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The Timing of the Wilsons' Lawsuit in PlameGate


I've been wondering why the Wilsons chose today to file their civil lawsuit against Cheney, Libby, Rove et. al. (Background here.)

I figure it has to do with the statute of limitations. July 14, 2003 was when Bob Novak's column outing Valerie Plame was published. So, there must be a three year statute of limitations lurking somewhere.

It's not that easy to determine. The lawsuit is a Bivens federal civil rights lawsuit. Bivens is a judicially created remedy that does not have its own statute of limitations. Usually, Bivens actions borrow the limitations statute in the state where the action arose. And, while state law establishes the statute of limitations, federal law determines when the federal Bivens claims accrued.

Under federal law, the statute of limitations on a Bivens claim "begins to run when the plaintiff knows or has reason to know of the existence and cause of the injury which is the basis of his action." This would seem to be the date Novak's column was published.

Some of the Wilsons' claims allege a violation of their 5th Amendment due process rights. The Supreme Court has recognized the due process clause and its equal protection component as being valid for Bivens claims.

A cause of action and damages remedy can be implied directly under the Constitution when the Due Process Clause of the Fifth Amendment is violated.....

The equal protection component of the Fifth Amendment's Due Process Clause confers on petitioner a federal constitutional right to be free from gender discrimination that does not serve important governmental objectives or is not substantially related to the achievement of such objectives.

The term "cause of action," as used in this case, refers to whether a plaintiff is a member of a class of litigants that may, as a matter of law, appropriately invoke the power of the court. Since petitioner rests her claim directly on the Due Process Clause of the Fifth Amendment, claiming that her rights under that Amendment have been violated and that she has no effective means other than the judiciary to vindicate these rights, she is an appropriate party to invoke the District Court's general federal-question jurisdiction to seek relief, and she therefore has a cause of action under the Fifth Amendment.

Once again, what Novak wrote is this:

Wilson never worked for the CIA, but his wife, Valerie Plame, is an Agency operative on weapons of mass destruction. Two senior administration officials told me Wilson's wife suggested sending him to Niger to investigate the Italian report. The CIA says its counter-proliferation officials selected Wilson and asked his wife to contact him. "I will not answer any question about my wife," Wilson told me.

To be continued.

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  • Posts like these are why I love this blog. Thanks for the info about a question no one else is asking, and for clarifying the civil rights cause of action. I must admit, when I heard that a civil rights cause of action was part of the suit, I was like "whaaa?" Now I know better.

    I admit I'm not a legal expert but don't understand how Bivens, viewed through the lens of Davis or not, is relevant to Plame. If I understand it properly, Bivens says that when a citizen is deprived of his 4th Amendment rights against unreasonable search and seizure, the federal courts may offer a monetary remedy. Davis (once again, in my understanding), recognizes the ability to offer similar remedies for violations of the Due Process Clause of the 5th Amendment. I don't see how Plame can assert either (a) that she was the victim of an illegal search and seizure (which would trigger Bivens) or (b) that her outing was done as a form of gender discrimination (which would trigger Davis.) Is there more to those cases than I understand there to be?

    Re: The Timing of the Wilsons' Lawsuit in PlameGat (none / 0) (#3)
    by orionATL on Thu Jul 13, 2006 at 08:09:46 PM EST
    thanks for the info. no way i would have found this out, had i even had the good sense to try. i suppose the wilsons have thought this thorough, but civil law suits are treacherous i can only hope this one will be like the o.j. simpson civil suit where culpability is more apparent than in fitzgerald's charges. still, it's a demanding choice for the wilson's.

    Oops. Been out of the loop for a while and made the mistake of reading the blog from the top down. Didn't see scribe's comments on the matter. Please ignore my question.

    Re: The Timing of the Wilsons' Lawsuit in PlameGat (none / 0) (#5)
    by scribe on Thu Jul 13, 2006 at 08:19:47 PM EST
    Re: Bivens, Davis, etc. (1) Bivens was the leading case. The others follow on it and expanded the analytical rubric of Bivens. Essentially (and keeping it simple), Bivens says if a federal official violates a constitutionally-protected right, you can sue for damages resulting from that violation. (2) Plame is not alleging a violation of the 4th Amendment. The plaintiffs are alleging violations of a couple of rights bound up in the 5th Amendment - destruction of a property right without due process, privacy. I'm assuming they've done their homework and pleaded recognized causes of action, i.e., someone else made the precedent for the violations being compensable in damages through a Bivens theory. I believe the theory in Davis was not necessarily sex discrimination, rather it was destruction of the property right in the career without due process.* That the destruction there came about through sex discrimination (or whatever) and the destruction here came about through disclosure of her covert status is a difference in means (how destroyed), but not ends (destroyed career). * Remember, the Constitution requires due process before the government takes away or destroys your property - be it a house they want to condemn, a car they want to seize, or, in this case, a career.

    This is a possiblity, but I would not be surprised if it is off the mark in important ways. I think the Fifth Amendment reference is to the idea that no person shall be "deprived of life, liberty, or property" without due process of law. Plame is arguing that her property (future earnings, reputation, well-being, job, etc.) were deprived of her by the government (in the form of the conspiracy alleged elsewhere). Or, in the alternative, her liberty, but this is probably a stretch, as the freedom to be a spy is a bit dubious. The due process part is the doorway through which other alleged harms are addressed under Bivens (such as the 4th amendment case referenced by Sonnick). It is the entry to a cause of action that can be brought under Bivens, not the cause of action itself. I most likely am completely wrong on this, so hopefully someone will explain it better.

    I too had not seen scribe's analysis, which is similar, but much better than my attempt. Darn internets.

    Re: The Timing of the Wilsons' Lawsuit in PlameGat (none / 0) (#8)
    by jimcee on Thu Jul 13, 2006 at 08:30:54 PM EST
    Besides extending the false hopes of those who no longer believe in 'Fitzmas' and those who are keeping the Wilson/Plame names in the news there is little hope that this case will ever see the light of day. Timing was mentioned and that makes sense because when the courts start hearing this case it will coincide with the 2006 election cycle. This is nothing more than Joe Wilson and the Mrs' campaign contribution to Democrats. Afterall Ol'Joe Wilson was a Kerry partisan in the last election cycle so why not keep up the PR campaign and continue to hang on to thier Vanity Fair noteriety by thier well-manicured fingertips. Somehow I do not think that history is going to treat this couple very well...but time will tell.

    Was watching the re-broadcast of Olbermann at 11 p.m. Central (July 13): John Dean gives a lot of credibility to the Wilsons' lawsuit; Lawrence O'Donnell does not. Figure Dean's the better trial attorney; O'Donnell's spent most of his last few years being a party loyalist, general purpose hack, and television producer. Any thoughts? Always fun to watch Countdown on MSNBC right after Daily Show and Colbert Report on Comedy Central.

    Re: The Timing of the Wilsons' Lawsuit in PlameGat (none / 0) (#10)
    by Sailor on Thu Jul 13, 2006 at 10:16:20 PM EST
    AbjectFunk, yep, those tubes will let you down every time;-)

    Re: The Timing of the Wilsons' Lawsuit in PlameGat (none / 0) (#11)
    by Che's Lounge on Thu Jul 13, 2006 at 11:01:19 PM EST
    They're clogged with porn.

    I want to second what AbjectFunk says. This blog should be available for credit in a layman's law degree. Thank you all, and more of that please? Many law bloggers speak only to other lawyers. Some very strange law professor bloggers avoid issues of the law preferring to blog about reality tv shows or what gets their hate on that morning. The best law bloggers understand that perhaps their most valuable contribution can be to discuss the law with interested layman. Really, I think I need to state that again. Because of the costs involved, the world of law is very much separated and hidden away from the average citizen. You are doing a wonderful thing by helping to bring the two worlds back into communication. This is not meant too flatter you, just meant to say thank you, and encourage you.

    Re: The Timing of the Wilsons' Lawsuit in PlameGat (none / 0) (#14)
    by Aaron on Fri Jul 14, 2006 at 08:16:51 AM EST
    I suspect that the lawsuit may be akin to the Paula Jones case - largely funded by those more interested in taking depositions and setting perjury traps than in obtaining a monetary judgment or settlement.

    On further review it looks as if 42 U.S.C. 1985(3) includes 42 U.S.C. 1985(1): in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators." I wonder if what they are after in alleging violation of this Code section is the Equal Protection violation, with the expectation that this will eviscerate any qualified immunity claims, as provided for in the case law?

    BUTZ v. ECONOMOU, 438 U.S. 478 (1978) 1. Neither Barr v. Matteo, 360 U.S. 564, nor Spalding v. Vilas, 161 U.S. 483, supports petitioners' contention that all of the federal officials sued in this case are absolutely immune from any liability for damages even if in the course of enforcing the relevant statutes they infringed respondent's constitutional rights and even if the violation was knowing and deliberate. Nor did either of those cases purport to abolish the liability of federal officers for actions manifestly beyond their line of duty; if they are accountable when they stray beyond the plain limits of their statutory authority, it would be incongruous to hold that they may nevertheless willfully or knowingly violate constitutional rights without fear of liability. Pp. 485-496. [link deleted, must be in html format, instructions are in comment box] Interesting stuff on the immunity issue.

    The complaint's Sixth Cause of Action stated in paragraphs 64-72 includes a 5th Amendment claim based on statutory rights developed in 42 U.S.C. 1985(3): (3) Depriving persons of rights or privileges [link deleted, not in html format, instructions are in comment box] I have no idea how broadly the terms of this code section are construed, but on its face it looks as if 42 U.S.C. 1985)(1) might be more applicable to the facts of this case. Sec. 1985. Conspiracy to interfere with civil rights (1) Preventing officer from performing duties

    Re: The Timing of the Wilsons' Lawsuit in PlameGat (none / 0) (#17)
    by scribe on Fri Jul 14, 2006 at 09:23:46 AM EST
    Plame retired after serving 20 years. As the article says:
    "She did not have a career left," said Larry C. Johnson, a former CIA officer and a friend of Plame since the two were in the same agency training class in the 1980s. "She was no longer able to work as a clandestine officer, which was her reason for being." Johnson said that although Plame still had allies at the agency, her ability to function effectively was irreparably harmed after her status became publicly known. "She is either a non-entity or radioactive," Johnson said. "Getting connected with her is not something that is going to enhance your career. She has been something of a leper." Plame has been with the CIA for 20 years; the decision to leave makes her eligible to collect retirement benefits in the future, Johnson said. Her effective retirement date will be in January, but her last day at work will be Friday.
    In so many words, they pretty much (i.e., by analogy - I have no knowledge of exactly what her duties were....) put her in a room with no phone and no computer and gave her nothing to do all day. A forced retirement, just like a forced resignation, can support a suit.

    I think the most important event here is that unlike with Fitz, the prosecuting attorney is not on the defendants' payroll. As long as plaintiffs survive a Motion to Dismiss based on 1) powers of a king at war; or 2) illusory matters of national security, the case will proceed to the discovery phase. Can you imagine what the discovery requests will look like? To Mr. Cheny: Please provide all documents relating to the forged yellowcake papers planted at the Niger embassy in Rome." This could be a lot of fun.

    Re: The Timing of the Wilsons' Lawsuit in PlameGat (none / 0) (#20)
    by beefeater on Fri Jul 14, 2006 at 11:26:55 AM EST
    Could the timing of the lawsuit have anything to do with the 2.5 million book deal Wilson just got?

    Re: The Timing of the Wilsons' Lawsuit in PlameGat (none / 0) (#22)
    by squeaky on Fri Jul 14, 2006 at 11:47:12 AM EST
    Beefeater-of course you know that the timing has to do with Statutes of Limitation. It is always amusing to see wingers complain about free market strategies and someone trying to make a buck. Especially when it is someone who is richer, more patriotic, and has paid more dues in the service of their country than they have, or could even imagine. BTW-Some make tons of dough incidental to their task. The money is just a byproduct of their efforts and not the goal. Hard to imagine Beefeater, huh?

    Re: The Timing of the Wilsons' Lawsuit in PlameGat (none / 0) (#21)
    by beefeater on Fri Jul 14, 2006 at 12:06:39 PM EST
    Oops, 1st book deal falls apart, negotiating new one, maybe needed more pub. link

    Re: The Timing of the Wilsons' Lawsuit in PlameGat (none / 0) (#23)
    by beefeater on Fri Jul 14, 2006 at 12:21:02 PM EST
    I'm just commenting on the speculation for the timing of the suit. I don't care If they get a book advance or not. It's the American way for cripes sake, more power to them. It wouldn't bother me if They set up a webite to ask for donations to a legal defense fund either. Free country and all that.

    Re: The Timing of the Wilsons' Lawsuit in PlameGat (none / 0) (#24)
    by beefeater on Fri Jul 14, 2006 at 12:28:43 PM EST
    See! I don't care. Go for it. Donate all you want.

    Re: The Timing of the Wilsons' Lawsuit in PlameGat (none / 0) (#25)
    by Sailor on Fri Jul 14, 2006 at 12:31:10 PM EST
    The man is legendarily cuckoo
    And it's not a matter of doing my homework, it's a matter having facts to back up your rants, and you still have no proof that Johnson is crazy, yet you keep asserting it. bush?, now he's crazy, he attacked a country that had nothing to do with 9/11 and greatly increased terrorism in the world by doing so. Afghanistan is increasingly being taken over by the taliban, has record poppy production, iraq is in civil war, the whole middle east is gmore unstable and where's OBL? And you should follow our host's rules and format your links.

    Re: The Timing of the Wilsons' Lawsuit in PlameGat (none / 0) (#26)
    by beefeater on Fri Jul 14, 2006 at 12:35:02 PM EST
    Plame is arguing that her property (future earnings, reputation, well-being, job, etc.) were deprived of her
    The $2.5 million book deal that Valerie Plame Wilson, the former Central Intelligence Agency officer whose identity was publicly disclosed three years ago, negotiated with Crown Publishing Group last month has fallen through. Ms. Wilson, who could not agree on terms with Crown, is now in exclusive negotiations with Simon & Schuster, which originally had lost an auction for the book to Crown.
    While she walked away from the 2.5 million, she will almost cetainly get a payday that will far outstrip her lost CIA earnings. Where is the finacial damage? The CIA didn't terminate her did they? When and how did her CIA job end?

    So, there must be a three year statute of limitations lurking somewhere. . . . It's not that easy to determine.
    When you're filing a civil suit, ordinarily you don't due an elaborate analysis of when the limitations period expires--you file before the first posssible date at which it arguably expired. So, just thhe notion thhat there might be a 3-year statute lurking somewhere should have been enough to motivate the Plame-Wilsons and their attorney to file.

    without getting into whether plame and wilson are grasping at straws or real patriots, i want to echo many of the sentiments on this thread, that talkleft does the best job in blogtopia (yes! i coined that phrase!) in interpreting complex legal issues for the interested layman and woman.

    Re: The Timing of the Wilsons' Lawsuit in PlameGat (none / 0) (#30)
    by Sailor on Fri Jul 14, 2006 at 02:41:53 PM EST
    PBR, before you post again I recommend you read this. And I don't think his comments, which you took completely out of context, show dementia, but an understandable anger in respond to wrongwinger trolls. The same language runs thru my head everytime I see ppj claim that saddam and 9/11 were connected, but this site is maintained as SFW, (just like my site is.)

    Re: The Timing of the Wilsons' Lawsuit in PlameGat (none / 0) (#19)
    by Sailor on Fri Jul 14, 2006 at 03:15:34 PM EST
    or did you mean this Larry Johnson:
    From 1989 until October 1993, Larry Johnson served as a Deputy Director in the U.S. State Department's Office of Counter Terrorism. He managed crisis response operations for terrorist incidents throughout the world and he helped organize and direct the US Government's debriefing of US citizens held in Kuwait and Iraq, which provided vital intelligence on Iraqi operations following the 1990 invasion of Kuwait. Mr. Johnson also participated in the investigation of the terrorist bombing of Pan Am 103. Under Mr. Johnson's leadership the U.S. airlines and pilots agreed to match the US Government's two million-dollar reward.
    From 1985 through September 1989 Mr. Johnson worked for the Central Intelligence Agency. During his distinguished career, he received training in paramilitary operations, worked in the Directorate of Operations, served in the CIA's Operation's Center, and established himself as a prolific analyst in the Directorate of Intelligence. In his final year with the CIA he received two Exceptional Performance Awards.
    Mr. Johnson is a member of the American Society for Industrial Security. He taught at The American University's School of International Service (1979-1983) while working on a Ph.D. in political science. He has a M.S. degree in Community Development from the University of Missouri (1978), where he also received his B.S. degree in Sociology, graduating Cum Laude and Phi Beta Kappa in 1976.


    Thank you.

    Re: The Timing of the Wilsons' Lawsuit in PlameGat (none / 0) (#32)
    by Che's Lounge on Sat Jul 15, 2006 at 07:34:15 AM EST
    Let's see. Who has more credibility? Valerie Plame or Paula Jones? Nothing is more entertaining than watching rightards squirm when I asK that question. The tables are turned and now the lawsuits are politically motivated. Bwahahahahahahaha!

    Re: The Timing of the Wilsons' Lawsuit in PlameGat (none / 0) (#33)
    by LibraryLady on Sat Jul 15, 2006 at 10:20:36 AM EST
    You mean the Larry Johnson who said this? Oh yeah, I would really respect anything HE said...
    Karl [Rove] is a shameless b* stard. Small wonder his mother killed herself. Once she discovered what a despicable soul she had spawned she apparently saw no other way out.


    Posted by Che's Lounge July 15, 2006 08:34 AM Let's see. Who has more credibility? Valerie Plame or Paula Jones? Nothing is more entertaining than watching rightards squirm when I asK that question. The tables are turned and now the lawsuits are politically motivated. Bwahahahahahahaha!
    Are you suggesting that a lack of social standing equals a lack of credibility? I guess you don't believe the Duke stripper story.