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[This morning's guest post from Attaturk is a huge favor for me, and one for which I am most grateful.  Bivens claims -- of which the Wilson complaint is one -- is a special sort of civil rights claim in federal civil cases.  Having never moved a Bivens claim forward in my legal career, I've been giving myself a sort of mini-continuing legal education seminar on the Bivens case, and all the surrounding case law, and trying to get some understanding on how this may or may not play out in federal court. 

It turns out that not only is Attaturk a first-class snarky smartass (you may know him from Rising Hegemon), but he's also a great attorney who has, in fact, worked with a number of Bivens claims, and has graciously consented to doing a sort of primer for everyone (inlcuding me) on the subject.  It is worth saying, again, this morning that the opinions contained herein are for analysis purposes only in a general sense.  If the Vice President and White House minions have outed your spouse as a covert CIA operative (or you have had any other problem with a government official acting in a potentially malicious way), you should consult an attorney in your own jurisdiction and talk with them about your own set of facts -- this, in no way, should be considered to be legal advice that applies in any way to any case at all whatsoever, other than to give us all a general understanding of how a Bivens claim might play out for the Wilsons at some point in the future.  (There, that's enough legalese for this morning...on with the post.)  Huge thanks to Attaturk for doing this for me on short notice -- what a peach!  -- CHS]

Christy, knowing that there is nothing — absolutely nothing — better than a "bus drivers holiday" has asked me to write so some real general stuff on the type of action filed on Thursday by Joe & Valerie Wilson against the Craven Triumvirate (Cheney, Rove, Libby) and a whole chorus of mysterious potential douchebags, I mean, defendants.

It’s a bus driver’s holiday because while most of you, okay many, alright some, know me as a blogger of occasional snark — too clever by half (I disagree, I’m too clever by 2/3rds at least!), I am in reality a lawyer with some experience in these types of claims. I’m hardly the ultimate authority on such topics — but I’ve tried a few and that is probably worth something.

I know it sounds strange, but it hasn’t always been clear you could even sue the government, let alone the federal government. It became clearer in the halcyon days of the Warren Court when an old Civil War Statute that somehow had not be overturned 42 U.S.C. §1983 was found to give you, yes you, Mr. & Ms. American a right to sue the police officer that had abused you, or even the (government employed) boss that kept you from taking part in politics.

The catch was that §1983 only applied to "state actors" — which came to mean pretty much any government official that did not work for the Federal Government. However, there was until 1971 no right to sue a Federal official for their acts was clearly enunciated.

In a case involving the violation of the 4th Amendment the analogy of §1983 was extended in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971)[I'm not giving full legal cites "screw you bluebook!" - just to piss off the man!].

Bivens contained more than just a logical clarification; it contained a new and novel expansion of the power of citizens against the government. And this is something quite important to Joe & Valerie Wilson’s case. It ruled explicitly that the Constitution itself, not just statutes or regulations, provided an actionable right to a citizen when that right is violated. This was quite novel, in that most statutes that enable you to go to court have some reference to remedies – there is obviously nothing in the Constitition that contains anything other than debatably a non-monetary remedy. Bivens created the right to sue, it also said in effect "apply traditional tort remedies". So you can sue under the 1st, the 4th, the 5th, or the 8th Amendments for lost wages, pain and suffering, emotional harm, and even to some extent punitive damages (there are some restrictions on these that, but that’s for another time). From their suit it is the First and Fifth Amendment the Wilson’s rely upon, that government officials cannot retaliate against an individual exercising First Amendment rights. Crawford-El v. Britton, 523 U.S. 574. Whether it applies in the context that they are asserting it applies is another matter.

Bivens has been clarified and restrained over the years by the Court. However, it is still good law, which even Scalia, Thomas, and Alito recognize. However, it is fairly clear what it allows, and that is suits only against individual actors, not governmental agencies. FDIC v. Meyer, 510 U.S. 471 (1994).

Institutional Difficulties of Constitutional Torts:

One of the real joys of doing these type of cases are all the immunities — all of which have been carried over to the United States from "the mother country" (thanks Blackstone, thanks so effing much!). We bend over backward with immunities in the land of the free. We are not alone, of course, in that doctrine, but still I think most every society is a little too rigid about it. There are three immunities involved in Constitutional Torts that I will address; Sovereign Immunity, and then two types of individual immunities Absolute and Qualified.

Sovereign Immunity basically saves the government’s ass from being sued for money, unless they allow themselves to be so sued by statute. For an example to see how we take it too far. Conservatives are always on about the plain text of the Constitution being paramount. Try reading the 11th Amendment sometime and tell me how it keeps me as a citizen from suing my state for damages — as the Court long ago ruled. You’ll be looking a long time. Protecting the government as a doctrine is older than the Constitution and it will long survive it.

Absolute Immunity: This means you cannot sue a governmental official for doing what they were either elected or appointed to do (Executive, Parliamentary and Judicial Immunity). For the executive branch this sort of becomes like the original form of "Sovereign Immunity", where you cannot sue the King. Cheney is being sued, individually, for actions he did while he was Vice-President. Is he a wanker? Oh most definitely — but can he as Vice President be sued for actions he took as Vice President for damages in civil court? While it is true that there is a significant functional difference between the President and the Vice-President (just pretend that Cheney is not really in charge), I kind of doubt courts will view a Constitutional Officer as not having that kind of strong immunity.

I have to say, as much as I dislike Dick Cheney it seems a really hard argument for the Wilsons’ to make. He is in effect, as far as the law is concerned, as protected as the King was all those years ago in British Civil Courts (we’re not talking criminal court).

Yes, Clinton v. Jones is out there, but that case involved what Clinton did before he was President (though he was Governor) — and by the time the Federal System was involved it was really about the process of allowing the suit to go forward. I don’t really think it applies in this case. I think Cheney will likely benefit from his Absolute Immunity from suit for actions undertaken while he was Vice-President. That is what Impeachment proceedings are supposed to be for (emphasis on "supposed to be").

Qualified Immunity: And now we get to the interesting stuff. Being unelected and being non-judges, Rove and Libby do not get the benefit of that sweet "Absolute Immunity" doctrine. They perform what are called discretionary tasks (put simply, nobody elected or ratified their selection to shit). Rather, they get "Qualified Immunity" meaning that they too cannot be sued unless the official’s "actions could reasonably have been thought consistent with the rights they are alleged to have violated." Anderson v. Creighton, 483. U.S. 635 (1987). In that regard, the Court stated the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.

In short:

(1) Was the law governing the official’s conduct clearly established?

(2) Under that law, could a reasonable officer have believed the conduct was lawful?"

I think now would be a time to take a break and consider just how awesomely exciting this all is.

…go on…

…you can do it…

Okay, back to the mundanity!

These immunities will come up in what happens first in the Wilsons’ case. A pre-Answer Motion to Dismiss filed by the three named defendants.

But will they win?

No matter how I look at it, I just cannot see Big Time making it to the discovery phase. I know that sucks, I join you in "wishing" that wasn’t true, but sometimes the law wins out over what we desire (and in my line of business that happens a depressing amount of time). I just cannot see a court allowing a civil suit against a sitting Vice President for acts he committed while he was Vice-President. I foresee no "Cheney Exception", much as we might want one.

Now, as for Libby and Rove, that gets a lot more interesting, and I think there’s a good shot they’ll be around for a while.

If you look at the pleadings "(1) Was the law governing the official’s conduct clearly established? (2) Under that law, could a reasonable officer have believed the conduct was lawful?"

If you look at the Actual Complaint, here, pay particular attention to Paragraphs 18, 19-21 and then 27 through 29 you will see the basis by which the Wilson’s will set those out.

Judging the strength of a case is dangerous business, but I can say that I have filed, and won, Motions to Dismiss with less evidence in a Bivens case then is present here.

I’m not going to go into each of the claims, because I really, really don’t like voluntarily agreeing to give lengthy legal opinions for free. Nothing personal.

Now, if you’ll excuse me I’ll get back to my normal bloggy blog, where I engage in more lofty intellectual pursuits. Like fake Larry King columns, K-Lo and Jonah Goldberg abuse, and other various comedy failures.