Pablo on July 19, 2007 at 3:22 PM

Yeah. We’ve been denied the opportunity to get her for perjury.

Esthier on July 19, 2007 at 3:24 PM

Pablo on July 19, 2007 at 3:22 PM

Me too!

When is she going to be prosecuted for testifying with contradictory accounts to congress perjury?

Harpoon on July 19, 2007 at 3:27 PM

Please tell me it was a Clinton judge.

Limerick on July 19, 2007 at 3:27 PM

Expect them to refile, and name the first judge as an additional defendant, since he was likely a repub appointment, and thus part of the conspiracy?

Canadian Imperialist Running Dog on July 19, 2007 at 3:28 PM

Ha ha!

PBoilermaker on July 19, 2007 at 3:30 PM

Hamsher wept.

Jim Treacher on July 19, 2007 at 3:32 PM

If Plame is so concerned about her “outing”, then Armitage is her patsy, oh wait he’s anti Bush never mind

MNDavenotPC on July 19, 2007 at 3:33 PM

Yawn.

Zach on July 19, 2007 at 3:33 PM

Great pic. Is that the face of someone waiting to get suggestions from colleagues walking by her office, or what?

Dusty on July 19, 2007 at 3:37 PM

Haha oh oh:

http://www.dcd.uscourts.gov/bates-bio.html

Zetterson on July 19, 2007 at 3:38 PM

She’ll make the money up on her “comomng” lying book and her husband’s new job in the “comimg” Clinton Administration.

apostle53 on July 19, 2007 at 3:45 PM

I’m getting farfegnugen from all the schadenfreude.

TheSitRep on July 19, 2007 at 3:47 PM

BWHAHAHAHAHAHA

KelliD on July 19, 2007 at 3:52 PM

Yet, we have a man convicted of a crime that wasn’t a crime, and even if it was, he didn’t commit.

If the **** doesn’t hit the fan, and blow back on these two idiots, there is no justice.

franksalterego on July 19, 2007 at 3:56 PM

Plame over, MSNBC!

Stormy70 on July 19, 2007 at 3:59 PM

When is she going to be prosecuted for …

Harpoon on July 19, 2007 at 3:27 PM

Wowsers! I read that as ‘When is she going to be prosituted….

But then I realized She and Joe already did that…..

CrazyFool on July 19, 2007 at 4:01 PM

If Plame is so concerned about her “outing”, then Armitage is her patsy, oh wait he’s anti Bush never mind

How can you tell if someone is a lefty, or even a moonbat? Write down the name “Armitage” in a piece of paper and ask him/her to read it aloud. Since the left refuses to acknowledge the existence of the name “Armitage” (instead preferring to recite “Rove”, “Cheney”, “Libby”, etc.), people on the left will have difficulty pronouncing it. The harder it is to pronounce, the farther left he/she is.

Bigfoot on July 19, 2007 at 4:02 PM

Bummer. Now maybe the lying frick and frack can find something else to do other than make false accusations against the Bush administration. This farce should have dies a long time ago.

katieanne on July 19, 2007 at 4:04 PM

Poor BEEAAACH…she can take her lying hubby and move to france…

areseaoh on July 19, 2007 at 4:09 PM

Don’t worry, that Parasite of a husband of hers will figure out a way to bring this back on on a hurry.

NEMETI IN SYRACUSE on July 19, 2007 at 4:12 PM

Agree, they are just going to shop for a judge that is syphathetic judge. Travis County, Taxas could be her next stop.

SIJ6141 on July 19, 2007 at 4:18 PM

Nice Tombstone reference, Allah.

Who was going to be in that movie, anyway?

cjn on July 19, 2007 at 4:29 PM

Crockumentarian Jim Schermbeck found his huckleberry in Travis County DA Ronnie Earle and got Tom DeLay indicted for a crime that didn’t exist

Don’t tell Patterico this. It might shock his belief that sham trials don’t happen.

Keep in mind that DeLay hasn’t been to trial. And most of the charges against him have been dismissed.

Which is not to say that sham trials don’t happen…

Pablo on July 19, 2007 at 4:33 PM

“A federal judge on Thursday dismissed former CIA operative Valerie Plame’s lawsuit against members of the Bush administration in the ALLEGED CIA leak —scandal.”

—Fixed that for them.

Poor widdle Valerie. What will she do now?

JannyMae on July 19, 2007 at 4:35 PM

I’m looking forward to the exciting climax of the movie, where no one is convicted of the crime that was alleged to occur and a walk-on actor ends up in jail for jaywalking in front of the courthouse.

marc@hubsandspokes on July 19, 2007 at 4:36 PM

Holy $hit, They have no grounds what so ever…

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2006cv1258-52

The CAIR case is illustrative. The Council on American-Islamic Relations (”CAIR”)
brought an action for defamation and slander against Congressman Cass Ballenger based on his
statement that CAIR was the fund-raising arm of a foreign terrorist organization. 444 F.3d at
662. Ballenger made the statement to a reporter during a conversation about Ballenger’s marital
difficulties. See id. The district court accepted the Attorney General’s Westfall certification and
dismissed the case. See id. at 663. On appeal, CAIR argued (like plaintiffs do here) that
Ballenger’s tortious act — the allegedly defamatory statement — was not conduct of the kind he
was authorized to perform. Id. at 664. The court of appeals explained that CAIR’s argument
ignored the possibility that the statement was made incidentally to authorized conduct and
clarified that the relevant “underlying dispute or controversy” for purposes of the scope-ofemployment
inquiry “was the phone call between Ballenger and [the reporter] discussing the
marital separation” Id. “The appropriate question, then, [was] whether that telephone
conversation — not the allegedly defamatory sentence — was the kind of conduct Ballenger was
employed to perform.” Id. The court held that it was. See id. (”Speaking to the press during
regular work hours in response to a reporter’s inquiry falls within the scope of a congressman’s
‘authorized duties.’”).
As CAIR makes clear, this Court must look beyond the alleged disclosure of Mrs.
Wilson’s covert identity and assess whether the underlying conduct was of the type defendants
were employed to perform. The proper inquiry in this Court’s view, then, is whether talking to
the press (or, in Cheney’s case, participating in an agreement to do so, see Am. Compl. ¶ 24) in
order to discredit a public critic of the Executive Branch and its policies is within the scope of
defendants’ duties as federal employees. See Am. Compl. ¶ 3. The alleged means by which
8Armitage, as Deputy Secretary of State, was accorded “all authorities and functions vested
in the Secretary of State.” Delegation of Authority 245, 66 Fed. Reg. 22,065, 22,065 (May 2,
2001).
-39-
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.8 Thus, the alleged tortious conduct, namely the disclosure
of Mrs. Wilson’s status as a covert operative, was incidental to the kind of conduct that
defendants were employed to perform.
Plaintiffs’ arguments with respect to the third element of the scope-of-employment test –
whether the conduct is actuated by a purpose to serve the master — suffer from the same flawed
focus on the tort itself rather than the underlying conduct. Plaintiffs observe, undoubtedly
correctly, that the unauthorized disclosure of classified information, and in particular of the
identity of a covert agent, can never be in the interest of the United States. But, like the inquiry
into the kind of conduct authorized, the “‘intent criterion focuses on the underlying dispute or
controversy, not on the nature of the tort, and it is broad enough to embrace any intentional tort
arising out of a dispute that was originally undertaken on the employer’s behalf.’” Stokes, 327
F.3d at 1216 (quoting Weinberg, 518 A.2d at 992). Furthermore, “even a partial desire to serve
the master is sufficient” to satisfy the requirement. CAIR, 444 F.3d at 665. Plaintiffs have
alleged that defendants’ conversations with reporters were intended, at least in part, to discredit
Mr. Wilson. Am. Compl. ¶ 2. The Court finds that attempts by high-ranking officials to discredit
a critic of the Executive Branch’s policies satisfy the Restatement’s purpose requirement.

Finally, the second element of the scope-of-employment inquiry looks to whether the
alleged conduct occurs substantially within authorized time and space limits. Plaintiffs concede
that this element is satisfied as to Armitage, who allegedly met with reporters in his State
Department office. Plaintiffs admittedly have not alleged the time and place of the other
defendants’ actions; they now argue that discovery is necessary to determine those facts. But
“[n]ot every complaint will warrant further inquiry into the scope-of-employment issue.” Stokes,
327 F.3d at 1216. In order to obtain discovery, plaintiffs must first “plead sufficient facts that, if
true, would rebut the certification.” Id. To allow discovery based on the absence of factual
allegations in plaintiffs’ complaint would turn this standard on its head.
In any event, there would seem to be little utility in applying the concept of authorized
time and space limits to high-level government officials such as the Vice President, his Chief of
Staff, and a close advisor to the President. As the United States observed in its reply brief, the
“Vice President does not turn into a private citizen on Sundays.” U.S. Reply in Support of Mot.
to Dismiss at 8-9. The amended complaint underscores this very point: it alleges, for example,
that before Libby spoke with reporters Cooper and Miller on Sunday, July 12, 2003, he had flown
that morning with Vice President Cheney and “other officials” on Air Force Two and discussed
with those officials how to respond to media inquiries. Am. Compl. ¶ 19(v). The bare assertion
that these actions took place on a Sunday — a day on which plaintiffs also allege that at least some
official government business had taken place — is not sufficient to rebut the certification that the
actions occurred within the scope of employment.
In sum, the Court finds that plaintiffs have not pled sufficient facts that, if true, would
rebut the Westfall certification filed in this action. Hence, neither further discovery nor an
Given this Court’s lack of subject-matter j 9 urisdiction over the tort claim, this opinion will
not address defendants’ alternative arguments, including their statute-of-limitations defense, as to
why the claim fails as a matter of law.
-41-
evidentiary hearing on the scope-of-employment issue is warranted, and the United States is
substituted as the sole defendant for the claim of public disclosure of private facts. Furthermore,
plaintiffs have not contested defendants’ assertions that they have not exhausted their
administrative remedies as required by the FTCA. See § 2679(d)(4); § 2675(a) (”An action shall
not be instituted upon a claim against the United States for money damages . . . unless the
claimant shall have first presented the claim to the appropriate Federal agency and his claim shall
have been finally denied by the agency in writing . . . .”). This Court therefore lacks subjectmatter
jurisdiction over plaintiffs’ tort claim for public disclosure of private facts. See Jackson v.
United States, 730 F.2d 808, 809 (D.C. Cir. 1984) (per curiam).9
CONCLUSION
For the reasons given above, plaintiffs have failed to state a claim upon which relief can
be granted with respect to their four causes of action asserted directly under the Constitution.
Furthermore, this Court lacks subject-matter jurisdiction over plaintiffs’ claim for public
disclosure of private facts. Accordingly, defendants’ motions to dismiss are granted. A separate
order accompanies this memorandum opinion.
/s/ John D. Bates
JOHN D. BATES
United States District Judge
Dated: July 19, 2007

doriangrey on July 19, 2007 at 4:53 PM

Karl on July 19, 2007 at 4:50 PM

In non-legalese, the Constitutional claims were dismissed because — even assuming that all of the allegations in the Plame complaint were true — the Plames did not state a claim for which relief could be granted.

No…In non-legalese, the Constitutional claims were dismissed because Because they do not and never did have a case.

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.

doriangrey on July 19, 2007 at 4:58 PM

Well, at least Joe got his endorsement of hillary out before he became insignificant.

swami on July 19, 2007 at 5:06 PM

Dorian, correct me if I’m wrong, but what I get out of that is that, the executive branch rebutting Joe Wilson’s lies, by speaking with the media, was not only not illegal, but their responsbility?

JannyMae on July 19, 2007 at 5:09 PM

JannyMae,

The answer to your question — broadly speaking is “yes.”

One of the many ironies in this case is that the more the Plames wanted to make this a VRWC from W on down, the less merit their legal case would have. Which may say something about whether the case was filed for proper reasons, or merely to harrass (for which sanctions may be assessed).

Karl on July 19, 2007 at 5:22 PM

On a more low brow note…I know she’s nuts, but I’d hit it with an aluminum baseball bat.

LtE126 on July 19, 2007 at 4:56 PM

Fixed.

BKennedy on July 19, 2007 at 5:37 PM

The Plame “case” is still exemplary of tactics intended to make talented Americans of the Right fear to hold public office or fear to execute their office vigorously. The Left will go on intimidating you by such means until you make them afraid to try it or incapable of trying it.

Kralizec on July 19, 2007 at 5:45 PM

Hamsher wept.

Jim Treacher on July 19, 2007 at 3:32 PM

Impossible, Jim. She doesn’t have tear ducts. Or vertebrae…

Jaibones on July 19, 2007 at 6:26 PM

MB4 on July 19, 2007 at 5:45 PM
that is Too funny well done

MNDavenotPC on July 19, 2007 at 6:45 PM

There’s a woman who leads a life of leisure.
To everyone she meets she says Hi stranger
With every move she makes, another photo he takes.
Odds are he won’t preen again until tomorrow.

Secret Agent Girl. Secret Agent Girl.
They’ve given you a husband and taken away his brain.

Beware of prisy faces that you find.
A prisy face may hide an evil mind.
Ooh be careful who you marry, or he’ll give you away.
Odds are he won’t preen again until tomorrow.

Secret Agent Girl. Secret Agent Girl.
They’ve given you a husband and taken way his brain.

MB4 on July 19, 2007 at 7:14 PM

Esthier on July 19, 2007 at 3:24 PM

Yes, every time there’s a story about either one of these people I say that. I feel like a broken record. But when?
And what would the name of that movie be? Just Desserts?

PowWow on July 19, 2007 at 9:50 PM

Why does the “reality based community” always need a movie to make things come out right? Actual, you know, reality is never good enough.

John on July 20, 2007 at 3:06 AM

I guess the dems will have to get their jammies and nite-nite bears out; again, to “debate” this event.

oldelpasoan on July 20, 2007 at 9:20 AM

Damn it, some times I’m so slow, I read the entire writ yesterday, but it took its peculating through my brain last night for something in it to come into focus. First the judge stated the legal obligation of the court with regards to the assertion made by Wilson and Plame.

1The circumstances giving rise to this action have been recounted extensively in the media,
including in press coverage of the criminal trial against defendant I. Lewis Libby, Jr. that took
place earlier this year. See United States v. Libby, No. 05-cr-394 (D.D.C.). It is therefore worth
reiterating that the facts as recounted in this opinion are drawn from the amended complaint,
which is presumed true and is liberally construed for purposes of a motion to dismiss. See, e.g.,
Leatherman v. Tarrant County Narcotics & Coordination Unit, 507 U.S. 163, 164 (1993).

Here you can see that the judge states that legally the court is required to assume that statements made by the Plaintiffs are truthful and factually accurate. However clearly based on evidence presented by the defendants he comes to a different conclusion regarding the veracity of those statements as you can see in the following statement.

The resolution of these claims therefore might
require an exploration into Mrs. Wilson’s specific duties as a covert operative. Her class-of-one
equal protection claim would necessitate an even broader investigation into CIA practices.

In other words the judge is stating unequivalently that the Plaintiffs failed to provide incontrovertible evidence that Plame was in fact a covert agent. Furthermore the judge also indicates that the Plaintiffs also failed to provide incontrovertible evidence that Plame did not send Wilson to Niger.

The judge goes on to state that a in depth investigation would be required to determine if these assertion were true, translated out of legal speak into ordinary English the judge is saying he doesn’t believe their statements. This suggests that the defendants provided sufficient documentation to cast the Plaintiffs assertions into legal doubt. Furthermore he goes even farther with this theme in the next paragraph.

Plaintiffs argue that the United States could invoke the state secrets privilege or utilize other
established methods for the protection of sensitive information. But, in this and in future cases,
“[s]uch procedures, whatever they might be, still entail considerable risk” of revealing sensitive
information.

In this paragraph the Plaintiffs assert that their alleged statements of fact cannot be investigated because of issues of national security, the judge repudiates that assertion stating not only could they but that doing so would set a undesirable precedent.

This casts the judges dismissal on jurisdictional grounds into an entirely different light. Basically what the judge is saying is, that Wilson and Plame lied to the court, but that the action of proving it would set a dangerous legal precedent which he was unwilling to allow.

doriangrey on July 20, 2007 at 10:11 AM