422 F.Supp.3d 51
D.D.C.2019Background
- Jerome Corsi, a political author, sued the United States (DOJ, FBI, NSA, CIA) and Special Counsel Robert Mueller (official and individual capacity), alleging Mueller pressured him to give false grand‑jury testimony, leaked grand‑jury information, and conducted unlawful electronic surveillance under FISA §702.
- Corsi conceded he testified truthfully, was never indicted, and Mueller’s investigation and the grand jury have concluded; Mueller resigned as Special Counsel.
- Corsi’s amended complaint asserted: (1) Fourth Amendment/§702 surveillance violations (Bivens against Mueller), (2) a Rule 6(e) grand‑jury disclosure claim against Mueller, (3) abuse of process, and (4) tortious interference with business relationships (FTCA claims against the United States after Westfall certification).
- Defendants moved to dismiss (Fed. R. Civ. P. 12(b)(1),(5),(6)); Mueller also invoked a Westfall certification and challenged personal service; Corsi moved for leave to add a First Amendment retaliation Bivens claim against Mueller.
- The Court held service on Mueller was insufficient (so individual‑capacity claims dismissed without prejudice for service), but proceeded to dismiss the claims on the merits or jurisdictional grounds and denied leave to amend as futile.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing for §702/FISA and Fourth Amendment surveillance claim | Corsi alleges communications with foreign contacts and evidence of intercepted messages, so he fears surveillance and injury | Defendants say allegations are speculative and indistinguishable from Clapper; no actual or imminent injury | Dismissed for lack of standing (Clapper controls) |
| Bivens remedy for alleged unlawful electronic surveillance against Mueller personally | Bivens permits damages for constitutional violations by federal officers | Defendants argue Bivens should not be extended to this context, alternative statutory schemes exist, and qualified immunity applies | Bivens claim fails; court declines to extend Bivens and dismisses with prejudice |
| Rule 6(e) claim for grand‑jury leaks (injunctive relief / civil contempt) | Mueller and staff leaked grand‑jury information to the press; Corsi seeks injunction or contempt | Defendants: (1) injunctive relief not available against officials personally, (2) Corsi failed to use grand‑jury supervision procedure, (3) news articles do not show direct grand‑jury disclosures | Dismissed: no proper injunctive remedy here; claim must be pursued before grand‑jury supervising judge; articles do not establish Rule 6(e) violation |
| Abuse of process and tortious interference (FTCA / Westfall) | Alleged prosecution threats and pressure harmed Corsi and his business relationships | Defendants: Westfall certification substitutes United States; FTCA requires administrative exhaustion and bars claims arising from abuse of process or interference with contract rights under §2680(h) | Dismissed with prejudice: Westfall certification sustained, FTCA exhaustion not shown, claims barred by §2680(h) |
| Service of process on Mueller (individual capacity) | Corsi asserts service was effected through DOJ on April 17, 2019 | Mueller: service not timely (Rule 4(m)) and not properly effected under Rule 4(e) | Service insufficient; claims against Mueller in individual capacity dismissed without prejudice for service failure (court also disposed on other grounds) |
| Leave to amend to add First Amendment retaliation Bivens claim | Corsi alleges threat of indictment to coerce false testimony chilled his protected speech | Defendants: novel Bivens context, special factors counsel against judicially creating remedy, qualified/absolute immunity; no illicit motive or lack of probable cause pleaded | Leave denied as futile: claim presents novel Bivens context and special factors bar extension; qualified immunity also applicable |
Key Cases Cited
- Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) (recognized an implied damages remedy for certain Fourth Amendment violations)
- Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) (plaintiffs lacked standing to challenge §702 surveillance absent imminent injury)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard: must allege individual official’s own unconstitutional conduct)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility pleading standard)
- Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) (expansion of Bivens remedies is disfavored; special‑factors analysis)
- Hartman v. Moore, 547 U.S. 250 (2006) (retaliatory‑prosecution framework requires pleading lack of probable cause)
- Wilkie v. Robbins, 551 U.S. 537 (2007) (declined Bivens extension in novel context involving regulatory enforcement)
- Wayte v. United States, 470 U.S. 598 (1985) (prosecutorial discretion is ill‑suited to judicial review)
- Bordenkircher v. Hayes, 434 U.S. 357 (1978) (legitimate prosecutorial plea‑bargaining tactics, even with threats of harsher charges, do not violate Due Process)