JEROME CORSI, Plaintiff, v. ROBERT MUELLER, et al., Defendants.
Civil Action No. 18-02885 (ESH)
MEMORANDUM OPINION
Plaintiff Jerome Corsi brings this action against the Department of Justice; the Federal Bureau of Investigation; the National Security Agency; the Central Intelligence Agency (collectively, “the government“); and Robert Mueller, in both his individual capacity and his official capacity as Special Counsel. Before the Court are defendants’ three motions to dismiss and plaintiff‘s motion for leave to file a second amended complaint in order to add a First Amendment retaliation count against Mueller in his personal capacity. For the reasons stated herein, the motions to dismiss will be granted, and the motion to file a second amended complaint will be denied.
BACKGROUND
I. FACTS
According to the amended complaint, Corsi is an “investigative conservative journalist and author,” “a strong supporter of President Trump,” and has researched Hillary Clinton‘s use of a private email server to conduct government business while Secretary of State. (Am. Compl. ¶¶ 15–16, 27, ECF No. 15.) The amended complaint alleges that Corsi‘s research and political affiliations prompted the government and Mueller, then-Special Counsel, to attempt “to coerce, extort, threaten and/or blackmail Plaintiff Corsi into testifying falsely” before the grand jury convened to investigate Russian interference in the 2016 U.S. Presidential election. (Id. ¶¶ 20–22.) Specifically, Corsi claims that “Defendant Mueller and his prosecutorial staff” sought to force Corsi to testify before the grand jury that Corsi “acted as a liaison between Roger Stone and Wikileaks leader Julian Assange concerning the public release of emails obtained from the DNC‘s servers.” (Id. ¶ 23.) Corsi allegedly told Mueller that the desired testimony would be false. (Id. ¶ 22.) Corsi claims that, despite this, “Defendant Mueller . . . threatened to indict Plaintiff Corsi and effectively put him in federal prison for the rest of his life” if he did not provide the testimony Mueller wanted. (Id. ¶ 22.)
Corsi further alleges that “Mueller and his staff have leaked grand jury information to the press concerning Plaintiff Corsi.” (Id. ¶ 25.) Corsi cites two news articles that, he alleges, “contain[] confidential information regarding the grand jury proceedings about Plaintiff Corsi that could only possibly have come from Defendant Mueller.” (Id. ¶ 26; see also id. ¶¶ 26 n.3, 28 n.4.) Corsi also claims that the government and Mueller “have engaged in ongoing illegal, unconstitutional surveillance on Plaintiff Corsi . . . at the direction of Defendant Mueller.” (Id. ¶ 30.) To support this, he alleges that (1) the government “[n]ecessarily” discovered the identity of
Despite the alleged pressure put on him by defendants, Corsi states that he testified truthfully before the grand jury. (See id. ¶ 29; see also Pl.‘s Opp‘n to Mueller‘s Mot. at 2, ECF No. 40 (“Plaintiff Corsi chose to exercise his First Amendment (and moral) right to give a truthful account of the events of the Russian collusion investigation.“).) And although he alleges that Mueller threatened to indict him, he has never been indicted. (Hr‘g Tr. at 35:4–35:5, Oct. 2, 2019, ECF No. 58 (“Tr.“).) Moreover, Mueller‘s investigation concluded on March 22, 2019, the grand jury has been dismissed, and Mueller has resigned as Special Counsel. (See Pl.‘s Opp‘n to Mueller‘s Mot. at 4; Mueller‘s Mot. to Dismiss at 2, ECF No. 27 (“Mueller‘s Mot.“).)
II. PROCEDURAL HISTORY
Corsi initiated this action on December 9, 2018, against the government and Mueller. On January 21, 2019, he filed an amended complaint, three defendants—Jeff Bezos, the Washington Post, and a Washington Post reporter. Count One alleges that Mueller and the government violated the Fourth Amendment and
In his prayer for relief, Corsi seeks “equitable, declaratory, and injunctive relief;” and general and punitive damages in excess of $1,600,000,000. (Notice of Errata, Ex. 1, ECF No. 16-1 (correcting amended complaint).) Since filing his amended complaint, Corsi has voluntarily dismissed Bezos, the Washington Post, and the Washington Post reporter. (Notice of Voluntary Dismissal, ECF No. 56.) Thus, Counts One through Four are the only remaining counts, and only the government and Mueller are named as defendants.
The government and Mueller have moved to dismiss Corsi‘s amended complaint pursuant to
On October 2, 2019, the Court held a hearing, and it is now ready to rule on defendants’ three motions to dismiss and plaintiff‘s motion for leave to file a second amended complaint.
ANALYSIS
I. DEFENDANTS’ MOTIONS TO DISMISS
A. Legal Standards
1. Federal Rule of Civil Procedure 12(b)(1)
Under
Under
3. Federal Rule of Civil Procedure 12(b)(6)
To survive a
B. The Service of Process on Mueller was Insufficient
In his motion to dismiss, Mueller argues that Corsi failed to serve him in accordance with
Corsi never even attempted to serve Mueller before March 11, nor did he request an extension of time for service. Instead, Corsi claims that he subsequently attempted to serve Mueller twice, once on April 12, 2019, through employees at the Office of Special Counsel,3 and again on April 17, 2019, at the Department of Justice. (Pl.‘s Opp‘n to Mueller‘s Mot. at 3–4.) Without offering any proof of service, Corsi asserts that “service was . . . effected on April 17, 2019[,] through the Department of Justice.” (Id. at 4.)
Corsi has failed to meet his burden of establishing that service was effected in accordance with either the timeliness or manner requirements of
Corsi has also failed to show that he served Mueller as required by
Corsi asks the Court to overlook this failure because “it is clear that Defendant Mueller and his attorneys have received
C. Corsi‘s Fourth Amendment Claims
The first count of Corsi‘s amended complaint alleges that both Mueller and the government conducted “illegal and unconstitutional surveillance” of Corsi in violation of the Fourth Amendment and
The government argues that this Court lacks jurisdiction under
1. Corsi Lacks Standing to Bring Count One
As a threshold matter, the Court considers whether Corsi has alleged sufficient facts to establish standing. The party invoking federal jurisdiction has the burden of establishing standing by showing that (1) he suffered an injury in fact, (2) the injury is “fairly traceable” to the
Corsi fails to plead an actual or imminent injury. His claim regarding FISA is foreclosed by the Supreme Court‘s ruling in Clapper, where the plaintiffs sought an injunction to prevent the government from conducting surveillance under
In disregard of this ruling, plaintiff‘s counsel, Larry Klayman, has on multiple occasions attempted to bring claims of illegal surveillance identical to or even more deficient than the claims alleged by the plaintiffs in Clapper. In Klayman v. Obama, 957 F. Supp. 2d 1, 8 n.6 (D.D.C. 2013), vacated and remanded on other grounds, 800 F.3d 559 (D.C. Cir. 2015). The district court held that the plaintiffs lacked standing to bring this claim, noting that “plaintiffs here have not even alleged that they communicate with anyone outside the United States at all,” making their claims “even less colorable than those of the plaintiffs in Clapper.” Id. Undeterred, plaintiff‘s counsel filed a separate complaint, again on behalf of himself and other plaintiffs and again alleging that the plaintiffs’ communications were being illegally collected via the PRISM program. See Klayman v. Nat‘l Sec. Agency, 280 F. Supp. 3d 39, 55–56 (D.D.C. 2017). This time, the complaint alleged that plaintiff‘s counsel “frequents and routinely telephones and e-mails individuals and high-ranking government officials in Israel, a high-conflict area where the threat of terrorism is always present“; that he met and communicated “with persons in Israel, Spain, the United Kingdom, and several other European nations which have very
Appellants here allege no more than that they communicate with various individuals in countries Appellants imagine might attract government surveillance. They provide no more specific reason to suspect their contacts are targets of the PRISM program or that their own communications will be collected. They therefore have failed to allege the kind of actual or imminent injury required by Clapper.
Klayman v. Obama, 759 F. App‘x 1, 4 (D.C. Cir. 2019) (per curiam).
Most recently, in Montgomery v. Comey, plaintiff‘s counsel again raised the same claim of illegal surveillance through the PRISM program on behalf of himself and another plaintiff. 300 F. Supp. 3d 158, 166–67 (D.D.C. 2018). Plaintiff‘s counsel alleged that he “made international phone calls and exchanged correspondence with individuals located in foreign nations within the past two years.” Montgomery v. Comey, 752 F. App‘x 3, 4 (D.C. Cir. 2019) (per curiam). The district court again relied on Clapper to dismiss the plaintiffs’ PRISM surveillance claim. 300 F. Supp. 3d at 167–68. The D.C. Circuit affirmed, holding that plaintiff‘s counsel‘s single allegation “without elaboration” was a “threadbare claim . . . inadequate under Clapper.” Montgomery v. Comey, 752 F. App‘x at 4.
Despite the fact that his prior claims of illegal surveillance under PRISM have consistently been rejected, plaintiff‘s counsel persists with an even more deficient allegation here—that Corsi “routinely speaks with persons located overseas in regions that are surveilled under PRISM.” (Am. Com. ¶ 33.) This type of claim has been rejected by the Supreme Court in Clapper and in the three cases that plaintiff‘s counsel has brought in this Court. Accordingly, there is no basis for the Court to find standing in this case.
Corsi‘s Fourth Amendment claim fares no better. His assertion that the government discovered the identity of his stepson by intercepting his electronic communications relies on nothing but speculation. (Am. Compl. ¶ 31.) As Corsi cannot show that the government actually intercepted his communications, as opposed to using other investigative methods that would not implicate his Fourth Amendment rights, he has no basis to support an inference of standing. See, e.g., Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). Similarly, he claims to have evidence that the government has attempted to intercept his cellphone conversations. Corsi fails, however, to allege an injury because
2. Corsi Fails to State a Bivens Claim Against Mueller
In addition to a lack of standing, Corsi fails to state a claim against Mueller in his individual capacity, for he does not allege personal involvement on the part of Mueller. It is well established that ”Bivens claims cannot rest merely on respondeat superior.” Simpkins, 108 F.3d at 369 (citation omitted); see also Iqbal, 556 U.S. at 676 (“Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.“). Instead, “a plaintiff must plead that each Government-official defendant, through the official‘s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676 (emphasis added); see also Simpkins, 108 F.3d at 369 (“The complaint must at least allege that the defendant federal official was personally involved in the illegal conduct.“). Instead of alleging any individualized conduct by Mueller, Corsi baldly asserts, without factual support, that any alleged violations took place “at the direction of Defendant Mueller.” (Am. Compl. ¶ 30; see also id. ¶ 32 (“This illegal and unconstitutional surveillance is being carried out . . . at the direction of Mueller . . . .“).) But “to show that . . . action was taken at the direction of another requires more than just the conclusion that this is what occurred.” Acosta Orellana v. CropLife Inter., 711 F. Supp. 2d 81, 112 (D.D.C. 2010).
At the hearing, when asked what facts in the complaint supported the allegation that Mueller directed his subordinates to violate Corsi‘s constitutional rights, plaintiff‘s counsel cited only to “the mandate that [Mueller] got from the Department of Justice which puts him in charge.” (Tr. at 9:5–9:6.) This, he claimed, shows that Mueller “is responsible for what goes on in the office,” he “is the guy in charge,” and “[t]he buck stops on his desk.”6 (Id. at
3. Corsi‘s Claim Presents a New Bivens Context and Special Factors Counsel Against Recognizing a Bivens Claim in This Case
In Bivens, the Supreme Court allowed a victim of a warrantless search and seizure with no alternative remedies to sue a federal official personally for damages for an allegedly abusive search and arrest in his home. Bivens, 403 U.S. at 389. But since then the Court “has made clear that expanding the Bivens remedy is now a ‘disfavored’ judicial activity,” Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017) (citation omitted), and no case has extended Bivens to warrantless wiretaps. In fact, several courts have expressly declined to do so based on “alternative, existing process[es].” Wilkie v. Robbins, 551 U.S. 537, 550 (2007); see, e.g., Attkisson v. Holder, 925 F.3d 606, 621–22 (4th Cir. 2019) (declining to extend Bivens to alleged illegal electronic surveillance because “Congress has legislated extensively in the area of electronic surveillance and intrusions into electronic devices without authorizing damages for a Fourth Amendment violation in such circumstances“); Brunoehler v. Tarwater, 743 F. App‘x 740, 742–43 (9th Cir. 2018) (declining to extend Bivens to an alleged illegal wiretap in part because the Wiretap Act provides an alternative remedial structure); Kelley v. FBI, 67 F. Supp. 3d 240, 270–72 (D.D.C. 2014) (declining to extend Bivens in part because the alleged unlawful search and seizure of the plaintiff‘s emails is redressable under the Electronic Communications Privacy Act); see also Mitchell v. Forsyth, 472 U.S. 511, 542 (1985) (Stevens, J., concurring) (“[I]t is highly doubtful whether the rationale of Bivens . . . even supports an implied cause of action for damages after Congress has enacted legislation comprehensively regulating the field of electronic surveillance but has specifically declined to impose a remedy for [a specific type of wiretap].“). These remedies include the Wiretap Act, which provides equitable and declaratory relief, money damages, and fees to “any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used” unlawfully,
Corsi offers nothing to rebut these cases; instead, he relies on Carpenter v. United States, 138 S. Ct. 2206 (2018), to argue that a Bivens action exists to remedy the violation he alleges. (Pl.‘s Opp‘n to Mueller‘s Mot. at 9–11.) But Carpenter is neither a Bivens case nor is it about illegal surveillance of cellular communications. Instead, it addressed the need for a warrant to
Despite the existence of these statutes, Corsi claims that no alternative remedy exists for the particular constitutional violation he alleges. (Pl.‘s Opp‘n to Mueller‘s Mot. at 12–13.) Even if that were true—which it is not—it is not dispositive. Indeed, the relevant analysis “does not turn on whether the statute provides a remedy to the particular plaintiff for the particular claim he or she wishes to pursue.” Wilson v. Libby, 535 F.3d 697, 709 (D.C. Cir. 2008); see also id. (“[A] comprehensive statutory scheme precludes a Bivens remedy even when the scheme provides the plaintiff with no remedy whatsoever.” (citation and internal quotation marks omitted)). “Instead, it is the ‘comprehensiveness of the statutory scheme involved, not the ‘adequacy’ of specific remedies extended thereunder, that counsels judicial abstention.‘” Jangjoo v. Sieg, 319 F. Supp. 3d 207, 218 (D.D.C. 2018) (quoting Spagnola v. Mathis, 859 F.2d 223, 227 (D.C. Cir. 1988)). Where “Congress has put in place a comprehensive system to administer public rights, has not inadvertently omitted damages remedies for certain claimants, and has not plainly expressed an intention that the courts preserve Bivens remedies, we cannot create additional remedies.” Wilson, 535 F.3d at 709–10 (citation and internal quotation marks omitted). Thus, in the area of electronic surveillance, Congress, not the Court, “should decide whether [the remedy sought by Corsi] should be provided.” Liff v. Office of Inspector Gen., 881 F.3d 912, 918 (D.C. Cir. 2018); see also Davis v. Billington, 681 F.3d 377, 387 (D.C. Cir. 2012) (listing cases denying a Bivens claim even where an alternative remedial scheme did not provide the plaintiff with any relief for the alleged constitutional violations).7
Accordingly, Corsi has failed to state a claim in Count One against Mueller in his individual capacity, and the Court will dismiss that claim with prejudice.
D. Corsi Has No Cause of Action Under Federal Rule of Criminal Procedure 6(e)(2)
Count Two of Corsi‘s amended complaint, brought against only Mueller, alleges that Mueller violated
Mueller‘s interest in Corsi is believed to stem from his alleged early discussions about efforts to unearth then-candidate Hillary
Clinton‘s emails. The special counsel has evidence that suggests Corsi may have had advance knowledge that the email account of Clinton‘s campaign manager, John Podesta, had been hacked and that WikiLeaks had obtained a trove of damning emails from it, two sources with direct knowledge of the matter told ABC News.
Id. The remainder of the article provides general background information on Corsi. See id.
The second article cited by Corsi reports that Corsi helped to raise $25,000 to pay for an Alaskan man‘s cancer treatment by a doctor “who doesn‘t appear to exist.” Chuck Ross, Mueller Target Raised $25,000 In Charity To Pay Cancer Doctor Who Doesn‘t Appear To Exist, Daily Caller (Dec. 13, 2018, 10:26 p.m.), https://dailycaller.com/2018/12/13/corsi-mueller-doctor-cancer/ (the “Daily Caller Article“). With regard to Mueller‘s investigation, the article notes that Corsi was subpoenaed by Mueller and states:
Mueller is interested in Corsi‘s links to Trump confidant Roger Stone and WikiLeaks. Corsi claimed Mueller wants him to testify that he was a link between Stone and WikiLeaks, which on Oct. 7, 2016, published emails stolen from Clinton campaign chairman John Podesta.
Id. Corsi alleges that the author of this article “told Dr. Corsi that he indeed had obtained information about this grand jury testimony from persons working under the direction of . . . Mueller.” (Am. Compl. ¶ 28.)
According to his amended complaint, Corsi seeks only injunctive relief to remedy these putative violations. (Am. Compl. ¶ 53.) At oral argument, plaintiff‘s counsel asserted that Count Two names Mueller in both his individual and official capacities. (Tr. at 21:8-10.) But injunctive relief is not available against officials in their personal capacities. BEG Invs. v. Alberti, 34 F. Supp. 3d 68, 80 (D.D.C. 2014) (“Courts have concluded that there is no basis for suing a government official for declaratory and injunctive relief in his or her individual or personal capacity.” (citations and internal
Corsi has also failed to show that he is entitled to an injunction against Mueller in his official capacity. “Injunctive relief is an ‘extraordinary and drastic’ remedy, which is available only upon an evidentiary showing of ‘certain,’ ‘great,’ and imminent harm.” 12 Percent Logistics, Inc. v. Unified Carrier Registration Plan Bd., 289 F. Supp. 3d 73, 79 (D.D.C. 2018) (quoting Munaf v. Geren, 553 U.S. 674, 689 (2008), and Wis. Gas Co., 758 F.2d at 674). Mueller‘s investigation has ended, and the grand jury is no longer in existence. The only imminent harm he now asserts is a fear of future grand jury leaks, based on his predictions that “[s]tuff [will] start flying out of files again.” (Tr. at 44:22.) But this speculative harm cannot suffice.
Corsi changed his tune at the hearing, and he now seeks to hold Mueller in civil contempt. (Id. at 21:12.) While civil contempt is available to remedy violations of
There is also a serious question as to whether the allegations in Corsi‘s complaint constitute a
The articles cited by Corsi neither “directly reveal grand jury matters,” nor indicate that the source of the information is Mueller or his staff. The ABC News Article article merely suggests a reason for Mueller‘s interest in Corsi and asserts that he has evidence that may prove a fact but does not reveal what that evidence is. The article explicitly references Mueller‘s “case,” indicating that the information relates to his investigation and not to the grand jury‘s investigation.10 Moreover, the article does not attribute any information to Mueller or anyone else associated with the grand jury investigation.
Corsi alleges that the Daily Caller Article contains information on matters occurring before the grand jury because it “report[s] . . . that a physician known as Dr. Mendelsohn and others who received cancer treatment by him . . . were subpoenaed to appear before the Mueller grand jury.” (Am. Compl. ¶ 28.) But this allegation is flatly contradicted by the article, which names only Corsi, and no one else, as having been subpoenaed by the grand jury. And the article identifies Corsi, not Mueller or his staff, as the source of that information.11
E. Corsi Cannot Bring Claims for Abuse of Process and Tortious Interference with Business Relationships
Counts Three and Four of Corsi‘s amended complaint allege abuse of process and tortious interference with business relationships against all defendants. (See Am. Compl. ¶¶ 54-65.) Specifically, Count Three alleges that defendants “abused and perverted the Court‘s judicial processes by threatening Plaintiff Corsi with prosecution and prison if he did not provide sworn testimony that Defendants knew to be false . . . .” (Id. ¶ 55.) He also claims that “Mueller has . . . abused this Court‘s grand jury and other legal processes by subpoenaing, without any reasonable or probable cause, members of Plaintiff‘s family . . . to appear before the grand jury and/or to be interviewed by his FBI agents . . . .” (Id. ¶ 57.) Count Four alleges that defendants
intentionally and/or negligently tortuously [sic] interfered with Plaintiff‘s existing business relationships by recently threatening one or more of these publishers and sellers of his book with a subpoena or other legal action and by threatening and intimidating and having published and publishing false information [about] Dr. David Jones, Alex Jones, InfoWars and Plaintiff Corsi, maliciously and falsely claiming that Dr. David Jones, Alex Jones and InfoWars was [sic] paying hush money to keep
him quiet about their actions, with the intent to get them to terminate their business relationships with Plaintiff, thus depriving Plaintiff of income to pay his legal fees and expenses as well as for him and his family to survive generally.
(Id. ¶ 63.)
Mueller argues that these claims may not be brought against him because the government has certified that he was acting within the scope of his employment, and, thus, under
1. Individual Capacity Claims Against Mueller Must Be Dismissed Due to the Westfall Certification
The Court first considers whether Counts Three and Four may be maintained against Mueller in his individual capacity. “The Federal Employees Liability Reform and Tort Compensation Act of 1988, commonly known as the Westfall Act, accords federal employees absolute immunity from common-law tort claims arising out of acts they undertake in the course of their official duties.” Osborn v. Haley, 549 U.S. 225, 229 (2007) (citing
Although the Attorney General‘s certification “constitutes prima facie evidence that the employee was acting within the scope of his employment,” a plaintiff may only rebut the certification and obtain discovery by “alleg[ing] sufficient facts that, taken as true, would establish that the defendant‘s actions exceeded the scope of his employment.” Wuterich v. Murtha, 562 F.3d 375, 381 (D.C. Cir. 2009) (citations and internal quotation marks omitted). In determining whether a plaintiff has met this burden, this Court looks to the Restatement (Second) of Agency, id. at 383, which provides:
(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master, and
(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master. (2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master[,]
Restatement (Second) of Agency § 228. This test has been interpreted broadly, such that it “is akin to asking whether the defendant merely was on duty or on the job when committing the alleged tort.” Jacobs v. Vrobel, 724 F.3d 217, 221 (D.C. Cir. 2013) (citation omitted). In determining whether conduct is “of the kind [an employee is] employed to perform,” courts must “focus on the type of act [the defendant] took that allegedly gave rise to the tort, not the wrongful character of the act.” Id. at 221 (citation omitted); see also Council on Am. Islamic Relations v. Ballenger, 444 F.3d 659, 664 (D.C. Cir. 2006) (“The appropriate question, then, is whether that telephone conversation—not the allegedly defamatory sentence—was the kind of conduct Ballenger was employed to perform.“).
The Attorney General‘s designee has certified that Mueller was acting within the scope of his employment at the time Corsi‘s tort claims arose. (See Mueller‘s Mot., Ex. A.) Corsi contests this certification, arguing that, since Mueller “actively circumvent[ed] grand jury secrecy provisions and tr[ied] to obtain false sworn testimony from Plaintiff Corsi,” his conduct is not the kind he was employed to perform.13 (Pl.‘s Opp‘n to Mueller‘s Mot. at 6.) But Mueller‘s or his staff‘s interactions with Corsi, who was a witness before the grand jury, certainly qualify as actions taken “on duty or on the job” of Special Counsel. See Jacobs, 724 F.3d at 221-22. Whether this conduct was wrongful is irrelevant to assessing the propriety of the certification. Id.
At the hearing, plaintiff‘s counsel asserted that he is entitled to discovery to determine whether Mueller was acting within the scope of his employment. (Tr. at 22:17-22:22, 30:12-30:16.) But the sole case he cited in support of this assertion only permits discovery if the plaintiff first meets his burden of “alleg[ing] sufficient facts that, taken as true, would establish that the defendant‘s actions exceeded the scope of his employment.” Wuterich, 562 F.3d at 381 (citations and internal quotation marks omitted). Corsi has not met this burden.
Counts Three and Four are dismissed insofar as they are brought against Mueller, and the United States is substituted as the sole defendant under the FTCA.
2. The Tort Claims Fail Against the Government Under the FTCA
Corsi‘s claims against the government fail because he did not comply with the FTCA‘s exhaustion requirement. Under that requirement,
[a]n action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment,
unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail.
In addition, these counts are subject to dismissal for lack of jurisdiction because the FTCA‘s limited waiver of sovereign immunity does not apply to the claims stated in Counts Three and Four. That waiver excepts “[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.”
Corsi does not contest the conclusion that Counts Three and Four fall within the above-quoted language from
For these reasons, Counts Three and Four of Corsi‘s amended complaint will be dismissed with prejudice.15
II. CORSI‘S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
Although the Court will dismiss the four counts in Corsi‘s amended complaint, he seeks leave to file a second amended complaint.
Corsi‘s proposed second amended complaint alleges a First Amendment retaliation claim against Mueller under Bivens. This is the only change from the first amended complaint. This new count is based entirely on facts set forth in the first amended complaint. (See Am. Compl. ¶¶ 20, 22-23, 55-56.) Specifically, the first amended complaint alleges that “Defendant Mueller and his prosecutorial staff have demanded that Plaintiff Corsi falsely testify under oath that he acted as a liaison between Roger Stone and Wikileaks leader Julian Assange concerning the public release of emails obtained from the DNC‘s servers.” (Id. ¶ 23.) Corsi claims that “Defendant Mueller has threatened to indict Plaintiff Corsi and effectively put him in federal prison for the rest of his life unless Plaintiff Corsi would provide [that testimony], even after being informed that the testimony desired would be false.” (Id. ¶ 22.) Corsi does not identify in his complaint the offense for which he was allegedly threatened to be indicted.
At the hearing, plaintiff‘s counsel acknowledged that, to the best of his knowledge,
As set forth in the proposed second amended complaint, Corsi claims that Mueller engaged in a retaliatory violation of his First Amendment rights. Corsi alleges that he “engaged in constitutionally protected speech and/or activity by testifying truthfully and giving an accurate account of the events related to Defendant Mueller‘s Russian collusion investigation to the best of his personal knowledge and belief.” (2d Am. Compl. ¶ 50, ECF No. 41-1.) He claims that “[a]s a direct and proximate result of [this], Plaintiff Corsi was threatened with indictment because he did not testify falsely and provide information that Defendant Mueller wanted.” (Id. ¶ 51.) He also alleges that “Defendant Mueller formed a retaliatory motive and threatened Plaintiff Corsi with indictment because he was exercising his First Amendment rights.” (Id. ¶ 52.)
For the reasons set forth below, the Court will deny the motion to amend on the grounds that the amendment would be futile.
A. Corsi Fails to State a Claim for First Amendment Retaliation
1. Corsi‘s Speech Was Not Adversely Affected
Few courts have recognized First Amendment retaliation claims under Bivens. In support of his contrary position, Corsi principally relies on a 2001 Fourth Circuit case—Trulock v. Freeh, 275 F.3d 391 (4th Cir. 2001). In Trulock, the plaintiff claimed that the defendants violated his First Amendment right to free speech by conducting a retaliatory warrantless search of his residence and computer after he wrote an article that was highly critical of the FBI. Id. at 397-99. The court set forth the elements of a claim for First Amendment retaliation: “[A] plaintiff must prove . . . (i) that his speech was protected; (ii) that the defendant‘s alleged retaliatory action adversely affected his constitutionally protected speech; and (iii) that a causal relationship existed between his speech and the defendant‘s retaliatory action.” Id. at 404 (citation omitted). The D.C. Circuit has recognized similar elements. See Doe v. District of Columbia, 796 F.3d 96, 106 (D.C. Cir. 2015).
Even assuming he engaged in protected speech by testifying before a grand jury pursuant to subpoena, Corsi
change in plaintiff‘s behavior “offer[ed] some evidence that” the alleged retaliatory action did not affect his constitutionally protected speech).
2. Corsi Does Not Claim Prosecutors Lacked Probable Cause to Indict Him
Corsi also fails to state a claim for retaliatory prosecution because he does not allege that the prosecutors lacked probable cause to indict him. “[A] plaintiff in a retaliatory-prosecution action must plead and show the absence of probable cause for pressing the underlying criminal charges.” Hartman v. Moore, 547 U.S. 250, 256-57 (2006). Neither Corsi‘s amended complaint nor his proposed second amended complaint alleges an absence of probable cause underlying the threatened false statement charge. When asked his position on this issue at the hearing, plaintiff‘s counsel responded that probable cause “has nothing to do with this case,” and the Court is “not here to litigate whether there was probable cause.” (Tr. at 19:22-20:1.) Because he does not provide facts to permit an inference of an absence of probable cause for the draft Information and Statement of the Offense, he fails to state a retaliatory prosecution claim.18
Courts follow a two-part test when asked to extend a Bivens remedy in a particular case. First, a court must determine whether the plaintiff seeks the remedy in a new context. A new Bivens context arises when a case differs “in a meaningful way from previous Bivens cases decided by” the Supreme Court. Abbasi, 137 S. Ct. at 1859. If no new context is presented, then the claim is cognizable. On the other hand, if a plaintiff asserts Bivens in a new context, the court must determine whether “special factors” exist that “counsel[] hesitation in the absence of affirmative action by Congress.” Id. at 1857 (citation and internal quotation marks omitted).
1. Corsi‘s First Amendment Retaliation Claim Is Novel
Corsi‘s First Amendment retaliation claim attempts to apply Bivens to a new context. First, and perhaps most importantly, the Supreme Court has never recognized a Bivens action for any First Amendment violation. Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012) (“We have never held that Bivens extends to First Amendment claims.“). And to the extent it has addressed retaliation claims, it has declined to extend the remedy. See Wilkie, 551 U.S. at 561-62 (denying a Bivens remedy for claims of retaliation for the exercise of property rights); Bush v. Lucas, 462 U.S. 367, 390 (1983) (declining to extend Bivens to a claim that the plaintiff, a federal employee, was demoted because he exercised his First Amendment rights). Even more to the point, the Supreme Court has suggested that a claim of “retaliatory investigation with a view to promote prosecution” is not a cognizable constitutional tort, let alone a cognizable claim under Bivens. Hartman, 547 U.S. at 262 n.9 (“No one here claims that simply conducting a retaliatory investigation with a view to promote a prosecution is a constitutional tort. . . . Whether the expense or other adverse consequences of a retaliatory investigation would ever justify recognizing such an investigation as a distinct constitutional violation is not before us.“).
When asked to name a case that recognized a Bivens action for a mere threat of prosecution in retaliation for an exercise of First Amendment rights, plaintiff‘s counsel stated that he “suspect[s] there are cases out there,” but that this may be “a case of first impression.” (Tr. at 32:16-32:17.) Alternatively, he urged that Corsi‘s claim does not present a new Bivens context “if you put together Bivens” with other cases in which the remedy was extended. (Id. at 32:4-32:15.) The cases he cites, however, are distinguishable. The plaintiffs in those cases had been the subject of an actual prosecution or enforcement action, rather than the subject of an unrealized threat. See Hartman, 547 U.S. at 253-57 (assuming, without deciding, the existence of a First Amendment retaliatory prosecution claim where the plaintiff was prosecuted and eventually acquitted); Fields v. Wharrie, 740 F.3d 1107, 1109 (7th Cir. 2014) (allowing a
2. Special Factors Counsel Against Recognizing a Bivens Action
Corsi‘s First Amendment claim implicates special factors that demonstrate that Congress, not the courts, should decide whether a damages remedy for retaliatory threat of prosecution should be recognized. First, recognition of Corsi‘s novel claim would violate the separation of powers doctrine by “burdening and interfering with the executive branch‘s investigative and prosecutorial functions.” Farah v. Weyker, 926 F.3d 492, 500 (8th Cir. 2019) (citing Abbasi, 137 S. Ct. at 1861); see also Clinton v. Jones, 520 U.S. 681, 701 (1997) (“[T]he separation-of-powers doctrine requires that a branch not impair another in the performance of its constitutional duties.” (citation and internal quotation marks omitted)). The recognition of a Bivens remedy for retaliatory threats of prosecution could cause the judiciary to have to supervise situations where a prosecutor indicates that an individual may be indicted if he or she does not provide desired testimony.
Relatedly, allowing such a claim would interfere with the well-recognized principle that prosecutorial discretion is not subject to judicial review. Wayte v. United States, 470 U.S. 598, 607-08 (1985) (“The decision to prosecute is particularly ill-suited to judicial review.“); In re Sealed Case No. 97-3025, 131 F.3d at 214 (“The exercise of prosecutorial discretion . . . has long been held presumptively unreviewable.“). The judiciary‘s deference to prosecutors stems from concerns that judicial oversight would “delay[] the [underlying] criminal proceeding, threaten[] to chill law enforcement by subjecting the prosecutor‘s motives and decisionmaking to outside inquiry, . . . undermine prosecutorial effectiveness by revealing the Government‘s enforcement policy,” “cause an official to second-guess difficult but necessary decisions,” “impair intelligence gathering[,] and cause sources to close up like a clam.” Wayte, 470 U.S. at 607; Abbasi, 137 S. Ct. at 1861; Wilson, 535 F.3d at 710 (quoting Tenet v. Doe, 544 U.S. 1, 11 (2005)) (internal quotation marks omitted).
Allowance of Corsi‘s claim could also overwhelm prosecutors with Bivens actions, thereby affecting their ability to perform their duties. Prosecutors would risk subjecting themselves to personal liability each time they indicate to a potential defendant that they may indict him or her, since such an indication could be construed as a “threat.” And would-be defendants might be encouraged to bring Bivens actions based on a putative threat, since doing so could prove advantageous in plea negotiations. “[T]he burden and demand of litigation” that would result from an extension of Bivens in this instance “might well prevent [prosecutors] . . . from devoting the time and effort required for the proper discharge of their duties.” Abbasi, 137 S. Ct. at 1860.
Moreover, application of Bivens to threats of prosecution would create line-drawing problems that the courts are ill-equipped to handle. Specifically, plaintiffs could challenge legitimate plea offers on the basis that a prosecutor “demanded too much and went too far.” Wilkie, 551 U.S. at 557. But “[a] ‘too much’ kind of liability standard . . . can never be as reliable a guide to conduct and to any subsequent liability as a ‘what for’ standard, and that reason counts against recognizing freestanding liability in a case like this.” Id. This is especially true where the challenged conduct—in this instance, plea bargaining—is considered a “legitimate tactic[] designed to improve the Government‘s negotiating power.” Id.
Finally, recognition of Corsi‘s claim could threaten the practice of plea bargaining, which is an “important component[] of this country‘s criminal justice system.” Bordenkircher v. Hayes, 434 U.S. 357, 361 (1978) (holding that the Fourteenth Amendment‘s Due Process Clause is not violated when a “prosecutor carries out a threat made during plea negotiations to reindict the accused on more serious charges if he does not plead guilty to the offense with which he was originally charged“). Indeed, in 2012, “[n]inety-seven percent of federal convictions . . . [we]re the result of guilty pleas,” and the Supreme Court has hesitated to create rules “that would drive the practice of plea bargaining . . . into the shadows.” Missouri v. Frye, 566 U.S. 134, 143 (2012); Bordenkircher, 434 U.S. at 365. An extension of Bivens here could do just that by encouraging prosecutors to avoid plea bargaining so as to minimize the risk of being sued in their personal capacities.
Because these special factors counsel against extending Bivens to this new context, the Court concludes that Corsi cannot bring a First Amendment retaliation claim under Bivens.
In the alternative, Corsi‘s claim would be barred by qualified immunity. “Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” al-Kidd, 563 U.S. at 735. “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001). “‘[E]xisting precedent must have placed the statutory or constitutional question beyond debate.‘” Daugherty v. Sheer, 891 F.3d 386, 390 (D.C. Cir. 2018) (quoting Reichle, 566 U.S. at 664). The allegedly violated right must be defined “narrowly” so that it “fit[s] the factual pattern confronting the officers.” Dukore v. District of Columbia, 799 F.3d 1137, 1145 (D.C. Cir. 2015). The party asserting the existence of the right at issue—in this case, Corsi—“has the burden to show that the particular right in question . . . was clearly established for qualified immunity purposes.” Daugherty, 891 F.3d at 390 (citation and internal quotation marks omitted).
But, as noted before, “simply conducting a retaliatory investigation with a view to promote a prosecution” has not been recognized as a constitutional tort. Hartman, 547 U.S. at 262 n.9; see supra at Section II.B.1. Indeed, the Supreme Court has expressed skepticism that such a tort should be cognizable. See Hartman, 547 U.S. at 262 n.9. Given Hartman‘s acknowledgement that such a right has not been recognized and the lack of any authority among lower courts extending such a right to preindictment plea negotiations, there is no basis to argue that such a right was clearly established.21 See Pitt v. District of Columbia, 491 F.3d 494, 511-12 (D.C. Cir. 2007).
Corsi‘s proposed amendment to his complaint would be futile, and, therefore, the Court will deny him leave to amend.
CONCLUSION
For the reasons stated above, the Court will grant defendants’ motion to dismiss and deny plaintiff‘s motion for leave to amend his complaint. A separate Order accompanies this Memorandum Opinion.
ELLEN S. HUVELLE
United States District Judge
Date: October 31, 2019
Notes
The remedy against the United States provided by sections 1346(b) and 2672 of this title . . . is exclusive of any other civil action or proceeding for money damages . . . . Any other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee or the employee‘s estate is precluded without regard to when the act or omission occurred.
Plaintiff‘s counsel also cited Navob-Safavi v. Broadcasting Board of Governors, in which this Court recognized a Bivens claim where the plaintiff, a federal contractor, alleged that she was terminated for exercising her First Amendment rights. 650 F. Supp. 2d 40, 76 (D.D.C. 2009). Because that case involved a retaliatory employment action, rather than a retaliatory threat of prosecution, it does not follow that Navob supports Corsi‘s argument that Bivens applies to pre-indictment plea negotiations.