Scott Tooley narrowly won an appellate court victory earlier this year in his suit against top government officials, accusing them of invading his privacy through purported wiretaps, clandestine surveillance and “terrorist watch lists.” Now he may lose again.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled 2-to-1 in February that as “thin” as Tooley’s claims appear, he has standing to sue. (The trial judge had tossed Tooley’s suit.) Justice Department lawyers challenged the split decision, saying that it conflicts with other circuits’ views.
The D.C. Circuit on Wednesday granted a rehearing, a win for the government. The case will be argued again in October.
“Although the panel majority suggests that the government could deal with this problem by invoking the state secrets privilege, that privilege cannot be lightly invoked,” a Justice appellate lawyer, Teal Luthy Miller, wrote in the government’s petition for rehearing.
Miller, who argued the case in the D.C. Circuit, said in the brief: “Allowing this and other fanciful suits to go forward can subject the government to burdensome and ultimately pointless discovery in a sensitive area of national security, with perhaps an ultimate need to assert the state secrets privilege, even when the complaint offers no plausible basis for believing that the government had any connection with purported surveillance of the plaintiff.” To read the DOJ petition, click here.
Tooley’s suit, filed in the U.S. District Court for the District of Columbia, alleges that he has experienced intermittent clicking on his phone line as well as frequent detention and searches at airports. He is suing the attorney general and the Homeland Security secretary, among others, on the ground that the government has violated his privacy.
In the appeals court, Senior Judge Stephen Williams and Judge David Tatel voted to remand Tooley’s case to the trial court for further proceedings. “Under our system’s undemanding pleading rules, the district court was required to accept Tooley’s factual allegations as true,” Williams wrote. Click here for the opinion.
Chief Judge David Sentelle wrote in dissent that Tooley doesn’t have a case with his “fanciful beliefs.” Just because Tooley has been detained at airports doesn’t mean his name is on any watch list, the judge wrote.
“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.”
Sentelle also dismissed Tooley’s conclusion that his phones are tapped. There’s no reason to believe that wiretaps cause bad connections, the judge said, because if that were true, phone taps would not be a useful tool for law enforcement.
Sentelle, Tatel and Williams all share one concern: the ultimate plausibility of Tooley’s claims.
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