Man Can Sue Over Fallout From Saying the ‘B’ Word

(CN) - A split panel of the D.C. Circuit revived a lawsuit brought by a man who said the government illegally wiretapped his phone, placed a radio tracking device on his car and put him on a terror watch list - all because he uttered the word "bomb" in a benign conversation with a Southwest Airlines representative.

Scott Tooley said he called the airline in 2002 to buy tickets for a flight to Nebraska. At the end of the call, the representative allegedly asked him if he had any "comments, questions or suggestions." Tooley claimed he told her that, in the wake of the Sept. 11 terrorist attacks, Southwest should screen "everything," and that without proper security, passengers were "less safe due to the potential that those who wish to harm American citizens could put a bomb on a plane."

The alarmed representative allegedly declared, "You said the 'b' word, you said the 'b' word," and put him on hold. After 20 minutes, Tooley hung up.

More than a year later, Tooley said, government authorities wiretapped his phone and placed him on "one or more terrorist watch lists." He also accused federal agents of tagging his vehicle, improperly detaining and searching him at airports, and ordering police to monitor his house during former President Bush's visit to Louisville.

The district court dismissed his lawsuit, saying he lacked standing to sue for wiretapping, invasion of privacy and free-speech violations. The court said it was "altogether possible" that Tooley had been wiretapped, but he failed to provide any evidence tracing it back to a federal agent. The lower court cited a jurisdiction problem in dismissing Tooley's watch-list claim.

On appeal, Tooley argued that the lower court had applied "liberal requirements of notice pleading" and had misunderstood his complaint.

"Thin as Tooley's claims appear," Judge Williams wrote, "we agree and therefore reverse and remand the case."

Dissenting Judge Sentelle recognized that complaints can be based on "information and belief," but added: "I do not, however, think 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 taxpayers, to the costs and burdens of litigation."

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