Petition for Writ of Certiorari — Carter Page, Petitioner v. James B. Comey, et al.

Supreme Court briefDec 11, 2025

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No. ______

In the Supreme Court of the United States

CARTER PAGE, Petitioner,

JAMES B. COMEY; ANDREW MCCABE;

KEVIN CLINESMITH; PETER STRZOK; LISA PAGE;

JOE PIENTKA, III; STEPHEN SOMMA; BRIAN J. AUTEN;

UNITED STATES DEPARTMENT OF JUSTICE;

FEDERAL BUREAU OF INVESTIGATION;

UNITED STATES OF AMERICA;

JOHN DOE 1-10; JANE DOE 1-10

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

GENE C. SCHAERR

Counsel of Record

ERIK S. JAFFE

BRIAN J. FIELD

HANNAH C. SMITH

JOSHUA J. PRINCE

SCHAERR | JAFFE LLP

1717 K Street NW, Suite 900

Washington, DC 20006

(202) 787-1060

gschaerr@schaerr-jaffe.com

Counsel for Petitioner

QUESTION PRESENTED

The Federal Bureau of Investigation obtained

four warrants from the Foreign Intelligence

Surveillance Court to surveil Petitioner Dr. Carter

Page. But its applications contained multiple errors,

omissions, and misstatements that the FBI later

concluded vitiated its showing of probable cause.

Worse, it was later revealed that two agents leaked

information about the FBI’s surveillance to the press,

resulting in an April 2017 article in The Washington

Post on which the government expressly “declined to

comment.” The United States first acknowledged its

surveillance abuses in an Office of the Inspector

General report two years later. Less than a year later,

Dr. Page sued the individual respondents—the FBI

officials and leaders involved in the surveillance—for

unlawfully surveilling him and unlawfully using or

disclosing surveillance-obtained information.

The D.C. Circuit held that Dr. Page’s claims

accrued, not when the government acknowledged its

abuses, but when Dr. Page became aware of the

anonymously sourced, unverified news article. And

the D.C. Circuit did so without applying—and in

contravention of—this Court’s “standard rule” that a

claim does not accrue “until the plaintiff can file suit

and obtain relief.” Corner Post, Inc. v. Board of

Governors of Fed. Rsrv. Sys., 603 U.S. 799, 810-811

(2024) (emphasis added).

The question presented is: Do claims that the

government violated surveillance authorities accrue

as a matter of law based merely on facts that might

lead a victim to suspect unlawful surveillance, rather

than on facts that would establish a basis for relief?

PARTIES TO THE PROCEEDING

The case caption contains the names of all parties

to the proceeding.

Petitioner Carter Page was the Appellant in the

D.C. Circuit and the Plaintiff in the district court.

Respondents James B. Comey, 1 Andrew McCabe,

Kevin Clinesmith, Peter Strzok, Lisa Page, Joe

Pientka, III, Stephen Somma, Brian J. Auten, the

United States Department of Justice, the Federal

Bureau of Investigation, the United States of America,

John Doe 1-10, and Jane Doe 1-10 were the Appellees

in the D.C. Circuit and the Defendants in the district

court.

1 When

the extension application in this case docketed,

No. 25A385, Mr. Comey was automatically substituted for the

current director of the FBI, Kash Patel. This was error: Mr.

Comey was sued in his individual capacity, not in his official

capacity, and remains a respondent. See App.168a (¶26).

iii

CORPORATE DISCLOSURE STATEMENT

Petitioner Carter Page is an individual person,

and no corporate disclosure is required.

STATEMENT OF RELATED PROCEEDINGS

The following proceedings are directly related to

this case:

•

Page v. Comey, No. 23-5038 (D.C. Cir.)

(opinion affirming dismissal entered May 23,

2025 (App.A); petition for rehearing en banc

denied July 14, 2025 (App.D)); and

•

Page v. Comey, No. 1:20-cv-03460-DLF

(D.D.C.) (memorandum opinion dismissing

claims entered September 1, 2022 (App.C);

motion to alter or amend judgment denied

January 18, 2023 (App.B)).

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

PARTIES TO THE PROCEEDING ........................... ii

CORPORATE DISCLOSURE STATEMENT ...........iii

STATEMENT OF RELATED PROCEEDINGS ....... iv

TABLE OF AUTHORITIES ..................................... vii

INTRODUCTION ....................................................... 1

OPINIONS BELOW ................................................... 3

JURISDICTION ......................................................... 4

STATUTORY PROVISIONS INVOLVED ................. 4

STATEMENT OF THE CASE.................................... 4

Legal Background .......................................... 4

Factual Background....................................... 6

Procedural History ....................................... 12

REASONS FOR GRANTING THE PETITION ....... 18

The Rule Adopted Below Is

Inconsistent with This Court’s ClaimAccrual Precedents. ..................................... 18

II.

The Question Presented Is

Exceptionally Important.............................. 26

III. This Case Cleanly Presents the

Question Presented. ..................................... 28

CONCLUSION ......................................................... 30

APPENDICES

APPENDIX A:

Opinion, Page v. Comey,

No. 23-5038 (D.C. Cir.), May 23, 2025 ................ 1a

APPENDIX B:

Memorandum Opinion,

Page v. Comey, No. 1:20-cv-03460-DLF

(D.D.C.), Jan. 18, 2023, Doc. 127 ...................... 75a

APPENDIX C:

Memorandum Opinion,

Page v. Comey, No. 1:20-cv-03460-DLF

(D.D.C.), Sep. 1, 2022, Doc. 115 ........................ 87a

APPENDIX D:

Order, Page v. Comey,

No. 23-5038 (D.C. Cir.), July 14, 2025 ............ 156a

APPENDIX E:

Second Amended Complaint,

Page v. Comey, No. 1:20-cv-03460-DLF

(D.D.C.), June 8, 2021, Doc. 73 ....................... 158a

APPENDIX F:

Federal Rule of Civil Procedure,

Rule 12(b)......................................................... 244a

APPENDIX G:

Foreign Intelligence Surveillance Act

[excerpted], 50 U.S.C. §§ 1806, 1809, 1810 .... 245a

APPENDIX H:

18 U.S.C. § 2712 .............................................. 254a

vii

TABLE OF AUTHORITIES

Cases

Page(s)

ACLU v. United States,

142 S. Ct. 22 (2021) ................................................ 24

Albright v. Oliver,

510 U.S. 266 (1994) .................................................. 1

American Premier Underwriters, Inc.

v. National R.R. Passenger Corp.,

839 F.3d 458 (6th Cir. 2016) .................................... 6

Anza v. Ideal Steel Supply Corp.,

547 U.S. 451 (2006) .................................................. 6

Ashcroft v. Iqbal,

556 U.S. 662 (2009) ................................ 2, 19, 20, 28

Bailey v. Glover,

88 U.S. (21 Wall.) 342 (1874) ................................... 5

Bay Area Laundry & Dry Cleaning

Pension Tr. Fund v. Ferbar Corp.

of Cal., Inc., 522 U.S. 192 (1997) ........... 5, 19, 20, 28

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) ................................................ 20

Corner Post, Inc. v. Board of Governors of

Fed. Rsrv. Sys., 603 U.S. 799 (2024) ................ i, 2, 5

District of Columbia v. Wesby,

583 U.S. 48 (2018) .................................................. 22

FBI v. Fazaga,

595 U.S. 344 (2022) ...................................... 2, 21, 26

Firestone v. Firestone,

76 F.3d 1205 (D.C. Cir. 1996) .................................. 6

viii

Gabelli v. SEC,

568 U.S. 442 (2013) ............................................ 6, 22

Graham Cnty. Soil & Water Conservation

Dist. v. United States ex rel. Wilson,

545 U.S. 409 (2005) ................................................ 18

Henry v. United States,

361 U.S. 98 (1959) .................................................. 23

Hobson v. Wilson,

737 F.2d 1 (D.C. Cir. 1984) .................................... 13

Klehr v. A.O. Smith Corp.,

521 U.S. 179 (1997) ................................................ 27

National Rifle Ass’n of Am. v. Vullo,

602 U.S. 175 (2024) ................................................ 28

Nieves v. Bartlett,

587 U.S. 391 (2019) ................................................ 23

Petrella v. Metro-Goldwyn-Mayer, Inc.,

572 U.S. 663 (2014) .................................................. 5

Rotella v. Wood,

528 U.S. 549 (2000) ............................................ 5, 21

Rotkiske v. Klemm,

589 U.S. 8 (2019) ...................................................... 6

Schaerr v. United States Dep’t of Just.,

69 F.4th 924 (D.C. Cir. 2023) ................................ 25

Schuler v. United States,

628 F.2d 199 (D.C. Cir. 1980) ................................ 15

Smith & Wesson Brands, Inc.

v. Estados Unidos Mexicanos,

605 U.S. 280 (2025) .......................................... 20, 27

Sprint Commc’ns Co. v. FCC,

76 F.3d 1221 (D.C. Cir. 1996) ............................ 1, 20

Tellabs, Inc. v. Makor Issues & Rts., Ltd.,

551 U.S. 308 (2007) .................................................. 8

TRW Inc. v. Andrews,

534 U.S. 19 (2001) .................................................. 19

United States v. Belfield,

692 F.2d 141 (D.C. Cir. 1982) ................................ 24

United States v. Kubrick,

444 U.S. 111 (1979) .................................................. 6

William A. Graham Co. v. Haughey,

568 F.3d 425 (3rd Cir. 2009) .................................... 5

Statutes

18 U.S.C. § 2712.................................................. 27, 29

28 U.S.C. § 1254.......................................................... 4

50 U.S.C. § 1804.................................................. 14, 21

50 U.S.C. § 1805........................................................ 21

50 U.S.C. § 1809..................... 12, 15-17, 21, 26, 29, 30

50 U.S.C. § 1810........................................................ 26

50 U.S.C. § 1872........................................................ 24

Foreign Intelligence Surveillance Act

of 1978, Pub. L. No. 95-511, 92 Stat. 1783 .............. 4

Uniting and Strengthening America by

Providing Appropriate Tools Required to

Intercept and Obstruct Terrorism Act

of 2001, Pub. L. No. 107-56, 115 Stat. 272 .............. 4

Rules

Fed. R. Civ. P. 12 ........................................................ 4

Sup. Ct. R. 10 .............................................................. 1

Other Authorities

John Kelly,

A Treatise on the Code Limitations

of Actions Under All State Codes (1903) ............... 19

Off. of Inspector Gen., U.S. Dep’t of Just.,

No. 20-012, Review of Four FISA

Applications and Other Aspects

of the FBI’s Crossfire Hurricane

Investigation (Dec. 2019) .............................. 8-11, 22

Opinion and Order Regarding Use

and Disclosure of Information,

In re Carter W. Page, A U.S. Person,

Nos. 16-1182, 17-52, 17-375, 17-679

(F.I.S.C. June 25, 2020) ......................................... 12

Order,

In re Carter W. Page, A U.S. Person,

Nos. 16-1182, 17-52, 17-375, 17-679

(F.I.S.C. June 17, 2025) ......................................... 24

H.G. Wood,

A Treatise on the Limitation of Actions

at Law and in Equity

(Boston, Soule & Bugbee 1883) ............................. 19

INTRODUCTION

The D.C. Circuit held that claims brought by

Petitioner Dr. Carter Page challenging unlawful and

secret surveillance by the Federal Bureau of

Investigation (FBI) accrued once Dr. Page read

anonymously sourced news articles describing that

surveillance because Dr. Page characterized the

reported surveillance as “unjustified” and “politically

motivated.” App.19a. But the panel never addressed

whether Dr. Page’s claims would have survived a

motion to dismiss if he had brought them based on the

information in the news articles alone. Instead, the

court concluded that the articles contained enough

information for Dr. Page’s claims to accrue, because

“accrual is not delayed just because the plaintiff does

not yet have ‘access to or constructive knowledge of all

the facts required to support [a] claim.’” App.18a-19a

(first emphasis added) (quoting Sprint Commc’ns Co.

v. FCC, 76 F.3d 1221, 1226 (D.C. Cir. 1996)). That rule

cannot be squared with this Court’s accrual

precedents. Those precedents—at the very least—

require knowledge of the injury such that an injured

party can sue and obtain relief. But a person who

merely suspects unlawful government surveillance

does not know that he has been injured and cannot sue

and obtain relief since such surveillance is secret and

cannot be investigated. Under Supreme Court Rule

10(c), this Court should grant the petition and reverse.

For federal claims, accrual is a “question * * * of

federal law.” Albright v. Oliver, 510 U.S. 266, 280 n.6

(1994). In answering that federal question, the Court

has explained that claims do not accrue until the

plaintiff can sue and obtain relief. Corner Post, Inc. v.

Board of Governors of Fed. Rsrv. Sys., 603 U.S. 799,

810 (2024). Since claims grounded in speculative “thedefendant-unlawfully-harmed-me accusation[s]” will

not survive a motion to dismiss, Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (cleaned up), a plaintiff cannot

sue and obtain relief for non-speculative claims. The

D.C. Circuit was thus wrong: For challenges to secret

surveillance, accrual must be delayed until the

plaintiff has “access to or constructive knowledge of all

the facts required to support [a] claim” since the

missing facts are undiscoverable and necessary to

support the existence of a legal, redressable injury.

App.18a-19a (cleaned up). Mere inquiry notice cannot

be enough for surveillance claims to accrue since any

inquiry will be fruitless: Attempts to learn about

confidential government surveillance are sure to fail

because any evidence will be inaccessible absent

specialized legal process that could only be invoked

after surviving a motion to dismiss. E.g., FBI v.

Fazaga, 595 U.S. 344, 351-352 (2022).

Here, by holding that Dr. Page had to bring his

claims even before he had access to all the facts

necessary to support his suspicion that he was being

illegally surveilled, the D.C. Circuit guaranteed that

surveillance claims will ordinarily accrue too early.

This, in turn, all but guarantees the Catch-22 that

such claims will either be dismissed as too speculative

or as time-barred. Under the panel’s reasoning, if

there is any basis to show that a plaintiff suspected

unlawful surveillance or the unlawful use or

disclosure of surveillance-obtained information, no

matter how speculative, the claim has accrued.

It cannot be that surveillance claims are too

speculative until they are untimely. Until that

exceptionally important question of federal law is

properly resolved, the meaningful guardrails against

surveillance that Congress enacted are nugatory. To

avoid nullifying protections to victims of the

surveillance state, this Court should reiterate, either

summarily or on plenary review, that claims

challenging secret government surveillance do not

accrue until a plaintiff knows the facts necessary to

bring non-speculative claims that can survive a motion

to dismiss. Otherwise, the rule adopted below will lead

to an influx of lawsuits based on speculation alone.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the D.C. Circuit is published at 137 F.4th 806 and

reproduced in Appendix A, App.1a-74a.

The district court’s opinion denying Dr. Page’s

motion for reconsideration is not published but is

available at 2023 WL 244350 and reproduced in

Appendix B, App.75a-86a.

The district court’s opinion granting the various

motions to dismiss is reported at 628 F. Supp. 3d 103

and reproduced in Appendix C, App.87a-155a.

The per curiam order denying Dr. Page’s petition

for rehearing en banc is not published but is available

at 2025 WL 2004959 and reproduced in Appendix D,

App.156a-157a.

JURISDICTION

The D.C. Circuit’s opinion issued on May 23, 2025.

App.1a. Dr. Page’s petition for rehearing en banc was

denied on July 14, 2025. App.156a. Chief Justice

Roberts granted Dr. Page’s timely request for a 60-day

extension to file this petition to December 11, 2025.

No. 25A385. This Court has jurisdiction under 28

U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The text of Rule 12(b) is reproduced in

Appendix F, App.244a. The text of the relevant

sections of the Foreign Intelligence Surveillance Act of

1978 (FISA) is reproduced in Appendix G, App.245a253a. The text of the relevant section of the Uniting

and Strengthening America by Providing Appropriate

Tools Required to Intercept and Obstruct Terrorism

Act of 2001 (USA PATRIOT Act or PATRIOT Act) is

reproduced in Appendix H, App.254a-257a.

STATEMENT OF THE CASE

Legal Background

This petition seeks the Court’s review of the D.C.

Circuit’s holding that certain claims brought by

Petitioner Carter Page under FISA, Pub. L. No. 95511, 92 Stat. 1783, and the USA PATRIOT Act, Pub.

L. No. 107-56, 115 Stat. 272, accrued with the

publication of an anonymously sourced news article

and were thus time-barred.

This Court recently reiterated the longstanding

principle that a claim accrues only “when the plaintiff

has a complete and present cause of action—i.e., when

she has the right to file suit and obtain relief.” Corner

Post, 603 U.S. at 809 (cleaned up). Under that rule,

any argument that limitations periods “commence[] at

a time when the [injured party] could not yet file suit”

is wrong. Bay Area Laundry & Dry Cleaning Pension

Tr. Fund v. Ferbar Corp. of Cal., Inc., 522 U.S. 192,

200 (1997). As the dissenting justices in Corner Post

recognized, this means that the accrual rule is

generally “context specific.” Corner Post, 603 U.S. at

853 (Jackson, J., dissenting) (collecting cases).

Often, a claim will accrue “when an infringing act

occurs.” Petrella v. Metro-Goldwyn-Mayer, Inc., 572

U.S. 663, 670 (2014). This is known as the “incident of

injury” rule. Id. at 670 n.4. Most circuits “have

adopted, as an alternative,” a “‘discovery rule,’ which

starts the limitations period when ‘the plaintiff

discovers, or with due diligence should have

discovered, the injury that forms the basis for the

claim.’” Ibid. (quoting William A. Graham Co. v.

Haughey, 568 F.3d 425, 433 (3rd Cir. 2009)). Where

such a rule applies, the Court has “been at pains to

explain that discovery of the injury, not discovery of

the other elements of a claim, is what starts the clock.”

Rotella v. Wood, 528 U.S. 549, 555 (2000).

The discovery rule tends to apply only when the

injury “has been concealed, or is of such character as

to conceal itself[.]” Bailey v. Glover, 88 U.S. (21 Wall.)

342, 349-350 (1874). For such “self-concealing”

injuries, the discovery rule makes sense: “[P]rivate

parties may be unaware that they have been harmed,”

and “we do not typically spend our days looking for

evidence that we were lied to,” “defrauded,” or—as

here—illegally surveilled. Gabelli v. SEC, 568 U.S.

442, 450-451 (2013). In short, sometimes, whether a

plaintiff “has been injured in fact may be unknown or

unknowable.” United States v. Kubrick, 444 U.S. 111,

122 (1979).

Whatever the justifications for a discovery rule in

some circumstances, the Court has never broadly

adopted it. Instead, it has acknowledged lower court

decisions doing so and “repeatedly characterized”

those decisions as applying “an equity-based doctrine”

that “is distinct from the traditional equitable tolling

doctrine.” Rotkiske v. Klemm, 589 U.S. 8, 15 (2019)

(collecting cases). As lower courts have recognized, the

point at which an injured party discovered or

reasonably could have discovered its injury is typically

a question left to the jury. See, e.g., Firestone v.

Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996); see also

American Premier Underwriters, Inc. v. National R.R.

Passenger Corp., 839 F.3d 458, 464 (6th Cir. 2016).

Under that rule, dismissal is “appropriate only if the

complaint on its face is conclusively time-barred.”

Firestone, 76 F.3d at 1209.

Factual Background 2

Dr. Page is a long-time contributor to the Nation’s

national-security efforts as an “operational contact” of

the Central Intelligence Agency (CIA). App.180a.

Despite years of service, Page was targeted by

Operation Crossfire Hurricane, a flawed FBI

investigation into Donald Trump’s 2016 Presidential

2 Because the petition “arises from a motion to dismiss,” the

facts in the Second Amended Complaint are presented, and must

be accepted, as true. Anza v. Ideal Steel Supply Corp., 547 U.S.

451, 453 (2006).

Campaign investigating suspected Russian influence.

App.161a. Through deliberate lies and incomplete

factual assertions, the FBI convinced the Foreign

Intelligence Surveillance Court (FISC) that there was

probable cause to believe that Dr. Page was an

intermediary between Russia and Paul Manafort, the

Trump campaign’s chair. App.164a-166a, 180a, 204a205a. This led the court to grant multiple FISA

surveillance warrants to surveil Dr. Page. App.159a160a. The FBI ultimately submitted four warrant

applications—the original and three extension

applications—and received four warrants. App.160a.

The FBI submitted the last application in June 2017.

App.168a.

Before the FBI submitted its final renewal

application, however, two members of Operation

Crossfire Hurricane, respondents Peter Strzok and

Lisa Page, conspired to anonymously leak information

from the FBI’s secret surveillance of Dr. Page to the

press to smear his image—and by extension the

Trump campaign. App.217a. The first outlet to

address the leak was The Washington Post in an April

2017 article called FBI obtained FISA warrant to

monitor former Trump advisor Carter Page. App.7a.

The article reported that the FBI had “convinc[ed] a

Foreign Intelligence Surveillance Court judge that

there was probable cause to believe Page was acting as

an agent of a foreign power, in this case Russia” and

that the warrant had been renewed “more than once.”

JA095, JA097. 3 That claim, however, was made “on

3 JA

Circuit.

citations are to the Joint Appendix filed in the D.C.

the condition of anonymity” because the sources were

“not

authorized

discuss

details

counterintelligence probe.” JA095. The article made

clear that the “White House, FBI and Justice

Department declined to comment.” JA096. And it

emphasized that respondent James Comey had only

recently declined to comment “about any individuals,

including Page” in congressional testimony about the

FBI’s “investigating efforts by the Russian

government to interfere in the 2016 election.” JA096.

The New York Times mimicked aspects of the story,

App.219a-220a, but—like The Washington Post—

provided no source.

Because he knew that he was factually innocent

of being a Russian agent, Dr. Page suspected from the

news articles that he had been illegally surveilled.

App.19a. And Dr. Page shared that suspicion with

Congress and the public. App.56a, 57a & n.10. But

foreign intelligence investigations are conducted in

secret, App.108a, so Dr. Page’s suspicions could not be

verified regardless of the steps he took to learn more.

More than two years later, the Office of Inspector

General (OIG) published its December 2019 report

outlining the FBI’s repeated and thorough

surveillance abuses against Dr. Page. App.20a. 4 The

OIG Report found that, “based upon the information

4 Off. of Inspector Gen., U.S. Dep’t of Just., No. 20-012, Review

of Four FISA Applications and Other Aspects of the FBI’s

Crossfire Hurricane Investigation (Dec. 2019), https://tinyurl.

com/2pfxvrpf [hereinafter, “OIG Rep.”]. The OIG Report was

addressed at length in the Complaint, e.g., App.168a, 171a, and

the Court can consider it, Tellabs, Inc. v. Makor Issues & Rts.,

Ltd., 551 U.S. 308, 322 (2007).

known to the FBI in October 2016, the first application

contained” “seven significant inaccuracies and

omissions.” 5

First, the FBI omitted information “obtained from

another U.S. government agency detailing its prior

relationship with Page, including that Page had been

approved as an ‘operational contact’ for the other

agency.” 6 Second, the application characterized its

source’s reporting as having been “corroborated and

used in criminal proceedings,” an unauthorized

overstatement of “the significance of [that] past

reporting.” 7 Third, the FBI failed to tell FISC that “a

key * * * sub-source” was himself the subject of an FBI

counterintelligence investigation, was a known

“boaster” and “egoist,” and was willing to “engage in

some embellishment.” 8 Fourth, the FBI told FISC that

it had verified that its source had only leaked its

research to the FBI and a third-party when the FBI

knew its source had also given “his information to the

State Department.” 9 Fifth, the FBI omitted

statements “denying that anyone associated with the

Trump campaign was collaborating with Russia or

with outside groups like Wikileaks.” 10 Sixth, despite

the FBI’s claiming that Dr. Page was the intermediary

between Russia and Paul Manafort, the FBI omitted

statements from Dr. Page that he had never met and

5 OIG Rep. at viii.

6 Ibid.

7 Id. at viii-ix.

8 Id. at ix.

9 Ibid.

10 Ibid.

never spoken with Paul Manafort. 11 Seventh, the FBI

omitted statements from Dr. Page “that were

inconsistent with its theory” that “Page was an agent

of Russia.” 12

These seven inaccuracies and omissions were not

brought to the attention of the National Security

Division’s Office of Intelligence until after “the last

FISA application was filed in June 2017.” 13

“Consequently, these failures were repeated in all

three renewal applications.” 14

But the FBI did not stop with the seven material

failures in the original application. The OIG also

“identified 10 additional significant errors in the

renewal applications.” 15 First, the FBI omitted

information “raising significant questions about the

reliability of allegations included in the FISA

applications.” 16 Second, the FBI omitted yet another

reminder from a U.S. government agency that Dr.

Page was an operational contact. 17 Third, the FBI

omitted information that the FBI’s source lacked “selfawareness,” demonstrated “poor judgment,” and was

unlikely to have validated his reporting. 18 Fourth, the

FBI omitted information showing that the FBI’s

11 Ibid.

12 Ibid.

13 Ibid.

14 Ibid.

15 Id. at xi.

16 Ibid.

17 Ibid.

18 Ibid.

source’s information was shared with the Hillary

Clinton campaign, that the source was paid to “discuss

his reporting with the media,” and that the source was

“desperate that Donald Trump not get elected.” 19

Fifth, the FBI omitted information that “provided

greater clarity on the political origins and connections

of [the source’s] reporting.” 20 Sixth, the FBI failed to

correct its earlier assertion that the source had not

provided its information to the news media. 21 Seventh,

the FBI omitted an FBI finding that the source’s “past

contributions to the FBI’s criminal program” had only

“been ‘minimally corroborated.’” 22 Eighth, the FBI

omitted statements “denying that the Trump

campaign was involved in the circumstances” of an

email hack of the Democratic National Committee. 23

Ninth, the FBI omitted denials “suggesting that the

campaign received an offer or suggestion of assistance

from Russia.” 24 And tenth, the FBI omitted

information showing that Dr. Page “played no role” in

changes to the Republican platform addressing

“Russia’s annexation of Ukraine” despite asserting his

participation “in all four FISA applications.” 25

The same day that the OIG Report issued, the FBI

“advised [FISC] of its assessment that,” for at least the

latter two applications, “if not earlier, there was

19 Ibid.

20 Id.

at xii.

21 Ibid.

22 Ibid.

23 Ibid.

24 Ibid.

25 Ibid.

insufficient predication to establish probable cause to

believe that Page was acting as an agent of a foreign

power.” Opinion and Order Regarding Use and

Disclosure of Information at 2, In re Carter W. Page,

A U.S. Person, Nos. 16-1182, 17-52, 17-375, 17-679

(F.I.S.C. June 25, 2020). FISC eventually found

“violations of the government’s duty of candor, in all

four applications.” Id. at 3.

Although Dr. Page previously suspected that, if

he was surveilled as the news articles reported, any

surveillance was illegal, Dr. Page did not know—and,

because surveillance is confidential, could not have

learned—about the illegal conduct plaguing the FBI’s

surveillance applications until the OIG Report issued

in December 2019.

Procedural History

On November 27, 2020, less than a year after the

OIG issued its report, Dr. Page filed his initial

complaint, asserting, as relevant here, claims against

members of the Operation Crossfire Hurricane team—

the individual respondents—for (1) unlawfully

surveilling him in violation of 50 U.S.C. § 1809(a)(1)

and (2) “disclos[ing] or us[ing]” information about him

“obtained through electronic surveillance” in violation

of 50 U.S.C. § 1809(a)(2). App.3a, 11a. While those

claims were pending, Dr. Page exhausted his

administrative remedies to bring a claim against the

United States under the PATRIOT Act. App.12a n.3.

He amended his complaint to bring that claim in June

2021. App.12a.

1. Defendants moved to dismiss, and the district

court granted those motions after holding that “Page

has brought no actionable claim against any

individual defendant or against the United States.”

App.154a. But the court reached that conclusion on

the merits and declined to dismiss Dr. Page’s “FISA

claims as time-barred” because the court clarified that

it was “far from clear that a diligent investigation

would have revealed enough evidence of illegality to

avoid ‘fil[ing] suit on a hunch.’” App.108a-109a

(quoting Hobson v. Wilson, 737 F.2d 1, 39 (D.C. Cir.

1984), overruled in part on other grounds by

Leatherman v. Tarrant Cnty. Narcotics Intel. &

Coordination Unit, 507 U.S. 163 (1993)). In so

concluding, the court explained both that the

complaint did “not allege that Page had access to the

underlying affidavits” and that the news articles did

not “describe the[ir] contents” either. App.108a. The

Court added that it was “unlikely that Page would

have been granted full access to them” if he tried and

that it was “unclear from the complaint what

investigative steps, if any, Page took or could have

taken after April 2017” to avoid filing suit on a hunch.

App.108a-109a.

For largely the same reasons, the district court

refused to dismiss Dr. Page’s PATRIOT Act claim as

time-barred. App.141a. Though the district court

found it “true that Page had notice of the alleged

violations” two years before his administrative claims,

it held that said notice was not enough: “Simply

because Page knew about the FISA renewals does not

mean that he knew that the applications contained

FISA-obtained information” that would have

supported a use-or-disclosure claim under the

PATRIOT Act. App.141a.

2. On appeal, a divided panel affirmed, finding all

of Dr. Page’s claims untimely. App.3a. The panel

purported to apply the discovery rule for claim accrual

and held that Dr. Page’s claims accrued not in

December 2019 with the publication of the OIG

Report, but in April 2017 with the publication of the

two news articles. App.21a. The panel held that the

surveillance claims accrued because Dr. Page decried

the reported surveillance as “unjustified” and

“politically motivated” in The Washington Post article

itself. App.21a.

The panel’s holding as to the accrual of the useor-disclosure claims was more complicated. The panel

explained that those claims accrued because the news

articles reported that the warrants had been renewed

“more than once.” App.21a-22a. From that one line,

the panel concluded that Dr. Page should have known

that anything the FBI learned from its initial warrant

would have been used or disclosed in all subsequent

FISA applications since FISA requires “a summary

statement of the foreign intelligence information

obtained pursuant to the original order.” App.21a-22a

(discussing and quoting 50 U.S.C. § 1804(a)(8), (11)

(emphasis omitted)).

The panel also pointed to a May 2017 letter from

Dr. Page to the House Intelligence Committee where

Dr. Page hyperbolically aired his suspicions that the

investigation reported in the anonymously sourced

April 2017 news articles—if it had occurred—was an

“unjustified,” “politically motivated” “potpourri of

falsehoods from the Clinton/Obama regime.” App.23a24a. This letter, the panel concluded, “confirms that

Page knew of the unlawfulness of the FISA warrants

and his resultant injury” and “had sufficient notice by

April 2017” to bring his claims. App.24a. 26

Having concluded that Dr. Page’s claims accrued

in April 2017, the panel found that his § 1809(a)(1)

surveillance claim and his § 1809(a)(2) use-ordisclosure claims were time-barred under “D.C.’s

three-year statute of limitations,” which the panel

assumed, without deciding, applied. App.18a. The

panel also concluded that one theory of Dr. Page’s

§ 1809(a)(2) claim—that respondents Lisa Page and

Peter Strzok “leaked the FISA warrants’ results” to

the media—was “insufficiently pleaded.” App.3a,

25a. 27

As to Dr. Page’s PATRIOT Act claim, the panel

applied a two-year statute of limitations and

concluded that this claim too was time-barred because

it accrued in April 2017. App.27a-28a (citing Schuler

v. United States, 628 F.2d 199, 201 (D.C. Cir. 1980)).

The panel did not reach the merits of that claim. See

App.30a.

26 The panel did not explain how the April 2017 news articles

could possibly have notified Dr. Page about any claims related to

the final warrant application, which was not submitted until

months later, in June 2017. Nor did the panel analyze whether

Dr. Page could have obtained relief based solely on what he

learned from the April 2017 news articles.

27 Petitioner

acknowledges that the panel’s conclusion as to

that theory is not worthy of this Court’s review. But the panel did

not reach the merits of the remaining § 1809(a)(2) claim that the

FBI unlawfully used or disclosed FISA-obtained information in

its applications seeking extensions of the original FISA-warrant.

See App.3a (only finding the § 1809(a)(2) claim “in part[]

insufficiently pleaded”).

Partially dissenting, Judge Henderson agreed

that Dr. Page’s § 1809(a)(1) surveillance claim was

untimely “for the reasons explained by the majority,”

App.48a, but dissented as to the § 1809(a)(2) claims,

App.3a, 59a-60a. She explained that it was wrong to

“dispose[] of” a “critical factual dispute with a lone

sentence from the Post article, which quotes an

anonymous Government official speaking off the

record and alleging that the FISA warrant was

renewed.” App.65a. She explained that, for the

majority to conclude that The Washington Post article

gave Dr. Page knowledge of his use-or-disclose injury,

the panel had to:

infer that Page (i) read the one line in the entire

article that discussed renewal applications,

(ii) read the FISA statute, (iii) found the precise

portion of the statute addressing applications to

the FISC and (iv) ascertained from the text’s

oblique language that the Government used

FISA-derived information in its warrant

reauthorization requests.

App.63a.

Judge Henderson found this to be “one inferential

leap too many.” App.63a. She explained that—even on

appeal—Dr. Page still could “only speculate about the

contents of the FISA renewal applications” because

the secrecy required by FISA and the PATRIOT Act

creates an “evidentiary vacuum.” App.63a-64a.

Judge Henderson continued that the evidentiary

vacuum could not have been filled by the “lone

sentence from the Post article” on which the majority

relied to dispose of Dr. Page’s claims under 50 U.S.C.

§ 1809(a)(2). App.65a. This was particularly true

because “the Government’s official organs—the White

House, the FBI and the Justice Department—all

‘declined to comment.’” App.65a. Judge Henderson

further focused on The Washington Post article’s

calling its claims “unsubstantiated” and including a

quote from the former Director of National

Intelligence expressly denying “any FISA orders to

monitor the communications of Trump * * * or his

campaign.” App.65a-66a. Judge Henderson thus

explained that she “cannot join the majority holding”

because “[a] jury—the traditional factfinders” should

“be given the opportunity to adjudicate these contested

facts” to determine whether they gave Dr. Page

knowledge of his inquiry. App.66a-67a.

For similar reasons, Judge Henderson found Dr.

Page’s PATRIOT Act claim timely. App.57a. But,

unlike the panel, Judge Henderson concluded (1) that

Dr. Page forfeited the arguments supporting the claim

and (2) even if he had preserved those arguments, the

claim “would fail on the merits.” App.57a-58a.

Dr. Page unsuccessfully sought en banc review.

App.156a.

REASONS FOR GRANTING THE PETITION

The panel held that Dr. Page’s claims accrued at

the time of the 2017 press reports, without

determining whether Dr. Page’s claims would have

survived a motion to dismiss if they relied on only the

information contained in the April 2017 news articles.

That approach is inconsistent with this Court’s

precedents, which hold that claims do not accrue until

a person can file suit and obtain relief. If applied

broadly, the rule adopted below would require

potential victims of unlawful government surveillance

to file suit once they suspect illegal surveillance to

avoid limitations defenses. But such speculative

claims are likely to be dismissed. To ensure that

victims of unlawful surveillance are not stuck between

having to file speculative claims or facing statute-oflimitations issues, the Court should grant the petition

and reverse.

The Rule Adopted Below Is Inconsistent

with This Court’s Claim-Accrual

Precedents.

The decision below applied a rule that is

inconsistent with this Court’s precedents on an

important question of federal law: when a federal

claim accrues.

1. The Court has explained that the general rule

is “that the limitations period commences when the

plaintiff has a complete and present cause of action.”

Graham Cnty. Soil & Water Conservation Dist. v.

United States ex rel. Wilson, 545 U.S. 409, 418 (2005)

(cleaned up). It has further explained that, “[u]nless

Congress has told us otherwise in the legislation at

issue, a cause of action does not become ‘complete and

present’ for limitations purposes until the plaintiff can

file suit and obtain relief.” Bay Area Laundry, 522 U.S.

at 201. The federal rule is thus simple enough to state:

“Absent other indication, a statute of limitations

begins to run at the time the plaintiff has the right to

apply to the court for relief.” TRW Inc. v. Andrews, 534

U.S. 19, 37 (2001) (Scalia, J., concurring in judgment)

(cleaned up).

This is no new principal. For more than a century,

“the uniform result of the cases decided on the statute

of limitations” was “that [a statute of limitations] does

not deprive a party of his remedy, unless he has been

guilty of the laches or default contemplated therein.”

H.G. Wood, A Treatise on the Limitation of Actions at

Law and in Equity 11 (Boston, Soule & Bugbee 1883).

Not much later, commentator John Kelly explained

that a “cause of action accrues at the time the party is

entitled to sue, demand relief, or make the entry.”

John Kelly, A Treatise on the Code Limitations of

Actions Under All State Codes 91 (1903). That a cause

accrues only when a party has been hurt was the only

“logical” rule, he explained, because “there are cases

where the breach or the wrong did not cause the

‘hurt.’” Ibid.

2. This rule also implicates a related set of

precedents which make clear that a person cannot

apply to the Court for relief based only on speculation.

While “the pleading standard * * * does not require

detailed factual allegations, * * * it demands more

than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (cleaned up). The prohibition on such

accusations means that “a formulaic recitation of the

elements of a cause of action” and “naked assertions

devoid of further factual enhancement” “will not do.”

Ibid. (cleaned up). In other words, as this Court

clarified just last term, when allegations in a

complaint are “all speculation,” “it is not enough” to

survive “a motion to dismiss.” Smith & Wesson

Brands, Inc. v. Estados Unidos Mexicanos, 605 U.S.

280, 296 (2025); accord Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007) (“Factual allegations must be

enough to raise a right to relief above the speculative

level.”).

Applying this standard in the context of this

Court’s accrual precedents confirms that claims based

only on speculation that would not survive a motion to

dismiss have not accrued because a plaintiff cannot

“file suit and obtain relief.” Bay Area Laundry, 522

U.S. at 201.

3. Here, the panel below applied a different rule.

Its rule, established before this Court decided Bay

Area Laundry, provides that “a cause of action accrues

and the limitations period begins to run only when ‘the

plaintiff discovers, or with due diligence should have

discovered, the injury that is the basis of the action.’”

App.18a (quoting Sprint Commc’ns Co. v. FCC, 76

F.3d 1221, 1226 (D.C. Cir. 1996)). Under that rule,

“accrual is not delayed just because the plaintiff does

not yet have ‘access to or constructive knowledge of all

the facts required to support [a] claim.’” App.18a-19a

(quoting Sprint Commc’ns, 76 F.3d at 1228). And

because Dr. Page did not need to even have

constructive knowledge to all the facts under that rule,

the panel concluded that it was not requiring him to

file speculative claims because he had “both read the

Post and Times articles and knew he was the subject

of alleged illegal government surveillance.” App.24a.

Rather, because Dr. Page decried the surveillance

described in those articles as “unjustified” and

“politically motivated,” App.19a, the panel concluded

that Dr. Page’s “lack of access to the affidavits” did not

matter; “Page knew all the essential facts on which he

relies in support of his FISA claims[.]” App.20a.

This was wrong. As this Court has plainly

acknowledged, “individuals affected by FISA

surveillance are very often unaware of the

surveillance unless it is revealed by the Government.”

Fazaga, 595 U.S. at 356 (emphasis added). And here,

surveillance alone is not even an injury under FISA or

the PATRIOT Act. Indeed, Dr. Page’s knowledge that

he was not a Russian agent—and thus that any

investigation into him was “unjustified”—said nothing

about whether the FBI had probable cause to believe

he was a Russian agent—the relevant standard under

FISA and the critical question for determining

whether Dr. Page had even been injured. 50 U.S.C.

§ 1809; see also id. §§ 1804(a), 1805(a). Thus if

“discovery of the injury” is the relevant question for

accrual, Rotella, 528 U.S. at 555, Dr. Page would have

had to know from the news articles that respondents

lacked probable cause to surveil him and thus

“injured” him by doing so anyway.

But the news articles don’t say as much. See

JA095-JA100. Nor could they have. This Court has

explained

that

“innocent

explanations—even

uncontradicted ones—do not have any automatic,

probable-cause-vitiating effect.” District of Columbia

v. Wesby, 583 U.S. 48, 68 (2018). That means Dr.

Page’s knowledge of his own innocence would have

been a non sequitur had he tried to establish that the

FBI surveilled him without probable cause before the

OIG Report.

For similar reasons, Dr. Page would not have been

able to allege that the FBI lacked probable cause in its

warrant applications by pointing to his being an

operational contact for the CIA. Dr. Page did not

know—and could not have known before the OIG

Report—(1) that the FBI knew that Dr. Page was an

operational contact at the time of the first FISA

application, and (2) that the FBI had excluded that

information from its applications. That information

came out for the first time in the OIG Report. 28

Nor, before the OIG Report, could Dr. Page have

claimed that the CIA had likely shared information

with the FBI about Dr. Page’s status as an operational

contact. As this Court has recognized, “[a]gencies often

have hundreds of employees, dozens of offices, and

several levels of leadership.” Gabelli, 568 U.S. at 452.

For Dr. Page to have asserted any non-speculative

allegation about his relationship with the CIA, he

would have had to know who at the FBI knew what—

and when. Worse, even when “[d]ifferent agencies

often have overlapping responsibilities,” it is an open

question whether “the knowledge of one [is] attributed

to all[.]” Ibid. Dr. Page would thus have had to allege—

without anything to support that allegation—that the

FBI knew about his relationship with the CIA before

he could even allege that the relationship vitiated

28 See OIG Rep. at viii.

probable cause. None of these allegations would rise to

a level necessary to survive a motion to dismiss.

The panel was also wrong to point to Dr. Page’s

April 2017 belief that the investigation into him was

“politically motivated.” App.21a. Just as “probable

cause should generally defeat a retaliatory arrest

claim,” Nieves v. Bartlett, 587 U.S. 391, 406 (2019),

retaliatory—or, to use Dr. Page’s language, “politically

motivated” investigations can still be supported by

probable cause. Cf. Henry v. United States, 361 U.S.

98, 102 (1959) (“If the officer acts with probable cause,

he is protected even though it turns out that the

citizen is innocent.”). Dr. Page’s suspicion that any

surveillance was politically motivated was therefore

irrelevant to Dr. Page’s eventual claims too.

In short, Dr. Page’s belief that the surveillance

reported in the news articles was “unjustified” and

“politically motivated” was just that—a belief. It did

not show that he had discovered the relevant injuries:

(1) surveillance without probable cause and (2) the

illegal use of any surveillance-obtained information.

The panel was wrong to hold that his claims accrued.

4. Had the panel applied the proper rule that a

claim accrues only when a plaintiff knows enough to

file a claim sufficient to obtain relief, it would have

found Dr. Page’s claims timely because he brought

those claims as soon as he knew enough about his

injury to survive a motion to dismiss.

This conclusion flows from the fact that Dr. Page

did not even know and could not have learned that he

had been injured before the OIG Report. Unlike

traditional judicial activities, FISC typically acts “on

an in camera, ex parte basis”: “Disclosure and an

adversary hearing are the exception, occurring only

when necessary.” United States v. Belfield, 692 F.2d

141, 147, 149 (D.C. Cir. 1982). As Justice Gorsuch

recently recognized, “FISC holds its proceedings in

secret and does not customarily publish its decisions.”

ACLU v. United States, 142 S. Ct. 22, 23 (2021)

(Gorsuch, J., dissenting from the denial of certiorari).

Its decisions are publicized only after “the Director of

National Intelligence, in consultation with the

Attorney General” conducts a declassification review.

50 U.S.C. § 1872(a).

FISA information is so secret, moreover, that even

now, years after Dr. Page allegedly had sufficient

notice to challenge respondents’ surveillance and their

subsequent use and disclosure of the information

obtained from that surveillance, the government itself

is still required to turn to the Foreign Intelligence

Surveillance Court to use it. Just a month after the

D.C. Circuit held that Dr. Page’s claims were

“conclusively time-barred,” App.3a, FISC granted a

government motion seeking the “internal sharing of

Page FISA information with FBI and DOJ personnel

who previously did not have access.” 29 If a court order

is necessary before “OIG, FBI and other DOJ

personnel” can even review the “Page FISA

information,” 30 even after the OIG Report, there is no

way Dr. Page had enough information about the

29 Order at 4-6, In re Carter W. Page, A U.S. Person, Nos. 16-

1182, 17-52, 17-375, 17-679

https://perma.cc/69PV-LCYM.

30 Id. at 6.

(F.I.S.C.

June

17,

2025),

surveillance and the use or disclosure of that

information to survive a motion to dismiss in April

2017, years before the OIG had even begun its

investigation.

Nor could Dr. Page have learned about the

surveillance and use or disclosure of his information

by other means. True, he could have asked the

government directly if the information in The

Washington Post article was correct. But the

government had already declined to comment to the

press. App.65a. And (here again) the government

could not have disclosed anything about the

investigation to Dr. Page given the secrecy of FISC

proceedings.

Dr. Page also could not have learned information

through a Freedom of Information Act request. Other

attempts to obtain “records about the unmasking of

members of President Trump’s campaign and

transition team” were met not only with denials, but

with refusals to search for or acknowledge “even the

existence or nonexistence of such records.” Schaerr v.

United States Dep’t of Just., 69 F.4th 924, 926 (D.C.

Cir. 2023). Any attempt by Dr. Page to obtain records

of his being surveilled would surely have met the same

legal barriers.

Efforts to obtain discovery to support his claims

would also have likely been fruitless if he challenged

the surveillance in federal court based solely on the

information in the April 2017 news articles as the

panel held he needed to do. See App.3a. Had Dr. Page

sued before the government acknowledged the

surveillance for the first time in the OIG report,

respondents would likely have done what they have

done in other cases asserting FISA claims: Assert “the

state secrets privilege” and move to dismiss before

giving Dr. Page any information to support his facially

speculative claims. See Fazaga, 595 U.S. at 351-352.

In short, contrary to the panel’s conclusion that

Dr. Page had more than a hunch, App.24a, the news

articles at most made Dr. Page suspicious that (1) he

was surveilled; (2) the surveillance was illegal; and

(3) the government then illegally used or disclosed

information obtained in that surveillance. Dr. Page’s

claims thus could not accrue based on the news

articles. They did not give him enough information

about his legal injury to turn to the district court,

survive a motion to dismiss, and obtain relief, and he

could not obtain that required information through

any other means.

The panel thus departed from this Court’s

precedents on what is required before a claim accrues:

the ability to bring a suit and obtain relief. This

Court’s review is necessary to ensure that the panel’s

departure does not block claims of other victims of

unlawful surveillance who might suspect—but cannot

know even through diligent efforts—that they have

been injured.

II. The Question Presented Is Exceptionally

Important.

For victims of unlawful government surveillance,

the stakes of getting the accrual question wrong are

enormous. All agree that Congress enacted 50 U.S.C.

§ 1810 to impose “civil liability for individuals who

violate Section 1809 by engaging in unauthorized

surveillance and/or disclosing/using the information so

obtained,” App.17a, and 18 U.S.C. § 2712 to allow

actions brought against the United States for the

unlawful use or disclosure of FISA-derived

information, App.55a (Henderson, J., partially

dissenting) (discussing 18 U.S.C. § 2712). Everyone

involved needs clear rules. For a plaintiff to vindicate

these statutory rights, they need to know when to file

suit. Government officials who conduct such

surveillance need to be put on notice that their actions

may lead to liability within a certain time. And, of

course, courts must have a clear rule for determining

the timeliness of claims challenging secret

government surveillance.

The question presented is thus of great practical

importance. If this Court allows the decision below to

stand, targets of unlawful surveillance will often be

forced to challenge that surveillance and any resulting

misuse of information obtained through it on the

barest of mere suspicions, knowing that speculation is

not enough to survive a motion to dismiss. See Smith

& Wesson, 605 U.S. at 296. Many victims of such

surveillance—and certainly their attorneys—will be

unwilling to do so, fearing that filing a civil suit will

result in an inevitable motion to dismiss or (worse)

sanctions.

The D.C. Circuit’s rule will also engender both

significant uncertainty and protracted litigation. As

Justice Scalia wrote, “any period of limitation is

utterly meaningless without specification of the event

that starts it running.” Klehr v. A.O. Smith Corp., 521

U.S. 179, 199 (1997) (Scalia, J., concurring in part and

concurring in the judgment). Under the rule adopted

below, when the statute of limitations begins to run for

surveillance-related claims is an open question

because there is no need to even consider the point at

which a person could finally “file suit and obtain

relief.” Bay Area Laundry, 522 U.S. at 201. As

discussed above, general suspicions about an injury

are unlikely to give a victim of surveillance enough

information to survive a motion to dismiss, but the

decision below nonetheless requires the filing of a

speculative complaint.

In short, this Court’s guidance is necessary for

surveillance victims, government officials, and courts

alike to resolve when claims challenging government

surveillance accrue.

III. This Case Cleanly Presents the Question

Presented.

Granting the petition would also give this Court a

clean vehicle to resolve the exceptionally important

question about when a cause of action challenging

secret surveillance accrues.

The procedural posture is ideal. As this Court has

recognized, in cases like this one that “come[] to [it] at

the motion-to-dismiss stage, the Court assumes the

truth of ‘well-pleaded factual allegations’ and

‘reasonable inference[s]’ therefrom.” National Rifle

Ass’n of Am. v. Vullo, 602 U.S. 175, 181 (2024) (quoting

Iqbal, 556 U.S. at 678-679). The Court can thus

answer the legal question presented by the petition

with no factual disputes: What the complaint alleges

is, for now, what happened.

Nor is there any question that the panel’s

resolution of the question presented was outcome

determinative as to the § 1809(a)(1) surveillance

claims, the § 1809(a)(2) use/disclosure claims, and the

PATRIOT Act claim.

Moreover, although the D.C. Circuit spent some

time considering the appropriate statute of limitations

for each claim, e.g., App.17a-18a, 28a-29a, the answer

to those questions has no bearing on whether Dr.

Page’s claim accrued based on the April 2017 news

articles and Dr. Page’s resulting suspicion that he was

being unlawfully surveilled. Whatever the correct

statute of limitations for FISA and PATRIOT Act

claims, if Dr. Page’s claims did not accrue until the

OIG Report gave Dr. Page enough information to

survive a motion to dismiss, all Dr. Page’s claims are

timely.

Finally, the Court will not need to decide whether

a discovery rule applies to claims under FISA and the

PATRIOT Act. As Judge Henderson recognized, “no

party * * * challenged the applicability of the discovery

rule,” and the panel applied it. App.48a (Henderson,

J., concurring in part and dissenting in part). 31

This case thus cleanly presents a controlling legal

issue: If the discovery rule applies, when do claims

challenging surveillance accrue? If this Court were to

grant review and conclude that claims challenging

unlawful government surveillance and the unlawful

use or disclosure of the fruits of that surveillance do

not accrue based on mere suspicion when inquiry into

31 The PATRIOT Act’s text, however, does support a discovery

rule because it provides that accrual occurs “on the date upon

which the claimant first has a reasonable opportunity to discover

the violation.” 18 U.S.C. § 2712(b)(2) (App.255a).

those suspicions would not return the information

needed to bring a claim and obtain relief, then that

conclusion will revive the case. The D.C. Circuit, on

remand, will then be able to resolve on the merits any

questions about the adequacy of Dr. Page’s

allegations. 32

CONCLUSION

Dr. Page’s suspicions that he was the target of a

secret investigation were not enough to trigger the

statute of limitations for his claims. In holding that

those suspicions were sufficient, and sufficient as a

matter of law, the D.C. Circuit denied him a judicial

forum and set a rule that all but guarantees that a

person surveilled by the government faces the

expiration of the relevant limitations period before he

has enough information to survive a motion to dismiss.

That decision was wrong, and this Court should grant

the petition to clarify—either on plenary review or

through summary reversal—that federal claims

alleging illegal surveillance do not accrue based only

on a plaintiff’s uninvestigable suspicions of

wrongdoing.

32 Resolving

the question presented in Dr. Page’s favor, of

course, would not revive Dr. Page’s § 1809(a)(2) use-or-disclosure

claim as it relates to the media-leak allegation against

respondents Page and Strzok, which the panel already concluded

was insufficiently pleaded. See App.24a-26a.

Respectfully submitted,

GENE C. SCHAERR

Counsel of Record

ERIK S. JAFFE

BRIAN J. FIELD

HANNAH C. SMITH

JOSHUA J. PRINCE

SCHAERR | JAFFE LLP

1717 K Street NW

Suite 900

Washington, DC 20006

(202) 787-1060

gschaerr@schaerr-jaffe.com

Counsel for Petitioner

December 11, 2025

APPENDIX

TABLE OF APPENDICES

APPENDIX A:

Opinion, Page v. Comey,

No. 23-5038 (D.C. Cir.), May 23, 2025 ................... 1a

APPENDIX B:

Memorandum Opinion,

Page v. Comey, No. 1:20-cv-03460-DLF

(D.D.C.), Jan. 18, 2023, Doc. 127 ......................... 75a

APPENDIX C:

Memorandum Opinion,

Page v. Comey, No. 1:20-cv-03460-DLF

(D.D.C.), Sep. 1, 2022, Doc. 115 ........................... 87a

APPENDIX D:

Order, Page v. Comey,

No. 23-5038 (D.C. Cir.), July 14, 2025 ............... 156a

APPENDIX E:

Second Amended Complaint,

Page v. Comey, No. 1:20-cv-03460-DLF

(D.D.C.), June 8, 2021, Doc. 73 .......................... 158a

APPENDIX F:

Federal Rule of Civil Procedure,

Rule 12(b)............................................................ 244a

APPENDIX G:

Foreign Intelligence Surveillance Act

[excerpted], 50 U.S.C. §§ 1806, 1809, 1810 ........ 245a

APPENDIX H:

18 U.S.C. § 2712 .................................................. 254a

Appendix A

USCA Case #23-5038 Document #2117198

Filed: 05/23/2025

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 6, 2024

Decided May 23, 2025

No. 23-5038

CARTER PAGE,

APPELLANT

JAMES B. COMEY, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:20-cv-03460)

Gene C. Schaerr argued the cause for appellant.

With him on the briefs were Erik S. Jaffe and Brian J.

Field.

David N. Kelley argued the cause for individual

appellees. With him on the brief were Meaghan

VerGow, Andrew R. Hellman, Meredith N. Garagiola,

Daniel Brovman, Brigida Benitez, Patrick F. Linehan,

Brian M. Heberlig, Robert J. Katerberg, Kaitlin

Konkel, Christopher C. Muha, Aitan D. Goelman,

Ivano M. Ventresca, Joseph R. Palmore, James M.

Koukios, and Alexandra M. Avvocato.

Benjamin M. Shultz, Attorney, U.S. Department

of Justice, argued the cause for government appellees.

With him on the brief were Brian M. Boynton,

Principal Deputy Assistant Attorney General, at the

time the brief was filed, and Sharon Swingle,

Attorney.

Before: HENDERSON,

Circuit Judges.

PILLARD, and

CHILDS,

Opinion for the court filed by Circuit Judge

CHILDS.

Opinion concurring in part and dissenting in part

filed by Circuit Judge HENDERSON.

CHILDS, Circuit Judge: Carter W. Page appeals

the district court’s dismissal of his second amended

complaint for failure to state a claim. Page v. Comey,

628 F. Supp. 3d 103 (D.D.C. 2022). Page filed an

action against the United States, the Department of

Justice (DOJ), the Federal Bureau of Investigation

(FBI), as well as current and former known and

unknown FBI officials (individual defendants 1)

(collectively Appellees), alleging that the FBI

unlawfully obtained four warrants to electronically

surveil him pursuant to the Foreign Intelligence

Surveillance Act (FISA), 50 U.S.C. §§ 1801–1885c,

and that Appellees leaked to the press information

obtained pursuant to those warrants, giving rise to

liability under FISA and the Patriot Act. Page alleged

1 In the second amended complaint, Page identified as individual

defendants James Comey, Andrew McCabe, Kevin Clinesmith,

Peter Strzok, Lisa Page, Joe Pientka III, Stephen Somma, Brian

J. Auten, John Does 1–10, and Jane Does 1–10.

that as the result of the public revelation of this

unlawful surveillance he suffered reputational

harm, pain and suffering, and lost lucrative

business opportunities. Ultimately, the district court

dismissed Page’s claims, finding them either timebarred or insufficiently pleaded.

For the reasons below, we are unanimous in

affirming dismissal of Page’s claims of unlawful

surveillance under FISA (see 50 U.S.C. § 1809(a)(1)) on

the ground that they are conclusively time-barred. We

also unanimously affirm the dismissal of the Patriot

Act claim against the United States, with the majority

concluding that claim, too, is time-barred and the

partial dissent resting instead on Page’s failure to

preserve the claim and its legal insufficiency in any

event. Finally, the majority concludes that Page’s

claim of unlawful disclosure or use of the results of

unlawful surveillance under FISA (see 50 U.S.C.

§ 1809(a)(2)) is also time-barred and, in part,

insufficiently pleaded.

Judge Henderson dissents only insofar as she

would have allowed Page’s section 1809(a)(2)

disclosure-or-use claim to proceed. She parses that

claim into distinct strands. She would hold, first, that

the claim that certain defendants used FISA-derived

information to apply for ensuing warrant applications

should not be dismissed as time-barred without first

allowing discovery into whether, once Page knew he

was subject to FISA warrants, he knew or reasonably

should have inquired into FISA’s warrant-renewal

requirements. On its merits, she explained, that claim

was plausibly pleaded. Second, Judge Henderson

analyzes Page’s media-leak theory as two distinct

claims. The first, that media leaks by defendants Lisa

Page and Peter Strzok led to publication of the fact

that Carter Page was under FISA surveillance, she

would dismiss for failure to state an unlawful-

disclosure claim because Page’s identity and the fact

of surveillance were not themselves information

“obtained by” FISA surveillance. As to the second,

Judge Henderson reads the complaint to support a

reasonable inference that those two leakers also

disclosed FISA-acquired information that the

newspapers decided not to mention. She therefore

discerns an unlawful-disclosure claim against the pair

that she would deem timely.

In this appeal from an order granting a motion to

dismiss for failure to state a claim under Federal Rule

of Civil Procedure 12(b)(6), the relevant facts are those

“alleged in the complaint, any documents either

attached to or incorporated in the complaint and

matters of which [the court] may take judicial notice.”

Hurd v. District of Columbia, Gov’t, 864 F.3d 671, 678

(D.C. Cir. 2017) (quoting EEOC v. St. Francis Xavier

Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997)).

Unless otherwise noted, the following background is

derived from Page’s second amended complaint.

“During the 2016 U.S. Presidential election,”

Page volunteered as a “member of an informal foreign

policy advisory committee to then-candidate Donald J.

Trump’s election campaign.” 2d Am. Compl. ¶ 21

(JA027). Page alleged that on July 31, 2016, he became

the target of an FBI surveillance program called

Operation Crossfire Hurricane. The purpose of

Crossfire Hurricane was “to determine whether

‘individual(s) associated with the Trump campaign

[we]re witting of and/or coordinating activities with

the Government of Russia.’” Id. ¶ 5 (JA022).

In August 2016, the Central Intelligence Agency

(CIA) informed members of the Crossfire Hurricane

team that Page had been a CIA “operational contact”

from 2008 to 2013, assisting in countering Russian

and other foreign intelligence activity. Id. ¶ 11

(JA023). Several weeks later, the CIA sent an

investigative referral to FBI Director James Comey

(Comey) and Deputy Assistant Director of

Counterintelligence Peter Strzok (Strzok) conveying

that presidential candidate “Hillary Clinton had

approved a plan concerning U.S. Presidential

candidate Donald Trump and Russian hackers

hampering U.S. elections as a means of distracting the

public from her use of a private mail server.” Id. ¶¶ 12,

167 (JA024, JA054–JA055). A few weeks later, on

September 19, 2016, the FBI received information

from Christopher Steele, a Confidential Human

Source, that “falsely alleged unlawful communications

and activities involving . . . Page and two Russians

with close ties to Russian President Vladimir Putin.”

Id. ¶¶ 9, 14 (JA023–JA024). However, the CIA had

identified this information from Steele as possibly

containing false allegations. In addition, the FBI

became aware of several other facts that raised

questions regarding Steele’s credibility, including:

(1) that the Democratic Party and/or the Clinton

campaign supposedly paid Steele to perform “political

opposition research,” and (2) that the CIA had

reportedly warned the FBI of a “potential political

scheme” involving a disinformation effort to report a

connection between the Trump campaign and Russia.

Id. ¶¶ 9, 15, (JA023, JA025). Steele eventually

provided similar information to public news media

regarding the investigation.

On September 23, 2016, Michael Isikoff published

an article in Yahoo! News titled “U.S. intel officials

probe ties between Trump adviser and Kremlin.”

Michael Isikoff, U.S. intel officials probe ties between

Trump adviser and Kremlin, Yahoo! News (Sept. 23,

2016), https://perma.cc/T2GE-M22D. The article

stated that in July 2016, Page “[spoke] at a

commencement address for the New Economic School,

an institution funded in part by major Russian

oligarchs close to Putin.” Id. Additionally, the article

stated that “U.S. intelligence agencies ha[d] also

received reports that Page met with another top Putin

aide while in Moscow—Igor Diveykin.” Id. “In

response to [this] article, on September 25, 2016, . . .

Page sent a letter to . . . Comey in which he

categorically denied that he had any such

communications with the Russian individuals and

documented his previous cooperation with the CIA

and the FBI to combat Russian spying.” 2d Am. Compl.

¶¶ 15, 81 (JA025, JA039). Upon the receipt and

sharing of Page’s letter with the Crossfire Hurricane

team the following day, Strzok wrote to FBI lawyer

Lisa Page that “[a]t a minimum, the letter provides

[the team] a pretext to interview” Page. Id. ¶ 147

(JA051).

On October 21, 2016, the FBI submitted its first

FISA warrant application to the Foreign Intelligence

Surveillance Court (FISC), relying on the Yahoo! News

article and other allegedly false and misleading

information. Under 50 U.S.C. § 1805(a)(2)(A), the

FISC has authority to issue orders for electronic

surveillance when presented with evidence that there

is probable cause to believe that a target is an “agent

of a foreign power.”

After a second FISA warrant application had been

submitted on January 12, 2017, two FBI agents—one

of whom was individual defendant Stephen Somma—

conducted an “ambush interview” of Page, followed by

four additional interviews in March 2017. 2d Am.

Compl. ¶¶ 122, 210 (JA047, JA063). In total, the five

interviews lasted roughly ten hours. Page opines that

he “was candid and cooperative with the agents, and

his answers undermined any contention that he was

acting as an agent of a foreign power.” Id. ¶¶ 122, 210

(JA047, JA063). On April 7, 2017, the FBI submitted

a third FISA warrant application to continue its

surveillance of Page.

A few days later, on April 10, 2017, Strzok

purportedly texted Lisa Page to devise a plan to leak

information

about

the

Crossfire

Hurricane

investigation to the news media. The following day,

the Washington Post published a story entitled, “FBI

obtained FISA warrant to monitor former Trump

adviser Carter Page.” JA095–JA100; see also 2d Am.

Compl. ¶ 221 (JA068). The article, which reported on

information provided by “law enforcement and other

U.S. officials” who “were not authorized to discuss

details of a counterintelligence probe,” stated that

“[t]he FBI and the Justice Department obtained [a]

warrant targeting Carter Page’s communications after

convincing a Foreign Intelligence Surveillance Court

judge that there was probable cause to believe Page

was acting as an agent of a foreign power, in this case

Russia.” JA095; 2d Am. Compl. ¶ 221(a) (JA068).

The Washington Post story quoted Page as saying

that “[t]his confirms all of my suspicions about

unjustified,

politically

motivated

government

surveillance” and that “[he] ha[s] nothing to hide.”

JA096. According to the Post, Page “compared

surveillance of him to the eavesdropping that the FBI

and Justice Department conducted against civil rights

leader Martin Luther King Jr.” Id. Page “dismissed

what he called ‘the dodgy [Steele] dossier’ of false

allegations” and maintained that he wanted to testify

before Congress to clear his name, JA98, because any

information he provided to the Russians was

“innocuous,” i.e., “basic immaterial information and

publicly available research documents.” JA100. Page

also stated in his defense that he had assisted the

government in an earlier espionage case against a

Russian national.

Ten days later, on April 22, 2017, the New York

Times published an article entitled “Comey Tried to

Shield the F.B.I. From Politics. Then He Shaped an

Election.” Matt Apuzzo, Michael S. Schmidt, Adam

Goldman, and Eric Lichtblau, Comey Tried to Shield

the F.B.I. From Politics. Then He Shaped an Election,

N.Y. TIMES (Apr. 22, 2017), https://perma.cc/YC6AUGBY. The New York Times article focused on the

investigation of Hillary Clinton’s emails. The article

mentioned Page, stating that he “gave a speech in

Moscow criticizing American foreign policy” and that

he “had previously been under F.B.I. scrutiny years

earlier, as he was believed to have been marked for

recruitment by Russian spies.” 2d Am. Compl. ¶ 224(a)

(JA069). This was the Times article’s only explicit

reference to Page.

On April 27, 2017, Page was interviewed by

former CNN news anchor Chris Cuomo, wherein Page

acknowledged having read both the Washington Post

and the New York Times articles. Page v. Comey, Case

No. 1:20-cv-03460, ECF No. 88-10, at 9 (D.D.C. Sept.

17, 2021). In response to questioning regarding

whether the FBI had probable cause to surveil him,

Page expressed his eagerness to obtain full disclosure

about the warrant applications because “there [had]

been terrific reporting in various news outlets,

including ‘[the] Washington Post’, [and] ‘[the] New

York Times’ based on various leaks and some of them

have exactly pointed back to that dodgy dossier.” Id.

Approximately a month later, on May 22, 2017,

Page again acknowledged and explicitly cited to the

Washington Post article in a letter to Congressmen K.

Michael Conaway and Adam Schiff, responding to a

request to voluntarily appear before the United States

House of Representatives Permanent Select

Committee on Intelligence (House Intelligence

Committee). 2 In the letter, Page stated that the

Clinton campaign had engaged in illegal activities and

leaks, and he could “help set the record straight . . .

following the false evidence, other illegal activities as

well as additional extensive lies distributed by the

Clinton campaign and their transnational associates.”

JA101. Page referenced the “unfortunate front-page

Washington Post article about the civil rights abuses

committed against me which you might have seen:

‘Applications for FISA warrants’ . . . filled with a

2 The Joint Appendix only contains three pages from Carter’s

twenty-three-page submission.

10a

potpourri of falsehoods from the Clinton/Obama

regime which fabricated this travesty from the outset.”

JA102.

Page’s letter welcomed the invitation to testify

before the House Intelligence Committee on the “civil

rights injustices” against him. He informed the

Committee that public access to the FISA warrants in

advance of his testimony would be “essential” to dispel

“the continued delusional charade regarding Russia’s

connections with the new Administration.” JA102–

JA103. Page contrasted the “proper legal procedures

of disclosure currently underway” with the “recent

misleading illegal leaks,” plainly referring to the

government leaks reported in the Washington Post

article. JA 101. Thereafter, on June 29, 2017, the FBI

submitted the fourth and final FISA warrant

application.

On November 2, 2017, Page testified before the

House Intelligence Committee. Page stated that he

was a victim of two felonies: the leaking of both his

identity and classified information in relation to the

FISA warrant documented in the Washington Post

article. Testimony of Carter Page: Hearing Before the

Permanent Select Comm. on Intelligence, 115th Cong.

(2017) (Page Testimony), https://perma.cc/74C9-RWZ9

at 16–17, 21–22. During his testimony, Page

referenced the surveillance activities taken against

him by the FBI. In his opening statement, Page stated

that “the alleged U.S. cyber operations of wiretap

against myself . . . marked a new low with this

baseless domestic interference in our democracy prior

to the 2016 election.” Id. at 35. Page further observed

that although neither he nor the Committee “kn[e]w

11a

the details about how [he] was illegally hacked and

wiretapped,” they should “soon” learn the information

because of his and the Committee’s requests for

information. Id. During questioning by Congressman

Gowdy, Page again referenced the Washington Post

article, stating that someone leaked his interviews

with the FBI to the Post. Id. at 59. Page’s

congressional testimony also incorporated his May 22,

2017 letter in which he observed that “[b]ased on

revelations in the press thus far, [he] was the primary

known person allegedly put under the most intensive

surveillance by the Obama Administration as part of

their 2016 domestic political intelligence operation.”

Id. at 15.

In March 2018, the DOJ’s Office of Inspector

General (OIG) initiated a review of the FBI’s

surveillance of Page. The OIG published a report on

December 9, 2019, in which it observed that the FBI’s

factual misstatements and omissions regarding Page

“taken together resulted in FISA applications that

made it appear that the information supporting

probable cause was stronger than was actually the

case.” OIG, Review of Four FISA Applications and

Other Aspects of the FBI’s Crossfire Hurricane

Investigation (Dec. 2019), https://perma.cc/8TGEVGTK at xiii.

On November 27, 2020, Page filed a complaint in

the United States District Court for the District of

Columbia, alleging eight causes of action, including

four claims of FISA violations against the individual

defendants; one claim against individual defendants

12a

seeking damages under Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403 U.S.

388 (1971); one claim against the United States under

the Federal Tort Claims Act (FTCA), 28 U.S.C.

§§ 2671–2680; one claim against the DOJ for violating

the Privacy Act, 5 U.S.C. § 552a; and one claim against

both the FBI and DOJ for violating the Privacy Act.

Page amended his complaint on April 15, 2021, but did

not make any substantive changes to his allegations.

After attempting to comply with mandatory

prerequisites, 3 Page filed a second amended complaint

on June 8, 2021, adding a claim against the United

States for a violation of the Uniting and Strengthening

America by Providing Appropriate Tools Required to

Intercept and Obstruct Terrorism Act of 2001 (Patriot

Act), 18 U.S.C. § 2712.

On September 17, 2021, each of the individual

defendants separately moved to dismiss Page’s FISA

and Bivens claims. That same day, the United States,

the FBI, and the DOJ moved to dismiss the FTCA,

Privacy Act, and Patriot Act claims.

In the district court, Appellees sought to dismiss

Page’s second amended complaint on the grounds that

his claims were time-barred by the statute of

limitations and that he failed to state a claim upon

which relief may be granted. Page, 628 F. Supp. 3d at

115. The United States also moved to dismiss Page’s

3 Seeking to exhaust his administrative remedies under the

Patriot Act pursuant to 18 U.S.C. § 2712(b)(1), Page presented an

administrative claim to the DOJ on September 30, 2020, which it

denied on April 22, 2021.

13a

FTCA claim and one of his Privacy Act claims on the

basis that the district court lacked jurisdiction over

them. Id. In addressing whether Page’s FISA claims

were time-barred, the district court found that a threeyear general statute of limitations under D.C. law was

applicable due to FISA’s silence on the issue. Id. at

116–17. Notwithstanding its finding that “by April 11,

2017, Page knew that he was subject to surveillance

by the FBI and DOJ,” id. at 118, the district court held

that in the context of the discovery rule, “it is far from

clear that a diligent investigation would have revealed

enough evidence of illegality to avoid filing suit on a

hunch.” Id. at 119 (internal quotation marks and

brackets omitted).

For the same reasons, the district court declined

to dismiss Page’s Bivens and Patriot Act claims on

statute of limitations grounds. Id. at 129, 134. Instead,

the district court disposed of Page’s FISA and Patriot

Act claims on the basis that Page failed to plead

sufficient facts to state a plausible claim for relief. Id.

at 129, 134. The district court dismissed Page’s Bivens

claim holding that “an extension of the Bivens remedy

to this new context is unwarranted.” Id. at 129

(internal quotation marks omitted). As to Page’s

Privacy Act claims, the district court found that Page

“has neither exhausted his administrative remedies

nor filed a timely claim.” Id. at 140. The district court

dismissed Page’s remaining Patriot Act and abuse of

process claims on the grounds that he failed to state a

claim under the Patriot Act and that his abuse of

process claim “is not cognizable under D.C. law.” Id.

Page timely appealed dismissal of his FISA claims

and his Patriot Act claim.

14a

II.

We have appellate jurisdiction pursuant to 28

U.S.C. § 1291. “We review the district court’s

dismissal de novo and may affirm its judgment on any

basis supported by the record.” Elec. Priv. Info. Ctr. v.

IRS, 910 F.3d 1232, 1236 (D.C. Cir. 2018) (citation

omitted). On de novo review, we generally take as true

all plausibly pleaded factual allegations and draw all

reasonable inferences in the plaintiff’s favor. See, e.g.,

Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir.

2012).

III.

Appellees contend that Page did not timely file his

claims in accordance with the applicable statutes of

limitation. Upon its review, the district court

determined that “the complaint does not conclusively

show that Page was sufficiently on notice of his claims

before November 27, 2017.” Page, 628 F. Supp. 3d at

119. On de novo review, we hold that Page’s second

amended complaint on its face is conclusively timebarred.

“Limitations periods are intended to put

defendants on notice of adverse claims and to prevent

plaintiffs from sleeping on their rights.” Crown, Cork

& Seal Co., Inc. v. Parker, 462 U.S. 345, 352 (1983).

Accordingly, statutes of limitations “afford[] plaintiffs

what the legislature deems a reasonable time to

present their claims [while simultaneously]

protect[ing] defendants and the courts from having to

deal with cases in which the search for truth may be

seriously impaired by the loss of evidence, . . . fading

15a

memories, disappearance of documents, or otherwise.”

United States v. Kubrick, 444 U.S. 111, 117 (1979)

(citations omitted).

At the motion to dismiss stage under Rule 12(b)(6)

of the Federal Rules of Civil Procedure, “dismissal is

appropriate on statute of limitations grounds ‘only if

the complaint on its face is conclusively time-barred.’”

Commonwealth Land Title Ins. Co. v. KCI Techs., Inc.,

922 F.3d 459, 464 (D.C. Cir. 2019) (citation omitted).

This face-of-the-complaint principle, although rarely

explained, limits a court’s consideration to materials

properly before it. In this Circuit, a “court may

consider the facts alleged in the complaint, [and]

documents attached thereto or incorporated therein,

. . . .” Stewart v. Nat’l Educ. Ass’n, 471 F.3d 169, 173

(D.C. Cir. 2006). The incorporation-by-reference

doctrine “permits courts to consider documents not

attached to a complaint if they are ‘referred to in the

complaint and integral to the plaintiff’s claim.’” Real

World Media LLC v. Daily Caller, Inc., No. CV 231654, 2024 WL 3835351, at *3 (D.D.C. Aug. 14, 2024)

(quoting Banneker Ventures, LLC v. Graham, 798 F.3d

1119, 1133 (D.C. Cir. 2015) (cleaned up)). Additionally,

a court may consider those portions of “documents

upon which the plaintiff’s complaint necessarily relies

even if the document is produced not by the plaintiff

in the complaint but by the defendant in a motion to

dismiss.” Terveer v. Billington, 34 F. Supp. 3d 100, 110

(D.D.C. 2014) (quoting Ward v. D.C. Dep’t of Youth

Rehab. Servs., 768 F. Supp. 2d 117 (D.D.C. 2011)).

A court may also consider “matters of which it

may take judicial notice,” Stewart, 471 F.3d at 173,

because that information “is not subject to reasonable

16a

dispute,” Fed. R. Evid. 201(b). Courts have

acknowledged the appropriateness of taking judicial

notice of the public availability of newspaper articles

and the existence of specified congressional testimony.

E.g., Washington Post v. Robinson, 935 F.2d 282, 291

(D.C. Cir. 1991) (“This court may take judicial notice

of the existence of newspaper articles in the

Washington, D.C., area . . . .”); Muller-Paisner v.

TIAA, 289 F. App’x 461, 466 n.5 (2d Cir. 2008)

(“[C]ongressional testimony is an appropriate subject

for judicial notice as a public record for the fact that

the statements were made.”).

Therefore, for purposes of our de novo review of

the district court’s decision dismissing Page’s FISA

and Patriot Act claims, we consider not only the

allegations of the second amended complaint, but also

the publication of the April 11, 2017 Washington Post

article, the April 22, 2017 New York Times article, and

his November 2, 2017 testimony before the House

Intelligence Committee, which transcript included

Page’s May 22, 2017 letter to Congressmen Conaway

and Schiff. To determine if Page’s claims are timebarred, we must assess, first, the applicable

limitations period, and second, the time at which his

claims accrued.

Page’s FISA claims center on four warrant

applications submitted to the FISC, which he alleges

the FBI knowingly supported with insufficient

evidence. “FISA is concerned with foreign intelligence

surveillance.” United States v. Belfield, 692 F.2d 141,

148 (D.C. Cir. 1982). “The statute is meant to ‘reconcile

17a

national intelligence and counterintelligence needs

with constitutional principles in a way that is

consistent with both national security and individual

rights.’” Id. (quoting S. Rep. No. 95–701, 95th Cong.,

2d Sess. 16 (1978)). FISA ensures individual privacy

“‘through its provisions for in-depth oversight . . . by

all three branches of government and . . . an expanded

conception of minimization that differs from that

which governs law-enforcement surveillance.’” Id.

(quoting Allan S. Schwartz, Oversight of Minimization

Compliance

Under

the

Foreign

Intelligence

Surveillance Act: How the Watchdogs Are Doing Their

Job, 12 Rutgers L.J. 405, 408 (1981)). Section 110 of

FISA (50 U.S.C. § 1810) creates civil liability for

individuals who violate Section 1809 by engaging in

unauthorized surveillance and/or disclosing/using the

information so obtained. 50 U.S.C. § 1809(a).

The district court correctly noted that “FISA’s

civil cause of action does not contain a statute of

limitations.” Page, 628 F. Supp. 3d at 116. Generally,

“[w]hen a federal action contains no statute of

limitations, courts will ordinarily look to analogous

provisions in state law as a source of a federal

limitations period.” Loumiet v. United States, 828 F.3d

935, 947 (D.C. Cir. 2016) (quoting Doe v. DOJ, 753

F.2d 1092, 1114–15 (D.C. Cir. 1985)); see also Richards

v. Mileski, 662 F.2d 65, 68 (D.C. Cir. 1981) (“In this

instance, as no specific statute of limitations has ever

been enacted by Congress for such claims, the

appropriate local statute of limitations is borrowed.”).

The individual defendants contend that the

appropriate limitations period is found either in D.C.’s

one-year statute of limitations for libel and invasion

18a

of privacy, or in the two-year statute of limitations set

forth in the Wiretap Act and the Stored

Communications Act—two federal laws that, like

FISA, regulate surveillance. See D.C. Code § 12301(4); 18 U.S.C. §§ 2707(f) [Stored Communications

Act], 2520(e) [Wiretap Act]. Page maintains that the

analogous limitations period is instead found in D.C.’s

three-year statute of limitations for “actions . . . for

which a limitation is not otherwise specifically

prescribed.” D.C. Code § 12-301(a)(8) (emphasis

added). Though recognizing the contrary inclination of

our partially dissenting colleague, Partial Dissent at

13–14, we assume without deciding that the longer

period applies because Page’s FISA claims accrued

before November 27, 2017—more than three years

before he filed his November 27, 2020 complaint—and

are therefore barred under even the most generous of

the potentially applicable limitations periods.

“State law dictates the statute of limitations, but

the timing of the accrual of . . . claims is a question of

federal law.” Loumiet, 828 F.3d at 947. “In federal

courts ‘the general rule of accrual’ in cases in which

the injury is ‘not of the sort that can readily be

discovered when it occurs’ is that a cause of action

accrues and the limitations period begins to run only

when ‘the plaintiff discovers, or with due diligence

should have discovered, the injury that is the basis of

the action.’” Sprint Commc’ns Co. v. FCC, 76 F.3d

1221, 1226 (D.C. Cir. 1996) (quoting Connors v.

Hallmark & Son Coal Co., 935 F.2d 336, 341–42 (D.C.

Cir. 1991)). Importantly, accrual is not delayed just

because the plaintiff does not yet have “access to or

19a

constructive knowledge of all the facts required to

support [a] claim.” Id. at 1228 (emphasis added).

In Hobson v. Wilson we held that, when a claim is

fraudulently concealed, its limitation period begins to

run at the time the claimants have reason to know of

both their injury and the unlawfulness of the

defendant’s conduct. 737 F.2d 1, 33–41 (D.C. Cir.

1984). There, we observed that plaintiffs were put on

sufficient notice more than three years before they

sued when they read an article describing an unlawful

FBI investigation of which they knew or had reason to

know they were targets. Id. at 38–39. We explained

that if plaintiffs either simply read the article about an

unlawful FBI scheme or simply knew of an FBI

investigation targeting them without any reason to

think it was unlawful, the information would not

suffice to provide notice of their claims. Id. at 38–39.

However, we emphasized that in reading the article

describing the FBI investigation as unlawful and

knowing they were the subjects of that investigation,

the Hobson plaintiffs had enough “timely information

to claim that they were victims of unconstitutional FBI

activities.” Id.

Page does not contest that, by April 11, 2017—the

publication date of the Washington Post article

describing the FBI’s surveillance of Page and quoting

Page’s description of the surveillance as “unjustified”

and “politically motivated”—he “knew that he was

subject to surveillance by the FBI and DOJ, and he

suspected that the allegations, and the ensuing

warrants, were baseless.” Page, 628 F. Supp. 3d at

118. Nonetheless, Page contends that his claims did

20a

not accrue until he received confirmation from the OIG

report that the warrants contained significant errors.

Our precedent does not require a plaintiff to have

access to a warrant’s supporting affidavit before claim

accrual starts. In Richards v. Mileski, we held that it

was “irrelevant” to consider when the government

agency would have made relevant documents

available to the plaintiff; instead, we concluded that

“[t]he test of due diligence measures the plaintiff’s

efforts to uncover his cause of action against what a

reasonable person would have done in his situation

given the same information.” 662 F.2d at 71 (emphasis

added). In Sprint Communications Company v. FCC,

we explained that once a prospective plaintiff is put on

notice that they may have an actionable claim, they

are “required to make a diligent inquiry into the facts

and circumstances that would support th[e] claim.” 76

F.3d at 1228. Finally, in Sparshott v. Feld

Entertainment, Inc., we held that “there is no need

that someone actually ‘discover’ or be aware of the

violation.” 311 F.3d 425, 429 (D.C. Cir. 2002)

(emphasis in original). “Rather, the question is

whether the person had a reasonable opportunity to

discover [it].” Id. (emphasis in original).

Page’s argument erroneously focuses on his lack

of access to the affidavits, rather than whether he took

reasonable measures to uncover his cause of action

once he learned of the defendants’ alleged wrongful

conduct. We disagree that Page did not have “notice of

the basis for his claims until the [OIG] Report was

issued in December 2019.” Reply Br. 3. Rather, by

spring of 2017, Page knew all the essential facts on

which he relies in support of his FISA claims that

21a

defendants surveilled him in violation of 50 U.S.C.

§ 1809(a)(1) and “disclosed or used” results of that

surveillance in violation of § 1809(a)(2).

Relying on the discovery rule and our precedent,

we hold that Page had actual or inquiry notice of his

FISA claims for unauthorized surveillance and

disclosure by April 2017. (Judge Henderson would

assume without deciding that the discovery rule

applies to Page’s FISA claims, Partial Dissent at 16,

but because we read our precedent to embrace that

rule, we apply it here.) In his second amended

complaint, Page alleged that the individual

defendants surveilled him knowing that there was no

probable cause to do so, and then unlawfully used or

disclosed the information gathered from that

surveillance. 2d Am. Compl. ¶ 142 (JA 50).

As previously noted, the April 11, 2017

Washington Post article quoted Page himself

describing the surveillance as “unjustified” and

“politically motivated.” JA096. Those statements show

that he had concluded by April of 2017 that the FBI

was unlawfully subjecting him to surveillance without

probable cause.

The Post article also reported that the FBI had

renewed the initial warrant “more than once,” JA097,

thereby informing readers, including Page, that the

FBI had submitted multiple warrant renewal

applications. FISA requires warrant renewal

applications to describe information gathered from

previous surveillance. That requirement is readily

available public information—especially to a person

like Carter Page with multiple advanced degrees and

22a

prior interest in CIA operations. 4 The statute declares

that:

Each application for an order approving

electronic surveillance . . . shall include . . .

a statement of the facts concerning all

previous applications that have been made

to any judge.

...

50 U.S.C. § 1804(a)(8) (emphasis added). And it

specifies that “an application for an extension of an

order under this subchapter for a surveillance

targeted against a United States person,” such as the

surveillance of Page, must include:

a summary statement of the foreign

intelligence

information

obtained

pursuant to the original order (and any

preceding extension thereof) as of the date

of the application for extension, or a

reasonable explanation of the failure to

obtain such information.

Id. § 1804(a)(11) (emphasis added). Page himself

highlights this requirement to support his FISA

claims. See 2d Am. Compl. ¶¶ 229, 230 (JA 70). The

statute’s command plus the Post report of repeated

renewals sufficed to put Page on notice that the FBI

4 Page alleges that he earned a Master’s degree in National

Security from Georgetown, an MBA from New York University,

and a PhD from the School of Oriental and African Studies

University of London, in addition to serving in the Navy in

“intelligence-related billets” and serving as an International

Affairs Fellow at the Council on Foreign Relations. 2d Am.

Compl. ¶ 21 (JA026–JA027).

23a

“used or disclosed” information gathered under the

initial warrant in its ensuing applications in

contravention of 50 U.S.C. § 1809(a)(2).

Given the direct quotations from Page in the Post

article together with FISA’s express terms, nothing

more is needed to show the claim is time-barred. But

Page’s May 22, 2017 letter to the House Intelligence

Committee provides helpful confirmation that, when

he spoke to the Post the previous month about the

“unjustified” and “politically motivated” surveillance,

he thought the government had intentionally

misrepresented his connection to Russia and

surveilled him in reliance on that pretense. 5 Page’s

letter described the warrants as “filled with a

potpourri of falsehoods from the Clinton/Obama

5 Our dissenting colleague posits that we cannot rely on Page’s

May 22, 2017, letter to the House Intelligence Committee because

the letter is a matter outside of the pleadings, Partial Dissent at

22–23, and Appellees forfeited and/or waived reference to it,

Partial Dissent at 28 n.11. However, matters judicially noticed

are not considered matters outside the pleadings. See Tellabs,

Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)

(“[C]ourts must consider the complaint in its entirety, as well as

other sources courts ordinarily examine when ruling on Rule

12(b)(6) motions to dismiss, in particular, documents

incorporated into the complaint by reference, and matters of

which a court may take judicial notice.”). Moreover, D.C. Circuit

precedent does not foreclose our discretion to consider “forfeited”

issues. Molock v. Whole Foods mkt. Grp., Inc., 952 F.3d 293, 298–

99 (D.C. Cir. 2020) (quoting U.S. Nat’l Bank of Or. v. Indep. Ins.

Agents of Am., Inc., 508 U.S. 439 (1993)). Forfeiture binds parties,

not the court. Miguel-Pena v. Garland, 94 F.4th 1145, 1158 (10th

Cir. 2024) (citation omitted). Accordingly, in our evaluation of

whether Page had notice of his FISA claims, we are not required

to ignore Page’s Congressional testimony or his May letter, which

occurred more than three years before he filed his complaint.

24a

regime which fabricated this travesty from the outset.”

JA102. The letter also confirms that he believed the

Post article was based on “illegal” leaks from within

the government. Therefore, Page’s May 22, 2017 letter

reiterating his awareness reflected in the April 11,

2017 article confirms that Page knew of the

unlawfulness of the FISA warrants and his resultant

injury more than three years before he filed his FISA

claims on November 27, 2020. 6 These facts are

materially indistinguishable from those supporting

the time bar in Hobson, 737 F.2d at 39. Far from

requiring him to file suit “on a hunch,” the stated

concern of the Hobson court, Page– who had both read

the Post and Times articles and knew he was the

subject of alleged illegal government surveillance–had

sufficient notice by April 2017 to bring FISA claims.

See id.

Our partially dissenting colleague discerns in

Page’s complaint a distinct claim of which he was not

aware in early 2017, and so is not time-barred: that

Peter Strzok and Lisa Page’s media leaks included

FISA-obtained information. Partial Dissent at 30, 35–

37. We do not read the complaint to state any such

claim. The dissent’s sole citation (id. at 35–36) is to

snippets of a sentence in the complaint that lumps

together distinct “use or disclose” theories and four

different defendants:

On information and belief, Defendants,

known and unknown to Dr. Page, but

including but not limited to, Comey,

6 Page did not argue judicial deception or any other basis to toll

the statute of limitations.

25a

McCabe, Strzok, and Page, leaked

information and records concerning Dr.

Page, including but not limited to the

existence of the FISA Warrants, the

contents of the warrant applications, and

the results of the Warrants, that were

protected from disclosure under the FISA

and the Privacy Act to media outlets,

including the New York Times, the

Washington Post, and possibly others.

2d. Am. Compl. ¶ 226 (JA 69–70). But the complaint

elsewhere attributes distinct actions to those

individual defendants. It describes Comey and

McCabe as applying for further FISA warrants—

necessarily using information obtained from earlier

surveillance and disclosing it to the FISA court in

“obtaining each subsequent renewal warrant.” 2d. Am.

Compl. ¶ 229 (JA 70); see id. ¶¶ 152–154, 162–63

(JA 52–53, 54). And, according to the complaint, Lisa

Page and Peter Strzok were the media leakers. See 2d.

Am. Compl. ¶¶ 196, 220-225 (JA 60, 67–69). Page

alleges that they leaked to the Washington Post and

the New York Times the existence of and putative

bases for FISA warrants to surveil him—allegations

later confirmed by the OIG Report. But the complaint

includes no plausible factual allegations supporting

any inference that Page or Strzok leaked the FISA

warrants’ results. In other words, “Page’s bare

allegation that the defendants disclosed the results of

this surveillance to the media, without any further

detail, does not raise his ‘right to relief above the

speculative level.’ Twombly, 550 U.S. at 555.” Page,

628 F. Supp. 3d at 129.

26a

To the extent such a theory is thought to be

pleaded in the summary sentence quoted above, it

hangs on a naked assumption: Despite a lack of factual

allegations, Strzok and Lisa Page leaked not just the

warrants’ existence, putative basis, and Page’s

identity, as the Post reported, but FISA-obtained

information, too. In sum, as to the distinct theory our

colleague discerns and concludes is timely, the reality

that the complaint adds no more factual support to the

assumed broader leak than Page either knew or had

reason to know in 2017 only confirms that no such

timely claim exists.

Page’s Patriot Act claim arises under 18 U.S.C.

§ 2712, which permits actions against the United

States to recover money damages for violations of

specified sections of FISA. Id. § 2712(a). The Patriot

Act expanded the investigatory tools federal law

enforcement agents can employ to allow for easier

exchange of information and cooperation between

units. See Patriot Act, H.R. 3162, 107th Congress

(2001–2002). The Patriot Act contains its own statute

of limitations, providing:

Any action against the United States

under this section shall be forever barred

unless it is presented in writing to the

appropriate Federal agency within 2 years

after such claim accrues or unless action is

begun within 6 months after the date of

mailing, by certified or registered mail, of

notice of final denial of the claim by the

agency to which it was presented.

27a

18 U.S.C. § 2712(b)(2). Although the D.C. Circuit has

not passed on this particular provision, we have

interpreted an identically worded provision in the

FTCA, 28 U.S.C. § 2401(b). 7 We held the FTCA

provision “requires the claimant both to file the claim

with the agency within two years after accrual of the

claim and then to file a complaint in the District Court

within six months after the agency denies the claim.”

Schuler v. United States, 628 F.2d 199, 201 (D.C. Cir.

1980). “Were we to read the ‘or’ in the section as really

intending the disjunctive, a claimant who filed a claim

with the agency within two years would then be able

to bring it to a District Court at any remote future

time after the agency denied him relief.” Id. See

Sanchez v. United States, 740 F.3d 47, 50 n.6 (1st Cir.

2014) (“We read this disjunctive language as setting

out two deadlines, both (not just either) of which must

be satisfied. Otherwise, there would effectively be no

deadline at all.”).

The Patriot Act not only employs limitations

language identical to the FTCA but adopted it decades

after Schuler had interpreted it as we do today. See

Smith v. City of Jackson, Miss., 544 U.S. 228, 260

7 Section 2401(b) states:

A tort claim against the United States shall be

forever barred unless it is presented in writing to

the appropriate Federal agency within two years

after such claim accrues or unless action is begun

within six months after the date of mailing, by

certified or registered mail, of notice of final denial

of the claim by the agency to which it was

presented.

28 U.S.C. § 2401(b).

28a

(2005) (O’Connor, J., concurring) (emphasizing that

like language appearing in separate statutes is a

“strong indication” that they should be interpreted

alike, particularly where judicial interpretation of one

statute precedes Congress’ adoption of the second)

(citing U.S. Dep’t of Energy v. Ohio, 503 U.S. 607, 626

(1992) (“Congress’ use of the same language . . .

indicates a likely adoption of our prior interpretation

of that language.”)); Shirk v. U.S. ex. rel. Dep’t of

Interior, 773 F.3d 999, 1004 (9th Cir. 2014) (“A basic

principle of interpretation is that courts ought to

interpret similar language in the same way, unless

context indicates that they should do otherwise.”).

Accordingly, we hold that, for statute of limitations

purposes, Page was required to present his Patriot Act

claim to the FBI within two years after the claim

accrued and file the resulting lawsuit within six

months after notice of the FBI’s denial of the claim.

Our partially dissenting colleague disagrees with our

use of Schuler and the other cases that rely on it.

Partial Dissent at 18–21. However, Schuler is

precedent of this Circuit and stare decisis requires us

to follow it unless “the court [e]n banc has overruled

it,” which it has not. Brewster v. Comm’r of Internal

Revenue, 607 F.2d 1369, 1373–74 (D.C. Cir. 1979).

Page successfully met the six-month filing

requirement. As alleged in the second amended

complaint, the FBI issued the final denial of Page’s

administrative claim on April 22, 2021. Page filed his

second amended complaint—the first complaint to

include his Patriot Act claim—on June 8, 2021, well

within the six-month deadline provided in 18 U.S.C.

29a

§ 2712(b)(2). But Page failed to file his administrative

claim with the FBI within two years of its accrual.

Under the Patriot Act, accrual occurs “on the date

upon which the claimant first has a reasonable

opportunity to discover the violation.” 18 U.S.C.

§ 2712(b)(2). Page asserts that he presented his

Patriot Claim to the FBI in a letter dated September

30, 2020. Therefore, if Page had notice of facts and

circumstances supporting the discoverability of a

Patriot Act claim before September 30, 2018, Page’s

claim is barred by the statute of limitations.

Page’s allegations and their documentary support

show that, as of April 2017, Page had ample bases to

discover the FISA violation supporting his Patriot Act

claim. In his second amended complaint, Page alleged

that the FBI and DOJ violated the Patriot Act by

using the surveillance information gathered on him

for unlawful purposes, including to obtain further

surveillance without probable cause. 2d. Am. Compl.

¶¶ 229, 230 (JA 70). As explained above, by April

2017, Page was on notice of that claim. The April 11,

2017, Washington Post article confirmed the existence

of two warrant applications:

The government’s application for the

surveillance order targeting Page included

a lengthy declaration that laid out

investigators’ basis for believing that Page

was an agent of the Russian government

and knowingly engaged in clandestine

intelligence activities on behalf of Moscow

. . . [and s]ince the 90-day warrant was

30a

first issued, it has been renewed more

than once by the FISA court.

JA097.

And, as explained above, see supra Section III.B.,

in addition to knowing that the FBI and DOJ had

secured at least one renewal warrant, Page knew or

could have known from the FISA statute itself that

any warrant renewal application had to disclose the

information gathered on him from previous

surveillance. See 50 U.S.C. § 1804(a)(8). As such, Page

had sufficient information by April 2017 to advance

his theory that the FBI and DOJ violated the Patriot

Act by using surveillance information gathered on

him to obtain subsequent warrant renewals. Page

later acknowledged as much by asserting in his May

22, 2017, letter to the House Intelligence Committee

that U.S. government operatives leaked his identity

and revealed classified information regarding “the

completely unjustified FISA warrant against [Page]”

documented in the Washington Post article. Page

Testimony, https://perma.cc/74C9-RWZ9 at 16–17,

21–22. These events confirm that Page discovered the

basis for his Patriot Act claim by April 2017,

significantly more than two years before he submitted

it to the FBI. As a result, the statute of limitations

bars Page’s claim under the Patriot Act.

*****

For the foregoing reasons, we affirm the district

court’s dismissal of Carter Page’s FISA and Patriot

Act claims pursuant to Federal Rule of Civil

Procedure 12(b)(6) as time-barred.

So ordered.

31a

KAREN LECRAFT HENDERSON, Circuit Judge,

concurring in part and dissenting in part: In my view,

this case involves the Government running roughshod

over institutional guardrails designed to safeguard

our civil liberties. The several defendants now evade

liability, not because they are guiltless, but because

the Court finds Carter Page’s claims time barred.

Although I agree in part with that conclusion, I cannot

join the majority in full because I am convinced that

one of Page’s claims is timely and, accordingly, he is

entitled to his day in court.

I. BACKGROUND

A. FISA’s History

I begin by summarizing the history of the Foreign

Intelligence Surveillance Act (FISA)—history that is

particularly pertinent to this case. With the advent of

electronic surveillance, the Government struggled to

strike a balance between two ancient and competing

interests: the need for a “vigorous executive” capable

of “secrecy[] and dispatch” in the national security

realm, The Federalist No. 70 (A. Hamilton) (Clinton

Rossitier ed., 1961), versus the risk that the

President’s “Minions” would use “dangerous or

oppressive Measures” and “shelter themselves” from

“Inquiry into their own misconduct in Office.” George

Mason, Objections to the Constitution of Government

Formed by the Convention (1787). In the early

twentieth century, the United States Supreme Court

held that domestic wiretapping and surveillance fell

outside the ambit of the Fourth Amendment absent a

physical trespass into a constitutionally protected

area. Olmstead v. United States, 277 U.S. 438, 464–66

32a

(1928). Under this framework, “the Fourth

Amendment was inapplicable to non-trespassory

electronic surveillance . . . [and] . . . warrants were not

required.” Zweibon v. Mitchell, 516 F.2d 594, 617 (D.C.

Cir. 1975) (en banc). And so, the Executive expanded

the scope of warrantless electronic surveillance, which

“was generally accomplished without a physical

trespass.” Id. at 617–18.

That regime was upended in Katz v. United

States, the decision that replaced the Fourth

Amendment’s trespass model with the now prevailing

reasonable-expectation-of-privacy test and held that

the Government must obtain a warrant before

employing electronic surveillance during a criminal

investigation. 389 U.S. 347, 353, 356–57 (1967). But

the Katz Court reserved judgment on whether its

holding applied “in a situation involving the national

security”—that is, when the Government’s reason for

surveillance was not traditional criminal enforcement

but intelligence gathering. Id. at 358 n.23. The

Congress responded to Katz by passing the Omnibus

Crime Control and Safe Streets Act of 1968 (OCCSSA).

Title III of OCCSSA, known as the Wiretap Act,

established procedures for judicial authorization of

electronic surveillance by law enforcement but

disclaimed regulation of the President’s ability to

intercept “[t]he contents of any wire or oral

communication” if the purpose was “to obtain foreign

intelligence information . . . or to protect national

security information against foreign intelligence

activities.” Pub. L. No. 90-351, Title III, § 802, 82 Stat.

197, 212, 214 (1968) (then-codified at 18 U.S.C.

§ 2511(3)).

33a

Five years later, in United States v. U.S. District

Court (the “Keith” case) the Supreme Court narrowed

the national security carve-out recognized in Katz. 407

U.S. 297 (1972). It first interpreted § 2511(3) of the

Wiretap Act as agnostic on “the President’s electronic

surveillance power,” neither endorsing nor denying its

existence. Id. at 303. It then held that the Fourth

Amendment

applies

“domestic

security

surveillance” if the target has no “significant

connection with a foreign power, its agents or

agencies.” Id. at 309 n.8, 320–22. The Keith Court, like

its predecessor, declined to pass on the “scope of the

President’s surveillance power with respect to the

activities of foreign powers, within or without this

country.” Id. at 308.

In the mid-1970s, courts continued to grapple

with the existence and scope of a national-security

exception to the Fourth Amendment. After Keith,

three federal circuits held that the President’s foreign

affairs powers allowed the Government to conduct

warrantless electronic surveillance to monitor

domestically an agent of a foreign power. See United

States v. Brown, 484 F.2d 418, 426 (5th Cir. 1973);

United States v. Butenko, 494 F.2d 593, 608 (3d Cir.

1974); United States v. Buck, 548 F.2d 871, 875–76

(9th Cir. 1977). Our Court bucked the trend and—in a

fractured

plurality

opinion—implied

that

“wiretapping in the area of foreign affairs should [not]

be exempt from prior judicial scrutiny.” Zweibon, 516

F.2d at 651. 1

1 The

eight judges of the en banc Court filed five separate

opinions. A four-judge plurality “suggest[ed]” that domestic

34a

Around the same time, the Congress and the

media brought to light a cascade of abuses committed

by the intelligence community. Presidents from

Franklin Roosevelt onward had authorized everexpanding warrantless electronic surveillance rooted

in claims of inherent executive power. S. Rep. No. 95604, at 7–9 (1977). Because of the need for secrecy, this

surveillance was conducted without legislative or

judicial oversight. S. Rep. No. 95-217, at 1 (1977).

Although the surveillance began as a tool for matters

“involving the defense of the nation,” it drifted into

domestic affairs. Keith, 407 U.S. at 310 n.10.

In 1975, the Congress formed a select committee

chaired by Maryland Senator Frank Church to

investigate the Executive’s alleged misuse of its vast

surveillance apparatus. The Church Committee

uncovered abuses that “infringed upon” the “rights of

United States citizens.” S. Rep. No. 94-755, at 12

(1976). The revelations spurred the Congress to create

the first Senate Select Committee on Intelligence,

which concluded that responsibility for surveillance

“must be shared by the three branches of

Government.” S. Rep. No. 95-217, at 1.

The legal and political tumult of the 1970s led to

a protracted legislative struggle to rein in the

President. The Foreign Intelligence Surveillance Act

resulted from those efforts. FISA aimed to resolve the

legal haze of Keith and the public’s eroded confidence

surveillance of an agent of a foreign power required a warrant but

did “not rest [their] decision” thereon. Id. Two judges declined to

speak to the issue and the remaining two believed that the

plurality’s dicta was wrong. Id. at 681, 686, 688–89, 705–06.

35a

in the intelligence community with one “basic

premise”—“that a court order for foreign intelligence

electronic surveillances can be devised that is

consistent with . . . the fourth amendment.” S. Rep. No.

95-701, at 9 (1978). FISA “was a surprisingly simple

statute” that “banned the Government from

conducting ‘electronic surveillance’ without a FISA

warrant,” absent one of a narrow list of exceptions.

Orin S. Kerr, Updating the Foreign Intelligence

Surveillance Act, 75 U. Chi. L. Rev. 225, 230 (2008).

The warrant was to be issued by the newly created

Foreign Intelligence Surveillance Court (FISC), the

Congress’s mechanism for balancing secrecy and

accountability. The FISC lies at the heart of FISA’s

grand bargain: the Executive Branch agreed to legal

oversight and restraint in exchange for procedural

safeguards implemented behind a veil of secrecy.

“Unlike most other courts, [the] FISC holds its

proceedings in secret and does not customarily publish

its decisions.” ACLU v. United States, 142 S. Ct. 22, 23

(2021) (Gorsuch, J., dissenting from the denial of

certiorari). The Congress would police the FISA

process through two newly formed intelligence

committees that themselves conduct a significant

share of their business behind closed doors.

FISA thus resolved the lingering Keith exception

and remedied the intelligence community’s rudderless

surveillance through a series of internal and external

checks. See 50 U.S.C. §§ 1804(a) (executive oversight

procedures), 1805(a) (judicial oversight), 1808

(congressional oversight) (1978). Foreign intelligence

surveillance now requires a warrant and that warrant

36a

is subject to Executive Branch attestation, judicial

approval and post-hoc congressional oversight.

Sadly, the closed nature of the process allowed a

mix of complacency and duplicity to unspool FISA’s

tightly wound safeguards. One early pressure point

arising in the FISA process was the Government’s

purpose

for

surveilling:

foreign

intelligence

surveillance is the domain of FISA but traditional law

enforcement is subject to Title III procedures.

Compare 50 U.S.C. § 1804(a) with 18 U.S.C. §§ 2516–

18; see also U.S. Telecom Ass’n v. FCC, 227 F.3d 450,

453 (D.C. Cir. 2000). Whereas a Title III warrant

requires a probable cause of criminal activity

determination, FISA requires only probable cause that

a target is acting as a foreign power’s agent. Before

procuring a warrant, then, FISA required the

Executive Branch to certify “that the purpose of the

surveillance is to obtain foreign intelligence

information.” Foreign Intelligence Surveillance Act of

1978, Pub. L. No. 95-511, § 104(a)(7)(B), 92 Stat 1783,

1789. To police the FISA/Title III line, in the mid1990s the Attorney General constructed a “wall”

between the intelligence community and the

Department of Justice (DOJ). Under DOJ’s 1995

policy, federal prosecutors avoided giving even the

“appearance” that they were “directing or controlling”

an investigation if FISA applied or was even being

contemplated. See Memorandum from the Att’y Gen.

on Procedures for Contacts Between the FBI and the

Criminal Division Concerning Foreign Intelligence

and Foreign Counterintelligence Investigations (July

19, 1995), https://perma.cc/X42F-QESR.

37a

In 2001, the FISC presiding judge unearthed a

series of FBI affidavits that claimed adherence to the

wall when in fact information had leaked from the FBI

to federal prosecutors. The issue was not the merits of

the wall; indeed, the Congress would later amend

FISA to remove the wall. See USA Patriot Act of 2001,

Pub. L. No. 107–56, § 218, 115 Stat. 272, 291

(amending 50 U.S.C. § 1804(a) from “the purpose” to

“a significant purpose” to allow for greater information

sharing across the Executive); In re Sealed Case, 310

F.3d 717, 736–46 (FISC Rev. 2002) (upholding the

amended language). Rather, the concern was the

Executive’s disregard for its own procedural buffers

and its sometimes-doubtful representations to the

court. It initially “confess[ed] error in some 75 FISA

applications . . . related to misstatements and

omissions of material facts,” a number that only grew

with time. In re All Matters Submitted to Foreign Intel.

Surveillance Ct., 218 F. Supp. 2d 611, 620–21 (FISC

2002), abrogated on other grounds by In re Sealed

Case, 310 F.3d 717. In response, the FISC presiding

judge convened the full FISC and issued an order

banning one FISA affiant from ever again appearing

before the court. Bernard Horowitz, FISA, the “Wall,”

and Crossfire Hurricane: a Contextualized Legal

History, 7 Nat. Sec. L. J. 1, 64–65 (2020) (recounting

this history).

In response to the lapses recounted above, the FBI

implemented what became known as the “Woods

procedures,” a series of internal checks requiring the

FBI agent responsible for a FISA warrant application

maintain

“Woods

File”—supporting

documentation for every factual assertion contained in

38a

the FISA warrant application. In re Accuracy Concerns

Regarding FBI Matters Submitted to the FISC, No. 1902, 2020 WL 1975053, at *1 (FISC Apr. 3, 2020).

B. Carter Page Warrants

As the majority describes it, the FBI made some

“factual misstatements and omissions regarding

Page.” Maj. Op. 10. Assuming the facts as alleged to be

true, as we must at this litigation stage, see Mills v.

Anadolu Agency NA, Inc., 105 F.4th 388, 395 (D.C. Cir.

2024), I find the record far more troubling. According

to Page, the FBI engaged in serious Woods File

breaches: it failed to scrutinize the conflicting motives

of its primary source, Christopher Steele; it concealed

information from the FISC that cast doubt on Steele’s

credibility; and it omitted Page’s past work for the

Central Intelligence Agency (CIA) in its FISA

application. 2 It is solely because of these breaches that

the FISC authorized the Government’s surveillance of

Page. Ordinarily, these facts would be allegations we

would simply assume to be true. But we need not rely

on assumptions. In 2019, the Justice Department’s

Office of the Inspector General (OIG) issued a report

cataloging the delicts. See OIG, Review of Four FISA

Applications and Other Aspects of the FBI’s Crossfire

2 In addition to his work for the CIA, Page served in the United

States Navy, led a distinguished career at a leading financial

institution and taught courses on energy and politics at New York

University. After graduating from the United States Naval

Academy, Page obtained a Master’s degree from Georgetown, an

MBA from NYU and a PhD from the School of Oriental and

African Studies University of London.

39a

Hurricane Investigation (Dec. 2019), https://perma.cc/

8TGE-VGTK (OIG Report).

The OIG found that the FBI ex industria

concealed exculpatory information regarding Page

from the FISC while embellishing more negative

information. The FBI suspected Page of involvement

in Russia’s infamous 2016 election interference based

on a report prepared by Steele. Id. at vii. Yet the “FBI

did not have information corroborating the specific

allegations against Carter Page in Steele’s reporting

when it relied upon his reports in the first FISA

application or subsequent renewal applications.” Id. at

viii. Indeed, the FBI “obtained [] information raising

significant questions about the reliability of” Steele

yet said nary a word to the FISC. Id. at vi. On the

contrary, it “overstated” Steele’s reliability. Id. at viii.

The OIG identified several “instances in which

factual assertions relied upon in the [] FISA

application[s] were inaccurate, incomplete, or

unsupported.” Id. In one of the most glaring acts of

defiance, an FBI lawyer, Kevin Clinesmith, altered

emails to indicate that Page was “not a source” for the

CIA when he had in fact acted as a source in the past.

Id. at 7– 8; see also United States v. Clinesmith, No.

20-cr-165, ECF Nos. 8–9, (D.D.C. Aug. 19, 2020). All in

all, the OIG identified seventeen significant errors in

the Page FISA applications. See OIG Report at viii–xii.

As the Government itself now belatedly concedes, but

for those errors it could not have sustained its

surveillance of Page. See Gov’t Br. 6 (acknowledging

that “in light of th[e]se errors, in the last two renewal

applications, if not earlier, there was insufficient

predication to establish probable cause to believe that

40a

Page was acting as an agent of a foreign power”)

(quotations omitted).

It would be egregious enough if this conduct were

the work of a few wayward defalcators. But the OIG

found that similar shortcomings infected the entire

FISA process. On the heels of the Page fiasco, the OIG

conducted a random audit of 29 other FISA

applications to ascertain their compliance with the

Woods File procedures. Every reviewed application

contained Woods violations. Twenty-five files

contained inadequately supported claims or errors and

four applications had no Woods File. OIG, Audit of the

Federal Bureau of Investigation’s Execution of its

Woods Procedures for Applications Filed with the

Foreign Intelligence Surveillance Court Relating to

U.S. Persons ii (Sept. 2021), https://perma.cc/3LKS72CP. The Justice Department informed the FISC

that these 29 applications contained 209 errors and

the OIG identified an additional 209 instances in

which the Woods Files did not support claims made in

the warrant applications. Id. at ii, 7–8. A broader audit

of every FISA application made between January 2015

to March 2020 produced yet another 179 instances

“where the required Woods File was missing,

destroyed, or incomplete.” Id. In other words, the

manifest failures in the Page FISA process were not

an aberration but par for the course for the FBI.

C. The Page Leaks

But the FBI did not stop at misleading the

FISC. Page was not only unlawfully surveilled—the

surveillance then became public fodder due to a steady

drip of leaks to the media that painted Page as a

41a

foreign agent; in particular, a Russian agent. First, the

FBI’s informant, Christopher Steele, disclosed

selected portions of his subsequently discredited

investigation to the media, including that Page had

met with sanctioned Russian individuals. Second, two

FBI employees, Lisa Page and Peter Strzok, executed

a scheme to leak to the media that Page was the

subject of a FISA warrant. In a series of crass text

messages sent via their government devices, Strzok

and Lisa Page shared their mutual enmity for Page

and crowed about their “media leak strategy” to

tarnish his reputation. 3 The Deputy Attorney General

later released these text messages because he believed

that they “were so inappropriate and intertwined with

their FBI work that they raised concerns about

political bias influencing official duties.” Declaration

of Rod J. Rosenstein, Strzok v. Barr, No. 1:19-cv-2367,

ECF No. 38-1, (D.D.C. Jan. 17, 2020). The leaks had

their predictable effect. For years Page has been

branded with the false label of “agent of a hostile

foreign power.”

3 Deputy FBI Director Andrew McCabe allegedly put his

imprimatur on the Page media leak operation. Indeed, McCabe

was later fired from the FBI after personally authorizing a leak

of other “sensitive information” to, as the OIG found, “enhanc[e]

[his] reputation.” OIG, A Report of Investigation of Certain

Allegations Relating to Former FBI Deputy Director Andrew

McCabe 1–2, 33–34 (Feb. 2018), https://perma.cc/8TZK-9GZM.

When questioned about the leaks, McCabe “lacked candor” with

the FBI Director and—under oath—again “lacked candor” with

the FBI’s Inspection Division and OIG. Id. More colloquially,

McCabe leaked, then lied.

42a

II. ANALYSIS

Despite our Government’s appalling conduct, I

agree with my colleagues’ conclusion that Page cannot

prevail on all but one of his claims. His FISA claims

cannot be brought against the Government

defendants—the Department of Justice, the FBI and

the United States—and his Patriot Act claim—which

can lie against governmental agencies—is, I believe,

forfeited and, in any event, is without merit as

discussed infra. 4 As for Page’s first FISA claim against

the individual defendants, I reach the same result that

my colleagues do but on slightly different analyses.

And, most importantly, I do not agree that Page’s

second FISA claim is time-barred; I believe that Page

states a timely and plausible claim for relief and would

therefore reverse the district court’s dismissal of that

claim.

A. FISA Section 1809(a)(1)

I begin where the majority does: with Page’s

§ 1809(a)(1) claim. My colleagues conclude that Page’s

first FISA claim is time-barred but “assume without

deciding” which of the parties’ three proffered

limitations periods governs. Maj. Op. 16. And they

decide that the federal discovery rule controls in

determining when a FISA claim first accrues. Id. I

would resolve the question they assume and assume

the question they decide.

4 See discussion II.B.

43a

1. Limitations Period/Accrual Rule

FISA contains no statute of limitations, “a void

which is commonplace in federal statutory law.” Bd. of

Regents v. Tomanio, 446 U.S. 478, 483 (1980). In the

absence of congressional preemption, the applicable

state limitations statute applies of its own force; that

is, the court “‘borrow[s]’ the most closely analogous

state limitations period.” Graham Cnty. Soil & Water

Conservation Dist. v. U.S. ex rel. Wilson, 545 U.S. 409,

414 (2005). The parties advance a slew of options for

the governing limitations period. In my view, only

one—D.C. Code § 12-301(8)—has merit.

The individual defendants argue that we should

use the two-year limitations period found in both the

Wiretap Act and the Stored Communications Act

because those laws “work in tandem with FISA and

share its objective[s],” and because a resort to state

law would result in “forum shopping and inconsistent

judgments.” Red Br. 52–53 (internal quotations

omitted). 5 The Wiretap Act, Pub L. No. 90-351, Title

III, § 802, 82 Stat. 197, 212, 18 U.S.C. § 2510 et seq.,

governs prospective surveillance of the contents of

oral, wire or electronic communications. Its

counterpart, the Stored Communications Act, Pub. L.

No. 99-508, Title II, § 201, 100 Stat. 1848, 1860, 18

U.S.C. § 2701 et seq., governs acquisition of the

contents or metadata of those communications. In

other words, the Wiretap Act applies when the

Government actively intercepts communications and

the Stored Communications Act applies when the

5 For clarity, I refer to the individual defendants’ brief as the

Red Brief and to the Government’s brief as the Gov’t Brief.

44a

Government seeks to retrieve stored communications.

It can be the difference between listening in on a live

telephone call and retrieving a one-month log of a

cellphone’s intercepted text messages.

The three statutes are in pari materia—they

relate “to the same subject matter,” employ contiguous

statutory terms and form discrete pieces of a uniform

whole: the means by which the Government may

lawfully conduct electronic surveillance of its citizens.

2B Singer & Singer, Sutherland Statutes & Statutory

Construction (7th ed. Nov. 2024 update) § 51:1–3. For

this reason, the individual defendants argue that the

Court should apply the two-year limitations period

prescribed for the Wiretap Act and for the Stored

Communications Act to FISA. With respect, I disagree.

I do agree that state statutes of limitations apply

of their own force unless legitimately displaced by an

act of the Congress. Perhaps because this doctrine

became the inaptly named “borrowing doctrine,”

courts thought it equally proper to “borrow” statutes

of limitations from other federal laws. See, e.g.,

Haggerty v. USAir, Inc., 952 F.2d 781, 786–88 (3d Cir.

1992); Smith v. Int’l Org. of Masters, Mates & Pilots,

296 F.3d 380, 382 (5th Cir. 2002). But properly

understood, “the borrowing doctrine involves no

borrowing at all.” Agency Holding Corp. v. Malley-Duff

& Assocs., 483 U.S. 143, 163 (1987) (Scalia, J.,

concurring in the judgment). Instead, “state statutes

of limitations . . . apply as a matter of state law” to

“federal statutory causes of action” if the Congress has

not otherwise prescribed. Id. at 161. A court that

applies a state statute of limitations is engaged in a

quintessentially judicial role: the application of law to

45a

facts. But a court treads on legislative terrain when it

“borrows” what it views as a sufficiently analogous

federal limitations period from one statute and applies

it to another. To do so “is not a construction of a

statute, but, in effect, an enlargement of it by the

court.” Rotkiske v. Klemm, 589 U.S. 8, 14 (2019).

Accordingly, the Supreme Court has termed it “the

rare case” in which it is appropriate to “borrow [an]

analogous federal limitations period in the absence of

an expressly applicable one.” Graham Cnty., 545 U.S.

at 415; see N. Star Steel Co. v. Thomas, 515 U.S. 29,

34–35 (1995) (describing it as “a closely circumscribed

and narrow exception to the general rule” that state

law applies) (alterations omitted). And here, FISA’s

close relationship to the Wiretap and Stored

Communications Acts and its express omission of a

statute of limitations does not support “borrowing”

either of the latter limitations periods; instead, the

negative inference is just as justified, if not more so. If

a statute “omits words used in a prior statute on a

similar subject,” that omission is considered deliberate

and indicative of a “different intent.” 2B Sutherland §

51:2.

In the alternative, the individual defendants ask

that we apply D.C.’s one-year statute of limitation for

claims alleging “libel, slander” or “other invasion of

privacy claims.” D.C. Code § 12-301(4); see Greenpeace,

Inc. v. Dow Chem. Co., 97 A.3d 1053, 1062 (D.C. 2014)

(extending § 12-301(4) to privacy torts). Section 12301(4) claims apply to private tortfeasors; FISA

governs only those who engage in conduct “under color

of law.” 50 U.S.C. § 1809(a)(1), (2); see Payne v. District

of Columbia, 559 F.2d 809, 817 n.32 (D.C. Cir. 1977)

46a

(explaining that “injuries inflicted by officers acting

under color of law are significantly different in kind

from those resulting from acts of private persons”). We

have also held that D.C.’s catchall three-year

limitations period applies to analogous Fourth

Amendment Bivens actions. See Banks v. Chesapeake

& Potomac Tel. Co., 802 F.2d 1416, 1429 (D.C. Cir.

1986); D.C. Code § 12-301(8) (setting a three-year

limitation for any claim “not otherwise specifically

prescribed”). Accordingly, I agree with my colleagues

that § 12-301(8)’s three-year limitation applies—not

because I assume it but because the law commands it.

Although I believe the limitations period is

straightforward, the accrual rule presents a closer

question that I would not resolve today. Section 12301(8)’s three-year limitation runs from “the time the

right to maintain the action accrues.” As the majority

explains, the accrual rule for a federal claim—even

when applying a state limitations period— is a

question of federal law. See Albright v. Oliver, 510 U.S.

266, 280 n.6 (1994).

A claim accrues “when the plaintiff has a complete

and present cause of action—i.e., when she has the

right to file suit and obtain relief.” Corner Post, Inc. v.

Bd. of Governors of Fed. Rsrv. Sys., 603 U.S. 799, 809

(2024) (internal quotations omitted). A claim for

retrospective relief becomes complete, and thus

accrues, at the moment of injury. This is called the

“incident of injury rule,” Petrella v. Metro-GoldwynMayer, Inc., 572 U.S. 663, 670 & n.4 (2014), and

constitutes the “standard rule” for accrual. Rotkiske,

589 U.S. at 13; Graham County, 545 U.S. at 418

(same). Sometimes, however, courts employ a

47a

“discovery rule,” under which the limitations period

begins “when the plaintiff discovers, or with due

diligence should have discovered, the injury that forms

the basis for the claim.” Petrella, 572 U.S. at 670 n.4.

The discovery rule “arose in 18th-century fraud cases

as an ‘exception’ to the standard rule,” Gabelli v. SEC,

568 U.S. 442, 449 (2013), and has since been expanded

by the Supreme Court to only “two contexts, latent

disease and medical malpractice.” TRW Inc. v.

Andrews, 534 U.S. 19, 27 (2001).

The majority posits that the discovery rule is “the

general rule” in federal courts, at least “in cases in

which the injury is ‘not of the sort that can readily be

discovered when it occurs.’” Maj. Op. 16 (quoting

Sprint Commc’ns Co. v. FCC, 76 F.3d 1221, 1226 (D.C.

Cir. 1996)). I respectfully disagree. The majority relies

on our decision in Sprint Communications, which in

turn relies on Connors v. Hallmark & Son Coal Co.,

935 F.2d 336, 341–42 (D.C. Cir. 1991). In Connors,

then-Judge Ruth Bader Ginsburg concluded that

courts of appeals had coalesced around the view that

“the discovery rule is to be applied in all federal

question cases in the absence of a contrary directive

from Congress.” 935 F.2d at 342 (quotation omitted). I

believe that consensus may no longer be good law.

The Supreme Court has “observed that lower

federal courts ‘generally apply a discovery accrual rule

when a statute is silent on the issue’” but it has

conspicuously “not adopted that position as [its] own.”

TRW Inc., 534 U.S. at 27 (quoting Rotella v. Wood, 528

48a

U.S. 549, 555 (2000)). 6 On the contrary, the Court has

cautioned against an “expansive approach to the

discovery rule” and termed its broad use a “bad wine

of recent vintage.” Rotkiske, 589 U.S. at 14 (quoting

TRW Inc., 534 U.S. at 37 (Scalia, J., concurring in the

judgment)). Rotkiske “expressly rejected” the “default

presumption that all federal limitations periods run

from the date of discovery.” Id. at 12. Granted, the

clandestine nature of FISA surveillance may often

preclude FISA’s civil cause of action absent a discovery

accrual rule. But no party here challenged the

applicability of the discovery rule and so we lack the

benefit of adversarial briefing on the matter. I would

accordingly assume without deciding that the

discovery accrual rule applies here.

With these reservations noted, I agree that Page’s

§ 1809(a)(1) claim alleging that the individual

defendants engaged in unlawful surveillance is

untimely for the reasons explained by the majority.

The Patriot Act

The Plain Text

The Patriot Act provides that:

Any action against the United States under

this section shall be forever barred unless

it is presented in writing to the appropriate

Federal agency within 2 years after such

claim accrues or unless action is begun

6 Notably, TRW Inc. was authored by Justice Ginsburg. Justice

Ginsburg cited to her Connors decision but drew a contrast

between the default rule as developed in the circuit courts and

the default rule applied by the Supreme Court. Id. at 27–28.

49a

within 6 months after the date of mailing,

by certified or registered mail, of notice of

final denial of the claim by the agency to

which it was presented. The claim shall

accrue on the date upon which the claimant

first has a reasonable opportunity to

discover the violation.

18 U.S.C. § 2712(b)(2) (emphasis added). Section

2712(b)(2) is plainly disjunctive: a plaintiff must either

present his claim to the agency within two years or

bring an action within six months of final agency

denial.

The Patriot Act’s statute of limitation echoes the

Federal Tort Claims Act (FTCA), which provides that:

(a) [E]very civil action commenced against

the United States shall be barred unless

the complaint is filed within six years after

the right of action first accrues.

(b) A tort claim against the United States

shall be forever barred unless it is

presented in writing to the appropriate

Federal agency within two years after such

claim accrues or unless action is begun

within six months after the date of mailing,

by certified or registered mail, of notice of

final denial of the claim by the agency to

which it was presented.

28 U.S.C. § 2401. Both the Patriot Act and the FTCA

impose two distinct procedural requirements:

administrative exhaustion and timely filing. No action

can be filed against the United States “unless the

claimant shall have first presented the claim to the

50a

appropriate Federal agency and his claim shall have

been finally denied by the agency.” 28 U.S.C. § 2675(a).

The agency then has six months to resolve an

administrative claim, after which the agency’s silence

may “be deemed a final denial of the claim.” Id. All

claims are then subject to the general limitations rule

that they are “barred unless the complaint is filed

within six years after the right of action first accrues.”

Id. § 2401(a). 7 For FTCA and Patriot Act claims only,

the action is also “barred unless it is presented in

writing to the appropriate Federal agency within two

years after such claim accrues or unless action is

begun within six months after . . . final denial of the

claim by the agency.” Id. § 2401(b); accord 18 U.S.C.

§ 2712(b)(2).

Properly construed, any claim against the United

States must, in effect, first be presented to the

Government no later than five years and six months

from accrual; that is, six months before the six-year

limitations deadline in 28 U.S.C. § 2401(a). For tort

and Patriot Act claims, a plaintiff is subject to a

stricter rule requiring timelier administrative

presentment. If the plaintiff presents his claim to the

agency within two years, he is treated like other

claimants and benefits from the full six-year statute of

limitations. But if the plaintiff presents his claim to

the agency after two years, the limitations period for

civil suit is shortened to six months after agency

denial. The statute effectively imposes a penalty on a

7 These FTCA procedures apply with equal force to the Patriot

Act. See 18 U.S.C. § 2712(b)(1) (requiring “[a]ny action . . . under

this section” to follow the agency presentment “procedures of the

Federal Tort Claims Act”).

51a

plaintiff who sits on his claim before presenting it to

an agency.

Despite the plain text, in Schuler v. United States

this court applied comments in the FTCA’s legislative

history to rewrite its deadline. 628 F.2d 199 (D.C. Cir.

1980). It worried that “[w]ere we to read the ‘or’ in the

section as really intending the disjunctive, a claimant

who filed a claim with the agency within two years

would then be able to bring it to a District Court at any

remote future time after the agency denied him relief.”

Id. at 201. But that result does not follow. A claimant

would still be subject to § 2401(a), which bars any

claim not brought within six years of accrual. The

Schuler court thought that “relying on [§ 2401(a)]

makes little sense” because it is a “general” limitation

“superseded” by the “specific language of Section

2401(b).” Id. And notwithstanding § 2401(a) and (b)

can operate jointly, the Court determined that “the

legislative history of Section 2401(b) clearly shows

that Congress intended a claimant to surmount both

[§ 2401(b)] barriers.” Id. at 202.

Schuler divined this congressional intent not from

the statute but from a pair of committee reports. The

committee reports describe § 2401(b) as requiring “a

claimant [to] file a claim in writing to the appropriate

Federal agency within 2 years after the claim accrues,

and to further require the filing of a court action

within 6 months . . . of a final decision . . . by the

agency.” H.R. Rep. No. 89-1532, at 5 (1966) (emphasis

added); accord S. Rep. No. 89-1327, at 8 (1966)

(similarly using an “and”). Schuler engrafted the

committee report’s “and” onto the statutory “or,”

relying on its “common sense and the legislative

52a

history” and its belief that the FTCA was “not happily

drafted.” 628 F.2d at 201.

Three years later, the Second Circuit adopted our

statutory misconstruction. It did so despite conceding

that “[i]t is beyond dispute that ‘or’ generally is a

disjunctive.” Willis v. United States, 719 F.2d 608, 610

(2d Cir. 1983). Surveying the legislative history, the

court declared it “beyond our ken” “[w]hy the

draftsman chose to use ‘or’ in the bill, as distinguished

from the crystal clear ‘and’ of the committee reports.”

Id. at 612. Relying on Schuler, Willis rewrote § 2401(b)

to fit the statute to its legislative history. Willis

acknowledged that it did not provide “a strictly literal

reading” and that it could therefore “lead to an

intercircuit conflict.” Id. at 610, 613 n.3.

Later precedent of both the Supreme Court and

this Court makes clear that the statute’s plain

language cannot be disregarded. In interpreting

statutes, we begin with the “plain language” because

it is “[t]he most reliable guide to congressional intent,”

Friends of the Earth, Inc. v. EPA, 446 F.3d 140, 145

(D.C. Cir. 2006), and “avoid[s] the pitfalls that plague

too quick a turn to the more controversial realm of

legislative history.” Lamie v. U.S. Tr., 540 U.S. 526,

536 (2004). “[L]egislative history is not the law” and

insofar as it is ever a proper source for revealing

congressional intent, it is only to resolve an ambiguity,

not to create one by “muddy[ing] clear statutory

language.” Azar v. Allina Health Servs., 587 U.S. 566,

579 (2019). This is particularly true “with respect to

filing deadlines [when] a literal reading of Congress’

words is generally the only proper reading of those

words.” United States v. Locke, 471 U.S. 84, 93 (1985).

53a

There is no ambiguity in the meaning of “or.”

Schuler simply—and erroneously—thought that the

Congress did not intend what it wrote. And as

predicted, its disregard of the text eventually

engendered a circuit split. Compare Schuler, 628 F.2d

at 201 (“Were we to read the ‘or’ in the section as really

intending the disjunctive, a claimant who filed a claim

with the agency within two years would then be able

to bring it to a District Court at any remote future time

after the agency denied him relief”) with Ellison v.

United States, 531 F.3d 359, 363 (6th Cir. 2008) (“Had

Congress used ‘and’ in writing this statute (or had we

adopted ‘and’ in construing it), that would mean that

a claim would be barred only if the plaintiff filed the

action late in the agency and filed the action late in

court.”). 8

Schuler’s misinterpretation violates basic

principles of statutory construction and fair notice.

Under Schuler’s approach, the meaning of § 2401(b) is

the precise opposite of its text. Indeed, Willis

acknowledged that its interpretation “may cause

hardship to litigants” who rely on the law as written.

719 F.2d at 613 n.3. But see Feliciano v. Dep’t of

8 Ellison created its own interpretative anomalies by inverting

the logic of the statute. In an effort to reconcile Schuler’s

(mistaken) belief that a plain text read would eliminate any

judicial deadline with the disjunctive “or,” the court read “forever

barred . . . unless” (a) “or” (b) as “forever barred . . . if not” (a) “or”

(b). Id. at 363. That is, the court interpreted § 2401(b) to forever

bar claims if a plaintiff does not present the claim to an agency

within two years or does not sue within six months of agency

denial. That is not what the statute says. But Ellison at least

recognized that it could not simply “transform[] ‘or’ into ‘and’” to

better align with purported legislative purpose. Id. at 363.

54a

Transp., 145 S.Ct. 1284, 1291 (2025) (“[T]hose whose

lives are governed by law are entitled to rely on its

ordinary meaning, not left to speculate about hidden

messages.”). That should not be the case, especially in

the context of the FTCA, where claimants are often pro

se.

Of course, Schuler remains binding on this panel

until the Supreme Court or the en banc Court corrects

it. But its stare decisis effect applies only to the FTCA.

We have never interpreted the Patriot Act’s statute of

limitations and are therefore not bound to compound

its error. Although “stare decisis concerns may counsel

against overruling” our erroneous FTCA precedent,

there is “no reason whatsoever” to let that error spill

over to a separate statute. Rose v. Rose, 481 U.S. 619,

636 (1987) (O’Connor, J., concurring in part and

concurring in the judgment). “To be sure, where two

statutes use similar language,” courts “generally take

this as a strong indication that they should be

interpreted pari passu.” Smith v. City of Jackson, 544

U.S. 228, 260 (2005) (O’Connor, J., concurring in the

judgment) (cleaned up); see Maj. Op. 24–25 (relying on

this rationale). But nothing in Schuler “provides any

reason to extend its holding to the” Patriot Act as “the

decision in [Schuler] was not based on any analysis of

[the FTCA’s] actual language. Rather, the ratio

decidendi was the statute’s [legislative history].”

Smith, 544 U.S. at 261–62.

As should be plain, the legislative history of

statute A has no bearing on the meaning of statute B.

The committee reports that Schuler thought key are

doubly irrelevant: once because they are unenacted

legislative history and, again, because they are the

55a

legislative history of a different statute. “[L]egislative

history can not justify reading a statute to mean the

opposite of what it says” or “turn[ing] a clear text on

its head.” Spivey v. Vertrue, Inc., 528 F.3d 982, 985

(7th Cir. 2008). And it certainly cannot do so if it tells

the legislative history of another statute.

There is no dispute that Page filed his Patriot Act

claim within six months of agency denial and within

six years of claim accrual. See Maj. Op. 25. That should

be the end of the matter.

2. Page’s Timeliness

Even under what I believe is the majority’s

mistaken statutory construction, Page’s Patriot Act

claim is timely. The Patriot Act authorizes a suit

against the United States for a willful violation of

certain FISA provisions. Section 106(a) of FISA—the

only provision Page relies on—in turn provides that

“[n]o information acquired from an electronic

surveillance pursuant to [FISA] may be used or

disclosed by Federal officers or employees except for

lawful purposes.” 50 U.S.C. § 1806(a). My colleagues

believe that Page knew or should have known of the

Government’s use or disclosure of FISA-derived

information as of the April 2017 Washington Post

article, a theory I address more fully infra. 9 For now,

I note my belief that nothing in the Post article would

give Page the requisite notice of his injury to establish

that his claim accrued more than two years before it

was administratively presented.

9 See discussion II.C.

56a

The majority also points to Page’s statements in a

May 22, 2017 letter to the House Permanent Select

Committee on Intelligence. Maj. Op. 27. Unlike the

Washington Post report, the May 2017 letter is not

incorporated into Page’s complaint. The Government

requested that the district court take judicial notice of

the letter under Fed. R. Evid. 201(b), a request the

majority now apparently grants. The Government

skates on thin ice when it asks the Court to resolve an

affirmative defense on a motion to dismiss based on

facts outside the record. As we have repeatedly stated,

affirmative defenses may be resolved on a Rule

12(b)(6) motion based only on “the face of the

complaint.” Smith-Haynie v. District of Columbia, 155

F.3d 575, 578 (D.C. Cir. 1998). Should the Government

urge the court to “consider matters outside the

pleadings,” the Court must “convert[] the motion into

one for summary judgment and afford[] all parties

‘reasonable opportunity to present all material made

pertinent to such a motion by Rule 56.’” Gordon v.

Nat’l Youth Work All., 675 F.2d 356, 360 (D.C. Cir.

1982) (quoting Fed. R. Civ. P. 12(b)).

The majority concludes that the May 2017 letter

reflects Page’s belief that the Government “leaked his

identity and revealed classified information regarding

[the FISA warrants] . . . documented in the

Washington Post article.” Maj. Op. 27. The first claim

goes to Page’s belief that the Government revealed his

previously anonymized identity as a result of United

States v. Buryakov, No. 15-cr-73, 2016 WL 4417889

(S.D.N.Y. May 19, 2016). In that case, the FBI filed

documents indicating that the defendant, a Russian

intelligence agent, discussed the attempted recruiting

57a

of “Male-1” as an intelligence asset. Two news outlets

later reported that “Male-1” was Carter Page.

Testimony of Carter Page Before the H. Permanent

Select Comm. on Intel., 115th Cong. 16 nn. 31–32

(2017), https://perma.cc/74C9-RWZ9. The second

claim goes to Page’s belief that the Government leaked

the existence of the FISA surveillance to the

Washington Post. 10 Neither pertains to Page’s Patriot

Act claim, which instead focuses on the Government’s

use of FISA-obtained information in the application

renewal process. Even considering the May 2017

letter—which I do not believe we should—it helps the

Government not at all, as nothing in the letter

indicates Page’s awareness of his Patriot Act claim

more than two years before his administrative filing.

3. The Merits

Although I believe that Page’s Patriot Act claim is

timely, I also believe he has forfeited it. Recall, FISA

§ 1806(a) provides that “[n]o information acquired

from an electronic surveillance pursuant to [FISA]

may be used or disclosed by Federal officers or

employees except for lawful purposes.” 50 U.S.C.

10 The Government, for its part, draws a different inference. It

relies on the May 2017 letter and other evidence extrinsic to the

complaint as indicia that Page suspected numerous “errors and

omissions in the FISA applications,” including “about the socalled Steele dossier.” Gov’t Br. 16–17. In other words, the

Government’s evidentiary support goes to Page’s knowledge

about the lawfulness of the surveillance. But as the Government

itself argues elsewhere, Page’s claim focuses on the use or

disclosure of FISA information for an unlawful purpose. Nothing

in the Washington Post’s reporting, the May 2017 letter or the

Government’s other evidence supports a claim that the

Government misused the information it acquired.

58a

§ 1806(a). In district court, Page argued that the

Government “violated the PATRIOT Act because [it]

knowingly used the unlawfully obtained” FISA

information in its renewal applications. Page v.

Comey, 628 F. Supp. 3d 103, 134 (D.D.C. 2022). As the

district court correctly explained, Page mistakenly

conflated §§ 1806(a) and 1809(a); that is, Page alleged

that the Government disclosed information that was

“acquired through unauthorized surveillance” when

his Patriot Act claim requires that “FISA information

[be] used or disclosed . . . for an unlawful purpose.” Id.

at 134–35. On appeal, Page now alleges that the

“FISA-acquired information was” put to the “unlawful

end of misleading the FISC.” Blue Br. 81 (internal

alterations omitted). His theory works like this. The

Justice Department lacked probable cause when it

obtained at least the third and fourth FISA warrants.

These warrants nevertheless issued because of the

Government’s duplicity during the application

process. And because FISA-derived information was

used to support the flawed probable cause finding,

that information was put to an unlawful purpose. Id.

at 81–82. The argument is both forfeited and

meritless. An appellant “forfeits an argument by

failing to press it in district court.” Government of

Manitoba v. Bernhardt, 923 F.3d 173, 179 (D.C. Cir.

2019). Page’s complaint does not assert the legal

theory that he now advances on appeal. His district

court briefs do not touch on the argument. And the

district court did not pass on its merits.

Were the argument preserved, Page’s Patriot Act

claim would fail on the merits. As Page himself

asserts, FISA-acquired information was put to a

59a

quintessentially lawful purpose: disclosure to the

FISC. Page argues that because the totality of the

evidence did not support probable cause, the

Government’s use of FISA evidence to obtain a

warrant was itself an unlawful purpose. But the

Government’s duty under FISA is to disclose its

evidence to the FISC judges. Granted, the

Government cannot “mislead [the FISC] by including

[false] information . . . or . . . omit[ting] material

information.” Blue Br. 82. But the FISA information

submitted to the FISC did neither. Page’s challenge is

not to the Government’s lawful use of FISA

information but to its unlawful omission of non-FISA

information. He does not allege that the Government

(as opposed to the individual defendants) used FISAderived information outside the warrant renewal

process. He does not allege that using FISA-derived

information to apply for a warrant constitutes an

unlawful purpose. He does not allege that the

Government manipulated, altered or in any way

obfuscated the contents of the FISA-derived

information. What he alleges is that the Government

should have included additional information alongside

the FISA-derived information, which would have led

the FISC to deny the Government’s warrant renewal

applications. In other words, his grievance is not with

the Government’s “use of the collected information”

but with its “collection of the information itself.” AlHaramain Islamic Found., Inc. v. Obama, 705 F.3d

845, 853 (9th Cir. 2012) (explaining that such claims

must be brought against individual defendants under

FISA rather than against the Government through the

Patriot Act). I therefore agree with the majority that

60a

Page’s Patriot Act claim fails but not based on

untimeliness.

C. FISA Section 1809(a)(2)

Finally, I do not join the majority’s holding that

Page’s § 1809(a)(2) claim is untimely. I also believe

that Page has stated a plausible § 1809(a)(2) claim and

would therefore reverse the district court’s dismissal

of this claim.

1. The Statute of Limitations

Page’s two FISA claims allege two legally distinct

injuries that can accrue at different times. Recall,

Page pleaded two claims under FISA. First, he alleged

that the individual defendants “intentionally

engage[d] in [unauthorized] electronic surveillance

under color of law.” 50 U.S.C. § 1809(a)(1). The injury

that gives rise to this claim is the act of surveillance.

Second, he alleged that the individual defendants

“disclose[d] or use[d] information obtained under color

of law by electronic surveillance, knowing or having

reason to know that the information was obtained

through [unauthorized] electronic surveillance.” Id.

§ 1809(a)(2). The injury that gives rise to this claim is

not the act of surveillance but the disclosure or use of

information obtained through surveillance.

The majority devotes only minimal attention to

explaining why Page’s § 1809(a)(2) claim is timebarred. In its view:

The [Washington Post] article [] reported

that the FBI had renewed the initial

warrant “more than once,” JA097, thereby

informing readers, including Page, that the

61a

FBI had submitted multiple warrant

renewal applications. FISA requires

warrant renewal applications to describe

information gathered from previous

surveillance . . . . The statute’s command

plus the Post report of repeated renewals

sufficed to put Page on notice[.]

Maj. Op. 19–20. With respect, I believe that recitation

misreads the statute, the record and the procedural

posture. The majority ascribes to Page a

comprehensive knowledge of FISA’s provisions. But

nothing in the Washington Post’s reporting would

alert Page—or any reasonable reader—to the

Government’s use or disclosure of FISA-derived

information. My colleagues’ rejection of Page’s

§ 1809(a)(2) claim is particularly glaring at the motion

to dismiss stage, when our duty is to “assume the truth

of [Page’s] factual allegations and draw all reasonable

inferences in h[is] favor.” Mills, 105 F.4th at 395.

The Washington Post article quotes unnamed

Government officials as asserting that the FISA

applications to surveil Page were “renewed more than

once by the FISA court.” JA97. Page’s § 1809(a)(2)

claim turns, in part, on his assertion that the

Government used or disclosed FISA-derived

information in its three surveillance renewal

applications. Page does not know this for certain—nor

do we, as the partially declassified renewal

applications retain vast redactions—but he suggests

that it is likely because FISA requires renewal

applications to contain “a statement of the facts

concerning all previous applications that have been

made . . . and the action taken on each previous

62a

application.” 50 U.S.C. § 1804(a)(8). My colleagues

thus conclude that once Page read the Post article and

learned that the surveillance warrants had been

renewed, he was aware of his § 1809(a)(2) injury per

his own theory. 11 Again, with respect, I believe that

conclusion does not follow.

Under the discovery rule, a plaintiff’s claim

accrues “when the plaintiff discovers, or with due

diligence should have discovered, the injury that forms

the basis for the claim.” Petrella, 572 U.S. at 670 n.4

(internal quotations omitted). In other words, accrual

11 The majority also relies on Page’s statements in a May 22,

2017 letter to the House Permanent Select Committee on

Intelligence. Maj. Op. 20. In addition to my concerns noted supra

II.B.2., this evidence is patently forfeited and likely waived. The

Government—but not the individual defendants—raised the

letter before us. Compare Gov’t Br. 16–18 with Red Br. 54–55.

Because it is the defendants’ burden to prove their affirmative

defense and because a statute of limitations defense is subject to

ordinary rules of forfeiture and waiver, see John R. Sand &

Gravel Co. v. United States, 552 U.S. 130, 133 (2008), Page’s

congressional testimony cannot support the individual

defendants’ limitations defense. The majority offers no

justification for its use of the letter other than noting that a court

may take judicial notice of matters not subject to reasonable

dispute. Maj. Op. 20–21 n.5. But judicial notice does not allow us

to venture outside the four corners of the complaint on a motion

to dismiss to rely on evidence the defendants themselves

forfeited. And this evidence is more than forfeited. At oral

argument, counsel for the individual defendants was asked why

he had not raised Page’s public statements made between April

and November 2017; counsel disclaimed any reliance on these

statements. See Oral Arg. Tr. 52:15–53:11. Counsel’s “intentional

relinquishment” of any reliance on the May 2017 letter

constitutes a waiver. Kontrick v. Ryan, 540 U.S. 443, 458 n.13

(2004).

63a

may occur through actual or constructive knowledge.

Both bases should fail at this stage.

Section 1804(a) requires the Government to

disclose “all previous [FISA] applications” and, in the

case of surveillance extensions, “a summary statement

of the foreign intelligence information obtained . . . or

a reasonable explanation of the failure to obtain such

information.” 50 U.S.C. § 1804(a)(8), (11) (emphasis

added). In other words, the statute plainly

contemplates that a renewal application may not

disclose FISA-derived information. For example, if the

Government tries but fails to install a bugging device

on a target’s phone within the statutorily prescribed

deadline, see id. § 1805(d), it could renew its

application without disclosing or using “information

obtained under color of law by electronic surveillance.”

Id. § 1809(a)(2).

To conclude that Page had actual knowledge of his

injury at the time of the Washington Post article, we

must infer that Page (i) read the one line in the entire

article that discussed renewal applications, (ii) read

the FISA statute, (iii) found the precise portion of the

statute addressing applications to the FISC and (iv)

ascertained from the text’s oblique language that the

Government used FISA-derived information in its

warrant reauthorization requests. That is one

inferential leap too many, especially at the dismissal

stage. Page is a layman—not a lawyer—and the entire

FISA process occurs behind closed doors. 12 Even now,

12 My colleagues gesture at Page’s “multiple advanced degrees”

as somehow justifying their stringent treatment of his claim. Maj.

Op. 19. They do not explain how Page’s resume provides any

insight into the ins and outs of FISA. But even taking their point

64a

Page can only speculate about the contents of the FISA

renewal applications because they have been only

partially declassified. The evide

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