Attkisson v. Holder, 18-1677
| Citation | 925 F.3d 606 |
| Decision Date | 17 May 2019 |
| Docket Number | No. 18-1677,18-1677 |
| Parties | 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. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
ON REHEARING
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.
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 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) ().
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 "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 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 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.
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’ 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,...
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