An End to Grandma’s Terror Watch List Fight

     HOUSTON (CN) – A Texas grandmother cannot sue the government over a naval officer’s idle threat to put her on the terrorist watch list, a federal judge ruled.
     In a 2010 federal complaint, Vivian Chisholm asked the court to declare “that she is not a terrorist” and remove her name from Homeland Security’s terrorist watch list.
     Chisholm claimed Petty Officer Lancelot Coley became hostile when her granddaughter, a high school recruit, attempted to drop out of the Navy’s Delayed Entry Program. The grandmother stepped in after Coley verbally lashed out at both her granddaughter and the girl’s cancer-stricken mother, according to Chisholm’s complaint.
     Chisholm said Coley threatened to add her name to the terrorist watch list and have her arrested by Homeland Security. Chisholm does not name Coley as a defendant in her complaint.
     Though U.S. District Judge Melinda Harmon gave Chisholm some hope of relief last year in refusing to grant the government summary judgment, she dismissed the case Monday.
     In the August 2011 decision, Harmon had said “that, in a post-September 11th world, a naval officer’s unreasonable threat to place a private person on Homeland Security’s terrorist watchlist may be considered extreme and outrageous, exceeding ‘all possible bounds of decency.'”
     But on Monday, the court found that it lacks subject matter jurisdiction.
     “Plaintiff’s counsel admits that he ‘has not research[ed] whether this court could issue an order to Homeland Security,'” Harmon wrote. “The court has and the answer is ‘No.’ Nor may the court enter a judgment declaring whether plaintiff is a terrorist.”
     Chisholm’s request falls outside the reach of the Declaratory Judgment Act, according to the 12-page order.
     “Here, whether plaintiff is a ‘terrorist’ is not a legal right implicated in her case against the United States,” Harmon wrote. “Defendant has no defined legal interest in this case in whether plaintiff is a terrorist, nor does defendant assert that she is one. Indeed, other than the fact that ‘terrorism’ is widely denounced and the label most often is applied to those guilty of criminal activity, plaintiff has not shown the definite legal consequences of being called, or thought of, as a terrorist.”
     Chisholm also failed to show that her name was ever added to the watch list, a development that the government says Coley could not produce.
     “Coley had the general authority to recruit, to respond to recruits’ requests, to speak with recruits’ parents or relatives, and attempt to persuade recruits to abide by their decision to enter the Navy,” Harmon wrote. “He did not have the authority to threaten placement on the ‘terrorist list’ or to ruin careers.”
     Because Coley acted outside the scope of his employment with the Navy, Chisholm’s claim against the government under the Federal Tort Claims Act (FTCA) fails and sovereign immunity applies, the judge found.
     “His threats to have Chisholm arrested and placed on the Department of Homeland Security terrorist watchlist were idle and empty because he had no authority or ability to carry them out,” Harmon wrote. “Coley led Chisholm to believe that she had in fact been reported to Homeland Security as a terrorist, but he could not have done so and did not ever do so. A suit against the United States for Officer Coley’s alleged conduct is barred by the misrepresentation and deceit exceptions to the FTCA, Title 28 U.S.C. Section 2680(h). This court lacks jurisdiction.”

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