916 F.3d 1202
9th Cir.2019Background
- Plaintiffs (three Muslim California residents and a putative class) allege the FBI hired a confidential informant (Craig Monteilh) in 2006–07 to surveil Muslim communities (Operation Flex), producing extensive audio/video recordings and records; plaintiffs allege some surveillance was based solely on religion.
- FBI agents Allen and Armstrong supervised Monteilh, provided recording devices, and allegedly coordinated surveillance; plaintiffs also allege some recordings were made by devices planted by FBI agents in a mosque office and a plaintiff’s home/car/phone.
- The Attorney General invoked the state‑secrets privilege over categories of evidence; the district court dismissed most claims on that basis and left only a FISA §1810 claim against certain agents to proceed; parties appealed.
- The Ninth Circuit panel (Berzon, Gould, Steeh) reviewed: (1) the FISA §1810 claim and qualified immunity for individual agents; (2) whether FISA’s in camera/ex parte procedures (50 U.S.C. §1806(f)) displace dismissal under the Reynolds state‑secrets doctrine for electronic‑surveillance claims; and (3) remaining constitutional and statutory claims (Fourth Amendment, First/Fifth Amendment, RFRA, Privacy Act, FTCA, §1985).
- Court held FISA §1806(f) displaces the Reynolds dismissal remedy for electronic‑surveillance matters and requires in camera/ex parte review where the Attorney General files an affidavit; some claims survive and others are barred or subject to qualified immunity; remanded for further proceedings using §1806(f) procedures where applicable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FISA §1806(f) preempts the Reynolds state‑secrets dismissal remedy for electronic surveillance | FISA provides mandatory in camera/ex parte procedures and must govern disputes over surveillance evidence rather than permitting dismissal under Reynolds | State‑secrets is a powerful common‑law/constitutional doctrine; Congress did not clearly abrogate it for this purpose | FISA §1806(f) displaces the Reynolds dismissal remedy for claims concerning electronic surveillance; courts must use §1806(f) procedures when triggered by the Attorney General’s affidavit |
| Whether plaintiffs are "aggrieved persons" and whether alleged surveillance constitutes "electronic surveillance" under FISA §1810 | Plaintiffs say they were targets / subjected to electronic surveillance (mosque recordings; planted devices) and thus qualify | Defendants challenge scope and contend many recordings do not meet FISA’s definition; claim qualified immunity for agents | Plaintiffs qualify as aggrieved for certain categories (mosque prayer‑hall recordings; planted devices in office/home/car/phone); FISA analysis parallels Fourth Amendment expectations-of-privacy inquiry |
| Qualified immunity on FISA §1810 and Fourth Amendment claims against individual agents | Plaintiffs say agents violated clearly established Fourth Amendment/FISA protections | Agents contend (1) invited‑informer doctrine (no reasonable expectation of privacy for conversations with an informant); (2) qualified immunity for mosque recordings because law was not clearly established; (3) insufficient allegations re: some agents and planted devices | Agents entitled to qualified immunity for (a) recordings where informant was a party and (b) mosque prayer‑hall recordings because reasonable‑privacy in houses of worship was not clearly established then; but Allen and Armstrong may be liable for surveillance via planted devices (others not plausibly alleged to have participated) |
| Availability of Bivens damages for religion/constitutional claims given alternative remedies (Privacy Act, RFRA), and §1985 conspiracy claim | Plaintiffs seek Bivens damages for Establishment/Free Exercise/Fifth Amendment injuries | Defendants argue alternative remedies (Privacy Act, RFRA) preclude Bivens for many claims; intracorporate conspiracy doctrine/qualified immunity precludes §1985 liability | Privacy Act and RFRA together displace some—but not all—Bivens claims (Privacy Act covers collection/maintenance of records; RFRA covers many burdens on religious exercise); for remaining Bivens claims court remands to assess availability under Abbasi; §1985 conspiracy claims fail as intracorporate‑liability was not clearly foreclosed, so agents have qualified immunity |
Key Cases Cited
- United States v. Reynolds, 345 U.S. 1 (1953) (modern statement of the state secrets evidentiary privilege)
- Katz v. United States, 389 U.S. 347 (1967) (reasonable expectation of privacy test for Fourth Amendment)
- Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) (implied damages remedy against federal officers for constitutional violations)
- Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) (limits on extending Bivens and qualified‑immunity framework; intracorporate conspiracy and Bivens availability analysis)
- Jeppesen Dataplan, Inc. v. United States, 614 F.3d 1070 (9th Cir. 2010) (discussing state‑secrets limits and cautioning against premature dismissal)
- Al‑Haramain Islamic Foundation, Inc. v. Obama, 507 F.3d 1190 (9th Cir. 2007) (addressing state secrets and FISA issues)
- ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007) (treating FISA reasonable‑expectation/warrant analysis as parallel to Fourth Amendment)
- In re Sealed Case, 494 F.3d 139 (D.C. Cir. 2007) (framework for assessing when state‑secrets assertion forecloses litigation and meaning of a “valid defense")
- Kyllo v. United States, 533 U.S. 27 (2001) (privacy protections for the home and limits on warrantless surveillance)