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Court Nixes Wiretap Suit Over ‘Bomb’ Reference

(CN) - The D.C. Circuit dismissed as "patently insubstantial" a man's claim that he was the target of a massive government surveillance program after he innocently dropped the word "bomb" in a conversation with an airline representative.

Scott Tooley claimed a Southwest Airlines representative, after helping him book tickets over the phone, asked if he had any "comments, questions, or suggestions."

Tooley allegedly told her that the airline should screen "everything" in the wake of the Sept. 11 terrorist attacks, and that without proper security, "those who wish to harm American citizens could put a bomb on the plane."

The airline representative "became alarmed and ... repeatedly said, 'you said the 'b' word, you said the 'b' word,'" Tooley claimed.

She placed him on hold, and after 20 minutes, Tooley hung up.

That call allegedly prompted the government to place Tooley on a terrorist watch list and wiretap his phones a year and a half later. He said he could hear "telltale intermittent clicking noises," indicating that the lines had been bugged.

He also accused government agents of placing tracking devices in his and his wife's cars, and parking outside his house the week before former President George W. Bush visited Louisville, Tooley's home city.

Tooley sued various government officials for constitutional and right-to-privacy violations, claiming he had been wiretapped in retaliation for his conversation with the airline representative.

A panel of the Washington, D.C.-based appeals court revived Tooley's claims on a 2-1 vote in February, saying the lower court had misunderstood the claims, "thin" as they appeared. The court later agreed to a rehearing in light of the Supreme Court's ruling in Ashcroft v. Iqbal, which addressed pleading standards.

Tooley fared worse in round two, with the D.C. Circuit affirming dismissal of his complaint on the grounds that it presented "no federal question suitable for decision."

"We recognize that in a nation of 300 million people, with millions of government employees, some are bound at any given moment to be acting unwisely, foolishly, counterproductively, mistakenly, maliciously, viciously, even inanely," Judge Williams wrote.

"But the particular combination of sloth, fanaticism, inanity and technical genius alleged here seems to us to move these allegations into the realm of claims 'flimsier than doubtful or questionable,' not realistically distinguishable from allegations of 'little green men' of the sort that Justice Souter recognized in Iqbal as properly dismissed on the pleadings."

The ruling echoes Chief Judge Sentelle's dissent in the February panel decision, when he urged courts to dismiss claims based on "a fanciful, paranoid, or irrational belief based on nothing more than the plaintiff's internal belief structure."

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