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Where do all the little green men come from?

Nov 18, 2009 Where do all the little green men come from?

A Lexis search of appellate opinions shows no judge calling anybody a nutball or whackjob.

However, a Lexis search does show at least two dozen occasions where appellate opinions have included the phrase “little green men”, including yesterday’s opinion from the D.C. Circuit.

We recognize that in a nation of 300 million people, with millions of government employees, some are bound at any given moment to be acting unwisely, foolishly, counterproductively, mistakenly, maliciously, viciously, even inanely. But the particular combination of sloth, fanaticism, inanity and technical genius alleged here seems to us to move these allegations into the realm of claims “flimsier than ‘doubtful or questionable’– . . . ‘essentially fictitious,’” Best, 39 F.3d at 330 (citing Hagans v. Lavine, 415 U.S. 528, 537 (1974)), not realistically distinguishable from allegations of “little green men” of the sort that Justice Souter recognized in Iqbal as properly dismissed on the pleadings. Iqbal, 129 S.Ct. at 1959 (Souter, J., dissenting). Indeed, the allegations appear similar to those in a number of cases that district courts have dismissed for patent insubstantiality: that plaintiff was subjected to a campaign of surveillance and harassment deriving from uncertain origins, either a long past employment by the FBI or a falling out with roommates even earlier, Curran v. Holder, 626 F. Supp. 2d 30, 33-34 (D.D.C. 2009); that a U.S. Senator orchestrated a program of hacking into plaintiff’s personal computer, monitoring his phone calls, causing a power outage affecting half of Los Angeles, and tracking him by helicopter, Lewis v. Bayh, 577 F. Supp.2d 47, 54-55 (D.D.C. 2008); and that the Postal Service had conspired with two persons unconnected to the federal government (and bearing her surname) to keep her under surveillance in Postal Service premises by unlawful use of electronic devices, Delaine v. United States Postal Service,

2006 WL 2687019, *2 (D.D.C. 2006), aff’d No. 06-5321, 2007 U.S. App. LEXIS 7371, unpublished order (D.C. Cir. June 1, 2007). Because the allegations of Tooley’s complaint constitute the sort of patently insubstantial claims dismissed in these and other cases, we conclude that the district court was correct in its judgment of dismissal.

Scott Tooley v. Janet Napolitano, Homeland Security Secretary, ___ F.3d ___ (D.C. Cir., Nov. 17, 2009).

The foregoing Tooley opinion denies a Freedom of Information Act appeal. At first blush, Mr. Tooley’s allegations giving rise to his FOIA request might sound farfetched at best. Tooley frames the appellant’s complaints as stemming from his allegations of being spied on by government agents through wiretaps and agents keeping an eye on him, and of being placed on a watch list that results in his being detained and searched before getting on flights. This alleged government behavior succeeded Mr. Tooley’s alleged 2003 response to a Southwest Airlines customer service agent’s question about how Southwest could provide better service, by his saying that security needed to be tightened up post-September 11 against such dangers as bomb-carrying passengers. He claims that the Southwest agent got shaken by his use of the “B-word.”

Perhaps I and other civil liberties lawyers in and around Washington, D.C., hear a greater share than attorneys elsewhere of apparently paranoid conspiracy assertions of government agents sending radio waves or neurotransmissions to control their thoughts, tapping their phones, and driving them nuts through surveillance. When I disbelieve such claims, I sometimes wonder if the complainant feels so marginalized and ignored by people that s/he cooks up such claims in response, or if a deeper problem is amiss.

Those who claim nonexistent government surveillance do a disservice to those who are in fact being spied on. Post-September 11, federal government spying is all the more the rage, and there is nothing to show that has stopped with President Obama’s administration, even though I hope it has slowed at least a little, but hope springs eternal.

Tooley does not reveal enough about the litigation to show the extent to which Scott Tooley’s allegations have been brought with a level head or something less than that. It does appear from the counsel list in the published case opinion that Tooley — a law school graduate — pursued his appeal without a lawyer, and that the court appointed a lawyer to argue Tooley’s case as a friend of the court.

Even when a person is paranoid or delusional that the government is spying on him or her, that does not automatically preclude the legitimacy of the person’s complaint of a related non-disclosure violation under the Freedom of Information Act. For one thing, paranoia and delusion can sometimes be based on at least grains of truth. Then, for people who truly are dogged by government agents, perhaps that sends some of them towards or over the edge, whether or not the surveillance was justified.

At first I got a laugh out of Tooley‘s reference to little green men, not yet having read Justice Souter’s discussion of the topic. However, as much as federal judges in the District of Columbia might be frustrated over the perhaps incessant flow of pro se complaints of government misdeeds, perhaps the reference to little green men was better left in the opinion-writing judge’s desk drawer in favor of milder language that Mr. Tooley’s allegations sound farfetched, but that this does not preclude a serious analysis under the Freedom of Information Act. Tooley does not appear to let concepts of “little green men” interfere with giving a full FOIA analysis.

I have sympathy for Mr. Tooley when considering that the federal executive branch has been very aggressive over the years in fighting FOIA complaints. Fortunately, early this year, President Obama issued a memorandum providing that: “All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government.  The presumption of disclosure should be applied to all decisions involving FOIA.”  However, once the federal executive branch decides to fight a FOIA request, I expect that the fight will be as aggressive as when George Bush II was president. Moreover, whether or not as an effort to limit the floodgates of FOIA litigation, the District of Columbia federal courts have set some high — but not insurmountable — hurdles on obtaining disclosure in FOIA litigation, including repeatedly allowing summary judgment for the government without even allowing discovery.

ADDENDUM: Having read Justice Souter’s dissent in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) — which Tooley cites for the “little green men discussion — I see that Tooley is saying that Tooley fails on appeal even when relying on the four Iqbal dissenters (Justices Souter, Stevens, Ginsburg and Breyer), who are much more charitable to saving litigants alleging governmental misdeeds than are the Iqbal majority.

Here is he amicus brief by the law firm which argued orally on Tooley’s behalf at the reconsideration hearing that led to yesterday’s Tooley opinion. Here is the Legal Times Blog‘s coverage of Tooley’s appeal.

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