United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 8, 2009 Decided November 17, 2009
No. 07-5080
SCOTT TOOLEY,
APPELLANT
v.
JANET ANN NAPOLITANO, HOMELAND SECURITY SECRETARY,
IN HER OFFICIAL CAPACITY, ET AL.,
APPELLEES
On Petition for Rehearing
Lori Alvino McGill, appointed by the court, argued the
cause as amicus curiae in support of appellant. With her on
the briefs were Richard P. Bress and Gabriel K. Bell,
appointed by the court.
Teal Luthy Miller, Attorney, U.S. Department of Justice,
argued the cause for appellees. With her on the brief was
Douglas N. Letter, Attorney.
Before: SENTELLE, Chief Judge, TATEL, Circuit Judge,
and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
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WILLIAMS, Senior Circuit Judge: This is the second time
we review the district court’s dismissal of the complaint in
Tooley v. Bush, No. 06-306, 2006 WL 3783142 (D.D.C.2006).
After our initial consideration of the case, in Tooley v.
Napolitano, 556 F.3d 836 (D.C.Cir. 2009), the government
sought and we granted a rehearing in light of Ashcroft v.
Iqbal, 129 S. Ct. 1937 (2009).
In Iqbal the Supreme Court applied its ruling on pleading
standards in Bell Atlantic v. Twombly, 550 U.S. 544 (2007).
See, e.g., 129 S.Ct. at 1949. The government argues that
Iqbal extended Twombly, thus invalidating a construction of
Twombly previously advanced by this court in Aktieselskabet
AF 21 November 2001 v. Fame Jeans, 525 F.3d 8 (D.C. Cir.
2008). While we do not reject the government’s argument,
upon reflection we believe that we should affirm the district
court in this case for reasons distinct from but not inconsistent
with the holding in Iqbal.
According to his complaint, Scott Tooley phoned
Southwest Airlines in the spring of 2002 to buy tickets to visit
family members in Nebraska. At the end of the call, after
Tooley had provided Southwest with his name and contact
information, the representative asked him if he had any
“comments, questions, or suggestions.” Compl. ¶ 18. Having
been a candidate for elective office and worked on Capitol
Hill, Tooley “[u]tiliz[ed] his security and public policy
experience” to “suggest[] that the airline screen 100 percent of
everything that went into the airline [sic] because he was
incredulous that in the wake of the tragedies of September 11,
2001, cargo was, and still is not, fully screened.” Id. at ¶ 19.
The representative “asked why such a course of action was
necessary.” Id. Tooley “was incredulous that he was ever
asked such a question but patiently responded that without
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proper security, the traveling public . . . was less safe due to
the potential that those who wish to harm American citizens
could put a bomb on a plane.” Id. at ¶ 20. The Southwest
representative “became alarmed and . . . repeatedly said, ‘you
said the “b” word, you said the “b” word.’” Affidavit of Scott
Tooley (Sept. 1, 2006) (“Tooley Aff.”) ¶ 7. Tooley attempted
to explain to the representative that she had not understood
him correctly, but she placed him on hold. After 20 minutes,
Tooley hung up. Id.
According to Tooley, the ticket agent’s seeming paranoia
was not the end of the matter. Other events followed, which
he initially ascribed to six high-level government officials.
The three 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 Transportation Security Administration,
all now sued solely in their official capacities (collectively,
the “government”). See Tooley, 2006 WL 3783142, at *1
(detailing the defendants initially included in Tooley’s
complaint and his later dismissals).
In the fall of 2003, roughly a year and a half after his call
to Southwest, Tooley “began to notice problematic phone
connections, including telltale intermittent clicking noises,
which still continue to this day.” Compl. ¶ 21. He states, on
information and belief, that his telephone problems were
caused by illegal wiretaps, and that the defendants had such
wiretaps placed on at least nine phones connected to him: 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.
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Tooley was visiting his mother for the week.” His complaint
explains that these wiretaps were placed “in response to his
innocent comments” to the Southwest representative. Id. at
¶¶ 21-22; Tooley Aff. ¶¶ 16-17. In an affidavit submitted
after the complaint, Tooley added that from his “experience
on Capitol Hill [he was] aware that wiretaps are pernicious
and insidious because, as long as the phone line is plugged
into the wall in one’s home, those listening to the wiretaps can
hear anything that goes on in the home.” Tooley Aff. ¶¶ 8-9.
Tooley’s complaint goes on to recount additional alleged
government responses to his call to Southwest. Besides the
wiretaps, the government subjected his and his wife’s vehicles
to “Radio Frequency Identification Tags (‘RFITs’) that
monitor their vehicle movements,” effectively subjecting him
and his wife to “round-the-clock surveillance.” Compl. ¶ 23.
And Tooley has been subjected to “detention and strict
search[es]” “every time that [he] traveled prior to filing this
suit.” Tooley Aff. ¶ 14.
Furthermore, in March 2005, in the week before and the
week of a presidential visit to Tooley’s home city of
Louisville, after Tooley began to “routinely and specifically
enumerate[] to [his family members] the serious nature of
various Administration actions that are in no way flattering to
the Administration . . . [,] an officer in a Ford Crown Victoria
sat out in front of [Tooley’s] home for approximately six (6)
hours a day, as a threat of recrimination or persecution of
political speech.” Tooley Aff. ¶¶ 18-19.
In order to obtain more information regarding this alleged
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
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FOIA requests). Believing that the government wrongly
refused to comply with his requests, and seeking relief from
the pattern of surveillance that he discerned, Tooley filed the
present case in the district court. Counts I and II charge
Fourth Amendment and constitutional right-to-privacy
violations, respectively, through the alleged wiretapping,
RFITs and “other surveillance activities.” Compl. ¶¶ 52, 61.
Count III claims that by engaging in all the above wrongs the
defendants deprived Tooley of his First Amendment rights,
“retaliating” against him for his remarks to the Southwest
representative. Id. at ¶¶ 70-71. Count IV sought declaratory
judgment under FOIA. Id. at ¶¶ 80-81.
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. The first two
categories encompassed the alleged wiretapping and physical
surveillance (including the claim that Defendants unlawfully
placed an RFIT on Tooley’s vehicle). Tooley, 2006 WL
3783142, at *22. The court held that Tooley lacked Article III
standing for these 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.
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The district court’s third category was the unlawful
placement of Tooley’s name on a terrorist watch list. As to
that, 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 appeals the
dismissal of the first three counts.
A complaint may be dismissed on jurisdictional grounds
when it “is ‘patently insubstantial,’ presenting no federal
question suitable for decision.” Best v. Kelly, 39 F.3d 328,
330 (D.C.Cir. 1994); see also Bell v. Hood, 327 U.S. 678, 683
(1946); cf. Iqbal, 129 S.Ct. at 1959 (Souter, J., dissenting)
(“The sole exception to th[e] rule [that allegations must be
credited at the pleading stage applies to] allegations that are
sufficiently fantastic to defy reality as we know it: claims
about little green men, or the plaintiff’s recent trip to Pluto, or
experiences in time travel.”). A court need not assess whether
a plaintiff has standing before dismissing on alternative
jurisdictional grounds. See Ruhrgas A.G. v. Marathon Oil
Co., 526 U.S. 574, 578 (1999) (“there is no unyielding
jurisdictional hierarchy”).
Here Tooley claims that about a year and a half after a
conversation with an airline representative the government
launched a massive surveillance program against him,
involving wiretaps on at least nine phones, tracking devices
on Tooley’s and his wife’s cars, an officer stationed outside
his house for a week or more, and other unspecified acts of
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surveillance, all continuing to this day, now seven years after
the initial phone call. Moreover, as alleged by Tooley, the
program was both sloppy—the wiretaps were greatly delayed
after the precipitating event and all were technical busts,
alerting the many victims by giving off clicking sounds—and
well beyond the state of the art, enabling the snoopers “as
long as the phone line is plugged into the wall in one’s home .
. . [to] hear anything that goes on in the home.” Tooley Aff.
¶¶ 8-9 (emphasis added). The alleged motivation, moreover,
was nothing if not bizarre: the defendants, people charged
with protecting the country’s security, allegedly acted out of a
desire to “retaliate” against Tooley for his having offered a
suggestion of additional measures that he claimed would
enhance airline security. Alternatively, some of the
surveillance was evidently to persecute him for remarks
critical of the Bush administration, remarks likely
indistinguishable from those of millions of Americans.
We recognize that in a nation of 300 million people, with
millions of government employees, some are bound at any
given moment to be acting unwisely, foolishly,
counterproductively, mistakenly, maliciously, viciously, even
inanely. But the particular combination of sloth, fanaticism,
inanity and technical genius alleged here seems to us to move
these allegations into the realm of claims “flimsier than
‘doubtful or questionable’— . . . ‘essentially fictitious,’” Best,
39 F.3d at 330 (citing Hagans v. Lavine, 415 U.S. 528, 537
(1974)), not realistically distinguishable from allegations of
“little green men” of the sort that Justice Souter recognized in
Iqbal as properly dismissed on the pleadings. Iqbal, 129 S.Ct.
at 1959 (Souter, J., dissenting). Indeed, the allegations appear
similar to those in a number of cases that district courts have
dismissed for patent insubstantiality: that plaintiff was
subjected to a campaign of surveillance and harassment
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deriving from uncertain origins, either a long past
employment by the FBI or a falling out with roommates even
earlier, Curran v. Holder, 626 F. Supp. 2d 30, 33-34 (D.D.C.
2009); that a U.S. Senator orchestrated a program of hacking
into plaintiff’s personal computer, monitoring his phone calls,
causing a power outage affecting half of Los Angeles, and
tracking him by helicopter, Lewis v. Bayh, 577 F. Supp.2d 47,
54-55 (D.D.C. 2008); and that the Postal Service had
conspired with two persons unconnected to the federal
government (and bearing her surname) to keep her under
surveillance in Postal Service premises by unlawful use of
electronic devices, Delaine v. United States Postal Service,
2006 WL 2687019, *2 (D.D.C. 2006), aff’d No. 06-5321,
2007 U.S. App. LEXIS 7371, unpublished order (D.C. Cir.
June 1, 2007). Because the allegations of Tooley’s complaint
constitute the sort of patently insubstantial claims dismissed in
these and other cases, we conclude that the district court was
correct in its judgment of dismissal.
The judgment of the district court is therefore
Affirmed.