Camper v. National Security Agency

          MEMORANDUM OPINION AND ORDER

          PAUL W. GRIMM UNITED STATES DISTRICT JUDGE

         This is 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.

         I am 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.

         FACTUAL BACKGROUND

         The 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.

         The 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.

         Incidents 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.

         The 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.”^[1] 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 consent.” Id.

         Ms. Camper's mother raises many similar allegations in a declaration enclosed as an exhibit to the Complaint.^[2] 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.

         On June 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.^[3]

         In 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. ¶¶ 32-72.

         The NSA 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. at 4.

         Plaintiffs' 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.^[4] 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 reason.

         Plaintiffs 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.

         Defendants' motion is fully briefed. See ECF Nos. 19, 24, 26. No. hearing is necessary. See Loc. R. 105.6.

         STANDARD OF REVIEW

         Defendants 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).

         A 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 ...