Baszak v. Federal Bureau of Investigation ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
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EDWIN BASZAK, )
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Plaintiff, )
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v. ) Civil Action No. 10-02019 (ABJ)
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FEDERAL BUREAU OF )
INVESTIGATION, et al., )
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Defendants. )
___________________________________ )
MEMORANDUM OPINION
Plaintiff Edwin Baszak brings this action pro se against the United States of America 1
and the Federal Bureau of Investigation (“FBI”) alleging violations of his rights under the
Foreign Intelligence Service Act, 50 U.S.C. § 1800, et seq. (2006) (“FISA”), the Federal Tort
Claims Act, 28 U.S.C. § 2671, et seq. (2006) (“FTCA”), the Constitution of the United States,
and the International Covenant on Civil and Political Rights, art. 17–19, Dec. 16, 1966, 999
U.N.T.S. 171 (“ICCPR”).
Defendants moved to dismiss all of plaintiff’s claims for lack of subject matter
jurisdiction under Fed. R. Civ. P. 12(b)(1) on the grounds that the claims are fictitious, and for
failure to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6). For the
reasons stated below, the Court will grant defendants’ motion to dismiss for lack of subject
matter jurisdiction.
1 The Court notes that plaintiff never filed proof of service of the amended complaint on
defendant United States of America. But because the Court will dismiss the amended complaint
for lack of subject matter jurisdiction, it need not further address plaintiff’s failure to serve that
defendant.
I. Background
Plaintiff is a citizen and national of Belgium, residing in Washington, D.C, who claims
that prior to September 11, 2001, he alerted the FBI of the exact date of terrorist attacks on the
World Trade Center and Pentagon. Am. Compl. ¶¶ 1, 6–7. Plaintiff contends that he
“discovered that pilots were being trained to hijack airplanes and fly into the World Trade Center
and Pentagon for the express purpose of causing maximum civilian casualties” from a third party
who “conversed in an internet chat room with a terrorist cell,” and that he unsuccessfully sought
to “discuss the terrorist activity he uncovered with the FBI.” Id. ¶ 7–8.
Plaintiff further alleges that in 1999 he made a presentation to classmates on the
September 11, 2001 terrorist attacks and specifically named the future perpetrators of the attacks.
Id. ¶ 9. He claims that the FBI obtained his private information by engaging in long-term and
warrantless surveillance through “intrusive techniques such as video and mental surveillance . . .
.” Id. ¶¶ 11, 53.
Plaintiff insists that the “information he revealed to the FBI was distributed to the public
through various recording artists, using the artists’ compact disk recordings of popular music.”
Id. ¶ 10. “After close review of particular recording materials, the plaintiff reached the
conclusion that they actually contain portions of personal data, which he alleges have been
processed by defendants after 9/11.” Id. ¶ 45. He alleges that this information was distributed to
“global media networks,” as “part of a wider pattern of widespread and systematic privacy
abuses, in which defamatory information is being circulated through the media.” Id. ¶¶ 11, 39.
The “personal data is being disseminated to the public on a daily basis,” id. ¶ 42, but according
to plaintiff, the information being distributed is “only personally recognizable” to plaintiff
himself. Id. ¶ 45. Although plaintiff asserts that “no reasonable person would be convinced that
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this material is actually a product of another person’s intellect,” he claims his personal
information is being “revealed behind closed doors.” Id. ¶¶ 41, 45.
Because plaintiff claims he has exhausted the remedies afforded to him by various
agencies through requests under the Freedom of Information Act for his “report of terrorist
activity and any personal records maintained in the records system,” id. ¶¶ 15–27, he seeks relief
under FISA, the First, Fourth, Fifth, Sixth, and Fourteenth Amendments of the U.S. Constitution,
the FTCA, and Articles 17, 18, and 19 of the International Covenant on Civil and Political
Rights. He notes that his claim “is based on a Present Reality, of which the causes extend far
into the Past,” id. ¶ 35, and he asks for damages in the amount of $20,000,000.00 in his FTCA
claim. Id. ¶ 33.
II. Standard of Review
Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a
preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992);
Shekoyan v. Sibly Int’l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). Federal courts are courts of
limited jurisdiction and the law presumes that “a cause lies outside this limited jurisdiction.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). See also Gen. Motors
Corp. v. Envtl. Prot. Agency, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court with limited
jurisdiction, we begin, and end, with examination of our jurisdiction.”). Because “subject-matter
jurisdiction is an ‘Art[icle] III as well as a statutory requirement, . . . no action of the parties can
confer subject-matter jurisdiction upon a federal court.’” Akinseye v. District of Columbia, 339
F.3d 970, 971 (D.C. Cir. 2003), quoting Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de
Guinee, 456 U.S. 694, 702 (1982).
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When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a
motion to dismiss under Rule 12(b)(6), the court “is not limited to the allegations of the
complaint.” Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other
grounds, 482 U.S. 64 (1987). Rather, a court “may consider such materials outside the pleadings
as it deems appropriate to resolve the question of whether it has jurisdiction in the case.”
Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000), citing Herbert
v. Nat’l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1993); see also Jerome Stevens Pharms.,
Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).
Where the action is brought by a plaintiff proceeding pro se, “the court must take
particular care to construe plaintiff’s filings liberally, for such complaints are held ‘to less
stringent standards than formal pleadings drafted by lawyers.’” Cheeks v. Fort Myers Constr.
Co., 722 F. Supp. 2d 93, 107 (D.D.C. 2010), quoting Haines v. Kerner, 404 U.S. 519, 520–21
(1972).
III. Plaintiff’s claims are patently insubstantial and must be dismissed
“Federal courts are without power to entertain claims otherwise within their jurisdiction if
they are so attenuated and unsubstantial as to be absolutely devoid of merit.” Lewis v. Bayh, 577
F. Supp. 2d 47, 54 (D.D.C. 2008), quoting Hagans v. Lavine, 415 U.S. 528, 536–37 (1974).
Dismissal under Fed. R. Civ. P. 12(b)(1) is appropriate when a complaint is so “patently
insubstantial” that it presents “no federal question suitable for decision.” Best v. Kelly, 39 F.3d
328, 330 (D.C. Cir. 1994). A complaint that is “patently insubstantial” is not merely doubtful or
questionable, but is “essentially fictitious.” Id.; see also Carone-Ferdinand v. CIA, 131 F. Supp.
2d 232, 234 (D.D.C. 2001) (finding that allegations that are “so obviously false as to cast doubt
on the plaintiffs’ entire case” are essentially fictitious).
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Claims that are patently insubstantial include those arising from allegations of “bizarre
conspiracy theories” or “fantastic government manipulations of [one’s] will or mind.” Curran v.
Holder, 626 F. Supp. 2d 30, 33–34 (D.D.C. 2009), quoting Best, 39 F.3d at 330; see also Tooley
v. Napolitano, 586 F.3d 1006, 1009 (D.C. Cir. 2009) (holding that the “particular combination of
sloth, fanaticism, inanity and technical genius . . . move these allegations into the realm of
claims [that are] essentially fictitious”). For example, in Roum v. Fenty, 697 F. Supp. 2d 39, 41–
43 (D.D.C. 2010), the court dismissed a complaint that asserted a conspiracy by various
government officials, including allegations of brain-mapping and dissemination of private
information. See also Roum v. Bush, 461 F. Supp. 2d 40, 46 (D.D.C. 2006) (dismissing
plaintiff’s “inherently unrealistic allegations” against the FBI).
Here, all of plaintiff’s claims arise from allegations of surveillance and conspiracy
theories and are patently insubstantial. See Fenty, 697 F. Supp. 2d at 42. Plaintiff alleges that
defendants’ violations of his First and Sixth amendment rights, and articles 18 and 19 of the
ICCPR, based on long-term warrantless surveillance and unlawful interception through
“intrusive techniques such as video and mental surveillance,” have denied him the “ability to
obtain legal advice” and “fair proceedings,” and his right to free expression. Am. Compl. ¶¶ 25,
50–55, 57–58. These allegations are frivolous. See Newby v. Obama, 681 F. Supp. 2d 53, 54–56
(D.D.C. 2010) (dismissing complaint that set forth “vague legal arguments” alleging government
surveillance and denial of constitutional rights).
Similarly, plaintiff’s claims under FISA, FTCA, the Fourth, Fifth, and Fourteenth
amendments, and article 17 of the ICCPR allege that defendants’ interception, surveillance, and
subsequent public use of plaintiff’s information, has deprived plaintiff of his privacy, private
property, and personal liberties. Am. Compl. ¶¶ 50, 52–53, 56–67. Specifically, plaintiff alleges
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injury because of the distribution of information regarding his knowledge of the September 11,
2011 terrorist attacks, through popular music, to “global media networks.” Id. ¶¶ 10, 39, 45.
Here, plaintiff’s claims rest on “fantastic government manipulation of [one’s] will or mind” that
simply defy reality. See Curran v. Holder, 626 F. Supp. 2d 30, 33–34 (D.D.C. 2009).
Because each of plaintiff’s claims is based on conspiracy theories that are “essentially
fictitious,” the Court finds that those claims are patently insubstantial. See Best, 39 F.3d at 330;
Bush, 461 F. Supp. 2d at 42. Because the Court concludes that it does not have subject matter
jurisdiction over plaintiff’s claims, it does not need to reach the question of whether plaintiff
adequately stated claims under Fed. R. Civ. P. 12(b)(6). See Carone-Ferdinand, 131 F. Supp. 2d
at 235.
IV. Conclusion
For the foregoing reasons, the Court will grant defendants’ motion to dismiss for lack of
subject matter jurisdiction. A separate order will issue.
AMY BERMAN JACKSON
United States District Judge
DATE: October 6, 2011
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