Montgomery v. Comey

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FILED
MAR-szms
DENNIS MONTGOMERY, et al., )
) C|erk. U.S. District & Bankruptcy
Plaintiffs’ ) Courts for the District of Co|umb|a
)
v. ) Civil Action N0. 17-1074 (RJL)
)
JAMES COMEY, et al., )
)
Defendants. )
MEM§{:\NDUM OPINION
March i, 2018 [Dkrs. ##7, 26, 27, 36]
Plaintiffs, Dennis Montgomery (“Montgomery”) and Larry Klayman (“Klayman”)
filed the instant action against three federal agencies_the Federal Bureau of Investigations
(“FBI”), the Central Intelligence Agency (“CIA”), and the National Security Agency
(“NSA”)_as Well as seven current and former government officials_former President
Barack Obama (“Obama”), Director of National Intelligence (“DNI”) Daniel Coats
(“Coats”), former DNI James Clapper (“Clapper”), CIA Director Mil5 U.S.C. § 552(_a)(d)(l), in order to
obtain a copy of"any and all documents that refer or relate in any way to any and all 302
reports of the intervicw” conducted by the FBI.' Id. at ll 48. 011 l\/l.ay l, 2017, the FBI
confirmed its receipt of l\/lontgomery’s rcqucst, but it has failed to produce any documents
to him thus far. [a'. at ll 51.
l\/lontgomery also alleges that, on an unspecified date the l"Bl "‘raid[ed his:| housc,
|tied him| to a trec, threaten[cdl him and his family, and search|:ed_l and seiz[ed his]
property without a valid warrant or probable cause.” [a’. at ll 34. l\/Iontgomery claims that
he suffers from a brain aneurysm of which the FBI was aware at the time of the raid, and
he believes that the FBI conducted this search and seizure of his home and property in
order “to cause him severe emotional distress and potentially cause a fatal brain aneurysm.”
Ic/. at llll 33, 35.
Since these events, l\/lontgomery claims he has been the victim of multiple hacking
attempts against his home and business computers, as well as his Apple aecount, by each
' 'l``hc FD-302 "is an internal form used by the FBI to document interviews conducted in
law enforcement investigations." l)ecl, of l)avid l\/l. l~lardy ("l»~lardy Decl.”) |'l)kt. 27-5:]
ll 22.
of the defendants in this case [cl. at llll 43, 47. Speeifiieally, he alleges that he has traced
the ll) addresses of the hacl\'ing attempts to the l<``Bl’s Criminal .lustice lnformation Systems
office in Clarksburg`` Wcst Virginia; the l)(_)l)’s l\letwork lnformation Center in Columbus,
()hio_; the Cl/\ in Washington, l),C.; and the CI/\ in llangley, Virginia. ]d. at lll| 44~»47.
l~le also claims that Comey, the l-"Bl, and other defendants have “continucd to harass” him,
and have "fed misleading and false information about him to journalists . . . to smear |his_|
name and destroy |his| reputation in order to render him an ineffective whistleblower."`` ]d.
at ll 3().
Plainti'ff Klayman is a self-described “prominent public interest attorney who was
the founder of ludicial Watch, lnc. and now Freedom Watch lnc.” Compl. ll 53. Klayman
has brought several lawsuits against the federal government, its agencies, and its officers
for allegedly unconstitutionally spying on him and other /\mericans. Icz’. According to
Klayman, he has been “publicly trying to raise awareness of. and demand an investigation
into, 1_``)efendants’ ongoing illegal and unconstitutional surveillance of millions of
/\mcricansi as well as to prosecute wrongdoersM Ic/. at ll 54. 'l``hese efforts have included
meeting with the llousc lntclligcnce Committec, the Scnate lntelligence Committee, the
llousc .ludiciary Committee, and the Senate .ludiciary Committee about the surveillance
[cl. at ll 55. Klayman claims that he has been targeted by defendants because of these
meetings and his other attempts to reveal clefendants’ unlawful surveillance
ln particular, Klayman alleges that, “allnt)st immediately after" he contacted the
chairman of the l-louse lntelligence Committee regarding the l"l:~?»l``s cover-up of
l\/lontgomery’s evidence, he "received a purported ‘sof``tware update" on his Samsung
6
(lalaxy" cell phone ]cf. at ll 56. /\'fter installing the update however, his phone "l)egzlli
acting abnormally,” and "‘tlie battery |beganl draining at an exponential rate." Icl. at ll 57.
Klayman allegedly took his phone to two different Vcri7,on Wireless storcs, and the
technicians confirmed to him that the abnormalities were “not normal and highly suspect."
ld. at ll 58. f-lc further claims that both Samsung and his wireless carrier confirmed that
neither ofthem had initiated the “sof``twarc update."' [c)’. at ll 59. According to l\/lontgomcry,
“battery drainage is a tell-talc sign that Defcndants have successfully hackcd into a cellular
phone,"`` so Klayman was forced to purchase a new cell phone to avoid being monitored by
defendants [cl. at l|ll 60~-()1.
ln l\/Iay 2017, however, Klayman’s new phone began acting abnormally as wcll. ln
addition to the battery drainage problcm, his phone began "er'zrsiiig and downloading files
on its own and without |his| consent." /cl. at ll 62. Klayman claims that, according to
Wikil_/eal\'s, defendants have developed malware that hacks into smart phones remotely in
order to turn them "into recording and transmitting stations to spy on their targets.” Ia’. at
llll 63164. Klayman believes that defendants are using this malware to hack into his phone
because they are afraid that “l\/l<)iitgolner'y will reveal their ongoing conspiracy to the public
and that [Klaymanl will continue to push for an investigation."' Id. at ll 66.
Based on these allegations, plaintiffs filed this lawsuit on .lune 5, 2017, alleging
n eight claims for relief against the federal agencies and individual defendants See Compl.
Plaintiffs have sued the individual defendants in both their official capacities and their
individual capacitics, pursuant to Bz``vens v. Sz``x Unknown Namea’Age/its ofFed. Bureau 0f
chrcoll``cs, 403 U.S. 388 (l97l). See Compl. llll 7--16. In total, plaintiffs seek
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compensatory damages in excess of $16,000,000, punitive damages in excess of
$235,000,000, and equitable, declaratory, and injunctive relief. Ia’. at p. 32. Two weeks
after filing their complaint, plaintiffs filed a Motion for Temporary Restraining Order and
Preliminary lnjunction. See l\/lot. TRO & Prelim. lnj. [Dkt. #7] (“Pls.’ l\/lot.”).
l held a hearing in this case on June 23, 2017, during which l consolidated plaintiffs’
motion fo_r a temporary restraining order and preliminary injunction into a motion for a
preliminary injunction See Status Hr’g Tr. 29:1~7, June 23, 2017. l also set a briefing
schedule for defendants to submit any motions to dismiss, and l informed the parties that l
would rule on the motion for a preliminary injunction and any motions to dismiss
simultaneously See l\/lin. Order, June 27, 2017. The Government defendants subsequently
moved to dismiss and for partial summary judgment, and the individual defendants moved
to dismiss the claims against them in their individual capacities See Gov’t Defs.’ l\/[em.
ofP. & A. in Supp. ofl\/[ots Dismiss & for Partial Summ. J. & in Opp’n to Pls.’ l\/lot. TRO
& Prelim. lnj. [Dkt. #27-1] (“Gov’t Defs.’ Mem.”); l\/lem. in Supp. of lndividual-Capacity
Defs.’ l\/[ot. Dismiss [Dkt. #36-1] (“lndividual Defs.’ l\/lem.”). "l``hose motions_as well as
plaintiffs’ motion for a preliminary injunction_are now ripe
STANDARD OF REVIEW
A. Motion to Dismiss
The Govcrnment defendants have moved to dismiss Count Vl of plaintiffs’
complaint, which requests the appointment of a special master, for failure to state a claim
under Federal Rule of Civil Procedure l2(b)(6). To survive defendants’ motion, plaintiffs’
“[flactual allegations must be enough to raise a right to relief above the speculative level,
8
on the assumption that all the allegations in the complaint are true (even if doubtful in
faet)." B€/ZAI[. Cr)rp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted).
/\lthough a trial court generally must consider a plaintiffs factual allegations as true, the
court should first “identifly] pleadings that, because they are no more than conclusions, are
not entitled to the assumption oftruth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Once
this Court has satisfied itself that plaintiffs have asserted “well-pleaded factual
allegations,” z``d., l must determine that the allegations are plausible That is, plaintiffs’
factual allegations must allow this Court “to draw the reasonable inference that the
defendant[sl lare] liable for the misconduct alleged,” ifthe factual allegations are proven
true. Malrl'xx Inz``fl``az‘z``ves, lnc. v. Sl``racusano, 563 U.S. 27, 46 (201 l).
Defendants have also moved to dismiss Counts 1-111, V, Vll, and Vlll of plaintiffs’
complaint for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil
Procedure l2(b)(l). ln ruling on such a motion, 1 “may consider the complaint alone or
may consider materials beyond the pleadings,” Bz'ckfom’ v. Gov’l' ofU.S., 808 F. Supp. 2d
175, 179 (D.D.C. 2011) (internal quotation marks omitted), and 1 must view “the factual
allegations of the complaint in the light most favorable to the non-moving party.” Loughll``n
v. United Sl'ates, 230 F. Supp. 2d 26, 35 (D.D.C. 2002). ln this case, that means thatl must
view the complaint in the light most favorable to plaintiffs but this does not diminish
plaintif``fs’ obligation “to state a claim of standing that is plausible on its face.” Arpaio v.
()bama, 797 F.3d 1 1, 19 (D.C. Cir. 2015) (internal quotation marks and alteration omitted),
cert cz’em'ed, 136 S. Ct. 900 (2016), reh’g denied, 136 S. Ct. 1250 (2016).
B. lVlotion for Summary Judgment
The Government defendants have moved for partial summary judgment on Count
VI of plaintiffs’ complaint, which seeks to compel the FBI to comply with l\/lontgomery’s
Privacy Act request. Under Rule 56(a) ofthe Federal Rules of Civil Procedure, this Court
should render summary judgment in favor of defendants unless the pleadings, and any
attachments to the pleadings, establish a “genuine dispute as to any material fact.” The
moving party bears the initial burden of identifying evidence that demonstrates that there
is no genuine issue of material fact. Celolex Corp. v. Calrell, 477 U.S. 317, 323 (1986).
Once the movant_here, defendants_makes that showing, the burden shifts to plaintiff to
“come forward with specific facts showing that there is a genuine issue for trial.”
Maz‘sushl'ta Elec. lndus. CO. v. Zenl``th Raa'io Corp., 475 U.S. 574, 587 (1986) (internal
quotation marks omitted). Unless plaintiffs can demonstrate a genuine issue of material
fact_which requires that they “cast more than metaphysical doubt” on the evidence_
defendants are entitled tojudgment as a matter oflaw. D0e v. Gates, 981 F.2d 1316, 1323
(D.C. Cir. 1993).
C. Motion for Preliminary lnjunction
Plaintiffs are seeking a preliminary injunction, and thus they must establish “[ 1] that
[they arel likely to succeed on the merits, [2] that [they are] likely to suffer irreparable
harm in the absence of preliminary relief, [3] that the balance of equities tips in [theirl
favor, and [4] that an injunction is in the public interest.” Aamer v. Obama, 742 F.3d 1023,
1038 (D.C. Cir. 2014) (internal quotation marks omitted). rl``he third and fourth factors
“merge when the Government is the opposing party.” Colo. Wila’ Horse v. Jewell, 130 F.
10Supp. 3d 205, 220¢21 (D.D.C. 2015) (internal quotation marks omitted). Because the relief
plaintiffs seek is “an extraordinary remedy,” a preliminary injunction “should be granted
only lif they carryl the burden of persuasion.” Chap/az``ncy ofFull Gospel C/mrches v.
England, 454 F.3d 290, 297 (D.C. Cir. 2006).
DISCUSSION
A. Count I: Fourth Amendment Violation
l\/[uch like their claims in Klayman 1 and Klayman II, plaintiffs allege that the
individual-capacity defendants violated the Fourth Amendment by unreasonably searching
and seizing their personal records, as well as the records of “millions of innocent U.S.
citizens,” without reasonable suspicion or probable cause and without describing with
particularity the place to be searched or the person or things to be seized. Compl. lll 694-
70. Spccifically. plaintiffs allege that thc NS/\ collected their electronic comrmlnications
using three distinct methods: (_l) the I)RlSl\/l program,2 (2) a resurrected version of the
NSA bulk collection program,3 and (’3) hacking of their personal electronic devices with
2 "l``he PRlSl\/l program is an ongoing targeted collection program conducted pursuant to
Scction 702 ofthe l*``oreign lntelligence Surveillance Act (“FISA"). See 50 U.S.C. § 1881a.
Under the PRlSl\/l program, the Government uses selectorsilike e-mail addresses_to
collect online communications of non-U.S. persons located abroad See K/ayman, 2017
er 5635668, at *3~-4, 13 (describing the PRlSl\/l program). lmportantly, Section 702
expressly prohibits the Government from intentionally targeting a U.S. person overseas or
any person known to be in the United States See 50 U.S.C. § 1881a(b).
3 Beginning in May 2006, and pursuant to its authority under Section 215 of the USA
PATRIOT Act, the Government conducted the bulk telephony metadata program that
plaintiffs challenge today. See Pub. L. No. 107-56, 115 Stat. 272, 287 (2001) (codified at
50 U.S.C. § 1861(a)(1)). As part of this program, the Government obtained orders from
the Foreign lntelligence Surveillance Court (“FISC"``) directing certain telecommunications
service providers to produce, in bulk, ca11-detail records, which contained metadata about
telephone calls, including the time and duration of a ca11 and the dialing and receiving
ll
Cl/\ malware /a’. l|ll 20, 63. Plaintiffs allege that they themselves have been targets of this
surveillance based on the fact that they “have worked visibly, in the public eye, to raise
awareness off and demand investigation into” defendants’ illegal surveillance laf. at lll| 30,
66. 'l``hc individual defendants counter that plaintiffs have failed to establish standing to
pursue their l%``ourth Amendment claim, and thus Count 1 must be dismissed See lndividual
l)ef``s.’ 1\/Icm. 4; Gov’t l)cfs.’ l\/lcm. 9. 1 find that defendants arc correct.
1"``irsti plaintiff"s`` standing to challenge defendants’ alleged surveillance under the
l)R_lSl\/l program is clearly foreclosed by the Suprcme Court’s decision in C/ap/)er v.
A)nnes/y lnl'ernalic)na[ USA, 568 U.S. 398 (2013). 1n Clap[)e/”, the Suprcme Court held
that, in order to establish Article 111 standing, plaintiffs challenging surveillance under the
PRlSl\/l program must sufficiently allege that “potential future surveillance is certainly
impending or is fairly traceable to lthe PRlSl\/l program:|." Ia'. at414. Plaintiffs challenging
the PRISl\/l program must therefore set forth facts tending to show that: (1) they have
communications with persons abroad; (2) their foreign contacts would be targeted by the
PRISl\/l program; ('3) the (:}overnmcnt would seek l"``lSC authorization to surveil their
foreign contacts under the PRISl\/l program; (4) the Government would actually succeed in
numbers See Klayman, 2017 WL 5635668, at *2. Once the data was collected, the
Government created a repository where that data could be accessed and queried by NSA
analysts for the purpose of detecting and preventing terrorist attacks See z``a’. ln 2015,
however, in response to many of the same Fourth Amendment concerns 1 articulated in my
initial opinion in Klayman I, see Klayman v. Obama, 957 F. Supp. 2d 1, 38-44 (D.D.C.
2013), vacated anal remanded, 800 F.3d 559 (D.C. Cir. 2015) (per curiam), Congress
passed the USA FREEDOM Act, Pub. L. No. 114-23, 129 Stat. 268, which amended
Section 215 ofthe USA PATRIOT Act to prohibit bulk collection by the Government. See
Klayman, 2017 WL 5635668, at *7. The bulk telephony metadata collection program
under Section 215 is therefore now defunct.
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obtaining communications from their foreign contacts; and (5) their communications with
their foreign contacts would bc among those collected pursuant to the PRlSl\/l program.
.S'ce /``r/. at 41 1 14 (requirin g the plaintiffs in C.``la}),z)e/' to allege “specif'ic facts demonstrating
that the communications oftheir foreign contacts will be targeted”). l')lainti'ffs clearly have
not carried their burden here
ln fact, plaintiffs have not even alleged---in their complaint, their l\/lotion for a
Preliminary lnjunction. or their supporting affidavits#that they communicate with any
persons abroad, let alone that they have reason to believe that their foreign contacts have
been targeted under the PRlSl\/l program. l)laintiffs" allegations here arc therefore even
less colorable than those l dismissed for lack ofstanding under C[a])/)er in Klayman l and
[\’/ayma/»z //. See Klawnan, 2017 WL 563668, at fl3 (holding that Klayman failed to
establiin standing to challenge the l)RlSl\/[ program, even where he alleged that he
"frcquents and routinely telephones and e-mails individuals and high-ranking government
officials in 1s1'acl" and communicates with persons in several other nations). Plaintiffs
accordingly lack standing to challenge defendants’ alleged surveillance under the PRlSl\/l
program.
Sccond, plaintiffs claim that thcy, and millions of other Americans, have been
targeted for surveillance by the bulk telephony metadata collection program formerly
conducted by the NSA pursuant to Scction 215 of the 11 S/\ l)/"l"RlO'l`` Act. See Klaylnan,
2017 Wll 563668, at *2 (discussing the history of the government’s now defunct bulk
telephony metadata collection program). But as l held in Klayman 1 and Klayman ][, the
llS/\ l"Rl£l/ll)(',``)l\/l /\ct expressly prohibits the bulk collection of telephony metadata under
13
Section 215, See US/\ l-"l``{l;``ll_il)(j_)l\/l /\ct §§ 103, 109, 129 Stat`` at 272, 276_; 50 U.S.C.
§ l861(c)(3); see also Klay)nan, 2017 Wl_r 563 5688, at ”‘9 (explaining that bulk telephony
metadata collection pursuant to Scction 215 is now prohibited by statute-»---under the USA
l"Rlilll)Ol\/l /\ct-»--and by Ordcr of the lllSC). Because l must assume, absent evidence to
the contrary, “that government officials will conduct themselves properly and in good
faith,"`` /n /‘e Navy (l/ici/)[clz'/icjt’, 850 F. Supp. 2d 86, 94 (D.D.C. 2012), l presume that
defendants have acted in accordance with the limitations imposed by the USA FREED(f)l\/l
/\ct.4 'l``hus, because the bulk telephony metadata collection program is no longer in
existence and plaintiffs have offered no evidence to suggest that defendants have
resurrected it in violation of l"*`` lSC order and statutory command_plaintiffs" challenges to
that program do not present a live Article 111 case or controversy. Clar/ce v. United States,
915 1*``.2d 699, 701 (D.C. Cir. 1990) (instructing that a court must dismiss a case as moot if
“events have so transpired that the decision will neither presently affect the parties’ rights
nor have a more-than-speculative chance of affecting them in the future” (internal
quotation marks omitted)).
Third, plaintiffs allege that their personal cell phones and computers have been
hacked by defendants and that l\/lontgomery has traced the lP addresses ofthe hacks to the
NSA, thc DOD, and the CIA. Compl. llll 43-47, 60-64, 86-87, 95. But plaintiffs’ only
support for these allegations is l\/lontgomery’s own opinion that his computer and
4 As l already noted in Klayman 1 and Klayman 11, even if defendants tried to resurrect the
Section 215 bulk collection program in the future, the FlSC has already made clear that it
would not sanction such surveillance See Klayman, 2017 WL 5635668, at *9.
14
Klayman’s phone showed signs ofbeing hackcd. Compl. llll 43-47, 60-61. Without more,
these sparse allegations are “similar to those in a number of cases that district courts have
dismissed for patent insubstantiality: that plaintiff was subjected to a campaign of
surveillance and harassment” by the Government. Tooley v. Napo[z'tano, 586 F.3d 1006,
1010 (D.C. Cir. 2009); see also, e.g., Lewl's v. Bayh, 577 F. Supp. 2d 47, 54~55 (D.D.C.
2008) (_rejccting as frivolous claims that a U.S. Senator orchestrated a program of hacking
into plaintiff” s personal computer and monitoring his phone calls); Delal``ne v. United States
Poslal Serv., 2006 WL 2687019, *2 (D.D.C. 2006) (dismissing complaint where plaintiff
alleged that the U.S. Postal Service kept her under surveillance by unlawfully using
electronic devises), aff’a’ No. 06-5321, 2007 U.S. App. LEXIS 7371 (D.C. Cir. June 1,
2007). Because plaintiffs’ claims regarding hacking oftheir cellular phones and computers
constitute the sort of “patently insubstantial claims” routinely dismissed on jurisdictional
grounds in our Circuit, 1 find that they, too, must be dismissed Tooley, 586 F.3d at 1009,
1010 (“A complaint may be dismissed on jurisdictional grounds when it is patently
insubstantial.” (internal quotation marks omitted)).
B. Count II: First Amendment Violation
ln addition to their Fourth Amendment challenge to defendants’ alleged surveillance
programs, plaintiffs also challenge those programs under the First Amendment.
Speci'fically, Klayman alleges that he has “suffered a chilling effect in his First Amendment
rights” because he and his clients, including l\/lontgomery, are “afraid to speak over the
phone and communicate otherwise for fear of being surveilled by Defendants.” 101 at ll 32.
Klayman further asserts that his attorney-client privilege with his clients has been
15
compromised as a result of dcfendants" surveillance of his communications la'. Plainti'f"fs
also broadly contend that defendants" alleged actions "chill, ifnot ‘kill’ speech” and violate
their freedom of association by making “over a hundred million of /\mericans” afraid to
contact other persons via cell phone, the internet. or social media. [a’. at llll 76-77.
Unfortunatcly for plaintiffs l find that they lack standing to pursue this 1"irst Amendment
claim. l-low so?
rl``he basis of plaintiffs" l"``irst Amendment claim is that the government has engaged
in a pattern or practice of unlawful surveillance that has caused a chilling effect on their
associations and communications and has caused them to fear being spied on by the
government 1a’. at llll 32, 76-77. But in order to establish that defendants’ conduct caused
a chilling effect sufficient to constitute a First Amendment violation, plaintiffs must first
sufficiently allege that they have reason to believe that they were actually surveillcd. As 1
have already concluded however, plaintiffs have not made this showing lnstead,
plaintiffs’ assertions that they "are afraid to speak over the phone” because the Government
may be monitoring their communications, Compl. l| 32, constitute nothing more than a
subjectivc---and baseless-erar of`` surveillance, which the Supreme Court has held to be
insufficient to confer standing in thc l"irst Amendment context See C``lappe/‘, 568 U.S. at
418 (explaining that allegations of a subjective chilling effect on speech and association
“‘are not an adequate substitute for a claim ofspecific present objective harm or a threat of
specific future harm" (quoting Laird v. Tal'wn, 408 U.S. 1, 13-14 (1972)). '1"hus,
plaintiffs’ self-inflicted f~‘ar of surveillance, without more, is not fairly traceable to
16
defendants’ alleged surveillance activities and plaintiffs accordingly lack standing to
pursue their lr``irst Amendment claim. See (j'la;);)er, 568 U.S. at 418.
C. Count lV: Appointment ofa Special Master
Plaintiffs next request that this Court “appoint a Special Master with the appropriate
security clearance to conduct a real and [thoroughl investigation of the information
contained on the hard drives” that Montgomery gave to the FBI and of the hacks of
Klayman’s cell phone and l\/lontgomery’s computer. Compl. llll 94-95. Appointment of
a special master in this eontcxt, however, would be inappropriate under the l3 ederal Rules
of``Civil Procedure See Gov``t l)efs.’ l\/lcm. 28.
llnder li``edcral Rulc of Civil Procedure 53(a)(1), a district court may appoint a
special master only to:
“(/\) perform duties consented to by the parties;
(13) hold trial proceedings and make or recommend findings of fact on
issues to bc decided without ajury if appointment is warranted by:
('i) some exceptional condition; or
(ii) the need to perform an accounting or resolve a difficult
computation of damages; or
(C``) address pretrial and posttrial matters that cannot be effectively and
timely addressed by an available district judge or magistrate judge of
the district."'
l\lonc of these circumstances are present in this case Defendants have understandably
made clear that they do not consent to the appointment of a special master. See Gov’t
Defs." l\/lcm. 29. And plaintiffs are requesting a special master to “conduct a real and
through[sic] investigation ofthe information contained on the hard drives,” so the damages
provision of Rulc 53('a)(1``) is not applicable Compl. llll 94495. Similarly, plaintiffs have
not alleged---and 1 have no reason to believe#~that this Court is ill-equipped to address any
17
pretrial matters in an effective and timely manner. C_'f.`` Maclrz``gal Azirlio Labs., /nc. v. Cel/(),
lilcl., 799 l".2d 814, 821 n.2 (2d Cir. 1986) ("``l_"l"lhc fact that the case involves complex
issues of fact and law is no justification for reference to a l\/lastcr, but rather is a
|com|pelling reason for trial before an experienced judge."’ (internal quotation marks
omitted)). '1``hat accordingly leaves only the "exceptional condition” clement of Rule 53.
But plaintiffs have offered no justification as to why their request constitutes an
“cxccptional condition” sufficient to justify the appointment ofa special master, and 1 find
none (.l/.`` /l/lee/‘r)/)Ol v. Mee.s'e, 790 l".2d 942, 961 (l).C. Cir. 1986) (“Thc decision whether
to appoint a master lies within the discretion ofthe trial court. Such appointments arc the
exception and not the rule, and the decision not to name one will very rarely constitute an
abuse of discretion.” (internal citations and quotation marks omitted)). Plaintiffs’ request
to appoint a special master must accordingly be denied
D. Count V: Conversion
Plaintiffs’ fifth cause of action alleges a claim of common law conversion.
Specifically, l\/lontgomcry alleges that the FBl, under the direction ofComey, induced him
to turn over 47 hard drives containing evidence of defendants’ illegal surveillance, and he
requests that 1 issue an order requiring defendants either to return the hard drives to him or
to compensate him “with the fair market value of the hard drives at the time of the
conversion.” Ia’. at l| 101, Unf``ortunately for plaintiffs 1 find that they have failed to
properly allege a claim for conversion because the 14``131 and Comey_in his official
capacity ------ are immune from suit.
18
lt is axiomatic that "‘ltlhe United States, as sovereign, is immune from suit save as
it consents to be sued . , ., and the terms ofits consent to be sued in any court define that
court’s jurisdiction to entertain the suit."`` United S/‘ales v. M/``lehell, 445 U.``S. 535, 538
( 1980) (intcrnal quotation marks omitted). '1``he only waiver ofsovereign immunity that is
conceivably applicable in this case is the lr``cderal fort Claims Act (“l"TCA”), 28 U.S.C.
§§ 1346(b), 2679(a), which waives the United States’ sovereign immunity for certain
common-law tort claims such as conversion The FTCA instructs however, that the
"cxclusive rcmcdy" for a common law tort, such as conversion “is an action against the
United States rather than against the individuals or the particular government agencies”
l)o/'/nan v. T/zo/'")'il)z/rg/i, 740 l". Supp. 875, 879 (D.D.C. 1990); see also Sp/'i``)'zger v.
Siip)/'eine (``ow'r off/re Ui'ill'ec/Slai‘es, l\lo. ()4-5140, 2004 Wl_/ 2348134, at *1 (D.C. Cir. ()ct,
18, 2004) (per curiam) ("[:fl"]he United States is the only proper defendant in an [FTCA:'|
action."’); 28 ll,S.C. § 2679 (_"'1``he authority of any federal agency to sue and be sued in its
own name shall not be construed to authorize suits against such federal agency on claims
which are cognizable under section 1346(1)) of this title, and the remedies provided by this
title in such cases shall be exclusive.”). Thus, a plaintiffcannot invoke the FTCA by filing
suit against a government agency or a government official in his official capacity. See Cox
v. Sec. o/``Lal)or, 739 1". Supp. 28. 29 (D.D.C. 1990) ("Since the plaintiffelected to sue the
Secretary of 1 ,abor in her official capacity rather than the government itself, the complaint
must fail for that reason alone for lack ofsubjcct matter jurisdiction.”). And a plaintiff also
may not sue a government official in his individual capacity under the l"'l``CA. See ./o/znson
v. 1_/)1/'/erlSl(’/le.s', 642 l". Supp. 2d 1, 3 n.3 (l").l).C. 2009) (_“()nly the United States is a
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hrolier defendant to a claim under the l'*"l``C/\. 'l``hcref``ore, a claim under the li``"l``C/\ against
thc BOP’s l)irector in his individual capacity must be dismissed for lack of subject matter
jurisdiction.” (intcrnal citations omitted)).
l-lerc, plaintiffs have failed to name the United States as a defendant lnstead, they
have sued a government agency ------- the 1*'131---and a government ofl'icial---Comey. See
Compl. p. 28. 1’laintiffs’ failure to name the United Statcs as a defendant therefore
“1'ec1tlires dismissal for lack of subject-matter jurisdiction"’ because plaintiffs have not
established a waiver ofsovereign immunity under thc F'l``CA. ./o/inson v. Vefe/'ans Af/alrs
Mecl. (_'f/~., 133 l<``. Supp. 3d 10, 17, 14 (D.D.C. 2015) (“lfsovercign immunity has not been
waived a claim is subject to dismissal under Rule 12(b)(1) for lack of subject matter
jurisdiction.” ( internal quotation marks omitted)).
E. Count VI: Injunctive Relief Under the Privacy Act of 1974
ln Count VI ofthe Complaint, plaintiffs seek to compel the FBI to comply with the
Privacy Act of 1974 and turn over all documentation related to l\/lontgomery’s interview
with the FBI. Compl. at ll 108. Spccifically, plaintiffs seek "any and all documents that
refer or relate in any way to any and all 302 reports of [:l\/lontgomery’s``_l interview" with the
1"131. /rl. at ll 103. l find, however, that the requested records are exempt from disclosure
under the l)rivacy Act, and thus l must grant summary judgment in defendants’ favor.
'1``he Privacy Act of 1974, 5 U.S.C. § 552a, “regulates the collection, maintenance,
use, and dissemination of information about individuals by federal agencics.” Mo/)le.y v.
(1'1/1, 924 l-". Supp. 2d 24, 35 (D.D.C. 2013) (internal quotation marks omitted), a_/``“"a' 806
l".3d 568 (D.C. Cir. 201 5). Under the Act, any “agency that maintains a system of records”
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must "upon request by any individual to gain access to his record or to any information
pertaining to him which is contained in the system`` permit him . . . to review the record and
have a copy made of all or any portion thereof in a form comprehensible to him."`` 5 U.S.C.
§ 552a(d``)(1). But agencies are permitted to exempt systems of records from this
requirement under certain circumstances See /.'o’. § 552zi(j)(2). Spccifically, exemption
(j)(2) applies if “( 1) the records are stored in a system of records that has been designated
by the agency to be exempt from the Privacy Act"s disclosure requirements and (2) thc
system of records is ‘maintained by an agency or component thereof which performs as its
principal function any activity pertaining to the enforcement of criminal lawl:sl’ and
consists of °iiif<)i'inati<)n compiled for the purpose of a criminal investigation." Boe/z/n v.
1713/19481*``. Supp, 2d 9, 18 (D.D.C. 2013) (quoting 5 U.S.C. § 552a(j)(2)).
l'lcre_ the 302 reports that plaintiffs seek fall squarely within exemption (j)(2). 'l"he
1"111 is an agency that "performs as its principal function . . . the enforcement of criminal
lawls|." lcl. And plaintiffs do not dispute that all 302 reports#including the one requested
here-arc maintained within the l~*``Bl"s Central Records System, see 1’1s’ ()pp’n 25-27,
which is an exempt system of records pursuant to 28 C.l".R. § 16.96. See 28 C.l"'".R. § 16.96
(exempting the l"`` 131"s Ccntral Records System from the access provision in 5 U.S.C.
§ 552a(d)); see also Lee v. FBI, 172 F. Supp. 3d 304, 308 (D.D.C. 2()16)(“'1``he FBl’s CRS
is a system of records specifically exempt from the individual access provision , . . of the
l)rivacy Act to the extent permitted under 5 U.S.C. § 552a(l)(2), as implemented by 28
C.l".R. § 16.96."). /\lthough our Circuit has held that documents contained in the l"``Bl’s
(i``entral l{ccords Systcm "qualify for exemption only if they constitute law enforcement
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records within the meaning of the statute," the requested documents at issue in this case
clearly meet that standard Doe v. FB[, 936 1*``.2d 1346, 1353 (D.C. Cir, 1991) ('emphasis
added). 1"``1_)-302 reports are necessarily related to the FBl’s law enforcement function See
lelardy Decl. ll 22 (defining a 302 report as a form "used by the l*``Bl to document interviews
conducted in law enforcement investigations”). And this court has held that exemption
(j)(2) specifically applies to 302 reports See, e.g., Taylor v. U.S. Dep ’l o/‘”JZ.istice, 257 F.
Supp. 2d 101, 107 (D.D.C. 2003) (concluding that l"D-3()2 reports contained in the FBl’s
Ccntral Rccords System “arc wholly exempt under l:Privacy /\ct| exemption (j)(2)”).
l)ef``cndants’ motion for summary judgment on this count must accordingly be granted
F. Count VII: Fraudulent Misrepresentation
Plaintiffs next claim that the FBI, “at the direction of and under the leadership of
Defendant Comey,” falsely represented to Montgomery that the FBI would conduct an
investigation into the evidence contained on his hard drives and in his oral testimony. 1a’.
at ll 110. '1``hey allege that the li``Bl made this false representation with knowledge of its
falsity and with an intent to deceive l\/lontgomery in order to induce him to turn over his
hard drives and provide testimony under oath. lcl. at ll 111. llnfortunately for plaintiffs
their claim for fraudulent misrepresentation suffers the same fate as their claim for
conversion
l"raudulcnt misrepresentation like conversion, is a common-law tort claim that may
only be asserted against the United States pursuant to a waiver of sovereign immunity
under the l*"l"C/\. /\nd “tlie United States is the only proper defendant in an [:l"<"l``C/-\]
action."y S/)i'inger, 2004 \'l\/l1 2348134, at *1. lelerc, plaintiffs have failed to name the
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l_lnited Statcs as a defendant Se.e Compl. p. 30 (naming Comcy and the l*``Bl as the sole
defendants under Count Vll). "l``hus, like their claim for conversion, plainti'f"fs’ claim for
fraudulent misrepresentation must be dismissed for lack ofsubject matterjurisdiction See
FDI(,`` v. Meyer, 510 U.S. 471, 475 (1994) (“Sovereign immunity is jurisdictional in
naturc."').
G. Count VIIl: Fourth Amendment Violation
The second Fourth Amendment claim in this case is different in kind from the first,
but it ultimately must suffer the same fate. Montgoinery claims that the FBI violated his
l"ourth Amendment rights when its agents raided his home, tied him to a tree, threatened
him and his family, and searched and seized his property without probable cause or a
warrant. Compl. ll 1 17. 'fo compensate him for his alleged injuries he seeks an award of
compensatory and actual damages in excess of$3 million and punitive damages in excess
of $30 million. 1(/. at ll 120. l have concludcd, however, that l\/lontgomcry’s claim is
barred llow so'?
'1``he Supreme Court has made clear that “|_fi:|edcral constitutional claims for damages
are cognizable only under Bivens[, 403 U.S. at 388], which runs against individual
government officials pcrsonally. Loii/nief v. United S/ales, 828 13``.3d 935, 945 (D.C. Cir.
2016``), ()therwise, "s<)vei'eign immunity shields the Fedcral Government and its agencies
from suit.” Del)/'ew v. Atwooa’, 792 l"``.3d 1 18, 124 (l).C. Cir. 2015). Here, plaintiffs named
only the l"`` 131 as defendant for the alleged violation of l\/lontgomery’s l"``ourth Amendment
rights and resulting injuries; they did not name any defendants in their individual capacities
or otherwise allege a B/'vens claim. See Compl. p. 31. Plaintiffs" fourth Amendment claim
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under Count Vlll must therefore be dismissed for lack of subject matterjurisdiction C/.``
Meye/", 510 U.S. at 457 (“Sovereign immunity isjurisdictional in nature.”).
H. Plaintiffs’ Motion for a Preliminary Injunction
1n Count 111 of their Complaint, plaintiffs request preliminary and permanent
injunctive relief to stop the government from wiretapping and surveilling them in violation
of their flourth Amendment rights Compl. llll 81-88. 1n their l\/lotion for a Preliminary
lnjunction plaintiffs request additional equitable relief that encompasses Counts \/, Vl,
and Vll of their Complaint. Specifically, plaintiffs request that l issue an order enjoining
defendants f``rom: (l) destroying evidence of their constitutional violations contained on
l\/lontgomcry"s hard drives; (2) destroying documents related to l\/lontgomcry’s interview
with the l"Bl; and (3) continuing their conversion ofl\/lontgomery’s hard drives Pls.’ l\/lot.
15-16. Unf``ortunately for plaintiffs 1 find that they have not met their burden for a
preliminary injunction for any ofthe relief that they seek.
'l"o begin with, plaintiffs cannot show a likelihood of success on the merits5 on any
ofthe claims that form thc basis of their motion for a preliminary injunction As discussed
plaintiffs cannot prevail on their l"ourth Amendment claim regarding unlawful surveillance
5 'l``here is tension in the case law regarding whether a plaintiff seeking a preliminary injunction must show
a "likelihood of success on the merits” or a “substantial likelihood of success on the merits.” Compare
Wiii/er v. l\lal. Res. De/.`` Councz'/, 1nc., 555 U.S. 7, 20 (2008) (requiring the plaintiffto show “1ikely” success
on thc merits), with Sollera, Inc. v. FDA, 627 F.3d 891, 893 (D.C. Cir. 2010) (requiring the plaintiffto show
a “substantial likelihood” of success on the merits). Unfortunately, our Circuit has avoided clarifying the
standard See, e.g., PursuingAmerl'ca's G)"ealness v. Feal. E/ec. Com/n., 831 F.3d 500, 505 n.l (D.C. Cir.
2016) (“We need not resolve here any tension in the case law regarding the showing required on the merits
for a preliminary injunction . . . [because plaintiffl meets either standard.”). But even if plaintiffs need
only show a likelihood of success on the merits_the less demanding standard~they have patently failed
to do so. 1 therefore need not resolve the ambiguity our Circuit has left in play on this issue.
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because they lack standing to do so, they cannot prevail on their common-law tort claims
for conversion and fraudulent misrepresentation because they have sued the wrong parties
and they cannot prevail on their claim under thc Privacy /-\ct because the requested
documents are exempt from disclosure Plaintiffs thus have failed to satisfy the first------and
most important~---factor for a preliminary injunction6 See EleC. Pr/'vacy ln_]‘o. Cl/”. v. FTC,
844 l"``. Supp. 2d 98, 101 (D.D.C. 2012) (‘“l``he likelihood ofsuccess requirement is the most
important of these factors.").
_l)laintiffs also have not shown that they are likely to suffer irreparable harm in the
absence of an injunction Because 1 have already concluded that plaintiffs’ allegations of
government surveillance and hacking arc speculative at bcst, those allegations necessarily
cannot support a finding of irreparable harm. See B/”own v. Disl. of('..``ola)nb/.``a, 888 1*``. Supp.
2d 28q 31< 2 (l').l``_).C. 2012) (explaining that the standard for establishing irreparable harm
is "quite liigli,” and that the impending harm must “be both certain and great” as well as
"actual and not theoretical"'). /\nd plaintiffs’ allegations ofconversion non-disclosure and
fraudulent misrcprcsentation fare no better. Plaintiffs allege that they would suffer
irreparable harm if l\/lontgomery’s hard drives and video interview are not preserved
because they constitute “direct proof" of defendants’ unconstitutional spying on which this
° Our Circuit has traditionally evaluated the four factors required for a preliminary injunction on a “sliding
scale,” such that, “[ilftlie movant makes an unusually strong showing on one ofthe factors then it does
not necessarily have to make as strong a showing on another factor.” Davl's v. Pensl'on Ben. Guar. Co/'p.,
571 F.3d 1288, 1291-92 (D.C. Cir. 2009). lt is not clear, however, whether our Circuit’s sliding-scale
approach survives the Supreme Court’s decision in Winler, 555 U.S. at 7. See Sher/ey v. Selvelias, 644 F.3d
388, 393 (D.C. Cir. 201 l) (“[Wle read Winler at least to suggest ifnot to hold that a likelihood of success
is an independent, free-standing requirement for a preliminary injunction.” (internal quotation marks
omitted)). l need not, however, resolve our Circuit’s lack ofclarity on this issue because 1 conclude that a
preliminary injunction is improper “even under the less demanding sliding-scale analysis." Ia’.
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lawsuit is premised Pls." l\/lot. 16. The harm that plaintiffs fear, however, is unwarranted
At the status conference in this case, counsel for the Government defendants represented
to this Court that the “hard drives are in a secure facility with the [llntelligence
[Clommunity’s Office of lnspector General” and that there was “no risk” that they were
“going to be destroyed anytime soon.” Status Hr’g Tr. 15:13~18, 19:13-15, June 23, 2017.
1 also instructed the Government to put a litigation hold on the video of the interview, as
well_as any related FD-302 reports ia’. at 33:16-25, and the Government has confirmed
that it has done so. Gov’t Defs.’ l\/lem. 42. Plaintiffs therefore cannot show that the
impending harm they fear is anything more than theoretical
Finally, plaintiffs have not shown that the balance of equities weighs in favor of
granting a preliminary injunction here. Plaintiffs’ primary argument on this point is that,
without preservation of the hard drives and the interview tapes they “will lose the material
evidence in this case.” Pls.’ l\/lot. 18. But as 1 have already explained the Government has
represented to this Court that there is a litigation hold preventing the destruction of either
the hard drives or the interview tapes T here is accordingly no need for a preliminary
injunction to ensure that plaintiffs’ material evidence is preserved Plaintiffs also claim
that public interest considerations counsel in favor of issuing an injunction here because
"“|i|t is always in the public interest to prevent the violation of a party’s constitutional
rights.”’ Ia’. at 19 (quoting/l)n Freea’o)n Def. Initiatl``ve v. Wasn. Melro. Area Transz't/luth.,
898 F. Supp. 2d 73, 84 (D.D.C. 2012). But, as 1 have already concluded plaintiffs have
not made the requisite showing that a constitutional violation actually occurred here.
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Plaintiffs accordingly cannot show that it Would be in the public interest to grant an
injunction to prevent the alleged unconstitutional surveillance they allege has occurred
CONCLUSION
This case marks what 1 expect will be the end of this Court’s role in adjudicating
plaintiff Klayman’s challenges to the Govemment’s various surveillance programs While
the diligence with which Klayman has sought to protect Americans’ constitutional rights
against Government overreach over the last four and a half years is admirable, the
allegations in this case, though sincerely advanced are largely frivolous and duplicative of
ones 1 have already found to be insufficient in Klayman 1 and Klayman 11 . As such, 1 have
no choice but to dismiss this case as well.
Thus, for all the reasons stated herein, the Government Defendants’ Motion to
Dismiss and for Partial Summary Judgment is GRANTED, the lndividual Defendants’
Motion to Dismiss is GRANTED, and Plaintiffs’ Motion for a Preliminary Injunction is
DENIED. Plaintiffs’ complaint is accordingly DISMISSED with prejudice A separate
Order consistent with this decision accompanies this Memorandum Opinion.
(' ' t
\&\lmmm\l
Rch iARba-‘. LEoN
United States District Judge
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