Thursday, July 19, 2007

Who's Your Master?

It’s been a good month for Scooter Libby. First, President Bush commuted his 30-month prison sentence. And now a federal judge has dismissed Valerie Plame’s suit against Libby and other administration officials, including Dick Cheney, Karl Rove, and former Deputy Secretary of State Richard Armitage.

In a decision handed down today, Judge John Bates did not address the merits of Plame’s suit, which alleges that Libby & Co. violated her constitutional and state law rights when they outed her as a CIA operative in 2003. Instead, he dismissed the suit on jurisdictional grounds. First, he ruled that the Constitution does not authorize Plame or her husband, Joseph Wilson, to collect money for violations of their First and Fifth Amendment rights. Second, he dismissed Plame’s state law privacy claim because a federal law – the Westfall Act – requires plaintiffs who are harmed by federal employees acting in their official capacity to sue the United States, not the employees.

Bates’ ruling on the first point is unsurprising. The Constitution does not explicitly provide remedies for individuals whose rights are violated, and the Supreme Court has been very reluctant in recent years to recognize “implied” constitutional remedies. But his analysis of the Westfall Act is questionable. In order to conclude that the Act preempted Plame’s state law claim, Bates had to determine whether Libby et al. were acting within the scope of their employment when they outed Plame. Plame argued that they were not because outing undercover CIA agents is not within the job description of high-ranking executive officials. But Bates disagreed:
The alleged means by which defendants chose to rebut Mr. Wilson's comments and attack his credibility may have been highly unsavory. But there can be no serious dispute that the act of rebutting public criticism, such as that levied by Mr. Wilson against the Bush Administration's handling of prewar foreign intelligence, by speaking with members of the press is within the scope of defendants' duties as high-level Executive Branch officials.
Bates appears to think the means used by officials to carry out their duties are irrelevant to determining whether they are acting within the scope of their employment. But the distinction between means and ends is not always helpful. What if Libby had ordered a hit man to kill Wilson as a means of rebutting public criticism of the administration? Surely, we would not say he was acting within the scope of his employment simply because rebutting public criticism is one of his duties. On the other hand, I agree that an official does not act outside the scope of his duties just because he violates the law. If that were the case, the Westfall Act would provide little protection to federal employees. The key question should be whether the employee’s actions were within the range of what might reasonably be expected of someone in that position. And sadly, under that standard I think Bates is right. For a top official like Libby, leaking classified information to damage political opponents has become commonplace. Not only is it within the scope of employment; it is the scope of employment.

Bates did make one mistake. As part of the Westfall analysis, he had to determine whether the defendants were “actuated by a purpose to serve the master,” meaning their employer. Bates concluded that they were, writing that “attempts by high-ranking officials to discredit a critic of the Executive Branch’s policies satisfy the purpose requirement.” Bates is right that the defendants’ actions served the purposes of the Executive Branch. But their “master” for purposes of the Westfall Act is not George Bush. It is the United States government. And it is hard to see how outing an undercover CIA agent could be said to serve the purposes of the United States.

Who is Judge Bates, by the way? For starters, he’s a Bush appointee (which may explain why he thinks Bush is the master). He was also Deputy Independent Counsel for the Whitewater Investigation from 1995-97. And last year, he was appointed by Chief Justice Roberts to serve on the Foreign Intelligence Surveillance Court, which is now monitoring the administration’s domestic wiretapping program. Feel safer? I thought not.


Howard Wasserman said...

I have not read the opinion and I agree that the Court has been reluctant to recognize new implied remedies recently. But why isn't this a basic, core *Bivens* action--a claim for damages for violation of constitutional rights by federal officers acting under color of law? Federal officials allegedly violated constitutional rights and there is no controlling alternative congressionally created remedy (the Supreme Court held in *Davis v. Passman* that the FTCA (of which the Westfall Act is a part) does not preclude the *Bivens* remedy).

Thomas Healy said...

Good point. As your question implies, the Court has held that it will not find an implied constitutional remedy where there is an alternative remedial scheme created by Congress. In this case, Bates did not rely on the FTCA as that remedial scheme. Instead, he relied on the Privacy Act, which "regulates the collection, maintenance, use, and dissemination of information" about individuals by federal agencies.

Plame's attorneys argued that the Privacy Act was not an alternative remedy because it doesn't provide a private damages action against individual officials. But Bates said that wasn't important. What matters is that Congress made a determination about what remedies are appropriate for misuse of personal information by government agencies. "To the extent that plaintiffs lack a Privacy Act remedy here, then, it is because Congress failed to provide relief for individuals in plaintiffs' position, and has not done so inadvertently."

I have not followed the case law in this area closely enough to know whether Bates is right, though the D.C. Circuit cases he cites seem to support his conclusion. But I do think that the attitude expressed by his opinion -- a stingy reluctance to recognize implied constitutional remedies -- is consistent with the Supreme Court's attitude over the past few decades.

Michael C. Dorf said...

Thomas is right in seeing in this opinion a continuation of the Court's stinginess---although most of the cases cutting back on implied remedies involve alleged implied remedies for statutory violations, not constitutional ones. Judge Bates does, however, cite US S Ct precedent that says that the existence of a comprehensive remedial scheme established by Congress is a "special factor counseling hesitation" before granting a Bivens remedy. So this is not simply a case of a district judge ignoring Bivens. I would call into question this whole line of cases, however. Henry Hart used to argue, convincingly in my view, that there is a constitutional right to a constitutionally adequate remedy for constitutional violations. The point has to be qualified, of course, by the fact that some constitutional violations will not give rise to justiciable cases or controversies, but once one gets over that hurdle, Hart has Blackstone (for every right a remedy) and common sense on his side. If Hart is right, then it is passing strange that Congress could displace a federal common law remedy for a constitutional violation, unless the courts that fashioned the common law remedy in the first place make a determination that the substitute remedy is constitutionally adequate.

Miss Vickie said...

I knew their was more to be had than the pablum dished up by chatty pundits and nightly newsreaders, but it took some digging to find the back story. From the perspective of an interested layman, many thanks for explaining the legal process with such a clear and concise analysis of this issue.

Sobek said...

"What if Libby had ordered a hit man to kill Wilson as a means of rebutting public criticism of the administration?"

That's not a rebuttal. Arguing that Wilson's report is suspect because he was unqualified to make the analysis (as evidenced by the fact that his wife set him up for the job) is a rebuttal -- or at least part of one.

"And it is hard to see how outing an undercover CIA agent could be said to serve the purposes of the United States."

Assuming for a moment that a woman who drove to Langley every day could conceivably be viewed as "undercover," the purposes of the United States are arguably served when the executive branch undermines the credibility of a critic. So it was not the fact of "outing" Plame that served the administration's purposes, it was the fact that Plame's involvement destroyed Wilson's credibility that served the administration's purposes.

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