OICKLE FINAL FOR PDF 6/30/2010 12:37:31 PM

COMMENTS
ALL THE VICE PRESIDENTS MEN:
HOW THE COURT IN WILSON V.
LIBBY MISINTERPRETED THE
PRIVACY ACT AND DENIED A
REMEDY FOR THE ILLEGAL
DISCLOSURE OF VALERIE PLAME
WILSONS COVERT CIA IDENTITY

Kristin I. Oickle*
Abstract: On July 14, 2003, Robert Novaks weekly column dismissed Joe
Wilsons 2002 report for the CIA, which concluded that an Iraqi purchase of
nuclear material was highly unlikely. According to Novak, Wilsons report
was considered insignificant, and neither the President of the United States
nor the Director of the CIA ever saw the report before American soldiers
were sent to Iraq in 2003. Wilson, a former diplomat, had only been put up
for the low-level mission due to his wife, Valerie Plame Wilson, a CIA
operative. To most reading Novaks column in the Monday morning edition
of the Washington Post, the reference to Ms. Wilson was fleeting and hardly
noticeable. But to Ms. Wilson, her husband, and the CIA, the significance
was both immediately apparent and devastating. Ms. Wilsons status as a
covert CIA agent was confidential, and revealing her identity destroyed her
career, put her and her family in danger, and compromised important U.S.
intelligence.
In a subsequent civil suit against federal officials for constitutional violations
and tortious invasion of privacy, the U.S. Court of Appeals for the District of
Columbia denied the Wilsons any remedy. After examining the availability

*
Candidate for Juris Doctor, New England School of Law (2010). B.A., Political Science,
Stonehill College (2006). Special thanks to my parents, Terry and Janell Bauer, Justin
Vartanian, Darrell and Jayne Vartanian, and Kelly Wyand for their support through this
process. This article is dedicated to my first editor, my father, the late M. Scott Oickle.

971
OICKLE FINAL FOR PDF 6/30/2010 12:37:31 PM

972 NEW ENGLAND LAW REVIEW [Vol. 44:971

of relief under the Privacy Act and Bivens, this Comment argues that the
majority misconstrued precedent relating to Bivens, as well as the purpose
and extent of the Privacy Act. In refusing to afford the Wilsons any judicial
remedy for the violation of vested legal rights, the court wrongfully denied
the Wilsons the essential protection of the laws.

INTRODUCTION
In the landmark case Marbury v. Madison,1 Chief Justice John
Marshall declared: The very essence of civil liberty certainly consists in
the right of every individual to claim the protection of the laws, whenever
he receives an injury. One of the first duties of government is to afford that
protection.2 He went on to say, [t]he government of the United States has
been emphatically termed a government of laws, and not of men. It will
certainly cease to deserve this high appellation, if the laws furnish no
remedy for the violation of a vested legal right.3
Valerie Plame Wilson and her husband Joe Wilson filed a civil suit
against federal officials for alleged constitutional violations and tortious
invasion of privacy, but they were denied any remedy by the U.S. Court of
Appeals for the District of Columbia.4 The suit stemmed from a newspaper
article written by Robert Novak that destroyed Ms. Wilsons covert status
as an agent with the Central Intelligence Agency (CIA).5 Ms. Wilson
alleged that her identity was obtained by Mr. Novak through leaks from the
White House.6 She further alleged that the White House leaked this
information to several reporters as retaliation for her husband speaking out
against the George W. Bush Administration in an Op-Ed piece.7
Specifically, Mr. Wilson, a retired diplomat who had gone to Africa on a
fact-finding mission, asserted that in an attempt to sell the Iraq War to the
American people, the Bush Administration falsely claimed Saddam
Hussein had sought major quantities of uranium from Africa.8 Shortly
thereafter, Mr. Novaks article was published.9 The named officials

1.5 U.S. (1 Cranch) 137 (1803).

2.Id. at 163.
3.Id.
4.See Wilson v. Libby, 535 F.3d 697, 710-11 (D.C. Cir. 2008).
5.See Robert D. Novak, Mission to Niger, WASH. POST, July 14, 2003,
http://www.washingtonpost.com/wp-dyn/content/article/2005/10/20/AR2005102000
874.html.
6. See Amended Complaint at 2, Wilson v. Libby, 535 F.3d 697 (D.C. Cir. 2008) (No.
06-1258) [hereinafter Amended Complaint].
7. See id.
8. See Joseph C. Wilson IV, Op-Ed., What I Didnt Find in Africa, N.Y. TIMES, July 6,
2003, 4, at 9, available at http://www.nytimes.com/2003/07/06/opinion/06WILS.html.
9. Amended Complaint, supra note 6, at 2.
OICKLE FINAL FOR PDF 6/30/2010 12:37:31 PM

2010] WILSON V. LIBBY 973

allegedly responsible for the disclosure of Ms. Wilsons classified status

included former Vice President Richard B. Cheney, former Senior Advisor
to the President Karl C. Rove, former Assistant to the President and Chief
of Staff to the Vice President I. Lewis Scooter Libby, Jr., and former
Deputy Secretary of State Richard L. Armitage.10
In a resulting criminal case, Libby was convicted of four counts of
perjury, obstruction of justice, and making false statements, and was
acquitted of one count of making false statements.11 No one has been
formally charged with illegally leaking Ms. Wilsons identity.12
In their civil suit, the Wilsons claimed that the actions of the above-
named officials violated the U.S. Constitution and that they should be
afforded relief under Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics.13 Specifically, the Wilsons alleged that disclosure of
Ms. Wilsons identity resulted in a violation of Mr. Wilsons First
Amendment right to free speech, denied both of them equal protection of
the laws, and further violated Ms. Wilsons Fifth Amendment rights to
privacy and property.14
In Bivens, the Supreme Court held that damages may be obtained for
injuries resulting from constitutional violations by federal officials.15 In
determining whether a Bivens remedy is appropriate, the court must
conduct a two-step inquiry.16 First, it must determine whether any

10. Wilson v. Libby, 535 F.3d 697, 701 (D.C. Cir. 2008). Karl Rove, Richard Armitage,
and Scooter Libby have since been identified as the sources who provided Ms. Wilsons
identity to reporters. See Robert Novak, My Role in the Valerie Plame Leak Story, HUMAN
EVENTS, July 7, 2006, http://www.humanevents.com/article.php?id=15988; Joel Seidman,
Plame Was Covert Agent at Time of Name Leak, MSNBC, May 29, 2007, http://www.
msnbc.msn.com/id/18924679/.
11. See United States v. Libby, 498 F. Supp. 2d 1, 2 (D.D.C. 2007).
12. Seidman, supra note 10. Following a request from the Citizens for Responsibility
and Ethics, a federal judge recently ordered the release of Vice President Cheneys
interview regarding the leak. Associated Press, Judge Orders FBI to Release Cheney
Interview in Leak Case, FOX NEWS, Oct. 1, 2009, http://www.foxnews.com/
politics/2009/10/01/judge-orders-fbi-release-cheney-interview-leak-case/?test=latestnews.
Cheney was unable to recall any key information, including whether he discussed Ms.
Wilson with Libby prior to Novaks article, despite evidence at Libbys trial that indicated
that Cheney had discussed Ms. Wilson with Libby one month prior to the article. Associated
Press, Cheney Told FBI No Idea Who Leaked Plame ID, MSNBC, Oct. 30, 2009,
http://www.msnbc.msn.com/id/33556198/ns/politics-more_politics/.
13. See Wilson, 535 F.3d at 702.
14. Id. at 703.
15. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388, 397 (1971).
16. Wilson, 535 F.3d at 714 (Rogers, J., concurring and dissenting) (citing Wilkie v.
Robbins, 551 U.S. 537, 550 (2007)).
OICKLE FINAL FOR PDF 6/30/2010 12:37:31 PM

974 NEW ENGLAND LAW REVIEW [Vol. 44:971

alternative, existing process for protecting the interest amounts to a

convincing reason for the Judicial Branch to refrain from providing a new
and freestanding remedy in damages.17 Second, the court must also
consider special factors counseling hesitation before authorizing a new
kind of federal litigation.18
A district court judge dismissed the Wilsons case for lack of
jurisdiction, and upon appeal, the U.S. Court of Appeals for the District of
Columbia upheld the dismissal.19 The court found that a comprehensive
remedial scheme existed in the Privacy Act and thus precluded relief under
Bivens.20 The court further held that the Offices of the President and Vice
President were excluded from the Act,21 and no Bivens relief could be
afforded due to various other special factors counseling hesitation.22
This Comment argues that the partially dissenting opinion correctly
found that the Wilsons constitutional claims, at least in part, should not
have been dismissed because the Privacy Act23 is an insufficient remedy
and does not provide relief for the particular harm done here. The purpose
of the Privacy Act is to protect individuals, and the disclosure of the covert
status of a CIA agent by senior federal officials certainly was not
contemplated at the time the Act was instituted.24 Moreover, the Act was
not meant to create a per se bar to relief for constitutional wrongs, which
would leave the plaintiffs with no remedy at all.25 Rather, a Bivens remedy
would provide the appropriate and necessary relief to the Wilsons.26
Part I examines the relevant law, including the Privacy Act and its
purpose, as well as Bivens and its subsequent application. Part II discusses
the courts opinion in Wilson v. Libby, its reasoning, and the dissent. Part
III.A asserts that the majority opinion in Wilson misconstrued precedent
relating to Bivens as well as the purpose and extent of the Privacy Act. The
partially dissenting opinion appropriately argued that the existence of this
statute does not entirely preclude relief in situations the statute did not
purport to address, such as this one. Finally, Part III.B rejects the courts

17. Id. (internal quotations omitted) (quoting Wilkie, 551 U.S. at 550).
18. Id. (internal quotations omitted) (quoting Wilkie, 551 U.S. at 550) (error omitted).
19. See id. at 713 (majority opinion).
20. See id. at 710.
21. Id. at 707.
22. See Wilson, 535 F.3d at 709-10, 714.
23. 5 U.S.C. 552a (2006).
24. See generally S. REP. NO. 93-1183 (1974), reprinted in 1974 U.S.C.C.A.N. 6916,
6916 (stating the purpose of the Act is to promote governmental respect for the privacy of
citizens by requiring all departments and agencies of the executive branch and their
employees to observe certain constitutional rules).
25. See generally id.
26. See Wilson, 535 F.3d at 721 (Rogers, J., concurring and dissenting).
OICKLE FINAL FOR PDF 6/30/2010 12:37:31 PM

2010] WILSON V. LIBBY 975

finding that, if heard, the case would inevitably involve delving into
national secrets and jeopardize national security for several reasons. First,
the damage has been doneMs. Wilsons covert identity was already
revealed. Second, even if these proceedings require some examination of
confidential information, there are procedural safeguards in place to ensure
the utmost care in such situations, as the courts have successfully done on
numerous occasions in the past. Thus, the conclusion of the court is pure
speculation and should not be considered a special factor counseling
against judicial relief.

I. Background of Relevant Law: Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics and the Privacy Act

A. Relief for Injuries by Federal Officials: Bivens

In Bivens, the plaintiff filed suit for damages arising out of his
arrest.27 On November 26, 1965, agents of the Federal Bureau of Narcotics
entered Mr. Bivenss home and arrested him on narcotics charges in front
of his family and children.28 In his complaint, Mr. Bivens alleged that the
agents arrested him without probable cause or an arrest warrant and used
excessive force, which resulted in his humiliation, embarrassment, and
mental suffering.29 The issue for the Supreme Court was whether the lower
courts properly dismissed the case for failing to state a cause of action.30
In finding that Mr. Bivens had a cause of action under the Fourth
Amendment, the Court stated, [t]hat damages may be obtained for injuries
consequent upon a violation of the Fourth Amendment by federal officials
should hardly seem a surprising proposition. Historically, damages have
been regarded as the ordinary remedy for an invasion of personal interests
in liberty.31 The Court concluded that where, as here, a federal statute
affords a general right to sue for the disregard of legally recognized rights,
and there are no special factors counseling hesitation, the federal courts
serve as the proper forum in which to seek relief.32

B. Interpreting Bivens: Clarifying and Applying the Rule

The Supreme Court later clarified the Bivens rule in Wilkie v.
Robbins.33 Once it has been established that a constitutionally recognized

27. See 403 U.S. 388, 389 (1971).

28. Id.
29. Id. at 389-90.
30. See id. at 390.
31. Id. at 395.
32. See id. at 396.
33. See 551 U.S. 537 (2007).
OICKLE FINAL FOR PDF 6/30/2010 12:37:31 PM

976 NEW ENGLAND LAW REVIEW [Vol. 44:971

interest has been invaded by federal officials, a court must engage in a

two-step inquiry in determining whether a Bivens remedy is proper.34 The
first question is whether a statute or remedial scheme exists that
comprehensively and effectively protects the invaded interest of the
aggrieved party.35 If the answer is yes, the court may not afford a remedy
under Bivens, and the party must seek relief through alternative means.36 If
it is difficult to determine whether the statute expected the Judiciary to
stay its Bivens hand, but equally hard to extract any clear lesson that Bivens
ought to spawn a new claim, the court has the discretion to decide which
remedy is best.37 If, on the other hand, the answer is no, the court must
consider whether there are special factors counseling hesitation, which
indicate that a judicial remedy would be inappropriate.38 Special factors
counseling against a judicially imposed remedy include whether Congress
is in a better position to provide a remedy and whether there is a lack of
judicial manageability of any proposed remedy.39
Still, even where there have been special factors counseling
hesitation, the Supreme Court has never denied a Bivens remedy where an
aggrieved party had no alternative remedy at all.40 Whenever the Court has
denied a Bivens remedy, there has been a remedial scheme that provided
relief, at least in part, for the harm caused.41
In one instance, an aerospace engineer filed suit for a Bivens remedy
against his employer, the director of a space flight center operated by the
National Aeronautics and Space Administration, for violating his First
Amendment rights allegedly through defamation and retaliatory
demotion.42 The Supreme Court held that a comprehensive remedial
scheme, the Civil Service Commission regulations, addressed this situation
specifically.43 Although this remedy did not provide complete relief to the
plaintiff, his interests were sufficiently protected to make a Bivens remedy

34. See id. at 550.

35. See id.
36. See id.
37. See id. at 554.
38. See id. at 550.
39. See Wilson v. Libby, 535 F.3d 697, 716 (D.C. Cir. 2008) (Rogers, J., concurring and
dissenting).
40. See id. at 719; see also Wilkie, 551 U.S. at 553, 567-68; Corr. Servs. Corp. v.
Malesko, 534 U.S. 61, 72 (2001); Schweiker v. Chilicky, 487 U.S. 412, 428-29 (1988);
Bush v. Lucas, 462 U.S. 367, 388-90 (1983). But see Chappell v. Wallace, 462 U.S. 296,
304 (1983) (holding that a Bivens remedy was improper in an action against military
officials despite the lack of a statutory remedy due to the unique disciplinary structure of
the Military Establishment and Congress activity in the field).
41. See cases cited supra note 40.
42. See Bush, 462 U.S. at 371-72.
43. See id. at 388-90.
OICKLE FINAL FOR PDF 6/30/2010 12:37:31 PM

2010] WILSON V. LIBBY 977

unnecessary.44 Similarly, in Schweiker v. Chilicky, parties unable to obtain

money damages against officials allegedly responsible for unconstitutional
conduct leading to the improper denial of their social security disability
benefits were still afforded proper relief under the Social Security Act.45

C. An Insufficient and Inapplicable Remedy: The Privacy Act46

The Privacy Act has been in effect since 1975 and was amended in
2004 due to its vague language and the difficulty courts had in its
application.47 The Privacy Act was enacted in the aftermath of the
Watergate scandal, when Congress was particularly concerned with
restricting federal agencies from illegal surveillance and investigation of
individuals and their private information.48 The Act purported to protect
individuals through several main policy objectives.49 First, the Act sought
to restrict the disclosure of personally identifiable records maintained by
agencies, and second, it aimed [t]o grant individuals increased rights of
access to agency records maintained on themselves.50 The Act also
established a code of fair information practices which requires agencies
to comply with statutory norms for collection, maintenance, and
dissemination of records.51
The policy objectives provide insight into the purpose and goals of
the Privacy Act, indicating that the Acts function was to balance the
governments legitimate interest in maintaining informational records with
protecting the individuals right to privacy.52 Specifically, the Privacy Act
prohibits government agencies from disclosing an individuals record
which is contained in a system of records without that individuals
consent.53 A record within the meaning of the Act is any documentary

44. See id. at 373.

45. 487 U.S. 412, 424-29 (1988).
46. 5 U.S.C. 552a (2006).
47. See UNITED STATES DEPARTMENT OF JUSTICE, OVERVIEW OF THE PRIVACY ACT OF
1974, at 1 (2004), http://www.usdoj.gov/opcl/1974privacyact.pdf [hereinafter OVERVIEW OF
THE PRIVACY ACT].
48. Id. at 4.
49. See id.
50. Id. (emphasis omitted).
51. Id. (emphasis omitted).
52. See id.
53. 5 U.S.C. 552a(b) (2006). Agency is defined as any executive department,
military department, Government corporation, Government controlled corporation, or other
establishment in the executive branch of the [Federal] Government (including the Executive
Office of the President), or any independent regulatory agency. Id. 552a(a)(1). With
respect to the meaning of Executive Office of the President within the definition of
agency, see LITIGATION UNDER THE FEDERAL OPEN GOVERNMENT LAWS 2002: COVERING
THE FREEDOM OF INFORMATION ACT, THE PRIVACY ACT, THE GOVERNMENT IN THE SUNSHINE
OICKLE FINAL FOR PDF 6/30/2010 12:37:31 PM

978 NEW ENGLAND LAW REVIEW [Vol. 44:971

record that contains information with an identifiable link to an individual.54

Generally, a system of records is a compilation of this information that
can be accessed through the identifying characteristics and is kept by an
agency.55 Therefore, it follows that only individuals with an agency record
may sue for relief under the Privacy Act.56
There are several provisions of the Privacy Act relevant to the issue
presented in Wilson v. Libby. First, the Act creates a private right of action
for civil damages [w]henever any agency . . . fails to comply with any
other provision of this section . . . in such a way as to have an adverse
effect on an individual.57 However, the Offices of the President and Vice
President are exempted from the meaning of the word agency and thus
are not within the scope of the Act.58 Therefore, although Ms. Wilsons
identity as an undercover CIA agent was revealed without her consent,
those allegedly responsible for the disclosure cannot be held accountable
through the Act, as they are members of the Offices of the White House.

II. Wilson v. Libby: No Bivens Remedy, No Privacy Act Remedy

A. The Majority Opinion: Bivens Is Not a Proper Remedy

The Wilsons alleged that the named federal officials were responsible
for leaking Ms. Wilsons covert identity as a CIA agent to several
reporters, violating their constitutional rights.59 They filed an action to
obtain relief for injuries sustained as a direct result of the officials
actions.60 The majority opinion held that the Wilsons failed to state
constitutional Bivens claims for which relief may be granted and, further,
failed to exhaust the administrative remedies available to them with respect
to their tort claim.61 The court therefore affirmed the district courts

ACT, AND THE FEDERAL ADVISORY COMMITTEE ACT 199, 310 (Harry A. Hammitt et al. eds.,
21st ed. 2002) [hereinafter LITIGATION UNDER THE FEDERAL OPEN GOVERNMENT LAWS]
(stating that the scope of the term does not include the president or his immediate staff).
54. See Jo Ann F. Wasil, Annotation, What Is Record Within Meaning of Privacy Act
of 1974 (5 USCS 552a), 121 A.L.R. FED. 465 (1994).
55. See id. 5.5 (Supp. 2009).
56. See Wilson v. Libby, 535 F.3d 697, 716 (D.C. Cir. 2008) (Rogers, J., concurring and
dissenting).
57. 5 U.S.C. 552a(g)(1)(D).
58. See Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 138
(1980) (holding that the Office of the President is not an agency); Schwarz v. U.S. Dept
of Treasury, 131 F. Supp. 2d 142 (D.D.C. 2000), affd, No. 00-5453, 2001 WL 674636, at
*1 (D.C. Cir. May 10, 2001) (holding that the Vice Presidents office is not an agency);
LITIGATION UNDER THE FEDERAL OPEN GOVERNMENT LAWS, supra note 53, at 199, 310.
59. See Wilson, 535 F.3d at 701.
60. See id.
61. Id. at 713.
OICKLE FINAL FOR PDF 6/30/2010 12:37:31 PM

2010] WILSON V. LIBBY 979

dismissal of the case.62 The court cited two reasons for dismissing the
Wilsons claims and denying a Bivens remedy.63 First, the Privacy Act
constituted a comprehensive remedial scheme, which addressed the harm
done, and second, the sensitive intelligence information involved in hearing
the case counseled against judicial relief.64
The Wilsons first argued that the Privacy Act should not be
considered a comprehensive remedial scheme because it precludes these
particular officials from incurring liability.65 The court stated that, on the
contrary, a comprehensive statute need not provide complete relief to
preclude a Bivens remedy.66 In this regard, the court noted that other
plaintiffs were denied a Bivens remedy where the comprehensive statute
did not provide complete relief.67 Next, the court reasoned that the
information the Wilsons claimed was improperly disclosed was within the
scope of the Privacy Act provisions.68 While conceding the fact that the
Offices of the President and Vice President are exempted from liability
under the Privacy Act, the court still declined to afford a Bivens remedy,
citing binding precedent.69 Further, the court noted that they were bound to
respect the decision of Congress to intentionally exclude those offices from
the Privacy Act.70
The Wilsons next argued that, where the Supreme Court denied
Bivens remedies in the past, there had been alternative remedies available
to plaintiffs, whereas they would have no remedy at all.71 The court stated
that even if there was no remedy for Mr. Wilson, Ms. Wilson could still
seek relief under the Privacy Act against Richard Armitage, a member of
the Department of State,72 and therefore she had some potential relief.73
Moreover, the court concluded that affording any remedy at all was not

62. Id.
63. See id. at 704.
64. See id.
65. See Wilson, 535 F.3d at 707.
66. Id. at 705-06.
67. See id. (citing Wilkie v. Robbins, 551 U.S. 537. 562 (2007); Schweiker v. Chilicky,
487 U.S. 412, 429 (1988); Bush v. Lucas, 462 U.S. 367, 390 (1983)).
68. Id. at 707.
69. Id. at 707-08 (citing Spagnola v. Mathis, 859 F.2d 223, 228 (D.C. Cir. 1988)).
70. Id. at 708.
71. Wilson, 535 F.3d at 709.
72. Because Armitage was not a member of the Executive Office of the President, Ms.
Wilson was not precluded from seeking a remedy under the Privacy Act, according to the
court. Id.
73. See id.
OICKLE FINAL FOR PDF 6/30/2010 12:37:31 PM

980 NEW ENGLAND LAW REVIEW [Vol. 44:971

required, citing to Wilkie v. Robbins74 and its own decision in Spagnola v.

Mathis.75
Finally, the court stated that even if it was inclined to provide a
Bivens remedy despite its above reasoning, the sensitive nature of the
classified information in the case would constitute a special factor
counseling hesitation and preclude the court from doing so.76 Hearing the
Wilsons claims on their merits would have inevitably involved delving
into national secrets, which would have impaired current intelligence
gathering and operations.77

B. The Dissent: A Bivens Remedy Is Proper and No Special Factors

Counseling Hesitation Exist
The partially dissenting opinion of Judge Rogers argued that, in
calling the Privacy Act a comprehensive remedial scheme, the majority
read into the Act a purpose the drafters never intended.78 He pointed out
that the issue was not whether any individual may obtain some relief
regarding information that is protected under the Act, but whether the
Wilsons [were] to be afforded an opportunity to obtain relief for alleged
constitutional violations against which the Act provides no protection.79
Thus, the majority misconstrued the Acts scope and purpose because it
was meant to protect individual privacy but did not provide protection for
constitutional violations, such as this.80 Further, exemption of the Offices
of the President and Vice President from the remedial scheme did not
suggest that remedies for constitutional violations available outside the
Privacy Act were precluded.81
Next, the dissent argued that the majority incorrectly interpreted and
misapplied Bivens precedent.82 Specifically, the dissent noted that the
Supreme Court had never denied a Bivens remedy where there was no
alternative remedy available.83 Contrary to what the majority concluded,
there has always been at least a partial remedy in cases where a Bivens
remedy was denied.84 For example, although a Bivens remedy was denied

74. 551 U.S. 537, 550 (2007).

75. See 859 F.2d 223, 228 (1988) (holding that the Supreme Court implied in Bush v.
Lucas that a Bivens remedy can be denied even where there is no alternate remedy at all).
76. See Wilson, 535 F.3d at 710.
77. Id.
78. See id. at 713 (Rogers, J., concurring and dissenting).
79. Id.
80. See id.
81. See id.
82. Wilson, 535 F.3d at 714 (Rogers, J., concurring and dissenting).
83. See supra note 40 and accompanying text.
84. See supra note 40 and accompanying text.
OICKLE FINAL FOR PDF 6/30/2010 12:37:31 PM

2010] WILSON V. LIBBY 981

in Wilkie, the plaintiff had some procedure to defend and make good on
his position, including the means to be heard, through an administrative,
and ultimately a judicial, process.85 Spagnola is distinguishable from this
case because there was little doubt that Congress had brought the
plaintiffs claims within the statutes ambit as it . . . technically
accommodated their constitutional challenges.86
Additionally, the Supreme Court held in Davis v. Passman that
although Congress exempted certain members of Congress from liability
under the particular acts provisions, the plaintiff could still bring her
constitutional claims.87 The D.C. Circuit Court of Appeals itself held that
where a statute provides no protection for constitutional violations and
there is nothing to suggest that Congress intended to preclude such suits, a
Bivens remedy is possible.88
Finally, the dissent noted that Ms. Wilsons undercover identity had
already been revealed; thus, there likely was no issue regarding the
difficulty of reviewing classified information in court proceedings.89
Further, even if litigation required an inquiry into sensitive information, the
courts are well-equipped for this undertaking because there are procedural
safeguards in place for just this situation, such as evidentiary rules and the
immunity defense.90 Therefore, the potential for reviewing classified
information is not a special factor that precludes litigation.91

III. Advocating a Bivens Remedy and the Lack of Special Factors

Counseling Hesitation

A. Analyzing the Constitutional Claims Under Bivens

The Wilsons should have been afforded relief under Bivens because
their claims satisfied the rules requirements. First, constitutionally
recognized interests in privacy and equal protection were invaded by
federal officials.92 Second, the Privacy Act is not a comprehensive remedial
scheme because it excluded the federal officials in this action from liability,
and there is no indication from the drafters that this was meant to preclude

85. Wilson, 535 F.3d at 715 (Rogers, J., concurring and dissenting) (alterations omitted)
(internal quotations omitted) (quoting Wilkie v. Robbins, 551 U.S. 537, 552-53 (2007)).
86. Id. (alterations omitted) (internal quotations omitted) (quoting Spagnola v. Mathis,
859 F.2d 223, 229 (D.C. Cir. 1988)).
87. See 442 U.S. 228, 247-48 (1979).
88. See Ethnic Employees of Library of Cong. v. Boorstin, 751 F.2d 1405, 1415-16
(D.C. Cir. 1985).
89. See Wilson, 535 F.3d at 713 (Rogers, J., concurring and dissenting).
90. Id.
91. See id.
92. See Amended Complaint, supra note 6, at 18-21.
OICKLE FINAL FOR PDF 6/30/2010 12:37:31 PM

982 NEW ENGLAND LAW REVIEW [Vol. 44:971

constitutional claims relating to violations of the Act from any remedies at

all.93 Finally, there were no special factors counseling hesitation against a
judicial remedy because the court could easily accommodate litigating
sensitive issues as it has done so in the past.94
The majority was correct in stating that the disclosure of information
from which the Wilsons brought these claims was all information protected
by the Privacy Act.95 However, beyond Ms. Wilsons classified position as
a CIA agent falling within the Acts protected information, the majoritys
reasoning was convoluted and misinterpreted both precedent and the
Privacy Act itself.
1. The Bivens Rule: Invasion of a Constitutionally Protected
Interest
The first question under the Bivens rule is whether a constitutionally
protected interest has been invaded.96 Ms. Wilson alleged that several
constitutionally recognized and protected interests were invaded by
government officials and that she suffered direct and proximate injuries as
a result.97 First, Ms. Wilson alleged that she suffered a violation of her Fifth
Amendment right to equal protection of the laws because revealing her
undercover status as a CIA agent was different treatment than that afforded
to others in her same position.98 Second, Ms. Wilson alleged that her Fifth
Amendment right to privacy was violated contrary to the prohibition
against government officials disclosing personal information.99 Finally, Ms.
Wilson alleged that her Fifth Amendment right to property was violated
when her identity was revealed, causing her to be unable to continue her
position as a covert agent at the CIA.100
Mr. Wilson alleged that his First Amendment right to freedom of
speech was violated when the named officials acted in retaliation to his
article criticizing the Bush Administration by revealing his wifes
identity.101 Next, Mr. Wilson contended that his Fifth Amendment right to

93. See 5 U.S.C. 552(a) (2006); OVERVIEW OF THE PRIVACY ACT, supra note 47, at 4.
See generally S. REP. NO. 93-1183 (1974), reprinted in 1974 U.S.C.C.A.N. 6916.
94. See infra Part III.A.3.
95. Wilson, 535 F.3d at 707.
96. See Wilkie v. Robbins, 551 U.S. 537, 550 (2007); Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 405 (1971) (Harlan, J., concurring).
97. See Amended Complaint, supra note 6, at 18-21.
98. See id. at 19.
99. See id. at 20.
100. See id.
101. See id. at 18-19.
OICKLE FINAL FOR PDF 6/30/2010 12:37:31 PM

2010] WILSON V. LIBBY 983

equal protection of the laws was also violated because this subjected him to
different treatment than other writers in his position.102
As support for these claims, the Wilsons stated that the injuries they
suffered included their familys subjection to heightened risks because the
nature of Ms. Wilsons position rendered them a target for those hostile
toward the United States.103 Further, Ms. Wilson was unable to continue in
her position at the CIA in the same capacity, as her employment depended
on her identity remaining classified.104 Clearly, the Wilsons alleged
constitutionally protected interests and provided support for how those
interests had been violated.105 The majority did not offer an argument to the
contrary.106 Therefore, the first aspect of the Bivens test was satisfied.

2. No Comprehensive Remedial Scheme Equals a Bivens

Remedy
The next issue under the Bivens rule is whether there is any
alternative, existing process that protects the constitutional interest and
amounts to a convincing reason for the Judicial Branch to refrain from
providing a new and freestanding remedy in damages.107 Restated, it must
be determined whether there is a comprehensive remedial scheme
providing relief for the harm done.108 A statute may be considered
insufficient when it is comprehensive for some claims but not for others,
or if a plaintiff alleges a harm that the statute does not purport to
address.109 However, if a statute omits remedies for government officials
harm, its mere existence is an unconvincing reason to deny a Bivens
remedy.110
The majority opinion argued that the Privacy Act was a complete
remedial scheme in this situation, and the fact that it did not provide
complete relief to the Wilsons was of no consequence.111 To support this
conclusion, the majority pointed to precedent showing that failing to
provide complete relief does not negate the comprehensiveness of a
remedial scheme.112 On the contrary, the exemption of the Offices of the
President and Vice President precluded the Wilsons from any relief at all.

102. See id. at 19.

103. See Amended Complaint, supra note 6, at 18.
104. See id.
105. See id. at 18-21.
106. See Wilson v. Libby, 535 F.3d 697, 704-11 (D.C. Cir. 2008).
107. See Wilkie v. Robbins, 551 U.S. 537, 550 (2007).
108. See id.
109. Wilson, 535 F.3d at 717 (Rogers, J., concurring and dissenting).
110. Id.
111. See id. at 707-08 (majority opinion).
112. See id. at 705-06.
OICKLE FINAL FOR PDF 6/30/2010 12:37:31 PM

984 NEW ENGLAND LAW REVIEW [Vol. 44:971

A close examination of the precedent reveals that the Supreme Court has
never denied a Bivens remedy where the plaintiffs would be left with no
redress for their injuries at all.113
For example, where an aerospace engineer brought suit against the
director of a space flight center operated by the National Aeronautics and
Space Administration for defamation, the Court in Bush v. Lucas denied a
Bivens remedy because the plaintiffs specific claim was covered under the
Civil Service Reform Act, which provided a partial remedy.114 The Court
further stated that this was not a situation where the wrong would be
without redress; rather, the statute was an elaborate remedial system that
has been constructed step by step, with careful attention.115 In Schweiker
v. Chilicky, the Court found that Congress had provided a remedy for the
plaintiffs particular harm in the Social Security Act.116 Although plaintiffs
who had suffered the discontinuation of their social security benefits could
not receive money damages, the Court found that a Bivens remedy was
inappropriate because the plaintiffs had already had their benefits
reinstated, and Congress had purposely omitted the potential for such
damages from the Social Security Act.117
In Correctional Services Corp. v. Malesko, the Supreme Court also
declined to extend a Bivens remedy to a corporation, a new species of
defendant, in part because the plaintiff had alternative remedies [that
were] at least as great, and in many respects greater, than anything that
could be had under Bivens.118 The plaintiff, a prisoner who had been
injured in a fall, had a remedy in tort and access to other remedial
mechanisms established by the Board of Prisoners.119 The Court
emphasized that Bivens remedies were reserved for plaintiffs with no other
remedy for constitutional violations by federal officials.120 Similarly, in
Wilkie v. Robbins, the Supreme Courts most recent denial of a Bivens
remedy, although there was no single elaborate remedial scheme, a process
was available to the plaintiff for each of his claims by which his injuries
could be adequately rectified.121 In these instances where a Bivens remedy
was denied due to the existence of an alternate remedial scheme, it was
clear that Congress considered the rights of persons situated as were the

113. See supra note 40 and accompanying text.

114. See 462 U.S. 367, 388-90 (1983).
115. See id. at 388.
116. 487 U.S. 412, 425 (1988).
117. See id. at 417-18, 423, 429.
118. See 534 U.S. 61, 72 (2001).
119. See id. at 64, 74.
120. See id. at 67-68.
121. See 551 U.S. 537, 552-55 (2007).
OICKLE FINAL FOR PDF 6/30/2010 12:37:31 PM

2010] WILSON V. LIBBY 985

plaintiffs.122 Thus, when a plaintiffs specific situation has not been

contemplated by Congress in enacting a statute, it follows that a Bivens
remedy is appropriate.
Unlike the plaintiffs in those cases, Ms. Wilson and her husband did
not even have a partial remedy.123 The majoritys contention that the
Wilsons still had a partial remedy under the Privacy Act, because Richard
Armitage was not exempt from incurring liability as an official of the
Department of State, was insufficient to deny a Bivens remedy.124 The
majority should not have relied on this fact to justify holding the Privacy
Act comprehensive enough to preclude a Bivens remedy because this
ignores the other claims and other defendants.125 Even if Ms. Wilson had a
claim against Mr. Armitage, the statute remained unable to address her
other claims and thus was not a proper bar to Bivens damages.126 Moreover,
since Mr. Wilson did not have an agency record, he did not have standing
under the Privacy Act, effectively leaving him with no remedy at all.127
The Wilsons situation is much more closely analogous to cases
where the Supreme Court has afforded a Bivens remedy.128 For example, in
Davis v. Passman, the plaintiff, a former congressional staff member who
had been fired from her position as Deputy Administrative Assistant, filed
suit against a U.S. Congressman for sexual discrimination in contravention
of the Fifth Amendment.129 The lower court held that Title VII, section 717
of the Civil Rights Act of 1964, which sought to protect federal employees
from discrimination but failed to extend protection to congressional
employees, was an explicit congressional prohibition against judicial
remedies for plaintiffs like Ms. Davis.130 The Supreme Court reversed,
stating that a judicial remedy is the proper means of redress for invasion of
personal interests, and furthermore, the exemption does not foreclose the
judicial remedies of those expressly unprotected by the statute.131 The
Court held that a Bivens remedy was proper because the plaintiff had no

122. See Wilson v. Libby, 535 F.3d 697, 719 (D.C. Cir. 2008) (Rogers, J., concurring and
dissenting) (alterations omitted) (internal quotations omitted) (quoting Schweiker v.
Chilicky, 487 U.S. 412, 425 (1988)).
123. See id. at 707-08 (majority opinion) (Thus, even if the Wilsons can prove their
allegations . . . they will not be remunerated for them.).
124. See id. at 721 (Rogers, J., concurring and dissenting).
125. See id.
126. See supra notes 108-110 and accompanying text.
127. See Wilson, 535 F.3d at 716 (Rogers, J., concurring and dissenting).
128. See generally Carlson v. Green, 446 U.S. 14 (1980); Davis v. Passman, 442 U.S.
228 (1979); Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388 (1971).
129. See Davis, 442 U.S. at 230-31.
130. See id. at 247.
131. See id. at 245-47.
OICKLE FINAL FOR PDF 6/30/2010 12:37:31 PM

986 NEW ENGLAND LAW REVIEW [Vol. 44:971

other remedy, stating, [f]or Davis, as for Bivens, it is damages or

nothing.132
In Carlson v. Green, a mother brought a suit on behalf of her son,
alleging that he suffered injuries resulting in death while in the care of
prison officials.133 The Supreme Court held that the plaintiff could obtain a
Bivens remedy for her claims under the Constitution, despite the fact that
she could bring them under the Federal Torts Claim Act (FTCA).134 The
Court again reasoned that Congress had not expressly declared that the
FTCAs applicability to a claim exclusively confined a plaintiff to a FTCA
remedy.135
Therefore, where a plaintiff was faced with either an insufficient
remedy or no remedy at all for constitutional violations by federal officials,
as the Wilsons face here, the Supreme Court has afforded a Bivens
remedy.136 That Congress contemplated the disclosure of a CIA agents
classified identity by senior government officials in the White House at the
time the Privacy Act was drafted cannot honestly be concluded.137 There is
nothing in the legislative history that remotely indicates that Congress
considered this situation in its drafting.138 Further, with respect to judicial
remedies, [s]uch silence is far from the clearly discernable will of
Congress.139 As the Supreme Court in Carlson notably stated, absent an
explicit declaration by Congress, there is no basis for determining that
individuals who had constitutionally recognized interests violated by
federal officials may not recover money damages.140
Therefore, the Privacy Act is not comprehensive and does not
preclude relief for the Wilsons because Congress did not provide for their
situation in its provisions.141 The exemption of the Offices of the Vice
President and President was not meant to preclude these particular
plaintiffs in this particular situation and all alternative remedies available to
them by law.142 The purpose of the Act was to add to individuals

132. Id. at 245 (quoting Bivens, 403 U.S. at 410 (Harlan, J., concurring)).
133. See Carlson, 446 U.S. at 16.
134. See id. at 20.
135. See id. at 19, 23.
136. See Wilson v. Libby, 535 F.3d 697, 714-15, 721 (D.C. Cir. 2008) (Rogers, J.,
concurring and dissenting).
137. See Wilson, 535 F.3d at 713; supra note 24 and accompanying text.
138. See Wilson, 535 F.3d at 718; OVERVIEW OF THE PRIVACY ACT, supra note 47, at 4;
see generally S. REP. NO. 93-1183 (1974), reprinted in 1974 U.S.C.C.A.N. 6916.
139. Davis v. Passman, 442 U.S. 228, 247 (1979) (internal quotations omitted) (quoting
Davis v. Passman, 571 F.2d 793, 800 (5th Cir. 1978)).
140. See Carlson, 446 U.S. at 19.
141. See 5 U.S.C. 552a (2006).
142. See Wilson, 535 F.2d at 718 (Rogers, J., concurring and dissenting).
OICKLE FINAL FOR PDF 6/30/2010 12:37:31 PM

2010] WILSON V. LIBBY 987

protection, not to subtract from it.143 The Act was simply not meant to
create a per se bar to relief for constitutional wrongs by federal officials,
leaving the Wilsons with no remedy at all.144 This is expressed in the
legislative history of the Privacy Act, which explicitly states the Act
should not be construed as a final statement by Congress on the right of
privacy and other related rights as they may be developed or interpreted by
the courts.145 In light of this, there was no basis for denying the Wilsons a
remedy on account of the Privacy Act.

3. Policy Reasons the Wilsons Should Be Afforded a Bivens

Remedy
The Wilsons should not have been denied a Bivens remedy for the
additional policy reason that the government officials who illegally
disclosed classified information should be held accountable. Since several
reporters have actually confirmed Scooter Libby, Richard Armitage, and
Karl Rove as their sources, there is little doubt of their role.146 Thus far,
only Scooter Libby has faced criminal charges, which did not even extend
to the illegal leaking; the other culpable officials will likely be let off
without any consequences.147 This sends the message that their actions
were acceptable and disclosing national security secrets will be met with
impunity. As the Court in Davis noted, [o]ur system of jurisprudence rests
on the assumption that all individuals, whatever their position in
government, are subject to federal law: No man in this country is so high
that he is above the law. No officer of the law may set that law at defiance
with impunity.148 This language from the Davis Court and the reasoning
from the Carlson Court demonstrate that accountability is a consideration
in determining whether a Bivens remedy should be afforded.149 For
example, deterrence was one of the main reasons the Supreme Court in
Carlson decided to award the plaintiff Bivens damages, despite that she
could have also brought her claims under the FTCA.150 The Court stated
that holding the responsible officials individually accountable under Bivens
would show that such actions do not go unpunished and would also serve to
deter other officials from mistreating prisoners.151 Similarly, holding the

143. See id.

144. See id. at 718-19.
145. S. REP. NO. 93-1183, at 15 (1974), reprinted in 1974 U.S.C.C.A.N. 6916, 6930.
146. See Novak, supra note 10; Seidman, supra note 10.
147. See supra notes 11-12 and accompanying text; see generally United States v. Libby,
498 F. Supp. 2d 1 (D.D.C. 2007).
148. Davis v. Passman, 442 U.S. 228, 246 (1979) (internal quotations omitted).
149. See Carlson v. Green, 446 U.S. 14, 20-21 (1980); Davis, 442 U.S. at 246.
150. See Carlson, 446 U.S. at 20-21.
151. See id.
OICKLE FINAL FOR PDF 6/30/2010 12:37:31 PM

988 NEW ENGLAND LAW REVIEW [Vol. 44:971

federal officials responsible for leaking Ms. Wilsons identity would send
the message that they are not above the law and that such dangerous and
illegal actions are not condoned.

B. The Second Prong: No Special Factors Counseling Hesitation

Against Judicial Relief Exist
There are two potential issues that arise in determining whether there
are any special factors counseling hesitation: the Totten152 doctrine and the
Intelligence Identities Protection Act (IIPA).153 The majority in Wilson
acknowledged that neither of these issues precluded litigation of this
case.154 While the IIPA provides for criminal prosecution for intentional
disclosure of a classified agents identity, it does not provide for civil
damages in the event that its provisions are violated.155 Where a statute
does not provide for both criminal and civil remedies, the Supreme Court
has allowed a supplemental Bivens remedy.156 Therefore, a Bivens remedy
for the Wilsons would properly supplement the IIPAs remedial scheme, as
the Supreme Court similarly permitted in Carlson.157
The Totten doctrine bars litigation involving the employment of a
covert CIA agent.158 Because Ms. Wilsons status as an agent was no
longer secret, the Totten doctrine did not apply, and litigation could have
proceeded.159 Despite the absence of any established barriers to litigating
the Wilsons claims, the majority, in an inventive analysis, nevertheless
held that the sensitive intelligence information involved barred a judicial
remedy.160 Without citing any basis for its conclusion, the majority
reasoned that claims such as the Wilsons will undoubtedly involve
classified information relating to national security and intelligence.161 On
the contrary, since Ms. Wilsons identity was already compromised, the
only inquiry was into who was responsible. An investigation into the roles

152. The Totten doctrine precludes litigation involving a currently covert CIA agent. See
Totten v. United States, 92 U.S. 105, 107 (1875).
153. The IIPA makes it illegal for anyone to disclose a covert agents identity. 50 U.S.C.
421 (2006).
154. Wilson v. Libby, 535 F.3d 697, 710 (D.C. Cir. 2008).
155. Id. at 720 (Rogers, J., concurring and dissenting); see 50 U.S.C. 421 (2006).
156. See, e.g., Carlson, 446 U.S. at 20 (holding that the plaintiff could obtain a Bivens
remedy for her claims under the Constitution, despite the fact that she could also bring them
under the Federal Torts Claim Act (FTCA), because punitive damages were unavailable
under the FTCA).
157. Cf. id.
158. See Totten v. United States, 92 U.S. 105, 107 (1875).
159. See Wilson, 535 F.3d at 720 (Rogers, J., concurring and dissenting).
160. See id. at 710 (majority opinion).
161. See id.
OICKLE FINAL FOR PDF 6/30/2010 12:37:31 PM

2010] WILSON V. LIBBY 989

of the named officials in revealing Ms. Wilsons identity would likely only
involve already revealed information.162 Further, even if the court must
review classified information, there are procedural safeguards in place that
address the informations sensitive nature.163
Courts have litigated sensitive intelligence in the past and are quite
able to do so without compromising national security.164 Procedural devices
that help to resolve any potential problems include in camera judicial
review, appointing a master who has been granted security clearance to
determine which classified documents can be produced for discovery, and
statements admitting the relevant facts that the classified documents would
tend to prove.165 However, since the Wilsons had not indicated how and
through what evidence they intended to prove their case, the majoritys
dismissal of the case based on speculation that litigation might have
required some review of classified information was both conclusory and
premature.166
CONCLUSION
In conclusion, the D.C. Circuit Court of Appeals should not have
dismissed the Wilsons constitutional claims because the Bivens
requirements were satisfied. The first prong was satisfied when the
Wilsons constitutionally recognized interests were invaded by federal
officials.167 The facts the Wilsons alleged surrounding the disclosure of Ms.
Wilsons identity certainly provide sufficient ground for claims of First and
Fifth Amendment violations.168
The second factor of the Bivens rule is similarly satisfied because
there is no comprehensive remedial scheme that provides sufficient or
effective relief. The Privacy Act, which the majority claims precludes
relief, is entirely inadequate and does not provide for the particular harm at
issue in this case. There is no indication in the Act itself or its legislative
history that Congress intended the Act to act as a per se bar to outside
remedies for constitutional claims.
Finally, there are no special factors counseling hesitation against a
judicial remedy. There are no established barriers that preclude relief based

162. See id. at 721 (Rogers, J., concurring and dissenting).

163. See id.
164. See id. at 720-21; see, e.g., Boumediene v. Bush, 128 S. Ct. 2229, 2276 (2008);
Webster v. Doe, 486 U.S. 592, 604 (1988); In re Sealed Case, 494 F.3d 139, 149-150 (D.C.
Cir. 2007).
165. JANINE M. BROOKNER, PIERCING THE VEIL OF SECRECY: LITIGATION AGAINST U.S.
INTELLIGENCE 145 (2003).
166. See Wilson, 535 F.3d at 721 (Rogers, J., concurring and dissenting).
167. See Amended Complaint, supra note 6, at 18-21.
168. See id.
OICKLE FINAL FOR PDF 6/30/2010 12:37:31 PM

990 NEW ENGLAND LAW REVIEW [Vol. 44:971

on concerns regarding disclosure of sensitive intelligence information.

Mere conclusory speculation that litigation of the Wilsons claims could
involve review of classified information is inadequate to deny an aggrieved
party relief. In the absence of any other available relief, it follows logically
and necessarily from precedent that the Wilsons should have been afforded
a Bivens remedy. When the Wilsons were refused any judicial remedy for
the violation of their vested legal rights, they were wrongfully denied the
essential protection of the laws. At that moment, at least for the Wilsons,
the government of the United States became a government of men, and not
of laws.