Reporter’s Surveillance Claims Rejected by Fourth Circuit

RICHMOND, Va. (CN) – The Fourth Circuit on Friday upheld the dismissal of a lawsuit brought by a former CBS News investigative reporter claiming she was spied on by the Obama administration.

Former CBS News investigative correspondent Sharyl Attkisson during a broadcast of “CBS This Morning” on Jan. 13, 2002. (Associated Press/CBS, John P. Filo)

Sharyl Attkisson claimed the federal government under former President Barack Obama began spying on her after she published a story about its botched Operation Fast and Furious, a so-called “gun-walking operation” in which firearms were sold to straw buyers in the hope they’d eventually be tracked to Mexican drug cartel leaders, leading to their arrests. The operation ended in the death of Border Patrol agent Brian Terry.

Attkisson, now the host of “Full Measure with Sharyl Attkisson,” which is broadcast by the conservative Sinclair Broadcast Group, also reported extensively on the Benghazi embassy attack in which diplomat Christopher Stevens and others were killed.

She sued former Attorney General Eric Holder, the FBI, Verizon and others in 2015, claiming the telecommunications company assisted the feds in their illegal monitoring

Shortly after the publication of her 2011 report on Operation Fast and Furious, Attkisson alleges she noticed several “anomalies” in electronic devices at her Leesburg, Virginia home that she says were the result of wiretaps and computer tracking tools: bad reception, clicking sounds, a lap top turning on and off on its own and television interference.

She handed over her work laptop to an expert for a forensic analysis. CBS, her employer until 2014, then publicly announced that Attkisson’s computer had been accessed using “sophisticated methods” without authorization on several occasions.

But in November 2017, a federal judge dismissed most of Attkisson’s claims, saying that resolving them would require an “inquiry into the sensitive executive branch discussions and decisions” and that would overstep the authority of the court. H

Her remaining claims were later dismissed due to a “multitude of procedural violations,” according to court records.

On Friday, the Fourth Circuit upheld the lower court’s dismissal in a 2-1 ruling  

U.S. Circuit Judge Robert B. King, a Bill Clinton appointee, wrote that the procedural problems were enough to dismiss the case brought by Attkisson, her husband and her daughter.

“The plaintiffs contravened multiple rules and court orders while failing to alert the district court to any problems justifying their actions,” he wrote for the majority. “And they acted in the face of explicit instructions from the court and the magistrate judge. Those circumstances support the dismissal with prejudice of their claims.”

King went on to slam Attkisson for her “significant periods of inactivity during three full years of litigation” and the “unjustifiably broad discovery requests” despite reprimand from the court, among other issues.

He was joined in the majority by U.S. Circuit Judge Diana Motz, another Clinton appointee.  

But U.S. Circuit Judge James A. Wynn, Jr., an Obama appointee, dissented and compared the government’s legal battle against Attkisson’s case to a strategy used by University of North Carolina basketball coach Dean Smith.  

“When we saw the fours go up, game’s over,” Wynn wrote, quoting former UNC forward David Chadwick on the Hall of Fame coach’s technique known as “four corners,” which was used to run out the clock at the end of a winning game.

He said the government, much like the UNC basketball team back in the day, was using legal techniques to make things more difficult for Attkisson.  

“Attkisson never got a meaningful opportunity to pursue her claims because the government did everything in its power to run out the clock,” he wrote. “And just as the Tar Heels had great success running the four corners, the government’s strategy worked.”

Wynn said the journalist’s legal efforts were rebuffed by the government in a way that manipulated the legal system to the government’s advantage and the majority ruling failed to honor Fourth Circuit precedent.

“This court long has held that plaintiffs—like Attkisson— who state a plausible claim that unnamed defendants violated their constitutional or statutory rights are entitled to a meaningful opportunity to engage in discovery,” he wrote.

Wynn added, “Not only should we disapprove of the tactics the government used to run out the clock on Attkisson’s claims, but we should also reject the troubling ‘game plan’ it provided for the government and private parties to prevent disclosure of—and, therefore, responsibility for—their potentially unconstitutional or illegal electronic surveillance activities.”

Attempts to reach Attkisson and the FBI were not immediately returned Friday.

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