United States District Court, District of Columbia
G. Sullivan United States District Judge
Attkisson is an investigative reporter who lives in Leesburg,
Virginia with her husband, James Attkisson, and their
daughter, Sarah Attkisson. While employed as a reporter for
CBS News, Ms. Attkisson reported on numerous hot-button and
controversial subjects, like the attack on the American
diplomatic mission in Benghazi, Libya, that involved
Executive Branch officials. During the period when Ms.
Attkisson was conducting these investigations and issuing the
resulting news reports, the Attkissons began to notice
anomalous activity related to electronic devices, like
computers, mobile phones, and televisions, occurring in their
Virginia home. Subsequent computer forensic analysis
indicated a sophisticated scheme of electronic infiltration
and surveillance related to their electronic devices. The
Attkissons contend that this electronic infiltration and
surveillance was carried out by members of the United States
government in response to Ms. Attkisson's news reporting
activity, and, accordingly, they have asserted various claims
against the United States and against former Attorney General
Eric Holder, former Postmaster General Patrick Donahoe, and
unknown agents of the Department of Justice, the United
States Postal Service, and the United States. Their claims
include Federal Tort Claims Act (“FTCA”) claims
against the United States and claims against the individual
federal officers for violations of constitutional rights
under Bivens v. Six Unknown Named Agents of Fed. Bureau
of Narcotics, 403 U.S. 388 (1971). Defendants have moved
to dismiss the claims against them for lack of subject matter
jurisdiction, improper venue, and failure to state a claim
upon which relief can be granted. Upon consideration of that
motion, the response and reply thereto, the applicable law,
and for the reasons discussed below, defendants' motion
is GRANTED IN PART and DENIED IN PART WITHOUT PREJUDICE. This
consolidated case will be TRANSFERRED in its entirety to the
Eastern District of Virginia.
investigative reporter for CBS News, Ms. Attkisson was
responsible for investigating and reporting on national news
stories. Compl., ECF No. 4 ¶ 14. Between 2011 and 2013, she
investigated and prepared various high-profile news reports,
including ones related to the “Fast and Furious”
“gunwalking” operation and the attack on the
American diplomatic mission in Benghazi, Libya. Id.
¶¶ 5, 14-15, 17-22, 24, 34-35, 57. During that
time, Ms. Attkisson lived in Leesburg, Virginia with her
husband, James, and their daughter, Sarah. Id.
2011--at the same time that Ms. Attkisson was conducting
investigations and issuing certain of her high-profile news
reports--the Attkissons “began to notice anomalies in
numerous electronic devices at their home in Virginia.”
Id. ¶ 23. These anomalies included Ms.
Attkisson's work-issued laptop computer and a family
desktop computer “turning on and off at night without
input from anyone in the household, ” “the house
alarm chirping daily at different times, ” and
“television problems, including interference.”
Id. All of these electronic devices used “the
Verizon FiOS line installed in [the Attkissons'] home,
” but Verizon was unable to stanch the anomalous
activity despite multiple attempts. Id. In January
2012, the Attkissons' residential internet service
“began constantly dropping off.” Id.
February 2012, “sophisticated surveillance
spyware” was installed on Ms. Attkisson's
work-issued laptop computer. Id. ¶ 27. A later
forensic computer analysis revealed that Ms. Attkisson's
laptop and the family's desktop computer had been the
“targets of unauthorized surveillance efforts.”
Id. That same forensic analysis revealed that Ms.
Attkisson's mobile phone was also targeted for
surveillance when it was connected to the family's
desktop computer. Id. The infiltration of that
computer and the extraction of information from it was
“executed via an IP address owned, controlled, and
operated by the United States Postal service.”
Id. Additionally, based on the sophisticated nature
of the software used to carry out the infiltration and
software fingerprints indicating the use of the federal
government's proprietary software, the infiltration and
surveillance appeared to be perpetrated by persons in the
federal government. See Id. ¶¶ 47-48. An
independent forensic computer analyst hired by CBS
subsequently reported finding evidence on both Ms.
Attkisson's work-issued laptop computer and her
family's desktop computer of “a coordinated,
highly-skilled series of actions and attacks directed at the
operation of the computers.” Id. ¶ 49.
Computer forensic analysis also indicated that remote actions
were taken in December 2012 to remove the evidence of the
electronic infiltration and surveillance from Ms.
Attkisson's computers and other home electronic
equipment. Id. ¶ 42.
Attkisson's investigations and reporting continued, in
October 2012 the Attkissons noticed “an escalation of
electronic problems at their personal residence, including
interference in home and mobile phone lines, computer
interference, and television interference.”
Id. ¶ 37. In November of that year, Ms.
Attkisson's mobile phones “experienced regular
interruptions and interference, making telephone
communications unreliable, and, at times, virtually
impossible.” Id. ¶ 40. Additionally, in
December 2012, a person with government intelligence
experience conducted an inspection of the exterior of the
Attkissons' Virginia home. Id. ¶ 43. That
investigator discovered an extra Verizon FiOS fiber optics
line. Id. Soon thereafter, after a Verizon
technician was instructed by Ms. Attkisson to leave the extra
cable at the home, the cable disappeared, and the Attkissons
were unable to determine what happened to it. Id.
¶¶ 43-45. In March 2013, the Attkissons'
desktop computer malfunctioned, and in September of that
year, while Ms. Attkisson was working on a story at her home,
she observed that her personal laptop computer was remotely
accessed and controlled, resulting in data being deleted from
it. Id. ¶¶ 50, 57.
April 3, 2013, Ms. Attkisson filed a complaint with the
Inspector General of the Department of Justice. Id.
¶ 51. The Inspector General's investigation was
limited to an analysis of the compromised desktop computer,
and the partially-released report that emerged from that
investigation reported “no evidence of intrusion,
” although it did note “a great deal of advanced
mode computer activity not attributable to Ms. Attkisson or
anybody in her household.” Id. ¶ 60.
Attkissons allege that the “cyber-attacks” they
“suffered in [their] home” were perpetrated by
“personnel working on behalf of the United
States.” Id. ¶¶ 66-67. Accordingly,
they have asserted various claims against the United States
and against former Attorney General Eric Holder, former
Postmaster General Patrick Donahoe, and unknown agents of the
Department of Justice, the United States Postal Service, and
the United States, all in their individual capacities. Those
claims include claims against the United States under the
FTCA and claims against the individual federal officers for
violations of constitutional rights under Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971). Because the Attkissons initiated two
lawsuits with nearly identical factual allegations and legal
claims, the Court consolidated the actions. See
Minute Entry of July 28, 2016. Pursuant to that
consolidation, the Court denied various pending motions
related to third-party discovery aimed at identifying the
unnamed “Doe” defendants. See Id. The
Attkissons have subsequently filed a motion for
reconsideration concerning the Order denying those
third-party discovery-related motions, see Pls.'
Mot. for Recons., ECF No. 67, which defendants have opposed.
See Defs.' Opp. to Pls.' Mot. for Recons.,
ECF No. 69. Defendants have also moved to dismiss this
consolidated case for lack of subject matter jurisdiction,
improper venue, and failure to state a claim for which relief
can be granted. See Defs.' Am. Mot. to Dismiss,
ECF No. 74. That amended motion to dismiss is now ripe
and ready for the Court's adjudication.
federal court has leeway to choose among threshold grounds
for denying audience to a case on the merits.”
Sinochem Int'l Co. v. Malay. Int'l Shipping
Corp., 549 U.S. 422, 431 (2007) (internal quotation
marks omitted). Thus, “certain non-merits,
nonjurisdictional issues may be addressed preliminarily,
because ‘[j]urisdiction is vital only if the court
proposes to issue a judgment on the merits.'”
Pub. Citizen v. U.S. Dist. Court for D.C., 486 F.3d
1342, 1348 (D.C. Cir. 2007) (alteration in original) (quoting
id.). Accordingly, it is appropriate for this
Court--consistent with the practice of other courts in this
District--to rule on defendants' assertion of improper
venue before addressing their challenges to subject matter
jurisdiction. See Yuanxing Liu v. Lynch, No.
14-1516, 2015 WL 9281580, at *2 (D.D.C. Dec. 8, 2015)
(“This court . . . is within its discretion to rule on
Defendants' assertion of improper venue before addressing
their challenge to subject matter jurisdiction.”);
Aftab v. Gonzalez, 597 F.Supp.2d 76, 79 (D.D.C.
2009) (“Adjudicative efficiency favors resolving the
venue issue before addressing whether subject matter
ruling on a motion to dismiss for improper venue under
Federal Rule of Civil Procedure 12(b)(3), the Court must
accept all well-pled factual allegations as true and must
draw all reasonable inferences in favor of the plaintiff, but
the Court is not required to accept as true plaintiff's
legal conclusions regarding venue. Darby v. U.S.
Dep't of Energy, 231 F.Supp.2d 274, 276-77 (D.D.C.
2002). The Court also need not accept as true inferences that
are unsupported by the facts set out in the complaint.
Herbert v. Sebelius, 925 F.Supp.2d 13, 17 (D.D.C.
2013) (citing Trudeau v. FTC, 456 F.3d 178, 193
(D.C. Cir. 2006)). Further, “[b]ecause it is the
plaintiff's obligation to institute the action in a
permissible forum, the plaintiff usually bears the burden of
establishing that venue is proper.” Williams v.
GEICO Corp., 792 F.Supp.2d 58, 62 (D.D.C. 2011)
(internal quotation marks omitted). But to prevail on a
motion to dismiss for improper venue, a defendant must
present facts sufficient to defeat a plaintiff's
assertion of venue. Darby, 231 F.Supp.2d at 277.
the Attkissons assert various claims under the FTCA.
See Compl., ECF No. 4 ¶ 1. The FTCA has a
special venue provision that provides that FTCA claims
“may be prosecuted only in the judicial district where
the plaintiff resides or wherein the act or omission
complained of occurred.” 28 U.S.C. § 1402(b).
Defendants argue that venue is improper in the District of
Columbia as to the FTCA claims because the plaintiffs reside
in Virginia and the acts on which their claims are based
occurred in Virginia. Defs.' Am. Mem. in Supp. of Mot. to
Dismiss, ECF No. 74-1 at 15-16. Accordingly, defendants
argue, the FTCA claims should be dismissed or, in the
alternative, transferred to the Eastern District of Virginia.
Id. at 18 & n.9. The Attkissons, in turn,
acknowledge that they do not reside in the District of
Columbia, but they argue that a substantial amount of
activity giving rise to their FTCA claims occurred in the
District of Columbia, making venue as to those claims proper
here. Pls.' Opp., ECF No. 77 at 18. According to the
Attkissons, the relevant activity included Ms.
Attkisson's reporting, “all of which was carried
out” in the District of Columbia; defendants'
response to that reporting--originating from their
headquarters in the District of Columbia--to use electronic
means to identify and silence confidential sources and to
infiltrate the Attkissons' electronic devices to extract
information; and the problems that the Attkissons experienced
with electronic devices, including mobile phones and laptop
computers, that “were transported daily to and from the
District of Columbia.” Id. at 18-19.
is proper for FTCA claims in the district where
“sufficient activities giving rise to the
plaintiff's cause of action took place.” Franz
v. United States, 591 F.Supp. 374, 378 (D.D.C. 1984).
“Further, when conduct occurs in one district but has
intended effects in another, ‘the act
‘occurs' in the jurisdiction where its effects are
directed.'” Sanchez v. United States, 600
F.Supp.2d 19, 21 (D.D.C. 2009) (quoting Reuber v. United
States, 750 F.2d 1039, 1047 (D.C. Cir. 1984),
rev'd on other grounds, Kauffman v.
Anglo-Am. Sch. of Sofia, 28 F.3d 1223 ...