Shaffer v. Defense Intelligence Agency , 901 F. Supp. 2d 113 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
ANTHONY SHAFFER, )
)
)
Plaintiff, )
)
v. ) Civil Action No. 10-2119 (RMC)
)
DEFENSE INTELLIGENCE AGENCY, )
et al., )
)
Defendants. )
)
MEMORANDUM OPINION
Plaintiff Anthony Shaffer is an intelligence officer who was employed with the
Defense Intelligence Agency, an operational component of the Department of Defense, from
1995-2006. After this, he joined the U.S. Army Reserve and retired as Lieutenant Colonel in
2011. Mr. Shaffer served two tours of duty in Afghanistan. Together with a ghost writer, Mr.
Shaffer authored a book entitled Operation Dark Heart: Spycraft and Special Ops on the
Frontlines of Afghanistan and the Path to Victory, which he describes as an eyewitness account
of the 2003 “tipping point” of the war in Afghanistan. He is required by several secrecy
agreements to submit all of his writings for prepublication review to ensure they do not contain
classified information. Mr. Shaffer complains that several executive agencies improperly
designated certain information in his book as classified and imposed a restraint on his First
Amendment right to publish his book. The agencies assert that Mr. Shaffer lacks standing to
bring his claim because he sold control of his book to his publisher in the United States; they
move to dismiss the Amended Complaint. The motion will be denied. Mr. Shaffer has standing
because he maintains rights to publish an unredacted version of his book and, if the redactions
are overbroad, to otherwise “publish” the non-classified information in his book.
I. FACTS
Mr. Shaffer makes the following allegations in his Amended Complaint. Mr.
Shaffer is a retired Lieutenant Colonel. He was mobilized as an Army Reserve Office from
December 2001 to June 2004, during that time he had two tours of duty in Afghanistan. He
submitted a draft manuscript of his book to the Army Reserve chain-of-command in June 2009
in compliance with his agreement to submit writings for prepublication review. He received
approval of the manuscript in January 2010. 1 Thereafter, the Defense Intelligence Agency
(“DIA”) requested a copy of the manuscript for its review, which it also sent to the Central
Intelligence Agency (“CIA”) and the National Security Agency. On July 22, 2010, DIA
informed Mr. Shaffer that the manuscript contained “classified information.” On August 6,
2010, DIA informed the Department of the Army of its conclusion and on that same date the
Army withdrew its approval of the manuscript. Am. Compl. [Dkt. 35] ¶ 25. In response to
DIA’s concerns, Mr. Shaffer’s publisher, St. Martin’s Press, submitted a copy of the finished
book to the Army and, in agreement with Mr. Shaffer, delayed publication of the book. Mr.
Shaffer met with DOD and DIA throughout August and September 2010 at which time DIA and
the Department of Defense (“DOD”) requested redactions on approximately 250 of 320 pages of
Operation Dark Heart to prevent the disclosure of classified information. DOD and St. Martin’s
also engaged in conversations regarding DOD’s concerns.
1
According to the Defendants, Mr. Shaffer did not submit his book to other components of the
DOD and, thus, his submission for classification review was improper. Reply [Dkt. 4] at 6, n.1.
Mr. Shaffer responds that submitting his book to the Army Reserve satisfied his prepublication
requirements because the Army Reserve was the entity that last issued his security clearance, and
it was the responsibility of the Army Reserve to ensure the manuscript was reviewed by all
relevant agencies. Am. Compl. ¶ 13.
2
Mr. Shaffer alleges that he fully cooperated “to negotiate away classification
concerns.” Id. ¶ 36. “As part of the negotiations [Mr.] Shaffer willingly agreed to modify or
delete certain text and to the extent agreement could not be reached, the publisher agreed to
redact the text from a revised edition.” Id. On or about September 3, without Mr. Shaffer’s
knowledge or consent, DOD provided a copy of Operation Dark Heart to St. Martin’s for
publication that omitted text it viewed as classified. St. Martin’s accepted the book and notified
Mr. Shaffer that it had been sent to the printer on September 9, 2010.
St. Martin’s printed a second edition 2 of Operation Dark Heart, in which
confidential material was redacted from the book’s text, on September 24, 2010, and a paperback
edition was published in October 2011. However, copies of the first edition, which contained the
allegedly classified information, had already been distributed for review and appeared for sale.
In the Amended Complaint, Mr. Shaffer alleges that the Defendant Agencies have
classified text that was previously approved by the Army and prevented him from publishing text
that is supported by “open source material.” Id. ¶ 66. Mr. Shaffer claims that he “would like to
arrange for publication, which is his legal right as the copyright owner of the book, of future
editions with the full text available to the public” and that Defendant Agencies’ actions have
violated his First Amendment right to publish, including obviously oral publication. Id. ¶ 77.
The Defendant Agencies claim that Mr. Shaffer only has a “general desire to publish another
edition some day” and that he lacks standing to bring his claim now because St. Martin’s Press
2
The Amended Complaint alleges that publication was delayed and then the redacted version of
the book was accepted for publication; it also notes that a first edition containing classified
information was printed and DOD paid to destroy it. See Am. Compl. ¶ 40.
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has the exclusive right to decide whether to publish future editions of Mr. Shaffer’s book
containing unredacted text. 3 Mot. to Dismiss [Dkt. 37] at 1.
II. LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 12(b)(1), a defendant may move to
dismiss a complaint, or any portion thereof, for lack of subject-matter jurisdiction. Fed. R. Civ.
P. 12(b)(1). When reviewing a motion to dismiss for lack of jurisdiction under Rule 12(b)(1), a
court must review the complaint liberally, granting the plaintiff the benefit of all inferences that
can be derived from the facts alleged. Barr v. Clinton, 370 F. 3d 1196, 1199 (D.C. Cir. 2004).
To determine whether it has jurisdiction over the claim, a court may consider
materials outside the pleadings. Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1107 (D.C. Cir.
2005). The party claiming subject matter jurisdiction bears the burden of demonstrating that
jurisdiction exists. Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008); see Kokkonen
v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994) (noting that federal courts are
courts of limited jurisdiction and “[i]t is to be presumed that a cause lies outside this limited
jurisdiction, and the burden of establishing the contrary rests upon the party asserting
jurisdiction”) (internal citations omitted).
Lack of standing is a defect in subject matter jurisdiction. See Haase v. Sessions,
835 F.2d 902, 906 (D.C. Cir. 1987). To have Article III standing, a plaintiff must establish: “(1)
[he] has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged
action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will
3
The Amended Complaint alleges machinations within DOD that might call into question the
good faith of the Defendant Agencies’ actions. None of that is relevant to the question of
standing.
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be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528
U.S. 167, 180-81 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).
“This triad of injury in fact, causation, and redressability constitutes the core of Article III’s
case-or-controversy requirement, and the party invoking federal jurisdiction bears the burden of
establishing its existence.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103-04 (1998).
A court may “intervene in the administration of the laws only when, and to the extent that, a
specific ‘final agency action’ has an actual or immediately threatened effect.” Lujan, 504 U.S. at
894.
III. ANALYSIS
If all rights to “publish” Operation Dark Heart, in writing or otherwise, belong to
St. Martin’s, than the Defendant Agencies might be correct in their assertion that Mr. Shaffer
lacks standing to bring a claim based upon the redacted text of the book. See, e.g., Serra v. U.S.
General Svcs. Admin., 847 F.2d 1045, 1049 (2d Cir. 1988) (finding that an artist “relinquished
his own speech rights in [a] sculpture” when he sold it to the General Services Administration).
Defendants, however, take an erroneously narrow view of “publication.” See, e.g., CBS, Inc. v.
Davis, 510 U.S. 1315, 1317 (1994) (describing broadcast of a videotape as publication)
(Blackmun, J., sitting as Circuit Justice).
Mr. Shaffer argues that the Defendant Agencies misread his contract with St.
Martin’s, as it is limited geographically (United States, Canada, and the Philippines) and
linguistically (English). Indeed, the contract states that St. Martin’s only has the right to publish
the book in English and that its rights to publish outside of the United States, Canada, and the
Philippines are “non-exclusive.” Opp’n, Ex. 2a [Dkt. 41-3]. Mr. Shaffer further argues that he
retains the right to have the text of his book published in over 125 countries around the world in
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several different languages; that he retains the motion picture rights to his book; that he retains
the right to write a new book or article; and that he may deliver speeches and/or appear as an
expert commentator based upon the text of Operation Dark Heart.
The Court finds that Mr. Shaffer did not sell all of his interest in his book by way
of the publishing contract with St. Martin’s. Mr. Shaffer retains rights to “publish” editions of
his book in different languages and in different countries and to otherwise “publish” the
experiences and ideas found in the book, including his right to “publish” his book orally.
Mr. Shaffer has standing to bring this suit based upon these retained rights. First,
he has alleged a concrete and particularized injury – a restraint on his speech. 4 He states that he
seeks to publish copies of his book, unredacted, and is unable to do so. Next, he alleges that his
injury is fairly traceable to the actions of the Defendant Agencies in that they prevented him
from publishing the unredacted version of the book. Mr. Shaffer’s Amended Complaint is
unclear as to what agenc(ies) made the decisions regarding text that required redaction or
whether Mr. Shaffer and St. Martin’s negotiated and agreed to redactions. Compare Am. Compl.
¶ 2, with ¶ 36. For the purpose of the instant motion, the Court accepts the Defendant Agencies’
characterization of these events as a reasonable interpretation of the Complaint: “the single claim
at issue here concerns . . . the Government’s classification decisions with respect to the text of
[Mr. Shaffer’] manuscript.” Reply at 9. The Court finds that Mr. Shaffer has sufficiently alleged
4
Furthermore, to the extent that the Defendant Agencies claim that a translation of Operation
Dark Heart written in a foreign language is a different text than the one submitted for
prepublication review, for the purposes of the standing analysis the Court finds that Mr. Shaffer
has sufficiently alleged injury with respect to such texts. The Defendant Agencies have already
made a classification decision regarding the English version of the text. Due to the preexisting
classification decision, Mr. Shaffer has alleged “an actual and well-founded fear that the law will
be enforced against him,” see Virginia v. American Booksellers Ass’n, 484 U.S. 383, 393 (1988),
in the form of civil and criminal penalties, see Am. Compl. ¶ 66, if he were to try to publish
foreign language versions of Operation Dark Heart without redaction. Mr. Shaffer’s injury in
this sense is both “actual” and “imminent.” Lujan, 504 U.S. at 561.
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that the Defendant Agencies made the relevant classification decisions that prevented him from
publishing the unredacted version of Operation Dark Heart. Third, Mr. Shaffer’s claims are
redressable because a favorable ruling from this Court would allow him to publish his book in its
unredacted form. Thus, Mr. Shaffer has satisfied the constitutional standing requirements.
The Defendant Agencies argue that Mr. Shaffer is perfectly able to “publish a
book in foreign countries or foreign languages” because nothing is preventing “him from
submitting those works for prepublication review.” Reply [Dkt. 43] at 4. They argue that such a
desire does not give him standing to complain now because prepublication review has not
happened for any such text. However, Mr. Shaffer is not seeking to publish “a book” around the
world; he is seeking to publish an unredacted copy of Operation Dark Heart to which he owns
the copyright.
The Defendant Agencies also argue that Mr. Shaffer cannot base his standing on
the three foreign publication contracts for Operation Dark Heart that he attached to his
Opposition brief. Mr. Shaffer attached contracts to publish his book in English in the British
Commonwealth and in the French and Turkish languages throughout the world. Opp’n, Exs. 2B-
2D [Dkts. 41-4 through 41-6]. The contracts give exclusive rights to publish the book in such
territories and languages to three different publishers. However, Mr. Shaffer wrote and wants to
publish his complete book as originally approved by the Army. There is no doubt that the
Defendant Agencies are preventing him from doing so. Whether he can ever offer an unredacted
copy to a publisher is the question and these contracts do not bar him from complaining to get an
answer.
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IV. CONCLUSION
Mr. Shaffer’s First Amendment interest in his book is not limited to any contract
he has signed thus far with a publisher in the United States or abroad. He has professed his
intent to publish an unredacted version of his book beyond the confines of his publishing
contracts. He maintains standing to seek relief from the Defendant Agencies classification
decisions regarding his text. A memorializing Order accompanies this Memorandum Opinion.
Date: November 2, 2012 /s/ _
ROSEMARY M. COLLYER
United States District Judge
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