Intermittent clicking on the phone line. Frequent detention and searches at airports. An alleged officer in the Ford Crown Victoria parked outside. Scott Tooley is convinced the government has unlawfully intercepted phone calls, put him on a terrorist watch list, and followed him covertly. He wants answers.
However fanciful such claims may seem to some, Tooley won a victory in the U.S. Court of Appeals for the D.C. Circuit today when a split panel reversed a trial court order dismissing his complaint against government officials, including the attorney general and the Homeland Security secretary. Tooley alleges government leaders have infringed certain constitutional rights.
The appeals court had appointed Latham & Watkins to assist Tooley on appeal. Latham associate Cassandra Bernstein argued as an amicus in support of Tooley. Bernstein, who practices in the firm's D.C. office in the environment, land, and resources department, says she’s gratified by the appeals court ruling. The decision, she says, supports the liberal pleadings standard.
Judge Stephen Williams, who wrote the majority opinion, was joined by Judge David Tatel. Chief Judge David Sentelle wrote a separate opinion in dissent. The judges agreed on at least one thing: a shared concern over the ultimate plausibility of Tooley’s allegations. Still, Williams and Tatel kicked the case back to the U.S. District Court for the District of Columbia even though the judges collectively agreed the claims appear thin. “Under our system’s undemanding pleading rules, the district court was required to accept Tooley’s factual allegations as true,” Williams wrote.
Tooley writes in court records that his saga began in 2002 with a misunderstood remark he made to a Southwest Airlines representative who had asked Tooley whether he had any comments, questions, or suggestions. Tooley, according to court records, said something about without proper security the public was less safe because a person could bring a bomb on a plane. The representative put Tooley on hold for 20 minutes. Tooley ultimately hung up. Tooley claims that because of the remark he was targeted for surveillance beginning in the fall 2003, when he noticed clicking sounds on his phone. He claims the phones of family members are also being monitored.
Sentelle in dissent did not let Tooley’s allegations fly, calling the claims "fanciful beliefs" in declaring that Tooley does not have standing. Sentelle, among other things, does not buy Tooley’s argument that he is on a so-called “watch list” based on the number of searches at airports.
“Stripped of his conclusory adjectives and adverbs, his allegations say that he has been searched or detained at airports,” Sentelle wrote. “It is unlikely that anyone who flies with any frequency has not. If his allegations concerning airport searches were sufficient, I venture to say that many members of this court could file a similarly sufficient complaint.”
And that weird clicking on the phone? Sentelle reasons: “I note in passing that there is no reason to believe that wiretaps even cause problematic connections or intermittent clicking sounds." If wiretaps produced bad connections, Sentelle writes, phone taps “would hardly have proved to be the useful tool" they have been in criminal investigations, among other arenas.