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Journalist Can’t Sue Rod Rosenstein for Alleged Illegal Spying on Her Family During Obama Admin Because of Qualified Immunity


Television journalist Sharyl Attkisson and her family sued former deputy attorney general Rod Rosenstein for illegally spying on them in violation of the Fourth Amendment and federal law during the Obama administration. A federal court dismissed the lawsuit earlier this week by finding that Rosenstein is entitled to qualified immunity.

The controversy has taken numerous paths through the legal system since the Attkissons claimed they discovered that the government had hacked into their computers and cellphones in 2014—first filing a lawsuit against former U.S. Attorney General Eric Holder, former U.S. Postmaster General Patrick Donahoe, and numerous “John Doe” agents with the U.S. Department of Justice (DOJ) based on alleged violations of the First and Fourth Amendments.

The Tuesday decision notes the case’s initial claims:

The Plaintiffs had specifically alleged that Holder was personally involved in discussions that centered on Sharyl’s “Fast and Furious” reporting, and that he directed one of his aides to “get a ‘handle’” on her reporting. The Plaintiffs also alleged that Donahoe was ultimately responsible for the use of the USPS network to infiltrate the Attkissons’ devices and the unconstitutional monitoring of mail as part of a mass surveillance program.

The lawsuit was originally filed in the local D.C. Superior Court. The case was then transferred to the U.S. District Court for the District of Columbia before being moved again to the U.S. District Court for the Eastern District of Virginia. By late 2017, Holder and Donahoe were removed from the complaint—leaving only the unnamed DOJ agents.

The Attkissons then attempted to amend their complaint by adding the United States as well as several corporations that they said facilitated the Obama administration’s unlawful surveillance regime, but Judge Leonie Brinkema dismissed the case in early 2018 based on the notion that Attkisson and her family “had violated several of the court’s earlier orders with regard to amending their complaint.” The court later firmed up its dismissal in a separate order by noting that the Attkissons had also failed to identify the 50 alleged DOJ agents and that “no substantial progress” in that regard had occurred to date. The family appealed but the Fourth Circuit upheld the lower court’s decision.

In January 2020, based on new information from an anonymous source, the Attkissons tried again. This time they alleged that Rosenstein along with several other named defendants—including the FBI’s former D.C. head Shawn Henry—directly facilitated the spying and violated their Fourth Amendment rights as well as two statutory violations of the Electronic Communications Privacy Act.

Rosenstein and Henry responded to the lawsuit with a motion to dismiss based on qualified immunity and other grounds.

On Tuesday, U.S. District Court Judge Richard Bennett in the U.S. District Court for the District of Maryland ruled in all the defendants’ favor—dismissing the case against Rosenstein, Henry and even the defendants who didn’t ask the court to dismiss the lawsuit.

Judge Bennett found that the Fourth Amendment claims were barred by collateral estoppel—the legal doctrine that bars courts from constantly re-litigating the same basic claims. Here, the court determined that the Attkissons’ claim, known as a Bivens claim, had already been litigated against Holder. A Bivens claim is the only remedy for suing a federal agent who deprives a person of their constitutional rights and is based on the landmark Supreme Court case of Bivens v. Six Unknown Named Agents.

The decision notes:

[T]he Fourth Circuit in [their previous review of the Holder lawsuit] determined that where plaintiffs claim violation of Fourth Amendment rights on the basis of unlawful electronic surveillance against high-level government officials, such circumstances present a new Bivens context. The Court refused to create the remedy the Attkissons requested. The case involved the same alleged scheme of electronic surveillance, only it named different high level government officials as defendants. There is no dispute that the issue of whether a Bivens claim was cognizable was critical in that case and that the judgment was final and valid. There is no indication that the Plaintiffs were not afforded a “full and fair opportunity to litigate” their claims—the litigation of their previous suit lasted more than three years. Accordingly, the doctrine of collateral estoppel is applicable in this case.

As for the statutory allegations, the court once again reached back to the original Holder lawsuit and applied the Fourth Circuit’s logic and reasoning.

“[T]he Fourth Circuit held that to the extent the earlier defendants Holder and Donahoe procured any wrongful interception, use, or disclosure of the Attkissons’ electronic communications, they did not violate a clearly established right,” Bennett noted.

The judge explained that there is a “lack of settled precedent” on whether qualified immunity extends to spying on U.S. citizens—which effectively allowed the Fourth Circuit to set the standard in its jurisdiction by ruling that officials are protected from lawsuits for conducting such spying. That standard, notably, was set in the previous lawsuit against Holder.

“The same reasons apply directly in this case to Rosenstein and Henry,” Bennett opined. “For the same reasons Holder and Donahoe were protected by the doctrine of qualified immunity in the Plaintiffs’ earlier suit, Defendant Rosenstein is clearly protected by the doctrine in this case. The Plaintiffs’ sole allegation related to Rosenstein’s involvement in the alleged electronic surveillance of their devices is that he ‘ordered’ others to engage in the allegedly unlawful conduct. Without a clearly established right to recover against a mere “procurer” of illegal interceptions, the Plaintiffs cannot establish both prongs of the test as required to overcome Rosenstein’s claim of qualified immunity.”

[image via Chip Somodevilla/Getty Images]

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