The opinion of the court was delivered by: William W. Caldwell United States District Judge
We are considering a motion to dismiss filed by defendant, James Powers, Jr., former Director of the Pennsylvania Emergency Management Agency's Office of Homeland Security ("Powers"), and a motion to dismiss filed by defendants Institute of Terrorism Research and Response Foundation, Institute of Terrorism Research and Response, and Michael Perelman (collectively "ITRR defendants"). This matter relates to a contract between Powers and ITRR whereby ITRR agreed to maintain surveillance and report potential terrorist threats against Pennsylvania's critical infrastructure. ITRR began surveilling plaintiff, Gas Drilling Awareness Coalition ("GDAC"), and reporting its activities through Pennsylvania Intelligence Bulletins ("PIB"). Plaintiff filed the instant action alleging violations of its right of freedom of speech and association under the First Amendment, retaliation for exercise of First Amendment rights, violation of the Due Process Clause of the Fourteenth Amendment, and violation of Article I, Section 20 of the Pennsylvania Constitution.
In a motion to dismiss under Fed. R. Civ. P. 12(b)(6), we must take all factual allegations in the complaint as true. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). The plaintiff sets out the following facts in its complaint. The case arises from a surveillance program created by a contract between defendant Powers and defendant ITRR to protect against threats to critical infrastructure. As part of the contract, ITRR identified threats and reported them as noted. ITRR recognized GDAC as a potential threat and began surveillance of the organization.
GDAC is an unincorporated organization that advocates regulation of natural gas drilling of Pennsylvania's Marcellus Shale. The group uses a grass-roots campaign to educate the public on the health and environmental impact of unregulated drilling. At all times, plaintiff's conduct and speech was lawful and peaceful. Plaintiff alleges that its activities caused it to be targeted by ITRR as a potential threat to critical infrastructure. As a result, ITRR surveilled plaintiff and compiled the information in tri-weekly PIB bulletins. These bulletins were then provided to law enforcement agencies, and to "private third party individuals and entities." (doc. 1, ¶ 74.)
As relief, plaintiff asks for declaratory judgment that defendants' conduct violated the U.S. Constitution and Pennsylvania Constitution. Plaintiff also seeks to permanently enjoin defendants from conducting surveillance against individuals and groups engaged only in peaceful First Amendment conduct, prevent defendants from reporting such conduct, and order defendants to delete and destroy all information gathered against plaintiff. Finally, plaintiff seeks nominal damages in the amount of $125,000 and reasonable attorney's fees, costs, and expenses.
Federal Rule of Civil Procedure 12(b)(1) allows a court to dismiss a complaint for lack of subject-matter jurisdiction. When a motion to dismiss pursuant to Rule 12(b)(1) is presented, the plaintiff is required to "convince the court it has jurisdiction." Gould Elecs., Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000). Plaintiffs "bear the burden of establishing their standing." Common Cause of Pa. v. Pennsylvania, 558 F.3d 249, 257 (3d Cir. 2009) (citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006)).
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." Under Rule 12(b)(6), we must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). A complaint need only contain "a short and plain statement of the claim," Fed. R. Civ. P. 8(a)(2), and detailed factual allegations are not required, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d. 929 (2007). A complaint must plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. 1955 at 1974. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, - - - U.S. - - - -, 129 S.Ct. 1937, 1949 (2009)(quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965.) "[L]abels and conclusions" are not enough, Twombly, 550 U.S. at 555, 127 S.Ct. at 1964-65, and a court "'is not bound to accept as true a legal conclusion couched as a factual allegation.'" Id., 127 S.Ct. at 1965 (quoted case omitted).
In resolving a motion to dismiss, we thus "conduct a two-part analysis." Fowler, supra, 578 F.3d at 210. First, we separate the factual elements from the legal elements and disregard the legal conclusions. Id. at 210-11. Second, we "determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "'plausible claim for relief.'" Id. at 211 (quoted case omitted).
Article III of the Constitution requires federal courts to adjudicate only "cases" and "controversies." Raines v. Byrd, 521 U.S. 811, 818 (1997); Peachlum v. City of York, 333 F.3d 429, 433 (3d Cir. 2003). In order to have standing, a plaintiff must prove (1) injury in fact, (2) a causal connection between the injury and the challenged action, and (3) a likelihood that the injury is redressible by a favorable judicial decision. Common Cause of Pa. v. Pennsylvania, 558 F.3d 249, 258 (3d Cir. 2009).
The first two requirements for standing are met, because there is an injury in fact and a causal connection. The Supreme Court has held that the surveillance of peaceful activity by law enforcement officials, without more, is not enough to present a justiciable controversy for the courts to decide because no direct injury results from such activity. See Laird v. Tatum, 408 U.S. 1, 13 (1972). The sharing of such information with individuals not involved in law enforcement or government agencies, however, does create a harm. See Philadelphia Yearly Meeting of the Religious Society of Friends v. Tate, 519 F.2d 1335, 1338 (3d Cir. 1975) (stating that sharing of surveillance information with non-police groups "at minimum, show immediately threatened injury to plaintiffs by way of a chilling of their rights of freedom of speech and associational privacy."). In determining whether an injury occurred, the Third Circuit focused on the legitimate law enforcement function when it noted "[i]t is not apparent how making information concerning the lawful activities of plaintiffs available to non-police groups or individuals could be considered within the proper ambit of law enforcement activity." Id. These cases make clear that government surveillance alone does not amount to an injury, but dispersal of the information to non-police groups may create an injury.
The surveillance of plaintiff's activities and reporting of such activity to those not involved in law enforcement, as described in plaintiff's complaint, amounts to an injury. There is a causal connection between the injury and the challenged action. Powers made an agreement with ITRR to conduct the surveillance. ITRR performed the surveillance and reported plaintiff's activities to Powers. The compiled information was sent to law enforcement, gas drilling stakeholders, and an individual member of the public. This demonstrates a causal connection.
The final requirement for standing is also met, because it is likely that plaintiff's injury is redressible by a favorable court decision. In its claim for relief, plaintiff requests a declaratory judgment, injunctive relief, nominal damages, and attorney's fees. Part of the injunctive relief requested is having defendant Powers delete all information gathered about plaintiff. This, along with nominal damages and attorney's fees, are sufficient to redress plaintiff's injury. Plaintiff has met all of the standing requirements to bring this case.
Defendants argue that the injunctive relief requested by plaintiff is moot and overreaches. Plaintiff has requested to permanently enjoin defendants from conducting surveillance of individuals and groups engaged only in peaceful activity, reporting on the conduct of such individuals, and ordering defendants to delete and destroy any information gathered about plaintiff. Plaintiff's first two requests are moot and overreaching.
Third Circuit precedent makes clear that "An injunction is appropriate only where there exists a threat of irreparable harm such that legal remedies are rendered inadequate." Anderson v. Davila, 125 F.3d 148, 163 (1997). If a plaintiff seeks an injunction to terminate surveillance by the government that has already been terminated, "an injunction is unnecessary and unsupportable." Id. at 164. In a case dealing with government surveillance, an injunction may be appropriate if the surveillance is ongoing or if "there is a credible threat that it will recur in the future." Id. at 164.
In its complaint, plaintiff notes that "Gov. Rendell alleges that he immediately cancelled the surveillance and reporting contract between the Commonwealth and Defendants ITRR Foundation and/or ITRR and Perelman." (doc. 1, ¶ 69). Plaintiff's complaint does not allege any facts that would indicate a threat that the surveillance will recur in the future. In its brief, plaintiff includes additional facts that may indicate possible recurrence. Plaintiff's complaint, however, "may not be amended by the briefs in opposition to a motion to dismiss." Commonwealth of Pa. Ex rel Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (citing Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984)). Since the contract between Powers and ITRR was canceled, there is no threat of future surveillance by these defendants. Plaintiff's request for injunctive relief to prevent defendants from conducting surveillance and reporting on that surveillance is moot and will be dismissed.
Plaintiff's request to have defendants delete and destroy any information gathered against plaintiff is not moot or overreaching. Plaintiff alleges that the surveillance bulletins are still available on the website of the Commonwealth, meaning the request to have them removed is not moot. The claim does not overreach, because it requests that only information concerning plaintiff be removed from ...