United States District Court, District of Columbia
MEMORANDUM OPINION [Dkts. ##7, 26, 27, 36]
RICHARD J. LEON United States District Judge
Dennis Montgomery ("Montgomery") and Larry Klayman
("Klayman") filed the instant action against three
federal agencies-the Federal Bureau of Investigations
("FBI"), the Central Intelligence Agency
("CIA"), and the National Security Agency
("NSA")-as well as seven current and former
government officials-former President Barack Obama
("Obama"), Director of National Intelligence
("DNI") Daniel Coats ("Coats"), former
DNI James Clapper ("Clapper"), CIA Director Mike
Pompeo ("Pompeo"), former CIA Director John Brennan
("Brennan"), NSA Director Michael Rogers
("Rogers"), and former FBI director James Comey
("Comey"). Compl. [Dkt. #1] ¶¶ 5-16.
Plaintiffs allege that defendants have engaged in
"ongoing illegal, unconstitutional surveillance of
millions of Americans, " including high-profile
Americans, such as the Chief Justice of the United States,
President Donald J. Trump, other judges and justices across
the nation, and prominent businessmen. Id. at ¶
18. Plaintiffs claim that they, too, were targeted by this
surveillance based on the fact that their personal and
business computers and cell phones were allegedly
"hacked" by computers used by the CIA, the FBI, and
the Department of Defense ("DOD"). Id. at
¶¶ 43-48, 56-62. According to plaintiffs, the FBI,
under Comey's direction, sought to "cover-up"
its wrongdoing by inducing Montgomery to turn over 47
computer hard drives containing evidence of the illegal
surveillance. Id. at ¶¶ 28-37. They also
claim that the FBI has refused to investigate plaintiffs'
claims or return the incriminating hard drives. Id.
on this allegedly unlawful conduct by defendants, Klayman and
Montgomery assert constitutional claims for violations of
their First and Fourth Amendment rights, as well as common
law tort claims for conversion and fraudulent
misrepresentation. Id. at ¶¶ 67-80,
96-101, 109-20. They also seek injunctive relief and
appointment of a special master to "conduct a real and
through[sic] investigation of the information contained on
the hard drives" and of "Defendants' attempts
to and/or actual hacks of Plaintiff Klaymairs Verizon
Wireless cellular phone and Plaintiff Montgomery's
computer." Id. at ¶¶ 81-95, 102-08.
cases are before the Court on the Government Defendants'
Motion to Dismiss and for Partial Summary Judgment, the
Individual-Capacity Defendants' Motion to Dismiss, and
Plaintiffs' Motion for a Preliminary Injunction. Upon
consideration of the parties' submissions, and the entire
record herein, defendants' motions are GRANTED,
plaintiffs' motion is DENIED, and plaintiffs'
complaint is DISMISSED with prejudice.
case-according to plaintiffs-is a "continuation" of
three other lawsuits previously filed in this Court, in which
Klayman has alleged that the federal government and its
agents have engaged in a "pattern and practice of
illegally and unconstitutionally spying on millions of
Americans." Pls.' Opp'n to Gov't Defs.'
Mot. Dismiss & Mot. for Partial Summ. J. & Resp. to
Opp'n to Mot for TRO [Dkt. #33] ("Pls'
Opp'n") 1; Compl. ¶ 6. Two of those
lawsuits-which have come to be known as
'"Klayman I" and
""Klayman II”-have already been
dismissed with prejudice, see Klayman v. National
Security Agency, Civ. A. Nos. 13-851(RJL), 13-881 (RJL),
2017 WL 5635668 (Nov. 21, 2017), and I have issued an order
to show cause why the third should not be dismissed for the
same reasons. See Klayman v. Obama, 14-cv-00092-RJL,
Order [Dkt. #531. Although plaintiffs admit that "there
is a tremendous overlap in these cases, " Status
Hr'g Tr. 25:1-2, June 23, 2017 [Dkt. #12], there are some
facts unique to the present suit, so I will provide a brief
background of the specific allegations in this case.
general theme of this action is similar to the previous
three, and is a veritable anthology of conspiracy
theorists' complaints. According to plaintiffs,
"each and every" defendant has engaged in
"ongoing illegal, unconstitutional surveillance of
millions of Americans, including prominent Americans such as
the [C]hief [J]ustice of the U.S. Supreme Court, other
justices, 156 judges, prominent businessmen and others such
as Donald J. Trump, as well as Plaintiffs themselves."
Id. at ¶ 18. Plaintiffs claim that defendants
have conducted-and continue to conduct-this surveillance
"in numerous ways, including but not limited to, bulk
telephony metadata collection similar to the now
'discontinued' Section 215 of the USA PATRIOT ACT as
well as targeted 'PRISM' collection under Section 702
of the Foreign [Intelligence Surveillance] Act."
Id. at ¶ 20, Plaintiffs further claim that
"each and every" defendant in this case has covered
up the ongoing surveillance "by coordinating
'leaks' of sensitive information pertaining to those
who may dare to oppose them or reveal their illegal,
unconstitutional activities.” Id. at ¶
Montgomery is a former NSA, CIA, and DNI contractor who has
allegedly engaged in whistleblowing regarding defendants'
unconstitutional surveillance. Id. at ¶ 33. He
claims that on August 19, 2015, he was induced by the FBI,
under the direction of Comey, to turn over 47 hard drives,
valued in excess of $50, 000. which allegedly contained
evidence of defendants' unconstitutional mass
surveillance. Id. at ¶¶37-38.
Specifically. this evidence consisted of 600, 000, 000 pages
of data on over 20 million Americans, much of which was
collected on behalf of the U.S. Government on computers
supplied by the FBI. See Amended Aff. of Dennis
Montgomery in Supp. of Pis.' Mot. TRO & Prelim. Inj.
("Montgomery AIT.") [Dkt. #9] ¶ 4. Montgomery
alleges that he only gave the hard drives to the FBI because
the FBI expressly promised that it would conduct an
investigation of the mass surveillance. Compl. ¶ 38.
Former General Counsel of the FBI, James Baker
(“Baker”), allegedly assured plaintiffs that
Comey was taking "hands on" supervision of the
Montgomery investigation, given its importance. Id.
at p. 3. Comey and the FBI, however, never conducted the
investigation, and Montgomery alleges that they are
concealing the hard drives in order "to ensure that the
evidence contained therein is not investigated or revealed to
the public and prosecuted." Id. at ¶ 39.
also claims that, on or around December 21, 2015, he was
interviewed under oath at the FBI field office in Washington,
D.C. Id. at ¶ 40. During that three-hour
interview, which was recorded on videotape, Montgomery set
forth the NSA, CIA, and DNI's pattern and practice of
unconstitutional mass surveillance. Id. Although
plaintiffs have contacted Baker numerous times regarding the
status of the Montgomery investigation, they have been
ignored. Id. at ¶ 41. Plaintiffs have, however,
advised Baker not to destroy the evidence on Montgomery's
hard drives or the evidence contained in Montgomery's
oral testimony. Id. at ¶ 42. On March 27, 2017,
Montgomery sent a Privacy Act of 1974 disclosure request to
the FBI, pursuant to 5 U.S.C. § 552(a)(d)(1), in order
to obtain a copy of "any and all documents that refer or
relate in any way to any and all 302 reports of the
interview" conducted by the FBI. Id. at ¶48. On
May 1, 2017, the FBI confirmed its receipt of
Montgomery's request, but it has failed to produce any
documents to him thus far. Id. at ¶ 51.
also alleges that, on an unspecified date, the FBI
"raid[ed his] house, I tied him I to a tree, threatened]
him and his family, and search[ed] and seiz[ed his] property
without a valid warrant or probable cause." Id.
at ¶ 34. Montgomery claims that he suffers from a brain
aneurysm of which the FBI was aware at the time of the raid,
and he believes that the FBI conducted this search and
seizure of his home and property in order "to cause him
severe emotional distress and potentially cause a fatal brain
aneurysm." Id. at ¶¶ 33, 35.
these events, Montgomery claims he has been the victim of
multiple hacking attempts against his home and business
computers, as well as his Apple account, by each of the
defendants in this case. Id. at ¶¶ 43, 47.
Specifically, he alleges that he has traced the IP addresses
of the hacking attempts to the FBL's Criminal Justice
Information Systems office in Clarksburg, West Virginia; the
DOD's Network Information Center in Columbus, Ohio; the
CIA in Washington, D.C.; and the CIA in Langley, Virginia.
Id. at ¶¶ 44 47. He also claims that
Comey, the FBI, and other defendants have "continued to
harass" him, and have "fed misleading and false
information about him to journalists ... to smear [his] name
and destroy [his] reputation in order to render him an
ineffective whistleblower." Id. at ¶ 36.
Klayman is a self-described "prominent public interest
attorney who was the founder of Judicial Watch, Inc. and now
Freedom Watch Inc." Compl. ¶ 53. Klayman has
brought several lawsuits against the federal government, its
agencies, and its officers for allegedly unconstitutionally
spying on him and other Americans. Id. According to
Klayman, he has been "publicly trying to raise awareness
of, and demand an investigation into, Defendants' ongoing
illegal and unconstitutional surveillance of millions of
Americans, as well as to prosecute wrongdoers."
Id. at ¶ 54. These efforts have included
meeting with the House Intelligence Committee, the Senate
Intelligence Committee, the House Judiciary Committee, and
the Senate Judiciary Committee about the surveillance.
Id. at ¶ 55. Klayman claims that he has been
targeted by defendants because of these meetings and his
other attempts to reveal defendants' unlawful
particular, Klayman alleges that, "almost immediately
after" he contacted the chairman of the House
Intelligence Committee regarding the FBI's cover-up of
Montgomery's evidence, he "received a purported
'software update' on his Samsung Galaxy” cell
phone. Id. at ¶ 56. After installing the
update, however, his phone "began acting abnormally,
" and "the battery |began] draining at an
exponential rate." Id. at ¶ 57. Klayman
allegedly took his phone to two different Verizon Wireless
stores, and the technicians confirmed to him that the
abnormalities were "not normal and highly suspect."
Id. at ¶ 58. He further claims that both
Samsung and his wireless carrier confirmed that neither of
them had initiated the "software update."
Id. at ¶ 59. According to Montgomery,
"battery drainage is a tell-tale sign that Defendants
have successfully hacked into a cellular phone, " so
Klayman was forced to purchase a new cell phone to avoid
being monitored by defendants. Id. at ¶¶
2017, however, Klayman's new phone began acting
abnormally as well. In addition to the battery drainage
problem, his phone began "erasing and downloading files
on its own and without [his] consent." Id. at
¶ 62. Klayman claims that, according to WikiLeaks,
defendants have developed malware that hacks into smart
phones remotely in order to turn them "into recording
and transmitting stations to spy on their targets."
Id. at ¶¶ 63-64. Klayman believes that
defendants are using this malware to hack into his phone
because they are afraid that "Montgomery will reveal
their ongoing conspiracy to the public and that [Klayman]
will continue to push for an investigation."
Id. at ¶ 66.
on these allegations, plaintiffs filed this lawsuit on June
5, 2017, alleging eight claims for relief against the federal
agencies and individual defendants. See Compl.
Plaintiffs have sued the individual defendants in both their
official capacities and their individual capacities, pursuant
to Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). See Compl.
¶¶ 7-16. In total, plaintiffs seek compensatory
damages in excess of $16, 000, 000, punitive damages in
excess of $235, 000, 000, and equitable, declaratory, and
injunctive relief. Id. at p. 32. Two weeks after
filing their complaint, plaintiffs filed a Motion for
Temporary Restraining Order and Preliminary Injunction.
See Mot. TRO & Prelim. Inj. [Dkt. #7]
a hearing in this case on June 23, 2017, during which I
consolidated plaintiffs' motion for a temporary
restraining order and preliminary injunction into a motion
for a preliminary injunction. See Status Hr'g
Tr. 29:1-7, June 23, 2017. I also set a briefing schedule for
defendants to submit any motions to dismiss, and I informed
the parties that I would rule on the motion for a preliminary
injunction and any motions to dismiss simultaneously.
See Min. Order, June 27, 2017. The Government
defendants subsequently moved to dismiss and for partial
summary judgment, and the individual defendants moved to
dismiss the claims against them in their individual
capacities. See Gov't Defs.' Mem. of P.
& A. in Supp. of Mots. Dismiss & for Partial Summ. J.
& in Opp'n to Pls.' Mot. TRO & Prelim. Inj.
[Dkt. #27-1] ("Gov't Defs.' Mem."); Mem. in
Supp. of Individual-Capacity Dels.' Mot. Dismiss [Dkt.
#36-1] ("Individual Defs.' Mem."). Those
motions-as well as plaintiffs' motion for a preliminary
injunction-are now ripe.
Motion to Dismiss
Government defendants have moved to dismiss Count VI of
plaintiffs' complaint, which requests the appointment of
a special master, for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6). To survive defendants'
motion, plaintiffs' "[f]actual allegations must be
enough to raise a right to relief above the speculative
level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact)." Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal citations omitted). Although a trial court
generally must consider a plaintiffs factual allegations as
true, the court should first "identif[y] pleadings that,
because they are no more than conclusions, are not entitled
to the assumption of truth." Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009). Once this Court has satisfied
itself that plaintiffs have asserted "well-pleaded
factual allegations, " id., I must determine
that the allegations are plausible. That is, plaintiffs'
factual allegations must allow this Court "to draw the
reasonable inference that the defendants] [are] liable for
the misconduct alleged, " if the factual allegations are
proven true. Matrixx Initiatives, Inc. v.
Siracusano, 563 U.S. 27, 46 (2011).
have also moved to dismiss Counts I-III, V, VII, and VIII of
plaintiffs' complaint for lack of subject matter
jurisdiction, pursuant to Federal Rule of Civil Procedure
12(b)(1). In ruling on such a motion, I "may consider
the complaint alone or may consider materials beyond the
pleadings, " Bickford v. Gov't of U.S., 808
F.Supp.2d 175, 179 (D.D.C. 2011) (internal quotation marks
omitted), and I must view "the factual allegations of
the complaint in the light most favorable to the non-moving
party." Loughlin v. United States, 230
F.Supp.2d 26, 35 (D.D.C. 2002). In this case, that means that
I must view the complaint in the light most favorable to
plaintiffs, but this does not diminish plaintiffs'
obligation "to state a claim of standing that is
plausible on its face." Arpaio v. Obama, 797
F.3d 11, 19 (D.C. Cir. 2015) (internal quotation marks and
alteration omitted), cert, denied, 136 S.Ct. 900
(2016), reh'g denied, 136 S.Ct. 1250 (2016).
Motion for ...