Fazaga v. Fed. Bureau of Investigation, 12-56867

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Parties: YASSIR FAZAGA; ALI UDDIN MALIK; YASSER ABDELRAHIM, Plaintiffs-Appellees, v. FEDERAL BUREAU OF INVESTIGATION; CHRISTOPHER A. WRAY, Director of the Federal Bureau of Investigation, in his official capacity; PAUL DELACOURT, Assistant Director in Charge, Federal Bureau of Investigation's Los Angeles Division, in his official capacity; PAT ROSE; KEVIN ARMSTRONG; PAUL ALLEN, Defendants, and BARBARA WALLS; J. STEPHEN TIDWELL, Defendants-Appellants. YASSIR FAZAGA; ALI UDDIN MALIK; YASSER ABDELRAHIM, Plaintiffs-Appellees, v. FEDERAL BUREAU OF INVESTIGATION; CHRISTOPHER A. WRAY, Director of the Federal Bureau of Investigation, in his official capacity; PAUL DELACOURT, Assistant Director in Charge, Federal Bureau of Investigation's Los Angeles Division, in his official capacity; J. STEPHEN TIDWELL; BARBARA WALLS, Defendants, and PAT ROSE; KEVIN ARMSTRONG; PAUL ALLEN, Defendants-Appellants. YASSIR FAZAGA; ALI UDDIN MALIK; YASSER ABDELRAHIM, Plaintiffs-Appellants, v. FEDERAL BUREAU OF INVESTIGATION; CHRISTOPHER A. WRAY, Director of the Federal Bureau of Investigation, in his official capacity; PAUL DELACOURT, Assistant Director in Charge, Federal Bureau of Investigation's Los Angeles Division, in his official capacity; J. STEPHEN TIDWELL; BARBARA WALLS; PAT ROSE; KEVIN ARMSTRONG; PAUL ALLEN; UNITED STATES OF AMERICA, Defendants-Appellees.
• Docket Number: No. 12-56874,No. 12-56867,No. 13-55017,12-56867,12-56874,13-55017
• Decision Date: 28 February 2019

YASSIR FAZAGA; ALI UDDIN MALIK;
YASSER ABDELRAHIM, Plaintiffs-Appellees,
v.
FEDERAL BUREAU OF INVESTIGATION; CHRISTOPHER A. WRAY,
Director of the Federal Bureau of Investigation, in his official capacity;
PAUL DELACOURT, Assistant Director in Charge, Federal Bureau of Investigation's
Los Angeles Division, in his official capacity; PAT ROSE;
KEVIN ARMSTRONG; PAUL ALLEN, Defendants,
and
BARBARA WALLS; J. STEPHEN TIDWELL, Defendants-Appellants.

YASSIR FAZAGA; ALI UDDIN MALIK;
YASSER ABDELRAHIM, Plaintiffs-Appellees,
v.
FEDERAL BUREAU OF INVESTIGATION; CHRISTOPHER A. WRAY,
Director of the Federal Bureau of Investigation, in his official capacity;
PAUL DELACOURT, Assistant Director in Charge,
Federal Bureau of Investigation's Los Angeles Division, in his official capacity;
J. STEPHEN TIDWELL; BARBARA WALLS, Defendants,
and
PAT ROSE; KEVIN ARMSTRONG; PAUL ALLEN, Defendants-Appellants.

YASSIR FAZAGA; ALI UDDIN MALIK;
YASSER ABDELRAHIM, Plaintiffs-Appellants,
v.
FEDERAL BUREAU OF INVESTIGATION; CHRISTOPHER A. WRAY,
Director of the Federal Bureau of Investigation, in his official capacity;
PAUL DELACOURT, Assistant Director in Charge,
Federal Bureau of Investigation's Los Angeles Division,
in his official capacity; J. STEPHEN TIDWELL;
BARBARA WALLS; PAT ROSE; KEVIN ARMSTRONG;
PAUL ALLEN; UNITED STATES OF AMERICA, Defendants-Appellees.

No. 12-56867
No. 12-56874
No. 13-55017

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted: December 7, 2015
Amended July 20, 2020
February 28, 2019

FOR PUBLICATION

D.C. No. 8:11-cv-00301-CJC-VBK

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ORDER AND AMENDED OPINION

Appeal from the United States District Court for the Central District of California
Cormac J. Carney, District Judge, Presiding

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Argued and Submitted December 7, 2015 Pasadena, California

Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges and George Caram Steeh III,^* District Judge.

Order;
Opinion by Judge Berzon;
Concurrence in Order by Judges Gould and Berzon;
Statement by Judge Steeh;
Dissent to Order by Judge Bumatay

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SUMMARY^**

Constitutional Law / Foreign Intelligence Surveillance Act

The panel filed an amended opinion affirming in part and reversing in part the district court's judgment in favor of the United States, the FBI, and federal officials in a putative class action alleging that an FBI investigation involved unlawful searches and anti-Muslim discrimination; denied a petition for panel rehearing; and denied on behalf of the court a petition for rehearing en banc.

Plaintiffs are three Muslim residents of Southern California who alleged that the FBI paid a confidential informant to conduct a covert surveillance program that gathered information about Muslims based solely on their religious identity. Plaintiffs asserted eleven claims, which fell into two categories: claims alleging unconstitutional searches, and claims alleging unlawful religious discrimination. The district court dismissed all but one of plaintiffs' claims on the basis of the state secrets privilege, and allowed only the Foreign Intelligence Surveillance Act ("FISA") claim against the FBI Agent Defendants to proceed.

The panel held that some of the claims the district court dismissed on state secret grounds should not have been dismissed outright. The panel further held that the district court should have reviewed any state secrets evidence necessary for a determination of whether the alleged

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surveillance was unlawful following the secrecy-protective procedure set forth in FISA. See 50 U.S.C. § 1806(f).

Section 110 of FISA, codified at 50 U.S.C. § 1810, creates a private right of action for an individual subjected to electronic surveillance in violation of FISA's procedures. Concerning the FISA claim against the FBI Agent Defendants, the panel considered three categories of audio and video surveillance called in the complaint: recordings made by the FBI informant of conversations to which he was a party; recordings made by the informant of conversations to which he was not a party; and recordings made by devices planted by FBI agents. The panel concluded that the FBI Agent Defendants were entitled to qualified immunity as to the first two categories of surveillance. As to the third category of surveillance, the panel held that Agents Allen and Armstrong were not entitled to qualified immunity, but Agents Tidwell, Walls, and Rose were entitled to dismissal as to this category of surveillance because plaintiffs did not plausibly allege their involvement in this category of surveillance.

The panel next addressed the remaining claims, which were all dismissed pursuant to the state secrets privilege. First, the panel held that in determining sua sponte that particular claims warranted dismissal under the state secrets privilege, the district court erred. Second, the panel held that in enacting FISA, Congress displaced the common law dismissal remedy created by the United States v. Reynolds, 345 U.S. 1 (1953), state secrets privilege as applied to electronic surveillance within FISA's purview. The panel held that FISA's § 1806(f) procedures were to be used when an aggrieved person affirmatively challenges, in any civil case, the legality of electronic surveillance or its use in

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litigation, whether the challenge is under FISA itself, the Constitution, or any other law. Third, the panel held that the plaintiffs were considered "aggrieved" for purposes of FISA.

The panel next considered whether the claims other than the FISA § 1810 claim must be dismissed for reasons other than the state secrets privilege, limited to reasons raised by the defendants' motions to dismiss.

Addressing plaintiffs' Fourth Amendment search claims, the panel first held that the expungement relief sought by plaintiffs - the expungement of all records unconstitutionally obtained and maintained - was available under the Constitution to remedy the alleged constitutional violations. Because the government raised no other argument for dismissal of the Fourth Amendment injunctive relief claim, it should not have been dismissed. Second, the panel held that in light of the overlap between plaintiffs' Bivens claim and the narrow range of the remaining FISA claims against the Agent Defendants that can proceed, it was not clear whether plaintiffs would continue to press this claim. The panel declined to address whether plaintiffs' Bivens claim remained available after the Supreme Court's decision in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), and held that on remand the district court may determine whether a Bivens remedy is appropriate for any Fourth Amendment claim against the FBI Agent Defendants.

Addressing plaintiffs' claims arising from their allegations that they were targeted for surveillance solely because of their religion, the panel first held that the First Amendment and Fifth Amendment injunctive relief claims against the official-capacity defendants may go forward. Second, concerning plaintiffs' Bivens claims seeking

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monetary damages directly under the First Amendment's Establishment and Free Exercise Clauses and the equal protection component of the Fifth Amendment's Due Process Clause, the panel concluded that the Privacy Act and the Religious Freedom and Restoration Act ("RFRA"), taken together, provided an alternative remedial scheme for some, but not all, of their Bivens claims. As to the remaining Bivens claims, the panel remanded to the district court to determine whether a Bivens remedy was available in light of the Supreme Court's decision in Abbasi. Third, concerning plaintiffs' 42 U.S.C. § 1985(c) claims, alleging that the Agent Defendants conspired to deprive plaintiffs of their First and Fifth Amendment constitutional rights, the panel held that under Abassi, intracorporate liability was not clearly established at the time of the events in this case and the FBI Agent Defendants were therefore entitled to qualified immunity from liability under § 1985(c). The panel affirmed the district court's dismissal on this ground. Fourth, concerning plaintiffs' claims that the FBI Agent Defendants and Government Defendants violated RFRA by substantially burdening plaintiffs' exercise of religion, and did so without a compelling government interest without the least restrictive means, the panel held that it was not clearly established in 2006 or 2007 that defendants' covert surveillance violated plaintiffs' freedom of religion protected by RFRA. The panel affirmed the district court's dismissal of the RFRA claim as to the Agent Defendants because they were not on notice of a possible RFRA violation. Because the Government Defendants were not subject to the same qualified immunity analysis and made no arguments in support of dismissing the RFRA claim, other than the state secrets privilege, the panel held that the complaint stated a RFRA claim against the Government Defendants. Fifth, concerning plaintiffs' allegation that the FBI violated the Privacy Act by collecting

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and maintaining records describing how plaintiff exercised their First Amendment rights, the panel held that plaintiffs failed to state a claim because the sole requested remedy - injunctive relief - is unavailable for a claimed violation of 5 U.S.C. § 552a(e)(7). Sixth, concerning plaintiffs' claims under the Federal Tort Claims Act ("FTCA"), the panel held that the FTCA judgment bar provision had no application in this case. The panel further held that it could not determine the applicability of the FTCA's discretionary function exception at this stage in the litigation, and that the district court may make a determination of applicability on remand. The panel declined to discuss whether plaintiffs substantively stated claims as to the state laws underlying the FTCA claim would be premature.

The panel remanded for further proceedings. The panel held that on remand, the FISA and Fourth Amendment claims, to the extent the panel held they were validly pleaded in the complaint and not subject to qualified immunity,...