Case 1 :06-cv-01 258-JDB Document 42 Filed 02/15/2007 Page 1
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IN THE UNITED STATES DISTRICT COURT
FOR THE
)
)
VALERIE PLAME WILSON and )
JOSEPH C. WILSON IV, )
)
Plaintiffs, )
) Civil Action No.
v. ) 06-CV-1258
)
KARL C. ROVE,
RICHARD B. CHENEY )
and JOHN DOES NO.
1-10, )
)
Defendants. )
___________________________________________________________________________)
OF HIS
MOTION TO DISMISS THE COMPLAINT
Theodore V. Wells, Jr. (DC Bar 468934) William H. Jeffress, Jr. (D.C. Bar 041152)
James L. Brochin (DC Bar 455456) Alex J. Bourelly (D.C. Bar 441422)
PAUL, WEISS, RIFKTh1D, WHARTON BAKER BOTTS, LLP
& GARRISON LLP
1285 Avenue of the
(212) 373-3089 (telephone) (202) 639-7890 (facsimile)
(212) 373-2217 (facsimile)
Case 1 :06-cv-01 258-JDB Document 42 Filed 02/15/2007 Page 2 of 32
TABLE OF CONTENTS
I. Plaintiffs Have No Cause of Action Under Bivens 2
A. Further Expansion of 13/vens is Unwarranted 2
B. Special Factors Counsel Hesitation in the Creation of Bivens Remedies Here 3
II. Plaintiffs Have Not Pleaded Violations of Constitutional Rights, Much Less the
“Clearly Established” Rights Necessary to Overcome Qualified Immunity 7
A. Count
I
B. Plaintiffs’ Equal Protection Claim is an Invalid Restatement of Their First
Amendment Retaliation Claim 12
C. Count III Does Not State a Viable Claim for Violation of Plaintiffs’ Right to
Privacy 14
D. Count IV Fails Because Plaintiffs Have Not Alleged Deprivation of a
Recognized Property Right 20
III. Plaintiffs’ Claims Are Barred by the Statute of Limitations 21
A. Plaintiffs’ Claims Are All Subject to a One-Year Limitations Period 21
B. There is No Basis for Tolling the Limitations Period 22
IV. Libby Must Be Dismissed from Count V 24
CONCLUSION 25
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TABLE OF
AUTHORITIES
CASES
*Am. Fed’n of Gov’tEmployeesv. HUD, 118 F.3d 786 (D.C. Cir. 1997) 14, 16
*Anderson v. Creighton, 483
Baltimore Sun Co. v. Ehrlich, 437 F.3d 410 (4th Cir. 2006) 10
Barry v. City of
Beattie v. Boeing Co.,
43 F.3d 559 (10th Cir. 1994) 4
*J3ivens v. Six
Unknown Federal Narcotics Agents, 403
Blackv. Stephens, 662 F.2d 181 (3d. Cir. 1981) 18
Blankenship v. Manchin, 471 F.3d 523 (4th Cir. 2006) 10
Bd. of Regents of State Colleges v. Roth, 408
J3oydv.
*Bush v. Lucas, 462
*Buterav. Dist. of Columbia, 235 F.3d 637 (D.C. Cir. 2001) 11, 12, 17, 18, 19,20
Cain v. Tigard-Tualatin Sch. District, 262 F. Supp.2d 1120 (D.Or. 2003) 7, 8
Chappellv. Wallace, 462
Chung v. US. Dep ‘t
of Justice, 333 F.3d 273 (D.C. Cir. 2003) 7
Cobb v. Pozzi, 363 F.3d 89 (2d Cir 2003) 14
Collins v.
Corr. Servs. Corp. v. Ivialesko, 534
Curley v.
Dangler cx rd. Dangler v. Yorktown Central Schools, 771
F.Supp. 625 (S.D.N.Y. 1991) 8
Davis v. Passman, 442
11
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Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977). 2
DeMuria v. Hawkes, 328 F.3d 704 (2d Cir. 2003) 13
Dep’toftheNavyv.Egan,484U.S.
518 (1988) 21
*Diamondv.
Doe v. Gates, 981 F.2d
1316 (D.C. Cir. 1993) 21
Dotson v. Griesa, 398 F.3d 156 (2d Cir. 2005) 6
Downie v. City of
*Estate of Phillips v. Dist. of Columbia, 455 F.3d 397 (D.C. Cir. 2006) 16, 19
FDIC v. Meyer, 510
Fitzgeraldv. Seamans, 553 F.2d 220 (D.C. Cir. 1977) 24
*Fraternal Order of Police v. Williams, 375 F.3d 1141 (D.C. Cir. 2004) 18, 19
Gillv. Pidlypchak, 389 F.3d 379 (2d Cir. 2004) 10
Harlow v. Fitzgerald, 457
*Hatfill v. Ashcroft, 404 F. Supp. 2d 104 (D.D.C. 2005) 5, 8, 9, 10
Haynes~orth v. Miller, 820
F.2d 1245 (D.C. Cir. 1987) 2
Hobson v.
Holly v. Scott, 434 F.2d 287 (4th Cir. 2006) 3
1-lunter v. Bryant, 502 U.S. 224 (1991) 11
In re Crawford, 194 F.3d 954 (9th Cir. 1999) 15
IP. v. DeSanti, 653 F.2d 1080 (6th Cir. 1981) 15, 16
Kallstrom v. City of
Kounitz v. Slaaten, 901 F.Supp. 650 (S.D.N.Y. 1995) 8, 9
Lairdv. Tatum, 408
Ivialley v. Briggs, 475
*McClam v. Barry, 697 F.2d 366 (D.C. Cir. 1983) 21,22,23
111
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Norrisv. Dist. of Columbia, 737 F.2d 1148 (D.C. Cir. 1984) . 18
Owens v. Okure, 488
Pittsley v. Warish, 927 F.2d 3 (1st Cir. 1991) 18
Plante v. Gonzalez, 575 F.2d 1119 (5th Cir. 1978) 15
R.~ W. W, Inc. v. City of
Ratl~ffv.
Saucier v. Katz, 533
Scarbrough v.
*Schweiker v. Chilicky, 487
*Seigertv. Gilley, 895 F.2d 797 (D.C. Cir. 1990) 11, 12,20,21
Sosa v. Alvarez-Macham, 542
So. Growers, Inc. v. Veneman, 2006 WL 2244628 (D.D.C. Aug. 4, 2006) 13
Spagnolav. Iviathis, 859 F.2d 223 (D.C. Cir. 1988) 6
Suarez Corp. Indus. v. McGraw, 202 F.3d 676 (4th Cir. 2000) 9
Tenetv. Doe, 544
Toolaprashadv. Bureau of Prisons, 286 F.3d 576 (D.C. Cir. 2002) 9, 10
Totten v.
Vukadinovich v. Bartels 853 F.2d 1387 (7th Cir. 1988) 14
Walls v. City of
Williamsv. Dep’t of Veteran Affairs, 879 F. Supp. 578 (E.D. Va. 1995) 6
Willowbrookv. Olech, 528
Wilson v. Garcia, 471
iv
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Wilsonv. Layne, 526
Zweibon v. Mitchell, 720
F.2d 162 (D.C. Cir. 1983) 10
STATUTES
D.C. Code § 12-301 22
Privacy Act, 5 U.S.C. § 552a 5, 7
Civil Service Reform Act, 5
U.S.C. § 7513, etseq 5
Westfall Act, 28 U.S.C. § 2679 25
The Intelligence Identities Protection Act of 1982, 50 U.S.C. §~ 421 et seq 5, 12
MISCELLANEOUS
R. Jeffrey Smith, Armitage Believes He Was
Novak’s Source on Plame,
WASH. POST, Sept. 8, 2006, at A3 19
v
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Plaintiffs do not dispute that, given “what is now known” about Robert Novak’s public disclosure “of Valerie Plame Wilson’s employment at the CIA, the allegation that Libby” is responsible for it “is preposterous.” Libby Mem. 1. There is no dispute that Novak learned of Mrs. Wilson’s CIA employment from another source—not from Libby. Nor can there be any dispute that, once Novak published the story, Mrs. Wilson’s CIA employment was public and nothing Libby had done or could do would alter that fact. For that reason alone, the suit against Libby is baseless. To hold Libby liable, plaintiffs will have to prove that Libby caused their alleged injuries. But the critical element of causation is clearly lacking: Novak published Mrs. Wilson’s CIA employment status—allegedly producing plaintiffs’ injuries—without information from Libby.’
In any event, the Amended Complaint must be dismissed for failure to state a claim. Although plaintiffs purport to proceed under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), for four of the five counts in the complaint, that implied cause of action has not been extended for 25 years and cannot be extended to this new context. Plaintiffs’ constitutional claims fail to establish a violation of their constitutional rights, much less the violation of clearly established law necessary to overcome qualified immunity. And, although plaintiffs struggle mightily to excuse their delay in bringing this action, their untimely claims are clearly barred by the statute of limitations.
‘Perhaps for that reason, plaintiffs litter their brief with language suggesting that the defendants were engaged in a conspiracy. See, e.g., P1. Opp. 24 (defendants “acted. . . as part of an overall conspiracy to retaliate”); 30 (“defendants . . . collectively publicized that Valerie Wilson was a secret operative”); 31 n. 3 (“concerted effort to reveal publicly Mrs. Wilson’s status”); 45 (“conspiracy”). But plaintiffs dropped their civil conspiracy claim in their Amended Complaint, contrast Complaint ¶~J 59-63 with Amended Complaint, when it became clear that Ambassador Armitage was the source for Novak’s newspaper column. And plaintiffs in any event do not suggest that Libby counseled, directed, or ordered Ambassador Armitage to reveal Mrs. Wilson’s status. As a result, there can be no claim that Libby caused the revelation.
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I. Plaintiffs
Have No Cause of Action
Under Bivens
A. Further Expansion of Bivens is
Unwarranted
Plaintiffs do not deny
that, for more than a quarter of a century, the Supreme Court ~‘has ‘consistently
refused to extend Bivens liability to any new context or categories of
defendants.” Libby Mem. 6 (quoting Corr.
Servs. Corp. v. Ivialesko, 534
471, 484-86 (1994); and to suits against corporations, Ivialesko,
534
Plaintiffs do not attempt to justify extending Bivens to
this new context. Rather, they argue that no extension is necessary because
“[i]t is already clearly established that Bivens remedies exist for
violation[s]” of the First and Fifth Amendments. P1. Opp. 51. The Supreme Court, however, does not extend J3ivens
constitutional amendment by constitutional amendment. Instead, it considers whether to extend J3ivens
to each “new context” and each new
“categor[y] of defendants”—and has refused every proposed extension for 25 years. Malesko, 534
2
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Amendment procedural due process claims asserted in Schweiker, 487
Here, plaintiffs do not seek the application of Bivens to a well-established context. They seek to extend it to a wholly new one: claims by former CIA employees and their spouses that the employees’ alleged status as a covert operative—i.e., the alleged fact that she was a spy-was wrongfully disclosed. Given the Supreme Court’s refusal to extend Bivens to any new contexts or classes of defendants for 25 years, the notion that a judicially created cause of action should be extended here borders on the absurd. Indeed, as discussed below, “special factors” do not merely “counsel” against that extension. They all but preclude it.
B. Special Factors Counsel Hesitation
in the Creation of Bivens Remedies
Here
The “reluctance to extend J3ivens is not without good reason.” Holly v. Scott, 434 F.3d 287, 289 (4th Cir. 2006). Because the cause of action under Bivens “is implied” by courts “without any express congressional authority whatsoever,” it is “hardly the preferred course.” Id. Rather, the “decision to create a private right of action is” generally “better left to legislative judgment,” Sosa v. Alvarez-Macham, 542 U.S. 692, 727 (2004), because Congress generally “is in a better position to decide whether or not the public interest would be served” by imposing a “new substantive legal liability,” Chilicky, 487 U.S. at 426-27; see Libby Mem 7-9.
1. The implied cause of action in Bivens cannot be extended
to new contexts if there are any “special factors counselling hesitation by the
court in the absence of affirmative action by Congress.” J3ivens, 403
3
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officials. The Supreme Court has declined to extend J3ivens to
First Amendment claims by ordinary government employees because “the
Legislature is far more competent than the Judiciary to carry out the necessary
‘balancing [of] governmental efficiency and the rights of employees.” Chilicky,
487
Bivens claims by supposed covert operatives, moreover, implicate difficult security and confidentiality concerns. They will, for example, often require the disclosure of confidential information, such as whether the plaintiff truly was a covert operative or, worse still, whether there are legitimate but confidential reasons for the disclosure. In Tenet v. Doe, 544 U.S. 1, 8-10 (2005), the Supreme Court invoked similar concerns in establishing an across-the-board rule barring putative spies from bringing breach of contract actions against the government:
“[P]ublic policy forbids the maintenance of any suit . . . which would inevitably
lead to the disclosure of matters which the law itself regards as
confidential.”
Plaintiffs’ rejoinder-that this case involves “no state secret to be protected, only ruined lives to be reclaimed,” P1. Opp. 49-is unresponsive. The point is not that Mrs. Wilson’s alleged status as a CIA operative is a state secret in this particular case. Rather, it is that the judiciary
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should not on its own create a cause of action that intrudes on the relationship between the government and its operatives, and that may require inquiry into the inner workings of the CIA and the White House on matters related to national security-such as who is a covert operative and whether disclosure was in the government’s interest-without any authorization or guidance from Congress and the Executive.
2. Here, moreover, Congress has carefully established a web of federal statutes that comprehensively regulate the issues being litigated. See Libby Mem. 9-14. All of plaintiffs’ claims stem from the alleged disclosure of Mrs. Wilson’s employment with the CIA. But Congress addressed that precise issue in the Intelligence Identities Protection Act (“IIPA”), 50 U.S.C. §~ 421-426, which establishes criminal penalties for the knowing disclosure of the names and identities of intelligence agents working undercover. Congress addressed unlawful government disclosure of an individual’s information and records more generally under the Privacy Act, 5 U.S.C. § 552a, which creates a private cause of action against the offending government agency, but not against individual officers. Finally, Mrs. Wilson alleges impairment of her ability to pursue her career at the CIA. Am. Compl. ¶ 43. The Civil Service Reform Act, 5 U.S.C. § 7513 et seq., and the regulations thereunder provide a comprehensive remedial scheme for federal employees alleging that they suffered adverse personnel actions.
That Congress has created comprehensive statutory regimes to address those areas-and determined whether and to what extent private causes of action should be recognized-precludes judicial supplementation through Bivens. Simply put, the courts ought not create a remedy Congress itself has chosen to withhold. For that reason, court after court has concluded that the Privacy Act and the Civil Service Reform Act preclude Bivens claims that fall within their penumbra. See, e.g., Hatfill v. Ashcroft, 404 F. Supp. 2d 104, 115-17 (D.D.C. 2005) (declining
5
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to recognize Bivens claim in light of Privacy Act); Williams
v. Dep ‘t of Veteran
Affairs, 879 F. Supp. 578, 586-87 (ED. Va. 1995) (same); Bush, 462
Plaintiffs argue that “these statutes are not a reason to preclude
a Bivens remedy because none provides a basis for relief” against the
defendants here. P1. Opp. 52; see id. at 51 (“only possible remedy”).
But the Supreme Court has flatly rejected that argument. “The absence of
statutory relief for a constitutional violation . . . does not by any means necessarily imply that
courts should award money damages against the officers responsible for the
violation.” Schweiker, 487
In Spagnola, for example, the D.C. Circuit held that the comprehensiveness of the Civil
Service Reform Act (“CSRA”) precluded a remedy for certain employees, even though the
CSRA itself provided them no relief, because “Congress’s omission
of a damages remedy . .
was anything but inadvertent.” 859 F.2d at 229; see Dotson, 398 F.3d at 168-69 (same).
Likewise here, Congress established a comprehensive set of statutes to address the disclosures at
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issue. Plaintiffs are confined to the remedies provided by those statutes, and the federal courts are not free to create, by judicial implication, remedies that Congress itself declined to provide.2
II. Plaintiffs
Have Not Pleaded Violations of Constitutional Rights, Much Less the
“Clearly Established” Rights Necessary to Overcome Qualified Immunity
A. Count I
1. IVIr.
Relying on his wife’s alleged injuries, Mr. Wilson (P1. Opp. 15) invokes Cain v. TigardTualatin School District, 262 F. Supp. 2d 1120 (D. Or. 2003). In that case, a high school coach retaliated against a student after the student’s parents filed complaints against the coach. In Cain, however, the parents alleged that they themselves had suffered injury as a result of the
2 Urging that the Privacy Act
cannot be a “special factor counseling hesitation,” plaintiffs attempt to
distinguish Downie v. City of IVIiddle burg Heights, 301 F.3d 688 (6th
Cir. 2002), and Chung v. U5~ Dep ‘t
of Justice, 333 F.3d 273 (D.C. Cir. 2003), by stating
that the holdings in those cases were predicated on the plaintiffs’ ability to
pursue viable claims under the Act. See P1. Opp. 53-54. But the
holdings in those cases were predicated on the Act’s applicability to the facts
alleged, not the availability of a remedy. Plaintiffs’ related contention that
the “White House Office . . . is
not an agency and therefore not subject to the Privacy Act,” P1. Opp. 52, is
doubly mistaken. First, to the extent Congress exempted the White House from
the Privacy Act, that reflects a congressional judgment about the need to avoid
intruding on that entity’s operations; the federal courts are not free to set
aside Congress’s judgment on that sensitive issue. In any event, the Privacy
Act defines ~‘agency” as “any executive department, military department,
Government controlled corporation, or other establishment in the executive
branch of the Government (including the Executive Office of the President).” 5
U.S.C. § 552(f).
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retaliation against their
son.
2. The Complaint Fails To Allege the Requisite Chill. Even where the plaintiff himself is injured, he must show that the retaliation chilled or threatened to chill his exercise of First Amendment rights. See Libby Mem. 22-23. Because he was not chilled in his speech, Mr. Wilson attempts to evade that requirement, urging that “[n]o case . . . has held that an individual who has been punished for his or her speech can establish a First Amendment violation only by proving that he or she was actually chilled in speaking.” P1. Opp. 13. That statement is inexplicable-Libby, Cheney, and Rove each explained in their motions to dismiss that, “[i]n Hatfill [v. Ashcroft, 404 F. Supp. 2d 104 (D.D.C. 2005)], this Court dismissed a First Amendment claim for precisely those reasons.” Libby Mem. 22-23; see Cheney Mem. 32-33;
~ Mr. Wilson’s suggestion that he has personally suffered an injury because his “family [is] in jeopardy,” P1. Opp. 16, likewise does not establish standing. The injury must be to Mr. Wilson or to his property-injuries to others (particularly speculative ones like an abstract claim of danger) are not sufficient.
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Rove Mem. 22. And plaintiffs themselves cite (P1. Opp. 15) Kounitz, which dismissed a First Amendment retaliation claim for failure to establish injury-in-fact where the plaintiff did not allege that his “speech actually has been chilled.” 901 F. Supp. at 654.
In Hatfill-decided by this Court less than two years ago-the plaintiff had been designated a “person of interest” in the s highly publicized investigation into the mailing of anthrax-laden envelopes to Senators. 404 F. Supp. 2d at 106-08. The plaintiff alleged, among other things, that the government had retaliated against him for publicly proclaiming his innocence and filing formal complaints with the FBI and Department of Justice Offices of Professional Responsibility. Id. at 117. This Court explained that, to make out a First Amendment retaliation claim, the plaintiff must prove that the “defendants’ actions effectively chilled the exercise of his First Amendment right.” Id. at 117-18 (quoting Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001)); see also Suarez Corp. Indus. v. 7V[cGraw, 202 F.3d 676, 686 (4th Cir. 2000) (same). This Court dismissed the plaintiff’s claim for failing to plead that element:
Here, Dr. Hatfill has continued to
exercise his First Amendment rights subsequent to his first public statement.
Accordingly, Dr. Hatfill, having failed to show that his First Amendment rights
were actually chilled, has not stated a claim for which relief can be
granted . .
Hatfill, 404 F. Supp. 2d. at 119 (emphasis in original). Likewise here, the alleged retaliation has done nothing to chill Mr. Wilson’s continued speech.
Unable to distinguish Hatfill, plaintiffs ignore it. They argue that Toolaprashad v. Bureau of Prisons, 286 F.3d 576 (D.C. Cir. 2002), requires them to plead only that “the harassment is likely to deter a person of ordinary firmness from that exercise.” P1. Op. 14 (quoting Toolaprashad, 286 F.3d at 585) (internal punctuation omitted). However, as Hatfill explained, the “person of ordinary firmness” standard in Toolaprashad does not replace but rather supplements the “actual chill” requirement, ensuring that any actual chill the plaintiff
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claims to have suffered was, in fact, objectively reasonable. Hatfill,
404 F. Supp. 2d. at 118-19. As
the court stated, “[a]llegations of a subjective ~‘chill” are not an adequate
substitute for a claim of specific present objective harm or a threat of
specific future harm.” Id. at
118 (quoting Laird v. Tatum, 408 U.S. 1, 13-14 (1972)).~
Plaintiffs’ assertion that they ~‘need claim only something more than de
minimis harm,” P1. Opp. 14, is equally unavailing. Here, they have plead no
harm at all to Mr. Wilson, much
less some chilling of his willingness to engage in free expression. Under Hatfill,
that is fatal to their claim.5
3. Libby Is Entitled To Quahfied Immunity. Plaintiffs do not dispute that qualified immunity shields “government officials performing discretionary functions” from suit so long as “their conduct does not violate” the plaintiffs’ “clearly established” rights. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “Clearly established” means “settled, indisputable law” involving “basic, unquestioned. . . rights.” Zweibon v. 7V[itchell, 720 F.2d 162, 172-73 (D.C. Cir. 1983). It is not enough that “the relevant ‘legal rule” or ~‘right” is ~‘clearly established” at a high level of generality-rather, the “contours of the right must be sufficiently clear that a reasonable official
~ The D.C. Circuit in Toolaprashad does not appear to have
required the plaintiff-a prisoner who claimed to have been transferred in
retaliation for filing grievances-to establish that his speech actually had
been chilled. But it is difficult to read too much into that silence, as Hatfill
makes clear. In any event, the Second Circuit has held that a lesser
standard applies in cases like Toolaprashadin “the prison context.” Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004). By contrast,
in cases ~‘involving criticism of public officials by private citizens,” there
is “an actual chill requirement for First Amendment retaliation claims.” Id.
~ The question, moreover, is not whether any person of ordinary firmness would be deterred, but whether a ~‘similarly situated” person would be deterred. J3lankenship v. Manchin, 471 F.3d 523, 531(4th Cir. 2006) (relevant standard was “public official of ordinary firmness”); see also Baltimore Sun Co. v. Ehrlich, 437 F.3d 410, 418-19 (4th Cir. 2006) (relevant standard was “reporter of ordinary firmness”). Thus, while plaintiffs are not required to plead that someone as “truly inspiring” and “courageous” as Mr. Wilson is alleged to be would find themselves chilled, they must establish that an experienced businessman, diplomat, and/or former ambassador of ordinary firmness would be deterred by the alleged retaliation. See Am. Compl. ¶ 8. Nowhere in the Complaint have plaintiffs alleged that a “person of ordinary firmness” from the general public would be deterred by the alleged retaliation, much less a person of Mr. Wilson’s extensive experience, worldliness, and connections.
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would understand that what he is doing violates that
right.” Siegert v. Gilley, 895 F.2d 797, 802 (D.C.
Cir. 1990) (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)) (emphasis added), aff’d 500 U.S. 226 (1991). Consequently,
qualified immunity shields the defendant from suit unless, “on an objective
basis, it is obvious that no reasonably competent officer” confronting the
specific circumstances before the defendant “would have concluded” that the
conduct was lawful. Ivialley v. Briggs, 475
U.S. 335, 341 (1986). “[I]f officers of reasonable competence could
disagree,” then “immunity should be recognized.” Id. Qualified immunity thus provides “ample
room for mistaken judgments’ by protecting ‘all but the plainly incompetent or
those who knowingly violate the law.” Hunter v. Bryant, 502 U.S. 224, 229 (1991) (quoting Ivialley,
475 U.S. at 343, 341).
Under
those standards, it is clear that Libby is entitled to qualified immunity.
Plaintiffs have cited absolutely no authority for the proposition that
merely disclosing that a person’s spouse is employed by the CIA constitutes
retaliation sufficient to chill an experienced businessman, diplomat, and
ambassador in the exercise of his First Amendment rights. Moreover, in Hatfill,
this Court held that no constitutional violation occurs where the
individual is not actually chilled.
See also Curley, 268 F.3d at 73
(“Where a party can show no change in his behavior, he has quite plainly
shown no chilling of his First Amendment right to speech.”). Accordingly, a competent
officer could reasonably have believed that the conduct here-which caused no
chill-would not violate Mr. Wilson’s First Amendment rights. Plaintiffs nonetheless assert that it is
“clearly established” that “[t]he First Amendment
protects individuals from being punished by the government for their expression.” P1. Opp.
12. That, however, defines “the relevant constitutional right in
[such] overly general terms” as to “strip the qualified immunity defense of all
meaning.” Butera v. Dist. of Columbia, 235
F.3d
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637, 646 (D.C. Cir. 2001). Qualified immunity cannot be denied in a due process case, for example, simply because “the right to due process of law is quite clearly established by the Due Process Clause.” Anderson, 483 U.S. at 639. Instead, the qualified immunity “inquiry . . . must be undertaken in light of the specific context of the case, not as a broad general proposition.” Saucier v. Katz, 533 U.S. 194, 201 (2001). The “contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Siegert, 895 F.2d at 802 (quoting Anderson, 483 U.S. at 640) (emphasis added). In Hatfill, this Court found no First Amendment violation absent an actual chilling effect. A fortiori, a reasonable officer could have believed there was no violation here, where no chilling occurred either.6
B. Plaintiffs’
Equal Protection Claim is an Invalid Restatement of Their First Amendment
Retaliation Claim
1. Plaint~f~fs Have No Equal Protection Claim. Plaintiffs’
equal protection claim is likewise without merit. Plaintiffs do not allege
class-wide discrimination on the basis of some prohibited characteristic.
Instead, they urge a “class of one” equal protection claim under Village of
Willowbrook v. Olech, 528 U.S. 562
(2000), because defendants “vindictive[ly]” and “illegitimate[ly]” disclosed
Mrs. Wilson’s identity in retaliation for Mr. Wilson’s speech. Am. Compl. ¶~J 50-54.
But, as we have already made clear (Libby Mem. 23-24), the courts have
6 Plaintiffs flatly err when they summarily assert that the
criminal prohibition in the Intelligence Identities Protection Act, 50
U.S.C. § 421, other statutes, and comments by
former Presidents gave Libby “fair warning” that his ~‘conduct was wrong,”
thereby precluding qualified immunity. P1. Opp. 60. Plaintiffs neither attempt
to prove that Libby violated, nor assert claims based on violations of, any of those statutes. Instead, plaintiffs assert
violations of their constitutional rights. Under Supreme Court
precedent, qualified immunity must be granted unless the “right alleged to
have been violated” was ~‘ clearly established”-i. e. ,“the contours of the right must have
been sufficiently clear that a reasonable official would understand that what
he is doing violates that right.” Saucier, 533 U.S. at 202 (emphasis
added). The provisions of the U.S. Code that plaintiffs cite cannot “clearly
establish” the scope of the constitutional rights plaintiffs assert,
much less make it obvious to every reasonable officer that his conduct violates
those rights.
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universally rejected efforts, like plaintiffs’, to transmogrify First Amendment retaliation claims into equal protection violations. Plaintiffs do not dispute that those cases by their terms preclude this equal protection claim. And they concede that their equal protection claim rests on the assertion that defendants’ actions were “retaliation for Mr. Wilson’s speech.” P1. Opp. 17.
Plaintiffs nonetheless urge that the Supreme Court’s decision in Olech, which reaffirmed class-of-one claims, effectively overruled those decisions. Not so: Numerous post-Olech cases-including cases from this Court-continue to hold that the Equal Protection Clause does not protect against retaliation for speech. See, e.g., So. Growers, Inc. v. Veneman, No. 05-1821, 2006 WL 2244628, at *1.2 (D.D.C. Aug. 4, 2006) (“the Fifth Amendment does not confer a general right to be free from retaliation”); R.S. W. W., Inc. v. City of Keego Harbor, 397 F.3d 427, 440 (6th Cir. 2005) (same); Boyd v. Ill. State Police, 384 F.3d 888, 898 (7th Cir. 2004) (“the right to be free from retaliation may be vindicated under the First Amendment or Title VII, but not the equal protection clause”). No court has disavowed its pre-Olech decisions. Both before Olech and after, claims arising from “vindictive” retaliation against a citizen because of his speech must be asserted as First Amendment rather than equal protection claims.7
The cases cited by plaintiffs (P1. Opp. 18-19) for the contrary
proposition do not involve retaliation for protected speech. Instead, they
alleged animus against homosexuals, Scarbrough v. Morgan County Bd. of
Educ., 470 F.3d 250, 261 (6th Cir.
2006); personal animus, DeMuria v. Hawkes, 328
F.3d 704, 706-07 (2d Cir. 2003); or prior activities, Cobb v. Pozzi, 363 F.3d 89, 110
~ By plaintiffs’ own admission, Olech merely reaffirmed the longstanding existence of class-ofone
claims. Plaintiffs’ Br. 17 (noting that Olech relied on class-of-one cases “dating back to
1923”); see also id. at
19 ni. So it is hardly relevant that some cases rejecting
retaliation-based equal protection claims predate Olech.
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(2d Cir. 2003) (employee who allegedly engaged in an “unlawful job action”).8 None suggests that a First Amendment speech-retaliation claim may be recast as a class-of-one equal protection claim. Vukadinovich v. Bartels 853 F.2d 1387, 1391-92 (7th Cir. 1988) (rejecting equal protection claim as a “mere rewording of plaintiff’s First Amendment-retaliation claim”).
2. Libby Is Entitled To Quahfied Immunity. Libby
is in any event entitled to qualified
immunity. Plaintiffs can cite not one case finding an equal protection
violation based on an officer’s retaliation for protected speech-and myriad
cases reject that theory. That conclusively
demonstrates that there is no clearly established equal protection right
in these circumstances. See RatlW v.
DeKalb County, 62 F.3d 338, 340 (11th Cir. 1995) (finding qualified
immunity because “no clearly established right exists under the equal
protection clause to be free from
retaliation”).
C. Count III Does
Not State a Viable Claim for Violation of Plaintiffs’ Right to Privacy
1. Plaintiffs’ third Bivens claim (Count III) rests on their assertion that the Fifth Amendment’s Due Process Clause “prohibits government officials from violating any individual’s right to privacy by publicly disclosing personal information.” Am. Compl. ¶ 56. Plaintiffs do not dispute, however, that the Supreme Court has never expressly held that the Constitution secures a general right to nondisclosure of personal information. See Libby Mem.
24-25. They do not deny that the D.C. Circuit has expressed “grave doubts as to the existence of a constitutional right of privacy in the nondisclosure of information.” Am. Fed’n of Gov ‘t Employees v. HUD, 118 F.3d 786, 791 (D.C. Cir. 1997). And plaintiffs nowhere deny that the
8 Plaintiffs characterize Pozzi as a “class of one’ First Amendment” case. P1. Opp. 19. They
fail to mention, however, that the Second Circuit found this claim
“insufficient as a matter of law.” Pozzi, 363 F.3d at 110.
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Sixth Circuit, in J.P. v. DeSanti, 653 F.2d 1080, 1090 (6th Cir. 1981), held that ~‘the Constitution does not encompass a general right to nondisclosure of private information.”
Nonetheless, plaintiffs cite cases from other circuits that
allegedly establish a constitutional right to nondisclosure of personal
information. P1. Opp. 21. In each and every one of those cases, however, the
courts actually held that the plaintiffs had failed to establish an
actionable violation based on the disclosure. For example, in Walls v. City
of Petersburg, 895 F.2d 188 (4th
Cir. 1990), the Fourth Circuit observed that the right to privacy
extends to “matters relating to marriage, procreation, contraception, family
relationships, and child rearing and education.” Id. at 192 (citations
omitted). Nevertheless, the Fourth Circuit upheld a police department job
application that required disclosure of the plaintiff’s ~‘Homosexual
Relations,” “Marriages, Divorces, etc., and Children,” ~‘Arrests or Convictions
of Family Members,” and “Financial Information.” Id. at 193-95.
Likewise, in United States v.
Westinghouse Electric Corp., 638
F.2d 570 (3d Cir. 1980), the Third Circuit held that a subpoena for
medical records did not violate the plaintiff’s constitutional rights,
notwithstanding the fact that medical records “may contain intimate facts of a
personal nature.” Id. at 577,
580. In In re Crawford, 194
F.3d 954 (9th Cir. 1999), the Ninth Circuit held that requiring non-attorneys
to disclose their social security numbers on publicly filed bankruptcy
documents did not violate the Constitution. Id. at
960. And the Second and
Fifth Circuits have both rejected claims that financial disclosure laws violate
a constitutional right to informational privacy. Barry v. City of New York, 712
F.2d 1554, 1562 (2d Cir. 1983); Plante v. Gonzalez, 575 F.2d 1119, 1138 (5th Cir. 1978).
At most, those cases acknowledge the possibility of a right to informational privacy in some circumstances. But they cannot overcome the D.C. Circuit’s “grave doubts.” More fundamentally, those cases make it clear that, to the extent the Constitution affords a right to
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keep certain information
private, that right can extend only to deeply private matters that are of no
governmental concern-marriage, procreation, and the like. See Libby
Mem. 26 n.7; Walls, 895 F.2d at 192.
They nowhere suggest that the Constitution affords CIA employees or other
operatives a right to keep their
employment status secret.
2. For the same reasons, plaintiffs cannot overcome qualified immunity. The D.C. Circuit at the very least has expressed “grave doubts as to the existence of a constitutional right of privacy in the nondisclosure of information,” Am. Fed ‘n of Gov ‘t Employees, 118 F .3 d at 791, and the Sixth Circuit has held that no such right exists, DeSanti, 653 F.2d at 1090; see p. 14, supra. Where, as here, there is judicial disagreement or uncertainty on whether the constitutional right exists, a defendant is entitled to immunity. “If judges thus disagree on a constitutional question, it is unfair to subject [government officials] to money damages for picking the losing side of the controversy.” Wilson v. Layne, 526 U.S. 603, 618 (1999). Moreover, it is far from clearly established that, if such right existed, it would extend to nondisclosure of employment status-information well beyond the sorts of intensely personal privacy interests historically protected under the Fifth Amendment.
3. In a last-ditch attempt to salvage their “right to privacy” claim, plaintiffs attempt to recast it as a “state endangerment” claim. See P1. Opp. 22-28. But no “state endangerment claim” appears in Count Ill-or anywhere else. When a plaintiff asserts a substantive due process claim, the court must “focus on the allegations in the complaint to determine how [plaint~ff] describes the constitutional right at stake and what the [defendant] allegedly did to deprive her. . . of that right.” Estate of Phillips v. Dist. of Columbia, 455 F.3d 397, 403 (D.C. Cir. 2006) (quoting Collins v. Harker Heights, 503 U.S. 115, 125 (1992)) (emphasis added). In this case, Count III by its terms asserts a violation of plaintiffs’ “Fifth Amendment [r]ight to
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[p]rivacy.” Amended Complaint at 20 (Count III heading); id. ¶ 56 (alleging that the defendants “violate[d] the Due
Process Clause . . . which
prohibits government officials from violating any individual’s right to privacy by
disclosing personal information”) (emphasis added). A state endangerment claim,
by contrast, is not a privacy claim at all. It is instead founded on the notion
that the Fifth Amendment affords individuals a right to personal
security-i.e., a “right to protection . . . from . . . violence.”
Butera, 235 F.3d at 652. Because Count III alleges a right to privacy, not to freedom from violence, there
is no state endangerment claim in this case.
In any event, Count III
falls well short of establishing the elements of a state endangerment
claim, because plaintiffs have failed to plead truly outrageous conduct
resulting in physical injury. For
example, in Butera, a
former crack cocaine user acting as an informant was beaten to death while
participating in an undercover drug buy. 235 F.3d at 640. Recognizing the state
endangerment doctrine for the first time, the D.C. Circuit held:
[A]n individual can assert a substantive
due process right to protection by the [government] from third-party violence
when [government] officials affirmatively
act to increase or create the danger that ultimately results in the
individual’s harm.
Id. at 651
(emphasis added). The D.C. Circuit cautioned, moreover, that a plaintiff
must also show that the conduct was “‘so
egregious, so outrageous, that it may fairly be
said to shock the contemporary conscience.” Id. (quoting County
of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)). The court noted that
“this stringent requirement” is necessary to differentiate substantive due process claims from ordinary
tort law. Id.9
~ The J3utera court did not address whether the
particular conduct at issue there “shocked the conscience.”
Instead, it held that, because the state endangerment rule was not clearly
established when the defendants acted, the defendants were therefore
entitled to qualified immunity. 235
F.3d at 652-53.
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Here, plaintiffs do not plead the “key requirement” that the
misconduct “increase or create the danger that results in harm to the
individual,” J3utera, 235
F.3d at 650 (emphasis added); see
also id. at 651 (violation occurs only where State’s action “ultimately
results in the individual’s harm”). The
plaintiff in Butera, for
example, satisfied the “actual harm” requirement because he was brutally
beaten to death. By contrast, plaintiffs here plead only that they “fear for
their safety and for the safety of their children,” and that “the disclosure of
Mrs. Wilson’s covert identity makes her and her family a target
for those persons and groups who bear hostility to the United States.”
Am. Compl. ¶ 42.
Plaintiffs also fail to allege facts demonstrating that the conduct was “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience,’” Butera, 235 F.3d at 651 (quoting Lewis, 523 U.S. at 847 n.8)—a “threshold” requirement for any state endangerment claim, see Fraternal Order of Police v. Williams, 375 F.3d 1141, 1145 (D.C. Cir. 2004). Courts typically find the “conscience shocking” threshold met only in extreme circumstances, such as where government officials deliberately inflict physical harm (or threaten to inflict imminent physical harm) on the plaintiff See, e.g., Norris v. Dist. of Columbia, 737 F.2d 1148, 1151 (D.C. Cir. 1984) (corrections officers’ brutal and habitual beatings of prisoner); Black v. Stephens, 662 F.2d 181, 189 (3d Cir. 1981) (undercover officer’s brandishing firearm 18 inches from plaintiff’s head, with plaintiff’s wife “in the precise line of fire,” and then threatening to shoot); contrast Pittsley v. Warish, 927 F.2d 3, 7 (1st Cir. 1991) (police officer’s threat to four- and ten-year-old children that “if we see your father on the streets again, you’ll never see him again” does not shock the conscience). As Butera makes clear, “the sort of official action
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most likely to rise to the conscience-shocking level” is “conduct intended to injure” the plaintiff. 235 F.3d at 651 (quoting Lewis, 523 U.S. at 848-49) (emphasis added).’°
Notwithstanding plaintiffs’ rhetoric, they cannot show that the alleged retaliation was intended to place plaintiffs in physical danger-much less that the alleged retaliation was so egregious that it “shocks the conscience.” Instead, they blithely assert that defendants “had full knowledge of the potential consequences of their actions.” P1. Opp. 24. The Amended Complaint, however, contains no such allegation. It states that Libby knew and disclosed to
reporters that “Wilson’s wife worked at the CIA,” see Am. Compl. ¶~J 19.e., f., h., 1., p., r., t., x., 20, 24, but nowhere alleges that he knew that Mrs. Wilson was active in undercover operations. Nor could such a claim be made.” And if Libby did not know that Mrs. Wilson was undercover, he could have had no reason to believe that disclosing that she “worked at the CIA” would subject her to increased risk of physical harm. For that reason too, plaintiffs’ belated “state-created endangerment” theory must fail.’2
‘° Plaintiffs argue in passing that they should only be required to prove ~‘deliberate indifference,” as opposed to intentional conduct, on the part of the defendants. P1. Opp. 24. As a preliminary matter, the deliberate indifference standard “applies only in circumstances where the State has a heightened obligation toward the individual,” FOP, 375 F.3d at 1146, and plaintiff has not established that Libby owed Mrs. Wilson any ~‘heightened obligation.” In any event, “[d]eliberate indifference must still be conscience-shocking in order to state a substantive due process claim.” Phillips, 455 F.3d at 403.
~ Libby, like other defendants, was not told that Mrs. Wilson was a covert operative. See R.
Jeffrey Smith, Armitage Believes He Was Novak’s Source on Plame, WASH. POST, Sept. 8, 2006,
at A3 (As Ambassador Armitage explained to reporters, the memorandum from which he learned
of Mrs. Wilson’s employment with the CIA ~‘did not mention her covert status.”).
12 Plaintiffs rely heavily on
the Sixth Circuit’s decision in Kallstrom v. City of Columbus, 136
F.3d 1055 (6th Cir. 1998), for the proposition that mere disclosure of employment status may be actionable under the state endangerment doctrine. See P1. Opp. 25-27. Kallstrom, however, did not apply the “conscience shocking” standard to the defendants’ conduct. Whatever the rule may be in the Sixth Circuit, in the D.C. Circuit it is clear that “[t]he conscience-shock inquiry is a ‘threshold question” in evaluating any state endangerment claim. FOP, 375 F.3d at 1145.
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In any event, Libby is entitled to qualified immunity on this claim, too. Even if the state endangerment theory is generally accepted as an abstract matter, its “contours” were not “sufficiently clear” that it would have been “obvious” that the conduct here “would violate [plaintiff’s] right.” Siegert, 895 F.2d at 803. To this day there is ~‘little consistency in courts’ explanations of the types of actions that would amount to constitutional liability” under the state endangerment theory. Butera, 235 F.3d at 653. Plaintiffs cite no case holding that disclosing a person’s employment status “shocks the conscience,” much less that it does so where, as here, the officer has no reason to believe that the disclosure would place the person at risk of imminent physical harm, and no physical harm actually results. Because “officers of reasonable competence” certainly could disagree as to whether Libby’s alleged actions violated the Constitution under the state endangerment doctrine, Libby is entitled to qualified immunity. IvIalley, 475 U.S. at 341.
D. Count IV Fails
Because Plaintiffs Have Not Alleged Deprivation of a Recognized Property
Right
Finally, Mrs. Wilson alleges that Libby deprived her of her property right in continued
employment as a covert CIA operative. P1. Opp. 28.’~ But the Amended Complaint fails to establish that Mrs. Wilson had a “legitimate claim of entitlement” to employment as an operative under Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972).
1. As an initial matter, Mrs. Wilson acknowledges that she continued to be employed by the CIA long after her allegedly covert identity was revealed. P1. Opp. 30; Am. Compl. ¶ 7. Her due-process claim thus boils down to the assertion that she had a property right not just to continued CIA employment, but to a specific position-covert agent-within the CIA. ‘~ Plaintiffs make no claim that Mrs. Wilson might have been denied a property or liberty interest
in obtainingfidure government employment. Nor could they. See Libby Mem. 27-28.
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Mrs. Wilson, however, points to no government contract, regulation, statute, or caselaw that gives her an entitlement to such a job. The law in any event is crystal-clear that CIA employees have no right to continued employment at all, much less to continued employment in a covert status. Doe v. Gates, 981 F.2d 1316, 1320-21 (D.C. Cir. 1993); cf Dep’t of the Navy v. Egan, 484 U.S. 518, 528 (1988) (“It should be obvious that no one has a ‘right’ to a security clearance.”). That too forecloses plaintiffs’ claim. Plaintiffs nonetheless urge that Mrs. Wilson had a right to continued covert employment unless terminated by the CIA Director. D.C. Circuit precedent is to the contrary: “The law is clear that if a statute relegates termination decisions to the discretion of the Director, no property entitlement exists.” Gates, 981 F.2d at 1320 (emphasis added).
2. Even if those issues were subject to debate, Libby is entitled to qualified immunity. Plaintiffs have cited no precedent supporting their claim that Mrs. Wilson had a Fifth Amendment property right in continued CIA employment, much less employment as a covert operative. They thus have failed to meet their burden of showing that her right was so “clear” that any competent officer “would understand that what he is doing violates that right.” Siegert, 895 F.2d at 803.
III. Plaintiffs’ Claims Are Barred by the Statute of Limitations
A. Plaintiffs’
Claims Are All Subject to a One-Year Limitations Period
In the D.C. Circuit, the statute of limitations applicable to a Bivens action is borrowed from the most “analogous” cause of action under local law. 7V[cClam v. Barry, 697 F.2d 366, 373 (D.C. Cir. 1983). In determining which state law is most analogous, the relevant comparison is not “the interests they protect,” id., but “the facts that must be litigated in trying them,” id. at
374. Thus, whenever the Bivens claim and a state cause of action ~‘are so alike that plaintiffs can
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be expected to plead the
common law claim as a pendent claim in constitutional suits, then the same
judgment about repose applies to both claims.” Id. at 375.
Plaintiffs concede that Count III of the Amended Complaint, their Fifth Amendment right-to-privacy claim, is “analogous to the D.C. common law tort of public disclosure of private facts,” and therefore subject to the one-year statute of limitations provided for that tort in D.C. Code Ann. § 12-301(4). P1. Opp. 39. They argue, however, that “[t]he other constitutional tort claims . . . have no direct corollary in state law and thus are subject to the catch-all three-year limitations period provided in D.C. Code Ann. § 12-301(8).” Id. Under 7V[cClam, however, the focus is on “thefacts that must be litigated,” not the interests protected. 697 F.2d at 37414 Here, the underlying facts are the same for each of plaintiffs’ claims-they are all predicated on the alleged disclosure of Mrs. Wilson’s employment with the CIA. As a result, the one-year limitations period applicable to “public disclosure of private facts,” D.C. Code Ann. § 12-301(4), governs all of plaintiffs’ claims, notwithstanding plaintiffs’ effort to gussy up their “public disclosure” claims in First Amendment, equal protection, and due process garb.
Plaintiffs also cite Owens
v. Okure, 488 U.S. 235 (1989),
for the proposition that, “where a
cause of this nature presents multiple claims with differing statutes of
limitations, the ‘residual’ statute of limitations applies to all
claims.” P1. Opp. 40. But Owens was
a § 1983 case, and it relied on a prior § 1983 decision, Wilson v. Garcia, 471 U.S. 261 (1985), as well as § 1983’s unique legislative history. See Owens, 488
U.S. at 240-41; Wilson, 471 U.S. at 278, 280. That precedent and
legislative history has no bearing on the judicially created cause of action
under Bivens. Besides,
plaintiffs concede that the D.C. Circuit has not “expressly incorporated the Owens
approach for Bivens claims.” P1. Opp. 41. Nor has the D.C.
Circuit overruled 7V[cClam.
‘~ The D.C. Circuit recognized that constitutional claims under J3ivens will often “differ from closely analogous common-law claims in the interests they protect.” 697 F.2d at 373.
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As a result, this Court must follow McClam’s command to borrow the limitations period from the most “analogous” cause of action under local law, 697 F.2d at 373.
B. There is No
Basis for Tolling the Limitations Period
Plaintiffs also argue that their claims are timely because they
did not learn of the most important facts until Special Counsel Fitzgerald
filed an indictment against Libby on October 28, 2005. P1. Opp. 45. In effect,
plaintiffs urge that, until the allegations in the indictment were laid out for
them to cut-and-paste into a complaint, they “did not have knowledge of their
claims.” P1. Opp. 45. But that is not the law. As plaintiffs concede, “[a]
cause of action normally accrues for statute of limitations purposes when the
plaintiff ‘has either actual notice of her cause of action or is deemed to be
on inquiry notice . . . .“ P1.
Opp. 42 (quoting Diamond v. Davis, 680 A.2d 364 (D.C. Ct. App. 1996).
Here, plaintiffs at least had inquiry notice when Robert Novak published his
article on July 14, 2003, disclosing that, according to “administration
officials,” “Valerie Plame is an agency operative on weapons of mass
destruction.” Am. Compl. ¶ 14.
Plaintiffs nevertheless contend that they did not have “knowledge
of their claims” because the article did not mention the defendants by name.
But ~‘notice” does not mean
having all of the facts and the precise names of all of the potential
defendants handed to one on a silver platter:
In every case, the plaintiff has a duty to investigate matters affecting her affairs with reasonable diligence under all of the circumstances. Once the plaintiff actually knows, or with the exercise of reasonable diligence would have known, of some injury, its cause-in-fact, and some evidence of wrongdoing, then she is bound to file her cause of action within the applicable limitations period, measured from the date of her acquisition of the actual or imputed knowledge.
Diamond, 680 A.2d
at 381. Thus, while a
“plaintiff’s knowledge of the grounds for a suit must generally extend to awareness of the persons responsible for
plaintiff’s injury,” that ~‘by no means impl[ies] that a plaintiff may postpone
suit until he knows every defendant by name and
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title.” Hobson v. Wilson, 737 F.2d 1, 36 (D.C. Cir. 1984). Here, Novak’s article stated that his sources were “two senior administration officials.” Am. Compl. ¶ 14. That the article did not identify “every defendant by name and title,” Hobson, 737 F.2d at 36, is irrelevant-it was certainly enough information to put plaintiffs on notice of their claims, or at a minimum to trigger their duty “to investigate matters affecting [their] affairs with reasonable diligence.” Diamond, 680 A.2d at 381. Plaintiffs have not alleged that they made any attempt to identify the “two senior administration officials,” much less that they could not have succeeded in identifying the defendants through reasonable diligence.’5
Finally, plaintiffs argue that the statute of limitations should
be tolled because “the defendants fraudulently concealed their involvement in
this matter.” P1. Opp. 47. But, as plaintiffs concede (P1. Opp. 44), “the
doctrine of fraudulent concealment does not come into play, whatever the
lengths to which a defendant has gone to the conceal the wrongs, if a plaintiff
is on notice of a potential claim.” Hobson,
737 F.2d at 35. Here, there is no
doubt that plaintiffs were “on notice
of a potential claim” from the time Novak’s article was published.
Moreover, the doctrine of fraudulent
concealment only applies where the defendant has attempted to conceal the wrongful
act, not his role in it. Id.
at 33 (fraudulent concealment
applies where “the fraud has
been concealed”) (emphasis added). There is no allegation that the allegedly
wrongful
‘~ Fitzgeraldv. Seamans, 553 F.2d 220 (D.C. Cir. 1977), does not help
plaintiffs. Fitzgerald was a deputy in
the Air Force who was terminated after he testified before a Congressional subcommittee
on military procurement cost problems. Fitzgerald knew immediately that he was being punished for his testimony and that Air
Force officers were responsible for the wrongful termination. Years
later, he discovered that an official in the White House had also been involved in his
dismissal. He did not bring suit within the limitations period, and the D.C.
Circuit upheld dismissal of the claims against all Air Force officials, even those whose names
he did not know at the time of the termination. Id. at 229. The court held that the
limitations period had not run as to
the White House official, however, because he was in “a different center of
power.” Id. Here, by contrast,
Novak’s article clearly identified the “center of power” in which the defendants
were employed-the administration. That was sufficient to put plaintiffs on
notice of their claims.
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act here was concealed—indeed,
given that the alleged wrongful act is the public disclosure of information, it
could not possibly have been concealed.
IV. Libby
Must Be Dismissed from Count V
As discussed in detail in our opening brief (at 28-30), Count V must be dismissed. As a federal employee acting within the scope of employment at the time of the alleged conduct, Libby has absolute immunity from state-law tort claims under the Westfall Act, 28 U.S.C. § 2679(b)(1). The United States thus has filed a Westfall Act “scope certification” asking to substitute the United States as the sole defendant. Although plaintiffs challenge the United States’ certification, that challenge is without merit for the reasons given in the government’s briefs.
CONCLUSION
For the foregoing reasons and those stated in Libby’s opening
memorandum, plaintiffs’ claims should
be dismissed.
Dated: February 15, 2007 Respectfully submitted,
/5/ William H. Jeffress, Jr.
Theodore
V. Wells, Jr. William H.
Jeffress, Jr.
(DCBarNo.
468934) (DCBarNo. 041152)
James
L. Brochin Alex J. Bourelly
(DCBarNo.
455456) (DCBarNo. 441422)
Paul,
Weiss, Rifkind, Wharton Baker Botts LLP
& Garrison
LLP 1299 Pennsylvania
Avenue, NW
1285 Avenue of the Americas Washington, DC 20004
New
York, NY 10019-6064 Tel: (202)
639-7751
Tel:
(212) 373-3089 Fax: (202)
585-1087
Fax: (212) 373-2217
Counselfor Defendant I. Lewis
Libby
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Case 1 :06-cv-01 258-JDB Document 42 Filed 02/15/2007 Page 32 of 32
CERTIFICATE OF SERVICE
I hereby certify that on
this 15th day of February, 2007, a true and correct copy of I. Lewis Libby’s
Reply in Support of His Motion to Dismiss the Complaint was filed
electronically. Notice of this filing will be sent to all parties by operation
of the Court’s electronic filing system. Parties may access this filing through
the Court’s system.
/s/
William H. Jeffress, Jr.
William
H. Jeffress, Jr.
(DCBarNo.
041152)
Baker
Botts LLP
1299
Pennsylvania Avenue, NW
Washington, DC 20004
Tel: (202) 639-7751
Fax: (202) 585-1087