Tooley v. Napolitano

• Decision Date: 20 February 2009
• Docket Number: No. 07-5080.,07-5080.
• Citation: 556 F.3d 836
• Parties: Scott TOOLEY, Appellant v. Janet NAPOLITANO, Homeland Security Secretary, In Her Official Capacity, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

556 F.3d 836

Scott TOOLEY, Appellant v. Janet NAPOLITANO, Homeland Security Secretary, In Her Official Capacity, et al., Appellees.

No. 07-5080.

United States Court of Appeals, District of Columbia Circuit.

Argued December 4, 2008.

Decided February 20, 2009.

Appeal from the United States District Court for the District of Columbia (No. 06cv00306).

Cassandra S. Bernstein, appointed by the court, argued the cause for amicus curiae in support of appellant. With her on the briefs were Richard P. Bress and Gabriel K. Bell.

Scott Tooley, appearing pro se, was on the brief for appellant.

Teal Luthy Miller, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Gregory G. Katsas, Assistant Attorney General, and Douglas.

Letter, Litigation Counsel. Anthony A. Yang, Attorney, entered an appearance.

Before: SENTELLE, Chief Judge, and TATEL, Circuit Judge, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge WILLIAMS.

Dissenting opinion filed by Chief Judge SENTELLE.

WILLIAMS, Senior Circuit Judge:

According to Scott Tooley's complaint, he phoned Southwest Airlines in the spring of 2002 to buy tickets to fly to Nebraska to visit his family. At the end of the call, after Tooley had provided Southwest with his name and contact information, the airline representative asked Tooley if he had any "comments, questions, or suggestions." Compl. ¶ 18. Tooley responded that, in the wake of the September 11 attacks, Southwest should screen 100 percent of "everything," and that without "proper security" Tooley and other members of the traveling public were "less safe due to the potential that those who wish to harm American citizens could put a bomb on a plane." Compl. ¶¶ 19-20. The Southwest representative responded with alarm and declared "you said the `b' word, you said the `b' word." Tooley Aff. ¶ 7. Tooley attempted to explain to the representative that she had not understood him correctly, but she nevertheless placed him on hold. After 20 minutes, Tooley finally hung up. Id.

According to Tooley, the ticket agent's seeming paranoia was not the end of the matter. Other events followed, which he ascribes to various government officials; those remaining in the suit, after a partial dismissal by Tooley, are the United States Attorney General, the Secretary of the Department of Homeland Security, and the Administrator of the Transportation Security Administration, all sued solely in their official capacities (collectively, the "government"). See Tooley v. Bush, No. 06-306, 2006 WL 3783142, at *1 (D.D.C. 2006) (detailing the defendants initially included in Tooley's complaint and his later dismissals).

Tooley claims that in the fall of 2003, more than a year after the call to Southwest, he began to notice problematic phone connections, including "telltale" intermittent clicking noises. Compl. ¶ 21. He alleges, "[u]pon information and belief," that his telephone problems were caused by illegal wiretaps placed on his residential landline phone, his landline phone at his former residence, his cellular phone, his wife's cellular phone, the phones of his father, brother, sister, and in-laws, and his family's phone in Lincoln, Nebraska, where relatives from "France made calls from France to the home, where Mr. Tooley was visiting his mother for the week." Id. ¶ 22. Tooley claims that these alleged wiretaps were placed in response to the comments he had made to Southwest's representative.

In addition, he alleges that the government has placed him on "one or more terrorist watch lists" and that as a result he is "being illegally monitored by Defendants." Id. ¶ 25. This illegal monitoring has allegedly taken various forms, including the placement of permanent "Radio Frequency Identification Tags" on Tooley's vehicle and improper detentions and searches at airports. Id. ¶¶ 23-24. Tooley also claims, in an affidavit submitted to the district court, that in March of 2005, when then-President George W. Bush visited Louisville, Kentucky, where Tooley currently resides, "an officer in a Ford Crown Victoria sat out in front of [Tooley's] home for approximately six (6) hours a day" during the week leading up to and the week of President Bush's visit. Tooley Aff. ¶ 19.

In order to obtain more information regarding this allegedly illegal surveillance, Tooley submitted several requests under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. See Tooley, 2006 WL 3783142, at *3-8 (detailing the various FOIA requests). After the requests failed to yield any information confirming his suspicions, Tooley filed the present case in the district court. Counts I and II charge Fourth Amendment and constitutional right to privacy violations, respectively; Count III claims a First Amendment violation on the theory that the government's illegal surveillance had caused him to curtail his speech. Count IV sought declaratory relief under FOIA.

The district court granted the government's motion for summary judgment on the FOIA count, Tooley, 2006 WL 3783142, at *21, and Tooley does not challenge that decision. As to Counts I through III, the government moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) on the ground that Tooley lacked Article III standing. The district court addressed the standing arguments by dividing Tooley's allegations into three categories based on the character of the government's alleged unlawful behavior—wiretapping; physical surveillance (including the claim that Defendants unlawfully placed a Radio Frequency Identification Tag on Tooley's vehicle); and the unlawful placement of Tooley's name on a terrorist watch list. Tooley, 2006 WL 3783142, at *22.

The court held that Tooley lacked Article III standing for both the wiretapping claims and physical surveillance claims. It reasoned that "it is altogether possible" that Tooley was the subject of "entirely lawful wiretaps placed by state or local law enforcement agencies" and that Tooley could not show that it was a federal agent responsible for any of his alleged physical surveillance. Id. at *23, 25.

As to Tooley's being placed on terrorist watch lists, the court found Article III standing, but nonetheless dismissed Tooley's claim on the basis of another subject matter jurisdiction problem. Tooley, 2006 WL 3783142, at *26. Focusing solely on the Transportation Security Administration ("TSA") watch lists, the court found, in reliance on 49 U.S.C. §§ 46110(a), (c), that such lists "are incorporated into Security Directives issued by TSA ... and Congress has vested exclusive jurisdiction to review such directives in the Court of Appeals." Id.

Tooley now appeals the district court's dismissals of Counts I through III, arguing that the district court improperly applied the "liberal requirements of notice pleading" and rested its conclusions "on a basic misreading of the Complaint." Petr. Br. 2. Thin as Tooley's claims appear, we agree and therefore reverse and remand the case.

* * *

To establish constitutional standing a plaintiff must show an injury in fact that is fairly traceable to the challenged conduct and that will likely be redressed by a favorable decision on the merits. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The burden on the plaintiff to show each element grows increasingly stringent at each successive stage of the litigation. Id. at 561, 112 S.Ct. 2130. At the pleading stage, Federal Rule of Civil Procedure 8(a) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," from which it follows that "general factual allegations of injury resulting from the defendant's conduct may suffice." Lujan, 504 U.S. at 561, 112 S.Ct. 2130. At the summary judgment stage, by contrast, "the plaintiff can no longer rest on ... mere allegations" but must set forth specific facts by affidavit or other evidence. Id. (internal quotations omitted). In the absence of district court resolution of disputed issues of material fact, we review a dismissal for lack of standing de novo. Muir v. Navy Fed. Credit Union, 529 F.3d 1100, 1105 (D.C.Cir.2008).

The Supreme Court's decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), has produced some uncertainty as to exactly what is required of a plaintiff at the pleading stage. See Aktieselskabet AF 21. November 2001 v. Fame Jeans, 525 F.3d 8, 15 & n.3 (D.C.Cir.2008) (gathering cases suggesting that courts "have disagreed about the import of Twombly"). In Fame Jeans, however, we concluded that "Twombly leaves the longstanding fundamentals of notice pleading intact." Id. at 15. Thus, we "must assume all the allegations of the complaint are true ... and ... must give the plaintiff the benefit of all reasonable inferences derived from the facts alleged." Id. at 17 (internal citations and quotations omitted). This liberal pleading standard requires a court to deny a motion to dismiss "even if it strikes a savvy judge that ... recovery is very remote and unlikely." Twombly, 127 S.Ct. at 1965. So long as the pleadings suggest a "plausible" scenario to "sho[w] that the pleader is entitled to relief," a court may not dismiss. Id. at 1966.

In finding that Tooley lacked standing, the district court delved into an examination of the merits of Tooley's claim and found them wanting. For example, in evaluating Tooley's wiretapping claim, the district court surmised that "Plaintiff has been the subject of entirely lawful wiretaps placed by state or local law enforcement agencies." Tooley, 2006 WL 3783142, at *23. Injunctive relief, it reasoned, would be "ineffective if in fact, Plaintiff is the subject of wiretaps placed by someone other than federal officials or if there are actually no wiretaps." Id. at *24. Similarly, in evaluating Tooley's physical surveillance claims, the district court questioned whether the person...