Wiebe v. Nat'l Sec. Agency

• Decision Date: 14 September 2012
• Docket Number: Civil Action No. RDB-11-3245
• Parties: JOHN WIEBE, ET AL. Plaintiff v. NATIONAL SECURITY AGENCY, ET AL. Defendant
• Court: U.S. District Court — District of Maryland

JOHN WIEBE, ET AL. Plaintiff

v.NATIONAL SECURITY AGENCY, ET AL. Defendant

Civil Action No. RDB-11-3245

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

Date: September 14, 2012

REPORT AND RECOMMENDATION

This matter has been referred to me for report and recommendation. [ECF No. 8]. Five individual petitioners have filed motions under Fed. R. Crim. Proc. 41(g), seeking return of certain property seized by government agents. The five cases have been consolidated for disposition in this Court. [ECF Nos. 12, 16, 18]. The Complaint brought by one of those five Petitioners, Diane Roark, has been dismissed for improper venue. [ECF No. 59]. Respondents National Security Agency and Federal Bureau of Investigation (collectively, "the Government") have filed a Motion to Dismiss or, in the alternative, for Summary Judgment. [ECF No. 46]. Two of the remaining four Petitioners, William E. Binney and John K. Wiebe, have filed counter-Motions for Summary Judgment [ECF Nos. 49, 53]. I have reviewed the motions and the oppositions and replies thereto. I also held a hearing on the motions on August 23, 2012. For the reasons set forth below, I recommend that the Government's Motion for Summary Judgment be granted in part and denied in part, and that Petitioners' Motions for Summary Judgment be denied.

I. Background

During the course of a criminal investigation, on July 26, 2007, the Government searched the residences of Petitioners Wiebe and Binney pursuant to search warrants. On that same date,Government agents searched the residence of Petitioner Edward Loomis after obtaining Mr. Loomis's consent. On November 28, 2007, Government agents searched the residence of Petitioner Thomas Drake pursuant to a search warrant. During each search, agents seized evidence including documents, computer accessories such as disks or CD Roms ("disks"), and computer hard drives ("HDDs"). Petitioners Wiebe, Binney, and Loomis were never charged with criminal conduct. The Government obtained an indictment against Petitioner Drake. United States v. Drake, RDB-10-0181 [ECF No. 1]. Eventually, Mr. Drake pled guilty to a misdemeanor offense of exceeding authorized use of a computer, and all remaining charges were dismissed. Id. [ECF No. 169]

Although some of the seized items have been returned to the Petitioners, the Government has refused to return other seized evidence.¹ The information contained in the disputed items falls into one of four categories: classified information, information protected by the National Security Agency Act of 1959 ("NSAA information"), government information controlled by other government agencies ("OGA information"), and unprotected information.² Through this action, Petitioners seek return of each disputed item in its entirety.

The Government has used the following process to evaluate each disputed item. A Special Agent, Tony T., reviewed the data contained in each item. Tony T. identified potentially classified and protected information. Decl. of Tony T. ¶¶ 7-10. Tony T. then forwarded a subset of material he believed to be classified or protected to Steven T., an "original TOPSECRET classification authority." Decl. of Steven T. ¶ 1. As an original TOP SECRET classification authority, Steven T. is responsible for confirming the classification of information. Decl. of Steven T. ¶ 7. Steven T. determined that each of the disputed items contains some classified information, NSAA information, or OGA information. Decl. of Steven T. ¶¶ 8-12. According to Steven T.'s Affidavit, that material is protected from release. Decl. of Steven T. ¶¶ 10 n.5, 13-14.

II. Legal Standards

Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Federal Rule of Civil Procedure 12(b)(6) authorizes the dismissal of a complaint if it fails to state a claim upon which relief can be granted; therefore, "the purpose of Rule 12(b)(6) is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006); see McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010) (Gregory, J., concurring) (citation omitted). A complaint must be dismissed if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" to plead a claim. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plausibility standard requires that the pleader show more than a sheer possibility of success, although it does not impose a "probability requirement." Twombly, 550 U.S. at 556. When considering a motion to dismiss under Rule 12(b)(6), this Court accepts as true the facts alleged in Plaintiff's Complaint. See Aziz v. Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011).

Rule 56 of the Federal Rules of Civil Procedure provides that a court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A material fact is one that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue over a material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In considering a motion for summary judgment, a judge's function is limited to determining whether sufficient evidence exists on a claimed factual dispute to warrant submission of the matter to a jury for resolution at trial. Id. at 249.

In undertaking this inquiry, this Court must consider the facts and all reasonable inferences in the light most favorable to the nonmoving party. Ricci v. DeStefano, 557 U.S. 557 (2009) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). However, this Court must also abide by its affirmative obligation to prevent factually unsupported claims and defenses from going to trial. Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993). If the evidence presented by the nonmoving party is merely colorable, or is not significantly probative, summary judgment must be granted. Anderson, 477 U.S. at 249-50. On the other hand, a party opposing summary judgment must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see In re Apex Express Corp., 190 F.3d 624, 633 (4th Cir. 1999). This Court has previously explained that a "party cannot create a genuine dispute of material fact through mere speculation or compilation of inferences." Shin v. Shalala, 166 F. Supp. 2d 373, 375 (D. Md. 2001) (citations omitted).

Fed. R. Crim. Proc. 41(g) governs motions for the return of property where an individual is "aggrieved by an unlawful search and seizure or by the deprivation of property."³ A Rule 41(g) motion for return of property is typically granted if the related prosecution has ended, but should be denied if the government establishes a "continuing interest" in the property. See United States v. Duncan, 918 F.2d 647, 654 (6th Cir. 1990).

III. Arguments

A. Petitioners Have Standing To Sue.

Initially, the Government contends that Petitioners lack standing to pursue their claims because they have no possessory interest in government property. That argument is unavailing. Rule 41(g) petitioners have standing if they are able to show a "sufficient interest" in the seized items. Matthews v. United States, 917 F. Supp. 1090, 1104 (E.D. Va. 1996). This is a "comparatively low" threshold, merely requiring the movants to allege ownership and to provide some evidence of ownership. Id.; see also United States v. $191,910 in U.S. Currency, 16 F.3d 1051, 1057 (9th Cir. 1994) (stating that although a party need not have an "ownership" interest in seized property to have standing, mere unexplained possession of property is insufficient).

Here, Petitioners have alleged ownership and have provided evidence of ownership of the disputed items. The disputed items are not, as the Government suggests, entirely government property. Although some government property may be contained within the disks, HDDs, and documents, many of the disputed items also contain Petitioners' professional and personalinformation. Petitioners' obvious ownership interest in their personal information is not eviscerated by the simultaneous presence of government information on the disputed items. Because Petitioners have established a sufficient ownership interest in information contained in the disputed items, and because they no longer have possession of those items, the Petitioners have established a sufficient deprivation of property to trigger Rule 41(g). As such, the complex issues presented should not be rejected via a threshold standing analysis.

B. The Government's Assertions of Classification and Statutory Protection Are Not Subject to Judicial Review.

The next issue is whether any classified, NSAA, or OGA information exists on the disputed items. The Government has asserted that each disputed item contains classified information, NSAA information that is protected under the National Security Agency Act of 1959, 50 U.S.C. § 402; 18 U.S.C. § 798; and Section 102A(i)(1) of the Intelligence Reform and Terrorism Prevention Act of 2004, 30 § U.S.C. 403-1(i)(1), or OGA information. Decl. of Steven T. ¶¶ 8-10. Petitioners suggest that the Government's determinations are subject to judicial review. The Government contends that it alone determines whether information is classified, NSAA protected, or OGA. A review of governing law establishes that the Government's position is correct as to classified information and NSAA information....