Attkisson v. Bridges

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

SHARYL THOMPSON *

ATTKISSON,

*

Plaintiffs,

* Civil Action No. RDB-20-0068

v.

*

SHAUN WESLEY BRIDGES, ,

*

Defendants.

*

* * * * * * * * * * * * *

MEMORANDUM OPINION

On January 10, 2020, Plaintiffs Sharyl Thompson Attkisson, James Howard

Attkisson, and Sarah Judith Starr Attkisson (collectively “Plaintiffs” or the “Attkissons”)

filed this suit against Defendants Rod Rosenstein1, Shawn Henry, Shaun Wesley Bridges,

Robert Clarke, Ryan White, and Unknown Named Agents 1-50 of the Department of

Justice, in their individual capacities. (See ECF No. 1.) By Memorandum Opinion and

Order dated March 16, 2021, this Court GRANTED Defendants Rosenstein and Henry’s

Motion to Dismiss. (ECF No. 31.) The now operative Second Amended Complaint asserts

two claims against Defendants Bridges, White, and Unknown Federal Agents.2 (See ECF

No. 35.) Count 1 seeks compensatory and punitive damages under Bivens v. Six Unknown

Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), for alleged violations of the

1 Defendant Rod Rosenstein is the former United States Attorney for the District of Maryland. (ECF

No. 15 ¶ 12.)

2 Plaintiffs did not name Robert Clarke as a Defendant in the Second Amended Complaint.

Fourth Amendment to the United States Constitution. (Id.) Count 2 alleges violations of

the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. §§ 2511 and 2520. (Id.)

Presently pending is Defendant Bridges’ Moton to Dismiss for Failure to State a

Claim. (ECF No. 58.) Plaintiffs have opposed the Motion. (ECF No. 64.) The parties’

submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md.

2021). For the reasons that follow, Defendant Bridges’ Motion to Dismiss for Failure to

State a Claim (ECF No. 58), construed as a Motion for Judgment on the Pleadings pursuant

to Federal Rule of Civil Procedure 12(c), is GRANTED IN PART AND DENIED IN

PART. Specifically, the Motion is GRANTED as to Count 1 and DENIED as to Count 2.

BACKGROUND

In ruling on a motion to dismiss, this Court “accept[s] as true all well-pleaded facts in

a complaint and construe[s] them in the light most favorable to the plaintiff.” Wikimedia

Found. v. Nat’l Sec. Agency, 857 F.3d 193, 208 (4th Cir. 2017) (citing SD3, LLC v. Black &

Decker (U.S.) Inc., 801 F.3d 412, 422 (4th Cir. 2015)). This Court summarized many of

Plaintiffs’ factual allegations in its Memorandum Opinion of March 16, 2021. (ECF No. 31.)

In short, Plaintiff Sharyl Attkisson worked as an investigative reporter for CBS News. (ECF

No. 35 ¶ 10.) Plaintiff James Attkisson is Sharyl’s husband, and Plaintiff Sarah Attkisson is

James and Sharyl’s daughter. (Id. ¶¶ 2, 3, 31.) Defendant Shaun Wesley Bridges (“Bridges”)

was a resident and citizen of Virginia who served as a Special Agent with the U.S. Secret

Service for six years operating out of the Baltimore, Maryland field office.3 (Id. ¶¶ 4.)

3 At the time Plaintiffs filed their Second Amended Complaint, Bridges was incarcerated in Nashville,

Tennessee. (ECF No. 35 ¶ 4.) See also United States v. Bridges, Case No. 3:15-cr-319-RS (N.D. Cal. Dec. 7.

2015); United States v. Bridges, Case No. 3:17-cr-448-RS (N.D. Cal. Nov. 9, 2017) (imposing sentences of 71

months and 24 months consecutive for money laundering and obstruction of justice).

Between 2012 and 2014, he was allegedly assigned to the Baltimore Silk Road Task Force, a

multi-agency group investigating illegal activity on the Silk Road, a covert online marketplace

for illicit goods, including drugs. (Id. ¶ 65.) Defendant Ryan White (“White”) is also a

convicted felon4 and a resident and citizen of Maryland who allegedly worked as an

undercover informant to the FBI, U.S. Secret Service, Drug Enforcement Administration,

and the Bureau of Alcohol Tobacco and Firearms. (Id. ¶¶ 64.)

According to the Attkissons, Sharyl was responsible for investigating, writing, and

publishing news stories on a federal drug-trafficking investigation that came to be known as

“Fast and Furious,” as well as the attack of the American diplomatic mission in Benghazi,

Libya. (Id. ¶ 11.) The Attkissons allege that following the airing of Sharyl’s “Fast and

Furious” report on CBS, government officials began actively seeking to identify government

insiders who were “leaking” information to Sharyl and CBS by conducting home computer

and telephone surveillance of the Attkisson family. (Id. ¶¶ 28-29.) Specifically, the Attkissons

claim that Defendant White has come forward and revealed that he personally participated in

illegal surveillance activity directed at them. (Id. ¶ 63.) The Attkissons also claim that

Defendant White revealed that his work out of Baltimore included work with Bridges and

others to use government resources to surveil the Attkissons. (Id. ¶ 66.) The Attkissons

allege that Defendant Bridges used software programs to conduct the surveillance of the

Attkissons’ devices. (Id. ¶ 68.) The Attkissons also allege that Defendant White reported that

4 See Judgment, United States v. Ryan Dark White, Crim No. 16-172-JKB (D. Md. July 28, 2016)

(imposing a sentence of 27 months in prison on one count of health care fraud in violation of 18 U.S.C. §

1347); see also ECF No. 58-4.

he was personally present with Defendant Bridges when they were accessing the Attkissons’

computers. (Id. ¶ 70.)

The Attkissons litigated claims related to these same allegations in the United States

District Court for the Eastern District of Virginia and on appeal to the United States Court

of Appeals for the Fourth Circuit. See Attkisson v. Holder, No. 1:17-cv-00364 (E.D. Va. May

15, 2018); Attkisson v. Holder, 925 F.3d 606 (4th Cir. 2019) (affirming dismissal of all of the

Attkissons’ claims against former United States Attorney General Eric Holder and former

United States Postmaster General Patrick Donahoe).5

On January 10, 2020, the Attkissons filed suit in this Court alleging violations of the

Fourth Amendment to the United States Constitution pursuant to Bivens v. Six Unknown

Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (Count 1) and violations of

the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. § 2511 (Count 2). On

September 27, 2021, Bridges filed a pro se Answer to the Second Amended Complaint. (ECF

No. 48.) On October 29, 2021, counsel retained by the Department of Justice to represent

Bridges entered an appearance on his behalf. (ECF No. 51.) On November 12, 2021,

Bridges, through counsel, filed the presently pending Motion to Dismiss. (ECF No. 58.)

STANDARD OF REVIEW

Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain

a “short and plain statement of the claim showing that the pleader is entitled to relief.” Rule

12(b)(6) of the Federal Rules of Civil Procedure authorizes the dismissal of a complaint if it

fails to state a claim upon which relief can be granted. The purpose of Rule 12(b)(6) is “to

5 Defendants Bridges and White were not named in that lawsuit.

test the sufficiency of a complaint and not to resolve contests surrounding the facts, the

merits of a claim, or the applicability of defenses.” Presley v. City of Charlottesville, 464 F.3d 480,

483 (4th Cir. 2006).

The Supreme Court’s opinions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.

Ct. 1955, 167 L. Ed. 2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L.

Ed. 2d 868 (2009), “require that complaints in civil actions be alleged with greater specificity

than previously was required.” Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citation

omitted). The Supreme Court's decision in Twombly articulated “[t]wo working principles”

that courts must employ when ruling on Rule 12(b)(6) motions to dismiss. Iqbal, 556 U.S. at

678. First, while a court must accept as true all the factual allegations contained in the

complaint, legal conclusions drawn from those facts are not afforded such deference. Id.

(stating that “[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice” to plead a claim).

Second, a complaint must be dismissed if it does not allege “a plausible claim for

relief.” Id. at 679. Under the plausibility standard, a complaint must contain “more than

labels and conclusions” or a “formulaic recitation of the elements of a cause of action.”

Twombly, 550 U.S. at 555. Although the plausibility requirement does not impose a

“probability requirement,” id. at 556, “[a] claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663; see also Robertson v. Sea

Pines Real Estate Cos., 679 F.3d 278, 291 (4th Cir. 2012) (“A complaint need not make a case

against a defendant or forecast evidence sufficient to prove an element of the claim. It need only

allege facts sufficient to state elements of the claim.” (emphasis in original) (internal quotation

marks and citation omitted)). In short, a court must “draw on its judicial experience and

common sense” to determine whether the pleader has stated a plausible claim for relief.

Iqbal, 556 U.S. at 664.

ANALYSIS

I. Plaintiffs’ Procedural Argument

Plaintiffs contend that Defendant Bridges has waived his opportunity to file a motion

to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Specifically, Plaintiffs

argue that Defendant Bridges is barred from submitting his Motion to Dismiss at this stage

because he has already filed a pro se Answer to Plaintiffs’ Second Amended Complaint. (ECF

No. 64 at 6-8; Answer, ECF No. 48.) Rule 12(b) requires that a motion asserting the defense

of failure to state a claim or lack of subject matter jurisdiction “be made before pleading if a

responsive pleading is allowed.” Fed. R. Civ. P. 12(b). Exceptions to this rule, however, fall

under Rule 12(h)(2). In particular, Rule 12(h)(2)(B) allows a defendant to bring a motion to

dismiss for failure to state a claim or for lack of subject matter jurisdiction “by a motion

under Rule 12(c).” Rule 12(c) states that a motion for the judgment on the pleadings may be

brought after the pleadings are closed, but early enough so as to not delay trial. See Fed. R.

Civ. P. 12(c); see also Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999) (stating

that a defendant’s untimely motion to dismiss pursuant to Rule 12(b)(6) may be viewed as a

Rule 12(c) motion). A court ruling on a Rule 12(c) motion applies the same standard as when

deciding a Rule 12(b)(6) motion. Mayfield v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 674 F.3d

369, 375 (4th Cir. 2012); Burbach Broad. Co. of Del., 278 F.3d at 405-06.

This Court concludes that it may construe Defendant Bridges’ Motion to Dismiss as

a motion made pursuant to Rule 12(c). See Edwards, 178 F.3d at 243. Plaintiffs do not proffer

that Defendant Bridges’ Motion has been made so late as to delay the start of a trial. See, e.g.,

Reynolds Assoc. v. Kemp, 974 F.2d 1331 (4th Cir. 1992) (unpublished table opinion) (finding

that a district court’s consideration of a Rule 12(c) motion two weeks before trial was within

“the sound discretion of the judge”). Indeed, this Court granted Plaintiffs and Defendant

Bridges’ consent motion to stay all deadlines in this case pending resolution of Defendant

Bridges’ Motion to Dismiss. (ECF No. 62.) Furthermore, this Court has the discretion to

permit Defendant Bridges’ Rule 12(c) motion even though Defendant White has not yet

answered the Second Amended Complaint.6 See Language v. MCM 8201 Corp., LLC, No.

PWG 20-cv-1755, 2021 U.S. Dist. LEXIS 34541, at *16 n.5 (D. Md. Feb. 23, 2021)

(collecting cases). Accordingly, this Court rejects Plaintiffs’ waiver argument and construes

Defendant Bridges’ Motion to Dismiss as a Motion for Judgment on the Pleadings under

Rule 12(c).

II. Claim (Count 1)

In Count 1 of the Second Amended Complaint, Plaintiffs allege that Defendant

Bridges violated their Fourth Amendment rights by unlawfully surveilling them through their

electronic devices. (ECF No. 35 ¶¶ 91-97.) They seek damages for that alleged injury

pursuant to the United States Supreme Court’s decision in Bivens v. Six Unknown Named

Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). (Id.) In Bivens, the Supreme Court

6 By Memorandum Order dated December 21, 2021, this Court directed the Office of the Clerk of

this Court to enter Defendant White’s default. (ECF No. 66.) On December 22, 2021, the Clerk of this Court

entered Defendant White’s default. (ECF No. 67.)

recognized an implied cause of action for damages against federal officers alleged to have

violated a citizen’s rights under the Constitution. 403 U.S. at 396-97. The Supreme Court’s

opinion specifically authorized the recovery of damages in a situation involving an unlawful

search and arrest in the plaintiff’s home. Id. at 389. Under Bivens, a plaintiff alleging

violations of his constitutional rights may seek compensatory damages from federal officials

in their individual capacities. Id.

As discussed above, this case is not Plaintiffs’ first attempt to secure legal redress for

the alleged unlawful surveillance of their electronic devices. In 2014, the Plaintiffs brought

suit against several named and unnamed government officials, including former Attorney

General Eric Holder and former Postmaster General Patrick Donahoe. See Attkisson v.

Holder, 925 F.3d 606 (4th Cir. 2019). In the Consolidated Complaint in that suit, the

Attkissons alleged that Holder, Donahoe, and the other unnamed agents violated their

Fourth Amendment rights by unlawfully surveilling them through their electronic devices.

Id. at 620. They sought damages for that alleged injury pursuant to Bivens, 403 U.S. at 395.

Holder and Donahoe moved to dismiss that claim, arguing, in part, that Bivens should not be

extended to the new context presented in Plaintiffs’ case. See Attkisson, 2017 WL 5013230, at

*5. Judge Brinkema of the United States District Court for the Eastern District of Virginia

ultimately dismissed the Bivens claim against both Holder and Donahoe on those grounds.

Id. at *8. The United States Court of Appeals for the Fourth Circuit affirmed the dismissal of

Plaintiffs’ Bivens claim. Attkisson v. Holder, 925 F.3d 606, 622 (4th Cir. 2019).

Defendant Bridges argues that Plaintiffs’ Bivens claim is barred by the doctrine of

collateral estoppel. Plaintiffs argue that the claim is not barred because a claim against

Defendant Bridges presents a different factual context from the claims against Holder and

Donahoe. “‘Under collateral estoppel, once an issue is actually and necessarily determined by

a court of competent jurisdiction, that determination is conclusive in subsequent suits based

on a different cause of action involving a party to the prior litigation.’” Collins v. Pond Creek

Mining Co., 468 F.3d 213, 217 (4th Cir. 2006) (quoting Montana v. United States, 440 U.S. 147,

153 (1979)). A party seeking to invoke collateral estoppel must establish five elements: “(1)

that ‘the issue sought to be precluded is identical to one previously litigated’ (element one);

(2) that the issue was actually determined in the prior proceeding (element two); (3) that the

issue’s determination was ‘a critical and necessary part of the decision in the prior

proceeding’ (element three); (4) that the prior judgment is final and valid (element four); and

(5) that the party against whom collateral estoppel is asserted ‘had a full and fair opportunity

to litigate the issue in the previous forum’ (element five).” Id. (quoting Sedlack v. Braswell Servs.

Group Inc., 134 F.3d 219, 224 (4th Cir. 1998)).

All of these factors are met in this case. First, the issues are identical. The gravamen

of the Plaintiffs’ claim under Count 1 is that Plaintiffs have a right to recover damages

against Defendant Bridges in his individual capacity under Bivens based on unlawful

electronic surveillance. (ECF No. 35 ¶¶ 91-97.) However, the Fourth Circuit in Attkisson

determined that where Plaintiffs claim violation a of their Fourth Amendment rights on the

basis of unlawful electronic surveillance, such circumstances present a new Bivens context.

925 F.3d at 621-22. The Fourth Circuit refused to create the remedy Plaintiffs requested. Id.

Plaintiffs argue that the Fourth Circuit’s analysis rested on the fact that Holder and Donahoe

were high-ranking officials who “held much higher ranks than the line-level FBI agents sued

in Bivens.” 925 F.3d at 621. While it is true that Bridges is alleged to have served as a line

Special Agent with the United States Secret Service and not as a high-ranking supervisor

(ECF No. 35 ¶ 4), the Fourth Circuit’s analysis of Plaintiffs’ Bivens claim did not end there.

The Fourth Circuit concluded that “a claim based on unlawful electronic surveillance

presents wildly different facts and a vastly different statutory framework from a warrantless

search and arrest.” 925 F.3d at 621.

Even if Plaintiffs Bivens claim against Defendant Bridges were not barred by the

doctrine of collateral estoppel, Plaintiffs still do not state a claim against him under the Bivens

doctrine. As the Fourth Circuit recently explained in Earle v. Shreves, “[i]n the years since

Bivens was decided . . . the Supreme Court’s approach to implied damage remedies has

changed dramatically, to the point that ‘expanding the Bivens remedy is now a disfavored

judicial activity.’” 990 F.3d 774, 778 (4th Cir. 2021) (citing Ziglar v. Abbasi, 137 S. Ct. 1843,

1857 (2017)). The Supreme Court’s decision in Abbasi narrowed the circumstances in which

a plaintiff may successfully state a claim under the principles established in Bivens. 137 S. Ct.

at 1857-58. Under Abbasi, to determine whether a Bivens remedy exists, a court must ask (1)

whether the claim “presents a new Bivens context,” and (2) if it does, whether any “special

factors counsel[ ] hesitation” in recognizing a new remedy “in the absence of affirmative

action by Congress.” Id. at 1857-59. In Attkisson, Fourth Circuit held that Plaintiffs’ claim

“assuredly” presented a “new Bivens context.” 925 F.3d at 621 The Court then turned to an

analysis of the “special factors” identified in Abbasi and found that several of those factors

“counsel[ed] hesitation.” Id. The Court noted that Congress has legislated extensively in the

area of electronic surveillance without authorizing damages for a Fourth Amendment

violation in such circumstances, and that there were “‘sound reasons to think Congress

might doubt the efficacy or necessity of a damages remedy as part of the system for

enforcing the law and correcting a wrong.’” Id. at 621-22 (citing Abbasi, 135 S. Ct. at 1858).

This Court is bound to follow Fourth Circuit precedent. Accordingly, Defendant Bridges’

Motion to Dismiss is GRANTED as to Count 1, and Count 1 is DISMISSED WITH

PREJUDICE as to Defendant Bridges.

III. Electronic Communications Privacy Act Claim (Count 2)

In Count 2, Plaintiffs claim that Defendant Bridges’ alleged surveillance was in

violation of the Electronic Communications Privacy Act (“ECPA”), 18. U.S.C. §§ 2511 and

2520. (ECF No. 35 ¶¶ 98-103.) Under Section 2511, “any person who . . . intentionally

intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to

intercept any wire, oral, or electronic communication” violates the ECPA. 18 U.S.C.

§ 2511(1)(a). The Seconded Amended Complaint alleges that Defendants Bridges and White

worked together with others to conduct illegal surveillance of the Attkissons’ electronic

devices. (ECF No. 35 ¶ 66.) The Second Amended Complaint also alleges that Defendant

White reported to the Attkissons that he worked directly with Defendant Bridges to conduct

the surveillance. (Id. ¶ 69) Plaintiffs are pursuing their claim against Defendant Bridges under

the ECPA’s private right of action, which provides that:

any person whose wire, oral, or electronic communication is intercepted,

disclosed, or intentionally used in violation of this chapter may in a civil action

recover from the person or entity, other than the United States, which engaged

in that violation.

18 U.S.C. § 2520(a).

Defendant Bridges argues that qualified immunity shields him from liability under the

ECPA. Qualified immunity protects government officials from civil liability and suit “insofar

as their conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” See Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). When an official asserts the defense of qualified immunity, as Defendant Bridges has

done in this case, the plaintiff must show: “(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.” See Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (internal quotations omitted). If

Plaintiffs do not establish either of these prongs, their ECPA claim fails, and the official is

entitled to qualified immunity. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

In Attkisson, the Fourth Circuit held that to the extent Defendants Holder and

Donahoe procured any wrongful interception, use, or disclosure of the Attkissons’ electronic

communications, they did not violate a clearly established right because there is a lack of

settled precedent supporting liability for procurers of violations of the ECPA. 925 F.3d at

623. In this case, however, Plaintiffs allege that Defendant Bridges himself engaged in conduct

that violated the ECPA. Therefore, Plaintiffs have sufficiently alleged that Defendant

Bridges, who at the time was a government official working as a Special Agent with the

United States Secret Service, illegally accessed and surveilled their electronic devices in

violation of the ECPA. Accordingly, at this stage in the proceedings the determination as to

a qualified immunity defense must await further discovery in this case. Moreover, Defendant

Bridges, who is himself a convicted felon, argues that Plaintiffs have failed to plead facts

sufficient to rise to a plausible claim for relief because they rely on information obtained

from Defendant White, who is also a convicted felon. As Judge Motz of this Court has

noted: “In a motion to dismiss, the court’s role is not to weigh the evidence or assess

plaintiff’s credibility, but rather to accept plaintiff’s assertions as true.” Rohan v. Networks

Presentation Llc, 192 F. Supp. 2d 434, 437 (D. Md. 2002). This Court will not make credibility

judgments at this stage in this case. Defendant Bridges Motion to Dismiss is DENIED as to

Count 2.

CONCLUSION

For the reasons stated above, Defendant Bridges Motion to Dismiss (ECF No. 58),

construed as a motion pursuant to Rule 12(c), is GRANTED IN PART AND DENIED IN

PART. Specifically, the Motion is GRANTED as to Count 1 and DENIED as to Count 2.

A separate Order follows.

Dated: December 27, 2021

______/s/_______

Richard D. Bennett

United States District Judge