300 F. Supp. 3d 158
D.C. Cir.2018Background
- Plaintiffs Dennis Montgomery (former intelligence contractor) and Larry Klayman sued FBI, CIA, NSA, several current/former officials, alleging mass unconstitutional surveillance, targeted hacks of their devices, and a cover-up by the FBI after Montgomery turned over 47 hard drives.
- Montgomery alleges he surrendered hard drives and gave a recorded FBI interview (FD-302) after promises of an investigation that never occurred; he claims the drives and interview contain evidence of mass surveillance.
- Klayman alleges his cell phones were compromised after contacting congressional intelligence committees and that malware/battery drain indicate government hacking.
- Plaintiffs assert claims under the First and Fourth Amendments, Privacy Act, and common-law torts (conversion, fraudulent misrepresentation), and seek appointment of a special master and injunctive relief.
- Defendants moved to dismiss and for partial summary judgment; court consolidated briefing with plaintiffs’ preliminary-injunction motion.
- The Court dismissed the complaint with prejudice, granted government motions, denied the injunction, and granted summary judgment on the Privacy Act claim (exemption).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge PRISM (Section 702) | Plaintiffs say PRISM and related targeting surveilled them and others | Defendants: plaintiffs do not allege communications with foreign targets or facts required by Clapper | No standing; Clapper forecloses PRISM challenge absent specific foreign-target allegations |
| Standing to challenge bulk telephony metadata (Section 215) | Plaintiffs claim they and millions were subject to bulk metadata collection | Defendants: bulk program is statutorily and court-limited (USA FREEDOM Act, FISC); presumed compliance | Dismissed as non-justiciable/moot — bulk program discontinued and barred by statute/FISC order |
| Alleged device hacking and surveillance (Fourth/First Amendment) | Plaintiffs allege IP traces and device behavior show targeted hacking and chilling of speech | Defendants: allegations are speculative, conclusory, and patently insubstantial | Dismissed for lack of Article III standing and as patently insubstantial/inadequate factual pleading |
| Request for Special Master | Plaintiffs seek independent investigation of hard drives and device hacks | Defendants oppose; Rule 53 appointment unwarranted without consent or exceptional circumstances | Denied: Rule 53 requirements unmet (no consent, no exceptional condition, not for accounting) |
| Conversion / Fraudulent misrepresentation claims & Privacy Act access | Plaintiffs seek return/value of hard drives and FBI FD-302s; allege FBI misrepresentations induced surrender | Defendants: sovereign immunity, FTCA is exclusive remedy and United States not named; FD-302s exempt from Privacy Act (5 U.S.C. §552a(j)(2)) | Conversion/fraud claims dismissed for lack of subject-matter jurisdiction (sovereign immunity/FTCA); Privacy Act claim denied—FD-302s exempt as law-enforcement records |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading: discard conclusory allegations)
- Clapper v. Amnesty Int’l USA, 568 U.S. 398 (standing requires concrete, imminent risk for surveillance challenges)
- Bivens v. Six Unknown Named Agents, 403 U.S. 388 (implies remedy for constitutional torts against federal officers)
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (preliminary injunction standard: likelihood of success and irreparable harm)
- FDIC v. Meyer, 510 U.S. 471 (sovereign immunity is jurisdictional)
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment burden-shifting)
- Tooley v. Napolitano, 586 F.3d 1006 (patently insubstantial surveillance allegations may be dismissed)
- Doe v. Gates, 981 F.2d 1316 (summary judgment/standing principles in D.C. Circuit)