United States District Court, D. Columbia.
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For YASIR AFIFI, Plaintiff: Jenifer Wicks, LEAD ATTORNEY, LAW OFFICES OF JENIFER WICKS, Washington, DC; Reshad Staitieh, LEAD ATTORNEY, COUNCIL ON AMERICAN-ISLAMIC RELATIONS, Washington, DC; Zahra Billoo, LEAD ATTORNEY, PRO HAC VICE, COUNCIL ON AMERICAN-ISLAMIC RELATIONS, CALIFORNIA, Santa Clara, CA.
For ERIC H. HOLDER, JR., in his official capacity as Attorney General of the United States, ROBERT S. MUELLER, III, in his official capacity as Director of the Federal Bureau of Investigation, Defendants: Anthony Joseph Coppolino, LEAD ATTORNEY, UNITED STATES DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Washington, DC; Lynn Yuhee Lee, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division-Federal Programs Branch, Washington, DC.
For JENNIFER KANAAN, in her individual capacity, Defendant: Brant S. Levine, LEAD ATTORNEY, UNITED STATES DEPARTMENT OF JUSTICE, Washington, DC.
BERYL A. HOWELL, United States District Judge.
The plaintiff, Yasir Afifi, brings suit against Loretta Lynch. in her official capacity as Attorney General of the United States, James Comey, in his official capacity as Director of the Federal Bureau of Investigation (collectively, the " official capacity defendants" ), FBI agent Jennifer Kanaan, in her personal capacity, and several unknown FBI agents, also in their personal capacities (collectively, the " individual defendants" ), relating to the warrantless installation in 2010 of a wireless GPS tracking device on his automobile. Specifically, the plaintiff seeks relief for violations of his rights under the First and Fourth Amendments of the Constitution, the Administrative Procedure Act (APA), 5 U.S.C. § § 701 et seq., and the Privacy Act, 5 U.S.C. § 552a. The Court concludes that the individual defendants are entitled to qualified immunity with respect to the alleged constitutional violations, the official capacity defendants have not violated the strictures of the Privacy Act, and the plaintiff lacks standing to bring his APA challenge.
A. Factual Background
On October 3, 2010, the plaintiff, a California resident, brought his car to a repair shop in California for a routine oil change. See Am. Compl. ¶ ¶ 12, 32, ECF No. 21. The results of the maintenance were far from routine, however. During the oil change, the plaintiff discovered " a wire sticking out between the right rear wheel [of his automobile] and exhaust." Id. The wire was connected to " a smaller black rectangular object that had an antenna." Id. At first, the plaintiff thought the object might be a " pipe bomb." Id. at ¶ 34. Nonetheless, upon the plaintiff's request, the mechanic removed the object and the plaintiff returned with it to his home. Id. at ¶ ¶ 33-34. Later that day, the plaintiff uploaded pictures of the object onto an internet site, whereupon a reader suggested that the object was a GPS tracking device sold exclusively to law enforcement agencies. Id. at ¶ 35.
Three days later, multiple FBI agents visited the plaintiff's apartment complex to retrieve the GPS device. Id. at ¶ 36. After
the plaintiff left his apartment that day, two unmarked vehicles followed him, turned on their police lights, and pulled him over. Id. at ¶ ¶ 36-37. Four individuals wearing bullet-proof vests approached the plaintiff's vehicle. After initially inquiring after an expired license plate, an FBI agent identifying himself as " Vincent" asked the plaintiff to exit his vehicle. Id. at ¶ 39. After exiting the vehicle, " Vincent" and an FBI agent named as a defendant in this action, Jennifer Kanaan, engaged the plaintiff in conversation. Id. at ¶ 40. During the exchange, the agents " acknowledged that the device belonged to their agency, that they attached it to [the plaintiff's] vehicle, and that they used the device to monitor [the plaintiff's] movements." Id. at ¶ 43. The agents also asked the plaintiff other questions, including " whether he was a national security threat, whether he was having financial difficulties, [and] whether he had been to Yemen . . . ." Id. Eventually, the plaintiff agreed to return the GPS device to the FBI agents. Id. at ¶ 45. After returning the GPS device, defendant Kanaan made several comments to the plaintiff that indicated to the plaintiff that the FBI had knowledge of the plaintiff's movements, including commenting on certain restaurants at which the plaintiff ate, a friend with whom he associated, and a new job at which he worked. Id. at ¶ 46. At the end of the encounter, the plaintiff alleges that defendant Kanaan suggested to him that he was not a national security threat and that he was no longer of use to the FBI. Id. at ¶ 47. Following the incident, the plaintiff reported his confrontation with the FBI agents to local and national media, and the media published numerous stories about the encounter. Id. at ¶ 48.
The FBI's investigation into the plaintiff has since been administratively closed. See Declaration of Joel D. Dabisch (" Unsealed Dabisch Decl." ) at ¶ 8, ECF No. 25-3. Nonetheless, the FBI " continues to maintain additional records summarizing [the data collected from the GPS device], as well as records reflecting other information and actions taken concerning [the] plaintiff." Id. at ¶ 9. Following the incident, the plaintiff submitted a FOIA request and received redacted copies of certain records maintained by the FBI, including newspaper articles documenting the incident and an FBI report documenting the encounter between the agents and the plaintiff. Am. Compl. ¶ 4.
B. Procedural Background
Following the encounter, the plaintiff brought suit against both the official capacity defendants and the individual defendants. See generally Am. Compl. ¶ ¶ 13-14, 17-18. In Count I, the plaintiff brings suit under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and asserts that the individual defendants violated his Fourth Amendment rights by subjecting the plaintiff to an unconstitutional warrantless search. Id. at ¶ ¶ 52-54. In Count II, the plaintiff alleges that both the individual defendants and the official capacity defendants violated his rights under the Privacy Act by unlawfully collecting and maintaining records of his First Amendment activities. Id. at ¶ ¶ 60-62. In Count III, the plaintiff alleges that the actions taken by the official capacity defendants in approving the use of the GPS device were " arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, and contrary to constitutional right and should be set aside as unlawful" under the APA, 5 U.S.C. § 706.
Id. at ¶ 63. Finally, in Count IV, the plaintiff alleges that the individual defendants have " create[d] an objective chill on [his] First Amendment activities." Id. at ¶ 69.
Through the instant action, the plaintiff seeks an injunction ordering the defendants to refrain from attaching a GPS tracking device to his vehicle without a warrant, directing the defendants to abandon the policy of allowing the use of GPS tracking devices without a warrant, and ordering the official defendants to expunge all records collected through the use of the GPS tracking device and any related analyses of those records. Id. (Prayer for Relief). The plaintiff further seeks a declaratory judgment that the defendants' use of the GPS tracking device violated his First, Fourth, and Fifth Amendment rights, and that the maintenance of records of the plaintiff's First Amendment activities violates the Privacy Act. Id. Finally, the plaintiff seeks damages for " the emotional pain, suffering, reputational harm, economic injury, and anxiety" caused by the defendants' actions. Id.
Previously, this Court stayed proceedings in this matter, pending the Supreme Court's decision in United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), which addressed the constitutionality of the warrantless use of a GPS device. Following the decision in Jones, the individual defendants moved to dismiss all claims under Federal Rule of Civil Procedure 12(b)(6), see Defendant Jennifer Kanaan's Motion to Dismiss, ECF No. 22, while the official capacity defendants sought dismissal under Federal Rule of Civil Procedure 12(b)(1) and summary judgment, see Defendants Holder and Mueller's Motion to Dismiss and for Summary Judgment on Plaintiff's Amended Complaint, ECF No. 27.
II. LEGAL STANDARD
A. Motion to Dismiss Under Rule 12(b)(1)
" 'Federal courts are courts of limited jurisdiction,' possessing 'only that power authorized by Constitution and statute.'" Gunn v. Minton, 133 S.Ct. 1059, 1064, 185 L.Ed.2d 72 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)). Indeed, federal courts are " forbidden . . . from acting beyond our authority," NetworkIP, LLC v. FCC, 548 F.3d 116, 120, 383 U.S.App.D.C. 310 (D.C. Cir. 2008), and, therefore, have " an affirmative obligation 'to consider whether the constitutional and statutory authority exist for us to hear each dispute.'" James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1092, 317 U.S.App.D.C. 281 (D.C. Cir. 1996) (quoting Herbert v. National Academy of Sciences, 974 F.2d 192, 196, 297 U.S.App.D.C. 406 (D.C. Cir. 1992)). When the purported lack of jurisdiction stems from a lack of standing, the court " must assume that [the plaintiff] states a valid legal claim." Info. Handling Servs., Inc. v. Def. Automated Printing Servs., 338 F.3d 1024, 1029, 358 U.S.App.D.C. 37 (D.C. Cir. 2003); see also Mendoza v. Perez, 754 F.3d 1002, 1010, 410 U.S.App.D.C. 210 (D.C. Cir. 2014) (" In evaluating plaintiffs' standing at the motion to dismiss stage 'we must assume that the plaintiff[s] state[ ] a valid legal claim and must accept the factual allegations in the complaint as true.'" (quoting Holistic Candlers and Consumers Ass'n v. FDA, 664 F.3d 940, 943, 398 U.S.App.D.C. 378 (D.C. Cir. 2012) (alterations in original)). The proponent of jurisdiction bears the burden of proving that it exists, see Khadr v. United States, 529 F.3d 1112, 1115, 381 U.S.App.D.C. 408 (D.C. Cir. 2008), and, in determining jurisdiction, " the district court may consider materials outside the pleadings." Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253, 365 U.S.App.D.C. 270 (D.C. Cir. 2005); see also Belhas v. Ya'Alon, 515 F.3d 1279, 1281, 380 U.S.App.D.C. 56 (D.C. Cir. 2008) (examining materials outside the pleadings in ruling on a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction); Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198, 357 U.S.App.D.C. 72 (D.C. Cir. 2003) (noting that courts may consider materials
outside the pleadings in ruling on a Rule 12(b)(1) motion to dismiss for lack of ...