Wayne Anderson v. Ashton B. Carter
419 U.S. App. D.C. 362
| D.C. Cir. | 2015Background
- Wayne M. Anderson, a freelance journalist, obtained NATO/ISAF embed status in Afghanistan in 2010 after signing the ISAF "Media Ground Rules."
- During his first week embedded, Anderson photographed and posted video of casualties from a shooting incident; military officials concluded the media revealed identifiable soldiers and violated the Ground Rules.
- Colonel Bush approved termination of Anderson’s accommodated embed status; Colonel Julian denied his administrative appeal; Anderson was returned to the U.S.
- Anderson sued federal officials in both individual and official capacities alleging First Amendment retaliation, breach of contract (based on the Ground Rules acknowledgment), and a request for declaratory relief; district court dismissed the complaint.
- On appeal Anderson limited his challenge to official-capacity relief, arguing First Amendment and APA claims; the D.C. Circuit affirmed dismissal for lack of jurisdiction (sovereign immunity/APA exception) and, alternatively, mootness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sovereign immunity is waived under the APA for review of the embed-termination | Anderson: APA §702 waives immunity and permits review of termination | Government: APA excludes "military authority exercised in the field in time of war," so no waiver | Held: APA exception applies; sovereign immunity bars APA review |
| Whether the First Amendment retaliation claim against officials in their official capacities is cognizable (equitable/declaratory relief) | Anderson: seeks equitable and declaratory relief for retaliation; claim should proceed | Government: action against the U.S. (official-capacity) is barred absent waiver; claim effectively seeks relief covered by sovereign immunity | Held: Court concludes no cognizable claim in this case and affirms dismissal (majority) |
| Whether the complaint actually pleads a First Amendment claim vs. procedural due process | Anderson: complaint alleges First Amendment retaliation (Count I) and seeks declaratory relief | Government: complaint’s prayer focuses on procedural due process and plaintiff has no constitutional entitlement to embed status | Held: Majority treated the pleading as insufficient to create a justiciable First Amendment entitlement and sustained dismissal; concurrence would read First Amendment claim as adequately pled |
| Whether the case is moot given the drawdown of operations and NATO administration of remaining embed program | Anderson: declaratory relief could remedy reputational injury and preserve a live controversy | Government: drawdown and NATO control make reinstatement impossible and no effective relief is available | Held: Majority: claim is moot (no effective relief available); Concurrence: dispute not necessarily moot and declaratory relief could still redress ongoing reputational harm |
Key Cases Cited
- Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (jurisdictional requirement precedes merits)
- United States v. Mitchell, 463 U.S. 206 (United States may not be sued without consent)
- Lane v. Pena, 518 U.S. 187 (waiver of sovereign immunity strictly construed)
- Bas v. Tingy, 4 U.S. 37 (early discussion of "imperfect" or undeclared war)
- Flynt v. Rumsfeld, 355 F.3d 697 (no constitutional right to be embedded)
- Foretich v. United States, 351 F.3d 1198 (declaratory relief can remedy reputational injury where government action directly causes it)
- Church of Scientology v. United States, 506 U.S. 9 (mootness where no effectual relief is possible)