United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 8, 2009 Decided November 17, 2009 

No. 07-5080 

SCOTT TOOLEY, 

APPELLANT

v. 

JANET ANN NAPOLITANO, HOMELAND SECURITY SECRETARY,

IN HER OFFICIAL CAPACITY, ET AL., 

APPELLEES

On Petition for Rehearing 

Lori Alvino McGill, appointed by the court, argued the 

cause as amicus curiae in support of appellant. With her on 

the briefs were Richard P. Bress and Gabriel K. Bell, 

appointed by the court. 

Teal Luthy Miller, Attorney, U.S. Department of Justice, 

argued the cause for appellees. With her on the brief was 

Douglas N. Letter, Attorney.

Before: SENTELLE, Chief Judge, TATEL, Circuit Judge, 

and WILLIAMS, Senior Circuit Judge. 

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS. 
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WILLIAMS, Senior Circuit Judge: This is the second time 

we review the district court’s dismissal of the complaint in 

Tooley v. Bush, No. 06-306, 2006 WL 3783142 (D.D.C.2006). 

After our initial consideration of the case, in Tooley v. 

Napolitano, 556 F.3d 836 (D.C.Cir. 2009), the government 

sought and we granted a rehearing in light of Ashcroft v. 

Iqbal, 129 S. Ct. 1937 (2009). 

In Iqbal the Supreme Court applied its ruling on pleading 

standards in Bell Atlantic v. Twombly, 550 U.S. 544 (2007). 

See, e.g., 129 S.Ct. at 1949. The government argues that 

Iqbal extended Twombly, thus invalidating a construction of 

Twombly previously advanced by this court in Aktieselskabet 

AF 21 November 2001 v. Fame Jeans, 525 F.3d 8 (D.C. Cir. 

2008). While we do not reject the government’s argument, 

upon reflection we believe that we should affirm the district 

court in this case for reasons distinct from but not inconsistent 

with the holding in Iqbal. 

According to his complaint, Scott Tooley phoned 

Southwest Airlines in the spring of 2002 to buy tickets to visit 

family members in Nebraska. At the end of the call, after 

Tooley had provided Southwest with his name and contact 

information, the representative asked him if he had any 

“comments, questions, or suggestions.” Compl. ¶ 18. Having 

been a candidate for elective office and worked on Capitol 

Hill, Tooley “[u]tiliz[ed] his security and public policy 

experience” to “suggest[] that the airline screen 100 percent of 

everything that went into the airline [sic] because he was 

incredulous that in the wake of the tragedies of September 11, 

2001, cargo was, and still is not, fully screened.” Id. at ¶ 19. 

The representative “asked why such a course of action was 

necessary.” Id. Tooley “was incredulous that he was ever 

asked such a question but patiently responded that without 
3

proper security, the traveling public . . . was less safe due to 

the potential that those who wish to harm American citizens 

could put a bomb on a plane.” Id. at ¶ 20. The Southwest 

representative “became alarmed and . . . repeatedly said, ‘you 

said the “b” word, you said the “b” word.’” Affidavit of Scott 

Tooley (Sept. 1, 2006) (“Tooley Aff.”) ¶ 7. Tooley attempted 

to explain to the representative that she had not understood 

him correctly, but she placed him on hold. After 20 minutes, 

Tooley hung up. Id. 

According to Tooley, the ticket agent’s seeming paranoia 

was not the end of the matter. Other events followed, which 

he initially ascribed to six high-level government officials. 

The three remaining in the suit, after a partial dismissal by 

Tooley, are the United States Attorney General, the Secretary 

of the Department of Homeland Security, and the 

Administrator of the Transportation Security Administration, 

all now sued solely in their official capacities (collectively, 

the “government”). See Tooley, 2006 WL 3783142, at *1

(detailing the defendants initially included in Tooley’s 

complaint and his later dismissals). 

In the fall of 2003, roughly a year and a half after his call 

to Southwest, Tooley “began to notice problematic phone 

connections, including telltale intermittent clicking noises, 

which still continue to this day.” Compl. ¶ 21. He states, on 

information and belief, that his telephone problems were 

caused by illegal wiretaps, and that the defendants had such 

wiretaps placed on at least nine phones connected to him: his 

residential landline phone, his landline phone at his former 

residence, his cellular phone, his wife’s cellular phone, the 

phones of his father, brother, sister, and in-laws, and his 

family’s phone in Lincoln, Nebraska, where relatives from 

“France made calls from France to the home, where Mr. 
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Tooley was visiting his mother for the week.” His complaint 

explains that these wiretaps were placed “in response to his 

innocent comments” to the Southwest representative. Id. at 

¶¶ 21-22; Tooley Aff. ¶¶ 16-17. In an affidavit submitted 

after the complaint, Tooley added that from his “experience 

on Capitol Hill [he was] aware that wiretaps are pernicious 

and insidious because, as long as the phone line is plugged 

into the wall in one’s home, those listening to the wiretaps can 

hear anything that goes on in the home.” Tooley Aff. ¶¶ 8-9. 

Tooley’s complaint goes on to recount additional alleged 

government responses to his call to Southwest. Besides the 

wiretaps, the government subjected his and his wife’s vehicles 

to “Radio Frequency Identification Tags (‘RFITs’) that 

monitor their vehicle movements,” effectively subjecting him 

and his wife to “round-the-clock surveillance.” Compl. ¶ 23. 

And Tooley has been subjected to “detention and strict 

search[es]” “every time that [he] traveled prior to filing this 

suit.” Tooley Aff. ¶ 14. 

Furthermore, in March 2005, in the week before and the 

week of a presidential visit to Tooley’s home city of 

Louisville, after Tooley began to “routinely and specifically 

enumerate[] to [his family members] the serious nature of 

various Administration actions that are in no way flattering to 

the Administration . . . [,] an officer in a Ford Crown Victoria 

sat out in front of [Tooley’s] home for approximately six (6) 

hours a day, as a threat of recrimination or persecution of 

political speech.” Tooley Aff. ¶¶ 18-19. 

In order to obtain more information regarding this alleged 

illegal surveillance, Tooley submitted several requests under 

the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. 

See Tooley, 2006 WL 3783142, at *3-8 (detailing the various 
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FOIA requests). Believing that the government wrongly 

refused to comply with his requests, and seeking relief from 

the pattern of surveillance that he discerned, Tooley filed the 

present case in the district court. Counts I and II charge 

Fourth Amendment and constitutional right-to-privacy 

violations, respectively, through the alleged wiretapping, 

RFITs and “other surveillance activities.” Compl. ¶¶ 52, 61. 

Count III claims that by engaging in all the above wrongs the 

defendants deprived Tooley of his First Amendment rights, 

“retaliating” against him for his remarks to the Southwest 

representative. Id. at ¶¶ 70-71. Count IV sought declaratory 

judgment under FOIA. Id. at ¶¶ 80-81. 

The district court granted the government’s motion for 

summary judgment on the FOIA count, Tooley, 2006 WL 

3783142, at *21, and Tooley does not challenge that decision. 

As to Counts I through III, the government moved to dismiss 

under Federal Rule of Civil Procedure 12(b)(1) on the ground 

that Tooley lacked Article III standing. The district court 

addressed the standing arguments by dividing Tooley’s 

allegations into three categories based on the character of the 

government’s alleged unlawful behavior. The first two 

categories encompassed the alleged wiretapping and physical 

surveillance (including the claim that Defendants unlawfully 

placed an RFIT on Tooley’s vehicle). Tooley, 2006 WL 

3783142, at *22. The court held that Tooley lacked Article III 

standing for these claims. It reasoned that “it is altogether 

possible” that Tooley was the subject of “entirely lawful 

wiretaps placed by state or local law enforcement agencies” 

and that Tooley could not show that it was a federal agent 

responsible for any of his alleged physical surveillance. Id. at 

*23, 25. 
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The district court’s third category was the unlawful 

placement of Tooley’s name on a terrorist watch list. As to 

that, the court found Article III standing, but nonetheless 

dismissed Tooley’s claim on the basis of another subject 

matter jurisdiction problem. Tooley, 2006 WL 3783142, at 

*26. Focusing solely on the Transportation Security 

Administration (“TSA”) watch lists, the court found, in 

reliance on 49 U.S.C. §§ 46110(a), (c), that such lists “are 

incorporated into Security Directives issued by TSA . . . and 

Congress has vested exclusive jurisdiction to review such 

directives in the Court of Appeals.” Id. Tooley appeals the 

dismissal of the first three counts. 

A complaint may be dismissed on jurisdictional grounds 

when it “is ‘patently insubstantial,’ presenting no federal 

question suitable for decision.” Best v. Kelly, 39 F.3d 328, 

330 (D.C.Cir. 1994); see also Bell v. Hood, 327 U.S. 678, 683 

(1946); cf. Iqbal, 129 S.Ct. at 1959 (Souter, J., dissenting) 

(“The sole exception to th[e] rule [that allegations must be 

credited at the pleading stage applies to] allegations that are 

sufficiently fantastic to defy reality as we know it: claims 

about little green men, or the plaintiff’s recent trip to Pluto, or 

experiences in time travel.”). A court need not assess whether 

a plaintiff has standing before dismissing on alternative 

jurisdictional grounds. See Ruhrgas A.G. v. Marathon Oil 

Co., 526 U.S. 574, 578 (1999) (“there is no unyielding 

jurisdictional hierarchy”). 

Here Tooley claims that about a year and a half after a 

conversation with an airline representative the government 

launched a massive surveillance program against him, 

involving wiretaps on at least nine phones, tracking devices 

on Tooley’s and his wife’s cars, an officer stationed outside 

his house for a week or more, and other unspecified acts of 
7

surveillance, all continuing to this day, now seven years after 

the initial phone call. Moreover, as alleged by Tooley, the 

program was both sloppy—the wiretaps were greatly delayed 

after the precipitating event and all were technical busts, 

alerting the many victims by giving off clicking sounds—and 

well beyond the state of the art, enabling the snoopers “as 

long as the phone line is plugged into the wall in one’s home . 

. . [to] hear anything that goes on in the home.” Tooley Aff. 

¶¶ 8-9 (emphasis added). The alleged motivation, moreover, 

was nothing if not bizarre: the defendants, people charged 

with protecting the country’s security, allegedly acted out of a 

desire to “retaliate” against Tooley for his having offered a 

suggestion of additional measures that he claimed would 

enhance airline security. Alternatively, some of the 

surveillance was evidently to persecute him for remarks 

critical of the Bush administration, remarks likely 

indistinguishable from those of millions of Americans.

We recognize that in a nation of 300 million people, with 

millions of government employees, some are bound at any 

given moment to be acting unwisely, foolishly, 

counterproductively, mistakenly, maliciously, viciously, even 

inanely. But the particular combination of sloth, fanaticism, 

inanity and technical genius alleged here seems to us to move 

these allegations into the realm of claims “flimsier than 

‘doubtful or questionable’— . . . ‘essentially fictitious,’” Best, 

39 F.3d at 330 (citing Hagans v. Lavine, 415 U.S. 528, 537 

(1974)), not realistically distinguishable from allegations of 

“little green men” of the sort that Justice Souter recognized in 

Iqbal as properly dismissed on the pleadings. Iqbal, 129 S.Ct. 

at 1959 (Souter, J., dissenting). Indeed, the allegations appear 

similar to those in a number of cases that district courts have 

dismissed for patent insubstantiality: that plaintiff was 

subjected to a campaign of surveillance and harassment 
8

deriving from uncertain origins, either a long past 

employment by the FBI or a falling out with roommates even 

earlier, Curran v. Holder, 626 F. Supp. 2d 30, 33-34 (D.D.C. 

2009); that a U.S. Senator orchestrated a program of hacking 

into plaintiff’s personal computer, monitoring his phone calls, 

causing a power outage affecting half of Los Angeles, and 

tracking him by helicopter, Lewis v. Bayh, 577 F. Supp.2d 47, 

54-55 (D.D.C. 2008); and that the Postal Service had 

conspired with two persons unconnected to the federal 

government (and bearing her surname) to keep her under 

surveillance in Postal Service premises by unlawful use of 

electronic devices, Delaine v. United States Postal Service, 

2006 WL 2687019, *2 (D.D.C. 2006), aff’d No. 06-5321, 

2007 U.S. App. LEXIS 7371, unpublished order (D.C. Cir. 

June 1, 2007). Because the allegations of Tooley’s complaint 

constitute the sort of patently insubstantial claims dismissed in 

these and other cases, we conclude that the district court was 

correct in its judgment of dismissal. 

The judgment of the district court is therefore 

Affirmed.