Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 1 of 78 Page ID #:1

1 Peter Bibring (SBN 223981)

2

pbibring@aclu-sc.org Ahilan T. Arulanantham (SBN 237841)

.•

3 aarulanantham@aclu-sc.org

4 Jennifer L. Pasquarella (SBN 263241)

jpasquarella@aclu-sc.org

5 ACLU FOUNDATION OF SOUTHERN CALIFORNIA

6 1313 West Eighth Street Los Angeles, California 900 17

7 Telephone: (213) 977-5236

8 Facsimile: (213) 977-5297

FILED
CLERK U.S. DISTRICT COllRT

FEB 222011

CENTRAL DISTRICT OF CALIFORNiA

BY

DEPUTY

9 Ameena Mirza Qazi (SBN 250404) 10 aqazi@cair.com
COUNCIL ON AMERICAN-ISLAMIC RELATIONS, CALIFORNIA 11 2180 W. Crescent Avenue, Suite F 12 Anaheim, California 92801
Telephone: (714) 776-1847 13 Facsimile: (714) 776-8340
14 Attorneys for Plaintiffs
15 Continued on next page
16 UNITED STATES DISTRICT COURT
17

18

CENTRAL DISTRICT OF CALIFORNIA

19

20

21 YASSIR FAZAGA, ALI UDDIN MALIK, YASSER ABDELRAHIM,
22

23

Plaintiffs,

24

v.

SACV11 - 002Q~RT (v\3'A
CASE NO. CLASS ACTION COMPLAINT
JURY TRIAL DEMANDED

25 FEDERAL BUREAU OF

26

INVESTIGATION; ROBERT MUELLER, DIRECTOR OF THE

27 FEDERAL BUREAU OF

28

INVESTIGATION, in his official ca aci ; STEVEN M. MARTINEZ,

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 2 of 78 Page ID #:2

1 ASSISTANT DIRECTOR IN CHARGE, 2 FEDERAL BUREAU OF
INVESTIGATION'S LOS ANGELES 3 DIVISION, in his official capacity; J. 4 STEPHEN TIDWELL; BARBARA
WALLS; PAT ROSE; KEVIN 5 ARMSTRONG; PAUL ALLEN;

6

Defendants.

7

8 Additional Plaintiffs' Attorneys:

9
Dan Stormer (SBN 101967) 10 dstormer@hadsellstormer.com

11 Joshua Piovia-Scott (SBN 22364)

12

jps@hskrr.com Reem Sa1ahi (SBN 259711)

13 reem@hskrr.com

14

HADSELL STORMER KEENY RICHARDSON & RENICK, LLP 128 N. Fair Oaks Avenue, Suite 204

15 Pasadena, California 911 03

16

Telephone: (626) 585-9600 Facsimile: (626) 577-7079

17

18

19

20

21

22

23

24

25

26

27

28

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 3 of 78 Page ID #:3

1

PRELIMINARY STATEMENT

2

1. This case concerns an FBI-paid agent provocateur who, by

3

misrepresenting his identity, infiltrated several mainstream mosques in Southern

4

California, based on the FBI's instructions that he gather information on Muslims.

5

2. The FBI then used him to indiscriminately collect personal

6

information on hundreds and perhaps thousands of innocent Muslim Americans in

7

Southern California. Over the course of fourteen months, the agents supervising

8

this informant sent him into various Southern California mosques, and through his

9

surveillance gathered hundreds of phone numbers, thousands of email addresses,

1 0

hundreds of hours of video recordings that captured the interiors of mosques,

11

homes, businesses, and the associations of hundreds of Muslims, thousands of

12

hours of audio recording of conversations - both where he was and was not

13

present- as well as recordings of religious lectures, discussion groups, classes,

14

and other Muslim religious and cultural events occurring in mosques.

15

3. This dragnet investigation did not result in even a single conviction

16

related to counterterrorism. This is unsurprising, because the FBI did not gather

17

the information based on suspicion of criminal activity, instead it gathered the

18

information simply because the targets were Muslim.

19

4. Ironically, the operation ended when members of the Muslim

20

communities of Southern California reported the informant to the police because o

21

his violent rhetoric, and ultimately obtained a restraining order against him.

22

5. After this, the informant's identity was revealed, first in court

23

documents where the FBI and local law enforcement revealed his role, and then

24

through his own statements which were reported widely in the press. 1

25

26

1 See, e.g., Jerry Markon, Tension grows between Calif. Muslims, FBI after

27

informant infiltrates mosque, WASH. POST (Dec. 5, 2010); Gillian Flaccus, Calif.

case highlights use ofmosque informants, Assoc. PRESS (Mar. 1, 2009); Matt

28

(cont'd)

- 1-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 4 of 78 Page ID #:4

1

6. By targeting Muslims in the Orange County and Los Angeles areas

2

for surveillance because of their religion and religious practice, the FBI's operation

3

not only undermined the trust between law enforcement and the Southern

4

California Muslim communities, it also violated the Constitution's fundamental

5

guarantee of government neutrality toward all religions.

6

7. The First Amendment guarantees that no person should be singled out

7

for different treatment by government because of his or her religion. "The First

8

Amendment mandates governmental neutrality between religion and religion. The

9

State may not adopt programs or practices which aid or oppose any religion. This

10

prohibition is absolute." Larson v. Valente, 456 U.S. 228, 246 (1982) (quotations

11

and citations omitted).

12

8. By this class action, Plaintiffs seek injunctive relief for themselves

13

and the class of individuals whom Defendants subjected to surveillance and

14

gathered identifiable information about because they are Muslim. Specifically,

15

they seek an order requiring the federal government to destroy the information

16

about them which it collected through this unlawful operation. The named

17

Plaintiffs also seek damages for themselves as individuals based on the claims set

18

forth below.

19

JURISDICTION AND VENUE

20

9. This Court has subject matter jurisdiction pursuant to 28 U.S.C.

21

§ 1331. Because this lawsuit alleges violation of the United States Constitution

22

and federal statutes, it raises questions of federal law. Because those violations

23

include violations of 42 U.S.C. § 1985 and laws to protect civil rights, this Court

24

also has jurisdiction under 28 U.S.C. § 1343. Because those violations include

25

26

Coker, A look at Craig Monteith, OC WEEKLY (Mar. 4, 2009); Teresa Watanabe

27

and Paloma Esquivel, L.A. area Muslims say FBI Surveillance has a chilling effect,

L.A. TIMES (Mar. 1, 2009).

28

- 2-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 5 of 78 Page ID #:5

1

violations of the Privacy Act, see 5 U.S.C. 552a(e)(7), this Court also has

2

jurisdiction under 5 U.S.C. 552a(g)(l)(D).

3

10. This Court has the authority to grant damages, declaratory and

4

injunctive relief, and any other appropriate relief pursuant to Bivens v. Six

5

Unknown Agents, 403 U.S. 388 (1971); 28 U.S.C. 1331; 28 U.S.C. § 1343; 42

6

U.S.C. § 1985; 42 U.S.C. § 2000bb; 5 U.S.C. 552a; and the Declaratory Judgment

7

Act, 28 U.S.C. §§ 2201 and 2202. A substantial, actual, and continuing

8

controversy exists between the parties, with respect to both the class's claim for

9

injunctive relief in the form of file destruction and the individual claims for

10

damages.

11

11. Venue is proper in the Central District of California under 28 U.S.C.

12

§ 139l(b) because a substantial part of the events or omissions giving rise to the

13

claims herein occurred in this District.

14

PAJRTIES

15

12. Plaintiff Sheikh Yassir Fazaga is a thirty-eight year-old U.S. citizen

16

born in Eritrea, who moved to the United States at age fifteen and attended high

17

school in Orange County. From about 1998 to the present, Plaintiff Fazaga served

18

as an imam, or religious leader, of the Orange County Islamic Foundation, a

19

mosque in Mission Viejo, California. His duties there have included directing the

20

religious affairs of the mosque, leading prayer, and conducting educational,

21

spiritual, and recreational activities for the entire mosque community and its

22

youth.2

23

13. Plaintiff Ali Malik is a twenty-six year-old U.S. citizen born in

24

Southern California. Malik's parents carne to the United States from Pakistan

25

before he was born. From the time of his birth through the events alleged herein,

26

27

2 PlaintiffFazaga's legal name is Yassir Mohammed; but he uses the name

"Fazaga" in all his personal and professional dealings.

28

-3-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 6 of 78 Page ID #:6

1

Plaintiff Malik resided in and around Orange County, California. Plaintiff Malik is

2

a practicing Muslim who, from about 2004 through the events alleged herein,

3

regularly attended religious services at the Islamic Center of Irvine ("ICOI''), a

4

mosque in Irvine, California.

5

14. PlaintiffYasser AbdelRahim, is a thirty-four year-old lawful

6

permanent resident of the United States, who emigrated from Egypt when he was

7

twenty-one years old. Plaintiff AbdelRahim first attended business school in

8

Arizona, then moved to Southern California after he obtained his degree in 1999 to

9

work in business consulting. AbdelRahim is a practicing Muslim and has attended

10 religious services regularly at ICOI since about 2005.

11

15. Defendant the Federal Bureau of Investigations (FBI) is an agency of

12 the federal government within the meaning of the Privacy Act. It maintains

13 records on individual whom its agents have investigated, including Plaintiffs and

14 the putative class they seek to represent. The FBI is sued for injunctive relief only.

15

16. Defendant Robert Mueller is the Director of the FBI. In that capacity

16 he is responsible for the direction and oversight of all operations of the FBI,

17 including the retention of records arising out of the investigations of FBI agents.

18 He is sued in his official capacity for injunctive relief only.

19

17. Defendant Steven M. Martinez is the Assistant Director In Charge of

20 the FBI's Los Angeles Field office. In that capacity, he is responsible for the

21

direction and oversight of all operations of the FBI in Los Angeles and Orange

22 Counties, including the retention of records arising out of the investigations of FBI

23 agents in his jurisdiction. He is sued in his official capacity for injunctive relief

24 only.

25

18. Upon information and belief, Defendant Kevin Armstrong was, at all

26 times relevant to this action, employed as an FBI Special Agent assigned to the

27 Orange County area, and a handler for Craig Monteilh. Agent Armstrong met with

28 Monteilh repeatedly and on a regular basis during the time period at issue in this

-4-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 7 of 78 Page ID #:7

1

lawsuit. He directed Craig Monteilh to indiscriminately gather information on the

2

Muslim community in Orange County, and personally supervised and directed

3

Monteilh' s surveillance activities as described herein.

4

19. Upon information and belief, Defendant Paul Allen was, at all times

5

relevant to this action, employed as an FBI Special Agent assigned to the Orange

6

County area, and a handler for Craig Monteilh. Agent Allen met with Monteilh

7

repeatedly and on a regular basis during the time period at issue in this lawsuit. He

8

directed Craig Monteilh to indiscriminately gather information on the Muslim

9

community in Orange County, and personally supervised and directed Monteilh's

10 surveillance activities as described herein.

11

20. Defendant J. Stephen Tidwell, at all times relevant to this action, was

12 an employee of the FBI. Defendant Tidwell served as the Assistant Director in

13 Charge of the FBI's Los Angeles Field Office from August 2005 to December

14 2007, in which capacity he supervised operations in the Central District of

15 California. Upon information and belief, Defendant Tidwell authorized the search

16 for an informant to go into mosques in Orange County to collect information on

17 Muslims, authorized the selection of Craig Monteilh as that informant, read

18 Monteilh's notes of his activities, and authorized and directed the actions of Agents

19 Armstrong and Allen in the handling of Monteilh at all times relevant in this

20 action.

21

21. Upon information and belief, Defendant Barbara Walls was, at all

22 times relevant to this action, employed by the FBI as Special Agent in Charge of

23 the Santa Ana branch office, a satellite office of the FBI's Los Angeles field office.

24 Upon information and belief, Defendant Walls was regularly apprised of the

25 information Agents Armstrong and Allen collected through Montilh; directed the

26 action of FBI agents on various instances based on that information; and actively

27 monitored, directed, and authorized the actions of Agents Armstrong and Allen at

28 all times relevant in this action, for the purpose of surveilling Plaintiffs and other

-5-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 8 of 78 Page ID #:8

1

putative class members because they were Muslim. Eventually, she ordered that

2

Agents Armstrong and Allen cease using Monteilh as an informant because she no

3

longer trusted him.

4

22. Upon information and belief, Defendant Pat Rose was, at all times

5

relevant to this action, employed by the FBI as a Special Agent and acted out of a

6

Santa Ana branch office, a satellite office of the FBI's Los Angeles field office.

7

Upon information and belief, Defendant Rose was apprised of the information

8

Agents Armstrong and Allen collected through Monteilh, and authorized the

9

actions of Agents Armstrong and Allen at all times relevant in this action, for the

10

purpose of engaging in surveillance of the Plaintiffs and the putative class

11

members because they were Muslim. Agent Rose also sought additional

12

authorization to expand the scope of the surveillance program described herein, in

13

an effort to create a Muslim gym that the FBI would use to gather yet more

14

information about the class.

15

23. Defendant Does 1-20 are agents of the Federal Bureau of

16

Investigation and United States Department of Justice, whose identities are not yet

17

known to Plaintiffs, who authorized, directed, and actively monitored the actions

18

alleged herein in order to engage in surveillance of the Plaintiffs and putative class

19 members because they were Muslim.

20

FACTUAL ALLEGATIONS

21

FBI Focus On Islam Since 2001

22

24. Since September 11, 2001, the FBI has focused much of its

23

counterterrorism efforts on broad investigations in the Muslim communities of the

24

United States. In the weeks and months following 9/11, the United States detained

25

hundreds of "suspects" across the country, the vast majority of whom were

26

Muslim. Over the next few years, the FBI engaged in a program to conduct

27

interviews of thousands of individuals who had immigrated to the U.S. from

28

countries in which intelligence allegedly indicated al-Qaeda operated, a burden that

- 6-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 9 of 78 Page ID #:9

1

fell overwhelmingly on Muslims.3

2

25. In January 2003, the FBI ordered its field supervisors to count the

3

number of mosques and Muslims in their jurisdictions to aid in counterterrorism

4

m• vest1•gat1. 0ns.4

5

26. Starting in 2002 and continuing through 2005, the FBI engaged in a

6

program of monitoring radiation levels across the country, including at more than

7

one hundred "Muslim sites," though officials indicated that religion was not the

8

"only criterion." According to one official, Muslim sites were picked because, in

9

the past, terrorists or people close to them had tended to live in Muslim areas or

10

attend local mosques.5

11

27. In a 2006 briefing to reporters, the FBI official second-in-command

12

over the National Security Branch displayed a map of the San Francisco area

13

showing where Iranian immigrants were clustered- and where, he said, an F.B.I.

14

squad was "hunting."6

15

Evolution of FBI Policies on Use of Religion in Investigation

16

28. The FBI has been accused of targeting people based on their First

17

Amendment activity before. During the 1960s and 1970s, domestic intelligence-

18

19

3 Homeland Security: Justice Department's Project to Interview Aliens after September 11,2001, U.S. Gen. Acco~nting Office, G.A.O. No. GA0-03-459

20

(April 2003) available at http://www.gao.gov/new.items/d03459.pdf.

21

4 Eric Lichtblau, F.B.L Tells Offices to Count Local Muslims and Mosques, N.Y.

TIMES (Jan. 28, 2003), available at

22

http://www.nytimes.com/2003/0 1/28/politics/28MOSQ.html.

23

5 Kevin Bohn and Jeanne Meserve, Officials: Muslim sites subject to secret

monitoringfor radiation, C.N.N. (Dec. 24, 2005), available at

24

http://articles.cnn.com/2005-12-23/us/nuke.monitoring 1 radiation-levels-

25

radioactive-material-fbi-program; Mary Beth Sheridan, Mosques Among Sites

Monitored for Radiation, WASH. POST (Dec. 29, 2005).

26

6 Scott Shane and Lowell Bergman, F.B.L Struggling to Reinvent Itselfto Fight

27

Terror, N.Y. TIMES (Oct. 9, 2006), available at

http://www.nytimes.com/2006/10/10/us/lOfbi.html.

28

- 7-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 10 of 78 Page ID #:10

1

gathering activities by the FBI came under increasing scrutiny, culminating in the

2

"Church Committee," a Senate Select Committee that investigated the FBI's

3

COINTELPRO operation.

4

29. In 1976, the Church Committee wrote that "The Government has

5

often undertaken the secret surveillance of citizens on the basis of their political

6

beliefs, even when those beliefs posed no threat of violence or illegal acts on

7

behalf of a hostile foreign power. The Government, operating primarily through

8

secret Informants ... has swept in vast amounts of information about the personal

9

lives, views, and associations of American citizens. Investigations of groups

10

deemed potentially dangerous - and even of groups suspected of associating with

11

potentially dangerous organizations - have continued for decades, despite the fact

12 that those groups did not engage in unlawful activity. Groups and individuals have

13

been harassed and disrupted because of their political views and their lifestyles.

14 Investigations have been based upon vague standards whose breadth made

15

excessive collection inevitable."7

16

30. After uncovering rampant abuses in the FBI's domestic intelligence

17

programs, the Church Committee recommended a series of reforms that were

18

ultimately adopted, including new laws to restrict domestic surveillance for

19 national security purposes under the Foreign Intelligence Surveillance Act, 50

20

U.S.C. § 1801 et seq., and guidelines issued by Attorney General Edward Levi

21

(known as "Attorney General's Guidelines") to regulate domestic intelligence-

22

gathering by the FBI.

23

31. The Levi Guidelines restricted the FBI's domestic intelligence

24

25

7 Final Report ofthe Select Committee to Study Governmental Operations with

Respect to Intelligence Activities, "Book II: Intelligence Activities and the Rights

26

of Americans," at 5, U.S. Senate, 94th Cong., 2nd Sess. (Apr. 26, 1976), available

27

at http://www.aarclibrary.org/publib/church/reportslbook2/html/

ChurchB2 0009a.htm.

28

-8-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 11 of 78 Page ID #:11

1

collection authorities to investigations of potential violations of federal law, and

2

limited the use of specific investigative techniques, including informants. The

3

Guidelines allowed the FBI to conduct full domestic security investigations only

4

on the basis of "specific and articulable facts giving reason to believe that an

5

individual or group is or may be engaged in activities which involve the use of

6

force or violence and which involve or will involve the violation of federallaw..."8

7

More limited Preliminary Investigations could be authorized for 90 days based on

8

receipt "allegations or other information that an individual or group is or may be

9

engaged in activities which involve the use of force or violence and which involve

10 or will involve the violation of federal law," but only to determine whether there is

11

a sufficient factual basis for opening a full investigation.9

12

32. In 2002, Attorney General John Ashcroft revised the Guidelines for

13

General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations,

14 respectively, significantly reducing or eliminating the requirement of a factual

15 basis to believe federal crimes would be committed before the FBI could initiate

16

investigations.10 Significant changes to the General Crimes guidelines included

17 expanding the duration and type of investigative techniques that could be utilized

18

in preliminary investigations; and creating new authorities for the FBI to

19 proactively conduct internet and commercial database searches and attend public

20 places and events for the purpose of detecting or preventing terrorist activities, all

21

22

8 FBI Statutory Charter: Hearings Before the Senate Committee on the Judiciary,

23

95th Cong. pt. 1, p. 22 (1978). 9 Id., at 21.

24

10 Attorney General's Guidelines for General Crimes, Racketeering Enterprise and

25

Terrorism Enterprise Investigations, (May 2002), available at:

http://www.fas.org/irp/agency/doj/fbi/generalcrimes2.pdf and, Attorney General's

26

Guidelines for National Security Investigations and Foreign Intelligence

27

Collection, (Oct. 2003), available at:

http://www.fas.org/irp/agency/doj/fbi/nsiguidelines.pdf

28

- 9-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 12 of 78 Page ID #:12

1

without any factual basis or allegation indicating a possible violation of federal

2

law. Attorney General Ashcroft said terrorism prevention was the key objective of

3

these new Guidelines, arguing that "Our philosophy today is not to wait and sift

4

through the rubble following a terrorist attack. Rather, the FBI must intervene early

5

and investigate aggressively where information exists suggesting the possibility of

6

terrorism, so as to prevent acts of terrorism. The new guidelines advance this

7

strategy of prevention by strengthening investigative authority at the early stage of

8

preliminary inquiries. Also, even absent specific investigative predicates, FBI

9

agents under the new guidelines are empowered to scour public sources for

10

information on future terrorist threats." 11

11

33. In June 2003 the Department of Justice issued "Guidance on the Use

12

of Race by Federal Law Enforcement Agencies," purporting to ban the use of

13

racial or ethnic profiling. 12 This Guidance explicitly failed to include religion as an

14

attribute that could not be used by federal law enforcement officials in making law

15

enforcement decisions. In addition, the Guidance contained broad exemptions for

16

the use of racial profiling in national security and border integrity investigations. 13

17

34. In October 2003 Attorney General Ashcroft revised the Guidelines

18

for FBI National Security Investigations and Foreign Intelligence Collection, to

19

authorize the "proactive collection of information concerning threats to the

20

national security, including information on individuals, groups and organizations

21

of possible investigative interest, and information on possible targets of

22

23

11 Remarks of Attorney General John Ashcroft, Attorney General Guidelines

May 30, 2002, at:

24

http://www.justice.gov/archive/ag/speeches/2002/53002agpreparedremarks.htm

25

12 Department of Justice Civil Rights Division, "Guidance Regarding the Use of

Race by Federal Law Enforcement Authorities, (June 2003), available at:

26

http://www.scribd.com/doc/22092319/DOJ-Guidance-Regarding-the-Use-of-Race-

27

by-Federal-Law-Enforcement-Agencies-June-2003 13 Id.

28

- 10-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 13 of 78 Page ID #:13

1

international terrorist activities or other national security threats." 14 These

2

Guidelines authorized the FBI to conduct "threat assessments" without opening

3

preliminary or full investigations - in other words without the required factual

4

basis to justify such investigations. 15

5

35. The combined effect of these Guidelines and Guidance was to

6

authorize the FBI to engage in intrusive investigations of First Amendment

7

protected activity, and specifically religious practices, without any factual basis to

8

believe any criminal violations or threat to the national security existed.

9

36. In 2008, Attorney General Mukasey revised the guidelines further,

10

explicitly eliminating the need for any factual predicate before FBI agents are

11

allowed to conduct a new category of investigation called "assessments." The

12

2008 revisions allow FBI agents to use an array of intrusive investigative

13

techniques during assessments, including physical surveillance, recruiting and

14

tasking informants, and pre-textual interviews by FBI agents acting in ruse. In

15

response, the FBI revised its internal policy, publishing the FBI's Domestic

16

Intelligence and Operations Guides ("DIOG") in December 2008. 16 The DIOG

17

only requires an "authorized purpose" to conduct an assessment, which is defined

18

broadly as "a national security, criminal or foreign intelligence collection

19

purpose."17 Requiring only an authorized purpose rather than a factual predicate

20

means that the authority to conduct investigations in this category is based on the

21

subjective intent of the agent, rather than any factual information regarding the

22

23

14 Attorney General Guidelines for FBI National Security Investigations and

24

Foreign Intelligence Collection, (Oct. 2003), available at:

25

http://www.fas.org/irp/agency/doj/fbi/nsiguidelines.pdf 15 Id., at 3.

26

16 Federal Bureau of Investigation Domestic Investigations and Operations Guide,

27

(Dec. 2008), available at: http://www.muslimadvocates.org/DIOGs ptl.pdf 17 DIOG p. 21.

28

- 11 -

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 14 of 78 Page ID #:14

1

potential subjects of the assessment establishing suspicion of wrongdoing.

2

Moreover, the DIOG authorizes FBI headquarters and field offices to conduct

3

"Domain Management" assessments to "identify locations of concentrated ethnic

4

communities in the Field Office's domain" and to collect, analyze and map racial

5

and ethnic "behaviors," "cultural traditions," and "life style characteristics" in local

6

communities. FBI Director Robert Mueller issued a broad mandate for FBI

7

offices to "know your domain," which meant "understanding every inch of a given

8

community-its geography, its populations, its economy, and its vulnerabilities."18

9

Domain Management assessments appear to be mandated as a matter of course,

10

and require no specific threat or criminal predicate to justify the collection of

11

information regarding the makeup of American communities.

12

37. Upon information and belief, Defendants operated under the

13

principles set forth in the revised Mukasey Guidelines and DIOGs even before the

14

Attorney General formally issued them. For instance, a 2010 report by the

15

Department of Justice Inspector General revealed that from 2002 to 2006 the FBI

16

engaged in a number of investigations of domestic advocacy groups based on

17

"factually weak" or "speculative" predication. 19 The Inspector General (IG)

18

determined many of the investigations were opened based upon the FBI agents'

19

mere speculation that the individuals or groups might commit some federal crime

20

in the future. The IG determined that most of these investigations did not violate

21

the 2002 Attorney General's Guidelines in effect at the time because all that was

22

required to initiate a preliminary inquiry was "information indicating the

23

24

18 Robert Mueller, Speech to the International Association of Chiefs of Police, San

25

Diego, CA California, Nov. 10, 2008, at: http://www.fbi.gov/news/speeches/using-

intelligence-to-protect-our-communities

26

19 Department of Justice Inspector General Review of FBI's Investigations of

27

Certain Advocacy Groups (Sept 201 0):

http://www.justice.gov/oig/specialls1009r.pdf

28

- 12-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 15 of 78 Page ID #:15

1

possibility of a federal crime," which illustrated "the broad scope of the FBI's

2

authority under the Attorney General's Guidelines to open preliminary inquiries

3

based on extremely limited information, including information about the First

4

Amendment expressions of subjects."20 Moreover, the IG noted that while the

5

FBI's collection and retention of First Amendment material in these cases often

6

violated the 2002 Guidelines, it would not have violated the revised 2008

7

Guidelines: "Therefore, some of the violations of policy we found in this review

8

would not be violations if they occurred today."21 Additionally, a 2006 New York

9

Times report indicated that FBI Associate Executive Assistant Director Phil Mudd

10 was "pitching" a vague domestic intelligence program called "Domain

11

Management," which vaguely implied "ethnic targeting."22

12

FBI Investigation of Muslims in Orange County, California

13

38. Approximately 500,000 Muslims live in Southern California, more

14

than 120,000 of them in Orange County, making the area home to the second-

IS

largest population of Muslims in the United States.

16

39. The FBI has surveilled Muslims in Southern California and Orange

17 County for at least several years.

18

40. In about late 2001 or 2002, the FBI approached at least one Muslim

19

leader asking who the Muslim leaders in the Southern California area are and for a

20

list of mosques.

21

41. In May 2006, Pat Rose, a supervisor of the FBI's Orange County

22

counterterrorism operations, spoke to the Pacific Club in Irvine about the FBI's

23

counterterrorism efforts. There, she stated that "[t]here are a lot of individuals of

24

25

20 IG report p. 87. 21 IG report p. 189.

26

22 Scott Shane and Lowell Bergman, "FBI Struggling to Reinvent Itself to Fight

27

Terror," NY Times, (Oct. 10, 2006), at:

http://www.nytimes.com/2006/l 0/1 0/us/1 Ofbi.html?pagewanted=1& r= 1

28

- 13 -

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 16 of 78 Page ID #:16

1

interest right here in Orange County."23 She described recent efforts the FBI had

2

taken in the region: planting bugs and closed-circuit TV cameras, examining

3

computer use and email, and establishing units on both foreigners and domestic

4

suspects. She indicated that the FBI frequently received calls from people who

5

wanted to tell them about situations like a Muslim neighbor who is changing his

6

license plates or someone who has an apartment with only a mattress and five

7

computers, stating, "I can't tell you how many" tips like that paid off. When asked

8

whether citizens should be worried about activist Muslim students at University of

9

California at Irvine, Rose characterized that as a "tough question," but indicated

10 the FBI was aware of large numbers of Muslim students at UCI and the University

11

of Southern California. "We live in Irvine. I can't tell you how many subjects'

12 names come up, and they live right down the street from me," she stated. "I think

13

we need to be concerned with everybody, including our next-door neighbor."

14

42. In 2006 and 2007, authorities arrested reserve officers who worked at

15 the Strategic Technical Operations Center, an intelligence unit at Camp Pendleton,

16

for stealing classified intelligence documents and providing them to local law

17

enforcement. According to reports, the theft ring had operated since 200 1, and the

18

documents seized from the participants included more than 100 FBI and Defense

19 Department files, including documents establishing the existence of programs to

20

surveil Muslim communities and mosques in Southern California.24

21

43. Documents obtained by the ACLU of Southern California via the

22

23

23 Frank Mickadeit, Feds warn O.C. ofterror lurking (down the street', THE

24

ORANGE COUNTY REGISTER (May 25, 2005), available at

25

http://www.ocregister.com/news/fbi-194882-county-orange.html (last visited Feb.

10,2011).

26

24 Rick Rogers, Records detail security failure in base file theft, SAN DIEGO UNION-

27

TRIBUNE (May 22, 2008), available at http://www.signonsandiego.com/

uniontrib/20080522/news 1n22theft.html.

28

- 14-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 17 of 78 Page ID #:17

1

Freedom of Information Act show that the FBI has collected information about the

2

membership of the Shura Council (an association of mosques in the Southern

3

California area), as well as information about activities or events organized at or by

4

mosques or Muslim organizations - including individuals handing out flyers for

5

fundraising, events on political issues such as the war in Iraq or immigration

6

reform, and a wide variety of fundraising efforts.

7

44. The FBI has sought and continues to seek interviews of hundreds of

8

people in the Southern California Muslim community, often by sending FBI agents

9

to appear unannounced at the homes or workplaces of people to request an

10

interview. During these interviews, FBI agents have often questioned interviewees

11

about religious practices that have no discernible relationship to criminal activity,

12 such as what mosque interviewees attend, how many times a day they pray, who

13

the imam of their mosque is, or what they think of particular religious scholars.

14

Monteilh's Role in the FBI's Investigation of Muslims

15

45. In the face of substantial evidence of the FBI's particular focus on

16

investigating Muslims, in June 2006, Los Angeles FBI Assistant Director Stephen

17

Tidwell attended a forum for the Muslim community at ICOI, where he assured an

18

audience of about two hundred people that the FBI would enter mosques only

19 openly to outreach to the community and would not send covert informants into

20

mosques for the purpose of monitoring the Muslim community.25

21

46. At some time prior to July 2006, the FBI hired Craig Monteilh to

22

23

25 At some point during the spring of 2007, Agents Armstrong and Allen told

Monteilh that the Assistant Director in Charge of the FBI's Los Angeles Field

24

Office had told the Muslim community that there would be no undercover

25

informants placed in mosques at a meeting held only about a month or so before

Monteilh had publicly "converted," on their instructions, at the ICOI mosque.

26

They told him that at the time Tidwell made this statement, they had already been

27

looking for someone to send into the mosques, and that Tidwell had approved

recruitment of an informant.

28

- 15-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 18 of 78 Page ID #:18

1

become a paid informant for them to covertly gather information about Muslims in

2

the Irvine area.

3

47. In about July 2006, Monteilh requested a meeting with the imam of

4

the Islamic Center of Irvine ("ICOI"). Monteilh told the imam that he was of

5

French and Syrian descent, and that he wanted to embrace his roots by formally

6

converting to Islam. The following Friday, Monteilh attended the jummah prayer

7

(the Friday afternoon prayer that is the most important service of the week), where

8

he went before the congregation of hundreds and made a public declaration of his

9

Muslim faith. This declaration, known as shahadah, is one of the five pillars of

10

Islam. After this, Monteilh began going to ICOI on a daily basis, often attending

11

multiple prayers a day. About a week later, he began using the Muslim name

12 Farouk al-Aziz.

13

48. After taking shahadah, Monteilh attended prayers at ICOI on a daily

14

basis. He attended prayers at mosque multiple times per day, and was often

15

waiting for the mosque to open before dawn prayers at about 5 a.m. He also

16

attended classes and special events. He primarily attended ICOI, but also went

17

with some regularity to about five of the other largest mosques in Orange County.

18

49. Congregants at ICOI generally welcomed Monteilh. People

19

introduced themselves, spoke with him about his conversion and their faith, and

20

offered to help him learn about Islam and Muslims in America. Various

21

congregants offered help by buying him books on Islam, talked with him about the

22

tenets of the religion, and showed him the movements of prayers. Congregants

23

invited him to have meals or tea outside of the mosque to help welcome him to the

24

mosque's community and discuss questions he might have.

25

50. After several months, Monteilh began wearing traditional Muslim

26

robes and skull caps both at mosque and in public, in place of his "western"

27 clothes.

28

51. After Monteilh had attended ICOI for some time, Muslim community

- 16-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 19 of 78 Page ID #:19

1

leaders began to hear concerns voiced by the congregants about Monteilh's

2

behavior. Monteilh engaged people in conversations in which he aggressively

3

probed their views on religion and American foreign policy. Soon leaders began

4

hearing that he was asking people's opinions onjihad and its meaning in Islam,

5

and that he was resisting their claims that Islam did not condone terrorism.

6

52. Among the many people Monteilh met during his time as an FBI

7

informant were Plaintiffs Fazaga, Malik, and AbdelRahim.

8

Plaintiff Sheikh Yassir Fazaga

9

53. Plaintiff Sheikh Yassir Fazaga is a thirty-eight year-old U.S. citizen

10

born in Eritrea, who has lived here since he was a teenager. He attended high

11

school in Orange County. Sheikh Fazaga has an undergraduate degree in Islamic

12

Studies from the Institute of Islamic and Arabic Sciences in Virginia and a masters

13

degree in marriage and family counseling from the California State University of

14

Long Beach, and has taken coursework toward a masters degree in Christian

15

Theology at Loyola Marymount University. From about 1998 to the present,

16

Sheikh Fazaga has served as an imam of the Orange County Islamic Foundation

17

(OCIF), a mosque in Mission Viejo, California. His duties there have included

18

directing the religious affairs of the mosque, leading prayer, and conducting

19

educational, spiritual, and recreational activities for the entire mosque community

20

and its youth.

21

54. Sheikh Fazaga earned a national reputation for his contemporary

22

American teaching of Islam. He has spoken at numerous conferences, colleges,

23

and other fora both in the United States and abroad on the topics of Islam and the

24

American Muslim. In 2007, he traveled to Romania at the invitation and expense

25

of the U.S. State Department to speak on terrorism, radicalism and extremism.

26

He has also been interviewed for print, television and radio media, including for

27

NBC's Today show on spirituality in America and for a New York Times article

28

on American imams in which he was featured. See Neil MacFarquhar, A

- 17-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 20 of 78 Page ID #:20

1

Growing Demand for the Rare American Imam, N.Y. Times (June 1, 2007).

2

55. Over the years, Sheikh Fazaga's mosque conducted a number of

3

events in conjunction with various other mosques in the area, including the Islamic

4

Center of Irvine. Sheikh Fazaga was, and still is, concerned about the erosion of

5

civil rights for people in the Muslim community, and he often took actions to

6

advocate on behalf of that issue.

7

56. On one occasion in early 2006 he attended one such event, which

8

Defendant Stephen Tidwell, Assistant Director in Charge of the Los Angeles FBI

9

Field Office, also attended. At the event, Fazaga asked questions to Tidwell

1 0

concerning the FBI's use of informants in mosques.

11

57. Shortly afterward, Sheikh Fazaga came into contact with Craig

12

Monteilh, because Monteilh came to attend prayers and other events at his mosque,

13

OCIF, starting in approximately 2006.

14

58. Some time after Monteilh began attending his mosque, Sheikh Fazaga

15

hosted a famous Islamic speaker named Yusuf Estes at his mosque. Estes is a

16

former National Muslim Chaplain for the United States Bureau of Prisons, and was

17

a Delegate to the United Nations World Peace Conference for Religious Leaders

18

several years before being invited to speak at the OCIF.

19

59. A number of Sheikh Fazaga's congregants, including Monteilh,

20

attended the lecture.

21

60. Several months after Monteilh first began attending events at OCIF,

22

another member of the OCIF community formally introduced Fazaga to Monteilh.

23

61. After Monteilh's role as an FBI informant became publicly known in

24

February 2009, a number of Sheikh Fazaga's congregants expressed their dismay

25

to him, because Monteilh had spent a considerable amount of time at the OCIF.

26

62. Sheikh Fazaga had to spend considerable time counseling his

27

congregants who were afraid that they were being targeted for FBI surveillance

28

because of their faith. He often conducted this counseling away from the mosque

- 18 -

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 21 of 78 Page ID #:21

1

and in person, rather than over the telephone, because of his congregants' fear of

2

surveillance.

3

63. Sheikh Fazaga also observed the trust within and cohesion of his

4

congregation, and of other Muslim communities in Southern California, to be

5

significantly damaged, and that this damage directly undermined the Islamic

6

practice ofjama 'ah, or worship in a congregation. In part because of this, he

7

devoted two whole sermons to addressing the fears of the congregation about

8

surveillance, rather than addressing religious subjects.

9

Plaintiff Ali Uddin Malik

10

64. Plaintiff Malik grew up in Orange County, California. When Malik

11 was growing up, his family were strong supporters of the Republican Party. Malik

12 started a young Republicans club at his high school. During high school, Malik

13 aspired to work for the U.S. State Department or elsewhere in government.

14

65. Plaintiff Malik attended the University of California, Irvine ("UCI")

15 from about 2007 to 2009. While at Irvine, Malik co-founded the Olive Tree

16 Initiative, a peace-building program through which a culturally and religiously

17 diverse group of UCI students take joint factfinding trips to Israel and Palestine to

18 better understand the Israel-Palestine conflict and report on their findings to the

19 UCI community. Malik and the other founders were recognized for their work

20 with the University of California President's Award for Outstanding Student

21

Leadership, UCI Chancellor's Living Our Values Award, and recognition by the

22 Orange County Human Relations Commission and the U.S. State Department.

23

66. When Malik was about twenty years old, he developed an interest in

24 religion. His family had always attended mosque, but he started attending more

25 regularly and trying to study Islam with more seriousness. In about summer 2006,

26 he attended a six-week summer course on Islam at Dar al-Mustafa, a seminary in

27 Yemen. Malik also began wearing traditional robes and head covering when he

28 went to the mosque to pray. He also grew a full, long beard in a traditional

- 19-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 22 of 78 Page ID #:22

1

fashion. Malik found that wearing his clothes and beard in this way helped serve

2

as a reminder of his faith.

3

67. Plaintiff Malik attended ICOI and was present when Monteilh took

4

shahadah in about July 2006. Plaintiff Malik, along with many other congregants,

5

approached Monteilh after he took shahadah, offering his well-wishes and

6

assistance.

7

68. In about August 2006, the imam at ICOI asked Plaintiff Malik to

8

teach Monteilh how to pray and to guide him through the basics of Islam.

9

69. At the imam's request, Plaintiff Malik approached Monteilh. Malik

10

talked with Monteilh about the basics of Islam, including the basic tenets, how to

11

pray, and the development of faith. Monteilh asked for Malik's cell phone number

12

and email address, which Malik provided. He tried to offer Monteilh support and

13

welcome him in the community, and talked about inviting him over to his family's

14

house for dinner.

15

70. To help Monteilh learn about Islam, Plaintiff Malik gave him a very

16 basic book on the religion. The book is commonly used to teach Sunday school

17

classes to children, and Malik knew that his father had taught Sunday school and

18

had used the same book.

19

71. Monteilh talked frequently with Malik at the mosque. He also

20

suggested that they talk at a nearby gym, which they did in part because Monteilh

21

worked out there. Shortly after their meeting, Monteilh began asking Malik things

22 that made Malik uncomfortable. At one point Monteilh asked Plaintiff Malik what

23

would happen if someone went up to the imam at ICOI and told him they wanted

24

to blow themselves up. Plaintiff Malik replied that the imam would think this

25

person was crazy. Monteilh persisted, and asked Plaintiff Malik if there were other

26

imams in the area that would respond to someone who wanted to blow themselves

27

up. Plaintiff Malik told Monteilh that there are no such imams or mosques in

28

Southern California as far as he knew.

-20-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 23 of 78 Page ID #:23

1

72. On another occasion, Monteilh asked Malik about jihad, citing

2

specific pages in the children's book Malik had given him that mentioned jihad.

3

When Malik answered that jihad meant a "struggle," and that the concept referred

4

to the spiritual struggle to purify oneself, Monteilh pressed him about whether it

5

meant physical violence, and resisted Malik's answer that it did not.

6

73. These conversations deeply concerned Malik and made him very

7

uncomfortable around Monteilh. Malik thought that Monteilh had strange ideas

8

about Islam from movies or media, and urged him to go talk to the imam so that

9

the imam could guide him.

10

74. When Monteilh persisted in talking with Malik about his violent

11

ideas, Malik began trying to avoid Monteilh. He would avoid answering or

12

returning Monteilh's calls, although Monteilh called repeatedly. Malik also began

13

trying to go to the gym at times Monteilh did not attend.

14

75. Malik also noticed that Monteilh spoke with many others at the

15

mosque. For example, Malik occasionally saw Monteilh praying near meetings of

16

a youth group Malik attended in the mosque's prayer hall. Malik noticed on

17

several occasions that when Monteilh would pray near the group, he would leave

18

his belongings in the prayer hall while he went elsewhere.

19

76. Finally, Malik stopped attending the mosque altogether because

20

Monteilh was there so often. Malik also stopped attending the mosque in Tustin

21

because he heard that Monteilh had also been seen at that mosque. Malik resumed

22

attending ICOI only after Monteilh began approaching other people and speaking

23

to him less often. Even since returning to the mosque, Malik attends less often

24

than he had before he had contact with Monteilh.

25

In about spring 2007, Monteilh asked Malik about studying Islam abroad.

26

Malik suggested that Monteilh look into the seminary where Malik had studied,

27

Dar al-Mustafa, which Malik had enjoyed very much.

28

- 21 -

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 24 of 78 Page ID #:24

1

Plaintiff Yasser AbdelRahim

2

78. Plaintiff AbdelRahim was another victim ofMonteilh's dragnet

3

surveillance of Muslims in Irvine. AbdelRahim started attending ICOI in about

4

2005. Shortly afterwards, he rented a room in a large house where a friend he met

5

through the mosque lived. Over the next few months, two other mutual friends

6

from ICOI, and AbdelRahim's brother, moved into the house as other roommates

7

left. All five of the housemates were, like AbdelRahim, of Egyptian origin.

8

79. In about July 2006, one of AbdelRahim's roommates told him about a

9

guy who had taken shahadah at the mosque. The following Saturday, they saw

10

Monteilh and introduced themselves, offering to help him learn about Islam if he

11

had any questions. Monteilh said that he appreciated it and took their phone

12

numbers.

13

80. Shortly afterward, Monteilh called AbdelRahim and began socializing

14

with AbdelRahim and his roommates. They talked, went out to get coffee, and

15 soon AbdelRahim invited Monteilh to their house for iftar (a meal eaten during

16

Ramadan). Monteilh began to spend time with them at their house watching TV or

17

playing X-box. AbdelRahim and his roommates also tried to help Monteilh feel

18

welcome by introducing him to other people in the Muslim community.

19

81. Initially, Monteilh talked with AbdelRahim and his roommates about

20

a variety of innocuous topics - not only about Islam, but about politics, world

21

affairs, movies, and sports. At some point, however, Monteilh began asking

22

questions about jihad, again with a focus on violence. AbdelRahim found this

23

odd, and responded that Monteilh should not concern himself with that, but

24

instead should concentrate on developing his faith, and should talk to the imam at

25

ICOI if he had questions about the meaning ofjihad. However, Monteilh

26

persisted in raising the subject. AbdelRahim eventually became worried that

27

Monteilh had asked him several times about jihad, particularly when he heard

28

from several of his friends at the mosque that Monteilh had made similar inquiries

-22-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 25 of 78 Page ID #:25

1

with them. Abde1Rahim also noticed that Monteilh guided conversations to

2

political subjects like the wars in Iraq and Afghanistan, and would say

3

inflammatory things that seemed aimed at eliciting agreement or angry responses

4

from others.

5

82. Shortly afterward, a friend of AbdelRahim reported to him that

6

Monteilh had asked the friend to coffee to discuss a personal issue, but then

7

started asking particularly pointed questions about jihad. Upon hearing this,

8

AbdelRahim confronted Monteilh. AbdelRahim told Monteilh that if someone

9

was teaching him this view ofjihad, then he needed to find another teacher.

10

83. After this conversation, AbdelRahim stopped speaking with Monteilh

11

or returning his calls. Over the next several months, AbdelRahim noticed that

12 Monteilh was spending time with different people at the mosque, and AbdelRahim

13 warned a few of them about his concerns regarding Monteilh.

14 The FBI's "Dragnet" Approach

15

84. The interactions between Monteilh and Plaintiffs Fazaga, Malik, and

16 AbdelRahim were part of a broader pattern of dragnet surveillance that Monteilh

17 engaged in at the behest ofhis FBI handlers. Two FBI Special Agents instructed

18 Monteilh to gather information on Muslims in general, and instructed him to adopt

19 strategies of information-gathering and surveillance that ensured that he would

20 obtain that information in an indiscriminate manner, such that Plaintiffs and

21

numerous other people were surveilled solely due to their religion. They also

22 provided Monteilh with the tools needed to conduct this indiscriminate

23 surveillance, including sophisticated audio and video recording devices. Again,

24 their instructions ensured that the surveillance tools would target people solely due

25 to their religion.

26

85. Monteilh's handlers at the FBI were FBI Special Agent Kevin

27 Armstrong and FBI Special Agent Paul Allen. Agents Armstrong and Allen

28 supervised all ofMonteilh's work with the FBI. The FBI paid Monteilh for the

- 23-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 26 of 78 Page ID #:26

1

duration of his work for Agents Armstrong and Allen, in amounts ranging from

2

about $6,000 to over $11,000 per month.

3

86. Agents Armstrong and Allen told Monteilh that the FBI used the

4

name "Operation Flex" for the surveillance program that used him, and used that

5

term repeatedly. Agents Armstrong and Allen told him that the name referenced

6

him, since he operated under the cover of a fitness consultant. But they also told

7

Monteilh that Operation Flex was a broader surveillance program that went beyond

8

just his work.

9

87. The central feature of the FBI agents' instructions to Monteilh was

10

their directive that he gather information on Muslims, without any further

11

specification. Agents Armstrong and Allen did not limit Monteilh to specific

12

targets on which they wanted information. On the contrary, they repeatedly made

13

clear that they were interested simply in Muslims. To the extent they differentiated

14

within that group, they held a heightened interest in Muslims who were particularly

15

religious.

16

88. When Agents Armstrong and Allen first sent Monteilh to meet the

17

imam at ICOI and began infiltrating the Muslim community, they gave him no

18

specific targets, but instead told him to gather as much information on as many

19

people in the Muslim community as possible. Agent Allen told Monteilh, "We

20

want to get as many files on this community as possible." Agents Armstrong and

21

Allen told Monteilh that the United States was five to ten years behind Europe in

22

the extent of Islamic presence, and that they needed to build files on as many

23

individuals as possible so that when things started to happen, they would know

24

where to go. They said they were building files in areas with the biggest

25

concentrations of Muslim Americans -New York; the Dearborn, Michigan area;

26

and the Orange County/Los Angeles area.

27

89. In addition to information about the membership of each mosque,

28

Agents Armstrong and Allen instructed Monteilh to get the names of all board

-24-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 27 of 78 Page ID #:27

1

members, imams, people who taught classes at the mosques, and other leadership

2

figures within the mosques.

3

90. Over the course of the investigation, Agents Armstrong and Allen sent

4

Monteilh to about ten mosques to conduct surveillance and audio recording in each

5

one. Monteilh spent the most time at ICOI, which he attended daily, but spent

6

significant time at other mosques, including the Orange County Islamic Foundation

7

mosque in Mission Viejo, Durul Falah in Tustin, Omar al-Farouq mosque in

8

Anaheim, Islamic Society of Orange County in Garden Grove, Al-Fatiha in the

9

West Covina/Azusa area, the mosque in Lomita, and King Fahd mosque in Culver

10 City. For about five or six months Monteilh went at least once a week to each of

11 these mosques, and would go to as many as four different mosques in a day to meet

12 with and talk to people, if not to pray.

13

91. Agents Armstrong and Allen initially told Monteilh he would make

14 his first contact with the community by attending services at a mosque in Anaheim,

15 but then instructed him to attend ICOI instead because it was closer to where he

16 lived, so he could spend more time there.

1 7

92. Agents Armstrong and Allen also informed Monteilh that the

18 surveillance program was itself spread indiscriminately across the area's mosques.

19 Electronic surveillance equipment was installed in at least eight area mosques

20 including ICOI, and mosques in Tustin, Mission Viejo, Culver City, Lomita, West

21

Covina, and Upland. They told him at one point that they could get in a lot of

22 trouble if people found out what surveillance they had in the mosques, which

23 Monteilh understood to mean that they did not have warrants. Nonetheless, Agent

24 Armstrong told Monteilh that the FBI had every mosque in the area under

25 surveillance- including both the ones he went to and the ones he didn't.

26

93. Apart from the electronic surveillance program, Agents Armstrong

27 and Allen also directed their surveillance at people on the basis of their religion by

28 instructing Monteilh to look for and identify to them people with certain religious

-25-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 28 of 78 Page ID #:28

1

backgrounds or traits, such as anyone who studied.fiqh (a strand of Islamic law

2

concerning morals and etiquette), who was an imam or sheikh; who went on Hajj;

3

who played a leadership role at a mosque or in the Muslim community; who

4

expressed sympathies to mujahideen; who was a "white" Muslim; or who went to

5

an Islamic school overseas.

6

94. Even with respect to these categories of Muslims, Monteilh's handlers

7

did not tell him to limit the information he collected to those people. Agents

8

Armstrong and Allen would occasionally instruct Monteilh to spend more time

9

with or find out more about particular people he identified, but these were always

10

people Monteilh had identified to them during the course of the operation, not

11

people who had been targeted from the outset.

12

95. Agents Armstrong and Allen also instructed Monteilh to focus on

13

Muslim youth by keeping an eye out for people who tended to attract young

14

Muslims. They instructed him to identify and gather information on such people.

15

For example, Monteilh told them about a popular youth group on Tuesdays at ICOI

16

run by the imam. Students from the Muslim Student Union at the University of

17

California, Irvine ("UCI") would attend. On many occasions, Monteilh recorded

18

the youth group meetings at ICOI by leaving his possessions, including the

19

recording key fob, near where the group met in the prayer hall so that all of their

20

discussions could be recorded. Monteilh did this by going into the prayer hall

21

during their meetings to pray, and then leaving behind his possessions as if he had

22

forgotten them or just chosen to leave them there while he did other things.

23

Monteilh would go to another part of the mosque or the courtyard, and return

24

sometime later to collect his things. Monteilh told his handlers he did this in his

25

written reports. His handlers never instructed him to stop this practice, and instead

26

repeatedly discussed with him the contents of the recordings obtained in this

27

manner.

28

The FBI's Surveillance Strategies

-26-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 29 of 78 Page ID #:29

1

96. The FBI agents instructed Monteilh to engage in a number of

2

surveillance strategies, all of which served to gather information on Muslims in an

3

indiscriminate manner.

4

97. After Monteilh agreed to work as a confidential informant and

5

underwent some training under the supervision Agents Armstrong and Allen,

6

Agents Armstrong and Allen instructed him to make the appointment to see the

7

imam at the ICOI. Once Monteilh had taken shahadah and began attending both

8

ICOI and other mosques, Agents Armstrong and Allen instructed him to gather

9

information on the Muslims at the mosques.

10

98. Agents Armstrong and Allen instructed Monteilh to obtain

11

information through various methods. They told him to take every opportunity to

12

meet people, get their contact information, meet them privately to get to know

13

them, find out their background, find out their religious and political views, and get

14

any information about them that he could to pass on to the FBI.

15

99. As a result, over the time he spent at ICOI and other mosques

16

Monteilh did not focus on any particular group of people, such as those who may

17

have engaged in criminal activity or even those from a particular country, but

18

instead socialized widely with different groups and individuals. ICOI is a multi-

19

lingual, multi-ethnic mosque, with separate social groups that form around

20

common language or country of origin. Monteilh surveilled people from every

21

social group regardless of their ethnic origin or dominant language.

22

100. Pursuant to his handlers' instructions, Monteilh went out of his way to

23

engage all of these different groups, even when he had no natural connection to

24 them. For example, he attended religion classes given in Arabic even when he did

25

not speak Arabic, and questioned 17 and 18 year olds about religious doctrine and

26 politics, when a stranger in his forties might be expected to ask such questions of

27

adults, not youth. Similarly, Monteilh spent significant time with a group of

28

Egyptians, a group of Pakistanis and Indians, a group from Syria and Lebanon, and

-27-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 30 of 78 Page ID #:30

1

with the younger, second-generation social groups (generally identified as

2

"Muslim Students Union," or MSU, in reference to on-campus Muslim

3

organizations). Within each group, he spoke to large numbers of people so as to

4

probe their views on religion, politics and violence, and then report them back to

5

his handlers at the FBI.

6

101. Within these groups, Monteilh tended to focus more heavily on people

7

who were more religious; people who came to the mosque only to attend Friday

8

prayers were less likely to be recipients of his attention.

9

102. Agents Armstrong and Allen also gave Monteilh a standing order to

10 gather information on Muslims' charitable giving. They instructed him to collect

11 any pamphlet or brochure at any mosque that concerned charitable donations, to

12 inquire of Muslims about which charities and Islamic schools to give to, and to

13 then pass on the names of the charities and Islamic schools to them.

14

103. Monteilh's handlers also instructed him to attend Muslim fundraising

15 events, to interact with the community and gather information, to identify people

16 who attended and who they came with, and, if there were any speakers, to record

17 what those speakers said.

18

104. Agents Armstrong and Allen also asked Monteilh to collect

19 information on the travel plans of Muslims in the community. They told him that

20 they shared this information with the Department of Homeland Security so as to be

21 able to monitor or search people during their travels.

22

105. Monteilh's handlers also instructed him to attend lectures by Muslim

23 scholars and other guest speakers. Because Monteilh' s handlers wanted to know

24 both what the lecturers said and who attended these lectures, they equipped

25 Monteilh with a video surveillance device that had a camera in a shirt button, so

26 that he could both record lectures and film attendees socializing. Monteilh also

27 collected license plate numbers from the parking lots to identify those who

28 attended.

- 28-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 31 of 78 Page ID #:31

1

106. In keeping with his handlers' orders, Monteilh also attended classes at

2

the mosque so as to obtain more information on Muslim community members. For

3

example, he attended an Arabic language class at ICOI from about December 2006

4

to March 2007. On his handlers' instructions, he obtained and provided them with

5

the lists of the individuals who attended the class. Monteilh also attended a course

6

injiqh, and obtained and provided the class list to his handlers, as per their

7

instructions.

8

107. Agents Armstrong and Allen also instructed Monteilh to attend fajr

9

(dawn) prayers, which are held about 4 a.m., or ishaa (late) prayers, which are held

10

about 9:30 p.m. Agents Armstrong and Allen told him that people who attended

11

prayers very early in the morning or late at night, and especially both, were very

12 devout and therefore more suspicious. They instructed him to obtain the names

13

and the license plate numbers of individuals who attended these prayers. Agents

14 Armstrong and Allen increased his pay when he agreed to go to fajr prayer four

15

days a week.

16

108. Agents Armstrong and Allen also instructed Monteilh to memorize

17

certain ayas and surahs (verses and chapters from the Quran) and to ask Muslims

18

about them. They said they had picked these verses because they believed them to

19

be susceptible to a "jihadist" interpretation, so that people's reactions to them

20

would help discern who was and was not a threat. They told Monteilh that

21

discussions about these verses would elicit responses that could be used to justify

22

additional surveillance measures.

23

109. Agents Armstrong and Allen also expressed interest in any Muslims

24 who followed websites that the agents believed were "jihadist," including

25

Missionlslam.com and CagePrisoners.com (a site devoted to raising awareness

26

about the detainees at Guantanamo Bay). Agent Allen told Monteilh to encourage

27

people he spoke with to go to these websites because they could document

28

people's visits to the website and use that either to pressure them to become

- 29-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 32 of 78 Page ID #:32

1

informants or to justify further surveillance on them.

2

110. Agents Armstrong and Allen also encouraged Monteilh to bring up in

3

conversation certain Muslim scholars and thinkers whom they believed were

4

extremist, so as to elicit people's views on them. The scholars they instructed him

5

to discuss included a number of Islamic scholars who, at the time, were both

6

widely popular and moderate, such as Sheikh Suhaib Webb and YusefEstes.

7

111. Monteilh also used his cover as a fitness consultant to gather

8

information on the Muslims with whom he interacted. During his time working on

9

Operation Flex, Monteilh told people in the Muslim community that he worked as

10 a fitness consultant. In about November 2006, Agent Allen instructed Monteilh to

11

start going to the gym to work out with people he met from the Muslim

12 community, in order to get close to them and obtain information about them.

13 Again, Monteilh's handlers did not limit the scope of their instructions; the

14 directive included anyone from any mosque without any specific target, for the

15 purpose of collecting as much information as possible about Muslims in the

16 community. Pursuant to these instructions, Monteilh worked out with Muslims in

17 various gyms around the Orange County area and elicited a wide variety of

18 information, including travel plans, political and religious views.

19

112. The goal ofthese conversations was to obtain compromising

20 information that his handlers could use to pressure the Muslims with whom

21

Monteilh interacted into providing information or becoming informants. Monteilh

22 recorded these conversations using the equipment on his key fob or cell phone.

23 This surveillance was so fruitful that Monteilh's handlers eventually told him they

24 were seeking approval to have him open a Muslim gym.

25

113. Agents Armstrong and Allen talked repeatedly with Monteilh about

26 obtaining new informants within the Muslim community, primarily by getting

27

information on potential informants that could be used against them if they refused

28 to inform- such as immigration issues, sexual activity, business problems, or

- 30-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 33 of 78 Page ID #:33

1

crimes like drug use. Agents Armstrong and Allen instructed Monteilh to pay

2

attention to people's problems, to talk about and record them, including marital

3

problems, business problems, and petty criminal issues. Agents Armstrong and

4

Allen on several occasions talked about different individuals that they believed

5

might be susceptible to rumors about their sexual orientation, so that they could be

6

persuaded to become informants through the threat of such rumors being started.

7

114. Agents Armstrong and Allen also often spoke with Monteilh about a

8

maxim that "everybody knows somebody." They explained that if someone is

9

from Afghanistan, that meant that they would likely have some distant member of

10 their family or acquaintance who has some connection with the Taliban. If they

11

are from Lebanon, it might be Hezbollah; if they are from Palestine, it might be

12 Hamas. By finding out what connections they might have to these terrorist groups,

13

no matter how distant, they could threaten the individuals and pressure them to

14

provide information, or could justify additional surveillance.

15

115. Agents Armstrong and Allen also instructed Monteilh to engage in

16

acts that would build his reputation as a devout Muslim who had access to black

17

market items. On one occasion, Agents Armstrong and Allen instructed Monteilh

18

to provide Vicodin to a person whose father was sick iri a foreign country. On

19

another occasion, Agent Allen instructed Monteilh to provide prescription anabolic

20

steroids to another two individuals to similarly further his credibility, which he did.

21

116. During their regular meetings with Monteilh, Agents Armstrong and

22

Allen also showed him photographs of Muslims from the community, taken from

23

many of the methods identified above (e.g. at the gym, at fajr prayer, etc.), asked

24

him to identify the people in those photographs, and then directed him to provide

25

as much information as possible about each person, including what mosque they

26

attended, their ethnicity or country of origin, the languages they spoke, the people

27

they associated with, what kind of car they drove, their occupation or whether they

28

were a student, as well as any other information Monteilh could obtain.

- 31 -

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 34 of 78 Page ID #:34

1

117. One theme ran throughout all of these different surveillance gathering

2

strategies. Agents Armstrong and Allen expressed interest in gathering

3

information only on Muslims, and they set aside any non-Muslims who were

4

identified through surveillance Monteilh performed. For example, on several

5

occasions when Agents Armstrong and Allen asked Monteilh to identify

6

individuals from photographs taken by surveillance cameras at the entrances to

7

gyms, they presented him with photographs of individuals who were not Muslim

8

- usually Latino - who Monteilh had spoken to or who had simply helped him

9

lift weights. Each time Monteilh indicated to Armstrong and Allen that the

10

individual identified was not a Muslim, they discarded the picture.

11

118. Indeed, both Agent Armstrong and Agent Allen, as well as other

12

agents, explicitly told Monteilh that Islam was a threat to America's national

13

security.

14

The FBI's Surveillance Tools

15

119. Agents Armstrong and Allen recorded information about virtually all

16

of the people with whom Monteilh interacted in several different ways - through

17

audio recording, video recording, extensive review ofMonteilh's handwritten

18

notes about all aspects of his daily interactions, and a dragnet program to obtain

19

cellphone numbers, email addresses, and information about internet usage.

20

120. Upon information and belief, virtually all ofMonteilh's interactions

21

with Muslims in the mosques were recorded by audio, video, or both. The

22

recordings were then transcribed and reviewed by officials within the FBI. Agent

23

Allen told Monteilh that there was a team transcribing all of his recorded

24 conversations.

25

121. Agents Armstrong and Allen instructed Monteilh that because of his

26

criminal background, all information he collected would have to be recorded.

27

After about September 2006, Armstrong and Allen gave Monteilh a cell phone and

28

two key fobs (which resembled the remote controls for car locks) with audio

-32-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 35 of 78 Page ID #:35

1

recording devices in them, and which Monteilh used to record all day, every

2

moment he worked undercover, regardless of whom he was meeting or what was

3

discussed.

4

122. People at ICOI noticed that Monteilh would often forget his keys, so

5

that they would be delivered to the imam's office. People joked about Monteilh

6

frequently forgetting his keys, and for having his keys out during lectures and

7

conversations, even if he had to get them out after he sat down.

8

123. In fact, Monteilh utilized the trick of leaving his keys around the

9

mosque to allow audio recording of conversations to take place even when he was

10 not present.

11

124. On several occasions, Monteilh also left the recording devices in

12 locations in mosques in the area. For example, in a large mosque in Culver City,

13 Monteilh several times attended with a friend who changed in the office from

14 business clothes to more traditional dress before they went into the mosque to pray.

15 Monteilh left his keys in the office so that the key fob would record staff and board

16 members who came in and talked, then retrieved his keys from the office when

17 they were finished in the mosque. Monteilh did this several times, and in several

18 different mosques. Agents Armstrong and Allen received the notes where

19 Monteilh said he did this but never instructed him to stop.

20

125. Monteilh's recording activity was not limited to audio. Beginning in

21

about February 2007, on numerous occasions Agents Armstrong and Allen

22 outfitted Monteilh with video surveillance equipment that recorded through a

23 camera hidden in a button in the front of his shirt, while recording audio as well.

24 Toward the end of his assignment, Agents Armstrong and Allen had equipped

25 Monteilh to use this video surveillance as often as several days per week.

26

126. Agents Armstrong and Allen instructed Monteilh to use the video

27 camera for various specific purposes, including to capture the internal layout of

28 mosques, to film basketball or soccer games to see who associated with whom, to

- 33-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 36 of 78 Page ID #:36

1

film guest lectures at mosques to see what was said and who attended, and to

2

record the interiors of people's houses. Monteilh's handlers at various times

3

instructed him to open particular doors in homes or mosques and film the room

4

behind.

5

127. Agents Armstrong and Allen also used Monteilh's activities to gather

6

telephone and cell phone numbers, email addresses, and other electronic

7

information for indiscriminate surveillance.

8

128. Agents Armstrong and Allen told Monteilh they wanted him to collect

9

contact information, particularly email addresses and phone numbers. At times,

10 they even gave Monteilh quotas to collect contact information for ten new Muslims

11

per day. Agents Armstrong and Allen told Monteilh that they monitored his email

12 and cell phones to obtain the telephone numbers and email addresses of people

13 with whom he corresponded. Agent Allen instructed him to give out his cell phone

14 number widely so that people would call him or give their cell numbers in return,

15

so that the FBI could then collect those numbers. Armstrong and Allen also

16 instructed him to email frequently with people, so that the FBI could collect their

17 email addresses. Agents Armstrong and Allen told Monteilh that they used the cell

18 phone numbers and email addresses of individuals who contacted him to obtain

19

information from those individuals' phone and email accounts, including the list of

20 people they contacted.

21

129. Agents Armstrong and Allen told Monteilh that they kept the numbers

22 and emails he collected in a database that could be monitored for international

23

calls, or cross-referenced against phone calls or emails to persons of interest who

24 were believed to be linked to terrorism. Monteilh's handlers also told him that the

25

emails could be used to determine if the person was visiting certain websites, and

26

with whom they were emailing. Monteilh joined email distribution lists for many

27

of the mosques he surveilled, and would forward messages from the mosques to

28

the FBI so they would be informed about events and bulletins, and so they would

- 34-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 37 of 78 Page ID #:37

1

have the email addresses of anybody else who received the message.

2

130. Agents Armstrong and Allen also instructed Monteilh to gather all

3

available information, including literature, on events occurring at the mosques.

4

Following these instructions, Monteilh would collect brochures on charities that

5

were distributed in the mosques, visit the mosques' libraries or book areas, collect

6

newsletters and bulletins to see what activities were going on in the mosque, and

7

collect the names of individuals who attended, as well as their cell phone numbers

8

and license plates when possible. He would record this information either

9

electronically or through a system of notes.

10

131. Agents Armstrong and Allen instructed Monteilh to compose daily

11

notes ofhis activities and the surveillance he had undertaken. These notes were

12 extensive- Agents Armstrong and Allen instructed Monteilh to "empty [his]

13 head" about what he had learned that day - so that Monteilh regularly spent an

14 hour or two each evening writing notes. After a while, these notes became so

15 voluminous that Armstrong and Allen instructed Monteilh to prepare separate

16 "supplemental notes" containing any sensitive or particularly valuable information.

17 These were all handwritten. Armstrong and Allen took these notes from Monteilh

18 when they met him twice a week.

19

132. At times, Monteilh reported to Agents Armstrong and Allen that when

20 he was left alone in a mosque office, he had looked in drawers for information.

21

Armstrong and Allen never instructed him not to do this.

22

133. Agents Armstrong and Allen were well aware that many of the

23

surveillance tools that they had given Monteilh were being used illegally. Agent

24 Armstrong once told Monteilh that while warrants were needed to conduct most

25

surveillance for criminal investigations, "National security is different. Kevin is

26 God." Agent Armstrong also told Monteilh more than once that they did not

27 always need warrants, and that even if they could not use the information in court

28 because they did not have a warrant, it was still useful to have the information. He

- 35-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 38 of 78 Page ID #:38

1

said that they could attribute the information to a confidential source if they needed

2

to.

3

134. Over the course of the fourteen months that Agents Armstrong and

4

Allen supervised Monteilh' s work as an informant in the L<]s Angeles and Orange

5

County Muslim communities, they gathered hundreds of phone numbers and

6

thousands of email addresses of Muslims. They also obtained background

7

information on hundreds of individuals, gathered hundreds of hours of video

8

recordings that captured the interiors of mosques, homes, businesses, and the

9

associations of hundreds of Muslims. They also obtained thousands of hours of

10

audio recording of conversations - both where Monteilh was and was not present

11

- as well as recordings of public discussion groups, classes, and lectures

12

occurring in mosques and at other Muslim religious and cultural events.

13

The FBI's Oversight, Supervision, and Use ofMonteilh

14

135. FBI Agents Armstrong and Allen, as well as their superiors Director

15

Tidwell, and Agents Walls and Rose, maintained extremely close oversight and

16

supervision of Monteilh. Moreover, because they made extensive use of the results

1 7

of his surveillance, they knew about the methods of surveillance he used in great

18 detail and authorized them.

19

136. From about August 2006 to October 2007, Agents Armstrong and

20

Allen met with Monteilh about twice per week for meetings to discuss their

21

assignments for him, to give him instructions, to obtain his daily notes, and to

22

either exchange his recording devices for fresh ones or upload the recordings to a

23

computer. These meetings were held in public places, outside the areas where the

24

Muslim community lived. About once per month, they met with Monteilh in a

25

room at the Anaheim Hilton Hotel, where they discussed the information he had

26

obtained and gave him instructions in greater detail.

27

137. Agents Armstrong and Allen monitored and supervised Monteilh's

28

work as an undercover informant closely. Through the daily notes they collected

- 36-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 39 of 78 Page ID #:39

1

from him and the twice-weekly meetings, Monteilh told them about virtually

2

everything he did and all the information he had obtained. They gave Monteilh

3

instructions, or "tasking orders," regularly. They gave him both standing

4

instructions on kinds of information to gather whenever possible - for example, to

5

meet and get contact information for a certain number of Muslims per day - and

6

also gave him specific instructions on information they wanted, often in response

7

to information he provided - such as, for example, instructions to get inside a

8

certain house within the week or to have lunch with a particular person two times.

9

Agents Armstrong and Allen also gave Monteilh standing orders to call one of

10

them every day, even on his days off, which Monteilh would do, apprising them on

11

the call of his day's activities.

12

138. Agents Armstrong and Allen at various times discussed with Monteilh

13

what happened to these notes. They said that their supervisors read the notes, that

14 the notes were seen in "the Beltway," that they were seen by people with "a lot of

15

authority," and that the Assistant Director in Charge of the FBI's Los Angeles field

16 office, who at that time was Stephen Tidwell, read all ofMonteilh's daily notes.

17

139. During the course of the investigation, Agents Armstrong and Allen

18

discussed with Monteilh how the information he collected was actually being used.

19

They assured him that all the information he collected was retained, and that they

20

discarded none of it. They also told him that the information was used to build

21

files on individuals: that every person he contacted- whose phone number he got,

22

who he emailed, who he identified through photographs - had an individual file

23

in which the information he gathered was retained.

24

140. On about four different occasions, during the meetings between

25

Agents Armstrong and Allen and Monteilh at the hotel room, they showed him a

26

huge photo array on a large board consisting of the photos of around two hundred

27

Muslims from the Orange County/Los Angeles area. Agents Armstrong and Allen

28

used different sets of photographs for each of these meetings, so that Monteilh saw

- 37-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 40 of 78 Page ID #:40

1

hundreds of photographs over the four meetings. They instructed him to arrange

2

the photos from the most dangerous to the least based on his knowledge and

3

experience. The entire leadership of the Islamic community were in the photos -

4

sheikhs, imams, board members, prayer leaders, leaders of civic organizations, and

5

youth groups. The process took hours. Agents Armstrong and Allen also asked

6

Monteilh to assist them in organizing the photos according to categories such as

7

financial, operative, and leadership; to divide photos into possible cells according

8

to mosques and ethnicity or nationality. The first of these meetings was in about

9

March 2007, and the last was in about September 2007.

10

141. Over the course of several conversations, Agents Armstrong and

11

Allen told Monteilh that they considered the leaders in the Muslim community-

12

board members and leadership at mosques and leaders of Muslim organizations-

13

to be potential threats, and that they regularly surveilled them and maintained more

14

detailed files of information on their background and activities.

15

142. In about early spring of2007, Agents Armstrong and Allen told

16

Monteilh that information he had provided was particularly valuable, and told him

17

he was "gold" in Los Angeles and in Washington. Agent Allen said that

18

information from the operation was followed by people "at the highest levels,"

19

and that the operation was among the ten most important intelligence

20

investigations going on in the country. In about March or April 2007, Agent Allen

21

said that he had meetings with Stephen Tidwell and one of his supervisors from

22

Washington, D.C., Joseph Billy, Jr., about the operation. Around the same time

23

period, Agent Allen flew to Washington, D.C. with his supervisor, Pat Rose, in

24

part to meet with high-level FBI officials to get approval to open a gym for

25

Muslims that would function in part as a mosque with a prayer room. Agent Allen

26

told Monteilh that approval to open the gym had been granted.

27

143. At around that time, Agents Armstrong and Allen told Monteilh that

28

information from the operation would be shared with other agencies - that

- 38-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 41 of 78 Page ID #:41

1

information obtained on people's finances or foreign assets was shared with the

2

Treasury Department, and that information about people's immigration issues

3

would be sent to immigration officials.

4

The End of the Monteilh Operation

5

144. Agents Allen and Armstrong had instructed Montei1h to ask general

6

questions about jihad from the beginning of the operation. In early 2007, they

7

instructed him to start asking more pointedly about jihad and armed conflict, then

8

to more openly suggest his own willingness to engage in violence. Pursuant to

9

these instructions, in one-on-one conversations, Monteilh began asking people

10 about violent jihad, expressing frustration over the oppression of Muslims around

11

the world, pressing them for their views, and implying that he might be willing or

12 able to take action.

13

145. In about May 2007, on instructions from his handlers, Monteilh told a

14 number of individuals that he believed it was his duty as a Muslim to take violent

15

actions, and that he had access to weapons. Many members of the Muslim

16 community at ICOI then reported these statements to community leaders, including

17

Hussam Ayloush. Ayloush both called the FBI to report the statements and

18

instructed the individuals who had heard the statements to report them to the Irvine

19

Police Department, which they did.

20

146. As a community, ICOI also brought an action for a restraining order

21

against Monteilh to bar him from the mosque. A California Superior Court granted

22

the restraining order in June 2007.

23

147. After the court granted the restraining order, Monteilh continued

24

going to other mosques for a month or two, but then disappeared from the Muslim

25

community.

26

148. At around the same time- during the summer of2007 --Agents

27

Armstrong and Allen told Monteilh that Defendant Barbara Walls, then the

28

Assistant Special Agent in Charge of the FBI's Santa Ana office, had come to

- 39-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 42 of 78 Page ID #:42

1

distrust him and did not want him working any more. They told him there was

2

significant conflict between Agent Walls and field agents over how to handle the

3

operation, and that there had been an audit team sent from Washington, D.C., to

4

examine Agent Walls' handling of one of the leads from the operation. Because of

5

this conflict and complications surrounding the restraining order, Agents

6

Armstrong and Allen told Monteilh in about September 2007 that he would be

7

going on hiatus from undercover work in the Orange County Muslim community.

8

149. During one of their final meetings with Monteilh in about October

9

2007, Agent Allen told Monteilh that although his role was over, Operation Flex

10 and the FBI's operations in Orange County and Los Angeles would continue. He

11

said that the information Monteilh had provided was a valuable foundation for the

12 FBI's continuing work.

13

150. During one of the final meetings between Agents Armstrong and

14 Allen and Monteilh, Agent Walls was also present. She warned Monteilh to stay

15

silent about the operation.

16

151. In August 2008, Monteilh returned to Irvine and contacted the Irvine

17 Police Department to voice concerns about his safety because of his role as an

18

informant. He spoke with a detective, as well as a sergeant that he recognized as

19

someone who had once escorted him when he was undercover with his handlers.

20

The sergeant knew very specific information about individuals Monteilh had

21

surveilled who he had concerns about, and told Monteilh in this meeting that he

22

worked for JTTF. He told Monteilh that several individuals he had asked him

23

about were still under surveillance. He also specifically mentioned that

24

surveillance was ongoing at gyms and at least two mosques.

25

Monteilh's Identity Revealed

26

152. On or about about February 20, 2009, a man named Ahmed Niazi was

27

arrested in Orange County and charged in federal criminal court with immigration

28

fraud for lying on his naturalization application.

-40-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 43 of 78 Page ID #:43

1

153. Niazi had met Monteilh at ICOI and had spent a significant amount of

2

time with him. Niazi had heard Monteilh's most direct statements about jihad and

3

had reported those statements to Hussam Ayloush and to the Irvine Police

4

Department.

5

154. At Niazi's bail hearing, which occurred on February 24, 2009 in

6

federal district court in Santa Ana, California, FBI Special Agent Thomas Ropel

7

testified that Niazi presented a threat to national security. Agent Ropel testified

8

that he had heard numerous recordings of conversations between Niazi and a

9

confidential informant. Agent Ropel stated that this confidential informant was the

10

man Hussam Ayloush had reported to the FBI, and that Niazi and another

11

individual had reported to the Irvine Police Department. Together, these

12 statements confirmed that the informant was Craig Monteilh, and that he had

13

recorded numerous conversations that he had while an informant.

14

155. Charges against Niazi were dismissed at the request of the United

15

States Attorney's office on about September 30, 2010.

16

156. Agent Ropel's testimony on February 24, 2009 confirmed for the first

17

time that Monteilh was a confidential informant for the FBI who had recorded

18 numerous conversations.

19

157. Prior to that testimony, Plaintiffs did not know and could not

20

reasonably have known that Monteilh was working for the FBI as an informant;

21

that the FBI and Defendants, through Monteilh, had surveilled and gathered

22

information about them from their interactions with Monteilh; and that the FBI had

23

subjected them to this surveillance because of their religion. Upon information and

24

belief, prior to February 2009, Monteilh never told anyone outside of law

25

enforcement and his immediate family that he was working as an informant for the

26 FBI.

27

158. Subsequent to Ropel's testimony, a number of different sources have

28

confirmed that Monteilh worked for the FBI, including Monteilh himself.

- 41 -

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 44 of 78 Page ID #:44

1

159. In news accounts of the investigation, Monteilh himself has stated to

2

reporters that the FBI paid him more than $170,000 over fifteen months to be an

3

undercover informant in mosques in Orange County, that "he was instructed to

4

infiltrate mosques throughout Orange [County] and two neighboring counties in

5

Southern California," that he was "ordered to randomly surveil and spy on

6

Muslims to ferret out potential terrorists," and that his handlers told him that

7

"Islam is a threat to our national security."26

8

160. Upon information and belief, on August 20, 2007, the district attorney

9

in a state criminal case against Monteilh from 2003 moved to terminate his

10

probation early. In the proceeding, the district attorney explained the basis for the

11

termination:

12

Apparently, [Monteilh] is working with F.B.I. Agent Kevin Armstrong.

He has given Agent Armstrong very, very valuable information that has

13

proven to be essential in an F.B.I. prosecution. It was Agent Armstrong

14

that contacted the head deputy and the head deputy instructed us to ask

15

for termination.27

A copy of the transcript is attached hereto as Attachment 1. 16

161. Further confirmation comes from court documents filed in a civil 17

action that Monteilh brought against the FBI and the City of Irvine. In some of 18

those documents, the City of Irvine acknowledged that while a pending criminal 19

investigation ofMonteilh was underway, members of the FBI's Orange County 20

Joint Terrorism Task Force approached members of the Irvine police force and· 21

22

23

24

26 See Jerry Markon, Tension grows between Calif. Muslims, FBI after informant

25

infiltrates mosque, WASH. PosT (Dec. 5, 2010). 27 Transcript of Proceedings held Aug. 20, 2007, Probation Termination, People v.

26

Monteilh, L.A. Sup. Ct. No. KA059040, filed in support of Motion to Set Aside

27

Conviction, Exh. I, Monteilh v. Federal Bureau ofInvestigation, Dkt. 89-9, Case

No. 10-cv-00102 JVS (RNBx) (C.D. Cal.).

28

-42-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 45 of 78 Page ID #:45

1

asked them to delay any action against Monteilh.28

2

162. In discovery served by Monteilh in that same federal lawsuit, the City

3

of Irvine admitted that it and its agents "were aware that [Monteilh] was an FBI

4

informant," and that the City of Irvine "[was] informed by the FBI that [Monteilh]

5

was an FBI informant."29

6

163. Correspondence in connection with that lawsuit provides yet more

7

evidence ofMonteilh's work as an FBI informant. Upon information and belief,

8

on June 16, 2010, Associate General Counsel for the FBI, Henry R. Felix, sent a

9

letter to Adam Krolikowsi, an attorney representing Monteilh in his civil action

10

against the FBI, in reply to a letter Krolikowski had sent the previous day. Felix's

11

June 16 letter indicated that Monteilh had signed a non-disclosure agreement with

12

the FBI on October 5, 2007. Felix noted that Krolikowsi had sent previous letters,

13

but stated that his most recent letter mentioned "Operation Flex" and that this was

14

"the first letter in which [Krolikowski] reference[d] a particular FBI operation or

15

investigation." A copy of this letter is attached hereto as Attachment 2.30

16

164. Monteilh himself confirms many of the above-described details of his

17

work as an informant, including that he worked for the FBI to infiltrate the Muslim

18

community of Southern California from about July 2006 until October 2007; that,

19

during this time, he spent about six or seven days a week posing as a Muslim

20

convert named Farouk al-Aziz; that he conducted surveillance and other

21

information-gathering on a wide variety of individuals and organizations in the

22

23

28 See Answer to Complaint of City of Irvine and Ronald Carr, Monteith v. Federal

Bureau ofInvestigation, Dkt. 23, Case No. 10-cv-00102 JVS (RNBx) (C.D. Cal.).

24

29 See Motion to Set Aside Conviction, Exh. G, Monteith v. Federal Bureau of

25

Investigation, Dkt. 89-7, Case No. 10-cv-00102 JVS (RNBx) (C.D. Cal.) (exceprts

of City of Irvine's responses to requests for admissions).

26

30 A copy of the letter was filed by Monteilh in his damages action against the FBI.

27

See Motion to Set Aside Conviction, Exh. D, Monteith v. Federal Bureau of

Investigation, Dkt. 89-4, Case No. 10-cv-00102 JVS (RNBx) (C.D. Cal.).

28

-43-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 46 of 78 Page ID #:46

1

Muslim community, solely because they were Muslim; and that he conducted

2

surveillance of Plaintiffs as alleged below.

3

Monteilh's Interactions with Sheikh Yassir Fazaga

4

165. Agents Armstrong and Allen instructed Monteilh to conduct

5

surveillance of the Orange County Islamic Foundation (OCIF) mosque in Mission

6

Viejo, California. The imam of that mosque is Plaintiff Yassir Fazaga.

7

166. Agents Armstrong and Allen told Monteilh they believed that Plaintif

8

Fazaga, the imam of OCIF, was a radical, for several reasons: They said that

9

Fazaga directed students on how to conduct demonstrations and encouraged them

10 to speak out. They said that when the FBI Assistant Director in Charge of the Los

11

Angeles Field Office, Stephen Tidwell, attended a meeting at an Orange County

12 mosque in about spring 2006, Fazaga openly pressed Tidwell about FBI informants

13

in mosques, and when Tidwell denied putting informants in mosques, Fazaga had

14

openly said he did not believe Tidwell. They also said that Fazaga was a person of

15

interest because he was a board member of "In Focus News," a prominent Muslim

16

newspaper that was vocal in speaking out against U.S. government actions that

17

negatively affected Muslims and which Agents Armstrong and Allen believed was

18

anti-American and linked to Muslim civil rights groups.

19

167. Agents Armstrong and Allen told Monteilh that OCIF was linked to

20

another mosque they were interested in, the Islamic Center of Irvine, because the

21

two mosques held joint events and jointly organized foreign trips, including the

22 hajj pilgrimage to Mecca. They referred to OCIF as a "definite hotspot."

23

168. Agents Armstrong and Allen also told Monteilh that OCIF was radical

24 because it had certain religious scholars as guest speakers whom they believed

25

were radical-particularly YusefEstes, Suhaib Webb, and a local imam, Ahmad

26

Sakr. They said that a moderate mosque would not have chosen these guest

27

speakers.

28

169. Agents Armstrong and Allen instructed Monteilh to attend the Yusef

-44-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 47 of 78 Page ID #:47

1

Estes lecture which Sheikh Fazaga's mosque hosted. They equipped him with

2

hidden video equipment that he used to video record the entire lecture, the

3

literature Estes had set out, and the people who attended.

4

170. Pursuant to Agent Armstrong and Allen's instructions, Monteilh

5

attended OCIF a number of times to conduct surveillance, including during Sheikh

6

Fazaga's sermons.

7

171. Agent Armstrong and Allen also equipped Monteilh with a video

8

camera hidden in a shirt button that he used to take video of the interior of OCIF.

9

Agents Armstrong and Allen instructed Monteilh to get a sense of the schematics

10 of the place - entrances, exits, rooms, bathrooms, locked doors, storage rooms, as

11 well as security measures and whether any security guards were armed. Agent

12 Armstrong later told Monteilh that they had used the information he gathered to

13 enter the mosque.

14

172. On the instructions of Agents Armstrong and Allen, Monteilh made

15 video recordings of an area in the back of OCIF where there were religious books

16 available for congregants to use, so that they could determine if any of the

17 literature there was extremist.

18

173. Agents Armstrong and Allen also instructed Monteilh to make

19 contacts within Sheikh Fazaga's the Mission Viejo congregation. To comply,

20 Monteilh worked out on various different occasions with about 40 of their

21

congregants, usually in groups, obtaining the email address and cell phone number

22 of anyone he worked out with and passing that information on to his handlers.

23

174. Agents Armstrong and Allen instructed Monteilh to gather additional

24 information on a few individuals within the congregation who seemed to have the

25 most direct access to Fazaga- to gather their email addresses, cell phone

26 numbers, and addresses, as well as basic background information such as their

27 occupation, whether they were married or had children, and what prayers they

28 attended. Monteilh gathered this information and passed it on to Armstrong and

-45-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 48 of 78 Page ID #:48

1

Allen.

2

175. Agents Armstrong and Allen instructed Monteilh to monitor Fazaga at

3

the prayers he conducted: to record and report on what he said, to talk with him

4

afterwards and see who else talked to him afterwards, and to note individuals who

5

appeared to be close to him. Monteilh also monitored what was said by a member

6

of the congregation who substituted for Fazaga during one of the prayers.

7

176. In about April2007, a member of the community introduced Monteilh

8

to Fazaga while he was recording with a hidden video camera. Monteilh also

9

obtained Fazaga's cell phone number and email address (not through Fazaga, but

10 through others) and passed those on to Agents Armstrong and Allen, who told him

11 they used the email addresses and telephone numbers gathered to monitor

12 communications and conduct further surveillance.

13

177. Monteilh also gave Agents Armstrong and Allen the license plate

14 numbers of cars Fazaga traveled in and the people with whom Monteilh saw him

15 associate.

16

178. Agents Armstrong and Allen instructed Monteilh that whenever he

17 saw Fazaga at another mosque or anywhere outside OCIF, he should call them and

18 let them know immediately. Monteilh did this at least once when he saw Fazaga at

19 another mosque.

20

179. On one occasion, during Friday afternoon prayer at OCIF, the mosque

21 had a booth set up to collect donations for a cause for some kind of relief for

22 Muslims abroad. Pursuant to Agents Armstrong and Allen's orders to monitor

23 donations, Monteilh stood near the booth and used the hidden video camera to

24 make video recordings of people who went up to the booth to contribute money.

25

180. After Monteilh's role as an FBI informant became publicly known in

26 February 2009, many members of the OCIF congregation were horrified to learn

27 that the man who spent so much time in their mosque was an informant. This

28 revelation significantly undermined the trust within that community, which in tum

-46-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 49 of 78 Page ID #:49

1

deterred members from worshipping as a congregation.

2

181. Since he had contact with Monteilh, Fazaga has also been subjected to

3

secondary screening and searches upon return to the U.S. from various

4

international trips, being held between 45 minutes and three hours most times he

5

travels.

6

182. Since discovering the FBI surveilled him and the mosque where he

7

serves as imam, Sheikh Fazaga believes that any of his communications in the

8

mosque and over telephones may be monitored, and indeed that he may be under

9

surveillance at any time. As an intern therapist as well as an imam, Fazaga

10

provided counseling to congregants and Muslims at the mosque as part of his

11

service to the Muslim community. Since learning of the FBI's surveillance, he no

12 longer counsels congregants at the mosque for fear that their conversations are

13

monitored and therefore the personal information shared is not confidential, which

14

has limited his capacity to provide such counseling. The constant fear of being

15

under surveillance, the scrutiny during travel, the effect on the sense of community

16

at his mosque and others, and the additional difficult in providing counseling to

17

clients have all caused Sheikh Fazaga severe and ongoing anxiety and emotional

18 distress.

19

Monteilh's Interaction with Plaintiff Ali Uddin Malik

20

183. In their early meetings with Monteilh, Agents Armstrong and Allen

21

showed Monteilh a picture of a young man who they identified as Plaintiff Ali

22

Malik. They told him Malik had been a surfer kid in Newport Beach who wore

23

dyed hair, but had travelled to Yemen to attend a religious school, and had returned

24 to the U.S. wearing traditional Muslim dress and a full beard.

25

184. Agents Armstrong and Allen told Monteilh that Malik's change in

26

behavior in embracing religion and traditional dress was highly suspicious and for

27

that reason they needed to investigate him. They also told him they were

28

suspicious of Malik because he was involved with people from the "MSU."

-47-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 50 of 78 Page ID #:50

1

("MSU" stands for "Muslim Student Union," which is the name of Muslim student

2

groups at many colleges and universities, including U.C. Irvine.) Agent Armstrong

3

told Monteilh that before he was assigned to be his handler, he had been assigned

4

to investigate the MSUs and young Muslims, including Ali Malik.

5

185. Agents Armstrong and Allen told Monteilh that the way that Malik

6

groomed his beard indicated that he was a radical.

7

186. Agents Armstrong and Allen already had information on Malik and

8

his family before they assigned Monteilh to do anything, but they told Monteilh to

9

get more information on one of his brothers; on another individual who Malik was

10 close to; on Malik's associations from the Irvine mosque, and on anyone with

11

whom Malik hung out at the gym.

12

187. Agents Armstrong and Allen said that they knew Malik had been to an

13

Islamic religious school in Yemen, and that he had been blocked from entering

14 Saudi Arabia after he had traveled to Yemen. They tasked Monteilh with finding

15

out what school he had been to and why he had been denied entry into Saudi

16

Arabia.

17

188. In about April2007, Agents Armstrong and Allen began discussing

18

the possibility of sending Monteilh abroad to study Islam and Arabic. When

19

Monteilh started asking about a school to go to, Malik told him that he had

20

attended Dar al-Mustafa in Tarim, in Yemen. Monteilh reported this information

21

to Agents Armstrong and Allen.

22

189. On several occasions, Monteilh used the key fob or cell phone

23

recording devices provided by Agents Armstrong and Allen to record groups of

24

young Muslims talking in the prayer hall, particularly after ishaa prayer. On these

25

occasions, Monteilh greeted people, left his things - including the recording

26

device - near to where they were talking, then went to another part of the mosque

27

or a different part of the prayer hall to pray so that the recording device would

28

capture their conversation when he was gone. Several times Ali Malik was one of

-48-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 51 of 78 Page ID #:51

1

the people in the group Monteilh recorded. Monteilh recorded these conversations

2

when he was not present, then gave notes that detailed the people he saw there to

3

Agents Armstrong and Allen, so they would be able to identify the voices. Agents

4

Armstrong and Allen received notes in which Montei1h said that he had recorded

5

these conversations without being physically present, and never told him not to do

6

this.

7

190. Malik more than once told Monteilh that he heard Monteilh was going

8

regularly to fajr, or early morning prayer. Malik commended Monteilh on his

9

commitment- he said that he had gotten into the routine of attendingfajr prayers

10 daily when he had been studying abroad, but that, regrettably, it was easy to fall

11

into attending prayers only when it was convenient. He stated that he wanted to

12 get back to that kind of regimen. Agents Armstrong and Allen told Monteilh this

13 was significant information that indicated Malik was returning to extremist beliefs,

14 which justified further surveillance.

15

191. Agents Armstrong and Allen received significant information on

16 Malik. In addition to the surveillance described above, including recordings of all

17 Monteilh's conversations with Malik, they several times showed Monteilh photos

18 with people they said had seen with Malik and asked him to identify them. The

19 pictures sometimes had Malik in them.

20

192. Since his contact with Monteilh, Malik has repeatedly been subjected

21

to extended interviews with FBI and Customs upon re-entering the country,

22 including one interview that lasted for several hours, resulted in him missing a

23

connecting flight, and consequently missing a summer school class that made him

24 lose credit for the class and required that he push his college graduation back by

25

several months at considerable financial expense.

26

193. Also as a result of the FBI's surveillance, Malik altered his religious

27 practices. Because he understood he was targeted because of his outwardly

28 religious appearance, adherence to Islamic ritual practice, and involvement with

-49-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 52 of 78 Page ID #:52

1

the mosque and Muslim Student Union at UCI, Malik trimmed his beard, does not

2

regularly wear a skull cap any longer, and stopped attending the mosque regularly

3

for an extended period of time. To this day, he attends mosque less frequently than

4

he did before having contact with Monteilh because of his fear of being monitored

5

at mosque and the effect that this fear has on his sense of the mosque as a place of

6

peace and spiritual refuge. This interference with his religious practice results

7

from Defendants' actions and has caused Malik severe and ongoing anxiety and

8

emotional distress.

9

194. Malik also believes his reputation in the community to have been

10 damaged. He believes that because of his association with Monteilh, people have

11

also assumed that he is a government informant and act as if they are suspicious of

12 him. He believes that he does not have the full trust of the Muslim community.

13 This belief that others suspect him because of Defendants' actions has caused

14 Malik severe and ongoing anxiety and emotional distress.

15

195. Since discovering the FBI surveilled him and the mosque he attended,

16 Malik believes that any of his communications in the mosque and over telephones

17 may be monitored, and indeed that he may be under surveillance at any time. He

18 curtails phone and email conversations with his friends and family because of his

19 belief that they may be monitored. He also suspects that any newcomer to a

20 mosque may be an FBI informant, and has refused to be as welcoming to

21

newcomers as he believes his religion requires. This constant fear of being under

22

surveillance because of Defendants' acts has caused Malik severe and ongoing

23 anxiety and emotional distress.

24

Monteilh's Interaction with Yasser AbdelRahim

25

196. A few weeks after Monteilh took shahadah at ICOI, a group of young

26 men approached him at mosque, said they were impressed that he attended mosque

27 so regularly and invited him to socialize with them at their house. Agents

28

Armstrong and Allen told Monteilh that the men's home was already under

-50-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 53 of 78 Page ID #:53

1

surveillance because it was shared by five young, unmarried Muslim Egyptian men

2

with different skills and backgrounds- including a computer analyst, a

3

pharmacist, an accountant, and one who handled logistics - and that for that

4

reason they believed they might be a Muslim Brotherhood cell.

5

197. A few days after this invitation, Monteilh told Agents Armstrong and

6

Allen that one of the young men who lived at the house, Plaintiff Yasser Abdel

7

AbdelRahim, was a person who seemed to attract and have influence with young

8

Muslims. Agents Armstrong and Allen told him they thought AbdelRahim was the

9

leader of the cell, and that he should spend time at their house, and with

10

AbdelRahim in particular, and gather as much information as he could. Monteilh

11

did so, and gave recordings of all the conversations he had with AbdelRahim and

12 the other members of the house to Agents Armstrong and Allen, along with notes

13 about his observations.

14

198. Agents Armstrong and Allen told Monteilh to get into every room in

15

AbdelRahim's house to see what was in there, and include that information in his

16

reports. Later, in about February or March of 2007, Armstrong and Allen

17

equipped Monteilh with a video camera hidden in a shirt button and instructed him

18

to conduct video surveillance of the layout and contents of the house, which he did.

19

199. Shortly after first meeting Monteilh, AbdelRahim and one of his

20

roommates bought Monteilh some books on Islam, and later asked he what thought

21

of them. Some time after that, AbdelRahim agreed to meet with Monteilh to teach

22

him various prayers. Agents Armstrong and Allen expressed excitement at this,

23

and asked for the first sheet of paper on which AbdelRahim had written a prayer

24

for Monteilh to learn, telling him when they gave it back a few days later that they

25

had lifted AbdelRahim's fingerprints from it.

26

200. When Monteilh reported that AbdelRahim always led prayer in the

27

house, Agents Armstrong and Allen said that showed leadership, and confirmed

28

that the surveillance should focus on him.

-51 -

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 54 of 78 Page ID #:54

1

20 1. Pursuant to standing instructions from Agents Armstrong and Allen,

2

Montei1h gathered and provided them information about AbdelRahim's travel

3

plans, particularly when AbdelRahim was going to or from Egypt to see his family

4

or his fiance's family. After one of these trips to Egypt, AbdelRahim complained

5

that he had questioned for a long time when he re-entered the country - that he

6

expected some delay but this had been way too long. Agents Armstrong and Allen

7

told Monteith they had been responsible for that questioning.

8

202. During this time, AbdelRahim played pick-up soccer with other

9

Muslim youth. Monteilh attended some of these games and took down the license

10 plates of people who attended. On more than one occasion, he made a video

11

recording with a hidden camera Agents Armstrong and Allen provided him, in

12 order to document who was attending and socializing with one another.

13

203. After Monteith learned through conversations that AbdelRahim

14

traveled to a particular city for his job, Agents Armstrong and Allen had a

15

particular group of Muslims in that city surveilled and believed he went there to

16

report or get instructions from this group. As Agents Armstrong and Allen had

17 told Monteilh to report all travel plans, he reported AbdelRahim' s travel plans on

18

several occasions. Agents Armstrong and Allen told Monteilh that they had

19

AbdelRahim surveilled when he traveled, based on Monteith's information.

20

204. Monteilh talked to AbdelRahim about his fiancee, who lived in

21

Detroit, and her family, and transmitted what information he learned to Agents

22

Armstrong and Allen - including her email address.

23

205. On different occasions, Agents Armstrong and Allen told Monteilh

24

that the FBI had electronic listening devices in AbdelRahim's house, as well as in

25

AbdelRahim's car and phone. For example, one day, one ofMonteilh's handlers

26

called to tell him that a friend had driven up to AbdelRahim's house quickly in an

27

agitated state, and asked Monteilh to go down there to find out what was going on.

28

When Monteith asked how he knew this, he indicated they had video outside the

-52-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 55 of 78 Page ID #:55

1

house. Another time, Agents Armstrong and Allen asked him about something

2

that happened inside the house that he hadn't yet put in his notes, then told him that

3

they knew because they had audio surveillance in the home.

4

206. Agents Armstrong and Allen said that AbdelRahim was donating

5

money to a charitable organization in Egypt and that these donations had been

6

tracked by the Treasury Department. They said that these donations were not

7

unlawful, but that they could make them seem suspicious in order to threaten him

8

and pressure him to provide information and become an informant.

9

207. On many Tuesday nights, an imam from the Garden Grove mosque

10 gave Arabic language teachings at ICOI. AbdelRahim often attended. On several

11

occasions, Monteilh used recording devices provided by his handlers to record

12 these teachings and the discussions afterward by going into the prayer hall to pray

13

near the group, then leaving his things - including the recording device (disguised

14

as a key fob or cell phone) - near to where the group was talking, and then go to

15

another part of the mosque or a different part of the prayer hall to pray. The

16

recording device would capture their conversation when Monteilh was not within

17

earshot. AbdelRahim was part of the group when Monteilh recorded on several

18

occasiOns.

19

208. On instructions from Agents Armstrong and Allen, Monteilh asked

20

AbdelRahim questions about jihad and pressed him on his views about religious

21

matters and certain religious scholars (particularly Egyptian ones) in order to get

22

him to say something that might be incriminating or provide a way to pressure him

23

to provide information to the FBI. AbdelRahim told Monteilh that there was more

24

to Islam than jihad: that jihad is a personal struggle, and that to the extent that

25

there is such thing as a fighting jihad, the Quran places very strict rules that

26

prohibit harming plants or trees, infants, elderly or women, and that terrorists who

27

say they are engaged in jihad are committing murder. When Monteilh brought up

28

religious scholars Agents Armstrong and Allen had instructed him to mention, like

-53-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 56 of 78 Page ID #:56

1

Hassan al-Banna and Sayid Qutb, AbdelRahim said that he did not agree with

2

them, but thought that the Egyptian government should not have executed them.

3

209. When Monteilh was reported to the FBI by Muslim community

4

members, AbdelRahim was contacted by FBI agents and met with them to offer

5

information about Monteilh and his extremist rhetoric. Upon information and

6

belief, one of these agents was Defendant Paul Allen.

7

210. A few months later, AbdelRahim unexpectedly met the same FBI

8

agents, who were waiting for him outside the office of his chiropractor. He was

9

surprised to see them there as he had scheduled an appointment with the

10 chiropractor just an hour or so prior. They went to a coffee shop and showed him a

11

search warrant and told him that his storage unit was searched by the FBI. Two

12 days later, they met again with AbdelRahim and asked him if he knew of any

13 person engaged in any suspicious activity at the mosque or elsewhere. They asked

14 AbdelRahim if he minded contacting the agents if he came across any information

15 of anyone doing anything. AbdelRahim understood that they were asking him to

16 be an informant, and he refused. The FBI agents asked not to mention the offer to

17 anyone.

18

211. Since he had contact with Monteilh, AbdelRahim has also been

19 subjected to extensive secondary questioning and searches most of the times he has

20 returned to the U.S. from trips abroad. These interrogations and the fear that he

21 will be subjected to them when he travels have caused AbdelRahim severe anxiety

22 and emotional distress.

23

212. Since discovering the FBI surveilled him and the mosque he attended,

24 AbdelRahim believes that any of his communications in the mosque and over

25 telephones or email may be monitored, and indeed that he may be under

26 surveillance at any time. He also suspects that any newcomer to a mosque may be

27 an FBI informant, and has refused to be as welcoming to newcomers as he believes

28 his religion requires. This constant fear of being under surveillance because of

-54-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 57 of 78 Page ID #:57

1

Defendants' acts has caused AbdelRahim severe and ongoing anxiety and

2

emotional distress.

3

213. Since these incidents, AbdelRahim's confidence in the mosque as a

4

sanctuary has been ruined. He significantly decreased his attendance to mosque

5

services for fear of surveillance, and as such his donations to mosque institutions

6

also decreased. This interference with his religious practice has caused

7

AbdelRahim severe and ongoing anxiety and emotional distress.

8

CLASS ALLEGATIONS

9

214. Plaintiffs, as class representatives, bring claims for injunctive relief on

10 behalf of themselves and all similarly situated persons pursuant to Rule 23(a) and

11

(b)(2).

12

215. Plaintiffs, as class representatives, bring this action on their own

13 behalf and on behalf of the following class:

14

All individuals targeted by Defendants for surveillance or

15

information-gathering through Monteilh and Operation Flex, on

16

account of their religion, and about whom the FBI thereby gathered

17

personally identifiable information.

18

216. Numerosity. The size of the class makes a class action both necessary

19 and efficient. Plaintiffs estimate that the class consist of hundreds if not

20 throusands of current and former residents of Southern California. Members of the

21

class are ascertainable through a review of Defendants' files on Operation Flex, but

22

so numerous that joinder is impracticable.

23

217. Typicality. The claims of the Plaintiffs are typical of the claims of the

24 class as a whole. Each of the Plaintiffs was subjected to surveillance by

25 Defendants during the relevant period. As a result of Defendants' practices,

26 Defendants have discriminated against each of Plaintiffs on the basis of their

27 religion and religious practices, in violation of law. The unlawful policies and

28 practices that have operated to discriminate against the Plaintiffs are typical of the

-55-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 58 of 78 Page ID #:58

1

unlawful practices that operated to discriminate against other class members so as

2

to unlawfully target them for surveillance because oftheir religion and religious

3

practices.

4

218. Common Questions ofLaw and Fact. This case poses common

5

questions of law and fact affecting the rights of all members of the class, including,

6

but not limited to:

7

a. Whether Defendants engaged in a program of conducting

surveillance of mosques in Orange County, and the Plaintiffs

8

and class members who attended those mosques;

9

b. Whether Defendants targeted Plaintiffs and class members for

10

surveillance through Monteilh because they were Muslims or

11

because of their practice of Islam;

12

c. Whether Defendants' practice of targeting Plaintiffs and class

13

members for surveillance because they were Muslim or because of their practice of Islam constitutes impermissible religious

14

discrimination under the First Amendment;

15

d. Whether Defendants' practice of targeting Plaintiffs and class

16

members for surveillance because they were Muslim or because

of their practice of Islam violates the guarantee of equal

17

protection of the laws under the Fifth Amendment;

18

e. Whether Defendants' practice of targeting Plaintiffs and class

19

members for surveillance because they were Muslim or because

20

of their practice of Islam places a substantial burden on the

religious exercise of Plaintiffs and class members under the

21

First Amendment;

22

f. Whether Defendant FBI maintains records on Plaintiffs and

23

class members, arising out of the investigation at issue,

describing how they exercise rights guaranteed by the First

24

Amendment;

25 g. Whether the maintenance by Defendant FBI of records on

26

Plaintiffs and class members describing how they exercise

27

rights guaranteed by the First Amendment is pertinent to and

within the scope of lawful, authorized law enforcement activity;

28

-56-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 59 of 78 Page ID #:59

1

h. Whether information gathered by Defendants pursuant to

2

unlawful surveillance should be disgorged and purged from their files;

3

1. Whether Defendants conspired for the purpose of depriving

4

Plaintiffs and other class members of their rights for purposes

5

of 42 U.S.C. § 1985;

6

J. Whether and what kinds of declaratory and injunctive relief are

7

appropriate.

8

219. Adequacy ofClass Representation. Plaintiffs can adequately and

9

fairly represent the interests of the class as defined above, because their individual

10

interests are consistent with, and not antagonistic to, the interests of the class.

11

220. Adequacy ofCounsel for the Class. Counsel for Plaintiffs possess the

12

requisite resources and ability to prosecute this case as a class action and are

13

experienced civil rights attorneys who have successfully litigated other cases

14

involving similar issues.

15

221. Propriety ofClass Action Mechanism. Class certification is

16

appropriate because the prosecution of separate actions against Defendants by

17

individual class members would create a risk of inconsistent or varying

18

adjudications that would establish incompatible standards of conduct for

19

Defendants and because Defendants have acted or refused to act on grounds that

20

apply generally to the class.

21

CLAIMS FOR RELIEF

22

First Cause of Action

23

Violation of the First Amendment Establishment Clause

24

Claim under Bivens; 28 U.S.C. § 1331

25

(Against All Defendants by all Plaintiffs.)

26

222. Plaintiffs incorporate Paragraphs 1- 221 as if fully set forth herein.

27

223. As set forth above, Defendants engaged in a scheme to target

28

Plaintiffs for surveillance because of Plaintiffs' adherence to and practice of the

-57-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 60 of 78 Page ID #:60

1

religion of Islam. This scheme discriminates against Muslims, in violation of the

2

Establishment Clause of the First Amendment to the United States Constitution.

3

Second Cause of Action

4

Violation of the First Amendment Establishment Clause

5

Claim under 42 U.S.C. § 1985(3); 28 U.S.C. § 1343

6

(Against All Defendants by all Plaintiffs.)

7

224. Plaintiffs incorporate Paragraphs 1- 223 as if fully set forth herein.

8

225. As set forth above, Defendants engaged in a scheme to target

9

Plaintiffs for surveillance because of Plaintiffs' adherence to and practice of the

10 religion of Islam. This scheme discriminates against Muslims, in violation of the

11

Establishment Clause of the First Amendment to the United States Constitution.

12

226. Through their scheme, Defendants conspired, and conspired to go in

13

disguise on the premises of another, for the purpose of depriving Plaintiffs, directly

14 or indirectly, of the equal protection of the laws, and of equal privileges and

15

immunities under the laws, because of their adherence to and practice of Islam.

16

Defendants performed these acts with discriminatory animus against Muslims.

17

Third Cause of Action

18

Violation of the First Amendment Free Exercise Clause

19

Claim under Bivens; 28 U.S.C. § 1331

20

(Against All Defendants by all Plaintiffs.)

21

227. Plaintiffs incorporate Paragraphs 1-226 as if fully set forth herein.

22

228. As set forth above, Defendants engaged in a scheme to target

23

Plaintiffs for surveillance because of Plaintiffs' adherence to and practice of the

24

religion of Islam. This scheme discriminates against Muslims, in violation of the

25 Free Exercise of the First Amendment to the United States Constitution.

26

229. As set forth above, Defendants' surveillance placed a substantial

27

burden on Plaintiffs' religious exercise in their practice of Islam and is justified by

28

no legitimate government interest.

-58-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 61 of 78 Page ID #:61

1

Fourth Cause of Action

2

Violation of the First Amendment Free Exercise Clause

3

Claim under 42 U.S.C. § 1985(3); 28 U.S.C. § 1343

4

(Against All Defendants by all Plaintiffs.)

5

230. Plaintiffs incorporate Paragraphs 1-229 as if fully set forth herein.

6

231. As set forth above, Defendants engaged in a scheme to target

7

Plaintiffs for surveillance because of Plaintiffs' adherence to and practice of the

8

religion of Islam. This scheme discriminates against Muslims, in violation of the

9

Free Exercise of the First Amendment to the United States Constitution.

10

232. As set forth above, Defendants' surveillance placed a substantial

11

burden on Plaintiffs' religious exercise in their practice of Islam and is justified by

12

no legitimate government interest.

13

233. Defendants have conspired, and conspired to go in disguise on the

14

premises of another, for the purpose of depriving Plaintiffs, directly or indirectly,

15

of the equal protection of the laws, and of equal privileges and immunities under

16 the laws, because of their adherence to and practice of Islam. Defendants

17 performed these acts with discriminatory animus against Muslims.

18

Fifth Cause of Action

19

Violation of Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-l

20

(Against All Defendants by all Plaintiffs.)

21

234. Plaintiffs incorporate Paragraphs 1-233 as if fully set forth herein.

22

235. The actions of Defendants substantially burdened Plaintiffs' exercise

23

of religion, and are neither in furtherance of a compelling governmental interest

24

nor the least restrictive means of furthering any compelling governmental interest.

25

26

27

28

-59-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 62 of 78 Page ID #:62

1

Sixth Cause of Action

2

Violation of Fifth Amendment Equal Protection Clause

3

Claim under Bivens; 28 U.S.C. § 1331

4

(Against All Defendants by all Plaintiffs.)

5

236. Plaintiffs incorporate Paragraphs 1- 235 as if fully set forth herein.

6

237. As set forth above, Defendants have engaged in a scheme to target

7

Plaintiffs for surveillance because of Plaintiffs' adherence to and practice of the

8

religion of Islam. This scheme discriminates against Muslims, in violation of the

9

Equal Protection Clause of the Fifth Amendment to the United States Constitution.

1 0

Seventh Cause of Action

11

Violation of the Equal Protection Clause

12

Claim under 42 U.S.C. § 1985(3); 28 U.S.C. § 1343

13

(Against All Defendants by all Plaintiffs.)

14

238. Plaintiffs incorporate Paragraphs 1-237 as if fully set forth herein.

15

23 9. As set forth above, Defendants have engaged in a scheme to target

16 Plaintiffs for surveillance because of Plaintiffs' adherence to and practice of the

17 religion of Islam. This scheme discriminates against Muslims, in violation of the

18 Equal Protection Clause of the Fifth Amendment to the United States Constitution.

19

240. Defendants have conspired, and conspired to go in disguise on the

20 premises of another, for the purpose of depriving Plaintiffs, directly or indirectly,

21

of the equal protection of the laws, and of equal privileges and immunities under

22 the laws, because of their adherence to and practice of Islam. Defendants

23

performed these acts with discriminatory animus against Muslims.

24

Eighth Cause of Action

25

Violation of the Privacy Act, 5 U.S.C. § 552a(e)(7), (g)(1)(D)

26

(Against Defendant FBI by all Plaintiffs.)

27

241. Plaintiffs incorporate Paragraphs 1-240 as if fully set forth herein.

28

242. Defendant FBI, through Monteilh, collected and maintained records

-60-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 63 of 78 Page ID #:63

1

describing how Plaintiffs exercise their rights to free speech and free exercise of

2

religion guaranteed by the First Amendment. The maintenance of these records is

3

neither pertinent to nor within the scope of any legitimate, authorized law

4

enforcement activity.

5

243. The collection and maintenance of these records, in violation of 5

6

U.S.C. § 552a, and has had an adverse effect on Plaintiffs.

7

Ninth Cause of Action

8

Violation of the Fourth Amendment

9

Claim under Bivens; 28 U.S.C. § 1331.

10

(Against All Defendants by all Plaintiffs.)

11

244. Plaintiffs incorporate Paragraphs 1-243 as if fully set forth herein.

12

245. Defendants' actions as set forth above constitute unreasonable

13

searches in violation of the Fourth Amendment to the United States Constitution,

14

including but not limited to Defendants' actions in audio recording Plaintiffs'

15

communications without a warrant and where no party to the communication

16

consented to the recording; video recording in homes and other places where

17

Plaintiffs had a reasonable expectation of privacy against video recording; and

18

entering and planting electronic listening devices in mosques without a warrant.

19

Tenth Cause of Action

20

Violation of the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1810

21

(Against All Defendants by all Plaintiffs.)

22

246. Plaintiffs incorporate Paragraphs 1- 245 as if fully set forth herein.

23

247. Defendants, under color of law, acting through Monteilh, used

24

electronic, mechanical, and/or other surveillance devices, without a warrant, to

25

monitor Plaintiffs and their communications and/or activities, and to acquire

26

information under circumstances in which Plaintiffs had a reasonable expectation

27

of privacy and a warrant would be required for law enforcement purposes.

28

- 61 -

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 64 of 78 Page ID #:64

1

PRAYERFORRELIEF

2

Wherefore, Plaintiffs respectfully request that the Court grant the following

3

relief:

4

a. Certify a Class under Rule 23(b)(2), as described above;

5

b. Injunctive relief on behalf of Plaintiffs and all other putative class

6

members ordering Defendants to destroy or return any information

7

gathered through the unlawful surveillance program by Monteilh

8

and/or Operation Flex described above, and any information derived

9

from that unlawfully obtained information;

10

c. Compensatory and punitive damages for violations of the laws of the

11

United States and California, in an amount to be proven at trial;

12

d. Liquidated damages in an amount to be proven at trial pursuant to 50

13

U.S.C. §§ 1810(a), 1828(a);

14

e. Reasonable attorneys' fees and costs;

15

f. Any other relief as this Court deems proper and just.

16

17

Dated: February 22, 2011

Respectfully Submitted,

18

ACLU FOUNDATION OF SOUTHERN

CALIFORNIA

19

COUNCIL ON AMERICAN-ISLAMIC

20

RELATIONS, CALIFORNIA

21

HADSELL STORMER KEENY RICHARDSON

22 23

= s &RENICKLLP
By:~::;_

~6.

24

Peter Bibring

Attorneys for Plaintiffs

25

26

27

28

-62-

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 65 of 78 Page ID #:65
ATTACHMENT
1

' ';I ·C'' aseCa8s:e118-:c1v0--0c0v-300011-0C2J-JC-V-BRKNB DoDcoucmumeenntt189-9FileFdil0ed2/0222//1151 PaPgaege661ooff 758 PPagaegeIDID #:66

. '

#:1600

·...l ___ .---··~ .. ··----"-···· ··--- ,. ~-·--' ... - --~--...,.,...,..,_.. ·-~-'·· .. ... ........... ,,._............ -.-
( ( 2

3

4

5

6

7

8

SUPERIOR COURT OF THE STATE OF CALIFORNIA

9

COUNTY OF LOS ANGELES - WEST COVINA BRANCH

10 DEPARTMENT 8

HON. ABRAHAM KHAN, JUDGE

11

12 THE PEOPLE OF THE STATE OF CALIFORNIA,

'13

•. ·: •·• ·: ••.

:r.!;;o

"''"' :-"·PLAINTIFF; . .; .

14

vs.

( ! 15 CRAIG F. MONTEILH,

16

DEFENDANT.

) ) )
)
) NO~ KA059040 ) PROBATION TERMINATION
)
)
)

17

18

WEST COVINA, CALIFORNIA; AUGUST 20, 2008

19

2:40 P.M.

20

UPON THE ABOVE DATE, THE DEFENDANT NOT

21

BEING PRESENT IN COURT AND NOT REPRESENTED BY

22

COUNSEL; THE PEOPLE BEING REPRESENTED BY LINDA

23

CHILSTROM, DEPUTY DISTRICT ATTORNEY OF

24

LOS ANGELES COUNTY, THE FOLLOWING PROCEEDINGS

25

WERE HELD:

26

(DIANA WHITESEL, CSR #6287, OFFICIAL REPORTER.)

27 28

1

CaseCa8s:1e18-:c1v0--0c0v-300011-0C2J7.C! -V·-BRKNBDoDcoucmumene#nt :t118690-1F9iledFil0e2d/2022//1151 PaPgaeg6e72ooff758 PPagaegeIDID #:67

~"-· . CASE.J~_UMBER: --(:
2 CASE NAME:

KAOS9040.

_:. .. ~ :.-::·:. ··..:

PEOPLE OF THE STATE OF CALIFORNIA

3

VS. CRAIG MONTEILH

4 WEST COVINA, CALIFORNIA

AUGUST 20, 2007

5 DEPARTMENT NO. 8

HON. ABRAHAM KHAN, JUDGE

6 REPORTER:

DIANA WHITESEL, CSR NO. 6287

7 TIME:

2:40 P.M.

8 APPEARANCES:

9

(LINDA CHILSTROM, DEPUTY DISTRICT ATTORNEY

10

OF LOS ANGELES COUNTY.)

11

-000-

12

13'

THE CLERK: PEOPLE ARE GOING TO 'MOVE TO MAKE: A MbTIOI'J' TO

14 TERMINATE PROBATION.

15

THE COURT: CRAIG F. MONTEILH. KA059040.

16

MS. CHILSTROM: YOUR HONOR, I HAVE BEEN INFORMED BY

17 MR. SATO OF MY OFFICE THAT HEAD DEPUTY SCOTT CARBAUGH HAS

18 REQUESTED THAT THIS CASE -- THAT THE PROBATION IN THIS MATTER BE

19 TERMINATED.

20

THE COURT: CAN YOU GIVE ME A REASON?

21

MS. CHILSTROM: I DON'T KNOW A REASON. I WAS JUST TOLD IT

22 WAS UPON THE REQUEST OF THE HEAD DEPUTY.

23

THE COURT: I'M GOING TO CONTINUE THIS UNTIL TOMORROW

24 UNTIL YOU CAN GIVE ME A REASON. I USUALLY DON'T TERMINATE

25 PROBATION UNLESS THERE IS SOMETHING I CAN RELY ON.

26

MS. CHILSTROM: NOT A PROBLEM.

27

I TAKE IT, WE'RE WAITING FOR MR. LINDARS.

28

MAY I MAKE A QUICK CALL?

2

C.•aseCa8s:1e18-:c1v0--0c0v-300011-0C2J7JC-V-BRKNBDoDcoucmumeen#nt :t118690-2F9iledFil0e2d/2022//1151 PaPgaeg6e83ooff758 PPagaegeIDID #:68

(.I;'

2

(PAIJSF TN . .!?.RQCFEOIMGS .) ,

3

MS. CHILSTROM: YOUR HONOR, COULD THE COURT RECALL THE

4 LAST CASE?

5

THE COURT: OKAY. WE'RE STILL ON THE RECORD IN CRAIG F.

6 MONTEILH.

7

MS. CHILSTROM: YOUR HONOR, I JUST SPOKE WITH MR. SATO.

8 INITIALLY I WAS JUST TOLD THAT THE HEAD DEPUTY WANTED THE

9 PROBATION TERMINATED.

10

APPARENTLY THE DEFENDANT IS WORKING WITH F.B.I. AGENT

11 KEVIN ARMSTRONG. HE HAS GIVEN AGENT ARMSTRONG VERY, VERY

12 VALUABLE INFORMATION THAT HAS PROVEN TO BE ESSENTIAL IN AN F.B.I.
. 13 PROSECUTION.· :ti WAS AGENT ARMSTRONG THAT CbNTACTED THE HEAD '. -·

14 DEPUTY AND THE HEAD DEPUTY INSTRUCTED US TO ASK FOR TERMINATION.

(: 15

THE COURT: WELL, OKAY. I KNOW THE DEFENDANT HIMSELF WAS

16 HERE IN APRIL AND HAD REQUESTED EARLY TERMINATION. AND I BELIEVE

17 ON RECOMMENDATION OF THE DISTRICT ATTORNEY, I DENIED HI~ REQUEST.

18 AND THAT WAS BACK IN APRIL. THAT'S WHY I WANTED TO FIND OUT WHAT

19 THE REASONS WHY WERE AT THIS TIME BECAUSE IT'S ONLY BEEN FOUR

20 MONTHS AFTER.

21

BUT OTHERWISE HE'S PAID HIS FINANCIAL OBLIGATION AND

22 HE'S OTHERWISE BEEN ON PROBATION -- HOW LONG HAS HE BEEN ON?

23 IT'· S KA059040. IS THAT '03?

24

MS. CHILSTROM: IT IS '03, YOUR HONOR.

25

THE CLERK: YES, YOUR HONOR, SINCE MAY 5, '03.

26

THE COURT: ALL RIGHT. APPARENTLY HE'S HAD PROBATION

27 EXTENDED. IT MAY HAVE BEEN BECAUSE OF A WARRANT THAT HAD BEEN

28 ISSUED WHICH IT WOULD OTHERWISE TOLL THE RUNNING OF HIS PERIOD.

3

. C.aseCa8s:1e18-:c1v0--0c0v-30.0011-0C2J-.C.' -V-BRKNBDoDcoucmumene#nt :t118690-F39iledFil0e2d/2022//1151 PaPgaeg6e94ooff758 PPagaegeIDID #:69

..

]

\

2

3
4

5 6 7 8 9 10 11 12 13 ·,.·

14 15 16 17 18 19 20 21 22 23 24 25 26 27

28

MS. CHILSTROM: THANK YOU.
(THE PROCEEDINGS IN THE ABOVE-ENTITLED MATTER WERE ADJOURNED.)
-000-

4

·C....aseCa8s:1e18-:c1v0--0c0v-300011-0C2J-CJ -VB-RKN

BDoDcoucmumeennt t189-F9iledFil0e2d/2022//1151· #:1604

PaPgaeg7e05ooff758 PPagaegeIDID #:70

·" . ·:··.;:.- ;:.:;... ·..

2

FOR THE COUNTY OF LOS ANGELES - WEST COVINA BRANCH

3 DEPARTMENT 8

HON. ABRAHAM KHAN, JUDGE

4
THE PEOPLE OF THE STATE OF CALIFORNIA, 5
PLAINTIFF, 6
vs.
7
CRAIG F. MONTEILH,
8
DEFENDANT.
9

)
) ) )
) NO. KA059040
)
) REPORTER'S ) CERTIFICATE
)

10

11

12

I, DIANA WHITESEL, CSR NO. 6287, OFFICIAL REPORTER OF THE

·:t3''·· SlJPi;RIOR ·COURT OF THE ··stATE oF 'cALIFbR.N:tA ,· ·po'R. 'iHE,·cccRJNfY bF

14 LOS ANGELES, DO HEREBY CERTIFY THAT THE FOREGOING IS A TRUE AND (
15 CORRECT TRANSCRIPT OF ALL OF THE ADMONITIONS TAKEN AT THE TIME OF

16 THE TAKING OF THE PLEA AND PRONOUNCEMENT OF SENTENCE IN THE

17 ABOVE-ENTITLED CAUSE; AND FURTHER THAT THE VIEWS AND

18 RECOMMENDATIONS OF THE COURT, IF ANY, ARE CONTAINED THEREIN

19 PURSUANT TO SECTION 1203.01 OF THE PENAL CODE THE ABOVE-ENTITLED

20 MATTER.

21

22

23

DATED THE DECEMBER 2, 2009

24

25

26

~~, CSR NO. 6287

27

DIANA WHITESEL, OFFICIAL RE ORTER

28

5

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 71 of 78 Page ID #:71
ATTACHMENT
2

CaJsULeI;.a.8-s2:e01-21ts0-:1c1.0uv..--c01v08..:•3.u50:u3110-C2J-JC-V~B~KW'~DDooccuummeenntt189-4FileFdile0d2/0222/1/151: Page 72 of 78 Page ID #:72
#:1582

Feder.U Bureau of Investigation
WubingtQD, 0. C. :30535-0001
June 16, 2010
Adam J. Krolikowski, Esq. Woods & Krolikowski 1200 Main Street,-Suite H Irvine, CA 92614
RE: Craig Monteilh [Confidential Communication) Compliance with NPA Notice Requirement
Dear Mr. Krolikowski:
This office is in receipt of your letter to Steven Kramer dated June 15, 2010. In your letter you state that Mr. MontieTh has "been asked to review and sign declarations prepared by the ACLU for a lawsuit they will be filing concerning civil rights violations by the FBI within the Islamic Community during the time period of Operation Flex." I am aware that you have sent previous letters to the FBI conceming the Non:.Disclosure Agreement that Mr. Monteilh signed
· · -'ori October 5, 2007;1iowever; this'ihne fusfletth l.n which you reference a pai'ffcuiar'FBI' ' ..... ~·
operation or investigation. In advance of June 17, 2010, please provide us with any information that you intend to include in these declarations that is/or may be covered by the Non-Disclosure Agreement The FBI maintains that all tho obligations created under the Non~Disclosure Agreement remain in effect. Notification by Mr. Monteilh that he intends to disclose information coveted by this agreement does not limit o:r nullify the obligations that he accepted by signing this agreement

-. ";t

•

~y/2~
Heni)' R. Felix Associate General Counsel Civil Utigation Unit II Office of the General Counsel Federal Bureau of Investigation PA400 935 Pennsylvania Ave., NW Washington, D.C. 20535 · Phone: 202·220-9328 Fax: 202~220·9355

TOTAL P.004

Case 8:11-cv-U00N3IT0E1D-CSTJACT-EVSBDKISTRDIoCcTuCmOeUnRtT,1CENFTilReAdL0D2I/S2T2R/I1C1T OPF aCgAeLI7FO3RoNfIA78 Page ID #:73
CIVIL COVER SHEET

I (a) PLAINTIFFS (Check box if you are representing yourself D) YASSIR FAZAGA, ALI UDDIN MALIK, YASSER ABDELRAJITM

DEFENDANTS FEDERAL BUREAU OF INVESTIGATION; continued on Attachment

(b) Attorneys (Firm Name, Address and Telephone Number. If you are representing yourself, provide same.)
See Attachment

Attorneys (If Known)

II. BASIS OF JURISDICTION (Place an X in one box only.)

IlL CITIZENSHIP OF PRINCIPAL PARTIES- For Diversity Cases Only (Place an X in one box for plaintiff and one for defendant.)

D I U.S. Government Plaintiff

D 3 Federal Question (U.S. Government Not a Party)

Citizen ofThis State

PTF DEF 01 01 Incorporated or Principal Place
of Business in this State

PTF DEF 04 04

r£2 U.S. Government Defendant 0 4 Diversity (Indicate Citizenship Citizen of Another State of Parties in Item III)

02 02 Incorporated and Principal Place 05 05 of Business in Another State

Citizen or Subject of a Foreign Country 0 3 D 3 Foreign Nation

06 06

IV. ORIGIN (Place an X in one box only.)

Iii Original

0 2 Removed from 0 3 Remanded from

Proceeding

State Court

Appellate Court

0 4 Reinstated or Reopened

D 5 Transferred from another district (specify):

D 6 Multi- 0 7 Appeal to District

District

Judge from

Litigation

Magistrate Judge

V. REQUESTED IN COMPLAINT: JURY DEMAND: fives D No (Check 'Yes' only if demanded in complaint.)

CLASS ACTION under F.R.C.P. 23: MYes 0 No

D MONEY DEMANDED IN COMPLAINT: $

VL CAUSE OF ACTION (Cite the U.S. Civil Statute under which you are filing and write a brief statement of cause. Do not cite jurisdictional statutes unless diversity.)

See Attachment

VIL NATURE OF SUIT (Place an X in one box only.)

11¥1~1-'
D 400 State Reapportionment 0 410 Antitrust 0 430 Banks and Banking 0 450 Commerce/ICC
Rates/etc. 0460 Deportation 0470 Racketeer Influenced
and Corrupt Organizations 0480 Consumer Credit 0490 Cable/Sat TV 0810 Selective Service 0850 Securities/Commodities/ Exchange 0875 Customer Challenge 12
usc 3410
0890 Other Statutory Actions 0891 Agricultural Act 0892 Economic Stabilization
Act 0893 Environmental Matters 0894 Energy Allocation Act 0895 Freedom oflnfo. Act 0900 Appeal of Fee Determi-
nation Under Equal Access to Justice 0950 Constitutionality of State Statutes

Insurance Marine Miller Act Negotiable Instrument Recovery of Overpayment & Enforcement of Judgment Medicare Act Recovery of Defaulted Student Loan (Excl. Veterans) Recovery of Overpayment of Veteran's Benefits Stockholders' Suits Other Contract
Foreclosure Rent Lease & Ejectment Torts to Land Tort Product Liability All Other Real Property

Airplane Airplane Product Liability Assault, Libel & Slander Fed. Employers' Liability Marine Marine Product Liability Motor Vehicle Motor Vehicle Product Liability Other Personal Injury Personal InjuryMed Malpractice Personal InjuryProduct Liability Asbestos Personal Injury Product
Naturalization Application Habeas CorpusAlien Detainee Other Immigration Actions

PERSONAL Pl{OPERTY 370 371 380
American with Disabilities Employment American with Disabilities Other Other Civil Rights

Vacate Sentence Habeas Corpus General Death Penalty Mandamus/ Other Civil Rights Prison Condition

Act Labor/Mgmt. Relations Labor/Mgmt. Reporting& Disclosure Act Railway Labor Act Other Labor

Agriculture Other Food& Drug Drug Related Seizure of Property 21 USC 881 Liquor Laws R.R. & Truck Airline Regs Occupational Safety !Health Other

Taxes (U.S. Plaintiff or Defendant) 871 IRS-Third Party 26
usc 7609

SAC'v'll-003.01.
FOR OFFICE USE ONLY: Case N u m b e r : - - - - - - - - - - - - - - - - - - - - - - - - - AFTER COMPLETING THE FRONT SIDE OF FORM CV-71, COMPLETE THE INFORMATION REQUESTED BELOW.

CV-71 (05/08)

CIVIL COVER SHEET

Page I of2

Case 8:11-cv-U0N0I3T0E1D-SCTJACT-EVSBDKISTRDICoTcuCmOUeRnTt ,1CENFTiRleAdL0D2IS/2T2R/I1C1T OFPCaAgLeIF7O4RoNfIA78 Page ID #:74 CIVIL COVER SHEET

VIII(a). IDENTICAL CASES: Has this action been previously filed in this court and dismissed, remanded or closed? ilt'No DYes

If yes, list case number(s): - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

r/ VIII(b). RELATED CASES: Have any cases been
Ifyes, list case number(s): Islamic Shura Council

previously filed in this court that are related of Southern California, eta!. v. Federal

to the present case? D No Bureau ofInvestigation,

Yes eta!., 07-cv-01088-CJC-(ANx)

Civil cases are deemed related if a previously filed case and the present case:
llf (Check all boxes that apply) A. Arise from the same or closely related transactions, happenings, or events; or
DB. Call for determination of the same or substantially related or similar questions of law and fact; or
DC. For other reasons would entail substantial duplication oflabor if heard by different judges; or
D D. Involve the same patent, trademark or copyright, ru!l! one of the factors identified above in a, b or c also is present.

IX. VENUE: (When completing the following information, use an additional sheet if necessary.)

(a) List the County in this District; California County outside of this District; State if other than California; or Foreign Country, in which EACH named plaintiff resides. D Check here if the government, its agencies or employees is a named plaintiff. If this box is checked. go to item (b).

County in this District: •

California County outside ofthis District; State, ifother than California; or Foreign Country

Orange County

(b} List the County in this District; California County outside of this District; State if other than California; or Foreign Country, in which EACH named defendant resides.
Dl Check here if the government its agencies or employees is a named defendant. If this box is checked, go to item (c).

County in this District:•

California County outside ofthis District; State, ifother than California; or Foreign Country

(c) List the County in this District; California County outside of this District; State if other than California; or Foreign Country, in which EACH claim arose.

Note: In land condemnation cases' use the location of the tract ofland involved

County in this District: •

California County outside ofthis District; State, ifother than California; or Foreign Country

Orange County

• Los Angeles, Orange, San Bernardino, Riverside, Ventura, Santa Barbara, or San Luis Obispo Counties

Note: In land condemnation cases use the location of the

· lved

Notice to Counsel/Parties: The CV-71 (JS-44) Civil Cover Sheet and the information or other papers as required by law. This form, approved by the Judicial Conference ofthe but is used by the Clerk ofthe Court for the_ purpose ofstatistics, venue and initiating the

contained herein neither replace nor supplement the filing and service of pleadings United States in September 1974, is required pursuantto Local Rule 3-1 is not filed civil docket sheet. (For more detailed instructions, see separate instructions sheet.)

Key to Statistical codes relating to Social Security Cases: Nature of Suit Code Abbreviation Substantive Statement of Cause of Action

861

IDA

All claims for health insurance benefits (Medicare) under Title 18, Part A, of the Social Security Act, as amended.

Also, include claims by hospitals, skilled nursing facilities, etc., for certification as providers of services under the

program. (42 U.S.C. 1935FF(b))

862

BL

All claims for "Black Lung" benefits under Title 4, Part B, of the Federal Coal Mine Health and Safety Act of 1969.

(30 U.S.C. 923)

863

DIWC

All claims filed by insured workers for disability insurance benefits under Title 2 ofthe Social Security Act, as

amended; plus all claims filed for child's insurance benefits based on disability. (42 U.S.C. 405(g))

863

DIWW

All claims filed for widows or widowers insurance benefits based on disability under Title 2 of the Social Security

Act, as amended. (42 U.S.C. 405(g))

864

SSID

All claims for supplemental security income payments based upon disability filed under Title 16 of the Social Security

Act, as amended.

865

RSI

All claims for retirement (old age) and survivors benefits under Title 2 of the Social Security Act, as amended. (42

u.s.c. (g))

CV-71 (05/08)

CIVIL COVER SHEET

Page 2 of2

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 75 of 78 Page ID #:75
ATTACHMENT TO CIVIL COVER SHEET
I(a). Additional Plaintiff's Attorneys:
Ameena Mirza Qazi (SBN 250404) COUNCIL ON AMERICAN-ISLAMIC RELATIONS, CALIFORNIA 2180 W. Crescent Avenue, Suite F Anaheim, California 9280 1
Dan Stormer (SBN 101967) Joshua Piovia-Scott (SBN 22364) Reem Salahi (SBN 259711) HADSELL STORMER KEENY RICHARDSON & RENICK, LLP 128 N. Fair Oaks Avenue, Suite 204 Pasadena, California 911 03
l(a). Defendants continued:
ROBERT MUELLER, DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION, in his official capacity; STEVEN M. MARTINEZ, ASSISTANT DIRECTOR IN CHARGE, FEDERAL BUREAU OF INVESTIGATION'S LOS ANGELES DIVISION, in his official capacity; J. STEPHEN TIDWELL; BARBARA WALLS; PAT ROSE; KEVIN ARMSTRONG; PAUL ALLEN;
VI. Cause of Action:
Bivens v. Six Unknown Agents, 403 U.S. 388 (1971); 42 U.S.C. § 1985: Religious Discrimination in violation of First and Fifth Amendments. Unreasonable Search in violation of Fourth Amendment. Privacy Act, 5 U.S.C. § 552a: Unlawful Maintenance of Records of First Amendment activity. Foreign Intelligence Surveillance Act, 50 U.S.C. § 1810: Unlawful Electronic Surveillance.

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 76 of 78 Page ID #:76
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
NOTICE OF ASSIGNMENT TO UNITED STATES MAGISTRATE JUDGE FOR DISCOVERY
This case has been assigned to District Judge Josephine Tucker and the assigned discovery Magistrate Judge is Victor B. Kenton. The case number on all documents filed with the Court should read as follows:
SACVll- 301 JST (VBKx}
Pursuant to General Order 05-07 of the United States District Court for the Central District of California, the Magistrate Judge has been designated to hear discovery related motions.
All discovery related motions should be noticed on the calendar of the Magistrate Judge

NOTICE TO COUNSEL

A copy of this notice must be served with the summons and complaint on all defendants (if a removal action is filed, a copy of this notice must be served on all plaintiffs).

Subsequent documents must be filed at the following location:

U Western Division
312 N. Spring St., Rm. G-8 Los Angeles, CA 90012

[X] Southern Division

U Eastern Division

411 West Fourth St., Rm. 1-053

3470 Twelfth St., Rm. 134

Santa Ana, CA 92701-4516

Riverside, CA 92501

Failure to file at the proper location will result in your documents being returned to you.

CV-18 (03/06)

NOTICE OF ASSIGNMENT TO UNITED STATES MAGISTRATE JUDGE FOR DISCOVERY

Case 8:11-cv-00301-CJC-VBK Document 1 Name & Address:Peter Bibring, Jennie Pasquarella, Ahilan Arulanantham, ACLU FOUNDATION OF SOUTHERN CALIFORNIA, 1313 West Eighth St., Los Angeles, California 90017
continued on Attachment

Filed 02/22/11 Page 77 of 78 Page ID #:77
OR OFFICE USE ONLY

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

YASSIR FAZAGA, ALI UDDIN MALIK, YASSER ABDELRAillM,
PLAlNTIFF(S)
v.

CASE NUMBER
c sA v11 - 003011(1('4'#~

FEDERAL BUREAU OF INVESTIGATION;

continued on Attachment

DEFENDANT(S).

SUMMONS

TO: DEFENDANT(S): FEDERAL BUREAU OF INVESTIGATION; continued on Attachment

A lawsuit has been filed against you.

Within 60 days after service of this summons on you (not counting the day you received it), you

must serve on the plaintiff an answer to the attached ti'complaint 0

amended complaint

0 counterclaim 0 cross-claim or a motion under Rule 12 ofthe Federal Rules of Civil Procedure. The answer

or motion must be served on the plaintiffs attorney, Peter Bibring

, whose address is

ACLU Foundation ofSouthem Califomia,l313 West Eighth St., Los Angeles, CA 90017 . Ifyou fail to do so,

judgment by default will be entered against you for the relief demanded in the complaint. You also must file

your answer or motion with the court.

FEB 2 2 2011
Dated:-----------

Clerk, U.S. District Court
JULIE P
DeputyCler
(Seal ofthe Court)

[Use 60 days ifthe defendant is the United States or a United States agency, or is an officer or employee ofthe United States. Allowed
60 days by Rule 12(a)(3)].

CV-OIA (12/07)

SUMMONS

Case 8:11-cv-00301-CJC-VBK Document 1 Filed 02/22/11 Page 78 of 78 Page ID #:78
ATTACHMENT TO SUMMONS
Additional Plaintiff's Attorneys:
Ameena Mirza Qazi (SBN 250404) COUNCIL ON AMERICAN-ISLAMIC RELATIONS, CALIFORNIA 2180 W. Crescent Avenue, Suite F Anaheim, California 9280 1
Dan Stormer (SBN 101967) Joshua Piovia-Scott (SBN 22364) Reem Salahi (SBN 259711) HADSELL STORMER KEENY RICHARDSON & RENICK, LLP 128 N. Fair Oaks Avenue, Suite 204 Pasadena, California 91103
Defendants continued:
ROBERT MUELLER, DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION, in his official capacity; STEVEN M. MARTINEZ, ASSISTANT DIRECTOR IN CHARGE, FEDERAL BUREAU OF INVESTIGATION'S LOS ANGELES DIVISION, in his official capacity; J. STEPHEN TIDWELL; BARBARA WALLS; PAT ROSE; KEVIN ARMSTRONG; PAUL ALLEN;

 
 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (Southern Division - Santa Ana)
CIVIL DOCKET FOR CASE #: 8:11-cv-00301-CJC-VBK

Yassir Fazaga et al v. Federal Bureau of Investigation et Date Filed: 02/22/2011

al

Date Terminated: 01/29/2013

Assigned to: Judge Cormac J. Carney

Jury Demand: Plaintiff

Referred to: Magistrate Judge Victor B. Kenton

Nature of Suit: 440 Civil Rights:

Related Case: 8:07-cv-01088-CJC-AN Case in other court: 9th CCA, 12-56867
9th CCA, 12-56874

Other Jurisdiction: U.S. Government Defendant

9TH CCA, 13-55017

Cause: 28:1343 Violation of Civil Rights

Plaintiff Yassir Fazaga

represented by Ahilan T Arulanantham ACLU Foundation of Southern California 1313 West Eighth Street Los Angeles, CA 90017 213-977-5211 Fax: 213-977-5297 Email: aarulanantham@aclu-sc.org ATTORNEY TO BE NOTICED

Ameena Mirza Qazi Mirza Law Office and Consulting 1100 East Orangethorpe Avenue Suite 200B Anaheim, CA 92801 888-317-0898 Email: ameena@mirzalawoffice.com ATTORNEY TO BE NOTICED

Amr Shabaik Council on American-Islamic Relations - CA 2180 West Crescent Avenue Suite F Anaheim, CA 92801 714-776-1177 Fax: 714-776-8340 Email: ashabaik@cair.com ATTORNEY TO BE NOTICED

Dan Stormer Hadsell Stormer Richardson and Renick LLP 128 North Fair Oaks Avenue Pasadena, CA 91103 626-585-9600 Fax: 626-577-7079 Email: dstormer@hadsellstormer.com ATTORNEY TO BE NOTICED
Dina Chehata Council on American Islamic Relations 2180 West Crescent Avenue Suite F Anaheim, CA 92801 714-776-1177 Fax: 714-776-8340 Email: dchehata@cair.com ATTORNEY TO BE NOTICED
Jennifer L Pasquarella ACLU Foundation of Southern California 1313 West Eighth Street Los Angeles, CA 90017 213-977-9500 Fax: 213-977-5297 Email: jpasquarella@aclu-sc.org PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua Piovia-Scott Hadsell Stormer & Renick LLP 128 North Fair Oaks Avenue Pasadena, CA 91103 626-585-9600 Fax: 626 577 7079 Email: jps@hadsellstormer.com ATTORNEY TO BE NOTICED
Mohammad K Tajsar ACLU Foundation of Southern California 1313 West 8th Street

Plaintiff Ali Uddin Malik

Los Angeles, CA 90017 213-977-5200 Fax: 213-977-5297 Email: mtajsar@aclusocal.org ATTORNEY TO BE NOTICED
Peter Bibring ACLU Foundation of Southern California 1313 West Eight Street Los Angeles, CA 90017 213-977-9500 Fax: 213-977-5297 Email: pbibring@aclu-sc.org ATTORNEY TO BE NOTICED
Reem Salahi Reem Salahi Law Offices 23811 Terrace View Drive Newhall, CA 91321-3475 510-225-8880 ATTORNEY TO BE NOTICED
Yaman Salahi Advancing Justice - Asian Law Caucus 55 Columbus Ave. San Francisco, CA 94610 415-848-7711 Fax: 415-896-1702 Email: yamans@advancingjusticealc.org TERMINATED: 11/12/2013 ATTORNEY TO BE NOTICED
represented by Ahilan T Arulanantham (See above for address) ATTORNEY TO BE NOTICED
Ameena Mirza Qazi (See above for address) ATTORNEY TO BE NOTICED
Amr Shabaik (See above for address)

Plaintiff Yasser Abdelrahim

ATTORNEY TO BE NOTICED
Dan Stormer (See above for address) ATTORNEY TO BE NOTICED
Dina Chehata (See above for address) ATTORNEY TO BE NOTICED
Jennifer L Pasquarella (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua Piovia-Scott (See above for address) ATTORNEY TO BE NOTICED
Mohammad K Tajsar (See above for address) ATTORNEY TO BE NOTICED
Peter Bibring (See above for address) ATTORNEY TO BE NOTICED
Reem Salahi (See above for address) ATTORNEY TO BE NOTICED
Yaman Salahi (See above for address) TERMINATED: 11/12/2013 ATTORNEY TO BE NOTICED
represented by Ahilan T Arulanantham (See above for address) ATTORNEY TO BE NOTICED
Ameena Mirza Qazi (See above for address) ATTORNEY TO BE NOTICED
Amr Shabaik

V. Defendant Federal Bureau of Investigation

(See above for address) ATTORNEY TO BE NOTICED
Dan Stormer (See above for address) ATTORNEY TO BE NOTICED
Dina Chehata (See above for address) ATTORNEY TO BE NOTICED
Jennifer L Pasquarella (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua Piovia-Scott (See above for address) ATTORNEY TO BE NOTICED
Mohammad K Tajsar (See above for address) ATTORNEY TO BE NOTICED
Peter Bibring (See above for address) ATTORNEY TO BE NOTICED
Reem Salahi (See above for address) ATTORNEY TO BE NOTICED
Yaman Salahi (See above for address) TERMINATED: 11/12/2013 ATTORNEY TO BE NOTICED
represented by Anthony Joseph Coppolino US Department of Justice Federal Programs Branch 20 Massachusetts Avenue NW Room 6102 883

Defendant Robert Mueller Director of the Federal Bureau of Investigation, in his official capacity
Defendant Steven M Martinez Assistant Director in Charge, Federal Bureau of Investigation's

Washington, DC 20001 202-514-4782 Email: tony.coppolino@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph J DeMott US Department of Justice Civil Division - Federal Programs Branch 1100 L Street NW Room 12210 Washington, DC 20004 202-514-3367 Fax: 202-616-8460 Email: joseph.demott@usdoj.gov ATTORNEY TO BE NOTICED
Lynn Y Lee US Department of Justice Civil Division P O Box 883 Washington, DC 20044 202-305-0531 Fax: 202-616-8470 Email: lynn.lee@usdoj.gov ATTORNEY TO BE NOTICED
represented by Anthony Joseph Coppolino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph J DeMott (See above for address) ATTORNEY TO BE NOTICED
Lynn Y Lee (See above for address) ATTORNEY TO BE NOTICED
represented by Anthony Joseph Coppolino (See above for address) LEAD ATTORNEY

Los Angeles Division, in his official capacity
Defendant J Stephen Tidwell

ATTORNEY TO BE NOTICED
Joseph J DeMott (See above for address) ATTORNEY TO BE NOTICED
Lynn Y Lee (See above for address) ATTORNEY TO BE NOTICED
represented by Annie L Owens Wilmer Cutler Pickering Hale & Dorr LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 202-663-6471 Fax: 202-663-6363 Email: annie.owens@wilmerhale.com TERMINATED: 10/01/2013 PRO HAC VICE ATTORNEY TO BE NOTICED
Brian R Michael King & Spalding LLP 633 W. 5th Street Suite 1700 Los Angeles, CA 90071 213-443-4317 Fax: 213-443-4310 Email: bmichael@kslaw.com TERMINATED: 08/17/2012
Carl J Nichols Wilmer Cutler Pickering Hale & Dorr LLP 1875 Pennsylvania Avenue NW Washington, CA 20006 202-663-6226 Fax: 202-663-6363 TERMINATED: 07/23/2020 PRO HAC VICE
Catherine M.A. Carroll Wilmer Cutler Pickering Hale and

Defendant Barbara Walls

Dorr LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 202-663-6072 Fax: 202-663-6363 Email: catherine.carroll@wilmerhale.com PRO HAC VICE ATTORNEY TO BE NOTICED
Howard M Shapiro Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 202-663-6606 Fax: 202-663-6363 Email: howard.shapiro@wilmerhale.com PRO HAC VICE ATTORNEY TO BE NOTICED
Katie Moran Wilmer Cutler Pickering Hale and Dorr LLP 350 South Grand Avenue Suite 2400 Los Angeles, CA 90071 213-443-5300 Email: katie.moran@wilmerhale.com ATTORNEY TO BE NOTICED
Peiyin Patty Li California Department of Justice Office of the Attorney General 455 Golden Gate Ave. Suite 11000 San Francisco, CA 94012 415-510-3817 Fax: 415-703-1234 Email: patty.li@doj.ca.gov TERMINATED: 06/03/2013
represented by Annie L Owens (See above for address)

Defendant Pat Rose

TERMINATED: 10/01/2013 PRO HAC VICE ATTORNEY TO BE NOTICED
Brian R Michael (See above for address) TERMINATED: 08/17/2012
Carl J Nichols (See above for address) TERMINATED: 07/23/2020 PRO HAC VICE
Catherine M.A. Carroll (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Howard M Shapiro (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katie Moran (See above for address) ATTORNEY TO BE NOTICED
Peiyin Patty Li (See above for address) TERMINATED: 06/03/2013
represented by Alexander H Cote Scheper Kim and Harris LLP 800 West Sixth Street, 18th Floor Los Angeles, CA 90017-2701 213-613-4655 Fax: 213-613-4656 Email: acote@scheperkim.com ATTORNEY TO BE NOTICED
Amos Alexander Lowder Scheper Kim and Harris LLP 601 West 5th Street 12th Floor Los Angeles, CA 90071 213-613-4655

Defendant Kevin Armstrong
Defendant Paul Allen

Fax: 213-613-4656 Email: alowder@scheperkim.com TERMINATED: 08/14/2020
Angela M Machala Scheper Kim & Harris LLP One Bunker Hill 601 West Fifth Street 12th Floor Los Angeles, CA 90071-2025 213-613-4655 Fax: 213-613-4656 Email: amachala@scheperkim.com ATTORNEY TO BE NOTICED
David C Scheper Scheper Kim and Harris LLP 800 West Sixth Street, 18th Floor Los Angeles, CA 90017-2701 213-613-4670 Fax: 213-613-4656 Email: dscheper@scheperkim.com ATTORNEY TO BE NOTICED
represented by Alexander H Cote (See above for address) ATTORNEY TO BE NOTICED
Amos Alexander Lowder (See above for address) TERMINATED: 08/14/2020
Angela M Machala (See above for address) ATTORNEY TO BE NOTICED
David C Scheper (See above for address) ATTORNEY TO BE NOTICED
represented by Amos Alexander Lowder (See above for address) TERMINATED: 08/14/2020

Defendant DOES 1-20
Defendant United States of America

Angela M Machala (See above for address) ATTORNEY TO BE NOTICED
David C Scheper (See above for address) ATTORNEY TO BE NOTICED
represented by Anthony Joseph Coppolino (See above for address) ATTORNEY TO BE NOTICED
Joseph J DeMott (See above for address) ATTORNEY TO BE NOTICED
Stephen E Handler US Department of Justice Civil Division Torts Branch Benjamin Franklin Station Post Office Box 888 Washington, DC 20044 202-616-4279 Email: stephen.handler@usdoj.gov ATTORNEY TO BE NOTICED
W. Scooter Slade U S Department of Justice Litigation Security Group Two Constitution Square 145 N Street, N E Washington, DC 20530 202-514-9016 Fax: 202-307-2066 Email: scooter.slade@usdoj.gov ATTORNEY TO BE NOTICED

Date Filed # Docket Text

02/22/2011
02/22/2011
02/22/2011 02/22/2011 02/24/2011
03/09/2011 03/09/2011 03/31/2011 04/05/2011

1 COMPLAINT against Defendants Paul Allen, Kevin Armstrong, Federal Bureau of Investigation, Steven M Martinez, Robert Mueller, Pat Rose, J Stephen Tidwell and Barbara Walls. Case assigned to Judge Josephine Staton Tucker for all further proceedings. Discovery referred to Magistrate Judge Victor B. Kenton.(Filing fee $ 350 Paid). Jury Demanded. Filed by Plaintiffs Ali Uddin Malik, Yasser Abdelrahim and Yassir Fazaga.(lwag) (Entered: 02/24/2011)
60 DAY Summons Issued re Complaint - (Discovery), Complaint -
(Discovery) 1 as to Defendants Paul Allen, Kevin Armstrong, Federal Bureau of Investigation, Steven M Martinez, Robert Mueller, Pat Rose, J Stephen Tidwell and Barbara Walls. (lwag) (Entered: 02/24/2011)
2 NOTICE of Interested Parties filed by Plaintiffs Yasser Abdelrahim, Yassir Fazaga and Ali Uddin Malik. (lwag) (Entered: 02/24/2011)
3 NOTICE of Related Case(s) filed by Plaintiffs Yasser Abdelrahim, Yassir Fazaga and Ali Uddin Malik. Related Case(s): 8:07-cv-01088CJC(ANx). (lwag) (Entered: 02/24/2011)
4 ORDER RE TRANSFER PURSUANT TO GENERAL ORDER 08-05 -Related Case- filed. Related Case No: SACV07-01088 CJC (ANx). Case transferred from Judge Josephine Staton Tucker to Judge Cormac J. Carney for all further proceedings. The case number will now reflect the initials of the transferee Judge SACV11-00301 CJC (VBKx). Signed by Judge Cormac J. Carney. (dro) (Entered: 02/28/2011)
5 NOTICE of Appearance filed by attorney Anthony Joseph Coppolino on behalf of Defendants Federal Bureau of Investigation, Steven M Martinez, Robert Mueller (Coppolino, Anthony) (Entered: 03/09/2011)
6 NOTICE of Appearance filed by attorney Lynn Y Lee on behalf of Defendants Federal Bureau of Investigation, Steven M Martinez, Robert Mueller (Lee, Lynn) (Entered: 03/09/2011)
7 NOTICE of Related Case(s) filed by defendants Federal Bureau of Investigation, Steven M Martinez, Robert Mueller. Related Case(s): 10102 (Lee, Lynn) (Entered: 03/31/2011)
8 RESPONSE filed by Plaintiffs Yasser Abdelrahim, Yassir Fazaga, Ali
Uddin Malikto Notice of Related Case(s) 7 (Attachments: # 1 Exhibit)(Bibring, Peter) (Entered: 04/05/2011)

04/06/2011 04/11/2011 04/11/2011 04/20/2011 04/20/2011 05/27/2011 05/27/2011 05/31/2011

9 ORDER RE TRANSFER PURSUANT TO GENERAL ORDER 08-05 (Related Case) filed. Transfer of case declined by Judge James V. Selna, for the reasons set forth on this order. Related Case No. SACV10-00102 JVS (RNBx) (ade) (Entered: 04/06/2011)
10 STIPULATION for Order To Defer Class Certification Proceedings filed by plaintiffs Yasser Abdelrahim, Yassir Fazaga, Ali Uddin Malik. (Attachments: # 1 Proposed Order Re: Stipulation to Defer Class Certification Proceedings)(Bibring, Peter) (Entered: 04/11/2011)
11 STIPULATION for Extension of Time to File Answer to June 7, 2011
re Complaint - (Discovery), Complaint - (Discovery) 1 filed by plaintiffs Yasser Abdelrahim, Yassir Fazaga, Ali Uddin Malik. (Attachments: # 1 Proposed Order re: Stipulation to Extend Time for Initial Response to Complaint)(Bibring, Peter) (Entered: 04/11/2011)
12 ORDER by Judge Cormac J. Carney, re Stipulation to Defer Class Certification Proceedings 10 : Court hereby ORDERS that Plaintiffs are relieved from the requirement set forth in Local Rule 23-3 that a motion for class certification be filed within 90 days after service of a pleading purporting to commence a class action. (See document for further details.) (rla) (Entered: 04/21/2011)
13 ORDER by Judge Cormac J. Carney granting Stipulation to Extend Time to Answer 11 : Court hereby ORDERS that: (i) the date on which the Official Capacity Defendants must respond to the Complaint shall be extended to June 7, 2011; and that (ii) the date on which Defendant Stephen Tidwell must respond to the Complaint shall also be extended to June 7, 2011. (rla) (Entered: 04/21/2011)
14 Joint STIPULATION for Extension of Time to File Answer to July 22, 2011 filed by defendants J Stephen Tidwell, Barbara Walls. (Attachments: # 1 Proposed Order re Extension of Time to Answer or Otherwise Respond to Complaint and Briefing Schedule)(Michael, Brian) (Entered: 05/27/2011)
15 NOTICE of Appearance filed by attorney Peiyin Patty Li on behalf of Defendants J Stephen Tidwell, Barbara Walls (Li, Peiyin) (Entered: 05/27/2011)
16 ORDER granting Stipulation to Extend Time to Answer (More than 30 days) 14 , defendant Paul Allen answer due 7/22/2011; Kevin Armstrong answer due 7/22/2011; Federal Bureau of Investigation answer due 7/22/2011; Steven M Martinez answer due 7/22/2011; Robert Mueller answer due 7/22/2011; Pat Rose answer due 7/22/2011;

06/08/2011
06/08/2011 06/08/2011
06/09/2011 06/09/2011 06/09/2011

J Stephen Tidwell answer due 7/22/2011; Barbara Walls answer due 7/22/2011 by Judge Cormac J. Carney (twdb) (Entered: 06/01/2011)
17 PROOF OF SERVICE Executed by Plaintiff Ali Uddin Malik, Yasser Abdelrahim, Yassir Fazaga, upon Defendant Federal Bureau of Investigation served on 3/3/2011, answer due 7/22/2011; Steven M Martinez served on 3/3/2011, answer due 7/22/2011; Robert Mueller served on 3/3/2011, answer due 7/22/2011. Service of the Summons and Complaint were executed upon the United States Attorneys Office by delivering a copy to Pat Myles. Executed upon the Attorney Generals Office of the United States by delivering a copy to illegible. Service was executed in compliance with Federal Rules of Civil Procedure. Due diligence declaration NOT attached. Registered or certified mail return receipt attached. Original Summons NOT returned. (Attachments: # 1 Exhibit POS Atty General, # 2 Exhibit POS Govt. Defendants)(Bibring, Peter) (Entered: 06/08/2011)
18 WAIVER OF SERVICE Returned Executed filed by plaintiff Ali Uddin Malik, Yasser Abdelrahim, Yassir Fazaga. upon J Stephen Tidwell waiver sent by Plaintiff on 3/3/2011, answer due 7/22/2011. Waiver of Service signed by J. Stephen Tidwell. (Bibring, Peter) (Entered: 06/08/2011)
19 PROOF OF SERVICE Executed by Plaintiff Ali Uddin Malik, Yasser Abdelrahim, Yassir Fazaga, upon Plaintiff Paul Allen served on 4/8/2011, answer due 7/22/2011; Kevin Armstrong served on 4/8/2011, answer due 7/22/2011; Pat Rose served on 4/8/2011, answer due 7/22/2011; Barbara Walls served on 4/8/2011, answer due 7/22/2011. Service of the Summons and Complaint were executed upon Kimberly Harberson, Clerk authorized to accept service in compliance with Federal Rules of Civil Procedure by personal service. Original Summons NOT returned. (Bibring, Peter) (Entered: 06/08/2011)
20 APPLICATION for attorney Howard M. Shapiro to Appear Pro Hac Vice (PHV FEE PAID.) filed by Defendant J Stephen Tidwell, Barbara Walls. Lodged Proposed Order. (Attachments: # 1 Proposed Order)(nbo) (Entered: 06/09/2011)
21 APPLICATION for attorney Annie L. Owens to Appear Pro Hac Vice (PHV FEE PAID) filed by Defendants J Stephen Tidwell, Barbara Walls. (nbo) (Entered: 06/09/2011)
22 APPLICATION for attorney Carl J. Nichols to Appear Pro Hac Vice (PHV FEE PAID) filed by Defendants J Stephen Tidwell, Barbara Walls. Lodged Proposed Order. (Attachments: # 1 Proposed Order)(nbo) (Entered: 06/09/2011)

07/19/2011 07/19/2011 07/19/2011 07/20/2011
07/22/2011 07/22/2011

23 Joint STIPULATION for Extension of Time to File Answer filed by Defendant J Stephen Tidwell, Barbara Walls. (Attachments: # 1 Proposed Order RE: Extension of Time for Defendants to Answer or Otherwise Respond to Complaint and Request for Extension of Page Limits)(Michael, Brian) (Entered: 07/19/2011)
24 NOTICE of Change of Attorney Information for attorney Alexander H Cote counsel for Defendant Pat Rose. Adding Alexander H. Cote as attorney as counsel of record for Defendants Pat Rose, Kevin Armstrong and Paul Allen for the reason indicated in the G-06 Notice. Filed by Defendant Pat Rose, Kevin Armstrong, Paul Allen (Cote, Alexander) (Entered: 07/19/2011)
25 NOTICE of Change of Attorney Information for attorney Amos Alexander Lowder counsel for Defendant Pat Rose. Adding Amos A. Lowder as attorney as counsel of record for Defendants Pat Rose, Kevin Armstrong and Paul Allen for the reason indicated in the G-06 Notice. Filed by Defendants Pat Rose, Kevin Armstrong and Paul Allen (Lowder, Amos) (Entered: 07/19/2011)
26 ORDER granting Stipulation to Extend Time to Answer or Otherwise Respond to Complaint 23 by Judge Cormac J. Carney: (1) U.S. Department of Justice, on behalf of FBI and Robert Mueller and Steven M. Martinez, deadline to file its contemplated motion to dismiss shall be extended until 7/26/11; the time for J. Stephen Tidwell, Barbara Walls, Pat Rose, Kevin Armstrong, and Paul Allen to file their motions to dismiss shall be extended until 8/2/11 at 5:00 p.m. PDT; the time for Plaintiffs to file opposition briefs to all Defendants' motions shall be extended until 10/7/11; and the time for all Defendants to file their reply briefs shall be extended until 10/21/11; (2) That the date for a hearing on all Defendants' motions to dismiss shall be 11/7/11 at 1:30 p.m.; (3) That the time for Plaintiffs to amend their Complaint pursuant to Fed.R.Civ.P 15(a)(1)(B) as to all Defendants shall be 21 days from the date the individual-capacity Defendants file their motions to dismiss; and (4) That the parties' briefs in support of or in opposition to Defendants' motions to dismiss shall not exceed 35 pages. (rla) (Entered: 07/21/2011)
27 ORDER by Judge Cormac J. Carney: granting 20 Application to Appear Pro Hac Vice by Attorney Howard M. Shapiro on behalf of J. Stephen Tidwell and Barbara Wells, designating Brian R. Michael as local counsel. (lt) (Entered: 07/25/2011)
28 ORDER by Judge Cormac J. Carney: granting 21 Application to Appear Pro Hac Vice by Attorney Annie L. Owens on behalf of J.

07/22/2011 07/25/2011 07/26/2011
08/01/2011
08/01/2011 08/01/2011

Stephen Tidwell and Barbara Wells, designating Brian R. Michael as local counsel. (lt) (Entered: 07/25/2011)
29 ORDER by Judge Cormac J. Carney: granting 22 Application to Appear Pro Hac Vice by Attorney CArl J. Nichols on behalf of J. Stephen Tidwell and Barbara Wells, designating Brian R. Michael as local counsel. (lt) (Entered: 07/25/2011)
30 Joint STIPULATION for Extension of Time to File Answer filed by Defendants Federal Bureau of Investigation, Steven M Martinez, Robert Mueller. (Attachments: # 1 Declaration Declaration of Anthony J. Coppolino, U.S. Department of Justice, # 2 Proposed Order)(Coppolino, Anthony) (Entered: 07/25/2011)
31 ORDER RE: EXTENSION OF TIME FOR DEFENDANTS TO ANSWER OR OTHERWISE RESPOND TOCOMPLAINT; REVISION TO BRIEFING AND HEARING SCHEDULE by Judge Cormac J. Carney: This Court hereby ORDERS as follows: (1) The time for DOJ to file its motion to dismiss shall be extended until August 1, 2011; the time for the individual-capacity defendants to file their motions to dismiss shall be extended until August 9, 2011; the time for plaintiffs to file opposition briefs to all defendants motions shall be extended until October 14, 2011; and the time for all defendants to file their reply briefs shall be extended until October 28, 2011. (see document for details) (mu) (Entered: 07/27/2011)
32 NOTICE OF MOTION AND MOTION to Dismiss Case and for Summary Judgment filed by Defendants Federal Bureau of Investigation, Steven M Martinez, Robert Mueller. Motion set for hearing on 11/14/2011 at 01:30 PM before Judge Cormac J. Carney.
(Attachments: # 1 Declaration Christopher N. Morin, FBI, # 2
Appendix Statement of Material Facts, # 3 Declaration Attorney General Eric H. Holder)(Coppolino, Anthony) (Entered: 08/01/2011)
33 DECLARATION of Mark F. Giuliano, Federal Bureau of Investigation in Support of MOTION to Dismiss Case and for Summary Judgment 32
filed by Defendants Federal Bureau of Investigation, Steven M Martinez, Robert Mueller. (Coppolino, Anthony) (Entered: 08/01/2011)
34 EXHIBIT 1-3 to MOTION to Dismiss Case and for Summary
Judgment 32 Exhibits to Public Declaration of Mark F. Giuliano, Federal Bureau of Investigation filed by Defendants Federal Bureau of

08/01/2011 08/01/2011 08/03/2011 08/03/2011 08/04/2011 08/09/2011 08/09/2011
08/09/2011

Investigation, Steven M Martinez, Robert Mueller. (Coppolino, Anthony) (Entered: 08/01/2011)
35 NOTICE OF LODGING filed Notice of Lodging of Classified In Camera, Ex Parte Declaration of Mark F. Giuliano, Federal Bureau of Investigation re MOTION to Dismiss Case and for Summary
Judgment 32 (Coppolino, Anthony) (Entered: 08/01/2011)
36 NOTICE OF LODGING filed Notice of Lodging of Classified In Camera, Ex Parte Supplemental Memorandum by Government Defendants re MOTION to Dismiss Case and for Summary
Judgment 32 (Coppolino, Anthony) (Entered: 08/01/2011)
37 NOTICE of Appearance filed by attorney David C Scheper on behalf of Defendants Paul Allen, Kevin Armstrong, Pat Rose (Scheper, David) (Entered: 08/03/2011)
38 NOTICE of Appearance filed by attorney Angela Machala on behalf of Defendants Paul Allen, Kevin Armstrong, Pat Rose (Machala, Angela) (Entered: 08/03/2011)
39 EX PARTE APPLICATION for Order for Staying Review of Defendants' Ex Parte In Camera Submissions filed by Plaintiffs Yasser Abdelrahim, Yassir Fazaga, Ali Uddin Malik. (Attachments: # 1 Proposed Order)(Bibring, Peter) (Entered: 08/04/2011)
40 NOTICE of Appearance filed by attorney Katie Moran on behalf of Defendants J Stephen Tidwell, Barbara Walls (Moran, Katie) (Entered: 08/09/2011)
41 NOTICE OF MOTION AND MOTION to Dismiss Plaintiffs' Class Action Complaint ; Notice of Joinder in Motions to Dismiss by (1) Defendants FBI, Robert Mueller, and Steven Martinez and (2) Defendants Stephen Tidwell and Barbara Walls filed by defendants Paul Allen, Kevin Armstrong, Pat Rose. Motion set for hearing on 11/14/2011 at 01:30 PM before Judge Cormac J. Carney. (Scheper, David) (Entered: 08/09/2011)
42 NOTICE OF MOTION AND MOTION to Dismiss Case filed by Defendants J Stephen Tidwell, Barbara Walls. Motion set for hearing on 11/14/2011 at 01:30 PM before Judge Cormac J. Carney. (Li, Peiyin) (Entered: 08/09/2011)

08/10/2011 08/10/2011 08/11/2011
08/11/2011 08/29/2011 08/29/2011 09/13/2011

43 OPPOSITION to EX PARTE APPLICATION for Order for Staying
Review of Defendants' Ex Parte In Camera Submissions 39 filed by Defendants Federal Bureau of Investigation, Steven M Martinez, Robert Mueller. (Attachments: # 1 Exhibit 1)(Lee, Lynn) (Entered: 08/10/2011)
44 JOINDER in EX PARTE APPLICATION for Order for Staying Review of Defendants' Ex Parte In Camera Submissions 39
JOINDER TO GOVERNMENT DEFENDANTS' RESPONSE TO PLAINTIFFS' EX PARTE APPLICATION filed by Defendant Pat Rose. (Cote, Alexander) (Entered: 08/10/2011)
45 NOTICE OF ERRATA filed by Defendants Paul Allen, Kevin Armstrong, Pat Rose. correcting MOTION to Dismiss Plaintiffs' Class Action Complaint ; Notice of Joinder in Motions to Dismiss by (1) Defendants FBI, Robert Mueller, and Steven Martinez and (2) Defendants Stephen Tidwell and Barbara Walls MOTION to Dismiss Plaintiffs' Class Action Complaint ; Notice of Joinder in Motions to Dismiss by (1) Defendants FBI, Robert Mueller, and Steven Martinez and (2) Defendants Stephen Tidwell and Barbara Walls 41
(Attachments: # 1 Exhibit 1 - CORRECTED Motion to Dismiss)(Machala, Angela) (Entered: 08/11/2011)
46 MINUTES (IN CHAMBERS): ORDER by Judge Cormac J. Carney:
DENYING 39 Ex Parte Application: Plaintiffs' ex parte application is DENIED. The Court needs to consider the Government's classified submissions in order to conduct a "searching judicial review" of the basis for and merits of the Government's assertion of the state secrets privilege. (rla) (Entered: 08/11/2011)
47 Joint STIPULATION for Extension of Time to Amend Complaint -
(Discovery), Complaint - (Discovery) 1 filed by Plaintiff Yasser Abdelrahim, Yassir Fazaga, Ali Uddin Malik. (Attachments: # 1 Proposed Order)(Bibring, Peter) (Entered: 08/29/2011)
48 ORDER by Judge Cormac J. Carney, granting Stipulation for Extension of Time to Amend 47 . Plaintiffs First Amended Complaint shall be due on September 13, 2011; See order for more information. (twdb) (Entered: 08/30/2011)
49 FIRST AMENDED COMPLAINT against defendants Paul Allen, Kevin Armstrong, Federal Bureau of Investigation, Steven M Martinez,

09/14/2011 09/21/2011 09/30/2011 10/03/2011 10/07/2011
11/03/2011 11/04/2011

Robert Mueller, Pat Rose, J Stephen Tidwell, Barbara Walls, Does 1-
10; amending Complaint - (Discovery) 1 ; filed by plaintiffs Ali Uddin Malik, Yasser Abdelrahim, Yassir Fazaga (Attachments: # 1
PART 2, # 2 PART 3)(rla) (Additional attachment(s) added on 9/15/2011: # 3 SUMMONS ISSUED) (rla). (Entered: 09/14/2011)

60 DAY Summons Issued re First Amended Complaint, 49 as to defendant(s) United States of America. (rla) (Entered: 09/15/2011)

50 NOTICE OF SERVICE filed by plaintiff Yasser Abdelrahim, Yassir

Fazaga, Ali Uddin Malik, re Amended Complaint, 49 9/13/2011. (Bibring, Peter) (Entered: 09/21/2011)

served on

51 Joint STIPULATION for Extension of Time to File Response to First Amended Complaint filed by Defendant Federal Bureau of Investigation, Steven M Martinez, Robert Mueller. (Attachments: # 1 Proposed Order)(Coppolino, Anthony) (Entered: 09/30/2011)

52 ORDER by Judge Cormac J. Carney, granting Stipulation for Extension of Time to File Response/Reply 51 . (twdb) (Entered: 10/05/2011)

53 PROOF OF SERVICE Executed by Plaintiff Ali Uddin Malik, Yasser Abdelrahim, Yassir Fazaga, upon Defendant United States of America served on 9/15/2011, answer due 11/14/2011. Service of the Summons and Complaint were executed upon the United States Attorneys Office by delivering a copy to Pat Myles. Executed upon the Attorney Generals Office of the United States by delivering a copy to Unknown. Executed upon the officer agency or corporation by delivering a copy to Unknown. Service was executed in compliance with Federal Rules of Civil Procedure. Due diligence declaration NOT attached. Registered or certified mail return receipt attached. Original Summons NOT returned. (Attachments: # 1 Exhibit Receipt for Mail to AG)(Bibring, Peter) (Entered: 10/07/2011)

54 NOTICE of Appearance filed by attorney Stephen E Handler on behalf of Defendant United States of America (Handler, Stephen) (Entered: 11/03/2011)

55 NOTICE OF MOTION AND MOTION to Dismiss Case Amended Complaint and for Summary Judgment filed by Government Defendants Federal Bureau of Investigation, Steven M Martinez, Robert Mueller, United States of America. Motion set for hearing on 1/30/2012 at 01:30 PM before Judge Cormac J. Carney. (Attachments:

11/04/2011 11/11/2011 11/11/2011 11/15/2011
11/15/2011

# 1 Declaration Christopher N. Morin, Federal Bureau of Investigation, # 2 Appendix Statement of Undisputed Facts)(Coppolino, Anthony) (Entered: 11/04/2011)

56 NOTICE OF LODGING filed of Classified Supplemental Declaration of Mark F. Giuliano, Federal Bureau of Investigation for In Camera, Ex Parte Review re MOTION to Dismiss Case Amended Complaint and

for Summary Judgment 55 11/04/2011)

(Coppolino, Anthony) (Entered:

57 NOTICE OF MOTION AND MOTION to Dismiss Case First Amended Class Action Complaint and Joinder in Motions to Dismiss by (1) Defendants United States of America, Federal Bureau of Investigation, Robert Mueller and Steven Martinez, and (2) Defendants Stephen Tidwell and Barbara Walls filed by Defendants Paul Allen, Kevin Armstrong, Pat Rose. Motion set for hearing on 1/30/2012 at 01:30 PM before Judge Cormac J. Carney. (Scheper, David) (Entered: 11/11/2011)

58 NOTICE OF MOTION AND MOTION to Dismiss Case First Amended Complaint filed by Defendants J Stephen Tidwell, Barbara Walls. Motion set for hearing on 1/30/2012 at 01:30 PM before Judge Cormac J. Carney. (Li, Peiyin) (Entered: 11/11/2011)

59 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed

Documents RE: MOTION to Dismiss Case 57 . The following error(s) was found: Local Rule 7.1-1 No Certification of Interested Parties and or no copies. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (db) (Entered: 11/15/2011)

60 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: MOTION to Dismiss Case First Amended

Complaint 58 . The following error(s) was found: Local Rule 7.1-1 No Certification of Interested Parties and or no copies. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (db) (Entered: 11/15/2011)

12/15/2011 12/16/2011 12/23/2011
12/23/2011 12/23/2011

61 STIPULATION for Order to Allow Parties to Combine Opposition or Reply Briefs on Motions to Dismiss filed by plaintiffs Yasser Abdelrahim, Yassir Fazaga, Ali Uddin Malik. (Attachments: # 1 Proposed Order Allowing Parties to Combine Oppositions Or Reply Briefs on Motions to Dismiss)(Bibring, Peter) (Entered: 12/15/2011)
62 ORDER by Judge Cormac J. Carney, ALLOWING PARTIES TO COMBINE OPPOSITION OR REPLY BRIEFS ON MOTIONS TO DISMISS re Stipulation 61 : In filing their oppositions to Defendants' dispositive motions challenging their First Amended Complaint (Dkt. Nos. 55, 57, and 58), Plaintiffs may combine any or all of their opposition briefs, or re-allocate pages between briefs, so long as the total number of pages of all opposition briefs filed does not exceed the total of 125 pages allowed in the Court's orders of July 20, 2011 (Dkt. No. 26) and October 3, 2011 (Dkt. No. 48). (See document for further details.) (rla) (Entered: 12/19/2011)
63 In Opposition re: MOTION to Dismiss Case First Amended Class Action Complaint and Joinder in Motions to Dismiss by (1) Defendants United States of America, Federal Bureau of Investigation, Robert Mueller and Steven Martinez, and (2) Defendants Stephen Tidwell and Ba MOTION to Dismiss Case First Amended Class Action Complaint and Joinder in Motions to Dismiss by (1) Defendants United States of America, Federal Bureau of Investigation, Robert Mueller and Steven
Martinez, and (2) Defendants Stephen Tidwell and Ba 57 ,
MOTION to Dismiss Case First Amended Complaint 58 filed by Plaintiffs Yasser Abdelrahim, Yassir Fazaga, Ali Uddin Malik. (Attachments: # 1 Attachment A - Claims Chart)(Bibring, Peter) (Entered: 12/23/2011)
64 MEMORANDUM in Opposition to MOTION to Dismiss
Case Amended Complaint and for Summary Judgment 55 filed by Plaintiffs Yasser Abdelrahim, Yassir Fazaga, Ali Uddin Malik.
(Attachments: # 1 Statement of Genuine Issues)(Arulanantham, Ahilan) (Entered: 12/23/2011)
65 DECLARATION of Ahilan Arulanantham In Opposition to MOTION to Dismiss Case First Amended Class Action Complaint and Joinder in Motions to Dismiss by (1) Defendants United States of America, Federal Bureau of Investigation, Robert Mueller and Steven Martinez, and (2) Defendants Stephen Tidwell and Ba MOTION to Dismiss Case First Amended Class Action Complaint and Joinder in Motions to Dismiss by (1) Defendants United States of America, Federal Bureau of

12/23/2011
01/06/2012 01/10/2012 01/20/2012

Investigation, Robert Mueller and Steven Martinez, and (2) Defendants
Stephen Tidwell and Ba 57 , MOTION to Dismiss Case First
Amended Complaint 58 , MOTION to Dismiss Case Amended
Complaint and for Summary Judgment 55 filed by Plaintiffs Yasser Abdelrahim, Yassir Fazaga, Ali Uddin Malik. (Attachments: # 1 Exhibit #1 - #3)(Arulanantham, Ahilan) (Entered: 12/23/2011)
66 DECLARATION of Craig Monteilh In Opposition to MOTION to Dismiss Case First Amended Class Action Complaint and Joinder in Motions to Dismiss by (1) Defendants United States of America, Federal Bureau of Investigation, Robert Mueller and Steven Martinez, and (2) Defendants Stephen Tidwell and Ba MOTION to Dismiss Case First Amended Class Action Complaint and Joinder in Motions to Dismiss by (1) Defendants United States of America, Federal Bureau of Investigation, Robert Mueller and Steven Martinez, and (2) Defendants
Stephen Tidwell and Ba 57 , MOTION to Dismiss Case First
Amended Complaint 58 , MOTION to Dismiss Case Amended
Complaint and for Summary Judgment 55 filed by Plaintiffs Yasser Abdelrahim, Yassir Fazaga, Ali Uddin Malik. (Arulanantham, Ahilan) (Entered: 12/23/2011)
67 Joint STIPULATION for Extension of Time to File Reply as to
MEMORANDUM in Opposition to Motion 64 , Objection/Opposition (Motion related), Objection/Opposition (Motion related), Objection/Opposition (Motion related) 63 filed by defendants Federal Bureau of Investigation, Steven M Martinez, Robert Mueller. (Attachments: # 1 Proposed Order)(Lee, Lynn) (Entered: 01/06/2012)
68 ORDER by Judge Cormac J. Carney, Extending Stipulation for Extension of Time to File Response/Reply 67 . It Is Ordered that Defendants respective replies to plaintiffs oppositions shall be due on January 20, 2012; A hearing on pending dispositive motions shall be held on February 10, 2012 at 10:00 a.m. ( Motion set for hearing on 2/10/2012 at 10:00 AM before Judge Cormac J. Carney.) (twdb) (Entered: 01/10/2012)
69 REPLY support MOTION to Dismiss Case Amended Complaint and
for Summary Judgment 55 Government Defendants' Reply in Support of Motion to Dismiss Amended Compaint and for Summary

01/20/2012
01/20/2012 02/02/2012
02/03/2012 02/06/2012

Judgment filed by Defendants Federal Bureau of Investigation, Steven M Martinez, Robert Mueller, United States of America. (Coppolino, Anthony) (Entered: 01/20/2012)
70 REPLY In Support Of MOTION to Dismiss Case First Amended Class Action Complaint and Joinder in Motions to Dismiss by (1) Defendants United States of America, Federal Bureau of Investigation, Robert Mueller and Steven Martinez, and (2) Defendants Stephen Tidwell and Ba MOTION to Dismiss Case First Amended Class Action Complaint and Joinder in Motions to Dismiss by (1) Defendants United States of America, Federal Bureau of Investigation, Robert Mueller and Steven
Martinez, and (2) Defendants Stephen Tidwell and Ba 57 filed by Defendants Paul Allen, Kevin Armstrong, Pat Rose. (Attachments: # 1 Attachment: 11/3/11 Opinion in Mirmehdi v. United States)(Scheper, David) (Entered: 01/20/2012)
71 REPLY IN SUPPORT OF MOTION to Dismiss Case First Amended
Complaint 58 filed by Defendants J Stephen Tidwell, Barbara Walls. (Li, Peiyin) (Entered: 01/20/2012)
72 MINUTE ORDER IN CHAMBERS REFERRAL OF MATTER FOR SETTLEMENT CONFERENCE by Magistrate Judge David T Bristow: At the request of the parties, this matter has been referred to the Honorable David T. Bristow, United States Magistrate Judge for purposes of settlement proceedings. The Honorable Victor B. Kenton shall remain as the Magistrate Judge assigned to this matter in all other respects. The parties are advised that Judge Bristow has agreed to act as the settlement officer in this matter. Counsel are directed to contact Judge Bristows Court Room Deputy, Deb Taylor at (951) 328-4466 for purposes of scheduling a settlement conference. (am) (Entered: 02/03/2012)
73 NOTICE OF SUPPLEMENTAL AUTHORITY OF INDIVIDUALCAPACITY DEFENDANTS J. STEPHEN TIDWELL AND BARBARA WALLS IN SUPPORT OF MOTION TO DISMISS FIRST AMENDED COMPLAINT filed by defendants J Stephen Tidwell, Barbara Walls. (Attachments: # 1 Exhibit A)(Michael, Brian) (Entered: 02/03/2012)
74 Joint STIPULATION to Continue Motions Hearing from February 10, 2012 to April 20, 2012 filed by Government Defendants Federal Bureau of Investigation, Steven M Martinez, Robert Mueller. (Attachments: # 1 Proposed Order)(Coppolino, Anthony) (Entered: 02/06/2012)

02/06/2012 02/07/2012 03/13/2012 03/27/2012 03/27/2012
03/29/2012
04/12/2012 04/13/2012

76 ORDER RE SETTLEMENT CONFERENCE by Magistrate Judge David T Bristow.( Settlement Conference set for 3/29/2012 at 09:30 AM before Magistrate Judge David T Bristow.) (mrgo) (Entered: 02/07/2012)
75 ORDER by Judge Cormac J. Carney, CONTINUING HEARING DATE re Stipulation to Continue 74 : Court ORDERS that the hearing on the pending dispositive motions filed by all Defendants shall be continued to April 20, 2012 at 10 a.m. (rla) (Entered: 02/07/2012)
77 CERTIFICATE of Interested Parties filed by Defendants J Stephen Tidwell, Barbara Walls, identifying J Stephen Tidwell; Hudson Specialty Insurance Company; Barbara Walls. (Michael, Brian) (Entered: 03/13/2012)
78 STIPULATION to Waive (Excuse) Attendance at Settlement Conference filed by Defendants Paul Allen, Kevin Armstrong, Pat Rose. (Attachments: # 1 Proposed Order)(Scheper, David) (Entered: 03/27/2012)
79 ORDER STIPULATION TO EXCUSE ATTENDANCE AT SETTLEMENT CONFERENCE by Magistrate Judge David T Bristow: Having reviewed the stipulation and request by the parties to excuse the presence of Defendants Pat Rose, Kevin Armstrong, Paul Allen, J. Stephen Tidwell and Barbara Walls and Plaintiffs Ali Uddin Malik and Yasser AbdelRahim, and good cause appearing, the Court hereby EXCUSES Defendants Rose, Armstrong, Allen, Tidwell and Walls and Plaintiffs Malik and AbdelRahim from attendance at the March 29, 2012 Settlement Conference. 78 (am) (Entered: 03/27/2012)
80 MINUTES OF SETTLEMENT CONFERENCE held before Magistrate Judge David T Bristow: Following consultation with the Court, and after significant discussionsbetween the Court and counsel, the parties were unable to agree upon settlement terms. The parties indicated that they would continue to discuss settlement terms, and would also provide tentative dates to the Court for a possible second settlement conference.Court Recorder: RS-4 03-29-12. (ad) (Entered: 04/04/2012)
81 STIPULATION to Continue Hearing on MTD from 04/20/2012 to 06/13/2012 filed by Plaintiff Yasser Abdelrahim, Yassir Fazaga, Ali Uddin Malik. (Attachments: # 1 Proposed Order to Continue Hearing on MTD)(Bibring, Peter) (Entered: 04/12/2012)
SCHEDULING NOTICE IN CHAMBERS by Magistrate Judge David T Bristow Second Settlement Conference set for 5/16/2012 09:30 AM before Magistrate Judge David T Bristow. THERE IS NO PDF

04/13/2012 04/30/2012 05/03/2012 05/14/2012 05/16/2012
05/17/2012

DOCUMENT ASSOCIATED WITH THIS ENTRY.(dts) TEXT ONLY ENTRY (Entered: 04/13/2012)
82 ORDER RE CONTINUING APRIL 20, 2012 HEARING by Judge Cormac J. Carney, re Stipulation 81 : Court hereby ORDERS that the hearing on the pending dispositive motions filed by all Defendants shall be continued to June 13, 2012, at 10 a.m. (rla) (Entered: 04/13/2012)
SCHEDULING NOTICE IN CHAMBERS by Magistrate Judge David T Bristow Telephone Status Conference set for 5/3/2012 09:30 AM before Magistrate Judge David T Bristow. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(dts) TEXT ONLY ENTRY (Entered: 04/30/2012)
83 MINUTES OF TELEPHONIC STATUS CONFERENCE RE SETTLEMENT CONFERENCE held before Magistrate Judge David T Bristow: The Court and counsel discussed the status of settlement, as well as preparations for the upcoming settlement conference.Court Recorder: RS-4 03-29-12. (ad) (Entered: 05/04/2012)
SCHEDULING NOTICE IN CHAMBERS by Magistrate Judge David T Bristow previously scheduled for 5/16/12 9:30 a.m. has been rescheduled. Settlement Conference set for 5/16/2012 09:15 AM before Magistrate Judge David T Bristow. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(dts) TEXT ONLY ENTRY (Entered: 05/14/2012)
85 MINUTES OF Settlement Conference held before Magistrate Judge David T Bristow:Following consultation with the Court, and after significant discussions between the Court and counsel, the parties were unable to agree upon settlement terms. The parties indicated that they would continue to discuss settlement terms, and would like to have a third settlement conference. The Court set a third settlement conference for May 31, 2012, at 10:00 a.m. without further notice. The Court encouraged counsel to continue to work towards a settlement, and offered to assist in any manner necessary, including engaging with the parties telephonically regarding settlement.Court Recorder: RS-4 0332-12. (am) (Entered: 05/22/2012)
84 NOTICE filed by defendants J Stephen Tidwell, Barbara Walls. NOTICE OF SUPPLEMENTAL AUTHORITY OF INDIVIDUAL-CAPACITY DEFENDANTS IN SUPPORT OF MOTIONS TO DISMISS FIRST AMENDED COMPLAINT (Attachments: # 1 Exhibit A)(Michael, Brian) (Entered: 05/17/2012)

05/31/2012 05/31/2012 06/04/2012 06/11/2012
06/12/2012

SCHEDULING NOTICE IN CHAMBERS by Magistrate Judge David T Bristow Third Settlement Conference previously scheduled for 5/31/12 9:30 a.m. has been rescheduled. Third Settlement Conference set for 6/14/2012 09:30 AM before Magistrate Judge David T Bristow. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(dts) TEXT ONLY ENTRY (Entered: 05/31/2012)
86 Joint STIPULATION to Continue Hearing on MTD from June 13, 2012 to July 19, 2012 filed by Plaintiffs Yasser Abdelrahim, Yassir Fazaga, Ali Uddin Malik. (Attachments: # 1 Proposed Order)(Bibring, Peter) (Entered: 05/31/2012)
87 ORDER by Judge Cormac J. Carney, granting Stipulation to Continue 86 . The hearings re Motion originally scheduled have been
rescheduled re 55 .( Motion set for hearing on 7/19/2012 at 10:00 AM before Judge Cormac J. Carney.) (twdb) (Entered: 06/04/2012)
SCHEDULING NOTICE IN CHAMBERS by Magistrate Judge David T Bristow Telephone Conference set for 6/12/2012 03:00 PM before Magistrate Judge David T Bristow. Please dial the telephone number below during the reservation date and time: Call-in Number:213.894.0800, Please follow the prompts and enter the codes below: Meeting ID:1114#User Password:3333#THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(dts) TEXT ONLY ENTRY (Entered: 06/11/2012)
88 MINUTES OF TELEPHONIC STATUS CONFERENCE RE SETTLEMENT CONFERENCE held before Magistrate Judge David T Bristow: The case was called for a telephonic status conference. Attorneys Peter Bibring, Ahilan T. Arulanantham, Laura Moran, and Reem Salahi appeared on behalf of plaintiffs. Assistant United States Attorneys Anthony Joseph Coppolino and Lynn Y. Lee appeared on behalf of defendants United States of America, Federal Bureau of Investigation, Robert Mueller, and Steven M. Martinez. Assistant United States Attorney Stephen E. Handler appeared on behalf of the United States of America. Attorneys Brian R. Michael, Carl J. Nichols, Peiyin Patty Li, and Katie Moran appeared on behalf of defendants J. Stephen Tidwell and Barbara Walls. Attorney Alexander H. Cote appeared on behalf of defendants Pat Rose, Kevin Armstrong, and Paul Allen. Also present were Federal Bureau of Investigation Attorneys Ted Schwartz and Kim Schwartz. Following discussion with counsel, the Court granted the request to continue the settlement conference that was previously scheduled for June 14, 2012 to June 19, 2012, at 9:00 a.m.Court Recorder: RS-4 06-12-12. (am) (Entered: 06/13/2012)

06/18/2012 06/26/2012 06/28/2012
06/29/2012 07/02/2012 07/06/2012

SCHEDULING NOTICE of Settlement Conference by Magistrate Judge David T Bristow previously scheduled for 06/19/2012 at 9:00 a.m. has been rescheduled. Settlement Conference set for 6/28/2012 at 9:00 a.m. before Magistrate Judge David T Bristow. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(dsb) TEXT ONLY ENTRY (Entered: 06/18/2012)
89 NOTICE OF SUPPLEMENTAL AUTHORITY IN SUPPORT OF MOTION TO DISMISS FIRST AMENDED COMPLAINT filed by defendants J Stephen Tidwell, Barbara Walls. (Attachments: # 1 Exhibit A)(Michael, Brian) (Entered: 06/26/2012)
92 MINUTES OF Settlement Conference held before Magistrate Judge David T Bristow: A third settlement conference was held as previously scheduled. Attorneys Peter Bibring, Ahilan T. Arulanantham, Laura Moran and Reem Salahi, appeared on behalf of plaintiffs. Assistant United States Attorney Anthony Joseph Coppolino appeared on behalf defendants United States of America, Federal Bureau of Investigation, Robert Mueller, and Steven M. Martinez. Also present was Federal Bureau of Investigation Attorneys Ted Schwartz. Following consultation with the Court, and after significant discussions between the Court and counsel, the parties were unable to agree upon settlement terms. The parties indicated that they would continue to discuss settlement terms, and the Court set a telephonic status conference for Friday, July 6, 2012. The Court encouraged counsel to confer with their clients and continue to work towards a settlement, and offered to assist in any manner necessary, including engaging with the parties telephonically regarding settlement. However, the Court also indicated that the parties had until July 6, 2012, to agree to settle the matter or the Court would conclude the Courts settlement process.Court Recorder: RS-4 06-28-12. (am) (Entered: 07/03/2012)
90 NOTICE of Change of Attorney Information for attorney Dan Stormer counsel for Plaintiff Yassir Fazaga. Changing firm name to Hadsell Stormer Richardson & Renick LLP. Filed by plaintiff Yassir Fazaga, et al. (Stormer, Dan) (Entered: 06/29/2012)
91 SCHEDULING NOTICE IN CHAMBERS by Magistrate Judge David T Bristow Telephone Conference set for 7/6/2012 09:30 AM before Magistrate Judge David T Bristow. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(dts) TEXT ONLY ENTRY (Entered: 07/02/2012)
93 NOTICE filed by DEFENDANTS Paul Allen, Kevin Armstrong, Pat Rose. NOTICE OF SUPPLEMENTAL AUTHORITY OF INDIVIDUALCAPACITY DEFENDANTS PAT ROSE, KEVIN ARMSTRONG AND

07/06/2012 07/06/2012 07/10/2012 07/11/2012
07/30/2012 08/03/2012

PAUL ALLEN IN SUPPORT OF MOTION TO DISMISS FIRST AMENDED COMPLAINT (Attachments: # 1 Exhibit)(Machala, Angela) (Entered: 07/06/2012)
94 IN CHAMBERS MINUTE ORDER CONTINUING HEARING ON DEFENDANTS MOTIONS TO DISMISS FIRST AMENDED
COMPLAINT 55 , 57 , 58 by Judge Cormac J. Carney: The Court hereby CONTINUES the hearing on Defendants motions to dismiss firstamended complaint from July 19, 2012 at 10:00 a.m. to August 3, 2012 at 9:00 a.m. (mu) (Entered: 07/06/2012)
96 MINUTES OF TELEPHONIC STATUS CONFERENCE RE SETTLEMENT CONFERENCE held before Magistrate Judge David T Bristow: The Court directed counsel to confer with their clients regarding the prospect of settling the action prior to the scheduled motion to dismiss on July 19, 2012.Court Recorder: RS-4 07-06-12. (ad) (Entered: 07/10/2012)
95 Joint STIPULATION to Continue Hearing on MTD from August 3, 2012 to August 14, 2012 filed by Plaintiff Yasser Abdelrahim, Yassir Fazaga, Ali Uddin Malik. (Attachments: # 1 Proposed Order)(Bibring, Peter) (Entered: 07/10/2012)
97 ORDER RE CONTINUING AUGUST 3, 2012 HEARING by Judge Cormac J. Carney: NOTE CHANGES HAVE BEEN MADE TO THIS DOCUMENT: Having reviewed the stipulation and request by the parties to reschedule the hearing date on all Defendants motions to
dismiss Plaintiffs First Amended Complaint 95 , the Court hereby ORDERS that the hearing on the pending dispositive motions filed by all Defendants shall be continued to August 14, 2012, at 9:00 a.m. (mu) (Entered: 07/11/2012)
98 NOTICE United States Correction to Memorandum in Support of Motion to Dismiss Amended Complaint and for Summary Judgment filed by Defendant United States of America. (Handler, Stephen) (Entered: 07/30/2012)
99 ORDER RE TRANSFER PURSUANT TO Local Rule 83-1.3.1 and General Order 08.05 -Related Case-, declining transfer filed. Related Case No: SACV07-01088 CJC (ANx). Transfer is DECLINED by Magistrate Judge Arthur Nakazato for the following reasons: Judge Bristow has already spent a substantial amount of time becoming familiar with the underlying facts, and it would be a waste of judicial resources to transfer the case to me at this juncture. Signed by Magistrate Judge Arthur Nakazato. (dro) (Entered: 08/03/2012)

08/07/2012

100 SUPPLEMENT AL AUTHORITY IN OPPOSITION TO INDIVIDUAL CAPACITY DEFENDANTS MOTIONS TO DISMISS filed by Plaintiffs Yasser Abdelrahim, Yassir Fazaga, Ali Uddin Malik. (Bibring, Peter) (Entered: 08/07/2012)

08/14/2012

101 ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS BASED ON THE STATE SECRETS PRIVILEGE by Judge Cormac J. Carney: (See document for details.) Accordingly, all of Plaintiffs causes of action against Defendants, aside from their FISA claim, are DISMISSED. (rla) (Entered: 08/14/2012)

08/14/2012

102 ORDER by Judge Cormac J. Carney, GRANTING IN PART DEFENDANTS' MOTIONS TO DISMISS PLAINTIFFS' FISA CLAIM: (See document for details.) For the foregoing reasons, with respect to Plaintiffs' FISA Section 1810 claim, the Government's motion to dismiss is GRANTED and the Agent Defendants' motions to dismiss are DENIED. (rla) (Entered: 08/14/2012)

08/14/2012

103 MINUTES OF Motion Hearing held before Judge Cormac J. Carney: Motion hearing held. RE: motions filed 11/4/11; 11/11/11; 11/11/11. Court confers with counsel and hears oral argument. Defendantsmotions to dismiss are taken under submission. Court Reporter: Maria Dellaneve. (twdb) (Entered: 08/15/2012)

08/17/2012

104 NOTICE of Withdrawal of Appearance of Brian R. Michael filed by Defendants J Stephen Tidwell, Barbara Walls. (Li, Peiyin) (Entered: 08/17/2012)

08/24/2012

105 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Notice (Other) 104 . The following error(s) was found: Incorrect event selected. The correct event is: Change of Attorney Information (G-06). Note: Wrong event does not provide relief or change sought. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (lt) (Entered: 08/24/2012)

08/27/2012 106 STIPULATION for Extension of Time to File Answer to October 27,

2012 re Amended Complaint, 49 filed by Defendants Kevin Armstrong. (Attachments: # 1 Proposed Order)(Cote, Alexander) (Entered: 08/27/2012)

08/29/2012

107 ORDER by Judge Cormac J. Carney, re Stipulation to Extend Time for Individual-Capacity Defendants to Answer the Tenth Cause of Action of the First amended Complaint 106 : Court ORDERS that the time for

Defendants J. Stephen Tidwell, Barbara Walls, Pat Rose, Kevin Armstrong, and Paul Allen to answer the Tenth Cause of Action of the First Amended Complaint shall be extended until October 27, 2012. (rla) (Entered: 08/29/2012)

08/29/2012

108 SCHEDULING NOTICE IN CHAMBERS by Magistrate Judge David T Bristow Telephone Conference set for 8/31/2012 10:00 AM before Magistrate Judge David T Bristow. Please follow the prompts and enter the codes below.Meeting ID:7002#User Password4115#THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(dts) TEXT ONLY ENTRY (Entered: 08/29/2012)

08/31/2012

109 MINUTES OF TELEPHONIC STATUS CONFERENCE RE SETTLEMENT CONFERENCE held before Magistrate Judge David T Bristow: Following discussion with counsel, the Court set a further settlement conference for October 4, 2012, at 9:00am. Counsel for the individual capacity defendants and the defendants themselves are not required to be present, although they may attend. The parties indicated that they will each separately contact the Court prior to October 4, 2012 to discuss settlement issues.Court Recorder: RS-4 08-31-12. (ad) (Entered: 08/31/2012)

10/04/2012

110 MINUTES OF CONTINUED SETTLEMENT CONFERENCE held before Magistrate Judge David T Bristow: At approximately 6:00 p.m., the parties concluded settlement discussions without reaching a settlement agreement. However, the parties did agree that the proposed settlement framework could lead to a settlement in this matter. It was anticipated that Counsel for Plaintiffs will contact Counsel for the Defendants within one week of todays date to discuss the potential terms of settlement. As discussed with the parties the Court will make itself available should either side wish to continue discussions on the four areas with Counsel in this matter.Court Recorder: RS-4 10-04-12. (am) (Entered: 10/11/2012)

10/12/2012 111 NOTICE filed by Individual-Capacity Defendants J Stephen Tidwell, Barbara Walls. Notice of Appeal (Moran, Katie) (Entered: 10/12/2012)

10/12/2012 112 NOTICE OF APPEAL to the 9th CCA filed by Individual-Capacity Defendants J Stephen Tidwell, Barbara Walls. Appeal of Order, 102

(Appeal fee FEE NOT PAID.) (Moran, Katie) (Entered: 10/12/2012)

10/12/2012 113 REPRESENTATION STATEMENT re Notice of Appeal to 9th Circuit Court of Appeals 112 . (Moran, Katie) (Entered: 10/12/2012)

10/12/2012

114 NOTICE filed by Individual-Capacity Defendants J Stephen Tidwell, Barbara Walls. NOTICE OF ERRATA (Moran, Katie) (Entered: 10/12/2012)

10/12/2012 115 NOTICE OF APPEAL to the 9th CCA filed by Defendants Paul Allen,

Kevin Armstrong, Pat Rose. Appeal of Order, 102 (Appeal fee of $455 receipt number 0973-11094403 paid.) (Attachments: # 1 Supplement)(Machala, Angela) (Entered: 10/12/2012)

10/12/2012

116 APPEAL FEE PAID: re Notice of Appeal to 9th Circuit Court of Appeals 112 as to Defendants J Stephen Tidwell, Barbara Walls; Receipt Number: SA006182 in the amount of $455. (car) (Entered: 10/16/2012)

10/16/2012

118 NOTIFICATION by Circuit Court of Appellate Docket Number 1256867, 9th CCA regarding Notice of Appeal to 9th Circuit Court of Appeals 112 as to Defendants J Stephen Tidwell, Barbara Walls. (car) (Entered: 10/17/2012)

10/16/2012

119 NOTIFICATION by Circuit Court of Appellate Docket Number 1256874 9th CCA regarding Notice of Appeal to 9th Circuit Court of Appeals 115 as to Defendants Paul Allen, Kevin Armstrong, Pat Rose. (dmap) (Entered: 10/17/2012)

10/17/2012

117 SCHEDULING NOTICE by Judge Cormac J. Carney. Status Conference set for 11/5/2012 at 3:00 PM before Judge Cormac J. Carney. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(mu) TEXT ONLY ENTRY (Entered: 10/17/2012)

10/29/2012

120 TRANSCRIPT ORDER as to Defendants Paul Allen, Kevin Armstrong, Pat Rose Court Reporter. Court will contact Melissa Vasquez at mvasquez@scheperkim,com with any questions regarding this order. Transcript portion requested: Other: Motion to Dismiss (8/14/12). Transcript preparation will not begin until payment has been satisfied with the court reporter/recorder. (Lowder, Amos) (Entered: 10/29/2012)

11/01/2012

121 NOTICE OF MOTION AND MOTION for Entry of Judgment pursuant to Rule 54(b) Partial filed by Plaintiff Yasser Abdelrahim, Yassir Fazaga, Ali Uddin Malik. Motion set for hearing on 12/10/2012 at 01:30 PM before Judge Cormac J. Carney. (Attachments: # 1 Memorandum, # 2 Proposed Order)(Bibring, Peter) (Entered: 11/01/2012)

11/01/2012 122 Joint STIPULATION to Stay Case pending Appeal by Individual Defendants filed by Plaintiff Yasser Abdelrahim, Yassir Fazaga, Ali

Uddin Malik. (Attachments: # 1 Proposed Order)(Bibring, Peter) (Entered: 11/01/2012)

11/02/2012

123 ORDER by Judge Cormac J. Carney, STAY OF FISA CLAIMS AND DATE OF STATUS CONFERENCE AND HEARING FOR PLAINTIFFS' MOTION FOR PARTIAL FINAL JUDGMENT, re Stipulation 122 : (NOTE: CHANGES MADE BY THE COURT): Court ORDERS that the FISA claims against the Individual Capacity Defendants be immediately stayed pending resolution of the appeal; that the Court will hear and subsequently rule on Plaintiffs' pending Motion for Issuance of Partial Final Judgment on Tuesday, December 11, 2012 at 4:30 p.m.; and that the November 5, 2012 status conference be continued until Tuesday, December 11, 2012 at 4:30 p.m. (rla) (Entered: 11/02/2012)

11/15/2012

124 MEMORANDUM in Opposition to MOTION for Entry of Judgment pursuant to Rule 54(b) Partial MOTION for Entry of Judgment pursuant to Rule 54(b) Partial 121 Government Defendants' Opposition to Plaintiffs' Motion for Issuance of Partial Final Judgment Pursuant to F.R.C.P. 54(b) filed by Defendants Federal Bureau of Investigation, Steven M Martinez, Robert Mueller, United States of America. (Coppolino, Anthony) (Entered: 11/15/2012)

11/27/2012

125 REPLY in support of MOTION for Entry of Judgment pursuant to Rule 54(b) Partial MOTION for Entry of Judgment pursuant to Rule 54(b) Partial 121 filed by Plaintiffs Yasser Abdelrahim, Yassir Fazaga, Ali Uddin Malik. (Arulanantham, Ahilan) (Entered: 11/27/2012)

11/29/2012

126 TRANSCRIPT for proceedings held on AUGUST 14, 2012. Court Reporter/Electronic Court Recorder: MARIA DELLANEVE, phone number 714-564-9259. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 12/20/2012. Redacted Transcript Deadline set for 12/30/2012. Release of Transcript Restriction set for 2/27/2013. (Dellaneve, Maria) (Entered: 11/29/2012)

11/29/2012

127 NOTICE OF FILING TRANSCRIPT filed for proceedings AUGUST 14, 2012 re Transcript 126 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(Dellaneve, Maria) TEXT ONLY ENTRY (Entered: 11/29/2012)

12/03/2012

128 ORDER by Judge Cormac J. Carney: GRANTING PLAINTIFFS' MOTION FOR ISSUANCE OF PARTIAL FINAL JUDGMENT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE

54(b) 121 : (See document for details.) For the foregoing reasons, The Court GRANTS Plaintiffs' motion for issuance of partial final judgment. The Court will sign and enter Plaintiffs' proposed order concurrently herewith. (rla) (Entered: 12/05/2012)

12/03/2012

129 PARTIAL FINAL JUDGMENT by Judge Cormac J. Carney, in favor of Federal Bureau of Investigation, United States of America, Barbara Walls, J Stephen Tidwell, Kevin Armstrong, Pat Rose, Paul Allen, Robert Mueller, Steven M Martinez. Related to: Order Granting Motion for Issuance of Partial Final Judgment pursuant to Rule 54(b, 128 . (rla) (Entered: 12/05/2012)

01/03/2013 130 NOTICE OF APPEAL to the 9th CCA filed by Plaintiff Yasser Abdelrahim, Yassir Fazaga, Ali Uddin Malik. Appeal of Judgment, 129

(Appeal fee of $455 receipt number 0973-11463653 paid.) (Bibring, Peter) (Entered: 01/03/2013)

01/03/2013

154 NOTIFICATION from Ninth Circuit Court of Appeals of case number assigned and briefing schedule. Appeal Docket No. 13-55017 assigned to Notice of Appeal to 9th Circuit Court of Appeals 130 as to plaintiffs Yasser Abdelrahim, Yassir Fazaga, Ali Uddin Malik. [Late Docketing due to Clerk Error.] (mat) (Entered: 07/29/2020)

01/29/2013

131 NOTICE of Change of Attorney Information for attorney Peter Bibring counsel for Plaintiffs Yasser Abdelrahim, Yassir Fazaga, Ali Uddin Malik. Adding Yaman Salahi as attorney as counsel of record for Yassir Fazaga; Ali Uddin Malik; Yasser AbdelRahim for the reason indicated in the G-06 Notice. Filed by Plaintiff Fazaga; Malik; AbdelRahim (Bibring, Peter) (Entered: 01/29/2013)

01/29/2013

132 MINUTE ORDER IN CHAMBERS by Judge Cormac J. Carney: Case should have been closed on entry dated November 2, 2012 123 . Make JS-6.(Made JS-6. Case Terminated.) (rla) (Entered: 01/29/2013)

02/04/2013

133 TRANSCRIPT ORDER as to Plaintiff Yasser Abdelrahim, Yassir Fazaga, Ali Uddin Malik Court Reporter. Court will contact Christian Lebano at clebano@aclu-sc.org with any questions regarding this order. Transcript portion requested: Other: 8/14/2012 MTD Hearing. Transcript preparation will not begin until payment has been satisfied with the court reporter/recorder. (Bibring, Peter) (Entered: 02/04/2013)

04/04/2013

134 SCHEDULING NOTICE IN CHAMBERS by Magistrate Judge David T. Bristow Telephone Conference set for 4/5/2013, 10:00 AM before Magistrate Judge David T. Bristow. Please dial 213.894.0800, Please follow the prompts and enter the codes, Meeting ID:7002#, User Password:6674#Note: To mute the Hold Music, the first participant in

the conference should enter *99 after entering the meeting and hearing the music. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(dts) TEXT ONLY ENTRY (Entered: 04/04/2013)

04/05/2013

135 MINUTES OF Telephone Conference held before Magistrate Judge David T. Bristow: A telephonic status conference regarding settlement was held as previously scheduled. Attorneys Ahilan T. Arulanantham and Peter Bibring appeared on behalf of plaintiffs. Assistant United States Attorneys Anthony Joseph Coppolino and Lynn Y.Lee appeared on behalf of the United States of America, Federal Bureau of Investigation, Robert Mueller, and Steven M. Martinez. Assistant United States Attorney Stephen F. Handler appeared on behalf of the United States of America.Attorney Annie L. Owens appeared on behalf of J. Stephen Tidwell and Barbara Walls. Attorney Alexander H. Cote appeared on behalf Pat Rose and Kevin Armstrong. The Court and counsel discussed the status on the case. Counsel indicated that further discussions with the Court would be beneficial, prior to scheduling any further settlement conference. Accordingly, defense counsel will contact the Court telephonically no later than April 30, 2013, and the Court will thereafter contact plaintiffs counsel regarding the settlement status. Thereafter, the Court will calendar a further settlement conference if it deems it appropriate.Court Recorder: RS-4 04-05-13. (am) (Entered: 04/11/2013)

06/03/2013

136 NOTICE of Withdrawal of Appearance of P. Patty Li filed by Defendants J Stephen Tidwell, Barbara Walls. (Moran, Katie) (Entered: 06/03/2013)

10/01/2013

137 Notice of Appearance or Withdrawal of Counsel: for attorney Annie L Owens counsel for Defendants J Stephen Tidwell, Barbara Walls. Annie L. Owens is no longer attorney of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Defendants Stephen Tidwell and Barbara Walls. (Owens, Annie) (Entered: 10/01/2013)

11/04/2013

138 SCHEDULING NOTICE IN CHAMBERS by Magistrate Judge David T. Bristow Telephone Settlement Conference set for 11/7/2013 10:00 AM before Magistrate Judge David T. Bristow. Call-in Number:213.894.0800, Please follow the prompts and enter the codes Meeting ID:1112#, User Password:7312#, THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (dts) TEXT ONLY ENTRY (Entered: 11/04/2013)

11/07/2013

139 MINUTES OF TELEPHONIC STATUS CONFERENCE RE SETTLEMENT held before Magistrate Judge David T. Bristow: The Court and counsel discussed the status on the case. The Court directed

counsel to confer and contact the Court with an updated status on Friday, November 8, 2013, at 11:30am. Court Recorder: RS-4 04-0513. (ad) (Entered: 11/08/2013)

11/12/2013

140 Notice of Appearance or Withdrawal of Counsel: for attorney Peter Bibring counsel for Plaintiffs Yasser Abdelrahim, Yassir Fazaga, Ali Uddin Malik. Yaman Salahi is no longer attorney of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Plaintiffs Peter Bibring. (Bibring, Peter) (Entered: 11/12/2013)

11/13/2013

141 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Notice (Other) 136 . The following error(s) was found: Incorrect event selected. The correct event is: Notices/Notice o Appearance or Withdrawal of Counsel (G-123). Note: Wrong event does not provide relief or changes sought. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (lt) (Entered: 11/13/2013)

12/16/2013

142 SCHEDULING NOTICE IN CHAMBERS by Magistrate Judge David T. Bristow Telephone Conference set for 12/19/2013 11:00 AM before Magistrate Judge David T. Bristow. Call-in Number:213.894.0800, Please follow the prompts and enter the codes.Meeting ID:1116#, User Password:5612#, THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (dts) TEXT ONLY ENTRY (Entered: 12/16/2013)

12/19/2013

143 MINUTES OF TELEPHONIC STATUS CONFERENCE RE SETTLEMENT held before Magistrate Judge David T. Bristow: The Court and counsel discussed the status on the case. The Court directed the government to provide a final statement, in light of plaintiffs previously-stated position regarding such, and to have a further telephonic conference with the plaintiffs regarding the same. Following the telephonic conference the Court and counsel shall confer regarding settlement status, and, accordingly, the Court set a further telephonic conference for January 7, 2014, at 11:00am. Court Recorder: RS-4 1219-13. (ad) (Entered: 12/30/2013)

01/02/2014

144 Telephone Conference set for 1/7/2014 11:00 AM before Magistrate Judge David T. Bristow. The call in number is 213-894-0800, please follow the prompts and enter the codes meeting id: 7002# and user password: 4524# THERE IS NO PDF DOCUMENT ASSOCIATED

WITH THIS ENTRY. (dts) TEXT ONLY ENTRY (Entered: 01/02/2014)

01/07/2014

145 MINUTES OF Telephonic Status Conference held before Magistrate Judge David T. Bristow: The Court and counsel discussed the status on the case. The Court ordered plaintiffs counsel to respond, in writing, to the governments most recent draft with red-line revisions within one week prior to determining that a settlement would not be possible. The Court set a further telephonic conference for January 17, 2014, at 11:00 a.m.Court Recorder: RS-3 01-07-14. (mrgo) (Entered: 01/10/2014)

01/15/2014

146 SCHEDULING NOTICE IN CHAMBERS by Magistrate Judge David T. Bristow Telephone Conference set for 1/17/2014 11:00 AM before Magistrate Judge David T. Bristow. Call in number is 213-894-0800, Meeting ID:1112#, and User Password:6154#:THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (dts) TEXT ONLY ENTRY (Entered: 01/15/2014)

01/17/2014

147 MINUTES OF Telephonic Status Conference held before Magistrate Judge David T. Bristow: Plaintiffs counsel informed the Court that they have been unable to agree with defense counsel on acceptable languagefor a proposed written statement regarding the settlement of the case, and that such a statement was a requirement of any proposed settlement. Accordingly, plaintiffscounsel believed any further settlement discussions regarding a global settlement would be futile. Defense counsel thereafter again inquired as to whether plaintiffs believed a settlement with only the individual plaintiffs was a possibility. Following further discussion, the Court thereafter directed counsel to confer as to whether a settlement between the plaintiffs and the individual defendants would be possible. The Court set a further telephonic conference for February 5, 2014, at 11:00 a.m.Court Recorder: RS-4 01-17-14. (dts) (Entered: 01/29/2014)

02/05/2014

148 MINUTES OF TELEPHONIC STATUS CONFERENCE RE SETTLEMENT held before Magistrate Judge David T. Bristow: Upon inquiry by the Court, the parties confirmed that they were unable to agree upon terms for a possible partial settlement of this action involving only the individual plaintiffs. Accordingly, the Court confirmed that settlement discussions had been exhausted, as it appeared that negotiations had reached an intractable impasse. The Court noted that the settlement discussions in this case had been extraordinary, and that they had encompassed nearly two years. Notwithstanding the absence of a settlement agreement, the Court advised the parties of its willingness to conduct further settlement negotiations in the future if the parties believed such efforts were warranted by any factual or procedural developments. The Clerk shall

serve a copy of this Order on the Ninth Circuit Court of Appeals settlement coordinator, Claudia Lynn Bernard. Court Recorder: RS-4 02-05-14. (ad) (Entered: 02/19/2014)

02/28/2019

149 OPINION from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals 115 filed by Paul Allen, Kevin Armstrong, Pat Rose, Notice of Appeal to 9th Circuit Court of Appeals 112 filed by Barbara Walls, J Stephen Tidwell, Notice of Appeal to 9th Circuit Court of Appeals 130 filed by Ali Uddin Malik, Yassir Fazaga, Yasser Abdelrahim. CCA # 12-56867, 12-56874, 1355017. The decision of the District Court is AFFIRMED in part, REVERSED in part, and REMANDED. (iv) (Entered: 02/28/2019)

07/20/2020

150 Order and Amended Opinion from Ninth Circuit Court of Appeals. The opinion filed on February 28, 2019, reported at 916 F.3d 1202, is hereby amended. An amended opinion is filed concurrently with this order re: Notice of Appeal to 9th Circuit Court of Appeals 112 filed by Barbara Walls, J Stephen Tidwell; Notice of Appeal to 9th Circuit Court of Appeals 115 filed by Paul Allen, Kevin Armstrong, Pat Rose; Notice of Appeal to 9th Circuit Court of Appeals 130 filed by Ali Uddin Malik, Yassir Fazaga, Yasser Abdelrahim. CCA # 12-56867; 1256874; 13-55017. We affirm in part and reverse in part the district court's orders, and remand for further proceedings in accordance with this opinion. [See document for completed details.] (lom) (Entered: 07/21/2020)

07/22/2020

151 Notice of Electronic Filing re USCA Memorandum/Opinion/Order,,, 150 e-mailed to Carl J Nichols at carl.nichols@wilmerhale.com bounced due to 5.1.0 - Unknown address error 550-'Invalid recipient. The primary e-mail address associated with the attorney record has been deleted. Pursuant to Local Rules it is the attorneys obligation to maintain all personal contact information including e-mail address in the CM/ECF system. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (ir) TEXT ONLY ENTRY (Entered: 07/22/2020)

07/23/2020

152 Notice of Electronic Filing re Text Only Bounced Notice of Electronic Filing E-mail,, 151 e-mailed to Reem Salahi at reem@hadsellstormer.com bounced due to 5.1.0 - Unknown address error 550-'invalid mailbox. The primary e-mail address associated with the attorney record has been deleted. Pursuant to Local Rules it is the attorneys obligation to maintain all personal contact information including e-mail address in the CM/ECF system. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (ir) TEXT ONLY ENTRY (Entered: 07/23/2020)

07/23/2020

153 Notice of Appearance or Withdrawal of Counsel: for attorney Katie Moran counsel for Defendants J Stephen Tidwell, Barbara Walls. Carl J. Nichols is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by defendants J. Stephen Tidwell, Barbara Walls. (Moran, Katie) (Entered: 07/23/2020)

07/28/2020

155 MANDATE of Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals 115 , Notice of Appeal to 9th Circuit Court of Appeals 112 , Notice of Appeal to 9th Circuit Court of Appeals 130 , CCA # 12-56867, 12-56874 and 13-55017. The judgment of this Court, entered February 28, 2019 and amended July 20, 2020, takes effect this date. This constitutes the formal mandate of this Court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. [See USCA Opinion 149 , and USCA Order and Amended OPINION 150 , AFFIRMED in part, REVERSED in part, and REMANDED.](mat) (Entered: 07/29/2020)

08/12/2020

156 MINUTE ORDER IN CHAMBERS by Judge Cormac J. Carney: ORDER SETTING TELEPHONIC STATUS CONFERENCE. The Courtroom deputy shall provide the parties with the dial-in directions prior to the hearing. ( Telephonic Status Conference set for 8/18/2020 at 10:00 AM before Judge Cormac J. Carney.) (twdb) (Entered: 08/13/2020)

08/13/2020

157 Notice of Appearance or Withdrawal of Counsel: for attorney Mohammad K Tajsar counsel for Plaintiffs Yasser Abdelrahim, Yassir Fazaga, Ali Uddin Malik. Adding Mohammad Tajsar as counsel of record for Yassir Fazaga, Ali Uddin Malik, and Yasser Abdelrahim for the reason indicated in the G-123 Notice. Filed by Plaintiffs Yassir Fazaga, Ali Uddin Malik, and Yasser Abdelrahim. (Attorney Mohammad K Tajsar added to party Yasser Abdelrahim(pty:pla), Attorney Mohammad K Tajsar added to party Yassir Fazaga(pty:pla), Attorney Mohammad K Tajsar added to party Ali Uddin Malik(pty:pla))(Tajsar, Mohammad) (Entered: 08/13/2020)

08/13/2020

158 APPLICATION of Non-Resident Attorney Catherine M.A. Carroll to Appear Pro Hac Vice on behalf of Defendants J Stephen Tidwell, Barbara Walls (Pro Hac Vice Fee - $400 Fee Paid, Receipt No. ACACDC-27618446) filed by Defendants J Stephen Tidwell, Barbara Walls. (Attachments: # 1 Proposed Order) (Moran, Katie) (Entered: 08/13/2020)

08/14/2020

159 Notice of Appearance or Withdrawal of Counsel: for attorney Amos Alexander Lowder counsel for Defendants Paul Allen, Kevin Armstrong, Pat Rose. Filed by Defendants Pat Rose, Kevin Armstrong,

and Paul Allen. (Attorney Amos Alexander Lowder added to party Paul Allen(pty:dft), Attorney Amos Alexander Lowder added to party Kevin Armstrong(pty:dft))(Lowder, Amos) (Entered: 08/14/2020)

08/17/2020

160 ORDER by Judge Cormac J. Carney: Granting 158 Non-Resident Attorney Catherine M.A. Carroll APPLICATION to Appear Pro Hac Vice on behalf of J. Stephen Tidwell and Barbara Walls Defendants, designating Katie Moran as local counsel. (twdb) (Entered: 08/17/2020)

08/18/2020

161 NOTICE of Appearance filed by attorney Joseph J DeMott on behalf of Defendants Federal Bureau of Investigation, Steven M Martinez, Robert Mueller, United States of America (Attorney Joseph J DeMott added to party Federal Bureau of Investigation(pty:dft), Attorney Joseph J DeMott added to party Steven M Martinez(pty:dft), Attorney Joseph J DeMott added to party Robert Mueller(pty:dft), Attorney Joseph J DeMott added to party United States of America(pty:dft))(DeMott, Joseph) (Entered: 08/18/2020)

08/18/2020

162 MINUTES OF STATUS CONFERENCE held before Judge Cormac J. Carney. Status Conference held. The Court and counsel confer. The parties shall submit their reports as stated on the record by August 28, 2020. Court Reporter: Debbie Hino-Spaan. (lom) (Entered: 08/25/2020)

08/31/2020 163 STATUS REPORT (JOINT) filed by Defendants Paul Allen, Kevin Armstrong, Pat Rose. (Cote, Alexander) (Entered: 08/31/2020)

09/01/2020

164 NOTICE OF MOTION AND MOTION to Stay Case pending Petition for Writ of Certiorari filed by Government Defendants Federal Bureau of Investigation, Steven M Martinez, Robert Mueller, United States of America. Motion set for hearing on 10/5/2020 at 01:30 PM before Judge Cormac J. Carney. (Attachments: # 1 Memorandum, # 2 Proposed Order) (DeMott, Joseph) (Entered: 09/01/2020)

09/14/2020

165 Opposition re: NOTICE OF MOTION AND MOTION to Stay Case pending Petition for Writ of Certiorari 164 filed by Plaintiffs Yasser Abdelrahim, Yassir Fazaga, Ali Uddin Malik. (Tajsar, Mohammad) (Entered: 09/14/2020)

09/21/2020

166 REPLY in support of NOTICE OF MOTION AND MOTION to Stay Case pending Petition for Writ of Certiorari 164 filed by Defendants Federal Bureau of Investigation, Steven M Martinez, Robert Mueller, United States of America. (DeMott, Joseph) (Entered: 09/21/2020)

09/25/2020

167 NOTICE of Change of Attorney Business or Contact Information: for attorney Katie Moran counsel for Defendants J Stephen Tidwell, Barbara Walls. Changing Address to 350 South Grand Avenue, Suite

2400 Los Angeles, CA 90071. Filed by Defendants J Stephen Tidwell, Barbara Walls. (Moran, Katie) (Entered: 09/25/2020)

09/29/2020

168 ORDER by Judge Cormac J. Carney: GRANTING GOVERNMENT DEFENDANTS MOTION FOR STAY OF PROCEEDINGS PENDING PETITION FOR WRIT OF CERTIORARI [Dkt. 164 AND STAYING CASE AS TO ALL CLAIMS AND PARTIES. SEE DOCUMENT FOR FURTHER INFORMATION. (twdb) (Entered: 09/30/2020)

10/09/2020

169 Notice of Appearance or Withdrawal of Counsel: for attorney Amr Shabaik counsel for Plaintiffs Yasser Abdelrahim, Yassir Fazaga, Ali Uddin Malik. Adding Amr Shabaik as counsel of record for Yassir Fazaga, Ali Uddin Malik, Yasser Abdelrahim for the reason indicated in the G-123 Notice. Filed by Plaintiff Yassir Fazaga. (Attorney Amr Shabaik added to party Yasser Abdelrahim(pty:pla), Attorney Amr Shabaik added to party Yassir Fazaga(pty:pla), Attorney Amr Shabaik added to party Ali Uddin Malik(pty:pla))(Shabaik, Amr) (Entered: 10/09/2020)

10/09/2020

170 Notice of Appearance or Withdrawal of Counsel: for attorney Dina Chehata counsel for Plaintiffs Yasser Abdelrahim, Yassir Fazaga, Ali Uddin Malik. Adding Dina Chehata as counsel of record for Yassir Fazaga, Ali Uddin Malik, Yasser Abdelrahim for the reason indicated in the G-123 Notice. Filed by Plaintiff Yassir Fazaga. (Attorney Dina Chehata added to party Yasser Abdelrahim(pty:pla), Attorney Dina Chehata added to party Yassir Fazaga(pty:pla), Attorney Dina Chehata added to party Ali Uddin Malik(pty:pla))(Chehata, Dina) (Entered: 10/09/2020)

 
 FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

YASSIR FAZAGA; ALI UDDIN MALIK; YASSER ABDELRAHIM,
Plaintiffs-Appellees,
v.

No. 12-56867
D.C. No. 8:11-cv-00301-
CJC-VBK

FEDERAL BUREAU OF INVESTIGATION; CHRISTOPHER A. WRAY, Director of the Federal Bureau of Investigation, in his official capacity; PAUL DELACOURT, Assistant Director in Charge, Federal Bureau of Investigation’s Los Angeles Division, in his official capacity; PAT ROSE; KEVIN ARMSTRONG; PAUL ALLEN,
Defendants,

and

BARBARA WALLS; J. STEPHEN TIDWELL,
Defendants-Appellants.

2

FAZAGA V. WALLS

YASSIR FAZAGA; ALI UDDIN MALIK; YASSER ABDELRAHIM,
Plaintiffs-Appellees,
v.

No. 12-56874
D.C. No. 8:11-cv-00301-
CJC-VBK

FEDERAL BUREAU OF INVESTIGATION; CHRISTOPHER A. WRAY, Director of the Federal Bureau of Investigation, in his official capacity; PAUL DELACOURT, Assistant Director in Charge, Federal Bureau of Investigation’s Los Angeles Division, in his official capacity; J. STEPHEN TIDWELL; BARBARA WALLS,
Defendants,

and

PAT ROSE; KEVIN ARMSTRONG; PAUL ALLEN,
Defendants-Appellants.

FAZAGA V. WALLS

3

YASSIR FAZAGA; ALI UDDIN MALIK; YASSER ABDELRAHIM,
Plaintiffs-Appellants,
v.

No. 13-55017
D.C. No. 8:11-cv-00301-
CJC-VBK

FEDERAL BUREAU OF INVESTIGATION; CHRISTOPHER A. WRAY, Director of the Federal Bureau of Investigation, in his official capacity; PAUL DELACOURT, Assistant Director in Charge, Federal Bureau of Investigation’s Los Angeles Division, in his official capacity; J. STEPHEN TIDWELL; BARBARA WALLS; PAT ROSE; KEVIN ARMSTRONG; PAUL ALLEN; UNITED STATES OF AMERICA,
Defendants-Appellees.

OPINION

Appeal from the United States District Court for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted December 7, 2015 Pasadena, California
Filed February 28, 2019

4

FAZAGA V. WALLS

Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges and George Caram Steeh III,* Senior District Judge.

Opinion by Judge Berzon

SUMMARY**

Constitutional Law / Foreign Intelligence Surveillance Act
The panel affirmed in part and reversed in part the district court’s judgment in favor of the United States, the FBI, and federal officials in a putative class action alleging that an FBI investigation involved unlawful searches and anti-Muslim discrimination.
Plaintiffs are three Muslim residents of Southern California who alleged that the FBI paid a confidential informant to conduct a covert surveillance program that gathered information about Muslims based solely on their religious identity. Plaintiffs asserted eleven claims, which fell into two categories: claims alleging unconstitutional searches, and claims alleging unlawful religious discrimination. The district court dismissed all but one of plaintiffs’ claims on the basis of the state secrets privilege,

* The Honorable George Caram Steeh III, Senior District Judge for the U.S. District Court for the Eastern District of Michigan, sitting by designation.
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

FAZAGA V. WALLS

5

and allowed only the Foreign Intelligence Surveillance Act (“FISA”) claim against the FBI Agent Defendants to proceed.

The panel held that some of the claims the district court dismissed on state secret grounds should not have been dismissed outright. The panel further held that the district court should have reviewed any state secrets evidence necessary for a determination of whether the alleged surveillance was unlawful following the secrecy-protective procedure set forth in FISA. See 50 U.S.C. § 1806(f).

Section 110 of FISA, codified at 50 U.S.C. § 1810, creates a private right of action for an individual subjected to electronic surveillance in violation of FISA’s procedures. Concerning the FISA claim against the Agent Defendants, the panel considered three categories of audio and video surveillance called in the complaint: recordings made by the FBI informant of conversations to which he was a party; recordings made by the informant of conversations to which he was not a party; and recordings made by devices planted by FBI agents. The panel concluded that the Agent Defendants were entitled to qualified immunity as to the first two categories of surveillance. As to the third category of surveillance, the panel held that Agents Allen and Armstrong were not entitled to qualified immunity, but Agents Tidwell, Walls, and Rose were entitled to dismissal as to this category of surveillance because plaintiffs did not plausibly allege their involvement in this category of surveillance.

The panel next addressed the remaining claims, which were all dismissed pursuant to the state secrets privilege. First, the panel held that in determining sua sponte that particular claims warranted dismissal under the state secrets privilege, the district court erred. Second, the panel held that

6

FAZAGA V. WALLS

in enacting FISA, Congress displaced the common law dismissal remedy created by the United States v. Reynolds, 345 U.S. 1 (1953), state secrets privilege as applied to electronic surveillance within FISA’s purview. The panel held that FISA’s § 1806(f) procedures were to be used when an aggrieved person affirmatively challenges, in any civil case, the legality of electronic surveillance or its use in litigation, whether the challenge is under FISA itself, the Constitution, or any other law. Third, the panel held that the plaintiffs were considered “aggrieved” for purposes of FISA.

The panel next considered whether the claims other than the FISA § 1810 claim must be dismissed for reasons other than the state secrets privilege, limited to reasons raised by the defendants’ motions to dismiss.

Addressing plaintiffs’ Fourth Amendment search claims, the panel first held that the expungement relief sought by plaintiffs – the expungement of all records unconstitutionally obtained and maintained – was available under the Constitution to remedy the alleged constitutional violations. Because the government raised no other argument for dismissal of the Fourth Amendment injunctive relief claim, it should not have been dismissed. Second, the panel held that in light of the overlap between plaintiffs’ Bivens claim and the narrow range of the remaining FISA claims against the Agent Defendants that can proceed, it was not clear whether plaintiffs would continue to press this claim. The panel declined to address whether plaintiffs’ Bivens claim remained available after the Supreme Court’s decision in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), and held that on remand the district court may determine whether a Bivens remedy is appropriate for any Fourth Amendment claim against the Agent Defendants.

FAZAGA V. WALLS

7

Addressing plaintiffs’ claims arising from their allegations that they were targeted for surveillance solely because of their religion, the panel first held that the First Amendment and Fifth Amendment injunctive relief claims against the official-capacity defendants may go forward. Second, concerning plaintiffs’ Bivens claims seeking monetary damages directly under the First Amendment’s Establishment and Free Exercise Clauses and the equal protection component of the Fifth Amendment’s Due Process Clause, the panel concluded that the Privacy Act and the Religious Freedom and Restoration Act (“RFRA”), taken together, provided an alternative remedial scheme for some, but not all, of their Bivens claims. As to the remaining Bivens claims, the panel remanded to the district court to determine whether a Bivens remedy was available in light of the Supreme Court’s decision in Abbasi. Third, concerning plaintiffs’ 42 U.S.C. § 1985(c) claims, alleging that the Agent Defendants conspired to deprive plaintiffs of their First and Fifth Amendment constitutional rights, the panel held that under Abassi, intracorporate liability was not clearly established at the time of the events in this case and the Agent Defendants were therefore entitled to qualified immunity from liability under § 1985(c). The panel affirmed the district court’s dismissal on this ground. Fourth, concerning plaintiffs’ claims that Agent Defendants and Government Defendants violated RFRA by substantially burdening plaintiffs’ exercise of religion, and did so without a compelling government interest without the least restrictive means, the panel held that it was not clearly established in 2006 or 2007 that defendants’ covert surveillance violated plaintiffs’ freedom of religion protected by RFRA. The panel affirmed the district court’s dismissal of the RFRA claim as to the Agent Defendants because they were not on notice of a possible RFRA violation. Because the Government

8

FAZAGA V. WALLS

Defendants were not subject to the same qualified immunity analysis and made no arguments in support of dismissing the RFRA claim, other than the state secrets privilege, the panel held that the complaint stated a RFRA claim against the Government Defendants. Fifth, concerning plaintiffs’ allegation that the FBI violated the Privacy Act by collecting and maintaining records describing how plaintiff exercised their First Amendment rights, the panel held that plaintiffs failed to state a claim because the sole requested remedy – injunctive relief – is unavailable for a claimed violation of 5 U.S.C. § 552a(e)(7). Sixth, concerning plaintiffs’ claims under the Federal Tort Claims Act (“FTCA”), the panel held that the FTCA judgment bar provision had no application in this case. The panel further held that it could not determine the applicability of the FTCA’s discretionary function exception at this stage in the litigation, and that the district court may make a determination of applicability on remand. The panel declined to discuss whether plaintiffs substantively stated claims as to the state laws underlying the FTCA claim.

COUNSEL
Carl J. Nichols (argued) and Howard M. Shapiro, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.; Katie Moran, Wilmer Cutler Pickering Hale and Dorr LLP, Los Angeles, California; for Defendants-Appellants/CrossAppellees Barbara Walls and J. Stephen Tidwell.
Alexander H. Cote (argued), Amos A. Lowder, Angela M. Machala, and David C. Scheper, Scheper Kim & Harris LLP, Los Angeles, California, for Defendants-Appellants/CrossAppellees Pat Rose, Paul Allen, and Kevin Armstrong.

FAZAGA V. WALLS

9

Ahilan Arulanantham (argued), Peter Birbring (argued), and Catherine A. Wagner, ACLU Foundation of Southern California, Los Angeles, California; Ameena Mirza Qazi and Fatima Dadabhoy, Council on American-Islamic Relations, Anaheim, California; Dan Stormer and Mohammad Tajsar, Hadsell Stormer Keeny & Renick LLP, Pasadena, California; for Plaintiffs-Appellees/Cross-Appellants.

Douglas N. Letter (argued), Daniel Tenny, and Mark B. Stern, Appellate Staff; Stephanie Yonekura, Acting United States Attorney; Civil Division, United States Department of Justice, Washington, D.C., for Defendants-Appellees Federal Bureau of Investigation, Christopher A. Wray, and Paul Delacourt.

Richard R. Wiebe, Law Office of Richard R. Wiebe, San Francisco, California; Thomas E. Moore III, Royse Law Firm PC, Palo Alto, California; David Greene, Andrew Crockner, Mark Rumold, James S. Tyre, Kurt Opsahl, Lee Tien, and Cindy Cohn, Electronic Frontier Foundation, San Francisco, California; for Amicus Curiae Electronic Frontier Foundation.

10

FAZAGA V. WALLS

OPINION

BERZON, Circuit Judge:

TABLE OF CONTENTS

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

I. Factual Background. . . . . . . . . . . . . . . . . . . . . . . . 16

II. Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . 21

DISCUSSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

I. The FISA Claim Against the Agent Defendants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

A. Recordings of Conversations to Which Monteilh Was a Party. . . . . . . . . . . . . . . . . . . . . . . . . . . 31

B. Recordings of Conversations in the Mosque Prayer Hall to Which Monteilh Was Not a Party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

C. Recordings Made by Planted Devices. . . . . . . 40

II. The State Secrets Privilege and FISA Preemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

A. The State Secrets Privilege. . . . . . . . . . . . . . . 46

FAZAGA V. WALLS

11

B. The District Court’s Dismissal of the Search Claims Based on the State Secrets Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

C. FISA Displacement of the State Secrets Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

D. Applicability of FISA’s § 1806(f) Procedures to Affirmative Legal Challenges to Electronic Surveillance. . . . . . . . . . . . . . . . . . . . . . . . . . . 62

E. Aggrieved Persons. . . . . . . . . . . . . . . . . . . . . . 71

III. Search Claims. . . . . . . . . . . . . . . . . . . . . . . . . 72

A. Fourth Amendment Injunctive Relief Claim Against the Official-Capacity Defendants. . . . 72

B. Fourth Amendment Bivens Claim Against the Agent Defendants.. . . . . . . . . . . . . . . . . . . . . . 76

IV. Religion Claims. . . . . . . . . . . . . . . . . . . . . . . . 78

A. First Amendment and Fifth Amendment Injunctive Relief Claims Against the OfficialCapacity Defendants. . . . . . . . . . . . . . . . . . . . 78

B. First Amendment and Fifth Amendment Bivens Claims Against the Agent Defendants. . . . . . . 79

C. 42 U.S.C. § 1985(3) Claims Against the Agent Defendants. . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

12

FAZAGA V. WALLS

D. Religious Freedom Restoration Act Claim Against the Agent Defendants and Government Defendants. . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

E. Privacy Act Claim Against the FBI. . . . . . . . . 92

F. FTCA Claims. . . . . . . . . . . . . . . . . . . . . . . . . . 94

1. FTCA Judgment Bar. . . . . . . . . . . . . . . . . 95

2. FTCA Discretionary Function Exception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

V. Procedures on Remand. . . . . . . . . . . . . . . . . . . . . 97

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102

FAZAGA V. WALLS

13

BERZON, Circuit Judge:

INTRODUCTION

Three Muslim residents of Southern California allege that, for more than a year, the Federal Bureau of Investigation (“FBI”) paid a confidential informant to conduct a covert surveillance program that gathered information about Muslims based solely on their religious identity. The three plaintiffs filed a putative class action against the United States, the FBI, and two FBI officers in their official capacities (“Government” or “Government Defendants”), and against five FBI agents in their individual capacities (“Agent Defendants”). Alleging that the investigation involved unlawful searches and anti-Muslim discrimination, they pleaded eleven constitutional and statutory causes of action.1

The Attorney General of the United States asserted the state secrets privilege with respect to three categories of evidence assertedly at issue in the case, and the Government moved to dismiss the discrimination claims pursuant to that privilege. The Government expressly did not move to dismiss the Fourth Amendment and Foreign Intelligence Surveillance Act (“FISA”) unlawful search claims based on the privilege. Both the Government and the Agent Defendants additionally moved to dismiss Plaintiffs’ discrimination and unlawful search claims based on arguments other than the privilege.

1 Specifically, the Plaintiffs alleged violations of the First Amendment’s Establishment Clause and Free Exercise Clauses; the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.; the equal protection component of the Fifth Amendment’s Due Process Clause; the Privacy Act, 5 U.S.C. § 552a; the Fourth Amendment; the Foreign Intelligence Service Act, 50 U.S.C. § 1810; and the Federal Tort Claims Act, 28 U.S.C. § 1346.

14

FAZAGA V. WALLS

The district court dismissed all but one of Plaintiffs’ claims on the basis of the state secrets privilege—including the Fourth Amendment claim, although the Government Defendants had not sought its dismissal on privilege grounds. The district court allowed only the FISA claim against the Agent Defendants to proceed. Plaintiffs appeal the dismissal of the majority of their claims, and the Agent Defendants appeal the denial of qualified immunity on the FISA claim.

We conclude that some of the claims dismissed on state secrets grounds should not have been dismissed outright. Instead, the district court should have reviewed any state secrets evidence necessary for a determination of whether the alleged surveillance was unlawful following the secrecyprotective procedure set forth in FISA. See 50 U.S.C. § 1806(f). After addressing Defendants’ other arguments for dismissing Plaintiffs’ claims, we conclude that some of Plaintiffs’ allegations state a claim while others do not. Accordingly, we remand to the district court for further proceedings on the substantively stated claims.

BACKGROUND

At this stage in the litigation, we “construe the complaint in the light most favorable to the plaintiff[s], taking all [their] allegations as true and drawing all reasonable inferences from the complaint in [their] favor.” Doe v. United States, 419 F.3d 1058, 1062 (9th Cir. 2005). “Conclusory allegations and unreasonable inferences, however, are insufficient to defeat a motion to dismiss.” Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007).

Plaintiffs are three Muslims who were residents of Southern California: Sheikh Yassir Fazaga, Ali Uddin Malik,

FAZAGA V. WALLS

15

and Yasser AbdelRahim. Fazaga was, at the times relevant to this litigation, an imam at the Orange County Islamic Foundation (“OCIF”), a mosque in Mission Viejo, California. Malik and AbdelRahim are practicing Muslims who regularly attended religious services at the Islamic Center of Irvine (“ICOI”).

The complaint sought relief against the United States, the FBI, and two federal officials named in their official capacities, as well as five individual Agent Defendants—Kevin Armstrong, Paul Allen, J. Stephen Tidwell, Barbara Walls, and Pat Rose—named in their individual capacities. Armstrong and Allen were FBI Special Agents assigned to the Orange County areas; Tidwell was the Assistant Director in Charge of the FBI’s Los Angeles Field Office from August 2005 to December 2007; Walls was the Special Agent in Charge of the FBI’s Santa Ana branch office, a satellite office of the FBI’s Los Angeles field office; and Rose was a Special Agent assigned to the FBI’s Santa Ana branch office.

Because of the sensitivity of the issues in this case, we particularly stress the usual admonition that accompanies judicial determination on motions to dismiss a complaint: the facts recited below come primarily from Plaintiffs’ allegations in their complaint.2 The substance of those allegations has not been directly addressed by the defendants. At this point in the litigation, the truth or falsity of the allegations therefore is entirely unproven.

2 In addition to the facts alleged in the complaint, this opinion at some points refers to facts contained in two public declarations submitted by the Government in support of its invocation of the state secrets privilege.

16

FAZAGA V. WALLS

I. Factual Background

For at least fourteen months in 2006 and 2007, the FBI paid a confidential informant named Craig Monteilh to gather information as part of a counterterrorism investigation known as Operation Flex. Plaintiffs allege that Operation Flex was a “dragnet surveillance” program, the “central feature” of which was to “gather information on Muslims.”3

At some point before July 2006, Stephen Tidwell, then the Assistant Director in Charge of the FBI’s Los Angeles Field Office, authorized first the search for an informant and later the selection of Monteilh as that informant. Once selected, Monteilh was supervised by two FBI handlers, Special Agents Kevin Armstrong and Paul Allen.

In July 2006, Monteilh began attending ICOI. As instructed by Allen and Armstrong, Monteilh requested a meeting with ICOI’s imam, represented that he wanted to convert to Islam, and later publicly declared his embrace of Islam at a prayer service. Monteilh subsequently adopted the name Farouk al-Aziz and began visiting ICOI daily, attending prayers, classes, and special events. He also visited “with some regularity” several other large mosques in Orange County.

3 In a public declaration, the FBI frames Operation Flex differently, contending that it “focused on fewer than 25 individuals and was directed at detecting and preventing possible terrorist attacks.” The FBI maintains that the goal of Operation Flex “was to determine whether particular individuals were involved in the recruitment and training of individuals in the United States or overseas for possible terrorist activity.”

FAZAGA V. WALLS

17

Armstrong and Allen closely supervised Monteilh during the course of Operation Flex, explaining to him the parameters and goals of the investigation. Monteilh was“to gather information on Muslims in general,” using information-gathering and surveillance tactics. The agents provided him with the tools to do so, including audio and video recording devices. They also gave Monteilh general goals, such as obtaining contact information from a certain number of Muslims per day, as well as specific tasks, such as entering a certain house or having lunch with a particular person. Sometimes, Allen and Armstrong prepared photo arrays with hundreds of Muslim community members and asked Monteilh to arrange the photos from most to least dangerous.

Armstrong and Allen did not, however, limit Monteilh to specific targets. Rather, “they repeatedly made clear that they were interested simply in Muslims.” Allen told Monteilh, “We want to get as many files on this community as possible.” To the extent Allen and Armstrong expressed an interest in certain targets, it was in particularly religious Muslims and persons who might influence young Muslims. When Monteilh’s surveillance activities generated information on non-Muslims, the agents set that information aside.

In accordance with his broad directive, Monteilh engaged with a wide variety of individuals. As instructed by his handlers, he attended classes at the mosque, amassed information on Muslims’ charitable giving, attended Muslim fundraising events, collected information on community members’ travel plans, attended lectures by Muslim scholars, went to daily prayers, memorized certain verses from the Quran and recited them to others, encouraged people to visit

18

FAZAGA V. WALLS

“jihadist” websites, worked out with targeted people at a gym to get close to them, and sought to obtain compromising information that could be used to pressure others to become informants. He also collected the names of board members, imams, teachers, and other leadership figures at the mosques, as well as the license plate numbers of cars in the mosque parking lots during certain events.

Virtually all of Monteilh’s interactions with Muslims were recorded. Monteilh used audio and video recording devices provided to him by the agents, including a cellphone, two key fobs with audio recording capabilities, and a camera hidden in a button on his shirt. He recorded, for example, his interactions with Muslims in the mosques, which were transcribed and reviewed by FBI officials. He also recorded meetings and conversations in the mosque prayer hall to which he was not a party. He did so by leaving his possessions behind, including his recording key fob, as though he had forgotten them or was setting them down while doing other things. Monteilh told Allen and Armstrong in written reports that he was recording conversations in this manner. The agents never told him to stop this practice, and they repeatedly discussed with Monteilh the contents of the recordings.

Armstrong and Allen occasionally instructed Monteilh to use his secret video camera for specific purposes, such as capturing the internal layout of mosques and homes. They also told Monteilh to obtain the contact information of people he met, and monitored his email and cellphone to obtain the email addresses and phone numbers of the people with whom he interacted.

FAZAGA V. WALLS

19

Although Monteilh spent the majority of his time at ICOI, he conducted surveillance and made audio recordings in at least seven other mosques during the investigation. During Monteilh’s fourteen months as an informant for Operation Flex, the FBI obtained from him hundreds of phone numbers; thousands of email addresses; background information on hundreds of individuals; hundreds of hours of video recordings of the interiors of mosques, homes, businesses, and associations; and thousands of hours of audio recordings of conversations, public discussion groups, classes, and lectures.

In addition to the surveillance undertaken directly by Monteilh, Allen and Armstrong told Monteilh that electronic surveillance equipment had been installed in at least eight mosques in the area, including ICOI. The electronic surveillance equipment installed at the Mission Viejo mosque was used to monitor Plaintiff Yassir Fazaga’s conversations, including conversations held in his office and other parts of the mosque not open to the public.

At the instruction of Allen and Armstrong, Monteilh took extensive handwritten notes each day about his activities and the surveillance he was undertaking. Allen and Armstrong met with Monteilh roughly twice each week to discuss his assignments, give him instructions, receive his daily notes, upload his recordings, and give him fresh devices. Monteilh was also required to call either Allen or Armstrong each day to apprise them of his activities. They told Monteilh that his daily notes were read by their supervisors.

The operation began to unravel when, in early 2007, Allen and Armstrong instructed Monteilh to begin more pointedly asking questions about jihad and armed conflict and

20

FAZAGA V. WALLS

to indicate his willingness to engage in violence. Implementing those instructions, Monteilh told several people that he believed it was his duty as a Muslim to take violent action and that he had access to weapons. Several ICOI members reported Monteilh to community leaders. One of the community leaders then called the FBI to report what Monteilh was saying, and instructed concerned ICOI members to call the Irvine Police Department, which they did. ICOI sought a restraining order against Monteilh, which was granted in June 2007.

Around the same time, Allen and Armstrong told Monteilh that Barbara Walls, then Assistant Special Agent in Charge of the FBI’s Santa Ana office, no longer trusted him and wanted him to stop working for the FBI. In October 2007, Monteilh was told that his role in Operation Flex was over. At one of the final meetings between Monteilh and Agents Allen and Armstrong, Walls was present. She warned Monteilh not to tell anyone about the operation.

Monteilh’s identity as an informant was revealed in February 2009 in connection with a criminal prosecution for naturalization fraud of Ahmadullah (or Ahmed) Niazi, one of the ICOI members who had reported Monteilh’s statements to the Irvine Police Department. FBI Special Agent Thomas Ropel testified at a bail hearing in Niazi’s case that he had heard several recordings between Niazi and a confidential informant, and that the informant was the same person Niazi had reported to the police. Ropel’s statements thus indicated that Monteilh was a confidential informant and that he had recorded numerous conversations for the FBI.

Several sources subsequently confirmed that Monteilh worked for the FBI, including the FBI and Monteilh himself.

FAZAGA V. WALLS

21

Although the FBI has disclosed some information about Monteilh’s actions as an informant, including that he created audio and video recordings and provided handwritten notes to the FBI, the FBI maintains that “certain specific information” concerning Operation Flex and Monteilh’s activities must be protected in the interest of national security.

II. Procedural History

Plaintiffs filed the operative complaint in September 2011, asserting eleven causes of action, which fall into two categories: claims alleging unconstitutional searches (“search claims”) and claims alleging unlawful discrimination on the basis of, or burdens on, or abridgement of the rights to, religion (“religion claims”). The religion claims allege violations of the First Amendment Religion Clauses, the equal protection guarantee of the Due Process Clause of the Fifth Amendment,4 the Privacy Act, the Religious Freedom Restoration Act (“RFRA”), the Foreign Intelligence Surveillance Act (“FISA”), and the Federal Tort Claims Act (“FTCA”).

Plaintiffs filed the complaint as a putative class action, with the class defined as “[a]ll individuals targeted by Defendants for surveillance or information-gathering through Monteilh and Operation Flex, on account of their religion, and about whom the FBI thereby gathered personally identifiable information.” The complaint sought injunctive

4 “The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws.” United States v. Windsor, 570 U.S. 744, 774 (2013) (citing Bolling v. Sharpe, 347 U.S. 497, 499–500 (1954)).

22

FAZAGA V. WALLS

relief for the individual Plaintiffs and the class, and damages for themselves as individuals.5 The Agent Defendants moved to dismiss the claims against them on various grounds, including qualified immunity. The Government moved to dismiss the amended complaint and for summary judgment, arguing that Plaintiffs’ statutory and constitutional claims fail on various grounds unrelated to the state secrets privilege.

The Government also asserted that the religion claims, but not the search claims, should be dismissed under the Reynolds state secrets privilege, see United States v. Reynolds, 345 U.S. 1 (1953), on the ground that litigation of the religion claims could not proceed without risking the disclosure of certain evidence protected by the privilege. The assertion of the state secrets privilege was supported with a previously filed public declaration from then-U.S. Attorney General Eric Holder; a public declaration from Mark Giuliano, then Assistant Director of the FBI’s Counterterrorism Division; and two classified declarations and a classified supplemental memorandum from Giuliano. The Attorney General asserted the state secrets privilege over three categories of evidence: (1) “[i]nformation that could tend to confirm or deny whether a particular individual was or was not the subject of an FBI counterterrorism investigation”; (2) “[i]nformation that could tend to reveal the initial reasons (i.e., predicate) for an FBI counterterrorism investigation of a particular person (including in Operation Flex), any information obtained

5 The proposed class has not been certified. In addition to its relevance to the merits of Plaintiffs’ claims, the information over which the Government asserted the state secrets privilege may also be relevant to the decision whether to certify the class. In addition, the scope of privileged evidence needed to litigate the case likely will differ should class certification be granted.

FAZAGA V. WALLS

23

during the course of such an investigation, and the status and results of the investigation”; and (3) “[i]nformation that could tend to reveal whether particular sources and methods were used in a counterterrorism investigation.”

In one order, the district court dismissed the FISA claim against the Government, brought under 50 U.S.C. § 1810, concluding that Congress did not waive sovereign immunity for damages actions under that statute. See Al-Haramain Islamic Found., Inc. v. Obama (Al-Haramain II), 705 F.3d 845, 850–55 (9th Cir. 2012). Plaintiffs do not challenge this dismissal. In the same order, the district court permitted Plaintiffs’ FISA claim against the Agent Defendants to proceed, rejecting the argument that the Agent Defendants were entitled to qualified immunity.

In a second order, the district court dismissed all the other claims in the case on the basis of the Reynolds state secrets privilege—including the Fourth Amendment claim, for which the Government Defendants expressly did not seek dismissal on that ground. Relying “heavily” on the classified declarations and supplemental memorandum, the district court concluded “that the subject matter of this action, Operation Flex, involves intelligence that, if disclosed, would significantly compromise national security.” It held that the Government Defendants would need to rely on the privileged material to defend against Plaintiffs’ claims, and that the privileged evidence was so inextricably tied up with nonprivileged material that “the risk of disclosure that further litigation would engender [could not] be averted through protective orders or restrictions on testimony.” The district court declined to use, as a substitute for dismissal, the in camera, ex parte procedures set out in § 1806(f) of FISA, on

24

FAZAGA V. WALLS

the ground that FISA’s procedures do not apply to non-FISA claims.

The Agent Defendants timely filed notices of appeal from the denial of qualified immunity on Plaintiffs’ FISA claim. The district court then approved the parties’ stipulation to stay all further proceedings related to the remaining FISA claim pending resolution of the Agent Defendants’ appeal and, at Plaintiffs’ request, entered partial final judgment under Federal Rule of Civil Procedure 54(b), allowing immediate appeal of the majority of Plaintiffs’ claims. The Plaintiffs’ appeal and the Agent Defendants’ appeal from the denial of qualified immunity on the FISA claim were consolidated and are both addressed in this opinion.

DISCUSSION

We begin with the only claim to survive Defendants’ motions to dismiss in the district court: the FISA claim against the Agent Defendants. After addressing the FISA claim, we turn to Plaintiffs’ argument that in cases concerning the lawfulness of electronic surveillance, the ex parte and in camera procedures set out in § 1806(f) of FISA supplant the dismissal remedy otherwise mandated by the state secrets evidentiary privilege. See infra Part II. We then proceed to evaluate Defendants’ other arguments for dismissal of the search and religion claims. See infra Parts III–IV. Finally, we explain the procedures to be followed on remand. See infra Part V.

I. The FISA Claim Against the Agent Defendants

Section 110 of FISA, codified at 50 U.S.C. § 1810, creates a private right of action for an individual subjected to

FAZAGA V. WALLS

25

electronic surveillance in violation of FISA’s procedures. It provides, in pertinent part:

An aggrieved person . . . who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation . . . .

50 U.S.C. § 1810.

This statutory text refers to another section, § 1809. That section, in turn, proscribes as criminal offenses two types of conduct: (1) “intentionally . . . engag[ing] in electronic surveillance under color of law except as authorized by [FISA, the Wiretap Act, the Stored Communications Act, or the pen register statute,] or any express statutory authorization,” and (2) “intentionally . . . disclos[ing] or us[ing] information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance” without authorization. 50 U.S.C. § 1809(a).

To determine whether Plaintiffs plausibly allege a cause of action under § 1810, we must decide (1) whether Plaintiffs are “aggrieved persons” within the meaning of the statute, (2) whether the surveillance to which they were subjected qualifies as “electronic surveillance,” and (3) whether the complaint plausibly alleges a violation of 50 U.S.C. § 1809.

26

FAZAGA V. WALLS

An “aggrieved person” is defined as “a person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance.” 50 U.S.C. § 1801(k).6 Plaintiffs allege in extensive detail in the complaint that they were subjected to many and varied instances of audio and video surveillance. The complaint’s allegations are sufficient if proven to establish that Plaintiffs are “aggrieved persons.”

The complaint also adequately alleges that much of the surveillance as described constitutes “electronic surveillance” as defined by FISA. FISA offers four definitions of electronic surveillance. 50 U.S.C. § 1801(f). Only the fourth is potentially at stake in this case:

the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.

Id. § 1801(f)(4) (emphases added). The key question as to the presence of “electronic surveillance” under this definition is whether the surveillance detailed in the complaint was undertaken in circumstances in which (1) Plaintiffs had a reasonable expectation of privacy and (2) a warrant would be required for law enforcement purposes. If, as the complaint

6 “‘Person’ means any individual, including any officer or employee of the Federal Government, or any group, entity, association, corporation, or foreign power.” 50 U.S.C. § 1801(m).

FAZAGA V. WALLS

27

alleges, no warrant was in fact obtained, such electronic surveillance would constitute a violation of § 1809. Id. § 1809(a).

The parties, citing ACLU v. NSA, 493 F.3d 644, 657 n.16, 683 (6th Cir. 2007), agree that these legal standards from FISA—reasonable expectation of privacy and the warrant requirement—are evaluated just as they would be under a Fourth Amendment analysis. The Agent Defendants argue, however, that they are entitled to qualified immunity on Plaintiffs’ FISA claim. Plaintiffs accept that qualified immunity can apply under FISA but maintain that the Agent Defendants are not entitled to immunity.7

The Agent Defendants are entitled to qualified immunity from damages unless Plaintiffs “plead[] facts showing (1) that the official[s] violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). We are permitted to “exercise [our] sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). Because, as we conclude in infra Part II.E, the applicability of FISA’s alternative

7 We have found only one decision, unpublished, addressing whether qualified immunity is an available defense to a FISA claim. See Elnashar v. U.S. Dep’t of Justice, No. CIV.03-5110(JNE/JSM), 2004 WL 2237059, at *5 (D. Minn. Sept. 30, 2004) (dismissing a FISA claim on grounds of qualified immunity because there was no evidence the defendant “would have known that the search of [plaintiff’s] apartment would have required a warrant”), aff’d on other grounds, 446 F.3d 792 (8th Cir. 2006). As the issue is not contested, we do not decide it.

28

FAZAGA V. WALLS

procedures for reviewing state secrets evidence turns on whether the surveillance at issue constitutes “electronic surveillance” within the meaning of FISA,8 we will begin with the first prong, even though we conclude that the Agent Defendants are ultimately entitled to qualified immunity on the second prong.

For purposes of qualified immunity, a right is clearly established if, “at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.’” al-Kidd, 563 U.S. at 741 (alterations in original) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “This inquiry . . . must be undertaken in light of the specific context of the case, not as a broad general proposition.” Saucier v. Katz, 533 U.S. 194, 201 (2001). “We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” al-Kidd, 563 U.S. at 741.

“The operation of [the qualified immunity] standard, however, depends substantially upon the level of generality at which the relevant ‘legal rule’ is to be identified.” Anderson, 483 U.S. at 639. Often, whether a right is “clearly established” for purposes of qualified immunity will turn on the legal test for determining whether that right has been

8 Again, as we noted above, “electronic surveillance” as defined by FISA must fall under one of four types of government action. 50 U.S.C. § 1801(f). The relevant one for our purposes involves “the installation or use of an electronic, mechanical, or other surveillance device . . . under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.” Id. § 1801(f)(4).

FAZAGA V. WALLS

29

violated. For claims of excessive force, for example, “[i]t is sometimes difficult for an officer to determine how the relevant legal doctrine . . . will apply to the factual situation the officer confronts.” Saucier, 533 U.S. at 205. “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Graham v. Connor, 490 U.S. 386, 396–97 (1989). By contrast, “[w]ith few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no,” Kyllo v. United States, 533 U.S. 27, 31 (2001), as “the Fourth Amendment has drawn a firm line at the entrance to the house,” Payton v. New York, 445 U.S. 573, 590 (1980). Thus, where the test for determining whether the right in question has been violated is framed as a standard, rather than a rule, officials are given more breathing room to make “reasonable mistakes.” Saucier, 533 U.S. at 205. In those instances, we require a higher degree of factual specificity before concluding that the right is “clearly established.” But where the right at issue is clear and specific, officials may not claim qualified immunity based on slight changes in the surrounding circumstances.9

9 The Supreme Court made a similar observation in an analogous context—determining whether a state court has unreasonably applied clearly established federal law for purposes of habeas review under the Antiterrorism and Effective Death Penalty Act: “[T]he range of reasonable judgment can depend in part on the nature of the relevant rule. If a legal rule is specific, the range may be narrow. . . . Other rules are more general, and their meaning must emerge in application over the course of time.” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).

30

FAZAGA V. WALLS

To properly approach this inquiry, we consider separately three categories of audio and video surveillance alleged in the complaint: (1) recordings made by Monteilh of conversations to which he was a party; (2) recordings made by Monteilh of conversations to which he was not a party (i.e., the recordings of conversations in the mosque prayer hall); and (3) recordings made by devices planted by FBI agents in Fazaga’s office and AbdelRahim’s house, car, and phone.10

We conclude that the Agent Defendants are entitled to dismissal on qualified immunity grounds of Plaintiffs’ § 1810 claim as to the first two categories of surveillance. As to the third category of surveillance, conducted via devices planted in AbdelRahim’s house and Fazaga’s office, Allen and Armstrong are not entitled to qualified immunity. But Tidwell, Walls, and Rose are entitled to dismissal as to this category, because Plaintiffs do not plausibly allege their involvement in this category of surveillance, and so have not

10 We note that, in their “Claims for Relief,” under the FISA cause of action, Plaintiffs recite that “Defendants, under color of law, acting through Monteilh” violated FISA (emphasis added). But the complaint specifically recites facts relating to devices allegedly planted directly by the Agent Defendants. Under the Federal Rules of Civil Procedure, it is the facts alleged that circumscribe the reach of the complaint for purposes of a motion to dismiss. See Skinner v. Switzer, 562 U.S. 521, 530 (2011).
We also note that there may be a fourth category of surveillance here at issue: video recordings of the interiors of individuals’ homes. These recordings are not given meaningful attention in the parties’ briefs, and we cannot determine from the complaint if Plaintiffs mean to allege that Monteilh video recorded the layouts of houses into which he was invited, or that he entered the houses without permission. Although at this stage we do not construe the complaint as asserting claims based on this fourth category of surveillance, our opinion does not foreclose Plaintiffs from clarifying these and other allegations on remand.

FAZAGA V. WALLS

31

“pleaded facts showing . . . that [those] officials violated a statutory or constitutional right.” al-Kidd, 563 U.S. at 735.

A. Recordings of Conversations to Which Monteilh Was a Party

A reasonable expectation of privacy exists where “a person ha[s] exhibited an actual (subjective) expectation of privacy,” and “the expectation [is] one that society is prepared to recognize as ‘reasonable.’” Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring); see, e.g., California v. Ciraolo, 476 U.S. 207, 211) (1986) (describing Justice Harlan’s test as the “touchstone of Fourth Amendment analysis”). Generally, an individual “has no privacy interest in that which he voluntarily reveals to a government agent,” a principle known as the invited informer doctrine. United States v. Wahchumwah, 710 F.3d 862, 867 (9th Cir. 2013) (citing Hoffa v. United States, 385 U.S. 293, 300–02 (1966)); see also United States v. Aguilar, 883 F.2d 662, 697–98 (9th Cir. 1989), superseded on other grounds by statute, Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359, as recognized in United States v. Gonzalez-Torres, 309 F.3d 594 (9th Cir. 2002). Plaintiffs contend, however, that the invited informer doctrine does not apply to the recordings made by Monteilh of conversations to which he was a party because the surveillance was conducted with discriminatory purpose and therefore in bad faith.

Bad faith of this sort does not, however, implicate the reasonable privacy expectation protected by the Fourth Amendment or violate the Fourth Amendment’s warrant requirement. There is, to be sure, an important “limitation[] on the government’s use of undercover informers to infiltrate an organization engaging in protected first amendment

32

FAZAGA V. WALLS

activities”: the government’s investigation must not be conducted “for the purpose of abridging first amendment freedoms.” Aguilar, 883 F.2d at 705. But that limitation on voluntary conversations with undercover informants— sometimes referred to as a “good faith” requirement,11 e.g., United States v. Mayer, 503 F.3d 740, 751 (9th Cir. 2007); Aguilar, 883 F.2d at 705—is imposed by the First Amendment, not the Fourth Amendment. As that constitutional limitation is not grounded in privacy expectations, it does not affect the warrant requirement under the Fourth Amendment.

Under the appropriate Fourth Amendment precepts, “[u]ndercover operations, in which the agent is a so-called ‘invited informer,’ are not ‘searches’ under the Fourth Amendment.” Mayer, 503 F.3d at 750 (emphasis added) (quoting Aguilar, 883 F.2d at 701). “[A] defendant generally has no privacy interest”—not merely an unreasonable privacy interest—“in that which he voluntarily reveals to a government agent.” Wahchumwah, 710 F.3d at 867 (emphasis added). In other words, use of a government informant under the invited informer doctrine—even if not in good faith in the First Amendment sense—does not implicate the privacy interests protected by the Fourth Amendment. Because our inquiry under FISA is confined to whether a reasonable expectation of privacy was violated and whether a warrant was therefore required, see ACLU, 493 F.3d at 657 n.16, 683, the First Amendment-grounded good-faith limitation does not apply to our current inquiry.

11 We use this term in the remainder of this discussion to refer to the constitutional limitation on the use of informants discussed in the text.

FAZAGA V. WALLS

33

Under the invited informer doctrine, Plaintiffs lacked a reasonable expectation of privacy in the conversations recorded by Monteilh to which he was a party. The Agent Defendants are therefore not liable under FISA for this category of surveillance.

B. Recordings of Conversations in the Mosque Prayer Hall to Which Monteilh Was Not a Party

Plaintiffs did have a privacy-grounded reasonable expectation that their conversations in the mosque prayer hall would not be covertly recorded by an individual who was not present where Plaintiffs were physically located and was not known to be listening in.12 The Agent Defendants are, however, entitled to qualified immunity with respect to this category of surveillance under the second prong of the qualified immunity standard—whether “the right was ‘clearly established’ at the time of the challenged conduct.” al-Kidd, 563 U.S. at 735 (quoting Harlow, 457 U.S. at 818).

Again, the relevant questions here on the merits of the FISA and Fourth Amendment issues are whether “a person ha[s] exhibited an actual (subjective) expectation of privacy,” and whether “the expectation [is] one that society is prepared to recognize as ‘reasonable.’” Katz, 389 U.S. at 361 (Harlan, J., concurring). To first determine whether an individual has “exhibited an actual expectation of privacy,” we assess whether “he [sought] to preserve [something] as private.” Bond v. United States, 529 U.S. 334, 338 (2000) (alterations

12 We are not suggesting that the recording have been impermissible under FISA and the Fourth Amendment if the Agent Defendants had obtained a warrant based on probable cause. Here, however, no warrant was obtained.

34

FAZAGA V. WALLS

in original) (quoting Smith v. Maryland, 442 U.S. 735, 740 (1979)). Based on the rules and customs of the mosque, and the allegations in the complaint, we have no trouble determining that Plaintiffs manifested an actual, subjective expectation of privacy in their conversations there.

The mosque prayer hall is not an ordinary public place. It is a site of religious worship, a place for Muslims to come together for prayer, learning, and fellowship. Plaintiffs allege that the prayer hall “is [a] sacred space where particular rules and expectations apply. Shoes are prohibited, one must be in a state of ablution, discussing worldly matters is discouraged, and the moral standards and codes of conduct are at their strongest.” Notably, “[g]ossiping, eavesdropping, or talebearing (namima—revealing anything where disclosure is resented) is forbidden.” And ICOI, which Malik and AbdelRahim attended, specifically prohibited audio and video recording in the mosque without permission. When, on a rare occasion, an outside entity did record an event or a speaker, ICOI put up signs to notify congregants. Furthermore, Plaintiffs explain in their complaint that halaqas, which are small group meetings during which participants “discuss theology or matters related to the practice of Islam,” are understood by mosque attendees to be environments that “ensure some measure of confidentiality among participants.”13

These privacy-oriented rules and customs confirm for us that the Plaintiffs held a subjective expectation of privacy in their conversations among themselves while in the prayer hall.

13 We understand that description to imply that Monteilh recorded conversations that occurred during halaqas in the mosque prayer hall.

FAZAGA V. WALLS

35

That Plaintiffs were not alone in the mosque prayer hall does not defeat their claim that they manifested an expectation of privacy.14 “Privacy does not require solitude.” United States v. Taketa, 923 F.2d 665, 673 (9th Cir. 1991). For example, “a person can have a subjective expectation that his or her home will not be searched by the authorities, even if he or she has invited friends into his or her home.” Trujillo v. City of Ontario, 428 F. Supp. 2d 1094, 1102 (C.D. Cal. 2006), aff’d sub nom. Bernhard v. City of Ontario, 270 F. App’x 518 (9th Cir. 2008). The same principle applies to certain other enclosed locations in which individuals have particular reason to expect confidentiality and repose.15

14 The Agent Defendants cite Smith v. Maryland, 442 U.S. at 740–41, to support the proposition that the unattended recordings in the mosque prayer hall did not invade Plaintiffs’ reasonable expectation of privacy. Smith and its progeny do not apply here. Smith concerned a pen register installed and used by a telephone company, and held that an individual enjoys no Fourth Amendment protection “in information he voluntary turns over to third parties.” Id. at 743–44. But, as the Fourth Circuit has stressed, Smith and the cases relying on it are concerned with “whether the government invades an individual’s reasonable expectation of privacy when it obtains, from a third party, the third party’s records.” United States v. Graham, 824 F.3d 421, 426 (4th Cir. 2016) (en banc) (emphasis added), abrogated on other grounds by Carpenter v. United States, 138 S. Ct. 2206 (2018). Cases “involv[ing] direct government surveillance activity,” including surreptitiously viewing, listening to, or recording individuals—like the one before us—present a wholly separate question. Id.
15 Taketa, for example, held that a state employee could hold an expectation of privacy in his office even though the office was shared with two others. 923 F.2d at 673. “[E]ven ‘private’ business offices are often subject to the legitimate visits of coworkers, supervisors, and the public, without defeating the expectation of privacy unless the office is ‘so open to fellow employees or the public that no expectation of privacy is reasonable.’” Id. (quoting O’Connor v. Ortega, 480 U.S. 709, 717–18 (1987)).

36

FAZAGA V. WALLS

Finally, the case law distinguishes between an expectation of privacy in a place and an expectation of privacy as to whether an individual’s conversations or actions in that place would be covertly recorded by persons not themselves present in that place.16 The Supreme Court has recently emphasized the significant difference between obtaining information in person and recording information electronically. See Carpenter, 138 S. Ct. at 2219 (“Unlike the nosy neighbor who keeps an eye on comings and goings, they are ever alert, and their memory is nearly infallible.”). Here, given the intimate and religious nature of the space and the express prohibition on recording, Plaintiffs have adequately alleged that they subjectively believed their conversations would not be covertly recorded by someone not present in the prayer hall for transmission to people not present in the prayer hall.17

Having concluded that Plaintiffs exhibited a subjective expectation of privacy, we now consider whether it was “one that society is prepared to recognize as ‘reasonable.’” Katz, 389 U.S. at 361 (Harlan, J., concurring). In assessing whether

16 See also Taketa, 923 F.2d at 676 (“Taketa has no general privacy interest in [his co-worker’s] office, but he may have an expectation of privacy against being videotaped in it.”); Trujillo, 428 F. Supp. 2d at 1102 (considering the secret installation and use of a video camera in a police department’s men’s locker room, and explaining that it was “immaterial” that the plaintiffs changed their clothes in the presence of others, because “[a] person can have a subjective expectation of privacy that he or she will not be covertly recorded, even though he or she knows there are other people in the locker room” (emphasis added)).
17 The complaint alleges that Plaintiffs lost “confidence in the mosque as a sanctuary” after learning of Monteilh’s surveillance. This feeling of the loss of privacy reinforces the conclusion that Plaintiffs exhibited an actual expectation of privacy in their conversations in the mosque before the alleged surveillance took place.

FAZAGA V. WALLS

37

an individual’s expectation of privacy is reasonable, context is key. See O’Connor, 480 U.S. at 715. “Although no single rubric definitively resolves which expectations of privacy are entitled to protection, the analysis is informed by historical understandings ‘of what was deemed an unreasonable search and seizure when [the Fourth Amendment] was adopted.’” Carpenter, 138 S. Ct. at 2213–14 (alteration in original) (footnote omitted) (quoting Carroll v. United States, 267 U.S. 132, 149 (1925)). Relevant here is the principle that “the extent to which the Fourth Amendment protects people may depend upon where those people are.” Minnesota v. Carter, 525 U.S. 83, 88 (1998) (emphasis added). We thus “assess the nature of the location where [the] conversations were seized”—here, the mosque prayer hall. United States v. Gonzalez, Inc., 412 F.3d 1102, 1116–17 (9th Cir. 2005), amended on denial of reh’g, 437 F.3d 854 (9th Cir. 2006).

The sacred and private nature of the houses of worship Plaintiffs attended distinguishes them from the types of commercial and public spaces in which courts have held that individuals lack a reasonable expectation of privacy.18 United States v. Gonzalez, 328 F.3d 543 (9th Cir. 2003), for example, held that the defendant had no reasonable expectation of privacy in “a large, quasi-public mailroom at a public hospital during ordinary business hours.” Id. at 547. The mailroom had open doors, was visible to the outside via large windows, and received heavy foot traffic. Id. In addition to focusing on the physical specifics of the mailroom, Gonzalez emphasized

18 See, e.g., In re John Doe Trader No. One, 894 F.2d 240, 243–44 (7th Cir. 1990) (holding that a rule prohibiting tape recorders on the trading floor “aimed at various forms of distracting behavior” and explicitly “designed to protect ‘propriety and decorum’ not privacy” did not support a reasonable expectation of privacy).

38

FAZAGA V. WALLS

that public hospitals, “by their nature . . . create a diminished expectation of privacy. The use of surveillance cameras in hospitals for patient protection, for documentation of medical procedures and to prevent theft of prescription drugs is not uncommon.” Id. The mosque prayer halls in this case, by contrast, have no characteristics similarly evidencing diminished expectations of privacy or rendering such expectations unreasonable.19 There are no urgent health or safety needs justifying surveillance. And the use of surveillance equipment at ICOI is not only uncommon, but expressly forbidden.

Our constitutional protection of religious observance supports finding a reasonable expectation of privacy in such a sacred space, where privacy concerns are acknowledged and protected, especially during worship and other religious observance. Cf. Mockaitis v. Harcleroad, 104 F.3d 1522,

19 Again, the fact that many people worshipped at the mosque does not render the Plaintiffs’ expectations of privacy in their conversations (or at the very least from, their expectations that their conversations would not be covertly recorded) unreasonable. In Gonzalez, Inc., for example, we held that individuals who owned and managed a small, family-run business with up to 25 employees had “a reasonable expectation of privacy over the on-site business conversations between their agents.” 412 F.3d at 1116–17. The Gonzalez family, whose phone calls were intercepted, were not alone in their place of business, and their calls could have been overheard by others who were present. But we concluded that they nonetheless had a reasonable expectation of privacy over their conversations because they owned the office, had full access to the building, and exercised managerial control over the office’s day-to-day operations. Id. Similarly, United States v. McIntyre, 582 F.2d 1221 (9th Cir. 1978), rejected the argument that a police officer lacked a reasonable expectation of privacy over conversations had in his office because his office door was open and a records clerk worked nearby in an adjacent room. Id. at 1224. “A business office need not be sealed to offer its occupant a reasonable degree of privacy,” we reasoned. Id.

FAZAGA V. WALLS

39

1533 (9th Cir. 1997) (holding that, based in part on “the nation’s history of respect for religion in general,” a priest had a reasonable expectation of privacy in his conversation with an individual during confession), overruled on other grounds by City of Boerne v. Flores, 521 U.S. 507 (1997). Thus, Plaintiffs’ expectation that their conversations in the mosque prayer hall would be confidential among participants (unless shared by one of them with others), and so would not be intercepted by recording devices planted by absent government agents was objectively reasonable.

Finally, “[w]here the materials sought to be seized may be protected by the First Amendment, the requirements of the Fourth Amendment must be applied with ‘scrupulous exactitude.’” Zurcher v. Stanford Daily, 436 U.S. 547, 564 (1978) (quoting Stanford v. Texas, 379 U.S. 476, 485 (1965)). “National security cases,” like the one here, “often reflect a convergence of First and Fourth Amendment values not present in cases of ‘ordinary’ crime.” United States v. U.S. District Court (Keith), 407 U.S. 297, 313 (1972). “Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy . . . .” Id. at 314.

Accordingly, we hold that Plaintiffs had a reasonable expectation of privacy that their conversations in the mosque prayer hall would not be covertly recorded by a government agent not party to the conversations.

As of 2006 and 2007, however, no federal or state court decision had held that individuals generally have a reasonable expectation of privacy from surveillance in places of worship. Our court had declined to read Katz as established authority “for the proposition that a reasonable expectation of privacy

40

FAZAGA V. WALLS

attaches to church worship services open to the public.” The Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 527 (9th Cir. 1989). Noting that there was a lack of clearly established law so concluding, Presbyterian Church held that Immigration and Naturalization Service (“INS”) officials were entitled to qualified immunity from a Fourth Amendment challenge to undercover electronic surveillance of church services conducted without a warrant and without probable cause. Id. No case decided between Presbyterian Church and the incidents giving rise to this case decided otherwise. And no case decided during that period addressed circumstances more like those here, in which there are some specific manifestations of an expectation of privacy in the particular place of worship. Arguably pertinent was Mockaitis, but that case concerned the confession booth, not the church premises generally. 104 F.3d at 1533. The circumstances here fall between Presbyterian Church and Mockaitis, so there was no clearly established law here applicable. The Agent Defendants are thus entitled to qualified immunity as to this category of surveillance.

C. Recordings Made by Planted Devices

It was, of course, clearly established in 2006 and 2007 that individuals have a reasonable expectation of privacy from covert recording of conversations in their homes, cars, and offices, and on their phones. See, e.g., Kyllo, 533 U.S. at 31 (home); New York v. Class, 475 U.S. 106, 115 (1986) (cars); Katz, 389 U.S. at 360–61 (Harlan, J., concurring) (enclosed telephone booths); Taketa, 923 F.2d at 673 (office); McIntyre, 582 F.2d at 1223–24 (office). The Agent Defendants accept these well-established legal propositions. But they maintain that the complaint’s allegations that the FBI planted electronic surveillance equipment in Fazaga’s

FAZAGA V. WALLS

41

office and AbdelRahim’s house, car, and phone are too conclusory to satisfy Iqbal’s plausibility standard, and so do not adequately allege on the merits a violation of Plaintiffs’ rights under FISA. See al-Kidd, 563 U.S. at 735; Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). We cannot agree.

Plaintiffs offer sufficient well-pleaded facts to substantiate their allegation that some of the Agent Defendants—Allen and Armstrong—were responsible for planting devices in AbdelRahim’s house. Specifically, the complaint details one occasion on which Allen and Armstrong asked Monteilh about something that had happened in AbdelRahim’s house that Monteilh had not yet communicated to them, and explained that they knew about it because they had audio surveillance in the house.

Plaintiffs also allege sufficient facts with regard to those two Agent Defendants in support of their allegation of electronic surveillance of Fazaga’s office in the OCIF mosque in Mission Viejo: Allen and Armstrong told Monteilh that electronic surveillance was “spread indiscriminately” across “at least eight area mosques including ICOI, and mosques in Tustin, Mission Viejo, Culver City, Lomita, West Covina, and Upland,” and that “they could get in a lot of trouble if people found out what surveillance they had in the mosques.” They also instructed Monteilh to use a video camera hidden in a shirt button to record the interior of OCIF and “get a sense of the schematics of the place—entrances, exits, rooms, bathrooms, locked doors, storage rooms, as well as security measures and whether any security guards were armed.”Armstrong later told Monteilh that he and Allen used the information he recorded to enter OCIF.

42

FAZAGA V. WALLS

As to Tidwell, Walls, and Rose, however, the complaint does not plausibly allege their personal involvement with respect to the planted devices.20 The complaint details Tidwell, Walls, and Rose’s oversight of Monteilh, including that they read his daily notes and were apprised, through Allen and Armstrong, of the information he collected. But the complaint never alleges that Monteilh was involved in planting devices in AbdelRahim’s house, car, or phone, or in Fazaga’s office; those actions are attributed only to unnamed FBI agents.

The complaint also offers general statements that Tidwell, Walls, and Rose supervised Allen and Armstrong.21 But “[g]overnment officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.” Iqbal, 556 U.S. at 676. Instead, “a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” Id. Plaintiffs have not done so as to this category of surveillance with regard to Tidwell, Walls, and Rose. The complaint does not allege that the supervisors knew of, much less ordered or arranged for, the planting of

20 Because we concluded with respect to the first two categories of surveillance either that Plaintiffs had no reasonable expectation of privacy or that the expectation was not clearly established in the case law at the pertinent time, we reach the question whether Plaintiffs plausibly allege the personal involvement of Tidwell, Wall, and Rose only with respect to the third category of surveillance.
21 The relevant allegations were only that Walls and Rose “actively monitored, directed, and authorized the actions of Agents Allen and Armstrong and other agents at all times relevant in this action, for the purpose of surveilling Plaintiffs and other putative class members because they were Muslim” and that Tidwell “authorized and actively directed the actions of Agents Armstrong, Allen, Rose, Walls, and other agents.”

FAZAGA V. WALLS

43

the recording devices in AbdelRahim’s home or Fazaga’s office, so the supervisors are entitled to qualified immunity as to that surveillance. See, e.g., Chavez v. United States, 683 F.3d 1102, 1110 (9th Cir. 2012); Ortez v. Washington County, 88 F.3d 804, 809 (9th Cir. 1996).

In sum, Plaintiffs allege a FISA claim against Allen and Armstrong for recordings made by devices planted by FBI agents in AbdelRahim’s house and Fazaga’s office. As to all other categories of surveillance, the Agent Defendants either did not violate FISA; are entitled to qualified immunity on the FISA claim because Plaintiffs’ reasonable expectation of privacy was not clearly established; or were not plausibly alleged in the complaint to have committed any FISA violation that may have occurred.

II. The State Secrets Privilege and FISA Preemption

Having addressed the only claim to survive Defendants’ motions to dismiss in the district court, we turn to the district court’s dismissal of the remaining claims pursuant to the state secrets privilege.22 Plaintiffs argue that reversal is warranted “on either of two narrower grounds.” First, Plaintiffs argue that, at this preliminary stage, the district court erred in concluding that further litigation would require the disclosure of privileged information. Second, Plaintiffs maintain that the district court should have relied on FISA’s alternative procedures for handling sensitive national security information. Because we agree with Plaintiffs’ second

22 Plaintiffs do not dispute at this juncture the district court’s conclusion that the information over which the Attorney General asserted the state secrets privilege indeed comes within the privilege. We therefore assume as much for present purposes.

44

FAZAGA V. WALLS

argument, we do not decide the first. We therefore need not review the Government’s state secrets claim to decide whether the standard for dismissal at this juncture—whether the district court properly “determine[d] with certainty . . . that litigation must be limited or cut off in order to protect state secrets, even before any discovery or evidentiary requests have been made,” Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1081 (9th Cir. 2010) (en banc)—has been met.

The initial question as to Plaintiffs’ second argument is whether the procedures established under FISA for adjudicating the legality of challenged electronic surveillance replace the common law state secrets privilege with respect to such surveillance to the extent that privilege allows the categorical dismissal of causes of action. The question is a fairly novel one. We are the first federal court of appeals to address it. Only two district courts, both in our circuit, have considered the issue. Those courts both held that FISA “displace[s] federal common law rules such as the state secrets privilege with regard to matters within FISA’s purview.” Jewel v. NSA, 965 F. Supp. 2d 1090, 1105–06 (N.D. Cal. 2013); accord In re NSA Telecomms. Records Litig. (In re NSA), 564 F. Supp. 2d 1109, 1117–24 (N.D. Cal. 2008). We rely on similar reasoning to that in those district court decisions, but reach a narrower holding as to the scope of FISA preemption.

Our analysis of this issue proceeds as follows. First, we offer a brief review of the state secrets privilege. Second, we discuss one reason why the district court should not have dismissed the search claims based on the privilege. Third, we explain why FISA displaces the dismissal remedy of the common law state secrets privilege as applied to electronic

FAZAGA V. WALLS

45

surveillance generally. Then we review the situations in which FISA’s procedures under § 1806(f) apply, including affirmative constitutional challenges to electronic surveillance. Finally, we explain why the present case fits at least one of the situations in which FISA’s procedures apply.

Before we go on, we emphasize that although we hold that Plaintiffs’ electronic surveillance claims are not subject to outright dismissal at the pleading stage because FISA displaces the state secrets privilege, the FISA procedure is, not surprisingly, extremely protective of government secrecy. Under that procedure, Plaintiffs’ religion claims will not go forward under the open and transparent processes to which litigants are normally entitled. Instead, in the interest of protecting national security, the stringent FISA procedures require severe curtailment of the usual protections afforded by the adversarial process and due process. See, e.g., Yamada v. Nobel Biocare Holding AG, 825 F.3d 536, 545 (9th Cir. 2016) (holding that the district court’s use of ex parte, in camera submissions to support its fee order violated defendants’ due process rights); Intel Corp. v. Terabyte Int’l, Inc., 6 F.3d 614, 623 (9th Cir. 1993) (same); MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986) (same). As it is Plaintiffs who have invoked the FISA procedures, we proceed on the understanding that they are willing to accept those restrictions to the degree they are applicable as an alternative to dismissal, and so may not later seek to contest them.23

23 We discuss how the district court is to apply the FISA procedures to Plaintiffs’ surviving claims on remand in infra Part V.

46

FAZAGA V. WALLS

A. The State Secrets Privilege

“The Supreme Court has long recognized that in exceptional circumstances courts must act in the interest of the country’s national security to prevent disclosure of state secrets, even to the point of dismissing a case entirely.” Jeppesen, 614 F.3d at 1077 (citing Totten v. United States, 92 U.S. 105, 107 (1876)). Neither the Supreme Court nor this court has precisely delineated what constitutes a state secret. Reynolds referred to “military matters which, in the interest of national security, should not be divulged.” 345 U.S. at 10. Jeppesen added that not all classified information is necessarily privileged under Reynolds. 614 F.3d at 1082. The state secrets privilege has been held to apply to information that would result in “impairment of the nation’s defense capabilities, disclosure of intelligence-gathering methods or capabilities, and disruption of diplomatic relations with foreign governments, or where disclosure would be inimical to national security.” Black v. United States, 62 F.3d 1115, 1118 (8th Cir. 1995) (citations and internal quotation marks omitted). But courts have acknowledged that terms like “military or state secrets” are “amorphous in nature,” id. (citation omitted); the phrase “inimical to national security” certainly is. And although purely domestic investigations with no international connection do not involve state secrets, we recognize that the contours of the privilege are perhaps even more difficult to draw in a highly globalized, post-9/11 environment, where the lines between foreign and domestic security interests may be blurred.

We do not attempt to resolve the ambiguity or to explain definitively what constitutes a “state secret.” But we note the ambiguity nonetheless at the outset, largely as a reminder that, as our court has previously noted, “[s]imply saying

FAZAGA V. WALLS

47

‘military secret,’ ‘national security’ or ‘terrorist threat’ or invoking an ethereal fear that disclosure will threaten our nation is insufficient to support the privilege.” Al-Haramain Islamic Found., Inc. v. Bush (Al-Haramain I), 507 F.3d 1190, 1203 (9th Cir. 2007).

Created by federal common law, the modern state secrets doctrine has two applications: the Totten bar and the Reynolds privilege. The Totten bar is invoked “‘where the very subject matter of the action’ is ‘a matter of state secret.’” Id. at 1077 (quoting Reynolds, 345 U.S. at 11 n.26). It “completely bars adjudication of claims premised on state secrets.” Id.; see also Totten, 95 U.S. at 106–07. The Reynolds privilege, by contrast, “is an evidentiary privilege rooted in federal common law.” Kasza v. Browner, 133 F.3d 1159, 1167 (9th Cir. 1998); see also Gen. Dynamics Corp. v. United States, 563 U.S. 478, 485 (2011). It “may be asserted at any time,” and successful assertion “will remove the privileged evidence from the litigation.” Jeppesen, 614 F.3d at 1079–80.

Here, after the Attorney General asserted the Reynolds privilege and the Government submitted both public and classified declarations setting out the parameters of its state secrets contention, the Government Defendants requested dismissal of Plaintiffs’ religion claims in toto—but not the Fourth Amendment and FISA claims—at the pleading stage. “Dismissal at the pleading stage under Reynolds is a drastic result and should not be readily granted.” Jeppesen, 614 F.3d at 1089. Only “if state secrets are so central to a proceeding that it cannot be litigated without threatening their disclosure” is dismissal the proper course. Id. at 1081 (quoting El-Masri v. United States, 479 F.3d 296, 308 (4th Cir. 2007)). Because there is a strong interest in allowing otherwise meritorious litigation to go forward, the court’s inquiry into the need for

48

FAZAGA V. WALLS

the secret information should be specific and tailored, not vague and general. See id. at 1081–82; In re Sealed Case, 494 F.3d 139, 144–54 (D.C. Cir. 2007).

Specifically, the Reynolds privilege will justify dismissal of the action in three circumstances: (1) if “the plaintiff cannot prove the prima facie elements of her claim with nonprivileged evidence”; (2) if “the privilege deprives the defendant of information that would otherwise give the defendant a valid defense to the claim”; and (3) if “privileged evidence” is “inseparable from nonprivileged information that will be necessary to the claims or defenses” such that “litigating the case to a judgment on the merits would present an unacceptable risk of disclosing state secrets.” Jeppesen, 614 F.3d at 1083 (citations omitted). The district court assumed that Plaintiffs could make a prima facie case without resorting to state secrets evidence, but determined that the second and third circumstances exist in this case and require dismissal.

B. The District Court’s Dismissal of the Search Claims Based on the State Secrets Privilege

As a threshold matter, before determining whether FISA displaces the state secrets privilege with regard to electronic surveillance, we first consider which of Plaintiffs’ claims might otherwise be subject to dismissal under the state secrets privilege. Although the Government expressly did not request dismissal of the Fourth Amendment and FISA claims based on the privilege, the district court nonetheless dismissed the Fourth Amendment claim on that basis. That was error.

The Government must formally claim the Reynolds privilege. Reynolds, 345 U.S. at 7–8. The privilege is “not

FAZAGA V. WALLS

49

simply an administrative formality” that may be asserted by any official. Jeppesen, 614 F.3d at 1080 (quoting United States v. W.R. Grace, 526 F.3d 499, 507–08 (9th Cir. 2008) (en banc)). Rather, the formal claim must be “lodged by the head of the department which has control over the matter.” Reynolds, 345 U.S. at 8. The claim must “reflect the certifying official’s personal judgment; responsibility for [asserting the privilege] may not be delegated to lesserranked officials.” Jeppesen, 614 F.3d at 1080. And the claim “must be presented in sufficient detail for the court to make an independent determination of the validity of the claim of privilege and the scope of the evidence subject to the privilege.” Id. Such unusually strict procedural requirements exist because “[t]he privilege ‘is not to be lightly invoked,’” especially when dismissal of the entire action is sought. Id. (quoting Reynolds, 345 U.S. at 7).

Here, although the Government has claimed the Reynolds privilege over certain state secrets, it has not sought dismissal of the Fourth Amendment and FISA claims based on its invocation of the privilege. In light of that position, the district court should not have dismissed those claims. In doing so, its decision was inconsistent with Jeppesen’s observation that, “[i]n evaluating the need for secrecy, ‘we acknowledge the need to defer to the Executive on matters of foreign policy and national security and surely cannot legitimately find ourselves second guessing the Executive in this arena.’” 614 F.3d at 1081–82 (quoting Al-Haramain I, 507 F.3d at 1203). Just as the Executive is owed deference when it asserts that exclusion of the evidence or dismissal of the case is necessary to protect national security, so the Executive is necessarily also owed deference when it asserts that national security is not threatened by litigation.

50

FAZAGA V. WALLS

Indeed, Jeppesen cautioned that courts should work “to ensure that the state secrets privilege is asserted no more frequently and sweepingly than necessary.” Id. at 1082 (quoting Ellsberg v. Mitchell, 709 F.2d 51, 58 (D.C. Cir. 1983)). Dismissing claims based on the privilege where the Government has expressly told the court it is not necessary to do so—and, in particular, invoking the privilege to dismiss, at the pleading stage, claims the Government has expressly told the court it need not dismiss on grounds of privilege—cuts directly against Jeppesen’s call for careful, limited application of the privilege.

Although the Government Defendants expressly did not request dismissal of the search claims under the state secrets privilege, the Agent Defendants did so request. In declining to seek dismissal of the search claims based on the state secrets privilege, the Government explained:

At least at this stage of the proceedings, sufficient non-privileged evidence may be available to litigate these claims should they otherwise survive motions to dismiss on nonprivilege grounds. The FBI has previously disclosed in a separate criminal proceeding that Monteilh collected audio and video information for the FBI, and some of that audio and video information was produced in that prior case. The FBI has been reviewing additional audio and video collected by Monteilh for possible disclosure in connection with further proceedings on the issue of whether the FBI instructed or permitted Monteilh to leave recording devices unattended in order to collect non-consenting

FAZAGA V. WALLS

51

communications. The FBI expects that the majority of the audio and video will be available in connection with further proceedings. Thus, while it remains possible that the need to protect properly privileged national security information might still foreclose litigation of these claims, at present the FBI and official capacity defendants do not seek to dismiss these claims based on the privilege assertion.

The Agent Defendants note that the Government focuses on the public disclosure of recordings collected by Monteilh, and point out that Plaintiffs also challenge surveillance conducted without Monteilh’s involvement—namely, the planting of recording devices by FBI agents in Fazaga’s office and AbdelRahim’s home, car, and phone. Allegations concerning the planting of recording devices by FBI agents other than Monteilh, the Agent Defendants argue, are the “sources and methods” discussed in the Attorney General’s invocation of the privilege. The Agent Defendants thus maintain that because the Government’s reasons for not asserting the privilege over the search claims do not apply to all of the surveillance encompassed by the search claims, dismissal as to the search claims is in fact necessary.

The Agent Defendants, however, are not uniquely subject to liability for the planted devices. The Fourth Amendment claim against the Government Defendants likewise applies to that category of surveillance. See infra Part III.A. The Agent Defendants—officials sued in their individual capacities—are not the protectors of the state secrets evidence; the Government is. Accordingly, and because the Agent Defendants have not identified a reason they specifically

52

FAZAGA V. WALLS

require dismissal to protect against the harmful disclosure of state secrets where the Government does not, we decline to accept their argument that the Government’s dismissal defense must be expanded beyond the religion claims.24

In short, in determining sua sponte that particular claims warrant dismissal under the state secrets privilege, the district court erred. For these reasons, we will not extend FISA’s procedures to challenges to the lawfulness of electronic surveillance to the degree the Government agrees that such challenges may be litigated in accordance with ordinary adversarial procedures without compromising national security.

C. FISA Displacement of the State Secrets Privilege

Before the enactment of FISA in 1978, foreign intelligence surveillance and the treatment of evidence implicating state secrets were governed purely by federal common law. Federal courts develop common law “in the absence of an applicable Act of Congress.” City of Milwaukee v. Illinois, 451 U.S. 304, 313 (1981). “Federal common law is,” however, “a ‘necessary expedient’ and when Congress addresses a question previously governed by a decision rested on federal common law the need for such an unusual exercise of lawmaking by federal courts disappears.” Id. (citation omitted). Once “the field has been made the subject of

24 Although the Government may assert the state secrets privilege even when it is not a party to the case, see Jeppesen, 614 F.3d at 1080, we have not found—and the Agent Defendants have not cited—any case other than the one at hand in which a court granted dismissal under the privilege as to non-Government defendants, notwithstanding the Government’s assertion that the claims at issue may be litigated with nonprivileged information.

FAZAGA V. WALLS

53

comprehensive legislation or authorized administrative standards,” federal common law no longer applies. Id. (quoting Texas v. Pankey, 441 F.2d 236, 241 (10th Cir. 1971)).

To displace federal common law, Congress need not “affirmatively proscribe[] the use of federal common law.” Id. at 315. Rather, “to abrogate a common-law principle, the statute must ‘speak directly’ to the question addressed by the common law.” United States v. Texas, 507 U.S. 529, 534 (1993) (quoting Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625 (1978)). As we now explain, in enacting FISA, Congress displaced the common law dismissal remedy created by the Reynolds state secrets privilege as applied to electronic surveillance within FISA’s purview.25

We have specifically held that because “the state secrets privilege is an evidentiary privilege rooted in federal common law . . . the relevant inquiry in deciding if [a statute] preempts the state secrets privilege is whether the statute ‘[speaks] directly to [the] question otherwise answered by federal common law.’” Kasza, 133 F.3d at 1167 (second and third alterations in original) (quoting County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 236–37 (1985)).26 Nonetheless, the Government maintains, in a vague and short paragraph in its brief, that Congress cannot displace the state secrets

25 Our holding concerns only the Reynolds privilege, not the Totten justiciability bar.
26 Applying this principle, Kasza concluded that section 6001 of the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6961, did not preempt the state secrets privilege as to RCRA regulatory material, as “the state secrets privilege and § 6001 have different purposes.” 133 F.3d at 1168.

54

FAZAGA V. WALLS

evidentiary privilege absent a clear statement, and that, because Plaintiffs cannot point to a clear statement, “principles of constitutional avoidance” require rejecting the conclusion that FISA’s procedures displace the dismissal remedy of the state secrets privilege with regard to electronic surveillance.

In support of this proposition, the Government cites two out-of-circuit cases, El-Masri v. United States, 479 F.3d 296, and Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991). ElMasri does not specify a clear statement rule; it speaks generally about the constitutional significance of the state secrets privilege, while recognizing its common law roots. 479 F.3d at 303–04. Armstrong holds generally that the clear statement rule must be applied “to statutes that significantly alter the balance between Congress and the President,” but does not apply that principle to the state secrets privilege. 924 F.2d at 289. So neither case is directly on point.

Under our circuit’s case law, a clear statement in the sense of an explicit abrogation of the common law state secrets privilege is not required to decide that a statute displaces the privilege. Rather, if “the statute ‘[speaks] directly to [the] question otherwise answered by federal common law,’” that is sufficient. Kasza, 133 F.3d at 1167 (second and third alterations in original) (quoting Oneida, 470 U.S. at 236–37); see also Texas, 507 U.S. at 534. Although we, as a three-judge panel, could not hold otherwise, we would be inclined in any event to reject any clear statement rule more stringent than Kasza’s “speak directly to the question” requirement in this context.

The state secrets privilege may have “a constitutional ‘core’ or constitutional ‘overtones,’” In re NSA, 564 F. Supp.

FAZAGA V. WALLS

55

2d at 1124, but, at bottom, it is an evidentiary rule rooted in common law, not constitutional law. The Supreme Court has so emphasized, explaining that Reynolds “decided a purely evidentiary dispute by applying evidentiary rules.” Gen. Dynamics, 563 U.S. at 485. To require express abrogation, by name, of the state secrets privilege would be inconsistent with the evidentiary roots of the privilege.

In any event, the text of FISA does speak quite directly to the question otherwise answered by the dismissal remedy sometimes required by the common law state secrets privilege. Titled “In camera and ex parte review by district court,” § 1806(f) provides:

Whenever a court or other authority is notified pursuant to subsection (c) or (d) of this section, or whenever a motion is made pursuant to subsection (e) of this section, or whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter, the United States district court or, where the motion is made before another authority, the United States district court in the same district as the authority, shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that

56

FAZAGA V. WALLS

disclosure or an adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted. In making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.

50 U.S.C. § 1806(f) (emphasis added).

The phrase “notwithstanding any other law,” the several uses of the word “whenever,” and the command that courts “shall” use the § 1806(f) procedures to decide the lawfulness of the surveillance if the Attorney General asserts that national security is at risk, confirm Congress’s intent to make the in camera and ex parte procedure the exclusive procedure for evaluating evidence that threatens national security in the context of electronic surveillance-related determinations. Id. (emphasis added). That mandatory procedure necessarily overrides, on the one hand, the usual procedural rules precluding such severe compromises of the adversary process and, on the other, the state secrets evidentiary dismissal option. See H.R. Rep. No. 95-1283, pt. 1, at 91 (1978) (“It is to be emphasized that, although a number of different procedures might be used to attack the legality of the

FAZAGA V. WALLS

57

surveillance, it is the procedures set out in subsections (f) and
(g) ‘notwithstanding any other law’ that must be used to resolve the question.”).27

The procedures set out in § 1806(f) are animated by the same concerns—threats to national security—that underlie the state secrets privilege. See Jeppesen, 614 F.3d at 1077, 1080. And they are triggered by a process—the filing of an affidavit under oath by the Attorney General—nearly identical to the process that triggers application of the state secrets privilege, a formal assertion by the head of the relevant department. See id. at 1080. In this sense, § 1806(f) “is, in effect, a ‘codification of the state secrets privilege for purposes of relevant cases under FISA, as modified to reflect Congress’s precise directive to the federal courts for the handling of [electronic surveillance] materials and information with purported national security implications.’” Jewel, 965 F. Supp. 2d at 1106 (quoting In re NSA, 564 F. Supp. 2d at 1119); see also In re NSA, 564 F. Supp. 2d at 1119 (holding that “the Reynolds protocol has no role where section 1806(f) applies”). That § 1806(f) requires in camera and ex parte review in the exact circumstance that could otherwise trigger dismissal of the case demonstrates that § 1806(f) supplies an alternative mechanism for the consideration of electronic state secrets evidence. Section 1806(f) therefore eliminates the need to dismiss the case entirely because of the absence of any legally sanctioned

27 Whether “notwithstanding” language in a given statute should be understood to supersede all otherwise applicable laws or read more narrowly to override only previously existing laws depends on the overall context of the statute. See United States v. Novak, 476 F.3d 1041, 1046–47 (9th Cir. 2007) (en banc). Here, the distinction does not matter, as the Reynolds common law state secrets evidentiary privilege preceded the enactment of FISA.

58

FAZAGA V. WALLS

mechanism for a major modification of ordinary judicial procedures—in camera, ex parte decisionmaking.

This conclusion is consistent with the overall structure of FISA. FISA does not concern Congress and the President alone. Instead, the statute creates “a comprehensive, detailed program to regulate foreign intelligence surveillance in the domestic context.” In re NSA, 564 F. Supp. 2d at 1118. FISA “set[s] out in detail roles for all three branches of government, providing judicial and congressional oversight of the covert surveillance activities by the executive branch combined with measures to safeguard secrecy necessary to protect national security.” Id. at 1115. And it provides rules for the executive branch to follow in “undertak[ing] electronic surveillance and physical searches for foreign intelligence purposes in the domestic sphere.” Id.

Moreover, FISA establishes a special court to hear applications for and grant orders approving electronic surveillance under certain circumstances. See 50 U.S.C. § 1803. FISA also includes a private civil enforcement mechanism, see id. § 1810, and sets out a procedure by which courts should consider evidence that could harm the country’s national security, see id. § 1806(f). The statute thus broadly involves the courts in the regulation of electronic surveillance relating to national security, while devising extraordinary, partially secret judicial procedures for carrying out that involvement. And Congress expressly declared that FISA, along with the domestic law enforcement electronic surveillance provisions of the Wiretap Act and the Stored Communications Act, are “the exclusive means by which electronic surveillance . . . may be conducted.” 18 U.S.C. § 2511(2)(f).

FAZAGA V. WALLS

59

The legislative history of FISA confirms Congress’s intent to displace the remedy of dismissal for the common law state secrets privilege. FISA was enacted in response to “revelations that warrantless electronic surveillance in the name of national security ha[d] been seriously abused.” S. Rep. No. 95-604, pt. 1, at 7 (1978), reprinted in 1978 U.S.C.C.A.N. 3904, 3908. The Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, a congressional task force formed in 1975 and known as the Church Committee, exposed the unlawful surveillance in a series of investigative reports. The Church Committee documented “a massive record of intelligence abuses over the years,” in which “the Government ha[d] collected, and then used improperly, huge amounts of information about the private lives, political beliefs and associations of numerous Americans.” S. Select Comm. to Study Governmental Operations with Respect to Intelligence Activities, Book II: Intelligence Activities and the Rights of Americans, S. Rep. No. 94-755, at 290 (1976). The Committee concluded that these abuses had “undermined the constitutional rights of citizens . . . primarily because checks and balances designed by the framers of the Constitution to assure accountability [were not] applied.” Id. at 289.

Urging “fundamental reform,” id. at 289, the Committee recommended legislation to “make clear to the Executive branch that it will not condone, and does not accept, any theory of inherent or implied authority to violate the Constitution,” id. at 297. Observing that the Executive would have “no such authority after Congress has . . . covered the field by enactment of a comprehensive legislative charter” that would “provide the exclusive legal authority for domestic security activities,” id. at 297, the Committee recommended that Congress create civil remedies for unlawful surveillance,

60

FAZAGA V. WALLS

both to “afford effective redress to people who are injured by improper federal intelligence activity” and to “deter improper intelligence activity.” Id. at 336. Further, in recognition of the potential interplay between promoting accountability and ensuring security, the Committee noted its “belie[f] that the courts will be able to fashion discovery procedures, including inspection of material in chambers, and to issue orders as the interests of justice require, to allow plaintiffs with substantial claims to uncover enough factual material to argue their case, while protecting the secrecy of governmental information in which there is a legitimate security interest.” Id. at 337.

FISA implemented many of the Church Committee’s recommendations. In striking a careful balance between assuring the national security and protecting against electronic surveillance abuse, Congress carefully considered the role previously played by courts, and concluded that the judiciary had been unable effectively to achieve an appropriate balance through federal common law:

[T]he development of the law regulating electronic surveillance for national security purposes has been uneven and inconclusive. This is to be expected where the development is left to the judicial branch in an area where cases do not regularly come before it. Moreover, the development of standards and restrictions by the judiciary with respect to electronic surveillance for foreign intelligence purposes accomplished through case law threatens both civil liberties and the national security because that development occurs generally in ignorance of the facts, circumstances, and techniques of foreign

FAZAGA V. WALLS

61

intelligence electronic surveillance not present in the particular case before the court. . . . [T]he tiny window to this area which a particular case affords provides inadequate light by which judges may be relied upon to develop case law which adequately balances the rights of privacy and national security.

H. Rep. No. 95-1283, pt. 1, at 21. FISA thus represents an effort to “provide effective, reasonable safeguards to ensure accountability and prevent improper surveillance,” and to “strik[e] a fair and just balance between protection of national security and protection of personal liberties.” S. Rep. No. 95604, pt. 1, at 7.

In short, the procedures outlined in § 1806(f) “provide[] a detailed regime to determine whether surveillance ‘was lawfully authorized and conducted,’” Al-Haramain I, 507 F.3d at 1205 (citing 50 U.S.C. § 1806(f)), and constitute “Congress’s specific and detailed description for how courts should handle claims by the government that the disclosure of material relating to or derived from electronic surveillance would harm national security,” Jewel, 965 F. Supp. 2d at 1106 (quoting In re NSA, 564 F. Supp. 2d at 1119). Critically, the FISA approach does not publicly expose the state secrets. It does severely compromise plaintiffs’ procedural rights, but not to the degree of entirely extinguishing potentially meritorious substantive rights.

62

FAZAGA V. WALLS

D. Applicability of FISA’s § 1806(f) Procedures to Affirmative Legal Challenges to Electronic Surveillance

Having determined that, where they apply, § 1806(f)’s procedures displace a dismissal remedy for the Reynolds state secrets privilege, we now consider whether § 1806(f)’s procedures apply to the circumstances of this case.

By the statute’s terms, the procedures set forth in § 1806(f) are to be used—where the Attorney General files the requisite affidavit—in the following circumstances:

[w]henever a court or other authority is notified pursuant to subsection (c) or (d) of this section, or whenever a motion is made pursuant to subsection (e) of this section, or whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter.

50 U.S.C. § 1806(f). From this text and the cross-referenced subsections, we derive three circumstances in which the in camera and ex parte procedures are to be used: when (1) a governmental body gives notice of its intent “to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer,

FAZAGA V. WALLS

63

agency, regulatory body, or other authority of the United States, against an aggrieved person, any information obtained or derived from an electronic surveillance,” id. § 1806(c) (emphases added);28 (2) an aggrieved person moves to suppress the evidence, id. § 1806(e); or (3) an aggrieved person makes “any motion or request . . . pursuant to any other statute or rule . . . to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter,” id. § 1806(f) (emphasis added).

The case at hand fits within the contemplated circumstances in two respects. First, the Government, in its assertion of the state secrets privilege, has notified the court that it intends to use information obtained or derived from its electronic surveillance of Plaintiffs as part of its defense against Plaintiffs’ allegations. See id. § 1806(c). Specifically, the Attorney General’s privilege assertion encompassed, among other things, “any information obtained during the course of” Operation Flex, the “results of the investigation,” and “any results derived from” the “sources and methods” used in Operation Flex. It is precisely because the Government would like to use this information to defend itself that it has asserted the state secrets privilege. And the district court’s dismissal ruling was premised in part on the potential use of state secrets material to defend the case.

28 The text of § 1806(f) refers to notice “pursuant to subsection (c) or (d) of this section.” 50 U.S.C. § 1806(f) (emphasis added). Section 1806(d) describes verbatim the same procedures as contained in § 1806(c), except as applied to States and political subdivisions rather than to the United States. Id. § 1806(d). For convenience, we refer only to § 1806(c) in this opinion, but our analysis applies to § 1806(d) with equal force.

64

FAZAGA V. WALLS

Second, in their prayer for relief, Plaintiffs have requested injunctive relief “ordering Defendants to destroy or return any information gathered through the unlawful surveillance program by Monteilh and/or Operation Flex described above, and any information derived from that unlawfully obtained information.” Plaintiffs thus have requested, in the alternative, to “obtain” information gathered during or derived from electronic surveillance. See id. § 1806(f).

The Government disputes that FISA applies to this case. Its broader contention is that § 1806(f)’s procedures do not apply to any affirmative claims challenging the legality of electronic surveillance or the use of information derived from electronic surveillance, whether brought under FISA’s private right of action or any other constitutional provision, statute, or rule. Instead, the Government maintains, FISA’s procedures apply only when the government initiates the legal action, while the state secrets privilege applies when the government defends affirmative litigation brought by private parties.

The plain text and statutory structure of FISA provide otherwise. To begin, the language of the statute simply does not contain the limitations the Government suggests. As discussed above, § 1806(f)’s procedures are to be used in any one of three situations, each of which is separated in the statute by an “or.” See id. The first situation—when “the Government intends to enter into evidence or otherwise use or disclose information obtained or derived from an electronic surveillance . . . against an aggrieved person” in “any trial, hearing, or other proceeding,” id. § 1806(c) (emphasis added)—unambiguously encompasses affirmative as well as defensive challenges to the lawfulness of

FAZAGA V. WALLS

65

surveillance.29 The conduct governed by the statutory provision is the Government’s intended entry into evidence or other use or disclosure of information obtained or derived from electronic surveillance. “[A]gainst an aggrieved person” refers to and modifies the phrase “any information obtained or derived.” Id. As a matter of ordinary usage, the phrase “against an aggrieved person” cannot modify “any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States.” Id. Evidence—such as “any information obtained or derived from an electronic surveillance”—can properly be said to be “against” a party. See, e.g., U.S. Const. amend. V (“No person . . . shall be compelled in any criminal case to be a witness against himself . . . .”); Miranda v. Arizona, 384 U.S. 436, 460 (1966)

29 In full, § 1806(c) reads:
Whenever the Government intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, against an aggrieved person, any information obtained or derived from an electronic surveillance of that aggrieved person pursuant to the authority of this subchapter, the Government shall, prior to the trial, hearing, or other proceeding or at a reasonable time prior to an effort to so disclose or so use that information or submit it in evidence, notify the aggrieved person and the court or other authority in which the information is to be disclosed or used that the Government intends to so disclose or so use such information.
50 U.S.C. § 1806(c). Again, we refer to the text of § 1806(c) because § 1806(f)’s procedures apply “[w]henever a court or other authority is notified pursuant to subsection (c) or (d) of this section.” Id. § 1806(f).

66

FAZAGA V. WALLS

(“[O]ur accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth.” (emphasis added)). But a “trial, hearing, or other proceeding” is not for or against either party; such a proceeding is just an opportunity to introduce evidence. Also, as the phrase is set off by commas, “against an aggrieved person” is grammatically a separate modifier from the list of proceedings contained in § 1806(f). Were the phrase meant to modify the various proceedings, there would be no intervening comma setting it apart.

The third situation—when a “motion or request is made by an aggrieved person pursuant to any other statute or rule . . . before any court . . . to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter,” id. § 1806(f)—also by its plain text encompasses affirmative challenges to the legality of electronic surveillance. When an aggrieved person makes such a motion or request, or the government notifies the aggrieved person and the court that it intends to use or disclose information obtained or derived from electronic surveillance, the statute requires a court to use § 1806(f)’s procedures “to determine whether the surveillance . . . was lawfully authorized and conducted.” Id. In other words, a court must “determine whether the surveillance was authorized and conducted in a manner which did not violate any constitutional or statutory right.” S. Rep. No. 95-604, pt. 1, at 57; accord S. Rep. No. 95-701, at 63.

FAZAGA V. WALLS

67

The inference drawn from the text of § 1806 is bolstered by § 1810, which specifically creates a private right of action for an individual subjected to electronic surveillance in violation of FISA. FISA prohibits, for example, electronic surveillance of a U.S. person “solely upon the basis of activities protected by the first amendment to the Constitution of the United States.” 50 U.S.C. § 1805(a)(2)(A). Here, Plaintiffs allege they were surveilled solely on account of their religion. If true, such surveillance was necessarily unauthorized by FISA, and § 1810 subjects any persons who intentionally engaged in such surveillance to civil liability. It would make no sense for Congress to pass a comprehensive law concerning foreign intelligence surveillance, expressly enable aggrieved persons to sue for damages when that surveillance is unauthorized, see id. § 1810, and provide procedures deemed adequate for the review of national security-related evidence, see id. § 1806(f), but not intend for those very procedures to be used when an aggrieved person sues for damages under FISA’s civil enforcement mechanism. Permitting a § 1810 claim to be dismissed on the basis of the state secrets privilege because the § 1806(f) procedures are unavailable would dramatically undercut the utility of § 1810 in deterring FISA violations. Such a dismissal also would undermine the overarching goal of FISA more broadly—“curb[ing] the practice by which the Executive Branch may conduct warrantless electronic surveillance on its own unilateral determination that national security justifies it.” S. Rep. No. 95-604, pt. 1, at 8.

FISA’s legislative history confirms that § 1806(f)’s procedures were designed to apply in both civil and criminal cases, and to both affirmative and defensive use of electronic surveillance evidence. The Senate bill initially provided a single procedure for criminal and civil cases, while the House

68

FAZAGA V. WALLS

bill at the outset specified two separate procedures for determining the legality of electronic surveillance.30 In the end, the conference committee adopted a slightly modified version of the Senate bill, agreeing “that an in camera and ex parte proceeding is appropriate for determining the lawfulness of electronic surveillance in both criminal and civil cases.” H.R. Rep. No. 95-1720, at 32.

In the alternative, the Government suggests that § 1806(f)’s procedures for the use of electronic surveillance in litigation are limited to affirmative actions brought directly under § 1810. We disagree. The § 1806(f) procedures are expressly available, as well as mandatory, for affirmative claims brought “by an aggrieved person pursuant to any . . . statute or rule of the United States . . . before any court . . . of the United States.” 50 U.S.C. § 1806(f) (emphasis added). This provision was meant “to make very clear that these procedures apply whatever the underlying rule or statute” at issue, so as “to prevent these carefully drawn procedures from being bypassed by the inventive litigant using a new statute, rule or judicial construction.” H.R. Rep. No. 95-1283, pt. 1, at 91 (emphasis added).

30 Under the House bill, in criminal cases there would be an in camera proceeding, and the court could, but need not, disclose the materials relating to the surveillance to the aggrieved person “if there were a reasonable question as to the legality of the suveillance [sic] and if disclosure would likely promote a more accurate determination of such legality, or if disclosure would not harm the national security.” H.R. Rep. No. 95-1720, at 31 (1978) (Conf. Rep.), reprinted in 1978 U.S.C.C.A.N. 4048, 4060. In civil suits, there would be an in camera and ex parte proceeding before a court of appeals, and the court would disclose to the aggrieved person the materials relating to the surveillance “only if necessary to afford due process to the aggrieved person.” Id. at 32.

FAZAGA V. WALLS

69

Had Congress wanted to limit the use of § 1806(f)’s procedures only to affirmative claims alleging lack of compliance with FISA itself, it could have so specified, as it did in § 1809 and § 1810. Section 1810 creates a private right of action only for violations of § 1809. 50 U.S.C. § 1810. Section 1809 prohibits surveillance not authorized by FISA, the Wiretap Act, the Stored Communications Act, and the pen register statute. Id. § 1809(a). That § 1809 includes only certain, cross-referenced statutes while § 1810 is limited to violations of § 1809 contrasts with the broad language of § 1806(f) as to the types of litigation covered—litigation “pursuant to any . . . statute or rule of the United States.” Id. § 1806(f) (emphasis added).

Furthermore, if—as here—an aggrieved person brings a claim under § 1810 and a claim under another statute or the Constitution based on the same electronic surveillance as is involved in the § 1810 claim, it would make little sense for § 1806(f) to require the court to consider in camera and ex parte the evidence relating to electronic surveillance for purposes of the claim under § 1810 of FISA but not permit the court to consider the exact same evidence in the exact same way for purposes of the non-FISA claim. Once the information has been considered by a federal judge in camera and ex parte, any risk of disclosure—which Congress necessarily considered exceedingly small or it would not have permitted such examination—has already been incurred. There would be no point in dismissing other claims because of that same concern.

We are not the first to hold that § 1806(f)’s procedures may be used to adjudicate claims beyond those arising under § 1810. The D.C. Circuit expressly so held in ACLU

70

FAZAGA V. WALLS

Foundation of Southern California v. Barr, 952 F.2d 457 (D.C. Cir. 1991):

When a district court conducts a § 1806(f) review, its task is not simply to decide whether the surveillance complied with FISA. Section 1806(f) requires the court to decide whether the surveillance was “lawfully authorized and conducted.” The Constitution is law. Once the Attorney General invokes § 1806(f), the respondents named in that proceeding therefore must present not only their statutory but also their constitutional claims for decision.

Id. at 465; accord United States v. Johnson, 952 F.2d 565, 571–73, 571 n.4 (1st Cir. 1991) (using § 1806(f)’s in camera and ex parte procedures to review constitutional challenges to FISA surveillance).

In sum, the plain language, statutory structure, and legislative history demonstrate that Congress intended FISA to displace the state secrets privilege and its dismissal remedy with respect to electronic surveillance. Contrary to the Government’s contention, FISA’s § 1806(f) procedures are to be used when an aggrieved person affirmatively challenges, in any civil case, the legality of electronic surveillance or its use in litigation, whether the challenge is under FISA itself, the Constitution, or any other law.31

31 Some of the Agent Defendants contend that using the § 1806(f) procedures to adjudicate Plaintiffs’ claims would violate their due process and Seventh Amendment jury trial rights. This argument is unpersuasive. We and other courts have upheld the constitutionality of the FISA in

FAZAGA V. WALLS

71

E. Aggrieved Persons

We now consider more specifically whether FISA’s § 1806(f) procedures may be used in this case. Because the procedures apply when evidence will be introduced “against an aggrieved person,” 50 U.S.C. § 1806(c), and when “any motion or request is made by an aggrieved person,” id. § 1806(f), Plaintiffs must satisfy the definition of an “aggrieved person,” see id. § 1801(k).

We addressed the “aggrieved person” requirement in part in the discussion of Plaintiffs’ § 1810 claim against the Agent Defendants. As we there explained, because Fazaga had a reasonable expectation of privacy in his office, and AbdelRahim had a reasonable expectation of privacy in his home, car, and phone, Plaintiffs are properly considered aggrieved persons as to those categories of surveillance. See supra Part I.C. And although we noted that the Agent Defendants are entitled to qualified immunity on Plaintiffs’ FISA § 1810 claim with respect to the recording of conversation in the mosque prayer halls, Plaintiffs had a reasonable expectation of privacy in those conversations and thus are still properly considered aggrieved persons as to that category of surveillance as well. See supra Part I.B.

camera and ex parte procedures with regard to criminal defendants. See United States v. Abu-Jihaad, 630 F.3d 102, 117–29 (2d Cir. 2010); United States v. Damrah, 412 F.3d 618, 625 (6th Cir. 2005); United States v. Ott, 827 F.2d 473, 476–77, 477 n.5 (9th Cir. 1987); United States v. Belfield, 692 F.2d 141, 148–49 (D.C. Cir. 1982); United States v. Mahamud, 838 F. Supp. 2d 881, 888–89 (D. Minn. 2012); United States v. Nicholson, 955 F. Supp. 588, 590–92, 590 n.3 (E.D. Va. 1997) (collecting cases). Individual defendants in a civil suit are not entitled to more stringent protections than criminal defendants.

72

FAZAGA V. WALLS

Again, because Plaintiffs are properly considered “aggrieved” for purposes of FISA, two of the situations referenced in § 1806(f) are directly applicable here. The Government intends to use “information obtained or derived from an electronic surveillance” against Plaintiffs, who are “aggrieved person[s].” 50 U.S.C. § 1806(c). And Plaintiffs are “aggrieved person[s]” who have attempted “to discover or obtain applications or orders or other materials relating to electronic surveillance.” Id. § 1806(f).

* * * *

We next turn to considering whether the claims other than the FISA § 1810 claim must be dismissed for reasons independent of the state secrets privilege, limiting ourselves to the arguments for dismissal raised in Defendants’ motions to dismiss.

III. Search Claims

In this part, we discuss (1) the Fourth Amendment injunctive relief claim against the official-capacity defendants; and (2) the Fourth Amendment Bivens claim against the Agent Defendants.

A. Fourth Amendment Injunctive Relief Claim Against the Official-Capacity Defendants

The Government’s primary argument for dismissal of the constitutional claims brought against the official-capacity defendants, including the Fourth Amendment claim, is that the injunctive relief sought—the expungement of all records unconstitutionally obtained and maintained—is unavailable under the Constitution. Not so.

FAZAGA V. WALLS

73

We have repeatedly and consistently recognized that federal courts can order expungement of records, criminal and otherwise, to vindicate constitutional rights.32 The Privacy Act, 5 U.S.C. § 552a, which (1) establishes a set of practices governing the collection, maintenance, use, and dissemination of information about individuals maintained in records systems by federal agencies, and (2) creates federal claims for relief for violations of the Act’s substantive provisions, does not displace the availability of expungement

32 See, e.g., United States v. Sumner, 226 F.3d 1005, 1012 (9th Cir. 2000) (“A district court has the power to expunge a criminal record under . . . the Constitution itself.”); Burnsworth v. Gunderson, 179 F.3d 771, 775 (9th Cir. 1999) (holding that expungement of an escape conviction from prison records was an appropriate remedy for a due process violation); Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1275 (9th Cir. 1998) (explaining that expungement of unconstitutionally obtained medical records “would be an appropriate remedy for the alleged violation”); United States v. Smith, 940 F.2d 395, 396 (9th Cir. 1991) (per curiam) (explaining that “recognized circumstances supporting expunction” include an unlawful or invalid arrest or conviction and government misconduct); Fendler v. U.S. Parole Comm’n, 774 F.2d 975, 979 (9th Cir. 1985) (“Federal courts have the equitable power ‘to order the expungement of Government records where necessary to vindicate rights secured by the Constitution or by statute.’” (quoting Chastain v. Kelley, 510 F.2d 1232, 1235 (D.C. Cir. 1975))); Maurer v. Pitchess, 691 F.2d 434, 437 (9th Cir. 1982) (“It is well settled that the federal courts have inherent equitable power to order ‘the expungement of local arrest records as an appropriate remedy in the wake of police action in violation of constitutional rights.’” (quoting Sullivan v. Murphy, 478 F.2d 938, 968 (D.C. Cir. 1973))); Shipp v. Todd, 568 F.2d 133, 134 (9th Cir. 1978) (“It is established that the federal courts have inherent power to expunge criminal records when necessary to preserve basic legal rights.”) (quoting United States v. McMains, 540 F.2d 387, 389 (8th Cir. 1976)).

74

FAZAGA V. WALLS

relief under the Constitution.33 Previous cases involving claims brought under both the Privacy Act and the Constitution did not treat the Privacy Act as displacing a constitutional claim, but instead analyzed the claims separately.34 And the circuits that have directly considered whether the Privacy Act displaces parallel constitutional remedies have all concluded that a plaintiff may pursue a remedy under both the Constitution and the Privacy Act.35

33 The cases cited by the Government to the contrary are inapposite. See City of Milwaukee, 451 U.S. at 314–16 (addressing the congressional displacement of federal common law through legislation, not the elimination of injunctive remedies available under the Constitution); Bush v. Lucas, 462 U.S. 367, 386–88 (1983) (discussing preclusion of a Bivens claim for damages where Congress had already designed a comprehensive remedial scheme, not whether a statute can displace a recognized constitutional claim for injunctive relief); Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 936–37 (D.C. Cir. 2003) (discussing the displacement of a common law right of access to public records by the Freedom of Information Act in a case not involving the Privacy Act or a claim for injunctive relief from an alleged ongoing constitutional violation).
34 See Hewitt v. Grabicki, 794 F.2d 1373, 1377, 1380 (9th Cir. 1986) (addressing separately a claim for damages under the Privacy Act and a procedural due process claim); Fendler, 774 F.2d at 979 (considering a prisoner’s Privacy Act claims and then, separately, his claim for expungement relief under the Constitution).
35 See Abdelfattah v. U.S. Dep’t of Homeland Sec., 787 F.3d 524, 534 (D.C. Cir. 2015) (“We have repeatedly recognized a plaintiff may request expungement of agency records for both violations of the Privacy Act and the Constitution.”); Clarkson v. IRS, 678 F.2d 1368, 1376 n.13 (11th Cir. 1982) (“[W]e of course do not intend to suggest that the enactment of the Privacy Act in any way precludes a plaintiff from asserting a constitutional claim for violation of his privacy or First Amendment rights. Indeed, several courts have recognized that a plaintiff is free to assert both Privacy Act and constitutional claims.”).

FAZAGA V. WALLS

75

In addition to its Privacy Act displacement theory, the Government contends that even if expungement relief is otherwise available under the Constitution, it is not available here, as Plaintiffs “advance no plausible claim of an ongoing constitutional violation.” Again, we disagree.

This court has been clear that a determination that records were obtained and retained in violation of the Constitution supports a claim for expungement relief of existing records so obtained. As Norman-Bloodsaw explained:

Even if the continued storage, against plaintiffs’ wishes, of intimate medical information that was allegedly taken from them by unconstitutional means does not itself constitute a violation of law, it is clearly an ongoing “effect” of the allegedly unconstitutional and discriminatory testing, and expungement of the test results would be an appropriate remedy for the alleged violation. . . . At the very least, the retention of undisputedly intimate medical information obtained in an unconstitutional and discriminatory manner would constitute a continuing “irreparable injury” for purposes of equitable relief.

135 F.3d at 1275; see also Wilson v. Webster, 467 F.2d 1282, 1283–84 (9th Cir. 1972) (holding that plaintiffs had a right to show that records of unlawful arrests “should be expunged, for their continued existence may seriously and unjustifiably serve to impair fundamental rights of the persons to whom they relate”).

76

FAZAGA V. WALLS

In short, expungement relief is available under the Constitution to remedy the alleged constitutional violations.36 Because the Government raises no other argument for dismissal of the Fourth Amendment injunctive relief claim, it should not have been dismissed.

B. Fourth Amendment Bivens Claim Against the Agent Defendants

Alleging that the Agent Defendants violated the Fourth Amendment, Plaintiffs seek monetary damages directly under the Constitution under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In Bivens, the Supreme Court “recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen’s constitutional rights.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). “The purpose of Bivens is to deter individual federal officers from committing constitutional violations.” Id. at 70.

Bivens itself concerned a Fourth Amendment violation by federal officers. As we have recognized, a Fourth Amendment damages claim premised on unauthorized electronic surveillance by FBI agents and their surrogates “fall[s] directly within the coverage of Bivens.” Gibson v. United States, 781 F.2d 1334, 1341 (9th Cir. 1986); see also Mitchell v. Forsyth, 472 U.S. 511, 513 (1985) (considering, under Bivens, an alleged “warrantless wiretap” conducted in violation of the Fourth Amendment). Recent cases, however, have severely restricted the availability of Bivens actions for

36 We do not at this stage, of course, address whether Plaintiffs are actually entitled to such a remedy.

FAZAGA V. WALLS

77

new claims and contexts. See Ziglar v. Abbasi, 137 S.Ct. 1843, 1856–57 (2017).37

Here, the substance of Plaintiffs’ Fourth Amendment Bivens claim is identical to the allegations raised in their FISA § 1810 claim. Under our rulings regarding the reach of the § 1806(f) procedures, almost all of the search-and-seizure allegations will be subject to those procedures. Thus, regardless of whether a Bivens remedy is available, Plaintiffs’ underlying claim—that the Agent Defendants engaged in unlawful electronic surveillance violative of the Fourth Amendment—would proceed in the same way.

Moreover, if the Fourth Amendment Bivens claim proceeds, the Agent Defendants are entitled to qualified immunity on Plaintiffs’ Fourth Amendment Bivens claim to the same extent they are entitled to qualified immunity on Plaintiffs’ FISA claim. In both instances, the substantive law derives from the Fourth Amendment, and in both instances, government officials in their individual capacity are subject to liability for damages only if they violated a clearly established right to freedom from governmental intrusion where an individual has a reasonable expectation of privacy. See supra Part I.B. Under our earlier rulings, the FISA search-and-seizure allegations may proceed against only two of the Agent Defendants, and only with respect to a narrow aspect of the alleged surveillance.

In light of the overlap between the Bivens claim and the narrow range of the remaining FISA claim against the Agent Defendants that can proceed, it is far from clear that Plaintiffs

37 The parties have not briefed before us the impact of Abbasi on the Bivens claims.

78

FAZAGA V. WALLS

will continue to press this claim. We therefore decline to address whether Plaintiffs’ Bivens claim remains available after the Supreme Court’s decision in Abbasi. On remand, the district court may determine—if necessary—whether a Bivens remedy is appropriate for any Fourth Amendment claim against the Agent Defendants.

IV. Religion Claims

The other set of Plaintiffs’ claims arise from their allegation that they were targeted for surveillance solely because of their religion.38 In this part, we discuss Plaintiffs’ (1) First and Fifth Amendment injunctive relief claims against the official-capacity defendants; (2) First and Fifth Amendment Bivens claims against the Agent Defendants; (3) § 1985(3) claims for violations of the Free Exercise Clause, Establishment Clause, and equal protection guarantee; (4) RFRA claim; (5) Privacy Act claim; and (6) FTCA claims. Our focus throughout is whether there are grounds for dismissal independent of the Government’s invocation of the state secrets privilege.

A. First Amendment and Fifth Amendment Injunctive Relief Claims Against the OfficialCapacity Defendants

Plaintiffs maintain that it violates the First Amendment’s Religion Clauses and the equal protection component of the Fifth Amendment for the Government to target them for surveillance because of their adherence to and practice of

38 The operative complaint alleges as a factual matter that Plaintiffs were surveilled solely because of their religion. We limit our legal discussion to the facts there alleged.

FAZAGA V. WALLS

79

Islam. The Government does not challenge the First and Fifth Amendment claims substantively. It argues only that injunctive relief is unavailable and that litigating the claims is not possible without risking the disclosure of state secrets. We have already concluded that injunctive relief, including expungement, is available under the Constitution where there is a substantively viable challenge to government action, see supra Part III.A, and that dismissal because of the state secrets concern was improper because of the availability of the § 1806(f) procedures, see supra Part II. Accordingly, considering only the arguments put forward by the Government, we conclude that the First and Fifth Amendment claims against the official-capacity defendants may go forward.

B. First Amendment and Fifth Amendment Bivens Claims Against the Agent Defendants

Plaintiffs seek monetary damages directly under the First Amendment’s Establishment and Free Exercise Clauses and the equal protection component of the Fifth Amendment’s Due Process Clause, relying on Bivens v. Six Unknown Named Agents.

We will not recognize a Bivens claim where there is “‘any alternative, existing process for protecting’ the plaintiff’s interests.” W. Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d 1116, 1120 (9th Cir. 2009) (quoting Wilkie v. Robbins, 551 U.S. 537, 550 (2007)). The existence of such an alternative remedy raises the inference that Congress “‘expected the Judiciary to stay its Bivens hand’ and ‘refrain from providing a new and freestanding remedy in damages.’” Id. (quoting Wilkie, 551 U.S. at 550, 554); see also Abbasi, 137 S. Ct. at 1863; Schweiker v. Chilicky, 487 U.S. 412, 423

80

FAZAGA V. WALLS

(1988). Accordingly, we “refrain[] from creating a judicially implied remedy even when the available statutory remedies ‘do not provide complete relief’ for a plaintiff that has suffered a constitutional violation.’” W. Radio Servs., 578 F.3d at 1120 (quoting Malesko, 534 U.S. at 69). As long as “an avenue for some redress” exists, “bedrock principles of separation of powers forclose[s] judicial imposition of a new substantive liability.’” Id. (alteration in original) (quoting Malesko, 534 U.S. at 69).

Here, we conclude that the Privacy Act, 5 U.S.C. § 552a, and the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq., taken together, provide an alternative remedial scheme for some, but not all, of Plaintiffs’ First and Fifth Amendment Bivens claims. As to the remaining Bivens claims, we remand to the district court to decide whether a Bivens remedy is available in light of the Supreme Court’s decision in Abbasi.

As to the collection and maintenance of records, Plaintiffs could have, and indeed did, challenge the FBI’s surveillance of them under the Privacy Act’s remedial scheme. Again, the Privacy Act, 5 U.S.C. § 552a, creates a set of rules governing how such records should be kept by federal agencies. See supra Part III.A. Under § 552a(e)(7), an “agency that maintains a system of records shall maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity.”39 When an agency fails to comply with

39 The term “maintain” is defined to mean “maintain, collect, use, or disseminate.” 5 U.S.C. § 552a(a)(3).

FAZAGA V. WALLS

81

§ 552a(e)(7), an individual may bring a civil action against the agency for damages. Id. § 552a(g)(1)(D), (g)(4). Thus, § 552a(e)(7) limits the government’s ability to collect, maintain, use, or disseminate information on an individual’s religious activity protected by the First Amendment’s Religion Clauses.

We have not addressed the availability of a Bivens action where the Privacy Act may be applicable. But two other circuits have, and both held that the Privacy Act supplants Bivens claims for First and Fifth Amendment violations. See Wilson v. Libby, 535 F.3d 697, 707–08 (D.C. Cir. 2008) (holding, in response to claims alleging harm from the improper disclosure of information subject to the Privacy Act’s protections, that the Privacy Act is a comprehensive remedial scheme that precludes an additional Bivens remedy); Downie v. City of Middleburg Heights, 301 F.3d 688, 696 & n.7 (6th Cir. 2002) (holding that the Privacy Act displaces Bivens for claims involving the creation, maintenance, and dissemination of false records by federal agency employees). We agree with the analyses in Wilson and Downie.

Although the Privacy Act provides a remedy only against the FBI, not the individual federal officers, the lack of relief against some potential defendants does not disqualify the Privacy Act as an alternative remedial scheme. Again, a Bivens remedy may be foreclosed “even when the available statutory remedies ‘do not provide complete relief’ for a plaintiff,” as long as “the plaintiff ha[s] an avenue for some redress.” W. Radio Servs., 578 F.3d at 1120 (alteration in original) (emphasis added) (quoting Malesko, 534 U.S. at 69). Thus, to the extent that Plaintiffs’ Bivens claims involve improper collection and retention of agency records, the Privacy Act precludes such Bivens claims.

82

FAZAGA V. WALLS

As to religious discrimination more generally, we conclude that RFRA precludes some, but not all, of Plaintiffs’ Bivens claims. RFRA provides that absent a “compelling governmental interest” and narrow tailoring, 42 U.S.C. § 2000bb-1(b), the “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” Id. § 2000bb1(a). The statute was enacted “to provide a claim or defense to persons whose religious exercise is substantially burdened by government.” Id. § 2000bb(b)(2). It therefore provided that “[a] person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.” Id. § 2000bb-1(c). RFRA thus provides a means for Plaintiffs to seek relief for the alleged burden of the surveillance itself on their exercise of their religion.

RFRA does not, however, provide an alternative remedial scheme for all of Plaintiffs’ discrimination-based Bivens claims. RFRA was enacted in response to Employment Division v. Smith, 494 U.S. 872 (1990), which, in Congress’s view, “virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion,” 42 U.S.C. § 2000bb(a)(4). Accordingly, “to restore the compelling interest test . . . and to guarantee its application in all cases where free exercise of religion is substantially burdened,” id. § 2000bb(b)(1), RFRA directs its focus on “rule[s] of general applicability” that “substantially burden a person’s exercise of religion,” id. § 2000bb-1(a).

Here, many of Plaintiffs’ allegations relate not to neutral and generally applicable government action, but to conduct

FAZAGA V. WALLS

83

motivated by intentional discrimination against Plaintiffs because of their Muslim faith. Regardless of the magnitude of the burden imposed, “if the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral” and “is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993) (emphasis added). It is the Free Exercise Clause of the First Amendment—not RFRA— that imposes this requirement.

Moreover, by its terms, RFRA applies only to the “free exercise of religion,” 42 U.S.C. § 2000bb(a)(1); indeed, it expressly disclaims any effect on “that portion of the First Amendment prohibiting laws respecting the establishment of religion,” id. § 2000bb-4. But intentional religious discrimination is “subject to heightened scrutiny whether [it] arise[s] under the Free Exercise Clause, the Establishment Clause, or the Equal Protection Clause.” Colo. Christian Univ. v. Weaver, 534 F.3d 1245, 1266 (10th Cir. 2008) (citations omitted). Here, Plaintiffs have raised religion claims based on all three constitutional provisions. Because RFRA does not provide an alternative remedial scheme for protecting these interests, we conclude that RFRA does not preclude Plaintiffs’ religion-based Bivens claims.

We conclude that the Privacy Act and RFRA, taken together, function as an alternative remedial scheme for protecting some, but not all, of the interests Plaintiffs seek to vindicate via their First and Fifth Amendment Bivens claims. The district court never addressed whether a Bivens remedy is available for any of the religion claims because it dismissed the claims in their entirety based on the state secrets privilege. In addition, Abbasi has now clarified the standard for

84

FAZAGA V. WALLS

determining when a Bivens remedy is available for a particular alleged constitutional violation. And, as we have explained, the scope of the religion claims to which a Bivens remedy might apply is considerably narrower than those alleged, given the partial displacement by the Privacy Act and RFRA. If asked, the district court should determine on remand, applying Abbasi, whether a Bivens remedy is available to the degree the damages remedy is not displaced by the Privacy Act and RFRA.

C. 42 U.S.C. § 1985(3) Claims Against the Agent Defendants

Plaintiffs allege that the Agent Defendants conspired to deprive Plaintiffs of their rights under the First Amendment’s Establishment and Free Exercise Clauses and the due process guarantee of the Fifth Amendment, in violation of 42 U.S.C. § 1985(3).

To state a violation of § 1985(3), Plaintiffs must “allege and prove four elements”:

(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.

United Bhd. of Carpenters & Joiners of Am., Local 610 v. Scott, 463 U.S. 825, 828–29 (1983). The Defendants attack

FAZAGA V. WALLS

85

these claims on various grounds, but we reach only one—whether § 1985(3) conspiracies among employees of the same government entity are barred by the intracorporate conspiracy doctrine.

Abbasi makes clear that intracorporate liability was not clearly established at the time of the events in this case and that the Agent Defendants are therefore entitled to qualified immunity from liability under § 1985(3). See 137 S. Ct. at 1866.

In Abbasi, men of Arab and South Asian descent detained in the aftermath of September 11 sued two wardens of the federal detention center in Brooklyn in which they were held, along with several high-level Executive Branch officials who were alleged to have authorized their detention. Id. at 1853. They alleged, among other claims, a conspiracy among the defendants to deprive them of the equal protection of the laws under § 1985(3).40 Id. at 1853–54. Abbasi held that, even assuming these allegations to be “true and well pleaded,” the defendants were entitled to qualified immunity on the § 1985(3) claim. Id. at 1866–67. It was not “clearly established” at the time, the Court held, that the intracorporate conspiracy doctrine did not bar § 1985(3) liability for employees of the same government department who conspired among themselves. Id. at 1867–68. “[T]he fact that the courts are divided as to whether or not a § 1985(3) conspiracy can arise from official discussions between or among agents of the same entity demonstrates that the law on

40 Specifically, the plaintiffs alleged that these officials “conspired with one another to hold respondents in harsh conditions because of their actual or apparent race, religion, or national origin.” Abbasi, 137 S. Ct. at 1854.

86

FAZAGA V. WALLS

the point is not well established.” Id. at 1868. “[R]easonable officials in petitioners’ positions would not have known, and could not have predicted, that § 1985(3) prohibited their joint consultations.” Id. at 1867. The Court declined, however, to resolve the issue on the merits. Id.

Abbasi controls. Although the underlying facts here differ from those in Abbasi, the dispositive issue here, as in Abbasi, is whether the Agent Defendants could reasonably have known that agreements entered into or agreed-upon policies devised with other employees of the FBI could subject them to conspiracy liability under § 1985(3). At the time the Plaintiffs allege they were surveilled, neither this court nor the Supreme Court had held that an intracorporate agreement could subject federal officials to liability under § 1985(3), and the circuits that had decided the issue were split.41 There was therefore, as in Abbasi, no clearly established law on the question. As the Agent Defendants are entitled to qualified immunity on the § 1985(3) allegations in the complaint, we affirm their dismissal on that ground.

41 Two circuits have held that the intracorporate conspiracy doctrine does not extend to civil rights cases. See Brever v. Rockwell Int’l Corp., 40 F.3d 1119, 1127 (10th Cir. 1994); Novotny v. Great Am. Fed. Sav. & Loan Ass’n, 584 F.2d 1235, 1257–58 (3d Cir. 1978) (en banc), vacated on other grounds, 442 U.S. 366 (1979); see also Stathos v. Bowden, 728 F.2d 15, 20–21 (1st Cir. 1984) (expressing “doubt” that the intracorporate conspiracy doctrine extends to conspiracy under § 1985(3)). The majority of the circuits have reached a contrary result. See Hartline v. Gallo, 546 F.3d 95, 99 n.3 (2d Cir. 2008); Meyers v. Starke, 420 F.3d 738, 742 (8th Cir. 2005); Dickerson v. Alachua Cty. Comm’n, 200 F.3d 761, 767–68 (11th Cir. 2000); Benningfield v. City of Houston, 157 F.3d 369, 378 (5th Cir. 1998); Wright v. Ill. Dep’t of Children & Family Servs., 40 F.3d 1492, 1508 (7th Cir. 1994); Hull v. Cuyahoga Valley Joint Vocational Sch. Dist. Bd. of Educ., 926 F.2d 505, 509–10 (6th Cir. 1991); Buschi v. Kirven, 775 F.2d 1240, 1252–53 (4th Cir. 1985).

FAZAGA V. WALLS

87

D. Religious Freedom Restoration Act Claim Against the Agent Defendants and Government Defendants

Plaintiffs allege that the Defendants violated the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb, by substantially burdening Plaintiffs’ exercise of religion, and did so neither in furtherance of a compelling governmental interest nor by adopting the least restrictive means of furthering any such interest. The Government Defendants offer no argument for dismissal of the RFRA claim other than the state secrets privilege. The Agent Defendants, however, contend that they are entitled to qualified immunity on the RFRA claim because Plaintiffs failed to plead a substantial burden on their religion, and if they did so plead, no clearly established law supported that conclusion at the relevant time.42

To establish a prima facie claim under RFRA, a plaintiff must “present evidence sufficient to allow a trier of fact rationally to find the existence of two elements.” Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1068 (9th Cir. 2008) (en banc). “First, the activities the plaintiff claims are

42 The parties do not dispute that qualified immunity is an available defense to a RFRA claim. We therefore assume it is. See Padilla v. Yoo, 678 F.3d 748, 768 (9th Cir. 2012); Lebron v. Rumsfeld, 670 F.3d 540, 560 (4th Cir. 2012).
Tidwell and Walls also contend that Plaintiffs’ RFRA claim was properly dismissed because RFRA does not permit damages suits against individual-capacity defendants. Because we affirm dismissal on another ground, we do not reach that issue. We note, however, that at least two other circuits have held that damages are available for RFRA suits against individual-capacity defendants. See Tanvir v. Tanzin, 894 F.3d 449, 467 (2d Cir. 2018); Mack v. Warden Loretto FCI, 839 F.3d 286, 302 (3d Cir. 2016).

88

FAZAGA V. WALLS

burdened by the government action must be an ‘exercise of religion.’” Id. (quoting 42 U.S.C. § 2000bb-1(a)). “Second, the government action must ‘substantially burden’ the plaintiff’s exercise of religion.” Id. Once a plaintiff has established those elements, “the burden of persuasion shifts to the government to prove that the challenged government action is in furtherance of a ‘compelling governmental interest’ and is implemented by ‘the least restrictive means.’” Id. (quoting 42 U.S.C. § 2000bb-1(b)).

“Under RFRA, a ‘substantial burden’ is imposed only when individuals are forced to choose between following the tenets of their religion and receiving a governmental benefit . . . or coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions . . . .” Id. at 1069–70; see also Oklevueha Native Am. Church of Haw., Inc. v. Lynch, 828 F.3d 1012, 1016 (9th Cir. 2016). An effect on an individual’s “subjective, emotional religious experience” does not constitute a substantial burden, Navajo Nation, 535 F.3d at 1070, nor does “a government action that decreases the spirituality, the fervor, or the satisfaction with which a believer practices his religion,” id. at 1063.

Plaintiffs do allege that they altered their religious practices as a result of the FBI’s surveillance: Malik trimmed his beard, stopped regularly wearing a skull cap, decreased his attendance at the mosque, and became less welcoming to newcomers than he believes his religion requires. AbdelRahim “significantly decreased his attendance to mosque,” limited his donations to mosque institutions, and became less welcoming to newcomers than he believes his religion requires. Fazaga, who provided counseling at the mosque as an imam and an intern therapist, stopped

FAZAGA V. WALLS

89

counseling congregants at the mosque because he feared the conversations would be monitored and thus not confidential.

But it was not clearly established in 2006 or 2007 that covert surveillance conducted on the basis of religion would meet the RFRA standards for constituting a substantial religious burden on individual congregants. There simply was no case law in 2006 or 2007 that would have put the Agent Defendants on notice that covert surveillance on the basis of religion could violate RFRA. And at least two cases from our circuit could be read to point in the opposite direction, though they were brought under the First Amendment’s Religion Clauses rather than under RFRA. See Vernon v. City of Los Angeles, 27 F.3d 1385, 1394 (9th Cir. 1994); Presbyterian Church, 870 F.2d at 527.43

Presbyterian Church concerned an undercover investigation by INS of the sanctuary movement. 870 F.2d at 520. Over nearly a year, several INS agents infiltrated four churches in Arizona, attending and secretly recording church services. Id. The covert surveillance was later publicly disclosed in the course of criminal proceedings against individuals involved with the sanctuary movement. Id. The four churches brought suit, alleging a violation of their right to free exercise of religion. Id. We held that the individual

43 Presbyterian Church predates Employment Division v. Smith, which declined to use the compelling interest test from Sherbert v. Verner, 374 U.S. 398 (1963). Smith, 494 U.S. at 883–85. The other case, Vernon, postdates RFRA, which in 1993 restored Sherbert’s compelling interest test. See 27 F.3d at 1393 n.1; see also 42 U.S.C. § 2000bb(b). Although the compelling interest balancing test was in flux during this period, the notion that a burden on religious practice was required to state a claim was not. RFRA continued the same substantial burden standard as was required by the constitutional cases. See Vernon, 27 F.3d at 1393.

90

FAZAGA V. WALLS

INS agents named as defendants were entitled to qualified immunity because there was “no support in the preexisting case law” to suggest that “it must have been apparent to INS officials that undercover electronic surveillance of church services without a warrant and without probable cause violated the churches’ clearly established rights under the First . . . Amendment[].” Id. at 527.

In Vernon, the Los Angeles Police Department (“LAPD”) investigated Vernon, the Assistant Chief of Police of the LAPD, in response to allegations that Vernon’s religious beliefs had interfered with his ability or willingness to fairly perform his official duties. 27 F.3d at 1389. Vernon filed a § 1983 action, maintaining that the preinvestigation activities and the investigation itself violated the Free Exercise Clause. Id. at 1390. In his complaint, Vernon alleged that the investigation “chilled [him] in the exercise of his religious beliefs, fearing that he can no longer worship as he chooses, consult with his ministers and the elders of his church, participate in Christian fellowship and give public testimony to his faith without severe consequences.” Id. at 1394. We held that Vernon failed to demonstrate a substantial burden on his religious observance and so affirmed the district court’s dismissal of his free exercise claim. Id. at 1395. We noted that Vernon “failed to show any concrete and demonstrable injury.” Id. “Vernon complain[ed] that the existence of a government investigation has discouraged him from pursuing his personal religious beliefs and practices—in other words, mere subjective chilling effects with neither ‘a claim of specific present objective harm [n]or a threat of specific future harm.’” Id. (quoting Laird v. Tatum, 408 U.S. 1, 14 (1972)).

FAZAGA V. WALLS

91

Vernon and Presbyterian Church were decided before the surveillance Plaintiffs allege substantially burdened their exercise of religion. Both cases cast doubt upon whether surveillance such as that alleged here constitutes a substantial burden upon religious practice. There is no pertinent case law indicating otherwise. It was therefore not clearly established in 2006 or 2007 that Defendants’ actions violated Plaintiffs’ freedom of religion, protected by RFRA.44

As to the Agent Defendants, therefore, we affirm the dismissal of the RFRA claim. But because the Government Defendants are not subject to the same qualified immunity analysis and made no arguments in support of dismissing the RFRA claim other than the state secrets privilege, we hold that the complaint substantively states a RFRA claim against the Government Defendants.45

44 These cases do not, however, entitle the Agent Defendants to qualified immunity as to claims involving intentional discrimination based on Plaintiffs’ religion. As discussed in supra Part IV.B, those claims do not require that Plaintiffs show a substantial burden on the exercise of their religion. That principle was clearly established well before the events in this case. See, e.g., Lukumi, 508 U.S. at 546; Larson v. Valente, 456 U.S. 228, 244 (1982). Thus, to the extent that Plaintiffs’ religionbased Bivens claims may proceed, the Agent Defendants are not entitled to qualified immunity for those claims.
45 We do not address any other defenses the Government Defendants may raise before the district court in response to Plaintiffs’ RFRA claim.

92

FAZAGA V. WALLS

E. Privacy Act Claim Against the FBI

Plaintiffs allege that the FBI violated the Privacy Act, 5 U.S.C. § 552a(e)(7),46 by collecting and maintaining records describing how Plaintiffs exercised their First Amendment rights. As a remedy, Plaintiffs seek only injunctive relief ordering the destruction or return of unlawfully obtained information. Cell Associates, Inc. v. National Institutes of Health, 579 F.2d 1155 (9th Cir. 1978), which interpreted the scope of Privacy Act remedies, precludes such injunctive relief.

The “Civil remedies” section of the Privacy Act, 5 U.S.C. § 552a(g), lists four types of agency misconduct and the remedies applicable to each. The statute expressly provides that injunctive relief is available when an agency improperly denies a request to amend or disclose an individual’s record, see 5 U.S.C. § 552a(g)(1)(A), (2)(A), (1)(B), (3)(A), but provides only for damages when the agency “fails to maintain any record” with the “accuracy, relevance, timeliness, and completeness” required for fairness, id. § 552a(g)(1)(C), or if the agency “fails to comply with any other provision” of the Privacy Act, id. § 552a(g)(1)(D). See id. § 552a(g)(4). Cell Associates concluded that this distinction was purposeful—that is, that Congress intended to limit the availability of injunctive relief to the categories of agency

46 The header to Plaintiffs’ Eighth Cause of Action reads broadly, “Violation of the Privacy Act, 5 U.S.C. § 552a(a)–(l).” As actually pleaded and briefed, however, the substance of Plaintiffs’ Privacy Act claim is limited to § 552a(e)(7). The complaint states that “Defendant FBI . . . collected and maintained records . . . in violation of 5 U.S.C. § 552a(e)(7).” And Plaintiffs’ reply brief states that they “seek expungement . . . under 5 U.S.C. § 552a(e)(7).”

FAZAGA V. WALLS

93

misconduct for which injunctive relief was specified as a remedy:

The addition of a right to injunctive relief for one type of violation, coupled with the failure to provide injunctive relief for another type of violation, suggests that Congress knew what it was about and intended the remedies specified in the Act to be exclusive. While the right to damages might seem an inadequate safeguard against unwarranted disclosures of agency records, we think it plain that Congress limited injunctive relief to the situations described in 5 U.S.C. § 552a(g)(1)(A) and (2) and (1)(B) and (3).

579 F.2d at 1161.

A violation of § 552a(e)(7) falls within the catch-all remedy provision, applicable if the agency “fails to comply with any other provision” of the Privacy Act. 5 U.S.C. § 552a(g)(1)(D). As the statute does not expressly provide for injunctive relief for a violation of this catch-all provision, Cell Associates precludes injunctive relief for a violation of § 552a(e)(7).

Plaintiffs attempt to avoid the precedential impact of Cell Associates on the ground that it “nowhere mentions Section 552a(e)(7).” That is so, but the holding of Cell Associates nonetheless applies directly to this case. The Privacy Act specifies that injunctive relief is available for violations of some provisions of the Act, but not for a violation of § 552a(e)(7). Under Cell Associates, Plaintiffs cannot obtain

94

FAZAGA V. WALLS

injunctive relief except for violations as to which such relief is specifically permitted.47

Plaintiffs’ complaint expressly provides that “[t]he FBI is sued for injunctive relief only.” Accordingly, because their sole requested remedy is unavailable, Plaintiffs fail to state a claim under the Privacy Act.

F. FTCA Claims

The FTCA constitutes a waiver of sovereign immunity “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). “State substantive law applies” in FTCA actions. Liebsack v. United States, 731 F.3d 850, 856 (9th Cir. 2013). If an individual federal employee is sued, the United States shall, given certain conditions are satisfied, “be substituted as the party defendant.” 28 U.S.C. § 2679(d)(1).

Plaintiffs allege that the United States is liable under the FTCA for invasion of privacy under California law, violation of the California constitutional right to privacy, violation of California Civil Code § 52.1, and intentional infliction of emotional distress. We first consider Defendants’ jurisdictional arguments, and then discuss their implications for the substantive FTCA claims.

47 Plaintiffs also argue that MacPherson v. IRS, 803 F.2d 479 (9th Cir. 1986) is “binding Ninth Circuit authority . . . [that] makes clear that courts have authority to order expungement of records maintained in violation of its [§ 552a(e)(7)] requirements.” But MacPherson does not state whether the plaintiff there sought injunctive relief and so is unclear on this point.

FAZAGA V. WALLS

95

1. FTCA Judgment Bar

The FTCA’s judgment bar provides that “[t]he judgment in an action under [the FTCA] shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim.” 28 U.S.C. § 2676. The judgment bar provision has no application here.

The judgment bar provision precludes claims against individual defendants in two circumstances: (1) where a plaintiff brings an FTCA claim against the government and non-FTCA claims against individual defendants in the same action and obtains a judgment against the government, see Kreines v. United States, 959 F.2d 834, 838 (9th Cir. 1992); and (2) where the plaintiff brings an FTCA claim against the government, judgment is entered in favor of either party, and the plaintiff then brings a subsequent non-FTCA action against individual defendants, see Gasho v. United States, 39 F.3d 1420, 1437–38 (9th Cir. 1994); Ting v. United States, 927 F.2d 1504, 1513 n.10 (9th Cir. 1991). The purposes of this judgment bar are “to prevent dual recoveries,” Kreines, 959 F.2d at 838, to “serve[] the interests of judicial economy,” and to “foster more efficient settlement of claims,” by “encourag[ing plaintiffs] to pursue their claims concurrently in the same action, instead of in separate actions,” Gasho, 39 F.3d at 1438.

Neither of those two circumstances, nor their attendant risks, is present here. Plaintiffs brought their FTCA claim, necessarily, against the United States, and their non-FTCA claims against the Agent Defendants, in the same action. They have not obtained a judgment against the government. Kreines held that “an FTCA judgment in favor of the

96

FAZAGA V. WALLS

government did not bar the Bivens claim [against individual employees] when the judgments are ‘contemporaneous’ and part of the same action.” Gasho, 39 F.3d at 1437 (quoting Kreines, 959 F.2d at 838). By “contemporaneous,” Kreines did not require that judgments on the FTCA and other claims be entered simultaneously, but rather that they result from the same action.

The FTCA’s judgment bar does not operate to preclude Plaintiffs’ claims against the Agent Defendants.

2. FTCA Discretionary Function Exception

The discretionary function exception provides that the FTCA shall not apply to “[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, . . . or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). “[T]he discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.” Berkovitz v. United States, 486 U.S. 531, 536 (1988). “[G]overnmental conduct cannot be discretionary if it violates a legal mandate.” Galvin v. Hay, 374 F.3d 739, 758 (9th Cir. 2004) (quoting Nurse v. United States, 226 F.3d 996, 1002 (9th Cir. 2000)). Moreover, “the Constitution can limit the discretion of federal officials such that the FTCA’s discretionary function exception will not apply.” Id. (quoting Nurse, 226 F.3d at 1002 n.2).

FAZAGA V. WALLS

97

We cannot determine the applicability of the discretionary function exception at this stage in the litigation. If, on remand, the district court determines that Defendants did not violate any federal constitutional or statutory directives, the discretionary function exception will bar Plaintiffs’ FTCA claims.48 But if the district court instead determines that Defendants did violate a nondiscretionary federal constitutional or statutory directive, the FTCA claims may be able to proceed to that degree.

Because applicability of the discretionary function will largely turn on the district court’s ultimate resolution of the merits of Plaintiffs’ various federal constitutional and statutory claims, discussing whether Plaintiffs substantively state claims as to the state laws underlying the FTCA claim would be premature. We therefore decline to do so at this juncture.

V. Procedures on Remand

On remand, the FISA and Fourth Amendment claims, to the extent we have held they are validly pleaded in the complaint and not subject to qualified immunity, should proceed as usual. See supra Part II.B. In light of our conclusion regarding the reach of FISA § 1806(f), the district court should, using § 1806(f)’s ex parte and in camera procedures, review any “materials relating to the surveillance as may be necessary,” 50 U.S.C. § 1806(f), including the evidence over which the Attorney General asserted the state secrets privilege, to determine whether the electronic

48 We note that the judgment bar, 28 U.S.C. § 2676, does not apply to FTCA claims dismissed under the discretionary function exception. See Simmons v. Himmelreich, 136 S. Ct. 1843, 1847–48 (2016).

98

FAZAGA V. WALLS

surveillance was lawfully authorized and conducted. That determination will include, to the extent we have concluded that the complaint states a claim regarding each such provision, whether Defendants violated any of the constitutional and statutory provisions asserted by Plaintiffs in their complaint. As permitted by Congress, “[i]n making this determination, the court may disclose to [plaintiffs], under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.” Id.49

The Government suggests that Plaintiffs’ religion claims cannot be resolved using the § 1806(f) procedures because, as the district court found, “the central subject matter [of the case] is Operation Flex, a group of counterterrorism investigations that extend well beyond the purview of electronic surveillance.” Although the larger factual context of the case involves more than electronic surveillance, a careful review of the “Claims for Relief” section of the complaint convinces us that all of Plaintiffs’ legal causes of action relate to electronic surveillance, at least for the most

49 Our circuit has not addressed the applicable standard for reviewing the district court’s decision not to disclose FISA materials. Other circuits, however, have adopted an abuse of discretion standard. See United States v. Ali, 799 F.3d 1008, 1022 (8th Cir. 2015); United States v. El-Mezain, 664 F.3d 467, 567 (5th Cir. 2011); United States v. Damrah, 412 F.3d 618, 624 (6th Cir. 2005); United States v. Badia, 827 F.2d 1458, 1464 (11th Cir. 1987); United States v. Belfield, 692 F.2d 141, 147 (D.C. Cir. 1982).

FAZAGA V. WALLS

99

part, and in nearly all instances entirely,50 and thus require a determination as to the lawfulness of the surveillance. Moreover, § 1806(f) provides that the district court may consider “other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted,” thereby providing for consideration of both parties’ factual submissions and legal contentions regarding the background of the surveillance. Id. (emphasis added).

As we concluded in Part I, supra, not all of the surveillance detailed in the complaint as the basis for Plaintiffs’ legal claims constitutes electronic surveillance as defined by FISA. See id. § 1801(k). Only the surveillance in the mosque prayer hall and of Fazaga’s office and AbdelRahim’s house fits within FISA’s definition. But once the district court uses § 1806(f)’s procedures to review the state secrets evidence in camera and ex parte to determine the lawfulness of that surveillance, we see no reason why the district court could not then rely on its assessment of the evidence—taking care to avoid its public disclosure—to determine the lawfulness of the surveillance falling outside FISA’s purview, should Plaintiffs wish to proceed with their claims as applied to that set of activity.

50 Two of Plaintiffs’ causes of action can be read to encompass more conduct than just electronic surveillance. Plaintiffs’ RFRA claim, their Fifth Cause of Action, is not limited to surveillance. Plaintiffs broadly allege that “[t]he actions of Defendants substantially burdened [their] exercise of religion.” The FTCA claim for intentional infliction of emotional distress, the Eleventh Cause of Action, is also more broadly pleaded. It is far from clear, however, that as actually litigated, either claim will involve more than the electronic surveillance that is otherwise the focus of the lawsuit.

100

FAZAGA V. WALLS

The same categories of evidence will be required to defend against Plaintiffs’ surviving claims no matter the particular surveillance at issue. That is, whether the officialcapacity defendants targeted Plaintiffs for surveillance in violation of the First Amendment, for example, will in all likelihood be proven or defended against using the same set of evidence regardless of whether the court considers the claim in terms of surveillance in the mosque prayer hall or conversations to which Monteilh was a party. It would be an exercise in empty formalism to require the district court to consider the state secrets evidence in camera and ex parte to determine the lawfulness of the FISA surveillance, but then ignore that same evidence and so dismiss Plaintiffs’ surviving claims as to the non-FISA surveillance. As we explained in our discussion of why FISA’s § 1806(f) procedures may be used both for claims arising under § 1810 and under other constitutional and statutory provisions, see supra Part II.D, once the sensitive information has been considered in camera and ex parte, the small risk of disclosure—a risk Congress thought too small to preclude careful ex parte, in camera consideration by a federal judge—has already been incurred. The scope of the state secrets privilege “is limited by its underlying purpose.” Halpern v. United States, 258 F.2d 36, 44 (2d Cir. 1958) (quoting Roviaro v. United States, 353 U.S. 53, 60 (1957)). It would stretch the privilege well beyond its purpose to require the district court to consider the state secrets evidence in camera and ex parte for one purpose, but then ignore it and dismiss closely related claims involving the exact same set of parties, facts, and alleged legal violations.51

51 None of Plaintiffs’ legal claims is pleaded to apply only to a particular subset of surveillance activity.

FAZAGA V. WALLS

101

Should our prediction of the close overlap between the information to be reviewed under the FISA procedures to determine the validity of FISA-covered electronic surveillance and the information pertinent to other aspects of the religion claims prove inaccurate, or should the FISAcovered electronic surveillance drop out of consideration,52 the Government is free to interpose a specifically tailored, properly raised state secrets privilege defense. Should the Government do so, at that point, the district court should consider anew whether “simply excluding or otherwise walling off the privileged information may suffice to protect the state secrets,” Jeppesen, 614 F.3d at 1082, or whether dismissal is required because “the privilege deprives the defendant[s] of information that would otherwise give the defendant[s] a valid defense to the claim[s],” id. at 1083 (quoting Kasza, 133 F.3d at 1166), or because the privileged and nonprivileged evidence are “inseparable” such that “litigating the case to a judgment on the merits would present an unacceptable risk of disclosing state secrets,” id. Because Jeppesen did not define “valid defense,” we briefly address its meaning, so as to provide guidance to the district court on remand and to future courts in our circuit addressing the implications of the Government’s invocation of the state secrets privilege.

The most useful discussion of the meaning of “valid defense” in the state secrets context is in the D.C. Circuit’s decision in In re Sealed Case, 494 F.3d 139, cited by Jeppensen, 614 F.3d at 1083. We find the D.C. Circuit’s definition and reasoning persuasive, and so adopt it. Critically, In re Sealed Case explained that “[a] ‘valid

52 As could happen if, for instance, Plaintiffs are unable to substantiate their factual allegations as to the occurrence of the surveillance.

102

FAZAGA V. WALLS

defense’ . . . is meritorious and not merely plausible and would require judgment for the defendant.” 494 F.3d at 149. The state secrets privilege does not require “dismissal of a complaint for any plausible or colorable defense.” Id. at 150. Otherwise, “virtually every case in which the United States successfully invokes the state secrets privilege would need to be dismissed.” Id. Such an approach would constitute judicial abdication from the responsibility to decide cases on the basis of evidence “in favor of a system of conjecture.” Id. And the Supreme Court has cautioned against “precluding review of constitutional claims” and “broadly interpreting evidentiary privileges.” Id. at 151 (first citing Webster v. Doe, 486 U.S. 592, 603–04 (1988), and then citing United States v. Nixon, 418 U.S. 683, 710 (1974)). “[A]llowing the mere prospect of a privilege defense,” without more, “to thwart a citizen’s efforts to vindicate his or her constitutional rights would run afoul” of those cautions. Id. Thus, where the government contends that dismissal is required because the state secrets privilege inhibits it from presenting a valid defense, the district court may properly dismiss the complaint only if it conducts an “appropriately tailored in camera review of the privileged record,” id., and determines that defendants have a legally meritorious defense that prevents recovery by the plaintiffs, id. at 149 & n.4.

CONCLUSION

The legal questions presented in this case have been many and difficult. We answer them on purely legal grounds, but of course realize that those legal answers will reverberate in the context of the larger ongoing national conversation about how reasonably to understand and respond to the threats posed by terrorism without fueling a climate of fear rooted in stereotypes and discrimination. In a previous case, we

FAZAGA V. WALLS

103

observed that the state secrets doctrine strikes a “difficult balance . . . between fundamental principles of our liberty, including justice, transparency, accountability and national security,” and sometimes requires us to confront “an irreconcilable conflict” between those principles. Jeppesen, 614 F.3d at 1073. In holding, for the reasons stated, that the Government’s assertion of the state secrets privilege does not warrant dismissal of this litigation in its entirety, we, too, have recognized the need for balance, but also have heeded the conclusion at the heart of Congress’s enactment of FISA: the fundamental principles of liberty include devising means of forwarding accountability while assuring national security.

Having carefully considered the Defendants’ various arguments for dismissal other than the state secrets privilege, we conclude that some of Plaintiffs’ search and religion allegations state a claim, while others do not. We therefore affirm in part and reverse in part the district court’s orders, and remand for further proceedings in accordance with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.

 
 Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 1 of 38

CONSOLIDATED CASE NOS. 13-55017, 12-56867 & 12-56874 ___________________________________________________
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
___________________________________________________
YASSIR FAZAGA, ALI UDDIN MALIK, YASSER ABDELRAHIM, PLAINTIFFS AND APPELLANTS,

vs.

FEDERAL BUREAU OF INVESTIGATION; UNITED STATES OF AMERICA; ROBERT MUELLER, DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION, IN HIS OFFICIAL CAPACITY; STEVEN M. MARTINEZ, ASSISTANT DIRECTOR IN CHARGE, FEDERAL BUREAU OF INVESTIGATION’S LOS ANGELES DIVISION, IN HIS OFFICIAL CAPACITY; J. STEPHEN
TIDWELL; BARBARA WALLS; PAT ROSE; KEVIN ARMSTRONG; PAUL ALLEN; DOES 1-20; DEFENDANTS AND APPELLEES.
___________________________________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA NO. CV 11-301-CJC (VBK)
___________________________________________________

BRIEF AMICUS CURIAE OF THE ELECTRONIC FRONTIER FOUNDATION
IN SUPPORT OF PLAINTIFF-APPELLANTS __________________________________________________________________________

CINDY COHN LEE TIEN KURT OPSAHL JAMES S. TYRE MARK RUMOLD ANDREW CROCKER DAVID GREENE ELECTRONIC FRONTIER
FOUNDATION 815 Eddy Street San Francisco, CA 94109 Telephone: (415) 436-9333 Fax: (415) 436-9993

RICHARD R. WIEBE LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Telephone: (415) 433-3200 Fax: (415) 433-6382
THOMAS E. MOORE III ROYSE LAW FIRM, PC 1717 Embarcadero Road Palo Alto, CA 94303 Telephone: (650) 813-9700 Fax: (650) 813-9777

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 2 of 38

CORPORATE DISCLOSURE STATEMENT

Pursuant to FRAP 26.1, amicus Electronic Frontier Foundation (“EFF”)

reports that it is a 501(c)(3) non-profit corporation incorporated in the

Commonwealth of Massachusetts and makes the following disclosure:

EFF is not a publicly held corporation or other publicly held entity.

EFF has no parent corporations.

No publicly held corporation or other publicly held entity owns 10% or more

of EFF. Dated: November 24, 2014

s/ Richard R. Wiebe

Counsel for Amicus

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 3 of 38
TABLE OF CONTENTS
INTEREST OF AMICUS ............................................................................... 1
INTRODUCTION .......................................................................................... 2
ARGUMENT .................................................................................................. 3
I. Section 1806(f) Displaces The State Secrets Privilege.............. 3
A. Congress Has Displaced The State Secrets Privilege In Cases Involving Electronic Surveillance ......................... 3
B. FISA’s Statutory Purpose And Legislative History Confirm That Section 1806(f) Displaces The State Secrets Privilege .............................................................. 5
1. Congress Enacted FISA To Establish Comprehensive Control Over National Security Electronic Surveillance.......................................... 5
2. Section 1806(f) Is An Essential Element Of Congress’ Comprehensive Scheme For Judicially Enforcing The Limitations It Has Imposed On Electronic Surveillance.......................................... 8
C. Section 1806(f) Encompasses Civil Cases Arising Out Of Electronic Surveillance............................................... 9
D. Section 1806(f) Applies To All Civil Claims Arising Out Of Electronic Surveillance, Not Just Claims Under FISA’s Civil Cause of Action........................................ 11
E. The Government’s Argument Below That Congress Did Not Intend For Section 1806(f) To Displace The State Secrets Privilege Misunderstands The Power Of Congress To Displace Common-Law Evidentiary Rules .............................................................................. 14
i

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 4 of 38
II. Even If Congress Had Not Displaced The State Secrets Privilege In Section 1806(f), The Privilege Would Not Provide A Ground For Threshold Dismissal Here................... 17 A. The General Rule Is That The Privileged Evidence Is Excluded And The Lawsuit Goes Forward Without It.. 17 B. The Valid-Defense Exception Is Limited To Government Contract Claims And Does Not Apply Here................................................................................ 19 C. Even If The Valid-Defense Exception Extended To Claims Not Arising Out Of Government Contracts, The District Court Misapplied It Here........................... 21 D. Threshold Dismissal Is Premature ................................. 24
CONCLUSION............................................................................................. 28 STATUTORY APPENDIX .......................................................................... 29
ii

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 5 of 38
TABLE OF AUTHORITIES
Cases ACLU v. Barr,
952 F.2d 457 (1991) .................................................................................. 12
Al-Haramain Islamic Foundation, Inc. v. Bush, 507 F.3d 1190 (9th Cir. 2007)............................................................... 5, 18
American Electric Power Co. v. Connecticut, __ U.S. __, 131 S.Ct. 2527 (2011) ............................................................ 16
Astoria Federal Savings & Loan Ass’n v. Solimino, 501 U.S. 104 (1991) .................................................................................. 17
Clift v. U.S., 597 F.2d 826 (2d Cir. 1979) ...................................................................... 27
Crater Corp. v. Lucent Technologies, 423 F.3d 1260 (Fed. Cir. 2005)................................................................. 26
DTM Research v. AT&T, 245 F.3d 327 (4th Cir. 2001)..................................................................... 26
Ellsberg v. Mitchell, 709 F.2d 51 (D.C. Cir. 1983) .................................................................... 27
General Dynamics Corp. v. U.S., ___ U.S. ___, 131 S.Ct. 1900 (2011) ................................................. passim
Halkin v. Helms, 598 F.2d 1 (D.C. Cir. 1978) ...................................................................... 27
Ibrahim v. Department of Homeland Security, N.D. Cal. No. 06-cv-545-WHA, ECF No. 682 (Jan. 14, 2014)................ 25
In re National Security Agency Telecommunications Records Litigation (Hepting), 671 F.3d 881 (9th Cir. 2011)..................................................................... 13
iii

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 6 of 38
In re Sealed Case, 494 F.3d 139 (D.C. Cir. 2007) ................................................ 18, 22, 23, 26
In re U.S., 872 F.2d 472 (D.C. Cir. 1989) .................................................................. 27
Jewel v. National Security Agency, 673 F.3d 902 (9th Cir. 2012)....................................................................... 1
Jewel v. National Security Agency, 965 F.Supp.2d 1090 (N.D. Cal. 2013) .................................................... 1, 4
Kasza v. Browner, 133 F.3d 1159 (9th Cir. 1998)................................................................... 18
Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc)..................................................... 20
Milwaukee v. Illinois, 451 U.S. 304 (1981) .................................................................................. 16
Mohamed v. Holder, E.D. Va. No. 11-cv-050-AJT, ECF No. 144 (Oct. 30, 2014) ................... 24
Mohamed v. Jeppesen, 614 F.3d 1070 (9th Cir. 2010) (en banc)............................................ passim
Monarch Assurance P.L.C. v. U.S., 244 F.3d 1356 (Fed. Cir. 2001)................................................................. 27
Tenet v. Doe, 544 U.S. 1 (2005) ................................................................................ 20, 25
Totten v. U.S., 92 U.S. 105 (1876) .............................................................................. 20, 25
U S. v. Johnson, 952 F.2d 565 (1st Cir. 1991) ..................................................................... 12
U.S. v. Reynolds, 345 U.S. 1 (1953) .......................................................................... 20, 25, 26
iv

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 7 of 38
U.S. v. Texas, 507 U.S. 529 (1993) .................................................................................. 16
Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976) ...................................................................................... 14
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) .................................................................................... 6
Statutes 18 U.S.C. § 2511(2)(f) .................................................................................... 8 50 U.S.C. § 1801(f)....................................................................................... 14 50 U.S.C. § 1806(f)................................................................................ passim 50 U.S.C. § 1809(a)(1).................................................................................. 14 50 U.S.C. § 1810............................................................................... 11, 13, 14 50 U.S.C. § 1812............................................................................................. 8 Pub. L. No. 93-595, § 1, 88 Stat. 1933 (1975) ............................................. 15 Rules Fed. R. Evid. 501 .......................................................................................... 15 Fed. R. Evid. 501 advisory committee’s 2011 note...................................... 15 Legislative Materials H.R. Conf. Rep. No. 95-1720 (1978),
reprinted in 1978 U.S.C.C.A.N. 4048....................................................... 10 H.R. Rep. No. 93-650 (1973),
reprinted in 1974 U.S.C.C.A.N. 7075....................................................... 15 H.R. Rep. No. 95-1283(I) (1978) ........................................................... 10, 14 S. Rep. No. 93-1277 (1974),
reprinted in 1974 U.S.C.C.A.N. 7047....................................................... 15
v

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 8 of 38
S. Rep. No. 94-1035 (1976) ............................................................................ 8 S. Rep. No. 95-604(I) (1978),
reprinted in 1978 U.S.C.C.A.N. 3904................................................. 7, 8, 9 S. Rep. No. 95-701 (1978),
reprinted in 1978 U.S.C.C.A.N. 3973................................................. 12, 17 S. Select Comm. to Study Governmental Operations with Respect to
Intelligence Activities, S. Rep. No. 94-755, BOOK II: INTELLIGENCE ACTIVITIES AND THE RIGHTS OF AMERICANS (1976) ............................... 6, 7
vi

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 9 of 38
INTEREST OF AMICUS The Electronic Frontier Foundation is a non-profit, member-supported organization working to protect civil liberties and preserve privacy rights in the digital world. Founded in 1990, EFF is based in San Francisco, California. EFF has over 24,000 dues-paying members and maintains one of the most-linked-to websites in the world. EFF serves as counsel in a lawsuit currently pending before the Northern District of California arising out of the warrantless domestic dragnet surveillance conducted by the National Security Agency. Jewel v. NSA (N.D. Cal. No. 08-cv-0473-JSW); see Jewel v. National Security Agency, 673 F.3d 902 (9th Cir. 2012); Jewel v. National Security Agency, 965 F.Supp.2d 1090 (N.D. Cal. 2013). In that case, as in this one, the Executive has claimed that the state secrets privilege requires the Judiciary to refrain from adjudicating the lawfulness of the Executive’s actions and has contended that section 1806(f) of title 50 U.S.C. does not displace the state secrets privilege in electronic surveillance cases. Counsel for the plaintiff-appellants and counsel for the defendantappellees have consented to the filing of this brief.1
1 No party or party’s counsel authored this brief or contributed money to fund the preparation or submission of this brief. No person other than amicus, its members, and its counsel contributed money to fund the preparation or submission of this brief.
1

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 10 of 38
INTRODUCTION Plaintiffs’ allegations of unlawful domestic surveillance of numerous American citizens and lawful residents whom the government had no reason to suspect of wrongdoing are gravely troubling. Even more troubling is the Executive’s attempt to circumvent the procedures Congress has put in place to permit the secure use of national security evidence in electronic surveillance cases like this one. Adopting the Executive’s position would abdicate the Judiciary’s Article III responsibility to adjudicate the constitutional and statutory limits on executive authority. The tool the Executive attempts to use here to bar the Judiciary from its duty of reviewing allegations of executive overreach is the state secrets privilege. But Congress has already spoken and has displaced the state secrets privilege in lawsuits presenting claims arising out of unlawful electronic surveillance. Congress has provided the alternative procedural mechanism of section 1806(f) of title 50 U.S.C. (“section 1806(f)” or “§ 1806(f)”). Section 1806(f) protects national security evidence while permitting an adjudication on the merits. Because Congress has already balanced the need for security against the need for judicial review when it enacted section 1806(f), the Executive’s attempt to escape that statute’s procedures intrudes not only on the proper role of the Judiciary but on Congress’ powers as well. And even if the government defendants were correct that section 1806(f) does not displace the state secrets privilege, the state secrets
2

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 11 of 38
privilege would still not permit dismissal of this lawsuit, both because the “valid-defense” exception upon which the government defendants rely is limited to claims arising out of government contracts and because they have not presented any evidence that they possess a valid defense that the privilege prevents them from asserting.
If the Executive succeeds in expanding the state secrets privilege, it is not just plaintiffs, but all of us, who will suffer. Our constitutional system of government depends upon the availability of the courts to rein in the Executive when it acts lawlessly. Future lawless conduct will be deterred only if courts can fulfill their constitutional function of adjudicating the lawfulness of past conduct.
ARGUMENT I. Section 1806(f) Displaces The State Secrets Privilege
A. Congress Has Displaced The State Secrets Privilege In Cases Involving Electronic Surveillance
Congress recognized that in civil actions challenging unlawful electronic surveillance, the evidence may include sensitive national security information that should not be publicly disclosed. In section 1806(f), Congress established a procedure enabling those actions to go forward to a decision on the merits while protecting the secrecy of the information on which the decision is based. Rather than excluding national security evidence, as would occur under the state secrets privilege, Congress instead displaced the state secrets privilege and directed courts to use all of the
3

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 12 of 38
relevant national security evidence, reviewed in camera and ex parte where necessary, as the basis for deciding the legality of the surveillance. Jewel v. National Security Agency, 965 F.Supp.2d 1090, 1103-04 (N.D. Cal. 2013).
Congress’ purpose in enacting section 1806(f) is exactly what the statute states: to provide a method for the district court “to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted” in those instances where the government tells the court that “disclosure or an adversary hearing would harm the national security of the United States.” § 1806(f). The district court is to make its merits determination by “review[ing] in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary,” rather than excluding such evidence as would occur if the state secrets privilege were applied to it.2 Id.
The overlap between section 1806(f) and the state secrets privilege is self-evident. The state secrets privilege is a common-law doctrine that addresses “exceptional circumstances [in which] courts must act in the interest of the country’s national security to prevent disclosure of state secrets.” Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1077 (9th Cir. 2010) (en banc). The subject matter of section 1806(f) is the same: circumstances in which “disclosure [of evidence] or an adversary hearing would harm the national security of the United States.” § 1806(f).
2 The full text of section 1806(f) is set forth in the statutory appendix hereto.
4

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 13 of 38
In cases involving electronic surveillance, section 1806(f) displaces and supersedes the common-law state secrets privilege. Congress expressly provided that section 1806(f) applies “notwithstanding any other law,” thus confirming its intent to displace the state secrets privilege in cases challenging the lawfulness of electronic surveillance. § 1806(f). Congress required the courts to decide the merits of the lawfulness of the surveillance using national security evidence, in camera and ex parte, rather than applying the state secrets privilege to exclude that evidence. As this Court has already found, “[t]he statute, unlike the common law state secrets privilege, provides a detailed regime to determine whether surveillance ‘was lawfully authorized and conducted.’ ” Al-Haramain Islamic Foundation v. Bush, 507 F.3d 1190, 1205 (2007).
Section 1806(f) leaves no room for the state secrets privilege to operate. In cases to which section 1806(f) applies, it and the state secrets privilege are mutually exclusive. Applying the state secrets privilege in such a case would mean nullifying section 1806(f), contrary to Congress’ intent.
B. FISA’s Statutory Purpose And Legislative History Confirm That Section 1806(f) Displaces The State Secrets Privilege 1. Congress Enacted FISA To Establish Comprehensive Control Over National Security Electronic Surveillance
FISA’s statutory purpose and legislative history further confirm section 1806(f)’s displacement of the state secrets privilege. FISA was enacted in 1978 in the wake of a Senate investigation (known as the “Church
5

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 14 of 38
Committee” after its chairman, Senator Frank Church) revealing that for many decades the Executive, without any warrants or other lawful authority, had been conducting massive, secret dragnet surveillance invading the privacy and violating the constitutional rights of thousands of ordinary Americans. S. Select Comm. to Study Governmental Operations with Respect to Intelligence Activities, S. Rep. No. 94-755, BOOK II: INTELLIGENCE ACTIVITIES AND THE RIGHTS OF AMERICANS (“BOOK II”) (1976).3 Many of these unlawful surveillance activities were strikingly similar to those alleged by plaintiffs here.
The Church Committee concluded the government’s mass surveillance violated the Fourth Amendment, stating that the “massive record of intelligence abuses over the years” had “undermined the constitutional rights of citizens . . . primarily because checks and balances designed by the framers of the Constitution to assure accountability have not been applied.” BOOK II at 139, 290, 289. The Committee urged “fundamental reform,” recommending legislation to “make clear to the Executive branch that [Congress] will not condone, and does not accept, any theory of inherent or implied authority to violate the Constitution, the proposed new charters, or any other statutes.” Id. at 289, 297. Citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), it noted that “there would be no such authority after Congress has . . . covered the field
3 Available at http://www.intelligence.senate.gov/pdfs94th/94755_II.pdf.
6

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 15 of 38
by enactment of a comprehensive legislative charter” that would “provide the exclusive legal authority for domestic security activities.” BOOK II at 297 & n.10.
The Committee recommended the creation of civil remedies for unlawful surveillance. The purpose of these remedies would be both to “afford effective redress to people who are injured by improper federal intelligence activity” and “to deter improper intelligence activity.” BOOK II at 336.
The Committee also anticipated section 1806(f)’s displacement of the state secrets privilege to permit civil claims of unlawful surveillance to be litigated, stating that “courts will be able to fashion discovery procedures, including inspections of materials in chambers, and to issue orders as the interests of justice require, to allow plaintiffs with substantial claims to uncover enough factual material to argue their case, while protecting the secrecy of governmental information in which there is a legitimate security interest.” BOOK II at 337.
FISA was Congress’ response to the Church Committee’s revelations and recommendations: “This legislation is in large measure a response to the revelations that warrantless electronic surveillance in the name of national security has been seriously abused.” S. Rep. No. 95-604(I) at 7 (1978), reprinted in 1978 U.S.C.C.A.N. 3904, 3908. FISA implemented the Church Committee’s recommendations by imposing strict limits on the Executive’s power to conduct electronic surveillance. E.g., S. Rep.
7

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 16 of 38
No. 95-604(I) at 8, 1978 U.S.C.C.A.N. at 3910 (FISA “curb[s] the practice by which the Executive Branch may conduct warrantless electronic surveillance on its own unilateral determination that national security justifies it”); S. Rep. No. 94-1035 at 11 (1976) (“the past record establishes clearly that the executive branch cannot be the sole or final arbiter of when such proper circumstances exist”), 20 (“executive self-restraint, in the area of national security electronic surveillance, is neither feasible nor wise”). By providing “effective, reasonable safeguards to ensure accountability and prevent improper surveillance” by the Executive, FISA restored the “balance between protection of national security and protection of personal liberties.” S. Rep. No. 95-604(I) at 7, 1978 U.S.C.C.A.N. at 3908.
2. Section 1806(f) Is An Essential Element Of Congress’ Comprehensive Scheme For Judicially Enforcing The Limitations It Has Imposed On Electronic Surveillance
To ensure that the Executive could not evade the limits Congress imposed on electronic surveillance, Congress expressly provided in FISA that FISA and the domestic law enforcement electronic surveillance provisions of chapter 119 (the Wiretap Act), chapter 121 (the Stored Communications Act) and chapter 206 (the pen register statute) of title 18 are the exclusive means by which the Executive may conduct electronic surveillance within the United States. Pub. L. No. 95-511; 92 Stat. 1783, 1797; codified at 18 U.S.C. § 2511(2)(f); accord 50 U.S.C. § 1812.
8

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 17 of 38
Given the history of past executive abuses, Congress knew that its mandate of statutory exclusivity would become a reality only if it also created mechanisms for judicial enforcement of the comprehensive procedural and substantive limitations on electronic surveillance set out in FISA, the Wiretap Act, and the Stored Communications Act. To make judicial enforcement possible, Congress created section 1806(f)’s requirement that courts use national security evidence to determine the legality of surveillance, instead of excluding that evidence under the state secrets privilege. Section 1806(f) provides the practical means by which the substantive limitations on surveillance can be litigated without endangering national security.
C. Section 1806(f) Encompasses Civil Cases Arising Out Of Electronic Surveillance
Section 1806(f)’s application to civil cases, as its plain language commands, is a necessary part of the statutory scheme. Without section 1806(f), the civil enforcement mechanism that Congress created to ensure FISA’s exclusivity would be toothless. By asserting the state secrets privilege to block judicial review of the lawfulness of its activities, the Executive could free itself from the restraints of FISA and once again “conduct warrantless electronic surveillance on its own unilateral determination that national security justifies it.” S. Rep. No. 95-604(I) at 8, 1978 U.S.C.C.A.N. at 3910.
9

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 18 of 38
FISA’s legislative history confirms that section 1806(f) applies to civil cases. The Senate and the House of Representatives proposed different versions of the provision that became section 1806(f). H.R. Conf. Rep. No. 95-1720 at 31-32 (1978), reprinted in 1978 U.S.C.C.A.N. 4048, 4060-61 (“FISA Conf. Rep.”). The House bill had two separate procedures for determining the legality of electronic surveillance, one for criminal cases and one for civil cases; the Senate bill had a single procedure for both criminal and civil cases. Id.
In the end, Congress adopted a modified version of the Senate procedure, deeming a single procedure sufficient both for criminal cases in which a defendant is seeking to suppress surveillance evidence and for civil cases in which a plaintiff is seeking a determination of the legality of electronic surveillance in order to vindicate constitutional and statutory rights:
The conferees [of the joint House and Senate Committee of Conference] agree that an in camera and ex parte proceeding is appropriate for determining the lawfulness of electronic surveillance in both criminal and civil cases. FISA Conf. Rep. at 32, 1978 U.S.C.C.A.N. at 4061 (emphasis added); see also H.R. Rep. No. 95-1283(I) at 93 (1978) (“A decision of illegality [of government surveillance] may not always arise in the context of suppression; rather it may, for example, arise incident to a discovery motion in a civil trial.”).
10

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 19 of 38
D. Section 1806(f) Applies To All Civil Claims Arising Out Of Electronic Surveillance, Not Just Claims Under FISA’s Civil Cause of Action
Section 1806(f) by its terms applies to all civil claims arising out of electronic surveillance, whether brought under section 1810 of FISA or some other source of law (e.g., the Constitution, the Wiretap Act).
The plain language of section 1806(f) makes no distinction between constitutional and statutory violations or among different categories of statutory violations: it requires the district court to determine “whether the surveillance . . . was lawfully authorized and conducted”—i.e., “the legality of the surveillance.” § 1806(f). Unconstitutional surveillance is just as illegal as is surveillance in violation of a statute. If it had intended to limit section 1806(f) to only a determination of statutory lawfulness, or to only a determination of lawfulness under one or several specific statutes, Congress could have easily done so, e.g., by limiting a court’s power to determining only “the legality of the surveillance under FISA, the Wiretap Act, or the Stored Communications Act.” Manifestly, Congress did not. Moreover, in the 36 years since section 1806(f)’s enactment in 1978 no member of Congress has ever proposed any legislation to narrow or limit the scope of section 1806(f), even though there have been numerous other amendments to FISA.
As the D.C. Circuit has held, section 1806(f) does not artificially limit the legal standard by which the lawfulness of the surveillance is judged only to the substantive limitations established by FISA. Instead, “[w]hen a
11

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 20 of 38
district court conducts a § 1806(f) review, its task is not simply to decide whether the surveillance complied with FISA. Section 1806(f) requires the court to decide whether the surveillance was ‘lawfully authorized and conducted.’ ” ACLU v. Barr, 952 F.2d 457, 465 & n.7 (1991). In particular, review extends to constitutional claims like plaintiffs’ Fourth Amendment claim here. Id. at 465 (“The Constitution is law.”); accord U.S. v. Johnson, 952 F.2d 565, 571-72 & n.4 (1st Cir. 1991) (using section 1806(f) to review constitutional challenges to surveillance).
The legislative history confirms section 1806(f)’s broad scope. Not just section 1806(f) but the entire statutory framework of FISA was erected by Congress to safeguard constitutional rights. FISA “reconcile[s] national intelligence and counterintelligence needs with constitutional principles in a way that is consistent with both national security and individual rights.” S. Rep. No. 95-701 at 16 (1978), reprinted in 1978 U.S.C.C.A.N. 3973, 3985.
Congress specifically intended that section 1806(f) apply to constitutional claims, noting that the district court would “determine whether the surveillance was authorized and conducted in a manner which did not violate any constitutional or statutory right.” S. Rep. No. 95-701 at 63, 1978 U.S.C.C.A.N. at 4032; accord, S. Rep. No. 95-604(I) at 57, 1978 U.S.C.C.A.N. at 3959. Congress’ decision to include constitutional claims in section 1806(f) accords with “[t]he judiciary’s essential role in protecting constitutional rights” and the fundamental jurisprudential principle that
12

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 21 of 38
constitutional claims deserve a meaningful judicial forum. In re National Security Agency Telecommunications Records Litigation (Hepting), 671 F.3d 881, 899 & n.3 (9th Cir. 2011). “The federal courts remain a forum to consider the constitutionality of the wiretapping scheme and other claims, including claims for injunctive relief.” Id.
Thus, there is no doubt that Congress intended section 1806(f) to apply to constitutional claims just as it applies to statutory claims. Nor is there any coherent reason why constitutional rights would be subject to a lesser standard of protection than statutory rights. If anything, constitutional rights are superior to and more jealously guarded than statutory rights.
Finally, once national security evidence comes in pursuant to section 1806(f), it is in the case for all purposes and all claims. There is no coherent reason of logic or policy why Congress would direct the district court to use national security evidence to decide some of a plaintiff’s claims but to abstain from using the same evidence to decide plaintiffs’ other claims. A contrary rule requiring the district court when it turns to plaintiffs’ constitutional claims to put out of mind the evidence it has just used to decide their statutory claims would be absurd.
Thus, the district court’s refusal to apply section 1806(f), instead of the state secrets privilege, to all of plaintiffs’ claims was error. The district court held that section 1806(f) did not apply to “non-FISA claims,” by which it apparently meant claims other than the civil cause of action created by 50 U.S.C. § 1810. ER 47. That was wrong, as the foregoing authority
13

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 22 of 38
demonstrates. Moreover, the district court thought that section 1810 claims were limited to those involving “ ‘foreign intelligence surveillance.’ ” ER 47. That additional holding was also mistaken, because FISA’s broad definition of “electronic surveillance” is not limited to electronic surveillance conducted for foreign intelligence purposes and because section 1810 makes actionable all electronic surveillance that is not authorized by either FISA or the Wiretap Act or the Stored Communications Act. 50 U.S.C. §§ 1801(f); 1809(a)(1); 1810. Thus, unlawful surveillance may simultaneously violate section 1810, the Wiretap Act, and the Constitution, as Congress recognized. H.R. Rep. No. 95-1283(I) at 97 (noting that unlawful surveillance could violate both FISA and the Wiretap Act).
E. The Government’s Argument Below That Congress Did Not Intend For Section 1806(f) To Displace The State Secrets Privilege Misunderstands The Power Of Congress To Displace Common-Law Evidentiary Rules
The government’s argument below that Congress did not intend for section 1806(f) to displace the state secrets privilege lacks merit.
There is no doubt that Congress has the power to displace the state secrets privilege: “Congress, of course, has plenary authority over the promulgation of evidentiary rules for the federal courts.” Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 31 (1976).
Congress has also set the standard by which the question of displacement should be judged. The state secrets privilege is one of the common-law privileges of the “government” Congress statutorily
14

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 23 of 38
incorporated into Federal Rule of Evidence 501. See H.R. Rep. No. 93-650 (1973), reprinted in 1974 U.S.C.C.A.N. 7075, 7082 (explaining that Rule 501 encompasses the “secrets of state” privilege); S. Rep. No. 93-1277 (1974), reprinted in 1974 U.S.C.C.A.N. 7047, 7058 (same).
Congress itself drafted Rule 501 and provided that “the privilege of . . . [the] government . . . shall be governed by the principles of the common law” “[e]xcept as otherwise . . . provided by Act of Congress.” Pub. L. No. 93-595, § 1, 88 Stat. 1933 (1975), codified as Fed. R. Evid. 501. In December 2011, Rule 501 was reworded, and now states that “[t]he common law . . . governs a claim of privilege unless any of the following provides otherwise: . . . a federal statute.” Fed. R. Evid. 501. These changes are “stylistic only.” Fed. R. Evid. 501 advisory committee’s 2011 note.
Section 1806(f) meets Rule 501’s test; it is a statute that “provides otherwise” for the admission, under special protective procedures, of evidence that the state secrets privilege would exclude. Section 1806(f) thereby displaces the common-law state secrets privilege that would otherwise apply under Rule 501.
The government argued below (ECF No. 69 at 16) that section 1806(f) does not “speak directly” to the state secrets privilege and therefore does not displace it. Even assuming arguendo that the “speaks directly” test and not the “otherwise provides” standard of Rule 501 governs, it is satisfied here. Section 1806(f) speaks directly to the state secrets privilege because it directly addresses the admission of national security evidence that the state
15

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 24 of 38
secrets privilege would otherwise exclude. See American Electric Power Co. v. Connecticut, __ U.S. __, 131 S.Ct. 2527, 2537 (2011) (test for whether Congress displaced common law “is simply whether the statute speaks directly to the question at issue” (internal quotation marks and brackets omitted)). Importantly, “Congress need not ‘affirmatively proscribe’ the common-law doctrine at issue.” U.S. v. Texas, 507 U.S. 529, 534 (1993); accord Milwaukee v. Illinois, 451 U.S. 304, 315 (1981) (test is “not whether Congress had affirmatively proscribed the use of federal common law” (emphasis added)); American Electric Power, 131 S.Ct. at 2537 (“Legislative displacement of federal common law does not require the same sort of evidence of a clear and manifest congressional purpose demanded for preemption of state law.” (internal quotation marks and brackets omitted)).
Congress expressly provided that section 1806(f) applies “notwithstanding any other law”—as clear a statement as possible of its intent to displace the “other law” of the state secrets privilege in cases challenging the lawfulness of electronic surveillance. The manifest incompatibility of section 1806(f) and the state secrets privilege, together with section 1806(f)’s command that courts “shall” decide the merits of cases challenging electronic surveillance by using national security evidence relating to the surveillance, are also clear expressions of Congress’ intent to displace the state secrets privilege. Further expressing its intent, Congress explained that the alternative to using the procedures of section 1806(f) is
16

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 25 of 38
not exclusion of the evidence, as would occur under the state secrets privilege, but “mandatory disclosure.” S. Rep. No. 95-701 at 63, 1978 U.S.C.C.A.N. at 4032.
Moreover, where federal common-law adjudicatory principles like the state secrets privilege are at issue, all that is required is that “ ‘a statutory purpose to the contrary is evident.’ ” Astoria Federal Savings & Loan Ass’n v. Solimino, 501 U.S. 104, 108 (1991) (“[T]he courts may take it as given that Congress has legislated with an expectation that the [common-law] principle will apply except ‘when a statutory purpose to the contrary is evident.’ [¶] This interpretative presumption is not, however, one that entails a requirement of clear statement, to the effect that Congress must state precisely any intention to overcome the presumption’s application to a given statutory scheme.” (citation omitted)). Section 1806(f)’s statutory purpose of using national security evidence to decide the merits is plainly contrary to the state secrets privilege’s purpose of excluding national security evidence. II. Even If Congress Had Not Displaced The State Secrets Privilege
In Section 1806(f), The Privilege Would Not Provide A Ground For Threshold Dismissal Here A. The General Rule Is That The Privileged Evidence Is
Excluded And The Lawsuit Goes Forward Without It The state secrets privilege would not be a ground for threshold dismissal here even if Congress had not displaced it in section 1806(f). As this Court has held, “[t]he effect of the government’s successful invocation of privilege ‘is simply that the evidence is unavailable, as though a witness
17

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 26 of 38
had died, and the case will proceed accordingly, with no consequences save those resulting from the loss of evidence.’ ” Al-Haramain, 507 F.3d at 1204; accord Mohamed, 614 F.3d at 1082. “The privileged information is excluded and the trial goes on without it.” General Dynamics Corp. v. U.S., ___ U.S. ___, 131 S.Ct. 1900, 1906 (2011).
As with any privilege, the state secrets privilege excludes only evidence from a particular, privileged source, and does not prevent proof of contested facts with evidence from a non-privileged source. Mohamed, 614 F.3d at 1090 (a “claim of privilege does not extend to public documents”). Moreover, “ ‘[a]s in any lawsuit, the plaintiff may prove his case by direct or circumstantial evidence.’ ” In re Sealed Case, 494 F.3d 139, 147 (D.C. Cir. 2007).
As in any case in which evidence is excluded because of a privilege or other rule of evidence, dismissal is possible in a state secrets privilege case if after discovery the plaintiff is unable to prove its case using nonprivileged evidence. “If, after further proceedings, the plaintiff cannot prove the prima facie elements of her claim with nonprivileged evidence, then the court may dismiss her claim as it would with any plaintiff who cannot prove her case.” Kasza v. Browner, 133 F.3d 1159, 1166 (9th Cir. 1998) (emphasis added); accord, Mohamed, 614 F.3d at 1083.
18

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 27 of 38
B. The Valid-Defense Exception Is Limited To Government Contract Claims And Does Not Apply Here
There is a “valid-defense” exception to the general rule that when evidence is excluded under the state secrets privilege, the lawsuit goes forward without the privileged evidence. Under the valid-defense exception, the evidence is not excluded but is used to the benefit of one party only—the defendant. “[I]f the privilege deprives the defendant of information that would otherwise give the defendant a valid defense to the claim, then the court may grant summary judgment to the defendant.” Mohamed, 614 F.3d at 1083 (internal quotation marks omitted).
Dismissing a lawsuit because the privileged evidence establishes a valid defense is contrary to the usual law of evidentiary privileges. Ordinarily, when privileged evidence is excluded, both sides are deprived of the use of it and the chips fall where they may—a rule favoring neither plaintiff nor defendant. Each party faces the possibility of losing the case even though the privileged evidence, if admissible, would enable that party to prevail. Under the valid-defense exception, however, the defendant prevails because the court determines the excluded privileged evidence establishes a valid defense, while the plaintiff never sees the excluded evidence and has no opportunity to rebut it.
Although this Court recognized the valid-defense exception in Mohamed, the Supreme Court in General Dynamics subsequently limited the exception to cases in which the claims arise out of government
19

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 28 of 38
contracts.4 As General Dynamics explains, the state secrets privilege the Supreme Court first recognized in U.S. v. Reynolds, 345 U.S. 1 (1953), is separate and distinct from the justiciability rules for government contracting cases the Court has developed in the line of cases beginning with Totten v. U.S., 92 U.S. 105 (1876), and extending through Tenet v. Doe, 544 U.S. 1 (2005), “two cases dealing with alleged contracts to spy,” General Dynamics, 131 S.Ct. at 1906.
The General Dynamics Court explained first the limits of the state secrets privilege: “Reynolds was about the admission of evidence. It decided a purely evidentiary dispute by applying evidentiary rules: The privileged information is excluded and the trial goes on without it. . . . But the Court did not order judgment in favor of the Government.” General Dynamics, 131 S.Ct. at 1906.
The Court next held that the source of the valid-defense exception is “our common-law authority to fashion contractual remedies in Governmentcontracting disputes.” General Dynamics, 131 S.Ct. at 1906; see also id. at 1907 (“Judicial refusal to enforce promises contrary to public policy”); 1908 (“the law of contracts”). It grounded the valid-defense exception in the ability of the parties to a government contract to allocate the risk that they 4 This panel has authority to reconsider prior Ninth Circuit precedent like Mohamed where, as here, a subsequent Supreme Court decision has “undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable.” Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).
20

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 29 of 38
will be unable to prove a contract breach claim because of the state secrets privilege. Id. at 1909. Refusing to enforce government contracts in those circumstances “captures what the ex ante expectations of the parties were or reasonably ought to have been. . . . Both parties . . . must have assumed the risk that state secrets would prevent the adjudication of [their] claims . . . .” Id. This reasoning has no application to claims not based on government contracts. Thus, dismissals under the valid-defense exception are limited to government contract cases. In non-contract cases, “[t]he privileged information is excluded and the trial goes on without it.” Id. at 1906.
C. Even If The Valid-Defense Exception Extended To Claims Not Arising Out Of Government Contracts, The District Court Misapplied It Here
Even if the valid-defense exception governed here, the district court misapplied it.
In General Dynamics, the Supreme Court addressed the burden a party must meet to obtain dismissal on the ground that the state secrets privilege deprives it of a valid defense. Emphasizing that dismissal is “the option of last resort, available in a very narrow set of circumstances” (id. at 1910), the Court held that dismissal is permissible only if the “defense is supported by enough evidence to make out a prima facie case” (id. at 1909), i.e., “enough evidence to survive summary judgment” (id. at 1910).
The principle articulated by the General Dynamics Court is well established. This Court has held dismissal in these circumstances requires
21

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 30 of 38
that the state secrets privilege deprive the defendant of “information that would otherwise give the defendant a valid defense.’ ” Mohamed, 614 F.3d at 1083 (emphasis added) (citing in accord In re Sealed Case, 494 F.3d at 153). This is a high standard to meet: “A ‘valid defense’ . . . is meritorious and not merely plausible and would require judgment for the defendant. ‘Meritorious,’ in turn, means ‘meriting a legal victory.’ ” In re Sealed Case, 494 F.3d at 149 (citations omitted, emphasis added). To determine whether the proposed defense is meritorious and requires judgment for the defendant, the district court must examine the privileged evidence and determine whether it proves the existence of the defense: “If the defendant proffers a valid defense that the district court verifies upon its review of state secrets evidence, then the case must be dismissed.” Id. at 153 (emphasis added). To avoid strategic assertions of the privilege, this verification must be especially searching when the government is not an intervenor but a defendant simultaneously withholding evidence under the privilege while seeking dismissal on the ground that it has thereby crippled itself from presenting a valid defense.
The District of Columbia Circuit, in the decision this Court relied upon in Mohamed, explained why the defense must be proven by the secret evidence to be “demonstrably valid” and not just “plausible”:
Were the valid-defense exception expanded to mandate dismissal of a complaint for any plausible or colorable defense, then virtually every case in which the United States successfully invokes the state secrets privilege would need to be
22

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 31 of 38
dismissed. This would mean abandoning the practice of deciding cases on the basis of evidence—the unprivileged evidence and privileged-but-dispositive evidence—in favor of a system of conjecture. . . . [I]t would be manifestly unfair to a plaintiff to impose a presumption that the defendant has a valid defense that is obscured by the privilege. There is no support for such a presumption among the other evidentiary privileges because a presumption would invariably shift the burdens of proof, something the courts may not do under the auspices of privilege. In re Sealed Case, 494 F.3d at 149-50. Here, the district court’s analysis undercuts its assertion that “the privileged information gives Defendants a valid defense.” ER 60. It does not appear that the government submitted to the district court any privileged evidence (as opposed to declarations asserting that evidence exists that is privileged). In its analysis, the court at most determined only that the broad categories of information subject to the privilege assertion were potentially relevant to plaintiffs’ claims, not that actual evidence existed establishing a demonstrably valid defense to each of the dismissed claims. ER 53, 61-62 (plaintiffs’ claims raise “fact-intensive questions that necessitate a detailed inquiry into the nature, scope, and reasons for the investigations under Operation Flex”; “with regard to Plaintiffs’ FTCA claim, the United States may have a valid defense”; “To establish that this defense applies to the Government’s counterterrorism investigations that purportedly violated Plaintiffs’ constitutional rights, the Government must marshal facts that fall within the three privileged categories of information related to Operation Flex”). The district court’s analysis falls far short of the requirement that the
23

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 32 of 38
court determine that for each claim there is a defense that is demonstrably valid, not just possible.
D. Threshold Dismissal Is Premature The past fifteen years have seen an explosion in the frequency with which the government asserts the state secrets privilege. Once an arcane bit of rarely-used evidence law, in the post-9/11 era the state secrets privilege has become the Executive’s principal line of defense for its newly expanded powers, including its expanded domestic surveillance powers, and it has used the privilege repeatedly to deflect any judicial inquiry into the lawfulness of those powers. Thus, it is now a matter of routine for the Executive to demand at the outset of a lawsuit not just the exclusion of privileged evidence, but outright dismissal of entire claims or the entire case, as occurred here. Avoiding judicial inquiry entirely, and not merely protecting national security evidence from public disclosure, is the Executive’s goal. Courts are exercising with renewed vigor their obligation to view skeptically and critically the Executive’s assertions of the privilege, and the Executive’s demands for threshold dismissal based on its dire predictions of the impossibility of litigating a lawsuit without inadvertent disclosure. See, e.g., Mohamed v. Holder, E.D. Va. No. 11-cv-050-AJT, ECF No. 144 (Oct. 30, 2014). There is a growing recognition that predictions of whether a lawsuit can be feasibly litigated using only non-secret evidence are ordinarily impossible to make at the outset of the case, and that courts are
24

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 33 of 38
capable of protecting secrets in civil litigation just as they do in criminal litigation under the Classified Information Procedures Act. See, e.g., Ibrahim v. Department of Homeland Security, N.D. Cal. No. 06-cv-545-WHA, ECF No. 682 (Jan. 14, 2014).
The district court here clearly erred in granting a threshold dismissal of all claims against the government on the ground that litigating plaintiffs’ claims using only nonprivileged evidence nonetheless presented an unjustifiable risk of revealing state secrets. ER 63-64. As this Court counseled in Mohamed, only in “rare” and “exceptional circumstances” is the “drastic result” of a threshold dismissal justifiable.5 Mohamed, 614 F.3d at 1077, 1089; accord General Dynamics, 131 S.Ct. at 1910 (dismissal is “the option of last resort, available in a very narrow set of circumstances”). Ordinarily, a court is in no position to determine whether litigation is feasible until after discovery has proceeded, the government has asserted the state secrets privilege with respect to specific items of evidence, the court 5 Indeed, it is dubious that any of Mohamed’s reasoning approving threshold dismissals survives the sharp distinction the General Dynamics court drew between dismissals under the Totten/Tenet line of cases, which it limited to government contracting cases, and the Reynolds evidentiary privilege. This Court held in Mohamed that dismissals under the unjustifiable-risk exception were authorized by Reynolds. Mohamed, 614 F.3d at 1083. General Dynamics, however, held that Reynolds was an evidentiary rule whose only consequence was to exclude evidence, that it was Totten, not Reynolds, that authorized such dismissals, and that Totten dismissals were a consequence of the common law of contracts. General Dynamics, 131 S.Ct. at 1906, 1907, 1909, 1910. General Dynamics thus has effectively overruled Mohamed on this point.
25

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 34 of 38
has “ ‘critically . . . examine[d]’ ” the privilege assertion as to each item of evidence, and, in instances in which it has sustained the privilege, has “ ‘disentangled’ ” privileged information from nonprivileged information. Mohamed, 614 F.3d at 1082. A court must also carefully separate any claims or defenses that can be litigated from those that cannot go forward because of the privilege. General Dynamics, 131 S.Ct. at 1907 n.*.
Attempting to discern “the impact of the government’s assertion of the state secrets privilege” at the pleading stage before the plaintiff’s claims have been developed and the relevancy of privileged evidence has been determined “is akin to putting the cart before the horse.” Crater Corp. v. Lucent Technologies, 423 F.3d 1260, 1268 (Fed. Cir. 2005). Instead, litigation goes forward with the privileged evidence excluded, at least until an informed determination can be made as to whether the nonprivileged evidence can be disentangled from the privileged evidence. That is what happened in Reynolds, where after excluding the privileged evidence the Supreme Court remanded for further proceedings to give the plaintiffs the opportunity “to adduce the essential facts as to causation without resort to material touching upon military secrets.” 345 U.S. at 11. It is what happens in state secrets cases generally. See, e.g., In re Sealed Case, 494 F.3d at 153 (remanding for further proceedings); Crater Corp., 423 F.3d at 1268-69 (reversing dismissal because record was not sufficiently developed to determine whether claims could proceed without the excluded state secrets evidence); DTM Research v. AT&T, 245 F.3d 327, 334 (4th Cir. 2001) (“we
26

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 35 of 38
cannot conclude at this stage as a matter of law that a fair trial cannot be had”; “the plaintiff’s case should be allowed to proceed, even if some otherwise relevant evidence might not be presented”); Monarch Assurance P.L.C. v. U.S., 244 F.3d 1356, 1364 (Fed. Cir. 2001) (holding dismissal was “premature” because plaintiff should be “give[n] a fair amount of leeway” “in building their case from non-government sources”); In re U.S., 872 F.2d 472, 478 (D.C. Cir. 1989) (“an item-by-item determination of privilege will amply accommodate the Government’s concerns”); Clift v. U.S., 597 F.2d 826, 827-30 (2d Cir. 1979) (reversing dismissal where plaintiff “has not conceded that without the requested documents he would be unable to proceed, however difficult it might be to do so”); Halkin v. Helms, 598 F.2d 1, 11 (D.C. Cir. 1978) (case remanded for further proceedings to determine whether the plaintiffs could prove some of their claims without resort to state secrets evidence); Ellsberg v. Mitchell, 709 F.2d 51, 64-65 & n.55 (D.C. Cir. 1983) (reversing dismissal and remanding for district court to “consider whether the plaintiffs were capable of making out a prima facie case without the privileged information”).
Here, it appears that the district court based its unjustifiable-risk dismissal on the conclusion that the privileged evidence regarding “the factual context of Operation Flex as a whole” would be “important background for a finder of fact to consider in her analysis.” ER 64. But that will almost always be true. Privileged evidence, whatever the nature of the privilege, is often important and relevant information that, but for the
27

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 36 of 38
privilege, should and would be considered by the trier of fact. The privileged evidence’s significance to the merits says nothing about whether the evidence could be feasibly excluded from the litigation process. Thus, the district court’s analysis does not support its conclusion.
CONCLUSION The Court should hold that section 1806(f) displaces the state secrets privilege for claims based on evidence of electronic surveillance, or, alternatively, that the valid-defense exception is limited to claims arising out of government contracts and that the valid-defense exception is not met here.
Dated: November 24, 2014 Respectfully submitted,
s/ Richard R. Wiebe RICHARD R. WIEBE LAW OFFICE OF RICHARD R. WIEBE CINDY COHN LEE TIEN KURT OPSAHL JAMES S. TYRE MARK RUMOLD ANDREW CROCKER DAVID GREENE ELECTRONIC FRONTIER FOUNDATION THOMAS E. MOORE III ROYSE LAW FIRM
COUNSEL FOR AMICUS
28

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 37 of 38
STATUTORY APPENDIX 50 U.S.C. § 1806(f)
50 U.S.C. § 1806(f) In camera and ex parte review by district court. Whenever a court or other authority is notified pursuant to subsection (c) or (d), or whenever a motion is made pursuant to subsection (e), or whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States of any State before any court or other authority of the United States or any state to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this Act, the United States district court or, where the motion is made before another authority, the United States district court in the same district as the authority, shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted. In making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.
29

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-1, Page 38 of 38

CERTIFICATE OF COMPLIANCE WITH RULE 32(a) This brief complies with the type-volume limitation of Fed. R. App. Pro. 29(d) and 32(a)(7)(B) because it contains 6604 words, excluding the parts of the brief exempted by Fed. R. App. Pro. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. Pro. 32(a)(5) and the type style requirements of Fed. R. App. Pro. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word in 14point Times New Roman.

Dated: November 24, 2014

s/ Richard R. Wiebe Counsel for Amicus

Case: 12-56867, 11/24/2014, ID: 9325456, DktEntry: 32-2, Page 1 of 1
9th Circuit Case Number(s) 13-55017, 12-56867 & 12-56874

NOTE: To secure your input, you should print the filled-in form to PDF (File > Print > PDF Printer/Creator).

*********************************************************************************
CERTIFICATE OF SERVICE When All Case Participants are Registered for the Appellate CM/ECF System

I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the

United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system

on (date)

.

11-24-14

I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

Signature (use "s/" format) s/ Richard R. Wiebe

*********************************************************************************
CERTIFICATE OF SERVICE When Not All Case Participants are Registered for the Appellate CM/ECF System

I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the

United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system

on (date)

.

Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.

I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within 3 calendar days to the following non-CM/ECF participants:

Signature (use "s/" format)

 
 Case 8:11-cv-00301-CJC-VBK Document 101 Filed 08/14/12 Page 1 of 36 Page ID #:1436

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

SOUTHERN DIVISION

11
12 YASSIR FAZAGA, ALI UDDIN 13 MALIK, YASSER ABDELRAHIM,
14
Plaintiffs,
15
vs.
16
17 FEDERAL BUREAU OF INVESTIGATION, ET AL.,
18
Defendants.
19

) ) Case No.: 8:11-cv-00301-CJC(VBKx) ) ) ) ) ) ) ORDER GRANTING DEFENDANTS’ ) MOTIONS TO DISMISS BASED ON ) THE STATE SECRETS PRIVILEGE ) ) ) ) ) )

20

21 I. INTRODUCTION

22

23

The present case involves a group of counterterrorism investigations by the Federal

24 Bureau of Investigation (“FBI”), dubbed “Operation Flex,” in which the FBI engaged a

25 covert informant to help gather information on certain, unidentified individuals from

26 2006 to 2007. Although some of the general facts about Operation Flex, including the

27 identity of one informant, Craig Monteilh, have been disclosed to the public, much of the

28 essential details of the operation remain classified. After disclosure of Monteilh’s

-1-

Case 8:11-cv-00301-CJC-VBK Document 101 Filed 08/14/12 Page 2 of 36 Page ID #:1437

1 identity, Plaintiffs, three Muslim residents of Southern California, filed a putative class 2 action against the FBI, the United States of America, and two FBI officers sued in their 3 official capacities (together, the “Government”) as well as five FBI agents sued in their 4 individual capacities (collectively, “Defendants”). Plaintiffs allege that Defendants

5 conducted an indiscriminate “dragnet” investigation and gathered personal information

6 about them and other innocent Muslim Americans in Southern California based on their

7 religion. In doing so, Plaintiffs allege that Defendants violated their constitutional and

8 civil rights under the First Amendment Free Exercise Clause and Establishment Clause, 9 the Religious Freedom Restoration Act (“RFRA”), the Fifth Amendment Equal 10 Protection Clause, the Privacy Act, the Fourth Amendment, the Foreign Intelligence 11 Surveillance Act (“FISA”), and the Federal Tort Claims Act (“FTCA”). Defendants 12 currently move to dismiss Plaintiffs’ claims and for summary judgment pursuant to 13 Federal Rules of Civil Procedure 12 and 56 on various grounds, including the state 14 secrets privilege. Defendants argue that all of Plaintiffs’ claims, aside from their FISA 15 and Fourth Amendment claims, must be dismissed because litigation of those claims

16 would risk or require disclosure of certain evidence properly protected by the Attorney

17 General’s assertion of the state secrets privilege.

18

19

The Attorney General’s privilege claim in this action requires the Court to wrestle

20 with the difficult balance that the state secrets doctrine strikes between the fundamental

21 principles of liberty, including judicial transparency, and national security. Although, as

22 the Ninth Circuit aptly opined, “as judges we strive to honor all of these principles, there

23 are times when exceptional circumstances create an irreconcilable conflict between

24 them.” Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1073 (9th Cir. 2010), cert.

25 denied, 131 S. Ct. 2442 (2011). “On those rare occasions, we are bound to follow the

26 Supreme Court’s admonition that ‘even the most compelling necessity cannot overcome

27 the claim of privilege if the court is ultimately satisfied that [state] secrets are at stake.’ ” 28 Id. (quoting United States v. Reynolds, 345 U.S. 1, 11 (1953)). Such is the case here.

-2-

Case 8:11-cv-00301-CJC-VBK Document 101 Filed 08/14/12 Page 3 of 36 Page ID #:1438

1 After careful deliberation and skeptical scrutiny of the public and classified filings, the 2 Court concludes that Plaintiffs’ claims against Defendants, aside from their FISA claim, 3 must be dismissed under the state secrets privilege.1 Further litigation of those claims

4 would require or unjustifiably risk disclosure of secret and classified information

5 regarding the nature and scope of the FBI’s counterterrorism investigations, the specific

6 individuals under investigation and their associates, and the tactics and sources of 7 information used in combating possible terrorist attacks on the United States and its 8 allies. The state secrets privilege is specifically designed to protect against disclosure of 9 such information that is so vital to our country’s national security.

10
11 II. BACKGROUND

12

13

The central subject matter of this case is a group of counterterrorism investigations

14 by the FBI, known as “Operation Flex,” which focused on fewer than 25 individuals and

15 “was directed at detecting and preventing possible terrorist attacks.” (Pub. Giuliano

16 Decl. ¶ 11.) During the investigations, the FBI utilized Craig Monteilh as a confidential

17 informant from 2006 to 2007. (Id. ¶¶ 6, 11.) “The goal of Operation Flex was to

18 determine whether particular individuals were involved in the recruitment and training of 19 individuals in the United States or overseas for possible terrorist activity.” (Id. ¶ 11.) 20 Plaintiffs allege that as part of Operation Flex, Defendants directed Monteilh to infiltrate 21 mosques and indiscriminately collect information about Plaintiffs and other members of 22 the Los Angeles and Orange County Muslim community because of their adherence to

23

24

25 1 Defendants’ motions to dismiss Plaintiffs’ FISA claim are discussed in the Court’s separate,
concurrently-issued Order. The Court finds that dismissal of Plaintiffs’ FISA claim against the 26 Government is warranted because sovereign immunity has not been waived. The Court, however, finds
27 that Plaintiffs have alleged sufficient facts to state a FISA claim against the individual-capacity Agent Defendants, who are not entitled to qualified immunity at this stage of the proceeding based on the
28 allegations pled in the First Amended Complaint.

-3-

Case 8:11-cv-00301-CJC-VBK Document 101 Filed 08/14/12 Page 4 of 36 Page ID #:1439

1 and practice of the religion of Islam from July 2006 to October 2007. (First Amended 2 Complaint (“FAC”) ¶¶ 1–3, 86, 167.)

3

4

The FBI has only acknowledged that Monteilh engaged in confidential source

5 work and disclosed limited information concerning Monteilh’s actions. (Pub. Giuliano 6 Decl. ¶ 6.) For example, in an unrelated criminal proceeding in this district, United 7 States v. Niazi, Case No. 8:09-cr-28-CJC(ANx), the FBI disclosed to the defendant 8 Ahmadullah Niazi the content of the audio and video recordings containing conversations 9 between him and Monteilh and others. (Id. ¶ 12.) The FBI also acknowledged in the 10 Niazi case that Monteilh provided handwritten notes to the FBI and that it produced 11 certain notes provided by Monteilh concerning Niazi. (Id.)2 However, essential details

12 regarding Operation Flex and Monteilh’s activities have not been disclosed, and the

13 Government asserts that this information “remains highly sensitive information 14 concerning counterterrorism matters that if disclosed reasonably could be expected to 15 cause significant harm to national security.” (Id. ¶ 6.) The allegedly privileged 16 information includes (i) the identities of the specific individuals who have or have not 17 been the subject of counterterrorism investigations, (ii) the reasons why individuals were

18 subject to investigation, including in Operation Flex, and their status and results, and (iii)

19 the particular sources and methods used in obtaining information for counterterrorism 20 investigations, including in Operation Flex. (Holder Decl. ¶ 4; Pub. Giuliano Decl. ¶ 6.) 21 The Government provides a more fulsome discussion of the nondisclosed matters in its ex 22 parte, in camera materials that include two classified declarations and a classified 23 supplemental memorandum. (Dkt. Nos. 35, 36, 56.)

24

25

26
27 2 With regard to these materials obtained by Monteilh, the FBI states that is it “presently assessing whether additional audio, video, or notes can be disclosed without risking disclosure of the privileged
28 information . . . and [risking] significant harm to national security interests in protecting counterterrorism investigations.” (Pub. Giuliano Decl. ¶ 12.)

-4-

Case 8:11-cv-00301-CJC-VBK Document 101 Filed 08/14/12 Page 5 of 36 Page ID #:1440

1

A. The Parties

2

3

Plaintiffs, Sheikh Yassir Fazaga, Ali Uddin Malik, and Yasser AbdelRahim

4 (collectively, “Plaintiffs”), are resident members of the Muslim community in Southern

5 California. (FAC ¶¶ 12–14.) Fazaga, a U.S. citizen born in Eritrea, has served as an

6 “imam” or religious leader of the Orange County Islamic Foundation (“OCIF”), a

7 mosque in Mission Viejo, California, and has lectured widely on topics of Islam and

8 American Muslims. (Id. ¶¶ 12, 55–56.) Malik, a U.S. citizen born in Southern

9 California, is a resident of Orange County and has regularly attended religious services at

10 the Islamic Center of Irvine (“ICOI”), a mosque in Irvine, California. (Id. ¶¶ 13, 68–69.)

11 AbdelRahim, a U.S. permanent resident from Egypt, has regularly attended religious 12 services at the ICOI. (Id. ¶¶ 14, 80.)

13

14

The Government Defendants consist of the FBI and the United States of America

15 as well as Robert Mueller, Director of the FBI, and Steven M. Martinez, Assistant

16 Director in Charge of the FBI Los Angeles Field Office, sued in their official capacities.

17 (Id. ¶¶ 15–17, 255.) Defendants also include five FBI agents, Kevin Armstrong, Paul

18 Allen, J. Stephen Tidwell, Barbara Walls, and Pat Rose (collectively, “Agent

19 Defendants”), who are sued in their individual capacities. (Id. ¶¶ 18–22.) Defendants

20 Armstrong and Allen, who were both assigned to the Orange County area, were handlers

21 for Monteilh and allegedly directed Monteilh to gather information on the Muslim

22 community in Orange County and also supervised his purported surveillance activities. 23 (Id. ¶¶ 18–19, 87.) Defendant Rose, who was assigned to the FBI’s Santa Ana branch

24 office, supervised the FBI’s Orange County national security investigations and directly 25 supervised Allen and Armstrong. (Id. ¶ 22.) Defendant Walls, the head of the FBI’s

26 Santa Ana branch office, directly supervised Allen, Armstrong, and Rose. (Id. ¶ 21.)

27 Defendant Tidwell served as the Assistant Director in Charge of the FBI’s Los Angeles

28 Field Office from August 2005 to December 2007, and in that capacity, supervised

-5-

Case 8:11-cv-00301-CJC-VBK Document 101 Filed 08/14/12 Page 6 of 36 Page ID #:1441

1 operations in the Central District of California. (Id. ¶ 20.) Plaintiffs allege Tidwell 2 authorized the selection of Monteilh as an informant and directed the actions of 3 Armstrong, Allen, Rose, Walls, and other agents in the handling of Monteilh. (Id.)

4

5

B. Operation Flex3

6

7

Plaintiffs allege many disturbing facts about Operation Flex and wrongdoing by

8 Defendants. Sometime prior to July 2006, Plaintiffs allege that the FBI hired Monteilh to

9 be a paid informant to covertly gather information about Muslims in the Irvine area.

10 (FAC ¶ 48.) Monteilh became a Muslim convert, began to attend the ICOI and five of

11 the other largest mosques in Orange County, and assumed the name Farouk al-Aziz. (Id.

12 ¶¶ 49–50, 92.) Monteilh interacted with many members of the Muslim community in

13 Southern California during the relevant time period, including Plaintiffs, as part of a 14 “broader pattern of dragnet surveillance program that Monteilh engaged in at the behest 15 of his FBI handlers,” known as “Operation Flex,” which referenced Monteilh’s cover as a 16 fitness instructor. (Id. ¶¶ 54–85, 86, 88.) Armstrong and Allen, who supervised all of 17 Monteilh’s work, informed Monteilh that Operation Flex was part of a broader 18 surveillance program that went beyond his work. (Id. ¶ 88.) Defendants did not limit

19 Monteilh to specific targets on which they wanted information, but “repeatedly made 20 clear that they were interested simply in Muslims” and that he should gather “as much 21 information on as many people in the Muslim community as possible,” with heightened 22 attention to particularly religious members and those who attracted Muslim youths. (Id. 23 ¶¶ 89, 90, 98.) Plaintiffs allege that “[t]he central feature of the FBI agents’ instructions

24 to Monteilh was their directive that he gather information on Muslims, without any

25 further specification,” and indiscriminately gather information about them under the

26
27 3 The Court emphasizes that the facts regarding Operation Flex are only allegations from the FAC and do not constitute established facts or disclosures by Defendants. The FBI has neither confirmed nor
28 denied that Monteilh collected information specifically in connection with any of the Plaintiffs or the putative class members.

-6-

Case 8:11-cv-00301-CJC-VBK Document 101 Filed 08/14/12 Page 7 of 36 Page ID #:1442

1 maximum that “everybody knows somebody” who may have some connection with the 2 Taliban, Hezbollah, and Hamas. (Id. ¶¶ 89, 117.)

3

4

Over the course of Operation Flex, Plaintiffs allege that Armstrong and Allen sent

5 Monteilh to conduct surveillance and audio recording in approximately ten mosques in 6 Los Angeles and Orange County. (Id. ¶ 92.) Defendants provided Monteilh with

7 surveillance tools, including sophisticated audio and video recording devices, such as key

8 fobs with audio recording capability and a hidden camera outfitted to his shirt, to conduct 9 an “indiscriminate surveillance” of Muslims, who were targeted “solely due to their 10 religion.” (Id. ¶¶ 86, 122, 124, 128.) Defendants gathered information about Plaintiffs 11 and other members of the Muslim community through these devices and from extensive 12 review of Monteilh’s handwritten notes about all aspects of his daily interactions with 13 Muslims. (Id. ¶ 122.) Plaintiffs allege that Armstrong and Allen were well aware that 14 many of the surveillance tools they had given Monteilh were being used illegally without 15 warrants. (Id. ¶ 136.)

16

17

Plaintiffs allege that the FBI Agents instructed Monteilh to utilize surveillance

18 strategies aimed at gathering information on Muslims in an indiscriminate manner. (Id. ¶

19 99.) The Agents’ key directive was that Monteilh gather information from “anyone from

20 any mosque without any specific target, for the purpose of collecting as much

21 information as possible about Muslims in the community.” (Id. ¶ 114.) Armstrong and

22 Allen instructed Monteilh to obtain information through various methods, including

23 seizing every opportunity to meet people, obtain their contact information, and learn

24 about their background and religious and political views. (Id. ¶ 101.) Monteilh did not

25 limit surveillance to any particular group of people but instead socialized widely with

26 different groups and individuals regardless of their ethnic origin or language. (Id. ¶¶

27 102–103.) Armstrong and Allen further instructed Monteilh to gather information on

28 Muslims’ charitable givings, attend Muslim fundraising events, collect information on

-7-

Case 8:11-cv-00301-CJC-VBK Document 101 Filed 08/14/12 Page 8 of 36 Page ID #:1443

1 travel plans of Muslims in the community, attend lectures by Muslim scholars and other 2 guest speakers, attend classes and dawn prayers at mosques, track followers of extremist 3 jihadist websites, elicit people’s views on extremist scholars and thinkers, work out with 4 Muslims he met at a local gym, and gather any compromising information about Muslims 5 that Defendants could use against them to persuade them to become informants. (Id. ¶¶

6 105–16.) Plaintiffs allege that the consistent theme throughout these different

7 surveillance gathering strategies was in Armstrong’s and Allen’s “expressed interest in

8 gathering information only on Muslims,” and their setting aside any non-Muslims who 9 were identified through surveillance Monteilh performed. (Id. ¶ 120.)

10

11

Plaintiffs allege that through Monteilh, Defendants gathered information on

12 Muslims and their associates consisting of hundreds of phone numbers and thousands of

13 email addresses; background information on hundreds of individuals; hundreds of hours

14 of video recordings that captured the interiors of mosques, homes, businesses, and the

15 associations of Muslims; and thousands of hours of audio recordings of conversations as

16 well as recordings of religious lectures, discussion groups, classes, and other Muslim 17 religious and cultural events occurring in mosques. (Id. ¶¶ 2, 137.) Plaintiffs allege that

18 the FBI’s “dragnet investigation did not result in even a single conviction related to 19 counterterrorism” because, unsurprisingly, “the FBI did not gather the information based 20 on suspicion of criminal activity, but instead gathered the information simply because the 21 targets were Muslim.” (Id. ¶ 3.) Plaintiffs allege Monteilh discontinued working for 22 Defendants as an informant around September 2007. (Id. ¶ 151.)

23

24

25

26 ///

27 ///

28

-8-

Case 8:11-cv-00301-CJC-VBK Document 101 Filed 08/14/12 Page 9 of 36 Page ID #:1444

1

C. Disclosure of Monteilh’s Identity

2

3

In February 2009, the FBI acknowledged that it had utilized Monteilh as a

4 confidential informant during a criminal proceeding in the Niazi case. (Pub. Giuliano

5 Decl. ¶ 11; FAC ¶¶ 155–59.)4 Subsequent to this disclosure, Monteilh has provided

6 numerous statements to the media discussing his purported activities on behalf of the 7 FBI. (Pub. Giuliano Decl. ¶ 14; FAC ¶ 162.)5 In January 2010, Monteilh also filed a 8 civil lawsuit under 42 U.S.C. §§ 1983 and 1985 in this district against the FBI, its agents, 9 and the City of Irvine in Monteilh v. FBI, Case No. 8:10-cv-102-JVS(RNBx). In that 10 case, Monteilh made allegations related to his work as an FBI source in Operation Flex.

11 (Pub. Giuliano Decl. ¶ 14; FAC ¶ 164.) The FBI has neither confirmed nor denied any of

12 Monteilh’s public allegations concerning his work for the agency, and the FBI maintains

13 that Monteilh’s allegations do not constitute a disclosure or confirmation by the FBI of 14 any information concerning his activities as an informant. (Pub. Giuliano Decl. ¶ 14; 15 FAC ¶ 164.) In this case, Monteilh has submitted a declaration, dated April 23, 2010, in 16 support of Plaintiffs’ opposition to Defendants’ motions to dismiss in which he makes 17 allegations regarding his work for the FBI in Operation Flex similar to those asserted in

18 the FAC. (Dkt. No. 66; FAC ¶ 167.)

19

20

D. The Lawsuit

21

22

On February 22, 2011, Plaintiffs filed the instant suit against the FBI and its

23 officers and agents. (Dkt. No. 1.) On August 1, 2011, the FBI, Mueller, and Martinez

24 moved to dismiss the Complaint and for summary judgment on the grounds, inter alia,

25
4 This Court dismissed the Niazi indictment without prejudice on September 30, 2010. (Case No. 8:0926 cr-28-CJC(ANx), Ct. Order, Dkt. No. 40, Sept. 30, 2010.)
27 5 See, e.g., Jerry Markon, Tension Grows between Calif. Muslims, FBI after Informant Infiltrates 28 Mosque, WASH. POST (Dec. 5, 2010).

-9-

Case 8:11-cv-00301-CJC-VBK Document 101 Filed 08/14/12 Page 10 of 36 Page ID #:1445

1 that certain evidence needed to litigate Plaintiffs’ claims is properly protected by the 2 Attorney General’s assertion of the state secrets privilege. (Dkt. No. 32.) In support of 3 their privilege claim, they submitted for ex parte, in camera review by the Court (i) a 4 classified declaration of Mark F. Giuliano, FBI Assistant Director, Counterterrorism

5 Division and (ii) a classified supplemental memorandum. (Dkt. Nos. 35, 36.) The Agent

6 Defendants also separately moved to dismiss the Complaint. (Dkt. Nos. 41–42.) Shortly 7 thereafter, Plaintiffs moved ex parte to stay the Court’s review of the classified filings

8 until after its consideration of whether the state secrets argument would apply in this case 9 as a matter of law. (Dkt. No. 39.) Plaintiffs argued that such a ruling would prevent the 10 Court from unnecessarily reviewing information that could be highly prejudicial to 11 Plaintiffs and not properly subject to consideration by the Court. (Pls. Ex Parte App., at 12 8.) The Court denied Plaintiffs’ ex parte application because the Court determined that 13 there was no legal bar to its review of the classified submissions and because it was 14 confident that its independent evaluation would not be compromised by the contents of 15 those submissions. (Ct. Order, Dkt. No. 46, Aug. 11, 2011.)

16

17

On September 13, 2011, Plaintiffs filed the operative FAC, adding a claim under

18 the FTCA against the United States. (Dkt. No. 49.) Plaintiffs assert a total of eleven 19 causes of action against Defendants: (1) violation of the First Amendment Establishment 20 Clause under Bivens and 28 U.S.C. § 1331 (against all Defendants except the FBI and 21 United States); (2) violation of the First Amendment Establishment Clause under 42 22 U.S.C. § 1985(3) and 28 U.S.C. § 1343 (against Agent Defendants); (3) violation of the 23 First Amendment Free Exercise Clause under Bivens and 28 U.S.C. § 1331 (against all 24 Defendants except the FBI and United States); (4) violation of the First Amendment Free 25 Exercise Clause under 42 U.S.C. § 1985(3) and 28 U.S.C. § 1343 (against Agent

26 Defendants); (5) violation of RFRA, 42 U.S.C. § 2000bb-1 (against all Defendants); 27 (6) violation of the Fifth Amendment Equal Protection Clause under Bivens and 28

28 U.S.C. § 1331 (against all Defendants except the FBI and United States); (7) violation of

-10-

Case 8:11-cv-00301-CJC-VBK Document 101 Filed 08/14/12 Page 11 of 36 Page ID #:1446

1 the Equal Protection Clause under 42 U.S.C. § 1985(3) and 28 U.S.C. § 1343 (against 2 Agent Defendants); (8) violation of the Privacy Act, 5 U.S.C. § 552a(a)–(l) (against the 3 FBI); (9) violation of the Fourth Amendment under Bivens and 28 U.S.C. § 1331 (against

4 the FBI and United States); (10) violation of FISA, 50 U.S.C. § 1810 (against all

5 Defendants); and (11) invasion of privacy, violation of Cal. Civ. Code § 52.1, and 6 intentional infliction of emotion distress under the FTCA, 28 U.S.C. §§ 1346(b), 2671, et 7 seq. (against the United States).6 Plaintiffs request damages as well as injunctive relief in 8 the form of the destruction or return of any information gathered through Operation Flex. 9 Plaintiffs further seek certification of “[a]ll individuals targeted by Defendants for 10 surveillance or information-gathering through Monteilh and Operation Flex, on account

11 of their religion, and about whom the FBI thereby gathered personally identifiable

12 information.” (FAC ¶ 219.)

13

14

On November 4, 2011, the Government moved to dismiss the FAC and for

15 summary judgment pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and

16 56. (Dkt. No. 55.) The Government moves to dismiss all of Plaintiffs’ claims, aside

17 from the FISA and Fourth Amendment claims, on the grounds that, inter alia, litigation

18 of these claims would risk or require the disclosure of certain evidence properly protected

19 by the Attorney General’s assertion of the state secrets privilege. In support of their 20 privilege claim, the Government relies on its previously-filed public declaration from the 21 Attorney General, Eric H. Holder, dated July 29, 2011, (Dkt. No. 32-3), and a public 22 declaration from Mark Giuliano, dated July 25, 2011, (Dkt. No. 33). The Government 23 also relies on its previously-lodged, August 1, 2011 in camera filings, the classified

24 declaration of Giuliano and the classified supplemental memorandum, (Dkt. Nos. 35, 36).

25 In addition, the Government lodged a classified supplemental declaration of Giuliano on

26

27 6 For claims 1, 3, 6, and 9, Plaintiffs assert claims for damages under Bivens against individual-capacity 28 Agent Defendants and assert claims for injunctive relief under Section 1331 against the official-capacity
Defendants. (See FAC ¶ 226 n.37.)

-11-

Case 8:11-cv-00301-CJC-VBK Document 101 Filed 08/14/12 Page 12 of 36 Page ID #:1447

1 November 4, 2011, which provided a status update on certain investigations discussed in 2 the classified Giuliano Declaration. (Dkt. No. 56.)

3

4

Defendants Tidwell and Walls separately moved to dismiss claims against them

5 under Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 58.) Tidwell and Walls argue,

6 in part, that the Government’s assertion of the state secrets privilege mandates dismissal

7 of Counts 1 through 7. (Tidwell/Walls Br., at 9–12.) Defendants Rose, Armstrong, and

8 Allen also moved to dismiss the FAC under Rule 12(b)(6) and joined in the motions to 9 dismiss filed by the Government and Defendants Tidwell and Walls. (Dkt. No. 57.) On 10 December 23, 2011, Plaintiffs opposed the Government’s motion and filed a combined 11 opposition to the Agent Defendants’ motions to dismiss. (Dkt. Nos. 63, 64.) Defendants 12 filed replies in support of their respective motions to dismiss on January 20, 2012. (Dkt. 13 Nos. 69–71.) After granting the parties’ requests for continuances of the hearing on 14 Defendants’ motions to dismiss, the Court heard extended oral arguments on the motions 15 from the parties’ counsel on August 14, 2012.

16
17 III. LEGAL STANDARD

18

19

A. The State Secrets Doctrine

20

21

“The Supreme Court has long recognized that in exceptional circumstances courts

22 must act in the interest of the country’s national security to prevent disclosure of state

23 secrets, even to the point of dismissing a case entirely.” Jeppesen Dataplan, 614 F.3d at

24 1077 (citing Totten v. United States, 92 U.S. 105, 107 (1875)). Created by federal

25 common law, the state secrets doctrine bars litigation of an action entirely or excludes

26 certain evidence because the case or evidence risks disclosure of “state secrets”—that is, 27 “matters which, in the interest of national security, should not be divulged.” Reynolds,

28 345 U.S. at 10. Although developed at common law, the state secrets doctrine also

-12-

Case 8:11-cv-00301-CJC-VBK Document 101 Filed 08/14/12 Page 13 of 36 Page ID #:1448

1 “performs a function of constitutional significance, because it allows the executive 2 branch to protect information whose secrecy is necessary to its military and foreign3 affairs responsibilities.” El-Masri v. United States, 479 F.3d 296, 303 (4th Cir. 2007). At 4 the same time, the state secrets doctrine does not represent an abdication of judicial

5 control over access to the courts, as the judiciary is ultimately tasked with deciding 6 whether the doctrine properly applies to a particular case. Id. at 312. The state secrets

7 doctrine thus attempts to strike a difficult balance between the Executive’s duty to protect

8 national security information and the judiciary’s obligation to preserve judicial 9 transparency in its search for the truth. Id. at 303–305.

10

11

There are two modern applications of the state secrets doctrine: (1) a justiciability

12 bar that forecloses litigation altogether because the very subject matter of the case is a

13 state secret (the “Totten bar”) and (2) an evidentiary privilege that excludes certain

14 evidence because it implicates secret information and may result in dismissal of claims

15 (the “Reynolds privilege”). Jeppesen Dataplan, 614 F.3d at 1077–80. While distinct, the

16 Totten bar and the Reynolds privilege converge in situations where the government

17 invokes the privilege—as it may properly do—before waiting for an evidentiary dispute 18 to arise during discovery or trial. Id. at 1080 (“The privilege may be asserted at any time, 19 even at the pleading stage.”). The privilege indisputably may be raised with respect to 20 discovery requests seeking allegedly privileged information or to prevent disclosure of 21 such information in a responsive pleading. Id. at 1081. Alternatively, “the government 22 may assert a Reynolds privilege claim prospectively, even at the pleading stage, rather 23 than waiting for an evidentiary dispute to arise during discovery or trial.” Id. In such 24 circumstances, the Totten bar necessarily informs the Reynolds privilege in a “continuum 25 of analysis.” Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190, 1201 (9th Cir.

26 2007).

27

28

-13-

Case 8:11-cv-00301-CJC-VBK Document 101 Filed 08/14/12 Page 14 of 36 Page ID #:1449

1

1. The Totten Bar

2

3

The Supreme Court in Totten v. United States articulated the general principle that

4 “public policy forbids the maintenance of any suit in a court of justice, the trial of which

5 would inevitably lead to the disclosure of matters which the law itself regards as

6 confidential.” 92 U.S. at 107. The Totten bar is a categorical bar “where the very subject

7 matter of the action . . . [is] a matter of state secret,” such that the action is “dismissed on

8 the pleadings without ever reaching the question of evidence since it [is] so obvious that

9 the action should never prevail over the privilege.” Reynolds, 345 U.S. at 11 n.26;

10 accord Jeppesen Dataplan, 614 F.3d at 1077–78; see also Al-Haramain, 507 F.3d at

11 1197 (“[W]here the very subject matter of a lawsuit is a matter of state secret, the action

12 must be dismissed without reaching the question of evidence.”). The purpose of the 13 Totten bar is not merely to defeat the asserted claims, but to foreclose judicial inquiry 14 altogether. Tenet v. Doe, 544 U.S. 1, 6 n.4 (2005); Jeppesen Dataplan, 614 F.3d at 1078.

15

16

The Supreme Court has very sparingly applied this bar to preclude judicial review

17 of an action entirely. See Totten, 92 U.S. at 106–107 (barring suit by Civil War spy

18 against the United States for alleged failure to pay for espionage services because the

19 case was predicated on the existence of an undisclosed contract for secret services with

20 the government); Weinberger v. Catholic Action of Hawaii/Peace Educ. Project, 454

21 U.S. 139, 146–47 (1981) (holding action against the United States Navy exceeded

22 judicial scrutiny based on state secrets because it implicated information regarding 23 nuclear weapons storage that the Navy could not admit or deny); Tenet, 544 U.S. at 8–10

24 (precluding judicial review of action by former Cold War spies against the Central

25 Intelligence Agency for allegedly reneging on promise to pay for espionage services

26 because plaintiffs’ relationship with the government was state secrets). Beyond these

27 three cases, the Supreme Court has not provided further guidance on what subject matters

28 would constitute state secrets. The Ninth Circuit in Jeppesen, however, declined to

-14-

Case 8:11-cv-00301-CJC-VBK Document 101 Filed 08/14/12 Page 15 of 36 Page ID #:1450

1 interpret the Totten bar as only applying to certain types of cases, such as those involving 2 covert espionage agreements, but emphasized that “the Totten bar rests on a general

3 principle that extends beyond that specific context” and applies “ ‘where the very subject

4 matter of the action’ is ‘a matter of state secret.’ ” 614 F.3d at 1078–79 (quoting

5 Reynolds, 345 U.S. at 11 n.26). The El-Masri court further clarified that “[t]he

6 controlling inquiry is not whether the general subject matter of an action can be described

7 without resort to state secrets”; rather, it must be ascertained “whether an action can be

8 litigated without threatening the disclosure of such state secrets.” El-Masri, 479 F.3d at

9 308. “Thus, for purposes of the state secrets analysis, the ‘central facts’ and ‘very subject

10 matter’ of an action are those facts that are essential to prosecuting the action or

11 defending against it.” Id.

12

13

2. The Reynolds Privilege

14

15

The second application of the state secrets doctrine is an evidentiary privilege

16 against revealing state secrets. Jeppesen Dataplan, 614 F.3d at 1079. Derived from

17 United States v. Reynolds, this privilege applies when the court is satisfied “from all the

18 circumstances of the case, that there is a reasonable danger that compulsion of the

19 evidence will expose . . . matters which, in the interest of national security, should not be

20 divulged.” Reynolds, 345 U.S. at 10; see also id. at 10–11 (finding that the government

21 made a sufficient showing of privilege, “under circumstances indicating a reasonable

22 possibility that military secrets were involved,” to cut off demand for an accident

23 investigation report of an aircraft testing secret electronic equipment). A successful 24 assertion of the Reynolds privilege will remove the privileged evidence from the case. 25 Jeppesen Dataplan, 614 F.3d at 1079. In some instances, however, “the assertion of the

26 privilege will require dismissal because it will become apparent during the Reynolds

27 analysis that the case cannot proceed without privileged evidence, or that litigating the

28 case to a judgment on the merits would present an unacceptable risk of disclosing state

-15-

Case 8:11-cv-00301-CJC-VBK Document 101 Filed 08/14/12 Page 16 of 36 Page ID #:1451

1 secrets.” Id. The Ninth Circuit in Jeppesen Dataplan applied the Reynolds privilege to 2 dismiss an action brought by foreign nationals who were allegedly transported in secret to 3 other countries where they were detained and interrogated under the Central Intelligence 4 Agency’s (“CIA”) extraordinary rendition program. 614 F.3d at 1085–90. The Ninth 5 Circuit held that dismissal under the state secrets privilege was required under Reynolds

6 because there was no feasible way to litigate the defendant’s liability without creating “an

7 unjustifiable risk of divulging state secrets” related to the CIA’s secret intelligence 8 activities. Id. at 1087. When such dismissal is required, the Reynolds privilege 9 converges with the Totten bar. Id. at 1083.

10

11

An analysis of claims under the Reynolds privilege involves three steps. First, the

12 court must ascertain whether the procedural requirements for invoking the privilege,

13 consisting of a formal claim by the government, have been satisfied. Id. at 1080.

14 Second, the court must independently determine whether the information is privileged.

15 Id. Third, the court must determine how the case should proceed in light of the

16 successful privilege claim. Id. Once the privilege is properly invoked, and the court is

17 satisfied as to the danger of disclosing state secrets, the privilege is absolute. Kasza v.

18 Browner, 133 F.3d 1159, 1166 (9th Cir. 1998); see also Reynolds, 345 U.S. at 11

19 (“[E]ven the most compelling necessity cannot overcome the claim of privilege if the

20 court is ultimately satisfied that [state] secrets are at stake.”); In re United States, 872

21 F.2d 472, 476 (D.C. Cir. 1989) (“No competing public or private interest can be

22 advanced to compel disclosure [of privileged information].” (citation and quotes

23 omitted)). This is because, in determining whether the privilege applies to a particular

24 case, “the balance has already been struck in favor of protecting secrets of state over the

25 interest of a particular litigant.” In re United States, 872 F.2d at 476 (citation and quotes

26 omitted). The Supreme Court has therefore cautioned that the privilege “is not to be

27 lightly invoked,” and must be applied no more often or extensively than necessary. 28 Reynolds, 345 U.S. at 7–8; see also Jeppesen Dataplan, 614 F.3d at 1080.

-16-

Case 8:11-cv-00301-CJC-VBK Document 101 Filed 08/14/12 Page 17 of 36 Page ID #:1452

1

B. Threshold Considerations

2

3

Plaintiffs raise two threshold issues with regard to whether the state secrets

4 doctrine may apply in this case, neither of which are persuasive. First, Plaintiffs argue

5 that FISA preempts the state secrets privilege. Plaintiffs insist that because most, if not

6 all, of the conduct at issue in this case involves electronic surveillance in the name of 7 foreign intelligence gathering in the domestic context, the Court should adhere to the 8 procedures that Congress has set for the treatment of secret evidence in FISA.7 (Pls. 9 Opp’n to Gov’t, at 20–21, 26–31.) The Court disagrees. As a preliminary matter, the 10 question of whether FISA preempts the state secrets privilege is not at issue because

11 Defendants have not moved to dismiss the FISA claim on privilege grounds. Moreover,

12 even if FISA preempts the state secrets privilege with respect to a FISA claim, as ruled 13 by the Northern District of California in In re Nat’l Sec. Agency Telecomms. Records 14 Litig., 564 F. Supp. 2d 1109, 1120 (N.D. Cal. 2008),8 Plaintiffs cite no authority for the 15 proposition that FISA also preempts non-FISA claims. Nor has the Court found any 16 statute, including the language of FISA, or case law supporting an expansive application 17 of FISA to Plaintiffs’ non-FISA claims in this case. Plaintiffs rely on In re National 18 Security Agency, 564 F. Supp. 2d at 1118, for the proposition that FISA preempts the

19 state secrets privilege in cases, as here, which involve electronic surveillance undertaken 20 in the name of national security. (Pls. Opp’n to Gov’t, at 26, 29). However, the court in 21 that case clarified that “FISA does not preempt the state secrets privilege as to matters 22 that are not within FISA’s purview,”—that is, “activities [that] include foreign 23 intelligence surveillance.” In re National Security Agency, 564 F. Supp. at 1118. In the

24

25 7 See the Court’s concurrently-filed Order, which discusses the FISA claim in detail. 26 8 The Court In re National Security determined that “FISA should displace federal common law rules
such as the state secrets privilege with regard to matters within FISA’s purview.” 564 F. Supp. 2d at
27 1120. As the Government does not move to dismiss the FISA claim on the basis of state secrets, the
Court need not and does not decide at this time whether FISA preempts the state secrets privilege with 28 respect to a FISA claim.

-17-

Case 8:11-cv-00301-CJC-VBK Document 101 Filed 08/14/12 Page 18 of 36 Page ID #:1453

1 present action, however, the central subject matter is Operation Flex, a group of 2 counterterrorism investigations that extend well beyond the purview of electronic 3 surveillance as discussed in the Government’s public and classified filings. Plaintiffs’ 4 non-FISA claims also rely upon allegations far broader in scope than allegations upon

5 which the FISA claim is predicated, and litigating those non-FISA claims will require 6 information, including privileged evidence, beyond that contemplated by FISA. (See 7 infra Part IV.C.)

8

9

Second, Plaintiffs argue that the Constitution prohibits dismissal of this case on

10 state secret grounds because they seek injunctive relief from on-going constitutional

11 violations. (Pls. Opp’n to Gov’t, at 20, 40–51.) This argument, likewise, is unsupported

12 by any authority, let alone Ninth Circuit or Supreme Court precedent. The principles of

13 the state secrets doctrine make clear that it is analyzed and applied to cases irrespective of

14 the types of claims or relief sought. See Tenet, 544 U.S. at 8 (“[P]ublic policy forbids the

15 maintenance of any suit in a court of justice, the trial of which would inevitably lead to

16 the disclosure of matters which the law itself regards as confidential.” (quoting Totten, 92

17 U.S. at 107)); Kasza, 133 F.3d at 1166 (“Once the privilege is properly invoked and the

18 court is satisfied as to the danger of divulging state secrets, the privilege is absolute. . . 19 .”); Jeppesen Dataplan, 614 F.3d at 1081 (“If this standard [for privilege] is met, the 20 evidence is absolutely privileged, irrespective of the plaintiffs’ countervailing need for 21 it.”). In fact, in Al-Haramain, the Ninth Circuit found that the state secrets privilege 22 applied to and warranted dismissal of constitutional claims involving requests for 23 injunctive relief. 507 F.3d at 1205. In that case, Al-Haramain Islamic Foundation, a 24 designated terrorist organization, and two of its attorneys brought suit against the 25 government in connection with the government’s Terrorist Surveillance Program. 507

26 F.3d at 1193. The plaintiffs in that case alleged that they were subject to warrantless

27 electronic surveillance in violation of FISA and various provisions of the Constitution. 28 Id. In addition to a request to enjoin further warrantless surveillance, the plaintiffs sought

-18-

Case 8:11-cv-00301-CJC-VBK Document 101 Filed 08/14/12 Page 19 of 36 Page ID #:1454

1 the same injunctive relief as Plaintiffs here do—disclosure and/or destruction of 2 information and records acquired from allegedly unlawful surveillance—and also 3 similarly alleged violations under the First and Fourth Amendments. Al-Haramain 4 Islamic Found., Inc. v. Bush, 451 F. Supp. 2d 1215, 1218 (D. Or. 2006), rev’d and 5 remanded by Al-Haramain, 507 F.3d 1190. The Ninth Circuit in Al-Haramain found 6 dismissal of the action appropriate under the Reynolds privilege because the defendant 7 could not establish standing without the privileged information. 507 F.3d at 1205.9 8 Accordingly, the Court finds that the state secrets doctrine may properly be considered in 9 this case.

10
11 IV. APPLICATION OF THE STATE SECRETS DOCTRINE

12

13

The Government requests dismissal of all of Plaintiffs’ claims against Defendants,

14 aside from the FISA and Fourth Amendment claims, under the Reynolds privilege. The

15 Government argues that dismissal of these claims under the state secrets privilege is

16 appropriate because it has satisfied the procedural requirements for invoking the privilege

17 and further litigation of the action would risk or require the disclosure of state secrets

18 related to Operation Flex. More specifically, the Government contends that because

19 Plaintiffs’ claims are premised on their core allegation that Defendants conducted an 20 indiscriminate religion-based investigation, any rebuttal against this allegation would risk 21 or require disclosure of privileged information—whom and what the FBI was 22 investigating under Operation Flex and why—in order to establish that the investigation 23 was properly predicated and focused. (Gov’t Br., at 5–6, 45–53.) The Court agrees. As

24 discussed more fully below, because further litigation of this action would require or, at

25 the very least, create an unjustifiable risk of disclosure of state secrets, the Court finds

26

27 9 Plaintiffs’ argument is additionally misplaced because, even assuming that their argument regarding 28 constitutional claims for injunctive relief had merit, it would be inapplicable as to their claims for
damages against Defendants.

-19-

Case 8:11-cv-00301-CJC-VBK Document 101 Filed 08/14/12 Page 20 of 36 Page ID #:1455

1 that dismissal of Plaintiffs’ claims, aside from their FISA claim, is required under the 2 Reynolds privilege.

3

4

A. Procedural Requirements

5

6

The Reynolds privilege may only be asserted by the government, and a private

7 party can neither claim nor waive the privilege. Jeppesen Dataplan, 614 F.3d at 1080;

8 Reynolds, 345 U.S. at 7. The government cannot invoke the privilege lightly, especially

9 where it seeks not merely to preclude the production of certain evidence, but to obtain

10 dismissal of the action entirely. Jeppesen Dataplan, 614 F.3d at 1080. There are several

11 mechanisms to ensure that the Reynolds privilege is invoked no more than is necessary.

12 Id. First, “[t]here must be a formal claim of privilege, lodged by the head of the

13 department which has control over the matter, after actual personal consideration by that

14 officer.” Reynolds, 345 U.S. at 7–8. “This certification is fundamental to the

15 government’s claim of privilege,” as the decision to invoke the privilege must “ ‘be a

16 serious, considered judgment, not simply an administrative formality.’ ” Jeppesen

17 Dataplan, 614 F.3d at 1080 (quoting United States v. W.R. Grace, 526 F.3d 499, 507–508

18 (9th Cir. 2008) (en banc)). The formal claim must “reflect the certifying official’s 19 personal judgment,” and be presented in “sufficient detail” to permit the court “to make 20 an independent determination of the validity of the claim of privilege and the scope of the 21 evidence subject to the privilege.” Id. at 1080.

22

23

Second, even before invoking the privilege in court, the government must adhere

24 to its own State Secrets Policy, promulgated by the Obama administration in a

25 memorandum by the Attorney General in September 2009, effective October 1, 2009.

26 (Holder Decl. ¶ 12 & Exh. 1 [State Secrets Policy]); see also Jeppesen Dataplan, 614

27 F.3d at 1077. The Policy outlines the legal standard for invoking the privilege: the

28 government will assert and defend an assertion of the state secrets privilege in litigation

-20-

Case 8:11-cv-00301-CJC-VBK Document 101 Filed 08/14/12 Page 21 of 36 Page ID #:1456

1 “when a government department or agency seeking to assert the privilege makes a 2 sufficient showing that assertion of the privilege is necessary to protect information the 3 unauthorized disclosure of which reasonably could be expected to cause significant harm 4 to the national defense or foreign relations (“national security”) of the United States.”

5 (Holder Decl., Exh. 1 ¶ 1(A).) The privilege must also be “narrowly tailored,” such that

6 the “privilege should be invoked only to the extent necessary to protect against the risk of 7 significant harm to national security.” (Id. ¶ 1(B).) The Policy further sets limitations for

8 invoking the privilege, including not defending an invocation of the privilege to “conceal 9 violations of the law, inefficiency, or administrative error”; to “prevent embarrassment to 10 a person, organization, or agency of the United States government”; or to “prevent or 11 delay the release of information the release of which would not reasonably be expected to 12 cause significant harm to national security. (Id. ¶ 1(C).) The Policy further outlines the 13 initial procedure for invoking the privilege, which includes sufficient evidentiary support 14 and recommendation from the Assistant Attorney General; evaluation, consultation, and 15 recommendation by a state secrets review committee; and approval by the Attorney 16 General. (Id. ¶¶ 2–4.)

17

18

The Government has properly invoked the state secrets privilege. The Government

19 has submitted a public declaration from Eric Holder in his capacity as the Attorney

20 General and head of the Department of Justice. The Attorney General has made a formal

21 assertion of the state secrets privilege after personal consideration of the public and

22 classified materials at the request of the director of the FBI: “After careful and actual

23 personal consideration of the matter, I have concluded that disclosure of the three

24 categories of information described below and in more detail in the classified Giuliano

25 Declaration could reasonably be expected to cause significant harm to the national

26 security, and I therefore formally assert the state secrets privilege over this information.”

27 (Holder Decl. ¶ 3.) The Attorney General also avers that the requirements for an

28

-21-

Case 8:11-cv-00301-CJC-VBK Document 101 Filed 08/14/12 Page 22 of 36 Page ID #:1457

1 assertion and defense of the state secrets privilege have been satisfied in accordance with 2 the State Secrets Policy. (Id. ¶ 12.)10

3

4

B. Independent Evaluation of the Privilege Claim

5

6

After a court determines that the privilege has been properly invoked, it then

7 “ ‘must make an independent determination whether the information is privileged.’ ”

8 Jeppesen Dataplan, 614 F.3d at 1080, 1081 (quoting Al-Haramain, 507 F.3d at 1202).

9 “The court must sustain a claim of privilege when it is satisfied, ‘from all the

10 circumstances of the case, that there is a reasonable danger that compulsion of the

11 evidence will expose . . . matters which, in the interest of national security, should not be 12 divulged.’ ” Id. at 1081 (quoting Reynolds, 345 U.S. at 10). “The Executive bears the 13 burden of satisfying a reviewing court that the Reynolds reasonable-danger standard is 14 met.” El-Masri, 479 F.3d at 305. The government cannot satisfy this burden by the mere 15 conclusory assertion that the standard has been met. El-Masri, 479 F.3d at 312. “Simply 16 saying ‘military secret,’ ‘national security’ or ‘terrorist threat’ or invoking an ethereal 17 fear that disclosure will threaten our nation is insufficient to support the privilege.” Al18 Haramain, 507 F.3d at 1203. Rather, the government must provide “[s]ufficient detail” to 19 enable the court to conduct a meaningful examination. Id. In some instances, a formal 20 privilege claim asserted in a declaration may suffice, while in others, the court may 21 conduct an in camera examination of the allegedly privileged information. El-Masri, 479

22
23 10 The Court cannot and does not comment on whether the Government has properly adhered to its State Secrets Policy, as this is internal to the Executive branch, and the Policy does not create a substantive or
24 procedural right enforceable at law or in equity against the Government. (See Holder Decl., Exh. 1 ¶ 7.) However, the Court does observe that the Government has narrowly tailored its assertion of the privilege
25 by moving on other grounds before invoking the privilege and has done so with restraint. (See Gov’t Br., at 3–7.) While the Court has considered Defendants’ initial grounds for dismissal before analyzing
26 the state secrets privilege, the Court believes they are limited and do not entirely warrant dismissal of 27 Plaintiffs’ claims. In contrast, the Court finds that all of Plaintiffs’ claims, aside from their FISA claim,
should be dismissed under the Reynolds privilege. For this reason and for the sake of judicial economy, 28 the Court limits its discussion to the state secrets doctrine in this Order and the FISA claim in the
Court’s concurrently-issued Order.

-22-

Case 8:11-cv-00301-CJC-VBK Document 101 Filed 08/14/12 Page 23 of 36 Page ID #:1458

1 F.3d at 305. “The degree to which such a reviewing court should probe depends in part 2 on the importance of the assertedly privileged information to the position of the party 3 seeking it.” Id.; see also Reynolds, 345 U.S. at 11 (“In each case, the showing of 4 necessity which is made will determine how far the court should probe in satisfying itself

5 that the occasion for invoking the privilege is appropriate.”) At the same time, the Court

6 must make this determination “without forcing a disclosure of the very thing the privilege 7 is designed to protect.” Reynolds, 345 U.S. at 8. “If this standard is met, the evidence is 8 absolutely privileged, irrespective of the plaintiffs’ countervailing need for it.” Jeppesen 9 Dataplan, 614 F.3d at 1081.

10

11

Here, the Government asserts the privilege over three categories of information

12 related to Operation Flex as described in their public and classified filings: (i) subject

13 identification, (ii) reasons for counterterrorism, and (iii) sources and methods. First, the

14 FBI seeks to protect “[i]nformation that could tend to confirm or deny whether a

15 particular individual was or was not the subject of an FBI counterterrorism investigation,

16 including in Operation Flex.” (Holder Decl. ¶ 4; Pub. Giuliano Decl. ¶ 15.) Second, the 17 FBI seeks to protect “[i]nformation that could tend to reveal the initial reasons (i.e.,

18 predicate) for an FBI counterterrorism investigation of a particular person (including in 19 Operation Flex), any information obtained during the course of such an investigation, and 20 the status and results of the investigation. This category includes any information 21 obtained from the U.S. Intelligence Community related to the reasons for an 22 investigation.” (Holder Decl. ¶ 4; Pub. Giuliano Decl. ¶ 15.) Third, the FBI seeks to 23 protect “[i]nformation that could tend to reveal whether particular sources and methods 24 were used in a counterterrorism investigation of a particular subject, including in 25 Operation Flex,” and “previously undisclosed information related to whether court-

26 ordered searches or surveillance, confidential human sources, and other investigative

27 sources and methods were used in a counterterrorism investigation of a particular person,

28 the reasons such methods were used, the status of the use of such sources and methods,

-23-

Case 8:11-cv-00301-CJC-VBK Document 101 Filed 08/14/12 Page 24 of 36 Page ID #:1459

1 and any results derived from such methods.” (Holder Decl. ¶ 4; Pub. Giuliano Decl. ¶

2 15.)

3

4

Beyond the Government’s descriptions of these categories of information in its

5 public declarations, the Court heavily relies upon the classified declarations and

6 supplemental memorandum to determine whether disclosure of the information described

7 above could reasonably be expected to cause significant harm to national security. In

8 making this determination, the Court assumes the “ ‘special burden to assure itself that an

9 appropriate balance is struck between protecting national security matters and preserving

10 an open court system.’ ” Jeppesen Dataplan, 614 F.3d at 1081 (quoting Al-Haramain,

11 507 F.3d at 1203); see also El-Masri, 479 F.3d at 304 (“This inquiry is a difficult one, for

12 it pits the judiciary’s search for truth against the Executive’s duty to maintain the nation’s

13 security.”). On the one hand, the Court “acknowledge[s] the need to defer to the

14 Executive on matters of foreign policy and national security and surely cannot 15 legitimately find [itself] second guessing the Executive in this arena.” Jeppesen

16 Dataplan, 614 F.3d at 1081–82; see also El-Masri, 479 F.3d at 305 (“In assessing the risk

17 that such a disclosure [of state secrets] might pose to national security, a court is obliged

18 to accord the ‘utmost deference’ to the responsibilities of the executive branch.” (quoting

19 United States v. Nixon, 418 U.S. 683, 710 (1974)). On the other hand, “ ‘the state secrets

20 doctrine does not represent a surrender of judicial control over access to the courts.’ ”

21 Jeppesen Dataplan, 614 F.3d at 1082 (quoting El-Masri, 479 F.3d at 312); see also 22 Reynolds, 345 U.S. at 9–10 (“Judicial control over the evidence in a case cannot be

23 abdicated to the caprice of executive officers.”) Rather, the Court has the obligation “to

24 ensure that the state secrets privilege is asserted no more frequently and sweepingly than 25 necessary,” by critically examining the instances of its invocation, Ellsberg v. Mitchell,

26 709 F.2d 51, 58 (D.C. Cir. 1983), with “a very careful, indeed a skeptical, eye, and not to

27 accept at face value the government’s claim or justification of privilege,” Al-Haramain,

28 507 F.3d at 1203. See also Jeppesen Dataplan, 614 F.3d at 1082. But the Court cannot

-24-

Case 8:11-cv-00301-CJC-VBK Document 101 Filed 08/14/12 Page 25 of 36 Page ID #:1460

1 delve so deeply that it discloses the very information the privilege is meant to protect. 2 Reynolds, 345 U.S. at 8 (“Too much judicial inquiry into the claim of privilege would 3 force disclosure of the thing the privilege is meant to protect, while a complete 4 abandonment of judicial control would lead to intolerable abuses.”)

5

6

The Court has thoroughly and skeptically examined the Government’s public and

7 classified submissions. In particular, the Court has critically scrutinized the Attorney

8 General’s classified declarations and the classified memorandum—which are 9 comprehensive and detailed—since they were submitted for the Court’s ex parte, in 10 camera review in August and November 2011. The Court is convinced that the subject 11 matter of this action, Operation Flex, involves intelligence that, if disclosed, would 12 significantly compromise national security. The Court is further convinced that litigation 13 of this action would certainly require or, at the very least, greatly risk disclosure of secret 14 information, such that dismissal at this stage of the proceeding is required. This is 15 because, as described more fully below, the Government will inevitably need the

16 privileged information to defend against Plaintiffs’ core allegation that Defendants

17 conducted an indiscriminate “dragnet” investigation and gathered information on 18 Plaintiffs and Muslims in Southern California based on their religion. (See infra Part 19 IV.C.)

20

21

In their Opposition, Plaintiffs argue that the Government’s first category of

22 information is not privileged because everyone who had contact with Monteilh already

23 knows that they were targeted for investigation. (Pls. Opp’n to Gov’t, at 31–32.)

24 However, aside from the general information about Operation Flex and the identity of

25 Monteilh as an informant, the Government has not confirmed or denied the identities of

26 the fewer than 25 individuals who were under investigation. Plaintiffs further argue that 27 because the Government has not explicitly invoked the Totten bar, it has effectively 28 conceded that the very subject matter of this action is not a state secret. (Id. at 23.) But

-25-

Case 8:11-cv-00301-CJC-VBK Document 101 Filed 08/14/12 Page 26 of 36 Page ID #:1461

1 while some of the general facts of Operation Flex are public knowledge, the facts 2 required to litigate the action—e.g., to defend against Plaintiffs’ claims of indiscriminate

3 targeting of Muslims—requires disclosure of information that is classified and privileged. 4 El Masri, 479 F.3d at 308 (“[F]or purposes of the state secrets analysis, the ‘central facts’

5 and ‘very subject matter’ of an action are those facts that are essential to prosecuting the

6 action or defending against it.”) Plaintiffs’ position to the contrary implies an overly

7 rigid understanding of the difference between the Totten bar and Reynolds privilege that

8 is inconsistent with the Ninth Circuit’s application of the state secrets doctrine. As the

9 Jeppesen court indicated, the state secrets analysis under the Totten bar converges with its

10 progeny when, as here, the Government requests dismissal at the pleading stage because

11 defense against plaintiff’s claims requires privileged evidence or further litigation of the 12 case would present an unacceptable risk of disclosing state secrets. Jeppesen Dataplan, 13 614 F.3d at 1083. (See infra Part IV.C.)

14

15

While the Court cannot describe the specific contents of the classified materials—

16 as this would thwart the very purpose of the privilege claim—the Court can make the

17 following observations. In the context of a counterterrorism investigation, subject

18 identification may include information about persons residing in the United States or

19 abroad, such as Afghanistan, Lebanon, the Palestinian Territories, Yemen, and other

20 regions in the Middle East, whom law enforcement has and has not decided to investigate

21 depending on their nexus to terrorist organizations, such as al Qaeda, the Taliban,

22 Hezbollah, and Hamas. Subjects and their associates may also be investigated because

23 they are suspected of or involved in the recruitment, training, indoctrination, or

24 radicalization of individuals for terrorist activities or fundraising for terrorist

25 organizations. More directly, individuals subjected to counterterrorism investigations

26 may be involved in plotting terrorist attacks. In the nearly eleven years that have passed

27 since September 11, 2001, Islamic extremists have continued to plot and attempt to carry

28 out numerous terrorist attacks both on U.S. soil and abroad against U.S. targets and allies.

-26-

Case 8:11-cv-00301-CJC-VBK Document 101 Filed 08/14/12 Page 27 of 36 Page ID #:1462

1 Such attacks are not abstract events born out of fear, but are real and insidious. The

2 Daily Beast reported that as of September 8, 2011, “there have been at least 45 jihadist

3 terrorist-attack plots against Americans since 9/11―each of them thwarted by a 4 combination of intelligence work, policing and citizen participation.” John Avlon, Forty-

5 Five Foiled Terror Plots Since 9/11, Daily Beast (Sept. 8, 2011),

6 http://www.thedailybeast.com/articles/2011/09/08/9-11-anniversary-45-terror-plots-

7 foiled-in-last-10-years.html. The article notes that “these are just the plotted attacks that

8 we know about through public documentation” and that “the real number of credible

9 plots is no doubt much higher.” Id. Examples of recent, known terrorist attempts include

10 the September 2009 scheme by Najibullah Zazi, who was arrested for plotting to attack

11 the New York City subway system, as well as the December 2009 failed attempt by Umar

12 Farouk Abdulmutallab to bomb Northwest Flight 253 to Chicago and the May 2010 13 failed attempt of Faisal Shazad to detonate a car bomb in Times Square. (See Pub.

14 Giuliano Decl. ¶¶ 8–9.) Subjects and their associates may be further investigated because

15 they have ties to homegrown violent extremists who do not necessarily receive guidance

16 from terrorist groups overseas but may be inspired by the global jihadist movement to

17 commit violent acts inside the United States. Such was the case for a group of armed

18 men who were arrested before they could execute their plot to kill people inside a

19 military recruiting center in Santa Monica, California, on September 11, 2005, and then

20 later open fire on families outside of temple during Yom Kippur in West Los Angeles.

21 (See id. ¶ 10.)

22

23

Disclosure of subjects under investigation would undoubtedly jeopardize national

24 security. This is because persons under investigation would be alerted to the FBI’s

25 interest in them and cause them to flee, destroy evidence, or alter their conduct so as to

26 avoid detection, which would seriously impede law enforcement’s and intelligence

27 officers’ ability to determine their location or gain further intelligence on their activities.

28 (Holder Decl. ¶ 6; Pub. Giuliano Decl. ¶ 23.) Disclosure of those not under investigation

-27-

Case 8:11-cv-00301-CJC-VBK Document 101 Filed 08/14/12 Page 28 of 36 Page ID #:1463

1 by the FBI is, likewise, dangerous because individuals who desire to commit terrorist acts 2 may then be motivated to do so upon discovering that they are not being monitored. 3 Information about who is being investigated while the status of others are unconfirmed 4 may be manipulated by individuals and terrorist groups to discover whether they or any

5 of their members are being investigated. (Holder Decl. ¶ 7; Pub. Giuliano Decl. ¶ 24.)

6

7

The second and third categories of information necessarily overlap with the first.

8 The reasons and results of counterterrorism investigations may include the identities of 9 human sources, such as confidential informants or undercover agents and officers (other 10 than Monteilh); existent or suspected links between individuals and terrorist 11 organizations; the results of surveillance efforts; and information shared among law 12 enforcement and other government agencies. This category of evidence will also likely 13 involve information about the status of the investigation—whether a particular 14 investigation is open or closed—or the substantive details of the investigations 15 themselves. With regard to the third category, this is likely to include information similar

16 to the first and second categories, such as what, if any, confidential human sources

17 besides Monteilh were used; whether court-authorized searches or surveillance occurred,

18 such as wire taps and monitoring of electronic communication; whether the investigations 19 involved undercover activity or physical surveillance; and whether interviews with 20 suspects and their associates were conducted. The disclosure of the reasons and results of 21 counterterrorism investigations would unquestionably compromise national security 22 because it would reveal to those involved in plotting terrorist activities what the FBI 23 knows and does not know about their plans and thereby enable them to evade detection. 24 (Holder Decl. ¶ 9; Pub. Giuliano Decl. ¶ 29.) The disclosure of the methods and sources 25 would endanger national security because it could reveal the identities of particular

26 subjects and the steps taken by the FBI in counterterrorism matters, thereby effectively

27 disclosing a road map to adversaries on how the FBI detects and prevents terrorist

28 activities. (Holder Decl. ¶ 10; Pub. Giuliano Decl. ¶ 31.)

-28-

Case 8:11-cv-00301-CJC-VBK Document 101 Filed 08/14/12 Page 29 of 36 Page ID #:1464

1

Aside from these explanations, the Court cannot and need not give any further

2 details with regard to the contents of the classified materials. See Kasza, 133 F.3d at

3 1169 (concluding that in camera review of classified declarations “was an appropriate

4 means to resolve the applicability and scope of the state secrets privilege,” and “[n]o

5 further disclosure or explanation is required”). The Court, however, is thoroughly

6 convinced that the Government has described, in sufficient detail, the nature of the

7 privileged information and reasons why its disclosure would compromise national

8 security in its classified filings. Plaintiffs no doubt are frustrated that the Court is 9 precluded from giving any more specifics. But “[a]n inherent feature of the state secrets 10 privilege . . . is that the party against whom it is asserted will often not be privy to the 11 information that the Executive seeks to protect.” El-Masri, 479 F.3d at 312. While the 12 Government must persuade the Court with “[s]ufficient detail” that their assertion of the 13 privilege is warranted, Al-Haramain, 507 F.3d at 1203, it has no obligation to divulge any 14 details of the privileged matter to Plaintiffs. (See Pls. Opp’n to Gov’t, at 31 n.17 15 (criticizing the Government’s public declarations for not describing the alleged privileged

16 information with sufficient specificity). Nevertheless, Plaintiffs’ unfamiliarity with the

17 classified materials’ explanation for the privilege does not imply that “no such

18 explanation was required,” or that the Court’s “ruling was simply an unthinking 19 ratification of a conclusory demand by the executive branch.” El-Masri, 479 F.3d at 312.

20

21

C. Consequences of the Privilege Claim

22

23

If the court sustains a claim of privilege, then “ ‘the ultimate question to be

24 resolved is how the matter should proceed in light of the successful privilege claim.’ ”

25 Jeppesen Dataplan, 614 F.3d at 1080, 1082 (quoting Al-Haramain, 507 F.3d at 1202).

26 Ordinarily, a successful claim of the privilege may simply entail excluding or walling off 27 the secret evidence. Id. at 1082. But in some instances, as here, application of the 28 privilege may require dismissal of the case. Id. at 1083. Dismissal is appropriate in cases

-29-

Case 8:11-cv-00301-CJC-VBK Document 101 Filed 08/14/12 Page 30 of 36 Page ID #:1465

1 where “the court may be able to determine with certainty from the nature of the 2 allegations and the other government’s declarations in support of its claim of secrecy that 3 litigation must be limited or cut off in order to protect state secrets, even before any 4 discovery or evidentiary requests have been made.” Id. at 1081. There are three 5 circumstances when the Reynolds privilege warrants terminating a case entirely, rather 6 than removing the evidence at issue: (1) “if the plaintiff cannot prove the prima facie

7 elements of her claim with nonprivileged evidence,” (2) “if the privilege deprives the

8 defendant of information that would otherwise give the defendant a valid defense to the 9 claim, then the court may grant summary judgment to the defendant,” and (3) “even if the 10 claims and defenses might theoretically be established without relying on privileged 11 evidence, it may be impossible to proceed with the litigation because—privileged 12 evidence being inseparable from nonprivileged information that will be necessary to the 13 claims or defenses—litigating the case to a judgment on the merits would present an 14 unacceptable risk of disclosing state secrets.” Id. (citations and quotes omitted). The 15 second and third circumstances are applicable here.

16

17

1. Privileged Information Needed for Defense

18

19

Dismissal of all of Plaintiffs’ claims, aside from their FISA claim, is required

20 because the privileged information gives Defendants a valid defense. Jeppesen

21 Dataplan, 614 F.3d at 1083. This analysis of the Reynolds privilege necessarily

22 coincides with the Totten bar, which permits dismissal of an action at the outset if the

23 very subject matter of the action is a state secret. Reynolds, 345 U.S. at 11 n.26. The key

24 test is not whether the general subject matter of Operation Flex is a state secret, but

25 whether this case can be “litigated without threatening the disclosure of such state

26 secrets.” El-Masri, 479 F.3d at 308. “Subject matter” of an action means “those facts

27 that are essential to prosecuting the action or defending against it.” Id. (emphasis added);

28 see also id. at 309–11 (affirming dismissal of action under the Reynolds privilege because

-30-

Case 8:11-cv-00301-CJC-VBK Document 101 Filed 08/14/12 Page 31 of 36 Page ID #:1466

1 defendants needed privileged information related to CIA intelligence operations to defend 2 itself against plaintiff’s claims); Kasza, 133 F.3d at 1166 (stating that dismissal is proper 3 “if the privilege deprives the defendant of information that would otherwise give the 4 defendant a valid defense to the claim” (citation and quotes omitted)).

5

6

Here, Plaintiffs’ claims are predicated on their core allegation that Defendants

7 engaged in an indiscriminate investigation, surveillance, and collection of information of

8 Plaintiffs and the putative class because they are Muslim. (FAC ¶¶ 1–3, 86, 167.) Based 9 on this allegation, Plaintiffs assert that Defendants’ scheme discriminated against 10 Plaintiffs because of their religion in violation of the Establishment Clause (claims 1, 2); 11 substantially burdened the exercise of their religion without a legitimate government 12 interest in violation of the Free Exercise Clause (claims 3, 4) and the RFRA (claim 5); 13 and violates the Equal Protection Clause (claims 6, 7). Plaintiffs also assert that 14 Defendants’ alleged scheme violates the Privacy Act, the Fourth Amendment prohibition 15 against unreasonable searches, and FISA (claims 8, 9, 10). Finally, Plaintiffs assert that

16 the United States is liable to Plaintiffs for the Agent Defendants’ invasion of their

17 privacy, violation of Cal. Civ. Code § 52.1, and for intentional infliction of emotional

18 distress under California law pursuant to the FTCA (claim 11).

19

20

Plaintiffs contend that they do not need privileged information to prove their

21 discrimination claims against Defendants. (Pls. Opp’n to Gov’t, at 37.) The Court does

22 not speculate on what Plaintiffs already have in their possession and whether that is

23 enough to prove their claims at this stage of the proceeding. But even assuming that

24 Plaintiffs do not require privileged information to establish their claims, the Court is

25 persuaded that privileged information provides essential evidence for Defendants’ full

26 and effective defense against Plaintiffs’ claims—namely, showing that Defendants’

27 purported “dragnet” investigations were not indiscriminate schemes to target Muslims,

28 but were properly predicated and focused. Doing so would require Defendants to

-31-

Case 8:11-cv-00301-CJC-VBK Document 101 Filed 08/14/12 Page 32 of 36 Page ID #:1467
1 summon privileged evidence related to Operation Flex, including the subjects who may 2 or may not have been under investigation, the reasons and results of those investigations, 3 and their methods and sources. Additionally, even if Plaintiffs can successfully show that 4 Defendants’ actions substantially burdened their exercise of religion with nonprivileged 5 information, defense against Plaintiffs’ First Amendment claims entails analysis of 6 whether the Government had a “compelling state interest” and its actions were “narrowly 7 tailored” to achieve that interest. Church of the Lukumi Babalu Aye, Inc. v. City of 8 Hialeah, 508 U.S. 520, 546 (1993); see also Navajo Nation v. United States Forest Serv., 9 535 F.3d 1058, 1068 (9th Cir. 2008) (“[S]hould the plaintiff establish a substantial burden 10 on his exercise of religion [for a RFRA claim], the burden of persuasion shifts to the 11 government to prove that the challenged government action is in furtherance of a 12 ‘compelling governmental interest’ and is implemented by ‘the least restrictive 13 means.’ ”). These are fact-intensive questions that necessitate a detailed inquiry into the 14 nature, scope, and reasons for the investigations under Operation Flex. Moreover, with 15 regard to Plaintiffs’ FTCA claim, the United States may have a valid defense under the 16 discretionary function exception, Sabow v. United States, 93 F.3d 1445, 1451 (9th Cir. 17 1996), which requires the Court to determine “whether the challenged acts . . . are of the 18 nature and quality that Congress intended to shield from tort liability.” United States v. 19 Varig Airlines, 467 U.S. 797, 813 (1984); see also Dichter-Mad Family Partners, LLP v. 20 United States, 707 F. Supp. 2d 1016, 1018–19 (C.D. Cal. 2010). To establish that this 21 defense applies to the Government’s counterterrorism investigations that purportedly 22 violated Plaintiffs’ constitutional rights, the Government must marshal facts that fall 23 within the three privileged categories of information related to Operation Flex.11
24
25 11 Plaintiffs further argue that the Government misunderstands the nature of their religious discrimination claim, which they assert does not require proof that religion is the “sole” reason for their
26 having been targeted for surveillance, but rather that religion was “a” reason that they were targeted. 27 Plaintiffs argue that their essential claim is that religion should be treated like race for the purposes of
anti-discrimination law in that its use should always be justified by strict scrutiny. (Pls. Opp’n to Gov’t, 28 at 21.) As a preliminary matter, Plaintiffs’ characterization of their own allegation contradicts the
express language in their FAC. (See FAC ¶ 86 (alleging that the FBI Agents’ instructions to Monteilh
-32-

Case 8:11-cv-00301-CJC-VBK Document 101 Filed 08/14/12 Page 33 of 36 Page ID #:1468

1

2. Inseparable from Privileged Information

2

3

Dismissal of Plaintiffs’ claims is also required because, even if the claim or

4 defense may be theoretically established without relying on privileged information, the

5 Court is convinced that the privileged and nonprivileged information are inextricably

6 intertwined, such that litigating the instant case to judgment on the merits would present

7 an unacceptable risk of disclosing state secrets. Jeppesen Dataplan, 614 F.3d at 1083.

8 “ ‘[W]henever possible, sensitive information must be disentangled from nonsensitive

9 information to allow for the release of the latter.’ ” Kasza, 133 F.3d at 1166 (quoting

10 Ellsberg, 709 F.2d at 57). But “when, as a practical matter, secret and nonsecret

11 information cannot be separated,” the Court may “restrict the parties’ access not only to

12 evidence which itself risks the disclosure of a state secret, but also those pieces of

13 evidence or areas of questioning which press so closely upon highly sensitive material 14 that they create a high risk of inadvertent or indirect disclosures.” Jeppesen Dataplan, 15 614 F.3d at 1082 (citation and quotes omitted); see also Kasza, 133 F.3d at 1166 (“[I]f

16 seemingly innocuous information is part of a classified mosaic, the state secrets privilege

17 may be invoked to bar its disclosure and the court cannot order the government to

18 disentangle this information from other classified information.”); id. at 1169–70

19 (affirming dismissal under the state secrets privilege of action involving allegations that

20 the United States Air Force had unlawfully handled hazardous waste in classified

21 operating locations because litigation of plaintiff’s claims required and risked, under the

22 “classified mosaic” theory, disclosure of privileged information).

23

24

25
ensured that “Plaintiffs and numerous other people were surveilled solely due to their religion”) 26 (emphasis added)).) Regardless of the semantics used, however, for the purpose of the state secrets 27 analysis, there is little difference between alleging that Plaintiffs were targeted because of their religion
or solely based on their religion. Defense against the claim that Defendants targeted Plaintiffs because 28 of their religion requires the Government to draw on privileged information to show that the
investigations were proper and narrowly targeted for a legitimate purpose.

-33-

Case 8:11-cv-00301-CJC-VBK Document 101 Filed 08/14/12 Page 34 of 36 Page ID #:1469

1

Here, as in Jeppesen Dataplan and Kasza, the subject matter of this case,

2 Operation Flex, involves both privileged and nonprivileged information, which cannot be

3 separated as a practical matter. Indeed, Operation Flex comprises only a small part of the

4 classified mosaic in the FBI’s larger counterterrorism investigations, which predate and

5 go beyond Monteilh’s source work. The effort to separate privileged from nonprivileged

6 information—even with the protective procedures available to the Court—presents an

7 unjustifiable risk of disclosing state secrets. As the Ninth Circuit observed,

8 “[a]dversarial litigation, including pretrial discovery of documents and witnesses and the

9 presentation of documents and testimony at trial, is inherently complex and

10 unpredictable.” Jeppesen Dataplan, 614 F.3d at 1089. “Although district courts are well

11 equipped to wall off isolated secrets from disclosure, the challenge is exponentially

12 greater in exceptional cases like this one, where the relevant secrets are difficult or

13 impossible to isolate and even efforts to define a boundary between privileged and

14 unprivileged evidence would risk disclosure by implication.” Id. In such rare

15 circumstances, as here, the risk of disclosure that further litigation would engender cannot

16 be averted through protective orders or restrictions on testimony. Id. This is true even as

17 to Plaintiffs’ Fourth Amendment claim because it is impossible to excise the facts

18 directly related to this claim from the factual context of Operation Flex as a whole, and

19 that context forms an important background for a finder of fact to consider in her

20 analysis. While this case is only at the pleading stage and Plaintiffs have not yet

21 propounded any discovery requests, (Arulanantham Decl. ¶ 2), Defendants need not wait

22 before discovery or evidentiary disputes are at issue to assert the privilege for dismissal.

23 Jeppesen Dataplan, 614 F.3d at 1081 (“Courts are not required to play with fire and

24 chance further disclosure—inadvertent, mistaken, or even intentional—that would defeat

25 the very purpose for which the privilege exists.” (quoting Sterling v. Tenet, 416 F.3d 338,

26 344 (4th Cir. 2005)). Accordingly, because further litigation of this action would create

27 “an unjustifiable risk of revealing state secrets” related to the FBI’s counterterrorism

28 investigations, dismissal of Plaintiffs’ claims is warranted. Id. at 614 F.3d at 1088.

-34-

Case 8:11-cv-00301-CJC-VBK Document 101 Filed 08/14/12 Page 35 of 36 Page ID #:1470

1 V. CONCLUSION

2

3

The state secrets privilege strives to achieve a difficult compromise between the

4 principles of national security and constitutional freedoms. The state secrets privilege

5 can only be invoked and applied with restraint, in narrow circumstances, and infused with

6 judicial skepticism. Yet, when properly invoked, it is absolute—the interest of protecting

7 state secrets cannot give way to any other need or interest. Navigating through the

8 narrow straits of the state secrets privilege has not been an easy or enviable task for the

9 Court. In the context of the Executive’s counterterrorism efforts engendered by 9/11, the

10 Court has been confronted with the difficult task of balancing its obligation to defer to the

11 Executive in matters of national security with its duty to promote open judicial inquiry.

12 Too much deference would short-circuit constitutional liberties while too much judicial

13 inquiry would risk disclosure of information that would jeopardize national security. In

14 struggling with this conflict, the Court is reminded of the classic dilemma of Odysseus,

15 who faced the challenge of navigating his ship through a dangerous passage, flanked by a

16 voracious six-headed monster, on the one side, and a deadly whirlpool, on the other.

17 Odysseus opted to pass by the monster and risk a few of his individual sailors, rather than

18 hazard the loss of his entire ship to the sucking whirlpool. Similarly, the proper

19 application of the state secrets privilege may unfortunately mean the sacrifice of

20 individual liberties for the sake of national security. El-Masri, 479 F.3d at 313 (“[A]

21 plaintiff suffers this reversal not through any fault of his own, but because his personal

22 interest in pursuing his civil claim is subordinated to the collective interest in national 23 security.”); Sterling, 416 F.3d at 348 (“[T]here can be no doubt that, in limited

24 circumstances . . . the fundamental principle of access to court must bow to the fact that a 25 nation without sound intelligence is a nation at risk.”); Fitzgerald v. Penthouse Int’l, Ltd.,

26 776 F.2d 1236, 1238 n.3 (4th Cir. 1985) (“When the state secrets privilege is validly

27 asserted, the result is unfairness to individual litigants—through the loss of important

28 evidence or dismissal of a case—in order to protect a greater public value.”)

-35-

Case 8:11-cv-00301-CJC-VBK Document 101 Filed 08/14/12 Page 36 of 36 Page ID #:1471

1

The Court recognizes the weight of its conclusion that Plaintiffs must be denied a

2 judicial forum for their claims. The Court does not reach its decision today lightly, but

3 does so only reluctantly, after months of careful review of the parties’ submissions and

4 arguments, particularly the Government’s in camera materials upon which the Court

5 heavily relies. Plaintiffs raise the specter of Korematsu v. United States, 323 U.S. 214

6 (1944), and protest that dismissing their claims based upon the state secrets privilege

7 would permit a “remarkable assertion of power” by the Executive, and that any practice,

8 no matter how abusive, may be immunized from legal challenge by being labeled as 9 “counterterrorism” and “state secrets.” (Pls. Opp’n to Gov’t, at 20, 41–42.) But such a 10 claim assumes that courts simply rubber stamp the Executive’s assertion of the state 11 secrets privilege. That is not the case here. The Court has engaged in rigorous judicial 12 scrutiny of the Government’s assertion of privilege and thoroughly reviewed the public 13 and classified filings with a skeptical eye. The Court firmly believes that after careful 14 examination of all the parties’ submissions, the present action falls squarely within the 15 narrow class of cases that require dismissal of claims at the outset of the proceeding on

16 state secret grounds. Accordingly, all of Plaintiffs’ causes of action against Defendants,

17 aside from their FISA claim, are DISMISSED.

18

19

20

DATED: August 14, 2012

21

__________________________________

22

CORMAC J. CARNEY

23

UNITED STATES DISTRICT JUDGE

24

25

26

27

28

-36-

 
 Case 8:11-cv-00301-CJC-VBK Document 102 Filed 08/14/12 Page 1 of 13 Page ID #:1472

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

SOUTHERN DIVISION

11
12 YASSIR FAZAGA, ALI UDDIN 13 MALIK, YASSER ABDELRAHIM,
14
Plaintiffs,
15
vs.
16
17 FEDERAL BUREAU OF INVESTIGATION, ET AL.,
18
Defendants.
19
20

) ) Case No.: 8:11-cv-00301-CJC(VBKx) ) ) ) ) ) ) ORDER GRANTING IN PART ) DEFENDANTS’ MOTIONS TO ) DISMISS PLAINTIFFS’ FISA CLAIM ) ) ) ) ) ) )

21
22 I. INTRODUCTION & BACKGROUND

23

24

On February 22, 2011, Plaintiffs, three Muslim residents in Southern California,

25 filed a putative class action suit against the Federal Bureau of Investigation (“FBI”), the

26 United States of America, and seven FBI officers and agents (collectively, “Defendants”)

27 for claims arising from a group of counterterrorism investigations, known as “Operation

28 Flex,” conducted in Plaintiffs’ community with the help of a civilian informant, Craig

-1-

Case 8:11-cv-00301-CJC-VBK Document 102 Filed 08/14/12 Page 2 of 13 Page ID #:1473

1 Monteilh, from 2006 to 2007.1 Plaintiffs allege that, as part of Operation Flex, the FBI 2 employed Monteilh to gather information in various Islamic community centers in 3 Orange County by presenting himself as a Muslim convert. Plaintiffs allege that

4 Monteilh was paid by the FBI to collect information on Muslims under an assumed

5 identity and “infiltrate[] several mainstream mosques in Southern California.” (First

6 Amended Complaint (“FAC”) ¶ 1.) They further allege that the FBI conducted a 7 “dragnet investigation” using Monteilh to “indiscriminately collect personal information 8 on hundreds and perhaps thousands of innocent Muslim Americans in Southern 9 California” over a fourteen-month period. (Id. ¶ 2.) Through these actions, Plaintiffs 10 assert that the FBI gathered hundreds of hours of video and thousands of hours of audio

11 recordings from “the inside of mosques, homes, businesses, and associations of hundreds

12 of Muslims,” including at times where Monteilh was not present with the recording 13 device. (Id.) Plaintiffs also assert that Defendants collected hundreds of phone numbers 14 and thousands of email addresses. (Id.) Based on these factual allegations, Plaintiffs 15 assert claims for violations of the First Amendment’s Establishment and Free Exercise 16 Clauses, the Religious Freedom Restoration Act, the Fifth Amendment’s Equal 17 Protection Clause, the Privacy Act, the Fourth Amendment, the Foreign Intelligence

18 Surveillance Act (“FISA”), 50 U.S.C. § 1810, and the Federal Tort Claims Act.

19

20

The FBI denies any wrongdoing, asserting that it did not engage in unconstitutional

21 and unlawful practices. Instead, the FBI asserts that it undertook reasonably-measured

22 investigatory actions in response to credible evidence of potential terrorist activity.

23 Defendants now move to dismiss Plaintiffs’ claims. This Order addresses Defendants’

24

25 1 Plaintiffs are Yassir Fazaga, Ali Uddin Malik, and Yasser AbdelRahim. The FBI officers are Robert Mueller, Director of the FBI, and Steven M. Martinez, Assistant Director in Charge of the FBI Los
26 Angeles Division, sued in their official capacities. FBI agents are J. Stephen Tidwell, Barbara Walls, 27 Pat Rose, Kevin Armstrong, and Paul Allen, sued in their individual capacities. The Court will
hereinafter refer to the FBI, the United States, Director Mueller, and Assistant Director Martinez as the 28 “Government.” The Court will hereinafter refer to Agents Tidwell, Walls, Rose, Armstrong, and Allen
as the “Agent Defendants.”

-2-

Case 8:11-cv-00301-CJC-VBK Document 102 Filed 08/14/12 Page 3 of 13 Page ID #:1474

1 motions as to Plaintiffs’ FISA claim only.2 As to that claim, Defendants’ motions are 2 GRANTED with respect to the Government, but DENIED as to the Agent Defendants.

3
4 II. ANALYSIS

5

6

A. FISA

7

8

Plaintiffs bring their FISA claim pursuant to Section 1810 of Title 50 of the United

9 States Code. Section 1810 provides:

10

11

An aggrieved person, other than a foreign power or an agent of a foreign

power, as defined in section 1801(a) or (b)(1)(A) of this title, respectively,

12

who has been subjected to an electronic surveillance or about whom

13

information obtained by electronic surveillance of such person has been

disclosed or used in violation of section 1809 of this title shall have a cause

14

of action against any person who committed such violation and shall be

15

entitled to recover ―

16

(a) actual damages, but not less than liquidated damages of $1,000 or

17

$100 per day for each day of violation, whichever is greater;

18

(b) punitive damages; and

19
(c) reasonable attorney’s fees and other investigation and litigation

20

costs reasonably incurred.

21
22 50 U.S.C. § 1810. An aggrieved person means “a person who is the target of an 23 electronic surveillance or any other person whose communications or activities were 24 subject to electronic surveillance.” Id. § 1801(k). A person is defined as “any individual, 25 including any officer or employee of the Federal Government, or any group, entity,

26

27 2 Defendants’ motions to dismiss Plaintiffs’ other claims based on the state secrets privilege are 28 addressed in the Court’s separate, concurrently-issued Order. The factual background and procedural
history of this case are discussed in greater detail in that Order.

-3-

Case 8:11-cv-00301-CJC-VBK Document 102 Filed 08/14/12 Page 4 of 13 Page ID #:1475

1 association, corporation, or foreign power.” Id. § 1801(m). FISA defines electronic

2 surveillance as:

3

(1) the acquisition by an electronic, mechanical, or other surveillance device
4
of the contents of any wire or radio communication sent by or intended to be

5

received by a particular, known United States person who is in the United

6

States, if the contents are acquired by intentionally targeting that United

States person, under circumstances in which a person has a reasonable

7

expectation of privacy and a warrant would be required for law enforcement

8

purposes;

9

(2) the acquisition by an electronic, mechanical, or other surveillance device

10

of the contents of any wire communication to or from a person in the United

States, without the consent of any party thereto, if such acquisition occurs in

11

the United States, but does not include the acquisition of those

12

communications of computer trespassers that would be permissible under

section 2511(2)(i) of Title 18;

13

14

(3) the intentional acquisition by an electronic, mechanical, or other

surveillance device of the contents of any radio communication, under

15

circumstances in which a person has a reasonable expectation of privacy and

16

a warrant would be required for law enforcement purposes, and if both the

sender and all intended recipients are located within the United States; or

17

18

(4) the installation or use of an electronic, mechanical, or other surveillance

device in the United States for monitoring to acquire information, other than

19

from a wire or radio communication, under circumstances in which a person

20

has a reasonable expectation of privacy and a warrant would be required for

law enforcement purposes.

21

22 Id. § 1801(f). Section 1809 criminalizes two types of conduct:

23

24

A person is guilty of an offense if he intentionally—

25

(1) engages in electronic surveillance under color of law except as

26

authorized by this chapter, chapter 119, 121, or 206 of Title 18 or any

express statutory authorization that is an additional exclusive means

27

for conducting electronic surveillance under section 1812 of this

28

title; or

-4-

Case 8:11-cv-00301-CJC-VBK Document 102 Filed 08/14/12 Page 5 of 13 Page ID #:1476

(2) discloses or uses information obtained under color of law by
1
electronic surveillance, knowing or having reason to know that the

2

information was obtained through electronic surveillance not

3

authorized by this chapter, chapter 119, 121, or 206 of Title 18, or any

express statutory authorization that is an additional exclusive means

4

for conducting electronic surveillance under section 1812 of this title.

5

6 Id. § 1809(a). A person may assert, as a defense to prosecution under this section, that he

7 “was a law enforcement or investigative officer engaged in the course of his official

8 duties and the electronic surveillance was authorized by and conducted pursuant to a 9 search warrant or court order of a court of competent jurisdiction.” Id. § 1809(b).

10

11

B. Sovereign Immunity

12

13

The Government moves to dismiss Plaintiffs’ FISA claim pursuant to Federal Rule

14 of Civil Procedure Rule 12(b)(1) on the ground that the claim is barred by sovereign

15 immunity. “The United States, including its agencies and employees, can be sued only to 16 the extent that it has expressly waived its sovereign immunity.” Kaiser v. Blue Cross of 17 Cal., 347 F.3d 1107, 1117 (9th Cir. 2003) (citing United States v. Testan, 424 U.S. 392,

18 399 (1976)). “[A]ny lawsuit against an agency of the United States or against an officer

19 of the United States in his or her official capacity is considered an action against the 20 United States.” Balser v. Dep’t of Justice, Office of the U.S. Tr., 327 F.3d 903, 907 (9th

21 Cir. 2003) (citing Sierra Club v. Whitman, 268 F.3d 898, 901 (9th Cir. 2001)). “[S]uits

22 against officials of the United States . . . in their official capacity are barred if there has

23 been no waiver” of sovereign immunity. Sierra Club, 268 F.3d at 901. Absent a waiver

24 of sovereign immunity, courts have no subject matter jurisdiction over cases against the 25 government. United States v. Mitchell, 463 U.S. 206, 212 (1983). “A waiver of the

26 Federal Government’s sovereign immunity must be unequivocally expressed in statutory 27 text . . . and will not be implied.” Lane v. Pena, 518 U.S. 187, 192 (1996). Waiver of

28

-5-

Case 8:11-cv-00301-CJC-VBK Document 102 Filed 08/14/12 Page 6 of 13 Page ID #:1477

1 sovereign immunity is to be strictly construed in favor of the sovereign. Id.; United 2 States v. Nordic Village, Inc., 503 U.S. 30, 33–34 (1992).

3

4

On August 7, 2012, the Ninth Circuit held that Congress “deliberately did not

5 waive [sovereign] immunity with respect to § 1810” and thus a plaintiff may not bring a 6 suit for damages against the government under that provision. Al-Haramain Islamic 7 Found., Inc. v. Obama, __F.3d__, 2012 WL 3186088, at *8 (9th Cir. 2012). The Ninth

8 Circuit reversed the district court’s decision that Congress implicitly waived sovereign 9 immunity for Section 1810. Id. at *3–*8. The Ninth Circuit held that the district court’s 10 finding was erroneous for three reasons.

11

12

First, the Ninth Circuit concluded that the district court erred in finding an implicit

13 waiver because the Supreme Court has held that sovereign immunity cannot be waived

14 by implication. Id. at *3 (quoting Mitchell, 445 U.S. at 538). The waiver must be

15 “ ‘unequivocally expressed.’ ” Id. (quoting Mitchell, 445 U.S. at 538).

16

17

Second, the Ninth Circuit found that a conclusion that Congress intended to

18 implicitly waive sovereign immunity was unwarranted given that Congress had expressly 19 waived sovereign immunity, and permitted civil actions for damages against the United 20 States, for other sections of FISA. Id. at *4–*6 (citing 18 U.S.C. § 2712). Section 2712 21 of Title 18 of the United States Code, enacted as part of the Patriot Act, permits actions 22 against the United States to recover money damages for violations of Sections 1806(a), 23 1825(a), and 1845(a) of FISA. A person may, therefore, bring a suit against the 24 government if the government (1) uses or discloses information obtained from electronic 25 surveillance conducted pursuant to the FISA subchapter on electronic surveillance

26 without consent and without following FISA’s minimization procedures or without a

27 lawful purpose, 50 U.S.C. § 1806(a); (2) uses or discloses information from a physical

28 search conducted pursuant to the FISA subchapter on physical searches without consent

-6-

Case 8:11-cv-00301-CJC-VBK Document 102 Filed 08/14/12 Page 7 of 13 Page ID #:1478

1 and without following the minimization procedures or without a lawful purpose, id. § 2 1825(a); or (3) uses or discloses information obtained from a pen register or trap and 3 trace device installed pursuant to the FISA subchapter on such devices without following 4 the requirements of Section 1845, id. § 1845(a). Congress clearly knew how to waive

5 sovereign immunity for certain violations of FISA. It decided, in its wisdom, not to do so

6 for violations of Section 1810.

7

8

Third, the Ninth Circuit explained that “the relationship between [Section] 1809

9 and [Section] 1810” further demonstrates that Congress did not intend to permit an action

10 against the government for violations of Section 1810. Specifically, the Ninth Circuit

11 explained that because of this relationship, to impose official capacity liability under

12 Section 1810, it “must also suppose that a criminal prosecution may be maintained

13 against an office, rather than an individual, under [Section] 1809.” Id. at *7. The Ninth

14 Circuit found that imposing such “unprecedented” official capacity liability for criminal

15 violations, in essence “imposing criminal penalties against an office for the actions of the

16 officeholder,” would be “ ‘patently absurd.’ ” Id. at *7 (citing United States v. Singelton,

17 165 F.3d 1297, 1299–3000 (10th Cir. 1999)).

18

19

The Ninth Circuit’s decision in Al-Haramain is dispositive here. Sovereign

20 immunity is not waived for violations of Section 1810. Consequently, Plaintiffs’ Section

21 1810 claim against the Government is DISMISSED WITH PREJUDICE.

22

23

C. Qualified Immunity

24

25

The Agent Defendants move under Federal Rule of Civil Procedure 12(b)(6) for

26 dismissal of Plaintiffs’ FISA claim arguing that they are entitled to qualified immunity.

27 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims asserted

28 in the complaint. The issue on a motion to dismiss for failure to state a claim is not

-7-

Case 8:11-cv-00301-CJC-VBK Document 102 Filed 08/14/12 Page 8 of 13 Page ID #:1479

1 whether the claimant will ultimately prevail, but whether the claimant is entitled to offer 2 evidence to support the claims asserted. Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249

3 (9th Cir. 1997). When evaluating a Rule 12(b)(6) motion, the district court must accept

4 all material allegations in the complaint as true and construe them in the light most

5 favorable to the non-moving party. Moyo v. Gomez, 32 F.3d 1382, 1384 (9th Cir. 1994).

6 Rule 12(b)(6) is read in conjunction with Rule 8(a), which requires only a short and plain

7 statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P.

8 8(a)(2). Dismissal of a complaint for failure to state a claim is not proper where a

9 plaintiff has alleged “enough facts to state a claim to relief that is plausible on its face.”

10 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In keeping with this liberal

11 pleading standard, the district court should grant the plaintiff leave to amend if the 12 complaint can possibly be cured by additional factual allegations. Doe v. United States,

13 58 F.3d 494, 497 (9th Cir. 1995).

14

15

“Qualified immunity shields federal and state officials from money damages unless

16 a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional

17 right, and (2) that the right was ‘clearly established’ at the time of the challenged

18 conduct.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011) (quoting Harlow v.

19 Fitzgerald, 457 U.S. 800, 818 (1982)). The district court may address the two prongs in

20 any order. Pearson v. Callahan, 555 U.S. 223, 231 (2009).

21

22

The doctrine of qualified immunity was established to protect government officials

23 “from liability for civil damages insofar as their conduct does not violate any clearly

24 established statutory or constitutional rights of which a reasonable person would have 25 known.” Harlow, 457 U.S. at 818. A right is clearly established if “it would be clear to a

26 reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier

27 v. Katz, 533 U.S. 194, 202 (2001), overruled on other grounds by Pearson, 555 U.S. at

28 236–37. Law may be clearly established “notwithstanding the absence of direct

-8-

Case 8:11-cv-00301-CJC-VBK Document 102 Filed 08/14/12 Page 9 of 13 Page ID #:1480

1 precedent. . . . Otherwise, officers would escape responsibility for the most egregious 2 forms of conduct simply because there was no case on all fours prohibiting that particular 3 manifestation of unconstitutional [or unlawful] conduct.” Deorle v. Rutherford, 272 F.3d 4 1272, 1285–86 (9th Cir. 2001). “Rather, what is required is that government officials 5 have ‘fair and clear warning’ that their conduct is unlawful.” Deveraux v. Abbey, 263 6 F.3d 1070, 1075 (9th Cir. 2001) (quoting United States v. Lanier, 520 U.S. 259, 271

7 (1997)).

8

9

The Agent Defendants are not entitled to dismissal of Plaintiffs’ FISA claim based

10 on qualified immunity. Plaintiffs have pleaded sufficient facts to demonstrate that, taken

11 in the light most favorable to them, they are “aggrieved persons” and that the Agent

12 Defendants violated a clearly established statutory right created by FISA. FISA

13 constitutes clearly established law governing electronic surveillance, including that of the

14 kind engaged in by the Agent Defendants. Sections 1809 and 1810 clearly prohibit “the

15 installation or use of an electronic, mechanical, or other surveillance device in the United

16 States for monitoring to acquire information, other than from a wire or radio

17 communication, under circumstances in which a person has a reasonable expectation of

18 privacy and a warrant would be required for law enforcement purposes,” 50 U.S.C. § 19 1801(f), “under color of law except as authorized by [FISA], chapter 119, 121, or 206 of 20 Title 18 or any express statutory authorization that is an additional exclusive means for 21 conducting electronic surveillance under section 1812 [of FISA].” 50 U.S.C. § 22 1809(a)(1).

23

24

The Agent Defendants argue that they are entitled to qualified immunity because it

25 was not clearly established that Plaintiffs were “aggrieved persons.” Specifically, the

26 Agent Defendants argue that Plaintiffs did not have a clearly established reasonable

27 expectation of privacy with respect to the situations in which they were electronically

28 surveilled. The Court disagrees. FISA’s “aggrieved person” status is coextensive with

-9-

Case 8:11-cv-00301-CJC-VBK Document 102 Filed 08/14/12 Page 10 of 13 Page ID #:1481

1 standing under the Fourth Amendment for claims involving electronic surveillance. See 2 ACLU v. Nat’l Sec. Agency, 493 F.3d 644, 658 n.16 (6th Cir. 2007) (citing H.R. Rep. No.

3 95-1283, at 66 (1978)). Thus, the law regarding the reasonable expectation of privacy in

4 the Fourth Amendment context governs here and is clearly established. A person has a

5 reasonable expectation of privacy where he “has shown that ‘he seeks to preserve

6 [something] as private’ ” and his “subjective expectation of privacy is ‘one that society is

7 prepared to recognize as ‘reasonable.’ ” Smith v. Maryland, 442 U.S. 735, 740 (1979)

8 (citing Katz v. United States, 389 U.S. 347, 351, 361 (1967)). Notably, “[p]rivacy does

9 not require solitude,” United States v. Taketa, 923 F.2d 665, 673 (9th Cir. 1991), and

10 even open areas may be private places so long as they are not “so open to [others] or the

11 public that no expectation of privacy is reasonable,” O’Connor v. Ortega, 480 U.S. 709,

12 718 (1987).

13

14

As noted by Plaintiffs in their opposition:

15

The complaint sets forth detailed allegations that Defendants planted
16
electronic listening devices in one Plaintiff’s home and another’s office, that

17

their informant left recording devices to capture intimate religious discussion

at the mosque, that the informant routinely took video in mosques and in
18
private homes, and that the informant acted pursuant to broad instructions to

19

gather as much information on Muslims as possible.

20

21 (Pls. Combined Opp’n, at 64; see also FAC ¶¶ 95, 209, 127, 137, 192, 193, 202, 211.)

22 The FAC alleges that this surveillance often took place outside the presence of the

23 informant and was all conducted without a warrant. (FAC ¶¶ 86–137.) A reasonable

24 officer knows that there is a reasonable expectation of privacy in one’s home, office, and

25 in certain discrete areas of a mosque as described in the FAC, (id.). See Kyllo v. United

26 States, 533 U.S. 27 (2001) (finding a reasonable expectation of privacy exists in one’s

27 home); O’Connor v. Ortega, 480 U.S. 709 (finding that a reasonable expectation of

28 privacy can exist in a person’s work place and office); Mockaitis v. Harcleroad, 104 F.3d

-10-

Case 8:11-cv-00301-CJC-VBK Document 102 Filed 08/14/12 Page 11 of 13 Page ID #:1482

1 1522 (9th Cir. 1997) (finding a reasonable expectation of privacy arising out of religious 2 customs of confidentiality such as confession), overruled on other grounds by United 3 States v. Antoine, 318 F.3d 919 (9th Cir. 2003).3

4

5

Agent Rose argues that she is entitled to qualified immunity because Plaintiffs

6 have failed to plausibly allege that she violated FISA based on Ashcroft v. Iqbal. Again,

7 the Court disagrees. In Iqbal, the Supreme Court held that a supervisor may not be held

8 liable for a constitutional violation on the basis of respondeat superior or vicarious

9 liability, but instead, a plaintiff must allege sufficient facts to plausibly allege liability

10 based upon the supervisor’s individual conduct. Ashcroft v. Iqbal, 556 U.S. 662, 675–76

11 (2009). Contrary to Agent Rose’s assertion, Plaintiffs do allege intentional and wrongful

12 conduct on her part. The FAC alleges:

13
Upon information and belief, Defendant Pat Rose was, at all times

14

relevant to this action, employed by the FBI and acting in the scope of her

15

employment as a Special Agent. Upon information and belief, Agent Rose

was assigned to the FBI’s Santa Ana branch office, where she supervised the

16

FBI’s Orange County national security investigations and was one of the

17

direct supervisors of Agents Allen and Armstrong. Upon information and

belief, Defendant Rose was regularly apprised of the information Agents

18

Armstrong and Allen collected through Monteilh; directed the action of the

19

FBI agents on various occasions based on that information; and actively

monitored, directed, and authorized the actions of Agents Armstrong and

20

Allen and other agents at all times relevant in this action, for the purpose of

21

surveilling Plaintiffs and other putative class members because they were

Muslim. Agent Rose also sought additional authorization to expand the

22

scope of the surveillance program described [in the FAC], in an effort to

23

create a Muslim gym that the FBI would use to gather yet more information

about the class.

24

25 3 Agent Defendants also argue that they are entitled to qualified immunity because it was not clearly established that they could be liable under Section 1810 in their individual capacity, based upon the
26 Northern District’s ruling that Section 1810 imposed only official capacity liability that was reversed by 27 Al-Haramain. The Court disagrees. Regardless of the nature of the remedy permitted by Section 1810,
both that section and Section 1809 clearly establish that the conduct allegedly engaged in by the 28 individual defendants was unlawful. The qualified immunity analysis focuses on the legality of the
conduct, not the remedy available to a plaintiff or the procedure for seeking that remedy.

-11-

Case 8:11-cv-00301-CJC-VBK Document 102 Filed 08/14/12 Page 12 of 13 Page ID #:1483

1 (FAC ¶ 22.) The FAC further alleges that all of the Agent Defendants, including Agent

2 Rose, “maintained extremely close oversight and supervision of Monteilh” and “because

3 they made extensive use of the results of his surveillance, they knew in great detail the

4 nature and scope of the operation, including the methods of surveillance Monteilh used

5 and the criteria used to decide his targets, and continually authorized their ongoing use.” 6 (Id. ¶ 138.) These allegations amount to intentional, individual conduct on the part of

7 Agent Rose that, taken in the light most favorable to Plaintiffs, demonstrates a violation 8 of Section 1810 that satisfies the pleading requirements of Iqbal.

9

10

Finally, Agents Tidwell and Walls assert that Plaintiffs’ FISA claim should be

11 dismissed because it fails to allege that they engaged in the alleged surveillance activity

12 with the intent to violate the law. Dismissal on this basis is unsupported by the plain

13 language of FISA or judicial precedent interpreting Section 1809. Section 1809 imposes

14 liability for those who “intentionally engage in electronic surveillance under color of law

15 except as authorized.” 50 U.S.C. § 1809. The statute requires that Agents Tidwell and

16 Walls intended to conduct unauthorized electronic surveillance. The FAC makes clear

17 that the Agents did intentionally engage in such surveillance without authorization. More 18 is not required.4

19

20

21

22

23

24

25 ///

26 ///

27
28 4 The Court, however, declines at this time to rule on the issue of whether Plaintiffs’ FISA claim should be dismissed under the state secrets privilege, as that issue was not before the Court.

-12-

Case 8:11-cv-00301-CJC-VBK Document 102 Filed 08/14/12 Page 13 of 13 Page ID #:1484

1 III. CONCLUSION

2

3

For the foregoing reasons, with respect to Plaintiffs’ FISA Section 1810 claim, the

4 Government’s motion to dismiss is GRANTED and the Agent Defendants’ motions to

5 dismiss are DENIED.

6

7

8

DATED: August 14, 2012

9

__________________________________

10

CORMAC J. CARNEY

11

UNITED STATES DISTRICT JUDGE

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-13-

 
 Case 8:11-cv-00301-CJC-VBK Document 12 Filed 04/20/11 Page 1 of 2 Page ID #:162

1 Peter Bibring(SBN223981)

TONY WEST

2 pbibring@aclu-sc.org

Assistant Attorney General

3

ACLU FOUNDATION OF SOUTHERN CALIFORNIA

ANDRE BIROTTE, JR. United States Attorney

4 1313WestEighthStreet

ANTHONY J. COPPOLINO

5

Los Angeles, California 90017 Telephone: (213) 977-5236

tony.coppolino@usdoj.gov U.S. Department of Justice

6

Civil Division, Federal Programs Branch

7

COUNCIL ON AMERICAN-ISLAMIC RELATIONS, CALIFORNIA

20 Mass. Avenue, N.W. Washington, D.C. 20001

8

Telephone: (202) 514-4782

9

HADSELL STORMER KEENY RICHARDSON & RENICK LLP

Attorneys for Defendants

10

Sued in their Official Capacities

11 Attorney for the Plaintiffs

12

UNITED STATES DISTRICT COURT

13

CENTRAL DISTRICT OF CALIFORNIA

14 YASSIR FAZAGA et al.,

15

Plaintiffs,

16

v.

17 FEDERAL BUREAU OF

18 INVESTIGATION, et al.

19

Defendants.

CASE: SACV 11-00301-CJC(VBKx)
[PROPOSED] Order Re: Stipulation to Defer Class Certification Proceedings

20

21

22

23

24

25

26

27

28

Case 8:11-cv-00301-CJC-VBK Document 12 Filed 04/20/11 Page 2 of 2 Page ID #:163

1

ORDER

2

For good cause shown, the Court hereby ORDERS that Plaintiffs are

3 relieved from the requirement set forth in Local Rule 23-3 that a motion for class

4 certification be filed within 90 days after service of a pleading purporting to

5 commence a class action.

6

In the event that Plaintiffs’ claims against the Official Capacity Defendants

7 are not dismissed, then within 21 days after any decision by this Court denying any

8 initial dispositive motion filed in response to the Complaint by the Official

9 Capacity Defendants, or within 21 days after the deadline for such a motion has

10 passed without its filing, the Plaintiffs and Official Capacity Defendants shall

11 submit a joint report setting forth their respective positions on class certification

12 matters, including their positions concerning class discovery and the scheduling of

13 class certification proceedings.

14

15

IT IS SO ORDERED.

16

17 Dated: April 20, 2011 18 19

_______________________ Hon. Cormac J. Carney United States District Judge

20

21

22

23

24

25

26

27

28

1

 
 Case 8:11-cv-00301-CJC-VBK Document 49 Filed 09/13/11 Page 1 of 25 Page ID #:609

1 Peter Bibring (SBN 223981) 2 pbibring@aclu-sc.org
Ahilan T. Arulanantham (SBN 237841) 3 aarulanantham@aclu-sc.org 4 Jennifer L. Pasquarella (SBN 263241)
jpasquarella@aclu-sc.org 5 ACLU FOUNDATION OF SOUTHERN CALIFORNIA 6 1313 West Eighth Street
Los Angeles, California 9001 7 7 Telephone: (213) 977-9500 8 Facsimile: (213) 977-5297

9 Ameena Mirza Qazi (SBN 250404)
10 aqazi@cair.com COUNCIL ON AMERJCAN-ISLAMIC RELATIONS, CALIFORNIA
11 2180 W. Crescent Avenue, Suite F
12 Anaheim, California 92801 Telephone: (714) 776-1847
13 Facsimile: (714) 776-8340

14
Attorneys for Plaintiffs 15 Continued on next page

16
UNITED STATES DISTRJCT COURT
17

18

CENTRAL DISTRJCT OF CALIFORNIA

19

20

21 YASSIR FAZAGA, ALI UDDIN

MALIK, YASSER ABDELRAHIM, 22

23

Plaintiffs,

24

v.

CASE NO.: SA CV 11-00301 CJC (VBKx) FIRST AMENDED COMPLAINT CLASS ACTION

25
26

FEDERAL BUREAU OF INVESTIGATION; UNITED STATES OF AMERJCA; ROBERT MUELLER,

Judge: Honorable Cormac J. Carney

27 DIRECTOR OF THE FEDERAL

28

BUREAU OF INVESTIGATION, in his official ca aci ; STEVEN M.

Case 8:11-cv-00301-CJC-VBK Document 49 Filed 09/13/11 Page 2 of 25 Page ID #:610

1 MARTINEZ, ASSISTANT DIRECTOR 2 IN CHARGE, FEDERAL BUREAU OF
INVESTIGATION'S LOS ANGELES 3 DIVISION, in his official capacity; J. 4 STEPHEN TIDWELL; BARBARA
WALLS; PAT ROSE; KEVIN 5 ARMSTRONG; PAUL ALLEN; Does 6 1-20

7

Defendants.

8

9 Additional Plaintiffs' Attorneys:

10 Dan Stormer (SBN 101967) 11 dstormer@hadsellstormer.com
Joshua Piovia-Scott (SBN 22364) 12 jps@hskrr.com 13 Reem Salahi (SBN 259711)
reem@hskrr.com 14 HADSELL STORMER KEENY RICHARDSON & RENICK, LLP 15 128 N. Fair Oaks Avenue, Suite 204
Pasadena, California 91103 16 Telephone: (626) 585-9600 17 Facsimile: (626) 577-7079

18

19

20

21

22

23

24

25

26

27

28

Case 8:11-cv-00301-CJC-VBK Document 49 Filed 09/13/11 Page 3 of 25 Page ID #:611

1

PRELIMINARY STATEMENT

2

1. This case concerns an FBI-paid agent provocateur who, by

3

misrepresenting his identity, infiltrated several mainstream mosques in Southern

4

California, based on the FBI's instructions that he gather information on Muslims.

5

2. The FBI then used him to indiscriminately collect personal

6

information on hundreds and perhaps thousands of innocent Muslim Americans in

7

Southern California. Over the course of fourteen months, the agents supervising

8

this informant sent him into various Southern California mosques, and through his

9

surveillance gathered hundreds of phone numbers, thousands of email addresses,

10

hundreds of hours of video recordings that captured the interiors of mosques,

11

homes, businesses, and the associations ofhundreds ofMuslims, thousands of

12

hours of audio recording of conversations- both where he was and was not

13

present - as well as recordings of religious lectures, discussion groups, classes,

14

and other Muslim religious and cultural events occurring in mosques.

15

3. This dragnet investigation did not result in even a single conviction

16

related to counterterrorism. This is unsurprising, because the FBI did not gather

17

the information based on suspicion of criminal activity, but instead gathered the

18

information simply because the targets were Muslim.

19

4. Ironically, the operation ended when members of the Muslim

20

communities of Southern California reported the informant to the police because o

21

his violent rhetoric, and ultimately obtained a restraining order against him.

22

5. After this, the informant's identity was revealed, first in court

23

documents where the FBI and local law enforcement revealed his role, and then

24

through his own statements which were reported widely in the press. 1

25

26

1 See, e.g., Jerry Markon, Tension grows between Calif. Muslims, FBI after

27

informant infiltrates mosque, WASH. POST (Dec. 5, 2010); Gillian Flaccus, Calif.

case highlights use ofmosque informants, Assoc. PRESS (Mar. 1, 2009); Matt

28

(cont'd)

- 1-

Case 8:11-cv-00301-CJC-VBK Document 49 Filed 09/13/11 Page 4 of 25 Page ID #:612

1

6. By targeting Muslims in the Orange County and Los Angeles areas

2

for surveillance because of their religion and religious practice, the FBI's operation

3

not only undermined the trust between law enforcement and the Southern

4

California Muslim communities, it also violated the Constitution's fundamental

5

guarantee of government neutrality toward all religions.

6

7. The First Amendment guarantees that no person should be singled out

7

for different treatment by government because of his or her religion. "The First

8

Amendment mandates governmental neutrality between religion and religion. The

9

State may not adopt programs or practices which aid or oppose any religion. This

10

prohibition is absolute." Larson v. Valente, 456 U.S. 228,246 (1982) (quotations

11

and citations omitted).

12

8. By this class action, Plaintiffs seek injunctive relief for themselves

13

and the class of individuals whom Defendants subjected to surveillance and

14

gathered identifiable information about because they are Muslim. Specifically,

15

they seek an order requiring the federal government to destroy the information

16

about them which it collected through this unlawful operation. The named

17

Plaintiffs also seek damages for themselves as individuals based on the claims set

18

forth below.

19

JURISDICTION AND VENUE

20

9. This Court has subject matter jurisdiction pursuant to 28 U.S.C.

21

§ 1331. Because this lawsuit alleges violation of the United States Constitution

22

and federal statutes, it raises questions of federal law. Because those violations

23

include violations of 42 U.S.C. § 1985 and laws to protect civil rights, this Court

24

also has jurisdiction under 28 U.S.C. § 1343. Because those violations include

25

26

Coker, A look at Craig Monteilh, OC WEEKLY (Mar. 4, 2009); Teresa Watanabe

27

and Paloma Esquivel, L.A. area Muslims say FBI Surveillance has a chilling effect,

L.A. TIMES (Mar. 1, 2009).

28

-2-

Case 8:11-cv-00301-CJC-VBK Document 49 Filed 09/13/11 Page 5 of 25 Page ID #:613

1

violations ofthe Privacy Act, see 5 U.S.C. 552a(e)(7), this Court also has

2

jurisdiction under 5 U.S.C. 552a(g)(1)(D).

3

10. This Court has the authority to grant damages, declaratory and

4

injunctive relief, and any other appropriate relief pursuant to Bivens v. Six

5

Unknown Agents, 403 U.S. 388 (1971); 28 U.S.C. 1331; 28 U.S.C. § 1343; 42

6

U.S.C. § 1985; 42 U.S.C. § 2000bb; 5 U.S.C. 552a; and the Declaratory Judgment

7

Act, 28 U.S.C. §§ 2201 and 2202. A substantial, actual, and continuing

8

controversy exists between the parties, with respect to both the class's claim for

9

injunctive relief in the form of file destruction and the individual claims for

10

damages.

11

11. Venue is proper in the Central District of California under 28 U.S.C.

12

§ 1391(b) because a substantial part ofthe events or omissions giving rise to the

13

claims herein occurred in this District.

14

PAJRTIES

15

12. Plaintiff Sheikh Yassir Fazaga is a thirty-eight year-old U.S. citizen

16

born in Eritrea, who moved to the United States at age fifteen and attended high

17

school in Orange County. From about 1998 to the present, PlaintiffFazaga served

18

as an imam, or religious leader, of the Orange County Islamic Foundation, a

19

mosque in Mission Viejo, California. His duties there have included directing the

20

religious affairs of the mosque, leading prayer, and conducting educational,

21

spiritual, and recreational activities for the entire mosque community and its

22

youth. 2

23

13. Plaintiff Ali Malik is a twenty-six year-old U.S. citizen born in

24

Southern California. Malik's parents came to the United States from Pakistan

25

before he was born. From the time of his birth through the events alleged herein,

26

27

2 PlaintiffFazaga's legal name is Yassir Mohammed; but he uses the name

"Fazaga" in all his oersonal and orofessional dealine:s.

28

-

~

.a.

-

- 3-

Case 8:11-cv-00301-CJC-VBK Document 49 Filed 09/13/11 Page 6 of 25 Page ID #:614

1

Plaintiff Malik resided in and around Orange County, California. Plaintiff Malik is

2

a practicing Muslim who, from about 2004 through the events alleged herein,

3

regularly attended religious services at the Islamic Center of Irvine ("ICOI''), a

4

mosque in Irvine, California. ICOI is a mainstream mosque and one of the largest

5

mosques in Southern California, with a congregants at times numbering in the

6

thousands, including Muslims from a wide variety of national and ethnic

7

backgrounds.

8

14. PlaintiffYasser AbdelRahim, is a thirty-four year-old lawful

9

permanent resident of the United States, who emigrated from Egypt when he was

10

twenty-one years old. Plaintiff AbdelRahim first attended business school in

11

Arizona, then moved to Southern California after he obtained his degree in 1999 to

12

work in business consulting. AbdelRahim is a practicing Muslim and has attended

13

religious services regularly at ICOI since about 2005.

14

15. Defendant the Federal Bureau of Investigations (FBI) is an agency of

15

the United States government within the meaning of the Privacy Act and the

16

Federal Tort Claims Act. It maintains records on individual whom its agents have

17

investigated, including Plaintiffs and the putative class they seek to represent. The

18

FBI is sued for injunctive relief only.

19

16. Defendant Robert Mueller is the Director of the FBI. In that capacity

20

he is responsible for the direction and oversight of all operations of the FBI,

21

including the retention of records arising out of the investigations of FBI agents.

22

He is sued in his official capacity for injunctive relief only.

23

17. Defendant Steven M. Martinez is the Assistant Director In Charge of

24

the FBI's Los Angeles Field office.3 In that capacity, he is responsible for the

25

26

3 In addition to its national headquarters and various specialized facilities

27

operations, the FBI maintains 56 field offices in major cities, nearly 400 smaller

offices called resident agencies in cities and towns across the nation, and more than

28

(cont'd)

-4-

Case 8:11-cv-00301-CJC-VBK Document 49 Filed 09/13/11 Page 7 of 25 Page ID #:615

1

direction and oversight of all operations of the FBI in Los Angeles and Orange

2

Counties, including the retention of records arising out of the investigations of FBI

3

agents in his jurisdiction. He is sued in his official capacity for injunctive relief

4

only.

5

18. Upon information and belief, Defendant Kevin Armstrong was, at all

6

times relevant to this action, employed by the FBI, and acting within the scope of

7

his employment, as a Special Agent assigned to the Orange County area, and a

8

handler for Craig Monteilh. Agent Armstrong met with Monteilh repeatedly and

9

on a regular basis during the time period at issue in this lawsuit. He directed Craig

1 0

Monteilh to indiscriminately gather information on the Muslim community in

11

Orange County, and personally supervised and directed Monteilh' s surveillance

12

activities as described herein.

13

19. Upon information and belief, Defendant Paul Allen was, at all times

14

relevant to this action, employed by the FBI, and acting within the scope of his

15

employment, as a Special Agent assigned to the Orange County area, and a handler

16

for Craig Monteilh. Agent Allen met with Monteilh repeatedly and on a regular

17

basis during the time period at issue in this lawsuit. He directed Craig Monteilh to

18

indiscriminately gather information on the Muslim community in Orange County,

19

and personally supervised and directed Monteilh's surveillance activities as

20

described herein.

21

20. Defendant J. Stephen Tidwell, at all times relevant to this action, was

22

an employee of the FBI and acting within the scope ofhis employment. Defendant

23

Tidwell served as the Assistant Director in Charge of the FBI's Los Angeles Field

24

Office from August 2005 to December 2007, in which capacity he supervised

25

operations in the Central District of California. Upon information and belief,

26

27 60 international offices in U.S. embassies worldwide.
28

-5-

Case 8:11-cv-00301-CJC-VBK Document 49 Filed 09/13/11 Page 8 of 25 Page ID #:616

1

Defendant Tidwell authorized the search for an informant to go into mosques in

2

Orange County to collect information on Muslims, authorized the selection of

3

Craig Monteilh as that informant, authorized the nature and scope of the operation

4

and its targeting of Muslims, read Monteilh's notes of his activities, and authorized

5

and actively directed the actions of Agents Armstrong, Allen, Rose, Walls and

6

other agents in the handling of Monteilh at all times relevant in this action, for the

7

purpose of surveilling Plaintiffs and other putative class members because they

8

were Muslim.

9

21. Upon information and belief, Defendant Barbara Walls was, at all

10

times relevant to this action, employed by the FBI, and acting within the scope of

11

her employment as Special Agent in Charge of the Santa Ana branch office, one of

12 ten satellite offices of the FBI's Los Angeles field office, where she was one of the

13

direct supervisors of Agents Allen, Armstrong, and Rose. Upon information and

14 belief, Defendant Walls was regularly apprised ofthe information Agents

15

Armstrong and Allen collected through Monteilh; directed the action of FBI agents

16

on various instances based on that information; and actively monitored, directed,

17

and authorized the actions of Agents Armstrong and Allen and other agents at all

18

times relevant in this action, for the purpose of surveilling Plaintiffs and other

19

putative class members because they were Muslim. Eventually, she ordered that

20

Agents Armstrong and Allen cease using Monteilh as an informant because she no

21

longer trusted him.

22

22. Upon information and belief, Defendant Pat Rose was, at all times

23

relevant to this action, employed by the FBI and acting in the scope of her

24

employment as a Special Agent. Upon information and belief, Agent Rose was

25

assigned to the FBI's Santa Ana branch office, where she supervised the FBI's

26

Orange County national security investigations and was one of the direct

27 supervisors of Agents Allen and Armstrong. Upon information and belief,

28

Defendant Rose was regularly apprised of the information Agents Armstrong and

-6-

Case 8:11-cv-00301-CJC-VBK Document 49 Filed 09/13/11 Page 9 of 25 Page ID #:617

1

Allen collected through Monteilh; directed the action of FBI agents on various

2

occasions based on that information; and actively monitored, directed, and

3

authorized the actions of Agents Armstrong and Allen and other agents at all times

4

relevant in this action, for the purpose of surveilling Plaintiffs and other putative

5

class members because they were Muslim. Agent Rose also sought additional

6

authorization to expand the scope of the surveillance program described herein, in

7

an effort to create a Muslim gym that the FBI would use to gather yet more

8

information about the class.

9

23. Defendant Does 1-20 are agents of the Federal Bureau of

10

Investigation and United States Department of Justice, whose identities are not yet

11

known to Plaintiffs, who authorized, directed, and actively monitored the actions

12

alleged herein in order to engage in surveillance of the Plaintiffs and putative class

13

members because they were Muslim.

14

FACTUAL ALLEGATIONS

15

FBI Focus On Islam Since 2001

16

24. Since September 11, 2001, the FBI has focused much of its

1 7

counterterrorism efforts on broad investigations in the Muslim communities of the

18

United States. In the weeks and months following 9/11, the United States detained

19

hundreds of"suspects" across the country, the vast majority of whom were

20

Muslim. Over the next few years, the FBI engaged in a program to conduct

21

interviews ofthousands of individuals who had immigrated to the U.S. from

22

countries in which intelligence allegedly indicated al-Qaeda operated, a burden that

23

fell overwhelmingly on Muslims.4

24

25. In January 2003, the FBI ordered its field supervisors to count the

25

26

4 Homeland Security: Justice Department's Project to Interview Aliens after

27

September 11, 2001, U.S. Gen. Accounting Office, G.A.O. No. GA0-03-459

(April2003) available at http://www.gao.gov/new.items/d03459.pdf.

28

-7-

Case 8:11-cv-00301-CJC-VBK Document 49 Filed 09/13/11 Page 10 of 25 Page ID #:618

1

number of mosques and Muslims in their jurisdictions to aid in counterterrorism

2

investigations.5

3

26. Starting in 2002 and continuing through 2005, the FBI engaged in a

4

program of monitoring radiation levels across the country, including at more than

5

one hundred "Muslim sites," though officials indicated that religion was not the

6

"only criterion." AccordJng to one official, Muslim sites were picked because, in

7

the past, terrorists or people close to them had tended to live in Muslim areas or

8

attend local mosques. 6

9

27. In a 2006 briefmg to reporters, the FBI official second-in-command

10

over the National Security Branch displayed a map of the San Francisco area

11

showing where Iranian immigrants were clustered- and where, he said, an F.B.I.

12

squad was "hunting."7

13

Evolution of FBI Policies on Use of Religion in Investigation

14

28. The FBI has been accused of targeting people based on their First

15

Amendment activity before. During the 1960s and 1970s, domestic intelligence-

16

gathering activities by the FBI came under increasing scrutiny, culminating in the

17

"Church Committee," a Senate Select Committee that investigated the FBI's

18

COINTELPRO operation.

19

29. In 1976, the Church Committee wrote that "The Government has

20

21

5 Eric Lichtblau, F.B.I. Tells Offices to Count Local Muslims and Mosques, N.Y.

TIMES (Jan. 28, 2003), available at

22

http://www.nytimes.com/2003/01/28/politics/28MOSQ.html.

23

6 Kevin Bohn and Jeanne Meserve, Officials: Muslim sites subject to secret

monitoringfor radiation, C.N.N. (Dec. 24, 2005), available at

24

http://articles.cnn.com/2005-12-23/us/nuke.monitoring 1 radiation-levels-

25

radioactive-material-fbi-program; Mary Beth Sheridan, Mosques Among Sites

Monitoredfor Radiation, WASH. POST (Dec. 29, 2005).

26

7 Scott Shane and Lowell Bergman, F. B. I Struggling to Reinvent Itselfto Fight

27

Terror, N.Y. TIMES (Oct. 9, 2006), available at

28

htt.n://www.nv"' times.com/2006/1 0/1 0/us/1 Ofbi.html.

-8-

Case 8:11-cv-00301-CJC-VBK Document 49 Filed 09/13/11 Page 11 of 25 Page ID #:619

1

often undertaken the secret surveillance of citizens on the basis oftheir political

2

beliefs, even when those beliefs posed no threat of violence or illegal acts on

3

behalf of a hostile foreign power. The Government, operating primarily through

4

secret Informants ... has swept in vast amounts of information about the personal

5

lives, views, and associations of American citizens. Investigations of groups

6

deemed potentially dangerous - and even of groups suspected of associating with

7

potentially dangerous organizations - have continued for decades, despite the fact

8

that those groups did not engage in unlawful activity. Groups and individuals have

9

been harassed and disrupted because of their political views and their lifestyles.

10 Investigations have been based upon vague standards whose breadth made

11

excessive collection inevitable."8

12

30. After uncovering rampant abuses in the FBI's domestic intelligence

13 programs, the Church Committee recommended a series of reforms that were

14 ultimately adopted, including new laws to restrict domestic surveillance for

15 national security purposes under the Foreign Intelligence Surveillance Act, 50

16 U.S.C. § 1801 et seq., and guidelines issued by Attorney General Edward Levi

17 (known as "Attorney General's Guidelines") to regulate domestic intelligence-

IS gathering by the FBI.

19

31. The Levi Guidelines restricted the FBI's domestic intelligence

20

collection authorities to investigations of potential violations of federal law, and

21

limited the use of specific investigative techniques, including informants. The

22

Guidelines allowed the FBI to conduct full domestic security investigations only

23

on the basis of "specific and articulable facts giving reason to believe that an

24

25

8 Final Report ofthe Select Committee to Study Governmental Operations with

Respect to Intelligence Activities, "Book II: Intelligence Activities and the Rights

26

of Americans," at 5, U.S. Senate, 94th Cong., 2nd Sess. (Apr. 26, 1976), available

27

at http://www. aarclibrary. orglpublib/churchlreportslbook2/html/

ChurchB2 0009a.htm.

28

-9-

Case 8:11-cv-00301-CJC-VBK Document 49 Filed 09/13/11 Page 12 of 25 Page ID #:620

1

individual or group is or may be engaged in activities which involve the use of

2

force or violence and which involve or will involve the violation of federal law..."9

3

More limited Preliminary Investigations could be authorized for 90 days based on

4

receipt of "allegations or other information that an individual or group is or may

5

be engaged in activities which involve the use of force or violence and which

6

involve or will involve the violation of federal law," but only to determine whether

7

there is a sufficient factual basis for opening a full investigation. 10

8

32. In 2002, Attorney General John Ashcroft revised the Guidelines for

9

General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations,

1 0

respectively, significantly reducing or eliminating the requirement of a factual

11

basis to believe federal crimes would be committed before the FBI could initiate

12

investigations.11 Significant changes to the General Crimes guidelines included

13

expanding the duration and type of investigative techniques that could be utilized

14

in preliminary investigations and creating new authorities for the FBI to

15

proactively conduct internet and commercial database searches and attend public

16

places and events for the purpose of detecting or preventing terrorist activities, all

17

without any factual basis or allegation indicating a possible violation of federal

18

law. Attorney General Ashcroft said terrorism prevention was the key objective of

19

these new Guidelines, arguing that "Our philosophy today is not to wait and sift

20

through the rubble following a terrorist attack. Rather, the FBI must intervene early

21

22

9 FBI Statutory Charter: Hearings Before the Senate Committee on the Judiciary,

23

95th Cong. pt. 1, p. 22 (1978). 10 J,d., at 21.

24

11 Attorney General's Guidelines for General Crimes, Racketeering Enterprise and

25

Terrorism Enterprise Investigations, (May 2002), available at: http://www.fas.org/irp/agency/doj/fbi/generalcrimes2.pdf and, Attorney General's

26

Guidelines for National Security Investigations and Foreign Intelligence

27

Collection, (Oct. 2003), available at:

httn://www.fas.ondiro/agencv/doi/fbi/nsiguidelines.pdf

28

- 10-

Case 8:11-cv-00301-CJC-VBK Document 49 Filed 09/13/11 Page 13 of 25 Page ID #:621

1

and investigate aggressively where information exists suggesting the possibility of

2

terrorism, so as to prevent acts ofterrorism. The new guidelines advance this

3

strategy of prevention by strengthening investigative authority at the early stage of

4

preliminary inquiries. Also, even absent specific investigative predicates, FBI

5

agents under the new guidelines are empowered to scour public sources for

6

information on future terrorist threats. "12

7

33. In June 2003 the Department of Justice issued "Guidance on the Use

8

of Race by Federal Law Enforcement Agencies," purporting to ban the use of

9

racial or ethnic profiling.13 This Guidance explicitly failed to include religion as an

1 0

attribute that could not be used by federal law enforcement officials in making law

11

enforcement decisions. In addition, the Guidance contained broad exemptions for

12

the use of racial profiling in national security and border integrity investigations. 14

13

34. In October 2003 Attorney General Ashcroft revised the Guidelines

14

for FBI National Security Investigations and Foreign Intelligence Collection, to

15

authorize the "proactive collection of information concerning threats to the

16

national security, including information on individuals, groups and organizations

17

ofpossible investigative interest, and information on possible targets of

18

international terrorist activities or other national security threats."15 These

19

Guidelines authorized the FBI to conduct ''threat assessments" without opening

20

21

12 Remarks of Attorney General John Ashcroft, Attorney General Guidelines

May 30, 2002, at:

22

http://www.justice.gov/archive/ag/speeches/2002/53002agpreparedremarks.htm

23

13 Department of Justice Civil Rights Division, "Guidance Regarding the Use of

Race by Federal Law Enforcement Authorities, (June 2003), available at:

24

http://www.scribd.com/doc/22092319/DOJ-Guidance-Regarding-the-Use-of-Race-

25

by-Federal-Law-Enforcement-Agencies-June-2003. 14 !d.

26

15 Attorney General Guidelines for FBI National Security Investigations and

27

Foreign Intelligence Collection (Oct. 2003), available at:

htto://www.fas.ondim/a2:encv/do1/fbilnsi2:uidelines.odf

28

- 11-

Case 8:11-cv-00301-CJC-VBK Document 49 Filed 09/13/11 Page 14 of 25 Page ID #:622

1

preliminary or full investigations - in other words without the required factual

2

basis to justifY such investigations. 16

3

35. The combined effect of these Guidelines and Guidance was to

4

authorize the FBI to engage in intrusive investigations of First Amendment

5

protected activity, and specifically religious practices, without any factual basis to

6

believe any criminal violations or threat to the national security existed.

7

36. In 2008, Attorney General Mukasey revised the guidelines further,

8

explicitly eliminating the need for any factual predicate before FBI agents are

9

allowed to conduct a new category of investigation called "assessments." The

10

2008 revisions allow FBI agents to use an array of intrusive investigative

11

techniques during assessments, including physical surveillance, recruiting and

12

tasking informants, and pre-textual interviews by FBI agents acting in ruse. In

13

response, the FBI revised its internal policy, publishing the FBI's Domestic

14

Intelligence and Operations Guides ("DIOG") in December 2008. 17 The DIOG

15

only requires an "authorized purpose" to conduct an assessment, which is defined

16

broadly as "a national security, criminal or foreign intelligence collection

17

purpose."18 Requiring only an authorized purpose rather than a factual predicate

18

means that the authority to conduct investigations in this category is based on the

19

subjective intent of the agent, rather than any factual information regarding the

20

potential subjects ofthe assessment establishing suspicion of wrongdoing.

21

Moreover, the DIOG authorizes FBI headquarters and field offices to conduct

22

"Domain Management" assessments to "identifY locations of concentrated ethnic

23

communities in the Field Office's domain" and to collect, analyze and map racial

24

25

16 .ld., at 3.

26

17 Federal Bureau of Investigation Domestic Investigations and Operations Guide,

27

(Dec. 2008), available at: http://www.muslimadvocates.org/DIOGs ptl.pdf 18 DIOG p. 21.

28

- 12-

Case 8:11-cv-00301-CJC-VBK Document 49 Filed 09/13/11 Page 15 of 25 Page ID #:623

1

and ethnic "behaviors," "cultural traditions," and "life style characteristics" in local

2

communities. FBI Director Robert Mueller issued a broad mandate for FBI

3

offices to "know your domain," which meant "understanding every inch of a given

4

community-its geography, its populations, its economy, and its vulnerabilities."19

5

Domain Management assessments appear to be mandated as a matter of course,

6

and require no specific threat or criminal predicate to justify the collection of

7

information regarding the makeup of American communities.

8

37. Upon information and belief, Defendants operated under the

9

principles set forth in the revised Mukasey Guidelines and DIOGs even before the

10

Attorney General formally issued them. For instance, a 201 0 report by the

11

Department of Justice Inspector General revealed that from 2002 to 2006 the FBI

12

engaged in a number of investigations of domestic advocacy groups based on

13

"factually weak" or "speculative" predication.20 The Inspector General (IG)

14

determined many of the investigations were opened based upon the FBI agents'

15

mere speculation that the individuals or groups might commit some federal crime

16

in the future. The IG determined that most of these investigations did not violate

17

the 2002 Attorney General's Guidelines in effect at the time because all that was

18

required to initiate a preliminary inquiry was "information indicating the

19

possibility of a federal crime," which illustrated ''the broad scope of the FBI's

20

authority under the Attorney General's Guidelines to open preliminary inquiries

21

based on extremely limited information, including information about the First

22

23

24

19 Robert Mueller, Speech to the International Association of Chiefs of Police, San

25

Diego, CA California, Nov. 10, 2008, at: http://www.fbi.gov/news/speeches/using-

intelligence-to-protect-our-communities (last visited Sept. 13, 2011 ).

26

20 Department of Justice Inspector General Review of FBI's Investigations of

27

Certain Advocacy Groups (Sept 2010) (hereinafter "IG Report"):

httn://www.iustice.gov/oig/snecial/s1009r.pdf(last visited Sept. 13, 2011).

28

- 13 -

Case 8:11-cv-00301-CJC-VBK Document 49 Filed 09/13/11 Page 16 of 25 Page ID #:624

1

Amendment expressions of subjects."21 Moreover, the IG noted that while the

2

FBI's collection and retention of First Amendment material in these cases often

3

violated the 2002 Guidelines, it would not have violated the revised 2008

4

Guidelines: "Therefore, some of the violations of policy we found in this review

5

would not be violations ifthey occurred today."22 Additionally, a 2006 New York

6

Times report indicated that FBI Associate Executive Assistant Director Phil Mudd

7

was "pitching" a vague domestic intelligence program called "Domain

8

Management," which vaguely implied "ethnic targeting."23

9

38. Upon information and belief, trainings offered by the FBI have also

10 reflected broad generalizations about Muslims supporting the view that Islam and

11

those who practice it inherently condone violence and should be regarded with

12 suspicion. As recently as 2009, the FBI training for newly recruited agents

13

included a power-point presentation that makes gross generalizations about Islam

14 and Muslims. The presentation included slide entitled "Islam 101" that stated

15

Islam "transforms country's culture into 7th century Arabians ways" and claimed

16 that "it is characteristic ofthe Arabic mind to be swayed more by words than ideas

17 and more by ideas than by facts." Of the eight books that the training listed as

18 "recommended reading," at least three of them have been widely criticized as

19 setting forth stereotypes about Muslims and Islam. Two listed were by Robert

20

Spencer, founder of the group "Stop the Islamization of America," including his

21

book, "The Politically Incorrect Guide to Islam," which asserts on its cover

22

(reproduced in the training's slides) that "Islam teaches that Muslims must wage

23

war to impose Islamic law on non-Muslim states" and "American Muslim groups

24

25

21 IG Report at 87. 22 IG Report at 189.

26

23 Scott Shane and Lowell Bergman, "FBI Struggling to Reinvent Itself to Fight

27

Terror," NY Times (Oct. 10, 2006), available at

htto://www.nvtimes.com/2006/10/10/us/10tbi.html (last visited Sept. 13, 2011).

28

- 14-

Case 8:11-cv-00301-CJC-VBK Document 49 Filed 09/13/11 Page 17 of 25 Page ID #:625

1

are engaged in a huge cover-up of Islamic doctrine and history," and has chapters

2

titled "The Qur'an: Book of War," "Islam: Religion of War" and "Islamic Law:

3

Lie, Steal and Kill," in which it argues that Islam condones violence, criminality,

4

and terrorism. 24

5

39. Upon information and belief, William Gawthrop, an FBI senior

6

intelligence analyst who has presented and continues to present trainings at

7

conferences to local law enforcement, has offered trainings or training materials on

8

the "Sources and Patterns of Terrorism in Islamic Law" in which he takes selected

9

quotes from Quran and other Islamic texts out of context to teach that Islam

10

inherently mandates violent action against non-Muslims.

11

FBI Investigation of Muslims in Orange County, California

12

40. Approximately 500,000 Muslims live in Southern California, more

13

than 120,000 of them in Orange County, making the area home to the second-

14

largest population of Muslims in the United States.

15

41. The FBI has surveilled Muslims in Southern California and Orange

16

County for at least several years.

17

42. In about late 2001 or 2002, the FBI approached at least one Muslim

18

leader asking who the Muslim leaders in the Southern California area are and for a

19

list of mosques.

20

43. In May 2006, Defendant Rose, a supervisor of the FBI's Orange

21

County counterterrorism operations, spoke to the Pacific Club in Irvine about the

22

FBI's counterterrorism efforts. There, she stated that "[t]here are a lot of

23

24

25

24 Spencer Ackerman, FBI 'Islam 1OJ' Guide Depicted Muslims as 7th-Century

26

Simpletons, WIRED (July 27, 2011), available at

27

http://www.wired.com/dangerroom/20 11/07/fbi-islam-1 01-guide (last visited Sept.

13, 2011).

28

- 15 -

Case 8:11-cv-00301-CJC-VBK Document 49 Filed 09/13/11 Page 18 of 25 Page ID #:626

1

individuals of interest right here in Orange County."25 She described recent efforts

2

the FBI had taken in the region: planting bugs and closed-circuit TV cameras,

3

examining computer use and email, and establishing units on both foreigners and

4

domestic suspects. She indicated that the FBI frequently received calls from

5

people who wanted to tell them about situations like a Muslim neighbor who is

6

changing his license plates or someone who has an apartment with only a mattress

7

and five computers, stating, "I can't tell you how many" tips like that paid off.

8

When asked whether citizens should be worried about activist Muslim students at

9

University of California at Irvine, Rose characterized that as a "tough question,"

10

but indicated the FBI was aware of large numbers of Muslim students at UCI and

11

the University of Southern California. "We live in Irvine. I can't tell you how

12

many subjects' names come up, and they live right down the street from me," she

13

stated. "I think we need to be concerned with everybody, including our next-door

14

neighbor. " 26

15

44. In 2006 and 2007, authorities arrested reserve officers who worked at

16

the Strategic Technical Operations Center, an intelligence unit at Camp Pendleton,

17

for stealing classified intelligence documents and providing them to local law

18

enforcement. According to reports, the theft ring had operated since 2001, and the

19

documents seized from the participants included more than 100 FBI and Defense

20

Department files, including documents establishing the existence of programs to

21

surveil Muslim communities and mosques in Southern California.27

22

23

25 Frank Mickadeit, Feds warn O.C. ofterror lurking 'down the street', THE

24

ORANGE COUNTY REGISTER (May 25, 2005), available at

25

http://www.ocregister.com/news/fbi-194882-county-orange.html (last visited Sept.

13, 2011).

26

26 !d.

27

27 Rick Rogers, Records detail securityfailure in base file theft, SAN DIEGO UNION-

TRIBUNE (May 22, 2008), available at http://www.signonsandiego.com/

28

(cont'd)

- 16-

Case 8:11-cv-00301-CJC-VBK Document 49 Filed 09/13/11 Page 19 of 25 Page ID #:627

1

45. Documents obtained by the ACLU of Southern California via the

2

Freedom of Information Act show that the FBI has collected information about the

3

membership of the Shura Council (an association of mosques in the Southern

4

California area), as well as information about activities or events organized at or by

5

mosques or Muslim organizations - including individuals handing out flyers for

6

fundraising, events on political issues such as the war in Iraq or immigration

7

reform, and a wide variety of fundraising efforts.

8

46. The FBI has sought and continues to seek interviews of hundreds of

9

people in the Southern California Muslim community, often by sending FBI agents

10

to appear unannounced at the homes or workplaces of people to request an

11

interview. During these interviews, FBI agents have often questioned interviewees

12

about religious practices that have no discernible relationship to criminal activity,

13

such as what mosque interviewees attend, how many times a day they pray, who

14

the imam of their mosque is, or what they think of particular religious scholars.

15

Monteilh's Role in the FBI's Investigation of Muslims

16

47. In the face of substantial evidence of the FBI's particular focus on

17

investigating Muslims, in June 2006, Los Angeles FBI Assistant Director Stephen

18

Tidwell attended a forum for the Muslim community at the Islamic Center of

19

Irvine ("ICOl"), where he assured an audience of about two hundred people that

20

the FBI would enter mosques only openly to outreach to the community and would

21

not send covert informants into mosques for the purpose of monitoring the Muslim

22

community. 28

23

24

uniontrib/20080522/news 1n22theft.html (last visited Sept 13, 2011).

25

28 At some point during the spring of2007, Agents Armstrong and Allen told

Monteilh that the Assistant Director in Charge of the FBI's Los Angeles Field

26

Office had told the Muslim community that there would be no undercover

27

informants placed in mosques at a meeting held only about a month or so before Monteilh had publicly "converted," on their instructions, at the ICOI mosque.

28

(cont'd)

- 17-

Case 8:11-cv-00301-CJC-VBK Document 49 Filed 09/13/11 Page 20 of 25 Page ID #:628

1

48. At some time prior to July 2006, the FBI hired Craig Monteilh to

2

become a paid informant for them to covertly gather information about Muslims in

3

the Irvine area.

4

49. In about July 2006, Monteilh requested a meeting with the imam of

5

the Islamic Center of Irvine ("ICOI''). Monteilh told the imam that he was of

6

French and Syrian descent, and that he wanted to embrace his roots by formally

7

converting to Islam. The following Friday, Monteilh attended thejummah prayer

8

(the Friday afternoon prayer that is the most important service of the week), where

9

he went before the congregation of hundreds and made a public declaration of his

10

Muslim faith. This declaration, known as shahadah, is one of the five pillars of

11

Islam. After this, Monteilh began going to ICOI on a daily basis, often attending

12

multiple prayers a day. About a week later, he began using the Muslim name

13

Farouk al-Aziz.

14

50. After taking shahadah, Monteilh attended prayers at ICOI on a daily

15

basis. He attended prayers at mosque multiple times per day, and was often

16

waiting for the mosque to open before dawn prayers at about 5 a.m. He also

17

attended classes and special events. He primarily attended ICOI, but also went

18

with some regularity to about five of the other largest mosques in Orange County.

19

51. Congregants at ICOI generally welcomed Monteilh. People

20

introduced themselves, spoke with him about his conversion and their faith, and

21

offered to help him learn about Islam and Muslims in America. Various

22

congregants offered help by buying him books on Islam, talked with him about the

23

tenets ofthe religion, and showed him the movements ofprayers. Congregants

24

invited him to have meals or tea outside of the mosque to help welcome him to the

25

26

They told him that at the time Tidwell made this statement, they had already been

27

looking for someone to send into the mosques, and that Tidwell had approved

recruitment of an informant.

28

- 18-

Case 8:11-cv-00301-CJC-VBK Document 49 Filed 09/13/11 Page 21 of 25 Page ID #:629

1

mosque's community and discuss questions he might have.

2

52. After several months, Monteilh began wearing traditional Muslim

3

robes and skull caps both at mosque and in public, in place of his ''western"

4

clothes.

5

53. After Monteilh had attended ICOI for some time, Muslim community

6

leaders began to hear concerns voiced by the congregants about Monteilh' s

7

behavior. Monteilh engaged people in conversations in which he aggressively

8

probed their views on religion and American foreign policy. Soon leaders began

9

hearing that he was asking people's opinions on jihad and its meaning in Islam,

10

and that he was resisting their claims that Islam did not condone terrorism.

11

54. Among the many people Monteilh met during his time as an FBI

12

informant were Plaintiffs Fazaga, Malik, and AbdelRahim.

13

Plaintiff Sheikh Yassir Fazaga

14

55. Plaintiff Sheikh Yassir Fazaga is a thirty-eight year-old U.S. citizen

15

born in Eritrea, who has lived here since he was a teenager. He attended high

16

school in Orange County. Sheikh Fazaga has an undergraduate degree in Islamic

17

Studies from the Institute of Islamic and Arabic Sciences in Virginia and a masters

18

degree in marriage and family counseling from the California State University of

19

Long Beach, and has taken coursework toward a masters degree in Christian

20

Theology at Loyola Marymount University. From about 1998 to the present,

21

Sheikh Fazaga has served as an imam of the Orange County Islamic Foundation

22

(OCIF), a mosque in Mission Viejo, California. His duties there have included

23

directing the religious affairs of the mosque, leading prayer, and conducting

24

educational, spiritual, and recreational activities for the entire mosque community

25

and its youth.

26

56. Sheikh Fazaga earned a national reputation for his contemporary

27

American teaching oflslam. He has spoken at numerous conferences, colleges,

28

and other fora both in the United States and abroad on the topics of Islam and the

- 19-

Case 8:11-cv-00301-CJC-VBK Document 49 Filed 09/13/11 Page 22 of 25 Page ID #:630

1

American Muslim. In 2007, he traveled to Romania at the invitation and expense

2

of the U.S. State Department to speak on terrorism, radicalism and extremism.

3

He has also been interviewed for print, television and radio media, including for

4

NBC's Today show on spirituality in America and for a New York Times article

5

on American imams in which he was featured. 29

6

57. Over the years, Sheikh Fazaga's mosque conducted a number of

7

events in conjunction with various other mosques in the area, including ICOI.

8

Sheikh Fazaga was, and still is, concerned about the erosion of civil rights for

9

people in the Muslim community, and he often took actions to advocate on behalf

10 of that issue.

11

58. On one occasion in early 2006 he attended one such event, which

12

Defendant Stephen Tidwell, Assistant Director in Charge of the Los Angeles FBI

13

Field Office, also attended. At the event, Fazaga asked questions to Tidwell

14

concerning the FBI's use of informants in mosques.

15

59. Shortly afterward, Sheikh Fazaga came into contact with Craig

16

Monteilh, because Monteilh came to attend prayers and other events at his mosque,

17

OCIF, starting in approximately 2006.

18

60. Some time after Monteilh began attending his mosque, Sheikh Fazaga

19

hosted a famous Islamic speaker named YusufEstes at his mosque. Estes is a

20

former National Muslim Chaplain for the United States Bureau of Prisons, and was

21

a Delegate to the United Nations World Peace Conference for Religious Leaders

22

several years before being invited to speak at the OCIF.

23

61. A number of Sheikh Fazaga's congregants, including Monteilh,

24

attended the lecture.

25

26

29 See Neil MacFarquhar, A Growing Demandfor the Rare American Imam, N.Y.

27

Times (June 1, 2007), available at htto://www.nvtimes.com/2007/06/01/us/01imamJtml (last visited Sept. 13, 2011).

28

-20-

Case 8:11-cv-00301-CJC-VBK Document 49 Filed 09/13/11 Page 23 of 25 Page ID #:631

1

62. Several months after Monteilh first began attending events at OCIF,

2

another member of the OCIF community formally introduced Fazaga to Monteilh.

3

63. After Monteilh's role as an FBI informant became publicly known in

4

February 2009, a number of Sheikh Fazaga's congregants expressed their dismay

5

to him, because Monteilh had spent a considerable amount of time at the OCIF.

6

64. Sheikh Fazaga had to spend considerable time counseling his

7

congregants who were afraid that they were being targeted for FBI surveillance

8

because of their faith. He often conducted this counseling away from the mosque

9

and in person, rather than over the telephone, because of his congregants' fear of

1 0

surveillance.

11

65. Sheikh Fazaga also observed the trust within and cohesion of his

12

congregation, and of other Muslim communities in Southern California, to be

13

significantly damaged, and that this damage directly undermined the Islamic

14

practice ofjama 'ah, or worship in a congregation. In part because of this, he

15

devoted two whole sermons to addressing the fears of the congregation about

16

surveillance, rather than addressing religious subjects.

17

Plaintiff Ali Uddin Malik

18

66. Plaintiff Malik grew up in Orange County, California. When Malik

19

was growing up, his family were strong supporters of the Republican Party. Malik

20

started a young Republicans club at his high school. During high school, Malik

21

aspired to work for the U.S. State Department or elsewhere in government.

22

67. PlaintiffMalik attended the University of California, Irvine ("UCI")

23

from about 2007 to 2009. While at Irvine, Malik co-founded the Olive Tree

24

Initiative, a peace-building program through which a culturally and religiously

25

diverse group of UCI students take joint factfinding trips to Israel and Palestine to

26

better understand the Israel-Palestine conflict and report on their findings to the

27

UCI community. Malik and the other founders were recognized for their work

28

with the University of California President's Award for Outstanding Student

- 21 -

Case 8:11-cv-00301-CJC-VBK Document 49 Filed 09/13/11 Page 24 of 25 Page ID #:632

1

Leadership, UCI Chancellor's Living Our Values Award, and recognition by the

2

Orange County Human Relations Commission and the U.S. State Department.

3

68. When Malik was about twenty years old, he developed an interest in

4

religion. His family had always attended the mosque, but he started attending

5

more regularly and trying to study Islam with more seriousness. Malik began

6

wearing traditional robes and head covering when he went to the mosque to pray.

7

He also grew a full, long beard in a traditional fashion. Because Islam encourages

8

Muslims to follow the "sunnah" or practices of the Prophet Muhammad,who had a

9

beard and required his followers to grow beards, observant Muslim men commonly

10 grow their beards as a part of their religious practice and as a form of modesty,

11

Most observant Muslim men in Orange County wear beards of some sort, and

12

many or most try to grow long beards at some point in their lives. Similarly, many

13

Muslim men wear traditional clothes to pray as part of their religious practice, as a

14

form of modesty. As such, an emulation of the practices of Muhammad is also

15

"sunnah." Malik also found that wearing his clothes and beard in this way helped

16

serve as a reminder of his faith.

1 7

69. In about summer 2006, as part of his efforts to study Islam more

18

seriously, Malik attended a six-week summer course on Islam at Dar al-Mustafa, a

19

seminary in Yemen. Islam emphasizes the importance of gaining religious

20

knowledge, and encourages its adherents to seek knowledge, so much so that for

21

Muslims gaining religious knowledge is a faith practice in and of itself. Dar al-

22

Mustafa is a mainstream religious school whose leaders are internationally known

23

in the Muslim community for advocating justice, equality, and peaceful co-

24

existence between religious groups, and have been active in interfaith efforts in

25

these areas with religious leaders of other faiths. Upon information and belief, the

26

school and its leaders enjoyed a similar reputation with the United States

27

government and the FBI. At the time Malik attended the summer course, both

28

Yemen and Dar al-Mustafa were popular places for American Muslims who

-22-

Case 8:11-cv-00301-CJC-VBK Document 49 Filed 09/13/11 Page 25 of 25 Page ID #:633

1

wanted to pursue Arabic language or religious studies abroad for a variety of

2

reasons: Southern Yemen, where Dar al-Mustafa is located, was known for its

3

spiritual Sufi religious scholarship, for having a clear and eloquent form of the

4

Arabic language, and for being scenic and affordable, if slightly rustic. Plaintiff

5

Malik attended ICOI and was present when Monteilh took shahadah in about July

6

2006. Plaintiff Malik, along with many other congregants, approached Monteilh

7

after he took shahadah, offering his well-wishes and assistance.

8

70. In about August 2006, the imam at ICOI asked Plaintiff Malik to

9

teach Monteilh how to pray and to guide him through the basics of Islam.

1 0

71. At the imam's request, Plaintiff Malik approached Monteilh. Malik

11

talked with Monteilh about the basics of Islam, including the basic tenets, how to

12 pray, and the development of faith. Monteilh asked for Malik's cell phone number

13

and email address, which Malik provided. He tried to offer Monteilh support and

14 welcome him in the community, and talked about inviting him over to his family's

15

house for dinner.

16

72. To help Monteilh learn about Islam, Plaintiff Malik gave him a very

1 7

basic book on the religion. The book is commonly used to teach Sunday school

18

classes to children, and Malik knew that his father had taught Sunday school and

19 had used the same book.

20

73. Monteilh talked frequently with Malik at the mosque. He also

21

suggested that they talk at a nearby gym, which they did in part because Monteilh

22 worked out there. Shortly after their meeting, Monteilh began asking Malik things

23

that made Malik uncomfortable. At one point Monteilh asked Plaintiff Malik what

24 would happen if someone went up to the imam at ICOI and told him they wanted

25

to blow themselves up. Plaintiff Malik replied that the imam would think this

26

person was crazy. Monteilh persisted, and asked Plaintiff Malik if there were other

27

imams in the area that would respond to someone who wanted to blow themselves

28

up. Plaintiff Malik told Monteilh that there are no such imams or mosques in

-23-

 
 Case 8:11-cv-00301-CJC-VBK Document 49-1 Filed 09/13/11 Page 1 of 25 Page ID #:634

1

Southern California as far as he knew.

2

74. On another occasion, Monteilh asked Malik about jihad, citing

3

specific pages in the children's book Malik had given him that mentioned jihad.

4

When Malik answered that jihad meant a "struggle," and that the concept referred

5

to the spiritual struggle to purify oneself, Monteilh pressed him about whether it

6

meant physical violence, and resisted Malik's answer that it did not.

7

75. These conversations deeply concerned Malik and made him very

8

uncomfortable around Monteilh. Malik thought that Monteilh had strange ideas

9

about Islam from movies or media, and urged him to go talk to the imam so that

10

the imam could guide him.

11

76. When Monteilh persisted in talking with Malik about his violent

12

ideas, Malik began trying to avoid Monteilh. He would avoid answering or

13

returning Monteith's calls, although Monteilh called repeatedly. Malik also began

14 trying to go to the gym at times Monteilh did not attend.

15

77. Malik also noticed that Monteilh spoke with many others at the

16

mosque. For example, Malik occasionally saw Monteilh praying near meetings of

1 7

a youth group Malik attended in the mosque's prayer hall. Malik noticed on

18

several occasions that when Monteilh would pray near the group, he would leave

19

his belongings in the prayer hall while he went elsewhere.

20

78. Finally, Malik stopped attending the mosque altogether because

21

Monteilh was there so often. Malik also stopped attending the mosque in Tustin

22

because he heard that Monteilh had also been seen at that mosque. Malik resumed

23

attending ICOI only after Monteilh began approaching other people and speaking

24

to him less often. Even since returning to the mosque, Malik attends less often

25

than he had before he had contact with Monteilh.

26

79. In about spring 2007, Monteilh asked Malik about studying Islam

27

abroad. Malik suggested that Monteilh look into the seminary where Malik had

28

studied, Dar al-Mustafa, which Malik had enjoyed very much.

-24-

Case 8:11-cv-00301-CJC-VBK Document 49-1 Filed 09/13/11 Page 2 of 25 Page ID #:635

1

Plaintiff Vasser AbdelRahim

2

80. Plaintiff AbdelRahim was another victim ofMonteilh's dragnet

3

surveillance of Muslims in Irvine. AbdelRahim started attending ICOI in about

4

2005. Shortly afterwards, he rented a room in a large house where a friend he met

5

through the mosque lived. Over the next few months, two other mutual friends

6

from ICOI, and AbdelRahim's brother, moved into the house as other roommates

7

left. All five of the housemates were, like AbdelRahim, of Egyptian origin.

8

81. In about July 2006, one of AbdelRahim's roommates told him about a

9

guy who had taken shahadah at the mosque. The following Saturday, they saw

1 0

Monteilh and introduced themselves, offering to help him learn about Islam if he

11

had any questions. Monteilh said that he appreciated it and took their phone

12

numbers.

13

82. Shortly afterward, Monteilh called AbdelRahim and began socializing

14

with AbdelRahim and his roommates. They talked, went out to get coffee, and

15

soon AbdelRahim invited Monteilh to their house for iftar (a meal eaten during

16

Ramadan). Monteilh began to spend time with them at their house watching TV or

17

playing X-box. AbdelRahim and his roommates also tried to help Monteilh feel

18

welcome by introducing him to other people in the Muslim community.

19

83. Initially, Monteilh talked with AbdelRahim and his roommates about

20

a variety of innocuous topics -not only about Islam, but about politics, world

21

affairs, movies, and sports. At some point, however, Monteilh began asking

22

questions about jihad, again with a focus on violence. AbdelRahim found this

23

odd, and responded that Monteilh should not concern himself with that, but

24

instead should concentrate on developing his faith, and should talk to the imam at

25

ICOI if he had questions about the meaning ofjihad. However, Monteilh

26

persisted in raising the subject. AbdelRahim eventually became worried that

27

Monteilh had asked him several times about jihad, particularly when he heard

28

from several of his friends at the mosque that Monteilh had made similar inquiries

-25-

Case 8:11-cv-00301-CJC-VBK Document 49-1 Filed 09/13/11 Page 3 of 25 Page ID #:636

1

with them. AbdelRahim also noticed that Monteilh guided conversations to

2

political subjects like the wars in Iraq and Afghanistan, and would say

3

inflammatory things that seemed aimed at eliciting agreement or angry responses

4

from others.

5

84. Shortly afterward, a friend of AbdelRahim reported to him that

6

Monteilh had asked the friend to coffee to discuss a personal issue, but then

7

started asking particularly pointed questions about jihad. Upon hearing this,

8

AbdelRahim confronted Monteilh. AbdelRahim told Monteilh that if someone

9

was teaching him this view ofjihad, then he needed to find another teacher.

10

85. After this conversation, AbdelRahim stopped speaking with Monteilh

11

or returning his calls. Over the next several months, AbdelRahim noticed that

12 Monteilh was spending time with different people at the mosque, and AbdelRahim

13 warned a few of them about his concerns regarding Monteilh.

14

The FBI's "Dragnet" Approach

15

86. The interactions between Monteilh and Plaintiffs Fazaga, Malik, and

16 AbdelRahim were part of a broader pattern of dragnet surveillance that Monteilh

17 engaged in at the behest ofhis FBI handlers. Two FBI Special Agents instructed

18

Monteilh to gather information on Muslims in general, and instructed him to adopt

19

strategies of information-gathering and surveillance that ensured that he would

20

obtain that information in an indiscriminate manner, such that Plaintiffs and

21

numerous other people were surveilled solely due to their religion. They also

22 provided Monteilh with the tools needed to conduct this indiscriminate

23

surveillance, including sophisticated audio and video recording devices. Again,

24 their instructions ensured that the surveillance tools would target people solely due

25

to their religion.

26

87. Monteith's handlers at the FBI were FBI Special Agent Kevin

27 Armstrong and FBI Special Agent Paul Allen. Agents Armstrong and Allen

28

supervised all ofMonteilh's work with the FBI. The FBI paid Monteilh for the

-26-

Case 8:11-cv-00301-CJC-VBK Document 49-1 Filed 09/13/11 Page 4 of 25 Page ID #:637

1

duration of his work for Agents Armstrong and Allen, in amounts ranging from

2

about $6,000 to over $11,000 per month.

3

88. Agents Armstrong and Allen told Monteilh that the FBI used the

4

name "Operation Flex" for the surveillance program that used him, and used that

5

term repeatedly. Agents Armstrong and Allen told Monteilh that the name

6

referenced him, since he operated under the cover of a fitness consultant. But they

7

also told Monteilh that Operation Flex was a broader surveillance program that

8

went beyond just his work.

9

89. The central feature of the FBI agents' instructions to Monteilh was

10

their directive that he gather information on Muslims, without any further

11

specification. Agents Armstrong and Allen did not limit Monteilh to specific

12

targets on which they wanted information. On the contrary, they repeatedly made

13

clear that they were interested simply in Muslims. To the extent they differentiated

14

within that group, they held a heightened interest in Muslims who were particularly

15

religious.

16

90. When Agents Armstrong and Allen first sent Monteilh to meet the

17

imam at ICOI and began infiltrating the Muslim community, they gave him no

18

specific targets, but instead told him to gather as much information on as many

19

people in the Muslim community as possible. Agent Allen told Monteilh, "We

20

want to get as many files on this community as possible." Agents Armstrong and

21

Allen told Monteilh that the United States was five to ten years behind Europe in

22

the extent of Islamic presence, and that they needed to build files on as many

23

individuals as possible so that when things started to happen, they would know

24

where to go. They said they were building files in areas with the biggest

25

concentrations of Muslim Americans- New York; the Dearborn, Michigan area;

26

and the Orange County/Los Angeles area.

27

91. In addition to information about the membership of each mosque,

28

Agents Armstrong and Allen instructed Monteilh to get the names of all board

-27-

Case 8:11-cv-00301-CJC-VBK Document 49-1 Filed 09/13/11 Page 5 of 25 Page ID #:638

1

members, imams, people who taught classes at the mosques, and other leadership

2

figures within the mosques.

3

92. Over the course of the investigation, Agents Armstrong and Allen sent

4

Monteilh to about ten mosques to conduct surveillance and audio recording in each

5

one. Monteilh spent the most time at ICOI, which he attended daily, but spent

6

significant time at other mosques, including the Orange County Islamic Foundation

7

mosque in Mission Viejo, Durul Falah in Tustin, Omar al-Farouq mosque in

8

Anaheim, Islamic Society of Orange County in Garden Grove, Al-Fatiha in the

9

West Covina/Azusa area, the mosque in Lomita, and King Fahd mosque in Culver

10

City. For about five or six months Monteilh went at least once a week to each of

11

these mosques, and would go to as many as four different mosques in a day to meet

12

with and talk to people, if not to pray.

13

93. Agents Armstrong and Allen initially told Monteilh he would make

14

his first contact with the community by attending services at a mosque in Anaheim,

15

but then instructed him to attend ICOI instead because it was closer to where he

16

lived, so he could spend more time there.

17

94. Agents Armstrong and Allen also informed Monteilh that the

18

surveillance program was itself spread indiscriminately across the area's mosques.

19

Electronic surveillance equipment was installed in at least eight area mosques

20

including ICOI, and mosques in Tustin, Mission Viejo, Culver City, Lomita, West

21

Covina, and Upland. They told him at one point that they could get in a lot of

22

trouble if people found out what surveillance they had in the mosques, which

23

Monteilh understood to mean that they did not have warrants. Nonetheless, Agent

24

Armstrong told Monteilh that the FBI had every mosque in the area under

25

surveillance - including both the ones he went to and the ones he didn't.

26

95. Upon information and belief, Agents Allen and Armstrong caused

27

such electronic surveillance equipment to be installed at the Mission Viejo mosque

28

and used it to monitor conversations ofPlaintiffYassir Fazaga, including

-28-

Case 8:11-cv-00301-CJC-VBK Document 49-1 Filed 09/13/11 Page 6 of 25 Page ID #:639

1

conversations held in parts of the mosque not open to the public, including Sheikh

2

Fazaga's office.

3

96. Apart from the electronic surveillance program, Agents Armstrong

4

and Allen also directed their surveillance at people on the basis of their religion by

5

instructing Monteilh to look for and identifY to them people with certain religious

6

backgrounds or traits, such as anyone who studiedjiqh (a strand of Islamic law

7

concerning morals and etiquette), who was an imam or sheikh; who went on Hajj;

8

who played a leadership role at a mosque or in the Muslim community; who

9

expressed sympathies to mujahideen; who was a "white" Muslim; or who went to

10

an Islamic school overseas.

11

97. Even with respect to these categories of Muslims, Monteilh's handlers

12

did not tell him to limit the information he collected to those people. Agents

13

Armstrong and Allen would occasionally instruct Monteilh to spend more time

14

with or find out more about particular people he identified, but these were always

15

people Monteilh had identified to them during the course of the operation, not

16

people who had been targeted from the outset.

17

98. Agents Armstrong and Allen also instructed Monteilh to focus on

18

Muslim youth by keeping an eye out for people who tended to attract young

19

Muslims. They instructed him to identifY and gather information on such people.

20

For example, Monteilh told them about a popular youth group on Tuesdays at ICOI

21

run by the imam. Students from the Muslim Student Union at the University of

22

California, Irvine ("UCI") would attend. On many occasions, Monteilh recorded

23

the youth group meetings at ICOI by leaving his possessions, including the

24

recording key fob, near where the group met in the prayer hall so that all of their

25

discussions could be recorded. Monteilh did this by going into the prayer hall

26

during their meetings to pray, and then leaving behind his possessions as if he had

27

forgotten them or just chosen to leave them there while he did other things.

28

Monteilh would go to another part of the mosque or the courtyard, and return

-29-

Case 8:11-cv-00301-CJC-VBK Document 49-1 Filed 09/13/11 Page 7 of 25 Page ID #:640

1

sometime later to collect his things. Monteilh told his handlers he did this in his

2

written reports. His handlers never instructed him to stop this practice, and instead

3

repeatedly discussed with him the contents of the recordings obtained in this

4

manner.

5

The FBI's Surveillance Strategies

6

99. The FBI agents instructed Monteilh to engage in a number of

7

surveillance strategies, all of which served to gather information on Muslims in an

8

indiscriminate manner.

9

100. After Monteilh agreed to work as a confidential informant and

10

underwent some training under the supervision Agents Armstrong and Allen,

11

Agents Armstrong and Allen instructed him to make the appointment to see the

12

imam at the ICOI. Once Monteilh had taken shahadah and began attending both

13

ICOI and other mosques, Agents Armstrong and Allen instructed him to gather

14

information on the Muslims at the mosques.

15

101. Agents Armstrong and Allen instructed Monteilh to obtain

16

information through various methods. They told him to take every opportunity to

17

meet people, get their contact information, meet them privately to get to know

18

them, find out their background, find out their religious and political views, and get

19

any information about them that he could to pass on to the FBI.

20

102. As a result, over the time he spent at ICOI and other mosques

21

Monteilh did not focus on any particular group of people, such as those who may

22

have engaged in criminal activity or even those from a particular country, but

23

instead socialized widely with different groups and individuals. ICOI is a multi-

24

lingual, multi-ethnic mosque, with separate social groups that form around

25

common language or country of origin. Monteilh surveilled people from every

26

social group regardless of their ethnic origin or dominant language.

27

103. Pursuant to his handlers' instructions, Monteilh went out ofhis way to

28

engage all of these different groups, even when he had no natural connection to

-30-

Case 8:11-cv-00301-CJC-VBK Document 49-1 Filed 09/13/11 Page 8 of 25 Page ID #:641

1

them. For example, he attended religion classes given in Arabic even when he did

2

not speak Arabic, and questioned 17 and 18 year olds about religious doctrine and

3

politics, when a stranger in his forties might be expected to ask such questions of

4

adults, not youth. Similarly, Monteilh spent significant time with a group of

5

Egyptians, a group of Pakistanis and Indians, a group from Syria and Lebanon, and

6

with the younger, second-generation social groups (generally identified as

7

"Muslim Students Union," or MSU, in reference to on-campus Muslim

8

organizations). Within each group, he spoke to large numbers of people so as to

9

probe their views on religion, politics and violence, and then report them back to

10 his handlers at the FBI.

11

104. Within these groups, Monteilh tended to focus more heavily on people

12 who were more religious; people who came to the mosque only to attend Friday

13

prayers were less likely to be recipients of his attention.

14

105. Agents Armstrong and Allen also gave Monteilh a standing order to

15

gather information on Muslims' charitable giving. They instructed him to collect

16 any pamphlet or brochure at any mosque that concerned charitable donations, to

1 7

inquire of Muslims about which charities and Islamic schools to give to, and to

18 then pass on the names of the charities and Islamic schools to them.

19

106. Monteilh' s handlers also instructed him to attend Muslim fundraising

20

events, to interact with the community and gather information, to identify people

21

who attended and who they came with, and, if there were any speakers, to record

22

what those speakers said.

23

107. Agents Armstrong and Allen also asked Monteilh to collect

24

information on the travel plans of Muslims in the community. They told him that

25 they shared this information with the Department of Homeland Security so as to be

26

able to monitor or search people during their travels.

27

108. Monteith's handlers also instructed him to attend lectures by Muslim

28

scholars and other guest speakers. Because Monteilh's handlers wanted to know

- 31 -

Case 8:11-cv-00301-CJC-VBK Document 49-1 Filed 09/13/11 Page 9 of 25 Page ID #:642

1

.both what the lecturers said and who attended these lectures, they equipped

2

Monteilh with a video surveillance device that had a camera in a shirt button, so

3

that he could both record lectures and film attendees socializing. Monteilh also

4

collected license plate numbers from the parking lots to identify those who

5

attended.

6

109. In keeping with his handlers' orders, Monteilh also attended classes at

7

the mosque so as to obtain more information on Muslim community members. For

8

example, he attended an Arabic language class at ICOI from about December 2006

9

to March 2007. On his handlers' instructions, he obtained and provided them with

10 the lists of the individuals who attended the class. Monteilh also attended a course

11

injiqh, and obtained and provided the class list to his handlers, as per their

12

instructions.

13

110. Agents Armstrong and Allen also instructed Monteilh to attendfajr

14

(dawn) prayers, which are held about 4 a.m., or ishaa (late) prayers, which are held

15

about 9:30p.m. Agents Armstrong and Allen told him that people who attended

16 prayers very early in the morning or late at night, and especially both, were very

17 devout and therefore more suspicious. They instructed him to obtain the names

18

and the license plate numbers of individuals who attended these prayers. Agents

19 Armstrong and Allen increased his pay when he agreed to go to fajr prayer four

20 days a week.

21

111. Agents Armstrong and Allen also instructed Monteilh to memorize

22

certain ayas and surahs (verses and chapters from the Quran) and to ask Muslims

23

about them. They said they had picked these verses because they believed them to

24

be susceptible to a ')ihadist" interpretation, so that people's reactions to them

25

would help discern who was and was not a threat. They told Monteilh that

26

discussions about these verses would elicit responses that could be used to justify

27

additional surveillance measures.

28

112. Agents Armstrong and Allen also expressed interest in any Muslims

- 32-

Case 8:11-cv-00301-CJC-VBK Document 49-1 Filed 09/13/11 Page 10 of 25 Page ID #:643

1

who followed websites that the agents believed were ')ihadist," including

2

Missionlslam.com and CagePrisoners.com (a site devoted to raising awareness

3

about the detainees at Guantanamo Bay). Agent Allen told Monteilh to encourage

4

people he spoke with to go to these websites because they could document

5

people's visits to the website and use that either to pressure them to become

6

informants or to justifY further surveillance on them.

7

113. Agents Armstrong and Allen also encouraged Monteilh to bring up in

8

conversation certain Muslim scholars and thinkers whom they believed were

9

extremist, so as to elicit people's views on them. The scholars they instructed him

10 to discuss included a number of Islamic scholars who, at the time, were both

11

widely popular and moderate, such as Sheikh Suhaib Webb and YusefEstes.

12

114. Monteilh also used his cover as a fitness consultant to gather

13

information on the Muslims with whom he interacted. During his time working on

14

Operation Flex, Monteilh told people in the Muslim community that he worked as

15

a fitness consultant. In about November 2006, Agent Allen instructed Monteilh to

16

start going to the gym to work out with people he met from the Muslim

17

community, in order to get close to them and obtain information about them.

18 Again, Monteilh's handlers did not limit the scope of their instructions; the

19

directive included anyone from any mosque without any specific target, for the

20

purpose of collecting as much information as possible about Muslims in the

21

community. Pursuant to these instructions, Monteilh worked out with Muslims in

22

various gyms around the Orange County area and elicited a wide variety of

23

information, including travel plans, political and religious views.

24

115. The goal of these conversations was to obtain compromising

25

information that his handlers could use to pressure the Muslims with whom

26

Monteilh interacted into providing information or becoming informants. Monteilh

27

recorded these conversations using the equipment on his key fob or cell phone.

28

This surveillance was so fruitful that Monteith's handlers eventually told him they

- 33-

Case 8:11-cv-00301-CJC-VBK Document 49-1 Filed 09/13/11 Page 11 of 25 Page ID #:644

1

were seeking approval to have him open a Muslim gym.

2

116. Agents Armstrong and Allen talked repeatedly with Monteilh about

3

obtaining new informants within the Muslim community, primarily by getting

4

information on potential informants that could be used against them if they refused

5

to inform- such as immigration issues, sexual activity, business problems, or

6

crimes like drug use. Agents Armstrong and Allen instructed Monteilh to pay

7

attention to people's problems, to talk about and record them, including marital

8

problems, business problems, and petty criminal issues. Agents Armstrong and

9

Allen on several occasions talked about different individuals that they believed

10 might be susceptible to rumors about their sexual orientation, so that they could be

11

persuaded to become informants through the threat of such rumors being started.

12

117. Agents Armstrong and Allen also often spoke with Monteilh about a

13 maxim that "everybody knows somebody." They explained that if someone is

14 from Afghanistan, that meant that they would likely have some distant member of

15 their family or acquaintance who has some connection with the Taliban. Ifthey

16 are from Lebanon, it might be Hezbollah; if they are from Palestine, it might be

17 Hamas. By finding out what connections they might have to these terrorist groups,

18 no matter how distant, they could threaten the individuals and pressure them to

19 provide information, or could justify additional surveillance.

20

118. Agents Armstrong and Allen also instructed Monteilh to engage in

21

acts that would build his reputation as a devout Muslim who had access to black

22 market items. On one occasion, Agents Armstrong and Allen instructed Monteilh

23

to provide Vicodin to a person whose father was sick in a foreign country. On

24 another occasion, Agent Allen instructed Monteilh to provide prescription anabolic

25

steroids to another two individuals to similarly further his credibility, which he did.

26

119. During their regular meetings with Monteilh, Agents Armstrong and

27 Allen also showed him photographs of Muslims from the community, taken from

28 many of the methods identified above (e.g. at the gym, at fajr prayer, etc.), asked

-34-

Case 8:11-cv-00301-CJC-VBK Document 49-1 Filed 09/13/11 Page 12 of 25 Page ID #:645

1

him to identify the people in those photographs, and then directed him to provide

2

as much information as possible about each person, including what mosque they

3

attended, their ethnicity or country of origin, the languages they spoke, the people

4

they associated with, what kind of car they drove, their occupation or whether they

5

were a student, as well as any other information Monteilh could obtain.

6

120. One theme ran throughout all of these different surveillance gathering

7

strategies: Agents Armstrong and Allen expressed interest in gathering

8

information only on Muslims, and they set aside any non-Muslims who were

9

identified through surveillance Monteilh performed. For example, on several

10 occasions when Agents Armstrong and Allen asked Monteilh to identify

11

individuals from photographs taken by surveillance cameras at the entrances to

12

gyms, they presented him with photographs of individuals who were not Muslim

13

-usually Latino -who Monteilh had spoken to or who had simply helped him

14

lift weights. Each time Monteilh indicated to Armstrong and Allen that the

15

individual identified was not a Muslim, they discarded the picture.

16

121. Indeed, both Agent Armstrong and Agent Allen, as well as other

17

agents, explicitly told Monteilh that Islam was a threat to America's national .

18

security.

19

The FBI's Surveillance Tools

20

122. Agents Armstrong and Allen recorded information about virtually all

21

of the people with whom Monteilh interacted in several different ways- through

22

audio recording, video recording, extensive review of Monteilh' s handwritten

23

notes about all aspects of his daily interactions, and a dragnet program to obtain

24 cellphone numbers, email addresses, and information about internet usage.

25

123. Upon information and belief, virtually all ofMonteilh's interactions

26 with Muslims in the mosques were recorded by audio, video, or both. The

27 recordings were then transcribed and reviewed by officials within the FBI. Agent

28

Allen told Monteilh that there was a team transcribing all of his recorded

- 35-

Case 8:11-cv-00301-CJC-VBK Document 49-1 Filed 09/13/11 Page 13 of 25 Page ID #:646

1

conversations.

2

124. Agents Armstrong and Allen instructed Monteilh that because of his

3

criminal background, all information he collected would have to be recorded.

4

After about September 2006, Armstrong and Allen gave Monteilh a cell phone and

5

two key fobs (which resembled the remote controls for car locks) with audio

6

recording devices in them, and which Monteilh used to record all day, every

7

moment he worked undercover, regardless of whom he was meeting or what was

8

discussed.

9

125. People at ICOI noticed that Monteilh would often forget his keys, so

10

that they would be delivered to the imam's office. People joked about Monteilh

11

frequently forgetting his keys, and for having his keys out during lectures and

12

conversations, even if he had to get them out after he sat down.

13

126. In fact, Monteilh utilized the trick ofleaving his keys around the

14

mosque to allow audio recording of conversations to take place even when he was

15

not present.

16

127. On several occasions, Monteilh also left the recording devices in

17

locations in mosques in the area. For example, in a large mosque in Culver City,

18

Monteilh several times attended with a friend who changed in the office from

19

business clothes to more traditional dress before they went into the mosque to pray.

20

Monteilh left his keys in the office so that the key fob would record staff and board

21

members who came in and talked, then retrieved his keys from the office when

22

they were finished in the mosque. Monteilh did this several times, and in several

23

different mosques. Agents Armstrong and Allen received the notes where

24

Monteilh said he did this but never instructed him to stop.

25

128. Monteilh's recording activity was not limited to audio. Beginning in

26

about February 2007, on numerous occasions Agents Armstrong and Allen

27

outfitted Monteilh with video surveillance equipment that recorded through a

28

camera hidden in a button in the front of his shirt, while recording audio as well.

-36-

Case 8:11-cv-00301-CJC-VBK Document 49-1 Filed 09/13/11 Page 14 of 25 Page ID #:647

1

Toward the end of his assignment, Agents Armstrong and Allen had equipped

2

Monteilh to use this video surveillance as often as several days per week.

3

129. Agents Armstrong and Allen instructed Monteilh to use the video

4

camera for various specific purposes, including to capture the internal layout of

5

mosques, to film basketball or soccer games to see who associated with whom, to

6

film guest lectures at mosques to see what was said and who attended, and to

7

record the interiors of people's houses. Monteith's handlers at various times

8

instructed him to open particular doors in homes or mosques and film the room

9

behind.

10

130. Agents Armstrong and Allen also used Monteith's activities to gather

11

telephone and cell phone numbers, email addresses, and other electronic

12 information for indiscriminate surveillance.

13

131. Agents Armstrong and Allen told Monteilh they wanted him to collect

14 contact information, particularly email addresses and phone numbers. At times,

15 they even gave Monteilh quotas to collect contact information for ten new Muslims

16 per day. Agents Armstrong and Allen told Monteilh that they monitored his email

17 and cell phones to obtain the telephone numbers and email addresses of people

18 with whom he corresponded. Agent Allen instructed him to give out his cell phone

19 number widely so that people would call him or give their cell numbers in return,

20

so that the FBI could then collect those numbers. Armstrong and Allen also

21

instructed him to email frequently with people, so that the FBI could collect their

22

email addresses. Agents Armstrong and Allen told Monteilh that they used the cell

23

phone numbers and email addresses of individuals who contacted him to obtain

24

information from those individuals' phone and email accounts, including the list of

25

people they contacted.

26

132. Agents Armstrong and Allen told Monteilh that they kept the numbers

27

and emails he collected in a database that could be monitored for international

28

calls, or cross-referenced against phone calls or emails to persons of interest who

-37-

Case 8:11-cv-00301-CJC-VBK Document 49-1 Filed 09/13/11 Page 15 of 25 Page ID #:648

1

were believed to be linked to terrorism. Monteilh's handlers also told him that the

2

emails could be used to determine if the person was visiting certain websites, and

3

with whom they were emailing. Monteilh joined email distribution lists for many

4

of the mosques he surveilled, and would forward messages from the mosques to

5

the FBI so they would be informed about events and bulletins, and so they would

6

have the email addresses of anybody else who received the message.

7

133. Agents Armstrong and Allen also instructed Monteilh to gather all

8

available information, including literature, on events occurring at the mosques.

9

Following these instructions, Monteilh would collect brochures on charities that

10

were distributed in the mosques, visit the mosques' libraries or book areas, collect

11

newsletters and bulletins to see what activities were going on in the mosque, and

12

collect the names of individuals who attended, as well as their cell phone numbers

13

and license plates when possible. He would record this information either

14

electronically or through a system of notes.

15

134. Agents Armstrong and Allen instructed Monteilh to compose daily

16

notes of his activities and the surveillance he had undertaken. These notes were

17

extensive - Agents Armstrong and Allen instructed Monteilh to "empty [his]

18

head" about what he had learned that day - so that Monteilh regularly spent an

19 hour or two each evening writing notes. After a while, these notes became so

20 voluminous that Armstrong and Allen instructed Monteilh to prepare separate

21

"supplemental notes" containing any sensitive or particularly valuable information.

22

These were all handwritten. Armstrong and Allen took these notes from Monteilh

23

when they met him twice a week.

24

135. At times, Monteilh reported to Agents Armstrong and Allen that when

25

he was left alone in a mosque office, he had looked in drawers for information.

26 Armstrong and Allen never instructed him not to do this.

27

136. Agents Armstrong and Allen were well aware that many of the

28

surveillance tools that they had given Monteilh were being used illegally. Agent

- 38-

Case 8:11-cv-00301-CJC-VBK Document 49-1 Filed 09/13/11 Page 16 of 25 Page ID #:649

1

Armstrong once told Monteilh that while warrants were needed to conduct most

2

surveillance for criminal investigations, "National security is different. Kevin is

3

God." Agent Armstrong also told Monteilh more than once that they did not

4

always need warrants, and that even if they could not use the information in court

5

because they did not have a warrant, it was still useful to have the information. He

6

said that they could attribute the information to a confidential source if they needed

7

to.

8

137. Over the course of the fourteen months that Agents Armstrong and

9

Allen supervised Monteilh' s work as an informant in the Los Angeles and Orange

1 0

County Muslim communities, they gathered hundreds of phone numbers and

11

thousands of email addresses of Muslims. They also obtained background

12

information on hundreds of individuals, gathered hundreds of hours of video

13

recordings that captured the interiors of mosques, homes, businesses, and the

14

associations ofhundreds of Muslims. They also obtained thousands ofhours of

15

audio recording of conversations - both where Monteilh was and was not present

16

-as well as recordings of public discussion groups, classes, and lectures

1 7

occurring in mosques and at other Muslim religious and cultural events.

18

The FBI's Oversight, Supervision, and Use ofMonteilh

19

138. Upon information and belief, FBI Agents Armstrong and Allen, as

20

well as their superiors Director Tidwell, and Agents Walls and Rose, maintained

21

extremely close oversight and supervision of Monteilh. Moreover, because they

22

made extensive use of the results ofhis surveillance, they knew in great detail the

23

nature and scope of the operation, including the methods of surveillance Monteilh

24

used and the criteria used to decide his targets, and continually authorized their

25

ongomg use.

26

139. From about August 2006 to October 2007, Agents Armstrong and

27

Allen met with Monteilh about twice per week for meetings to discuss their

28

assignments for him, to give him instructions, to obtain his daily notes, and to

- 39-

Case 8:11-cv-00301-CJC-VBK Document 49-1 Filed 09/13/11 Page 17 of 25 Page ID #:650

1

either exchange his recording devices for fresh ones or upload the recordings to a

2

computer. These meetings were held in public places, outside the areas where the

3

Muslim community lived. About once per month, they met with Monteilh in a

4

room at the Anaheim Hilton Hotel, where they discussed the information he had

5

obtained and gave him instructions in greater detail.

6

140. Agents Armstrong and Allen monitored and supervised Monteilh's

7

work as an undercover informant closely. Through the daily notes they collected

8

from him and the twice-weekly meetings, Monteith told them about virtually

9

everything he did and all the information he had obtained. They gave Monteilh

10 instructions, or "tasking orders," regularly. They gave him both standing

11

instructions on kinds of information to gather whenever possible - for example, to

12 meet and get contact information for a certain number of Muslims per day- and

13

also gave him specific instructions on information they wanted, often in response

14 to information he provided - such as, for example, instructions to get inside a

15

certain house within the week or to have lunch with a particular person two times.

16 Agents Armstrong and Allen also gave Monteilh standing orders to call one of

17 them every day, even on his days off, which Monteilh would do, apprising them on

18 the call of his day's activities.

19

141. Agents Armstrong and Allen at various times discussed with Monteilh

20 what happened to these notes. They said that their supervisors read the notes, that

21

the notes were seen in "the Beltway," that they were seen by people with "a lot of

22 authority," and that the Assistant Director in Charge of the FBI's Los Angeles field

23

office, who at that time was Stephen Tidwell, read all ofMonteilh's daily notes.

24

142. During the course ofthe investigation, Agents Armstrong and Allen

25

discussed with Monteilh how the information he collected was actually being used.

26

They assured him that all the information he collected was retained, and that they

27

discarded none of it. They also told him that the information was used to build

28

files on individuals: that every person he contacted- whose phone number he got,

-40-

Case 8:11-cv-00301-CJC-VBK Document 49-1 Filed 09/13/11 Page 18 of 25 Page ID #:651

1

who he emailed, who he identified through photographs - had an individual file

2

in which the information he gathered was retained.

3

143. On about four different occasions, during the meetings between

4

Agents Armstrong and Allen and Monteilh at the hotel room, they showed him a

5

huge photo array on a large board consisting of the photos of around two hundred

6

Muslims from the Orange County/Los Angeles area. Agents Armstrong and Allen

7

used different sets of photographs for each of these meetings, so that Monteilh saw

8

hundreds of photographs over the four meetings. They instructed him to arrange

9

the photos from the most dangerous to the least based on his knowledge and

10 experience. The entire leadership of the Islamic community were in the photos -

11

sheikhs, imams, board members; prayer leaders, leaders of civic organizations, and

12 youth groups. The process took hours. Agents Armstrong and Allen also asked

13

Monteilh to assist them in organizing the photos according to categories such as

14 financial, operative, and leadership; to divide photos into possible cells according

15

to mosques and ethnicity or nationality. The first ofthese meetings was in about

16 March 2007, and the last was in about September 2007.

17

144. Over the course of several conversations, Agents Armstrong and

18

Allen told Monteilh that they considered the leaders in the Muslim community -

19

board members and leadership at mosques and leaders ofMuslim organizations-

20 to be potential threats, and that they regularly surveilled them and maintained more

21

detailed files of information on their background and activities.

22

145. In about early spring of2007, Agents Armstrong and Allen told

23

Monteilh that information he had provided was particularly valuable, and told him

24

he was "gold" in Los Angeles and in Washington. Agent Allen said that

25

information from the operation was followed by people "at the highest levels,"

26

and that the operation was among the ten most important intelligence

27

investigations going on in the country. In about March or April 2007, Agent Allen

28

said that he had meetings with Stephen Tidwell and one of his supervisors from

-41 -

Case 8:11-cv-00301-CJC-VBK Document 49-1 Filed 09/13/11 Page 19 of 25 Page ID #:652

1

Washington, D.C., Joseph Billy, Jr., about the operation.30 Around the same time

2

period, Agent Allen flew to Washington, D.C. with his supervisor, Pat Rose, in

3

part to meet with high-level FBI officials to get approval to open a gym for

4

Muslims that would function in part as a mosque with a prayer room. Agent Allen

5

told Monteilh that approval to open the gym had been granted.

6

146. At around that time, Agents Armstrong and Allen told Monteilh that

7

information from the operation would be shared with other agencies - that

8

information obtained on people's finances or foreign assets was shared with the

9

Treasury Department, and that information about people's immigration issues

10

would be sent to immigration officials.

11

The End of the Monteilh Operation

12

147. Agents Allen and Armstrong had instructed Monteilh to ask general

13

questions about jihad from the beginning of the operation. In early 2007, they

14

instructed him to start asking more pointedly about jihad and armed conflict, then

15

to more openly suggest his own willingness to engage in violence. Pursuant to

16

these instructions, in one-on-one conversations, Monteilh began asking people

17

about violent jihad, expressing frustration over the oppression of Muslims around

18

the world, pressing them for their views, and implying that he might be willing or

19

able to take action.

20

148. In about May 2007, on instructions from his handlers, Monteilh told a

21

number of individuals that he believed it was his duty as a Muslim to take violent

22

actions, and that he had access to weapons. Many members of the Muslim

23

community at ICOI then reported these statements to community leaders, including

24

Hussam Ayloush. Ayloush both called the FBI to report the statements and

25

instructed the individuals who had heard the statements to report them to the Irvine

26

27

30 Upon information and belief, Billy was at the time the FBI's Assistant Director

in Charge of the agency's Counterterrorism Division.

28

-42-

Case 8:11-cv-00301-CJC-VBK Document 49-1 Filed 09/13/11 Page 20 of 25 Page ID #:653

1

Police Department, which they did.

2

149. As a community, ICOI also brought an action for a restraining order

3

against Monteilh to bar him from the mosque. A California Superior Court granted

4

the restraining order in June 2007.

5

150. After the court granted the restraining order, Monteilh continued

6

going to other mosques for a month or two, but then disappeared from the Muslim

7

community.

8

151. At around the same time - during the summer of 2007 -- Agents

9

Armstrong and Allen told Monteilh that Defendant Barbara Walls, then the

10 Assistant Special Agent in Charge of the FBI's Santa Ana office, had come to

11

distrust him and did not want him working any more. They told him there was

12 significant conflict between Agent Walls and field agents over how to handle the

13

operation, and that there had been an audit team sent from Washington, D.C., to

14 examine Agent Walls' handling of one of the leads from the operation. Because of

15 this conflict and complications surrounding the restraining order, Agents

16 Armstrong and Allen told Monteilh in about September 2007 that he would be

17 going on hiatus from undercover work in the Orange County Muslim community.

18

152. During one of their final meetings with Monteilh in about October

19 2007, Agent Allen told Monteilh that although his role was over, Operation Flex

20

and the FBI's operations in Orange County and Los Angeles would continue. He

21

said that the information Monteilh had provided was a valuable foundation for the

22

FBI's continuing work.

23

153. During one of the final meetings between Agents Armstrong and

24 Allen and Monteilh, Agent Walls was also present. She warned Monteilh to stay

25

silent about the operation.

26

154. In August 2008, Monteilh returned to Irvine and contacted the Irvine

27

Police Department to voice concerns about his safety because of his role as an

28

informant. He spoke with a detective, as well as a sergeant that he recognized as

-43-

Case 8:11-cv-00301-CJC-VBK Document 49-1 Filed 09/13/11 Page 21 of 25 Page ID #:654

1

someone who had once escorted him when he was undercover with his handlers.

2

The sergeant knew very specific information about individuals Monteilh had

3

surveilled who he had concerns about, and told Monteilh in this meeting that he

4

worked for JTTF. He told Monteilh that several individuals he had asked him

5

about were still under surveillance. He also specifically mentioned that

6

surveillance was ongoing at gyms and at least two mosques.

7

Monteilh's Identity Revealed

8

155. On or about about February 20, 2009, a man named Ahmed Niazi was

9

arrested in Orange County and charged in federal criminal court with immigration

10

fraud for lying on his naturalization application.

11

156. Niazi had met Monteilh at ICOI and had spent a significant amount of

12

time with him. Niazi had heard Monteilh's most direct statements about jihad and

13

had reported those statements to Hussam Ayloush and to the Irvine Police

14

Department.

15

157. At Niazi's bail hearing, which occurred on February 24, 2009 in

16

federal district court in Santa Ana, California, FBI Special Agent Thomas Ropel

17 testified that Niazi presented a threat to national security. Agent Ropel testified

18

that he had heard numerous recordings of conversations between Niazi and a

19

confidential informant. Agent Ropel stated that this confidential informant was the

20

man Hussam Ayloush had reported to the FBI, and that Niazi and another

21

individual had reported to the Irvine Police Department. Together, these

22

statements confirmed that the informant was Craig Monteilh, and that he had

23

recorded numerous conversations that he had while an informant.

24

158. Charges against Niazi were dismissed at the request of the United

25

States Attorney's office on about September 30, 2010.

26

159. Agent Ropel's testimony on February 24,2009 confirmed for the first

27

time that Monteilh was a confidential informant for the FBI who had recorded

28

numerous conversations.

-44-

Case 8:11-cv-00301-CJC-VBK Document 49-1 Filed 09/13/11 Page 22 of 25 Page ID #:655

1

160. Prior to that testimony, Plaintiffs did not know and could not

2

reasonably have known that Monteilh was working for the FBI as an informant;

3

that the FBI and Defendants, through Monteilh, had surveilled and gathered

4

information about them from their interactions with Monteilh; and that the FBI had

5

subjected them to this surveillance because of their religion. Upon information and

6

belief, prior to February 2009, Monteilh never told anyone outside of law

7

enforcement and his immediate family that he was working as an informant for the

8

FBI.

9

161. Subsequent to Ropel' s testimony, a number of different sources have

10

confirmed that Monteilh worked for the FBI, including Monteilh himself.

11

162. In news accounts of the investigation, Monteilh himself has stated to

12

reporters that the FBI paid him more than $170,000 over fifteen months to be an

13

undercover informant in mosques in Orange County, that "he was instructed to

14

infiltrate mosques throughout Orange [County] and two neighboring counties in

15

Southern California," that he was "ordered to randomly surveil and spy on

16

Muslims to ferret out potential terrorists," and that his handlers told him that

17

"Islam is a threat to our national security."31

18

163. Upon information and belief, on August 20, 2007, the district attorney

19

in a state criminal case against Monteilh from 2003 moved to terminate his

20

probation early. In the proceeding, the district attorney explained the basis for the

21

termination:

22

Apparently, [Monteilh] is working with F.B.I. Agent Kevin Armstrong.

23

He has given Agent Armstrong very, very valuable information that has proven to be essential in an F.B.I. prosecution. It was Agent Armstrong

24

that contacted the head deputy and the head deputy instructed us to ask

25

26

27

31 See Jerry Markon, Tension grows between Calif. Muslims, FBI after informant

infiltrates mosaue. WASH. POST (Dec. 5. 2010).

J

A.

J

'

"

/

28

-45-

Case 8:11-cv-00301-CJC-VBK Document 49-1 Filed 09/13/11 Page 23 of 25 Page ID #:656

1

. for termination. 32

2

A copy of the transcript is attached hereto as Attachment 1.

3

164. Further confirmation comes from court documents filed in a civil

4

action that Monteilh brought against the FBI and the City of Irvine. In some of

5

those documents, the City of Irvine acknowledged that while a pending criminal

6

investigation ofMonteilh was underway, members of the FBI's Orange County

7

Joint Terrorism Task Force approached members of the Irvine police force and

8

asked them to delay any action against Monteilh.33

9

165. In discovery served by Monteilh in that same federal lawsuit, the City

10

of Irvine admitted that it and its agents ''were aware that [Monteilh] was an FBI

11

informant," and that the City of Irvine "[was] informed by the FBI that [Monteilh]

12

was an FBI informant."34

13

166. Correspondence in connection with that lawsuit provides yet more

14

evidence ofMonteilh's work as an FBI informant. Upon information and belief,

15

on June 16, 2010, Associate General Counsel for the FBI, Henry R. Felix, sent a

16

letter to Adam Krolikowsi, an attorney representing Monteilh in his civil action

17

against the FBI, in reply to a letter Krolikowski had sent the previous day. Felix's

18

June 16 letter indicated that Monteilh had signed a non-disclosure agreement with

19

the FBI on October 5, 2007. Felix noted that Krolikowsi had sent previous letters,

20

but stated that his most recent letter mentioned "Operation Flex" and that this was

21

22

32 Transcript of Proceedings held Aug. 20, 2007, Probation Termination, People v.

23

Monteilh, L.A. Sup. Ct. No. KA059040, filed in support of Motion to Set Aside

Conviction, Exh. I, Monteilh v. Federal Bureau ofInvestigation, Dkt. 89-9, Case

24

No. 10-cv-00102 JVS (RNBx) (C.D. Cal.).

25

33 See Answer to Complaint of City of Irvine and Ronald Carr, Monteilh v. Federal

Bureau ofInvestigation, Dkt. 23, Case No. 10-cv-00102 JVS (RNBx) (C.D. Cal.).

26

34 See Motion to Set Aside Conviction, Exh. G, Monteilh v. Federal Bureau of

27

Investigation, Dkt. 89-7, Case No. 10-cv-00102 JVS (RNBx) (C.D. Cal.) (exceprts

of City of Irvine's responses to requests for admissions).

28

-46-

Case 8:11-cv-00301-CJC-VBK Document 49-1 Filed 09/13/11 Page 24 of 25 Page ID #:657

1

"the first letter in which [Krolikowski] reference[d] a particular FBI operation or

2

investigation." A copy of this letter is attached hereto as Attachment 2.35

3

167. Monteilh himself confirms many of the above-described details of his

4

work as an informant, including that he worked for the FBI to infiltrate the Muslim

5

community of Southern California from about July 2006 until October 2007; that,

6

during this time, he spent about six or seven days a week posing as a Muslim

7

convert named Farouk al-Aziz; that he conducted surveillance and other

8

information-gathering on a wide variety of individuals and organizations in the

9

Muslim community, solely because they were Muslim; and that he conducted

1 0

surveillance of Plaintiffs as alleged below.

11

Monteilh's Interactions with Sheikh Yassir Fazaga

12

168. Agents Armstrong and Allen instructed Monteilh to conduct

13

surveillance of the Orange County Islamic Foundation (OCIF) mosque in Mission

14

Viejo, California. The imam of that mosque is PlaintiffYassir Fazaga.

15

169. Agents Armstrong and Allen told Monteilh they believed that Plaintif

16

Fazaga, the imam ofOCIF, was a radical, for several reasons: They said that

17 Fazaga directed students on how to conduct demonstrations and encouraged them

18

to speak out. They said that when the FBI Assistant Director in Charge of the Los

19

Angeles Field Office, Stephen Tidwell, attended a meeting at an Orange County

20

mosque in about spring 2006, Fazaga openly pressed Tidwell about FBI informants

21

in mosques, and when Tidwell denied putting informants in mosques, Fazaga had

22

openly said he did not believe Tidwell. They also said that Fazaga was a person of

23

interest because he was a board member of "In Focus News/' a prominent Muslim

24

newspaper that was vocal in speaking out against U.S. government actions that

25

26

35 A copy of the letter was filed by Monteilh in his damages action against the FBI.

27

See Motion to Set Aside Conviction, Exh. D, Monteilh v. Federal Bureau of

Investigation, Dkt. 89-4, Case No. 10-cv-00102 JVS (RNBx) (C.D. Cal.).

28

-47-

Case 8:11-cv-00301-CJC-VBK Document 49-1 Filed 09/13/11 Page 25 of 25 Page ID #:658

1

negatively affected Muslims and which Agents Armstrong and Allen believed was

2

anti-American and linked to Muslim civil rights groups. 36

3

170. Agents Armstrong and Allen told Monteilh that OCIF was linked to

4

ICOI, a mosque they were also interested in, because the two mosques held joint

5

events and jointly organized foreign trips, including the hajj pilgrimage to Mecca.

6

They referred to OCIF as a "definite hotspot."

7

171. Agents Armstrong and Allen also told Monteilh that OCIF was radical

8

because it had certain religious scholars as guest speakers whom they believed

9

were radical-particularly YusefEstes, Suhaib Webb, and a local imam, Ahmad

10

Sakr. They said that a moderate mosque would not have chosen these guest

11

speakers.

12

172. Agents Armstrong and Allen instructed Monteilh to attend the Yusef

13

Estes lecture which Sheikh Fazaga's mosque hosted. They equipped him with

14

hidden video equipment that he used to video record the entire lecture, the

15

literature Estes had set out, and the people who attended.

16

173. Pursuant to Agent Armstrong and Allen's instructions, Monteilh

17

18

36 Southern California InFocus News is the largest Muslim newspaper in

19

California, with a circulation of about 25,000 and distribution at over 350 Muslim

businesses and mosques throughout California, including every major mosque in

20

Los Angeles and Orange County. According to its website, the paper's objective is

21

to provide honest, effective and professional reporting, with a focus on California

Muslims that both brings forth issues of concern to the California Muslim

22

communities and provides a window into the American Muslim experience for all

23

Californians. The paper has not only covered stories on local Muslim events and

leaders, but has examined taboo topics such as domestic violence in the Muslim

24

community and written stories to bridge community divides, such as by profiling

25

families of other religions. Like many other newspapers, InFocus News has at

times given news coverage or printed opinion pieces that supported or opposed

26

various policies of the United States government. The paper has never advocated

27

violence against the United States or its citizens or done anything else that would

reasonablv iustifv characterizin!! it as "anti-American."

J ,J

.,

.........

28

-48-

 
 Case 8:11-cv-00301-CJC-VBK Document 49-2 Filed 09/13/11 Page 1 of 29 Page ID #:659

1

attended OCIF a number of times to conduct surveillance, including during Sheikh

2

Fazaga's sermons.

3

174. Agent Armstrong and Allen also equipped Monteilh with a video

4

camera hidden in a shirt button that he used to take video of the interior of OCIF.

5

Agents Armstrong and Allen instructed Monteilh to get a sense of the schematics

6

of the place- entrances, exits, rooms, bathrooms, locked doors, storage rooms, as

7

well as security measures and whether any security guards were armed. Agent

8

Armstrong later told Monteilh that they had used the information he gathered to

9

enter the mosque.

10

175. On the instructions of Agents Armstrong and Allen, Monteilh made

11

video recordings of an area in the back of OCIF where there were religious books

12

available for congregants to use, so that they could determine if any of the

13

literature there was extremist.

14

176. Agents Armstrong and Allen also instructed Monteilh to make

15

contacts within Sheikh Fazaga's Mission Viejo congregation. To comply,

16

Monteilh worked out on various different occasions with about 40 oftheir

17

congregants, usually in groups, obtaining the email address and cell phone number

18

of anyone he worked out with and passing that information on to his handlers.

19

177. Agents Armstrong and Allen instructed Monteilh to gather additional

20

information on a few individuals within the congregation who seemed to have the

21

most direct access to Fazaga- to gather their email addresses, cell phone

22

numbers, and addresses, as well as basic background information such as their

23

occupation, whether they were married or had children, and what prayers they

24

attended. Monteilh gathered this information and passed it on to Armstrong and

25

Allen.

26

178. Agents Armstrong and Allen instructed Monteilh to monitor Fazaga at

27

the prayers he conducted, to record and report on what he said, to talk with him

28

afterwards and see who else talked to him afterwards, and to note individuals who

-49-

Case 8:11-cv-00301-CJC-VBK Document 49-2 Filed 09/13/11 Page 2 of 29 Page ID #:660

1

appeared to be close to him. Monteilh also monitored what was said by a member

2

of the congregation who substituted for Fazaga during one of the prayers.

3

179. In about April 2007, a member of the community introduced Monteilh

4

to Fazaga while he was recording with a hidden video camera. Monteilh also

5

obtained Fazaga's cell phone number and email address (not through Fazaga, but

6

through others) and passed those on to Agents Armstrong and Allen, who told him

7

they used the email addresses and telephone numbers gathered to monitor

8

communications and conduct further surveillance.

9

180. Monteilh also gave Agents Armstrong and Allen the license plate

10

numbers of cars Fazaga traveled in and the people with whom Monteilh saw him

11

associate.

12

181. Agents Armstrong and Allen instructed Monteilh that whenever he

13

saw Fazaga at another mosque or anywhere outside OCIF, he should call them and

14

let them know immediately. Monteilh did this at least once when he saw Fazaga at

15

another mosque.

16

182. On one occasion, during Friday afternoon prayer at OCIF, the mosque

17

had a booth set up to collect donations for some kind of relief for Muslims abroad.

18

Pursuant to Agents Armstrong and Allen's orders to monitor donations, Monteilh

19

stood near the booth and used the hidden video camera to make video recordings

20

of people who went up to the booth to contribute money.

21

183. After Monteilh's role as an FBI informant became publicly known in

22

February 2009, many members of the OCIF congregation were horrified to learn

23

that the man who spent so much time in their mosque was an informant. This

24

revelation significantly undermined the trust within that community, which in tum

25

deterred members from worshipping as a congregation.

26

184. Since he had contact with Monteilh, Fazaga has also been subjected to

27

secondary screening and searches upon return to the U.S. from various

28

international trips, being held between 45 minutes and three hours most times he

-50-

Case 8:11-cv-00301-CJC-VBK Document 49-2 Filed 09/13/11 Page 3 of 29 Page ID #:661

1

travels.

2

185. Since discovering the FBI surveilled him and the mosque where he

3

serves as imam, Sheikh Fazaga believes that any of his communications in the

4

mosque and over telephones may be monitored, and indeed that he may be under

5

surveillance at any time. As an intern therapist as well as an imam, Fazaga

6

provided counseling to congregants and Muslims at the mosque as part of his

7

service to the Muslim community. Since learning ofthe FBI's surveillance, he no

8

longer counsels congregants at the mosque for fear that their conversations are

9

monitored and therefore the personal information shared is not confidential, which

10 has limited his capacity to provide such counseling. The constant fear ofbeing

11

under surveillance, the scrutiny during travel, the effect on the sense of community

12 at his mosque and others, and the additional difficult in providing counseling to

13

clients have all caused Sheikh Fazaga severe and ongoing anxiety and emotional

14

distress.

15

Monteilh's Interaction with Plaintiff Ali Uddin Malik

16

186. In their early meetings with Monteilh, Agents Armstrong and Allen

17 showed Monteilh a picture of a young man who they identified as Plaintiff Ali

18

Malik. They told him Malik had been a surfer kid in Newport Beach who wore

19 dyed hair, but had travelled to Yemen to attend a religious school, and had returned

20

to the U.S. wearing traditional Muslim dress and a full beard.

21

187. Agents Armstrong and Allen told Monteilh that Malik's change in

22

behavior in embracing religion and traditional dress was highly suspicious and for

23

that reason they needed to investigate him. They also told him they were

24

suspicious of Malik because he was involved with people from the "MSU."

25

("MSU" stands for "Muslim Student Union," which is the name of Muslim student

26 groups at many colleges and universities, including U.C. Irvine.) Agent Armstrong

27

told Monteilh that before he was assigned to be his handler, he had been assigned

28

to investigate the MSUs and young Muslims, including Ali Malik.

-51 -

Case 8:11-cv-00301-CJC-VBK Document 49-2 Filed 09/13/11 Page 4 of 29 Page ID #:662

1

188. Agents Armstrong and Allen told Monteilh that the way that Malik

2

groomed his beard indicated that he was a radical.

3

189. Agents Armstrong and Allen already had information on Malik and

4

his family before they assigned Monteilh to do anything, but they told Monteilh to

5

get more information on one of his brothers; on another individual who Malik was

6

close to; on Malik's associations from the Irvine mosque, and on anyone with

7

whom Malik hung out at the gym.

8

190. Agents Armstrong and Allen said that they knew Malik had been to an

9

Islamic religious school in Yemen, and that he had been blocked from entering

1 0

Saudi Arabia after he had traveled to Yemen. They tasked Monteilh with finding

11

out what school he had been to and why he had been denied entry into Saudi

12

Arabia. Upon information and belief, Armstrong and Allen already had knowledge

13

of this information. When re-entering the country in 2006, Malik had been

14

interviewed at length by U.S. officials and had fully disclosed the nature of his

15

travels, including his study at Dar al-Mustafa. Malik also disclosed that while

16

abroad, he had traveled to Abu Dhabi in hopes of getting a visa to Saudi Arabia for

17

Umrah (the minor pilgrimage in Islam). However, Malik was informed by

18

individuals both at Dar al-Mustafa and in Abu Dhabi that he needed to apply for a

19

visa with the Saudi embassy in the United States, which was logistically

20

impossible to do during his trip, so that Malik did not attempt to enter Saudi Arabia

21

or even apply for a visa during his 2006 trip.

22

191. In about April 2007, Agents Armstrong and Allen began discussing

· 23

the possibility of sending Monteilh abroad to study Islam and Arabic. When

24

Monteilh started asking about a school to go to, Malik told him that he had

25

attended Dar al-Mustafa in Tarim, in Yemen. Monteilh reported this information

26

to Agents Armstrong and Allen.

27

192. On several occasions, Monteilh used the key fob or cell phone

28

recording devices provided by Agents Armstrong and Allen to record groups of

-52-

Case 8:11-cv-00301-CJC-VBK Document 49-2 Filed 09/13/11 Page 5 of 29 Page ID #:663

1

young Muslims talking in the prayer hall, particularly after ishaa prayer. On these

2

occasions, Monteilh greeted people, left his things - including the recording

3

device - near where they were talking, and then went to another part of the

4

mosque (or a different part of the prayer hall) to pray so that the recording device

5

would capture their conversation when he was gone. On several ofthese

6

occasions, Ali Malik was one of the people in the group Monteilh recorded.

7

Monteilh recorded these conversations when he was not present, then gave notes

8

that detailed the people he saw there to Agents Armstrong and Allen, so they

9

would be able to identify the voices. Agents Armstrong and Allen received notes

10

in which Monteilh said that he had recorded these conversations without being

11

physically present, and never told him not to do this.

12

193. The prayer hall of a mosque is sacred space where particular rules and

13

expectations apply. Shoes are prohibited, one must be in a state of ablution,

14

discussing worldly matters is discouraged, and the moral standards and codes of

15

conduct are at their strongest. Gossiping, eavesdropping, or talebearing (namima-

16

revealing anything where disclosure is resented) is forbidden. Halaqas, or small

17

group meetings, are understood by attendees of the mosque to be safe

18

environments in which to discuss theology or matters related to the practice of

19

Islam, and that correspondingly ensure some measure of confidentiality among

20

participants. In addition, audio and video recording without permission were

21

barred at ICOI, and on rare occasions where an outside entity recorded an event or

22

speaker, signs notified congregants of the recording.

23

194. Malik more than once told Monteilh that he heard Monteilh was going

24

regularly to fajr, or early morning prayer. Malik commended Monteilh on his

25

commitment - he said that he had gotten into the routine of attendingfajr prayers

26

daily when he had been studying abroad, but that, regrettably, it was easy to fall

27

into attending prayers only when it was convenient. He stated that he wanted to

28

get back to that kind of regimen. Agents Armstrong and Allen told Monteilh this

-53-

Case 8:11-cv-00301-CJC-VBK Document 49-2 Filed 09/13/11 Page 6 of 29 Page ID #:664

1

was significant information that indicated Malik was returning to extremist beliefs,

2

which justified further surveillance.

3

195. Agents Armstrong and Allen received significant information on

4

Malik. In addition to the surveillance described above, including recordings of all

5

Monteilh' s conversations with Malik, they several times showed Monteilh photos

6

with people they said had seen with Malik and asked him to identify them. The

7

pictures sometimes had Malik in them.

8

196. Since his contact with Monteilh, Malik has repeatedly been subjected

9

to extended interviews with FBI and Customs upon re-entering the country,

10

including one interview that lasted for several hours, resulted in him missing a

11

connecting flight, and consequently missing a summer school class that made him

12

lose credit for the class and required that he push his college graduation back by

13

several months at considerable financial expense.

14

197. Also as a result of the FBI's surveillance, Malik altered his religious

15

practices. Because he understood he was targeted because of his outwardly

16

religious appearance, adherence to Islamic ritual practice, and involvement with

17

the mosque and Muslim Student Union at UCI, Malik trimmed his beard, does not

18

regularly wear a skull cap any longer, and stopped attending the mosque regularly

19

for an extended period of time. To this day, he attends mosque less frequently than

20

he did before having contact with Monteilh because of his fear of being monitored

21

at mosque and the effect that this fear has on his sense of the mosque as a place of

22

peace and spiritual refuge. This interference with his religious practice results

23

from Defendants' actions and has caused Malik severe and ongoing anxiety and

24

emotional distress.

25

198. Malik also believes his reputation in the community to have been

26

damaged. He believes that because of his association with Monteilh, people have

27

also assumed that he is a government informant and act as if they are suspicious of

28

him. He believes that he does not have the full trust ofthe Muslim community.

-54-

Case 8:11-cv-00301-CJC-VBK Document 49-2 Filed 09/13/11 Page 7 of 29 Page ID #:665

1

This belief that others suspect him because of Defendants' actions has caused

2

Malik severe and ongoing anxiety and emotional distress.

3

199. Since discovering the FBI surveilled him and the mosque he attended,

4

Malik believes that any of his communications in the mosque and over telephones

5

may be monitored, and indeed that he may be under surveillance at any time. He

6

curtails phone and email conversations with his friends and family because of his

7

belief that they may be monitored. He also suspects that any newcomer to a

8

mosque may be an FBI informant, and has refused to be as welcoming to

9

newcomers as he believes his religion requires. This constant fear of being under

10 surveillance because of Defendants' acts has caused Malik severe and ongoing

11

anxiety and emotional distress.

12

Monteilh's Interaction with Yasser AbdelRahim

13

200. A few weeks after Monteilh took shahadah at ICOI, a group of young

14 men approached him at the mosque, said they were impressed that he attended

15

mosque so regularly and invited him to socialize with them at their house. Agents

16 Armstrong and Allen told Monteilh that the men's home was already under

17 surveillance because it was shared by five young, unmarried Muslim Egyptian men

18 with different skills and backgrounds - including a computer analyst, a

19 pharmacist, an accountant, and one who handled logistics - and that for that

20

reason they believed they might be a Muslim Brotherhood cell.

21

201. A few days after this invitation, Monteilh told Agents Armstrong and

22 Allen that one of the young men who lived at the house, Plaintiff Yasser Abdel

23

AbdelRahim, was a person who seemed to attract and have influence with young

24

Muslims. Agents Armstrong and Allen told him they thought AbdelRahim was the

25

leader of the cell, and that he should spend time at their house, and with

26 AbdelRahim in particular, and gather as much information as he could. Monteilh

27

did so, and gave recordings of all the conversations he had with AbdelRahim and

28 the other members of the house to Agents Armstrong and Allen, along with notes

-55-

Case 8:11-cv-00301-CJC-VBK Document 49-2 Filed 09/13/11 Page 8 of 29 Page ID #:666

1

about his observations.

2

202. Agents Armstrong and Allen told Monteilh to get into every room in

3

AbdelRahim' s house to see what was in there, and include that information in his

4

reports. Later, in about February or March of2007, Armstrong and Allen

5

equipped Monteilh with a video camera hidden in a shirt button and instructed him

6

to conduct video surveillance of the layout and contents of the house, which he did.

7

203. Shortly after first meeting Monteilh, AbdelRahim and one of his

8

roommates bought Monteilh some books on Islam, and later asked he what thought

9

of them. Some time after that, AbdelRahim agreed to meet with Monteilh to teach

10 him various prayers. Agents Armstrong and Allen expressed excitement at this,

11

and asked for the first sheet of paper on which AbdelRahim had written a prayer

12 for Monteilh to learn, telling him when they gave it back a few days later that they

13

had lifted AbdelRahim' s fingerprints from it.

14

204. When Monteilh reported that AbdelRahim always led prayer in the

15

house, Agents Armstrong and Allen said that showed leadership, and confirmed

16 that the surveillance should focus on him.

17

205. Pursuant to standing instructions from Agents Armstrong and Allen,

18 Monteilh gathered and provided them information about AbdelRahim' s travel

19 plans, particularly when AbdelRahim was going to or from Egypt to see his family

20 or his fiance's family. After one ofthese trips to Egypt, AbdelRahim complained

21

that he had questioned for a long time when he re-entered the country - that he

22

expected some delay but this had been way too long. Agents Armstrong and Allen

23

told Monteilh they had been responsible for that questioning.

24

206. During this time, AbdelRahim played pick-up soccer with other

25

Muslim youth. Monteilh attended some of these games and took down the license

26

plates of people who attended. On more than one occasion, he made a video

27 recording with a hidden camera Agents Armstrong and Allen provided him, in

28

order to document who was attending and socializing with one another.

-56-

Case 8:11-cv-00301-CJC-VBK Document 49-2 Filed 09/13/11 Page 9 of 29 Page ID #:667

1

207. After Monteilh learned through conversations that AbdelRahim

2

traveled to a particular city for his job, Agents Annstrong and Allen had a

3

particular group of Muslims in that city surveilled and believed he went there to

4

report or get instructions from this group. As Agents Armstrong and Allen had

5

told Monteilh to report all travel plans, he reported AbdelRahim's travel plans on

6

several occasions. Agents Armstrong and Allen told Monteilh that they had

7

AbdelRahim surveilled when he traveled, based on Monteilh' s information.

8

208. Monteilh talked to AbdelRahim about his fiancee, who lived in

9

Detroit, and her family, and transmitted what information he learned to Agents

1 0

Armstrong and Allen - including her email address.

11

· 209. On different occasions, Agents Armstrong and Allen told Monteilh

12 that the FBI had electronic listening devices in AbdelRahim's house, as well as in

13

AbdelRahim's car and phone. For example, one day, one ofMonteilh's handlers

14

called to tell him that a friend had driven up to AbdelRahim' s house quickly in an

15

agitated state, and asked Monteilh to go down there to find out what was going on.

16

When Monteilh asked how he knew this, he indicated they had video outside the

17 house. Another time, Agents Armstrong and Allen asked him about something

18 that happened inside the house that he hadn't yet put in his notes, then told him that

19 they knew because they had audio surveillance in the home.

20

210. Agents Armstrong and Allen said that AbdelRahim was donating

21

money to a charitable organization in Egypt and that these donations had been

22

tracked by the Treasury Department. They said that these donations were not

23

unlawful, but that they could make them seem suspicious in order to threaten him

24

and pressure him to provide information and become an informant.

25

211. On many Tuesday nights, an imam from the Garden Grove mosque

26

gave Arabic language teachings at ICOl. AbdelRahim often attended. On several

27

occasions, Monteilh used recording devices provided by his handlers to record

28 these teachings and the discussions afterward by going into the prayer hall to pray

-57-

Case 8:11-cv-00301-CJC-VBK Document 49-2 Filed 09/13/11 Page 10 of 29 Page ID #:668

1

near the group, then leaving his things - including the recording device (disguised

2

as a key fob or cell phone) - near to where the group was talking, and then go to

3

another part of the mosque or a different part of the prayer hall to pray. The

4

recording device would capture their conversation when Monteilh was not within

5

earshot. AbdelRahim was part of the group when Monteilh recorded on several

6

occasiOns.

7

212. On instructions from Agents Armstrong and Allen, Monteilh asked

8

AbdelRahim questions about jihad and pressed him on his views about religious

9

matters and certain religious scholars (particularly Egyptian ones) in order to get

1 0

him to say something that might be incriminating or provide a way to pressure him

11

to provide information to the FBI. AbdelRahim told Monteilh that there was more

12

to Islam than jihad: that jihad is a personal struggle, and that to the extent that

13

there is such thing as a fighting jihad, the Quran places very strict rules that

14

prohibit harming plants or trees, infants, elderly or women, and that terrorists who

15

say they are engaged injihad are committing murder. When Monteilh brought up

16

religious scholars Agents Armstrong and Allen had instructed him to mention, like

17

Hassan al-Banna and Sayid Qutb, AbdelRahim said that he did not agree with

18

them, but thought that the Egyptian government should not have executed them.

19

213. When Monteilh was reported to the FBI by Muslim community

20

members, AbdelRahim was contacted by FBI agents and met with them to offer

21

information about Monteilh and his extremist rhetoric. Upon information and

22

belief, one of these agents was Defendant Paul Allen.

23

214. A few months later, AbdelRahim unexpectedly met the same FBI

24

agents, who were waiting for him outside the office of his chiropractor. He was

25

surprised to see them there as he had scheduled an appointment with the

26

chiropractor just an hour or so prior. They went to a coffee shop and showed him a

27

search warrant and told him that his storage unit was being searched by the FBI.

28

Two days later, they met again with AbdelRahim and asked him if he knew of any

-58-

Case 8:11-cv-00301-CJC-VBK Document 49-2 Filed 09/13/11 Page 11 of 29 Page ID #:669

1

person engaged in any suspicious activity at the mosque or elsewhere. They asked

2

AbdelRahim if he minded contacting the agents if he came across any information

3

of anyone doing anything. AbdelRahim understood that they were asking him to

4

be an informant, and he refused. The FBI agents asked not to mention the offer to

5

anyone.

6

215. Since he had contact with Monteilh, AbdelRahim has also been

7

subjected to extensive secondary questioning and searches most of the times he has

8

returned to the U.S. from trips abroad. These interrogations and the fear that he

9

will be subjected to them when he travels have caused AbdelRahim severe anxiety

10

and emotional distress.

11

216. Since discovering the FBI surveilled him and the mosque he attended,

12 AbdelRahim believes that any of his communications in the mosque and over

13

telephones or email may be monitored, and indeed that he may be under

14

surveillance at any time. He also suspects that any newcomer to a mosque may be

15

an FBI informant, and has refused to be as welcoming to newcomers as he believes

16 his religion requires. This constant fear of being under surveillance because of

17 Defendants' acts has caused AbdelRahim severe and ongoing anxiety and

18

emotional distress.

19

217. Since these incidents, AbdelRahim' s confidence in the mosque as a

20

sanctuary has been ruined. He significantly decreased his attendance to mosque

21

services for fear of surveillance, and as such his donations to mosque institutions

22

also decreased. This interference with his religious practice has caused

23

AbdelRahim severe and ongoing anxiety and emotional distress.

24

CLASS ALLEGATIONS

25

218. Plaintiffs, as class representatives, bring claims for injunctive relief on

26

behalf of themselves and all similarly situated persons pursuant to Rule 23(a) and

27

(b)(2).

28

219. Plaintiffs, as class representatives, bring this action on their own

-59-

Case 8:11-cv-00301-CJC-VBK Document 49-2 Filed 09/13/11 Page 12 of 29 Page ID #:670

1

behalf and on behalf of the following class:

2

All individuals targeted by Defendants for surveillance or

3

information-gathering through Monteilh and Operation Flex, on

4

account of their religion, and about whom the FBI thereby gathered

5

personally identifiable information.

6

220. Numerosity. The size of the class makes a class action both necessary

7

and efficient. Plaintiffs estimate that the class consist of hundreds if not

8

throusands of current and former residents of Southern California. Members of the

9

class are ascertainable through a review of Defendants' files on Operation Flex, but

10

so numerous that joinder is impracticable.

11

221. Typicality. The claims of the Plaintiffs are typical of the claims of the

12

class as a whole. Each of the Plaintiffs was subjected to surveillance by

13

Defendants during the relevant period. As a result of Defendants' practices,

14

Defendants have discriminated against each of Plaintiffs on the basis of their

15

religion and religious practices, in violation oflaw. The unlawful policies and

16

practices that have operated to discriminate against the Plaintiffs are typical of the

17

unlawful practices that operated to discriminate against other class members so as

18

to unlawfully target them for surveillance because of their religion and religious

19

practices.

20

222. Common Questions ofLaw and Fact. This case poses common

21

questions of law and fact affecting the rights of all members of the class, including,

22

but not limited to:

23

a. Whether Defendants engaged in a program of conducting

surveillance of mosques in Orange County, and the Plaintiffs

24

and class members who attended those mosques;

25

b. Whether Defendants targeted Plaintiffs and class members for

26

surveillance through Monteilh because they were Muslims or

27

because of their practice of Islam;

28

c. Whether Defendants' practice of targeting Plaintiffs and class

-60-

Case 8:11-cv-00301-CJC-VBK Document 49-2 Filed 09/13/11 Page 13 of 29 Page ID #:671

1

members for surveillance because they were Muslim or because

2

of their practice of Islam constitutes impermissible religious discrimination under the First Amendment;

3

d. Whether Defendants' practice of targeting Plaintiffs and class

4

members for surveillance because they were Muslim or because

5

of their practice of Islam violates the guarantee of equal

protection of the laws under the Fifth Amendment;

6

7

e. Whether Defendants' practice of targeting Plaintiffs and class members for surveillance because they were Muslim or because

8

of their practice of Islam places a substantial burden on the

9

religious exercise of Plaintiffs and class members under the

First Amendment;

10

f. Whether Defendant FBI maintains records on Plaintiffs and

11

class members, arising out of the investigation at issue,

12

describing how they exercise rights guaranteed by the First

Amendment; 13

14

g. Whether the maintenance by Defendant FBI of records on Plaintiffs and class members describing how they exercise

15

rights guaranteed by the First Amendment is pertinent to and

16

within the scope of lawful, authorized law enforcement activity;

17

h. Whether information gathered by Defendants pursuant to

unlawful surveillance should be disgorged and purged from

18

their files;

19 I. Whether Defendants conspired for the purpose of depriving

20

Plaintiffs and other class members of their rights for purposes

21

of 42 U.S.C. § 1985;

22

J. Whether and what kinds of declaratory and injunctive relief are

appropriate. 23

24

223. Adequacy ofClass Representation. Plaintiffs can adequately and

25

fairly represent the interests of the class as defined above, because their individual

26

interests are consistent with, and not antagonistic to, the interests of the class.

27

224. Adequacy ofCounsel for the Class. Counsel for Plaintiffs possess the

28

requisite resources and abiiity to prosecute this case as a class action and are

- 61 -

Case 8:11-cv-00301-CJC-VBK Document 49-2 Filed 09/13/11 Page 14 of 29 Page ID #:672

1

experienced civil rights attorneys who have successfully litigated other cases

2

involving similar issues.

3

225. Propriety ofClass Action Mechanism. Class certification is

4

appropriate because the prosecution of separate actions against Defendants by

5

individual class members would create a risk of inconsistent or varying

6

adjudications that would establish incompatible standards of conduct for

7

Defendants and because Defendants have acted or refused to act on grounds that

8

apply generally to the class.

9

CLAIMS FOR RELIEF

10

First Cause of Action

11

Violation of the First Amendment Establishment Clause

12

Claim under Bivens; 28 U.S.C. § 1331

13

(Against All Defendants except the FBI and United States by all Plaintiffs.)37

14

226. Plaintiffs incorporate Paragraphs 1-225 as if fully set forth herein.

15

227. As set forth above, Defendants engaged in a scheme to target

16

Plaintiffs for surveillance because of Plaintiffs' adherence to and practice of the

17

religion of Islam. This scheme discriminates against Muslims, in violation ofthe

18

Establishment Clause of the First Amendment to the United States Constitution.

19

Second Cause of Action

20

Violation of the First Amendment Establishment Clause

21

Claim under 42 U.S.C. § 1985(3); 28 U.S.C. § 1343

22

(Against Individual Capacity Defendants by all Plaintiffs.)

23

228. Plaintiffs incorporate Paragraphs 1-227 as if fully set forth herein.

24

229. As set forth above, Defendants engaged in a scheme to target

25

26

37 Plaintiffs' claims for damages under Bivens are made against those Defendants

27

named in their individual capacities, while their claims for injunctive relief under

Section 1331 are made against Defendants named in their official capacities.

28

- 62-

Case 8:11-cv-00301-CJC-VBK Document 49-2 Filed 09/13/11 Page 15 of 29 Page ID #:673

1

Plaintiffs for surveillance because of Plaintiffs' adherence to and practice of the

2

religion of Islam and for the purpose of discriminating against Plaintiffs, as

3

Muslims, in violation of the Establishment Clause of the First Amendment to the

4

United States Constitution.

5

230. Through their scheme, Defendants conspired, and conspired to go in

6

disguise on the premises of another, for the purpose of depriving Plaintiffs, directly

7

or indirectly, of the equal protection of the laws, and of equal privileges and

8

immunities under the laws, because of their adherence to and practice of Islam.

9

Defendants performed these acts with discriminatory animus against Muslims.

10

Third Cause of Action

11

Violation of the First Amendment Free Exercise Clause

12

Claim under Bivens; 28 U.S.C. § 1331

13

(Against All Defendants except the FBI and United States by all Plaintiffs.)

14

231. Plaintiffs incorporate Paragraphs 1-230 as if fully set forth herein.

15

232. As set forth above, Defendants engaged in a scheme to target

16

Plaintiffs for surveillance because of Plaintiffs' adherence to and practice of the

17 religion of Islam. This scheme discriminates against Muslims, in violation of the

18

Free Exercise Clause of the First Amendment to the United States Constitution.

19

233. As set forth above, Defendants' surveillance placed a substantial

20

burden on Plaintiffs' religious exercise in their practice of Islam and is justified by

21

no legitimate government interest.

22

Fourth Cause of Action

23

Violation of the First Amendment Free Exercise Clause

24

Claim under 42 U.S.C. § 1985(3); 28 U.S.C. § 1343

25

(Against Individual Capacity Defendants by all Plaintiffs.)

26

234. Plaintiffs incorporate Paragraphs 1-233 as if fully set forth herein.

27

235. As set forth above, Defendants engaged in a scheme to target

28

Plaintiffs for surveillance because of Plaintiffs' adherence to and practice of the

-63-

Case 8:11-cv-00301-CJC-VBK Document 49-2 Filed 09/13/11 Page 16 of 29 Page ID #:674

1

religion of Islam and for the purpose of discriminating against Plaintiffs, as

2

Muslims in violation of the Free Exercise Clause of the First Amendment to the

3

United States Constitution.

4

236. As set forth above, Defendants' surveillance placed a substantial

5

burden on Plaintiffs' religious exercise in their practice of Islam and is justified by

6

no legitimate government interest.

7

237. Defendants have conspired, and conspired to go in disguise on the

8

premises of another, for the purpose of depriving Plaintiffs, directly or indirectly,

9

of the equal protection of the laws, and of equal privileges and immunities under

10

the laws, because of their adherence to and practice of Islam. Defendants

11

performed these acts with discriminatory animus against Muslims.

12

Fifth Cause of Action

13

Violation of Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1

14

(Against All Defendants by all Plaintiffs.)

15

238. Plaintiffs incorporate Paragraphs 1-237 as if fully set forth herein.

16

239. The actions of Defendants substantially burdened Plaintiffs' exercise

17

of religion, and are neither in furtherance of a compelling governmental interest

18

nor the least restrictive means of furthering any compelling governmental interest.

19

Sixth Cause of Action

20

Violation of Fifth Amendment Equal Protection Clause

21

Claim under Bivens; 28 U.S.C. § 1331

22

(Against All Defendants except the FBI and United States by all Plaintiffs.)

23

240. Plaintiffs incorporate Paragraphs 1-239 as if fully set forth herein.

24

241. As set forth above, Defendants have engaged in a scheme to target

25

Plaintiffs for surveillance because of Plaintiffs' adherence to and practice of the

26

religion of Islam. This scheme discriminates against Muslims, in violation of the

27

Equal Protection Clause ofthe Fifth Amendment to the United States Constitution.

28

-64-

Case 8:11-cv-00301-CJC-VBK Document 49-2 Filed 09/13/11 Page 17 of 29 Page ID #:675

1

Seventh Cause of Action

2

Violation of the Equal Protection Clause

3

Claim under 42 U.S.C. § 1985(3); 28 U.S.C. § 1343

4

(Against Individual Capacity Defendants by all Plaintiffs.)

5

242. Plaintiffs incorporate Paragraphs 1-241 as if fully set forth herein.

6

243. As set forth above, Defendants have engaged in a scheme to target

7

Plaintiffs for surveillance because of Plaintiffs' adherence to and practice of the

8

religion of Islam. This scheme discriminates against Muslims, in violation of the

9

Equal Protection Clause of the Fifth Amendment to the United States Constitution.

10

244. Defendants have conspired, and conspired to go in disguise on the

11

premises of another, for the purpose of depriving Plaintiffs, directly or indirectly,

12

of the equal protection of the laws, and of equal privileges and immunities under

13

the laws, because oftheir adherence to and practice of Islam. Defendants

14

performed these acts with discriminatory animus against Muslims.

15

Eighth Cause of Action

16

Violation of the Privacy Act, 5 U.S.C. § 552a(a)-(l)

17

(Against Defendant FBI by all Plaintiffs.)

18

245. Plaintiffs incorporate Paragraphs 1-244 as if fully set forth herein.

19

246. Defendant FBI, through Monteilh, collected and maintained records

20

describing how Plaintiffs exercised their First Amendment rights, in violation of

21

5 U.S.C. §552a(e)(7). Collection and maintenance of these records is not expressly

22

authorized by statute, not authorized by Plaintiffs, and is neither pertinent to nor

23

within the scope of an authorized law enforcement activity.

24

247. Defendant FBI's collection and maintenance of records of Plaintiffs'

25

First Amendment activities was intentional and willful, insofar as Defendants

26

gathered the information for the purpose of collecting and maintaining records of

27

Plaintiffs' First Amendment activities.

28

248. On or about September 6 and 12, 2011, Plaintiffs submitted letters to

-65-

Case 8:11-cv-00301-CJC-VBK Document 49-2 Filed 09/13/11 Page 18 of 29 Page ID #:676

1

the FBI requesting that the FBI disclose all records in the possession of the FBI,

2

associated with each Plaintiff, that were "gathered through the surveillance of

3

former FBI informant Craig Monteilh and/or Operation Flex, as well as any

4

information derived from that information." The letters also requested that the FBI

5

"expunge all records associated with [Plaintiffs] that describe the exercise of [their]

6

rights under the First Amendment of the United States Constitution that were

7

gathered through the surveillance of former FBI informant Craig Monteilh and/or

8

Operation Flex, as well as any records derived from that information." The FBI

9

has to date failed to provide Plaintiffs with those records or otherwise to respond to

10

their requests.

11

249. Defendant FBI has failed to disclose records as required by Section

12

552a(d)(l). The records requested are not exempt from disclosure pursuant to

13

Section 552aG-k) or any other applicable law.

14

Ninth Cause of Action

15

Violation of the Fourth Amendment

16

Claim under Bivens; 28 U.S.C. § 1331.

17

(Against All Defendants except the FBI and United States by all Plaintiffs.)

18

250. Plaintiffs incorporate Paragraphs 1-249 as if fully set forth herein.

19

251. Defendants' actions as set forth above constitute unreasonable

20

searches in violation of the Fourth Amendment to the United States Constitution,

21

including but not limited to Defendants' actions in audio recording Plaintiffs'

22

communications without a warrant and where no party to the communication

23

consented to the recording; video recording in homes and other places where

24

Plaintiffs had a reasonable expectation of privacy against video recording; and

25

entering and planting electronic listening devices in mosques without a warrant.

26

27

28

-66-.

Case 8:11-cv-00301-CJC-VBK Document 49-2 Filed 09/13/11 Page 19 of 29 Page ID #:677

1

Tenth Cause of Action

2

Violation of the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1810

3

(Against All Defendants by all Plaintiffs.)

4

252. Plaintiffs incorporate Paragraphs 1-251 as if fully set forth herein.

5

253. Defendants, under color of law, acting through Monteilh, used

6

electronic, mechanical, and/or other surveillance devices, without a warrant, to

7

monitor Plaintiffs and their communications and/or activities, and to acquire

8

information under circumstances in which Plaintiffs had a reasonable expectation

9

of privacy and a warrant would be required for law enforcement purposes.

10

Eleventh Cause of Action

11

Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq.

12

(Against Defendant United States by all Plaintiffs.)

13

254. Plaintiffs incorporate Paragraphs 1-253 as if fully set forth herein.

14

255. At all times relevant to the complaint, Defendants Armstrong, Allen,

15

Rose, Tidwell and Walls, were employees of the United States, acting in the scope

16

of their employment through their own actions and their directions to employees

17

and agents, under circumstances that would render the United States, if a private

18

person, liable for damages that their actions caused Plaintiffs under California law.

19

The United States is therefore liable to Plaintiffs, as follows, pursuant to 28 U.S.C.

20

§§ 1346(b) and 2674.

21

256. The United States, if a private person, would be liable to Plaintiffs for

22

invasion of privacy under California law. Defendants' acts in conducting audio

23

and video surveillance of Plaintiffs, through Monteilh and Operation Flex, in

24

situations in which Plaintiffs' had a reasonable expectation of privacy, constitute

25

intrusions into a private place or matter in a manner highly offensive to a

26

reasonable person.

27

257. The United States, if a private person, would be liable to Plaintiffs for

28

violations of the California constitutional right of privacy set forth in Article 1,

-67-

Case 8:11-cv-00301-CJC-VBK Document 49-2 Filed 09/13/11 Page 20 of 29 Page ID #:678

1

section 1 of the California constitution. Defendants' conduct in conducting audio

2

and video surveillance of Plaintiffs, both through Monteilh and Operation Flex, in

3

situations in which Plaintiffs' had a reasonable expectation of privacy, and in

4

compiling and maintaining information on Plaintiffs based solely on their religion

5

and religious practice, amounts to a serious invasion of their rights to privacy.

6

258. The United States, if a private person, would be liable to Plaintiffs for

7

violations of California Civil Code section 52.1. By subjecting Plaintiffs to

8

constant surveillance because of their religion, then publicly revealing that

9

surveillance, Defendants have interfered, or attempted to interfere, by threats,

10

intimidation, or coercion with the exercise or enjoyment by Plaintiffs of their rights

11

to practice their religion and to be free from religious discrimination under the

12

California Constitution, in violation of California Civil Code § 52.1.

13

259. The United States, if a private person, would be liable to Plaintiffs for

14

the intentional infliction of emotional distress under California law. Defendants'

15

acts constitute extreme and outrageous conduct, in which they engaged with the

16

intention of causing, or a reckless disregard for the probability of causing,

17

emotional distress in plaintiffs; which was the actual or proximate cause of severe

18

or extreme emotional distress that Plaintiffs have suffered.

19

260. Plaintiffs presented the FBI with notification of the above-alleged

20

incidents and claims for monetary damages in claims sent to the FBI using

21

Standard Form 95 on or about February 21, 2011. The FBI failed to make any

22

response to Plaintiffs' claims within six months after they were filed.

23

PRAYER FOR RELIEF

24

Wherefore, Plaintiffs respectfully request that the Court grant the following

25

relief:

26

a. Certify a Class under Rule 23(b)(2), as described above;

27

b. Injunctive relief on behalf of Plaintiffs and all other putative class

28

members ordering Defendants to destroy or return any information

-68-

Case 8:11-cv-00301-CJC-VBK Document 49-2 Filed 09/13/11 Page 21 of 29 Page ID #:679

1

gathered through the unlawful surveillance program by Monteilh

2

and/or Operation Flex described above, and any information derived

3

from that unlawfully obtained information, as well as to comply with

4

their obligations under the Privacy Act, 5 U.S.C. § 552a;

5

c. Compensatory and punitive damages for violations of the laws of the

6

United States and California, in an amount to be proven at trial;

7

d. Liquidated damages in an amount to be proven at trial pursuant to 50

8

U.S.C. §§ 1810(a), 1828(a), and California Civil Code§§ 52(a),

9

52.l(b);

10

e. Reasonable attorneys' fees and costs;

11

f. Any other relief as this Court deems proper and just.

12

13

Dated: September 13, 2011 Respectfully Submitted,

14

ACLU FOUNDATION OF SOUTHERN

CALIFORNIA

15 COUNCIL ON AMERICAN-ISLAMIC

16

RELATIONS, CALIFORNIA

17

HADSELL STORMER KEENY RICHARDSON

18

&RENICKLLP

19

20

21

22

23

24

25

26

27

28

-69-

Case 8:11-cv-00301-CJC-VBK Document 49-2 Filed 09/13/11 Page 22 of 29 Page ID #:680
ATTACHMENT
1

Case 8:11-cv-00301-CJC-VBK Document 49-2 Filed 09/13/11 Page 23 of 29 Page ID
· ,, ·'' Case 8:10-cv-00102-JVS-RNB Document#8:698-91 Filed 02/15t11 Page 1 of 5 Page 10 #:1600

l_-··- ·---~··~ .... ···---.·--.. ·' .---· ,_ ~- .

(.I'

2

3

4

5

6

7

8

SUPERIOR COURT OF THE STATE OF CALIFORNIA

9

COUNTY OF LOS ANGELES - WEST COVINA BRANCH

10 DEPARTMENT 8

HON. ABRAHAM KHAN, JUDGE

11

12 THE PEOPLE OF THE STATE OF CALIFORNIA,

"13

.~ PLAfthiFF;

14

vs.

15 CRAIG F. MONTEILH,

16

DEFENDANT.

17

) ) ) )
) NO. KA059040 ) PROBATION TERMINATION
) ) )

18

WEST COVINA, CALIFORNIA; AUGUST 20, 2008

19

2:40 P.M.

20

UPON THE ABOVE DATE, THE DEFENDANT NOT

21

BEING PRESENT IN COURT AND NOT REPRESENTED BY

22

COUNSEL; THE PEOPLE BEING REPRESENTED BY LINDA

23

CHILSTROM, DEPUTY DISTRICT ATTORNEY OF

24

LOS ANGELES COUNTY, THE FOLLOWING PROCEEDINGS

25

WERE HELD:

26

(DIANA WHITESEL, CSR #6287, OFFICIAL REPORTER.)

27

28

I g~.~yrs0r=~~:, ~~.!'"'\~.~1 -- ~ · ~"' "1Attachment 1 -page 70

Case 8:11-cv-00301-CJC-VBK Document 49-2 Filed 09/13/11 Page 24 of 29 Page ID
Case 8:1 0-cv-001 02-JVS-RNB Document#8:96-892 Filed 02/15t11 Page 2 of 5 Page ID #:1601

I C~SE 1

J;.UMBER: -·-

\' !

2 CASE NAME:

KA059040 PEOPLE OF THE STATE OF CALIFORNIA

3

VS. CRAIG MONTEILH

4 WEST COVINA, CALIFORNIA

AUGUST 20, 2007

5 DEPARTMENT NO. 8

HON. ABRAHAM KHAN, JUDGE

6 REPORTER:

DIANA WHITESEL, CSR NO. 6287

7 TIME:

2:40 P.M.

8 APPEARANCES:

9

(LINDA CHILSTROM, DEPUTY DISTRICT ATTORNEY

10

OF LOS ANGELES COUNTY.)

11

-000-

12

13

THE CLERK: PEOPLE ARE GOING TO MOVE TO MAKE A MOTION TO

14 TERMINATE PROBATION.

15

THE COURT: CRAIG F. MONTEILH. KA059040.

16

MS. CHILSTROM: YOUR HONOR, I HAVE BEEN INFORMED BY

17 MR. SATO OF MY OFFICE THAT HEAD DEPUTY SCOTT CARBAUGH HAS

18 REQUESTED THAT THIS CASE -- THAT THE PROBATION IN THIS MATTER BE

19 TERMINATED.

20

THE COURT: CAN YOU GIVE ME A REASON?

21

MS. CHILSTROM: I DON'T KNOW A REASON. I WAS JUST TOLD IT

22 WAS UPON THE REQUEST OF THE HEAD DEPUTY.

23

THE COURT: I'M GOING TO CONTINUE THIS UNTIL TOMORROW

24 UNTIL YOU CAN GIVE ME A REASON. I USUALLY DON'T TERMINATE

25 PROBATION UNLESS THERE IS SOMETHING I CAN RELY ON.

26

MS. CHILSTROM: NOT A PROBLEM.

27

I TAKE IT, WE'RE WAITING FOR MR. LINDARS.

28

MAY I MAKE A QUICK CALL?

2

I !Attachment 1 -page 71

Case 8:11-cv-00301-CJC-VBK Document 49-2 Filed 09/13/11 Page 25 of 29 Page ID
Case 8:10-cv-00102-JVS-RNB Documen#t 8:698-93 Filed 02/15/11 Page 3 of 5 Page ID #:1602

1

(PAUSF TN PROCFED.JMGS.)

2

3

MS. CHILSTROM: YOUR HONOR, COULD THE COURT RECALL THE

4 LAST CASE?

5

THE COURT: OKAY. WE'RE STILL ON THE RECORD IN CRAIG F.

6 MONTEILH.

7

MS. CHILSTROM: YOUR HONOR, I JUST SPOKE WITH MR. SATO.

8 INITIALLY I WAS JUST TOLD THAT THE HEAD DEPUTY WANTED THE

9 PROBATION TERMINATED.

10

APPARENTLY THE DEFENDANT IS WORKING WITH F.B.I. AGENT

11 KEVIN ARMSTRONG. HE HAS GIVEN AGENT ARMSTRONG VERY, VERY

12 VALUABLE INFORMATION THAT HAS PROVEN TO BE ESSENTIAL IN AN F.B.I.
13 PROSECUTION. II WAS AGENT ARMSTRONG THAT CONTACTED THE HEAD

14 DEPUTY AND THE HEAD DEPUTY INSTRUCTED US TO ASK FOR TERMINATION.

15

THE COURT: WELL, OKAY. I KNOW THE DEFENDANT HIMSELF WAS

16 HERE IN APRIL AND HAD REQUESTED EARLY TERMINATION. AND I BELIEVE

17 ON RECOMMENDATION OF THE DISTRICT ATTORNEY, I DENIED HI~ REQUEST.

18 AND THAT WAS BACK IN APRIL. THAT'S WHY I WANTED TO FIND OUT WHAT

19 THE REASONS WHY WERE AT THIS TIME BECAUSE IT'S ONLY BEEN FOUR

2 0 MONTHS AFTER.

21

BUT OTHERWISE HE'S PAID HIS FINANCIAL OBLIGATION AND

22 HE'S OTHERWISE BEEN ON PROBATION -- HOW LONG HAS HE BEEN ON?

23 IT'S KA059040. IS THAT '03?

24

MS. CHILSTROM: IT IS '03, YOUR HONOR.

25

THE CLERK: YES, YOUR HONOR, SINCE MAY 5, '03.

26

THE COURT: ALL RIGHT. APPARENTLY HE'S HAD PROBATION

27 EXTENDED. IT MAY HAVE BEEN BECAUSE OF A WARRANT THAT HAD BEEN 28 ISSUED WHICH IT WOULD OTHERWISE TOLL THE RUNNING OF HIS PERIOD.

3

I I Attachment 1 - page 72

Case 8:11-cv-00301-CJC-VBK Document 49-2 Filed 09/13/11 Page 26 of 29 Page ID . Case 8:10-cv-00102-JVS-RNB Document#8:96-894 Filed 02/15/11 Page 4 of 5 Page ID
#:1603

J

2

MS. CHILSTROM: THANK YOU.

3

4

(THE PROCEEDINGS IN THE ABOVE-ENTITLED

5

MATTER WERE ADJOURNED.)

6

7

-000-

8

9

10

11

12

14 15 16 17 18 19 20 21 22 23
24 25 26
27
28

4

I I Attachment 1 - page 73

Case 8:11-cv-00301-CJC-VBK Document 49-2 Filed 09/13/11 Page 27 of 29 Page ID Case 8:1 0-cv-001 02-JVS-RNB Document#8:69-895 Filed 02/15/11 Page 5 of 5 Page ID #:1604

FOR THE COUNTY OF LOS ANGELES - WEST COVINA BRANCH

3 DEPARTMENT 8

HON. ABRAHAM KHAN, JUDGE

4 THE PEOPLE OF THE STATE OF CALIFORNIA,
5
PLAINTIFF, 6
vs.
7 CRAIG F. MONTEILH,
8
DEFENDANT. 9

) ) ) )
) NO. KA059040
)
) REPORTER'S ) CERTIFICATE
)

I ·"

10

11

12

I, DIANA WHITESEL, CSR NO. 6287, OFFICIAL REPORTER OF THE

13 ,.. suPERioR couRr oF T~H: ·sTATE oF cALIFbRNIA, FoR rH!:"·co-uNn bF

(

14 LOS ANGELES, DO HEREBY CERTIFY THAT THE FOREGOING IS A TRUE AND

15 CORRECT TRANSCRIPT OF ALL OF THE ADMONITIONS TAKEN AT THE TIME OF

16 THE TAKING OF THE PLEA AND PRONOUNCEMENT OF SENTENCE IN THE

17 ABOVE-ENTITLED CAUSE; AND FURTHER THAT THE VIEWS AND

18 RECOMMENDATIONS OF THE COURT, IF ANY, ARE CONTAINED THEREIN

19 PURSUANT TO SECTION 1203.01 OF THE PENAL CODE THE ABOVE-ENTITLED

20 MATTER.

21

22

23

DATED THE DECEMBER 2, 2009

24

25

26 27

~~, CSR NO. 6287
DIANA WHITESEL, OFFICIAL RE ORTER

28

5

I I Attachment 1 - page 74

Case 8:11-cv-00301-CJC-VBK Document 49-2 Filed 09/13/11 Page 28 of 29 Page ID #:686
ATTACHMENT
2

CaJs~ea~8~:1W1¥-bc-vd-~0~0o3d0110-2C-JJCVS-V~~BlK<i~DDooccuummeenntt#48:969-8-247

Filed 09/13/11 Page 29 of 29 Page ID
Filed 0211 ot11 19a~~ tft41 Pagg0rb

#:1582

·---"=-··--=···,u:s-tJ>eiiartD:fciifotJ'usfi"ce :.-=:.·.,:=.::-.:,-"-::"' ----•:::. ·-!·-- :-.--"- ._.,_,- ··>

..,....'.,_, c-.:.........,...,..~- . ·.-....·.~ _, -·~ ..................... -. '• -· •

.. •

Federal Bureau of Investigation

Adam J. Krolikowski, Esq. Woods & Krolikowski 1200 Main Street, -Suite H Irvine, CA 92614

WUBbington, 0. C. ZOS3S-0001
June 16,2010

RE: Craig Mo-nteilh [Co-nfidential Communication) Compliance with NQA Notice Regu;remept
Dear Mr. Krolikowski:

This office is in receipt of your letter to Steven Kramer dated June 15, 2010. In your letter you state that Mr. MontieTh has "been asked to review and sign declarations prepared by the ACLU for a lawsuit they will be filing concerning civil rights violations by the FBI within the Islamic Community during the time period of Operation Flex." I am aware that you have sent previous letters to the FBI concerning the Non-Disclosure Agreement that Mr. Monteilh signed
--on October 5-, 2007;noweVer; this iS'ilie first letter in which you reference a particularWI·· '
operation or investigation. In advance of June 17, 2010, please provide us with any information that you intend to include in these declarations that is/or may be covered by the Non-Disclosure Agreement The FBI maintains that all the obligations created under the Non-Disclosure Agreement remain in effect. Notification by Mr. Monteilh that he intends to disclose information covered by this agreement does not limit or nullify the obligations that he accepted by signing this agreement

-. '!f

•

~y/2;2-?>
Henry R. Felix Associate General Counsel Civil Litigation Unit II Office of the General Counsel Federal Bureau of Investigation PA400 935 Pennsylvania Ave., NW Washington, D.C. 20535 · Phone: 202·220-9328 Fax: 202-220·9355

TOTAL P.004 ,..A.1 -tt-ac_h_m-en-t-2-_p-a-ge-7"""5...,1

 
 FAZAGA v. F.B.I.
Cite as 965 F.3d 1015 (9th Cir. 2020)

1015

§ 1983 constitutional claims for failure to state a claim for relief.5
AFFIRMED.
,
Yassir FAZAGA; Ali Uddin Malik; Yasser Abdelrahim, PlaintiffsAppellees, v.
FEDERAL BUREAU OF INVESTIGATION; Christopher A. Wray, Director of the Federal Bureau of Investigation, in his official capacity; Paul Delacourt, Assistant Director in Charge, Federal Bureau of Investigation’s Los Angeles Division, in his official capacity; Pat Rose; Kevin Armstrong; Paul Allen, Defendants, and
Barbara Walls; J. Stephen Tidwell, Defendants-Appellants.
Yassir Fazaga; Ali Uddin Malik; Yasser Abdelrahim, PlaintiffsAppellees,
v.
Federal Bureau of Investigation; Christopher A. Wray, Director of the Federal Bureau of Investigation, in his official capacity; Paul Delacourt, Assistant Director in Charge, Federal Bureau of Investigation’s Los Angeles Division, in his official capacity; J. Stephen Tidwell; Barbara Walls, Defendants,
and

Pat Rose; Kevin Armstrong; Paul Allen, Defendants-Appellants.
Yassir Fazaga; Ali Uddin Malik; Yasser Abdelrahim, PlaintiffsAppellants,
v.
Federal Bureau of Investigation; Christopher A. Wray, Director of the Federal Bureau of Investigation, in his official capacity; Paul Delacourt, Assistant Director in Charge, Federal Bureau of Investigation’s Los Angeles Division, in his official capacity; J. Stephen Tidwell; Barbara Walls; Pat Rose; Kevin Armstrong; Paul Allen; United States of America, Defendants-Appellees.
No. 12-56867, No. 12-56874, No. 13-55017
United States Court of Appeals, Ninth Circuit.
Argued and Submitted December 7, 2015 Pasadena, California
Amended February 28, 2019
Filed July 20, 2020
Background: Muslim individuals filed putative class action against Federal Bureau of Investigation (FBI), the United States, two FBI officials in their official capacities, and five FBI agents in their individual capacities, alleging that covert surveillance program conducted by confidential informant violated Free Exercise Clause, Establishment Clause, Due Process Clause’s equal protection guarantee, Fourth Amendment, Religious Freedom Restoration Act (RFRA), Privacy Act, Foreign Intelligence Surveillance Act (FISA), and Federal Tort Claims Act (FTCA). The

5. Heineke’s contention that it is inappropriate to dismiss his § 1983 constitutional claims at the motion to dismiss stage, is unpersuasive. We have accepted his allegations as true. Because he has failed to plead any allegations

sufficient to support his argument that SCU acted under color of state law, however, his § 1983 claims must fail as a matter of law. The district court did not err in granting the motion to dismiss.

1016

965 FEDERAL REPORTER, 3d SERIES

United States District Court for the Central District of California, No. 8:11-cv00301-CJC-VBK, Cormac J. Carney, J., dismissed all claims except FISA claim pursuant to state secrets privilege, 884 F.Supp.2d 1022, but denied qualified immunity on FISA claim, 885 F.Supp.2d 978. Parties appealed.
Holdings: On denial of rehearing en banc, the Court of Appeals, Berzon, Circuit Judge, held that:
(1) plaintiffs lacked reasonable expectation of privacy in conversations recorded by informant to which he was party;
(2) agents were entitled to qualified immunity from liability under FISA based on recordings of conversations in mosque prayer hall;
(3) agents were not entitled to qualified immunity from liability under FISA based on recordings made by concealed devices;
(4) plaintiffs pled plausible FISA claims against agents;
(5) supervisory officials were not subject to liability under FISA;
(6) district court erred in dismissing Fourth Amendment claims against agents on basis of state secrets privilege;
(7) plaintiffs were ‘‘aggrieved persons’’ within scope of FISA’s minimization procedure;
(8) Privacy Act precluded Bivens remedy against agents based on their collection and retention of records;
(9) RFRA did not preclude Bivens remedy against agents for violations of Free Exercise Clause, Establishment Clause, and Due Process Clause’s equal protection guarantee;
(10) agents were entitled to qualified immunity from liability under federal civil rights conspiracy statute;
(11) agents were entitled to qualified immunity from liability on claim that

surveillance violated plaintiffs’ free exercise rights under RFRA; and
(12) FTCA’s judgment bar provision did not preclude plaintiffs’ claims against United States for invasion of privacy and intentional infliction of emotional distress.
Affirmed in part, reversed in part, and remanded; petitions for rehearing and rehearing en banc denied.
Opinion, 916 F.3d 1202, superseded.
Gould and Berzon, Circuit Judges, filed opinion concurring in denial of rehearing en banc, in which Wardlaw, Fletcher, and Paez, Circuit Judges, joined.
Steeh, Senior District Judge, filed statement regarding denial of rehearing en banc.
Bumatay, Circuit Judge, filed opinion dissenting from denial of rehearing en banc, in which Callahan, Ikuta, Bennett, Ryan D. Nelson, Bade, Lee, VanDyke, Circuit Judges, joined, and Collins and Bress, Circuit Judges, joined in part.
1. Constitutional Law O3861 Liberty protected by Fifth Amend-
ment’s Due Process Clause contains within it prohibition against denying to any person equal protection of laws. U.S. Const. Amend. 5.
2. Civil Rights O1376(1, 2) Government officials are entitled to
qualified immunity from damages unless plaintiffs plead facts showing that: (1) officials violated statutory or constitutional right, and (2) that right was clearly established at time of challenged conduct.
3. Civil Rights O1376(2) For purposes of qualified immunity,
right is ‘‘clearly established’’ if, at time of challenged conduct, right’s contours are sufficiently clear that every reasonable of-

FAZAGA v. F.B.I.
Cite as 965 F.3d 1015 (9th Cir. 2020)

1017

ficial would have understood that what he is doing violates that right.
See publication Words and Phrases for other judicial constructions and definitions.
4. Civil Rights O1376(2) Inquiry as to whether right is ‘‘clearly
established,’’ for qualified immunity purposes, must be undertaken in light of case’s specific context, not as broad general proposition.
5. Civil Rights O1376(2) In order to find that right is ‘‘clearly
established’’ for qualified immunity purposes, case directly on point is not required, but existing precedent must have placed statutory or constitutional question beyond debate.
6. Civil Rights O1376(2) Where right at issue is clear and spe-
cific, officials may not claim qualified immunity based on slight changes in surrounding circumstances.
7. Searches and Seizures O26 For Fourth Amendment purposes, a
reasonable expectation of privacy exists where person has exhibited actual subjective expectation of privacy, and expectation is one that society is prepared to recognize as reasonable. U.S. Const. Amend. 4.
8. Searches and Seizures O26 Under ‘‘invited informer doctrine,’’ in-
dividual generally has no privacy interest, for Fourth Amendment purposes, in that which he voluntarily reveals to government agent. U.S. Const. Amend. 4.
See publication Words and Phrases for other judicial constructions and definitions.
9. Searches and Seizures O26 Government’s bad faith in conducting
undercover operation does not implicate reasonable privacy expectation protected by Fourth Amendment or violate Fourth Amendment’s warrant requirement. U.S. Const. Amend. 4.

10. Searches and Seizures O13.1
Undercover operations, in which agent is so-called invited informer, are not ‘‘searches’’ under Fourth Amendment. U.S. Const. Amend. 4.
See publication Words and Phrases for other judicial constructions and definitions.
11. Searches and Seizures O26
Telecommunications O1440
Under invited informer doctrine, Muslim individuals lacked reasonable expectation of privacy in conversations recorded by undercover informant for FBI to which he was party, and thus FBI agents who supervised informant were not subject to liability under Foreign Intelligence Surveillance Act (FISA), even if informant was used to infiltrate organization engaging in protected First Amendment activities. U.S. Const. Amends. 1, 4.; Foreign Intelligence Surveillance Act of 1978 §§ 109, 110, 50 U.S.C.A. §§ 1809, 1810.
12. United States O1475(2)
It was not clearly established in 2006 and 2007 that individuals generally had reasonable expectation of privacy from surveillance in places of worship, and thus FBI agents who covertly recorded conversations in mosque prayer hall were entitled to qualified immunity from liability under Foreign Intelligence Surveillance Act (FISA), even though mosque attendees had privacy-grounded reasonable expectation that their conversations in hall would not be covertly recorded by person who was not present, where, at time in question, there were no federal or state court decisions finding reasonable expectation of privacy at worship services open to public. Foreign Intelligence Surveillance Act of 1978 §§ 109, 110, 50 U.S.C.A. §§ 1809, 1810.

1018

965 FEDERAL REPORTER, 3d SERIES

13. Searches and Seizures O26 Mosque attendees’ subjective expecta-
tion of privacy in their conversations in mosque prayer hall was reasonable, for Fourth Amendment purposes, even though many people worshipped in mosque; prayer hall was site of religious worship in which gossiping, eavesdropping, or talebearing was forbidden, mosque specifically prohibited audio and video recording without permission, and there were no urgent health or safety needs justifying surveillance. U.S. Const. Amend. 4.
14. Searches and Seizures O25.1 Where materials sought to be seized
may be protected by First Amendment, Fourth Amendment’s requirements must be applied with scrupulous exactitude. U.S. Const. Amends. 1, 4.
15. United States O1475(2) It was clearly established in 2006 and
2007 that individuals had reasonable expectation of privacy from covert recording of conversations in their homes, cars, and offices, and on their phones, and thus FBI agents were not entitled to qualified immunity from liability under Foreign Intelligence Surveillance Act (FISA) based on recordings made by devices they planted in imam’s office and Muslim individual’s house, car, and phone. Foreign Intelligence Surveillance Act of 1978 §§ 109, 110, 50 U.S.C.A. §§ 1809, 1810.
16. Telecommunications O1436 Imam and Muslim individual pled
plausible claims against FBI agents under Foreign Intelligence Surveillance Act (FISA) by alleging that covert recording devices had been planted in imam’s office and in individual’s home, that agents told confidential informant that electronic surveillance was spread indiscriminately across at least eight area mosques, that agents had instructed informant to use video camera hidden in shirt button to record mosque’s interior, that agents told

informant they had used that information to enter mosque, and that agents told informant that they had audio surveillance in individual’s house. Foreign Intelligence Surveillance Act of 1978 §§ 109, 110, 50 U.S.C.A. §§ 1809, 1810.
17. Civil Rights O1355
Government officials may not be held liable for unconstitutional conduct of their subordinates under theory of respondeat superior.
18. Telecommunications O1441
FBI supervisory officials were not subject to liability under Foreign Intelligence Surveillance Act (FISA) for their subordinates’ covert recording of conversations in Muslim individuals’ homes, cars, and offices, and on their phones, absent allegation that supervisors knew of, ordered, or arranged for planting of recording devices. Foreign Intelligence Surveillance Act of 1978 §§ 109, 110, 50 U.S.C.A. §§ 1809, 1810.
19. Privileged Communications and Confidentiality O360
Simply saying ‘‘military secret,’’ ‘‘national security,’’ or ‘‘terrorist threat,’’ ’ or invoking ethereal fear that disclosure will threaten nation is insufficient to support state secrets privilege.
20. Privileged Communications and Confidentiality O360
State secrets doctrine completely bars adjudication of claims premised on state secrets.
21. Privileged Communications and Confidentiality O360
State secrets privilege is evidentiary privilege rooted in federal common law that may be asserted at any time, successful assertion of which will remove privileged evidence from litigation.

FAZAGA v. F.B.I.
Cite as 965 F.3d 1015 (9th Cir. 2020)

1019

22. Federal Civil Procedure O1741.5
Dismissal at pleading stage based on government’s assertion of state secrets privilege is drastic result and should be granted only if state secrets are so central to proceeding that it cannot be litigated without threatening their disclosure.

26. Privileged Communications and Confidentiality O360
State secrets privilege is not simply administrative formality that may be asserted by any official; rather, formal claim must be lodged by head of department that has control over matter.

23. Federal Civil Procedure O1741.5
Because there is strong interest in allowing otherwise meritorious litigation to go forward, before dismissing action following government’s successful invocation of state secrets privilege, court’s inquiry into need for secret information should be specific and tailored, not vague and general.

27. Privileged Communications and Confidentiality O360
To invoke state secrets privilege, claim must be presented in sufficient detail for court to make independent determination of validity of claim of privilege and scope of evidence subject to privilege.
28. Federal Courts O3018

24. Federal Civil Procedure O1741.5
State secrets privilege will justify dismissal of action in three circumstances: (1) if plaintiff cannot prove prima facie elements of her claim with nonprivileged evidence; (2) if privilege deprives defendant of information that would otherwise give defendant valid defense to claim; and (3) if privileged evidence is inseparable from nonprivileged information that will be necessary to claims or defenses, such that litigating case to judgment on merits would present unacceptable risk of disclosing state secrets.
25. Federal Civil Procedure O1741.5
District court erred in dismissing mosque attendees’ Fourth Amendment claims against FBI agents on basis of state secrets privilege, even though agents sought dismissal on that basis, where government did not expressly request dismissal of search claims based on state secrets privilege, and agents did not identify reason they specifically required dismissal to protect against harmful disclosure of state secrets where government did not. U.S. Const. Amend. 4.

Federal courts develop common law in absence of applicable Act of Congress.
29. Federal Courts O3018
Once field has been made subject of comprehensive legislation or authorized administrative standards, federal common law no longer applies.
30. Statutes O1206(2)
To displace federal common law, Congress need not affirmatively proscribe use of federal common law; rather, to abrogate common-law principle, statute must speak directly to question addressed by common law.
31. Federal Civil Procedure O1741.5
Privileged Communications and Confidentiality O360
In enacting Foreign Intelligence Surveillance Act (FISA), Congress displaced common law dismissal remedy created by state secrets privilege as applied to electronic surveillance within FISA’s purview. Foreign Intelligence Surveillance Act of 1978 § 106, 50 U.S.C.A. § 1806(f).

1020

965 FEDERAL REPORTER, 3d SERIES

32. Federal Courts O3018 Privileged Communications and Confidentiality O360 Because state secrets privilege is evi-
dentiary privilege rooted in federal common law, relevant inquiry in deciding if statute preempts state secrets privilege is whether statute speaks directly to question otherwise answered by federal common law.
33. Privileged Communications and Confidentiality O360
State secrets privilege may have constitutional core or constitutional overtones, but, at bottom, it is evidentiary rule rooted in common law, not constitutional law.
34. Statutes O1132, 1153 Whether ‘‘notwithstanding’’ language
in given statute should be understood to supersede all otherwise applicable laws or read more narrowly to override only previously existing laws depends on statute’s overall context.
35. Telecommunications O1473 Foreign Intelligence Surveillance
Act’s (FISA) minimization procedures for using information acquired from covered electronic surveillance do not apply only when government initiates legal action, but also apply when government defends affirmative litigation brought by private parties, whether challenge is under FISA itself, Constitution, or any other law. Foreign Intelligence Surveillance Act of 1978 §§ 106, 110, 50 U.S.C.A. §§ 1806(f), 1810.
36. Telecommunications O1479 Subjects of FBI covert surveillance
program were ‘‘aggrieved persons’’ within scope of Foreign Intelligence Surveillance Act’s (FISA) minimization procedures for using information acquired from covered electronic surveillance in their action against FBI agents alleging FISA and Fourth Amendment violations, where subjects had reasonable expectation of privacy

in places and devices under surveillance. U.S. Const. Amend. 4; Foreign Intelligence Surveillance Act of 1978 §§ 101, 106, 50 U.S.C.A. §§ 1801(k), 1806(c).
See publication Words and Phrases for other judicial constructions and definitions.
37. Criminal Law O1226(3.1) Records O22
Federal courts can order expungement of records, criminal and otherwise, to vindicate constitutional rights.
38. Records O22
Privacy Act does not displace availability of expungement relief under Constitution. 5 U.S.C.A. § 552a.
39. Records O22
Determination that records were obtained and retained in violation of Constitution supports claim for expungement relief of existing records so obtained.
40. United States O1462 Bivens claim will not be recognized
where there is any alternative, existing process for protecting plaintiff’s interests, even when available statutory remedies do not provide complete relief for plaintiff that has suffered constitutional violation.
41. United States O1463
Privacy Act’s limitation on government’s ability to collect, maintain, use, or disseminate information on individual’s religious activity protected by First Amendment’s Religion Clauses precluded Bivens remedy against FBI agents who allegedly violated Muslim individuals’ First Amendment free exercise rights by covertly collecting and retaining records about them, even though Privacy Act provided remedy only against FBI, not individual agents. U.S. Const. Amend. 1; 5 U.S.C.A. § 552a(e)(7).

FAZAGA v. F.B.I.
Cite as 965 F.3d 1015 (9th Cir. 2020)

1021

42. United States O1463
Religious Freedom Restoration Act (RFRA) provided means for Muslim individuals to seek relief for alleged burden of FBI’s covert electronic surveillance itself on their exercise of their religion to extent that their allegations related to neutral, generally applicable government action, thus precluding Bivens remedy against FBI agents who conducted surveillance for violations of their First Amendment free exercise rights with regard to those allegations. U.S. Const. Amend. 1; Religious Freedom Restoration Act of 1993 § 3, 42 U.S.C.A. § 2000bb-1.
43. United States O1463
Religious Freedom Restoration Act (RFRA) did not provide means for Muslim individuals to seek relief for alleged burden of FBI’s covert electronic surveillance itself on their exercise of their religion to extent that they alleged that FBI agents who conducted surveillance were motivated by intentional religious discrimination, and thus did not preclude Bivens remedy against agents for violations of Free Exercise Clause, Establishment Clause, and Due Process Clause’s equal protection guarantee. U.S. Const. Amends. 1, 5; Religious Freedom Restoration Act of 1993 § 3, 42 U.S.C.A. § 2000bb-1.
44. Conspiracy O544
To state civil rights conspiracy claim under § 1985(3), plaintiffs must allege and prove: (1) conspiracy; (2) for purpose of depriving, either directly or indirectly, any person or class of persons of equal protection of laws, or of equal privileges and immunities under laws; and (3) act in furtherance of conspiracy; (4) whereby person is either injured in his person or property or deprived of any right or privilege of United States citizen. 42 U.S.C.A. § 1985(3).

45. Conspiracy O596 It was not clearly established in 2006
and 2007 that intracorporate conspiracy doctrine did not apply to conspiracies among employees of same government entity, and thus FBI agents who covertly recorded conversations in mosque prayer hall were entitled to qualified immunity from liability under federal civil rights conspiracy statute for allegedly conspiring to deprive mosque attendees of their rights under Free Exercise Clause, Establishment Clause, and Due Process Clause’s equal protection component. U.S. Const. Amends. 1, 5; 42 U.S.C.A. § 1985(3).
46. Civil Rights O1032 To establish prima facie claim under
Religious Freedom Restoration Act (RFRA), plaintiff must present evidence sufficient to allow trier of fact rationally to find that: (1) activities that plaintiff claims are burdened by government action are ‘‘exercise of religion,’’ and (2) government action substantially burden’s plaintiff’s exercise of religion. Religious Freedom Restoration Act of 1993, § 3, 42 U.S.C.A. § 2000bb–1.
47. Civil Rights O1032 Under Religious Freedom Restora-
tion Act (RFRA), ‘‘substantial burden’’ on exercise of religion is imposed only when individuals are forced to choose between following tenets of their religion and receiving governmental benefit or coerced to act contrary to their religious beliefs by threat of civil or criminal sanctions. Religious Freedom Restoration Act of 1993, § 3, 42 U.S.C.A. § 2000bb–1.
See publication Words and Phrases for other judicial constructions and definitions.
48. Civil Rights O1032 Effect of government action on indi-
vidual’s subjective, emotional religious experience does not constitute substantial

1022

965 FEDERAL REPORTER, 3d SERIES

burden required to establish claim under Religious Freedom Restoration Act (RFRA), nor does government action that decreases spirituality, fervor, or satisfaction with which believer practices his religion. Religious Freedom Restoration Act of 1993, § 3, 42 U.S.C.A. § 2000bb–1.
49. Civil Rights O1376(6) It was not clearly established in 2006
or 2007 that covert electronic surveillance conducted on basis of religion would meet Religious Freedom Restoration Act (RFRA) standards for constituting substantial religious burden on individual congregants, and thus FBI agents who covertly recorded conversations in mosque prayer hall were entitled to qualified immunity from liability on mosque attendees’ claim that surveillance violated their free exercise rights under RFRA. Religious Freedom Restoration Act of 1993, § 3, 42 U.S.C.A. § 2000bb–1.
50. Records O22, 35 Privacy Act did not authorize injunc-
tive relief requiring FBI to destroy or return unlawfully obtained information describing how Muslim individuals exercised their First Amendment rights. U.S. Const. Amend. 1; 5 U.S.C.A. §§ 552a(e)(7), 552a(g).
51. Records O35 Plaintiffs cannot obtain injunctive re-
lief under Privacy Act except for violations as to which such relief is specifically permitted. 5 U.S.C.A. § 552a(g).
52. United States O964(1) State substantive law applies in Fed-
eral Tort Claims Act (FTCA) actions. 28 U.S.C.A. § 1346(b)(1).
53. Public Employment O952 United States O1424 Federal Tort Claims Act’s (FTCA)
judgment bar provision precludes claims against individual defendants: (1) where plaintiff brings FTCA claim against gov-

ernment and non-FTCA claims against individual defendants in same action and obtains judgment against government; and (2) where plaintiff brings FTCA claim against government, judgment is entered in favor of either party, and plaintiff then brings subsequent non-FTCA action against individual defendants. 28 U.S.C.A. § 2676.
54. United States O1463
Federal Tort Claims Act’s (FTCA) judgment bar provision did not preclude Muslim individuals’ claims against United States for invasion of privacy and intentional infliction of emotional distress as result of FBI’s covert surveillance program, even though plaintiffs also asserted non-FTCA claims against individual FBI agents in same action. 28 U.S.C.A. § 2676.
55. United States O922
Federal Tort Claims Act’s (FTCA) discretionary function exception will not apply when federal statute, regulation, or policy specifically prescribes course of action for employee to follow. 28 U.S.C.A. § 2680(a).
56. United States O922
Constitution can limit discretion of federal officials such that Federal Tort Claims Act’s (FTCA) discretionary function exception will not apply. 28 U.S.C.A. § 2680(a).
57. Federal Civil Procedure O1741.5
Where government contends that dismissal is required because state secrets privilege inhibits it from presenting valid defense, district court may properly dismiss complaint only if it conducts appropriately tailored in camera review of privileged record, and determines that defendants have legally meritorious defense that prevents recovery by plaintiffs.

FAZAGA v. F.B.I.
Cite as 965 F.3d 1015 (9th Cir. 2020)

1023

Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding, D.C. No. 8:11-cv-00301-CJC-VBK

S. Tyre, Kurt Opsahl, Lee Tien, and Cindy Cohn, Electronic Frontier Foundation, San Francisco, California; for Amicus Curiae Electronic Frontier Foundation.

Carl J. Nichols (argued) and Howard M. Shapiro, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.; Katie Moran, Wilmer Cutler Pickering Hale and Dorr LLP, Los Angeles, California; for Defendants-Appellants/Cross-Appellees Barbara Walls and J. Stephen Tidwell.
Alexander H. Cote (argued), Amos A. Lowder, Angela M. Machala, and David C. Scheper, Scheper Kim & Harris LLP, Los Angeles, California, for Defendants-Appellants/Cross-Appellees Pat Rose, Paul Allen, and Kevin Armstrong.
Ahilan Arulanantham (argued), Peter Bibring (argued), Catherine A. Wagner, and Mohammad Tajsar, ACLU Foundation of Southern California, Los Angeles, California; Ameena Mirza Qazi and Fatima Dadabhoy, Council on American-Islamic Relations, Anaheim, California; Dan Stormer and Mohammad Tajsar, Hadsell Stormer Keeny & Renick LLP, Pasadena, California; for Plaintiffs-Appellees/CrossAppellants.
Douglas N. Letter (argued), Daniel Tenny, Mark B. Stern, Mark R. Freeman, Sharon Swingle, and Joseph F. Busa, Appellate Staff; Nicola T. Hanna, United States Attorney; Joseph H. Hunt, Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C., for Defendants-Appellees Federal Bureau of Investigation, Christopher A. Wray, and Paul Delacourt.
Richard R. Wiebe, Law Office of Richard R. Wiebe, San Francisco, California; Thomas E. Moore III, Royse Law Firm PC, Palo Alto, California; David Greene, Andrew Crockner, Mark Rumold, James

Before: RONALD M. GOULD and MARSHA S. BERZON, Circuit Judges and GEORGE CARAM STEEH III,** District Judge.
Concurrence in Order by Judges GOULD and BERZON; Statement by Judge STEEH; Dissent to Order by Judge BUMATAY
ORDER AND AMENDED OPINION
ORDER
The opinion filed on February 28, 2019, reported at 916 F.3d 1202, is hereby amended. An amended opinion is filed concurrently with this order. With these amendments, the panel has unanimously voted to deny appellees’ petition for rehearing. Judges Berzon and Gould have voted to deny the petition for rehearing en banc and Judge Steeh so recommends.
The full court has been advised of the petition for rehearing en banc. A judge of the court requested a vote on en banc rehearing. The matter failed to receive a majority of votes of non-recused active judges in favor of en banc consideration. Fed. R. App. P. 35.
The petition for rehearing and the petition for rehearing en banc are DENIED. No further petitions for panel rehearing or rehearing en banc will be entertained. Judge Berzon’s concurrence with and Judge Bumatay’s dissent from denial of en banc rehearing are filed concurrently herewith.
OPINION
TABLE OF CONTENTS INTRODUCTIONTTT1024

** The Honorable George Caram Steeh III, United States District Judge for the Eastern

District of Michigan, sitting by designation.

1024

965 FEDERAL REPORTER, 3d SERIES

BACKGROUNDTTT1025
I. Factual BackgroundTTT1026
II. Procedural HistoryTTT1028
DISCUSSIONTTT1030 I. The FISA Claim Against the Agent DefendantsTTT1030 A. Recordings of Conversations to Which Monteilh Was a PartyTTT1033 B. Recordings of Conversations in the Mosque Prayer Hall to Which Monteilh Was Not a PartyTTT1034 C. Recordings Made by Planted DevicesTTT1038 II. The State Secrets Privilege and FISA PreemptionTTT1039 A. The State Secrets PrivilegeTTT1040 B. The District Court’s Dismissal of the Search Claims Based on the State Secrets PrivilegeTTT1042 C. FISA Displacement of the State Secrets PrivilegeTTT1043 D. Applicability of FISA’s § 1806(f) Procedures to Affirmative Legal Challenges to Electronic SurveillanceTTT1048 E. Aggrieved PersonsTTT1053 III. Search ClaimsTTT1053 A. Fourth Amendment Injunctive Relief Claim Against the Official-Capacity DefendantsTTT1053 B. Fourth Amendment Bivens Claim Against the Agent DefendantsTTT1055 IV. Religion ClaimsTTT1056 A. First Amendment and Fifth Amendment Injunctive Relief Claims Against the Official-Capacity DefendantsTTT1056 B. First Amendment and Fifth Amendment Bivens Claims Against the Agent DefendantsTTT1056

C. 42 U.S.C. § 1985(3) Claims Against the Agent DefendantsTTT1059
D. Religious Freedom Restoration Act Claim Against the Agent Defendants and Government DefendantsTTT1060
E. Privacy Act Claim Against the FBITTT1063
F. FTCA ClaimsTTT1064
1. FTCA Judgment BarTTT1064
2. FTCA Discretionary Function ExceptionTTT1064
V. Procedures on RemandTTT1065
CONCLUSIONTTT1067
BERZON, Circuit Judge:
INTRODUCTION
Three Muslim residents of Southern California allege that, for more than a year, the Federal Bureau of Investigation (‘‘FBI’’) paid a confidential informant to conduct a covert surveillance program that gathered information about Muslims based solely on their religious identity. The three plaintiffs filed a putative class action against the United States, the FBI, and two FBI officers in their official capacities (‘‘Government’’ or ‘‘Government Defendants’’), and against five FBI agents in their individual capacities (‘‘Agent Defendants’’). Alleging that the investigation involved unlawful searches and anti-Muslim discrimination, they pleaded eleven constitutional and statutory causes of action.1
The Attorney General of the United States asserted the state secrets privilege with respect to three categories of evidence assertedly at issue in the case, and

1. Specifically, the Plaintiffs alleged violations of the First Amendment’s Establishment Clause and Free Exercise Clauses; the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.; the equal protection compo-

nent of the Fifth Amendment’s Due Process Clause; the Privacy Act, 5 U.S.C. § 552a; the Fourth Amendment; the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1810; and the Federal Tort Claims Act, 28 U.S.C. § 1346.

FAZAGA v. F.B.I.
Cite as 965 F.3d 1015 (9th Cir. 2020)

1025

the Government moved to dismiss the discrimination claims pursuant to that privilege. The Government expressly did not move to dismiss the Fourth Amendment and Foreign Intelligence Surveillance Act (‘‘FISA’’) unlawful search claims based on the privilege. Both the Government and the Agent Defendants additionally moved to dismiss Plaintiffs’ discrimination and unlawful search claims based on arguments other than the privilege.
The district court dismissed all but one of Plaintiffs’ claims on the basis of the state secrets privilege—including the Fourth Amendment claim, although the Government Defendants had not sought its dismissal on privilege grounds. The district court allowed only the FISA claim against the Agent Defendants to proceed. Plaintiffs appeal the dismissal of the majority of their claims, and the Agent Defendants appeal the denial of qualified immunity on the FISA claim.
We conclude that some of the claims dismissed on state secrets grounds should not have been dismissed outright. Instead, the district court should have reviewed any state secrets evidence necessary for a determination of whether the alleged surveillance was unlawful following the secrecyprotective procedure set forth in FISA. See 50 U.S.C. § 1806(f). After addressing Defendants’ other arguments for dismissing Plaintiffs’ claims, we conclude that some of Plaintiffs’ allegations state a claim while others do not. Accordingly, we remand to the district court for further proceedings on the substantively stated claims.
BACKGROUND
At this stage in the litigation, we ‘‘construe the complaint in the light most favorable to the plaintiff[s], taking all [their]

allegations as true and drawing all reasonable inferences from the complaint in [their] favor.’’ Doe v. United States, 419 F.3d 1058, 1062 (9th Cir. 2005). ‘‘Conclusory allegations and unreasonable inferences, however, are insufficient to defeat a motion to dismiss.’’ Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007).
Plaintiffs are three Muslims who were residents of Southern California: Sheikh Yassir Fazaga, Ali Uddin Malik, and Yasser AbdelRahim. Fazaga was, at the times relevant to this litigation, an imam at the Orange County Islamic Foundation (‘‘OCIF’’), a mosque in Mission Viejo, California. Malik and AbdelRahim are practicing Muslims who regularly attended religious services at the Islamic Center of Irvine (‘‘ICOI’’).
The complaint sought relief against the United States, the FBI, and two federal officials named in their official capacities, as well as five individual Agent Defendants—Kevin Armstrong, Paul Allen, J. Stephen Tidwell, Barbara Walls, and Pat Rose—named in their individual capacities. Armstrong and Allen were FBI Special Agents assigned to the Orange County areas; Tidwell was the Assistant Director in Charge of the FBI’s Los Angeles Field Office from August 2005 to December 2007; Walls was the Special Agent in Charge of the FBI’s Santa Ana branch office, a satellite office of the FBI’s Los Angeles field office; and Rose was a Special Agent assigned to the FBI’s Santa Ana branch office.
Because of the sensitivity of the issues in this case, we particularly stress the usual admonition that accompanies judicial determination on motions to dismiss a complaint: the facts recited below come primarily from Plaintiffs’ allegations in their complaint.2 The substance of those

2. In addition to the facts alleged in the complaint, this opinion at some points refers to

facts contained in two public declarations

1026

965 FEDERAL REPORTER, 3d SERIES

allegations has not been directly addressed by the defendants. At this point in the litigation, the truth or falsity of the allegations therefore is entirely unproven.
I. Factual Background
For at least fourteen months in 2006 and 2007, the FBI paid a confidential informant named Craig Monteilh to gather information as part of a counterterrorism investigation known as Operation Flex. Plaintiffs allege that Operation Flex was a ‘‘dragnet surveillance’’ program, the ‘‘central feature’’ of which was to ‘‘gather information on Muslims.’’3
At some point before July 2006, Stephen Tidwell, then the Assistant Director in Charge of the FBI’s Los Angeles Field Office, authorized first the search for an informant and later the selection of Monteilh as that informant. Once selected, Monteilh was supervised by two FBI handlers, Special Agents Kevin Armstrong and Paul Allen.
In July 2006, Monteilh began attending ICOI. As instructed by Allen and Armstrong, Monteilh requested a meeting with ICOI’s imam, represented that he wanted to convert to Islam, and later publicly declared his embrace of Islam at a prayer service. Monteilh subsequently adopted the name Farouk al-Aziz and began visiting ICOI daily, attending prayers, classes, and special events. He also visited ‘‘with some regularity’’ several other large mosques in Orange County.
Armstrong and Allen closely supervised Monteilh during the course of Operation Flex, explaining to him the parameters and goals of the investigation. Monteilh

was ‘‘to gather information on Muslims in general,’’ using information-gathering and surveillance tactics. The agents provided him with the tools to do so, including audio and video recording devices. They also gave Monteilh general goals, such as obtaining contact information from a certain number of Muslims per day, as well as specific tasks, such as entering a certain house or having lunch with a particular person. Sometimes, Allen and Armstrong prepared photo arrays with hundreds of Muslim community members and asked Monteilh to arrange the photos from most to least dangerous.
Armstrong and Allen did not, however, limit Monteilh to specific targets. Rather, ‘‘they repeatedly made clear that they were interested simply in Muslims.’’ Allen told Monteilh, ‘‘We want to get as many files on this community as possible.’’ To the extent Allen and Armstrong expressed an interest in certain targets, it was in particularly religious Muslims and persons who might influence young Muslims. When Monteilh’s surveillance activities generated information on non-Muslims, the agents set that information aside.
In accordance with his broad directive, Monteilh engaged with a wide variety of individuals. As instructed by his handlers, he attended classes at the mosque, amassed information on Muslims’ charitable giving, attended Muslim fundraising events, collected information on community members’ travel plans, attended lectures by Muslim scholars, went to daily prayers, memorized certain verses from the Quran and recited them to others, encouraged people to visit ‘‘jihadist’’ web-

submitted by the Government in support of its invocation of the state secrets privilege.
3. In a public declaration, the FBI frames Operation Flex differently, contending that it ‘‘focused on fewer than 25 individuals and was directed at detecting and preventing pos-

sible terrorist attacks.’’ The FBI maintains that the goal of Operation Flex ‘‘was to determine whether particular individuals were involved in the recruitment and training of individuals in the United States or overseas for possible terrorist activity.’’

FAZAGA v. F.B.I.
Cite as 965 F.3d 1015 (9th Cir. 2020)

1027

sites, worked out with targeted people at a gym to get close to them, and sought to obtain compromising information that could be used to pressure others to become informants. He also collected the names of board members, imams, teachers, and other leadership figures at the mosques, as well as the license plate numbers of cars in the mosque parking lots during certain events.
Virtually all of Monteilh’s interactions with Muslims were recorded. Monteilh used audio and video recording devices provided to him by the agents, including a cellphone, two key fobs with audio recording capabilities, and a camera hidden in a button on his shirt. He recorded, for example, his interactions with Muslims in the mosques, which were transcribed and reviewed by FBI officials. He also recorded meetings and conversations in the mosque prayer hall to which he was not a party. He did so by leaving his possessions behind, including his recording key fob, as though he had forgotten them or was setting them down while doing other things. Monteilh told Allen and Armstrong in written reports that he was recording conversations in this manner. The agents never told him to stop this practice, and they repeatedly discussed with Monteilh the contents of the recordings.
Armstrong and Allen occasionally instructed Monteilh to use his secret video camera for specific purposes, such as capturing the internal layout of mosques and homes. They also told Monteilh to obtain the contact information of people he met, and monitored his email and cellphone to obtain the email addresses and phone numbers of the people with whom he interacted.
Although Monteilh spent the majority of his time at ICOI, he conducted surveillance and made audio recordings in at least seven other mosques during the investigation. During Monteilh’s fourteen

months as an informant for Operation Flex, the FBI obtained from him hundreds of phone numbers; thousands of email addresses; background information on hundreds of individuals; hundreds of hours of video recordings of the interiors of mosques, homes, businesses, and associations; and thousands of hours of audio recordings of conversations, public discussion groups, classes, and lectures.
In addition to the surveillance undertaken directly by Monteilh, Allen and Armstrong told Monteilh that electronic surveillance equipment had been installed in at least eight mosques in the area, including ICOI. The electronic surveillance equipment installed at the Mission Viejo mosque was used to monitor Plaintiff Yassir Fazaga’s conversations, including conversations held in his office and other parts of the mosque not open to the public.
At the instruction of Allen and Armstrong, Monteilh took extensive handwritten notes each day about his activities and the surveillance he was undertaking. Allen and Armstrong met with Monteilh roughly twice each week to discuss his assignments, give him instructions, receive his daily notes, upload his recordings, and give him fresh devices. Monteilh was also required to call either Allen or Armstrong each day to apprise them of his activities. They told Monteilh that his daily notes were read by their supervisors.
The operation began to unravel when, in early 2007, Allen and Armstrong instructed Monteilh to begin more pointedly asking questions about jihad and armed conflict and to indicate his willingness to engage in violence. Implementing those instructions, Monteilh told several people that he believed it was his duty as a Muslim to take violent action and that he had access to weapons. Several ICOI members reported Monteilh to community leaders. One of the community leaders then called

1028

965 FEDERAL REPORTER, 3d SERIES

the FBI to report what Monteilh was saying, and instructed concerned ICOI members to call the Irvine Police Department, which they did. ICOI sought a restraining order against Monteilh, which was granted in June 2007.
Around the same time, Allen and Armstrong told Monteilh that Barbara Walls, then Assistant Special Agent in Charge of the FBI’s Santa Ana office, no longer trusted him and wanted him to stop working for the FBI. In October 2007, Monteilh was told that his role in Operation Flex was over. At one of the final meetings between Monteilh and Agents Allen and Armstrong, Walls was present. She warned Monteilh not to tell anyone about the operation.
Monteilh’s identity as an informant was revealed in February 2009 in connection with a criminal prosecution for naturalization fraud of Ahmadullah (or Ahmed) Niazi, one of the ICOI members who had reported Monteilh’s statements to the Irvine Police Department. FBI Special Agent Thomas Ropel testified at a bail hearing in Niazi’s case that he had heard several recordings between Niazi and a confidential informant, and that the informant was the same person Niazi had reported to the police. Ropel’s statements thus indicated that Monteilh was a confidential informant and that he had recorded numerous conversations for the FBI.
Several sources subsequently confirmed that Monteilh worked for the FBI, including the FBI and Monteilh himself. Although the FBI has disclosed some information about Monteilh’s actions as an

informant, including that he created audio and video recordings and provided handwritten notes to the FBI, the FBI maintains that ‘‘certain specific information’’ concerning Operation Flex and Monteilh’s activities must be protected in the interest of national security.
II. Procedural History
[1] Plaintiffs filed the operative complaint in September 2011, asserting eleven causes of action, which fall into two categories: claims alleging unconstitutional searches (‘‘search claims’’) and claims alleging unlawful discrimination on the basis of, or burdens on, or abridgement of the rights to, religion (‘‘religion claims’’). The religion claims allege violations of the First Amendment Religion Clauses, the equal protection guarantee of the Due Process Clause of the Fifth Amendment,4 the Privacy Act, the Religious Freedom Restoration Act (‘‘RFRA’’), the Foreign Intelligence Surveillance Act (‘‘FISA’’), and the Federal Tort Claims Act (‘‘FTCA’’).
Plaintiffs filed the complaint as a putative class action, with the class defined as ‘‘[a]ll individuals targeted by Defendants for surveillance or information-gathering through Monteilh and Operation Flex, on account of their religion, and about whom the FBI thereby gathered personally identifiable information.’’ The complaint sought injunctive relief for the individual Plaintiffs and the class, and damages for themselves as individuals.5 The Agent Defendants moved to dismiss the claims against them on various grounds, including qualified im-

4. ‘‘The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws.’’ United States v. Windsor, 570 U.S. 744, 774, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013) (citing Bolling v. Sharpe, 347 U.S. 497, 499–500, 74 S.Ct. 693, 98 L.Ed. 884 (1954)).

5. The proposed class has not been certified. In addition to its relevance to the merits of Plaintiffs’ claims, the information over which the Government asserted the state secrets privilege may also be relevant to the decision whether to certify the class. In addition, the scope of privileged evidence needed to litigate the case likely will differ should class certification be granted.

FAZAGA v. F.B.I.
Cite as 965 F.3d 1015 (9th Cir. 2020)

1029

munity. The Government moved to dismiss the amended complaint and for summary judgment, arguing that Plaintiffs’ statutory and constitutional claims fail on various grounds unrelated to the state secrets privilege.
The Government also asserted that the religion claims, but not the search claims, should be dismissed under the Reynolds state secrets privilege, see United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953), on the ground that litigation of the religion claims could not proceed without risking the disclosure of certain evidence protected by the privilege. The assertion of the state secrets privilege was supported with a previously filed public declaration from then-U.S. Attorney General Eric Holder; a public declaration from Mark Giuliano, then Assistant Director of the FBI’s Counterterrorism Division; and two classified declarations and a classified supplemental memorandum from Giuliano. The Attorney General asserted the state secrets privilege over three categories of evidence: (1) ‘‘[i]nformation that could tend to confirm or deny whether a particular individual was or was not the subject of an FBI counterterrorism investigation’’; (2) ‘‘[i]nformation that could tend to reveal the initial reasons (i.e., predicate) for an FBI counterterrorism investigation of a particular person (including in Operation Flex), any information obtained during the course of such an investigation, and the status and results of the investigation’’; and (3) ‘‘[i]nformation that could tend to reveal whether particular sources and methods were used in a counterterrorism investigation.’’
In one order, the district court dismissed the FISA claim against the Government, brought under 50 U.S.C. § 1810, concluding that Congress did not waive sovereign immunity for damages actions under that statute. See Al-Haramain Islamic Found., Inc. v. Obama (Al-Hara-

main II), 705 F.3d 845, 850–55 (9th Cir. 2012). Plaintiffs do not challenge this dismissal. In the same order, the district court permitted Plaintiffs’ FISA claim against the Agent Defendants to proceed, rejecting the argument that the Agent Defendants were entitled to qualified immunity.
In a second order, the district court dismissed all the other claims in the case on the basis of the Reynolds state secrets privilege—including the Fourth Amendment claim, for which the Government Defendants expressly did not seek dismissal on that ground. Relying ‘‘heavily’’ on the classified declarations and supplemental memorandum, the district court concluded ‘‘that the subject matter of this action, Operation Flex, involves intelligence that, if disclosed, would significantly compromise national security.’’ It held that the Government Defendants would need to rely on the privileged material to defend against Plaintiffs’ claims, and that the privileged evidence was so inextricably tied up with nonprivileged material that ‘‘the risk of disclosure that further litigation would engender [could not] be averted through protective orders or restrictions on testimony.’’ The district court declined to use, as a substitute for dismissal, the in camera, ex parte procedures set out in § 1806(f) of FISA, on the ground that FISA’s procedures do not apply to nonFISA claims.
The Agent Defendants timely filed notices of appeal from the denial of qualified immunity on Plaintiffs’ FISA claim. The district court then approved the parties’ stipulation to stay all further proceedings related to the remaining FISA claim pending resolution of the Agent Defendants’ appeal and, at Plaintiffs’ request, entered partial final judgment under Federal Rule of Civil Procedure 54(b), allowing immediate appeal of the majority of Plaintiffs’

1030

965 FEDERAL REPORTER, 3d SERIES

claims. The Plaintiffs’ appeal and the Agent Defendants’ appeal from the denial of qualified immunity on the FISA claim were consolidated and are both addressed in this opinion.
DISCUSSION
We begin with the only claim to survive Defendants’ motions to dismiss in the district court: the FISA claim against the Agent Defendants. After addressing the FISA claim, we turn to Plaintiffs’ argument that in cases concerning the lawfulness of electronic surveillance, the ex parte and in camera procedures set out in § 1806(f) of FISA supplant the dismissal remedy otherwise mandated by the state secrets evidentiary privilege. See infra Part II. We then proceed to evaluate Defendants’ other arguments for dismissal of the search and religion claims. See infra Parts III–IV. Finally, we explain the procedures to be followed on remand. See infra Part V.
I. The FISA Claim Against the Agent Defendants
Section 110 of FISA, codified at 50 U.S.C. § 1810, creates a private right of action for an individual subjected to electronic surveillance in violation of FISA’s procedures. It provides, in pertinent part:
An aggrieved person TTT who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violationTTTT
50 U.S.C. § 1810.
This statutory text refers to another section, § 1809. That section, in turn, proscribes as criminal offenses two types of

conduct: (1) ‘‘intentionally TTT engag[ing] in electronic surveillance under color of law except as authorized by [FISA, the Wiretap Act, the Stored Communications Act, or the pen register statute,] or any express statutory authorization,’’ and (2) ‘‘intentionally TTT disclos[ing] or us[ing] information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance’’ without authorization. 50 U.S.C. § 1809(a).
To determine whether Plaintiffs plausibly allege a cause of action under § 1810, we must decide (1) whether Plaintiffs are ‘‘aggrieved persons’’ within the meaning of the statute, (2) whether the surveillance to which they were subjected qualifies as ‘‘electronic surveillance,’’ and (3) whether the complaint plausibly alleges a violation of 50 U.S.C. § 1809. An ‘‘aggrieved person’’ is defined as ‘‘a person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance.’’ 50 U.S.C. § 1801(k).6 Plaintiffs allege in extensive detail in the complaint that they were subjected to many and varied instances of audio and video surveillance. The complaint’s allegations are sufficient if proven to establish that Plaintiffs are ‘‘aggrieved persons.’’
The complaint also adequately alleges that much of the surveillance as described constitutes ‘‘electronic surveillance’’ as defined by FISA. FISA offers four definitions of electronic surveillance. 50 U.S.C. § 1801(f). Only the fourth is potentially at stake in this case:
the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a

6. ‘‘ ‘Person’ means any individual, including any officer or employee of the Federal Government, or any group, entity, association,

corporation, or foreign power.’’ 50 U.S.C. § 1801(m).

FAZAGA v. F.B.I.
Cite as 965 F.3d 1015 (9th Cir. 2020)

1031

wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.
Id. § 1801(f)(4) (emphases added). The key question as to the presence of ‘‘electronic surveillance’’ under this definition is whether the surveillance detailed in the complaint was undertaken in circumstances in which (1) Plaintiffs had a reasonable expectation of privacy and (2) a warrant would be required for law enforcement purposes. If, as the complaint alleges, no warrant was in fact obtained, such electronic surveillance would constitute a violation of § 1809. Id. § 1809(a).
The parties, citing ACLU v. NSA, 493 F.3d 644, 657 n.16, 683 (6th Cir. 2007), agree that these legal standards from FISA—reasonable expectation of privacy and the warrant requirement—are evaluated just as they would be under a Fourth Amendment analysis. The Agent Defendants argue, however, that they are entitled to qualified immunity on Plaintiffs’ FISA claim. Plaintiffs accept that qualified immunity can apply under FISA but maintain that the Agent Defendants are not entitled to immunity.7
[2] The Agent Defendants are entitled to qualified immunity from damages unless Plaintiffs ‘‘plead[ ] facts showing (1) that the official[s] violated a statutory or constitutional right, and (2) that the right was

‘clearly established’ at the time of the challenged conduct.’’ Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). We are permitted to ‘‘exercise [our] sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.’’ Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Because, as we conclude in infra Part II.E, the applicability of FISA’s alternative procedures for reviewing state secrets evidence turns on whether the surveillance at issue constitutes ‘‘electronic surveillance’’ within the meaning of FISA,8 we will begin with the first prong, even though we conclude that the Agent Defendants are ultimately entitled to qualified immunity on the second prong.
[3–5] For purposes of qualified immunity, a right is clearly established if, ‘‘at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.’ ’’ al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074 (alterations in original) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). ‘‘This inquiry TTT must be undertaken in light of the specific context of the case, not as a broad general proposition.’’ Saucier v.

7. We have found only one decision, unpublished, addressing whether qualified immunity is an available defense to a FISA claim. See Elnashar v. U.S. Dep’t of Justice, No. CIV.035110(JNE/JSM), 2004 WL 2237059, at *5 (D. Minn. Sept. 30, 2004) (dismissing a FISA claim on grounds of qualified immunity because there was no evidence the defendant ‘‘would have known that the search of [plaintiff’s] apartment would have required a warrant’’), aff’d on other grounds, 446 F.3d 792 (8th Cir. 2006). As the issue is not contested, we do not decide it.

8. Again, as we noted above, ‘‘electronic surveillance’’ as defined by FISA must fall under one of four types of government action. 50 U.S.C. § 1801(f). The relevant one for our purposes involves ‘‘the installation or use of an electronic, mechanical, or other surveillance device TTT under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.’’ Id. § 1801(f)(4).

1032

965 FEDERAL REPORTER, 3d SERIES

Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). ‘‘We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.’’ alKidd, 563 U.S. at 741, 131 S.Ct. 2074.
[6] ‘‘The operation of [the qualified immunity] standard, however, depends substantially upon the level of generality at which the relevant ‘legal rule’ is to be identified.’’ Anderson, 483 U.S. at 639, 107 S.Ct. 3034. Often, whether a right is ‘‘clearly established’’ for purposes of qualified immunity will turn on the legal test for determining whether that right has been violated. For claims of excessive force, for example, ‘‘[i]t is sometimes difficult for an officer to determine how the relevant legal doctrine TTT will apply to the factual situation the officer confronts.’’ Saucier, 533 U.S. at 205, 121 S.Ct. 2151. ‘‘The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make splitsecond judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.’’ Graham v. Connor, 490 U.S. 386, 396–97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). By contrast, ‘‘[w]ith few exceptions, the question whether a warrantless search of a

home is reasonable and hence constitutional must be answered no,’’ Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), as ‘‘the Fourth Amendment has drawn a firm line at the entrance to the house,’’ Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Thus, where the test for determining whether the right in question has been violated is framed as a standard, rather than a rule, officials are given more breathing room to make ‘‘reasonable mistakes.’’ Saucier, 533 U.S. at 205, 121 S.Ct. 2151. In those instances, we require a higher degree of factual specificity before concluding that the right is ‘‘clearly established.’’ But where the right at issue is clear and specific, officials may not claim qualified immunity based on slight changes in the surrounding circumstances.9
To properly approach this inquiry, we consider separately three categories of audio and video surveillance alleged in the complaint: (1) recordings made by Monteilh of conversations to which he was a party; (2) recordings made by Monteilh of conversations to which he was not a party (i.e., the recordings of conversations in the mosque prayer hall); and (3) recordings made by devices planted by FBI agents in Fazaga’s office and AbdelRahim’s house, car, and phone.10

9. The Supreme Court made a similar observation in an analogous context—determining whether a state court has unreasonably applied clearly established federal law for purposes of habeas review under the Antiterrorism and Effective Death Penalty Act: ‘‘[T]he range of reasonable judgment can depend in part on the nature of the relevant rule. If a legal rule is specific, the range may be narrow. TTT Other rules are more general, and their meaning must emerge in application over the course of time.’’ Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004).
10. We note that, in their ‘‘Claims for Relief,’’ under the FISA cause of action, Plaintiffs recite that ‘‘Defendants, under color of law,

acting through Monteilh’’ violated FISA (emphasis added). But the complaint specifically recites facts relating to devices allegedly planted directly by the Agent Defendants. Under the Federal Rules of Civil Procedure, it is the facts alleged that circumscribe the reach of the complaint for purposes of a motion to dismiss. See Skinner v. Switzer, 562 U.S. 521, 530, 131 S.Ct. 1289, 179 L.Ed.2d 233 (2011).
We also note that there may be a fourth category of surveillance here at issue: video recordings of the interiors of individuals’ homes. These recordings are not given meaningful attention in the parties’ briefs, and we cannot determine from the complaint if Plaintiffs mean to allege that Monteilh video recorded the layouts of houses into which he was invited, or that he entered the houses

FAZAGA v. F.B.I.
Cite as 965 F.3d 1015 (9th Cir. 2020)

1033

We conclude that the Agent Defendants are entitled to dismissal on qualified immunity grounds of Plaintiffs’ § 1810 claim as to the first two categories of surveillance. As to the third category of surveillance, conducted via devices planted in AbdelRahim’s house and Fazaga’s office, Allen and Armstrong are not entitled to qualified immunity. But Tidwell, Walls, and Rose are entitled to dismissal as to this category, because Plaintiffs do not plausibly allege their involvement in this category of surveillance, and so have not ‘‘pleaded facts showing TTT that [those] officials violated a statutory or constitutional right.’’ al-Kidd, 563 U.S. at 735, 131 S.Ct. 2074.
A. Recordings of Conversations to Which Monteilh Was a Party
[7, 8] A reasonable expectation of privacy exists where ‘‘a person ha[s] exhibited an actual (subjective) expectation of privacy,’’ and ‘‘the expectation [is] one that society is prepared to recognize as ‘reasonable.’ ’’ Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring); see, e.g., California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986) (describing Justice Harlan’s test as the ‘‘touchstone of Fourth Amendment analysis’’). Generally, an individual ‘‘has no privacy interest in that which he voluntarily reveals to a government agent,’’ a principle known as the invited informer doctrine. United States v. Wahchumwah, 710 F.3d 862, 867 (9th Cir. 2013) (citing Hoffa v. United States, 385 U.S. 293, 300–02, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966)); see also United States v. Aguilar, 883 F.2d 662, 697–98 (9th Cir. 1989), superseded on other grounds by statute, Immigration Re-

form and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359, as recognized in United States v. Gonzalez-Torres, 309 F.3d 594 (9th Cir. 2002). Plaintiffs contend, however, that the invited informer doctrine does not apply to the recordings made by Monteilh of conversations to which he was a party because the surveillance was conducted with discriminatory purpose and therefore in bad faith.
[9] Bad faith of this sort does not, however, implicate the reasonable privacy expectation protected by the Fourth Amendment or violate the Fourth Amendment’s warrant requirement. There is, to be sure, an important ‘‘limitation[ ] on the government’s use of undercover informers to infiltrate an organization engaging in protected first amendment activities’’: the government’s investigation must not be conducted ‘‘for the purpose of abridging first amendment freedoms.’’ Aguilar, 883 F.2d at 705. But that limitation on voluntary conversations with undercover informants—sometimes referred to as a ‘‘good faith’’ requirement,11 e.g., United States v. Mayer, 503 F.3d 740, 751 (9th Cir. 2007); Aguilar, 883 F.2d at 705—is imposed by the First Amendment, not the Fourth Amendment. As that constitutional limitation is not grounded in privacy expectations, it does not affect the warrant requirement under the Fourth Amendment.
[10] Under the appropriate Fourth Amendment precepts, ‘‘[u]ndercover operations, in which the agent is a so-called ‘invited informer,’ are not ‘searches’ under the Fourth Amendment.’’ Mayer, 503 F.3d at 750 (emphasis added) (quoting Aguilar, 883 F.2d at 701). ‘‘[A] defendant generally

without permission. Although at this stage we do not construe the complaint as asserting claims based on this fourth category of surveillance, our opinion does not foreclose Plaintiffs from clarifying these and other allegations on remand.

11. We use this term in the remainder of this discussion to refer to the constitutional limitation on the use of informants discussed in the text.

1034

965 FEDERAL REPORTER, 3d SERIES

has no privacy interest’’—not merely an unreasonable privacy interest—‘‘in that which he voluntarily reveals to a government agent.’’ Wahchumwah, 710 F.3d at 867 (emphasis added). In other words, use of a government informant under the invited informer doctrine—even if not in good faith in the First Amendment sense—does not implicate the privacy interests protected by the Fourth Amendment. Because our inquiry under FISA is confined to whether a reasonable expectation of privacy was violated and whether a warrant was therefore required, see ACLU, 493 F.3d at 657 n.16, 683, the First Amendmentgrounded good-faith limitation does not apply to our current inquiry.
[11] Under the invited informer doctrine, Plaintiffs lacked a reasonable expectation of privacy in the conversations recorded by Monteilh to which he was a party. The Agent Defendants are therefore not liable under FISA for this category of surveillance.
B. Recordings of Conversations in the Mosque Prayer Hall to Which Monteilh Was Not a Party
[12] Plaintiffs did have a privacygrounded reasonable expectation that their conversations in the mosque prayer hall would not be covertly recorded by an individual who was not present where Plaintiffs were physically located and was not known to be listening in.12 The Agent Defendants are, however, entitled to qualified immunity with respect to this category of surveillance under the second prong of the qualified immunity standard—whether ‘‘the right was ‘clearly established’ at the time of the challenged conduct.’’ al-Kidd, 563 U.S. at 735, 131 S.Ct. 2074 (quoting Harlow, 457 U.S. at 818, 102 S.Ct. 2727).

[13] Again, the relevant questions here on the merits of the FISA and Fourth Amendment issues are whether ‘‘a person ha[s] exhibited an actual (subjective) expectation of privacy,’’ and whether ‘‘the expectation [is] one that society is prepared to recognize as ‘reasonable.’ ’’ Katz, 389 U.S. at 361, 88 S.Ct. 507 (Harlan, J., concurring). To first determine whether an individual has ‘‘exhibited an actual expectation of privacy,’’ we assess whether ‘‘he [sought] to preserve [something] as private.’’ Bond v. United States, 529 U.S. 334, 338, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000) (alterations in original) (quoting Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)). Based on the rules and customs of the mosque, and the allegations in the complaint, we have no trouble determining that Plaintiffs manifested an actual, subjective expectation of privacy in their conversations there.
The mosque prayer hall is not an ordinary public place. It is a site of religious worship, a place for Muslims to come together for prayer, learning, and fellowship. Plaintiffs allege that the prayer hall ‘‘is [a] sacred space where particular rules and expectations apply. Shoes are prohibited, one must be in a state of ablution, discussing worldly matters is discouraged, and the moral standards and codes of conduct are at their strongest.’’ Notably, ‘‘[g]ossiping, eavesdropping, or talebearing (namima—revealing anything where disclosure is resented) is forbidden.’’ And ICOI, which Malik and AbdelRahim attended, specifically prohibited audio and video recording in the mosque without permission. When, on a rare occasion, an outside entity did record an event or a speaker, ICOI put up signs to notify congregants. Furthermore, Plaintiffs explain in their complaint that halaqas, which are small group meet-

12. We are not suggesting that the recording would have been impermissible under FISA and the Fourth Amendment if the Agent De-

fendants had obtained a warrant based on probable cause. Here, however, no warrant was obtained.

FAZAGA v. F.B.I.
Cite as 965 F.3d 1015 (9th Cir. 2020)

1035

ings during which participants ‘‘discuss theology or matters related to the practice of Islam,’’ are understood by mosque attendees to be environments that ‘‘ensure some measure of confidentiality among participants.’’13
These privacy-oriented rules and customs confirm for us that Plaintiffs held a subjective expectation of privacy in their conversations among themselves while in the prayer hall.
That Plaintiffs were not alone in the mosque prayer hall does not defeat their claim that they manifested an expectation of privacy.14 ‘‘Privacy does not require solitude.’’ United States v. Taketa, 923 F.2d 665, 673 (9th Cir. 1991). For example, ‘‘a person can have a subjective expectation that his or her home will not be searched by the authorities, even if he or she has invited friends into his or her home.’’ Tru-

jillo v. City of Ontario, 428 F. Supp. 2d 1094, 1102 (C.D. Cal. 2006), aff’d sub nom. Bernhard v. City of Ontario, 270 F. App’x 518 (9th Cir. 2008). The same principle applies to certain other enclosed locations in which individuals have particular reason to expect confidentiality and repose.15
Finally, the case law distinguishes between an expectation of privacy in a place and an expectation of privacy as to whether an individual’s conversations or actions in that place would be covertly recorded by persons not themselves present in that place.16 The Supreme Court has recently emphasized the significant difference between obtaining information in person and recording information electronically. See Carpenter, 138 S. Ct. at 2219 (‘‘Unlike the nosy neighbor who keeps an eye on comings and goings, they are ever alert, and their memory is nearly infallible.’’). Here,

13. We understand that description to imply that Monteilh recorded conversations that occurred during halaqas in the mosque prayer hall.
14. The Agent Defendants cite Smith v. Maryland, 442 U.S. at 740–41, 99 S.Ct. 2577, to support the proposition that the unattended recordings in the mosque prayer hall did not invade Plaintiffs’ reasonable expectation of privacy. Smith and its progeny do not apply here. Smith concerned a pen register installed and used by a telephone company, and held that an individual enjoys no Fourth Amendment protection ‘‘in information he voluntary turns over to third parties.’’ Id. at 743–44, 99 S.Ct. 2577. But, as the Fourth Circuit has stressed, Smith and the cases relying on it are concerned with ‘‘whether the government invades an individual’s reasonable expectation of privacy when it obtains, from a third party, the third party’s records.’’ United States v. Graham, 824 F.3d 421, 426 (4th Cir. 2016) (en banc) (emphasis added), abrogated on other grounds by Carpenter v. United States, ––– U.S. ––––, 138 S. Ct. 2206, 201 L.Ed.2d 507 (2018). Cases ‘‘involv[ing] direct government surveillance activity,’’ including surreptitiously viewing, listening to, or recording individuals—like the one before us—present a wholly separate question. Id.

15. Taketa, for example, held that a state employee could hold an expectation of privacy in his office even though the office was shared with two others. 923 F.2d at 673. ‘‘[E]ven ‘private’ business offices are often subject to the legitimate visits of coworkers, supervisors, and the public, without defeating the expectation of privacy unless the office is ‘so open to fellow employees or the public that no expectation of privacy is reasonable.’ ’’ Id. (quoting O’Connor v. Ortega, 480 U.S. 709, 717–18, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987)).
16. See also Taketa, 923 F.2d at 676 (‘‘Taketa has no general privacy interest in [his coworker’s] office, but he may have an expectation of privacy against being videotaped in it.’’); Trujillo, 428 F. Supp. 2d at 1102 (considering the secret installation and use of a video camera in a police department’s men’s locker room, and explaining that it was ‘‘immaterial’’ that the plaintiffs changed their clothes in the presence of others, because ‘‘[a] person can have a subjective expectation of privacy that he or she will not be covertly recorded, even though he or she knows there are other people in the locker room’’ (emphasis added)).

1036

965 FEDERAL REPORTER, 3d SERIES

given the intimate and religious nature of the space and the express prohibition on recording, Plaintiffs have adequately alleged that they subjectively believed their conversations would not be covertly recorded by someone not present in the prayer hall for transmission to people not present in the prayer hall.17
Having concluded that Plaintiffs exhibited a subjective expectation of privacy, we now consider whether it was ‘‘one that society is prepared to recognize as ‘reasonable.’ ’’ Katz, 389 U.S. at 361, 88 S.Ct. 507 (Harlan, J., concurring). In assessing whether an individual’s expectation of privacy is reasonable, context is key. See O’Connor, 480 U.S. at 715, 107 S.Ct. 1492. ‘‘Although no single rubric definitively resolves which expectations of privacy are entitled to protection, the analysis is informed by historical understandings ‘of what was deemed an unreasonable search and seizure when [the Fourth Amendment] was adopted.’ ’’ Carpenter, 138 S. Ct. at 2213–14 (alteration in original) (footnote omitted) (quoting Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 69 L.Ed. 543 (1925)). Relevant here is the principle that ‘‘the extent to which the Fourth Amendment protects people may depend upon where those people are.’’ Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (emphasis added).

We thus ‘‘assess the nature of the location where [the] conversations were seized’’— here, the mosque prayer hall. United States v. Gonzalez, Inc., 412 F.3d 1102, 1116–17 (9th Cir. 2005), amended on denial of reh’g, 437 F.3d 854 (9th Cir. 2006).
The sacred and private nature of the houses of worship Plaintiffs attended distinguishes them from the types of commercial and public spaces in which courts have held that individuals lack a reasonable expectation of privacy.18 United States v. Gonzalez, 328 F.3d 543 (9th Cir. 2003), for example, held that the defendant had no reasonable expectation of privacy in ‘‘a large, quasi-public mailroom at a public hospital during ordinary business hours.’’ Id. at 547. The mailroom had open doors, was visible to the outside via large windows, and received heavy foot traffic. Id. In addition to focusing on the physical specifics of the mailroom, Gonzalez emphasized that public hospitals, ‘‘by their nature TTT create a diminished expectation of privacy. The use of surveillance cameras in hospitals for patient protection, for documentation of medical procedures and to prevent theft of prescription drugs is not uncommon.’’ Id. The mosque prayer halls in this case, by contrast, have no characteristics similarly evidencing diminished expectations of privacy or rendering such expectations unreasonable.19 There are no

17. The complaint alleges that Plaintiffs lost ‘‘confidence in the mosque as a sanctuary’’ after learning of Monteilh’s surveillance. This feeling of the loss of privacy reinforces the conclusion that Plaintiffs exhibited an actual expectation of privacy in their conversations in the mosque before the alleged surveillance took place.
18. See, e.g., In re John Doe Trader No. One, 894 F.2d 240, 243–44 (7th Cir. 1990) (holding that a rule prohibiting tape recorders on the trading floor ‘‘aimed at various forms of distracting behavior’’ and explicitly ‘‘designed to protect ‘propriety and decorum’ not privacy’’ did not support a reasonable expectation of privacy).

19. Again, the fact that many people worshipped at the mosque does not render the Plaintiffs’ expectations of privacy in their conversations (or at the very least from, their expectations that their conversations would not be covertly recorded) unreasonable. In Gonzalez, Inc., for example, we held that individuals who owned and managed a small, family-run business with up to 25 employees had ‘‘a reasonable expectation of privacy over the on-site business conversations between their agents.’’ 412 F.3d at 1116–17. The Gonzalez family, whose phone calls were intercepted, were not alone in their place of business, and their calls could have been overheard by others who were present. But we concluded that they nonetheless had a

FAZAGA v. F.B.I.
Cite as 965 F.3d 1015 (9th Cir. 2020)

1037

urgent health or safety needs justifying surveillance. And the use of surveillance equipment at ICOI is not only uncommon, but expressly forbidden.
Our constitutional protection of religious observance supports finding a reasonable expectation of privacy in such a sacred space, where privacy concerns are acknowledged and protected, especially during worship and other religious observance. Cf. Mockaitis v. Harcleroad, 104 F.3d 1522, 1533 (9th Cir. 1997) (holding that, based in part on ‘‘the nation’s history of respect for religion in general,’’ a priest had a reasonable expectation of privacy in his conversation with an individual during confession), overruled on other grounds by City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). Thus, Plaintiffs’ expectation that their conversations in the mosque prayer hall would be confidential among participants (unless shared by one of them with others), and so would not be intercepted by recording devices planted by absent government agents was objectively reasonable.
[14] Finally, ‘‘[w]here the materials sought to be seized may be protected by the First Amendment, the requirements of the Fourth Amendment must be applied with ‘scrupulous exactitude.’ ’’ Zurcher v. Stanford Daily, 436 U.S. 547, 564, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978) (quoting Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965)). ‘‘National security cases,’’ like the one here, ‘‘often reflect a convergence of First and Fourth Amendment values not present in cases of ‘ordinary’ crime.’’ United States v. U.S. District Court (Keith), 407 U.S. 297, 313,

92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). ‘‘Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxyTTTT’’ Id. at 314, 92 S.Ct. 2125.
Accordingly, we hold that Plaintiffs had a reasonable expectation of privacy that their conversations in the mosque prayer hall would not be covertly recorded by a government agent not party to the conversations.
As of 2006 and 2007, however, no federal or state court decision had held that individuals generally have a reasonable expectation of privacy from surveillance in places of worship. Our court had declined to read Katz as established authority ‘‘for the proposition that a reasonable expectation of privacy attaches to church worship services open to the public.’’ The Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 527 (9th Cir. 1989). Noting that there was a lack of clearly established law so concluding, Presbyterian Church held that Immigration and Naturalization Service (‘‘INS’’) officials were entitled to qualified immunity from a Fourth Amendment challenge to undercover electronic surveillance of church services conducted without a warrant and without probable cause. Id. No case decided between Presbyterian Church and the incidents giving rise to this case decided otherwise. And no case decided during that period addressed circumstances more like those here, in which there are some specific manifestations of an expectation of privacy in the particular place of worship. Arguably pertinent was Mockaitis, but that case concerned the

reasonable expectation of privacy over their conversations because they owned the office, had full access to the building, and exercised managerial control over the office’s day-today operations. Id. Similarly, United States v. McIntyre, 582 F.2d 1221 (9th Cir. 1978), rejected the argument that a police officer

lacked a reasonable expectation of privacy over conversations had in his office because his office door was open and a records clerk worked nearby in an adjacent room. Id. at 1224. ‘‘A business office need not be sealed to offer its occupant a reasonable degree of privacy,’’ we reasoned. Id.

1038

965 FEDERAL REPORTER, 3d SERIES

confession booth, not the church premises generally. 104 F.3d at 1533. The circumstances here fall between Presbyterian Church and Mockaitis, so there was no clearly established law here applicable. The Agent Defendants are thus entitled to qualified immunity as to this category of surveillance.
C. Recordings Made by Planted Devices
[15] It was, of course, clearly established in 2006 and 2007 that individuals have a reasonable expectation of privacy from covert recording of conversations in their homes, cars, and offices, and on their phones. See, e.g., Kyllo, 533 U.S. at 31, 121 S.Ct. 2038 (home); New York v. Class, 475 U.S. 106, 115, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986) (cars); Katz, 389 U.S. at 360–61, 88 S.Ct. 507 (Harlan, J., concurring) (enclosed telephone booths); Taketa, 923 F.2d at 673 (office); McIntyre, 582 F.2d at 1223–24 (office). The Agent Defendants accept these well-established legal propositions. But they maintain that the complaint’s allegations that the FBI planted electronic surveillance equipment in Fazaga’s office and AbdelRahim’s house, car, and phone are too conclusory to satisfy Iqbal’s plausibility standard, and so do not adequately allege on the merits a violation of Plaintiffs’ rights under FISA. See al-Kidd, 563 U.S. at 735, 131 S.Ct. 2074; Ashcroft v. Iqbal, 556 U.S. 662, 678–79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). We cannot agree.
[16] Plaintiffs offer sufficient wellpleaded facts to substantiate their allegation that some of the Agent Defendants— Allen and Armstrong—were responsible for planting devices in AbdelRahim’s house. Specifically, the complaint details

one occasion on which Allen and Armstrong asked Monteilh about something that had happened in AbdelRahim’s house that Monteilh had not yet communicated to them, and explained that they knew about it because they had audio surveillance in the house.
Plaintiffs also allege sufficient facts with regard to those two Agent Defendants in support of their allegation of electronic surveillance of Fazaga’s office in the OCIF mosque in Mission Viejo: Allen and Armstrong told Monteilh that electronic surveillance was ‘‘spread indiscriminately’’ across ‘‘at least eight area mosques including ICOI, and mosques in Tustin, Mission Viejo, Culver City, Lomita, West Covina, and Upland,’’ and that ‘‘they could get in a lot of trouble if people found out what surveillance they had in the mosques.’’ They also instructed Monteilh to use a video camera hidden in a shirt button to record the interior of OCIF and ‘‘get a sense of the schematics of the place— entrances, exits, rooms, bathrooms, locked doors, storage rooms, as well as security measures and whether any security guards were armed.’’ Armstrong later told Monteilh that he and Allen used the information he recorded to enter OCIF.
As to Tidwell, Walls, and Rose, however, the complaint does not plausibly allege their personal involvement with respect to the planted devices.20 The complaint details Tidwell, Walls, and Rose’s oversight of Monteilh, including that they read his daily notes and were apprised, through Allen and Armstrong, of the information he collected. But the complaint never alleges that Monteilh was involved in planting devices in AbdelRahim’s house, car, or

20. Because we concluded with respect to the first two categories of surveillance either that Plaintiffs had no reasonable expectation of privacy or that the expectation was not clearly established in the case law at the pertinent

time, we reach the question whether Plaintiffs plausibly allege the personal involvement of Tidwell, Wall, and Rose only with respect to the third category of surveillance.

FAZAGA v. F.B.I.
Cite as 965 F.3d 1015 (9th Cir. 2020)

1039

phone, or in Fazaga’s office; those actions are attributed only to unnamed FBI agents.
[17, 18] The complaint also offers general statements that Tidwell, Walls, and Rose supervised Allen and Armstrong.21 But ‘‘[g]overnment officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.’’ Iqbal, 556 U.S. at 676, 129 S.Ct. 1937. Instead, ‘‘a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.’’ Id. Plaintiffs have not done so as to this category of surveillance with regard to Tidwell, Walls, and Rose. The complaint does not allege that the supervisors knew of, much less ordered or arranged for, the planting of the recording devices in AbdelRahim’s home or Fazaga’s office, so the supervisors are entitled to qualified immunity as to that surveillance. See, e.g., Chavez v. United States, 683 F.3d 1102, 1110 (9th Cir. 2012); Ortez v. Washington County, 88 F.3d 804, 809 (9th Cir. 1996).
In sum, Plaintiffs allege a FISA claim against Allen and Armstrong for recordings made by devices planted by FBI agents in AbdelRahim’s house and Fazaga’s office. As to all other categories of surveillance, the Agent Defendants either did not violate FISA; are entitled to qualified immunity on the FISA claim because Plaintiffs’ reasonable expectation of privacy was not clearly established; or were not plausibly alleged in the complaint to have committed any FISA violation that may have occurred.

II. The State Secrets Privilege and FISA Preemption
Having addressed the only claim to survive Defendants’ motions to dismiss in the district court, we turn to the district court’s dismissal of the remaining claims pursuant to the state secrets privilege.22 Plaintiffs argue that reversal is warranted ‘‘on either of two narrower grounds.’’ First, Plaintiffs argue that, at this preliminary stage, the district court erred in concluding that further litigation would require the disclosure of privileged information. Second, Plaintiffs maintain that the district court should have relied on FISA’s alternative procedures for handling sensitive national security information. Because we agree with Plaintiffs’ second argument, we do not decide the first. We therefore need not review the Government’s state secrets claim to decide whether the standard for dismissal at this juncture—whether the district court properly ‘‘determine[d] with certainty TTT that litigation must be limited or cut off in order to protect state secrets, even before any discovery or evidentiary requests have been made,’’ Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1081 (9th Cir. 2010) (en banc)—has been met.
The initial question as to Plaintiffs’ second argument is whether the procedures established under FISA for adjudicating the legality of challenged electronic surveillance replace the common law state secrets privilege with respect to such surveillance to the extent that privilege allows the categorical dismissal of causes of ac-

21. The relevant allegations were only that Walls and Rose ‘‘actively monitored, directed, and authorized the actions of Agents Allen and Armstrong and other agents at all times relevant in this action, for the purpose of surveilling Plaintiffs and other putative class members because they were Muslim’’ and that Tidwell ‘‘authorized and actively directed

the actions of Agents Armstrong, Allen, Rose, Walls, and other agents.’’
22. Plaintiffs do not dispute at this juncture the district court’s conclusion that the information over which the Attorney General asserted the state secrets privilege indeed comes within the privilege. We therefore assume as much for present purposes.

1040

965 FEDERAL REPORTER, 3d SERIES

tion. The question is a fairly novel one. We are the first federal court of appeals to address it. Only two district courts, both in our circuit, have considered the issue. Those courts both held that FISA ‘‘displace[s] federal common law rules such as the state secrets privilege with regard to matters within FISA’s purview.’’ Jewel v. NSA, 965 F. Supp. 2d 1090, 1105–06 (N.D. Cal. 2013); accord In re NSA Telecomms. Records Litig. (In re NSA), 564 F. Supp. 2d 1109, 1117–24 (N.D. Cal. 2008). We rely on similar reasoning to that in those district court decisions, but reach a narrower holding as to the scope of FISA preemption.
Our analysis of this issue proceeds as follows. First, we offer a brief review of the state secrets privilege. Second, we discuss one reason why the district court should not have dismissed the search claims based on the privilege. Third, we explain why FISA displaces the dismissal remedy of the common law state secrets privilege as applied to electronic surveillance generally. Then we review the situations in which FISA’s procedures under § 1806(f) apply, including affirmative constitutional challenges to electronic surveillance. Finally, we explain why the present case fits at least one of the situations in which FISA’s procedures apply.
Before we go on, we emphasize that although we hold that Plaintiffs’ electronic surveillance claims are not subject to outright dismissal at the pleading stage because FISA displaces the state secrets privilege, the FISA procedure is, not surprisingly, extremely protective of government secrecy. Under that procedure, Plaintiffs’ religion claims will not go forward under the open and transparent processes to which litigants are normally entitled. Instead, in the interest of protecting

national security, the stringent FISA procedures require severe curtailment of the usual protections afforded by the adversarial process and due process. See, e.g., Yamada v. Nobel Biocare Holding AG, 825 F.3d 536, 545 (9th Cir. 2016) (holding that the district court’s use of ex parte, in camera submissions to support its fee order violated defendants’ due process rights); Intel Corp. v. Terabyte Int’l, Inc., 6 F.3d 614, 623 (9th Cir. 1993) (same); MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986) (same). As it is Plaintiffs who have invoked the FISA procedures, we proceed on the understanding that they are willing to accept those restrictions to the degree they are applicable as an alternative to dismissal, and so may not later seek to contest them.23
A. The State Secrets Privilege
‘‘The Supreme Court has long recognized that in exceptional circumstances courts must act in the interest of the country’s national security to prevent disclosure of state secrets, even to the point of dismissing a case entirely.’’ Jeppesen, 614 F.3d at 1077 (citing Totten v. United States, 92 U.S. 105, 107, 23 L.Ed. 605 (1876)). Neither the Supreme Court nor this court has precisely delineated what constitutes a state secret. Reynolds referred to ‘‘military matters which, in the interest of national security, should not be divulged.’’ 345 U.S. at 10, 73 S.Ct. 528. Jeppesen added that not all classified information is necessarily privileged under Reynolds. 614 F.3d at 1082. The state secrets privilege has been held to apply to information that would result in ‘‘impairment of the nation’s defense capabilities, disclosure of intelligence-gathering methods or capabilities, and disruption of diplo-

23. We discuss how the district court is to apply the FISA procedures to Plaintiffs’ sur-

viving claims on remand in infra Part V.

FAZAGA v. F.B.I.
Cite as 965 F.3d 1015 (9th Cir. 2020)

1041

matic relations with foreign governments, or where disclosure would be inimical to national security.’’ Black v. United States, 62 F.3d 1115, 1118 (8th Cir. 1995) (citations and internal quotation marks omitted). But courts have acknowledged that terms like ‘‘military or state secrets’’ are ‘‘amorphous in nature,’’ id. (citation omitted); the phrase ‘‘inimical to national security’’ certainly is. And although purely domestic investigations with no international connection do not involve state secrets, we recognize that the contours of the privilege are perhaps even more difficult to draw in a highly globalized, post-9/11 environment, where the lines between foreign and domestic security interests may be blurred.
[19] We do not attempt to resolve the ambiguity or to explain definitively what constitutes a ‘‘state secret.’’ But we note the ambiguity nonetheless at the outset, largely as a reminder that, as our court has previously noted, ‘‘[s]imply saying ‘military secret,’ ‘national security’ or ‘terrorist threat’ or invoking an ethereal fear that disclosure will threaten our nation is insufficient to support the privilege.’’ Al-Haramain Islamic Found., Inc. v. Bush (AlHaramain I), 507 F.3d 1190, 1203 (9th Cir. 2007).
[20, 21] Created by federal common law, the modern state secrets doctrine has two applications: the Totten bar and the Reynolds privilege. The Totten bar is invoked ‘‘ ‘where the very subject matter of the action’ is ‘a matter of state secret.’ ’’ Id. at 1077 (quoting Reynolds, 345 U.S. at 11 n.26, 73 S.Ct. 528). It ‘‘completely bars adjudication of claims premised on state secrets.’’ Id.; see also Totten, 92 U.S. at 106–07. The Reynolds privilege, by contrast, ‘‘is an evidentiary privilege rooted in federal common law.’’ Kasza v. Browner, 133 F.3d 1159, 1167 (9th Cir. 1998); see also Gen. Dynamics Corp. v. United States, 563 U.S. 478, 485, 131 S.Ct. 1900, 179 L.Ed.2d 957 (2011). It ‘‘may be assert-

ed at any time,’’ and successful assertion ‘‘will remove the privileged evidence from the litigation.’’ Jeppesen, 614 F.3d at 1079– 80.
[22, 23] Here, after the Attorney General asserted the Reynolds privilege and the Government submitted both public and classified declarations setting out the parameters of its state secrets contention, the Government Defendants requested dismissal of Plaintiffs’ religion claims in toto—but not the Fourth Amendment and FISA claims—at the pleading stage. ‘‘Dismissal at the pleading stage under Reynolds is a drastic result and should not be readily granted.’’ Jeppesen, 614 F.3d at 1089. Only ‘‘if state secrets are so central to a proceeding that it cannot be litigated without threatening their disclosure’’ is dismissal the proper course. Id. at 1081 (quoting El-Masri v. United States, 479 F.3d 296, 308 (4th Cir. 2007)). Because there is a strong interest in allowing otherwise meritorious litigation to go forward, the court’s inquiry into the need for the secret information should be specific and tailored, not vague and general. See id. at 1081–82; In re Sealed Case, 494 F.3d 139, 144–54 (D.C. Cir. 2007).
[24] Specifically, the Reynolds privilege will justify dismissal of the action in three circumstances: (1) if ‘‘the plaintiff cannot prove the prima facie elements of her claim with nonprivileged evidence’’; (2) if ‘‘the privilege deprives the defendant of information that would otherwise give the defendant a valid defense to the claim’’; and (3) if ‘‘privileged evidence’’ is ‘‘inseparable from nonprivileged information that will be necessary to the claims or defenses’’ such that ‘‘litigating the case to a judgment on the merits would present an unacceptable risk of disclosing state secrets.’’ Jeppesen, 614 F.3d at 1083 (citations omitted). The district court assumed that Plaintiffs could make a prima facie

1042

965 FEDERAL REPORTER, 3d SERIES

case without resorting to state secrets evidence, but determined that the second and third circumstances exist in this case and require dismissal.
B. The District Court’s Dismissal of the Search Claims Based on the State Secrets Privilege
[25] As a threshold matter, before determining whether FISA displaces the state secrets privilege with regard to electronic surveillance, we first consider which of Plaintiffs’ claims might otherwise be subject to dismissal under the state secrets privilege. Although the Government expressly did not request dismissal of the Fourth Amendment and FISA claims based on the privilege, the district court nonetheless dismissed the Fourth Amendment claim on that basis. That was error.
[26, 27] The Government must formally claim the Reynolds privilege. Reynolds, 345 U.S. at 7–8, 73 S.Ct. 528. The privilege is ‘‘not simply an administrative formality’’ that may be asserted by any official. Jeppesen, 614 F.3d at 1080 (quoting United States v. W.R. Grace, 526 F.3d 499, 507–08 (9th Cir. 2008) (en banc)). Rather, the formal claim must be ‘‘lodged by the head of the department which has control over the matter.’’ Reynolds, 345 U.S. at 8, 73 S.Ct. 528. The claim must ‘‘reflect the certifying official’s personal judgment; responsibility for [asserting the privilege] may not be delegated to lesser-ranked officials.’’ Jeppesen, 614 F.3d at 1080. And the claim ‘‘must be presented in sufficient detail for the court to make an independent determination of the validity of the claim of privilege and the scope of the evidence subject to the privilege.’’ Id. Such unusually strict procedural requirements exist because ‘‘[t]he privilege ‘is not to be lightly invoked,’ ’’ especially when dismissal of the entire action is sought. Id. (quoting Reynolds, 345 U.S. at 7, 73 S.Ct. 528).

Here, although the Government has claimed the Reynolds privilege over certain state secrets, it has not sought dismissal of the Fourth Amendment and FISA claims based on its invocation of the privilege. In light of that position, the district court should not have dismissed those claims. In doing so, its decision was inconsistent with Jeppesen’s observation that, ‘‘[i]n evaluating the need for secrecy, ‘we acknowledge the need to defer to the Executive on matters of foreign policy and national security and surely cannot legitimately find ourselves second guessing the Executive in this arena.’ ’’ 614 F.3d at 1081–82 (quoting Al-Haramain I, 507 F.3d at 1203). Just as the Executive is owed deference when it asserts that exclusion of the evidence or dismissal of the case is necessary to protect national security, so the Executive is necessarily also owed deference when it asserts that national security is not threatened by litigation.
Indeed, Jeppesen cautioned that courts should work ‘‘to ensure that the state secrets privilege is asserted no more frequently and sweepingly than necessary.’’ Id. at 1082 (quoting Ellsberg v. Mitchell, 709 F.2d 51, 58 (D.C. Cir. 1983)). Dismissing claims based on the privilege where the Government has expressly told the court it is not necessary to do so—and, in particular, invoking the privilege to dismiss, at the pleading stage, claims the Government has expressly told the court it need not dismiss on grounds of privilege— cuts directly against Jeppesen’s call for careful, limited application of the privilege.
Although the Government Defendants expressly did not request dismissal of the search claims under the state secrets privilege, the Agent Defendants did so request. In declining to seek dismissal of the search claims based on the state secrets privilege, the Government explained:

FAZAGA v. F.B.I.
Cite as 965 F.3d 1015 (9th Cir. 2020)

1043

At least at this stage of the proceedings, sufficient non-privileged evidence may be available to litigate these claims should they otherwise survive motions to dismiss on non-privilege grounds. The FBI has previously disclosed in a separate criminal proceeding that Monteilh collected audio and video information for the FBI, and some of that audio and video information was produced in that prior case. The FBI has been reviewing additional audio and video collected by Monteilh for possible disclosure in connection with further proceedings on the issue of whether the FBI instructed or permitted Monteilh to leave recording devices unattended in order to collect non-consenting communications. The FBI expects that the majority of the audio and video will be available in connection with further proceedings. Thus, while it remains possible that the need to protect properly privileged national security information might still foreclose litigation of these claims, at present the FBI and official capacity defendants do not seek to dismiss these claims based on the privilege assertion.
The Agent Defendants note that the Government focuses on the public disclosure of recordings collected by Monteilh, and point out that Plaintiffs also challenge surveillance conducted without Monteilh’s involvement—namely, the planting of recording devices by FBI agents in Fazaga’s office and AbdelRahim’s home, car, and phone. Allegations concerning the planting of recording devices by FBI agents other than Monteilh, the Agent Defendants argue, are the ‘‘sources and methods’’ discussed in the Attorney General’s invocation of the privilege. The

Agent Defendants thus maintain that because the Government’s reasons for not asserting the privilege over the search claims do not apply to all of the surveillance encompassed by the search claims, dismissal as to the search claims is in fact necessary.
The Agent Defendants, however, are not uniquely subject to liability for the planted devices. The Fourth Amendment claim against the Government Defendants likewise applies to that category of surveillance. See infra Part III.A. The Agent Defendants—officials sued in their individual capacities—are not the protectors of the state secrets evidence; the Government is. Accordingly, and because the Agent Defendants have not identified a reason they specifically require dismissal to protect against the harmful disclosure of state secrets where the Government does not, we decline to accept their argument that the Government’s dismissal defense must be expanded beyond the religion claims.24
In short, in determining sua sponte that particular claims warrant dismissal under the state secrets privilege, the district court erred. For these reasons, we will not extend FISA’s procedures to challenges to the lawfulness of electronic surveillance to the degree the Government agrees that such challenges may be litigated in accordance with ordinary adversarial procedures without compromising national security.
C. FISA Displacement of the State Secrets Privilege
[28, 29] Before the enactment of FISA in 1978, foreign intelligence surveillance

24. Although the Government may assert the state secrets privilege even when it is not a party to the case, see Jeppesen, 614 F.3d at 1080, we have not found—and the Agent Defendants have not cited—any case other than the one at hand in which a court granted

dismissal under the privilege as to non-Government defendants, notwithstanding the Government’s assertion that the claims at issue may be litigated with nonprivileged information.

1044

965 FEDERAL REPORTER, 3d SERIES

and the treatment of evidence implicating state secrets were governed purely by federal common law. Federal courts develop common law ‘‘in the absence of an applicable Act of Congress.’’ City of Milwaukee v. Illinois and Michigan, 451 U.S. 304, 313, 101 S.Ct. 1784, 68 L.Ed.2d 114 (1981). ‘‘Federal common law is,’’ however, ‘‘a ‘necessary expedient’ and when Congress addresses a question previously governed by a decision rested on federal common law the need for such an unusual exercise of lawmaking by federal courts disappears.’’ Id. (citation omitted). Once ‘‘the field has been made the subject of comprehensive legislation or authorized administrative standards,’’ federal common law no longer applies. Id. (quoting Texas v. Pankey, 441 F.2d 236, 241 (10th Cir. 1971)).
[30, 31] To displace federal common law, Congress need not ‘‘affirmatively proscribe[ ] the use of federal common law.’’ Id. at 315, 101 S.Ct. 1784. Rather, ‘‘to abrogate a common-law principle, the statute must ‘speak directly’ to the question addressed by the common law.’’ United States v. Texas, 507 U.S. 529, 534, 113 S.Ct. 1631, 123 L.Ed.2d 245 (1993) (quoting Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978)). As we now explain, in enacting FISA, Congress displaced the common law dismissal remedy created by the Reynolds state secrets privilege as applied to electronic surveillance within FISA’s purview.25
[32] We have specifically held that because ‘‘the state secrets privilege is an evidentiary privilege rooted in federal common law TTT the relevant inquiry in deciding if [a statute] preempts the state secrets privilege is whether the statute

‘[speaks] directly to [the] question otherwise answered by federal common law.’ ’’ Kasza, 133 F.3d at 1167 (second and third alterations in original) (quoting County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 236–37, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985)).26 Nonetheless, the Government maintains, in a vague and short paragraph in its brief, that Congress cannot displace the state secrets evidentiary privilege absent a clear statement, and that, because Plaintiffs cannot point to a clear statement, ‘‘principles of constitutional avoidance’’ require rejecting the conclusion that FISA’s procedures displace the dismissal remedy of the state secrets privilege with regard to electronic surveillance.
In support of this proposition, the Government cites two out-of-circuit cases, ElMasri v. United States, 479 F.3d 296, and Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991). El-Masri does not specify a clear statement rule; it speaks generally about the constitutional significance of the state secrets privilege, while recognizing its common law roots. 479 F.3d at 303–04. Armstrong holds generally that the clear statement rule must be applied ‘‘to statutes that significantly alter the balance between Congress and the President,’’ but does not apply that principle to the state secrets privilege. 924 F.2d at 289. So neither case is directly on point.
Under our circuit’s case law, a clear statement in the sense of an explicit abrogation of the common law state secrets privilege is not required to decide that a statute displaces the privilege. Rather, if ‘‘the statute ‘[speaks] directly to [the] question otherwise answered by federal common law,’ ’’ that is sufficient. Kasza,

25. Our holding concerns only the Reynolds privilege, not the Totten justiciability bar.
26. Applying this principle, Kasza concluded that section 6001 of the Resource Conserva-

tion and Recovery Act (‘‘RCRA’’), 42 U.S.C. § 6961, did not preempt the state secrets privilege as to RCRA regulatory material, as ‘‘the state secrets privilege and § 6001 have different purposes.’’ 133 F.3d at 1168.

FAZAGA v. F.B.I.
Cite as 965 F.3d 1015 (9th Cir. 2020)

1045

133 F.3d at 1167 (second and third alterations in original) (quoting Oneida, 470 U.S. at 236–37, 105 S.Ct. 1245); see also Texas, 507 U.S. at 534, 113 S.Ct. 1631. Although we, as a three-judge panel, could not hold otherwise, we would be inclined in any event to reject any clear statement rule more stringent than Kasza’s ‘‘speak directly to the question’’ requirement in this context.
[33] The state secrets privilege may have ‘‘a constitutional ‘core’ or constitutional ‘overtones,’ ’’ In re NSA, 564 F. Supp. 2d at 1124, but, at bottom, it is an evidentiary rule rooted in common law, not constitutional law. The Supreme Court has so emphasized, explaining that Reynolds ‘‘decided a purely evidentiary dispute by applying evidentiary rules.’’ Gen. Dynamics, 563 U.S. at 485, 131 S.Ct. 1900. To require express abrogation, by name, of the state secrets privilege would be inconsistent with the evidentiary roots of the privilege.
In any event, the text of FISA does speak quite directly to the question otherwise answered by the dismissal remedy sometimes required by the common law state secrets privilege. Titled ‘‘In camera and ex parte review by district court,’’ § 1806(f) provides:
Whenever a court or other authority is notified pursuant to subsection (c) or (d) of this section, or whenever a motion is made pursuant to subsection (e) of this section, or whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter, the United States district

court or, where the motion is made before another authority, the United States district court in the same district as the authority, shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted. In making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.
50 U.S.C. § 1806(f) (emphasis added).
[34] The phrase ‘‘notwithstanding any other law,’’ the several uses of the word ‘‘whenever,’’ and the command that courts ‘‘shall’’ use the § 1806(f) procedures to decide the lawfulness of the surveillance if the Attorney General asserts that national security is at risk, confirm Congress’s intent to make the in camera and ex parte procedure the exclusive procedure for evaluating evidence that threatens national security in the context of electronic surveillance-related determinations. Id. (emphasis added). That mandatory procedure necessarily overrides, on the one hand, the usual procedural rules precluding such severe compromises of the adversary process and, on the other, the state secrets evidentiary dismissal option. See H.R. Rep. No. 95-1283, pt. 1, at 91 (1978) (‘‘It is to be emphasized that, although a number of different procedures might be used to attack the legality of the surveillance, it is the procedures set out in subsections (f) and (g) ‘notwithstanding any other law’

1046

965 FEDERAL REPORTER, 3d SERIES

that must be used to resolve the question.’’).27
The procedures set out in § 1806(f) are animated by the same concerns—threats to national security—that underlie the state secrets privilege. See Jeppesen, 614 F.3d at 1077, 1080. And they are triggered by a process—the filing of an affidavit under oath by the Attorney General— nearly identical to the process that triggers application of the state secrets privilege, a formal assertion by the head of the relevant department. See id. at 1080. In this sense, § 1806(f) ‘‘is, in effect, a ‘codification of the state secrets privilege for purposes of relevant cases under FISA, as modified to reflect Congress’s precise directive to the federal courts for the handling of [electronic surveillance] materials and information with purported national security implications.’ ’’ Jewel, 965 F. Supp. 2d at 1106 (quoting In re NSA, 564 F. Supp. 2d at 1119); see also In re NSA, 564 F. Supp. 2d at 1119 (holding that ‘‘the Reynolds protocol has no role where section 1806(f) applies’’). That § 1806(f) requires in camera and ex parte review in the exact circumstance that could otherwise trigger dismissal of the case demonstrates that § 1806(f) supplies an alternative mechanism for the consideration of electronic state secrets evidence. Section 1806(f) therefore eliminates the need to dismiss the case entirely because of the absence of any legally sanctioned mechanism for a major modification of ordinary judicial procedures—in camera, ex parte decisionmaking.
This conclusion is consistent with the overall structure of FISA. FISA does not concern Congress and the President alone. Instead, the statute creates ‘‘a comprehen-

sive, detailed program to regulate foreign intelligence surveillance in the domestic context.’’ In re NSA, 564 F. Supp. 2d at 1118. FISA ‘‘set[s] out in detail roles for all three branches of government, providing judicial and congressional oversight of the covert surveillance activities by the executive branch combined with measures to safeguard secrecy necessary to protect national security.’’ Id. at 1115. And it provides rules for the executive branch to follow in ‘‘undertak[ing] electronic surveillance and physical searches for foreign intelligence purposes in the domestic sphere.’’ Id.
Moreover, FISA establishes a special court to hear applications for and grant orders approving electronic surveillance under certain circumstances. See 50 U.S.C. § 1803. FISA also includes a private civil enforcement mechanism, see id. § 1810, and sets out a procedure by which courts should consider evidence that could harm the country’s national security, see id. § 1806(f). The statute thus broadly involves the courts in the regulation of electronic surveillance relating to national security, while devising extraordinary, partially secret judicial procedures for carrying out that involvement. And Congress expressly declared that FISA, along with the domestic law enforcement electronic surveillance provisions of the Wiretap Act and the Stored Communications Act, are ‘‘the exclusive means by which electronic surveillance TTT may be conducted.’’ 18 U.S.C. § 2511(2)(f).
The legislative history of FISA confirms Congress’s intent to displace the remedy of dismissal for the common law state secrets privilege. FISA was enacted in response to ‘‘revelations that warrantless

27. Whether ‘‘notwithstanding’’ language in a given statute should be understood to supersede all otherwise applicable laws or read more narrowly to override only previously existing laws depends on the overall context

of the statute. See United States v. Novak, 476 F.3d 1041, 1046–47 (9th Cir. 2007) (en banc). Here, the distinction does not matter, as the Reynolds common law state secrets evidentiary privilege preceded the enactment of FISA.

FAZAGA v. F.B.I.
Cite as 965 F.3d 1015 (9th Cir. 2020)

1047

electronic surveillance in the name of national security ha[d] been seriously abused.’’ S. Rep. No. 95-604, pt. 1, at 7 (1978), reprinted in 1978 U.S.C.C.A.N. 3904, 3908. The Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, a congressional task force formed in 1975 and known as the Church Committee, exposed the unlawful surveillance in a series of investigative reports. The Church Committee documented ‘‘a massive record of intelligence abuses over the years,’’ in which ‘‘the Government ha[d] collected, and then used improperly, huge amounts of information about the private lives, political beliefs and associations of numerous Americans.’’ S. Select Comm. to Study Governmental Operations with Respect to Intelligence Activities, Book II: Intelligence Activities and the Rights of Americans, S. Rep. No. 94-755, at 290 (1976). The Committee concluded that these abuses had ‘‘undermined the constitutional rights of citizens TTT primarily because checks and balances designed by the framers of the Constitution to assure accountability [were not] applied.’’ Id. at 289.
Urging ‘‘fundamental reform,’’ id. at 289, the Committee recommended legislation to ‘‘make clear to the Executive branch that it will not condone, and does not accept, any theory of inherent or implied authority to violate the Constitution,’’ id. at 297. Observing that the Executive would have ‘‘no such authority after Congress has TTT covered the field by enactment of a comprehensive legislative charter’’ that would ‘‘provide the exclusive legal authority for domestic security activities,’’ id. at 297, the Committee recommended that Congress create civil remedies for unlawful surveillance, both to ‘‘afford effective redress to people who are injured by improper federal intelligence activity’’ and to ‘‘deter improper intelligence activity,’’ id. at 336. Further, in recognition of the potential interplay between promoting accountabili-

ty and ensuring security, the Committee noted its ‘‘belie[f] that the courts will be able to fashion discovery procedures, including inspection of material in chambers, and to issue orders as the interests of justice require, to allow plaintiffs with substantial claims to uncover enough factual material to argue their case, while protecting the secrecy of governmental information in which there is a legitimate security interest.’’ Id. at 337.
FISA implemented many of the Church Committee’s recommendations. In striking a careful balance between assuring the national security and protecting against electronic surveillance abuse, Congress carefully considered the role previously played by courts, and concluded that the judiciary had been unable effectively to achieve an appropriate balance through federal common law:
[T]he development of the law regulating electronic surveillance for national security purposes has been uneven and inconclusive. This is to be expected where the development is left to the judicial branch in an area where cases do not regularly come before it. Moreover, the development of standards and restrictions by the judiciary with respect to electronic surveillance for foreign intelligence purposes accomplished through case law threatens both civil liberties and the national security because that development occurs generally in ignorance of the facts, circumstances, and techniques of foreign intelligence electronic surveillance not present in the particular case before the courtTTTT [T]he tiny window to this area which a particular case affords provides inadequate light by which judges may be relied upon to develop case law which adequately balances the rights of privacy and national security.
H. Rep. No. 95-1283, pt. 1, at 21. FISA thus represents an effort to ‘‘provide effec-

1048

965 FEDERAL REPORTER, 3d SERIES

tive, reasonable safeguards to ensure accountability and prevent improper surveillance,’’ and to ‘‘strik[e] a fair and just balance between protection of national security and protection of personal liberties.’’ S. Rep. No. 95-604, pt. 1, at 7.
In short, the procedures outlined in § 1806(f) ‘‘provide[ ] a detailed regime to determine whether surveillance ‘was lawfully authorized and conducted,’ ’’ Al-Haramain I, 507 F.3d at 1205 (citing 50 U.S.C. § 1806(f)), and constitute ‘‘Congress’s specific and detailed description for how courts should handle claims by the government that the disclosure of material relating to or derived from electronic surveillance would harm national security,’’ Jewel, 965 F. Supp. 2d at 1106 (quoting In re NSA, 564 F. Supp. 2d at 1119). Critically, the FISA approach does not publicly expose the state secrets. It does severely compromise Plaintiffs’ procedural rights, but not to the degree of entirely extinguishing potentially meritorious substantive rights.
D. Applicability of FISA’s § 1806(f) Procedures to Affirmative Legal Challenges to Electronic Surveillance
Having determined that, where they apply, § 1806(f)’s procedures displace a dismissal remedy for the Reynolds state secrets privilege, we now consider whether § 1806(f)’s procedures apply to the circumstances of this case.
By the statute’s terms, the procedures set forth in § 1806(f) are to be used— where the Attorney General files the requisite affidavit—in the following circumstances:

[w]henever a court or other authority is notified pursuant to subsection (c) or (d) of this section, or whenever a motion is made pursuant to subsection (e) of this section, or whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter.
50 U.S.C. § 1806(f). From this text and the cross-referenced subsections, we derive three circumstances in which the in camera and ex parte procedures are to be used: when (1) a governmental body gives notice of its intent ‘‘to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, against an aggrieved person, any information obtained or derived from an electronic surveillance,’’ id. § 1806(c) (emphases added);28 (2) an aggrieved person moves to suppress the evidence, id. § 1806(e); or (3) an aggrieved person makes ‘‘any motion or request TTT pursuant to any other statute or rule TTT to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter,’’ id. § 1806(f) (emphasis added).

28. The text of § 1806(f) refers to notice ‘‘pursuant to subsection (c) or (d) of this section.’’ 50 U.S.C. § 1806(f) (emphasis added). Section 1806(d) describes verbatim the same procedures as contained in § 1806(c), except as

applied to States and political subdivisions rather than to the United States. Id. § 1806(d). For convenience, we refer only to § 1806(c) in this opinion, but our analysis applies to § 1806(d) with equal force.

FAZAGA v. F.B.I.
Cite as 965 F.3d 1015 (9th Cir. 2020)

1049

The case at hand fits within the contemplated circumstances in two respects. First, although the Government has declined to confirm or deny in its public submissions that the information with respect to which it has invoked the state secrets privilege was obtained or derived from FISA-covered electronic surveillance of Plaintiffs, see id. § 1806(c), the complaint alleges that it was. The Attorney General’s privilege assertion encompassed, among other things, ‘‘any information obtained during the course of’’ Operation Flex, the ‘‘results of the investigation,’’ and ‘‘any results derived from’’ the ‘‘sources and methods’’ used in Operation Flex. It is precisely because the Government would like to use this information to defend itself that it has asserted the state secrets privilege. The district court’s dismissal ruling was premised in part on the potential use of state secrets material to defend the case. Because the district court made the ruling after reviewing the surveillance materials, it is aware whether the allegations in the complaint concerning electronic surveillance are factually supported. Of course, if they are not, then the district court can decide on remand that the FISA procedures are inapplicable. For purposes of this opinion, we proceed on the premise that the Attorney General’s invocation of the state secrets privilege relied on the potential use of material obtained or derived from electronic surveillance, as alleged in the complaint.
Second, in their prayer for relief, Plaintiffs have requested injunctive relief ‘‘ordering Defendants to destroy or return any information gathered through the unlawful surveillance program by Monteilh

and/or Operation Flex described above, and any information derived from that unlawfully obtained information.’’ Plaintiffs thus have requested, in the alternative, to ‘‘obtain’’ information gathered during or derived from electronic surveillance. See id. § 1806(f).
The Government disputes that FISA applies to this case. Its broader contention is that § 1806(f)’s procedures do not apply to any affirmative claims challenging the legality of electronic surveillance or the use of information derived from electronic surveillance, whether brought under FISA’s private right of action or any other constitutional provision, statute, or rule. Instead, the Government maintains, FISA’s procedures apply only when the government initiates the legal action, while the state secrets privilege applies when the government defends affirmative litigation brought by private parties.
[35] The plain text and statutory structure of FISA provide otherwise. To begin, the language of the statute simply does not contain the limitations the Government suggests. As discussed above, § 1806(f)’s procedures are to be used in any one of three situations, each of which is separated in the statute by an ‘‘or.’’ See id. The first situation—when ‘‘the Government intends to enter into evidence or otherwise use or disclose information obtained or derived from an electronic surveillance TTT against an aggrieved person’’ in ‘‘any trial, hearing, or other proceeding,’’ id. § 1806(c) (emphasis added)—unambiguously encompasses affirmative as well as defensive challenges to the lawfulness of surveillance.29 The conduct governed by the statutory provision is the Government’s in-

29. In full, § 1806(c) reads:
Whenever the Government intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, against an aggrieved

person, any information obtained or derived from an electronic surveillance of that aggrieved person pursuant to the authority of this subchapter, the Government shall, prior to the trial, hearing, or other proceeding or at a reasonable time prior to an effort to so disclose or so use that informa-

1050

965 FEDERAL REPORTER, 3d SERIES

tended entry into evidence or other use or disclosure of information obtained or derived from electronic surveillance. ‘‘[A]gainst an aggrieved person’’ refers to and modifies the phrase ‘‘any information obtained or derived.’’ Id. As a matter of ordinary usage, the phrase ‘‘against an aggrieved person’’ cannot modify ‘‘any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States.’’ Id. Evidence—such as ‘‘any information obtained or derived from an electronic surveillance’’—can properly be said to be ‘‘against’’ a party. See, e.g., U.S. Const. amend. V (‘‘No person TTT shall be compelled in any criminal case to be a witness against himselfTTTT’’); Miranda v. Arizona, 384 U.S. 436, 460, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (‘‘[O]ur accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth.’’ (emphasis added)). But a ‘‘trial, hearing, or other proceeding’’ is not for or against either party; such a proceeding is just an opportunity to introduce evidence. Also, as the phrase is set off by commas, ‘‘against an aggrieved person’’ is grammatically a separate modifier from the list of proceedings contained in § 1806(f). Were the phrase meant to modify the various proceedings, there would be no intervening comma setting it apart.
The third situation—when a ‘‘motion or request is made by an aggrieved person pursuant to any other statute or rule TTT before any court TTT to discover or obtain applications or orders or other materials

relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter,’’ id. § 1806(f)—also by its plain text encompasses affirmative challenges to the legality of electronic surveillance. When an aggrieved person makes such a motion or request, or the government notifies the aggrieved person and the court that it intends to use or disclose information obtained or derived from electronic surveillance, the statute requires a court to use § 1806(f)’s procedures ‘‘to determine whether the surveillance TTT was lawfully authorized and conducted.’’ Id. In other words, a court must ‘‘determine whether the surveillance was authorized and conducted in a manner which did not violate any constitutional or statutory right.’’ S. Rep. No. 95-604, pt. 1, at 57; accord S. Rep. No. 95-701, at 63.
The inference drawn from the text of § 1806 is bolstered by § 1810, which specifically creates a private right of action for an individual subjected to electronic surveillance in violation of FISA. FISA prohibits, for example, electronic surveillance of a U.S. person ‘‘solely upon the basis of activities protected by the first amendment to the Constitution of the United States.’’ 50 U.S.C. § 1805(a)(2)(A). Here, Plaintiffs allege they were surveilled solely on account of their religion. If true, such surveillance was necessarily unauthorized by FISA, and § 1810 subjects any persons who intentionally engaged in such surveillance to civil liability. It would make no sense for Congress to pass a comprehensive law concerning foreign intelligence surveillance, expressly enable aggrieved persons to sue for damages when that

tion or submit it in evidence, notify the aggrieved person and the court or other authority in which the information is to be disclosed or used that the Government intends to so disclose or so use such information.

50 U.S.C. § 1806(c). Again, we refer to the text of § 1806(c) because § 1806(f)’s procedures apply ‘‘[w]henever a court or other authority is notified pursuant to subsection (c) or (d) of this section.’’ Id. § 1806(f).

FAZAGA v. F.B.I.
Cite as 965 F.3d 1015 (9th Cir. 2020)

1051

surveillance is unauthorized, see id. § 1810, and provide procedures deemed adequate for the review of national security-related evidence, see id. § 1806(f), but not intend for those very procedures to be used when an aggrieved person sues for damages under FISA’s civil enforcement mechanism. Permitting a § 1810 claim to be dismissed on the basis of the state secrets privilege because the § 1806(f) procedures are unavailable would dramatically undercut the utility of § 1810 in deterring FISA violations. Such a dismissal also would undermine the overarching goal of FISA more broadly—‘‘curb[ing] the practice by which the Executive Branch may conduct warrantless electronic surveillance on its own unilateral determination that national security justifies it.’’ S. Rep. No. 95-604, pt. 1, at 8.
FISA’s legislative history confirms that § 1806(f)’s procedures were designed to apply in both civil and criminal cases, and to both affirmative and defensive use of electronic surveillance evidence. The Senate bill initially provided a single procedure for criminal and civil cases, while the House bill at the outset specified two separate procedures for determining the legality of electronic surveillance.30 In the end, the conference committee adopted a slightly modified version of the Senate bill, agreeing ‘‘that an in camera and ex parte proceeding is appropriate for determining the lawfulness of electronic surveillance in both criminal and civil cases.’’ H.R. Rep. No. 95-1720, at 32.
In the alternative, the Government suggests that § 1806(f)’s procedures for the

use of electronic surveillance in litigation are limited to affirmative actions brought directly under § 1810. We disagree. The § 1806(f) procedures are expressly available, as well as mandatory, for affirmative claims brought ‘‘by an aggrieved person pursuant to any TTT statute or rule of the United States TTT before any court TTT of the United States.’’ 50 U.S.C. § 1806(f) (emphasis added). This provision was meant ‘‘to make very clear that these procedures apply whatever the underlying rule or statute’’ at issue, so as ‘‘to prevent these carefully drawn procedures from being bypassed by the inventive litigant using a new statute, rule or judicial construction.’’ H.R. Rep. No. 95-1283, pt. 1, at 91 (emphasis added).
Had Congress wanted to limit the use of § 1806(f)’s procedures only to affirmative claims alleging lack of compliance with FISA itself, it could have so specified, as it did in § 1809 and § 1810. Section 1810 creates a private right of action only for violations of § 1809. 50 U.S.C. § 1810. Section 1809 prohibits surveillance not authorized by FISA, the Wiretap Act, the Stored Communications Act, and the pen register statute. Id. § 1809(a). That § 1809 includes only certain, cross-referenced statutes while § 1810 is limited to violations of § 1809 contrasts with the broad language of § 1806(f) as to the types of litigation covered—litigation ‘‘pursuant to any TTT statute or rule of the United States.’’ Id. § 1806(f) (emphasis added).
Furthermore, if—as here—an aggrieved person brings a claim under § 1810 and a

30. Under the House bill, in criminal cases there would be an in camera proceeding, and the court could, but need not, disclose the materials relating to the surveillance to the aggrieved person ‘‘if there were a reasonable question as to the legality of the suveillance [sic] and if disclosure would likely promote a more accurate determination of such legality, or if disclosure would not harm the national

security.’’ H.R. Rep. No. 95-1720, at 31 (1978) (Conf. Rep.), reprinted in 1978 U.S.C.C.A.N. 4048, 4060. In civil suits, there would be an in camera and ex parte proceeding before a court of appeals, and the court would disclose to the aggrieved person the materials relating to the surveillance ‘‘only if necessary to afford due process to the aggrieved person.’’ Id. at 32.

1052

965 FEDERAL REPORTER, 3d SERIES

claim under another statute or the Constitution based on the same electronic surveillance as is involved in the § 1810 claim, it would make little sense for § 1806(f) to require the court to consider in camera and ex parte the evidence relating to electronic surveillance for purposes of the claim under § 1810 of FISA but not permit the court to consider the exact same evidence in the exact same way for purposes of the non-FISA claim. Once the information has been considered by a federal judge in camera and ex parte, any risk of disclosure—which Congress necessarily considered exceedingly small or it would not have permitted such examination—has already been incurred. There would be no point in dismissing other claims because of that same concern.
We are not the first to hold that § 1806(f)’s procedures may be used to adjudicate claims beyond those arising under § 1810. The D.C. Circuit expressly so held in ACLU Foundation of Southern California v. Barr, 952 F.2d 457 (D.C. Cir. 1991):
When a district court conducts a § 1806(f) review, its task is not simply to

decide whether the surveillance complied with FISA. Section 1806(f) requires the court to decide whether the surveillance was ‘‘lawfully authorized and conducted.’’ The Constitution is law. Once the Attorney General invokes § 1806(f), the respondents named in that proceeding therefore must present not only their statutory but also their constitutional claims for decision.
Id. at 465; accord United States v. Johnson, 952 F.2d 565, 571–73, 571 n.4 (1st Cir. 1991) (using § 1806(f)’s in camera and ex parte procedures to review constitutional challenges to FISA surveillance).
In sum, the plain language, statutory structure, and legislative history demonstrate that Congress intended FISA to displace the state secrets privilege and its dismissal remedy with respect to electronic surveillance. Contrary to the Government’s contention, FISA’s § 1806(f) procedures are to be used when an aggrieved person affirmatively challenges, in any civil case, the legality of electronic surveillance or its use in litigation, whether the challenge is under FISA itself, the Constitution, or any other law.31

31. The Agent Defendants suggest that using the § 1806 procedures would violate their Seventh Amendment jury trial right and their due process rights.
Any Seventh Amendment argument is premature. Any hypothetical interference with a jury trial would arise only if a series of contingencies occurred on remand. First, given our various rulings precluding certain of Plaintiffs’ claims and the narrow availability of Bivens remedies under current law, there are likely to be few, if any, remaining Bivens claims against the Agent Defendants. See infra Part I; supra Part III.B; supra Part IV.B. Second, as to any remaining claims against the Agent Defendants, the district court might determine that there was no unlawful surveillance after reviewing the evidence under the in camera, ex parte procedures, or the Agent Defendants may prevail on summary judgment. Moreover, it is possible that the district court’s determination of whether the surveil-

lance was lawful will be a strictly legal decision—analogous to summary judgment— made on the record supplied by the government. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 336, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979) (noting that procedural devices like summary judgment are not ‘‘inconsistent’’ with the Seventh Amendment).
Should the various contingencies occur and leave liability issues to be determined, the Agent Defendants are free at that time to raise their Seventh Amendment arguments on remand. But, as the Seventh Amendment issue was not decided by the district court, may never arise, and, if it does, may depend on the merits on exactly how it arises, we decline to address the hypothetical constitutional question now.
With respect to the Agent Defendants’ due process arguments, we and other courts have upheld the constitutionality of FISA’s in camera and ex parte procedures with regard to criminal defendants. See United States v. Abu-

FAZAGA v. F.B.I.
Cite as 965 F.3d 1015 (9th Cir. 2020)

1053

E. Aggrieved Persons
We now consider more specifically whether FISA’s § 1806(f) procedures may be used in this case. Because the procedures apply when evidence will be introduced ‘‘against an aggrieved person,’’ 50 U.S.C. § 1806(c), and when ‘‘any motion or request is made by an aggrieved person,’’ id. § 1806(f), Plaintiffs must satisfy the definition of an ‘‘aggrieved person,’’ see id. § 1801(k).
[36] We addressed the ‘‘aggrieved person’’ requirement in part in the discussion of Plaintiffs’ § 1810 claim against the Agent Defendants. As we there explained, because Fazaga had a reasonable expectation of privacy in his office, and AbdelRahim had a reasonable expectation of privacy in his home, car, and phone, Plaintiffs are properly considered aggrieved persons as to those categories of surveillance. See supra Part I.C. And although we noted that the Agent Defendants are entitled to qualified immunity on Plaintiffs’ FISA § 1810 claim with respect to the recording of conversation in the mosque prayer halls, Plaintiffs had a reasonable expectation of privacy in those conversations and thus are still properly considered aggrieved persons as to that category of surveillance as well. See supra Part I.B.
Again, because Plaintiffs are properly considered ‘‘aggrieved’’ for purposes of FISA, two of the situations referenced in § 1806(f) are directly applicable here. The Government intends to use ‘‘information obtained or derived from an electronic sur-

veillance’’ against Plaintiffs, who are ‘‘aggrieved person[s].’’ 50 U.S.C. § 1806(c). And Plaintiffs are ‘‘aggrieved person[s]’’ who have attempted ‘‘to discover or obtain applications or orders or other materials relating to electronic surveillance.’’ Id. § 1806(f).
* * * *
We next turn to considering whether the claims other than the FISA § 1810 claim must be dismissed for reasons independent of the state secrets privilege, limiting ourselves to the arguments for dismissal raised in Defendants’ motions to dismiss.
III. Search Claims
In this part, we discuss (1) the Fourth Amendment injunctive relief claim against the official-capacity defendants; and (2) the Fourth Amendment Bivens claim against the Agent Defendants.
A. Fourth Amendment Injunctive Relief Claim Against the OfficialCapacity Defendants
The Government’s primary argument for dismissal of the constitutional claims brought against the official-capacity defendants, including the Fourth Amendment claim, is that the injunctive relief sought— the expungement of all records unconstitutionally obtained and maintained—is unavailable under the Constitution. Not so.
[37, 38] We have repeatedly and consistently recognized that federal courts can order expungement of records, criminal and otherwise, to vindicate constitutional rights.32 The Privacy Act, 5 U.S.C. § 552a,

Jihaad, 630 F.3d 102, 117–29 (2d Cir. 2010); United States v. Damrah, 412 F.3d 618, 625 (6th Cir. 2005); United States v. Ott, 827 F.2d 473, 476–77, 477 n.5 (9th Cir. 1987); United States v. Belfield, 692 F.2d 141, 148–49 (D.C. Cir. 1982); United States v. Nicholson, 955 F. Supp. 588, 590–92, 590 n.3 (E.D. Va. 1997) (collecting cases). Individual defendants in a civil suit are not entitled to more stringent protections than criminal defendants.

32. See, e.g., United States v. Sumner, 226 F.3d 1005, 1012 (9th Cir. 2000) (‘‘A district court has the power to expunge a criminal record under TTT the Constitution itself.’’); Burnsworth v. Gunderson, 179 F.3d 771, 775 (9th Cir. 1999) (holding that expungement of an escape conviction from prison records was an appropriate remedy for a due process violation); Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1275 (9th Cir. 1998) (explaining that expungement of unconstitu-

1054

965 FEDERAL REPORTER, 3d SERIES

which (1) establishes a set of practices governing the collection, maintenance, use, and dissemination of information about individuals maintained in records systems by federal agencies, and (2) creates federal claims for relief for violations of the Act’s substantive provisions, does not displace the availability of expungement relief under the Constitution.33 Previous cases involving claims brought under both the Privacy Act and the Constitution did not treat the Privacy Act as displacing a constitutional claim, but instead analyzed the claims separately.34 And the circuits that have directly considered whether the Pri-

vacy Act displaces parallel constitutional remedies have all concluded that a plaintiff may pursue a remedy under both the Constitution and the Privacy Act.35
In addition to its Privacy Act displacement theory, the Government contends that even if expungement relief is otherwise available under the Constitution, it is not available here, as Plaintiffs ‘‘advance no plausible claim of an ongoing constitutional violation.’’ Again, we disagree.
[39] This court has been clear that a determination that records were obtained and retained in violation of the Constitution supports a claim for expungement re-

tionally obtained medical records ‘‘would be an appropriate remedy for the alleged violation’’); United States v. Smith, 940 F.2d 395, 396 (9th Cir. 1991) (per curiam) (explaining that ‘‘recognized circumstances supporting expunction’’ include an unlawful or invalid arrest or conviction and government misconduct); Fendler v. U.S. Parole Comm’n, 774 F.2d 975, 979 (9th Cir. 1985) (‘‘Federal courts have the equitable power ‘to order the expungement of Government records where necessary to vindicate rights secured by the Constitution or by statute.’ ’’ (quoting Chastain v. Kelley, 510 F.2d 1232, 1235 (D.C. Cir. 1975))); Maurer v. Pitchess, 691 F.2d 434, 437 (9th Cir. 1982) (‘‘It is well settled that the federal courts have inherent equitable power to order ‘the expungement of local arrest records as an appropriate remedy in the wake of police action in violation of constitutional rights.’ ’’ (quoting Sullivan v. Murphy, 478 F.2d 938, 968 (D.C. Cir. 1973))); Shipp v. Todd, 568 F.2d 133, 134 (9th Cir. 1978) (‘‘It is established that the federal courts have inherent power to expunge criminal records when necessary to preserve basic legal rights.’’ (quoting United States v. McMains, 540 F.2d 387, 389 (8th Cir. 1976))).
33. The cases cited by the Government to the contrary are inapposite. See City of Milwaukee, 451 U.S. at 314–16, 101 S.Ct. 1784 (addressing the congressional displacement of federal common law through legislation, not the elimination of injunctive remedies available under the Constitution); Bush v. Lucas, 462 U.S. 367, 386–88, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983) (discussing preclusion of

a Bivens claim for damages where Congress had already designed a comprehensive remedial scheme, not whether a statute can displace a recognized constitutional claim for injunctive relief); Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 936–37 (D.C. Cir. 2003) (discussing the displacement of a common law right of access to public records by the Freedom of Information Act in a case not involving the Privacy Act or a claim for injunctive relief from an alleged ongoing constitutional violation).
34. See Hewitt v. Grabicki, 794 F.2d 1373, 1377, 1380 (9th Cir. 1986) (addressing separately a claim for damages under the Privacy Act and a procedural due process claim); Fendler, 774 F.2d at 979 (considering a prisoner’s Privacy Act claims and then, separately, his claim for expungement relief under the Constitution).
35. See Abdelfattah v. U.S. Dep’t of Homeland Sec., 787 F.3d 524, 534 (D.C. Cir. 2015) (‘‘We have repeatedly recognized a plaintiff may request expungement of agency records for both violations of the Privacy Act and the Constitution.’’); Clarkson v. IRS, 678 F.2d 1368, 1376 n.13 (11th Cir. 1982) (‘‘[W]e of course do not intend to suggest that the enactment of the Privacy Act in any way precludes a plaintiff from asserting a constitutional claim for violation of his privacy or First Amendment rights. Indeed, several courts have recognized that a plaintiff is free to assert both Privacy Act and constitutional claims.’’).

FAZAGA v. F.B.I.
Cite as 965 F.3d 1015 (9th Cir. 2020)

1055

lief of existing records so obtained. As Norman-Bloodsaw explained:
Even if the continued storage, against plaintiffs’ wishes, of intimate medical information that was allegedly taken from them by unconstitutional means does not itself constitute a violation of law, it is clearly an ongoing ‘‘effect’’ of the allegedly unconstitutional and discriminatory testing, and expungement of the test results would be an appropriate remedy for the alleged violationTTTT At the very least, the retention of undisputedly intimate medical information obtained in an unconstitutional and discriminatory manner would constitute a continuing ‘‘irreparable injury’’ for purposes of equitable relief. 135 F.3d at 1275; see also Wilson v. Webster, 467 F.2d 1282, 1283–84 (9th Cir. 1972) (holding that plaintiffs had a right to show that records of unlawful arrests ‘‘should be expunged, for their continued existence may seriously and unjustifiably serve to impair fundamental rights of the persons to whom they relate’’).
In short, expungement relief is available under the Constitution to remedy the alleged constitutional violations.36 Because the Government raises no other argument for dismissal of the Fourth Amendment injunctive relief claim, it should not have been dismissed.
B. Fourth Amendment Bivens Claim Against the Agent Defendants
Alleging that the Agent Defendants violated the Fourth Amendment, Plaintiffs seek monetary damages directly under the Constitution under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In Bivens, the Supreme Court ‘‘recognized for the first time

an implied private action for damages against federal officers alleged to have violated a citizen’s constitutional rights.’’ Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001). ‘‘The purpose of Bivens is to deter individual federal officers from committing constitutional violations.’’ Id. at 70, 122 S.Ct. 515.
Bivens itself concerned a Fourth Amendment violation by federal officers. As we have recognized, a Fourth Amendment damages claim premised on unauthorized electronic surveillance by FBI agents and their surrogates ‘‘fall[s] directly within the coverage of Bivens.’’ Gibson v. United States, 781 F.2d 1334, 1341 (9th Cir. 1986); see also Mitchell v. Forsyth, 472 U.S. 511, 513, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (considering, under Bivens, an alleged ‘‘warrantless wiretap’’ conducted in violation of the Fourth Amendment). Recent cases, however, have severely restricted the availability of Bivens actions for new claims and contexts. See Ziglar v. Abbasi, ––– U.S. ––––, 137 S.Ct. 1843, 1856–57, 198 L.Ed.2d 290 (2017).37
Here, the substance of Plaintiffs’ Fourth Amendment Bivens claim is identical to the allegations raised in their FISA § 1810 claim. Under our rulings regarding the reach of the § 1806(f) procedures, almost all of the search-and-seizure allegations will be subject to those procedures. Thus, regardless of whether a Bivens remedy is available, Plaintiffs’ underlying claim—that the Agent Defendants engaged in unlawful electronic surveillance violative of the Fourth Amendment—would proceed in the same way.
Moreover, if the Fourth Amendment Bivens claim proceeds, the Agent Defendants

36. We do not at this stage, of course, address whether Plaintiffs are actually entitled to such a remedy.

37. The parties have not briefed before us the impact of Abbasi on the Bivens claims.

1056

965 FEDERAL REPORTER, 3d SERIES

are entitled to qualified immunity on Plaintiffs’ Fourth Amendment Bivens claim to the same extent they are entitled to qualified immunity on Plaintiffs’ FISA claim. In both instances, the substantive law derives from the Fourth Amendment, and in both instances, government officials in their individual capacity are subject to liability for damages only if they violated a clearly established right to freedom from governmental intrusion where an individual has a reasonable expectation of privacy. See supra Part I.B. Under our earlier rulings, the FISA search-and-seizure allegations may proceed against only two of the Agent Defendants, and only with respect to a narrow aspect of the alleged surveillance.
In light of the overlap between the Bivens claim and the narrow range of the remaining FISA claim against the Agent Defendants that can proceed, it is far from clear that Plaintiffs will continue to press this claim. We therefore decline to address whether Plaintiffs’ Bivens claim remains available after the Supreme Court’s decision in Abbasi. On remand, the district court may determine—if necessary— whether a Bivens remedy is appropriate for any Fourth Amendment claim against the Agent Defendants.
IV. Religion Claims
The other set of Plaintiffs’ claims arise from their allegation that they were targeted for surveillance solely because of their religion.38 In this part, we discuss Plaintiffs’ (1) First and Fifth Amendment injunctive relief claims against the officialcapacity defendants; (2) First and Fifth Amendment Bivens claims against the Agent Defendants; (3) § 1985(3) claims for violations of the Free Exercise Clause, Establishment Clause, and equal protection guarantee; (4) RFRA claim; (5) Privacy Act claim; and (6) FTCA claims. Our

focus throughout is whether there are grounds for dismissal independent of the Government’s invocation of the state secrets privilege.
A. First Amendment and Fifth Amendment Injunctive Relief Claims Against the Official-Capacity Defendants
Plaintiffs maintain that it violates the First Amendment’s Religion Clauses and the equal protection component of the Fifth Amendment for the Government to target them for surveillance because of their adherence to and practice of Islam. The Government does not challenge the First and Fifth Amendment claims substantively. It argues only that injunctive relief is unavailable and that litigating the claims is not possible without risking the disclosure of state secrets. We have already concluded that injunctive relief, including expungement, is available under the Constitution where there is a substantively viable challenge to government action, see supra Part III.A, and that dismissal because of the state secrets concern was improper because of the availability of the § 1806(f) procedures, see supra Part II. Accordingly, considering only the arguments put forward by the Government, we conclude that the First and Fifth Amendment claims against the official-capacity defendants may go forward.
B. First Amendment and Fifth Amendment Bivens Claims Against the Agent Defendants
Plaintiffs seek monetary damages directly under the First Amendment’s Establishment and Free Exercise Clauses and the equal protection component of the Fifth Amendment’s Due Process Clause,

38. The operative complaint alleges as a factual matter that Plaintiffs were surveilled solely

because of their religion. We limit our legal discussion to the facts there alleged.

FAZAGA v. F.B.I.
Cite as 965 F.3d 1015 (9th Cir. 2020)

1057

relying on Bivens v. Six Unknown Named Agents.
[40] We will not recognize a Bivens claim where there is ‘‘ ‘any alternative, existing process for protecting’ the plaintiff’s interests.’’ W. Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d 1116, 1120 (9th Cir. 2009) (quoting Wilkie v. Robbins, 551 U.S. 537, 550, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007)). The existence of such an alternative remedy raises the inference that Congress ‘‘ ‘expected the Judiciary to stay its Bivens hand’ and ‘refrain from providing a new and freestanding remedy in damages.’ ’’ Id. (quoting Wilkie, 551 U.S. at 550, 554, 127 S.Ct. 2588); see also Abbasi, 137 S. Ct. at 1863; Schweiker v. Chilicky, 487 U.S. 412, 423, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988). Accordingly, we ‘‘refrain[ ] from creating a judicially implied remedy even when the available statutory remedies ‘do not provide complete relief’ for a plaintiff that has suffered a constitutional violation.’’ W. Radio Servs., 578 F.3d at 1120 (quoting Malesko, 534 U.S. at 69, 122 S.Ct. 515). As long as ‘‘an avenue for some redress’’ exists, ‘‘bedrock principles of separation of powers forclose[s] judicial imposition of a new substantive liability.’ ’’ Id. (alteration in original) (quoting Malesko, 534 U.S. at 69, 122 S.Ct. 515).
Here, we conclude that the Privacy Act, 5 U.S.C. § 552a, and the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq., taken together, provide an alternative remedial scheme for some, but not all, of Plaintiffs’ First and Fifth Amendment Bivens claims. As to the remaining Bivens claims, we remand to the district court to decide whether a Bivens remedy is available in light of the Supreme Court’s decision in Abbasi.

[41] As to the collection and maintenance of records, Plaintiffs could have, and indeed did, challenge the FBI’s surveillance of them under the Privacy Act’s remedial scheme. Again, the Privacy Act, 5 U.S.C. § 552a, creates a set of rules governing how such records should be kept by federal agencies. See supra Part III.A. Under § 552a(e)(7), an ‘‘agency that maintains a system of records shall maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity.’’39 When an agency fails to comply with § 552a(e)(7), an individual may bring a civil action against the agency for damages. Id. § 552a(g)(1)(D), (g)(4). Thus, § 552a(e)(7) limits the government’s ability to collect, maintain, use, or disseminate information on an individual’s religious activity protected by the First Amendment’s Religion Clauses.
We have not addressed the availability of a Bivens action where the Privacy Act may be applicable. But two other circuits have, and both held that the Privacy Act supplants Bivens claims for First and Fifth Amendment violations. See Wilson v. Libby, 535 F.3d 697, 707–08 (D.C. Cir. 2008) (holding, in response to claims alleging harm from the improper disclosure of information subject to the Privacy Act’s protections, that the Privacy Act is a comprehensive remedial scheme that precludes an additional Bivens remedy); Downie v. City of Middleburg Heights, 301 F.3d 688, 696 & n.7 (6th Cir. 2002) (holding that the Privacy Act displaces Bivens for claims involving the creation, maintenance, and

39. The term ‘‘maintain’’ is defined to mean ‘‘maintain, collect, use, or disseminate.’’ 5

U.S.C. § 552a(a)(3).

1058

965 FEDERAL REPORTER, 3d SERIES

dissemination of false records by federal agency employees). We agree with the analyses in Wilson and Downie.
Although the Privacy Act provides a remedy only against the FBI, not the individual federal officers, the lack of relief against some potential defendants does not disqualify the Privacy Act as an alternative remedial scheme. Again, a Bivens remedy may be foreclosed ‘‘even when the available statutory remedies ‘do not provide complete relief’ for a plaintiff,’’ as long as ‘‘the plaintiff ha[s] an avenue for some redress.’’ W. Radio Servs., 578 F.3d at 1120 (alteration in original) (emphasis added) (quoting Malesko, 534 U.S. at 69, 122 S.Ct. 515). Thus, to the extent that Plaintiffs’ Bivens claims involve improper collection and retention of agency records, the Privacy Act precludes such Bivens claims.
[42] As to religious discrimination more generally, we conclude that RFRA precludes some, but not all, of Plaintiffs’ Bivens claims. RFRA provides that absent a ‘‘compelling governmental interest’’ and narrow tailoring, 42 U.S.C. § 2000bb-1(b), the ‘‘Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.’’ Id. § 2000bb-1(a). The statute was enacted ‘‘to provide a claim or defense to persons whose religious exercise is substantially burdened by government.’’ Id. § 2000bb(b)(2). It therefore provided that ‘‘[a] person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.’’ Id. § 2000bb-1(c). RFRA thus provides a means for Plaintiffs to seek relief for the alleged burden of the surveillance itself on their exercise of their religion.
RFRA does not, however, provide an alternative remedial scheme for all of

Plaintiffs’ discrimination-based Bivens claims. RFRA was enacted in response to Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), which, in Congress’s view, ‘‘virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion,’’ 42 U.S.C. § 2000bb(a)(4). Accordingly, ‘‘to restore the compelling interest test TTT and to guarantee its application in all cases where free exercise of religion is substantially burdened,’’ id. § 2000bb(b)(1), RFRA directs its focus on ‘‘rule[s] of general applicability’’ that ‘‘substantially burden a person’s exercise of religion,’’ id. § 2000bb-1(a).
Here, many of Plaintiffs’ allegations relate not to neutral and generally applicable government action, but to conduct motivated by intentional discrimination against Plaintiffs because of their Muslim faith. Regardless of the magnitude of the burden imposed, ‘‘if the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral’’ and ‘‘is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest.’’ Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) (emphasis added). It is the Free Exercise Clause of the First Amendment—not RFRA—that imposes this requirement.
[43] Moreover, by its terms, RFRA applies only to the ‘‘free exercise of religion,’’ 42 U.S.C. § 2000bb(a)(1); indeed, it expressly disclaims any effect on ‘‘that portion of the First Amendment prohibiting laws respecting the establishment of religion,’’ id. § 2000bb-4. But intentional religious discrimination is ‘‘subject to heightened scrutiny whether [it] arise[s] under the Free Exercise Clause, the Establishment Clause, or the Equal Protection

FAZAGA v. F.B.I.
Cite as 965 F.3d 1015 (9th Cir. 2020)

1059

Clause.’’ Colo. Christian Univ. v. Weaver, 534 F.3d 1245, 1266 (10th Cir. 2008) (citations omitted). Here, Plaintiffs have raised religion claims based on all three constitutional provisions. Because RFRA does not provide an alternative remedial scheme for protecting these interests, we conclude that RFRA does not preclude Plaintiffs’ religion-based Bivens claims.
We conclude that the Privacy Act and RFRA, taken together, function as an alternative remedial scheme for protecting some, but not all, of the interests Plaintiffs seek to vindicate via their First and Fifth Amendment Bivens claims. The district court never addressed whether a Bivens remedy is available for any of the religion claims because it dismissed the claims in their entirety based on the state secrets privilege. In addition, Abbasi has now clarified the standard for determining when a Bivens remedy is available for a particular alleged constitutional violation. And, as we have explained, the scope of the religion claims to which a Bivens remedy might apply is considerably narrower than those alleged, given the partial displacement by the Privacy Act and RFRA. If asked, the district court should determine on remand, applying Abbasi, whether a Bivens remedy is available to the degree the damages remedy is not displaced by the Privacy Act and RFRA.
C. 42 U.S.C. § 1985(3) Claims Against the Agent Defendants
Plaintiffs allege that the Agent Defendants conspired to deprive Plaintiffs of their rights under the First Amendment’s Establishment and Free Exercise Clauses and the due process guarantee of the Fifth Amendment, in violation of 42 U.S.C. § 1985(3).

[44] To state a violation of § 1985(3), Plaintiffs must ‘‘allege and prove four elements’’:
(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.
United Bhd. of Carpenters & Joiners of Am., Local 610 v. Scott, 463 U.S. 825, 828– 29, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983). The Defendants attack these claims on various grounds, but we reach only one— whether § 1985(3) conspiracies among employees of the same government entity are barred by the intracorporate conspiracy doctrine.
[45] Abbasi makes clear that intracorporate liability was not clearly established at the time of the events in this case and that the Agent Defendants are therefore entitled to qualified immunity from liability under § 1985(3). See 137 S. Ct. at 1866.
In Abbasi, men of Arab and South Asian descent detained in the aftermath of September 11 sued two wardens of the federal detention center in Brooklyn in which they were held, along with several high-level Executive Branch officials who were alleged to have authorized their detention. Id. at 1853. They alleged, among other claims, a conspiracy among the defendants to deprive them of the equal protection of the laws under § 1985(3).40 Id. at 1853–54. Abbasi held that, even assuming these allegations to be ‘‘true and well pleaded,’’ the defendants were entitled to qualified immunity on the § 1985(3) claim. Id. at 1866– 67. It was not ‘‘clearly established’’ at the

40. Specifically, Plaintiffs alleged that these officials ‘‘conspired with one another to hold respondents in harsh conditions because of

their actual or apparent race, religion, or national origin.’’ Abbasi, 137 S. Ct. at 1854.

1060

965 FEDERAL REPORTER, 3d SERIES

time, the Court held, that the intracorporate conspiracy doctrine did not bar § 1985(3) liability for employees of the same government department who conspired among themselves. Id. at 1867–68. ‘‘[T]he fact that the courts are divided as to whether or not a § 1985(3) conspiracy can arise from official discussions between or among agents of the same entity demonstrates that the law on the point is not well established.’’ Id. at 1868. ‘‘[R]easonable officials in petitioners’ positions would not have known, and could not have predicted, that § 1985(3) prohibited their joint consultations.’’ Id. at 1867. The Court declined, however, to resolve the issue on the merits. Id.
Abbasi controls. Although the underlying facts here differ from those in Abbasi, the dispositive issue here, as in Abbasi, is whether the Agent Defendants could reasonably have known that agreements entered into or agreed-upon policies devised with other employees of the FBI could subject them to conspiracy liability under § 1985(3). At the time Plaintiffs allege they were surveilled, neither this court nor the Supreme Court had held that an intracorporate agreement could subject federal officials to liability under § 1985(3), and the

circuits that had decided the issue were split.41 There was therefore, as in Abbasi, no clearly established law on the question. As the Agent Defendants are entitled to qualified immunity on the § 1985(3) allegations in the complaint, we affirm their dismissal on that ground.
D. Religious Freedom Restoration Act Claim Against the Agent Defendants and Government Defendants
Plaintiffs allege that the Defendants violated the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb, by substantially burdening Plaintiffs’ exercise of religion, and did so neither in furtherance of a compelling governmental interest nor by adopting the least restrictive means of furthering any such interest. The Government Defendants offer no argument for dismissal of the RFRA claim other than the state secrets privilege. The Agent Defendants, however, contend that they are entitled to qualified immunity on the RFRA claim because Plaintiffs failed to plead a substantial burden on their religion, and if they did so plead, no clearly established law supported that conclusion at the relevant time.42

41. Two circuits have held that the intracorporate conspiracy doctrine does not extend to civil rights cases. See Brever v. Rockwell Int’l Corp., 40 F.3d 1119, 1127 (10th Cir. 1994); Novotny v. Great Am. Fed. Sav. & Loan Ass’n, 584 F.2d 1235, 1257–58 (3d Cir. 1978) (en banc), vacated on other grounds, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979); see also Stathos v. Bowden, 728 F.2d 15, 20–21 (1st Cir. 1984) (expressing ‘‘doubt’’ that the intracorporate conspiracy doctrine extends to conspiracy under § 1985(3)). The majority of the circuits have reached a contrary result. See Hartline v. Gallo, 546 F.3d 95, 99 n.3 (2d Cir. 2008); Meyers v. Starke, 420 F.3d 738, 742 (8th Cir. 2005); Dickerson v. Alachua Cty. Comm’n, 200 F.3d 761, 767–68 (11th Cir. 2000); Benningfield v. City of Houston, 157 F.3d 369, 378 (5th Cir. 1998); Wright v. Ill. Dep’t of Children & Family Servs., 40 F.3d

1492, 1508 (7th Cir. 1994); Hull v. Cuyahoga Valley Joint Vocational Sch. Dist. Bd. of Educ., 926 F.2d 505, 509–10 (6th Cir. 1991); Buschi v. Kirven, 775 F.2d 1240, 1252–53 (4th Cir. 1985).
42. The parties do not dispute that qualified immunity is an available defense to a RFRA claim. We therefore assume it is. See Padilla v. Yoo, 678 F.3d 748, 768 (9th Cir. 2012); Lebron v. Rumsfeld, 670 F.3d 540, 560 (4th Cir. 2012).
Tidwell and Walls also contend that Plaintiffs’ RFRA claim was properly dismissed because RFRA does not permit damages suits against individual-capacity defendants. Because we affirm dismissal on another ground, we do not reach that issue. We note, however, that at least two other circuits have held that damages are available for RFRA suits against

FAZAGA v. F.B.I.
Cite as 965 F.3d 1015 (9th Cir. 2020)

1061

[46] To establish a prima facie claim under RFRA, a plaintiff must ‘‘present evidence sufficient to allow a trier of fact rationally to find the existence of two elements.’’ Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1068 (9th Cir. 2008) (en banc). ‘‘First, the activities the plaintiff claims are burdened by the government action must be an ‘exercise of religion.’ ’’ Id. (quoting 42 U.S.C. § 2000bb-1(a)). ‘‘Second, the government action must ‘substantially burden’ the plaintiff’s exercise of religion.’’ Id. Once a plaintiff has established those elements, ‘‘the burden of persuasion shifts to the government to prove that the challenged government action is in furtherance of a ‘compelling governmental interest’ and is implemented by ‘the least restrictive means.’ ’’ Id. (quoting 42 U.S.C. § 2000bb-1(b)).
[47, 48] ‘‘Under RFRA, a ‘substantial burden’ is imposed only when individuals are forced to choose between following the tenets of their religion and receiving a governmental benefit TTT or coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctionsTTTT’’ Id. at 1069–70; see also Oklevueha Native Am. Church of Haw., Inc. v. Lynch, 828 F.3d 1012, 1016 (9th Cir. 2016). An effect on an individual’s ‘‘subjective, emotional religious experience’’ does not constitute a substantial burden, Navajo Nation, 535 F.3d at 1070, nor does ‘‘a government action that decreases the spirituality, the fervor, or the satisfaction with which a believer practices his religion,’’ id. at 1063.

Plaintiffs do allege that they altered their religious practices as a result of the FBI’s surveillance: Malik trimmed his beard, stopped regularly wearing a skull cap, decreased his attendance at the mosque, and became less welcoming to newcomers than he believes his religion requires. AbdelRahim ‘‘significantly decreased his attendance to mosque,’’ limited his donations to mosque institutions, and became less welcoming to newcomers than he believes his religion requires. Fazaga, who provided counseling at the mosque as an imam and an intern therapist, stopped counseling congregants at the mosque because he feared the conversations would be monitored and thus not confidential.
[49] But it was not clearly established in 2006 or 2007 that covert surveillance conducted on the basis of religion would meet the RFRA standards for constituting a substantial religious burden on individual congregants. There simply was no case law in 2006 or 2007 that would have put the Agent Defendants on notice that covert surveillance on the basis of religion could violate RFRA. And at least two cases from our circuit could be read to point in the opposite direction, though they were brought under the First Amendment’s Religion Clauses rather than under RFRA. See Vernon v. City of Los Angeles, 27 F.3d 1385, 1394 (9th Cir. 1994); Presbyterian Church, 870 F.2d at 527.43
Presbyterian Church concerned an undercover investigation by INS of the sanc-

individual-capacity defendants. See Tanvir v. Tanzin, 894 F.3d 449, 467 (2d Cir. 2018); Mack v. Warden Loretto FCI, 839 F.3d 286, 302 (3d Cir. 2016).
43. Presbyterian Church predates Employment Division v. Smith, which declined to use the compelling interest test from Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). Smith, 494 U.S. at 883–85, 110 S.Ct. 1595. The other case, Vernon, postdates

RFRA, which in 1993 restored Sherbert’s compelling interest test. See 27 F.3d at 1393 n.1; see also 42 U.S.C. § 2000bb(b). Although the compelling interest balancing test was in flux during this period, the notion that a burden on religious practice was required to state a claim was not. RFRA continued the same substantial burden standard as was required by the constitutional cases. See Vernon, 27 F.3d at 1393.

1062

965 FEDERAL REPORTER, 3d SERIES

tuary movement. 870 F.2d at 520. Over nearly a year, several INS agents infiltrated four churches in Arizona, attending and secretly recording church services. Id. The covert surveillance was later publicly disclosed in the course of criminal proceedings against individuals involved with the sanctuary movement. Id. The four churches brought suit, alleging a violation of their right to free exercise of religion. Id. We held that the individual INS agents named as defendants were entitled to qualified immunity because there was ‘‘no support in the preexisting case law’’ to suggest that ‘‘it must have been apparent to INS officials that undercover electronic surveillance of church services without a warrant and without probable cause violated the churches’ clearly established rights under the First TTT Amendment[ ].’’ Id. at 527.
In Vernon, the Los Angeles Police Department (‘‘LAPD’’) investigated Vernon, the Assistant Chief of Police of the LAPD, in response to allegations that Vernon’s religious beliefs had interfered with his ability or willingness to fairly perform his official duties. 27 F.3d at 1389. Vernon filed a § 1983 action, maintaining that the preinvestigation activities and the investigation itself violated the Free Exercise Clause. Id. at 1390. In his complaint, Vernon alleged that the investigation ‘‘chilled [him] in the exercise of his religious beliefs, fearing that he can no longer worship as he chooses, consult with his ministers and the elders of his church, participate in Christian fellowship and give public testimony to his faith without severe conse-

quences.’’ Id. at 1394. We held that Vernon failed to demonstrate a substantial burden on his religious observance and so affirmed the district court’s dismissal of his free exercise claim. Id. at 1395. We noted that Vernon ‘‘failed to show any concrete and demonstrable injury.’’ Id. ‘‘Vernon complain[ed] that the existence of a government investigation has discouraged him from pursuing his personal religious beliefs and practices—in other words, mere subjective chilling effects with neither ‘a claim of specific present objective harm [n]or a threat of specific future harm.’ ’’ Id. (quoting Laird v. Tatum, 408 U.S. 1, 14, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972)).
Vernon and Presbyterian Church were decided before the surveillance Plaintiffs allege substantially burdened their exercise of religion. Both cases cast doubt upon whether surveillance such as that alleged here constitutes a substantial burden upon religious practice. There is no pertinent case law indicating otherwise. It was therefore not clearly established in 2006 or 2007 that Defendants’ actions violated Plaintiffs’ freedom of religion, protected by RFRA.44
As to the Agent Defendants, therefore, we affirm the dismissal of the RFRA claim. But because the Government Defendants are not subject to the same qualified immunity analysis and made no arguments in support of dismissing the RFRA claim other than the state secrets privilege, we hold that the complaint substantively states a RFRA claim against the Government Defendants.45

44. These cases may not, however, entitle the Agent Defendants to qualified immunity as to claims involving intentional discrimination based on Plaintiffs’ religion. As we noted, see supra Part IV.B, we are not deciding whether there is an available Bivens action for those claims. As we decline to anticipate whether Plaintiffs will pursue their Bivens claims on the religious discrimination issues and, if so,

whether the claims will be allowed to go forward, we leave any surviving qualified immunity issue for the district court to decide in the first instance.
45. We do not address any other defenses the Government Defendants may raise before the district court in response to Plaintiffs’ RFRA claim.

FAZAGA v. F.B.I.
Cite as 965 F.3d 1015 (9th Cir. 2020)

1063

E. Privacy Act Claim Against the FBI
[50] Plaintiffs allege that the FBI violated the Privacy Act, 5 U.S.C. § 552a(e)(7),46 by collecting and maintaining records describing how Plaintiffs exercised their First Amendment rights. As a remedy, Plaintiffs seek only injunctive relief ordering the destruction or return of unlawfully obtained information. Cell Associates, Inc. v. National Institutes of Health, 579 F.2d 1155 (9th Cir. 1978), which interpreted the scope of Privacy Act remedies, precludes such injunctive relief.
The ‘‘Civil remedies’’ section of the Privacy Act, 5 U.S.C. § 552a(g), lists four types of agency misconduct and the remedies applicable to each. The statute expressly provides that injunctive relief is available when an agency improperly denies a request to amend or disclose an individual’s record, see 5 U.S.C. § 552a(g)(1)(A), (2)(A), (1)(B), (3)(A), but provides only for damages when the agency ‘‘fails to maintain any record’’ with the ‘‘accuracy, relevance, timeliness, and completeness’’ required for fairness, id. § 552a(g)(1)(C), or if the agency ‘‘fails to comply with any other provision’’ of the Privacy Act, id. § 552a(g)(1)(D). See id. § 552a(g)(4). Cell Associates concluded that this distinction was purposeful—that is, that Congress intended to limit the availability of injunctive relief to the categories of agency misconduct for which injunctive relief was specified as a remedy:

The addition of a right to injunctive relief for one type of violation, coupled with the failure to provide injunctive relief for another type of violation, suggests that Congress knew what it was about and intended the remedies specified in the Act to be exclusive. While the right to damages might seem an inadequate safeguard against unwarranted disclosures of agency records, we think it plain that Congress limited injunctive relief to the situations described in 5 U.S.C. § 552a(g)(1)(A) and (2) and (1)(B) and (3).
579 F.2d at 1161.
A violation of § 552a(e)(7) falls within the catch-all remedy provision, applicable if the agency ‘‘fails to comply with any other provision’’ of the Privacy Act. 5 U.S.C. § 552a(g)(1)(D). As the statute does not expressly provide for injunctive relief for a violation of this catch-all provision, Cell Associates precludes injunctive relief for a violation of § 552a(e)(7).
[51] Plaintiffs attempt to avoid the precedential impact of Cell Associates on the ground that it ‘‘nowhere mentions Section 552a(e)(7).’’ That is so, but the holding of Cell Associates nonetheless applies directly to this case. The Privacy Act specifies that injunctive relief is available for violations of some provisions of the Act, but not for a violation of § 552a(e)(7). Under Cell Associates, Plaintiffs cannot obtain injunctive relief except for violations as to which such relief is specifically permitted.47

46. The header to Plaintiffs’ Eighth Cause of Action reads broadly, ‘‘Violation of the Privacy Act, 5 U.S.C. § 552a(a)–(l).’’ As actually pleaded and briefed, however, the substance of Plaintiffs’ Privacy Act claim is limited to § 552a(e)(7). The complaint states that ‘‘Defendant FBI TTT collected and maintained records TTT in violation of 5 U.S.C. § 552a(e)(7).’’ And Plaintiffs’ reply brief states that they ‘‘seek expungement TTT under 5 U.S.C. § 552a(e)(7).’’

47. Plaintiffs also argue that MacPherson v. IRS, 803 F.2d 479 (9th Cir. 1986) is ‘‘binding Ninth Circuit authority TTT [that] makes clear that courts have authority to order expungement of records maintained in violation of its [§ 552a(e)(7)] requirements.’’ But MacPherson does not state whether the plaintiff there sought injunctive relief and so is unclear on this point.

1064

965 FEDERAL REPORTER, 3d SERIES

Plaintiffs’ complaint expressly provides that ‘‘[t]he FBI is sued for injunctive relief only.’’ Accordingly, because their sole requested remedy is unavailable, Plaintiffs fail to state a claim under the Privacy Act.
F. FTCA Claims
[52] The FTCA constitutes a waiver of sovereign immunity ‘‘under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.’’ 28 U.S.C. § 1346(b)(1). ‘‘State substantive law applies’’ in FTCA actions. Liebsack v. United States, 731 F.3d 850, 856 (9th Cir. 2013). If an individual federal employee is sued, the United States shall, given certain conditions are satisfied, ‘‘be substituted as the party defendant.’’ 28 U.S.C. § 2679(d)(1).
Plaintiffs allege that the United States is liable under the FTCA for invasion of privacy under California law, violation of the California constitutional right to privacy, violation of California Civil Code § 52.1, and intentional infliction of emotional distress. We first consider Defendants’ jurisdictional arguments, and then discuss their implications for the substantive FTCA claims.
1. FTCA Judgment Bar
The FTCA’s judgment bar provides that ‘‘[t]he judgment in an action under [the FTCA] shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim.’’ 28 U.S.C. § 2676. The judgment bar provision has no application here.
[53] The judgment bar provision precludes claims against individual defendants in two circumstances: (1) where a plaintiff brings an FTCA claim against the government and non-FTCA claims against individual defendants in the same action and

obtains a judgment against the government, see Kreines v. United States, 959 F.2d 834, 838 (9th Cir. 1992); and (2) where the plaintiff brings an FTCA claim against the government, judgment is entered in favor of either party, and the plaintiff then brings a subsequent nonFTCA action against individual defendants, see Gasho v. United States, 39 F.3d 1420, 1437–38 (9th Cir. 1994); Ting v. United States, 927 F.2d 1504, 1513 n.10 (9th Cir. 1991). The purposes of this judgment bar are ‘‘to prevent dual recoveries,’’ Kreines, 959 F.2d at 838, to ‘‘serve[ ] the interests of judicial economy,’’ and to ‘‘foster more efficient settlement of claims,’’ by ‘‘encourag[ing plaintiffs] to pursue their claims concurrently in the same action, instead of in separate actions,’’ Gasho, 39 F.3d at 1438.
[54] Neither of those two circumstances, nor their attendant risks, is present here. Plaintiffs brought their FTCA claim, necessarily, against the United States, and their non-FTCA claims against the Agent Defendants, in the same action. They have not obtained a judgment against the government. Kreines held that ‘‘an FTCA judgment in favor of the government did not bar the Bivens claim [against individual employees] when the judgments are ‘contemporaneous’ and part of the same action.’’ Gasho, 39 F.3d at 1437 (quoting Kreines, 959 F.2d at 838). By ‘‘contemporaneous,’’ Kreines did not require that judgments on the FTCA and other claims be entered simultaneously, but rather that they result from the same action.
The FTCA’s judgment bar does not operate to preclude Plaintiffs’ claims against the Agent Defendants.
2. FTCA Discretionary Function Exception
[55, 56] The discretionary function exception provides that the FTCA shall not

FAZAGA v. F.B.I.
Cite as 965 F.3d 1015 (9th Cir. 2020)

1065

apply to ‘‘[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, TTT or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.’’ 28 U.S.C. § 2680(a). ‘‘[T]he discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.’’ Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). ‘‘[G]overnmental conduct cannot be discretionary if it violates a legal mandate.’’ Galvin v. Hay, 374 F.3d 739, 758 (9th Cir. 2004) (quoting Nurse v. United States, 226 F.3d 996, 1002 (9th Cir. 2000)). Moreover, ‘‘the Constitution can limit the discretion of federal officials such that the FTCA’s discretionary function exception will not apply.’’ Id. (quoting Nurse, 226 F.3d at 1002 n.2).
We cannot determine the applicability of the discretionary function exception at this stage in the litigation. If, on remand, the district court determines that Defendants did not violate any federal constitutional or statutory directives, the discretionary function exception will bar Plaintiffs’ FTCA claims.48 But if the district court instead determines that Defendants did violate a nondiscretionary federal constitutional or statutory directive, the FTCA claims may be able to proceed to that degree.

Because applicability of the discretionary function will largely turn on the district court’s ultimate resolution of the merits of Plaintiffs’ various federal constitutional and statutory claims, discussing whether Plaintiffs substantively state claims as to the state laws underlying the FTCA claim would be premature. We therefore decline to do so at this juncture.
V. Procedures on Remand
On remand, the FISA and Fourth Amendment claims, to the extent we have held they are validly pleaded in the complaint and not subject to qualified immunity, should proceed as usual. See supra Part II.B. In light of our conclusion regarding the reach of FISA § 1806(f), the district court should, using § 1806(f)’s ex parte and in camera procedures, review any ‘‘materials relating to the surveillance as may be necessary,’’ 50 U.S.C. § 1806(f), including the evidence over which the Attorney General asserted the state secrets privilege, to determine whether the electronic surveillance was lawfully authorized and conducted. That determination will include, to the extent we have concluded that the complaint states a claim regarding each such provision, whether Defendants violated any of the constitutional and statutory provisions asserted by Plaintiffs in their complaint. As permitted by Congress, ‘‘[i]n making this determination, the court may disclose to [plaintiffs], under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.’’ Id.49

48. We note that the judgment bar, 28 U.S.C. § 2676, does not apply to FTCA claims dismissed under the discretionary function exception. See Simmons v. Himmelreich, ––– U.S. ––––, 136 S. Ct. 1843, 1847–48, 195 L.Ed.2d 106 (2016).
49. Our circuit has not addressed the applicable standard for reviewing the district court’s

decision not to disclose FISA materials. Other circuits, however, have adopted an abuse of discretion standard. See United States v. Ali, 799 F.3d 1008, 1022 (8th Cir. 2015); United States v. El-Mezain, 664 F.3d 467, 567 (5th Cir. 2011); United States v. Damrah, 412 F.3d 618, 624 (6th Cir. 2005); United States v. Badia, 827 F.2d 1458, 1464 (11th Cir. 1987);

1066

965 FEDERAL REPORTER, 3d SERIES

The Government suggests that Plaintiffs’ religion claims cannot be resolved using the § 1806(f) procedures because, as the district court found, ‘‘the central subject matter [of the case] is Operation Flex, a group of counterterrorism investigations that extend well beyond the purview of electronic surveillance.’’ Although the larger factual context of the case involves more than electronic surveillance, a careful review of the ‘‘Claims for Relief’’ section of the complaint convinces us that all of Plaintiffs’ legal causes of action relate to electronic surveillance, at least for the most part, and in nearly all instances entirely, and thus require a determination as to the lawfulness of the surveillance. Moreover, § 1806(f) provides that the district court may consider ‘‘other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted,’’ thereby providing for consideration of all parties’ factual submissions and legal contentions regarding the background of the surveillance. Id. (emphasis added).
We did explain in Part I, supra, that not all of the surveillance detailed in the complaint as the basis for Plaintiffs’ legal claims constitutes electronic surveillance as defined by FISA. See id. § 1801(k). Also, two of Plaintiffs’ causes of action can be read to encompass more conduct than just electronic surveillance. Plaintiffs’ RFRA claim, their Fifth Cause of Action, is not limited to electronic surveillance. Plaintiffs broadly allege that ‘‘[t]he actions of Defendants substantially burdened [their] exercise of religion.’’ The FTCA claim for intentional infliction of emotional

distress, the Eleventh Cause of Action, is also more broadly pleaded. It is far from clear, however, that as actually litigated, either claim will involve more than the electronic surveillance that is otherwise the focus of the lawsuit.50
At this stage, it appears that, once the district court uses § 1806(f)’s procedures to review the state secrets evidence in camera and ex parte to determine the lawfulness of that surveillance, it could rely on its assessment of the same evidence—taking care to avoid its public disclosure—to determine the lawfulness of the surveillance falling outside FISA’s purview, should Plaintiffs wish to proceed with their claims as applied to that set of activity. Once the sensitive information has been considered in camera and ex parte, the small risk of disclosure—a risk Congress thought too small to preclude careful ex parte, in camera consideration by a federal judge—has already been incurred. The scope of the state secrets privilege ‘‘is limited by its underlying purpose.’’ Halpern v. United States, 258 F.2d 36, 44 (2d Cir. 1958) (quoting Roviaro v. United States, 353 U.S. 53, 60, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957)). It would stretch the privilege beyond its purpose to require the district court to consider the state secrets evidence in camera and ex parte for one claim, but then, when considering another claim, ignore the evidence and dismiss the claim even though it involves the exact same set of parties, facts, and alleged legal violations.
Should our prediction of the overlap between the information to be reviewed under the FISA procedures to determine the

United States v. Belfield, 692 F.2d 141, 147 (D.C. Cir. 1982).
50. For example, whether the official-capacity defendants targeted Plaintiffs for surveillance in violation of the First Amendment will in all

likelihood be proven or defended against using the same set of evidence regardless of whether the court considers the claim in terms of electronic surveillance in the mosque prayer hall or conversations to which Monteilh was a party.

FAZAGA v. F.B.I.
Cite as 965 F.3d 1015 (9th Cir. 2020)

1067

validity of FISA-covered electronic surveillance and the information pertinent to other aspects of the religion claims prove inaccurate, or should the FISA-covered electronic surveillance drop out of consideration,51 the Government is free to interpose a specifically tailored, properly raised state secrets privilege defense. Should the Government do so, at that point the district court should consider anew whether ‘‘simply excluding or otherwise walling off the privileged information may suffice to protect the state secrets,’’ Jeppesen, 614 F.3d at 1082, or whether dismissal is required because ‘‘the privilege deprives the defendant[s] of information that would otherwise give the defendant[s] a valid defense to the claim[s],’’ id. at 1083 (quoting Kasza, 133 F.3d at 1166), or because the privileged and nonprivileged evidence are ‘‘inseparable’’ such that ‘‘litigating the case to a judgment on the merits would present an unacceptable risk of disclosing state secrets,’’ id.
Because Jeppesen did not define ‘‘valid defense,’’ we briefly address its meaning, so as to provide guidance to the district court on remand and to future courts in our circuit addressing the implications of the Government’s invocation of the state secrets privilege.
[57] The most useful discussion of the meaning of ‘‘valid defense’’ in the state secrets context is in the D.C. Circuit’s decision in In re Sealed Case, 494 F.3d 139, cited by Jeppesen, 614 F.3d at 1083. We find the D.C. Circuit’s definition and reasoning persuasive, and so adopt it. Critically, In re Sealed Case explained that ‘‘[a] ‘valid defense’ TTT is meritorious and not merely plausible and would require judgment for the defendant.’’ 494 F.3d at 149. The state secrets privilege does not require ‘‘dismissal of a complaint for any

plausible or colorable defense.’’ Id. at 150. Otherwise, ‘‘virtually every case in which the United States successfully invokes the state secrets privilege would need to be dismissed.’’ Id. Such an approach would constitute judicial abdication from the responsibility to decide cases on the basis of evidence ‘‘in favor of a system of conjecture.’’ Id. And the Supreme Court has cautioned against ‘‘precluding review of constitutional claims’’ and ‘‘broadly interpreting evidentiary privileges.’’ Id. at 151 (first citing Webster v. Doe, 486 U.S. 592, 603–04, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988), and then citing United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974)). ‘‘[A]llowing the mere prospect of a privilege defense,’’ without more, ‘‘to thwart a citizen’s efforts to vindicate his or her constitutional rights would run afoul’’ of those cautions. Id. Thus, where the government contends that dismissal is required because the state secrets privilege inhibits it from presenting a valid defense, the district court may properly dismiss the complaint only if it conducts an ‘‘appropriately tailored in camera review of the privileged record,’’ id., and determines that defendants have a legally meritorious defense that prevents recovery by the plaintiffs, id. at 149 & n.4.
CONCLUSION
The legal questions presented in this case have been many and difficult. We answer them on purely legal grounds, but of course realize that those legal answers will reverberate in the context of the larger ongoing national conversation about how reasonably to understand and respond to the threats posed by terrorism without fueling a climate of fear rooted in stereotypes and discrimination. In a previ-

51. As could happen if, for instance, Plaintiffs are unable to substantiate their factual allega-

tions as to the occurrence of the surveillance.

1068

965 FEDERAL REPORTER, 3d SERIES

ous case, we observed that the state secrets doctrine strikes a ‘‘difficult balance TTT between fundamental principles of our liberty, including justice, transparency, accountability and national security,’’ and sometimes requires us to confront ‘‘an irreconcilable conflict’’ between those principles. Jeppesen, 614 F.3d at 1073. In holding, for the reasons stated, that the Government’s assertion of the state secrets privilege does not warrant dismissal of this litigation in its entirety, we, too, have recognized the need for balance, but also have heeded the conclusion at the heart of Congress’s enactment of FISA: the fundamental principles of liberty include devising means of forwarding accountability while assuring national security.
Having carefully considered the Defendants’ various arguments for dismissal other than the state secrets privilege, we conclude that some of Plaintiffs’ search and religion allegations state a claim, while others do not. We therefore affirm in part and reverse in part the district court’s orders, and remand for further proceedings in accordance with this opinion.
AFFIRMED in part, REVERSED in part, and REMANDED.
GOULD and BERZON, Circuit Judges, joined by WARDLAW, FLETCHER, and PAEZ, Circuit Judges, concurring in the denial of rehearing en banc:
Judge Bumatay’s dissent from the denial of rehearing (the ‘‘dissent’’) is a veritable Russian doll of nestled mistakes and misleading statements—open one, and another stares back at you. The panel opinion itself belies most of the accusations. For brevity, we pay particular attention here to the dissent’s most fundamental misperceptions of the panel’s holdings.

I
At the core of this case lies a series of interwoven statutory interpretation issues surrounding the application of the Foreign Intelligence Surveillance Act (‘‘FISA’’), 50 U.S.C. §§ 1801 et seq, in a civil action. The panel opinion concluded that a provision of that statute, 50 U.S.C. § 1806(f), supersedes the common law state secrets evidentiary privilege’s limited dismissal remedy—not the protection of state secrets from disclosure—with regard to evidence or information related to electronic surveillance, and that the secrecy-protective procedures established by 50 U.S.C. § 1806(f), designed precisely for matters implicating national security concerns, apply to the plaintiffs’ claims in this case against the government.
In concluding that § 1806(f)’s procedures apply, the panel opinion decidedly did not, as the dissent asserts, second guess the Executive’s capacity to determine that certain evidence related to electronic surveillance is classified or touches on issues of national security, and therefore deserves protection from disclosure to litigants or the public. See Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1081–82 (9th Cir. 2010) (en banc). Instead, the panel opinion resolved the discrete issue of what should happen in a civil case that involves such information: Need the case be dismissed, as it sometimes is to implement the common law state secrets privilege, or can it go forward but without disclosure of the information to the plaintiffs, under specially tailored litigation procedures that would in other contexts be impermissible as violative of the plaintiffs’ rights as litigants?
Critically for present purposes, the classified material at issue is protected from disclosure under § 1806(f), just as it is under the state secrets privilege’s dismissal option—it is just protected differently.

FAZAGA v. F.B.I.
Cite as 965 F.3d 1015 (9th Cir. 2020)

1069

To ensure that sensitive information is not inadvertently disclosed to the public, the § 1806(f) procedures require the district court to consider the material ex parte and in camera. The government uses these very same procedures all the time when prosecuting suspected terrorists; the government does so by choice, and without any evident handwringing over whether the use of the § 1806(f) procedures might lead to the disclosure of state secrets. And the same ex parte and in camera review takes place when the state secrets privilege is invoked, to ascertain whether it is properly applicable and, if so, whether the case can go forward without the sensitive evidence or must be dismissed; that is exactly what happened in this case in the district court.1
II
The dissent’s misleading assertions about the nature of the § 1806(f)’s procedures underpin its two major legal propositions, neither of which is rooted in the facts of this case, the text of FISA, or any binding precedent.
A
The dissent insists that the panel should have applied a ‘‘clear statement’’ rule to the question whether the § 1806(f) ex parte, in camera method of litigation displaces the state secrets evidentiary privilege’s dismissal remedy.

The panel could not have applied a ‘‘clear statement’’ analysis. Our Circuit’s binding precedent required the panel to ask whether FISA’s § 1806(f)’s procedures ‘‘speak[ ] directly’’ to the question otherwise answered by the dismissal remedy in cases involving classified material related to electronic surveillance. See Kasza v. Browner, 133 F.3d 1159, 1167 (9th Cir. 1998) (internal quotation marks and emphasis omitted). As the panel opinion explained, the text, practice, purpose, and history of FISA and § 1806(f) all quite clearly demonstrate that the ex parte and in camera review established by § 1806(f) squarely answers the ‘‘speak directly’’ question.
The dissent maintains the ‘‘speaks directly’’ standard adopted in Kasza is wrong, because the state secrets evidentiary privilege has constitutional origins. See Dissent at 1073, 1078. The proposed new ‘‘clear statement’’ requirement—effectively, that Congress had to name the state secrets privilege, including its contingent dismissal remedy, to replace that remedy—is improper in the current context for two reasons.
First, no matter the origins or role of the state secrets privilege, at issue here is only the dismissal remedy that sometimes follows the successful invocation of the state secrets evidentiary privilege, when the case cannot as a practical matter be litigated without the privileged evidence.

1. The dissent notes § 1806(f) and (g)’s disclosure provisions, which are available only in exceptional circumstances. As far as we are aware, there has never been a disclosure under FISA. And, as the panel opinion noted: ‘‘As it is Plaintiffs who have invoked the FISA procedures, we proceed on the understanding that they are willing to accept those restrictions to the degree they are applicable as an alternative to dismissal, and so may not later seek to contest them.’’ Amended Opinion at 49. In the unprecedented event that a district

court does order disclosure, nothing in the panel opinion prevents the government from invoking the state secrets privilege’s dismissal remedy as a backstop at that juncture. Finally, the panel does not, as the dissent asserts, ‘‘warn’’ district judges that failure to disclose evidence could constitute an abuse of discretion. Dissent at 1081 n.9. The panel does not take any position on the appropriate standard of review for a district court’s decision regarding the disclosure of FISA materials. Rather, we merely note the approach adopted in other circuits.

1070

965 FEDERAL REPORTER, 3d SERIES

Jeppesen Dataplan, Inc., 614 F.3d at 1082–83. ‘‘Ordinarily, simply excluding or otherwise walling off the privileged information may suffice to protect the state secrets,’’ but, ‘‘[i]n some instances TTT application of the privilege may require dismissal of the action.’’ Id.
The dissent portrays the state secrets privilege as a magic wand that the Executive may wave to remove certain information from litigation or, if necessary, end the case. Not so. ‘‘The privilege belongs to the Government and must be asserted by it,’’ but ‘‘[t]he court itself must determine whether the circumstances are appropriate for the claim of privilege.’’ United States v. Reynolds, 345 U.S. 1, 7–8, 73 S.Ct. 528, 97 L.Ed. 727 (1953); see also El-Masri v. United States, 479 F.3d 296, 312 (4th Cir. 2007). And the role of the court is especially pronounced when it must determine whether dismissal is necessary. See Jeppesen Dataplan, Inc., 614 F.3d at 1082–83. So the dismissal remedy is not the state secrets privilege itself but a procedural exigency, sometimes imposed by the courts to prevent unfairness to the litigants once the evidentiary exclusion privilege is invoked and recognized with regard to certain evidence. Dismissal in the state secrets context is thus not grounded in separation of powers concerns.
Second, and more generally, as the panel opinion recounts, at heart the state secrets privilege is an evidentiary privilege, not a constitutional one. Amended Opinion at 1044–45; see In re United States, 872 F.2d 472, 474–75 (D.C. Cir. 1989). Reynolds, which the dissent recognizes as the wellspring of ‘‘the modern state secrets doctrine,’’ Dissent at 1077, itself made this point:
We have had broad propositions pressed upon us for decision. On behalf of the Government it has been urged that the executive department heads have power to withhold any documents in their cus-

tody from judicial view if they deem it to be in the public interest. Respondents have asserted that the executive’s power to withhold documents was waived by the Tort Claims Act. Both positions have constitutional overtones which we find it unnecessary to pass upon, there being a narrower ground for decision. 345 U.S. at 6, 73 S.Ct. 528. As General Dynamics Corp. v. United States, 563 U.S. 478, 485, 131 S.Ct. 1900, 179 L.Ed.2d 957 (2011), summarized, ‘‘Reynolds was about the admission of evidence. It decided a purely evidentiary dispute by applying evidentiary rules: The privileged information is excluded, and the trial goes on without it.’’
Or the trial doesn’t go on, if the district court decides that dismissal is necessary. But in the narrow context of classified information related to electronic surveillance, FISA’s procedures do away with the need for dismissal, by allowing the court to consider the relevant materials during the course of the litigation in the truncated and secrecy-protective manner established by § 1806(f).
B
The dissent also strives to insulate the government from suit by paring back the coverage of § 1806(f) and related provisions so as not to cover at all suits against the government. The dissent thus presents FISA, and specifically § 1806(f), as singlemindedly concerned with protecting the government’s ability to prosecute criminal defendants without revealing national security secrets.
FISA is decidedly not so one-sided. The dissent never mentions a FISA provision, 50 U.S.C. § 1810, which authorizes affirmative actions against the government challenging electronic surveillance material as unlawfully obtained. Ignoring § 1810, the dissent puts forward a view of the reach of

FAZAGA v. F.B.I.
Cite as 965 F.3d 1015 (9th Cir. 2020)

1071

§ 1806(f)’s procedures much too narrow to accommodate the statute’s provision for affirmative relief. Were the dissent’s oneway-ratchet position correct, in a § 1810 affirmative suit, the need to consider the same evidence that was or should have been excluded in a prosecution of a defendant (because the surveillance used to collect the evidence is alleged to have been unlawful) could lead to dismissal of a § 1810 suit seeking damages for that same illegal surveillance.
To position these procedures as a oneway ratchet for the government, the dissent takes every opportunity to shrink the reach of § 1806(f) and related provisions to a scope much more circumscribed than their terms and purpose support. To highlight four of the dissent’s efforts:
1 To fit the dissent’s narrative that § 1806(f) applies only when the government is on the offensive, the dissent maintains that the government does not intend to ‘‘use’’ the relevant information over which it has asserted the state secrets privilege—a requisite for the application of § 1806(f)’s procedures. But here, the government’s primary reason for invoking the state secrets privilege’s dismissal remedy is its asserted need to use classified information to defend itself if the case went forward. The government submitted, alongside the Attorney General’s invocation of the state secrets privilege, an unclassified declaration stating that ‘‘[a]ddressing plaintiffs’ allegations in this case will risk or require the disclosure of certain sensitive information concerning counterterrorism investigative activity in Southern California, including in particular the nature and scope of Operation Flex.’’
1 The dissent also takes the word ‘‘use’’ out of context. FISA’s procedures apply ‘‘[w]henever the Government intends to enter into evidence or other-

wise use or disclose in any trial, hearing, or other proceeding TTT any information obtained or derived from an electronic surveillance[.]’’ 50 U.S.C. § 1806(c) (emphasis added). In other words, the procedures apply whenever the government uses the information in ‘‘another way’’ or ‘‘any other way’’ than entering it into evidence. See Otherwise, The Oxford English Dictionary Online, https:// www.oed.com/vi ew/Entry/133247?redirectedFrom=otherwise#eid (last visited June 22, 2020). 1 The dissent argues that, to trigger FISA’s review procedures, ‘‘an aggrieved person’’ must be the defendant. Dissent at 1082–83. But the statute is not unidirectional. The dissent takes the ‘‘against an aggrieved person’’ phrase out of context to suit the dissent’s preferred ends. The statutory scheme establishes that § 1806(f)’s procedures apply ‘‘[w]henever the Government intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, against an aggrieved person, any information obtained or derived from an electronic surveillance of that aggrieved person.’’ § 1806(c). A ‘‘trial, hearing, or other proceeding’’ involves two parties, providing either an opportunity to introduce evidence—it is the evidence that is ‘‘against’’ someone. 1 The dissent states that ‘‘§ 1806(f) authorizes the review of only a limited set of documents: the FISA ‘application, order, and such other materials.’ ’’ Dissent at 1079. But that is not what the statute says, and the full text of the relevant phrase tells an entirely different story: § 1806(f) authorizes

1072

965 FEDERAL REPORTER, 3d SERIES

the district court to review the ‘‘application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.’’ § 1806(f) (emphasis added). As used in the actual statute as opposed to the dissent’s truncated version, ‘‘such’’ does not, as the dissent erroneously claims, refer only backwards to ‘‘application’’ and ‘‘order;’’ it also, and most prominently, applies forward to ‘‘materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.’’ §?1806(f); see Such, Merriam-Webster Online, https://www.merriam-webster. com/dictionary/such (last visited June 22, 2020) (defining ‘‘such’’ principally to mean ‘‘of a kind or character to be indicated or suggested’’) (emphasis added).
In conjunction with misreading the statute in these and other respects, the dissent avows that the panel opinion gives ‘‘unintended breadth’’ to FISA. Dissent at 1084 (quoting Yates v. United States, 574 U.S. 528, 135 S. Ct. 1074, 1085, 191 L.Ed.2d 64 (2015)). But the only way to know what ‘‘breadth’’ is ‘‘intended’’ is to read the statute. Section 1806(f) speaks in the broadest language possible. The procedures apply ‘‘whenever the Government intends to enter into evidence or otherwise use or disclose in any trial, hearing, or proceeding TTT any information obtained or derived from an electronic surveillance’’ or ‘‘whenever any motion or request is made TTT pursuant to any other statute or rule of the United States or any State before any court or other authority.’’ (Emphases added). If that capacious language were not enough to maximize the provision’s reach, every conceivable clause is separated by a disjunctive ‘‘or.’’ Rather than ‘‘jam a

square peg into a round hole,’’ Dissent at 1085, or ‘‘hide elephants in mouseholes,’’ Dissent at 1084 (quoting Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001)), the panel opinion acknowledged that, when statutes use expansive language, we should understand that Congress did not mean for us to read in limitations that are not there.
***
The dissent is replete with quotations from Washington, Hamilton, and Jefferson, all making the indisputable point that, to protect our national interest, our government must be able to keep certain information secret. Neither the Founding Fathers’ concerns about governmental secrecy nor broad issues of executive authority are at issue in this case. The question presented to the panel here was not whether the government should be able to keep classified material secret but how. The procedures established by § 1806(f) (which the government leans on heavily when it is the prosecutor) ensure secrecy. Under any reasonable reading of the statute, these procedures, when otherwise applicable, supersede the state secrets privilege’s contingent dismissal remedy and apply to the information at issue in this case.
For the forgoing reasons, we concur in the denial of rehearing en banc.
STEEH, Senior District Judge, statement regarding the denial of rehearing en banc:
Although, as a visiting judge sitting by designation, I am not permitted to vote on a petition for rehearing en banc, I agree with the views expressed by Judges Berzon and Gould in their concurrence in the denial of rehearing en banc.

FAZAGA v. F.B.I.
Cite as 965 F.3d 1015 (9th Cir. 2020)

1073

BUMATAY, Circuit Judge, with whom CALLAHAN, IKUTA, BENNETT, R. NELSON, BADE, LEE, VANDYKE, Circuit Judges, join, and COLLINS and BRESS, Circuit Judges, join except for Section III.A.2, dissenting from the denial of rehearing en banc:
From the earliest days of our Nation’s history, all three branches of government have recognized that the Executive has authority to prevent the disclosure of information that would jeopardize national security. Embodied in the state secrets privilege, such discretion lies at the core of the executive power and the President’s authority as Commander in Chief. Indeed, these powers were vested in a single person precisely so that the Executive could act with the requisite ‘‘[d]ecision, activity, secrecy, and d[i]spatch.’’ The Federalist No. 70 (Alexander Hamilton) (emphasis added).
In contrast to the broad constitutional design of the state secrets privilege, Congress passed the Foreign Intelligence Surveillance Act (‘‘FISA’’) for a limited function—to establish procedures for the lawful electronic surveillance of foreign powers and their agents. Among other things, FISA provides a mechanism for in camera, ex parte judicial review of electronic surveillance evidence when the government tries to use such evidence, or a surveilled party tries to suppress it. See 50 U.S.C. § 1806(f).1
By its plain text and context, § 1806(f) provides procedures to determine the admissibility of electronic surveillance evidence—a commonplace gatekeeping function exercised by courts throughout this

country. When the provision is triggered, courts review only a limited set of documents, the FISA application, order, and like materials, and may generally only suppress the evidence if it was unlawfully obtained. § 1806(f), (g). Thus, § 1806(f) coexists with the state secrets privilege by providing judicial oversight over the government’s affirmative use of electronic surveillance evidence, while preserving the Executive’s constitutional prerogative to protect national security information.
But today, the Ninth Circuit, once again, strains the meaning of a statute and adopts a virtually boundless view of § 1806(f). Under the court’s reading, this narrow provision authorizes judicial review of any evidence, on any claim, for any purpose, as long as the party’s allegations relate to electronic surveillance. With this untenably broad interpretation, the court then rules that the judicial branch will not recognize the state secrets privilege over evidence with any connection to electronic surveillance. Most alarming, this decision may lead to the disclosure of state secrets to the very subjects of the foreign-intelligence surveillance. With this, I cannot agree.
Our court’s decision ignores that Congress articulated no directive in FISA to displace the state secrets privilege—even under the most generous abrogation standards. More fundamentally, the court should have ensured that Congress was unmistakably clear before vitiating a core constitutional privilege. When the Supreme Court confronts a legislative enactment implicating constitutional concerns— federalism or separation of powers—it has

1. All statutory references are to Title 50 of the United States Code. In relevant part, § 1806(f) provides, when triggered, ‘‘the United States district court TTT shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national se-

curity of the United States, review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.’’

1074

965 FEDERAL REPORTER, 3d SERIES

commonly required a clear statement from Congress before plowing ahead. It has done so out of a due respect for those constitutional concerns. The state secrets privilege deserves the same respect.
In discovering abrogation of the state secrets privilege more than 40 years after FISA’s enactment, our court disrupts the balance of powers among Congress, the Executive, and the Judiciary. We have previously recognized that the state secrets doctrine preserves the difficult balance among ‘‘fundamental principles of our liberty, including justice, transparency, accountability and national security.’’ Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1073 (9th Cir. 2010) (en banc). Our refusal to reexamine this case now tips that balance in favor of inventive litigants and overzealous courts, to the detriment of national security. Moving forward, litigants can dodge the state secrets privilege simply by invoking ‘‘electronic surveillance’’ somewhere within the Ninth Circuit. And in defending such cases, the government may be powerless to prevent the disclosure of state secrets. For this reason, I respectfully dissent from the denial of rehearing en banc.
I.
In this case, Yassir Fazaga and his coplaintiffs sued the United States, the FBI, and FBI special agents, for using an informant to gather information from the Muslim community in Southern California. Their complaint asserted numerous constitutional and statutory causes of action alleging unlawful searches and surveillance and violations of their religious liberty.
Soon after the suit was filed, the FBI asserted the state secrets privilege over information related to its investigation.

Through a declaration of the Attorney General, the government warned that proceeding on the claims risked the disclosure of state secrets.2 Accordingly, the government moved to dismiss the religious liberty claims.
After scrutinizing the government’s classified and unclassified declarations, the district court validated its assertion of the privilege. The court found that the litigation involved intelligence that, if disclosed, would significantly compromise national security. Because the risk of disclosure could not be averted through protective orders or other restrictions, the court dismissed all but one of the claims.
On appeal, a panel of this court reversed. The panel first held that FISA abrogated the state secrets privilege. It thought that § 1806(f) ‘‘speaks directly’’ to the same concerns as the state secrets privilege and, thus, displaced it—despite recognizing that the privilege ‘‘may’’ have a ‘‘constitutional core’’ or ‘‘constitutional overtones.’’ Am. Op. at 58–59. Next, the court held that § 1806(f)’s review procedures were triggered in this case. As a result, the court instructed the district court to use those procedures to review any evidence relating to the alleged electronic surveillance—even the evidence that the government asserted constituted state secrets.
Because each of these holdings is erroneous, we should have reviewed this case en banc.
II.
Abrogation of ordinary common law is rooted in due respect for Congress. ‘‘Federal courts, unlike state courts, are not general common-law courts and do not possess a general power to develop and

2. Specifically, the government sought to withhold evidence that would (1) confirm or deny the particular targets of the investigation; (2) reveal the initial reasons for opening the in-

vestigation, the materials uncovered, or the status and results of the investigation; and (3) reveal particular sources or methods used.

FAZAGA v. F.B.I.
Cite as 965 F.3d 1015 (9th Cir. 2020)

1075

apply their own rules of decision.’’ City of Milwaukee v. Illinois, 451 U.S. 304, 312, 101 S.Ct. 1784, 68 L.Ed.2d 114 (1981). Accordingly, once ‘‘the field has been made the subject of comprehensive legislation,’’ federal common law must yield to the legislative enactment. Id. at 314, 101 S.Ct. 1784. In the ordinary case, Congress need not affirmatively proscribe the use of federal common law, but it must ‘‘speak directly’’ to the questions previously addressed by common law. Id. at 315, 101 S.Ct. 1784.
Yet this is no ordinary case. Here, the court didn’t abrogate run-of-the-mill, judicially created common law—it displaced an executive privilege. And it did so while summarily dismissing the constitutional and separation-of-powers implications of its holding. Before supplanting a privilege held by a co-equal branch of government, courts would be wise to consider the Constitution and the history of the privilege at issue. As Justice Scalia recognized, ‘‘a governmental practice [that] has been open, widespread, and unchallenged since the early days of the Republic’’ deserves special deference. NLRB v. Noel Canning, 573 U.S. 513, 572, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014) (Scalia, J., concurring) (citations omitted). This approach should guide our analysis here.
A.
Article II of the Constitution commands that ‘‘[t]he executive Power shall be vested in a President of the United States of

America.’’ U.S. Const. art. II, § 1. And the President is also designated as the ‘‘Commander in Chief of the Army and Navy of the United States.’’ U.S. Const. art. II, § 2.
By these terms, the Constitution was originally understood to vest the President with broad authority to protect our national security. See Hamdi v. Rumsfeld, 542 U.S. 507, 580, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (Thomas, J., dissenting) (‘‘The Founders intended that the President have primary responsibility—along with the necessary power—to protect the national security and to conduct the Nation’s foreign relations.’’). As Hamilton observed, a single Executive could better act with ‘‘[d]ecision, activity, secrecy, and d[i]spatch’’ as would be required to respond to the national security crises of the day. The Federalist No. 70 (Alexander Hamilton).
Secrecy, at least at times, is a necessary concomitant of the executive power and command of the Nation’s military. As commander of the Continental Army, George Washington explained to Patrick Henry that ‘‘naturally TTT there are some Secrets, on the keeping of which so, depends, oftentimes, the salvation of an Army: Secrets which cannot, at least ought not to, be [e]ntrusted to paper; nay, which none but the Commander in Chief at the time, should be acquainted with.’’3
Given the Executive’s inherent need for secrecy, it comes as no surprise that early presidents regularly asserted a privilege over the disclosure of sensitive information.4 In 1792, when President Washington

3. Letter from George Washington to Patrick Henry (Feb. 24, 1777), Library of Congress, https://www.loc.gov/resource/mgw3h.001/? sp=26&=text.
4. Although this history recounts executive privileges in general, the state secrets privilege has been described as a ‘‘branch of the executive privilege.’’ Marriott Int’l Resorts, L.P. v. United States, 437 F.3d 1302, 1307 (Fed. Cir. 2006). To the extent there are dis-

tinctions among executive privileges, the state secrets privilege is more inviolable. See United States v. Nixon, 418 U.S. 683, 706, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (distinguishing between privileges based ‘‘solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations’’ with those asserted from the ‘‘need to protect military, diplomatic, or sensitive national security secrets’’).

1076

965 FEDERAL REPORTER, 3d SERIES

found himself faced with the first-ever congressional request for presidential materials, he recognized an executive privilege to avoid disclosure of secret material. See Abraham D. Sofaer, Executive Power and the Control of Information: Practice Under the Framers, 1977 Duke L.J. 1, 5–6. Washington’s Cabinet, including Hamilton and Jefferson, agreed ‘‘that the executive ought to communicate such papers as the public good would permit, and ought to refuse those, the disclosure of which would injure the public.’’ Id. at 6 (quoting The Complete Jefferson 1222 (S. Padover ed. 1943)); see also Mark J. Rozell, Restoring Balance to the Debate over Executive Privilege: A Response to Berger, 8 Wm. & Mary Bill Rts. J. 541, 556 (2000).
President Jefferson, even as a prominent critic of an overly strong executive branch, held the same view on the need for secrecy. As he put it in 1807, ‘‘[a]ll nations have found it necessary, that for the advantageous conduct of their affairs, some of these proceedings, at least, should remain known to their executive functionary only. He, of course, from the nature of the case, must be the sole judge of which of them the public interests will permit publication.’’5 Similarly, Jefferson wrote to the prosecutor of the Aaron Burr case to explain that it was ‘‘the necessary right of the President TTT to decide, independently of all other authority, what papers, coming to him as President, the public interests permit to be communicated, & to whom.’’6
Founding-era Presidents were not alone in their view. Members of Congress also respected some degree of executive privilege. When Washington refused a congressional request for materials, then-Representative James Madison disagreed with Washington’s refusal, but also recognized

that ‘‘the Executive had a right, under a due responsibility, also, to withhold information, when of a nature that did not permit a disclosure of it at the time.’’ 5 Annals of Cong. 773 (1796); Sofaer, supra at 12. Others went further, asserting, for example, that the President ‘‘had an undoubted Constitutional right, and it would be his duty to exercise his discretion on this subject, and withhold any papers, the disclosure of which would, in his judgment, be injurious to the United States.’’ 5 Annals of Cong. 675 (1796) (remarks of Rep. Hillhouse).
Congress’s early actions also reflected a deference to the Executive’s authority to limit disclosures. When seeking information from the President, Congress narrowed its requests to such presidential papers ‘‘of a public nature,’’ 3 Annals of Cong. 536 (1792), or ‘‘as he may think proper,’’ 4 Annals of Cong. 250–51 (1794), and excluded ‘‘such [papers] as he may deem the public welfare to require not to be disclosed.’’ 16 Annals of Cong. 336 (1807). Thus, early Congresses ‘‘practically always’’ qualified their requests for foreign-affairs information to those documents that ‘‘in [the President’s] judgment [were] not incompatible with the public interest.’’ Henry M. Wriston, Executive Agents in American Foreign Relations 121–22 (1929).
Like the Executive and Congress, the Judiciary has long recognized an executive privilege over sensitive information. Chief Justice Marshall suggested that if the Attorney General ‘‘thought that any thing was communicated to him in confidence he was not bound to disclose it’’ in the litigation. Marbury v. Madison, 5 U.S. 137, 144, 1 Cranch 137, 2 L.Ed. 60 (1803); see also

5. Letter from Thomas Jefferson to George Hay (June 17, 1807), Library of Congress, https://www.loc.gov/resource/mtj1.038 0446 0446/?st=text.

6. Letter from Thomas Jefferson to George Hay (June 12, 1807), Library of Congress, https://www.loc.gov/resource/mtj1.038 0446 0446/?st=text.

FAZAGA v. F.B.I.
Cite as 965 F.3d 1015 (9th Cir. 2020)

1077

Robert M. Chesney, State Secrets and the Limits of National Security Litigation, 75 Geo. Wash. L. Rev. 1249, 1271 (2007). And in response to President Jefferson’s objection to producing a letter in the Burr trial, Chief Justice Marshall explained that there was ‘‘nothing before the court which shows that the letter in question contains any matter the disclosure of which would endanger the public safety,’’ but ‘‘[t]hat there may be matter, the production of which the court would not require, is certain.’’ United States v. Burr, 25 F. Cas. 30, 37 (C.C.D. Va. 1807); see also Chesney, supra at 1272–73 (arguing that the Burr trial is significant for Marshall’s introduction of the idea that ‘‘risk to public safety might impact discoverability of information held by the government’’). Perhaps anticipating the modern-day state secrets privilege, Marshall made clear ‘‘that the remedy he contemplated for executive withholding would be dismissal of the prosecution, rather than an order directing the President to appear or punishing any executive officer.’’ Sofaer, supra at 17.
The Supreme Court also recognized that President Lincoln ‘‘was undoubtedly authorized during the war, as commander-inchief of the armies of the United States, to employ secret agents to enter the rebel lines and obtain information respecting the strength, resources, and movements of the enemy[.]’’ Totten v. United States, 92 U.S. 105, 106, 23 L.Ed. 605 (1875). In Totten, the Court dismissed a contract claim where the very existence of the alleged contract needed to be concealed. Id. Such concealment was a reality ‘‘in all secret employments of the government in time of war, or upon matters affecting our foreign relations, where a disclosure of the service might compromise or embarrass our gov-

ernment in its public duties, or endanger the person or injure the character of the agent.’’ Id.
Consistent with early historical practice and Founding-era understandings, modern courts have recognized the Article II dimension of executive privileges. See Nixon, 418 U.S. at 711, 94 S.Ct. 3090 (explaining that when a privilege against disclosure relates to the ‘‘effective discharge of a President’s powers, it is constitutionally based’’); Franchise Tax Bd. of California v. Hyatt, ––– U.S. ––––, 139 S. Ct. 1485, 1498–99, 203 L.Ed.2d 768 (2019) (identifying the ‘‘executive privilege’’ as one of the ‘‘constitutional doctrines’’ that are ‘‘implicit in the [Constitution’s] structure and supported by historical practice’’); see also Dep’t of Navy v. Egan, 484 U.S. 518, 527, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988) (‘‘The authority to protect [national-security] information falls on the President as head of the Executive Branch and as Commander in Chief.’’).7 As Justice Jackson succinctly put it: ‘‘The President, both as Commander-in-Chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports neither are nor ought to be published to the world.’’ Chicago & S. Air Lines v. Waterman S. S. Corp., 333 U.S. 103, 111, 68 S.Ct. 431, 92 L.Ed. 568 (1948).
This brings us to the modern state secrets doctrine, articulated in United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953). In Reynolds, the Court recognized the Executive’s ‘‘well established’’ privilege against revealing military and state secrets. Id. at 7–8, 73 S.Ct. 528. The Court held that ‘‘even the most compelling necessity cannot overcome the

7. None of this is to say that the Executive has an absolute privilege to prevent the disclosure of material under any circumstance. I explore this history only insofar as it bears on the

particular issue in this case—the proper standard to apply before abrogating the state secrets privilege.

1078

965 FEDERAL REPORTER, 3d SERIES

claim of privilege’’ if state secrets are at stake. Id. at 11, 73 S.Ct. 528; see also ElMasri v. United States, 479 F.3d 296, 303 (4th Cir. 2007) (‘‘Although the state secrets privilege was developed at common law, it performs a function of constitutional significance, because it allows the executive branch to protect information whose secrecy is necessary to its military and foreignaffairs responsibilities.’’). As an en banc court, we’ve respected the ability of the government to seek to ‘‘completely remove[ ]’’ state secrets from litigation or even seek ‘‘dismissal of the action.’’ Jeppesen, 614 F.3d at 1082–83. And in evaluating the assertion of the privilege, we ‘‘defer to the Executive on matters of foreign policy and national security.’’ Id.
B.
Given this constitutional and historical background, courts ought to tread carefully before jettisoning the state secrets privilege. Here, we should have done so by requiring a clear congressional statement before displacing the privilege. By waiting for a clear statement, we would have avoided assuming that Congress has ‘‘by broad or general language, legislate[d] on a sensitive topic inadvertently or without due deliberation.’’ Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 139, 125 S.Ct. 2169, 162 L.Ed.2d 97 (2005) (plurality opinion). Instead, the court today undermines a longstanding executive privilege by finding abrogation lurking in FISA’s murky text.
Unlike abrogation of ordinary common law, which shows our deference to Congress, the displacement of the state secrets privilege creates a tension between Congress and the Executive because we elevate a statute over a constitutionally based privilege. As the Court advises, we should be ‘‘reluctant to intrude upon the authority of the Executive in military and national security affairs’’ until ‘‘Congress specifically has provided otherwise.’’ Egan, 484 U.S.

at 530, 108 S.Ct. 818. Thus, whether FISA merely ‘‘speaks directly’’ to the same concerns as the privilege should not be sufficient to deprive the Executive of a constitutionally derived right. Instead, we should have constrained ourselves to respecting the privilege unless and until a statute unmistakably and unquestionably dictates otherwise.
This is not a novel idea. When a matter implicates constitutional concerns, the Court has regularly required a clear statement. See, e.g., Will v. Michigan Dep’t of State Police, 491 U.S. 58, 65, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (requiring Congress to be ‘‘unmistakably clear’’ before altering the ‘‘usual constitutional balance between the States and the Federal Government’’); Franklin v. Massachusetts, 505 U.S. 788, 800–01, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992) (requiring an express statement before subjecting presidential action to APA review ‘‘[o]ut of respect for the separation of powers and the unique constitutional position of the President’’). The Court has likewise required a clear statement before abrogating Indian treaty rights, out of a respect for tribal sovereignty. See United States v. Dion, 476 U.S. 734, 739, 106 S.Ct. 2216, 90 L.Ed.2d 767 (1986) (explaining the reluctance to find abrogation absent ‘‘explicit statutory language’’).
Applying such a standard is also consistent with the constitutional-avoidance canon. See United States ex rel. Attorney Gen. v. Delaware & Hudson Co., 213 U.S. 366, 408, 29 S.Ct. 527, 53 L.Ed. 836 (1909) (‘‘[W]here a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.’’). Thus, when ‘‘a particular interpretation of a statute invokes the outer limits of Congress’ power,’’ as is the case here, we

FAZAGA v. F.B.I.
Cite as 965 F.3d 1015 (9th Cir. 2020)

1079

should ‘‘expect a clear indication that Congress intended that result.’’ I.N.S. v. St. Cyr, 533 U.S. 289, 299, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001).
All in all, we should be ‘‘loath to conclude that Congress intended to press ahead into dangerous constitutional thickets in the absence of firm evidence that it courted those perils.’’ Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 466, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989). But the court here is undeterred. It reads FISA as abrogating the privilege despite the lack of any firm evidence that Congress sought to do so. And rather than consulting the Constitution or the history of the state secrets privilege, the court simply waves off the privilege as something that ‘‘may’’ have a ‘‘constitutional core’’ or ‘‘constitutional overtones.’’ Am. Op. at 58–59. Respectfully, when we suspect that an executive privilege ‘‘may’’ have a ‘‘constitutional core,’’ we should do more before tossing it aside. Had we done so here, perhaps we would’ve recognized that the Article II roots of the privilege and its long history require that Congress be unmistakably clear before we simply replace it with a congressional enactment. And because FISA makes no mention of the state secrets privilege, the statute would fall pitifully short of this standard.
C.
Even if we should stick with the run-ofthe-mill, ‘‘speaks directly’’ standard for displacement, FISA still falls short. Demonstrating that a statute speaks directly to the same questions as the common law is no low bar. See, e.g., United States v. Texas, 507 U.S. 529, 535, 113 S.Ct. 1631, 123 L.Ed.2d 245 (1993) (holding that silence in a statute ‘‘falls far short of an expression of legislative intent to supplant the existing common law in that area’’). The court’s analysis does not clear this bar.

At the outset, the court’s opinion critically fails to recognize the circumscribed purpose of § 1806(f)—to provide a mechanism to review the admissibility of electronic surveillance evidence. See infra section III. Determining the admissibility of evidence is an everyday function of courts. Section 1806(f) merely adds extra precautions in the case of electronic surveillance evidence. Nothing more. The statute’s design is in stark contrast to the constitutional purpose of the state secrets privilege— to ensure our ‘‘defer[ence] to the Executive on matters of foreign policy and national security’’ and to prevent courts from ‘‘second guessing the Executive in this arena.’’ Jeppesen, 614 F.3d at 1081–82. Contrary to the court’s interpretation, § 1806(f) and the state secrets privilege stand side by side, maintaining the Judiciary’s control over the admissibility of evidence on one hand while deferring to the Executive’s authority to protect national security information on the other.
Relatedly, the court also overlooks a significant limitation on § 1806(f)’s scope of review. Section 1806(f) authorizes the review of only a limited set of documents: the FISA ‘‘application, order, and such other materials.’’ The court’s decision treats this language as allowing review of ‘‘any’’ materials tangentially related to electronic surveillance. Am. Op. at 102– 103. But the phrase ‘‘such other materials’’ cannot be read so boundlessly. See Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114–15, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001) (‘‘[W]here general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.’’). Even without this canon, ordinary users of the English language understand the word ‘‘such’’ to mean ‘‘something similar,’’ ‘‘of the same class, type, or sort,’’ or ‘‘of the character, quality,

1080

965 FEDERAL REPORTER, 3d SERIES

or extent previously indicated or implied.’’ Such, Webster’s Ninth New Collegiate Dictionary (1986).8
Thus, the phrase ‘‘such other material’’ refers to documentary evidence like the ‘‘application’’ and ‘‘order’’; in other words, materials containing information necessary to authorize the surveillance. See, e.g., § 1804(c) (‘‘The judge may require the applicant to furnish such other information as may be necessary to make the determinations required [to authorize the surveillance under § 1804].’’) (emphasis added). It does not broadly reach any evidence related to electronic surveillance as the court’s decision assumes. It certainly does not reach the evidence over which the government asserted the privilege— which goes far beyond FISA documents. See supra note 2.
Furthermore, § 1806(f) didn’t create anything novel to suggest displacement of the state secrets privilege. The court’s opinion treats § 1806(f) as enacting ‘‘an alternative mechanism’’ of ex parte, in camera review, which shows Congress’s intent to ‘‘eliminate[ ] the need to dismiss the case entirely’’ under the state secrets privilege. Am. Op. at 61–62. Not so. PreFISA courts already conducted in camera and ex parte review with regularity. See United States v. Belfield, 692 F.2d 141, 149 (D.C. Cir. 1982) (recognizing that prior to FISA courts had ‘‘constantly’’ and ‘‘uniformly’’ held that ‘‘the legality of electronic, foreign intelligence surveillance may, even should, be determined on an in camera, ex parte basis’’). Given that ex parte, in camera review procedures coexisted with the state secrets privilege before FISA, there’s no reason to construe Congress’s codification of such procedures as an intent to eliminate the privilege.

Nor does § 1806(f)’s triggering process—the filing of an affidavit under oath by the Attorney General—support abrogation. The court views the superficial similarity between the assertion of the state secrets privilege by the head of a department, see Jeppesen, 614 F.3d at 1080, and § 1806(f)’s affidavit requirement as evidence that Congress intended abrogation. Such evidence actually cuts the other way. Under FISA, the definition of ‘‘Attorney General’’ permits a number of lowerranked Department of Justice officials to invoke FISA’s judicial review procedures, see § 1801(g), which makes sense given its main use in criminal prosecutions. By contrast, the head of any department has the non-delegable authority to assert the state secrets privilege. Jeppesen, 614 F.3d at 1080. Nothing in FISA’s text suggests that Congress sought to remove the privilege from the hands of the Secretary of State, the Director of National Intelligence, and other cabinet heads, and simply transfer it to the Attorney General and his subordinates. Contrary to the court’s assessment, the difference between who can assert the privilege and who can invoke § 1806(f) reaffirms that FISA coexists with, rather than displaces, the state secrets privilege.
Finally, the court’s view of FISA as a replacement for the state secrets privilege ignores that the provision not only authorizes but mandates disclosure. See § 1806(g) (requiring the court to disclose evidence ‘‘to the extent that due process requires discovery or disclosure’’); see also § 1806(f) (authorizing the court to disclose evidence to the aggrieved person when ‘‘necessary to make an accurate determination of the legality of the surveillance’’). And under the court’s broad reading, FISA may very

8. Continuing to ignore this longstanding canon of interpretation, the concurrence to the denial of rehearing en banc doubles down on a boundless reading of this phrase. But this

reading treats the word ‘‘such’’ as if it meant ‘‘any.’’ We should apply the statute as Congress wrote it, not as we might wish it to be.

FAZAGA v. F.B.I.
Cite as 965 F.3d 1015 (9th Cir. 2020)

1081

well authorize disclosure of state secrets to the very subjects of the surveillance. See Am. Op. 68 (holding that plaintiffs’ request for electronic surveillance evidence triggers § 1806(f) review).9
But the state secrets privilege does not tolerate any disclosure—not even in camera and ex parte—if it can be avoided. See Reynolds, 345 U.S. at 10, 73 S.Ct. 528 (‘‘[T]he court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.’’). Such disclosures, when involving national security secrets, are inimical to the secrecy afforded to the Executive under Article II. Thus, FISA fails to speak directly to the paramount concern for the secrecy at the heart of the state secrets privilege.
Given the silence of the statutory text, it’s unsurprising that the court’s opinion resorts to legislative history to support abrogation. But ‘‘legislative history is not the law.’’ Epic Sys. Corp. v. Lewis, ––– U.S. ––––, 138 S. Ct. 1612, 1631, 200 L.Ed.2d 889 (2018). We ‘‘have no authority to enforce a principle gleaned solely from legislative history that has no statutory reference point.’’ Shannon v. United States, 512 U.S. 573, 584, 114 S.Ct. 2419, 129 L.Ed.2d 459 (1994) (cleaned up). Even so, from hundreds of pages of legislative

history, the court excavates only vague quotes describing FISA as a ‘‘fundamental reform’’ aimed at curbing unchecked executive surveillance. See Am. Op. at 63–64. The court can’t even muster up a single floor statement mentioning the state secrets privilege. Even for those who would rely on legislative history, this alone should end the inquiry.
Nevertheless, the legislative history shows that—contrary to the court’s view— the state secrets privilege coexists with FISA. For example, a committee report notes that preexisting ‘‘defenses against disclosure,’’ which would include the state secrets privilege, were intended to be undisturbed by FISA. See H.R. Rep. No. 951283, at 93 (1978). Another report explained that even when § 1806(f) applied, the government could still ‘‘prevent[ ]’’ the court’s ‘‘adjudication of legality’’ simply by ‘‘forgo[ing] the use of the surveillancebased evidence’’ where disclosure of such evidence ‘‘would damage the national security.’’ S. Rep. No. 95-701, at 65 (1978). And another explains that § 1806(f) was crafted ‘‘to prevent these carefully drawn procedures from being bypassed by the inventive litigant.’’ H.R. Rep. No. 95-1283, at 91.
Ultimately, despite the lengthy excursion into FISA’s legislative history, the court simply ignores material that undermines its interpretation. We’re instead of-

9. For the first time, Judge Berzon announces that the panel’s opinion is actually limited to the state secrets privilege’s dismissal remedy and that the government is free to reassert the privilege if the district court orders disclosure. See Concurrence at 1069 n.1. This is news to anyone reading the panel opinion, which explicitly authorizes the district court to ‘‘disclose’’ state secrets evidence to the ‘‘plaintiffs.’’ See Am. Op. at 103. The opinion goes so far to warn that ‘‘not’’ disclosing such evidence could constitute an abuse of discretion. Id. at 1065 n.49 (emphasis added).
Nevertheless, that the panel needs to amend its opinion through a nonbinding concurrence

is reason enough for us to have reheard this case en banc. We owe the district courts and litigants a clear statement of the law—especially in a case implicating national security concerns. More fundamentally, this newly crafted limitation of the court’s holding doesn’t alter any of the concerns raised in this dissent and in many ways exacerbates them. The court’s holding, even as purportedly limited, impinges on a constitutionally based privilege based on a misreading of FISA. And if raising concerns about the court’s degradation of separation of powers and our constitutional design makes me a ‘‘veritable Russian doll’’ maker, see Concurrence at 1068, then bring on the dolls.

1082

965 FEDERAL REPORTER, 3d SERIES

fered only generic, cherry-picked quotes about FISA—proving yet again that relying on legislative history is ‘‘an exercise in looking over a crowd and picking out your friends.’’ Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005) (cleaned up). But if § 1806(f) was not meant for ‘‘inventive litigants,’’ it was equally not meant for inventive courts.
III.
Most frustrating about our court’s decision here is that § 1806(f) doesn’t even apply to plaintiffs’ case. Section 1806(f) isn’t a freestanding vehicle to litigate the merits of any case involving electronic surveillance. FISA’s review procedures are triggered only to determine the admissibility of the government’s electronic surveillance evidence. In this case, the government never sought to admit and plaintiffs never sought to suppress any such evidence. Accordingly, § 1806(f) wasn’t invoked. Yet the court creatively interprets two clauses of the statute to foist FISA’s review mechanism into this case. We should have corrected this misinterpretation through en banc review.
A.
Section 1806(f)’s review procedures are triggered if the government gives notice that it ‘‘intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding TTT, against an aggrieved person, any information obtained or derived from an electronic surveillance of that aggrieved person[.]’’ § 1806(c), (f). The court held that when the government asserted the state secrets privilege it effectively gave notice that it intended to ‘‘use’’ the evidence against plaintiffs. This is wrong for two separate reasons.

1.
First, § 1806(c) doesn’t apply because the government isn’t seeking to use the state secrets as evidence. By asserting the privilege, the government is not using evidence in any reasonable sense of the word. Quite the opposite: the government seeks to remove this evidence to avoid disclosing state secrets. See Jeppesen, 614 F.3d at 1079 (‘‘A successful assertion of privilege under Reynolds will remove the privileged evidence from the litigation.’’). The court suggests that it ‘‘is precisely because the Government would like to use this information to defend itself that it has asserted the state secrets privilege.’’ Am. Op. at 67. But this is precisely backwards. It transforms the government’s expressed inability to use evidence into an expressed intent to use it. Such upside-down logic should not stand.
And no matter what tortured conception of ‘‘use’’ the court conjures up here, to ‘‘use’’ something means to do so for its intended purpose. Smith v. United States, 508 U.S. 223, 242, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993) (Scalia, J., dissenting). ‘‘When someone asks, ‘Do you use a cane?,’ he is not inquiring whether you have your grandfather’s silver-handled walking stick on display in the hall; he wants to know whether you walk with a cane.’’ Id. So too here: the government is not ‘‘using’’ the evidence merely by asserting the privilege over it. Evidence is ‘‘used’’ when it is being offered for admission or disclosed for some other evidentiary purpose.
2.
Second, it’s doubtful that § 1806(c) could apply here since there was no proceeding against ‘‘an aggrieved person.’’ By its terms, this provision applies only to a ‘‘trial, hearing, or other proceeding’’ ‘‘against an aggrieved person.’’ § 1806(c). This interpretation flows from the nearest-reason-

FAZAGA v. F.B.I.
Cite as 965 F.3d 1015 (9th Cir. 2020)

1083

able-referent canon. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 140–41 (2012) (‘‘When the syntax involves something other than a parallel series of nouns or verbs, a prepositive or postpositive modifier normally applies only to the nearest reasonable referent.’’). It’s also consistent with ordinary usage. Although the court now proclaims the opposite, see Am. Op. at 70, we commonly refer to trials, hearings, and proceedings as being ‘‘against’’ a party.10 Instead, the court curiously views ‘‘against an aggrieved person’’ as modifying the phrase ‘‘information obtained or derived.’’ But under that odd interpretation, this phrase would be modified twice by ‘‘aggrieved person.’’ The statute would be triggered by the government’s use of ‘‘any information obtained or derived [against the aggrieved person] from an electronic surveillance of that aggrieved person.’’ § 1806(c). That is not a sensical reading.11
B.
Perhaps sensing the weakness of its § 1806(c) reasoning, the court serves an alternative explanation for how FISA’s review procedures were triggered. Section 1806(f) also provides that its procedures are invoked:
whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule TTT to discover or

obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter[.]
§ 1806(f).
By its context, this clause is designed to funnel an aggrieved person’s evidentiary motions and requests—which could be brought under a myriad of preexisting statutes or rules—into § 1806(f)’s admissibility review procedures. It is not an independent grant of authority to force government disclosure under § 1806(f) anytime, for any reason, for any evidence, as long as a party has some claim relating to electronic surveillance.
But the court holds that the clause was triggered because the plaintiffs’ complaint requested injunctive relief ordering the government to destroy or return any unlawfully obtained materials. According to the court, by asking for the ‘‘return’’ of electronic surveillance, the complaint’s prayer for relief serves as a ‘‘request[ ]’’ to ‘‘obtain’’ that information within the meaning of § 1806(f). Am. Op. 68.
Contrary to the court’s expansive interpretation, this clause is limited to procedural motions pertaining to the admissibility of evidence, like the familiar ‘‘motion[s]’’ to ‘‘discover, obtain, or suppress.’’ § 1806(f). The clause’s use of the word

10. See, e.g., Paine v. City of Lompoc, 265 F.3d 975, 986 (9th Cir. 2001) (‘‘trial against these two defendants’’); United States v. Branch, 368 F. App’x 842, 844 (9th Cir. 2010) (‘‘misconduct hearing against the government’’);Lopez-Aguilar v. Barr, 948 F.3d 1143, 1146 (9th Cir.2020) (‘‘removal proceedings against Lopez-Aguilar’’).
11. The phrase ‘‘against an aggrieved person’’ also doesn’t modify ‘‘enter into evidence or otherwise use or disclose.’’ For adherents to the familiar surplusage canon, this reading would render the phrase completely superfluous. After all, who else is the government

going to use the evidence against but the aggrieved person? Additionally, in ordinary English, we don’t often speak about ‘‘disclos[ing]’’ information ‘‘against’’ someone. And if this construction was intended, we would have expected Congress to make this point clear by placing the phrase closer to the verbs it modifies. See United States v. Nader, 542 F.3d 713, 717–18 (9th Cir. 2008) (‘‘A prepositional phrase with an adverbial or adjectival function should be as close as possible to the word it modifies to avoid awkwardness, ambiguity, or unintended meanings.’’) (quoting The Chicago Manual of Style ¶ 5.167 (15th ed. 2003)).

1084

965 FEDERAL REPORTER, 3d SERIES

‘‘request’’ does not change this analysis since it must be read alike with ‘‘motion.’’ See Freeman v. Quicken Loans, Inc., 566 U.S. 624, 634–35, 132 S.Ct. 2034, 182 L.Ed.2d 955 (2012) (applying the ‘‘commonsense canon’’ that ‘‘a word is given more precise content by the neighboring words with which it is associated’’). In this context, these two terms refer to procedural actions such as a ‘‘production request’’ or a ‘‘motion to discover evidence,’’ not substantive requests for relief.12
We’re also not to read ‘‘motion or request’’ in a vacuum. The provision refers to motions and requests ‘‘[made] pursuant to any other statute or rule TTT to discover, obtain, or suppress evidence or information.’’ § 1806(f). This context makes clear that that the provision covers only procedural motions or requests, not plaintiffs’ substantive claims for relief. It likewise confirms that the clause is not an independent grant of authority, but relies on other statutes and rules—which would remain subject to evidentiary privileges.
In treating plaintiffs’ complaint as a request sufficient to trigger § 1806(f), the court reads too much into the word ‘‘obtain,’’ which must be read in the context of ‘‘the company it keeps.’’ Gustafson v. Alloyd Co., 513 U.S. 561, 575, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995). Here, ‘‘obtain’’ is spliced between ‘‘discover’’ and ‘‘suppress,’’ both of which are procedural, evidentiary actions having nothing to do with substantive claims or injunctive relief. Accordingly, ‘‘obtain’’ is similarly limited to pretrial actions aimed at evaluating the admissibili-

ty of evidence. See, e.g., Fed. R. Civ. P. 26(b)(1) (‘‘Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case[.]’’).
FISA’s structure also confirms the clause’s limitation to pretrial motions relating to the admissibility of evidence. All of the other triggering mechanisms of § 1806(f)—subsections (c), (d), and (e)—are pretrial, procedural actions to secure a ruling on the admissibility of evidence. This clause must be read in a similar light to avoid ‘‘giving unintended breadth to the Acts of Congress.’’ Yates v. United States, 574 U.S. 528, 135 S. Ct. 1074, 1085, 191 L.Ed.2d 64 (2015). It would be odd for Congress to ambiguously bury a substantive right for plaintiffs to ‘‘obtain’’ national security secrets in the muddled language of § 1806(f). We know that this can’t be the case because Congress does not ‘‘hide elephants in mouseholes.’’ Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001).
Additionally, FISA does not recognize injunctive relief. ACLU Found. of S. California v. Barr, 952 F.2d 457, 470 (D.C. Cir. 1991) (‘‘Not only does § 1806(f) not create or recognize a cause of action for an injunction or for a declaratory judgment, but the scheme it sets up makes clear that nothing in FISA can be read to create such a cause of action.’’). It can’t be the case that § 1806(f) is triggered by a request for substantive relief that FISA itself does not contemplate.13

12. Seemingly whenever the phrase ‘‘motion or request’’ appears it refers to a procedural action. See, e.g., 17 U.S.C. § 803(b)(6)(C)(v) (‘‘motion or request to compel production’’); Fed. R. Crim. P. 29, Advisory Comm. Notes to 2005 amendments (‘‘motion or request’’ for an extension of time); Charles A. Wright et al., Federal Practice and Procedure: Criminal § 261 (4th ed. 2020 Update) (Rule 12(c) au-

thorizes time for ‘‘making of pre-trial motions or requests’’).
13. The concurrence makes much ado over § 1810, which authorizes a cause of action for FISA violations. But the fact that the privilege ‘‘could’’ lead to a dismissal of a § 1810 suit, Concurrence at 1070–71, is largely irrelevant. The same is true of any other cause of action. And just because claims could be dismissed

PIERCE v. DUCEY
Cite as 965 F.3d 1085 (9th Cir. 2020)

1085

Finally, this clause must be read in context of FISA’s single remedy after § 1806(f) review—the ‘‘suppress[ion of] the evidence’’ or ‘‘otherwise grant[ing] the motion of the aggrieved person.’’ § 1806(g) (emphasis added). Thus, these motions and requests, however styled, all lead down the same road—suppression of evidence, or relief in aid of that remedy. Cf. James v. United States, 550 U.S. 192, 218, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (Scalia, J., dissenting) (recognizing that ‘‘ ‘otherwise’ is defined as ‘[i]n a different manner’ or ‘in another way,’ ’’ so the use of the word signals other ways of doing something of the same character as what preceded it). As the heading of this provision confirms, the district court’s review can result in either ‘‘[s]uppression of evidence’’ or ‘‘denial of motion.’’ § 1806(g) (heading). Thus, whether they’re to ‘‘discover, obtain, or suppress,’’ these motions and requests only relate to the ultimate determination of the admissibility of evidence. Here, plaintiffs have neither a ‘‘motion to suppress,’’ nor any other motion to ‘‘otherwise grant,’’ should the district court rule in their favor after the § 1806(f) review. Accordingly, try as it might, the court can’t jam a square peg into a round hole. Section 1806(f) doesn’t apply here.
IV.
The court’s decision today seriously degrades the Executive’s ability to protect our Nation’s secrets and I fear it is only a stepping stone to further erosions. By abrogating the state secrets privilege, we not only upset the balance of power among coequal branches of government, but we also do damage to a right inherent in the constitutional design and acknowledged since

our Nation’s founding. And we do so without clear evidence that this is the result Congress sought. For these reasons, I respectfully dissent from the denial of rehearing en banc.
,
Michael PIERCE, Plaintiff-Appellee,
v.
Douglas A. DUCEY, in his capacity as Governor of the State of Arizona, Defendant-Appellant.
No. 19-17071
United States Court of Appeals, Ninth Circuit.
Submitted July 10, 2020 * Seattle, Washington
Filed July 21, 2020 Background: Arizona citizen brought action against Arizona governor seeking declaratory judgment that New Mexico-Arizona Enabling Act required congressional consent to any changes to state constitution affecting investment or distribution of assets in Arizona’s land trust for public schools. The United States District Court for the District of Arizona, Neil V. Wake, Senior District Judge, denied governor’s motion to dismiss, 2018 WL 1472048, and entered judgment in plaintiff’s favor, 2019 WL 4750138. Governor appealed. Holdings: The Court of Appeals held that: (1) plaintiff lacked standing to challenge
either past or future changes to formula for distributing assets, and

after a valid privilege assertion doesn’t mean all of them will be. Look no further than this very case: the government did not move to dismiss Plaintiffs’ § 1810 claim based on the privilege and the claim is going forward (and

would’ve gone forward even without the panel’s abrogation of the privilege).
* The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

 
 No.
In the Supreme Court of the United States
FEDERAL BUREAU OF INVESTIGATION, ET AL.,
PETITIONERS
v.
YASSIR FAZAGA, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
JEFFREY B. WALL Acting Solicitor General Counsel of Record
JEFFREY BOSSERT CLARK Acting Assistant Attorney General
EDWIN S. KNEEDLER Deputy Solicitor General
SOPAN JOSHI Senior Counsel to the Assistant Attorney General
JONATHAN Y. ELLIS Assistant to the Solicitor General
SHARON SWINGLE JOSEPH F. BUSA
Attorneys Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217

QUESTION PRESENTED
Section 1806 of the Foreign Intelligence Surveillance Act of 1978 (FISA), 50 U.S.C. 1801 et seq., governs the “[u]se of information” obtained or derived from electronic surveillance for foreign-intelligence purposes under FISA. 50 U.S.C. 1806. Section 1806(c) and (d) require the federal or a state government to provide notice to an aggrieved person whenever it intends to introduce such information as evidence in any proceedings against that person. Section 1806(e) affords the aggrieved person the opportunity to move to suppress any such information that was not obtained in compliance with FISA. And Section 1806(f ) establishes special in camera and ex parte procedures to determine the admissibility of such evidence, if the Attorney General attests that a typical adversarial hearing would harm the national security of the United States. The question presented is as follows:
Whether Section 1806(f ) displaces the state-secrets privilege and authorizes a district court to resolve, in camera and ex parte, the merits of a lawsuit challenging the lawfulness of government surveillance by considering the privileged evidence.
(I)

PARTIES TO THE PROCEEDING
Petitioners are the United States of America, the Federal Bureau of Investigation (FBI); Christopher A. Wray, in his official capacity as the Director of the FBI; and Kristi K. Johnson, in her official capacity as the Assistant Director of the FBI’s Los Angeles Division, each of whom is a defendant in the district court.
Respondents are Yassir Fazaga, Ali Uddin Malik, and Yasser Abdelrahim, each of whom is a plaintiff in the district court; as well as Paul Allen, Kevin Armstrong, Pat Rose, J. Stephen Tidwell, and Barbara Walls, each of whom is a defendant in the district court sued in his or her individual capacity.
RELATED PROCEEDINGS
United States District Court (C.D. Cal.): Fazaga v. FBI, No. 11-cv-301 (Aug. 14, 2012)
United States Court of Appeals (9th Cir.): Fazaga v. FBI, No. 12-56867 (July 20, 2020)
(II)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1 Jurisdiction .................................................................................... 2 Statutory provisions involved...................................................... 2 Statement ...................................................................................... 2
A. Legal background ............................................................. 2 B. The present controversy................................................... 7 Reasons for granting the petition ............................................. 14 A. The court of appeals’ decision is incorrect.................... 16 B. The court of appeals’ decision warrants further
review ............................................................................... 30 Conclusion ................................................................................... 34 Appendix A — Court of appeals order and amended
opinion (Feb. 28, 2019) ............................... 1a Appendix B — District court order granting defendants’
motion to dismiss based on the state secrets privilege (Aug. 14, 2012) ........... 136a Appendix C — District court order granting in part defendants’ motion to dismiss plaintiffs’ FISA claim (Aug. 14, 2012) ................... 181a Appendix D — Statutory provisions................................... 196a

TABLE OF AUTHORITIES

Cases:
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) .......................... 9
Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) .................................................................................... 32
Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103 (1948) .................................................. 28
Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) .... 32, 33 Department of the Navy v. Egan, 484 U.S. 518
(1988) .............................................................................. 28, 29

(III)

IV

Cases—Continued:

Page

FNU Tanzin v. Tanvir, 140 S. Ct. 550 (2019) .................... 32 Fitzgerald v. Penthouse Int’l, Ltd., 776 F.2d 1236
(4th Cir. 1985)...................................................................... 23 Franchise Tax Bd. v. Hyatt, 139 S. Ct. 1485 (2019) .......... 28 General Dynamics Corp. v. United States,
563 U.S. 478 (2011).................................................. 2, 3, 4, 31 Gustafson v. Alloyd Co., 513 U.S. 561 (1995)...................... 21 Halkin v. Helms, 598 F.2d 1 (D.C. Cir. 1978) .................... 28 Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070
(9th Cir. 2010), cert. denied, 563 U.S. 1002 (2011)....... 4, 19 Nielsen v. Preap, 138 S. Ct. 1279 (2018) ............................. 32 Public Citizen v. United States Dep’t of Justice,
491 U.S. 440 (1989).............................................................. 29 Sterling v. Tenet, 416 F.3d 338 (4th Cir. 2005),
cert. denied, 546 U.S. 1093 (2006) ..................................... 32 Tenet v. Doe, 544 U.S. 1 (2005) ............................................. 30 Totten v. United States, 92 U.S. 105 (1876) .................... 2, 28 Trump v. Hawaii, 138 S. Ct. 2392 (2018)............................ 32 United States v. Belfield, 692 F.2d 141
(D.C. Cir. 1982) ................................................................... 24 United States v. Burr, 25 F. Cas. 187 (C.C.D. Va.
1807) ....................................................................................... 2 United States v. Nixon, 418 U.S. 683 (1974)................... 3, 28 United States v. Reynolds, 345 U.S. 1 (1953) ..... 3, 15, 24, 28 United States v. Texas, 507 U.S. 529 (1993) ....................... 28 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) ........ 32

Constitution, statutes, and regulation:

U.S. Const.: Art. II ............................................................................... 13

V
Constitution, statutes, and regulation—Continued: Page
Amend I: Establishment Clause ................................................. 8 Free Exercise Clause.................................................. 8
Amend. IV .......................................................................... 8 Amend. V (Due Process Clause) ...................................... 8 Federal Tort Claims Act, 28 U.S.C. 1346(b), 2671 et seq. ...................................................................................... 8 Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. 1801 et seq................................................... 4, 196a 50 U.S.C. 1801(f )(4) .............................................4, 201a 50 U.S.C. 1801(g) ................................................. 23, 201a 50 U.S.C. 1801(h) ................................................... 5, 201a 50 U.S.C. 1803(a).............................................................. 4 50 U.S.C. 1804(a).............................................................. 4 50 U.S.C. 1805 .................................................................. 4 50 U.S.C. 1805(a)(2) ......................................................... 5 50 U.S.C. 1805(a)(3) ......................................................... 5 50 U.S.C. 1805(c)(2)(A) .................................................... 5 50 U.S.C. 1806 .................................5, 16, 17, 20, 22, 204a 50 U.S.C. 1806(a)-(e)............................................ 17, 204a 50 U.S.C. 1806(c)...............................5, 6, 10, 18, 20, 205a 50 U.S.C. 1806(d) ........................................6, 10, 20, 206a 50 U.S.C. 1806(e).............................................. 6, 20, 206a 50 U.S.C. 1806(f ) ..........................................passim, 207a 50 U.S.C. 1806(g) ........................................7, 17, 21, 207a 50 U.S.C. 1809(a).................................................... 5, 210a 50 U.S.C. 1809(a)(1) ............................................... 4, 210a 50 U.S.C. 1810 ...............................5, 8, 9, 10, 21, 26, 212a 50 U.S.C. 1812(a)............................................................ 26 Privacy Act, 5 U.S.C. 552a...................................................... 8

VI

Statute and regulations—Continued:

Page

Religious Freedom Restoration Act of 1993, 42 U.S.C. 2000bb et seq. ....................................................... 8
Exec. Order No. 13,526, 3 C.F.R. 298 (2009 Comp.): § 1.1(d), 3 C.F.R. 298....................................................... 33 § 6.1(s), 3 C.F.R. 323 ....................................................... 33

Miscellaneous:

H.R. Rep. No. 1283, 95th Cong., 2d Sess. Pt. 1 (1978)....... 21 Intelligence Activities and the Rights of Americans:
Book II, S. Rep. No. 755, 94th Cong., 2d Sess. (1976) .................................................................................... 26 Stephen M. Shapiro et al., Supreme Court Practice (10th ed. 2013) ..................................................................... 32 S. Rep. No. 604, 95th Cong., 1st Sess. (1977)...................... 21 S. Rep. No. 701, 95th Cong., 2d Sess. (1978)........... 20, 25, 26

In the Supreme Court of the United States
No. FEDERAL BUREAU OF INVESTIGATION, ET AL.,
PETITIONERS
v. YASSIR FAZAGA, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
The Acting Solicitor General, on behalf of the federal parties, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case.1
OPINIONS BELOW
The amended panel opinion of the court of appeals (App., infra, 5a-98a), the order denying rehearing en banc (App., infra, 3a), and opinions regarding the denial of rehearing en banc (App., infra, 98a-135a) are reported at 965 F.3d 1015. The opinion of the district court (App., infra, 136a-180a) is reported at 884 F. Supp. 2d 1022. A related opinion of the district court (App., infra, 181a-195a) is reported at 885 F. Supp. 2d 978.
1 This petition is filed on behalf of the official-capacity and agency defendants. The individual-capacity defendants are separately represented by private counsel at governmental expense.
(1)

2
JURISDICTION
The judgment of the court of appeals was entered on February 28, 2019. A petition for rehearing was denied and an amended panel opinion was issued on July 20, 2020 (App., infra, 1a-135a). On March 19, 2020, this Court extended the time within which to file all petitions for a writ of certiorari due on or after that date to 150 days from the date of the lower court judgment, which, in this case, is December 17, 2020. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATUTORY PROVISIONS INVOLVED
The pertinent statutory provisions are set forth in the appendix to the petition. App., infra, 196a-212a.
STATEMENT
A. Legal Background
1. The Executive’s power and responsibility to safeguard the national security and to protect state secrets from exposure in litigation have been recognized since the earliest years of the Republic. In the 1807 treason trial of Aaron Burr, Chief Justice Marshall recognized that a court must afford “all proper respect” to the President’s judgment that, in response to a trial subpoena, the public interest required certain documents “be kept secret.” United States v. Burr, 25 F. Cas. 187, 192 (C.C.D. Va. 1807) (No. 14,694). In Totten v. United States, 92 U.S. 105 (1876), this Court held that, “as a general principle,” “public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential,” including state and military secrets. Id. at 107. Most recently, in General Dynamics Corp. v. United States, 563 U.S. 478 (2011), the Court observed that it had long “recognized

3
the sometimes-compelling necessity of governmental secrecy by acknowledging a Government privilege against court-ordered disclosure of state and military secrets.” Id. at 484.
The state-secrets privilege is deeply rooted in both “the law of evidence,” United States v. Reynolds, 345 U.S. 1, 6-7 (1953), and the Executive’s “Art[icle] II duties” to protect “military or diplomatic secrets,” United States v. Nixon, 418 U.S. 683, 710 (1974). Even if a litigant makes a “strong showing of necessity” for discovery or use of information, the privilege applies whenever “there is a reasonable danger that compulsion of the evidence will expose military [or other] matters which, in the interest of national security, should not be divulged.” Reynolds, 345 U.S. at 10-11. And where it applies, the privilege is absolute: “[E]ven the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that [state] secrets are at stake.” Id. at 11.
To invoke the state-secrets privilege, “[t]here must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer.” Reynolds, 345 U.S. at 7-8 (citation omitted). Following a formal claim, “[t]he court itself must determine whether the circumstances are appropriate for the claim of privilege * * * without forcing a disclosure of the very thing the privilege is designed to protect.” Id. at 8. As with any other evidentiary privilege, if the court upholds the government’s claim of state-secrets privilege, the privileged information is entirely removed from the case. See id. at 10-11; General Dynamics, 563 U.S. at 485 (“The privileged information is excluded.”).

4
Sometimes, when the privilege is invoked, the case may proceed without the state secrets. See General Dynamics, 563 U.S. at 485. “[T]he assertion of the privilege will require dismissal,” however, where “litigating the case to a judgment on the merits” even without introducing the privileged evidence “would present an unacceptable risk of disclosing state secrets.” Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1079 (9th Cir. 2010) (en banc), cert. denied, 563 U.S. 1002 (2011). In such a case, where the privilege precludes adjudication of the merits, this Court has recognized that “neither party can obtain judicial relief.” General Dynamics, 563 U.S. at 486.
2. The Foreign Intelligence Surveillance Act of 1978 (FISA or the Act), 50 U.S.C. 1801 et seq., regulates the government’s collection of electronic surveillance for foreign-intelligence purposes.
a. FISA defines “[e]lectronic surveillance” as the acquisition of wire, radio, or other communications within the United States in various contexts. As relevant here, when electronic surveillance is conducted through the “installation or use of an electronic, mechanical, or other surveillance device in the United States” for the purpose of “acquir[ing] information, other than from a wire or radio communication,” where “a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes,” 50 U.S.C. 1801(f )(4), the Act typically requires that, before the government conducts the surveillance, it must obtain an order from the Foreign Intelligence Surveillance Court. 50 U.S.C. 1805, 1809(a)(1); see 50 U.S.C. 1803(a), 1804(a).
To obtain such an order, the government must establish, inter alia, probable cause to believe that the “target of the electronic surveillance” is a foreign power or

5
an agent thereof and that “each of the facilities or places” at which the surveillance is directed is being used, or is about to be used, by a foreign power or its agent. 50 U.S.C. 1805(a)(2). The government must also establish that the “minimization procedures” it will employ are reasonably designed to minimize the acquisition, retention, and dissemination of nonpublic information concerning “United States persons.” 50 U.S.C. 1801(h), 1805(a)(3), and (c)(2)(A).
FISA imposes criminal penalties on any person who intentionally engages in unauthorized electronic surveillance “under color of law” or intentionally “discloses or uses information obtained under color of law” by unauthorized electronic surveillance, “knowing or having reason to know that the information was obtained through” unauthorized electronic surveillance. 50 U.S.C. 1809(a). FISA also provides a private claim for damages to any “aggrieved person, other than a foreign power or [its] agent,” who has been subjected to electronic surveillance, or about whom information obtained by electronic surveillance has been disclosed or used, in violation of the criminal prohibition. 50 U.S.C. 1810.
b. Section 1806 of FISA regulates the government’s “[u]se of information” obtained or derived from electronic surveillance conducted under the Act. 50 U.S.C. 1806. As most relevant here, any person subject to surveillance pursuant to FISA must be afforded notice and an opportunity to be heard before information obtained or derived from that surveillance may be used in any court or agency proceeding against that person.
Section 1806(c) provides that, “[w]henever the Government intends to enter into evidence or otherwise use or disclose in any * * * proceeding * * * , against an aggrieved person, any information obtained or derived

6
from an electronic surveillance of that aggrieved person pursuant to [FISA],” the government must “notify the aggrieved person and the court * * * that the Government intends to so disclose or so use such information.” 50 U.S.C. 1806(c); see 50 U.S.C. 1806(d) (imposing the same notice requirement on States and their political subdivisions ). Section 1806(e) authorizes an aggrieved person “against whom [such] evidence * * * is to be, or has been, introduced or otherwise used or disclosed” to “move to suppress the evidence” on the ground that (1) “the information was unlawfully acquired” or (2) “the surveillance was not made in conformity with an order of authorization or approval.” 50 U.S.C. 1806(e). Section 1806(f ) provides, in turn, a mechanism for in camera and ex parte resolution of the admissibility of such evidence if “the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States.” 50 U.S.C. 1806(f ).
Specifically, Section 1806(f ) authorizes the Attorney General to invoke the in camera and ex parte procedures
[w]henever a court or other authority is notified pursuant to subsection (c) or (d), or whenever a motion is made pursuant to subsection (e), or whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under [FISA].
50 U.S.C. 1806(f  ).

7
When the Attorney General invokes Section 1806(f ), the district court in which the aggrieved person’s motion was filed—or, “where the motion is made before another authority,” the district court “in the same district as the authority”—“shall, notwithstanding any other law, * * * review in camera and ex parte the [FISA] application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.” 50 U.S.C. 1806(f ). Review under Section 1806(f ) proceeds ex parte unless disclosure to the aggrieved person “is necessary to make an accurate determination of the legality of the surveillance,” in which case the court “may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance.” Ibid.
If the district court determines “pursuant to subsection (f )” that “the surveillance was not lawfully authorized or conducted,” it “shall, in accordance with the requirements of law, suppress the evidence which was unlawfully obtained or derived from electronic surveillance of the aggrieved person or otherwise grant the motion of the aggrieved person.” 50 U.S.C. 1806(g). Conversely, “[i]f the court determines that the surveillance was lawfully authorized and conducted, it shall deny the motion * * * except to the extent that due process requires discovery or disclosure.” Ibid.
B. The Present Controversy
1. Respondents are three members of Muslim communities in Southern California. App., infra, 140a. They brought this putative class action in 2011 against the United States, the Federal Bureau of Investigation (FBI), former FBI Director Robert Mueller and former

8
Assistant Director of the FBI Los Angeles Field Office Steven Martinez in their official capacities, and five FBI agents in their individual capacities. Id. at 141a, 146a. Respondents allege that, from 2006 to 2007, the FBI used a confidential informant, Craig Monteilh, to covertly gather information about Muslims in their communities based solely on their religion. Id. at 139a, 142a, 145a.
Respondents allege that the FBI directed Monteilh to engage in various forms of investigation, including non-electronic and electronic surveillance. For example, they allege that Monteilh was directed to “seiz[e] every opportunity to meet people” by “attend[ing] lectures by Muslim scholars,” “attend[ing] classes and dawn prayers at mosques,” and “work[ing] out with Muslims he met at [the] gym.” App., infra, 10a, 144a. They allege that Monteilh gathered personal information, like phone numbers and email addresses, through face-to-face encounters at such gatherings. Id. at 11a-12a, 144a-145a. They also allege that he collected video recordings capturing the interiors of mosques, homes, and businesses, and audio recordings of conversations, lectures, classes, and other events. Ibid. And, finally, respondents allege that FBI agents separately planted audio-listening devices in one respondent’s office and another’s home. Id. at 12a, 34a.
Based on these allegations, respondents assert claims under the Establishment Clause, the Free Exercise Clause, the Fourth Amendment, the equal protection component of the Due Process Clause, the Federal Tort Claims Act (FTCA), Section 1810 of FISA, the Religious Freedom Restoration Act of 1993, the Privacy Act, and California law. App., infra, 147a-148a. They seek dam-

9
ages from the FBI agents sued in their individual capacities under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and Section 1810 of FISA; damages from the government under the FTCA and California law; and an injunction ordering the government “to destroy or return any information gathered” through or derived from unlawful surveillance. App., infra, 58a (citation omitted); see id. at 148a & n.6.
2. Before the district court, the government formally invoked the state-secrets privilege, through a declaration of the Attorney General, over information concerning whether any particular individual, including each of the respondents, was the subject of an FBI counterterrorism investigation, the reasons for any such investigation, and the particular sources and methods used (including any undisclosed electronic surveillance). App., infra, 163a. The government submitted classified declarations explaining in detail why disclosure of that information could reasonably be expected to harm the national security. Id. at 163a-164a.
On August 14, 2012, the district court upheld the privilege and dismissed the claims against the government and the official-capacity federal defendants. App., infra, 136a-180a. The court determined that disclosure of the privileged evidence “would significantly compromise national security.” Id. at 165a. And it concluded that “litigation of this action would certainly require or, at the very least, greatly risk disclosure of secret information, such that dismissal at this stage of the proceeding is required.” Id. at 165a-166a.2
2 The district court also dismissed the claims against the individualcapacity defendants on state-secrets grounds with the exception of

10
3. The court of appeals reversed. App., infra, 1a98a. As relevant here, the court held that “the procedures established under FISA for adjudicating the legality of challenged electronic surveillance replace the common law state secrets privilege with respect to such surveillance to the extent that privilege allows the categorical dismissal of causes of action.” Id. at 37a-38a. Without addressing the district court’s determination that further litigation would require the disclosure of state secrets, the court of appeals held that the district court erred in dismissing respondents’ claims, instead of relying on Section 1806(f ) of FISA as the means to adjudicate respondents’ claims on the merits based on the privileged evidence. See id. at 37a-67a.
The court of appeals determined that Section 1806(f ) was triggered in two ways. First, it construed the Attorney General’s declaration invoking the state-secrets privilege to exclude certain information—including whether there was any undisclosed electronic surveillance —as constituting notice under Section 1806(c) of the government’s intent to use or disclose information obtained or derived from electronic surveillance against respondents’ claims. App., infra, 57a-58a; see 50 U.S.C. 1806(d), (f ) (providing for in camera and ex parte review “[w]henever a court or other authority is notified pursuant to subsection (c) or (d)” of the government’s intent to “enter into evidence or otherwise use or disclose” the information in a legal proceeding). Second, the court concluded that a prayer for relief in respondents’ complaint—for an order requiring the destruction or return of information gathered in the alleged investigations—constituted a “motion or request * * * to
respondents’ claims for damages under FISA Section 1810. App., infra, 178a-180a, 195a.

11
discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance” under FISA. App., infra, 57a (quoting 50 U.S.C. 1806(f )); see id. at 58a.
The court of appeals further held that, when the Section 1806(f ) procedure applies, it “displace[s] the common law dismissal remedy created by the Reynolds state secrets privilege as applied to electronic surveillance within FISA’s purview.” App., infra, 47a; see id. at 46a55a. The court reasoned that “[t]he state secrets privilege may have a constitutional core or constitutional overtones, but, at bottom, it is an evidentiary rule rooted in common law” that can be abrogated by any statute that “speak[s] directly to the question addressed by the common law.” Id. at 47a, 48a-49a (citations and internal quotation marks omitted). The court concluded that the text of FISA and its legislative history indicated that Congress intended to make Section 1806(f )’s in camera and ex parte procedure “the exclusive procedure for evaluating evidence that threatens national security in the context of electronic surveillance-related determinations.” Id. at 50a; see id. at 49a-55a.
The court of appeals accordingly reversed the district court’s dismissal based on the Attorney General’s assertion of the state-secrets privilege and remanded for further proceedings. App., infra, 92a-98a. The court instructed that, on remand, to the extent plaintiffs are “aggrieved persons” within the meaning of FISA, the district court “should, using § 1806(f )’s ex parte and in camera procedures, review any ‘materials relating to the surveillance as may be necessary,’ including the evidence over which the Attorney General asserted the state secrets privilege, to determine whether the elec-

12
tronic surveillance was lawfully authorized and conducted.” Id. at 92a-93a (citation omitted). “As permitted by Congress,” the court continued, “ ‘[i]n making this determination, the court may disclose to [respondents] * * * portions of the application, order or other materials relating to the surveillance’ ” if “ ‘necessary to make an accurate determination.’ ” Id. at 93a (quoting 50 U.S.C. 1806(f )) (first set of brackets in original).
The court of appeals further held that, once the district court used the Section 1806(f ) procedures to determine the lawfulness of the electronic surveillance in resolving the merits of respondents’ claims, “it c[an] rely on its assessment of the same evidence * * * to determine the lawfulness of the surveillance falling outside FISA’s purview.” App., infra, 95a. The court reasoned that “[i]t would stretch the privilege beyond its purpose to require the district court to consider the state secrets evidence in camera and ex parte for one claim, but then, when considering another claim, ignore the evidence and dismiss the claim.” Ibid. The court of appeals stated that, if its “prediction of the overlap between the information to be reviewed * * * to determine the validity of FISA-covered electronic surveillance and the information pertinent to other aspects” of the claims turned out to be inaccurate, the government would be “free to interpose a specifically tailored, properly raised state secrets privilege defense.” Ibid.
4. The court of appeals denied rehearing en banc by a deeply divided vote. App., infra, 3a.
a. Judges Gould and Berzon, both members of the original panel, concurred in the denial of rehearing en banc, joined by three other judges. App., infra, 98a108a. In their joint concurrence, Judges Gould and Berzon reiterated the reasoning of the panel opinion, and

13
stated that, in their view, the panel decision deprives the government “only” of the dismissal remedy “that sometimes follows the successful invocation of the statesecrets evidentiary privilege,” not the state-secrets privilege itself. Id. at 102a. In a footnote, they stated that if a district court, in following the Section 1806(f ) procedures, were to order the disclosure of state secrets to opposing counsel under that provision to facilitate the court’s adjudication of the merits of respondents’ claims, “nothing in the panel opinion prevents the government from invoking the state secrets privilege’s dismissal remedy as a backstop at that juncture.” Id. at 100a n.1.
Senior District Judge Steeh, the third member of the panel, filed a brief statement respecting the denial of rehearing en banc, “agree[ing] with the views expressed by Judges Berzon and Gould in their concurrence.” App., infra, 108a.
b. Judge Bumatay, joined by nine other judges, dissented from the denial of rehearing en banc. App., infra, 109a-135a. Judge Bumatay observed that the Executive’s authority “to prevent the disclosure of information that would jeopardize national security” has been recognized “[f ]rom the earliest days of our Nation’s history.” Id. at 108a. He explained that this authority “lies at the core of the executive power” vested in the President by Article II and in the “President’s authority as Commander in Chief.” Ibid. And he noted that, when this Court “confronts a legislative enactment implicating [such] constitutional concerns,” “it has commonly required a clear statement from Congress before plowing ahead * * * out of a due respect for those constitutional concerns.” Id. at 110a. In his view, Section 1806(f ) “fall[s] pitifully short of th[at] standard.” Id. at 121a.

14
Judge Bumatay explained that, on its face, Section 1806(f ) does not apply in these circumstances and does not displace the state-secrets privilege. Instead, Section 1806(f ) provides procedures to determine the limited issue of the admissibility of electronic-surveillance evidence when the government seeks to use such evidence against an aggrieved person in litigation. App., infra, 108a, 127a-134a. He explained that, contrary to the panel’s opinion, the government’s invocation of the state-secrets privilege to remove evidence from the case did not trigger Section 1806(f )’s procedures because it did not provide notice of an intent to use that evidence against respondents. Id. at 128a-130a. He likewise concluded that respondents’ prayer for relief to destroy or return any information obtained or derived from government surveillance did not qualify as a motion or request “ ‘to discover, obtain, or suppress evidence or information’ ” that would trigger Section 1806(f ), reasoning that that language applies only to motions to suppress or other similar procedural requests, not “substantive requests for relief.” Id. at 132a (citation omitted); see id. at 131a-134a.
REASONS FOR GRANTING THE PETITION
This case raises exceptionally important questions concerning the Executive Branch’s responsibility under the Constitution to protect the national security of the United States. The court of appeals’ decision has the startling consequence of transforming a limited provision of FISA that was designed to safeguard nationalsecurity information into a mechanism for overriding the Executive’s invocation of the state-secrets privilege and for adjudicating the merits of private-party claims for substantive relief on the basis of state secrets. The court of appeals’ decision conflicts with this Court’s

15
clear admonition that courts should not endanger national security by allowing state secrets to be used in litigation, “even by the judge alone, in chambers.” United States v. Reynolds, 345 U.S. 1, 10 (1953). It is deeply misguided and warrants this Court’s review.
As the ten judges who dissented from the denial of rehearing en banc correctly recognized, Section 1806(f ) of FISA creates a limited, government-protective procedure for resolving questions of admissibility or suppression when the government affirmatively seeks in litigation to use electronic-surveillance evidence against a person who was subject to the surveillance. It does not create a freestanding in camera and ex parte mechanism for resolving the merits of a case brought against the government or its officers on the basis of evidence that the government seeks, on state-secrets grounds, to exclude—much less for resolution of the lawfulness of non-electronic surveillance. Nor, even more fundamentally, does Section 1806(f ) silently displace the longstanding and constitutionally rooted state-secrets privilege, which enables the Executive to fulfill its constitutional duty to protect national-security information.
The Ninth Circuit’s decision to the contrary poses a substantial risk that state secrets will be disclosed on remand in this case. And it has already formed the basis for requests by inventive litigants in other pending cases brought against the government to “dodge the state secrets privilege” by invoking Section 1806(f ). App., infra, 111a (Bumatay, J., dissenting from denial of rehearing en banc). If left undisturbed, the panel’s opinion threatens to leave the government “powerless to prevent the disclosure of state secrets” in defending itself against such claims. Ibid. And “[m]ost alarming[ly],” it could “lead to the disclosure of state secrets

16
to the very subjects of the foreign-intelligence surveillance.” Id. at 110a. Before such results are permitted, this Court’s review is warranted.
A. The Court Of Appeals’ Decision Is Incorrect
The court of appeals held that the in camera, ex parte procedures under Section 1806(f ) may be triggered whenever the government invokes the statesecrets privilege to exclude evidence that was allegedly obtained by or derived from electronic surveillance or whenever a plaintiff files suit challenging the legality of alleged electronic surveillance and requests an order to destroy or return information gathered through such surveillance. App., infra, 57a-58a. The court further held that, where Section 1806(f ) applies, it permits the district court to adjudicate the merits of substantive claims for relief by considering the very evidence over which the government asserted the privilege. Id. at 47a. Both holdings are incorrect and warrant this Court’s review.
1. a. Section 1806, titled “Use of information,” regulates how the government may use or disclose evidence obtained or derived from electronic surveillance conducted under FISA. 50 U.S.C. 1806. Subsection (a) requires that such information “may be used” only in compliance with privacy-protective minimization procedures; subsection (b) provides that such information “may only be used” with the advance authorization of the Attorney General; subsections (c) and (d) require that, if a government entity seeks to “use or disclose” such information “against an aggrieved person” in a legal proceeding, the government must “notify the aggrieved person”; and subsection (e) provides that an aggrieved person against whom the electronic-surveillance information is to be “used or disclosed” may “move to

17
suppress” the information “on the ground[ ] that” it was “unlawfully acquired.” 50 U.S.C. 1806(a)-(e). The provision at issue here is subsection (f ).
In keeping with the rest of Section 1806, subsection (f ) creates a procedure for determining whether the government can introduce evidence obtained or derived from electronic surveillance against an aggrieved person, or whether such evidence must be suppressed, in circumstances when a typical adversarial hearing on the question of such use by the government would “harm the national security.” 50 U.S.C. 1806(f ). When the Attorney General attests to such harm, a district court reviews the underlying FISA application, order, and related materials in camera and ex parte to determine “the legality of the surveillance,” and may disclose the relevant materials to the aggrieved person only where “necessary to make an accurate determination.” Ibid. If the court “determines that the surveillance was not lawfully authorized or conducted, it shall * * * suppress the evidence [that] was unlawfully obtained or derived from electronic surveillance of the aggrieved person or otherwise grant the motion.” 50 U.S.C. 1806(g). Conversely, “[i]f the court determines that the surveillance was lawfully authorized and conducted, it shall deny the motion * * * except to the extent that due process requires discovery or disclosure.” Ibid.
By its terms, Section 1806(f )’s procedures are available only in three circumstances: first, when the government provides notice under subsections (c) and (d) of its intent to “use or disclose” electronic-surveillance evidence against an aggrieved person in a legal proceeding; second, when an aggrieved person against whom electronic-surveillance evidence has been, or is to be, used or disclosed files a motion to suppress under

18
subsection (e); or, third, “whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States” to “discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under [FISA].” 50 U.S.C. 1806(f ). Because the government has no intention of using or disclosing any FISA-obtained or FISA-derived evidence in this case and respondents have not filed any motion to suppress or similar procedural motion in an effort to preclude such (non-existent) use or disclosure of any FISA-obtained or FISA-derived evidence, Section 1806(f ) does not apply.
b. The court of appeals concluded that Section 1806(f ) provides the exclusive procedure for resolving respondents’ claims on the merits and permits the court to rely on such evidence, notwithstanding the Attorney General’s invocation of the state-secrets privilege. The court reasoned that the first and third grounds for invoking those procedures are satisfied here. Both conclusions are incorrect.
i. As to the first ground, the court of appeals concluded that the government’s assertion of the statesecrets privilege with respect to certain categories of information in this case constituted notice under Section 1806(c) of the government’s intent “to enter into evidence or otherwise use or disclose” FISA-obtained or FISA-derived information against respondents in this lawsuit, 50 U.S.C. 1806(c). See App., infra, 57a-58a. The court reasoned that it was “because the Government would like to use this information to defend itself that it * * * asserted the state secrets privilege.” Id. at 57a. That reasoning is misguided.

19
The government invoked the state-secrets privilege for the same reason that any party asserts any evidentiary privilege: to prevent the introduction or disclosure of the privileged information. As the declaration of the Attorney General explained, disclosure of the privileged information—including whether or not there was any electronic surveillance—“could reasonably be expected to cause significant harm to the national security.” Holder Declaration, D. Ct. Doc. 32-3, at 2 (Aug. 1, 2011). The government sought to avoid that result by precluding its use. By the panel’s reasoning, a litigant who asserts the attorney-client privilege signals his intent to use or disclose private communications with counsel, or a husband who asserts the marital-communications privilege signals his intent to use or disclose private conversations with his spouse. But, of course, they do nothing of the sort. “Such upside-down logic should not stand.” App., infra, 128a (Bumatay, J., dissenting from denial of rehearing en banc).
To be sure, invoking the state-secrets privilege to remove evidence from a case may in some circumstances result in dismissal of the plaintiff ’s claims, see Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1083 (9th Cir. 2010) (en banc), cert. denied, 563 U.S. 1002 (2011), but that potential outcome does not convert the invocation of the privilege into an attempt to introduce the privileged evidence that would trigger FISA’s in camera procedures.
ii. As to the third ground for invoking Section 1806(f ), the court of appeals concluded that respondents’ substantive prayer for relief in their complaint for an injunction requiring the government to “destroy or return any information gathered through the [allegedly] unlawful surveillance program” constituted a “motion

20
or request * * * made by an aggrieved person * * * to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance” under FISA. App., infra, 58a; 50 U.S.C. 1806(f ). But in the context of Section 1806 and the Act as a whole, that conclusion too is implausible.
The rest of Section 1806 and its title make clear that Section 1806 concerns the government’s use or disclosure of FISA-obtained and FISA-derived evidence. The immediately preceding subsections demonstrate that subsection (f ), in particular, concerns the government’s attempt to use or disclose such evidence against an aggrieved person in a legal proceeding. And the three grounds for invoking Section 1806(f ) each fit comfortably within that framework. The first ground applies whenever the government provides notice under Section 1806(c) or (d) of its intent to “use or disclose” FISA-obtained or FISA-derived material against the aggrieved person. 50 U.S.C. 1806(c) and (d); see 50 U.S.C. 1806(f ). The second ground applies when the aggrieved person invokes Section 1806(e) to “suppress” such material. 50 U.S.C. 1806(e); see 50 U.S.C. 1806(f ). And the third ground serves as a backstop to the first two, ensuring that an aggrieved person cannot prevent the Attorney General from invoking Section 1806(f )’s in camera, ex parte procedures by seeking to suppress evidence or obtain discovery of FISA materials by invoking “any other statute or rule of the United States or any State.” 50 U.S.C. 1806(f ) (emphasis added). As the Senate Report explains, the third ground prevents the “carefully drawn” procedures of Section 1806(f ) “from being bypassed by the inventive litigant using a new statute, rule or judicial construction.” S. Rep. No. 701, 95th Cong., 2d Sess. 63 (1978) (1978 Senate Report); see

21
H.R. Rep. No. 1283, 95th Cong., 2d. Sess. Pt. 1, at 91 (1978); S. Rep. No. 604, 95th Cong., 1st Sess. 40 (1977).
Against that backdrop, respondents’ prayer for relief on the merits cannot be understood as a “request” to “discover, obtain, or suppress” FISA-obtained or FISA-derived information that would trigger the Section 1806(f ) process. 50 U.S.C. 1806(f ); see App., infra, 58a. A word or phrase in a statute “is known by the company it keeps.” Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995). Even if a civil complaint’s prayer for final judgment and substantive relief might be colloquially described as a “request,” it is nothing like the sort of procedural motion to which Section 1806(f ) is directed. Nor would awarding such relief on final judgment plausibly be described as granting the “[s]uppression of evidence” or other “motion of the aggrieved person”—the only relief that a district-court proceeding under Section 1806(f ) can afford. 50 U.S.C. 1806(g).
Contrary to the court of appeals’ assertion, the existence in Section 1810 of a private cause of action for specified violations of FISA does not suggest a broader reading. The court reasoned that “[i]t would make no sense” to provide procedures for reviewing nationalsecurity evidence “but not intend for those very procedures to be used” under Section 1810. App., infra, 61a. Section 1806(f ) may well apply to a covered procedural motion in such a case. But for the reasons described above, Section 1806(f ) can no more be read to authorize in camera and ex parte resolution of the merits of a Section 1810 claim, than it can be read to authorize resolving any other substantive claim. The court provided no basis for its contrary conclusion, other than its bare assertion.

22
In short, by holding that Section 1806(f ) provides a vehicle for in camera, ex parte resolution not simply of the admissibility of FISA-obtained or FISA-derived evidence, but of the merits of respondents’ civil claims challenging electronic and non-electronic surveillance, the decision below “jam[s] a square peg into a round hole.” App., infra, 134a (Bumatay, J., dissenting from denial of rehearing en banc).
2. The court of appeals significantly compounded its error by further holding that Section 1806(f )’s procedures preclude the government from invoking the statesecrets privilege to remove any sensitive nationalsecurity information from a case in which Section 1806(f ) applies. The court reasoned that, in enacting Section 1806(f ), Congress “ ‘ “sp[oke] directly” to the question addressed by the [privilege]’ ” and that, because the privilege “is an evidentiary rule rooted in common law, not constitutional law,” that was sufficient to displace “the common law dismissal remedy created by the Reynolds state secrets privilege as applied to electronic surveillance within FISA’s purview.” App., infra, 47a, 48a-49a (citation omitted). Once again, the court was wrong on both counts.
a. Nothing in Section 1806(f ) speaks—directly or indirectly—to displacing the state-secrets privilege or the government’s ability to protect the national security by removing state secrets from a case. The privilege is not mentioned in the text of that provision or anywhere in Section 1806. Nor have the court of appeals or plaintiffs identified anything in FISA’s legislative history suggesting that Congress intended to displace the privilege. And nothing in the operation of Section 1806(f ) is incompatible with the continued vitality of the privilege.

23
The court of appeals observed that Section 1806(f ) and the state-secrets privilege are both “animated by * * * threats to national security,” and it described Section 1806(f ) as, “ ‘in effect, a “codification of the state secrets privilege for purposes of relevant cases under the FISA.” ’ ” App., infra, 51a (citation omitted). But the two measures have different scopes; they apply in different circumstances; they are invoked by different officials; and they address national-security concerns in diametrically opposite ways.
Section 1806(f ) applies when the government seeks to “use or disclose” electronic-surveillance information against an aggrieved person in legal proceedings, typically a criminal case. It provides a mechanism for adjudicating whether that information may be introduced into evidence or must be suppressed. In keeping with the focus on the government’s position in litigation, the Attorney General (or his delegee)—the official primarily responsible for government litigation—triggers those statutory procedures. 50 U.S.C. 1801(g), 1806(f ). If the government prevails under Section 1806(f )’s procedures, the government may introduce the evidence into the proceeding.
By invoking the state-secrets privilege, by contrast, the government seeks to remove information from a case to protect the national security from harms that could result from its use or disclosure. The privilege is invoked most often where the government is a defendant, but also may apply in a case in which the government is not even a party. See, e.g., Fitzgerald v. Penthouse Int’l, Ltd., 776 F.2d 1236 (4th Cir. 1985). In keeping with that broader focus, the state-secrets privilege is invoked by the “head of the department” responsible for the national-security information (not necessarily

24
the Attorney General), who must “personal[ly]” (not through a delegee) make a privilege claim. See Reynolds, 345 U.S. at 7-8. It generally forecloses even in camera consideration. See id. at 10 (“[T]he court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.”). And if the privilege is upheld, the privileged information may not be introduced or relied upon in the case by anyone.
In light of those differences, there is no reasonable basis to conclude that, by providing a means for the government to introduce FISA-obtained or FISA-derived evidence in a legal proceeding, Congress implicitly intended to prevent the government from excluding privileged evidence for national-security purposes. Indeed, even before FISA was enacted, courts used in camera procedures to determine the legality of foreignintelligence surveillance in appropriate circumstances for purposes of determining whether evidence resulting from such surveillance could be used by the government. See United States v. Belfield, 692 F.2d 141, 149 (D.C. Cir. 1982) (“In this circuit and in others, it has constantly been held [pre-FISA] that the legality of electronic, foreign intelligence surveillance may, even should, be determined on an in camera, ex parte basis.”). If Congress effectively codified anything in Section 1806(f ), it was that pre-FISA practice. “Given that ex parte, in camera review procedures coexisted with the state secrets privilege before FISA, there’s no reason to construe Congress’s codification of such procedures as an intent to eliminate the privilege.” App., infra, 124a (Bumatay, J., dissenting from denial of rehearing en banc).

25
The court of appeals emphasized that Section 1806(f ) provides that, “ ‘whenever’ ” one of the triggering conditions is met, the in camera, ex parte procedures “ ‘shall’ ” be used “ ‘notwithstanding any other law.’ ” App., infra, 50a (quoting 50 U.S.C. 1806(f )) (emphasis omitted). But that mandatory language is expressly conditioned on the Attorney General’s invocation of the Section 1806(f ) procedures by sworn affidavit. See 50 U.S.C. 1806(f ) (requiring a district court to conduct in camera review, “notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security”) (emphasis added). It speaks only to the type of review the court must undertake in those circumstances—“in camera and ex parte,” rather than adversarial adjudication in open court. Ibid. Thus, Congress’s use of such language is designed to protect the government’s ability to channel certain motions through Section 1806(f ), regardless of what procedure the aggrieved person attempts to invoke. See pp. 20-21, supra. It was not intended to preclude the government from protecting national security by invoking the state-secrets privilege to prevent the use of the evidence in the case altogether.
The 1978 Senate Report makes that point clear. As that report explains, Congress’s use of broad, mandatory language, like “ ‘notwithstanding any other law,’ ” was intended to “make very clear that the procedures set out in [Section 1806(f )] apply whatever the underlying rule or statute referred to in the [aggrieved person’s] motion” to suppress, discover, or obtain FISAobtained or FISA-derived evidence. 1978 Senate Report 63. At the same time, however, the report explains that, even when Section 1806(f ) would otherwise apply,

26
the government may always “prevent[ ]” a court’s “adjudication of legality” by simply “choos[ing]” to “forgo the use of the surveillance-based evidence” and thereby avoid the risk that even Section 1806(f )’s protective procedures “would damage the national security.” Id. at 65.
The court of appeals found support for its contrary reading in unrelated and general statements in FISA’s legislative history about the need to enact “fundamental reform,” in order to provide the “exclusive legal authority for domestic security activities” and a civil remedy to “afford effective redress to people who are injured by improper federal intelligence activity.” App., infra, 53a-54a (quoting Intelligence Activities and the Rights of Americans: Book II, S. Rep. No. 755, 94th Cong., 2d Sess. 289, 297, 336 (1976)). But those statements describe nascent proposals for reform several years before FISA was enacted, not actual statutory provisions—much less the provision at issue here. To the extent they are relevant to interpreting the final legislation, they are reflected in FISA’s provisions (1) making the FISA warrant procedures the “exclusive” authority for domestic electronic surveillance for foreignintelligence purposes, 50 U.S.C. 1812(a); see 1978 Senate Report 71 (“This statement puts to rest the notion that Congress recognizes an inherent Presidential power to conduct such surveillances.”); and (2) providing a private cause of action for damages based on criminal violations of FISA’s procedures, see 50 U.S.C. 1810. They have no bearing on the question presented here.
In the end, not even the panel itself appears to have had confidence in any purported congressional intent to displace the state-secrets privilege. In response to the concern that the panel’s opinion might require a district court to disclose sensitive national-security information

27
to the subjects of the government’s surveillance, see App., infra, 125a (Bumatay, J., dissenting from denial of rehearing en banc), two members of the panel announced in their concurrence in denial of rehearing en banc that, if the district court ordered such disclosure pursuant to Section 1806(f ), “nothing in the panel opinion prevents the government from invoking the state secrets privilege’s dismissal remedy as a backstop at that juncture,” id. at 100a n.1 (Gould & Berzon, JJ., concurring in denial of rehearing en banc). The third member of the panel “agree[d].” Id. at 108a (Steeh, J., statement regarding denial of rehearing en banc). But neither opinion explains how Section 1806(f ) could be read to displace the state-secrets privilege, but only so far as disclosure to the aggrieved party is not ordered during the Section 1806(f ) proceedings. Nothing in the text, structure, nor history of FISA supports such a line, and subjecting the national security to such procedures is incompatible with the privilege’s vesting of the responsibility and authority to protect state secrets in the Executive.
b. Finally, if there were any doubt that Congress did not displace the state-secrets privilege, any ambiguity in Section 1806(f ) should be construed in favor of retaining the privilege.
The state-secrets privilege is a longstanding feature of our legal system, deeply rooted in early AngloAmerican law. As Judge Bumatay explained, “[f ]rom the earliest days of our Nation’s history, all three branches of government have recognized that the Executive has authority to prevent the disclosure of information that would jeopardize national security.” App., infra, 108a (dissenting from denial of rehearing en banc); see id. at 113a-119a (canvassing historical sources).

28
This Court’s 1953 opinion in Reynolds traced the history of the privilege in the United States to, among other notable roots, the treason trial of Aaron Burr. 345 U.S. at 6-9 & n.18. By 1978, when FISA was enacted, “it [wa]s quite clear that the privilege to protect state secrets must head the list” of “the various privileges recognized in our courts.” Halkin v. Helms, 598 F.2d 1, 7 (D.C. Cir. 1978). Insofar as the privilege has been recognized as an element—indeed, an essential element— of the common law, this Court has long employed a “presumption favoring retention” of such federal common law. United States v. Texas, 507 U.S. 529, 534 (1993).
The privilege, moreover, is firmly rooted in the Constitution and is critical to the Executive Branch’s ability to fulfill its constitutional duties. “The authority to protect [national-security] information falls on the President as head of the Executive Branch and as Commander in Chief.” Department of the Navy v. Egan, 484 U.S. 518, 527 (1988) (citing Totten v. United States, 92 U.S. 105, 106 (1876)). “The President, both as Commanderin-Chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world.” Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948). Executive privileges, including the statesecrets privilege, that “relate[ ] to the effective discharge of a President’s powers” are thus “constitutionally based.” United States v. Nixon, 418 U.S. 683, 710711 (1974); cf. Franchise Tax Bd. v. Hyatt, 139 S. Ct. 1485, 1498-1499 (2019) (noting that the “executive privilege” is one of the “constitutional doctrines” “implicit in [the Constitution’s] structure and supported by historical practice”).

29
At the very least, the Court should require a much clearer statement from Congress than Section 1806(f ) expresses before it construes a statute to displace the longstanding and constitutionally based state-secrets privilege. See Public Citizen v. United States Dep’t of Justice, 491 U.S. 440, 466 (1989). As this Court has explained, “unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.” Egan, 484 U.S. at 530 (emphasis added). Similarly, as Judge Bumatay observed, “[w]hen [this] Court confronts a legislative enactment implicating constitutional concerns—federalism or separation of powers—it has commonly required a clear statement from Congress before plowing ahead * * * out of a due respect for those constitutional concerns.” App., infra, 110a (dissenting from denial of rehearing en banc). The state-secrets privilege “deserves the same respect.” Ibid.
For the reasons described above, the best reading of Section 1806(f ) is that it has no application to this case and does not displace the government’s ability to invoke the state-secrets privilege to protect the national security. At a minimum, there exists no clear statement in Section 1806(f ), or anywhere else in FISA, that Congress intended to bring about such a startling change in the Executive’s authority to protect national-security information from compelled disclosure in litigation. The court of appeals thus erred in “discovering abrogation of the state secrets privilege more than 40 years after FISA’s enactment” and “disrupt[ing] the balance of powers among Congress, the Executive, and the Judiciary.” App., infra, 110a (Bumatay, J., dissenting from denial of rehearing en banc).

30
B. The Court Of Appeals’ Decision Warrants Further
Review
1. The court of appeals’ holding that Section 1806(f ) displaces the state-secrets privilege, and its transformation of Section 1806(f )’s protections for the government’s use of electronic surveillance into an avenue for facilitating claims against the government, raise exceptionally important questions for this Court’s review. As the ten judges dissenting from denial of rehearing en banc recognized, the panel’s holding “seriously degrades the Executive’s ability to protect our Nation’s secrets” in this and future cases. App., infra, 134a (Bumatay, J., dissenting from denial of rehearing en banc). It creates the dangerous prospect that, “[m]oving forward, litigants can dodge the state secrets privilege simply by invoking ‘electronic surveillance’ somewhere within the Ninth Circuit.” Id. at 111a. It accordingly presents a serious risk of depriving the government of a vital tool “to prevent the disclosure of state secrets.” Ibid.; see Tenet v. Doe, 544 U.S. 1, 11 (2005) (“Forcing the Government to litigate these claims would also make it vulnerable to ‘graymail,’ i.e., individual lawsuits brought to induce the CIA to settle a case * * * out of fear that any effort to litigate the action would reveal classified information that may undermine ongoing covert operations.”). And, in so doing, it “not only upset[s] the balance of power among co-equal branches of government, but * * * do[es] damage to a right inherent in the constitutional design and acknowledged since our Nation’s founding.” App., infra, 134a (Bumatay, J., dissenting from denial of rehearing en banc).
Litigants have already seized on the panel’s opinion in an attempt to prevent the government from invoking the state-secrets privilege over sensitive national-

31
security information. See, e.g., Appellants’ Opening Br., Jewel v. National Sec. Agency, No. 19-16066 (9th Cir.) (filed Oct. 7, 2019). Under the panel’s opinion, such litigants need not establish that the government failed to satisfy the procedural requirements for assertion of the state-secrets privilege, nor challenge the government’s assertion that further litigation would present a serious risk of harm to the national security. Rather, it is, perversely, the government’s assertion of the statesecrets privilege to exclude such evidence from further litigation against an aggrieved person that simultaneously serves to displace the privilege. That situation is untenable.
In their concurrence in denial of rehearing en banc, two members of the panel attempted to downplay the significance of their decision, describing it as overriding “only the dismissal remedy that sometimes follows the successful invocation of the state secrets evidentiary privilege.” See App., infra, 101a (Gould & Berzon, JJ., concurring in denial of rehearing en banc). But the court of appeals’ alternative to dismissal was for a district court to resolve the merits of a case like this one on the basis of the privileged evidence. See id. 92a-93a (panel opinion) (instructing that, to the extent plaintiffs are “aggrieved persons,” the district court must “review any ‘materials relating to the surveillance as may be necessary,’ including the evidence over which the Attorney General asserted the state secrets privilege”) (citation omitted). That is not how the state-secrets privilege, or any other privilege, works. See General Dynamics Corp. v. United States, 563 U.S. 478, 485 (2011) (“The privileged evidence is excluded.”). The panel was therefore right in its decision to describe

32
its holding as displacing both “the state secrets privilege and its dismissal remedy.” App., infra, 64a (emphasis added). Such a momentous holding deserves this Court’s review.
2. The interlocutory posture of this case provides no basis for deferring this Court’s review. The Court frequently grants review of interlocutory decisions where the petition presents an “important and clear-cut issue of law” that “would otherwise qualify as a basis for certiorari” and “is fundamental to the further conduct of the case.” Stephen M. Shapiro et al., Supreme Court Practice § 4.18, at 283 (10th ed. 2013); see, e.g., Facebook, Inc. v. Duguid, No. 19-511 (cert. granted, July 9, 2020); FNU Tanzin v. Tanvir, 140 S. Ct. 550 (2019); Trump v. Hawaii, 138 S. Ct. 2392 (2018); Nielsen v. Preap, 138 S. Ct. 1279 (2018); Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014); Clapper v. Amnesty Int’l USA, 568 U.S. 398, 412 n.4 (2013); Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). So it is here.
Indeed, interlocutory review is particularly warranted given the potential for harm to the national security posed by further proceedings in this case and others pending in lower courts. Any disclosure of state secrets is “play[ing] with fire.” Sterling v. Tenet, 416 F.3d 338, 344 (4th Cir. 2005), cert. denied, 546 U.S. 1093 (2006). And any disclosure “chance[s] further disclosure—inadvertent, mistaken, or even intentional—that would defeat the very purpose for which the privilege exists.” Ibid. The court’s inquiry itself, including any requests for additional information, could be revealing of the nature of the information the government provided. Even if any such questioning or requests for additional materials were conducted in camera and ex parte, the outcome of the proceedings—e.g., whether or

33
not relief is granted to any particular plaintiff and for what reason—would tend to disclose some information about the state secrets the government seeks to protect. Cf. Clapper, 568 U.S. at 412 n.4 (noting that disposition of matters in camera could reveal sensitive nationalsecurity information). Such disclosure of state secrets and any concomitant damage to the national security would be irreparable.
Moreover, even if the in camera review proceeds without further disclosure, adjudication of the merits on the basis of state secrets still presents serious potential consequences for the government and the national security. In some cases, for example, proceeding on the basis of state-secrets evidence would risk breaking the federal government’s promises to foreign governments that have shared information on the condition that it not be used in any court proceeding. See Exec. Order No. 13,526, § 1.1(d), 3 C.F.R. 298 (2009 Comp.) (“The unauthorized disclosure of foreign government information is presumed to cause damage to the national security.”); id. § 6.1(s), 3 C.F.R. 323 (defining “[f ]oreign government information” to include information provided by a foreign government “with the expectation that the information, the source of the information, or both, are to be held in confidence”).
Particularly in light of “the importance of the issue and the novel view” adopted by the Ninth Circuit, Clapper, 568 U.S. at 408, this Court’s review is warranted.

34

CONCLUSION
The petition for a writ of certiorari should be granted. Respectfully submitted.

DECEMBER 2020

JEFFREY B. WALL Acting Solicitor General
JEFFREY BOSSERT CLARK Acting Assistant Attorney General
EDWIN S. KNEEDLER Deputy Solicitor General
SOPAN JOSHI Senior Counsel to the Assistant Attorney General
JONATHAN Y. ELLIS Assistant to the Solicitor
General
SHARON SWINGLE JOSEPH F. BUSA
Attorneys

APPENDIX A
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 12-56867 D.C. No. 8:11-cv-00301-CJC-VBK YASSIR FAZAGA; ALI UDDIN MALIK; YASSER ABDELRAHIM, PLAINTIFFS-APPELLEES
v.
FEDERAL BUREAU OF INVESTIGATION; CHRISTOPHER A. WRAY, DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION, IN HIS OFFICIAL CAPACITY; PAUL DELACOURT, ASSISTANT DIRECTOR IN CHARGE,
FEDERAL BUREAU OF INVESTIGATION’S LOS ANGELES DIVISION, IN HIS OFFICIAL CAPACITY; PAT ROSE; KEVIN ARMSTRONG; PAUL ALLEN, DEFENDANTS
AND
BARBARA WALLS; J. STEPHEN TIDWELL, DEFENDANTS-APPELLANTS
No. 12-56867 D.C. No. 8:11-cv-00301-CJC-VBK
YASSIR FAZAGA; ALI UDDIN MALIK; YASSER ABDELRAHIM, PLAINTIFFS-APPELLEES
v.
FEDERAL BUREAU OF INVESTIGATION; CHRISTOPHER A. WRAY, DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION, IN HIS OFFICIAL CAPACITY; PAUL DELACOURT, ASSISTANT DIRECTOR IN CHARGE,
FEDERAL BUREAU OF INVESTIGATION’S LOS ANGELES DIVISION, IN HIS OFFICIAL CAPACITY; J. STEPHEN TIDWELL; BARBARA WALLS, DEFENDANTS
(1a)

2a
AND
PAT ROSE; KEVIN ARMSTRONG; PAUL ALLEN, DEFENDANTS-APPELLANTS
No. 13-55017 D.C. No. 8:11-cv-00301-CJC-VBK YASSIR FAZAGA; ALI UDDIN MALIK; YASSER ABDELRAHIM, PLAINTIFFS-APPELANTS
v. FEDERAL BUREAU OF INVESTIGATION; CHRISTOPHER
A. WRAY, DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION, IN HIS OFFICIAL CAPACITY; PAUL DELACOURT, ASSISTANT DIRECTOR IN CHARGE, FEDERAL BUREAU OF INVESTIGATION’S LOS ANGELES DIVISION, IN HIS OFFICIAL CAPACITY; J. STEPHEN
TIDWELL; BARBARA WALLS; PAT ROSE; KEVIN ARMSTRONG; PAUL ALLEN; UNITED STATES OF AMERICA,
DEFENDANTS-APPELLEES
Argued and Submitted: Dec. 7, 2015 Pasadena, California Filed: Feb. 28, 2019
Amended: July 20, 2020
Appeal from the United States District Court for the Central District of California
Cormac J. Carney, District Judge, Presiding
ORDER AND AMENDED OPINION

3a
Before: RONALD M. GOULD and MARSHA S. BERZON, Circuit Judges and GEORGE CARAM STEEH III*, District Judge.
ORDER The opinion filed on February 28, 2019, reported at 916 F.3d 1202, is hereby amended. An amended opinion is filed concurrently with this order. With these amendments, the panel has unanimously voted to deny appellees’ petition for rehearing. Judges Berzon and Gould have voted to deny the petition for rehearing en banc and Judge Steeh so recommends. The full court has been advised of the petition for rehearing en banc. A judge of the court requested a vote on en banc rehearing. The matter failed to receive a majority of votes of non-recused active judges in favor of en banc consideration. Fed. R. App. P. 35. The petition for rehearing and the petition for rehearing en banc are DENIED. No further petitions for panel rehearing or rehearing en banc will be entertained. Judge Berzon’s concurrence with and Judge Bumatay’s dissent from denial of en banc rehearing are filed concurrently herewith.
* The Honorable George Caram Steeh III, United States District Judge for the Eastern District of Michigan, sitting by designation.

4a
OPINION
TABLE OF CONTENTS
INTRODUCTION ............................................................... 17 BACKGROUND .................................................................. 18
I. Factual Background .......................................... 20 II. Procedural History ............................................ 25 DISCUSSION...................................................................... 28 I. The FISA Claim Against the Agent
Defendants ......................................................... 28 A. Recordings of Conversations to Which
Monteilh Was a Party................................. 35 B. Recordings of Conversations in the
Mosque Prayer Hall to Which Monteilh Was Not a Party ......................... 37 C. Recordings Made by Planted Devices ....... 44 II. The State Secrets Privilege and FISA Preemption......................................................... 47 A. The State Secrets Privilege ....................... 50 B. The District Court’s Dismissal of the Search Claims Based on the State Secrets Privilege ........................................ 52 C. FISA Displacement of the State Secrets Privilege ........................................ 56 D. Applicability of FISA’s § 1806(f ) Procedures to Affirmative Legal Challenges to Electronic Surveillance....... 66 E. Aggrieved Persons ..................................... 76 III. Search Claims .................................................... 77 A. Fourth Amendment Injunctive Relief Claim Against the Official-Capacity Defendants.................................................. 77 B. Fourth Amendment Bivens Claim Against the Agent Defendants................... 81

5a
IV. Religion Claims .................................................. 83 A. First Amendment and Fifth Amendment Injunctive Relief Claims Against the Official-Capacity Defendants............... 83 B. First Amendment and Fifth Amendment Bivens Claims Against the Agent Defendants....................................... 84 C. 42 U.S.C. § 1985(3) Claims Against the Agent Defendants ................................ 89 D. Religious Freedom Restoration Act Claim Against the Agent Defendants and Government Defendants ..................... 92 E. Privacy Act Claim Against the FBI........... 97 F. FTCA Claims.............................................. 99 1. FTCA Judgment Bar ........................ 100 2. FTCA Discretionary Function Exception .......................................... 101
V. Procedures on Remand.................................... 102 CONCLUSION.................................................................. 107
BERZON, Circuit Judge:
INTRODUCTION
Three Muslim residents of Southern California allege that, for more than a year, the Federal Bureau of Investigation (“FBI”) paid a confidential informant to conduct a covert surveillance program that gathered information about Muslims based solely on their religious identity. The three plaintiffs filed a putative class action against the United States, the FBI, and two FBI officers in their official capacities (“Government” or “Government Defendants”), and against five FBI agents in their individual capacities (“Agent Defendants”). Alleging that the investigation involved unlawful searches and anti-

6a
Muslim discrimination, they pleaded eleven constitutional and statutory causes of action.1
The Attorney General of the United States asserted the state secrets privilege with respect to three categories of evidence assertedly at issue in the case, and the Government moved to dismiss the discrimination claims pursuant to that privilege. The Government expressly did not move to dismiss the Fourth Amendment and Foreign Intelligence Surveillance Act (“FISA”) unlawful search claims based on the privilege. Both the Government and the Agent Defendants additionally moved to dismiss Plaintiffs’ discrimination and unlawful search claims based on arguments other than the privilege.
The district court dismissed all but one of Plaintiffs’ claims on the basis of the state secrets privilege— including the Fourth Amendment claim, although the Government Defendants had not sought its dismissal on privilege grounds. The district court allowed only the FISA claim against the Agent Defendants to proceed. Plaintiffs appeal the dismissal of the majority of their claims, and the Agent Defendants appeal the denial of qualified immunity on the FISA claim.
We conclude that some of the claims dismissed on state secrets grounds should not have been dismissed outright. Instead, the district court should have re-
1 Specifically, the Plaintiffs alleged violations of the First Amendment’s Establishment Clause and Free Exercise Clauses; the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.; the equal protection component of the Fifth Amendment’s Due Process Clause; the Privacy Act, 5 U.S.C. § 552a; the Fourth Amendment; the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1810; and the Federal Tort Claims Act, 28 U.S.C. § 1346.

7a
viewed any state secrets evidence necessary for a determination of whether the alleged surveillance was unlawful following the secrecy-protective procedure set forth in FISA. See 50 U.S.C. § 1806(f ). After addressing Defendants’ other arguments for dismissing Plaintiffs’ claims, we conclude that some of Plaintiffs’ allegations state a claim while others do not. Accordingly, we remand to the district court for further proceedings on the substantively stated claims.
BACKGROUND
At this stage in the litigation, we “construe the complaint in the light most favorable to the plaintiff[s], taking all [their] allegations as true and drawing all reasonable inferences from the complaint in [their] favor.” Doe v. United States, 419 F.3d 1058, 1062 (9th Cir. 2005). “Conclusory allegations and unreasonable inferences, however, are insufficient to defeat a motion to dismiss.” Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007).
Plaintiffs are three Muslims who were residents of Southern California: Sheikh Yassir Fazaga, Ali Uddin Malik, and Yasser AbdelRahim. Fazaga was, at the times relevant to this litigation, an imam at the Orange County Islamic Foundation (“OCIF”), a mosque in Mission Viejo, California. Malik and AbdelRahim are practicing Muslims who regularly attended religious services at the Islamic Center of Irvine (“ICOI”).
The complaint sought relief against the United States, the FBI, and two federal officials named in their official capacities, as well as five individual Agent Defendants— Kevin Armstrong, Paul Allen, J. Stephen Tidwell, Barbara Walls, and Pat Rose—named in their individual capacities. Armstrong and Allen were FBI Special

8a
Agents assigned to the Orange County areas; Tidwell was the Assistant Director in Charge of the FBI’s Los Angeles Field Office from August 2005 to December 2007; Walls was the Special Agent in Charge of the FBI’s Santa Ana branch office, a satellite office of the FBI’s Los Angeles field office; and Rose was a Special Agent assigned to the FBI’s Santa Ana branch office.
Because of the sensitivity of the issues in this case, we particularly stress the usual admonition that accompanies judicial determination on motions to dismiss a complaint: the facts recited below come primarily from Plaintiffs’ allegations in their complaint.2 The substance of those allegations has not been directly addressed by the defendants. At this point in the litigation, the truth or falsity of the allegations therefore is entirely unproven.
I. Factual Background
For at least fourteen months in 2006 and 2007, the FBI paid a confidential informant named Craig Monteilh to gather information as part of a counterterrorism investigation known as Operation Flex. Plaintiffs allege that Operation Flex was a “dragnet surveillance” program, the “central feature” of which was to “gather information on Muslims.”3
2 In addition to the facts alleged in the complaint, this opinion at some points refers to facts contained in two public declarations submitted by the Government in support of its invocation of the state secrets privilege.
3 In a public declaration, the FBI frames Operation Flex differently, contending that it “focused on fewer than 25 individuals and was directed at detecting and preventing possible terrorist attacks.”

9a
At some point before July 2006, Stephen Tidwell, then the Assistant Director in Charge of the FBI’s Los Angeles Field Office, authorized first the search for an informant and later the selection of Monteilh as that informant. Once selected, Monteilh was supervised by two FBI handlers, Special Agents Kevin Armstrong and Paul Allen.
In July 2006, Monteilh began attending ICOI. As instructed by Allen and Armstrong, Monteilh requested a meeting with ICOI’s imam, represented that he wanted to convert to Islam, and later publicly declared his embrace of Islam at a prayer service. Monteilh subsequently adopted the name Farouk al-Aziz and began visiting ICOI daily, attending prayers, classes, and special events. He also visited “with some regularity” several other large mosques in Orange County.
Armstrong and Allen closely supervised Monteilh during the course of Operation Flex, explaining to him the parameters and goals of the investigation. Monteilh was “to gather information on Muslims in general,” using information-gathering and surveillance tactics. The agents provided him with the tools to do so, including audio and video recording devices. They also gave Monteilh general goals, such as obtaining contact information from a certain number of Muslims per day, as well as specific tasks, such as entering a certain house or having lunch with a particular person. Sometimes, Allen and Armstrong prepared photo arrays with hun-
The FBI maintains that the goal of Operation Flex “was to determine whether particular individuals were involved in the recruitment and training of individuals in the United States or overseas for possible terrorist activity.”

10a
dreds of Muslim community members and asked Monteilh to arrange the photos from most to least dangerous.
Armstrong and Allen did not, however, limit Monteilh to specific targets. Rather, “they repeatedly made clear that they were interested simply in Muslims.” Allen told Monteilh, “We want to get as many files on this community as possible.” To the extent Allen and Armstrong expressed an interest in certain targets, it was in particularly religious Muslims and persons who might influence young Muslims. When Monteilh’s surveillance activities generated information on non-Muslims, the agents set that information aside.
In accordance with his broad directive, Monteilh engaged with a wide variety of individuals. As instructed by his handlers, he attended classes at the mosque, amassed information on Muslims’ charitable giving, attended Muslim fundraising events, collected information on community members’ travel plans, attended lectures by Muslim scholars, went to daily prayers, memorized certain verses from the Quran and recited them to others, encouraged people to visit “jihadist” websites, worked out with targeted people at a gym to get close to them, and sought to obtain compromising information that could be used to pressure others to become informants. He also collected the names of board members, imams, teachers, and other leadership figures at the mosques, as well as the license plate numbers of cars in the mosque parking lots during certain events.
Virtually all of Monteilh’s interactions with Muslims were recorded. Monteilh used audio and video recording devices provided to him by the agents, including a

11a
cellphone, two key fobs with audio recording capabilities, and a camera hidden in a button on his shirt. He recorded, for example, his interactions with Muslims in the mosques, which were transcribed and reviewed by FBI officials. He also recorded meetings and conversations in the mosque prayer hall to which he was not a party. He did so by leaving his possessions behind, including his recording key fob, as though he had forgotten them or was setting them down while doing other things. Monteilh told Allen and Armstrong in written reports that he was recording conversations in this manner. The agents never told him to stop this practice, and they repeatedly discussed with Monteilh the contents of the recordings.
Armstrong and Allen occasionally instructed Monteilh to use his secret video camera for specific purposes, such as capturing the internal layout of mosques and homes. They also told Monteilh to obtain the contact information of people he met, and monitored his email and cellphone to obtain the email addresses and phone numbers of the people with whom he interacted.
Although Monteilh spent the majority of his time at ICOI, he conducted surveillance and made audio recordings in at least seven other mosques during the investigation. During Monteilh’s fourteen months as an informant for Operation Flex, the FBI obtained from him hundreds of phone numbers; thousands of email addresses; background information on hundreds of individuals; hundreds of hours of video recordings of the interiors of mosques, homes, businesses, and associations; and thousands of hours of audio recordings of conversations, public discussion groups, classes, and lectures.

12a
In addition to the surveillance undertaken directly by Monteilh, Allen and Armstrong told Monteilh that electronic surveillance equipment had been installed in at least eight mosques in the area, including ICOI. The electronic surveillance equipment installed at the Mission Viejo mosque was used to monitor Plaintiff Yassir Fazaga’s conversations, including conversations held in his office and other parts of the mosque not open to the public.
At the instruction of Allen and Armstrong, Monteilh took extensive handwritten notes each day about his activities and the surveillance he was undertaking. Allen and Armstrong met with Monteilh roughly twice each week to discuss his assignments, give him instructions, receive his daily notes, upload his recordings, and give him fresh devices. Monteilh was also required to call either Allen or Armstrong each day to apprise them of his activities. They told Monteilh that his daily notes were read by their supervisors.
The operation began to unravel when, in early 2007, Allen and Armstrong instructed Monteilh to begin more pointedly asking questions about jihad and armed conflict and to indicate his willingness to engage in violence. Implementing those instructions, Monteilh told several people that he believed it was his duty as a Muslim to take violent action and that he had access to weapons. Several ICOI members reported Monteilh to community leaders. One of the community leaders then called the FBI to report what Monteilh was saying, and instructed concerned ICOI members to call the Irvine Police Department, which they did. ICOI sought a restraining order against Monteilh, which was granted in June 2007.

13a
Around the same time, Allen and Armstrong told Monteilh that Barbara Walls, then Assistant Special Agent in Charge of the FBI’s Santa Ana office, no longer trusted him and wanted him to stop working for the FBI. In October 2007, Monteilh was told that his role in Operation Flex was over. At one of the final meetings between Monteilh and Agents Allen and Armstrong, Walls was present. She warned Monteilh not to tell anyone about the operation.
Monteilh’s identity as an informant was revealed in February 2009 in connection with a criminal prosecution for naturalization fraud of Ahmadullah (or Ahmed) Niazi, one of the ICOI members who had reported Monteilh’s statements to the Irvine Police Department. FBI Special Agent Thomas Ropel testified at a bail hearing in Niazi’s case that he had heard several recordings between Niazi and a confidential informant, and that the informant was the same person Niazi had reported to the police. Ropel’s statements thus indicated that Monteilh was a confidential informant and that he had recorded numerous conversations for the FBI.
Several sources subsequently confirmed that Monteilh worked for the FBI, including the FBI and Monteilh himself. Although the FBI has disclosed some information about Monteilh’s actions as an informant, including that he created audio and video recordings and provided handwritten notes to the FBI, the FBI maintains that “certain specific information” concerning Operation Flex and Monteilh’s activities must be protected in the interest of national security.

14a
II. Procedural History
Plaintiffs filed the operative complaint in September 2011, asserting eleven causes of action, which fall into two categories: claims alleging unconstitutional searches (“search claims”) and claims alleging unlawful discrimination on the basis of, or burdens on, or abridgement of the rights to, religion (“religion claims”). The religion claims allege violations of the First Amendment Religion Clauses, the equal protection guarantee of the Due Process Clause of the Fifth Amendment,4 the Privacy Act, the Religious Freedom Restoration Act (“RFRA”), the Foreign Intelligence Surveillance Act (“FISA”), and the Federal Tort Claims Act (“FTCA”).
Plaintiffs filed the complaint as a putative class action, with the class defined as “[a]ll individuals targeted by Defendants for surveillance or information-gathering through Monteilh and Operation Flex, on account of their religion, and about whom the FBI thereby gathered personally identifiable information.” The complaint sought injunctive relief for the individual Plaintiffs and the class, and damages for themselves as individuals.5 The Agent Defendants moved to dismiss the
4 “The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws.” United States v. Windsor, 570 U.S. 744, 774 (2013) (citing Bolling v. Sharpe, 347 U.S. 497, 499500 (1954)).
5 The proposed class has not been certified. In addition to its relevance to the merits of Plaintiffs’ claims, the information over which the Government asserted the state secrets privilege may also be relevant to the decision whether to certify the class. In addition, the scope of privileged evidence needed to litigate the case likely will differ should class certification be granted.

15a
claims against them on various grounds, including qualified immunity. The Government moved to dismiss the amended complaint and for summary judgment, arguing that Plaintiffs’ statutory and constitutional claims fail on various grounds unrelated to the state secrets privilege.
The Government also asserted that the religion claims, but not the search claims, should be dismissed under the Reynolds state secrets privilege, see United States v. Reynolds, 345 U.S. 1 (1953), on the ground that litigation of the religion claims could not proceed without risking the disclosure of certain evidence protected by the privilege. The assertion of the state secrets privilege was supported with a previously filed public declaration from then-U.S. Attorney General Eric Holder; a public declaration from Mark Giuliano, then Assistant Director of the FBI’s Counterterrorism Division; and two classified declarations and a classified supplemental memorandum from Giuliano. The Attorney General asserted the state secrets privilege over three categories of evidence: (1) “[i]nformation that could tend to confirm or deny whether a particular individual was or was not the subject of an FBI counterterrorism investigation”; (2) “[i]nformation that could tend to reveal the initial reasons (i.e., predicate) for an FBI counterterrorism investigation of a particular person (including in Operation Flex), any information obtained during the course of such an investigation, and the status and results of the investigation”; and (3) “[i]nformation that could tend to reveal whether particular sources and methods were used in a counterterrorism investigation.”
In one order, the district court dismissed the FISA claim against the Government, brought under 50 U.S.C.

16a
§ 1810, concluding that Congress did not waive sovereign immunity for damages actions under that statute. See Al-Haramain Islamic Found., Inc. v. Obama (AlHaramain II), 705 F.3d 845, 850-55 (9th Cir. 2012). Plaintiffs do not challenge this dismissal. In the same order, the district court permitted Plaintiffs’ FISA claim against the Agent Defendants to proceed, rejecting the argument that the Agent Defendants were entitled to qualified immunity.
In a second order, the district court dismissed all the other claims in the case on the basis of the Reynolds state secrets privilege—including the Fourth Amendment claim, for which the Government Defendants expressly did not seek dismissal on that ground. Relying “heavily” on the classified declarations and supplemental memorandum, the district court concluded “that the subject matter of this action, Operation Flex, involves intelligence that, if disclosed, would significantly compromise national security.” It held that the Government Defendants would need to rely on the privileged material to defend against Plaintiffs’ claims, and that the privileged evidence was so inextricably tied up with nonprivileged material that “the risk of disclosure that further litigation would engender [could not] be averted through protective orders or restrictions on testimony.” The district court declined to use, as a substitute for dismissal, the in camera, ex parte procedures set out in § 1806(f ) of FISA, on the ground that FISA’s procedures do not apply to non-FISA claims.
The Agent Defendants timely filed notices of appeal from the denial of qualified immunity on Plaintiffs’ FISA claim. The district court then approved the parties’ stipulation to stay all further proceedings related

17a
to the remaining FISA claim pending resolution of the Agent Defendants’ appeal and, at Plaintiffs’ request, entered partial final judgment under Federal Rule of Civil Procedure 54(b), allowing immediate appeal of the majority of Plaintiffs’ claims. The Plaintiffs’ appeal and the Agent Defendants’ appeal from the denial of qualified immunity on the FISA claim were consolidated and are both addressed in this opinion.
DISCUSSION
We begin with the only claim to survive Defendants’ motions to dismiss in the district court: the FISA claim against the Agent Defendants. After addressing the FISA claim, we turn to Plaintiffs’ argument that in cases concerning the lawfulness of electronic surveillance, the ex parte and in camera procedures set out in § 1806(f ) of FISA supplant the dismissal remedy otherwise mandated by the state secrets evidentiary privilege. See infra Part II. We then proceed to evaluate Defendants’ other arguments for dismissal of the search and religion claims. See infra Parts III-IV. Finally, we explain the procedures to be followed on remand. See infra Part V.
I. The FISA Claim Against the Agent Defendants
Section 110 of FISA, codified at 50 U.S.C. § 1810, creates a private right of action for an individual subjected to electronic surveillance in violation of FISA’s procedures. It provides, in pertinent part:
An aggrieved person . . . who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section

18a
1809 of this title shall have a cause of action against any person who committed such violation. . . .
50 U.S.C. § 1810.
This statutory text refers to another section, § 1809. That section, in turn, proscribes as criminal offenses two types of conduct: (1) “intentionally . . . engag[ing] in electronic surveillance under color of law except as authorized by [FISA, the Wiretap Act, the Stored Communications Act, or the pen register statute,] or any express statutory authorization,” and (2) “intentionally . . . disclos[ing] or us[ing] information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance” without authorization. 50 U.S.C. § 1809(a).
To determine whether Plaintiffs plausibly allege a cause of action under § 1810, we must decide (1) whether Plaintiffs are “aggrieved persons” within the meaning of the statute, (2) whether the surveillance to which they were subjected qualifies as “electronic surveillance,” and (3) whether the complaint plausibly alleges a violation of 50 U.S.C. § 1809.
An “aggrieved person” is defined as “a person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance.” 50 U.S.C. § 1801(k).6 Plaintiffs allege in extensive detail in the complaint that they were subjected to many and varied instances of audio and video surveillance. The complaint’s allegations are
6 “ ‘Person’ means any individual, including any officer or employee of the Federal Government, or any group, entity, association, corporation, or foreign power.” 50 U.S.C. § 1801(m).

19a
sufficient if proven to establish that Plaintiffs are “aggrieved persons.”
The complaint also adequately alleges that much of the surveillance as described constitutes “electronic surveillance” as defined by FISA. FISA offers four definitions of electronic surveillance. 50 U.S.C. § 1801(f ). Only the fourth is potentially at stake in this case:
the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.
Id. § 1801(f )(4) (emphases added). The key question as to the presence of “electronic surveillance” under this definition is whether the surveillance detailed in the complaint was undertaken in circumstances in which (1) Plaintiffs had a reasonable expectation of privacy and (2) a warrant would be required for law enforcement purposes. If, as the complaint alleges, no warrant was in fact obtained, such electronic surveillance would constitute a violation of § 1809. Id. § 1809(a).
The parties, citing ACLU v. NSA, 493 F.3d 644, 657 n.16, 683 (6th Cir. 2007), agree that these legal standards from FISA—reasonable expectation of privacy and the warrant requirement—are evaluated just as they would be under a Fourth Amendment analysis. The Agent Defendants argue, however, that they are entitled to qualified immunity on Plaintiffs’ FISA claim.

20a
Plaintiffs accept that qualified immunity can apply under FISA but maintain that the Agent Defendants are not entitled to immunity.7
The Agent Defendants are entitled to qualified immunity from damages unless Plaintiffs “plead[] facts showing (1) that the official[s] violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). We are permitted to “exercise [our] sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). Because, as we conclude in infra Part II.E, the applicability of FISA’s alternative procedures for reviewing state secrets evidence turns on whether the surveillance at issue constitutes “electronic surveillance” within the meaning of FISA,8 we will begin with the first prong, even though
7 We have found only one decision, unpublished, addressing whether qualified immunity is an available defense to a FISA claim. See Elnashar v. U.S. Dep’t of Justice, No. CIV.03-5110(JNE/JSM), 2004 WL 2237059, at *5 (D. Minn. Sept. 30, 2004) (dismissing a FISA claim on grounds of qualified immunity because there was no evidence the defendant “would have known that the search of [plaintiff ’s] apartment would have required a warrant”), aff ’d on other grounds, 446 F.3d 792 (8th Cir. 2006). As the issue is not contested, we do not decide it.
8 Again, as we noted above, “electronic surveillance” as defined by FISA must fall under one of four types of government action. 50 U.S.C. § 1801(f ). The relevant one for our purposes involves “the installation or use of an electronic, mechanical, or other surveillance

21a
we conclude that the Agent Defendants are ultimately entitled to qualified immunity on the second prong.
For purposes of qualified immunity, a right is clearly established if, “at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.’ ” al-Kidd, 563 U.S. at 741 (alterations in original) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “This inquiry . . . must be undertaken in light of the specific context of the case, not as a broad general proposition.” Saucier v. Katz, 533 U.S. 194, 201 (2001). “We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” al-Kidd, 563 U.S. at 741.
“The operation of [the qualified immunity] standard, however, depends substantially upon the level of generality at which the relevant ‘legal rule’ is to be identified.” Anderson, 483 U.S. at 639. Often, whether a right is “clearly established” for purposes of qualified immunity will turn on the legal test for determining whether that right has been violated. For claims of excessive force, for example, “[i]t is sometimes difficult for an officer to determine how the relevant legal doctrine . . . will apply to the factual situation the officer confronts.” Saucier, 533 U.S. at 205. “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments —in circumstances that are tense, uncertain, and rap-
device . . . under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.” Id. § 1801(f )(4).

22a
idly evolving—about the amount of force that is necessary in a particular situation.” Graham v. Connor, 490 U.S. 386, 396-97 (1989). By contrast, “[w]ith few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no,” Kyllo v. United States, 533 U.S. 27, 31 (2001), as “the Fourth Amendment has drawn a firm line at the entrance to the house,” Payton v. New York, 445 U.S. 573, 590 (1980). Thus, where the test for determining whether the right in question has been violated is framed as a standard, rather than a rule, officials are given more breathing room to make “reasonable mistakes.” Saucier, 533 U.S. at 205. In those instances, we require a higher degree of factual specificity before concluding that the right is “clearly established.” But where the right at issue is clear and specific, officials may not claim qualified immunity based on slight changes in the surrounding circumstances.9
To properly approach this inquiry, we consider separately three categories of audio and video surveillance alleged in the complaint: (1) recordings made by Monteilh of conversations to which he was a party; (2) recordings made by Monteilh of conversations to which he was not a party (i.e., the recordings of conversations in
9 The Supreme Court made a similar observation in an analogous context—determining whether a state court has unreasonably applied clearly established federal law for purposes of habeas review under the Antiterrorism and Effective Death Penalty Act: “[T]he range of reasonable judgment can depend in part on the nature of the relevant rule. If a legal rule is specific, the range may be narrow. . . . Other rules are more general, and their meaning must emerge in application over the course of time.” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).

23a
the mosque prayer hall); and (3) recordings made by devices planted by FBI agents in Fazaga’s office and AbdelRahim’s house, car, and phone.10
We conclude that the Agent Defendants are entitled to dismissal on qualified immunity grounds of Plaintiffs’ § 1810 claim as to the first two categories of surveillance. As to the third category of surveillance, conducted via devices planted in AbdelRahim’s house and Fazaga’s office, Allen and Armstrong are not entitled to qualified immunity. But Tidwell, Walls, and Rose are entitled to dismissal as to this category, because Plaintiffs do not plausibly allege their involvement in this category of surveillance, and so have not “pleaded facts showing . . . that [those] officials violated a statutory or constitutional right.” al-Kidd, 563 U.S. at 735.
10 We note that, in their “Claims for Relief,” under the FISA cause of action, Plaintiffs recite that “Defendants, under color of law, acting through Monteilh” violated FISA (emphasis added). But the complaint specifically recites facts relating to devices allegedly planted directly by the Agent Defendants. Under the Federal Rules of Civil Procedure, it is the facts alleged that circumscribe the reach of the complaint for purposes of a motion to dismiss. See Skinner v. Switzer, 562 U.S. 521, 530 (2011).
We also note that there may be a fourth category of surveillance here at issue: video recordings of the interiors of individuals’ homes. These recordings are not given meaningful attention in the parties’ briefs, and we cannot determine from the complaint if Plaintiffs mean to allege that Monteilh video recorded the layouts of houses into which he was invited, or that he entered the houses without permission. Although at this stage we do not construe the complaint as asserting claims based on this fourth category of surveillance, our opinion does not foreclose Plaintiffs from clarifying these and other allegations on remand.

24a
A. Recordings of Conversations to Which Monteilh Was a Party
A reasonable expectation of privacy exists where “a person ha[s] exhibited an actual (subjective) expectation of privacy,” and “the expectation [is] one that society is prepared to recognize as ‘reasonable.’ ” Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring); see, e.g., California v. Ciraolo, 476 U.S. 207, 211) (1986) (describing Justice Harlan’s test as the “touchstone of Fourth Amendment analysis”). Generally, an individual “has no privacy interest in that which he voluntarily reveals to a government agent,” a principle known as the invited informer doctrine. United States v. Wahchumwah, 710 F.3d 862, 867 (9th Cir. 2013) (citing Hoffa v. United States, 385 U.S. 293, 300-02 (1966)); see also United States v. Aguilar, 883 F.2d 662, 697-98 (9th Cir. 1989), superseded on other grounds by statute, Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359, as recognized in United States v. Gonzalez-Torres, 309 F.3d 594 (9th Cir. 2002). Plaintiffs contend, however, that the invited informer doctrine does not apply to the recordings made by Monteilh of conversations to which he was a party because the surveillance was conducted with discriminatory purpose and therefore in bad faith.
Bad faith of this sort does not, however, implicate the reasonable privacy expectation protected by the Fourth Amendment or violate the Fourth Amendment’s warrant requirement. There is, to be sure, an important “limitation[] on the government’s use of undercover informers to infiltrate an organization engaging in protected first amendment activities”: the government’s investigation must not be conducted “for the purpose of

25a
abridging first amendment freedoms.” Aguilar, 883 F.2d at 705. But that limitation on voluntary conversations with undercover informants—sometimes referred to as a “good faith” requirement,11 e.g., United States v. Mayer, 503 F.3d 740, 751 (9th Cir. 2007); Aguilar, 883 F.2d at 705—is imposed by the First Amendment, not the Fourth Amendment. As that constitutional limitation is not grounded in privacy expectations, it does not affect the warrant requirement under the Fourth Amendment.
Under the appropriate Fourth Amendment precepts, “[u]ndercover operations, in which the agent is a socalled ‘invited informer,’ are not ‘searches’ under the Fourth Amendment.” Mayer, 503 F.3d at 750 (emphasis added) (quoting Aguilar, 883 F.2d at 701). “[A] defendant generally has no privacy interest”—not merely an unreasonable privacy interest—“in that which he voluntarily reveals to a government agent.” Wahchumwah, 710 F.3d at 867 (emphasis added). In other words, use of a government informant under the invited informer doctrine—even if not in good faith in the First Amendment sense—does not implicate the privacy interests protected by the Fourth Amendment. Because our inquiry under FISA is confined to whether a reasonable expectation of privacy was violated and whether a warrant was therefore required, see ACLU, 493 F.3d at 657 n.16, 683, the First Amendment-grounded goodfaith limitation does not apply to our current inquiry.
Under the invited informer doctrine, Plaintiffs lacked a reasonable expectation of privacy in the conversations
11 We use this term in the remainder of this discussion to refer to the constitutional limitation on the use of informants discussed in the text.

26a
recorded by Monteilh to which he was a party. The Agent Defendants are therefore not liable under FISA for this category of surveillance.
B. Recordings of Conversations in the Mosque Prayer Hall to Which Monteilh Was Not a Party
Plaintiffs did have a privacy-grounded reasonable expectation that their conversations in the mosque prayer hall would not be covertly recorded by an individual who was not present where Plaintiffs were physically located and was not known to be listening in.12 The Agent Defendants are, however, entitled to qualified immunity with respect to this category of surveillance under the second prong of the qualified immunity standard— whether “the right was ‘clearly established’ at the time of the challenged conduct.” al-Kidd, 563 U.S. at 735 (quoting Harlow, 457 U.S. at 818).
Again, the relevant questions here on the merits of the FISA and Fourth Amendment issues are whether “a person ha[s] exhibited an actual (subjective) expectation of privacy,” and whether “the expectation [is] one that society is prepared to recognize as ‘reasonable.’ ” Katz, 389 U.S. at 361 (Harlan, J., concurring). To first determine whether an individual has “exhibited an actual expectation of privacy,” we assess whether “he [sought] to preserve [something] as private.” Bond v. United States, 529 U.S. 334, 338 (2000) (alterations in original) (quoting Smith v. Maryland, 442 U.S. 735, 740 (1979)). Based on the rules and customs of the mosque, and the
12 We are not suggesting that the recording would have been impermissible under FISA and the Fourth Amendment if the Agent Defendants had obtained a warrant based on probable cause. Here, however, no warrant was obtained.

27a
allegations in the complaint, we have no trouble determining that Plaintiffs manifested an actual, subjective expectation of privacy in their conversations there.
The mosque prayer hall is not an ordinary public place. It is a site of religious worship, a place for Muslims to come together for prayer, learning, and fellowship. Plaintiffs allege that the prayer hall “is [a] sacred space where particular rules and expectations apply. Shoes are prohibited, one must be in a state of ablution, discussing worldly matters is discouraged, and the moral standards and codes of conduct are at their strongest.” Notably, “[g]ossiping, eavesdropping, or talebearing (namima—revealing anything where disclosure is resented) is forbidden.” And ICOI, which Malik and AbdelRahim attended, specifically prohibited audio and video recording in the mosque without permission. When, on a rare occasion, an outside entity did record an event or a speaker, ICOI put up signs to notify congregants. Furthermore, Plaintiffs explain in their complaint that halaqas, which are small group meetings during which participants “discuss theology or matters related to the practice of Islam,” are understood by mosque attendees to be environments that “ensure some measure of confidentiality among participants.”13
These privacy-oriented rules and customs confirm for us that Plaintiffs held a subjective expectation of privacy in their conversations among themselves while in the prayer hall.
13 We understand that description to imply that Monteilh recorded conversations that occurred during halaqas in the mosque prayer hall.

28a
That Plaintiffs were not alone in the mosque prayer hall does not defeat their claim that they manifested an expectation of privacy.14 “Privacy does not require solitude.” United States v. Taketa, 923 F.2d 665, 673 (9th Cir. 1991). For example, “a person can have a subjective expectation that his or her home will not be searched by the authorities, even if he or she has invited friends into his or her home.” Trujillo v. City of Ontario, 428 F. Supp. 2d 1094, 1102 (C.D. Cal. 2006), aff ’d sub nom. Bernhard v. City of Ontario, 270 F. App’x 518 (9th Cir. 2008). The same principle applies to certain other enclosed locations in which individuals have particular reason to expect confidentiality and repose.15
14 The Agent Defendants cite Smith v. Maryland, 442 U.S. at 74041, to support the proposition that the unattended recordings in the mosque prayer hall did not invade Plaintiffs’ reasonable expectation of privacy. Smith and its progeny do not apply here. Smith concerned a pen register installed and used by a telephone company, and held that an individual enjoys no Fourth Amendment protection “in information he voluntary turns over to third parties.” Id. at 743-44. But, as the Fourth Circuit has stressed, Smith and the cases relying on it are concerned with “whether the government invades an individual’s reasonable expectation of privacy when it obtains, from a third party, the third party’s records.” United States v. Graham, 824 F.3d 421, 426 (4th Cir. 2016) (en banc) (emphasis added), abrogated on other grounds by Carpenter v. United States, 138 S. Ct. 2206 (2018). Cases “involv[ing] direct government surveillance activity,” including surreptitiously viewing, listening to, or recording individuals—like the one before us—present a wholly separate question. Id.
15 Taketa, for example, held that a state employee could hold an expectation of privacy in his office even though the office was shared with two others. 923 F.2d at 673. “[E]ven ‘private’ business offices are often subject to the legitimate visits of coworkers, supervisors, and the public, without defeating the expectation of privacy unless the office is ‘so open to fellow employees or the public that no

29a
Finally, the case law distinguishes between an expectation of privacy in a place and an expectation of privacy as to whether an individual’s conversations or actions in that place would be covertly recorded by persons not themselves present in that place.16 The Supreme Court has recently emphasized the significant difference between obtaining information in person and recording information electronically. See Carpenter, 138 S. Ct. at 2219 (“Unlike the nosy neighbor who keeps an eye on comings and goings, they are ever alert, and their memory is nearly infallible.”). Here, given the intimate and religious nature of the space and the express prohibition on recording, Plaintiffs have adequately alleged that they subjectively believed their conversations would not be covertly recorded by someone not present in the prayer hall for transmission to people not present in the prayer hall.17
expectation of privacy is reasonable.’ ” Id. (quoting O’Connor v. Ortega, 480 U.S. 709, 717-18 (1987)).
16 See also Taketa, 923 F.2d at 676 (“Taketa has no general privacy interest in [his co-worker’s] office, but he may have an expectation of privacy against being videotaped in it.”); Trujillo, 428 F. Supp. 2d at 1102 (considering the secret installation and use of a video camera in a police department’s men’s locker room, and explaining that it was “immaterial” that the plaintiffs changed their clothes in the presence of others, because “[a] person can have a subjective expectation of privacy that he or she will not be covertly recorded, even though he or she knows there are other people in the locker room” (emphasis added)).
17 The complaint alleges that Plaintiffs lost “confidence in the mosque as a sanctuary” after learning of Monteilh’s surveillance. This feeling of the loss of privacy reinforces the conclusion that Plaintiffs exhibited an actual expectation of privacy in their conversations in the mosque before the alleged surveillance took place.

30a
Having concluded that Plaintiffs exhibited a subjective expectation of privacy, we now consider whether it was “one that society is prepared to recognize as ‘reasonable.’ ” Katz, 389 U.S. at 361 (Harlan, J., concurring). In assessing whether an individual’s expectation of privacy is reasonable, context is key. See O’Connor, 480 U.S. at 715. “Although no single rubric definitively resolves which expectations of privacy are entitled to protection, the analysis is informed by historical understandings ‘of what was deemed an unreasonable search and seizure when [the Fourth Amendment] was adopted.’ ” Carpenter, 138 S. Ct. at 2213-14 (alteration in original) (footnote omitted) (quoting Carroll v. United States, 267 U.S. 132, 149 (1925)). Relevant here is the principle that “the extent to which the Fourth Amendment protects people may depend upon where those people are.” Minnesota v. Carter, 525 U.S. 83, 88 (1998) (emphasis added). We thus “assess the nature of the location where [the] conversations were seized”—here, the mosque prayer hall. United States v. Gonzalez, Inc., 412 F.3d 1102, 1116-17 (9th Cir. 2005), amended on denial of reh’g, 437 F.3d 854 (9th Cir. 2006).
The sacred and private nature of the houses of worship Plaintiffs attended distinguishes them from the types of commercial and public spaces in which courts have held that individuals lack a reasonable expectation of privacy.18 United States v. Gonzalez, 328 F.3d 543 (9th Cir. 2003), for example, held that the defendant had
18 See, e.g., In re John Doe Trader No. One, 894 F.2d 240, 243-44 (7th Cir. 1990) (holding that a rule prohibiting tape recorders on the trading floor “aimed at various forms of distracting behavior” and explicitly “designed to protect ‘propriety and decorum’ not privacy” did not support a reasonable expectation of privacy).

31a
no reasonable expectation of privacy in “a large, quasipublic mailroom at a public hospital during ordinary business hours.” Id. at 547. The mailroom had open doors, was visible to the outside via large windows, and received heavy foot traffic. Id. In addition to focusing on the physical specifics of the mailroom, Gonzalez emphasized that public hospitals, “by their nature . . . create a diminished expectation of privacy. The use of surveillance cameras in hospitals for patient protection, for documentation of medical procedures and to prevent theft of prescription drugs is not uncommon.” Id. The mosque prayer halls in this case, by contrast, have no characteristics similarly evidencing diminished expectations of privacy or rendering such expectations unreasonable.19 There are no urgent health or safety
19 Again, the fact that many people worshipped at the mosque does not render the Plaintiffs’ expectations of privacy in their conversations (or at the very least from, their expectations that their conversations would not be covertly recorded) unreasonable. In Gonzalez, Inc., for example, we held that individuals who owned and managed a small, family-run business with up to 25 employees had “a reasonable expectation of privacy over the on-site business conversations between their agents.” 412 F.3d at 1116-17. The Gonzalez family, whose phone calls were intercepted, were not alone in their place of business, and their calls could have been overheard by others who were present. But we concluded that they nonetheless had a reasonable expectation of privacy over their conversations because they owned the office, had full access to the building, and exercised managerial control over the office’s day-to-day operations. Id. Similarly, United States v. McIntyre, 582 F.2d 1221 (9th Cir. 1978), rejected the argument that a police officer lacked a reasonable expectation of privacy over conversations had in his office because his office door was open and a records clerk worked nearby in an adjacent room. Id. at 1224. “A business office need not be sealed to offer its occupant a reasonable degree of privacy,” we reasoned. Id.

32a
needs justifying surveillance. And the use of surveillance equipment at ICOI is not only uncommon, but expressly forbidden.
Our constitutional protection of religious observance supports finding a reasonable expectation of privacy in such a sacred space, where privacy concerns are acknowledged and protected, especially during worship and other religious observance. Cf. Mockaitis v. Harcleroad, 104 F.3d 1522, 1533 (9th Cir. 1997) (holding that, based in part on “the nation’s history of respect for religion in general,” a priest had a reasonable expectation of privacy in his conversation with an individual during confession), overruled on other grounds by City of Boerne v. Flores, 521 U.S. 507 (1997). Thus, Plaintiffs’ expectation that their conversations in the mosque prayer hall would be confidential among participants (unless shared by one of them with others), and so would not be intercepted by recording devices planted by absent government agents was objectively reasonable.
Finally, “[w]here the materials sought to be seized may be protected by the First Amendment, the requirements of the Fourth Amendment must be applied with ‘scrupulous exactitude.’ ” Zurcher v. Stanford Daily, 436 U.S. 547, 564 (1978) (quoting Stanford v. Texas, 379 U.S. 476, 485 (1965)). “National security cases,” like the one here, “often reflect a convergence of First and Fourth Amendment values not present in cases of ‘ordinary’ crime.” United States v. U.S. District Court (Keith), 407 U.S. 297, 313 (1972). “Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy. . . . ” Id. at 314.

33a
Accordingly, we hold that Plaintiffs had a reasonable expectation of privacy that their conversations in the mosque prayer hall would not be covertly recorded by a government agent not party to the conversations.
As of 2006 and 2007, however, no federal or state court decision had held that individuals generally have a reasonable expectation of privacy from surveillance in places of worship. Our court had declined to read Katz as established authority “for the proposition that a reasonable expectation of privacy attaches to church worship services open to the public.” The Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 527 (9th Cir. 1989). Noting that there was a lack of clearly established law so concluding, Presbyterian Church held that Immigration and Naturalization Service (“INS”) officials were entitled to qualified immunity from a Fourth Amendment challenge to undercover electronic surveillance of church services conducted without a warrant and without probable cause. Id. No case decided between Presbyterian Church and the incidents giving rise to this case decided otherwise. And no case decided during that period addressed circumstances more like those here, in which there are some specific manifestations of an expectation of privacy in the particular place of worship. Arguably pertinent was Mockaitis, but that case concerned the confession booth, not the church premises generally. 104 F.3d at 1533. The circumstances here fall between Presbyterian Church and Mockaitis, so there was no clearly established law here applicable. The Agent Defendants are thus entitled to qualified immunity as to this category of surveillance.

34a
C. Recordings Made by Planted Devices
It was, of course, clearly established in 2006 and 2007 that individuals have a reasonable expectation of privacy from covert recording of conversations in their homes, cars, and offices, and on their phones. See, e.g., Kyllo, 533 U.S. at 31 (home); New York v. Class, 475 U.S. 106, 115 (1986) (cars); Katz, 389 U.S. at 360-61 (Harlan, J., concurring) (enclosed telephone booths); Taketa, 923 F.2d at 673 (office); McIntyre, 582 F.2d at 1223-24 (office). The Agent Defendants accept these wellestablished legal propositions. But they maintain that the complaint’s allegations that the FBI planted electronic surveillance equipment in Fazaga’s office and AbdelRahim’s house, car, and phone are too conclusory to satisfy Iqbal’s plausibility standard, and so do not adequately allege on the merits a violation of Plaintiffs’ rights under FISA. See al-Kidd, 563 U.S. at 735; Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). We cannot agree.
Plaintiffs offer sufficient well-pleaded facts to substantiate their allegation that some of the Agent Defendants—Allen and Armstrong—were responsible for planting devices in AbdelRahim’s house. Specifically, the complaint details one occasion on which Allen and Armstrong asked Monteilh about something that had happened in AbdelRahim’s house that Monteilh had not yet communicated to them, and explained that they knew about it because they had audio surveillance in the house.
Plaintiffs also allege sufficient facts with regard to those two Agent Defendants in support of their allegation of electronic surveillance of Fazaga’s office in the OCIF mosque in Mission Viejo: Allen and Armstrong

35a
told Monteilh that electronic surveillance was “spread indiscriminately” across “at least eight area mosques including ICOI, and mosques in Tustin, Mission Viejo, Culver City, Lomita, West Covina, and Upland,” and that “they could get in a lot of trouble if people found out what surveillance they had in the mosques.” They also instructed Monteilh to use a video camera hidden in a shirt button to record the interior of OCIF and “get a sense of the schematics of the place—entrances, exits, rooms, bathrooms, locked doors, storage rooms, as well as security measures and whether any security guards were armed.” Armstrong later told Monteilh that he and Allen used the information he recorded to enter OCIF.
As to Tidwell, Walls, and Rose, however, the complaint does not plausibly allege their personal involvement with respect to the planted devices.20 The complaint details Tidwell, Walls, and Rose’s oversight of Monteilh, including that they read his daily notes and were apprised, through Allen and Armstrong, of the information he collected. But the complaint never alleges that Monteilh was involved in planting devices in AbdelRahim’s house, car, or phone, or in Fazaga’s office; those actions are attributed only to unnamed FBI agents.
20 Because we concluded with respect to the first two categories of surveillance either that Plaintiffs had no reasonable expectation of privacy or that the expectation was not clearly established in the case law at the pertinent time, we reach the question whether Plaintiffs plausibly allege the personal involvement of Tidwell, Wall, and Rose only with respect to the third category of surveillance.

36a
The complaint also offers general statements that Tidwell, Walls, and Rose supervised Allen and Armstrong.21 But “[g]overnment officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.” Iqbal, 556 U.S. at 676. Instead, “a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” Id. Plaintiffs have not done so as to this category of surveillance with regard to Tidwell, Walls, and Rose. The complaint does not allege that the supervisors knew of, much less ordered or arranged for, the planting of the recording devices in AbdelRahim’s home or Fazaga’s office, so the supervisors are entitled to qualified immunity as to that surveillance. See, e.g., Chavez v. United States, 683 F.3d 1102, 1110 (9th Cir. 2012); Ortez v. Washington County, 88 F.3d 804, 809 (9th Cir. 1996).
In sum, Plaintiffs allege a FISA claim against Allen and Armstrong for recordings made by devices planted by FBI agents in AbdelRahim’s house and Fazaga’s office. As to all other categories of surveillance, the Agent Defendants either did not violate FISA; are entitled to qualified immunity on the FISA claim because Plaintiffs’ reasonable expectation of privacy was not clearly established; or were not plausibly alleged in the
21 The relevant allegations were only that Walls and Rose “actively monitored, directed, and authorized the actions of Agents Allen and Armstrong and other agents at all times relevant in this action, for the purpose of surveilling Plaintiffs and other putative class members because they were Muslim” and that Tidwell “authorized and actively directed the actions of Agents Armstrong, Allen, Rose, Walls, and other agents.”

37a
complaint to have committed any FISA violation that may have occurred.
II. The State Secrets Privilege and FISA Preemption
Having addressed the only claim to survive Defendants’ motions to dismiss in the district court, we turn to the district court’s dismissal of the remaining claims pursuant to the state secrets privilege.22 Plaintiffs argue that reversal is warranted “on either of two narrower grounds.” First, Plaintiffs argue that, at this preliminary stage, the district court erred in concluding that further litigation would require the disclosure of privileged information. Second, Plaintiffs maintain that the district court should have relied on FISA’s alternative procedures for handling sensitive national security information. Because we agree with Plaintiffs’ second argument, we do not decide the first. We therefore need not review the Government’s state secrets claim to decide whether the standard for dismissal at this juncture—whether the district court properly “determine[d] with certainty . . . that litigation must be limited or cut off in order to protect state secrets, even before any discovery or evidentiary requests have been made,” Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1081 (9th Cir. 2010) (en banc)—has been met.
The initial question as to Plaintiffs’ second argument is whether the procedures established under FISA for adjudicating the legality of challenged electronic surveillance replace the common law state secrets privilege
22 Plaintiffs do not dispute at this juncture the district court’s conclusion that the information over which the Attorney General asserted the state secrets privilege indeed comes within the privilege. We therefore assume as much for present purposes.

38a
with respect to such surveillance to the extent that privilege allows the categorical dismissal of causes of action. The question is a fairly novel one. We are the first federal court of appeals to address it. Only two district courts, both in our circuit, have considered the issue. Those courts both held that FISA “displace[s] federal common law rules such as the state secrets privilege with regard to matters within FISA’s purview.” Jewel v. NSA, 965 F. Supp. 2d 1090, 1105-06 (N.D. Cal. 2013); accord In re NSA Telecomms. Records Litig. (In re NSA), 564 F. Supp. 2d 1109, 1117-24 (N.D. Cal. 2008). We rely on similar reasoning to that in those district court decisions, but reach a narrower holding as to the scope of FISA preemption.
Our analysis of this issue proceeds as follows. First, we offer a brief review of the state secrets privilege. Second, we discuss one reason why the district court should not have dismissed the search claims based on the privilege. Third, we explain why FISA displaces the dismissal remedy of the common law state secrets privilege as applied to electronic surveillance generally. Then we review the situations in which FISA’s procedures under § 1806(f ) apply, including affirmative constitutional challenges to electronic surveillance. Finally, we explain why the present case fits at least one of the situations in which FISA’s procedures apply.
Before we go on, we emphasize that although we hold that Plaintiffs’ electronic surveillance claims are not subject to outright dismissal at the pleading stage because FISA displaces the state secrets privilege, the FISA procedure is, not surprisingly, extremely protective of government secrecy. Under that procedure, Plaintiffs’ religion claims will not go forward under the

39a
open and transparent processes to which litigants are normally entitled. Instead, in the interest of protecting national security, the stringent FISA procedures require severe curtailment of the usual protections afforded by the adversarial process and due process. See, e.g., Yamada v. Nobel Biocare Holding AG, 825 F.3d 536, 545 (9th Cir. 2016) (holding that the district court’s use of ex parte, in camera submissions to support its fee order violated defendants’ due process rights); Intel Corp. v. Terabyte Int’l, Inc., 6 F.3d 614, 623 (9th Cir. 1993) (same); MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986) (same). As it is Plaintiffs who have invoked the FISA procedures, we proceed on the understanding that they are willing to accept those restrictions to the degree they are applicable as an alternative to dismissal, and so may not later seek to contest them.23
A. The State Secrets Privilege
“The Supreme Court has long recognized that in exceptional circumstances courts must act in the interest of the country’s national security to prevent disclosure of state secrets, even to the point of dismissing a case entirely.” Jeppesen, 614 F.3d at 1077 (citing Totten v. United States, 92 U.S. 105, 107 (1876)). Neither the Supreme Court nor this court has precisely delineated what constitutes a state secret. Reynolds referred to “military matters which, in the interest of national security, should not be divulged.” 345 U.S. at 10. Jeppesen added that not all classified information is necessarily privileged under Reynolds. 614 F.3d at 1082. The
23 We discuss how the district court is to apply the FISA procedures to Plaintiffs’ surviving claims on remand in infra Part V.

40a
state secrets privilege has been held to apply to information that would result in “impairment of the nation’s defense capabilities, disclosure of intelligence-gathering methods or capabilities, and disruption of diplomatic relations with foreign governments, or where disclosure would be inimical to national security.” Black v. United States, 62 F.3d 1115, 1118 (8th Cir. 1995) (citations and internal quotation marks omitted). But courts have acknowledged that terms like “military or state secrets” are “amorphous in nature,” id. (citation omitted); the phrase “inimical to national security” certainly is. And although purely domestic investigations with no international connection do not involve state secrets, we recognize that the contours of the privilege are perhaps even more difficult to draw in a highly globalized, post-9/11 environment, where the lines between foreign and domestic security interests may be blurred.
We do not attempt to resolve the ambiguity or to explain definitively what constitutes a “state secret.” But we note the ambiguity nonetheless at the outset, largely as a reminder that, as our court has previously noted, “[s]imply saying ‘military secret,’ ‘national security’ or ‘terrorist threat’ or invoking an ethereal fear that disclosure will threaten our nation is insufficient to support the privilege.” Al-Haramain Islamic Found., Inc. v. Bush (Al-Haramain I), 507 F.3d 1190, 1203 (9th Cir. 2007).
Created by federal common law, the modern state secrets doctrine has two applications: the Totten bar and the Reynolds privilege. The Totten bar is invoked “ ‘where the very subject matter of the action’ is ‘a matter of state secret.’ ” Id. at 1077 (quoting Reynolds, 345 U.S. at 11 n.26). It “completely bars adjudication of

41a
claims premised on state secrets.” Id.; see also Totten, 95 U.S. at 106-07. The Reynolds privilege, by contrast, “is an evidentiary privilege rooted in federal common law.” Kasza v. Browner, 133 F.3d 1159, 1167 (9th Cir. 1998); see also Gen. Dynamics Corp. v. United States, 563 U.S. 478, 485 (2011). It “may be asserted at any time,” and successful assertion “will remove the privileged evidence from the litigation.” Jeppesen, 614 F.3d at 1079-80.
Here, after the Attorney General asserted the Reynolds privilege and the Government submitted both public and classified declarations setting out the parameters of its state secrets contention, the Government Defendants requested dismissal of Plaintiffs’ religion claims in toto—but not the Fourth Amendment and FISA claims —at the pleading stage. “Dismissal at the pleading stage under Reynolds is a drastic result and should not be readily granted.” Jeppesen, 614 F.3d at 1089. Only “if state secrets are so central to a proceeding that it cannot be litigated without threatening their disclosure” is dismissal the proper course. Id. at 1081 (quoting El-Masri v. United States, 479 F.3d 296, 308 (4th Cir. 2007)). Because there is a strong interest in allowing otherwise meritorious litigation to go forward, the court’s inquiry into the need for the secret information should be specific and tailored, not vague and general. See id. at 1081-82; In re Sealed Case, 494 F.3d 139, 14454 (D.C. Cir. 2007).
Specifically, the Reynolds privilege will justify dismissal of the action in three circumstances: (1) if “the plaintiff cannot prove the prima facie elements of her claim with nonprivileged evidence”; (2) if “the privilege

42a
deprives the defendant of information that would otherwise give the defendant a valid defense to the claim”; and (3) if “privileged evidence” is “inseparable from nonprivileged information that will be necessary to the claims or defenses” such that “litigating the case to a judgment on the merits would present an unacceptable risk of disclosing state secrets.” Jeppesen, 614 F.3d at 1083 (citations omitted). The district court assumed that Plaintiffs could make a prima facie case without resorting to state secrets evidence, but determined that the second and third circumstances exist in this case and require dismissal.
B. The District Court’s Dismissal of the Search Claims Based on the State Secrets Privilege
As a threshold matter, before determining whether FISA displaces the state secrets privilege with regard to electronic surveillance, we first consider which of Plaintiffs’ claims might otherwise be subject to dismissal under the state secrets privilege. Although the Government expressly did not request dismissal of the Fourth Amendment and FISA claims based on the privilege, the district court nonetheless dismissed the Fourth Amendment claim on that basis. That was error.
The Government must formally claim the Reynolds privilege. Reynolds, 345 U.S. at 7-8. The privilege is “not simply an administrative formality” that may be asserted by any official. Jeppesen, 614 F.3d at 1080 (quoting United States v. W.R. Grace, 526 F.3d 499, 50708 (9th Cir. 2008) (en banc)). Rather, the formal claim must be “lodged by the head of the department which has control over the matter.” Reynolds, 345 U.S. at 8. The claim must “reflect the certifying official’s personal

43a
judgment; responsibility for [asserting the privilege] may not be delegated to lesser-ranked officials.” Jeppesen, 614 F.3d at 1080. And the claim “must be presented in sufficient detail for the court to make an independent determination of the validity of the claim of privilege and the scope of the evidence subject to the privilege.” Id. Such unusually strict procedural requirements exist because “[t]he privilege ‘is not to be lightly invoked,’ ” especially when dismissal of the entire action is sought. Id. (quoting Reynolds, 345 U.S. at 7).
Here, although the Government has claimed the Reynolds privilege over certain state secrets, it has not sought dismissal of the Fourth Amendment and FISA claims based on its invocation of the privilege. In light of that position, the district court should not have dismissed those claims. In doing so, its decision was inconsistent with Jeppesen’s observation that, “[i]n evaluating the need for secrecy, ‘we acknowledge the need to defer to the Executive on matters of foreign policy and national security and surely cannot legitimately find ourselves second guessing the Executive in this arena.’ ” 614 F.3d at 1081-82 (quoting Al-Haramain I, 507 F.3d at 1203). Just as the Executive is owed deference when it asserts that exclusion of the evidence or dismissal of the case is necessary to protect national security, so the Executive is necessarily also owed deference when it asserts that national security is not threatened by litigation.
Indeed, Jeppesen cautioned that courts should work “to ensure that the state secrets privilege is asserted no more frequently and sweepingly than necessary.” Id. at 1082 (quoting Ellsberg v. Mitchell, 709 F.2d 51, 58

44a
(D.C. Cir. 1983)). Dismissing claims based on the privilege where the Government has expressly told the court it is not necessary to do so—and, in particular, invoking the privilege to dismiss, at the pleading stage, claims the Government has expressly told the court it need not dismiss on grounds of privilege—cuts directly against Jeppesen’s call for careful, limited application of the privilege.
Although the Government Defendants expressly did not request dismissal of the search claims under the state secrets privilege, the Agent Defendants did so request. In declining to seek dismissal of the search claims based on the state secrets privilege, the Government explained:
At least at this stage of the proceedings, sufficient non-privileged evidence may be available to litigate these claims should they otherwise survive motions to dismiss on nonprivilege grounds. The FBI has previously disclosed in a separate criminal proceeding that Monteilh collected audio and video information for the FBI, and some of that audio and video information was produced in that prior case. The FBI has been reviewing additional audio and video collected by Monteilh for possible disclosure in connection with further proceedings on the issue of whether the FBI instructed or permitted Monteilh to leave recording devices unattended in order to collect non-consenting communications. The FBI expects that the majority of the audio and video will be available in connection with further proceedings. Thus, while it remains possible that the need to protect properly privileged national security information

45a
might still foreclose litigation of these claims, at present the FBI and official capacity defendants do not seek to dismiss these claims based on the privilege assertion.
The Agent Defendants note that the Government focuses on the public disclosure of recordings collected by Monteilh, and point out that Plaintiffs also challenge surveillance conducted without Monteilh’s involvement —namely, the planting of recording devices by FBI agents in Fazaga’s office and AbdelRahim’s home, car, and phone. Allegations concerning the planting of recording devices by FBI agents other than Monteilh, the Agent Defendants argue, are the “sources and methods” discussed in the Attorney General’s invocation of the privilege. The Agent Defendants thus maintain that because the Government’s reasons for not asserting the privilege over the search claims do not apply to all of the surveillance encompassed by the search claims, dismissal as to the search claims is in fact necessary.
The Agent Defendants, however, are not uniquely subject to liability for the planted devices. The Fourth Amendment claim against the Government Defendants likewise applies to that category of surveillance. See infra Part III.A. The Agent Defendants—officials sued in their individual capacities—are not the protectors of the state secrets evidence; the Government is. Accordingly, and because the Agent Defendants have not identified a reason they specifically require dismissal to protect against the harmful disclosure of state se-

46a
crets where the Government does not, we decline to accept their argument that the Government’s dismissal defense must be expanded beyond the religion claims.24
In short, in determining sua sponte that particular claims warrant dismissal under the state secrets privilege, the district court erred. For these reasons, we will not extend FISA’s procedures to challenges to the lawfulness of electronic surveillance to the degree the Government agrees that such challenges may be litigated in accordance with ordinary adversarial procedures without compromising national security.
C. FISA Displacement of the State Secrets Privilege
Before the enactment of FISA in 1978, foreign intelligence surveillance and the treatment of evidence implicating state secrets were governed purely by federal common law. Federal courts develop common law “in the absence of an applicable Act of Congress.” City of Milwaukee v. Illinois, 451 U.S. 304, 313 (1981). “Federal common law is,” however, “a ‘necessary expedient’ and when Congress addresses a question previously governed by a decision rested on federal common law the need for such an unusual exercise of lawmaking by federal courts disappears.” Id. (citation omitted). Once “the field has been made the subject of comprehensive
24 Although the Government may assert the state secrets privilege even when it is not a party to the case, see Jeppesen, 614 F.3d at 1080, we have not found—and the Agent Defendants have not cited —any case other than the one at hand in which a court granted dismissal under the privilege as to non-Government defendants, notwithstanding the Government’s assertion that the claims at issue may be litigated with nonprivileged information.

47a
legislation or authorized administrative standards,” federal common law no longer applies. Id. (quoting Texas v. Pankey, 441 F.2d 236, 241 (10th Cir. 1971)).
To displace federal common law, Congress need not “affirmatively proscribe[] the use of federal common law.” Id. at 315. Rather, “to abrogate a common-law principle, the statute must ‘speak directly’ to the question addressed by the common law.” United States v. Texas, 507 U.S. 529, 534 (1993) (quoting Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625 (1978)). As we now explain, in enacting FISA, Congress displaced the common law dismissal remedy created by the Reynolds state secrets privilege as applied to electronic surveillance within FISA’s purview.25
We have specifically held that because “the state secrets privilege is an evidentiary privilege rooted in federal common law . . . the relevant inquiry in deciding if [a statute] preempts the state secrets privilege is whether the statute ‘[speaks] directly to [the] question otherwise answered by federal common law.’ ” Kasza, 133 F.3d at 1167 (second and third alterations in original) (quoting County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 236-37 (1985)).26 Nonetheless, the Government maintains, in a vague and short paragraph in its brief, that Congress cannot displace the state secrets evidentiary privilege absent a clear statement, and
25 Our holding concerns only the Reynolds privilege, not the Totten justiciability bar.
26 Applying this principle, Kasza concluded that section 6001 of the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6961, did not preempt the state secrets privilege as to RCRA regulatory material, as “the state secrets privilege and § 6001 have different purposes.” 133 F.3d at 1168.

48a
that, because Plaintiffs cannot point to a clear statement, “principles of constitutional avoidance” require rejecting the conclusion that FISA’s procedures displace the dismissal remedy of the state secrets privilege with regard to electronic surveillance.
In support of this proposition, the Government cites two out-of-circuit cases, El-Masri v. United States, 479 F.3d 296, and Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991). El-Masri does not specify a clear statement rule; it speaks generally about the constitutional significance of the state secrets privilege, while recognizing its common law roots. 479 F.3d at 303-04. Armstrong holds generally that the clear statement rule must be applied “to statutes that significantly alter the balance between Congress and the President,” but does not apply that principle to the state secrets privilege. 924 F.2d at 289. So neither case is directly on point.
Under our circuit’s case law, a clear statement in the sense of an explicit abrogation of the common law state secrets privilege is not required to decide that a statute displaces the privilege. Rather, if “the statute ‘[speaks] directly to [the] question otherwise answered by federal common law,’ ” that is sufficient. Kasza, 133 F.3d at 1167 (second and third alterations in original) (quoting Oneida, 470 U.S. at 236-37); see also Texas, 507 U.S. at 534. Although we, as a three-judge panel, could not hold otherwise, we would be inclined in any event to reject any clear statement rule more stringent than Kasza’s “speak directly to the question” requirement in this context.
The state secrets privilege may have “a constitutional ‘core’ or constitutional ‘overtones,’ ” In re NSA, 564 F. Supp. 2d at 1124, but, at bottom, it is an evidentiary

49a
rule rooted in common law, not constitutional law. The Supreme Court has so emphasized, explaining that Reynolds “decided a purely evidentiary dispute by applying evidentiary rules.” Gen. Dynamics, 563 U.S. at 485. To require express abrogation, by name, of the state secrets privilege would be inconsistent with the evidentiary roots of the privilege.
In any event, the text of FISA does speak quite directly to the question otherwise answered by the dismissal remedy sometimes required by the common law state secrets privilege. Titled “In camera and ex parte review by district court,” § 1806(f ) provides:
Whenever a court or other authority is notified pursuant to subsection (c) or (d) of this section, or whenever a motion is made pursuant to subsection (e) of this section, or whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter, the United States district court or, where the motion is made before another authority, the United States district court in the same district as the authority, shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine

50a
whether the surveillance of the aggrieved person was lawfully authorized and conducted. In making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.
50 U.S.C. § 1806(f ) (emphasis added).
The phrase “notwithstanding any other law,” the several uses of the word “whenever,” and the command that courts “shall” use the § 1806(f ) procedures to decide the lawfulness of the surveillance if the Attorney General asserts that national security is at risk, confirm Congress’s intent to make the in camera and ex parte procedure the exclusive procedure for evaluating evidence that threatens national security in the context of electronic surveillance-related determinations. Id. (emphasis added). That mandatory procedure necessarily overrides, on the one hand, the usual procedural rules precluding such severe compromises of the adversary process and, on the other, the state secrets evidentiary dismissal option. See H.R. Rep. No. 95-1283, pt. 1, at 91 (1978) (“It is to be emphasized that, although a number of different procedures might be used to attack the legality of the surveillance, it is the procedures set out in subsections (f ) and (g) ‘notwithstanding any other law’ that must be used to resolve the question.”).27
27 Whether “notwithstanding” language in a given statute should be understood to supersede all otherwise applicable laws or read more narrowly to override only previously existing laws depends on

51a
The procedures set out in § 1806(f ) are animated by the same concerns—threats to national security—that underlie the state secrets privilege. See Jeppesen, 614 F.3d at 1077, 1080. And they are triggered by a process—the filing of an affidavit under oath by the Attorney General—nearly identical to the process that triggers application of the state secrets privilege, a formal assertion by the head of the relevant department. See id. at 1080. In this sense, § 1806(f ) “is, in effect, a ‘codification of the state secrets privilege for purposes of relevant cases under FISA, as modified to reflect Congress’s precise directive to the federal courts for the handling of [electronic surveillance] materials and information with purported national security implications.’ ” Jewel, 965 F. Supp. 2d at 1106 (quoting In re NSA, 564 F. Supp. 2d at 1119); see also In re NSA, 564 F. Supp. 2d at 1119 (holding that “the Reynolds protocol has no role where section 1806(f ) applies”). That § 1806(f ) requires in camera and ex parte review in the exact circumstance that could otherwise trigger dismissal of the case demonstrates that § 1806(f ) supplies an alternative mechanism for the consideration of electronic state secrets evidence. Section 1806(f ) therefore eliminates the need to dismiss the case entirely because of the absence of any legally sanctioned mechanism for a major modification of ordinary judicial procedures—in camera, ex parte decisionmaking.
This conclusion is consistent with the overall structure of FISA. FISA does not concern Congress and
the overall context of the statute. See United States v. Novak, 476 F.3d 1041, 1046-47 (9th Cir. 2007) (en banc). Here, the distinction does not matter, as the Reynolds common law state secrets evidentiary privilege preceded the enactment of FISA.

52a
the President alone. Instead, the statute creates “a comprehensive, detailed program to regulate foreign intelligence surveillance in the domestic context.” In re NSA, 564 F. Supp. 2d at 1118. FISA “set[s] out in detail roles for all three branches of government, providing judicial and congressional oversight of the covert surveillance activities by the executive branch combined with measures to safeguard secrecy necessary to protect national security.” Id. at 1115. And it provides rules for the executive branch to follow in “undertak[ing] electronic surveillance and physical searches for foreign intelligence purposes in the domestic sphere.” Id.
Moreover, FISA establishes a special court to hear applications for and grant orders approving electronic surveillance under certain circumstances. See 50 U.S.C. § 1803. FISA also includes a private civil enforcement mechanism, see id. § 1810, and sets out a procedure by which courts should consider evidence that could harm the country’s national security, see id. § 1806(f ). The statute thus broadly involves the courts in the regulation of electronic surveillance relating to national security, while devising extraordinary, partially secret judicial procedures for carrying out that involvement. And Congress expressly declared that FISA, along with the domestic law enforcement electronic surveillance provisions of the Wiretap Act and the Stored Communications Act, are “the exclusive means by which electronic surveillance . . . may be conducted.” 18 U.S.C. § 2511(2)(f ).
The legislative history of FISA confirms Congress’s intent to displace the remedy of dismissal for the common law state secrets privilege. FISA was enacted in response to “revelations that warrantless electronic sur-

53a
veillance in the name of national security ha[d] been seriously abused.” S. Rep. No. 95-604, pt. 1, at 7 (1978), reprinted in 1978 U.S.C.C.A.N. 3904, 3908. The Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, a congressional task force formed in 1975 and known as the Church Committee, exposed the unlawful surveillance in a series of investigative reports. The Church Committee documented “a massive record of intelligence abuses over the years,” in which “the Government ha[d] collected, and then used improperly, huge amounts of information about the private lives, political beliefs and associations of numerous Americans.” S. Select Comm. to Study Governmental Operations with Respect to Intelligence Activities, Book II: Intelligence Activities and the Rights of Americans, S. Rep. No. 94-755, at 290 (1976). The Committee concluded that these abuses had “undermined the constitutional rights of citizens . . . primarily because checks and balances designed by the framers of the Constitution to assure accountability [were not] applied.” Id. at 289.
Urging “fundamental reform,” id. at 289, the Committee recommended legislation to “make clear to the Executive branch that it will not condone, and does not accept, any theory of inherent or implied authority to violate the Constitution,” id. at 297. Observing that the Executive would have “no such authority after Congress has . . . covered the field by enactment of a comprehensive legislative charter” that would “provide the exclusive legal authority for domestic security activities,” id. at 297, the Committee recommended that Congress create civil remedies for unlawful surveillance, both to “afford effective redress to people who are injured by

54a
improper federal intelligence activity” and to “deter improper intelligence activity,” id. at 336. Further, in recognition of the potential interplay between promoting accountability and ensuring security, the Committee noted its “belie[f] that the courts will be able to fashion discovery procedures, including inspection of material in chambers, and to issue orders as the interests of justice require, to allow plaintiffs with substantial claims to uncover enough factual material to argue their case, while protecting the secrecy of governmental information in which there is a legitimate security interest.” Id. at 337.
FISA implemented many of the Church Committee’s recommendations. In striking a careful balance between assuring the national security and protecting against electronic surveillance abuse, Congress carefully considered the role previously played by courts, and concluded that the judiciary had been unable effectively to achieve an appropriate balance through federal common law:
[T]he development of the law regulating electronic surveillance for national security purposes has been uneven and inconclusive. This is to be expected where the development is left to the judicial branch in an area where cases do not regularly come before it. Moreover, the development of standards and restrictions by the judiciary with respect to electronic surveillance for foreign intelligence purposes accomplished through case law threatens both civil liberties and the national security because that development occurs generally in ignorance of the facts, circumstances, and techniques of foreign intelligence electronic surveillance not present in the particular case

55a
before the court. . . . [T]he tiny window to this area which a particular case affords provides inadequate light by which judges may be relied upon to develop case law which adequately balances the rights of privacy and national security.
H. Rep. No. 95-1283, pt. 1, at 21. FISA thus represents an effort to “provide effective, reasonable safeguards to ensure accountability and prevent improper surveillance,” and to “strik[e] a fair and just balance between protection of national security and protection of personal liberties.” S. Rep. No. 95-604, pt. 1, at 7.
In short, the procedures outlined in § 1806(f ) “provide[] a detailed regime to determine whether surveillance ‘was lawfully authorized and conducted,’ ” AlHaramain I, 507 F.3d at 1205 (citing 50 U.S.C. § 1806(f )), and constitute “Congress’s specific and detailed description for how courts should handle claims by the government that the disclosure of material relating to or derived from electronic surveillance would harm national security,” Jewel, 965 F. Supp. 2d at 1106 (quoting In re NSA, 564 F. Supp. 2d at 1119). Critically, the FISA approach does not publicly expose the state secrets. It does severely compromise Plaintiffs’ procedural rights, but not to the degree of entirely extinguishing potentially meritorious substantive rights.
D. Applicability of FISA’s § 1806(f ) Procedures to Affirmative Legal Challenges to Electronic Surveillance
Having determined that, where they apply, § 1806(f )’s procedures displace a dismissal remedy for the Reynolds state secrets privilege, we now consider

56a
whether § 1806(f )’s procedures apply to the circumstances of this case.
By the statute’s terms, the procedures set forth in § 1806(f ) are to be used—where the Attorney General files the requisite affidavit—in the following circumstances:
[w]henever a court or other authority is notified pursuant to subsection (c) or (d) of this section, or whenever a motion is made pursuant to subsection (e) of this section, or whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter.
50 U.S.C. § 1806(f ). From this text and the crossreferenced subsections, we derive three circumstances in which the in camera and ex parte procedures are to be used: when (1) a governmental body gives notice of its intent “to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, against an aggrieved person, any information obtained or derived from an electronic surveillance,” id. § 1806(c) (emphases added);28 (2) an aggrieved person moves to suppress the
28 The text of § 1806(f ) refers to notice “pursuant to subsection (c) or (d) of this section.” 50 U.S.C. § 1806(f ) (emphasis added). Section 1806(d) describes verbatim the same procedures as contained in

57a
evidence, id. § 1806(e); or (3) an aggrieved person makes “any motion or request . . . pursuant to any other statute or rule . . . to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter,” id. § 1806(f ) (emphasis added).
The case at hand fits within the contemplated circumstances in two respects. First, although the Government has declined to confirm or deny in its public submissions that the information with respect to which it has invoked the state secrets privilege was obtained or derived from FISA-covered electronic surveillance of Plaintiffs, see id. § 1806(c), the complaint alleges that it was. The Attorney General’s privilege assertion encompassed, among other things, “any information obtained during the course of ” Operation Flex, the “results of the investigation,” and “any results derived from” the “sources and methods” used in Operation Flex. It is precisely because the Government would like to use this information to defend itself that it has asserted the state secrets privilege. The district court’s dismissal ruling was premised in part on the potential use of state secrets material to defend the case. Because the district court made the ruling after reviewing the surveillance materials, it is aware whether the allegations in the complaint concerning electronic surveillance are factually supported. Of course, if they are not, then the district court
§ 1806(c), except as applied to States and political subdivisions rather than to the United States. Id. § 1806(d). For convenience, we refer only to § 1806(c) in this opinion, but our analysis applies to § 1806(d) with equal force.

58a
can decide on remand that the FISA procedures are inapplicable. For purposes of this opinion, we proceed on the premise that the Attorney General’s invocation of the state secrets privilege relied on the potential use of material obtained or derived from electronic surveillance, as alleged in the complaint.
Second, in their prayer for relief, Plaintiffs have requested injunctive relief “ordering Defendants to destroy or return any information gathered through the unlawful surveillance program by Monteilh and/or Operation Flex described above, and any information derived from that unlawfully obtained information.” Plaintiffs thus have requested, in the alternative, to “obtain” information gathered during or derived from electronic surveillance. See id. § 1806(f ).
The Government disputes that FISA applies to this case. Its broader contention is that § 1806(f )’s procedures do not apply to any affirmative claims challenging the legality of electronic surveillance or the use of information derived from electronic surveillance, whether brought under FISA’s private right of action or any other constitutional provision, statute, or rule. Instead, the Government maintains, FISA’s procedures apply only when the government initiates the legal action, while the state secrets privilege applies when the government defends affirmative litigation brought by private parties.
The plain text and statutory structure of FISA provide otherwise. To begin, the language of the statute simply does not contain the limitations the Government suggests. As discussed above, § 1806(f )’s procedures are to be used in any one of three situations, each of which is separated in the statute by an “or.” See id. The first situation—when “the Government intends to enter

59a
into evidence or otherwise use or disclose information obtained or derived from an electronic surveillance . . . against an aggrieved person” in “any trial, hearing, or other proceeding,” id. § 1806(c) (emphasis added) —unambiguously encompasses affirmative as well as defensive challenges to the lawfulness of surveillance.29 The conduct governed by the statutory provision is the Government’s intended entry into evidence or other use or disclosure of information obtained or derived from electronic surveillance. “[A]gainst an aggrieved person” refers to and modifies the phrase “any information obtained or derived.” Id. As a matter of ordinary usage, the phrase “against an aggrieved person” cannot modify “any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States.” Id.
29 In full, § 1806(c) reads:
Whenever the Government intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, against an aggrieved person, any information obtained or derived from an electronic surveillance of that aggrieved person pursuant to the authority of this subchapter, the Government shall, prior to the trial, hearing, or other proceeding or at a reasonable time prior to an effort to so disclose or so use that information or submit it in evidence, notify the aggrieved person and the court or other authority in which the information is to be disclosed or used that the Government intends to so disclose or so use such information. 50 U.S.C. § 1806(c). Again, we refer to the text of § 1806(c) because § 1806(f )’s procedures apply “[w]henever a court or other authority is notified pursuant to subsection (c) or (d) of this section.” Id. § 1806(f ).

60a
Evidence—such as “any information obtained or derived from an electronic surveillance”—can properly be said to be “against” a party. See, e.g., U.S. Const. amend. V (“No person . . . shall be compelled in any criminal case to be a witness against himself. . . . ”); Miranda v. Arizona, 384 U.S. 436, 460 (1966) (“[O]ur accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth.” (emphasis added)). But a “trial, hearing, or other proceeding” is not for or against either party; such a proceeding is just an opportunity to introduce evidence. Also, as the phrase is set off by commas, “against an aggrieved person” is grammatically a separate modifier from the list of proceedings contained in § 1806(f ). Were the phrase meant to modify the various proceedings, there would be no intervening comma setting it apart.
The third situation—when a “motion or request is made by an aggrieved person pursuant to any other statute or rule . . . before any court . . . to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter,” id. § 1806(f )—also by its plain text encompasses affirmative challenges to the legality of electronic surveillance. When an aggrieved person makes such a motion or request, or the government notifies the aggrieved person and the court that it intends to use or disclose information obtained or derived from electronic surveillance, the statute requires a court to use § 1806(f )’s procedures “to determine whether the surveillance . . . was

61a
lawfully authorized and conducted.” Id. In other words, a court must “determine whether the surveillance was authorized and conducted in a manner which did not violate any constitutional or statutory right.” S. Rep. No. 95-604, pt. 1, at 57; accord S. Rep. No. 95-701, at 63.
The inference drawn from the text of § 1806 is bolstered by § 1810, which specifically creates a private right of action for an individual subjected to electronic surveillance in violation of FISA. FISA prohibits, for example, electronic surveillance of a U.S. person “solely upon the basis of activities protected by the first amendment to the Constitution of the United States.” 50 U.S.C. § 1805(a)(2)(A). Here, Plaintiffs allege they were surveilled solely on account of their religion. If true, such surveillance was necessarily unauthorized by FISA, and § 1810 subjects any persons who intentionally engaged in such surveillance to civil liability. It would make no sense for Congress to pass a comprehensive law concerning foreign intelligence surveillance, expressly enable aggrieved persons to sue for damages when that surveillance is unauthorized, see id. § 1810, and provide procedures deemed adequate for the review of national security-related evidence, see id. § 1806(f ), but not intend for those very procedures to be used when an aggrieved person sues for damages under FISA’s civil enforcement mechanism. Permitting a § 1810 claim to be dismissed on the basis of the state secrets privilege because the § 1806(f ) procedures are unavailable would dramatically undercut the utility of § 1810 in deterring FISA violations. Such a dismissal also would undermine the overarching goal of FISA more broadly—“curb[ing] the practice by which the Ex-

62a
ecutive Branch may conduct warrantless electronic surveillance on its own unilateral determination that national security justifies it.” S. Rep. No. 95-604, pt. 1, at 8.
FISA’s legislative history confirms that § 1806(f )’s procedures were designed to apply in both civil and criminal cases, and to both affirmative and defensive use of electronic surveillance evidence. The Senate bill initially provided a single procedure for criminal and civil cases, while the House bill at the outset specified two separate procedures for determining the legality of electronic surveillance.30 In the end, the conference committee adopted a slightly modified version of the Senate bill, agreeing “that an in camera and ex parte proceeding is appropriate for determining the lawfulness of electronic surveillance in both criminal and civil cases.” H.R. Rep. No. 95-1720, at 32.
In the alternative, the Government suggests that § 1806(f )’s procedures for the use of electronic surveillance in litigation are limited to affirmative actions brought directly under § 1810. We disagree. The § 1806(f ) procedures are expressly available, as well as
30 Under the House bill, in criminal cases there would be an in camera proceeding, and the court could, but need not, disclose the materials relating to the surveillance to the aggrieved person “if there were a reasonable question as to the legality of the suveillance [sic] and if disclosure would likely promote a more accurate determination of such legality, or if disclosure would not harm the national security.” H.R. Rep. No. 95-1720, at 31 (1978) (Conf. Rep.), reprinted in 1978 U.S.C.C.A.N. 4048, 4060. In civil suits, there would be an in camera and ex parte proceeding before a court of appeals, and the court would disclose to the aggrieved person the materials relating to the surveillance “only if necessary to afford due process to the aggrieved person.” Id. at 32.

63a
mandatory, for affirmative claims brought “by an aggrieved person pursuant to any . . . statute or rule of the United States . . . before any court . . . of the United States.” 50 U.S.C. § 1806(f ) (emphasis added). This provision was meant “to make very clear that these procedures apply whatever the underlying rule or statute” at issue, so as “to prevent these carefully drawn procedures from being bypassed by the inventive litigant using a new statute, rule or judicial construction.” H.R. Rep. No. 95-1283, pt. 1, at 91 (emphasis added).
Had Congress wanted to limit the use of § 1806(f )’s procedures only to affirmative claims alleging lack of compliance with FISA itself, it could have so specified, as it did in § 1809 and § 1810. Section 1810 creates a private right of action only for violations of § 1809. 50 U.S.C. § 1810. Section 1809 prohibits surveillance not authorized by FISA, the Wiretap Act, the Stored Communications Act, and the pen register statute. Id. § 1809(a). That § 1809 includes only certain, crossreferenced statutes while § 1810 is limited to violations of § 1809 contrasts with the broad language of § 1806(f ) as to the types of litigation covered—litigation “pursuant to any . . . statute or rule of the United States.” Id. § 1806(f ) (emphasis added).
Furthermore, if—as here—an aggrieved person brings a claim under § 1810 and a claim under another statute or the Constitution based on the same electronic surveillance as is involved in the § 1810 claim, it would make little sense for § 1806(f ) to require the court to consider in camera and ex parte the evidence relating to electronic surveillance for purposes of the claim under § 1810 of FISA but not permit the court to consider the exact same evidence in the exact same way for purposes

64a
of the non-FISA claim. Once the information has been considered by a federal judge in camera and ex parte, any risk of disclosure—which Congress necessarily considered exceedingly small or it would not have permitted such examination—has already been incurred. There would be no point in dismissing other claims because of that same concern.
We are not the first to hold that § 1806(f )’s procedures may be used to adjudicate claims beyond those arising under § 1810. The D.C. Circuit expressly so held in ACLU Foundation of Southern California v. Barr, 952 F.2d 457 (D.C. Cir. 1991):
When a district court conducts a § 1806(f ) review, its task is not simply to decide whether the surveillance complied with FISA. Section 1806(f ) requires the court to decide whether the surveillance was “lawfully authorized and conducted.” The Constitution is law. Once the Attorney General invokes § 1806(f ), the respondents named in that proceeding therefore must present not only their statutory but also their constitutional claims for decision.
Id. at 465; accord United States v. Johnson, 952 F.2d 565, 571-73, 571 n.4 (1st Cir. 1991) (using § 1806(f )’s in camera and ex parte procedures to review constitutional challenges to FISA surveillance).
In sum, the plain language, statutory structure, and legislative history demonstrate that Congress intended FISA to displace the state secrets privilege and its dismissal remedy with respect to electronic surveillance. Contrary to the Government’s contention, FISA’s § 1806(f ) procedures are to be used when an aggrieved

65a
person affirmatively challenges, in any civil case, the legality of electronic surveillance or its use in litigation, whether the challenge is under FISA itself, the Constitution, or any other law.31
31 The Agent Defendants suggest that using the § 1806 procedures would violate their Seventh Amendment jury trial right and their due process rights.
Any Seventh Amendment argument is premature. Any hypothetical interference with a jury trial would arise only if a series of contingencies occurred on remand. First, given our various rulings precluding certain of Plaintiffs’ claims and the narrow availability of Bivens remedies under current law, there are likely to be few, if any, remaining Bivens claims against the Agent Defendants. See infra Part I; supra Part III.B; supra Part IV.B. Second, as to any remaining claims against the Agent Defendants, the district court might determine that there was no unlawful surveillance after reviewing the evidence under the in camera, ex parte procedures, or the Agent Defendants may prevail on summary judgment. Moreover, it is possible that the district court’s determination of whether the surveillance was lawful will be a strictly legal decision—analogous to summary judgment—made on the record supplied by the government. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 336 (1979) (noting that procedural devices like summary judgment are not “inconsistent” with the Seventh Amendment).
Should the various contingencies occur and leave liability issues to be determined, the Agent Defendants are free at that time to raise their Seventh Amendment arguments on remand. But, as the Seventh Amendment issue was not decided by the district court, may never arise, and, if it does, may depend on the merits on exactly how it arises, we decline to address the hypothetical constitutional question now.
With respect to the Agent Defendants’ due process arguments, we and other courts have upheld the constitutionality of FISA’s in camera and ex parte procedures with regard to criminal defendants. See United States v. Abu-Jihaad, 630 F.3d 102, 117-29 (2d Cir. 2010); United States v. Damrah, 412 F.3d 618, 625 (6th Cir. 2005); United States v. Ott, 827 F.2d 473, 476-77, 477 n.5 (9th Cir. 1987); United

66a
E. Aggrieved Persons
We now consider more specifically whether FISA’s § 1806(f ) procedures may be used in this case. Because the procedures apply when evidence will be introduced “against an aggrieved person,” 50 U.S.C. § 1806(c), and when “any motion or request is made by an aggrieved person,” id. § 1806(f ), Plaintiffs must satisfy the definition of an “aggrieved person,” see id. § 1801(k).
We addressed the “aggrieved person” requirement in part in the discussion of Plaintiffs’ § 1810 claim against the Agent Defendants. As we there explained, because Fazaga had a reasonable expectation of privacy in his office, and AbdelRahim had a reasonable expectation of privacy in his home, car, and phone, Plaintiffs are properly considered aggrieved persons as to those categories of surveillance. See supra Part I.C. And although we noted that the Agent Defendants are entitled to qualified immunity on Plaintiffs’ FISA § 1810 claim with respect to the recording of conversation in the mosque prayer halls, Plaintiffs had a reasonable expectation of privacy in those conversations and thus are still properly considered aggrieved persons as to that category of surveillance as well. See supra Part I.B.
Again, because Plaintiffs are properly considered “aggrieved” for purposes of FISA, two of the situations referenced in § 1806(f ) are directly applicable here. The Government intends to use “information obtained or derived from an electronic surveillance” against Plaintiffs, who are
States v. Belfield, 692 F.2d 141, 148-49 (D.C. Cir. 1982); United States v. Nicholson, 955 F. Supp. 588, 590-92, 590 n.3 (E.D. Va. 1997) (collecting cases). Individual defendants in a civil suit are not entitled to more stringent protections than criminal defendants.

67a
“aggrieved person[s].” 50 U.S.C. § 1806(c). And Plaintiffs are “aggrieved person[s]” who have attempted “to discover or obtain applications or orders or other materials relating to electronic surveillance.” Id. § 1806(f ).
* * * *
We next turn to considering whether the claims other than the FISA § 1810 claim must be dismissed for reasons independent of the state secrets privilege, limiting ourselves to the arguments for dismissal raised in Defendants’ motions to dismiss.
III. Search Claims
In this part, we discuss (1) the Fourth Amendment injunctive relief claim against the official-capacity defendants; and (2) the Fourth Amendment Bivens claim against the Agent Defendants.
A. Fourth Amendment Injunctive Relief Claim Against the Official-Capacity Defendants
The Government’s primary argument for dismissal of the constitutional claims brought against the officialcapacity defendants, including the Fourth Amendment claim, is that the injunctive relief sought—the expungement of all records unconstitutionally obtained and maintained —is unavailable under the Constitution. Not so.
We have repeatedly and consistently recognized that federal courts can order expungement of records, criminal and otherwise, to vindicate constitutional rights.32
32 See, e.g., United States v. Sumner, 226 F.3d 1005, 1012 (9th Cir. 2000) (“A district court has the power to expunge a criminal record under . . . the Constitution itself.”); Burnsworth v. Gunderson, 179 F.3d 771, 775 (9th Cir. 1999) (holding that expungement of an

68a
The Privacy Act, 5 U.S.C. § 552a, which (1) establishes a set of practices governing the collection, maintenance, use, and dissemination of information about individuals maintained in records systems by federal agencies, and (2) creates federal claims for relief for violations of the Act’s substantive provisions, does not displace the availability of expungement relief under the Constitution.33
escape conviction from prison records was an appropriate remedy for a due process violation); Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1275 (9th Cir. 1998) (explaining that expungement of unconstitutionally obtained medical records “would be an appropriate remedy for the alleged violation”); United States v. Smith, 940 F.2d 395, 396 (9th Cir. 1991) (per curiam) (explaining that “recognized circumstances supporting expunction” include an unlawful or invalid arrest or conviction and government misconduct); Fendler v. U.S. Parole Comm’n, 774 F.2d 975, 979 (9th Cir. 1985) (“Federal courts have the equitable power ‘to order the expungement of Government records where necessary to vindicate rights secured by the Constitution or by statute.’ ” (quoting Chastain v. Kelley, 510 F.2d 1232, 1235 (D.C. Cir. 1975))); Maurer v. Pitchess, 691 F.2d 434, 437 (9th Cir. 1982) (“It is well settled that the federal courts have inherent equitable power to order ‘the expungement of local arrest records as an appropriate remedy in the wake of police action in violation of constitutional rights.’ ” (quoting Sullivan v. Murphy, 478 F.2d 938, 968 (D.C. Cir. 1973))); Shipp v. Todd, 568 F.2d 133, 134 (9th Cir. 1978) (“It is established that the federal courts have inherent power to expunge criminal records when necessary to preserve basic legal rights.” (quoting United States v. McMains, 540 F.2d 387, 389 (8th Cir. 1976))).
33 The cases cited by the Government to the contrary are inapposite. See City of Milwaukee, 451 U.S. at 314-16 (addressing the congressional displacement of federal common law through legislation, not the elimination of injunctive remedies available under the Constitution); Bush v. Lucas, 462 U.S. 367, 386-88 (1983) (discussing preclusion of a Bivens claim for damages where Congress had already designed a comprehensive remedial scheme, not whether a statute can displace a recognized constitutional claim for injunctive

69a
Previous cases involving claims brought under both the Privacy Act and the Constitution did not treat the Privacy Act as displacing a constitutional claim, but instead analyzed the claims separately.34 And the circuits that have directly considered whether the Privacy Act displaces parallel constitutional remedies have all concluded that a plaintiff may pursue a remedy under both the Constitution and the Privacy Act.35
In addition to its Privacy Act displacement theory, the Government contends that even if expungement relief is otherwise available under the Constitution, it is not available here, as Plaintiffs “advance no plausible claim of an ongoing constitutional violation.” Again, we disagree.
relief); Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 936-37 (D.C. Cir. 2003) (discussing the displacement of a common law right of access to public records by the Freedom of Information Act in a case not involving the Privacy Act or a claim for injunctive relief from an alleged ongoing constitutional violation).
34 See Hewitt v. Grabicki, 794 F.2d 1373, 1377, 1380 (9th Cir. 1986) (addressing separately a claim for damages under the Privacy Act and a procedural due process claim); Fendler, 774 F.2d at 979 (considering a prisoner’s Privacy Act claims and then, separately, his claim for expungement relief under the Constitution).
35 See Abdelfattah v. U.S. Dep’t of Homeland Sec., 787 F.3d 524, 534 (D.C. Cir. 2015) (“We have repeatedly recognized a plaintiff may request expungement of agency records for both violations of the Privacy Act and the Constitution.”); Clarkson v. IRS, 678 F.2d 1368, 1376 n.13 (11th Cir. 1982) (“[W]e of course do not intend to suggest that the enactment of the Privacy Act in any way precludes a plaintiff from asserting a constitutional claim for violation of his privacy or First Amendment rights. Indeed, several courts have recognized that a plaintiff is free to assert both Privacy Act and constitutional claims.”).

70a
This court has been clear that a determination that records were obtained and retained in violation of the Constitution supports a claim for expungement relief of existing records so obtained. As Norman-Bloodsaw explained:
Even if the continued storage, against plaintiffs’ wishes, of intimate medical information that was allegedly taken from them by unconstitutional means does not itself constitute a violation of law, it is clearly an ongoing “effect” of the allegedly unconstitutional and discriminatory testing, and expungement of the test results would be an appropriate remedy for the alleged violation. . . . At the very least, the retention of undisputedly intimate medical information obtained in an unconstitutional and discriminatory manner would constitute a continuing “irreparable injury” for purposes of equitable relief.
135 F.3d at 1275; see also Wilson v. Webster, 467 F.2d 1282, 1283-84 (9th Cir. 1972) (holding that plaintiffs had a right to show that records of unlawful arrests “should be expunged, for their continued existence may seriously and unjustifiably serve to impair fundamental rights of the persons to whom they relate”).
In short, expungement relief is available under the Constitution to remedy the alleged constitutional violations.36 Because the Government raises no other argument for dismissal of the Fourth Amendment injunctive relief claim, it should not have been dismissed.
36 We do not at this stage, of course, address whether Plaintiffs are actually entitled to such a remedy.

71a
B. Fourth Amendment Bivens Claim Against the Agent Defendants
Alleging that the Agent Defendants violated the Fourth Amendment, Plaintiffs seek monetary damages directly under the Constitution under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In Bivens, the Supreme Court “recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen’s constitutional rights.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). “The purpose of Bivens is to deter individual federal officers from committing constitutional violations.” Id. at 70.
Bivens itself concerned a Fourth Amendment violation by federal officers. As we have recognized, a Fourth Amendment damages claim premised on unauthorized electronic surveillance by FBI agents and their surrogates “fall[s] directly within the coverage of Bivens.” Gibson v. United States, 781 F.2d 1334, 1341 (9th Cir. 1986); see also Mitchell v. Forsyth, 472 U.S. 511, 513 (1985) (considering, under Bivens, an alleged “warrantless wiretap” conducted in violation of the Fourth Amendment). Recent cases, however, have severely restricted the availability of Bivens actions for new claims and contexts. See Ziglar v. Abbasi, 137 S. Ct. 1843, 1856-57 (2017).37
Here, the substance of Plaintiffs’ Fourth Amendment Bivens claim is identical to the allegations raised in their FISA § 1810 claim. Under our rulings regarding the reach of the § 1806(f ) procedures, almost all of the
37 The parties have not briefed before us the impact of Abbasi on the Bivens claims.

72a
search-and-seizure allegations will be subject to those procedures. Thus, regardless of whether a Bivens remedy is available, Plaintiffs’ underlying claim—that the Agent Defendants engaged in unlawful electronic surveillance violative of the Fourth Amendment—would proceed in the same way.
Moreover, if the Fourth Amendment Bivens claim proceeds, the Agent Defendants are entitled to qualified immunity on Plaintiffs’ Fourth Amendment Bivens claim to the same extent they are entitled to qualified immunity on Plaintiffs’ FISA claim. In both instances, the substantive law derives from the Fourth Amendment, and in both instances, government officials in their individual capacity are subject to liability for damages only if they violated a clearly established right to freedom from governmental intrusion where an individual has a reasonable expectation of privacy. See supra Part I.B. Under our earlier rulings, the FISA searchand-seizure allegations may proceed against only two of the Agent Defendants, and only with respect to a narrow aspect of the alleged surveillance.
In light of the overlap between the Bivens claim and the narrow range of the remaining FISA claim against the Agent Defendants that can proceed, it is far from clear that Plaintiffs will continue to press this claim. We therefore decline to address whether Plaintiffs’ Bivens claim remains available after the Supreme Court’s decision in Abbasi. On remand, the district court may determine—if necessary—whether a Bivens remedy is appropriate for any Fourth Amendment claim against the Agent Defendants.

73a
IV. Religion Claims
The other set of Plaintiffs’ claims arise from their allegation that they were targeted for surveillance solely because of their religion.38 In this part, we discuss Plaintiffs’ (1) First and Fifth Amendment injunctive relief claims against the official-capacity defendants; (2) First and Fifth Amendment Bivens claims against the Agent Defendants; (3) § 1985(3) claims for violations of the Free Exercise Clause, Establishment Clause, and equal protection guarantee; (4) RFRA claim; (5) Privacy Act claim; and (6) FTCA claims. Our focus throughout is whether there are grounds for dismissal independent of the Government’s invocation of the state secrets privilege.
A. First Amendment and Fifth Amendment Injunctive Relief Claims Against the OfficialCapacity Defendants
Plaintiffs maintain that it violates the First Amendment’s Religion Clauses and the equal protection component of the Fifth Amendment for the Government to target them for surveillance because of their adherence to and practice of Islam. The Government does not challenge the First and Fifth Amendment claims substantively. It argues only that injunctive relief is unavailable and that litigating the claims is not possible without risking the disclosure of state secrets. We have already concluded that injunctive relief, including expungement, is available under the Constitution where there is a substantively viable challenge to government
38 The operative complaint alleges as a factual matter that Plaintiffs were surveilled solely because of their religion. We limit our legal discussion to the facts there alleged.

74a
action, see supra Part III.A, and that dismissal because of the state secrets concern was improper because of the availability of the § 1806(f ) procedures, see supra Part II. Accordingly, considering only the arguments put forward by the Government, we conclude that the First and Fifth Amendment claims against the official-capacity defendants may go forward.
B. First Amendment and Fifth Amendment Bivens Claims Against the Agent Defendants
Plaintiffs seek monetary damages directly under the First Amendment’s Establishment and Free Exercise Clauses and the equal protection component of the Fifth Amendment’s Due Process Clause, relying on Bivens v. Six Unknown Named Agents.
We will not recognize a Bivens claim where there is “ ‘any alternative, existing process for protecting’ the plaintiff’s interests.” W. Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d 1116, 1120 (9th Cir. 2009) (quoting Wilkie v. Robbins, 551 U.S. 537, 550 (2007)). The existence of such an alternative remedy raises the inference that Congress “ ‘expected the Judiciary to stay its Bivens hand’ and ‘refrain from providing a new and freestanding remedy in damages.’ ” Id. (quoting Wilkie, 551 U.S. at 550, 554); see also Abbasi, 137 S. Ct. at 1863; Schweiker v. Chilicky, 487 U.S. 412, 423 (1988). Accordingly, we “refrain[] from creating a judicially implied remedy even when the available statutory remedies ‘do not provide complete relief ’ for a plaintiff that has suffered a constitutional violation.” W. Radio Servs., 578 F.3d at 1120 (quoting Malesko, 534 U.S. at 69). As long as “an avenue for some redress” exists, “bedrock princi-

75a
ples of separation of powers forclose[s] judicial imposition of a new substantive liability.’ ” Id. (alteration in original) (quoting Malesko, 534 U.S. at 69).
Here, we conclude that the Privacy Act, 5 U.S.C. § 552a, and the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq., taken together, provide an alternative remedial scheme for some, but not all, of Plaintiffs’ First and Fifth Amendment Bivens claims. As to the remaining Bivens claims, we remand to the district court to decide whether a Bivens remedy is available in light of the Supreme Court’s decision in Abbasi.
As to the collection and maintenance of records, Plaintiffs could have, and indeed did, challenge the FBI’s surveillance of them under the Privacy Act’s remedial scheme. Again, the Privacy Act, 5 U.S.C. § 552a, creates a set of rules governing how such records should be kept by federal agencies. See supra Part III.A. Under § 552a(e)(7), an “agency that maintains a system of records shall maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity.”39 When an agency fails to comply with § 552a(e)(7), an individual may bring a civil action against the agency for damages. Id. § 552a(g)(1)(D), (g)(4). Thus, § 552a(e)(7) limits the government’s ability to collect, maintain, use, or disseminate information on an individual’s religious activity protected by the First Amendment’s Religion Clauses.
39 The term “maintain” is defined to mean “maintain, collect, use, or disseminate.” 5 U.S.C. § 552a(a)(3).

76a
We have not addressed the availability of a Bivens action where the Privacy Act may be applicable. But two other circuits have, and both held that the Privacy Act supplants Bivens claims for First and Fifth Amendment violations. See Wilson v. Libby, 535 F.3d 697, 707-08 (D.C. Cir. 2008) (holding, in response to claims alleging harm from the improper disclosure of information subject to the Privacy Act’s protections, that the Privacy Act is a comprehensive remedial scheme that precludes an additional Bivens remedy); Downie v. City of Middleburg Heights, 301 F.3d 688, 696 & n.7 (6th Cir. 2002) (holding that the Privacy Act displaces Bivens for claims involving the creation, maintenance, and dissemination of false records by federal agency employees). We agree with the analyses in Wilson and Downie.
Although the Privacy Act provides a remedy only against the FBI, not the individual federal officers, the lack of relief against some potential defendants does not disqualify the Privacy Act as an alternative remedial scheme. Again, a Bivens remedy may be foreclosed “even when the available statutory remedies ‘do not provide complete relief ’ for a plaintiff,” as long as “the plaintiff ha[s] an avenue for some redress.” W. Radio Servs., 578 F.3d at 1120 (alteration in original) (emphasis added) (quoting Malesko, 534 U.S. at 69). Thus, to the extent that Plaintiffs’ Bivens claims involve improper collection and retention of agency records, the Privacy Act precludes such Bivens claims.
As to religious discrimination more generally, we conclude that RFRA precludes some, but not all, of Plaintiffs’ Bivens claims. RFRA provides that absent a “compelling governmental interest” and narrow tailoring,

77a
42 U.S.C. § 2000bb-1(b), the “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” Id. § 2000bb-1(a). The statute was enacted “to provide a claim or defense to persons whose religious exercise is substantially burdened by government.” Id. § 2000bb(b)(2). It therefore provided that “[a] person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.” Id. § 2000bb-1(c). RFRA thus provides a means for Plaintiffs to seek relief for the alleged burden of the surveillance itself on their exercise of their religion.
RFRA does not, however, provide an alternative remedial scheme for all of Plaintiffs’ discrimination-based Bivens claims. RFRA was enacted in response to Employment Division v. Smith, 494 U.S. 872 (1990), which, in Congress’s view, “virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion,” 42 U.S.C. § 2000bb(a)(4). Accordingly, “to restore the compelling interest test . . . and to guarantee its application in all cases where free exercise of religion is substantially burdened,” id. § 2000bb(b)(1), RFRA directs its focus on “rule[s] of general applicability” that “substantially burden a person’s exercise of religion,” id. § 2000bb-1(a).
Here, many of Plaintiffs’ allegations relate not to neutral and generally applicable government action, but to conduct motivated by intentional discrimination against Plaintiffs because of their Muslim faith. Regardless of the magnitude of the burden imposed, “if the object of a

78a
law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral” and “is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993) (emphasis added). It is the Free Exercise Clause of the First Amendment—not RFRA— that imposes this requirement.
Moreover, by its terms, RFRA applies only to the “free exercise of religion,” 42 U.S.C. § 2000bb(a)(1); indeed, it expressly disclaims any effect on “that portion of the First Amendment prohibiting laws respecting the establishment of religion,” id. § 2000bb-4. But intentional religious discrimination is “subject to heightened scrutiny whether [it] arise[s] under the Free Exercise Clause, the Establishment Clause, or the Equal Protection Clause.” Colo. Christian Univ. v. Weaver, 534 F.3d 1245, 1266 (10th Cir. 2008) (citations omitted). Here, Plaintiffs have raised religion claims based on all three constitutional provisions. Because RFRA does not provide an alternative remedial scheme for protecting these interests, we conclude that RFRA does not preclude Plaintiffs’ religion-based Bivens claims.
We conclude that the Privacy Act and RFRA, taken together, function as an alternative remedial scheme for protecting some, but not all, of the interests Plaintiffs seek to vindicate via their First and Fifth Amendment Bivens claims. The district court never addressed whether a Bivens remedy is available for any of the religion claims because it dismissed the claims in their entirety based on the state secrets privilege. In addition, Abbasi has now clarified the standard for determining

79a
when a Bivens remedy is available for a particular alleged constitutional violation. And, as we have explained, the scope of the religion claims to which a Bivens remedy might apply is considerably narrower than those alleged, given the partial displacement by the Privacy Act and RFRA. If asked, the district court should determine on remand, applying Abbasi, whether a Bivens remedy is available to the degree the damages remedy is not displaced by the Privacy Act and RFRA.
C. 42 U.S.C. § 1985(3) Claims Against the Agent Defendants
Plaintiffs allege that the Agent Defendants conspired to deprive Plaintiffs of their rights under the First Amendment’s Establishment and Free Exercise Clauses and the due process guarantee of the Fifth Amendment, in violation of 42 U.S.C. § 1985(3).
To state a violation of § 1985(3), Plaintiffs must “allege and prove four elements”:
(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.
United Bhd. of Carpenters & Joiners of Am., Local 610 v. Scott, 463 U.S. 825, 828-29 (1983). The Defendants attack these claims on various grounds, but we reach only one—whether § 1985(3) conspiracies among employees of the same government entity are barred by the intracorporate conspiracy doctrine.

80a
Abbasi makes clear that intracorporate liability was not clearly established at the time of the events in this case and that the Agent Defendants are therefore entitled to qualified immunity from liability under § 1985(3). See 137 S. Ct. at 1866.
In Abbasi, men of Arab and South Asian descent detained in the aftermath of September 11 sued two wardens of the federal detention center in Brooklyn in which they were held, along with several high-level Executive Branch officials who were alleged to have authorized their detention. Id. at 1853. They alleged, among other claims, a conspiracy among the defendants to deprive them of the equal protection of the laws under § 1985(3).40 Id. at 1853-54. Abbasi held that, even assuming these allegations to be “true and well pleaded,” the defendants were entitled to qualified immunity on the § 1985(3) claim. Id. at 1866-67. It was not “clearly established” at the time, the Court held, that the intracorporate conspiracy doctrine did not bar § 1985(3) liability for employees of the same government department who conspired among themselves. Id. at 1867-68. “[T]he fact that the courts are divided as to whether or not a § 1985(3) conspiracy can arise from official discussions between or among agents of the same entity demonstrates that the law on the point is not well established.” Id. at 1868. “[R]easonable officials in petitioners’ positions would not have known, and could not
40 Specifically, Plaintiffs alleged that these officials “conspired with one another to hold respondents in harsh conditions because of their actual or apparent race, religion, or national origin.” Abbasi, 137 S. Ct. at 1854.

81a
have predicted, that § 1985(3) prohibited their joint consultations.” Id. at 1867. The Court declined, however, to resolve the issue on the merits. Id.
Abbasi controls. Although the underlying facts here differ from those in Abbasi, the dispositive issue here, as in Abbasi, is whether the Agent Defendants could reasonably have known that agreements entered into or agreed-upon policies devised with other employees of the FBI could subject them to conspiracy liability under § 1985(3). At the time Plaintiffs allege they were surveilled, neither this court nor the Supreme Court had held that an intracorporate agreement could subject federal officials to liability under § 1985(3), and the circuits that had decided the issue were split.41 There was therefore, as in Abbasi, no clearly established law on the question. As the Agent Defendants are entitled to qualified immunity on the § 1985(3) allegations in the complaint, we affirm their dismissal on that ground.
41 Two circuits have held that the intracorporate conspiracy doctrine does not extend to civil rights cases. See Brever v. Rockwell Int’l Corp., 40 F.3d 1119, 1127 (10th Cir. 1994); Novotny v. Great Am. Fed. Sav. & Loan Ass’n, 584 F.2d 1235, 1257-58 (3d Cir. 1978) (en banc), vacated on other grounds, 442 U.S. 366 (1979); see also Stathos v. Bowden, 728 F.2d 15, 20-21 (1st Cir. 1984) (expressing “doubt” that the intracorporate conspiracy doctrine extends to conspiracy under § 1985(3)). The majority of the circuits have reached a contrary result. See Hartline v. Gallo, 546 F.3d 95, 99 n.3 (2d Cir. 2008); Meyers v. Starke, 420 F.3d 738, 742 (8th Cir. 2005); Dickerson v. Alachua Cty. Comm’n, 200 F.3d 761, 767-68 (11th Cir. 2000); Benningfield v. City of Houston, 157 F.3d 369, 378 (5th Cir. 1998); Wright v. Ill. Dep’t of Children & Family Servs., 40 F.3d 1492, 1508 (7th Cir. 1994); Hull v. Cuyahoga Valley Joint Vocational Sch. Dist. Bd. of Educ., 926 F.2d 505, 509-10 (6th Cir. 1991); Buschi v. Kirven, 775 F.2d 1240, 1252-53 (4th Cir. 1985).

82a
D. Religious Freedom Restoration Act Claim Against the Agent Defendants and Government Defendants
Plaintiffs allege that the Defendants violated the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb, by substantially burdening Plaintiffs’ exercise of religion, and did so neither in furtherance of a compelling governmental interest nor by adopting the least restrictive means of furthering any such interest. The Government Defendants offer no argument for dismissal of the RFRA claim other than the state secrets privilege. The Agent Defendants, however, contend that they are entitled to qualified immunity on the RFRA claim because Plaintiffs failed to plead a substantial burden on their religion, and if they did so plead, no clearly established law supported that conclusion at the relevant time.42
To establish a prima facie claim under RFRA, a plaintiff must “present evidence sufficient to allow a trier of fact rationally to find the existence of two elements.” Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1068 (9th Cir. 2008) (en banc). “First, the activities the
42 The parties do not dispute that qualified immunity is an available defense to a RFRA claim. We therefore assume it is. See Padilla v. Yoo, 678 F.3d 748, 768 (9th Cir. 2012); Lebron v. Rumsfeld, 670 F.3d 540, 560 (4th Cir. 2012).
Tidwell and Walls also contend that Plaintiffs’ RFRA claim was properly dismissed because RFRA does not permit damages suits against individual-capacity defendants. Because we affirm dismissal on another ground, we do not reach that issue. We note, however, that at least two other circuits have held that damages are available for RFRA suits against individual-capacity defendants. See Tanvir v. Tanzin, 894 F.3d 449, 467 (2d Cir. 2018); Mack v. Warden Loretto FCI, 839 F.3d 286, 302 (3d Cir. 2016).

83a
plaintiff claims are burdened by the government action must be an ‘exercise of religion.’ ” Id. (quoting 42 U.S.C. § 2000bb-1(a)). “Second, the government action must ‘substantially burden’ the plaintiff’s exercise of religion.” Id. Once a plaintiff has established those elements, “the burden of persuasion shifts to the government to prove that the challenged government action is in furtherance of a ‘compelling governmental interest’ and is implemented by ‘the least restrictive means.’ ” Id. (quoting 42 U.S.C. § 2000bb-1(b)).
“Under RFRA, a ‘substantial burden’ is imposed only when individuals are forced to choose between following the tenets of their religion and receiving a governmental benefit . . . or coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions. . . . ” Id. at 1069-70; see also Oklevueha Native Am. Church of Haw., Inc. v. Lynch, 828 F.3d 1012, 1016 (9th Cir. 2016). An effect on an individual’s “subjective, emotional religious experience” does not constitute a substantial burden, Navajo Nation, 535 F.3d at 1070, nor does “a government action that decreases the spirituality, the fervor, or the satisfaction with which a believer practices his religion,” id. at 1063.
Plaintiffs do allege that they altered their religious practices as a result of the FBI’s surveillance: Malik trimmed his beard, stopped regularly wearing a skull cap, decreased his attendance at the mosque, and became less welcoming to newcomers than he believes his religion requires. AbdelRahim “significantly decreased his attendance to mosque,” limited his donations to mosque institutions, and became less welcoming to newcomers than he believes his religion requires. Fazaga, who provided counseling at the mosque as an imam and

84a
an intern therapist, stopped counseling congregants at the mosque because he feared the conversations would be monitored and thus not confidential.
But it was not clearly established in 2006 or 2007 that covert surveillance conducted on the basis of religion would meet the RFRA standards for constituting a substantial religious burden on individual congregants. There simply was no case law in 2006 or 2007 that would have put the Agent Defendants on notice that covert surveillance on the basis of religion could violate RFRA. And at least two cases from our circuit could be read to point in the opposite direction, though they were brought under the First Amendment’s Religion Clauses rather than under RFRA. See Vernon v. City of Los Angeles, 27 F.3d 1385, 1394 (9th Cir. 1994); Presbyterian Church, 870 F.2d at 527.43
Presbyterian Church concerned an undercover investigation by INS of the sanctuary movement. 870 F.2d at 520. Over nearly a year, several INS agents infiltrated four churches in Arizona, attending and secretly recording church services. Id. The covert surveillance was later publicly disclosed in the course of criminal proceedings against individuals involved with the sanctuary movement. Id. The four churches
43 Presbyterian Church predates Employment Division v. Smith, which declined to use the compelling interest test from Sherbert v. Verner, 374 U.S. 398 (1963). Smith, 494 U.S. at 883-85. The other case, Vernon, postdates RFRA, which in 1993 restored Sherbert’s compelling interest test. See 27 F.3d at 1393 n.1; see also 42 U.S.C. § 2000bb(b). Although the compelling interest balancing test was in flux during this period, the notion that a burden on religious practice was required to state a claim was not. RFRA continued the same substantial burden standard as was required by the constitutional cases. See Vernon, 27 F.3d at 1393.

85a
brought suit, alleging a violation of their right to free exercise of religion. Id. We held that the individual INS agents named as defendants were entitled to qualified immunity because there was “no support in the preexisting case law” to suggest that “it must have been apparent to INS officials that undercover electronic surveillance of church services without a warrant and without probable cause violated the churches’ clearly established rights under the First . . . Amendment[].” Id. at 527.
In Vernon, the Los Angeles Police Department (“LAPD”) investigated Vernon, the Assistant Chief of Police of the LAPD, in response to allegations that Vernon’s religious beliefs had interfered with his ability or willingness to fairly perform his official duties. 27 F.3d at 1389. Vernon filed a § 1983 action, maintaining that the preinvestigation activities and the investigation itself violated the Free Exercise Clause. Id. at 1390. In his complaint, Vernon alleged that the investigation “chilled [him] in the exercise of his religious beliefs, fearing that he can no longer worship as he chooses, consult with his ministers and the elders of his church, participate in Christian fellowship and give public testimony to his faith without severe consequences.” Id. at 1394. We held that Vernon failed to demonstrate a substantial burden on his religious observance and so affirmed the district court’s dismissal of his free exercise claim. Id. at 1395. We noted that Vernon “failed to show any concrete and demonstrable injury.” Id. “Vernon complain[ed] that the existence of a government investigation has discouraged him from pursuing his personal religious beliefs and practices—in other words, mere subjective chilling effects with neither ‘a claim of specific present objective harm [n]or a threat of

86a
specific future harm.’ ” Id. (quoting Laird v. Tatum, 408 U.S. 1, 14 (1972)).
Vernon and Presbyterian Church were decided before the surveillance Plaintiffs allege substantially burdened their exercise of religion. Both cases cast doubt upon whether surveillance such as that alleged here constitutes a substantial burden upon religious practice. There is no pertinent case law indicating otherwise. It was therefore not clearly established in 2006 or 2007 that Defendants’ actions violated Plaintiffs’ freedom of religion, protected by RFRA.44
As to the Agent Defendants, therefore, we affirm the dismissal of the RFRA claim. But because the Government Defendants are not subject to the same qualified immunity analysis and made no arguments in support of dismissing the RFRA claim other than the state secrets privilege, we hold that the complaint substantively states a RFRA claim against the Government Defendants.45
44 These cases may not, however, entitle the Agent Defendants to qualified immunity as to claims involving intentional discrimination based on Plaintiffs’ religion. As we noted, see supra Part IV.B, we are not deciding whether there is an available Bivens action for those claims. As we decline to anticipate whether Plaintiffs will pursue their Bivens claims on the religious discrimination issues and, if so, whether the claims will be allowed to go forward, we leave any surviving qualified immunity issue for the district court to decide in the first instance.
45 We do not address any other defenses the Government Defendants may raise before the district court in response to Plaintiffs’ RFRA claim.

87a
E. Privacy Act Claim Against the FBI
Plaintiffs allege that the FBI violated the Privacy Act, 5 U.S.C. § 552a(e)(7),46 by collecting and maintaining records describing how Plaintiffs exercised their First Amendment rights. As a remedy, Plaintiffs seek only injunctive relief ordering the destruction or return of unlawfully obtained information. Cell Associates, Inc. v. National Institutes of Health, 579 F.2d 1155 (9th Cir. 1978), which interpreted the scope of Privacy Act remedies, precludes such injunctive relief.
The “Civil remedies” section of the Privacy Act, 5 U.S.C. § 552a(g), lists four types of agency misconduct and the remedies applicable to each. The statute expressly provides that injunctive relief is available when an agency improperly denies a request to amend or disclose an individual’s record, see 5 U.S.C. § 552a(g)(1)(A), (2)(A), (1)(B), (3)(A), but provides only for damages when the agency “fails to maintain any record” with the “accuracy, relevance, timeliness, and completeness” required for fairness, id. § 552a(g)(1)(C), or if the agency “fails to comply with any other provision” of the Privacy Act, id. § 552a(g)(1)(D). See id. § 552a(g)(4). Cell Associates concluded that this distinction was purposeful —that is, that Congress intended to limit the availability
46 The header to Plaintiffs’ Eighth Cause of Action reads broadly, “Violation of the Privacy Act, 5 U.S.C. § 552a(a)-(l).” As actually pleaded and briefed, however, the substance of Plaintiffs’ Privacy Act claim is limited to § 552a(e)(7). The complaint states that “Defendant FBI . . . collected and maintained records . . . in violation of 5 U.S.C. § 552a(e)(7).” And Plaintiffs’ reply brief states that they “seek expungement . . . under 5 U.S.C. § 552a(e)(7).”

88a
of injunctive relief to the categories of agency misconduct for which injunctive relief was specified as a remedy:
The addition of a right to injunctive relief for one type of violation, coupled with the failure to provide injunctive relief for another type of violation, suggests that Congress knew what it was about and intended the remedies specified in the Act to be exclusive. While the right to damages might seem an inadequate safeguard against unwarranted disclosures of agency records, we think it plain that Congress limited injunctive relief to the situations described in 5 U.S.C. § 552a(g)(1)(A) and (2) and (1)(B) and (3).
579 F.2d at 1161.
A violation of § 552a(e)(7) falls within the catch-all remedy provision, applicable if the agency “fails to comply with any other provision” of the Privacy Act. 5 U.S.C. § 552a(g)(1)(D). As the statute does not expressly provide for injunctive relief for a violation of this catch-all provision, Cell Associates precludes injunctive relief for a violation of § 552a(e)(7).
Plaintiffs attempt to avoid the precedential impact of Cell Associates on the ground that it “nowhere mentions Section 552a(e)(7).” That is so, but the holding of Cell Associates nonetheless applies directly to this case. The Privacy Act specifies that injunctive relief is available for violations of some provisions of the Act, but not for a violation of § 552a(e)(7). Under Cell Associates,

89a
Plaintiffs cannot obtain injunctive relief except for violations as to which such relief is specifically permitted.47
Plaintiffs’ complaint expressly provides that “[t]he FBI is sued for injunctive relief only.” Accordingly, because their sole requested remedy is unavailable, Plaintiffs fail to state a claim under the Privacy Act.
F. FTCA Claims
The FTCA constitutes a waiver of sovereign immunity “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). “State substantive law applies” in FTCA actions. Liebsack v. United States, 731 F.3d 850, 856 (9th Cir. 2013). If an individual federal employee is sued, the United States shall, given certain conditions are satisfied, “be substituted as the party defendant.” 28 U.S.C. § 2679(d)(1).
Plaintiffs allege that the United States is liable under the FTCA for invasion of privacy under California law, violation of the California constitutional right to privacy, violation of California Civil Code § 52.1, and intentional infliction of emotional distress. We first consider Defendants’ jurisdictional arguments, and then discuss their implications for the substantive FTCA claims.
47 Plaintiffs also argue that MacPherson v. IRS, 803 F.2d 479 (9th Cir. 1986) is “binding Ninth Circuit authority . . . [that] makes clear that courts have authority to order expungement of records maintained in violation of its [§ 552a(e)(7)] requirements.” But MacPherson does not state whether the plaintiff there sought injunctive relief and so is unclear on this point.

90a
1. FTCA Judgment Bar
The FTCA’s judgment bar provides that “[t]he judgment in an action under [the FTCA] shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim.” 28 U.S.C. § 2676. The judgment bar provision has no application here.
The judgment bar provision precludes claims against individual defendants in two circumstances: (1) where a plaintiff brings an FTCA claim against the government and non-FTCA claims against individual defendants in the same action and obtains a judgment against the government, see Kreines v. United States, 959 F.2d 834, 838 (9th Cir. 1992); and (2) where the plaintiff brings an FTCA claim against the government, judgment is entered in favor of either party, and the plaintiff then brings a subsequent non-FTCA action against individual defendants, see Gasho v. United States, 39 F.3d 1420, 1437-38 (9th Cir. 1994); Ting v. United States, 927 F.2d 1504, 1513 n.10 (9th Cir. 1991). The purposes of this judgment bar are “to prevent dual recoveries,” Kreines, 959 F.2d at 838, to “serve[] the interests of judicial economy,” and to “foster more efficient settlement of claims,” by “encourag[ing plaintiffs] to pursue their claims concurrently in the same action, instead of in separate actions,” Gasho, 39 F.3d at 1438.
Neither of those two circumstances, nor their attendant risks, is present here. Plaintiffs brought their FTCA claim, necessarily, against the United States, and their non-FTCA claims against the Agent Defendants, in the same action. They have not obtained a judgment against the government. Kreines held that “an FTCA

91a
judgment in favor of the government did not bar the Bivens claim [against individual employees] when the judgments are ‘contemporaneous’ and part of the same action.” Gasho, 39 F.3d at 1437 (quoting Kreines, 959 F.2d at 838). By “contemporaneous,” Kreines did not require that judgments on the FTCA and other claims be entered simultaneously, but rather that they result from the same action.
The FTCA’s judgment bar does not operate to preclude Plaintiffs’ claims against the Agent Defendants.
2. FTCA Discretionary Function Exception
The discretionary function exception provides that the FTCA shall not apply to “[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, . . . or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). “[T]he discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.” Berkovitz v. United States, 486 U.S. 531, 536 (1988). “[G]overnmental conduct cannot be discretionary if it violates a legal mandate.” Galvin v. Hay, 374 F.3d 739, 758 (9th Cir. 2004) (quoting Nurse v. United States, 226 F.3d 996, 1002 (9th Cir. 2000)). Moreover, “the Constitution can limit the discretion of federal officials such that the FTCA’s discretionary function exception will not apply.” Id. (quoting Nurse, 226 F.3d at 1002 n.2).

92a
We cannot determine the applicability of the discretionary function exception at this stage in the litigation. If, on remand, the district court determines that Defendants did not violate any federal constitutional or statutory directives, the discretionary function exception will bar Plaintiffs’ FTCA claims.48 But if the district court instead determines that Defendants did violate a nondiscretionary federal constitutional or statutory directive, the FTCA claims may be able to proceed to that degree.
Because applicability of the discretionary function will largely turn on the district court’s ultimate resolution of the merits of Plaintiffs’ various federal constitutional and statutory claims, discussing whether Plaintiffs substantively state claims as to the state laws underlying the FTCA claim would be premature. We therefore decline to do so at this juncture.
V. Procedures on Remand
On remand, the FISA and Fourth Amendment claims, to the extent we have held they are validly pleaded in the complaint and not subject to qualified immunity, should proceed as usual. See supra Part II.B. In light of our conclusion regarding the reach of FISA § 1806(f ), the district court should, using § 1806(f )’s ex parte and in camera procedures, review any “materials relating to the surveillance as may be necessary,” 50 U.S.C. § 1806(f ), including the evidence over which the Attorney General asserted the state secrets privilege, to
48 We note that the judgment bar, 28 U.S.C. § 2676, does not apply to FTCA claims dismissed under the discretionary function exception. See Simmons v. Himmelreich, 136 S. Ct. 1843, 1847-48 (2016).

93a
determine whether the electronic surveillance was lawfully authorized and conducted. That determination will include, to the extent we have concluded that the complaint states a claim regarding each such provision, whether Defendants violated any of the constitutional and statutory provisions asserted by Plaintiffs in their complaint. As permitted by Congress, “[i]n making this determination, the court may disclose to [plaintiffs], under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.” Id.49
The Government suggests that Plaintiffs’ religion claims cannot be resolved using the § 1806(f ) procedures because, as the district court found, “the central subject matter [of the case] is Operation Flex, a group of counterterrorism investigations that extend well beyond the purview of electronic surveillance.” Although the larger factual context of the case involves more than electronic surveillance, a careful review of the “Claims for Relief” section of the complaint convinces us that all of Plaintiffs’ legal causes of action relate to electronic surveillance, at least for the most part, and in nearly all instances entirely, and thus require a determination as to the lawfulness of the surveillance. Moreover,
49 Our circuit has not addressed the applicable standard for reviewing the district court’s decision not to disclose FISA materials. Other circuits, however, have adopted an abuse of discretion standard. See United States v. Ali, 799 F.3d 1008, 1022 (8th Cir. 2015); United States v. El-Mezain, 664 F.3d 467, 567 (5th Cir. 2011); United States v. Damrah, 412 F.3d 618, 624 (6th Cir. 2005); United States v. Badia, 827 F.2d 1458, 1464 (11th Cir. 1987); United States v. Belfield, 692 F.2d 141, 147 (D.C. Cir. 1982).

94a
§ 1806(f ) provides that the district court may consider “other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted,” thereby providing for consideration of all parties’ factual submissions and legal contentions regarding the background of the surveillance. Id. (emphasis added).
We did explain in Part I, supra, that not all of the surveillance detailed in the complaint as the basis for Plaintiffs’ legal claims constitutes electronic surveillance as defined by FISA. See id. § 1801(k). Also, two of Plaintiffs’ causes of action can be read to encompass more conduct than just electronic surveillance. Plaintiffs’ RFRA claim, their Fifth Cause of Action, is not limited to electronic surveillance. Plaintiffs broadly allege that “[t]he actions of Defendants substantially burdened [their] exercise of religion.” The FTCA claim for intentional infliction of emotional distress, the Eleventh Cause of Action, is also more broadly pleaded. It is far from clear, however, that as actually litigated, either claim will involve more than the electronic surveillance that is otherwise the focus of the lawsuit.50
At this stage, it appears that, once the district court uses § 1806(f )’s procedures to review the state secrets evidence in camera and ex parte to determine the law-
50 For example, whether the official-capacity defendants targeted Plaintiffs for surveillance in violation of the First Amendment will in all likelihood be proven or defended against using the same set of evidence regardless of whether the court considers the claim in terms of electronic surveillance in the mosque prayer hall or conversations to which Monteilh was a party.

95a
fulness of that surveillance, it could rely on its assessment of the same evidence—taking care to avoid its public disclosure—to determine the lawfulness of the surveillance falling outside FISA’s purview, should Plaintiffs wish to proceed with their claims as applied to that set of activity. Once the sensitive information has been considered in camera and ex parte, the small risk of disclosure—a risk Congress thought too small to preclude careful ex parte, in camera consideration by a federal judge—has already been incurred. The scope of the state secrets privilege “is limited by its underlying purpose.” Halpern v. United States, 258 F.2d 36, 44 (2d Cir. 1958) (quoting Roviaro v. United States, 353 U.S. 53, 60 (1957)). It would stretch the privilege beyond its purpose to require the district court to consider the state secrets evidence in camera and ex parte for one claim, but then, when considering another claim, ignore the evidence and dismiss the claim even though it involves the exact same set of parties, facts, and alleged legal violations.
Should our prediction of the overlap between the information to be reviewed under the FISA procedures to determine the validity of FISA-covered electronic surveillance and the information pertinent to other aspects of the religion claims prove inaccurate, or should the FISA-covered electronic surveillance drop out of consideration,51 the Government is free to interpose a specifically tailored, properly raised state secrets privilege defense. Should the Government do so, at that point the district court should consider anew whether “simply excluding or otherwise walling off the privileged information
51 As could happen if, for instance, Plaintiffs are unable to substantiate their factual allegations as to the occurrence of the surveillance.

96a
may suffice to protect the state secrets,” Jeppesen, 614 F.3d at 1082, or whether dismissal is required because “the privilege deprives the defendant[s] of information that would otherwise give the defendant[s] a valid defense to the claim[s],” id. at 1083 (quoting Kasza, 133 F.3d at 1166), or because the privileged and nonprivileged evidence are “inseparable” such that “litigating the case to a judgment on the merits would present an unacceptable risk of disclosing state secrets,” id.
Because Jeppesen did not define “valid defense,” we briefly address its meaning, so as to provide guidance to the district court on remand and to future courts in our circuit addressing the implications of the Government’s invocation of the state secrets privilege.
The most useful discussion of the meaning of “valid defense” in the state secrets context is in the D.C. Circuit’s decision in In re Sealed Case, 494 F.3d 139, cited by Jeppensen, 614 F.3d at 1083. We find the D.C. Circuit’s definition and reasoning persuasive, and so adopt it. Critically, In re Sealed Case explained that “[a] ‘valid defense’ . . . is meritorious and not merely plausible and would require judgment for the defendant.” 494 F.3d at 149. The state secrets privilege does not require “dismissal of a complaint for any plausible or colorable defense.” Id. at 150. Otherwise, “virtually every case in which the United States successfully invokes the state secrets privilege would need to be dismissed.” Id. Such an approach would constitute judicial abdication from the responsibility to decide cases on the basis of evidence “in favor of a system of conjecture.” Id. And the Supreme Court has cautioned against “precluding review of constitutional claims” and “broadly interpreting evidentiary privileges.” Id. at 151 (first citing

97a
Webster v. Doe, 486 U.S. 592, 603-04 (1988), and then citing United States v. Nixon, 418 U.S. 683, 710 (1974)). “[A]llowing the mere prospect of a privilege defense,” without more, “to thwart a citizen’s efforts to vindicate his or her constitutional rights would run afoul” of those cautions. Id. Thus, where the government contends that dismissal is required because the state secrets privilege inhibits it from presenting a valid defense, the district court may properly dismiss the complaint only if it conducts an “appropriately tailored in camera review of the privileged record,” id., and determines that defendants have a legally meritorious defense that prevents recovery by the plaintiffs, id. at 149 & n.4.
CONCLUSION
The legal questions presented in this case have been many and difficult. We answer them on purely legal grounds, but of course realize that those legal answers will reverberate in the context of the larger ongoing national conversation about how reasonably to understand and respond to the threats posed by terrorism without fueling a climate of fear rooted in stereotypes and discrimination. In a previous case, we observed that the state secrets doctrine strikes a “difficult balance . . . between fundamental principles of our liberty, including justice, transparency, accountability and national security,” and sometimes requires us to confront “an irreconcilable conflict” between those principles. Jeppesen, 614 F.3d at 1073. In holding, for the reasons stated, that the Government’s assertion of the state secrets privilege does not warrant dismissal of this litigation in its entirety, we, too, have recognized the need for balance, but also have heeded the conclusion at the heart of Congress’s enactment of FISA: the fundamental principles

98a
of liberty include devising means of forwarding accountability while assuring national security.
Having carefully considered the Defendants’ various arguments for dismissal other than the state secrets privilege, we conclude that some of Plaintiffs’ search and religion allegations state a claim, while others do not. We therefore affirm in part and reverse in part the district court’s orders, and remand for further proceedings in accordance with this opinion.
AFFIRMED in part, REVERSED in part, and REMANDED.
GOULD and BERZON, Circuit Judges, joined by WARDLAW, FLETCHER, and PAEZ, Circuit Judges, concurring in the denial of rehearing en banc:
Judge Bumatay’s dissent from the denial of rehearing (the “dissent”) is a veritable Russian doll of nestled mistakes and misleading statements—open one, and another stares back at you. The panel opinion itself belies most of the accusations. For brevity, we pay particular attention here to the dissent’s most fundamental misperceptions of the panel’s holdings.
I
At the core of this case lies a series of interwoven statutory interpretation issues surrounding the application of the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. §§ 1801 et seq, in a civil action. The panel opinion concluded that a provision of that statute, 50 U.S.C. § 1806(f ), supersedes the common law state secrets evidentiary privilege’s limited dismissal remedy —not the protection of state secrets from disclosure—

99a
with regard to evidence or information related to electronic surveillance, and that the secrecy-protective procedures established by 50 U.S.C. § 1806(f ), designed precisely for matters implicating national security concerns, apply to the plaintiffs’ claims in this case against the government.
In concluding that § 1806(f )’s procedures apply, the panel opinion decidedly did not, as the dissent asserts, second guess the Executive’s capacity to determine that certain evidence related to electronic surveillance is classified or touches on issues of national security, and therefore deserves protection from disclosure to litigants or the public. See Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1081-82 (9th Cir. 2010) (en banc). Instead, the panel opinion resolved the discrete issue of what should happen in a civil case that involves such information: Need the case be dismissed, as it sometimes is to implement the common law state secrets privilege, or can it go forward but without disclosure of the information to the plaintiffs, under specially tailored litigation procedures that would in other contexts be impermissible as violative of the plaintiffs’ rights as litigants?
Critically for present purposes, the classified material at issue is protected from disclosure under § 1806(f ), just as it is under the state secrets privilege’s dismissal option—it is just protected differently. To ensure that sensitive information is not inadvertently disclosed to the public, the § 1806(f ) procedures require the district court to consider the material ex parte and in camera. The government uses these very same procedures all the time when prosecuting suspected terrorists; the government does so by choice, and without any evident

100a
handwringing over whether the use of the § 1806(f ) procedures might lead to the disclosure of state secrets. And the same ex parte and in camera review takes place when the state secrets privilege is invoked, to ascertain whether it is properly applicable and, if so, whether the case can go forward without the sensitive evidence or must be dismissed; that is exactly what happened in this case in the district court.1
II
The dissent’s misleading assertions about the nature of the § 1806(f )’s procedures underpin its two major legal propositions, neither of which is rooted in the facts of this case, the text of FISA, or any binding precedent.
A
The dissent insists that the panel should have applied a “clear statement” rule to the question whether the
1 The dissent notes § 1806(f ) and (g)’s disclosure provisions, which are available only in exceptional circumstances. As far as we are aware, there has never been a disclosure under FISA. And, as the panel opinion noted: “As it is Plaintiffs who have invoked the FISA procedures, we proceed on the understanding that they are willing to accept those restrictions to the degree they are applicable as an alternative to dismissal, and so may not later seek to contest them.” Amended Opinion at 49. In the unprecedented event that a district court does order disclosure, nothing in the panel opinion prevents the government from invoking the state secrets privilege’s dismissal remedy as a backstop at that juncture. Finally, the panel does not, as the dissent asserts, “warn” district judges that failure to disclose evidence could constitute an abuse of discretion. Dissent at 134 n.9. The panel does not take any position on the appropriate standard of review for a district court’s decision regarding the disclosure of FISA materials. Rather, we merely note the approach adopted in other circuits.

101a
§ 1806(f ) ex parte, in camera method of litigation displaces the state secrets evidentiary privilege’s dismissal remedy.
The panel could not have applied a “clear statement” analysis. Our Circuit’s binding precedent required the panel to ask whether FISA’s § 1806(f )’s procedures “speak[] directly” to the question otherwise answered by the dismissal remedy in cases involving classified material related to electronic surveillance. See Kasza v. Browner, 133 F.3d 1159, 1167 (9th Cir. 1998) (internal quotation marks and emphasis omitted). As the panel opinion explained, the text, practice, purpose, and history of FISA and § 1806(f ) all quite clearly demonstrate that the ex parte and in camera review established by § 1806(f ) squarely answers the “speak directly” question.
The dissent maintains the “speaks directly” standard adopted in Kasza is wrong, because the state secrets evidentiary privilege has constitutional origins. See Dissent at 119, 129. The proposed new “clear statement” requirement—effectively, that Congress had to name the state secrets privilege, including its contingent dismissal remedy, to replace that remedy—is improper in the current context for two reasons.
First, no matter the origins or role of the state secrets privilege, at issue here is only the dismissal remedy that sometimes follows the successful invocation of the state secrets evidentiary privilege, when the case cannot as a practical matter be litigated without the privileged evidence. Jeppesen Dataplan, Inc., 614 F.3d at 1082-83. “Ordinarily, simply excluding or otherwise walling off the privileged information may suffice to protect the state secrets,” but, “[i]n some instances . . .

102a
application of the privilege may require dismissal of the action.” Id.
The dissent portrays the state secrets privilege as a magic wand that the Executive may wave to remove certain information from litigation or, if necessary, end the case. Not so. “The privilege belongs to the Government and must be asserted by it,” but “[t]he court itself must determine whether the circumstances are appropriate for the claim of privilege.” United States v. Reynolds, 345 U.S. 1, 7-8 (1953); see also El-Masri v. United States, 479 F.3d 296, 312 (4th Cir. 2007). And the role of the court is especially pronounced when it must determine whether dismissal is necessary. See Jeppesen Dataplan, Inc., 614 F.3d at 1082-83. So the dismissal remedy is not the state secrets privilege itself but a procedural exigency, sometimes imposed by the courts to prevent unfairness to the litigants once the evidentiary exclusion privilege is invoked and recognized with regard to certain evidence. Dismissal in the state secrets context is thus not grounded in separation of powers concerns.
Second, and more generally, as the panel opinion recounts, at heart the state secrets privilege is an evidentiary privilege, not a constitutional one. Amended Opinion at 58-59; see In re United States, 872 F.2d 472, 47475 (D.C. Cir. 1989). Reynolds, which the dissent recognizes as the wellspring of “the modern state secrets doctrine,” Dissent at 128, itself made this point:
We have had broad propositions pressed upon us for decision. On behalf of the Government it has been urged that the executive department heads have power to withhold any documents in their custody from judicial view if they deem it to be in the public

103a
interest. Respondents have asserted that the executive’s power to withhold documents was waived by the Tort Claims Act. Both positions have constitutional overtones which we find it unnecessary to pass upon, there being a narrower ground for decision.
345 U.S. at 6. As General Dynamics Corp. v. United States, 563 U.S. 478, 485 (2011), summarized, “Reynolds was about the admission of evidence. It decided a purely evidentiary dispute by applying evidentiary rules: The privileged information is excluded, and the trial goes on without it.”
Or the trial doesn’t go on, if the district court decides that dismissal is necessary. But in the narrow context of classified information related to electronic surveillance, FISA’s procedures do away with the need for dismissal, by allowing the court to consider the relevant materials during the course of the litigation in the truncated and secrecy-protective manner established by § 1806(f ).
B
The dissent also strives to insulate the government from suit by paring back the coverage of § 1806(f ) and related provisions so as not to cover at all suits against the government. The dissent thus presents FISA, and specifically § 1806(f ), as single-mindedly concerned with protecting the government’s ability to prosecute criminal defendants without revealing national security secrets.
FISA is decidedly not so one-sided. The dissent never mentions a FISA provision, 50 U.S.C. § 1810, which authorizes affirmative actions against the government

104a
challenging electronic surveillance material as unlawfully obtained. Ignoring § 1810, the dissent puts forward a view of the reach of § 1806(f )’s procedures much too narrow to accommodate the statute’s provision for affirmative relief. Were the dissent’s one-way-ratchet position correct, in a § 1810 affirmative suit, the need to consider the same evidence that was or should have been excluded in a prosecution of a defendant (because the surveillance used to collect the evidence is alleged to have been unlawful) could lead to dismissal of a § 1810 suit seeking damages for that same illegal surveillance.
To position these procedures as a one-way ratchet for the government, the dissent takes every opportunity to shrink the reach of § 1806(f ) and related provisions to a scope much more circumscribed than their terms and purpose support. To highlight four of the dissent’s efforts:
• To fit the dissent’s narrative that § 1806(f ) applies only when the government is on the offensive, the dissent maintains that the government does not intend to “use” the relevant information over which it has asserted the state secrets privilege—a requisite for the application of § 1806(f )’s procedures. But here, the government’s primary reason for invoking the state secrets privilege’s dismissal remedy is its asserted need to use classified information to defend itself if the case went forward. The government submitted, alongside the Attorney General’s invocation of the state secrets privilege, an unclassified declaration stating that “[a]ddressing plaintiffs’ allegations in this case will risk or require the

105a
disclosure of certain sensitive information concerning counterterrorism investigative activity in Southern California, including in particular the nature and scope of Operation Flex.”
• The dissent also takes the word “use” out of context. FISA’s procedures apply “[w]henever the Government intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding . . . any information obtained or derived from an electronic surveillance[.]” 50 U.S.C. § 1806(c) (emphasis added). In other words, the procedures apply whenever the government uses the information in “another way” or “any other way” than entering it into evidence. See Otherwise, The Oxford English Dictionary Online, https://www.oed.com/view/Entry/ 133247?redirectedFrom=otherwise#eid (last visited June 22, 2020).
• The dissent argues that, to trigger FISA’s review procedures, “an aggrieved person” must be the defendant. Dissent at 138-139. But the statute is not unidirectional. The dissent takes the “against an aggrieved person” phrase out of context to suit the dissent’s preferred ends. The statutory scheme establishes that § 1806(f )’s procedures apply “[w]henever the Government intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, against an aggrieved person, any information obtained or derived from an

106a
electronic surveillance of that aggrieved person.” § 1806(c). A “trial, hearing, or other proceeding” involves two parties, providing either an opportunity to introduce evidence—it is the evidence that is “against” someone.
• The dissent states that “§ 1806(f ) authorizes the review of only a limited set of documents: the FISA ‘application, order, and such other materials.’ ” Dissent at 132. But that is not what the statute says, and the full text of the relevant phrase tells an entirely different story: § 1806(f ) authorizes the district court to review the “application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.” § 1806(f ) (emphasis added). As used in the actual statute as opposed to the dissent’s truncated version, “such” does not, as the dissent erroneously claims, refer only backwards to “application” and “order;” it also, and most prominently, applies forward to “materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.” §?1806(f ); see Such, Merriam-Webster Online, https://www. merriamwebster.com/dictionary/such (last visited June 22, 2020) (defining “such” principally to mean “of a kind or character to be indicated or suggested”) (emphasis added).
In conjunction with misreading the statute in these and other respects, the dissent avows that the panel opinion gives “unintended breadth” to FISA. Dissent

107a
at 142 (quoting Yates v. United States, 135 S. Ct. 1074, 1085 (2015)). But the only way to know what “breadth” is “intended” is to read the statute. Section 1806(f ) speaks in the broadest language possible. The procedures apply “whenever the Government intends to enter into evidence or otherwise use or disclose in any trial, hearing, or proceeding . . . any information obtained or derived from an electronic surveillance” or “whenever any motion or request is made . . . pursuant to any other statute or rule of the United States or any State before any court or other authority.” (Emphases added). If that capacious language were not enough to maximize the provision’s reach, every conceivable clause is separated by a disjunctive “or.” Rather than “jam a square peg into a round hole,” Dissent at 143, or “hide elephants in mouseholes,” Dissent at 142 (quoting Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001)), the panel opinion acknowledged that, when statutes use expansive language, we should understand that Congress did not mean for us to read in limitations that are not there.
* * *
The dissent is replete with quotations from Washington, Hamilton, and Jefferson, all making the indisputable point that, to protect our national interest, our government must be able to keep certain information secret. Neither the Founding Fathers’ concerns about governmental secrecy nor broad issues of executive authority are at issue in this case. The question presented to the panel here was not whether the government should be able to keep classified material secret but how. The procedures established by § 1806(f ) (which

108a
the government leans on heavily when it is the prosecutor) ensure secrecy. Under any reasonable reading of the statute, these procedures, when otherwise applicable, supersede the state secrets privilege’s contingent dismissal remedy and apply to the information at issue in this case.
For the forgoing reasons, we concur in the denial of rehearing en banc.
STEEH, Senior District Judge, statement regarding the denial of rehearing en banc:
Although, as a visiting judge sitting by designation, I am not permitted to vote on a petition for rehearing en banc, I agree with the views expressed by Judges Berzon and Gould in their concurrence in the denial of rehearing en banc.
BUMATAY, Circuit Judge, with whom CALLAHAN, IKUTA, BENNETT, R. NELSON, BADE, LEE, VANDYKE, Circuit Judges, join, and COLLINS and BRESS, Circuit Judges, join except for Section III.A.2, dissenting from the denial of rehearing en banc:
From the earliest days of our Nation’s history, all three branches of government have recognized that the Executive has authority to prevent the disclosure of information that would jeopardize national security. Embodied in the state secrets privilege, such discretion lies at the core of the executive power and the President’s authority as Commander in Chief. Indeed, these powers were vested in a single person precisely so that the

109a
Executive could act with the requisite “[d]ecision, activity, secrecy, and d[i]spatch.” The Federalist No. 70 (Alexander Hamilton) (emphasis added).
In contrast to the broad constitutional design of the state secrets privilege, Congress passed the Foreign Intelligence Surveillance Act (“FISA”) for a limited function—to establish procedures for the lawful electronic surveillance of foreign powers and their agents. Among other things, FISA provides a mechanism for in camera, ex parte judicial review of electronic surveillance evidence when the government tries to use such evidence, or a surveilled party tries to suppress it. See 50 U.S.C. § 1806(f ).1
By its plain text and context, § 1806(f ) provides procedures to determine the admissibility of electronic surveillance evidence—a commonplace gatekeeping function exercised by courts throughout this country. When the provision is triggered, courts review only a limited set of documents, the FISA application, order, and like materials, and may generally only suppress the evidence if it was unlawfully obtained. § 1806(f ), (g). Thus, § 1806(f ) coexists with the state secrets privilege by providing judicial oversight over the government’s affirmative use of electronic surveillance evidence, while
1 All statutory references are to Title 50 of the United States Code. In relevant part, § 1806(f ) provides, when triggered, “the United States district court . . . shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.”

110a
preserving the Executive’s constitutional prerogative to protect national security information.
But today, the Ninth Circuit, once again, strains the meaning of a statute and adopts a virtually boundless view of § 1806(f ). Under the court’s reading, this narrow provision authorizes judicial review of any evidence, on any claim, for any purpose, as long as the party’s allegations relate to electronic surveillance. With this untenably broad interpretation, the court then rules that the judicial branch will not recognize the state secrets privilege over evidence with any connection to electronic surveillance. Most alarming, this decision may lead to the disclosure of state secrets to the very subjects of the foreign-intelligence surveillance. With this, I cannot agree.
Our court’s decision ignores that Congress articulated no directive in FISA to displace the state secrets privilege—even under the most generous abrogation standards. More fundamentally, the court should have ensured that Congress was unmistakably clear before vitiating a core constitutional privilege. When the Supreme Court confronts a legislative enactment implicating constitutional concerns—federalism or separation of powers—it has commonly required a clear statement from Congress before plowing ahead. It has done so out of a due respect for those constitutional concerns. The state secrets privilege deserves the same respect.
In discovering abrogation of the state secrets privilege more than 40 years after FISA’s enactment, our court disrupts the balance of powers among Congress, the Executive, and the Judiciary. We have previously recognized that the state secrets doctrine preserves the difficult balance among “fundamental principles of our

111a
liberty, including justice, transparency, accountability and national security.” Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1073 (9th Cir. 2010) (en banc). Our refusal to reexamine this case now tips that balance in favor of inventive litigants and overzealous courts, to the detriment of national security. Moving forward, litigants can dodge the state secrets privilege simply by invoking “electronic surveillance” somewhere within the Ninth Circuit. And in defending such cases, the government may be powerless to prevent the disclosure of state secrets. For this reason, I respectfully dissent from the denial of rehearing en banc.
I.
In this case, Yassir Fazaga and his co-plaintiffs sued the United States, the FBI, and FBI special agents, for using an informant to gather information from the Muslim community in Southern California. Their complaint asserted numerous constitutional and statutory causes of action alleging unlawful searches and surveillance and violations of their religious liberty.
Soon after the suit was filed, the FBI asserted the state secrets privilege over information related to its investigation. Through a declaration of the Attorney General, the government warned that proceeding on the claims risked the disclosure of state secrets.2 Accordingly, the government moved to dismiss the religious liberty claims.
2 Specifically, the government sought to withhold evidence that would (1) confirm or deny the particular targets of the investigation; (2) reveal the initial reasons for opening the investigation, the materials uncovered, or the status and results of the investigation; and (3) reveal particular sources or methods used.

112a
After scrutinizing the government’s classified and unclassified declarations, the district court validated its assertion of the privilege. The court found that the litigation involved intelligence that, if disclosed, would significantly compromise national security. Because the risk of disclosure could not be averted through protective orders or other restrictions, the court dismissed all but one of the claims.
On appeal, a panel of this court reversed. The panel first held that FISA abrogated the state secrets privilege. It thought that § 1806(f ) “speaks directly” to the same concerns as the state secrets privilege and, thus, displaced it—despite recognizing that the privilege “may” have a “constitutional core” or “constitutional overtones.” Am. Op. at 58-59. Next, the court held that § 1806(f )’s review procedures were triggered in this case. As a result, the court instructed the district court to use those procedures to review any evidence relating to the alleged electronic surveillance—even the evidence that the government asserted constituted state secrets.
Because each of these holdings is erroneous, we should have reviewed this case en banc.
II.
Abrogation of ordinary common law is rooted in due respect for Congress. “Federal courts, unlike state courts, are not general common-law courts and do not possess a general power to develop and apply their own rules of decision.” City of Milwaukee v. Illinois, 451 U.S. 304, 312 (1981). Accordingly, once “the field has been made the subject of comprehensive legislation,” federal common law must yield to the legislative enactment. Id. at 314. In the ordinary case, Congress

113a
need not affirmatively proscribe the use of federal common law, but it must “speak directly” to the questions previously addressed by common law. Id. at 315.
Yet this is no ordinary case. Here, the court didn’t abrogate run-of-the-mill, judicially created common law —it displaced an executive privilege. And it did so while summarily dismissing the constitutional and separationof-powers implications of its holding. Before supplanting a privilege held by a co-equal branch of government, courts would be wise to consider the Constitution and the history of the privilege at issue. As Justice Scalia recognized, “a governmental practice [that] has been open, widespread, and unchallenged since the early days of the Republic” deserves special deference. NLRB v. Noel Canning, 573 U.S. 513, 572 (2014) (Scalia, J., concurring) (citations omitted). This approach should guide our analysis here.
A.
Article II of the Constitution commands that “[t]he executive Power shall be vested in a President of the United States of America.” U.S. Const. art. II, § 1. And the President is also designated as the “Commander in Chief of the Army and Navy of the United States.” U.S. Const. art. II, § 2.
By these terms, the Constitution was originally understood to vest the President with broad authority to protect our national security. See Hamdi v. Rumsfeld, 542 U.S. 507, 580 (2004) (Thomas, J., dissenting) (“The Founders intended that the President have primary responsibility—along with the necessary power—to protect the national security and to conduct the Nation’s foreign relations.”). As Hamilton observed, a single

114a
Executive could better act with “[d]ecision, activity, secrecy, and d[i]spatch” as would be required to respond to the national security crises of the day. The Federalist No. 70 (Alexander Hamilton).
Secrecy, at least at times, is a necessary concomitant of the executive power and command of the Nation’s military. As commander of the Continental Army, George Washington explained to Patrick Henry that “naturally . . . there are some Secrets, on the keeping of which so, depends, oftentimes, the salvation of an Army: Secrets which cannot, at least ought not to, be [e]ntrusted to paper; nay, which none but the Commander in Chief at the time, should be acquainted with.”3
Given the Executive’s inherent need for secrecy, it comes as no surprise that early presidents regularly asserted a privilege over the disclosure of sensitive information.4 In 1792, when President Washington found himself faced with the first-ever congressional request for presidential materials, he recognized an executive privilege to avoid disclosure of secret material. See Abraham D. Sofaer, Executive Power and the Control of
3 Letter from George Washington to Patrick Henry (Feb. 24, 1777), Library of Congress, https://www.loc.gov/resource/mgw3h. 001/?sp=26&st=text.
4 Although this history recounts executive privileges in general, the state secrets privilege has been described as a “branch of the executive privilege.” Marriott Int’l Resorts, L.P. v. United States, 437 F.3d 1302, 1307 (Fed. Cir. 2006). To the extent there are distinctions among executive privileges, the state secrets privilege is more inviolable. See United States v. Nixon, 418 U.S. 683, 706 (1974) (distinguishing between privileges based “solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations” with those asserted from the “need to protect military, diplomatic, or sensitive national security secrets”).

115a
Information: Practice Under the Framers, 1977 Duke L.J. 1, 5-6. Washington’s Cabinet, including Hamilton and Jefferson, agreed “that the executive ought to communicate such papers as the public good would permit, and ought to refuse those, the disclosure of which would injure the public.” Id. at 6 (quoting The Complete Jefferson 1222 (S. Padover ed. 1943)); see also Mark J. Rozell, Restoring Balance to the Debate over Executive Privilege: A Response to Berger, 8 Wm. & Mary Bill Rts. J. 541, 556 (2000).
President Jefferson, even as a prominent critic of an overly strong executive branch, held the same view on the need for secrecy. As he put it in 1807, “[a]ll nations have found it necessary, that for the advantageous conduct of their affairs, some of these proceedings, at least, should remain known to their executive functionary only. He, of course, from the nature of the case, must be the sole judge of which of them the public interests will permit publication.”5 Similarly, Jefferson wrote to the prosecutor of the Aaron Burr case to explain that it was “the necessary right of the President . . . to decide, independently of all other authority, what papers, coming to him as President, the public interests permit to be communicated, & to whom.”6
Founding-era Presidents were not alone in their view. Members of Congress also respected some degree of executive privilege. When Washington refused
5 Letter from Thomas Jefferson to George Hay (June 17, 1807), Library of Congress, https://www.loc.gov/resource/mtj1.038_0446_ 0446/?st=text.
6 Letter from Thomas Jefferson to George Hay (June 12, 1807), Library of Congress, https://www.loc.gov/resource/mtj1.038_0446_ 0446/?st=text.

116a
a congressional request for materials, then-Representative James Madison disagreed with Washington’s refusal, but also recognized that “the Executive had a right, under a due responsibility, also, to withhold information, when of a nature that did not permit a disclosure of it at the time.” 5 Annals of Cong. 773 (1796); Sofaer, supra at 12. Others went further, asserting, for example, that the President “had an undoubted Constitutional right, and it would be his duty to exercise his discretion on this subject, and withhold any papers, the disclosure of which would, in his judgment, be injurious to the United States.” 5 Annals of Cong. 675 (1796) (remarks of Rep. Hillhouse).
Congress’s early actions also reflected a deference to the Executive’s authority to limit disclosures. When seeking information from the President, Congress narrowed its requests to such presidential papers “of a public nature,” 3 Annals of Cong. 536 (1792), or “as he may think proper,” 4 Annals of Cong. 250-51 (1794), and excluded “such [papers] as he may deem the public welfare to require not to be disclosed.” 16 Annals of Cong. 336 (1807). Thus, early Congresses “practically always” qualified their requests for foreign-affairs information to those documents that “in [the President’s] judgment [were] not incompatible with the public interest.” Henry M. Wriston, Executive Agents in American Foreign Relations 121-22 (1929).
Like the Executive and Congress, the Judiciary has long recognized an executive privilege over sensitive information. Chief Justice Marshall suggested that if the Attorney General “thought that any thing was communicated to him in confidence he was not bound to disclose it” in the litigation. Marbury v. Madison, 5 U.S. 137,

117a
144 (1803); see also Robert M. Chesney, State Secrets and the Limits of National Security Litigation, 75 Geo. Wash. L. Rev. 1249, 1271 (2007). And in response to President Jefferson’s objection to producing a letter in the Burr trial, Chief Justice Marshall explained that there was “nothing before the court which shows that the letter in question contains any matter the disclosure of which would endanger the public safety,” but “[t]hat there may be matter, the production of which the court would not require, is certain.” United States v. Burr, 25 F. Cas. 30, 37 (C.C.D. Va. 1807); see also Chesney, supra at 1272-73 (arguing that the Burr trial is significant for Marshall’s introduction of the idea that “risk to public safety might impact discoverability of information held by the government”). Perhaps anticipating the modern-day state secrets privilege, Marshall made clear “that the remedy he contemplated for executive withholding would be dismissal of the prosecution, rather than an order directing the President to appear or punishing any executive officer.” Sofaer, supra at 17.
The Supreme Court also recognized that President Lincoln “was undoubtedly authorized during the war, as commander-in-chief of the armies of the United States, to employ secret agents to enter the rebel lines and obtain information respecting the strength, resources, and movements of the enemy[.]” Totten v. United States, 92 U.S. 105, 106 (1875). In Totten, the Court dismissed a contract claim where the very existence of the alleged contract needed to be concealed. Id. Such concealment was a reality “in all secret employments of the government in time of war, or upon matters affecting our foreign relations, where a disclosure of the service might compromise or embarrass our government in its

118a
public duties, or endanger the person or injure the character of the agent.” Id.
Consistent with early historical practice and Foundingera understandings, modern courts have recognized the Article II dimension of executive privileges. See Nixon, 418 U.S. at 711 (explaining that when a privilege against disclosure relates to the “effective discharge of a President’s powers, it is constitutionally based”); Franchise Tax Bd. of California v. Hyatt, 139 S. Ct. 1485, 1498-99 (2019) (identifying the “executive privilege” as one of the “constitutional doctrines” that are “implicit in the [Constitution’s] structure and supported by historical practice”); see also Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988) (“The authority to protect [national-security] information falls on the President as head of the Executive Branch and as Commander in Chief.”).7 As Justice Jackson succinctly put it: “The President, both as Commander-in-Chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports neither are nor ought to be published to the world.” Chicago & S. Air Lines v. Waterman S. S. Corp., 333 U.S. 103, 111 (1948).
This brings us to the modern state secrets doctrine, articulated in United States v. Reynolds, 345 U.S. 1 (1953). In Reynolds, the Court recognized the Executive’s “well established” privilege against revealing military and state secrets. Id. at 7-8. The Court held
7 None of this is to say that the Executive has an absolute privilege to prevent the disclosure of material under any circumstance. I explore this history only insofar as it bears on the particular issue in this case—the proper standard to apply before abrogating the state secrets privilege.

119a
that “even the most compelling necessity cannot overcome the claim of privilege” if state secrets are at stake. Id. at 11; see also El-Masri v. United States, 479 F.3d 296, 303 (4th Cir. 2007) (“Although the state secrets privilege was developed at common law, it performs a function of constitutional significance, because it allows the executive branch to protect information whose secrecy is necessary to its military and foreign-affairs responsibilities.”). As an en banc court, we’ve respected the ability of the government to seek to “completely remove[]” state secrets from litigation or even seek “dismissal of the action.” Jeppesen, 614 F.3d at 1082-83. And in evaluating the assertion of the privilege, we “defer to the Executive on matters of foreign policy and national security.” Id.
B.
Given this constitutional and historical background, courts ought to tread carefully before jettisoning the state secrets privilege. Here, we should have done so by requiring a clear congressional statement before displacing the privilege. By waiting for a clear statement, we would have avoided assuming that Congress has “by broad or general language, legislate[d] on a sensitive topic inadvertently or without due deliberation.” Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 139 (2005) (plurality opinion). Instead, the court today undermines a longstanding executive privilege by finding abrogation lurking in FISA’s murky text.
Unlike abrogation of ordinary common law, which shows our deference to Congress, the displacement of the state secrets privilege creates a tension between Congress and the Executive because we elevate a statute over a constitutionally based privilege. As the

120a
Court advises, we should be “reluctant to intrude upon the authority of the Executive in military and national security affairs” until “Congress specifically has provided otherwise.” Egan, 484 U.S. at 530. Thus, whether FISA merely “speaks directly” to the same concerns as the privilege should not be sufficient to deprive the Executive of a constitutionally derived right. Instead, we should have constrained ourselves to respecting the privilege unless and until a statute unmistakably and unquestionably dictates otherwise.
This is not a novel idea. When a matter implicates constitutional concerns, the Court has regularly required a clear statement. See, e.g., Will v. Michigan Dep’t of State Police, 491 U.S. 58, 65 (1989) (requiring Congress to be “unmistakably clear” before altering the “usual constitutional balance between the States and the Federal Government”); Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992) (requiring an express statement before subjecting presidential action to APA review “[o]ut of respect for the separation of powers and the unique constitutional position of the President”). The Court has likewise required a clear statement before abrogating Indian treaty rights, out of a respect for tribal sovereignty. See United States v. Dion, 476 U.S. 734, 739 (1986) (explaining the reluctance to find abrogation absent “explicit statutory language”).
Applying such a standard is also consistent with the constitutional-avoidance canon. See United States ex rel. Attorney Gen. v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909) (“[W]here a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which

121a
such questions are avoided, our duty is to adopt the latter.”). Thus, when “a particular interpretation of a statute invokes the outer limits of Congress’ power,” as is the case here, we should “expect a clear indication that Congress intended that result.” I.N.S. v. St. Cyr, 533 U.S. 289, 299 (2001).
All in all, we should be “loath to conclude that Congress intended to press ahead into dangerous constitutional thickets in the absence of firm evidence that it courted those perils.” Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 466 (1989). But the court here is undeterred. It reads FISA as abrogating the privilege despite the lack of any firm evidence that Congress sought to do so. And rather than consulting the Constitution or the history of the state secrets privilege, the court simply waves off the privilege as something that “may” have a “constitutional core” or “constitutional overtones.” Am. Op. at 58-59. Respectfully, when we suspect that an executive privilege “may” have a “constitutional core,” we should do more before tossing it aside. Had we done so here, perhaps we would’ve recognized that the Article II roots of the privilege and its long history require that Congress be unmistakably clear before we simply replace it with a congressional enactment. And because FISA makes no mention of the state secrets privilege, the statute would fall pitifully short of this standard.
C.
Even if we should stick with the run-of-the-mill, “speaks directly” standard for displacement, FISA still falls short. Demonstrating that a statute speaks directly to the same questions as the common law is no low bar. See, e.g., United States v. Texas, 507 U.S. 529, 535

122a
(1993) (holding that silence in a statute “falls far short of an expression of legislative intent to supplant the existing common law in that area”). The court’s analysis does not clear this bar.
At the outset, the court’s opinion critically fails to recognize the circumscribed purpose of § 1806(f )—to provide a mechanism to review the admissibility of electronic surveillance evidence. See infra section III. Determining the admissibility of evidence is an everyday function of courts. Section 1806(f ) merely adds extra precautions in the case of electronic surveillance evidence. Nothing more. The statute’s design is in stark contrast to the constitutional purpose of the state secrets privilege—to ensure our “defer[ence] to the Executive on matters of foreign policy and national security” and to prevent courts from “second guessing the Executive in this arena.” Jeppesen, 614 F.3d at 1081-82. Contrary to the court’s interpretation, § 1806(f ) and the state secrets privilege stand side by side, maintaining the Judiciary’s control over the admissibility of evidence on one hand while deferring to the Executive’s authority to protect national security information on the other.
Relatedly, the court also overlooks a significant limitation on § 1806(f )’s scope of review. Section 1806(f ) authorizes the review of only a limited set of documents: the FISA “application, order, and such other materials.” The court’s decision treats this language as allowing review of “any” materials tangentially related to electronic surveillance. Am. Op. at 102-103. But the phrase “such other materials” cannot be read so boundlessly. See Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114-15 (2001) (“[W]here general words follow specific words in

123a
a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.”). Even without this canon, ordinary users of the English language understand the word “such” to mean “something similar,” “of the same class, type, or sort,” or “of the character, quality, or extent previously indicated or implied.” Such, Webster’s Ninth New Collegiate Dictionary (1986).8
Thus, the phrase “such other material” refers to documentary evidence like the “application” and “order”; in other words, materials containing information necessary to authorize the surveillance. See, e.g., § 1804(c) (“The judge may require the applicant to furnish such other information as may be necessary to make the determinations required [to authorize the surveillance under § 1804].”) (emphasis added). It does not broadly reach any evidence related to electronic surveillance as the court’s decision assumes. It certainly does not reach the evidence over which the government asserted the privilege—which goes far beyond FISA documents. See supra note 2.
Furthermore, § 1806(f ) didn’t create anything novel to suggest displacement of the state secrets privilege. The court’s opinion treats § 1806(f ) as enacting “an alternative mechanism” of ex parte, in camera review, which shows Congress’s intent to “eliminate[] the need to dismiss the case entirely” under the state secrets
8 Continuing to ignore this longstanding canon of interpretation, the concurrence to the denial of rehearing en banc doubles down on a boundless reading of this phrase. But this reading treats the word “such” as if it meant “any.” We should apply the statute as Congress wrote it, not as we might wish it to be.

124a
privilege. Am. Op. at 61-62. Not so. Pre-FISA courts already conducted in camera and ex parte review with regularity. See United States v. Belfield, 692 F.2d 141, 149 (D.C. Cir. 1982) (recognizing that prior to FISA courts had “constantly” and “uniformly” held that “the legality of electronic, foreign intelligence surveillance may, even should, be determined on an in camera, ex parte basis”). Given that ex parte, in camera review procedures coexisted with the state secrets privilege before FISA, there’s no reason to construe Congress’s codification of such procedures as an intent to eliminate the privilege.
Nor does § 1806(f )’s triggering process—the filing of an affidavit under oath by the Attorney General—support abrogation. The court views the superficial similarity between the assertion of the state secrets privilege by the head of a department, see Jeppesen, 614 F.3d at 1080, and § 1806(f )’s affidavit requirement as evidence that Congress intended abrogation. Such evidence actually cuts the other way. Under FISA, the definition of “Attorney General” permits a number of lowerranked Department of Justice officials to invoke FISA’s judicial review procedures, see § 1801(g), which makes sense given its main use in criminal prosecutions. By contrast, the head of any department has the non-delegable authority to assert the state secrets privilege. Jeppesen, 614 F.3d at 1080. Nothing in FISA’s text suggests that Congress sought to remove the privilege from the hands of the Secretary of State, the Director of National Intelligence, and other cabinet heads, and simply transfer it to the Attorney General and his subordinates. Contrary to the court’s assessment, the difference between who can assert the privilege and who

125a
can invoke § 1806(f ) reaffirms that FISA coexists with, rather than displaces, the state secrets privilege.
Finally, the court’s view of FISA as a replacement for the state secrets privilege ignores that the provision not only authorizes but mandates disclosure. See § 1806(g) (requiring the court to disclose evidence “to the extent that due process requires discovery or disclosure”); see also § 1806(f ) (authorizing the court to disclose evidence to the aggrieved person when “necessary to make an accurate determination of the legality of the surveillance”). And under the court’s broad reading, FISA may very well authorize disclosure of state secrets to the very subjects of the surveillance. See Am. Op. 68 (holding that plaintiffs’ request for electronic surveillance evidence triggers § 1806(f ) review).9
9 For the first time, Judge Berzon announces that the panel’s opinion is actually limited to the state secrets privilege’s dismissal remedy and that the government is free to reassert the privilege if the district court orders disclosure. See Concurrence at 110 n.1. This is news to anyone reading the panel opinion, which explicitly authorizes the district court to “disclose” state secrets evidence to the “plaintiffs.” See Am. Op. at 103. The opinion goes so far to warn that “not” disclosing such evidence could constitute an abuse of discretion. Id. at 103 n.49 (emphasis added).
Nevertheless, that the panel needs to amend its opinion through a nonbinding concurrence is reason enough for us to have reheard this case en banc. We owe the district courts and litigants a clear statement of the law—especially in a case implicating national security concerns. More fundamentally, this newly crafted limitation of the court’s holding doesn’t alter any of the concerns raised in this dissent and in many ways exacerbates them. The court’s holding, even as purportedly limited, impinges on a constitutionally based privilege based on a misreading of FISA. And if raising concerns

126a
But the state secrets privilege does not tolerate any disclosure—not even in camera and ex parte—if it can be avoided. See Reynolds, 345 U.S. at 10 (“[T]he court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.”). Such disclosures, when involving national security secrets, are inimical to the secrecy afforded to the Executive under Article II. Thus, FISA fails to speak directly to the paramount concern for the secrecy at the heart of the state secrets privilege.
Given the silence of the statutory text, it’s unsurprising that the court’s opinion resorts to legislative history to support abrogation. But “legislative history is not the law.” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1631 (2018). We “have no authority to enforce a principle gleaned solely from legislative history that has no statutory reference point.” Shannon v. United States, 512 U.S. 573, 584 (1994) (cleaned up). Even so, from hundreds of pages of legislative history, the court excavates only vague quotes describing FISA as a “fundamental reform” aimed at curbing unchecked executive surveillance. See Am. Op. at 63-64. The court can’t even muster up a single floor statement mentioning the state secrets privilege. Even for those who would rely on legislative history, this alone should end the inquiry.
Nevertheless, the legislative history shows that— contrary to the court’s view—the state secrets privilege coexists with FISA. For example, a committee report notes that preexisting “defenses against disclosure,”
about the court’s degradation of separation of powers and our constitutional design makes me a “veritable Russian doll” maker, see Concurrence at 108, then bring on the dolls.

127a
which would include the state secrets privilege, were intended to be undisturbed by FISA. See H.R. Rep. No. 95-1283, at 93 (1978). Another report explained that even when § 1806(f ) applied, the government could still “prevent[]” the court’s “adjudication of legality” simply by “forgo[ing] the use of the surveillance-based evidence” where disclosure of such evidence “would damage the national security.” S. Rep. No. 95-701, at 65 (1978). And another explains that § 1806(f ) was crafted “to prevent these carefully drawn procedures from being bypassed by the inventive litigant.” H.R. Rep. No. 95-1283, at 91.
Ultimately, despite the lengthy excursion into FISA’s legislative history, the court simply ignores material that undermines its interpretation. We’re instead offered only generic, cherry-picked quotes about FISA — proving yet again that relying on legislative history is “an exercise in looking over a crowd and picking out your friends.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005) (cleaned up). But if § 1806(f ) was not meant for “inventive litigants,” it was equally not meant for inventive courts.
III.
Most frustrating about our court’s decision here is that § 1806(f ) doesn’t even apply to plaintiffs’ case. Section 1806(f ) isn’t a freestanding vehicle to litigate the merits of any case involving electronic surveillance. FISA’s review procedures are triggered only to determine the admissibility of the government’s electronic surveillance evidence. In this case, the government never sought to admit and plaintiffs never sought to suppress any such evidence. Accordingly, § 1806(f ) wasn’t invoked. Yet the court creatively interprets two

128a
clauses of the statute to foist FISA’s review mechanism into this case. We should have corrected this misinterpretation through en banc review.
A.
Section 1806(f )’s review procedures are triggered if the government gives notice that it “intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding . . . , against an aggrieved person, any information obtained or derived from an electronic surveillance of that aggrieved person[.]” § 1806(c), (f ). The court held that when the government asserted the state secrets privilege it effectively gave notice that it intended to “use” the evidence against plaintiffs. This is wrong for two separate reasons.
1.
First, § 1806(c) doesn’t apply because the government isn’t seeking to use the state secrets as evidence. By asserting the privilege, the government is not using evidence in any reasonable sense of the word. Quite the opposite: the government seeks to remove this evidence to avoid disclosing state secrets. See Jeppesen, 614 F.3d at 1079 (“A successful assertion of privilege under Reynolds will remove the privileged evidence from the litigation.”). The court suggests that it “is precisely because the Government would like to use this information to defend itself that it has asserted the state secrets privilege.” Am. Op. at 67. But this is precisely backwards. It transforms the government’s expressed inability to use evidence into an expressed intent to use it. Such upside-down logic should not stand.

129a
And no matter what tortured conception of “use” the court conjures up here, to “use” something means to do so for its intended purpose. Smith v. United States, 508 U.S. 223, 242 (1993) (Scalia, J., dissenting). “When someone asks, ‘Do you use a cane?,’ he is not inquiring whether you have your grandfather’s silver-handled walking stick on display in the hall; he wants to know whether you walk with a cane.” Id. So too here: the government is not “using” the evidence merely by asserting the privilege over it. Evidence is “used” when it is being offered for admission or disclosed for some other evidentiary purpose.
2.
Second, it’s doubtful that § 1806(c) could apply here since there was no proceeding against “an aggrieved person.” By its terms, this provision applies only to a “trial, hearing, or other proceeding” “against an aggrieved person.” § 1806(c). This interpretation flows from the nearest-reasonable-referent canon. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 140-41 (2012) (“When the syntax involves something other than a parallel series of nouns or verbs, a prepositive or postpositive modifier normally applies only to the nearest reasonable referent.”). It’s also consistent with ordinary usage. Although the court now proclaims the opposite, see Am. Op. at 70, we commonly refer to trials, hearings, and proceedings as being “against” a party.10 Instead, the court curiously views
10 See, e.g., Paine v. City of Lompoc, 265 F.3d 975, 986 (9th Cir. 2001) (“trial against these two defendants”); United States v. Branch, 368 F. App’x 842, 844 (9th Cir. 2010) (“misconduct hearing against the government”); Lopez-Aguilar v. Barr, 948 F.3d 1143, 1146 (9th Cir. 2020) (“removal proceedings against Lopez-Aguilar”).

130a
“against an aggrieved person” as modifying the phrase “information obtained or derived.” But under that odd interpretation, this phrase would be modified twice by “aggrieved person.” The statute would be triggered by the government’s use of “any information obtained or derived [against the aggrieved person] from an electronic surveillance of that aggrieved person.” § 1806(c). That is not a sensical reading.11
B.
Perhaps sensing the weakness of its § 1806(c) reasoning, the court serves an alternative explanation for how FISA’s review procedures were triggered. Section 1806(f ) also provides that its procedures are invoked:
whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule . . . to discover or obtain applications or orders or other materials relating to electronic surveillance or
11 The phrase “against an aggrieved person” also doesn’t modify “enter into evidence or otherwise use or disclose.” For adherents to the familiar surplusage canon, this reading would render the phrase completely superfluous. After all, who else is the government going to use the evidence against but the aggrieved person? Additionally, in ordinary English, we don’t often speak about “disclos[ing]” information “against” someone. And if this construction was intended, we would have expected Congress to make this point clear by placing the phrase closer to the verbs it modifies. See United States v. Nader, 542 F.3d 713, 717-18 (9th Cir. 2008) (“A prepositional phrase with an adverbial or adjectival function should be as close as possible to the word it modifies to avoid awkwardness, ambiguity, or unintended meanings.”) (quoting The Chicago Manual of Style ¶ 5.167 (15th ed. 2003)).

131a
to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter[.]
§ 1806(f ).
By its context, this clause is designed to funnel an aggrieved person’s evidentiary motions and requests— which could be brought under a myriad of preexisting statutes or rules—into § 1806(f )’s admissibility review procedures. It is not an independent grant of authority to force government disclosure under § 1806(f ) anytime, for any reason, for any evidence, as long as a party has some claim relating to electronic surveillance.
But the court holds that the clause was triggered because the plaintiffs’ complaint requested injunctive relief ordering the government to destroy or return any unlawfully obtained materials. According to the court, by asking for the “return” of electronic surveillance, the complaint’s prayer for relief serves as a “request[]” to “obtain” that information within the meaning of § 1806(f ). Am. Op. 68.
Contrary to the court’s expansive interpretation, this clause is limited to procedural motions pertaining to the admissibility of evidence, like the familiar “motion[s]” to “discover, obtain, or suppress.” § 1806(f ). The clause’s use of the word “request” does not change this analysis since it must be read alike with “motion.” See Freeman v. Quicken Loans, Inc., 566 U.S. 624, 634-35 (2012) (applying the “commonsense canon” that “a word is given more precise content by the neighboring words with which it is associated”). In this context, these two terms refer to procedural actions such as a “production

132a
request” or a “motion to discover evidence,” not substantive requests for relief.12
We’re also not to read “motion or request” in a vacuum. The provision refers to motions and requests “[made] pursuant to any other statute or rule . . . to discover, obtain, or suppress evidence or information.” § 1806(f ). This context makes clear that that the provision covers only procedural motions or requests, not plaintiffs’ substantive claims for relief. It likewise confirms that the clause is not an independent grant of authority, but relies on other statutes and rules—which would remain subject to evidentiary privileges.
In treating plaintiffs’ complaint as a request sufficient to trigger § 1806(f ), the court reads too much into the word “obtain,” which must be read in the context of “the company it keeps.” Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995). Here, “obtain” is spliced between “discover” and “suppress,” both of which are procedural, evidentiary actions having nothing to do with substantive claims or injunctive relief. Accordingly, “obtain” is similarly limited to pretrial actions aimed at evaluating the admissibility of evidence. See, e.g., Fed. R. Civ. P. 26(b)(1) (“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case[.]”).
12 Seemingly whenever the phrase “motion or request” appears it refers to a procedural action. See, e.g., 17 U.S.C. § 803(b)(6)(C)(v) (“motion or request to compel production”); Fed. R. Crim. P. 29, Advisory Comm. Notes to 2005 amendments (“motion or request” for an extension of time); Charles A. Wright et al., Federal Practice and Procedure: Criminal § 261 (4th ed. 2020 Update) (Rule 12(c) authorizes time for “making of pre-trial motions or requests”).

133a
FISA’s structure also confirms the clause’s limitation to pretrial motions relating to the admissibility of evidence. All of the other triggering mechanisms of § 1806(f )—subsections (c), (d), and (e)—are pretrial, procedural actions to secure a ruling on the admissibility of evidence. This clause must be read in a similar light to avoid “giving unintended breadth to the Acts of Congress.” Yates v. United States, 135 S. Ct. 1074, 1085 (2015). It would be odd for Congress to ambiguously bury a substantive right for plaintiffs to “obtain” national security secrets in the muddled language of § 1806(f ). We know that this can’t be the case because Congress does not “hide elephants in mouseholes.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001).
Additionally, FISA does not recognize injunctive relief. ACLU Found. of S. California v. Barr, 952 F.2d 457, 470 (D.C. Cir. 1991) (“Not only does § 1806(f ) not create or recognize a cause of action for an injunction or for a declaratory judgment, but the scheme it sets up makes clear that nothing in FISA can be read to create such a cause of action.”). It can’t be the case that § 1806(f ) is triggered by a request for substantive relief that FISA itself does not contemplate.13
13 The concurrence makes much ado over § 1810, which authorizes a cause of action for FISA violations. But the fact that the privilege “could” lead to a dismissal of a § 1810 suit, Concurrence at 113-114, is largely irrelevant. The same is true of any other cause of action. And just because claims could be dismissed after a valid privilege assertion doesn’t mean all of them will be. Look no further than this very case: the government did not move to dismiss Plaintiffs’ § 1810 claim based on the privilege and the claim is going forward (and would’ve gone forward even without the panel’s abrogation of the privilege).

134a
Finally, this clause must be read in context of FISA’s single remedy after § 1806(f ) review—the “suppress[ion of] the evidence” or “otherwise grant[ing] the motion of the aggrieved person.” § 1806(g) (emphasis added). Thus, these motions and requests, however styled, all lead down the same road—suppression of evidence, or relief in aid of that remedy. Cf. James v. United States, 550 U.S. 192, 218 (2007) (Scalia, J., dissenting) (recognizing that “ ‘otherwise’ is defined as ‘[i]n a different manner’ or ‘in another way,’ ” so the use of the word signals other ways of doing something of the same character as what preceded it). As the heading of this provision confirms, the district court’s review can result in either “[s]uppression of evidence” or “denial of motion.” § 1806(g) (heading). Thus, whether they’re to “discover, obtain, or suppress,” these motions and requests only relate to the ultimate determination of the admissibility of evidence. Here, plaintiffs have neither a “motion to suppress,” nor any other motion to “otherwise grant,” should the district court rule in their favor after the § 1806(f ) review. Accordingly, try as it might, the court can’t jam a square peg into a round hole. Section 1806(f ) doesn’t apply here.
IV.
The court’s decision today seriously degrades the Executive’s ability to protect our Nation’s secrets and I fear it is only a stepping stone to further erosions. By abrogating the state secrets privilege, we not only upset the balance of power among co-equal branches of government, but we also do damage to a right inherent in the constitutional design and acknowledged since our Nation’s founding. And we do so without clear evidence

135a
that this is the result Congress sought. For these reasons, I respectfully dissent from the denial of rehearing en banc.

136a
APPENDIX B
UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA
SOURTHERN DIVISION
Case No. 8:11-cv-00301-CJC(VBKx) YASSIR FAZAGA, ALI UDDIN MALIK, YASSER ABDELRAHIM, PLAINTIFFS
v. FEDERAL BUREAU OF INVESTIGATION, ET AL.,
DEFENDANTS
Aug. 14, 2012
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS BASED ON THE STATE SECRETS PRIVILEGE
CORMAC J. CARNEY, District Judge. I. INTRODUCTION
The present case involves a group of counterterrorism investigations by the Federal Bureau of Investigation (‘‘FBI’’), dubbed ‘‘Operation Flex,’’ in which the FBI engaged a covert informant to help gather information on certain, unidentified individuals from 2006 to 2007. Although some of the general facts about Operation Flex, including the identity of one informant, Craig Monteilh, have been disclosed to the public, much

137a
of the essential details of the operation remain classified. After disclosure of Monteilh’s identity, Plaintiffs, three Muslim residents of Southern California, filed a putative class action against the FBI, the United States of America, and two FBI officers sued in their official capacities (together, the ‘‘Government’’) as well as five FBI agents sued in their individual capacities (collectively, ‘‘Defendants’’). Plaintiffs allege that Defendants conducted an indiscriminate ‘‘dragnet’’ investigation and gathered personal information about them and other innocent Muslim Americans in Southern California based on their religion. In doing so, Plaintiffs allege that Defendants violated their constitutional and civil rights under the First Amendment Free Exercise Clause and Establishment Clause, the Religious Freedom Restoration Act (‘‘RFRA’’), the Fifth Amendment Equal Protection Clause, the Privacy Act, the Fourth Amendment, the Foreign Intelligence Surveillance Act (‘‘FISA’’), and the Federal Tort Claims Act (‘‘FTCA’’). Defendants currently move to dismiss Plaintiffs’ claims and for summary judgment pursuant to Federal Rules of Civil Procedure 12 and 56 on various grounds, including the state secrets privilege. Defendants argue that all of Plaintiffs’ claims, aside from their FISA and Fourth Amendment claims, must be dismissed because litigation of those claims would risk or require disclosure of certain evidence properly protected by the Attorney General’s assertion of the state secrets privilege.
The Attorney General’s privilege claim in this action requires the Court to wrestle with the difficult balance that the state secrets doctrine strikes between the fundamental principles of liberty, including judicial transparency, and national security. Although, as the Ninth Circuit aptly opined, ‘‘as judges we strive to honor all of

138a
these principles, there are times when exceptional circumstances create an irreconcilable conflict between them.’’ Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1073 (9th Cir. 2010), cert. denied, — U.S. —, 131 S. Ct. 2442, 179 L. Ed. 2d 1235 (2011). ‘‘On those rare occasions, we are bound to follow the Supreme Court’s admonition that ‘even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that [state] secrets are at stake.’ ” Id. (quoting United States v. Reynolds, 345 U.S. 1, 11, 73 S. Ct. 528, 97 L. Ed. 727 (1953)). Such is the case here. After careful deliberation and skeptical scrutiny of the public and classified filings, the Court concludes that Plaintiffs’ claims against Defendants, aside from their FISA claim, must be dismissed under the state secrets privilege.1 Further litigation of those claims would require or unjustifiably risk disclosure of secret and classified information regarding the nature and scope of the FBI’s counterterrorism investigations, the specific individuals under investigation and their associates, and the tactics and sources of information used in combating possible terrorist attacks on the United States and its allies. The state secrets privilege is specifically designed to protect against disclosure of such
1 Defendants’ motions to dismiss Plaintiffs’ FISA claim are discussed in the Court’s separate, concurrently-issued Order. The Court finds that dismissal of Plaintiffs’ FISA claim against the Government is warranted because sovereign immunity has not been waived. The Court, however, finds that Plaintiffs have alleged sufficient facts to state a FISA claim against the individual-capacity Agent Defendants, who are not entitled to qualified immunity at this stage of the proceeding based on the allegations pled in the First Amended Complaint.

139a
information that is so vital to our country’s national security.
II. BACKGROUND
The central subject matter of this case is a group of counterterrorism investigations by the FBI, known as ‘‘Operation Flex,’’ which focused on fewer than 25 individuals and ‘‘was directed at detecting and preventing possible terrorist attacks.’’ (Pub. Giuliano Decl. ¶ 11.) During the investigations, the FBI utilized Craig Monteilh as a confidential informant from 2006 to 2007. (Id. ¶¶ 6, 11.) ‘‘The goal of Operation Flex was to determine whether particular individuals were involved in the recruitment and training of individuals in the United States or overseas for possible terrorist activity.’’ (Id. ¶ 11.) Plaintiffs allege that as part of Operation Flex, Defendants directed Monteilh to infiltrate mosques and indiscriminately collect information about Plaintiffs and other members of the Los Angeles and Orange County Muslim community because of their adherence to and practice of the religion of Islam from July 2006 to October 2007. (First Amended Complaint (‘‘FAC’’) ¶¶ 1-3, 86, 167.)
The FBI has only acknowledged that Monteilh engaged in confidential source work and disclosed limited information concerning Monteilh’s actions. (Pub. Giuliano Decl. ¶ 6.) For example, in an unrelated criminal proceeding in this district, United States v. Niazi, Case No. 8:09-cr-28-CJC(ANx), the FBI disclosed to the defendant Ahmadullah Niazi the content of the audio and video recordings containing conversations between him and Monteilh and others. (Id. ¶ 12.) The FBI also acknowledged in the Niazi case that Monteilh provided

140a
handwritten notes to the FBI and that it produced certain notes provided by Monteilh concerning Niazi. (Id.)2 However, essential details regarding Operation Flex and Monteilh’s activities have not been disclosed, and the Government asserts that this information ‘‘remains highly sensitive information concerning counterterrorism matters that if disclosed reasonably could be expected to cause significant harm to national security.’’ (Id. ¶ 6.) The allegedly privileged information includes (i) the identities of the specific individuals who have or have not been the subject of counterterrorism investigations, (ii) the reasons why individuals were subject to investigation, including in Operation Flex, and their status and results, and (iii) the particular sources and methods used in obtaining information for counterterrorism investigations, including in Operation Flex. (Holder Decl. ¶ 4; Pub. Giuliano Decl. ¶ 6.) The Government provides a more fulsome discussion of the nondisclosed matters in its ex parte, in camera materials that include two classified declarations and a classified supplemental memorandum. (Dkt. Nos. 35, 36, 56.)
A. The Parties
Plaintiffs, Sheikh Yassir Fazaga, Ali Uddin Malik, and Yasser AbdelRahim (collectively, ‘‘Plaintiffs’’), are resident members of the Muslim community in Southern California. (FAC ¶¶ 12-14.) Fazaga, a U.S. citizen born in Eritrea, has served as an ‘‘imam’’ or religious
2 With regard to these materials obtained by Monteilh, the FBI states that is it ‘‘presently assessing whether additional audio, video, or notes can be disclosed without risking disclosure of the privileged information . . . and [risking] significant harm to national security interests in protecting counterterrorism investigations.’’ (Pub. Giuliano Decl. ¶ 12.)

141a
leader of the Orange County Islamic Foundation (‘‘OCIF’’), a mosque in Mission Viejo, California, and has lectured widely on topics of Islam and American Muslims. (Id. ¶¶ 12, 55-56.) Malik, a U.S. citizen born in Southern California, is a resident of Orange County and has regularly attended religious services at the Islamic Center of Irvine (‘‘ICOI’’), a mosque in Irvine, California. (Id. ¶¶ 13, 68-69.) AbdelRahim, a U.S. permanent resident from Egypt, has regularly attended religious services at the ICOI. (Id. ¶¶ 14, 80.)
The Government Defendants consist of the FBI and the United States of America as well as Robert Mueller, Director of the FBI, and Steven M. Martinez, Assistant Director in Charge of the FBI Los Angeles Field Office, sued in their official capacities. (Id. ¶¶ 15-17, 255.) Defendants also include five FBI agents, Kevin Armstrong, Paul Allen, J. Stephen Tidwell, Barbara Walls, and Pat Rose (collectively, ‘‘Agent Defendants’’), who are sued in their individual capacities. (Id. ¶¶ 18-22.) Defendants Armstrong and Allen, who were both assigned to the Orange County area, were handlers for Monteilh and allegedly directed Monteilh to gather information on the Muslim community in Orange County and also supervised his purported surveillance activities. (Id. ¶¶ 18-19, 87.) Defendant Rose, who was assigned to the FBI’s Santa Ana branch office, supervised the FBI’s Orange County national security investigations and directly supervised Allen and Armstrong. (Id. ¶ 22.) Defendant Walls, the head of the FBI’s Santa Ana branch office, directly supervised Allen, Armstrong, and Rose. (Id. ¶ 21.) Defendant Tidwell served as the Assistant Director in Charge of the FBI’s Los Angeles Field Office from August 2005 to December 2007, and in that capacity, supervised operations in the

142a
Central District of California. (Id. ¶ 20.) Plaintiffs allege Tidwell authorized the selection of Monteilh as an informant and directed the actions of Armstrong, Allen, Rose, Walls, and other agents in the handling of Monteilh. (Id.)
B. Operation Flex3
Plaintiffs allege many disturbing facts about Operation Flex and wrongdoing by Defendants. Sometime prior to July 2006, Plaintiffs allege that the FBI hired Monteilh to be a paid informant to covertly gather information about Muslims in the Irvine area. (FAC ¶ 48.) Monteilh became a Muslim convert, began to attend the ICOI and five of the other largest mosques in Orange County, and assumed the name Farouk al-Aziz. (Id. ¶¶ 49-50, 92.) Monteilh interacted with many members of the Muslim community in Southern California during the relevant time period, including Plaintiffs, as part of a ‘‘broader pattern of dragnet surveillance program that Monteilh engaged in at the behest of his FBI handlers,’’ known as ‘‘Operation Flex,’’ which referenced Monteilh’s cover as a fitness instructor. (Id. ¶¶ 54-85, 86, 88.) Armstrong and Allen, who supervised all of Monteilh’s work, informed Monteilh that Operation Flex was part of a broader surveillance program that went beyond his work. (Id. ¶ 88.) Defendants did not limit Monteilh to specific targets on which they wanted information, but ‘‘repeatedly made clear that they were interested simply in Muslims’’ and that he
3 The Court emphasizes that the facts regarding Operation Flex are only allegations from the FAC and do not constitute established facts or disclosures by Defendants. The FBI has neither confirmed nor denied that Monteilh collected information specifically in connection with any of the Plaintiffs or the putative class members.

143a
should gather ‘‘as much information on as many people in the Muslim community as possible,’’ with heightened attention to particularly religious members and those who attracted Muslim youths. (Id. ¶¶ 89, 90, 98.) Plaintiffs allege that ‘‘[t]he central feature of the FBI agents’ instructions to Monteilh was their directive that he gather information on Muslims, without any further specification,’’ and indiscriminately gather information about them under the maximum that ‘‘everybody knows somebody’’ who may have some connection with the Taliban, Hezbollah, and Hamas. (Id. ¶¶ 89, 117.)
Over the course of Operation Flex, Plaintiffs allege that Armstrong and Allen sent Monteilh to conduct surveillance and audio recording in approximately ten mosques in Los Angeles and Orange County. (Id. ¶ 92.) Defendants provided Monteilh with surveillance tools, including sophisticated audio and video recording devices, such as key fobs with audio recording capability and a hidden camera outfitted to his shirt, to conduct an ‘‘indiscriminate surveillance’’ of Muslims, who were targeted ‘‘solely due to their religion.’’ (Id. ¶¶ 86, 122, 124, 128.) Defendants gathered information about Plaintiffs and other members of the Muslim community through these devices and from extensive review of Monteilh’s handwritten notes about all aspects of his daily interactions with Muslims. (Id. ¶ 122.) Plaintiffs allege that Armstrong and Allen were well aware that many of the surveillance tools they had given Monteilh were being used illegally without warrants. (Id. ¶ 136.)
Plaintiffs allege that the FBI Agents instructed Monteilh to utilize surveillance strategies aimed at gathering information on Muslims in an indiscriminate manner.

144a
(Id. ¶ 99.) The Agents’ key directive was that Monteilh gather information from ‘‘anyone from any mosque without any specific target, for the purpose of collecting as much information as possible about Muslims in the community.’’ (Id. ¶ 114.) Armstrong and Allen instructed Monteilh to obtain information through various methods, including seizing every opportunity to meet people, obtain their contact information, and learn about their background and religious and political views. (Id. ¶ 101.) Monteilh did not limit surveillance to any particular group of people but instead socialized widely with different groups and individuals regardless of their ethnic origin or language. (Id. ¶¶ 102-103.) Armstrong and Allen further instructed Monteilh to gather information on Muslims’ charitable givings, attend Muslim fundraising events, collect information on travel plans of Muslims in the community, attend lectures by Muslim scholars and other guest speakers, attend classes and dawn prayers at mosques, track followers of extremist jihadist websites, elicit people’s views on extremist scholars and thinkers, work out with Muslims he met at a local gym, and gather any compromising information about Muslims that Defendants could use against them to persuade them to become informants. (Id. ¶¶ 10516.) Plaintiffs allege that the consistent theme throughout these different surveillance gathering strategies was in Armstrong’s and Allen’s ‘‘expressed interest in gathering information only on Muslims,’’ and their setting aside any non-Muslims who were identified through surveillance Monteilh performed. (Id. ¶ 120.)
Plaintiffs allege that through Monteilh, Defendants gathered information on Muslims and their associates consisting of hundreds of phone numbers and thousands

145a
of email addresses; background information on hundreds of individuals; hundreds of hours of video recordings that captured the interiors of mosques, homes, businesses, and the associations of Muslims; and thousands of hours of audio recordings of conversations as well as recordings of religious lectures, discussion groups, classes, and other Muslim religious and cultural events occurring in mosques. (Id. ¶¶ 2, 137.) Plaintiffs allege that the FBI’s ‘‘dragnet investigation did not result in even a single conviction related to counterterrorism’’ because, unsurprisingly, ‘‘the FBI did not gather the information based on suspicion of criminal activity, but instead gathered the information simply because the targets were Muslim.’’ (Id. ¶ 3.) Plaintiffs allege Monteilh discontinued working for Defendants as an informant around September 2007. (Id. ¶ 151.)
C. Disclosure of Monteilh’s Identity
In February 2009, the FBI acknowledged that it had utilized Monteilh as a confidential informant during a criminal proceeding in the Niazi case. (Pub. Giuliano Decl. ¶ 11; FAC ¶¶ 155-59.)4 Subsequent to this disclosure, Monteilh has provided numerous statements to the media discussing his purported activities on behalf of the FBI. (Pub. Giuliano Decl. ¶ 14; FAC ¶ 162.)5 In January 2010, Monteilh also filed a civil lawsuit under 42 U.S.C. §§ 1983 and 1985 in this district against the FBI, its agents, and the City of Irvine in Monteilh v. FBI,
4 This Court dismissed the Niazi indictment without prejudice on September 30, 2010. (Case No. 8:09-cr-28-CJC (ANx), Ct. Order, Dkt. No. 40, Sept. 30, 2010.)
5 See, e.g., Jerry Markon, Tension Grows between Calif. Muslims, FBI after Informant Infiltrates Mosque, WASH. POST (Dec. 5, 2010).

146a
Case No. 8:10-cv-102-JVS(RNBx). In that case, Monteilh made allegations related to his work as an FBI source in Operation Flex. (Pub. Giuliano Decl. ¶ 14; FAC ¶ 164.) The FBI has neither confirmed nor denied any of Monteilh’s public allegations concerning his work for the agency, and the FBI maintains that Monteilh’s allegations do not constitute a disclosure or confirmation by the FBI of any information concerning his activities as an informant. (Pub. Giuliano Decl. ¶ 14; FAC ¶ 164.) In this case, Monteilh has submitted a declaration, dated April 23, 2010, in support of Plaintiffs’ opposition to Defendants’ motions to dismiss in which he makes allegations regarding his work for the FBI in Operation Flex similar to those asserted in the FAC. (Dkt. No. 66; FAC ¶ 167.)
D. The Lawsuit
On February 22, 2011, Plaintiffs filed the instant suit against the FBI and its officers and agents. (Dkt. No. 1.) On August 1, 2011, the FBI, Mueller, and Martinez moved to dismiss the Complaint and for summary judgment on the grounds, inter alia, that certain evidence needed to litigate Plaintiffs’ claims is properly protected by the Attorney General’s assertion of the state secrets privilege. (Dkt. No. 32.) In support of their privilege claim, they submitted for ex parte, in camera review by the Court (i) a classified declaration of Mark F. Giuliano, FBI Assistant Director, Counterterrorism Division and (ii) a classified supplemental memorandum. (Dkt. Nos. 35, 36.) The Agent Defendants also separately moved to dismiss the Complaint. (Dkt. Nos. 41-42.) Shortly thereafter, Plaintiffs moved ex parte to stay the Court’s review of the classified filings until after its consideration of whether the state secrets argument would apply

147a
in this case as a matter of law. (Dkt. No. 39.) Plaintiffs argued that such a ruling would prevent the Court from unnecessarily reviewing information that could be highly prejudicial to Plaintiffs and not properly subject to consideration by the Court. (Pls. Ex Parte App., at 8.) The Court denied Plaintiffs’ ex parte application because the Court determined that there was no legal bar to its review of the classified submissions and because it was confident that its independent evaluation would not be compromised by the contents of those submissions. (Ct. Order, Dkt. No. 46, Aug. 11, 2011.)
On September 13, 2011, Plaintiffs filed the operative FAC, adding a claim under the FTCA against the United States. (Dkt. No. 49.) Plaintiffs assert a total of eleven causes of action against Defendants: (1) violation of the First Amendment Establishment Clause under Bivens and 28 U.S.C. § 1331 (against all Defendants except the FBI and United States); (2) violation of the First Amendment Establishment Clause under 42 U.S.C. § 1985(3) and 28 U.S.C. § 1343 (against Agent Defendants); (3) violation of the First Amendment Free Exercise Clause under Bivens and 28 U.S.C. § 1331 (against all Defendants except the FBI and United States); (4) violation of the First Amendment Free Exercise Clause under 42 U.S.C. § 1985(3) and 28 U.S.C. § 1343 (against Agent Defendants); (5) violation of RFRA, 42 U.S.C. § 2000bb-1 (against all Defendants); (6) violation of the Fifth Amendment Equal Protection Clause under Bivens and 28 U.S.C. § 1331 (against all Defendants except the FBI and United States); (7) violation of the Equal Protection Clause under 42 U.S.C. § 1985(3) and 28 U.S.C. § 1343 (against Agent Defendants); (8) violation of the Privacy Act, 5 U.S.C. § 552a(a)-(l) (against the FBI); (9) violation of the Fourth Amendment under

148a
Bivens and 28 U.S.C. § 1331 (against the FBI and United States); (10) violation of FISA, 50 U.S.C. § 1810 (against all Defendants); and (11) invasion of privacy, violation of Cal. Civ. Code § 52.1, and intentional infliction of emotion distress under the FTCA, 28 U.S.C. §§ 1346(b), 2671, et seq. (against the United States).6 Plaintiffs request damages as well as injunctive relief in the form of the destruction or return of any information gathered through Operation Flex. Plaintiffs further seek certification of ‘‘[a]ll individuals targeted by Defendants for surveillance or information-gathering through Monteilh and Operation Flex, on account of their religion, and about whom the FBI thereby gathered personally identifiable information.’’ (FAC ¶ 219.)
On November 4, 2011, the Government moved to dismiss the FAC and for summary judgment pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 56. (Dkt. No. 55.) The Government moves to dismiss all of Plaintiffs’ claims, aside from the FISA and Fourth Amendment claims, on the grounds that, inter alia, litigation of these claims would risk or require the disclosure of certain evidence properly protected by the Attorney General’s assertion of the state secrets privilege. In support of their privilege claim, the Government relies on its previously-filed public declaration from the Attorney General, Eric H. Holder, dated July 29, 2011, (Dkt. No. 32-3), and a public declaration from Mark Giuliano, dated July 25, 2011, (Dkt. No. 33). The Government also relies on its previously-lodged, August 1, 2011
6 For claims 1, 3, 6, and 9, Plaintiffs assert claims for damages under Bivens against individual-capacity Agent Defendants and assert claims for injunctive relief under Section 1331 against the officialcapacity Defendants. (See FAC ¶ 226 n.37.)

149a
in camera filings, the classified declaration of Giuliano and the classified supplemental memorandum, (Dkt. Nos. 35, 36). In addition, the Government lodged a classified supplemental declaration of Giuliano on November 4, 2011, which provided a status update on certain investigations discussed in the classified Giuliano Declaration. (Dkt. No. 56.)
Defendants Tidwell and Walls separately moved to dismiss claims against them under Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 58.) Tidwell and Walls argue, in part, that the Government’s assertion of the state secrets privilege mandates dismissal of Counts 1 through 7. (Tidwell/Walls Br., at 9-12.) Defendants Rose, Armstrong, and Allen also moved to dismiss the FAC under Rule 12(b)(6) and joined in the motions to dismiss filed by the Government and Defendants Tidwell and Walls. (Dkt. No. 57.) On December 23, 2011, Plaintiffs opposed the Government’s motion and filed a combined opposition to the Agent Defendants’ motions to dismiss. (Dkt. Nos. 63, 64.) Defendants filed replies in support of their respective motions to dismiss on January 20, 2012. (Dkt. Nos. 69-71.) After granting the parties’ requests for continuances of the hearing on Defendants’ motions to dismiss, the Court heard extended oral arguments on the motions from the parties’ counsel on August 14, 2012.
III. LEGAL STANDARD
A. The State Secrets Doctrine
‘‘The Supreme Court has long recognized that in exceptional circumstances courts must act in the interest of the country’s national security to prevent disclosure of state secrets, even to the point of dismissing a case

150a
entirely.’’ Jeppesen Dataplan, 614 F.3d at 1077 (citing Totten v. United States, 92 U.S. 105, 107, 23 L. Ed. 605 (1875)). Created by federal common law, the state secrets doctrine bars litigation of an action entirely or excludes certain evidence because the case or evidence risks disclosure of ‘‘state secrets’’—that is, ‘‘matters which, in the interest of national security, should not be divulged.’’ Reynolds, 345 U.S. at 10, 73 S. Ct. 528. Although developed at common law, the state secrets doctrine also ‘‘performs a function of constitutional significance, because it allows the executive branch to protect information whose secrecy is necessary to its military and foreign-affairs responsibilities.’’ El-Masri v. United States, 479 F.3d 296, 303 (4th Cir. 2007). At the same time, the state secrets doctrine does not represent an abdication of judicial control over access to the courts, as the judiciary is ultimately tasked with deciding whether the doctrine properly applies to a particular case. Id. at 312. The state secrets doctrine thus attempts to strike a difficult balance between the Executive’s duty to protect national security information and the judiciary’s obligation to preserve judicial transparency in its search for the truth. Id. at 303-305.
There are two modern applications of the state secrets doctrine: (1) a justiciability bar that forecloses litigation altogether because the very subject matter of the case is a state secret (the ‘‘Totten bar’’) and (2) an evidentiary privilege that excludes certain evidence because it implicates secret information and may result in dismissal of claims (the ‘‘Reynolds privilege’’). Jeppesen Dataplan, 614 F.3d at 1077-80. While distinct, the Totten bar and the Reynolds privilege converge in situations where the government invokes the privilege—as it

151a
may properly do—before waiting for an evidentiary dispute to arise during discovery or trial. Id. at 1080 (‘‘The privilege may be asserted at any time, even at the pleading stage.’’). The privilege indisputably may be raised with respect to discovery requests seeking allegedly privileged information or to prevent disclosure of such information in a responsive pleading. Id. at 1081. Alternatively, ‘‘the government may assert a Reynolds privilege claim prospectively, even at the pleading stage, rather than waiting for an evidentiary dispute to arise during discovery or trial.’’ Id. In such circumstances, the Totten bar necessarily informs the Reynolds privilege in a ‘‘continuum of analysis.’’ Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190, 1201 (9th Cir. 2007).
1. The Totten Bar
The Supreme Court in Totten v. United States articulated the general principle that ‘‘public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential.’’ 92 U.S. at 107. The Totten bar is a categorical bar ‘‘where the very subject matter of the action . . . [is] a matter of state secret,’’ such that the action is ‘‘dismissed on the pleadings without ever reaching the question of evidence since it [is] so obvious that the action should never prevail over the privilege.’’ Reynolds, 345 U.S. at 11 n.26, 73 S. Ct. 528; accord Jeppesen Dataplan, 614 F.3d at 1077-78; see also Al-Haramain, 507 F.3d at 1197 (‘‘[W]here the very subject matter of a lawsuit is a matter of state secret, the action must be dismissed without reaching the question of evidence.’’). The purpose of the Totten bar is not merely to defeat the asserted

152a
claims, but to foreclose judicial inquiry altogether. Tenet v. Doe, 544 U.S. 1, 6 n.4, 125 S. Ct. 1230, 161 L. Ed. 2d 82 (2005); Jeppesen Dataplan, 614 F.3d at 1078.
The Supreme Court has very sparingly applied this bar to preclude judicial review of an action entirely. See Totten, 92 U.S. at 106-107 (barring suit by Civil War spy against the United States for alleged failure to pay for espionage services because the case was predicated on the existence of an undisclosed contract for secret services with the government); Weinberger v. Catholic Action of Hawaii/Peace Educ. Project, 454 U.S. 139, 146-47, 102 S. Ct. 197, 70 L. Ed. 2d 298 (1981) (holding action against the United States Navy exceeded judicial scrutiny based on state secrets because it implicated information regarding nuclear weapons storage that the Navy could not admit or deny); Tenet, 544 U.S. at 8-10, 125 S. Ct. 1230 (precluding judicial review of action by former Cold War spies against the Central Intelligence Agency for allegedly reneging on promise to pay for espionage services because plaintiffs’ relationship with the government was state secrets). Beyond these three cases, the Supreme Court has not provided further guidance on what subject matters would constitute state secrets. The Ninth Circuit in Jeppesen, however, declined to interpret the Totten bar as only applying to certain types of cases, such as those involving covert espionage agreements, but emphasized that ‘‘the Totten bar rests on a general principle that extends beyond that specific context’’ and applies “ ‘where the very subject matter of the action’ is ‘a matter of state secret.’ ” 614 F.3d at 1078-79 (quoting Reynolds, 345 U.S. at 11 n.26, 73 S. Ct. 528). The El-Masri court further clarified that ‘‘[t]he controlling inquiry is not whether the general

153a
subject matter of an action can be described without resort to state secrets’’; rather, it must be ascertained ‘‘whether an action can be litigated without threatening the disclosure of such state secrets.’’ El-Masri, 479 F.3d at 308. ‘‘Thus, for purposes of the state secrets analysis, the ‘central facts’ and ‘very subject matter’ of an action are those facts that are essential to prosecuting the action or defending against it.’’ Id.
2. The Reynolds Privilege
The second application of the state secrets doctrine is an evidentiary privilege against revealing state secrets. Jeppesen Dataplan, 614 F.3d at 1079. Derived from United States v. Reynolds, this privilege applies when the court is satisfied ‘‘from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose . . . matters which, in the interest of national security, should not be divulged.’’ Reynolds, 345 U.S. at 10, 73 S. Ct. 528; see also id. at 10-11, 73 S. Ct. 528 (finding that the government made a sufficient showing of privilege, ‘‘under circumstances indicating a reasonable possibility that military secrets were involved,’’ to cut off demand for an accident investigation report of an aircraft testing secret electronic equipment). A successful assertion of the Reynolds privilege will remove the privileged evidence from the case. Jeppesen Dataplan, 614 F.3d at 1079. In some instances, however, ‘‘the assertion of the privilege will require dismissal because it will become apparent during the Reynolds analysis that the case cannot proceed without privileged evidence, or that litigating the case to a judgment on the merits would present an unacceptable risk of disclosing state secrets.’’ Id. The Ninth Circuit in Jeppesen Dataplan applied

154a
the Reynolds privilege to dismiss an action brought by foreign nationals who were allegedly transported in secret to other countries where they were detained and interrogated under the Central Intelligence Agency’s (‘‘CIA’’) extraordinary rendition program. 614 F.3d at 1085-90. The Ninth Circuit held that dismissal under the state secrets privilege was required under Reynolds because there was no feasible way to litigate the defendant’s liability without creating ‘‘an unjustifiable risk of divulging state secrets’’ related to the CIA’s secret intelligence activities. Id. at 1087. When such dismissal is required, the Reynolds privilege converges with the Totten bar. Id. at 1083.
An analysis of claims under the Reynolds privilege involves three steps. First, the court must ascertain whether the procedural requirements for invoking the privilege, consisting of a formal claim by the government, have been satisfied. Id. at 1080. Second, the court must independently determine whether the information is privileged. Id. Third, the court must determine how the case should proceed in light of the successful privilege claim. Id. Once the privilege is properly invoked, and the court is satisfied as to the danger of disclosing state secrets, the privilege is absolute. Kasza v. Browner, 133 F.3d 1159, 1166 (9th Cir. 1998); see also Reynolds, 345 U.S. at 11, 73 S. Ct. 528 (‘‘[E]ven the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that [state] secrets are at stake.’’); In re United States, 872 F.2d 472, 476 (D.C. Cir. 1989) (‘‘No competing public or private interest can be advanced to compel disclosure [of privileged information].’’ (citation and quotes omitted)). This is because, in determining whether the privilege applies to a particular case, ‘‘the balance has already

155a
been struck in favor of protecting secrets of state over the interest of a particular litigant.’’ In re United States, 872 F.2d at 476 (citation and quotes omitted). The Supreme Court has therefore cautioned that the privilege ‘‘is not to be lightly invoked,’’ and must be applied no more often or extensively than necessary. Reynolds, 345 U.S. at 7-8, 73 S. Ct. 528; see also Jeppesen Dataplan, 614 F.3d at 1080.
B. Threshold Considerations
Plaintiffs raise two threshold issues with regard to whether the state secrets doctrine may apply in this case, neither of which are persuasive. First, Plaintiffs argue that FISA preempts the state secrets privilege. Plaintiffs insist that because most, if not all, of the conduct at issue in this case involves electronic surveillance in the name of foreign intelligence gathering in the domestic context, the Court should adhere to the procedures that Congress has set for the treatment of secret evidence in FISA.7 (Pls. Opp’n to Gov’t, at 20-21, 2631.) The Court disagrees. As a preliminary matter, the question of whether FISA preempts the state secrets privilege is not at issue because Defendants have not moved to dismiss the FISA claim on privilege grounds. Moreover, even if FISA preempts the state secrets privilege with respect to a FISA claim, as ruled by the Northern District of California in In re Nat’l Sec. Agency Telecomms. Records Litig., 564 F. Supp. 2d 1109, 1120 (N.D. Cal. 2008),8 Plaintiffs cite no authority
7 See the Court’s concurrently-filed Order, which discusses the FISA claim in detail.
8 The Court in In re National Security determined that ‘‘FISA should displace federal common law rules such as the state secrets privilege with regard to matters within FISA’s purview.’’ 564

156a
for the proposition that FISA also preempts non-FISA claims. Nor has the Court found any statute, including the language of FISA, or case law supporting an expansive application of FISA to Plaintiffs’ non-FISA claims in this case. Plaintiffs rely on In re National Security Agency, 564 F. Supp. 2d at 1118, for the proposition that FISA preempts the state secrets privilege in cases, as here, which involve electronic surveillance undertaken in the name of national security. (Pls. Opp’n to Gov’t, at 26, 29). However, the court in that case clarified that ‘‘FISA does not preempt the state secrets privilege as to matters that are not within FISA’s purview,’’—that is, ‘‘activities [that] include foreign intelligence surveillance.’’ In re National Security Agency, 564 F. Supp. 2d at 1118. In the present action, however, the central subject matter is Operation Flex, a group of counterterrorism investigations that extend well beyond the purview of electronic surveillance as discussed in the Government’s public and classified filings. Plaintiffs’ nonFISA claims also rely upon allegations far broader in scope than allegations upon which the FISA claim is predicated, and litigating those non-FISA claims will require information, including privileged evidence, beyond that contemplated by FISA. (See infra Part IV.C.)
Second, Plaintiffs argue that the Constitution prohibits dismissal of this case on state secret grounds because they seek injunctive relief from on-going constitutional
F. Supp. 2d at 1120. As the Government does not move to dismiss the FISA claim on the basis of state secrets, the Court need not and does not decide at this time whether FISA preempts the state secrets privilege with respect to a FISA claim.

157a
violations. (Pls. Opp’n to Gov’t, at 20, 40-51.) This argument, likewise, is unsupported by any authority, let alone Ninth Circuit or Supreme Court precedent. The principles of the state secrets doctrine make clear that it is analyzed and applied to cases irrespective of the types of claims or relief sought. See Tenet, 544 U.S. at 8, 125 S. Ct. 1230 (‘‘[P]ublic policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential.’’ (quoting Totten, 92 U.S. at 107)); Kasza, 133 F.3d at 1166 (‘‘Once the privilege is properly invoked and the court is satisfied as to the danger of divulging state secrets, the privilege is absolute . . . ’’); Jeppesen Dataplan, 614 F.3d at 1081 (‘‘If this standard [for privilege] is met, the evidence is absolutely privileged, irrespective of the plaintiffs’ countervailing need for it.’’). In fact, in Al-Haramain, the Ninth Circuit found that the state secrets privilege applied to and warranted dismissal of constitutional claims involving requests for injunctive relief. 507 F.3d at 1205. In that case, Al-Haramain Islamic Foundation, a designated terrorist organization, and two of its attorneys brought suit against the government in connection with the government’s Terrorist Surveillance Program. 507 F.3d at 1193. The plaintiffs in that case alleged that they were subject to warrantless electronic surveillance in violation of FISA and various provisions of the Constitution. Id. In addition to a request to enjoin further warrantless surveillance, the plaintiffs sought the same injunctive relief as Plaintiffs here do—disclosure and/or destruction of information and records acquired from allegedly unlawful surveillance—and also similarly alleged violations under the First and Fourth Amendments. Al-Haramain Islamic Found., Inc. v. Bush,

158a
451 F. Supp. 2d 1215, 1218 (D. Or. 2006), rev’d and remanded by Al-Haramain, 507 F.3d 1190. The Ninth Circuit in Al-Haramain found dismissal of the action appropriate under the Reynolds privilege because the defendant could not establish standing without the privileged information. 507 F.3d at 1205.9 Accordingly, the Court finds that the state secrets doctrine may properly be considered in this case.
IV. APPLICATION OF THE STATE SECRETS DOCTRINE
The Government requests dismissal of all of Plaintiffs’ claims against Defendants, aside from the FISA and Fourth Amendment claims, under the Reynolds privilege. The Government argues that dismissal of these claims under the state secrets privilege is appropriate because it has satisfied the procedural requirements for invoking the privilege and further litigation of the action would risk or require the disclosure of state secrets related to Operation Flex. More specifically, the Government contends that because Plaintiffs’ claims are premised on their core allegation that Defendants conducted an indiscriminate religion-based investigation, any rebuttal against this allegation would risk or require disclosure of privileged information—whom and what the FBI was investigating under Operation Flex and why—in order to establish that the investigation was properly predicated and focused. (Gov’t Br., at 56, 45-53.) The Court agrees. As discussed more fully
9 Plaintiffs’ argument is additionally misplaced because, even assuming that their argument regarding constitutional claims for injunctive relief had merit, it would be inapplicable as to their claims for damages against Defendants.

159a
below, because further litigation of this action would require or, at the very least, create an unjustifiable risk of disclosure of state secrets, the Court finds that dismissal of Plaintiffs’ claims, aside from their FISA claim, is required under the Reynolds privilege.
A. Procedural Requirements
The Reynolds privilege may only be asserted by the government, and a private party can neither claim nor waive the privilege. Jeppesen Dataplan, 614 F.3d at 1080; Reynolds, 345 U.S. at 7, 73 S. Ct. 528. The government cannot invoke the privilege lightly, especially where it seeks not merely to preclude the production of certain evidence, but to obtain dismissal of the action entirely. Jeppesen Dataplan, 614 F.3d at 1080. There are several mechanisms to ensure that the Reynolds privilege is invoked no more than is necessary. Id. First, ‘‘[t]here must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer.’’ Reynolds, 345 U.S. at 7-8, 73 S. Ct. 528. ‘‘This certification is fundamental to the government’s claim of privilege,’’ as the decision to invoke the privilege must ‘‘ ‘be a serious, considered judgment, not simply an administrative formality.’ ’’ Jeppesen Dataplan, 614 F.3d at 1080 (quoting United States v. W.R. Grace, 526 F.3d 499, 507-508 (9th Cir. 2008) (en banc)). The formal claim must ‘‘reflect the certifying official’s personal judgment,’’ and be presented in ‘‘sufficient detail’’ to permit the court ‘‘to make an independent determination of the validity of the claim of privilege and the scope of the evidence subject to the privilege.’’ Id. at 1080.

160a
Second, even before invoking the privilege in court, the government must adhere to its own State Secrets Policy, promulgated by the Obama administration in a memorandum by the Attorney General in September 2009, effective October 1, 2009. (Holder Decl. ¶ 12 & Exh. 1 [State Secrets Policy] ); see also Jeppesen Dataplan, 614 F.3d at 1077. The Policy outlines the legal standard for invoking the privilege: the government will assert and defend an assertion of the state secrets privilege in litigation ‘‘when a government department or agency seeking to assert the privilege makes a sufficient showing that assertion of the privilege is necessary to protect information the unauthorized disclosure of which reasonably could be expected to cause significant harm to the national defense or foreign relations (‘‘national security’’) of the United States.’’ (Holder Decl., Exh. 1 ¶ 1(A).) The privilege must also be ‘‘narrowly tailored,’’ such that the ‘‘privilege should be invoked only to the extent necessary to protect against the risk of significant harm to national security.’’ (Id. ¶ 1(B).) The Policy further sets limitations for invoking the privilege, including not defending an invocation of the privilege to ‘‘conceal violations of the law, inefficiency, or administrative error’’; to ‘‘prevent embarrassment to a person, organization, or agency of the United States government’’; or to ‘‘prevent or delay the release of information the release of which would not reasonably be expected to cause significant harm to national security.’’ (Id. ¶ 1(C).) The Policy further outlines the initial procedure for invoking the privilege, which includes sufficient evidentiary support and recommendation from the Assistant Attorney General; evaluation, consultation, and recommendation by a state secrets review committee; and approval by the Attorney General. (Id. ¶¶ 2-4.)

161a
The Government has properly invoked the state secrets privilege. The Government has submitted a public declaration from Eric Holder in his capacity as the Attorney General and head of the Department of Justice. The Attorney General has made a formal assertion of the state secrets privilege after personal consideration of the public and classified materials at the request of the director of the FBI: ‘‘After careful and actual personal consideration of the matter, I have concluded that disclosure of the three categories of information described below and in more detail in the classified Giuliano Declaration could reasonably be expected to cause significant harm to the national security, and I therefore formally assert the state secrets privilege over this information.’’ (Holder Decl. ¶ 3.) The Attorney General also avers that the requirements for an assertion and defense of the state secrets privilege have been satisfied in accordance with the State Secrets Policy. (Id. ¶ 12.)10
10 The Court cannot and does not comment on whether the Government has properly adhered to its State Secrets Policy, as this is internal to the Executive branch, and the Policy does not create a substantive or procedural right enforceable at law or in equity against the Government. (See Holder Decl., Exh. 1 ¶ 7.) However, the Court does observe that the Government has narrowly tailored its assertion of the privilege by moving on other grounds before invoking the privilege and has done so with restraint. (See Gov’t Br., at 3-7.) While the Court has considered Defendants’ initial grounds for dismissal before analyzing the state secrets privilege, the Court believes they are limited and do not entirely warrant dismissal of Plaintiffs’ claims. In contrast, the Court finds that all of Plaintiffs’ claims, aside from their FISA claim, should be dismissed under the Reynolds privilege. For this reason and for the sake of judicial economy, the Court limits its discussion to the state secrets doctrine

162a
B. Independent Evaluation of the Privilege Claim
After a court determines that the privilege has been properly invoked, it then ‘‘ ‘must make an independent determination whether the information is privileged.’ ’’ Jeppesen Dataplan, 614 F.3d at 1080, 1081 (quoting AlHaramain, 507 F.3d at 1202). ‘‘The court must sustain a claim of privilege when it is satisfied, ‘from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose . . . matters which, in the interest of national security, should not be divulged.’ ’’ Id. at 1081 (quoting Reynolds, 345 U.S. at 10, 73 S. Ct. 528). ‘‘The Executive bears the burden of satisfying a reviewing court that the Reynolds reasonable-danger standard is met.’’ El-Masri, 479 F.3d at 305. The government cannot satisfy this burden by the mere conclusory assertion that the standard has been met. El-Masri, 479 F.3d at 312. ‘‘Simply saying ‘military secret,’ ‘national security’ or ‘terrorist threat’ or invoking an ethereal fear that disclosure will threaten our nation is insufficient to support the privilege.’’ Al-Haramain, 507 F.3d at 1203. Rather, the government must provide ‘‘[s]ufficient detail’’ to enable the court to conduct a meaningful examination. Id. In some instances, a formal privilege claim asserted in a declaration may suffice, while in others, the court may conduct an in camera examination of the allegedly privileged information. El-Masri, 479 F.3d at 305. ‘‘The degree to which such a reviewing court should probe depends in part on the importance of the assertedly privileged information to the position of the party seeking it.’’ Id.; see also Reynolds, 345 U.S. at 11, 73 S. Ct. 528
in this Order and the FISA claim in the Court’s concurrently-issued Order.

163a
(‘‘In each case, the showing of necessity which is made will determine how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate.’’) At the same time, the Court must make this determination ‘‘without forcing a disclosure of the very thing the privilege is designed to protect.’’ Reynolds, 345 U.S. at 8, 73 S. Ct. 528. ‘‘If this standard is met, the evidence is absolutely privileged, irrespective of the plaintiffs’ countervailing need for it.’’ Jeppesen Dataplan, 614 F.3d at 1081.
Here, the Government asserts the privilege over three categories of information related to Operation Flex as described in their public and classified filings: (i) subject identification, (ii) reasons for counterterrorism, and (iii) sources and methods. First, the FBI seeks to protect ‘‘[i]nformation that could tend to confirm or deny whether a particular individual was or was not the subject of an FBI counterterrorism investigation, including in Operation Flex.’’ (Holder Decl. ¶ 4; Pub. Giuliano Decl. ¶ 15.) Second, the FBI seeks to protect ‘‘[i]nformation that could tend to reveal the initial reasons (i.e., predicate) for an FBI counterterrorism investigation of a particular person (including in Operation Flex), any information obtained during the course of such an investigation, and the status and results of the investigation. This category includes any information obtained from the U.S. Intelligence Community related to the reasons for an investigation.’’ (Holder Decl. ¶ 4; Pub. Giuliano Decl. ¶ 15.) Third, the FBI seeks to protect ‘‘[i]nformation that could tend to reveal whether particular sources and methods were used in a counterterrorism investigation of a particular subject, including in Operation Flex,’’ and ‘‘previously undisclosed information related to whether court-ordered searches or

164a
surveillance, confidential human sources, and other investigative sources and methods were used in a counterterrorism investigation of a particular person, the reasons such methods were used, the status of the use of such sources and methods, and any results derived from such methods.’’ (Holder Decl. ¶ 4; Pub. Giuliano Decl. ¶ 15.)
Beyond the Government’s descriptions of these categories of information in its public declarations, the Court heavily relies upon the classified declarations and supplemental memorandum to determine whether disclosure of the information described above could reasonably be expected to cause significant harm to national security. In making this determination, the Court assumes the ‘‘ ‘special burden to assure itself that an appropriate balance is struck between protecting national security matters and preserving an open court system.’ ’’ Jeppesen Dataplan, 614 F.3d at 1081 (quoting AlHaramain, 507 F.3d at 1203); see also El-Masri, 479 F.3d at 304 (‘‘This inquiry is a difficult one, for it pits the judiciary’s search for truth against the Executive’s duty to maintain the nation’s security.’’). On the one hand, the Court ‘‘acknowledge[s] the need to defer to the Executive on matters of foreign policy and national security and surely cannot legitimately find [itself ] second guessing the Executive in this arena.’’ Jeppesen Dataplan, 614 F.3d at 1081-82; see also El-Masri, 479 F.3d at 305 (‘‘In assessing the risk that such a disclosure [of state secrets] might pose to national security, a court is obliged to accord the ‘utmost deference’ to the responsibilities of the executive branch.’’) (quoting United States v. Nixon, 418 U.S. 683, 710, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974)). On the other hand, “ ‘the state secrets

165a
doctrine does not represent a surrender of judicial control over access to the courts.’ ’’ Jeppesen Dataplan, 614 F.3d at 1082 (quoting El-Masri, 479 F.3d at 312); see also Reynolds, 345 U.S. at 9-10, 73 S. Ct. 528 (‘‘Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers.’’) Rather, the Court has the obligation ‘‘to ensure that the state secrets privilege is asserted no more frequently and sweepingly than necessary,’’ by critically examining the instances of its invocation, Ellsberg v. Mitchell, 709 F.2d 51, 58 (D.C. Cir. 1983), with ‘‘a very careful, indeed a skeptical, eye, and not to accept at face value the government’s claim or justification of privilege,’’ AlHaramain, 507 F.3d at 1203. See also Jeppesen Dataplan, 614 F.3d at 1082. But the Court cannot delve so deeply that it discloses the very information the privilege is meant to protect. Reynolds, 345 U.S. at 8, 73 S. Ct. 528 (‘‘Too much judicial inquiry into the claim of privilege would force disclosure of the thing the privilege is meant to protect, while a complete abandonment of judicial control would lead to intolerable abuses.’’)
The Court has thoroughly and skeptically examined the Government’s public and classified submissions. In particular, the Court has critically scrutinized the Attorney General’s classified declarations and the classified memorandum—which are comprehensive and detailed—since they were submitted for the Court’s ex parte, in camera review in August and November 2011. The Court is convinced that the subject matter of this action, Operation Flex, involves intelligence that, if disclosed, would significantly compromise national security. The Court is further convinced that litigation of this action would certainly require or, at the very least, greatly risk disclosure of secret information, such that

166a
dismissal at this stage of the proceeding is required. This is because, as described more fully below, the Government will inevitably need the privileged information to defend against Plaintiffs’ core allegation that Defendants conducted an indiscriminate ‘‘dragnet’’ investigation and gathered information on Plaintiffs and Muslims in Southern California based on their religion. (See infra Part IV.C.)
In their Opposition, Plaintiffs argue that the Government’s first category of information is not privileged because everyone who had contact with Monteilh already knows that they were targeted for investigation. (Pls. Opp’n to Gov’t, at 31-32.) However, aside from the general information about Operation Flex and the identity of Monteilh as an informant, the Government has not confirmed or denied the identities of the fewer than 25 individuals who were under investigation. Plaintiffs further argue that because the Government has not explicitly invoked the Totten bar, it has effectively conceded that the very subject matter of this action is not a state secret. (Id. at 23.) But while some of the general facts of Operation Flex are public knowledge, the facts required to litigate the action—e.g., to defend against Plaintiffs’ claims of indiscriminate targeting of Muslims—requires disclosure of information that is classified and privileged. El Masri, 479 F.3d at 308 (‘‘[F]or purposes of the state secrets analysis, the ‘central facts’ and ‘very subject matter’ of an action are those facts that are essential to prosecuting the action or defending against it.’’) Plaintiffs’ position to the contrary implies an overly rigid understanding of the difference between the Totten bar and Reynolds privilege that is inconsistent with the Ninth Circuit’s application

167a
of the state secrets doctrine. As the Jeppesen court indicated, the state secrets analysis under the Totten bar converges with its progeny when, as here, the Government requests dismissal at the pleading stage because defense against plaintiff ’s claims requires privileged evidence or further litigation of the case would present an unacceptable risk of disclosing state secrets. Jeppesen Dataplan, 614 F.3d at 1083. (See infra Part IV.C.)
While the Court cannot describe the specific contents of the classified materials—as this would thwart the very purpose of the privilege claim—the Court can make the following observations. In the context of a counterterrorism investigation, subject identification may include information about persons residing in the United States or abroad, such as Afghanistan, Lebanon, the Palestinian Territories, Yemen, and other regions in the Middle East, whom law enforcement has and has not decided to investigate depending on their nexus to terrorist organizations, such as al Qaeda, the Taliban, Hezbollah, and Hamas. Subjects and their associates may also be investigated because they are suspected of or involved in the recruitment, training, indoctrination, or radicalization of individuals for terrorist activities or fundraising for terrorist organizations. More directly, individuals subjected to counterterrorism investigations may be involved in plotting terrorist attacks. In the nearly eleven years that have passed since September 11, 2001, Islamic extremists have continued to plot and attempt to carry out numerous terrorist attacks both on U.S. soil and abroad against U.S. targets and allies. Such attacks are not abstract events born out of fear, but are real and insidious. The Daily Beast reported that as of September 8, 2011, ‘‘there have been at least 45 jihadist terrorist-attack plots against Americans

168a
since 9/11—each of them thwarted by a combination of intelligence work, policing and citizen participation.’’ John Avlon, Forty-Five Foiled Terror Plots Since 9/11, Daily Beast (Sept. 8, 2011), http://www.thedailybeast. com/articles/2011/09/08/9-11-anniversary-45-terror-plotsfoiled-in-last-10-years.html. The article notes that ‘‘these are just the plotted attacks that we know about through public documentation’’ and that ‘‘the real number of credible plots is no doubt much higher.’’ Id. Examples of recent, known terrorist attempts include the September 2009 scheme by Najibullah Zazi, who was arrested for plotting to attack the New York City subway system, as well as the December 2009 failed attempt by Umar Farouk Abdulmutallab to bomb Northwest Flight 253 to Chicago and the May 2010 failed attempt of Faisal Shazad to detonate a car bomb in Times Square. (See Pub. Giuliano Decl. ¶¶ 8-9.) Subjects and their associates may be further investigated because they have ties to homegrown violent extremists who do not necessarily receive guidance from terrorist groups overseas but may be inspired by the global jihadist movement to commit violent acts inside the United States. Such was the case for a group of armed men who were arrested before they could execute their plot to kill people inside a military recruiting center in Santa Monica, California, on September 11, 2005, and then later open fire on families outside of temple during Yom Kippur in West Los Angeles. (See id. ¶ 10.)
Disclosure of subjects under investigation would undoubtedly jeopardize national security. This is because persons under investigation would be alerted to the FBI’s interest in them and cause them to flee, destroy evidence, or alter their conduct so as to avoid de-

169a
tection, which would seriously impede law enforcement’s and intelligence officers’ ability to determine their location or gain further intelligence on their activities. (Holder Decl. ¶ 6; Pub. Giuliano Decl. ¶ 23.) Disclosure of those not under investigation by the FBI is, likewise, dangerous because individuals who desire to commit terrorist acts may then be motivated to do so upon discovering that they are not being monitored. Information about who is being investigated while the status of others are unconfirmed may be manipulated by individuals and terrorist groups to discover whether they or any of their members are being investigated. (Holder Decl. ¶ 7; Pub. Giuliano Decl. ¶ 24.)
The second and third categories of information necessarily overlap with the first. The reasons and results of counterterrorism investigations may include the identities of human sources, such as confidential informants or undercover agents and officers (other than Monteilh); existent or suspected links between individuals and terrorist organizations; the results of surveillance efforts; and information shared among law enforcement and other government agencies. This category of evidence will also likely involve information about the status of the investigation—whether a particular investigation is open or closed—or the substantive details of the investigations themselves. With regard to the third category, this is likely to include information similar to the first and second categories, such as what, if any, confidential human sources besides Monteilh were used; whether court-authorized searches or surveillance occurred, such as wire taps and monitoring of electronic communication; whether the investigations involved undercover activity or physical surveillance; and whether

170a
interviews with suspects and their associates were conducted. The disclosure of the reasons and results of counterterrorism investigations would unquestionably compromise national security because it would reveal to those involved in plotting terrorist activities what the FBI knows and does not know about their plans and thereby enable them to evade detection. (Holder Decl. ¶ 9; Pub. Giuliano Decl. ¶ 29.) The disclosure of the methods and sources would endanger national security because it could reveal the identities of particular subjects and the steps taken by the FBI in counterterrorism matters, thereby effectively disclosing a road map to adversaries on how the FBI detects and prevents terrorist activities. (Holder Decl. ¶ 10; Pub. Giuliano Decl. ¶ 31.)
Aside from these explanations, the Court cannot and need not give any further details with regard to the contents of the classified materials. See Kasza, 133 F.3d at 1169 (concluding that in camera review of classified declarations ‘‘was an appropriate means to resolve the applicability and scope of the state secrets privilege,’’ and ‘‘[n]o further disclosure or explanation is required’’). The Court, however, is thoroughly convinced that the Government has described, in sufficient detail, the nature of the privileged information and reasons why its disclosure would compromise national security in its classified filings. Plaintiffs no doubt are frustrated that the Court is precluded from giving any more specifics. But ‘‘[a]n inherent feature of the state secrets privilege . . . is that the party against whom it is asserted will often not be privy to the information that the Executive seeks to protect.’’ El-Masri, 479 F.3d at 312. While the Government must persuade the Court

171a
with ‘‘[s]ufficient detail’’ that their assertion of the privilege is warranted, Al-Haramain, 507 F.3d at 1203, it has no obligation to divulge any details of the privileged matter to Plaintiffs. (See Pls. Opp’n to Gov’t, at 31 n.17 (criticizing the Government’s public declarations for not describing the alleged privileged information with sufficient specificity). Nevertheless, Plaintiffs’ unfamiliarity with the classified materials’ explanation for the privilege does not imply that ‘‘no such explanation was required,’’ or that the Court’s ‘‘ruling was simply an unthinking ratification of a conclusory demand by the executive branch.’’ El-Masri, 479 F.3d at 312.
C. Consequences of the Privilege Claim
If the court sustains a claim of privilege, then ‘‘ ‘the ultimate question to be resolved is how the matter should proceed in light of the successful privilege claim.’ ’’ Jeppesen Dataplan, 614 F.3d at 1080, 1082 (quoting AlHaramain, 507 F.3d at 1202). Ordinarily, a successful claim of the privilege may simply entail excluding or walling off the secret evidence. Id. at 1082. But in some instances, as here, application of the privilege may require dismissal of the case. Id. at 1083. Dismissal is appropriate in cases where ‘‘the court may be able to determine with certainty from the nature of the allegations and the other government’s declarations in support of its claim of secrecy that litigation must be limited or cut off in order to protect state secrets, even before any discovery or evidentiary requests have been made.’’ Id. at 1081. There are three circumstances when the Reynolds privilege warrants terminating a case entirely, rather than removing the evidence at issue: (1) ‘‘if the plaintiff cannot prove the prima facie elements of her claim with nonprivileged evidence,’’ (2) ‘‘if the

172a
privilege deprives the defendant of information that would otherwise give the defendant a valid defense to the claim, then the court may grant summary judgment to the defendant,’’ and (3) ‘‘even if the claims and defenses might theoretically be established without relying on privileged evidence, it may be impossible to proceed with the litigation because—privileged evidence being inseparable from nonprivileged information that will be necessary to the claims or defenses—litigating the case to a judgment on the merits would present an unacceptable risk of disclosing state secrets.’’ Id. (citations and quotes omitted). The second and third circumstances are applicable here.
1. Privileged Information Needed for Defense
Dismissal of all of Plaintiffs’ claims, aside from their FISA claim, is required because the privileged information gives Defendants a valid defense. Jeppesen Dataplan, 614 F.3d at 1083. This analysis of the Reynolds privilege necessarily coincides with the Totten bar, which permits dismissal of an action at the outset if the very subject matter of the action is a state secret. Reynolds, 345 U.S. at 11 n.26, 73 S. Ct. 528. The key test is not whether the general subject matter of Operation Flex is a state secret, but whether this case can be ‘‘litigated without threatening the disclosure of such state secrets.’’ El-Masri, 479 F.3d at 308. ‘‘Subject matter’’ of an action means ‘‘those facts that are essential to prosecuting the action or defending against it.’’ Id. (emphasis added); see also id. at 309-11 (affirming dismissal of action under the Reynolds privilege because defendants needed privileged information related to CIA intelligence operations to defend itself against plaintiff ’s claims); Kasza, 133 F.3d at 1166 (stating that

173a
dismissal is proper ‘‘if the privilege deprives the defendant of information that would otherwise give the defendant a valid defense to the claim’’ (citation and quotes omitted)).
Here, Plaintiffs’ claims are predicated on their core allegation that Defendants engaged in an indiscriminate investigation, surveillance, and collection of information of Plaintiffs and the putative class because they are Muslim. (FAC ¶¶ 1-3, 86, 167.) Based on this allegation, Plaintiffs assert that Defendants’ scheme discriminated against Plaintiffs because of their religion in violation of the Establishment Clause (claims 1, 2); substantially burdened the exercise of their religion without a legitimate government interest in violation of the Free Exercise Clause (claims 3, 4) and the RFRA (claim 5); and violates the Equal Protection Clause (claims 6, 7). Plaintiffs also assert that Defendants’ alleged scheme violates the Privacy Act, the Fourth Amendment prohibition against unreasonable searches, and FISA (claims 8, 9, 10). Finally, Plaintiffs assert that the United States is liable to Plaintiffs for the Agent Defendants’ invasion of their privacy, violation of Cal. Civ. Code § 52.1, and for intentional infliction of emotional distress under California law pursuant to the FTCA (claim 11).
Plaintiffs contend that they do not need privileged information to prove their discrimination claims against Defendants. (Pls. Opp’n to Gov’t, at 37.) The Court does not speculate on what Plaintiffs already have in their possession and whether that is enough to prove their claims at this stage of the proceeding. But even assuming that Plaintiffs do not require privileged information to establish their claims, the Court is persuaded that privileged information provides essential evidence

174a
for Defendants’ full and effective defense against Plaintiffs’ claims—namely, showing that Defendants’ purported ‘‘dragnet’’ investigations were not indiscriminate schemes to target Muslims, but were properly predicated and focused. Doing so would require Defendants to summon privileged evidence related to Operation Flex, including the subjects who may or may not have been under investigation, the reasons and results of those investigations, and their methods and sources. Additionally, even if Plaintiffs can successfully show that Defendants’ actions substantially burdened their exercise of religion with nonprivileged information, defense against Plaintiffs’ First Amendment claims entails analysis of whether the Government had a ‘‘compelling state interest’’ and its actions were ‘‘narrowly tailored’’ to achieve that interest. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993); see also Navajo Nation v. United States Forest Serv., 535 F.3d 1058, 1068 (9th Cir. 2008) (‘‘[S]hould the plaintiff establish a substantial burden on his exercise of religion [for a RFRA claim], the burden of persuasion shifts to the government to prove that the challenged government action is in furtherance of a ‘compelling governmental interest’ and is implemented by ‘the least restrictive means.’ ’’). These are fact-intensive questions that necessitate a detailed inquiry into the nature, scope, and reasons for the investigations under Operation Flex. Moreover, with regard to Plaintiffs’ FTCA claim, the United States may have a valid defense under the discretionary function exception, Sabow v. United States, 93 F.3d 1445, 1451 (9th Cir. 1996), which requires the Court to determine ‘‘whether the challenged acts . . . are of the nature and quality that Congress intended to shield from tort

175a
liability.’’ United States v. Varig Airlines, 467 U.S. 797, 813, 104 S. Ct. 2755, 81 L. Ed. 2d 660 (1984); see also Dichter-Mad Family Partners, LLP v. United States, 707 F. Supp. 2d 1016, 1018-19 (C.D. Cal. 2010). To establish that this defense applies to the Government’s counterterrorism investigations that purportedly violated Plaintiffs’ constitutional rights, the Government must marshal facts that fall within the three privileged categories of information related to Operation Flex.11
2. Inseparable from Privileged Information
Dismissal of Plaintiffs’ claims is also required because, even if the claim or defense may be theoretically established without relying on privileged information, the Court is convinced that the privileged and nonprivileged information are inextricably intertwined, such
11 Plaintiffs further argue that the Government misunderstands the nature of their religious discrimination claim, which they assert does not require proof that religion is the ‘‘sole’’ reason for their having been targeted for surveillance, but rather that religion was ‘‘a’’ reason that they were targeted. Plaintiffs argue that their essential claim is that religion should be treated like race for the purposes of anti-discrimination law in that its use should always be justified by strict scrutiny. (Pls. Opp’n to Gov’t, at 21.) As a preliminary matter, Plaintiffs’ characterization of their own allegation contradicts the express language in their FAC. (See FAC ¶ 86 (alleging that the FBI Agents’ instructions to Monteilh ensured that ‘‘Plaintiffs and numerous other people were surveilled solely due to their religion’’) (emphasis added)).) Regardless of the semantics used, however, for the purpose of the state secrets analysis, there is little difference between alleging that Plaintiffs were targeted because of their religion or solely based on their religion. Defense against the claim that Defendants targeted Plaintiffs because of their religion requires the Government to draw on privileged information to show that the investigations were proper and narrowly targeted for a legitimate purpose.

176a
that litigating the instant case to judgment on the merits would present an unacceptable risk of disclosing state secrets. Jeppesen Dataplan, 614 F.3d at 1083. ‘‘ ‘[W]henever possible, sensitive information must be disentangled from nonsensitive information to allow for the release of the latter.’ ’’ Kasza, 133 F.3d at 1166 (quoting Ellsberg, 709 F.2d at 57). But ‘‘when, as a practical matter, secret and nonsecret information cannot be separated,’’ the Court may ‘‘restrict the parties’ access not only to evidence which itself risks the disclosure of a state secret, but also those pieces of evidence or areas of questioning which press so closely upon highly sensitive material that they create a high risk of inadvertent or indirect disclosures.’’ Jeppesen Dataplan, 614 F.3d at 1082 (citation and quotes omitted); see also Kasza, 133 F.3d at 1166 (‘‘[I]f seemingly innocuous information is part of a classified mosaic, the state secrets privilege may be invoked to bar its disclosure and the court cannot order the government to disentangle this information from other classified information.’’); id. at 116970 (affirming dismissal under the state secrets privilege of action involving allegations that the United States Air Force had unlawfully handled hazardous waste in classified operating locations because litigation of plaintiff ’s claims required and risked, under the ‘‘classified mosaic’’ theory, disclosure of privileged information).
Here, as in Jeppesen Dataplan and Kasza, the subject matter of this case, Operation Flex, involves both privileged and nonprivileged information, which cannot be separated as a practical matter. Indeed, Operation Flex comprises only a small part of the classified mosaic in the FBI’s larger counterterrorism investigations, which predate and go beyond Monteilh’s source work. The effort to separate privileged from nonprivileged

177a
information—even with the protective procedures available to the Court—presents an unjustifiable risk of disclosing state secrets. As the Ninth Circuit observed, ‘‘[a]dversarial litigation, including pretrial discovery of documents and witnesses and the presentation of documents and testimony at trial, is inherently complex and unpredictable.’’ Jeppesen Dataplan, 614 F.3d at 1089. ‘‘Although district courts are well equipped to wall off isolated secrets from disclosure, the challenge is exponentially greater in exceptional cases like this one, where the relevant secrets are difficult or impossible to isolate and even efforts to define a boundary between privileged and unprivileged evidence would risk disclosure by implication.’’ Id. In such rare circumstances, as here, the risk of disclosure that further litigation would engender cannot be averted through protective orders or restrictions on testimony. Id. This is true even as to Plaintiffs’ Fourth Amendment claim because it is impossible to excise the facts directly related to this claim from the factual context of Operation Flex as a whole, and that context forms an important background for a finder of fact to consider in her analysis. While this case is only at the pleading stage and Plaintiffs have not yet propounded any discovery requests, (Arulanantham Decl. ¶ 2), Defendants need not wait before discovery or evidentiary disputes are at issue to assert the privilege for dismissal. Jeppesen Dataplan, 614 F.3d at 1081 (‘‘Courts are not required to play with fire and chance further disclosure—inadvertent, mistaken, or even intentional—that would defeat the very purpose for which the privilege exists.’’) (quoting Sterling v. Tenet, 416 F.3d 338, 344 (4th Cir. 2005)). Accordingly, because further litigation of this action would create ‘‘an unjustifiable risk of revealing state secrets’’ related to

178a
the FBI’s counterterrorism investigations, dismissal of Plaintiffs’ claims is warranted. Id. at 614 F.3d at 1088.
V. CONCLUSION
The state secrets privilege strives to achieve a difficult compromise between the principles of national security and constitutional freedoms. The state secrets privilege can only be invoked and applied with restraint, in narrow circumstances, and infused with judicial skepticism. Yet, when properly invoked, it is absolute—the interest of protecting state secrets cannot give way to any other need or interest. Navigating through the narrow straits of the state secrets privilege has not been an easy or enviable task for the Court. In the context of the Executive’s counterterrorism efforts engendered by 9/11, the Court has been confronted with the difficult task of balancing its obligation to defer to the Executive in matters of national security with its duty to promote open judicial inquiry. Too much deference would shortcircuit constitutional liberties while too much judicial inquiry would risk disclosure of information that would jeopardize national security. In struggling with this conflict, the Court is reminded of the classic dilemma of Odysseus, who faced the challenge of navigating his ship through a dangerous passage, flanked by a voracious six-headed monster, on the one side, and a deadly whirlpool, on the other. Odysseus opted to pass by the monster and risk a few of his individual sailors, rather than hazard the loss of his entire ship to the sucking whirlpool. Similarly, the proper application of the state secrets privilege may unfortunately mean the sacrifice of individual liberties for the sake of national security. El-Masri, 479 F.3d at 313 (‘‘[A] plaintiff suffers this reversal not through any fault of his own, but because his

179a
personal interest in pursuing his civil claim is subordinated to the collective interest in national security.’’); Sterling, 416 F.3d at 348 (‘‘[T]here can be no doubt that, in limited circumstances . . . the fundamental principle of access to court must bow to the fact that a nation without sound intelligence is a nation at risk.’’); Fitzgerald v. Penthouse Int’l, Ltd., 776 F.2d 1236, 1238 n.3 (4th Cir. 1985) (‘‘When the state secrets privilege is validly asserted, the result is unfairness to individual litigants —through the loss of important evidence or dismissal of a case—in order to protect a greater public value.’’)
The Court recognizes the weight of its conclusion that Plaintiffs must be denied a judicial forum for their claims. The Court does not reach its decision today lightly, but does so only reluctantly, after months of careful review of the parties’ submissions and arguments, particularly the Government’s in camera materials upon which the Court heavily relies. Plaintiffs raise the specter of Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944), and protest that dismissing their claims based upon the state secrets privilege would permit a ‘‘remarkable assertion of power’’ by the Executive, and that any practice, no matter how abusive, may be immunized from legal challenge by being labeled as ‘‘counterterrorism’’ and ‘‘state secrets.’’ (Pls. Opp’n to Gov’t, at 20, 41-42.) But such a claim assumes that courts simply rubber stamp the Executive’s assertion of the state secrets privilege. That is not the case here. The Court has engaged in rigorous judicial scrutiny of the Government’s assertion of privilege and thoroughly reviewed the public and classified filings with a skeptical eye. The Court firmly believes that after careful examination of all the parties’ submissions, the present action falls squarely within the narrow class

180a
of cases that require dismissal of claims at the outset of the proceeding on state secret grounds. Accordingly, all of Plaintiffs’ causes of action against Defendants, aside from their FISA claim, are DISMISSED.

181a
APPENDIX C
UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA
SOUTHERN DIVISION
Case No. 8:11-cv-00301-CJC (VBKx) YASSIR FAZAGA, ALI UDDIN MALIK, YASSER
ABDELRAHIM, PLAINTIFFS v.
FEDERAL BUREAU OF INVESTIGATION, ET AL.,
DEFENDANTS
Aug. 14, 2012
ORDER GRANTING IN PART DEFENDANTS’ MOTIONS TO DISMISS PLAINTIFFS’ FISA CLAIM
CORMAC J. CARNEY, District Judge. I. INTRODUCTION & BACKGROUND
On February 22, 2011, Plaintiffs, three Muslim residents in Southern California, filed a putative class action suit against the Federal Bureau of Investigation (‘‘FBI’’), the United States of America, and seven FBI officers and agents (collectively, ‘‘Defendants’’) for claims arising from a group of counterterrorism investigations, known as ‘‘Operation Flex,’’ conducted in Plaintiffs’ com-

182a
munity with the help of a civilian informant, Craig Monteilh, from 2006 to 2007.1 Plaintiffs allege that, as part of Operation Flex, the FBI employed Monteilh to gather information in various Islamic community centers in Orange County by presenting himself as a Muslim convert. Plaintiffs allege that Monteilh was paid by the FBI to collect information on Muslims under an assumed identity and ‘‘infiltrate[ ] several mainstream mosques in Southern California.’’ (First Amended Complaint (‘‘FAC’’) ¶ 1.) They further allege that the FBI conducted a ‘‘dragnet investigation’’ using Monteilh to ‘‘indiscriminately collect personal information on hundreds and perhaps thousands of innocent Muslim Americans in Southern California’’ over a fourteen-month period. (Id. ¶ 2.) Through these actions, Plaintiffs assert that the FBI gathered hundreds of hours of video and thousands of hours of audio recordings from ‘‘the inside of mosques, homes, businesses, and associations of hundreds of Muslims,’’ including at times where Monteilh was not present with the recording device. (Id.) Plaintiffs also assert that Defendants collected hundreds of phone numbers and thousands of email addresses. (Id.) Based on these factual allegations, Plaintiffs as-
1 Plaintiffs are Yassir Fazaga, Ali Uddin Malik, and Yasser AbdelRahim. The FBI officers are Robert Mueller, Director of the FBI, and Steven M. Martinez, Assistant Director in Charge of the FBI Los Angeles Division, sued in their official capacities. FBI agents are J. Stephen Tidwell, Barbara Walls, Pat Rose, Kevin Armstrong, and Paul Allen, sued in their individual capacities. The Court will hereinafter refer to the FBI, the United States, Director Mueller, and Assistant Director Martinez as the ‘‘Government.’’ The Court will hereinafter refer to Agents Tidwell, Walls, Rose, Armstrong, and Allen as the ‘‘Agent Defendants.’’

183a
sert claims for violations of the First Amendment’s Establishment and Free Exercise Clauses, the Religious Freedom Restoration Act, the Fifth Amendment’s Equal Protection Clause, the Privacy Act, the Fourth Amendment, the Foreign Intelligence Surveillance Act (‘‘FISA’’), 50 U.S.C. § 1810, and the Federal Tort Claims Act.
The FBI denies any wrongdoing, asserting that it did not engage in unconstitutional and unlawful practices. Instead, the FBI asserts that it undertook reasonablymeasured investigatory actions in response to credible evidence of potential terrorist activity. Defendants now move to dismiss Plaintiffs’ claims. This Order addresses Defendants’ motions as to Plaintiffs’ FISA claim only.2 As to that claim, Defendants’ motions are GRANTED with respect to the Government, but DENIED as to the Agent Defendants.
II. ANALYSIS
A. FISA
Plaintiffs bring their FISA claim pursuant to Section 1810 of Title 50 of the United States Code. Section 1810 provides:
An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 1801(a) or (b)(1)(A) of this title, respectively, who has been subjected to an electronic surveillance or about whom information obtained by electronic surveil-
2 Defendants’ motions to dismiss Plaintiffs’ other claims based on the state secrets privilege are addressed in the Court’s separate, concurrently—issued Order. The factual background and procedural history of this case are discussed in greater detail in that Order.

184a
lance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation and shall be entitled to recover—
(a) actual damages, but not less than liquidated damages of $1,000 or $100 per day for each day of violation, whichever is greater;
(b) punitive damages; and
(c) reasonable attorney’s fees and other investigation and litigation costs reasonably incurred.
50 U.S.C. § 1810. An aggrieved person means ‘‘a person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance.’’ Id. § 1801(k). A person is defined as ‘‘any individual, including any officer or employee of the Federal Government, or any group, entity, association, corporation, or foreign power.’’ Id. § 1801(m). FISA defines electronic surveillance as:
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if

185a
such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of Title 18;
(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or
(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.
Id. § 1801(f ). Section 1809 criminalizes two types of conduct:
A person is guilty of an offense if he intentionally—
(1) engages in electronic surveillance under color of law except as authorized by this chapter, chapter 119, 121, or 206 of Title 18 or any express statutory authorization that is an additional exclusive means for conducting electronic surveillance under section 1812 of this title; or
(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by this

186a
chapter, chapter 119, 121, or 206 of Title 18, or any express statutory authorization that is an additional exclusive means for conducting electronic surveillance under section 1812 of this title.
Id. § 1809(a). A person may assert, as a defense to prosecution under this section, that he ‘‘was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction.’’ Id. § 1809(b).
B. Sovereign Immunity
The Government moves to dismiss Plaintiffs’ FISA claim pursuant to Federal Rule of Civil Procedure Rule 12(b)(1) on the ground that the claim is barred by sovereign immunity. ‘‘The United States, including its agencies and employees, can be sued only to the extent that it has expressly waived its sovereign immunity.’’ Kaiser v. Blue Cross of Cal., 347 F.3d 1107, 1117 (9th Cir. 2003) (citing United States v. Testan, 424 U.S. 392, 399, 96 S. Ct. 948, 47 L. Ed. 2d 114 (1976)). ‘‘[A]ny lawsuit against an agency of the United States or against an officer of the United States in his or her official capacity is considered an action against the United States.’’ Balser v. Dep’t of Justice, Office of the U.S. Tr., 327 F.3d 903, 907 (9th Cir. 2003) (citing Sierra Club v. Whitman, 268 F.3d 898, 901 (9th Cir. 2001)). ‘‘[S]uits against officials of the United States . . . in their official capacity are barred if there has been no waiver’’ of sovereign immunity. Sierra Club, 268 F.3d at 901. Absent a waiver of sovereign immunity, courts have no subject matter jurisdiction over cases against the government. United States v. Mitchell, 463 U.S. 206, 212, 103 S. Ct.

187a
2961, 77 L. Ed. 2d 580 (1983). ‘‘A waiver of the Federal Government’s sovereign immunity must be unequivocally expressed in statutory text . . . and will not be implied.’’ Lane v. Pena, 518 U.S. 187, 192, 116 S. Ct. 2092, 135 L. Ed. 2d 486 (1996). Waiver of sovereign immunity is to be strictly construed in favor of the sovereign. Id.; United States v. Nordic Village, Inc., 503 U.S. 30, 33-34, 112 S. Ct. 1011, 117 L. Ed. 2d 181 (1992).
On August 7, 2012, the Ninth Circuit held that Congress ‘‘deliberately did not waive [sovereign] immunity with respect to § 1810’’ and thus a plaintiff may not bring a suit for damages against the government under that provision. Al-Haramain Islamic Found., Inc. v. Obama, 690 F.3d 1089, 1099-1100 (9th Cir. 2012). The Ninth Circuit reversed the district court’s decision that Congress implicitly waived sovereign immunity for Section 1810. Id. at 1093-1100. The Ninth Circuit held that the district court’s finding was erroneous for three reasons.
First, the Ninth Circuit concluded that the district court erred in finding an implicit waiver because the Supreme Court has held that sovereign immunity cannot be waived by implication. Id. at 1093-94 (quoting United States v. Mitchell, 445 U.S. 535, 538, 100 S. Ct. 1349, 63 L. Ed. 2d 607 (1980)). The waiver must be ‘‘ ‘unequivocally expressed.’ ’’ Id. (quoting Mitchell, 445 U.S. at 538, 100 S. Ct. 1349).
Second, the Ninth Circuit found that a conclusion that Congress intended to implicitly waive sovereign immunity was unwarranted given that Congress had expressly waived sovereign immunity, and permitted civil actions for damages against the United States, for other sections of FISA. Id. at 1094-98 (citing 18 U.S.C. § 2712).

188a
Section 2712 of Title 18 of the United States Code, enacted as part of the Patriot Act, permits actions against the United States to recover money damages for violations of Sections 1806(a), 1825(a), and 1845(a) of FISA. A person may, therefore, bring a suit against the government if the government (1) uses or discloses information obtained from electronic surveillance conducted pursuant to the FISA subchapter on electronic surveillance without consent and without following FISA’s minimization procedures or without a lawful purpose, 50 U.S.C. § 1806(a); (2) uses or discloses information from a physical search conducted pursuant to the FISA subchapter on physical searches without consent and without following the minimization procedures or without a lawful purpose, id. § 1825(a); or (3) uses or discloses information obtained from a pen register or trap and trace device installed pursuant to the FISA subchapter on such devices without following the requirements of Section 1845, id. § 1845(a). Congress clearly knew how to waive sovereign immunity for certain violations of FISA. It decided, in its wisdom, not to do so for violations of Section 1810.
Third, the Ninth Circuit explained that ‘‘the relationship between [Section] 1809 and [Section] 1810’’ further demonstrates that Congress did not intend to permit an action against the government for violations of Section 1810. Specifically, the Ninth Circuit explained that because of this relationship, to impose official capacity liability under Section 1810, it ‘‘must also suppose that a criminal prosecution may be maintained against an office, rather than an individual, under [Section] 1809.’’ Id. at 1098. The Ninth Circuit found that imposing such ‘‘unprecedented’’ official capacity liability for criminal violations, in essence ‘‘imposing criminal penalties

189a
against an office for the actions of the officeholder,’’ would be “ ‘patently absurd.’ ” Id. at 1099 (citing United States v. Singleton, 165 F.3d 1297, 1299-1300 (10th Cir. 1999)).’ ”
The Ninth Circuit’s decision in Al-Haramain is dispositive here. Sovereign immunity is not waived for violations of Section 1810. Consequently, Plaintiffs’ Section 1810 claim against the Government is DISMISSED WITH PREJUDICE.
C. Qualified Immunity
The Agent Defendants move under Federal Rule of Civil Procedure 12(b)(6) for dismissal of Plaintiffs’ FISA claim arguing that they are entitled to qualified immunity. A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. The issue on a motion to dismiss for failure to state a claim is not whether the claimant will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims asserted. Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997). When evaluating a Rule 12(b)(6) motion, the district court must accept all material allegations in the complaint as true and construe them in the light most favorable to the nonmoving party. Moyo v. Gomez, 32 F.3d 1382, 1384 (9th Cir. 1994). Rule 12(b)(6) is read in conjunction with Rule 8(a), which requires only a short and plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). Dismissal of a complaint for failure to state a claim is not proper where a plaintiff has alleged ‘‘enough facts to state a claim to relief that is plausible on its face.’’ Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). In keeping with this liberal pleading standard,

190a
the district court should grant the plaintiff leave to amend if the complaint can possibly be cured by additional factual allegations. Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995).
‘‘Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.’’ Ashcroft v. al-Kidd, — U.S. —, 131 S. Ct. 2074, 2080, 179 L. Ed. 2d 1149 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)). The district court may address the two prongs in any order. Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009).
The doctrine of qualified immunity was established to protect government officials ‘‘from liability for civil damages insofar as their conduct does not violate any clearly established statutory or constitutional rights of which a reasonable person would have known.’’ Harlow, 457 U.S. at 818, 102 S. Ct. 2727. A right is clearly established if ‘‘it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’’ Saucier v. Katz, 533 U.S. 194, 202, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001), overruled on other grounds by Pearson, 555 U.S. at 236-37, 129 S. Ct. 808. Law may be clearly established ‘‘notwithstanding the absence of direct precedent. . . . Otherwise, officers would escape responsibility for the most egregious forms of conduct simply because there was no case on all fours prohibiting that particular manifestation of unconstitutional [or unlawful] conduct.’’ Deorle v. Rutherford, 272 F.3d 1272, 1285-86 (9th Cir. 2001). ‘‘Rather,

191a
what is required is that government officials have ‘fair and clear warning’ that their conduct is unlawful.’’ Devereaux v. Abbey, 263 F.3d 1070, 1075 (9th Cir. 2001) (quoting United States v. Lanier, 520 U.S. 259, 271, 117 S. Ct. 1219, 137 L. Ed. 2d 432 (1997)).
The Agent Defendants are not entitled to dismissal of Plaintiffs’ FISA claim based on qualified immunity. Plaintiffs have pleaded sufficient facts to demonstrate that, taken in the light most favorable to them, they are ‘‘aggrieved persons’’ and that the Agent Defendants violated a clearly established statutory right created by FISA. FISA constitutes clearly established law governing electronic surveillance, including that of the kind engaged in by the Agent Defendants. Sections 1809 and 1810 clearly prohibit ‘‘the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes,’’ 50 U.S.C. § 1801(f ), ‘‘under color of law except as authorized by [FISA], chapter 119, 121, or 206 of Title 18 or any express statutory authorization that is an additional exclusive means for conducting electronic surveillance under section 1812 [of FISA].’’ 50 U.S.C. § 1809(a)(1).
The Agent Defendants argue that they are entitled to qualified immunity because it was not clearly established that Plaintiffs were ‘‘aggrieved persons.’’ Specifically, the Agent Defendants argue that Plaintiffs did not have a clearly established reasonable expectation of privacy with respect to the situations in which they were electronically surveilled. The Court disagrees. FISA’s

192a
‘‘aggrieved person’’ status is coextensive with standing under the Fourth Amendment for claims involving electronic surveillance. See ACLU v. Nat’l Sec. Agency, 493 F.3d 644, 658 n.16 (6th Cir. 2007) (citing H.R. Rep. No. 95-1283, at 66 (1978)). Thus, the law regarding the reasonable expectation of privacy in the Fourth Amendment context governs here and is clearly established. A person has a reasonable expectation of privacy where he ‘‘has shown that ‘he seeks to preserve [something] as private’ ” and his ‘‘subjective expectation of privacy is ‘one that society is prepared to recognize as ‘reasonable.’ ” Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979) (citing Katz v. United States, 389 U.S. 347, 351, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)). Notably, ‘‘[p]rivacy does not require solitude,’’ United States v. Taketa, 923 F.2d 665, 673 (9th Cir. 1991), and even open areas may be private places so long as they are not ‘‘so open to [others] or the public that no expectation of privacy is reasonable,’’ O’Connor v. Ortega, 480 U.S. 709, 718, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (1987).
As noted by Plaintiffs in their opposition:
The complaint sets forth detailed allegations that Defendants planted electronic listening devices in one Plaintiff ’s home and another’s office, that their informant left recording devices to capture intimate religious discussion at the mosque, that the informant routinely took video in mosques and in private homes, and that the informant acted pursuant to broad instructions to gather as much information on Muslims as possible.
(Pls. Combined Opp’n, at 64; see also FAC ¶¶ 95, 209, 127, 137, 192, 193, 202, 211.) The FAC alleges that this

193a
surveillance often took place outside the presence of the informant and was all conducted without a warrant. (FAC ¶¶ 86-137.) A reasonable officer knows that there is a reasonable expectation of privacy in one’s home, office, and in certain discrete areas of a mosque as described in the FAC, (id.). See Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001) (finding a reasonable expectation of privacy exists in one’s home); O’Connor v. Ortega, 480 U.S. 709, 107 S. Ct. 1492 (finding that a reasonable expectation of privacy can exist in a person’s work place and office); Mockaitis v. Harcleroad, 104 F.3d 1522 (9th Cir. 1997) (finding a reasonable expectation of privacy arising out of religious customs of confidentiality such as confession), overruled on other grounds by United States v. Antoine, 318 F.3d 919 (9th Cir. 2003).3
Agent Rose argues that she is entitled to qualified immunity because Plaintiffs have failed to plausibly allege that she violated FISA based on Ashcroft v. Iqbal. Again, the Court disagrees. In Iqbal, the Supreme Court held that a supervisor may not be held liable for a constitutional violation on the basis of respondeat superior or vicarious liability, but instead, a plaintiff must
3 Agent Defendants also argue that they are entitled to qualified immunity because it was not clearly established that they could be liable under Section 1810 in their individual capacity, based upon the Northern District’s ruling that Section 1810 imposed only official capacity liability that was reversed by Al-Haramain. The Court disagrees. Regardless of the nature of the remedy permitted by Section 1810, both that section and Section 1809 clearly establish that the conduct allegedly engaged in by the individual defendants was unlawful. The qualified immunity analysis focuses on the legality of the conduct, not the remedy available to a plaintiff or the procedure for seeking that remedy.

194a
allege sufficient facts to plausibly allege liability based upon the supervisor’s individual conduct. Ashcroft v. Iqbal, 556 U.S. 662, 675-76, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). Contrary to Agent Rose’s assertion, Plaintiffs do allege intentional and wrongful conduct on her part. The FAC alleges:
Upon information and belief, Defendant Pat Rose was, at all times relevant to this action, employed by the FBI and acting in the scope of her employment as a Special Agent. Upon information and belief, Agent Rose was assigned to the FBI’s Santa Ana branch office, where she supervised the FBI’s Orange County national security investigations and was one of the direct supervisors of Agents Allen and Armstrong. Upon information and belief, Defendant Rose was regularly apprised of the information Agents Armstrong and Allen collected through Monteilh; directed the action of the FBI agents on various occasions based on that information; and actively monitored, directed, and authorized the actions of Agents Armstrong and Allen and other agents at all times relevant in this action, for the purpose of surveilling Plaintiffs and other putative class members because they were Muslim. Agent Rose also sought additional authorization to expand the scope of the surveillance program described [in the FAC], in an effort to create a Muslim gym that the FBI would use to gather yet more information about the class.
(FAC ¶ 22.) The FAC further alleges that all of the Agent Defendants, including Agent Rose, ‘‘maintained extremely close oversight and supervision of Monteilh’’ and ‘‘because they made extensive use of the results of his surveillance, they knew in great detail the nature

195a
and scope of the operation, including the methods of surveillance Monteilh used and the criteria used to decide his targets, and continually authorized their ongoing use.’’ (Id. ¶ 138.) These allegations amount to intentional, individual conduct on the part of Agent Rose that, taken in the light most favorable to Plaintiffs, demonstrates a violation of Section 1810 that satisfies the pleading requirements of Iqbal.
Finally, Agents Tidwell and Walls assert that Plaintiffs’ FISA claim should be dismissed because it fails to allege that they engaged in the alleged surveillance activity with the intent to violate the law. Dismissal on this basis is unsupported by the plain language of FISA or judicial precedent interpreting Section 1809. Section 1809 imposes liability for those who ‘‘intentionally engage in electronic surveillance under color of law except as authorized.’’ 50 U.S.C. § 1809. The statute requires that Agents Tidwell and Walls intended to conduct unauthorized electronic surveillance. The FAC makes clear that the Agents did intentionally engage in such surveillance without authorization. More is not required.4
III. CONCLUSION
For the foregoing reasons, with respect to Plaintiffs’ FISA Section 1810 claim, the Government’s motion to dismiss is GRANTED and the Agent Defendants’ motions to dismiss are DENIED.
4 The Court, however, declines at this time to rule on the issue of whether Plaintiffs’ FISA claim should be dismissed under the state secrets privilege, as that issue was not before the Court.

196a
APPENDIX D
1. 50 U.S.C. 1801 provides:
Definitions
As used in this subchapter:
(a) “Foreign power” means—
(1) a foreign government or any component thereof, whether or not recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;
(4) a group engaged in international terrorism or activities in preparation therefor;
(5) a foreign-based political organization, not substantially composed of United States persons;
(6) an entity that is directed and controlled by a foreign government or governments; or
(7) an entity not substantially composed of United States persons that is engaged in the international proliferation of weapons of mass destruction.
(b) “Agent of a foreign power” means—
(1) any person other than a United States person, who—

197a
(A) acts in the United States as an officer or employee of a foreign power, or as a member of a foreign power as defined in subsection (a)(4), irrespective of whether the person is inside the United States;
(B) acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States contrary to the interests of the United States, when the circumstances indicate that such person may engage in such activities, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires with any person to engage in such activities;
(C) engages in international terrorism or activities in preparation therefore;
(D) engages in the international proliferation of weapons of mass destruction, or activities in preparation therefor; or
(E) engages in the international proliferation of weapons of mass destruction, or activities in preparation therefor, for or on behalf of a foreign power, or knowingly aids or abets any person in the conduct of such proliferation or activities in preparation therefor, or knowingly conspires with any person to engage in such proliferation or activities in preparation therefor; or
(2) any person who—
(A) knowingly engages in clandestine intelligence gathering activities for or on behalf

198a
of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;
(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;
(C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power;
(D) knowingly enters the United States under a false or fraudulent identity for or on behalf of a foreign power or, while in the United States, knowingly assumes a false or fraudulent identity for or on behalf of a foreign power; or
(E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C).
(c) “International terrorism” means activities that—
(1) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would

199a
be a criminal violation if committed within the jurisdiction of the United States or any State;
(2) appear to be intended—
(A) to intimidate or coerce a civilian population;
(B) to influence the policy of a government by intimidation or coercion; or
(C) to affect the conduct of a government by assassination or kidnapping; and
(3) occur totally outside the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which their perpetrators operate or seek asylum.
(d) “Sabotage” means activities that involve a violation of chapter 105 of title 18, or that would involve such a violation if committed against the United States.
(e) “Foreign intelligence information” means—
(1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against—
(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
(B) sabotage, international terrorism, or the international proliferation of weapons of mass destruction by a foreign power or an agent of a foreign power; or

200a
(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or
(2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to—
(A) the national defense or the security of the United States; or
(B) the conduct of the foreign affairs of the United States.
(f ) “Electronic surveillance” means—
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of title 18;
(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the

201a
contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or
(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.
(g) “Attorney General” means the Attorney General of the United States (or Acting Attorney General), the Deputy Attorney General, or, upon the designation of the Attorney General, the Assistant Attorney General designated as the Assistant Attorney General for National Security under section 507A of title 28.
(h) “Minimization procedures”, with respect to electronic surveillance, means—
(1) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;

202a
(2) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1), shall not be disseminated in a manner that identifies any United States person, without such person’s consent, unless such person’s identity is necessary to understand foreign intelligence information or assess its importance;
(3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and
(4) notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to section 1802(a) of this title, procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1805 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.
(i) “United States person” means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101(a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the

203a
United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3).
( j) “United States”, when used in a geographic sense, means all areas under the territorial sovereignty of the United States and the Trust Territory of the Pacific Islands.
(k) “Aggrieved person” means a person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance.
(l) “Wire communication” means any communication while it is being carried by a wire, cable, or other like connection furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of interstate or foreign communications.
(m) “Person” means any individual, including any officer or employee of the Federal Government, or any group, entity, association, corporation, or foreign power.
(n) “Contents”, when used with respect to a communication, includes any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication.
(o) “State” means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Trust Territory of the Pacific Islands, and any territory or possession of the United States.

204a
(p) “Weapon of mass destruction” means—
(1) any explosive, incendiary, or poison gas device that is designed, intended, or has the capability to cause a mass casualty incident;
(2) any weapon that is designed, intended, or has the capability to cause death or serious bodily injury to a significant number of persons through the release, dissemination, or impact of toxic or poisonous chemicals or their precursors;
(3) any weapon involving a biological agent, toxin, or vector (as such terms are defined in section 178 of title 18) that is designed, intended, or has the capability to cause death, illness, or serious bodily injury to a significant number of persons; or
(4) any weapon that is designed, intended, or has the capability to release radiation or radioactivity causing death, illness, or serious bodily injury to a significant number of persons.
2. 50 U.S.C. 1806 provides:
Use of information
(a) Compliance with minimization procedures; privileged communications; lawful purposes
Information acquired from an electronic surveillance conducted pursuant to this subchapter concerning any United States person may be used and disclosed by Federal officers and employees without the consent of the United States person only in accordance with the minimization procedures required by this subchapter. No

205a
otherwise privileged communication obtained in accordance with, or in violation of, the provisions of this subchapter shall lose its privileged character. No information acquired from an electronic surveillance pursuant to this subchapter may be used or disclosed by Federal officers or employees except for lawful purposes.
(b) Statement for disclosure
No information acquired pursuant to this subchapter shall be disclosed for law enforcement purposes unless such disclosure is accompanied by a statement that such information, or any information derived therefrom, may only be used in a criminal proceeding with the advance authorization of the Attorney General.
(c) Notification by United States
Whenever the Government intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, against an aggrieved person, any information obtained or derived from an electronic surveillance of that aggrieved person pursuant to the authority of this subchapter, the Government shall, prior to the trial, hearing, or other proceeding or at a reasonable time prior to an effort to so disclose or so use that information or submit it in evidence, notify the aggrieved person and the court or other authority in which the information is to be disclosed or used that the Government intends to so disclose or so use such information.

206a
(d) Notification by States or political subdivisions
Whenever any State or political subdivision thereof intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of a State or a political subdivision thereof, against an aggrieved person any information obtained or derived from an electronic surveillance of that aggrieved person pursuant to the authority of this subchapter, the State or political subdivision thereof shall notify the aggrieved person, the court or other authority in which the information is to be disclosed or used, and the Attorney General that the State or political subdivision thereof intends to so disclose or so use such information.
(e) Motion to suppress
Any person against whom evidence obtained or derived from an electronic surveillance to which he is an aggrieved person is to be, or has been, introduced or otherwise used or disclosed in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the evidence obtained or derived from such electronic surveillance on the grounds that—
(1) the information was unlawfully acquired; or
(2) the surveillance was not made in conformity with an order of authorization or approval.
Such a motion shall be made before the trial, hearing, or other proceeding unless there was no opportunity to make such a motion or the person was not aware of the grounds of the motion.

207a
(f ) In camera and ex parte review by district court
Whenever a court or other authority is notified pursuant to subsection (c) or (d) of this section, or whenever a motion is made pursuant to subsection (e) of this section, or whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter, the United States district court or, where the motion is made before another authority, the United States district court in the same district as the authority, shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted. In making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.
(g) Suppression of evidence; denial of motion
If the United States district court pursuant to subsection (f ) determines that the surveillance was not lawfully authorized or conducted, it shall, in accordance with

208a
the requirements of law, suppress the evidence which was unlawfully obtained or derived from electronic surveillance of the aggrieved person or otherwise grant the motion of the aggrieved person. If the court determines that the surveillance was lawfully authorized and conducted, it shall deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure.
(h) Finality of orders
Orders granting motions or requests under subsection (g), decisions under this section that electronic surveillance was not lawfully authorized or conducted, and orders of the United States district court requiring review or granting disclosure of applications, orders, or other materials relating to a surveillance shall be final orders and binding upon all courts of the United States and the several States except a United States court of appeals and the Supreme Court.
(i) Destruction of unintentionally acquired information
In circumstances involving the unintentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States, such contents shall be destroyed upon recognition, unless the Attorney General determines that the contents indicate a threat of death or serious bodily harm to any person.

209a
( j) Notification of emergency employment of electronic surveillance; contents; postponement, suspension or elimination
If an emergency employment of electronic surveillance is authorized under subsection (e) or (f ) of section 1805 of this title and a subsequent order approving the surveillance is not obtained, the judge shall cause to be served on any United States person named in the application and on such other United States persons subject to electronic surveillance as the judge may determine in his discretion it is in the interest of justice to serve, notice of—
(1) the fact of the application;
(2) the period of the surveillance; and
(3) the fact that during the period information was or was not obtained.
On an ex parte showing of good cause to the judge the serving of the notice required by this subsection may be postponed or suspended for a period not to exceed ninety days. Thereafter, on a further ex parte showing of good cause, the court shall forego ordering the serving of the notice required under this subsection.
(k) Coordination with law enforcement on national security matters
(1) Federal officers who conduct electronic surveillance to acquire foreign intelligence information under this subchapter may consult with Federal law enforcement officers or law enforcement personnel of a State or political subdivision of a State (including the chief executive officer of that State or political subdivision who has

210a
the authority to appoint or direct the chief law enforcement officer of that State or political subdivision) to coordinate efforts to investigate or protect against—
(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
(B) sabotage, international terrorism, or the international proliferation of weapons of mass destruction by a foreign power or an agent of a foreign power; or
(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power. (2) Coordination authorized under paragraph (1) shall not preclude the certification required by section 1804(a)(7)(B)1 of this title or the entry of an order under section 1805 of this title.
3. 50 U.S.C. 1809 provides: Criminal sanctions
(a) Prohibited activities A person is guilty of an offense if he intentionally— (1) engages in electronic surveillance under color of law except as authorized by this chapter, chapter 119, 121, or 206 of title 18, or any express statutory authorization that is an additional exclusive means
1 See References in Text note below.

211a
for conducting electronic surveillance under section 1812 of this title;
(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by this chapter, chapter 119, 121, or 206 of title 18, or any express statutory authorization that is an additional exclusive means for conducting electronic surveillance under section 1812 of this title.
(b) Defense
It is a defense to a prosecution under subsection (a) that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction.
(c) Penalties
An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.
(d) Federal jurisdiction
There is Federal jurisdiction over an offense under this section if the person committing the offense was an officer or employee of the United States at the time the offense was committed.

212a
4. 50 U.S.C. 1810 provides:
Civil liability
An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 1801(a) or (b)(1)(A) of this title, respectively, who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation and shall be entitled to recover—
(a) actual damages, but not less than liquidated damages of $1,000 or $100 per day for each day of violation, whichever is greater;
(b) punitive damages; and
(c) reasonable attorney’s fees and other investigation and litigation costs reasonably incurred.