Haase v. Sessions

Decision Date15 December 1987
Docket NumberNo. 85-5816,85-5816
Citation835 F.2d 902,266 U.S. App. D.C. 325
Parties, 9 Fed.R.Serv.3d 1103 Edward HAASE, Appellant v. William S. SESSIONS, Director, F.B.I., et al.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 85-0587).

David D. Cole and Michael Ratner, were on appellant's petition for rehearing.

Before WALD, Chief Judge, BUCKLEY, Circuit Judge, and EDWARD D. RE, * Chief Judge, United States Court of International Trade.


Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

Pursuant to a petition for rehearing, we vacate section III.B. of Haase v. Webster, 807 F.2d 208 (D.C.Cir.1986) ("Haase II "). Appellant, a journalist returning from Nicaragua, alleges that the FBI and the U.S. Customs Service searched his luggage at customs as part of an official, and unlawful, policy of the United States to collect information from visitors to Nicaragua, and perhaps other countries, suspected of carrying political items of interest to the government. Appellant seeks a declaratory judgment that this policy violates statutory law and the Constitution. The district court dismissed this claim for want of standing. We remanded, holding that the record evidence did not support summary judgment, but that the government must be afforded the opportunity to demonstrate by affidavit or otherwise that no such policy exists, in which case a denial of standing would be appropriate.

Upon reflection we find that the district court improperly converted the government's motion to dismiss into a motion for summary judgment by operation of Rule 12(b). See Haase v. Webster, 608 F.Supp. 1227, 1229 n. 1 (D.D.C. 1985) ("Haase I "). This procedural error, which we followed, Haase II, 807 F.2d at 216, but now correct, leads to a new outcome.

In explaining our present conclusion, we find it necessary to survey a surprisingly uncharted terrain involving the application of Rules 12(b) and 56 of the Federal Rules of Civil Procedure to standing doctrine and the attendant distinction between a motion to dismiss for want of standing and motion for summary judgment for want of standing. We summarize our findings at the outset.

We find that appellant Haase has failed to plead sufficient facts to warrant standing for declaratory relief. Pursuant to this remand, Haase will have the opportunity to plead additional facts. There are three possible outcomes. If the pleadings are still insufficient, the complaint must be dismissed for want of standing. If the district court is uncertain as to the sufficiency of the pleadings, it can order evidentiary hearings on its own motion and then rule on the standing question. If the pleadings meet the requirements of Article III standing, the court has proper jurisdiction.

Notwithstanding this latter finding, the government retains the opportunity, at its option, to challenge the evidentiary basis of the pleadings. It does so by filing a motion for summary judgment for want of standing. In this procedural posture, discovery by either party is appropriate, though it is necessarily limited by whatever defenses and privileges the government-defendant can properly assert. Pursuant to Supreme Court instruction and a recent decision in this circuit, the principal consequence in terms of standing law is that the plaintiff must show injury with greater specificity due to the expansion of the record evidence. United States v. SCRAP 412 U.S. 669, 689-90 n. 15, 93 S.Ct. 2405, 2417 n. 15, 37 L.Ed.2d 254 (1973); Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 45 n. 25, 96 S.Ct. 1917, 1927-28 n. 25, 48 L.Ed.2d 450 (1976); Wilderness Soc'y v. Griles, 824 F.2d 4 (D.C.Cir.1987). The task then falls to the district court to evaluate the standing claim based on evidentiary findings, rather than pleading allegations.

These procedures apply as a general matter to all standing cases, as a defendant's challenge to a plaintiff's standing can take two forms: a motion to dismiss, which is based exclusively on plaintiff's pleadings, and a motion for summary judgment, in which evidence, not pleadings, pertinent to standing are evaluated by the district court. In both instances, disputed facts must be construed in the light most favorable to plaintiff. In addition to these two party-initiated motions, the court on its own initiative may undertake evidentiary hearings, even in the context of a motion to dismiss. This is so because the ultimate responsibility to ensure subject matter jurisdiction always lies with the court, not the parties.

In sum, we conclude that the Federal Rules of Civil Procedure apply to issues of standing. In reaching this conclusion in the instant case, we are required to set forth our understanding of Supreme Court case law as it relates to the requirements of standing when plaintiffs seek declaratory relief. We conclude that appellant's complaint does not suffer the defects identified in the leading case of City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), as explained in Part II.B. of this opinion.


Edward Haase is a freelance journalist who has been actively critical of United States policy toward Nicaragua. On January 16, 1985, Haase returned from one of several trips to that country. When he arrived at Miami International Airport, Haase was asked a number of routine questions by a customs inspector who circled certain information on his declaration card (including the country visited and the fact that he was declaring reading material acquired in Nicaragua) and directed him to a second inspection station. There, another customs inspector searched Haase's bags and removed several books and magazines. The second inspector conferred with his supervisor, who called in an FBI agent to help determine whether these materials might be excludable under 19 U.S.C. Sec. 1305(a) (1982). Section 1305(a) prohibits the importation, inter alia, of books and pamphlets "advocating or urging ... forcible resistance to any law of the United States, or containing any threat to take the life of or inflict bodily harm upon any person in the United States...."

Sometime prior to the agent's arrival, the second customs inspector found a list of names and addresses that appeared to have been hidden behind a picture frame. He photocopied this list and gave the copy to the FBI agent when he arrived. The agent then questioned Haase, searched his luggage for subversive material, and removed and photocopied a number of items, including magazines, a diary, and a five-page list setting forth the names, addresses, and telephone numbers of organizations and individuals concerned about Central American affairs. All the originals were returned to Haase, who was then permitted to pass through customs.

On February 19, 1985, Haase brought an action in district court, claiming that the conduct of the FBI and customs agents had violated his rights under the first, fourth, fifth, and ninth amendments, infringed his right to privacy, and was ultra vires the agents' statutory authority. Haase sought two forms of relief. First, he asked for an injunction requiring the government to return or destroy all copies of his papers, to list all those who saw the documents, and to describe all use made by the FBI of the copies. Second, Haase sought a declaration that the seizure and reproduction of his papers violated his constitutional and statutory rights.

On March 26, 1985, the government moved for dismissal of Haase's complaint pursuant to Fed.R.Civ.P. 12(b). The government's motion asserted that Haase's complaint was moot insofar as it sought injunctive relief, and that Haase was without standing to seek declaratory relief. In support of its mootness claim, the government stated that it was prepared to place all copies of Haase's papers under seal in the registry of the district court and introduced a series of affidavits to establish that the papers had not been disseminated or further reproduced.

On April 18, 1985, Haase filed an amended complaint which alleged for the first time that the January 16 incident was the product of a policy of subjecting travelers returning from Nicaragua to intrusive border searches for intelligence-gathering purposes. Haase supported this allegation with the following material: (1) an affidavit of his attorney that recounted the experiences of other travelers who claimed they had been subjected to intrusive border searches upon returning from Nicaragua; (2) a number of newspaper articles that described similar searches; and (3) an affidavit in which he explained his plans to return to Nicaragua, and the chilling effect that his fear of future border searches would have on his journalistic activities.

The district court ruled on the government's motion to dismiss on May 14, 1985. See Haase I. Noting that the motion had been supported and opposed by affidavit, the court stated that, pursuant to Fed.R.Civ.P. 12(b), it would treat the motion as one for summary judgment. 608 F.Supp. at 1229 n. 1. The court dismissed as moot Haase's request for injunctive relief, a holding we affirmed in Haase II, 807 F.2d at 212-13, and do not now disturb.

The district court then considered whether Haase had standing to seek declaratory relief. Relying principally on City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), the court ruled that Haase's request for prospective relief did not rise to the level of a case or controversy under Article III of the Constitution because he had not demonstrated a sufficient probability that he would be subjected to another search like that of January 16. The court rejected Haase's allegation of an official policy of harassing travelers returning from Nicaragua as "altogether too phantasmal to warrant discovery of the magnitude which would be necessary to...

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