Zachary Chesser v. Barbara Chesser

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:13-cv-00129-LO-IDD. Copies to all parties and the district court/agency. [999575888]. Mailed to: B. Chesser. [13-7239]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-7239

ZACHARY ADAM CHESSER, a/k/a Abu Talhah,
Plaintiff – Appellant,
v.
BARBARA KATENBRINK CHESSER; STACY ANDERSON; LORI BATTISTONI;
MARYSE C. ALLEN,
Defendants – Appellees,
PAULA MENGES; SEAN KIRGAN; GEORGE PIRO; STEPHEN
FEDERAL BUREAU OF INVESTIGATION; SECRET SERVICE,

HEBERT;

Parties-in-Interest – Appellees.
-----------------------------LARTEASE MARTRELL TIFFITH, Esq.,
Amicus Curiae.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Liam O’Grady, District
Judge. (1:13-cv-00129-LO-IDD)

Argued:

March 26, 2015

Before SHEDD and
Circuit Judge.

AGEE,

Decided:

Circuit

Judges,

and

May 1, 2015

HAMILTON,

Senior

Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.

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ARGUED: Jason Ryan LaFond, MAYER BROWN, LLP, Washington, D.C.,
for Appellant.
Lowell Vernon Sturgill, Jr., UNITED STATES
DEPARTMENT
OF
JUSTICE,
Washington,
D.C.,
for
Appellees.
Lartease Martrell Tiffith, GOLDSTEIN & MCCLINTOCK, Washington,
D.C., as Court-Assigned Amicus Counsel.
ON BRIEF: Joyce R.
Branda, Acting Assistant Attorney General, Barbara L. Herwig,
Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C.; Dana J. Boente, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Zachary Chesser, on behalf of himself, his wife, and his
minor

child, 1

brought

this

action

against

various

state

and

federal officials and agencies, alleging that they violated his
constitutional

and

statutory

rights

in

relation

to

custody

hearings between Chesser, his wife, and his mother. Chesser, a
federal prisoner proceeding pro se, filed a complaint of more
than 100 pages (and included more than 100 additional pages of
attachments)
Foreign

and

alleged

Intelligence

claims

Surveillance

under

the

Constitution,

the

Act,

the

Privacy

and

Act,

Bivens v. Six Unknown Named Agents, 403 U.S. 388, 397 (1971).
Applying

its

gatekeeper

function

under

the

Prison

Litigation

Reform Act (PLRA), the district court sua sponte dismissed the
complaint as frivolous prior to service. Chesser moved under
Federal Rule of Civil Procedure 60(b) for reconsideration and
attached a proposed amended complaint. The district court denied
the motion and concluded that amendment would be futile because
Chesser’s complaint failed to comply with Federal Rule of Civil

1

Jaime Smith was also listed as a plaintiff in the original
complaint; she is not included in the amended complaint and is
not part of this appeal.

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Procedure 11(a) and still failed to state viable claims. Chesser
noted a timely appeal. 2
On appeal, and now represented by counsel, Chesser contests
the district court’s conclusion that his complaint was frivolous
and the court’s denial of his Rule 60(b) motion and his motion
to file an amended complaint. In addition, Chesser specifically
argues that two claims—a Bivens claim and a Privacy Act claim—
have merit. Having reviewed the parties’ filings, and with the
benefit of oral argument, we affirm the dismissal of Chesser’s
original complaint as frivolous and the denial of the Rule 60(b)
motion on all but the specified Bivens and Privacy Act claims.
We also affirm the denial of Chesser’s Rule 60(b) motion as to
his Bivens claim, albeit on slightly different grounds than the
district court. See Wilson v. Libby, 535 F.3d 697, 704-05 (D.C.
Cir.

2008)

(Privacy

Act

precludes

Bivens

remedy

for

alleged

violation of Fifth Amendment right to privacy); Downie v. City
of

Middleburg

(finding

Heights,

Privacy

Act

is

301
a

F.3d

688,

698

“comprehensive

(6th

Cir.

legislative

2002)
scheme”

that precludes additional Bivens remedies).

2

Because the Government had not been served with Chesser’s
complaint, we invited it to file a brief as an interested party
on appeal. We also appointed amicus curiae to argue on behalf of
the district court’s determination that Chesser’s complaint was
frivolous.

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However,

we

vacate

and

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remand

on

Chesser’s

Privacy

Act

claim against the FBI and Secret Service. 3 The district court did
not expressly pass upon this claim in denying Chesser’s Rule
60(b) motion, 4 and the Government, which has not yet been served
as a party in the district court, requests that the claim be
remanded

to

the

district

court.

See

Gov’t

Br.

at

28

(“The

district court did not specifically explain why the complaint
fails to state a Privacy Act claim

. . . [w]e believe that

claim should be remanded for the district court to address it in
the first instance”).
Based

on

the

foregoing,

we

affirm

the

dismissal

of

Chesser’s original complaint and the denial of Chesser’s Rule
60(b) motion except for the Privacy Act claim. On that claim, we
vacate the district court’s order and remand with instructions

3

We do not remand Chesser’s Privacy Act claims against any
individual defendants, however, because the Act only authorizes
suit against federal agencies. See 5 U.S.C. §§ 552(a)(4)(B),
552a(g)(1); see also Martinez v. Bureau of Prisons, 444 F.3d
620, 624 (D.C. Cir. 2006).
4

The district court denied the Rule 60(b) motion and the
motion to file an amended complaint because Chesser’s wife
failed to comply with Rule 11(a), which requires parties (here,
Chesser’s wife) to sign pleadings and instructs a court to
“strike an unsigned paper unless the omission is promptly
corrected.” Fed. R. Civ. P. 11(a). Chesser has “corrected” the
violation on appeal by affirming that his wife is no longer a
party to the action.

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to permit Chesser to file an amended complaint raising only a
Privacy Act claim against the FBI and Secret Service.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

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