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Montgomery v. Comey

United States District Court, District of Columbia

March 1, 2018

DENNIS MONTGOMERY, et al., Plaintiffs,
JAMES COMEY, et al., Defendants.

          MEMORANDUM OPINION [Dkts. ##7, 26, 27, 36]

          RICHARD J. LEON United States District Judge

         Plaintiffs, 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.

         Based 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.

         These 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.


         This 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.

         The 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 ¶ 28.

         Plaintiff 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.

         Montgomery 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.[1] 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.

         Montgomery 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.

         Since 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.

         Plaintiff 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 surveillance.

         In 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 ¶¶ 60-61.

         In May 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.

         Based 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] ("Pls.' Mot.").

         I held 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.


         A. Motion to Dismiss

         The 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).

         Defendants 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).

         B. Motion for ...

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