On October 4, 2004, a practicing lawyer and his family members filed a lawsuit in the U.S. District Court for the District of Oregon against the Department of Justice and the Federal Bureau of Investigation (FBI), under Bivens and 50 U.S.C §§ 1804 and 1823 (electronic surveillance and physical searches under the Foreign Intelligence Surveillance Act (FISA)). The plaintiffs, represented by private counsel, asked the court for injunctive and declaratory relief, alleging that the defendants conducted unlawful arrest, imprisonment, searches and seizures. The plaintiffs also alleged that the defendants violated the Privacy Act, 5 U.S.C. § 552a by illegally leaking information and that portions of the Patriot Act are unconstitutional. The plaintiffs sought return of improperly seized property.

This case is based on the following background. On March 11, 2004, terrorists' bombs exploded on commuter trains in Madrid, Spain. The FBI obtained photographs of fingerprints from the bombing incident. The FBI made a wrongful match of a fingerprint taken from near the Madrid bombing site to that of the plaintiff, supposedly in part because the plaintiff was a Muslim. Despite numerous signs that the match was erroneous, the FBI arrested and imprisoned the plaintiff from May 6, 2004, through May 20, 2004. After news reports revealed that the Madrid fingerprint matched an Algerian citizen, the plaintiff was released from prison.

On November 29, 2006, the District Court (Judge Aiken) signed a stipulated settlement agreement reached by the parties. The agreement limited plaintiffs' remaining claims to a facial challenge to FISA, in which the relief available was a declaratory judgment of the unconstitutionality of these statues. On December 6, 2006, plaintiffs filed an amended complaint for declaratory judgment and sought removal of all illegally seized materials under government possession.

Defendants argued that the Court lacked jurisdiction because the plaintiffs lacked standing to seek declaratory relief. On September 26, 2007, the District Court (Judge Aiken) found that the plaintiffs' claims alleging an on-going 'case' or 'controversy' provided the Court jurisdiction. The Court concluded that 50 U.S.C. §§ 1804 and 1824 of FISA, as amended by the Patriot Act, are unconstitutional as they violate the Fourth Amendment of the U.S. Constitution. Accordingly, plaintiffs' motion for summary judgment for declaratory relief was granted.

On October 9, 2007, defendants filed an appeal to the U.S. Court of Appeals for the 9th Circuit. On March 24, 2010, the Appeals Court vacated the District Court's summary judgment on the grounds that the plaintiffs lacked standing because the only relief that would address the alleged Fourth Amendment violation would be injunctive relief. However, the plaintiffs were only entitled to declaratory judgment pursuant to the settlement agreement.

On November 1, 2010, the U.S. Supreme Court denied the Petition for Writ of Certiorari.

David Cho - 10/05/2014


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