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.