United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. GRIMM UNITED STATES DISTRICT JUDGE
a lawsuit against the National Security Agency
(“NSA”) and its former director, Admiral Michael
S. Rogers. The plaintiffs, a Mississippi woman and her
mother, accuse the agency of orchestrating a long-running
campaign to surveil and harass them. Plaintiffs are
represented by counsel, who, in response to the agency's
motion to dismiss, conceded that most of the claims in the
eight-count Complaint either were not justiciable or were
improperly pleaded. See Opp'n 1, ECF No. 24.
Those claims have been dismissed without prejudice.
See ECF No. 25. Plaintiffs, nevertheless, have
pressed on with their lone remaining claim, which seeks a
court order pursuant to the Privacy Act of 1974 requiring the
NSA to make records available to their lawyer and to delete
“all false and defamatory material” those records
might contain. Compl. 15, ECF No. 1. They also have asked for
leave to amend the Complaint to bring constitutional claims
against unknown government officials who might, in theory, be
responsible for the alleged invasions of their privacy.
dismissing the Privacy Act claim for a variety of
jurisdictional and merits-based reasons. I also deny the
plaintiffs' request for leave to amend their pleading, as
I conclude that amendment would be futile. This case
therefore will be dismissed.
Complaint chronicles a series of “troubling
incidents” the two plaintiffs claim to have experienced
over the past 16 years. Compl. ¶ 13. The plaintiffs,
Leah Camper (“Ms. Camper”) and her mother, Atlee
Camper, say they “believe NSA officials are
responsible” for those incidents. Id.
Complaint traces these occurrences to May 2003, when Ms.
Camper applied for a job at the CIA. See Id. A few
months later, a professor helped make arrangements for her to
meet with NSA recruiters. See Id. ¶ 2, 19.
Neither agency ever offered her a job, and, in fact, the CIA
never contacted her in connection with her application.
See Id. ¶ 13. Ms. Camper, though, says
“[s]trange incidents” have followed ever since.
Id. ¶ 20.
detailed in the Complaint include several “strange[, ]
random encounters” for which Ms. Camper says she has
“no explanation.” Id. ¶ 14. For
example, she says, in 2004, a man who “refused to
identify himself” confronted her in a health club, and
when she went outside she found her car had been broken into.
Id. ¶ 23. On another occasion, in 2005, she was
approached by a stranger who said he knew she had attended
the University of Detroit. See Id. ¶ 15.
Similarly, in 2009, a man she did not know approached her as
she made her way to an elevator in a Michigan hospital and
asked her a number of politically oriented questions. See
Id. ¶ 14.
Complaint alleges, more generally, that NSA officials have
been monitoring Ms. Camper for the past 14 years and have
“followed [her] around the United
States.” Id. ¶ 24. It asserts that
“numerous individuals with military backgrounds”
have harassed and even insulted her. Id. ¶ 30.
Ms. Camper also accuses the NSA of stealing or destroying her
personal property and regularly interfering with her
electronic devices, to the point that she “cannot use
her computer, television, or tablet without Defendants'
interference.” Id. ¶ 26. Similarly, she
says, “[h]er passwords to her computer, bank accounts,
and phones have all been changed without her knowledge or
Camper's mother raises many similar allegations in a
declaration enclosed as an exhibit to the
Complaint. See Atlee Camper Decl., ECF No.
1-10. There, she alleges their “mobile phones are
tapped regularly and computers infiltrated”; that their
homes “are constantly invaded by [people] we believe
are N.S.A. and CIA contractors, with items taken”; and
that both women “are followed every where we go, e.g.
the doctors, the grocery store, malls, and we were even
monitored cross country while my husband and son were
fighting cancer and dying.” Id. ¶¶
3, 4, 12. She further alleges the NSA was responsible for her
daughter's arrest in Georgia on assault and robbery
charges. See Id. ¶ 4. She said her daughter
came to understand that the case, which later was dismissed,
was set up as “a test to find out what her response
would be to jail if sent overseas on an assignment for the
government.” Id. ¶ 7.
10, 2015, Ms. Camper submitted a request under the Freedom of
Information Act (“FOIA”), asking the NSA for
records relating to any possible investigation that might
involve her. See ECF Nos. 1-4, 19-5. The NSA denied
the request, explaining that “the fact of the existence
or non-existence of responsive records is a currently and
properly classified matter in accordance with Executive Order
13526.” ECF No. 1-4. Ms. Camper appealed the denial,
see ECF No. 1-5, but her Complaint does not note
what, if anything, came of the appeal.
January 2018, Plaintiffs' counsel sent the NSA's
general counsel a letter requesting “verification from
the NSA of any record of Ms. Camper or surveillance of
her.” ECF No. 1-13; see Compl. ¶ 31. The
letter explained, “We are trying to head off a lawsuit
that will needlessly consume lots of attorney fees.”
ECF No. 1-3. The NSA did not respond, see Compl.
¶ 31, and this lawsuit followed. The Complaint asserted
eight claims: (1) negligence, (2) intentional infliction of
emotional distress, (3) invasion of privacy under common law,
(4) violation of the Privacy Act, (5) invasion of privacy
under Michigan common law, (6) invasion of privacy under
Mississippi common law, (7) deprivation of procedural due
process, and (8) violation of constitutional rights under
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). See Compl.
and Mr. Rogers (collectively, “Defendants”) moved
for dismissal under Rules 12(b)(1) and 12(b)(6) of the
Federal Rules of Civil Procedure. Mot. to Dismiss, ECF No.
19. As a general matter, the motion argued that the Court
lacks jurisdiction over Plaintiffs' “speculative,
implausible, and frivolous” claims. Defs.' Mem. 3,
ECF No. 19-1. It then argued that each of Plaintiffs'
claims would fail in any event for a number of other reasons.
For one thing, it said, Plaintiffs failed to exhaust their
administrative remedies with respect to their common law tort
claims (Counts 1-3, 5, and 6), as required by the Federal
Tort Claims Act (“FTCA”). See Id. The
motion further argued that sovereign immunity barred the
constitutional claims (Counts 7 and 8) against the NSA and
Mr. Rogers (insofar as they sought to hold him liable in his
official capacity), and that there was no basis for holding
Mr. Rogers liable in his personal capacity. See Id.
response to the motion contained a number of concessions,
acknowledging that Defendants' “contentions
regarding the Federal Tort Claims Act (FTCA) and
Bivens actions are dispositive.” Opp'n
1. Consequently, I dismissed the tort claims (Counts 1-3, 5,
and 6) without prejudice. See ECF No. 25. And though I
did not address the matter at the time, I am now dismissing
the two constitutional claims (Counts 7 and 8) for the same
have maintained that their Privacy Act claim (Count 4) should
proceed, asserting that the NSA has yet to give Ms. Camper a
chance to review its records relating to her. See
Opp'n 9. Separately, they have asked for leave to amend
their complaint so as to reassert their Bivens
claims against unnamed individual defendants. See
Id. at 10. The defendants would be identified as
“John Doe” because “Plaintiffs are not
aware of who exactly has been hired from the NSA to
perpetrate the intrusions and electronic surveillance
detailed [in the Complaint].” Id.
motion is fully briefed. See ECF Nos. 19, 24, 26.
No. hearing is necessary. See Loc. R. 105.6.
have moved for dismissal under both Rule 12(b)(1) and Rule
12(b)(6). A Rule 12(b)(1) motion challenges the district
court's subject matter jurisdiction, asserting, in
effect, that the plaintiff lacks any “right to be in
the district court at all.” Holloway v. Pagan River
Dockside Seafood, Inc., 669 F.3d 448, 452 (4th Cir.
2012). The burden of establishing the court's subject
matter jurisdiction rests with the plaintiff. Evans v.
B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). The
district court should grant the 12(b)(1) motion “only
if the material jurisdictional facts are not in dispute and
the moving party is entitled to prevail as a matter of
law.” Balfour Beatty Infrastructure, Inc. v. Mayor
& City Council of Balt., 855 F.3d 247, 251 (4th Cir.
2017) (quoting Evans, 166 F.3d at 647).
12(b)(6) motion, by contrast, “tests the
sufficiency” of the plaintiff's complaint.
Vance v. CHF Int'l, 914 F.Supp.2d 669, 677 (D.
Md. 2012). Under Rule 8(a)(2), the complaint must contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). Beyond that, the Supreme Court has held that claims
for relief must be “plausible, ” specifying that
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662,
678-79 (2009). “A claim has facial ...