Attkisson v. Holder

          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 ...