Sharyl Attkisson v. Eric Holder, Jr. ( 2019 )

ON REHEARING
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-1677
SHARYL THOMPSON ATTKISSON; JAMES HOWARD ATTKISSON;
SARAH JUDITH STARR ATTKISSON,
Plaintiffs – Appellants,
v.
ERIC HIMPTON HOLDER, JR., Individually; PATRICK R. DONAHOE,
Individually; UNKNOWN NAMED AGENTS OF THE DEPARTMENT OF
JUSTICE, In their individual capacities; UNKNOWN NAMED AGENTS OF
THE UNITED STATES POSTAL SERVICE, In their individual capacities;
UNKNOWN NAMED AGENTS OF THE UNITED STATES, In their individual
capacities; VERIZON VIRGINIA LLC; FEDERAL BUREAU OF
INVESTIGATION; MCI COMMUNICATIONS SERVICES, INC., d/b/a Verizon
Business Services; CELLCO PARTNERSHIP, d/b/a Verizon Wireless,
Defendants – Appellees.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Leonie M. Brinkema, District Judge. (1:17-cv-00364-LMB-JFA)
Argued: January 29, 2019 Decided: May 17, 2019
Amended: June 10, 2019
Before MOTZ, KING, and WYNN, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opinion, in which Judge Motz
joined. Judge Wynn wrote an opinion concurring in part and dissenting in part.
ARGUED: Paul Schiff Berman, Chevy Chase, Maryland, for Appellants. H. Thomas
Byron, III, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Reid
Mason Figel, KELLOGG, HANSEN, TODD, FIGEL & FREDERICK, P.L.L.C.,
Washington, D.C., for Appellees. ON BRIEF: Clyde T. Turner, TURNER &
ASSOCIATES, Little Rock, Arkansas, for Appellants. Joseph H. Hunt, Assistant
Attorney General, Catherine H. Dorsey, Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; G. Zachary Terwilliger, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Federal Appellees. David L. Schwarz, Kylie Chiseul Kim, Albert Y. Pak, KELLOGG,
HANSEN, TODD, FIGEL & FREDERICK, P.L.L.C., Washington, D.C., for Appellees
MCI Communications Services Incorporated, Cellco Partnership, and Verizon, Virginia,
LLC.
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KING, Circuit Judge:
Plaintiffs Sharyl Thompson Attkisson, James Howard Attkisson, and Sarah Judith
Starr Attkisson appeal from the dismissal with prejudice of their claims in the Eastern
District of Virginia. The plaintiffs sued a number of named and unnamed government
officials for alleged illegal intrusions into the plaintiffs’ electronic devices to conduct
unlawful surveillance, and also sued certain corporate entities for allegedly facilitating
those intrusions. After three-and-a-half years of protracted preliminary litigation —
including multiple amendments to the complaint — the district court dismissed the
plaintiffs’ claims. As explained below, we are satisfied to affirm the judgment.
I.
A.
The district court dismissed the majority of the plaintiffs’ claims pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. That ruling addressed the claims raised
in the plaintiffs’ consolidated complaint. See Attkisson v. Holder, No. 1:17-cv-00364
(E.D. Va. Sept. 15, 2017), ECF No. 117 (the “Consolidated Complaint”). In reviewing
that dismissal we accept and recite the facts alleged in the Consolidated Complaint in the
light most favorable to the plaintiffs. See Lucero v. Early, 873 F.3d 466, 469 (4th Cir.
2017).
The district court then disposed of the balance of the plaintiffs’ claims as
presented in their amended consolidated complaint. See Attkisson v. Holder, No. 1:17-
cv-00364 (E.D. Va. Feb. 5, 2018), ECF No. 174 (the “Amended Complaint”). The court
3
based that ruling partly on Rule 12(b)(6), and otherwise on various procedural defects
relating to the Amended Complaint. To properly review that final decision, we recite the
pertinent facts alleged in the Amended Complaint as well as the procedural history of this
litigation. See, e.g., Ballard v. Carlson, 882 F.2d 93, 94 (4th Cir. 1989) (providing “full
statement of the facts,” including procedural history, to review dismissal for procedural
defects).
1.
a.
At all relevant times, plaintiff Sharyl Thompson Attkisson (“Attkisson”) was an
investigative reporter for CBS News. Plaintiffs James Howard Attkisson and Sarah
Judith Starr Attkisson are Attkisson’s husband and daughter, respectively. In early 2011,
as alleged in the Consolidated Complaint, Attkisson worked on the CBS News
investigation into “Operation Fast and Furious,” an ill-fated sting operation of the Bureau
of Alcohol, Tobacco, and Firearms (the “ATF”). Intended as a means to sweep up gun
traffickers and drug cartel members at the southern border, Operation Fast and Furious
involved the circulation of thousands of firearms by the ATF that were to be traced and
recaptured along with their purchasers. The ATF, however, lost track of a large number
of those weapons, one of which was used to kill a Border Patrol Agent in 2010.
Attkisson’s highly critical report of the Operation aired on CBS on February 22, 2011.
Over the course of that year, Attkisson continued reporting on Operation Fast and
Furious, in the face of efforts by the ATF, the Federal Bureau of Investigation (the
4
“FBI”), and the Department of Justice (the “DOJ”) to stymie her reporting. 1 The story
surrounding the Operation grew to include alleged problems with then-Attorney General
Eric Holder’s testimony (apparently before Congress), as well as the DOJ’s retraction of
a letter to Congress that contained misinformation about the Operation.
In “mid-to-late 2011,” the plaintiffs noticed “anomalies” in several electronic
devices at their home in Leesburg, Virginia. See Consolidated Complaint ¶ 23.
Specifically, a laptop and desktop computer began “turning on and off at night,” the
house alarm went off without provocation, and the plaintiffs experienced phone and
television interference. Id. The plaintiffs’ devices relied on a Verizon FiOS line that
provided phone, internet, and television services to their home. The problems with those
devices continued through 2012, despite Verizon’s attempts to cure them.
Meanwhile, Attkisson continued her work for CBS. In October 2012, Attkisson
reported on the September 2012 attacks on our Embassy in Benghazi, Libya. Her
reporting on those attacks criticized the actions of the Obama administration, drawing on
confidential sources in the federal government.
In December 2012, the plaintiffs asked an acquaintance “with U.S. government
intelligence experience” to examine their home. See Consolidated Complaint ¶ 43. That
acquaintance found an extra fiber optics cable dangling from the plaintiffs’ Verizon FiOS
1
Although Attkisson asserts that the ATF, FBI, and DOJ mobilized against her
reporting, the specific facts underlying that claim amount to nothing more than the DOJ’s
denials in response to Attkisson’s reporting; the DOJ’s attempt to identify the sources of
internal leaks; and the ATF’s goal of “proactively push[ing] positive stories” to repair the
agency’s public image. See Consolidated Complaint ¶¶ 16-17 & n.2.
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box. When Attkisson called Verizon to ask about the cable, a Verizon representative
denied any knowledge of it and suggested that Attkisson contact law enforcement. Soon
thereafter, an individual identifying herself as a Verizon employee called Attkisson and
said she would send a technician to the plaintiffs’ home. The next day — January 1,
2013 — a person “represented to be a Verizon technician” removed the cable. Id. ¶ 44.
Attkisson later attempted to contact that technician but was unsuccessful. Through
January and February 2013, the plaintiffs continued to experience phone and internet
problems that Verizon could not solve.
On January 8, 2013, Attkisson gave her Toshiba laptop (used for her work for
CBS) to an expert to conduct a forensic analysis of the machine. That expert found
evidence of an unauthorized intrusion, possibly using software belonging to a
government actor. Attkisson reported the expert’s findings to CBS, which retained
another expert to examine Attkisson’s work laptop and home desktop computers. Based
on the forensic analysis conducted by the CBS-retained expert, the plaintiffs allege that
their desktop, smart phone, and Attkisson’s work laptop were the “targets of unauthorized
surveillance efforts,” beginning around June 2011. See Consolidated Complaint ¶¶ 27,
48-49. That analysis also showed that someone had installed “surveillance spyware” on
Attkisson’s work laptop around February 2012 and “executed remote actions” to remove
evidence of the surveillance around December 2012. Id. ¶¶ 27, 42.
In March 2013, the plaintiffs’ desktop began malfunctioning and finally shut down
for good. In September 2013, Attkisson “observed” that her personal laptop, a MacBook
Air, was “accessed remotely, controlled, and [unspecified] data deleted.” See
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Consolidated Complaint ¶ 57. The plaintiffs did not obtain any expert analysis of the
MacBook, but they allege that some of the intrusions described heretofore were executed
“via an IP address owned, controlled, and operated by” the United States Postal Service
(the “USPS”). Id. ¶ 27.
In mid-2013, Attkisson and CBS announced publicly that her personal devices had
been accessed and compromised. Attkisson also filed a complaint with the Inspector
General for the DOJ. In response, the FBI and DOJ privately and publicly affirmed that
they had no knowledge of any intrusions into the plaintiffs’ devices. The DOJ Inspector
General asked to examine the affected computers. CBS declined to release Attkisson’s
work laptop, but Attkisson provided her home desktop to the Inspector General. In early
2015, the Inspector General released a report that “noted a great deal of advanced mode
computer activity not attributable” to the plaintiffs, but concluded that there was “no
evidence of intrusion” into the desktop. See Consolidated Complaint ¶ 60.
b.
The Consolidated Complaint, filed in September 2017, named as defendants Eric
Holder, the Attorney General at all relevant times; Patrick R. Donahoe, the Postmaster
General during the relevant period; and “unknown named agents” of the DOJ, the USPS,
and “the United States.” See Consolidated Complaint 1. In addition to describing the
events recited above, the Consolidated Complaint offers a variety of allegations to link
those events to the defendants listed therein.
Regarding the defendant “unknown named agents,” or “John Doe agents,” the
Consolidated Complaint provides almost no direct allegations concerning those agents’
7
actions. Instead, it asserts that unnamed agents “are in some manner responsible and
liable for” the acts alleged by the plaintiffs, that is, the intrusions into their personal
electronic devices. See Consolidated Complaint ¶ 11.
The Consolidated Complaint also points to a number of policy-level initiatives
undertaken by the FBI and DOJ concerning electronic surveillance, presumably to
support the claim that employees of those agencies carried out the alleged intrusions. For
example, in 2012, the FBI and DOJ jointly announced a “new effort” to address “national
security-related cyber issues,” while simultaneously seizing “personal and phone records
belonging to journalists from the Associated Press.” See Consolidated Complaint ¶ 30.
The Consolidated Complaint does not allege, however, that those seizures were unlawful,
and later references the DOJ’s use of search warrants to investigate internal leaks to the
media. Id. ¶¶ 30, 72(Z), 72(AA). Later in 2012, the DOJ provided training for the
National Security Cyber Specialists Network, as well as the computer crime unit in the
DOJ’s Criminal Division. Regarding the role of the USPS, the plaintiffs allege that the
USPS has a “working relationship with the FBI, Department of Homeland Security, and
DOJ for domestic surveillance projects.” Id. ¶ 63.
The Consolidated Complaint also references emails released by Wikileaks (no
longer available online), in which members of a “global intelligence company doing
business with government agencies” discussed a perceived White House “witch hunt[] of
investigative journalists.” See Consolidated Complaint ¶ 33. Finally, that Complaint
alleges that in November 2012, the FBI “initiated a body of cyber security case
investigations that would later relate to the illegal intrusions” into the plaintiffs’ devices.
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Id. ¶ 39. It is unclear what those investigations entailed, what relationship they had to the
plaintiffs or the intrusions into their devices, and who or what was the focus of the FBI’s
inquiry. The Consolidated Complaint also alleges that the “FBI investigation involving
Ms. Attkisson’s computer intrusions was circulated to the DOJ’s national cyber security
group” in late 2012. Id. ¶ 59.
With respect to Attorney General Holder’s personal involvement, the Consolidated
Complaint identifies a number of public statements that purportedly show that Holder
knew of (unrelated) illegal surveillance conducted by the National Security Agency (the
“NSA”). It references a DOJ report regarding revisions to DOJ policies, including
changes that restricted the circumstances in which the DOJ would seek to seize a
journalist’s work product. The Consolidated Complaint asserts that Holder was
personally involved in what it characterizes as illegal surveillance of a reporter named
James Rosen in 2010, though it also alleges that Holder signed off on search warrants
concerning individuals in the media at that time. Lastly, the Consolidated Complaint
alleges that Holder discussed Attkisson’s reporting on Operation Fast and Furious; that he
directed an aide to call a CBS News anchor and tell him to “get a ‘handle’ on
[Attkisson’s] reporting”; and that Holder used “DOJ assets” to work with “smear
machines like Media Matters to attack reporters,” including Attkisson. See Consolidated
Complaint ¶ 72(Q)-(T), (W). 2
2
The Consolidated Complaint also makes various speculative and conclusory
assertions against Holder, such as stating, without any supporting factual allegation or
indication of personal knowledge, that Holder “promulgated a policy that required or
(Continued)
9
With regard to Postmaster Donahoe’s involvement in the foregoing events, the
Consolidated Complaint alleges that he was ultimately responsible for any use of the
USPS network, including the use of its IP addresses. That Complaint also generally
alleges that USPS has cooperated with the DOJ and FBI in their investigations, including
by unconstitutionally monitoring mail.
2.
The Amended Complaint, filed in February 2018, added as defendants, inter alia,
MCI Communications Services, Inc., d/b/a Verizon Business Services; Cellco Partnership
d/b/a Verizon Wireless; and Verizon Virginia LLC (collectively, the “Verizon
defendants,” or “Verizon”). The central factual allegations in the Amended Complaint
mirror those provided in the Consolidated Complaint. With respect to the Verizon
defendants and their involvement in the intrusions into the plaintiffs’ personal devices,
the Amended Complaint offers the following allegations:
• That Verizon provided the plaintiffs’ phone, internet, and television
services through the Verizon FiOS cable installed in their home;
• That Verizon made various attempts to resolve the anomalies with
the plaintiffs’ electronic devices and failed, as discussed above;
• That someone purporting to be a Verizon technician removed an
extra FiOS cable from the plaintiffs’ home, as discussed above;
encouraged the violation of Plaintiffs’ rights.” See Consolidated Complaint ¶ 72(G).
Like the district court, we disregard such bare speculation. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (emphasizing that allegations in complaint must
“raise a right to relief above the speculative level”).
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• That the FBI’s Telephone Telecommunications Intercept and
Collection Technology Unit has the capacity to interface with
Verizon’s network infrastructure; and
• That government agents used Verizon’s network to unlawfully
access Attkisson’s work laptop.
See Amended Complaint ¶¶ 31, 33, 38-39, 54-57, 81-82, 84.
B.
1.
These proceedings began in December 2014, when the plaintiffs sued Attorney
General Holder, Postmaster Donahoe, and the John Doe agents in the Superior Court of
the District of Columbia. The plaintiffs’ Superior Court complaint included First and
Fourth Amendment claims based on the electronic intrusions described above. In
February 2015, Holder and Donahoe removed the lawsuit to the district court for the
District of Columbia.
On February 23, 2015, the plaintiffs sought expedited discovery in the District of
Columbia, requesting “limited, immediate discovery” to “determine the true identifies
[sic] of the Doe Defendants.” See Attkisson v. Holder, No. 1:15-cv-00238 at 1 (D.D.C.
Feb. 23, 2015), ECF No. 5. Because the plaintiffs failed to provide a more detailed
explanation of such discovery, the district court denied their motion without prejudice.
The plaintiffs renewed their expedited discovery motion on March 20, 2015. The
renewed motion contained twenty-one interrogatories to be served on Holder, Donahoe,
the USPS, and DOJ. The interrogatories contained broad requests, including for “[t]he
identity of any person who has knowledge of existence and use of technology capable of
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remotely using a ‘kickstart’ program between 2011-2013” to remove surveillance
software from a personal computer. See Attkisson v. Holder, No. 1:15-cv-00238 at 4
(D.D.C. Mar. 20, 2015), ECF No. 21-1. The defendants opposed the plaintiffs’ renewed
discovery motion on April 6, 2015, and at the same time moved to dismiss the complaint.
In response, the plaintiffs amended their complaint. The district court thus denied the
motion to dismiss as moot.
On July 3, 2015, the district court denied the plaintiffs’ renewed motion to
expedite discovery. First, the court observed that the plaintiffs had failed to comply with
that court’s Local Rule requiring the parties to meet and confer before seeking court
intervention. The court also determined that the plaintiffs failed to meet the “good cause”
standard for expedited discovery, primarily because their requests were “not narrowly
tailored to discovering the identity of Doe defendants.” See Attkisson v. Holder, No.
1:15-cv-00238 at 11 (D.D.C. July 3, 2015), ECF No. 34.
Soon thereafter, the defendants renewed their motion to dismiss the then-operative
complaint in the District of Columbia. In response, the plaintiffs voluntarily dismissed
their claims against Holder and Donahoe without prejudice in August 2015. Because
Holder and Donahoe had been the only named defendants in that complaint, the district
court requested a “recommendation for future proceedings.” See Attkisson v. Holder, No.
1:15-cv-00238 (D.D.C. Aug. 27, 2015). The plaintiffs responded by asserting that they
intended to file a separate claim “against the named defendants and others” under the
Federal Tort Claims Act (the “FTCA”). See Attkisson v. Holder, No. 1:15-cv-00238 at 1
(D.D.C. Aug. 27, 2015), ECF No. 39. They also represented to the court that they were
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“in the process of serving” subpoenas on the USPS in an effort to identify the John Doe
agents. Id. at 2. The plaintiffs thus requested “that no action be taken in this case”
pending that discovery and the filing of their FTCA suit. Id. No further action occurred
in the original District of Columbia lawsuit until October 2015, when the plaintiffs
moved to compel the USPS to comply with their discovery efforts.
Over the next several months, the plaintiffs and the Government litigated the
plaintiffs’ motion to compel, which was fully briefed by March 2016. No party took any
action thereafter until July 28, 2016, when the district court consolidated the plaintiff’s
initial lawsuit with the FTCA complaint, pursuant to Federal Rule of Civil Procedure
42(a). The FTCA case — which the plaintiffs had filed in September 2015 — arose from
the same facts as the initial lawsuit, and identified as defendants Holder, Donahoe, the
John Doe agents, and the United States. In light of the change in named parties that was
occasioned by consolidation, the court denied the plaintiffs’ pending motion to compel as
moot. On March 29, 2017, the consolidated lawsuit was transferred from the District of
Columbia to the Eastern District of Virginia because the FTCA claims lacked venue in
the District of Columbia. We thus turn to a review of the post-transfer events in the
Eastern District of Virginia.
2.
a.
After their consolidated lawsuit was transferred to the Eastern District of Virginia
in March 2017, the plaintiffs’ lawyers failed to notice their appearances there until April
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21, 2017 — nearly a month later. The plaintiffs then took no action at all for three more
months.
On July 18, 2017, the case was reassigned from Judge Cacheris to Judge
Brinkema, and the court ordered that any motion to dismiss the plaintiffs’ claims be filed
by early August 2017. The plaintiffs filed their first motion in the Eastern District of
Virginia on July 26, 2017, moving for reconsideration of their most recent motion to
compel discovery, which the District of Columbia court had denied as moot upon
consolidating the two lawsuits. The plaintiffs’ motion sought USPS records and a taped
deposition of a USPS representative, to cover topics including, inter alia, “[a]ny and all
records, logs, or other form of identification material that will or may assist in
identifying” any persons with access to the IP address identified by the plaintiffs’
forensic analysis. See Attkisson v. Holder, No. 1:17-cv-00364 at 5 (E.D. Va. July 26,
2017), ECF No. 91-1. On July 28, 2017, the plaintiffs amended their discovery request to
cover information relating to a second IP address.
On August 9, 2017, the defendants moved to dismiss the plaintiffs’ claims for
failure to state a claim. Defendants Holder and Donahoe also invoked a qualified
immunity defense. On August 14, 2017, the defendants filed a joint opposition to the
plaintiffs’ motion for reconsideration, emphasizing the breadth of the plaintiffs’
discovery requests, the high bar for granting motions for reconsideration, and reasserting
the individual defendants’ right to immunity.
On September 1, 2017, the magistrate judge heard argument on the plaintiffs’
motion to reconsider. After the hearing, the magistrate judge denied the reconsideration
14
motion without prejudice “as to the subject matter of the discovery sought by plaintiffs,”
for reasons “stated from the bench.” Attkisson v. Holder, No. 1:17-cv-00364 (E.D. Va.
Sept. 1, 2017), ECF No. 107.
On September 5, 2017, the district court entered a scheduling order, which
established a discovery deadline of January 12, 2018. That same day, the plaintiffs
responded to the motion to dismiss. A week later, in light of confusion among the parties
concerning what constituted the operative complaint after the transfer to the Eastern
District of Virginia, the court ordered the plaintiffs to file the Consolidated Complaint. It
was filed on September 15, 2017.
b.
The Consolidated Complaint named as defendants Holder, Donahoe, and the John
Doe agents. Notably, it did not name the United States as a defendant. It alleged the
following claims: a First Amendment claim pursuant to Bivens v. Six Unknown Federal
Narcotics Agents, 403 U.S. 388 (1971) (Count 1); a Fourth Amendment Bivens claim
(Count 2); violations of the Electronic Communications Privacy Act (the “ECPA”)
(Count 3), the Stored Communications Act (the “SCA”) (Count 4), the Computer Fraud
and Abuse Act (the “CFAA”) (Count 5), the Foreign Intelligence Surveillance Act
(“FISA”) (Count 6), and the Virginia Computer Crimes Act (Count 7); plus common law
trespass (Count 8).
The pending motion to dismiss the Consolidated Complaint was fully briefed by
September 18, 2017, and the district court conducted a hearing on the dismissal motion
15
on September 22, 2017. During the hearing, the lawyers thoroughly argued the motion to
dismiss. The court also inquired about discovery issues:
THE COURT: [T]here still are these John Does out there, and you still, I
believe, have matters pending, or do you not, before [the magistrate judge]
in terms of discovery requests?
PLAINTIFFS’ COUNSEL: I don’t believe we do. I think he denied with
permission for us to re-raise any issues if there was a problem.
See Attkisson v. Holder, No. 1:17-cv-00364 at 20-21 (E.D. Va. Oct. 16, 2017), ECF No.
127 (transcript of September 22 hearing). The court “strongly suggest[ed]” that the
plaintiffs’ lawyers “start pursuing your discovery about that [USPS] IP address.” Id. at
21. The court then entered an order dismissing Counts 7 and 8 of the Consolidated
Complaint with prejudice, but held the remainder of the dismissal motion in abeyance.
Notably, the order observed that, although the United States had previously been named
as a defendant, “it was not named as a defendant in the Consolidated Complaint.” See
Attkisson v. Holder, No. 1:17-cv-00364 at 1 (E.D. Va. Sept. 22, 2017), ECF No. 122.
The plaintiffs did not seek reconsideration of that order.
c.
Meanwhile, the parties filed a joint discovery plan (for which they had jointly
obtained a brief extension), which the magistrate judge approved on September 25, 2017.
That plan retained the final discovery deadline of January 12, 2018. On September 27,
2017, the plaintiffs noticed their first deposition in the Eastern District of Virginia — six
months after the litigation was transferred there. That notice again sought to depose a
USPS representative and requested various records from that agency. The topics
16
specified in the notice were similar to those identified in the plaintiffs’ previous
discovery motion, litigated in August 2017. It retained a request for “any and all records,
logs, or other form of identification material” that “will or may assist in identifying” any
person who had access to the listed IP addresses. See Attkisson v. Holder, No. 1:17-cv-
00364 at 3 (E.D. Va. Sept. 27, 2017), ECF No. 125. According to the briefs, the
plaintiffs deposed a USPS representative in mid-October 2017.
On October 27, 2017, Holder and Donahoe — the two remaining named
defendants — moved to stay discovery until the district court resolved the balance of
their motion to dismiss the Consolidated Complaint. Holder and Donahoe emphasized
that, if they prevailed on qualified immunity, they were entitled to immunity from suit,
including discovery. They also represented to the court that the plaintiffs had recently
served wide-ranging document subpoenas on nine federal agencies and departments,
including the FBI, the ATF, the Central Intelligence Agency (the “CIA”), and the NSA.
The defendants submitted as support the plaintiffs’ subpoena to the NSA, which included,
inter alia, a request for all records relating to “Sharyl Attkisson’s and/or CBS reporting
on Benghazi” between 2004 and 2017. See Attkisson v. Holder, No. 1:17-cv-00364 at 12
(E.D. Va. Oct. 27, 2017), ECF No. 130-1. As an alternative to their motion to stay
discovery, the defendants sought a protective order.
d.
Shortly thereafter, on November 1, 2017, the district court dismissed with
prejudice Counts 1 through 6 of the Consolidated Complaint as to Holder and Donahoe.
See Attkisson v. Holder, 1:17-cv-00364 (E.D. Va. Nov. 1, 2017), ECF No. 133 (the “First
17
Dismissal”). The court also dismissed with prejudice Count 4 of the Consolidated
Complaint as to all parties. With the filing of the First Dismissal, the only pending
aspects of the litigation were Counts 1, 2, 3, 5, and 6, as to the John Doe agents. In the
circumstances, the First Dismissal also denied as moot Holder and Donahoe’s motion to
stay discovery.
On the very day the district court filed the First Dismissal, the plaintiffs moved to
again name the United States as a defendant, asserting that they had inadvertently omitted
to name the United States in the Consolidated Complaint. The court denied that motion
two weeks later, on November 16, 2017, ruling that the plaintiffs had failed to show good
cause and that “[a]llowing plaintiffs to add a defendant back into the litigation at this
stage would lead to a regression of the litigation and impair judicial economy.” See
Attkisson v. Holder, No. 1:17-cv-00364, at 4 (E.D. Va. Nov. 16, 2017), ECF No. 140.
The court emphasized that the plaintiffs had not sought relief when the court’s September
22, 2017 order referenced the omission of the United States as a defendant. The court
observed, however, that the plaintiffs were entitled to pursue their remaining claims
against the John Doe agents. 3
3
More than a month later, on December 26, 2017, the plaintiffs filed another
complaint against the United States in the Eastern District of Virginia. See Attkisson v.
United States, No. 1:17-cv-01474 (E.D. Va. Dec. 26, 2017). In April 2018, the district
court dismissed that complaint for lack of service, pursuant to Federal Rule of Civil
Procedure 4(m) (requiring dismissal of any defendant not served within ninety days after
complaint is filed, absent good cause).
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Accordingly, the plaintiffs continued to pursue discovery, including seeking
information from non-party Verizon entities. On December 1, 2017, the magistrate judge
granted the plaintiffs’ request to vacate the existing scheduling order and authorized the
plaintiffs to “substitute new parties for the John Doe defendants by no later than January
5, 2018, at 10:00 a.m.” See Attkisson v. Holder, No. 1:17-cv-00364, at 1 (E.D. Va. Dec.
1, 2017), ECF No. 145. The judge explained: “Once the substituted parties have been
served and make an appearance in this case, a new scheduling order will be entered.” Id.
Two weeks later, the plaintiffs sought to extend the substitution deadline. That
motion was granted and the deadline for naming the John Doe agents was extended to
February 5, 2018. In its order, the district court emphasized that the John Doe agents
were “the only defendants remaining in this civil action,” and explicitly advised that this
order constituted the plaintiffs’ final extension “because the interests of judicial economy
and fairness to third parties and potential future defendants dictate that plaintiffs move
forward with this litigation in as timely a fashion as possible.” See Attkisson v. Holder,
No. 1:17-cv-00364, at 1-2 (E.D. Va. Dec. 29, 2017), ECF No. 151.
e.
On January 5, 2018, Verizon Virginia LLC (“Verizon”) sought a protective order
against the plaintiffs’ pending discovery requests. Verizon represented to the court that
the plaintiffs had first sought third-party discovery from Verizon on October 16, 2017,
requesting records related to purported surveillance of the Attkissons. Verizon had
responded that it possessed no documents responsive to that request. During the next two
months, the plaintiffs served five additional discovery requests on Verizon, some of
19
which did not match the notices the plaintiffs filed with the court, and most of which
were broader in scope than the October 16 request. For example, a discovery request of
December 7, 2017, sought to depose a Verizon representative regarding “Verizon’s cyber
security operations between 2010 and 2014,” including “the relationship between
Verizon and the U.S. Intelligence Community.” See Attkisson v. Holder, No. 1:17-cv-
00364 at 2 (E.D. Va. Dec. 7, 2017), ECF No. 147.
On the very day that Verizon sought the protective order — January 5, 2018 — the
plaintiffs filed a motion to compel discovery from the various third-party government
entities they had served with document subpoenas, including the FBI, the CIA, and the
NSA. Importantly, the January 5 motion to compel was the first — and only — effort to
compel discovery that the plaintiffs pursued in the Eastern District of Virginia. 4
A week later, on January 12, 2018, the magistrate judge conducted a hearing on
Verizon’s protective order request and the plaintiffs’ motion to compel. The judge first
addressed Verizon’s motion, which it granted in part and denied in part, addressing each
disputed request individually. As part of the approved requests, the judge authorized the
deposition of Todd Haskell, the Verizon technician who made a service call to the
Attkissons’ home on January 1, 2013. See Attkisson v. Holder, No. 1:17-cv-00364 at 6,
17 (E.D. Va. Jan. 24, 2018), ECF No. 173 (transcript of January 12 hearing). The judge
4
The plaintiffs filed another motion to compel in February 2018, after their
Amended Complaint was filed. They soon withdrew that motion to compel.
20
also approved a deposition of a Verizon corporate representative, either Haskell or some
other designated employee.
Turning to the plaintiffs’ motion to compel, the magistrate judge expressed
skepticism concerning the plaintiffs’ need for documents dating back to 2004, and
criticized the requested discovery as overly broad. The judge emphasized to the lawyers
that they should focus on “identification discovery” rather than “liability discovery,” and
advised that “a new scheduling order” would be issued if “Doe defendants” were
successfully named. See Attkisson v. Holder, No. 1:17-cv-00364 at 24 (E.D. Va. Jan. 24,
2018), ECF No. 173. The judge explained that, with the Does being the only remaining
defendants, identification discovery had to come first, because “the party involved in the
lawsuit . . . needs to be involved in that discovery.” Id. at 25. The plaintiffs answered
that they had “tried to focus [their] discovery” on “attribution.” Id. In response, the
judge advised that their requests did not reflect such a focus and, in fact, were so
“generic” and of such “astounding” scope that it was difficult to rule on them. Id. at 26-
27.
Nevertheless, the magistrate judge instructed the parties to proceed with discovery
for the purpose of “identify[ing] the Doe defendants.” Id. at 35. No discovery outside
the identification purpose was permitted. That said, the judge required “more specific
information” before he could grant a motion to compel. Id. at 36. The judge thus denied
the motion to compel without prejudice. As the hearing concluded, the judge instructed
the plaintiffs’ lawyers “to focus on this and get it done as quickly as possible” to
“hopefully meet the February 5 deadline” for naming the John Doe defendants. Id. at 37.
21
f.
Despite those warnings, the plaintiffs made no motions or requests of the district
court between the January 12, 2018 hearing and the February 5, 2018 deadline for
naming the John Doe defendants. That is, for twenty-three days the plaintiffs neither
sought the court’s aid with discovery nor requested an extension of the deadline. And the
plaintiffs’ lawyers later admitted to the court that they had not submitted any revised
discovery requests to the government agencies until January 28, 2018 — just one week
before the deadline. See Attkisson v. Holder, No. 1:17-cv-00364 at 2 (E.D. Va. Feb. 13,
2018), ECF No. 176. Verizon has since represented to this Court that the plaintiffs did
not take the depositions of the two Verizon employees that the magistrate judge
authorized at the January 12 hearing. See Br. of Verizon Defendants-Appellees 3. 5
Instead, on February 5, 2018, the plaintiffs purported to file their Amended
Complaint. The plaintiffs were only authorized to amend their complaint by substitution
of named parties for the John Doe defendants, as ordered by the district court.
Nevertheless, the Amended Complaint failed to substitute any named parties for the John
Doe agents. It again identified as defendants the United States and unknown named
agents of the DOJ, the USPS, and the United States. The Amended Complaint also added
5
In the proceedings below and on appeal, the plaintiffs have maintained that they
were “permitted only to conduct a grand total of one deposition,” which is false. See Br.
of Appellants 48. It appears, however, that the plaintiffs never deposed a Verizon
representative, despite receiving the magistrate judge’s authorization. See Attkisson v.
Holder, No. 1:17-cv-00364 at 2 (E.D. Va. Apr. 23, 2018), ECF No. 207 (plaintiffs’
representation that “there has been exactly one deposition in this case” of a USPS
representative).
22
as new defendants the FBI and the Verizon defendants. Additionally, it realleged Counts
4, 7, and 8, which the court had already dismissed with prejudice. The named defendants
— that is, the United States, the FBI, and the Verizon defendants — promptly moved in
March 2018 to dismiss the Amended Complaint.
On May 15, 2018, the district court granted the motions of the named defendants
to dismiss the Amended Complaint and disposed of the plaintiffs’ claims. See Attkisson
v. Holder, No. 1:17-cv-00364 (E.D. Va. May 15, 2018), ECF No. 213 (the “Second
Dismissal”). The Second Dismissal ruled that the plaintiffs had violated several of the
court’s earlier orders with regard to amending the complaint. By way of example, the
Amended Complaint added defendants who were not appropriate substitutes for the John
Doe agents and simply ignored the court’s prior order denying leave to name the United
States as a defendant.
Although the plaintiffs’ procedural violations sufficed to dismiss the Amended
Complaint, the court provided additional explanations for its rulings. First, the court
dismissed the resurrected claims against the United States because it had already denied
leave to rename the United States as a defendant. Next, the court dismissed the claims
against the FBI because no such lawsuit was authorized by any of the statutory provisions
under which the plaintiffs sought to sue the Bureau. See Second Dismissal 5 (citing
Blackmar v. Guerre, 342 U.S. 512 (1952)). The court dismissed the claims against the
Verizon defendants as procedurally barred and for failure to state a plausible claim to
relief. Finally, the court dismissed the claims against the John Doe agents because, after
23
more than three years of litigation, those unnamed agents had never been identified or
served, and the plaintiffs had “made no substantial progress” in that regard. Id. at 6 n.3.
Because of the plaintiffs’ multitude of procedural violations, and because the
district court decided that further amendments “would be futile,” the court declined to
authorize the plaintiffs to again amend their complaint. See Second Dismissal 5-6.
Accordingly, the court entered final judgment in favor of the defendants.
The plaintiffs have timely noted this appeal. They challenge only the dismissal of
their Fourth Amendment Bivens claim with respect to Holder and Donahoe, the dismissal
of their ECPA claim with respect to those defendants, and the district court’s dismissal of
the Amended Complaint — including the claims against the John Doe agents and the
Verizon defendants — with its concomitant denial of leave to further amend their
complaint. We possess appellate jurisdiction pursuant to 28 U.S.C. § 1291.
II.
This Court reviews de novo a dismissal under Federal Rule of Civil Procedure
12(b)(6). See Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253
(4th Cir. 2009). In so doing, we accept all well-pleaded facts as true and draw all
reasonable inferences in favor of the plaintiffs. Id. That said, we “need not accept legal
conclusions couched as facts or unwarranted inferences, unreasonable conclusions, or
arguments.” Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012) (internal
quotation marks omitted). Viewing the complaint in that light, it must provide “sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.’”
24
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
By contrast, we review the dismissal of a complaint for violation of court orders
for abuse of discretion. See Simpson v. Welch, 900 F.2d 33, 35-36 (4th Cir. 1990). We
likewise review for abuse of discretion a district court’s denial of leave to amend a
complaint, see Scott v. Family Dollar Stores, Inc., 733 F.3d 105, 112 (4th Cir. 2013), and
the dismissal of a defendant for lack of service, see Shao v. Link Cargo (Taiwan) Ltd.,
986 F.2d 700, 708 (4th Cir. 1993).
III.
The plaintiffs present three challenges to the district court’s rulings. First, they
contend that the court erred in dismissing their Fourth Amendment Bivens claim against
Attorney General Holder and Postmaster Donahoe as a matter of law. Second, they
dispute the court’s dismissal of their ECPA claim against Holder and Donahoe. Third,
the plaintiffs contest the court’s dismissal of the John Doe agents and Verizon defendants
on procedural grounds, along with its simultaneous denial of leave to further amend their
complaint. We address these contentions in turn.
A.
The plaintiffs first contest the district court’s dismissal of their Fourth Amendment
Bivens claim against Attorney General Holder and Postmaster Donahoe for failure to
present a cognizable claim under the Supreme Court’s controlling precedent. In the
Consolidated Complaint, the plaintiffs allege that Holder, Donahoe, and the John Doe
25
agents violated their Fourth Amendment rights by unlawfully surveilling the plaintiffs
through their electronic devices. They seek damages for that alleged injury pursuant to
the Court’s ruling in Bivens v. Six Unknown Federal Narcotics Agents, which authorized
damages for certain constitutional violations by federal officials. See 403 U.S. 388, 395
(1971). In its First Dismissal, the district court rejected that claim as to Holder and
Donahoe because, under more recent precedent, the plaintiffs failed to state a viable
Bivens claim against those named defendants. We agree.
The Supreme Court’s 2017 decision in Ziglar v. Abbasi narrowed the
circumstances in which a plaintiff may successfully state a claim under the principles
established in Bivens. See 137 S. Ct. 1843, 1857-58 (2017). As the Court explained in
Abbasi, the Bivens decision created an implied cause of action, permitting civil suits for
damages for constitutional violations by federal officials where Congress had not
indicated that such a remedy was foreclosed. Id. at 1854. Bivens itself authorized
damages in a situation involving an unlawful search and arrest in the plaintiff’s home.
See 403 U.S. at 389. In the years since Bivens, the Court has recognized implied causes
of action in two additional situations: for the violation of a prisoner’s Eighth Amendment
right to adequate medical care, and for a federal employee’s Fifth Amendment due
process right against gender discrimination. See Abbasi, 137 S. Ct. at 1854-55 (citing
Carlson v. Green, 446 U.S. 14 (1980); Davis v. Passman, 442 U.S. 228 (1979)). 6 In
6
The Supreme Court may have recognized a fourth Bivens context in Farmer v.
Brennan, which sustained a prisoner’s Eighth Amendment claim for damages against
federal prison officials for failure to protect. See 511 U.S. 825, 823-49 (1994). Although
(Continued)
26
Abbasi, the Court clarified the inquiry as to whether a cognizable Bivens remedy exists
with regard to a specific type of alleged official misconduct. First, a court must
determine whether the claim “presents a new Bivens context.” Id. at 1859. If it does, the
court must assess whether any “special factors counsel[] hesitation” in recognizing a new
remedy “in the absence of affirmative action by Congress.” Id. at 1857.
A Bivens claim arises in a “new context” if the case differs “in a meaningful way
from previous Bivens cases decided by” the Supreme Court. See Abbasi, 137 S. Ct. at
1859. Examples of such meaningful differences include:
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 of disruptive intrusion by the Judiciary into
the function of other branches; or the presence of potential special factors
that previous Bivens cases did not consider.
Id. at 1860. Although Bivens itself approved a remedy for an alleged Fourth Amendment
violation, we agree with the district court that the claim asserted by the plaintiffs here
presents a “new Bivens context.”
The plaintiffs’ Fourth Amendment Bivens claim against Holder and Donahoe
differs meaningfully from the claim raised in Bivens in numerous ways that are material
the Abbasi Court did not include Farmer in its list of recognized Bivens contexts, the
Third Circuit recently held that a prisoner’s failure-to-protect claim did not present a new
Bivens context in light of Farmer. See Bistrian v. Levi, 912 F.3d 79, 90-92 (3d Cir.
2018). Because the plaintiffs’ claim here is entirely distinct from that raised in Farmer,
we need not and do not decide whether such a claim would present a new Bivens context.
27
under Abbasi. First, Holder and Donahoe held much higher ranks than the line-level FBI
agents sued in Bivens. Second, a claim based on unlawful electronic surveillance
presents wildly different facts and a vastly different statutory framework from a
warrantless search and arrest. Finally, the plaintiffs seek to hold high-level officials
accountable for what they themselves frame as policy-level decisions to target internal
leaks to the media. In these circumstances, the plaintiffs’ claim against Holder and
Donahoe assuredly presents a “new Bivens context.”
Moreover, the plaintiffs’ Fourth Amendment Bivens claim fails at the second step
described in Abbasi. Various “special factors” identified in the Abbasi decision counsel
hesitation against recognizing a Bivens claim here. See 137 S. Ct. at 1857. It is
sufficient, however, to note that Congress has legislated extensively in the area of
electronic surveillance and intrusions into electronic devices without authorizing
damages for a Fourth Amendment violation in such circumstances. Indeed, Congress has
created several private causes of actions under various statutes governing the surveillance
and the integrity of personal computing devices, including the SCA, FISA, and the
CFAA. That legislation suggests that Congress’s “failure to provide a damages remedy”
for Fourth Amendment violations in similar factual circumstances is “more than
inadvertent,” and strongly counsels hesitation before creating such a remedy ourselves.
See Abbasi, 137 S. Ct. at 1862. Indeed, “if there is an alternative remedial structure
present in a certain case, that alone may limit the power of the Judiciary to infer a new
Bivens cause of action.” Id. at 1858; see also Schweiker v. Chilicky, 487 U.S. 412, 423
(1988) (same).
28
In these circumstances, we discern “sound reasons to think Congress might doubt
the efficacy or necessity of a damages remedy as part of the system for enforcing the law
and correcting a wrong,” and we are therefore obliged to “refrain from creating the
remedy.” See Abbasi, 137 S. Ct. at 1858. Accordingly, we are satisfied to affirm the
district court’s dismissal of the plaintiffs’ Fourth Amendment Bivens claim with respect
to Holder and Donahoe.
B.
By way of their second appellate contention, the plaintiffs maintain that the district
court erred in rejecting their ECPA claim as part of the First Dismissal. The plaintiffs
assert that Holder and Donahoe violated the ECPA’s prohibition on the unauthorized
interception and disclosure of wire, oral, or electronic communications, codified at 18
U.S.C. § 2511. Section 2511 provides that
any person who — (a) intentionally intercepts, endeavors to intercept, or
procures any other person to intercept or endeavor to intercept, any wire,
oral or electronic communication; (b) intentionally uses, endeavors to use,
or procures any other person to use or endeavor to use any electronic,
mechanical, or other device to intercept any oral communication when
[certain undisputed elements are met]; (c) intentionally discloses, or
endeavors to disclose, to any other person the contents of any wire, oral, or
electronic communication, knowing or having reason to know that the
information was obtained through the interception of a wire, oral, or
electronic communication in violation of this subsection [has violated the
ECPA, unless authorized by law as detailed elsewhere in the statute].
Specifically, the Consolidated Complaint alleges that Holder and Donahoe procured
government agents to intercept the plaintiffs’ electronic communications. The plaintiffs
pursued that claim under the ECPA’s private right of action, which provides that
29
any person whose wire, oral, or electronic communication is intercepted,
disclosed, or intentionally used in a violation of this chapter may in a civil
action recover from the person or entity, other than the United States, which
engaged in that violation such relief as may be appropriate.
See 18 U.S.C. § 2520. Comparing § 2511 and § 2520, the district court determined that
the cause of action authorized by § 2520 does not extend to persons who procured
another to intercept, disclose, or intentionally use a covered communication. Rather, the
court concluded that a suit under § 2520 may only target an individual who directly
intercepted, disclosed, or used such a communication in violation of § 2511.
On appeal, the plaintiffs challenge the district court’s interpretation and argue that
§ 2520 is better read to permit civil suits with regard to any violation of § 2511. We
decline to address that interpretive issue, however, because we agree with the
Government that, even if § 2520 supports a civil ECPA claim for procurement, Holder
and Donahoe are entitled to qualified immunity. 7
Qualified immunity protects government officials from civil liability and suit
“insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” See Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). To overcome an official’s claim of qualified immunity, the
plaintiff must show: “(1) that the official violated a statutory or constitutional right, and
7
The district court did not premise its dismissal ruling on qualified immunity, but
Holder and Donahoe raised that defense below and we are entitled to affirm on any
ground fairly presented in the record. See Attkisson v. Holder, No. 1:17-cv-00364, at 19
(E.D. Va. Aug. 9, 2017), ECF No. 100 (defendants invoking qualified immunity); see
also United States v. Smith, 395 F.3d 516, 519 (4th Cir. 2005) (confirming that we may
affirm “on any grounds apparent from the record”).
30
(2) that the right was clearly established at the time of the challenged conduct.” See
Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (internal quotation marks omitted). A
court need not address those inquiries in sequence, but instead may exercise its “sound
discretion” in deciding which issue to first address. See Pearson v. Callahan, 555 U.S.
223, 236 (2009). The official is entitled to qualified immunity if either prong is not
satisfied. Id. at 244-45.
Assessing the plaintiffs’ ECPA claim, we conclude that, to the extent Holder and
Donahoe procured any wrongful interception, use, or disclosure of the plaintiffs’
electronic communications, they did not violate a clearly established right. To show a
clearly established right, a plaintiff must identify existing precedent that “placed the
statutory or constitutional question beyond debate.” See al-Kidd, 563 U.S. at 741. This
the plaintiffs have failed to do. Compare Peavy v. WFAA-TV, Inc., 221 F.3d 158, 169
(5th Cir. 2000) (ruling that § 2520 only authorizes suits based on “illegal interception,
disclosure, or use, and not to procuring interception by another”), with Lonegan v. Hasty,
436 F. Supp. 2d 419, 427-28 (E.D.N.Y. 2006) (concluding that § 2520 permits suits
based on procurement).
Whatever our view of the procurement issue, the lack of settled precedent
supporting the plaintiffs’ ECPA claim demonstrates that Holder and Donahoe are now
entitled to qualified immunity. See Abbasi, 137 S. Ct. at 1868 (“When the courts are
divided on an issue so central to the cause of action alleged, a reasonable official lacks
31
the notice required before imposing liability.”). Consequently, we affirm the district
court’s dismissal of the ECPA claim with regard to Holder and Donahoe. 8
C.
The plaintiffs’ third and final appellate contention challenges the district court’s
Second Dismissal. More specifically, the plaintiffs object to the dismissal of their claims
against the Verizon defendants and the John Doe agents — which they argue should
survive the dismissal of their claims against Holder and Donahoe — as well as the court’s
denial of leave to further amend their complaint.
The district court dismissed the remaining defendants and denied the plaintiffs
leave to further amend their complaint based on similar reasoning. Put simply, the court
was dissatisfied with the plaintiffs’ lack of progress in pursuing their claims after more
than three years of litigation, and their lack of respect for court orders. The court
observed that the plaintiffs had failed to identify or serve any of the John Doe agents,
even after receiving multiple extensions to the court’s deadline. Indeed, the plaintiffs had
made little or no progress in that regard, despite filing five complaints (not counting two
complaints that were replaced with corrected versions).
8
In their appellate brief, the plaintiffs suggested — apparently for the first time —
that Holder and Donahoe “might” have directly intercepted, used, or disclosed the
plaintiffs’ electronic communications. See Br. of Appellants 33 n.6. The Consolidated
Complaint, however, fails to support that idle speculation or reflect such a claim. And in
their petition for rehearing of May 6, 2019, the plaintiffs have suggested — again for the
first time — that qualified immunity does not attach if the unlawfulness of an alleged act
is clear and the availability of a remedy is the only dispute. See Pet. for Reh’g 10-11.
Although Holder and Donahoe squarely raised — in the district court and again in this
Court — the qualified immunity defense we have adopted, the plaintiffs opted not to
heretofore present their counterargument. They have thus forfeited any such contention.
32
Moreover, the Amended Complaint contravened the court’s prior orders and the
Federal Rules of Civil Procedure in multiple ways:
• The Amended Complaint failed to comply with the court’s order to
substitute named parties for the John Doe agents and instead retained
the Doe defendants while adding new defendants;
• The plaintiffs had leave of court to amend their complaint solely to
name the John Doe agents and violated that leave by adding new
defendants;
• The plaintiffs never sought additional leave to amend their complaint
nor challenged the leave they were granted;
• The new defendants included the United States, despite the court’s
prior order denying leave to rename the United States as a defendant;
and
• The Amended Complaint attempted to resurrect several claims that
the court had already dismissed with prejudice.
In discussing those procedural defects, the court emphasized its warnings to the plaintiffs
that the February 5, 2018 deadline was necessary to avoid prejudicing the defendants (or
potential future defendants), and to protect the interests of judicial economy. Those
concerns, as the court explained, also motivated the Second Dismissal.
The court concluded that further amendment to the complaint would, in any event,
be futile, because the claims against the FBI had no statutory basis and the claims against
the Verizon defendants failed to state any plausible claim to relief. With regard to the
John Doe agents, the court ruled that, given the lack of “substantial progress in
identifying them,” the time had come “to end this litigation against them as well, and for
this reason, the claims against them are also dismissed.” See Second Dismissal 6 n.3.
33
On appeal, the plaintiffs contest only the dismissal of the Verizon defendants and
the John Doe agents, as well as the district court’s denial of leave to further amend their
complaint. Despite its detailed discussion in the Second Dismissal of the procedural
defects of the Amended Complaint, the court did not specify the rules of procedure that
provided the bases for its rulings. Nevertheless, we are entitled to affirm “on any
grounds supported by the record.” See Kerr v. Marshall Univ. Bd. of Governors, 824
F.3d 62, 75 n.13 (4th Cir. 2016). And we are entirely satisfied that the Amended
Complaint was properly subject to dismissal pursuant to Rule 41(b). With respect to the
John Does, the claims against those unknown defendants were subject to dismissal under
Rule 4(m), which requires the dismissal of a defendant who remains unserved ninety days
after a complaint is filed, absent good cause. Accordingly, the court did not abuse its
discretion in dismissing the Amended Complaint and denying the plaintiffs leave to
further amend their complaint. We will expand on those rulings.
1.
As the Supreme Court has recognized, a court has the “inherent power” to dismiss
an action for want of prosecution. See Link v. Wabash R. Co., 370 U.S. 626, 630 (1962).
Although Rule 41(b) of the Federal Rules of Civil Procedure provides an “explicit basis
for this sanction,” it is not the source of that inherent power. See Doyle v. Murray, 938
F.2d 33, 34 (4th Cir. 1991). Rather, that judicial power derives from “the control
necessarily vested in courts to manage their own affairs so as to achieve the orderly and
expeditious disposition of cases.” See Link, 370 U.S. at 630-31. As provided by Rule
41(b), such involuntary dismissals are appropriate when “the plaintiff fails to prosecute or
34
to comply with [the Federal Rules of Civil Procedure] or a court order.” Given the
inherent judicial authority to make such dismissals, a court may, in appropriate
circumstances, enter such a dismissal sua sponte, even absent advance notice of “the
possibility of dismissal.” See Link, 370 U.S. at 632-33.
That said, recognizing the severity of dismissal as a sanction, we have identified
four criteria that guide a district court’s discretion in dismissing a case under Rule 41(b).
Such an exercise should weigh: “(1) the plaintiff’s degree of personal responsibility; (2)
the amount of prejudice caused the defendant; (3) the presence of a drawn out history of
deliberately proceeding in a dilatory fashion; and (4) the effectiveness of sanctions less
drastic than dismissal.” See Hillig v. C.I.R., 916 F.2d 171, 174 (4th Cir. 1990). Those
criteria, however, “are not a rigid four-prong test.” See Ballard v. Carlson, 882 F.2d 93,
95 (4th Cir. 1989) (Powell, J.). Rather, the propriety of an involuntary dismissal
ultimately depends on “the facts of each case,” which we review to determine “whether
the trial court exercised sound discretion.” See Reizakis v. Loy, 490 F.2d 1132, 1135 (4th
Cir. 1974); see also Link, 370 U.S. at 633. 9
9
Contrary to the assertion of our dissenting friend, we have never ruled that a
district court’s failure to expressly analyze the four factors guiding involuntary dismissals
is itself an abuse of discretion. See post at 67. Rather, we have consistently reviewed the
full circumstances of each such dismissal. See Reizakis, 490 F.2d at 1135 (evaluating
“the circumstances of this case,” including, inter alia, whether trial court had
“consider[ed] measures less drastic than dismissal”). Our approach accords with the
Supreme Court’s decision in Link, which emphasized the context-dependent nature of
such dismissals and affirmed the lower court’s involuntary dismissal based on its implicit
consideration of “all the circumstances” before it. See 370 U.S. at 634-35. In any event,
we are entitled to affirm a judgment where “the outcome is not in doubt.” See Garnett v.
(Continued)
35
In the circumstances of these proceedings, we are satisfied that the district court
did not abuse its discretion in dismissing the Amended Complaint. This Court has
previously upheld an involuntary dismissal under Rule 41(b) where the plaintiff “failed to
respond to a specific directive from the [trial] court.” See Ballard, 882 F.2d at 95. Our
reasoning in Ballard applies directly to the Amended Complaint’s multiple violations of
the Federal Rules and the applicable court orders. To start, the plaintiffs amended their
complaint beyond the leave authorized, in violation of Rule 15(a)(2) and the court’s order
of December 29, 2017. 10 Nor did the plaintiffs even attempt to show good cause for
those additional amendments, which Rule 16(b) requires after the entry of a scheduling
order. See Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008) (ruling
that “after the deadlines provided by a scheduling order have passed, the good cause
standard must be satisfied to justify leave to amend the pleadings”). 11 The plaintiffs
failed to substitute named parties for the John Doe agents and retained the John Doe
Remedi Seniorcare of Va., LLC, 892 F.3d 140, 142 (4th Cir.), cert. denied, 139 S. Ct. 605
(2018) (citing Singleton v. Wulff, 428 U.S. 106, 120 (1976)).
10
Indeed, because the plaintiffs failed to obtain leave for their various
amendments, the Amended Complaint was also “without legal effect” and thus “rightly
disallowed” by the district court. See Schmidt v. United States, 749 F.3d 1064, 1069
(D.C. Cir. 2014); acc. Angles v. Dollar Tree Stores, 494 F. App’x 326, 329 (4th Cir.
2012).
11
The only argument pursued by the plaintiffs in the district court to defend their
addition of the Verizon defendants in the Amended Complaint was that those entities
were proper substitutes for the John Doe agents. That position was not supported by the
plaintiffs’ allegations and was justifiably rejected.
36
defendants in the Amended Complaint, in violation of the court’s December 29, 2017
order. The plaintiffs also renamed the United States as a defendant, in direct violation of
the court’s order of November 16, 2017. Lastly, the Amended Complaint improperly
sought to resurrect Counts 4, 7, and 8 of the Consolidated Complaint, which the court had
dismissed with prejudice months earlier.
Providing further context for the Second Dismissal, the district court and the
magistrate judge had both repeatedly warned the plaintiffs to focus on identifying the
John Doe agents prior to the February 5, 2018 deadline. See Ballard, 882 F.2d at 95
(considering warning issued by magistrate judge in assessing 41(b) dismissal). Contrary
to the view of our dissenting colleague, the record simply fails to show that the plaintiffs
acted “diligently” in pursuing that discovery. See post at 43. Rather, they filed a single
motion to compel, which the magistrate judge promptly ruled on. And the magistrate
judge then authorized depositions of Verizon employees which the plaintiffs never took.
Prior to that motion to compel, there were significant periods of inactivity by the
plaintiffs, compounded by (unopposed) extensions sought by the defendants. See Davis
v. Williams, 588 F.2d 69, 70-71 (4th Cir. 1978) (sustaining 41(b) dismissal where two-
year litigation reflected “long history of delay” and plaintiff’s counsel “refused to take
the initiative”).
This is not a situation where a plaintiff’s lawyer has briefly failed to comply with a
court’s order without any participation of or blame on his client. Cf. Hillig, 916 F.2d at
174 (reversing 41(b) dismissal in part because counsel’s noncompliance spanned only
three months, resulted from miscommunication, and was not known to client); Reizakis,
37
490 F.2d at 1134-35 (reversing 41(b) dismissal because lack of trial preparation resulted
from miscommunication between retained counsel and local counsel despite plaintiff’s
steps in anticipation of trial). Nor does this litigation involve a pro se or incarcerated
inmate who had limited opportunities to “follow the progress of his case.” Cf. Doyle, 938
F.2d at 35. Courts should — and regularly do — take such realities into account. These
plaintiffs were well represented and free to fully prosecute their case.
In sum, the plaintiffs contravened multiple rules and court orders while failing to
alert the district court to any problems justifying their actions. And they acted in the face
of explicit instructions from the court and the magistrate judge. Those circumstances
support the dismissal with prejudice of their claims under Rule 41(b). See Ballard, 882
F.2d at 94-95; acc. Thomas v. Arn, 474 U.S. 140, 147 (1985) (observing that if petitioner
“failed to comply with a scheduling order” court “could certainly dismiss the appeal”). 12
On this record, we cannot rule that the court abused its discretion in dismissing the
Amended Complaint.
2.
The foregoing analysis applies equally to the plaintiffs’ claims against the John
Doe agents and suffices to affirm the district court’s dismissal thereof. That said, the
dismissal of the Doe defendants is also supported by Rule 4(m) of the Federal Rules of
12
The dismissal of the plaintiffs’ claims is with prejudice except as to the John
Doe agents, as explained further herein.
38
Civil Procedure. 13 Rule 4(m) requires the dismissal of defendants who remain unserved
ninety days after the filing of a complaint unless “the plaintiff shows good cause.” The
plaintiffs failed to show good cause in the district court, nor do we discern any on this
record. As with other procedural dismissals, we review a dismissal under Rule 4(m) for
abuse of discretion. See Shao v. Link Cargo (Taiwan) Ltd., 986 F.2d 700, 708 (4th Cir.
1993) (reviewing Rule 4(m)’s predecessor — Rule 4(j) — for abuse of discretion).
Generally, for purposes of Rule 4(m), “good cause” requires some showing of
diligence on the part of the plaintiffs. Put conversely, good cause generally exists when
the failure of service is due to external factors, such as the defendant’s intentional evasion
of service. See Mann v. Castiel, 681 F.3d 368, 374 (D.C. Cir. 2012) (collecting cases and
commentary). While “good cause” is a flexible standard, diligence provides a touchstone
for an appellate court that is reviewing a dismissal under Rule 4(m). See, e.g., Cardenas
v. City of Chicago, 646 F.3d 1001, 1007 (7th Cir. 2011) (emphasizing that “the district
court retained its discretion to hold the Plaintiffs accountable” for their “inaction” by
“dismissing the case”); McCurdy v. Am. Bd. of Plastic Surgery, 157 F.3d 191, 196-97 (3d
Cir. 1998) (affirming Rule 4(m) dismissal where plaintiff did not show diligence in
timely serving defendants and failed to seek extension of time before deadline lapsed).
Whatever the minimum requirement for good cause may be, the plaintiffs have
failed to show it. The facts that support the dismissal of the Amended Complaint under
13
We are satisfied that the district court implicitly relied on Rule 4(m) in
dismissing the John Doe defendants. The Second Dismissal emphasized the plaintiffs’
failure to identify or serve those defendants, and their lack of progress in that regard.
39
Rule 41(b) also show the plaintiffs’ lack of diligence for purposes of Rule 4(m). The
plaintiffs’ significant periods of inactivity during three full years of litigation, their
persistence in unjustifiably broad discovery requests despite repeated admonishments of
the district court and the magistrate judge, and their decisions not to present additional
difficulties with discovery to the court, show a lack of diligence in pursuit of their claims.
See Scott v. Hern, 216 F.3d 897, 912 (10th Cir. 2000) (affirming dismissal under Rule
4(m) where plaintiffs failed to pursue authorized discovery against unnamed defendants);
Figueroa v. Rivera, 147 F.3d 77, 82-83 (1st Cir. 1998) (affirming Rule 4(m) dismissal of
John Doe defendants after seventeen months during which plaintiffs made no effort to
identify them); Shao, 986 F.2d at 708 (affirming dismissal under Rule 4(m)’s predecessor
where, after two extensions to service deadline, plaintiff showed no progress).
Our good dissenting colleague overstates our precedent by contending that a court
may dismiss a suit for failure to name a John Doe defendant “only ‘if it does not appear
that the true identity of an unnamed party can be discovered through discovery or through
intervention by the court.’” See post at 56 (quoting Schiff v. Kennedy, 691 F.2d 196, 198
(4th Cir. 1982)). Our decision in Schiff merely explained that “if it does not appear” that
the unnamed party could be identified, then “the court could dismiss the action without
prejudice.” See 691 F.2d at 198 (emphasis added). In fact, the Schiff decision repeatedly
emphasized that, as to John Doe defendants, the “district court is in a better position than
we now are to ascertain what treatment should be given, and when.” Id. Judge
Widener’s fine opinion for the Schiff panel thus deferred to the district court as to
“whether the case against Doe should be now permitted to proceed or whether the case at
40
this stage should be terminated.” Id. We will adhere to that good example and defer to
the wisdom of the district judge in dismissing the John Doe defendants.
That said, pursuant to Rule 4(m), and consistent with this Court’s prior treatment
of Doe defendants, the dismissal of the John Doe agents must be without prejudice. See
Fed. R. Civ. P. 4(m) (“If a defendant is not served within 90 days after the complaint is
filed, the court . . . must dismiss the action without prejudice against that defendant[.]”);
see also Schiff, 691 F.2d at 198 (“Should the district court persist in its dismissal of Doe
without further proceedings, the dismissal will be without prejudice.”). That rule flows
from the principle that a court generally lacks personal jurisdiction over unserved parties.
See, e.g., Koehler v. Dodwell, 152 F.3d 304, 306 (4th Cir. 1998) (“Absent waiver or
consent, a failure to obtain proper service on the defendant deprives the court of personal
jurisdiction over the defendant.”). With that clarification, we are satisfied to affirm
without prejudice the John Doe dismissals.
IV.
Pursuant to the foregoing, we affirm the dismissals of Holder and Donahoe with
prejudice; we affirm the dismissal of the Amended Complaint and the parties named
therein with prejudice; and we affirm the dismissal of the unnamed John Doe agents
without prejudice.
AFFIRMED
41
WYNN, Circuit Judge, concurring in part
1
and dissenting in part:
“When we saw the fours go up, game’s over.”
—David Chadwick, Forward, University of North Carolina, 1967–71 2
Beginning in the late 1960s, when the University of North Carolina Tar Heels
seized the lead in the second half of a basketball game, Hall of Fame head coach Dean
Smith would raise his arm and put up four fingers. Requiring no further instruction, two
post players would run to the two corners of the court formed by the baseline and the
sidelines, and two wing players would move to the corners formed by the mid-court line
and the sidelines. The point guard—most famously, Phil Ford—would then dribble the
ball at the top of the key as the clock ticked down, occasionally exchanging the ball with
one of the wing or post players if the defense applied too much pressure. In this
offense—commonly referred to as the “Four Corners”—the clock was the Tar Heels’ best
friend. The longer the Tar Heels held the ball on offense, the less time their opponent
had to try to score and cut into the Tar Heels’ lead. The Four Corners proved so
successful that college basketball’s powers-that-be effectively outlawed it through the
adoption of the shot clock in 1985.
1
I concur in the majority opinion’s judgment that the district court properly
dismissed Attkisson’s claims against the former Attorney General and former Postmaster
General. I believe that Attkisson failed to plausibly allege that the former Attorney
General and former Postmaster General were involved in any potential violation of
Attkisson’s constitutional or statutory rights.
2
Brendan Marks, With Four Corners Offense, Dean Smith Changed Basketball,
Daily Tar Heel (Feb. 9, 2015), https://www.dailytarheel.com/article/2015/02/with-four-
corners-offense-dean-smith-changed-basketball.
42
In this case, the government—not unlike Dean Smith’s Tar Heels—put up the
“fours” when Plaintiff-Appellant Sharyl Attkisson, 3 a journalist formerly employed by
CBS News, filed suit against unnamed employees and agents of the federal government
(the “Doe Defendants”). Attkisson alleged that the Doe Defendants conspired to violate
her constitutional and statutory rights by accessing and commandeering her home and
work internet-connected devices for surveillance purposes. But Attkisson never got a
meaningful opportunity to pursue her claims because the government did everything in its
power to run out the clock on Attkisson’s action—it filed motions challenging venue and
jurisdiction, motions challenging the sufficiency of service, motions for extension of
time, motions to dismiss, and motions for protective orders.
And just as the Tar Heels had great success running the Four Corners, the
government’s strategy worked. Although Attkisson diligently sought to identify the Doe
Defendants for nearly four years—including by repeatedly serving discovery on the
government and third-parties directed at identifying the Doe Defendants—the district
court dismissed her case with prejudice against the Doe Defendants for failing to comply
with a court order to identify the names of the Doe Defendants by a date certain. The
district court did so even though the government’s delaying tactics deprived Attkisson of
any meaningful opportunity to engage in the discovery necessary to identify the Doe
Defendants.
3
Attkisson’s husband, James, and daughter, Judith, are also named plaintiffs
because the alleged intrusions and commandeering of the Attkissons’ home computers
and devices allegedly violated their statutory and constitutional rights as well.
43
The majority opinion affirms the district court’s dismissal of Attkisson’s claims
against the Doe Defendants on grounds that the dismissal constituted a permissible
exercise of the court’s discretion to oversee discovery and sanction a party for failing to
comply with a court order. But this Court long has held that plaintiffs—like Attkisson—
who state a plausible claim that unnamed defendants violated their constitutional or
statutory rights are entitled to a meaningful opportunity to engage in discovery aimed at
identifying the “true identity of an unnamed party.” Schiff v. Kennedy, 691 F.2d 196,
197–98 (4th Cir. 1982). And this Court has held that dismissal of an action for failure to
comply with a court order is a “drastic” sanction, Hillig v. C.I.R., 916 F.2d 171, 174 (4th
Cir. 1990), that courts should impose only in “extreme circumstances,” Reizakis v. Loy,
490 F.2d 1132, 1135 (4th Cir. 1974).
Because the government deprived Attkisson of a meaningful opportunity to
identify the Doe Defendants and the district court never determined that the requisite
“extreme circumstances” were present to warrant dismissal for failure to comply with a
court order, I disagree with the majority opinion’s determination that the district court
permissibly exercised its discretion in dismissing Attkisson’s claims against the Doe
Defendants. Not only should we disapprove of the tactics the government used to run out
the clock on Attkisson’s claims, but we should also reject the troubling “game plan” it
provided for the government and private parties to prevent disclosure of—and, therefore,
responsibility for—their potentially unconstitutional or illegal electronic surveillance
activities. Accordingly, I respectfully dissent as to the dismissal of Attkisson’s claims
against the Doe Defendants.
44
I.
A.
Because the district court dismissed Attkisson’s action prior to meaningful
discovery, the relevant allegations, which this Court must accept as true, are set forth in
Attkisson’s complaint. At the time of the events giving rise to her claim, Attkisson had
been working as an investigative reporter for CBS News for 20 years. In early 2011,
Attkisson began reporting on the “Fast & Furious” initiative, under which the Bureau of
Alcohol, Tobacco, and Firearms (“ATF”) purposely allowed firearms dealers to sell
marked weapons to straw buyers, in anticipation that the weapons would later be sold to
Mexican drug cartels, thereby facilitating the identification and apprehension of key
figures in the cartels. CBS aired a report on the Fast & Furious program on February 22,
2011. That report quoted and relied on confidential sources procured by Attkisson.
Attkisson continued to report the story, which the Department of Justice initially denied,
over the next several months. According to the complaint, Attkisson’s sources within
ATF told Attkisson “that the [a]gency was actively seeking to identify government
insiders who were providing information or ‘leaking’ to her and CBS.” J.A. 123.
In October 2011, the government’s Fast & Furious program came under renewed
scrutiny when law enforcement officers found weapons distributed through the Fast &
Furious program at several crime scenes, including the scene of the murder of an ATF
agent. That fall, Attkisson “began to notice anomalies in numerous electronic devices at
their home in Virginia.” J.A. 124. According to the complaint, Attkisson’s home and
work computers would turn on and off at random, her house’s alarm would “chirp[] daily
45
at different times,” and her phone and television experienced problems. J.A. 124. All the
affected devices were connected to the Internet via Verizon’s fiber optic service, FiOS.
Verizon failed to cure the problems, despite making multiple attempts over a period of
more than a year, including through installation of a new router. J.A. 124.
During 2012, Attkisson continued to experience “anomalies” with her internet-
connected devices, which anomalies Attkisson repeatedly reported to Verizon, friends,
and business associates. In December 2012, one of Attkisson’s “contact[s] with U.S.
government intelligence experience” inspected Attkisson’s home and found an “extra”
fiber optic cable “dangling” from Attkisson’s exterior Verizon box. J.A. 129. After
Attkisson contacted Verizon regarding the “extra” cable, “a person represented to be a
Verizon technician” visited Attkisson’s home on January 1, 2013 and removed the cable.
J.A. 129. According to the complaint, notwithstanding that Attkisson told the technician
to leave the cable, it disappeared. Over the next week, the Attkissons continued to
experience problems with their internet service, which Verizon repeatedly, but
unsuccessfully, tried to resolve.
On January 8, 2013, “an individual with special expertise in computer forensics”
conducted a forensic examination of Attkisson’s laptop. J.A. 130. The expert reported
that the “laptop showed clear evidence of outside and unauthorized ‘intrusion,’ that the
sources of the intrusion were state-supported due to the sophisticated nature of the
technology used,” and that “the software fingerprint indicated that the software was
proprietary to the federal government.” J.A. 130. According to the forensic analysis
report, “[t]he intrusion included, among other surveillance, keystroke monitoring,
46
exfiltration of data, audio surveillance of [Attkisson’s] conversations and activities at
home by activating Skype, mining personal passwords, monitoring work and personal
email, and probable compromise of [Attkisson’s] work and personal smartphones.” J.A.
130. “The report also stated the intruders had accessed CBS network systems . . . and
that the perpetrator had also place three (3) classified documents deep in the computer’s
operating system.” J.A. 130. The forensic analysis determined that the intrusion began
as early as June 2011 and traced the intrusion to an Internet Protocol (“IP”) “address
owned, controlled, and operated by the United States Postal Service,” which “has been
publicly reported, including in [Inspector General] internal audits, to have a working
relationship with the FBI, Department of Homeland Security, and [the Department of
Justice] for domestic surveillance projects.” J.A. 125, 134.
Several days later, Attkisson notified CBS, which hired an “independent forensic
computer analyst” to inspect Attkisson’s home and internet-connected devices. J.A. 131.
That forensic investigation, conducted on February 2, 2013, found that Attkisson’s work
and home computers had been subjected to a “coordinated, highly-skilled series of
actions and attacks directed at the operation of the computers and the storage of data
thereon.” J.A. 131. Several days after that second investigation, Attkisson’s desktop
computer began to malfunction, shut down, emitted a “burning odor,” and was rendered
permanently inoperable. J.A. 131. The complaint further alleges that Attkisson’s
BlackBerry, which was connected to the Verizon network, also was compromised.
On June 11, 2013, CBS issued a public statement, reporting that Attkisson’s
computer had been accessed using “sophisticated methods” by an unauthorized party on
47
multiple occasions. J.A. 132. The independent security firm hired by CBS to analyze
Attkisson’s computer publicly confirmed that report. The government issued a statement,
stating that to its “knowledge, the Justice Department has never compromised Ms.
Attkisson’s computers, or otherwise sought any information from or concerning any
telephone, computer or other media device she may own or use.” J.A. 131.
B.
On December 30, 2014, Attkisson brought a Bivens action under the First and
Fourth Amendments against named and unnamed federal defendants in the Superior
Court for the District of Columbia. The government removed the case to the U.S. District
Court of the District of Columbia. Within two months of first filing suit, Attkisson
sought leave of the court “to serve limited, immediate discovery . . . to determine the true
[identities] of the Doe Defendants.” J.A. 8. Attkisson argued that “good cause” existed to
afford such discovery because she could not further prosecute her action until she
identified the Doe Defendants.
The government opposed Attkisson’s discovery request for two reasons: (1) none
of the defendants—named or unnamed—had been served and therefore the parties could
not, according to the government, conduct a Rule 26 discovery conference and (2)
because the case “implicate[d] qualified immunity issues, . . . the Court should resolve
those issues and similar preliminary issues before any discovery occurs.” Defs.’ Opp. To
Pls.’ Mot. to Expedited Disc., Attkisson v. Holder, No. 15-238 (March 3, 2015), ECF No.
11 (emphasis added). The government’s position, therefore, was tantamount to asserting
that early discovery should never be available in a Bivens case against unnamed
48
defendants. The government opposed Attkisson’s requested discovery pertaining to the
identity of the Doe Defendants, even as it simultaneously denied—and continues to
deny—that it represents the Doe Defendants. The district court denied without prejudice
Attkisson’s request for expedited discovery on grounds that Attkisson had not yet
completed service of the named defendants and that the discovery request was
“overbroad” because Attkisson had not provided an “explanation of precisely what
discovery [she] seeks to take.” J.A. 8.
On March 20, 2015, having completed service of the named defendants, Attkisson
again moved for expedited discovery. To respond to the district court’s concern
regarding the scope of the discovery she sought, Attkisson attached twenty-one
interrogatories and three requests for production. The interrogatories sought “[t]he
identity of any person” who had knowledge as to the various specific types of electronic
incursions allegedly perpetrated between 2011 and 2013 “on computers owned or
operated by Ms. Attkisson”—including “remotely altering computer VPN settings,”
“smbclient,” “kcpassword,” “kickstart,” and “use of Intel AMT software.” Pls.’ Renewed
Mot. for Expedited Disc. 3–5, Attkisson v. Holder, No. 15-238 (March 20, 2015), ECF
No. 21-1. The interrogatories also sought the “identity and contact information of all
persons” who had “access to,” “us[ed],” and were “responsible for maintaining,
monitoring, securing, and otherwise controlling” the Postal Service-owned IP address the
forensic analysis connected to the incursions. Id. at 5–6.
Less than a month later, the government moved to dismiss and again opposed
Attkisson’s request for expedited discovery, asserting that her discovery requests were
49
both too numerous and not “narrowly tailored” to identifying the Doe Defendants.
Attkisson filed an amended complaint on April 30, 2015. On July 6, 2015, the district
court denied Attkisson’s second request for expedited discovery. The next day, the
government again moved to dismiss. Concurrently, Attkisson served notices of
depositions and subpoenas on several third parties, including the United States Postal
Service, seeking testimony and documents pertaining to the IP address identified in the
forensic analysis so as to identify the Doe Defendants.
In October 2015—after Attkisson repeatedly and unsuccessfully sought the
government’s voluntary compliance with her discovery requests—Attkisson moved the
district court to compel compliance with those requests. The government successfully
sought several extensions of time, eventually filing on December 7, 2015, a brief in
opposition to the motion to compel and a motion for protective order. Conceding that
Attkisson’s discovery sought “to uncover the identities of the ‘Unknown Federal Agents’
or ‘Doe defendants’”—i.e., that the discovery requests were tailored to the appropriate
issue—the government argued that Attkisson could not obtain such discovery because, in
part, “there [wa]s no evidence that Plaintiffs have conferred with the remaining ‘Doe’
defendants in this case for purposes of discovery,” which, according to the government,
Federal Rule of Civil Procedure 26 required. Third-Party U.S. Postal Serv.’s Opp. To
Pls.’ Mot. to Compel And Mot. to Quash Subpoena and/or for Protective Order 13,
Attkisson v. Holder, No. 15-238 (Dec. 7, 2015), ECF No. 47. Put differently, the
government took the position that Attkisson could not obtain discovery to identify the
50
Doe Defendants because she had not engaged in a Rule 26 conference with the
unidentified Doe Defendants.
The parties engaged in additional briefing regarding Attkisson’s motion to compel
during the first half of 2016, with the government successfully obtaining several deadline
extensions. On July 28, 2016—and still without Attkisson having had an opportunity to
conduct any discovery—the district court consolidated Attkisson’s Bivens action with a
separate action under the Federal Tort Claims Act that Attkisson had brought against
several parties, including the United States, related to the same alleged conduct. When it
consolidated the two actions, the district court dismissed Attkisson’s pending discovery
motions in the Bivens action as moot. Attkisson moved the district court to reconsider its
dismissal of her motion to compel, which the government again opposed. Around the
same time, the government filed a third motion to dismiss. On March 19, 2017, the
District of Columbia district court denied, without prejudice, the government’s motion to
dismiss and transferred the case to the U.S. District for the Eastern District of Virginia,
again denying Attkisson’s motion to compel as moot.
On July 26, 2017—after waiting nearly four months for the court to assign a judge
to her case and only eight days after that assignment 4—Attkisson again sought to compel
compliance with her previously served discovery requests. In early August 2017—and
after obtaining several more deadline extensions—the government filed a brief in
4
Because the parties had to wait several months for the appointment of a judge,
Attkisson bears no responsibility for the inaction in the case between March and July
2017 highlighted in the majority opinion. Ante at 13–14.
51
opposition to Attkisson’s renewed motion to compel and a fourth motion to dismiss, this
time for failure to state a claim and for lack of jurisdiction. On September 1, 2017, a
magistrate judge denied Attkisson’s motion to compel without prejudice.
The district court directed Attkisson to file a consolidated complaint, which she
filed on September 18, 2017. That eight-count complaint, which names the Doe
Defendants as defendants, asserted Bivens claims under the First and Fourth Amendments
and violations of the Electronic Communications Privacy Act (“ECPA”), the Stored
Communications Act, the Computer Fraud and Abuse Act, the Foreign Intelligence
Surveillance Act, and the Virginia Computer Crimes Act, as well common law trespass to
chattel and land claims. On September 22, 2017, the parties filed a joint discovery plan.
Notwithstanding that the discovery plan purported to establish a January 12, 2018,
deadline for completion of discovery, the government made clear in a footnote its
position that “discovery—including discovery not specifically directed at the individually
sued government officials—may not proceed in this action” until the district court ruled
on the government’s motion to dismiss. Joint Proposed Disc. Plan, Attkisson v. Holder,
No. 1:17-cv-00364 (Sept. 22, 2017), ECF No. 123 (emphasis added).
Within two weeks of the filing of the consolidated complaint, the district court
issued an opinion and order dismissing most, but not all, of Attkisson’s claims. Attkisson
v. Holder, No. 1:17-CV-364, 2017 WL 5013230 (E.D. Va. Nov. 1, 2017). Of particular
relevance to this dissent, the district court did not dismiss Attkisson’s Bivens and ECPA
claims against the Doe Defendants. Id. at *1.
52
Following the district court’s motion-to-dismiss order, Attkisson sought
testimonial and documentary discovery from numerous federal agencies as well as
Verizon’s Virginia subsidiary. For example, Attkisson noticed a deposition of the Postal
Service pursuant to Rule 30(b)(6), requesting that the Postal Service make available for
deposition “one or more persons” to testify as to the “ownership and control” of two
specific IP version 4 (“IPv4”) addresses that Attkisson’s forensic analyses identified were
used in the alleged intrusions. In particular, Attkisson sought testimony regarding “[w]ho
was responsible for managing, tracking, and monitoring these IPv4 addresses within the
Postal Service”; “[w]hat persons or organizations were permitted access to or use of the
IPv4 address in the designated time frame”; “[a]ny and all records, logs, or other form of
identification material that will or may assist in identifying what person or persons
provided for each such use of these IPv4 addresses during the referenced time frame”;
and “[a]ny and all records, logs, or other form of identification material that will or may
assist in identifying the operational use of these IPv4 addresses.” J.A. 209–10.
The government consented to a limited deposition of a United States Postal
Service employee regarding the IPv4 addresses identified in the forensic analysis, which
deposition revealed that Verizon contracted with the Postal Service to provide network
services and identified twelve other IP addresses connected to the alleged incursion. But
otherwise the government and Verizon successfully moved for a protective order on
overbreadth grounds. Thereafter—and in accordance with the position it took in the Joint
Discovery Plan—the government sought a stay of all discovery pending resolution of its
anticipated (renewed) motion to dismiss.
53
On December 1, 2017, a magistrate judge entered a revised scheduling order
directing Attkisson “to substitute named parties for the Doe Defendants no later than
January 5, 2018 at 10:00 a.m.” J.A. 259. In an order entered December 29, 2017, the
district court extended that deadline until February 5, 2018, emphasizing that “[t]his
extension is the final extension that plaintiffs will receive because the interests of judicial
economy and fairness to third parties and potential future defendants dictate that plaintiffs
move forward with this litigation in as timely a fashion as possible.” J.A. 274–75.
Thereafter, Attkisson reserved discovery against the federal agencies and Verizon,
and moved to compel. Verizon again moved for a protective order. J.A. 276. The
magistrate granted in part the motion for protective order, allowing Attkisson to conduct
a 30(b)(6) deposition of Verizon employee as to the twelve Verizon-linked IP addresses
identified in the Postal Service deposition. The magistrate rendered that determination
because he concluded that, at that stage of the litigation, discovery should be “limited to
trying to identify the Doe [D]efendants,” with liability discovery “com[ing] later.” J.A.
512. The government also continued to resist Attkisson’s discovery requests on
overbreadth grounds, maintaining that it was obliged to permit discovery only of “readily
available” information pertaining to the identities of the Doe Defendants. J.A. 521. At a
January 12, 2018 hearing—less than a month before the district court’s deadline for
Attkisson to identify the Doe Defendants—the magistrate denied without prejudice
Attkisson’s motion to compel on grounds that it appeared that the parties were moving
towards an agreed-on discovery plan related to identifying the Doe Defendants. J.A. 524.
54
On February 5, 2018, Attkisson filed a proposed amended complaint that
continued to list John Doe federal employee and agent defendants, but also added new
causes of action and several Verizon-affiliated entities, the United States of America, and
the Federal Bureau of Investigation as defendants. In an order entered May 15, 2018, the
district court denied Attkisson leave to amend and dismissed Attkisson’s pending action
against the Doe Defendants with prejudice. The Court held that dismissal was warranted
because Attkisson’s proposed complaint failed to offer substitutes for the Doe
Defendants, as its December 29, 2017 order required, and, also in contravention of that
order, added new defendants without seeking the court’s leave. As to the Doe
Defendants, in particular, the court stated:
Since 2014 when the plaintiffs’ first complaint was filed, none of the John
Doe defendants has been identified or served and plaintiffs have made no
substantial progress in identifying them. As such, the time has come to end
this litigation against them as well and for this reason, the claims against
them are also dismissed by this Order.
J.A. 669. Attkisson timely appealed.
II.
Attkisson argues that the district court erred in dismissing her claims against the
Doe Defendants. Although its order is not a model of clarity, the district court appears to
have dismissed those claims for two related reasons: (A) Attkisson failed to make
“substantial progress” in identifying the Doe Defendants and (B) Attkisson failed to
comply with the court’s order to substitute named parties for the Doe Defendants by
February 5, 2018. I do not believe that either purported failure justified the district
court’s decision to dismiss Attkisson’s claims against the Doe Defendants.
55
A.
“Ordinarily a tort victim”—like Attkisson—“who does not know who the
tortfeasor is cannot sue.” Billman v. Ind. Dep’t of Corrs., 56 F.3d 785, 789 (7th Cir.
1995). But this Court and other courts long have recognized that if a tort complaint
plausibly alleges that an unnamed defendant is an “actual” person or entity, then an
action may “proceed against real, but unidentified, defendants.” Schiff, 691 F.2d at 197
(citing Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)).
In such cases, a district court should dismiss the action on grounds that the plaintiff failed
to allege the defendant’s true identity only “if it does not appear that the true identity of
an unnamed party can be discovered through discovery or through intervention by the
court.” Id. at 198; see also Davis v. Kelly, 160 F.3d 917, 921 (2d Cir. 1998) (collecting
cases); Billman, 56 F.3d at 789 (holding that a plaintiff’s “initial inability to identify the
injurers is not by itself a proper ground for the dismissal of the suit”); Munz v. Parr, 758
F.2d 1254, 1257 (8th Cir. 1985) (“Dismissal is proper only when it appears that the true
identity of the defendant cannot be learned through discovery or the court’s intervention.”
(emphasis added)).
Courts allow plaintiffs to sue unnamed tortfeasors—and, in appropriate
circumstances, engage in early discovery to identify the true identity of those alleged
tortfeasors—when, as here, a plaintiff lacks the capacity to identify the names of the
tortfeasors absent the power of the courts. For example, courts allow an injured party to
sue an unnamed tortfeasor when circumstances outside the injured party’s control posed
obstacles to the injured party identifying the tortfeasor prior to filing suit. See, e.g.,
56
Billman, 56 F.3d at 789 (holding that a prison inmate was entitled to discovery when his
conditions of confinement rendered it difficult, if not impossible, for him to identify the
alleged tortfeasor prior to suit). Likewise, courts allow an injured party to sue an
unnamed tortfeasor when the allegedly tortious conduct, by its nature, conceals the
identity of the tortfeasor. See, e.g., id. (noting that when “the plaintiff has been injured as
the consequence of the actions of an unknown member of a collective body, identification
of the responsible party may be impossible without pretrial discovery”); Columbia Ins.
Co. v. seescandy.com, 185 F.R.D. 573, 578 (N.D. Cal. 1999) (noting that when a plaintiff
is injured by a tortious act allegedly committed via the internet by a “pseudonymous[] or
anonymous[]” party, the plaintiff is “likely to find [her]self chasing the tortfeasor from
Internet Service Provider (ISP) to ISP, with little hope of actually discovering the identity
of the tortfeasor” absent compulsory judicial discovery).
Considering this precedent, the district court abused its discretion in dismissing
Attkisson’s action against the Doe Defendants without providing Attkisson with a
meaningful opportunity to engage in discovery to determine their true identity. To begin,
Attkisson’s operative complaint—which we must accept as true—includes sufficient non-
conclusory allegations against the Doe Defendants to state a Fourth Amendment Bivens
claim and a claim under the ECPA. The complaint recites at length, and with factual
specificity, the technical “anomalies” Attkisson experienced with her internet connected
devices. The complaint also discusses with factual specificity the various forensic
analyses of Attkisson’s devices conducted by security consultants—including a security
consultant hired by CBS—revealing that those devices had been compromised and
57
commandeered. The forensic analyses further revealed that those incursions included
searching records stored on Attkisson’s devices, monitoring Attkisson’s electronic
communications, and using Attkisson’s internet connected devices to listen to her
conversations at home. According to the complaint, those forensic analyses concluded
that the intrusions were “sophisticated”—and therefore “state-sponsored”—and derived
from IPv4 addresses owned, controlled, and operated by the government, and the Postal
Service, in particular.
Based on those allegations, it is “plausible” that the government—and/or a private
entity operating on the government’s behalf—searched and commandeered Attkisson’s
devices and infringed on her right to privacy, in violation of the Fourth Amendment. See
Buonocore v. Harris, 65 F.3d 347, 356 (4th Cir. 1995) (“[T]he special protection to be
afforded a person’s right to privacy within his own home has also been continuously and
consistently recognized by the Court. The right to ‘sanctity of private dwellings,’ has
been held to be the right ‘ordinarily afforded the most stringent Fourth Amendment
protection.’”). Likewise, the complaint adequately alleges that these same government
actors “intercepted” Attkisson’s electronic communications in violation of the ECPA. 18
U.S.C. § 2520.
Second, the allegations in the complaint render it plausible that “actual” persons—
i.e., the Doe Defendants—violated Attkisson’s constitutional and statutory rights. Schiff,
691 F.2d at 197. Put simply, the “sophisticated” nature of the intrusions; the broad
variety of alleged surveillance, including “keystroke monitoring, exfiltration of data,
audio surveillance of [Attkisson’s] conversations and activities at home by activating
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Skype, mining personal passwords, monitoring work and personal email, and probable
compromise of [Attkisson’s] work and personal smartphones,” J.A. 130; the years-long
duration of the anomalies and incursions, despite repeated efforts to resolve them; and the
efforts to hide evidence of the incursions provide factual support for the allegations that
“actual” persons perpetrated the alleged constitutional and statutory violations.
Additionally, in criminal proceedings, the government routinely argues—and
courts often agree—that when a specific IP address is used to perpetrate alleged
wrongdoing online there is a “fair probability”—i.e., probable cause—that the individual
or entity that owns or controls the IP address engaged in, or possesses evidence of, the
wrongdoing. See, e.g., United States v. Vosburgh, 602 F.3d 512, 526 & n.13 (3d Cir.
2010) (noting that “several Courts of Appeals have held that evidence that the user of a
computer employing a particular IP address possessed or transmitted child pornography
can support a search warrant for the physical premises linked to that IP address”); United
States v. Perrine, 518 F.3d 1196, 1201–04 (10th Cir. 2008). Attkisson’s complaint
identified two specific IPv4 addresses owned and controlled by the government that were
used to perpetrate the alleged unlawful surveillance. Accordingly, the complaint
established that it is plausible that the individuals employed by, or acting on behalf of, the
government who used and maintained those IPv4 addresses perpetrated the allegedly
unlawful surveillance or have information that will facilitate identification of the
individuals responsible for perpetrating the wrongdoing.
Third, there was no basis for the district court to determine that “the true identity
of [the Doe Defendants could not] be discovered through discovery or through
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intervention by the court.” Schiff, 691 F.2d at 198. Indeed, the government itself
routinely uses IP addresses to identify unknown wrongdoers. For example, the
government uses IP addresses as the starting point to identify unknown individuals who
possess or share child pornography. See, e.g., Vosburgh, 602 F.3d at 526 & n.13
(collecting cases); United States v. Bynum, 604 F.3d 161, 162–63 (4th Cir. 2010).
Likewise, private parties such as copyright holders frequently use IP addresses to identify
unknown defendants who allegedly engage in online copyright infringement. See, e.g.,
Purzel Video GmbH v. St. Pierre, 10 F. Supp. 3d 1158, 1164 (D. Colo. 2014); Malibu
Media, LLC v. Roldan, No. 8:13-cv-3007, 2014 WL 3805494, at *1 (M.D. Fla. Aug. 1,
2014); Loud Records LLC v. Minervini, 621 F. Supp. 2d 672, 676 (W.D. Wisc. 2009).
Given that the government as well as private parties successfully use IP addresses to
identify wrongdoers in other contexts, there is no reason to believe that pre-trial
discovery would not allow Attkisson to use the IPv4 addresses to identify the true identity
of the Doe Defendants.
To be sure, the government is a “collective body,” rather than a single user, which
may somewhat complicate the process for identifying which, if any, government
employees perpetrated the allegedly unlawful surveillance of Attkisson’s devices.
Billman, 56 F.3d at 789. But the difficulty a plaintiff faces in identifying pre-filing a
particular wrongdoer that works for a multi-member organization, like the government, is
one of the reasons courts allow a plaintiff to sue unnamed wrongdoers and to use pre-trial
discovery to identify the wrongdoers’ identities. Id.; see also Palmer v. Bd. of Educ. of
Cmty. Unit Sch. Dist. 201-U, Will Cnty., Ill., 46 F.2d 682, 688 (7th Cir. 1995) (holding
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that the district court erred in dismissing plausible claim against unnamed governmental
employees because “[w]hen a collective body . . . takes a complex series of actions over a
span of years, it may be difficult to pin down individual responsibility without
discovery”). That is particularly true when, as here, members of a collective body
allegedly perpetrate a wrong using the Internet, which allows wrongdoers to “act
pseudonymously and anonymously,” and thereby evade legal liability absent an injured
party’s use of discovery to determine the wrongdoers’ identity. Columbia Ins., 185
F.R.D. at 578.
Finally, the district court failed to afford Attkisson a meaningful opportunity to
engage in discovery to determine the true identity of the Doe Defendants.
Notwithstanding that Attkisson repeatedly served discovery on the government and
repeatedly moved the district court to compel the government to comply with the
discovery requests, the sum of the discovery Attkisson obtained from the government
during the four years her case was pending was a limited deposition of a single Postal
Service employee. The government never turned over any documents in response to
Attkisson’s subpoenas, nor did it answer any interrogatories. In such circumstances,
Attkisson should not be faulted for failing to identify the Doe Defendants.
The district court refused to compel the government to comply with Attkisson’s
discovery requests because it believed that some of the requests were unrelated to the
identification of the Doe Defendants. But most of Attkisson’s requests sought
information directly related to the identities of the Doe Defendants, including “[w]ho was
responsible for managing, tracking, and monitoring these IPv4 addresses within the
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Postal Service”; “[w]hat persons or organizations were permitted access to or use of the
IPv4 address in the designated time frame”; “[a]ny and all records, logs, or other form of
identification material that will or may assist in identifying what person or persons
provided for each such use of these IPv4 addresses during the referenced time frame”;
and “[a]ny and all records, logs, or other form of identification material that will or may
assist in identifying the operational use of these IPv4 addresses.” J.A. 209–10. And
Attkisson’s request for “[t]he identity of any person” who had knowledge regarding the
various specific types of electronic incursions allegedly perpetrated against Attkisson’s
devices—including “remotely altering computer VPN settings,” “smbclient,”
“kcpassword,” “kickstart,” and “use of Intel AMT software”—also specifically related to
the identity of the Doe Defendants. Pls.’ Renewed Mot. for Expedited Disc., Attkisson v.
Holder, No. 15-238 (March 20, 2015), ECF No. 21-1. To the extent the district court
believed any of Attkisson’s other requests swept too broadly, it could have granted
Attkisson’s motion to compel only as to those requests bearing on the identity of the Doe
Defendants.
The district court also denied Attkisson’s final motion to compel because it
believed that the parties were working towards a consensual discovery plan. I do not
question the district court’s judgment that a consensual discovery plan is preferable to
court-ordered discovery. But at the time it denied Attkisson’s final motion to compel, the
court’s deadline for Attkisson to substitute names for the Doe Defendants was less than a
month away. Given the government’s longstanding opposition to affording Attkisson any
discovery—including its initial Kafkaesque position that Attkisson was not entitled to
62
obtain discovery regarding the identity of the Doe Defendants until Attkisson conducted a
Rule 26(d) discovery conference with the unidentified Doe Defendants and the
government’s later, equally unsupported position, which the magistrate judge rightly
rejected, that Attkisson was entitled to discover only whatever information the
government deemed “readily available”—and the court’s fast approaching substitution
deadline, it was incumbent on the district court to ensure that the government did not use
its ongoing discovery negotiations with Attkisson to run out the clock on her claims. Put
simply, the district court needed to either (1) toll its deadline until Attkisson and the
government reached an agreement as to a discovery plan that would allow Attkisson to
meaningfully pursue the identity of the Doe Defendants or (2) compel the government to
comply with Attkisson’s reasonable discovery requests in advance of the deadline. It did
neither; instead, it enforced its deadline even though Attkisson never obtained meaningful
discovery, effectively rewarding the government for its intransigence.
In sum, the district court reversibly erred when it dismissed Attkisson’s action
against the Doe Defendants for failing to identify their names. That conclusion accords
with the approach taken by our sister circuits, which have held that a district court abused
its discretion when—as here—it dismissed a plausible claim against an unnamed
defendant without allowing the plaintiff a meaningful opportunity to engage in discovery
to determine the defendant’s identity. See, e.g., Vohra v. Cnty. of Orange, 288 Fed.
App’x 395, 396 (9th Cir. 2008); Green v. Doe, 260 Fed. App’x 717, 719 (5th Cir. 2007);
Valentin v. Dinkins, 121 F.3d 72, 75–76 (2d Cir. 1997); Billman, 56 F.3d at 787–89.
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And there is more. The district court compounded its error in dismissing
Attkisson’s action against the Doe Defendants by failing to grant, at least in part,
Attkisson’s repeated motions to compel. In the context of allegedly tortious acts
committed over the Internet, in particular—like the Doe Defendants’ alleged unlawful
surveillance of Attkisson—courts have adopted several multi-factorial tests to guide a
district court’s analysis in determining whether to allow the plaintiff early or expedited
discovery to facilitate identification of an unnamed defendant.
For example, the Second Circuit has directed district courts to weigh “(1) the
concreteness of the plaintiff’s showing of a prima facie claim of actionable harm, (2) the
specificity of the discovery request, (3) the absence of alternative means to obtain the
subpoenaed information, (4) the need for the subpoenaed information to advance the
claim, and (5) the objecting party’s expectation of privacy.” See Arista Records, LLC v.
Doe 3, 604 F.3d 110, 119 (2d Cir. 2010) (internal alterations omitted) (citing Sony Music
Entm’t Inc. v. Does 1–40, 326 F. Supp. 2d 556, 564–65 (S.D.N.Y. 2004)). Other courts
apply similar tests. See, e.g., Columbia Ins., 185 F.R.D. at 578–80 (holding that a
plaintiff is entitled to early discovery targeted at identifying an unnamed defendant if the
plaintiff (1) “identif[ies] the missing party with sufficient specificity such that the Court
can determine that defendant is a real person or entity who could be sued in federal court;
(2) “identif[ies] all previous steps taken to locate the elusive defendant”; (3)
“establish[es] to the Court’s satisfaction that plaintiff’s suit against defendant could
withstand a motion to dismiss”; and (4) “file[s] a request for discovery with the Court,
along with a statement of reasons justifying the specific discovery requested as well as
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identification of a limited number of persons on whom discovery process might be served
and for which there is a reasonable likelihood that the discovery process will lead to
identifying information about the defendant that would make service of process
possible.”).
Here, the considerations other courts have deemed relevant supported awarding
Attkisson early discovery targeted at identifying the Doe Defendants. As explained
above, Attkisson plausibly alleged that unnamed defendants violated her constitutional
and statutory rights and that those defendants were “actual” individuals capable of
identification through discovery. The complaint also set forth several steps Attkisson had
taken to identify the perpetrators of the alleged violations, including obtaining multiple
forensic analyses of her devices, filing a complaint with the Department of Justice
Inspector General, allowing the government to inspect her laptop computer, and
submitting Freedom of Information Act requests. And even if a few requests were
somewhat overbroad, Attkisson served numerous discovery requests directly bearing on
the identity of the Doe Defendants. Finally, because information potentially relevant to
the identity of the Doe Defendants lies exclusively in the hands of the government—and
because her other efforts to identify the Doe Defendants had proven unsuccessful—
Attkisson established that she lacked alternative means to identify the Doe Defendants.
B.
The district court also dismissed Attkisson’s action against the Doe Defendants for
failure to comply with the court’s December 29, 2017, order that Attkisson substitute
names for the Doe Defendants on or before February 5, 2018. Federal Rule of Civil
65
Procedure 41(b) permits a district court to involuntarily dismiss an action if a plaintiff
fails to comply with a court order. We review for abuse of discretion a district court’s
dismissal of an action for failure to comply with a court order. See Ballard v. Carlson,
882 F.2d 93, 96 (4th Cir. 1989).
This Court, like our sister circuits, has recognized that dismissal under Rule 41(b)
is a “drastic” penalty, Hillig, 916 F.2d at 174, that should be limited to “extreme
circumstances,” Reizakis, 490 F.2d at 1135; see also, e.g., Dahl v. City of Huntington
Beach, 84 F.3d 363, 366 (9th Cir. 1996) (holding that dismissal under Rule 41(b) “is so
harsh a penalty it should be imposed as a sanction only in extreme circumstances”);
Jackson v. City of New York, 22 F.3d 71, 75 (2d Cir. 1994) (“Although dismissal pursuant
to Rule 41(b) is a matter committed to the discretion of a district court . . . dismissal is a
harsh remedy to be utilized only in extreme situations.” (internal quotation marks
omitted)); Flaksa v. Little River Marine Const. Co., 389 F.2d 885, 888 (5th Cir. 1968)
(dismissal under Rule 41(b) warranted only in “extreme circumstances”).
In deciding whether to dismiss a case under Rule 41(b), “[a]gainst the power to
prevent delays must be weighed the sound public policy of deciding cases on the merits.”
Hillig, 916 F.2d at 173–74. In making that determination, “[t]his Circuit requires that the
trial court consider four factors before dismissing a case for failure to prosecute: (1) the
plaintiff’s degree of personal responsibility; (2) the amount of prejudice caused the
defendant; (3) the presence of a drawn out history of deliberately proceeding in a dilatory
66
fashion; and (4) the effectiveness of sanctions less drastic than dismissal.” Id. at 174
(emphasis added). 5
Considering this precedent, the district court abused its discretion in dismissing
Attkisson’s claims against the Doe Defendants based on Attkisson’s failure to comply
with the court’s order. The district court never expressly considered this Court’s
mandatory four-factor test for dismissing an action for failure to comply with a court
order. That legal error, by itself, amounts to an abuse of discretion. See Verisign, Inc. v.
XYZ.COM LLC, 891 F.3d 481, 484–86 (4th Cir. 2018) (holding that district court abuses
its discretion when it applies the wrong legal test); United States v. Cargill, 134 F.3d 364
(4th Cir. 1998) (table) (same); see also Koon v. United States, 518 U.S. 81, 100 (1996)
(“A district court by definition abuses its discretion when it makes an error of law.”).
And although the district court adverted, in a conclusory fashion, to some aspects
of those four considerations—referencing “prejudic[e]” to defendants and “judicial
economy,” J.A. 668—it never considered, much less ruled out, “less drastic” sanctions, as
this Court requires. Notably, this Court and other courts have held that a district court
abused its discretion in dismissing an action under Rule 41(b) when it failed to consider
5
The majority opinion states that the factors identified in Hillig should “guide” the
district court’s analysis in determining whether to dismiss a case under Rule 41(b), and
therefore that the district court did not reversibly err in failing to consider those factors.
Ante at 34. The majority opinion nowhere reconciles its reasoning with Hillig’s
controlling holding that district courts are “required” to consider those four factors. 916
F.2d at 174. The majority opinion also nowhere reconciles its conclusion with the
unanimous conclusion of the Courts of Appeal that dismissals under Rule 41(b) should be
limited to “extreme circumstances.”
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lesser sanctions. See Reizakis, 490 F.2d at 1135; In re Se. Banking Corp., 204 F.3d 1322,
1335 (11th Cir. 2000).
Additionally, had the district court considered the mandatory factors set forth in
Hillig, it should have rendered a different judgment. First, there is no evidence that
Attkisson had any degree of personal responsibility in her attorney’s purported failure to
comply with the court’s order. Second, although the passage of time may somewhat
prejudice the Doe Defendants, Attkisson correctly notes that any such prejudice is
attributable to the government’s repeated efforts to delay and resist any discovery.
Appellant’s Br. at 48. Third, the record belies any finding that Attkisson engaged in “a
drawn-out history of deliberately proceeding in a dilatory fashion.” Hillig, 916 F.2d at
74. On the contrary, since the filing of the original complaint, Attkisson has repeatedly
sought to engage in discovery to identify the Doe Defendants and faced largely
successful resistance from the government and third-parties at every turn. Finally, any
number of less drastic remedies, such as denying further leave to amend the complaint to
add new defendants or causes of action, were available. 6
6
I agree with the majority opinion that the district court did not abuse its
discretion in denying Attkisson leave to amend her complaint to rename the United States
as a defendant, add several Verizon-affiliated entities as defendants, and resurrect several
previously dismissed claims. Ante at 34–36. The court’s order did not authorize
Attkisson to make such amendments, and Attkisson never sought the court’s leave to do
so. But the majority opinion improperly conflates the district court’s (correct) disposition
of Attkisson’s proposed amended complaint with the district court’s (incorrect) dismissal
of Attkisson’s claims against the Doe Defendants, who had been listed as defendants
since the case’s inception. Whether Attkisson’s proposed amended complaint was proper
had no bearing on whether Attkisson’s long-standing claims against the Doe Defendants,
as set forth in her operative complaint, warranted dismissal.
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Additionally, the district court’s Rule 41(b) dismissal runs contrary to this Court’s
stated preference to resolve cases on the merits. Put simply, this case did not present the
“extreme circumstances” warranting dismissal under Rule 41(b). Accordingly, I disagree
with the majority opinion’s conclusion that the district court did not reversibly err in
dismissing Attkisson’s claim against the Doe Defendants. 7
III.
The most troubling aspect of the district court’s decision to dismiss Attkisson’s
claims against the Doe Defendants is that it rewards the government’s concerted effort to
deprive Attkisson any opportunity to pursue her claims and, by doing so, creates a game
plan for the government and private parties to follow in future cases in which plaintiffs
seek to challenge governmental or private electronic surveillance activities.
At the outset of cases challenging alleged electronic surveillance, the defendants
nearly always have exclusive control over virtually all information necessary to identify
the individuals responsible for engaging in allegedly unconstitutional or unlawful
electronic surveillance. In cases involving governmental surveillance programs, for
example, the individuals and entities responsible for the challenged surveillance
programs generally will be protected by statutes and regulations preventing the disclosure
7
The majority opinion further concludes that the district court “implicitly relied”
on Federal Rule of Civil Procedure 4(m) in dismissing Attkisson’s claims against the Doe
Defendants because Attkisson failed to establish “good cause” for her failure to timely
serve the Doe Defendants. Ante at 38 n.13. But the district court’s terse footnote
dismissing the Doe Defendants nowhere mentions Rule 4(m). And Attkisson did have
“good cause” for failing to serve the Doe Defendants—she never obtained the discovery
from the government necessary for her to identify the Defendants.
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of classified documents and programs as well as judicial orders sealing records related to
warrants issued in criminal and national security investigations. The nature of the
Internet, which allows wrongdoers to conceal their identity in a variety of ways, poses
further obstacles to identifying individuals responsible for electronic surveillance without
the benefit of pre-trial discovery.
This profound information asymmetry sets electronic surveillance cases apart from
earlier cases involving tort claims against unnamed defendants. Whereas the plaintiff in
Bivens, for example, could point to a specific number of officers employed by a specific
agency who were in a specific place at a specific time, a plaintiff challenging electronic
surveillance faces fatally greater obstacles to narrowing the universe of wrongdoers
absent court-supervised discovery.
If a district court creates a deadline for identifying unnamed defendants accused of
unlawful electronic surveillance and that deadline is not tethered to whether the defendant
affords the plaintiff a meaningful opportunity to discover the identity of the
wrongdoers—as was the case here—the defendant has a strong incentive to resist all
discovery of information bearing on the identity of wrongdoer. Put simply, when the
defendant is not compelled to provide discovery, the plaintiff will be unable to meet the
court’s deadline to substitute names for the unnamed defendants and the case will be
dismissed, just as occurred here.
But “the children’s game of pin the tail on the donkey is [not] a proper model for
constitutional tort law,” nor is the time-limited game of pin-the-tail-on-the-donkey that
the district court imposed here. Billman, 56 F.3d at 789. That is particularly true in cases
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involving electronic surveillance in which the complexity of modern telecommunications
systems—coupled with the numerous avenues such systems afford users to conceal their
identities—may require more extensive discovery to identify an unnamed defendant. In
such instances, artificial time constraints on identifying an unnamed defendant are all the
more inappropriate.
In recent years, newspapers have been rife with reports of actual or alleged
undisclosed electronic surveillance by the government and private entities. See, e.g.,
Carole Cadwalladr & Emma Graham-Harrison, Facebook Accused of Conducting Mass
Surveillance Through Its Apps, Guardian (May 24, 2018),
https://www.theguardian.com/technology/2018/may/24/facebook-accused-of-conducting-
mass-surveillance-through-its-apps; Charlie Savage, N.S.A. Halts Collection of
Americans’ Emails About Foreign Targets, N.Y. Times, Apr. 29, 2017, at A1. Such
surveillance has the potential to reveal to the government and private entities broad
swaths of highly sensitive personal and commercial information. This case is
illustrative—according to the complaint, the incursion not only entailed the searching of
Attkisson’s computers and the monitoring of her electronic communications, but also
involved using her devices to eavesdrop on her oral conversations and interactions with
her family in her home. As the government’s and private entities’ capacity to hoover up
data increases—and as we move beyond accessing the Internet through a limited universe
of devices to the Internet of things—the potential intrusion on privacy only increases.
Under the government’s playbook—which the district court effectively
endorsed—plaintiffs would be deprived all opportunity to challenge the legality of most,
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if not all, these electronic surveillance efforts, notwithstanding the significant intrusion
on individual rights posed by such surveillance. To be sure, it can be difficult to apply
analog law in the digital age, and courts must tread carefully in so doing. But courts must
not avoid the difficult legal issues raised by new technology by erecting procedural
barriers that ensure they never will be addressed. The district court’s disposition of
Attkisson’s claims against the Doe Defendants, which the majority opinion affirms, does
precisely that.
Accordingly, I respectfully dissent.
72