Yassir Fazaga v. Fbi

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

YASSIR FAZAGA; ALI UDDIN MALIK; No. 12-56867

YASSER ABDELRAHIM,

Plaintiffs-Appellees, D.C. No.

8:11-cv-00301-

v. 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; No. 12-56874

YASSER ABDELRAHIM,

Plaintiffs-Appellees, D.C. No.

8:11-cv-00301-

v. 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; No. 13-55017

YASSER ABDELRAHIM,

Plaintiffs-Appellants, D.C. No.

8:11-cv-00301-

v. CJC-VBK

FEDERAL BUREAU OF

INVESTIGATION; CHRISTOPHER A. ORDER AND

WRAY, Director of the Federal AMENDED

Bureau of Investigation, in his OPINION

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.

Appeal from the United States District Court

for the Central District of California

Cormac J. Carney, District Judge, Presiding

4 FAZAGA V. WALLS

Argued and Submitted December 7, 2015

Pasadena, California

Filed February 28, 2019

Amended July 20, 2020

Before: Ronald M. Gould and Marsha S. Berzon, Circuit

Judges and George Caram Steeh III,* District Judge.

Order;

Opinion by Judge Berzon;

Concurrence in Order by Judges Gould and Berzon;

Statement by Judge Steeh;

Dissent to Order by Judge Bumatay

*

The Honorable George Caram Steeh III, United States District Judge

for the Eastern District of Michigan, sitting by designation.

FAZAGA V. WALLS 5

SUMMARY**

Constitutional Law / Foreign Intelligence

Surveillance Act

The panel filed an amended opinion affirming in part and

reversing 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; denied a petition

for panel rehearing; and denied on behalf of the court a

petition for rehearing en banc.

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,

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

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

6 FAZAGA V. WALLS

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 FBI 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 FBI

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

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

FAZAGA V. WALLS 7

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 FBI Agent Defendants.

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

8 FAZAGA V. WALLS

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 FBI

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 the FBI 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

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

FAZAGA V. WALLS 9

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

would be premature.

The panel remanded for further proceedings. The panel

held that on remand, the FISA and Fourth Amendment

claims, to the extent the panel held they were validly pleaded

in the complaint and not subject to qualified immunity,

should proceed as usual. 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

electronic surveillance was lawfully authorized and

conducted. The panel further held that once the district court

used § 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. The panel noted that

the Government is free to raise a state secrets defense, which

10 FAZAGA V. WALLS

the district court should consider anew. The panel adopted

the D.C. Circuit’s meaning of “valid defense” in the state

secrets context set forth in In re Sealed Case, 494 F.3d 139

(D.C. Cir. 2007).

Concurring in the denial of rehearing en banc, Judge

Gould and Judge Berzon wrote to highlight fundamental

misperceptions made by the dissent from the denial of

rehearing en banc.

In a separate statement regarding the denial of rehearing

en banc, Senior District Judge Steeh wrote that, as a visiting

judge sitting by designation, he was not permitted to vote on

the petition for rehearing en banc, but he agreed with the

views expressed by Judges Berzon and Gould in their

concurrence in the denial of rehearing en banc.

Dissenting from the denial of rehearing en banc, Judge

Bumatay wrote that the panel’s opinion strained the meaning

of the Foreign Intelligence Surveillance Act and adopted a

virtually boundless view of 50 U.S.C. § 1806(f). He wrote

further that the decision seriously degraded the Executive

Branch’s ability to protect the Nation’s secrets, and upset the

balance of power among co-equal branches of government by

abrogating the state secrets privilege.

FAZAGA V. WALLS 11

COUNSEL

Carl J. Nichols (argued) and Howard M. Shapiro, Wilmer

Cutler Pickering Hale and Dorr LLP, Washington, D.C.;

Katie Moran, Wilmer Cutler Pickering Hale and Dorr LLP,

Los Angeles, California; for Defendants-Appellants/Cross-

Appellees Barbara Walls and J. Stephen Tidwell.

Alexander H. Cote (argued), Amos A. Lowder, Angela M.

Machala, and David C. Scheper, Scheper Kim & Harris LLP,

Los Angeles, California, for Defendants-Appellants/Cross-

Appellees Pat Rose, Paul Allen, and Kevin Armstrong.

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/Cross-Appellants.

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 S. Tyre, Kurt Opsahl, Lee Tien, and

12 FAZAGA V. WALLS

Cindy Cohn, Electronic Frontier Foundation, San Francisco,

California; for Amicus Curiae Electronic Frontier

Foundation.

FAZAGA V. WALLS 13

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.

14 FAZAGA V. WALLS

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

FAZAGA V. WALLS 15

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

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

16 FAZAGA V. WALLS

F. FTCA Claims . . . . . . . . . . . . . . . . . . . . . . . . . 99

1. FTCA Judgment Bar . . . . . . . . . . . . . . . . 100

2. FTCA Discretionary Function Exception

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

V. Procedures on Remand . . . . . . . . . . . . . . . . . . . . 102

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

FAZAGA V. WALLS 17

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 Surveillance Act, 50 U.S.C. § 1810; and the Federal Tort

Claims Act, 28 U.S.C. § 1346.

18 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 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,

FAZAGA V. WALLS 19

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.

20 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 21

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

22 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 23

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

24 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 25

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)).

26 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 27

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

28 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 29

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.

30 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 31

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.

32 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 33

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).

34 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 35

“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

36 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 37

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 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.

38 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 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 39

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)).

40 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 41

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).

42 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 43

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

44 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 45

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.

46 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 47

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.

48 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 49

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.

50 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 51

‘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

52 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 53

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 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.

54 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 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

FAZAGA V. WALLS 55

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

56 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 57

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.

58 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). 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.

FAZAGA V. WALLS 59

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

60 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 61

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.

62 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 63

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,

64 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 65

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. 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.

66 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 67

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, 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

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.

68 FAZAGA V. WALLS

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.

The plain text and statutory structure of FISA provide

otherwise. To begin, the language of the statute simply does

FAZAGA V. WALLS 69

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

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

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).

70 FAZAGA V. WALLS

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)

(“[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

FAZAGA V. WALLS 71

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.

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

72 FAZAGA V. WALLS

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 . . .

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 73

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, 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

74 FAZAGA V. WALLS

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,

FAZAGA V. WALLS 75

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 States v. Belfield, 692 F.2d

141, 148–49 (D.C. Cir. 1982); United States v. Nicholson, 955 F. Supp.

76 FAZAGA V. WALLS

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

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.

FAZAGA V. WALLS 77

“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.

We have repeatedly and consistently recognized that

federal courts can order expungement of records, criminal

78 FAZAGA V. WALLS

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

relief under the Constitution.33 Previous cases involving

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))).

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

FAZAGA V. WALLS 79

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

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.”).

80 FAZAGA V. WALLS

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”).

FAZAGA V. WALLS 81

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.

82 FAZAGA V. WALLS

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.

FAZAGA V. WALLS 83

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 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

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.

84 FAZAGA V. WALLS

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

FAZAGA V. WALLS 85

(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).

86 FAZAGA V. WALLS

§ 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.

FAZAGA V. WALLS 87

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 (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

88 FAZAGA V. WALLS

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

FAZAGA V. WALLS 89

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

90 FAZAGA V. WALLS

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

the point is not well established.” Id. at 1868. “[R]easonable

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.

FAZAGA V. WALLS 91

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.

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).

92 FAZAGA V. WALLS

D. Religious Freedom Restoration Act Claim Against

the Agent Defendants and Government Defendants

Plaintiffs allege tha

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