A lawsuit alleging high level conspiracy in the Bush administration has been filed in Fairfax County Circuit Court.
The lawsuit is filed by former Special Counsel Scott Bloch who was allegedly forced out of his position in the waning days of the Bush administration. This matter is significant due to the Defendants listed such as Karl Rove and former Congressman Tom Davis, but also because of its allegations. Most importantly, for purposes of my coverage, it was filed in my neck of the woods where I can get access to the files as the case progresses. Coverage of this lawsuit so far can be found here and here.
The Plaintiffs in the case are Scott Bloch and his wife Catherine Bloch. The Defendants include, among others, the "Executive Office of the President," Thomas Davis, Jr., Karl Rove, Human Rights Campaign, POGO (Project on Government Oversight?), GAP (Government Accountability Project?), PEER (Public Employees for Environmental Responsibility?), and numerous other governmental officials and private sector people active in government. What is interesting about the people involved, is that according to the Complaint each of them played a specific role in the case, and there appears to be a basis for their inclusion. This means that if the lawsuit progresses we should expect to see some interesting unprivileged documents from some high profile politicos.
Complaints are often broken into "Counts" where particular causes of action are delineated. Significant effort has been placed into making this Complaint fact intensive and detailed, so as to avoid early dismissal. There appear to be Counts I-XIII listed although Count XI appears to be missing so there are only 12 Counts.
Count I: Deprivation of property rights without just compensation: This is a Federal cause of action under the 5th Amendment of the U.S. Constitution. This amendment is often called the “takings” clause. The property right allegedly taken is the remainder of Mr. Bloch’s five year term (with one year extension) as Special Counsel. The letter and spirit of the takings clause appears to apply primarily to physical property such as real property and tangible property. Nonetheless, I could see an argument that the Fifth Amendment applies to contractual rights.
Count II: Declaratory Judgment and Injunction: In this Count Mr. Bloch seeks a declaration that the actions of the Defendants were wrongful, a writ of mandamus requiring public officials to cease ongoing investigations, and a mandatory injunction requiring an independent prosecutor to prosecute the Defendants.
This is some of what I do for a living so seeing it all jumbled up is a little frustrating. A writ of mandamus against federal officials should be sought in federal and not state court. The declaratory judgment is fine, although it is part of some of the other causes of action and therefore should not stand as an independent cause of action. The injunction requiring investigation and prosecution appears to not be a proper civil remedy. Perhaps there is something I do not know.
Count III: Violation of the separation of powers: This appears to be a legitimate separate declaratory judgment action that the other parties are violating the Constitution, that the Court should declare that the Defendants are violating the Constitution, and that they should be enjoined from violating the Constitution. The remedies desired are sought within other Counts.
Count IV: Violation of the Privacy Act 5 U.S.C. § 552a: This may very well state a proper cause of action. I am unfamiliar with the Privacy Act.
Count V: RICO and Virginia criminal conspiracy to harm in trade or business: RICO is used to prosecute criminal conspiracies particularly as conducted as organized crime. The Virginia criminal conspiracy statutes have significant shortcomings worthy of its own post, but nonetheless they do provide a cause of action. The allegations of this Count appear reasonably well presented.
Count VI: Violation of 42 U.S.C. § 1985: This statute is designed to prevent people from conspiring to prevent people from performing their official duties on behalf of the U.S. government. The allegations of this Count appear reasonably well presented.
Count VII: Bivens Action: This is a federal cause of action for violation of Constitutional rights under color of Federal law. There are treatises on this type of action that cannot be summarized in a few short sentences. The allegations of this Count appear reasonably well presented.
Count VIII: Civil Conspiracy: This is the heart of the Complaint, is a state law claim, and the allegations of this Count appear reasonably well presented.
Count IX: Libel/defamation: There is a one year statute of limitations for these claims. Everyone has been defamed at some point, rarely does it rise to the level that it is worthy of a lawsuit. The allegations of this Count appear reasonably well presented.
Count X: Whistleblower retaliation: I honestly do not know enough about this cause of action to analyze.
Count XI: Skipped.
Count XII: Claims against the Office of Special Counsel: Perhaps I am missing something, but this seems like a rehash of previous Counts.
Count XIII: Writ of Mandate: I have read this section and can not explain it. I know of no civil cause of action to require a matter be referred to the Attorney General of Virginia.
$100 million in compensatory damages.
$100 million in punitive damages. (limited by Virginia law)
$2 million in out of pocket expenses.
Why file in Fairfax County?
I do not know. Most of the Complaint contains Federal causes of action. The Defendants will likely remove the case to Federal Court in Alexandria. Until it is removed I will do my best to follow the case and relate the proceedings, especially if national figures become involved. One reason to file in state court is that it moves slower than the Federal Court in Alexandria. Unfortunately for the Plaintiff, Fairfax County Circuit Court takes great pride in moving very quickly as well.
Status of the case
The Complaint appears unfinished. There are blanks on pages 14, 16, 18, 20, and 33 all of which suggest that this was not the final version of the Complaint. Even though it was filed on April 26, it is the only item filed in the case. Service has not been sought. There are a few good reasons to file and not seek service: 1. you want to preserve the statute of limitations while you gather more information; 2. you are not sure if you wish to proceed; 3. some other reason known only to the filing party. It does not appear as of May 16, 2011 that the Plaintiffs are ready to push this matter. If they do, I hope it stays local.