SHARYL THOMPSON ATTKISSON; JAMES HOWARD ATTKISSON; SARAH JUDITH STARR ATTKISSON, Plaintiffs - Appellants,
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
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)
Schiff Berman, Chevy Chase, Maryland, for Appellants.
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
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.
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.
MOTZ, KING, and WYNN, Circuit Judges.
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.
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).
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).
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. 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.
"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.
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.
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.
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.
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. ¶
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.
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.
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
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.
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. ¶
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).
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
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
• 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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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
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.
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.
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
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.
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