Wilson v. Libby - Opposition

No. 08-1043

In the Supreme Court of the United States

VALERIE PLAME WILSON, ET AL., PETITIONERS

v.

I. LEWIS LIBBY, JR., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELENA KAGAN
Solicitor General
Counsel of Record
TONY WEST
Assistant Attorney General
MARK B. STERN
CHARLES W. SCARBOROUGH
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether the Privacy Act's comprehensive statutory scheme governing disclosures of personal information, and the likelihood of judicial intrusion into sensitive intelligence and national security matters, constitute special factors that preclude creation of a cause of action for damages under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), for the alleged disclosure of petitioner's identity as an undercover Central Intelligence Agency operative.

In the Supreme Court of the United States

No. 08-1043

VALERIE PLAME WILSON, ET AL., PETITIONERS

v.

I. LEWIS LIBBY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-50a) is reported at 535 F.3d 697. The opinion of the district court (Pet. App. 55a-105a) is reported at 498 F. Supp. 2d 74.

JURISDICTION

The judgment of the court of appeals was entered on August 12, 2008. A petition for rehearing was denied on November 17, 2008 (Pet. App. 108a-111a). The petition for a writ of certiorari was filed on February 17, 2009 (Tuesday following a holiday). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Petitioners, Valerie Plame Wilson and her husband Joseph Wilson, allege that federal officials violated their constitutional rights by causing Ms. Wilson's status as an undercover Central Intelligence Agency (CIA) agent to be publicly disclosed. Petitioners filed suit against the individual respondents-former Vice President Richard Cheney, former White House senior advisor Karl Rove, former Chief of Staff to the Vice President I. Lewis Libby, and former Deputy Secretary of State Richard Armitage-in their personal capacities, assert ing constitutional claims under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). The court of appeals affirmed the dis trict court's dismissal of those claims, holding, inter alia, that Congress's enactment of a comprehensive statutory scheme in the Privacy Act, 5 U.S.C. 552a, to address unlawful disclosures of personal information by government officials precludes judicial creation of a cause of action for damages under Bivens for the same conduct. Pet. App. 10a-21a.

1. Congress enacted the Privacy Act based on its understanding that the "right to privacy is a personal and fundamental right protected by the Constitution" and that regulating the federal government's "collection, maintenance, use, and dissemination of information" regarding individuals was necessary and proper "to pro tect the privacy of [such] individuals." Privacy Act of 1974 (the Act), Pub. L. No. 93-579, § 2(a)(4) and (5), 88 Stat. 1896. The Act accordingly sets forth "detailed instructions" governing the government's "collection, maintenance, use, and dissemination of information" about individuals in agency records. Doe v. Chao, 540 U.S. 614, 618 (2004); see 5 U.S.C. 552a(a)(3).

The Privacy Act, inter alia, regulates and limits the information that agencies may maintain on individuals in systems of records, including a general prohibition against maintaining, collecting, using, or disseminating records describing how individuals exercise their First Amendment rights. 5 U.S.C. 552a(a)(3), (e) and (e)(7). It further provides that agencies must normally give individuals access to records pertaining to them, and directs agencies to promulgate rules allowing individuals to obtain access to and request amendment of such re cords. 5 U.S.C. 552a(d) and (f). Subject to statutory exceptions, the Privacy Act also specifies that:

No agency shall disclose any record which is con tained in a system of records by any means of com munication to any person, or to another agency, ex cept pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains.

5 U.S.C. 552a(b); cf. 5 U.S.C. 552a(j) and (k) (exemp tions).

Congress has enacted a carefully calibrated set of judicial remedies for violations of the Privacy Act and its implementing regulations. See 5 U.S.C. 552a(g). In crafting those remedies, Congress considered imposing monetary liability on "any person found to have violated * * * the Act." S. Rep. No. 1183, 93d Cong., 2d Sess. 83 (1974) (discussing Section 303(c) of S. 3418 as re ported by committee). It ultimately determined, how ever, that imposing such liability on "an individual em ployee of a Federal agency" would be inappropriate and that "civil liabilities should run only against the agency itself." 120 Cong. Rec. 36,891 (1974) (explaining amend ments to S. 3418). Congress accordingly eliminated per sonal liability from the Privacy Act, see id. at 36,921, 37,085; see also id. at 40,406, and enacted a detailed re medial provision that authorizes damages actions only against federal agencies. 5 U.S.C. 552a(g).1

The Privacy Act authorizes an individual adversely affected by a violation of the Act's anti-disclosure provi sion, for instance, to bring a civil action against the re sponsible agency. 5 U.S.C. 552a(g)(1)(D). If the agency is found to have acted intentionally or willfully in violat ing that provision and the plaintiff has sustained actual damages as a result of the violation, the United States will be liable to that individual for his or her actual dam ages (subject to a $1000 minimum award) and reason able attorneys' fees and costs. 5 U.S.C. 552a(g)(4); see Doe, 540 U.S. at 616, 625 n.9.

2. Petitioners' complaint alleges that the disclosure of Ms. Wilson's status as a CIA employee has its origin in the 2003 State of the Union address in which Presi dent George W. Bush stated that "[t]he British govern ment has learned that Saddam Hussein recently sought significant quantities of uranium from Africa." Pet. App. 3a.2 The New York Times subsequently published a column by Nicholas Kristof questioning the accuracy of that statement. Kristof reported that, following a request from the Vice President's office for an investiga tion of an allegation that Iraq sought to buy uranium from an African country, an unnamed former ambassa dor (now known to be Mr. Wilson) was sent to Niger in 2002 to investigate. Kristof claimed that the ambassa dor reported to the CIA and the Department of State that the allegations were wrong and based upon forged documents. Ibid.; C.A. App. 20-21.

After several more newspaper articles raised ques tions about alleged Iraqi efforts to buy uranium and re ferred to Wilson's trip to Niger, Wilson became person ally involved in the controversy. He authored a New York Times article entitled "What I Didn't Find in Af rica"; gave an interview to the Washington Post, which published an article about his trip to Niger; and ap peared on Meet the Press to discuss the controversy. Pet. App. 4a-5a. He asserted in various public state ments that he had taken the trip to Niger at the request of the CIA in February 2002 to investigate the allega tions that Iraq had sought or obtained uranium. C.A. App. 24. He also expressed doubts about the claim that Iraq had obtained uranium from Niger and stated his belief that the Vice President's office was advised of the results of his trip. Ibid.; Pet. App. 5a.

Petitioners allege, "[u]pon information and belief," that former Vice President Cheney, Libby, and Rove agreed to "discredit, punish and seek revenge" against Mr. Wilson by taking actions that included the disclo sure of his wife's classified CIA employment to the press. C.A. App. 28. Libby allegedly discussed Ms. Wil son's CIA employment with reporter Judith Miller and allegedly revealed Ms. Wilson's identity to reporter Matthew Cooper. Id. at 23-27. Rove also allegedly spoke with Cooper, informing him that Ms. Wilson worked for "the agency" and was responsible for send ing Mr. Wilson to Niger. Id. at 29; Pet. App. 5a.

But neither Miller nor Cooper was the alleged source of the initial public disclosure of Ms. Wilson's CIA em ployment. That disclosure purportedly came from col umnist Robert Novak in a syndicated column on July 14, 2003, based on information that Novak obtained from respondent Armitage. C.A. App. 19, 31. Petitioners contend that Novak's column "destroyed [Ms. Wilson's] cover as a classified CIA employee." Id. at 19; Pet. App. 5a.

3. Petitioners' amended complaint (C.A. App. 15-37) asserts five causes of action seeking money damages for injuries allegedly sustained as a result of the public dis closure of Ms. Wilson's employment as a CIA operative. Three of those claims remain in dispute. First, Mr. Wil son alleges that Libby, Rove, and Cheney (but not Armitage) violated his First Amendment rights by dis closing his wife's employment status in retaliation for his protected speech (Count 1). C.A. App. 32-33; Pet. 2. Petitioners further allege that all four individual defen dants violated the Fifth Amendment by disclosing Ms. Wilson's covert CIA employment, thereby violating peti tioners' constitutional right to privacy (Count 3) and depriving Ms. Wilson of a property interest in her CIA employment without due process of law (Count 4). C.A. App. 34-35; Pet. 3.3

The district court dismissed petitioners' claims. Pet. App. 55a-105a. As is relevant here, the court held that "special factors" counsel against creating a new dam ages cause of action against individual government offi cials under Bivens for improper disclosures of personal information. The court found that fashioning a new Bivens action would be inappropriate because Congress enacted the Privacy Act as a comprehensive scheme to address such disclosures and because creating a Bivens action in this context would likely require inappropriate judicial intrusion into matters of national security and intelligence activities and operations. Id. at 68a-87a, 90a-97a. In light of that disposition, the court concluded that it need not determine whether Mr. Wilson had Arti cle III standing to assert his First Amendment retalia tion claim. Id. at 69a n.2.

4. A divided panel of the court of appeals affirmed. Pet. App. 1a-50a. The court explained that, under this Court's precedents, "[o]ne 'special factor' that precludes creation of a Bivens remedy is the existence of a com prehensive remedial scheme," which "need not provide full relief to the plaintiff." Id. at 11a-13a (discussing Bush v. Lucas, 462 U.S. 367 (1983); Schweiker v. Chil icky, 487 U.S. 412 (1988); and Wilkie v. Robbins, 127 S. Ct. 2588 (2007)). Because "Congress created a compre hensive Privacy Act scheme that did not inadvertently exclude a remedy for the claims brought against the[] defendants," the court reasoned, it would be inappropri ate under the decisions of this Court to "supplement the scheme with Bivens remedies." Id. at 21a; see id. at 10a-21a.

In addressing petitioners' assertion that the reme dies provided to them by the Privacy Act were insuffi cient to preclude a Bivens action, the court rejected the claim that the Act provided them with no possibility for relief. The court noted petitioners' own concession that "Valerie Wilson has a possible [Privacy Act] claim based on the disclosure by [respondent] Armitage because the information disclosed about her and the agency involved in the disclosure are subject to the Privacy Act's restric tions." Pet. App. 20a. The court also reasoned that all of petitioners' constitutional claims are premised "on the publication of Valerie Plame Wilson's CIA employment in the Novak column," which resulted from "a disclosure by Deputy Secretary of State Armitage of information about an individual contained in State Department re cords." Id. at 15a-16a. As a result, "each Constitutional claim, whether pled in terms of privacy, due process, or the First Amendment, is a claim alleging damages from the improper disclosure of information covered by the Privacy Act." Id. at 16a.

The court then rejected petitioners' argument that a Bivens remedy was necessary because the Privacy Act did not allow petitioners to bring all their claims. The court reasoned that "the availability of Bivens remedies does not turn on the completeness of the available statu tory relief"-or, stated otherwise, that "[t]he special factors analysis does not turn on whether the statute provides a remedy to the particular plaintiff for the par ticular claim he or she wishes to pursue." Pet. App. 13a, 20a-21a (discussing Bush, Chilicky, Wilkie). While an "equally effective statutory remedy is a sufficient * * * reason for [courts] to abstain from creating Biv ens remedies," id. at 18a-19a, the court explained that deference is also owed "to the considered judgment of Congress that certain remedies are not warranted." Id. at 21a. "Indeed, it is where Congress has intentionally withheld a remedy" in enacting a comprehensive statu tory scheme, the court continued, "that we must most refrain from providing one." Ibid. The court thus con cluded that, while petitioners did not have a Privacy Act claim for disclosures by respondents Cheney, Rove, and Libby because the Act "exempts the Offices of the Presi dent and Vice President from its coverage," it would be inappropriate to provide petitioners with these "addi tional remedies" under Bivens because Congress itself had "intentional[ly] omi[tted] * * * the Presidential and Vice Presidential offices from the comprehensive coverage of the Privacy Act." Id. at 16a-18a.

The court of appeals further concluded that "special factors" precluded fashioning a Bivens cause of action in this context because a Bivens action "would inevitably require judicial intrusion into matters of national secu rity and sensitive intelligence information" to litigate "the allegations in the amended complaint." Pet. App. 21a-22a. In light of petitioners' allegations that the dis closure of Ms. Wilson's identity impaired her ability to carry out her duties as a CIA agent and increased the risk of violence to her and her family, the court con cluded that "[w]e certainly must hesitate before we al low a judicial inquiry into these allegations that impli cate the job risks and responsibilities of covert CIA agents." Id. at 23a.

Judge Rogers dissented. Pet. App. 29a-50a. In her view, the Privacy Act was not a "special factor" preclud ing implication of Bivens remedies in this case because the statute provided only limited relief for Ms. Wilson and no relief at all for Mr. Wilson. Id. at 35a-38a, 48a- 49a. Judge Rogers found no clear evidence "indicating that Congress considered and decided to deny a Bivens remedy in the context at issue." Id. at 40a.

ARGUMENT

The decision of the court of appeals is correct and does not conflict with any decision of this Court or any other court of appeals. Further review is unwarranted.

1. Petitioners contend that this Court's review is necessary to resolve whether the existence of "a statute that does not apply and can provide no remedy" can be a special factor counseling hesitation in implying a cause of action under Bivens. Pet. 16. Petitioner's argument rests on an incorrect premise and is flawed on its merits.

a. It is well settled that litigants have no "automatic entitlement" to a judicially devised cause of action for money damages under Bivens. Wilkie v. Robbins, 127 S. Ct. 2588, 2597 (2007). The creation of such a cause of action must "represent a judgment about the best way to implement a constitutional guarantee," and, after de ciding Bivens in 1971, this Court has made this judg ment in only limited situations. Ibid. "[I]n most in stances," the Court has "found a Bivens remedy unjusti fied," ibid., and the Court's decisions "have responded cautiously to suggestions that Bivens remedies be ex tended into new contexts." Schweiker v. Chilicky, 487 U.S. 412, 421 (1988); see Ashcroft v. Iqbal, No. 07-1015 (May 18, 2009), slip op. 11; cf. Wilkie, 127 S. Ct. at 2608 (Thomas, J., concurring) (concluding that Bivens and its progeny should not be extended to any new contexts); Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 75 (2001) (Scalia, J., concurring) (same).

These decisions make clear that a judicially created cause of action under Bivens is inappropriate in two cir cumstances. First, if Congress provides an alternative remedy and indicates its intent (either by statutory lan guage, legislative history, or "the statutory remedy it self") that a judicially fashioned cause of action is unde sirable or unnecessary, then creating a new Bivens ac tion is unwarranted. Bush v. Lucas, 462 U.S. 367, 378 (1983). Federal courts will thus follow Congress's lead where Congress has "resolved the question * * * by expressly denying [a litigant] the judicial remedy he seeks or by providing him with an equally effective sub stitute." Ibid.; see id. at 377-378 (citing Carlson v. Green, 446 U.S. 14, 18-19 (1980)).

Second, if "such a congressional directive" is lacking, courts must make "the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed * * * to any special factors counseling hesitation" before creating a new Bivens cause of action. Bush, 462 U.S. at 378; accord Wilkie, 127 S. Ct. at 2598. Analysis of these "special factors" may include an evalu ation of which Branch "is in a better position to decide" whether the "public interest would be served by creat ing" a cause of action, Bush, 462 U.S. at 388-390, and consideration of "the difficulty of defining limits" that would permit government officials to pursue their duties without "invit[ing] an onslaught of Bivens actions." Wilkie, 127 S. Ct. at 2600, 2604-2605.

The court of appeals in this case correctly concluded that the Privacy Act's comprehensive regulation of gov ernmental disclosures of personal information is a spe cial factor that makes judicial creation of a Bivens cause of action inappropriate. Where Congress has enacted a comprehensive statutory scheme like the Privacy Act, "[t]he question is not what remedy the court should pro vide for a wrong that would otherwise go unaddressed"; it "is whether an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations, should be augmented by the creation of a new judicial remedy for the constitu tional violation." Bush, 462 U.S. at 388; see Chilicky, 487 U.S. at 425-427. If the statutory scheme "suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations," such "indications that congressional inaction has not been inadvertent" deserve "judicial deference." Id. at 423.

As the court of appeals explained, the Privacy Act established a comprehensive statutory scheme to regu late the collection, maintenance, use, and dissemination of information about individuals in agency records. Pet. App. 15a. The Congress that enacted the Privacy Act was well aware of the constitutional privacy and First Amendment implications of collecting and disclosing such information in agency records, and it adopted de tailed remedial provisions that authorize monetary relief in suits against agencies while rejecting the alternative of civil actions against individual federal officials. See pp. 2-4, supra. Moreover, the court of appeals correctly recognized that petitioners' claims "are all claims alleg ing harm from the improper disclosure of information subject to the Privacy Act's protections," and, for that reason, petitioners have a potential remedy under the Act because they allege that Armitage disclosed to Novak information from agency records. Pet. App. 15a- 16a, 20a (emphasis added). Congress's decision to au thorize damages actions only against federal agencies for unlawful disclosures of Privacy Act information bal ances numerous factors, including the need for a civil remedy and the in terrorem effect of civil suits against individual government officials. And, because "Con gress is in a far better position than a court to evaluate the impact of a new species of litigation [against] federal employees" and possesses "institutional competence in crafting appropriate relief," judicial deference is due to the balance that Congress has struck. Malesko, 534 U.S. at 68 (quoting Bush, 462 U.S. at 389); see Wilkie, 127 S. Ct. at 2605 (same).

b. Petitioners do not appear to dispute that the Pri vacy Act would preclude a new Bivens cause of action in circumstances in which the Act provides a plaintiff with some possibility of relief. They instead argue (Pet. 16- 18, 21) that the Act should not preclude a Bivens action here because the Act provides petitioners "no remedies at all." That argument suffers from multiple defects.

First, as the court of appeals explained, petitioners' underlying premise is incorrect. Petitioners themselves concede that Ms. Wilson has a possible damages claim under the Privacy Act. Pet. App. 20a; cf. C.A. App. 31 (alleging that Armitage acknowledged learning of Ms. Wilson's CIA employment from a State Department memorandum, which Armitage subsequently disclosed to Novak).

Moreover, petitioners' argument suffers from what the court of appeals terms a more "significant flaw" (Pet. App. 20a)-namely, the assumption that a statu tory scheme must provide each potential plaintiff with relief in order to preclude judicial fashioning of a new Bivens action. This Court repeatedly has explained that a comprehensive remedial scheme will preclude the cre ation of a new Bivens action even if the scheme does not offer "complete relief" and fails to offer a remedy in all circumstances. See Chilicky, 487 U.S. at 423, 425 (not ing that, in Bush, the Civil Service Reform Act (CSRA) provided "no remedy whatsoever" in certain contexts); id. at 424-425 (finding Bivens action precluded when statute made "no provision for remedies in money dam ages against officials" and provided no remedy for con sequential damages from wrongful action); Bush, 462 U.S. at 372 & nn.8-9, 385 n.28, 388 (CSRA does not pro vide remedy for all personnel actions and provided only limited relief for covered actions); cf. Wilkie, 127 S. Ct. at 2600-2604 (finding Bivens action inappropriate even without comprehensive remedial scheme where most of petitioners' complaints could be raised on an "incident- by-incident" basis under a legal "patchwork" that was "inadequa[te]" to remedy the alleged course of conduct). Under these precedents, not every form of relief need be given to preclude a Bivens action. And if a statute does not provide a specific form of relief in a specific context, it will necessarily provide no relief to those plaintiffs who seek only the unavailable remedy.

Further, Congress need not provide a "separate[] remed[y]" for "statutory violations caused by unconsti tutional conduct" beyond "the remedies provided gener ally for such statutory violations." Chilicky, 487 U.S. at 427-428. So long as the design of a statutory regime "suggests," as here, that "Congress has provided what it considers adequate remedial mechanisms for constitu tional violations," that indication is a special factor that precludes the "creat[ion of] additional Bivens remedies." Id. at 423; see pp. 12-13, supra.4

c. Petitioners contend (Pet. 16-17) that the court of appeals erred in refusing to augment the comprehensive system of regulation enacted by Congress with a new Bivens cause of action because the Privacy Act does not apply to the Offices of the President and Vice President. That argument is without merit.

Petitioners appear to acknowledge that Congress deliberately excluded the Offices of the President and Vice President from the Privacy Act, see Pet. 16-17, and the dissenting opinion below notes the separation of powers concerns that Congress considered in adopting that exclusion. Pet. App. 39a. Petitioners nevertheless contend (Pet. 18-19) that a new Bivens action against individual officials in those offices should be created be cause the Act's legislative history does not affirmatively reflect an intent to preclude separate damage actions for constitutional violations. While this kind of legislative history would provide an independent reason for declin ing to create a Bivens action, no such expression of in tent is needed where, as here, a comprehensive statu tory scheme itself indicates that the remedies created by Congress should be deemed exclusive, rather than sup plemented by the courts. See pp. 10-13, supra. When such a comprehensive scheme exists, the relevant ques tion becomes whether Congress "plainly expressed an intention that the courts preserve Bivens remedies." Spagnola v. Mathis, 859 F.2d 223, 228, 229 n.10 (D.C. Cir. 1988) (en banc). If Congress failed to express such an intention, as here, the courts should not create a Biv ens action.5

d. Petitioners similarly argue (Pet. 16) that a new Bivens cause of action should be created to allow Mr. Wilson to pursue a First Amendment claim based on the allegedly unlawful disclosure of his wife's CIA employ ment because the Privacy Act permits civil actions only by the person whose records have been released. That argument rests on the erroneous premise previously dis cussed-that the absence of remedies under a compre hensive scheme warrants creation of a new Bivens cause of action. Just as Congress's decision to exclude the Offices of the President and Vice President from the scope of the Privacy Act must be given effect, so too courts owe deference to Congress's decision not to allow third parties to sue under the Privacy Act based on al legedly unlawful disclosures of other people's records. "'Congress is in a far better position than a court to evaluate the impact of [such] a new species of litigation' against those who act on the public's behalf." Wilkie, 127 S. Ct. at 2605 (quoting Bush, 462 U.S. at 389). That conclusion carries particular force here, where recogniz ing Bivens claims against officials for derivative harms flowing from the disclosure of information concerning a close relative would significantly undermine the very limitations in the Privacy Act that apply when the most directly affected individual-the individual whose infor mation was disclosed-seeks relief.6

Moreover, this case would be a poor vehicle for the Court to address Mr. Wilson's derivative First Amend ment claim because petitioners may not have carried their burden of establishing Mr. Wilson's Article III standing to assert that claim. Cf. Pet. App. 69a n.2 (de clining to reach that question). Petitioners allege that Novak's July 14, 2003 column publicly disclosed Ms. Wil son's covert CIA employment and that that disclosure "destroyed her cover as a classified CIA employee." C.A. App. 19. Petitioners, however, allege that Novak's source was Armitage, id. at 31; Pet. 12, and do not allege that any of the three defendants against whom Mr. Wil son presses his First Amendment claim-Cheney, Rove, and Libby-caused that column to be published.7 In the absence of factual allegations that Mr. Wilson's alleged injury from the public disclosure of his wife's CIA em ployment is "fairly traceable" to alleged conduct by Cheney, Rove, or Libby, petitioners have failed to estab lish Article III jurisdiction over Mr. Wilson's First Amendment claim. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 103 (1998).

e. Petitioners are incorrect in their suggestion (Pet. 19) that serious constitutional issues arise from declin ing to create a new Bivens cause of action to supplement congressionally sanctioned remedies in a comprehensive statutory scheme. This Court long has recognized in the Bivens context that plaintiffs do "not [have] a damages remedy for every legal wrong," Nixon v. Fitzgerald, 457 U.S. 731, 754 n.37 (1982), and, more recently, has con firmed that plaintiffs do not have an "automatic entitle ment" to a judicially devised action under Bivens. Wil kie, 127 S. Ct. at 2597. Petitioners' inability to garner authority for their position suggests that no serious con stitutional questions arise from the court of appeals' decision not to fashion a Bivens cause of action here.8

2. Petitioners suggest (Pet. 19) that review is war ranted to resolve a conflict in the circuits. No conflict exists. The only two courts of appeals to have addressed whether the Privacy Act is a comprehensive scheme that precludes judicial creation of a Bivens cause of action have answered the question affirmatively. Chung v. De partment of Justice, 333 F.3d 273, 274 (D.C. Cir. 2003); Downie v. City of Middleburg Heights, 301 F.3d 688, 698 (6th Cir. 2002). Morever, petitioners fail to show "tre mendous confusion in the lower courts concerning what is a 'special factor counseling hesitation.'" Pet. 15. The cases that petitioners cite (Pet. 15, 19) do not employ different legal principles; they simply reflect the context-specific nature of the "special factors" inquiry, which turns on a careful examination of the applicable statutes and claims. See, e.g., Wilkie, 127 S. Ct. at 2599- 2601 (assessing the "patchwork" of statutory remedies available to vindicate plaintiff's claims).

For instance, Arar v. Ashcroft, 532 F.3d 157, 176-184 (2d Cir. 2008), reh'g en banc granted (argued Dec. 9, 2008), and Van Dinh v. Reno, 197 F.3d 427, 432-435 (10th Cir. 1999), concluded that a new Bivens cause of action would be inappropriate where the complained-of conduct was regulated by the Immigration and National ity Act. Those decisions do not conflict with Castaneda v. United States, 546 F.3d 682 (9th Cir. 2008).9 The Ninth Circuit in Castaneda applied this Court's earlier decision in Carlson to conclude that the availability of relief under the Federal Tort Claims Act (FTCA) did not constitute a "special factor[]" that would preclude a Bivens cause of action. Castaneda, 546 F.3d at 700-701. The court of appeals emphasized that, although this Court has "subsequently found various other remedial schemes" to preclude a Bivens cause of action, it has never "overruled Carlson's square holding" in the FTCA context. Id. at 700.10 That decision creates no tension with the holdings in Arar and Van Dinh, and none of the other decisions cited by petitioners (Pet. 19) conflicts with the decision in this case.11

3. Finally, petitioners contend (Pet. 20-21) that fur ther review is warranted because the court of appeals erred in concluding that the adjudication of their claims would require judicial intrusion into matters of national security and sensitive intelligence information. Because the court concluded that judicial fashioning of a Bivens action was inappropriate in light of the Privacy Act's comprehensive scheme for addressing injuries such as the alleged disclosure of Ms. Wilson's CIA employment, Pet. App. 21a, its identification of additional factors counseling against a Bivens action was unnecessary to the court's disposition. In any event, the court was cor rect to recognize that "the litigation of the allegations in the amended complaint would inevitably require judicial intrusion into matters of national security and sensitive intelligence information." Id. at 21a-22a. Petitioners themselves do not quarrel with the proposition that the sensitivity of issues raised by certain kinds of claims counsels against a Bivens cause of action in certain con texts. See United States v. Stanley, 483 U.S. 669, 683 (1987) ("congressionally uninvited intrusion into military affairs by the judiciary is inappropriate" and constitutes such a special factor); Benzman v. Whitman, 523 F.3d 119, 126 (2d Cir. 2008) (holding that "a suit against a federal official for decisions made as part of federal di saster response and cleanup efforts implicate[s] the sort of 'special factors' that counsel against creation of a Bivens remedy"); Sanchez-Espinoza v. Reagan, 770 F.2d 202, 209 (D.C. Cir. 1985); see also Wilkie, 127 S. Ct. at 2604 (considering various factors, including the "diffi culty of devising a workable cause of action").

Petitioners contend (Pet. 20) that "it is purely specu lative whether this case would risk disclosure of secret or sensitive information." But both the court of appeals and the district court concluded that the adjudication of petitioners' claims would require judicial inquiry into highly sensitive areas such as "the job risks and respon sibilities of covert CIA agents." Pet. App. 23a; see id. at 95a. That context-specific appraisal of the risks and potential intrusions associated with litigating petition ers' claims does not warrant further review by this Court.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN
Solicitor General
TONY WEST
Assistant Attorney General
MARK B. STERN
CHARLES W. SCARBOROUGH
Attorneys

MAY 2009

1 Although the Privacy Act does not impose civil liability on individu als, Congress did not ignore culpable federal employees. The Act spe cifies that "[a]ny officer or employee" of an agency who knowingly and willfully discloses information in violation of the Act may be held crim inally liable for a misdemeanor offense. 5 U.S.C. 552a(i)(1).

2 This brief assumes, as it must at this stage of this litigation, the truth of the allegations in petitioners' complaint.

3 Petitioners abandon (Pet. 2 & n.1) their equal-protection claim based on purportedly "differential treatment * * * motivated by vin dictiveness and an illegitimate animus," C.A. App. 33 (Count 2). They also abandon (Pet. 3 n.2) their common-law tort claim for public dis closure of private facts, C.A. App. 35-36 (Count 5). After the Attorney General substituted the United States as the only defendant for that common-law privacy claim by certifying that each individual defendant acted within the scope of his employment with respect to the alleged conduct, see 28 U.S.C. 2679(b)(1), (d)(1) and (4), the claim was dismissed for failure to exhaust administrative remedies. Pet. App. 23a-28a, 97a- 105a.

4 Petitioners' suggestion that statutory remedies must be "equally effective" to preclude a Bivens action, Pet. 17 (quoting Carlson, 446 U.S. at 19), reflects only one way in which creation of a Bivens action may be precluded. The "special factors" analysis reflected in this Court's decisions is an independent basis for denying Bivens relief. See pp. 10-11, supra.

5 Nor are petitioners correct in suggesting that the Privacy Act's legislative history reflects an expectation by Congress that courts might add to the Act's comprehensive scheme to include offices in tentionally omitted by Congress. Pet. 18-19 (quoting Pet. App. 40a- 41a). The relevant history includes no such statement. And although a committee report indicates that the Act was not intended to be the "final statement by Congress on the right to privacy and other related rights as they may be developed or interpreted by the courts," S. Rep. No. 1183, supra, at 15, that statement merely reflects Congress's rec ognition that it could later address privacy-related concerns in different contexts, including in the "private sector," id. at 40. The statement does not speak to the appropriate remedies for the kind of disclosures that Congress considered and regulated under the detailed provisions of the Privacy Act.

6 Spouses of plaintiffs raising claims like those in Bush and Chilicky, for instance, almost certainly would suffer adverse effects from re taliatory termination of a government employee for exercising First Amendment rights (Bush) and the denial of Social Security benefits without due process of law (Chilicky). This Court's cases provide no basis for reading such a loophole into the Court's Bivens jurisprudence regarding comprehensive statutory schemes.

7 Petitioners have alleged that they "believe[]" either "Karl Rove or one or more of John Does No. 1 - 10" advised Libby that "Rove or the Does" spoke with Novak about Ms. Wilson's CIA employment before Novak's column was published. C.A. App. 26; see Pet. 9. That allega tion is tantamount to alleging that Rove either did or did not tell Libby that he disclosed such information to Novak. A plaintiff can always allege, consistent with Fed. R. Civ. P. 11(b), that a defendant either did or did not cause his injury, but such creatively indeterminate pleading fails in this case to make out an allegation that Rove was a source of in formation for Novak's column.

8 Petitioners' exclusive reliance (Pet. 19) on Justice Harlan's con curring opinion in Oestereich v. Selective Service System, 393 U.S. 233 (1968), is misplaced. That opinion merely expressed doubt "whether a person may be deprived of his personal liberty without the prior oppor tunity to be heard." Id. at 243 n.6 (Harlan, J., concurring).

9 Justice Kennedy has extended the time within which to file a peti tion for a writ of certiorari in Castaneda to May 29, 2009. Henneford v. Castaneda, No. 08A877 (Apr. 10, 2009).

10 Castaneda's separate holding that 42 U.S.C. 233(a) does not "ex pressly" displace a Bivens action does reflect a circuit conflict with re spect to the effect of Section 233(a). Compare Castaneda, 546 F.3d at 689-700, with Cuoco v. Moritsugu, 222 F.3d 99 (2d Cir. 2000). That statute-specific conflict, however, does not relate to the "special factors" analysis conducted in this case.

11 Krueger v. Lyng, 927 F.2d 1050, 1055 (8th Cir. 1991), concluded only that limited administrative remedies created by regulation did not foreclose Bivens remedies in the absence of other congressional action. Bagola v. Kindt, 131 F.3d 632, 642-645 (7th Cir. 1997), held that a work ers' compensation scheme did not foreclose Bivens remedies where that scheme provided no opportunity to expose the allegedly unconstitu tional conduct and Congress's failure to provide remedies had been "inadvertent." Neither decision reflects a division of authority relevant to this case.