United States District Court, District of Columbia
August 29, 2003
MOHAMED RASHID DAOUD AL-OWHALI, PLAINTIFF,
JOHN ASHCROFT, UNITED STATES ATTORNEY GENERAL, DEFENDANT
The opinion of the court was delivered by: Reggie B. Walton, District Judge
This lawsuit involves a challenge by the plaintiff to regulations promulgated by the defendant that plaintiff alleges violate his rights guaranteed by the Fifth and Sixth Amendments of the Constitution. Because the Court concludes that plaintiff does not have standing to challenge the regulations at issue, it does not reach the merits of plaintiff's claims, and defendant's motion to dismiss the complaint is granted.
The plaintiff, Mohamed Rashid Daoud Al-`Owhali ("Al-`Owhali") is a citizen of Saudi Arabia. Compl. ¶ 4.*fn1 Al-`Owhali was indicted, along with other members of the al Qaeda terrorist organization, in connection with the bombing of the United States embassy located in Nairobi, Kenya. Compl. ¶ 6; Memorandum in Support of Defendant's Motion to Dismiss ("Def.'s Mem.") at 2. He was found guilty by a jury of [ Page 2]
the charges that had been lodged against him and thereafter was sentenced to life imprisonment without the possibility of parole*fn2 by the Honorable Leonard B. Sand of the United States District Court for the Southern District of New York on October 19, 2001.*fn3 Compl. ¶ 6. Al-'Owhali is currently serving his sentence in the United States Penitentiary, Administrative Maximum, located in Florence, Colorado, the "[f]ederal [g]overnment's highest security prison. . . ." Def.'s Mem. at 3.
In accordance with regulations that were promulgated on June 20, 1997, at the direction of the Attorney General, the Director of the Bureau of Prisons, or, upon proper delegation, its Acting Director, has the ability to
authorize the Warden of a federal prison to implement
[Special Administrative Measures ("SAMs")] that are
reasonably necessary to . . . prevent actions of
violence or terrorism where the Attorney General . .
. provides written notification that there is a
substantial risk that a prisoner's communications or
contacts with persons could result in death or serious
bodily injury to persons.
28 C.F.R. § 501.3(a) (2003). A SAM can impose various conditions and restrictions on an inmate, such as requiring that he be housed in "administrative detention" and it may place limitations on various inmate "privileges, including, but not limited to, correspondence, visiting, interviews with . . . the news media, and use of the telephone, [ Page 3]
as is reasonably necessary to protect persons against the risk of acts of violence or terrorism." Id. § 501.3(a). Typically, SAMs are imposed when "there continues to be a substantial risk that [an] inmate's communications or contacts with other persons could result in death or serious bodily injury to persons," i.e., they are designed to "prevent acts of violence and terrorism." Id. § 501.3(c).
Due to the nature of the crime for which the plaintiff was convicted, the Bureau of Prisons ("BOP") enacted SAMs against him, both pre-trial and post conviction, designed to lessen the potential that plaintiff could communicate with others regarding the commission of crimes that could threaten the nation's security. Compl. ¶ 7. For example, during the two years immediately prior to his trial, plaintiff was the subject of SAMs "designed to govern the special security deemed necessary by the Government and the [BOP]." Id. These SAMs were "authorized, supervised, and amended by [a federal] District Judge and were renewed every 120 days." Id. On November 15, 2002, after plaintiff's conviction, a new SAM was issued for the plaintiff, which is presently effective and is renewable annually. Id. ¶ 8. This SAM prohibits plaintiff "from having contract with other inmates and others . . . that could circumvent the SAM's intent of significantly limiting the inmate's ability to communicate . . . terrorist information." Compl., Ex. A (Notification of Special Administrative Procedures dated November 15, 2001), ¶ 1(c). The SAM also contains provisions prohibiting plaintiff from communicating with the news media, id. ¶ 4(a), and from sharing a cell or communicating with other inmates. Id. ¶ 6(a)-(b). Plaintiff alleges that the BOP has [ Page 4]
interpreted this SAM to prevent him from watching television, listening to the radio, reading newspapers, utilizing the law library, taking an English language course, meeting with a Muslim Cleric, or calling his family,*fn4 although these "are all privileges that are accorded to inmates even in [the Florence Colorado] high security prison." Id. ¶ 9. The only justification for these restrictions, plaintiff asserts, "is the prevention of communications that are deemed a threat to the national security." Id.
Despite the above alleged deprivations, the gravamen of plaintiff's challenge is not directed at the SAM that currently covers him. In fact, no relief is being sought based upon the above allegations.*fn5 Rather, plaintiff has filed this lawsuit to specifically challenge regulations promulgated by the defendant on October 31, 2001, which is codified in 28 C.F.R. Pt. 500-501. 28. Specifically, the regulation provides, in pertinent part:
In any case where the Attorney General specifically
so orders, based on information from the head of a
federal law enforcement or intelligence agency that
reasonable suspicion exists to believe that a
particular inmate may use communications with
attorneys or their agents to further or facilitate
acts of terrorism, the Director, Bureau of Prisons,
shall, in addition to the special administrative
[ Page 5]
imposed under paragraph (a) of this section, provide
appropriate procedures for the monitoring or review of
communications between an inmate and attorneys or
attorneys' agents who are traditionally covered by the
attorney-client privilege, for the purpose of
deterring future acts that could result in death or
serious bodily injury to persons, or substantial
damage to property that would entail the risk of death
or serious bodily injury to persons.
28 C.F.R. Pt. 501.3(d); Compl. at 7.*fn6
The regulations further specify, in relevant part, that if a SAM includes a provision that would authorize the monitoring of a prisoner's communications with his attorney, the BOP must notify the prisoner of its intent prior to commencing such monitoring, "[e]xcept in the case of prior court authorization." Id. at § 501.3(d)(2). The relevant part of the regulations regarding the notice requirement provides that:
(2) . . . The notice shall explain:
(i) That . . . all communications between the
inmate and attorneys may be monitored, to the
extent determined to be reasonably necessary for
the purpose of deterring future acts of violence
(ii) That communications between the inmate and
[ Page 6]
or their agents are not protected by the
attorney-client privilege if they would facilitate
criminal acts or a conspiracy to commit criminal
acts. . . .
(3) . . . To protect the attorney-client privilege .
. ., a privilege team shall be designated, consisting
of individuals not involved in the underlying
investigation. The monitoring shall be conducted
pursuant to procedures designed to minimize the
intrusion into privileged material or conversations.
Except in cases where the person in charge of the
privilege team determines that acts of violence or
terrorism are imminent, the privilege team shall not
disclose any information unless and until such
disclosure has been approved by a federal judge.
Id. § 501.3.
Plaintiff alleges that these regulations "are intended to and, in fact do target" him. Compl. ¶ 11. Although the SAM applicable to plaintiff did not contain any provision for the monitoring of plaintiff's attorney-client communications, id. ¶ 7, he argues that "the regulations permit, and the [p]laintiff herein is in danger of, monitoring without notice on an ex parte application to a judge." Id. ¶ 13. Plaintiff is suffering harm, he argues, because he is in the "post-conviction stage of his criminal proceedings" and the monitoring of his attorney-client communications, with or without notice, "chills the attorney-client relationship and deprives the [p]laintiff . . . of the right to discuss any aspect of his case with an attorney and receive honest advice in return." Id. ¶ 15. Plaintiff states that such monitoring, in the absence of "a judicial determination that there is probable cause to believe that the conduct of counsel falls within a recognized exception to the attorney-client privilege is unconstitutional." Id. ¶ 16. Plaintiff therefore seeks a declaration that 28 C.F.R. Pts. 501.2(c) and (e) and 501.3(c), (d) and (e) [ Page 7]
violate his Fifth Amendment right to due process and his Sixth Amendment right to the assistance of counsel. Id. at 11. He also seeks an order enjoining the defendant and his subordinates "from monitoring consultations between [p]laintiff and his attorneys without a judicial determination that there is probable cause to believe that activity is occurring that is not protected by the privilege under procedures guaranteed to protect that right." Id.
II. The Parties' Arguments
Defendant has filed a motion seeking dismissal of the complaint pursuant to Rules 12(b)(1) (lack of subject matter jurisdiction) and 12(b)(6) (failure to state a claim upon which relief can be granted). However, the essence of defendant's arguments are that this Court is without subject matter jurisdiction over plaintiff's claims because (1) plaintiff does not have standing to pursue his challenges, (2) because his claims are not ripe for judicial review, or, alternatively, (3) because plaintiff has failed to exhaust his administrative remedies.
Defendant first argues that the complaint must be dismissed because plaintiff "does not allege a past or current injury, and posits the injury on which he relies as the speculative possibility that the defendant will take a particular regulatory action against him in the future." Def.'s Mem. at 13. Thus, because the alleged injury is speculative, defendant contends that plaintiff lacks standing to advance his challenge. Id. On this point, defendant argues that to the extent plaintiff is alleging that he could be subjected to "surreptitious monitoring of his communications with counsel, that injury is entirely [ Page 8]
speculative[,]" and it is not permitted by the regulations, which require notification of such monitoring. Id. at 14. Further, defendant argues that plaintiff's claim that the regulation has a "chilling effect" on his communications with his attorney must be rejected as insufficient to establish standing in light of Supreme Court and this circuit's precedent. Id. at 19-22. Second, defendant argues that plaintiff's claim is not ripe for judicial review because the regulation he is challenging has not been implemented against him. Id. at 23. The defendant notes that under the ripeness doctrine, the Court must determine that the issue is "fit" for judicial review and that failure to grant judicial review would cause the plaintiff to suffer "irremediable adverse consequences." Id. at 28 (quoting Toilet Goods, Inc. v. Gardner, 387 U.S. 158, 164 (1967)). Defendant contends that plaintiff fails to satisfy either criterion under the ripeness doctrine and therefore this Court should not exercise judicial review of his claims at this time. Id. Finally, the defendant argues that plaintiff's claims must be dismissed because he failed to exhaust his administrative remedies prior to initiating this action as required by the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997(e)(a) (Supp. V 1999). Id. at 32.
In opposition to the defendant's arguments, plaintiff submits that the defendant is attempting to use the "familiar scare tactic of `Global Terrorism'" as an excuse for intruding into plaintiff's "well recognized constitutionally protected rights." Plaintiff's Memorandum in Opposition to Defendant's Motion to Dismiss ("Pl.'s Opp'n") at 6. Regarding standing, plaintiff argues that he has standing because "[a]t least one effect of the monitoring is to turn the parties to the conversation into targets." Id. at 7-8 (footnote [ Page 9]
omitted). Thus, because they are unaware of exactly what communications will trigger monitoring, both plaintiff and his attorneys "will be careful to the edge of paranoia about the information" they share with one another. Id. at 8. Plaintiff opines that this "chilling effect" that has been engendered by the regulation is a sufficiently cognizable injury to satisfy the standing requirement. Id. (citing National Student Association v. Hershey, 412 F.2d 1103, 1119 (D.C. Cir. 1969)). Second, plaintiff argues that his claim is ripe for judicial review because there are no remaining facts that need to be developed and his ability to communicate with his attorney is currently being chilled by the regulation. Id. at 12-13. Finally, plaintiff argues that he was not required to exhaust his administrative remedies prior to initiating this lawsuit because the PLRA only applies to challenges concerning "jail conditions," and even if the monitoring is a "jail condition" he would not be obliged to exhaust his administrative remedies "until notice of intention to monitor [is] given." Id. at 13. Plaintiff also asserts that the BOP is "powerless to vacate a monitoring order promulgated by the Attorney General or his lawful delegates" and therefore exhausting his administrative remedies would have been futile. Id.
A. Standard of Review
Although defendant states in his motion that he is seeking dismissal pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), dismissal, if warranted, could be entered solely on Rule 12(b)(1) grounds. "The distinctions between 12(b)(1) and 12(b)(6) [ Page 10]
are important and well understood. Rule 12(b)(1) presents a threshold challenge to the court's jurisdiction, whereas 12(b)(6) presents a ruling on the merits with res judicata effect." Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987) (citation omitted). Defendant's challenges to plaintiff's complaint raise questions only concerning whether this Court has subject matter jurisdiction because they challenge whether plaintiff has standing to raise the claims he is asserting, whether such claims are ripe for judicial review, and whether plaintiff has exhausted his administrative remedies. These challenges all challenge the Court's authority to exercise subject matter jurisdiction over the dispute in this matter, which does not implicate Rule 12(b)(6).
"In order to properly dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the complaint must be successfully challenged on its face or on the factual truthfulness of its averments." Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993) (citations omitted). A facial challenge attacks "the factual allegations of the complaint" that are contained on "the face of the complaint," while a factual challenge is addressed to the underlying facts contained in the complaint. Loughlin v. United States, 230 F. Supp.2d 26, 35-36 (D.D.C. 2002) (citations omitted). "A motion to dismiss under 12(b)(1) for lack of standing . . . involves an examination of the face of the complaint . . . [,]" Haase, 835 F.2d at 908, whereas challenges regarding ripeness or failure to exhaust administrative remedies can be either facial or factual challenges. See, e.g., Hearns Concrete Constr. Co. v. City of Ypsilanti, 241 F. Supp.2d 803, 810 (E.D. Mich. 2003) ("A Rule 12(b)(1) attack that is facial in nature, i.e., that . . . does not dispute the facts underlying the [ Page 11]
ripeness of the complaint . . . as opposed to [a] factual [challenge], is a direct attack on . . . both the sufficiency of the pleadings and the subject matter jurisdiction of the challenged court.") (citations omitted); Starr v. Runyon, No. Civ.A. 94-5413, 1995 WL 455840, at *3 (E.D. Pa. July 28, 1995) (noting that because "the court ha[d] reviewed materials outside of the plaintiff's complaint in determining [the defendant] motion, defendant's argument concerning plaintiff's failure to exhaust his administrative [was] deemed a factual 12(b)(1) attack.").
In this case, defendant argues that, from the face of the complaint, plaintiff cannot pursue his challenges because he acknowledges that the regulation he is challenging has not been applied to him. Defendant further posits that even if the regulation had been implemented against plaintiff, he has not exhausted his administrative remedies, as he is required to do, prior to initiating this lawsuit. Because these challenges, like any jurisdictional challenge, "imposes on the court an affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority," Grand Lodge of the Fraternal Order of Police v. Ashcroft, 185 F. Supp.2d 9, 13 (D.D.C. 2001), the "`plaintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Id. at 13-14 (citations omitted). When reviewing a challenge pursuant to Rule 12(b)(1), the Court may consider documents outside the pleadings to assure itself that it has jurisdiction. See Land v. Dollar, 330 U.S. 731, 735 n. 4 (1947); Haase, 835 F.2d at 906 ("In 12(b)(1) proceedings, it has been long accepted that the judiciary may make `appropriate [ Page 12]
inquiry' beyond the pleadings to `satisfy itself on authority to entertain the case.'") (citations omitted); Artis v. Greenspan, 223 F. Supp.2d 149, 152 (D.D.C. 2002) ("A court may consider material outside of the pleadings in ruling on a motion to dismiss for lack of venue, personal jurisdiction, or subject-matter jurisdiction.") (citation omitted). The Court may only consider such additional evidence "to assure itself of the existence of standing." Haase, 835 F.2d at 907. By considering documents outside the pleadings when reviewing a motion to dismiss pursuant to Rule 12(b)(1), the Court does not convert the motion into one for summary judgment; "the plain language of Rule 12(b) permits only a 12(b)(6) motion to be converted into a motion for summary judgment" when documents extraneous to the pleadings are considered by a court. Haase, 835 F.2d at 905 (emphasis in original). Throughout the Court's jurisdictional inquiry, it is plaintiff's burden to establish that the Court has jurisdiction. Grand Lodge, 185 F. Supp.2d at 13 (citation omitted).
Pursuant to Article III, section two of the United States Constitution, this Court has jurisdiction over "all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; — [and] . . . Controversies to which the United States shall be a Party[.]" The Court's limited jurisdictional authority requires litigants to demonstrate that they have standing to assert their claims in federal court. Lujan v. Defenders of Wildlife, [ Page 13]
504 U.S. 555, 560 (1992). To establish standing,*fn7 plaintiffs must satisfy the following three-part test:
First, the plaintiff must have suffered an `injury in
fact' — an invasion of a legally protected
interest which is (a) concrete and particularized . .
. and (b) `actual or imminent, not `conjectural or
hypothetical[.]' Second, there must be a causal
connection between the injury and the conduct
complained of — the injury has to be `fairly
trace[able] to the challenged action of the
defendant, and not . . . th[e] result [of] the
independent action of some third party not before the
court. . . . Third, it must be `likely' as opposed to
merely `speculative' that the injury will be
`redressed by a favorable decision.'
Id. at 560-61 (citations omitted). It is the burden of the party seeking to invoke federal jurisdiction to establish the existence of these elements. Id. at 561 (citation omitted).
Regarding the nature of the injury necessary for a party to have standing, such injury must be concrete. See City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983) [ Page 14]
("[p]laintiffs must demonstrate a `personal stake in the outcome' in order to `assure that concrete adverseness which sharpens the presentation of issues' necessary for the proper resolution of constitutional questions."). This component of standing requires a plaintiff to demonstrate that "he `has sustained or is immediately in danger of sustaining some direct injury' as the result of the challenged official conduct and the injury or threat of injury must be both `real and immediate' . . ." Id. at 102 (citations omitted). Plaintiff Al-'Owhali concedes that 28 C.F.R. Pt. 501.3(d), which authorizes the monitoring of attorney-client communications, has not to his knowledge been applied to him. See Compl. ¶ 7 (" The SAMs in force during his pre-conviction incarceration did not contain any provision for the monitoring of conversations between the [p]laintiff herein. Plaintiff has no knowledge whether there was covert monitoring, either by ex parte order or otherwise."); ¶ 13 ("[N]o notice of intention to monitor counsel's conversations has yet been given . . . ."). However, he nonetheless argues that he has been injured by the "chilling effect" that the regulation has and will continue to have on his communications with his attorney. Compl. ¶ 15; Pl.'s Opp'n at 8. Plaintiff relies on National Student Ass'n v. Hershey, 412 F.2d 1103 (D.C. Cir. 1969), for his contention that "such chilling effect has been recognized as an injury within the meaning required for standing." Pl.'s Opp'n at 8. The Court disagrees.
In Hershey, the plaintiffs, who were "fifteen college student-body presidents, the president of the University Christian Movement, and three national student organizations," brought suit challenging "the celebrated `Hershey directive' of October, [ Page 15]
1967." Id. at 1105. This directive, which was actually a letter from the Selective Service Director, General Hershey, essentially provided that deferment of military service should not be granted to those registrants who committed "`any action' violative of the Secret Service Act, regulations, or `related processes'" as such acts would be "patently contrary to the national interest. . . ." Id. Plaintiffs challenged three facets of this directive,*fn8 arguing that the directive had a "chilling effect" on their "protected [rights to] protest" because "as student political associations substantially committed to anti-war or anti-draft activities. . . ." they engaged in such protected conduct. Id. at 1106.
However, "none of [the plaintiffs] . . . claim[ed] to have been classified or processed by a draft board." Id. at 1107. Nonetheless, the court held that plaintiffs had standing to challenge the deferment policy of the directive, which announced "a policy of denying [ Page 16]
relief from the obligation of military service to those who engaged in illegal conduct which [did] not violate the Selective Service Act or regulations." Id. at 1117. The court reached this conclusion because although the deferment policy being challenged was "expressly directed only at `illegal' demonstrations and interference . . . the Hershey directive neither said nor meant that war protesters were to be reclassified only after a conviction for a violation of a statute which the courts have found to be consistent with the First Amendment." Id. at 1118. The potential reach of the directive caused the court to conclude that "it [could] deter not merely validly proscribed conduct, but any protest activity which a registrant could plausibly expect his draft board to think unprotected or illegal." Id. at 1118. Therefore, "the deferment policy expressly single[d] out from the infinite range of illegal conduct specific kinds of illegal acts — namely, those commonly performed by war protesters — for special treatment." Id. at 1119. This resulted in "an element of specificity to the threat of enforcement and . . . accentuate[d] its potential chilling effect on protected expression." Id. The court noted that "the chill of the Hershey directive's deferment policy may [have] spread indefinitely without any judicial determination of its legality." Id. Therefore, the court held that the plaintiffs had standing to challenge the directive because "the appellant organizations [were] all associations of college students [whose] memberships include[d] vast numbers of men who [were] both subject to the draft and presently deferred from immediate service." Id. at 1120.
As a predicate for the Hershey court's standing ruling, the court observed that "it [ Page 17]
appears that suits alleging injury in the form of a chilling effect may be more readily justiciable than comparable suits not so affected with First Amendment interest." Id. at 1113 (footnote omitted). However, even in the First Amendment context, the Hershey court recognized that "for a number of reasons we are not persuaded that every plaintiff who alleges a First Amendment chilling effect and shivers in court has thereby established a case or controversy." Id. at 1113-14. And particularly noteworthy to this Court's analysis here was the Hershey court's acknowledgment that although
a plaintiff need not invariably wait until he has been
successfully [and] . . . directly subjected to the
force of a law or policy before he may challenge it in
court . . . [,] the mere existence of a statute,
regulation, or articulated policy is ordinarily not
enough to sustain a judicial challenge, even by one
who reasonably believes that the law applies to him
and will be enforced against him according to its
Id. at 1110 (emphasis added).
Unlike the clear and present danger in Hershey, no such danger is present here. The regulation plaintiff is challenging clearly requires that as soon as a SAM monitoring a prisoner's attorney-client conversations is imposed, the prisoner must be notified of that fact and afforded the opportunity to challenge that decision, absent a court order suspending the notification requirement.*fn9 Moreover, in cases decided after Hershey, [ Page 18]
and which are more analogous to the situation currently before the Court, the Supreme Court and the District of Columbia Circuit have held that a "chilling effect" was not sufficient, in and of itself, to establish standing. See Laird v. Tatum, 408 U.S. 1, 14 (1972); United Presbyterian Church v. Reagan, 738 F.2d 1375, 1378 (D.C. Cir. 1984).
In Laird, the Supreme Court held that the plaintiffs, who had filed an action seeking a judicial declaration that the "Army's alleged `surveillance of lawful and peaceful civilian political activity'" was unconstitutional, lacked standing to assert their claims. 408 U.S. at 2. The surveillance that was being challenged essentially consisted of "the collection of information about public activities that were thought to have at least some potential for civil disorder. . . ." Id. at 6. The main sources of the information that was being collected came from "the news media and publications in general circulation." Id. The plaintiffs argued that they were "chilled" in the exercise of their First Amendment rights as a result of this surveillance. Id. at 11. The Court noted that a number of its recent decisions had held that "constitutional violations may arise from the deterrent, or `chilling' effect of governmental regulations that fall short of a direct prohibition against [ Page 19]
the exercise of First Amendment rights." Id. at 11 (citations omitted). However, in concluding that the Laird plaintiffs were without standing to pursue their claims, the Court emphasized that
In none of these cases . . . did the chilling effect
arise merely from the individual's knowledge that a
governmental agency was engaged in certain activities
or from the individual's concomitant fear that, armed
with the fruits of those activities, the agency might
in the future take some other and additional action
detrimental to that individual. Rather, in each of
these cases, the challenged exercise of governmental
power was regulatory, proscriptive, or compulsory in
nature, and the complainant was either presently or
prospectively subject to the regulations,
proscriptions, or compulsions that he was
Id. at 11.
The District of Columbia Circuit further provided further elucidation on the type of injury required for a "chilling effect" to confer standing to a plaintiff in Reagan. There, the plaintiffs were "political and religious organizations, private individuals assertedly active in political, religious, academic or journalistic affairs, and a Member of Congress." Id. at 1377. The plaintiffs challenged an Executive Order, issued by then-President Reagan, that provided, in part, that agency heads had to report potential violations of criminal laws by their employees to the Attorney General and were required to report "`any intelligence activities of their organizations that they [had] reason to believe may be unlawful'" to the Executive Branch's Intelligence Oversight Board. Id. (quoting regulations). The plaintiffs asserted that they suffered two types of injury as a result of the order that supported their position that they had standing: [ Page 20]
(1) the `chilling' of constitutionally protected
activities which they may refrain from pursuing out of
fear that such activities would cause them to be
targeted for surveillance under the order; and (2) the
immediate threat of being targeted for surveillance,
and being thereby deprived of legal rights, especially
those under the First, Fourth and Fifth Amendments.
Id. The district court dismissed plaintiff's claims for lack of standing, except for the claims of the Member of Congress.*fn10
On appeal, the circuit court affirmed the district court's lack of standing ruling. The court held that pursuant to the Supreme Court's holding in Laird, 408 U.S. at 2, the plaintiffs' alleged harm resulting from the "`chilling effect' which [was] produced by their fear of being subjected to illegal surveillance and which deters them from conducting constitutionally protected activities, [was] foreclosed as a basis for standing. . . ." Id. at 1378. The court stated that cases that have found a "chilling effect" sufficient to support standing had "involve[d] situations in which the plaintiff has unquestionably suffered some concrete harm (past or immediately threatened) apart from the `chill' itself." Id. The court further explained that the
`[c]hilling effect' is cited as the reason why the
governmental imposition is invalid rather than as the
harm which entitles the plaintiff to challenge it. In
fact, some who have successfully challenged
governmental action based on `chilling effect' grounds
have themselves demonstrably not suffered the harm of
any chill, since they went ahead and violated the
governmental proscription anyway.
[ Page 21]
Id. at 1378-79 (emphasis in original) (citation omitted). The actual harm of a "chilling effect," the court stated, must be "distinguished from the immediate threat of concrete, harmful action." Id. at 1380. It is only the latter, the court held, that will support standing. Id. The court distinguished Hershey, on which the plaintiffs relied, stating that "[i]f Hershey establishes any principle beyond those described in [Laird v.] Tatum, it is only that we will take a more generous view of what it means to be `prospectively subject' to a compulsion (in that case, induction into the military) where judicial review of the compulsion itself is precluded by statute." Id. at 1379 (citing Hershey, 412 F.2d at 1119). Thus, the court rejected the plaintiffs' claims that they had standing "because (1) they ha[d] been subjected to unlawful surveillance in the past and (2) their [current] activities [put them at greater risk] such that they [were] especially likely to be targets of the unlawful activities authorized by the order." Id. The court, in rejecting these arguments, stated:
Even if it were conceded that these factors place the
plaintiffs at greater risk than the public at large,
that would still fall far short of the `genuine
threat' required to support this theory of standing .
. . as opposed to mere `speculative' harm . . . It
must be borne in mind that this order does not direct
intelligence gathering activities against all persons
who could conceivably come within its scope, but
merely authorizes them. To give these plaintiffs
standing on the basis of threatened injury would be to
acknowledge, for example, that all churches would have
standing to challenge a statute which provides that
search warrants may be sought for church property if
there is reason to believe that felons have taken
refuge there. That is not the law.
[ Page 22]
Id. (emphasis in original).
Similar to the plaintiffs' position in Reagan, plaintiff here argues that he has standing because of the "chilling effect" the attorney-monitoring regulation has on his ability to communicate with his attorney. As alleged by the plaintiffs in Reagan, plaintiff here alleges that the "effect of the monitoring is to turn the parties to the conversation into targets." Pl.'s Opp'n at 8; Reagan, 738 F.2d at 1380. However, plaintiff's "[a]llegations of a subjective `chill' are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm. . . ." Laird, 408 U.S. at 13-14 (citation omitted).*fn11 The regulation at issue does not "direct" that plaintiff's conversations with his attorney be monitored; it "merely authorizes" that such action can be taken in the future. See Reagan, 738 F.2d at 1380 ("The problem with the appellants' attempt to rely upon this sort of harm to establish standing in the present case is that they have not adequately averred that any specific action is threatened or even contemplated against them."). Plaintiff merely asserts that he is "within the class of persons subject to monitoring[,]" not that he has actually been the subject of such monitoring. Thus, the posture of plaintiff's situation does not afford him standing to challenge the monitoring [ Page 23]
The cases cited by plaintiff regarding challenges to the "facial constitutionality" of a statute, do not change the Court's conclusion. See Pl.'s Opp'n at 9. For example, in United Presbyterian Church v. United States, 870 F.2d 518 (9th Cir. 1989), several churches brought suit against the federal defendants "claim[ing] that the defendants violated the First Amendment by abridging the churches' right to [the] free exercise of religion and their freedom of belief, speech and association." Id. at 521. This claim was predicated on the fact that agents of the Immigration and Naturalization Service ("INS") had actually "entered the churches wearing `body bugs' and surreptitiously recorded church services." Id. at 520. Under these circumstances, the Ninth Circuit held that the church had standing to pursue its claims. Id. at 521. Specifically, the court held that the plaintiffs
ha[d] alleged actual injuries as the result of the
INS' conduct. For example, they allege[d] [that as a
result of the surveillance of worship services,
members ha[d] withdrawn from active participation in
the churches, a bible study group ha[d] been canceled
for lack of participation, clergy time ha[d] been
diverted from regular pastoral duties, support for the
churches ha[d] declined, and congregants ha[d] become
reluctant to seek pastoral counseling and [were] less
open in prayers and confessions.
Id. at 521-22. Thus, unlike the present case, the plaintiffs in United Presbyterian had suffered concrete harm as a result of the defendants' surveillance activities; they did not just allege that they were suffering a "chilling effect" based on the potential of being monitored as the plaintiff asserts. [ Page 24]
Similarly, in Ozonoff v. Berzak, 744 F.2d 224, 225 (1st Cir. 1984), the court held that the plaintiff had standing to challenge an executive order that required a "loyalty check" be performed on applicants for employment with the World Health Organization ("WHO"). Notably, the plaintiff, Doctor David Ozonoff, had previously undergone a loyalty check when he performed work for WHO in the past. Id. at 227. He challenged the executive order requiring him to undergo a second check because "the previous investigation . . . intruded upon his privacy and injured his reputation." Id. Further, he asserted "that the loyalty screening program inhibit[ed] him from joining the organizations he wishe[d] to join and from expressing views or opinions that he may hold." Id. In holding that the plaintiff had suffered actual injury, the First Circuit stated that the plaintiff, "[a]s one who ha[d] worked for WHO in the past and who ha[d] filed an employment application again seeking work . . .[,] may feel constrained to bring his conduct into conformity with the standards that the Order contains." Id. at 228. Thus, unlike the plaintiff here, the plaintiff in Ozonoff had actually been impacted by the alleged unlawful order in the past. Moreover, the Ozonoff court also held that the order was
vague enough and general enough to suggest that a
serious effort to comply would have an effect —
a `chilling effect' — upon what Dr. Ozonoff says
or does, particularly since his behavior in the past
was evidently sufficient to trigger a full scale,
rather than a cursory, investigation of his
associations and activities.
Id. The court rejected the defendants' reliance on Laird, stating that the Supreme Court [ Page 25]
in Laird distinguished that case from cases where standing had been found to exist, namely, situations "in which the government in effect forced an individual to choose between either (1) bringing his speech or associational activity into conformity with a (typically vague) standard or (2) risking loss of an employment opportunity (or a job)." Id. at 229 (citations omitted). The First Circuit concluded that the case before it "thus resembles, not Laird, in which the Court found no standing, but rather, the cases that Laird distinguished, where standing was found." Id.*fn12
Plaintiff's reliance on Bykofsky v. Borough of Middletown, 389 F. Supp. 836 (M.D. Pa. 1975), is also fallacious. In Bykofsky, a parent "on her own behalf and on behalf of her son, a twelve year old minor . . ." sought a ruling from the district court "declar[ing] unconstitutional and enjoin[ing] the enforcement of a criminal ordinance . . . which impose[d] a curfew on children under the age of sixteen." Id. at 839. The ordinance authorized the imposition of a ten day prison sentence against the parents of a child who repeated a violation of the ordinance if the parent failed to pay a mandatory fine [ Page 26]
for a repeat violation, provided the parent had been apprised of the earlier transgression. Id. at 840. On the plaintiffs' motion for a preliminary injunction, which the court ultimately denied, the Bykofsky court rejected the defendants' argument that the plaintiffs lacked standing because "the ordinance ha[d] never been enforced against either plaintiff. . . ." Id. at 841. The court stated that
[u]nlike in Laird [sic], the plaintiffs in the instant
case are presently subject to an ordinance which,
according to the testimony of . . . the Chief of
Police of Middletown, is always enforced and was in
fact enforced 16 times in 1973 and 11 times in 1974.
. . . Thus, in contrast with the claims asserted in
the Laird [sic] case, the deterrent effect complained
of here is one which is grounded in a realistic fear
of prosecution if the plaintiffs undertake the conduct
proscribed by the ordinance. . . . The criminal
ordinance applies to and will be invoked against the
plaintiffs [if] the minor plaintiff, age 12, is
present upon the public streets, highways, alleys,
parks, or other public places of Middletown after
10:30 P.M. The plaintiffs, therefore, assert a
sufficiently direct threat of personal detriment.
Id. at 841 (citations omitted). Thus in Bykofsky there was certainty that the challenged ordinance would be enforced against the plaintiffs if it was violated. Here, however, the SAM plaintiff challenges might never be enforced against him, as there are numerous contingencies that must first occur. On the other hand, for the parent and the minor plaintiff in Bykofsky, there was no question that they would suffer the effects of the ordinance since the parent was the precise target of the ordinance's scope if her son committed a repeat violation of the ordinance. Here, defendant may never invoke attorney-monitoring regulation plaintiff is attempting to challenge.
Finally, the Court notes that its standing analysis is not altered by the fact that the [ Page 27]
plaintiff's claim has been filed pursuant to the Declaratory Judgment Act. A declaratory judgment cannot be issued "when the possibility of the injury's occurring is remote and uncertain." Lampkin v. Connor, 360 F.2d 505, 509 (D.C. Cir. 1966); Atlas Air, Inc. v. Air Line Pilots Assoc., 232 F.3d 218, 227 (D.C. Cir. 2000) ("[u]nder the Declaratory Judgment Act, a dispute `must not be nebulous or contingent but must have taken on fixed and final shape.") (citations omitted). Therefore, because the Court concludes that plaintiff has not alleged a sufficient injury in fact to support the Court conferring standing to him, his attempt to challenge the attorney-monitoring regulation must be rejected.
In accordance with the Court's Memorandum Opinion issued contemporaneously with this Order, it is hereby
ORDERED that defendant's motion to dismiss the complaint [#4] is granted. It is further
ORDERED that this matter is dismissed.