United States District Court, District of Columbia
RANDOLPH D. MOSS United States District Judge
matter is before the Court on defendants' motion to
dismiss pro se plaintiff Robert Tracy's amended
complaint. Dkt. 15. After the Court sua sponte
dismissed Tracy's original complaint without prejudice
for “fail[ure] to comply with the requirements of
[Federal Rules of Civil Procedure] 8(a) and 12(b)(6), ”
see Dkt. 7 at 3, Tracy filed an amended complaint
against the United States, the Federal Bureau of
Investigation (“FBI”), the Department of Justice,
and various unnamed individuals and businesses for violations
of the Privacy Act, the Stored Communications Act, and Title
III, as well as for the common law claims of conspiracy and
intrusion upon seclusion, see Dkt. 9.
Defendants now move to dismiss the amended complaint under
Federal Rule of Civil Procedure 12(b)(1) for lack of subject
matter jurisdiction and Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief can
be granted. See Dkt. 15. For the reasons explained
below, the Court will grant Defendants' motion to dismiss
for failure to state a claim under Rule 12(b)(6).
purpose of the pending motion to dismiss, the allegations of
fact contained in the amended complaint are taken as true.
See Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137,
1139 (D.C. Cir. 2011).
the exact timeline of events is unclear, it appears that in
the middle of 2014 Tracy and his wife believed they were the
targets of mail fraud relating to his wife's candidacy
for a leadership position with a local union. See
Am. Compl. ¶ 7; see also Tracy v. U.S. Dep't of
Justice, 2016 WL 3248185, at *1 (D.D.C. June 10,
2016). After reporting the fraud to the United
States Postal Service, Tracy claimed the couple began to
receive “thinly veiled threats from ‘third
parties.'” Tracy, 2016 WL 3248185, at
*1. In June 2014, Tracy raised his concerns about
the alleged mail fraud and threats with the FBI's Las
Vegas Field Office, and, in response, the FBI conducted
interviews with Tracy and his wife on June 23, 2014, October
2, 2014, October 9, 2014, and November 20, 2014. Am. Compl.
¶¶ 24-32. In addition, Tracy made several phone
calls to both the Department of Justice in Washington, D.C.
and the FBI's Las Vegas Field Office. See Dkt.
17-2 at 2-19; Am. Compl. ¶ 5. During the course of the
interviews and phone calls, the Tracys claimed that they were
accosted, extorted, and threatened by unknown “Third
Part[ies]” with ties to the “DHS” who
disclosed “extortion, public corruption as well as
interception and disclosure and/or dissemination of wire,
oral, and/or electronic communications,
surveillance/monitoring, [and] computer intrusion.” Am.
Compl. ¶ 29. Tracy further claims that at some point
during the FBI interviews an agent
“acknowledge[d]” that the couple was
“seemingly under some form of surveillance and/or
monitoring by some entity and/or agency.” Id.
Ultimately, the Postal Service informed Tracy that it would
not pursue his complaint, Tracy, 2016 WL 3248185, at
* 1, and the FBI declined to “offer [any] victim
assistance or protection for [Tracy] and his spouse, ”
Am. Compl. ¶ 30.
that the FBI knew more about the fraud, extortion, and
surveillance than it was willing to reveal, Tracy and his
wife each filed [Freedom of Information Act
(“FOIA”)] requests with the . . . Department of
Justice.” Tracy, 2016 WL 3248185, at *2. The
FBI initially indicated that it was “unable to identify
main file records responsive to” Tracy's request,
and it simply failed to respond to his wife's request.
Id. Tracy and his wife each then filed a separate
FOIA action in this Court. After they did so, Tracy's
wife received eight pages of redacted documents from the FBI.
See Tracy v. U.S. Dep't of Justice, 117
F.Supp.3d 1, 2 (D.D.C. 2015) (Chutkan, J.). The FBI moved for
summary judgment, which the Court granted on the ground that
the FBI's disclosure fulfilled its obligations under
FOIA. Id. at 5. Similarly, after Tracy filed suit,
the FBI produced four pages of responsive documents as well
as a declaration from David M. Hardy, Section Chief of the
FBI's Record/Information Dissemination Section,
identifying and explaining several redactions in the
response. Tracy, 2016 WL 3248185, at *2. As in the
other case, the FBI moved for summary judgment, which the
Court granted on the grounds that the FBI “conducted a
reasonable and adequate search” and that the FBI
“properly withheld information” under the Privacy
Act and FOIA exemptions. Id. at *7-10.
brought this action in April 2016. See Dkt. 1. In
May 2016, the Court dismissed Tracy's original
sixty-seven page complaint on the ground that it failed to
satisfy Federal Rules of Civil Procedure 8(a) and 12(b)(6).
Dkt. 7. Tracy then, with the Court's permission, filed an
amended complaint. Dkt. 9. In the amended complaint, he
alleges that Defendants surveilled, intimidated, and
conspired against him and his wife. Tracy further alleges
that FBI personnel have acknowledged that “surveillance
and/or monitoring, interception of wire, oral, and/or
electronic communications of some form was occurring relative
to Plaintiff and spouse.” Am. Compl. ¶ 4. In
addition, he alleges that “[c]ertain ‘Third
parties'” have detailed to him “with great
specificity” the FBI's “dissemination”
of personal information including “live surveillance
video feeds” of Tracy and his wife “in various
states of undress and marital relations.” Am. Compl.
¶ 8. Based on these allegations, Tracy asserts that the
United States, the FBI, the Department of Justice,
twenty-five unnamed individuals, and twenty-five unnamed
corporations violated his rights under the Privacy Act, 5
U.S.C. § 552a, the Stored Communications Act, 18 U.S.C.
§ 2701 et seq., and Title III, 18 U.S.C. §
2510 et seq., and committed the common law torts of
“intrusion upon seclusion” and
“conspiracy.” See Am. Compl.
once again move to dismiss, arguing that the Court lacks
subject matter jurisdiction under Rule 12(b)(1) and,
alternatively, that the amended complaint fails to state a
claim under Rule 12(b)(6). Dkt. 15.
Rule of Civil Procedure 12(b)(1) “presents a threshold
challenge to the Court's jurisdiction, ”
Bickford v. Gov't of the United States, 808
F.Supp.2d 175, 179 (D.D.C. 2011), and a 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). Although “a pro se complaint is held to
less stringent standards than other complaints, ” a
pro se plaintiff still “bears the burden of
establishing that the Court has subject-matter
jurisdiction.” Bickford, 808 F.Supp.2d at 179
(internal citations omitted). As relevant to Defendants'
motion, “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)); see also
Best v. Kelly, 39 F.3d 328, 330-31 (D.C. Cir. 1994);
Newbury v. Obama, 681 F.Supp.2d 53, 55-56 (D.D.C.
motion to dismiss brought under Rule 12(b)(6), in contrast,
is designed to “test the legal sufficiency of a
complaint.” Browning v. Clinton, 292 F.3d 235,
242 (D.C. Cir. 2002). In evaluating such a motion, the Court
“must first ‘tak[e] note of the elements a
plaintiff must plead to state [the] claim' to relief, and
then determine whether the plaintiff has pleaded those
elements with adequate factual support to ‘state a
claim to relief that is plausible on its face.'”
Blue v. District of Columbia, 811 F.3d 14, 20 (D.C.
Cir. 2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
675, 678 (2009)) (alterations in original) (internal citation
omitted). Although “detailed factual allegations”
are not necessary to withstand a Rule 12(b)(6) motion,
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007), “a complaint must contain sufficient factual
matter, [if] accepted as true, to ‘state a claim to
relief that is plausible on its face, '”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570). “In evaluating a Rule 12(b)(6)
motion, the Court must construe the complaint ‘in favor
of the plaintiff, who must be granted the benefit of all
inferences that can be derived from the facts
alleged.'” Hettinga v. United States, 677
F.3d 471, 476 (D.C. Cir. 2012) (quoting Schuler v. United
States, 617 F.2d 605, 608 (D.C. Cir. 1979)).