March Madness

The United States Court of Appeals for the Fourth Circuit affirmed the dismissal of claims brought by former CBS investigative reporter Sharyl Attkisson alleging government surveillance of her home and work computers.

She had claimed that the surveillance came in the wake of her reporting on Fast and Furious and Benghazi. 

The court unanimously rejected claims brought in a personal capacity against the former Attorney and Postmasters General. 

A partial dissent by Associate Judge Wynn invokes the time of year

Beginning in the late 1960s, when the University of North Carolina Tar Heels seized the lead in the second half of a basketball game, Hall of Fame head coach Dean Smith would raise his arm and put up four fingers. Requiring no further instruction, two post players would run to the two corners of the court formed by the baseline and the sidelines, and two wing players would move to the corners formed by the mid-court line and the sidelines. The point guard—most famously, Phil Ford—would then dribble the ball at the top of the key as the clock ticked down, occasionally exchanging the ball with one of the wing or post players if the defense applied too much pressure. In this offense—commonly referred to as the “Four Corners”—the clock was the Tar Heels’ best friend. The longer the Tar Heels held the ball on offense, the less time their opponent had to try to score and cut into the Tar Heels’ lead. The Four Corners proved so successful that college basketball’s powers-that-be effectively outlawed it through the adoption of the shot clock in 1985.

In this case, the government—not unlike Dean Smith’s Tar Heels—put up the “fours” when Plaintiff-Appellant Sharyl Attkisson,  a journalist formerly employed by CBS News, filed suit against unnamed employees and agents of the federal government (the “Doe Defendants”). Attkisson alleged that the Doe Defendants conspired to violate her constitutional and statutory rights by accessing and commandeering her home and work internet-connected devices for surveillance purposes. But Attkisson never got a meaningful opportunity to pursue her claims because the government did everything in its power to run out the clock on Attkisson’s action—it filed motions challenging venue and jurisdiction, motions challenging the sufficiency of service, motions for extension of time, motions to dismiss, and motions for protective orders.

And just as the Tar Heels had great success running the Four Corners, the government’s strategy worked. Although Attkisson diligently sought to identify the Doe Defendants for nearly four years—including by repeatedly serving discovery on the government and third-parties directed at identifying the Doe Defendants—the district court dismissed her case with prejudice against the Doe Defendants for failing to comply with a court order to identify the names of the Doe Defendants by a date certain. The district court did so even though the government’s delaying tactics deprived Attkisson of any meaningful opportunity to engage in the discovery necessary to identify the Doe Defendants.

The majority opinion affirms the district court’s dismissal of Attkisson’s claims against the Doe Defendants on grounds that the dismissal constituted a permissible exercise of the court’s discretion to oversee discovery and sanction a party for failing to comply with a court order. But this Court long has held that plaintiffs—like Attkisson— who state a plausible claim that unnamed defendants violated their constitutional or statutory rights are entitled to a meaningful opportunity to engage in discovery aimed at identifying the “true identity of an unnamed party.” Schiff v. Kennedy, 691 F.2d 196, 197–98 (4th Cir. 1982). And this Court has held that dismissal of an action for failure to comply with a court order is a “drastic” sanction, Hillig v. C.I.R., 916 F.2d 171, 174 (4th Cir. 1990), that courts should impose only in “extreme circumstances,” Reizakis v. Loy, 490 F.2d 1132, 1135 (4th Cir. 1974).

Because the government deprived Attkisson of a meaningful opportunity to identify the Doe Defendants and the district court never determined that the requisite “extreme circumstances” were present to warrant dismissal for failure to comply with a court order, I disagree with the majority opinion’s determination that the district court permissibly exercised its discretion in dismissing Attkisson’s claims against the Doe Defendants. Not only should we disapprove of the tactics the government used to run out
the clock on Attkisson’s claims, but we should also reject the troubling “game plan” it provided for the government and private parties to prevent disclosure of—and, therefore, responsibility for—their potentially unconstitutional or illegal electronic surveillance activities. Accordingly, I respectfully dissent as to the dismissal of Attkisson’s claims against the Doe Defendants.

As one might expect, Judge Wynn has strong North Carolina ties. (Mike Frisch)