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Attkisson v. Holder

United States Court of Appeals, Fourth Circuit

March 21, 2019

SHARYL THOMPSON ATTKISSON; JAMES HOWARD ATTKISSON; SARAH JUDITH STARR ATTKISSON, Plaintiffs - Appellants,
v.
ERIC HIMPTON HOLDER, JR., Individually; PATRICK R. DONAHOE, Individually; UNKNOWN NAMED AGENTS OF THE DEPARTMENT OF JUSTICE, In their individual capacities; UNKNOWN NAMED AGENTS OF THE UNITED STATES POSTAL SERVICE, In their individual capacities; UNKNOWN NAMED AGENTS OF THE UNITED STATES, In their individual capacities; VERIZON VIRGINIA LLC; FEDERAL BUREAU OF INVESTIGATION; MCI COMMUNICATIONS SERVICES, INC., d/b/a Verizon Business Services; CELLCO PARTNERSHIP, d/b/a Verizon Wireless, Defendants - Appellees.

          Argued: January 29, 2019

          Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:17-cv-00364-LMB-JFA)

         ARGUED:

          Paul Schiff Berman, Chevy Chase, Maryland, for Appellants.

          H. Thomas Byron, III, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Reid Mason Figel, KELLOGG, HANSEN, TODD, FIGEL & FREDERICK, P.L.L.C., Washington, D.C., for Appellees.

         ON BRIEF:

          Clyde T. Turner, TURNER & ASSOCIATES, Little Rock, Arkansas, for Appellants. Joseph H. Hunt, Assistant Attorney General, Catherine H. Dorsey, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; G. Zachary Terwilliger, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Federal Appellees.

          David L. Schwarz, Kylie Chiseul Kim, Albert Y. Pak, KELLOGG, HANSEN, TODD, FIGEL & FREDERICK, P.L.L.C., Washington, D.C., for Appellees MCI Communications Services Incorporated, Cellco Partnership, and Verizon, Virginia, LLC.

          Before MOTZ, KING, and WYNN, Circuit Judges.

          KING, CIRCUIT JUDGE

         Plaintiffs Sharyl Thompson Attkisson, James Howard Attkisson, and Sarah Judith Starr Attkisson appeal from the dismissal with prejudice of their claims in the Eastern District of Virginia. The plaintiffs sued a number of named and unnamed government officials for alleged illegal intrusions into the plaintiffs' electronic devices to conduct unlawful surveillance, and also sued certain corporate entities for allegedly facilitating those intrusions. After three-and-a-half years of protracted preliminary litigation - including multiple amendments to the complaint - the district court dismissed the plaintiffs' claims. As explained below, we are satisfied to affirm the judgment.

         I.

         A.

         The district court dismissed the majority of the plaintiffs' claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. That ruling addressed the claims raised in the plaintiffs' consolidated complaint. See Attkisson v. Holder, No. 1:17-cv-00364 (E.D. Va. Sept. 15, 2017), ECF No. 117 (the "Consolidated Complaint"). In reviewing that dismissal we accept and recite the facts alleged in the Consolidated Complaint in the light most favorable to the plaintiffs. See Lucero v. Early, 873 F.3d 466, 469 (4th Cir. 2017).

         The district court then disposed of the balance of the plaintiffs' claims as presented in their amended consolidated complaint. See Attkisson v. Holder, No. 1:17-cv-00364 (E.D. Va. Feb. 5, 2018), ECF No. 174 (the "Amended Complaint"). The court based that ruling partly on Rule 12(b)(6), and otherwise on various procedural defects relating to the Amended Complaint. To properly review that final decision, we recite the pertinent facts alleged in the Amended Complaint as well as the procedural history of this litigation. See, e.g., Ballard v. Carlson, 882 F.2d 93, 94 (4th Cir. 1989) (providing "full statement of the facts," including procedural history, to review dismissal for procedural defects).

         1.

         a.

         At all relevant times, plaintiff Sharyl Thompson Attkisson ("Attkisson") was an investigative reporter for CBS News. Plaintiffs James Howard Attkisson and Sarah Judith Starr Attkisson are Attkisson's husband and daughter, respectively. In early 2011, as alleged in the Consolidated Complaint, Attkisson worked on the CBS News investigation into "Operation Fast and Furious," an ill-fated sting operation of the Bureau of Alcohol, Tobacco, and Firearms (the "ATF"). Intended as a means to sweep up gun traffickers and drug cartel members at the southern border, Operation Fast and Furious involved the circulation of thousands of firearms by the ATF that were to be traced and recaptured along with their purchasers. The ATF, however, lost track of a large number of those weapons, one of which was used to kill a Border Patrol Agent in 2010. Attkisson's highly critical report of the Operation aired on CBS on February 22, 2011. Over the course of that year, Attkisson continued reporting on Operation Fast and Furious, in the face of efforts by the ATF, the Federal Bureau of Investigation (the "FBI"), and the Department of Justice (the "DOJ") to stymie her reporting.[1] The story surrounding the Operation grew to include alleged problems with then-Attorney General Eric Holder's testimony (apparently before Congress), as well as the DOJ's retraction of a letter to Congress that contained misinformation about the Operation.

         In "mid-to-late 2011," the plaintiffs noticed "anomalies" in several electronic devices at their home in Leesburg, Virginia. See Consolidated Complaint ¶ 23. Specifically, a laptop and desktop computer began "turning on and off at night," the house alarm went off without provocation, and the plaintiffs experienced phone and television interference. Id. The plaintiffs' devices relied on a Verizon FiOS line that provided phone, internet, and television services to their home. The problems with those devices continued through 2012, despite Verizon's attempts to cure them.

         Meanwhile, Attkisson continued her work for CBS. In October 2012, Attkisson reported on the September 2012 attacks on our Embassy in Benghazi, Libya. Her reporting on those attacks criticized the actions of the Obama administration, drawing on confidential sources in the federal government.

         In December 2012, the plaintiffs asked an acquaintance "with U.S. government intelligence experience" to examine their home. See Consolidated Complaint ¶ 43. That acquaintance found an extra fiber optics cable dangling from the plaintiffs' Verizon FiOS box. When Attkisson called Verizon to ask about the cable, a Verizon representative denied any knowledge of it and suggested that Attkisson contact law enforcement. Soon thereafter, an individual identifying herself as a Verizon employee called Attkisson and said she would send a technician to the plaintiffs' home. The next day - January 1, 2013 - a person "represented to be a Verizon technician" removed the cable. Id. ¶ 44. Attkisson later attempted to contact that technician but was unsuccessful. Through January and February 2013, the plaintiffs continued to experience phone and internet problems that Verizon could not solve.

         On January 8, 2013, Attkisson gave her Toshiba laptop (used for her work for CBS) to an expert to conduct a forensic analysis of the machine. That expert found evidence of an unauthorized intrusion, possibly using software belonging to a government actor. Attkisson reported the expert's findings to CBS, which retained another expert to examine Attkisson's work laptop and home desktop computers. Based on the forensic analysis conducted by the CBS-retained expert, the plaintiffs allege that their desktop, smart phone, and Attkisson's work laptop were the "targets of unauthorized surveillance efforts," beginning around June 2011. See Consolidated Complaint ¶¶ 27, 48-49. That analysis also showed that someone had installed "surveillance spyware" on Attkisson's work laptop around February 2012 and "executed remote actions" to remove evidence of the surveillance around December 2012. Id. ¶¶ 27, 42.

         In March 2013, the plaintiffs' desktop began malfunctioning and finally shut down for good. In September 2013, Attkisson "observed" that her personal laptop, a MacBook Air, was "accessed remotely, controlled, and [unspecified] data deleted." See Consolidated Complaint ¶ 57. The plaintiffs did not obtain any expert analysis of the MacBook, but they allege that some of the intrusions described heretofore were executed "via an IP address owned, controlled, and operated by" the United States Postal Service (the "USPS"). Id. ¶ 27.

         In mid-2013, Attkisson and CBS announced publicly that her personal devices had been accessed and compromised. Attkisson also filed a complaint with the Inspector General for the DOJ. In response, the FBI and DOJ privately and publicly affirmed that they had no knowledge of any intrusions into the plaintiffs' devices. The DOJ Inspector General asked to examine the affected computers. CBS declined to release Attkisson's work laptop, but Attkisson provided her home desktop to the Inspector General. In early 2015, the Inspector General released a report that "noted a great deal of advanced mode computer activity not attributable" to the plaintiffs, but concluded that there was "no evidence of intrusion" into the desktop. See Consolidated Complaint ¶ 60.

         b.

         The Consolidated Complaint, filed in September 2017, named as defendants Eric Holder, the Attorney General at all relevant times; Patrick R. Donahoe, the Postmaster General during the relevant period; and "unknown named agents" of the DOJ, the USPS, and "the United States." See Consolidated Complaint 1. In addition to describing the events recited above, the Consolidated Complaint offers a variety of allegations to link those events to the defendants listed therein.

         Regarding the defendant "unknown named agents," or "John Doe agents," the Consolidated Complaint provides almost no direct allegations concerning those agents' actions. Instead, it asserts that unnamed agents "are in some manner responsible and liable for" the acts alleged by the plaintiffs, that is, the intrusions into their personal electronic devices. See Consolidated Complaint ¶ 11.

         The Consolidated Complaint also points to a number of policy-level initiatives undertaken by the FBI and DOJ concerning electronic surveillance, presumably to support the claim that employees of those agencies carried out the alleged intrusions. For example, in 2012, the FBI and DOJ jointly announced a "new effort" to address "national security-related cyber issues," while simultaneously seizing "personal and phone records belonging to journalists from the Associated Press." See Consolidated Complaint ¶ 30. The Consolidated Complaint does not allege, however, that those seizures were unlawful, and later references the DOJ's use of search warrants to investigate internal leaks to the media. Id. ¶¶ 30, 72(Z), 72(AA). Later in 2012, the DOJ provided training for the National Security Cyber Specialists Network, as well as the computer crime unit in the DOJ's Criminal Division. Regarding the role of the USPS, the plaintiffs allege that the USPS has a "working relationship with the FBI, Department of Homeland Security, and DOJ for domestic surveillance projects." Id. ¶ 63.

         The Consolidated Complaint also references emails released by Wikileaks (no longer available online), in which members of a "global intelligence company doing business with government agencies" discussed a perceived White House "witch hunt[] of investigative journalists." See Consolidated Complaint ¶ 33. Finally, that Complaint alleges that in November 2012, the FBI "initiated a body of cyber security case investigations that would later relate to the illegal intrusions" into the plaintiffs' devices. Id. ¶ 39. It is unclear what those investigations entailed, what relationship they had to the plaintiffs or the intrusions into their devices, and who or what was the focus of the FBI's inquiry. The Consolidated Complaint also alleges that the "FBI investigation involving Ms. Attkisson's computer intrusions was circulated to the DOJ's national cyber security group" in late 2012. Id. ¶ 59.

         With respect to Attorney General Holder's personal involvement, the Consolidated Complaint identifies a number of public statements that purportedly show that Holder knew of (unrelated) illegal surveillance conducted by the National Security Agency (the "NSA"). It references a DOJ report regarding revisions to DOJ policies, including changes that restricted the circumstances in which the DOJ would seek to seize a journalist's work product. The Consolidated Complaint asserts that Holder was personally involved in what it characterizes as illegal surveillance of a reporter named James Rosen in 2010, though it also alleges that Holder signed off on search warrants concerning individuals in the media at that time. Lastly, the Consolidated Complaint alleges that Holder discussed Attkisson's reporting on Operation Fast and Furious; that he directed an aide to call a CBS News anchor and tell him to "get a 'handle' on [Attkisson's] reporting"; and that Holder used "DOJ assets" to work with "smear machines like Media Matters to attack reporters," including Attkisson. See Consolidated Complaint ¶ 72(Q)-(T), (W).[2]

         With regard to Postmaster Donahoe's involvement in the foregoing events, the Consolidated Complaint alleges that he was ultimately responsible for any use of the USPS network, including the use of its IP addresses. That Complaint also generally alleges that USPS has cooperated with the DOJ and FBI in their investigations, including by unconstitutionally monitoring mail.

         2.

         The Amended Complaint, filed in February 2018, added as defendants, inter alia, MCI Communications Services, Inc., d/b/a Verizon Business Services; Cellco Partnership d/b/a Verizon Wireless; and Verizon Virginia LLC (collectively, the "Verizon defendants," or "Verizon"). The central factual allegations in the Amended Complaint mirror those provided in the Consolidated Complaint. With respect to the Verizon defendants and their involvement in the intrusions into the plaintiffs' personal devices, the Amended Complaint offers the following allegations:

• That Verizon provided the plaintiffs' phone, internet, and television services through the Verizon FiOS cable installed in their home;
• That Verizon made various attempts to resolve the anomalies with the plaintiffs' electronic devices and failed, as discussed above;
• That someone purporting to be a Verizon technician removed an extra FiOS cable from the plaintiffs' home, as discussed above;
• That the FBI's Telephone Telecommunications Intercept and Collection Technology Unit has the capacity to interface with Verizon's network infrastructure; and
• That government agents used Verizon's network to unlawfully access Attkisson's work laptop.

See Amended Complaint ¶¶ 31, 33, 38-39, 54-57, 81-82, 84.

         B.

         1.

         These proceedings began in December 2014, when the plaintiffs sued Attorney General Holder, Postmaster Donahoe, and the John Doe agents in the Superior Court of the District of Columbia. The plaintiffs' Superior Court complaint included First and Fourth Amendment claims based on the electronic intrusions described above. In February 2015, Holder and Donahoe removed the lawsuit to the district court for the District of Columbia.

         On February 23, 2015, the plaintiffs sought expedited discovery in the District of Columbia, requesting "limited, immediate discovery" to "determine the true identifies [sic] of the Doe Defendants." See Attkisson v. Holder, No. 1:15-cv-00238 at 1 (D.D.C. Feb. 23, 2015), ECF No. 5. Because the plaintiffs failed to provide a more detailed explanation of such discovery, the district court denied their motion without prejudice.

         The plaintiffs renewed their expedited discovery motion on March 20, 2015. The renewed motion contained twenty-one interrogatories to be served on Holder, Donahoe, the USPS, and DOJ. The interrogatories contained broad requests, including for "[t]he identity of any person who has knowledge of existence and use of technology capable of remotely using a 'kickstart' program between 2011-2013" to remove surveillance software from a personal computer. See Attkisson v. Holder, No. 1:15-cv-00238 at 4 (D.D.C. Mar. 20, 2015), ECF No. 21-1. The defendants opposed the plaintiffs' renewed discovery motion on April 6, 2015, and at the same time moved to dismiss the complaint. In response, the plaintiffs amended their complaint. The district court thus denied the motion to dismiss as moot.

         On July 3, 2015, the district court denied the plaintiffs' renewed motion to expedite discovery. First, the court observed that the plaintiffs had failed to comply with that court's Local Rule requiring the parties to meet and confer before seeking court intervention. The court also determined that the plaintiffs failed to meet the "good cause" standard for expedited discovery, primarily because their requests were "not narrowly tailored to discovering the identity of Doe defendants." See Attkisson v. Holder, No. 1:15-cv-00238 at 11 (D.D.C. July 3, 2015), ECF No. 34.

         Soon thereafter, the defendants renewed their motion to dismiss the then-operative complaint in the District of Columbia. In response, the plaintiffs voluntarily dismissed their claims against Holder and Donahoe without prejudice in August 2015. Because Holder and Donahoe had been the only named defendants in that complaint, the district court requested a "recommendation for future proceedings." See Attkisson v. Holder, No. 1:15-cv-00238 (D.D.C. Aug. 27, 2015). The plaintiffs responded by asserting that they intended to file a separate claim "against the named defendants and others" under the Federal Tort Claims Act (the "FTCA"). See Attkisson v. Holder, No. 1:15-cv-00238 at 1 (D.D.C. Aug. 27, 2015), ECF No. 39. They also represented to the court that they were "in the process of serving" subpoenas on the USPS in an effort to identify the John Doe agents. Id. at 2. The plaintiffs thus requested "that no action be taken in this case" pending that discovery and the filing of their FTCA suit. Id. No further action occurred in the original District of Columbia lawsuit until October 2015, when the plaintiffs moved to compel the USPS to comply with their discovery efforts.

         Over the next several months, the plaintiffs and the Government litigated the plaintiffs' motion to compel, which was fully briefed by March 2016. No party took any action thereafter until July 28, 2016, when the district court consolidated the plaintiff's initial lawsuit with the FTCA complaint, pursuant to Federal Rule of Civil Procedure 42(a). The FTCA case - which the plaintiffs had filed in September 2015 - arose from the same facts as the initial lawsuit, and identified as defendants Holder, Donahoe, the John Doe agents, and the United States. In light of the change in named parties that was occasioned by consolidation, the court denied the plaintiffs' pending motion to compel as moot. On March 29, 2017, the consolidated lawsuit was transferred from the District of Columbia to the Eastern District of Virginia because the FTCA claims lacked venue in the District of Columbia. We thus turn to a review of the post-transfer events in the Eastern District of Virginia.

         2.

         a.

         After their consolidated lawsuit was transferred to the Eastern District of Virginia in March 2017, the plaintiffs' lawyers failed to notice their appearances there until April 21, 2017 - nearly a month later. The plaintiffs then took no action at all for three more months.

         On July 18, 2017, the case was reassigned from Judge Cacheris to Judge Brinkema, and the court ordered that any motion to dismiss the plaintiffs' claims be filed by early August 2017. The plaintiffs filed their first motion in the Eastern District of Virginia on July 26, 2017, moving for reconsideration of their most recent motion to compel discovery, which the District of Columbia court had denied as moot upon consolidating the two lawsuits. The plaintiffs' motion sought USPS records and a taped deposition of a USPS representative, to cover topics including, inter alia, "[a]ny and all records, logs, or other form of identification material that will or may assist in identifying" any persons with access to the IP address identified by the plaintiffs' forensic analysis. See Attkisson v. Holder, No. 1:17-cv-00364 at 5 (E.D. Va. July 26, 2017), ECF No. 91-1. On July 28, 2017, the plaintiffs amended their discovery request to cover information relating to a second IP address.

         On August 9, 2017, the defendants moved to dismiss the plaintiffs' claims for failure to state a claim. Defendants Holder and Donahoe also invoked a qualified immunity defense. On August 14, 2017, the defendants filed a joint opposition to the plaintiffs' motion for reconsideration, emphasizing the breadth of the plaintiffs' discovery requests, the high bar for granting motions for reconsideration, and reasserting the individual defendants' right to immunity.

         On September 1, 2017, the magistrate judge heard argument on the plaintiffs' motion to reconsider. After the hearing, the magistrate judge denied the reconsideration motion without prejudice "as to the subject matter of the discovery sought by plaintiffs," for reasons "stated from the bench." Attkisson v. Holder, No. 1:17-cv-00364 (E.D. Va. Sept. 1, 2017), ECF No. 107.

         On September 5, 2017, the district court entered a scheduling order, which established a discovery deadline of January 12, 2018. That same day, the plaintiffs responded to the motion to dismiss. A week later, in light of confusion among the parties concerning what constituted the operative complaint after the transfer to the Eastern District of Virginia, the court ordered the plaintiffs to file the Consolidated Complaint. It was filed on September 15, 2017.

         b.

         The Consolidated Complaint named as defendants Holder, Donahoe, and the John Doe agents. Notably, it did not name the United States as a defendant. It alleged the following claims: a First Amendment claim pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971) (Count 1); a Fourth Amendment Bivens claim (Count 2); violations of the Electronic Communications Privacy Act (the "ECPA") (Count 3), the Stored Communications Act (the "SCA") (Count 4), the Computer Fraud and Abuse Act (the "CFAA") (Count 5), the Foreign Intelligence Surveillance Act ("FISA") (Count 6), and the Virginia Computer Crimes Act (Count 7); plus common law trespass (Count 8).

         The pending motion to dismiss the Consolidated Complaint was fully briefed by September 18, 2017, and the district court conducted a hearing on the dismissal motion on September 22, 2017. During the hearing, the lawyers thoroughly argued the motion to dismiss. The court also inquired about discovery issues:

THE COURT: [T]here still are these John Does out there, and you still, I believe, have matters pending, or do you not, before [the magistrate judge] in terms of discovery requests?
PLAINTIFFS' COUNSEL: I don't believe we do. I think he denied with permission for us to re-raise any issues if there was a problem.

See Attkisson v. Holder, No. 1:17-cv-00364 at 20-21 (E.D. Va. Oct. 16, 2017), ECF No. 127 (transcript of September 22 hearing). The court "strongly suggest[ed]" that the plaintiffs' lawyers "start pursuing your discovery about that [USPS] IP address." Id. at 21. The court then entered an order dismissing Counts 7 and 8 of the Consolidated Complaint with prejudice, but held the remainder of the dismissal motion in abeyance. Notably, the order observed that, although the United States had previously been named as a defendant, "it was not named as a defendant in the Consolidated Complaint." See Attkisson v. Holder, No. 1:17-cv-00364 at 1 (E.D. Va. Sept. 22, 2017), ECF No. 122. The plaintiffs did not seek reconsideration of that order.

         c.

         Meanwhile, the parties filed a joint discovery plan (for which they had jointly obtained a brief extension), which the magistrate judge approved on September 25, 2017. That plan retained the final discovery deadline of January 12, 2018. On September 27, 2017, the plaintiffs noticed their first deposition in the Eastern District of Virginia - six months after the litigation was transferred there. That notice again sought to depose a USPS representative and requested various records from that agency. The topics specified in the notice were similar to those identified in the plaintiffs' previous discovery motion, litigated in August 2017. It retained a request for "any and all records, logs, or other form of identification material" that "will or may assist in identifying" any person who had access to the listed IP addresses. See Attkisson v. Holder, No. 1:17-cv-00364 at 3 (E.D. Va. Sept. 27, 2017), ECF No. 125. According to the briefs, the plaintiffs deposed a USPS representative in mid-October 2017.

         On October 27, 2017, Holder and Donahoe - the two remaining named defendants - moved to stay discovery until the district court resolved the balance of their motion to dismiss the Consolidated Complaint. Holder and Donahoe emphasized that, if they prevailed on qualified immunity, they were entitled to immunity from suit, including discovery. They also represented to the court that the plaintiffs had recently served wide-ranging document subpoenas on nine federal agencies and departments, including the FBI, the ATF, the Central Intelligence Agency (the "CIA"), and the NSA. The defendants submitted as support the plaintiffs' subpoena to the NSA, which included, inter alia, a request for all records relating to "Sharyl Attkisson's and/or CBS reporting on Benghazi" between 2004 and 2017. See Attkisson v. Holder, No. 1:17-cv-00364 at 12 (E.D. Va. Oct. 27, 2017), ECF No. 130-1. As an alternative to their motion to stay discovery, the defendants sought a protective order.

         d.

         Shortly thereafter, on November 1, 2017, the district court dismissed with prejudice Counts 1 through 6 of the Consolidated Complaint as to Holder and Donahoe. See Attkisson v. Holder, 1:17-cv-00364 (E.D. Va. Nov. 1, 2017), ECF No. 133 (the "First Dismissal"). The court also dismissed with prejudice Count 4 of the Consolidated Complaint as to all parties. With the filing of the First Dismissal, the only pending aspects of the litigation were Counts 1, 2, 3, 5, and 6, as to the John Doe agents. In the circumstances, the First Dismissal also denied as moot Holder and Donahoe's motion to stay discovery.

         On the very day the district court filed the First Dismissal, the plaintiffs moved to again name the United States as a defendant, asserting that they had inadvertently omitted to name the United States in the Consolidated Complaint. The court denied that motion two weeks later, on November 16, 2017, ruling that the plaintiffs had failed to show good cause and that "[a]llowing plaintiffs to add a defendant back into the litigation at this stage would lead to a regression of the litigation and impair judicial economy." See Attkisson v. Holder, No. 1:17-cv-00364, at 4 (E.D. Va. Nov. 16, 2017), ECF No. 140. The court emphasized that the plaintiffs had not sought relief when the court's September 22, 2017 order ...


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