Ninth Circuit Rules on Claims of Unconstitutional Surveillance Against FBI Agents and Government
Three Muslims in Southern California subjected to surveillance by the FBI solely because of their religion brought suit against FBI Agents and the U.S. government for violating their constitutional rights. Among various other claims, they brought a private right of action for violations under the Foreign Intelligence Surveillance Act and violations of their Fourth Amendment rights under Bivens. They also sought the expungement of collected information and damages for the alleged unlawful surveillance.
In 2006 and 2007, the FBI paid a confidential informant, Craig Monteilh, to gather information as a part of a counterterrorism investigation – Operation Flex. During Monteilh’s involvement, FBI Special Agents, Kevin Armstrong and Paul Allen, supervised his work.
In July 2006, Monteilh began to attend religious services at the Islamic Center of Irvine (ICOI), met with ICOI’s imam and stated he wanted to convert to Islam. He then adopted the name Farouk al-Aziz and visited ICOI daily.
Throughout the surveillance, the FBI Agents closely worked with and monitored Monteilh’s work. Monteilh took extensive handwritten notes on his assignments and provided them to the FBI Agents. He met with the two FBI Agents weekly, and spoke with at least one of them daily. The FBI Agents provided Monteilh tools to conduct surveillance, including audio and video recording devices. Virtually all of Monteilh’s interactions with Muslims were recorded.
The FBI obtained hundreds of phone numbers, thousands of email addresses, background information on hundreds of individuals, hundreds of hours of video recordings, and thousands of hours of audio recordings. Surveillance equipment was also installed in at least 8 mosques in the Southern California area.
In early 2007, the two FBI Agents directed Monteilh to ask pointed questions about jihad and armed conflict, and to communicate his willingness to engage in violence. Several ICOI members reported Monteilh to community leaders, one of which called the FBI to report Monteilh. He also instructed members to call the Irvine Police Department, which they did. ICOI sought a restraining order against Monteilh, and it was granted in June 2007.
Around that time, the two FBI Agents told Monteilh that Barbara Walls, then Assistant Special Agent in Charge of FBI’s Santa Ana office, no longer trusted him and wanted him to stop working for the FBI. In October 2007, Monteilh’s role in Operation Flex ended.
Sheikh Yassir Fazaga, Ali Uddin Malik, and Yasser AbdelRahim (Plaintiffs) are three Muslim residents of Southern California. In September 2011, they asserted eleven causes of action that fall into two categories: claims alleging unconstitutional searches under the Fourth Amendment, and claiming alleging unlawful discrimination because of religion under the First and Fifth Amendments, Privacy Act, Religious Freedom Restoration Act, Foreign Intelligence Surveillance Act (FISA), and the Federal Tort Claims Act (FTCA). The Plaintiffs filed the complaint as a putative class action, consisting of all individuals targeted by the FBI for surveillance through Operation Flex and in which the FBI obtained personally identifiable information. The complaint sought injunctive relief and damages.
The Agents moved to dismiss the claims against them, contending they were entitled to qualified immunity. The government moved to dismiss on various grounds. It also asserted that the religion claims, but not the search claims, should be dismissed under the state secrets privilege.
In one order, the district court dismissed the FISA claim against the government, concluding Congress did not waive sovereign immunity. In the same order, the district court permitted the Plaintiff’s FISA claim against the Agents to proceed, rejecting argument they were entitled to qualified immunity. In another order, the district court dismissed all other claims in the case based on the state secrets privilege, including the Plaintiff’s claims under the Fourth Amendment. The Agents appealed the denial of qualified immunity, and the Plaintiffs appealed the denial of the other claims.
The Court of Appeals for the Ninth Circuit evaluated the Agents’ argument that qualified immunity applied to the FISA claim. While the Plaintiffs accepted that qualified immunity may apply, the Plaintiffs argued that the Agents were not entitled to it. The court stated that the Agents were entitled to qualified immunity unless the Plaintiffs showed that the Agents violated a statutory or constitutional right, and the right was clearly established at the time of the challenged conduct.
The court explained that FISA § 1810 creates a private right of action for an individual subjected to electronic surveillance in violation of FISA’s procedures. To determine whether Plaintiffs alleged a cause of action under § 1810, the court stated it must decide whether the Plaintiffs were “aggrieved persons” under the statute, whether the surveillance they were subjected is “electronic surveillance,” and whether the complaint alleges a violation of § 1809.
The court found that the Plaintiffs alleged in extensive detail how they were subjected to surveillance, and therefore, could be considered as “aggrieved persons.” It then turned to whether there was “electronic surveillance.” Under § 1801(f), FISA offers four definitions of “electronic surveillance,” with the fourth being the only one in question. The key question as to whether “electronic surveillance” fits the fourth definition is whether the surveillance detailed in the complaint was undertaken in circumstances in which the Plaintiffs had a reasonable expectation of privacy, and a warrant would be required for law enforcement purposes.
The court stated that the legal standards for a reasonable expectation of privacy and the warrant requirement are evaluated under a Fourth Amendment analysis. Per the court, a reasonable expectation of privacy exists where a person has “exhibited an actual (subjective) expectation of privacy,” and the expectation is one that “society is prepared to recognize as ‘reasonable.’” The court considered separately three categories of audio and video surveillance – (1) recordings made by Monteilh of conversations to which he was a party, (2) recordings made by Monteilh of conversations to which he was not a party, and (3) recordings made by devices planted by FBI agents in the Plaintiffs’ offices, houses, cars, and phones.
With respect to the first category of surveillance, the court concluded the Agents were entitled to dismissal on qualified immunity grounds of Plaintiff’s FISA claim, since the Plaintiffs did not have a reasonable expectation of privacy under the invited informer doctrine. The court stated that generally an individual “has no privacy interest in that which he voluntarily reveals to a government agent.” The court explained that there is a limitation on the government’s use of undercover informers to infiltrate an organization engaging in protected First Amendment activities. However, because that limitation is not grounded in privacy expectations, it does not affect the warrant requirement under the Fourth Amendment.
Under the second category of surveillance, the court found that the Plaintiffs did have a reasonable expectation that their conversations would not be covertly recorded by an individual who was not present where they were physically located, specifically the mosque prayer hall. While the court noted the Plaintiffs were not alone in the mosque prayer hall, this fact did not defeat their claim that they manifested an expectation of privacy.
The court stated that a mosque prayer hall is not an ordinary public place – it is a place of worship. The ICOI also expressly prohibited recording in the mosque prayer hall. Because of the intimate and religious nature of the space and the express prohibition on recordings, the court found the Plaintiffs adequately alleged that they subjectively believed their conversations would not be covertly recorded by someone not present. The court also found that the expectation of privacy here is one that society is would recognize as reasonable. The court referenced the sacred and private nature of houses of worship, and distinguished it from other types of public spaces, like public mailroom or hospital.
As of 2006 and 2007, no federal or state court decision had held that individuals generally have a reasonable expectation of privacy from surveillance in places of worship. In fact, in a 1989 decision, The Presbyterian Church (U.S.A.) v. United States, the court declined to find that a reasonable expectation of privacy attaches to church worship services open to the public. No cases decided by the court since concluded otherwise. Because the court had not previously attached a reasonable expectation of privacy from surveillance to places of worship, the court found that there was no clearly established law during the events in question. As a result, the Agents were entitled to qualified immunity as to this second category of surveillance.
Regarding the third category of surveillance, the court found that the Agents Allen and Armstrong were not entitled to qualified immunity. However, other FBI Agents involved, including Walls, were entitled to dismissal under this third category because the Plaintiffs failed to sufficiently allege their involvement under this category of surveillance. The court stated that the law was clearly established in 2006 and 2007 that individuals have a reasonable expectation of privacy from covert recording of conversations in their homes, cars, offices, and on their phones.
The court then turned to the claims the district court dismissed pursuant to the state sevrets privilege. The court stated that the district court erred by dismissing these claims, and that in enacting FISA, Congress displaced the common law dismissal remedy created by the state secrets privilege. The court stated that FISA’s § 1806(f) procedures were to be used in a civil case when the legality of electronic surveillance is challenged.
The court also considered whether the claims other than the FISA § 1810 claim must be dismissed for reasons independent of the state secrets privilege. The court ruled that the Plaintiffs have a right to force the government to expunge from its records information it illegally collected. The court reasoned that it has repeatedly recognized that federal courts can order expungement of records to vindicate constitutional rights.
The court’s decision also granted the Plaintiffs the opportunity to seek money damages. The Plaintiffs also sought monetary damages directly under the Constitution under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. The court found that the substance of the Plaintiffs’ Fourth Amendment Bivens claim was identical to the allegations raised in their FISA § 1810 claim. In light of the overlap, the court stated that on remand, the district court may determine whether a Bivens remedy is appropriate for any Fourth Amendment claim against the Agents and remains after the Supreme Court’s decision in Ziglar v. Abassi (2017).
The Ninth Circuit remanded the cases to the district court.
Read the full case: Fazaga v. Walls
This case law update was written by Michael J. Sgarlat, Associate Attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.