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Edwin Baszak v. Federal Bureau of Investigation

October 6, 2011

EDWIN BASZAK, PLAINTIFF,
v.
FEDERAL BUREAU OF INVESTIGATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Amy Berman Jackson United States District Judge

MEMORANDUM OPINION

Plaintiff Edwin Baszak brings this action pro se against the United States of America*fn1 and the Federal Bureau of Investigation ("FBI") alleging violations of his rights under the Foreign Intelligence Service Act, 50 U.S.C. § 1800, et seq. (2006) ("FISA"), the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. (2006) ("FTCA"), the Constitution of the United States, and the International Covenant on Civil and Political Rights, art. 17--19, Dec. 16, 1966, 999 U.N.T.S. 171 ("ICCPR").

Defendants moved to dismiss all of plaintiff's claims for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) on the grounds that the claims are fictitious, and for failure to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6). For the reasons stated below, the Court will grant defendants' motion to dismiss for lack of subject matter jurisdiction.

I. Background

Plaintiff is a citizen and national of Belgium, residing in Washington, D.C, who claims that prior to September 11, 2001, he alerted the FBI of the exact date of terrorist attacks on the World Trade Center and Pentagon. Am. Compl. ¶¶ 1, 6--7. Plaintiff contends that he "discovered that pilots were being trained to hijack airplanes and fly into the World Trade Center and Pentagon for the express purpose of causing maximum civilian casualties" from a third party who "conversed in an internet chat room with a terrorist cell," and that he unsuccessfully sought to "discuss the terrorist activity he uncovered with the FBI." Id. ¶ 7--8.

Plaintiff further alleges that in 1999 he made a presentation to classmates on the September 11, 2001 terrorist attacks and specifically named the future perpetrators of the attacks. Id. ¶ 9. He claims that the FBI obtained his private information by engaging in long-term and warrantless surveillance through "intrusive techniques such as video and mental surveillance . . . ." Id. ¶¶ 11, 53.

Plaintiff insists that the "information he revealed to the FBI was distributed to the public through various recording artists, using the artists' compact disk recordings of popular music." Id. ¶ 10. "After close review of particular recording materials, the plaintiff reached the conclusion that they actually contain portions of personal data, which he alleges have been processed by defendants after 9/11." Id. ¶ 45. He alleges that this information was distributed to "global media networks," as "part of a wider pattern of widespread and systematic privacy abuses, in which defamatory information is being circulated through the media." Id. ¶¶ 11, 39. The "personal data is being disseminated to the public on a daily basis," id. ¶ 42, but according to plaintiff, the information being distributed is "only personally recognizable" to plaintiff himself. Id. ¶ 45. Although plaintiff asserts that "no reasonable person would be convinced that this material is actually a product of another person's intellect," he claims his personal information is being "revealed behind closed doors." Id. ¶¶ 41, 45.

Because plaintiff claims he has exhausted the remedies afforded to him by various agencies through requests under the Freedom of Information Act for his "report of terrorist activity and any personal records maintained in the records system," id. ¶¶ 15--27, he seeks relief under FISA, the First, Fourth, Fifth, Sixth, and Fourteenth Amendments of the U.S. Constitution, the FTCA, and Articles 17, 18, and 19 of the International Covenant on Civil and Political Rights. He notes that his claim "is based on a Present Reality, of which the causes extend far into the Past," id. ¶ 35, and he asks for damages in the amount of $20,000,000.00 in his FTCA claim. Id. ¶ 33.

II. Standard of Review

Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Shekoyan v. Sibly Int'l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). See also Gen. Motors Corp. v. Envtl. Prot. Agency, 363 F.3d 442, 448 (D.C. Cir. 2004) ("As a court with limited jurisdiction, we begin, and end, with examination of our jurisdiction."). Because "subject-matter jurisdiction is an 'Art[icle] III as well as a statutory requirement, . . . no action of the parties can confer subject-matter jurisdiction upon a federal court.'" Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003), quoting Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982).

When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a motion to dismiss under Rule 12(b)(6), the court "is not limited to the allegations of the complaint." Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987). Rather, a court "may consider such materials outside the pleadings as it deems appropriate to resolve the question of whether it has jurisdiction in the case." Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000), citing Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1993); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).

Where the action is brought by a plaintiff proceeding pro se, "the court must take particular care to construe plaintiff's filings liberally, for such complaints are held 'to less stringent standards than formal pleadings drafted by lawyers.'" Cheeks v. Fort Myers Constr. Co., 722 F. Supp. 2d 93, 107 (D.D.C. 2010), quoting Haines v. Kerner, 404 U.S. 519, 520--21 (1972).

III. Plaintiff's claims are patently insubstantial and must be dismissed

"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." Lewis v. Bayh, 577 F. Supp. 2d 47, 54 (D.D.C. 2008), quoting Hagans v. Lavine, 415 U.S. 528, 536--37 (1974). Dismissal under Fed. R. Civ. P. 12(b)(1) is appropriate when a complaint is so "patently insubstantial" that it presents "no federal question suitable for decision." Best v. Kelly, 39 F.3d 328, 330 (D.C. Cir. 1994). A complaint that is "patently insubstantial" is not merely doubtful or questionable, but is "essentially fictitious." Id.; see also Carone-Ferdinand v. CIA, 131 ...


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