United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 4, 2008 Decided February 20, 2009 

No. 07-5080 

SCOTT TOOLEY, 

APPELLANT

v. 

JANET NAPOLITANO, HOMELAND SECURITY SECRETARY, IN 

HER OFFICIAL CAPACITY, ET AL., 

APPELLEES

Appeal from the United States District Court 

for the District of Columbia 

(No. 06cv00306) 

Cassandra S. Bernstein, appointed by the court, argued 

the cause for amicus curiae in support of appellant. With her 

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

Scott Tooley, appearing pro se, was on the brief for 

appellant. 

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

argued the cause for appellees. With him on the brief were 

Gregory G. Katsas, Assistant Attorney General, and Douglas 
2

Letter, Litigation Counsel. Anthony A. Yang, Attorney, 

entered an appearance.

Before: SENTELLE, Chief Judge, AND TATEL, Circuit 

Judge, AND WILLIAMS, Senior Circuit Judge. 

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS. 

Dissenting opinion filed by Chief Judge SENTELLE. 

WILLIAMS, Senior Circuit Judge: According to Scott 

Tooley’s complaint, he phoned Southwest Airlines in the 

spring of 2002 to buy tickets to fly to Nebraska to visit his 

family. At the end of the call, after Tooley had provided 

Southwest with his name and contact information, the airline 

representative asked Tooley if he had any “comments, 

questions, or suggestions.” Compl. ¶ 18. Tooley responded 

that, in the wake of the September 11 attacks, Southwest 

should screen 100 percent of “everything,” and that without 

“proper security” Tooley and other members of the traveling 

public were “less safe due to the potential that those who wish 

to harm American citizens could put a bomb on a plane.” 

Compl. ¶¶ 19-20. The Southwest representative responded 

with alarm and declared “you said the ‘b’ word, you said the 

‘b’ word.” Tooley Aff. ¶ 7. Tooley attempted to explain to 

the representative that she had not understood him correctly, 

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

Tooley finally hung up. Id. 

According to Tooley, the ticket agent’s seeming paranoia 

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

he ascribes to various government officials; those 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 
3

Transportation Security Administration, all sued solely in 

their official capacities (collectively, the “government”). See 

Tooley v. Bush, No. 06-306, 2006 WL 3783142, at *1 (D.D.C. 

2006) (detailing the defendants initially included in Tooley’s 

complaint and his later dismissals). 

Tooley claims that in the fall of 2003, more than a year 

after the call to Southwest, he began to notice problematic 

phone connections, including “telltale” intermittent clicking 

noises. Compl. ¶ 21. He alleges, “[u]pon information and 

belief,” that his telephone problems were caused by illegal 

wiretaps placed on 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 inlaws, and his family’s phone in Lincoln, Nebraska, where 

relatives from “France made calls from France to the home, 

where Mr. Tooley was visiting his mother for the week.” Id. ¶ 

22. Tooley claims that these alleged wiretaps were placed in 

response to the comments he had made to Southwest’s 

representative. 

In addition, he alleges that the government has placed 

him on “one or more terrorist watch lists” and that as a result 

he is “being illegally monitored by Defendants.” Id. ¶ 25. 

This illegal monitoring has allegedly taken various forms, 

including the placement of permanent “Radio Frequency 

Identification Tags” on Tooley’s vehicle and improper 

detentions and searches at airports. Id. ¶¶ 23-24. Tooley also 

claims, in an affidavit submitted to the district court, that in 

March of 2005, when then-President George W. Bush visited 

Louisville, Kentucky, where Tooley currently resides, “an 

officer in a Ford Crown Victoria sat out in front of [Tooley’s] 

home for approximately six (6) hours a day” during the week 

leading up to and the week of President Bush’s visit. Tooley 

Aff. ¶ 19. 
4

In order to obtain more information regarding this 

allegedly 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 FOIA requests). After the requests 

failed to yield any information confirming his suspicions, 

Tooley filed the present case in the district court. Counts I 

and II charge Fourth Amendment and constitutional right to 

privacy violations, respectively; Count III claims a First 

Amendment violation on the theory that the government’s 

illegal surveillance had caused him to curtail his speech. 

Count IV sought declaratory relief under FOIA. 

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—wiretapping; 

physical surveillance (including the claim that Defendants 

unlawfully placed a Radio Frequency Identification Tag on 

Tooley’s vehicle); and the unlawful placement of Tooley’s 

name on a terrorist watch list. Tooley, 2006 WL 3783142, at 

*22. 

The court held that Tooley lacked Article III standing for 

both the wiretapping claims and physical surveillance 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. 
5

As to Tooley’s being placed on terrorist watch lists, 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 now appeals the district court’s dismissals of 

Counts I through III, arguing that the district court improperly 

applied the “liberal requirements of notice pleading” and 

rested its conclusions “on a basic misreading of the 

Complaint.” Petr. Br. 2. Thin as Tooley’s claims appear, we 

agree and therefore reverse and remand the case.

* * * 

To establish constitutional standing a plaintiff must show 

an injury in fact that is fairly traceable to the challenged 

conduct and that will likely be redressed by a favorable 

decision on the merits. Lujan v. Defenders of Wildlife, 504 

U.S. 555, 560-61 (1992). The burden on the plaintiff to show 

each element grows increasingly stringent at each successive 

stage of the litigation. Id. at 561. At the pleading stage, 

Federal Rule of Civil Procedure 8(a) requires only “a short 

and plain statement of the claim showing that the pleader is 

entitled to relief,” from which it follows that “general factual 

allegations of injury resulting from the defendant’s conduct 

may suffice.” Lujan, 504 U.S. at 561. At the summary 

judgment stage, by contrast, “the plaintiff can no longer rest 

on . . . mere allegations” but must set forth specific facts by 

affidavit or other evidence. Id. (internal quotations omitted). 
6

In the absence of district court resolution of disputed issues of 

material fact, we review a dismissal for lack of standing de 

novo. Muir v. Navy Fed. Credit Union, 529 F.3d 1100, 1105 

(D.C. Cir. 2008). 

The Supreme Court’s decision in Bell Atlantic Corp. v. 

Twombly, 127 S. Ct. 1955 (2007), has produced some 

uncertainty as to exactly what is required of a plaintiff at the 

pleading stage. See Aktieselskabet Af 21. November 2001 v. 

Fame Jeans, 525 F.3d 8, 15 & n.3 (D.C. Cir. 2008) (gathering 

cases suggesting that courts “have disagreed about the import 

of Twombly”). In Fame Jeans, however, we concluded that 

“Twombly leaves the longstanding fundamentals of notice 

pleading intact.” Id. at 15. Thus, we “must assume all the 

allegations of the complaint are true . . . and . . . must give the 

plaintiff the benefit of all reasonable inferences derived from 

the facts alleged.” Id. at 17 (internal citations and quotations 

omitted). This liberal pleading standard requires a court to 

deny a motion to dismiss “even if it strikes a savvy judge that 

. . . recovery is very remote and unlikely.” Twombly, 127 S. 

Ct. at 1965. So long as the pleadings suggest a “plausible” 

scenario to “sho[w] that the pleader is entitled to relief,” a 

court may not dismiss. Id. at 1966.

In finding that Tooley lacked standing, the district court 

delved into an examination of the merits of Tooley’s claim 

and found them wanting. For example, in evaluating Tooley’s 

wiretapping claim, the district court surmised that “Plaintiff 

has been the subject of entirely lawful wiretaps placed by state 

or local law enforcement agencies.” Tooley, 2006 WL 

3783142, at *23. Injunctive relief, it reasoned, would be 

“ineffective if in fact, Plaintiff is the subject of wiretaps 

placed by someone other than federal officials or if there are 

actually no wiretaps.” Id. at *24. Similarly, in evaluating 

Tooley’s physical surveillance claims, the district court 

questioned whether the person Tooley alleged was sitting in 
7

front of his house was a federal officer and whether the officer 

was there as a consequence of his phone conversation with 

Southwest. Id. at *23-24. 

But at this stage of the litigation standing “in no way 

depends on the merits of the plaintiff’s contention that 

particular conduct is illegal.” Warth v. Seldin, 422 U.S. 490, 

500 (1975). A plaintiff does not need to “prove that the 

agency action it attacks is unlawful”; otherwise “every 

unsuccessful plaintiff will have lacked standing in the first 

place.” Louisiana Energy & Power Auth. v. FERC, 141 F.3d 

364, 368 (D.C. Cir. 1998) (internal quotations omitted). 

Under our system’s undemanding pleading rules, the district 

court was required to accept Tooley’s factual allegations as 

true. 

On appeal the government makes little attempt to defend 

the hypothetical scenarios that led the district court to 

conclude that Tooley’s alleged injuries may not have been 

caused by the defendants. Instead, the government argues 

that, even accepting Tooley’s factual allegations as true, they 

are “so insubstantial . . . that they fail to ‘raise a right to relief 

above the speculative level.’” Appellees’ Br. 30 (quoting 

Twombly, 127 S. Ct. at 1965). 

Specifically, the government argues that Tooley’s 

allegations are “no more substantial than the allegations this 

Court found inadequate to establish standing in United 

Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375 

(D.C. Cir. 1984).” Appellees’ Br. 34. In United Presbyterian

the plaintiffs challenged an executive order governing foreign 

intelligence and counterintelligence activities. United 

Presbyterian, 738 F.2d at 1377. We affirmed the dismissal of 

the claims because the plaintiffs could not satisfy the injuryin-fact standing requirement. The plaintiffs had asserted that 

they were “currently subjected to unlawful surveillance” as 
8

evidenced by factual allegations that one plaintiff suffered 

from interrupted mail service and another from disruption of 

speaking engagements; but we found that “[m]ost, if not all, 

of the allegations on that score are in any event too 

generalized and nonspecific to support a complaint.” Id. at 

1380. 

While we share many of our dissenting colleague’s 

concerns over the ultimate plausibility of Tooley’s claims, his 

allegations are somewhat less generalized and selfcontradictory than those of United Presbyterian. Especially 

when taken in combination, Tooley’s claims—to have seen an 

officer sitting outside his home during a Presidential visit, to 

have heard supposed “telltale” phone clicks, and to be subject 

to searches every time he travels— create links to government 

surveillance that are more specific than the mere loss of mail. 

Further, although the temporal link between the precipitating 

event and the alleged surveillance may in Tooley’s case 

appear stretched nearly to the breaking point, in United 

Presbyterian time would have had to run backwards: 

“[M]any of the appellants allege unlawful activities directed 

against them before this executive order or either of its 

predecessors existed.” Id. at 1381 n.3 (emphasis added). 

Thus, we think the two cases are distinguishable and that 

Tooley’s standing allegations meet the federal rules’ 

notoriously loose pleading criteria. 

As to Tooley’s claim that the alleged surveillance 

“chilled” his speech in violation of the First Amendment, the 

government points to Laird v. Tatum, 408 U.S. 1 (1972). 

There the Supreme Court held that the plaintiffs had not 

adequately presented a justiciable controversy because their 

decision to curtail their speech was based on a “subjective 

‘chill,’” and not a claim of “specific present objective harm or 

a threat of specific future harm.” Id. at 13-14. But in Laird

the plaintiffs’ alleged self-censorship was “caused, not by any 
9

specific action of the Army against them, [but] only [by] the 

existence and operation of the intelligence gathering and 

distributing system.” Id. at 3 (internal quotations omitted). 

Tooley, in contrast, alleges harm from specific events, 

arguably linked to government conduct, that he says caused 

the chilling effect. Whether or not Tooley’s alleged harms 

amount to a First Amendment claim remains an open 

question, one which was not before the district court. 

Finally, we turn to Tooley’s claim that he has been 

wrongfully placed on terrorist watch lists. The Complaint 

alleges that following Tooley’s conversation with Southwest 

in the spring of 2002, he has been “improperly detained and 

subjected to a strict search without any probable cause.” 

Compl. ¶ 24. His affidavit provides further details about these 

detentions and searches, which he claims occurred every time 

he traveled before filing this suit. Tooley Aff. ¶ 15. 

Specifically, Tooley alleges that in July 2004, he was 

subjected to a “degrading and unreasonable search” at 

Omaha’s Eppley Airfield. The district court concluded, and 

we affirm, that Tooley has established Article III standing on 

his watch list claims. Tooley, 2006 WL 3783142, at *26.

But the district court’s conclusion that it lacked subject 

matter jurisdiction over the entirety of Tooley’s watch list 

claims was based on a misreading of the complaint. When 

analyzing Tooley’s claim that he was placed on “one or more 

terrorist watch lists,” Compl. ¶ 25, the district court focused 

only on TSA watch lists. It concluded that TSA watch lists 

are incorporated into security directives issued by TSA 

pursuant to 49 U.S.C. § 114(l)(2)(A) and that therefore the 
10

federal courts of appeals have exclusive jurisdiction over such 

watch lists pursuant to 49 U.S.C. §§ 46110(a), (c).1

We may assume for our purposes that the district court 

was correct insofar as TSA watch lists are concerned. But 

Tooley’s complaint did not focus solely on watch lists 

maintained by the TSA. Though he mentions TSA watch lists 

numerous times in his pleadings, he also alleges that he has 

been placed on numerous watch lists and sought an injunction 

requiring “Defendants to remove his name from any and all

watch lists that may indicate Plaintiff is associated with any 

terrorist activities or organizations.” Compl. 15 (emphasis 

added). As Tooley’s complaint should be liberally construed 

and the possibility exists that several government agencies 

apart from the TSA maintain watch lists, see Peter M. Shane, 

The Bureaucratic Due Process of Government Watch Lists, 75 

Geo. Wash L. Rev. 804, 811 (2007) (discussing at least 12 

terrorist or criminal watch lists maintained by the federal 

government), the district court erred in treating Tooley’s claim 

as if it had been confined to TSA watch lists.

* * * 

We must therefore reverse. In regard to further 

proceedings, we note that once a plaintiff has overcome a 

standing challenge under our famously liberal pleading rules 

he is not automatically entitled to unlimited discovery. 

Federal Rule of Civil Procedure 26(b)(2) dictates that “the 

court must limit the frequency or extent of discovery . . . if it 

determines that . . . the burden or expense of the proposed 

 

1

 The district court mistakenly cited to 48 U.S.C. § 46110, see 

Tooley, 2006 WL 3783142, at *26, though clearly referring to 49 

U.S.C. § 46110. 
11

discovery outweighs its likely benefit considering . . . the 

importance of the issues at stake in the action.” Additionally, 

Federal Rule of Civil Procedure 56(f) states that where the 

party opposing a motion for summary judgment claims 

inability to “present facts essential to justify its opposition,” 

“the court may” order a continuance to permit discovery to 

occur, a highly discretionary power. See Donofrio v. Camp, 

470 F.2d 428, 431-32 (D.C. Cir. 1972) (“The rules governing 

discovery, including Fed. R. Civ. P. 56(f), are to be construed 

liberally to prevent injustice, but they do not require a trial 

judge to countenance repeated abuses of the discovery process 

or to let discovery go on indefinitely in a groundless suit.”). 

Moreover, discovery relating to national security may present 

exceptional problems, as in some contexts a pattern of 

government answers (denying specific conduct in some cases, 

refusing to answer on national security grounds in others) 

would constitute a de facto disclosure of information not 

formally disclosed. Cf. Bassiounia v. C.I.A, 392 F.3d 244, 

246 (7th Cir. 2004) (“When a pattern of responses itself 

reveals classified information, the only way to keep secrets is 

to maintain silence uniformly.”). And finally we observe that 

“[i]n most cases,” an assertion by the government that 

disclosure of “communications collections and analysis 

capabilities” would jeopardize the “intelligence collection 

mission” may be sufficient to foreclose discovery and sustain 

a claim of privilege. Halkin v. Helms, 598 F.2d 1, 9 (D.C. Cir. 

1978) (internal quotations omitted) (upholding, after an in 

camera examination, an assertion of the state secrets privilege 

with respect to the mere fact of interception of plaintiff’s 

foreign communications). 

For the reasons stated above the judgment of the district 

court on Counts I, II, and III is reversed and the case is 

Remanded. 
SENTELLE, Chief Judge, dissenting: While the majority’s

opinion correctly describes the case before us and correctly

identifies the controlling authorities, in my view the controlling

authorities lead in the opposite direction than that taken by the

majority. In other words, I would reach the same conclusion as

the district court and therefore must respectfully dissent.

As the majority correctly notes, the Supreme Court’s most

recent pronouncement relevant to the sufficiency of a complaint

to meet the notice standard of pleading required by Rule 8 of the

Federal Rules of Civil Procedure is Bell Atlantic Corp. v.

Twombly, 127 S. Ct. 1955 (2007). In Twombly, the Court

addressed the sufficiency of the complaint alleging liability

under § 1 of the Sherman Act, 15 U.S.C. § 1, which “requires a

‘contract, combination . . ., in restraint of trade or commerce.’”

Twombly, 550 U.S. at 544, 127 S. Ct. at 1961. In that case, the

Supreme Court considered specifically “whether a § 1 complaint

can survive a motion to dismiss when it alleges that major

telecommunications providers engaged in certain parallel

conduct unfavorable to competition, absent some factual context

suggesting agreement, as distinct from identical, independent

action.” Id. The Court “h[e]ld that such a complaint should be

dismissed.” Id.

The immediate question concerning the application of

Twombly to the case before us is one posed by the Twombly

dissent:

Whether the Court’s actions [in Twombly] will benefit only

defendants in antitrust treble-damages cases, or whether its

test for the sufficiency of a complaint will inure to the

benefit of all civil defendants, is a question that the future

will answer.
2

Id. at 1988 (Stevens, J., dissenting).

As the majority seems to agree, nothing in the reasoning of

the Court in Twombly suggests that its applicability is limited to

antitrust litigation. Justice Souter for the Court engages in an

analysis of Civil Rules jurisprudence that seems to apply to all

litigation under the Rules, without limitation to the specific sort

of litigation then before the Court. The gist of the Court’s view

is illuminated in a footnote to the majority’s opinion responsive

to the dissent.

The dissent greatly oversimplifies matters by suggesting

that the Federal Rules somehow dispensed with the

pleading of facts altogether. While, for most types of cases,

the Federal Rules eliminated the cumbersome requirement

that a claimant “set out in detail the facts upon which he

bases his claim,” Rule 8(a)(2) still requires a “showing,”

rather than a blanket assertion, of entitlement to relief.

Without some factual allegation in the complaint, it is hard

to see how a claimant could satisfy the requirement of

providing not only “fair notice” of the nature of the claim,

but also “grounds” on which the claim rests. [The Rule]

“contemplate[s] the statement of circumstances,

occurrences, and events in support of the claim presented”

and does not authorize a pleader’s “bare averment that he

wants relief and is entitled to it.”

Id. at 1965 n.3 (citations omitted) (quoting Conley v. Gibson,

355 U.S. 41, 47 (1957) (emphasis added by Twombly), and 5

WRIGHT & MILLER § 1202, at 94). This analysis is not limited

by the Court to one type of litigation subject to the Rules, but

would appear to apply to all such litigation.
3

Rule 8(a) expressly establishes the following general rules

of pleading:

Claim for Relief. A pleading that states a claim for relief

must contain:

(1) a short and plain statement of the grounds for the court’s

jurisdiction, unless the court already has jurisdiction and the

claim needs no new jurisdictional support;

(2) a short and plain statement of the claim showing that the

pleader is entitled to relief; and

(3) a demand for the relief sought, which may include relief

in the alternative or different types of relief.

The Twombly Court goes on to note “[t]he need at the

pleading stage for allegations plausibly suggesting” the elements

of the underlying theory of relief. 127 S. Ct. at 1966. This

plausibility standard applied by the Court “reflects the threshold

requirement of Rule 8(a)(2) that the ‘plain statement’ possess

enough heft to ‘sho[w] that the pleader is entitled to relief.’” Id.

The applicability of this plausibility standard to litigation

outside the Sherman Act context is established by the Twombly

Court’s further analysis in its reference to the “practical

significance of the Rule 8 entitlement requirement.” Id. The

Court relies upon Dura Pharmaceuticals, Inc. v. Brudo, 544

U.S. 336 (2005), wherein it had explained “that something

beyond the mere possibility of loss causation must be alleged,

lest a plaintiff with ‘a largely groundless claim’ be allowed to

‘take up the time of a number of other people, with the right to

do so representing an in terrorem increment of the settlement

value.’” Twombly, 127 S. Ct. at 1966 (quoting Dura

Pharmaceuticals, 544 U.S. at 347) (other citations omitted).

That said, the Court concluded that “‘a district court must retain
4

the power to insist upon some specificity in pleading before

allowing a potentially massive factual controversy to proceed.’”

Twombly, 127 S. Ct. at 1967 (quoting Associated Gen.

Contractors of Cal., Inc. v. Carpenters, 459 U.S. 519, 528 n.17

(1983)). That same concern, in my view, animates the need for

the ability of the district court to reject an implausible claim

against the United States in, for example, the constitutional

rights and national security area such as the case before us.

Therefore, Twombly commands, I think sensibly, that the district

court should be permitted to dismiss a complaint resting on

implausible expressions of information and belief such as the

one before us today as not stating a justiciable controversy, or

otherwise put, a claim for relief.

I recognize, as the majority correctly notes, that we

analyzed Twombly in Aktieselskabet AF 21. November 2001 v.

Fame Jeans, Inc., 525 F.3d 8 (D.C. Cir. 2008). Therein we held

that “Twombly leaves the long-standing fundamentals of notice

pleading intact.” Id. at 15. I must agree that Twombly does not

set some new standard of pleading, but I do believe that it

reiterates a longstanding plausibility doctrine. Even before

Twombly, courts could dismiss cases for lack of jurisdiction if

the cases are “patently insubstantial.” Neitzke v. Williams, 490

U.S. 319, 327 n.6 (1989); see also Hagans v. Lavine, 415 U.S.

528, 536 (1974). Likewise, the court could enter such dismissal

when the case is “obviously frivolous,” Hannis Distilling Co. v.

Baltimore, 216 U.S. 285, 288 (1910). I further recognize that

complaints can be based on “information and belief.” I do not,

however, think that in light of Twombly and the other cited

authorities that “information and belief” can be a fanciful,

paranoid, or irrational belief based on nothing more than the

plaintiff’s internal belief structure and still be sufficient to

subject a defendant, or in this case the taxpayers, to the costs and

burdens of litigation. Tooley’s allegations are of this sort. 
5

Tooley would have us hold that he has adequately alleged

unlawful wiretapping of an entire extended family, including at

least nine separate phone lines based on no apparent source of

belief other than “problematic phone connections, including

telltale intermittent clicking noises.” I note in passing that there

is no reason to believe that wiretaps even cause problematic

connections or intermittent clicking sounds. Indeed, if this were

the case, wiretaps would hardly have proved to be the useful tool

they have in both criminal law enforcement investigations under

Title III of the Omnibus Crime Control and Safe Streets Act of

1968, §§ 2510-2520, Pub. L. No. 90-351, or national security

under the Foreign Intelligence Surveillance Act, 50 U.S.C. §§

1801-1862. However, even if plaintiff were correct in that

supposition, he offers no basis for his “belief” that the taps, even

if they occurred, were done illegally by the defendants named in

the complaint.

The rest of his allegations are based on similar fanciful

beliefs. As the majority notes, he interprets the presence of a

black Crown Victoria in the vicinity of his home in the time

surrounding a presidential visit in the same geographic area to

mean that he is under an unlawful surveillance. While I readily

concur that black Crown Victorias are often used by law

enforcement, I cannot conclude that Tooley’s alleging (by

affidavit rather than in the complaint) that one such vehicle was

in the vicinity of his residence is a plausible allegation that an

unlawful surveillance of him by the defendants has occurred.

Plaintiff’s allegations concerning airport searches and his

conclusion concerning “watch lists” based on such searches add

nothing to the sufficiency of this complaint. Stripped of his

conclusory adjectives and adverbs, his allegations say that he

has been searched or detained at airports. It is unlikely that

anyone who flies with any frequency has not. If there is

anything unconstitutional about any particular search to which
6

he has been subjected, then he should allege the facts that

demonstrate its unconstitutionality. On the face of the

complaint, he has not done so. If his allegations concerning

airport searches were sufficient, I venture to say that many

members of this court could file a similarly sufficient complaint.

In short, I would apply the plausibility doctrine illuminated

by the Supreme Court’s opinion in Twombly and conclude that

the district court correctly dismissed the complaint. I would

affirm, and therefore I must respectfully dissent.