Montgomery v. Comey

• Court: District Court, District of Columbia
• Decided: March 5, 2018
• Docket: Civil Action No. 2017-1074
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FILED MAR-szms

DENNIS MONTGOMERY, et al., ) ) C|erk. U.S. District & Bankruptcy Plaintiffs’ ) Courts for the District of Co|umb|a ) v. ) Civil Action N0. 17-1074 (RJL) ) JAMES COMEY, et al., ) ) Defendants. ) MEM§{:\NDUM OPINION

March i, 2018 [Dkrs. ##7, 26, 27, 36]

Plaintiffs, Dennis Montgomery (“Montgomery”) and Larry Klayman (“Klayman”) filed the instant action against three federal agencies_the Federal Bureau of Investigations (“FBI”), the Central Intelligence Agency (“CIA”), and the National Security Agency (“NSA”)_as Well as seven current and former government officials_former President Barack Obama (“Obama”), Director of National Intelligence (“DNI”) Daniel Coats (“Coats”), former DNI James Clapper (“Clapper”), CIA Director Mil

they, too, Wcre targeted by this surveillance based on the fact that their personal and

business computers and cell phones Were allegedly "hacked” by computers used by the Cl/\, the l`*`Bl, and the I)epartment ofl')efense (“DOD”). ]c/. at 1|1| 43-48, 56--62. According to plaintiffs thc l*`Bl, under Comey’s direction, sought to “cover-up” its Wrongdoing by inducing l\/lontgomery to turn over 47 computer hard drives containing evidence of the illegal surveillance [a'. at jill 28~~37. They also claim that the FBl has refused to investigate plaintil`l`s" claims or return the incriminating hard drives. [a’.

Based on this allegedly unlawful conduct by del`endants, Klayman and l\/lontgomery assert constitutional claims for violations of their First and Fourth Alnendlnent rights, as Well as common law tort claims for conversion and fraudulent misrepresentation ]d. at 1]1[ 67---8(), 96--1()1, 109--20. They also seek injunctive relief and appointment of a special master to "`conduct a real and through[sic] investigation of the information contained on the hard drives” and of “Del"endants’ attempts to and/or actual hacks of Plaintiff Klayman’s Verizon Wireless cellular phone and Plaintit`fl\/lontgomery’s computcr.M /c/. at jill 8`1~95, l()Z¢()S.

These cases are before the Court on the Government Defendants’ l\/lotion to Dismiss and for Partial Summary Judgment, the lndividual-Capacity Defendants’ Motion to Dismiss, and Plaintiffs’ Motion for a Preliminary lnjunction. Upon consideration of the parties’ submissions, and the entire record herein, defendants’ motions are GRANTED, plaintiffs’ motion is DENIED, and plaintiffs’ complaint is DISMISSED With prejudice.

BACKGROUND This case~according to plaintiffs~is a “continuation” of three other lawsuits

previously filed in this Court, in Which Klayman has alleged that the federal government

and its agents have engaged in a “pattcrn and practice of illegally and unconstitutionally spying on millions of Americans.” Pls.’ Opp’n to Gov’t Defs.’ Mot. Dismiss & l\/lot. for Partial Summ. .l. & Resp. to Opp’n to Mot for TRO [Dkt. #33] (“Pls’ Opp’n”) l; Compl. ll 6. "l"wo o’f`those lawsuits_which have come to be known as “](lqy)')iczn ]” and “Klaymcm //“’ ------- have already been dismissed with prejudiec, see Klayman v. Nal'[O/ml Secur/`ly Agency, Civ. A. l\los. l3-851(RJL), l3-88](RJL). 20l7 WL 5635668 (l\lov. 21,2()17), and l have issued an order to show cause why the third should not be dismissed for the same rcasons. See K/(zynmn v. ()l)cz/ncz, l4-cv-()0092-R.ll,, (1)rdci'|:l)l

Thc general theme of this action is similar to the previous three, and is a veritable anthology of conspiracy theorists’ complaints. According to plaintiffs, “each and every” defendant has engaged in “ongoing illegal, unconstitutional surveillance of millions of Americans, including prominent Americans such as the [C]hief [J]ustice of the U.S. Supreme Court, other _justices, l56 judges, prominent businessmen and others such as Donald .l. Trump, as well as Plaintiffs themselves.” la’. at ll 18. l)lztiittil"l"s claim that defendants have conductediand continue to conduct--~this surveillance "in numerous ways, including but not limited to, bulk telephony mctadata collection similar to the now `discontinued’ Section 215 of the US/\ l’/\'l`RI()'l" /\C'l" as well as targeted ‘PRlSl\/l’ collection under Section 7()2 of the l`i`oreign |:lntelligence Surveillance:| Act.” ]d. at ll 20. Plainti'f`fs further claim that "ez\cli and every” defendant in this case has covered up the

ongoing surveillance “by coordinating ‘leaks’ of sensitive information pertaining to those who may dare to oppose them or reveal their illegal, unconstitutional activities." [c!. at ‘l 28.

l)laintiffl\/lontgomery is a former NS/\, Cl/\, and l)l\ll contractor who has allegedly engaged in whistleblowing regarding defendants’ unconstitutional surveillance ld. at ll 33. llc claims that on /\ugust 19, 2()15, he was induced by the FB.[, under the direction of (`,omcyt to turn over 47 hard drivcs, valued in excess of$$(),()()(). which allegedly contained evidence ofdcfendants’ unconstitutional mass surveillance la’. at llll 37¢38. Specifically, this evidence consisted of()`()(),()()(),()()() pages of data on over 2() million Americans, much of which was collected on behalf of the U.S. Govcrnment on computers supplied by the l"`BI. See /\mendcd Aff. of Dennis l\/lontgomcry in Supp. ofPls.’ l\/lot. TR() & Prelim. lnj. ("l\/lontgomery A'f`f.”) |:lf)l

l\/lontgomery also claims that. on or around l.`)ecember 21 , 2()15, he was interviewed under oath at the l"l%l field office in Washington_ l).C. [cz’, at ll 4(). I`)uring that three-hour interview` which was recorded on videotape, l\/lontgomery set forth the NS/\, Cl/\` and

l)l\ll’s pattern and practice of unconstitutional mass surveillance /

l\/lontgomery also alleges that, on an unspecified date the l"Bl "‘raid[ed his:| housc, |tied him| to a trec, threaten[cdl him and his family, and search|:ed_l and seiz[ed his] property without a valid warrant or probable cause.” [a’. at ll 34. l\/Iontgomery claims that he suffers from a brain aneurysm of which the FBI was aware at the time of the raid, and he believes that the FBI conducted this search and seizure of his home and property in order “to cause him severe emotional distress and potentially cause a fatal brain aneurysm.” Ic/. at llll 33, 35.

Since these events, l\/lontgomery claims he has been the victim of multiple hacking

attempts against his home and business computers, as well as his Apple aecount, by each

' 'l`hc FD-302 "is an internal form used by the FBI to document interviews conducted in law enforcement investigations." l)ecl, of l)avid l\/l. l~lardy ("l»~lardy Decl.”) |'l)kt. 27-5:] ll 22.

of the defendants in this case [cl. at llll 43, 47. Speeifiieally, he alleges that he has traced the ll) addresses of the hacl\'ing attempts to the l<`Bl’s Criminal .lustice lnformation Systems office in Clarksburg` Wcst Virginia; the l)(_)l)’s l\letwork lnformation Center in Columbus, ()hio_; the Cl/\ in Washington, l),C.; and the CI/\ in llangley, Virginia. ]d. at lll| 44~»47. l~le also claims that Comey, the l-"Bl, and other defendants have “continucd to harass” him, and have "fed misleading and false information about him to journalists . . . to smear |his_| name and destroy |his| reputation in order to render him an ineffective whistleblower."` ]d. at ll 3().

Plainti'ff Klayman is a self-described “prominent public interest attorney who was the founder of ludicial Watch, lnc. and now Freedom Watch lnc.” Compl. ll 53. Klayman has brought several lawsuits against the federal government, its agencies, and its officers for allegedly unconstitutionally spying on him and other /\mericans. Icz’. According to Klayman, he has been “publicly trying to raise awareness of. and demand an investigation into, 1_`)efendants’ ongoing illegal and unconstitutional surveillance of millions of /\mcricansi as well as to prosecute wrongdoersM Ic/. at ll 54. 'l`hese efforts have included meeting with the llousc lntclligcnce Committec, the Scnate lntelligence Committee, the llousc .ludiciary Committee, and the Senate .ludiciary Committee about the surveillance [cl. at ll 55. Klayman claims that he has been targeted by defendants because of these meetings and his other attempts to reveal clefendants’ unlawful surveillance

ln particular, Klayman alleges that, “allnt)st immediately after" he contacted the chairman of the l-louse lntelligence Committee regarding the l""l:~?»l`s cover-up of l\/lontgomery’s evidence, he "received a purported ‘sof`tware update" on his Samsung

(lalaxy" cell phone ]cf. at ll 56. /\'fter installing the update however, his phone "l)egzlli acting abnormally,” and "‘tlie battery |beganl draining at an exponential rate." Icl. at ll 57. Klayman allegedly took his phone to two different Vcri7,on Wireless storcs, and the technicians confirmed to him that the abnormalities were “not normal and highly suspect." ld. at ll 58. f-lc further claims that both Samsung and his wireless carrier confirmed that neither ofthem had initiated the “sof`twarc update."' [c)’. at ll 59. According to l\/lontgomcry, “battery drainage is a tell-talc sign that Defcndants have successfully hackcd into a cellular phone,"` so Klayman was forced to purchase a new cell phone to avoid being monitored by defendants [cl. at l|ll 60~-()1.

ln l\/Iay 2017, however, Klayman’s new phone began acting abnormally as wcll. ln addition to the battery drainage problcm, his phone began "er'zrsiiig and downloading files on its own and without |his| consent." /cl. at ll 62. Klayman claims that, according to Wikil_/eal\'s, defendants have developed malware that hacks into smart phones remotely in order to turn them "into recording and transmitting stations to spy on their targets.” Ia’. at llll 63164. Klayman believes that defendants are using this malware to hack into his phone because they are afraid that “l\/l<)iitgolner'y will reveal their ongoing conspiracy to the public and that [Klaymanl will continue to push for an investigation."' Id. at ll 66.

Based on these allegations, plaintiffs filed this lawsuit on .lune 5, 2017, alleging n eight claims for relief against the federal agencies and individual defendants See Compl. Plaintiffs have sued the individual defendants in both their official capacities and their individual capacitics, pursuant to Bz`vens v. Sz`x Unknown Namea’Age/its ofFed. Bureau 0f

chrcoll`cs, 403 U.S. 388 (l97l). See Compl. llll 7--16. In total, plaintiffs seek

compensatory damages in excess of $16,000,000, punitive damages in excess of $235,000,000, and equitable, declaratory, and injunctive relief. Ia’. at p. 32. Two weeks after filing their complaint, plaintiffs filed a Motion for Temporary Restraining Order and Preliminary lnjunction. See l\/lot. TRO & Prelim. lnj. [Dkt. #7] (“Pls.’ l\/lot.”).

l held a hearing in this case on June 23, 2017, during which l consolidated plaintiffs’ motion fo_r a temporary restraining order and preliminary injunction into a motion for a preliminary injunction See Status Hr’g Tr. 29:1~7, June 23, 2017. l also set a briefing schedule for defendants to submit any motions to dismiss, and l informed the parties that l would rule on the motion for a preliminary injunction and any motions to dismiss simultaneously See l\/lin. Order, June 27, 2017. The Government defendants subsequently moved to dismiss and for partial summary judgment, and the individual defendants moved to dismiss the claims against them in their individual capacities See Gov’t Defs.’ l\/[em. ofP. & A. in Supp. ofl\/[ots Dismiss & for Partial Summ. J. & in Opp’n to Pls.’ l\/lot. TRO & Prelim. lnj. [Dkt. #27-1] (“Gov’t Defs.’ Mem.”); l\/lem. in Supp. of lndividual-Capacity Defs.’ l\/[ot. Dismiss [Dkt. #36-1] (“lndividual Defs.’ l\/lem.”). "l`hose motions_as well as plaintiffs’ motion for a preliminary injunction_are now ripe

STANDARD OF REVIEW A. Motion to Dismiss

The Govcrnment defendants have moved to dismiss Count Vl of plaintiffs’ complaint, which requests the appointment of a special master, for failure to state a claim under Federal Rule of Civil Procedure l2(b)(6). To survive defendants’ motion, plaintiffs’

“[flactual allegations must be enough to raise a right to relief above the speculative level,

on the assumption that all the allegations in the complaint are true (even if doubtful in faet)." B€/ZAI[. Cr)rp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). /\lthough a trial court generally must consider a plaintiffs factual allegations as true, the court should first “identifly] pleadings that, because they are no more than conclusions, are not entitled to the assumption oftruth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Once this Court has satisfied itself that plaintiffs have asserted “well-pleaded factual allegations,” z`d., l must determine that the allegations are plausible That is, plaintiffs’ factual allegations must allow this Court “to draw the reasonable inference that the defendant[sl lare] liable for the misconduct alleged,” ifthe factual allegations are proven true. Malrl'xx Inz`fl`az‘z`ves, lnc. v. Sl`racusano, 563 U.S. 27, 46 (201 l).

Defendants have also moved to dismiss Counts 1-111, V, Vll, and Vlll of plaintiffs’ complaint for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure l2(b)(l). ln ruling on such a motion, 1 “may consider the complaint alone or may consider materials beyond the pleadings,” Bz'ckfom’ v. Gov’l' ofU.S., 808 F. Supp. 2d 175, 179 (D.D.C. 2011) (internal quotation marks omitted), and 1 must view “the factual allegations of the complaint in the light most favorable to the non-moving party.” Loughll`n v. United Sl'ates, 230 F. Supp. 2d 26, 35 (D.D.C. 2002). ln this case, that means thatl must view the complaint in the light most favorable to plaintiffs but this does not diminish plaintif`fs’ obligation “to state a claim of standing that is plausible on its face.” Arpaio v.

()bama, 797 F.3d 1 1, 19 (D.C. Cir. 2015) (internal quotation marks and alteration omitted),

cert cz’em'ed, 136 S. Ct. 900 (2016), reh’g denied, 136 S. Ct. 1250 (2016).

B. lVlotion for Summary Judgment

The Government defendants have moved for partial summary judgment on Count VI of plaintiffs’ complaint, which seeks to compel the FBI to comply with l\/lontgomery’s Privacy Act request. Under Rule 56(a) ofthe Federal Rules of Civil Procedure, this Court should render summary judgment in favor of defendants unless the pleadings, and any attachments to the pleadings, establish a “genuine dispute as to any material fact.” The moving party bears the initial burden of identifying evidence that demonstrates that there is no genuine issue of material fact. Celolex Corp. v. Calrell, 477 U.S. 317, 323 (1986). Once the movant_here, defendants_makes that showing, the burden shifts to plaintiff to “come forward with specific facts showing that there is a genuine issue for trial.” Maz‘sushl'ta Elec. lndus. CO. v. Zenl`th Raa'io Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted). Unless plaintiffs can demonstrate a genuine issue of material fact_which requires that they “cast more than metaphysical doubt” on the evidence_ defendants are entitled tojudgment as a matter oflaw. D0e v. Gates, 981 F.2d 1316, 1323 (D.C. Cir. 1993).

C. Motion for Preliminary lnjunction

Plaintiffs are seeking a preliminary injunction, and thus they must establish “[ 1] that [they arel likely to succeed on the merits, [2] that [they are] likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in [theirl favor, and [4] that an injunction is in the public interest.” Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (internal quotation marks omitted). rl`he third and fourth factors

“merge when the Government is the opposing party.” Colo. Wila’ Horse v. Jewell, 130 F.

Supp. 3d 205, 220¢21 (D.D.C. 2015) (internal quotation marks omitted). Because the relief plaintiffs seek is “an extraordinary remedy,” a preliminary injunction “should be granted only lif they carryl the burden of persuasion.” Chap/az`ncy ofFull Gospel C/mrches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006). DISCUSSION A. Count I: Fourth Amendment Violation

l\/[uch like their claims in Klayman 1 and Klayman II, plaintiffs allege that the individual-capacity defendants violated the Fourth Amendment by unreasonably searching and seizing their personal records, as well as the records of “millions of innocent U.S. citizens,” without reasonable suspicion or probable cause and without describing with particularity the place to be searched or the person or things to be seized. Compl. lll 694- 70. Spccifically. plaintiffs allege that thc NS/\ collected their electronic comrmlnications using three distinct methods: (_l) the I)RlSl\/l program,2 (2) a resurrected version of the

NSA bulk collection program,3 and (’3) hacking of their personal electronic devices with

2 "l`he PRlSl\/l program is an ongoing targeted collection program conducted pursuant to Scction 702 ofthe l*`oreign lntelligence Surveillance Act (“FISA"). See 50 U.S.C. § 1881a. Under the PRlSl\/l program, the Government uses selectorsilike e-mail addresses_to collect online communications of non-U.S. persons located abroad See K/ayman, 2017 er 5635668, at *3~-4, 13 (describing the PRlSl\/l program). lmportantly, Section 702 expressly prohibits the Government from intentionally targeting a U.S. person overseas or any person known to be in the United States See 50 U.S.C. § 1881a(b).

3 Beginning in May 2006, and pursuant to its authority under Section 215 of the USA PATRIOT Act, the Government conducted the bulk telephony metadata program that plaintiffs challenge today. See Pub. L. No. 107-56, 115 Stat. 272, 287 (2001) (codified at 50 U.S.C. § 1861(a)(1)). As part of this program, the Government obtained orders from the Foreign lntelligence Surveillance Court (“FISC"`) directing certain telecommunications service providers to produce, in bulk, ca11-detail records, which contained metadata about telephone calls, including the time and duration of a ca11 and the dialing and receiving

ll

Cl/\ malware /a’. l|ll 20, 63. Plaintiffs allege that they themselves have been targets of this surveillance based on the fact that they “have worked visibly, in the public eye, to raise awareness off and demand investigation into” defendants’ illegal surveillance laf. at lll| 30, 66. 'l`hc individual defendants counter that plaintiffs have failed to establish standing to pursue their l%`ourth Amendment claim, and thus Count 1 must be dismissed See lndividual l)ef`s.’ 1\/Icm. 4; Gov’t l)cfs.’ l\/lcm. 9. 1 find that defendants arc correct.

1"`irsti plaintiff"s` standing to challenge defendants’ alleged surveillance under the l)R_lSl\/l program is clearly foreclosed by the Suprcme Court’s decision in C/ap/)er v. A)nnes/y lnl'ernalic)na[ USA, 568 U.S. 398 (2013). 1n Clap[)e/”, the Suprcme Court held that, in order to establish Article 111 standing, plaintiffs challenging surveillance under the PRlSl\/l program must sufficiently allege that “potential future surveillance is certainly impending or is fairly traceable to lthe PRlSl\/l program:|." Ia'. at414. Plaintiffs challenging the PRISl\/l program must therefore set forth facts tending to show that: (1) they have communications with persons abroad; (2) their foreign contacts would be targeted by the PRISl\/l program; ('3) the (:}overnmcnt would seek l"`lSC authorization to surveil their

foreign contacts under the PRISl\/l program; (4) the Government would actually succeed in

numbers See Klayman, 2017 WL 5635668, at *2. Once the data was collected, the Government created a repository where that data could be accessed and queried by NSA analysts for the purpose of detecting and preventing terrorist attacks See z`a’. ln 2015, however, in response to many of the same Fourth Amendment concerns 1 articulated in my initial opinion in Klayman I, see Klayman v. Obama, 957 F. Supp. 2d 1, 38-44 (D.D.C. 2013), vacated anal remanded, 800 F.3d 559 (D.C. Cir. 2015) (per curiam), Congress passed the USA FREEDOM Act, Pub. L. No. 114-23, 129 Stat. 268, which amended Section 215 ofthe USA PATRIOT Act to prohibit bulk collection by the Government. See Klayman, 2017 WL 5635668, at *7. The bulk telephony metadata collection program under Section 215 is therefore now defunct.

obtaining communications from their foreign contacts; and (5) their communications with their foreign contacts would bc among those collected pursuant to the PRlSl\/l program. .S'ce /`r/. at 41 1 14 (requirin g the plaintiffs in C.`la}),z)e/' to allege “specif'ic facts demonstrating that the communications oftheir foreign contacts will be targeted”). l')lainti'ffs clearly have not carried their burden here

ln fact, plaintiffs have not even alleged---in their complaint, their l\/lotion for a Preliminary lnjunction. or their supporting affidavits#that they communicate with any persons abroad, let alone that they have reason to believe that their foreign contacts have been targeted under the PRlSl\/l program. l)laintiffs" allegations here arc therefore even less colorable than those l dismissed for lack ofstanding under C[a])/)er in Klayman l and [\’/ayma/»z //. See Klawnan, 2017 WL 563668, at fl3 (holding that Klayman failed to establiin standing to challenge the l)RlSl\/[ program, even where he alleged that he "frcquents and routinely telephones and e-mails individuals and high-ranking government officials in 1s1'acl" and communicates with persons in several other nations). Plaintiffs accordingly lack standing to challenge defendants’ alleged surveillance under the PRlSl\/l program.

Sccond, plaintiffs claim that thcy, and millions of other Americans, have been targeted for surveillance by the bulk telephony metadata collection program formerly conducted by the NSA pursuant to Scction 215 of the 11 S/\ l)/\"l"RlO'l` Act. See Klaylnan, 2017 Wll 563668, at *2 (discussing the history of the government’s now defunct bulk telephony metadata collection program). But as l held in Klayman 1 and Klayman ][, the llS/\ l"Rl£l/ll)(',`)l\/l /\ct expressly prohibits the bulk collection of telephony metadata under

Section 215, See US/\ l-"l`{l;`ll_il)(j_)l\/l /\ct §§ 103, 109, 129 Stat` at 272, 276_; 50 U.S.C. § l861(c)(3); see also Klay)nan, 2017 Wl_r 563 5688, at ”‘9 (explaining that bulk telephony metadata collection pursuant to Scction 215 is now prohibited by statute-»---under the USA l"Rlilll)Ol\/l /\ct-»--and by Ordcr of the lllSC). Because l must assume, absent evidence to the contrary, “that government officials will conduct themselves properly and in good faith,"` /n /‘e Navy (l/ici/)[clz'/icjt’, 850 F. Supp. 2d 86, 94 (D.D.C. 2012), l presume that defendants have acted in accordance with the limitations imposed by the USA FREED(f)l\/l /\ct.4 'l`hus, because the bulk telephony metadata collection program is no longer in existence and plaintiffs have offered no evidence to suggest that defendants have resurrected it in violation of l"*` lSC order and statutory command_plaintiffs" challenges to that program do not present a live Article 111 case or controversy. Clar/ce v. United States, 915 1*`.2d 699, 701 (D.C. Cir. 1990) (instructing that a court must dismiss a case as moot if “events have so transpired that the decision will neither presently affect the parties’ rights nor have a more-than-speculative chance of affecting them in the future” (internal quotation marks omitted)).

Third, plaintiffs allege that their personal cell phones and computers have been hacked by defendants and that l\/lontgomery has traced the lP addresses ofthe hacks to the NSA, thc DOD, and the CIA. Compl. llll 43-47, 60-64, 86-87, 95. But plaintiffs’ only

support for these allegations is l\/lontgomery’s own opinion that his computer and

4 As l already noted in Klayman 1 and Klayman 11, even if defendants tried to resurrect the Section 215 bulk collection program in the future, the FlSC has already made clear that it would not sanction such surveillance See Klayman, 2017 WL 5635668, at *9.

Klayman’s phone showed signs ofbeing hackcd. Compl. llll 43-47, 60-61. Without more, these sparse allegations are “similar to those in a number of cases that district courts have dismissed for patent insubstantiality: that plaintiff was subjected to a campaign of surveillance and harassment” by the Government. Tooley v. Napo[z'tano, 586 F.3d 1006, 1010 (D.C. Cir. 2009); see also, e.g., Lewl's v. Bayh, 577 F. Supp. 2d 47, 54~55 (D.D.C. 2008) (_rejccting as frivolous claims that a U.S. Senator orchestrated a program of hacking into plaintiff” s personal computer and monitoring his phone calls); Delal`ne v. United States Poslal Serv., 2006 WL 2687019, *2 (D.D.C. 2006) (dismissing complaint where plaintiff alleged that the U.S. Postal Service kept her under surveillance by unlawfully using electronic devises), aff’a’ No. 06-5321, 2007 U.S. App. LEXIS 7371 (D.C. Cir. June 1, 2007). Because plaintiffs’ claims regarding hacking oftheir cellular phones and computers constitute the sort of “patently insubstantial claims” routinely dismissed on jurisdictional grounds in our Circuit, 1 find that they, too, must be dismissed Tooley, 586 F.3d at 1009, 1010 (“A complaint may be dismissed on jurisdictional grounds when it is patently insubstantial.” (internal quotation marks omitted)). B. Count II: First Amendment Violation

ln addition to their Fourth Amendment challenge to defendants’ alleged surveillance programs, plaintiffs also challenge those programs under the First Amendment. Speci'fically, Klayman alleges that he has “suffered a chilling effect in his First Amendment rights” because he and his clients, including l\/lontgomery, are “afraid to speak over the phone and communicate otherwise for fear of being surveilled by Defendants.” 101 at ll 32. Klayman further asserts that his attorney-client privilege with his clients has been

compromised as a result of dcfendants" surveillance of his communications la'. Plainti'f"fs also broadly contend that defendants" alleged actions "chill, ifnot ‘kill’ speech” and violate their freedom of association by making “over a hundred million of /\mericans” afraid to contact other persons via cell phone, the internet. or social media. [a’. at llll 76-77. Unfortunatcly for plaintiffs l find that they lack standing to pursue this 1"irst Amendment claim. l-low so?

rl`he basis of plaintiffs" l"`irst Amendment claim is that the government has engaged in a pattern or practice of unlawful surveillance that has caused a chilling effect on their associations and communications and has caused them to fear being spied on by the government 1a’. at llll 32, 76-77. But in order to establish that defendants’ conduct caused a chilling effect sufficient to constitute a First Amendment violation, plaintiffs must first sufficiently allege that they have reason to believe that they were actually surveillcd. As 1 have already concluded however, plaintiffs have not made this showing lnstead, plaintiffs’ assertions that they "are afraid to speak over the phone” because the Government may be monitoring their communications, Compl. l| 32, constitute nothing more than a subjectivc---and baseless-erar of` surveillance, which the Supreme Court has held to be insufficient to confer standing in thc l"irst Amendment context See C`lappe/‘, 568 U.S. at 418 (explaining that allegations of a subjective chilling effect on speech and association “‘are not an adequate substitute for a claim ofspecific present objective harm or a threat of specific future harm"" (quoting Laird v. Tal'wn, 408 U.S. 1, 13-14 (1972)). '1"hus,

plaintiffs’ self-inflicted f~‘ar of surveillance, without more, is not fairly traceable to

defendants’ alleged surveillance activities and plaintiffs accordingly lack standing to pursue their lr`irst Amendment claim. See (j'la;);)er, 568 U.S. at 418. C. Count lV: Appointment ofa Special Master Plaintiffs next request that this Court “appoint a Special Master with the appropriate security clearance to conduct a real and [thoroughl investigation of the information contained on the hard drives” that Montgomery gave to the FBI and of the hacks of Klayman’s cell phone and l\/lontgomery’s computer. Compl. llll 94-95. Appointment of a special master in this eontcxt, however, would be inappropriate under the l3 ederal Rules of`Civil Procedure See Gov`t l)efs.’ l\/lcm. 28. llnder li`edcral Rulc of Civil Procedure 53(a)(1), a district court may appoint a special master only to: “(/\) perform duties consented to by the parties; (13) hold trial proceedings and make or recommend findings of fact on issues to bc decided without ajury if appointment is warranted by: ('i) some exceptional condition; or (ii) the need to perform an accounting or resolve a difficult computation of damages; or (C`) address pretrial and posttrial matters that cannot be effectively and

timely addressed by an available district judge or magistrate judge of the district."'

l\lonc of these circumstances are present in this case Defendants have understandably made clear that they do not consent to the appointment of a special master. See Gov’t Defs." l\/lcm. 29. And plaintiffs are requesting a special master to “conduct a real and through[sic] investigation ofthe information contained on the hard drives,” so the damages provision of Rulc 53('a)(1`) is not applicable Compl. llll 94495. Similarly, plaintiffs have

not alleged---and 1 have no reason to believe#~that this Court is ill-equipped to address any

pretrial matters in an effective and timely manner. C_'f.` Maclrz`gal Azirlio Labs., /nc. v. Cel/(), lilcl., 799 l".2d 814, 821 n.2 (2d Cir. 1986) ("`l_"l"lhc fact that the case involves complex issues of fact and law is no justification for reference to a l\/lastcr, but rather is a |com|pelling reason for trial before an experienced judge."’ (internal quotation marks omitted)). '1`hat accordingly leaves only the "exceptional condition” clement of Rule 53. But plaintiffs have offered no justification as to why their request constitutes an “cxccptional condition” sufficient to justify the appointment ofa special master, and 1 find none (.l/.` /l/lee/‘r)/)Ol v. Mee.s'e, 790 l"".2d 942, 961 (l).C. Cir. 1986) (“Thc decision whether to appoint a master lies within the discretion ofthe trial court. Such appointments arc the exception and not the rule, and the decision not to name one will very rarely constitute an abuse of discretion.” (internal citations and quotation marks omitted)). Plaintiffs’ request to appoint a special master must accordingly be denied D. Count V: Conversion

Plaintiffs’ fifth cause of action alleges a claim of common law conversion. Specifically, l\/lontgomcry alleges that the FBl, under the direction ofComey, induced him to turn over 47 hard drives containing evidence of defendants’ illegal surveillance, and he requests that 1 issue an order requiring defendants either to return the hard drives to him or to compensate him “with the fair market value of the hard drives at the time of the conversion.” Ia’. at l| 101, Unf`ortunately for plaintiffs 1 find that they have failed to properly allege a claim for conversion because the 14`131 and Comey_in his official

capacity ------ are immune from suit.

lt is axiomatic that "‘ltlhe United States, as sovereign, is immune from suit save as it consents to be sued . , ., and the terms ofits consent to be sued in any court define that court’s jurisdiction to entertain the suit."` United S/‘ales v. M/`lehell, 445 U.`S. 535, 538 ( 1980) (intcrnal quotation marks omitted). '1`he only waiver ofsovereign immunity that is conceivably applicable in this case is the lr`cderal fort Claims Act (“l"TCA”), 28 U.S.C. §§ 1346(b), 2679(a), which waives the United States’ sovereign immunity for certain common-law tort claims such as conversion The FTCA instructs however, that the "cxclusive rcmcdy" for a common law tort, such as conversion “is an action against the United States rather than against the individuals or the particular government agencies” l)o/'/nan v. T/zo/'")'il)z/rg/i, 740 l". Supp. 875, 879 (D.D.C. 1990); see also Sp/'i`)'zger v. Siip)/'eine (`ow'r off/re Ui'ill'ec/Slai‘es, l\lo. ()4-5140, 2004 Wl_/ 2348134, at *1 (D.C. Cir. ()ct, 18, 2004) (per curiam) ("[:fl"]he United States is the only proper defendant in an [FTCA:'| action."’); 28 ll,S.C. § 2679 (_"'1`he authority of any federal agency to sue and be sued in its own name shall not be construed to authorize suits against such federal agency on claims which are cognizable under section 1346(1)) of this title, and the remedies provided by this title in such cases shall be exclusive.”). Thus, a plaintiffcannot invoke the FTCA by filing suit against a government agency or a government official in his official capacity. See Cox v. Sec. o/`Lal)or, 739 1". Supp. 28. 29 (D.D.C. 1990) ("Since the plaintiffelected to sue the Secretary of 1 ,abor in her official capacity rather than the government itself, the complaint must fail for that reason alone for lack ofsubjcct matter jurisdiction.”). And a plaintiff also may not sue a government official in his individual capacity under the l"'l`CA. See ./o/znson v. 1_/)1/'/erlSl(’/le.s', 642 l". Supp. 2d 1, 3 n.3 (l").l).C. 2009) (_“()nly the United States is a

hrolier defendant to a claim under the l'*"l`C/\. 'l`hcref`ore, a claim under the li`"l`C/\ against thc BOP’s l)irector in his individual capacity must be dismissed for lack of subject matter jurisdiction.” (intcrnal citations omitted)).

l-lerc, plaintiffs have failed to name the United States as a defendant lnstead, they have sued a government agency ------- the 1*'131---and a government ofl'icial---Comey. See Compl. p. 28. 1’laintiffs’ failure to name the United Statcs as a defendant therefore “1'ec1tlires dismissal for lack of subject-matter jurisdiction"’ because plaintiffs have not established a waiver ofsovereign immunity under thc F'l`CA. ./o/inson v. Vefe/'ans Af/alrs Mecl. (_'f/~., 133 l<`. Supp. 3d 10, 17, 14 (D.D.C. 2015) (“lfsovercign immunity has not been waived a claim is subject to dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction.” ( internal quotation marks omitted)).

E. Count VI: Injunctive Relief Under the Privacy Act of 1974

ln Count VI ofthe Complaint, plaintiffs seek to compel the FBI to comply with the Privacy Act of 1974 and turn over all documentation related to l\/lontgomery’s interview with the FBI. Compl. at ll 108. Spccifically, plaintiffs seek "any and all documents that refer or relate in any way to any and all 302 reports of [:l\/lontgomery’s`_l interview" with the 1"131. /rl. at ll 103. l find, however, that the requested records are exempt from disclosure under the l)rivacy Act, and thus l must grant summary judgment in defendants’ favor.

'1`he Privacy Act of 1974, 5 U.S.C. § 552a, “regulates the collection, maintenance, use, and dissemination of information about individuals by federal agencics.” Mo/)le.y v. (1'1/1, 924 l-". Supp. 2d 24, 35 (D.D.C. 2013) (internal quotation marks omitted), a_/`“"a' 806 l".3d 568 (D.C. Cir. 201 5). Under the Act, any “agency that maintains a system of records”

must "upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system` permit him . . . to review the record and have a copy made of all or any portion thereof in a form comprehensible to him."` 5 U.S.C. § 552a(d`)(1). But agencies are permitted to exempt systems of records from this requirement under certain circumstances See /.'o’. § 552zi(j)(2). Spccifically, exemption (j)(2) applies if “( 1) the records are stored in a system of records that has been designated by the agency to be exempt from the Privacy Act"s disclosure requirements and (2) thc system of records is ‘maintained by an agency or component thereof which performs as its principal function any activity pertaining to the enforcement of criminal lawl:sl’ and consists of °iiif<)i'inati<)n compiled for the purpose of a criminal investigation."" Boe/z/n v. 1713/19481*`. Supp, 2d 9, 18 (D.D.C. 2013) (quoting 5 U.S.C. § 552a(j)(2)).

l'lcre_ the 302 reports that plaintiffs seek fall squarely within exemption (j)(2). 'l"he 1"111 is an agency that "performs as its principal function . . . the enforcement of criminal lawls|." lcl. And plaintiffs do not dispute that all 302 reports#including the one requested here-arc maintained within the l~*`Bl"s Central Records System, see 1’1s’ ()pp’n 25-27, which is an exempt system of records pursuant to 28 C.l".R. § 16.96. See 28 C.l"'".R. § 16.96 (exempting the l"` 131"s Ccntral Records System from the access provision in 5 U.S.C. § 552a(d)); see also Lee v. FBI, 172 F. Supp. 3d 304, 308 (D.D.C. 2()16)(“'1`he FBl’s CRS is a system of records specifically exempt from the individual access provision , . . of the l)rivacy Act to the extent permitted under 5 U.S.C. § 552a(l)(2), as implemented by 28 C.l".R. § 16.96."). /\lthough our Circuit has held that documents contained in the l"`Bl’s (i`entral l{ccords Systcm "qualify for exemption only if they constitute law enforcement

records within the meaning of the statute," the requested documents at issue in this case clearly meet that standard Doe v. FB[, 936 1*`.2d 1346, 1353 (D.C. Cir, 1991) ('emphasis added). 1"`1_)-302 reports are necessarily related to the FBl’s law enforcement function See lelardy Decl. ll 22 (defining a 302 report as a form "used by the l*`Bl to document interviews conducted in law enforcement investigations”). And this court has held that exemption (j)(2) specifically applies to 302 reports See, e.g., Taylor v. U.S. Dep ’l o/‘”JZ.istice, 257 F. Supp. 2d 101, 107 (D.D.C. 2003) (concluding that l"D-3()2 reports contained in the FBl’s Ccntral Rccords System “arc wholly exempt under l:Privacy /\ct| exemption (j)(2)”). l)ef`cndants’ motion for summary judgment on this count must accordingly be granted F. Count VII: Fraudulent Misrepresentation

Plaintiffs next claim that the FBI, “at the direction of and under the leadership of Defendant Comey,” falsely represented to Montgomery that the FBI would conduct an investigation into the evidence contained on his hard drives and in his oral testimony. 1a’. at ll 110. '1`hey allege that the li`Bl made this false representation with knowledge of its falsity and with an intent to deceive l\/lontgomery in order to induce him to turn over his hard drives and provide testimony under oath. lcl. at ll 111. llnfortunately for plaintiffs their claim for fraudulent misrepresentation suffers the same fate as their claim for conversion

l"raudulcnt misrepresentation like conversion, is a common-law tort claim that may only be asserted against the United States pursuant to a waiver of sovereign immunity under the l*"l"C/\. /\nd “tlie United States is the only proper defendant in an [:l"<"l`C/-\] action."y S/)i'inger, 2004 \'l\/l1 2348134, at *1. lelerc, plaintiffs have failed to name the

l_lnited Statcs as a defendant Se.e Compl. p. 30 (naming Comcy and the l*`Bl as the sole defendants under Count Vll). "l`hus, like their claim for conversion, plainti'f"fs’ claim for fraudulent misrepresentation must be dismissed for lack ofsubject matterjurisdiction See FDI(,` v. Meyer, 510 U.S. 471, 475 (1994) (“Sovereign immunity is jurisdictional in naturc."').

G. Count VIIl: Fourth Amendment Violation

The second Fourth Amendment claim in this case is different in kind from the first, but it ultimately must suffer the same fate. Montgoinery claims that the FBI violated his l"ourth Amendment rights when its agents raided his home, tied him to a tree, threatened him and his family, and searched and seized his property without probable cause or a warrant. Compl. ll 1 17. 'fo compensate him for his alleged injuries he seeks an award of compensatory and actual damages in excess of$3 million and punitive damages in excess of $30 million. 1(/. at ll 120. l have concludcd, however, that l\/lontgomcry’s claim is barred llow so'?

'1`he Supreme Court has made clear that “|_fi:|edcral constitutional claims for damages are cognizable only under Bivens[, 403 U.S. at 388], which runs against individual government officials pcrsonally. Loii/nief v. United S/ales, 828 13`.3d 935, 945 (D.C. Cir. 2016`), ()therwise, "s<)vei'eign immunity shields the Fedcral Government and its agencies from suit.” Del)/'ew v. Atwooa’, 792 l"`.3d 1 18, 124 (l).C. Cir. 2015). Here, plaintiffs named only the l"` 131 as defendant for the alleged violation of l\/lontgomery’s l"`ourth Amendment rights and resulting injuries; they did not name any defendants in their individual capacities or otherwise allege a B/'vens claim. See Compl. p. 31. Plaintiffs" fourth Amendment claim

under Count Vlll must therefore be dismissed for lack of subject matterjurisdiction C/.` Meye/", 510 U.S. at 457 (“Sovereign immunity isjurisdictional in nature.”). H. Plaintiffs’ Motion for a Preliminary Injunction 1n Count 111 of their Complaint, plaintiffs request preliminary and permanent injunctive relief to stop the government from wiretapping and surveilling them in violation of their flourth Amendment rights Compl. llll 81-88. 1n their l\/lotion for a Preliminary lnjunction plaintiffs request additional equitable relief that encompasses Counts \/, Vl, and Vll of their Complaint. Specifically, plaintiffs request that l issue an order enjoining defendants f`rom: (l) destroying evidence of their constitutional violations contained on l\/lontgomcry"s hard drives; (2) destroying documents related to l\/lontgomcry’s interview with the l""Bl; and (3) continuing their conversion ofl\/lontgomery’s hard drives Pls.’ l\/lot. 15-16. Unf`ortunately for plaintiffs 1 find that they have not met their burden for a preliminary injunction for any ofthe relief that they seek. 'l"o begin with, plaintiffs cannot show a likelihood of success on the merits5 on any ofthe claims that form thc basis of their motion for a preliminary injunction As discussed

plaintiffs cannot prevail on their l"ourth Amendment claim regarding unlawful surveillance

5 'l`here is tension in the case law regarding whether a plaintiff seeking a preliminary injunction must show a "likelihood of success on the merits” or a “substantial likelihood of success on the merits.” Compare Wiii/er v. l\lal. Res. De/.` Councz'/, 1nc., 555 U.S. 7, 20 (2008) (requiring the plaintiffto show “1ikely” success on thc merits), with Sollera, Inc. v. FDA, 627 F.3d 891, 893 (D.C. Cir. 2010) (requiring the plaintiffto show a “substantial likelihood” of success on the merits). Unfortunately, our Circuit has avoided clarifying the standard See, e.g., PursuingAmerl'ca's G)"ealness v. Feal. E/ec. Com/n., 831 F.3d 500, 505 n.l (D.C. Cir. 2016) (“We need not resolve here any tension in the case law regarding the showing required on the merits for a preliminary injunction . . . [because plaintiffl meets either standard.”). But even if plaintiffs need only show a likelihood of success on the merits_the less demanding standard~they have patently failed to do so. 1 therefore need not resolve the ambiguity our Circuit has left in play on this issue.

because they lack standing to do so, they cannot prevail on their common-law tort claims for conversion and fraudulent misrepresentation because they have sued the wrong parties and they cannot prevail on their claim under thc Privacy /-\ct because the requested documents are exempt from disclosure Plaintiffs thus have failed to satisfy the first------and most important~---factor for a preliminary injunction6 See EleC. Pr/'vacy ln_]‘o. Cl/”. v. FTC, 844 l"`. Supp. 2d 98, 101 (D.D.C. 2012) (‘“l`he likelihood ofsuccess requirement is the most important of these factors.").

_l)laintiffs also have not shown that they are likely to suffer irreparable harm in the absence of an injunction Because 1 have already concluded that plaintiffs’ allegations of government surveillance and hacking arc speculative at bcst, those allegations necessarily cannot support a finding of irreparable harm. See B/”own v. Disl. of('..`ola)nb/.`a, 888 1*`. Supp. 2d 28q 31< 2 (l').l`_).C. 2012) (explaining that the standard for establishing irreparable harm is "quite liigli,” and that the impending harm must “be both certain and great” as well as "actual and not theoretical"'). /\nd plaintiffs’ allegations ofconversion non-disclosure and fraudulent misrcprcsentation fare no better. Plaintiffs allege that they would suffer irreparable harm if l\/lontgomery’s hard drives and video interview are not preserved

because they constitute “direct proof" of defendants’ unconstitutional spying on which this

° Our Circuit has traditionally evaluated the four factors required for a preliminary injunction on a “sliding scale,” such that, “[ilftlie movant makes an unusually strong showing on one ofthe factors then it does not necessarily have to make as strong a showing on another factor.” Davl's v. Pensl'on Ben. Guar. Co/'p., 571 F.3d 1288, 1291-92 (D.C. Cir. 2009). lt is not clear, however, whether our Circuit’s sliding-scale approach survives the Supreme Court’s decision in Winler, 555 U.S. at 7. See Sher/ey v. Selvelias, 644 F.3d 388, 393 (D.C. Cir. 201 l) (“[Wle read Winler at least to suggest ifnot to hold that a likelihood of success is an independent, free-standing requirement for a preliminary injunction.” (internal quotation marks omitted)). l need not, however, resolve our Circuit’s lack ofclarity on this issue because 1 conclude that a preliminary injunction is improper “even under the less demanding sliding-scale analysis." Ia’.

lawsuit is premised Pls." l\/lot. 16. The harm that plaintiffs fear, however, is unwarranted At the status conference in this case, counsel for the Government defendants represented to this Court that the “hard drives are in a secure facility with the [llntelligence [Clommunity’s Office of lnspector General” and that there was “no risk” that they were “going to be destroyed anytime soon.” Status Hr’g Tr. 15:13~18, 19:13-15, June 23, 2017. 1 also instructed the Government to put a litigation hold on the video of the interview, as well_as any related FD-302 reports ia’. at 33:16-25, and the Government has confirmed that it has done so. Gov’t Defs.’ l\/lem. 42. Plaintiffs therefore cannot show that the impending harm they fear is anything more than theoretical

Finally, plaintiffs have not shown that the balance of equities weighs in favor of granting a preliminary injunction here. Plaintiffs’ primary argument on this point is that, without preservation of the hard drives and the interview tapes they “will lose the material evidence in this case.” Pls.’ l\/lot. 18. But as 1 have already explained the Government has represented to this Court that there is a litigation hold preventing the destruction of either the hard drives or the interview tapes T here is accordingly no need for a preliminary injunction to ensure that plaintiffs’ material evidence is preserved Plaintiffs also claim that public interest considerations counsel in favor of issuing an injunction here because "“|i|t is always in the public interest to prevent the violation of a party’s constitutional rights.”’ Ia’. at 19 (quoting/l)n Freea’o)n Def. Initiatl`ve v. Wasn. Melro. Area Transz't/luth., 898 F. Supp. 2d 73, 84 (D.D.C. 2012). But, as 1 have already concluded plaintiffs have

not made the requisite showing that a constitutional violation actually occurred here.

Plaintiffs accordingly cannot show that it Would be in the public interest to grant an injunction to prevent the alleged unconstitutional surveillance they allege has occurred CONCLUSION

This case marks what 1 expect will be the end of this Court’s role in adjudicating plaintiff Klayman’s challenges to the Govemment’s various surveillance programs While the diligence with which Klayman has sought to protect Americans’ constitutional rights against Government overreach over the last four and a half years is admirable, the allegations in this case, though sincerely advanced are largely frivolous and duplicative of ones 1 have already found to be insufficient in Klayman 1 and Klayman 11 . As such, 1 have no choice but to dismiss this case as well.

Thus, for all the reasons stated herein, the Government Defendants’ Motion to Dismiss and for Partial Summary Judgment is GRANTED, the lndividual Defendants’ Motion to Dismiss is GRANTED, and Plaintiffs’ Motion for a Preliminary Injunction is DENIED. Plaintiffs’ complaint is accordingly DISMISSED with prejudice A separate Order consistent with this decision accompanies this Memorandum Opinion.

(' ' t

\&\lmmm\l Rch iARba-‘. LEoN United States District Judge