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Case Name Fazaga v. Federal Bureau of Investigation NS-CA-0030
Docket / Court 8:11-cv-00301 ( C.D. Cal. )
State/Territory California
Case Type(s) National Security
Special Collection Foreign Intelligence Surveillance Act -- All Matters
Attorney Organization ACLU of Southern California
Council on American-Islamic Relations (CAIR)
Hadsell, Stormer & Renick
Case Summary
The Foreign Intelligence Surveillance Act (FISA) requires the government to obtain a warrant from the Foreign Intelligence Surveillance Court (FISC) before it may conduct any domestic electronic surveillance to acquire foreign intelligence information. The warrant applications are made ex parte and ... read more >
The Foreign Intelligence Surveillance Act (FISA) requires the government to obtain a warrant from the Foreign Intelligence Surveillance Court (FISC) before it may conduct any domestic electronic surveillance to acquire foreign intelligence information. The warrant applications are made ex parte and must include a sworn statement by a federal officer of the facts and circumstances relied upon to justify the government's belief that the target of surveillance is a foreign power or an agent of a foreign power. Once a FISC judge receives a warrant application, the judge can order approval of the surveillance only if the judge finds that there is probable cause to believe that the target of the electronic surveillance is a foreign power or an agent of a foreign power. Because the orders only authorize surveillance up to 90 days, the government must file an application for an extension that meets the same requirements as the initial warrant application and obtain a renewal order from the FISC for continued surveillance. An aggrieved person, which is defined as "a person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance," may bring a FISA claim against any person who committed a FISA violation; the aggrieved person is entitled to recover actual damages, punitive damages, and reasonable attorney's fees and costs. However, FISA allows a violator to assert as a defense that he "was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order." For the Civil Rights Litigation Clearinghouse collection of FISA matters, see our special collection.

On February 22, 2011, three individuals filed a complaint in the U.S. District Court for the Southern District of California as a putative class action against the Federal Bureau of Investigation (FBI), two FBI officers in their official capacities, and five FBI agents in their individual capacities (agent defendants). The complaint alleged that the FBI used a paid confidential informant to infiltrate several mosques in Southern California and to "indiscriminately collect personal information on hundreds and perhaps thousands of innocent Muslim Americans." The plaintiffs alleged that the FBI used the informant to gather information as part of a counterterrorism investigation known as Operation Flex, which was "a dragnet surveillance" program, the "central feature" of which was to "gather information on Muslims." The plaintiffs sued under 42 U.S.C. § 1985, alleging violations of the First Amendment, the Fourth Amendment, the Fifth Amendment, the Privacy Act (5 U.S.C. § 552a), the Religious Freedom Restoration Act (RFRA) (42 U.S.C. § 2000bb-1), and FISA (50 U.S.C. § 1810). The plaintiffs defined their class as “[a]ll individuals targeted by Defendants for surveillance or information-gathering through the informant and Operation Flex, on account of their religion, and about whom the FBI thereby gathered personally identifiable information," and sought injunctive relief for the individual plaintiffs and the class, and damages for themselves as individuals.

On April 11, 2011, the parties stipulated to defer class certification proceedings until after the parties filed any initial dispositive motions, and United States District Judge Cormac J. Carney approved the stipulation on April 20, 2011. On August 1, 2011 and August 9, 2011, the government and agent defendants, respectively, moved to dismiss the claims on various grounds, including failure to state a claim, qualified immunity, and state secrets privilege. The plaintiffs then filed an amended complaint on September 13, 2011, which the government and agent defendants again moved to dismiss on November 4, 2011 and November 11, 2011.

On August 14, 2012, Judge Carney issued two orders. In one order, Judge Carney dismissed the FISA claim against the government, concluding that Congress did not waive sovereign immunity for damages under that statute. However, Judge Carney permitted the plaintiffs' FISA claim against the agent defendants to proceed, rejecting the agent defendants' claim of qualified immunity. 885 F. Supp. 2d 978. In the other order, Judge Cormac dismissed all the other claims in the case on the basis of state secrets privilege. Judge Cormac found that, based on the classified declarations and supplemental memorandum submitted by the government, the "subject matter of this action, Operation Flex, involves intelligence that, if disclosed, would significantly compromise national security." Since the government would need to rely on the privileged material to defend against the plaintiffs' claims, "the risk of disclosure that further litigation would engender [could not] be averted through protective orders or restrictions on testimony." 884 F. Supp. 2d 1022.

On October 12, 2012, the agent defendants appealed the denial of qualified immunity on the plaintiffs' FISA claim to the Ninth Circuit Court of Appeals. On November 2, 2012, Judge Carney approved the the parties' stipulation to stay all further proceedings related to the remaining FISA claim pending the agent defendants' appeal. On December 3, 2012, Judge Carney entered a partial final judgment, at plaintiffs' request, to allow the plaintiffs to immediately appeal the court's dismissal of the majority of their claims. On January 3, 2013, the plaintiffs appealed their dismissed claims to the Ninth Circuit.

On April 2, 2014, the appeals court granted a joint motion to consolidate both the plaintiffs and agent defendants' appeals. On November 24, 2014, the Electronic Frontier Foundation submitted an amicus brief in support of the plaintiff appellants. On February 28, 2019, a panel of the Ninth Circuit (Marsha S. Berzon and Ronald M. Gould, Circuit Judges and George Caram Steeh III, Senior District Judge) affirmed in part and reversed in part the district court's orders and remanded the case. In analyzing the plaintiffs' FISA claim against the agent defendants, the panel considered separately three categories of audio and video surveillance alleged in the complaint: (1) recordings made by the informant of conversations to which he was party; (2) recordings made by the informant of conversations to which he was not a party; and (3) recordings made by devices planted by FBI agents. The panel found that the agent defendants were entitled to dismissal on qualified immunity grounds as to the first two categories of surveillance. However, as to the third category of surveillance, the court found that two of the agent defendants, who had directly supervised the informant and were responsible for planting the devices, were not entitled to qualified immunity. The other three agent defendants, who generally supervised the other two agent defendants, were entitled to qualified immunity because the complaint did not "plausibly allege their personal involvement with respect to the planted devices." The panel then addressed the remaining claims which had all been previously dismissed pursuant to the state secrets privilege. It held that the district court had erred in determining sua sponte that particular claims warranted dismissal under the state secrets privilege. The panel found that Congress intended FISA to displace the state secrets privilege and the common law dismissal remedy with respect to electronic surveillance. Therefore, FISA procedures, which involves in camera and ex parte review by district courts, rather than a dismissal, were appropriate when "an aggrieved person affirmatively challenges, in any civil case, the legality of electronic surveillance or its use in litigation, whether the challenge is under FISA itself, the Constitution, or any other law." After holding that the state secrets privilege did not warrant dismissal of this litigation in its entirety, the panel remanded the case back to the district court to be analyzed under the FISA procedures. 916 F.3d 1202.

After issuing the opinion, the Ninth Circuit received a request to rehear the case en banc. The measure failed to receive the majority of the votes of the judges on the Ninth Circuit, so the case returned to the District Court for further review.

Judges in favor and opposed to rehearing the case en banc released dissents and concurrences respectively; these were added to the February 2019 opinion in a July 20, 2020 revised opinion. The dissent, written by Judge Patrick Bumatay, feared that replacing the state secrets doctrine with FISA would lead to rampant disclosure of state secrets protected by FISA in cases where electronic surveillance is an issue. Instead, he argued that the two doctrines should coexist, saying that FISA should only come up when a party contests the admissibility of a FISA application or warrant, and the state secrets doctrine should frame analysis in any other context. The concurrence, written by Judge Gould, took issue with the dissent's broad characterization of their opinion. He stated that this was a narrow, remedy-based case, turning on whether a civil case should be dismissed because of confidential information protected under FISA, which is what the District Court did, or if the case could proceed without telling the plaintiffs about the confidential information presented against them through the in camera review process. He stressed that the information would still be protected, just under a different framework than the state secrets doctrine. 965 F.3d 1015.

The defendants filed a petition for a writ of certiorari to the Supreme Court on December 18, 2020. They requested that the Supreme Court review the Ninth Circuit's holding that FISA should replace the state secrets doctrine, and argued that FISA should supersede the state secrets doctrine only in instances when the admissibility of a FISA warrant or application is involved, much like the way Judge Bumatay suggested in his dissent. Responses to the petition are due on January 19, 2020; the case is ongoing.

Lisa Limb - 07/29/2020
Ellen Aldin - 12/21/2020


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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process
Due Process: Substantive Due Process
Establishment Clause
Free Exercise Clause
Freedom of speech/association
Unreasonable search and seizure
Defendant-type
Law-enforcement
Discrimination-basis
Religion discrimination
General
Confidentiality
Failure to supervise
Record-keeping
Records Disclosure
Search policies
Terrorism/Post 9-11 issues
Plaintiff Type
Private Plaintiff
Causes of Action Ex parte Young (federal or state officials)
Ex Parte Young (Federal) or Bivens
Federal Tort Claims Act (FTCA), 28 U.S.C. § 2674
FISA Title I Warrant (Electronic Surveillance), 50 U.S.C. §§ 1801-1812
Religious Freedom Rest. Act/Religious Land Use and Inst. Persons Act (RFRA/RLUIPA)
Defendant(s) Federal Bureau of Investigation
Plaintiff Description Plaintiffs are three Muslim residents of Southern California.
Indexed Lawyer Organizations ACLU of Southern California
Council on American-Islamic Relations (CAIR)
Hadsell, Stormer & Renick
Class action status sought Yes
Class action status granted Pending
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief None yet
Source of Relief None yet
Filed 02/22/2011
Case Ongoing Yes
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
  Fazaga v. FBI
https://www.aclusocal.org/en/cases/fazaga-v-fbi
Date: Feb. 21, 2011
By: ACLU of Southern California
[ Detail ] [ External Link ]

Court Docket(s)
C.D. Cal.
10/09/2020
8:11-cv-00301
NS-CA-0030-9000.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
General Documents
C.D. Cal.
02/22/2011
Class Action Complaint [ECF# 1]
NS-CA-0030-0001.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
C.D. Cal.
04/20/2011
Order Re: Stipulation to Defer Class Certification Proceedings [ECF# 12]
NS-CA-0030-0006.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
C.D. Cal.
09/13/2011
First Amended Complaint (Part 1 of 3) [ECF# 49]
NS-CA-0030-0007.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
C.D. Cal.
09/13/2011
First Amended Complaint (Part 2 of 3) [ECF# 49]
NS-CA-0030-0008.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
C.D. Cal.
09/13/2011
First Amended Complaint (Part 3 of 3) [ECF# 49]
NS-CA-0030-0009.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
C.D. Cal.
08/14/2012
Order Granting Defendants’ Motion to Dismiss Based on the State Secrets Privilege [ECF# 101] (884 F.Supp.2d 1022)
NS-CA-0030-0004.pdf | WESTLAW| LEXIS | Detail
Source: PACER [Public Access to Court Electronic Records]
C.D. Cal.
08/14/2012
Order Granting in Part Defendants' Motions to Dismiss Plaintiffs' FISA Claim [ECF# 102] (885 F.Supp.2d 978)
NS-CA-0030-0005.pdf | WESTLAW| LEXIS | Detail
Source: PACER [Public Access to Court Electronic Records]
U.S. Court of Appeals
11/24/2014
Brief Amicus Curiae of the Electronic Frontier Foundation in Support of Plaintiff-Appellants [Ct. of App. ECF# BL-32]
NS-CA-0030-0003.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
U.S. Court of Appeals
02/28/2019
Opinion [Ct. of App. ECF# BL-1214] (916 F.3d 1202)
NS-CA-0030-0002.pdf | WESTLAW| LEXIS | Detail
Source: PACER [Public Access to Court Electronic Records]
U.S. Court of Appeals
07/20/2020
Opinion (965 F.3d 1015)
NS-CA-0030-0010.pdf | WESTLAW| LEXIS | Detail
Source: Westlaw
U.S. Supreme Court
12/17/2020
Petition for a Writ of Ceritorari
NS-CA-0030-0011.pdf | Detail
Source: Supreme Court website
show all people docs
Judges Berzon, Marsha Siegel (Ninth Circuit) show/hide docs
NS-CA-0030-0002
Bumatay, Patrick Joseph (Ninth Circuit) show/hide docs
NS-CA-0030-0010
Carney, Cormac J. (C.D. Cal.) show/hide docs
NS-CA-0030-0004 | NS-CA-0030-0005 | NS-CA-0030-0006 | NS-CA-0030-9000
Gould, Ronald Murray (Ninth Circuit) show/hide docs
NS-CA-0030-0002
Kenton, Victor B. (C.D. Cal.) show/hide docs
NS-CA-0030-9000
Steeh, George Caram III (E.D. Mich.) show/hide docs
NS-CA-0030-0002
Plaintiff's Lawyers Arulanantham, Ahilan T (California) show/hide docs
NS-CA-0030-9000
Bibring, Peter (California) show/hide docs
NS-CA-0030-0001 | NS-CA-0030-0007 | NS-CA-0030-0008 | NS-CA-0030-0009 | NS-CA-0030-9000
Busa, Joseph F. (District of Columbia) show/hide docs
NS-CA-0030-0011
Clark, Jeffrey Bossert (District of Columbia) show/hide docs
NS-CA-0030-0011
Ellis, Jonathan Y. (District of Columbia) show/hide docs
NS-CA-0030-0011
Joshi, Sopan (District of Columbia) show/hide docs
NS-CA-0030-0011
Kneedler, Edwin S. (District of Columbia) show/hide docs
NS-CA-0030-0011
Pasquarella, Jennifer (California) show/hide docs
NS-CA-0030-9000
Piovia-Scott, Joshua (California) show/hide docs
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Qazi, Ameena Mirza (California) show/hide docs
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Salahi, Yaman (California) show/hide docs
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Salahi, Reem (California) show/hide docs
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Shabaik, Amr (California) show/hide docs
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Stormer, Dan Lewis (California) show/hide docs
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Swingle, Sharon (District of Columbia) show/hide docs
NS-CA-0030-0011
Tajsar, Mohammad K. (California) show/hide docs
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Wall, Jeffrey B. (District of Columbia) show/hide docs
NS-CA-0030-0011
Defendant's Lawyers Carroll, Catherine M.A. (District of Columbia) show/hide docs
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Coppolino, Anthony J. (District of Columbia) show/hide docs
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Cote, Alexander H. (California) show/hide docs
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DeMott, Joseph J (District of Columbia) show/hide docs
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Handler, Stephen E. (District of Columbia) show/hide docs
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Lee, Lynn Y. (District of Columbia) show/hide docs
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Li, Peiyin Patty (California) show/hide docs
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Lowder, Amos Alexander (California) show/hide docs
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Machala, Angela M. (California) show/hide docs
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Michael, Brian R. (California) show/hide docs
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Moran, Katie (California) show/hide docs
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Nichols, Carl John (District of Columbia) show/hide docs
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Owens, Annie L. (District of Columbia) show/hide docs
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Scheper, David C. (California) show/hide docs
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Shapiro, Howard M. (District of Columbia) show/hide docs
NS-CA-0030-9000
Slade, W. Scooter (District of Columbia) show/hide docs
NS-CA-0030-9000
Other Lawyers Cohn, Cindy A. (California) show/hide docs
NS-CA-0030-0003
Crocker, Andrew (California) show/hide docs
NS-CA-0030-0003
Greene, David Allen (California) show/hide docs
NS-CA-0030-0003
Moore, Thomas Edward III (California) show/hide docs
NS-CA-0030-0003
Opsahl, Kurt Bradford (California) show/hide docs
NS-CA-0030-0003
Rumold, Mark Thomas (California) show/hide docs
NS-CA-0030-0003
Tien, Lee (California) show/hide docs
NS-CA-0030-0003
Tyre, James Samuel (California) show/hide docs
NS-CA-0030-0003
Wiebe, Richard R. (California) show/hide docs
NS-CA-0030-0003

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