Whitaker v. Barksdale Air Force Base et al

Filing 10

MEMORANDUM RULING granting 3 Motion to Dismiss for Failure to State a Claim; granting 6 Motion to Dismiss for Lack of Jurisdiction, Motion to Dismiss for Failure to State a Claim, Motion to Dismiss, Motion for More Definite Statement. Signed by Judge Elizabeth E Foote on 2/11/2015. (crt,Dauterive, C)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION

JACQUELINE L. WHITAKER

CIVIL ACTION NO. 14-2342

VERSUS

JUDGE ELIZABETH FOOTE

BARKSDALE AIR FORCE BASE, ET AL.

MAGISTRATE JUDGE HORNSBY

MEMORANDUM RULING
Before this Court are Motions To Dismiss filed by the Defendants, Barksdale Air
Force Base (“BAFB”), the Federal Bureau of Investigation (“FBI”), the United States
Attorney’s Office (“U.S. Attorney”), and the Louisiana Department of Public Safety and
Corrections–Louisiana State Police (“Louisiana State Police”). [Record Documents 3
and 6]. The Defendants, in two separate motions, seek to dismiss the Complaint filed
pro se by the Plaintiff, Jacqueline L. Whitaker, which accuses these federal and state
agencies of numerous constitutional and statutory violations, including violations of the
Foreign Intelligence Surveillance Act (“FISA”) and the Electronic Communications
Privacy Act (“ECPA”). [Record Document 1]. The Louisiana State Police seeks to
dismiss the suit for lack of subject matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1), and in the alternative, it seeks dismissal pursuant to Rule 12(b)(6),
Rule 12(b)(4), Rule 12(b)(5), and Rule 12(e). [Record Document 6]. While the Motion To
Dismiss filed by BAFB, the FBI, and the U.S. Attorney, collectively referred to as the
“federal Defendants,” argues for dismissal principally under Rule 12(b)(6), the motion

Page 1 of 19

also seeks dismissal for lack of subject matter jurisdiction.1 [Record Document 3]. The
Plaintiff then filed Responses in opposition to each Motion To Dismiss. [Record
Documents 5 and 8].2 For the reasons set forth below, the Court GRANTS the
Defendants’ Motions To Dismiss [Record Documents 3 and 6], and the Plaintiff’s claims
against the Defendants are DISMISSED.
I.

Background
The Plaintiff alleges a variety of constitutional and statutory violations by federal

and state agencies and requests primarily monetary relief for these violations. Record
Document 1, p. 2. According to the Complaint, the case appears to be precipitated by a
local parking dispute with a neighbor, Bob Coates (“Coates”), who is a retired airman
operating a day care facility with his wife out of his home, which is located across the
street from the Plaintiff’s house. Id., at p. 1. After the Plaintiff wrote letters concerning
the use of her driveway and the traffic congestion caused by Coates’ day care, the
Complaint explains that Coates informed officials at BAFB that the Plaintiff was
responsible for “terrorizing his family.” Id.

1

As explained in their brief, the federal Defendants omit a lengthy discussion of the Plaintiff’s
failure to plead proper subject matter jurisdiction with her Complaint, but they do raise this jurisdictional
challenge with regard to both the Plaintiff’s constitutional and statutory claims in a footnote. Record
Document 3-1, p. 2 n. 2; see Fed. R. Civ. P. 12(b)(1).
2

In terms of the Plaintiff’s pleadings, because she is litigating this matter pro se, the Court holds
her pleadings to “less stringent standards than formal pleadings drafted by lawyers.” See Hale v. King, 642
F.3d 492, 499 (5th Cir. 2011) (quoting Calhoun v. Hargrove, 312 F.3d 730, 733 (5th Cir. 2002)). The Court
also notes that it is excluding from its consideration materials the Plaintiff attached to her first Response,
including two written statements from her daughters and a letter from Senator Rand Paul of Kentucky to
Robert Mueller, then-Director of the FBI. See Fed. R. Civ. P. 12(d); Record Document 5-1. In doing so, the
Court is not going “outside the complaint,” which would require treating a motion to dismiss based on Rule
12(b)(6) as a motion for summary judgment. Rodriguez v. Rutter, 310 F. App’x 623, 626 (5th Cir. 2009)
(quoting Scanlan v. Tex. A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003)).

Page 2 of 19

It was at this time, the Plaintiff alleges, that BAFB officials obtained warrants to
place the Plaintiff under surveillance and requested the assistance of the other
Defendants,3 including the FBI and the Louisiana State Police. Id. With the FBI’s
approval, unmanned drones, helicopters, and agents from both federal and state
agencies began conducting surveillance of the Plaintiff beginning in January 2011. Id.
The Plaintiff further explains that tracking and listening devices were placed
without her consent in a used car that she purchased in November 2011. Id., at p. 2.
The Complaint then goes on to assert that the Plaintiff’s home was searched over 100
times between July 2013 and July 2014, including a July 10, 2014, incident when
federal agents reportedly entered her attic to install monitoring devices, damaging the
attic’s electrical wiring. Id. As a result of this alleged surveillance and property damage,
the Plaintiff now seeks monetary relief for the value of her car, the cost of repairing her
attic’s electrical wiring, and $3.5 million in punitive damages. Id.4
II.

The Defendants’ Motions To Dismiss for Lack of Subject Matter
Jurisdiction
Courts are instructed to first consider jurisdictional challenges raised by a

defendant, pursuant to Rule 12(b)(1), before addressing any claim against the merits of
a complaint. See Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). As
such, this Court will analyze the Defendants’ jurisdictional claims before addressing their
Rule 12(b)(6) claims or any other alternative grounds for dismissal.
3

The Memorandum in Support filed by the federal Defendants explains that the Plaintiff is filing
suit against the U.S. Attorney, given the Complaint’s caption, even though she references the “State
Attorney” in the body of her Complaint. Record Document 3-1, p. 2 n. 1.
4

The Plaintiff also requests to be informed of any criminal charges against her, the right to crossexamine any witnesses making statements against her, and a public trial. Record Document 1, p. 2.

Page 3 of 19

A.

Rule 12(b)(1)

Rule 12(b)(1) permits a party to assert that a plaintiff’s complaint should be
dismissed for “lack of subject-matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). A case is
properly dismissed under this rule when a court lacks either the statutory or
constitutional authority to hear the case. Home Builders Ass’n of Miss., Inc. v. City of
Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998) (citing Nowak v. Ironworkers Local
6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)).5 When considering jurisdictional
challenges,“the plaintiff constantly bears the burden of proof that jurisdiction does in fact
exist.” Ramming, 281 F.3d at 161. Courts are to accept the veracity of the facts and
accusations set forth in a complaint, and any motion to dismiss based on Rule 12(b)(1)
should only be granted when “it appears certain that the plaintiff cannot prove any set of
facts in support of his claim that would entitle plaintiff to relief.” Id. (citing Home Builders,
143 F.3d at 1010); see Choice Inc. of Tex. v. Greenstein, 691 F.3d 710, 714 (5th Cir.
2012).
B.

Subject Matter Jurisdiction over the Louisiana State Police

The Louisiana State Police’s primary argument is that the Plaintiff’s Complaint
should be dismissed based on the protections of the Eleventh Amendment, as it is a
state agency that has neither consented to suit nor has Congress abrogated its state
sovereign immunity. Record Document 6-1. The Eleventh Amendment bars suits for
monetary relief by citizens in federal court against either states or their agencies, unless
5

This lack of subject matter jurisdiction may be found in three ways: “(1) the complaint alone; (2)
the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint
supplemented by undisputed facts plus the court's resolution of disputed facts.” Barrera-Montenegro v.
United States, 74 F.3d 657, 659 (5th Cir. 1996) (quoting Voluntary Purchasing Grps., Inc. v. Reilly, 889
F.2d 1380,1384 (5th Cir. 1989)) (internal quotation marks omitted).

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that state has waived its immunity and consented to suit. Pennhurst State Sch. & Hosp.
v. Halderman, 465 U.S. 89, 100 (1984); Champagne v. Jefferson Parish Sheriff’s Office,
188 F.3d 312, 313 (5th Cir. 1999). Similarly, suits brought against state officials or
agents are also barred when the state is the “real, substantial party in interest,”
regardless of whether a plaintiff seeks damages or injunctive relief. Pennhurst, 465 U.S.
at 101 (quoting Ford Motor Co. v. Dep’t of Treasury of Ind., 323 U.S. 459, 464 (1945)).
Of course, there are limits to this immunity. When a state official’s actions are not
taken on behalf of a state or a state agency, a plaintiff may seek injunctive relief to
prohibit the continued impermissible activity of that official so long as the plaintiff does
not seek retroactive monetary relief for it. Id. at 102 (citations omitted). A state may also
waive its sovereign immunity, which permits it to be subject to suit, whether in state or
federal court. See id. at 99 & n.9. Lastly, Congress may abrogate a state’s sovereign
immunity to authorize a suit to be brought in federal court against a non-consenting
state to enforce the protections of the Fourteenth Amendment. See Kimel v. Fla. Bd. of
Regents, 528 U.S. 62, 79-80 (2000).
i.

The Alleged Violations of the Plaintiff’s Constitutional Rights
by the Louisiana State Police

The Louisiana State Police argues that the Plaintiff’s constitutional claims must
be dismissed because this Court lacks subject matter jurisdiction under Rule 12(b)(1).
Although not explicitly pled in her Complaint, the Plaintiff’s Responses indicate that her
constitutional claims against the Louisiana State Police appear to be made pursuant to
42 U.S.C. § 1983. See Record Document 5, p. 3, and Record Document 8, pp. 1-2. The
Plaintiff, in support of these allegations, claims that the Louisiana State Police assisted
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BAFB officials in placing her under surveillance, including the use of aerial and ground
surveillance and numerous intrusions into her home. Record Document 1, pp. 1-2.6
The Louisiana State Police correctly argues that it, as a state-based law
enforcement agency, is entitled to sovereign immunity under the Eleventh Amendment.
It is well-settled law in the Fifth Circuit that the Louisiana State Police is “an arm of the
State” that is entitled to Eleventh Amendment immunity for purposes of § 1983. See
Lavergne v. La. State Police, No. 6:13-cv-2189, 2014 WL 906285, at *3-4 (W.D. La.
Mar. 7, 2014) (citing cases). Moreover, the limitations on state sovereign immunity
noted above do not apply here. Louisiana has not waived its sovereign immunity for
either itself or its agencies in federal court, see La. Rev. Stat. § 13:5106(A), and
Congress did not abrogate state sovereign immunity for § 1983 claims. See
Champagne, 188 F.3d at 314 (citing Quern v. Jordan, 440 U.S. 332, 345 (1979)).
Therefore, even accepting as true the Plaintiff’s factual allegations, this Court
lacks subject matter jurisdiction over the Louisiana State Police to hear these
constitutional claims. This Court agrees that the Louisiana State Police is “an arm of the
State” and finds that Louisiana and its agencies have not waived state sovereign
immunity given the clarity of Louisiana Revised Statute § 13:5106(A).7 The Plaintiff has
6

The Court notes that the facts connecting the Louisiana State Police to the Plaintiff’s accusations
are lacking, but they appear to address the basic elements of a § 1983 claim: (1) a plaintiff being deprived
of a constitutional right or a right secured by the law of the United States, and (2) this deprivation is
caused by a state agent acting under the color of law. West v. Atkins, 487 U.S. 42, 48 (1988). While the
Plaintiff directs a claim against two Louisiana State Police officials under Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), in her second Response, the Court assumes
that she seeks to bring any action against the Louisiana State Police or its officials for a violation of her
rights under § 1983, as Bivens actions are only brought against federal officials for alleged unconstitutional
conduct. See Abate v. S. Pac. Transp. Co., 993 F.2d 107, 110 (5th Cir. 1993).
7

Louisiana Revised Statute § 13:5106(A) explains that “[n]o suit against the state or a state
agency or political subdivision shall be instituted in any court other than a Louisiana state court.”

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thus neither established this Court’s jurisdiction, which she bears the burden of proving,
nor has she demonstrated that an exception to the Eleventh Amendment applies.
Consequently, this Court finds that any constitutional claims asserted against the
Louisiana State Police by the Plaintiff must be DISMISSED, pursuant to Rule 12(b)(1),
as this Court lacks subject matter jurisdiction.
ii.

The Alleged Violations of the Plaintiff’s Statutory Rights by the
Louisiana State Police

The Louisiana State Police makes similar jurisdictional arguments under Rule
12(b)(1) with regard to the statutory claims the Plaintiff alleges pursuant to FISA and
ECPA. Record Document 6-1, pp. 8-11. Given that Louisiana has not waived its
sovereign immunity and the Defendant is a state agency, rather than a state official, the
Louisiana State Police correctly observes that this Court must only determine whether
Congress abrogated Eleventh Amendment immunity when it enacted FISA and ECPA.
The focus of the argument against abrogation by the Louisiana State Police rests on the
statutory language used by Congress in both acts to permit monetary relief and how it,
as a state agency, does not unequivocally fall within those definitions of “persons” that
can be held civilly liable. Id. While the Plaintiff’s pleadings do not detail what specific
actions, if any, by the Louisiana State Police violated either statute, the Court does not
need to analyze the merits of her claims for purposes of jurisdiction under Rule 12(b)(1).
In determining whether Congress abrogated a state’s sovereign immunity, courts
should consider two questions: “first, whether Congress has ‘unequivocally expresse[d]
its intent to abrogate the immunity,’ and second, whether Congress has acted ‘pursuant
to a valid exercise of power.’” Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 55 (1996)
Page 7 of 19

(quoting Green v. Mansour, 474 U.S. 64, 68 (1985)). The test for making such a
determination is “simple but stringent” and permits abrogation when Congress states its
“intention unmistakably clear in the language of the statute.” Kimel, 528 U.S. at 73
(quoting Dellmuth v. Muth, 491 U.S. 223, 228 (1989)). Congress must additionally act
pursuant to a valid exercise of power under § 5 of the Fourteenth Amendment when
abrogating states’ immunity. Kazmier v. Widmann, 225 F.3d 519, 523 (5th Cir. 2000).
(1)

The Louisiana State Police’s Alleged Violations of FISA

In terms of FISA, the Louisiana State Police explains that while an aggrieved
person who has been subjected to prohibited electronic surveillance “shall have a cause
of action against any person who committed such violation and shall be entitled to
recover” monetary damages, the use of “person” does not “unequivocally authorize civil
liability against states or their agencies” necessary to abrogate sovereign immunity.
Record Document 6-1, p. 9 (emphasis added) (quoting 50 U.S.C. § 1810). The
Louisiana State Police notes a “person,” for FISA purposes, is defined as “any
individual, including any officer or employee of the Federal Government, or any group,
entity, association, corporation, or foreign power.” Id. (quoting 50 U.S.C. § 1801(m)).
Reasoning that the definition of “person” does not unequivocally include states or state
agencies, the Louisiana State Police argues that Congress did not abrogate its
sovereign immunity to permit it to be held civilly liable for potential violations of FISA. Id.
Here, the Court agrees with the Louisiana State Police and finds that Congress
did not unmistakably make clear any intention to abrogate the states’ immunity with
FISA. See Kimel, 528 U.S. at 73. A reading of the statute’s text does not indicate any

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explicit waiver by Congress of the protections of the Eleventh Amendment, and this
Court cannot find that the Louisiana State Police unquestionably falls within 50 U.S.C. §
1801(m)’s definition of “person.” In particular, the terms “group” and “entity” are
undefined in the statute, and it is not clear that any state governmental unit is subject to
civil liability under FISA. Likewise, in analyzing the jurisprudence surrounding civil
liability under FISA, this Court was unable to find any support, whether inside of the
Fifth Circuit or outside of it, for the proposition that Congress unequivocally abrogated
states’ sovereign immunity by enacting 50 U.S.C. § 1810. This Court cannot read into
the definition of “person” any intent on the part of Congress that might possibly subject
the Louisiana State Police to monetary damages for a purported violation of FISA. See
Kimel, 528 U.S. at 73; see also Al-Haramain Islamic Found. v. Obama, 705 F.3d 845,
852 (9th Cir. 2012) (noting an ambiguity should be construed in the sovereign’s favor).
Accordingly, the Court finds that any statutory claims under FISA for monetary relief
against the Louisiana State Police by the Plaintiff must be DISMISSED under Rule
12(b)(1), as this Court lacks subject matter jurisdiction.
(2)

The Louisiana State Police’s Alleged Violations of ECPA

The Louisiana State Police makes a more complex jurisdictional argument
against abrogation based on the definitions contained in ECPA and the statute’s
construction. Neither the Plaintiff’s Complaint nor Responses outline how the Louisiana
State Police’s purported actions violated this act, but ECPA permits “any person whose
wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in
violation of this chapter [to recover in a civil action] from the person or entity, other than

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the United States, which engaged in that violation.” 18 U.S.C. § 2520(a) (emphasis
added). The Louisiana State Police concedes that while the inclusion of “entity” in 18
U.S.C. § 2520(a) may encompass a state “governmental unit,” this use of “entity,”
without more, fails to abrogate its immunity.
Relying on jurisprudence from the Seventh Circuit, the Louisiana State Police
argues that 18 U.S.C. § 2520(a) does not create a cause of action alone and that it only
permits monetary relief after other substantive provisions of ECPA are violated. See
Record Document 6-1, p. 10. Given the facts as pled by the Plaintiff, the Louisiana State
Police presumes that the substantive violation of ECPA alleged in the Complaint must
be found in 18 U.S.C. § 2511(1), which only prohibits the interception, disclosure, or
intentional use of wire, oral, or electronic communications by a person, rather than an
entity. Id. (citing Seitz v. City of Elgin, 719 F.3d 654, 658-59 (7th Cir.), cert. denied, 134
S. Ct. 692 (2013)). As such, the Louisiana State Police contends that it, as a state
agency, cannot be subject to civil liability under 18 U.S.C. § 2520(a), because the
substantive violation alleged in the Plaintiff’s pleadings only provide for liability if those
actions are taken by “persons.”8 Therefore, due to the definitions and the statute’s
construction, the Louisiana State Police argues Congress cannot be said to have
unequivocally abrogated its sovereign immunity by enacting ECPA.
The Court agrees with the Louisiana State Police’s argument and reading of
ECPA, and it finds that it lacks subject matter jurisdiction over the Plaintiff’s claims. The

8

Under 18 U.S.C. § 2510(6), ECPA defines a person as “any employee, or agent of the United
States or any State or political subdivision thereof, and any individual, partnership, association, joint stock
company, trust, or corporation.”

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Court notes that while the use of “entity” in 18 U.S.C. § 2520(a) likely permits civil
liability against state agencies for other violations of ECPA,9 the Court must presume,
given the facts alleged, that any purported actions by the Louisiana State Police relate
to a violation of 18 U.S.C. § 2511(1). However, as the Seventh Circuit explains, a
violation of this provision does not permit any civil recovery against state governmental
entities under ECPA: “[o]nly a ‘person’ can violate § 2511(1). And because § 2520
creates a cause of action only for [violations of ECPA], it necessarily follows that § 2520
confers a cause of action to enforce § 2511(1) only against persons as defined by the
statute.” Seitz, 719 F.3d at 659. Although there is a split amongst the circuit courts, and
a district court within the Fifth Circuit has found that ECPA, in fact, provides for civil
liability against governmental entities, that ruling does not adequately address the
omission of “entity” from 18 U.S.C. § 2511(1).10 Thus, without instruction from the Fifth
Circuit on this point, this Court finds that the reasoning from Seitz should be applied
here. If Congress sought to permit the recovery of civil damages from states or state
agencies, like the Louisiana State Police, for violations of 18 U.S.C. § 2511(1), it would
have included the term “entity” in the provision to make its intention clear as to those

9

See, e.g., 18 U.S.C. § 2511(3)(a) (“[A] person or entity providing an electronic communication
service to the public shall not intentionally divulge the contents of any communication . . . while in
transmission on that service to any person or entity other than an addressee or intended recipient of such
communication or an agent of such addressee or intended recipient.”) (emphasis added).
10

Garza v. Baxar Metro. Water Dist., 639 F. Supp. 2d 770, 773-74 (W.D. Tex. 2009). This Court
agrees with Garza that there is a split in authority among the circuit courts that have addressed whether
governmental entities may be liable for civil damages under ECPA. See id. Nevertheless, this Court
disagrees with Garza’s holding to the extent that it permits civil damages against state agencies for any
violation of ECPA, especially where Congress has not amended the statute’s provisions to include “entity”
as those capable of being liable for a given violation. Compare 18 U.S.C. § 2511(1), with 18 U.S.C. §
2511(3)(a).

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who could be held accountable for such violations.11 Thus, this Court finds that any
statutory claims by the Plaintiff under ECPA must be DISMISSED against the Louisiana
State Police under Rule 12(b)(1), because the Court lacks subject matter jurisdiction.
C.

Subject Matter Jurisdiction for the Federal Defendants

The Court must next address whether the Plaintiff’s constitutional and statutory
claims against the federal Defendants should be dismissed pursuant to Rule 12(b)(1).
Although this basis for dismissal is not the focus of the federal Defendants’ brief, they
assert that the Plaintiff has failed to establish this Court’s subject matter jurisdiction.
Record Document 3-1, p. 2 n. 2.
The law is well established that “[a]bsent a wavier, sovereign immunity shields
the Federal Government and its agencies from suit.” FDIC v. Meyer, 510 U.S. 471, 475
(1994). Moreover, a “waiver of sovereign immunity must be ‘unequivocally expressed’ in
statutory text,” and “[l]egislative history cannot supply a waiver that is not clearly evident
from the language of the statute.” FAA v. Cooper, 132 S. Ct. 1441, 1448 (2012)
(citations omitted). It is a plaintiff’s burden of showing “Congress’s unequivocal waiver of
sovereign immunity.” St. Tammany Parish ex rel Davis v. FEMA, 556 F.3d 307, 315 (5th
Cir. 2009) (citations omitted).

11

The Fifth Circuit has addressed 18 U.S.C. § 2520(a) and interpreted its use and application with
regard to other provisions of ECPA. In outlining the interplay between 18 U.S.C. § 2520(a) and § 2511(1),
the Fifth Circuit noted “it is generally presumed that Congress acts intentionally and purposely when it
includes particular language in one section of a statute but omits it in another.” See Peavy v. WFAA-TV,
Inc., 169 F.3d 158, 169 (5th Cir. 2000) (quoting BFP v. Resolution Trust Corp., 511 U.S. 531, 537 (1994)).

Page 12 of 19

i.

The Alleged Violations of the Plaintiff’s Constitutional Rights
by the Federal Defendants

In their Motion To Dismiss, the federal Defendants briefly assert a challenge to
this Court’s subject matter jurisdiction to hear the Plaintiff’s constitutional claims
pursuant to Rule 12(b)(1). Because each party is a component of another federal
agency, the federal Defendants “challenge their consent to be sued, and assert they are
not proper party defendants as to plaintiff’s constitutional claims.” Record Document 31, p.2 n. 2. They further contend that “this action may be deemed an action against the
Sovereign,” which has not waived its immunity. Id. The Plaintiff’s pleadings explain that
her allegations against the federal Defendants are premised on violations of the Fourth,
Fifth, Sixth, and Fourteenth Amendments, and the Court presumes that the Plaintiff
seeks to bring some of her claims pursuant to a Bivens action, as the accusations are
asserted against federal agencies and the actions of their agents. See Mauro v.
Freeland, 735 F. Supp. 2d 607, 614 (S.D. Tex. 2009). However, the construction of the
Plaintiff’s pleadings makes it difficult to determine the exact or proper basis for her
claims against these federal Defendants.
Without the consent of the federal Defendants or a waiver of their immunity, this
Court cannot find that the Plaintiff has established its subject matter jurisdiction over her
constitutional claims. Federal agencies, like the federal Defendants, are shielded from
suit by sovereign immunity to the same extent as the federal government. Meyer, 510
U.S. at 475. Similarly, a Bivens action may not be brought against the federal
government or its agencies, because it only permits a cause of action against
government officials in their individual capacities. See Affiliated Prof’l Home Health Care
Page 13 of 19

Agency v. Shalala, 164 F.3d 282, 286 (5th Cir. 1999). The Plaintiff’s pleadings only
name the agencies as defendants, and her first Response, at best, only appears to
direct allegations against federal officials in their official capacities. Record Documents 1
and 5. Even construing the pleadings favorably, nothing the Plaintiff has provided
demonstrates that she has carried her burden of proving sovereign immunity has been
waived or that this Court has jurisdiction to hear these claims. Consequently, any claim
by the Plaintiff against the federal Defendants for the purported violations of her
constitutional rights must be DISMISSED under Rule 12(b)(1), as this Court lacks
subject matter jurisdiction.
ii.

The Alleged Violations of the Plaintiff’s Statutory Rights by the
Federal Defendants

The federal Defendants similarly challenge this Court’s subject matter jurisdiction
to hear the Plaintiff’s FISA and ECPA allegations. The Motion To Dismiss simply argues
that the Complaint fails to “establish subject matter jurisdiction over the defendant
agencies for any alleged statutory violations.” Record Document 3-1, p. 2 n. 2. Although
neither the Complaint nor the Responses make entirely clear what specific acts of these
federal Defendants violated either statute, the Court does not need to address the
merits of the Plaintiff’s statutory claims to determine whether it has jurisdiction.
(1)

The Federal Defendants’ Alleged Violations of FISA

As detailed above, under FISA, an aggrieved person who has been subjected to
prohibited electronic surveillance “shall have a cause of action against any person who
committed such violation and shall be entitled to recover” monetary damages. 50 U.S.C.
§ 1810 (emphasis added). A “person” who can be held civilly liable under this provision
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is defined as “any individual, including any officer or employee of the Federal
Government, or any group, entity, association, corporation, or foreign power.” 50 U.S.C.
§ 1801(m). Given this definition, the Court now must decide if Congress waived the
federal Defendants’ immunity when enacting FISA and its civil liability provision. See
Meyer, 510 U.S. at 475.
The Fifth Circuit appears not to have addressed this issue yet, but in AlHaramain Islamic Foundation, Inc. v. Obama, the Ninth Circuit engaged in an extensive
analysis of whether Congress sought to waive the federal government’s sovereign
immunity with 50 U.S.C. § 1810. 705 F.3d at 850-55. There, the Ninth Circuit found
Congress “deliberately did not waive immunity with respect to § 1810” and explained the
omission of the “United States” from the definition of persons that could be held civilly
liable was glaring and intentional. Id. at 851-52, 855. The Ninth Circuit reasoned that
Congress understood how to explicitly waive immunity in the context of FISA and that it
failed to do so through the statute’s ambiguous definition of “person.” Id. at 852 (noting
any ambiguity should be construed in the sovereign’s favor).
With the Ninth Circuit’s analysis, this Court agrees that Congress did not waive
the federal government’s sovereign immunity when enacting FISA and finds that it does
not have subject matter jurisdiction over the Plaintiff’s claims. The Plaintiff has provided
the Court with nothing to demonstrate its jurisdiction in this case. Without any support or
argument that Congress unequivocally expressed its intent to waive these agencies’
immunity with 50 U.S.C. § 1810, any ambiguity must be viewed favorably for the federal
Defendants. See id. at 851-52. The Court here must find that these federal Defendants
are shielded from suit, as the Plaintiff clearly has failed to carry her burden of proving
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this Court’s jurisdiction over these named agencies. See Davis, 556 F.3d at 315. Thus,
this Court finds that any claim under FISA against the federal Defendants must be
DISMISSED under Rule 12(b)(1), as the claims are barred by sovereign immunity. See
Meyer, 510 U.S. at 475.
(2)

The Federal Defendants’ Alleged Violations of ECPA

The Court has already established above that ECPA permits the recovery of civil
damages against both persons and entities for violations of the statute. However, unlike
in the context of state governmental entities, the provision permitting the recovery of
civil damages unambiguously shields the federal government from liability. The
provision states that “any person whose wire, oral, or electronic communication is
intercepted, disclosed, or intentionally used in violation of this chapter may in a civil
action recover from the person or entity, other than the United States, which engaged in
that violation.” 18 U.S.C. § 2520(a) (emphasis added). Consequently, there is no need
for extensive jurisdictional analysis in this context.
The plain text of 18 U.S.C. § 2520(a) demonstrates unmistakably that the federal
government has not waived its sovereign immunity to permit a suit for civil damages
under ECPA against itself or its agencies. Meyer, 510 U.S. at 475. In fact, the federal
government has explicitly invoked its sovereign immunity with 18 U.S.C. § 2520(a),
codifying the inability of an individual to seek civil damages against it. See Cooper, 132
S. Ct. at 1448. There is no possible reading of that provision to interpret it as waiving

Page 16 of 19

sovereign immunity or reflecting Congress’s intent to do so.12 As a result, to the extent
the Plaintiff seeks monetary relief against these named Defendants as federal agencies,
this provision represents the intent of Congress not to subject them to civil liability.
Therefore, because she is unable to establish this Court’s subject matter jurisdiction
over the federal Defendants based on ECPA, any claim the Plaintiff may have for civil
damages under the statute must be DISMISSED under Rule 12(b)(1).
III.

Dismissal Based on the Remaining Alternative Grounds
Because dismissal of the Plaintiff’s Complaint is appropriate on jurisdictional

grounds, pursuant to Rule 12(b)(1), this Court will not engage in an analysis of the
merits of the Defendants’ remaining alternative arguments for dismissal. See Record
Documents 3 and 6.
IV.

Claims Against the Federal and State Officials Referenced in the Plaintiff’s
Responses
Finally, the Court notes that the Plaintiff’s Responses direct these same

allegations at additional federal and state officials, asserting that they are also
responsible for violating her rights.13 Nevertheless, even assuming these officials were
12

Moreover, it is obvious given 18 U.S.C. § 2520(a)’s language that the Plaintiff would not be able
to carry her burden of establishing jurisdiction over these federal Defendants even with further briefing.
See Davis, 556 F.3d at 315.
13

According to the Plaintiff’s first Response, the following individuals, who she states are
employed by BAFB, are responsible for violating her rights: Kristen E. Goodwin, Commander of the 2nd
Bomb Wing; Leland Bohannon, Vice Commander of the 2nd Bomb Wing; Arthur L. Wachdorf, Senior
Adviser for Intelligence and Cyber Operations, 24th Air Force, Air Force Space Command; Earl White,
Special Intelligence Adviser to the Space Protection Program; Kenneth A. Williams Jr., a Senior Level
Defense Intelligence executive; Stephen W. Wilson, Commander of the Air Force Global Strike Command;
Betsy S. Witt, Defense Intelligence Senior Leader; and Russell E. Wyler, Member of the Defense
Intelligence Senior Executive Service. Record Document 5, p. 1.
The Response also alleges four others as responsible for violating the Plaintiff’s rights: Stephanie
A. Finley, United States Attorney for the Western District of Louisiana; Peter Marchese, an FBI agent; and

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properly named as defendants, this Court, accepting the well-pled facts as true and
construing the Plaintiff’s Complaint in a light most favorable to her, would dismiss any
claims against these officials because her assertions are merely legal conclusions
framed as factual allegations. See Fed. R. Civ. P. 12(b)(6); Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); In re Great
Lakes Dredge & Dock Co., 624 F.3d 201, 210 (5th Cir. 2010) (citations omitted).
The Plaintiff has failed to draw any factual connection between the alleged
constitutional and statutory violations and the actions of these officials. She does not
state which of these officials conducted the surveillance, who intruded upon her home,
who installed any of the surveillance devices, or any fact to raise the expectation that
further litigation and discovery could possibly reveal illegal conduct on the part of any
these officials. See Twombly, 550 U.S. at 555. Specifically, her pleadings only draw
legal conclusions, stated as factual allegations, to support her claims against these
federal and state officials, such as merely explaining that the “following individuals
violated her civil rights” and then listing those officials without any further factual
connection to her claims. See Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 555).
Such a bare recital of facts, without more, cannot be construed to infer any misconduct
that rises above the speculative level or demonstrates a plausible claim for relief. See
Iqbal, 556 U.S. at 679; Twombly, 550 U.S. at 555.
Accordingly, to the extent that the Plaintiff wishes to pursue claims against these
federal and state officials, those claims must be dismissed.

Captain Tom Madden and Sergeant Willis of Troop G of the Louisiana State Police. Id.

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V.

Conclusion
For the foregoing reasons,
IT IS ORDERED that the Defendants’ Motions To Dismiss [Record Documents 3

and 6] be and are hereby GRANTED.
IT IS FURTHER ORDERED that the Plaintiff’s claims against the Defendants be
DISMISSED WITHOUT PREJUDICE. A judgment consistent with the instant
memorandum ruling shall be issued herewith.
THUS DONE AND SIGNED on this 11th day of February, 2015.

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