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In the United States District Court for the District of Columbia

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In the United States District Court for the District of Columbia IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STEVEN J. HATFILL, M.D., Plaintiff, v. JOHN ASHCROFT, in his individual capacity; Civ. A. No. 03-1793 (RBW) ATTORNEY GENERAL ALBERTO (Judge Walton) GONZALES, in his official capacity; U.S. DEPARTMENT OF JUSTICE; FEDERAL BUREAU OF INVESTIGATION; TIMOTHY BERES, in his individual and official capacities; DARRELL DARNELL, in his individual and official capacities; VAN HARP, in his individual capacity; TRACY HENKE, in her individual and official capacities; an unknown number of UNKNOWN EMPLOYEES OR AGENTS OF THE FEDERAL BUREAU OF INVESTIGATION; and an unknown number of UNKNOWN EMPLOYEES OR AGENTS OF THE DEPARTMENT OF JUSTICE, Defendants FIRST AMENDED COMPLAINT INTRODUCTION 1. This case involves a sustained course of willful and intentional misconduct by law enforcement officials who placed the public image of their agencies above their duty to respect the privacy and liberty of an innocent U.S. citizen. The context for the defendants’ illegal and unconstitutional actions was the government’s official investigation into the deadly anthrax mailings of 2001 – an investigation that was code-named “Amerithrax.” 2. With our nation still shaken by the terror attacks of September 11, 2001, the anthrax mailings created enormous public anxiety, as well as considerable political pressure to identify and bring the mailers to justice. Unfortunately, the government has failed to make any substantial progress in solving the case in more than four years. No one could possibly be more disappointed about that than Dr. Steven Hatfill. 3. Beginning in the late winter and spring of 2002, the FBI and Department of Justice became increasingly concerned about the widespread perception that they were incapable of solving the anthrax attacks. As a consequence, they intentionally and willfully leaked to innumerable reporters information about the plaintiff, Dr. Steven Hatfill, and about investigative interest in Dr. Hatfill. These leaks – which have certainly numbered in the hundreds since 2002 and which have continued even into this year – were calculated to create in the public mind the impression that the defendants were making progress in solving the anthrax case. Because these hundreds of leaks disclosed information that was protected from disclosure under the Privacy Act of 1974, they were unlawful as well as unjust. 4. In addition, the defendants conducted a highly visible campaign to curtail Dr. Hatfill’s liberty without due process of law. This they achieved not only by repeatedly leaking sensitive information about him to the news media, but also by going out of their way to make their investigation of Dr. Hatfill as conspicuous as possible to the general public. For many months the defendants subjected Dr. Hatfill to “surveillance” that was so conspicuous as to be inconsistent with any genuine desire to obtain useful evidence. The defendants also contrived to have Dr. Hatfill fired from his job training first responders at Louisiana State University (“LSU”); thereafter, Dr. Hatfill’s hopes of new employment were dashed when the team 2 “surveilling” him ambushed the potential employer in the hotel where the interview was taking place. 5. Despite their awareness of these abuses, senior DOJ and FBI officials have consistently failed to prevent, punish, condemn, or even seriously investigate the injustices done to Dr. Hatfill. Indeed, after the defendants’ leaks put Dr. Hatfill at the center of the media’s coverage of the investigation, defendant Ashcroft poured gasoline on the fire by going on national television and naming Dr. Hatfill a “person of interest” in the investigation. This action, by the nation’s highest ranking law enforcement officer, was tantamount to an official declaration of open season on Dr. Hatfill. In the hierarchical culture of the FBI and DOJ, the Attorney General’s personal participation was sufficient to eliminate any hesitation that some subordinates might otherwise have felt about discussing Dr. Hatfill’s status in the investigation publicly. Indeed, on the one occasion when an FBI official criticized the public disclosure of “persons of interest,” that official was reprimanded by FBI Director Mueller for having even implied that Attorney General Ashcroft had acted improperly. By refusing to implement any remedial measures either to prevent disclosure of Amerithrax information or to mitigate the damage caused by such disclosures, the defendants sustained and encouraged the pattern of abuse and misconduct described herein. JURISDICTION AND VENUE 6. This case arises under the United States Constitution and the laws of the United States and presents a federal question within this Court’s jurisdiction under Article III of the Constitution, 28 U.S.C. §§ 1331 & 1343(a)(3), and 5 U.S.C. § 552a(g)(1)(C), (g)(1)(D), and (g)(4). Plaintiff seeks actual damages as well as fees and costs against the DOJ and the FBI for the 3 intentional and willful violation of the Privacy Act, 5 U.S.C. § 552a(g)(4). The Court has authority to grant declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. The Court has authority to grant injunctive relief under the federal courts’ inherent equitable powers. Plaintiff also seeks monetary damages against federal employees acting under color of legal authority, in their individual capacities, under Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). However, in accordance with the Court’s September 2005 order dismissing the Bivens claims, plaintiff includes them herein only for the purpose of preserving the claims for appeal if any of his damages remain uncompensated after the trial of this matter. 7. Venue is proper in this district under 28 U.S.C. § 1391(e) and 5 U.S.C.§ 552a(g)(5). PARTIES 8. Plaintiff Dr. Steven J. Hatfill is a citizen of the United States. Dr. Hatfill is a medical doctor and a scientist who has devoted a significant portion of his professional life to protecting the United States, its citizens, and its military and civilian officers from the dangers of infectious diseases. He has acquired expertise in issues pertaining to biological warfare. As a result of defendants’ unconstitutional, illegal, and unethical acts, Dr. Hatfill has been unable to secure full-time employment since August 2002 and has suffered severe emotional distress. 9. During times relevant to this First Amended Complaint, defendant John Ashcroft was the Attorney General of the United States. In that capacity, he headed the United States Department of Justice, which is the agency of the United States government responsible for enforcement of federal criminal laws and domestic terrorism investigations. Mr. Ashcroft had ultimate authority for supervising all of the operations and functions of the Department of 4 Justice, including the FBI, which is the principal investigatory arm of the Department of Justice. Defendant Ashcroft retired in 2004 and was replaced by Defendant Alberto Gonzales, the current Attorney General of the United States. Defendants Ashcroft and Gonzales were, in their respective turns, the highest-ranking law enforcement officers in the United States. 10. It is the Attorney General’s responsibility not only to enforce the laws but also to follow them. When he took the oath of office, defendant Ashcroft swore to faithfully uphold and defend the Constitution and the laws of the United States. In his conduct and action regarding Dr. Hatfill, Mr. Ashcroft has repeatedly and flagrantly violated that oath. Defendant Ashcroft is sued in his individual capacity for money damages, declaratory relief, and injunctive relief. Defendant Gonzales, as the federal official ultimately responsible for correcting the abuses described herein, is sued in his official capacity for declaratory and injunctive relief. 11. During times relevant to this First Amended Complaint, defendant Van Harp was the Assistant Director in Charge of the FBI’s Washington, D.C. Field Office, out of which the Amerithrax investigation was based. In May 2003, he retired from the FBI. Reporters, however, have continued to call defendant Harp to ask for information about the anthrax investigation, even after his retirement. Defendant Harp is sued in his individual capacity for money damages, declaratory relief, and injunctive relief. 12. During times relevant to this First Amended Complaint, defendant Tracy Henke was Principal Deputy Assistant Attorney General for the Office of Justice Programs within DOJ. She is currently the Deputy Associate Attorney General in the Office of the Associate Attorney General. She is sued in her individual capacity for money damages, and in her individual and official capacities for declaratory and injunctive relief. 5 13. During times relevant to this First Amended Complaint, defendant Timothy Beres served as Acting Director of DOJ’s Office for Domestic Preparedness. On or about March 1, 2003, the Office of Domestic Preparedness became part of the Department of Homeland Security, where Mr. Beres continues to work. Defendant Beres is sued in his individual capacity for money damages, and in his individual and official capacities for declaratory and injunctive relief. 14. During times relevant to this First Amended Complaint, defendant Darrell Darnell was an employee of the Department of Justice who also worked in the Office for Domestic Preparedness. On or about March 1, 2003, the Office of Domestic Preparedness became part of the Department of Homeland Security, where defendant Darnell now works in the Infrastructure Protection Division. Defendant Darnell is sued in his individual capacity for money damages, and in his individual and official capacities for declaratory and injunctive relief. 15. The true names and capacities of the individual defendants sued as Unknown Employees or Agents of the DOJ and Unknown Employees or Agents of the FBI are unknown to the plaintiff. On information and belief, plaintiff alleges that such defendants are legally responsible for each of the acts and/or omissions causing the claimed damages.
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