Kelley v. Fed. Bureau of Investigation

• Decision Date: 15 September 2014
• Docket Number: Civil Action No. 13–0825 ABJ
• Citation: 67 F.Supp.3d 240
• Court: U.S. District Court — District of Columbia
• Parties: Gilberte Jill Kelley, et al., Plaintiffs, v. Federal Bureau of Investigation, et al., Defendants.

67 F.Supp.3d 240

Gilberte Jill Kelley, et al., Plaintiffs

v.Federal Bureau of Investigation, et al., Defendants.

Civil Action No. 13–0825 ABJ

United States District Court, District of Columbia.

Signed September 15, 2014

Alan Charles Raul, Edward R. McNicholas, Sidley Austin LLP, Washington, DC, for Plaintiffs.

John Russell Tyler, Peter J. Phipps, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge

Plaintiffs Gilberte Jill Kelley and Scott Kelley filed this lawsuit against defendants the Federal Bureau of Investigation, the United States Department of Defense, the United States Department of State, the United States of America, Leon Edward Panetta, Sean M. Joyce, George E. Little, Steven E. Ibison, Adam R. Malone, and John and Jane Does 1–10.¹ The amended complaint contains fourteen counts that assert a combination of claims based on alleged violations of the Privacy Act, 5 U.S.C. § 552a (2012) ; the Stored Communications Act, 18 U.S.C. § 2701 et seq. (2012) ; the Fourth and Fifth Amendments to the United States Constitution; and the law of four states. Am. Compl. ¶¶ 113–225 [Dkt. # 19].

Defendants FBI, DOD, State Department, and United States have moved to dismiss plaintiffs' Privacy Act, Stored Communications Act, and state law claims for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Defs.' Mot. to Dismiss (“Defs.' Mot.”) [Dkt. # 34]. Defendants Joyce, Ibison, and Malone also filed a Rule 12(b)(6) motion to dismiss the Fourth and Fifth Amendment Bivens claims asserted against them in their individual capacities for failure to state a claim upon which relief can be granted. Mot. to Dismiss by Defs. Joyce, Ibison, & Malone (“Indiv. Defs.' Mot.”) [Dkt. # 35]. Plaintiffs opposed both motions. Pls.' Consolidated Opp. to Defs.' Mots. to Dismiss & Mem. in Supp. of the Mot. to Set Aside the Gov't's Certification (“Pls.' Opp.”) [Dkt. # 37].

This case arose out of plaintiffs' receipt of anonymous and troubling emails from a woman who has since been identified as Paula Broadwell. At the time, Ms. Broadwell was involved in an extramarital affair with General David Petraeus, who was then the Director of the Central Intelligence Agency (“CIA”), and who was also a friend of the Kelley family. The Kelleys reported the emails to an acquaintance in the FBI, and the investigation that is at the heart of this lawsuit ensued. The gravamen of the amended complaint is set out in its opening paragraphs:

There is no question that Mrs. Kelley and Dr. Scott Kelley were the victims of and witnesses to a potential cyberstalking crime. There is no question that they reported the facts to the FBI out of concerns for their own physical safety and the safety of their friends who were among the nation's most senior intelligence and military leaders.

There is also no reasonable argument that in exchange for their coming forward as good citizens they became the target of an unreasonable and intrusive investigation, and a malicious smear campaign where their names, emails, and damaging (as well as false) information were leaked to the media.

Am. Compl. ¶¶ 3–4. Plaintiffs seek declaratory and injunctive relief and money damages to vindicate these alleged violations of their legal rights and intrusions upon their privacy. Id. ¶ 2.

The amended complaint is a long, overwrought, and argumentative document, and its 225 paragraphs are full of indignation while being thin on facts. But the Court finds that plaintiffs have set forth sufficient factual allegations to withstand the motion to dismiss Count 1 to the extent that it asserts unlawful disclosure of information to the media because there are sufficient facts presented in the amended complaint to satisfy plaintiffs' burden to state a plausible Privacy Act claim.

With respect to the other claims, though, the Court finds that plaintiffs have failed to plead sufficient facts to support a plausible inference that the conduct underlying the Privacy Act claims in Counts 2 through 6 and the portion of the claim in Count 1 that is based on the FBI's disclosure of records to the DOD was intentional and willful, so those counts will be dismissed. The Court will also grant the motion to dismiss the Stored Communication Act claims in Counts 7 and 8 under Rule 12(b)(1) because plaintiffs did not first present those claims to the appropriate agency, and therefore, the Court lacks subject matter jurisdiction over them. Counts 9 and 10 will be dismissed on the grounds that it would be improper to imply a Bivens remedy for the constitutional violations that are alleged.

Further, because plaintiffs have failed to rebut the presumption that defendants Panetta, Little, Joyce, Ibison, and Malone were acting within the scope of their employment when they allegedly committed the state law torts in Counts 11, 13, and 14, the Court does not have subject matter jurisdiction over those claims, and they will therefore be dismissed as to those defendants.² The Court will also grant the motion to dismiss the false light claim against defendants Panetta and Joyce in Count 12 because neither Virginia nor Florida recognizes that cause of action.

Whether plaintiffs will be able to prove the remaining claims is a question for another day, but for now, the case will proceed, albeit on a considerably more streamlined basis. The Kelleys may be rightfully aggrieved by the manner in which they were depicted in the media and by the impact of the stream of sensational articles on their reputations, but it remains to be seen if those harms can be laid at the feet of these defendants.

BACKGROUND

I. Factual Background³

Plaintiffs Gilberte Jill Kelley and Scott Kelley are husband and wife, and they live in the state of Florida. Am. Compl. ¶¶ 17–19. According to the amended complaint, prior to the events giving rise to this case, Mrs. Kelley was “a community leader and liason to the military community in Tampa,” which is comprised of servicemen and women assigned to MacDill Air Force Base and the United States Central Command. Id. ¶¶ 17, 30–31. The amended complaint also states that in early 2012, the Republic of Korea nominated Mrs. Kelley to serve in a position entitled “Honorary Consul” under the Vienna Convention on Consular Affairs of 1963, Art. 10, and that she was officially appointed as of August of that year. Id. ¶¶ 17, 33, 36. The State Department issued her an identification card bearing a State Department identification number as well as a State Department approved Florida license plate, noting her status. Id. Scott Kelley is a general surgeon and surgical oncologist who maintains a private practice in the Tampa area. Id. ¶ 18.

Through their involvement in the community, plaintiffs came to know both the former CIA Director David H. Petraeus, who had previously served as a General in the United States Army, and United States Marine Corps General John R. Allen. Id. ¶ 32. The Kelleys state that as a couple and individually, they interacted and corresponded with General Petraeus and General Allen and their families on a regular basis. Id.

The series of events outlined in the amended complaint began in May of 2012, when an anonymous individual sent an email to General Allen that “disparaged Mrs. Kelley and made reference to an upcoming dinner ... with several senior U.S. and foreign intelligence, defense, and diplomatic officials.” Id. ¶ 38. In June, Dr. Kelley received a series of similar communications that revealed knowledge of Mrs. Kelley's activities. Id. ¶¶ 41, 43, 53. The plaintiffs were unnerved by the level of detail contained in the emails concerning Mrs. Kelley's personal activities, and Mrs. Kelley contacted FBI Counterintelligence Agent Fred Humphries twice to express her concerns. Id. ¶¶ 39–40, 42, 44. Around June 7, 2012, Agent Humphries introduced Mrs. Kelley to FBI Agent Adam Malone by email, and Mrs. Kelley learned that Agent Malone would be handling the investigation into what the amended complaint refers to as the “cyberstalking complaint:” the anonymous emails Dr. Kelley had received. Id. ¶ 44. From that point on, Mrs. Kelley contacted Agent Malone to report any additional harassing emails her husband received. Id.

After making an initial attempt to identify the anonymous email sender, FBI agents asked Mrs. Kelley for the login and password to Dr. Kelley's email account to obtain the sender's IP address. Id. ¶ 47. The amended complaint alleges that the agents assured Mrs. Kelley that they would not access the contents of plaintiffs' emails and that they would only access Dr. Kelley's account to obtain the anonymous sender's IP address by opening the original anonymous email Dr. Kelley received. Id. ¶¶ 47–48. The Kelleys aver that Mrs. Kelley agreed to give access for that limited purpose, and that she denied the agents' follow-up request that she authorize access to other emails in the account. Id. ¶¶ 49–50. They further maintain that Dr. Kelley did not authorize the FBI to access his email account beyond the limited goal of obtaining the IP address, and that Agent Malone periodically assured plaintiffs that the FBI would respect their privacy and would not disclose their names. Id. ¶¶ 45, 51, 54.

In about mid-August, Agent Malone informed Mrs. Kelley that the FBI had identified the anonymous email sender, but he did not provide her with any additional information, despite her requests about obtaining security or protection.Id. ¶ 54. It was later revealed that Paula Broadwell, the woman who was having an extramarital affair with General Petraeus, had sent the emails. See id. ¶¶ 55–56. Plaintiffs had never met or spoken to Mrs. Broadwell. Id. ¶ 57.

The amended complaint sets forth a number of grievances that arose in connection with the above events: plaintiffs complain that the FBI did not provide them with a victims' assistance coordinator...