United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 4, 2008 Decided February 20, 2009
No. 07-5080
SCOTT TOOLEY,
APPELLANT
v.
JANET NAPOLITANO, HOMELAND SECURITY SECRETARY, IN
HER OFFICIAL CAPACITY, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 06cv00306)
Cassandra S. Bernstein, appointed by the court, argued
the cause for amicus curiae in support of appellant. With her
on the briefs were Richard P. Bress and Gabriel K. Bell.
Scott Tooley, appearing pro se, was on the brief for
appellant.
Teal Luthy Miller, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Gregory G. Katsas, Assistant Attorney General, and Douglas
2
Letter, Litigation Counsel. Anthony A. Yang, Attorney,
entered an appearance.
Before: SENTELLE, Chief Judge, AND TATEL, Circuit
Judge, AND WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
Dissenting opinion filed by Chief Judge SENTELLE.
WILLIAMS, Senior Circuit Judge: According to Scott
Tooley’s complaint, he phoned Southwest Airlines in the
spring of 2002 to buy tickets to fly to Nebraska to visit his
family. At the end of the call, after Tooley had provided
Southwest with his name and contact information, the airline
representative asked Tooley if he had any “comments,
questions, or suggestions.” Compl. ¶ 18. Tooley responded
that, in the wake of the September 11 attacks, Southwest
should screen 100 percent of “everything,” and that without
“proper security” Tooley and other members of the traveling
public were “less safe due to the potential that those who wish
to harm American citizens could put a bomb on a plane.”
Compl. ¶¶ 19-20. The Southwest representative responded
with alarm and declared “you said the ‘b’ word, you said the
‘b’ word.” Tooley Aff. ¶ 7. Tooley attempted to explain to
the representative that she had not understood him correctly,
but she nevertheless placed him on hold. After 20 minutes,
Tooley finally hung up. Id.
According to Tooley, the ticket agent’s seeming paranoia
was not the end of the matter. Other events followed, which
he ascribes to various government officials; those remaining
in the suit, after a partial dismissal by Tooley, are the United
States Attorney General, the Secretary of the Department of
Homeland Security, and the Administrator of the
3
Transportation Security Administration, all sued solely in
their official capacities (collectively, the “government”). See
Tooley v. Bush, No. 06-306, 2006 WL 3783142, at *1 (D.D.C.
2006) (detailing the defendants initially included in Tooley’s
complaint and his later dismissals).
Tooley claims that in the fall of 2003, more than a year
after the call to Southwest, he began to notice problematic
phone connections, including “telltale” intermittent clicking
noises. Compl. ¶ 21. He alleges, “[u]pon information and
belief,” that his telephone problems were caused by illegal
wiretaps placed on his residential landline phone, his landline
phone at his former residence, his cellular phone, his wife’s
cellular phone, the phones of his father, brother, sister, and in-
laws, and his family’s phone in Lincoln, Nebraska, where
relatives from “France made calls from France to the home,
where Mr. Tooley was visiting his mother for the week.” Id. ¶
22. Tooley claims that these alleged wiretaps were placed in
response to the comments he had made to Southwest’s
representative.
In addition, he alleges that the government has placed
him on “one or more terrorist watch lists” and that as a result
he is “being illegally monitored by Defendants.” Id. ¶ 25.
This illegal monitoring has allegedly taken various forms,
including the placement of permanent “Radio Frequency
Identification Tags” on Tooley’s vehicle and improper
detentions and searches at airports. Id. ¶¶ 23-24. Tooley also
claims, in an affidavit submitted to the district court, that in
March of 2005, when then-President George W. Bush visited
Louisville, Kentucky, where Tooley currently resides, “an
officer in a Ford Crown Victoria sat out in front of [Tooley’s]
home for approximately six (6) hours a day” during the week
leading up to and the week of President Bush’s visit. Tooley
Aff. ¶ 19.
4
In order to obtain more information regarding this
allegedly illegal surveillance, Tooley submitted several
requests under the Freedom of Information Act (“FOIA”), 5
U.S.C. § 552. See Tooley, 2006 WL 3783142, at *3-8
(detailing the various FOIA requests). After the requests
failed to yield any information confirming his suspicions,
Tooley filed the present case in the district court. Counts I
and II charge Fourth Amendment and constitutional right to
privacy violations, respectively; Count III claims a First
Amendment violation on the theory that the government’s
illegal surveillance had caused him to curtail his speech.
Count IV sought declaratory relief under FOIA.
The district court granted the government’s motion for
summary judgment on the FOIA count, Tooley, 2006 WL
3783142, at *21, and Tooley does not challenge that decision.
As to Counts I through III, the government moved to dismiss
under Federal Rule of Civil Procedure 12(b)(1) on the ground
that Tooley lacked Article III standing. The district court
addressed the standing arguments by dividing Tooley’s
allegations into three categories based on the character of the
government’s alleged unlawful behavior—wiretapping;
physical surveillance (including the claim that Defendants
unlawfully placed a Radio Frequency Identification Tag on
Tooley’s vehicle); and the unlawful placement of Tooley’s
name on a terrorist watch list. Tooley, 2006 WL 3783142, at
*22.
The court held that Tooley lacked Article III standing for
both the wiretapping claims and physical surveillance claims.
It reasoned that “it is altogether possible” that Tooley was the
subject of “entirely lawful wiretaps placed by state or local
law enforcement agencies” and that Tooley could not show
that it was a federal agent responsible for any of his alleged
physical surveillance. Id. at *23, 25.
5
As to Tooley’s being placed on terrorist watch lists, the
court found Article III standing, but nonetheless dismissed
Tooley’s claim on the basis of another subject matter
jurisdiction problem. Tooley, 2006 WL 3783142, at *26.
Focusing solely on the Transportation Security Administration
(“TSA”) watch lists, the court found, in reliance on 49 U.S.C.
§§ 46110(a), (c), that such lists “are incorporated into Security
Directives issued by TSA . . . and Congress has vested
exclusive jurisdiction to review such directives in the Court of
Appeals.” Id.
Tooley now appeals the district court’s dismissals of
Counts I through III, arguing that the district court improperly
applied the “liberal requirements of notice pleading” and
rested its conclusions “on a basic misreading of the
Complaint.” Petr. Br. 2. Thin as Tooley’s claims appear, we
agree and therefore reverse and remand the case.
* * *
To establish constitutional standing a plaintiff must show
an injury in fact that is fairly traceable to the challenged
conduct and that will likely be redressed by a favorable
decision on the merits. Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61 (1992). The burden on the plaintiff to show
each element grows increasingly stringent at each successive
stage of the litigation. Id. at 561. At the pleading stage,
Federal Rule of Civil Procedure 8(a) requires only “a short
and plain statement of the claim showing that the pleader is
entitled to relief,” from which it follows that “general factual
allegations of injury resulting from the defendant’s conduct
may suffice.” Lujan, 504 U.S. at 561. At the summary
judgment stage, by contrast, “the plaintiff can no longer rest
on . . . mere allegations” but must set forth specific facts by
affidavit or other evidence. Id. (internal quotations omitted).
6
In the absence of district court resolution of disputed issues of
material fact, we review a dismissal for lack of standing de
novo. Muir v. Navy Fed. Credit Union, 529 F.3d 1100, 1105
(D.C. Cir. 2008).
The Supreme Court’s decision in Bell Atlantic Corp. v.
Twombly, 127 S. Ct. 1955 (2007), has produced some
uncertainty as to exactly what is required of a plaintiff at the
pleading stage. See Aktieselskabet Af 21. November 2001 v.
Fame Jeans, 525 F.3d 8, 15 & n.3 (D.C. Cir. 2008) (gathering
cases suggesting that courts “have disagreed about the import
of Twombly”). In Fame Jeans, however, we concluded that
“Twombly leaves the longstanding fundamentals of notice
pleading intact.” Id. at 15. Thus, we “must assume all the
allegations of the complaint are true . . . and . . . must give the
plaintiff the benefit of all reasonable inferences derived from
the facts alleged.” Id. at 17 (internal citations and quotations
omitted). This liberal pleading standard requires a court to
deny a motion to dismiss “even if it strikes a savvy judge that
. . . recovery is very remote and unlikely.” Twombly, 127 S.
Ct. at 1965. So long as the pleadings suggest a “plausible”
scenario to “sho[w] that the pleader is entitled to relief,” a
court may not dismiss. Id. at 1966.
In finding that Tooley lacked standing, the district court
delved into an examination of the merits of Tooley’s claim
and found them wanting. For example, in evaluating Tooley’s
wiretapping claim, the district court surmised that “Plaintiff
has been the subject of entirely lawful wiretaps placed by state
or local law enforcement agencies.” Tooley, 2006 WL
3783142, at *23. Injunctive relief, it reasoned, would be
“ineffective if in fact, Plaintiff is the subject of wiretaps
placed by someone other than federal officials or if there are
actually no wiretaps.” Id. at *24. Similarly, in evaluating
Tooley’s physical surveillance claims, the district court
questioned whether the person Tooley alleged was sitting in
7
front of his house was a federal officer and whether the officer
was there as a consequence of his phone conversation with
Southwest. Id. at *23-24.
But at this stage of the litigation standing “in no way
depends on the merits of the plaintiff’s contention that
particular conduct is illegal.” Warth v. Seldin, 422 U.S. 490,
500 (1975). A plaintiff does not need to “prove that the
agency action it attacks is unlawful”; otherwise “every
unsuccessful plaintiff will have lacked standing in the first
place.” Louisiana Energy & Power Auth. v. FERC, 141 F.3d
364, 368 (D.C. Cir. 1998) (internal quotations omitted).
Under our system’s undemanding pleading rules, the district
court was required to accept Tooley’s factual allegations as
true.
On appeal the government makes little attempt to defend
the hypothetical scenarios that led the district court to
conclude that Tooley’s alleged injuries may not have been
caused by the defendants. Instead, the government argues
that, even accepting Tooley’s factual allegations as true, they
are “so insubstantial . . . that they fail to ‘raise a right to relief
above the speculative level.’” Appellees’ Br. 30 (quoting
Twombly, 127 S. Ct. at 1965).
Specifically, the government argues that Tooley’s
allegations are “no more substantial than the allegations this
Court found inadequate to establish standing in United
Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375
(D.C. Cir. 1984).” Appellees’ Br. 34. In United Presbyterian
the plaintiffs challenged an executive order governing foreign
intelligence and counterintelligence activities. United
Presbyterian, 738 F.2d at 1377. We affirmed the dismissal of
the claims because the plaintiffs could not satisfy the injury-
in-fact standing requirement. The plaintiffs had asserted that
they were “currently subjected to unlawful surveillance” as
8
evidenced by factual allegations that one plaintiff suffered
from interrupted mail service and another from disruption of
speaking engagements; but we found that “[m]ost, if not all,
of the allegations on that score are in any event too
generalized and nonspecific to support a complaint.” Id. at
1380.
While we share many of our dissenting colleague’s
concerns over the ultimate plausibility of Tooley’s claims, his
allegations are somewhat less generalized and self-
contradictory than those of United Presbyterian. Especially
when taken in combination, Tooley’s claims—to have seen an
officer sitting outside his home during a Presidential visit, to
have heard supposed “telltale” phone clicks, and to be subject
to searches every time he travels— create links to government
surveillance that are more specific than the mere loss of mail.
Further, although the temporal link between the precipitating
event and the alleged surveillance may in Tooley’s case
appear stretched nearly to the breaking point, in United
Presbyterian time would have had to run backwards:
“[M]any of the appellants allege unlawful activities directed
against them before this executive order or either of its
predecessors existed.” Id. at 1381 n.3 (emphasis added).
Thus, we think the two cases are distinguishable and that
Tooley’s standing allegations meet the federal rules’
notoriously loose pleading criteria.
As to Tooley’s claim that the alleged surveillance
“chilled” his speech in violation of the First Amendment, the
government points to Laird v. Tatum, 408 U.S. 1 (1972).
There the Supreme Court held that the plaintiffs had not
adequately presented a justiciable controversy because their
decision to curtail their speech was based on a “subjective
‘chill,’” and not a claim of “specific present objective harm or
a threat of specific future harm.” Id. at 13-14. But in Laird
the plaintiffs’ alleged self-censorship was “caused, not by any
9
specific action of the Army against them, [but] only [by] the
existence and operation of the intelligence gathering and
distributing system.” Id. at 3 (internal quotations omitted).
Tooley, in contrast, alleges harm from specific events,
arguably linked to government conduct, that he says caused
the chilling effect. Whether or not Tooley’s alleged harms
amount to a First Amendment claim remains an open
question, one which was not before the district court.
Finally, we turn to Tooley’s claim that he has been
wrongfully placed on terrorist watch lists. The Complaint
alleges that following Tooley’s conversation with Southwest
in the spring of 2002, he has been “improperly detained and
subjected to a strict search without any probable cause.”
Compl. ¶ 24. His affidavit provides further details about these
detentions and searches, which he claims occurred every time
he traveled before filing this suit. Tooley Aff. ¶ 15.
Specifically, Tooley alleges that in July 2004, he was
subjected to a “degrading and unreasonable search” at
Omaha’s Eppley Airfield. The district court concluded, and
we affirm, that Tooley has established Article III standing on
his watch list claims. Tooley, 2006 WL 3783142, at *26.
But the district court’s conclusion that it lacked subject
matter jurisdiction over the entirety of Tooley’s watch list
claims was based on a misreading of the complaint. When
analyzing Tooley’s claim that he was placed on “one or more
terrorist watch lists,” Compl. ¶ 25, the district court focused
only on TSA watch lists. It concluded that TSA watch lists
are incorporated into security directives issued by TSA
pursuant to 49 U.S.C. § 114(l)(2)(A) and that therefore the
10
federal courts of appeals have exclusive jurisdiction over such
watch lists pursuant to 49 U.S.C. §§ 46110(a), (c).1
We may assume for our purposes that the district court
was correct insofar as TSA watch lists are concerned. But
Tooley’s complaint did not focus solely on watch lists
maintained by the TSA. Though he mentions TSA watch lists
numerous times in his pleadings, he also alleges that he has
been placed on numerous watch lists and sought an injunction
requiring “Defendants to remove his name from any and all
watch lists that may indicate Plaintiff is associated with any
terrorist activities or organizations.” Compl. 15 (emphasis
added). As Tooley’s complaint should be liberally construed
and the possibility exists that several government agencies
apart from the TSA maintain watch lists, see Peter M. Shane,
The Bureaucratic Due Process of Government Watch Lists, 75
Geo. Wash L. Rev. 804, 811 (2007) (discussing at least 12
terrorist or criminal watch lists maintained by the federal
government), the district court erred in treating Tooley’s claim
as if it had been confined to TSA watch lists.
* * *
We must therefore reverse. In regard to further
proceedings, we note that once a plaintiff has overcome a
standing challenge under our famously liberal pleading rules
he is not automatically entitled to unlimited discovery.
Federal Rule of Civil Procedure 26(b)(2) dictates that “the
court must limit the frequency or extent of discovery . . . if it
determines that . . . the burden or expense of the proposed
1
The district court mistakenly cited to 48 U.S.C. § 46110, see
Tooley, 2006 WL 3783142, at *26, though clearly referring to 49
U.S.C. § 46110.
11
discovery outweighs its likely benefit considering . . . the
importance of the issues at stake in the action.” Additionally,
Federal Rule of Civil Procedure 56(f) states that where the
party opposing a motion for summary judgment claims
inability to “present facts essential to justify its opposition,”
“the court may” order a continuance to permit discovery to
occur, a highly discretionary power. See Donofrio v. Camp,
470 F.2d 428, 431-32 (D.C. Cir. 1972) (“The rules governing
discovery, including Fed. R. Civ. P. 56(f), are to be construed
liberally to prevent injustice, but they do not require a trial
judge to countenance repeated abuses of the discovery process
or to let discovery go on indefinitely in a groundless suit.”).
Moreover, discovery relating to national security may present
exceptional problems, as in some contexts a pattern of
government answers (denying specific conduct in some cases,
refusing to answer on national security grounds in others)
would constitute a de facto disclosure of information not
formally disclosed. Cf. Bassiounia v. C.I.A, 392 F.3d 244,
246 (7th Cir. 2004) (“When a pattern of responses itself
reveals classified information, the only way to keep secrets is
to maintain silence uniformly.”). And finally we observe that
“[i]n most cases,” an assertion by the government that
disclosure of “communications collections and analysis
capabilities” would jeopardize the “intelligence collection
mission” may be sufficient to foreclose discovery and sustain
a claim of privilege. Halkin v. Helms, 598 F.2d 1, 9 (D.C. Cir.
1978) (internal quotations omitted) (upholding, after an in
camera examination, an assertion of the state secrets privilege
with respect to the mere fact of interception of plaintiff’s
foreign communications).
For the reasons stated above the judgment of the district
court on Counts I, II, and III is reversed and the case is
Remanded.
SENTELLE, Chief Judge, dissenting: While the majority’s
opinion correctly describes the case before us and correctly
identifies the controlling authorities, in my view the controlling
authorities lead in the opposite direction than that taken by the
majority. In other words, I would reach the same conclusion as
the district court and therefore must respectfully dissent.
As the majority correctly notes, the Supreme Court’s most
recent pronouncement relevant to the sufficiency of a complaint
to meet the notice standard of pleading required by Rule 8 of the
Federal Rules of Civil Procedure is Bell Atlantic Corp. v.
Twombly, 127 S. Ct. 1955 (2007). In Twombly, the Court
addressed the sufficiency of the complaint alleging liability
under § 1 of the Sherman Act, 15 U.S.C. § 1, which “requires a
‘contract, combination . . ., in restraint of trade or commerce.’”
Twombly, 550 U.S. at 544, 127 S. Ct. at 1961. In that case, the
Supreme Court considered specifically “whether a § 1 complaint
can survive a motion to dismiss when it alleges that major
telecommunications providers engaged in certain parallel
conduct unfavorable to competition, absent some factual context
suggesting agreement, as distinct from identical, independent
action.” Id. The Court “h[e]ld that such a complaint should be
dismissed.” Id.
The immediate question concerning the application of
Twombly to the case before us is one posed by the Twombly
dissent:
Whether the Court’s actions [in Twombly] will benefit only
defendants in antitrust treble-damages cases, or whether its
test for the sufficiency of a complaint will inure to the
benefit of all civil defendants, is a question that the future
will answer.
2
Id. at 1988 (Stevens, J., dissenting).
As the majority seems to agree, nothing in the reasoning of
the Court in Twombly suggests that its applicability is limited to
antitrust litigation. Justice Souter for the Court engages in an
analysis of Civil Rules jurisprudence that seems to apply to all
litigation under the Rules, without limitation to the specific sort
of litigation then before the Court. The gist of the Court’s view
is illuminated in a footnote to the majority’s opinion responsive
to the dissent.
The dissent greatly oversimplifies matters by suggesting
that the Federal Rules somehow dispensed with the
pleading of facts altogether. While, for most types of cases,
the Federal Rules eliminated the cumbersome requirement
that a claimant “set out in detail the facts upon which he
bases his claim,” Rule 8(a)(2) still requires a “showing,”
rather than a blanket assertion, of entitlement to relief.
Without some factual allegation in the complaint, it is hard
to see how a claimant could satisfy the requirement of
providing not only “fair notice” of the nature of the claim,
but also “grounds” on which the claim rests. [The Rule]
“contemplate[s] the statement of circumstances,
occurrences, and events in support of the claim presented”
and does not authorize a pleader’s “bare averment that he
wants relief and is entitled to it.”
Id. at 1965 n.3 (citations omitted) (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957) (emphasis added by Twombly), and 5
WRIGHT & MILLER § 1202, at 94). This analysis is not limited
by the Court to one type of litigation subject to the Rules, but
would appear to apply to all such litigation.
3
Rule 8(a) expressly establishes the following general rules
of pleading:
Claim for Relief. A pleading that states a claim for relief
must contain:
(1) a short and plain statement of the grounds for the court’s
jurisdiction, unless the court already has jurisdiction and the
claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the
pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief
in the alternative or different types of relief.
The Twombly Court goes on to note “[t]he need at the
pleading stage for allegations plausibly suggesting” the elements
of the underlying theory of relief. 127 S. Ct. at 1966. This
plausibility standard applied by the Court “reflects the threshold
requirement of Rule 8(a)(2) that the ‘plain statement’ possess
enough heft to ‘sho[w] that the pleader is entitled to relief.’” Id.
The applicability of this plausibility standard to litigation
outside the Sherman Act context is established by the Twombly
Court’s further analysis in its reference to the “practical
significance of the Rule 8 entitlement requirement.” Id. The
Court relies upon Dura Pharmaceuticals, Inc. v. Brudo, 544
U.S. 336 (2005), wherein it had explained “that something
beyond the mere possibility of loss causation must be alleged,
lest a plaintiff with ‘a largely groundless claim’ be allowed to
‘take up the time of a number of other people, with the right to
do so representing an in terrorem increment of the settlement
value.’” Twombly, 127 S. Ct. at 1966 (quoting Dura
Pharmaceuticals, 544 U.S. at 347) (other citations omitted).
That said, the Court concluded that “‘a district court must retain
4
the power to insist upon some specificity in pleading before
allowing a potentially massive factual controversy to proceed.’”
Twombly, 127 S. Ct. at 1967 (quoting Associated Gen.
Contractors of Cal., Inc. v. Carpenters, 459 U.S. 519, 528 n.17
(1983)). That same concern, in my view, animates the need for
the ability of the district court to reject an implausible claim
against the United States in, for example, the constitutional
rights and national security area such as the case before us.
Therefore, Twombly commands, I think sensibly, that the district
court should be permitted to dismiss a complaint resting on
implausible expressions of information and belief such as the
one before us today as not stating a justiciable controversy, or
otherwise put, a claim for relief.
I recognize, as the majority correctly notes, that we
analyzed Twombly in Aktieselskabet AF 21. November 2001 v.
Fame Jeans, Inc., 525 F.3d 8 (D.C. Cir. 2008). Therein we held
that “Twombly leaves the long-standing fundamentals of notice
pleading intact.” Id. at 15. I must agree that Twombly does not
set some new standard of pleading, but I do believe that it
reiterates a longstanding plausibility doctrine. Even before
Twombly, courts could dismiss cases for lack of jurisdiction if
the cases are “patently insubstantial.” Neitzke v. Williams, 490
U.S. 319, 327 n.6 (1989); see also Hagans v. Lavine, 415 U.S.
528, 536 (1974). Likewise, the court could enter such dismissal
when the case is “obviously frivolous,” Hannis Distilling Co. v.
Baltimore, 216 U.S. 285, 288 (1910). I further recognize that
complaints can be based on “information and belief.” I do not,
however, think that in light of Twombly and the other cited
authorities that “information and belief” can be a fanciful,
paranoid, or irrational belief based on nothing more than the
plaintiff’s internal belief structure and still be sufficient to
subject a defendant, or in this case the taxpayers, to the costs and
burdens of litigation. Tooley’s allegations are of this sort.
5
Tooley would have us hold that he has adequately alleged
unlawful wiretapping of an entire extended family, including at
least nine separate phone lines based on no apparent source of
belief other than “problematic phone connections, including
telltale intermittent clicking noises.” I note in passing that there
is no reason to believe that wiretaps even cause problematic
connections or intermittent clicking sounds. Indeed, if this were
the case, wiretaps would hardly have proved to be the useful tool
they have in both criminal law enforcement investigations under
Title III of the Omnibus Crime Control and Safe Streets Act of
1968, §§ 2510-2520, Pub. L. No. 90-351, or national security
under the Foreign Intelligence Surveillance Act, 50 U.S.C. §§
1801-1862. However, even if plaintiff were correct in that
supposition, he offers no basis for his “belief” that the taps, even
if they occurred, were done illegally by the defendants named in
the complaint.
The rest of his allegations are based on similar fanciful
beliefs. As the majority notes, he interprets the presence of a
black Crown Victoria in the vicinity of his home in the time
surrounding a presidential visit in the same geographic area to
mean that he is under an unlawful surveillance. While I readily
concur that black Crown Victorias are often used by law
enforcement, I cannot conclude that Tooley’s alleging (by
affidavit rather than in the complaint) that one such vehicle was
in the vicinity of his residence is a plausible allegation that an
unlawful surveillance of him by the defendants has occurred.
Plaintiff’s allegations concerning airport searches and his
conclusion concerning “watch lists” based on such searches add
nothing to the sufficiency of this complaint. Stripped of his
conclusory adjectives and adverbs, his allegations say that he
has been searched or detained at airports. It is unlikely that
anyone who flies with any frequency has not. If there is
anything unconstitutional about any particular search to which
6
he has been subjected, then he should allege the facts that
demonstrate its unconstitutionality. On the face of the
complaint, he has not done so. If his allegations concerning
airport searches were sufficient, I venture to say that many
members of this court could file a similarly sufficient complaint.
In short, I would apply the plausibility doctrine illuminated
by the Supreme Court’s opinion in Twombly and conclude that
the district court correctly dismissed the complaint. I would
affirm, and therefore I must respectfully dissent.