Yassir Fazaga v. Fbi ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
YASSIR FAZAGA; ALI UDDIN MALIK; No. 12-56867
YASSER ABDELRAHIM,
Plaintiffs-Appellees, D.C. No.
8:11-cv-00301-
v. CJC-VBK
FEDERAL BUREAU OF
INVESTIGATION; CHRISTOPHER A.
WRAY, Director of the Federal
Bureau of Investigation, in his
official capacity; PAUL DELACOURT,
Assistant Director in Charge, Federal
Bureau of Investigation’s Los
Angeles Division, in his official
capacity; PAT ROSE; KEVIN
ARMSTRONG; PAUL ALLEN,
Defendants,
and
BARBARA WALLS; J. STEPHEN
TIDWELL,
Defendants-Appellants.
2 FAZAGA V. WALLS
YASSIR FAZAGA; ALI UDDIN MALIK; No. 12-56874
YASSER ABDELRAHIM,
Plaintiffs-Appellees, D.C. No.
8:11-cv-00301-
v. CJC-VBK
FEDERAL BUREAU OF
INVESTIGATION; CHRISTOPHER A.
WRAY, Director of the Federal
Bureau of Investigation, in his
official capacity; PAUL DELACOURT,
Assistant Director in Charge, Federal
Bureau of Investigation’s Los
Angeles Division, in his official
capacity; J. STEPHEN TIDWELL;
BARBARA WALLS,
Defendants,
and
PAT ROSE; KEVIN ARMSTRONG;
PAUL ALLEN,
Defendants-Appellants.
FAZAGA V. WALLS 3
YASSIR FAZAGA; ALI UDDIN MALIK; No. 13-55017
YASSER ABDELRAHIM,
Plaintiffs-Appellants, D.C. No.
8:11-cv-00301-
v. CJC-VBK
FEDERAL BUREAU OF
INVESTIGATION; CHRISTOPHER A. OPINION
WRAY, Director of the Federal
Bureau of Investigation, in his
official capacity; PAUL DELACOURT,
Assistant Director in Charge, Federal
Bureau of Investigation’s Los
Angeles Division, in his official
capacity; J. STEPHEN TIDWELL;
BARBARA WALLS; PAT ROSE; KEVIN
ARMSTRONG; PAUL ALLEN; UNITED
STATES OF AMERICA,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted December 7, 2015
Pasadena, California
Filed February 28, 2019
4 FAZAGA V. WALLS
Before: Ronald M. Gould and Marsha S. Berzon, Circuit
Judges and George Caram Steeh III,* Senior District Judge.
Opinion by Judge Berzon
SUMMARY**
Constitutional Law / Foreign Intelligence
Surveillance Act
The panel affirmed in part and reversed in part the district
court’s judgment in favor of the United States, the FBI, and
federal officials in a putative class action alleging that an FBI
investigation involved unlawful searches and anti-Muslim
discrimination.
Plaintiffs are three Muslim residents of Southern
California who alleged that the FBI paid a confidential
informant to conduct a covert surveillance program that
gathered information about Muslims based solely on their
religious identity. Plaintiffs asserted eleven claims, which
fell into two categories: claims alleging unconstitutional
searches, and claims alleging unlawful religious
discrimination. The district court dismissed all but one of
plaintiffs’ claims on the basis of the state secrets privilege,
*
The Honorable George Caram Steeh III, Senior District Judge for
the U.S. District Court for the Eastern District of Michigan, sitting by
designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
FAZAGA V. WALLS 5
and allowed only the Foreign Intelligence Surveillance Act
(“FISA”) claim against the FBI Agent Defendants to proceed.
The panel held that some of the claims the district court
dismissed on state secret grounds should not have been
dismissed outright. The panel further held that the district
court should have reviewed any state secrets evidence
necessary for a determination of whether the alleged
surveillance was unlawful following the secrecy-protective
procedure set forth in FISA. See 50 U.S.C. § 1806(f).
Section 110 of FISA, codified at 50 U.S.C. § 1810,
creates a private right of action for an individual subjected to
electronic surveillance in violation of FISA’s procedures.
Concerning the FISA claim against the Agent Defendants, the
panel considered three categories of audio and video
surveillance called in the complaint: recordings made by the
FBI informant of conversations to which he was a party;
recordings made by the informant of conversations to which
he was not a party; and recordings made by devices planted
by FBI agents. The panel concluded that the Agent
Defendants were entitled to qualified immunity as to the first
two categories of surveillance. As to the third category of
surveillance, the panel held that Agents Allen and Armstrong
were not entitled to qualified immunity, but Agents Tidwell,
Walls, and Rose were entitled to dismissal as to this category
of surveillance because plaintiffs did not plausibly allege
their involvement in this category of surveillance.
The panel next addressed the remaining claims, which
were all dismissed pursuant to the state secrets privilege.
First, the panel held that in determining sua sponte that
particular claims warranted dismissal under the state secrets
privilege, the district court erred. Second, the panel held that
6 FAZAGA V. WALLS
in enacting FISA, Congress displaced the common law
dismissal remedy created by the United States v. Reynolds,
345 U.S. 1 (1953), state secrets privilege as applied to
electronic surveillance within FISA’s purview. The panel
held that FISA’s § 1806(f) procedures were to be used when
an aggrieved person affirmatively challenges, in any civil
case, the legality of electronic surveillance or its use in
litigation, whether the challenge is under FISA itself, the
Constitution, or any other law. Third, the panel held that the
plaintiffs were considered “aggrieved” for purposes of FISA.
The panel next considered whether the claims other than
the FISA § 1810 claim must be dismissed for reasons other
than the state secrets privilege, limited to reasons raised by
the defendants’ motions to dismiss.
Addressing plaintiffs’ Fourth Amendment search
claims, the panel first held that the expungement relief
sought by plaintiffs – the expungement of all records
unconstitutionally obtained and maintained – was available
under the Constitution to remedy the alleged constitutional
violations. Because the government raised no other argument
for dismissal of the Fourth Amendment injunctive relief
claim, it should not have been dismissed. Second, the panel
held that in light of the overlap between plaintiffs’ Bivens
claim and the narrow range of the remaining FISA claims
against the Agent Defendants that can proceed, it was not
clear whether plaintiffs would continue to press this claim.
The panel declined to address whether plaintiffs’ Bivens
claim remained available after the Supreme Court’s decision
in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), and held that on
remand the district court may determine whether a Bivens
remedy is appropriate for any Fourth Amendment claim
against the Agent Defendants.
FAZAGA V. WALLS 7
Addressing plaintiffs’ claims arising from their
allegations that they were targeted for surveillance solely
because of their religion, the panel first held that the First
Amendment and Fifth Amendment injunctive relief claims
against the official-capacity defendants may go forward.
Second, concerning plaintiffs’ Bivens claims seeking
monetary damages directly under the First Amendment’s
Establishment and Free Exercise Clauses and the equal
protection component of the Fifth Amendment’s Due Process
Clause, the panel concluded that the Privacy Act and the
Religious Freedom and Restoration Act (“RFRA”), taken
together, provided an alternative remedial scheme for some,
but not all, of their Bivens claims. As to the remaining Bivens
claims, the panel remanded to the district court to determine
whether a Bivens remedy was available in light of the
Supreme Court’s decision in Abbasi. Third, concerning
plaintiffs’ 42 U.S.C. § 1985(c) claims, alleging that the Agent
Defendants conspired to deprive plaintiffs of their First and
Fifth Amendment constitutional rights, the panel held that
under Abassi, intracorporate liability was not clearly
established at the time of the events in this case and the Agent
Defendants were therefore entitled to qualified immunity
from liability under § 1985(c). The panel affirmed the district
court’s dismissal on this ground. Fourth, concerning
plaintiffs’ claims that Agent Defendants and Government
Defendants violated RFRA by substantially burdening
plaintiffs’ exercise of religion, and did so without a
compelling government interest without the least restrictive
means, the panel held that it was not clearly established in
2006 or 2007 that defendants’ covert surveillance violated
plaintiffs’ freedom of religion protected by RFRA. The panel
affirmed the district court’s dismissal of the RFRA claim as
to the Agent Defendants because they were not on notice of
a possible RFRA violation. Because the Government
8 FAZAGA V. WALLS
Defendants were not subject to the same qualified immunity
analysis and made no arguments in support of dismissing the
RFRA claim, other than the state secrets privilege, the panel
held that the complaint stated a RFRA claim against the
Government Defendants. Fifth, concerning plaintiffs’
allegation that the FBI violated the Privacy Act by collecting
and maintaining records describing how plaintiff exercised
their First Amendment rights, the panel held that plaintiffs
failed to state a claim because the sole requested remedy –
injunctive relief – is unavailable for a claimed violation of
5 U.S.C. § 552a(e)(7). Sixth, concerning plaintiffs’ claims
under the Federal Tort Claims Act (“FTCA”), the panel held
that the FTCA judgment bar provision had no application in
this case. The panel further held that it could not determine
the applicability of the FTCA’s discretionary function
exception at this stage in the litigation, and that the district
court may make a determination of applicability on remand.
The panel declined to discuss whether plaintiffs substantively
stated claims as to the state laws underlying the FTCA claim.
COUNSEL
Carl J. Nichols (argued) and Howard M. Shapiro, Wilmer
Cutler Pickering Hale and Dorr LLP, Washington, D.C.;
Katie Moran, Wilmer Cutler Pickering Hale and Dorr LLP,
Los Angeles, California; for Defendants-Appellants/Cross-
Appellees Barbara Walls and J. Stephen Tidwell.
Alexander H. Cote (argued), Amos A. Lowder, Angela M.
Machala, and David C. Scheper, Scheper Kim & Harris LLP,
Los Angeles, California, for Defendants-Appellants/Cross-
Appellees Pat Rose, Paul Allen, and Kevin Armstrong.
FAZAGA V. WALLS 9
Ahilan Arulanantham (argued), Peter Birbring (argued), and
Catherine A. Wagner, ACLU Foundation of Southern
California, Los Angeles, California; Ameena Mirza Qazi and
Fatima Dadabhoy, Council on American-Islamic Relations,
Anaheim, California; Dan Stormer and Mohammad Tajsar,
Hadsell Stormer Keeny & Renick LLP, Pasadena, California;
for Plaintiffs-Appellees/Cross-Appellants.
Douglas N. Letter (argued), Daniel Tenny, and Mark B.
Stern, Appellate Staff; Stephanie Yonekura, Acting United
States Attorney; Civil Division, United States Department of
Justice, Washington, D.C., for Defendants-Appellees Federal
Bureau of Investigation, Christopher A. Wray, and Paul
Delacourt.
Richard R. Wiebe, Law Office of Richard R. Wiebe, San
Francisco, California; Thomas E. Moore III, Royse Law Firm
PC, Palo Alto, California; David Greene, Andrew Crockner,
Mark Rumold, James S. Tyre, Kurt Opsahl, Lee Tien, and
Cindy Cohn, Electronic Frontier Foundation, San Francisco,
California; for Amicus Curiae Electronic Frontier
Foundation.
10 FAZAGA V. WALLS
OPINION
BERZON, Circuit Judge:
TABLE OF CONTENTS
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
I. Factual Background. . . . . . . . . . . . . . . . . . . . . . . . 16
II. Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . 21
DISCUSSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
I. The FISA Claim Against the Agent Defendants
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
A. Recordings of Conversations to Which Monteilh
Was a Party. . . . . . . . . . . . . . . . . . . . . . . . . . . 31
B. Recordings of Conversations in the Mosque
Prayer Hall to Which Monteilh Was Not a Party
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
C. Recordings Made by Planted Devices. . . . . . . 40
II. The State Secrets Privilege and FISA Preemption
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
A. The State Secrets Privilege. . . . . . . . . . . . . . . 46
FAZAGA V. WALLS 11
B. The District Court’s Dismissal of the Search
Claims Based on the State Secrets Privilege
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
C. FISA Displacement of the State Secrets Privilege
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
D. Applicability of FISA’s § 1806(f) Procedures to
Affirmative Legal Challenges to Electronic
Surveillance. . . . . . . . . . . . . . . . . . . . . . . . . . . 62
E. Aggrieved Persons. . . . . . . . . . . . . . . . . . . . . . 71
III. Search Claims. . . . . . . . . . . . . . . . . . . . . . . . . 72
A. Fourth Amendment Injunctive Relief Claim
Against the Official-Capacity Defendants. . . . 72
B. Fourth Amendment Bivens Claim Against the
Agent Defendants.. . . . . . . . . . . . . . . . . . . . . . 76
IV. Religion Claims. . . . . . . . . . . . . . . . . . . . . . . . 78
A. First Amendment and Fifth Amendment
Injunctive Relief Claims Against the Official-
Capacity Defendants. . . . . . . . . . . . . . . . . . . . 78
B. First Amendment and Fifth Amendment Bivens
Claims Against the Agent Defendants. . . . . . . 79
Cow. 42 U.S.C. § 1985(3) Claims Against the Agent
Defendants. . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
12 FAZAGA V. WALLS
D. Religious Freedom Restoration Act Claim
Against the Agent Defendants and Government
Defendants. . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
E. Privacy Act Claim Against the FBI. . . . . . . . . 92
F. FTCA Claims. . . . . . . . . . . . . . . . . . . . . . . . . . 94
1. FTCA Judgment Bar. . . . . . . . . . . . . . . . . 95
2. FTCA Discretionary Function Exception
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
V. Procedures on Remand. . . . . . . . . . . . . . . . . . . . . 97
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
FAZAGA V. WALLS 13
BERZON, Circuit Judge:
INTRODUCTION
Three Muslim residents of Southern California allege that,
for more than a year, the Federal Bureau of Investigation
(“FBI”) paid a confidential informant to conduct a covert
surveillance program that gathered information about
Muslims based solely on their religious identity. The three
plaintiffs filed a putative class action against the United
States, the FBI, and two FBI officers in their official
capacities (“Government” or “Government Defendants”), and
against five FBI agents in their individual capacities (“Agent
Defendants”). Alleging that the investigation involved
unlawful searches and anti-Muslim discrimination, they
pleaded eleven constitutional and statutory causes of action.1
The Attorney General of the United States asserted the
state secrets privilege with respect to three categories of
evidence assertedly at issue in the case, and the Government
moved to dismiss the discrimination claims pursuant to that
privilege. The Government expressly did not move to dismiss
the Fourth Amendment and Foreign Intelligence Surveillance
Act (“FISA”) unlawful search claims based on the privilege.
Both the Government and the Agent Defendants additionally
moved to dismiss Plaintiffs’ discrimination and unlawful
search claims based on arguments other than the privilege.
1
Specifically, the Plaintiffs alleged violations of the First
Amendment’s Establishment Clause and Free Exercise Clauses; the
Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.; the equal
protection component of the Fifth Amendment’s Due Process Clause; the
Privacy Act, 5 U.S.C. § 552a; the Fourth Amendment; the Foreign
Intelligence Service Act, 50 U.S.C. § 1810; and the Federal Tort Claims
Act, 28 U.S.C. § 1346.
14 FAZAGA V. WALLS
The district court dismissed all but one of Plaintiffs’
claims on the basis of the state secrets privilege—including
the Fourth Amendment claim, although the Government
Defendants had not sought its dismissal on privilege grounds.
The district court allowed only the FISA claim against the
Agent Defendants to proceed. Plaintiffs appeal the dismissal
of the majority of their claims, and the Agent Defendants
appeal the denial of qualified immunity on the FISA claim.
We conclude that some of the claims dismissed on state
secrets grounds should not have been dismissed outright.
Instead, the district court should have reviewed any state
secrets evidence necessary for a determination of whether the
alleged surveillance was unlawful following the secrecy-
protective procedure set forth in FISA. See 50 U.S.C.
§ 1806(f). After addressing Defendants’ other arguments for
dismissing Plaintiffs’ claims, we conclude that some of
Plaintiffs’ allegations state a claim while others do not.
Accordingly, we remand to the district court for further
proceedings on the substantively stated claims.
BACKGROUND
At this stage in the litigation, we “construe the complaint
in the light most favorable to the plaintiff[s], taking all [their]
allegations as true and drawing all reasonable inferences from
the complaint in [their] favor.” Doe v. United States, 419 F.3d
1058, 1062 (9th Cir. 2005). “Conclusory allegations and
unreasonable inferences, however, are insufficient to defeat
a motion to dismiss.” Sanders v. Brown, 504 F.3d 903, 910
(9th Cir. 2007).
Plaintiffs are three Muslims who were residents of
Southern California: Sheikh Yassir Fazaga, Ali Uddin Malik,
FAZAGA V. WALLS 15
and Yasser AbdelRahim. Fazaga was, at the times relevant to
this litigation, an imam at the Orange County Islamic
Foundation (“OCIF”), a mosque in Mission Viejo, California.
Malik and AbdelRahim are practicing Muslims who regularly
attended religious services at the Islamic Center of Irvine
(“ICOI”).
The complaint sought relief against the United States,
the FBI, and two federal officials named in their
official capacities, as well as five individual Agent
Defendants—Kevin Armstrong, Paul Allen, J. Stephen
Tidwell, Barbara Walls, and Pat Rose—named in their
individual capacities. Armstrong and Allen were FBI Special
Agents assigned to the Orange County areas; Tidwell was the
Assistant Director in Charge of the FBI’s Los Angeles Field
Office from August 2005 to December 2007; Walls was the
Special Agent in Charge of the FBI’s Santa Ana branch
office, a satellite office of the FBI’s Los Angeles field office;
and Rose was a Special Agent assigned to the FBI’s Santa
Ana branch office.
Because of the sensitivity of the issues in this case, we
particularly stress the usual admonition that accompanies
judicial determination on motions to dismiss a complaint: the
facts recited below come primarily from Plaintiffs’
allegations in their complaint.2 The substance of those
allegations has not been directly addressed by the defendants.
At this point in the litigation, the truth or falsity of the
allegations therefore is entirely unproven.
2
In addition to the facts alleged in the complaint, this opinion at some
points refers to facts contained in two public declarations submitted by the
Government in support of its invocation of the state secrets privilege.
16 FAZAGA V. WALLS
I. Factual Background
For at least fourteen months in 2006 and 2007, the FBI
paid a confidential informant named Craig Monteilh to gather
information as part of a counterterrorism investigation known
as Operation Flex. Plaintiffs allege that Operation Flex was
a “dragnet surveillance” program, the “central feature” of
which was to “gather information on Muslims.”3
At some point before July 2006, Stephen Tidwell, then
the Assistant Director in Charge of the FBI’s Los Angeles
Field Office, authorized first the search for an informant and
later the selection of Monteilh as that informant. Once
selected, Monteilh was supervised by two FBI handlers,
Special Agents Kevin Armstrong and Paul Allen.
In July 2006, Monteilh began attending ICOI. As
instructed by Allen and Armstrong, Monteilh requested a
meeting with ICOI’s imam, represented that he wanted to
convert to Islam, and later publicly declared his embrace of
Islam at a prayer service. Monteilh subsequently adopted the
name Farouk al-Aziz and began visiting ICOI daily, attending
prayers, classes, and special events. He also visited “with
some regularity” several other large mosques in Orange
County.
3
In a public declaration, the FBI frames Operation Flex differently,
contending that it “focused on fewer than 25 individuals and was directed
at detecting and preventing possible terrorist attacks.” The FBI maintains
that the goal of Operation Flex “was to determine whether particular
individuals were involved in the recruitment and training of individuals in
the United States or overseas for possible terrorist activity.”
FAZAGA V. WALLS 17
Armstrong and Allen closely supervised Monteilh during
the course of Operation Flex, explaining to him the
parameters and goals of the investigation. Monteilh was“to
gather information on Muslims in general,” using
information-gathering and surveillance tactics. The agents
provided him with the tools to do so, including audio and
video recording devices. They also gave Monteilh general
goals, such as obtaining contact information from a certain
number of Muslims per day, as well as specific tasks, such as
entering a certain house or having lunch with a particular
person. Sometimes, Allen and Armstrong prepared photo
arrays with hundreds of Muslim community members and
asked Monteilh to arrange the photos from most to least
dangerous.
Armstrong and Allen did not, however, limit Monteilh to
specific targets. Rather, “they repeatedly made clear that they
were interested simply in Muslims.” Allen told Monteilh,
“We want to get as many files on this community as
possible.” To the extent Allen and Armstrong expressed an
interest in certain targets, it was in particularly religious
Muslims and persons who might influence young Muslims.
When Monteilh’s surveillance activities generated
information on non-Muslims, the agents set that information
aside.
In accordance with his broad directive, Monteilh engaged
with a wide variety of individuals. As instructed by his
handlers, he attended classes at the mosque, amassed
information on Muslims’ charitable giving, attended Muslim
fundraising events, collected information on community
members’ travel plans, attended lectures by Muslim scholars,
went to daily prayers, memorized certain verses from the
Quran and recited them to others, encouraged people to visit
18 FAZAGA V. WALLS
“jihadist” websites, worked out with targeted people at a gym
to get close to them, and sought to obtain compromising
information that could be used to pressure others to become
informants. He also collected the names of board members,
imams, teachers, and other leadership figures at the mosques,
as well as the license plate numbers of cars in the mosque
parking lots during certain events.
Virtually all of Monteilh’s interactions with Muslims
were recorded. Monteilh used audio and video recording
devices provided to him by the agents, including a cellphone,
two key fobs with audio recording capabilities, and a camera
hidden in a button on his shirt. He recorded, for example, his
interactions with Muslims in the mosques, which were
transcribed and reviewed by FBI officials. He also recorded
meetings and conversations in the mosque prayer hall to
which he was not a party. He did so by leaving his
possessions behind, including his recording key fob, as
though he had forgotten them or was setting them down while
doing other things. Monteilh told Allen and Armstrong in
written reports that he was recording conversations in this
manner. The agents never told him to stop this practice, and
they repeatedly discussed with Monteilh the contents of the
recordings.
Armstrong and Allen occasionally instructed Monteilh to
use his secret video camera for specific purposes, such as
capturing the internal layout of mosques and homes. They
also told Monteilh to obtain the contact information of people
he met, and monitored his email and cellphone to obtain the
email addresses and phone numbers of the people with whom
he interacted.
FAZAGA V. WALLS 19
Although Monteilh spent the majority of his time at ICOI,
he conducted surveillance and made audio recordings in at
least seven other mosques during the investigation. During
Monteilh’s fourteen months as an informant for Operation
Flex, the FBI obtained from him hundreds of phone numbers;
thousands of email addresses; background information on
hundreds of individuals; hundreds of hours of video
recordings of the interiors of mosques, homes, businesses,
and associations; and thousands of hours of audio recordings
of conversations, public discussion groups, classes, and
lectures.
In addition to the surveillance undertaken directly by
Monteilh, Allen and Armstrong told Monteilh that electronic
surveillance equipment had been installed in at least eight
mosques in the area, including ICOI. The electronic
surveillance equipment installed at the Mission Viejo mosque
was used to monitor Plaintiff Yassir Fazaga’s conversations,
including conversations held in his office and other parts of
the mosque not open to the public.
At the instruction of Allen and Armstrong, Monteilh took
extensive handwritten notes each day about his activities and
the surveillance he was undertaking. Allen and Armstrong
met with Monteilh roughly twice each week to discuss his
assignments, give him instructions, receive his daily notes,
upload his recordings, and give him fresh devices. Monteilh
was also required to call either Allen or Armstrong each day
to apprise them of his activities. They told Monteilh that his
daily notes were read by their supervisors.
The operation began to unravel when, in early 2007,
Allen and Armstrong instructed Monteilh to begin more
pointedly asking questions about jihad and armed conflict and
20 FAZAGA V. WALLS
to indicate his willingness to engage in violence.
Implementing those instructions, Monteilh told several people
that he believed it was his duty as a Muslim to take violent
action and that he had access to weapons. Several ICOI
members reported Monteilh to community leaders. One of the
community leaders then called the FBI to report what
Monteilh was saying, and instructed concerned ICOI
members to call the Irvine Police Department, which they
did. ICOI sought a restraining order against Monteilh, which
was granted in June 2007.
Around the same time, Allen and Armstrong told
Monteilh that Barbara Walls, then Assistant Special Agent in
Charge of the FBI’s Santa Ana office, no longer trusted him
and wanted him to stop working for the FBI. In October
2007, Monteilh was told that his role in Operation Flex was
over. At one of the final meetings between Monteilh and
Agents Allen and Armstrong, Walls was present. She warned
Monteilh not to tell anyone about the operation.
Monteilh’s identity as an informant was revealed in
February 2009 in connection with a criminal prosecution for
naturalization fraud of Ahmadullah (or Ahmed) Niazi, one of
the ICOI members who had reported Monteilh’s statements
to the Irvine Police Department. FBI Special Agent Thomas
Ropel testified at a bail hearing in Niazi’s case that he had
heard several recordings between Niazi and a confidential
informant, and that the informant was the same person Niazi
had reported to the police. Ropel’s statements thus indicated
that Monteilh was a confidential informant and that he had
recorded numerous conversations for the FBI.
Several sources subsequently confirmed that Monteilh
worked for the FBI, including the FBI and Monteilh himself.
FAZAGA V. WALLS 21
Although the FBI has disclosed some information about
Monteilh’s actions as an informant, including that he created
audio and video recordings and provided handwritten notes
to the FBI, the FBI maintains that “certain specific
information” concerning Operation Flex and Monteilh’s
activities must be protected in the interest of national
security.
II. Procedural History
Plaintiffs filed the operative complaint in September
2011, asserting eleven causes of action, which fall into two
categories: claims alleging unconstitutional searches (“search
claims”) and claims alleging unlawful discrimination on the
basis of, or burdens on, or abridgement of the rights to,
religion (“religion claims”). The religion claims allege
violations of the First Amendment Religion Clauses, the
equal protection guarantee of the Due Process Clause of the
Fifth Amendment,4 the Privacy Act, the Religious Freedom
Restoration Act (“RFRA”), the Foreign Intelligence
Surveillance Act (“FISA”), and the Federal Tort Claims Act
(“FTCA”).
Plaintiffs filed the complaint as a putative class action,
with the class defined as “[a]ll individuals targeted by
Defendants for surveillance or information-gathering through
Monteilh and Operation Flex, on account of their religion,
and about whom the FBI thereby gathered personally
identifiable information.” The complaint sought injunctive
4
“The liberty protected by the Fifth Amendment’s Due Process
Clause contains within it the prohibition against denying to any person the
equal protection of the laws.” United States v. Windsor, 570 U.S. 744, 774
(2013) (citing Bolling v. Sharpe, 347 U.S. 497, 499–500 (1954)).
22 FAZAGA V. WALLS
relief for the individual Plaintiffs and the class, and damages
for themselves as individuals.5 The Agent Defendants moved
to dismiss the claims against them on various grounds,
including qualified immunity. The Government moved to
dismiss the amended complaint and for summary judgment,
arguing that Plaintiffs’ statutory and constitutional claims fail
on various grounds unrelated to the state secrets privilege.
The Government also asserted that the religion claims, but
not the search claims, should be dismissed under the Reynolds
state secrets privilege, see United States v. Reynolds, 345 U.S.
1 (1953), on the ground that litigation of the religion claims
could not proceed without risking the disclosure of certain
evidence protected by the privilege. The assertion of the state
secrets privilege was supported with a previously filed public
declaration from then-U.S. Attorney General Eric Holder; a
public declaration from Mark Giuliano, then Assistant
Director of the FBI’s Counterterrorism Division; and two
classified declarations and a classified supplemental
memorandum from Giuliano. The Attorney General asserted
the state secrets privilege over three categories of evidence:
(1) “[i]nformation that could tend to confirm or deny whether
a particular individual was or was not the subject of an FBI
counterterrorism investigation”; (2) “[i]nformation that could
tend to reveal the initial reasons (i.e., predicate) for an FBI
counterterrorism investigation of a particular person
(including in Operation Flex), any information obtained
5
The proposed class has not been certified. In addition to its
relevance to the merits of Plaintiffs’ claims, the information over which
the Government asserted the state secrets privilege may also be relevant
to the decision whether to certify the class. In addition, the scope of
privileged evidence needed to litigate the case likely will differ should
class certification be granted.
FAZAGA V. WALLS 23
during the course of such an investigation, and the status and
results of the investigation”; and (3) “[i]nformation that could
tend to reveal whether particular sources and methods were
used in a counterterrorism investigation.”
In one order, the district court dismissed the FISA claim
against the Government, brought under 50 U.S.C. § 1810,
concluding that Congress did not waive sovereign immunity
for damages actions under that statute. See Al-Haramain
Islamic Found., Inc. v. Obama (Al-Haramain II), 705 F.3d
845, 850–55 (9th Cir. 2012). Plaintiffs do not challenge this
dismissal. In the same order, the district court permitted
Plaintiffs’ FISA claim against the Agent Defendants to
proceed, rejecting the argument that the Agent Defendants
were entitled to qualified immunity.
In a second order, the district court dismissed all the other
claims in the case on the basis of the Reynolds state secrets
privilege—including the Fourth Amendment claim, for which
the Government Defendants expressly did not seek dismissal
on that ground. Relying “heavily” on the classified
declarations and supplemental memorandum, the district
court concluded “that the subject matter of this action,
Operation Flex, involves intelligence that, if disclosed, would
significantly compromise national security.” It held that the
Government Defendants would need to rely on the privileged
material to defend against Plaintiffs’ claims, and that the
privileged evidence was so inextricably tied up with
nonprivileged material that “the risk of disclosure that further
litigation would engender [could not] be averted through
protective orders or restrictions on testimony.” The district
court declined to use, as a substitute for dismissal, the in
camera, ex parte procedures set out in § 1806(f) of FISA, on
24 FAZAGA V. WALLS
the ground that FISA’s procedures do not apply to non-FISA
claims.
The Agent Defendants timely filed notices of appeal from
the denial of qualified immunity on Plaintiffs’ FISA claim.
The district court then approved the parties’ stipulation to
stay all further proceedings related to the remaining FISA
claim pending resolution of the Agent Defendants’ appeal
and, at Plaintiffs’ request, entered partial final judgment
under Federal Rule of Civil Procedure 54(b), allowing
immediate appeal of the majority of Plaintiffs’ claims. The
Plaintiffs’ appeal and the Agent Defendants’ appeal from the
denial of qualified immunity on the FISA claim were
consolidated and are both addressed in this opinion.
DISCUSSION
We begin with the only claim to survive Defendants’
motions to dismiss in the district court: the FISA claim
against the Agent Defendants. After addressing the FISA
claim, we turn to Plaintiffs’ argument that in cases
concerning the lawfulness of electronic surveillance, the ex
parte and in camera procedures set out in § 1806(f) of FISA
supplant the dismissal remedy otherwise mandated by the
state secrets evidentiary privilege. See infra Part II. We then
proceed to evaluate Defendants’ other arguments for
dismissal of the search and religion claims. See infra Parts
III–IV. Finally, we explain the procedures to be followed on
remand. See infra Part V.
I. The FISA Claim Against the Agent Defendants
Section 110 of FISA, codified at 50 U.S.C. § 1810,
creates a private right of action for an individual subjected to
FAZAGA V. WALLS 25
electronic surveillance in violation of FISA’s procedures. It
provides, in pertinent part:
An aggrieved person . . . who has been
subjected to an electronic surveillance or
about whom information obtained by
electronic surveillance of such person has
been disclosed or used in violation of section
1809 of this title shall have a cause of action
against any person who committed such
violation . . . .
50 U.S.C. § 1810.
This statutory text refers to another section, § 1809. That
section, in turn, proscribes as criminal offenses two types of
conduct: (1) “intentionally . . . engag[ing] in electronic
surveillance under color of law except as authorized by
[FISA, the Wiretap Act, the Stored Communications Act, or
the pen register statute,] or any express statutory
authorization,” and (2) “intentionally . . . disclos[ing] or
us[ing] information obtained under color of law by electronic
surveillance, knowing or having reason to know that the
information was obtained through electronic surveillance”
without authorization. 50 U.S.C. § 1809(a).
To determine whether Plaintiffs plausibly allege a cause
of action under § 1810, we must decide (1) whether Plaintiffs
are “aggrieved persons” within the meaning of the statute,
(2) whether the surveillance to which they were subjected
qualifies as “electronic surveillance,” and (3) whether the
complaint plausibly alleges a violation of 50 U.S.C. § 1809.
26 FAZAGA V. WALLS
An “aggrieved person” is defined as “a person who is the
target of an electronic surveillance or any other person whose
communications or activities were subject to electronic
surveillance.” 50 U.S.C. § 1801(k).6 Plaintiffs allege in
extensive detail in the complaint that they were subjected to
many and varied instances of audio and video surveillance.
The complaint’s allegations are sufficient if proven to
establish that Plaintiffs are “aggrieved persons.”
The complaint also adequately alleges that much of the
surveillance as described constitutes “electronic surveillance”
as defined by FISA. FISA offers four definitions of electronic
surveillance. 50 U.S.C. § 1801(f). Only the fourth is
potentially at stake in this case:
the installation or use of an electronic,
mechanical, or other surveillance device in the
United States for monitoring to acquire
information, other than from a wire or radio
communication, under circumstances in which
a person has a reasonable expectation of
privacy and a warrant would be required for
law enforcement purposes.
Id. § 1801(f)(4) (emphases added). The key question as to the
presence of “electronic surveillance” under this definition is
whether the surveillance detailed in the complaint was
undertaken in circumstances in which (1) Plaintiffs had a
reasonable expectation of privacy and (2) a warrant would be
required for law enforcement purposes. If, as the complaint
6
“‘Person’ means any individual, including any officer or employee
of the Federal Government, or any group, entity, association, corporation,
or foreign power.” 50 U.S.C. § 1801(m).
FAZAGA V. WALLS 27
alleges, no warrant was in fact obtained, such electronic
surveillance would constitute a violation of § 1809. Id.
§ 1809(a).
The parties, citing ACLU v. NSA, 493 F.3d 644, 657 n.16,
683 (6th Cir. 2007), agree that these legal standards from
FISA—reasonable expectation of privacy and the warrant
requirement—are evaluated just as they would be under a
Fourth Amendment analysis. The Agent Defendants argue,
however, that they are entitled to qualified immunity on
Plaintiffs’ FISA claim. Plaintiffs accept that qualified
immunity can apply under FISA but maintain that the Agent
Defendants are not entitled to immunity.7
The Agent Defendants are entitled to qualified immunity
from damages unless Plaintiffs “plead[] facts showing (1) that
the official[s] violated a statutory or constitutional right, and
(2) that the right was ‘clearly established’ at the time of the
challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735
(2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). We are permitted to “exercise [our] sound discretion
in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.” Pearson v.
Callahan, 555 U.S. 223, 236 (2009). Because, as we conclude
in infra Part II.E, the applicability of FISA’s alternative
7
We have found only one decision, unpublished, addressing whether
qualified immunity is an available defense to a FISA claim. See Elnashar
v. U.S. Dep’t of Justice, No. CIV.03-5110(JNE/JSM), 2004 WL 2237059,
at *5 (D. Minn. Sept. 30, 2004) (dismissing a FISA claim on grounds of
qualified immunity because there was no evidence the defendant “would
have known that the search of [plaintiff’s] apartment would have required
a warrant”), aff’d on other grounds, 446 F.3d 792 (8th Cir. 2006). As the
issue is not contested, we do not decide it.
28 FAZAGA V. WALLS
procedures for reviewing state secrets evidence turns on
whether the surveillance at issue constitutes “electronic
surveillance” within the meaning of FISA,8 we will begin
with the first prong, even though we conclude that the Agent
Defendants are ultimately entitled to qualified immunity on
the second prong.
For purposes of qualified immunity, a right is clearly
established if, “at the time of the challenged conduct, ‘[t]he
contours of [a] right [are] sufficiently clear’ that every
‘reasonable official would have understood that what he is
doing violates that right.’” al-Kidd, 563 U.S. at 741
(alterations in original) (quoting Anderson v. Creighton,
483 U.S. 635, 640 (1987)). “This inquiry . . . must be
undertaken in light of the specific context of the case, not as
a broad general proposition.” Saucier v. Katz, 533 U.S. 194,
201 (2001). “We do not require a case directly on point, but
existing precedent must have placed the statutory or
constitutional question beyond debate.” al-Kidd, 563 U.S. at
741.
“The operation of [the qualified immunity] standard,
however, depends substantially upon the level of generality
at which the relevant ‘legal rule’ is to be identified.”
Anderson, 483 U.S. at 639. Often, whether a right is “clearly
established” for purposes of qualified immunity will turn on
the legal test for determining whether that right has been
8
Again, as we noted above, “electronic surveillance” as defined by
FISA must fall under one of four types of government action. 50 U.S.C.
§ 1801(f). The relevant one for our purposes involves “the installation or
use of an electronic, mechanical, or other surveillance device . . . under
circumstances in which a person has a reasonable expectation of privacy
and a warrant would be required for law enforcement purposes.” Id.
§ 1801(f)(4).
FAZAGA V. WALLS 29
violated. For claims of excessive force, for example, “[i]t is
sometimes difficult for an officer to determine how the
relevant legal doctrine . . . will apply to the factual situation
the officer confronts.” Saucier, 533 U.S. at 205. “The
calculus of reasonableness must embody allowance for the
fact that police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and
rapidly evolving—about the amount of force that is necessary
in a particular situation.” Graham v. Connor, 490 U.S. 386,
396–97 (1989). By contrast, “[w]ith few exceptions, the
question whether a warrantless search of a home is reasonable
and hence constitutional must be answered no,” Kyllo v.
United States, 533 U.S. 27, 31 (2001), as “the Fourth
Amendment has drawn a firm line at the entrance to the
house,” Payton v. New York, 445 U.S. 573, 590 (1980). Thus,
where the test for determining whether the right in question
has been violated is framed as a standard, rather than a rule,
officials are given more breathing room to make “reasonable
mistakes.” Saucier, 533 U.S. at 205. In those instances, we
require a higher degree of factual specificity before
concluding that the right is “clearly established.” But where
the right at issue is clear and specific, officials may not claim
qualified immunity based on slight changes in the
surrounding circumstances.9
9
The Supreme Court made a similar observation in an analogous
context—determining whether a state court has unreasonably applied
clearly established federal law for purposes of habeas review under the
Antiterrorism and Effective Death Penalty Act: “[T]he range of reasonable
judgment can depend in part on the nature of the relevant rule. If a legal
rule is specific, the range may be narrow. . . . Other rules are more general,
and their meaning must emerge in application over the course of time.”
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
30 FAZAGA V. WALLS
To properly approach this inquiry, we consider separately
three categories of audio and video surveillance alleged in the
complaint: (1) recordings made by Monteilh of conversations
to which he was a party; (2) recordings made by Monteilh of
conversations to which he was not a party (i.e., the recordings
of conversations in the mosque prayer hall); and
(3) recordings made by devices planted by FBI agents in
Fazaga’s office and AbdelRahim’s house, car, and phone.10
We conclude that the Agent Defendants are entitled to
dismissal on qualified immunity grounds of Plaintiffs’ § 1810
claim as to the first two categories of surveillance. As to the
third category of surveillance, conducted via devices planted
in AbdelRahim’s house and Fazaga’s office, Allen and
Armstrong are not entitled to qualified immunity. But
Tidwell, Walls, and Rose are entitled to dismissal as to this
category, because Plaintiffs do not plausibly allege their
involvement in this category of surveillance, and so have not
10
We note that, in their “Claims for Relief,” under the FISA cause of
action, Plaintiffs recite that “Defendants, under color of law, acting
through Monteilh” violated FISA (emphasis added). But the complaint
specifically recites facts relating to devices allegedly planted directly by
the Agent Defendants. Under the Federal Rules of Civil Procedure, it is
the facts alleged that circumscribe the reach of the complaint for purposes
of a motion to dismiss. See Skinner v. Switzer, 562 U.S. 521, 530 (2011).
We also note that there may be a fourth category of surveillance here
at issue: video recordings of the interiors of individuals’ homes. These
recordings are not given meaningful attention in the parties’ briefs, and we
cannot determine from the complaint if Plaintiffs mean to allege that
Monteilh video recorded the layouts of houses into which he was invited,
or that he entered the houses without permission. Although at this stage
we do not construe the complaint as asserting claims based on this fourth
category of surveillance, our opinion does not foreclose Plaintiffs from
clarifying these and other allegations on remand.
FAZAGA V. WALLS 31
“pleaded facts showing . . . that [those] officials violated a
statutory or constitutional right.” al-Kidd, 563 U.S. at 735.
A. Recordings of Conversations to Which Monteilh
Was a Party
A reasonable expectation of privacy exists where “a
person ha[s] exhibited an actual (subjective) expectation of
privacy,” and “the expectation [is] one that society is
prepared to recognize as ‘reasonable.’” Katz v. United States,
389 U.S. 347, 361 (1967) (Harlan, J., concurring); see, e.g.,
California v. Ciraolo, 476 U.S. 207, 211) (1986) (describing
Justice Harlan’s test as the “touchstone of Fourth Amendment
analysis”). Generally, an individual “has no privacy interest
in that which he voluntarily reveals to a government agent,”
a principle known as the invited informer doctrine. United
States v. Wahchumwah, 710 F.3d 862, 867 (9th Cir. 2013)
(citing Hoffa v. United States, 385 U.S. 293, 300–02 (1966));
see also United States v. Aguilar, 883 F.2d 662, 697–98 (9th
Cir. 1989), superseded on other grounds by statute,
Immigration Reform and Control Act of 1986, Pub. L. No.
99-603, 100 Stat. 3359, as recognized in United States v.
Gonzalez-Torres, 309 F.3d 594 (9th Cir. 2002). Plaintiffs
contend, however, that the invited informer doctrine does not
apply to the recordings made by Monteilh of conversations to
which he was a party because the surveillance was conducted
with discriminatory purpose and therefore in bad faith.
Bad faith of this sort does not, however, implicate the
reasonable privacy expectation protected by the Fourth
Amendment or violate the Fourth Amendment’s warrant
requirement. There is, to be sure, an important “limitation[]
on the government’s use of undercover informers to infiltrate
an organization engaging in protected first amendment
32 FAZAGA V. WALLS
activities”: the government’s investigation must not be
conducted “for the purpose of abridging first amendment
freedoms.” Aguilar, 883 F.2d at 705. But that limitation on
voluntary conversations with undercover informants—
sometimes referred to as a “good faith” requirement,11 e.g.,
United States v. Mayer, 503 F.3d 740, 751 (9th Cir. 2007);
Aguilar, 883 F.2d at 705—is imposed by the First
Amendment, not the Fourth Amendment. As that
constitutional limitation is not grounded in privacy
expectations, it does not affect the warrant requirement under
the Fourth Amendment.
Under the appropriate Fourth Amendment precepts,
“[u]ndercover operations, in which the agent is a so-called
‘invited informer,’ are not ‘searches’ under the Fourth
Amendment.” Mayer, 503 F.3d at 750 (emphasis added)
(quoting Aguilar, 883 F.2d at 701). “[A] defendant generally
has no privacy interest”—not merely an unreasonable
privacy interest—“in that which he voluntarily reveals to a
government agent.” Wahchumwah, 710 F.3d at 867 (emphasis
added). In other words, use of a government informant under
the invited informer doctrine—even if not in good faith in the
First Amendment sense—does not implicate the privacy
interests protected by the Fourth Amendment. Because our
inquiry under FISA is confined to whether a reasonable
expectation of privacy was violated and whether a warrant
was therefore required, see ACLU, 493 F.3d at 657 n.16, 683,
the First Amendment-grounded good-faith limitation does not
apply to our current inquiry.
11
We use this term in the remainder of this discussion to refer to the
constitutional limitation on the use of informants discussed in the text.
FAZAGA V. WALLS 33
Under the invited informer doctrine, Plaintiffs lacked a
reasonable expectation of privacy in the conversations
recorded by Monteilh to which he was a party. The Agent
Defendants are therefore not liable under FISA for this
category of surveillance.
B. Recordings of Conversations in the Mosque Prayer
Hall to Which Monteilh Was Not a Party
Plaintiffs did have a privacy-grounded reasonable
expectation that their conversations in the mosque prayer hall
would not be covertly recorded by an individual who was not
present where Plaintiffs were physically located and was not
known to be listening in.12 The Agent Defendants are,
however, entitled to qualified immunity with respect to this
category of surveillance under the second prong of the
qualified immunity standard—whether “the right was ‘clearly
established’ at the time of the challenged conduct.” al-Kidd,
563 U.S. at 735 (quoting Harlow, 457 U.S. at 818).
Again, the relevant questions here on the merits of the
FISA and Fourth Amendment issues are whether “a person
ha[s] exhibited an actual (subjective) expectation of privacy,”
and whether “the expectation [is] one that society is prepared
to recognize as ‘reasonable.’” Katz, 389 U.S. at 361 (Harlan,
J., concurring). To first determine whether an individual has
“exhibited an actual expectation of privacy,” we assess
whether “he [sought] to preserve [something] as private.”
Bond v. United States, 529 U.S. 334, 338 (2000) (alterations
12
We are not suggesting that the recording have been impermissible
under FISA and the Fourth Amendment if the Agent Defendants had
obtained a warrant based on probable cause. Here, however, no warrant
was obtained.
34 FAZAGA V. WALLS
in original) (quoting Smith v. Maryland, 442 U.S. 735, 740
(1979)). Based on the rules and customs of the mosque, and
the allegations in the complaint, we have no trouble
determining that Plaintiffs manifested an actual, subjective
expectation of privacy in their conversations there.
The mosque prayer hall is not an ordinary public place. It
is a site of religious worship, a place for Muslims to come
together for prayer, learning, and fellowship. Plaintiffs allege
that the prayer hall “is [a] sacred space where particular rules
and expectations apply. Shoes are prohibited, one must be in
a state of ablution, discussing worldly matters is discouraged,
and the moral standards and codes of conduct are at their
strongest.” Notably, “[g]ossiping, eavesdropping, or
talebearing (namima—revealing anything where disclosure
is resented) is forbidden.” And ICOI, which Malik and
AbdelRahim attended, specifically prohibited audio and video
recording in the mosque without permission. When, on a rare
occasion, an outside entity did record an event or a speaker,
ICOI put up signs to notify congregants. Furthermore,
Plaintiffs explain in their complaint that halaqas, which are
small group meetings during which participants “discuss
theology or matters related to the practice of Islam,” are
understood by mosque attendees to be environments that
“ensure some measure of confidentiality among
participants.”13
These privacy-oriented rules and customs confirm for us
that the Plaintiffs held a subjective expectation of privacy in
their conversations among themselves while in the prayer
hall.
13
We understand that description to imply that Monteilh recorded
conversations that occurred during halaqas in the mosque prayer hall.
FAZAGA V. WALLS 35
That Plaintiffs were not alone in the mosque prayer hall
does not defeat their claim that they manifested an
expectation of privacy.14 “Privacy does not require solitude.”
United States v. Taketa, 923 F.2d 665, 673 (9th Cir. 1991).
For example, “a person can have a subjective expectation that
his or her home will not be searched by the authorities, even
if he or she has invited friends into his or her home.” Trujillo
v. City of Ontario, 428 F. Supp. 2d 1094, 1102 (C.D. Cal.
2006), aff’d sub nom. Bernhard v. City of Ontario, 270 F.
App’x 518 (9th Cir. 2008). The same principle applies to
certain other enclosed locations in which individuals have
particular reason to expect confidentiality and repose.15
14
The Agent Defendants cite Smith v. Maryland, 442 U.S. at 740–41,
to support the proposition that the unattended recordings in the mosque
prayer hall did not invade Plaintiffs’ reasonable expectation of privacy.
Smith and its progeny do not apply here. Smith concerned a pen register
installed and used by a telephone company, and held that an individual
enjoys no Fourth Amendment protection “in information he voluntary
turns over to third parties.” Id. at 743–44. But, as the Fourth Circuit has
stressed, Smith and the cases relying on it are concerned with “whether the
government invades an individual’s reasonable expectation of privacy
when it obtains, from a third party, the third party’s records.” United
States v. Graham, 824 F.3d 421, 426 (4th Cir. 2016) (en banc) (emphasis
added), abrogated on other grounds by Carpenter v. United States, 138 S.
Ct. 2206 (2018). Cases “involv[ing] direct government surveillance
activity,” including surreptitiously viewing, listening to, or recording
individuals—like the one before us—present a wholly separate question.
Id.
15
Taketa, for example, held that a state employee could hold an
expectation of privacy in his office even though the office was shared with
two others. 923 F.2d at 673. “[E]ven ‘private’ business offices are often
subject to the legitimate visits of coworkers, supervisors, and the public,
without defeating the expectation of privacy unless the office is ‘so open
to fellow employees or the public that no expectation of privacy is
reasonable.’” Id. (quoting O’Connor v. Ortega, 480 U.S. 709, 717–18
(1987)).
36 FAZAGA V. WALLS
Finally, the case law distinguishes between an expectation
of privacy in a place and an expectation of privacy as to
whether an individual’s conversations or actions in that place
would be covertly recorded by persons not themselves present
in that place.16 The Supreme Court has recently emphasized
the significant difference between obtaining information in
person and recording information electronically. See
Carpenter, 138 S. Ct. at 2219 (“Unlike the nosy neighbor
who keeps an eye on comings and goings, they are ever alert,
and their memory is nearly infallible.”). Here, given the
intimate and religious nature of the space and the express
prohibition on recording, Plaintiffs have adequately alleged
that they subjectively believed their conversations would not
be covertly recorded by someone not present in the prayer
hall for transmission to people not present in the prayer hall.17
Having concluded that Plaintiffs exhibited a subjective
expectation of privacy, we now consider whether it was “one
that society is prepared to recognize as ‘reasonable.’” Katz,
389 U.S. at 361 (Harlan, J., concurring). In assessing whether
16
See also Taketa, 923 F.2d at 676 (“Taketa has no general privacy
interest in [his co-worker’s] office, but he may have an expectation of
privacy against being videotaped in it.”); Trujillo, 428 F. Supp. 2d at 1102
(considering the secret installation and use of a video camera in a police
department’s men’s locker room, and explaining that it was “immaterial”
that the plaintiffs changed their clothes in the presence of others, because
“[a] person can have a subjective expectation of privacy that he or she will
not be covertly recorded, even though he or she knows there are other
people in the locker room” (emphasis added)).
17
The complaint alleges that Plaintiffs lost “confidence in the mosque
as a sanctuary” after learning of Monteilh’s surveillance. This feeling of
the loss of privacy reinforces the conclusion that Plaintiffs exhibited an
actual expectation of privacy in their conversations in the mosque before
the alleged surveillance took place.
FAZAGA V. WALLS 37
an individual’s expectation of privacy is reasonable, context
is key. See O’Connor, 480 U.S. at 715. “Although no single
rubric definitively resolves which expectations of privacy are
entitled to protection, the analysis is informed by historical
understandings ‘of what was deemed an unreasonable search
and seizure when [the Fourth Amendment] was adopted.’”
Carpenter, 138 S. Ct. at 2213–14 (alteration in original)
(footnote omitted) (quoting Carroll v. United States, 267 U.S.
132, 149 (1925)). Relevant here is the principle that “the
extent to which the Fourth Amendment protects people may
depend upon where those people are.” Minnesota v. Carter,
525 U.S. 83, 88 (1998) (emphasis added). We thus “assess the
nature of the location where [the] conversations were
seized”—here, the mosque prayer hall. United States v.
Gonzalez, Inc., 412 F.3d 1102, 1116–17 (9th Cir. 2005),
amended on denial of reh’g, 437 F.3d 854 (9th Cir. 2006).
The sacred and private nature of the houses of worship
Plaintiffs attended distinguishes them from the types of
commercial and public spaces in which courts have held that
individuals lack a reasonable expectation of privacy.18 United
States v. Gonzalez, 328 F.3d 543 (9th Cir. 2003), for example,
held that the defendant had no reasonable expectation of
privacy in “a large, quasi-public mailroom at a public hospital
during ordinary business hours.” Id. at 547. The mailroom
had open doors, was visible to the outside via large windows,
and received heavy foot traffic. Id. In addition to focusing on
the physical specifics of the mailroom, Gonzalez emphasized
18
See, e.g., In re John Doe Trader No. One, 894 F.2d 240, 243–44
(7th Cir. 1990) (holding that a rule prohibiting tape recorders on the
trading floor “aimed at various forms of distracting behavior” and
explicitly “designed to protect ‘propriety and decorum’ not privacy” did
not support a reasonable expectation of privacy).
38 FAZAGA V. WALLS
that public hospitals, “by their nature . . . create a diminished
expectation of privacy. The use of surveillance cameras in
hospitals for patient protection, for documentation of medical
procedures and to prevent theft of prescription drugs is not
uncommon.” Id. The mosque prayer halls in this case, by
contrast, have no characteristics similarly evidencing
diminished expectations of privacy or rendering such
expectations unreasonable.19 There are no urgent health or
safety needs justifying surveillance. And the use of
surveillance equipment at ICOI is not only uncommon, but
expressly forbidden.
Our constitutional protection of religious observance
supports finding a reasonable expectation of privacy in such
a sacred space, where privacy concerns are acknowledged
and protected, especially during worship and other religious
observance. Cf. Mockaitis v. Harcleroad, 104 F.3d 1522,
19
Again, the fact that many people worshipped at the mosque does
not render the Plaintiffs’ expectations of privacy in their conversations (or
at the very least from, their expectations that their conversations would not
be covertly recorded) unreasonable. In Gonzalez, Inc., for example, we
held that individuals who owned and managed a small, family-run
business with up to 25 employees had “a reasonable expectation of
privacy over the on-site business conversations between their agents.”
412 F.3d at 1116–17. The Gonzalez family, whose phone calls were
intercepted, were not alone in their place of business, and their calls could
have been overheard by others who were present. But we concluded that
they nonetheless had a reasonable expectation of privacy over their
conversations because they owned the office, had full access to the
building, and exercised managerial control over the office’s day-to-day
operations. Id. Similarly, United States v. McIntyre, 582 F.2d 1221 (9th
Cir. 1978), rejected the argument that a police officer lacked a reasonable
expectation of privacy over conversations had in his office because his
office door was open and a records clerk worked nearby in an adjacent
room. Id. at 1224. “A business office need not be sealed to offer its
occupant a reasonable degree of privacy,” we reasoned. Id.
FAZAGA V. WALLS 39
1533 (9th Cir. 1997) (holding that, based in part on “the
nation’s history of respect for religion in general,” a priest
had a reasonable expectation of privacy in his conversation
with an individual during confession), overruled on other
grounds by City of Boerne v. Flores, 521 U.S. 507 (1997).
Thus, Plaintiffs’ expectation that their conversations in the
mosque prayer hall would be confidential among participants
(unless shared by one of them with others), and so would not
be intercepted by recording devices planted by absent
government agents was objectively reasonable.
Finally, “[w]here the materials sought to be seized may be
protected by the First Amendment, the requirements of the
Fourth Amendment must be applied with ‘scrupulous
exactitude.’” Zurcher v. Stanford Daily, 436 U.S. 547, 564
(1978) (quoting Stanford v. Texas, 379 U.S. 476, 485 (1965)).
“National security cases,” like the one here, “often reflect a
convergence of First and Fourth Amendment values not
present in cases of ‘ordinary’ crime.” United States v. U.S.
District Court (Keith), 407 U.S. 297, 313 (1972). “Fourth
Amendment protections become the more necessary when the
targets of official surveillance may be those suspected of
unorthodoxy . . . .” Id. at 314.
Accordingly, we hold that Plaintiffs had a reasonable
expectation of privacy that their conversations in the mosque
prayer hall would not be covertly recorded by a government
agent not party to the conversations.
As of 2006 and 2007, however, no federal or state court
decision had held that individuals generally have a reasonable
expectation of privacy from surveillance in places of worship.
Our court had declined to read Katz as established authority
“for the proposition that a reasonable expectation of privacy
40 FAZAGA V. WALLS
attaches to church worship services open to the public.” The
Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518,
527 (9th Cir. 1989). Noting that there was a lack of clearly
established law so concluding, Presbyterian Church held that
Immigration and Naturalization Service (“INS”) officials
were entitled to qualified immunity from a Fourth
Amendment challenge to undercover electronic surveillance
of church services conducted without a warrant and without
probable cause. Id. No case decided between Presbyterian
Church and the incidents giving rise to this case decided
otherwise. And no case decided during that period addressed
circumstances more like those here, in which there are some
specific manifestations of an expectation of privacy in the
particular place of worship. Arguably pertinent was
Mockaitis, but that case concerned the confession booth, not
the church premises generally. 104 F.3d at 1533. The
circumstances here fall between Presbyterian Church and
Mockaitis, so there was no clearly established law here
applicable. The Agent Defendants are thus entitled to
qualified immunity as to this category of surveillance.
C. Recordings Made by Planted Devices
It was, of course, clearly established in 2006 and 2007
that individuals have a reasonable expectation of privacy
from covert recording of conversations in their homes, cars,
and offices, and on their phones. See, e.g., Kyllo, 533 U.S. at
31 (home); New York v. Class, 475 U.S. 106, 115 (1986)
(cars); Katz, 389 U.S. at 360–61 (Harlan, J., concurring)
(enclosed telephone booths); Taketa, 923 F.2d at 673 (office);
McIntyre, 582 F.2d at 1223–24 (office). The Agent
Defendants accept these well-established legal propositions.
But they maintain that the complaint’s allegations that the
FBI planted electronic surveillance equipment in Fazaga’s
FAZAGA V. WALLS 41
office and AbdelRahim’s house, car, and phone are too
conclusory to satisfy Iqbal’s plausibility standard, and so do
not adequately allege on the merits a violation of Plaintiffs’
rights under FISA. See al-Kidd, 563 U.S. at 735; Ashcroft v.
Iqbal, 556 U.S. 662, 678–79 (2009). We cannot agree.
Plaintiffs offer sufficient well-pleaded facts to
substantiate their allegation that some of the Agent
Defendants—Allen and Armstrong—were responsible for
planting devices in AbdelRahim’s house. Specifically, the
complaint details one occasion on which Allen and
Armstrong asked Monteilh about something that had
happened in AbdelRahim’s house that Monteilh had not yet
communicated to them, and explained that they knew about
it because they had audio surveillance in the house.
Plaintiffs also allege sufficient facts with regard to those
two Agent Defendants in support of their allegation of
electronic surveillance of Fazaga’s office in the OCIF mosque
in Mission Viejo: Allen and Armstrong told Monteilh that
electronic surveillance was “spread indiscriminately” across
“at least eight area mosques including ICOI, and mosques in
Tustin, Mission Viejo, Culver City, Lomita, West Covina,
and Upland,” and that “they could get in a lot of trouble if
people found out what surveillance they had in the mosques.”
They also instructed Monteilh to use a video camera hidden
in a shirt button to record the interior of OCIF and “get a
sense of the schematics of the place—entrances, exits, rooms,
bathrooms, locked doors, storage rooms, as well as security
measures and whether any security guards were
armed.”Armstrong later told Monteilh that he and Allen used
the information he recorded to enter OCIF.
42 FAZAGA V. WALLS
As to Tidwell, Walls, and Rose, however, the complaint
does not plausibly allege their personal involvement with
respect to the planted devices.20 The complaint details
Tidwell, Walls, and Rose’s oversight of Monteilh, including
that they read his daily notes and were apprised, through
Allen and Armstrong, of the information he collected. But the
complaint never alleges that Monteilh was involved in
planting devices in AbdelRahim’s house, car, or phone, or in
Fazaga’s office; those actions are attributed only to unnamed
FBI agents.
The complaint also offers general statements that Tidwell,
Walls, and Rose supervised Allen and Armstrong.21 But
“[g]overnment officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory
of respondeat superior.” Iqbal, 556 U.S. at 676. Instead, “a
plaintiff must plead that each Government-official defendant,
through the official’s own individual actions, has violated the
Constitution.” Id. Plaintiffs have not done so as to this
category of surveillance with regard to Tidwell, Walls, and
Rose. The complaint does not allege that the supervisors
knew of, much less ordered or arranged for, the planting of
20
Because we concluded with respect to the first two categories of
surveillance either that Plaintiffs had no reasonable expectation of privacy
or that the expectation was not clearly established in the case law at the
pertinent time, we reach the question whether Plaintiffs plausibly allege
the personal involvement of Tidwell, Wall, and Rose only with respect to
the third category of surveillance.
21
The relevant allegations were only that Walls and Rose “actively
monitored, directed, and authorized the actions of Agents Allen and
Armstrong and other agents at all times relevant in this action, for the
purpose of surveilling Plaintiffs and other putative class members because
they were Muslim” and that Tidwell “authorized and actively directed the
actions of Agents Armstrong, Allen, Rose, Walls, and other agents.”
FAZAGA V. WALLS 43
the recording devices in AbdelRahim’s home or Fazaga’s
office, so the supervisors are entitled to qualified immunity as
to that surveillance. See, e.g., Chavez v. United States,
683 F.3d 1102, 1110 (9th Cir. 2012); Ortez v. Washington
County, 88 F.3d 804, 809 (9th Cir. 1996).
In sum, Plaintiffs allege a FISA claim against Allen and
Armstrong for recordings made by devices planted by FBI
agents in AbdelRahim’s house and Fazaga’s office. As to all
other categories of surveillance, the Agent Defendants either
did not violate FISA; are entitled to qualified immunity on
the FISA claim because Plaintiffs’ reasonable expectation of
privacy was not clearly established; or were not plausibly
alleged in the complaint to have committed any FISA
violation that may have occurred.
II. The State Secrets Privilege and FISA Preemption
Having addressed the only claim to survive Defendants’
motions to dismiss in the district court, we turn to the district
court’s dismissal of the remaining claims pursuant to the state
secrets privilege.22 Plaintiffs argue that reversal is warranted
“on either of two narrower grounds.” First, Plaintiffs argue
that, at this preliminary stage, the district court erred in
concluding that further litigation would require the disclosure
of privileged information. Second, Plaintiffs maintain that the
district court should have relied on FISA’s alternative
procedures for handling sensitive national security
information. Because we agree with Plaintiffs’ second
22
Plaintiffs do not dispute at this juncture the district court’s
conclusion that the information over which the Attorney General asserted
the state secrets privilege indeed comes within the privilege. We therefore
assume as much for present purposes.
44 FAZAGA V. WALLS
argument, we do not decide the first. We therefore need not
review the Government’s state secrets claim to decide
whether the standard for dismissal at this juncture—whether
the district court properly “determine[d] with certainty . . .
that litigation must be limited or cut off in order to protect
state secrets, even before any discovery or evidentiary
requests have been made,” Mohamed v. Jeppesen Dataplan,
Inc., 614 F.3d 1070, 1081 (9th Cir. 2010) (en banc)—has
been met.
The initial question as to Plaintiffs’ second argument is
whether the procedures established under FISA for
adjudicating the legality of challenged electronic surveillance
replace the common law state secrets privilege with respect
to such surveillance to the extent that privilege allows the
categorical dismissal of causes of action. The question is a
fairly novel one. We are the first federal court of appeals to
address it. Only two district courts, both in our circuit, have
considered the issue. Those courts both held that FISA
“displace[s] federal common law rules such as the state
secrets privilege with regard to matters within FISA’s
purview.” Jewel v. NSA, 965 F. Supp. 2d 1090, 1105–06
(N.D. Cal. 2013); accord In re NSA Telecomms. Records
Litig. (In re NSA), 564 F. Supp. 2d 1109, 1117–24 (N.D. Cal.
2008). We rely on similar reasoning to that in those district
court decisions, but reach a narrower holding as to the scope
of FISA preemption.
Our analysis of this issue proceeds as follows. First, we
offer a brief review of the state secrets privilege. Second, we
discuss one reason why the district court should not have
dismissed the search claims based on the privilege. Third, we
explain why FISA displaces the dismissal remedy of the
common law state secrets privilege as applied to electronic
FAZAGA V. WALLS 45
surveillance generally. Then we review the situations in
which FISA’s procedures under § 1806(f) apply, including
affirmative constitutional challenges to electronic
surveillance. Finally, we explain why the present case fits at
least one of the situations in which FISA’s procedures apply.
Before we go on, we emphasize that although we hold
that Plaintiffs’ electronic surveillance claims are not subject
to outright dismissal at the pleading stage because FISA
displaces the state secrets privilege, the FISA procedure is,
not surprisingly, extremely protective of government secrecy.
Under that procedure, Plaintiffs’ religion claims will not go
forward under the open and transparent processes to which
litigants are normally entitled. Instead, in the interest of
protecting national security, the stringent FISA procedures
require severe curtailment of the usual protections afforded
by the adversarial process and due process. See, e.g., Yamada
v. Nobel Biocare Holding AG, 825 F.3d 536, 545 (9th Cir.
2016) (holding that the district court’s use of ex parte, in
camera submissions to support its fee order violated
defendants’ due process rights); Intel Corp. v. Terabyte Int’l,
Inc., 6 F.3d 614, 623 (9th Cir. 1993) (same); MGIC Indem.
Corp. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986) (same).
As it is Plaintiffs who have invoked the FISA procedures, we
proceed on the understanding that they are willing to accept
those restrictions to the degree they are applicable as an
alternative to dismissal, and so may not later seek to contest
them.23
23
We discuss how the district court is to apply the FISA procedures
to Plaintiffs’ surviving claims on remand in infra Part V.
46 FAZAGA V. WALLS
A. The State Secrets Privilege
“The Supreme Court has long recognized that in
exceptional circumstances courts must act in the interest of
the country’s national security to prevent disclosure of state
secrets, even to the point of dismissing a case entirely.”
Jeppesen, 614 F.3d at 1077 (citing Totten v. United States,
92 U.S. 105, 107 (1876)). Neither the Supreme Court nor this
court has precisely delineated what constitutes a state secret.
Reynolds referred to “military matters which, in the interest
of national security, should not be divulged.” 345 U.S. at 10.
Jeppesen added that not all classified information is
necessarily privileged under Reynolds. 614 F.3d at 1082. The
state secrets privilege has been held to apply to information
that would result in “impairment of the nation’s defense
capabilities, disclosure of intelligence-gathering methods or
capabilities, and disruption of diplomatic relations with
foreign governments, or where disclosure would be inimical
to national security.” Black v. United States, 62 F.3d 1115,
1118 (8th Cir. 1995) (citations and internal quotation marks
omitted). But courts have acknowledged that terms like
“military or state secrets” are “amorphous in nature,” id.
(citation omitted); the phrase “inimical to national security”
certainly is. And although purely domestic investigations with
no international connection do not involve state secrets, we
recognize that the contours of the privilege are perhaps even
more difficult to draw in a highly globalized, post-9/11
environment, where the lines between foreign and domestic
security interests may be blurred.
We do not attempt to resolve the ambiguity or to explain
definitively what constitutes a “state secret.” But we note the
ambiguity nonetheless at the outset, largely as a reminder
that, as our court has previously noted, “[s]imply saying
FAZAGA V. WALLS 47
‘military secret,’ ‘national security’ or ‘terrorist threat’ or
invoking an ethereal fear that disclosure will threaten our
nation is insufficient to support the privilege.” Al-Haramain
Islamic Found., Inc. v. Bush (Al-Haramain I), 507 F.3d 1190,
1203 (9th Cir. 2007).
Created by federal common law, the modern state secrets
doctrine has two applications: the Totten bar and the Reynolds
privilege. The Totten bar is invoked “‘where the very subject
matter of the action’ is ‘a matter of state secret.’” Id. at 1077
(quoting Reynolds, 345 U.S. at 11 n.26). It “completely bars
adjudication of claims premised on state secrets.” Id.; see also
Totten, 95 U.S. at 106–07. The Reynolds privilege, by
contrast, “is an evidentiary privilege rooted in federal
common law.” Kasza v. Browner, 133 F.3d 1159, 1167 (9th
Cir. 1998); see also Gen. Dynamics Corp. v. United States,
563 U.S. 478, 485 (2011). It “may be asserted at any time,”
and successful assertion “will remove the privileged evidence
from the litigation.” Jeppesen, 614 F.3d at 1079–80.
Here, after the Attorney General asserted the Reynolds
privilege and the Government submitted both public and
classified declarations setting out the parameters of its state
secrets contention, the Government Defendants requested
dismissal of Plaintiffs’ religion claims in toto—but not the
Fourth Amendment and FISA claims—at the pleading stage.
“Dismissal at the pleading stage under Reynolds is a drastic
result and should not be readily granted.” Jeppesen, 614 F.3d
at 1089. Only “if state secrets are so central to a proceeding
that it cannot be litigated without threatening their disclosure”
is dismissal the proper course. Id. at 1081 (quoting El-Masri
v. United States, 479 F.3d 296, 308 (4th Cir. 2007)). Because
there is a strong interest in allowing otherwise meritorious
litigation to go forward, the court’s inquiry into the need for
48 FAZAGA V. WALLS
the secret information should be specific and tailored, not
vague and general. See id. at 1081–82; In re Sealed Case,
494 F.3d 139, 144–54 (D.C. Cir. 2007).
Specifically, the Reynolds privilege will justify dismissal
of the action in three circumstances: (1) if “the plaintiff
cannot prove the prima facie elements of her claim with
nonprivileged evidence”; (2) if “the privilege deprives the
defendant of information that would otherwise give the
defendant a valid defense to the claim”; and (3) if “privileged
evidence” is “inseparable from nonprivileged information
that will be necessary to the claims or defenses” such that
“litigating the case to a judgment on the merits would present
an unacceptable risk of disclosing state secrets.” Jeppesen,
614 F.3d at 1083 (citations omitted). The district court
assumed that Plaintiffs could make a prima facie case without
resorting to state secrets evidence, but determined that the
second and third circumstances exist in this case and require
dismissal.
B. The District Court’s Dismissal of the Search
Claims Based on the State Secrets Privilege
As a threshold matter, before determining whether FISA
displaces the state secrets privilege with regard to electronic
surveillance, we first consider which of Plaintiffs’ claims
might otherwise be subject to dismissal under the state secrets
privilege. Although the Government expressly did not request
dismissal of the Fourth Amendment and FISA claims based
on the privilege, the district court nonetheless dismissed the
Fourth Amendment claim on that basis. That was error.
The Government must formally claim the Reynolds
privilege. Reynolds, 345 U.S. at 7–8. The privilege is “not
FAZAGA V. WALLS 49
simply an administrative formality” that may be asserted by
any official. Jeppesen, 614 F.3d at 1080 (quoting United
States v. W.R. Grace, 526 F.3d 499, 507–08 (9th Cir. 2008)
(en banc)). Rather, the formal claim must be “lodged by the
head of the department which has control over the matter.”
Reynolds, 345 U.S. at 8. The claim must “reflect the
certifying official’s personal judgment; responsibility for
[asserting the privilege] may not be delegated to lesser-
ranked officials.” Jeppesen, 614 F.3d at 1080. And the claim
“must be presented in sufficient detail for the court to make
an independent determination of the validity of the claim of
privilege and the scope of the evidence subject to the
privilege.” Id. Such unusually strict procedural requirements
exist because “[t]he privilege ‘is not to be lightly invoked,’”
especially when dismissal of the entire action is sought. Id.
(quoting Reynolds, 345 U.S. at 7).
Here, although the Government has claimed the Reynolds
privilege over certain state secrets, it has not sought dismissal
of the Fourth Amendment and FISA claims based on its
invocation of the privilege. In light of that position, the
district court should not have dismissed those claims. In
doing so, its decision was inconsistent with Jeppesen’s
observation that, “[i]n evaluating the need for secrecy, ‘we
acknowledge the need to defer to the Executive on matters of
foreign policy and national security and surely cannot
legitimately find ourselves second guessing the Executive in
this arena.’” 614 F.3d at 1081–82 (quoting Al-Haramain I,
507 F.3d at 1203). Just as the Executive is owed deference
when it asserts that exclusion of the evidence or dismissal of
the case is necessary to protect national security, so the
Executive is necessarily also owed deference when it asserts
that national security is not threatened by litigation.
50 FAZAGA V. WALLS
Indeed, Jeppesen cautioned that courts should work “to
ensure that the state secrets privilege is asserted no more
frequently and sweepingly than necessary.” Id. at 1082
(quoting Ellsberg v. Mitchell, 709 F.2d 51, 58 (D.C. Cir.
1983)). Dismissing claims based on the privilege where the
Government has expressly told the court it is not necessary to
do so—and, in particular, invoking the privilege to dismiss,
at the pleading stage, claims the Government has expressly
told the court it need not dismiss on grounds of
privilege—cuts directly against Jeppesen’s call for careful,
limited application of the privilege.
Although the Government Defendants expressly did not
request dismissal of the search claims under the state secrets
privilege, the Agent Defendants did so request. In declining
to seek dismissal of the search claims based on the state
secrets privilege, the Government explained:
At least at this stage of the proceedings,
sufficient non-privileged evidence may be
available to litigate these claims should they
otherwise survive motions to dismiss on non-
privilege grounds. The FBI has previously
disclosed in a separate criminal proceeding
that Monteilh collected audio and video
information for the FBI, and some of that
audio and video information was produced in
that prior case. The FBI has been reviewing
additional audio and video collected by
Monteilh for possible disclosure in connection
with further proceedings on the issue of
whether the FBI instructed or permitted
Monteilh to leave recording devices
unattended in order to collect non-consenting
FAZAGA V. WALLS 51
communications. The FBI expects that the
majority of the audio and video will be
available in connection with further
proceedings. Thus, while it remains possible
that the need to protect properly privileged
national security information might still
foreclose litigation of these claims, at present
the FBI and official capacity defendants do
not seek to dismiss these claims based on the
privilege assertion.
The Agent Defendants note that the Government focuses on
the public disclosure of recordings collected by Monteilh, and
point out that Plaintiffs also challenge surveillance conducted
without Monteilh’s involvement—namely, the planting of
recording devices by FBI agents in Fazaga’s office and
AbdelRahim’s home, car, and phone. Allegations concerning
the planting of recording devices by FBI agents other than
Monteilh, the Agent Defendants argue, are the “sources and
methods” discussed in the Attorney General’s invocation of
the privilege. The Agent Defendants thus maintain that
because the Government’s reasons for not asserting the
privilege over the search claims do not apply to all of the
surveillance encompassed by the search claims, dismissal as
to the search claims is in fact necessary.
The Agent Defendants, however, are not uniquely subject
to liability for the planted devices. The Fourth Amendment
claim against the Government Defendants likewise applies to
that category of surveillance. See infra Part III.A. The Agent
Defendants—officials sued in their individual capacities—are
not the protectors of the state secrets evidence; the
Government is. Accordingly, and because the Agent
Defendants have not identified a reason they specifically
52 FAZAGA V. WALLS
require dismissal to protect against the harmful disclosure of
state secrets where the Government does not, we decline to
accept their argument that the Government’s dismissal
defense must be expanded beyond the religion claims.24
In short, in determining sua sponte that particular claims
warrant dismissal under the state secrets privilege, the district
court erred. For these reasons, we will not extend FISA’s
procedures to challenges to the lawfulness of electronic
surveillance to the degree the Government agrees that such
challenges may be litigated in accordance with ordinary
adversarial procedures without compromising national
security.
C. FISA Displacement of the State Secrets Privilege
Before the enactment of FISA in 1978, foreign
intelligence surveillance and the treatment of evidence
implicating state secrets were governed purely by federal
common law. Federal courts develop common law “in the
absence of an applicable Act of Congress.” City of Milwaukee
v. Illinois, 451 U.S. 304, 313 (1981). “Federal common law
is,” however, “a ‘necessary expedient’ and when Congress
addresses a question previously governed by a decision rested
on federal common law the need for such an unusual exercise
of lawmaking by federal courts disappears.” Id. (citation
omitted). Once “the field has been made the subject of
24
Although the Government may assert the state secrets privilege
even when it is not a party to the case, see Jeppesen, 614 F.3d at 1080, we
have not found—and the Agent Defendants have not cited—any case
other than the one at hand in which a court granted dismissal under the
privilege as to non-Government defendants, notwithstanding the
Government’s assertion that the claims at issue may be litigated with
nonprivileged information.
FAZAGA V. WALLS 53
comprehensive legislation or authorized administrative
standards,” federal common law no longer applies. Id.
(quoting Texas v. Pankey, 441 F.2d 236, 241 (10th Cir.
1971)).
To displace federal common law, Congress need not
“affirmatively proscribe[] the use of federal common law.”
Id. at 315. Rather, “to abrogate a common-law principle, the
statute must ‘speak directly’ to the question addressed by the
common law.” United States v. Texas, 507 U.S. 529, 534
(1993) (quoting Mobil Oil Corp. v. Higginbotham, 436 U.S.
618, 625 (1978)). As we now explain, in enacting FISA,
Congress displaced the common law dismissal remedy
created by the Reynolds state secrets privilege as applied to
electronic surveillance within FISA’s purview.25
We have specifically held that because “the state secrets
privilege is an evidentiary privilege rooted in federal common
law . . . the relevant inquiry in deciding if [a statute] preempts
the state secrets privilege is whether the statute ‘[speaks]
directly to [the] question otherwise answered by federal
common law.’” Kasza, 133 F.3d at 1167 (second and third
alterations in original) (quoting County of Oneida v. Oneida
Indian Nation, 470 U.S. 226, 236–37 (1985)).26 Nonetheless,
the Government maintains, in a vague and short paragraph in
its brief, that Congress cannot displace the state secrets
25
Our holding concerns only the Reynolds privilege, not the Totten
justiciability bar.
26
Applying this principle, Kasza concluded that section 6001 of the
Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6961,
did not preempt the state secrets privilege as to RCRA regulatory material,
as “the state secrets privilege and § 6001 have different purposes.”
133 F.3d at 1168.
54 FAZAGA V. WALLS
evidentiary privilege absent a clear statement, and that,
because Plaintiffs cannot point to a clear statement,
“principles of constitutional avoidance” require rejecting the
conclusion that FISA’s procedures displace the dismissal
remedy of the state secrets privilege with regard to electronic
surveillance.
In support of this proposition, the Government cites two
out-of-circuit cases, El-Masri v. United States, 479 F.3d 296,
and Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991). El-
Masri does not specify a clear statement rule; it speaks
generally about the constitutional significance of the state
secrets privilege, while recognizing its common law roots.
479 F.3d at 303–04. Armstrong holds generally that the clear
statement rule must be applied “to statutes that significantly
alter the balance between Congress and the President,” but
does not apply that principle to the state secrets privilege.
924 F.2d at 289. So neither case is directly on point.
Under our circuit’s case law, a clear statement in the
sense of an explicit abrogation of the common law state
secrets privilege is not required to decide that a statute
displaces the privilege. Rather, if “the statute ‘[speaks]
directly to [the] question otherwise answered by federal
common law,’” that is sufficient. Kasza, 133 F.3d at 1167
(second and third alterations in original) (quoting Oneida,
470 U.S. at 236–37); see also Texas, 507 U.S. at 534.
Although we, as a three-judge panel, could not hold
otherwise, we would be inclined in any event to reject any
clear statement rule more stringent than Kasza’s “speak
directly to the question” requirement in this context.
The state secrets privilege may have “a constitutional
‘core’ or constitutional ‘overtones,’” In re NSA, 564 F. Supp.
FAZAGA V. WALLS 55
2d at 1124, but, at bottom, it is an evidentiary rule rooted in
common law, not constitutional law. The Supreme Court has
so emphasized, explaining that Reynolds “decided a purely
evidentiary dispute by applying evidentiary rules.” Gen.
Dynamics, 563 U.S. at 485. To require express abrogation, by
name, of the state secrets privilege would be inconsistent with
the evidentiary roots of the privilege.
In any event, the text of FISA does speak quite directly to
the question otherwise answered by the dismissal remedy
sometimes required by the common law state secrets
privilege. Titled “In camera and ex parte review by district
court,” § 1806(f) provides:
Whenever a court or other authority is notified
pursuant to subsection (c) or (d) of this
section, or whenever a motion is made
pursuant to subsection (e) of this section, or
whenever any motion or request is made by an
aggrieved person pursuant to any other statute
or rule of the United States or any State before
any court or other authority of the United
States or any State to discover or obtain
applications or orders or other materials
relating to electronic surveillance or to
discover, obtain, or suppress evidence or
information obtained or derived from
electronic surveillance under this chapter, the
United States district court or, where the
motion is made before another authority, the
United States district court in the same
d i s trict as the authority, shall,
notwithstanding any other law, if the Attorney
General files an affidavit under oath that
56 FAZAGA V. WALLS
disclosure or an adversary hearing would
harm the national security of the United
States, review in camera and ex parte the
application, order, and such other materials
relating to the surveillance as may be
necessary to determine whether the
surveillance of the aggrieved person was
lawfully authorized and conducted. In making
this determination, the court may disclose to
the aggrieved person, under appropriate
security procedures and protective orders,
portions of the application, order, or other
materials relating to the surveillance only
where such disclosure is necessary to make an
accurate determination of the legality of the
surveillance.
50 U.S.C. § 1806(f) (emphasis added).
The phrase “notwithstanding any other law,” the several
uses of the word “whenever,” and the command that courts
“shall” use the § 1806(f) procedures to decide the lawfulness
of the surveillance if the Attorney General asserts that
national security is at risk, confirm Congress’s intent to make
the in camera and ex parte procedure the exclusive procedure
for evaluating evidence that threatens national security in the
context of electronic surveillance-related determinations. Id.
(emphasis added). That mandatory procedure necessarily
overrides, on the one hand, the usual procedural rules
precluding such severe compromises of the adversary process
and, on the other, the state secrets evidentiary dismissal
option. See H.R. Rep. No. 95-1283, pt. 1, at 91 (1978) (“It is
to be emphasized that, although a number of different
procedures might be used to attack the legality of the
FAZAGA V. WALLS 57
surveillance, it is the procedures set out in subsections (f) and
(g) ‘notwithstanding any other law’ that must be used to
resolve the question.”).27
The procedures set out in § 1806(f) are animated by the
same concerns—threats to national security—that underlie
the state secrets privilege. See Jeppesen, 614 F.3d at 1077,
1080. And they are triggered by a process—the filing of an
affidavit under oath by the Attorney General—nearly
identical to the process that triggers application of the state
secrets privilege, a formal assertion by the head of the
relevant department. See id. at 1080. In this sense, § 1806(f)
“is, in effect, a ‘codification of the state secrets privilege for
purposes of relevant cases under FISA, as modified to reflect
Congress’s precise directive to the federal courts for the
handling of [electronic surveillance] materials and
information with purported national security implications.’”
Jewel, 965 F. Supp. 2d at 1106 (quoting In re NSA, 564 F.
Supp. 2d at 1119); see also In re NSA, 564 F. Supp. 2d at
1119 (holding that “the Reynolds protocol has no role where
section 1806(f) applies”). That § 1806(f) requires in camera
and ex parte review in the exact circumstance that could
otherwise trigger dismissal of the case demonstrates that
§ 1806(f) supplies an alternative mechanism for the
consideration of electronic state secrets evidence. Section
1806(f) therefore eliminates the need to dismiss the case
entirely because of the absence of any legally sanctioned
27
Whether “notwithstanding” language in a given statute should be
understood to supersede all otherwise applicable laws or read more
narrowly to override only previously existing laws depends on the overall
context of the statute. See United States v. Novak, 476 F.3d 1041, 1046–47
(9th Cir. 2007) (en banc). Here, the distinction does not matter, as the
Reynolds common law state secrets evidentiary privilege preceded the
enactment of FISA.
58 FAZAGA V. WALLS
mechanism for a major modification of ordinary judicial
procedures—in camera, ex parte decisionmaking.
This conclusion is consistent with the overall structure of
FISA. FISA does not concern Congress and the President
alone. Instead, the statute creates “a comprehensive, detailed
program to regulate foreign intelligence surveillance in the
domestic context.” In re NSA, 564 F. Supp. 2d at 1118. FISA
“set[s] out in detail roles for all three branches of
government, providing judicial and congressional oversight
of the covert surveillance activities by the executive branch
combined with measures to safeguard secrecy necessary to
protect national security.” Id. at 1115. And it provides rules
for the executive branch to follow in “undertak[ing]
electronic surveillance and physical searches for foreign
intelligence purposes in the domestic sphere.” Id.
Moreover, FISA establishes a special court to hear
applications for and grant orders approving electronic
surveillance under certain circumstances. See 50 U.S.C.
§ 1803. FISA also includes a private civil enforcement
mechanism, see id. § 1810, and sets out a procedure by which
courts should consider evidence that could harm the country’s
national security, see id. § 1806(f). The statute thus broadly
involves the courts in the regulation of electronic surveillance
relating to national security, while devising extraordinary,
partially secret judicial procedures for carrying out that
involvement. And Congress expressly declared that FISA,
along with the domestic law enforcement electronic
surveillance provisions of the Wiretap Act and the Stored
Communications Act, are “the exclusive means by which
electronic surveillance . . . may be conducted.” 18 U.S.C.
§ 2511(2)(f).
FAZAGA V. WALLS 59
The legislative history of FISA confirms Congress’s
intent to displace the remedy of dismissal for the common
law state secrets privilege. FISA was enacted in response to
“revelations that warrantless electronic surveillance in the
name of national security ha[d] been seriously abused.” S.
Rep. No. 95-604, pt. 1, at 7 (1978), reprinted in 1978
U.S.C.C.A.N. 3904, 3908. The Senate Select Committee to
Study Governmental Operations with Respect to Intelligence
Activities, a congressional task force formed in 1975 and
known as the Church Committee, exposed the unlawful
surveillance in a series of investigative reports. The Church
Committee documented “a massive record of intelligence
abuses over the years,” in which “the Government ha[d]
collected, and then used improperly, huge amounts of
information about the private lives, political beliefs and
associations of numerous Americans.” S. Select Comm. to
Study Governmental Operations with Respect to Intelligence
Activities, Book II: Intelligence Activities and the Rights of
Americans, S. Rep. No. 94-755, at 290 (1976). The
Committee concluded that these abuses had “undermined the
constitutional rights of citizens . . . primarily because checks
and balances designed by the framers of the Constitution to
assure accountability [were not] applied.” Id. at 289.
Urging “fundamental reform,” id. at 289, the Committee
recommended legislation to “make clear to the Executive
branch that it will not condone, and does not accept, any
theory of inherent or implied authority to violate the
Constitution,” id. at 297. Observing that the Executive would
have “no such authority after Congress has . . . covered the
field by enactment of a comprehensive legislative charter”
that would “provide the exclusive legal authority for domestic
security activities,” id. at 297, the Committee recommended
that Congress create civil remedies for unlawful surveillance,
60 FAZAGA V. WALLS
both to “afford effective redress to people who are injured by
improper federal intelligence activity” and to “deter improper
intelligence activity.” Id. at 336. Further, in recognition of the
potential interplay between promoting accountability and
ensuring security, the Committee noted its “belie[f] that the
courts will be able to fashion discovery procedures, including
inspection of material in chambers, and to issue orders as the
interests of justice require, to allow plaintiffs with substantial
claims to uncover enough factual material to argue their case,
while protecting the secrecy of governmental information in
which there is a legitimate security interest.” Id. at 337.
FISA implemented many of the Church Committee’s
recommendations. In striking a careful balance between
assuring the national security and protecting against
electronic surveillance abuse, Congress carefully considered
the role previously played by courts, and concluded that the
judiciary had been unable effectively to achieve an
appropriate balance through federal common law:
[T]he development of the law regulating
electronic surveillance for national security
purposes has been uneven and inconclusive.
This is to be expected where the development
is left to the judicial branch in an area where
cases do not regularly come before it.
Moreover, the development of standards and
restrictions by the judiciary with respect to
electronic surveillance for foreign intelligence
purposes accomplished through case law
threatens both civil liberties and the national
security because that development occurs
generally in ignorance of the facts,
circumstances, and techniques of foreign
FAZAGA V. WALLS 61
intelligence electronic surveillance not present
in the particular case before the court. . . .
[T]he tiny window to this area which a
particular case affords provides inadequate
light by which judges may be relied upon to
develop case law which adequately balances
the rights of privacy and national security.
H. Rep. No. 95-1283, pt. 1, at 21. FISA thus represents an
effort to “provide effective, reasonable safeguards to ensure
accountability and prevent improper surveillance,” and to
“strik[e] a fair and just balance between protection of national
security and protection of personal liberties.” S. Rep. No. 95-
604, pt. 1, at 7.
In short, the procedures outlined in § 1806(f) “provide[]
a detailed regime to determine whether surveillance ‘was
lawfully authorized and conducted,’” Al-Haramain I,
507 F.3d at 1205 (citing 50 U.S.C. § 1806(f)), and constitute
“Congress’s specific and detailed description for how courts
should handle claims by the government that the disclosure
of material relating to or derived from electronic surveillance
would harm national security,” Jewel, 965 F. Supp. 2d at
1106 (quoting In re NSA, 564 F. Supp. 2d at 1119). Critically,
the FISA approach does not publicly expose the state secrets.
It does severely compromise plaintiffs’ procedural rights, but
not to the degree of entirely extinguishing potentially
meritorious substantive rights.
62 FAZAGA V. WALLS
D. Applicability of FISA’s § 1806(f) Procedures to
Affirmative Legal Challenges to Electronic
Surveillance
Having determined that, where they apply, § 1806(f)’s
procedures displace a dismissal remedy for the Reynolds state
secrets privilege, we now consider whether § 1806(f)’s
procedures apply to the circumstances of this case.
By the statute’s terms, the procedures set forth in
§ 1806(f) are to be used—where the Attorney General files
the requisite affidavit—in the following circumstances:
[w]henever a court or other authority is
notified pursuant to subsection (c) or (d) of
this section, or whenever a motion is made
pursuant to subsection (e) of this section, or
whenever any motion or request is made by an
aggrieved person pursuant to any other statute
or rule of the United States or any State before
any court or other authority of the United
States or any State to discover or obtain
applications or orders or other materials
relating to electronic surveillance or to
discover, obtain, or suppress evidence or
information obtained or derived from
electronic surveillance under this chapter.
50 U.S.C. § 1806(f). From this text and the cross-referenced
subsections, we derive three circumstances in which the in
camera and ex parte procedures are to be used: when (1) a
governmental body gives notice of its intent “to enter into
evidence or otherwise use or disclose in any trial, hearing, or
other proceeding in or before any court, department, officer,
FAZAGA V. WALLS 63
agency, regulatory body, or other authority of the United
States, against an aggrieved person, any information obtained
or derived from an electronic surveillance,” id. § 1806(c)
(emphases added);28 (2) an aggrieved person moves to
suppress the evidence, id. § 1806(e); or (3) an aggrieved
person makes “any motion or request . . . pursuant to any
other statute or rule . . . to discover or obtain applications or
orders or other materials relating to electronic surveillance or
to discover, obtain, or suppress evidence or information
obtained or derived from electronic surveillance under this
chapter,” id. § 1806(f) (emphasis added).
The case at hand fits within the contemplated
circumstances in two respects. First, the Government, in its
assertion of the state secrets privilege, has notified the court
that it intends to use information obtained or derived from its
electronic surveillance of Plaintiffs as part of its defense
against Plaintiffs’ allegations. See id. § 1806(c). Specifically,
the Attorney General’s privilege assertion encompassed,
among other things, “any information obtained during the
course of” Operation Flex, the “results of the investigation,”
and “any results derived from” the “sources and methods”
used in Operation Flex. It is precisely because the
Government would like to use this information to defend
itself that it has asserted the state secrets privilege. And the
district court’s dismissal ruling was premised in part on the
potential use of state secrets material to defend the case.
28
The text of § 1806(f) refers to notice “pursuant to subsection (c) or
(d) of this section.” 50 U.S.C. § 1806(f) (emphasis added). Section
1806(d) describes verbatim the same procedures as contained in § 1806(c),
except as applied to States and political subdivisions rather than to the
United States. Id. § 1806(d). For convenience, we refer only to § 1806(c)
in this opinion, but our analysis applies to § 1806(d) with equal force.
64 FAZAGA V. WALLS
Second, in their prayer for relief, Plaintiffs have requested
injunctive relief “ordering Defendants to destroy or return any
information gathered through the unlawful surveillance
program by Monteilh and/or Operation Flex described above,
and any information derived from that unlawfully obtained
information.” Plaintiffs thus have requested, in the
alternative, to “obtain” information gathered during or
derived from electronic surveillance. See id. § 1806(f).
The Government disputes that FISA applies to this case.
Its broader contention is that § 1806(f)’s procedures do not
apply to any affirmative claims challenging the legality of
electronic surveillance or the use of information derived from
electronic surveillance, whether brought under FISA’s private
right of action or any other constitutional provision, statute,
or rule. Instead, the Government maintains, FISA’s
procedures apply only when the government initiates the legal
action, while the state secrets privilege applies when the
government defends affirmative litigation brought by private
parties.
The plain text and statutory structure of FISA provide
otherwise. To begin, the language of the statute simply does
not contain the limitations the Government suggests. As
discussed above, § 1806(f)’s procedures are to be used in any
one of three situations, each of which is separated in the
statute by an “or.” See id. The first situation—when “the
Government intends to enter into evidence or otherwise use
or disclose information obtained or derived from an
electronic surveillance . . . against an aggrieved person” in
“any trial, hearing, or other proceeding,” id. § 1806(c)
(emphasis added)—unambiguously encompasses affirmative
as well as defensive challenges to the lawfulness of
FAZAGA V. WALLS 65
surveillance.29 The conduct governed by the statutory
provision is the Government’s intended entry into evidence
or other use or disclosure of information obtained or derived
from electronic surveillance. “[A]gainst an aggrieved person”
refers to and modifies the phrase “any information obtained
or derived.” Id. As a matter of ordinary usage, the phrase
“against an aggrieved person” cannot modify “any trial,
hearing, or other proceeding in or before any court,
department, officer, agency, regulatory body, or other
authority of the United States.” Id. Evidence—such as “any
information obtained or derived from an electronic
surveillance”—can properly be said to be “against” a party.
See, e.g., U.S. Const. amend. V (“No person . . . shall be
compelled in any criminal case to be a witness against
himself . . . .”); Miranda v. Arizona, 384 U.S. 436, 460 (1966)
29
In full, § 1806(c) reads:
Whenever the Government intends to enter into
evidence or otherwise use or disclose in any trial,
hearing, or other proceeding in or before any court,
department, officer, agency, regulatory body, or other
authority of the United States, against an aggrieved
person, any information obtained or derived from an
electronic surveillance of that aggrieved person
pursuant to the authority of this subchapter, the
Government shall, prior to the trial, hearing, or other
proceeding or at a reasonable time prior to an effort to
so disclose or so use that information or submit it in
evidence, notify the aggrieved person and the court or
other authority in which the information is to be
disclosed or used that the Government intends to so
disclose or so use such information.
50 U.S.C. § 1806(c). Again, we refer to the text of § 1806(c) because
§ 1806(f)’s procedures apply “[w]henever a court or other authority is
notified pursuant to subsection (c) or (d) of this section.” Id. § 1806(f).
66 FAZAGA V. WALLS
(“[O]ur accusatory system of criminal justice demands that
the government seeking to punish an individual produce the
evidence against him by its own independent labors, rather
than by the cruel, simple expedient of compelling it from his
own mouth.” (emphasis added)). But a “trial, hearing, or
other proceeding” is not for or against either party; such a
proceeding is just an opportunity to introduce evidence. Also,
as the phrase is set off by commas, “against an aggrieved
person” is grammatically a separate modifier from the list of
proceedings contained in § 1806(f). Were the phrase meant to
modify the various proceedings, there would be no
intervening comma setting it apart.
The third situation—when a “motion or request is made
by an aggrieved person pursuant to any other statute or rule
. . . before any court . . . to discover or obtain applications or
orders or other materials relating to electronic surveillance or
to discover, obtain, or suppress evidence or information
obtained or derived from electronic surveillance under this
chapter,” id. § 1806(f)—also by its plain text encompasses
affirmative challenges to the legality of electronic
surveillance. When an aggrieved person makes such a motion
or request, or the government notifies the aggrieved person
and the court that it intends to use or disclose information
obtained or derived from electronic surveillance, the statute
requires a court to use § 1806(f)’s procedures “to determine
whether the surveillance . . . was lawfully authorized and
conducted.” Id. In other words, a court must “determine
whether the surveillance was authorized and conducted in a
manner which did not violate any constitutional or statutory
right.” S. Rep. No. 95-604, pt. 1, at 57; accord S. Rep. No.
95-701, at 63.
FAZAGA V. WALLS 67
The inference drawn from the text of § 1806 is bolstered
by § 1810, which specifically creates a private right of action
for an individual subjected to electronic surveillance in
violation of FISA. FISA prohibits, for example, electronic
surveillance of a U.S. person “solely upon the basis of
activities protected by the first amendment to the Constitution
of the United States.” 50 U.S.C. § 1805(a)(2)(A). Here,
Plaintiffs allege they were surveilled solely on account of
their religion. If true, such surveillance was necessarily
unauthorized by FISA, and § 1810 subjects any persons who
intentionally engaged in such surveillance to civil liability. It
would make no sense for Congress to pass a comprehensive
law concerning foreign intelligence surveillance, expressly
enable aggrieved persons to sue for damages when that
surveillance is unauthorized, see id. § 1810, and provide
procedures deemed adequate for the review of national
security-related evidence, see id. § 1806(f), but not intend for
those very procedures to be used when an aggrieved person
sues for damages under FISA’s civil enforcement mechanism.
Permitting a § 1810 claim to be dismissed on the basis of the
state secrets privilege because the § 1806(f) procedures are
unavailable would dramatically undercut the utility of § 1810
in deterring FISA violations. Such a dismissal also would
undermine the overarching goal of FISA more
broadly—“curb[ing] the practice by which the Executive
Branch may conduct warrantless electronic surveillance on its
own unilateral determination that national security justifies
it.” S. Rep. No. 95-604, pt. 1, at 8.
FISA’s legislative history confirms that § 1806(f)’s
procedures were designed to apply in both civil and criminal
cases, and to both affirmative and defensive use of electronic
surveillance evidence. The Senate bill initially provided a
single procedure for criminal and civil cases, while the House
68 FAZAGA V. WALLS
bill at the outset specified two separate procedures for
determining the legality of electronic surveillance.30 In the
end, the conference committee adopted a slightly modified
version of the Senate bill, agreeing “that an in camera and ex
parte proceeding is appropriate for determining the
lawfulness of electronic surveillance in both criminal and
civil cases.” H.R. Rep. No. 95-1720, at 32.
In the alternative, the Government suggests that
§ 1806(f)’s procedures for the use of electronic surveillance
in litigation are limited to affirmative actions brought directly
under § 1810. We disagree. The § 1806(f) procedures are
expressly available, as well as mandatory, for affirmative
claims brought “by an aggrieved person pursuant to any . . .
statute or rule of the United States . . . before any court . . . of
the United States.” 50 U.S.C. § 1806(f) (emphasis added).
This provision was meant “to make very clear that these
procedures apply whatever the underlying rule or statute” at
issue, so as “to prevent these carefully drawn procedures from
being bypassed by the inventive litigant using a new statute,
rule or judicial construction.” H.R. Rep. No. 95-1283, pt. 1,
at 91 (emphasis added).
30
Under the House bill, in criminal cases there would be an in camera
proceeding, and the court could, but need not, disclose the materials
relating to the surveillance to the aggrieved person “if there were a
reasonable question as to the legality of the suveillance [sic] and if
disclosure would likely promote a more accurate determination of such
legality, or if disclosure would not harm the national security.” H.R. Rep.
No. 95-1720, at 31 (1978) (Conf. Rep.), reprinted in 1978 U.S.C.C.A.N.
4048, 4060. In civil suits, there would be an in camera and ex parte
proceeding before a court of appeals, and the court would disclose to the
aggrieved person the materials relating to the surveillance “only if
necessary to afford due process to the aggrieved person.” Id. at 32.
 FAZAGA V. WALLS 69
Had Congress wanted to limit the use of § 1806(f)’s
procedures only to affirmative claims alleging lack of
compliance with FISA itself, it could have so specified, as it
did in § 1809 and § 1810. Section 1810 creates a private right
of action only for violations of § 1809. 50 U.S.C. § 1810.
Section 1809 prohibits surveillance not authorized by FISA,
the Wiretap Act, the Stored Communications Act, and the pen
register statute. Id. § 1809(a). That § 1809 includes only
certain, cross-referenced statutes while § 1810 is limited to
violations of § 1809 contrasts with the broad language of
§ 1806(f) as to the types of litigation covered—litigation
“pursuant to any . . . statute or rule of the United States.” Id.
§ 1806(f) (emphasis added).
Furthermore, if—as here—an aggrieved person brings a
claim under § 1810 and a claim under another statute or the
Constitution based on the same electronic surveillance as is
involved in the § 1810 claim, it would make little sense for
§ 1806(f) to require the court to consider in camera and ex
parte the evidence relating to electronic surveillance for
purposes of the claim under § 1810 of FISA but not permit
the court to consider the exact same evidence in the exact
same way for purposes of the non-FISA claim. Once the
information has been considered by a federal judge in camera
and ex parte, any risk of disclosure—which Congress
necessarily considered exceedingly small or it would not have
permitted such examination—has already been incurred.
There would be no point in dismissing other claims because
of that same concern.
We are not the first to hold that § 1806(f)’s procedures
may be used to adjudicate claims beyond those arising under
§ 1810. The D.C. Circuit expressly so held in ACLU
70 FAZAGA V. WALLS
Foundation of Southern California v. Barr, 952 F.2d 457
(D.C. Cir. 1991):
When a district court conducts a § 1806(f)
review, its task is not simply to decide
whether the surveillance complied with FISA.
Section 1806(f) requires the court to decide
whether the surveillance was “lawfully
authorized and conducted.” The Constitution
is law. Once the Attorney General invokes
§ 1806(f), the respondents named in that
proceeding therefore must present not only
their statutory but also their constitutional
claims for decision.
Id. at 465; accord United States v. Johnson, 952 F.2d 565,
571–73, 571 n.4 (1st Cir. 1991) (using § 1806(f)’s in camera
and ex parte procedures to review constitutional challenges
to FISA surveillance).
In sum, the plain language, statutory structure, and
legislative history demonstrate that Congress intended FISA
to displace the state secrets privilege and its dismissal remedy
with respect to electronic surveillance. Contrary to the
Government’s contention, FISA’s § 1806(f) procedures are to
be used when an aggrieved person affirmatively challenges,
in any civil case, the legality of electronic surveillance or its
use in litigation, whether the challenge is under FISA itself,
the Constitution, or any other law.31
31
Some of the Agent Defendants contend that using the § 1806(f)
procedures to adjudicate Plaintiffs’ claims would violate their due process
and Seventh Amendment jury trial rights. This argument is unpersuasive.
We and other courts have upheld the constitutionality of the FISA in
FAZAGA V. WALLS 71
E. Aggrieved Persons
We now consider more specifically whether FISA’s
§ 1806(f) procedures may be used in this case. Because the
procedures apply when evidence will be introduced “against
an aggrieved person,” 50 U.S.C. § 1806(c), and when “any
motion or request is made by an aggrieved person,” id.
§ 1806(f), Plaintiffs must satisfy the definition of an
“aggrieved person,” see id. § 1801(k).
We addressed the “aggrieved person” requirement in part
in the discussion of Plaintiffs’ § 1810 claim against the Agent
Defendants. As we there explained, because Fazaga had a
reasonable expectation of privacy in his office, and
AbdelRahim had a reasonable expectation of privacy in his
home, car, and phone, Plaintiffs are properly considered
aggrieved persons as to those categories of surveillance. See
supra Part I.C. And although we noted that the Agent
Defendants are entitled to qualified immunity on Plaintiffs’
FISA § 1810 claim with respect to the recording of
conversation in the mosque prayer halls, Plaintiffs had a
reasonable expectation of privacy in those conversations and
thus are still properly considered aggrieved persons as to that
category of surveillance as well. See supra Part I.B.
camera and ex parte procedures with regard to criminal defendants. See
United States v. Abu-Jihaad, 630 F.3d 102, 117–29 (2d Cir. 2010); United
States v. Damrah, 412 F.3d 618, 625 (6th Cir. 2005); United States v. Ott,
827 F.2d 473, 476–77, 477 n.5 (9th Cir. 1987); United States v. Belfield,
692 F.2d 141, 148–49 (D.C. Cir. 1982); United States v. Mahamud, 838 F.
Supp. 2d 881, 888–89 (D. Minn. 2012); United States v. Nicholson, 955 F.
Supp. 588, 590–92, 590 n.3 (E.D. Va. 1997) (collecting cases). Individual
defendants in a civil suit are not entitled to more stringent protections than
criminal defendants.
72 FAZAGA V. WALLS
Again, because Plaintiffs are properly considered
“aggrieved” for purposes of FISA, two of the situations
referenced in § 1806(f) are directly applicable here. The
Government intends to use “information obtained or derived
from an electronic surveillance” against Plaintiffs, who are
“aggrieved person[s].” 50 U.S.C. § 1806(c). And Plaintiffs
are “aggrieved person[s]” who have attempted “to discover or
obtain applications or orders or other materials relating to
electronic surveillance.” Id. § 1806(f).
* * * *
We next turn to considering whether the claims other than
the FISA § 1810 claim must be dismissed for reasons
independent of the state secrets privilege, limiting ourselves
to the arguments for dismissal raised in Defendants’ motions
to dismiss.
III. Search Claims
In this part, we discuss (1) the Fourth Amendment
injunctive relief claim against the official-capacity
defendants; and (2) the Fourth Amendment Bivens claim
against the Agent Defendants.
A. Fourth Amendment Injunctive Relief Claim
Against the Official-Capacity Defendants
The Government’s primary argument for dismissal of the
constitutional claims brought against the official-capacity
defendants, including the Fourth Amendment claim, is that
the injunctive relief sought—the expungement of all records
unconstitutionally obtained and maintained—is unavailable
under the Constitution. Not so.
FAZAGA V. WALLS 73
We have repeatedly and consistently recognized that
federal courts can order expungement of records, criminal
and otherwise, to vindicate constitutional rights.32 The
Privacy Act, 5 U.S.C. § 552a, which (1) establishes a set of
practices governing the collection, maintenance, use, and
dissemination of information about individuals maintained in
records systems by federal agencies, and (2) creates federal
claims for relief for violations of the Act’s substantive
provisions, does not displace the availability of expungement
32
See, e.g., United States v. Sumner, 226 F.3d 1005, 1012 (9th Cir.
2000) (“A district court has the power to expunge a criminal record under
. . . the Constitution itself.”); Burnsworth v. Gunderson, 179 F.3d 771, 775
(9th Cir. 1999) (holding that expungement of an escape conviction from
prison records was an appropriate remedy for a due process violation);
Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1275 (9th
Cir. 1998) (explaining that expungement of unconstitutionally obtained
medical records “would be an appropriate remedy for the alleged
violation”); United States v. Smith, 940 F.2d 395, 396 (9th Cir. 1991) (per
curiam) (explaining that “recognized circumstances supporting
expunction” include an unlawful or invalid arrest or conviction and
government misconduct); Fendler v. U.S. Parole Comm’n, 774 F.2d 975,
979 (9th Cir. 1985) (“Federal courts have the equitable power ‘to order the
expungement of Government records where necessary to vindicate rights
secured by the Constitution or by statute.’” (quoting Chastain v. Kelley,
510 F.2d 1232, 1235 (D.C. Cir. 1975))); Maurer v. Pitchess, 691 F.2d 434,
437 (9th Cir. 1982) (“It is well settled that the federal courts have inherent
equitable power to order ‘the expungement of local arrest records as an
appropriate remedy in the wake of police action in violation of
constitutional rights.’” (quoting Sullivan v. Murphy, 478 F.2d 938, 968
(D.C. Cir. 1973))); Shipp v. Todd, 568 F.2d 133, 134 (9th Cir. 1978) (“It
is established that the federal courts have inherent power to expunge
criminal records when necessary to preserve basic legal rights.”) (quoting
United States v. McMains, 540 F.2d 387, 389 (8th Cir. 1976)).
74 FAZAGA V. WALLS
relief under the Constitution.33 Previous cases involving
claims brought under both the Privacy Act and the
Constitution did not treat the Privacy Act as displacing a
constitutional claim, but instead analyzed the claims
separately.34 And the circuits that have directly considered
whether the Privacy Act displaces parallel constitutional
remedies have all concluded that a plaintiff may pursue a
remedy under both the Constitution and the Privacy Act.35
33
The cases cited by the Government to the contrary are inapposite.
See City of Milwaukee, 451 U.S. at 314–16 (addressing the congressional
displacement of federal common law through legislation, not the
elimination of injunctive remedies available under the Constitution); Bush
v. Lucas, 462 U.S. 367, 386–88 (1983) (discussing preclusion of a Bivens
claim for damages where Congress had already designed a comprehensive
remedial scheme, not whether a statute can displace a recognized
constitutional claim for injunctive relief); Ctr. for Nat’l Sec. Studies v.
U.S. Dep’t of Justice, 331 F.3d 918, 936–37 (D.C. Cir. 2003) (discussing
the displacement of a common law right of access to public records by the
Freedom of Information Act in a case not involving the Privacy Act or a
claim for injunctive relief from an alleged ongoing constitutional
violation).
34
See Hewitt v. Grabicki, 794 F.2d 1373, 1377, 1380 (9th Cir. 1986)
(addressing separately a claim for damages under the Privacy Act and a
procedural due process claim); Fendler, 774 F.2d at 979 (considering a
prisoner’s Privacy Act claims and then, separately, his claim for
expungement relief under the Constitution).
35
See Abdelfattah v. U.S. Dep’t of Homeland Sec., 787 F.3d 524, 534
(D.C. Cir. 2015) (“We have repeatedly recognized a plaintiff may request
expungement of agency records for both violations of the Privacy Act and
the Constitution.”); Clarkson v. IRS, 678 F.2d 1368, 1376 n.13 (11th Cir.
1982) (“[W]e of course do not intend to suggest that the enactment of the
Privacy Act in any way precludes a plaintiff from asserting a
constitutional claim for violation of his privacy or First Amendment
rights. Indeed, several courts have recognized that a plaintiff is free to
assert both Privacy Act and constitutional claims.”).
FAZAGA V. WALLS 75
In addition to its Privacy Act displacement theory, the
Government contends that even if expungement relief is
otherwise available under the Constitution, it is not available
here, as Plaintiffs “advance no plausible claim of an ongoing
constitutional violation.” Again, we disagree.
This court has been clear that a determination that records
were obtained and retained in violation of the Constitution
supports a claim for expungement relief of existing records so
obtained. As Norman-Bloodsaw explained:
Even if the continued storage, against
plaintiffs’ wishes, of intimate medical
information that was allegedly taken from
them by unconstitutional means does not itself
constitute a violation of law, it is clearly an
ongoing “effect” of the allegedly
unconstitutional and discriminatory testing,
and expungement of the test results would be
an appropriate remedy for the alleged
violation. . . . At the very least, the retention
of undisputedly intimate medical information
obtained in an unconstitutional and
discriminatory manner would constitute a
continuing “irreparable injury” for purposes
of equitable relief.
135 F.3d at 1275; see also Wilson v. Webster, 467 F.2d 1282,
1283–84 (9th Cir. 1972) (holding that plaintiffs had a right to
show that records of unlawful arrests “should be expunged,
for their continued existence may seriously and unjustifiably
serve to impair fundamental rights of the persons to whom
they relate”).
76 FAZAGA V. WALLS
In short, expungement relief is available under the
Constitution to remedy the alleged constitutional violations.36
Because the Government raises no other argument for
dismissal of the Fourth Amendment injunctive relief claim,
it should not have been dismissed.
B. Fourth Amendment Bivens Claim Against the
Agent Defendants
Alleging that the Agent Defendants violated the Fourth
Amendment, Plaintiffs seek monetary damages directly under
the Constitution under Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In
Bivens, the Supreme Court “recognized for the first time an
implied private action for damages against federal officers
alleged to have violated a citizen’s constitutional rights.”
Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). “The
purpose of Bivens is to deter individual federal officers from
committing constitutional violations.” Id. at 70.
Bivens itself concerned a Fourth Amendment violation by
federal officers. As we have recognized, a Fourth
Amendment damages claim premised on unauthorized
electronic surveillance by FBI agents and their surrogates
“fall[s] directly within the coverage of Bivens.” Gibson v.
United States, 781 F.2d 1334, 1341 (9th Cir. 1986); see also
Mitchell v. Forsyth, 472 U.S. 511, 513 (1985) (considering,
under Bivens, an alleged “warrantless wiretap” conducted in
violation of the Fourth Amendment). Recent cases, however,
have severely restricted the availability of Bivens actions for
36
We do not at this stage, of course, address whether Plaintiffs are
actually entitled to such a remedy.
FAZAGA V. WALLS 77
new claims and contexts. See Ziglar v. Abbasi, 137 S. Ct.
1843, 1856–57 (2017).37
Here, the substance of Plaintiffs’ Fourth Amendment
Bivens claim is identical to the allegations raised in their
FISA § 1810 claim. Under our rulings regarding the reach of
the § 1806(f) procedures, almost all of the search-and-seizure
allegations will be subject to those procedures. Thus,
regardless of whether a Bivens remedy is available, Plaintiffs’
underlying claim—that the Agent Defendants engaged in
unlawful electronic surveillance violative of the Fourth
Amendment—would proceed in the same way.
Moreover, if the Fourth Amendment Bivens claim
proceeds, the Agent Defendants are entitled to qualified
immunity on Plaintiffs’ Fourth Amendment Bivens claim to
the same extent they are entitled to qualified immunity on
Plaintiffs’ FISA claim. In both instances, the substantive law
derives from the Fourth Amendment, and in both instances,
government officials in their individual capacity are subject
to liability for damages only if they violated a clearly
established right to freedom from governmental intrusion
where an individual has a reasonable expectation of privacy.
See supra Part I.B. Under our earlier rulings, the FISA
search-and-seizure allegations may proceed against only two
of the Agent Defendants, and only with respect to a narrow
aspect of the alleged surveillance.
In light of the overlap between the Bivens claim and the
narrow range of the remaining FISA claim against the Agent
Defendants that can proceed, it is far from clear that Plaintiffs
37
The parties have not briefed before us the impact of Abbasi on the
Bivens claims.
78 FAZAGA V. WALLS
will continue to press this claim. We therefore decline to
address whether Plaintiffs’ Bivens claim remains available
after the Supreme Court’s decision in Abbasi. On remand, the
district court may determine—if necessary—whether a Bivens
remedy is appropriate for any Fourth Amendment claim
against the Agent Defendants.
IV. Religion Claims
The other set of Plaintiffs’ claims arise from their
allegation that they were targeted for surveillance solely
because of their religion.38 In this part, we discuss Plaintiffs’
(1) First and Fifth Amendment injunctive relief claims
against the official-capacity defendants; (2) First and Fifth
Amendment Bivens claims against the Agent Defendants;
(3) § 1985(3) claims for violations of the Free Exercise
Clause, Establishment Clause, and equal protection
guarantee; (4) RFRA claim; (5) Privacy Act claim; and
(6) FTCA claims. Our focus throughout is whether there are
grounds for dismissal independent of the Government’s
invocation of the state secrets privilege.
A. First Amendment and Fifth Amendment
Injunctive Relief Claims Against the Official-
Capacity Defendants
Plaintiffs maintain that it violates the First Amendment’s
Religion Clauses and the equal protection component of the
Fifth Amendment for the Government to target them for
surveillance because of their adherence to and practice of
38
The operative complaint alleges as a factual matter that Plaintiffs
were surveilled solely because of their religion. We limit our legal
discussion to the facts there alleged.
FAZAGA V. WALLS 79
Islam. The Government does not challenge the First and Fifth
Amendment claims substantively. It argues only that
injunctive relief is unavailable and that litigating the claims
is not possible without risking the disclosure of state secrets.
We have already concluded that injunctive relief, including
expungement, is available under the Constitution where there
is a substantively viable challenge to government action, see
supra Part III.A, and that dismissal because of the state
secrets concern was improper because of the availability of
the § 1806(f) procedures, see supra Part II. Accordingly,
considering only the arguments put forward by the
Government, we conclude that the First and Fifth
Amendment claims against the official-capacity defendants
may go forward.
B. First Amendment and Fifth Amendment Bivens
Claims Against the Agent Defendants
Plaintiffs seek monetary damages directly under the First
Amendment’s Establishment and Free Exercise Clauses and
the equal protection component of the Fifth Amendment’s
Due Process Clause, relying on Bivens v. Six Unknown
Named Agents.
We will not recognize a Bivens claim where there is “‘any
alternative, existing process for protecting’ the plaintiff’s
interests.” W. Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d
1116, 1120 (9th Cir. 2009) (quoting Wilkie v. Robbins,
551 U.S. 537, 550 (2007)). The existence of such an
alternative remedy raises the inference that Congress
“‘expected the Judiciary to stay its Bivens hand’ and ‘refrain
from providing a new and freestanding remedy in damages.’”
Id. (quoting Wilkie, 551 U.S. at 550, 554); see also Abbasi,
137 S. Ct. at 1863; Schweiker v. Chilicky, 487 U.S. 412, 423
80 FAZAGA V. WALLS
(1988). Accordingly, we “refrain[] from creating a judicially
implied remedy even when the available statutory remedies
‘do not provide complete relief’ for a plaintiff that has
suffered a constitutional violation.’” W. Radio Servs.,
578 F.3d at 1120 (quoting Malesko, 534 U.S. at 69). As long
as “an avenue for some redress” exists, “bedrock principles
of separation of powers forclose[s] judicial imposition of a
new substantive liability.’” Id. (alteration in original) (quoting
Malesko, 534 U.S. at 69).
Here, we conclude that the Privacy Act, 5 U.S.C. § 552a,
and the Religious Freedom Restoration Act, 42 U.S.C.
§ 2000bb et seq., taken together, provide an alternative
remedial scheme for some, but not all, of Plaintiffs’ First and
Fifth Amendment Bivens claims. As to the remaining Bivens
claims, we remand to the district court to decide whether a
Bivens remedy is available in light of the Supreme Court’s
decision in Abbasi.
As to the collection and maintenance of records, Plaintiffs
could have, and indeed did, challenge the FBI’s surveillance
of them under the Privacy Act’s remedial scheme. Again, the
Privacy Act, 5 U.S.C. § 552a, creates a set of rules governing
how such records should be kept by federal agencies. See
supra Part III.A. Under § 552a(e)(7), an “agency that
maintains a system of records shall maintain no record
describing how any individual exercises rights guaranteed by
the First Amendment unless expressly authorized by statute
or by the individual about whom the record is maintained or
unless pertinent to and within the scope of an authorized law
enforcement activity.”39 When an agency fails to comply with
39
The term “maintain” is defined to mean “maintain, collect, use, or
disseminate.” 5 U.S.C. § 552a(a)(3).
FAZAGA V. WALLS 81
§ 552a(e)(7), an individual may bring a civil action against
the agency for damages. Id. § 552a(g)(1)(D), (g)(4). Thus,
§ 552a(e)(7) limits the government’s ability to collect,
maintain, use, or disseminate information on an individual’s
religious activity protected by the First Amendment’s
Religion Clauses.
We have not addressed the availability of a Bivens action
where the Privacy Act may be applicable. But two other
circuits have, and both held that the Privacy Act supplants
Bivens claims for First and Fifth Amendment violations. See
Wilson v. Libby, 535 F.3d 697, 707–08 (D.C. Cir. 2008)
(holding, in response to claims alleging harm from the
improper disclosure of information subject to the Privacy
Act’s protections, that the Privacy Act is a comprehensive
remedial scheme that precludes an additional Bivens remedy);
Downie v. City of Middleburg Heights, 301 F.3d 688, 696 &
n.7 (6th Cir. 2002) (holding that the Privacy Act displaces
Bivens for claims involving the creation, maintenance, and
dissemination of false records by federal agency employees).
We agree with the analyses in Wilson and Downie.
Although the Privacy Act provides a remedy only against
the FBI, not the individual federal officers, the lack of relief
against some potential defendants does not disqualify the
Privacy Act as an alternative remedial scheme. Again, a
Bivens remedy may be foreclosed “even when the available
statutory remedies ‘do not provide complete relief’ for a
plaintiff,” as long as “the plaintiff ha[s] an avenue for some
redress.” W. Radio Servs., 578 F.3d at 1120 (alteration in
original) (emphasis added) (quoting Malesko, 534 U.S. at 69).
Thus, to the extent that Plaintiffs’ Bivens claims involve
improper collection and retention of agency records, the
Privacy Act precludes such Bivens claims.
82 FAZAGA V. WALLS
As to religious discrimination more generally, we
conclude that RFRA precludes some, but not all, of Plaintiffs’
Bivens claims. RFRA provides that absent a “compelling
governmental interest” and narrow tailoring, 42 U.S.C.
§ 2000bb-1(b), the “Government shall not substantially
burden a person’s exercise of religion even if the burden
results from a rule of general applicability.” Id. § 2000bb-
1(a). The statute was enacted “to provide a claim or defense
to persons whose religious exercise is substantially burdened
by government.” Id. § 2000bb(b)(2). It therefore provided
that “[a] person whose religious exercise has been burdened
in violation of this section may assert that violation as a claim
or defense in a judicial proceeding and obtain appropriate
relief against a government.” Id. § 2000bb-1(c). RFRA thus
provides a means for Plaintiffs to seek relief for the alleged
burden of the surveillance itself on their exercise of their
religion.
RFRA does not, however, provide an alternative remedial
scheme for all of Plaintiffs’ discrimination-based Bivens
claims. RFRA was enacted in response to Employment
Division v. Smith, 494 U.S. 872 (1990), which, in Congress’s
view, “virtually eliminated the requirement that the
government justify burdens on religious exercise imposed by
laws neutral toward religion,” 42 U.S.C. § 2000bb(a)(4).
Accordingly, “to restore the compelling interest test . . . and
to guarantee its application in all cases where free exercise of
religion is substantially burdened,” id. § 2000bb(b)(1), RFRA
directs its focus on “rule[s] of general applicability” that
“substantially burden a person’s exercise of religion,” id.
§ 2000bb-1(a).
Here, many of Plaintiffs’ allegations relate not to neutral
and generally applicable government action, but to conduct
FAZAGA V. WALLS 83
motivated by intentional discrimination against Plaintiffs
because of their Muslim faith. Regardless of the magnitude of
the burden imposed, “if the object of a law is to infringe upon
or restrict practices because of their religious motivation, the
law is not neutral” and “is invalid unless it is justified by a
compelling interest and is narrowly tailored to advance that
interest.” Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 533 (1993) (emphasis added). It is the
Free Exercise Clause of the First Amendment—not RFRA—
that imposes this requirement.
Moreover, by its terms, RFRA applies only to the “free
exercise of religion,” 42 U.S.C. § 2000bb(a)(1); indeed, it
expressly disclaims any effect on “that portion of the First
Amendment prohibiting laws respecting the establishment of
religion,” id. § 2000bb-4. But intentional religious
discrimination is “subject to heightened scrutiny whether [it]
arise[s] under the Free Exercise Clause, the Establishment
Clause, or the Equal Protection Clause.” Colo. Christian
Univ. v. Weaver, 534 F.3d 1245, 1266 (10th Cir. 2008)
(citations omitted). Here, Plaintiffs have raised religion
claims based on all three constitutional provisions. Because
RFRA does not provide an alternative remedial scheme for
protecting these interests, we conclude that RFRA does not
preclude Plaintiffs’ religion-based Bivens claims.
We conclude that the Privacy Act and RFRA, taken
together, function as an alternative remedial scheme for
protecting some, but not all, of the interests Plaintiffs seek to
vindicate via their First and Fifth Amendment Bivens claims.
The district court never addressed whether a Bivens remedy
is available for any of the religion claims because it dismissed
the claims in their entirety based on the state secrets privilege.
In addition, Abbasi has now clarified the standard for
84 FAZAGA V. WALLS
determining when a Bivens remedy is available for a
particular alleged constitutional violation. And, as we have
explained, the scope of the religion claims to which a Bivens
remedy might apply is considerably narrower than those
alleged, given the partial displacement by the Privacy Act and
RFRA. If asked, the district court should determine on
remand, applying Abbasi, whether a Bivens remedy is
available to the degree the damages remedy is not displaced
by the Privacy Act and RFRA.
C. 42 U.S.C. § 1985(3) Claims Against the Agent
Defendants
Plaintiffs allege that the Agent Defendants conspired to
deprive Plaintiffs of their rights under the First Amendment’s
Establishment and Free Exercise Clauses and the due process
guarantee of the Fifth Amendment, in violation of 42 U.S.C.
§ 1985(3).
To state a violation of § 1985(3), Plaintiffs must “allege
and prove four elements”:
(1) a conspiracy; (2) for the purpose of
depriving, either directly or indirectly, any
person or class of persons of the equal
protection of the laws, or of equal privileges
and immunities under the laws; and (3) an act
in furtherance of the conspiracy; (4) whereby
a person is either injured in his person or
property or deprived of any right or privilege
of a citizen of the United States.
United Bhd. of Carpenters & Joiners of Am., Local 610 v.
Scott, 463 U.S. 825, 828–29 (1983). The Defendants attack
FAZAGA V. WALLS 85
these claims on various grounds, but we reach only
one—whether § 1985(3) conspiracies among employees of
the same government entity are barred by the intracorporate
conspiracy doctrine.
Abbasi makes clear that intracorporate liability was not
clearly established at the time of the events in this case and
that the Agent Defendants are therefore entitled to qualified
immunity from liability under § 1985(3). See 137 S. Ct. at
1866.
In Abbasi, men of Arab and South Asian descent detained
in the aftermath of September 11 sued two wardens of the
federal detention center in Brooklyn in which they were held,
along with several high-level Executive Branch officials who
were alleged to have authorized their detention. Id. at 1853.
They alleged, among other claims, a conspiracy among the
defendants to deprive them of the equal protection of the laws
under § 1985(3).40 Id. at 1853–54. Abbasi held that, even
assuming these allegations to be “true and well pleaded,” the
defendants were entitled to qualified immunity on the
§ 1985(3) claim. Id. at 1866–67. It was not “clearly
established” at the time, the Court held, that the
intracorporate conspiracy doctrine did not bar § 1985(3)
liability for employees of the same government department
who conspired among themselves. Id. at 1867–68. “[T]he fact
that the courts are divided as to whether or not a § 1985(3)
conspiracy can arise from official discussions between or
among agents of the same entity demonstrates that the law on
40
Specifically, the plaintiffs alleged that these officials “conspired
with one another to hold respondents in harsh conditions because of their
actual or apparent race, religion, or national origin.” Abbasi, 137 S. Ct. at
1854.
86 FAZAGA V. WALLS
the point is not well established.” Id. at 1868. “[R]easonable
officials in petitioners’ positions would not have known, and
could not have predicted, that § 1985(3) prohibited their joint
consultations.” Id. at 1867. The Court declined, however, to
resolve the issue on the merits. Id.
Abbasi controls. Although the underlying facts here differ
from those in Abbasi, the dispositive issue here, as in Abbasi,
is whether the Agent Defendants could reasonably have
known that agreements entered into or agreed-upon policies
devised with other employees of the FBI could subject them
to conspiracy liability under § 1985(3). At the time the
Plaintiffs allege they were surveilled, neither this court nor
the Supreme Court had held that an intracorporate agreement
could subject federal officials to liability under § 1985(3),
and the circuits that had decided the issue were split.41 There
was therefore, as in Abbasi, no clearly established law on the
question. As the Agent Defendants are entitled to qualified
immunity on the § 1985(3) allegations in the complaint, we
affirm their dismissal on that ground.
41
Two circuits have held that the intracorporate conspiracy doctrine
does not extend to civil rights cases. See Brever v. Rockwell Int’l Corp.,
40 F.3d 1119, 1127 (10th Cir. 1994); Novotny v. Great Am. Fed. Sav. &
Loan Ass’n, 584 F.2d 1235, 1257–58 (3d Cir. 1978) (en banc), vacated on
other grounds, 442 U.S. 366 (1979); see also Stathos v. Bowden, 728 F.2d
15, 20–21 (1st Cir. 1984) (expressing “doubt” that the intracorporate
conspiracy doctrine extends to conspiracy under § 1985(3)). The majority
of the circuits have reached a contrary result. See Hartline v. Gallo,
546 F.3d 95, 99 n.3 (2d Cir. 2008); Meyers v. Starke, 420 F.3d 738, 742
(8th Cir. 2005); Dickerson v. Alachua Cty. Comm’n, 200 F.3d 761,
767–68 (11th Cir. 2000); Benningfield v. City of Houston, 157 F.3d 369,
378 (5th Cir. 1998); Wright v. Ill. Dep’t of Children & Family Servs.,
40 F.3d 1492, 1508 (7th Cir. 1994); Hull v. Cuyahoga Valley Joint
Vocational Sch. Dist. Bd. of Educ., 926 F.2d 505, 509–10 (6th Cir. 1991);
Buschi v. Kirven, 775 F.2d 1240, 1252–53 (4th Cir. 1985).
FAZAGA V. WALLS 87
D. Religious Freedom Restoration Act Claim Against
the Agent Defendants and Government Defendants
Plaintiffs allege that the Defendants violated the Religious
Freedom Restoration Act, 42 U.S.C. § 2000bb, by
substantially burdening Plaintiffs’ exercise of religion, and
did so neither in furtherance of a compelling governmental
interest nor by adopting the least restrictive means of
furthering any such interest. The Government Defendants
offer no argument for dismissal of the RFRA claim other than
the state secrets privilege. The Agent Defendants, however,
contend that they are entitled to qualified immunity on the
RFRA claim because Plaintiffs failed to plead a substantial
burden on their religion, and if they did so plead, no clearly
established law supported that conclusion at the relevant
time.42
To establish a prima facie claim under RFRA, a plaintiff
must “present evidence sufficient to allow a trier of fact
rationally to find the existence of two elements.” Navajo
Nation v. U.S. Forest Serv., 535 F.3d 1058, 1068 (9th Cir.
2008) (en banc). “First, the activities the plaintiff claims are
42
The parties do not dispute that qualified immunity is an available
defense to a RFRA claim. We therefore assume it is. See Padilla v. Yoo,
678 F.3d 748, 768 (9th Cir. 2012); Lebron v. Rumsfeld, 670 F.3d 540, 560
(4th Cir. 2012).
Tidwell and Walls also contend that Plaintiffs’ RFRA claim was
properly dismissed because RFRA does not permit damages suits against
individual-capacity defendants. Because we affirm dismissal on another
ground, we do not reach that issue. We note, however, that at least two
other circuits have held that damages are available for RFRA suits against
individual-capacity defendants. See Tanvir v. Tanzin, 894 F.3d 449, 467
(2d Cir. 2018); Mack v. Warden Loretto FCI, 839 F.3d 286, 302 (3d Cir.
2016).
88 FAZAGA V. WALLS
burdened by the government action must be an ‘exercise of
religion.’” Id. (quoting 42 U.S.C. § 2000bb-1(a)). “Second,
the government action must ‘substantially burden’ the
plaintiff’s exercise of religion.” Id. Once a plaintiff has
established those elements, “the burden of persuasion shifts
to the government to prove that the challenged government
action is in furtherance of a ‘compelling governmental
interest’ and is implemented by ‘the least restrictive means.’”
Id. (quoting 42 U.S.C. § 2000bb-1(b)).
“Under RFRA, a ‘substantial burden’ is imposed only
when individuals are forced to choose between following the
tenets of their religion and receiving a governmental benefit
. . . or coerced to act contrary to their religious beliefs by the
threat of civil or criminal sanctions . . . .” Id. at 1069–70; see
also Oklevueha Native Am. Church of Haw., Inc. v. Lynch,
828 F.3d 1012, 1016 (9th Cir. 2016). An effect on an
individual’s “subjective, emotional religious experience”
does not constitute a substantial burden, Navajo Nation,
535 F.3d at 1070, nor does “a government action that
decreases the spirituality, the fervor, or the satisfaction with
which a believer practices his religion,” id. at 1063.
Plaintiffs do allege that they altered their religious
practices as a result of the FBI’s surveillance: Malik trimmed
his beard, stopped regularly wearing a skull cap, decreased
his attendance at the mosque, and became less welcoming to
newcomers than he believes his religion requires.
AbdelRahim “significantly decreased his attendance to
mosque,” limited his donations to mosque institutions, and
became less welcoming to newcomers than he believes his
religion requires. Fazaga, who provided counseling at the
mosque as an imam and an intern therapist, stopped
FAZAGA V. WALLS 89
counseling congregants at the mosque because he feared the
conversations would be monitored and thus not confidential.
But it was not clearly established in 2006 or 2007 that
covert surveillance conducted on the basis of religion would
meet the RFRA standards for constituting a substantial
religious burden on individual congregants. There simply was
no case law in 2006 or 2007 that would have put the Agent
Defendants on notice that covert surveillance on the basis of
religion could violate RFRA. And at least two cases from our
circuit could be read to point in the opposite direction, though
they were brought under the First Amendment’s Religion
Clauses rather than under RFRA. See Vernon v. City of Los
Angeles, 27 F.3d 1385, 1394 (9th Cir. 1994); Presbyterian
Church, 870 F.2d at 527.43
Presbyterian Church concerned an undercover
investigation by INS of the sanctuary movement. 870 F.2d at
520. Over nearly a year, several INS agents infiltrated four
churches in Arizona, attending and secretly recording church
services. Id. The covert surveillance was later publicly
disclosed in the course of criminal proceedings against
individuals involved with the sanctuary movement. Id. The
four churches brought suit, alleging a violation of their right
to free exercise of religion. Id. We held that the individual
43
Presbyterian Church predates Employment Division v. Smith, which
declined to use the compelling interest test from Sherbert v. Verner,
374 U.S. 398 (1963). Smith, 494 U.S. at 883–85. The other case, Vernon,
postdates RFRA, which in 1993 restored Sherbert’s compelling interest
test. See 27 F.3d at 1393 n.1; see also 42 U.S.C. § 2000bb(b). Although
the compelling interest balancing test was in flux during this period, the
notion that a burden on religious practice was required to state a claim was
not. RFRA continued the same substantial burden standard as was
required by the constitutional cases. See Vernon, 27 F.3d at 1393.
90 FAZAGA V. WALLS
INS agents named as defendants were entitled to qualified
immunity because there was “no support in the preexisting
case law” to suggest that “it must have been apparent to INS
officials that undercover electronic surveillance of church
services without a warrant and without probable cause
violated the churches’ clearly established rights under the
First . . . Amendment[].” Id. at 527.
In Vernon, the Los Angeles Police Department (“LAPD”)
investigated Vernon, the Assistant Chief of Police of the
LAPD, in response to allegations that Vernon’s religious
beliefs had interfered with his ability or willingness to fairly
perform his official duties. 27 F.3d at 1389. Vernon filed a
§ 1983 action, maintaining that the preinvestigation activities
and the investigation itself violated the Free Exercise Clause.
Id. at 1390. In his complaint, Vernon alleged that the
investigation “chilled [him] in the exercise of his religious
beliefs, fearing that he can no longer worship as he chooses,
consult with his ministers and the elders of his church,
participate in Christian fellowship and give public testimony
to his faith without severe consequences.” Id. at 1394. We
held that Vernon failed to demonstrate a substantial burden
on his religious observance and so affirmed the district
court’s dismissal of his free exercise claim. Id. at 1395. We
noted that Vernon “failed to show any concrete and
demonstrable injury.” Id. “Vernon complain[ed] that the
existence of a government investigation has discouraged him
from pursuing his personal religious beliefs and practices—in
other words, mere subjective chilling effects with neither ‘a
claim of specific present objective harm [n]or a threat of
specific future harm.’” Id. (quoting Laird v. Tatum, 408 U.S.
1, 14 (1972)).
FAZAGA V. WALLS 91
Vernon and Presbyterian Church were decided before the
surveillance Plaintiffs allege substantially burdened their
exercise of religion. Both cases cast doubt upon whether
surveillance such as that alleged here constitutes a substantial
burden upon religious practice. There is no pertinent case law
indicating otherwise. It was therefore not clearly established
in 2006 or 2007 that Defendants’ actions violated Plaintiffs’
freedom of religion, protected by RFRA.44
As to the Agent Defendants, therefore, we affirm the
dismissal of the RFRA claim. But because the Government
Defendants are not subject to the same qualified immunity
analysis and made no arguments in support of dismissing the
RFRA claim other than the state secrets privilege, we hold
that the complaint substantively states a RFRA claim against
the Government Defendants.45
44
These cases do not, however, entitle the Agent Defendants to
qualified immunity as to claims involving intentional discrimination based
on Plaintiffs’ religion. As discussed in supra Part IV.B, those claims do
not require that Plaintiffs show a substantial burden on the exercise of
their religion. That principle was clearly established well before the events
in this case. See, e.g., Lukumi, 508 U.S. at 546; Larson v. Valente,
456 U.S. 228, 244 (1982). Thus, to the extent that Plaintiffs’ religion-
based Bivens claims may proceed, the Agent Defendants are not entitled
to qualified immunity for those claims.
45
We do not address any other defenses the Government Defendants
may raise before the district court in response to Plaintiffs’ RFRA claim.
92 FAZAGA V. WALLS
E. Privacy Act Claim Against the FBI
Plaintiffs allege that the FBI violated the Privacy Act,
5 U.S.C. § 552a(e)(7),46 by collecting and maintaining records
describing how Plaintiffs exercised their First Amendment
rights. As a remedy, Plaintiffs seek only injunctive relief
ordering the destruction or return of unlawfully obtained
information. Cell Associates, Inc. v. National Institutes of
Health, 579 F.2d 1155 (9th Cir. 1978), which interpreted the
scope of Privacy Act remedies, precludes such injunctive
relief.
The “Civil remedies” section of the Privacy Act, 5 U.S.C.
§ 552a(g), lists four types of agency misconduct and the
remedies applicable to each. The statute expressly provides
that injunctive relief is available when an agency improperly
denies a request to amend or disclose an individual’s record,
see 5 U.S.C. § 552a(g)(1)(A), (2)(A), (1)(B), (3)(A), but
provides only for damages when the agency “fails to maintain
any record” with the “accuracy, relevance, timeliness, and
completeness” required for fairness, id. § 552a(g)(1)(C), or if
the agency “fails to comply with any other provision” of
the Privacy Act, id. § 552a(g)(1)(D). See id. § 552a(g)(4).
Cell Associates concluded that this distinction was
purposeful—that is, that Congress intended to limit the
availability of injunctive relief to the categories of agency
46
The header to Plaintiffs’ Eighth Cause of Action reads broadly,
“Violation of the Privacy Act, 5 U.S.C. § 552a(a)–(l).” As actually
pleaded and briefed, however, the substance of Plaintiffs’ Privacy Act
claim is limited to § 552a(e)(7). The complaint states that “Defendant FBI
. . . collected and maintained records . . . in violation of 5 U.S.C.
§ 552a(e)(7).” And Plaintiffs’ reply brief states that they “seek
expungement . . . under 5 U.S.C. § 552a(e)(7).”
FAZAGA V. WALLS 93
misconduct for which injunctive relief was specified as a
remedy:
The addition of a right to injunctive relief for
one type of violation, coupled with the failure
to provide injunctive relief for another type of
violation, suggests that Congress knew what
it was about and intended the remedies
specified in the Act to be exclusive. While the
right to damages might seem an inadequate
safeguard against unwarranted disclosures of
agency records, we think it plain that
Congress limited injunctive relief to the
situations described in 5 U.S.C.
§ 552a(g)(1)(A) and (2) and (1)(B) and (3).
579 F.2d at 1161.
A violation of § 552a(e)(7) falls within the catch-all
remedy provision, applicable if the agency “fails to comply
with any other provision” of the Privacy Act. 5 U.S.C.
§ 552a(g)(1)(D). As the statute does not expressly provide for
injunctive relief for a violation of this catch-all provision,
Cell Associates precludes injunctive relief for a violation of
§ 552a(e)(7).
Plaintiffs attempt to avoid the precedential impact of Cell
Associates on the ground that it “nowhere mentions Section
552a(e)(7).” That is so, but the holding of Cell Associates
nonetheless applies directly to this case. The Privacy Act
specifies that injunctive relief is available for violations of
some provisions of the Act, but not for a violation of
§ 552a(e)(7). Under Cell Associates, Plaintiffs cannot obtain
94 FAZAGA V. WALLS
injunctive relief except for violations as to which such relief
is specifically permitted.47
Plaintiffs’ complaint expressly provides that “[t]he FBI is
sued for injunctive relief only.” Accordingly, because their
sole requested remedy is unavailable, Plaintiffs fail to state a
claim under the Privacy Act.
F. FTCA Claims
The FTCA constitutes a waiver of sovereign immunity
“under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the
law of the place where the act or omission occurred.”
28 U.S.C. § 1346(b)(1). “State substantive law applies” in
FTCA actions. Liebsack v. United States, 731 F.3d 850, 856
(9th Cir. 2013). If an individual federal employee is sued, the
United States shall, given certain conditions are satisfied, “be
substituted as the party defendant.” 28 U.S.C. § 2679(d)(1).
Plaintiffs allege that the United States is liable under the
FTCA for invasion of privacy under California law, violation
of the California constitutional right to privacy, violation of
California Civil Code § 52.1, and intentional infliction of
emotional distress. We first consider Defendants’
jurisdictional arguments, and then discuss their implications
for the substantive FTCA claims.
47
Plaintiffs also argue that MacPherson v. IRS, 803 F.2d 479 (9th Cir.
1986) is “binding Ninth Circuit authority . . . [that] makes clear that courts
have authority to order expungement of records maintained in violation of
its [§ 552a(e)(7)] requirements.” But MacPherson does not state whether
the plaintiff there sought injunctive relief and so is unclear on this point.
FAZAGA V. WALLS 95
1. FTCA Judgment Bar
The FTCA’s judgment bar provides that “[t]he judgment
in an action under [the FTCA] shall constitute a complete bar
to any action by the claimant, by reason of the same subject
matter, against the employee of the government whose act or
omission gave rise to the claim.” 28 U.S.C. § 2676. The
judgment bar provision has no application here.
The judgment bar provision precludes claims against
individual defendants in two circumstances: (1) where a
plaintiff brings an FTCA claim against the government and
non-FTCA claims against individual defendants in the same
action and obtains a judgment against the government, see
Kreines v. United States, 959 F.2d 834, 838 (9th Cir. 1992);
and (2) where the plaintiff brings an FTCA claim against the
government, judgment is entered in favor of either party, and
the plaintiff then brings a subsequent non-FTCA action
against individual defendants, see Gasho v. United States, 39
F.3d 1420, 1437–38 (9th Cir. 1994); Ting v. United States,
927 F.2d 1504, 1513 n.10 (9th Cir. 1991). The purposes of
this judgment bar are “to prevent dual recoveries,” Kreines,
959 F.2d at 838, to “serve[] the interests of judicial
economy,” and to “foster more efficient settlement of
claims,” by “encourag[ing plaintiffs] to pursue their claims
concurrently in the same action, instead of in separate
actions,” Gasho, 39 F.3d at 1438.
Neither of those two circumstances, nor their attendant
risks, is present here. Plaintiffs brought their FTCA claim,
necessarily, against the United States, and their non-FTCA
claims against the Agent Defendants, in the same action.
They have not obtained a judgment against the government.
Kreines held that “an FTCA judgment in favor of the
96 FAZAGA V. WALLS
government did not bar the Bivens claim [against individual
employees] when the judgments are ‘contemporaneous’ and
part of the same action.” Gasho, 39 F.3d at 1437 (quoting
Kreines, 959 F.2d at 838). By “contemporaneous,” Kreines
did not require that judgments on the FTCA and other claims
be entered simultaneously, but rather that they result from the
same action.
The FTCA’s judgment bar does not operate to preclude
Plaintiffs’ claims against the Agent Defendants.
2. FTCA Discretionary Function Exception
The discretionary function exception provides that the
FTCA shall not apply to “[a]ny claim based upon an act or
omission of an employee of the Government, exercising due
care, in the execution of a statute or regulation, . . . or based
upon the exercise or performance or the failure to exercise or
perform a discretionary function or duty on the part of a
federal agency or an employee of the Government, whether
or not the discretion involved be abused.” 28 U.S.C.
§ 2680(a). “[T]he discretionary function exception will not
apply when a federal statute, regulation, or policy specifically
prescribes a course of action for an employee to follow.”
Berkovitz v. United States, 486 U.S. 531, 536 (1988).
“[G]overnmental conduct cannot be discretionary if it violates
a legal mandate.” Galvin v. Hay, 374 F.3d 739, 758 (9th Cir.
2004) (quoting Nurse v. United States, 226 F.3d 996, 1002
(9th Cir. 2000)). Moreover, “the Constitution can limit the
discretion of federal officials such that the FTCA’s
discretionary function exception will not apply.” Id. (quoting
Nurse, 226 F.3d at 1002 n.2).
FAZAGA V. WALLS 97
We cannot determine the applicability of the discretionary
function exception at this stage in the litigation. If, on
remand, the district court determines that Defendants did not
violate any federal constitutional or statutory directives, the
discretionary function exception will bar Plaintiffs’ FTCA
claims.48 But if the district court instead determines that
Defendants did violate a nondiscretionary federal
constitutional or statutory directive, the FTCA claims may be
able to proceed to that degree.
Because applicability of the discretionary function will
largely turn on the district court’s ultimate resolution of the
merits of Plaintiffs’ various federal constitutional and
statutory claims, discussing whether Plaintiffs substantively
state claims as to the state laws underlying the FTCA claim
would be premature. We therefore decline to do so at this
juncture.
V. Procedures on Remand
On remand, the FISA and Fourth Amendment claims, to
the extent we have held they are validly pleaded in the
complaint and not subject to qualified immunity, should
proceed as usual. See supra Part II.B. In light of our
conclusion regarding the reach of FISA § 1806(f), the district
court should, using § 1806(f)’s ex parte and in camera
procedures, review any “materials relating to the surveillance
as may be necessary,” 50 U.S.C. § 1806(f), including the
evidence over which the Attorney General asserted the state
secrets privilege, to determine whether the electronic
48
We note that the judgment bar, 28 U.S.C. § 2676, does not apply to
FTCA claims dismissed under the discretionary function exception. See
Simmons v. Himmelreich, 136 S. Ct. 1843, 1847–48 (2016).
98 FAZAGA V. WALLS
surveillance was lawfully authorized and conducted. That
determination will include, to the extent we have concluded
that the complaint states a claim regarding each such
provision, whether Defendants violated any of the
constitutional and statutory provisions asserted by Plaintiffs
in their complaint. As permitted by Congress, “[i]n making
this determination, the court may disclose to [plaintiffs],
under appropriate security procedures and protective orders,
portions of the application, order, or other materials relating
to the surveillance only where such disclosure is necessary to
make an accurate determination of the legality of the
surveillance.” Id.49
The Government suggests that Plaintiffs’ religion claims
cannot be resolved using the § 1806(f) procedures because, as
the district court found, “the central subject matter [of the
case] is Operation Flex, a group of counterterrorism
investigations that extend well beyond the purview of
electronic surveillance.” Although the larger factual context
of the case involves more than electronic surveillance, a
careful review of the “Claims for Relief” section of the
complaint convinces us that all of Plaintiffs’ legal causes of
action relate to electronic surveillance, at least for the most
49
Our circuit has not addressed the applicable standard for reviewing
the district court’s decision not to disclose FISA materials. Other circuits,
however, have adopted an abuse of discretion standard. See United States
v. Ali, 799 F.3d 1008, 1022 (8th Cir. 2015); United States v. El-Mezain,
664 F.3d 467, 567 (5th Cir. 2011); United States v. Damrah, 412 F.3d
618, 624 (6th Cir. 2005); United States v. Badia, 827 F.2d 1458, 1464
(11th Cir. 1987); United States v. Belfield, 692 F.2d 141, 147 (D.C. Cir.
1982).
FAZAGA V. WALLS 99
part, and in nearly all instances entirely,50 and thus require a
determination as to the lawfulness of the surveillance.
Moreover, § 1806(f) provides that the district court may
consider “other materials relating to the surveillance as may
be necessary to determine whether the surveillance of the
aggrieved person was lawfully authorized and conducted,”
thereby providing for consideration of both parties’ factual
submissions and legal contentions regarding the background
of the surveillance. Id. (emphasis added).
As we concluded in Part I, supra, not all of the
surveillance detailed in the complaint as the basis for
Plaintiffs’ legal claims constitutes electronic surveillance as
defined by FISA. See id. § 1801(k). Only the surveillance in
the mosque prayer hall and of Fazaga’s office and
AbdelRahim’s house fits within FISA’s definition. But once
the district court uses § 1806(f)’s procedures to review the
state secrets evidence in camera and ex parte to determine the
lawfulness of that surveillance, we see no reason why the
district court could not then rely on its assessment of the
evidence—taking care to avoid its public disclosure—to
determine the lawfulness of the surveillance falling outside
FISA’s purview, should Plaintiffs wish to proceed with their
claims as applied to that set of activity.
50
Two of Plaintiffs’ causes of action can be read to encompass more
conduct than just electronic surveillance. Plaintiffs’ RFRA claim, their
Fifth Cause of Action, is not limited to surveillance. Plaintiffs broadly
allege that “[t]he actions of Defendants substantially burdened [their]
exercise of religion.” The FTCA claim for intentional infliction of
emotional distress, the Eleventh Cause of Action, is also more broadly
pleaded. It is far from clear, however, that as actually litigated, either
claim will involve more than the electronic surveillance that is otherwise
the focus of the lawsuit.
100 FAZAGA V. WALLS
The same categories of evidence will be required to
defend against Plaintiffs’ surviving claims no matter the
particular surveillance at issue. That is, whether the official-
capacity defendants targeted Plaintiffs for surveillance in
violation of the First Amendment, for example, will in all
likelihood be proven or defended against using the same set
of evidence regardless of whether the court considers the
claim in terms of surveillance in the mosque prayer hall or
conversations to which Monteilh was a party. It would be an
exercise in empty formalism to require the district court to
consider the state secrets evidence in camera and ex parte to
determine the lawfulness of the FISA surveillance, but then
ignore that same evidence and so dismiss Plaintiffs’ surviving
claims as to the non-FISA surveillance. As we explained in
our discussion of why FISA’s § 1806(f) procedures may be
used both for claims arising under § 1810 and under other
constitutional and statutory provisions, see supra Part II.D,
once the sensitive information has been considered in camera
and ex parte, the small risk of disclosure—a risk Congress
thought too small to preclude careful ex parte, in camera
consideration by a federal judge—has already been incurred.
The scope of the state secrets privilege “is limited by its
underlying purpose.” Halpern v. United States, 258 F.2d 36,
44 (2d Cir. 1958) (quoting Roviaro v. United States, 353 U.S.
53, 60 (1957)). It would stretch the privilege well beyond its
purpose to require the district court to consider the state
secrets evidence in camera and ex parte for one purpose, but
then ignore it and dismiss closely related claims involving the
exact same set of parties, facts, and alleged legal violations.51
51
None of Plaintiffs’ legal claims is pleaded to apply only to a
particular subset of surveillance activity.
FAZAGA V. WALLS 101
Should our prediction of the close overlap between the
information to be reviewed under the FISA procedures to
determine the validity of FISA-covered electronic
surveillance and the information pertinent to other aspects of
the religion claims prove inaccurate, or should the FISA-
covered electronic surveillance drop out of consideration,52
the Government is free to interpose a specifically tailored,
properly raised state secrets privilege defense. Should the
Government do so, at that point, the district court should
consider anew whether “simply excluding or otherwise
walling off the privileged information may suffice to protect
the state secrets,” Jeppesen, 614 F.3d at 1082, or whether
dismissal is required because “the privilege deprives the
defendant[s] of information that would otherwise give the
defendant[s] a valid defense to the claim[s],” id. at 1083
(quoting Kasza, 133 F.3d at 1166), or because the privileged
and nonprivileged evidence are “inseparable” such that
“litigating the case to a judgment on the merits would present
an unacceptable risk of disclosing state secrets,” id. Because
Jeppesen did not define “valid defense,” we briefly address
its meaning, so as to provide guidance to the district court on
remand and to future courts in our circuit addressing the
implications of the Government’s invocation of the state
secrets privilege.
The most useful discussion of the meaning of “valid
defense” in the state secrets context is in the D.C. Circuit’s
decision in In re Sealed Case, 494 F.3d 139, cited by
Jeppensen, 614 F.3d at 1083. We find the D.C. Circuit’s
definition and reasoning persuasive, and so adopt it.
Critically, In re Sealed Case explained that “[a] ‘valid
52
As could happen if, for instance, Plaintiffs are unable to substantiate
their factual allegations as to the occurrence of the surveillance.
102 FAZAGA V. WALLS
defense’ . . . is meritorious and not merely plausible and
would require judgment for the defendant.” 494 F.3d at 149.
The state secrets privilege does not require “dismissal of a
complaint for any plausible or colorable defense.” Id. at 150.
Otherwise, “virtually every case in which the United States
successfully invokes the state secrets privilege would need to
be dismissed.” Id. Such an approach would constitute judicial
abdication from the responsibility to decide cases on the basis
of evidence “in favor of a system of conjecture.” Id. And the
Supreme Court has cautioned against “precluding review of
constitutional claims” and “broadly interpreting evidentiary
privileges.” Id. at 151 (first citing Webster v. Doe, 486 U.S.
592, 603–04 (1988), and then citing United States v. Nixon,
418 U.S. 683, 710 (1974)). “[A]llowing the mere prospect of
a privilege defense,” without more, “to thwart a citizen’s
efforts to vindicate his or her constitutional rights would run
afoul” of those cautions. Id. Thus, where the government
contends that dismissal is required because the state secrets
privilege inhibits it from presenting a valid defense, the
district court may properly dismiss the complaint only if it
conducts an “appropriately tailored in camera review of the
privileged record,” id., and determines that defendants have
a legally meritorious defense that prevents recovery by the
plaintiffs, id. at 149 & n.4.
CONCLUSION
The legal questions presented in this case have been many
and difficult. We answer them on purely legal grounds, but of
course realize that those legal answers will reverberate in the
context of the larger ongoing national conversation about how
reasonably to understand and respond to the threats posed by
terrorism without fueling a climate of fear rooted in
stereotypes and discrimination. In a previous case, we
FAZAGA V. WALLS 103
observed that the state secrets doctrine strikes a “difficult
balance . . . between fundamental principles of our liberty,
including justice, transparency, accountability and national
security,” and sometimes requires us to confront “an
irreconcilable conflict” between those principles. Jeppesen,
614 F.3d at 1073. In holding, for the reasons stated, that the
Government’s assertion of the state secrets privilege does not
warrant dismissal of this litigation in its entirety, we, too,
have recognized the need for balance, but also have heeded
the conclusion at the heart of Congress’s enactment of FISA:
the fundamental principles of liberty include devising means
of forwarding accountability while assuring national security.
Having carefully considered the Defendants’ various
arguments for dismissal other than the state secrets privilege,
we conclude that some of Plaintiffs’ search and religion
allegations state a claim, while others do not. We therefore
affirm in part and reverse in part the district court’s orders,
and remand for further proceedings in accordance with this
opinion.
AFFIRMED in part, REVERSED in part, and
REMANDED.