United States District Court, E.D. Virginia, Alexandria Division
MEMORANDUM OPINION
LEONIE
M. BRINKEMA, UNITED STATES DISTRICT JUDGE
Before
the Court is defendants Eric Holder ("Holder") and
Patrick Donahoe's ("Donahoe") (collectively,
"defendants") Motion to Dismiss, in which they
argue that all eight counts in the Complaint should be
dismissed under Fed.R.Civ.P. 12(b)(1) or 12(b)(6) or, in the
alternative, on the basis of qualified immunity. For the
reasons that follow, Count 4 will be dismissed under Rule
12(b)(6) as to all defendants, Counts 7 and 8 will be
dismissed under Rule 12(b)(1) as to all defendants, and
Counts 1-3 and 5-6 will be dismissed under Rule 12(b)(6) only
as to defendants Holder and Donahoe. Because the Court finds
that the Rule 12(b)(1) and 12(b)(6) grounds provide a
sufficient basis for dismissal, the Court declines to address
defendants' immunity arguments.
I.
BACKGROUND
In this
civil action, plaintiffs Sharyl Attkisson
("Attkisson"), James Attkisson, and Sarah Attkisson
(collectively, "plaintiffs") claim that defendants
Holder, Donahoe, and Unknown Named Agents of the Department
of Justice, United States Postal Service, and the United
States ("John Does" or "John Doe
agents")[1] violated a variety of their
constitutional, statutory, and common law rights by
conducting unauthorized electronic surveillance of
plaintiffs' home and electronic devices. See
Compl.[2] ¶¶ 1-2.
During
the time relevant to this action, Attkisson was an
investigative reporter for CBS News who covered, among other
stories, the federal gun-trafficking investigation known as
"Fast and Furious" and the attack on the American
diplomatic compound in Benghazi. Id. ¶ 6.
Plaintiffs James and Sarah Attkisson, both of whom live with
Attkisson, are Attkisson's husband and daughter,
respectively. Id. ¶¶ 7-8. Defendants
Holder and Donahoe were, at the relevant time, the Attorney
General and Postmaster General of the United States.
Id. ¶¶ 9-10. In those positions, Holder
oversaw the Department of Justice ("DOJ"),
including the Federal Bureau of Investigation
("FBI") and the Bureau of Alcohol, Tobacco,
Firearms, and Explosives ("ATF"), and Donahoe
oversaw the United States Postal Service ("USPS").
In
2011, Attkisson, who had been a reporter with CBS for twenty
years, began investigating a story about the ATF allowing
firearms dealers to sell weapons to straw purchasers to
enable the ATF to track the firearms back to higher-up
figures in Mexican drug cartels. See Id. ¶ 14
& n.2. Attkisson's first report on this story, which
eventually became known as the "Fast and Furious"
story, aired on CBS on February 22, 2011. Id. ¶
15. The story relied on a variety of confidential sources
critical of the program. Id. Throughout 2011,
Attkisson continued reporting on the program, allegedly in
the face of considerable efforts from the ATF, FBI, and DOJ
to stymie her reporting.[3] Over the year, the story expanded to
include apparent discrepancies in the FBI's accounting of
evidence in a related murder of a Border Patrol agent, id
¶¶ 18-21, alleged problems with Holder's
"sworn testimony" (presumably before Congress),
Id. ¶ 22, and the DOJ's retraction of a
letter it had previously sent to Congress that contained
misinformation about the program, Id. ¶ 24.
In
October 2012, Attkisson began reporting on the attacks in
Benghazi that resulted in the deaths of Ambassador
Christopher Stevens and three other American officials.
Id. ¶ 34. Attkisson's reports on the
situation were generally critical of the Executive Branch and
included information derived from a variety of confidential
sources within the federal government or with links to
intelligence agencies, including a public interview with
whistleblower Colonel Andrew Wood. Id. ¶¶
34-35.
In
"mid-to-late 2011, " plaintiffs "began to
notice anomalies in numerous electronic devices at their
home, " including a laptop and desktop "turning on
and off at night, " the "house alarm chirping daily
at different times, often indicating 'phone line trouble,
'" and television interference. Id. ¶
23. These various devices all used the Verizon FiOS line
installed in the home, and Verizon was unable to cure the
problems. Id. In January 2012, plaintiffs noticed
problems with their Internet service; although Verizon
installed a new router, the problems continued. Id.
¶ 25. In March 2012, Verizon replaced the router again
and, this time, also replaced the entire FiOS service box;
this too failed to resolve the issues. Id. ¶
29. By November 2012, plaintiffs' phone line was
"nearly unusable because of anomalies and interruptions,
" problems which also extended to Attkisson's mobile
phones. Id. ¶ 40. In December 2012, Attkisson
began discussing these problems with friends and contacts and
decided to log the dates and times that the computers in her
house turned on. Id. ¶ 41. Soon thereafter, the
"computer nighttime activity stopped." Id.
Also in
December 2012, plaintiffs asked a contact "with U.S.
government intelligence experience" to examine their
home. Id. ¶ 43. During this examination, the
consultant discovered an extra fiber optics line dangling
from plaintiffs' Verizon FiOS box. Id. Attkisson
contacted Verizon to ask about this line. Verizon disclaimed
any knowledge of the line and suggested Attkisson contact law
enforcement. Id. Soon thereafter, a person called
Attkisson, identified herself as a Verizon supervisor, and
said she would dispatch a technician to the house.
Id. The next day, which happened to be New
Year's Day, a person "represented to be a Verizon
technician" removed the cable. Id. ¶ 44.
Attkisson asked the technician to leave the cable by the box
and he did so; however, when Attkisson's husband arrived
home later, the cable was missing. Id. Attkisson
then "repeatedly" attempted to contact the
technician to ask about the now-missing cable; he never
returned her calls. Id. ¶ 45. In addition,
throughout January and February 2013, plaintiffs continued to
experience phone and internet issues; although Verizon was
notified about these problems, it was unable to fix them.
Id. ¶ 46.
These
various anomalies convinced Attkisson to have an expert
conduct a forensic analysis of her laptop. Id.
¶ 47. After the expert found evidence of sustained
intrusions (including using "sophisticated
software" whose "fingerprint indicated the software
was proprietary to the federal government"), Attkisson
reported this finding to CBS, which retained an expert to
examine the laptop and desktop computers. Id.
¶¶ 48-49. Plaintiffs allege, based on the expert
analysis, that their computers were the "targets of
unauthorized surveillance efforts" beginning as early as
June 2011 and that both plaintiffs' desktop and
Attkisson's work laptop, as well as plaintiffs'
Blackberry, were targeted, giving the intruder "complete
control of the system." Id. ¶ 27. The
forensic analysis also revealed that somebody "installed
sophisticated surveillance spyware" on Attkisson's
work laptop some time in February 2012 and "remotely
'refreshed' the ongoing surveillance" in July
2012. Id. ¶¶ 27, 32. Then, in December,
the intruders "executed remote actions" to
"remove evidence of the intrusion" from the various
electronics. Id. ¶ 42. Finally, in March 2013,
after the forensic examination, plaintiffs' desktop
"began malfunctioning and, after several days of it
freezing and emitting a burning odor, it shut down."
Id. ¶ 50. Plaintiffs have been unable to turn
the computer back on. Id.[4] Plaintiffs allege least some
of these intrusions were apparently executed "via an IP
address owned, controlled, and operated by the" USPS.
Id. ¶ 27.
In
mid-2013, Attkisson and CBS began publicly commenting on the
alleged intrusions and Attkisson filed a complaint with the
DOJ Inspector General. Id. ¶¶ 51, 53, 55.
In response, the FBI and DOJ privately and publicly stated
that they had no knowledge of any such intrusions.
Id. ¶¶ 52-53. In addition, the DOJ
Inspector General requested the ability to examine the
affected computers. Id. ¶ 60. CBS refused to
release the laptop, but Attkisson gave her desktop to the
DOJ. Id. In early 2015, before Attkisson testified
in front of a Senate panel, the Inspector General released a
"partial report upon Congressional request" that
"noted a great deal of advanced mode computer activity
not attributable to" plaintiffs but concluded that there
was "no evidence of intrusion" into the desktop.
Id.
The
Complaint alleges a variety of facts to support
plaintiffs' belief that Holder, Donahoe, and unknown
government employees were involved in the alleged electronic
intrusions.[5] First, plaintiffs point to various
policy-level initiatives taken by the DOJ in the realm of
electronic surveillance. These include a DOJ and FBI public
announcement in 2012 of "a new effort to vastly expand
cyber related efforts to address alleged 'national
security-related cyber issues'" and, around the same
time, the DOJ secretly seizing "personal and phone
records belonging to journalists from the Associated Press,
" including Attkisson. Id. ¶¶ 30,
72(C).[6] This action was reportedly criticized by a
variety of news organizations but defended by Deputy Attorney
General James Cole, allegedly at Holder's direction.
Id. ¶¶ 72(C)-(E). The DOJ also
"designated U.S. Attorneys' offices to act as
'force multipliers' in its stepped-up cyber efforts
in the name of national security." Id. ¶
31. In addition, around the same time, "internal emails
from a global intelligence company doing business with
government agencies" were published by Wikileaks; these
emails allegedly referenced White House "witch hunts of
investigative journalists" who published negative
stories about the White House. Id. ¶ 33
(internal quotation marks omitted). Later that year, in
October and November, the DOJ provided "specialized
training" for the National Security Cyber Specialists
("NSCS") network and the Computer Crime and
Intellectual Property Section of the Criminal Division and
Holder "hosted a national training conference" for
NSCS. Id. ¶¶ 36, 39.[7] In addition, the
USPS reportedly has a "working relationship with the
FBI, Department of Homeland Security, and DOJ for domestic
surveillance projects." Id. ¶ 63; see
also id ¶ 72(XX) (quoting a New York Times
article that reported on the USPS's "mass
surveillance program, " which involved approving
requests from a variety of agencies, including the DOJ, to
"monitor the mail... for use in criminal and national
security investigations").
With
respect to Holder's personal involvement, the Complaint
points to a variety of DOJ statements and interviews with
Holder as a basis for claiming that Holder had some knowledge
of illegal surveillance being carried out by the National
Security Agency, including "overcollection" of
domestic communications. Id. ¶¶ 72(M)-(0).
It also cites a DOJ report that "included an admission
of excessive intrusion in that it confirmed that significant
revisions to Department policies were being made, "
id. ¶ 72(P), and a report that Holder was
working on "new guidelines on dealing with news media,
" including "a dictate that records of a journalist
w[ould] only be collected if that person is the focus of a
criminal investigation and DOJ will forego the opportunity to
use search warrants to obtain journalists' emails or
other work product, " id. ¶ 72(Z). The
Complaint describes Holder as personally involved in illegal
surveillance conducted on journalist James Rosen in 2010, see
id. ¶¶ 72(AA)-(DD), and as
"'signing-off on search warrants as far back as
2009-2010, under the false representation that [various]
media members were involved as 'possible
co-conspirators' in carrying out violations of the
Espionage Act, " id. ¶ 72(EE).
The
Complaint also alleges that Holder was personally involved in
discussions that centered on Attkisson's Fast and Furious
reporting, that he directed Tracy Schmaler
("Schmaler"), one of his aides, to call CBS anchor
Bob Scheiffer "to get a 'handle' on
[Attkisson's] reporting, " and that Holder and
Schmaler "began using the DOJ assets to regularly work
with smear machines like Media Matters to attack
reporters, " including Attkisson. Id.
¶¶ 72(Q)-(T), 72(W). Schmaler is depicted as having
"yelled and screamed" at Attkisson over her
reporting. Id. ¶ 72(X).
With
respect to defendant Donahoe, the Complaint alleges that he
was ultimately responsible for the use of the USPS network
and that the USPS has participated to varying degrees with
the DOJ and FBI in assisting with investigations and in
unconstitutionally monitoring mail as part of a mass
surveillance program. Id. ¶¶ 72(00)-(YY).
Based
on this alleged misconduct, plaintiffs originally filed suit
against Holder, Donahoe, and the John Doe Agents in the
Superior Court of the District of Columbia, from which Holder
and Donahoe removed the complaint to the United States
District Court for the District of Columbia on February 18,
2015. [Dkt. No. 1]. This original action included only the
Bivens claims that are now Counts 1 and 2. In
September 2015, plaintiffs filed a separate suit against the
United States of America, Holder, Donahoe, and the John Doe
agents, alleging the statutory and common law claims that are
now Counts 3 through 8 and realleging the Bivens
claims. In July 2016, the two actions were consolidated into
one action, and, in March 2017, the consolidated action was
transferred to this district. See Dkt. Nos. 82 & 83.
After
defendants filed the present Motion to Dismiss [Dkt. No. 99]
and plaintiffs filed a timely Opposition [Dkt. No. 109], the
Court ordered plaintiffs to file a single consolidated
complaint to clear up inconsistencies created by the previous
consolidation of the two actions [Dkt. No. 114]. The revised
Complaint was filed on September 15, 2017. [Dkt. No. 117].
Rather than refiling their Motion to Dismiss, defendants
elected to proceed with their already-filed motion. See Dkt.
No. 118.
The
revised Complaint dropped the United States of America as a
defendant, leaving five defendants, all of whom are sued in
their individual capacities: Eric Holder, Patrick Donahoe,
Unknown Named Agents of the DO J, Unknown Named Agents of the
USPS, and Unknown Named Agents of the United States. The
Complaint includes eight counts, with all counts brought
against all defendants. Counts 1 and 2 are brought under
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), and allege violations of
plaintiffs' First and Fourth Amendment rights,
respectively. The remaining counts respectively allege
violations of the Electronic Communications Privacy Act
("ECPA") (Count 3), violations of the Stored
Communications Act ("SCA") (Count 4), violations of
the Computer Fraud and Abuse Act ("CFAA") (Count
5), violations of the Foreign Intelligence Surveillance Act
("FISA") (Count 6), violations of the Virginia
Computer Crimes Act ("VCCA") (Count 7), and common
law trespass to land and chattel (Count 8). Plaintiffs
request compensatory, punitive, and statutory damages; an
injunction; a declaration that defendants' actions were
illegal; and attorney's fees and costs.
Defendants'
Motion to Dismiss seeks dismissal of all eight counts with
respect to Holder and Donahoe. Because their arguments vary
by count, each count will be discussed in turn below.
II.
DISCUSSION
A.
Standard of Review
Under
Rule 12(b)(1), a civil action must be dismissed whenever the
court lacks subject matter jurisdiction. Although the
plaintiff has the burden of establishing subject matter
jurisdiction, Demetres v. East West Constr., Inc.,
776 F.3d 271, 272 (4th Cir. 2015), a court should accept
"as true the jurisdictionally significant facts
claimed" by the plaintiff, Motley v. Va. State
Bar. 403 F.Supp.2d 468, 471 (E.D. Va. 2005). After
accepting those facts as true, the court must determine
"whether those facts are sufficient as a matter of law
to establish subject matter jurisdiction." Id.
Under
Rule 12(b)(6), a civil action must be dismissed if the
complaint does not "contain sufficient facts to state a
claim that is 'plausible on its face.'" E.I,
du Pont de Nemours & Co. v. Kolon Indus., Inc., 637
F.3d 435, 440 (4th Cir. 2011) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). Although the court
must assume for the purposes of deciding the motion that all
"well-pleaded allegations" are true and must
"view the complaint in the light most favorable to the
plaintiff, " Philips v. Pitt Cry. Mem'l
Hosp., 572 F.3d 176, 180 (4th Cir. 2009), allegations
that are merely conclusory need not be credited, see
Iqbal. 556 U.S. at 678 (2009).
B.
Bivens Claims (Counts 1 and 2)
Defendants'
Motion to Dismiss argues that Bivens should not be
extended into this new context and that even if
Bivens were extended, defendants would be entitled
to qualified immunity[8] because plaintiffs have failed to
plausibly allege personal involvement on behalf of either
Holder or Donahoe in the alleged violations of
plaintiffs' rights. Def. Mem. [Dkt. No. 100] 5-14.
Before
examining plaintiffs' factual allegations in more detail,
the Court must first determine whether there exists a
Bivens cause of action to address the type of
misconduct plaintiffs allege. The analytic framework for
determining the availability of a Bivens action in a
given factual situation was clarified by the Supreme Court
earlier this year in Ziglar v. Abbasi, 137 S.Ct.
1843 (2017). In Abbasi, aliens who had been detained
in harsh conditions for months after the September 11th
attacks brought Bivens claims against former
Attorney General John Ashcroft, former FBI Director
Robert Mueller, former Immigration and Naturalization Service
Commissioner James Ziglar, and the warden and associate
warden of the facility in which they were detained. See
Id. at 1853-54. The detainees argued that the
officials had detained them in harsh conditions for a
punitive purpose, in violation of their substantive due
process rights; had done so because of their race, religion,
or national origin, in violation of their equal protection
rights; and that the warden and associate warden had
subjected them to punitive strip searches, in violation of
the Fourth and Fifth Amendments. See id[9] After the Second
Circuit allowed the detainees' claims to proceed under
Bivens, the Supreme Court reversed in a 4-2 decision,
[10]holding that a Bivens remedy was
not available to the detainees. See Id. at 1863. In
declining to extend Bivens, the Supreme Court
clarified that the first step in this analysis is to
determine whether the plaintiff seeks to extend
Bivens to a "new" or "novel"
context. If so, the court must perform a "special
factors analysis" to determine whether a Bivens
action should be available in that new context. See
Id. at 1854-63.
Under
this direction, the Court must first determine whether
plaintiffs' allegations would extend Bivens to a
new context. As the Supreme Court has explained, when
determining whether a context is new, a court must examine
whether the "case is different in a meaningful way from
previous Bivens cases decided by [the Supreme]
Court." Id. at 1859. Although not an exhaustive
list, the Abbasi decision cites as examples of
meaningful differences "the rank of the officers
involved; the constitutional right at issue; the generality
or specificity of the official action; the extent of judicial
guidance as to how an officer should respond to the problem
or emergency to be confronted; the statutory or other legal
mandate under which the officer was operating; the risk ...