1:17-cv-00364-LMB-JFA) SHARYL THOMPSON ATTKISSON v. ERIC HIMPTON HOLDER, JR., Individually

FILED: May 17, 2019
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
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No. 18-1677
(1:17-cv-00364-LMB-JFA)
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SHARYL THOMPSON ATTKISSON; JAMES HOWARD ATTKISSON;
SARAH JUDITH STARR ATTKISSON
Plaintiffs - Appellants
v.
ERIC HIMPTON HOLDER, JR., Individually; PATRICK R. DONAHOE,
Individually; UNKNOWN NAMED AGENTS OF THE DEPARTMENT OF
JUSTICE, In their individual capacities; UNKNOWN NAMED AGENTS OF
THE UNITED STATES POSTAL SERVICE, In their individual capacities;
UNKNOWN NAMED AGENTS OF THE UNITED STATES, In their individual
capacities; VERIZON VIRGINIA LLC; FEDERAL BUREAU OF
INVESTIGATION; MCI COMMUNICATIONS SERVICES, INC., d/b/a Verizon
Business Services; CELLCO PARTNERSHIP, d/b/a Verizon Wireless
Defendants - Appellees
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O R D E R
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The court grants the appellants’ petition for panel rehearing for the limited
purpose of amending footnote 8 of the majority opinion to read as follows:
In their appellate brief, the plaintiffs suggested — apparently for the
first time — that Holder and Donahoe “might” have directly

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intercepted, used, or disclosed the plaintiffs’ electronic
communications. See Br. of Appellants 33 n.6. The Consolidated
Complaint, however, fails to support that idle speculation or reflect
such a claim. And in their petition for rehearing of May 6, 2019, the
plaintiffs have suggested — again for the first time — that qualified
immunity does not attach if the unlawfulness of an alleged act is clear
and the availability of a remedy is the only dispute. See Pet. for Reh’g
10-11. Although Holder and Donahoe squarely raised — in the district
court and again in this Court — the qualified immunity defense we have
adopted, the plaintiffs opted not to heretofore present their
counterargument. They have thus forfeited any such contention.
No member of the court requested a poll on the petition for rehearing en
banc. As such, the court denies the petition for rehearing en banc.
Entered at the direction of Judge King with the concurrence of Judge Motz
and Judge Wynn.
For the Court
/s/ Patricia S. Connor, Clerk

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