Fazaga v. Fed. Bureau of Investigation

916 F.3d 1202

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,andBarbara 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,andPat 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, Ninth Circuit.

Argued and Submitted December 7, 2015 Pasadena, California

Filed February 28, 2019

Carl J. Nichols (argued) and Howard M. Shapiro, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.; Katie Moran, Wilmer Cutler Pickering Hale and Dorr LLP, Los Angeles, California; for Defendants-Appellants/Cross-Appellees Barbara Walls and J. Stephen Tidwell.

Alexander H. Cote (argued), Amos A. Lowder, Angela M. Machala, and David C. Scheper, Scheper Kim & Harris LLP, Los Angeles, California, for Defendants-Appellants/Cross-Appellees Pat Rose, Paul Allen, and Kevin Armstrong.

Ahilan Arulanantham (argued), Peter Bibring (argued), and Catherine A. Wagner, ACLU Foundation of Southern California, Los Angeles, California; Ameena Mirza Qazi and Fatima Dadabhoy, Council on American-Islamic Relations, Anaheim, California; Dan Stormer and Mohammad Tajsar, Hadsell Stormer Keeny & Renick LLP, Pasadena, California; for Plaintiffs-Appellees/Cross-Appellants.

Douglas N. Letter (argued), Daniel Tenny, and Mark B. Stern, Appellate Staff; Stephanie Yonekura, Acting United States Attorney; Civil Division, United States Department of Justice, Washington, D.C., for Defendants-Appellees Federal Bureau of Investigation, Christopher A. Wray, and Paul Delacourt.

Richard R. Wiebe, Law Office of Richard R. Wiebe, San Francisco, California; Thomas E. Moore III, Royse Law Firm PC, Palo Alto, California; David Greene, Andrew Crockner, Mark Rumold, James S. Tyre, Kurt Opsahl, Lee Tien, and Cindy Cohn, Electronic Frontier Foundation, San Francisco, California; for Amicus Curiae Electronic Frontier Foundation.

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

BERZON, Circuit Judge:

TABLE OF CONTENTS

INTRODUCTION...1210

BACKGROUND...1211

I. Factual Background...1212

II. Procedural History...1214

DISCUSSION...1216

I. The FISA Claim Against the Agent Defendants...1216

A. Recordings of Conversations to Which Monteilh Was a Party...1219

B. Recordings of Conversations in the Mosque Prayer Hall to Which Monteilh Was Not a Party...1220

C. Recordings Made by Planted Devices...1224

II. The State Secrets Privilege and FISA Preemption...1225

A. The State Secrets Privilege...1226

B. The District Court’s Dismissal of the Search Claims Based on the State Secrets Privilege...1228

C. FISA Displacement of the State Secrets Privilege...1230

D. Applicability of FISA’s § 1806(f) Procedures to Affirmative Legal Challenges to Electronic Surveillance...1234

E. Aggrieved Persons...1238

III. Search Claims...1239

A. Fourth Amendment Injunctive Relief Claim Against the Official-Capacity Defendants...1239

B. Fourth Amendment Bivens Claim Against the Agent Defendants...1241

IV. Religion Claims...1242

A. First Amendment and Fifth Amendment Injunctive Relief Claims Against the Official-Capacity Defendants...1242

B. First Amendment and Fifth Amendment Bivens Claims Against the Agent Defendants...1242

C. 42 U.S.C. § 1985(3) Claims Against the Agent Defendants...1245

D. Religious Freedom Restoration Act Claim Against the Agent Defendants and Government Defendants...1246

E. Privacy Act Claim Against the FBI...1248

F. FTCA Claims...1249

1. FTCA Judgment Bar...1250

2. FTCA Discretionary Function Exception...1250

V. Procedures on Remand...1251

CONCLUSION...1253

INTRODUCTION

Three Muslim residents of Southern California allege that, for more than a year, the Federal Bureau of Investigation ("FBI") paid a confidential informant to conduct a covert surveillance program that gathered information about Muslims based solely on their religious identity. The three plaintiffs filed a putative class action against the United States, the FBI, and two FBI officers in their official capacities ("Government" or "Government Defendants"), and against five FBI agents in their individual capacities ("Agent Defendants"). Alleging that the investigation involved unlawful searches and anti-Muslim discrimination, they pleaded eleven constitutional and statutory causes of action.¹

The Attorney General of the United States asserted the state secrets privilege with respect to three categories of evidence assertedly at issue in the case, and the Government moved to dismiss the discrimination claims pursuant to that privilege. The Government expressly did not move to dismiss the Fourth Amendment and Foreign Intelligence Surveillance Act ("FISA") unlawful search claims based on the privilege. Both the Government and the Agent Defendants additionally moved to dismiss Plaintiffs’ discrimination and unlawful search claims based on arguments other than the privilege.

The district court dismissed all but one of Plaintiffs’ claims on the basis of the state secrets privilege—including the Fourth Amendment claim, although the Government Defendants had not sought its dismissal on privilege grounds. The district court allowed only the FISA claim against the Agent Defendants to proceed. Plaintiffs appeal the dismissal of the majority of their claims, and the Agent Defendants appeal the denial of qualified immunity on the FISA claim.

We conclude that some of the claims dismissed on state secrets grounds should not have been dismissed outright. Instead, the district court should have reviewed any state secrets evidence necessary for a determination of whether the alleged surveillance was unlawful following the secrecy-protective procedure set forth in FISA. See 50 U.S.C. § 1806(f). After addressing Defendants’ other arguments for dismissing Plaintiffs’ claims, we conclude that some of Plaintiffs’ allegations state a claim while others do not. Accordingly, we remand to the district court for further proceedings on the substantively stated claims.

BACKGROUND

At this stage in the litigation, we "construe the complaint in the light most favorable to the plaintiff[s], taking all [their] allegations as true and drawing all reasonable inferences from the complaint in [their] favor." Doe v. United States , 419 F.3d 1058, 1062 (9th Cir. 2005). "Conclusory allegations and unreasonable inferences, however, are insufficient to defeat a motion to dismiss." Sanders v. Brown , 504 F.3d 903, 910 (9th Cir. 2007).

Plaintiffs are three Muslims who were residents of Southern California: Sheikh Yassir Fazaga, Ali Uddin Malik, and Yasser AbdelRahim. Fazaga was, at the times relevant to this litigation, an imam at the Orange County Islamic Foundation ("OCIF"), a mosque in Mission Viejo, California. Malik and AbdelRahim are practicing Muslims who regularly attended religious services at the Islamic Center of Irvine ("ICOI").

The complaint sought relief against the United States, the FBI, and two federal officials named in their official capacities, as well as five individual Agent Defendants—Kevin Armstrong, Paul Allen, J. Stephen Tidwell, Barbara Walls, and Pat Rose—named in their individual capacities. Armstrong and Allen were FBI Special Agents assigned to the Orange County areas; Tidwell was the Assistant Director in Charge of the FBI’s Los Angeles Field Office from August 2005 to December 2007; Walls was the Special Agent in Charge of the FBI’s Santa Ana branch office, a satellite office of the FBI’s Los Angeles field office; and Rose was a Special Agent assigned to the FBI’s Santa Ana branch office.

Because of the sensitivity of the issues in this case, we particularly stress the usual admonition that accompanies judicial determination on motions to dismiss a complaint: the facts recited below come primarily from Plaintiffs’ allegations in their complaint.² The substance of those allegations has not been directly addressed by the defendants. At this point in the litigation, the truth or falsity of the allegations therefore is entirely unproven.

I. Factual Background

For at least fourteen months in 2006 and 2007, the FBI paid a confidential informant named Craig Monteilh to gather information as part of a counterterrorism investigation known as Operation Flex. Plaintiffs allege that Operation Flex was a "dragnet surveillance" program, the "central feature" of which was to "gather information on Muslims."³

At some point before July 2006, Stephen Tidwell, then the Assistant Director in Charge of the FBI’s Los Angeles Field Office, authorized first the search for an informant and later the selection of Monteilh as that informant. Once selected, Monteilh was supervised by two FBI handlers, Special Agents Kevin Armstrong and Paul Allen.

In July 2006, Monteilh began attending ICOI. As instructed by Allen and Armstrong, Monteilh requested a meeting with ICOI’s imam, represented that he wanted to convert to Islam, and later...