United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-1420

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Yoram Raz, *

*

Appellant, *

*

v. * Appeal from the United States

* District Court for the

Andy Lee, Sheriff of Benton County, * Western District of Arkansas.

*

Defendant, *

*

Robert M. Mueller, Director, Federal * [PUBLISHED]

Bureau of Investigations, *

*

Appellee, *

*

Don Melton, Director, Arkansas *

State Police, *

*

Defendant. *

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 Submitted: August 7, 2003

 Filed: September 16, 2003

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Before RILEY, HANSEN, and SMITH, Circuit Judges.

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PER CURIAM.
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Yoram Raz appeals the district court’s dismissal, on sovereign immunity

grounds, of his constitutional action, We reverse and remand.

Raz, a former Israeli citizen, filed a fee-paid complaint naming FBI Director

Robert Mueller in his official capacity and claiming the FBI violated his “most

fundamental Civil Rights.” According to Raz, the FBI continues to engage in what

has been a 15-year “campaign of Surveillance, Operations and harassment” against

him based on his “expression of certain unpopular political opinions” about the

Israeli-Arab conflict. Raz alleged FBI agents have placed monitoring stations near

his residence; stalk him on a regular basis; issue “ALERTS” to local law-enforcement

agencies so that he is immediately recognized wherever he goes; performed an illegal

search of his Louisiana home in October 1998; tapped his telephones and planted

electronic tracers in his car; have caused him to be ostracized by issuing “warnings”

to stores and other businesses he frequents; initiated rumors throughout the

community that Raz was a “spy” or “subversive element,” which resulted in

individuals breaking into his home, hog-tying him, and severely beating him; and

turned many of his acquaintances into spies working against him. Further, Raz

alleged the FBI’s surveillance activities caused him “stress” and “severe deterioration

of health and premature aging”; severely limited his “ability to make new

acquaintances and destroyed forever relationships between friends”; interfered with

his ability to re-marry and procreate as the ongoing surveillance scares away potential

dates; made it nearly impossible to find employment; forced him to relocate several

times; and caused him severe bodily injuries. Raz sought an injunction prohibiting

Director Mueller and the FBI from continuing their violations of his constitutional

rights.

Having reviewed the record and appellate briefs, we conclude the district court

should not have dismissed Raz’s fee-paid complaint based on sovereign-immunity

grounds. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (complaint should not be

dismissed for failure to state claim unless it appears beyond doubt that plaintiff can
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prove “no set of facts” in support of claim which would entitle him to relief); Rupp

v. Omaha Indian Tribe, 45 F.3d 1241, 1244 (8th Cir. 1995) (de novo review of

sovereign immunity). 

We conclude that Raz’s cumulative allegations present justiciable claims under

the Constitution. See 28 U.S.C. § 1331 (district courts have jurisdiction over all civil

actions arising under Constitution); Anderson v. Davila, 125 F.3d 148, 160-63 (3d

Cir. 1997) (plaintiff stated viable claim against government where he alleged that

government engaged in surveillance of him in retaliation for his exercise of First

Amendment rights); Clark v. Library of Cong., 750 F.2d 89, 91-99 (D.C. Cir. 1984)

(library worker investigated by FBI based solely on his political associations

presented justiciable claim where worker alleged investigation caused him to lose

employment opportunities). Further, the United States does not enjoy immunity from

Raz’s injunctive-relief action, because section 702 of the Administrative Procedure

Act (APA) expressly waives sovereign immunity as to any action for nonmonetary

relief brought against the United States. See 5 U.S.C. § 702 (action seeking relief

other than money damages should not be dismissed on grounds that it is brought

against United States); Black Hills Inst. of Geological Research v. S.D. Sch. of Mines

& Tech., 12 F.3d 737, 740 (8th Cir. 1993) (citing Specter v. Garrett, 995 F.2d 404,

410 (3d Cir. 1993) (holding that § 702’s waiver of sovereign immunity is not limited

to cases brought under APA), rev’d on other grounds, 511 U.S. 462 (1994)), cert.

denied, 513 U.S. 810 (1994); Red Lake Band of Chippewa Indians v. Barlow, 846

F.2d 474, 476 (8th Cir. 1988) (§ 702 waiver is not dependent on application of APA;

§ 702 waiver is dependent only on suit being against government and being one for

nonmonetary relief); see also Presbyterian Church v. United States, 870 F.2d 518,

524-25 (9th Cir. 1989) (§ 702 waives sovereign immunity with respect to injunctiverelief action arising directly under Constitution).

Accordingly, we reverse the judgment of the district court and remand for

further proceedings. We also deny the pending motion.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.