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Analysis: New obstacles to wartime challenges


It has never been easy to sue government officials for actions they take in wartime, and such challenges, when allowed, fail more often than not.  One of the main problems has been that most of the information that is crucial to the case is in the goverment’s hands, and it is seldom eager to provide it — citing national security or the need to protect “state secrets.’

The obstacles, though, may be even higher now, as lawyers for a Kentucky man, Scott Tooley, are discovering in the wake of one of the Supreme Court’s too-little-noticed, recent rulings. His case could be put to an end before it can unfold any further in court.

Tooley and court-appointed lawyers taking his side were moving ahead with his lawsuit after the D.C. Circuit Court gave permission in February. He had sued three top government officials over what he claims are years of harassment and illegal surveillance resulting from  a piece of advice that he gave an airlne ticket agent soon after the 9/11 attacks.  Now, his case faces potential dismissal following the Supreme Court ruling on May 18, in Ashcroft v. Iqbal (07-1015).

Last Wednesday, in one of the first signs of the wide significance of the Iqbal decision, a D.C. Circuit panel agreed to reconsider its February decision allowing Tooley v. Napolitano, et al., to proceed at least through some pre-trial stages in U.S. District Court.

The government’s rehearing petition, with the Circuit’s February decision attached, is here; the Tooley opposition is here.  Before the Circuit panel granted rehearing, it sought further briefs on the effect of the Iqbal decision. The government’s supplemental brief is here, the Tooley brief is here.

When the panel holds a new hearing, now set for Oct. 8, the case will take shape as a test of whether the courthouse door is going to be nearly closed to lawsuits claiming constitutional violations by high government officials when the claims touch on national security — out of court before any significant gathering of facts.

Unable to get data from inside the government to bolster claims of illegal actions, those who sue in the future may not have enough substance to their claims to get past an opening dismissal demand by the government.

That would be a direct consequence of the Iqbal decision, and of a 2007 Supreme Court ruling, Bell Atlantic v. Twombly (05-1126), that is almost certainly completely unknown outside of the legal community.

Tooley traces his woes to a comment he had made in March 2002, during a telephone conversation to buy tickets from a Southwest Airlines agent.  After the transaction was completed, the agent asked Tooley, his complaint says, whether he had any comments or suggestions. Tooley said that, in the wake of the 9/11 attacks, Southwest should scrren everything that went on board a plane, and suggested that, if proper security were not adopted, travelers would be less safe because someone could ”put a bomb on the plane.”

The agent reportedly reacted with alarm, saying “you said the ‘b’ word.” Tooley says he tried to explain his remark, but the agent put him on hold; after 20 minutes, with no further response, he hung up.  More than a year later, according to his complaint, his toubles began.

He and members of his family detected unsual sounds on their telephones, fearing wiretapping. He later contended that the family had been targeted by President Bush’s controversial warrantless eavesdropping program.  He also contended that an official-looking car was parked outside his home in Louisville, Ky., for two weeks prior to and after a visit to the city by Presiden Bush.  He claimed that radio frequency monitoring devices had been placed on his car.  And, every time he has traveled by air,  he has been subjected to an intrusive and sometimes degrading search. He also said he suspected these searches were the result of him being placed on the government’s terrorism “watch lists.”

After failing to get supporting information through a series of Freedom of Information Act requests, Tooley sued the U.S. Attorney General, the Secretary of Homeland Security, and the head of the Transportation Security Administration (among others no longer in the case).  He claimed violations of his constitutional rights to privacy and to free speech.

In response to his allegations, Justice Department officials have called them “fantastic” or “fanciful,” and have likened them to claims by deranged individuals who advanced “bizarre conspiracy theories,” such as secret government placement of monitoring devices or a camera inside one’s brain.

U.S. District Judge Colleen Kollar-Kotelly ruled in December 2006 that it was “altogether possible” that he was the target of unlawful wiretapping by state and local officials, not federal officers, and thus he could not raise that claim against the top U.S. officials. The judge also found she had no authority to rule on his claim of being put on terrorist lists.

The Circuit Court panel, however, found by a 2-1 vote that, while his claims were “thin” and that he may not be able ultimately to show that they were “plausible,” they nevertheless had sufficient substance that the case could at least progress to an evidence-discovery phase — although the Courtcautioned that, because the case involved national security, that phase should be kept closely controlled by the trial judge.

The debate within the panel focused on both the differing weight the majority and dissent assigned to Tooley’s claims, and on the meaning of the Supreme Court’s 2007 decision in Twombly.  In that decision involving an antitrust claim, the Justices by a 7-2 vote put strong emphasis on the need for a lawsuit to demonstrate plausibility at the outset.  “Plausible grounds” must be included in the complaint, the Supreme Court held, sufficient “to raise a reasonable expectation that discovery will reveal evidence” of illegal action.

Lower courts have had difficulty interpreting what Twombly required, and have disagreed even on whether it laid out a new standard of what must be in an original legal complaint for it to survive at all.

Responding to the Circuit Court ruling in Tooley, the Justice Department sought rehearing, either by the panel or en banc.  It focused heavily on the Twombly decision, and on a more recent sequel (Pacific Bell v. Linkline Communications, 07-512, decided Feb. 25).  The government again argued that Scott Tooley’s claims lacked any substance.  It also said that allowing the case to go forward would pose some threat to national security.  And it noted that the Supreme Court was at the time considering the Iqbal case, in the context of challenges to high officials in the post-9/11 context.

Tooley’s side argued that Twombly broke no new legal ground, and that Tooley’s case was merely a routine, fact-specific case.  That brief also argued that the Iqbal case should have no effect on this case.

The Iqbal decision then emerged, with the Court blocking a lawsuit against former Attorney General John Ashcroft and current FBI Director Robert Mueller. The lawsuit claimed that they had authorized and supervised mistreatment of scores of men of Arab Muslim lineage rounded up after the 9/11 terrorist attacks.

The Justice Department promptly notified the Circuit Court of the Iqbal decision; the panel was still pondering the rehearing plea in Tooley.  The Circuit panel then called for new briefs on Iqbal.

The Justice Department argued that the Justices’ new ruling meant that the Circuit Court was wrong in keeping the Tooley case alive.  In Iqbal, it noted, the Justices had said that “naked assertions” of illegal acts, without “further factual development,” would not be sufficient to avoid dismissal.  The effect of Iqbal, it added, was to undermine D.C. Circuit precedent upon which the panel had relied in Tooley.

The government also repeated its claim that Tooley’s lawsuit was built on “fanciful, paranoid, or irrational” beliefs (citing as support the words of the Circuit panel’s dissenting judge).

The lawyers filin gon behalf of Scott Tooley — Richard P. Bress and “Gabriel K. Bell of Latham & Watkins in Washington — argued that Iqbal did not change the law, and did not aler the Twombly rule on plausibility requirements.  Unlike the Iqbal complaint, which rested on legal conclusions, Tooley’s lawsuit rested on factual allegations, the brief said.

“Tooley’s complaint,” that brief contended, “goes well beyond merely reciting the elements of the constitutional violations at issue… He alleges harm from specific events, arguably linked to government conduct.”

After pondering the issue for nearly a month, the Circuit Court panel on Wednesday ordered rehearing, laid out a new briefing schedule, and set oral argument for Oct. 8 at 9:30 a.m.   The panel is composed of Chief Judge David B. Sentelle, Circuit Judge David S. Tatel and Senior Circuit Judge Stephen F. Williams.  (Sentelle was the dissenter in the February ruling, written by Williams.)