Al-Haramain Islamic Foundation, Inc. v. Obama
705 F.3d 845
9th Cir.2012Background
- This is a second appeal in the Al-Haramain litigation about the government’s Terrorist Surveillance Program and prior FISA/State Secrets issues.
- On remand from Al-Haramain I, the district court held FISA preempts the state secrets privilege and that § 1810 implicitly waives sovereign immunity, allowing damages and fees.
- The district court awarded liquidated damages to two individual plaintiffs, and attorney’s fees and costs; it dismissed the organization as a foreign power under § 1810.
- The district court also dismissed Mueller in his personal capacity; the plaintiffs sought damages under § 1810 for surveillance conducted without judicial authorization.
- The plurality court reverses, holds that § 1810 does not implicitly waive sovereign immunity and vacates the entire judgment, including damages and fees, while affirming dismissal of Mueller claims.
- The court emphasizes there is no explicit United States waiver in § 1810 and that the government’s interpretation would undermine the sovereign immunity framework and Congress’s FISA scheme.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1810 waives sovereign immunity | Al-Haramain argued § 1810 is an implied waiver via ‘person’ | Mueller/United States argued no explicit waiver; waiver must be unequivocal | No explicit waiver; sovereign immunity not waived |
| Whether the United States may be sued under § 1810 for FISA violations | Al-Haramain relies on § 1810 as remedy for unlawful surveillance | Government contends no waiver and statute targets individuals, not the United States | § 1810 cannot reach the United States |
| Whether Mueller can be sued in his personal capacity | Mueller alleged conduct tied to official surveillance | Al-Haramain failed to plead individual level FISA claims plausibly | Dismissal of Mueller claims affirmed |
| Whether damages and fees award under § 1810 must be vacated | Damages and fees were recoverable if § 1810 waived immunity | Without waiver, district court erred in awarding damages/fees | Judgment vacated; damages/fees reversed |
Key Cases Cited
- United States v. Mitchell, 445 U.S. 535 (1980) (waiver of sovereign immunity must be unequivocally expressed)
- FAA v. Cooper, 132 S. Ct. 1441 (2012) (scope of immunity waiver must be clearly discernable from text)
- Mohamad v. Palestinian Auth., 132 S. Ct. 1702 (2012) (legislative history can confirm statutory interpretation)
- Lane v. Pena, 518 U.S. 187 (1996) (presumption against implied waivers; need clear grant)
- Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571 (2008) (clear textual language required for waivers; interpretive tools)
- ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007) (FISA implications on use/disclosure of information)
- United States v. Cooper Corp., 312 U.S. 600 (1941) (concepts of liability and sovereign capacity in criminal context)
- Maryland v. Soper, 270 U.S. 9 (1926) (criminal enforcement against offices vs. individuals)