United States District Court, E.D. Virginia, Alexandria Division
O'Grady United Slates District Judge
Chesser, also known as Abu Talhah, a federal inmate
proceeding pro se, filed a civil rights action pursuant to
Bivens v. Six Unknown Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), the Foreign Intelligence
Surveillance Act, and the Privacy Act. Dkt. No. 1. Plaintiff
alleged that various federal officials conspired with his
mother regarding the custody proceedings for his son.
Id. By Order dated February 14, 2013, plaintiffs
complaint was dismissed as frivolous, pursuant to 28 U.S.C.
§ 1915A(b)(1). Dkt. No. 6.
appealed and on May 1, 2015, the United States Court of
Appeals for the Fourth Circuit affirmed in part and remanded
in part. Appeal No. 13-7239. The Fourth Circuit remanded the
matter to allow plaintiff to submit "an amended
complaint raising only a Privacy Act claim against the FBI
and Secret Service." Id.
23, 2015, the court received plaintiffs second amended
complaint in which he asserted Privacy Act claims against the
United States Secret Service ("USSS") and the
Federal Bureau of Investigation
("FBI"). Dkt. No. 52. Defendants have filed a
Motion to Dismiss and Motion for Summary Judgment, as well as
memoranda of law with supporting exhibits. Dkt. Nos. 78-80.
Plaintiff was given the Notice required by Local Rule 7(K)
and the opportunity to file responsive materials pursuant to
Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975).
After having been granted an extension of time to respond,
plaintiff filed a Response to Defendants' Motion to
Dismiss. Dkt. No. 95. After receiving an extension of time to
file, defendants filed a Reply Memorandum in Support of
Defendants' Motion to Dismiss and Motion for Summary
Judgment. Dkt. Nos. 100-101. This matter is now ripe for
Motion to Dismiss
allegations, which will be taken as true for purposes of the
Motion to Dismiss, are as follow. Plaintiff is currently an
incarcerated federal inmate. SAC at ¶ 6. He is married
to Proscovia Nzabanita ("Proscovia") and together
they have a child, T.C. Id. at ¶ 9. Plaintiffs
mother is Barbara Chesser ("Barbara") and
Proscovia's mother is Cecilia Nzabanita
was arrested in July 2010, and charged with providing
material support to terrorists. Id. at ¶ 15.
Both before and after his arrest, the FBI monitored
plaintiffs and Proscovia's communications. Id.
at ¶¶ 40-46. On October 20, 2010, plaintiff pled
guilty because he was afraid that his son would not be raised
as a Muslim if his wife were imprisoned. Id. at
¶¶ 17-18. Plaintiff was sentenced to 300 months in
prison on February 24, 2011. Id. at ¶ 21.
pled guilty to making false statements to federal officials
on November 8, 2010, and as part of her plea deal she agreed
to relinquish her legal status in the United States and to
leave the country by March 8, 2011. Id. at
asserts six counts of violations of the Privacy Act.
Count One - January 19, 2011 Email from Agent Menges to
to ___, plaintiff and Proscovia planned to send T.C. to
Jordan on January 19, 2011, with a friend, to demonstrate
that T.C. would be safe, regardless of what happened to
Proscovia, and "to ensure that he would be with Muslims
in a worst case scenario." SAC at ¶¶ 47-50. On
January 18, 2011, FBI Agents Hersem and Piro wrote a
memorandum to an assistant United States Attorney regarding
plaintiffs and Proscovia's plan. PI. Opp. to MTD/MSJ at
Ex. A. The agents wrote that the FBI believed neither
plaintiff nor Proscovia had violated any laws, but that,
because of ____both plaintiff and Proscovia could be in
danger of being charged with violating a court order or state
law in the future, which would be a violation of their plea
deals. Id. The next day, FBI Agent Menges emailed a
copy of this memorandum to Barbara's attorney.
Id. at Ex. B. The email also stated that a copy of
the memorandum was sent to plaintiff and Proscovia "by
way of their known attorneys." Id. This
disclosure of a record stored in an FBI system of records was
willful and intentional, and caused plaintiff to spend money
fighting evidence from the disclosure in child custody
proceedings and in mitigating its harm to him in the public.
SAC at ¶¶ 56-64.
Count Two - January 19, 2011 Phone Call from Agent Kirgan to
January 19, 2011, FBI Agents Kirgan and Menges, as well as
unknown U.S. Marshals and New York City Police Department
officers, intercepted T.C. and plaintiffs friend at JFK
Airport, refusing to allow them to leave for Jordan.
Id. at ¶ 65-66. During this time, Agent Kirgan
and another unknown FBI agent called Barbara to inform her of
plaintiff s and Proscovia's plan to send T.C. to Jordan.
Id. at ¶ 67-68. The events that took place at
the airport were documented in records after the incident.
Id. at ¶ 71. The disclosure of this information
was willful and intentional, and caused plaintiff to spend
money fighting the use of information from the disclosure in
child custody proceedings and in mitigating its harm to him
in the public. Id. at ¶¶ 74-75. Barbara
and her attorney have also used this information to try to
have Proscovia and T.C.'s Jordanian visas revoked, which
would have forced them to go to Uganda where Proscovia's
life is in danger. Id. at ¶¶ 76-77. The
Jordanian government interrogated Proscovia, kicked her out
of the university she was attending, and ordered her to leave
the country while attempting to arrest her. Id. at
¶¶ 78-80. Proscovia was a fugitive for a month
until she was declared a refugee by the United Nations;
however, she is unable to work in Jordan and lives off
assistance from the United Nations and others. Id.
at ¶¶ 81-82. Because of Proscovia's limited
ability to work, she is no longer able to send money to
support plaintiff. Id. at ¶¶ 83-84.
Count Three - July 12, 2011 Phone Call Between Agent Kinder
12, 2011, FBI Agent Kinder allegedly called Barbara to inform
her that (1) plaintiff and Proscovia planned to send T.C. to
Jordan with Cecilia so that T.C. could be with Proscovia, and
(2) T.C. had been attending a mosque and wearing Islamic
clothing while in Cecilia's care. Id. at ¶
87-90. This disclosure of information contained in FBI
records was based on plaintiffs communications and the
surveillance of Proscovia. Id. at ¶¶
95-96, 98-99. Plaintiff learned of this disclosure based on
testimony from the custody proceedings. Id. at
¶ 97. Plaintiff claims the disclosure of this
information was willful and intentional, and caused plaintiff
to spend money fighting the use of this information in child
custody proceedings and in mitigating its harm to him in the
public. Id. at ¶¶ 100-102.
Count Four - December 2011 Phone Call Between Agent Kinder