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Tracy v. United States

United States District Court, District of Columbia

November 18, 2016

UNITED STATES OF AMERICA, et al., Defendants.


          RANDOLPH D. MOSS United States District Judge

         This 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.

         The 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).

         I. BACKGROUND

         For the 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).

         Although 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).[1] 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.

         “Convinced 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.[2] Id. at *7-10.

         Tracy 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. ¶¶ 8-9.

         Defendants 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.


         Federal 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. 2010).

         A 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)).

         III. ANALYSIS

         A. ...

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