Jacobus v. Huerta
Filing
31
MEMORANDUM OPINION AND ORDER denying Plaintiff's 30 Objections and adopting in full Magistrate Judge Eifert's 29 Proposed Findings and Recommendations; granting Defendant Michael Huerta's 25 RENEWED MOTION to dismiss and dismissing Plaintiff's complaint; denying Plaintiff's 18 and 24 PETITIONS for injunction and Plaintiff's 26 PETITION to add a defendant. Signed by Judge Robert C. Chambers on 4/22/2013. (cc: attys; any unrepresented parties) (mkw)
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
HANK JACOBUS,
Plaintiff,
v.
CIVIL ACTION NO. 3:12-02032
MICHAEL HUERTA, FAA Administrator,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff Hank Jacobus’s Objections (ECF No. 30) to the
Magistrate’s Proposed Findings and Recommendations (ECF No. 29). For the reasons stated
below, Plaintiff’s Objections (ECF No. 30) are DENIED, and the Magistrate’s Proposed
Findings and Recommendations (ECF No. 30) are ADOPTED in full. The Court accordingly
GRANTS Defendant Michael Huerta’s renewed motion to dismiss (ECF No. 25), and the Court
hereby DISMISSES Plaintiff’s complaint. The Court also DENIES Plaintiff’s petitions for
injunction (ECF Nos. 18, 24) and Plaintiff’s petition to add a defendant (ECF No. 26).
Statement of Facts
Plaintiff filed his original complaint against Federal Aviation Administration (“FAA”)
official Michael Huerta on June 13, 2012, alleging that Plaintiff was the victim of retaliation,
harassment, defamation, and stalking through a scheme of constant surveillance. ECF No. 2.
Plaintiff claims that on September 12, 2009, he attempted to talk with a local pilot at a small
South Charleston airport, specifically to share safety concerns regarding that pilot’s low banking
near homes. Id. ¶ 22. The pilot became “very angry,” and subsequently Plaintiff “called the local
tower,” presumably to relay the incident with the pilot. Id. ¶ 23. Plaintiff claims that he has
thereafter been subjected to “24/7/365 surveillance” across four states and nine residences. Id. ¶¶
2, 20. The FAA allegedly relies on “false rumors” about Plaintiff being a “threat” to justify the
surveillance. Id. ¶ 2. The surveillance is facilitated by the government sharing his location with
pilots. Id. ¶ 9. Plaintiff claims that pilots intentionally fly exactly over Plaintiff (id. ¶¶ 21, 29),
intentionally “buzz” his roof (id. ¶ 35), and circle over his head (id. ¶ 42); planes are diverted
from their original route to intentionally fly over him (id. ¶ 53); and the surveillance and
harassment is conducted by such aircraft as jet liners, a drone, spy planes, a “bubble” chopper,
and “low flying gas cans.”
Plaintiff thereafter filed a supplemental memorandum, largely repeating or elaborating on
details contained in the original complaint. ECF No. 8. For example, Plaintiff expounds that
drones sometimes fly overhead twelve to fifteen times per hour, and that he encounters police
“exactly” where he goes, approximately ten times per day. Id. at 1, 3. Defendant then filed a
motion to dismiss or for a more definite statement, arguing that: Plaintiff did not present a
plausible claim for relief; he failed to exhaust his administrative remedies; the Court lacked the
jurisdiction to award non-monetary relief to Plaintiff on his tort claims; and Plaintiff’s libel and
slander claims were not within the Federal Tort Claim Act’s (“FTCA”) limited waiver of
sovereign immunity. ECF Nos. 12, 13.
Plaintiff thereafter filed a petition for an injunction, in which he “requests this Court
order Pl.’s name be removed from any and all watch lists and stop the FAA calling on Pl.” ECF
No. 18 at 3. In this petition, he alleged the pilot with whom Plaintiff argued reported Plaintiff as
a “threat” to the FAA. Id. ¶ 1. The FAA accepted these false accusations and Plaintiff’s name
was placed on a watch list. Id. ¶¶ 1, 2. Plaintiff complained about the lack of “due process,” and
2
clarified that he “isn’t suing the FAA for doing the defaming, but for its negligence that caused”
defamation, namely, the FAA telling pilots that Plaintiff poses a threat.1 Id. ¶¶ 8, 17.
Plaintiff filed a “final amendment” a few days later, repeating many of the details found
in previous filings. ECF No. 19. He repeated his request that this Court have his name removed
from the watch list, and “asks the Court to hear his entire case based on major Constitutional
violations, (Bill of Rights) that trump Sovereign Immunity.” Id. at 3. He also stated that he has
“left [the possibility of] money damages open.” Id. ¶ 11. A few weeks later, Plaintiff filed a
memorandum in support of having his name removed. ECF No. 20. He stated that while the
decision to award of monetary damages is in the Court’s discretion, his “main goal is [to get] his
name cleared.” Id. ¶ 4. He also questioned the ability of sovereign immunity to bar his lawsuit,
stating that the doctrine is not mentioned in the Constitution. Id. ¶ 5.
Magistrate Judge Cheryl A. Eifert held an initial status conference on October 5, 2012,
and thereafter entered an order denying Defendant’s request to dismiss, but granting Defendant’s
motion for a more definite statement. ECF No. 22. To this end, Plaintiff was ordered to file an
amended complaint:
Plaintiff shall adopt by reference his prior factual allegations and shall add the
following: (1) the legal theories under which he sues (e.g. violation of the Fourth
Amendment); (2) the names of any additional defendants needed to obtain the
relief he seeks, and (3) a specific description [of] the nature of the relief (e.g.
declaratory judgment, injunctive relief).
Id. at 1.
1
Plaintiff also attempted to draw a parallel between his situation and that of “Afifi.” He does not
provide a citation, but this Court believes he is referring to the case of Afifi v. Holder, No. 1:11cv-00460-BAH (D.D.C. filed Mar. 2, 2011). He suggested that in that case, “[t]he Supreme
Court “bar[r]ed transponders with no warrant for spying.” ECF No. 18 ¶ 7. Mr. Afifi’s case,
however, has not yet been before the Supreme Court. Rather, a motion to dismiss and for
summary judgment appears to be pending in the district court. Based on Plaintiff’s subsequent
filings, this Court believes that the Supreme Court case Plaintiff meant to refer to was United
States v. Jones, 132 S. Ct. 945 (2012).
3
Pursuant to this Order, Plaintiff timely filed an amended complaint, reiterating the many
years of surveillance, his placement on a watch list, and the FAA’s acceptance of lies about him.
ECF No. 23. In regards to legal theories, he claimed that he suffered violations of the Fourth,
Fifth, Ninth, and Fourteenth Amendments, in addition to 18 U.S.C. § 2261. Id. ¶ 1. In support of
his Fourth Amendment claim, he referred to United States v. Jones and Afifi. He also claimed
that “Sovereign Immunity, not in the Constitution, can’t bar Court redress of grave, multiple
Constitutional violations here.” Id. ¶ 12. Plaintiff’s caption on this amended complaint referred to
the adverse party as “Michael Huerta, et. al.” He stated that he is not able to sue TSA2 or the
pilot with whom he argued, and he “shouldn’t sue police.” He also alleged that “multiple FAA
staff have punished Pl.,” including “the high altitude control boss([e]s) who diverted and directed
commercial jets over Pl’s locations.” Id. ¶ 24.
In regards to relief, he stated that his “goal has been to clear his name,” and that monetary
damages are in the Court’s discretion. Id. ¶ 28.3 He also requested “the Court to order the FAA
(or TSA) to notify him if it has removed him from the watch list,” and to “show why and how Pl.
was put on the list, why he’s was [sic] not ever questioned and why local police are barred from
questioning Pl. now.” Id. ¶¶ 30, 31. He additionally requested that the Court “order the FAA to
cease notifying small plane pilots of his whereabouts and to notify all [of them that] the way Pl.
was labeled was so badly flawed, [and that] it can’t be said or inferred he threatened anyone.” Id.
¶ 32. He also requested certain TSA records. Id. ¶ 50.
Plaintiff thereafter filed a second petition for an injunction, requesting that “until the
2
Plaintiff incorrectly refers to TSA as “Terrorists Screening Agency,” id. ¶ 6, when in actuality
this acronym stands for Transportation Security Administration.
3
It appears that Plaintiff may have omitted filing a page of his amended complaint, as page three
ends with ¶ 34, and page four begins with ¶ 48.
4
FAA can give proof Pl. threatened anyone, it be ordered to stop notifying small plane pilots of
Pl’s locations.” ECF No. 24 ¶ 11. This petition’s caption lists the defendants as “Michael Huerta,
& Security Dir., East Reg. (name unknown) et. al.”4
Defendant filed a renewed motion to dismiss on November 15, 2012, requesting
dismissal of the amended complaint under Rule 8 of the Federal Rules of Civil Procedure on the
grounds that it “does not provide the jurisdictional statement, a short and plain statement of his
claims showing he is entitled to relief, or a clarification of the relief he seeks.” ECF No. 25.
Plaintiff never filed a response to this renewed motion to dismiss. On November 26, 2012,
however, Plaintiff filed a petition seeking to add a defendant, specifically “the high altitude
control center boss in the Indianapolis radar center,” who is “in charge of routing all high altitude
air craft through Wv.” ECF No. 26. Plaintiff stated that he cannot obtain this individual’s name.
Plaintiff filed a “Memorandum- TSA Update” in December 2012, stating that Plaintiff
remains under surveillance, in violation of his Constitutional rights. ECF No. 27. He filed
another “update” in February 2013, alleging that the surveillance continues without a warrant,
includes “looking in Pl’s barn.” ECF No. 28. Furthermore, police intentionally drove toward
Plaintiff in a distressing manner near the courthouse immediately following the October 2012
status conference.
Magistrate Judge Eifert issued Proposed Findings and Recommendations (“PF&R”)
recommending that Plaintiff’s petitions for injunctions and to add a defendant be denied, and that
the original complaint and amended complaint be dismissed with prejudice. ECF No. 29, Feb.
22, 2013. In summary, Judge Eifert found that Plaintiff failed to state a claim for which relief
could be granted, noting that his claims were implausible and based on misunderstandings about
4
This caption is repeated in documents 26, 27, 28, and 30.
5
the FAA and the watch list, and that Plaintiff did not create plausible links between his argument
with the pilot, perceived flyovers, and the alleged surveillance and perpetuations of lies about
Plaintiff. Furthermore, Plaintiff’s claims for monetary damages would fail, he lacked a private
right of action for stalking, he could not succeed on his request to be removed from the list given
the FAA’s lack of control over the list, and no Constitutional violation had been shown.
Plaintiff timely filed Objections to the PF&R. ECF No. 30. He stated there is a sufficient
“factual basis” for his claims, as a sheriff told him he is targeted and a “Cabell County official
verified it when Pl. said it got a Homeland Security grant soon after Pl. moved back, (part used
just for him).” Id. ¶¶ 1, 2. He referred to a recent Supreme Court case that allegedly implicates
sovereign immunity, but does not provide a case name or citation.5 He additionally stated that
“FAA Security is solely responsible” for his injuries, and that he has “met the goal of SF-95,”
which “no citizen would know to file.” The Objections, like his other filings, reiterate the nature
of the surveillance against him and the FAA’s role. In closing, he noted that he does not have a
lawyer, and that “he merits the same future chance with a Lawyer” as other individuals, given the
gravity of these Constitutional violations.
In Section I, the Court discusses the standard of review applicable to the PF&R, the basis
for liberal interpretation of pro se filings, and the standard for pleading plausible claims under
the Federal Rules of Civil Procedure. In Section II, the Court reviews whether Plaintiff presents a
plausible claim for which relief can be granted. In Section III, the Court addresses other grounds
for dismissing the complaint in addition to implausibility. Lastly, in Section IV, the Court
examines Plaintiff’s petition to add a defendant to this case and his petitions for injunctions.
5
Plaintiff referred to a February 18, 2013 Supreme Court case involving a pro se prisoner’s
allegations that he was raped. This Court is unable to determine which case this is.
6
I.
Standard of Review
This Court’s review of the magistrate’s proposed findings and recommendations to which
Petitioner objects is de novo. 28 U.S.C. § 636(b)(1)(C) (“A judge of the court shall make a de
novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made. A judge of the court may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the magistrate judge.”). Therefore,
this Court will review de novo the magistrate’s determination that Plaintiff’s motions for
injunctive relief and to add a defendant should be dismissed, and that Plaintiff’s complaint
should be dismissed.
Although Plaintiff’s Objections lack ideal clarity in specifying his protests to the PF&R,
that difficulty is not fatal to his Objections. This is because pro se filings must be construed
liberally, and “a pro se complaint, however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). In construing pro se filing liberally,
however, the court must be careful not to “rewrite a petition to include claims that were never
presented.” Parker v. Champion, 148 F.3d 1219, 1222 (10th Cir. 1998). Neither are courts
required to “conjure up questions never squarely presented to them” or “construct full blown
claims from sentence fragments.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir.
1985).
The importance of liberally construing Plaintiff’s pro se pleadings must be interpreted in
conjunction with the pleading standards under the Federal Rules of Civil Procedure. In Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the United States Supreme Court disavowed the
“no set of facts” language found in Conley v. Gibson, 355 U.S. 41 (1957), which was long used
7
to evaluate complaints subject to 12(b)(6) motions. 550 U.S. at 563. In its place, courts must now
look for “plausibility” in the complaint. This standard requires a plaintiff to set forth the
“grounds” for an “entitle[ment] to relief” that is more than mere “labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Id. at 555 (internal
quotation marks and citations omitted). Accepting the factual allegations in the complaint as true
(even when doubtful), the allegations “must be enough to raise a right to relief above the
speculative level . . . .” Id. (citations omitted). If the allegations in the complaint, assuming their
truth, do “not raise a claim of entitlement to relief, this basic deficiency should . . . be exposed at
the point of minimum expenditure of time and money by the parties and the court.” Id. at 558
(internal quotation marks and citations omitted).
In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court explained the requirements
of Rule 8 and the “plausibility standard” in more detail. In Iqbal, the Supreme Court reiterated
that Rule 8 does not demand “detailed factual allegations[.]” 556 U.S. at 678 (internal quotation
marks and citations omitted). However, a mere “unadorned, the-defendant-unlawfully-harmedme accusation” is insufficient. Id. “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility exists when a claim contains “factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citation omitted). The Supreme Court continued by explaining that,
although factual allegations in a complaint must be accepted as true for purposes of a motion to
dismiss, this tenet does not apply to legal conclusions. Id. “Threadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citation
omitted). Whether a plausible claim is stated in a complaint requires a court to conduct a context-
8
specific analysis, drawing upon the court’s own judicial experience and common sense. Id. at
679. If the court finds from its analysis that “the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged-but it has not
‘show[n]’-‘that the pleader is entitled to relief.’” Id. (quoting, in part, Fed. R. Civ. P. 8(a)(2)).
The Supreme Court further articulated that “a court considering a motion to dismiss can choose
to begin by identifying pleadings that, because they are no more than conclusions, are not
entitled to the assumption of truth. While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.” Id.
II.
Plausibility Analysis
A. Plausibility of Surveillance
After conducting a de novo review of the pleadings, this Court finds that Plaintiff’s
complaint6 should be dismissed for failure to state a claim for which relief may be granted, based
on the implausibility of the claims presented. The causal chain that Plaintiff presents is riddled
with too many holes and unsubstantiated conclusions to find that the complaint satisfies the
pleading standard presented in Rule 8 and detailed in Twombly and Iqbal, even when construing
his pro se filings liberally and taking the factual allegations in the complaint as true.
The Court, in arriving at this decision, has accepted as true Plaintiff’s allegation that he
argued with an unnamed pilot at a small airport in South Charleston in September 2009. It also
accepts as true his allegations that aircraft thereafter “buzzed” his home and fly over or near him
repeatedly, and he constantly sees police in his proximity. Plaintiff also, however, presents many
6
Plaintiff filed an original complaint, ECF No. 2, and an amended complaint, ECF No. 23. For
the sake of clarity, and because the amended complaint is meant to elaborate on the original
complaint rather than merely replace it, the Court will refer to both documents collectively as
“the complaint.” Additionally, the Court’s analysis here includes consideration of Plaintiff’s
supplemental memoranda as discussed in the Statement of Facts.
9
unsupported conclusions which the Court need not accept as true, namely that: the FAA is aware
of Plaintiff’s location at all times; the FAA tells pilots Plaintiff’s locations and that Plaintiff is a
threat; aircraft are directed to fly over Plaintiff; and Plaintiff’s name was placed on the terrorist
watch list at the direction of the FAA. Plaintiff does not explain how his exact location is
monitored with such precision that aircraft appear overhead within minutes of his arrival. He
does not specify any FAA employees involved in the plot against him, other than the unnamed
control power boss. Also, he has not amended his complaint to include anyone outside the FAA.
Plaintiff attempts to bolster the “factual basis” for his claims by noting in his Objections
that a sheriff told him he has been targeted. That claim, however, is inconsistent with Plaintiff’s
repeated assertions elsewhere that police—although constantly in his vicinity—avoid direct
contact with him. Furthermore, Plaintiff states in his Objections that “[a] Cabell County official
verified [the targeting scheme] when Pl. said it got a Homeland Security grant soon after Pl.
moved back, (part used just for him).” In neither instance does he mention these individuals by
name. Even accepting these statements as true, there is an insufficient factual basis to “raise a
right to relief above the speculative level,” given the overwhelming lack of plausibility found in
the complaint.
The FAA is focused on airline safety and efficiency.7 The FAA’s Internal Security office
“ensures this agency complies with public laws, national directives, and Department of
Transportation policies that influence our security practices” and “creates an FAA environment
7
FAA, Mission (Apr. 23, 2010), http://www.faa.gov/about/mission/ (“Our continuing mission is
to provide the safest, most efficient aerospace system in the world.”). The Court notes that it may
take judicial notice of and rely on information not included in the pleadings but which can be
found via government websites, reports, etc. See United States v. Chester, 628 F.3d 673, 692 (4th
Cir. 2010); Ibrahim v. Dep’t of Homeland Sec., 669 F.3d 983, 990 (9th Cir. 2012).
10
that reduces the risks posed by” criminal activity.8 Also, the FAA’s Office of Emergency
Operations, Communications and Investigations “does investigate airmen, employee, or
contractor employee involvement in criminal activity as it applies to employment or
certification.”9 However, that Office “refer[s] all criminal investigations to the Department of
Transportation, Office of Inspector General or the Federal Bureau of Investigation,” and does not
conduct its own criminal investigations.10 The FAA’s limited security functions thus do not
encompass the sort of surveillance that Plaintiff accuses the FAA of having committed. This
understanding of the FAA’s role is confirmed by examination of the functions of the
Transportation Security Administration (“TSA”), now part of the Department of Homeland
Security (“DHS”), which assumed the FAA’s former security responsibilities over a decade
ago.11 Therefore, it appears highly improbable that the FAA has engaged in aerial surveillance of
Plaintiff.
The FAA does control air traffic, including by organizing the routes of aircraft
throughout the country.12 However, the Agency is focused on efficiency, safety, and minimizing
8
FAA, Office of Security (May 23, 2011), http://www.faa.gov/about/office_org/headquarters_
offices/ash/ash_programs/security/.
9
FAA, Office of Emergency Operations, Communications and Investigations (July 28, 2009),
http://www.faa.gov/about/office_org/headquarters_offices/ash/ash_programs/investigations/.
10
Id.
11
FAA, The Federal Aviation Administration: A Historical Perspective, 1903-2008, 129 (2008),
http://www.faa.gov/about/history/historical_perspective/media/historical_perspective_ch9.pdf
(“FAA remained responsible for aviation security until February 13, 2002, when TSA took over
those responsibilities.”).
12
FAA, Air Traffic (Sept. 21, 2009), http://www.faa.gov/air_traffic/briefing/.
11
the negative effects of aviation on civilians.13 Keeping in mind these goals and the myriad factors
that determine flight plans—outside of any potential vendettas again a private individual—it
appears implausible that planes are being intentionally routed over Plaintiff, let alone for the
purpose of harassing and conducting surveillance on him.
Based on the above discussion, this Court finds that Plaintiff’s allegations are the sort of
“delusional,” “fantastic,” and “fanciful” claims that warrant dismissal. Denton v. Hernandez, 504
U.S. 25, 32-33 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 325, 327-28 (1989)).
Plaintiff’s case bears a striking resemblance to Tooley v. Napolitano, 586 F.3d 1006 (D.C. Cir.
2009), where the plaintiff complained to a commercial airlines representative about the need for
stricter screening of airline luggage, and the government allegedly engaged in years of
surveillance targeting the plaintiff, including ordering wiretaps on nine phones, having police
wait outside his house, and placing a tracking device on his car. Also like the present case, that
plaintiff alleged that the surveillance scheme was readily apparent,14 and the scheme alleged
defied current limits of technology. Tooley, 586 F.3d at 1009. The Court of Appeals affirmed
dismissal of the complaint, characterizing the claims as “flimsier than doubtful or questionable- .
. . essentially fictitious.” Id. (internal quotation marks and citation omitted). Like the complaint
in Tooley, Plaintiff’s complaint should be dismissed based on its utter implausibility regarding
the scheme of surveillance.
13
FAA, Safety: The Foundation of Everything We Do (Feb. 1, 2013),
http://www.faa.gov/about/safety_efficiency/ (“Under the broad umbrella of safety and efficiency,
we have several major roles: [including] . . . Developing and operating a system of air traffic
control and navigation for both civil and military aircraft[; and] . . . Developing and carrying out
programs to control aircraft noise and other environmental effects of civil aviation”).
14
See, e.g., ECF No. 28 ¶ 1 (stating that the surveillance is “made very obvious.”)
12
B. Plausibility of Inclusion on Terrorist Watch List
Plaintiff’s claims about the FAA’s involvement with the terrorist watch list and FAA’s
alleged actions in adding him to the list are also highly implausible, based on how the watch list
works. A single consolidated terrorist watch list has existed since 2003, and is under the control
of the Federal Bureau of Investigation’s (“FBI”) Terrorist Screening Center (“TSC”).15 This
watch list, also known as the Terrorist Screening Database (“TSDB”), includes “only individuals
who are known or reasonably suspected to be or have been engaged in conduct constituting, in
preparation for, in aid of, or related to terrorism.”16 TSDB data comes from either the Terrorist
Identities Datamart Environment (for information about international terrorism) or FBI’s
Automated Case Support system (for information about domestic terrorism).17 TIDE information
is populated as follows:
The NCTC [“National Counterterrorism Center”] receives information through
nominations made by federal agencies. It is not necessary for an agency to be a
member of the [Intelligence Community] to make nominations. Nomination
information is placed in the NCTC central repository system, the Terrorist
Identities Datamart Environment (TIDE).18
15
FBI, Terrorist Screening Center, http://www.fbi.gov/about-us/nsb/tsc (last visited Apr. 17,
2013). This consolidation occurred pursuant to Homeland Security Presidential Directive 6,
signed September 16, 2003. Compilation of Homeland Security Presidential Directives, U.S.
Gov’t Printing Office, Jan. 2008, 31-32.
16
FBI, Frequently Asked Questions- Terrorist Screening Center, http://www.fbi.gov/aboutus/nsb/tsc/tsc_faqs (last visited Apr. 17, 2013).
17
DHS, Office of the Inspector General, DHS’ Role in Nominating Individuals for Inclusion on
the Government Watchlist and Its Efforts to Support Watchlist Maintenance, OIG-11-107, at 9
(Sept. 2011).
18
DHS, Office of the Inspector General, The DHS Process for Nominating Individuals to the
Consolidated Terrorist Watchlist, OIG-08-29, at 2 (Feb. 2008) (hereinafter “OIG-08-29”). See
also Dep’t of Justice, Office of the Inspector General, Audit Division, Follow-up Audit of the
Terrorist Screening Center, Audit Report 07-41, at 3 (Sept. 2007) (“When a law enforcement or
intelligence agency has identified an individual as a potential terrorist threat to the United States
and wants that individual watchlisted, the source agency must nominate that person for inclusion
13
Although any federal agency in theory can nominate an individual to be included on the watch
list, over ninety-five percent of nominations are made by the Department of State, the FBI, the
Defense Intelligence Agency, and the Central Intelligence Agency.19
In contrast to those other federal agencies, the FAA’s role in the watch list appears to be
extremely limited:
TSA collaborates with the Federal Aviation Administration to vet information
related to terrorism and aviation records. When Federal Aviation Administration
staff identifies information about known or suspected terrorists with pilot licenses,
they notify the TSA. TSA staff we interviewed stated the information is important
to the watchlist but, other than notifying the TIDE system record holder, it does
not receive feedback on whether the NCTC includes it in current nominations. 20
This suggests that the FAA’s involvement with the watch list is limited to suspicious individuals
who have pilot licenses, a category into which Plaintiff does not fall. This Court has found no
indication that the FAA in actuality nominates individuals, especially those without pilot
licenses, for inclusion on the terrorist watch list.
Furthermore, even if an individual is nominated, that person is not necessarily included in
the watchlist:
All nominations from source agencies to the consolidated watchlist are vetted
through the FBI or the National Counterterrorism Center (NCTC). Analysts at
NCTC or the FBI review the nomination information and decide whether or not
the person is an appropriate candidate for inclusion on the consolidated watchlist.
This review includes an evaluation of the information supporting the nomination,
an examination of the quality and accuracy of the identifying information, and an
in the consolidated watchlist maintained by the TSC.”) (hereinafter “DOJ Audit”).
19
OIG-08-29, at 3.
20
Id. at 9. See also FBI, Vision & Mission- Terrorist Screening Center,
http://www.fbi.gov/about-us/nsb/tsc/tsc_mission (last visited Apr. 17, 2013) (“The TSC only
receives information collected by other government entities with pre-existing legal authority to
do so. Each agency that contributes data to the TSC must comply with the law as well as its own
policies and procedures to protect privacy rights and civil liberties.”).
14
examination of whether sufficient identifying information is available. The FBI
and NCTC are responsible for providing the TSC an unclassified subset of
identifying information for individuals known or suspected to be or have been
involved in activities related to terrorism.21
The TSC does have an emergency nomination process, but even under this system the individual is
vetted following their “emergency” addition to the watch list.22
The chances of the FAA nominating any person to the list is extremely small, and the chances of
the FAA nominating an individual without a pilot license, such as Plaintiff, is even smaller. Plaintiff
claims that he was included on the watch list without proper investigation. Based on the information
above, however, even if the FAA did nominate Plaintiff for inclusion on the watch list—which itself is
highly unlikely—Plaintiff would: a) in the case of a non-emergency nomination, only be placed on the
watch list after an investigation, or b) in the case of an emergency nomination, be investigated
subsequently to ensure that continued inclusion on the list is proper. Also, Plaintiff’s argument with a
small plane pilot would itself be insufficient to justify his inclusion on the watch list for suspected
terrorist activity.
The watchlist acts as a database that agencies use to screen individuals trying to engage
in certain activities:
By supporting the ability of front-line screening agencies to positively identify
known or suspected terrorists trying to obtain visas, enter the country, board
aircraft, or engage in other activity, the consolidated Terrorist Watchlist is one of
the most effective counterterrorism tools for the U.S. government.23
21
DOJ Audit at 3 (footnotes omitted).
22
Id. at 3 n.24.
23
FBI, Vision & Mission- Terrorist Screening Center, http://www.fbi.gov/aboutus/nsb/tsc/tsc_mission (last visited Apr. 17, 2013) (additionally stating that the watch list
“contains thousands of records that are updated daily and shared with federal, state, local,
territorial, tribal law enforcement, and Intelligence Community members as well as international
partners to ensure that individuals with links to terrorism are appropriately screened.” (emphasis
added)).
15
A variety of encounters with government officials can trigger this screening:
The TSC shares the terrorist information contained in its Terrorist Screening
Database (TSDB) by exporting or sending data “downstream” to other screening
systems, such as the State Department’s Consular Lookout and Support System
(CLASS), DHS’s Interagency Border Inspection System (IBIS), the
Transportation Security Administration’s (TSA) No Fly list, the FBI’s Violent
Gang and Terrorist Organization File (VGTOF) within its National Crime
Information Center (NCIC) system, and others. Watchlist information is then
available for use by U.S. law enforcement and intelligence officials across the
country and around the world.24
The No Fly list is used to screen for individuals who are prohibited from flying on aircraft, while
the Selectee list is used to screen for individuals requiring additional screening before boarding.25
None of the events described by Plaintiff in his pleadings indicate that his name is
included on the watch list. Other than his conversation with the sheriff, Plaintiff mentions no
encounters with law enforcement that would trigger a search of his name within the TSDB.
Plaintiff was not denied entry onto a plane, and has not experienced enhanced airport security
screening. Plaintiff does not mention any attempt to pass through a U.S. border or attain a visa or
passport. Based on the articulated uses of the watch list, it does not appear that the watch list is
used to conduct the sort of general surveillance that Plaintiff alleges. In summary, Plaintiff has
not stated a plausible claim concerning his inclusion on the terrorist watch list. It is not only
implausible that the FAA would hypothetically nominate him for inclusion on the list, but also
implausible that he would be included on the list after investigation when his only reason for
inclusion is his argument with a small plane pilot. Furthermore, none of the incidents described
by Plaintiff are indicative of inclusion on the watch list, given the way in which information on
24
DOJ Audit at 4 (footnote omitted).
25
Id. at 68.
16
that list is typically used.
Taken together, Plaintiff’s claims regarding surveillance and inclusion on the watch list
are implausible, and this provides sufficient grounds for dismissal on his complaint. Regardless,
this Court will explore additional grounds for dismissal.
III.
Failure of Complaint on Other Grounds
A. Federal Tort Claims Act claim
Even if Plaintiff’s complaint did not fail for implausibility, his claim for relief under the
FTCA would nonetheless be dismissed. A limited waiver of sovereign immunity26 is found in the
FTCA, under which an individual can pursue relief from the United States for certain claims
sounding in tort:
[T]he district courts . . . shall have exclusive jurisdiction of civil actions on claims
against the United States, for money damages, accruing on and after January 1,
1945, for injury or loss of property, or personal injury or death caused by the
negligent or wrongful act or omission of any employee of the Government while
acting within the scope of his office or employment, under circumstances where
the United States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission occurred.
28 U.S.C. § 1346(b)(1). As a pre-requisite to filing the lawsuit, however, “the claimant shall
have first presented the claim to the appropriate Federal agency and his claim shall have been
finally denied by the agency in writing and sent by certified or registered mail.” 28 U.S.C. §
2675(a). Presentation occurs “when a Federal agency receives from a claimant, his duly
authorized agent or legal representative, an executed Standard Form 95 or other written
notification of an incident, accompanied [in part] by a claim for money damages in a sum certain
for injury to or loss of property, personal injury, or death alleged to have occurred by reason of
26
Plaintiff argues that “Sovereign Immunity, not in the Constitution, can’t bar Court redress of
grave, multiple Constitutional violations here.” ECF No. 23 ¶ 12. This Court notes that the
doctrine of sovereign immunity is well-accepted, regardless of the fact that it is not in the
Constitution.
17
the incident.” 28 C.F.R. § 14.2(a). This requirement cannot be waived, and if it is not satisfied,
then the claim fails for lack of jurisdiction. Henderson v. United States, 785 F.2d 121, 123 (4th
Cir. 1986) (citing Kielwien v. United States, 540 F.2d 676, 679 (4th Cir. 1976)).
Plaintiff cannot satisfy the pre-requisite of having properly presented his claim to a
federal agency before filing suit. Plaintiff admits that he has not submitted Standard Form 95 to
the FAA. Although Plaintiff claims to have called and emailed the FAA over the past three years,
this does not suffice as a “written notification of an incident.” See Reisman v. Bullard, 14 Fed.
App’x 377, 379 (6th Cir. 2001) (citations omitted) (“Although it is undisputed that the Reismans
made many informal inquiries to the IRS and communicated their displeasure over the agency’s
audit of their income tax return, they did not establish that they ever filed a proper FTCA claim
with the IRS or that such a claim was denied by the agency.”). This provides sufficient
independent grounds for dismissing any claims under the FTCA.
B. Failure of Possible Bivens Claim
Plaintiff has not explicitly asserted a Bivens claim27 under this complaint. Even if this
Court properly inferred such a cause of action, in line with the Court’s mandate to construe pro
se filings liberally, any possible Bivens claim would ultimately fail. Bivens claims must be
asserted against federal employees in their individual capacity, which Plaintiff does. See
Reinbold v. Evers, 187 F.3d 348, 355 n.7 (4th Cir. 1999). His claim nonetheless fails, however,
because he has not sufficiently alleged violations of his Constitutional rights. He claims in his
amended complaint that he has suffered violations of the Fifth, Ninth, and Fourteenth
Amendments, but this court finds that he has not made a prima facie showing of a violation of
27
Through a Bivens claim, a petitioner may collect monetary damages for injuries caused by
federal officials or employees which violate certain portions of the Constitution. See Bivens v.
Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
18
any of these Amendments.
He also claims he has suffered violation of his Fourth Amendment rights, and supports
this claim by pointing to United States v. Jones, 132 S. Ct. 945 (2012), and Afifi v. Holder, No.
1:11-cv-00460-BAH (D.D.C. filed Mar. 2, 2011). These cases, however, do not support
Plaintiff’s claim. Afifi is still subject to a pending motion to dismiss and for summary judgment,
and involves the placement of a GPS tracking device on a car. Jones tackled the legal question of
whether the use of a GPS tracking device on a car to monitor its movements was a search under
the Fourth Amendment, and even suggests in dicta that aerial surveillance poses no constitutional
violation. See Jones, 132 S. Ct. 953 (citing Kyllo v. United States, 533 U.S. 27, 31-32 (2001))
(“This Court has to date not deviated from the understanding that mere visual observation does
not constitute a search.”). Plaintiff points to no other cases in support of his contention that he
has suffered a Constitutional violation due to the alleged surveillance, and the Court will not
probe further into the legal basis for any such arguments.28
C. Failure of 18 U.S.C. § 2261A Claim
Plaintiff repeatedly cites the prohibition of “stalking” found in 18 U.S.C. § 2261; that
provision, however, addresses interstate domestic violence, and is therefore not applicable to this
lawsuit. This Court believes that Plaintiff instead meant to cite 18 U.S.C. § 2261A, which
prohibits stalking. That provision is a criminal statute, and criminal statutes typically do not
include a private right of action. In such an instance, the court must decide “whether Congress
intended to create the private right of action,” and that “analysis must begin with the language of
the statute itself.” Touche Ross & Co. v. Redington, 442 U.S. 560, 568 (1979) (citations omitted).
28
Plaintiff additionally argues that “barring him from suing the Gov., while others may, [such as]
whistleblowers, minorities, etc., deprives him of equal protection of the Constitution.” ECF No.
23 ¶ 13. The Court finds this assertion to be without merit, and Plaintiff has not sufficiently
alleged any sort of equal protection violation.
19
In regards to language, the statute does not on its face provide a private right of action for
Plaintiff to sue for relief. Although legislative history can also be considered, see id. at 571,
given the implausibility of the stalking claim, it is unnecessary to engage in further analysis.
D. Inability to Have FAA Remove Him From the List
Plaintiff asks that the Court order the FAA to remove his name from the watch list. Aside
from the implausibility of Plaintiff’s underlying claim, the Court cannot order the FAA to
remove his name from the list because, practically speaking, the FAA’s only involvement with
population of the list is to potentially nominate individuals for inclusion. The FAA does not
ultimately select who is on the list, and does not control who is removed from the list.
In fact, the website for the Terrorist Screening Center includes a section on “Redress
Procedures” for individuals who have been subject to screening activities that lead them to
believe they are wrongfully on the list.29 As explained on the website, although “[t]he TSC does
not accept redress inquiries directly from the public,” individuals “should contact the relevant
screening agency with their questions or concerns about screening.” The FAA does not
customarily use the list the screen individuals, however, and so there would be no need for an
individual to contact the FAA concerning redress. Furthermore, the TSC is the only organization
able to remove an individual from the list. The inability to attain relief here mirrors that in Latif
v. Holder, where the plaintiffs argued for their removal from the watchlist:
Here, Plaintiffs demand to know why they are apparently included on the List and
an opportunity to advocate for their removal. Ordering TSA to tell Plaintiffs why
they were included on the List and to consider their responses in deciding whether
they should remain on it, would be futile. Such relief must come from TSC—the
sole entity with both the classified intelligence information Plaintiffs want and the
authority to remove them from the List.
29
FBI, Redress Procedures- Terrorist Screening
us/nsb/tsc/tsc_redress (last visited Apr. 17, 2013).
20
Agency,
http://www.fbi.gov/about-
686 F.3d 1122, 1129 (9th Cir. 2012). The FAA has no power to remove an individual from the
list, and so the Court would not be able to grant this relief.
Therefore, in summary, there are sufficient grounds for dismissing Plaintiff’s complaint
apart from the underlying implausibility of his claims.
IV.
Denial of Other Petitions
A. Petition to Add Defendant
Plaintiff filed a petition seeking to add a defendant to the case, specifically “the high
altitude control center boss in the Indianapolis radar center,” who is “in charge of routing all high
altitude air craft through Wv.” ECF No. 26. Plaintiff states that he cannot obtain this individual’s
name. Plaintiff could not succeed in an FTCA claim against this unnamed individual because
Plaintiff has not followed the pre-requisites for bringing an FTCA action, as discussed
previously. Also for the same reasons previously stated, Plaintiff could not succeed on a Bivens
claim against this individual or bring a criminal stalking action against him. Furthermore, given
the underlying implausibility of the claims alleged, any claim against this control tower boss as
part of this complaint would not succeed. Therefore, the Court denies this petition.
B. Petitions for Injunction
Plaintiff filed a petition in which he “requests this Court order Pl.’s name be removed
from any and all watch lists and stop the FAA calling on Pl.” ECF No. 18 at 3. As explained
above, this Court cannot order the FAA to remove Plaintiff’s name from the watch list. Also,
assuming that “calling on Pl.” refers to conducting surveillance and sharing information about
Plaintiffs’ whereabouts, the Court also will not order this relief, as the underlying claims
surrounding the surveillance are implausible. Therefore, this petition for injunctive relief is
denied.
21
Plaintiff filed a second petition for an injunction, requesting that “until the FAA can give
proof Pl. threatened anyone, it be ordered to stop notifying small plane pilots of Pl’s locations.”
ECF No. 24 ¶ 11. Because Plaintiffs’ claims that the FAA has told other pilot’s about Plaintiff’s
whereabouts is implausible, the Court also denies this petition for injunctive relief.
Conclusion
For the reasons stated above, Plaintiff’s Objections (ECF No. 30) are DENIED, and the
Magistrate’s Proposed Findings and Recommendations (ECF No. 30) are ADOPTED in full.
The Court accordingly GRANTS Defendant Michael Huerta’s renewed motion to dismiss (ECF
No. 25), and the Court hereby DISMISSES Plaintiff’s complaint. The Court also DENIES
Plaintiff’s petitions for injunction (ECF Nos. 18, 24) and Plaintiff’s petition to add a defendant
(ECF No. 26).
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented parties.
ENTER:
22
April 22, 2013
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