Unanimous Supreme Court Holds FISA Doesn't Displace State Secrets Privilege

This case law update was written by Michael J. Sgarlat, an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2015. Mr. Sgarlat works with federal employees to respond to proposed disciplinary and adverse actions, and has experience litigating cases before the U.S. Merit Systems Protection Board.

In August 2020, we previously reported on the U.S. Court of Appeals for the Ninth Circuit’s holding that the Foreign Intelligence Surveillance Act (FISA) of 1978 displaces the state secrets privilege in civil actions when the legality of electronic surveillance is challenged. On March 4, 2022, the Supreme Court weighed in on the issue, reversing the Ninth Circuit, and holding that FISA does not displace the state secrets privilege.

The case and question at issue arose after three Muslims in Southern California were subjected to surveillance by the FBI solely because of their religion between 2006 and 2007. They brought suit against FBI Agents and the U.S. government. 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 (RFRA), Foreign Intelligence Surveillance Act of 1978, and the Federal Tort Claims Act (FTCA). The government moved to dismissed most of the claims under the “state secrets” privilege.”

Congress enacted FISA to provide special procedures for use when the government wishes to conduct foreign intelligence surveillance, and the Foreign Intelligence Surveillance Court to entertain applications for and issue orders authorizing such surveillance. When information is lawfully gathered, § 1806 permits its use in judicial and administrative proceedings and specifies procedures in how that is done. The specific provision at issue here, 50 U.S.C. § 1801(f), provides a procedure where a trial-level court or other authority may consider the legality of “electronic surveillance” conducted under FISA and order specific forms of relief. This subsection permits a court to make a determination on the admissibility of information “in camera and ex parte.” If the court finds that the evidence was unlawfully obtained, it must “suppress” the evidence or “otherwise grant the motion of the aggrieved person.”

The district court held that the state secrets privilege required dismissal of all of the claims against the government, except one which it dismissed on other grounds. It ruled that litigation of the dismissed claims “would require or unjustifiably risk disclosure of secret and classified information.” However, on appeal, the Ninth Circuit Court of Appeals reversed the district court. It held that “Congress intended FISA to displace the state secrets privilege and its dismissal remedy with respect to electronic surveillance.”

In FBI v. Fazaga, the Supreme Court was required to determine whether FISA affects the availability or scope of the long-established privilege against court-ordered disclosure of state or military secrets. The Court disagreed with the Ninth Circuit, holding that 50 U.S.C. § 1806(f) does not displace the state secrets privilege.

First, the Court found that the text of FISA weighs “heavily” against displacement. The law does not reference the state secrets privilege, which the Court found to be strong evidence that the availability of the privilege was not altered in any way.

Second, the Court stated that nothing about the operation of § 1806(f) is incompatible with the state secrets privilege. Though the Ninth Circuit found § 1806(f) and the privilege to be “animated by the same concerns,” the Court found this to be wrong. The Court explained that the state secrets privilege will not be invoked in the “majority” of cases in which § 1806(f) is triggered. The Court stated in the few scenarios where they are both triggered, no clash exists because they require different inquiries, authorize different forms of relief, and follow different procedures.

Lastly, the Court stressed that its decision “addresses only the narrow question whether §1806(f) displaces the state secrets privilege.” The Court did not decide whether the government’s evidence is privileged here or whether the district court was correct to dismiss the pleadings.

In a unanimous decision, the Supreme Court reversed the Ninth Circuit’s decision, and remanded the case for further proceedings, including whether the government’s evidence was privileged.

Read the full case: FBI v. Fazaga.


For over 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.

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