UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

YASIR AFIFI , Plaintiff,

v. LORETTA LYNCH , in her official capacity as Attorney General, et al. , Defendant s . Civil Action No. 11

- 0460 (BAH) Judge Beryl A. Howell

MEMORANDUM OPINION The plaintiff, Yasir Afifi, brings suit against Loretta Lynch . in h er official capacity as Attorney General of the United States, James Comey , in his official capacity as Director of the Federal Bureau of Investigation (collectively, the “official capacity defendants”), 1 FBI agent Jennifer Kanaan, in her personal capacity, and several unknown FBI agents , also in their personal capacities (collectively, the “individual defendants”) , relating to the warrantless installation in 2010 of a wireless GPS tracking device on his automobile. Specifically, the plaintiff seeks relief for violations of his rights under the First and Fourth Amendment s of the Constitution , the Administrative Procedure Act (APA), 5 U.S.C. §§ 70 1 et seq. , and the Privacy Act, 5 U.S.C. § 55 2a . The Court concludes that the individual defendants are entitled to qualified immunity with respect to the alleged constitutional violations, the official capacity defendants have not violated the strictures of the Privacy Act, and the plaintiff lacks stan ding to bring his APA challenge

.

1 The plaintiff originally named former Attorney General Eric Holder and f ormer Director of the FBI Robert Mueller as defendant s in this case. Pursuant to Federal Rule of Civil Procedure 25(d), the Court automatically substitutes their successor s , Loretta Lynch and James Comey, respectively, as the new defendant s . 1I. B ACKGROUND A. Factual Background O n October 3, 2010, the plaintiff , a California resident, brought his car to a repair shop in California for a routine oil change

. See Am. Compl. ¶ ¶ 12, 32, ECF No. 21. The results of the maintenance were far from routine, however. During the oil change , the plaintiff discovered “a wire sticking out between t he right rear wheel [of his automobile] and exhaust.” Id. The wire was connected to “a smaller black rectangular object that had a n antenna.” Id. At first, t he plaintiff thought the object might be a “pipe bomb.” Id. at ¶ 34. Nonetheless, upon the plaintiff’s request, the mechanic removed the object and the plaintiff returned with it to his home

. Id. at ¶¶ 33

– 34. Later that day, the plaintiff upload ed pictures of the object onto an internet site , whereupon a reader suggested that the object was a GPS tracking device sold exclusively to law enforcement agencies. Id. at ¶ 35. Three days later, multiple FBI agents visited the plain tiff’s apartment complex to retrieve the GPS d evice

. Id. at ¶ 36. After the plaintiff left his apartment that day, two unmarked vehicles followed him, turned on their police lights , and pulled him over. Id. at ¶¶ 36

– 37. F our individuals wearing bullet

- p roof vests approached the plaintiff’s vehicle. After initially inquiring af

ter an expired license plate, an FBI agent identifying himself as “Vincent” asked the plaintiff to exit his vehicle. Id. at ¶ 39. After exiting the vehicle, “Vincent” and an FBI agent named as a defendant in this action, Jennifer Kanaan, engaged the plaintiff in conversation. Id. at ¶ 40. During the exchange, the agents “acknowledged that the device belonged to their agency, that they attached it to [the plaintiff’s] vehicle, an d that they used the device to monitor [the plaintiff’s] movements.” Id. at ¶ 43. The agents also asked the plaintiff other questions, including “whether he was a national security threat, whether he was having financial difficulties, [and] whether he ha d been to Yemen . . . .” Id. Eventually, the plaintiff agreed to 2return the GPS d evice to the FBI agents

. Id. at ¶ 45. After returning the GPS d evice, defendant Kanaan made several comments to the plaintiff that indicated to the plaintiff that the FBI had knowledge of the plaintiff’s movements, including commenting on certain restaurants at which the plaintiff ate, a friend with whom he associated, and a new job at which he worked. Id. at ¶ 46. At the end of the encounter, the plaintiff alleges that d efendant Kanaan suggested to him that he was not a national security threat and that he was no longer of use to the FBI. Id. at ¶ 47. Following the incident, the plaintiff reported his confrontation with the FBI agents to local and national media , and the media published numerous stories about the encounter. Id. at ¶ 48. 2
T he FBI’s investigation into the plaintiff h as since been administratively closed. See Declaration of Joel D. Dabisch (“Unsealed Dabisch Decl.”) at ¶ 8, ECF No. 25

- 3

. Noneth eless, the FBI “continues to maintain additional records summarizing [the data collected from the GPS d evice], as well as records reflecting other information and actions taken concerning [the] plaintiff.” Id. at ¶ 9. Following the incident , the plaintif f submitted a FOIA request and received redacted copies of certain records maintained by the FBI , including newspaper articles documenting the incident and an FBI report documenting the encounter between the agents and the plaintiff. Am. Compl. ¶ 4.
B. Procedural Background Following the encounter, t he plaintiff brought suit against both the official capacity defendants and the individual defendants

. See generally Am. Compl. ¶¶ 13

– 14, 17

– 18. In Count I, the plaintiff brings suit under Bivens v. Six Unk nown Named Agents of Federal Bureau of
Narcotics , 403 U.S. 388 (1971), and asserts that the individual defendants violated his Fourth Amendment rights by subjecting the plaintiff to an unconstitutional warrantless search

. Id. at

2 See, e.g. , Kim Zetter, Caught Spying on Student, FBI Demands GPS Tracker Back , W IRED (October 7, 2010 , 10:13 PM ), http://www.wired.com/2010/10/fbi

- tracking

- device/ 3¶¶ 52

– 54

. In Count II , th e plaintiff alleges that both the individual defendants and the official capacity defendants violated his rights under the Privacy Act by unlawfully collecting and maintaining records of his First Amendment activities

. Id. at ¶¶ 60

– 62. In Count III , the plaintiff alleges that the actions taken by the official capacity defendants in approving the use of the GPS d evice were “arbitrary, capr i cious, an abuse of discretion, otherwise not in accordance with law, and c ontrary to constitutional right and should b e set aside as unlawful” under the
APA , 5 U.S.C. § 706. Id. at ¶ 63. Finally, in Count IV , the plaintiff alleges that the individual defendants have “create[d] an objective chill on [his] First Amendment activities.” Id. at ¶ 69

. Through the instant action, the plaintiff seeks an injunction ordering the defendants to refrain from attaching a GPS tracking device to his vehicle without a warrant, direct ing the defendants to abandon the policy of allowing the use of GPS tracking devic es without a warrant, and ordering the official defendants to expunge a ll records collected through the use of the GPS tracking device and any related analyses of those records. Id. (Prayer for Relief)

. The plaintiff further seeks a declaratory judgment that the defendants ’ use of the GPS tracking device violated his First, Fourth, and Fifth Amendment rights, and tha t the maintenance of records of the plaintiff’s First Amendment activities violates the Privacy Act. Id. Finally, the plaintiff seeks damages for “the emotional pain, suffering, reputational harm, economic injury, and anxiety” caused by the defendants’ actions. Id. Previously, this Court stayed proceedings in this matter, pending the Supreme Court’s decision in United States v. Jones , 132 S. Ct. 945 (2012), which addressed the constitutionality of the warrantless use of a GPS device . Following the decision in Jones , the individual defendants moved to dismiss all claims under Federal Rule of Civil Procedure 12(b)(6) , see Defenda nt Jennifer Kanaan’s Motion to Dismiss, ECF No. 22, while the official capacity

4defendants sought dismissal under Federal Rule of Civil Procedure 12(b)(1) and summary judgment, see Defendants Holder and Mueller’s Motion to Dismiss and for Summary Judgment on Plaintiff’s Amended Complaint, ECF No. 27.
II. L EGAL S TANDARD A. Motion to Dismiss Under Rule 12(b)(1) “‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power authorized by Constitution and statute.’” Gunn v. Minton , 133 S. Ct. 1059 , 1064 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am ., 511 U.S. 375, 377 (1994)). Indeed, federal courts are “forbidden . . . from acting beyond our authority,” NetworkIP, LLC v. FCC , 548 F.3d 116, 120 (D.C. Cir. 2008), and, therefore, hav e “an affirmative obligation ‘to consider whether the constitutional and statutory authority exist for us to hear each dispute.’” James Madison Ltd. by Hecht v. Ludwig , 82 F.3d 1085, 1092 (D.C. Cir. 1996) (quoting Herbert v. National Academy of Sciences , 974 F.2d 192, 196 (D.C. Cir. 1992 )). When the purported lack of jurisdiction stems from a lack of standing , the court “must assume that [the plaintiff] states a valid legal claim.” Info. Handling Servs., Inc. v. Def. Automated Printing Servs. , 338 F.3d 1024, 1029 (D.C. Cir. 2003) ; see also Mendoza v. Perez , 754 F.3d 1002, 1010 (D.C. Cir. 2014) (“ In evaluating plaintiffs ’ standing at the motion to dismiss stage ‘ we must assume that the plaintiff[s] state[ ] a valid legal claim and must accept th e factual allegations in the complaint as true. ’ ” (quoting Holistic Candlers and Consumers Ass’n v. FDA , 664 F.3d 940, 943 (D.C. Cir. 2012) (alterations in original))

. The proponent of jurisdiction bears the burden of proving that it exists , s ee Khadr

v. United States, 529 F.3d 1 112, 1115 (D.C. Cir. 2008), and, i n determining jurisdiction, “the district court may consider ma terials outside the pleadings.” J erome Stevens Pharm., Inc. v.
FDA , 402 F. 3d 1249, 1253 (D.C. Cir. 2005); see also Belhas v. Ya’ Alon, 515 F.3d 1279, 1281 (D.C. Cir. 2008 ) (examining materials outside the pleadings in ruling on a Rule 12(b)(1) motion 5to dismiss for lack of subject matter jurisdiction ); Coal. for Underground Expansion v. Mineta , 333 F.3d 193, 198 (D.C. Cir. 2003) (no ting that courts may consider materials outside the pleadings in ruling on a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction).
B. Motion to Dismiss Under Rule 12(b)(6) Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” to encourage brevity and, at the same time, “give the defendant fair notice of what the

... claim is and the grounds upon which it rests.” Bell Atlantic Corp . v. Twombly , 550 U.S. 544, 555 (2007) (ellipses in original; internal quotations and citations omitted) ; Tellabs, Inc. v. Makor Issues & Rights, Ltd ., 551 U.S. 308, 319 (2007)

. The Supreme Court has cautioned that although “ Rule 8 marks a notable and generous departure from the hyper

- technical, code

- pl eading regime of a prior era,

. . . it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. ” Ashcroft v. Iqbal , 556 U.S. 662, 678

- 79 (2009). To survive a moti on to dismiss under Federal Rule of Civil Procedure 12(b)(6) , the “ ‘ complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. ’ ” Wood v. Moss , 134 S. Ct. 2056, 2067 (2014) (quoting Iqbal , 556 U.S. at 678 ). A claim is facially plausible when the plaintiff pleads factual content that is more than “ merely consistent with a defendant ’ s liability, ” and “ allows the court to draw the reasonable inference that the defendant is lia ble for the misco nduct alleged. ” Iqbal , 556 U.S. at 678 (citing Twombly , 550 U.S. at 556); see also Rudder v. Williams , 666 F.3d 790, 794 (D.C. Cir. 2012). Although “detailed factual allegations” are not required to withstand a Rule 12(b)(6) motion, a complaint must offer “more than labels and conclusions” or “ formulaic recitation of the elements of a cause of action ” to provide “grounds” of “entitle[ment] to relief,” Twombly , 550 U.S. at 555 (alteration in original), and

“ nudge[ ] [ the ] claims across the line from conceivable to plausible, ” id . at 570. Thus, “ a 6complaint [does not] suffice if it tenders ‘ naked assertion[s] ’ devoid of ‘ further factual enhanc ement. ’” Iqbal , 556 U.S. at 678 (quoting Twombly , 550 U.S. at 557 ). In considering a motion to dismiss for failure to plead a claim on which relief can be granted, the court must consider the complaint in its entirety, accepting all factual allegations i n the complaint as true, even if doubtful in fact

. Twombly at 555; Sissel v. United States HHS , 760 F.3d 1, 4 (D.C. Cir. 2014) (in considering Rule 12(b)(6) motion, the “court assumes the truth of all well

- pleaded factual allegations in the complaint and construes reasonable inferences from those allegations in the plaintiff's favor, but is not required to accept the plaintiff' s legal conclusions as correct” (internal quotations and citations omitted ) ). In addition, courts may “ordinarily examine” other

s ources “ when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc., 551 U.S. at 322 ; see also English v. District of Columbi a , 717 F.3d 968, 971 (D.C. Cir. 2013) . C. Summary Judgment Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Summary judgment is properly granted against a party who, “after adequate time for discovery and upon motion, . . . fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on whi ch that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986); Talavera v. Shah , 638 F.3d 303, 308 (D.C. Cir. 2011) . The burden is on the moving party to demonstrate that there is an “absence of a genuine issue of material fact” in dispute. Celotex , 477 U.S. at 323; Hendricks v. Geithner , 568 F.3d 1008, 1012 (D.C. Cir. 2009). “Material facts are those that might affe ct the outcome of the suit under governing law; genuine issues are those in which the 7evidence before the court is such that a reasonable trier of fact could find for the moving party.” Hendricks , 568 F.3d at 1012; see also Holcomb v. Powell , 433 F.3d 889 , 895 (D.C. Cir. 2006) (“A fact is ‘material’ if a dispute over it might affect the outcome of a suit under governing law; factual disputes that are ‘irrelevant or unnecessary’ do not affect the summary judgment determination.” (citing Anderson v. Liberty Lobby, Inc

. , 477 U.S. 242, 248 (1986))). In ruling on a motion for summary judgment, the Court must draw all justifiable inferences in favor of the nonmoving party and shall accept the nonmoving party’s evidence as
true. Liberty Lobby , 477 U.S. at 255; see also Grosdidier v. Broad. Bd. of Governors , 709 F.3d 19, 23

– 24 (D.C. Cir. 2013). The Court is only required to consider the materials explicitly cited by the parties, but may on its own accord consider “other materials in the record.” F ED
. R. C IV
. P. 56(c)(3). The nonmoving party must establish more than “[t]he mere existence of a scintilla of evidence in support of [its] position,” Liberty Lobby , 477 U.S. at 252, and cannot rely on mere allegations or conclusory statements, see Ass’n of Flight Atten dants v. United States Dep’t of Transp. , 564 F.3d 462, 465 (D.C. Cir. 2009); Hussain v. Nicholson , 435 F.3d 359, 365 (D.C. Cir. 2006); Veitch v. England , 471 F.3d 124, 134 (D.C. Cir. 2006) (Rogers, J. , concurring); Greene v. Dalton , 164 F.3d 671, 675 (D.C . Cir. 1999); accord F ED
. R. C IV
. P. 56(e). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. See, e.g. , F ED
. R. C IV
. P . 56(c)(1); Equal Rights Ctr. v. Post Props. , 633 F.3d 1136, 1141 n.3 ( D.C. Cir. 2011) (noting that at summary judgment stage, plaintiff “can no longer rest on such ‘mere allegations,’ but must ‘set forth’ by affidavit or other evidence ‘specific facts,’ . . . which for purposes of the summary judgment motion will be taken to be true.’” (quoting Sierra Club v. EPA , 292 F.3d 895, 898

– 99 (D.C. Cir. 2002) (ellipsis in original))). “If the evidence is

8merely colorable, or is not significantly probative, summary judgment may be granted.” Liberty Lobby , 477 U.S. at 249

– 50 (citatio ns omitted).
III. D ISCUSSION The plaintiff brings four causes of action against the defendants. In Counts I and IV, the plaintiff brings a Bivens claim against the individual defendants, alleging violations of the plaintiff’s Fourth and First Amendment rights, respectively

. See Am. Compl. at ¶¶ 52

– 58, 66

– 69 . In Count II, the plaintiff challenges the maintenance of records pertaining to his F irst
A mendment activities under the Privacy Act. Id. at ¶¶ 59

– 62. Finally, in Count III, the plaintiff
assert s an APA challenge to the actions of the official capacity defendants in approving the warrantless use of the GPS device. Id. at ¶¶ 63

– 65. The Court first address es the plaintiff’s
Bivens claims, before turning to the plaintiff’s Privacy Act and APA chall enges. A. Qualified Immunity Shields the Individual Defendants from the Plaintiff’s Bivens Claims “Qualified immunity is ‘ a defense that shields officials from suit if their conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. ’ ” Bame v. Dillard , 637 F.3d 380, 384 (D.C. Cir. 2011) (quoting Ortiz v. Jordan , 562 U.S. 180 , 183 (2011) ( alterations omitted) ) ; Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). Since qualified immunity is “an immunity from suit rather than a mere defense to liability, . . . it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth , 472 U.S. 511, 526 (1985) ( emphasis in original ). Accordingly, a court must “resolv[e] immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant , 502 U.S. 224, 227 (1991) (per curiam). “Qualified immunity balances two important interests

— the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from

9harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan , 555 U.S. 223, 231 (2009). This protection is afforded to government officials whether their “error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Id. (citations and internal quotation marks omitted); see also Brinegar v. United States , 338 U.S . 160, 176 (1949) (“Because many situations which confront officers in the c ourse of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability.”). “Whether an offici al protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time i t was taken.” Messerschmidt v. Millender , 1 32 S. Ct. 1235, 1245 (2012) (brackets, internal quotation marks, and citation omitted). “To defeat a defense of qualified immunity, a plaintiff must show not only that an official ‘violated a constitutional right ’ but also that ‘the right was clearly established’ at the time of the violation.” Fenwick v. Pudimott , 778 F.3d 133, 137 (D.C. Cir. 2015). In Saucier v. Katz , 5 33 U.S. 194 (2001), the Supreme Court established a two

- step analysis for resolving
governmen t officials’ qualified immunity cl aims. First, a court must determine whether “the facts alleged show [that] the officer’s conduct violated a constitutional right .” Id. at 201

. If the plaintiff satisfies this initial inquiry , the court then determines whether the right at issue was clearly establish ed at the time of the alleged misconduct. Id. The sequence of this analysis is no longer mandatory, and now “lower courts have discretion to decide which of the two prongs of qualified

- immunity analysis to tackle first.” Ashcroft v. al

- Kidd , 131 S. Ct. 2074, 2080 (2011) (citing Pearson , 555 U.S. at 236 ) ; s ee also Pudimott , 778 F.3d at 137

.

10The Court finds that the individual defendants are entitled to qualified immunity on both of the plaintiff’s Bivens c laims because, as discussed more fully below, neither the Fourth Amendment n or First Amendment rights he seeks to vindicate in this suit were clearly established at the time and in the place where the challenge conduct occurred. 1. Fourth Amendment In the pr esent case , the individual defendants do not address whether, under the Supreme Court’s recent decision in Jones , the individual defendant s ’ actions violated the Fourth Amendment. See Def. Jennifer Kanaan’s Reply Supp. Mot. Dismiss at 2, ECF No. 33 (“The issue currently before the court is not whether warrantless GPS monitoring was constitutional, but whether the law was so clearly established such that every reasonable officer would h ave known that the conduct was prohibited.”); see also Mem. Supp. Def. Jennifer Kanaan’s Mot. Dismiss at 5 n.3 (arguing that “this is a case in which it makes sense to proceed directly to the question whether the right asserted by Plaintiff was clearly est ablished” and not addressing whether the individual defendants actions violated the Constitution). The Court agrees that the threshold question is whether the individual defendants ’ actions violated clearly established law. See Wesby v. District of Colum bia , 765 F.3d 13, 25 (D.C. Cir. 2014) (“‘An officer is entitled to qualified immunity, despite having engaged in constitutionally deficient conduct, if, in doing so, she did not violate clearly established statutory or constitutional rights of which a reas onable person would have known.’” (quoting Brosseau v. Haugen , 543 U.S. 194, 205 (2004)) ) ; see also Harlow , 457 U.S. at 818. “Courts focus upon the state of the law at the time the action occurred because if the law at that time was not clearly establishe d, then the official could not reasonably be expected to anticipate subsequent legal developments.” Bame , 637 F.3d at 387 (internal quotations and alterations omitted)

. In making the determination of whether the law was clearly

11established, it is import ant to note that “ [q] ualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions. ” Al

Kidd , 131 S. Ct. at 2085; see also Messerschmid t , 132 S. Ct. at 1244

. As a result, “[w] hen properly applied, [qualified immunity] protects ‘all but the plainly incompetent or those who knowingly violate the law.’” A l

- Kidd , 131 S. Ct. at 2085 (quoting Malley v. Briggs , 475 U.S. 335, 341 (1986)). The plaintiff alleges that the individual def endants ’ conduct violated this high threshold. The plaintiff argues that at the time the individual defendants employed the GPS d evice, such warrantless use was deemed unconstitutional by this Circuit in United States v. Maynard , 615 F.3d 544, 555

– 56 (D.C . Cir. 2010) (“[W]e hold . . . [that] the police action was a search because it defeated Jones’s reasonable expectation of privacy.”)

. See Mem. Opp’n to Def. Jennifer Kanaan’s Mot. Dismiss ( “ Pl.’s Kanaan Opp ’n ”) at 7, ECF No. 29

. The plaintiff also notes that for purposes of the qualified immunity analysis, a court ordinarily looks to “cases of controlling authority in [its] jurisdiction

. ’” Id. at 8 (quoting Youngbey v. March , 676 F.3d 1114, 1117 (D.C. Cir. 2012) )

. As a result, th e plaintiff argues that the individual defendants’ warrantless use of a GPS device was squarely in violation of binding Circuit prece dent and therefore violated clearly established law

. This argument ignore s two salient features of the present dispute. First, the Circuit s

were split regarding the constitutionality of the warrantless use of a GPS device at the time of the conduct at issue

. See United States v. Jones , 625 F.3d 766, 767 (D.C. Cir. 2010) ( Sentelle, C.J., dissenting from the denial of rehea ring en banc ) (“In my view, this question should be reviewed by the court en banc because the panel’ s decision is inconsistent . . . with every other federal

12circuit which has considered the case . . . .”)

. 3 Second, the warrantless use of a GPS device was lawful under Ninth Circuit precedent at the time of its use in the present case . In other words, the individual defendants ’ warrantless use of the GPS d evice was valid in California, the jurisdiction in which the individual defendants used the GPS device

. See United States v. Pineda

Moreno , 591 F.3d 1212, 1217 (9th Cir. 2010) (“We conclude that the police did not conduct an impermis sible search of Pineda

- Moreno’s car by monitoring its location with mobile tracking devices.”)

. Thus, not only were the Cir cuits split at th e time of the individual defendant s ’ conduct, but the conduct was lawful in the jurisdiction in which it occurred. Both factors favor the grant of qualified immunity to the individual defendants

. As the Supreme Court explained in Wilson v. Layne , 526 U.S. 603, 618 (1999) , and reiterated subsequently, “ [i] f judges thus disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy. ” See also Pearson , 555 U.S. at 2 23 (same) ; Reichle v. Howards , 132 S. Ct. 2088, 2096 (2012) (same). To avoid the implication of the Circuit split, the plaintiff seizes upon Youngbey v. March for the proposition that “ ‘ [i]n determining whether the legal rules at issue are clearly established, ’ ” a court must look only to cases of controlling authority in its own jurisdiction. 4
See Pl.’ s Kanaan Opp’n at 8 (quoting Youngbey , 676 F.3d at 1117)

. Yet, Youngbey did not address the issue of qualified immunity where the defendant s acted in a jurisdiction different

3 Compare United States v. Pineda

- Moreno , 591 F.3d 1212, 1215

- 17 (9th Cir. 2010), cert. granted & judgment vacated , 132 S. Ct. 1533 (2012); United States v. Marquez , 605 F.3d 604, 609

– 10 (8th Cir. 2010); United States v. Garcia , 474 F.3d 994, 995

- 98 (7th Cir. 2007); United States v. McIver , 186 F .3d 1119, 1126 (9th Cir. 1999) , with Maynard , 615 F.3d 544, 556 (D.C. Cir. 2010), aff’d sub nom. United States v. Jo nes , 132 S. Ct. 945 (2012). Further underscoring the uncertainty nationwide regarding the issue, after the D.C. Circuit’s opinion in Maynard , two other Circuits rejected the idea that GPS monitoring constitutes a search. See United States v. Hernandez , 64 7 F.3d 216, 221 (5th Cir. 2011); United States v. Cuevas

- Perez , 640 F.3d 272, 275

- 76 (7th Cir. 2011) (Cudahy, J.), cert. granted & judgment vacated , 132 S. Ct. 1534 (2012); Cuevas

- Perez , 640 F.3d at 276 (Flaum, J., concurring). 4 Notably, in Reichle v. How ards , the Supreme Court declined to accept the proposition that a Circuit’s own authority can be the dispositive source of clearly established law for purposes of qualified immunity. See 132 S. Ct. at 2094 (“Assuming arguendo t hat controlling Court of Appeals’ authority could be a dispositive source of clearly established law in the circumstances of this case . . .”). 13from the forum of the lawsuit

. I n such situations, “ [w] hen faced with inconsistent legal rules in different jurisdictions, national officeholders should be given some deference for qualified immunity purposes, at least i f they implement policies consistent with the governing law of the jurisdiction where the action is taken. ” Al

- Kidd , 131 S. Ct. at 2086

– 87 (Kennedy J., concurring). Indeed, the Supreme Court has described the refusal to grant qualified immunity as “espec ially troubling” where a defendant ’ s actions “were lawful according to courts in the jurisdiction where he acted.” Stanton v. Sims , 134 S. Ct. 3, 7 (2013) (reversing Ninth Circuit’s refusal to grant qualified immunity). A contrary rule would permit plain tiffs to forum shop and might otherwise deter “national officeholders . . . from full use of their legal authority.” Al

- Kidd , 131 S. Ct. at
2087 (Kennedy J., concurring)

. Such deterrence warrants “ cau tion by the Judicial Branch” in refusing to grant qua lified immunity, “ particularly in the area of national security.” Id. Applying these principals to the present case, the individual defendants are entitled to qualified immunity as their actions , in following the binding precedent of the relevant jurisdiction , were not “plainly incompetent” and did not violate clearly established law. 5
2. First Amendment Although the precise scope of the plaintiff’s First Amendment claim is unclear from the Amended Complaint, during briefing, the plaintiff clarified that his claim “ pertain [s] to the manner and effect of the warrantless search itself and [his] ongoing fear that [the individual defendants] will resume their investigation or disclose his personal information to third parties. ” Pl.’s Kanaan Opp’n at 10. The plaintiff expressly clarifies that his “ First Amendment claims do not encompass the collection and maintenance of the information gathered through the GPS

5 As the Supreme Court has recognized in the context of the exclusionary rule, “when binding appellate precedent specifically authorizes a particular police practice, well

- trained officers will and should use that tool to fulfill their crime

- detection and public

- safety responsibilities.” Davis v. United States , 131 S. Ct. 2419, 2429 (2011) (emphasis in original). 14surveillance. Instead, the First Amendment claims challenge the chilling effect the warrantles s search had on his expressive and associational rights.” Id. As formulated, t he individual defendants are entitled to qualified immunity with regard to the plaintiff’s Bivens claim for violations of the First Amendment. The plaintiff ha s failed to cit e a single case from any Circuit holding that the warrantless use of a GPS device violates an individual ’ s First Amendment rights. To be sure, the qualified immunity analysis does not require a “ case directly on point , ” Al

- Kidd , 131 S.Ct. at 2083, but a court must take caution in properly defining the scope of the right violated, see id. at 2084 (“We have repeatedly told courts . . . not to define clearly established law at a high level of generality.”)

. In this regard , the plaintiff’s silence is tell ing as “existing precedent must have placed the statutory or constitutional question beyond debate.” 6
Id. The plaintiff’s inability to cite a single case in support of his contention that the warrantless use of a GPS device violated his First Amendment rights dooms his claim. 7

6 The primary cases on wh ich the plaintiff relies refer to violations of the Privacy Act. See Pl.’s Kanaan Opp’n at 12 (citing Nagel v. United States Department of Health, Education, and Welfare , 725 F.2d 1438, 1141 (D.C. Cir. 1984) (“T he mere compilation by the government of rec ords describing the exercise of First Amendment freedoms creates the possibility that those reco rds will be used to the speaker’ s detriment, and hence has a chilling effect on such exercise.” ); Mac P herson v. IRS , 803 F.2d 479, 484 (9 th Cir. 1986)). These cases actually undermine the plaintiff’s claim in the present case. To the extent the plaintiff argues that the compilation of records concerning the plaint iff’s First Amendment activities chilled the exercise of his First Amendment rights, such a Bivens claim is otherwise encompassed by the remedial scheme of the Privacy Act and will not lie. See, e.g. , Wilson v. Libby , 535 F.3d 697, 707 (D.C. Cir. 2008) (“The failure of the Privacy Act to provide complete relief to the Wilsons, however, does not undermine its status as a ‘comprehensive scheme’ that stops us from providing additional remedies under Bivens .”); Chung v. U nited States Dep’ t of Justice , 333 F.3d 273, 274 (D.C. Cir. 2003) (“We affirm the dismissal of Chung ’ s constitutional claims because, as the district court correctly held, they are encompassed within the remedial scheme of the Privacy Act.”); Sudnick v. Un ited States Dep’ t of Def ., 474 F. Supp. 2d 91, 100 (D.D.C. 2007) (“Since the [Privacy] Act is a comprehensive statutory scheme that provides meaningful remedies for the kind of wrong plaintiff alleges, plaintiff may not proceed under Bivens .”). 7 The pla intiff’s reliance on Hartman v. Moore , 547 U.S. 250 (2006) is misplaced

. See Pl.’s Kanaan Opp’n at 11

– 12. Hartman concerned alleged government retaliation for the exercise of First Amendment rights. In evaluating the plaintiff’s claim, Hartman recognize d that “as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions , including criminal prosecutions, for speaking out.” Hartman , 547 U.S. at 256. By contrast, in the present case, the plain tiff has not alleged that the GPS d evice was used as retaliation for any First Amendment activity, or even identified any First Amendment activity taken by the plaintiff prior to the installation of the GPS d evice. Although the plaintiff note s that he sub sequently spoke with local and national media, see Am. Compl. at ¶ 48, the plaintiff has not identified any retaliatory action taken by the individual defendants following his discussions with the media. 15The Court need not decide whether the individual defendants’ warrantless use of a GPS d evice violated the plaintiff’s First Amendment rights because the law regarding the issue was not clearly established at the time of the cond uct. See Pearson , 555 U.S. at 236. As a result, qualified immunity shields the individual defendants from the plaintiff’s First Amendment
Bivens claim.
B. Privacy Act Challenge In his second claim, the plaintiff alleges that, because of the GPS d evice, the Government currently maintains records of his First Amendment activities in violation of the Privacy Act, 5 U.S.C. §522a. 8 See Am. Compl. at ¶¶ 59

– 62. The Privacy Act “ ‘ safeguards the public from unwarranted collection, maintenance, use and dissem ination of personal information contained in agency records . . . by allowing an individual to participate in ensuring that his records are accurate and properly used. ’ ” Cloonan v. Holder , 768 F. Supp. 2d 154, 161 (D.D.C. 2011) ( quoting Henke v. Dep’ t of Commerce , 83 F.3d 1453, 1456 (D.C. Cir. 1996)). “To accomplish this goal, the Act ‘gives agencies detailed instructions for managing their records and provides for various sorts of civil relief to individuals aggrieve d by failures on the Government’ s part to comply with the requirements.’” Id. (quoting Doe v. Chao , 540 U.S. 614, 618 (2004)). Section (e)(7) of the Privacy Act provides that a government agency “shall . . . maintain no record describing how any individual exercises rights

8 Although the plaintiff’s Amended Complaint purpo rts to bring this claim against the individual defendants and the official capacity defendants, see Am. Compl. ¶¶ 59

– 62, a Privacy Act claim may only be brought against an agency. See 5 U.S.C. 552a(g)(1). Thus , to the extent the plaintiff asserts a claim against the individual defendants under the Privacy Act, such claim is dismissed. Likewise, the plaintiff may not bring suit under the Privacy Act against the official capacity defendants and must instead bring suit against the appropriate agency. See M artinez v. Bureau of Prisons , 444 F.3d 620, 624 (D.C. Cir. 2006) (“[T]he district court properly dismissed the named individual defendants because no cause of action exists that would entitle appellant to relief from them under the Privacy Act or FOIA.” (citations omitted)); Dick v. Holder , No. 13

- cv - 1060 , 2014 WL 4450531, at *4 (D.D.C. Sept. 10, 2014). Nonetheless, for the reasons explained, even were this Court to substitute the agency in place of the named official capacity defendants, the plaintiff ’ s claim would still fail. 16guaranteed by the First Amendment unless . . . pertinent to and within the scope of an authorized law enforcement activity.” 5 U.S.C. § 552a (e)(7). The official capacity defendants seek summary judgment on the plaintiff’s Privacy Act claim, arguing that that the collect ed records are “pertinent to and within the scope of an authorized law enforcement activity” and therefore do not violate the Privacy Act. See Mem. Supp. Defs. Holder and Mueller’s Mot. Dismiss & Summ. J. at 11

– 15 , ECF 25

- 1

. The plaintiff
opposes summary judgment, arguing that the record is insufficient to determine if the collection and maintenance of the plaintiff’s records was pursuant to a valid law enforcement activity, that the collection violated the Fourth Amendment and was therefore per se unauth orized, that the records are not relevant on a continuing basis, and that policy concerns militate against permitting the maintenance of the plaintiff’s records. See Mem. Opp’n Defs. Holder and Mueller’s Mot. Dis. and Summ. J. (“Pl.’s Official Capacity Op p’n”) at 13

– 25, ECF No. 30

- 1

. The plaintiff’s arguments are unavailing. The official capacity defendants collected and maintained records of the plaintiff’s First Amendment activities as part of an authorized law enforcement activity. “ Although t he Pri vacy Act does not define ‘ law enforcement activity, ’ [the D.C. Circuit has] interpreted the phrase broadly ” to include “an authorized criminal, intelligence, or administrative investigation.” Maydak v. United States , 363 F.3d 512, 517 (D.C. Cir. 2004) (citing Nagel v. U.S. Dep’t of Health, Educ. and Welfare , 725 F.2d 1438, 1441 n.3 (D.C. Cir. 1984) ) . While the plaintiff argues that the present record is insufficient to determine whether the investigation was pursuant to an authorized law enforcement a ctivity, see Pl.’s Official Capacity Opp’n a t 16 (citing

17Maydak , 363 F.3d at 517) , the present record adequately demonstrates the validity of the investigation into the plaintiff for purposes of the Privacy Act. 9
In Maydak v. United States , the D.C. Circ uit assessed whether the Bureau of Prisons (“BOP”) could main duplicate photographs of prisoners visiting with family, friends, and associates. 363 F.3d at 517 . To determine whether the records complied with Section (e)(7) of the Privacy Act , the Court c onducted a two

- step inquiry. First, the Court examined the responsibilities of the BOP, noting that the “BOP has responsibility for preserving prison security.” Id. Second, the Court examined whether the BOP’s proffered explanation for the maintenance o f the photographs was consistent with their institutional responsibilities. The Court determined that “examining photographs for conduct that may threaten [prison] security” and “reviewing inmate photographs for gang

- related activity and obscene conduct” were consistent with the responsibilities of the BOP and would “easily” fall within the purview of Section (e)(7). Id. Nonetheless, according to the BOP’s own declarations, the BOP also collected the materials for general “investigative or informative value,” which purposes were too vague to permit the award of summary judgment. Id. As a result, the Court remanded the case with instructions to “determine, on the basis of a fuller record, whether . . . review of [the]

9 The plaintiff has requested an opportunity for discovery into the details of the initiation of the investigation of his activities , but such discovery is not proper under the Privacy Act. Instead , a court may decide the applicability of Section (e)(7) o n the basis of the declarations submitted by the agency . This avoids placing “law enforcement agencies in the catch

- 22 of either divulging current investigatory activities or not asserting the law enforcement exception specifically provided in the Act.” Bassiouni v. FBI , 436 F.3d 712, 722 n.7 (7th Cir. 2006) . Where information is needed beyond the agency declarations, the appropriate remedy i s the review of an ex parte classified submission

— not discovery. See J. Roderick MacArthur Found. v. FBI, 102 F.3 d 600, 605 (D.C. Cir. 1996) . In the present case, t he official capacity defendants have submitted a sealed d eclaration in support of their m otion for summary j udgment further detailing the background of the investigation into the plaintiff. See Declaration of Joel D. Dabisch (“Sealed Dabisch Decl.”), ECF No. 27

- 2 . The official capacity defendants have also offered further substantiation of the declaration through a classified ex parte submission to the Court. Th e information contained in the se aled declaration is sufficient to determine that the records are within the scope of an auth orized law enforcement activity

. Nonetheless , it bears noting that to the extent the plaintiff seeks to vindicate his own actions or to otherwise discredit the ini tiation of the FBI’s investigation through the use of discovery, the investigation is now closed and this Court is satisfied regarding the evidence giving rise to the FBI’s investigation in the first instance. 18photographs was consistent with an ‘authorized law enforcement activity’” in light of the additional purposes for the collection. Id. A similar two step

- inquiry in the present case reveals the records of the plaintiff’s activities to have been collected as part of an “authorized la w enforcement activity.” The FBI has “responsibility in investigating all crimes for which it has primary or concurrent jurisdiction and which involve terrorist activities or acts in preparation of terrorist activities . . . .” 28 C.F.R. §0.85(l). Such responsibility includes “the collection, coordination, analysis, management and dissemination of intelligence and criminal information as appropriate.” Id. Based upon the declaration submitted, t he investigation into the plaintiff was fully consistent wi th the FBI’s mission to investigate potential terrorist activities and a fuller record is unnecessary to determine that the collection of records was consistent with an authorized law enforcement activity. 10 See Maydak , 363 F.3d at 517 (“Because BOP has r esponsibility for preserving prison security, we have no doubt that examining photographs for conduct that may threaten that security is pertinent to and within the scope of an authorized law enforcement activity.”). Nor does the Supreme Court’s ruling i n Jones alter this determination. As discussed,
Jones held that the warrantless use of a G PS monitoring device constitutes a search for purposes of the Fourth Amendment. See Jones , 132 S. Ct. at 949. The plaintiff argues that because the investigative t actic that led to the records was subsequently determined to be unconstitutional, the records cannot be “within the scope of an authorized law enforcement activity.” See Pl.’s Official Capacity Opp’n at 20

– 21. As an initial matter, the D.C. Circuit has i nterpreted the phrase “law enforcement activity” to refer to criminal, intelligence, or administrative investigations and not each act taken in furtherance of that investigation. See Maydak , 363 F.3d

10 According to the sealed declaration , [REDACTED]. 19at 517. Thus, the pertinent question is whether the investigation was valid and not whether every act taken in furtherance of the investigation was valid. 11 Second, even to the extent the focus of the analysis should be on the specific investigatory tactic , as opposed to the investigation as a whole, the re levant analysis must focus on the investigatory tactic at the time of its use , not at some arbitrary future date. “[T] he Privacy Act does not prohibit an agency from maintaining records about an individual's first amendment activities if the information w as pertinent to an authorized law enforcement activity when the agency collected the information

. ” J. Roderick MacArthur Found. v. FBI, 102 F.3d 600, 603 (D.C. Cir. 1996) (emphasis added). As discussed above, in the present case, the plaintiff’s informati on was collected prior to the Supreme Court’s decision in Jones and was valid under then

- existing law in the jurisdiction of collection. Accordingly, even to the extent the proper inquiry should focus on the investigative tactic used to collect the record s, the collection of the plaintiff’s records in this case was valid under the precedent of the jurisdiction where it was collected. In addition, the fact that the investigation into the plaintiff is now closed does not render the records invalid under Section (e)(7). The D.C. Circuit has held that an agency may maintain records from an authorized investigation even after that investigation was closed, because “[m]aterials may continue to be relevant to a law enforcement activity long after a particular investigation undertaken pursuant to that activity has been closed . . . .” J. Roderick MacArthur Found. , 102 F.3d at 60 2 ; see also id

. at 603 ( “Information that was pertinent to an authorized law enforcement activity when collected does not later lose its pertinence to that activity simply because the information is not of current interest (let alo ne ‘necessity’) to the agency.”). The present case is no different. The records now in the FBI’s possession may permit the FBI to

11 Indeed, where the use of an investigative tactic violates the C onstitution, the ordinary remedy is to exclude the evidence from any subsequent trial, not to invalidate the entire investigation. 20verify or evaluate any new intelligence received, assess the reliability of other sources, and ensure accountability regarding how the FBI responded to the information it received

. See Unsealed Dabisch Decl . at ¶ 13. In Bassiouni v. FBI , 436 F.3d 712 , 718

– 19 (7th Cir. 2006), the Seventh Circuit upheld the FBI’s maintenance of records concerning the First Amendment activities of a DePaul University law professor even though the FBI “concede[d] that it does not suspect him of ties to terrorist groups.” Nonetheless, the Seventh Circ uit concluded that the files might be relevant to ongoing authorized investigations for the same reasons provided here : corroboration of new evidence and evaluation of t he reliability of other sources

. See id. at 724. The court concluded that maintaining the records for such purposes constituted an “authorized law enforcement activity.” Id. Finally, the plaintiff cautions against the policy consequences of permitting the FBI to maintain the plaintiff’s records in the present instance, warning of a “ broad ‘chilling effect’ on people’s First Amendment rights.” Pl.’s Official Capacity Opp’n at 23. Although mindful of the plaintiff’s concern, Congress has set out a binding legal balance between the sometimes competing interests of protecting First Amendment activity and protecting national security. Section (e)(7) of the Privacy Act reflects this congressional balancing: The records of an individual’s First Amendment activities may not be kept by a government agency except when “pertinent to and within the scope of an authorized law enforcement activity.” 5 U.S.C. § 552a(e)(7). As discussed above, the records of the plaintiff fall within the protections afforded by the statutory scheme.

21The defendants have demonstrated that the records of the plaintiff’s First Amendment activities complied with Section (e)(7) of the Privacy Act, and summary judgment is granted to the official capacity d efendants with respect to the plaintiff’s Privacy Act claim. 12
C. APA Challenge Before the Court may address the merits of the plaintiff’s APA challenge , the Court must first resolve the threshold question of whether the plaintiff maintains standing to seek injunctive relief. As discussed below, the Court concludes that the plaintiff lacks standing to see k prospective injunctive relief under the APA

. Article III of the Constitution restricts the power of federal courts to hear only “Cases” and “Controversies.” “The doctrine of standing gives meaning to these constitutional limits by ‘identify[ing] those disputes which are appropriately resolved through the judicial process.’” Susan B. Anthony List v. Driehaus , 134 S. Ct. 2334, 2341 (2014) (alterations in original) (quoting Lujan v. Defenders o f Wildlife , 504 U.S. 555, 560 (1992)). The Supreme Court has explained that “the irreducible constitutional minimum of standing contains three elements.” Lujan , 504 U.S. at 560. A claimant must show: (1) he or she has suffered an “injury in fact” that is (a) “concrete and particularized” and (b) “actual or imminent, not conjectural or hypothetical;” (2) there must be “a causal connection between the injury and the conduct complained of” such that the injury is “fairly

. . . trace [ able ] to the challenged a ction of the defendant;” and (3) it must be “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. (internal quotations omitted). In short, “[t]he plaintiff must have suffered or be imminently threatened with a concrete and particularized ‘injury in fact’ that is fairly traceable to

12 As a result, the Court need not reach the official capacity defendants ’ alternative argument that the plaintiff may not seek expungement of the records in question. See Bassiouni , 436 F.3d at 724 (“[W]e need not reach the question of whether expungement is a proper remedy because, as demonstrated below, we believe that the FBI 's maintenance of Mr. Bassiouni’ s records in this case complies with the requirements of § 552a(e)(7).”). 22the challenged action of the defendant and likely to be redressed by a favorable judicial decision.” Lexmark Int ’ l, Inc. v. Static Control Components , Inc. , 134 S. Ct. 1377, 1386 (2014). Importantly, “a plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought.” Davis v. Fed. Election Comm’ n , 554 U.S. 724, 734 (2008) (internal quotations omitted).
W hen a plaint iff seeks prospective declaratory or injunctive relief, allegations of past harms are insufficient. See Dearth v. Holder , 64 1 F.3d 499, 501 (D.C. Cir. 2011). Rather, when declaratory or injunctive relief is sought, a plaintiff “must show he is suffering an ongoing injury or faces an immediate threat of [future] injury.” Id. (citing City of Los Ange les v. Lyons , 461 U.S. 95, 105 (1983)). “‘Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes . . . .’” Clapper v. Amnesty Int ’ l USA , 133 S. Ct. 1138, 1147 (2013) (quoting Lujan , 504 U.S. at 565 n.2). In this Circuit, “[a] plaintiff must show a ‘substantial probability of injury’ to establish imminent injury.” 13 Sierra Club v. Jewell , 764 F.3d 1, 7 (D.C. Cir. 2014) (quoting Chamber of Commerce of the U.S. v. EPA , 642 F. 3d 192, 200 (D.C. Cir. 2011)). Accordingly, w hen a plaintiff seeks injunctive or declaratory relief

s pecifically for the purpose of challenging an alleged policy or practice of a government agency, the plaintiff must demonstrate that it is “ ‘realistically threatened by a repetition of [its] experience.’” Haase v. Sessions , 835 F.2d 902, 910

– 11 (D.C. Cir. 1987) (quoting Lyons , 461 U.S. at 109 ). To plead a “threat of repetition,” a plaintiff must make “more than a nebulous

13 In Clapper v. Amnesty Int’l USA , the Supreme Court described the imminence requirement as supporting a “certainly impending” standard, but noted that prior precedent had sometimes required a showing only of “substantial risk.” 133 S. Ct. at 1150 n.5. Under the facts of Clapper , the Court concluded that “to the extent that the ‘substantial risk’ standard is relevant and is distinct from the ‘clearly impending’ requirement, respondents fall short of even that standard . . . .” Id. Although Clapper appeared to distinguish the “certainly impending” and “substantial risk” standards , the D.C. Circuit has interpreted Clap per to require a showing of a “substantial probability of injury.” See Sierra Club , 764 F.3d at 7 (citing Clapper , 133 S. Ct. at 1150 & n.5). 23assertion of the existence of a ‘policy,’” and that it is “likely to be subjected to the policy again.” Id. at 911. This threat must be “real and immediate,” or, alternatively, “realistic[ ]” in nature. See Lyons , 461 U.S. at 102

– 106 ; Golden v. Zwickler , 394 U.S. 103, 109 (1969)

. The plaintiff puts forward three allegations of harm in support of his APA clai m . First, the plaintiff has “alleged a past violation of his rights by [ the official capacity d efendant s ]. ” See Pl.’s Official Capacity Opp’n at 5. Second, the plaintiff alleges that “employe r s are denying him employment on discovering the fact that [th e individual defendants] searched him.” Id. Third, the plainti ff alleges “a future danger of Defendants tracking him through similar means.” Id. In support of his third allegation, the plaintiff notes that the “FBI expressed an ongoing interest in [the plaintiff] immediately prior to the litigation.” Id. With respect to the plaintiff’s first argument, a prior violation of his rights by the official capacity defendants will not suffice to confer standing for him to seek prospective relief.
See Dea rth , 641 F.3d at 501 (requiring a plaintiff to “show he is suffering an ongoing injury or faces an immediate threat of [future] injury” when seeking prospective relief). In contrast , t he plaintiff’s third alleged injury

— the “future danger” of the defendan ts once again attaching a GPS d evice to his car without a warrant

— is too speculative to suppor t standing in the present case. On this point, the Supreme Court’s decision in City of Los An geles v. Lyons is instructive.
In Lyons , the plaintiff was stopped by four police officers and, “without provocation or justification,” the police officers “applied a chokehold ” to the plaintiff. 461 U.S. at 97

– 98. T he plaintiff sought damages and an injunction against the c ity of Los Angeles from using “chokeholds,” w hich the plaintiff alleged were permitted under c ity policy in certain limited circumstances. Id. The Supreme Court held that the plaintiff lacke d standing to seek an injunction because “[t]here was no finding that [the plaintiff] face d a real and immedi ate threat

24of again being illegally choked

. ” Id. at 110. So too here. In the present case, the investigati on into the defendant is closed, s ee Unsealed Dabisch Decl. at ¶ 10, and the practice of which the defendant complains is now subject to c onstituti onal scrutiny as a “search , ” see Jones , 132 S. Ct. 945. Both facts decrease the likelihood that the complained

- of action will be repeated

. Moreover, Jones does not bar the use of a GPS d e vice as an investigative tactic altogether

. Id

. Thus , the plaintiff must show that there exists both a substantial probability that the Government will employ a GPS d evice again st him again and a substantial probability that the Government will do so without a warrant or not otherwise in accordance with c on stitutional protections

. The plaintiff has offered no such evidence . Although the plaintiff notes that the FBI has subsequently contacted his counsel regarding a possible interview of the plaintiff , the plaintiff offers no credible explanation for how a request to counsel for an interview suggests a substantial probability that a GPS device will again be attached to his automobile

. See Am. Compl. at ¶ 57 (“[The plaintiff] ascertains a future danger of Defendants again attaching a tracking device to his vehicle. This belief has an objective basis insofar as an FBI agent contacted [the plaintiff] through counsel . . . to ask for an interview.”). The plaintiff ’s second allegation

— that he experiences an ongoing injury because employers are denying him employment upon discovery of the FBI’s investigation

— presents a different problem . The injury is self

- inflicted. The D.C. Circuit has “consistently held that self

inflicted harm doesn’t satisfy the basic requirements for standing.” Nat’ l Family Planning & Reprod. Health Ass'n, Inc. v. Gonzales , 468 F.3d 826, 831 (D.C. Cir. 2006) ; J. Roderick MacArthur Found. , 102 F.3d at 606; Ellis v. Comm'r of Internal Revenue Serv. , No. 14

- 0471, 2014 WL 4557643, at *9 (D.D.C. Sept. 16, 2014) (“[I]t is well

- settled in th is jurisdiction that self

- inflicted injuries

— injuries that are substantially caused by the plaintiff's own conduct

—

25sever the causal nexus needed to establish standing.”). After discovering the GPS device, the plaintiff contacted local and national media t o share his story. See Am. Compl. at ¶ 48. The plaintiff’s potential employers only discovered that the plaintiff was a subject of an FBI investigation because of the plaintiff’s own self

- identification as a subject of an FBI investigation

. Any injury to the plaintiff as a result was self

- inflicted and will not suffice to confer standing on the plaintiff.
T he plaintiff’s second standing theory suffers from an additional flaw. A ruling by this
Cour t in favor of the plaintiff will not re dress his alleged grievance because the alleged harm results from the independent actions of third parties not before the Court

— the prospective employers

. “[S]tanding to challenge a government policy cannot be founded merely on speculation as to what thir d parties will do in response to a favorable ruling.” Renal Physicians
Ass’ n v. U.S. Dep ’ t of Health & Human Servs. , 489 F.3d 1267, 1274 (D.C. Cir. 2007). The D.C. Circuit has identified “two categories of cases where standing exists to challenge governme nt action though the direct cause of injury is the action of a third party.” Id. at 1275. “First, a federal court may find that a party has standing to challenge government action that permits or authorizes third

- party conduct that would otherwise be ill egal in the absence of the Government's action.” Na tional Wrestling Coaches v. United States Dep’t of Educ. , 366 F.3d 930, 940 (D.C. Cir. 2004). Second, standing has been found “where the record present[s] substantial evidence of a causal relationship bet ween the government policy and the third

- party conduct, leaving little doubt as to causation and the likelihood of redress.” Id. at 941. The plaintiff’s complaint falls into neither category as the challenged policy at issue does not authorize employers to take any action whatsoever with regard to the plaintiff’s employment, nor has the plaintiff submitted any evidence to suggest that employers would alter their behavior in light of any ruling by this Court.

26Instead, this Court is left to speculate regar ding the independent actions of third parties. Such speculation does not suffice to confer standing. In sum, the plaintiff cannot establish standing to pursue his claims for prospective relief and therefore his claim for prospective relief under the APA is dismissed for lack of standing

. 14
IV. C ONCLUSION For the foregoing re asons, the individual defendant s ’ motion to dismiss is granted and the official capacity defendants ’ motion to dismiss and for summary judgment is granted. An appropriate Order accompanies this memorandum opinion.
Date: April 30 , 201 5

__________________________ BERYL A. HOWELL United States District Judge

14 Even if the plaintiff were able to establish standing to pursue his claim for prospective relief, the plaint iff’s claim under the APA fails to challenge final agency action as contemplated by the APA. The plaintiff argues that “[t]he authorization and placement of the warrantless tracking device on [the plaintiff’s] vehicle is a ‘circumscribed, discrete’ agency action specific to [the plaintiff].” Pl.’s Official Capacity Opp’n at 11. “‘Agency action’ includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act . . . .” 5 U.S.C. § 551(1 3); see also Norton v. S. Utah Wilderness Alliance , 542 U.S. 55, 62 (2004). The authorization or use of a GPS d evice does not fall within any of these categories nor is it the “equivalent . . . thereof.” A law enforcement agency’s approval of the use of a specific investigative technique in the context of a specific investigation does not constitute final agency action within the meaning of the APA. See Reliable Automatic Sprinkler Co. v. Consumer Prod. Safety Comm’n , 324 F.3d 726, 731 (D.C. Cir. 2003) ( “The agency's conduct thus far amounts to an inve stigation of appellant’ s sprinkler heads . . . [and such] agency activities do not constitute final agency action within the meaning of the APA . . . .”); see also ACLU v. NSA , 49 3 F.3d 644, 678 (6th Cir. 2007) (“The plaintiffs challenge the NSA’s warrantless interception of overseas communications, the NSA’s failure to comply with FISA’s warrant requirements, and the NSA’s presumed failure to comply with FISA’s minimization procedu res. This is conduct, not ‘agency action.’ Furthermore, there is no authority to support the invocation of the APA to challenge generalized conduct.”)

. 27