Shaffer v. Peirce ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
ANTHONY SHAFFER, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 06-271 (GK)
)
DEFENSE INTELLIGENCE AGENCY, )
et al., )
)
Defendants. )
______________________________)
MEMORANDUM OPINION
Plaintiffs Anthony Shaffer (“Shaffer”) and J.D. Smith
(“Smith”) bring this action against Defendants the Defense
Intelligence Agency (“DIA”); the Department of Defense (“DoD”); the
Department of the Army (“Army”); George Peirce, General Counsel of
DIA; Robert Berry, Jr., Principal Deputy General Counsel of the
DIA; William J. Haynes, II, General Counsel of the DoD; and Tom
Taylor, Senior Deputy General Counsel of the Army,1 pursuant to the
Federal Declaratory Judgment Act, 28 U.S.C. § 2201, the
Administrative Procedure Act, 5 U.S.C. § 701 et seq., the All Writs
Act, 28 U.S.C. § 1651, and the First Amendment of the U.S.
Constitution. Plaintiffs seek declaratory and injunctive relief.
1
The Complaint identifies Tom Taylor as Senior Deputy
General Counsel. In its papers, the Government refers to Taylor as
General Counsel of the Army.
On August 10, 2006, Plaintiffs’ claims against Defendants
Peirce and Berry in their individual capacities were dismissed.
This matter is before the Court on Defendants’ Motion to
Dismiss all remaining claims [Dkt. No. 13]. Upon consideration of
the Motion, Opposition, Reply, the entire record herein, and for
the reasons set forth below, Defendants’ Motion to Dismiss is
granted in part and denied in part.
I. Background2
Plaintiffs Anthony Shaffer and J.D. Smith were involved in a
DoD project known as “ABLE DANGER.” Plaintiff Shaffer worked on
the project as a civilian employee of the DIA, and was also a
Lieutenant Colonel in the U.S. Army Reserves. Plaintiff Smith was
a civilian defense contractor. Plaintiff Smith’s work on ABLE
DANGER was unclassified. Defs.’ Mot., Exh. C.
ABLE DANGER was a U.S. Special Operations Command military
intelligence program. Its mission was to develop an Information
Operations Campaign Plan against transnational terrorism.
2
For purposes of ruling on a motion to dismiss for lack of
subject matter jurisdiction, the factual allegations of the
complaint are generally presumed to be true. See Phoenix
Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir.
2000). Although a court may resolve a motion to dismiss for lack
of subject matter jurisdiction “on the complaint standing alone,”
a court may also consider materials outside the pleadings. Coal.
for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir.
2003). Therefore, the facts set forth herein are taken from the
First Amended Complaint, unless otherwise noted.
2
At an unspecified date prior to September 11, 2001, ABLE
DANGER identified four individuals as possible members of an Al
Qaeda cell that was linked to the 1993 bombing of the World Trade
Center. One of these four individuals was Mohamed Atta.
By the spring of 2001, information collected as part of the
ABLE DANGER program was destroyed, and the program was shut down.
The DIA destroyed files maintained by Plaintiff Shaffer in his DIA
work space, including some files related to ABLE DANGER.
On September 11, 2001, four commercial planes were hijacked.
Two planes were flown into the World Trade Center towers, one was
flown into the Pentagon, and one crashed in Pennsylvania. In
total, nearly 3,000 people were killed. The hijackers included
Mohamed Atta and the three other individuals identified by ABLE
DANGER.
In the wake of the events of September 11, 2001, the 9/11
Commission (“Commission”) was formed. In October 2003, Plaintiff
Shaffer discussed ABLE DANGER with Philip Zelikow, the Commission’s
Executive Director, when both were in Bagram, Afghanistan.3 He
informed Zelikow that ABLE DANGER had identified individuals who
were later learned to be participants in the September 11
hijacking, including Atta.
3
The parties do not indicate why either person was in Bagram
at that time.
3
In response, Zelikow told Plaintiff Shaffer that this
information was “very important,” provided Plaintiff Shaffer with
his business card, and asked him to contact the Commission upon his
return to the United States. When Plaintiff Shaffer returned to
the United States in January 2004, he contacted the Commission.
The Commission informed Shaffer that it possessed all the
information on ABLE DANGER that it needed.
The Commission also received information about ABLE DANGER
from Navy Captain Scott Phillpott. In July 2004, Phillpott met
with staff members from the Commission and informed them that ABLE
DANGER had identified some of the hijackers prior to September 11,
2001.
Despite Plaintiff Shaffer’s conversation with Zelikow and
Phillpott’s meeting with Commission staff, the Commission concluded
that U.S. intelligence agencies had not identified Atta as a
potential terrorist prior to September 11. Two of the members of
the Commission claim that they received no information about ABLE
DANGER. The Commission’s final report does not mention ABLE
DANGER.
After the Commission released its final report, members of the
media inquired about the Commission’s investigation of ABLE DANGER.
In response, Thomas Kean, the Commission’s Chair, and Lee Hamilton,
its Vice Chair, issued a statement claiming that the Commission had
been aware of ABLE DANGER but that it had no information that ABLE
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DANGER identified any of the hijackers prior to September 11, 2001.
The statement also confirmed that Phillpott had met with Commission
staff but noted that this meeting had occurred only days before the
final report was scheduled to be released.
Since the spring of 2005, Plaintiff Shaffer has briefed
Congressional committees and their staff members on ABLE DANGER.
He has also described retaliation that he suffered from the DIA
because of his discussions about ABLE DANGER.
In a letter dated August 30, 2005, Plaintiff Shaffer’s
counsel, Mark Zaid, requested that Defendants permit him and his
law partner, Roy Krieger, to discuss classified information
regarding ABLE DANGER with their clients. In a letter dated August
31, 2005, counsel repeated the same request with regard to an
invitation from the Senate Judiciary Committee to present
testimony.
In a letter dated September 16, 2005, Defendants rejected the
requests. Pls.’ Opp’n, Exh. 5. The letter stated that Plaintiff
Shaffer had not demonstrated that access to classified information
was “necessary” for counsel to “adequately” represent his client.
Id. It also stated that due to counsel’s “abusive” past behavior
(including conduct described as a “‘Rambo’ litigation tactic” by
one judge in this District, Assassination Archives & Research Ctr.
v. CIA, 48 F. Supp. 2d 1, 10 (D.D.C. 1999) (Lamberth, J.)),
allowing him to access classified information “would not represent
5
an acceptable security risk.” Id. Based on these two rationales,
the letter concluded that denying Plaintiffs’ counsel’s request
would be consistent with DoD regulations. Id.Plaintiffs Shaffer and Smith were scheduled to testify about
ABLE DANGER before the Senate Judiciary Committee in September
2005. Shaffer submitted his proposed testimony to the DoD for
classification review. The DoD never responded, but Defendants
claimed that all information was classified and refused to permit
the testimony. On September 21, 2005, Plaintiffs’ counsel
testified in lieu of Plaintiffs.
On an unspecified date prior to this testimony, the DIA
revoked Plaintiff Shaffer’s security clearance. It alleged that he
had engaged in criminal conduct and that he was not credible.
In October 2005, the DoD Office of Inspector General (“OIG”)
initiated an investigation into two allegations: (1) that the
government improperly handled information gathered under ABLE
DANGER, and (2) that the DIA retaliated against Plaintiff Shaffer.
Defs.’ Mot., Exh. I.
Between October 2005 and April 2006, OIG investigators
conducted more than seventy interviews. Id. Plaintiff Shaffer was
interviewed twice, both times in the presence of his counsel. Id.Neither interview involved classified information. Id. Plaintiff
Smith was interviewed once. No classified information was
discussed, and his counsel was present at the interview. Id. The
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supervisor of the investigation has stated that any future
interviews with Plaintiffs will not discuss classified information.
Id.In a letter dated February 2, 2006, counsel again requested
that Plaintiffs be permitted to share classified information with
counsel. In a letter dated February 14, 2006, Defendants again
rejected the request.
On February 15, 2006, Plaintiffs testified before two
subcommittees of the House Armed Services Committee. The hearing
included an open session and a closed session. During the open
session, Plaintiff Shaffer noted that he would not be permitted
counsel in the closed session. He stated that testifying without
counsel would place him in legal jeopardy. Prior to the start of
the closed hearing, Plaintiff Smith was informed that he would not
be permitted to testify during the closed session. Neither
Plaintiff attended the closed portion of the hearing.
II. Standard of Review
To survive a motion to dismiss, a plaintiff need only plead
“enough facts to state a claim to relief that is plausible on its
face” and to “nudge[ ] [his or her] claims across the line from
conceivable to plausible.” Bell Atl. Corp. v. Twombly, __ U.S. __,
127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). “[O]nce a claim has
been stated adequately, it may be supported by showing any set of
7
facts consistent with the allegations in the complaint.” Id. at
1969.
Under the Twombly standard, a “court deciding a motion to
dismiss must not make any judgment about the probability of the
plaintiff's success . . . must assume all the allegations in the
complaint are true (even if doubtful in fact) . . . [and] must give
the plaintiff the benefit of all reasonable inferences derived from
the facts alleged.” Aktieselskabet AF 21. November 2001 v. Fame
Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (internal quotation
marks and citations omitted).
III. Analysis
A. Defendants Department of the Army and Tom Taylor Were Not
Properly Served.
In their Motion, two Defendants, the Army and its Senior
Deputy General Counsel Tom Taylor, allege that they were not
properly served. Defendants filed their Motion on April 7, 2006.
After Defendants filed their Motion and before Plaintiffs filed
their Opposition on May 12, 2006, Plaintiffs served several
Defendants. See Pls.’ Reply at 12. However, Plaintiff has offered
no proof, and the official docket contains no proof, that either
the Army or Senior Deputy General Counsel Taylor were ever served,
no less served within the 120 days from the filing of the Complaint
allowed under Fed. R. Civ. P. 4(m).
Consequently, Defendants Army and Taylor will be dismissed.
8
B. Plaintiff Shaffer’s Claims Regarding Future Congressional
Testimony Are Not Ripe; Neither the Standing Doctrine Nor
the Ripeness Doctrine Bars Him from Pursuing His Claims
with Respect to the OIG Investigation and the Attorney-
Client Relationship.
Article III of the U.S. Constitution “confines the federal
courts to adjudicating actual ‘cases’ and ‘controversies.’” Allen
v. Wright, 468 U.S. 737, 750 (1984). Because standing and ripeness
are two elements of the case or controversy requirement, a court
does not have subject matter jurisdiction if a plaintiff lacks
standing or if the case is not ripe. See In re Navy Chaplaincy,
534 F.3d 756, 759 (D.C. Cir. 2008) (“One of the controlling
elements in the definition of a case or controversy under Article
III is standing.”) (quoting Hein v. Freedom From Religion Found.,
Inc., __ U.S. __ , 127 S.Ct. 2553, 2562, 168 L.Ed.2d 424 (2007);
see Boston & Maine Corp. v. Surface Transp. Bd., 364 F.3d 318, 319
(D.C. Cir. 2004) (when a plaintiff lacks standing, the court lacks
subject matter jurisdiction); see Exxon Mobil Corp. v. Fed. Energy
Regulatory Comm’n, 501 F.3d 204, 207 (D.C. Cir. 2007) (ripeness is
a question of subject matter jurisdiction).
To establish standing, a plaintiff must prove that she has
suffered an “injury in fact,” that the injury is “fairly traceable
to the challenged action of the defendant,” and that it is “likely”
that the injury will be “redressed by a favorable decision.” Lujan
v. Defenders of Wildlife, 504 U.S. 560-61 (1992) (internal
punctuation and citations omitted).
9
A plaintiff demonstrates that he suffered an “injury in fact”
when he shows that he suffered “an invasion of a legally protected
interest” that was both “concrete and particularized” and “actual
or imminent.” Id. at 560 (internal citations omitted). An injury
that is “conjectural or hypothetical,” “remote,” or “speculative”
is not sufficient. Id. (internal punctuation and citations
omitted); see also In re Navy Chaplaincy, 534 F.3d at 759-60.
The ripeness doctrine “prevent[s] the courts, through
avoidance of premature adjudication, from entangling themselves in
abstract disagreements.” Abbott Labs. v. Gardner, 387 U.S. 136,
148-49 (1967). A case is not ripe for adjudication when it “rests
upon contingent future events that may not occur as anticipated, or
indeed may not occur at all.” Texas v. United States, 523 U.S.
296, 300 (1998) (internal quotations and citations omitted).
In determining whether a case is ripe, a court must weigh two
considerations: the “fitness of the issues for judicial decision
and the hardship to the parties of withholding court
consideration.” Exxon Mobil Corp., 501 F.3d at 208 (quoting Abbott
Labs., 387 U.S. at 149). The first prong requires a court to
consider “any institutional interests that either the court or the
agency may have for postponing review.” State Farm Mut. Auto. Ins.
Co. v. Dole, 802 F.2d 474, 479 (D.C. Cir. 1986). A court has a
“legitimate interest in avoiding adjudication of speculative
controversies.” Id. An issue may be fit for judicial review if it
10
is a “purely legal one.” Id.; see also Cement Kiln Recycling Coal.
v. EPA, 493 F.3d 207, 215 (D.C. Cir. 2007) (purely legal questions
are “presumptively reviewable”). However, even some purely legal
questions may not satisfy the ripeness test “if postponing review
would provide for a more efficient examination and disposition of
the issues.” State Farm Mut. Auto. Ins. Co., 802 F.2d at 479.
The second prong of the ripeness doctrine requires a court to
consider whether delaying judicial review would cause the plaintiff
to suffer a “hardship” that is “immediate, direct, and
significant.” Id. at 480. For example, a company that must
undertake costly changes in response to impending regulation may
satisfy this “hardship” prong. Id. However, if a plaintiff has
alleged a “mere potential for future injury” or “if there are too
many ‘ifs’ in the asserted causal chain,” then the case is not
ripe. Id.It is important to emphasize that at this point in the
proceedings, the Court is not addressing the merits of Plaintiff
Shaffer’s claims. See In re Navy Chaplaincy, 534 F.3d at 760 (“In
reviewing the standing question, we must be careful not to decide
the questions on the merits for or against the plaintiff, and must
therefore assume that on the merits the plaintiffs would be
successful in their claims.”) (internal quotation marks and
citations omitted). Under the standing and ripeness inquiries, the
hurdle that Plaintiff Shaffer must clear is a low one. See Ross v.
11
Bank of Am., N.A., 524 F.3d 217 (2d Cir. 2008) (“Injury in fact is
a low threshold, which we have held ‘need not be capable of
sustaining a valid cause of action,’ but ‘may simply be the fear or
anxiety of future harm.’”) (citations omitted).
In this case, Plaintiffs have requested injunctive and
declaratory relief that would permit them to discuss classified
information regarding ABLE DANGER with their counsel. They claim
that they possess a First Amendment constitutional right “to share
classified or potentially classified information with . . . cleared
counsel in order to obtain effective legal representation that
would permit adequate guidance and analysis” on relevant legal
claims. Pls’ Opp’n at 11-12. They do not seek relief for past
harm. Defs.’ Mot at 10 n.4; see generally Pls.’ Opp’n (never
contradicting Defendants’ assertion that Plaintiffs seek only
prospective relief); see also Compl. at 12 (requesting only
injunctive and declaratory relief).
The First Amended Complaint does not distinguish between the
claims of the two Plaintiffs. See Compl. at 12 (requesting
declaratory and injunctive relief for “plaintiffs” and never
requesting a form of relief for one plaintiff not requested for the
other). However, Defendants’ Motion raises specific arguments with
respect to Plaintiff Smith. It argues that because he did not work
on the classified elements of ABLE DANGER, “there is no possible
justification” for giving his attorney access to classified
12
information relating to the program. Defs.’ Mot. at 12. In his
Opposition, Plaintiff Smith “consents to the voluntary dismissal of
his claims pursuant to Rule 41 of the Federal Rules of Civil
Procedure.” Pls.’ Opp’n at 1 n.2. Accordingly, all of Plaintiff
Smith’s claims are dismissed.
With respect to Plaintiff Shaffer’s claims, he mentions three
venues in which sharing classified information with his attorneys
is necessary: (1) future Congressional proceedings, (2) the OIG
investigation, and (3) the attorney-client relationship.
1. Congressional Hearings
With regard to future Congressional hearings, Defendants argue
that Plaintiff Shaffer has not suffered an injury-in-fact and that
his claim is not ripe for adjudication for three reasons. First,
no Congressional hearings are currently scheduled, and Plaintiff
Shaffer has provided no evidence that they will occur in the
future. Second, Plaintiff Shaffer has not established that he will
be required to testify at any Congressional hearings even if they
are scheduled in the future. Third, even if he is required to
testify, he has not shown that he will be required to discuss
classified information during such testimony. Defs.’ Mot. at 13.
In response, Plaintiff Shaffer claims that Congress “remains
very involved” with its inquiry into ABLE DANGER. Pls.’ Opp’n at
12. For support, he cites the Declaration of Congressman Curt
Weldon. Id. at 13. In the Declaration, Congressman Weldon stated
13
that he “fully anticipate[s] that additional hearings will be
scheduled” and that certain unspecified Members of Congress “wish”
to receive a briefing from Plaintiff Shaffer in a “classified
environment.” Pls.’ Opp’n, Exh. 8 at ¶ 4. He also expressed
concern that Congress may schedule testimony with “very little
notice” and that this would “likely” prevent “timely” judicial
action. Id.
Plaintiff Shaffer has failed to present any evidence other
than pure speculation about the possibility of future Congressional
hearings. As Defendants correctly argue, no hearings are
scheduled, Plaintiff Shaffer’s presence has not been requested, and
it is uncertain whether classified testimony will be necessary in
the event that Congress does require his testimony.4
Plaintiff Shaffer has also failed to demonstrate that delay
would impose a hardship on him. His claim is based on the
occurrence of several “ifs”: he speculates about possible hearings
at an unknown point in the future that may or may not require
discussion of classified information. He also speculates that a
court could not act quickly enough to address his concerns, even
though he offered no evidence to suggest that a court would be
unable to resolve the question on short notice, such as on a motion
4
Plaintiff’s Opposition was filed on May 12, 2006. It
should be noted no supplemental information has been submitted
since that date regarding any future Congressional hearings about
ABLE DANGER.
14
for temporary restraining order,5 in the event that the type of
hearings he anticipates are indeed scheduled. In sum, there is no
concrete evidence that he will suffer any hardship if his claims
are not adjudicated at this time. Therefore, Plaintiff Shaffer’s
claims relating to his right to representation at Congressional
hearings are not yet ripe.
2. OIG Investigation
Defendants also argue that Plaintiff Shaffer does not possess
standing for his claims related to the OIG investigation because he
has not alleged that he suffered a legally cognizable injury. They
have submitted a declaration from the supervisor of the OIG
investigation stating that the investigation did not require
Plaintiff Shaffer to discuss classified information. Defs.’ Mot.,
Exh. I. In addition, counsel were permitted to be present each
time Plaintiffs were interviewed. Id.
In response, Plaintiff Shaffer acknowledges that although the
OIG investigation has not yet required discussion of classified
material, permitting his attorney access to classified information
would have enabled him to go “into more detail on his involvement
and knowledge of ABLE DANGER activities and DIA retaliation.”
Pls.’ Opp’n at 14 n.3.
5
That is precisely the procedure Plaintiff Shaffer followed
when he filed his request for a temporary restraining order on
February 15, 2006.
15
The OIG investigation involves two inquiries: first, it is
investigating Plaintiff Shaffer’s allegations of reprisal, and
second, it is investigating whether government officials acted
“improperly” in handling information from ABLE DANGER. Defs.’
Mot., Exh. I. It is true that we do not know, on this record,
whether Defendants will or will not request another interview with
Plaintiff Shaffer or whether they will or will not ask him to
discuss classified information. However, what is clear is that the
investigation itself and its report and conclusions may well have
a significant impact on his employment status and his livelihood.
Defendants contend that because Plaintiff conceded that “all
personnel actions against Shaffer have been stayed pending the
conclusion” of the OIG investigation, Pls.’ Opp’n at 14, he cannot
survive the standing and ripeness inquiries. Although Defendants
contend that the stay indicates that he has suffered no injury,
they have misidentified the relevant injury in this case. The
question is not whether Plaintiff Shaffer could be subject to an
adverse personnel decision at some point in the future, it is
whether he suffers an injury in the present by virtue of being
denied effective legal representation.
Despite the existence of the stay until completion of the OIG
proceedings, the evidence produced and conclusions reached in those
proceedings may greatly impact whatever employment determinations
are eventually made. For this reason, Plaintiff Shaffer has a
16
compelling interest in obtaining the most fully informed and
knowledgeable representation possible during the OIG investigation.
A fully candid and comprehensive discussion with his attorney,
one that included discussion of the classified aspects of his work
on ABLE DANGER, might present opportunities for alternative
advocacy options, might open up possibilities for new claims or
counter-claims, and might justify additional claims of wrongdoing
by Defendants.
If Defendants were correct, Plaintiff would be forced to wait
until conclusion of the investigation to litigate his employment-
related claims. At that point, he may already have lost his job
and reputation. Failure to present his strongest possible case
during the investigation may cause him irreparable harm.
Accordingly, delaying judicial resolution of his claim could cause
Plaintiff Shaffer immediate hardship.
For these reasons, Plaintiff Shaffer has alleged, with respect
to the OIG proceedings, that he has and will continue to suffer
actual, concrete injury-in-fact because of the limitations placed
on his consultation with his attorney, and therefore he has
standing and his claims are ripe for adjudication.
3. The Attorney-Client Relationship
Finally, Plantiff Shaffer alleges that his First Amendment
right to discuss classified information with his attorney does not
rest “solely” on the Congressional and OIG proceedings. Pls.’
17
Opp’n at 11. Instead, he argues that his claim has a “scope that
is far broader than defendants imply.” Id. He argues that his
claim seeks to “strengthen, and protect from intrusion, the entire
attorney-client relationship.” Id. at 12.
In response, Defendants contend that ripeness and standing
principles bar judicial resolution of Plaintiff Shaffer’s claims
with respect to the “entire” attorney-client relationship.
Defendants contend that “Plaintiff seeks a ruling on important
constitutional questions based upon facts that have not, and may
never occur.” Defs.’ Reply at 2. They also argue that Plaintiff
Shaffer has not identified “his alleged need for his counsel to
have access to classified information.” Id. at 11.
Plaintiff Shaffer presents several reasons that he “continues
to face legal peril at the hands of the defendants.” Id. at 14.
His security clearance was revoked. Id. He may be fired. Id. He
“may or may not” possess whistleblower rights because of the
possibility that the government will take adverse employment action
against him. Id. He “holds potential claims against the U.S.
government under the Constitution and various
regulations/statutes.” Id. Finally, he is unable to “receive
sound advice” or “speak freely” with his attorneys. Id. at 19.
Several cases cited by Plaintiff Shaffer underscore the
importance of the attorney-client relationship. See, e.g., Caplin
& Drysdale v. United States, 491 U.S. 617 (1989); Jacobs v.
18
Schiffer, 204 F.3d 259 (D.C. Cir. 2000). These cases affirm the
First Amendment right to share information with an attorney when
such sharing is necessary for an attorney to advise his client of
his rights.
As is true of his claims regarding the OIG investigation,
Plaintiff Shaffer has demonstrated that his claims are ripe for
adjudication and that he has suffered an actual, concrete injury-
in-fact sufficient to confer standing. Plaintiff Shaffer fears
that he may be fired, and he is contemplating his options for
seeking the protection of whistleblower statutes. His statement
that he is considering “potential claims” reflects his desire to
understand the full panoply of legal options available to him.
Evaluating, investigating, and litigating these rights depends
upon open and frank conversations between Plaintiff Shaffer and his
attorney. See Martin v. Lauer, 686 F.2d 24, 32 (D.C. Cir. 1982)
(“Appellants’ interest in speaking freely with their attorneys is
interwoven with their right to effective assistance of counsel.”).
As the Supreme Court stated in Upjohn Co. v. United States, 449
U.S. 383, 390-91 (1981), “[t]he first step in the resolution of any
legal problem is ascertaining the factual background and sifting
through the facts with an eye to the legally relevant.” When that
first step is compromised, a plaintiff suffers a concrete injury.
Furthermore, without knowing all that his client, and the
Defendants, know, Plaintiff Shaffer’s counsel cannot be prepared to
19
adequately represent his client’s interests. In summary, when
Plaintiff Shaffer is deprived of the ability to convey all his
knowledge to his attorney, he suffers an actual, concrete injury
sufficient to confer standing, and his claims become ripe for
adjudication.
IV. Conclusion
For the reasons set forth above, Defendants’ Motion to Dismiss
is granted with respect to all of Plaintiff Smith’s claims, and
with respect to the Department of the Army and Tom Taylor. For
Plaintiff Shaffer’s claims, the Motion is granted with respect to
representation at Congressional hearings and denied with respect to
the OIG proceedings and protection of the attorney-client
relationship. An Order shall accompany this Memorandum Opinion.
/s/
February 24, 2009 Gladys Kessler
United States District Judge
Copies via ECF to all counsel of record
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