UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________ ) ANTHONY SHAFFER, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 06-271 (GK) ) DEFENSE INTELLIGENCE AGENCY, ) et al., ) ) Defendants. ) ______________________________)

MEMORANDUM OPINION

Plaintiffs Anthony Shaffer (“Shaffer”) and J.D. Smith

(“Smith”) bring this action against Defendants the Defense

Intelligence Agency (“DIA”); the Department of Defense (“DoD”); the

Department of the Army (“Army”); George Peirce, General Counsel of

DIA; Robert Berry, Jr., Principal Deputy General Counsel of the

DIA; William J. Haynes, II, General Counsel of the DoD; and Tom

Taylor, Senior Deputy General Counsel of the Army,1 pursuant to the

Federal Declaratory Judgment Act,

, the

Administrative Procedure Act,

et seq., the All Writs

Act,

, and the First Amendment of the U.S.

Constitution. Plaintiffs seek declaratory and injunctive relief.

1 The Complaint identifies Tom Taylor as Senior Deputy General Counsel. In its papers, the Government refers to Taylor as General Counsel of the Army. On August 10, 2006, Plaintiffs’ claims against Defendants

Peirce and Berry in their individual capacities were dismissed.

This matter is before the Court on Defendants’ Motion to

Dismiss all remaining claims [Dkt. No. 13]. Upon consideration of

the Motion, Opposition, Reply, the entire record herein, and for

the reasons set forth below, Defendants’ Motion to Dismiss is

granted in part and denied in part.

I. Background2

Plaintiffs Anthony Shaffer and J.D. Smith were involved in a

DoD project known as “ABLE DANGER.” Plaintiff Shaffer worked on

the project as a civilian employee of the DIA, and was also a

Lieutenant Colonel in the U.S. Army Reserves. Plaintiff Smith was

a civilian defense contractor. Plaintiff Smith’s work on ABLE

DANGER was unclassified. Defs.’ Mot., Exh. C.

ABLE DANGER was a U.S. Special Operations Command military

intelligence program. Its mission was to develop an Information

Operations Campaign Plan against transnational terrorism.

2 For purposes of ruling on a motion to dismiss for lack of subject matter jurisdiction, the factual allegations of the complaint are generally presumed to be true. See Phoenix Consulting, Inc. v. Republic of Angola,

(D.C. Cir. 2000). Although a court may resolve a motion to dismiss for lack of subject matter jurisdiction “on the complaint standing alone,” a court may also consider materials outside the pleadings. Coal. for Underground Expansion v. Mineta,

(D.C. Cir. 2003). Therefore, the facts set forth herein are taken from the First Amended Complaint, unless otherwise noted.

2 At an unspecified date prior to September 11, 2001, ABLE

DANGER identified four individuals as possible members of an Al

Qaeda cell that was linked to the 1993 bombing of the World Trade

Center. One of these four individuals was Mohamed Atta.

By the spring of 2001, information collected as part of the

ABLE DANGER program was destroyed, and the program was shut down.

The DIA destroyed files maintained by Plaintiff Shaffer in his DIA

work space, including some files related to ABLE DANGER.

On September 11, 2001, four commercial planes were hijacked.

Two planes were flown into the World Trade Center towers, one was

flown into the Pentagon, and one crashed in Pennsylvania. In

total, nearly 3,000 people were killed. The hijackers included

Mohamed Atta and the three other individuals identified by ABLE

DANGER.

In the wake of the events of September 11, 2001, the 9/11

Commission (“Commission”) was formed. In October 2003, Plaintiff

Shaffer discussed ABLE DANGER with Philip Zelikow, the Commission’s

Executive Director, when both were in Bagram, Afghanistan.3 He

informed Zelikow that ABLE DANGER had identified individuals who

were later learned to be participants in the September 11

hijacking, including Atta.

3 The parties do not indicate why either person was in Bagram at that time.

3 In response, Zelikow told Plaintiff Shaffer that this

information was “very important,” provided Plaintiff Shaffer with

his business card, and asked him to contact the Commission upon his

return to the United States. When Plaintiff Shaffer returned to

the United States in January 2004, he contacted the Commission.

The Commission informed Shaffer that it possessed all the

information on ABLE DANGER that it needed.

The Commission also received information about ABLE DANGER

from Navy Captain Scott Phillpott. In July 2004, Phillpott met

with staff members from the Commission and informed them that ABLE

DANGER had identified some of the hijackers prior to September 11,

2001.

Despite Plaintiff Shaffer’s conversation with Zelikow and

Phillpott’s meeting with Commission staff, the Commission concluded

that U.S. intelligence agencies had not identified Atta as a

potential terrorist prior to September 11. Two of the members of

the Commission claim that they received no information about ABLE

DANGER. The Commission’s final report does not mention ABLE

DANGER.

After the Commission released its final report, members of the

media inquired about the Commission’s investigation of ABLE DANGER.

In response, Thomas Kean, the Commission’s Chair, and Lee Hamilton,

its Vice Chair, issued a statement claiming that the Commission had

been aware of ABLE DANGER but that it had no information that ABLE

4 DANGER identified any of the hijackers prior to September 11, 2001.

The statement also confirmed that Phillpott had met with Commission

staff but noted that this meeting had occurred only days before the

final report was scheduled to be released.

Since the spring of 2005, Plaintiff Shaffer has briefed

Congressional committees and their staff members on ABLE DANGER.

He has also described retaliation that he suffered from the DIA

because of his discussions about ABLE DANGER.

In a letter dated August 30, 2005, Plaintiff Shaffer’s

counsel, Mark Zaid, requested that Defendants permit him and his

law partner, Roy Krieger, to discuss classified information

regarding ABLE DANGER with their clients. In a letter dated August

31, 2005, counsel repeated the same request with regard to an

invitation from the Senate Judiciary Committee to present

testimony.

In a letter dated September 16, 2005, Defendants rejected the

requests. Pls.’ Opp’n, Exh. 5. The letter stated that Plaintiff

Shaffer had not demonstrated that access to classified information

was “necessary” for counsel to “adequately” represent his client.

It also stated that due to counsel’s “abusive” past behavior

(including conduct described as a “‘Rambo’ litigation tactic” by

one judge in this District, Assassination Archives & Research Ctr.

v. CIA,

(D.D.C. 1999) (Lamberth, J.)),

allowing him to access classified information “would not represent

5 an acceptable security risk.”

Based on these two rationales,

the letter concluded that denying Plaintiffs’ counsel’s request

would be consistent with DoD regulations.

Plaintiffs Shaffer and Smith were scheduled to testify about

ABLE DANGER before the Senate Judiciary Committee in September

2005. Shaffer submitted his proposed testimony to the DoD for

classification review. The DoD never responded, but Defendants

claimed that all information was classified and refused to permit

the testimony. On September 21, 2005, Plaintiffs’ counsel

testified in lieu of Plaintiffs.

On an unspecified date prior to this testimony, the DIA

revoked Plaintiff Shaffer’s security clearance. It alleged that he

had engaged in criminal conduct and that he was not credible.

In October 2005, the DoD Office of Inspector General (“OIG”)

initiated an investigation into two allegations: (1) that the

government improperly handled information gathered under ABLE

DANGER, and (2) that the DIA retaliated against Plaintiff Shaffer.

Defs.’ Mot., Exh. I.

Between October 2005 and April 2006, OIG investigators

conducted more than seventy interviews.

Plaintiff Shaffer was

interviewed twice, both times in the presence of his counsel.

Neither interview involved classified information.

Plaintiff

Smith was interviewed once. No classified information was

discussed, and his counsel was present at the interview.

The

6 supervisor of the investigation has stated that any future

interviews with Plaintiffs will not discuss classified information.

In a letter dated February 2, 2006, counsel again requested

that Plaintiffs be permitted to share classified information with

counsel. In a letter dated February 14, 2006, Defendants again

rejected the request.

On February 15, 2006, Plaintiffs testified before two

subcommittees of the House Armed Services Committee. The hearing

included an open session and a closed session. During the open

session, Plaintiff Shaffer noted that he would not be permitted

counsel in the closed session. He stated that testifying without

counsel would place him in legal jeopardy. Prior to the start of

the closed hearing, Plaintiff Smith was informed that he would not

be permitted to testify during the closed session. Neither

Plaintiff attended the closed portion of the hearing.

II. Standard of Review

To survive a motion to dismiss, a plaintiff need only plead

“enough facts to state a claim to relief that is plausible on its

face” and to “nudge[ ] [his or her] claims across the line from

conceivable to plausible.” Bell Atl. Corp. v. Twombly, __ U.S. __,

,

(2007). “[O]nce a claim has

been stated adequately, it may be supported by showing any set of

7 facts consistent with the allegations in the complaint.”

.

Under the Twombly standard, a “court deciding a motion to

dismiss must not make any judgment about the probability of the

plaintiff's success . . . must assume all the allegations in the

complaint are true (even if doubtful in fact) . . . [and] must give

the plaintiff the benefit of all reasonable inferences derived from

the facts alleged.” Aktieselskabet AF 21. November 2001 v. Fame

Jeans Inc.,

(D.C. Cir. 2008) (internal quotation

marks and citations omitted).

III. Analysis

A. Defendants Department of the Army and Tom Taylor Were Not Properly Served.

In their Motion, two Defendants, the Army and its Senior

Deputy General Counsel Tom Taylor, allege that they were not

properly served. Defendants filed their Motion on April 7, 2006.

After Defendants filed their Motion and before Plaintiffs filed

their Opposition on May 12, 2006, Plaintiffs served several

Defendants. See Pls.’ Reply at 12. However, Plaintiff has offered

no proof, and the official docket contains no proof, that either

the Army or Senior Deputy General Counsel Taylor were ever served,

no less served within the 120 days from the filing of the Complaint

allowed under Fed. R. Civ. P. 4(m).

Consequently, Defendants Army and Taylor will be dismissed.

8 B. Plaintiff Shaffer’s Claims Regarding Future Congressional Testimony Are Not Ripe; Neither the Standing Doctrine Nor the Ripeness Doctrine Bars Him from Pursuing His Claims with Respect to the OIG Investigation and the Attorney- Client Relationship.

Article III of the U.S. Constitution “confines the federal

courts to adjudicating actual ‘cases’ and ‘controversies.’” Allen

v. Wright,

(1984). Because standing and ripeness

are two elements of the case or controversy requirement, a court

does not have subject matter jurisdiction if a plaintiff lacks

standing or if the case is not ripe. See In re Navy Chaplaincy,

(D.C. Cir. 2008) (“One of the controlling

elements in the definition of a case or controversy under Article

III is standing.”) (quoting Hein v. Freedom From Religion Found.,

Inc., __ U.S. __ ,

,

(2007);

see Boston & Maine Corp. v. Surface Transp. Bd.,

(D.C. Cir. 2004) (when a plaintiff lacks standing, the court lacks

subject matter jurisdiction); see Exxon Mobil Corp. v. Fed. Energy

Regulatory Comm’n,

(D.C. Cir. 2007) (ripeness is

a question of subject matter jurisdiction).

To establish standing, a plaintiff must prove that she has

suffered an “injury in fact,” that the injury is “fairly traceable

to the challenged action of the defendant,” and that it is “likely”

that the injury will be “redressed by a favorable decision.” Lujan

v. Defenders of Wildlife,

-61 (1992) (internal

punctuation and citations omitted).

9 A plaintiff demonstrates that he suffered an “injury in fact”

when he shows that he suffered “an invasion of a legally protected

interest” that was both “concrete and particularized” and “actual

or imminent.” Id. at 560 (internal citations omitted). An injury

that is “conjectural or hypothetical,” “remote,” or “speculative”

is not sufficient. Id. (internal punctuation and citations

omitted); see also In re Navy Chaplaincy,

.

The ripeness doctrine “prevent[s] the courts, through

avoidance of premature adjudication, from entangling themselves in

abstract disagreements.” Abbott Labs. v. Gardner,

(1967). A case is not ripe for adjudication when it “rests

upon contingent future events that may not occur as anticipated, or

indeed may not occur at all.” Texas v. United States,

(1998) (internal quotations and citations omitted).

In determining whether a case is ripe, a court must weigh two

considerations: the “fitness of the issues for judicial decision

and the hardship to the parties of withholding court

consideration.” Exxon Mobil Corp.,

(quoting Abbott

Labs.,

). The first prong requires a court to

consider “any institutional interests that either the court or the

agency may have for postponing review.” State Farm Mut. Auto. Ins.

Co. v. Dole,

(D.C. Cir. 1986). A court has a

“legitimate interest in avoiding adjudication of speculative

controversies.”

An issue may be fit for judicial review if it

10 is a “purely legal one.” Id.; see also Cement Kiln Recycling Coal.

v. EPA,

(D.C. Cir. 2007) (purely legal questions

are “presumptively reviewable”). However, even some purely legal

questions may not satisfy the ripeness test “if postponing review

would provide for a more efficient examination and disposition of

the issues.” State Farm Mut. Auto. Ins. Co.,

.

The second prong of the ripeness doctrine requires a court to

consider whether delaying judicial review would cause the plaintiff

to suffer a “hardship” that is “immediate, direct, and

significant.”

. For example, a company that must

undertake costly changes in response to impending regulation may

satisfy this “hardship” prong.

However, if a plaintiff has

alleged a “mere potential for future injury” or “if there are too

many ‘ifs’ in the asserted causal chain,” then the case is not

ripe.

It is important to emphasize that at this point in the

proceedings, the Court is not addressing the merits of Plaintiff

Shaffer’s claims. See In re Navy Chaplaincy,

(“In

reviewing the standing question, we must be careful not to decide

the questions on the merits for or against the plaintiff, and must

therefore assume that on the merits the plaintiffs would be

successful in their claims.”) (internal quotation marks and

citations omitted). Under the standing and ripeness inquiries, the

hurdle that Plaintiff Shaffer must clear is a low one. See Ross v.

11 Bank of Am., N.A.,

(2d Cir. 2008) (“Injury in fact is

a low threshold, which we have held ‘need not be capable of

sustaining a valid cause of action,’ but ‘may simply be the fear or

anxiety of future harm.’”) (citations omitted).

In this case, Plaintiffs have requested injunctive and

declaratory relief that would permit them to discuss classified

information regarding ABLE DANGER with their counsel. They claim

that they possess a First Amendment constitutional right “to share

classified or potentially classified information with . . . cleared

counsel in order to obtain effective legal representation that

would permit adequate guidance and analysis” on relevant legal

claims. Pls’ Opp’n at 11-12. They do not seek relief for past

harm. Defs.’ Mot at 10 n.4; see generally Pls.’ Opp’n (never

contradicting Defendants’ assertion that Plaintiffs seek only

prospective relief); see also Compl. at 12 (requesting only

injunctive and declaratory relief).

The First Amended Complaint does not distinguish between the

claims of the two Plaintiffs. See Compl. at 12 (requesting

declaratory and injunctive relief for “plaintiffs” and never

requesting a form of relief for one plaintiff not requested for the

other). However, Defendants’ Motion raises specific arguments with

respect to Plaintiff Smith. It argues that because he did not work

on the classified elements of ABLE DANGER, “there is no possible

justification” for giving his attorney access to classified

12 information relating to the program. Defs.’ Mot. at 12. In his

Opposition, Plaintiff Smith “consents to the voluntary dismissal of

his claims pursuant to Rule 41 of the Federal Rules of Civil

Procedure.” Pls.’ Opp’n at 1 n.2. Accordingly, all of Plaintiff

Smith’s claims are dismissed.

With respect to Plaintiff Shaffer’s claims, he mentions three

venues in which sharing classified information with his attorneys

is necessary: (1) future Congressional proceedings, (2) the OIG

investigation, and (3) the attorney-client relationship.

1. Congressional Hearings

With regard to future Congressional hearings, Defendants argue

that Plaintiff Shaffer has not suffered an injury-in-fact and that

his claim is not ripe for adjudication for three reasons. First,

no Congressional hearings are currently scheduled, and Plaintiff

Shaffer has provided no evidence that they will occur in the

future. Second, Plaintiff Shaffer has not established that he will

be required to testify at any Congressional hearings even if they

are scheduled in the future. Third, even if he is required to

testify, he has not shown that he will be required to discuss

classified information during such testimony. Defs.’ Mot. at 13.

In response, Plaintiff Shaffer claims that Congress “remains

very involved” with its inquiry into ABLE DANGER. Pls.’ Opp’n at

12. For support, he cites the Declaration of Congressman Curt

Weldon. Id. at 13. In the Declaration, Congressman Weldon stated

13 that he “fully anticipate[s] that additional hearings will be

scheduled” and that certain unspecified Members of Congress “wish”

to receive a briefing from Plaintiff Shaffer in a “classified

environment.” Pls.’ Opp’n, Exh. 8 at ¶ 4. He also expressed

concern that Congress may schedule testimony with “very little

notice” and that this would “likely” prevent “timely” judicial

action. Id.

Plaintiff Shaffer has failed to present any evidence other

than pure speculation about the possibility of future Congressional

hearings. As Defendants correctly argue, no hearings are

scheduled, Plaintiff Shaffer’s presence has not been requested, and

it is uncertain whether classified testimony will be necessary in

the event that Congress does require his testimony.4

Plaintiff Shaffer has also failed to demonstrate that delay

would impose a hardship on him. His claim is based on the

occurrence of several “ifs”: he speculates about possible hearings

at an unknown point in the future that may or may not require

discussion of classified information. He also speculates that a

court could not act quickly enough to address his concerns, even

though he offered no evidence to suggest that a court would be

unable to resolve the question on short notice, such as on a motion

4 Plaintiff’s Opposition was filed on May 12, 2006. It should be noted no supplemental information has been submitted since that date regarding any future Congressional hearings about ABLE DANGER.

14 for temporary restraining order,5 in the event that the type of

hearings he anticipates are indeed scheduled. In sum, there is no

concrete evidence that he will suffer any hardship if his claims

are not adjudicated at this time. Therefore, Plaintiff Shaffer’s

claims relating to his right to representation at Congressional

hearings are not yet ripe.

2. OIG Investigation

Defendants also argue that Plaintiff Shaffer does not possess

standing for his claims related to the OIG investigation because he

has not alleged that he suffered a legally cognizable injury. They

have submitted a declaration from the supervisor of the OIG

investigation stating that the investigation did not require

Plaintiff Shaffer to discuss classified information. Defs.’ Mot.,

Exh. I. In addition, counsel were permitted to be present each

time Plaintiffs were interviewed. Id.

In response, Plaintiff Shaffer acknowledges that although the

OIG investigation has not yet required discussion of classified

material, permitting his attorney access to classified information

would have enabled him to go “into more detail on his involvement

and knowledge of ABLE DANGER activities and DIA retaliation.”

Pls.’ Opp’n at 14 n.3.

5 That is precisely the procedure Plaintiff Shaffer followed when he filed his request for a temporary restraining order on February 15, 2006.

15 The OIG investigation involves two inquiries: first, it is

investigating Plaintiff Shaffer’s allegations of reprisal, and

second, it is investigating whether government officials acted

“improperly” in handling information from ABLE DANGER. Defs.’

Mot., Exh. I. It is true that we do not know, on this record,

whether Defendants will or will not request another interview with

Plaintiff Shaffer or whether they will or will not ask him to

discuss classified information. However, what is clear is that the

investigation itself and its report and conclusions may well have

a significant impact on his employment status and his livelihood.

Defendants contend that because Plaintiff conceded that “all

personnel actions against Shaffer have been stayed pending the

conclusion” of the OIG investigation, Pls.’ Opp’n at 14, he cannot

survive the standing and ripeness inquiries. Although Defendants

contend that the stay indicates that he has suffered no injury,

they have misidentified the relevant injury in this case. The

question is not whether Plaintiff Shaffer could be subject to an

adverse personnel decision at some point in the future, it is

whether he suffers an injury in the present by virtue of being

denied effective legal representation.

Despite the existence of the stay until completion of the OIG

proceedings, the evidence produced and conclusions reached in those

proceedings may greatly impact whatever employment determinations

are eventually made. For this reason, Plaintiff Shaffer has a

16 compelling interest in obtaining the most fully informed and

knowledgeable representation possible during the OIG investigation.

A fully candid and comprehensive discussion with his attorney,

one that included discussion of the classified aspects of his work

on ABLE DANGER, might present opportunities for alternative

advocacy options, might open up possibilities for new claims or

counter-claims, and might justify additional claims of wrongdoing

by Defendants.

If Defendants were correct, Plaintiff would be forced to wait

until conclusion of the investigation to litigate his employment-

related claims. At that point, he may already have lost his job

and reputation. Failure to present his strongest possible case

during the investigation may cause him irreparable harm.

Accordingly, delaying judicial resolution of his claim could cause

Plaintiff Shaffer immediate hardship.

For these reasons, Plaintiff Shaffer has alleged, with respect

to the OIG proceedings, that he has and will continue to suffer

actual, concrete injury-in-fact because of the limitations placed

on his consultation with his attorney, and therefore he has

standing and his claims are ripe for adjudication.

3. The Attorney-Client Relationship

Finally, Plantiff Shaffer alleges that his First Amendment

right to discuss classified information with his attorney does not

rest “solely” on the Congressional and OIG proceedings. Pls.’

17 Opp’n at 11. Instead, he argues that his claim has a “scope that

is far broader than defendants imply.” Id. He argues that his

claim seeks to “strengthen, and protect from intrusion, the entire

attorney-client relationship.” Id. at 12.

In response, Defendants contend that ripeness and standing

principles bar judicial resolution of Plaintiff Shaffer’s claims

with respect to the “entire” attorney-client relationship.

Defendants contend that “Plaintiff seeks a ruling on important

constitutional questions based upon facts that have not, and may

never occur.” Defs.’ Reply at 2. They also argue that Plaintiff

Shaffer has not identified “his alleged need for his counsel to

have access to classified information.” Id. at 11.

Plaintiff Shaffer presents several reasons that he “continues

to face legal peril at the hands of the defendants.” Id. at 14.

His security clearance was revoked. Id. He may be fired. Id. He

“may or may not” possess whistleblower rights because of the

possibility that the government will take adverse employment action

against him. Id. He “holds potential claims against the U.S.

government under the Constitution and various

regulations/statutes.” Id. Finally, he is unable to “receive

sound advice” or “speak freely” with his attorneys. Id. at 19.

Several cases cited by Plaintiff Shaffer underscore the

importance of the attorney-client relationship. See, e.g., Caplin

& Drysdale v. United States,

(1989); Jacobs v.

18 Schiffer,

(D.C. Cir. 2000). These cases affirm the

First Amendment right to share information with an attorney when

such sharing is necessary for an attorney to advise his client of

his rights.

As is true of his claims regarding the OIG investigation,

Plaintiff Shaffer has demonstrated that his claims are ripe for

adjudication and that he has suffered an actual, concrete injury-

in-fact sufficient to confer standing. Plaintiff Shaffer fears

that he may be fired, and he is contemplating his options for

seeking the protection of whistleblower statutes. His statement

that he is considering “potential claims” reflects his desire to

understand the full panoply of legal options available to him.

Evaluating, investigating, and litigating these rights depends

upon open and frank conversations between Plaintiff Shaffer and his

attorney. See Martin v. Lauer,

(D.C. Cir. 1982)

(“Appellants’ interest in speaking freely with their attorneys is

interwoven with their right to effective assistance of counsel.”).

As the Supreme Court stated in Upjohn Co. v. United States,

(1981), “[t]he first step in the resolution of any

legal problem is ascertaining the factual background and sifting

through the facts with an eye to the legally relevant.” When that

first step is compromised, a plaintiff suffers a concrete injury.

Furthermore, without knowing all that his client, and the

Defendants, know, Plaintiff Shaffer’s counsel cannot be prepared to

19 adequately represent his client’s interests. In summary, when

Plaintiff Shaffer is deprived of the ability to convey all his

knowledge to his attorney, he suffers an actual, concrete injury

sufficient to confer standing, and his claims become ripe for

adjudication.

IV. Conclusion

For the reasons set forth above, Defendants’ Motion to Dismiss

is granted with respect to all of Plaintiff Smith’s claims, and

with respect to the Department of the Army and Tom Taylor. For

Plaintiff Shaffer’s claims, the Motion is granted with respect to

representation at Congressional hearings and denied with respect to

the OIG proceedings and protection of the attorney-client

relationship. An Order shall accompany this Memorandum Opinion.

/s/ February 24, 2009 Gladys Kessler United States District Judge

Copies via ECF to all counsel of record

20