Jacobus v. Huerta, No. 3:2012cv02032 - Document 29 (S.D.W. Va. 2013)

Court Description: ORDER ADOPTING PROPOSED FINDINGS AND RECOMMENDATIONS respecfully recommending that the presiding United States District Judge accept and adopt the findings herein and recommends that re: 26 Petition to Amend filed by Hank Jacobus, be denied 18 Petition for Miscellaneous Relief filed by Hank Jacobus be denied, 24 Petition for Miscellaneous Relief filed by Hank Jacobus be denied, and 25 Renewed Motion to Dismiss filed by Michael Huerta be Granted; Plaintiff's 2 Complaint and 23 Amended Complaint be Dismissed, with prejudice, for failure to state a claim. Signed by Magistrate Judge Cheryl A. Eifert on 2/22/2013. (cc: attys; any unrepresented party) (skm)
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Jacobus v. Huerta Doc. 29 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E SOU TH ERN D ISTRICT OF W EST VIRGIN IA H U N TIN GTON D IVISION H AN K JACOBU S, Plain tiff, v. Cas e N o . 3 :12 -cv-0 2 0 3 2 MICH AEL H U ERTA, FAA Ad m in is trato r D e fe n d an t. PROPOSED FIN D IN GS AN D RECOMMEN D ATION S Plaintiff, Hank J acobus (“J acobus”), filed a pro se Com plaint against Michael Huerta, in his official capacity as Adm inistrator of the Federal Aviation Adm inistration (FAA), alleging claim s of stalking, retaliation, invasion of privacy, negligence, and defam ation. (ECF No. 2). J acobus subsequently am ended the Com plaint, restating the sam e causes of action and adding alleged violations of his constitutional rights guaranteed by the Fourth, Fifth, Ninth, and Fourteenth Am endm ents to the United States Constitution. (ECF No. 23). Currently pending before the Court are Plaintiff’s Petitions for Injunction, (ECF Nos. 18, 24); Plaintiff’s Petition to Add a Defendant, (ECF No. 26); and Defendant’s Renewed Motion to Dism iss the Com plaint. (ECF No. 25). This m atter is assigned to the Honorable Robert C. Cham bers, United States District J udge, and is referred to the undersigned United States Magistrate J udge for total pretrial m anagem ent and subm ission of proposed findings of fact and recom m endations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth herein, the undersigned recom m ends - 1Dockets.Justia.com that Plaintiff’s Petitions for Injunction and to add a Defendant be denied and his Com plaint, as am ended, be dism issed in its entirety, with prejudice, for failure to state a claim for which relief m ay be granted. I. Fact Su m m ary J acobus alleges that he has been the target of constant governm ent-facilitated surveillance and harassm ent over the past three and a half years. (ECF Nos. 2, 18, 19, 23). According to J acobus, on Septem ber 12, 20 0 9, he was involved in an argum ent with an unidentified pilot at a sm all, private South Charleston, West Virginia airport. J acobus reports that he objected to the pilot’s “low banking takeoffs,” (ECF No. 2 at 2, ECF No. 19 at 1), and asked the pilot “if he’d be safer” when flying over nearby hom es. The pilot “refused and was very angry.” (ECF No. 2 at 2). J acobus then com plained to “the local tower,” as well as the owner of the airport. (Id.). J acobus claim s that since this incident, he has been subjected to continuous surveillance by aircraft, satellite, and unm anned drones, (ECF No. 2 at 2; ECF No. 8 at 2; ECF No. 18 at 1-2; ECF No. 19 at 1-2; ECF No. 23 at 1), police surveillance (ECF No. 8 at 3), and harassm ent in the form of airplanes regularly passing overhead or “buzzing” his hom e. (ECF No. 2 at 2-3; ECF No. 8 at 1). J acobus alleges that both private planes and com mercial jetliners have followed him around the country, repeatedly flying over all nine of the residences he has held in the last three years. (ECF No 2. at 3-5; ECF No. 2-1). Moreover, drones, spy planes, and m ilitary aircraft have been deployed to spy on him when he works on his house or goes on cam ping vacations. (ECF No. 2 at 2; ECF No. 8 at 2; ECF No. 23 at 1). J acobus contends that following his argum ent in Septem ber 20 0 9, the pilot reported J acobus to the FAA as a security threat. (ECF No. 18 at 1; ECF No. 19 at 2: ECF No. 23 at 1). J acobus com plains that the FAA failed to investigate the pilot’s charges -2- before it “accepted a serious false accusation against [him ].”1 (ECF No. 19 at 1). Moreover, according to J acobus, the FAA failed to contact the Federal Bureau of Investigation (FBI) so that a proper investigation could be conducted. (ECF No. 18 at 1). Instead, J acobus believes that the FAA recklessly forwarded his nam e to the Transportation Safety Adm inistration (TSA) or the Terrorist Screening Center (TSC),2 which resulted in his nam e being placed on a federal security/ terrorist watch list. (ECF No. 20 at 2, ECF No. 23 at 1). J acobus com plains that despite having written to the FAA on six occasions, he has never been inform ed of the evidence that led to his nam e being placed on the watch list, nor has he been provided with an opportunity to defend him self. (ECF No. 18 at 1, ECF No. 23 at 1-2). J acobus also alleges that the FAA “gave out [his] exact locations to [General Aviation] 3 pilots everywhere [he] went,” (ECF No. 18 at 1), which “caused local pilots to buzz [his] roofs everywhere he lived and traveled.” (ECF No. 19 at 2). II. Th e Evo lu tio n o f Plain tiff’s Alle gatio n s an d Pro ce d u ral H is to ry In his original Com plaint filed on J une 13, 20 12, J acobus alleged that the FAA “incited private pilots in 4 states, by knowingly [spreading] false rum ors, to harass him daily.” (ECF No. 2 at 1). According to J acobus, these pilots spied on him and routinely buzzed his hom e after being told by a few FAA “offenders” that J acobus had threatened the owner of a South Charleston airport. J acobus contended that these false rum ors were spread in retaliation for his 20 0 9 com plaint about the unidentified pilot’s unsafe take1 At a scheduling conference held on October 5, 20 12, J acobus suggested that the unidentified pilot colluded with a retired FAA em ployee to report him as a terrorist threat. 2 J acobus identifies the agency as the Terrorists Screening Agency or TSA, which does not exist. 3 According to the Aircraft Owners and Pilots Association, “[g]eneral aviation is all civilian flying except scheduled passenger airline service.” Aircraft Owners and Pilots Association, What is General Aviation, at 1, available at http:/ / www.aopa.org/ info/ what_ ga.pdf. Exam ples of general aviation include flying for purposes of “overnight package delivery,” “a weekend visit back hom e,” “em ergency medical evacuation,” “inspection trips to rem ote construction sites,” “aerial application to keep crops healthy” and “airborne law enforcem ent to keep the peace.” Id. -3- offs. J acobus also claim ed that the FAA intentionally routed jetliners over his various residences and sent drones and spy planes to follow him . Finally, J acobus indicated that the FAA was tracking his every m ovem ent, surm ising that GPS or “guidance system s” were being used for real-tim e stalking. (Id. at 3-5). For relief, J acobus asked that the Court order the FAA to “tell all pilots” that J acobus had never m ade any threats. (Id. at 5). In a docum ent entitled “Addition 2,” filed on J uly 24, 20 12, J acobus claim ed that law enforcem ent officers had begun to follow him as a result of the false rum ors started by the FAA. (ECF No. 8 at 3). He com plained that “loud choppers” hovered “exactly overhead” and drones incessantly spied on him , and that all of this surveillance was subsidized by “Hom eland Security.” (Id.). On August 24, 20 12, Defendant filed a Motion to Dism iss J acobus’s com plaint pursuant to Fed. R. Civ. P. 12(b)(1) and (6), or for a More Definite Statem ent (ECF No. 12). Plaintiff filed a response to the Motion to Dism iss and also filed a Petition for an Injunction. (ECF Nos. 18, 19, 20 ). In the Petition for Injunction, filed on Septem ber 10 , 20 12, J acobus alleged that the FAA provided General Aviation pilots with his address “everywhere [he] went” and continued to route com m ercial jetliners over his residences and cam psites to harass him . (ECF No. 18 at 1). J acobus asserted that while cam ping 450 m iles away from hom e, he learned that he had been placed on “watch lists as a threat.” (Id.). He argued that the Governm ent used satellites to surveil him without due process of law and in violation of the federal anti-stalking statute. Once again, J acobus claim ed that law enforcem ent was able to actively watch him with funds supplied through “a Hom eland Security Grant.” (Id. at 2). In his request for relief, J acobus sought a court order rem oving his nam e from any and all watch lists and to “stop the FAA calling on [him ].” (Id. at 3). -4- In a “Final Am endm ent,” filed on Septem ber 13, 20 12, J acobus contended that his Fourth Am endm ent right to be free of warrantless searches was being violated by the Governm ent. (ECF No. 19). He repeated that the FAA accepted a false accusation against him , which resulted in his inclusion on a national terrorist watch list. (Id. at 2). J acobus reasserted his claim that the FAA continued to spread false rum ors that he threatened an airport owner and provided private pilots with his addresses so that they could harass and stalk him . In J acobus’s view, he had been “secretly charged with a crim e, (m aking terrorist threats), serious enough to cause this intense, three year, open surveil [sic]. He’s been secretly found guilty, with no due process. Punishm ent was weekly low flying gas cans exactly over his hom es and m ore already described.” (Id.) He asked the Court to order his nam e rem oved from the watch list and to hear his constitutional claim s. (Id. at 3). The undersigned conducted an initial status conference on October 5, 20 12. After a lengthy discussion with the parties, the Court denied Defendant’s dism issal m otion, without prejudice, but granted his m otion for a m ore definite statem ent. (ECF No. 22). Thus, J acobus filed an Am ended Com plaint on Novem ber 5, 20 12. (ECF No. 23). In this pleading, J acobus reiterated that the FAA accepted false accusations against him and, without investigating their accuracy, reported him to the Terrorist Screening Agency. As a result, J acobus “has unjustly been [placed] on the terrorist watch list and punished, ever since” with relentless surveillance. (Id. at 1). J acobus also contended that m ultiple unidentified FAA staff m em bers inflicted their own punishm ent on him by diverting and directing com m ercial jetliners over his locations in three states for over 35 m onths. (Id. at 3). In his request for relief, J acobus asked the Court to order the FAA or Terrorist Screening Agency to explain to him why he was placed on the terrorist watch list, to notify -5- him that he had been rem oved from the watch list, “to cease notifying sm all plane pilots of his whereabouts,” and to correct the false rum ors about him . (Id.). In addition, J acobus sought m oney dam ages in an am ount between “$ 1.0 0 to $ 9,999” or as set by the Court. (Id.). On Novem ber 14, 20 12, J acobus filed a second petition for injunctive relief. (ECF No. 24), in which he requested that the Court order the FAA to stop notifying “sm all plane pilots” of his whereabouts. Again, J acobus claim ed that he was im properly placed on a watch list for “known or highly suspected terrorists” with “no police or FBI investigation and m uch evidence to the contrary.” (Id.). The following day, Defendant renewed his Motion to Dism iss. (ECF No. 25). J acobus did not respond to the renewed m otion, but did file a petition seeking to add as a defendant the “high altitude control center boss in the Indianapolis radar center,” who allegedly supervises the air traffic controllers that route Air Force jets and other aircraft over J acobus’s current residence 50 -75 tim es each day and “nearly exactly over every place [Plaintiff] goes in Cabell County, m om ents after he arrives, including Lowes, Barboursville Park, Wal Mart, a hom e on Cyrus Creek, a Winfield trailer dealership, Nationwide insurance office, State Farm insurance office, two cam pgrounds, and m ore.” (ECF No. 26 at 1). The undersigned has m eticulously reviewed J acobus’s filings to identify factual allegations and separate them from m ere conclusory allegations. In doing so, three essential factual claim s em erge that form the basis of J acobus’s com plaint, including the following: 1. J acobus had an argum ent with a private pilot in Septem ber 20 0 9; 2. After the argum ent, sm all planes began to buzz his house and com m ercial airliners and m ilitary aircraft repeatedly flew over him wherever he lived or traveled; and -6- 3. He observes aircraft, satellites, unm anned drones, and enforcem ent personnel lurking around him on a regular basis. law Using these assertions as a spring board, J acobus leaps to the following conclusions: 1. The FAA com m unicates false rum ors about him to private pilots so that they will harass him ; 2. The FAA intentionally routes com m ercial airliners and m ilitary aircraft over his hom es to harass him ; 3. The FAA illegally tracks his whereabouts; and 4. The FAA has placed his nam e on a national terrorist watch list without due process of law. The rem aining allegations asserted by J acobus fall in two categories. The first category includes details supporting his factual contention that he is harassed and surveilled; such as, dates, tim es, coordinates, and descriptions of aircraft flying or hovering overhead. The second category includes inform ation irrelevant to his claim s, but perceived by him to support his conclusions; such as, published reports of corruption, drug use, and retaliation within the FAA. J acobus sues the FAA on causes of action sounding in tort, including “invasion of privacy, stalking, harassm ent, defam ation,” and negligence; for violations of the federal anti-stalking statute, 18 U.S.C. § 2261A; and for violations of his constitutional rights. (ECF No. 18 at 3). III. Stan d ard o f Re vie w Defendant argues, inter alia, that J acobus’s com plaint should be dism issed because he fails to state a claim for which relief m ay be granted under Federal Rule of Civil Procedure 12(b)(6). “To survive a m otion to dism iss, a com plaint m ust contain sufficient factual m atter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (20 0 9), -7- quoting Bell Atlantic Corp v. Tw om bly , 550 U.S. 544, 570 , 127 S.Ct. 1955, 167 L.Ed.2d 929 (20 0 7). The Suprem e Court explained the “plausibility” standard in Iqbal, stating: A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the m isconduct alleged. The plausibility standard is not akin to a “probability requirem ent,” but asks for m ore than a sheer possibility that a defendant has acted unlawfully. Where a com plaint pleads facts that are “m erely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlem ent to relief.’ Iqbal, 556 U.S. at 678, quoting Tw om bly , 550 U.S. at 556-57 (internal citations om itted). Determ ining whether a com plaint states a facially plausible claim for relief is a “contextspecific task that requires the court to draw on its judicial experience and com m on sense.” Id. at 679 (citing Iqbal v. Hasty , 490 F.3d 143, 157-158 (2nd Cir. 20 0 7)). “[W]here the well-pleaded facts do not perm it the court to infer m ore than a m ere possibility of m isconduct, the com plaint has alleged—but it has not shown—that the pleader is entitled to relief.” Iqbal, 556 U.S. at 678 (quoting Fed.R.Civ.P. 8(a) (2)). While the Court is required to accept as true well-pled factual allegations, it need not accept legal conclusions that are “couched as ... factual allegation[s],” Id. at 678 (quoting Bell Atlantic Corp v. Tw om bly , 550 U.S at 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (20 0 7)), or conclusory factual allegations without reference to actual events, United Black Firefighters v. Hirst, 60 4 F.2d 844, 847 (4th Cir. 1979). Sim ply stated, conclusory allegations are not the sam e as “well-pled” facts and are not entitled to the assum ption of truth. Iqbal, 556 U.S. at 679. In addition, “clearly baseless” claim s, such as those that are “fanciful,” “fantastic,” or “delusional,” m ay be dism issed as factually frivolous. Denton v. Hernandez, 50 4 U.S. 25, 32-33, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992). While the court is required to liberally construe a pro se com plaint, Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 10 81 (20 0 7), the pleading still m ust contain sufficient “well-pled” -8- factual allegations to support a valid legal cause of action. The court m ay not rewrite the com plaint to include claim s that were never presented, Parker v. Cham pion, 148 F.3d 1219, 1222 (10 th Cir. 1998), develop the plaintiff’s legal theories for him , Sm all v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or “conjure up questions never squarely presented” to the court. Beaudett v. City of Ham pton, 775 F.2d 1274, 1278 (4th Cir. 1985). IV. Plau s ibility Re vie w When assessing J acobus’s com plaint under the plausibility standard, the undersigned FIN D S that the com plaint fails to state a claim for which relief m ay be granted because it consists alm ost entirely of conclusory and clearly baseless allegations, rather than well-pled facts. In order to proceed with his lawsuit, J acobus m ust provide a factual bridge linking the events that he describes in his pleadings to wrongdoing by the FAA, which is the only nam ed defendant. A “sheer possibility” that the FAA has acted illegally is not enough to state a plausible entitlem ent to relief. Even when accepting as true J acobus’s assertions that private planes buzz his house and com m ercial and m ilitary aircraft and satellites repeatedly pass over his locations, these claim s do not give rise to a reasonable inference that the FAA is engaging in defam ation, harassm ent, or surveillance. Likewise, the m ere presence of aircraft and law enforcem ent personnel in J acobus’s vicinity does not, without m ore, lead to the conclusion that he is on a federal terrorist watchlist. A. FAA Su rve illan ce an d H aras s m e n t J acobus contends that his nightm are began after he had an argum ent with a pilot at a sm all private airport. He does not identify the pilot or provide any verifiable connection between the pilot and FAA officials. He accuses unnam ed “FAA offenders” of -9- spreading false rum ors about him but fails to provide any supporting details. He claims he is being tracked without a warrant and presum es that this is done through FAA “guidance system s,” but again offers no factual basis for that presum ption. He fails to subm it a rational explanation for how the FAA can track his m ovem ents, on a m inute-bym inute basis, without the use of a tracking device on his vehicle, in his hom e, or on his person; he does not claim to have found any such device. His allegations are broadly based on rum or, speculation, fantasy, and conjecture. Despite being told that the FAA is not the governm ent agency responsible for the terrorist watch list or terrorist surveillance activities, J acobus m aintains his com plaint against the FAA only; prim arily, on the basis that the FAA controls air traffic and J acobus believes that he is being subjected to constant aerial surveillance. J acobus’s contention that the FAA is responsible for the alleged surveillance and harassm ent is particularly im plausible when considering the FAA’s m ission and function.4 Contrary to J acobus’s apparent belief, the FAA is not a law enforcem ent agency and is not responsible for aviation security.5 The FAA has no authority to m onitor terrorist activity or conduct surveillance of suspected terrorists, and no corresponding budget or infrastructure. Sim ilarly, the FAA does not maintain its own terrorist watch list; thus, no process or m echanism exists for FAA officials to m aintain and update J acobus’s addresses and circulate them to private pilots. Moreover, while the FAA certifies, authorizes, and licenses drones, other aircraft, and pilots, the FAA is not authorized to 4 See http:/ / www.faa.com / about 5 See http:/ / www.faa.com/ about/ history/ historical_ perspective. In November 20 0 1, the Aviation and Transportation Security Act established the Transportation Security Adm inistration (TSA), the government agency charged with overseeing and prom oting aviation security. More than a decade ago, the FAA officially transferred all aviation security responsibilities to the TSA. - 10 - conduct aerial surveillance of individuals.6 Instead, the m ajor responsibilities of the FAA include prom oting civil aviation safety, operating a system of air traffic control and navigation for both civil and m ilitary aircraft, and developing and carrying out program s to control aircraft noise and other environm ental effects of civil aviation. Given these responsibilities, it is extrem ely unlikely that the FAA would facilitate “buzzing” or harass an individual by using com m ercial and m ilitary aircraft. J acobus’s contention that the FAA has allowed air traffic controllers, for m ore than three years, to continuously route and re-route air traffic over J acobus’s person, regardless of his whereabouts, the weather conditions, predeterm ined flight plans and patterns, m ilitary operations, air space congestion, the schedules of com m ercial airlines, and the safety of airline passengers, is utterly fantastical. Many of J acobus’s other allegations relating to FAA inspired surveillance and stalking are equally bizarre. For exam ple, J acobus claim s that a “lite up drone” was sent to fly over his cam psite when he was 10 0 m iles from hom e, (ECF No. 2 at 2); “drones are heard over [his] roof 24/ 7,” (ECF No. 8 at 1); his letters and em ails are continuously m onitored by unknown persons; he is “watched by the m inute by high powered cameras,” (ECF No. 18 at 2); satellites that can “read newspapers and ‘see’ through roofs and walls” are fixed on his hom e constantly, (ECF No. 19 at 1); air force jets are directed over every place he goes in Cabell County, appearing just m om ents after he arrives, (ECF No. 26); law enforcem ent officers take extrem e m easures to ensure that J acobus knows they are following him , (ECF No. 28 at 2), and this “stalking,” which J acobus concedes has likely 6 See 49 U.S.C. § 40 10 1, et seq., as am ended by the FAA Modernization and Reform Act of 20 12. See also Federal Aviation Adm inistration, FAA Makes Progress w ith UAS Integration. (“The FAA's sole mission and authority as it focuses on the integration of unm anned aircraft system s is safety.”). - 11 - cost m illions of dollars, is paid for by the Departm ent of Hom eland Security. Allegations that are “fanciful” or outlandish m ay be disregarded; a com plaint that relies on such allegations m ay be dism issed as factually frivolous. Denton v. Hernandez, 50 4 U.S. at 32-33. “[A] finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them .” Id.; see also Tooley v. Naplitano, 586 F.3d 10 0 6, 10 0 9-10 (D.C. Cir. 20 0 9) (claim s of constant surveillance by governm ent were “flim sier than doubtful or questionable ... essentially fictitious); Strong v. United States, 20 12 WL 20 2780 (S.D.Cal J an. 23, 20 12) (Plaintiff’s claim that he had been “labeled as an enem y of the United States” due to his drug addiction and was being surveilled by unm anned drones was dism issed frivolous); Raiford v. FBI, 20 10 WL 6737887 (D.S.C. Nov. 17, 20 10 ) (claim s of stalking by aircraft were frivolous); Marshall v. Green, 20 10 WL 1959514 (W.D. Ky. May 17, 20 10 ) (claim s of “bizarre conspiracy theories” related to governm ent stalking were frivolous). Here, the undersigned FIN D S that J acobus’s claim s of harassm ent, stalking, and surveillance by the FAA are unsupported, conclusory and factually frivolous; thus, his com plaint should be dism issed.7 B. FAA Re latio n to th e Te rro ris t W atch lis t J acobus’s claim that the FAA m ade an unsubstantiated report that led to his inclusion on a national terrorist watch list is sim ilarly im probable. While J acobus is 7 In Tooley v. Napolitano, 586 F.3d at 10 0 9-10 , the United States Circuit Court for the District of Colum bia addressed claim s sim ilar to those raised in this case. The Court determ ined that it lacked subject m atter jurisdiction over the com plaint because the allegations were “patently insubstantial,” and, thus, presented “no federal question suitable for decision.” Id. (quoting Best v. Kelly , 39 F.3d 328, 330 (D.C. Cir. 1994)). In reaching its conclusion, the Court comm ented on the both the bizarre m otivation alleged by the Plaintiff for the government’s undertaking of his surveillance and the incredible com bination of “sloth, fanaticism , insanity and technical genius” required to carry it out. - 12 - correct that such a watch list exists, he demonstrates no understanding of how the list is populated or used.8 In light of the purpose, function, and protocols of the Terrorist Watchlist, and given that the FAA has no authority or control over the list, J acobus’s claim s cannot withstand plausibility review and should be dism issed. In Septem ber 20 0 3, Hom eland Security Presidential Directive—6 (HSPD—6) was adopted with the express intent to “develop, integrate, and m aintain thorough, accurate, and current inform ation about individuals known or appropriately suspected to be or have been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism ” for screening, diplom atic, intelligence, law enforcem ent, m ilitary, im m igration, and other protective processes.9 HSPD—6 authorized the Attorney General to im plem ent an organization that would consolidate “the Governm ent’s approach to terrorism screening and provide for the appropriate and lawful use of Terrorist Inform ation in screening processes.” Id. As a result, the Terrorist Screening Center (TSC), a m ulti-agency organization, was established and placed under the adm inistration of the FBI. The TSC reviewed dozens of separate watch lists m aintained by various governm ent agencies and consolidated the lists into a single national “database of identifying inform ation about those known or reasonably suspected of being involved in terrorist 8 The undersigned takes judicial notice of inform ation contained in federal governm ental agency reports and postings relating to the purpose, creation, and function of the Terrorist Screening Database. See United States v. Chester, 628 F.3d 673, 692 (4th Cir. 20 10 ) (taking judicial notice of dom estic violence statistics contained in reports from the CDC, DOJ Bureau of J ustice Statistics, and the National Institute of J ustice); Fisher v. City of N orth My rtle Beach, 20 12 WL 3638776, at *1 n.2 (D.S.C. J ul. 26, 20 12) (“The court m ay take judicial notice of factual inform ation located in postings on governmental websites.”); see also Ibrahim v. Departm ent of Hom eland Sec., 669 F.3d 983, 988-90 (9th Cir. 20 12) (citing extensively to federal reports by the Departm ent of Hom eland Security, Departm ent of J ustice-Office of the Inspector General, Government Accountability Office, as well as statem ents m ade at congressional hearings); also Shearson v. Holder, --F.Supp.2d--, 20 11 WL 410 2152 at *15 (N.D.Ohio Sept. 9, 20 11) (Court m ay take judicial notice of and use public records in deciding a motion to dismiss); In re Katrina Canal Breaches Consol. Lit., 533 F.Supp.2d 615, 631-33 (E.D. La. 20 0 8). 9 Hom eland Security Presidential Directive 6 (HSPD-6), Integration and Use of Screening Inform ation (Sept. 16, 20 0 3), in Com pilation of Hom eland Security Presidential Directives, 31-32 (J anuary 20 0 8). - 13 - activity,” called the Terrorist Screening Database (TSDB) or Terrorist Watchlist.10 The TSC is the global authority for watchlisting and identifying known and suspected terrorists. It also acts as a central clearinghouse “where all law enforcem ent and governm ent screeners [can] access the best inform ation about a potential person of interest.”11 The inform ation entered into the TSDB is derived from two sources; the Terrorist Identities Datam art Environm ent (TIDE) database m aintained by the National Counterterrorism Center (NCTC) and the FBI’s Autom ated Case Support system .12 The TIDE database is the “central repository of inform ation on international terrorist identities”13 and is intended to be the only source for Watchlist inform ation relating to international terrorists. “The rem aining inform ation in the TSDB pertains solely to dom estic terrorism ,”14 a m atter that falls within the jurisdiction of the FBI. Inform ation pertaining to suspected dom estic terrorists is collected and stored by the FBI and “provided to the TSC directly from the FBI’s Autom ated Case Support system .”15 When an agency identifies an individual as a potential terrorist and seeks to have 10 Terrorist Screening Center, http:/ / www.fbi.gov/ about-us/ nsb/ tsc/ tsc_ m ission. 11 Terrorist Screening Center, http:/ / www.fbi.gov/ about-us/ nsb/ tsc. 12 Office of the Inspector General, Departm ent of Homeland Security, DHS’ Role in Nom inating Individuals for Inclusion on the Governm ent Watchlist and Its Efforts to Support Watchlist Maintenance (“DHS-OIG Report”) at 9 (September 20 11). 13 NCTC, TIDE FAQ’s at 1 (February 20 0 8); see also Sharing and Analyzing Inform ation to Prevent Terrorism : Hearing Before the H. Com m . On the J udiciary, 111th Cong. 21-22 (20 10 ) 14 Dom estic terrorism “m eans activities that (A) involve acts dangerous to hum an life that are a violation of the crim inal laws of the United States or of any State; (B) appear to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intim idation or coercion; or (iii) to affect the conduct of a government by m ass destruction, assassination, or kidnapping; and (C) occur prim arily within the territorial jurisdiction of the United States. 18 U.S.C. § 2331. 15 DHS-OIG Report at 9. - 14 - the individual included on the Terrorist Watchlist, the agency m ust nom inate the individual to the TSC.16 Ninety-five percent of all nom inations m ade to the TSC com e from the FBI, Departm ent of State, Defense Intelligence Agency, and Central Intelligence Agency,17 with “the vast m ajority of [the] watchlist inform ation [com ing] from the NCTC.”18 Nom inations from the Departm ent of Hom eland Security (DHS), which include all TSA nom inations, account for less than 1% of the nom inations subm itted to the TSDB. Significantly, there is no evidence that the FAA is either an originator or a nom inator of terrorist inform ation. Rather, when FAA staff “identifies information about known or suspected terrorists w ith pilot licenses, they notify the TSA.” (em phasis added).19 Thus, in the norm al course of business, the FAA’s involvem ent in populating the Terrorist Watchlist is lim ited to reporting pilots suspected of terrorist acts to the TSA. The TSA then forwards the report to the DHS, and the DHS m ay nom inate the pilots to the TSC for possible inclusion in the TSDB. Given this process, it is unlikely that the FAA gave J acobus’s nam e to the TSA for nom ination to the Terrorist Watchlist as J acobus is not a pilot. Notably, J acobus offers no factual support for his conclusory allegation that the FAA identified him as a potential terrorist threat to the TSA or TSC. J acobus’s belief that he was placed on the Watchlist without evidence or investigation likewise flies in the face of well-docum ented TSDB screening procedures. 16 Follow-up Audit of the Terrorist Screening Center, Audit Report 0 7-41, Departm ent of J ustice, Office of the Inspector General, Septem ber 20 0 7 (“20 0 7 DOJ Audit Report”). 17 The DHS Process for Nom inating Individuals to the Consolidated Terrorist Watchlist, Departm ent of Hom eland Security, Office of the Inspector General, OIG-0 8-29 (DHS-OIG-0 8-29), February 20 0 8 at 3. 18 U.S. Governm ent Accountability Office, Report to Congressional Requestors, Terrorist Watchlist: Routinely Assessing Im pacts of Agency Actions since the December 24, 20 0 9 Attem pted Attack Could Help Inform Future Efforts (“GAO Report”) at 6 (May 20 12). 19 DHS-OIG-0 8-29 at 9. - 15 - Contrary to J acobus’s supposition, “[a]ll nom inations from source agencies to the consolidated watchlist are vetted through the FBI or the ... NCTC.”20 According to a 20 0 7 Departm ent of J ustice Audit Report: Analysts at NCTC or the FBI review the nom ination inform ation and decide whether or not the person is an appropriate candidate for inclusion on the consolidated watchlist. This review includes an evaluation of the inform ation supporting the nom ination, an exam ination of the quality and accuracy of the identifying inform ation, and an exam ination of whether sufficient identifying inform ation is available. The FBI and NCTC are responsible for providing the TSC an unclassified subset of identifying inform ation for individuals known or suspected to be or have been involved in activities related to terrorism . Accordingly, the prerequisites for watchlisting dem and som e level of investigation by the NCTC or the FBI. TSC Director Tim othy Healy explained in a statem ent to the House J udiciary Com m ittee: First, the biographic inform ation associated with a nom ination m ust contain sufficient identifying data so that a person being screened can be m atched to or disassociated from a watchlisted terrorist. Second, the facts and circumstances pertaining to the nom ination m ust m eet the reasonable suspicion standard of review established by terrorist screening Presidential Directives. Reasonable suspicion requires articulable facts which, taken together with rational inferences, reasonably warrant the determ ination that an individual “is known or suspected to be or has been engaged in conduct constituting, in preparation for, in aid of or related to terrorism and terrorist activities.” The reasonable suspicion standard is based on the totality of the circum stances in order to account for the som etim es fragm entary nature of terrorist inform ation. Due weight m ust be given to the reasonable inferences that a person can draw from the available facts. Mere guesses or inarticulate “hunches” are not enough to constitute reasonable suspicion. A TSC interagency group com posed of m em bers from the intelligence and law enforcem ent com m unities issued clarifying guidance to the watchlisting com m unity in February 20 0 9.21 20 20 0 7 DOJ Audit Report. 21 Statem ent of Tim othy Healy, Director, Terrorist Screening Center, FBI, Before the House J udiciary Com m ittee, March 24, 20 10 (“Healy 20 10 Statement to J udiciary Com m ittee”); See also Latif v.Holder, 686 F.3d 1122, 1125 n.2 (9th Cir. 20 12). - 16 - Accordingly, J acobus’s unsupported contention that he was placed on the Terrorist Watchlist without an FBI investigation so dram atically varies from the established protocols that it is im plausible. Finally, although J acobus claim s to be the subject of egregious surveillance and harassm ent operations, none of the facts he alleges are consistent with having been placed on the Watchlist. Watchlist inform ation is not reviewed by governm ent agencies in order to identify individuals for the initiation of surveillance. Instead, the TSDB is a searchable database designed to respond to specific queries by certain screening agencies seeking to confirm whether or not particular individuals have previously been suspected of terrorist activity. The TSC distributes inform ation from the TSDB only “to frontline screening agencies that conform with the m issions and legal authorities under which those agencies operate.”22 “To support agency screening processes, TSC sends applicable records from the TSDB to screening and law enforcem ent agency system s based on the agency’s m ission responsibilities and other factors.”23 The four prim ary U.S. Governm ent System s supported by the TSDB include: (1) the Departm ent of State’s Consular Lookout and Support System for passport and visa screening; (2) DHS’s TECS system for border and port of entry screening; (3) No Fly and Selectee Lists used by TSA for airline passenger screening; and (4) the FBI’s NCIC Known or Suspected Terrorist File (form erly the Violent Gang/ Terrorist Organization File (VGTOF)) for domestic law enforcem ent screening.24 Each system has different criteria for inclusion, which are “tailored to the 22 William J . Krouse & Bart Elias, Congressional Research Service, Terrorist Watchlist Checks and Air Passenger Prescreening (“CRS Report”), at 4 (Dec. 30 , 20 0 9), 23 GAO Report at 39-40 . 24 Healy 20 10 Statem ent to J udiciary Comm ittee. - 17 - m ission, legal authorities, and inform ation technology requirem ents of the departm ent or agency that m aintains the system . Accordingly, each of these system s contains a different subset of data from TSDB.”25 For instance, for aviation security, the TSA uses the No-Fly and Selectee Lists to screen airline passengers. The No-Fly List is a subset of the TSDB that includes individuals who are prohibited from receiving a boarding pass for any flight to, from , over, or within the United States. The Selectee List, a different subset of the TSDB, identifies individuals flagged to undergo enhanced or secondary security screenings before their eligibility to receive a boarding pass is determ ined.26 As stated supra, inform ation from the Watchlist is also available electronically to federal, state, county, and local law enforcem ent agencies through various databases, including NCIC, Law Enforcement Online (LEO), Regional Inform ation Sharing System (RISS), and the Hom eland Security State and Local Intelligence Com m unity of Interest (HS-SLIC). The TSC provides training to police dispatchers and law enforcem ent officers on how to prom ptly notify TSC of encounters with individuals on the Terrorist Watchlist.27 In a Novem ber 20 0 7 statem ent before the Com m ittee on Hom eland Security, U.S. House of Representatives, Glenn A. Fine, Inspector General of the U.S. Departm ent of J ustice explained how terrorist inform ation exported from the TSDB is used by law enforcem ent personnel as part of their regular duties, stating: When a nam e appears to be a m atch against the terrorist watchlist, requestors receive a return m essage through their database inform ing them of the prelim inary m atch and directing them to call the TSC. When a call is 25 Healy 20 10 Statem ent to J udiciary Comm ittee. 26 See N o-Fly Report, DHS Privacy Office, April 27, 20 0 6. 27 Statem ent of Tim othy J . Healy, Director, Terrorist Screening Center Before the Senate Hom eland Security and Governmental Affairs Com m ittee, Decem ber 9, 20 0 9 (“Healy 20 0 9 Statement to Hom eland Security Comm ittee”). - 18 - received, TSC staff in the 24-hour call center assist in confirm ing the subject’s identity. Those m atches m ay be actual watchlist subjects, individuals m isidentified to a terrorist identity, or som eone m istakenly included on the watchlist. In responding to such a call, the TSC Call center staff search the consolidated database and other databases to determ ine if a terrorist watchlist identity m atch exists. Records within the consolidated watchlist database also contain inform ation about the law enforcem ent action to be taken when encountering the individual. This inform ation is conveyed through “handling codes or instructions ... the FBI’s handling codes are based on whether there is an active arrest warrant, a basis to detain the individual, or an interest in obtaining additional intelligence inform ation regarding the individual. Notwithstanding law enforcem ent’s use of the Watchlist, nam es or other identifying inform ation contained in the TSDB are not routinely distributed or otherwise m ade available to federal, state, or local law enforcem ent agencies for generalized surveillance. Bearing in m ind this fram ework, it is clear that J acobus provides no facts upon which the Court can reasonably infer that (1) the FAA nom inated him for inclusion on the Terrorist Watchlist; (2) his inform ation is actually in the database; or (3) the harassm ent he claim s to suffer is a result of his being watchlisted. This is true for several reasons. First, the alleged justification for his inclusion in the database does not pass m uster. Even if J acobus argued with a private pilot over the safety of his take-offs and threatened the airport owner over the pilot’s behavior, these acts, standing alone, do not constitute dom estic terrorism or m ake J acobus suitable for inclusion on a watch list that is reserved for international and dom estic terrorists. Second, the FAA has historically played an insignificant role in both the population and use of the Terrorist Watchlist. To have nom inated J acobus, or even suggested his nam e to the TSA, would have been a highly unusual action by the agency. Moreover, if J acobus’s nam e had been nom inated by the - 19 - FAA or TSA, the FBI would have been required to investigate the circum stances underlying the nom ination and confirm that a reasonable suspicion existed for labeling J acobus a dom estic terrorist. Third, J acobus fails to describe any circum stance that would tend to suggest that his nam e is on the list. The Watchlist is prim arily used for screening purposes. In order for screening to occur, an individual m ust engage in activity that elicits the need to screen. In this case, J acobus denies any encounters with the FBI and alleges no contacts with law enforcem ent, such as traffic stops or arrests, which m ight trigger the screening of his nam e. He m akes no claim that he was ever prohibited from boarding an airplane, subjected to an unusually intense security screening at an airport, detained at a U.S. border, or denied a passport or visa. Thus, J acobus fails to offer even a scintilla of evidence that would lend credence to his theory that he is on the Watchlist. Without som e tangible basis to conclude that J acobus was nom inated or suggested by the FAA for inclusion and is, in fact, on the Terrorist Watchlist, J acobus is also unable to sustain this claim against the FAA. Consequently, the undersigned FIN D S that J acobus fails to state a claim that is facially plausible against the FAA related to the Terrorist Watchlist and his com plaint should be dism issed. V. Oth e r Gro u n d s fo r D is m is s al In addition to the lack of facial plausibility, J acobus’s com plaint should be dism issed because (1) he alleges causes of action that are unavailable to him ; (2) he has nam ed the wrong party as the defendant; and (3) he seeks relief that cannot be granted. A. Claim s fo r Mo n e y D am age s J acobus seeks m oney dam ages for the following tortious activity: “invasion of privacy, stalking, harassm ent, defam ation,” and negligence as a result of the FAA - 20 - reporting him as a terrorist suspect without first conducting an investigation. (ECF No. 18 at 3). According to J acobus, he has standing to pursue these claim s against the FAA under the Federal Torts Claim Act (FTCA). (ECF No. 18 at 2). In addition, J acobus seeks dam ages for alleged violations of his constitutional rights by FAA em ployees under Bivens v. Six Unknow n Nam ed Agents of the Federal Bureau of Narcotics, 40 3 U.S. 388, 395 – 97, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). 1. Fe d e r a l To r t s Cla im Act Generally, the United States and its agencies are exem pt from suit, absent a waiver of sovereign im m unity. Through the FTCA, 28 U.S.C. §§ 1346(b), 2671-2680 , the United States has waived its im m unity against claim s “for m oney dam ages ... for injury or loss of property ... caused by the negligent or wrongful act or om ission of any em ployee of the Governm ent while acting within the scope of his office or employm ent,” 28 U.S.C. § 1346(b)(1). The FTCA allows the United States to be sued “in the sam e m anner and to the sam e extent as a private individual under like circum stances,” 28 U.S.C. § 2674, and is the exclusive m oney rem edy for non-constitutional torts com m itted by federal em ployees acting within the scope of their federal em ploym ent. 28 U.S.C. § 2679. The only proper defendant in an FTCA claim is the United States. 28 U.S.C. § 2674; W ebb v. Ham idullah, 281 Fed. Appx. 159, 161 n.4 (4th Cir. 20 0 8). Before filing a FTCA com plaint in court, a claim ant must exhaust his adm inistrative rem edies by “present[ing] his claim to the appropriate adm inistrative agency for determ ination.” Ahm ed v. United States, 30 F.3d 514, 516 (4th Cir. 1994) (citing 28 U.S.C. § 2675(a)). Pursuant to the applicable federal regulations, a claim is “deem ed to have been presented when a Federal agency receives from a claim ant ... an executed Standard Form 95 or other written notification of an incident, accom panied by a - 21 - claim for m oney dam ages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident.” 28 C.F.R. § 14.2(a); see also Ahm ed, 30 F.3d at 517 (“[I]n order to present a personal injury claim to the appropriate adm inistrative agency, the claim ant m ust present it to the agency in writing by m eans of an SF 95 or an equivalent; the writing m ust include a claim for m oney dam ages in a sum certain; if the claim ant is represented, the representative's authorization m ust be dem onstrated; and these m atters m ust be accom plished within two years of the incident.”). “Sovereign im m unity can be waived only by the sovereign; the circum stances of its waiver m ust be scrupulously observed and not expanded by the courts.” Kokotis v. U.S. Postal Service, 223 F.3d 275 (4th Cir. 20 0 0 ) (citing United States v. Kubrick, 444 U.S. 111, 117-18, 10 0 S.Ct. 352, 62 L.Ed.2d 259 (1979)). Where a plaintiff fails to exhaust his claim adm inistratively by com plying with the m andatory prerequisites, the district court m ust dism iss the lawsuit for lack of jurisdiction. Henderson v. United States, 785 F.2d 121, 123 (4th Cir. 1986). (“[T]he requirem ent of filing an adm inistrative claim is jurisdictional and m ay not be waived.”); See also Xiteng Liu v. U.S. Citizenship and Im m igration Services, Texas Service Center, 317 Fed.Appx. 361, 362 (4th Cir. 20 0 9) (citing Ply ler v. United States, 90 0 F.2d 41, 42 (4th Cir. 1990 ). Moreover, the Fourth Circuit has declined to read a futility exception into the exhaustion requirem ent of the FTCA. Xiteng Liu, 317 Fed.Appx. at 362; How ard v. Milam , 1990 WL 7430 9 at *4 (4th Cir. May 10 , 1990 ). In the present case, J acobus has failed to exhaust his adm inistrative rem edies. J acobus adm ittedly has not subm itted a Form SF 95 and presents no evidence of having subm itted a reasonable equivalent. J acobus erroneously argues that “the SF 95 can be waived” and that “the U.S. Attorney could do another one day ‘probe’ at the local airport - 22 - and find the sam e thing again, faster than m aking Plaintiff file an SF-95 to get what’s already known,” (ECF No. 18 at 1, 3), but states no legitim ate ground for excusing his failure to com ply with the statutory m andates. Even if J acobus had exhausted his adm inistrative rem edies, m ost of his FTCA claim s would likely still fail. “[F]or m any torts the United States has not waived its sovereign im m unity through the Tort Claims act.” Maron v. United States, 126 F.3d 317, 321 (4th Cir. 1997); see 28 U.S.C. § 2680 . Specifically, under the “intentional tort exception,” plaintiffs are generally barred from raising claim s “arising out of assault, battery, false im prisonm ent, false arrest, malicious prosecution, abuse of process, libel, slander, m isrepresentation, deceit, or interference with contract rights.” 28 U.S.C. § 2680 (h). Likewise, under the “discretionary function exception,” the FTCA does not perm it suits “based upon the exercise or perform ance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an em ployee of the Governm ent, whether or not the discretion involved be abused.” 28 U.S.C. § 2680 (a). As a result of these exceptions, J acobus’s “defam ation” claim is clearly precluded and his “harassm ent” and “stalking” claim s are tenuous at best. For these reasons, the undersigned FIN D S that J acobus’s non-constitutional torts asserted under the FTCA should be dism issed.28 2 . Biv e n s Act io n A Bivens action entitles a plaintiff “to recover m oney dam ages for injuries suffered as a result of [a federal em ployee’s] violation” of certain constitutional rights. Bivens v. Six Unknow n Nam ed Agents of Fed. Bureau of Narcotics, 40 3 U.S. 388, 396 (1971). A 28 J acobus also fails to name the proper party under the FTCA. Despite having been advised of the FTCA’s requirem ent that the United States be the nam ed defendant, and having been given the opportunity to am end his com plaint, J acobus has not corrected the error. - 23 - claim under Bivens m ust be asserted against the federal actor in his individual capacity and m ay not be m aintained against the United States, federal agencies, or public officials acting in their official capacities. See FDIC v . Mey er, 510 U.S. 471, 475, 484– 86, 114 S.Ct. 996, 127 L.Ed.2d 30 8 (1994); Reingold v. Evers, 187 F.3d 348, 355 n. 7 (4th Cir.1999). In the present case, J acobus sues only Michael Huerta in his official capacity as Adm inistrator of the FAA. He does not allege that Mr. Huerta violated his rights or was personally involved in any of the challenged activities. J acobus claim s that a few “FAA offenders” have provided his nam e and location to General Aviation pilots, yet J acobus fails to identify those individuals in any m eaningful way and m akes no effort to join them as defendants. J acobus does seek to am end his com plaint and add the “high altitude control center boss” in the Indianapolis radar center for being “in charge of routing” Air Force jets over or near his hom e and “every place [he] goes in Cabell County;” however, J acobus implicates the control center boss in his supervisory capacity, rather than as an individual directly involved in com m itting the m isdeeds. To the extent that J acobus seeks to hold the control center boss liable under a theory of respondeat superior, such a claim is not available under Bivens. Ashcroft, 556 U.S. at 677. On the other hand, if J acobus suggests that the control center boss is liable for the injuries inflicted by his subordinates on the basis of “supervisory indifference,” then J acobus m ust allege and ultim ately establish the presence of three elem ents: (1) the supervisor had actual or constructive knowledge that his em ployee was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to people like the plaintiff; (2) the supervisor's response to the actions of the em ployee was so inadequate as to constitute deliberate indifference or tacit authorization of the conduct; and (3) an “affirm ative causal link” exists between the supervisor's inaction and the alleged constitutional injury. Shaw v. - 24 - Stroud, 13 F.3d 791, 799 (4th Cir.1994). Ignoring for a m om ent the sheer logistical im possibility of the schem e described by J acobus, he does not m ake a prim a facie showing of supervisory liability. J acobus does not allege that the control center boss had actual or constructive knowledge that his subordinates were stalking and harassing J acobus by routing and re-routing aircraft over him , or that the boss was deliberately indifferent to the conduct. Even m ore fundam ental to the analysis, J acobus fails to identify a constitutional right that is violated by the alleged routing of aircraft over his locations. See, e.g., Vaziri v. Central Intelligence Agency , 20 10 WL 1558942 (E.D.Ky April 19, 20 10 ) (claim s of invasion of privacy, harassm ent, stalking, intimidation with intent to cause em otional distress are “com m on State offense or torts, not federally based claim s.”). In the absence of behavior by a federal agent that rises to the level of a violation of a constitutional right, J acobus cannot m aintain a Bivens action. Therefore, the undersigned FIN D S that J acobus fails to state a claim under Bivens against Michael Huerta in his official capacity and fails to allege sufficient facts to join the Indianapolis radar control center boss as an individual defendant. 3 . Alle g e d Vio la t io n s o f 18 U .S.C. § 2 2 6 1a ( St a lk in g ) J acobus also contends that the FAA has violated 18 U.S.C. § 2261A,29 a federal crim inal statute that prohibits and punishes interstate stalking. Kruska v. Perverted Justice Foundation Incorporated Org., 20 10 WL 4791666, at *8 (D. Ariz. Nov. 18, 20 10 ); Tom el v. Ross, 20 0 9 WL 3824742, at *5 (D. HI Nov. 16, 20 0 9). “Possible punishm ents for violations of § 2261A(2), as outlined in 18 U.S.C. § 2261(b), include prison tim e, a m onetary fine, or both.” Kruska, 20 10 WL 4791666, at *8; Tom el, 20 0 9 WL 3824742, at 29 Throughout his pleadings, J acobus incorrectly cites to 18 U.S.C. § 2261, which relates to interstate dom estic violence. (ECF Nos. 2, 8, 18 and 19). However, it is clear from the context that he intends to refer to 18 U.S.C. § 2261A. - 25 - *5. While “a crim inal statute m ay provide an implied private right of action if Congress so intended in enacting the crim inal state,” Fox v. Tippetts, 20 0 9 WL 3790 173, at *3-4 (W.D. La. Nov. 10 , 20 0 9) (quoting Thom pson v. Thom pson, 484 U.S. 174, 179, 10 8 S.Ct. 513, 98 L.Ed.2d 512 (1988)), nothing in 18 U.S.C. § 2261A suggests that it is m ore than a “bare crim inal statute.” Fox, 20 0 9 WL 3790 173, at *3-4 (quoting Cort v. Ash, 422 U.S. 66, 79, 95 S.Ct. 20 80 , 45 L.Ed.2d 26 (1975)). Therefore, J acobus has no cause of action under § 18 U.S.C. § 2261A. See Dorr v. Ford Motor Co., 20 11 WL 5857886, at *9; Kruska, 20 10 WL 4791666, at *8; Tom el, 20 0 9 WL 3824742, at *5; Haffke v. Discover Financial Services, 20 10 WL 5572765, at *1 (E.D. Tex. Dec. 17, 20 10 ). Therefore, the undersigned FIN D S that J acobus fails to state a claim under 18 U.S.C. § 2261A. B. Claim s fo r Pro s p e ctive Re lie f J acobus’s claim s for prospective relief also m ust fail because he has not dem onstrated that action or inaction on the part of the FAA violates or will violate his rights under the constitution, laws, or treaties of the United States. Under Bivens, J acobus must show a constitutional violation by the FAA, which he has not done. Assum ing, arguendo, that a few “FAA offenders” notified private pilots of J acobus’s addresses, conducted aerial surveillance, or routed aircraft over his locations, J acobus fails to dem onstrate how those actions violate his Fourth, Fifth, Ninth or Fourteenth Am endm ent rights. J acobus does not allege that these acts have deprived him of his life, liberty, or property; they do not constitute unreasonable searches and seizures, see California v. Greenw ood, 486 U.S. 35, 42 10 8 S.Ct. 1625, 10 0 L.Ed.2d 30 (1988) (citing California v. Ciraolo, 476 U.S. 20 7, 213-14, 10 6 S.Ct. 180 9, 90 L.Ed.2d 210 (1986)); and they do not unequivocally im plicate any other constitutional guarantee. - 26 - In regard to J acobus’s com plaints regarding the Terrorist Watchlist, he has sim ply sued the wrong party. The FAA does not m aintain or control the list, and either the FBI or NCTC is responsible for conducting the vetting process for each nom inee to the list. Ultim ately, the TSC m akes the final decision on whether an individual’s inform ation is entered into the TSDB and only the TSC can rem ove the inform ation. See Latif v. Holder, 686 F.3d 1122, 1128 (9th Cir. 20 12). If state or local law enforcem ent officers choose to follow J acobus, the FAA has no authority to stop them . Consequently, even if J acobus is entitled to the prospective relief he seeks, the FAA is not capable of providing it. Sim ilarly, to pursue a claim under the Adm inistrative Procedures Act (APA), 5 U.S.C. §§ 70 1-0 6, J acobus m ust establish that he is “a person suffering legal wrong because of agency action,30 or adversely affected or aggrieved by agency action within the m eaning of a relevant statute;” an d the agency action is either m ade reviewable by statute or is a final agency action for which there is no other adequate rem edy in a court. 5 U.S.C. § 70 4. Agency action that does not fall within one of these two categories is not reviewable by the district court under the APA. Invention Subm ission Corp. v. Rogan, 357 F.3d 452, 459-60 (4th Cir.20 0 4). J acobus accuses certain “FAA offenders” of harassing and surveilling him , but he m akes no claim that a specific action by the FAA sanctions or authorizes the alleged harassm ent and surveillance. In any event, J acobus m akes no showing that he has exhausted his rem edies with the FAA and that he has no other adequate rem edy at law. To the contrary, if J acobus filed a properly styled com plaint, which included well-pled facts showing harassm ent or other intentional wrongdoing by FAA em ployees, J acobus could seek relief under the FTCA or Bivens. 30 The APA defines “agency action” as “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” See 5 U.S.C. § 551(13). - 27 - Moreover, even if the FAA nom inated J acobus for inclusion on the Terrorist Watchlist, that nom ination does not constitute a final agency action. See Dalton v. Specter, 511 U.S. 462, 468-69, 114 S.Ct. 1719, 128 L.Ed.2d 497 (1994). Any nom ination to the list by the FAA requires vetting by the FBI or NCTC before subm ission to the TSC. Ultim ately, the FBI, NCTC, or TSC can reject the nom ination. Thus, the final action in regard to populating the TSDB rests with an agency other than the FAA. For these reasons, the undersigned FIN D S that J acobus fails to state a claim against the FAA for prospective relief; therefore, his com plaint should be dism issed. VI. Pro p o s al an d Re co m m e n d atio n s For the reasons set forth above, the undersigned respectfully PROPOSES that the presiding United States District J udge accept and adopt the findings herein and RECOMMEN D S that: 1. Plaintiff’s Petitions for Injunction (ECF Nos. 18, 24) be D EN IED ; 2. Plaintiff’s Petition to Add a Defendant (ECF No. 26) be D EN IED ; 3. Defendant’s Renewed Motion to Dism iss be GRAN TED (ECF No. 25); and 4. Plaintiff's Com plaint and Am ended Com plaint (ECF Nos. 2, 23) be D ISMISSED , w ith p re ju d ice , for failure to state a claim . The parties are notified that this “Proposed Findings and Recom m endations” is hereby FILED , and a copy will be subm itted to the Honorable Robert C. Cham bers, United States District J udge. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Federal Rules of Civil Procedure 6(d) and 72(b), the parties shall have fourteen days (filing of objections) and three days (m ailing) from the date of filing this “Proposed Findings and Recom m endations” within which to file with the Clerk of this Court, specific written objections, identifying the portions of the “Proposed - 28 - Findings and Recom m endations” to which objection is m ade and the basis of such objection. Extension of this time period may be granted by the presiding District J udge for good cause shown. Failure to file written objections as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. Sny der v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thom as v. Arn, 474 U.S. 140 , 10 6 S.Ct. 466, 88 L.Ed.2d 435 (1985); W right v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v . Schronce, 727 F.2d 91 (4th Cir. 1984). Copies of such objections shall be provided to the opposing parties, J udge Cham bers, and Magistrate J udge Eifert. The Clerk is instructed to provide a copy of this “Proposed Findings and Recom m endations” to the Plaintiff and counsel of record. FILED : February 22, 20 13. - 29 -