Attkisson v. Holder

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
SHARYL THOMPSON ATTKISSON, )
et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 15-238 (EGS)
)
ERIC HOLDER, et al., )
)
Defendants. )
)
)
SHARYL THOMPSON ATTKISSON, )
et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 15-1437 (EGS)
)
ERIC HOLDER, et al., )
)
Defendants. )
)

MEMORANDUM OPINION

Sharyl Attkisson is an investigative reporter who lives in

Leesburg, Virginia with her husband, James Attkisson, and their

daughter, Sarah Attkisson. While employed as a reporter for CBS

News, Ms. Attkisson reported on numerous hot-button and

controversial subjects, like the attack on the American

diplomatic mission in Benghazi, Libya, that involved Executive

Branch officials. During the period when Ms. Attkisson was

conducting these investigations and issuing the resulting news

reports, the Attkissons began to notice anomalous activity

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related to electronic devices, like computers, mobile phones,

and televisions, occurring in their Virginia home. Subsequent

computer forensic analysis indicated a sophisticated scheme of

electronic infiltration and surveillance related to their

electronic devices. The Attkissons contend that this electronic

infiltration and surveillance was carried out by members of the

United States government in response to Ms. Attkisson’s news

reporting activity, and, accordingly, they have asserted various

claims against the United States and against former Attorney

General Eric Holder, former Postmaster General Patrick Donahoe,

and unknown agents of the Department of Justice, the United

States Postal Service, and the United States. Their claims

include Federal Tort Claims Act (“FTCA”) claims against the

United States and claims against the individual federal officers

for violations of constitutional rights under Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388

(1971). Defendants have moved to dismiss the claims against them

for lack of subject matter jurisdiction, improper venue, and

failure to state a claim upon which relief can be granted. Upon

consideration of that motion, the response and reply thereto,

the applicable law, and for the reasons discussed below,

defendants’ motion is GRANTED IN PART and DENIED IN PART WITHOUT

PREJUDICE. This consolidated case will be TRANSFERRED in its

entirety to the Eastern District of Virginia.

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I. Background

As an investigative reporter for CBS News, Ms. Attkisson

was responsible for investigating and reporting on national news

stories. Compl., ECF No. 4 ¶ 14.1 Between 2011 and 2013, she

investigated and prepared various high-profile news reports,

including ones related to the “Fast and Furious” “gunwalking”

operation and the attack on the American diplomatic mission in

Benghazi, Libya. Id. ¶¶ 5, 14-15, 17-22, 24, 34-35, 57. During

that time, Ms. Attkisson lived in Leesburg, Virginia with her

husband, James, and their daughter, Sarah. Id. ¶¶ 5-7.

In 2011——at the same time that Ms. Attkisson was conducting

investigations and issuing certain of her high-profile news

reports——the Attkissons “began to notice anomalies in numerous

electronic devices at their home in Virginia.” Id. ¶ 23. These

anomalies included Ms. Attkisson’s work-issued laptop computer

and a family desktop computer “turning on and off at night

without input from anyone in the household,” “the house alarm

chirping daily at different times,” and “television problems,

including interference.” Id. All of these electronic devices

used “the Verizon FiOS line installed in [the Attkissons’]

home,” but Verizon was unable to stanch the anomalous activity

1 This Opinion in this consolidated case cites to the complaint
filed in Civil Action No. 15-1437. The allegations in that
complaint are nearly identical to those made in the complaint
filed in Civil Action No. 15-238.
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despite multiple attempts. Id. In January 2012, the Attkissons’

residential internet service “began constantly dropping off.”

Id. ¶ 25.

In February 2012, “sophisticated surveillance spyware” was

installed on Ms. Attkisson’s work-issued laptop computer. Id. ¶

27. A later forensic computer analysis revealed that Ms.

Attkisson’s laptop and the family’s desktop computer had been

the “targets of unauthorized surveillance efforts.” Id. That

same forensic analysis revealed that Ms. Attkisson’s mobile

phone was also targeted for surveillance when it was connected

to the family’s desktop computer. Id. The infiltration of that

computer and the extraction of information from it was “executed

via an IP address owned, controlled, and operated by the United

States Postal service.” Id. Additionally, based on the

sophisticated nature of the software used to carry out the

infiltration and software fingerprints indicating the use of the

federal government’s proprietary software, the infiltration and

surveillance appeared to be perpetrated by persons in the

federal government. See id. ¶¶ 47-48. An independent forensic

computer analyst hired by CBS subsequently reported finding

evidence on both Ms. Attkisson’s work-issued laptop computer and

her family’s desktop computer of “a coordinated, highly-skilled

series of actions and attacks directed at the operation of the

computers.” Id. ¶ 49. Computer forensic analysis also indicated

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that remote actions were taken in December 2012 to remove the

evidence of the electronic infiltration and surveillance from

Ms. Attkisson’s computers and other home electronic equipment.

Id. ¶ 42.

As Ms. Attkisson’s investigations and reporting continued,

in October 2012 the Attkissons noticed “an escalation of

electronic problems at their personal residence, including

interference in home and mobile phone lines, computer

interference, and television interference.” Id. ¶ 37. In

November of that year, Ms. Attkisson’s mobile phones

“experienced regular interruptions and interference, making

telephone communications unreliable, and, at times, virtually

impossible.” Id. ¶ 40. Additionally, in December 2012, a person

with government intelligence experience conducted an inspection

of the exterior of the Attkissons’ Virginia home. Id. ¶ 43. That

investigator discovered an extra Verizon FiOS fiber optics line.

Id. Soon thereafter, after a Verizon technician was instructed

by Ms. Attkisson to leave the extra cable at the home, the cable

disappeared, and the Attkissons were unable to determine what

happened to it. Id. ¶¶ 43-45. In March 2013, the Attkissons’

desktop computer malfunctioned, and in September of that year,

while Ms. Attkisson was working on a story at her home, she

observed that her personal laptop computer was remotely accessed

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and controlled, resulting in data being deleted from it. Id. ¶¶

50, 57.

On April 3, 2013, Ms. Attkisson filed a complaint with the

Inspector General of the Department of Justice. Id. ¶ 51. The

Inspector General’s investigation was limited to an analysis of

the compromised desktop computer, and the partially-released

report that emerged from that investigation reported “no

evidence of intrusion,” although it did note “a great deal of

advanced mode computer activity not attributable to Ms.

Attkisson or anybody in her household.” Id. ¶ 60.

The Attkissons allege that the “cyber-attacks” they

“suffered in [their] home” were perpetrated by “personnel

working on behalf of the United States.” Id. ¶¶ 66-67.

Accordingly, they have asserted various claims against the

United States and against former Attorney General Eric Holder,

former Postmaster General Patrick Donahoe, and unknown agents of

the Department of Justice, the United States Postal Service, and

the United States, all in their individual capacities. Those

claims include claims against the United States under the FTCA

and claims against the individual federal officers for

violations of constitutional rights under Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

Because the Attkissons initiated two lawsuits with nearly

identical factual allegations and legal claims, the Court

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consolidated the actions. See Minute Entry of July 28, 2016.

Pursuant to that consolidation, the Court denied various pending

motions related to third-party discovery aimed at identifying

the unnamed “Doe” defendants. See id. The Attkissons have

subsequently filed a motion for reconsideration concerning the

Order denying those third-party discovery-related motions, see

Pls.’ Mot. for Recons., ECF No. 67, which defendants have

opposed. See Defs.’ Opp. to Pls.’ Mot. for Recons., ECF No. 69.

Defendants have also moved to dismiss this consolidated case for

lack of subject matter jurisdiction, improper venue, and failure

to state a claim for which relief can be granted. See Defs.’ Am.

Mot. to Dismiss, ECF No. 74.2 That amended motion to dismiss is

now ripe and ready for the Court’s adjudication.

II. Analysis

“[A] federal court has leeway to choose among threshold

grounds for denying audience to a case on the merits.” Sinochem

Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 431

(2007) (internal quotation marks omitted). Thus, “certain non-

merits, nonjurisdictional issues may be addressed preliminarily,

because ‘[j]urisdiction is vital only if the court proposes to

2 Defendants were directed to shorten the length of and refile an
earlier-filed motion to dismiss. See Minute Entry of Aug. 31,
2016. That earlier-filed motion to dismiss is hereby DENIED
WITHOUT PREJUDICE. The Court limits its analysis to the
subsequently filed amended motion to dismiss.
7
issue a judgment on the merits.’” Pub. Citizen v. U.S. Dist.

Court for D.C., 486 F.3d 1342, 1348 (D.C. Cir. 2007) (alteration

in original) (quoting id.). Accordingly, it is appropriate for

this Court——consistent with the practice of other courts in this

District——to rule on defendants’ assertion of improper venue

before addressing their challenges to subject matter

jurisdiction. See Yuanxing Liu v. Lynch, No. 14-1516, 2015 WL

9281580, at *2 (D.D.C. Dec. 8, 2015) (“This court . . . is

within its discretion to rule on Defendants’ assertion of

improper venue before addressing their challenge to subject

matter jurisdiction.”); Aftab v. Gonzalez, 597 F. Supp. 2d 76,

79 (D.D.C. 2009) (“Adjudicative efficiency favors resolving the

venue issue before addressing whether subject matter

jurisdiction exists.”).

In ruling on a motion to dismiss for improper venue under

Federal Rule of Civil Procedure 12(b)(3), the Court must accept

all well-pled factual allegations as true and must draw all

reasonable inferences in favor of the plaintiff, but the Court

is not required to accept as true plaintiff’s legal conclusions

regarding venue. Darby v. U.S. Dep’t of Energy, 231 F. Supp. 2d

274, 276-77 (D.D.C. 2002). The Court also need not accept as

true inferences that are unsupported by the facts set out in the

complaint. Herbert v. Sebelius, 925 F. Supp. 2d 13, 17 (D.D.C.

2013) (citing Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir.

8
2006)). Further, “[b]ecause it is the plaintiff’s obligation to

institute the action in a permissible forum, the plaintiff

usually bears the burden of establishing that venue is proper.”

Williams v. GEICO Corp., 792 F. Supp. 2d 58, 62 (D.D.C. 2011)

(internal quotation marks omitted). But to prevail on a motion

to dismiss for improper venue, a defendant must present facts

sufficient to defeat a plaintiff’s assertion of venue. Darby,

231 F. Supp. 2d at 277.

Here, the Attkissons assert various claims under the FTCA.

See Compl., ECF No. 4 ¶ 1. The FTCA has a special venue

provision that provides that FTCA claims “may be prosecuted only

in the judicial district where the plaintiff resides or wherein

the act or omission complained of occurred.” 28 U.S.C. §

1402(b). Defendants argue that venue is improper in the District

of Columbia as to the FTCA claims because the plaintiffs reside

in Virginia and the acts on which their claims are based

occurred in Virginia. Defs.’ Am. Mem. in Supp. of Mot. to

Dismiss, ECF No. 74-1 at 15-16. Accordingly, defendants argue,

the FTCA claims should be dismissed or, in the alternative,

transferred to the Eastern District of Virginia. Id. at 18 &

n.9. The Attkissons, in turn, acknowledge that they do not

reside in the District of Columbia, but they argue that a

substantial amount of activity giving rise to their FTCA claims

occurred in the District of Columbia, making venue as to those

9
claims proper here. Pls.’ Opp., ECF No. 77 at 18. According to

the Attkissons, the relevant activity included Ms. Attkisson’s

reporting, “all of which was carried out” in the District of

Columbia; defendants’ response to that reporting——originating

from their headquarters in the District of Columbia——to use

electronic means to identify and silence confidential sources

and to infiltrate the Attkissons’ electronic devices to extract

information; and the problems that the Attkissons experienced

with electronic devices, including mobile phones and laptop

computers, that “were transported daily to and from the District

of Columbia.” Id. at 18-19.

Venue is proper for FTCA claims in the district where

“sufficient activities giving rise to the plaintiff’s cause of

action took place.” Franz v. United States, 591 F. Supp. 374,

378 (D.D.C. 1984). “Further, when conduct occurs in one district

but has intended effects in another, ‘the act ‘occurs’ in the

jurisdiction where its effects are directed.’” Sanchez v. United

States, 600 F. Supp. 2d 19, 21 (D.D.C. 2009) (quoting Reuber v.

United States, 750 F.2d 1039, 1047 (D.C. Cir. 1984), rev’d on

other grounds, Kauffman v. Anglo-Am. Sch. of Sofia, 28 F.3d 1223

(D.C. Cir. 1994)). Under this standard, venue is proper as to

Attkissons’ FTCA claims in the Eastern District of Virginia and

improper in the District of Columbia.

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 That Ms. Attkisson did her reporting in the District of

Columbia is of little moment in the FTCA venue analysis, as that

journalistic activity is alleged as the motivation for the

tortious electronic infiltration and surveillance activities but

was not itself part of the “activities giving rise to the

[Attkissons’] cause of action.” See Franz, 591 F. Supp. at 378.

Instead, the relevant activities actually giving rise to the

FTCA claims——i.e., “the act[s] . . . complained of,” 28 U.S.C. §

1402(b)——are the electronic infiltration and surveillance in

which the defendants allegedly engaged and which resulted in the

Attkissons experiencing problems with their electronic devices.

See Pls.’ Opp., ECF No. 77 at 19. But even if defendants’

electronic infiltration and surveillance targeting the

Attkissons’ electronic devices originated in or was directed

from defendants’ “headquarters in the District of Columbia,”

id., “the mere involvement on the part of federal agencies, or

some federal officials who are located in Washington D.C. is not

determinative of the question of venue.” Patel v. Phillips, 933

F. Supp. 2d 153, 165 (D.D.C. 2013) (internal quotation marks

omitted). Instead, “[w]hen conduct ‘occurs in one district but

has intended effects elsewhere, the act ‘occurs’ in the

jurisdiction where its effects are directed.’” Id. (quoting

Reuber, 750 F.2d at 1047). Accepting all of the Attkissons’

allegations as true and drawing all reasonable inferences in

11
their favor, see Darby, 231 F. Supp. 2d at 276, the effects of

defendants’ conduct can only be said to have been directed at

the Attkissons’ home in Virginia and not directed at the

District of Columbia.

The Attkissons assert in their opposition brief that their

electronic “devices were transported daily to and from the

District of Columbia, and given that the software used to

infiltrate the mobile devices was contained within the software

wherever the devices traveled, the infiltration occurred in both

Virginia and the District of Columbia.” Pls.’ Opp., ECF No. 77

at 19. But their complaint is entirely devoid of any reference

to their electronic devices moving between the District of

Columbia and Virginia, and “[i]t is axiomatic that a complaint

may not be amended by the briefs in opposition to a motion to

dismiss.” Thomas v. Sotera Def. Sols., Inc., 40 F. Supp. 3d 181,

185 (D.D.C. 2014) (internal quotation marks omitted). In any

event, even if the Attkissons’ opposition brief could be used to

amend their complaint to allege that their electronic devices

moved regularly between the District of Columbia and Virginia,

the Attkissons explicitly limit the effects of defendants’

tortious “cyber-attacks” to those harms related to their

electronic devices that they “suffered in [their] home.” Compl.,

ECF No. 4 ¶ 66 (emphasis added). Thus, repeatedly in their

complaint, the Attkissons allege anomalous activity related to

12
their electronic devices occurring in their Virginia home

without once alleging similar anomalous activity occurring in

the District of Columbia. See id. ¶ 23 (“In mid-to-late 2011,

[the Attkissons] began to notice anomalies in numerous

electronic devices at their home in Virginia. . . . All of the

referenced devices use the Verizon FiOS line installed in Ms.

Attkisson’s home.”), ¶ 25 (“In January, 2012, Ms. Attkisson

contacted Verizon about ongoing internet problems and

intermittent connectivity because the residential internet

service began constantly dropping off.”), ¶ 27 (“The forensic

analysis likewise revealed direct targeting of Plaintiffs’

Blackberry mobile phone when connected to the [desktop

computer].”), ¶ 37 (“In the later part of October 2012, [the

Attkissons] began noticing an escalation of electronic problems

at their personal residence, including interference in home and

mobile phone lines, computer interference, and television

interference.”), ¶ 43 (“In December, 2012, a contact with U.S.

government intelligence experience conducted an inspection of

Ms. Attkisson’s exterior home.”), ¶ 57 (“In September, 2013,

while Ms. Attkisson continued working on the Benghazi story at

her home in the evening, she observed for the first time that a

third computer, her personal MacBook Air, was accessed remotely,

controlled, and the data deleted.”). To the extent that the

Attkissons’ complaint could be read very liberally to allege

13
anomalous activity associated with their electronic devices

occurring away from their Virginia home and in the District of

Columbia, see id. ¶ 40 (“[Ms. Attkisson’s] mobile phones also

experienced regular interruptions and interference . . . .”),

those allegations are “insubstantial in relation to the totality

of events giving rise to [the Attkissons’] grievance.” See

Franz, 591 F. Supp. at 378 (internal quotation marks omitted);

see also Sanchez, 600 F. Supp. 2d at 23 (finding venue improper

in the District of Columbia as to FTCA claims when the

“gravamen” of the acts or omissions complained of occurred

outside the District of Columbia). Accordingly, because almost

all——if not all——of the effects of defendants’ alleged tortious

electronic infiltration and surveillance fell upon the

Attkissons in Virginia, venue as to the FTCA claims is proper

there and improper here.

Defendants do not challenge the Attkissons’ other, non-FTCA

claims on improper venue grounds, and the Court assumes venue is

proper in this Court as to those claims. Pursuant to the

doctrine of pendent venue, “federal courts may exercise their

discretion to hear claims as to which venue is lacking if those

claims arise out of a common nucleus of operative facts as the

claims that are appropriately venued and the interests of

judicial economy are furthered by hearing the claims together.”

Sierra Club v. Johnson, 623 F. Supp. 2d 31, 37 (D.D.C. 2009).

14
“However, that doctrine does not apply where, as here, the

improperly venued claims are subject to a specific venue

statute.” Yuanxing Liu, 2015 WL 9281580, at *3 (citing id.).

Relying on the pendent venue doctrine where a specific venue

provision is applicable is inappropriate because doing so would

contravene Congress’s clear intent to limit the districts in

which certain claims may be heard. See Sierra Club, 623 F. Supp.

2d at 38; Boggs v. United States, 987 F. Supp. 11, 18-19 (D.D.C.

1997) (refusing to use the pendent venue doctrine in the context

of a FTCA claim because doing so would “place this court in the

position of circumventing otherwise clear congressional intent

as to where FTCA claims are to be heard”). Accordingly, the

Court will not exercise its discretion to apply the pendent

venue doctrine as to the FTCA claims here.

Having determined that venue is improper as to the

Attkissons’ FTCA claims and that the pendent venue doctrine is

inapplicable, the Court may either “dismiss, or if it be in the

interest of justice, transfer [this] case to any district or

division in which it could have been brought.” 28 U.S.C. §

1406(a). “The decision whether a transfer or a dismissal is in

the interest of justice . . . rests within the sound discretion

of the district court,” Naartex Consulting Corp. v. Watt, 722

F.2d 779, 789 (D.C. Cir. 1983), but the “standard remedy for

improper venue is to transfer the case to the proper court

15
rather than dismissing it——thus preserving a [plaintiff’s]

ability to obtain review.” Nat’l Wildlife Fed’n v. Browner, 237

F.3d 670, 674 (D.C. Cir. 2001). The Court will use that standard

remedy here and find that the interest of justice warrants

transfer rather than dismissal so that the Attkissons’ claims

can be adjudicated on the merits. And although it appears that

the Attkissons’ non-FTCA claims are properly venued in the

District of Columbia, the Court will transfer the entirety of

this consolidated case to the Eastern District of Virginia “to

ensure that the claims are all heard together in the interest of

preserving judicial and party resources.” See Yuanxing Liu, 2015

WL 9281580, at *3; Coltrane v. Lappin, 885 F. Supp. 2d 228, 237

(D.D.C. 2012) (noting that it is “common in this Circuit” to

transfer the entirety of the case when some but not all claims

are improperly venued here); see also Ashbourne v. Geithner,

Nos. 11-2818, 11-3199, 11-3456, 2012 WL 2874012, at *5 (D. Md.

July 12, 2012) (transferring the entirety of a consolidated case

when venue was improper as to only certain claims to “avoid

piecemeal litigation”).

III. Conclusion

For the reasons stated above, defendants’ amended motion to

dismiss is GRANTED IN PART and DENIED IN PART WITHOUT PREJUDICE.

As to their assertion that the Attkissons’ FTCA claims are

improperly venued, defendants’ motion is granted. Accordingly,

16
this consolidated case shall be transferred in its entirety to

the United States District Court for the Eastern District of

Virginia. The remainder of defendants’ amended motion to dismiss

is denied without prejudice so that defendants may refile it, if

appropriate, upon transfer to the Eastern District of Virginia.

Likewise, the Attkissons’ motion for reconsideration of the

Order denying various motions related to third-party discovery

is DENIED WITHOUT PREJUDICE so that it may be refiled in and

more appropriately resolved by the transferee court. An

appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan
United States District Judge
March 19, 2017

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