The opinion of the court was delivered by: Richard W. Roberts United States District Judge
Seven plaintiffs sued defendant Carla Martin under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging that Martin deprived them of their constitutional rights to access to the courts and to a fair trial. After the seven cases were consolidated, Martin moved to dismiss the complaint claiming that plaintiffs lack standing and fail to state a claim upon which relief may be granted. While plaintiffs possess standing to pursue their claims, they have not stated a claim for relief, and Martin's motion to dismiss will be granted.
Plaintiffs claim that Martin, a former employee of the Department of Transportation and the Department of Homeland Security, conspired to destroy, cover up, and tamper with evidence in two separate proceedings. A current consolidated proceeding involving plaintiffs is a wrongful death action, related to the September 11, 2001 attacks, against various airline company defendants pending in federal district court for the Southern District of New York before Judge Alvin Hellerstein. During that proceeding, the Transportation Security Administration ("TSA") intervened to protect unauthorized disclosure of Sensitive Security Information ("SSI"). After allowing plaintiffs' attorneys possessing the necessary security clearance to be granted conditional access to SSI, TSA reneged on this position. In response to Judge Hellerstein's request, TSA issued final orders denying conditional disclosure of SSI and requiring that all discovery requests potentially implicating SSI be filtered through the TSA. Judge Hellerstein determined that he was without jurisdiction to review TSA's final orders. (Def.'s Mot. to Dismiss, Ex. 3 (part 1), Order at 15-16.) Plaintiffs allege that Martin, as part of the TSA, interfered with the wrongful death action by improperly labeling discoverable documents and evidence as SSI and "otherwise causing the unavailability of information which was previously public," preventing plaintiffs from engaging in discovery. (Compl. ¶ 30(f), (i).)
Plaintiffs also assert that Martin coached "witnesses, and otherwise attempted to shade and alter evidence" in the criminal case of United States v. Moussaoui filed in the federal district court for the Eastern District of Virginia before Judge Leonie Brinkema. (Compl. ¶ 30(l).) Judge Hellerstein ruled that he could not address that TSA conduct (Compl., Ex. B), but Judge Brinkema determined that Martin's involvement with witnesses violated judicial orders and that her actions were "not capable of being authorized by her position in government." (Compl. ¶ 32.) The judge thereafter excluded certain witnesses from testifying in that criminal trial. (Pls.' Opp'n to Def.'s Mot. to Dismiss ("Pls.' Opp'n") at 3.) Plaintiffs, as intervenors in the Moussaoui action (see Def.'s Mot. to Dismiss, Ex. 4, Mot. to Intervene), sought to gain access to portions of the record, namely evidence relating to aviation security (see Pls.' Opp'n, Ex. A), to use in their wrongful death action. Their request was denied as moot as to all publicly available evidence and granted as to all evidence to be placed before the jury, and all non-classified and non-SSI information produced by the government to the defense as discovery material. (Def.'s Mot. to Dismiss, Ex. 4, Order of 4/7/06.) On the government's appeal, the United States Court of Appeals for the Fourth Circuit reversed, holding that Judge Brinkema lacked authority to require the government "to provide non-public criminal discovery materials to victims for their use in civil litigation against third parties in a different jurisdiction." United States v. Moussaoui, 483 F.3d 220, 233, 239 (4th Cir. 2007). Thus, the government has not turned over the requested discovery from Moussaoui for use in the wrongful death litigation.
Plaintiffs filed the instant Bivens action seeking damages and injunctive relief, claiming that they possess no other adequate remedy for Martin's actions. (Compl. ¶ 35.) Martin moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), contending that plaintiffs lack standing and they have failed to state a predicate constitutional violation as is required by Bivens. Plaintiffs*fn1 have opposed the motion.
"[A] showing of standing is an essential and unchanging predicate to any exercise of [a court's] jurisdiction." Fla. Audubon Soc'y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996) (citation and internal quotation omitted). "As the party invoking federal jurisdiction, the plaintiff bears the burden of establishing standing." Autozone Dev. Corp. v. Dist. of Columbia, 484 F. Supp. 2d 24, 28 (D.D.C. 2007). A defendant may move under Rule 12(b)(1) to dismiss a claim on the ground that the court lacks jurisdiction over that claim. In considering the motion, a court accepts as true all of the factual allegations contained in the complaint, Artis v. Greenspan, 158 F.3d 1301, 1306 (D.C. Cir. 1998), and may also consider "undisputed facts evidenced in the record." Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003)(citations and internal quotation omitted). "The nonmoving party is entitled to all reasonable inferences that can be drawn in her favor." Artis, 158 F.3d at 1306.
In order to establish standing, the plaintiffs must allege a personal injury in fact, that is traceable to the defendant's conduct, and is redressable by the relief requested. See Int'l Bhd. of Teamsters v. Transp. Sec. Admin., 429 F.3d 1130, 1133 (D.C. Cir. 2005). "Specifically, standing to bring a constitutional claim requires (1) 'injury in fact' which is (a) 'concrete and particularized' and (b) 'actual and imminent, not 'conjectural' or 'hypothetical[,]' . . . (2) a 'causal connection between the injury and the conduct complained of[,]'" Wright v. Foreign Serv. Grievance Bd., 503 F. Supp. 2d 163, 171 (D.D.C. 2007) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)), and (3) that it is "'likely,' as opposed to merely 'speculative,' that the injury will be 'redressed by a favorable decision.'" Lujan, 504 U.S. at 561 (citation omitted). "At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice[.]" Id. at 561.
Martin argues that the plaintiffs lack standing because they have not alleged a personal injury and that the court in the wrongful death action has already granted plaintiffs access to their requested discovery. The plaintiffs counter that Martin's interference and tampering with evidence in both the wrongful death and Moussaoui actions constitutes a redressable injury given that "[p]laintiffs are still without the critical evidence they require to vindicate their constitutionally protected right to access the United States justice system." (Pls.' Opp'n at 8.)
At the Rule 12(b)(1) stage, plaintiffs' allegation that Martin's actions deprived them of testimony to which they would have had access sufficiently plead an injury that is traceable to Martin's conduct. They allege that Martin interfered with the civil litigation, improperly classified information as SSI, and tampered with witnesses in the Moussaoui trial requiring Judge Brinkema to exclude testimony on aviation security. Martin's asserted actions would have curtailed discoverable information that the plaintiffs would have been able to use in their wrongful death litigation. Furthermore, the issue is not, as Martin asserts, that plaintiffs have alternative avenues of relief available, but that the injury alleged by the plaintiffs is redressable by the relief requested. In plaintiffs' case, the injury would likely be redressed by the requested relief and is not speculative. The relief would provide damages to compensate for alleged actions by Martin which would have weakened the plaintiffs' proof of liability and damages in the wrongful death litigation, and would enjoin Martin from further interfering in that action. Plaintiffs have presented an actual, concrete injury that was allegedly caused by Martin and is redressable. Accordingly, plaintiffs have standing to bring their Bivens claim.
Martin also moved to dismiss under Rule 12(b)(6), claiming that plaintiffs have not adequately pled a constitutional violation for Bivens purposes and that she enjoys qualified immunity from suit. (Def.'s Mot. to Dismiss at 13-15.) In order to survive a motion to dismiss under Rule 12(b)(6), the allegations stated in the plaintiffs' complaint "must be enough to raise a right to relief above the speculative level[.]" Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007). The complaint must be construed in the light most favorable to the plaintiffs and "the court must assume the truth of all well-pleaded allegations." Warren v. Dist. of Columbia, 3 ...