Opinion
Civil Action No. 22-0962 (TSC)
2023-11-10
Tobias JONES, Plaintiff, v. U.S. SECRET SERVICE, et al., Defendants.
Charles Devin Watkins, Competitive Enterprise Institute, Washington, VA, for Plaintiff. Daniel Alan Schiffer, Dedra Seibel Curteman, DOJ-USAO, U.S. Attorney's Office, Civil Division, Washington, DC, for Defendant U.S. Secret Service. David W. Inkeles, Laura Katherine Smith, U.S. Department of Justice, Civil Division, Washington, DC, Daniel Alan Schiffer, Dedra Seibel Curteman, DOJ-USAO, U.S. Attorney's Office, Civil Division, Washington, DC, for Defendants James Fisher, Holland.
Charles Devin Watkins, Competitive Enterprise Institute, Washington, VA, for Plaintiff. Daniel Alan Schiffer, Dedra Seibel Curteman, DOJ-USAO, U.S. Attorney's Office, Civil Division, Washington, DC, for Defendant U.S. Secret Service.
David W. Inkeles, Laura Katherine Smith, U.S. Department of Justice, Civil Division, Washington, DC, Daniel Alan Schiffer, Dedra Seibel Curteman, DOJ-USAO, U.S. Attorney's Office, Civil Division, Washington, DC, for Defendants James Fisher, Holland.
MEMORANDUM OPINION
TANYA S. CHUTKAN, United States District Judge.
Plaintiff Tobias Jones bring this action, alleging violations of his First and Fourth Amendment rights, against the United States Secret Service and two of its officers. Plaintiff claims that Sergeant Travas Holland and Officer James Fisher unlawfully interfered with his right to record and provide commentary on the public performance of their duties and his right against excessive force, search, and seizure following an altercation outside a Secret Service hangar in Washington, D.C. Compl. at 1, ECF No. 1. Plaintiff's suit charges Holland and Fisher in their individual capacities under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and in their official capacities under the Declaratory Judgment Act, 20 U.S.C. § 2201, and this court's equitable jurisdiction. Id. ¶¶ 70, 77, 85, 95 (individual capacity claims); id. ¶¶ 75, 83, 93, 100 (official capacity claims). He also brings an Administrative Procedure Act claim against the Secret Service for failure to properly train agents "in how to interact with members of the public who are recording video for First Amendment purposes." Id. ¶ 105.
Defendants moved to dismiss Plaintiff's official capacity and individual capacity claims under Federal Civil Procedure Rule 12(b)(1) and Rule 12(b)(6), respectively. See Defs.' Mot. to Dismiss Official Capacity Claims at 1, ECF No. 12; Defs.' Mot. to Dismiss Individual Capacity Claims at 1, ECF No. 14. The court will GRANT Defendants' motions for the reasons below.
I. BACKGROUND
As it must at the motion to dismiss stage, the court assumes the truth of the facts alleged in the Complaint. Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009). On April 9, 2019, Plaintiff was "videotaping his adventures around Washington, D.C. with intent to add commentary and distribute it to the public as a citizen journalist." Compl. ¶ 7. Plaintiff noticed a "strange looking building" with "a large open hangar door" and began recording from the sidewalk. Id. ¶¶ 7-8. Defendant Fisher, who was guarding a post inside the hangar, approached Plaintiff and informed him that he could not point his camera towards the large open hangar door. Id. ¶¶ 9-13. Plaintiff asked Fisher if recording was illegal, and Fisher responded he was "letting [Plaintiff] know that you cannot take a picture inside of here." Id. ¶¶ 14-15. Fisher walked away from the encounter, returned about 30 seconds later to find Plaintiff still recording the building, and "grab[bed] the camera and attempt[ed] to physically force it to point in a different direction." Id. ¶¶ 18-19. Plaintiff continued to record as he and Fisher argued over whether Fisher had in fact grabbed Plaintiff's camera. Id. ¶¶ 23-26.
Defendant Holland approached Plaintiff ten minutes later as he continued to film the hangar and asked for Plaintiff's identification. Id. ¶¶ 27, 29. Plaintiff asked Holland why he needed identification to film
on a public sidewalk and Holland explained that Plaintiff was filming government property. Id. ¶¶ 30-31. After Plaintiff refused to provide his identification, Holland told him that he needed to move away from the building. Id. ¶ 32. Plaintiff refused to leave and continued to question the legality of Fisher and Holland's demand not to film the hangar. Id. ¶¶ 33-45. After he again refused to provide identification, Holland "informed Plaintiff ... that [he] was being detained." See id. ¶¶ 45-46. Holland searched Plaintiff's pockets, removed a cellphone, took Plaintiff's camera, "force[d] Plaintiff to the ground," handcuffed him, and searched his backpack. Id. ¶¶ 47, 49-51. After completing the search, Holland "removed the handcuffs and explained that he had detained Plaintiff to ascertain Plaintiff's identity and confirm that Plaintiff was not a threat...." Defs.' Mot. to Dismiss Individual Capacity Claims at 4; Compl. ¶¶ 53-55. Holland explained that Plaintiff had a backpack which could contain explosives and was "standing in front of a federal building." Compl. ¶ 57. After Plaintiff asked if he was free to leave, Holland confirmed that he was and Plaintiff left the sidewalk in front of the hangar. Id. ¶ 64.
Plaintiff seeks compensatory and punitive damages for alleged violations of his First and Fourth Amendment rights, and declaratory and injunctive relief related to his First and Fourth Amendment claims in Counts One through Four. Id. ¶¶ 72, 74-75, 80, 82-83, 91-93, 97, 99-100. Count Five alleges failure-to-train allegations under the Administrative Procedure Act ("APA") and seeks an injunction "ordering training of secret service officers such as Sergeant Holland and Officer James Fisher to properly instruct them in dealing with members of the public who are recording video so that such constitutional rights violations do not continue against Plaintiff or other members of the public." Id. ¶ 106.
II. LEGAL STANDARD
A. Rule 12(b)(6)
A motion to dismiss under Rule 12(b)(6) for failure to state a claim tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is plausible when it alleges sufficient facts to permit the court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citation omitted). Claims that do not meet the plausibility standard must be dismissed on a Rule 12(b)(6) motion. See Twombly, 550 U.S. at 570, 127 S.Ct. 1955.
When considering a motion to dismiss for failure to state a claim, the court must construe the complaint in the light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. See Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979), aff'd on reh'g, 628 F.2d 199 (D.C. Cir. 1980) (internal quotations omitted) ("The complaint must be liberally construed in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged."). The court can only consider "the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [the court] may take judicial notice." EEOC v. St. Francis Xavier Parochial
Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
B. Rule 12(b)(1)
In evaluating a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction, the Court must "assume the truth of all material factual allegations in the complaint and 'construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged[.]'" Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). The court is not limited to the allegations set forth in the complaint, and "may consider materials outside the pleadings." See Jerome Stevens Pharms., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253-54 (D.C. Cir. 2005).
III. ANALYSIS
A. Individual Capacity Claims
i. Fourth Amendment Claims
Count One alleges that Officer Fisher used excessive force in violation of the Fourth Amendment by physically pushing Plaintiff's camera away from the open hangar door. Compl. ¶¶ 19, 21, 70-74. Counts Two and Three allege that Sergeant Holland conducted an unreasonable search and seizure when he detained Plaintiff and searched his backpack. Id. ¶¶ 45-59, 77-82, 85-92. Plaintiff seeks money damages under Bivens for each violation.
Bivens held that the Fourth Amendment "creates an implied damages action for unconstitutional searches against line officers enforcing federal drug laws." Loumiet v. United States, 948 F.3d 376, 377-78 (D.C. Cir. 2020). In the decade after Bivens, the Supreme Court applied the case in two new contexts—"one under the Fifth Amendment against members of Congress for employment discrimination on the basis of sex and one under the Eighth Amendment against federal prison officials for failure to provide adequate medical care." Id. at 380 (citing Davis v. Passman, 442 U.S. 228, 248-49, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979); Carlson v. Green, 446 U.S. 14, 19, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980)). The Supreme Court has not recognized a new Bivens claim for more than 40 years. Buchanan v. Barr, 71 F.4th 1003, 1007 (D.C. Cir. 2023). Instead, "the Supreme Court has carefully circumscribed Bivens and 'consistently refused to extend Bivens to any new context or new category of defendants.'" Loumiet, 948 F.3d at 380 (citing Ziglar v. Abbasi, 582 U.S. 120, 135, 137 S.Ct. 1843, 198 L.Ed.2d 290 (2017)).
When presented with a Bivens claim, the court first asks if the claim arises in a "new context" from the three types of Bivens claims recognized by the Supreme Court. Buchanan, 71 F.4th at 1007. The Supreme Court has explained that a new context "arises when there are 'potential special factors that previous Bivens cases did not consider.'" Egbert v. Boule, 596 U.S. 482, 492, 142 S.Ct. 1793, 213 L.Ed.2d 54 (2022) (quoting Abbasi, 582 U.S. at 140, 137 S.Ct. 1843). If so, the court considers "whether there are any special factors counselling hesitation," Loumiet, 948 F.3d at 381, wary that recognizing a Bivens cause of action is "a disfavored judicial activity." Egbert, 596 U.S. at 491, 142 S.Ct. 1793 (quoting Abbasi, 582 U.S. at 135, 137 S.Ct. 1843). One such factor is national security. "Matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention," and a Bivens cause of action may not lie where national security is at issue. Egbert, 596 U.S. at 494, 142 S.Ct. 1793 (quoting Haig v. Agee, 453 U.S. 280, 292, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981)). The court must also
heed the Supreme Court's warning that, "[w]hile our cases describe two steps, those steps often resolve to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy." Id. at 492, 142 S.Ct. 1793.
The facts of Plaintiff's Fourth Amendment claims against agents Fisher and Holland do not meaningfully differ from the facts of Bivens itself. In Bivens, the plaintiff alleged that Federal Bureau of Narcotics agents unlawfully entered his apartment and used constitutionally unreasonable force to arrest him. 403 U.S. at 389, 91 S.Ct. 1999. Plaintiff similarly alleges an unconstitutional arrest using excessive force, though on a public sidewalk. Compl. ¶¶ 30, 46-50, 72. But all parties acknowledge that "a case can present a new context even if it might otherwise have 'significant parallels' to Bivens itself." Defs.' Mot. to Dismiss Individual Capacity Claims at 8 (quoting Abbasi, 582 U.S. at 147, 137 S.Ct. 1843); Opp. to Defs.' Mot. to Dismiss Individual Capacity Claims at 26, ECF No. 16 ("[I]t is true that even within the Fourth Amendment, courts must consider if there is some special context not considered by the Court in Bivens."). Most recently, the Supreme Court in Egbert held a Fourth Amendment claim against a Customs and Border Patrol officer arose in new context despite "similar allegations of excessive force," and "almost parallel circumstances or a similar mechanism of injury" to the plaintiff in Bivens. 596 U.S. at 495, 142 S.Ct. 1793 (internal quotations omitted).
This case differs in a meaningful way from Bivens based on the "statutory or other legal mandate under which the officer[s]" operated. Abbasi, 582 U.S. at 140, 137 S.Ct. 1843. In its mission to ensure the security of our country's highest-ranking officials, the Secret Service performs unique tasks beyond those entrusted to other law enforcement officers. Fisher and Holland operate under a statutory mandate to ensure the President and other high-ranking officials' protection by investigating and thwarting threats to their security, their immediate families, and the buildings in which they live and work. 18 U.S.C. §§ 3056-3056A (powers, authorities, and duties of United States Secret Service and Secret Service Uniformed Division); see also Jud. Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 212 (D.C. Cir. 2013); Defs.' Mot. to Dismiss Individual Capacity Claims at 9.
Plaintiff's Complaint contains sufficient allegations for the court to conclude that the agents were carrying out the Secret Service's protective functions during the altercation. Officer Fisher manned a guard post just inside a "large open hangar door" of a "strange looking building" in Washington, D.C., which Sergeant Holland later identified as a federal building. Compl. ¶¶ 7-9, 57. The officers repeatedly told Plaintiff he could not film or photograph the interior of the building, establishing a concern for the secrecy and security of the people and equipment inside. Id. ¶¶ 13, 15, 33, 35. The officers' decision not to answer Plaintiff's questions about the building's function also reflects discretion about its purpose. And Sergeant Holland explained he decided to search Plaintiff's backpack because he needed to be sure Plaintiff was not a threat. Id. ¶¶ 53-55. Taken together, the above allegations allow the court to conclude that the agents were engaged in preserving the confidentiality of whatever Secret Service activity was conducted inside the hangar, as well as the safety of the building and its contents and/or occupants. The Secret Service agents' involvement reflects a minor, but dispositive, departure from the similar allegations of excessive force by federal
agents in Bivens. But because "even a modest extension is still an extension," Abbasi, 582 U.S. at 147, 137 S.Ct. 1843, Plaintiff's suit against line-level Secret Service officers engaged in their duties to protect and ensure the safety of the President and other high-ranking officials presents a new context the Supreme Court's previous Bivens cases did not consider.
Turning to step two, at least one special factor counsels hesitation. Abbasi, 582 U.S. at 142, 137 S.Ct. 1843; see also Buchanan, 71 F.4th at 1010 (holding the presence of one special factor "sufficient to preclude the availability of a Bivens remedy"). The Supreme Court has repeatedly recognized that national security concerns weigh heavily in the Bivens analysis. See Abbasi, 582 U.S. at 142-43, 137 S.Ct. 1843; see also Black Lives Matter D.C. v. Trump, 544 F. Supp. 3d 15, 31-32 (D.D.C. 2021). This is because "[t]he risk of personal damages liability is more likely to cause an official to second-guess difficult but necessary decisions concerning national security policy." Deryck v. Dep't of Def., No. 1:22-cv-3290 (TNM), 2023 WL 3303832, at *6 (D.D.C. May 8, 2023) (quoting Abbasi, 582 U.S. at 142, 137 S.Ct. 1843). Given the nation's "overwhelming... interest in protecting the safety of its Chief Executive," Watts v. United States, 394 U.S. 705, 707, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969), officers responsible for the protection of the President and other high-ranking officials "must be able to act without hesitation." Buchanan, 71 F.4th at 1009.
Restricting filming of a Secret Service hangar's interior—which may house sensitive personnel, vehicles, and equipment— serves the interest of national security by ensuring that individuals are not able to capture, study, or attempt to evade the Secret Service's law enforcement techniques. In re the City of New York, 607 F.3d 923, 940-41 (2d Cir. 2010) (recognizing "importance" of interest in preventing "the disclosure of law enforcement techniques and procedures"). As Defendants note, video footage or photographs revealing, for example, staffing allocations, shift hours, as well as the identities of personnel and vehicles coming and going from the hangar, could be used in any manner of ways that could circumvent Secret Service operations and consequently pose a threat to national security. Defs.' Mot. to Dismiss Individual Capacity Claims at 35-36.
Plaintiff contends that Defendants "fail [to] explain how the facts of this case actually cause any kind of national security problem," noting that pedestrians could have observed what he saw from his position on the sidewalk outside the hangar. Opp. to Defs.' Mot. to Dismiss Individual Capacity Claims at 28-29. But officers "need not have been responding to an ongoing or imminent threat to national security to invoke national security as a special factor." Buchanan, 71 F.4th at 1009. "Instead, courts ask whether they should alter the framework established by the political branches for handling cases with possible national security implications." Id. (quotations omitted). Because the officers were engaged in activity with national security applications and because "[n]ational-security policy is the prerogative of the Congress and President," the answer is no. Id. (quoting Abbasi, 582 U.S. at 142, 137 S.Ct. 1843).
Plaintiff's concern that the national security exception can be stretched too far is well-founded; the Supreme Court has cautioned that "national-security concerns must not become a talisman used to ward off inconvenient claims" or a "label used to cover a multitude of sins." Abbasi, 582 U.S. at 143, 137 S.Ct. 1843 (internal quotation marks omitted). Not every interaction involving Secret Service officers implicates
national security. But because Plaintiff persisted in filming the interior of a Secret Service hangar after he was repeatedly asked not to film the open door, the necessary nexus to national security risk existed and Bivens does not provide a remedy.
Plaintiff also seeks a declaration that the officers' conduct violated the Fourth Amendment. Compl. ¶¶ 75, 83, 93. The Declaratory Judgment Act, 28 U.S.C. § 2201, does not provide an independent cause of action. Ali v. Rumsfeld, 649 F.3d 762, 778 (D.C. Cir. 2011). For the reasons above, Plaintiff has not alleged a cognizable cause of action and therefore has no basis upon which to seek declaratory relief. See id. ("It is a well-established rule that the Declaratory Judgment Act is not an independent source of federal jurisdiction. Rather, the availability of [declaratory] relief presupposes the existence of a judicially remediable right.") (cleaned up).
ii. First Amendment Claim
Count Four alleges a violation of Plaintiff's First Amendment right to "record the actions of police officers in the public performance of their duties from a public forum ... for the purpose of adding commentary to distribute to the public." Compl. ¶ 97. Recast as a First Amendment retaliation claim in his opposition, Plaintiff's claim under any First Amendment theory is foreclosed by Supreme Court precedent. See Opp. to Defs.' Mot. to Dismiss Individual Capacity Claims at 29. "There is no Bivens action for First Amendment retaliation," and the Supreme Court has never recognized the availability of Bivens claims for First Amendment violations. Egbert, 596 U.S. at 499, 142 S.Ct. 1793; Buchanan, 71 F.4th at 1008; see also Black Lives Matter D.C., 544 F. Supp. 3d at 30 ("The plaintiffs' First Amendment claim arises in a new context because the Supreme Court has never extended Bivens to a claim brought under the First Amendment."). For the same reasons articulated above, national security concerns decisively weigh against recognizing a Bivens remedy on these facts under any First Amendment theory.
Plaintiff's reliance on Hartman v. Moore, 547 U.S. 250, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006), is misplaced. The Supreme Court noted in Egbert that it had previously "assumed that ... a damages action might be available" for First Amendment claims, but it squarely rejected the reading of Hartman Plaintiff suggests. Egbert, 596 U.S. at 498, 142 S.Ct. 1793 ("We have never held that Bivens extends to First Amendment claims") (quoting Reichle v. Howards, 566 U.S. 658, 663, n.4, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012)). As a result, the individual capacity claims in Counts One through Four must be dismissed.
Plaintiff also seeks an injunction against Officer Fisher and Sergeant Holland in their individual capacities. Opp. to Defs.' Mot. to Dismiss Individual Capacity Claims at 35. He claims that the officers' "actions in violation of the First and Fourth Amendment, contrary to the regulations and policies of their agency, are actions of the individuals in their personal capacity" and seeks "to enjoin them from continuing their illegal actions." Id. That attempt fails because relief for constitutional violations "can only be provided by the government through government employees acting in their official capacities because deprivation of a constitutional right can only be remedied by the government." Hatfill v. Gonzales, 519 F. Supp. 2d 13, 26 (D.D.C. 2007). Plaintiff's ultra vires theory does not require a different conclusion: "the 'ultra vires' or authority stripping theory enunciated in Young... does not support maintaining a legal action against government officers in their individual capacity where equitable relief is sought." Id. at 22.
B. Official Capacity Claims
Plaintiff seeks declaratory and injunctive relief against the officers in their official capacities for the First Amendment
violations alleged in Count Four. Opp. to Defs.' Mot. to Dismiss Official Capacity Claims at 3, ECF No. 17. He asks the court to issue an "an injunction against the United States Secret Service prohibiting such interference with his or other similar members of the public's First Amendment rights." Compl. ¶ 100. But Plaintiff lacks standing to bring his official capacity claims because he fails to show an actual or imminent injury. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); see also Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983).
Plaintiff must show he suffered an "injury in fact" that is neither conjectural nor hypothetical. Lujan, 504 U.S. at 560, 112 S.Ct. 2130. An allegation of future injury "may suffice," but a plaintiff seeking prospective injunctive relief faces "a more rigorous burden to establish standing." United Transp. Union v. ICC, 891 F.2d 908, 913 (D.C. Cir. 1989); Black Lives Matter D.C., 544 F. Supp. 3d at 34. "Past injuries alone are insufficient to establish standing," Dearth v. Holder, 641 F.3d 499, 501 (D.C. Cir. 2011), as are allegations of a subjective chilling effect from defendant's past actions. Laird v. Tatum, 408 U.S. 1, 13-14, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972) ("[A]llegations of a subjective 'chill' [upon the exercise of First Amendment rights] are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm."). Instead, the "threatened injury must be certainly impending to constitute injury in fact," and "allegations of possible future injury are not sufficient." Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (internal quotation marks and citation omitted) (emphasis in original). Even future injuries with an "objectively reasonable likelihood" of occurring are insufficient to establish standing. Id. at 409, 133 S.Ct. 1138.
The injury-in-fact requirement is satisfied by demonstration of an "intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by [government policy]." Turner v. U.S. Agency for Glob. Media, 502 F. Supp. 3d 333, 359 (D.D.C. 2020) (alteration in original). But Plaintiff has not pleaded any Secret Service policy as the basis for his claimed risk of future harm. In fact, he pleads the opposite: "It is Plaintiff's belief that [the officers' allegedly unconstitutional conduct] stems from a failure to properly train such officers in how to interact with members of the public who are recording video for First Amendment purposes." Compl. ¶ 104; see also Opp. to Defs.' Mot. to Dismiss Official Capacity Claims at 4 ("The failure to train officers who are currently serving presents an ongoing risk of injury to the Plaintiff and others like him."). A failure to train is not a "policy," and Plaintiff's Complaint asks the court to remedy this lack of policy by ordering training of Secret Service officers to "properly instruct them in dealing with members of the public who are recording video." Compl. ¶ 106. Nowhere does Plaintiff allege a Secret Service policy or practice of interfering with the public's exercise of First Amendment rights, and he points to no law directing search, seizure, and arrest of anyone filming a Secret Service building. A similar question arose in Black Lives Matter, D.C., where protestors brought claims for injunctive relief following the law enforcement response to protests in Lafayette Square on June 1, 2020. Black Lives Matter D.C., 544 F. Supp. 3d at 26, 34. Like Plaintiff, the Black Lives Matter plaintiffs did not rely on "any alleged law or policy as the basis for [their] claimed risk of future harm." Id. at 35; see also id. ("Plaintiffs do not challenge a large-scale policy—or any policy at all."). Plaintiff's allegation that he "fears that Officer Fisher, Sergeant Holland and other officers of the United States Secret Service will continue to violate First and Fourth Amendment rights in future encounters" echoes the Black Lives Matter plaintiffs' challenge to an "implied threat to take similar actions in the future at the President's whim." Id.; Compl. ¶ 67. Like the Black Lives Matter plaintiffs, Plaintiff does not claim that a law or policy has "ordered or authorized police officer[s] to act in such manner." Black Lives Matter D.C., 544 F. Supp. 3d at 35 (citing Lyons, 461 U.S. at 106, 103 S.Ct. 1660). Plaintiff's claims of impending future harm are similarly too speculative to confer standing to seek an injunction. Id. at 35-36.
Plaintiff asks the court to take judicial notice of two Department of Homeland Security "Information Bulletins" regarding photography of federal facilities (the Secret Service is part of the Department of Homeland Security). Opp. to Defs.' Mot. to Dismiss Individual Capacity Claims at 7, ECF Nos. 16-1, 16-2. The court considers them only for purposes of its 12(b)(1) analysis. Jerome Stevens Pharms., 402 F.3d at 1253-54. As Plaintiff describes, these bulletins indicate "there are currently no general security regulations prohibiting the exterior photography of any federally owned or leased building, absent a written local rule or regulation established by a Court Security Committee or Facility Security Committee." Opp. to Defs.' Mot. to Dismiss Individual Capacity Claims at 7. He fails to identify a "local rule or regulation" to challenge.
Plaintiff analogizes his case to Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), but misses the distinction that Steffel faced a specific Georgia trespass statute forbidding his conduct. Id. at 456, 94 S.Ct. 1209; see Opp. to Defs.' Mot. to Dismiss Official Capacity Claims at 6-7. Steffel alleged "threats of prosecution that cannot be characterized as 'imaginary or speculative,'" Steffel, 415 U.S. at 459, 94 S.Ct. 1209, and established his "intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by [government policy]." Turner, 502 F. Supp. 3d at 359. Plaintiff has not. Because no such practice or policy is alleged here, he lacks standing to seek an injunction.
C. APA Claim
Finally, Plaintiff claims the officers' "clear lack of knowledge" concerning his First and Fourth Amendment rights stems from the Secret Service's failure to properly train them in how to interact with members of the public who are recording video for First Amendment purposes. Compl. ¶¶ 103-04. Plaintiff's final count invokes the APA in seeking an injunction ordering training of Secret Service officers to "properly instruct them in dealing with members of the public who are recording video." Id. ¶ 106. Count Five must be dismissed for two reasons: first, the Complaint does not challenge a specific agency action, and second, this court cannot compel agency action that is not legally required. Norton v. S. Utah Wilderness All., 542 U.S. 55, 63-64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004).
Plaintiff's claim is properly analyzed under § 706(1) but fails to identify a discrete and mandatory agency duty. Section 706(1) authorizes courts to "compel agency action unlawfully withheld or unreasonably delayed[.]" 5 U.S.C. § 706(1). But "[a] claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take." Norton, 542 U.S. at 64, 124 S.Ct. 2373. Plaintiff seeks an injunction compelling the Secret Service to train officers to deal with a specific situation, but the Complaint is devoid of
any allegation that the agency is required to train its officers "in dealing with members of the public who are recording video." Compl. ¶ 106. "If a complaint that contains a claim brought under § 706(1) fails to identify a discrete and mandatory agency duty, the court must grant the defendant's Rule 12(b)(6) motion and dismiss the claim." Ctr. for Biological Diversity v. Zinke, 260 F. Supp. 3d 11, 21 (D.D.C. 2017) (citing Anglers Conservation Network v. Pritzker, 70 F. Supp. 3d 427, 439-41 (D.D.C. 2014), aff'd, 809 F.3d 664 (D.C. Cir. 2016)).
Whether a plaintiff has adequately pleaded a predicate agency duty is properly analyzed under Rule 12(b)(6), not Rule 12(b)(1). Sierra Club v. Jackson, 648 F.3d 848, 853-54 (D.C. Cir. 2011). Consequently, the court will not consider the exhibits attached to Plaintiff's Opposition to Defendants' Motion to Dismiss Individual Capacity Claims at ECF Nos. 16-1 and 16-2.
Plaintiff's reliance on § 702, which provides a cause of action to "person[s] suffering legal wrong because of agency action," fares no better. 5 U.S.C. § 702; Compl. ¶ 102. An "agency action" is "the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof." 5 U.S.C. § 551(13). That list is "expansive," but "the term [agency action] is not so all-encompassing as to authorize us to exercise judicial review over everything done by an administrative agency." Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 19 (D.C. Cir. 2006) (quoting Indep. Equip. Dealers Ass'n v. EPA, 372 F.3d 420, 427 (D.C. Cir. 2004)). For example, "broad programmatic attack[s]" that seek "wholesale improvement" of an agency's work are not reviewable. Norton, 542 U.S. at 64, 124 S.Ct. 2373. They do not challenge discrete agency actions, and the APA's limits on review of these challenges "protect agencies from undue judicial interference with their lawful discretion, and... avoid judicial entanglement in abstract policy disagreements which courts lack both expertise and information to resolve." Id. at 66, 124 S.Ct. 2373.
Plaintiff contends that his Complaint presents "a specific complaint as to the training officers received in the narrow context of First Amendment protected videorecording." Opp. to Defs.' Mot. to Dismiss Official Capacity Claims at 9. But the Complaint does not allege a denial of a discrete agency action; it alleges an ongoing "failure to properly train" officers. Compl. ¶ 104; Opp. to Defs.' Mot. to Dismiss Official Capacity Claims at 6 ("The failure to issue such proper training alleges not just one instance of wrongdoing, but an ongoing unlawful practice of the agency."). Review of an agency's alleged "failure to act" is "properly understood to be limited ... to a discrete action," and Plaintiff cannot recast inaction as a discrete denial to perform a mandated Secret Service function. Norton, 542 U.S. at 63, 124 S.Ct. 2373. The court is not authorized to mandate or supervise the Secret Service's training program; Plaintiff cannot seek "wholesale improvement of this program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made." Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 891, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). Count Five will therefore be dismissed under Rule 12(b)(6).
IV. CONCLUSION
For the reasons explained, the court will GRANT Defendants' Motions to Dismiss and dismiss the individual capacity and APA claims under Rule 12(b)(6). The court will dismiss the official capacity claims under
Rule 12(b)(1). An Order will accompany this Opinion.