There are five causes of action in the amended complaint. Four are constitutional claims alleging violations of the first and fifth amendments and one common law tort claim. If Wilson and Plame are going to get their civil damages, they have to prevail on the merits of at least one of the causes of action.

The constitutional claims are called Bivens claims after the first Supreme Court case in which a money damages remedy is provided under the Constitution alone for violations of constitutional rights.

Bivens suits have not been entertained lightly by the courts because they are a remedy fashioned solely by the courts and not legislatures. For that reason the Supreme Court has established limitations on their use. One of those limitations applies when "special factors counsel hesitation" before applying such an extra-legislative remedy.

Under the special factors analysis courts have been reluctant to allow a Bivens remedy if alternative remedial schemes exist. In its opinion, the court discusses two possible remedial schemes that apply to this case: the Privacy Act and the Intelligence Identies Protection Act. It found that Wilson and Plame could have made claims under the Privacy Act and that since Congress has established that remedial scheme for the constitutional claims at issue, the plaintiff's should have availed themselves of that remedy rather than attempting the Bivens claims.

On the other hand, the court ruled that the IIPA does not constitute an alternative remedial scheme in this case, despite the arguments of defendants, because it appears that Congress only intended the IIPA to create criminal penalties for disclosures of the kind alleged by plaintiffs. Since Congress didn't reach civil remedies with the IIPA, it doesn't constitute an alternative remedial scheme under the Bivens special factor analysis.

The court notes that even if the Privacy Act wasn't an alternative remedial scheme, other factors also consel against allowing the Bivens remedy including separation-of-powers and justiciability concerns.

The court sums this portion of the opinion:

In sum, the Court finds that the existence of special factors counsels against judicial
implication of plaintiffs' Bivens claims in this setting. Accordingly, there is no need to address
defendants' alternative arguments for dismissal of these claims, including their assertions of qualified immunity and the Vice President's claim of absolute immunity.

It is worth repeating that this is not a decision on the merits of Wilson and Plame's case.

The common law tort claim is for a cause of action called public disclosure of private facts. That would be fine if the defendants were private citizens, but the Federal Employees Liability Reform and Tort Compensation Act of 1988 provides the exclusive remedy for tort claims against Government employees acting within the scope of their duties.

There is interesting analysis of whether the defendants here were acting within the scope of their employment, but the short answer is: once the Attorney General certifies that they were acting within the scope of their activities (and he did long ago, for these defendants) the burden is on the plaintiff to show that they were not. Here, Wilson and Plame did not allege sufficient facts to show that they were acting outside the scope of their duties.

Therefore, their only remedy is to sue the U.S. under the Federal Tort Claims Act. As oculus notes, they failed to do that and that is kind of a major oopsie.

1. But she wasn't undercover!
   
2. What about Richard Armitage?
   
3. Joe Wilson is to blame!

I had been expecting FTCA claims and those require that an administrative claim be filed within 2 years to preserve the right to bring a civil action if the agency outcome is adverse. There appear to be no FTCA claims. (Although it is certainly conceivable the defendants might argue some or all claims are only cognizable under FTCA.) ...