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July 13, 2006



To reply to my own post in the last article's comments...The snippet above is where I read about the statute of limitations thingy :)

Indeed, you called it. The Wilsons would benefit from having you on their legal team, IMHO.

And, it's been filed. See here. Pretty much tracks what I mooted out. Count 1 is a First Amendment retaliation claim based on Bivens. Count 2 is a Bivens claim under the Equal Protection Clause -- a real stretch if you ask me. Count 3 is a Fifth Amendment privacy claim. Count 4 is a deprivation of property without due process claim -- which theoretically would probably be subsumed within the First amendment claim for reasons I won't go into just now. Count 5 is a claim of conspiracy to commit the Counts 1-4 civil rights violations. Count 6 is an oddly worded "neglect to prevent civil rights violation" claim, which appears to be largely a reiteratin of the conspiracy claim, and Count 7 is a common-law invasion of privacy claim, based presumably on DC law.

They filed in DC federal court, as I suggested would be best. They drew Judge Bates -- not the best news for them. He's a conservative Bush appointee.

The defense will doubtless file a motion to dismiss and seek to stay any discovery. On the federal claims, I think they willhave serious problems establsihing that there is or should be an implied Bivens cause of action. But they've got a heavy hitter as "of counsel" -- professor Erwin Chemerinsky, a great linberal and a federal jurisdiction god.
I'm afraid that the DC law invasion of privacy claim is time-barred; I think that one has a two-year statute. If I'm right, I don't know what they're thinking. I don't think that they have any good tolling arguments, and not only that but DC law is such that if you plead an invasion of privacy tort along with another one with a longer limitations period, and the claims are "intertwined," you can get stuck with the shorter limitations period for both.
I'm alsoat a loss as to why they didn't throw in a garden-variety tort like intentional infliction of emotional distress claim. It's definitely got a 3-year limitations period and provides another arrow in the quiver. Odd.

I'm no lawyer, but there might be some legal reason for him to make a statement before they filed?

So did he get a heads up about the Wilson's plans, or did the Wilson's, Rove, and Novak all get some notice from or about Fitz's investigation recently?

Ah-HAH. I was skimming too fast and remembering too little of the basic federal civil rights statutes. The strange "neglect to prevent civil rights violation count" the Wilsons have pleaded that the defendants fraudently concealed the true nature of what they were doing through, among other things, false testimony. While this is makes out an independent civil rights violation under Section 1986, it also might be a pre-emptive strike at a statute of limitations defense, inasmuch as fraudulent concealment of th facts that would give rise to knowledge of a wrong is a defense to the statute.

I also neglected to mention a COunt 8 civil conspiracy claim.

This should get very interesting.

Novak's lawyers knew that this would be the week for Wilsons to file. Also Fitz might have timed it too, by releasig Novak just in time for Wilsons to file. Sounds like Fitz is clearing his desk. But Sebastian's comments above worry me. If the two year limitation of DC law overtakes the 3-yr federal law, there is no case. Antoehr worry - they drew a right wing judge. On FDL, someone commented that Judge Bates was a counsel on whitewater and he as judge was the one that threw out GAO's case against Cheney on energy task force papers.

champagne for EW ;-)

ecoast -- I should clarify. I'm not sure whether the statute of limiations for the DC law claim can, through the "intertwining" doctrine, affect the statute of limitations for the federal claims. If the Wilsons pleaded other DC-law claims based on the same facts and essentially seeking the same kind of recovery for the same kind of wrong, then the SOL for the principla DC law claim would control. (Thus, if there is a DC-law privacy claim and a DC law intentional infliction claim, likely the privacy claim SOL would apply.) Whether it would affect the federal claims is a complicated question. There is no federal SOL on the Bivens claims -- so what happens is that the court "borrows" the SOL from the state inwhich it sits -- DC. Technically in a weird ontological fiction, the SOL is not really state law but federal law. With the SOL comes also some other things like tolling doctrines. Although accrual of the cause of action (i.e., when the SOL clock starts ticking) is governed by federal common law. (Confused yet?) Now, the question would be whether the federal claims are governed by the whole ponoply of DC doctrines concerning limitations -- including the "intertwining" business. I don't think it's clear (and it's a good thing they'll have Chemerinsky on the briefs -- these are tricky federal courts issues). If it does, it's not certain that the shorter period would swallow the longer one -- that is the three year period (borrowed from DC's "residual SOL" proviso) might subsume the shorter privacy SOL. Like I say, it's tricky.

Further caveat: I'm working on the assumption -- that I think is right -- that the DC courts treat invasion of privacy as essentially a defamation type tort governed by the defamation SOL.

And correction: The DC defamation SOL is actually 1 year.

Enough arcana for now. I'm off to do some yoga.

Christy Hardin Smith says:
July 13th, 2006 at 1:45 pm
".....my understanding was that the Wilson’s had a two-pronged concern: (1) not interfering with the investigation, until it had been mostly completed and (2) making certain that they had not gone past the filing deadline for the statute of limitations in their jurisdiction. I think that (2) came before (1), and required filing. And, as of the Libby indictment, a lot of the case had been tied up, other than the few strings that had been left hanging. I’ve been hearing murmurs that a lot of those strings are no longer such loose ends, but nothing beyond the strictly rumor mill variety, which is why we hadn’t reported anything on it as yet. I’m wondering if Joe and Valerie have been hearing the same, and decided to file before the statue of limitations barred them from doing so. I’d say that is fairly likely, actually, but I haven’t spoken with Amb. Wilson today to verify it. (As he is likely quite busy, I won’t be bothering him with it this evening, either. *g*)

Wanted: detail oriented plameaholics to keep the dkosopedia Plame Leak timeline up to date. It has not had any attention since the terrible events of June 27, 2006.

You need a separate account at dkosopedia. Comfort with assigned special meanings to brackets and asterisks and equal signs required.

Plunking in the announcement of the filing of a lawsuit against Libby, Cheney and Rove as your first entry? How fun!

I’ve been hearing murmurs that a lot of those strings are no longer such loose ends, but nothing beyond the strictly rumor mill variety, which is why we hadn’t reported anything on it as yet.

Could you elaborate, even a bit? Thanks.

Carl W

Those murmurs are from Christy at FDL, not me. She's more tied into the rumors around DC and the legal community; I just work off paper in my isolated little office.

Thanks. Hope yours isn't a basement like mine. Gets mighty dull.

Nope. Used to be. Now it's got a south facing window, just two doors down from my bedroom. Got a nice doggie here, too, to keep my feet warm in the winter.

Thanks again and be well. The knowledge that you and the other bloggers have of this whole topic is astounding. Let's just hope Fitz gets to Cheney.

EW - Nice call - Right on

One personal note - I have done a lot of expert witness work over the last thirty years with many 'prominent' (white shoe and other) law firms nationwide and the best litigators I ever worked with were out of the NYC office of the Proskauer firm.

I think the Wilsons will be more than adequately represented.


Hm.. Quite interesting read actually, thanks for the good read! :)

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