The opinion of the court was delivered by: Paul L. Friedman United States District Judge
Plaintiff, who is pro se, filed suit against various federal and state government officials alleging that they have engaged in systematic harassment and surveillance of her and her family and that they have failed to produce documents responsive to requests made under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a. The matter is currently before the Court on defendants' motions to dismiss in whole or in part, plaintiff's motion for a preliminary injunction, and plaintiff's multiple motions to amend her complaint. After careful consideration of the parties' papers and the entire history of this case, the Court will grant plaintiff's first motion to amend her complaint and will deny her subsequent motions to amend, grant each of the defendants' motions to dismiss, and deny plaintiff's motion for a preliminary injunction as moot in part and conceded in part. Following this decision, only plaintiff's FOIA and Privacy Act claims relating to her records requests remain viable.
Plaintiff is an attorney at the Department of Labor. See First Amended Complaint ("Compl.") ¶ 13. She believes that defendants, the United States Attorney General, the Secretary of Labor, the Director of the Office of Personnel Management, unnamed Department of Justice employees (the "federal defendants") and two Arlington County Attorneys are engaged in a complex and long-running conspiracy against her and her family. Plaintiff alleges that defendants are conducting extensive surveillance at her home, work and elsewhere, and that they are engaged in a campaign of harassment and intimidation against her and others. See Compl. ¶¶ 1, 2, 4. In addition to her allegations relating to surveillance and harassment, plaintiff alleges that the federal defendants have not adequately responded to her requests for records production under the FOIA and the Privacy Act. Both of the Arlington County Attorney defendants, Stephen MacIsaac and Richard Trodden, have filed motions to dismiss the claims against them in full. The federal defendants filed a motion to dismiss in part, addressing only plaintiff's surveillance and harassment claims.
A. Plaintiff's Motions to Amend
Since filing her complaint, plaintiff has filed three motions to amend it. Rule 15(a)(1) of the Federal Rules of Civil Procedure allows a party to amend a pleading once as a matter of course before a responsive pleading is served. See FED. R. CIV. P. 15(a)(1)(A). A motion to dismiss is not a responsive pleading, see FED. R. CIV. P. 7(a), but as of yet none of the defendants has answered the complaint. Accordingly, plaintiff's first motion to amend her complaint, filed with this Court on November 26, 2008, will be granted as a matter of course.
Subsequent motions to amend are granted "only with the opposing party's written consent or the court's leave." See FED. R. CIV. P. 15(a)(2). Plaintiff has not secured the written consent of all defendants for her proposed amendments. The Court will, however, "freely give leave [to amend] when justice so requires." See id. "It is common ground that Rule 15 embodies a generally favorable policy toward amendments." Howard v. Gutierrez, 237 F.R.D. 310, 312 (D.D.C. 2006) (quoting Davis v. Liberty Mutual Insurace Co., 871 F.2d 1134, 1136-37 (D.C. Cir. 1989)). Where amendment would be futile, however, the Court may in its discretion deny such a motion. See Vreven v. AARP, 604 F. Supp. 2d 9 (D.D.C. 2009) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). Plaintiff's second and third motions to amend seek to add allegations to the complaint that only make her claims relating to government surveillance and harassment more fantastical. These allegations do not cure the jurisdictional deficiencies in plaintiff's claims, which are discussed below. While plaintiff's claims relating to records production under the FOIA and the Privacy Act survive the motion to dismiss, plaintiff's proposed amendments to her complaint do not substantively alter these claims. The Court therefore will deny plaintiff's second and third motions to amend her complaint as futile.
Defendants' motions to dismiss were all responsive to plaintiff's original complaint, not to her amended complaint. The federal defendants responded to plaintiff's first motion to amend, stating that they did not oppose amendment, but that the amended complaint did not cure the jurisdictional deficiencies in the original complaint. Rather than require the defendants to file additional motions making the same arguments for dismissal against the amended complaint, the Court will consider the arguments defendants make for dismissal in their original motions with regard to the amended complaint.
B. Plaintiff's Claims Related to Government Surveillance and Harassment
Both the federal defendants and defendant MacIsaac argue that this Court does not have subject matter jurisdiction over plaintiff's claims because the claims are frivolous and that the claims therefore should be dismissed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.*fn2 "Rule 12(b)(1) presents a threshold challenge to the Court's jurisdiction... [and] the Court is obligated to determine whether it has subject-matter jurisdiction in the first instance." Agrocomplect, AD v. Republic of Iraq, 524 F. Supp. 2d 16, 21 (D.D.C. 2007). "Subject-matter jurisdiction cannot be forfeited or waived and should be considered when fairly in doubt." Ashcroft v. Iqbal, 127 S.Ct. 1937, 1945 (2009). Indeed, "[f]ederal courts have a special obligation to determine whether they have subject matter jurisdiction, even when the parties have not raised any jurisdictional questions themselves." Fay v. Perles, 484 F. Supp. 2d 6, 9 (D.D.C. 2007). As explained below, the Court concludes that it does not have subject matter jurisdiction over any of the harassment and surveillance claims raised by plaintiff. The Court therefore need not reach the many other bases for dismissal advanced by defendants.
Under Rule 12(b)(1), the plaintiff bears the burden of establishing subject matter jurisdiction. See Kokkonen v. Guardian Life Insurance Co., 511 U.S. 375, 377 (1994); Moms Against Mercury v. FDA, 483 F.3d 824, 828 (D.C. Cir. 2007) (citing Georgiades v. Martin-Trigona, 729 F.2d 831, 833 n.4 (D.C. Cir. 1984)). While pro se complaints are held to a less stringent standard than other complaints, see Gray v. Poole, 275 F.3d 1113, 1116 (D.C. Cir. 2002); Amiri v. Hilton Washington Hotel, 360 F. Supp.2d 38, 41-42 (D.D.C. 2003), "even a pro se plaintiff - bears the burden of establishing that the Court has subject matter jurisdiction." Price v. College Park Honda, Civil Action No. 05-624, 2006 U.S. Dist. LEXIS 14906, 2006 WL 1102828, *6 (D.D.C. Mar. 31, 2006) (citing Rosenboro v. Kim, 994 F.2d 13, 17 (D.C. Cir. 1993); District of Columbia Retirement Bd. v. United States, 657 F. Supp. 428, 431 (D.D.C. 1987)). In addition, when a pro se plaintiff is an attorney, as is plaintiff, "she is not automatically subject to the very liberal standards afforded to a non-attorney pro se plaintiff because an attorney is presumed to have a knowledge of the legal system and need less protections from the court." Richards v. Duke University, 480 F. Supp. 2d 222, 234 (D.D.C. 2007).
"[T]he federal courts are without power to entertain claims otherwise within their jurisdiction if they are 'so attenuated and unsubstantial as to be absolutely devoid of merit.'" Hagans v. Lavine, 415 U.S. 528, 536-37 (1974) (quoting Newburyport Water Co. v. Newburyport, 193 U.S. 561, 579 (1904)). No federal question jurisdiction exists to make a claim suitable for decision "when the claim is 'patently insubstantial.'" Carone-Ferdinand v. Central Intelligence Agency, 131 F. Supp.2d 232, 234 (D.D.C. 2001) (quoting Best v. Kelly, 39 F.3d 328, 330 (D.C. Cir. 1994)); see also Richards v. Duke University, 480 F. Supp. 2d at 232 (citing Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 (1998)) (claims that are "wholly insubstantial or frivolous" lack subject matter jurisdiction to be heard in federal court). To be dismissed under Rule 12(b)(1) on this ground the claims must "be flimsier than 'doubtful or questionable' - they must be 'essentially fictitious.'" Best v. Kelly, 39 F. 3d at 330 (quoting Hagans v. Lavine, 415 U.S. at 536-37). Claims that are essentially fictitious include those that allege "bizarre conspiracy theories, any fantastic government manipulations of their will or mind [or] any sort of supernatural intervention." Best v. Kelly, 39 F. 3d at 330. Cf. Ashcroft v. Iqbal, 129 S.Ct. at 1959 (Souter, J., dissenting) (noting, in discussing the well-pleaded complaint rule under Rule 12(b)(6): "The sole exception to this rule lies with 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."). When a plaintiff's allegations are "'so attenuated and insubstantial as to be absolutely devoid of merit' [the claims] should be dismissed" for lack of subject matter jurisdiction. Richards v. Duke University, 480 F. Supp. 2d at 232.
Plaintiff's claims relating to alleged government surveillance and harassment of her are the type of "bizarre conspiracy theory" that warrant dismissal under Rule 12(b)(1). Richards v. Duke University, 480 F. Supp. 2d at 232 (quoting Carone-Ferdinand v. Central Intelligence Agency, 131 F. Supp. 2d at 232-34). Plaintiff alleges that the campaign of surveillance and harassment originated decades ago, perhaps as a result of her employment by the FBI from 1976 to 1988, see Compl. ¶ 28, and perhaps as the result of a falling out that she had with roommates in the late 1970's or early 1980's. See Compl. ¶ 32. Plaintiff's complaint strings together a series of unconnected events to support her conclusion that she has been singled out for harassment by the government. For example, she alleges that: in the late 1980's she was not permitted to look at an FBI file without supervision by the agent in charge of the file, see Compl. ¶ 33; she attended a party with other FBI agents in 1992 and attempted to discuss national security issues, see Compl. ¶¶ 41-43; her luggage was lost during a flight to Germany in 1993, see Compl. ¶ 44; the birth of her son was complicated, see Compl. ¶¶ 46-50; she has had significant marital difficulties with her husband, an FBI ...