I’m grateful to the privacy, civil rights and whistleblower advocates who are assisting this landmark case through the Attkisson 4th Amendment Litigation Fund. Since the Justice Department will not hold its own accountable for the forensically-proven government computer intrusions, the only option is a self-funded, uphill battle in civil court.

Below is the newly-filed petition asking for a full Appellate panel hearing of the case.

INTRODUCTION

This case strikes at the heart of American democracy itself.  Sharyl Attkisson, a veteran award-winning journalist, JA121-22, alleges that federal officials hacked into her family’s computer systems without a warrant shortly after Attkisson produced news stories for CBS that relied on confidential government informants.  Significantly, this is no mere speculative allegation.  The Complaint—the facts of which must be taken as true at this stage of litigation—provides twenty-four pages of factual allegations, including allegations based on reports of expert computer forensic analysts, establishing both that her computer systems were in fact infiltrated and that the infiltration derived from government-controlled IP addresses.  JA 130-34.  Accordingly, just as in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), Attkisson sues government officials who, she contends, conducted illegal searches in violation of the Fourth Amendment as well as the Electronic Communications Privacy Act (“ECPA”), see 18 U.S.C. § 2511(1)(a) (2018). 

As in Bivens, Attkisson cannot yet identify the names of all the agents involved because that information is uniquely held by the Government.  Thus, again as in Bivens, she needs discovery to identify the individual defendants.  However, over four years of litigation, the Government has repeatedly stonewalled.  First, the Government has refused even to accept service of process for the unidentified agents, amazingly using a Kafkaesque and circular argument that service is not possible until the Attkissons have actually identified the defendants, which of course they have no way of doing without discovery.  Second, the Government has continually refused to turn over any documents or allow any depositions designed to help determine the identity of those agents.  Third, to the extent that the Attkissons have identified two agency heads—defendants Holder and Donahoe—who plausibly were involved in ordering the illegal intrusions, the Government has asserted numerous legal impediments to the claims against those individuals.  

In short, the Government argues that the federal officials who are named cannot be sued and the officials who are unnamed cannot be served with process, and no discovery is possible with regard to any of them, even if only to identify the unnamed officials.  Such government obstruction cannot be rewarded.  Yet, the panel’s Decision—with one judge dissenting in principal part—effectively blessed the Government’s intransigence, providing a playbook for the Government to escape accountability in future cases.    

The Decision is contrary to both Circuit and Supreme Court precedent in multiple respects.  Further, the Decision will make it nearly impossible, as a practical matter, for any plaintiff to bring suit for unlawful government surveillance because, by the very nature of such surveillance, the plaintiff will rarely if ever be able to identify the individual wrongdoers without access to adequate discovery.  

These errors, as well as the significance of the case, require panel rehearing or en banc reconsideration.

SUMMARY OF ARGUMENT

The panel’s Decision is wrong for three principal reasons.

First, the panel wrongly held that the Attkissons’ Fourth Amendment Bivens claim against Defendants Holder and Donahoe is not cognizable.  The Supreme Court’s decision in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), emphatically reaffirmed that Bivens and cases like it remain good law and that complaints raising individual Bivens-like claims for monetary damages remain permissible.  And although Ziglar refused to extend Bivens to new contexts, none of the concerns animating Ziglar is present here.  Therefore, the panel’s Decision wrongly interprets Ziglar and eviscerates Bivens, while conflicting with at least one other circuit.   

Second, also with regard to Holder and Donahoe, the panel unjustifiably—and probably unintentionally—expanded the qualified immunity doctrine by invoking it to avoid ruling on a disputed statutory provision in the ECPA.  However, because the disputed provision only addressed the remedy for wrongdoing and not the wrongfulness of the underlying act itself, qualified immunity is inappropriate.  Thus, the Decision, if allowed to stand, will improperly extend qualified immunity to a whole new category of cases, even when defendants violate clearly established law.

Third, as to the unnamed John Does, the panel majority affirmed the District Court’s dismissal on grounds neither mentioned in the opinion below nor in any of the briefs filed on appeal.  According to the majority, the claims against the John Does, though legally cognizable, were nevertheless properly dismissed under FRCP 41(b) and 4(m) because the Attkissons failed to identify the John Does during the brief three-week window for discovery provided by the District Court and have therefore also failed to serve them with process.  Yet, in a case alleging unlawful government surveillance, information regarding the identity of the John Does is uniquely held by the Government.  Moreover, despite multiple discovery requests over four years of litigation, the Government has never produced a single document nor allowed a single deposition focused on identifying the John Does.  Thus, it is a cruel joke for the majority to invoke Rules 41(b) and 4(m), blame the Attkissons for failure to identify the John Does, and take the draconian step of dismissing the entire case.  In addition, the majority opinion conflicts with Circuit precedent requiring a four-factor analysis before dismissing under Rule 41(b) and permitting dismissal for failure to identify a John Doe defendant only when that defendant cannot be identified through discovery.

ARGUMENT

1. The Dismissal Of The Bivens Claims Against Holder And Donahoe Improperly Interprets Supreme Court Precedent And Conflicts With Decisions Of Other Courts.

The Attkissons’ Fourth Amendment claim is simply Bivens for the digital age.  The Bivens complaint alleged that a group of unidentified FBI agents, acting under claim of federal authority, entered an apartment and conducted a warrantless search without probable cause.  Similarly, the Attkissons contend that a group of federal agents, likewise acting under federal authority, entered their computer systems through electronic means and conducted warrantless surveillance.  

The panel interpreted the Supreme Court’s decision in Ziglar to block such a claim against defendants Holder and Donahoe.  However, the panel misreads Ziglar.

Ziglar emphatically reaffirmed that Bivens remains good law and that complaints raising individual Bivens-like claims for monetary damages remain cognizable.  Indeed, the Court was explicit, stating that “this opinion is not intended to cast doubt on the continued force, or even the necessity, of Bivens in the search-and-seizure context in which it arose.”  Ziglar, 137 S. Ct. at 1856.  And although Ziglar resisted efforts to extend Bivens beyond its core contexts, none of the new contexts the Court mentioned were Fourth Amendment suits.  See id. at 1857.  

Moreover, none of the concerns animating Ziglar is present here.  First, Ziglar was a large-scale challenge to U.S. detention policy on behalf of hundreds of inmates.  Second, the complaint in Ziglar implicated national security policies instituted at the highest levels of the Executive Branch after the terrorist attacks on September 11, 2001.  Third, the Ziglar complaint sought broad-based institutional reform through an injunction that would change federal detention policy.  

Unlike Ziglar, the Attkissons’ claim is an individual challenge to a specific incident of government misconduct committed by one or a small number of federal officials.  In such circumstances, a successful Bivens action would in no way involve the Judicial Branch in second-guessing large Executive Branch policies as Ziglar would have.  

In addition, the Attkissons’ Complaint does not challenge broad issues of national security policy, as Ziglar did.  Significantly, this is not a case challenging the Government’s overall policy of trying to identify or prosecute those who leak confidential governmental information.  Instead, the Attkissons’ sole concern is the specific infiltration of their computer systems to conduct warrantless surveillance.  That infiltration, unless somehow justified, is simply an unconstitutional search; no broad policy question need be resolved, and no large-scale national security question is at stake.  

Finally, the Attkissons seek monetary damages just like the Bivens plaintiff.  Thus, this is not an institutional reform case like Ziglar requesting an injunction to effect broad policy change.  It simply seeks compensation for a specific violation of clearly established Fourth Amendment rights.

The panel, in its Ziglar analysis, relied heavily on the fact that the Attkissons’ Complaint names high-ranking government officials, in addition to the sort of lower-level federal agents who were the defendants in Bivens itself.  Yet, although the Attkissons’ Complaint does name the former heads of two agencies, Holder and Donahoe, those individuals are not being sued based on general policy decisions they may have made, but only to the extent that either or both individuals specifically ordered or permitted the unlawful infiltration of the Attkissons’ computer systems.  Thus, although the Ziglar Court noted that the rank of the defendants could be seen as a meaningful extension of Bivens, that would only be in a case like Ziglar itself, where the high-ranking officials made discretionary policy decisions that are essentially being second-guessed through litigation.  Here, no such policy decisions are at issue.  

Finally, the panel relied in part on the possible existence of other statutory remedies as a reason not to allow the Attkissons’ claim.  Although Ziglar noted that those plaintiffs might have other avenues to address their detention claims, here the only likely alternative statutory possibilities are the ECPA or the Federal Tort Claims Act (“FTCA”).  Yet, the panel dismissed the Attkissons’ ECPA claims against Holder and Donahoe as well, so it is disingenuous to say that the ECPA provides a viable alternative.  And the Supreme Court has explicitly rejected the idea that the FTCA constitutes an adequate substitute for Bivens.  Carlson v. Green, 446 U.S. 14, 15 (1980) (“[T]he Bivens remedy, being recoverable against individuals, is a more effective deterrent than the FTCA remedy against the United States.”).  

In short, the Attkissons’ Complaint simply presents a specific fact-bound application of clearly established Fourth Amendment jurisprudence.  Nothing about the case extends Bivens to a novel context, nor does the Complaint implicate the sort of separation-of-powers concerns that animated Ziglar.  Further, the Attkissons seek only monetary damages arising from a particular infiltration of their computer systems.  No broader injunction or institutional reform is sought.  Thus, this is at heart the same suit as Bivens itself. 

This Circuit has not yet interpreted Ziglar outside the very different context of immigration enforcement, where deference to Executive Branch discretion is at its zenith.  See Tun-Cos v. Perrotte, 2019 WL 1867819 (4^th Cir. April 26, 2019).  However, the Ninth Circuit has ruled that even extending Bivens to new contexts is justifiable under Ziglar if the claim concerns an “individual instance[] of . . . law enforcement overreach,” rather than a challenge to broader Executive Branch policies.  Rodriguez v. Swartz,899 F.3d 719, 745 (9th Cir. 2018) (quoting Ziglar, 137 S. Ct. at 1862); see also Lanuza v. Love, 899 F.3d 1019, 1028-30 (9th Cir. 2018).  Likewise, some lower courts applying Ziglar have drawn precisely the distinctions described above: discrete violations of clearly established rights that have previously been recognized as cognizable Bivens claims can still proceed, while broad claims seeking new changes to Executive Branch policy cannot.  See, e.g., Jerra v. United States, No. 2:12-cv-01907-ODW, 2018 WL 1605563, at *6 (C.D. Cal. Mar. 29, 2018), appeal filed sub nom. Jerra v. Magana, No. 18-55678, 2018 WL 1605563 (9th Cir. May 25, 2018); McLean v. Gutierrez, No. 15-275-RGK, 2017 WL 6887309, at *18-19 (C.D. Cal. Sept. 28, 2017). 

As in these cases, the Attkissons’ claim is only an individual allegation of government overreach by law enforcement officials, making it easily distinguishable from Ziglar.  Thus, the Fourth Circuit, in accord with these decisions, should recognize that Ziglar does not prevent individual core Bivens unlawful search claims from proceeding.

1. The Panel Improperly And Without Explanation Extended Qualified Immunity To An Entirely New Category Of Cases.

The ECPA makes it unlawful to “intentionally intercept[], endeavor[] to intercept, or procure[] any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication.”  18 U.S.C. § 2511(1)(a).  The Attkissons’ Complaint alleged a violation of Section 2511(1)(a), both by those government officials who directly infiltrated the Attkissons’ computer systems and those who procured others to do so.  JA 148.  Although the Government agreed that the ECPA makes both direct infiltrators and procurers liable under this provision, the parties disagreed as to whether a subsequent amendment to a different ECPA provision removed a private right of action against procurers only.  See Fed. Appellees Brief at 25-28. 

The panel did not resolve this question, ruling that in light of the statutory ambiguity the defendants were entitled to qualified immunity.  Decision at 30-32.  However, it is both unambiguous and undisputed that Section 2511(1)(a) makes it unlawful to procure others to violate the ECPA.  Thus, the unlawfulness of the act was clearly established for qualified immunity purposes.  

Harlow v. Fitzgerald,457 U.S. 800 (1982), held that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  Id. at 818.  Significantly, Harlow speaks of conduct that violates clearly established rights, but makes no mention at all of the existence or non-existence of remedies.  

This distinction is crucial given the purpose of qualified immunity.  The doctrine shields governmental officials when they make discretionary judgments if the underlying legality of those judgments is ambiguous.  The focus is properly on whether the act of the governmental official is or is not clearly unlawful.  Nowhere does the doctrine address whether the unlawful behavior happens to give rise to any particular cause of action.  Indeed, if a government official knows an act is unlawful, it should not matter what the possible consequences of breaking the law might be; if the official violated clearly established law, then qualified immunity is unjustified.   

Accordingly, the panel decision, perhaps unwittingly, expands the qualified immunity doctrine to give defendants immunity even if they commit a clear statutory offense, so long as it can be argued that the offense might possibly not provide a private right of action.  Such an expansion, particularly undertaken without any explanation or justification, is improper.  

1. The Panel’s Rule 41(b) And 4(m) Dismissal Of The Claims Against The John Doe Defendants Is Inconsistent With Circuit Caselaw And Undermines Both Bivens Itself And The Future Viability Of Suits Against Government Officials In Surveillance Cases. 

Plaintiffs alleging that government officials secretly searched their home or infiltrated their computer systems will almost never know the names of those agents before litigation.  Thus, Bivens contemplates—and all federal courts allow—suits against unnamed John Doe officials whose identities are not yet known.  

Regardless of how the Ziglar or qualified immunity issues discussed above are resolved as to Holder and Donahoe, it is undisputed that both the Bivens and ECPA claims are cognizable against any John Doe agents who unlawfully infiltrated the Attkissons’ computer systems.  Therefore, since the beginning of litigation, the Attkissons have been trying to obtain information regarding the identity of these agents.  Yet, over four years of attempts, the Government has never accepted service of process regarding the John Does nor provided any discovery that would help identify the agents involved.  

Instead of remanding to provide opportunity for meaningful discovery, the panel majority distorts Rules 41(b) and 4(m) beyond recognition, inventing rationales for dismissing the case by blaming the plaintiffs for not pursuing discovery assiduously enough.  As the dissent points out, this approach is contrary to Fourth Circuit precedent and would make it nearly impossible ever to pursue a case against the Government for unlawful surveillance.  Thus, dismissal of the claims against the John Doe defendants, either with or without prejudice, is unjustified and dangerously tilts the scales of civil litigation in favor of defendants, who often will be uniquely in possession of the information the plaintiff needs to pursue a case.

Both this Circuit and other circuits have frequently warned that dismissals under Rule 41(b) are reserved for only the most egregious instances of litigant intransigence.  See Decision at 66 (Wynn J., concurring in part and dissenting in part) (citing cases).  Because Rule 41(b) dismissals, by their nature, deprive plaintiffs of a meaningful opportunity to pursue their claims, such dismissals “must be tempered by a careful exercise of judicial discretion.”  Reizakis v. Loy, 490 F.2d 1132, 1135 (4th Cir. 1974) (internal quotation omitted); see also Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978) (Rule 41(b) dismissal is a “harsh sanction which should not be invoked lightly.”).  

Under Hillig v. C.I.R., 916 F.2d 171 (4th Cir. 1990): 

This Circuit requires that the trial court consider four factors before dismissing a case for failure to prosecute: (1) the plaintiff’s degree of personal responsibility; (2) the amount of prejudice caused the defendant; (3) the presence of a drawn out history of deliberately proceeding in a dilatory fashion; and (4) the effectiveness of sanctions less drastic than dismissal.

Id. at 174 (emphasis added).

The majority acknowledges that the District Court never even mentioned Rule 41(b) or Hillig in any of its dismissal decisions below, much less analyzed any of the four Hillig factors.  Decision at 33-35.  And the majority likewise fails to fully analyze these factors.  Instead, the majority ignores Hillig’s explicit language that this Circuit requires analysis of the four factors and replaces that requirement with a vague statement that courts should conduct a context-dependent review of all the circumstances.  Id. at 35 n.9.  Yet, although any Rule 41(b) analysis obviously must be context-dependent, Hillig mandates at least some analysis of those four factors, no matter how context-dependent that analysis might be.  The majority cannot wish Hillig away by fiat without an en banc determination of this Court.

As the dissent points out, failure of the District Court to apply the Hillig test itself amounts to abuse of discretion.  See Decision at 67 (Wynn J., concurring in part and dissenting in part) (citing cases).  In addition, had the District Court (or the panel majority) properly considered the Hillig factors, a Rule 41(b) dismissal would not have been warranted.  First, there is no evidence that the Attkissons had any degree of personal responsibility for their attorney’s purported failure to comply with the court’s order.  Second, any prejudice arising from the passage of time is attributable principally to the Government’s repeated efforts to delay and resist any discovery.  Third, the record belies any finding that Attkisson engaged in “a drawn out history of deliberately proceeding in a dilatory fashion.”  Hillig, 916 F.2d at 174.  On the contrary, the Attkissons have repeatedly sought discovery to identify the Doe defendants and have faced largely successful resistance from the Government at every turn.  Even on the majority’s own telling, Decision at 22, the only window the plaintiffs actually received for discovery was twenty-three days, during which time the Government did not respond to document requests and did not make witnesses available for discovery, despite the plaintiffs’ attorney’s efforts to schedule them.  Finally, many less drastic remedies were available, such as denying further leave to amend the complaint to add new defendants or causes of action.  

The majority opinion is also contrary to this Circuit’s decision in Schiff v. Kennedy, 691 F.2d 196, 198 (4th Cir. 1982).  Under Schiff, plaintiffs’ inability to identify defendants, standing alone, is insufficient to justify dismissal.  To the contrary, Schiff, following Bivens itself, determined that the mere failure to name a defendant could not justify dismissal and reversed the district court on that ground.  Recognizing that trial judges need leeway to manage their dockets, the court allowed for dismissal “if it does not appear that the true identity of an unnamed party can be discovered through discovery or through intervention by the court.”  Id.  But because the John Doe in Schiff was a person whose identity was known only to the defendant, dismissal of the plaintiff’s claim for failure to identify that individual was rejected.  Id. at 197-98.  

The majority misreads Schiff to defer to the district court in determining whether dismissal is permitted even when the identity of a John Doe is ascertainable.  See Decision at 40.  According to the majority, because the court in Schiff ultimately remanded for the trial judge to decide whether the case could proceed, that means the language in the opinion about the John Doe was optional, not mandatory.  But the Schiff court only remanded for consideration of whether the case might be dismissed on other grounds.  Schiff, 691 F.2d at 198.  The court firmly rejected the idea that the judge could simply dismiss because the John Doe had not yet been identified.  Not surprisingly, other courts of appeal have read Schiff’s language as mandatory and made clear that dismissing a claim against John Does is only appropriate if the identity of the John Does cannot be discovered.  See, e.g.,Roper v. Grayson, 81 F.3d 124, 126 (10th Cir. 1996); Munz v. Parr, 758 F.2d 1254, 1257 (8th Cir. 1985); see also Davis v. Kelly, 160 F.3d 917, 921 (2d Cir. 1998) (collecting cases taking approach similar to Schiff); Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980) (dismissal inappropriate “unless it is clear that discovery would not uncover the identities” of the John Does).  As the Seventh Circuit has recognized, this approach “is implicit in the many cases, most famously Bivens, that take for granted the right of a plaintiff to sue unknown injurers.”  Billman v. Ind. Dep’t of Corr., 56 F.3d 785, 789 (7th Cir. 1995) (citation omitted).  Thus, the majority’s distortion of Schiff potentially runs afoul of Bivens itself and certainly requires panel rehearing or en banc review.

Finally, dismissal under Rule 4(m) is unwarranted—and frankly cruel—because the only reason the John Does have not been served is that the Government has refused service of process until the John Does are named individually and have refused to provide any discovery that would allow the Attkissons to name them!  Surely, whatever the “good cause” exception in Rule 4(m) encompasses, this should fall within it.

In the end, there is no justification for dismissing a plausible complaint by a plaintiff when that plaintiff cannot achieve meaningful discovery from an intransigent defendant despite repeated attempts to do so.  Even more disturbing, the panel Decision effectively blesses the Government’s efforts to successfully stonewall any plaintiff who alleges unlawful Government surveillance.  As the dissent points out, “[u]nder the government’s playbook—which the district court effectively endorsed—plaintiffs would be deprived all opportunity to challenge the legality of most, if not all, these electronic surveillance efforts, notwithstanding the significant intrusion on individual rights posed by such surveillance.”  Decision at 71-72 (Wynn, J., concurring in part and dissenting in part).

CONCLUSION

Panel rehearing or rehearing en banc is warranted.

Respectfully Submitted,

Professor Paul Schiff Berman

Walter S. Cox Professor of Law

The George Washington University Law School

Professor Paul Schiff Berman

9 Hesketh Street

Chevy Chase, MD. 20815

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