Attkisson v. Holder (P)

After three-and-a-half years of protracted preliminary litigation — including multiple amendments to the complaint — the district court properly dismissed the plaintiffs’ claims for alleged illegal intrusions into the plaintiffs’ electronic devices to conduct unlawful surveillance.

The complaint alleges that in early 2011, the plaintiff 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 plaintiff’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 government entities to stymie her reporting. Later in 2011, the plaintiffs noticed “anomalies” in several electronic devices at their home in Leesburg, Virginia, including computers, telephones, televisions, and the house alarm. The problems with those devices continued through 2012, despite their internet service provider’s attempts to cure them.

The district court did not err in dismissing the plaintiffs’ Fourth Amendment Bivens claim against the Attorney General and Postmaster for failure to state a claim. These defendants held much higher ranks than the line-level FBI agents sued in Bivens. Moreover, a claim based on unlawful electronic surveillance presents wildly different facts and a vastly different statutory framework from a warrantless search and arrest. And the plaintiffs seek to hold high-level officials accountable for what they themselves frame as policy-level decisions to target internal leaks to the media. Congress’s omission of a damages remedy for Fourth Amendment violations in similar factual circumstances is more than inadvertent and strongly counsels this court’s hesitation before creating such a remedy itself.

The district court also didn’t err in dismissing their Electronic Communications Privacy Act claim because the Attorney General and Postmaster are entitled to qualified immunity. To the extent that they procured any wrongful interception, use, or disclosure of the plaintiffs’ electronic communications, they did not violate a clearly established right.

Finally, the district court properly dismissed John Doe agents and Verizon defendants on procedural grounds and denied leave to further amend the complaint. Put simply, the court was dissatisfied with the plaintiffs’ lack of progress in pursuing their claims after more than three years of litigation, and their lack of respect for court orders. Moreover, the Amended Complaint contravened the court’s prior orders and the Federal Rules of Civil Procedure in multiple ways. Those circumstances support the dismissal with prejudice of their claims under Rule 41(b).

Affirmed. Judge Wynn wrote an opinion concurring in part and dissenting in part.

Attkisson v. Holder (P), No. 18-1677, Mar. 21, 2019. 4th Cir. (King) from EDVA at Alexandria (Brinkema).

Categories: 4th U.S. Circuit Court of Appeals, Opinions, Published

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