Harris v. Holder

• Citation: 885 F.Supp.2d 390
• Decision Date: 17 August 2012
• Docket Number: Civil Action No. 11–1902 (CKK).
• Parties: Beverly M. HARRIS, Plaintiff, v. Eric H. HOLDER, Jr., et al., Defendants.
• Court: U.S. District Court — District of Columbia

885 F.Supp.2d 390

Beverly M. HARRIS, Plaintiff,

v.Eric H. HOLDER, Jr., et al., Defendants.

Civil Action No. 11–1902 (CKK).

United States District Court,

District of Columbia.

Aug. 17, 2012.

Beverley M. Harris, Cypress, TX, pro se.

William Mark Nebeker, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, District Judge.

This matter is before the Court on Defendants' Motion to Dismiss Amended Complaint.¹ For the reasons discussed below, the motion will be granted.

I. BACKGROUND

Plaintiff, who describes herself as “a Compensated Disabled Veteran of the United States Air Force, an Air Traffic Controller, an Aerospace Engineer, a Federal Government Contract Specialist, and a former University Professor,” Am. Compl. ¶ 14, served approximately 10 years in the Air Force prior to accepting a position “on September 9, 2002 to work as a Contract Specialist with the Air Force's 89 Contracting Squadron at Andrews Air Force Base” in Maryland, id. ¶ 26. The Air Force had awarded plaintiff a recruitment bonus of $9,400 in light of her engineering experience. Id. ¶ 27. She soon learned that a manager, Ellen Siozon, “was responsible for her receiving the recruitment bonus,” and within months Ms. Siozon “was demanding funds from the recruitment bonus and making threats of firing [plaintiff]” if she did not pay a kickback. Id. “Reluctantly [plaintiff] gave ... Siozon $2,000 in cash as ... requested,” only to have Ms. Siozon demand additional funds. Id. Plaintiff apprised the Air Force Office of Special Investigation (“AFOSI”) of the situation, and AFOSI in conjunction with the Federal Bureau of Investigation (“FBI”) “launched an investigation” during which plaintiff was asked “to work with them [ ]undercover” by wearing a recording device. Id. AFOSI and FBI agents arrested Ms. Siozon in September 2003, id., and “[t]he government tried the extortion case to the Baltimore Federal Court ... in 2004,” id. ¶ 3. Plaintiff testified at the trial. See Mem. of P. & A. in Supp. of Defs.' Mot. to Dismiss Am. Compl. (“Defs.' Mem.”) at 2 n. 4. The government “lost the case,” and the individual who informed plaintiff of the outcome of the trial “was noticeably disappointed, seem[ed] very unsatisfied and bitter based on the tone of voice,” in plaintiff's estimation. Am. Compl. ¶ 3.

Plaintiff's participation in the Siozon matter apparently was the origin of her subsequent woes, all of which she attributes to the United States Attorney General and his subordinates who, “[t]o achieve their political and public relation goals and public image,” have “trampled on [plaintiff's] constitutional rights and their own rules.” Id. ¶ 4.

According to plaintiff, the United States Department of Justice (“DOJ”) and the FBI, in violation of the Privacy Act, see5 U.S.C. § 552a(b), “intentionally and willfully have disclosed records kept by the agencies pertaining to [plaintiff] in order to falsely implicate [her] and convey the false impression that the agencies was [sic] investigating [her] for some type of illegal acts,” id. ¶ 30. In addition, defendants also violated 28 C.F.R. § 50.2, a regulation intended “to prevent political pressures from encouraging agents to publicly smear a presumptively innocent, uncharged person like [her].” Am. Compl. ¶ 31; see id. ¶¶ 32–33. These unlawful disclosures allegedly occurred over the course of seven years, see id. ¶¶ 7, 47, and have resulted in plaintiff's continued unemployment “even though she has applied for more than 300 federal government jobs and more than 50 jobs with civilian companies,” id. ¶ 43. Plaintiff “believes that the FBI ... [has] been ‘blacklisting’ her and disseminating false and defamatory information to prospective employees.” Id. ¶ 47. The Attorney General and his subordinates allegedly are “providing to former employers, future employers, friends, family, business associates (including mortgage holder), neighbors, and local enforcement agencies scores of anonymous leaks detailing ... the events of the extortion investigation at Andrews Air Force Base and the trial in Baltimore.” Id. 9.a. (emphasis removed). Among the alleged disclosures is “defamatory and false information about subjective observations about [plaintiff's] character.” Id. The dissemination of “[f]alse and defamatory information ... attacking her character, and implicating her without evidence have prevented her from obtaining ... employment in her field of contracting, air traffic control, and aerospace engineering.” ²Id. ¶ 61. She deems this a violationof her “Fifth Amendment rights to liberty and property without due process of law.” Id. ¶ 59.

To further this effort, the FBI allegedly is “monitoring her telephone and computer,” and in some cases, the agency has intercepted email messages between plaintiff and prospective employers. Id. ¶ 47. Plaintiff alleges that, even though she “changed her telephone number six ... times between July 2011 and September 2011, changed her e-mail address twice, and created 3 other free e-mail accounts, the FBI found the changes and continued to monitor them all.” Id. ¶ 48. In addition, since April 2004 “electronic eavesdropping equipment” has been installed “on her private residence phone line and on her personal computers” for the “sole purpose” of “harass[ing her] by invading the most personal and private sphere of her life.” Id. ¶ 9.b. Surveillance is not always hidden. According to plaintiff the “so-called [ ]surveillance [is] so overt, extensive, and intrusive as to constitute deliberate harassment,” and defendants have gone so far as enlisting the assistance of Harris County, Texas officers “who are constantly parking in front of [plaintiff's] home,” resulting in her “mental home arrest.” Id. ¶ 9.c.

When plaintiff sought “to clear her name publicly and to bring light to the government's abuses ... [t]hey sought to chill any future efforts by [plaintiff] to speak out, defend herself, or complaint [sic].” Id. ¶ 44. These actions allegedly violated her “First Amendment right to free speech and to petition her government for redress of grievances.” ³Id. Even after returning to Texas from her last place of employment overseas, “federal agents increased the intensity of their ‘surveillance’ of [plaintiff].” Id. ¶ 46. For example, she asserts that local law enforcement officers, at defendants' behest, “park in front of her house, stop[ ] all friends, family, and business associates (including lawn maintenance individual) and harass them as well as record[ ] their license plates.” Id. According to plaintiff, “the constant, in-your-face government presence was designed to intimidate, punish and harass [her] for availing herself of her First Amendment rights and chill any future plans to exercise those rights.” Id.

For these alleged violations of rights protected by the First and Fifth Amendments to the United States Constitution, and for alleged violations of the Privacy Act and 28 C.F.R. § 50.2, plaintiff demandsa declaratory judgment, injunctive relief, and unspecified compensatory, exemplary and punitive damages, among other relief. Id. at 36 (Prayer for Relief).

II. DISCUSSION

In addition to the FBI and the DOJ, see Am. Compl. ¶¶ 24–25, plaintiff brings this action against United States Attorney General Eric Holder, Jr., FBI Director Robert Mueller, FBI Special Agents Gregorio Miceli, Patrick Kelley, Stephen Kelly, and Monique Bookstein, the DOJ's Inspector General, unknown FBI Special Agents and DOJ employees, and Gregory Giaccio, in both their official and individual capacities, id. ¶¶ 15, 17–23. Defendants move to dismiss the amended complaint on several grounds, arguing primarily that the pleading fails to state claims upon which relief can be granted.⁴See generally Mem. of P. & A. in Supp. of Defs.' Mot. to Dismiss Am. Compl. (“Def.'s Mem.”) at 12–37.

A. Dismissal Under Rule 12(b)(6)

The Federal Rules of Civil Procedure require that a complaint contain “ ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); accord Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). Rule 12(b)(6) tests the legal sufficiency of a complaint. See Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002). In considering such a motion, the “complaint is construed liberally in the plaintiff['s] favor, and [the Court] grant[s] plaintiff[ ] the benefit of all inferences that can be derived from the facts alleged.” Kowal v. MCI Comm'cns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994) (citation omitted). However, “the [C]ourt need not accept inferences drawn by plaintiff[ ] if such inferences are unsupported by the facts set out in the complaint.” Id. The Court need not accept “a legal conclusion couched as a factual allegation,” Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986), or “naked assertions devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks, brackets and citation omitted); see Mendez Internet Mgmt. Servs., Inc. v. Banco Santander de Puerto Rico, 621 F.3d 10, 14 (1st Cir.2010) (stating that Twombly and Iqbal standards require the court to “screen[ ] out rhetoric masquerading as litigation”).

The complaint must do more than set forth than “ ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action....’ ” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). “To survive a [Rule 12(b)(6) ] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its...