Read the original article: Summary: Ninth Circuit Declines to Rehear State Secrets Case
On July 20, the Ninth Circuit declined to rehear en banc Fazaga v. FBI, a case concerning the application of the state secrets privilege and procedures laid out in the Foreign Intelligence Surveillance Act (FISA) that allows for the protected review of privileged government evidence during litigation. A panel of the Ninth Circuit had previously decided the case in February 2019. The following summary focuses primarily on the Ninth Circuit’s findings in relation to the state secrets privilege and FISA.
Factual Background
Fazaga was a putative class action alleging that an FBI investigation had involved unlawful searches and anti-Muslim discrimination, filed against the United States, the FBI, two government officials in their official capacities and five FBI agents in their individual capacities. The plaintiffs, Yassir Fazaga, Ali Uddin Malik, and Yasser Abdelrahim, alleged that the FBI surveilled them solely because of their religious identity. Specifically, for at least 14 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. The plaintiffs claimed that surveillance by Monteilh and the FBI resulted in searches that violated FISA, the Fourth Amendment and the First Amendment’s prohibition on unlawful religious discrimination.
More specifically, the plaintiffs made 11 different claims, all in response to the three categories of audio and video surveillance alleged in the complaint: recordings made by Monteilh of conversations to which he was a party; recordings made by Monteilh of conversations to which he was not a party; and recordings made by devices planted by FBI agents in Fazaga’s office and Abdelrahim’s house, car and phone. To clarify the courts’ different handling of the different claims, the following chart sets out the 11 claims along with the cause of action, the defense put forward by the defendants, and the outcome at the district and appellate levels. The defenses listed were made by the government unless indicated otherwise.
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Claims |
Cause of Action |
Defenses |
Outcome |
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Unlawful discrimination on the basis of, or burdens on, or abridgement of the rights to, religion |
Violation of the First Amendment Establishment Clause under Bivens and 28 U.S.C. § 1331 (against all defendants except the FBI and United States) |
State secrets privilege |
District court dismissed in favor of all defendants on grounds of state secrets privilege. Ninth Circuit remanded for consideration of whether Bivens remedy is available; Privacy Act and Religious Freedom Restoration Act (RFRA) preclude some Bivens claims. |
|
Unlawful discrimination on the basis of, or burdens on, or abridgement of the rights to, religion |
Violation of the First Amendment Establishment Clause under 42 U.S.C. § 1985(3) and 28 U.S.C. § 1343 (against the agent defendants) |
State secrets privilege |
District court dismissed in favor of all defendants on grounds of state secrets privilege. Ninth Circuit affirmed dismissal of § 1985(3) claims on grounds of qualified immunity. |
|
Unlawful discrimination on the basis of, or burdens on, or abridgement of the rights to, religion |
Violation of the First Amendment Free Exercise Clause under Bivens and 28 U.S.C. § 1331 (against all defendants except the FBI and United States) |
State secrets privilege |
District court dismissed in favor of all defendants on grounds of state secrets privilege. Ninth Circuit remanded for consideration whether Bivens remedy is available; Privacy Act and RFRA preclude some Bivens claims. |
|
Unlawful discrimination on the basis of, or burdens on, or abridgement of the rights to, religion |
Violation of the First Amendment Free Exercise Clause under 42 U.S.C. § 1985(3) and 28 U.S.C. § 1343 (against agent defendants) |
State secrets privilege |
District court dismissed in favor of all defendants on grounds of state secrets privilege. Ninth Circuit affirmed dismissal of § 1985(3) claims on grounds of qualified immunity. |
|
Unlawful discrimination on the basis of, or burdens on, or abridgement of the rights to, religion |
Violation of RFRA, 42 U.S.C. § 2000bb-1 (against all defendants) |
State secrets privilege; qualified immunity (agent defendants only) |
District court dismissed in favor of all defendants on grounds of state secrets privilege. Ninth Circuit affirmed dismissal in favor of agent defendants on grounds of qualified immunity; reversed dismissal for government and remanded. |
|
Unlawful discrimination on the basis of, or burdens on, or abridgement of the rights to, religion |
Violation of the Fifth Amendment Equal Protection Clause under Bivens and 28 U.S.C. § 1331 (against all defendants except the FBI and United States) |
State secrets privilege |
District Court dismissed in favor of all defendants on grounds of state secrets privilege. Ninth Circuit remanded for consideration whether Bivens remedy is available; Privacy Act and RFRA preclude some Bivens claims. |
|
Unlawful discrimination on the basis of, or burdens on, or abridgement of the rights to, religion |
Violation of the Fifth Amendment Equal Protection Clause under 42 U.S.C. § 1985(3) and 28 U.S.C. § 1343 (against agent defendants) |
State secrets privilege |
District court dismissed in favor of all defendants on grounds of state secrets privilege. Ninth Circuit affirmed dismissal of Advertise on IT Security News. Read the original article: Summary: Ninth Circuit Declines to Rehear State Secrets Case
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