Attkisson v. Holder
241 F. Supp. 3d 207
D.D.C.2017Background
- Sharyl Attkisson, a CBS investigative reporter living in Virginia, and her family experienced repeated anomalous electronic activity at their Virginia home while she reported on high-profile government matters.
- Forensic analysis allegedly showed sophisticated remote infiltration of Attkisson’s work laptop, family desktop, and mobile phone; some forensic indicators pointed to use of government-owned IP addresses and proprietary government software.
- The Attkissons sued the United States and federal officials (including former AG Eric Holder and former Postmaster General Patrick Donahoe) asserting FTCA claims against the United States and Bivens claims against individual officers.
- Defendants moved to dismiss for improper venue, lack of subject-matter jurisdiction, and failure to state a claim; the court consolidated two related actions and considered an amended motion to dismiss.
- The court held FTCA venue is governed by 28 U.S.C. § 1402(b) and found the tortious acts and their effects occurred in Virginia, not D.C.; therefore FTCA venue in D.C. is improper.
- In the interest of justice the court transferred the entire consolidated case to the Eastern District of Virginia, granted the venue challenge as to FTCA claims, and denied the remainder of the motion without prejudice so defendants may refile in the transferee court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FTCA venue is proper in D.C. | Attkisson: substantial activity giving rise to FTCA claims occurred in D.C. (her reporting and defendants’ headquarters activities; devices traveled to D.C.) | Defendants: Plaintiffs reside and the complained acts occurred in Virginia; FTCA venue limited to where plaintiff resides or act occurred | Venue improper in D.C. for FTCA claims; proper in Eastern District of Virginia |
| Whether plaintiffs may rely on pendent venue for non-FTCA claims | Attkisson: related claims arise from common facts so should remain in D.C. | Defendants: FTCA has specific venue statute limiting pendent venue application | Court refused to apply pendent venue to FTCA claims; transferred entire case for judicial efficiency |
| Whether transfer or dismissal is appropriate for improper venue | Attkisson: implied preference to proceed in D.C.; sought to keep case here | Defendants: asked for dismissal or transfer to Eastern District of Virginia | Court transferred the entire consolidated case to the Eastern District of Virginia (interest of justice favors transfer) |
| Whether factual allegations about device movement and D.C. effects suffice to establish venue | Attkisson: devices regularly traveled to D.C., so infiltration occurred there too | Defendants: complaint lacks allegations that devices were moved to D.C.; effects were suffered at Virginia home | Court: complaint does not plead sufficient facts showing acts or effects occurred in D.C.; D.C. allegations are insubstantial relative to Virginia effects |
Key Cases Cited
- Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422 (federal courts may choose among threshold grounds for denying audience to a case)
- Pub. Citizen v. U.S. Dist. Court for D.C., 486 F.3d 1342 (jurisdictional issues can be deferred when court will not decide merits)
- Darby v. U.S. Dep’t of Energy, 231 F. Supp. 2d 274 (standard for Rule 12(b)(3) venue motions; pleadings and inferences)
- Franz v. United States, 591 F. Supp. 374 (FTCA venue requires sufficient activities giving rise to the claim in the chosen district)
- Sanchez v. United States, 600 F. Supp. 2d 19 (acts occurring in one district but intended effects elsewhere are treated as occurring where effects are directed)
- Reuber v. United States, 750 F.2d 1039 (when conduct has intended effects in another jurisdiction, act occurs where effects are directed)
- Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (authorizes damages claims against federal officers for constitutional violations)
- Naartex Consulting Corp. v. Watt, 722 F.2d 779 (transfer vs dismissal discretion for improper venue)
- Nat’l Wildlife Fed’n v. Browner, 237 F.3d 670 (standard remedy for improper venue is transfer to preserve review)