YASSIR FAZAGA; ALI UDDIN MALIK; YASSER ABDELRAHIM v. FEDERAL BUREAU OF INVESTIGATION; CHRISTOPHER A. WRAY, Dirеctor 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; BARBARA WALLS; J. STEPHEN TIDWELL
No. 12-56867
No. 12-56874
No. 13-55017
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
February 28, 2019
D.C. No. 8:11-cv-00301-CJC-VBK
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
YASSIR FAZAGA; ALI UDDIN MALIK; YASSER ABDELRAHIM, Plaintiffs-Appellees, v. 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.
No. 12-56867
D.C. No. 8:11-cv-00301-CJC-VBK
FAZAGA V. WALLS
YASSIR FAZAGA; ALI UDDIN MALIK; YASSER ABDELRAHIM, Plaintiffs-Appellees, v. 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.
No. 12-56874
D.C. No. 8:11-cv-00301-CJC-VBK
FAZAGA V. WALLS
YASSIR FAZAGA; ALI UDDIN MALIK; YASSER ABDELRAHIM, Plaintiffs-Appellants, v. 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; PAT ROSE; KEVIN ARMSTRONG; PAUL ALLEN; UNITED STATES OF AMERICA, Defendants-Appellees.
No. 13-55017
D.C. No. 8:11-cv-00301-CJC-VBK
OPINION
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
FAZAGA V. WALLS
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,
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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
Section 110 of FISA, codified at
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
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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
The panel next considered whether the claims other than the
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.
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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’
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
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
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.
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
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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
C. 42 U.S.C. § 1985(3) Claims Against the Agent Defendants. . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
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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
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
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 dеtermination of whether the alleged surveillance was unlawful following the secrecy-protective procedure set forth in
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
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
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 dаily, attending prayers, classes, and special events. He also visited “with some regularity” several other large mosques in Orange County.
FAZAGA V. WALLS
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,
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 usе 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
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
FAZAGA V. WALLS
to indicate his willingness to
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.
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
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 relief for the individual Plaintiffs and the class, and damages for themselves as individuals.5 The Agent Defendants
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 Operatiоn Flex), any information obtained 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
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
The Agent Defendants timely filed notices of appeal from the denial of qualified immunity on Plaintiffs’ FISA claim. The
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
I. The FISA Claim Against the Agent Defendants
Section 110 of FISA, codified at
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....
This statutory text refers to another section,
To determine whether Plaintiffs plausibly allege a cause of action under
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.”
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.
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
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 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 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 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
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
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
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 tо 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.
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 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
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.
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
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
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 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 рrivacy.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
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
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, 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 attaches to church worship services open to the public.” The Presbyterian Church (U.S.A.) v. Unitеd 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
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
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
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.
As to Tidwell, Walls, and Rose, however, the complaint does not plausibly allege their рersonal involvement with respect to the planted devices.20 The complaint details
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
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
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
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
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
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
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
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 ‘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
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“;
B. The District Court‘s Dismissal of the Search Claims Based on the State Secrets Privilege
As a threshold matter, before determining whether
The Government must formally claim the Reynolds privilege. Reynolds, 345 U.S. at 7–8. The privilege is “not 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 “lodgеd 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
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.
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
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 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
C. FISA Displacement of the State Secrets Privilege
Before the enactment of
To displace federal common law, Congress need not “affirmatively proscribe[] the use of federal common law.” Id. at 315. Rаther, “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
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 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
In support of this proposition, the Government cites two out-of-circuit cases, El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007), 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.
The state secrets privilege may have “a constitutional ‘core’ or constitutional ‘overtones,‘” In re NSA, 564 F. Supp. 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
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 рursuant 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 district as the authority, shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that 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.
The phrase “notwithstanding any other law,” the several uses of the word “whenever,” and the command that courts ”shall” use the
The procedures set out in
This conclusion is consistent with the overall structure of
Moreover,
The legislative history of
Urging “fundamental reform,”
[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
intelligence electronic
H. Rep. No. 95-1283, pt. 1, at 21.
In short, the procedures outlined in
D. Applicability of FISA‘s § 1806(f) Procedures to Affirmative Legal Challenges to Electronic Surveillance
Having determined that, where they apply,
By the statute‘s terms, the procedures set forth in
[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.
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
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
The Government disputes that
The plain text and statutory structure of
(“[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 intrоduce 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
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,”
The inference drawn from the text of
In the alternative, the Government suggests that
Had Congress wanted to limit the use of
Furthermore, if—as here—an aggrieved person brings a claim under
We are not the first to hold that
Id. at 465; accord United States v. Johnson, 952 F.2d 565, 571-73, 571 n.4 (1st Cir. 1991) (usingWhen a district court conducts a
§ 1806(f) review, its task is not simply to decide whether the surveillance complied withFISA .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.
In sum, the plain language, statutory structure, and legislative history demonstrate that Congress intended
E. Aggrieved Persons
We now consider more specifically whether
We addressed the “aggrieved person” requirement in part in the discussion of Plaintiffs’
Again, because Plaintiffs are properly considered “aggrieved” for purposes of
* * * *
We next turn to considering whether the claims other than the
III. Search Claims
In this part, we discuss (1) the
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
We have repeatedly and consistently recognized that federal courts can order expungement of records, criminal and otherwise, to vindicate constitutional rights.32 The
relief under the Constitution.33 Previous cases involving claims brought under both the
In addition to its
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:
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 toEven 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.
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
B. Fourth Amendment Bivens Claim Against the Agent Defendants
Alleging that the Agent Defendants violated the
Bivens itself concerned a
Here, the substance of Plaintiffs’
Moreover, if the
In light of the overlap between the Bivens claim and the narrow range of the remaining
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)
A. First Amendment and Fifth Amendment Injunctive Relief Claims Against the Official-Capacity Defendants
Plaintiffs maintain that it violates the
B. First Amendment and Fifth Amendment Bivens Claims Against the Agent Defendants
Plaintiffs seek monetary damages directly under the
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 (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).
Here, we conclude that the
As to the collection and maintenance of records, Plaintiffs could have, and indeed did, challenge the FBI‘s surveillance of them under the
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.
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
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,”
Here, many of Plaintiffs’ allegations relate not to neutral and generally applicable government action, but to conduct 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,”
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 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
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
To state a violation of
(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 these claims on various grounds, but we reach only one—whether
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
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
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
D. Religious Freedom Restoration Act Claim Against the Agent Defendants and Government Defendants
Plaintiffs allege that the Defendants violated the Religious Freedom Restoration Act,
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 burdened by the government action must be an ‘exercise of religion.‘” Id. (quoting
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 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 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
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
E. Privacy Act Claim Against the FBI
Plaintiffs allege that the FBI violated the Privacy Act,
The “Civil remedies” section of the Privacy Act,
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 seеm 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) .
A violation of
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
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.”
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.”
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 government did not bar the Bivens claim [agаinst 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.”
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
The Government suggests that Plaintiffs’ religion claims cannot be resolved using the
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
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
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 Jeppesen, 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 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 cоnducts 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
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.
Notes
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 Plаintiffs from clarifying these and other allegations on remand.
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.
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).