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Kelley v. Federal Bureau of Investigation

United States District Court, D. Columbia.

September 15, 2014

GILBERTE JILL KELLEY, et al., Plaintiffs,
v.
FEDERAL BUREAU OF INVESTIGATION, et al., Defendants

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For GILBERTE JILL KELLEY, SCOTT KELLEY, M.D., Plaintiffs: Alan Charles Raul, Edward R. McNicholas, LEAD ATTORNEYS, SIDLEY AUSTIN LLP, Washington, DC.

For FEDERAL BUREAU OF INVESTIGATION, DEPARTMENT OF DEFENSE, UNITED STATES OF AMERICA, DEPARTMENT OF STATE, SEAN M. JOYCE, STEVEN E. IBISON, ADAM R. MALONE, Individual Capacity, Defendants: John Russell Tyler, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC; Peter J. Phipps, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division, Federal Programs, Washington, DC.

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MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge.

Plaintiffs Gilberte Jill Kelley and Scott Kelley filed this lawsuit against defendants the Federal Bureau of Investigation, the United States Department of Defense, the United States Department of State, the United States of America, Leon Edward Panetta, Sean M. Joyce, George E. Little, Steven E. Ibison, Adam R. Malone, and John and Jane Does 1-10.[1] The amended complaint contains fourteen counts that assert a combination of claims based on alleged violations of the Privacy Act, 5 U.S.C. § 552a (2012); the Stored Communications Act, 18 U.S.C. § 2701 et seq. (2012); the Fourth and Fifth Amendments to the United States Constitution; and the law of four states. Am. Compl. ¶ ¶ 113-225 [Dkt. # 19].

Defendants FBI, DOD, State Department, and United States have moved to dismiss plaintiffs' Privacy Act, Stored Communications Act, and state law claims for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Defs.' Mot. to Dismiss (" Defs.' Mot." ) [Dkt. # 34]. Defendants Joyce, Ibison, and Malone also filed a Rule 12(b)(6) motion to dismiss the Fourth and Fifth Amendment Bivens claims asserted against them in their individual capacities for failure to state a claim upon which relief can be granted. Mot. to Dismiss by Defs. Joyce, Ibison, & Malone (" Indiv. Defs.' Mot." ) [Dkt. # 35]. Plaintiffs opposed both motions. Pls.' Consolidated Opp. to Defs.' Mots. to Dismiss & Mem. in Supp. of the Mot. to Set Aside the Gov't's Certification (" Pls.' Opp." ) [Dkt. # 37].

This case arose out of plaintiffs' receipt of anonymous and troubling emails from a woman who has since been identified as Paula Broadwell. At the time, Ms. Broadwell was involved in an extramarital affair with General David Petraeus, who was then the Director of the Central Intelligence Agency (" CIA" ), and who was also a friend of the Kelley family. The Kelleys reported the emails to an acquaintance in the FBI, and the investigation that is at the heart of this lawsuit ensued. The gravamen of the amended complaint is set out in its opening paragraphs:

There is no question that Mrs. Kelley and Dr. Scott Kelley were the victims of and witnesses to a potential cyberstalking crime. There is no question that they reported the facts to the FBI out of concerns for their own physical safety and the safety of their friends who were among the nation's most senior intelligence and military leaders.

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There is also no reasonable argument that in exchange for their coming forward as good citizens they became the target of an unreasonable and intrusive investigation, and a malicious smear campaign where their names, emails, and damaging (as well as false) information were leaked to the media.

Am. Compl. ¶ ¶ 3-4. Plaintiffs seek declaratory and injunctive relief and money damages to vindicate these alleged violations of their legal rights and intrusions upon their privacy. Id. ¶ 2.

The amended complaint is a long, overwrought, and argumentative document, and its 225 paragraphs are full of indignation while being thin on facts. But the Court finds that plaintiffs have set forth sufficient factual allegations to withstand the motion to dismiss Count 1 to the extent that it asserts unlawful disclosure of information to the media because there are sufficient facts presented in the amended complaint to satisfy plaintiffs' burden to state a plausible Privacy Act claim.

With respect to the other claims, though, the Court finds that plaintiffs have failed to plead sufficient facts to support a plausible inference that the conduct underlying the Privacy Act claims in Counts 2 through 6 and the portion of the claim in Count 1 that is based on the FBI's disclosure of records to the DOD was intentional and willful, so those counts will be dismissed. The Court will also grant the motion to dismiss the Stored Communication Act claims in Counts 7 and 8 under Rule 12(b)(1) because plaintiffs did not first present those claims to the appropriate agency, and therefore, the Court lacks subject matter jurisdiction over them. Counts 9 and 10 will be dismissed on the grounds that it would be improper to imply a Bivens remedy for the constitutional violations that are alleged.

Further, because plaintiffs have failed to rebut the presumption that defendants Panetta, Little, Joyce, Ibison, and Malone were acting within the scope of their employment when they allegedly committed the state law torts in Counts 11, 13, and 14, the Court does not have subject matter jurisdiction over those claims, and they will therefore be dismissed as to those defendants.[2] The Court will also grant the motion to dismiss the false light claim against defendants Panetta and Joyce in Count 12 because neither Virginia nor Florida recognizes that cause of action.

Whether plaintiffs will be able to prove the remaining claims is a question for another day, but for now, the case will proceed, albeit on a considerably more streamlined basis. The Kelleys may be rightfully aggrieved by the manner in which they were depicted in the media and by the impact of the stream of sensational articles on their reputations, but it remains to be seen if those harms can be laid at the feet of these defendants.

BACKGROUND

I. Factual Background[3]

Plaintiffs Gilberte Jill Kelley and Scott Kelley are husband and wife, and they live in the state of Florida. Am. Compl. ¶ ¶ 17-19. According to the amended complaint, prior to the events giving rise to this case, Mrs. Kelley was " a community leader and liason to the military community in Tampa," which is comprised of servicemen and women assigned to MacDill

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Air Force Base and the United States Central Command. Id. ¶ ¶ 17, 30-31. The amended complaint also states that in early 2012, the Republic of Korea nominated Mrs. Kelley to serve in a position entitled " Honorary Consul" under the Vienna Convention on Consular Affairs of 1963, Art. 10, and that she was officially appointed as of August of that year. Id. ¶ ¶ 17, 33, 36. The State Department issued her an identification card bearing a State Department identification number as well as a State Department approved Florida license plate, noting her status. Id. Scott Kelley is a general surgeon and surgical oncologist who maintains a private practice in the Tampa area. Id. ¶ 18.

Through their involvement in the community, plaintiffs came to know both the former CIA Director David H. Petraeus, who had previously served as a General in the United States Army, and United States Marine Corps General John R. Allen. Id. ¶ 32. The Kelleys state that as a couple and individually, they interacted and corresponded with General Petraeus and General Allen and their families on a regular basis. Id.

The series of events outlined in the amended complaint began in May of 2012, when an anonymous individual sent an email to General Allen that " disparaged Mrs. Kelley and made reference to an upcoming dinner . . . with several senior U.S. and foreign intelligence, defense, and diplomatic officials." Id. ¶ 38. In June, Dr. Kelley received a series of similar communications that revealed knowledge of Mrs. Kelley's activities. Id. ¶ ¶ 41, 43, 53. The plaintiffs were unnerved by the level of detail contained in the emails concerning Mrs. Kelley's personal activities, and Mrs. Kelley contacted FBI Counterintelligence Agent Fred Humphries twice to express her concerns. Id. ¶ ¶ 39-40, 42, 44. Around June 7, 2012, Agent Humphries introduced Mrs. Kelley to FBI Agent Adam Malone by email, and Mrs. Kelley learned that Agent Malone would be handling the investigation into what the amended complaint refers to as the " cyberstalking complaint:" the anonymous emails Dr. Kelley had received. Id. ¶ 44. From that point on, Mrs. Kelley contacted Agent Malone to report any additional harassing emails her husband received. Id.

After making an initial attempt to identify the anonymous email sender, FBI agents asked Mrs. Kelley for the login and password to Dr. Kelley's email account to obtain the sender's IP address. Id. ¶ 47. The amended complaint alleges that the agents assured Mrs. Kelley that they would not access the contents of plaintiffs' emails and that they would only access Dr. Kelley's account to obtain the anonymous sender's IP address by opening the original anonymous email Dr. Kelley received. Id. ¶ ¶ 47-48. The Kelleys aver that Mrs. Kelley agreed to give access for that limited purpose, and that she denied the agents' follow-up request that she authorize access to other emails in the account. Id. ¶ ¶ 49-50. They further maintain that Dr. Kelley did not authorize the FBI to access his email account beyond the limited goal of obtaining the IP address, and that Agent Malone periodically assured plaintiffs that the FBI would respect their privacy and would not disclose their names. Id. ¶ ¶ 45, 51, 54.

In about mid-August, Agent Malone informed Mrs. Kelley that the FBI had identified the anonymous email sender, but he did not provide her with any additional information, despite her requests about obtaining security or protection. Id. ¶ 54. It was later revealed that Paula Broadwell, the woman who was having an extramarital affair with General Petraeus, had sent the emails. See id. ¶ ¶ 55-56. Plaintiffs

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had never met or spoken to Mrs. Broadwell. Id. ¶ 57.

The amended complaint sets forth a number of grievances that arose in connection with the above events: plaintiffs complain that the FBI did not provide them with a victims' assistance coordinator or inform them about what was going on in the case. Id. ¶ ¶ 63, 92-93. They state that the FBI never interviewed Mrs. Broadwell, but it decided not to bring charges against her. Id. ¶ ¶ 62, 79. They allege that defendant Sean Joyce -- who was at that time the Deputy Director of the FBI overseeing the cyberstalking investigation from Washington -- made the decision not to charge Mrs. Broadwell, and that he made the decision before the FBI had interviewed Dr. Kelley. Id. ¶ ¶ 62, 79. The amended complaint also notes that during the course of the investigation, the FBI accused Agent Humphries of having an improper relationship with Mrs. Kelley, and that when he attempted to include an affidavit in the case file denying an affair, he was told to remove it. Id. ¶ ¶ 68, 74-75.

As plaintiffs put it, at some point, they began to feel like they were the subjects of an investigation, not the victims of a crime. See id. ¶ 72. On August 10, 2012, FBI agents allegedly required Mrs. Kelley to accompany them in an SUV despite her protests that she did not wish to go, denied her the opportunity to contact her attorney, and asked her questions about whether she had an extramarital affair with General Petraeus. Id. ¶ ¶ 69-70. Mrs. Kelley was distressed to learn from Agent Humphries that the FBI had posted a chart on the wall of its Tampa office that depicted Mrs. Kelley at its hub, with spokes drawn out to several senior government and military officials, and that the chart could be seen by anyone in the office. Id. ¶ 76. And in November 2012, when Mrs. Kelley contacted the FBI's Victim Witness Assistance program to inquire about services, she was informed that a file had once existed, but it had been removed from the victim representative's list of cases for some unknown reason. Id. ¶ ¶ 94-95.

Then, on November 9, 2012, General Petraeus resigned as Director of the CIA. Id. ¶ 77. Media outlets reported that General Petraeus resigned as a result of an affair that had been uncovered while the FBI was investigating a complaint lodged by an unnamed individual who had been receiving harassing emails. Id. But the individual did not remain unnamed for long. A key allegation in plaintiffs' amended complaint is that it was government, law enforcement, and military officials who identified Mrs. Kelley to the media as the person whose complaint had led to the discovery of the Broadwell-Petraeus affair. See, e.g., id. ¶ 80. On November 11, 2012, Mrs. Kelley received a fax from Douglas Frantz -- who was a journalist for the Washington Post at that time -- informing Mrs. Kelley that he had seen some of the harassing emails that Paula Broadwell sent her. Id. ¶ ¶ 81, 91. According to the amended complaint, Agent Malone informed Dr. Kelley that the media had received this information from FBI headquarters. Id. ¶ 88.

Plaintiffs also allege that unspecified officials disseminated false information about Mrs. Kelley, including allegations that Mrs. Kelley was involved an affair with General Allen,[4] and they point to two separate occasions where State Department spokesperson Mark Toner denied that Mrs. Kelley had any formal affiliation with the State Department. Id. ¶ ¶ 80, 83-84, 86, 91.

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The revelation of plaintiffs' identities resulted in significant media coverage about their personal lives. Id. ¶ 96. The Republic of Korea revoked Mrs. Kelley's Honorary Consulship, which deprived her of an annual stipend, id. ¶ ¶ 99, 105, and plaintiffs claim that they suffered other unspecified current and future financial losses. Id. ¶ ¶ 98, 107. The couple increased its security as a result of the media attention, and plaintiffs contend that they now avoid public events and their children's school functions. Id. ¶ 102. In the wake of the public disclosure and media speculation about Mrs. Kelley, Mrs. Kelley was no longer accorded privileged access to the MacDill Air Force base. Id. ¶ 106.

Based on all of these circumstances and the information reported by the media, plaintiffs believe that at some point, federal agents collected more than the one email that plaintiffs had authorized them to obtain. Id. ¶ 58. And since DOD undertook an investigation into whether General Allen had an affair with Mrs. Kelley, plaintiffs allege that the FBI shared those emails with DOD. Id. ¶ 82. The emails collected included communications between plaintiffs, General Petraeus, General Allen, and Agent Humphries, as well as other records about plaintiffs' personal lives, and plaintiffs believe that the emails were, and perhaps still are, maintained by the FBI and DOD. Id. ¶ 65. Yet plaintiffs state that they were never notified that the government planned to, or had, accessed their emails, and that they were never informed that they were the subjects of an investigation. Id. ¶ ¶ 59-60, 100.

II. Procedural History

Plaintiffs filed their original complaint in this case on June 3, 2013, Compl. [Dkt. # 1], and an amended complaint on November 22, 2013. Am. Compl. The amended complaint advances fourteen counts against various government entities and multiple government officials in their individual capacities. Specifically, plaintiffs have lodged the following claims:

o In Count 1, plaintiffs allege that defendants FBI and DOD violated section 552a(b) of the Privacy Act, which prohibits disclosure of any item or information contained within a system of records maintained by the agency, unless disclosure is expressly authorized under the Act. Am. Compl. ¶ ¶ 113-24. Plaintiffs assert this claim, as well as the Privacy Act claims in Counts 2, 4, 5, and 6, through the civil cause of action created in section 552a(g)(1)(D). See, e.g., Am. Compl. ¶ 121.
o In Count 2, plaintiffs allege that defendants FBI and DOD violated section 552a(e)(1) of the Privacy Act, which requires an agency to " maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the President." 5 U.S.C. § 552a(e)(1); Am. Compl. ¶ ¶ 125-33.
o In Count 3, plaintiffs bring a claim against defendants FBI and DOD under section 552a(g)(1)(C) of the Privacy Act, which establishes a civil cause of action against an agency that " fails to maintain any record concerning an individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record." 5 U.S.C. § 552a(g)(1)(C); see also id. § 552a(e)(5) (setting forth the obligation of an agency to conduct itself in a manner consistent with what

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is required by section 552a(g)(1)(C)); Am. Compl. ¶ ¶ 134-41.
o In Count 4, plaintiffs allege that defendants FBI and DOD violated section 552a(e)(7) of the Privacy Act, which provides that an agency must " maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity." 5 U.S.C. § 552a(e)(7); Am. Compl. ¶ ¶ 142-48.
o In Count 5, plaintiffs allege that defendants FBI, DOD, and the State Department violated section 552a(e)(6) of the Privacy Act, which requires that an agency, " prior to disseminating any record about an individual to any person other than an agency, . . . make reasonable efforts to assure that such records are accurate, complete, timely, and relevant for agency purposes." 5 U.S.C. § 552a(e)(6); Am. Compl. ¶ ¶ 149-59.
o In Count 6, plaintiffs allege that defendants FBI and DOD violated section 552a(e)(10) of the Privacy Act, which requires agencies to " establish appropriate administrative, technical, and physical safeguards to insure the security and confidentiality of records and to protect against any anticipated threats or hazards to their security or integrity which could result in substantial harm, embarrassment, inconvenience, or unfairness to any individual on whom information is maintained." 5 U.S.C. § 552a(e)(10); Am. Compl. ¶ ¶ 160-69.
o In Count 7, plaintiffs assert a claim against the United States for violation of section 2707(g) of the Stored Communications Act, which prohibits disclosure of electronic communications that are obtained by the government through compulsion from a thirdparty service provider unless disclosure is " made in the proper performance of the official functions of the officer or government entity" or the information was previously lawfully disclosed to the public by a government entity or a plaintiff in a civil action, prior to the start of the civil case. 18 U.S.C. § 2707(g); Am. Compl. ¶ ¶ 170-75.
o In Count 8, plaintiffs assert a claim against the United States for violating the notice provision contained in section 2703(b) of the Stored Communications Act, which, in some circumstances, requires prior notice to a customer or subscriber that the government will intercept his or her electronic communications. 18 U.S.C. § 2703(b); Am. Compl. ¶ ¶ 176-80.
o In Count 9, plaintiffs assert a Bivens claim against defendants Joyce, Malone, and Ibison, as well as the Doe defendants, for a violation of plaintiffs' Fourth Amendment rights to be protected against unlawful searches and seizures. Am. Compl. ¶ ¶ 181-88.
o In Count 10, plaintiffs assert a Bivens claim against defendants Joyce, Malone, and Ibison, as well as the Doe defendants, claiming that those defendants discriminated against Mrs. Kelley on the basis of her gender in violation of the Fifth Amendment Due Process Clause. Id. ¶ ¶ 189-97.
o In Count 11, plaintiffs assert a defamation claim under state law against defendants Panetta, Little, and the Does. Id. ¶ ¶ 198-203.
o In Count 12, plaintiffs assert the state law claim of false light against defendants Panetta, Little, and the Does. Id. ¶ ¶ 204-10.

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o In Count 13, plaintiffs assert a state law claim for intrusion upon seclusion against defendants Joyce, Malone, Ibison, and the Does. Id. ¶ ¶ 211-17.
o In Count 14, plaintiffs bring a claim under state law for publication of private facts against defendants Panetta, Little, and the Does. Id. ¶ ¶ 218-25.

Plaintiffs seek only damages for the alleged Privacy Act claims in Counts 1 through 6, see id. ¶ 2,[5] and they request only equitable relief with respect to their Stored Communications Act claims. Pls.' Opp. at 29-30.

Defendants filed two motions to dismiss the amended complaint: the government entity defendants sought dismissal of Counts 1 through 8 pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), Defs.' Mot., and individual defendants Joyce, Ibison, and Malone moved to dismiss Counts 9 and 10 on various grounds. Indiv. Defs.' Mot. Defendants also filed a Westfall Act certification that, if left unchallenged, would substitute the United States as the defendant in Counts 11 through 14 and require dismissal of the individually named defendants in those counts. Westfall Act Certification, Ex. 1 to Defs.' Mot. [Dkt. # 34-1]. Plaintiffs opposed both motions. Pls.' Opp. They also filed a motion to set aside the Westfall Act certification. Pls.' Mot. for Order to Set Aside Defs.' Westfall Act Certification [Dkt. # 38].[6] The Court held oral argument on all of the pending motions on May 23, 2014.

LEGAL FRAMEWORK

I. The Privacy Act

Congress enacted the Privacy Act in 1974 after it determined that, " in order to protect the privacy of individuals identified in information systems maintained by Federal agencies, it [was] necessary . . . to regulate the collection, maintenance, use, and dissemination of information by such agencies." Privacy Act of 1974, § 2(a)(5), 88 Stat. 1896 (codified at 5 U.S.C. § 552a). The Act sets forth detailed instructions on how agencies should manage their records, 5 U.S.C. § 552a(e), and when, if ever, information from those records may be disclosed. Id. § 552a(b). The Privacy Act also provides " civil relief to individuals aggrieved by failures on the Government's part to comply with [those] requirements." Doe v. Chao, 540 U.S. 614, 618, 124 S.Ct. 1204, 157 L.Ed.2d 1122 (2004).

The civil remedies available to individuals affected by the violation of one of the substantive provisions of the Privacy Act are governed by section 552a(g)(1). As the Supreme Court has explained:

The first two categories [of section 552a(g)(1)] cover deficient management of records: subsection (g)(1)(A) provides for the correction of any inaccurate or other improper material in a record, and subsection (g)(1)(B) provides a right of

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access against any agency refusing to allow an individual to inspect a record kept on him. . . . The two remaining categories deal with derelictions having consequences beyond the statutory violations per se. Subsection (g)(1)(C) describes an agency's failure to maintain an adequate record on an individual, when the result is a determination " adverse" to that person. Subsection (g)(1)(D) speaks of a violation when someone suffers an " adverse effect" from any other failure to hew to the terms of the Act.

Chao, 540 U.S. at 618-19; see also 5 U.S.C. § 552a(g)(1)(A)-(D).[7]

The type of relief that would be available to a successful Privacy Act claimant is governed by the subsection of 552a(g)(1)(A)-(D) that underlies the suit. Section 552a(g)(2)-(3) provides for equitable relief if a plaintiff succeeds on a claim brought under section 552a(g)(1)(A) or (B), and section 552a(g)(4) lists the remedies available for suits brought under section 552a(g)(1)(C) or (D). Section 552a(g)(4) provides:

In any suit brought under the provisions of subsection (g)(1)(C) or (D) of this section in which the court determines that the agency acted in a manner which was intentional or willful, the United States shall be liable to the individual in an amount equal to the sum of--
(A) Actual damages sustained by the individual as a result of the refusal or failure, but in no case shall a person entitled to recovery receive less than the sum of $1,000; and
(B) The costs of the action together with reasonable attorney fees as determined by the court.

5 U.S.C. § 552a(g)(4).

In light of these provisions, a Privacy Act plaintiff can only obtain equitable relief for a claim brought under section 552a(g)(1)(A) to correct inaccurate or improper material contained in a record, or under section 552a(g)(1)(B) to gain access to a record after the agency denies an inspection request. And claims brought under section 552a(g)(1)(C) and (D) will only result in monetary relief. Doe v. Stephens, 851 F.2d 1457, 1463, 271 U.S.App.D.C. 230 (D.C. Cir. 1988); see also Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1122, 377 U.S.App.D.C. 460 (D.C. Cir. 2007) (" We have held that only monetary damages, not declaratory or injunctive relief, are available to § 552a(g)(1)(D) plaintiffs . . . ." ) (citation omitted); Am. Fed'n of Gov't Emps. v. Hawley, 543 F.Supp.2d 44, 54 (D.D.C. 2008) (same).

Moreover, when a Privacy Act claim is asserted under section 552a(g)(1)(C)

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or (D) and is therefore brought to secure money damages against the United States under section 552a(g)(4), recovery is conditioned on the plaintiff's ability to prove that " the agency acted in a manner which was intentional or willful." 5 U.S.C. § 552a(g)(4). Accordingly, intentional and willful misconduct is an element that must be pleaded and supported by sufficient facts to state a claim for relief under section 552a(g)(1)(C) or (D) of the Privacy Act. See Chambers v. U.S. Dep't of Interior, 568 F.3d 998, 1006, 386 U.S.App.D.C. 239 (D.C. Cir. 2009); Sussman, 494 F.3d at 1122.

II. Stored Communications Act

The Stored Communications Act (" SCA" ) governs voluntary and compelled disclosure of wire and electronic communications and transactional records held by third-party electronic communication service providers or providers of remote computing services. 18 U.S.C. § 2701 et seq. Put differently, the SCA delineates when a third-party, such as an email service, may disclose the contents of its customers' electronic communications, such as emails, or other record information about those communications, such as the name of the person who owns the email account. Id.

Section 2703 governs compelled disclosures of the contents of, or record information about, wire or electronic communications. Id. § 2703. If the government seeks to obtain the contents of an electronic communication that has been in electronic storage for 180 days or less, it must obtain a warrant in accordance with the Federal Rules of Criminal Procedure. Id. § 2703(a). But if the government wishes to obtain the contents of an electronic communication that has been in electronic storage for more than 180 days, the agency involved has two choices: (A) it can obtain a warrant that meets the requirements of the Federal Rules, in which case it does not need to provide prior notice to the customer or subscriber that it is accessing the contents of that individual's electronic communications, id. § 2703(b)(1)(A); or (B) it can provide notice to the subscriber or customer and then either issue an administrative subpoena or obtain a court order pursuant to section 2703(d). Id. § 2703(b)(1)(B)(i)-(ii).

The SCA also provides for civil remedies in the event that the Act's provisions are violated. Section 2707 provides for a civil cause of action where the violation of the Act's requirements was " engaged in with a knowing or intentional state of mind" and was committed by any " person or entity, other than the United States." Id. § 2707(a). The relief available under section 2707(a) includes: " (1) such preliminary and other equitable or declaratory relief as may be appropriate; (2) damages under subsection (c); and (3) a reasonable attorney's fee and other litigation costs reasonably incurred." Id. § 2707(b)(1)-(3).

Section 2712 provides that a civil cause of action " against the United States to recover money damages" may be brought by " any person who is aggrieved by any willful violation of the Act." Id. § 2712(a). But as a prerequisite to bringing an action under this section, the plaintiff must first present the claims " to the appropriate department or agency under the procedures of the Federal Tort Claims Act, as set forth in title 28, United States Code." Id. § 2712(b)(1). Once that requirement is satisfied, section 2712 authorizes a court to award a successful plaintiff damages in the form of " actual damages, but not less than $10,000, whichever amount is greater; and litigation costs, reasonably incurred." Id. Congress specified that this was to be an exclusive remedy for governmental violations of the SCA: " Any action against the United States under this subsection shall

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be the exclusive remedy against the United States for any claims within the purview of this section." Id. § 2712(d).

STANDARD OF REVIEW

In evaluating a motion to dismiss under either Federal Rule of Civil Procedure 12(b)(1) or Federal Rule of Civil Procedure 12(b)(6), the Court must " treat the complaint's factual allegations as true . . . and must grant plaintiff 'the benefit of all inferences that can be derived from the facts alleged.'" Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113, 342 U.S.App.D.C. 268 (D.C. Cir. 2000), quoting Schuler v. United States, 617 F.2d 605, 608, 199 U.S.App.D.C. 23 (D.C. Cir. 1979) (citations omitted); see also Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139, 395 U.S.App.D.C. 316 (D.C. Cir. 2011). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff's legal conclusions. Browning v. Clinton, 292 F.3d 235, 242, 352 U.S.App.D.C. 4 (D.C. Cir. 2002).

I. Subject Matter Jurisdiction

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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Shekoyan v. Sibley 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, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448, 361 U.S.App.D.C. 6 (D.C. Cir. 2004) (" As a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction." ). " [B]ecause 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, 358 U.S.App.D.C. 56 (D.C. Cir. 2003), quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (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, 251 U.S.App.D.C. 145 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Rather, " a court may consider such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear 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 Scis., 974 F.2d 192, 197, 297 U.S.App.D.C. 406 (D.C. Cir. 1992); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253, 365 U.S.App.D.C. 270 (D.C. Cir. 2005).

II. Failure to State a Claim

" To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted); see also Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible when the pleaded factual content " allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. " The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a ...


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