Case 6:04-cv-01427-AA Document 1 Filed 10/04/04 Page 1 of 42

Gerry Spence, Wyoming Bar No. 4-0657 gls@gerryspence.com The Spence Law Firm LLC 15 South Jackson Street, P.O. Box 548 Jackson, WY 83001 Telephone: (800)967-2117 Facsimile: (307)733-5248
Elden M. Rosenthal, OSB No. 72217 elden@rosenthal-greene.com Rosenthal & Greene, P.C. 1001 S.W. Fifth Avenue, Suite 1907 Portland, OR 97204 Telephone: (503)228-3015 Facsimile: (503)228-3269
Michele Longo Eder, OSB No. 79305 michele@michelelongoeder.com Michele Longo Eder, LLC 4 SW High Street, P.O. Box 1530 Newport, OR 97365 Telephone: (541) 265-3337 Facsimile: (541) 265-6633
Of Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

BRANDON MAYFIELD, an individual, MONA
MAYFIELD, an individual, and SHANE MAYFIELD, SHARIA MAYFIELD, and SAMIR MAYFIELD, individuals, by and through their guardian ad !item Mona Mayfield,
Plaintiffs, v.
JOHN ASHCROFT, Attorney General of the United States of America, RICHARD K. WERDER, an individual, TERRY GREEN, an individual, JOHN T. MASSEY, an individual, MICHAEL WIENERS, an individual, THE DEPARTMENT OF JUSTICE, an executive department of the United States of America, THE FEDERAL BUREAU OF INVESTIGATION, an agency of the United States of America, and JOHN DOES I - X, individuals,

AA CASE r11. ~()41 NO.

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COMPLAINT FOR VIOLATION OF CIVIL RIGHTS
DEMAND FOR TRIAL BY JURY and REQUEST FOR ADVISORY JURY

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Plaintiffs allege: INTRODUCTION
1. This Complaint describes how Brandon Mayfield, an attorney in Portland, Oregon, was singled out by the U.S. government to be accused of terrorism based on the FBI's mistaken reading of a fingerprint, and based upon the fact that Mr. Mayfield and his family adhere to the Muslim faith. This complaint also describes how the FBI, for its own institutional reasons, and for the personal reasons of some of its employees, refused to acknowledge their mistake and instead described Mr. Mayfield to the national and international media as a terrorist, and subjected Mr. Mayfield to the risk of execution. This complaint also challenges the constitutionality of portions of the Patriot Act.
PARTIES 2. Brandon Mayfield, his wife Mona Mayfield, and their children Shane Mayfield, Sharia Mayfield, and Samir Mayfield are United States citizens living m Oregon. Mona Mayfield is the duly appointed guardian ad /item of said children. 3. John Ashcroft is the Attorney General of the United States of America, and is the head of the Department of Justice, responsible for the actions of said Department, and responsible for the actions of the Federal Bureau of Investigation. Richard K. Werder, Terry Green, and Michael Wieners are employees and agents of the Federal Bureau of Investigation. 4. John T. Massey is a contract employee and agent of the Federal Bureau of Investigation.
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5. At all times herein pertinent, John Does I-X were employees and/or agents ofthe FBI and/or the Department of Justice.
6. The Department of Justice (hereinafter DOJ) and the Federal Bureau of Investigation (hereinafter FBI) are agencies of the United States Government as defined in the U.S. Privacy Act.
JURISDICTION 7. This Court has jurisdiction of these claims pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1343(a)(3), 5 U.S.C. § 552a(g), and 28 U.S.C. § 2201.
FACTUAL ALLEGATIONS 8. On March 11, 2004, in Madrid, Spain, terrorists' bombs exploded on commuter trains, murdering 191 persons, and injuring another 1600 persons, including three U.S. citizens. International horror echoed the feelings Americans experienced after the cataclysm of September 11th. Shortly after the bombings, the Spanish National Police e'SNP") recovered fingerprints from a plastic bag containing explosive detonators. The bag was found in a Renault van located near the site of the carnage. 9. On March 13, 2004, the SNP submitted digital photographs of the latent fingerprints lifted from the bag to Interpol Madrid, which then transmitted the digital photographs to the FBI in Quantico, Virginia. 10. On the same day as the latent fingerprints were received by the FBI, the Latent Print Unit of the FBI initiated an "AFIS search" in an attempt to match the latent prints received from Spain with known prints in the FBI computer system. This
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computer search by the FBI was unable to match any of the latent prints from Spain with any of the known prints in their database.
11. On March 14, 2004, the FBI requested and received from Spain "higher resolution" digital photographs of the eight latent prints and on March 15, 2004, another
. AFIS search was done. The computer was asked to return 20 candidates whose known
prints had features in common with what was identified as Latent Finger Print #17 (LFP #17).
12. On March 15, 2004, a list of 20 candidates was returned by AFIS. Each candidate was identified by an AFIS "score," a number that reflected a rank as to how closely the AFIS computer determined each candidate's fingerprint matched certain features of LFP #17. Also on the AFIS list was an identification number for each candidate, which allowed the FBI to retrieve the names, original fingerprint cards, and demographic information of each candidate on the list. Demographic information available to the FBI included names, dates of birth, sex, race, and social security numbers. This information allowed the FBI to perform background checks on each individual on the list of 20 candidates produced by AFIS.
13. On the AFIS list of 20 candidates, the person ranked # 4 was Brandon Mayfield. Brandon Mayfield is an American citizen born in Oregon and reared in Kansas. He lives with. his wife, Mona, and their three children in their family home in Aloha, Oregon, a suburb of Portland. Mr. Mayfield is 38 years old, a former Army officer with an honorable discharge, and a practicing Oregon lawyer. Prior to his arrest,
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he had not been outside the United States since 1994, and he has never been convicted of a crime.
14. Based upon information and belief, plaintiffs allege that subsequent to March 15, 2004, FBI examiners and supervisors who examined the fingerprints of Mr.
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Mayfield were aware of his Muslim faith, and that this knowledge influenced their examination of Mr. Mayfield's fingerprints.
15. On or about March 17, 2004, two days after the AFIS list of20 candidates was generated, Senior Fingerprint Examiner Terry Green concluded that Mr. Mayfield;s left index fingerprint matched LFP #17,·the fingerprint discovered by the SNP. Mr. Green made this identification of Mr. Mayfield's print:
a. Without looking, or requesting to look, at a photo of the relative position of all the latent finger prints on the bag, which would have shown that based on the location of the prints on the bag, LFP #17 could not have been Mr. Mayfield's left index finger;
b. Despite only having a few alleged points of similarity betwe<m the latent finger print and Mr. Mayfield's, so few points that no police agency in the world would find it sufficient for an identification;
c. Despite the existence of significant unexplained areas of dissimilarity between LFP #17 and Mr. Mayfield's fingerprint;
d. Despite obvious evidence that there were interruptions in the ridge flow between LFP #17 and Mr. Mayfield's print;
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e. Despite obvious evidence that the Level One patterns in LFP #17 and Mr. Mayfield's prints were not the same, i.e. the core of LFP #17 showed an open delta in the arch pattern whereas Mr. Mayfield's print was a closed delta in an arch pattern; and
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f. Despite obvious evidence that the number of ridges on LFP #17 and Mr. Mayfield's print were not the same.
Had Mr. Green, an examiner of vast experience, properly performed the fingerprint identification analysis, he would have been compelled to declare that Mr. Mayfield's print was did not match to LFP #17. However, influenced by extraneous information, including Mr. Mayfield's adherence to the Muslim faith (the "Muslim Factor"), Mr. Green wrongly identified LFP #17 as matching one of Mr. Mayfield's known fingerprints.
16. FBI agent Green's wrongful conduct was further exacerbated when the print was submitted to Mr. John T. Massey, an allegedly "independent fingerprint examiner," for verification. Mr. Massey is a former employee of the FBI, engaged by the FBI on a contract basis to do fingerprint examinations. When Mr. Massey was an employee of the FBI he was reprimanded on at least three occasions for erroneously "identifying" fingerprints. Plaintiffs allege, based on information and belief, that Mr. Massey was selected to "verify" the identification because his employment history of discipline for poor performance would strongly motivate him to agree and verify the prior identification. It is believed that Mr. Massey was told of the prior identification by Senior Print Examiner Green of LFP #17 to Mr. Mayfield and that Mr. Mayfield was a
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Muslim, increasing the likelihood that Mr. Massey would verify the identification and buttress the FBI's case against Mr. Mayfield on the basis of his religious beliefs.
17. The bogus match of Mr. Mayfield's print to LFP #17 was then submitted to a senior manager, Mr. Michael T. Wieners, for verification. It is the policy of the FBI
. Latent Print Unit that when there are less than 12 points of similarity between a latent
print and a known print, a senior manager must review the alleged match. Mr. Wieners knew, before examining the prints, that two examiners before him had identified and verified the purported match and that Mr. Mayfield is Muslim. This knowledge precluded him from making an independent examination. Mr. Wieners wrongly verified LFP #17 as matching Mr. Mayfield's known print.
18. On or about March 20, 20.04, the FBI issued a formal report matching Mr. Mayfield's print to that of LFP #17. On or about March 21, 2004, FBI surveillance agents began to watch Mr. Mayfield and to follow~· Mayfield and members of his family travel to and from the Bilal Mosque, the family's place of worship, to and from Mr. Mayfield's law office, to and from the children's schools, and to and from family activities.
19. At some point in time after the FBI's wrongful fingerprint identification, plaintiffs claim, based on information and belief, that the FBI made application to the Foreign Intelligence Security Court (FISC) for an order authorizing the FBI to:
a. Place electronic listening devices ("bugs") in the shared and intimate rooms ofthe Mayfield family home;
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b. Execute repeated "sneak and peek" searches of the Mayfield family home, occllrring when the family was away from the home, which, to add insult to injury, were performed so incompetently that the FBI left traces of their searches behind, causing the Mayfield family to be frightened and believe that they had been burglarized;
c. Obtain private and protected information about the Mayfields·from third parties;
d. Execute "sneak and peek" searches of the Law Office of Brandon Mayfield and examine confidential client materials;
e. Place electronic listening devices (''bugs") in the Law Office of Brandon Mayfield; and
£ Place wiretaps on Mr. Mayfield's office and home phones. 20. The application for the Foreign Intelligence Surveillance Act (FISA) order before the FISC was personally approved by John Ashcroft, the Attorney General of the United States. Ashcroft was under pressure to reestablish the reputation of the FBI in its "War on Terror," particularly in light of the exposed failures of the FBI prior to September 11, 2001, which failures were being revealed by the investigative work of the 9111 Commission. As a result, the Attorney General of the United States and his agents, in order to attempt to show that the FBI was a competent agency performing its functions in the "War on Terror," knowingly and recklessly filed false and misleading affidavits with FISA court, as set forth in more detail below. Ill
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21. It is unknown to Mr. Mayfield what, exactly, the U.S. government learned from Spain between March 17th and April 2nd. On April 2nd Mr. Mayfield's prints were sent by the FBI to Spain. By that date it is believed that the U.S. government had already been advised by the Spanish government that Moroccan immigrants were suspects in the Madrid bombing and had been taken into custody, aiid that the Spanish government was not aware of any information connecting the Moroccans with Mr. Mayfield or anyone in the U.S.
22. The SNP examined the FBI's report, and Mr. Mayfield's fingerprints, and concluded that there were dissimilarities in the comparison of the two prints for which there was no explanation. On April 13th the SNP provided a written report to the FBI explaining that they had compared LFP #17 to Mr. Mayfield's fingerprints, and stated their conclusion that there was no match.
23. For several reasons, the FBI and its fingerprint examiners involved in the case were now in a bind The FBI, and its fingerprint examiners, knew that a "false positive" fingerprint identification would result in:
a. Revocation of professional licensures ofthe individual examiners; b. Internal discipline; c. Internal lab review; d. Potential loss of American Crime Lab Certification; e. Job loss to examiners and supervisors; f. Congressional investigation; and g. Other external review. Page 9 - COMPLAINT FOR VIOLATION OF CIVIL RIGHTS

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24. In addition, the entire foundation of the "science" of fingerprint identification was at stake. In the two years previous to the Madrid bombings, challenges had been mounted against the admissibility into federal court of fingerprint examiners' testimony that "matched" a known print to that of a suspect's print found at a crime scene. The basis for the challenges was that fingerprint examination, as an alleged science, does not meet evidentiary standards required by the U.S. Supreme Court. The DOJ and the FBI vigorously contested these legal challenges, and in numerous hearings in federal courts FBI witnesses claimed fingerprint matching is an exact science. In fact, the supervisor of the Latent Print Unit of the FBI, Stephen Meagher, testified repeatedly that in the history of fingerprint examination the FBI had never testified in court to a "false positive," i.e., that the FBI had NEVER made a misidentification.
25. During March and April, 2004, while the FBI was vehemently insisting that LFP #17 belonged to Mr. Mayfield, and while the FBI was aggressively attempting to convince the SNP of the correctness of the FBI fingerprint analysis, a case was pending in the U.S. Court of Appeals which was considered to be the most serious challenge ever raised to the FBI's claims of fingerprint infallibility. In the case of U.S. v Mitchell the very admissibility of FBI fingerprint testimony was at issue. The FBI was acutely aware of this challenge, and could not risk public embarrassment or doubt to arise concerning its claimed infallibility in the identification of latent fingerprints.
26. Despite having been told by the SNP that LFP #17 and Mr. Mayfield's print were not a match, knowing what was at stake and in the furtherance of their own personal
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and institutional interests, the FBI personnel continued to insist that their match of the prints was correct.
27. In sum, the FBI was willing to subject Mr. Mayfield and his family to his public branding as a mass murderer, and an international terrorist, and subject Mr. Mayfield to the ultimate penalty of death, in order to save their own jobs, the reputation of the FBI, and in order to secure the admissibility of the alleged science of :fingerprint in the courts.
28. On April 21, 2004, the FBI sent one or more agents to Madrid, Spain, to meet with their Spanish counterparts. Their intent and purpose was to exert whate\Zer influence and pressure necessary to convince the SNP of the correctness of the FBI match. Spanish sources have publicly stated that. still the Spanish authorities who met with the FBI agents on April 21st"refused to validate" the FBI's conclusion that LFP #17 and the known print of Mr. Mayfield were a match.
29. The FBI remained undaunted. Even though the FBI's claim that LFP # 17 matched Mr. Mayfield' s left index finger was directly and competently challenged by the SNP, the FBI sought to bolster its conclusion by the collection of hoped for corroboration. Mr. Mayfield's adherence to the Muslim religion became a driving force behind the continuing investigation. Resolute in upholding belief in its own infallibility in matching :fingerprints, the FBI continued to use the powers and secrecy of the Patriot Act and FISA to perform electronic surveillance, including wiretaps, and "sneak and peek" physical searches of Brandon Mayfield's home, law office, vehicles and communications. However, the government's intensive surveillance and investigation of Page 11 - COMPLAINT FOR VIOLATION OF CML RIGHTS

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Mr. Mayfield uncovered no criminal links whatsoever with Spain or the Madrid bombings.
30. According to published newspaper reports, the DOJ and FBI became concerned that the news media in Europe had learned of the FBI's investigation of Mr. Mayfield. Rather than risk full public exposure of the FBI-SNP disagreement over Mr. Mayfield's fingerprints, the DOJ and FBI decided the government had to make its move. The DOJ and FBI pressed on.
31. Employees of the FBI and the DOJ concocted false and misleading affidavits in order to justify even more intrusive searches and in order to justify the arrest of Mr. Mayfield as a "material witness." FBI investigator.Richard K. Werder, submitted a concocted affidavit to a federal judge in Portland, presumably similar to affidavits filed earlier with the secret FISA court in Washington, D.C., which stated that defendants Green, Wieners, and Massey considered LFP #17 a "100% positive identification" of Brandon Mayfield. Although the concocted affidavits stated that "preliminary findings" of the SNP "were not consistent" with the FBI fingerprint analysis, no mention was made of Spain's April 13th report to the FBI that stated the SNP did not agree with the FBI's fingerprint match of LFP #17 and Mr. Mayfield. The concocted affidavits made no mention that the SNP "refused to validate" the FBI's fingerprint analysis. The concocted affidavits falsely claimed that the SNP "felt satisfied with the FBI laboratory's identification." The concocted affidavits did not mention defendant Massey's history of fingerprint misidentification. Ill Page 12 - COMPLAINT FOR VIOLATION OF CIVIL RIGHTS

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32. In addition, the concocted affidavits attempted to validate their identification of· the latent print with lengthy, irrelevant, speculative and prejudicial narratives focusing on Mr. Mayfield's religion and association with co-practitioners, when defendants knew that Mr. Mayfield's associations with fellow Muslims was legal and in pursuit of his religion and his regular law practice. For example, Agent Werder included in the affidavit in support of the search and arrest warrants the fact that Mr. Mayfield attended a mosque. The FBI also claimed that Mr. Mayfield's advertisement for legal services in "Jerusalem Enterprises," or what are known as the "Muslim Yellow Pages," constituted evidence connecting him to the bombings as a material witness. A short look at the website ofthese ''Muslim Yellow Pages," illustrates that major car rental agencies, hotels, and airlines, such as Avis, Best Western, and United Airlines, also advertise on this site - hardly "evidence" pointing to a person having information regarding a bombing in a foreign country.
33. The sole purpose of the inclusion of said narratives was to demonize Mr.
Mayfield and create an aura of probable cause that Mr. Mayfield was an international terrorist, when in fact, the defendants had no evidence to support this conclusion, other than careless speculation and prejudice.
34. The concocted affidavit submitted to the federal court in Portland, as referred to above, was knowingly and/or recklessly false and misleading in one or more of the following particulars:
a. In failing to inform the court that on April 13, 2004, the SNP submitted to the FBI a report disputing the FBI's match of Brandon
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Mayfield's fingerpritit with the fingerprint found in Spain; b. In failing to inform the court that the April 13th document advised
the FBI that the SNP found the alleged match of Brandon Mayfield's fingerprint with the fingerprint found in Spain to be "negative";
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c. In falsely stating that at the conclusion of the April 21st meeting in Spain between representatives of the SNP and the FBI, "it was believed that the SNP felt satisfied with the FBI laboratory's identification" of the Spanish fingerprint as Brandon Mayfield's;
d. In failing to inform the court that at the conclusion of the April 21st meeting in Spain between representatives of the SNP and the FBI; the SNP "refused to validate" the FBl's fingerprint analysis;
e. In falsely stating that FBI agent Terry Green and the "FBI lab" considered the Spanish fingerprint a "100% positive identification" of Brandon Mayfield;
f. In failing to reveal defendant Massey's history of faulty fingerprint identification;
g. In falsely stating that "it is believed that Mayfield may have traveled [to Spain] under a false or fictitious name, with false or fictitious documents";
h. In failing to inform the court that the FBI had abandoned proper protocol in concluding that LFP #17 was a "100% match" with Mr. Mayfield's fingerprint in that the FBI used extrinsic evidence (the
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Muslim Factor) focusing upon Mr. Mayfield's practice of the Muslim ·religion and association with co-practitioners to support their fingerprint matching. 35. Preparing and filing the concocted affidavits with the omissions and false statements as set forth above constituted a violation of Brandon Mayfield's clearly established constitutional rights. No reasonable law enforcement officer could reasonably believe that preparing and filing a false and misleading affidavit for the purpose of securing search and arrest warrants did not violate clearly established constitutional rights. 36. Based upon the concocted, false, and misleading affidavits, broad search warrants were sought and issued. Mr. Mayfield's family home and law office were searched. Computer and paper files from his family home, including his children's Spanish homework, were seized. Computer and paper files, including actual client files, from his law practice were seized. Based upon the concocted, false, and misleading affidavits, Brandon Mayfield was arrested, and he was initially held in the lock down unit of the Multnomah County Detention Center. His family was not told where he was being held. He was told, and his family was told, that he was being held as a primary suspect on offenses punishable by death. He was told, and his family was told, that the FBI had made a 100% match of his fingerptint with the Madrid fingerprint. Leaks to the media from the FBI and the DOJ led to local, national, and international headlines that Brandon Mayfield's fingerprints linked him to the Madrid carnage. Brandon Mayfield knew he was innocent, knew he had nothing whatsoever to do with the Madrid bombings, and yet Page 15 - COMPLAINT FOR VIOLATION OF CIVIL RIGHTS

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was confronted with the FBI's seemingly irrefutable evidence that his fingerprint had been found in Madrid. He was frightened, humiliated and outraged. While in custody he feared for his family's safety and well being. Mona Mayfield, whose husband was being held in an unknown place and whose home had been violated, was terrified, confused,
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and fearful for herself and her children. The Mayfields' three children were traumatized both by the arrest of their father and the· search and seizure of items from their family home.
37. On May 19th, the SNP advised the FBI, and on May 20th news reports revealed, that Spain had matched the Madrid fingerprint with an Algerian, Mr. Ouhane Daoud. The FBI now admits that its fingerprint identification of Brandon Mayfield was an error, and, incredibly, the FBI now states that LFP # 17 is "of no value for identification purposes."
38. This lawsuit seeks compensatory and punitive damages from the FBI and DOJ employees who knowingly and/or recklessly misled the Foreign Intelligence Security Court in Washington, D.C., and the U.S. District Court for the District of Oregon, in order to justify intrusive and comprehensive electronic and physical surveillance and searches of Mr. Mayfield's family home, law office, vehicles and communications, and in order to arrest Brandon Mayfield as a primary suspect in the Madrid bombings. This lawsuit seeks compensatory and punitive damages from FBI and DOJ employees who falsely concluded that Mr. Mayfield was an international terrorist because of his religious faith. This lawsuit seeks compensatory damages from the FBI and DOJ arising from the actions taken by their employees to invade Mr. Mayfield's
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privacy and ruin his reputation by leaking to the world news media that Brandon Mayfield was incontrovertibly linked by fingerprint evidence to the Madrid bombings. And this lawsuit seeks to affirm that not even a "War on Terror'' allows the federal government to deprive U.S. citizens of their constitutionally protected rights to liberty
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and to enjoy the privacy and security of their homes and offices. FIRST CLAIM FOR RELIEF
Bivens claim for Brandon Mayfield arising from his unlawful arrest and imprisonment
39. Plaintiff Brandon Mayfield realleges and incorporates herein paragraphs 1-38, above.
40. Defendants Werder, Green, Wieners, Massey, and John Does I-X, acting individually and in concert, knowingly and/or recklessly caused a false and misleading material witness arrest affidavit to be filed in the U.S. District Court for the District of Oregon. As a direct result of said defendants' knowing and/or reckless submission of a false and· misleading affidavit to the U.S. District Court for the District of Oregon, Brandon Mayfield was arrested and imprisoned for the period May 6, 2004, through May 20, 2004, and then held on home detention through May 24, 2004. Brandon Mayfield's arrest and imprisonment was in violation of Mr. Mayfield's rights under the Fourth Amendment of the United States Constitution to be secure in his person, and not be arrested or imprisoned without probable cause.
41. Defendants Werder, Green, Wieners, Massey, and John Does 1-X, acting individually and in concert, knowingly and wrongfully selected Brandon Mayfield for
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arrest and imprisonment based upon his Muslim religion, despite being advised by the SNP that Mr. Mayfield's fingerprint did not match LFP # 17. These actions by defendants violated Brandon Mayfield's Fifth Amendment right to be free from selective and discriminatory arrest and imprisonment.
42. Defendants John Does I-X intentionally misused the Material Witness statute, 18 U.S.C. § 3144, for the purpose of arresting Brandon Mayfield in order to allow the FBI to continue its investigation of Mr. Mayfield while he was held indefinitely in custody. As reported in the Oregonian on May 8, 2004:
"He isn't likely to be taken before a federal grand jury soon because investigators anticipate he would not talk voluntarily, and he won't be given immunity to talk, officials said. Instead, the arrest gives the FBI time to finish their ongoing investigation." This intentional misuse of the Material Witness statute violated Brandon Mayfield's Fourth Amendment right to be. secure in his person, and not be arrested or imprisoned without probable cause.
43. . Brandon Mayfield's unlawful arrest and imprisonment caused him to suffer
and endure 19 days of false imprisonment, and he endured and continues to endure extreme mental anguish and humiliation, embarrassment, damage to his general reputation, damage to his reputation as a lawyer and an impairment of his earning capacity, all to his special and general damage in an amount to be determined at trial.
44. Defendants' intentional and/or reckless misconduct, as set forth above,
entitle Brandon Mayfield to punitive damages from said defendants in an amount to be determined at trial. Page 18 - COMPLAINT FOR VIOLATION OF CIVIL RIGHTS

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SECOND CLAIM FOR RELIEF Deprivation of familial rights claim for Mona Mayfield 45. Plaintiff Mona Mayfield realleges and incorporates herein paragraphs 138, above. 46. During the time when Brandon Mayfield was imprisoned, Mona Mayfield was deprived of her constitutionally guaranteed right to be with her husband, and was denied his familial companionship, love and society, all to her general damage in an amount to be determined at trial. 47. Defendants' intentional and/or reckless misconduct, as set forth above, entitle Mona Mayfield to punitive damages from said defendants in an amount to be determined at trial.
THIRD CLAIM FOR RELIEF Deprivation of familial rights claim for Shane Mayfield 48. Plaintiff Shane Mayfield realleges and incorporates herein paragraphs 138, above. 49. During the time when Brandon Mayfield was imprisoned, Shane Mayfield, was deprived of his constitutionally guaranteed right to be with his father, and was denied his familial companionship, love and society, all to his general damage in an amount to be determined at trial. 50. Defendants' intentional and/or reckless misconduct, as set forth above, entitle Shane Mayfield to punitive damages from said defendants in an amount to be determined at trial.
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FOURTH CLAIM FOR RELIEF Deprivation of familial rights claim for Sharia Mayfield 51. Plaintiff Sharia Mayfield realleges and incorporates herein paragraphs 138, above. 52. During the time when Brandon Mayfield was imprisoned, Sharia Mayfield, was deprived of her constitutionally guaranteed right to be with her father, and was denied his familial companionship, love and society, all to her general damage in an amount to be determined at trial. 53. Defendants' intentional and/or reckless misconduct, as set forth above, entitle Sharia Mayfield to punitive damages from said defendants in an amount to be determined at trial.
FIFTH CLAIM FOR RELIEF Deprivation of familial rights claim for Samir Mayfield 54. Plaintiff Samir Mayfield realleges and incorporates herein paragraphs 138, above. 55. During the time when Brandon Mayfield was imprisoned, Samir Mayfield, was deprived ofhis constitutionally guaranteed right to be with his father, and was denied his familial companionship, love and society, all to his general damage in an amount to be determihed at trial. 56. Defendants' intentional and/or reckless misconduct, as set forth above, entitle Samir Mayfield to punitive damages from said defendants in an amount to be determined at trial. Page 20 - COMPLAINT FOR VIOLATION OF CIVIL RIGHTS

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SIXTH CLAIM FOR RELIEF
Bivens claims for Brandon Mayfield arising from unlawful searches and seizures
57. Plaintiff Brandon Mayfield realleges and incorporates herein paragraphs 1-38, above.
. 58. Defendants Werder, Green, Wieners, Massey and John Does I-X, acting individually and in concert, knowingly and/or recklessly caused false and misleading search warrant affidavits to be filed in the U.S. District Court for the District of Oregon. On information and belief, plaintiff alleges that said defendants also caused false and misleading search warrant affidavits to be filed in the FISC in Washington, D.C. 59. As a direct result of said defendants' intentional and/or reckless submission of false and misleading affidavits to U.S. Courts, Brandon Mayfield and his family were subjected to broad and intrusive physical and electronic searches of their family home, law office, safety deposit box and vehicles, in violation of Brandon Mayfield's right under the Fourth Amendment of the United States Constitution to be secure in his home, law office, communications and vehicles from unreasonable searches. 60. Despite requests by Mr. Mayfield's attorneys to John Ashcroft for the removal of any illegally seized information from government records and computer databases, the DOJ and FBI have not done so. Despite requests by Mr. Mayfield's attorneys that the government destroy all copies of documents and things seized by the FBI in the searches of Mr. Mayfield's home, law office, vehicles and safety deposit boxes, the government has refused to do so and has subsequently further invaded Mr.
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Mayfield's privacy and the privacy of his family, when the wrongfully seized material became known and reported in the media.
61. The illegal and intrusive searches and seizures from Mr. Mayfield's family
home, law office, safety deposit box and vehicles have caused Mr. Mayfield to endure,
and he continues to endure, extreme mental anguish and humiliation, embarrassment, damage to his general reputation, damage to his reputation as a lawyer and an impairment of his earning capacity, all to his special and general damage in an amount to be determined at trial.
62. Defendants' intentional and/or reckless misconduct, as set forth above, entitle Brandon Mayfield to punitive damages from said defendants ~ an amount to be determined at trial.
SEVENTH CLAIM FOR RELIEF Bivens claims for Mona Mayfield arising from unlawful searches and seizures
63. Plaintiff Mona Mayfield realleges. and incorporates herein paragraphs 138, 58-60, above.
64. As a direct result of said defendants' intentional and/or reckless submission of false and misleading affidavits to U.S. Courts, Mona Mayfield was subjected to broad and intrusive physical and electronic searches of the Mayfields' family home, office, safety deposit box and vehicles, in violation of Mona Mayfield's rights under the Fourth Amendment of the United States Constitution to be secure in her home, office, vehicles and communications from unreasonable searches. These illegal and intrusive searches
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and seizures have caused Mona Mayfield extreme emotional pain and suffering, anguish and humiliation, all to her general damage in an amount to be determined at trial.
65. Defendants' intentional and/or reckless misconduct, as set forth, above entitle Mona Mayfield to punitive damages from said defendants in an amount to be determined at trial.
EIGHTH CLAIM FOR RELIEF Bivens claims for Shane Mayfield arising from unlawful searches and seizures
66. Plaintiff Shane Mayfield realleges and incorporates herein paragraphs 138, 58-60, above.
67. As a direct result of said defendants' intentional and/or reckless submission of false and misleading affidavits to U.S. Courts, Shane Mayfield was subjected to broad and intrusive physical and electronic searches ofthe Mayfields' family home, in violation of Shane Mayfield's rights under the Fourth Amendment of the United States Constitution to be secure in his home from unreasonable searches. These illegal and intrusive searches and seizures have caused Shane Mayfield extreme emotional pain, fear, insecurity, suffering, anguish and humiliation, all to his general damage in an amount to be determined at trial.
68. Defendants' intentional and/or reckless misconduct, as set forth, above entitle Shane Mayfield to punitive damages from said defendants in an amount to be determined at trial. Ill Ill Page 23 - COMPLAINT FOR VIOLATION OF CML RIGHTS .

Case 6:04-cv-01427-AA Document 1 Filed 10/04/04 Page 24 of 42
NINTH CLAIM FOR RELIEF Bivens claims for Sharia Mayfield arising from unlawful searches and seizures
69. Plaintiff Sharia Mayfield realleges and incorporates herein paragraphs 138, 58-60, above.
70. As a direct result of said defendants' intentional and/or reckless submission of false and misleading affidavits to U.S. Courts, Sharia Mayfield was subjected to broad and intrusive physical and electronic searches of the Mayfields' family home, in violation of Sharia Mayfield's rights under the Fourth Amendment of the United States Constitution to be secure in her home from unreasonable searches. These illegal and intrusive searches and seizures have caused Sharia Mayfield extreme emotional pain and suffering, fear, insecurity, suffering, anguish and humiliation, all to her general damage in an amount to be ·determined at trial.
71. Defendants' intentional and/or reckless misconduct, as set forth, above entitle Sharia Mayfield to punitive damages from said defendants in an amount to be determined at trial.
TENTH CLAIM FOR RELIEF Bivens claims for Samir Mayfield arising from unlawful searches and seizures
72. Plaintiff Samir Mayfield realleges and incorporates herein paragraphs 138, 58-60, above.
73. As a direct result of said defendants' intentional and/or reckless submission of false and misleading affidavits to U.S. Courts, Samir Mayfield was subjected to broad and intrusive physical and electronic searches of the Mayfields' family home, in violation Page 24 - COMPLAINT FOR VIOLATION OF CML RIGHTS

Case 6:04-cv-01427-AA Document 1 Filed 10/04/04 Page 25 of 42
of Samir Mayfield's rights under the Fourth Amendment of the United States Constitution to be secure in his home from unreasonable searches. These illegal and intrusive searches and seizures have caused Samir Mayfield extreme emotional pain and suffering, fear, insecurity, suffering, anguish and humiliation, all to his general damage in an amount to be determined at trial.
74. Defendants' intentional and/or reckless misconduct, as set. forth above,· entitle Samir Mayfield to punitive damages from said defendants in an amount to be determined at trial.
ELEVENTH CLAIM FOR RELIEF Brandon Mayfield's Privacy Act Claim 75. Plaintiff Brandon Mayfield realleges and incorporates herein paragraphs 1-38, above. 76. From at least the day before Brandon Mayfield's arrest on May 6, 2004, until the date Mr. Mayfield was released from custody, unknown persons within the DOJ and/or the FBI, agencies of the federal government within the meaning of the U.S. Privacy Act, 5 U.S.C. § 552a, began "leaking" information contained within DOJ and FBI files to the national and international media regarding Brandon Mayfield and his arrest. In fact, the press was "tipped off' to Mr. Mayfield's arrest, and even though he was booked under a fictitious name, the media was reporting within 24 hours the fact of Mr. Mayfield' s arrest, his profession, his place of residence, his religion, and that the FBI linked him to the Madrid bombings by fingerprint evidence. Michael Isikoff, an
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investigative correspondent for NEWSWEEK, reported in an on-line news story titled "An
American Connection?":
"May 6 - FBI agents today detained a Portland, Ore., lawyer after receiving evidence from Spanish authorities that the man's fingerprints allegedly were found on bomb-related evidence associated with the March 11 railway attack in Madrid that killed 191 people and woUn.ded 2,000 people, NEWSWEEK has learned. The arrest of the lawyer was described by federal law-enforcement authorities as a major investigative breakthrough that for the first time suggests links between an individual inside the United States and the Madrid bombing.
The man was identified as Brandon Mayfield, a convert to Islam who is tangentially linked to one of the chief defendants in the so-called 'Portland Seven' case - a suspected terror cell in Oregon whose six surviving members pled guilty last year of plotting to fight for the Taliban against U.S. soldiers during the war in Afghanistan.
Sources said that Mayfield had been under round-the-clock surveillance by the FBI for some time. According to lawenforcement sources, he was picked up by agents in Portland today and is being held as a "material witness" in a Grand Jury investigation-a status that allows the Justice Department to hold him in secret without formally filing charges against him.
***
Law-enforcement officials today provided few details about the evidence against Mayfield, but said the alleged presence of physical evidence tying the man to the Madrid bombing made it an extremely serious matter. Sources said Mayfield's fingerprints were found on a bag containing bomb material
connected to the Spanish attack. * * *" (Emphasis added.)
77. MSNBC reporter Joe Scarborough interviewed Mr. Isikoff on May 6, 2004:
[Scarborough:] "There's big news today in the war on terror. An American may be connected to the Madrid attacks that killed 191 people.
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Newsweek's Michael Isikoffbroke the story tonight. And he joins us now on the phone from Silver Spring, Maryland.
Michael, tell us about the story that you broke tonight.
[Michael Isikoff, ''Ne"'."sweek":] "Well, it's a pretty startling development. There are still a lot of un~wered questions.
But, basically, it boils down to this. Some time ago, some weeks ago, Spanish authorities presented the FBI with some evidence showing that the fingerprints found on a bag containing bomb material connected with the Spanish bombing was, in fact, from a Portland, Oregon, lawyer, a man by the name of Brandon Mayfield. He's an American convert to Islam.
He had popped up in connection [with] the case with the Portland seven case. This is the case of the seven individuals charged with plotting with go to Afghanistan after September 11 to fight for the Taliban against U.S. soldiers. Mr. Mayfield had represented the interests of one of the main defendants in that case, a man by the name of Jeffrey Battle, in a custody dispute that arose after Battle was picked up by the FBI.
***
But this was taken extremely seriously by the FBI. He's been on around-the-clock surveillance. And just today, this afternoon, he was picked up, detained, and is being held as a material witness in a grand jury investigation. Material witness is a technique that's commonly used by the FBI since September 11 and the Justice Department to detain all sorts of suspects. No formal charges have been filed against him.
And it is somewhat controversial, because material witness matters are not made public.
There was a court proceeding today. There was nothing made public about it. We learned about it from law enforcement sources." (Emphasis added.)
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78. On May 7, 2004, Mr. Mayfield's hometown newspaper, THE WICHITA
EAGLE, in an article titled Madrid Probe Nets Ex-Kansan, reported:
"Brandon Mayfield ....was taken into custody on a material witness warrant, said a senior law enforcement official in Washington, D.C., speaking on condition of anonymity. ... The FBI also searched Mayfield's home, which he shares with his wife, the official said. Mayfield's fingerprints were found on materials related to the Madrid bombings, said a second senior law enforcement official, also speaking on condition ofanonymity. " (Emphasis added.)
These leaks were repeated and reported throughout the world. On May 7, 2004, Agence
France Presse reported:
"FBI agents detained a lawyer tied to an Islamist cell, the first US detention in connection with March bombings, which killed 191 in Madrid, federal law enforcement official said Thursday.
Brandon Mayfield was taken into custody in the northwestern city of Portland, Oregon, after Spanish authorities gave the Federal Bureau of Investigation evidence linking him to the attacks, one official said, speaking on condition ofanonymity.
Mayfield was held as a 'material witness' in a grand jury investigation, meaning he may be held indefinitely without charges, the official said.
Sources at the Federal Bureau of Investigation told the weekly that Spanish authorities had found Brandon Mayfield's fingerprints on a bag that had carried explosives used in the March 11 attack, which has been tied to radical Islamists.
Mayfield was detained in Portland. The convert to Islam had served as a child-custody lawyer for one of the Portland Seven, a group of Muslims accused [of] attempting to wage war on the United States." (Emphasis added.)
Ill
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79. By May 8, 2004, the national and international press was reporting that
"The FBI found 15 points matching Mayfield's fingerprint when they compared it to the
one found in the bag." Rosa Townsend, EL PAIS, An Attorney Linked to the Killings was Arrested in the USA, May 8, 2004; Editorial, THE OREGONIAN, Fingerprints Links Oregon with Spain, May 8, 2004, etc. At no time prior to Spain's announcement of the
match of LFP #17 with Mr. Daoud, and the release of Mr. Mayfield from custody, did the
FBI or DOJ reveal Spain's disagreement with the FBI's claim that LFP #17 matched Mr.
Mayfield's fingerprint. 80. Throughout Mr. Mayfield's imprisonment, the national and international
media continued to report leaks from official sources regarding, for example, the FBI's
abiding confidence that Brandon Mayfield's fingerprint matched the Spanish fingerprint,
links between Mr. Mayfield and Al Qaeda, the fact that Mr. Mayfield had been under FBI surveillance for weeks, government strategy regarding the pending grand jury
proceedings, etc. For example, on May 8, 2004, the Oregonian reported:
"Officials have been watching Brandon Mayfield of Aloha since two weeks after the March 11 Madrid terror bombings. Federal investigators are examining whether a Washington County lawyer shipped materials later used by terrorists to blow up four commuter trains in Madrid on March 11, a law enforcement official said Friday.
He isn't likely to be taken before a federal grand jury soon because investigators anticipate he would not talk voluntarily, and he won't be given immunity to talk, officials said. Instead, the arrest gives the FBI time to finish their ongoing investigation." (Emphasis added.) Ill
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The New York Times, May gth, reported:
"The authorities arrested a Portland lawyer in connection with the Madrid railway bombings before they had a clear idea about the strength of their case and they cut short a planned covert surveillance of him because of concerns that information was leaking out to the news media, law enforcement officials said Friday.
On Thursday the FBI arrested the lawyer, Brandon Mayfield, 37, on a material witness warrant in connection with the attacks, which killed 191 people on March 11. Mr. Mayfield, who practices immigration and family law, is a former Army lieutenant and a convert to Islam.
The law enforcement officials said they were afraid that Mr. Mayfield, who is originally from Kansas, might become a fugitive if he knew he was under suspicion. So monitoring that was just getting started was abruptly halted. Mr. Mayfield was arrested before investigators had fully examined his phone records, before they knew if he had ever met with any of the bombing suspects, before they knew if he had ever traveled to Spain or elsewhere overseas. His relatives said he had not been out of the United States for 10 years." (Emphasis added.)
USA Today, May 10th, reported:
"U.S. authorities on Sunday stood by fingerprint analyses that led to last week's detention of a local attorney as a potential witness in the railway bombings March 11 in Madrid, said a federal law eeforcement source with knowledge of the investigation." "Before his arrest Thursday, Mayfield had been the subject of intense surveillance by federal agents, the U.S. official said. The surveillance operation started within days of the March bombings. It was abruptly halted, and Mayfield was taken into custody, when his name was leaked and authorities began. to fear the attorney might flee." (Emphasis added.)
Ill
Ill
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The Independent (London), May 13th , reported:
"US officials appear willing to concede that Mr. Mayfield has no record of traveling to Spain, but suggest he might have done so in secret using false documents. He has not been formally arrested or charged with any crime, and the LA . Times reported disagreement in law enforcement ranks about the wisdom of taking him into custody before they had more of a case against him." (Emphasis added.)
Associated Press Newswire, May 16th , reported:
"According to senior law enforcement officials who spoke on condition· of anonymity, the FBI is convinced the fingerprint in Madrid is Mayfield's." (Emphasis added.)
Even after Mr. Mayfield was released from jail, even after Spain concluded that the
fingerprints found after the bombing belonged to Daoud, the leaks continued. The New
York Times, May 22, 2004:
"A senior FBI official said on Friday that Mr. Mayfield had not been ruled out as a suspect and continued to be a subject of interest. 'The whole case hasn't played out yet,' the official said." (Emphasis added.)
81. The "leaks" by DOJ and/or FBI employees violated both the U.S. Privacy
Act and DOJ/FBI regulations and policies.
82. The Privacy Act prohibits the DOJ and the FBI from disclosing records
kept by the DOJ and the FBI pertaining to Mr. Mayfield. The DOJ and FBI, however,
have chosen to ignore this federal law, and leak to the media details regarding its
activities in combating so-called terrorists. For example, employees of the DOJ and/or
FBI leaked to the media information pertaining to Dr. Wen Ho Lee during their
investigation of him in the late 1990s on changes of espionage at Los Alamos National
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Case 6:04-cv-01427-AA Document 1 Filed 10/04/04 Page 32 of 42
Laboratory. And employees of the DOJ and/or FBI leaked to the media information pertaining to Dr. Steven J. Hatfill during their investigation of him as a suspect in the 2001 anthrax mailings.
83. The leaks to the media concerning Brandon Mayfield also violated DOJ regulations and FBI policies. DOJ regulations prohibit DOJ and FBI personnel from releasing information about a criminal suspect which could reasonably be expected to influence the outcome of a pending or future trial "from the time a person is the subject of a criminal investigation until any proceeding resulting from such an investigation has been terminated by trial or otherwise." 28 C.F.R. ·§ 50.2(b). Furthermore, when a suspect is arrested, the regulations prohibit releasing information "relating to the circumstances of an arrest or investigation [which] would be .highly prejudicial or the where the release thereof would serve no law enforcement function." Id. The regulations give even more detailed guidance when it comes to releasing information regarding investigative procedures. "The release of certain types of information generally tends to create dangers of prejudice without serving a significant law enforcement function. Therefore, personnel of the Department should refrain from making available the following: . . . reference to investigative procedures such as fingerprints." 28 C.F.R. § 50.2(b)(6).
84. Notwithstanding the detailed regulations set forth above, DOJ and/or FBI personnel released specific information regarding their claim of a fingerprint identification of Brandon Mayfield and linkage with the Madrid bombing tragedy. Ill Page 32 - COMPLAINT FOR VIOLATION OF CIVIL RIGHTS

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85. The reason for these regulations is publicly published by the FBI on its
website. There, the FBI asks and answer the following question: , "[Question:] Can I obtain detailed information about a current FBI investigation that I see in the news?
[Answer:] No. Such information is protected from public disclosure, in accordance with current faw and DOJ and FBI policy. This policy preserves the integrity of the investigation and the privacy of individuals involved in the investigation prior to any public charging for violations of the law. It also serves to protect the rights of people not yet charged with a crime." See, www.FBI.gov/aboutus/faqs/faqsone.htm. 86. The actions of the DOJ/FBI were intentional and willful, and these disclosures caused Brandon Mayfield to endure extreme mental anguish and humiliation, embarrassment, damage to his general reputation, damage to his reputation as a lawyer and impairment of his earning capacity. Mr. Mayfield has suffered.and endured actual damage and is entitled to compensatory damages from the DOJ/FBI in an amount to be determined at trial, and for his reasonable and necessary costs of the action together with reasonable attorney fees as determined by the Court. Plaintiff requests that the Court seek an advisory verdict on this claim from the jury empanelled to try the other issues in
this case. TWELFTH CLAIM FOR RELIEF
Claim for injunctive and declaratory relief re FISA searches and surveillance 87. Plaintiffs Brandon Mayfield, Mona Mayfield, Shane Mayfield, Sharia
Mayfield, and Samir Mayfield reallege and incorporate herein paragraphs 1-38, above.
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88. Plaintiffs allege, based on information and belief, that pursuant to FISA they were subjected to secret surveillance and searches of their family home, law office, vehicles, and communications. Plaintiffs ·allege, based on inforination and belief, that pursuant to FISA the information collected by said secret surveillance and searches has been disseminated to at least seven agencies of the Federal Government, including but not limited to the Central Intelligence Agency, the National Security Council, the Department of Defense, the Department of Homeland Security, the Department of Justice/Federal Bureau of Investigation, the Department of the Treasury and the National Security Agency. Prior to the commencement of this lawsuit, Mr. Mayfield, through his court appointed public defenders, demanded that defendant Ashcroft detail the FISA searches and surveillance performed, and purge all government files of information collected. Defendant Ashcroft has refused, and said agencies continue to retain information collected during the illegal and unconstitutional searches and surveillance that were perpetrated against plaintiffs.
89. The collection, dissemination and retention of information pursuant to FISA, as described herein, violate plaintiffs' constitutionally protected right to be secure from unreasonable searches and seizures, and constitutionally protected right to privacy. Plaintiffs seek a declaration:
a. That the provisions of the Patriot Act and FISA which permit the federal government to secretly collect, disseminate and retain' information from a person without first requiring the government to
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Case 6:04-cv-01427-AA Document 1 Filed 10/04/04 Page 35 of 42
demonstrate to a court the existence of probable cause that the person has committed a crime, are unconstitutional; b. That the provisions of the Patriot Act and FISA which permit the federal government to secretly perform "sneak and peek" physical searches of the home, office and vehicles of a person without first requiring the government to demonstrate to a court the existence of probable cause that the person has committed a crime, are · unconstitutional; c. That the provisions of the Patriot Act and FISA which permit the federal government to perform electronic surveillance and wiretaps of a person without first requiring the government to demonstrate to a court the existence of probable cause that the person has committed a crime, are unconstitutional. 90. Based on information and belief, plaintiffs allege that the federal government utilized the challenged provisions of the Patriot Act and FISA to secretly and wrongfully collect, disseminate and retain information and communications from them,. Because defendants Ashcroft, the DOJ and FBI refuse to divulge the full extent of said collection, dissemination and retention of information and communications, because said collection, dissemination and retention of information and communications violate plaintiffs' FoUrth Amendment right to be secure in their home, law office, vehicles and communications from unreasonable searches and seizures, and because plaintiffs have no
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other plain, speedy or adequate remedy at law, plaintiffs seek an injunction requiring defendants Ashcroft, the DOJ and the FBI:
a. To retrieve and destroy all illegally collected, disseminated and retained information and communications collected pursuant to FISA authorized searches and surveillance relating to plaintiffs from government agencies and computer databases;
b. To seek the return and destruction from agencies of other governments of all information and communications collected pursuant to FISA authorized searches and surveillance relating to plaintiffs which was illegally collected and then disseminated to said agencies;
c. To refrain from distributing to any requesting party any information illegally collected or retained collected pursuant to FISA authorized searches and surveillance relating to plaintiffs. THIRTEENTH CLAIM FOR RELIBF Claim for return of property improperly seized
91. Plaintiffs Brandon Mayfield, Mona Mayfield, Shane Mayfield, Sharia Mayfield and Samir Mayfield reallege and incorporate herein paragraphs 1-38, above.
92. Prior to the commencement of this lawsuit, Mr. Mayfield's criminal defense attorneys requested that defendants Ashcroft, DOJ and FBI return all material seized from Mr. Mayfield pursuant to search warrants issued by the U.S. District Court for the District of Oregon, and destroy all copies of said material. Although the DOJ and Page 36 - COMPLAINT FOR VIOLATION OF CML RIGHTS

Case 6:04-cv-01427-AA Document 1 Filed 10/04/04 Page 37 of 42
FBI have returned originals, they have refused to destroy copies ofsaid material. Based upon information and belief, plaintiffs allege that copies of said materials have been disseminated to various government agencies and departments..
93. Despite the fact that neither Brandon Mayfield nor any member of his family has committed any crime, defendants Ashcroft; the DOJ and FBI are insisting that copies of all material seized from his family home, law office, safety deposit box and vehicles remain available for use by said defendants, remain available for inspection by additional government employees and agencies, and remain available to all·government agencies and departments that received copies of the material. Because Mr. Mayfield has no other plain, speedy or adequate remedy at law, he seeks an injunction requiring defendants Ashcroft, the DOJ and the FBI to immediately return or destroy all copies of material or information seized, disseminated, during the investigation of. Brandon Mayfield. Mr. Mayfield also seeks an injunction prohibiting defendants Ashcroft, the DOJ and the FBI from using said material or information in any way, or disseminating said material or information relating to Brandon Mayfield or his family to any government agency or government department or government employee, or to any nongovernment person or entity.
WHEREFORE, plaintiffs pray for relief, as follows: On Plaintiff Brandon Mayfield's First Claim for Relief, for special and general damages, together with punitive damages, in amounts to be determined at trial from defendants Werder, Green, Wieners, Massey, and John Does I-X arising from Mr. Mayfield's false arrest and imprisonment, all of which caused him to endure extreme Page 37 - COMPLAINT FOR VIOLATION OF CML RIGHTS

Case 6:04-cv-01427-AA Document 1 Filed 10/04/04 Page 38 of 42
mental anguish and humiliation, embarrassment, damage to his general reputation, damage to his reputation as a lawyer and impairment of his earning capacity.
On PlaintiffMona Mayfield 's Second Claim for Relief, general damages, together with punitive damages, in an amount to be determined at trial from defendants Werder, Green, Wieners, Massey, and John Does 1-X arising from their denial of her constitutionally guaranteed right to be with her husband, and from the denial of her husband's familial companionship, love and society.
On Plaintiff Shane Mayfield's Third Claim for Relief, general damages, together with punitive damages, in an amount to be determined at trial from defendants Werder, Green, Wieners, Massey, and John Does 1-X arising from their denial of his constitutionally guaranteed right to be with his father, and from the denial of his father's familial companionship, love and society.
On PlaintiffSharia Mayfield 's Fourth Claim for Relief, general damages, together with punitive damages, in an amount to be determined at trial from defendants Werder, Green, Wieners, Massey, and John Does 1-X arising from their denial of her constitutionally guaranteed right to be with her father, and from the denial of her father's familial companionship, love and society.
On Plaintiff Samir Mayfield 's Fifth Claim for Relief, general damages, together with punitive damages, in an amount to be determined at trial from defendants Werder, Green, Wieners, Massey, and John Does I-X arising from their denial of his constitutionally guaranteed right to be with his father, and from the denial of his father's familial companionship, love and society. Page 38 - COMPLAINT FOR VIOLATION OF CIVIL RIGHTS

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On Plaintiff Brandon Mayfield 's Sixth Claim for Relief, for special and general damages, together with punitive damages, in amounts to be determined at trial from defendants Werder, Green, Wieners, Massey, and John Does I-X arising from the illegal and intrusive searches, surveillance and seizures from his family home, law office, safety deposit box, vehicles and communications, all of which caused him to endure extreme mental anguish and humiliation, embarrassment, damage to his general reputation, damage to his reputation as a lawyer and impairment of his earning capacity.
On Plaintiff Mona Mayfield 's Seventh Claim for Relief, for special and general damages, together with punitive damages, in amounts to be determined at trial from defendants Werder, Green, Wieners, Massey, and John Does I-X arising from the illegal and intrusive searches, surveillance and seizures from her family home, law office, safety deposit box, vehicles and communications, all of which caused her to endure extreme mental anguish and humiliation, and embarrassment.
On Plaintiff Shane Mayfield 's Eighth Claim for Relief, for special and general damages, together with punitive damages, in amounts to be determined at trial from defendants Werder, Green, Wieners, Massey, and John Doesl-X arising from the illegal and intrusive searches, surveillance and seizures from his family home which caused him to endure extreme mental anguish and humiliation, and embarrassment.
On Plaintiff Sharia Mayfield's Ninth Claim for Relief, for special and general damages, together with punitive damages, in amounts to be determined at trial from defendants Werder, Green, Wieners, Massey, and John Does I-X arising from the illegal
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Case 6:04-cv-01427-AA Document 1 Filed 10/04/04 Page 40 of 42
and intrusive searches, surveillance and seizures from her family. home which caused her to endure extreme mental anguish and humiliation, and embarrassment.
On Plaintiff Samir Mayfield 's Tenth Claim for Relief, for special and general damages, together with punitive damages, in amounts to be determined at trial from defendants Werder, Green, Wieners, Massey, and John Does 1-X arising from the illegal and intrusive searches, surveillance and seizures from his family home which caused him to endure extreme mental anguish and humiliation, and embarrassment.
On PlaintiffBrandon Mayfield 's Eleventh Claim for Relief, for actual damages in an amount to be determined at trial, together with his reasonably incurred attorney fees, from defendants DOJ and FBI arising from their wrongful and inaccurate disclosures which caused him to suffer extreme emotional distress, humiliation, embarrassment, damage to his general reputation, damage to his reputation as a lawyer and impairment of his earning capacity.
On Plaintiffs Brandon Mayfield, Mona Mayfield, Shane Mayfield, Sharia Mayfield and Samir Mayfield 's Twelfth Claim for Relief, for a declaration that the portions of the Patriot Act and FISA which permit the federal government to (a), secretly collect, disseminate and retain information from a person, (b) secretly perform "sneak and peek" physical searches of the home, office and vehicles of a person, and (c) perform electronic surveillance and wiretaps of a person, all without first requiring the government to demonstrate to a court the existence of probable cause that the person has committed a crime, are unconstitutional. Plaintiffs also seek an injunction requiring defendants Ashcroft, the DOJ and the FBI to (a) retrieve and destroy all illegally collected,
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disseminated and retained information and communications relating to plaintiffs from government agencies and computer databases, (b) seek the return and destruction from agencies of other governments of all information and communications relating to plaintiffs which were illegally collected and then disseminated to said agencies, and (c) refrain from distributing to any requesting party any·information ill,egally collected or retained relating to plaintiffs.
On Plaintiffs Brandon Mayfield, Mona Mayfield, Shane Mayfield, Sharia Mayfield and Samir Mayfield 's Thirteenth Claim for Relief, for an injunction requiring defendants Ashcroft, the DOJ and the FBI to immediately return all material or information seized during the investigation of Brandon Mayfield and requiring defendants to destroy all copies of said material retained by the Federal government. Mr. Mayfield also seeks an injunction prohibiting defendants Ashcroft, the DOJ and the FBI from using said material or information in any way, or disseminating said material or information relating to Brandon Mayfield or his family to any government agency or government department or government employee, or to any non-government person or entity.
Plaintiffs also seek their costs and disbursements necessarily incurred herein.
DATED this 4-r_!.. day of October, 2004.
THE SPENCE LAW FIRM LLC
Gerry Spence Wyoming Bar No. 4-0657
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Case 6:04-cv-01427-AA Document 1 Filed 10/04/04 Page 42 of 42 ROSENTHAL & GREENE, P.C. Oregon State Bar No. 72217 MICHELE LONGO EDER, LLC Michele Longo Eder Oregon State Bar No. 79305 Of Attorneys for Plaintiffs
JURY TRIAL DEMANDED and ADVISORY JURY REQESTED
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 Case 6:04-cv-01427-AA Document 123 Filed 12/06/06 Page 1 of 11

Gerry Spence, Wyoming Bar No. 4-0657 gls(q?gerryspence. c~m The Spence Law Firm LLC 15 South Jackson Street, P.O. Box 548 Jackson, WY 83001 Telephone: (800)967-2117 Facsimile: (307)733-5248 Elden M. Rosenthal, OSB No. 72217 elden(@,rosenthal-greene.com Rosenthal & Greene, P.C. 1001 S.W. Fifth Avenue, Suite 1907 Portland, OR 97204 Telephone: (503)228-3015 Facsimile: (503)228-3269 Michele Longo Eder, OSB No. 79305 michele@michelelongoeder.com Michele Longo Eder, LLC 4 SW H~gh Street, P.O. Box 1530 Newport, OR 97365 Telephone: (541) 265-3337 Facsimile: (541) 265-6633 Of Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

BRANDON MAYFIELD, an individual,

MONA MAYFIELD, an individual, and

SHANE MAYFIELD, SHARIA MAYFIELD, CASE NO. CV-04-1427-PA

and SAMIR MAYFIELD, individuals, by and

through their guardian ad !item Mona

Mayfield,

AMENDED COMPLAINT FOR

DECLARATORY JUDGMENT

Plaintiffs,

v.

UNITED STATES OF AMERICA,

Defendant.

Plaintiffs allege:

INTRODUCTION

1. The Foreign Intelligence Surveillance Act (FISA), as amended by the Page 1 -AMENDED COMPLAINT FOR DECLARATORY JUDGMENT

Case 6:04-cv-01427-AA Document 123 Filed 12/06/06 Page 2 of 11

Patriot Act, permits the federal government to secure search warrants authorizing covert physical searches of residences and law offices, and also permits the federal government to secure warrants authorizing electronic surveillance and wiretaps of residences and law offices. The covert physical searches, electronic surveillance and wiretaps permitted by PISA, as amended by the Patriot Act, may be authorized by the Poreign Intelligence Security Court (PISC) without the federal government even claiming that there is probable cause to believe the target of the searches or surveillance has committed a crime. The covert physical searches, electronic surveillance and wiretaps permitted by PISA, as amended by the Patriot Act, may be authorized by the PISC even if the primary purpose of the requested searches and electronic surveillance is not the collection of foreign intelligence.
2. This Amended Complaint challenges the constitutionality of those portions of PISA, as amended by the Patriot Act, that allow the PISC to authorize covert physical searches, electronic surveillance and wiretaps of ~esidences and law offices without requiring the federal government_ to prove there is probable cause that the target of the requested searches and/or surveillance committed a crime, or without requiring the federal government to assert the primary purpose of the activities is to gather foreign intelligence. This Amended Complaint challenges the constitutionality of these provisions of PISA, as amended by the Patriot Act, on their face and not as applied in respect to Plaintiffs.
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Case 6:04-cv-01427-AA Document 123 Filed 12/06/06 Page 3 of 11

PARTIES 3. Brandon Mayfield, his wife Mona Mayfield, and their children Shane Mayfield, Sharia Mayfield, and Samir Mayfield are United States citizens living in Oregon. Mona Mayfield is the duly appointed guardian ad !item of said children.
JURISDICTION 4. This Court has jurisdiction of these claims pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1343(a)(3), and 28 U.S.C. § 2201.
FACTUAL ALLEGATIONS 5. On March 11, 2004, in Madrid, Spain, terrorists' bombs exploded on commuter trains, murdering 191 persons, and injuring another 1600 persons, including three U.S. citizens. International horror echoed the feelings Americans experienced after the cataclysm .of September 11th. Shortly after the bombings, the Spanish National Police ("SNP") recovered fingerprints from a plastic bag containing explosive detonators. The bag was found in a Renault van located near the site of the carnage. 6. On March 13, 2004, the SNP submitted digital photographs of the latent fingerprints lifted from the bag to Interpol Madrid, which then transmitted the digital photographs to the FBI in Quantico, Virginia. 7. On or about March 17, 2004, FBI Senior Fingerprint Examiner Terry Green erroneously concluded that Mr. Mayfield's left index fingerprint matched LFP #17, the fingerprint discovered by the SNP.
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Case 6:04-cv-01427-AA Document 123 Filed 12/06/06 Page 4 of 11

8~ On or about March 20, 2004, the FBI issued a formal report
erroneously matching Mf. Mayfield' s print and LFP # 17.
9. At some point in time after the FBI' s wrongful fingerprint identification, the FBI made application to the Foreign Intelligence Security Court (FISC) for an order authorizing the FBI to:
a. Place electronic listening devices ("bugs") in the shared and intimate rooms of the Mayfield family home;
b. Execute repeated covert searches of the Mayfield family home, occurring when the family was away from the home, which, to add insult to injury, were performed so incompetently that the FBI left traces of their searches behind, causing the Mayfield family to be frightened and believe that they had been burglarized;
c. Execute covert searches of the Law Office of Brandon Mayfield and examine confidential client materials;
d. Place electronic listening devices ("bugs") in the Law Office of Brandon Mayfield; and
e. Place wiretaps on Mr. Mayfield' s office and home phones. 10. The application for the. FISA order before the FISC was personally approved by John Ashcroft, then the Attorney General of the United States. The
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Case 6:04-cv-01427-AA Document 123 Filed 12/06/06 Page 5 of 11

application did not assert that there was probable cause that Brandon Mayfield, or any member of his family, had committed a crime. The application did not assert that the primary purpose of the requested covert physical searches and requested electronic surveillance was the collection of foreign intelligence. Instead, pursuant to the Patriot Act, the application asserted only that "a significant purpose" of the requested covert physical searches and requested electronic surveillance was the collection of foreign intelligence. The applications were approved by the FISC, acting in accordance with FISA as amended by the Patriot Act.
11. Pursuant to the orders of the FISC, the FBI performed covert physical searches of the Mayfield home and the law office of Brandon Mayfield.
12. Pursuant to orders of the FISC, the FBI also conducted electronic surveillance targeting Mr. Mayfield at the Mayfield home and at Mr.. Mayfield's law office.
13. FBI agents took approximately 335 photographs inside the Mayfield residence, and additional photographs were also taken inside Mr. Mayfield's law office, by FBI agents during the FISC-authorized searches.
14. It is unknown to Mr. Mayfield what, exactly, the U.S. government learned from Spain between March 17th and April 2nd. On April 2nd the FBI sent Mr. Mayfield's fingerprints to Spain. By that date it is believed that the U.S. government had already been advised by the Spanish government that Moroccan
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Case 6:04-cv-01427-AA Document 123 Filed 12/06/06 Page 6 of 11

immigrants were suspects in the Madrid bombing and had been taken into custody, and that the Spanish government was not aware of any information connecting the Moroccans with Mr. Mayfield or anyone in the U.S.
15. The SNP examined the FBI's report, and Mr. Mayfield's fingerprints, and concluded that there were dissimilarities in the comparison ,of the two prints for which there was no explanation. On April 13th the SNP provided a written report to the FBI explaining that they had compared LFP #17 to Mr. Mayfield's fingerprints, and stated their conclusion that there was no match.
16. Despite having been told by the SNP that LFP #17 and Mr. Mayfield' s print were not a match, knowing what was at stake and in the furtherance of their own personal and institutional interests, the FBI personnel continued to insist that their match of the prints was correct.
17. On April 21, 2004, the FBI sent one or more agents to Madrid, Spain, to meet with their Spanish counterparts. Their ·intent and purpose was to exert whatever influence and pressure necessary to convince the SNP of the correctness of the FBI match. Spanish sources have publidy stated that still the Spanish authorities who met with the FBI agents on April 21st "refused to validate" the FBI's conclusion that LFP #17 and the known print of Mr. Mayfield were a match.
18. The FBI remained undaunted. Even though the FBI's claim that LFP # 17 matched Mr. Mayfield' s left index. finger was directly and competently
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challenged by the SNP, the FBI sought to bolster its conclusion by the collection of hoped for corroboration. The FBI continued to use the powers and secrecy of FISA, as amended by the Patriot Act, to perform covert physical searches of Brandon Mayfield's home and law office, and to conduct electronic surveillance, including wiretaps of Mr. Mayfield's home and law office. However, the government's intensive surveillance and investigation of Mr. Mayfield uncovered no criminal links whatsoever with Spain or the Madrid bombings.
19. On May 6, 2006, Brandon Mayfield was arrested. His family was not told where he was being held. He was told, and his family was told, that he was being held as a primary suspect on offenses punishable by death.
20. On May 191\ the SNP advised the FBI, and on May 20th news reports revealed, that Spain had matched the Madrid fingerprint with an Algerian, Mr. Ouhane Daoud. The FBI now admits that its fingerprint identification of Brandon Mayfield was an error, and, incredibly, the FBI now states that LFP # 17 is "of no value for identification purposes."
21. This lawsuit seeks to affirm that not even a "War on Terror" allows the federal government to deprive U.S. citizens of their constitutionally protected rights to liberty and to enjoy the privacy and security of their homes and offices.
CLAIM FOR DECLARATORY RELIEF 22. Plaintiffs reallege and incorporate herein paragraphs 1 - 23, above.
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23. Pursuant to PISA, as amended by the Patriot Act, Plaintiffs were subjected to covert surveillance and searches of their family home, law office, vehicles, and communications. Pursuant to PISA, as amended by the Patriot Act, the information collected by said covert surveillance and searches was maintained in government files, and derivative PISA materials were distributed to certain government agencies and departments outside the DOJ and derivative materials remain in government files.
24. Plaintiffs, through their lawyers, demanded that Defendant reveal to Plaintiffs the PISA applications, PISA orders and related documents, and further demanded Defendant remove from government files derivative PISA materials relating to Plaintiffs. Plaintiffs have insisted that PISA, as amended by the Patriot Act, is unconstitutional in the particulars set forth herein, and that therefore Defendant may not continue to retain derivative materials in government files. Defendant refuses to reveal to Plaintiffs the PISA applications, PISA orders and related documents pertaining to Plaintiffs. Defendant denies that FISA, as amended by the Patriot Act, is unconstitutional.
25. Defendant utilized the challenged provisions of PISA, as amended by the Patriot Act, to secretly collect, disseminate and retain information and communications seized from Plaintiffs' home and law office. Because Defendant refuses to identify and destroy all derivative materials in government files as a
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result of the physical searches and electronic surveillance performed by the government, because Plaintiffs fear the future uses of the derivative materials in government files, because Plaintiffs fear future uses of FISA, as amended by the Patriot Act, and because Plaintiffs have no other plain, speedy or adequate remedy at law, Plaintiffs seek a declaratory judgment that 50 U.S.C. §§ 1804 and 1823, as amended by the Patriot Act, violate the Fourth Amendment of the United States Constitution, on their face, because they:
a. permit the federal government to perform covert physical searches and electronic surveillance and wiretaps of the home, office and vehicles of a person without first requiring the government to demonstrate to a court the existence of probable cause that the person has committed a crime;
b. permit the federal government to perform covert physical searches and electronic surveillance and wiretaps of a person without first requiring the government to demonstrate to a court that the primary purpose of the searches and surveillance is to obtain foreign intelligence information; and
c. permit the federal government to covertly collect, disseminate and retain information collected through covert physical searches and electronic surveillance without first requiring the government to
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Case 6:04-cv-01427-AA Document 123 Filed 12/06/06 Page 10 of 11

demonstrate to a court the existence of probable cause that the person who is the target ofphysical searches and electronic surveillance has committed a crime, or, alternatively, that the primary purpose of the searches and surveillance are to obtain foreign intelligence information. WHEREFORE, Plaintiffs pray for issuance of a declaratory judgment as set forth above. Plaintiffs also seek their costs and disbursements necessarily incurred herein. DATED this 27th day of November, 2006.
THE SPENCE LAW FIRM LLC
Gerry Spence Wyoming Bar No. 4-0657
ROSENTHAL & GREENE, P.C.
Elden M. Rosenthal Oregon State Bar No. 72217 MICHELE LONGO EDER, LLC
Michele Longo Eder Oregon State Bar No. 79305 Page 10 - AMENDED COMPLAINT FOR DECLARATORY JUDGMENT

Case 6:04-cv-01427-AA Document 123 Filed 12/06/06 Page 11 of 11

Of Attorneys for Plaintiffs Page 11 - AMENDED COMPLAINT FOR DECLARATORY JUDGMENT

 
 IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

BRANDON MAYFIELD, an individual, MONA MAYFIELD, an individual, and SHANE MAYFIELD, SHARIA MAYFIELD, and SAMIR MAYFIELD, individuals, by and through their guardian ad litem Mona Mayfield,

Civil No. 04-1427-AA OPINION AND ORDER

Plaintiffs,

vs.

UNITED STATES OF AMERICA,

Defendant.

Gerry Spence The Spence Law Firm LLC 15 South Jackson Street, P.O. Box 548 Jackson, Wyoming 83001

Elden M. Rosenthal Rosenthal & Greene, P.C. 1001 S.W. Fifth Avenue, Suite 1907 Portland, Oregon 97204

Michele Longo Eder Michele Longo Eder, LLC 4 SW High Street, P.O. Box 1530 Newport, Oregon 97365
Attorneys for plaintiffs

Page 1 - OPINION AND ORDER

Peter D. Keisler Assistant Attorney General Karin J. Immergut United States Attorney Jeffrey S. Bucholtz Principal Deputy Assistant Attorney General Elizabeth J. Shapiro Assistant Director Renee S. Orleans Nicholas A. Oldham Trial Attorneys U.S. Department of Justice Federal Programs Branch, Civil Division 20 Massachusetts Avenue, N.W., P.O. Box 883 Washington, D.C. 20044
Attorneys for defendant United States of America
AIKEN, Judge:
Plaintiffs' Amended Complaint requests declaratory relief
that the Foreign Intelligence Surveillance Act ("FISA"), as
amended by the Patriot Act, is unconstitutional.
PROCEDURAL BACKGROUND
Plaintiffs filed this case on October 4, 2004, alleging
various civil rights violations. Specifically, plaintiffs
alleged a Bivens1 claim for unlawful arrest and imprisonment and
unlawful searches and seizures against four individual
defendants. See Complaint, Claims 1-10, ¶¶ 1-74.
Plaintiffs also brought a claim under the Privacy Act, 5
U.S.C. § 552a, alleging the defendants began "leaking"
information contained within the Department of Justice ("DOJ")
1 Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Page 2 - OPINION AND ORDER

and the Federal Bureau of Investigation ("FBI") files to the national and international media regarding plaintiff Brandon Mayfield ("Mayfield") and his arrest. Id., Claim 11, ¶¶ 75-86.
Plaintiffs moved for injunctive and declaratory relief against defendants DOJ and the FBI FISA searches and surveillance. See Pub. L. No. 95-511, 92 Stat. 1790 (Oct. 25, 1978), 50 U.S.C. ¶¶ 1801-1811. Id., Claim 12, ¶¶ 87-90. Claim Twelve included plaintiffs' challenge to the constitutionality of portions of the "Patriot Act" (The United and Strengthening of America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (Oct. 26, 2001)). Id., ¶ 89. Finally, plaintiffs brought a claim for the return of property improperly seized. Id., Claim 13, ¶¶ 91-93.
Subsequently, motions were filed by both parties. The court heard oral argument on motions, and on July 28, 2005, issued an opinion, Mayfield et al. v. Gonzales et al., 2005 WL 1801679 (D. Or. 2005)(doc. 83), ruling, in part, as follows: (1) defendant John T. Massey's motion to dismiss based on qualified immunity, or lack of personal jurisdiction, or in the alternative for summary judgment was denied; (2) defendants Werder's, Green's and Wieners' motion to dismiss or alternative motion for summary judgment based on qualified immunity, lack of personal jurisdiction, failure to state a claim or alternatively, for
Page 3 - OPINION AND ORDER

summary judgment was denied; and (3) defendants DOJ's and FBI's motion to dismiss counts twelve and thirteen of the Complaint was denied.
On September 23, 2005, defendants filed an interlocutory appeal of this court's ruling with the Ninth Circuit Court of Appeals. However, on December 7, 2006, the Court of Appeals granted appellants' motion under Federal Rule of Appellate Procedure 42(b) for voluntary dismissal of their appeal. In November 2006, the parties informed this court they had reached a stipulated settlement regarding all issues except the one currently before this court. The court signed the stipulated settlement agreement on November 29, 2006.2
On December 6, 2006, plaintiffs filed an Amended Complaint for Declaratory Judgment. Pending before this court are the parties' cross-motions for summary judgment and defendant's motion to dismiss based on jurisdiction. The court held oral argument on September 10, 2007. The parties provided the court with written briefs, including supplemental briefs, in addition
2 The Settlement Agreement signed by this court limits plaintiffs' remaining claim to a facial (rather than as-applied) challenge to 50 U.S.C. §§ 1804 and 1823. Plaintiffs' claim is to be litigated based on the Amended Complaint, the parties' Recitation of Stipulated Facts, and memoranda of law. Moreover, the relief available to plaintiffs if they prevail is a declaratory judgment that one or both of these two provisions violates the Fourth Amendment. See Stipulation for Compromise Settlement and Release ("Settlement Agreement"), attached as Def's Ex. 1. Page 4 - OPINION AND ORDER

to comprehensive oral argument. Following careful consideration of all the arguments, plaintiffs' summary judgment motion is granted, and defendant's summary judgment motion and motion to dismiss are denied.
FACTUAL BACKGROUND3 In brief, the facts as alleged by plaintiffs are as follows: On March 11, 2004, in Madrid, Spain, terrorists' bombs exploded on commuter trains, murdering 191 persons, and injuring another 1600 persons, including three United States citizens. Shortly after the bombings, the Spanish National Police ("SNP") recovered fingerprints from a plastic bag containing explosive detonators. The bag was found in a Renault van located near the bombing site. On March 13, 2004, the SNP submitted digital photographs of the latent fingerprints lifted from the plastic bag to Interpol Madrid, which then transmitted the digital photographs to the FBI in Quantico, Virginia. On that same day, the Latent Print Unit of the FBI initiated an Automated Fingerprint Identification System ("AFIS") search in an attempt to match the latent prints received from Spain with known prints in the FBI computer system. The FBI was unable to locate a fingerprint match. On March 14, 2004, the FBI requested and received from Spain higher resolution digital photographs of the eight latent prints
3 These facts are restated as set forth in the Opinion published by this court on July 28, 2005, cited above. Page 5 - OPINION AND ORDER

and on March 15, 2004, another AFIS search was performed. The FBI technicians programmed the computer to return 20 candidates whose known prints had features in common with what was identified as Latent Finger Print #17 ("LFP #17"). On March 15, 2004, the computer produced 20 candidates that met the criteria. Each candidate was identified by an AFIS "score," a number that reflected a rank as to how closely the AFIS computer determined each candidate's fingerprint matched certain features of LFP #17. Also included was an identification number for each candidate that allowed the FBI to retrieve the names, original fingerprint cards, and demographic information of each candidate on the list. Demographic information included name, date of birth, sex, race, and social security number. This information allowed the FBI to perform background checks on each of the 20 candidates.
Mayfield's AFIS "score" ranked #4 on the list of 20 candidates. Mayfield is an American citizen born in Oregon and reared in Kansas. He lives with his wife and three children in Aloha, Oregon, a suburb of Portland. Mayfield is 38 years old, a former Army officer with an honorable discharge, and a practicing Oregon lawyer. Prior to his arrest, he had not traveled outside the United States since 1994, and he had never been arrested for a crime. Plaintiffs allege that FBI examiners were aware of Mayfield's Muslim faith and that this knowledge influenced their examination of Mayfield's fingerprints.
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On March 17, 2004, a "Supervisory Fingerprint Specialist" for the FBI, Agent Green, concluded that Mayfield's left index fingerprint matched LFP #17. Plaintiffs allege that had Green properly performed the fingerprint identification analysis, he would have been compelled to declare that Mayfield's print did not, in fact, match LFP #17. Plaintiffs allege that Green, however, was improperly influenced by Mayfield's adherence to the Muslim faith.
Green then submitted the print to Massey, an allegedly "independent fingerprint examiner," for verification. Massey is a former FBI employee, now retired, periodically hired by the FBI on a contract basis to "perform forensic examination of latent fingerprints." Plaintiffs allege that when Massey was employed by the FBI, he was reprimanded on at least three occasions for erroneously "identifying" fingerprints. Plaintiffs contend that Massey was selected to "verify" the identification because his "employment history of discipline for poor performance would strongly motivate him to agree and verify the prior identification." Plaintiffs believe that Massey was informed of Green's prior identification of LFP #17 to Mayfield, and that Mayfield was a practicing Muslim. Massey did, in fact, verify that Mayfield's left index fingerprint matched LFP #17.
The alleged "match" was then submitted to a senior FBI manager, Wieners, for verification. It is FBI policy that when
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there are less than 12 points of similarity between a latent print and a known print, a senior manager must review the alleged match. Plaintiffs allege that Wieners knew, prior to examining the print, that two examiners before him had identified and verified the purported match, and that Mayfield is Muslim. Wieners also verified that LFP #17 matched Mayfield's print.
On March 20, 2004, the FBI issued a formal report matching Mayfield's print to LFP #17. On March 21, 2004, FBI surveillance agents began to watch Mayfield and to follow Mayfield and members of his family when they traveled to and from the Bilal Mosque, the family's place of worship; to and from Mayfield's law office, his place of employment; to and from the children's school; and to and from family activities.
Plaintiffs allege that at some point after the wrongful fingerprint identification, the FBI applied to the Foreign Intelligence Security Court ("FISC") for an order authorizing the FBI to place electronic listening devices ("bugs") in the "shared and intimate" rooms of the Mayfield family home; executed repeated "sneak and peek" searches of the Mayfield family home, occurring when the family was away from the home and performed "so incompetently that the FBI left traces of their searches behind, causing the Mayfield family to be frightened and believe that they had been burglarized;" obtained private and protected information about the Mayfields from third parties; executed
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"sneak and peek" searches of the law office of Brandon Mayfield; and placed wiretaps on Mayfield's office and home phones. The application for the FISA order before the FISC was personally approved by the U.S. Attorney General at the time, John Ashcroft.
On April 2, 2004, Mayfield's prints were sent by the FBI to Spain. Plaintiffs allege that by that date, the U.S. Government had already been advised by the Spanish Government that Moroccan immigrants were suspects in the Madrid bombing and had been taken into custody, and that the Spanish Government was not aware of any information connecting the Moroccans with Mayfield or anyone else in the United States.
The SNP examined the FBI's report and Mayfield's fingerprints, and concluded that there were dissimilarities in the comparison of the two prints for which there was no explanation. On April 13, 2004, the SNP provided a written report to the FBI explaining that they had compared LFP #17 to Mayfield's fingerprints, and concluded there was no match.
On April 21, 2004, the FBI sent one or more agents to Madrid to meet with their Spanish counterparts. Spanish authorities who met with the FBI agents "refused to validate" the FBI's conclusion that LFP #17 and Mayfield's print were a match.
Plaintiffs allege that DOJ and FBI employees "concocted false and misleading affidavits" in order to justify even more intrusive searches and ultimately to justify Mayfield's arrest as
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a "material witness." An FBI investigator, Werder, submitted a "concocted affidavit" to a federal judge of this court, which stated that Green, Wieners, and Massey considered LFP #17 a "100% positive identification" of Mayfield. Although the affidavits stated that "preliminary findings" of the SNP "were not consistent" with the FBI fingerprint analysis, no mention was made of Spain's April 13, 2004, report to the FBI that stated the SNP did not agree with the FBI's fingerprint match of LFP #17 and Mayfield.
The affidavit included "speculative and prejudicial narratives" focusing on Mayfield's religion and association with co-practitioners. Plaintiffs cite as an example, Werders's inclusion in his affidavit the fact that Mayfield attended a mosque and advertised his legal services in "Jerusalem Enterprises," or what are known as the "Muslim Yellow Pages," as evidence connecting Mayfield to the bombings as a material witness. Plaintiffs respond that the "Muslim Yellow Pages" also includes advertising by major companies such as Avis, Best Western and United Airlines. Plaintiffs allege that the affidavit submitted to this court was knowingly or recklessly false and misleading.
Due to Mayfield's protestations of innocence, and the issue of whether Mayfield's prints actually matched LFP #17, the Judge assigned to this matter ordered that LFP #17 be provided to a
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court-appointed expert witness for comparison to Mayfield's known fingerprints. That expert, Kenneth Moses, was selected by Mayfield and his defense attorneys. On May 19, 2004, Moses testified in the material witness proceeding that he had "compared the latent prints that were submitted on Brandon Mayfield, and [he] concluded that the latent print is the left index finger of Mr. Mayfield."
Based on these affidavits, broad search warrants were sought and issued. Mayfield's family home and law office were searched. Computer and paper files from his family home, including his children's homework, were seized. Mayfield was ultimately arrested and initially held in the lock down unit at the Multnomah County Detention Center. His family was not told where he was being held. He and his family were told, however, that he was being held as a primary suspect on offenses punishable by death, and that the FBI had made a 100% match of his fingerprint with the Madrid train bombing fingerprint. Plaintiffs allege that leaks to the media by the FBI and DOJ led to local, national, and international headlines that Brandon Mayfield's fingerprints linked him to the Madrid bombings.
Mayfield was ultimately arrested and imprisoned from May 6, 2004, through May 20, 2004. On May 19, 2004, the SNP advised the FBI, and on May 20, 2004, news reports revealed, that Spain had matched the Madrid fingerprint with an Algerian, Ouhane Daoud.
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Mayfield was released from prison the following day.4

STANDARDS

Motion to Dismiss

Under Fed. R. Civ. P. 12(b)(6), once a claim has been stated

adequately, it may be supported by "showing any set of facts

consistent with the allegations in the complaint." Bell Atlantic

Corp. v. Twombly,

U.S. , 127 S.Ct. 1955, 1960 (2007). See

also, Litchfield v. Spielberg, 736 F.2d 1352, 1357 (9th Cir.

1984), cert. denied, 470 U.S. 1052 (1985). For the purpose of

the motion to dismiss, the complaint is liberally construed in

favor of the plaintiffs, and its allegations are taken as true.

Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir. 1983).

Motion for Summary Judgment

Summary judgment is appropriate "if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law." Fed. R. Civ. P.

56(c). Substantive law on an issue determines the materiality of

a fact. T.W. Electrical Service, Inc. v. Pacific Electrical

Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987). Whether

the evidence is such that a reasonable jury could return a

4 However, Mayfield was then held on home detention from May 21 through May 24, 2004.
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verdict for the nonmoving party determines the authenticity of a dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324.
Special rules of construction apply when evaluating summary judgment motions: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Electrical, 809 F.2d at 630.
DISCUSSION Plaintiffs' Amended Complaint challenges the lawfulness of the physical searches, electronic eavesdropping and wiretapping performed pursuant to authorization from the FISC Court in Washington D.C., and the lawfulness of the government's continued retention of materials derived from those searches, eavesdropping, and wiretapping. Plaintiffs allege that 50 U.S.C. § 1804 (electronic surveillance under FISA) and 50 U.S.C. § 1823
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(physical searches under FISA) violate the Fourth Amendment5 on their face. Specifically, plaintiffs allege that pursuant to FISA and in violation of the Fourth Amendment, they were subjected to secret surveillance and searches of their home, law office, vehicles, and communications.
Plaintiffs allege their private information gathered pursuant to those searches has been disseminated to at least eight agencies of the federal government, including the Central Intelligence Agency, the National Security Council, the Department of Defense, the Department of Homeland Security, the DOJ, the FBI, the Department of the Treasury, and the National Security Agency.
Plaintiffs challenge the Patriot Act amendments to FISA that allow federal agents to circumvent Fourth Amendment probable cause requirements when investigating persons suspected of crimes. Amended Complaint, ¶¶ 23-24. Plaintiffs seek a declaratory judgment that 50 U.S.C. §§ 1804 and 1823, as amended by the Patriot Act, violate the Fourth Amendment of the United States Constitution. Id. ¶ 25. Finally, plaintiffs seek their costs and disbursements necessarily incurred in this lawsuit.
5 The Fourth Amendment states: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. Amend. IV. Page 14 - OPINION AND ORDER

Id. Background on FISA and the Patriot Act FISA was enacted in 1978 to "provide a procedure under which
the Attorney General can obtain a judicial warrant authorizing the use of electronic surveillance in the United States for foreign intelligence purposes." S. Rep. No. 95-604, 95th Cong. 2d Sess. 5, reprinted at 1978 U.S.C.C.A.N. 3906. In 1994, FISA was amended to permit applications for orders authorizing physical searches as well as electronic surveillance. 50 U.S.C. §§ 1821-1829.
FISA established two special courts: the FISC, which is comprised of eleven district court judges appointed by the Chief Justice of the United States Supreme Court, and the FISC of Review, which is comprised of three district court or court of appeals judges also appointed by the Chief Justice. 50 U.S.C. § 1803(a),(b). The FISC has jurisdiction to grant or deny applications for orders authorizing electronic surveillance and physical searches under the procedures specified in FISA, and the FISC of Review has jurisdiction to review the denial of any application made under FISA. 50 U.S.C. § 1822(b)-(d).
FISA also allows the Attorney General to authorize the execution of an emergency search or surveillance so long as it is approved by the FISC within 72 hours. 50 U.S.C. § 1824(e)(1)(A). Applications for court orders authorizing searches or
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surveillance under FISA are made to the FISC under oath by a federal officer with the approval of the Attorney General. 50 U.S.C. §§ 1801(g), 1804, 1823. The application must identify or describe the target of the search or surveillance, and establish that the target is either a "foreign power" or an "agent of a foreign power." 50 U.S.C. §§ 1804(a)(3), 1804(a)(4)(A), 1823(a)(3), 1823(a)(4)(A). FISA defines "foreign power" to include a "group engaged in international terrorism." 50 U.S.C. §§ 1801(a)(1),(4). The definition of an "agent of a foreign power" includes any person who "knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power[,]" or any person who "knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power." 50 U.S.C. §§ 1801(b)(2)(A),(c). Where a "United States person" - a citizen or a permanent resident alien - is involved, the definition of an "agent of a foreign power" requires, in most instances, a showing of criminal activity. 50 U.S.C. §§ 1801(b)(2), (I).
In October 2001, Congress amended FISA to change the language found in § 1804(a)(7)(B) from "the purpose" of the search or surveillance is to obtain foreign intelligence information to "a significant purpose" of the search or surveillance is to obtain foreign intelligence information. Congress's intent in amending § 1804(a)(7)(B) was to break down
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barriers between criminal law enforcement and intelligence gathering. "Federal officers who conduct electronic surveillance to acquire foreign intelligence information may consult with Federal law enforcement officers . . . to coordinate efforts to investigate or protect against" attack or other grave hostile acts, sabotage or international terrorism, or clandestine intelligence activities by foreign powers or by an agent of a foreign power. 50 U.S.C. § 1806(k)(1)(A)-(C). The Act further provides that coordination "shall not preclude" the government's certification that a significant purpose of the surveillance is to obtain foreign intelligence information, or the issuance of an order authorizing the surveillance. Id. § 1806(k)(2).
Each FISA application must include a certification from a high-ranking Executive Branch official, such as the Director of the FBI, that the official "deems the information sought [by the search or surveillance] to be foreign intelligence information," and that "a significant purpose" of the search or surveillance is to obtain "foreign intelligence information." 50 U.S.C. §§ 1804(a)(7)(A)-(B), 1823(a)(7)(A)-(B). FISA defines "foreign intelligence information" to include information that "relates to, and if concerning a United States person is necessary to" protect the United States from espionage and international terrorism, an actual or potential attack, or the national defense or security of the United States generally. 50 U.S.C. §§
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1801(e)(1),(2).
An individual judge of the FISC reviews each FISA
application following its submission. 50 U.S.C. §§ 1805, 1824.
To approve an application, the judge must find that it
establishes "probable cause" to believe that the target of the
search or surveillance is a foreign power or an agent of a
foreign power. Where the target of the search or surveillance is
a U.S. citizen the judge must also find that the Executive
Branch's certification that a significant purpose of the search
or surveillance is to obtain foreign intelligence information is
not "clearly erroneous." 50 U.S.C. §§ 1805(a)(5), 1824(a)(5); H.R. Rep. No. 95-1283, Part I, 95th Cong. 2d Sess. (1978), at 80-
81.
Plaintiffs' Allegations
Plaintiffs request a declaration from this court that FISA,
as amended by the Patriot Act, violates the Fourth Amendment
because it:
a. permit[s] the federal government to perform covert physical searches and electronic surveillance and wiretaps of the home, office and vehicles of a person without first requiring the government to demonstrate to a court the existence of probable cause that the person has committed a crime;
b. permit[s] the federal government to perform covert physical searches and electronic surveillance and wiretaps of a person without first requiring the government to demonstrate to a court that the primary purpose of the searches and surveillance is to obtain foreign intelligence information; and
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c. permit[s] the federal government to covertly collect, disseminate and retain information collected through covert physical searches and electronic surveillance without first requiring the government to demonstrate to a court the existence of probable cause that the person who is the target of physical searches and electronic surveillance has committed a crime, or, alternatively, that the primary purpose of the searches and surveillance [is] to obtain foreign intelligence information.
Id. at ¶ 25 a-c.
Prior to the Patriot Act, the government was required to
certify that the primary purpose of its surveillance was to
obtain foreign intelligence information. The Patriot Act now
authorizes FISA surveillance and searches as long as a
significant purpose of the surveillance and searches is the
gathering of foreign intelligence. 50 U.S.C. §§ 1804(a)(7)(B)
and 1823(a)(7)(B). This amendment allows the government to
obtain surveillance orders under FISA even if the government's
primary purpose is to gather evidence of domestic criminal
activity. See In re All Matters Submitted To The Foreign
Intelligence Surveillance Court ("In re FISC"), 218 F.Supp.2d
611, 615 n.2 (FISC 2002). The practical result of this
amendment, objected to by plaintiffs, is that in criminal
investigations, the government can now avoid the Fourth
Amendment's probable cause requirement when conducting
surveillance or searches of a criminal suspect's home or office
merely by asserting a desire to also gather foreign intelligence
information from the person whom the government intends to
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criminally prosecute. The government is now authorized to conduct physical searches and electronic surveillance upon criminal suspects without first proving to an objective and neutral magistrate that probable cause exists to believe that a crime has been committed. The government need only represent that the targeted individual was an agent of a foreign power (a representation that must be accepted unless "clearly erroneous") and that "a significant purpose" of the surveillance and search is to collect foreign intelligence.
Here, the government chose to go to the FISC, despite the following evidence: Mayfield did not have a current passport; he had not been out of the country since completing his military duty as a U.S. Army lieutenant in Germany during the early 1990s; the fingerprint identification had been determined to be "negative" by the SNP; the SNP believed the bombings were conducted by persons from northern Africa; and there was no evidence linking Mayfield with Spain or North Africa. The government nevertheless made the requisite showing to the FISC that Mayfield was an "agent of a foreign power." That representation, which by law the FISC could not ignore unless clearly erroneous, provided the government with sufficient justification to compel the FISC to authorize covert searches and electronic surveillance in support of a criminal investigation. (1) Defendant's Motion to Dismiss Plaintiffs' Amended Complaint
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A. STANDING The defendant argues that this court lacks jurisdiction over plaintiffs' facial constitutional challenge because plaintiffs lack standing to seek declaratory relief against 50 U.S.C. §§ 1804 and 1823. "Article III of the Constitution confines the federal courts to adjudicating actual 'cases' and 'controversies.'" Allen v. Wright, 468 U.S. 737, 750 (1984). To show standing, plaintiffs must satisfy three elements: (1) an injury-in-fact which is concrete and particularized, and actual or imminent; (2) a casual connection between the injury and the government's conduct; and (3) it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)(internal quotation marks and citations omitted). The defendant asserts that plaintiffs must show the FISA provisions are causing them an ongoing injury-in-fact or are likely to injure them in the future. Plaintiffs allege they "fear future uses of FISA, as amended by the Patriot Act." Amended Complaint, ¶ 25. Second, plaintiffs allege they "fear the future uses of the derivative materials in government files." Id. Finally, plaintiffs allege the government's mere possession of derivative FISA materials injures them. Id. Specifically, plaintiffs allege that prior to the
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commencement of this lawsuit, Mayfield, through his courtappointed public defenders, demanded that then Attorney General John Ashcroft detail the FISA searches and surveillance performed and purge all government files of the information collected. Ashcroft refused to do so, and plaintiffs allege that several federal agencies continue to retain information collected during the allegedly illegal and unconstitutional searches and surveillance. Amended Complaint, ¶ 25.
It is uncontested that plaintiffs have settled all claims for any past injuries, and as a matter of law past injuries do not support standing to seek prospective relief such as a declaratory judgment of facial unconstitutionality. In addition, the defendant asserts that plaintiffs cannot show that their alleged fear of future use of derivative FISA materials would be redressed by the only relief they can obtain - a declaratory judgment that 50 U.S.C. §§ 1804 and 1823 violate the Fourth Amendment on their face. The government contends that such a declaratory judgment would protect plaintiffs against future searches or surveillance targeting them under a struck-down provision, but it would not prohibit any and all use of materials already in the government's possession.
The court disagrees. Plaintiffs' claims allege an on-going 'case' or 'controversy' providing this court with jurisdiction to adjudicate plaintiffs' claims pursuant to Article III.
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Specifically, plaintiffs establish standing with an on-going actual injury-in-fact which is concrete and particularized; that is, the government's continued retention of derivative FISA materials collected by covert surveillance and searches from Mayfield, his wife, and their children. "Derivative FISA materials" are defined as follows: "[A]ny materials, in whatever form or place, derived directly or indirectly from or related to the FISA take as defined herein[.]" Settlement Agreement, Def's Ex. 1. The government provides that derivative materials may include photocopies or photographs of documents from confidential client files in Mayfield's law office, summaries and excerpts from the computer hard drives from the Mayfield law office and plaintiffs' personal computers at home, analysis of plaintiffs' personal bank records and bank records from Mayfield's law office, analysis of client lists, websites visited, family financial activity, summaries of confidential conversations between husband and wife, parents and children, and other private activities of a family's life within their home. These materials, in a derivative form, have been distributed to various government agencies. The continued retention by government agencies of this material constitutes a real and continuing injury-in-fact to plaintiffs.6
6 The court received the government's late filing titled, "Notice of Supplemental Information." The court appreciates the distinction between plaintiffs' pending FOIA requests (the Page 23 - OPINION AND ORDER

Moreover, the cases relied upon by the government to support its contention that plaintiffs lack standing are distinguishable. These cases focus on claims that a past injury might occur again. Plaintiffs do not rely on their past injury. Rather they continue to suffer a present, on-going injury due to the government's continued retention of derivative material from the FISA seizure.
The government next asserts that a declaratory judgment will fail to effectively "cure" any injury alleged by plaintiffs. If plaintiffs prevail on their Amended Complaint, and the court enters a declaratory judgment finding the challenged portions of the Patriot Act unconstitutional, it is reasonable to assume that the Executive Branch of the government will act lawfully and make all reasonable efforts to destroy the derivative materials when a final declaration of the unconstitutionality of the challenged provisions is issued. This is sufficient to confer standing in this case. See, e.g., Larson v. Valente, 456 U.S. 228, 243 n.15 (1982)("plaintiff satisfies the redressability requirement when he shows that a favorable decision will relieve a discrete injury to himself. He need not show that a favorable decision will relieve his every injury.")(emphasis in original).
B. RIPENESS Next, the defendant argues that plaintiffs cannot establish
"14,754 pages) and the remaining derivative FISA materials. Page 24 - OPINION AND ORDER

that their claim is ripe. Ripeness is designed to "'prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract agreements.' [The Court's] role is neither to issue advisory opinions nor to declare rights in hypothetical cases." Thomas v. Anchorage Equal Rights Comms., 220 F.3d 1134, 1138 (9th Cir. 2000)(en banc)(quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967)). To satisfy "this jurisdictional prerequisite," the court must determine whether "plaintiffs face 'a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement.'" Id. (quoting Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979)).
The defendant contends that plaintiffs' failure to establish a sufficient likelihood of future injury also renders their claim for declaratory relief unripe. The government argues it would be "purely hypothetical and speculative to imagine that plaintiffs ever would be targeted for future searches or surveillance under the challenged provisions or that plaintiffs would ever be harmed by any future use of derivative FISA materials." Defendant's Memo, p. 3.
It is notable that, "in many cases, ripeness coincides squarely with standing's injury in fact prong." Thomas, 220 F.3d at 1138. In fact, when "measuring whether the litigant has asserted an injury that is real and concrete rather than
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speculative and hypothetical, the ripeness inquiry merges almost completely with standing." Id. at 1139 (internal quotation omitted). Here, we have neither a hypothetical case nor an abstract agreement. As discussed above, a declaratory judgment striking the challenged sections of FISA will require the Executive Branch to destroy or otherwise eliminate the derivative materials currently maintained in government files. I find plaintiffs have established an injury-in-fact, an injury that is continuing and redressable. Thus, plaintiffs' injury is neither hypothetical nor speculative, and therefore, this claim is ripe for determination by this court.
In conclusion, defendant's motion to dismiss plaintiffs' Amended Complaint based on this court lacking jurisdiction is denied. (2) Parties' Cross-Motions for Summary Judgment
A. Standard for Facial Challenge to a Statute The defendant relies on United States v. Salerno, 481 U.S. 739, 745 (1987), to argue that a successful facial challenge to a statute "must establish that no set of circumstances exists under which the Act would be valid." First, this standard is more flexible than defendant represents, and second, plaintiffs adequately allege a facial challenge to the statute regardless of the standard applied. For example in Planned Parenthood v. Casey, the Court held
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that a statute restricting access to abortion could be facially challenged if it presented an "undue burden" upon a constitutional right. 505 U.S. 833, 876-77 (1992). Notably, after the Court decided Casey, Justice Stevens stated that he did "not believe the Court has ever actually applied such a strict standard [as the Salerno standard], even in Salerno itself." Washington v. Glucksberg, 521 U.S. 702, 739-40 (1997)(Steven, J., concurring in judgment). Additionally, in 1999, in a facial challenge to a gang loitering ordinance, Justices Stevens, Souter and Ginsberg labeled the Salerno standard "dictum" and stated that "[t]o the extent we have consistently articulated a clear standard for facial challenges, it is not the Salerno formulation, which has never been the decisive factor in any decision of this Court, including Salerno itself." City of Chicago v. Morales, 527 U.S. 41, 55 n.22 (1999).
The Ninth Circuit, sitting en banc, determined the Casey standard to be the appropriate standard for a facial challenge to the Washington Natural Death Act. Compassion in Dying v. State of Washington, 79 F.3d 790, 798 n.9 (9th Cir. 1995)("[S]ince the claimed liberty issue in this case is in many respects similar to the liberty issue involved in Casey, . . . we believe that the Salerno test would not in any event be the appropriate one for adjudicating a facial challenge to Washington's prohibition on assisted suicide."), rev'd on other grounds, Washington v.
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Glucksberg, 521 U.S. 702 (1997). See also Planned Parenthood of Southern Arizona v. Lawall, 180 F.3d 1022 (9th Cir. 1999)(application of Casey standard in abortion challenge). Subsequently, the Ninth Circuit held that while "Casey 'overruled Salerno in the context of facial challenge to abortion statutes,' . . . [it would] not reject Salerno in other contexts until a majority of the Supreme Court clearly directs us to do so." S.D. Myers, Inc. v. City and County of San Francisco, 253 F.3d 461, 467 (9th Cir. 2001).
Because the standard for reviewing a facial challenge to a statute involving the violation of a fundamental civil liberty is in flux, the court will consider whether plaintiffs' facial challenge satisfies either standard. Under Casey, plaintiffs must allege that the challenged sections of FISA, as amended by the Patriot Act, place an "undue burden" on the fundamental rights secured by the Fourth Amendment. Under the Salerno standard, plaintiffs must show that no set of circumstances can make constitutional the challenged sections of FISA, as amended by the Patriot Act. Plaintiffs satisfy either standard.
B. Constitutionality of FISA, as amended by the Patriot Act At issue here are two fundamental concerns: the safety of our nation and the constitutional rights of citizens. With the passage of the Patriot Act, these concerns are now placed in conflict. The court recognizes that a difficult balance must be
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struck in a manner that preserves the peace and security of our nation while at the same time preserving the constitutional rights and civil liberties of all Americans.7
Prior to passage of the Patriot Act, the government would have been required to follow the traditional process and demonstrate probable cause to a "detached and neutral magistrate" that Mayfield had committed a crime. Therefore, prior to issuing a search warrant, the Fourth Amendment required that law enforcement have reasonable grounds to believe that the law was being violated. FISA does not contain this criminal standard of probable cause. Instead, FISA contains a "foreign intelligence standard" of probable cause which requires a showing that the target may be an agent of a foreign government and the place or facility to be searched is being used in furtherance of espionage or terrorist activities.
Significantly, a seemingly minor change in wording has a dramatic and significant impact on the application of FISA. A warrant under FISA now issues if "a significant purpose" of the surveillance is foreign intelligence. Now, for the first time in our Nation's history, the government can conduct surveillance to gather evidence for use in a criminal case without a traditional warrant, as long as it presents a non-reviewable
7 See Doe v. Gonzalez et al., CV 04-2614 (S.D.N.Y. Sept. 6, 2007)(sections of the Patriot Act, as amended, authorizing the issuance of "national security letters" held unconstitutional). Page 29 - OPINION AND ORDER

assertion that it also has a significant interest in the targeted person for foreign intelligence purposes.
Since the adoption of the Bill of Rights in 1791, the government has been prohibited from gathering evidence for use in a prosecution against an American citizen in a courtroom unless the government could prove the existence of probable cause that a crime has been committed. The hard won legislative compromise previously embodied in FISA reduced the probable cause requirement only for national security intelligence gathering. The Patriot Act effectively eliminates that compromise by allowing the Executive Branch to bypass the Fourth Amendment in gathering evidence for a criminal prosecution.
In 1967, the Supreme Court held that a New York statute authorizing electronic surveillance violated the Fourth Amendment because: (1) "it did not requir[e] the belief that any particular offense has been or is being committed; nor that the 'property' sought, the conversations, be particularly described;" (2) it failed to limit the duration of the surveillance to impose sufficiently stringent requirements on renewals of the authorization; and (3) the statute "has no requirement for notice as do conventional warrants, nor does it overcome this defect by requiring some showing of special facts." Berger v. New York, 388 U.S. 41, 58-60 (1967).
The Court specifically rejected the state's argument that
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Fourth Amendment requirements should be relaxed because the
surveillance statute was essential in its fight against organized
crime. The Court held:
[W]e cannot forgive the requirements of the Fourth Amendment in the name of law enforcement. This is no formality that we require today but a fundamental rule that has long been recognized as basic to the privacy of every home in America. While the requirements of the Fourth Amendment are not inflexible, or obtusely unyielding to the legitimate needs of law enforcement, it is not asking too much that officers be required to comply with the basic command of the Fourth Amendment before the innermost secrets of one's home or office are invaded. Few threats to liberty exist which are greater than that posed by the use of eavesdropping devices.
Id. at 62-63 (internal quotation and citation omitted).
Subsequently, the Supreme Court in Katz v. United States,
389 U.S. 347 (1967), held that the Fourth Amendment's probable
cause and warrant requirements apply to electronic surveillance.
In a footnote, however, the majority opinion expressly deferred
deciding whether the Fourth Amendment requires prior judicial
authorization of surveillance in cases involving national
security. Id. at 358 n.23. Four years later, the Supreme Court
revisited the issue in United States v. United States District
Court, 407 U.S. 297 (1972)(Keith). That case arose from the
prosecution of three citizens who were allegedly conspiring to
bomb a CIA office in Ann Arbor, Michigan. Id. at 299. While the
Supreme Court recognized both the Executive Branch's interest in
protecting national security and the value of electronic
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surveillance in detecting security threats, the Court nonetheless
noted:
There is understandably, a deep-seated uneasiness and apprehension that this [surveillance] capability will be used to intrude upon cherished privacy of law-abiding citizens. We look to the Bill of Rights to safeguard this privacy. Though physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed, its broader spirit now shields private speech from unreasonable surveillance.
Id. at 312-13(footnote omitted).
Ultimately, the Court rejected the Executive Branch's
arguments that "internal security matters are too subtle and
complex for judicial evaluation" and that "prior judicial
approval will fracture the secrecy essential to official
intelligence gathering." Id. at 320. Significantly, the Supreme
Court expressly rejected the Executive Branch's argument that
exceptions to the Fourth Amendment warrant requirement should be
recognized for domestic security surveillance and held that the
decision to conduct electronic surveillance cannot be left to the
discretion of law enforcement officials:
These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillance may be conducted solely within the discretion of the Executive Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute. But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed
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executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech. Id. 316-17 (internal citation and footnote omitted). Finally, the Supreme Court noted the differences between surveillance for criminal investigative purposes and surveillance for intelligence purposes. The Court noted the "potential distinctions between Title III criminal surveillance and those involving domestic security," and suggested that Congress "may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes in Title III." Id. at 322. After the Supreme Court's decision in Keith, and prior to the enactment of FISA, numerous federal appellate courts recognized our Nation's interest in security and affirmed warrantless surveillance authorized within the Executive Branch, because the purpose of the surveillance was foreign intelligence gathering. See, e.g., United States v. Brown, 484 F.2d 418, 426 (5th Cir. 1973); United States v. Butenko, 494 F.2d 593 (3d Cir. 1974); United States v. Buck, 658 F.2d 871 (9th Cir. 1977). The Third, Fifth and Ninth Circuits all held that warrantless surveillance could be conducted by the Executive Branch only if the purpose of this surveillance was to gather foreign intelligence. Brown, 484 F.2d at 426; Butenko, 494 F.2d at 593; and Buck, 658 F.2d at 871. It was against this backdrop, in
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1978, that Congress passed FISA, permitting the government to obtain an electronic surveillance order based upon probable cause that the prospective target was a "foreign power" or an "agent of a foreign power." Pub. L. No. 95-511, § 101, 92 Stat. 1783 (1978).
The decisions in Katz and Keith drew a line between surveillance conducted by law enforcement officials to investigate crime - which requires a traditional warrant based on probable cause - and surveillance conducted by intelligence officials to obtain foreign intelligence information. Notably, the primary purpose of the electronic surveillance and physical searching of Mayfield's home was to gather evidence to prosecute him for crimes. Mayfield was ultimately arrested to compel his testimony before a Grand Jury investigating his alleged involvement in the crimes of bombing places of public use, providing national support to terrorists and conspiracy to kill, kidnap, maim or injure persons or damage property in a foreign county. In Re: Federal Grand Jury 03-01 Matter of Material Witness, No. 04-MC-9071 (D. Or. 2004). The government stipulated that it did not demonstrate to the FISC that its primary purpose in wiretapping, electronically eavesdropping, or physically searching Mayfield's home or law office was to gather foreign intelligence. "In the FISA applications, the government did not seek to establish, and under the terms of FISA was not required
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to establish, all of the requirements set forth in 18 U.S.C. § 2510 et seq. and Rule 41, Fed. R. Crim. P." Recitation of Stipulated Facts ("Stip."), ¶ a. Thus, FISA now permits the Executive Branch to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment.8 As plaintiffs allege, when proceeding pursuant to FISA, "there is no [need for] showing or finding that a crime has been or is being committed, as in the case of a search or seizure for law enforcement purposes." Plaintiffs' Memo in Support of Summary Judgment, p. 26. "Additionally, and with respect to the nexus to criminality required by the definitions of an 'agent of a foreign power,' the government need not show probable cause as to each and every element of the crime involved or about to be involved." Id. When the FISC reviews a FISA search application, the government satisfies most FISA requirements simply by certifying that the requirements are met. 50 U.S.C. § 1804(a)(7). The statute directs that the FISC is not to scrutinize such statements, but is to defer to the government's certification unless it is
8 Members of Congress expressed reservations about the constitutionality of the "significant purpose" amendment to FISA in light of the "primary purpose" requirement rooted in the Fourth Amendment. 147 Cong. Rec. S10593 (Oct. 11, 2001)(Sen. Leahy); id. at S10568 (Sen. Specter); id. at S10585 (Sen. Cantwell); id. at S10597 (Sen. Kennedy); id. at E1896 (Oct. 12, 2001)(Rep. Mink); id. at H6760 (Rep. Scott); id. at H6761 (Rep. Lofgren); id. at H6767 (Rep. Conyers); id. at H6772 (Rep. Udall). Page 35 - OPINION AND ORDER

"clearly erroneous." Id. at § 1805(a)(5); § 1824(a). This procedure allows the government to avoid traditional
Fourth Amendment judicial oversight used to obtain a surveillance order. The government must provide the court with "a full and complete statement of the facts and circumstances relied upon by the applicant to justify his belief that an order should be issued." 18 U.S.C. § 2518(1)(b). The court may "require the applicant to furnish additional testimony or documentary evidence in support of the application." Id. at § 2518(2). Finally, as to most substantive requirements, the court must find probable cause to believe they are satisfied. Id. at § 2518(3).
The FISA also allows the government to retain information collected, and use the collected information in criminal prosecutions without providing any meaningful opportunity for the target of the surveillance to challenge its legality. Nor does FISA require notice. The Fourth Amendment ordinarily requires that the subject of a search be notified that the search has occurred. Although in some circumstances the government is permitted to delay the provision of notice, the Supreme Court has never upheld a statute that, like FISA, authorizes the government to search a person's home or intercept his communications without ever informing the person that his or her privacy has been violated. Except for the investigations that result in criminal prosecutions, FISA targets never learn that their homes or
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offices have been searched or that their communications have been intercepted. Therefore, most FISA targets have no way of challenging the legality of the surveillance or obtaining any remedy for violations of their constitutional rights.
FISA also does not require particularity. The Fourth Amendment prohibits the government from conducting intrusive surveillance unless it first obtains a warrant describing with particularity the things to be seized as well as the place to be searched. Berger, 388 U.S. at 58 (Fourth Amendment particularity requirement intended to prevent government's reliance on "general warrants" that allow "seizure of one thing under a warrant describing another"). The Supreme Court has underscored the importance of the particularity requirement:
By its very nature eavesdropping involves an intrusion on privacy that is broad in scope . . . . [T]he indiscriminate use of such devices in law enforcement raises grave constitutional questions under the Fourth and Fifth Amendments, and imposes a heavier responsibility on this Court in its supervision of the fairness of procedures. Id. at 56, 63 (internal quotation marks and citations omitted). Finally, FISA authorizes surveillance terms up to 120-days. 50 U.S.C. § 1805(e)(1)(B). Title III limits the term of surveillance to 30 days. 18 U.S.C. § 2518(5). The Ninth Circuit has held that in the context of criminal investigations, the 30day limitation is constitutionally required. United States v. Koyomejian, 970 F.2d 536, 542 (9th Cir.), cert. denied, 506 U.S.
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1005 (1992). Given Berger and Koyomejian, FISA's provisions relating to the duration of surveillance orders violates the Fourth Amendment requirements for criminal investigations.
The government does not refute plaintiffs' historical recitation of law leading up to the enactment of FISA. Similarly, the parties agree that when surveying the case law prior to In re Sealed Case, 310 F.3d 717 (FISA Ct. of Rev. 2003), every Article III court that had considered the issue directly concluded that to justify non-probable cause searches and electronic surveillance, the government's purpose, or at least its primary purpose, must have been the collection of foreign intelligence. Specifically, as originally drafted and implemented over its 24-year history, FISA applications were properly granted only when "the purpose" of the surveillance was foreign intelligence gathering.
In the history underlying In re Sealed Case, the government sought to conduct surveillance of an "agent of a foreign power." In granting the request, the FISC also addressed the new 2002 FISA Procedures. On May 17, 2002, the seven judges of the FISC issued a rare public and unanimous opinion ruling the Procedures improper. The FISC court held:
[The 2002 Procedures] are designed to enhance the acquisition, retention, and dissemination of evidence for law enforcement purposes, instead of being consistent with the need of the United States to 'obtain, produce, and disseminate foreign intelligence information[.] The 2002 Procedures
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appear to be designed to amend the law and substitute the FISA for Title III electronic surveillances and Rule 41 searches. In re All Matters Submitted To The Foreign Intelligence Surveillance Court, 218 F.Supp.2d 611, 623 (FISC 2002) (In re FISC)(emphasis in original). The government filed the first ever appeal to the FISCR, a court that had never before met. The FISCR reversed the FISC's ruling and held the 2002 Procedures consistent with the Patriot Act, found the 2002 Procedures constitutionally reasonable, and held that they met Fourth Amendment standards. While the court permitted amicus briefs, only the government was allowed to appear and participate at oral argument. Moreover, only the government is allowed under FISA to seek Supreme Court review of a FISCR decision, which it declined to do. Even without the benefit of full adversarial proceedings, the FISCR conceded that "the constitutional question presented by this case - whether Congress' disapproval of the primary purpose test is consistent with the Fourth Amendment - has no definitive jurisprudential answer." In re Sealed Case, 310 F.3d at 743. The government cites In re Sealed Case as "highly persuasive" authority for this court and suggests that the Ninth Circuit would adopt the ruling.9 The government cites both
9 The government recently provided the court with a copy of United States v. Holy Land Found. for Relief and Dev., 2007 WL 2011319 (N.D. Tex. July 11, 2007), in which the court decided a Page 39 - OPINION AND ORDER

United States v. Cavanagh, 807 F.2d 787 (9th Cir. 1987), and United States v. Sarkissian, 841 F.2d 959 (9th Cir. 1988), as evidence that the Ninth Circuit would follow the ruling of In re Sealed Case. Both Ninth Circuit cases were decided prior to the Patriot Act's amendments to FISA. Regardless, I disagree with the government's analysis and find those cases are not persuasive as to whether the Ninth Circuit would adopt the reasoning of In re Sealed Case. For example, in Cavanagh the court held that where "the purpose of the surveillance is to obtain foreign intelligence," FISA passes constitutional muster. Id. at 790-91. In Sarkissian, the Ninth Circuit expressly declined to consider whether the primary purpose test was constitutionally required. 871 F.2d at 964 ("We also decline to decide the issue. We have generally stated that the purpose of the surveillance must be to secure foreign intelligence information.").
In this case, the court declines to adopt the analysis and conclusion reached by the FISCR in In re Sealed Case. Notably, the FISCR's two fundamental premises underlying its ruling are contradictory. FISCR determined both that FISA never contained a
motion to compel production of documents related to the government's applications under FISA and a motion to suppress evidence obtained from that surveillance. The court denied the motions rejecting defendants' Fourth Amendment challenge, and relied on the "thorough analy[sis]" by the FISCR in In re Sealed Case. I find this case simply reiterates the analysis of In re Sealed Case, and therefore does not aid in the resolution of this difficult issue. Page 40 - OPINION AND ORDER

purpose requirement, and that in altering the purpose requirement, Congress did not undermine the validity of searches conducted pursuant to FISA. Regarding FISCR's second premise, FISCR found that the primary purpose test "generates dangerous confusion and creates perverse organizational incentives arising from the purported need to distinguish between intelligence gathering and criminal investigation." Id. at 743. However, a provision of the Patriot Act, unchallenged by plaintiffs here, eliminates the DOJ "wall" and with it the "dangerous confusion" and "perverse organizational incentives" referred to and relied on by the FISCR. Moreover, to the extent the "primary purpose" test imposes any restraint on the sharing of FISA surveillance with criminal investigators, investigators are, of course, free to seek orders authorizing surveillance under Title III, and traditional search warrants that satisfy Fourth Amendment requirements. Finally, Title III includes predicate offenses for which surveillance is justified for virtually all terrorism and espionage-related offenses. 18 U.S.C. § 2516(1). As such, Title III provides a satisfactory alternative when criminal investigators cannot have access to FISA surveillance.
The FISCR also attempts, without merit, to distinguish the Supreme Court's "special needs" cases. In re Sealed Case, 310 F.3d at 745-46 n. 33. "Special needs" cases are those where the Supreme Court has found it appropriate to carve out an exception
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to the Fourth Amendment's requirement of probable cause based upon an individualized suspicion of wrongdoing. In these cases, the Court found that special needs, beyond the normal need of law enforcement, might justify an otherwise unconstitutional search. Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 619 (1989). Prior to the Patriot Act, FISA may have had as its "general programmatic purpose . . . to protect the nation against terrorism and espionage threats directed by foreign powers." In re Sealed Case, 310 F.3d at 46. After the Patriot Act, however, FISA surveillance, including the surveillance at bar, may have as its "programmatic purpose" the generation of evidence for law enforcement purposes - which is forbidden without criminal probable cause and a warrant.
Finally and perhaps most significantly, In re Sealed Case ignores congressional concern with the appropriate balance between intelligence gathering and criminal law enforcement. It is notable that our Founding Fathers anticipated this very conflict as evidenced by the discussion in the Federalist Papers. Their concern regarding unrestrained government resulted in the separation of powers, checks and balances, and ultimately, the Bill of Rights. Where these important objectives merge, it is critical that we, as a democratic Nation, pay close attention to traditional Fourth Amendment principles. The Fourth Amendment has served this Nation well for 220 years, through many other
Page 42 - OPINION AND ORDER

perils. Title III, like the Supreme Court's pronouncements in Katz and Berger, recognizes that wiretaps are searches requiring fidelity to the Fourth Amendment.
Moreover, the constitutionally required interplay between Executive action, Judicial decision, and Congressional enactment, has been eliminated by the FISA amendments. Prior to the amendments, the three branches of government operated with thoughtful and deliberate checks and balances - a principle upon which our Nation was founded. These constitutional checks and balances effectively curtail overzealous executive, legislative, or judicial activity regardless of the catalyst for overzealousness. The Constitution contains bedrock principles that the framers believed essential. Those principles should not be easily altered by the expediencies of the moment.
Despite this, the FISCR holds that the Constitution need not control the conduct of criminal surveillance in the United States. In place of the Fourth Amendment, the people are expected to defer to the Executive Branch and its representation that it will authorize such surveillance only when appropriate. The defendant here is asking this court to, in essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning. This court declines to do so.
For over 200 years, this Nation has adhered to the rule of law - with unparalleled success. A shift to a Nation based on
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extra-constitutional authority is prohibited, as well as illadvised. In this regard, the Supreme Court has cautioned:
The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society. Keith, 407 U.S. at 314. Therefore, I conclude that 50 U.S.C. §§ 1804 and 1823, as amended by the Patriot Act, are unconstitutional because they violate the Fourth Amendment of the United States Constitution. Plaintiffs' Amended Complaint for declaratory relief is granted.
CONCLUSION Based on the foregoing, plaintiffs' motion for summary judgment (doc. 126) is granted. Defendant's motion to dismiss the Amended Complaint (doc. 134) or cross-motion for summary judgment (doc. 134) is denied. The parties have until November 1, 2007, to submit a stipulation regarding costs, or file briefs regarding this issue. IT IS SO ORDERED.
Dated this 26 day of September, 2007.
/s/ Ann Aiken Ann Aiken
United States District Judge
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRANDON B IERI M AYFIELD, an



individual; M ONA M AYFIELD,

appointed as Guardian Ad Litem

per Order; S HANE M AYFIELD;

SHARIA M AYFIELD; S AMIR

MAYFIELD, individuals, by and through their guardian ad litem



Mona Mayfield,

Plaintiffs-Appellees,

v.

UNITED S TATES OF A MERICA,
 Defendant-Appellant.

No. 07-35865
D.C. No. CV-04-01427-AA
ORDER AND OPINION

Appeal from the United States District Court for the District of Oregon
Ann L. Aiken, Chief District Judge, Presiding
Argued and Submitted February 5, 2009—Portland, Oregon
Filed March 24, 2010
Before: Richard A. Paez and Johnnie B. Rawlinson, Circuit Judges, and Raner C. Collins,* District Judge.
Opinion by Judge Paez

*The Honorable Raner C. Collins, United States District Judge for the District of Arizona, sitting by designation.
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COUNSEL
Douglas Letter and Scott McIntosh, Civil Division, Department of Justice, Washington, D.C., for the appellant.

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Elden Rosenthal, Rosenthal & Greene, P.C., Portland, Oregon, for the appellees.

ORDER
The government’s Motion to Correct Factual Misstatements in the Panel Opinion is GRANTED. The opinion filed December 10, 2009 and reported at 588 F.3d 1252, is vacated, and a new opinion is filed concurrently with this Order.
The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.
The petition for rehearing en banc is denied. No further petitions for rehearing shall be filed.
IT IS SO ORDERED.

OPINION
PAEZ, Circuit Judge:
In this appeal, we must decide whether Plaintiffs-Appellees Brandon Mayfield, a former suspect in the 2004 Madrid train bombings, and his family, have standing to seek declaratory relief against the United States that several provisions of the Foreign Intelligence Surveillance Act ( “FISA”) as amended by the PATRIOT Act are unconstitutional under the Fourth Amendment of the U.S. Constitution. Although Mayfield settled the bulk of his claims against the government, the Stipulation for Compromise Settlement and Release (the “Settlement Agreement ”) allowed him to pursue his Fourth Amendment claim. According to the terms of the Settlement Agreement, the only relief available to Mayfield, if he were

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to prevail on his Fourth Amendment claim, is a declaratory judgment. He may not seek injunctive relief. We hold that, in light of the limited remedy available to Mayfield, he does not have standing to pursue his Fourth Amendment claim because his injuries already have been substantially redressed by the Settlement Agreement, and a declaratory judgment would not likely impact him or his family. We thus vacate the judgment of the district court.

I.

On March 11, 2004, terrorists’ bombs exploded on commuter trains in Madrid, Spain, killing 191 people and injuring another 1600 people, including three U.S. citizens. 1 Shortly after the bombings, the Spanish National Police ( “SNP”) recovered fingerprints from a plastic bag containing explosive detonators. The bag was found in a Renault van located near the bombing site. On March 13, 2004, the SNP submitted digital photographs of the fingerprints to Interpol Madrid, which then transmitted them to the FBI in Quantico, Virginia.

The FBI searched fingerprints in its own computer system, attempting to match the prints received from Spain. On March 15, 2004, an FBI computer produced 20 candidates whose known prints had features in common with what was identi-

1Under the terms of the parties’ Settlement Agreement, the parties agreed that plaintiffs’ Fourth Amendment claim would be litigated solely on the basis of the Amended Complaint for Declaratory Relief ( “Amended Complaint”), the parties’ Recitation of Stipulated Facts, and memoranda of law. Under the terms of the Settlement Agreement, the government was not required to file an answer to the Amended Complaint. Thus, the government neither admitted nor denied the factual allegations in the operative complaint. The government did, however, stipulate, for purposes of this litigation only, to the facts recited in the Recitation of Stipulated Facts. Accordingly, for purposes of this opinion, we rely on the undisputed facts set forth in the Recitation of Stipulated Facts and, where additional context is necessary, the factual allegations in the Amended Complaint. Our discussion of Mayfield’s personal and family history is taken from the district court’s opinion.

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fied as Latent Finger Print #17 ( “LFP #17 ”), one of whom was Brandon Mayfield.

Mayfield is a U.S. citizen, born in Oregon and brought up in Kansas. He lives with his wife and three children in Aloha, Oregon, a suburb of Portland. He is 43 years old, a former Army officer with an honorable discharge, and a practicing lawyer. Mayfield is also a Muslim with strong ties to the Muslim community in Portland.

On March 17, 2004, FBI Agent Green, a fingerprint specialist, concluded that Mayfield’s left index fingerprint matched LFP #17. Green then submitted the fingerprints for verification to Massey, a former FBI employee who continued to contract with the FBI to perform forensic analysis of fingerprints. Massey verified that Mayfield’s left index fingerprint matched LFP #17. The prints were then submitted to a senior FBI manager, Wieners, for additional verification. Wieners also verified the match.

On March 20, 2004, the FBI issued a formal report matching Mayfield’s print to LFP #17. The next day, FBI surveillance agents began to watch Mayfield and follow him and members of his family when they traveled to and from the mosque, Mayfield’s law office, the children’s schools, and other family activities. As detailed in the Recitation of Stipulated Facts, the FBI also applied to the Foreign Intelligence Security Court ( “FISC”) for authorization to “collect foreign intelligence information. ” Pursuant to that authorization, the FBI conducted “covert physical searches of the Mayfield home,” and “electronic surveillance targeting Mr. Mayfield at the Mayfield home and at Mr. Mayfield’s law office. ”

In April 2004, the FBI sent Mayfield’s fingerprints to the Spanish government. The SNP examined the prints and the FBI’s report, and concluded that there were too many unexplained dissimilarities between Mayfield’s prints and LFP #17 to verify the match. When FBI agents then met with their

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Spanish counterparts in Madrid, the Spanish investigators refused to validate the FBI’s conclusion that there was a match.

After the meeting with the SNP, the FBI submitted an affidavit to the district court, stating that experts considered LFP #17 a “100% positive identification” of Mayfield. The affidavit also included information about Mayfield’s religious practice and association with other Muslims. On May 4, 2004, the government named Brandon Mayfield as a material witness and filed an application for material witness order. The district court appointed an independent fingerprint expert, Kenneth Moses, to analyze the prints in question. Mayfield and his defense attorneys approved the appointment. Moses concluded that LFP #17 was from Mayfield’s left index finger.

The district court issued several search warrants, which resulted in the search of Mayfield’s home and office, and the seizure of his computer and paper files. On May 6, 2004, Mayfield was arrested and imprisoned for two weeks. Mayfield alleged that his family was not told where he was being held, but was told that his fingerprints matched those of the Madrid train bomber, and that he was the prime suspect in a crime punishable by death. While Mayfield was detained, national and international headlines declared him to be linked to the Madrid bombings. On May 20, 2004, news reports revealed that Spain had matched LFP #17 with a man named Ouhane Daoud, an Algerian citizen. Mayfield was released from prison the following day.

On October 4, 2004, Mayfield, his wife, and his children 2
filed suit against the government in the United States District Court for the District of Oregon. The complaint allegedBaivens3

2Because the family’s claims are identical to Mayfield’s, we refer to all plaintiffs collectively as “Mayfield.”
3Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).

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claim for unlawful arrest and imprisonment and unlawful searches, seizures, and surveillance in violation of the Fourth Amendment; a claim under the Privacy Act, 5 U.S.C. § 552a, for leaking information from the FBI and DOJ to media sources regarding Brandon Mayfield’s arrest; a claim for the return of property improperly seized; and a Fourth Amendment challenge to the constitutionality of several FISA provisions and the PATRIOT Act.

Mayfield reached a settlement with the government, and the district court approved it on November 29, 2006. The Settlement Agreement provided that the government would pay compensatory damages of $2 million to Mayfield and his family; destroy documents relating to the electronic surveillance conducted pursuant to FISA; return seized “material witness materials ” to Mayfield; and apologize to Mayfield and his family. In return, Mayfield agreed to release the government of all liability or further litigation, except as to one specific claim: that 50 U.S.C. §§ 1804 (authorizing electronic surveillance under FISA) and 1823 (authorizing physical searches under FISA) violate the Fourth Amendment of the U.S. Constitution. The parties agreed that the sole relief that Mayfield could seek or that the court could award with regard to this claim would be a declaratory judgment.

On December 6, 2006, Mayfield filed an Amended Com-
plaint for Declaratory Judgment. The Amended Complaint
challenged the constitutionality of 50 U.S.C. §§ 1804 and 1823, the portions of FISA, as amended by the PATRIOT Act4,
that allow the government to conduct physical searches, elec-

4Prior to 2001, several federal courts construed FISA to authorize searches and electronic surveillance only when the government’s primary purpose was to collect foreign intelligence information. See, e.g., In re Sealed Case , 310 F.3d 717 (FISCR 2002) (discussing pre-2001 cases). Following the September 11, 2001 terrorist attacks, Congress enacted the PATRIOT Act, which changed the original statutory language of “the purpose” to “a significant purpose.” Pub. L. No. 107-56, § 218, 115 Stat. 291 (2001) (amending 50 U.S.C. §§ 1804(a)(6)(B) and 1823(a)(6)(B)).

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tronic surveillance, and wiretaps of residences and offices without requiring proof of probable cause or an assertion that the primary purpose of such activities is to gather foreign intelligence information. The complaint asserted that the statutory provisions were facially unconstitutional. Mayfield alleged that he continued to suffer injury because the government refused to identify and destroy all materials derived from the FISA searches and seizures, 5 and that he feared future uses of the materials as well as other future applications of FISA against him and his family.

Both Mayfield and the government moved for summary judgment. The government also moved to dismiss on the ground that Mayfield did not have standing to pursue the Fourth Amendment claim and therefore the court lacked jurisdiction. The court subsequently issued a decision denying the motion to dismiss and granting summary judgment to Mayfield. See Mayfield v. United States, 504 F. Supp. 2d 1023 (D. Or. 2007). The district court determined that it had jurisdiction because there was a live case or controversy that could be redressed with a declaratory judgment. Id. at 1034. As to the merits, the court held that the challenged provisions of FISA, namely 50 U.S.C. §§ 1804 and 1823, as amended by the PATRIOT Act, were unconstitutional because they violate the Fourth Amendment’s requirement of probable cause, and because they authorize FISA activities as long as a “significant purpose ”—rather than the “primary purpose ” required pre-Patriot Act—is to gather foreign intelligence information. Id. at 1032, 1042-43.

5Although the settlement agreement required the government to destroy or return to Mayfield certain FISA material that it acquired or seized pursuant to the the FISA electronic surveillance and search authority targeting Mayfield, the government was not required to destroy any derivative material contained in government files. The Recitation of Stipulated Facts acknowledges that “[s]ome derivative materials . . . remain in government files at present. ”

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The government filed a timely appeal. The government argues that the district court did not have jurisdiction to hear Mayfield’s Fourth Amendment claim because a declaratory judgment will not redress Mayfield’s residual injuries. In addition, the government argues that the district court erred in declaring 50 U.S.C. §§ 1803 and 1823 unconstitutional. Finally, the government argues that the district court improperly decided other issues that were outside the scope of the Amended Complaint and thus foreclosed by the Settlement Agreement.

II.

In the Amended Complaint, Mayfield sought a declaratory judgment that 50 U.S.C. §§ 1804 and 1823, as amended by the PATRIOT Act, are facially unconstitutional. Mayfield alleged that the government used the challenged statutory provisions to conduct covert surveillance, searches of the family’s private quarters, and seizures of the family’s private materials. Mayfield further asserted that because the government obtained these materials unlawfully, and even though the government returned the physical materials, the continued retention of any derivative material was also unlawful. The purpose of the desired declaratory judgment was thus twofold: 1) to prevent future uses of FISA against Mayfield; and 2) to force the government to return or destroy all derivative materials in its possession obtained from Mayfield by unconstitutional means. 6

6See Mayfield, 504 F. Supp. 2d at 1034 ( “The government provides that derivative materials may include photocopies or photographs of documents from confidential client files in Mayfield’s law office, summaries and excerpts from the computer hard drives from the Mayfield law office and plaintiffs’ personal computers at home, analysis of plaintiffs’ personal bank records and bank records from Mayfield’s law office, analysis of client lists, websites visited, family financial activity, summaries of confidential conversations between husband and wife, parents and children, and other private activities of a family’s life within their home. These materials, in a derivative form, have been distributed to various government agencies.”).

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[1] To bring suit in federal court, a plaintiff must establish three constitutional elements of standing. First, the plaintiff must have suffered an “injury in fact, ” the violation of a protected interest that is (a) “concrete and particularized,” and (b) “actual or imminent. ” Lujan v. Defenders of Wildlife , 504 U.S. 555, 560 (1992). Second, the plaintiff must establish a causal connection between the injury and the defendant’s conduct. Id. Third, the plaintiff must show a likelihood that the injury will be “redressed by a favorable decision. ” Id. (quoting Simon v. E. Kentucky Welfare Rights Org. , 426 U.S. 26, 43 (1976)).

[2] “[A] plaintiff must demonstrate standing separately for each form of relief sought. ” Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., Inc ., 528 U.S. 167, 185 (2000). Thus, a plaintiff who has standing to seek damages for a past injury, or injunctive relief for an ongoing injury, does not necessarily have standing to seek prospective relief such as a declaratory judgment. See id. at 185-86; City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983).

The government contends that the district court lacked jurisdiction over Mayfield’s claims because Mayfield lacks the requisite Article III standing. According to the government, Mayfield’s Fourth Amendment claim in the Amended Complaint is based on past injuries and speculation about the possibility of future injuries. Furthermore, as the government argues, the retention of derivative materials obtained from the FISA activities would not be affected by a declaratory judgment because there is no requirement that the government release or destroy the fruits of an unlawful search. The government thus asserts that Mayfield has not demonstrated that his injury is “imminent” or will be redressed by the relief sought. See Defenders of Wildlife , 504 U.S. at 560-61.

Standing is a question of law that we review de novo. Bernhardt v. County of Los Angeles , 279 F.3d 862, 867 (9th Cir. 2002). We also review de novo a grant of summary judgment.

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Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1039 (9th Cir. 1999). The district court determined that Mayfield alleged an ongoing injury by the very fact of the government’s retention of derivative FISA materials. Mayfield, 504 F. Supp. 2d at 1034. The court further concluded that a judgment declaring the challenged statutory provisions unconstitutional would likely result in the government’s making reasonable efforts to destroy the derivative materials in its possession. Id. We agree that Mayfield suffers an actual, ongoing injury, but do not agree that a declaratory judgment would likely redress that injury. See Johnson v. Stuart , 702 F.2d 193, 196 (9th Cir. 1983). We therefore reverse the judgment of the district court with regard to standing. We also vacate the district court’s judgment on the merits and do not address the question of whether the challenged provisions of FISA, as amended by the PATRIOT Act, are unconstitutional.

A. Ongoing Injury

To establish Article III standing, a plaintiff must show inter alia that he faces imminent injury on account of the defendant’s conduct. Defenders of Wildlife , 504 U.S. at 560. Past exposure to harmful or illegal conduct does not necessarily confer standing to seek injunctive relief if the plaintiff does not continue to suffer adverse effects. Id. at 564. Nor does speculation or “subjective apprehension ” about future harm support standing. Friends of the Earth , 528 U.S. at 184; see also Defenders of Wildlife , 504 U.S. at 560. Once a plaintiff has been wronged, he is entitled to injunctive relief only if he can show that he faces a “real or immediate threat . . . that he will again be wronged in a similar way. ” Lyons, 461 U.S. at 111 (1983).

The government does not contest that Mayfield was subjected to surveillance, searches, and seizures authorized by FISA and the FISC. The government argues, however, that it acted under a unique set of circumstances that are highly unlikely to recur. The government further argues that any pos-

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sibility that it will use the derivative materials in its possession is “wholly speculative. ” Mayfield responds that he continues to suffer harm as the result of the FISA activities. He argues that the retention by government agencies of materials derived from the seizures in his home and office constitutes an ongoing violation of his constitutional right to privacy.

[3] Although questions of standing are reviewed de novo, we will affirm a district court’s ruling on standing when the court has determined that the alleged threatened injury is sufficiently likely to occur, unless that determination is clearly erroneous or incorrect as a matter of law. Armstrong v. Davis, 275 F.3d 849, 861 (9th Cir. 2001). In Armstrong, we enumerated two ways in which a plaintiff can demonstrate that such injury is likely to recur. Id. “First, a plaintiff may show that the defendant had, at the time of the injury, a written policy, and that the injury ‘stems from’ that policy. ” Id. “Second, the plaintiff may demonstrate that the harm is part of a ‘pattern of officially sanctioned . . . behavior, violative of the plaintiffs’ [federal] rights.’ ” Id. (quoting LaDuke v. Nelson , 762 F.2d 1318, 1323 (9th Cir. 1985)) (alterations in original). Here, Mayfield asserts that his injury stems from the government’s application of the challenged FISA provisions, as amended by the PATRIOT Act. The causal link between the government’s actions and Mayfield’s injury is not disputed. Nor is the fact that the government’s actions were authorized by FISA, which constitutes both the “written policy ” and “pattern of officially sanctioned behavior ” that gave rise to standing under Armstrong. Based on the undisputed facts, the district court concluded that Mayfield “continue[s] to suffer a present, on-going injury due to the government’s continued retention of derivative material from the FISA seizure. ” Mayfield, 504 F. Supp. 2d at 1034. We agree with the district court’s determination.

B. Redressability

[4] To establish standing, a plaintiff must also show that a favorable decision will likely redress his injury. Defenders of

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Wildlife, 504 U.S. at 560; Levine v. Vilsack , 587 F.3d 986, 991-92 (9th Cir. 2009) . When the lawsuit at issue challenges the legality of government action, and the plaintiff has been the object of the action, then it is presumed that a judgment preventing the action will redress his injury. Defenders of Wildlife, 504 U.S. at 561-62. Here, Mayfield seeks declaratory relief against the type of government action that indisputably caused him injury. He is thus entitled to a presumption of redressability.

[5] The government argues that a declaration that the challenged provisions of FISA are unconstitutional would not require the government to destroy the derivative materials in its possession, and therefore would not redress Mayfield’s injury. The government is correct that it would not necessarily be required by a declaratory judgment to destroy or otherwise abandon the materials. See, e.g., Pennsylvania Bd. of Probation and Parole v. Scott , 524 U.S. 357, 362 (1998) (noting that a Fourth Amendment violation occurs at the moment of the illegal search or seizure, and that the subsequent use of the evidence obtained does not per se violate the Constitution); INS v. Lopez-Mendoza , 468 U.S. 1032, 1046 (1984) (holding that the Fourth Amendment does not provide a retroactive remedy for illegal conduct). The district court stated that a declaratory judgment would require the government to “act lawfully and make all reasonable efforts to destroy the derivative materials.” Mayfield, 504 F. Supp. 2d at 1034. But there is nothing in the declaratory judgment that would make it unlawful for the government to continue to retain the derivative materials. 7 To establish standing, Mayfield must show a “substantial likelihood ” that the relief sought would redress

7The district court stated “that 50 U.S.C. §§ 1804 and 1823, as amended by the Patriot Act, are unconstitutional because they violate the Fourth Amendment of the United States Constitution. Plaintiffs’ Amended Complaint for declaratory relief is granted.” Mayfield, 504 F. Supp. 2d at 104243. The court did not address the legality of the government’s retention of derivative materials.

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the injury. See Johnson , 702 F.2d at 196. There is no such likelihood here.

We recently addressed standing in

Stormans, Inc. v.

Selecky, 571 F.3d 960 (9th Cir. 2009). In Stormans, pharmacy

owners challenged—under the Free Exercise Clause—a

Washington regulation requiring pharmacists to stock and dis-

pense Plan B (emergency contraception). In holding that the

pharmacy owners met the criteria for Article III standing, we

found that their injury would be redressed by a judgment that

the regulation was unconstitutional. Id. at 971. The connec-

tion in Stormans was direct: the regulation required the phar-

macists to perform actions that they would not have to

perform if the regulation were invalidated. Id. If the statutes

challenged by Mayfield were declared unconstitutional, there

will be no direct consequence to him. The government will

not be required to act in any way that will redress Mayfield’s

past injuries or prevent likely future injuries. Our opinion in

Stormans, therefore, does not affect our holding here.

[6] We also recently addressed, in Paulsen v. CNF Inc. , a scenario analogous to Mayfield’s. 559 F.3d 1061 (9th Cir. 2009). In Paulsen, plaintiffs were prescription drug plan participants who brought suit against a benefits management company under ERISA § 502(a), 29 U.S.C. § 1132, alleging breach of fiduciary duty. Id. at 1073. Plaintiffs argued that if the court found in their favor, the plan’s drug costs, contributions, and co-payments would decrease. Id. We found that the alleged injury was not redressable because the court’s judgment would not compel the defendants to increase their disbursement of benefits payments. Id. at 1074. We thus held that plaintiffs lacked standing under Article III because “any prospective benefits depend on an independent actor who retains broad and legitimate discretion the courts cannot presume either to control or predict. ” Id. (internal citations omitted). Mayfield’s situation resembles that of the plaintiffs in Paulsen, as redressability depends upon the actions of the government in response to the court’s judgment; as in Paul-

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sen, such actions, in light of the unique circumstances of this case, are not within the control of the court.

III.

[7] Mayfield unquestionably had standing to seek damages and injunctive relief when he filed the original complaint. The requirements for seeking such relief, however, differ from the requirements for seeking a declaratory judgment. See Lyons , 461 U.S. at 111. Having bargained away all other forms of relief, Mayfield is now entitled only to a declaratory judgment. Although it is undisputed that the government retains materials derived from the FISA searches and surveillance of Mayfield’s property, the only relief that would redress this alleged Fourth Amendment violation is an injunction requiring the government to return or destroy such materials. Under the terms of the Settlement Agreement, Mayfield cannot seek injunctive relief. 8 Nor is it likely that the government will return the materials of its own volition, as it is under no legal obligation to do so, and has stated in its brief that it does not intend to take such action. Finally, the district court did not— in conjunction with its Opinion and Order sua sponte order the government to return or destroy the derivative materials, but merely stated that “it is reasonable to assume that the Executive branch of the government will act lawfully and make all reasonable efforts to destroy the derivative materials when a final declaration of the unconstitutionality of the challenged provisions is issued. ” Mayfield, 504 F. Supp. 2d at 1034.

8Paragraph 8 of the Settlement Agreement stated: “The parties agree that the sole claim that is not released as part of this settlement and that is at issue in such Amended Complaint is the plaintiffs’ claim that 50 U.S.C. 1804 (relating to electronic surveillance under the Foreign Intelligence Surveillance Act) and 50 U.S.C. 1823 (relating to physical searches under such Act) violate the Fourth Amendment on their face, and the parties agree that the sole relief that will be awarded should the plaintiffs prevail on such claim is a declaratory judgment that one or both provisions is in violation of the Fourth Amendment . . . . ” (emphasis added).

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[8] Given the limited remedy left open by the Settlement Agreement and the absence of any authority on which the district court could rely to insist sua sponte that the derivative materials be returned or destroyed, we must conclude that Mayfield lacks standing to pursue his Fourth Amendment claim. We therefore vacate the judgment of the district court without reaching the merits of Mayfield’s Fourth Amendment claim, and we remand to the district court with directions to dismiss Mayfield’s Amended Complaint.

VACATED AND REMANDED.

 
 Case 6:04-cv-1427 As of 09/17/2014 09:14 PM PDT Page 1 of 17 Page ID#: <pageID>
PROTECTIVE ORD,TERMINATED
U.S. District Court District of Oregon (Eugene (6)) CIVIL DOCKET FOR CASE # 6:04−cv−01427−AA

Mayfield et al v. Ashcroft et al Assigned to: Chief Judge Ann L. Aiken Case in other court: Ninth Circuit, 05−35971
Ninth Circuit, 05−35971 Ninth Circuit, 07−35865 Cause: 28:1343 Violation of Civil Rights Plaintiff Brandon Bieri Mayfield an individual
Plaintiff Mona Mayfield Appointed as Guardian Ad Litem per Order

Date Filed: 10/04/2004 Date Terminated: 11/05/2007 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant
represented by Elden M. Rosenthal Rosenthal &Greene, PC 121 SW Salmon Street Suite 1090 Portland, OR 97204 (503) 228−3015 Fax: (503) 228−3269 Email: elden@rgdpdx.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gerry Spence The Spence Law Firm, LLC 15 South Jackson Street P.O. Box 548 Jackson, WY 83001 (800) 967−2117 Fax: (307) 733−5248 Email: gls@gerryspence.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele Longo Eder Michele Longo Eder, Attorney at Law, LLC 4 SW High Street P.O. Box 1530 Newport, OR 97365 (541) 265−3337 Fax: (541) 265−6633 Email: michele@michelelongoeder.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elden M. Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gerry Spence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele Longo Eder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case 6:04-cv-1427 As of 09/17/2014 09:14 PM PDT Page 2 of 17 Page ID#: <pageID>

Plaintiff Shane Mayfield
Plaintiff Sharia Mayfield
Plaintiff Samir Mayfield individuals, by and through their guardian ad litem Mona Mayfield

represented by Elden M. Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gerry Spence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele Longo Eder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elden M. Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gerry Spence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele Longo Eder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elden M. Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gerry Spence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele Longo Eder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
John Ashcroft Attorney General of the United States of America TERMINATED: 01/18/2007

represented by Edward J. Martin US Department of Justice Torts Branch, Civil Division P.O. Box 7146 Washington, DC 20044−7146 (202) 616−1024 Fax: (202) 616−4314 Email: edward.martin2@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case 6:04-cv-1427 As of 09/17/2014 09:14 PM PDT Page 3 of 17 Page ID#: <pageID>

Defendant Richard K. Werder an individual TERMINATED: 01/18/2007
Defendant Terry Green an individual TERMINATED: 01/18/2007
Defendant John T. Massey an individual TERMINATED: 01/18/2007

Sara Wood Clash−Drexler US Department of Justice P.O. Box 883 Washington, DC 20044 (202) 514−3481 Fax: (202) 616−8460 Email: sara.clash−drexler@usdoj.gov TERMINATED: 01/31/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Edward J. Martin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Wood Clash−Drexler (See above for address) TERMINATED: 01/31/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Edward J. Martin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Wood Clash−Drexler (See above for address) TERMINATED: 01/31/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christie A. Leary Greenspun, Davis &Leary 10605 Judicial Drive Building A5 Fairfax, VA 22030 (703) 352−0100 Fax: (703) 591−7268 Email: cal@greenspunlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter D. Greenspun Greenspun &Mann, PC 10605 Judicial Drive Building A5 Fairfax, VA 22030 (703) 352−0100 Fax: (703) 591−7268 Email: pdg@greenspunlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert C. Weaver , Jr. Garvey Schubert Barer 121 SW Morrison Street 11th Floor

Case 6:04-cv-1427 As of 09/17/2014 09:14 PM PDT Page 4 of 17 Page ID#: <pageID>

Portland, OR 97204 503−228−3939 Fax: 503−226−0259 Email: rweaver@gsblaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas Peter Mann Greenspun &Mann PC 10605 Judicial Drive Building A5 Fairfax, VA 22030−5167 (703) 352−0100 Fax: (703) 591−7268 Email: tpm@greenspunlaw.com TERMINATED: 11/28/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Ryan O'Connor Epiq Systems 10300 Southwest Allen Blvd Beaverton, OR 97005 (503) 350−5800 Fax: (503) 350−5890 Email: mioconnor@epiqsystems.com ATTORNEY TO BE NOTICED

Defendant
Michael Wieners an individual TERMINATED: 01/18/2007

represented by Edward J. Martin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara Wood Clash−Drexler (See above for address) TERMINATED: 01/31/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Department of Justice an executive department of the United States of America TERMINATED: 01/18/2007

represented by Edward J. Martin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Renee S. Orleans US Department of Justice 20 Massachusetts Avenue, NW Room 7120 Washington, DC 20530 (202) 514−4504 Fax: (202) 616−8470 Email: renee.orleans@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara Wood Clash−Drexler (See above for address) TERMINATED: 01/31/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicholas A. Oldham

Case 6:04-cv-1427 As of 09/17/2014 09:14 PM PDT Page 5 of 17 Page ID#: <pageID>

U.S. Department of Justice, Civil Division Ben Franklin Station P.O. Box 883 Washington, DC 20044 (202) 514−3367 Fax: (202) 616−8470 Email: nicholas.oldham@usdoj.gov

Defendant
Federal Bureau of Investigation an agency of the United States of America, and John Does I−X, individuals TERMINATED: 01/18/2007

represented by Edward J. Martin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Renee S. Orleans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara Wood Clash−Drexler (See above for address) TERMINATED: 01/31/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicholas A. Oldham (See above for address) ATTORNEY TO BE NOTICED

Defendant United States of America

represented by Edward J. Martin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicholas A. Oldham (See above for address) ATTORNEY TO BE NOTICED

Renee S. Orleans (See above for address) ATTORNEY TO BE NOTICED

Date Filed 10/04/2004
10/04/2004 10/04/2004 10/04/2004 10/04/2004

# Docket Text
1 Complaint. Filing Fee in amount of $150.00 collected. Receipt No. 179594 issued. Summons issued as to All Defendants.Filed by Brandon Bieri Mayfield, Mona Mayfield, Samir Mayfield, Shane Mayfield, Sharia Mayfield against John Ashcroft, Department of Justice, Federal Bureau of Investigation, Terry Green, John T. Massey, Richard K. Werder, Michael Wieners.(pvh, ) (Entered: 10/04/2004)
2 Discovery and Pretrial Scheduling Order and Notice of Case Assignment. Discovery to be completed by 2/1/2005. Joint Alternate Dispute Resolution Report due by 3/3/2005.Pretrial Order due by 3/3/2005. (pvh, ) (Entered: 10/04/2004)
3 Petition for Appointment of Guardian Ad Litem. Filed by all plaintiffs. (pvh, ) (Entered: 10/04/2004)
4 Affidavit of Elden M. Rosenthal in Support of Motion. Filed by all plaintiffs. (Related document(s): Motion to Appoint 3 .)(pvh, ) (Entered: 10/04/2004)
5 Notice of Case Reassignment: This case has been reassigned from Judge Ann L. Aiken to Judge Owen M. Panner. (pvh, ) (Entered: 10/06/2004)

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10/13/2004
10/13/2004
10/14/2004 10/19/2004 11/05/2004 11/05/2004 11/05/2004 11/05/2004 11/08/2004 11/08/2004 11/15/2004 11/15/2004 11/15/2004 11/15/2004 11/15/2004 11/15/2004 11/15/2004

6 Order Granting Application for Special Admission Pro Hac Vice of Gerry Spence for Samir Mayfield; Shane Mayfield; Sharia Mayfield; Brandon Bieri Mayfield and Mona Mayfield. Application Fee in amount of $100 collected. Receipt No. 179595 issued. Signed on 10/13/04 by Judge Owen M. Panner. (dmd, ) (Entered: 10/14/2004)
7 ORDER Appointing Guardian Ad Litem. IT IS NOW, THEREFORE, ORDERED that Mona Mayfield is appointed Guardian Ad Litem for the minor plaintiffs Shane Mayfield, Sharia Mayfield, and Samir Mayfield, and is directed and authorized to prosecute the above−entitled action in their behalf. (See 2−page order for details). Signed on 10/13/04 by Judge Owen M. Panner. (dmd, ) (Entered: 10/14/2004)
8 Record of Order setting a scheduling conference by telephone on October 28, 2004, at 2:15 p.m. The court will initiate the call. Judge Owen M. Panner, presiding. (dmd, ) (Entered: 10/14/2004)
9 Record of Order. Scheduling Conference set for 12/13/2004 at 01:30PM by Telephone before Judge Owen M. Panner. The court will initiate the call. Judge Owen M. Panner, presiding. (dmd, ) (Entered: 10/20/2004)
10 Motion to Reassign Judge or, in the Alternative, to Recuse or Disqualify Judge. Filed by all plaintiffs. (dmd, ) (Entered: 11/05/2004)
11 Memorandum in Support of Motion to Reassign Case, Motion to Recuse 10 . Filed by all plaintiffs. (dmd, ) (Entered: 11/05/2004)
12 Affidavit of Gerry Spence in Support of Motion. Filed by all plaintiffs. (Related document(s): Motion to Reassign Case, Motion to Recuse 10 .)(dmd, ) (Entered: 11/05/2004)
13 Affidavit of Elden M. Rosenthal in Support of Motion. Filed by all plaintiffs. (Related document(s): Motion to Reassign Case, Motion to Recuse 10 .)(dmd, ) (Entered: 11/05/2004)
14 Affidavit of Owen M. Panner, United States District Judge.(Related document(s): Motion to Reassign Case, Motion to Recuse 10 .)(dmd, ) (Entered: 11/08/2004)
15 Notice of Case Reassignment: This case has been reassigned from Judge Owen M. Panner to Judge Ann L. Aiken and reassigned to the Eugene Division. (Meyer, Craig) (Entered: 11/08/2004)
16 Waiver of Service of Summons −− Accepted by Richard Werder on November 4, 2004. Filed by Brandon Bieri Mayfield, Mona Mayfield, Samir Mayfield, Shane Mayfield, Sharia Mayfield. (cp, ) (Entered: 11/17/2004)
17 Waiver of Service of Summons −− Accepted by Michael Wieners on November 4, 2004. Filed by Brandon Bieri Mayfield, Mona Mayfield, Samir Mayfield, Shane Mayfield, Sharia Mayfield. (cp, ) (Entered: 11/17/2004)
18 Return of Service of summons and complaint. Service executed upon John Ashcroft on October 12, 2004. Filed by Brandon Bieri Mayfield, Mona Mayfield, Samir Mayfield, Shane Mayfield, Sharia Mayfield. (cp, ) (Entered: 11/17/2004)
19 Return of Service executed upon Richard K. Werder on October 6, 2004. Filed by Brandon Bieri Mayfield, Mona Mayfield, Samir Mayfield, Shane Mayfield, Sharia Mayfield. (cp, ) (Entered: 11/17/2004)
20 Return of Service executed upon Terry Green on 10/7/04. Filed by Brandon Bieri Mayfield, Mona Mayfield, Samir Mayfield, Shane Mayfield, Sharia Mayfield. (cp, ) (Entered: 11/17/2004)
21 Return of Service executed upon John T. Massey on October 21, 2004. Filed by Brandon Bieri Mayfield, Mona Mayfield, Samir Mayfield, Shane Mayfield, Sharia Mayfield. (cp, ) (Entered: 11/17/2004)
22 Return of Service executed upon Michael Wieners on October 7, 2004. Filed by Brandon Bieri Mayfield, Mona Mayfield, Samir Mayfield, Shane Mayfield, Sharia Mayfield. (cp, ) (Entered: 11/17/2004)

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11/15/2004 11/15/2004
11/29/2004 12/01/2004
12/23/2004
01/14/2005 01/14/2005
01/14/2005 01/14/2005 01/14/2005 01/14/2005
01/14/2005 01/14/2005 01/20/2005 01/20/2005 01/20/2005 01/21/2005

23 Return of Service of summons and complaint. Service executed upon Department of Justice on October 12, 2004. Filed by Brandon Bieri Mayfield, Mona Mayfield, Samir Mayfield, Shane Mayfield, Sharia Mayfield. (cp, ) (Entered: 11/17/2004)
24 Return of Service of summons and complaint. Service executed upon Federal Bureau of Investigation on October 12, 2004. Filed by Brandon Bieri Mayfield, Mona Mayfield, Samir Mayfield, Shane Mayfield, Sharia Mayfield. (cp, ) (Entered: 11/17/2004)
25 Motion for Extension of Time to Answer until 1/14/05. Filed by John Ashcroft, Department of Justice, Federal Bureau of Investigation, Terry Green, Richard K. Werder, Michael Wieners. (cp, ) (Entered: 11/30/2004)
26 CIVIL MINUTES: Record of Order by Ann L. Aiken: Status Conference set for 1/20/2005 at 09:00AM by Telephone before Judge Ann L. Aiken. Ordered granting defendants' unopposed motion 25 for enlargement of time to 1/14/05 to respond to plaintiff's complaint. Ordered by Judge Ann L. Aiken. (lae, ) (Entered: 12/01/2004)
27 CIVIL MINUTES: Record of Order by Ann L. Aiken: Status Conference reset at defendants' request from 1/20/04 to 1/21/2005 at 11:30AM by Telephone. The court will initiate the call. Ordered by Judge Ann L. Aiken. (lae, ) (Entered: 12/23/2004)
28 Motion to Dismiss Counts 12 and 13 of the Complaint. Filed by John Ashcroft, Department of Justice, Federal Bureau of Investigation. (Clash−Drexler, Sara) (Entered: 01/14/2005)
29 Memorandum in Support of Motion to Dismiss Counts 12 and 13 of the Complaint. Filed by John Ashcroft, Department of Justice, Federal Bureau of Investigation. (Related document(s): Motion to Dismiss 28 .)(Clash−Drexler, Sara) (Entered: 01/14/2005)
30 Answer to Complaint Count 11. Filed by John Ashcroft, Department of Justice, Federal Bureau of Investigation.(Clash−Drexler, Sara) (Entered: 01/14/2005)
31 Motion to Dismiss or in the Alternative for Summary Judgment. Filed by Richard K. Werder, Terry Green, Michael Wieners. (Martin, Edward) (Entered: 01/14/2005)
32 Memorandum in Support Motion to Dismiss or in the Alternative for Summary Judgment. Filed by Richard K. Werder, Terry Green, Michael Wieners. (Related document(s): Motion to Dismiss 31 .)(Martin, Edward) (Entered: 01/14/2005)
33 Concise Statement of Material Facts in Support of Defendants Werder, Green and Weiners' Motion to Dismiss or in the Alternative for Summary Judgment 31 . Filed by Richard K. Werder, Terry Green, Michael Wieners. (Martin, Edward) Modified on 5/9/2005 (lae, ). (Entered: 01/14/2005)
34 Motion to File Exhibits Under Seal. Filed by Richard K. Werder, Terry Green, Michael Wieners. (cp, ) (Entered: 01/18/2005)
35 Memorandum in Support of Motion to File Exhibits Under Seal. Filed by Richard K. Werder, Terry Green, Michael Wieners. (Related document(s): 34 .)(cp, ) (Entered: 01/18/2005)
36 Motion to Dismiss Alternative Motion for Summary Judgment. Filed by John T. Massey. (O'Connor, Michael) (Entered: 01/20/2005)
37 Memorandum in Support of Motion to Dismiss; Alternative Motion for Summary Judgment. Filed by John T. Massey. (Related document(s): Motion to Dismiss 36 .)(O'Connor, Michael) (Entered: 01/20/2005)
38 Declaration of John T. Massey, Jr. in Support of His Motion to Dismiss; Alternative Motion for Summary Judgment. Filed by John T. Massey. (Related document(s): Motion to Dismiss 36 .)(O'Connor, Michael) (Entered: 01/20/2005)
39 CIVIL MINUTES: Record of Proceedings: Telephone Status Conference held 1/21/05. Ordered plaintiff allowed to file an amended complaint to add a defendant. The court reserves ruling on the timing of the summary judgment motion in

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01/25/2005 01/25/2005 01/25/2005 01/28/2005 01/28/2005 01/28/2005 01/28/2005 02/03/2005 02/03/2005 02/03/2005 02/04/2005
02/07/2005

relation to the Rule 56(f) application. Ordered parties to confer and submit a briefing schedule on the motion to dismiss and Rule 56(f) application. Elden Rosenthal, Michele Longo Eder present as counsel for plaintiffs. Sara Clash−Drexler, Elizabeth Shapiro, Timothy Garren, Richard Montague, Michael O'Connor, Peter Greenspun present as counsel for defendants. Court Reporter: Kristi Anderson. Ann L. Aiken presiding. (lae, ) (Entered: 01/21/2005)
40 Order Granting Application for Special Admission Pro Hac Vice of Peter D. Greenspun for John T. Massey. Application Fee in amount of $100 collected. Receipt No. 600000170 issued. Signed on 1/24/05 by Judge Ann L. Aiken. (ljb, ) Modified on 2/4/2005 (cp, ). (Entered: 01/25/2005)
41 Order Granting Application for Special Admission Pro Hac Vice of Christie A. Leary for John T. Massey. Application Fee in amount of $100 collected. Receipt No. 600000170 issued.. Signed on 1/24/05 by Judge Ann L. Aiken. (ljb, ) Modified on 2/4/2005 (cp, ). (Entered: 01/25/2005)
42 Order Granting Application for Special Admission Pro Hac Vice of Thomas Peter Mann for John T. Massey. Application Fee in amount of $100 collected. Receipt No. 600000170 issued. Signed on 1/24/05 by Judge Ann L. Aiken. (ljb, ) Modified on 2/4/2005 (cp, ). (Entered: 01/25/2005)
43 Motion to Continue of Summary Judgment Motion (FRCP 56(f)). Filed by all plaintiffs. (Rosenthal, Elden) (Entered: 01/28/2005)
44 Memorandum in Support of Motion for Continuance of Summary Judgment Motion (FRCP56(f)). Filed by all plaintiffs. (Related document(s): Motion to continue 43 .)(Rosenthal, Elden) (Entered: 01/28/2005)
45 Affidavit of Elden M. Rosenthal in Support of Motion for Continuance of Summary Judgment Motion. Filed by all plaintiffs. (Related document(s): Motion to continue 43 .)(Rosenthal, Elden) (Entered: 01/28/2005)
46 Declaration of Brandon Mayfield. Filed by all plaintiffs. (Related document(s): Motion to continue 43 .)(Rosenthal, Elden) (Entered: 01/28/2005)
47 Motion to Compel Defendant Ashcroft to Provide Notice. Filed by all plaintiffs. (Rosenthal, Elden) (Entered: 02/03/2005)
48 Memorandum in Support of Motion to Compel Defendant Ashcroft to Provide Notice. Filed by all plaintiffs. (Related document(s): Motion to compel 47 .)(Rosenthal, Elden) (Entered: 02/03/2005)
49 Declaration of Brandon Mayfield. Filed by all plaintiffs. (Related document(s): Motion to compel 47 .)(Rosenthal, Elden) (Entered: 02/03/2005)
50 Order regarding Orders on Application for special admission pro hac vice, 40 41 and 42 for Administrative Correction of the Record. A Clerical error has been discovered in the case record. In accordance with Fed. R. Civ. P. 60(a), the Clerk is directed to make the following administrative corrections to the record and to notify all parties accordingly. Correct the docket text in Orders 40 , 41 and 42 to reflect that Peter D. Greenspun, Christie A. Leary and Thomas Peter Mann the attorneys appointed pro hac vice, represent Defendant, John T. Massey, rather than the plaintiffs. The Clerk is also directed to remove attorney Peter D. Greenspun, Christie A. Leary and Thomas Peter Mann as attorney for Plaintiff and add them as attorneys of record for Defendant, John T. Massey on the docket sheet. (cp, ) (Entered: 02/04/2005)
51 CIVIL MINUTES: Record of Order by Judge Ann L. Aiken: Adopting the schedule agreed upon by all counsel and set forth in plaintiff's letter to the court, dated 2/2/05. Ordered Defendants Werder, Green, Weiners and Massey will respond to Plaintiffs' Motion for Continuance of Summary Judgment Motion 43 by 2/25/05. Ordered Plaintiffs' reply to be filed by 3/25/05. Plaintiffs' Motion for Continuance of Summary Judgment Motion 43 taken under advisement as of 3/28/2005. Ordered plaintiffs' counsel will respond to U. S. Dept of Justice and FBI's Motion to Dismiss counts 12 and 13 of the Complaint 28 by 2/11/05. Defendants' reply to be filed by 3/10/05. Ordered Defendants U. S. Dept of Justice and FBI's Motion to Dismiss Counts 12 and

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02/07/2005 02/08/2005 02/09/2005 02/16/2005 02/25/2005 02/25/2005 03/17/2005 03/21/2005
03/21/2005
03/23/2005 03/29/2005 03/29/2005

13 of the Complaint 28 taken under advisement as of 3/14/05. Ordered plaintiffs to respond to Defendants Werder, Green, and Wieners' Motion to Dismiss 31 and Defendant Massey's Motion to Dismiss 36 by 3/18/05. Defendants to file a reply within 30 days of receipt of plaintiffs' response. Ordered Defendants Werder, Green, Wieners' Motion to Dismiss 31 and Defendant Massey's Motion to Dismiss 36 taken under advisement as if 4/25/05. Ordered by Judge Ann L. Aiken. (lae, ) (Entered: 02/07/2005)
52 ORDER: Record of Order by Judge Ann L. Aiken: Pursuant to Defendants Green, Wieners and Werder's letter request to the court, dated 2/3/05, ordered Defendants Green, Wieners and Werder's Motion to File Exhibits Under Seal 34 and the accompanying memorandum 35 are hereby withdrawn. (lae, ) (Entered: 02/07/2005)
53 Memorandum in Opposition To Defendants Department of Justice and Federal Bureau of Investigation's Motion To Dismiss Counts Twelve and Thirteen of The Complaint to Motion to Dismiss Counts 12 and 13 of the Complaint 28 . Filed by all plaintiffs. (Attachments: # 1 Exhibit)(Rosenthal, Elden) (Entered: 02/08/2005)
54 Amended Memorandum in Opposition to Defendants Department of Justice and Federal Bureau of Investigation's Motion to Dismiss Counts Twelve and Thirteen of The Complaint to Motion to Dismiss Counts 12 and 13 of the Complaint to Motion to Dismiss Counts 12 and 13 of the Complaint 28 . Filed by all plaintiffs. (Attachments: # 1 Exhibit Exhibits A − I)(Rosenthal, Elden) (Entered: 02/09/2005)
55 Exhibits (Related Doc. Motion to Dismiss or in the Alternative (Concise Statement of Material Facts) 33 ). Filed by Richard K. Werder, Terry Green, Michael Wieners.(cp, ) (Entered: 02/16/2005)
56 Memorandum in Opposition to Motion to Continue of Summary Judgment Motion (FRCP 56(f)) 43 . Filed by John T. Massey.(Mann, Thomas) (Entered: 02/25/2005)
57 Memorandum in Opposition to Motion to Continue of Summary Judgment Motion (FRCP 56(f)) 43 . Filed by Richard K. Werder, Terry Green, Michael Wieners.(Martin, Edward) (Entered: 02/25/2005)
58 Response to Defendants Werder's, Green's, Wieners' and Massey's to Motion to Dismiss Alternative Motion for Summary Judgment 36 , Motion to Dismiss or in the Alternative for Summary Judgment 31 , Motion to Dismiss or in the Alternative (Concise Statement of Material Facts) 33 . Filed by all plaintiffs. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Rosenthal, Elden) (Entered: 03/17/2005)
59 CIVIL MINUTES: Record of Order by Ann L. Aiken: As requested in the government's letter to the court, dated 3/3/05, ordered government's response to Plaintiff's Motion to Compel Defendant Ashcroft to Provide Notice 47 shall be filed by 4/8/2005. Pursuant to LR 26.5(c), no reply may be filed. Plaintiff's Motion to Compel Defendant Ashcroft to Provide Notice taken under advisement as of 4/11/2005. Ordered by Judge Ann L. Aiken. (lae, ) (Entered: 03/21/2005)
60 CIVIL MINUTES: Record of Order by Ann L. Aiken: As requested in the government's letter to the court, dated 3/3/05, ordered government's reply to Agency Defendants' Motion to Dismiss Counts 12 and 13 of the Complaint 28 due by 4/8/2005. Defendants John Ashcroft, Department of Justice, and FBI's Motion to Dismiss Counts 12 and 13 of the Complaint taken under advisement as of 4/11/2005. Ordered by Judge Ann L. Aiken. (lae, ) (Entered: 03/21/2005)
61 Reply to Defendants Werder's, Green's, Wieners' and Massey's Memoranda in Opposition to Motion to Continue of Summary Judgment Motion (FRCP 56(f)) 43 . Filed by all plaintiffs. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B)(Rosenthal, Elden) (Entered: 03/23/2005)
62 Motion for Extension of Time to File a Response/Reply to Motion to Dismiss 31 . Filed by Richard K. Werder, Terry Green, Michael Wieners. (Martin, Edward) (Entered: 03/29/2005)
63 Memorandum in Support of Motion for Extention of Time. Filed by Richard K. Werder, Terry Green, Michael Wieners. (Related document(s): Motion for Extension of Time to File Response/Reply to a Motion 62 .)(Martin, Edward)

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03/29/2005 03/29/2005 03/29/2005 03/29/2005 03/31/2005
03/31/2005
03/31/2005
04/15/2005 04/15/2005 04/19/2005 04/20/2005
04/27/2005 04/28/2005 05/09/2005

(Entered: 03/29/2005)
64 Motion to File Supplement in support of Rule 56 Application. Filed by all plaintiffs. (Rosenthal, Elden) (Entered: 03/29/2005)
65 Supplement Memorandum of Law in Support of Rule 56(f) Application. Filed by all plaintiffs. (Related document(s): Motion 64 .)(Rosenthal, Elden) (Entered: 03/29/2005)
66 Motion to File Supplemental Memorandum of Law In Response to Defendants' Motion to Dismiss Counts 12 and 13 of the Complaint. Filed by all plaintiffs. (Rosenthal, Elden) (Entered: 03/29/2005)
67 Supplement Memorandum of Law in Response to Defendants' Motion to File Supplemental Memorandum of Law In Response to Defendants' Motion to Dismiss Counts 12 and 13 of the Complaint. Filed by all plaintiffs. (Related document(s): Motion 66 .)(Rosenthal, Elden) (Entered: 03/29/2005)
68 ORDER: Record of Order by Judge Ann L. Aiken: Granting Defendants Green, Wieners, and Werder's Motion for Enlargement of Time to File Reply 62 . Reply due by 4/27/2005. Defendants Green, Wieners, and Werder's Motions to Dismiss taken under advisement as of 5/2/2005 for 31 and for 33 . (lae, ) (Entered: 03/31/2005)
69 ORDER: Record of Order by Judge Ann L. Aiken: Granting Plaintiffs' Motion to file Supplemental Memorandum of Law in Support of Plaintiffs' Rule 56(f) Application 64 . Defendants allowed until 4/15/05 to respond to plaintiffs' supplemental memorandum. Plaintiffs' Rule 56(f) Motion 43 taken under advisement as of 4/18/2005. (lae, ) (Entered: 03/31/2005)
70 ORDER: Record of Order by Judge Ann L. Aiken: Granting Plaintiffs' Motion to File Supplemental Memorandum of Law in Response to Defendants' Motion to Dismiss Counts 12 and 13 of the Complaint 66 . Defendants' reply due 4/15/05. Defendants' Motion to Dismiss Counts 12 and 13 of the Complaint 28 taken under advisement as of 4/18/2005. (lae, ) (Entered: 03/31/2005)
71 Supplemental Memorandum in Opposition to Plaintiffs' Supplemental Memorandum to Motion to Continue of Summary Judgment Motion (FRCP 56(f)) 43 . Filed by Richard K. Werder, Terry Green, Michael Wieners. (Attachments: # 1 Exhibit A−C)(Martin, Edward) (Entered: 04/15/2005)
72 Reply to Motion to Dismiss Counts 12 and 13 of the Complaint 28 , Motion to Compel Defendant Ashcroft to Provide Notice 47 . Filed by John Ashcroft, Department of Justice, Federal Bureau of Investigation.(Clash−Drexler, Sara) (Entered: 04/15/2005)
73 Motion for Permission to File Reply Memorandum re Plaintiffs' Motion to Compel Defendant Ashcroft to Provide Notice. Filed by all plaintiffs. (Rosenthal, Elden) (Entered: 04/19/2005)
74 ORDER: Record of Order by Judge Ann L. Aiken: Granting Plaintiffs' Motion for Permission to File Reply Memorandum Re Plaintiffs' Motion to Compel Defendant Ashcroft to Provide Notice 73 . Reply due by 4/27/2005. Plaintiffs' Motion to Compel Defendant Ashcroft to Provide Notice 47 taken under advisement as of 5/2/2005. (lae, ) (Entered: 04/20/2005)
75 Reply to Plaintiff's Reponse to Motion to Dismiss or in the Alternative for Summary Judgment 31 . Filed by Richard K. Werder, Terry Green, Michael Wieners. (Attachments: # 1 Attachment)(Martin, Edward) (Entered: 04/27/2005)
76 Reply Memorandum to Motion to Compel Defendant Ashcroft to Provide Notice 47 . Filed by all plaintiffs.(Rosenthal, Elden) (Entered: 04/28/2005)
77 Order for Administrative Correction of the Record. A Clerical error has been discovered in the case record. In accordance with Fed. R. Civ. P. 60(a), the Clerk is directed to make the following administrative corrections to the record and to notify all parties accordingly. Correct docket entry for document #33 to read Concise Statement of Material Fact in Support of Defendants Werder, Green, and

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05/25/2005 06/03/2005
07/13/2005 07/15/2005
07/26/2005 07/28/2005
08/05/2005
08/11/2005 08/11/2005 08/11/2005

Weiner's Motion to Dismiss or in the Alternative for Summary Judgment. The entry was incorrectly entered as a motion. (lae, ) (Entered: 05/09/2005)
78 Supplemental Declaration of Sanchez in Support of Defendants Werder's, Green's and Wiener's Motion to Dismiss or in the Alternative for Summary Judgment. Filed by Richard K. Werder, Terry Green, Michael Wieners. (Martin, Edward) (Entered: 05/25/2005)
79 CIVIL MINUTES: Record of Order by Ann L. Aiken: Oral Argument set on Plaintiffs' Motion to Continue Summary Judgment Motion (FRCP 56(f)) 43 , Defendants Department of Justice, FBI and Ashcroft's Motion to Dismiss Counts 12 and 13 of the Complaint 28 , Defendants Werder, Green, and Wieners' Motion to Dismiss or in the Alternative for Summary Judgment 31 , Plaintiffs' Motion to Compel Defendant Ashcroft to Provide Notice 47 , and Defendant Massey's Motion to Dismiss Alternative Motion for Summary Judgment 36 for 7/15/2005 at 10:00AM in Courtroom 13B of the U. S. Courthouse in Portland before Judge Ann L. Aiken. Ordered by Judge Ann L. Aiken. (lae, ) (Entered: 06/03/2005)
80 Supplemental Motion for Summary Judgment and in Opposition to Individual Defendants' Motions to Dismiss. Filed by all plaintiffs. (Attachments: # 1 Exhibit Steele, Beth Email) (Rosenthal, Elden) (Entered: 07/13/2005)
81 CIVIL MINUTES: Record of Proceedings: Motion Hearing held 7/15/05 in Portland. Ordered Plaintiffs' Motion to Compel Defendant Ashcroft to Provide Notice 47 , Defendant Massey's Motion to Dismiss 36 , Plaintiffs' Motion to Continue Summary Judgment Motion 43 , Defendants' Ashcroft, Department of Justice, and FBI's Motion to Dismiss 28 , Defendants Werder, Green, and Wieners' Motion to Dismiss 31 taken under advisement as of 7/15/2005. Elden Rosenthal, Gerry Spence present as counsel for plaintiffs. Thomas Mann, Michael O'Connor, Timothy Garren, Richard Montague, Sara Clash−Drexler, Jeffrey Bucholtz, Scott Glick present as counsel for defendants. Court Reporter: Nancy Walker. Ann L. Aiken presiding. (lae, ) (Entered: 07/18/2005)
82 Transcript of Proceedings held on July 15, 2005 before Judge Ann L. Aiken. Court Reporter: Nancy M. Walker. (cp, ) (Entered: 07/27/2005)
83 ORDER: Plaintiffs' motion for continuance of summary judgment motions 43 is granted as follows: plaintiffs' motion is granted as to defendants' alternative motions for summary judgment. Plaintiffs' responses in opposition to defendants' motions are due after discovery. Plaintiffs' motion to compel defendant Gonzales to provide notice 47 is denied with leave to renew. (See order). Defendant John T. Massey's motion to dismiss or in the alternative for summary judgment 36 is denied as follows: (See Order). Defendants Werder's, Green's and Wieners' motion to dismiss or in the alternative for summary judgment 31 is denied as follows: (See Order). Finally, defendants Department of Justice and Federal Bureau of Investigation motion to dismiss counts twelve and thirteen of the complaint 28 is denied as follows: (See Order). Signed on July 28, 2005 by Judge Ann L. Aiken. (cp, ) (Entered: 07/28/2005)
84 CIVIL MINUTES: Record of Proceedings: TelephoneStatus Conference held 8/5/05 to discuss mediation options. Ordered parties to confer regarding mediation. Further Status Conference set for 8/23/2005 at 09:00AM by Telephone before Judge Ann L. Aiken. The court will initiate the call. Gerry Spence, Elden Rosenthal present as counsel for plaintiffs. Jeff Bucholtz, Richard Montague, Tim Garren, Elizabeth Shapiro, James Touchey, Edward Martin, Thomas Mann present as counsel for defendants. Court Reporter: Kristi Anderson. Ann L. Aiken presiding. (lae, ) (Entered: 08/05/2005)
85 Answer to Complaint. Filed by John T. Massey.(Mann, Thomas) (Entered: 08/11/2005)
86 Answer to Complaint. Filed by John Ashcroft, Department of Justice, Federal Bureau of Investigation.(Clash−Drexler, Sara) (Entered: 08/11/2005)
87 Answer to Complaint. Filed by Richard K. Werder, Terry Green, Michael Wieners.(Martin, Edward) (Entered: 08/11/2005)

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08/23/2005
08/25/2005 09/23/2005
09/23/2005
09/27/2005 09/29/2005 09/29/2005
10/05/2005 10/05/2005 10/13/2005 10/14/2005 10/14/2005 10/19/2005 10/19/2005 10/24/2005

88 CIVIL MINUTES: Record of Proceedings: TelephoneStatus Conference held 8/23/05. The parties advise the court they have agreed upon a mediator. Ordered parties to contact the court to set up further status conference after they have agreed on date for mediation. Elden Rosenthal present as counsel for plaintiffs. Jeff Bucholtz, James Touhey, Edward Martin, Sara Clash−Drexler, James Sutherland, Thomas Mann present as counsel for defendants. Court Reporter: Kristi Anderson. Ann L. Aiken presiding. (lae, ) (Entered: 08/23/2005)
89 Transcript of Proceedings held on August 5, 2005 before Judge Ann Aiken. Court Reporter: Kristi Anderson.. (cp, ) (Entered: 08/25/2005)
90 Notice of Appeal to the 9th Circuit from Order on motion to dismiss,,, Order on motion to continue, Order on motion to compel,,,,,,,,,,,,,,, 83 . Filed by Richard K. Werder, Terry Green, Michael Wieners. Transcript Designation due by 11/22/2005. (Related Document(s): Order on motion to dismiss,,, Order on motion to continue, Order on motion to compel,,,,,,,,,,,,,,, 83 ) (Martin, Edward) (Entered: 09/23/2005)
91 Notice of Appeal to the 9th Circuit from Order on motion to dismiss,,, Order on motion to continue, Order on motion to compel,,,,,,,,,,,,,,, 83 . Filed by John T. Massey. Transcript Designation due by 11/22/2005. (Related Document(s): Order on motion to dismiss,,, Order on motion to continue, Order on motion to compel,,,,,,,,,,,,,,, 83 ) (Mann, Thomas) (Entered: 09/23/2005)
92 Notification of Appeal from Notice of Appeal 90 sent to USCA for the 9th Circuit and counsel along with a copy of the docket sheet. (cp, ) (Entered: 09/27/2005)
93 Motion for Order for Certification that Defendants Massey?s, Werder?s, Wieners? And Green?s Appeals From The Court?s Orders Re Their Motion to Dismiss, or in The Alternative for Summary Judgment, are Frivolous. Oral Argument requested Filed by all plaintiffs. (Rosenthal, Elden) (Entered: 09/29/2005)
94 Memorandum in Support of Plaintiffs? Motion for Written Certification That Defendants Massey?s, Werder?s, Wieners? And Green?s Appeals From The Court?s Orders Re Their Motion To Dismiss, Or In The Alternative For Summary Judgment, Are Frivolous. Filed by all plaintiffs. (Related document(s): Motion for Order, 93 .)(Rosenthal, Elden) (Entered: 09/29/2005)
95 Appeal Docketing Fee in amount of $255.00 collected; Receipt No. 300005689 issued. (Related doc. 91 )(cp, ) (Entered: 10/05/2005)
96 Notification of Appeal from Notice of Appeal 91 sent to USCA for the 9th Circuit and counsel along with a copy of the docket sheet. (cp, ) (Entered: 10/05/2005)
97 Response in Opposition to Plaintiffs' Motion to Certify Appeal as Frivolous to Motion for Order, 93 . Filed by Richard K. Werder, Terry Green, Michael Wieners. (Attachments: # 1 Attachment)(Martin, Edward) (Entered: 10/13/2005)
Notice confirming Docketing Record on Appeal re Notice of Appeal, 91 Case Appealed to 9th Circuit; Case Number 05−35990 assigned. (cp, ) (Entered: 10/14/2005)
98 Copy of Time Schedule Order from USCA for the 9th Circuit re Notice of Appeal, 91 : Transcript due 11/23/05; opening brief due 1/9/06. (Related Document(s): Notice of Appeal, 91 ) (cp, ) (Entered: 10/14/2005)
99 Motion for Extension of Time to File a Response/Reply re Written Certification to Motion for Order, 93 . Filed by all plaintiffs. (Rosenthal, Elden) (Entered: 10/19/2005)
100 Affidavit of Elden M. Rosenthal in Support of Motion for Extension of Time to File Reply Memorandum re Certification. Filed by all plaintiffs. (Related document(s): Motion for Extension of Time to File Response/Reply to a Motion 99 .)(Rosenthal, Elden) (Entered: 10/19/2005)
101 ORDER: Record of Order by Judge Ann L. Aiken: Granting Plaintiffs' Motion for Extension of Time to File Reply Memorandum Re Certification that Defendant Massey's, Werder's, Wieners' and Green's Appeal Are Frivolous 99 . Reply due by 11/10/2005. Motion taken under advisement as of 11/14/2005 for 93 . (lae, ) (Entered: 10/24/2005)

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10/24/2005 10/24/2005 11/07/2005 11/08/2005
11/14/2005 11/17/2005 06/09/2006 06/09/2006 06/22/2006 06/22/2006 06/22/2006 06/22/2006
06/23/2006
06/23/2006 09/06/2006 09/14/2006

102 Certified Copy of Order from USCA for the 9th Circuit re Notice of Appeal 90 .Transcript designation due 10/26/05. (cp, ) (Entered: 10/24/2005)
Notice confirming Docketing Record on Appeal re Notice of Appeal 90 ; Case Appealed to Ninth Circuit Case; Number 05−35971 assigned.(cp, ) (Entered: 10/24/2005)
103 Copy of Order from USCA for the 9th Circuit re Notice of Appeal, 91 : Appellant has 14 days to file civil appeals docketing statement. (cp, ) (Entered: 11/08/2005)
104 Reply In Support of Plaintiffs' to Motion for Order for Certification that Defendants Massey?s, Werder?s, Wieners? And Green?s Appeals From The Court?s Orders Re Their Motion to Dismiss, or in The Alternative for Summary Judgment, are Frivolous 93 Oral Argument requested. Filed by all plaintiffs.(Rosenthal, Elden) (Entered: 11/08/2005)
105 Report re: Civil Appeals Docketing Statement (Original mailed directly to Ninth Circuit Court of Appeals). Filed by John T. Massey. (Attachments: # 1 Attachment Opinion and Order of Judge Aiken − 7−28−05# 2 Attachment John T. Massey's Notice of Appeal)(Mann, Thomas) (Entered: 11/14/2005)
106 ORDER: Record of Order by Judge Ann L. Aiken: Denying Plaintiffs' Motion for Certification that Defendants Massey's, Werder's, Wieners' and Green's Appeals from the Court's Orders Re Their Motion to Dismiss or, in the Alternative for Summary Judgment, are frivolous 93 . (lae, ) (Entered: 11/17/2005)
107 Motion to Compel. Oral Argument requested Filed by all plaintiffs. (Rosenthal, Elden) (Entered: 06/09/2006)
108 Memorandum in Support of Motion to Compel. Filed by all plaintiffs. (Related document(s): Motion to compel 107 .)(Rosenthal, Elden) (Entered: 06/09/2006)
109 Consent Motion for Protective Order. Filed by John Ashcroft, Department of Justice, Federal Bureau of Investigation. (Attachments: # 1 Proposed Order Proposed Protective Order) (Clash−Drexler, Sara) (Entered: 06/22/2006)
110 Memorandum in Support of Consent Motion for Protective Order. Filed by John Ashcroft, Department of Justice, Federal Bureau of Investigation. (Related document(s): Motion for Protective Order 109 .)(Clash−Drexler, Sara) (Entered: 06/22/2006)
111 Consent Motion for Extension of Time to File a Response/Reply to Motion to compel 107 . Filed by John Ashcroft, Department of Justice, Federal Bureau of Investigation. (Clash−Drexler, Sara) (Entered: 06/22/2006)
112 Memorandum in Support of Consent Motion for Extension of Time to File Response to Motion to Compel. Filed by John Ashcroft, Department of Justice, Federal Bureau of Investigation. (Related document(s): Motion for Extension of Time to File Response/Reply to a Motion 111 .)(Clash−Drexler, Sara) (Entered: 06/22/2006)
113 ORDER: Record of Order by Judge Ann L. Aiken: Granting Defendants Department of Justice and FBI's Motion for Enlargement of Time to Respond to Plaintiffs' Motion to Compel 111 . Response due 10 days following the court's ruling on Defendants' Motion for Protective Order. Plaintiffs' Motion to Compel 107 is taken under advisement as of 7/17/2006. (lae, ) (Entered: 06/23/2006)
114 Protective Order. Signed on 6/23/06 by Judge Ann L. Aiken. (cp, ) (Entered: 06/23/2006)
115 Record of Order by Ann L. Aiken: Plaintiff's Motion to Compel 107 is stayed pending receipt of the mandate from the Court of Appeals. Ordered by Judge Ann L. Aiken. (lae) (Entered: 09/06/2006)
116 Motion for Leave to Proceed with Discovery. Filed by all plaintiffs.Associated Cases: 6:04−cv−01427−AA, 6:06−cv−00305−AA (Rosenthal, Elden) (Entered: 09/14/2006)

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09/14/2006
09/15/2006
09/15/2006 11/21/2006 11/28/2006
11/28/2006 12/06/2006 12/11/2006 12/27/2006
01/16/2007 01/16/2007 01/16/2007 01/16/2007 01/16/2007 01/16/2007 01/17/2007 01/31/2007

117 Memorandum in Support of Motion for Leave to Proceed with Discovery. Filed by all plaintiffs. (Related document(s): Motion(116 in 6:04−cv−01427−AA, 24 in 6:06−cv−00305−AA).)Associated Cases: 6:04−cv−01427−AA, 6:06−cv−00305−AA (Rosenthal, Elden) (Entered: 09/14/2006)
118 ORDER: Plaintiffs' motion to proceed with discovery 116 is granted as follows: discovery may proceed on plaintiffs' Privacy Act Claim only during the pendency of defendants' interlocutory appeal filed by the Bivens defendants. Further, the court notes that plaintiffs conferred with counsel for the Privacy Act Claim defendants and those defendants have filed no objection to this motion. Ordered by Judge Ann L. Aiken. (lae) (Entered: 09/15/2006)
119 Notice of Appearance of Renee S. Orleans appearing for on behalf of Department of Justice, Federal Bureau of Investigation.Associated Cases: 6:04−cv−01427−AA, 6:06−cv−00305−AA (Orleans, Renee) (Entered: 09/15/2006)
120 Record on Appeal 05−35971 sent to the Ninth Circuit regarding Notice of Appeal, 90 (1 Volume, 1 Bulky with documents 55, 82 and 89). (cp) (Entered: 11/21/2006)
121 MINUTES of Proceedings: Telephone Status Conference held 11/28/06. Elden Rosenthal present as counsel for plaintiffs. Christie Leary, Michael O'Connor, Edward Martin, Timothy Garren, Sara Clash−Drexler, Renee Orleans present as counsel for defendants. Court Reporter: Kristi Anderson. Ann L. Aiken presiding. (lae) (Entered: 11/28/2006)
122 Notice of Attorney Withdrawal: Thomas Peter Mann.Filed by John T. Massey. (O'Connor, Michael) (Entered: 11/28/2006)
123 Amended Complaint for Declaratory Judgment.Filed by Sharia Mayfield, Samir Mayfield, Brandon Bieri Mayfield, Mona Mayfield, Shane Mayfield against all defendants. (Rosenthal, Elden) (Entered: 12/06/2006)
124 Order from USCA for the 9th Circuit dismissing Appeal re Notice of Appeal 90 .(cp) (Entered: 12/13/2006)
125 Scheduling Order by Ann L. Aiken: Pursuant to Plaintiff's letter to the court, dated 12/18/06, ordered plaintiff's motion for summary judgment is due by 1/16/2007. Defendant's response and cross−motion for summary judgment are due by 2/9/2007. Plaintiff's reply is due by 3/9/2007. Defendant's reply due 3/30/07. The parties may amend the schedule, if necessary. Ordered by Judge Ann L. Aiken. (lae) (Entered: 12/27/2006)
126 Motion for Summary Judgment. oral argumentrequested Filed by all plaintiffs. (Rosenthal, Elden) (Entered: 01/16/2007)
127 Certificate of Service by Sharia Mayfield, Samir Mayfield, Brandon Bieri Mayfield, Mona Mayfield, Shane Mayfield of Motion for Summary Judgment 126 . (Rosenthal, Elden) (Entered: 01/16/2007)
128 Concise Statement of Material Fact. Filed by all plaintiffs. (Related document(s): Motion for Summary Judgment 126 .) (Rosenthal, Elden) (Entered: 01/16/2007)
129 Certificate of Service by Sharia Mayfield, Samir Mayfield, Brandon Bieri Mayfield, Mona Mayfield, Shane Mayfield of Concise Statement of Material Fact 128 . (Rosenthal, Elden) (Entered: 01/16/2007)
130 Memorandum in Support. Filed by all plaintiffs. (Related document(s): Motion for Summary Judgment 126 .) (Rosenthal, Elden) (Entered: 01/16/2007)
131 Certificate of Service by Sharia Mayfield, Samir Mayfield, Brandon Bieri Mayfield, Mona Mayfield, Shane Mayfield of Memorandum in Support 130 . (Rosenthal, Elden) (Entered: 01/16/2007)
Appeal Record Returned: 05−35971 returned from the Ninth Circuit regarding Notice of Appeal, 90 . (1 Volume, 2 Bulky Documents) (cp) (Entered: 01/17/2007)
132 Notice of Attorney Substitution:Attorney Nicholas A. Oldham is substituted as counsel of record in place of Attorney Sara Wood Clash−Drexler.Filed by Department of Justice, Federal Bureau of Investigation. (Oldham, Nicholas)

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02/08/2007 02/20/2007 02/20/2007
02/20/2007
02/20/2007 02/23/2007 03/30/2007 03/30/2007 04/18/2007 04/18/2007
05/04/2007 06/11/2007
07/16/2007 09/07/2007 09/07/2007
09/10/2007

(Entered: 01/31/2007)
133 ORDER: Plaintiffs' Motion to Compel 107 is denied as moot. Ordered by Judge Ann L. Aiken. (lae) (Entered: 02/08/2007)
134 Motion to Dismiss Defendant's Motion to Dismiss the Amended Complaint or For Summary Judgment. Filed by United States of America. (Orleans, Renee) (Entered: 02/20/2007)
135 Memorandum in Support Memorandum in Support of Defendant's Motion to Dismiss the Amended Complaint or For Summary Judgment, And Opposition to Plaintiffs' Motion for Summary Judgment. Filed by United States of America. (Attachments: # 1 Exhibit Defendant's Exhibit 1−3) (Orleans, Renee) (Entered: 02/20/2007)
136 Concise Statement of Material Fact Defendant's Concise Statement of Material Facts and Response to Plaintiffs' Concise Statement of Material Facts. Filed by United States of America. (Related document(s): Motion for Summary Judgment 126 .) (Orleans, Renee) (Entered: 02/20/2007)
137 Unopposed Motion to File Excess Pages Defendant's Unopposed Motion to File Excess Pages re Motion to Dismiss 134 . Filed by United States of America. (Orleans, Renee) (Entered: 02/20/2007)
138 ORDER: Granting Defendant's Unopposed Motion to File Excess Pages 137 . Ordered by Judge Ann L. Aiken. (lae) (Entered: 02/23/2007)
139 Reply memo in support of to Motion for Summary Judgment 126 oral argument requested. Filed by all plaintiffs. (Rosenthal, Elden) (Entered: 03/30/2007)
140 Certificate of Service by Sharia Mayfield, Samir Mayfield, Brandon Bieri Mayfield, Mona Mayfield, Shane Mayfield of Reply to Motion 139 (Rosenthal, Elden) (Entered: 03/30/2007)
141 Motion for Extension of Time to File Reply Memorandum. Filed by United States of America. (Orleans, Renee) (Entered: 04/18/2007)
142 Record of Order by Ann L. Aiken : Granting Defendant's Motion for Extension of Time to 5/4/07 to File Reply Memorandum 141 . Plaintiff's Motion for Summary Judgment 126 and Defendant's Motion to Dismiss the Amended Complaint or For Summary Judgment 134 are taken under advisement as of 5/7/2007. Ordered by Judge Ann L. Aiken. (lae) (Entered: 04/18/2007)
143 Reply to Motion to Dismiss Defendant's Motion to Dismiss the Amended Complaint or For Summary Judgment 134 . Filed by United States of America. (Orleans, Renee) (Entered: 05/04/2007)
144 Scheduling Order by Ann L. Aiken: Oral Argument on Plaintiffs' Motion for Summary Judgment 126 and Defendant's Motion to Dismiss the Amended Complaint or For Summary Judgment 134 is set for 9/10/2007 at 10:00AM in Courtroom 12A of the U. S. Courthouse in Portland before Judge Ann L. Aiken. Ordered by Judge Ann L. Aiken. (lae) (Entered: 06/11/2007)
145 Notice of Supplemental Authority.Filed by United States of America. (Attachments: # 1) (Orleans, Renee) (Entered: 07/16/2007)
146 Notice of Supplemental Authority.Filed by all plaintiffs. (Attachments: # 1 Attachment Decision) (Rosenthal, Elden) (Entered: 09/07/2007)
147 Certificate of Service by Sharia Mayfield, Samir Mayfield, Brandon Bieri Mayfield, Mona Mayfield, Shane Mayfield of Notice 146 Filed by Sharia Mayfield, Samir Mayfield, Brandon Bieri Mayfield, Mona Mayfield, Shane Mayfield. (Rosenthal, Elden) (Entered: 09/07/2007)
148 MINUTES of Proceedings: Motion Hearing. Defendant's Motion to Dismiss the Amended Complaint or For Summary Judgment 134 , and Plaintiffs' Motion for Summary Judgment 126 are taken under advisement as of 9/10/2007. Elden Rosenthal, Gerry Spence, Michele Longo Eder present as counsel for plaintiff(s). Jeff Bucholtz, Nicholas Oldham present as counsel for defendant(s). Court

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09/25/2007 09/26/2007
10/09/2007
10/11/2007 10/19/2007 10/22/2007 10/22/2007 11/05/2007 11/07/2007 11/08/2007 01/08/2009 03/22/2010 03/24/2010
05/17/2010

Reporter: Nancy Walker. Ann L. Aiken presiding. (Related document(s): Motion to Dismiss 134 , Motion for Summary Judgment 126 .) (sm) (Entered: 09/10/2007)
149 Notice of Supplemental Information.Filed by United States of America. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3) (Oldham, Nicholas) (Entered: 09/25/2007)
150 OPINION AND ORDER: Plaintiff's Motion for Summary Judgment 126 is granted. Defendant's Motion to Dismiss the Amended Complaint 134 or cross−motion for summary judgment 134 is denied. The parties have until November 1, 2007, to submit a stipulation regarding costs, or file briefs regarding this issue. Signed on September 26, 2007 by Judge Ann L. Aiken. (cp) (Entered: 09/26/2007)
151 Notice of Appeal to the 9th Circuit from Order on motion for summary judgment,, Order on motion to dismiss, 150 . Filed by United States of America. (Related Document(s): Order on motion for summary judgment,, Order on motion to dismiss, 150 ) (Attachments: # 1 Representation Statement) (Oldham, Nicholas) (Entered: 10/09/2007)
152 Notification of Appeal from Notice of Appeal 151 sent to USCA for the 9th Circuit and counsel along with a copy of the docket sheet.(Order being appealed 150 ) (cp) (Entered: 10/11/2007)
153 Transcript of Motion Hearing Proceedings held on 9/10/07 before Judge Ann Aiken. Court Reporter: Nancy M. Walker. (ljb) (Entered: 10/22/2007)
Notice confirming Docketing Record on Appeal re Notice of Appeal 151 Case Appealed to 9th Circuit Court of Appeals Case Number 07−35865 assigned. (Related Document(s): Notice of Appeal 151 ) (ljb) (Entered: 10/22/2007)
154 Certified Copy of Time Schedule Order from USCA for the 9th Circuit re Notice of Appeal 151 . (Related Document(s): Notice of Appeal, 151 ) (ljb) (Entered: 10/22/2007)
155 Judgment: Judgment is entered in favor of plaintiffs and against defendant. This action is dismissed. Signed November 5, 2007 by Deputy Clerk, Leslie Engdall. (cp) (Entered: 11/05/2007)
156 Notice Regarding Transcript Order.Filed by United States of America. (Oldham, Nicholas) (Entered: 11/07/2007)
157 Certificate of Record transmitted to USCA for the 9th Circuit re Notice of Appeal, 151 . (cp) (Entered: 11/08/2007)
158 Record on Appeal 07−35865 sent to the Ninth Circuit regarding Notice of Appeal, 151 . (Attachments: # 1 Docket Sheet) (cp) (Entered: 01/08/2009)
Appeal Record Returned − 07−35865 returned from the Ninth Circuit regarding Notice of Appeal, 151 (2 Volumes, 2 transcripts and 1 bulky document). (cp) (Entered: 03/22/2010)
159 Copy of Order from USCA for the 9th Circuit re Notice of Appeal, 151 . The Government's Motion to Correct Factual Misstatements in the Panel Opinion is Granted. The opinion filed December 10, 2009 and reported at 588 F.3d 1252, is vacated, and a new opinion is filed concurrently with this Order. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The petition for rehearing en banc is denied. No further petitions for rehearing shall be filed. OPINION: Vacating the judgment of the district court without reaching the merits of Mayfield's Fourth Amendment claim, and remand to the district court with directions to dismiss Mayfield's Amended Complaint. VACATED AND REMANDED. (cp) Modified on 3/30/2010 to correct typo (lae). (Entered: 03/29/2010)
160 MANDATE of USCA for the 9th Circuit re Notice of Appeal, 151 . The decision of the District Court is Vacated and Remanded. (cp) (Entered: 05/17/2010)

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05/17/2010 06/30/2010 11/01/2010

161 Judgment: This action is dismissed. Signed May 17, 2010 by Deputy Clerk, Leslie Engdall. (cp) (Entered: 05/18/2010)
162 Writ of Certiorari filed with the US Supreme Court re Notice of Appeal, 151 .Supreme Court Case No. 09−1561. (cp) (Entered: 07/01/2010)
163 Petition for Writ of Certiorari denied by US Supreme Court re Notice of Appeal, 151 . (sln) (Entered: 11/01/2010)