A Political Exercise Masquerading as a Civil Lawsuit

Just prior to the mid—term elections, Ambassador Joseph Wilson IV and his wife Valerie Plame sued Scooter Libby, Vice—President Cheney, Richard Armitage and ten as yet  unnamed others, charging a variety of tort and constitutional claims.

'The Wilsons...insisted in the Proposed Briefing Schedule that defendants not file their motions to dismiss before Election Day.'(fn 1, p. 10 Armitage  Motion to Dismiss Case 1:06—cv—01258—JDB     Document 26—1     Filed 11/14/2006).

This insistence made it possible for the suit to generate yet more publicity for the twosome while hiding from the public the fact that, like all their other well—publicized claims against the Bush Administration, this has all the heft of a moth's wing.

In this suit the Wilsons are represented by the Soros—funded C.R.E.W. and Professor Erwin Chemerinsky, who filed the suit with little apparent knowledge of the facts underlying it.

Tuesday, Motions to Dismiss were filed by the Department of Justice, Armitage, Libby and Cheney. A Motion to Dismiss on the pleadings is essentially a Motion for Summary Judgment in the defendant's favor. In it the defense must show as a matter of law, that even if one assumed all the relevant factual assertions of the plaintiff were true, he has no case for the Court to decide because the law precludes his claims. If in such a motion it appears that there are genuine (not merely conclusory and unsupported) underlying disputes of fact which remain to be resolved, the motion must be denied—at least with respect to any count as to which there is a genuine dispute of fact which must be resolved before the issue can be judged.

So there are no new tidbits of fact to report. These motions are rather dry explications of the law and logical arguments based on the application of the law to the bare allegations in the complaint. Libby, however, does correctly note that (the case having been filed after Armitage's role was revealed) the factual claims are 'preposterous.'

Richard Armitage used rather colorful, but absolutely accurate, language to describe what the case involves:

'This case is a political exercise masquerading as a civil lawsuit. Plaintiffs Valerie Plame Wilson and Joseph Wilson apparently seek to score public relations points through the presentation of this lawsuit. However, the Wilsons' constitutional and state tort claims of causes of action against defendant Armitage fail to survive even minimal legal scrutiny.' (p. 10 Armitage Motion to Dismiss).

Since the various parties are in somewhat different positions as a matter of law, and since the claims against Armitage, who was added only in an amended complaint, are not identical to those made against Libby and Cheney, their arguments are not identical. But most of their defenses are the same. 

So rather than distinguish who argued what, I will summarize the broadest pleading, that of the Vice President, which covers all bases of the various defendants. I do this because after all the pre—election publicity surrounding the filing of the case, the newspapers are unlikely to give much space to these responses or the case's all—but—certain dismissal.

As a matter of documenting this extraordinary political exercise, I think the utter flimsiness of the litigation is worth observing and recording.

The general text of the Complaint is well—described in the brief filed by the Vice President:

Plaintiffs ask the Court to review the contents of a non—public conversation between Defendant, Vice President of the United States...to one of his closest advisors. Next they ask the Court to award them monetary damages on the basis of a simple and allegedly truthful statement by the Vice President during their lone conversation. Along the way, plaintiffs ask the Court to recognize for the first time four new constitutional rights under the Bivens doctrine. They ask the Court to do this despite the fact that they filled their suit some two years after the statute of limitations expired on their claims. Case 1 :06—cv—01258—JDB Document 21 Filed 11/14/2006, p. 10.

Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) is indeed the basis of the First Four Counts of the Complaint, but as all the defendants noted, the case is of no aid to the plaintiffs. In that case, the Supreme Court allowed suit against individuals employed by the FBN for damages suffered as a result of a warrantless search in clear violation of the Fourth Amendment. But the Court noted that in the Bivens case there were 'no special forces counseling hesitation' such as adequate remedial mechanisms otherwise available in the law as there are here, notably the Privacy Act (5 USC Sec 522(1)(2006) and the Intelligence Identities Protection Act, and the fact that the case cannot be resolved without judicial interference in the core political branch functions of the Executive and without delving into national security matters like Plame's status and job duties.

In fact, the Court has refused to extend Bivens to any new context or category of cases.

Were this not so, however, all parties note that the Bivens' rule in ascertaining what statute of limitations should apply must look to the closest analogous state tort law and apply that here. The closest law is D.C.'s defamation law which permits private suits for public disclosure of private facts. That law, however, even if it did apply, has a one year limitation on bringing suit. Since the disclosure appeared in Robert Novak's July 2003 article, this suit is two years too late even if Bivens permitted this suit — which it does not.

Further, even if Bivens did apply and the limitations period had not long passed, the suit would fail for the inability of the plaintiffs to establish the existence of all five elements of such a case: 

'(1) publicity; (2) absent any waiver or privilege; (3) given to private facts; (4) in which the public has no legitimate concern; and (5) which would be highly offensive to a reasonable person of ordinary sensibilities.' (Cheney brief, p. 51).

As to the constitutional claims in Counts I—IV, all parties contend that they are entitled to immunity unless no reasonable officer could have under the circumstances thought the conduct lawful. Since the alleged conduct is not and never have been considered 'clearly established' violations of the First and Fifth Amendment rights,' they must be dismissed under Bivens.

The Vice President's brief contains lengthy arguments on the non—existence of the constitutional rights claimed by Wilson/Plame, which essentially consist of no more than a claim that Wilson was entitled to say whatever he wanted about the Administration and the constitution barred even a truthful response on the facts to his claims. Thus, for example, Cheney notes correctly that a First Amendment claim has to allege that Wilson was 'chilled' in the exercise of his right to free speech. Wilson never asserts this in the complaint, and given his penchant for telling his serial lies to everyone who would listen, such a claim would be risible in any event.

Further, Plame's constitutional claim boils down to a right to retain a classified status, a unique and untenable assertion where the law makes clear that no one has a right to a security clearance, a job at the CIA, the right to challenge in Court the loss of a job there, and where, in any event she was not demoted, fired, or reassigned from her post.

Cheney contends that the suit is an effort to inject the court into the conduct of U.S. foreign policy, something forbidden by the separation of powers doctrine—an effort to second guess the discretionary acts of the Vice President in the absence of any 'discoverable or manageable standards for the resolution' by the Court of such a claim. In sum, that the dispute on that score is unjusticiable.

Citing the recent case Cheney v. U.S. District Court, 542 US 367 (2004), he notes that the Supreme Court has ruled that he is absolutely immune from civil suits seeking damages  for acts within the 'outer perimeters' of his official capacity.

As to the common law tort claim which is the basis of Count V of the complaint, the defendants cite the Federal Employees Liability Reform and Compensation Act of 1988 (the 'Westfall Act') 28 U.S.C. Sec, 2679 as amended (2000) which grants federal officials absolute immunity as to common law tort claims when acting within the scope of their employment at the time of the allegedly tortuous conduct.

The Department of Justice filed, along with its Motion to Dismiss, a Certification of Scope of Employment. In this it contends that the conduct alleged by the Wilsons is the type of conduct falling within the scope of the defendants' official duties.

The Justice Department's motion to dismiss the suit cited a Supreme Court decision noting that officers of the executive branch should not function under fear that their motives could lead to a lawsuit because it would restrict their ability to function as public officials.

"The United States has a strong interest in ensuring that federal officials are appropriately protected from personal liability in lawsuits arising as a result of their official positions," the Justice Department said.
"The United States believes that... the individual federal defendants have valid claims of immunity," the document said. "The vice president possesses absolute immunity from civil damages claims in connection with acts taken within the scope of his office."

In sum, this stunt, like all those by the dynamic Wilson—Plame duo, is going to end in a pratfall. They are reportedly leaving Washington for New Mexico.   and their house is on the market in preparation for their decamping.  I can't say I'm sorry to see them go, but I'm certain they will not get the down payment for their new digs out of this suit.

Clarice Feldman is an attorney in Washington, DC and a frequent contributor to American Thinker.

Just prior to the mid—term elections, Ambassador Joseph Wilson IV and his wife Valerie Plame sued Scooter Libby, Vice—President Cheney, Richard Armitage and ten as yet  unnamed others, charging a variety of tort and constitutional claims.

'The Wilsons...insisted in the Proposed Briefing Schedule that defendants not file their motions to dismiss before Election Day.'(fn 1, p. 10 Armitage  Motion to Dismiss Case 1:06—cv—01258—JDB     Document 26—1     Filed 11/14/2006).

This insistence made it possible for the suit to generate yet more publicity for the twosome while hiding from the public the fact that, like all their other well—publicized claims against the Bush Administration, this has all the heft of a moth's wing.

In this suit the Wilsons are represented by the Soros—funded C.R.E.W. and Professor Erwin Chemerinsky, who filed the suit with little apparent knowledge of the facts underlying it.

Tuesday, Motions to Dismiss were filed by the Department of Justice, Armitage, Libby and Cheney. A Motion to Dismiss on the pleadings is essentially a Motion for Summary Judgment in the defendant's favor. In it the defense must show as a matter of law, that even if one assumed all the relevant factual assertions of the plaintiff were true, he has no case for the Court to decide because the law precludes his claims. If in such a motion it appears that there are genuine (not merely conclusory and unsupported) underlying disputes of fact which remain to be resolved, the motion must be denied—at least with respect to any count as to which there is a genuine dispute of fact which must be resolved before the issue can be judged.

So there are no new tidbits of fact to report. These motions are rather dry explications of the law and logical arguments based on the application of the law to the bare allegations in the complaint. Libby, however, does correctly note that (the case having been filed after Armitage's role was revealed) the factual claims are 'preposterous.'

Richard Armitage used rather colorful, but absolutely accurate, language to describe what the case involves:

'This case is a political exercise masquerading as a civil lawsuit. Plaintiffs Valerie Plame Wilson and Joseph Wilson apparently seek to score public relations points through the presentation of this lawsuit. However, the Wilsons' constitutional and state tort claims of causes of action against defendant Armitage fail to survive even minimal legal scrutiny.' (p. 10 Armitage Motion to Dismiss).

Since the various parties are in somewhat different positions as a matter of law, and since the claims against Armitage, who was added only in an amended complaint, are not identical to those made against Libby and Cheney, their arguments are not identical. But most of their defenses are the same. 

So rather than distinguish who argued what, I will summarize the broadest pleading, that of the Vice President, which covers all bases of the various defendants. I do this because after all the pre—election publicity surrounding the filing of the case, the newspapers are unlikely to give much space to these responses or the case's all—but—certain dismissal.

As a matter of documenting this extraordinary political exercise, I think the utter flimsiness of the litigation is worth observing and recording.

The general text of the Complaint is well—described in the brief filed by the Vice President:

Plaintiffs ask the Court to review the contents of a non—public conversation between Defendant, Vice President of the United States...to one of his closest advisors. Next they ask the Court to award them monetary damages on the basis of a simple and allegedly truthful statement by the Vice President during their lone conversation. Along the way, plaintiffs ask the Court to recognize for the first time four new constitutional rights under the Bivens doctrine. They ask the Court to do this despite the fact that they filled their suit some two years after the statute of limitations expired on their claims. Case 1 :06—cv—01258—JDB Document 21 Filed 11/14/2006, p. 10.

Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) is indeed the basis of the First Four Counts of the Complaint, but as all the defendants noted, the case is of no aid to the plaintiffs. In that case, the Supreme Court allowed suit against individuals employed by the FBN for damages suffered as a result of a warrantless search in clear violation of the Fourth Amendment. But the Court noted that in the Bivens case there were 'no special forces counseling hesitation' such as adequate remedial mechanisms otherwise available in the law as there are here, notably the Privacy Act (5 USC Sec 522(1)(2006) and the Intelligence Identities Protection Act, and the fact that the case cannot be resolved without judicial interference in the core political branch functions of the Executive and without delving into national security matters like Plame's status and job duties.

In fact, the Court has refused to extend Bivens to any new context or category of cases.

Were this not so, however, all parties note that the Bivens' rule in ascertaining what statute of limitations should apply must look to the closest analogous state tort law and apply that here. The closest law is D.C.'s defamation law which permits private suits for public disclosure of private facts. That law, however, even if it did apply, has a one year limitation on bringing suit. Since the disclosure appeared in Robert Novak's July 2003 article, this suit is two years too late even if Bivens permitted this suit — which it does not.

Further, even if Bivens did apply and the limitations period had not long passed, the suit would fail for the inability of the plaintiffs to establish the existence of all five elements of such a case: 

'(1) publicity; (2) absent any waiver or privilege; (3) given to private facts; (4) in which the public has no legitimate concern; and (5) which would be highly offensive to a reasonable person of ordinary sensibilities.' (Cheney brief, p. 51).

As to the constitutional claims in Counts I—IV, all parties contend that they are entitled to immunity unless no reasonable officer could have under the circumstances thought the conduct lawful. Since the alleged conduct is not and never have been considered 'clearly established' violations of the First and Fifth Amendment rights,' they must be dismissed under Bivens.

The Vice President's brief contains lengthy arguments on the non—existence of the constitutional rights claimed by Wilson/Plame, which essentially consist of no more than a claim that Wilson was entitled to say whatever he wanted about the Administration and the constitution barred even a truthful response on the facts to his claims. Thus, for example, Cheney notes correctly that a First Amendment claim has to allege that Wilson was 'chilled' in the exercise of his right to free speech. Wilson never asserts this in the complaint, and given his penchant for telling his serial lies to everyone who would listen, such a claim would be risible in any event.

Further, Plame's constitutional claim boils down to a right to retain a classified status, a unique and untenable assertion where the law makes clear that no one has a right to a security clearance, a job at the CIA, the right to challenge in Court the loss of a job there, and where, in any event she was not demoted, fired, or reassigned from her post.

Cheney contends that the suit is an effort to inject the court into the conduct of U.S. foreign policy, something forbidden by the separation of powers doctrine—an effort to second guess the discretionary acts of the Vice President in the absence of any 'discoverable or manageable standards for the resolution' by the Court of such a claim. In sum, that the dispute on that score is unjusticiable.

Citing the recent case Cheney v. U.S. District Court, 542 US 367 (2004), he notes that the Supreme Court has ruled that he is absolutely immune from civil suits seeking damages  for acts within the 'outer perimeters' of his official capacity.

As to the common law tort claim which is the basis of Count V of the complaint, the defendants cite the Federal Employees Liability Reform and Compensation Act of 1988 (the 'Westfall Act') 28 U.S.C. Sec, 2679 as amended (2000) which grants federal officials absolute immunity as to common law tort claims when acting within the scope of their employment at the time of the allegedly tortuous conduct.

The Department of Justice filed, along with its Motion to Dismiss, a Certification of Scope of Employment. In this it contends that the conduct alleged by the Wilsons is the type of conduct falling within the scope of the defendants' official duties.

The Justice Department's motion to dismiss the suit cited a Supreme Court decision noting that officers of the executive branch should not function under fear that their motives could lead to a lawsuit because it would restrict their ability to function as public officials.

"The United States has a strong interest in ensuring that federal officials are appropriately protected from personal liability in lawsuits arising as a result of their official positions," the Justice Department said.
"The United States believes that... the individual federal defendants have valid claims of immunity," the document said. "The vice president possesses absolute immunity from civil damages claims in connection with acts taken within the scope of his office."

In sum, this stunt, like all those by the dynamic Wilson—Plame duo, is going to end in a pratfall. They are reportedly leaving Washington for New Mexico.   and their house is on the market in preparation for their decamping.  I can't say I'm sorry to see them go, but I'm certain they will not get the down payment for their new digs out of this suit.

Clarice Feldman is an attorney in Washington, DC and a frequent contributor to American Thinker.