                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

YASSIR FAZAGA; ALI UDDIN MALIK;         No. 12-56867
YASSER ABDELRAHIM,
              Plaintiffs-Appellees,        D.C. No.
                                        8:11-cv-00301-
                 v.                        CJC-VBK

FEDERAL BUREAU OF
INVESTIGATION; CHRISTOPHER A.
WRAY, Director of the Federal
Bureau of Investigation, in his
official capacity; PAUL DELACOURT,
Assistant Director in Charge, Federal
Bureau of Investigation’s Los
Angeles Division, in his official
capacity; PAT ROSE; KEVIN
ARMSTRONG; PAUL ALLEN,
                          Defendants,

                and

BARBARA WALLS; J. STEPHEN
TIDWELL,
          Defendants-Appellants.
2                  FAZAGA V. WALLS

YASSIR FAZAGA; ALI UDDIN MALIK;         No. 12-56874
YASSER ABDELRAHIM,
              Plaintiffs-Appellees,        D.C. No.
                                        8:11-cv-00301-
                 v.                        CJC-VBK

FEDERAL BUREAU OF
INVESTIGATION; CHRISTOPHER A.
WRAY, Director of the Federal
Bureau of Investigation, in his
official capacity; PAUL DELACOURT,
Assistant Director in Charge, Federal
Bureau of Investigation’s Los
Angeles Division, in his official
capacity; J. STEPHEN TIDWELL;
BARBARA WALLS,
                          Defendants,

                and

PAT ROSE; KEVIN ARMSTRONG;
PAUL ALLEN,
            Defendants-Appellants.
                   FAZAGA V. WALLS                       3

YASSIR FAZAGA; ALI UDDIN MALIK;          No. 13-55017
YASSER ABDELRAHIM,
             Plaintiffs-Appellants,        D.C. No.
                                        8:11-cv-00301-
                 v.                        CJC-VBK

FEDERAL BUREAU OF
INVESTIGATION; CHRISTOPHER A.            ORDER AND
WRAY, Director of the Federal             AMENDED
Bureau of Investigation, in his            OPINION
official capacity; PAUL DELACOURT,
Assistant Director in Charge, Federal
Bureau of Investigation’s Los
Angeles Division, in his official
capacity; J. STEPHEN TIDWELL;
BARBARA WALLS; PAT ROSE; KEVIN
ARMSTRONG; PAUL ALLEN; UNITED
STATES OF AMERICA,
                Defendants-Appellees.


      Appeal from the United States District Court
         for the Central District of California
      Cormac J. Carney, District Judge, Presiding
4                        FAZAGA V. WALLS

           Argued and Submitted December 7, 2015
                    Pasadena, California

                     Filed February 28, 2019
                     Amended July 20, 2020

    Before: Ronald M. Gould and Marsha S. Berzon, Circuit
      Judges and George Caram Steeh III,* District Judge.

                           Order;
                 Opinion by Judge Berzon;
      Concurrence in Order by Judges Gould and Berzon;
                 Statement by Judge Steeh;
             Dissent to Order by Judge Bumatay




     *
       The Honorable George Caram Steeh III, United States District Judge
for the Eastern District of Michigan, sitting by designation.
                         FAZAGA V. WALLS                                 5

                            SUMMARY**


          Constitutional Law / Foreign Intelligence
                      Surveillance Act

    The panel filed an amended opinion affirming in part and
reversing in part the district court’s judgment in favor of the
United States, the FBI, and federal officials in a putative class
action alleging that an FBI investigation involved unlawful
searches and anti-Muslim discrimination; denied a petition
for panel rehearing; and denied on behalf of the court a
petition for rehearing en banc.

    Plaintiffs are three Muslim residents of Southern
California who alleged that the FBI paid a confidential
informant to conduct a covert surveillance program that
gathered information about Muslims based solely on their
religious identity. Plaintiffs asserted eleven claims, which
fell into two categories: claims alleging unconstitutional
searches, and claims alleging unlawful religious
discrimination. The district court dismissed all but one of
plaintiffs’ claims on the basis of the state secrets privilege,
and allowed only the Foreign Intelligence Surveillance Act
(“FISA”) claim against the FBI Agent Defendants to proceed.

   The panel held that some of the claims the district court
dismissed on state secret grounds should not have been
dismissed outright. The panel further held that the district
court should have reviewed any state secrets evidence
necessary for a determination of whether the alleged

    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
6                    FAZAGA V. WALLS

surveillance was unlawful following the secrecy-protective
procedure set forth in FISA. See 50 U.S.C. § 1806(f).

    Section 110 of FISA, codified at 50 U.S.C. § 1810,
creates a private right of action for an individual subjected to
electronic surveillance in violation of FISA’s procedures.
Concerning the FISA claim against the FBI Agent
Defendants, the panel considered three categories of audio
and video surveillance called in the complaint: recordings
made by the FBI informant of conversations to which he was
a party; recordings made by the informant of conversations to
which he was not a party; and recordings made by devices
planted by FBI agents. The panel concluded that the FBI
Agent Defendants were entitled to qualified immunity as to
the first two categories of surveillance. As to the third
category of surveillance, the panel held that Agents Allen and
Armstrong were not entitled to qualified immunity, but
Agents Tidwell, Walls, and Rose were entitled to dismissal as
to this category of surveillance because plaintiffs did not
plausibly allege their involvement in this category of
surveillance.

    The panel next addressed the remaining claims, which
were all dismissed pursuant to the state secrets privilege.
First, the panel held that in determining sua sponte that
particular claims warranted dismissal under the state secrets
privilege, the district court erred. Second, the panel held that
in enacting FISA, Congress displaced the common law
dismissal remedy created by the United States v. Reynolds,
345 U.S. 1 (1953), state secrets privilege as applied to
electronic surveillance within FISA’s purview. The panel
held that FISA’s § 1806(f) procedures were to be used when
an aggrieved person affirmatively challenges, in any civil
case, the legality of electronic surveillance or its use in
                     FAZAGA V. WALLS                        7

litigation, whether the challenge is under FISA itself, the
Constitution, or any other law. Third, the panel held that the
plaintiffs were considered “aggrieved” for purposes of FISA.

    The panel next considered whether the claims other than
the FISA § 1810 claim must be dismissed for reasons other
than the state secrets privilege, limited to reasons raised by
the defendants’ motions to dismiss.

    Addressing plaintiffs’ Fourth Amendment search claims,
the panel first held that the expungement relief sought by
plaintiffs – the expungement of all records unconstitutionally
obtained and maintained – was available under the
Constitution to remedy the alleged constitutional violations.
Because the government raised no other argument for
dismissal of the Fourth Amendment injunctive relief claim,
it should not have been dismissed. Second, the panel held
that in light of the overlap between plaintiffs’ Bivens claim
and the narrow range of the remaining FISA claims against
the Agent Defendants that can proceed, it was not clear
whether plaintiffs would continue to press this claim. The
panel declined to address whether plaintiffs’ Bivens claim
remained available after the Supreme Court’s decision in
Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), and held that on
remand the district court may determine whether a Bivens
remedy is appropriate for any Fourth Amendment claim
against the FBI Agent Defendants.

    Addressing plaintiffs’ claims arising from their
allegations that they were targeted for surveillance solely
because of their religion, the panel first held that the First
Amendment and Fifth Amendment injunctive relief claims
against the official-capacity defendants may go forward.
Second, concerning plaintiffs’ Bivens claims seeking
8                    FAZAGA V. WALLS

monetary damages directly under the First Amendment’s
Establishment and Free Exercise Clauses and the equal
protection component of the Fifth Amendment’s Due Process
Clause, the panel concluded that the Privacy Act and the
Religious Freedom and Restoration Act (“RFRA”), taken
together, provided an alternative remedial scheme for some,
but not all, of their Bivens claims. As to the remaining Bivens
claims, the panel remanded to the district court to determine
whether a Bivens remedy was available in light of the
Supreme Court’s decision in Abbasi. Third, concerning
plaintiffs’ 42 U.S.C. § 1985(c) claims, alleging that the Agent
Defendants conspired to deprive plaintiffs of their First and
Fifth Amendment constitutional rights, the panel held that
under Abassi, intracorporate liability was not clearly
established at the time of the events in this case and the FBI
Agent Defendants were therefore entitled to qualified
immunity from liability under § 1985(c). The panel affirmed
the district court’s dismissal on this ground. Fourth,
concerning plaintiffs’ claims that the FBI Agent Defendants
and Government Defendants violated RFRA by substantially
burdening plaintiffs’ exercise of religion, and did so without
a compelling government interest without the least restrictive
means, the panel held that it was not clearly established in
2006 or 2007 that defendants’ covert surveillance violated
plaintiffs’ freedom of religion protected by RFRA. The panel
affirmed the district court’s dismissal of the RFRA claim as
to the Agent Defendants because they were not on notice of
a possible RFRA violation. Because the Government
Defendants were not subject to the same qualified immunity
analysis and made no arguments in support of dismissing the
RFRA claim, other than the state secrets privilege, the panel
held that the complaint stated a RFRA claim against the
Government Defendants.            Fifth, concerning plaintiffs’
allegation that the FBI violated the Privacy Act by collecting
                     FAZAGA V. WALLS                          9

and maintaining records describing how plaintiff exercised
their First Amendment rights, the panel held that plaintiffs
failed to state a claim because the sole requested remedy –
injunctive relief – is unavailable for a claimed violation of
5 U.S.C. § 552a(e)(7). Sixth, concerning plaintiffs’ claims
under the Federal Tort Claims Act (“FTCA”), the panel held
that the FTCA judgment bar provision had no application in
this case. The panel further held that it could not determine
the applicability of the FTCA’s discretionary function
exception at this stage in the litigation, and that the district
court may make a determination of applicability on remand.
The panel declined to discuss whether plaintiffs substantively
stated claims as to the state laws underlying the FTCA claim
would be premature.

    The panel remanded for further proceedings. The panel
held that on remand, the FISA and Fourth Amendment
claims, to the extent the panel held they were validly pleaded
in the complaint and not subject to qualified immunity,
should proceed as usual. The district court should, using
§ 1806(f)’s ex parte and in camera procedures, review any
materials relating to the surveillance as may be necessary,
including the evidence over which the Attorney General
asserted the state secrets privilege, to determine whether the
electronic surveillance was lawfully authorized and
conducted. The panel further held that once the district court
used § 1806(f)’s procedures to review the state secrets
evidence in camera and ex parte to determine the lawfulness
of that surveillance, it could rely on its assessment of the
same evidence – taking care to avoid its public disclosure –
to determine the lawfulness of the surveillance falling outside
FISA’s purview, should plaintiffs wish to proceed with their
claims as applied to that set of activity. The panel noted that
the Government is free to raise a state secrets defense, which
10                   FAZAGA V. WALLS

the district court should consider anew. The panel adopted
the D.C. Circuit’s meaning of “valid defense” in the state
secrets context set forth in In re Sealed Case, 494 F.3d 139
(D.C. Cir. 2007).

    Concurring in the denial of rehearing en banc, Judge
Gould and Judge Berzon wrote to highlight fundamental
misperceptions made by the dissent from the denial of
rehearing en banc.

    In a separate statement regarding the denial of rehearing
en banc, Senior District Judge Steeh wrote that, as a visiting
judge sitting by designation, he was not permitted to vote on
the petition for rehearing en banc, but he agreed with the
views expressed by Judges Berzon and Gould in their
concurrence in the denial of rehearing en banc.

    Dissenting from the denial of rehearing en banc, Judge
Bumatay wrote that the panel’s opinion strained the meaning
of the Foreign Intelligence Surveillance Act and adopted a
virtually boundless view of 50 U.S.C. § 1806(f). He wrote
further that the decision seriously degraded the Executive
Branch’s ability to protect the Nation’s secrets, and upset the
balance of power among co-equal branches of government by
abrogating the state secrets privilege.
                    FAZAGA V. WALLS                     11

                       COUNSEL

Carl J. Nichols (argued) and Howard M. Shapiro, Wilmer
Cutler Pickering Hale and Dorr LLP, Washington, D.C.;
Katie Moran, Wilmer Cutler Pickering Hale and Dorr LLP,
Los Angeles, California; for Defendants-Appellants/Cross-
Appellees Barbara Walls and J. Stephen Tidwell.

Alexander H. Cote (argued), Amos A. Lowder, Angela M.
Machala, and David C. Scheper, Scheper Kim & Harris LLP,
Los Angeles, California, for Defendants-Appellants/Cross-
Appellees Pat Rose, Paul Allen, and Kevin Armstrong.

Ahilan Arulanantham (argued), Peter Bibring (argued),
Catherine A. Wagner, and Mohammad Tajsar, ACLU
Foundation of Southern California, Los Angeles, California;
Ameena Mirza Qazi and Fatima Dadabhoy, Council on
American-Islamic Relations, Anaheim, California; Dan
Stormer and Mohammad Tajsar, Hadsell Stormer Keeny &
Renick LLP, Pasadena, California; for Plaintiffs-
Appellees/Cross-Appellants.

Douglas N. Letter (argued), Daniel Tenny, Mark B. Stern,
Mark R. Freeman, Sharon Swingle, and Joseph F. Busa,
Appellate Staff; Nicola T. Hanna, United States Attorney;
Joseph H. Hunt, Assistant Attorney General; Civil Division,
United States Department of Justice, Washington, D.C., for
Defendants-Appellees Federal Bureau of Investigation,
Christopher A. Wray, and Paul Delacourt.

Richard R. Wiebe, Law Office of Richard R. Wiebe, San
Francisco, California; Thomas E. Moore III, Royse Law Firm
PC, Palo Alto, California; David Greene, Andrew Crockner,
Mark Rumold, James S. Tyre, Kurt Opsahl, Lee Tien, and
12                 FAZAGA V. WALLS

Cindy Cohn, Electronic Frontier Foundation, San Francisco,
California; for Amicus Curiae Electronic Frontier
Foundation.
                     FAZAGA V. WALLS                       13

                          ORDER

    The opinion filed on February 28, 2019, reported at 916
F.3d 1202, is hereby amended. An amended opinion is filed
concurrently with this order. With these amendments, the
panel has unanimously voted to deny appellees’ petition for
rehearing. Judges Berzon and Gould have voted to deny the
petition for rehearing en banc and Judge Steeh so
recommends.

    The full court has been advised of the petition for
rehearing en banc. A judge of the court requested a vote on en
banc rehearing. The matter failed to receive a majority of
votes of non-recused active judges in favor of en banc
consideration. Fed. R. App. P. 35.

    The petition for rehearing and the petition for rehearing
en banc are DENIED. No further petitions for panel
rehearing or rehearing en banc will be entertained. Judge
Berzon’s concurrence with and Judge Bumatay’s dissent from
denial of en banc rehearing are filed concurrently herewith.
14                            FAZAGA V. WALLS

                                    OPINION

                        TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

     I. Factual Background . . . . . . . . . . . . . . . . . . . . . . . 20

     II. Procedural History . . . . . . . . . . . . . . . . . . . . . . . . 25

DISCUSSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

     I. The FISA Claim Against the Agent Defendants
        . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

          A. Recordings of Conversations to Which
             Monteilh Was a Party . . . . . . . . . . . . . . . . . . . 35

          B. Recordings of Conversations in the Mosque
             Prayer Hall to Which Monteilh Was Not a Party
             . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

          C. Recordings Made by Planted Devices . . . . . . 44

     II. The State Secrets Privilege and FISA Preemption
         . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

          A. The State Secrets Privilege . . . . . . . . . . . . . . . 50

          B. The District Court’s Dismissal of the Search
             Claims Based on the State Secrets Privilege
             . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
                          FAZAGA V. WALLS                                         15

       C. FISA Displacement of the State Secrets Privilege
          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

       D. Applicability of FISA’s § 1806(f) Procedures to
          Affirmative Legal Challenges to Electronic
          Surveillance . . . . . . . . . . . . . . . . . . . . . . . . . . 66

       E. Aggrieved Persons . . . . . . . . . . . . . . . . . . . . . 76

III.        Search Claims . . . . . . . . . . . . . . . . . . . . . . . . . 77

       A. Fourth Amendment Injunctive Relief Claim
          Against the Official-Capacity Defendants . . . 77

       B. Fourth Amendment Bivens Claim Against the
          Agent Defendants . . . . . . . . . . . . . . . . . . . . . . 81

IV.         Religion Claims . . . . . . . . . . . . . . . . . . . . . . . 83

       A. First Amendment and Fifth Amendment
          Injunctive Relief Claims Against the Official-
          Capacity Defendants . . . . . . . . . . . . . . . . . . . . 83

       B. First Amendment and Fifth Amendment Bivens
          Claims Against the Agent Defendants . . . . . . 84

       C. 42 U.S.C. § 1985(3) Claims Against the Agent
          Defendants . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

       D. Religious Freedom Restoration Act Claim
          Against the Agent Defendants and Government
          Defendants . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

       E. Privacy Act Claim Against the FBI . . . . . . . . 97
16                         FAZAGA V. WALLS

         F. FTCA Claims . . . . . . . . . . . . . . . . . . . . . . . . . 99

              1. FTCA Judgment Bar . . . . . . . . . . . . . . . . 100

              2. FTCA Discretionary Function Exception
                 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

     V. Procedures on Remand . . . . . . . . . . . . . . . . . . . . 102

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
                        FAZAGA V. WALLS                             17

BERZON, Circuit Judge:

                        INTRODUCTION

    Three Muslim residents of Southern California allege that,
for more than a year, the Federal Bureau of Investigation
(“FBI”) paid a confidential informant to conduct a covert
surveillance program that gathered information about
Muslims based solely on their religious identity. The three
plaintiffs filed a putative class action against the United
States, the FBI, and two FBI officers in their official
capacities (“Government” or “Government Defendants”), and
against five FBI agents in their individual capacities (“Agent
Defendants”). Alleging that the investigation involved
unlawful searches and anti-Muslim discrimination, they
pleaded eleven constitutional and statutory causes of action.1

    The Attorney General of the United States asserted the
state secrets privilege with respect to three categories of
evidence assertedly at issue in the case, and the Government
moved to dismiss the discrimination claims pursuant to that
privilege. The Government expressly did not move to dismiss
the Fourth Amendment and Foreign Intelligence Surveillance
Act (“FISA”) unlawful search claims based on the privilege.
Both the Government and the Agent Defendants additionally
moved to dismiss Plaintiffs’ discrimination and unlawful
search claims based on arguments other than the privilege.

    1
        Specifically, the Plaintiffs alleged violations of the First
Amendment’s Establishment Clause and Free Exercise Clauses; the
Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.; the equal
protection component of the Fifth Amendment’s Due Process Clause; the
Privacy Act, 5 U.S.C. § 552a; the Fourth Amendment; the Foreign
Intelligence Surveillance Act, 50 U.S.C. § 1810; and the Federal Tort
Claims Act, 28 U.S.C. § 1346.
18                    FAZAGA V. WALLS

    The district court dismissed all but one of Plaintiffs’
claims on the basis of the state secrets privilege—including
the Fourth Amendment claim, although the Government
Defendants had not sought its dismissal on privilege grounds.
The district court allowed only the FISA claim against the
Agent Defendants to proceed. Plaintiffs appeal the dismissal
of the majority of their claims, and the Agent Defendants
appeal the denial of qualified immunity on the FISA claim.

    We conclude that some of the claims dismissed on state
secrets grounds should not have been dismissed outright.
Instead, the district court should have reviewed any state
secrets evidence necessary for a determination of whether the
alleged surveillance was unlawful following the secrecy-
protective procedure set forth in FISA. See 50 U.S.C.
§ 1806(f). After addressing Defendants’ other arguments for
dismissing Plaintiffs’ claims, we conclude that some of
Plaintiffs’ allegations state a claim while others do not.
Accordingly, we remand to the district court for further
proceedings on the substantively stated claims.

                       BACKGROUND

     At this stage in the litigation, we “construe the complaint
in the light most favorable to the plaintiff[s], taking all [their]
allegations as true and drawing all reasonable inferences from
the complaint in [their] favor.” Doe v. United States, 419 F.3d
1058, 1062 (9th Cir. 2005). “Conclusory allegations and
unreasonable inferences, however, are insufficient to defeat
a motion to dismiss.” Sanders v. Brown, 504 F.3d 903, 910
(9th Cir. 2007).

   Plaintiffs are three Muslims who were residents of
Southern California: Sheikh Yassir Fazaga, Ali Uddin Malik,
                          FAZAGA V. WALLS                                19

and Yasser AbdelRahim. Fazaga was, at the times relevant to
this litigation, an imam at the Orange County Islamic
Foundation (“OCIF”), a mosque in Mission Viejo, California.
Malik and AbdelRahim are practicing Muslims who regularly
attended religious services at the Islamic Center of Irvine
(“ICOI”).

    The complaint sought relief against the United States,
the FBI, and two federal officials named in their
official capacities, as well as five individual Agent
Defendants—Kevin Armstrong, Paul Allen, J. Stephen
Tidwell, Barbara Walls, and Pat Rose—named in their
individual capacities. Armstrong and Allen were FBI Special
Agents assigned to the Orange County areas; Tidwell was the
Assistant Director in Charge of the FBI’s Los Angeles Field
Office from August 2005 to December 2007; Walls was the
Special Agent in Charge of the FBI’s Santa Ana branch
office, a satellite office of the FBI’s Los Angeles field office;
and Rose was a Special Agent assigned to the FBI’s Santa
Ana branch office.

    Because of the sensitivity of the issues in this case, we
particularly stress the usual admonition that accompanies
judicial determination on motions to dismiss a complaint: the
facts recited below come primarily from Plaintiffs’
allegations in their complaint.2 The substance of those
allegations has not been directly addressed by the defendants.
At this point in the litigation, the truth or falsity of the
allegations therefore is entirely unproven.



    2
      In addition to the facts alleged in the complaint, this opinion at some
points refers to facts contained in two public declarations submitted by the
Government in support of its invocation of the state secrets privilege.
20                       FAZAGA V. WALLS

I. Factual Background

    For at least fourteen 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. Plaintiffs allege that Operation Flex was
a “dragnet surveillance” program, the “central feature” of
which was to “gather information on Muslims.”3

    At some point before July 2006, Stephen Tidwell, then
the Assistant Director in Charge of the FBI’s Los Angeles
Field Office, authorized first the search for an informant and
later the selection of Monteilh as that informant. Once
selected, Monteilh was supervised by two FBI handlers,
Special Agents Kevin Armstrong and Paul Allen.

    In July 2006, Monteilh began attending ICOI. As
instructed by Allen and Armstrong, Monteilh requested a
meeting with ICOI’s imam, represented that he wanted to
convert to Islam, and later publicly declared his embrace of
Islam at a prayer service. Monteilh subsequently adopted the
name Farouk al-Aziz and began visiting ICOI daily, attending
prayers, classes, and special events. He also visited “with
some regularity” several other large mosques in Orange
County.




     3
      In a public declaration, the FBI frames Operation Flex differently,
contending that it “focused on fewer than 25 individuals and was directed
at detecting and preventing possible terrorist attacks.” The FBI maintains
that the goal of Operation Flex “was to determine whether particular
individuals were involved in the recruitment and training of individuals in
the United States or overseas for possible terrorist activity.”
                     FAZAGA V. WALLS                        21

    Armstrong and Allen closely supervised Monteilh during
the course of Operation Flex, explaining to him the
parameters and goals of the investigation. Monteilh was“to
gather information on Muslims in general,” using
information-gathering and surveillance tactics. The agents
provided him with the tools to do so, including audio and
video recording devices. They also gave Monteilh general
goals, such as obtaining contact information from a certain
number of Muslims per day, as well as specific tasks, such as
entering a certain house or having lunch with a particular
person. Sometimes, Allen and Armstrong prepared photo
arrays with hundreds of Muslim community members and
asked Monteilh to arrange the photos from most to least
dangerous.

    Armstrong and Allen did not, however, limit Monteilh to
specific targets. Rather, “they repeatedly made clear that they
were interested simply in Muslims.” Allen told Monteilh,
“We want to get as many files on this community as
possible.” To the extent Allen and Armstrong expressed an
interest in certain targets, it was in particularly religious
Muslims and persons who might influence young Muslims.
When Monteilh’s surveillance activities generated
information on non-Muslims, the agents set that information
aside.

    In accordance with his broad directive, Monteilh engaged
with a wide variety of individuals. As instructed by his
handlers, he attended classes at the mosque, amassed
information on Muslims’ charitable giving, attended Muslim
fundraising events, collected information on community
members’ travel plans, attended lectures by Muslim scholars,
went to daily prayers, memorized certain verses from the
Quran and recited them to others, encouraged people to visit
22                   FAZAGA V. WALLS

“jihadist” websites, worked out with targeted people at a gym
to get close to them, and sought to obtain compromising
information that could be used to pressure others to become
informants. He also collected the names of board members,
imams, teachers, and other leadership figures at the mosques,
as well as the license plate numbers of cars in the mosque
parking lots during certain events.

    Virtually all of Monteilh’s interactions with Muslims
were recorded. Monteilh used audio and video recording
devices provided to him by the agents, including a cellphone,
two key fobs with audio recording capabilities, and a camera
hidden in a button on his shirt. He recorded, for example, his
interactions with Muslims in the mosques, which were
transcribed and reviewed by FBI officials. He also recorded
meetings and conversations in the mosque prayer hall to
which he was not a party. He did so by leaving his
possessions behind, including his recording key fob, as
though he had forgotten them or was setting them down while
doing other things. Monteilh told Allen and Armstrong in
written reports that he was recording conversations in this
manner. The agents never told him to stop this practice, and
they repeatedly discussed with Monteilh the contents of the
recordings.

    Armstrong and Allen occasionally instructed Monteilh to
use his secret video camera for specific purposes, such as
capturing the internal layout of mosques and homes. They
also told Monteilh to obtain the contact information of people
he met, and monitored his email and cellphone to obtain the
email addresses and phone numbers of the people with whom
he interacted.
                     FAZAGA V. WALLS                       23

    Although Monteilh spent the majority of his time at ICOI,
he conducted surveillance and made audio recordings in at
least seven other mosques during the investigation. During
Monteilh’s fourteen months as an informant for Operation
Flex, the FBI obtained from him hundreds of phone numbers;
thousands of email addresses; background information on
hundreds of individuals; hundreds of hours of video
recordings of the interiors of mosques, homes, businesses,
and associations; and thousands of hours of audio recordings
of conversations, public discussion groups, classes, and
lectures.

    In addition to the surveillance undertaken directly by
Monteilh, Allen and Armstrong told Monteilh that electronic
surveillance equipment had been installed in at least eight
mosques in the area, including ICOI. The electronic
surveillance equipment installed at the Mission Viejo mosque
was used to monitor Plaintiff Yassir Fazaga’s conversations,
including conversations held in his office and other parts of
the mosque not open to the public.

    At the instruction of Allen and Armstrong, Monteilh took
extensive handwritten notes each day about his activities and
the surveillance he was undertaking. Allen and Armstrong
met with Monteilh roughly twice each week to discuss his
assignments, give him instructions, receive his daily notes,
upload his recordings, and give him fresh devices. Monteilh
was also required to call either Allen or Armstrong each day
to apprise them of his activities. They told Monteilh that his
daily notes were read by their supervisors.

    The operation began to unravel when, in early 2007,
Allen and Armstrong instructed Monteilh to begin more
pointedly asking questions about jihad and armed conflict and
24                  FAZAGA V. WALLS

to indicate his willingness to engage in violence.
Implementing those instructions, Monteilh told several people
that he believed it was his duty as a Muslim to take violent
action and that he had access to weapons. Several ICOI
members reported Monteilh to community leaders. One of the
community leaders then called the FBI to report what
Monteilh was saying, and instructed concerned ICOI
members to call the Irvine Police Department, which they
did. ICOI sought a restraining order against Monteilh, which
was granted in June 2007.

   Around the same time, Allen and Armstrong told
Monteilh that Barbara Walls, then Assistant Special Agent in
Charge of the FBI’s Santa Ana office, no longer trusted him
and wanted him to stop working for the FBI. In October
2007, Monteilh was told that his role in Operation Flex was
over. At one of the final meetings between Monteilh and
Agents Allen and Armstrong, Walls was present. She warned
Monteilh not to tell anyone about the operation.

    Monteilh’s identity as an informant was revealed in
February 2009 in connection with a criminal prosecution for
naturalization fraud of Ahmadullah (or Ahmed) Niazi, one of
the ICOI members who had reported Monteilh’s statements
to the Irvine Police Department. FBI Special Agent Thomas
Ropel testified at a bail hearing in Niazi’s case that he had
heard several recordings between Niazi and a confidential
informant, and that the informant was the same person Niazi
had reported to the police. Ropel’s statements thus indicated
that Monteilh was a confidential informant and that he had
recorded numerous conversations for the FBI.

   Several sources subsequently confirmed that Monteilh
worked for the FBI, including the FBI and Monteilh himself.
                         FAZAGA V. WALLS                               25

Although the FBI has disclosed some information about
Monteilh’s actions as an informant, including that he created
audio and video recordings and provided handwritten notes
to the FBI, the FBI maintains that “certain specific
information” concerning Operation Flex and Monteilh’s
activities must be protected in the interest of national
security.

II. Procedural History

    Plaintiffs filed the operative complaint in September
2011, asserting eleven causes of action, which fall into two
categories: claims alleging unconstitutional searches (“search
claims”) and claims alleging unlawful discrimination on the
basis of, or burdens on, or abridgement of the rights to,
religion (“religion claims”). The religion claims allege
violations of the First Amendment Religion Clauses, the
equal protection guarantee of the Due Process Clause of the
Fifth Amendment,4 the Privacy Act, the Religious Freedom
Restoration Act (“RFRA”), the Foreign Intelligence
Surveillance Act (“FISA”), and the Federal Tort Claims Act
(“FTCA”).

    Plaintiffs filed the complaint as a putative class action,
with the class defined as “[a]ll individuals targeted by
Defendants for surveillance or information-gathering through
Monteilh and Operation Flex, on account of their religion,
and about whom the FBI thereby gathered personally
identifiable information.” The complaint sought injunctive


    4
      “The liberty protected by the Fifth Amendment’s Due Process
Clause contains within it the prohibition against denying to any person the
equal protection of the laws.” United States v. Windsor, 570 U.S. 744, 774
(2013) (citing Bolling v. Sharpe, 347 U.S. 497, 499–500 (1954)).
26                       FAZAGA V. WALLS

relief for the individual Plaintiffs and the class, and damages
for themselves as individuals.5 The Agent Defendants moved
to dismiss the claims against them on various grounds,
including qualified immunity. The Government moved to
dismiss the amended complaint and for summary judgment,
arguing that Plaintiffs’ statutory and constitutional claims fail
on various grounds unrelated to the state secrets privilege.

    The Government also asserted that the religion claims, but
not the search claims, should be dismissed under the Reynolds
state secrets privilege, see United States v. Reynolds, 345 U.S.
1 (1953), on the ground that litigation of the religion claims
could not proceed without risking the disclosure of certain
evidence protected by the privilege. The assertion of the state
secrets privilege was supported with a previously filed public
declaration from then-U.S. Attorney General Eric Holder; a
public declaration from Mark Giuliano, then Assistant
Director of the FBI’s Counterterrorism Division; and two
classified declarations and a classified supplemental
memorandum from Giuliano. The Attorney General asserted
the state secrets privilege over three categories of evidence:
(1) “[i]nformation that could tend to confirm or deny whether
a particular individual was or was not the subject of an FBI
counterterrorism investigation”; (2) “[i]nformation that could
tend to reveal the initial reasons (i.e., predicate) for an FBI
counterterrorism investigation of a particular person
(including in Operation Flex), any information obtained


     5
       The proposed class has not been certified. In addition to its
relevance to the merits of Plaintiffs’ claims, the information over which
the Government asserted the state secrets privilege may also be relevant
to the decision whether to certify the class. In addition, the scope of
privileged evidence needed to litigate the case likely will differ should
class certification be granted.
                      FAZAGA V. WALLS                          27

during the course of such an investigation, and the status and
results of the investigation”; and (3) “[i]nformation that could
tend to reveal whether particular sources and methods were
used in a counterterrorism investigation.”

    In one order, the district court dismissed the FISA claim
against the Government, brought under 50 U.S.C. § 1810,
concluding that Congress did not waive sovereign immunity
for damages actions under that statute. See Al-Haramain
Islamic Found., Inc. v. Obama (Al-Haramain II), 705 F.3d
845, 850–55 (9th Cir. 2012). Plaintiffs do not challenge this
dismissal. In the same order, the district court permitted
Plaintiffs’ FISA claim against the Agent Defendants to
proceed, rejecting the argument that the Agent Defendants
were entitled to qualified immunity.

     In a second order, the district court dismissed all the other
claims in the case on the basis of the Reynolds state secrets
privilege—including the Fourth Amendment claim, for which
the Government Defendants expressly did not seek dismissal
on that ground. Relying “heavily” on the classified
declarations and supplemental memorandum, the district
court concluded “that the subject matter of this action,
Operation Flex, involves intelligence that, if disclosed, would
significantly compromise national security.” It held that the
Government Defendants would need to rely on the privileged
material to defend against Plaintiffs’ claims, and that the
privileged evidence was so inextricably tied up with
nonprivileged material that “the risk of disclosure that further
litigation would engender [could not] be averted through
protective orders or restrictions on testimony.” The district
court declined to use, as a substitute for dismissal, the in
camera, ex parte procedures set out in § 1806(f) of FISA, on
28                   FAZAGA V. WALLS

the ground that FISA’s procedures do not apply to non-FISA
claims.

    The Agent Defendants timely filed notices of appeal from
the denial of qualified immunity on Plaintiffs’ FISA claim.
The district court then approved the parties’ stipulation to
stay all further proceedings related to the remaining FISA
claim pending resolution of the Agent Defendants’ appeal
and, at Plaintiffs’ request, entered partial final judgment
under Federal Rule of Civil Procedure 54(b), allowing
immediate appeal of the majority of Plaintiffs’ claims. The
Plaintiffs’ appeal and the Agent Defendants’ appeal from the
denial of qualified immunity on the FISA claim were
consolidated and are both addressed in this opinion.

                       DISCUSSION

    We begin with the only claim to survive Defendants’
motions to dismiss in the district court: the FISA claim
against the Agent Defendants. After addressing the FISA
claim, we turn to Plaintiffs’ argument that in cases
concerning the lawfulness of electronic surveillance, the ex
parte and in camera procedures set out in § 1806(f) of FISA
supplant the dismissal remedy otherwise mandated by the
state secrets evidentiary privilege. See infra Part II. We then
proceed to evaluate Defendants’ other arguments for
dismissal of the search and religion claims. See infra Parts
III–IV. Finally, we explain the procedures to be followed on
remand. See infra Part V.

I. The FISA Claim Against the Agent Defendants

    Section 110 of FISA, codified at 50 U.S.C. § 1810,
creates a private right of action for an individual subjected to
                     FAZAGA V. WALLS                        29

electronic surveillance in violation of FISA’s procedures. It
provides, in pertinent part:

       An aggrieved person . . . who has been
       subjected to an electronic surveillance or
       about whom information obtained by
       electronic surveillance of such person has
       been disclosed or used in violation of section
       1809 of this title shall have a cause of action
       against any person who committed such
       violation . . . .

50 U.S.C. § 1810.

    This statutory text refers to another section, § 1809. That
section, in turn, proscribes as criminal offenses two types of
conduct: (1) “intentionally . . . engag[ing] in electronic
surveillance under color of law except as authorized by
[FISA, the Wiretap Act, the Stored Communications Act, or
the pen register statute,] or any express statutory
authorization,” and (2) “intentionally . . . disclos[ing] or
us[ing] information obtained under color of law by electronic
surveillance, knowing or having reason to know that the
information was obtained through electronic surveillance”
without authorization. 50 U.S.C. § 1809(a).

    To determine whether Plaintiffs plausibly allege a cause
of action under § 1810, we must decide (1) whether Plaintiffs
are “aggrieved persons” within the meaning of the statute,
(2) whether the surveillance to which they were subjected
qualifies as “electronic surveillance,” and (3) whether the
complaint plausibly alleges a violation of 50 U.S.C. § 1809.
30                       FAZAGA V. WALLS

    An “aggrieved person” 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.” 50 U.S.C. § 1801(k).6 Plaintiffs allege in
extensive detail in the complaint that they were subjected to
many and varied instances of audio and video surveillance.
The complaint’s allegations are sufficient if proven to
establish that Plaintiffs are “aggrieved persons.”

    The complaint also adequately alleges that much of the
surveillance as described constitutes “electronic surveillance”
as defined by FISA. FISA offers four definitions of electronic
surveillance. 50 U.S.C. § 1801(f). Only the fourth is
potentially at stake in this case:

         the installation or use of an electronic,
         mechanical, or other surveillance device in the
         United States for monitoring to acquire
         information, other than from a wire or radio
         communication, under circumstances in which
         a person has a reasonable expectation of
         privacy and a warrant would be required for
         law enforcement purposes.

Id. § 1801(f)(4) (emphases added). The key question as to the
presence of “electronic surveillance” under this definition is
whether the surveillance detailed in the complaint was
undertaken in circumstances in which (1) Plaintiffs had a
reasonable expectation of privacy and (2) a warrant would be
required for law enforcement purposes. If, as the complaint


     6
       “‘Person’ means any individual, including any officer or employee
of the Federal Government, or any group, entity, association, corporation,
or foreign power.” 50 U.S.C. § 1801(m).
                         FAZAGA V. WALLS                             31

alleges, no warrant was in fact obtained, such electronic
surveillance would constitute a violation of § 1809. Id.
§ 1809(a).

    The parties, citing ACLU v. NSA, 493 F.3d 644, 657 n.16,
683 (6th Cir. 2007), agree that these legal standards from
FISA—reasonable expectation of privacy and the warrant
requirement—are evaluated just as they would be under a
Fourth Amendment analysis. The Agent Defendants argue,
however, that they are entitled to qualified immunity on
Plaintiffs’ FISA claim. Plaintiffs accept that qualified
immunity can apply under FISA but maintain that the Agent
Defendants are not entitled to immunity.7

    The Agent Defendants are entitled to qualified immunity
from damages unless Plaintiffs “plead[] facts showing (1) that
the official[s] violated a statutory or constitutional right, and
(2) that the right was ‘clearly established’ at the time of the
challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735
(2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). We are permitted to “exercise [our] sound discretion
in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.” Pearson v.
Callahan, 555 U.S. 223, 236 (2009). Because, as we conclude
in infra Part II.E, the applicability of FISA’s alternative

    7
      We have found only one decision, unpublished, addressing whether
qualified immunity is an available defense to a FISA claim. See Elnashar
v. U.S. Dep’t of Justice, No. CIV.03-5110(JNE/JSM), 2004 WL 2237059,
at *5 (D. Minn. Sept. 30, 2004) (dismissing a FISA claim on grounds of
qualified immunity because there was no evidence the defendant “would
have known that the search of [plaintiff’s] apartment would have required
a warrant”), aff’d on other grounds, 446 F.3d 792 (8th Cir. 2006). As the
issue is not contested, we do not decide it.
32                       FAZAGA V. WALLS

procedures for reviewing state secrets evidence turns on
whether the surveillance at issue constitutes “electronic
surveillance” within the meaning of FISA,8 we will begin
with the first prong, even though we conclude that the Agent
Defendants are ultimately entitled to qualified immunity on
the second prong.

    For purposes of qualified immunity, a right is clearly
established if, “at the time of the challenged conduct, ‘[t]he
contours of [a] right [are] sufficiently clear’ that every
‘reasonable official would have understood that what he is
doing violates that right.’” al-Kidd, 563 U.S. at 741
(alterations in original) (quoting Anderson v. Creighton,
483 U.S. 635, 640 (1987)). “This inquiry . . . must be
undertaken in light of the specific context of the case, not as
a broad general proposition.” Saucier v. Katz, 533 U.S. 194,
201 (2001). “We do not require a case directly on point, but
existing precedent must have placed the statutory or
constitutional question beyond debate.” al-Kidd, 563 U.S. at
741.

    “The operation of [the qualified immunity] standard,
however, depends substantially upon the level of generality
at which the relevant ‘legal rule’ is to be identified.”
Anderson, 483 U.S. at 639. Often, whether a right is “clearly
established” for purposes of qualified immunity will turn on
the legal test for determining whether that right has been

     8
      Again, as we noted above, “electronic surveillance” as defined by
FISA must fall under one of four types of government action. 50 U.S.C.
§ 1801(f). The relevant one for our purposes involves “the installation or
use of an electronic, mechanical, or other surveillance device . . . under
circumstances in which a person has a reasonable expectation of privacy
and a warrant would be required for law enforcement purposes.” Id.
§ 1801(f)(4).
                          FAZAGA V. WALLS                                 33

violated. For claims of excessive force, for example, “[i]t is
sometimes difficult for an officer to determine how the
relevant legal doctrine . . . will apply to the factual situation
the officer confronts.” Saucier, 533 U.S. at 205. “The
calculus of reasonableness must embody allowance for the
fact that police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and
rapidly evolving—about the amount of force that is necessary
in a particular situation.” Graham v. Connor, 490 U.S. 386,
396–97 (1989). By contrast, “[w]ith few exceptions, the
question whether a warrantless search of a home is reasonable
and hence constitutional must be answered no,” Kyllo v.
United States, 533 U.S. 27, 31 (2001), as “the Fourth
Amendment has drawn a firm line at the entrance to the
house,” Payton v. New York, 445 U.S. 573, 590 (1980). Thus,
where the test for determining whether the right in question
has been violated is framed as a standard, rather than a rule,
officials are given more breathing room to make “reasonable
mistakes.” Saucier, 533 U.S. at 205. In those instances, we
require a higher degree of factual specificity before
concluding that the right is “clearly established.” But where
the right at issue is clear and specific, officials may not claim
qualified immunity based on slight changes in the
surrounding circumstances.9




    9
       The Supreme Court made a similar observation in an analogous
context—determining whether a state court has unreasonably applied
clearly established federal law for purposes of habeas review under the
Antiterrorism and Effective Death Penalty Act: “[T]he range of reasonable
judgment can depend in part on the nature of the relevant rule. If a legal
rule is specific, the range may be narrow. . . . Other rules are more general,
and their meaning must emerge in application over the course of time.”
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
34                        FAZAGA V. WALLS

    To properly approach this inquiry, we consider separately
three categories of audio and video surveillance alleged in the
complaint: (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 (i.e., the recordings
of conversations in the mosque prayer hall); and
(3) recordings made by devices planted by FBI agents in
Fazaga’s office and AbdelRahim’s house, car, and phone.10

    We conclude that the Agent Defendants are entitled to
dismissal on qualified immunity grounds of Plaintiffs’ § 1810
claim as to the first two categories of surveillance. As to the
third category of surveillance, conducted via devices planted
in AbdelRahim’s house and Fazaga’s office, Allen and
Armstrong are not entitled to qualified immunity. But
Tidwell, Walls, and Rose are entitled to dismissal as to this
category, because Plaintiffs do not plausibly allege their
involvement in this category of surveillance, and so have not


     10
        We note that, in their “Claims for Relief,” under the FISA cause of
action, Plaintiffs recite that “Defendants, under color of law, acting
through Monteilh” violated FISA (emphasis added). But the complaint
specifically recites facts relating to devices allegedly planted directly by
the Agent Defendants. Under the Federal Rules of Civil Procedure, it is
the facts alleged that circumscribe the reach of the complaint for purposes
of a motion to dismiss. See Skinner v. Switzer, 562 U.S. 521, 530 (2011).

     We also note that there may be a fourth category of surveillance here
at issue: video recordings of the interiors of individuals’ homes. These
recordings are not given meaningful attention in the parties’ briefs, and we
cannot determine from the complaint if Plaintiffs mean to allege that
Monteilh video recorded the layouts of houses into which he was invited,
or that he entered the houses without permission. Although at this stage
we do not construe the complaint as asserting claims based on this fourth
category of surveillance, our opinion does not foreclose Plaintiffs from
clarifying these and other allegations on remand.
                     FAZAGA V. WALLS                       35

“pleaded facts showing . . . that [those] officials violated a
statutory or constitutional right.” al-Kidd, 563 U.S. at 735.

   A. Recordings of Conversations to Which Monteilh
      Was a Party

     A reasonable expectation of privacy exists where “a
person ha[s] exhibited an actual (subjective) expectation of
privacy,” and “the expectation [is] one that society is
prepared to recognize as ‘reasonable.’” Katz v. United States,
389 U.S. 347, 361 (1967) (Harlan, J., concurring); see, e.g.,
California v. Ciraolo, 476 U.S. 207, 211) (1986) (describing
Justice Harlan’s test as the “touchstone of Fourth Amendment
analysis”). Generally, an individual “has no privacy interest
in that which he voluntarily reveals to a government agent,”
a principle known as the invited informer doctrine. United
States v. Wahchumwah, 710 F.3d 862, 867 (9th Cir. 2013)
(citing Hoffa v. United States, 385 U.S. 293, 300–02 (1966));
see also United States v. Aguilar, 883 F.2d 662, 697–98 (9th
Cir. 1989), superseded on other grounds by statute,
Immigration Reform and Control Act of 1986, Pub. L. No.
99-603, 100 Stat. 3359, as recognized in United States v.
Gonzalez-Torres, 309 F.3d 594 (9th Cir. 2002). Plaintiffs
contend, however, that the invited informer doctrine does not
apply to the recordings made by Monteilh of conversations to
which he was a party because the surveillance was conducted
with discriminatory purpose and therefore in bad faith.

    Bad faith of this sort does not, however, implicate the
reasonable privacy expectation protected by the Fourth
Amendment or violate the Fourth Amendment’s warrant
requirement. There is, to be sure, an important “limitation[]
on the government’s use of undercover informers to infiltrate
an organization engaging in protected first amendment
36                       FAZAGA V. WALLS

activities”: the government’s investigation must not be
conducted “for the purpose of abridging first amendment
freedoms.” Aguilar, 883 F.2d at 705. But that limitation on
voluntary conversations with undercover informants—
sometimes referred to as a “good faith” requirement,11 e.g.,
United States v. Mayer, 503 F.3d 740, 751 (9th Cir. 2007);
Aguilar, 883 F.2d at 705—is imposed by the First
Amendment, not the Fourth Amendment. As that
constitutional limitation is not grounded in privacy
expectations, it does not affect the warrant requirement under
the Fourth Amendment.

    Under the appropriate Fourth Amendment precepts,
“[u]ndercover operations, in which the agent is a so-called
‘invited informer,’ are not ‘searches’ under the Fourth
Amendment.” Mayer, 503 F.3d at 750 (emphasis added)
(quoting Aguilar, 883 F.2d at 701). “[A] defendant generally
has no privacy interest”—not merely an unreasonable
privacy interest—“in that which he voluntarily reveals to a
government agent.” Wahchumwah, 710 F.3d at 867 (emphasis
added). In other words, use of a government informant under
the invited informer doctrine—even if not in good faith in the
First Amendment sense—does not implicate the privacy
interests protected by the Fourth Amendment. Because our
inquiry under FISA is confined to whether a reasonable
expectation of privacy was violated and whether a warrant
was therefore required, see ACLU, 493 F.3d at 657 n.16, 683,
the First Amendment-grounded good-faith limitation does not
apply to our current inquiry.




    11
       We use this term in the remainder of this discussion to refer to the
constitutional limitation on the use of informants discussed in the text.
                     FAZAGA V. WALLS                         37

    Under the invited informer doctrine, Plaintiffs lacked a
reasonable expectation of privacy in the conversations
recorded by Monteilh to which he was a party. The Agent
Defendants are therefore not liable under FISA for this
category of surveillance.

    B. Recordings of Conversations in the Mosque Prayer
       Hall to Which Monteilh Was Not a Party

    Plaintiffs did have a privacy-grounded reasonable
expectation that their conversations in the mosque prayer hall
would not be covertly recorded by an individual who was not
present where Plaintiffs were physically located and was not
known to be listening in.12 The Agent Defendants are,
however, entitled to qualified immunity with respect to this
category of surveillance under the second prong of the
qualified immunity standard—whether “the right was ‘clearly
established’ at the time of the challenged conduct.” al-Kidd,
563 U.S. at 735 (quoting Harlow, 457 U.S. at 818).

     Again, the relevant questions here on the merits of the
FISA and Fourth Amendment issues are whether “a person
ha[s] exhibited an actual (subjective) expectation of privacy,”
and whether “the expectation [is] one that society is prepared
to recognize as ‘reasonable.’” Katz, 389 U.S. at 361 (Harlan,
J., concurring). To first determine whether an individual has
“exhibited an actual expectation of privacy,” we assess
whether “he [sought] to preserve [something] as private.”
Bond v. United States, 529 U.S. 334, 338 (2000) (alterations


    12
      We are not suggesting that the recording would have been
impermissible under FISA and the Fourth Amendment if the Agent
Defendants had obtained a warrant based on probable cause. Here,
however, no warrant was obtained.
38                     FAZAGA V. WALLS

in original) (quoting Smith v. Maryland, 442 U.S. 735, 740
(1979)). Based on the rules and customs of the mosque, and
the allegations in the complaint, we have no trouble
determining that Plaintiffs manifested an actual, subjective
expectation of privacy in their conversations there.

    The mosque prayer hall is not an ordinary public place. It
is a site of religious worship, a place for Muslims to come
together for prayer, learning, and fellowship. Plaintiffs allege
that the prayer hall “is [a] sacred space where particular rules
and expectations apply. Shoes are prohibited, one must be in
a state of ablution, discussing worldly matters is discouraged,
and the moral standards and codes of conduct are at their
strongest.” Notably, “[g]ossiping, eavesdropping, or
talebearing (namima—revealing anything where disclosure
is resented) is forbidden.” And ICOI, which Malik and
AbdelRahim attended, specifically prohibited audio and video
recording in the mosque without permission. When, on a rare
occasion, an outside entity did record an event or a speaker,
ICOI put up signs to notify congregants. Furthermore,
Plaintiffs explain in their complaint that halaqas, which are
small group meetings during which participants “discuss
theology or matters related to the practice of Islam,” are
understood by mosque attendees to be environments that
“ensure some measure of confidentiality among
participants.”13

    These privacy-oriented rules and customs confirm for us
that Plaintiffs held a subjective expectation of privacy in their
conversations among themselves while in the prayer hall.



    13
       We understand that description to imply that Monteilh recorded
conversations that occurred during halaqas in the mosque prayer hall.
                         FAZAGA V. WALLS                               39

    That Plaintiffs were not alone in the mosque prayer hall
does not defeat their claim that they manifested an
expectation of privacy.14 “Privacy does not require solitude.”
United States v. Taketa, 923 F.2d 665, 673 (9th Cir. 1991).
For example, “a person can have a subjective expectation that
his or her home will not be searched by the authorities, even
if he or she has invited friends into his or her home.” Trujillo
v. City of Ontario, 428 F. Supp. 2d 1094, 1102 (C.D. Cal.
2006), aff’d sub nom. Bernhard v. City of Ontario, 270 F.
App’x 518 (9th Cir. 2008). The same principle applies to
certain other enclosed locations in which individuals have
particular reason to expect confidentiality and repose. 15

     14
        The Agent Defendants cite Smith v. Maryland, 442 U.S. at 740–41,
to support the proposition that the unattended recordings in the mosque
prayer hall did not invade Plaintiffs’ reasonable expectation of privacy.
Smith and its progeny do not apply here. Smith concerned a pen register
installed and used by a telephone company, and held that an individual
enjoys no Fourth Amendment protection “in information he voluntary
turns over to third parties.” Id. at 743–44. But, as the Fourth Circuit has
stressed, Smith and the cases relying on it are concerned with “whether the
government invades an individual’s reasonable expectation of privacy
when it obtains, from a third party, the third party’s records.” United
States v. Graham, 824 F.3d 421, 426 (4th Cir. 2016) (en banc) (emphasis
added), abrogated on other grounds by Carpenter v. United States, 138 S.
Ct. 2206 (2018). Cases “involv[ing] direct government surveillance
activity,” including surreptitiously viewing, listening to, or recording
individuals—like the one before us—present a wholly separate question.
Id.
    15
       Taketa, for example, held that a state employee could hold an
expectation of privacy in his office even though the office was shared with
two others. 923 F.2d at 673. “[E]ven ‘private’ business offices are often
subject to the legitimate visits of coworkers, supervisors, and the public,
without defeating the expectation of privacy unless the office is ‘so open
to fellow employees or the public that no expectation of privacy is
reasonable.’” Id. (quoting O’Connor v. Ortega, 480 U.S. 709, 717–18
(1987)).
40                        FAZAGA V. WALLS

    Finally, the case law distinguishes between an expectation
of privacy in a place and an expectation of privacy as to
whether an individual’s conversations or actions in that place
would be covertly recorded by persons not themselves present
in that place.16 The Supreme Court has recently emphasized
the significant difference between obtaining information in
person and recording information electronically. See
Carpenter, 138 S. Ct. at 2219 (“Unlike the nosy neighbor
who keeps an eye on comings and goings, they are ever alert,
and their memory is nearly infallible.”). Here, given the
intimate and religious nature of the space and the express
prohibition on recording, Plaintiffs have adequately alleged
that they subjectively believed their conversations would not
be covertly recorded by someone not present in the prayer
hall for transmission to people not present in the prayer hall.17

    Having concluded that Plaintiffs exhibited a subjective
expectation of privacy, we now consider whether it was “one
that society is prepared to recognize as ‘reasonable.’” Katz,
389 U.S. at 361 (Harlan, J., concurring). In assessing whether


     16
       See also Taketa, 923 F.2d at 676 (“Taketa has no general privacy
interest in [his co-worker’s] office, but he may have an expectation of
privacy against being videotaped in it.”); Trujillo, 428 F. Supp. 2d at 1102
(considering the secret installation and use of a video camera in a police
department’s men’s locker room, and explaining that it was “immaterial”
that the plaintiffs changed their clothes in the presence of others, because
“[a] person can have a subjective expectation of privacy that he or she will
not be covertly recorded, even though he or she knows there are other
people in the locker room” (emphasis added)).
     17
       The complaint alleges that Plaintiffs lost “confidence in the mosque
as a sanctuary” after learning of Monteilh’s surveillance. This feeling of
the loss of privacy reinforces the conclusion that Plaintiffs exhibited an
actual expectation of privacy in their conversations in the mosque before
the alleged surveillance took place.
                        FAZAGA V. WALLS                             41

an individual’s expectation of privacy is reasonable, context
is key. See O’Connor, 480 U.S. at 715. “Although no single
rubric definitively resolves which expectations of privacy are
entitled to protection, the analysis is informed by historical
understandings ‘of what was deemed an unreasonable search
and seizure when [the Fourth Amendment] was adopted.’”
Carpenter, 138 S. Ct. at 2213–14 (alteration in original)
(footnote omitted) (quoting Carroll v. United States, 267 U.S.
132, 149 (1925)). Relevant here is the principle that “the
extent to which the Fourth Amendment protects people may
depend upon where those people are.” Minnesota v. Carter,
525 U.S. 83, 88 (1998) (emphasis added). We thus “assess the
nature of the location where [the] conversations were
seized”—here, the mosque prayer hall. United States v.
Gonzalez, Inc., 412 F.3d 1102, 1116–17 (9th Cir. 2005),
amended on denial of reh’g, 437 F.3d 854 (9th Cir. 2006).

    The sacred and private nature of the houses of worship
Plaintiffs attended distinguishes them from the types of
commercial and public spaces in which courts have held that
individuals lack a reasonable expectation of privacy.18 United
States v. Gonzalez, 328 F.3d 543 (9th Cir. 2003), for example,
held that the defendant had no reasonable expectation of
privacy in “a large, quasi-public mailroom at a public hospital
during ordinary business hours.” Id. at 547. The mailroom
had open doors, was visible to the outside via large windows,
and received heavy foot traffic. Id. In addition to focusing on
the physical specifics of the mailroom, Gonzalez emphasized


    18
       See, e.g., In re John Doe Trader No. One, 894 F.2d 240, 243–44
(7th Cir. 1990) (holding that a rule prohibiting tape recorders on the
trading floor “aimed at various forms of distracting behavior” and
explicitly “designed to protect ‘propriety and decorum’ not privacy” did
not support a reasonable expectation of privacy).
42                        FAZAGA V. WALLS

that public hospitals, “by their nature . . . create a diminished
expectation of privacy. The use of surveillance cameras in
hospitals for patient protection, for documentation of medical
procedures and to prevent theft of prescription drugs is not
uncommon.” Id. The mosque prayer halls in this case, by
contrast, have no characteristics similarly evidencing
diminished expectations of privacy or rendering such
expectations unreasonable.19 There are no urgent health or
safety needs justifying surveillance. And the use of
surveillance equipment at ICOI is not only uncommon, but
expressly forbidden.

    Our constitutional protection of religious observance
supports finding a reasonable expectation of privacy in such
a sacred space, where privacy concerns are acknowledged
and protected, especially during worship and other religious
observance. Cf. Mockaitis v. Harcleroad, 104 F.3d 1522,

     19
        Again, the fact that many people worshipped at the mosque does
not render the Plaintiffs’ expectations of privacy in their conversations (or
at the very least from, their expectations that their conversations would not
be covertly recorded) unreasonable. In Gonzalez, Inc., for example, we
held that individuals who owned and managed a small, family-run
business with up to 25 employees had “a reasonable expectation of
privacy over the on-site business conversations between their agents.”
412 F.3d at 1116–17. The Gonzalez family, whose phone calls were
intercepted, were not alone in their place of business, and their calls could
have been overheard by others who were present. But we concluded that
they nonetheless had a reasonable expectation of privacy over their
conversations because they owned the office, had full access to the
building, and exercised managerial control over the office’s day-to-day
operations. Id. Similarly, United States v. McIntyre, 582 F.2d 1221 (9th
Cir. 1978), rejected the argument that a police officer lacked a reasonable
expectation of privacy over conversations had in his office because his
office door was open and a records clerk worked nearby in an adjacent
room. Id. at 1224. “A business office need not be sealed to offer its
occupant a reasonable degree of privacy,” we reasoned. Id.
                     FAZAGA V. WALLS                       43

1533 (9th Cir. 1997) (holding that, based in part on “the
nation’s history of respect for religion in general,” a priest
had a reasonable expectation of privacy in his conversation
with an individual during confession), overruled on other
grounds by City of Boerne v. Flores, 521 U.S. 507 (1997).
Thus, Plaintiffs’ expectation that their conversations in the
mosque prayer hall would be confidential among participants
(unless shared by one of them with others), and so would not
be intercepted by recording devices planted by absent
government agents was objectively reasonable.

    Finally, “[w]here the materials sought to be seized may be
protected by the First Amendment, the requirements of the
Fourth Amendment must be applied with ‘scrupulous
exactitude.’” Zurcher v. Stanford Daily, 436 U.S. 547, 564
(1978) (quoting Stanford v. Texas, 379 U.S. 476, 485 (1965)).
“National security cases,” like the one here, “often reflect a
convergence of First and Fourth Amendment values not
present in cases of ‘ordinary’ crime.” United States v. U.S.
District Court (Keith), 407 U.S. 297, 313 (1972). “Fourth
Amendment protections become the more necessary when the
targets of official surveillance may be those suspected of
unorthodoxy . . . .” Id. at 314.

   Accordingly, we hold that Plaintiffs had a reasonable
expectation of privacy that their conversations in the mosque
prayer hall would not be covertly recorded by a government
agent not party to the conversations.

    As of 2006 and 2007, however, no federal or state court
decision had held that individuals generally have a reasonable
expectation of privacy from surveillance in places of worship.
Our court had declined to read Katz as established authority
“for the proposition that a reasonable expectation of privacy
44                   FAZAGA V. WALLS

attaches to church worship services open to the public.” The
Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518,
527 (9th Cir. 1989). Noting that there was a lack of clearly
established law so concluding, Presbyterian Church held that
Immigration and Naturalization Service (“INS”) officials
were entitled to qualified immunity from a Fourth
Amendment challenge to undercover electronic surveillance
of church services conducted without a warrant and without
probable cause. Id. No case decided between Presbyterian
Church and the incidents giving rise to this case decided
otherwise. And no case decided during that period addressed
circumstances more like those here, in which there are some
specific manifestations of an expectation of privacy in the
particular place of worship. Arguably pertinent was
Mockaitis, but that case concerned the confession booth, not
the church premises generally. 104 F.3d at 1533. The
circumstances here fall between Presbyterian Church and
Mockaitis, so there was no clearly established law here
applicable. The Agent Defendants are thus entitled to
qualified immunity as to this category of surveillance.

     C. Recordings Made by Planted Devices

    It was, of course, clearly established in 2006 and 2007
that individuals have a reasonable expectation of privacy
from covert recording of conversations in their homes, cars,
and offices, and on their phones. See, e.g., Kyllo, 533 U.S. at
31 (home); New York v. Class, 475 U.S. 106, 115 (1986)
(cars); Katz, 389 U.S. at 360–61 (Harlan, J., concurring)
(enclosed telephone booths); Taketa, 923 F.2d at 673 (office);
McIntyre, 582 F.2d at 1223–24 (office). The Agent
Defendants accept these well-established legal propositions.
But they maintain that the complaint’s allegations that the
FBI planted electronic surveillance equipment in Fazaga’s
                     FAZAGA V. WALLS                         45

office and AbdelRahim’s house, car, and phone are too
conclusory to satisfy Iqbal’s plausibility standard, and so do
not adequately allege on the merits a violation of Plaintiffs’
rights under FISA. See al-Kidd, 563 U.S. at 735; Ashcroft v.
Iqbal, 556 U.S. 662, 678–79 (2009). We cannot agree.

    Plaintiffs offer sufficient well-pleaded facts to
substantiate their allegation that some of the Agent
Defendants—Allen and Armstrong—were responsible for
planting devices in AbdelRahim’s house. Specifically, the
complaint details one occasion on which Allen and
Armstrong asked Monteilh about something that had
happened in AbdelRahim’s house that Monteilh had not yet
communicated to them, and explained that they knew about
it because they had audio surveillance in the house.

    Plaintiffs also allege sufficient facts with regard to those
two Agent Defendants in support of their allegation of
electronic surveillance of Fazaga’s office in the OCIF mosque
in Mission Viejo: Allen and Armstrong told Monteilh that
electronic surveillance was “spread indiscriminately” across
“at least eight area mosques including ICOI, and mosques in
Tustin, Mission Viejo, Culver City, Lomita, West Covina,
and Upland,” and that “they could get in a lot of trouble if
people found out what surveillance they had in the mosques.”
They also instructed Monteilh to use a video camera hidden
in a shirt button to record the interior of OCIF and “get a
sense of the schematics of the place—entrances, exits, rooms,
bathrooms, locked doors, storage rooms, as well as security
measures and whether any security guards were
armed.”Armstrong later told Monteilh that he and Allen used
the information he recorded to enter OCIF.
46                        FAZAGA V. WALLS

    As to Tidwell, Walls, and Rose, however, the complaint
does not plausibly allege their personal involvement with
respect to the planted devices.20 The complaint details
Tidwell, Walls, and Rose’s oversight of Monteilh, including
that they read his daily notes and were apprised, through
Allen and Armstrong, of the information he collected. But the
complaint never alleges that Monteilh was involved in
planting devices in AbdelRahim’s house, car, or phone, or in
Fazaga’s office; those actions are attributed only to unnamed
FBI agents.

    The complaint also offers general statements that Tidwell,
Walls, and Rose supervised Allen and Armstrong.21 But
“[g]overnment officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory
of respondeat superior.” Iqbal, 556 U.S. at 676. Instead, “a
plaintiff must plead that each Government-official defendant,
through the official’s own individual actions, has violated the
Constitution.” Id. Plaintiffs have not done so as to this
category of surveillance with regard to Tidwell, Walls, and
Rose. The complaint does not allege that the supervisors
knew of, much less ordered or arranged for, the planting of

     20
        Because we concluded with respect to the first two categories of
surveillance either that Plaintiffs had no reasonable expectation of privacy
or that the expectation was not clearly established in the case law at the
pertinent time, we reach the question whether Plaintiffs plausibly allege
the personal involvement of Tidwell, Wall, and Rose only with respect to
the third category of surveillance.
     21
       The relevant allegations were only that Walls and Rose “actively
monitored, directed, and authorized the actions of Agents Allen and
Armstrong and other agents at all times relevant in this action, for the
purpose of surveilling Plaintiffs and other putative class members because
they were Muslim” and that Tidwell “authorized and actively directed the
actions of Agents Armstrong, Allen, Rose, Walls, and other agents.”
                         FAZAGA V. WALLS                               47

the recording devices in AbdelRahim’s home or Fazaga’s
office, so the supervisors are entitled to qualified immunity as
to that surveillance. See, e.g., Chavez v. United States,
683 F.3d 1102, 1110 (9th Cir. 2012); Ortez v. Washington
County, 88 F.3d 804, 809 (9th Cir. 1996).

    In sum, Plaintiffs allege a FISA claim against Allen and
Armstrong for recordings made by devices planted by FBI
agents in AbdelRahim’s house and Fazaga’s office. As to all
other categories of surveillance, the Agent Defendants either
did not violate FISA; are entitled to qualified immunity on
the FISA claim because Plaintiffs’ reasonable expectation of
privacy was not clearly established; or were not plausibly
alleged in the complaint to have committed any FISA
violation that may have occurred.

II. The State Secrets Privilege and FISA Preemption

    Having addressed the only claim to survive Defendants’
motions to dismiss in the district court, we turn to the district
court’s dismissal of the remaining claims pursuant to the state
secrets privilege.22 Plaintiffs argue that reversal is warranted
“on either of two narrower grounds.” First, Plaintiffs argue
that, at this preliminary stage, the district court erred in
concluding that further litigation would require the disclosure
of privileged information. Second, Plaintiffs maintain that the
district court should have relied on FISA’s alternative
procedures for handling sensitive national security
information. Because we agree with Plaintiffs’ second


    22
        Plaintiffs do not dispute at this juncture the district court’s
conclusion that the information over which the Attorney General asserted
the state secrets privilege indeed comes within the privilege. We therefore
assume as much for present purposes.
48                   FAZAGA V. WALLS

argument, we do not decide the first. We therefore need not
review the Government’s state secrets claim to decide
whether the standard for dismissal at this juncture—whether
the district court properly “determine[d] with certainty . . .
that litigation must be limited or cut off in order to protect
state secrets, even before any discovery or evidentiary
requests have been made,” Mohamed v. Jeppesen Dataplan,
Inc., 614 F.3d 1070, 1081 (9th Cir. 2010) (en banc)—has
been met.

    The initial question as to Plaintiffs’ second argument is
whether the procedures established under FISA for
adjudicating the legality of challenged electronic surveillance
replace the common law state secrets privilege with respect
to such surveillance to the extent that privilege allows the
categorical dismissal of causes of action. The question is a
fairly novel one. We are the first federal court of appeals to
address it. Only two district courts, both in our circuit, have
considered the issue. Those courts both held that FISA
“displace[s] federal common law rules such as the state
secrets privilege with regard to matters within FISA’s
purview.” Jewel v. NSA, 965 F. Supp. 2d 1090, 1105–06
(N.D. Cal. 2013); accord In re NSA Telecomms. Records
Litig. (In re NSA), 564 F. Supp. 2d 1109, 1117–24 (N.D. Cal.
2008). We rely on similar reasoning to that in those district
court decisions, but reach a narrower holding as to the scope
of FISA preemption.

    Our analysis of this issue proceeds as follows. First, we
offer a brief review of the state secrets privilege. Second, we
discuss one reason why the district court should not have
dismissed the search claims based on the privilege. Third, we
explain why FISA displaces the dismissal remedy of the
common law state secrets privilege as applied to electronic
                         FAZAGA V. WALLS                             49

surveillance generally. Then we review the situations in
which FISA’s procedures under § 1806(f) apply, including
affirmative constitutional challenges to electronic
surveillance. Finally, we explain why the present case fits at
least one of the situations in which FISA’s procedures apply.

     Before we go on, we emphasize that although we hold
that Plaintiffs’ electronic surveillance claims are not subject
to outright dismissal at the pleading stage because FISA
displaces the state secrets privilege, the FISA procedure is,
not surprisingly, extremely protective of government secrecy.
Under that procedure, Plaintiffs’ religion claims will not go
forward under the open and transparent processes to which
litigants are normally entitled. Instead, in the interest of
protecting national security, the stringent FISA procedures
require severe curtailment of the usual protections afforded
by the adversarial process and due process. See, e.g., Yamada
v. Nobel Biocare Holding AG, 825 F.3d 536, 545 (9th Cir.
2016) (holding that the district court’s use of ex parte, in
camera submissions to support its fee order violated
defendants’ due process rights); Intel Corp. v. Terabyte Int’l,
Inc., 6 F.3d 614, 623 (9th Cir. 1993) (same); MGIC Indem.
Corp. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986) (same).
As it is Plaintiffs who have invoked the FISA procedures, we
proceed on the understanding that they are willing to accept
those restrictions to the degree they are applicable as an
alternative to dismissal, and so may not later seek to contest
them.23




     23
        We discuss how the district court is to apply the FISA procedures
to Plaintiffs’ surviving claims on remand in infra Part V.
50                   FAZAGA V. WALLS

     A. The State Secrets Privilege

    “The Supreme Court has long recognized that in
exceptional circumstances courts must act in the interest of
the country’s national security to prevent disclosure of state
secrets, even to the point of dismissing a case entirely.”
Jeppesen, 614 F.3d at 1077 (citing Totten v. United States,
92 U.S. 105, 107 (1876)). Neither the Supreme Court nor this
court has precisely delineated what constitutes a state secret.
Reynolds referred to “military matters which, in the interest
of national security, should not be divulged.” 345 U.S. at 10.
Jeppesen added that not all classified information is
necessarily privileged under Reynolds. 614 F.3d at 1082. The
state secrets privilege has been held to apply to information
that would result in “impairment of the nation’s defense
capabilities, disclosure of intelligence-gathering methods or
capabilities, and disruption of diplomatic relations with
foreign governments, or where disclosure would be inimical
to national security.” Black v. United States, 62 F.3d 1115,
1118 (8th Cir. 1995) (citations and internal quotation marks
omitted). But courts have acknowledged that terms like
“military or state secrets” are “amorphous in nature,” id.
(citation omitted); the phrase “inimical to national security”
certainly is. And although purely domestic investigations with
no international connection do not involve state secrets, we
recognize that the contours of the privilege are perhaps even
more difficult to draw in a highly globalized, post-9/11
environment, where the lines between foreign and domestic
security interests may be blurred.

    We do not attempt to resolve the ambiguity or to explain
definitively what constitutes a “state secret.” But we note the
ambiguity nonetheless at the outset, largely as a reminder
that, as our court has previously noted, “[s]imply saying
                      FAZAGA V. WALLS                         51

‘military secret,’ ‘national security’ or ‘terrorist threat’ or
invoking an ethereal fear that disclosure will threaten our
nation is insufficient to support the privilege.” Al-Haramain
Islamic Found., Inc. v. Bush (Al-Haramain I), 507 F.3d 1190,
1203 (9th Cir. 2007).

    Created by federal common law, the modern state secrets
doctrine has two applications: the Totten bar and the Reynolds
privilege. The Totten bar is invoked “‘where the very subject
matter of the action’ is ‘a matter of state secret.’” Id. at 1077
(quoting Reynolds, 345 U.S. at 11 n.26). It “completely bars
adjudication of claims premised on state secrets.” Id.; see also
Totten, 95 U.S. at 106–07. The Reynolds privilege, by
contrast, “is an evidentiary privilege rooted in federal
common law.” Kasza v. Browner, 133 F.3d 1159, 1167 (9th
Cir. 1998); see also Gen. Dynamics Corp. v. United States,
563 U.S. 478, 485 (2011). It “may be asserted at any time,”
and successful assertion “will remove the privileged evidence
from the litigation.” Jeppesen, 614 F.3d at 1079–80.

     Here, after the Attorney General asserted the Reynolds
privilege and the Government submitted both public and
classified declarations setting out the parameters of its state
secrets contention, the Government Defendants requested
dismissal of Plaintiffs’ religion claims in toto—but not the
Fourth Amendment and FISA claims—at the pleading stage.
“Dismissal at the pleading stage under Reynolds is a drastic
result and should not be readily granted.” Jeppesen, 614 F.3d
at 1089. Only “if state secrets are so central to a proceeding
that it cannot be litigated without threatening their disclosure”
is dismissal the proper course. Id. at 1081 (quoting El-Masri
v. United States, 479 F.3d 296, 308 (4th Cir. 2007)). Because
there is a strong interest in allowing otherwise meritorious
litigation to go forward, the court’s inquiry into the need for
52                   FAZAGA V. WALLS

the secret information should be specific and tailored, not
vague and general. See id. at 1081–82; In re Sealed Case,
494 F.3d 139, 144–54 (D.C. Cir. 2007).

     Specifically, the Reynolds privilege will justify dismissal
of the action in three circumstances: (1) if “the plaintiff
cannot prove the prima facie elements of her claim with
nonprivileged evidence”; (2) if “the privilege deprives the
defendant of information that would otherwise give the
defendant a valid defense to the claim”; and (3) if “privileged
evidence” is “inseparable from nonprivileged information
that will be necessary to the claims or defenses” such that
“litigating the case to a judgment on the merits would present
an unacceptable risk of disclosing state secrets.” Jeppesen,
614 F.3d at 1083 (citations omitted). The district court
assumed that Plaintiffs could make a prima facie case without
resorting to state secrets evidence, but determined that the
second and third circumstances exist in this case and require
dismissal.

     B. The District Court’s Dismissal of the Search
        Claims Based on the State Secrets Privilege

    As a threshold matter, before determining whether FISA
displaces the state secrets privilege with regard to electronic
surveillance, we first consider which of Plaintiffs’ claims
might otherwise be subject to dismissal under the state secrets
privilege. Although the Government expressly did not request
dismissal of the Fourth Amendment and FISA claims based
on the privilege, the district court nonetheless dismissed the
Fourth Amendment claim on that basis. That was error.

    The Government must formally claim the Reynolds
privilege. Reynolds, 345 U.S. at 7–8. The privilege is “not
                      FAZAGA V. WALLS                         53

simply an administrative formality” that may be asserted by
any official. Jeppesen, 614 F.3d at 1080 (quoting United
States v. W.R. Grace, 526 F.3d 499, 507–08 (9th Cir. 2008)
(en banc)). Rather, the formal claim must be “lodged by the
head of the department which has control over the matter.”
Reynolds, 345 U.S. at 8. The claim must “reflect the
certifying official’s personal judgment; responsibility for
[asserting the privilege] may not be delegated to lesser-
ranked officials.” Jeppesen, 614 F.3d at 1080. And the claim
“must be presented in sufficient detail for the court to make
an independent determination of the validity of the claim of
privilege and the scope of the evidence subject to the
privilege.” Id. Such unusually strict procedural requirements
exist because “[t]he privilege ‘is not to be lightly invoked,’”
especially when dismissal of the entire action is sought. Id.
(quoting Reynolds, 345 U.S. at 7).

    Here, although the Government has claimed the Reynolds
privilege over certain state secrets, it has not sought dismissal
of the Fourth Amendment and FISA claims based on its
invocation of the privilege. In light of that position, the
district court should not have dismissed those claims. In
doing so, its decision was inconsistent with Jeppesen’s
observation that, “[i]n evaluating the need for secrecy, ‘we
acknowledge the need to defer to the Executive on matters of
foreign policy and national security and surely cannot
legitimately find ourselves second guessing the Executive in
this arena.’” 614 F.3d at 1081–82 (quoting Al-Haramain I,
507 F.3d at 1203). Just as the Executive is owed deference
when it asserts that exclusion of the evidence or dismissal of
the case is necessary to protect national security, so the
Executive is necessarily also owed deference when it asserts
that national security is not threatened by litigation.
54                   FAZAGA V. WALLS

    Indeed, Jeppesen cautioned that courts should work “to
ensure that the state secrets privilege is asserted no more
frequently and sweepingly than necessary.” Id. at 1082
(quoting Ellsberg v. Mitchell, 709 F.2d 51, 58 (D.C. Cir.
1983)). Dismissing claims based on the privilege where the
Government has expressly told the court it is not necessary to
do so—and, in particular, invoking the privilege to dismiss,
at the pleading stage, claims the Government has expressly
told the court it need not dismiss on grounds of
privilege—cuts directly against Jeppesen’s call for careful,
limited application of the privilege.

    Although the Government Defendants expressly did not
request dismissal of the search claims under the state secrets
privilege, the Agent Defendants did so request. In declining
to seek dismissal of the search claims based on the state
secrets privilege, the Government explained:

       At least at this stage of the proceedings,
       sufficient non-privileged evidence may be
       available to litigate these claims should they
       otherwise survive motions to dismiss on non-
       privilege grounds. The FBI has previously
       disclosed in a separate criminal proceeding
       that Monteilh collected audio and video
       information for the FBI, and some of that
       audio and video information was produced in
       that prior case. The FBI has been reviewing
       additional audio and video collected by
       Monteilh for possible disclosure in connection
       with further proceedings on the issue of
       whether the FBI instructed or permitted
       Monteilh to leave recording devices
       unattended in order to collect non-consenting
                     FAZAGA V. WALLS                        55

       communications. The FBI expects that the
       majority of the audio and video will be
       available in connection with further
       proceedings. Thus, while it remains possible
       that the need to protect properly privileged
       national security information might still
       foreclose litigation of these claims, at present
       the FBI and official capacity defendants do
       not seek to dismiss these claims based on the
       privilege assertion.

The Agent Defendants note that the Government focuses on
the public disclosure of recordings collected by Monteilh, and
point out that Plaintiffs also challenge surveillance conducted
without Monteilh’s involvement—namely, the planting of
recording devices by FBI agents in Fazaga’s office and
AbdelRahim’s home, car, and phone. Allegations concerning
the planting of recording devices by FBI agents other than
Monteilh, the Agent Defendants argue, are the “sources and
methods” discussed in the Attorney General’s invocation of
the privilege. The Agent Defendants thus maintain that
because the Government’s reasons for not asserting the
privilege over the search claims do not apply to all of the
surveillance encompassed by the search claims, dismissal as
to the search claims is in fact necessary.

    The Agent Defendants, however, are not uniquely subject
to liability for the planted devices. The Fourth Amendment
claim against the Government Defendants likewise applies to
that category of surveillance. See infra Part III.A. The Agent
Defendants—officials sued in their individual capacities—are
not the protectors of the state secrets evidence; the
Government is. Accordingly, and because the Agent
Defendants have not identified a reason they specifically
56                       FAZAGA V. WALLS

require dismissal to protect against the harmful disclosure of
state secrets where the Government does not, we decline to
accept their argument that the Government’s dismissal
defense must be expanded beyond the religion claims.24

    In short, in determining sua sponte that particular claims
warrant dismissal under the state secrets privilege, the district
court erred. For these reasons, we will not extend FISA’s
procedures to challenges to the lawfulness of electronic
surveillance to the degree the Government agrees that such
challenges may be litigated in accordance with ordinary
adversarial procedures without compromising national
security.

     C. FISA Displacement of the State Secrets Privilege

     Before the enactment of FISA in 1978, foreign
intelligence surveillance and the treatment of evidence
implicating state secrets were governed purely by federal
common law. Federal courts develop common law “in the
absence of an applicable Act of Congress.” City of Milwaukee
v. Illinois, 451 U.S. 304, 313 (1981). “Federal common law
is,” however, “a ‘necessary expedient’ and when Congress
addresses a question previously governed by a decision rested
on federal common law the need for such an unusual exercise
of lawmaking by federal courts disappears.” Id. (citation
omitted). Once “the field has been made the subject of

     24
       Although the Government may assert the state secrets privilege
even when it is not a party to the case, see Jeppesen, 614 F.3d at 1080, we
have not found—and the Agent Defendants have not cited—any case
other than the one at hand in which a court granted dismissal under the
privilege as to non-Government defendants, notwithstanding the
Government’s assertion that the claims at issue may be litigated with
nonprivileged information.
                         FAZAGA V. WALLS                               57

comprehensive legislation or authorized administrative
standards,” federal common law no longer applies. Id.
(quoting Texas v. Pankey, 441 F.2d 236, 241 (10th Cir.
1971)).

    To displace federal common law, Congress need not
“affirmatively proscribe[] the use of federal common law.”
Id. at 315. Rather, “to abrogate a common-law principle, the
statute must ‘speak directly’ to the question addressed by the
common law.” United States v. Texas, 507 U.S. 529, 534
(1993) (quoting Mobil Oil Corp. v. Higginbotham, 436 U.S.
618, 625 (1978)). As we now explain, in enacting FISA,
Congress displaced the common law dismissal remedy
created by the Reynolds state secrets privilege as applied to
electronic surveillance within FISA’s purview. 25

    We have specifically held that because “the state secrets
privilege is an evidentiary privilege rooted in federal common
law . . . the relevant inquiry in deciding if [a statute] preempts
the state secrets privilege is whether the statute ‘[speaks]
directly to [the] question otherwise answered by federal
common law.’” Kasza, 133 F.3d at 1167 (second and third
alterations in original) (quoting County of Oneida v. Oneida
Indian Nation, 470 U.S. 226, 236–37 (1985)).26 Nonetheless,
the Government maintains, in a vague and short paragraph in
its brief, that Congress cannot displace the state secrets

    25
        Our holding concerns only the Reynolds privilege, not the Totten
justiciability bar.
    26
       Applying this principle, Kasza concluded that section 6001 of the
Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6961,
did not preempt the state secrets privilege as to RCRA regulatory material,
as “the state secrets privilege and § 6001 have different purposes.”
133 F.3d at 1168.
58                   FAZAGA V. WALLS

evidentiary privilege absent a clear statement, and that,
because Plaintiffs cannot point to a clear statement,
“principles of constitutional avoidance” require rejecting the
conclusion that FISA’s procedures displace the dismissal
remedy of the state secrets privilege with regard to electronic
surveillance.

    In support of this proposition, the Government cites two
out-of-circuit cases, El-Masri v. United States, 479 F.3d 296,
and Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991). El-
Masri does not specify a clear statement rule; it speaks
generally about the constitutional significance of the state
secrets privilege, while recognizing its common law roots.
479 F.3d at 303–04. Armstrong holds generally that the clear
statement rule must be applied “to statutes that significantly
alter the balance between Congress and the President,” but
does not apply that principle to the state secrets privilege.
924 F.2d at 289. So neither case is directly on point.

    Under our circuit’s case law, a clear statement in the
sense of an explicit abrogation of the common law state
secrets privilege is not required to decide that a statute
displaces the privilege. Rather, if “the statute ‘[speaks]
directly to [the] question otherwise answered by federal
common law,’” that is sufficient. Kasza, 133 F.3d at 1167
(second and third alterations in original) (quoting Oneida,
470 U.S. at 236–37); see also Texas, 507 U.S. at 534.
Although we, as a three-judge panel, could not hold
otherwise, we would be inclined in any event to reject any
clear statement rule more stringent than Kasza’s “speak
directly to the question” requirement in this context.

    The state secrets privilege may have “a constitutional
‘core’ or constitutional ‘overtones,’” In re NSA, 564 F. Supp.
                     FAZAGA V. WALLS                        59

2d at 1124, but, at bottom, it is an evidentiary rule rooted in
common law, not constitutional law. The Supreme Court has
so emphasized, explaining that Reynolds “decided a purely
evidentiary dispute by applying evidentiary rules.” Gen.
Dynamics, 563 U.S. at 485. To require express abrogation, by
name, of the state secrets privilege would be inconsistent with
the evidentiary roots of the privilege.

    In any event, the text of FISA does speak quite directly to
the question otherwise answered by the dismissal remedy
sometimes required by the common law state secrets
privilege. Titled “In camera and ex parte review by district
court,” § 1806(f) provides:

       Whenever a court or other authority is notified
       pursuant to subsection (c) or (d) of this
       section, or whenever a motion is made
       pursuant to subsection (e) of this section, or
       whenever any motion or request is made by an
       aggrieved person pursuant to any other statute
       or rule of the United States or any State before
       any court or other authority of the United
       States or any State to discover or obtain
       applications or orders or other materials
       relating to electronic surveillance or to
       discover, obtain, or suppress evidence or
       information obtained or derived from
       electronic surveillance under this chapter, the
       United States district court or, where the
       motion is made before another authority, the
       United States district court in the same
       district as the authority, shall,
       notwithstanding any other law, if the Attorney
       General files an affidavit under oath that
60                   FAZAGA V. WALLS

       disclosure or an adversary hearing would
       harm the national security of the United
       States, review in camera and ex parte the
       application, order, and such other materials
       relating to the surveillance as may be
       necessary to determine whether the
       surveillance of the aggrieved person was
       lawfully authorized and conducted. In making
       this determination, the court may disclose to
       the aggrieved person, under appropriate
       security procedures and protective orders,
       portions of the application, order, or other
       materials relating to the surveillance only
       where such disclosure is necessary to make an
       accurate determination of the legality of the
       surveillance.

50 U.S.C. § 1806(f) (emphasis added).

    The phrase “notwithstanding any other law,” the several
uses of the word “whenever,” and the command that courts
“shall” use the § 1806(f) procedures to decide the lawfulness
of the surveillance if the Attorney General asserts that
national security is at risk, confirm Congress’s intent to make
the in camera and ex parte procedure the exclusive procedure
for evaluating evidence that threatens national security in the
context of electronic surveillance-related determinations. Id.
(emphasis added). That mandatory procedure necessarily
overrides, on the one hand, the usual procedural rules
precluding such severe compromises of the adversary process
and, on the other, the state secrets evidentiary dismissal
option. See H.R. Rep. No. 95-1283, pt. 1, at 91 (1978) (“It is
to be emphasized that, although a number of different
procedures might be used to attack the legality of the
                         FAZAGA V. WALLS                              61

surveillance, it is the procedures set out in subsections (f) and
(g) ‘notwithstanding any other law’ that must be used to
resolve the question.”).27

     The procedures set out in § 1806(f) are animated by the
same concerns—threats to national security—that underlie
the state secrets privilege. See Jeppesen, 614 F.3d at 1077,
1080. And they are triggered by a process—the filing of an
affidavit under oath by the Attorney General—nearly
identical to the process that triggers application of the state
secrets privilege, a formal assertion by the head of the
relevant department. See id. at 1080. In this sense, § 1806(f)
“is, in effect, a ‘codification of the state secrets privilege for
purposes of relevant cases under FISA, as modified to reflect
Congress’s precise directive to the federal courts for the
handling of [electronic surveillance] materials and
information with purported national security implications.’”
Jewel, 965 F. Supp. 2d at 1106 (quoting In re NSA, 564 F.
Supp. 2d at 1119); see also In re NSA, 564 F. Supp. 2d
at 1119 (holding that “the Reynolds protocol has no role
where section 1806(f) applies”). That § 1806(f) requires in
camera and ex parte review in the exact circumstance that
could otherwise trigger dismissal of the case demonstrates
that § 1806(f) supplies an alternative mechanism for the
consideration of electronic state secrets evidence. Section
1806(f) therefore eliminates the need to dismiss the case
entirely because of the absence of any legally sanctioned

    27
      Whether “notwithstanding” language in a given statute should be
understood to supersede all otherwise applicable laws or read more
narrowly to override only previously existing laws depends on the overall
context of the statute. See United States v. Novak, 476 F.3d 1041, 1046–47
(9th Cir. 2007) (en banc). Here, the distinction does not matter, as the
Reynolds common law state secrets evidentiary privilege preceded the
enactment of FISA.
62                   FAZAGA V. WALLS

mechanism for a major modification of ordinary judicial
procedures—in camera, ex parte decisionmaking.

    This conclusion is consistent with the overall structure of
FISA. FISA does not concern Congress and the President
alone. Instead, the statute creates “a comprehensive, detailed
program to regulate foreign intelligence surveillance in the
domestic context.” In re NSA, 564 F. Supp. 2d at 1118. FISA
“set[s] out in detail roles for all three branches of
government, providing judicial and congressional oversight
of the covert surveillance activities by the executive branch
combined with measures to safeguard secrecy necessary to
protect national security.” Id. at 1115. And it provides rules
for the executive branch to follow in “undertak[ing]
electronic surveillance and physical searches for foreign
intelligence purposes in the domestic sphere.” Id.

    Moreover, FISA establishes a special court to hear
applications for and grant orders approving electronic
surveillance under certain circumstances. See 50 U.S.C.
§ 1803. FISA also includes a private civil enforcement
mechanism, see id. § 1810, and sets out a procedure by which
courts should consider evidence that could harm the country’s
national security, see id. § 1806(f). The statute thus broadly
involves the courts in the regulation of electronic surveillance
relating to national security, while devising extraordinary,
partially secret judicial procedures for carrying out that
involvement. And Congress expressly declared that FISA,
along with the domestic law enforcement electronic
surveillance provisions of the Wiretap Act and the Stored
Communications Act, are “the exclusive means by which
electronic surveillance . . . may be conducted.” 18 U.S.C.
§ 2511(2)(f).
                     FAZAGA V. WALLS                         63

    The legislative history of FISA confirms Congress’s
intent to displace the remedy of dismissal for the common
law state secrets privilege. FISA was enacted in response to
“revelations that warrantless electronic surveillance in the
name of national security ha[d] been seriously abused.”
S. Rep. No. 95-604, pt. 1, at 7 (1978), reprinted in 1978
U.S.C.C.A.N. 3904, 3908. The Senate Select Committee to
Study Governmental Operations with Respect to Intelligence
Activities, a congressional task force formed in 1975 and
known as the Church Committee, exposed the unlawful
surveillance in a series of investigative reports. The Church
Committee documented “a massive record of intelligence
abuses over the years,” in which “the Government ha[d]
collected, and then used improperly, huge amounts of
information about the private lives, political beliefs and
associations of numerous Americans.” S. Select Comm. to
Study Governmental Operations with Respect to Intelligence
Activities, Book II: Intelligence Activities and the Rights of
Americans, S. Rep. No. 94-755, at 290 (1976). The
Committee concluded that these abuses had “undermined the
constitutional rights of citizens . . . primarily because checks
and balances designed by the framers of the Constitution to
assure accountability [were not] applied.” Id. at 289.

    Urging “fundamental reform,” id. at 289, the Committee
recommended legislation to “make clear to the Executive
branch that it will not condone, and does not accept, any
theory of inherent or implied authority to violate the
Constitution,” id. at 297. Observing that the Executive would
have “no such authority after Congress has . . . covered the
field by enactment of a comprehensive legislative charter”
that would “provide the exclusive legal authority for domestic
security activities,” id. at 297, the Committee recommended
that Congress create civil remedies for unlawful surveillance,
64                    FAZAGA V. WALLS

both to “afford effective redress to people who are injured by
improper federal intelligence activity” and to “deter improper
intelligence activity,” id. at 336. Further, in recognition of the
potential interplay between promoting accountability and
ensuring security, the Committee noted its “belie[f] that the
courts will be able to fashion discovery procedures, including
inspection of material in chambers, and to issue orders as the
interests of justice require, to allow plaintiffs with substantial
claims to uncover enough factual material to argue their case,
while protecting the secrecy of governmental information in
which there is a legitimate security interest.” Id. at 337.

    FISA implemented many of the Church Committee’s
recommendations. In striking a careful balance between
assuring the national security and protecting against
electronic surveillance abuse, Congress carefully considered
the role previously played by courts, and concluded that the
judiciary had been unable effectively to achieve an
appropriate balance through federal common law:

        [T]he development of the law regulating
        electronic surveillance for national security
        purposes has been uneven and inconclusive.
        This is to be expected where the development
        is left to the judicial branch in an area where
        cases do not regularly come before it.
        Moreover, the development of standards and
        restrictions by the judiciary with respect to
        electronic surveillance for foreign intelligence
        purposes accomplished through case law
        threatens both civil liberties and the national
        security because that development occurs
        generally in ignorance of the facts,
        circumstances, and techniques of foreign
                     FAZAGA V. WALLS                         65

        intelligence electronic surveillance not present
        in the particular case before the court. . . .
        [T]he tiny window to this area which a
        particular case affords provides inadequate
        light by which judges may be relied upon to
        develop case law which adequately balances
        the rights of privacy and national security.

H. Rep. No. 95-1283, pt. 1, at 21. FISA thus represents an
effort to “provide effective, reasonable safeguards to ensure
accountability and prevent improper surveillance,” and to
“strik[e] a fair and just balance between protection of national
security and protection of personal liberties.” S. Rep. No. 95-
604, pt. 1, at 7.

    In short, the procedures outlined in § 1806(f) “provide[]
a detailed regime to determine whether surveillance ‘was
lawfully authorized and conducted,’” Al-Haramain I,
507 F.3d at 1205 (citing 50 U.S.C. § 1806(f)), and constitute
“Congress’s specific and detailed description for how courts
should handle claims by the government that the disclosure
of material relating to or derived from electronic surveillance
would harm national security,” Jewel, 965 F. Supp. 2d at
1106 (quoting In re NSA, 564 F. Supp. 2d at 1119). Critically,
the FISA approach does not publicly expose the state secrets.
It does severely compromise Plaintiffs’ procedural rights, but
not to the degree of entirely extinguishing potentially
meritorious substantive rights.
66                   FAZAGA V. WALLS

     D. Applicability of FISA’s § 1806(f) Procedures to
        Affirmative Legal Challenges to Electronic
        Surveillance

    Having determined that, where they apply, § 1806(f)’s
procedures displace a dismissal remedy for the Reynolds state
secrets privilege, we now consider whether § 1806(f)’s
procedures apply to the circumstances of this case.

    By the statute’s terms, the procedures set forth in
§ 1806(f) are to be used—where the Attorney General files
the requisite affidavit—in the following circumstances:

        [w]henever a court or other authority is
        notified pursuant to subsection (c) or (d) of
        this section, or whenever a motion is made
        pursuant to subsection (e) of this section, or
        whenever any motion or request is made by an
        aggrieved person pursuant to any other statute
        or rule of the United States or any State before
        any court or other authority of the United
        States or any State to discover or obtain
        applications or orders or other materials
        relating to electronic surveillance or to
        discover, obtain, or suppress evidence or
        information obtained or derived from
        electronic surveillance under this chapter.

50 U.S.C. § 1806(f). From this text and the cross-referenced
subsections, we derive three circumstances in which the in
camera and ex parte procedures are to be used: when (1) a
governmental body gives notice of its intent “to enter into
evidence or otherwise use or disclose in any trial, hearing, or
other proceeding in or before any court, department, officer,
                          FAZAGA V. WALLS                                67

agency, regulatory body, or other authority of the United
States, against an aggrieved person, any information obtained
or derived from an electronic surveillance,” id. § 1806(c)
(emphases added);28 (2) an aggrieved person moves to
suppress the evidence, id. § 1806(e); or (3) an aggrieved
person makes “any motion or request . . . pursuant to any
other statute or rule . . . to discover or obtain applications or
orders or other materials relating to electronic surveillance or
to discover, obtain, or suppress evidence or information
obtained or derived from electronic surveillance under this
chapter,” id. § 1806(f) (emphasis added).

     The case at hand fits within the contemplated
circumstances in two respects. First, although the
Government has declined to confirm or deny in its public
submissions that the information with respect to which it has
invoked the state secrets privilege was obtained or derived
from FISA-covered electronic surveillance of Plaintiffs, see
id. § 1806(c), the complaint alleges that it was. The Attorney
General’s privilege assertion encompassed, among other
things, “any information obtained during the course of”
Operation Flex, the “results of the investigation,” and “any
results derived from” the “sources and methods” used in
Operation Flex. It is precisely because the Government would
like to use this information to defend itself that it has asserted
the state secrets privilege. The district court’s dismissal ruling
was premised in part on the potential use of state secrets


    28
        The text of § 1806(f) refers to notice “pursuant to subsection (c) or
(d) of this section.” 50 U.S.C. § 1806(f) (emphasis added). Section
1806(d) describes verbatim the same procedures as contained in § 1806(c),
except as applied to States and political subdivisions rather than to the
United States. Id. § 1806(d). For convenience, we refer only to § 1806(c)
in this opinion, but our analysis applies to § 1806(d) with equal force.
68                    FAZAGA V. WALLS

material to defend the case. Because the district court made
the ruling after reviewing the surveillance materials, it is
aware whether the allegations in the complaint concerning
electronic surveillance are factually supported. Of course, if
they are not, then the district court can decide on remand that
the FISA procedures are inapplicable. For purposes of this
opinion, we proceed on the premise that the Attorney
General’s invocation of the state secrets privilege relied on
the potential use of material obtained or derived from
electronic surveillance, as alleged in the complaint.

    Second, in their prayer for relief, Plaintiffs have requested
injunctive relief “ordering Defendants to destroy or return any
information gathered through the unlawful surveillance
program by Monteilh and/or Operation Flex described above,
and any information derived from that unlawfully obtained
information.” Plaintiffs thus have requested, in the
alternative, to “obtain” information gathered during or
derived from electronic surveillance. See id. § 1806(f).

    The Government disputes that FISA applies to this case.
Its broader contention is that § 1806(f)’s procedures do not
apply to any affirmative claims challenging the legality of
electronic surveillance or the use of information derived from
electronic surveillance, whether brought under FISA’s private
right of action or any other constitutional provision, statute,
or rule. Instead, the Government maintains, FISA’s
procedures apply only when the government initiates the legal
action, while the state secrets privilege applies when the
government defends affirmative litigation brought by private
parties.

    The plain text and statutory structure of FISA provide
otherwise. To begin, the language of the statute simply does
                            FAZAGA V. WALLS                            69

not contain the limitations the Government suggests. As
discussed above, § 1806(f)’s procedures are to be used in any
one of three situations, each of which is separated in the
statute by an “or.” See id. The first situation—when “the
Government intends to enter into evidence or otherwise use
or disclose information obtained or derived from an
electronic surveillance . . . against an aggrieved person” in
“any trial, hearing, or other proceeding,” id. § 1806(c)
(emphasis added)—unambiguously encompasses affirmative
as well as defensive challenges to the lawfulness of
surveillance.29 The conduct governed by the statutory
provision is the Government’s intended entry into evidence
or other use or disclosure of information obtained or derived
from electronic surveillance. “[A]gainst an aggrieved person”
refers to and modifies the phrase “any information obtained


    29
         In full, § 1806(c) reads:

           Whenever the Government intends to enter into
           evidence or otherwise use or disclose in any trial,
           hearing, or other proceeding in or before any court,
           department, officer, agency, regulatory body, or other
           authority of the United States, against an aggrieved
           person, any information obtained or derived from an
           electronic surveillance of that aggrieved person
           pursuant to the authority of this subchapter, the
           Government shall, prior to the trial, hearing, or other
           proceeding or at a reasonable time prior to an effort to
           so disclose or so use that information or submit it in
           evidence, notify the aggrieved person and the court or
           other authority in which the information is to be
           disclosed or used that the Government intends to so
           disclose or so use such information.

50 U.S.C. § 1806(c). Again, we refer to the text of § 1806(c) because
§ 1806(f)’s procedures apply “[w]henever a court or other authority is
notified pursuant to subsection (c) or (d) of this section.” Id. § 1806(f).
70                    FAZAGA V. WALLS

or derived.” Id. As a matter of ordinary usage, the phrase
“against an aggrieved person” cannot modify “any trial,
hearing, or other proceeding in or before any court,
department, officer, agency, regulatory body, or other
authority of the United States.” Id. Evidence—such as “any
information obtained or derived from an electronic
surveillance”—can properly be said to be “against” a party.
See, e.g., U.S. Const. amend. V (“No person . . . shall be
compelled in any criminal case to be a witness against
himself . . . .”); Miranda v. Arizona, 384 U.S. 436, 460 (1966)
(“[O]ur accusatory system of criminal justice demands that
the government seeking to punish an individual produce the
evidence against him by its own independent labors, rather
than by the cruel, simple expedient of compelling it from his
own mouth.” (emphasis added)). But a “trial, hearing, or
other proceeding” is not for or against either party; such a
proceeding is just an opportunity to introduce evidence. Also,
as the phrase is set off by commas, “against an aggrieved
person” is grammatically a separate modifier from the list of
proceedings contained in § 1806(f). Were the phrase meant to
modify the various proceedings, there would be no
intervening comma setting it apart.

      The third situation—when a “motion or request is made
by an aggrieved person pursuant to any other statute or rule
. . . before any court . . . to discover or obtain applications or
orders or other materials relating to electronic surveillance or
to discover, obtain, or suppress evidence or information
obtained or derived from electronic surveillance under this
chapter,” id. § 1806(f)—also by its plain text encompasses
affirmative challenges to the legality of electronic
surveillance. When an aggrieved person makes such a motion
or request, or the government notifies the aggrieved person
and the court that it intends to use or disclose information
                      FAZAGA V. WALLS                         71

obtained or derived from electronic surveillance, the statute
requires a court to use § 1806(f)’s procedures “to determine
whether the surveillance . . . was lawfully authorized and
conducted.” Id. In other words, a court must “determine
whether the surveillance was authorized and conducted in a
manner which did not violate any constitutional or statutory
right.” S. Rep. No. 95-604, pt. 1, at 57; accord S. Rep. No.
95-701, at 63.

    The inference drawn from the text of § 1806 is bolstered
by § 1810, which specifically creates a private right of action
for an individual subjected to electronic surveillance in
violation of FISA. FISA prohibits, for example, electronic
surveillance of a U.S. person “solely upon the basis of
activities protected by the first amendment to the Constitution
of the United States.” 50 U.S.C. § 1805(a)(2)(A). Here,
Plaintiffs allege they were surveilled solely on account of
their religion. If true, such surveillance was necessarily
unauthorized by FISA, and § 1810 subjects any persons who
intentionally engaged in such surveillance to civil liability. It
would make no sense for Congress to pass a comprehensive
law concerning foreign intelligence surveillance, expressly
enable aggrieved persons to sue for damages when that
surveillance is unauthorized, see id. § 1810, and provide
procedures deemed adequate for the review of national
security-related evidence, see id. § 1806(f), but not intend for
those very procedures to be used when an aggrieved person
sues for damages under FISA’s civil enforcement mechanism.
Permitting a § 1810 claim to be dismissed on the basis of the
state secrets privilege because the § 1806(f) procedures are
unavailable would dramatically undercut the utility of § 1810
in deterring FISA violations. Such a dismissal also would
undermine the overarching goal of FISA more
broadly—“curb[ing] the practice by which the Executive
72                       FAZAGA V. WALLS

Branch may conduct warrantless electronic surveillance on its
own unilateral determination that national security justifies
it.” S. Rep. No. 95-604, pt. 1, at 8.

    FISA’s legislative history confirms that § 1806(f)’s
procedures were designed to apply in both civil and criminal
cases, and to both affirmative and defensive use of electronic
surveillance evidence. The Senate bill initially provided a
single procedure for criminal and civil cases, while the House
bill at the outset specified two separate procedures for
determining the legality of electronic surveillance.30 In the
end, the conference committee adopted a slightly modified
version of the Senate bill, agreeing “that an in camera and ex
parte proceeding is appropriate for determining the
lawfulness of electronic surveillance in both criminal and
civil cases.” H.R. Rep. No. 95-1720, at 32.

     In the alternative, the Government suggests that
§ 1806(f)’s procedures for the use of electronic surveillance
in litigation are limited to affirmative actions brought directly
under § 1810. We disagree. The § 1806(f) procedures are
expressly available, as well as mandatory, for affirmative
claims brought “by an aggrieved person pursuant to any . . .


     30
       Under the House bill, in criminal cases there would be an in camera
proceeding, and the court could, but need not, disclose the materials
relating to the surveillance to the aggrieved person “if there were a
reasonable question as to the legality of the suveillance [sic] and if
disclosure would likely promote a more accurate determination of such
legality, or if disclosure would not harm the national security.” H.R. Rep.
No. 95-1720, at 31 (1978) (Conf. Rep.), reprinted in 1978 U.S.C.C.A.N.
4048, 4060. In civil suits, there would be an in camera and ex parte
proceeding before a court of appeals, and the court would disclose to the
aggrieved person the materials relating to the surveillance “only if
necessary to afford due process to the aggrieved person.” Id. at 32.
                       FAZAGA V. WALLS                           73

statute or rule of the United States . . . before any court . . . of
the United States.” 50 U.S.C. § 1806(f) (emphasis added).
This provision was meant “to make very clear that these
procedures apply whatever the underlying rule or statute” at
issue, so as “to prevent these carefully drawn procedures from
being bypassed by the inventive litigant using a new statute,
rule or judicial construction.” H.R. Rep. No. 95-1283, pt. 1,
at 91 (emphasis added).

    Had Congress wanted to limit the use of § 1806(f)’s
procedures only to affirmative claims alleging lack of
compliance with FISA itself, it could have so specified, as it
did in § 1809 and § 1810. Section 1810 creates a private right
of action only for violations of § 1809. 50 U.S.C. § 1810.
Section 1809 prohibits surveillance not authorized by FISA,
the Wiretap Act, the Stored Communications Act, and the pen
register statute. Id. § 1809(a). That § 1809 includes only
certain, cross-referenced statutes while § 1810 is limited to
violations of § 1809 contrasts with the broad language of
§ 1806(f) as to the types of litigation covered—litigation
“pursuant to any . . . statute or rule of the United States.” Id.
§ 1806(f) (emphasis added).

    Furthermore, if—as here—an aggrieved person brings a
claim under § 1810 and a claim under another statute or the
Constitution based on the same electronic surveillance as is
involved in the § 1810 claim, it would make little sense for
§ 1806(f) to require the court to consider in camera and ex
parte the evidence relating to electronic surveillance for
purposes of the claim under § 1810 of FISA but not permit
the court to consider the exact same evidence in the exact
same way for purposes of the non-FISA claim. Once the
information has been considered by a federal judge in camera
and ex parte, any risk of disclosure—which Congress
74                   FAZAGA V. WALLS

necessarily considered exceedingly small or it would not have
permitted such examination—has already been incurred.
There would be no point in dismissing other claims because
of that same concern.

   We are not the first to hold that § 1806(f)’s procedures
may be used to adjudicate claims beyond those arising under
§ 1810. The D.C. Circuit expressly so held in ACLU
Foundation of Southern California v. Barr, 952 F.2d 457
(D.C. Cir. 1991):

       When a district court conducts a § 1806(f)
       review, its task is not simply to decide
       whether the surveillance complied with FISA.
       Section 1806(f) requires the court to decide
       whether the surveillance was “lawfully
       authorized and conducted.” The Constitution
       is law. Once the Attorney General invokes
       § 1806(f), the respondents named in that
       proceeding therefore must present not only
       their statutory but also their constitutional
       claims for decision.

Id. at 465; accord United States v. Johnson, 952 F.2d 565,
571–73, 571 n.4 (1st Cir. 1991) (using § 1806(f)’s in camera
and ex parte procedures to review constitutional challenges
to FISA surveillance).

    In sum, the plain language, statutory structure, and
legislative history demonstrate that Congress intended FISA
to displace the state secrets privilege and its dismissal remedy
with respect to electronic surveillance. Contrary to the
Government’s contention, FISA’s § 1806(f) procedures are to
be used when an aggrieved person affirmatively challenges,
                          FAZAGA V. WALLS                               75

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.31


    31
      The Agent Defendants suggest that using the § 1806 procedures
would violate their Seventh Amendment jury trial right and their due
process rights.

     Any Seventh Amendment argument is premature. Any hypothetical
interference with a jury trial would arise only if a series of contingencies
occurred on remand. First, given our various rulings precluding certain of
Plaintiffs’ claims and the narrow availability of Bivens remedies under
current law, there are likely to be few, if any, remaining Bivens claims
against the Agent Defendants. See infra Part I; supra Part III.B; supra Part
IV.B. Second, as to any remaining claims against the Agent Defendants,
the district court might determine that there was no unlawful surveillance
after reviewing the evidence under the in camera, ex parte procedures, or
the Agent Defendants may prevail on summary judgment. Moreover, it is
possible that the district court’s determination of whether the surveillance
was lawful will be a strictly legal decision—analogous to summary
judgment—made on the record supplied by the government. See Parklane
Hosiery Co. v. Shore, 439 U.S. 322, 336 (1979) (noting that procedural
devices like summary judgment are not “inconsistent” with the Seventh
Amendment).

     Should the various contingencies occur and leave liability issues to be
determined, the Agent Defendants are free at that time to raise their
Seventh Amendment arguments on remand. But, as the Seventh
Amendment issue was not decided by the district court, may never arise,
and, if it does, may depend on the merits on exactly how it arises, we
decline to address the hypothetical constitutional question now.

    With respect to the Agent Defendants’ due process arguments, we and
other courts have upheld the constitutionality of FISA’s in camera and ex
parte procedures with regard to criminal defendants. See United States v.
Abu-Jihaad, 630 F.3d 102, 117–29 (2d Cir. 2010); United States v.
Damrah, 412 F.3d 618, 625 (6th Cir. 2005); United States v. Ott, 827 F.2d
473, 476–77, 477 n.5 (9th Cir. 1987); United States v. Belfield, 692 F.2d
141, 148–49 (D.C. Cir. 1982); United States v. Nicholson, 955 F. Supp.
76                        FAZAGA V. WALLS

     E. Aggrieved Persons

    We now consider more specifically whether FISA’s
§ 1806(f) procedures may be used in this case. Because the
procedures apply when evidence will be introduced “against
an aggrieved person,” 50 U.S.C. § 1806(c), and when “any
motion or request is made by an aggrieved person,” id.
§ 1806(f), Plaintiffs must satisfy the definition of an
“aggrieved person,” see id. § 1801(k).

     We addressed the “aggrieved person” requirement in part
in the discussion of Plaintiffs’ § 1810 claim against the Agent
Defendants. As we there explained, because Fazaga had a
reasonable expectation of privacy in his office, and
AbdelRahim had a reasonable expectation of privacy in his
home, car, and phone, Plaintiffs are properly considered
aggrieved persons as to those categories of surveillance. See
supra Part I.C. And although we noted that the Agent
Defendants are entitled to qualified immunity on Plaintiffs’
FISA § 1810 claim with respect to the recording of
conversation in the mosque prayer halls, Plaintiffs had a
reasonable expectation of privacy in those conversations and
thus are still properly considered aggrieved persons as to that
category of surveillance as well. See supra Part I.B.

    Again, because Plaintiffs are properly considered
“aggrieved” for purposes of FISA, two of the situations
referenced in § 1806(f) are directly applicable here. The
Government intends to use “information obtained or derived
from an electronic surveillance” against Plaintiffs, who are


588, 590–92, 590 n.3 (E.D. Va. 1997) (collecting cases). Individual
defendants in a civil suit are not entitled to more stringent protections than
criminal defendants.
                      FAZAGA V. WALLS                      77

“aggrieved person[s].” 50 U.S.C. § 1806(c). And Plaintiffs
are “aggrieved person[s]” who have attempted “to discover or
obtain applications or orders or other materials relating to
electronic surveillance.” Id. § 1806(f).

                  *       *       *      *

    We next turn to considering whether the claims other than
the FISA § 1810 claim must be dismissed for reasons
independent of the state secrets privilege, limiting ourselves
to the arguments for dismissal raised in Defendants’ motions
to dismiss.

III.     Search Claims

    In this part, we discuss (1) the Fourth Amendment
injunctive relief claim against the official-capacity
defendants; and (2) the Fourth Amendment Bivens claim
against the Agent Defendants.

       A. Fourth Amendment Injunctive Relief Claim
          Against the Official-Capacity Defendants

    The Government’s primary argument for dismissal of the
constitutional claims brought against the official-capacity
defendants, including the Fourth Amendment claim, is that
the injunctive relief sought—the expungement of all records
unconstitutionally obtained and maintained—is unavailable
under the Constitution. Not so.

    We have repeatedly and consistently recognized that
federal courts can order expungement of records, criminal
78                        FAZAGA V. WALLS

and otherwise, to vindicate constitutional rights.32 The
Privacy Act, 5 U.S.C. § 552a, which (1) establishes a set of
practices governing the collection, maintenance, use, and
dissemination of information about individuals maintained in
records systems by federal agencies, and (2) creates federal
claims for relief for violations of the Act’s substantive
provisions, does not displace the availability of expungement
relief under the Constitution.33 Previous cases involving


     32
          See, e.g., United States v. Sumner, 226 F.3d 1005, 1012 (9th Cir.
2000) (“A district court has the power to expunge a criminal record under
. . . the Constitution itself.”); Burnsworth v. Gunderson, 179 F.3d 771, 775
(9th Cir. 1999) (holding that expungement of an escape conviction from
prison records was an appropriate remedy for a due process violation);
Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1275 (9th
Cir. 1998) (explaining that expungement of unconstitutionally obtained
medical records “would be an appropriate remedy for the alleged
violation”); United States v. Smith, 940 F.2d 395, 396 (9th Cir. 1991) (per
curiam) (explaining that “recognized circumstances supporting
expunction” include an unlawful or invalid arrest or conviction and
government misconduct); Fendler v. U.S. Parole Comm’n, 774 F.2d 975,
979 (9th Cir. 1985) (“Federal courts have the equitable power ‘to order the
expungement of Government records where necessary to vindicate rights
secured by the Constitution or by statute.’” (quoting Chastain v. Kelley,
510 F.2d 1232, 1235 (D.C. Cir. 1975))); Maurer v. Pitchess, 691 F.2d 434,
437 (9th Cir. 1982) (“It is well settled that the federal courts have inherent
equitable power to order ‘the expungement of local arrest records as an
appropriate remedy in the wake of police action in violation of
constitutional rights.’” (quoting Sullivan v. Murphy, 478 F.2d 938, 968
(D.C. Cir. 1973))); Shipp v. Todd, 568 F.2d 133, 134 (9th Cir. 1978) (“It
is established that the federal courts have inherent power to expunge
criminal records when necessary to preserve basic legal rights.” (quoting
United States v. McMains, 540 F.2d 387, 389 (8th Cir. 1976))).
     33
       The cases cited by the Government to the contrary are inapposite.
See City of Milwaukee, 451 U.S. at 314–16 (addressing the congressional
displacement of federal common law through legislation, not the
elimination of injunctive remedies available under the Constitution); Bush
                         FAZAGA V. WALLS                               79

claims brought under both the Privacy Act and the
Constitution did not treat the Privacy Act as displacing a
constitutional claim, but instead analyzed the claims
separately.34 And the circuits that have directly considered
whether the Privacy Act displaces parallel constitutional
remedies have all concluded that a plaintiff may pursue a
remedy under both the Constitution and the Privacy Act.35

    In addition to its Privacy Act displacement theory, the
Government contends that even if expungement relief is
otherwise available under the Constitution, it is not available



v. Lucas, 462 U.S. 367, 386–88 (1983) (discussing preclusion of a Bivens
claim for damages where Congress had already designed a comprehensive
remedial scheme, not whether a statute can displace a recognized
constitutional claim for injunctive relief); Ctr. for Nat’l Sec. Studies v.
U.S. Dep’t of Justice, 331 F.3d 918, 936–37 (D.C. Cir. 2003) (discussing
the displacement of a common law right of access to public records by the
Freedom of Information Act in a case not involving the Privacy Act or a
claim for injunctive relief from an alleged ongoing constitutional
violation).
    34
      See Hewitt v. Grabicki, 794 F.2d 1373, 1377, 1380 (9th Cir. 1986)
(addressing separately a claim for damages under the Privacy Act and a
procedural due process claim); Fendler, 774 F.2d at 979 (considering a
prisoner’s Privacy Act claims and then, separately, his claim for
expungement relief under the Constitution).
     35
        See Abdelfattah v. U.S. Dep’t of Homeland Sec., 787 F.3d 524, 534
(D.C. Cir. 2015) (“We have repeatedly recognized a plaintiff may request
expungement of agency records for both violations of the Privacy Act and
the Constitution.”); Clarkson v. IRS, 678 F.2d 1368, 1376 n.13 (11th Cir.
1982) (“[W]e of course do not intend to suggest that the enactment of the
Privacy Act in any way precludes a plaintiff from asserting a
constitutional claim for violation of his privacy or First Amendment
rights. Indeed, several courts have recognized that a plaintiff is free to
assert both Privacy Act and constitutional claims.”).
80                   FAZAGA V. WALLS

here, as Plaintiffs “advance no plausible claim of an ongoing
constitutional violation.” Again, we disagree.

    This court has been clear that a determination that records
were obtained and retained in violation of the Constitution
supports a claim for expungement relief of existing records so
obtained. As Norman-Bloodsaw explained:

       Even if the continued storage, against
       plaintiffs’ wishes, of intimate medical
       information that was allegedly taken from
       them by unconstitutional means does not itself
       constitute a violation of law, it is clearly an
       ongoing “effect” of the allegedly
       unconstitutional and discriminatory testing,
       and expungement of the test results would be
       an appropriate remedy for the alleged
       violation. . . . At the very least, the retention
       of undisputedly intimate medical information
       obtained in an unconstitutional and
       discriminatory manner would constitute a
       continuing “irreparable injury” for purposes
       of equitable relief.

135 F.3d at 1275; see also Wilson v. Webster, 467 F.2d 1282,
1283–84 (9th Cir. 1972) (holding that plaintiffs had a right to
show that records of unlawful arrests “should be expunged,
for their continued existence may seriously and unjustifiably
serve to impair fundamental rights of the persons to whom
they relate”).
                         FAZAGA V. WALLS                             81

     In short, expungement relief is available under the
Constitution to remedy the alleged constitutional violations.36
Because the Government raises no other argument for
dismissal of the Fourth Amendment injunctive relief claim,
it should not have been dismissed.

    B. Fourth Amendment Bivens Claim Against the
       Agent Defendants

    Alleging that the Agent Defendants violated the Fourth
Amendment, Plaintiffs seek monetary damages directly under
the Constitution under Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In
Bivens, the Supreme Court “recognized for the first time an
implied private action for damages against federal officers
alleged to have violated a citizen’s constitutional rights.”
Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). “The
purpose of Bivens is to deter individual federal officers from
committing constitutional violations.” Id. at 70.

    Bivens itself concerned a Fourth Amendment violation by
federal officers. As we have recognized, a Fourth
Amendment damages claim premised on unauthorized
electronic surveillance by FBI agents and their surrogates
“fall[s] directly within the coverage of Bivens.” Gibson v.
United States, 781 F.2d 1334, 1341 (9th Cir. 1986); see also
Mitchell v. Forsyth, 472 U.S. 511, 513 (1985) (considering,
under Bivens, an alleged “warrantless wiretap” conducted in
violation of the Fourth Amendment). Recent cases, however,
have severely restricted the availability of Bivens actions for



    36
       We do not at this stage, of course, address whether Plaintiffs are
actually entitled to such a remedy.
82                       FAZAGA V. WALLS

new claims and contexts. See Ziglar v. Abbasi, 137 S.Ct.
1843, 1856–57 (2017).37

    Here, the substance of Plaintiffs’ Fourth Amendment
Bivens claim is identical to the allegations raised in their
FISA § 1810 claim. Under our rulings regarding the reach of
the § 1806(f) procedures, almost all of the search-and-seizure
allegations will be subject to those procedures. Thus,
regardless of whether a Bivens remedy is available, Plaintiffs’
underlying claim—that the Agent Defendants engaged in
unlawful electronic surveillance violative of the Fourth
Amendment—would proceed in the same way.

    Moreover, if the Fourth Amendment Bivens claim
proceeds, the Agent Defendants are entitled to qualified
immunity on Plaintiffs’ Fourth Amendment Bivens claim to
the same extent they are entitled to qualified immunity on
Plaintiffs’ FISA claim. In both instances, the substantive law
derives from the Fourth Amendment, and in both instances,
government officials in their individual capacity are subject
to liability for damages only if they violated a clearly
established right to freedom from governmental intrusion
where an individual has a reasonable expectation of privacy.
See supra Part I.B. Under our earlier rulings, the FISA
search-and-seizure allegations may proceed against only two
of the Agent Defendants, and only with respect to a narrow
aspect of the alleged surveillance.

    In light of the overlap between the Bivens claim and the
narrow range of the remaining FISA claim against the Agent
Defendants that can proceed, it is far from clear that Plaintiffs

    37
       The parties have not briefed before us the impact of Abbasi on the
Bivens claims.
                         FAZAGA V. WALLS                             83

will continue to press this claim. We therefore decline to
address whether Plaintiffs’ Bivens claim remains available
after the Supreme Court’s decision in Abbasi. On remand, the
district court may determine—if necessary—whether a Bivens
remedy is appropriate for any Fourth Amendment claim
against the Agent Defendants.

IV.        Religion Claims

    The other set of Plaintiffs’ claims arise from their
allegation that they were targeted for surveillance solely
because of their religion.38 In this part, we discuss Plaintiffs’
(1) First and Fifth Amendment injunctive relief claims
against the official-capacity defendants; (2) First and Fifth
Amendment Bivens claims against the Agent Defendants;
(3) § 1985(3) claims for violations of the Free Exercise
Clause, Establishment Clause, and equal protection
guarantee; (4) RFRA claim; (5) Privacy Act claim; and
(6) FTCA claims. Our focus throughout is whether there are
grounds for dismissal independent of the Government’s
invocation of the state secrets privilege.

      A. First Amendment and Fifth Amendment
         Injunctive Relief Claims Against the Official-
         Capacity Defendants

    Plaintiffs maintain that it violates the First Amendment’s
Religion Clauses and the equal protection component of the
Fifth Amendment for the Government to target them for
surveillance because of their adherence to and practice of


      38
      The operative complaint alleges as a factual matter that Plaintiffs
were surveilled solely because of their religion. We limit our legal
discussion to the facts there alleged.
84                   FAZAGA V. WALLS

Islam. The Government does not challenge the First and Fifth
Amendment claims substantively. It argues only that
injunctive relief is unavailable and that litigating the claims
is not possible without risking the disclosure of state secrets.
We have already concluded that injunctive relief, including
expungement, is available under the Constitution where there
is a substantively viable challenge to government action, see
supra Part III.A, and that dismissal because of the state
secrets concern was improper because of the availability of
the § 1806(f) procedures, see supra Part II. Accordingly,
considering only the arguments put forward by the
Government, we conclude that the First and Fifth
Amendment claims against the official-capacity defendants
may go forward.

     B. First Amendment and Fifth Amendment Bivens
        Claims Against the Agent Defendants

    Plaintiffs seek monetary damages directly under the First
Amendment’s Establishment and Free Exercise Clauses and
the equal protection component of the Fifth Amendment’s
Due Process Clause, relying on Bivens v. Six Unknown
Named Agents.

    We will not recognize a Bivens claim where there is “‘any
alternative, existing process for protecting’ the plaintiff’s
interests.” W. Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d
1116, 1120 (9th Cir. 2009) (quoting Wilkie v. Robbins,
551 U.S. 537, 550 (2007)). The existence of such an
alternative remedy raises the inference that Congress
“‘expected the Judiciary to stay its Bivens hand’ and ‘refrain
from providing a new and freestanding remedy in damages.’”
Id. (quoting Wilkie, 551 U.S. at 550, 554); see also Abbasi,
137 S. Ct. at 1863; Schweiker v. Chilicky, 487 U.S. 412, 423
                         FAZAGA V. WALLS                              85

(1988). Accordingly, we “refrain[] from creating a judicially
implied remedy even when the available statutory remedies
‘do not provide complete relief’ for a plaintiff that has
suffered a constitutional violation.” W. Radio Servs., 578 F.3d
at 1120 (quoting Malesko, 534 U.S. at 69). As long as “an
avenue for some redress” exists, “bedrock principles of
separation of powers forclose[s] judicial imposition of a new
substantive liability.’” Id. (alteration in original) (quoting
Malesko, 534 U.S. at 69).

    Here, we conclude that the Privacy Act, 5 U.S.C. § 552a,
and the Religious Freedom Restoration Act, 42 U.S.C.
§ 2000bb et seq., taken together, provide an alternative
remedial scheme for some, but not all, of Plaintiffs’ First and
Fifth Amendment Bivens claims. As to the remaining Bivens
claims, we remand to the district court to decide whether a
Bivens remedy is available in light of the Supreme Court’s
decision in Abbasi.

    As to the collection and maintenance of records, Plaintiffs
could have, and indeed did, challenge the FBI’s surveillance
of them under the Privacy Act’s remedial scheme. Again, the
Privacy Act, 5 U.S.C. § 552a, creates a set of rules governing
how such records should be kept by federal agencies. See
supra Part III.A. Under § 552a(e)(7), an “agency that
maintains a system of records shall maintain no record
describing how any individual exercises rights guaranteed by
the First Amendment unless expressly authorized by statute
or by the individual about whom the record is maintained or
unless pertinent to and within the scope of an authorized law
enforcement activity.”39 When an agency fails to comply with

     39
        The term “maintain” is defined to mean “maintain, collect, use, or
disseminate.” 5 U.S.C. § 552a(a)(3).
86                   FAZAGA V. WALLS

§ 552a(e)(7), an individual may bring a civil action against
the agency for damages. Id. § 552a(g)(1)(D), (g)(4). Thus,
§ 552a(e)(7) limits the government’s ability to collect,
maintain, use, or disseminate information on an individual’s
religious activity protected by the First Amendment’s
Religion Clauses.

    We have not addressed the availability of a Bivens action
where the Privacy Act may be applicable. But two other
circuits have, and both held that the Privacy Act supplants
Bivens claims for First and Fifth Amendment violations. See
Wilson v. Libby, 535 F.3d 697, 707–08 (D.C. Cir. 2008)
(holding, in response to claims alleging harm from the
improper disclosure of information subject to the Privacy
Act’s protections, that the Privacy Act is a comprehensive
remedial scheme that precludes an additional Bivens remedy);
Downie v. City of Middleburg Heights, 301 F.3d 688, 696 &
n.7 (6th Cir. 2002) (holding that the Privacy Act displaces
Bivens for claims involving the creation, maintenance, and
dissemination of false records by federal agency employees).
We agree with the analyses in Wilson and Downie.

    Although the Privacy Act provides a remedy only against
the FBI, not the individual federal officers, the lack of relief
against some potential defendants does not disqualify the
Privacy Act as an alternative remedial scheme. Again, a
Bivens remedy may be foreclosed “even when the available
statutory remedies ‘do not provide complete relief’ for a
plaintiff,” as long as “the plaintiff ha[s] an avenue for some
redress.” W. Radio Servs., 578 F.3d at 1120 (alteration in
original) (emphasis added) (quoting Malesko, 534 U.S. at 69).
Thus, to the extent that Plaintiffs’ Bivens claims involve
improper collection and retention of agency records, the
Privacy Act precludes such Bivens claims.
                      FAZAGA V. WALLS                         87

    As to religious discrimination more generally, we
conclude that RFRA precludes some, but not all, of Plaintiffs’
Bivens claims. RFRA provides that absent a “compelling
governmental interest” and narrow tailoring, 42 U.S.C.
§ 2000bb-1(b), the “Government shall not substantially
burden a person’s exercise of religion even if the burden
results from a rule of general applicability.” Id. § 2000bb-
1(a). The statute was enacted “to provide a claim or defense
to persons whose religious exercise is substantially burdened
by government.” Id. § 2000bb(b)(2). It therefore provided
that “[a] person whose religious exercise has been burdened
in violation of this section may assert that violation as a claim
or defense in a judicial proceeding and obtain appropriate
relief against a government.” Id. § 2000bb-1(c). RFRA thus
provides a means for Plaintiffs to seek relief for the alleged
burden of the surveillance itself on their exercise of their
religion.

    RFRA does not, however, provide an alternative remedial
scheme for all of Plaintiffs’ discrimination-based Bivens
claims. RFRA was enacted in response to Employment
Division v. Smith, 494 U.S. 872 (1990), which, in Congress’s
view, “virtually eliminated the requirement that the
government justify burdens on religious exercise imposed by
laws neutral toward religion,” 42 U.S.C. § 2000bb(a)(4).
Accordingly, “to restore the compelling interest test . . . and
to guarantee its application in all cases where free exercise of
religion is substantially burdened,” id. § 2000bb(b)(1), RFRA
directs its focus on “rule[s] of general applicability” that
“substantially burden a person’s exercise of religion,” id.
§ 2000bb-1(a).

   Here, many of Plaintiffs’ allegations relate not to neutral
and generally applicable government action, but to conduct
88                    FAZAGA V. WALLS

motivated by intentional discrimination against Plaintiffs
because of their Muslim faith. Regardless of the magnitude of
the burden imposed, “if the object of a law is to infringe upon
or restrict practices because of their religious motivation, the
law is not neutral” and “is invalid unless it is justified by a
compelling interest and is narrowly tailored to advance that
interest.” Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 533 (1993) (emphasis added). It is the
Free Exercise Clause of the First Amendment—not RFRA—
that imposes this requirement.

    Moreover, by its terms, RFRA applies only to the “free
exercise of religion,” 42 U.S.C. § 2000bb(a)(1); indeed, it
expressly disclaims any effect on “that portion of the First
Amendment prohibiting laws respecting the establishment of
religion,” id. § 2000bb-4. But intentional religious
discrimination is “subject to heightened scrutiny whether [it]
arise[s] under the Free Exercise Clause, the Establishment
Clause, or the Equal Protection Clause.” Colo. Christian
Univ. v. Weaver, 534 F.3d 1245, 1266 (10th Cir. 2008)
(citations omitted). Here, Plaintiffs have raised religion
claims based on all three constitutional provisions. Because
RFRA does not provide an alternative remedial scheme for
protecting these interests, we conclude that RFRA does not
preclude Plaintiffs’ religion-based Bivens claims.

    We conclude that the Privacy Act and RFRA, taken
together, function as an alternative remedial scheme for
protecting some, but not all, of the interests Plaintiffs seek to
vindicate via their First and Fifth Amendment Bivens claims.
The district court never addressed whether a Bivens remedy
is available for any of the religion claims because it dismissed
the claims in their entirety based on the state secrets privilege.
In addition, Abbasi has now clarified the standard for
                     FAZAGA V. WALLS                       89

determining when a Bivens remedy is available for a
particular alleged constitutional violation. And, as we have
explained, the scope of the religion claims to which a Bivens
remedy might apply is considerably narrower than those
alleged, given the partial displacement by the Privacy Act and
RFRA. If asked, the district court should determine on
remand, applying Abbasi, whether a Bivens remedy is
available to the degree the damages remedy is not displaced
by the Privacy Act and RFRA.

   C. 42 U.S.C. § 1985(3) Claims Against the Agent
      Defendants

    Plaintiffs allege that the Agent Defendants conspired to
deprive Plaintiffs of their rights under the First Amendment’s
Establishment and Free Exercise Clauses and the due process
guarantee of the Fifth Amendment, in violation of 42 U.S.C.
§ 1985(3).

   To state a violation of § 1985(3), Plaintiffs must “allege
and prove four elements”:

       (1) a conspiracy; (2) for the purpose of
       depriving, either directly or indirectly, any
       person or class of persons of the equal
       protection of the laws, or of equal privileges
       and immunities under the laws; and (3) an act
       in furtherance of the conspiracy; (4) whereby
       a person is either injured in his person or
       property or deprived of any right or privilege
       of a citizen of the United States.

United Bhd. of Carpenters & Joiners of Am., Local 610 v.
Scott, 463 U.S. 825, 828–29 (1983). The Defendants attack
90                        FAZAGA V. WALLS

these claims on various grounds, but we reach only
one—whether § 1985(3) conspiracies among employees of
the same government entity are barred by the intracorporate
conspiracy doctrine.

    Abbasi makes clear that intracorporate liability was not
clearly established at the time of the events in this case and
that the Agent Defendants are therefore entitled to qualified
immunity from liability under § 1985(3). See 137 S. Ct.
at 1866.

    In Abbasi, men of Arab and South Asian descent detained
in the aftermath of September 11 sued two wardens of the
federal detention center in Brooklyn in which they were held,
along with several high-level Executive Branch officials who
were alleged to have authorized their detention. Id. at 1853.
They alleged, among other claims, a conspiracy among the
defendants to deprive them of the equal protection of the laws
under § 1985(3).40 Id. at 1853–54. Abbasi held that, even
assuming these allegations to be “true and well pleaded,” the
defendants were entitled to qualified immunity on the
§ 1985(3) claim. Id. at 1866–67. It was not “clearly
established” at the time, the Court held, that the
intracorporate conspiracy doctrine did not bar § 1985(3)
liability for employees of the same government department
who conspired among themselves. Id. at 1867–68. “[T]he fact
that the courts are divided as to whether or not a § 1985(3)
conspiracy can arise from official discussions between or
among agents of the same entity demonstrates that the law on
the point is not well established.” Id. at 1868. “[R]easonable


     40
      Specifically, Plaintiffs alleged that these officials “conspired with
one another to hold respondents in harsh conditions because of their actual
or apparent race, religion, or national origin.” Abbasi, 137 S. Ct. at 1854.
                         FAZAGA V. WALLS                              91

officials in petitioners’ positions would not have known, and
could not have predicted, that § 1985(3) prohibited their joint
consultations.” Id. at 1867. The Court declined, however, to
resolve the issue on the merits. Id.

    Abbasi controls. Although the underlying facts here differ
from those in Abbasi, the dispositive issue here, as in Abbasi,
is whether the Agent Defendants could reasonably have
known that agreements entered into or agreed-upon policies
devised with other employees of the FBI could subject them
to conspiracy liability under § 1985(3). At the time Plaintiffs
allege they were surveilled, neither this court nor the Supreme
Court had held that an intracorporate agreement could subject
federal officials to liability under § 1985(3), and the circuits
that had decided the issue were split.41 There was therefore,
as in Abbasi, no clearly established law on the question. As
the Agent Defendants are entitled to qualified immunity on
the § 1985(3) allegations in the complaint, we affirm their
dismissal on that ground.



    41
       Two circuits have held that the intracorporate conspiracy doctrine
does not extend to civil rights cases. See Brever v. Rockwell Int’l Corp.,
40 F.3d 1119, 1127 (10th Cir. 1994); Novotny v. Great Am. Fed. Sav. &
Loan Ass’n, 584 F.2d 1235, 1257–58 (3d Cir. 1978) (en banc), vacated on
other grounds, 442 U.S. 366 (1979); see also Stathos v. Bowden, 728 F.2d
15, 20–21 (1st Cir. 1984) (expressing “doubt” that the intracorporate
conspiracy doctrine extends to conspiracy under § 1985(3)). The majority
of the circuits have reached a contrary result. See Hartline v. Gallo,
546 F.3d 95, 99 n.3 (2d Cir. 2008); Meyers v. Starke, 420 F.3d 738, 742
(8th Cir. 2005); Dickerson v. Alachua Cty. Comm’n, 200 F.3d 761,
767–68 (11th Cir. 2000); Benningfield v. City of Houston, 157 F.3d 369,
378 (5th Cir. 1998); Wright v. Ill. Dep’t of Children & Family Servs.,
40 F.3d 1492, 1508 (7th Cir. 1994); Hull v. Cuyahoga Valley Joint
Vocational Sch. Dist. Bd. of Educ., 926 F.2d 505, 509–10 (6th Cir. 1991);
Buschi v. Kirven, 775 F.2d 1240, 1252–53 (4th Cir. 1985).
92                       FAZAGA V. WALLS

     D. Religious Freedom Restoration Act Claim Against
        the Agent Defendants and Government Defendants

    Plaintiffs allege that the Defendants violated the Religious
Freedom Restoration Act, 42 U.S.C. § 2000bb, by
substantially burdening Plaintiffs’ exercise of religion, and
did so neither in furtherance of a compelling governmental
interest nor by adopting the least restrictive means of
furthering any such interest. The Government Defendants
offer no argument for dismissal of the RFRA claim other than
the state secrets privilege. The Agent Defendants, however,
contend that they are entitled to qualified immunity on the
RFRA claim because Plaintiffs failed to plead a substantial
burden on their religion, and if they did so plead, no clearly
established law supported that conclusion at the relevant
time.42

    To establish a prima facie claim under RFRA, a plaintiff
must “present evidence sufficient to allow a trier of fact
rationally to find the existence of two elements.” Navajo
Nation v. U.S. Forest Serv., 535 F.3d 1058, 1068 (9th Cir.
2008) (en banc). “First, the activities the plaintiff claims are

     42
       The parties do not dispute that qualified immunity is an available
defense to a RFRA claim. We therefore assume it is. See Padilla v. Yoo,
678 F.3d 748, 768 (9th Cir. 2012); Lebron v. Rumsfeld, 670 F.3d 540, 560
(4th Cir. 2012).

     Tidwell and Walls also contend that Plaintiffs’ RFRA claim was
properly dismissed because RFRA does not permit damages suits against
individual-capacity defendants. Because we affirm dismissal on another
ground, we do not reach that issue. We note, however, that at least two
other circuits have held that damages are available for RFRA suits against
individual-capacity defendants. See Tanvir v. Tanzin, 894 F.3d 449, 467
(2d Cir. 2018); Mack v. Warden Loretto FCI, 839 F.3d 286, 302 (3d Cir.
2016).
                      FAZAGA V. WALLS                          93

burdened by the government action must be an ‘exercise of
religion.’” Id. (quoting 42 U.S.C. § 2000bb-1(a)). “Second,
the government action must ‘substantially burden’ the
plaintiff’s exercise of religion.” Id. Once a plaintiff has
established those elements, “the burden of persuasion shifts
to the government to prove that the challenged government
action is in furtherance of a ‘compelling governmental
interest’ and is implemented by ‘the least restrictive means.’”
Id. (quoting 42 U.S.C. § 2000bb-1(b)).

      “Under RFRA, a ‘substantial burden’ is imposed only
when individuals are forced to choose between following the
tenets of their religion and receiving a governmental benefit
. . . or coerced to act contrary to their religious beliefs by the
threat of civil or criminal sanctions . . . .” Id. at 1069–70; see
also Oklevueha Native Am. Church of Haw., Inc. v. Lynch,
828 F.3d 1012, 1016 (9th Cir. 2016). An effect on an
individual’s “subjective, emotional religious experience”
does not constitute a substantial burden, Navajo Nation,
535 F.3d at 1070, nor does “a government action that
decreases the spirituality, the fervor, or the satisfaction with
which a believer practices his religion,” id. at 1063.

    Plaintiffs do allege that they altered their religious
practices as a result of the FBI’s surveillance: Malik trimmed
his beard, stopped regularly wearing a skull cap, decreased
his attendance at the mosque, and became less welcoming to
newcomers than he believes his religion requires.
AbdelRahim “significantly decreased his attendance to
mosque,” limited his donations to mosque institutions, and
became less welcoming to newcomers than he believes his
religion requires. Fazaga, who provided counseling at the
mosque as an imam and an intern therapist, stopped
94                        FAZAGA V. WALLS

counseling congregants at the mosque because he feared the
conversations would be monitored and thus not confidential.

    But it was not clearly established in 2006 or 2007 that
covert surveillance conducted on the basis of religion would
meet the RFRA standards for constituting a substantial
religious burden on individual congregants. There simply was
no case law in 2006 or 2007 that would have put the Agent
Defendants on notice that covert surveillance on the basis of
religion could violate RFRA. And at least two cases from our
circuit could be read to point in the opposite direction, though
they were brought under the First Amendment’s Religion
Clauses rather than under RFRA. See Vernon v. City of Los
Angeles, 27 F.3d 1385, 1394 (9th Cir. 1994); Presbyterian
Church, 870 F.2d at 527.43

    Presbyterian Church concerned an undercover
investigation by INS of the sanctuary movement. 870 F.2d at
520. Over nearly a year, several INS agents infiltrated four
churches in Arizona, attending and secretly recording church
services. Id. The covert surveillance was later publicly
disclosed in the course of criminal proceedings against
individuals involved with the sanctuary movement. Id. The
four churches brought suit, alleging a violation of their right
to free exercise of religion. Id. We held that the individual


      43
         Presbyterian Church predates Employment Division v. Smith, which
declined to use the compelling interest test from Sherbert v. Verner,
374 U.S. 398 (1963). Smith, 494 U.S. at 883–85. The other case, Vernon,
postdates RFRA, which in 1993 restored Sherbert’s compelling interest
test. See 27 F.3d at 1393 n.1; see also 42 U.S.C. § 2000bb(b). Although
the compelling interest balancing test was in flux during this period, the
notion that a burden on religious practice was required to state a claim was
not. RFRA continued the same substantial burden standard as was
required by the constitutional cases. See Vernon, 27 F.3d at 1393.
                     FAZAGA V. WALLS                         95

INS agents named as defendants were entitled to qualified
immunity because there was “no support in the preexisting
case law” to suggest that “it must have been apparent to INS
officials that undercover electronic surveillance of church
services without a warrant and without probable cause
violated the churches’ clearly established rights under the
First . . . Amendment[].” Id. at 527.

    In Vernon, the Los Angeles Police Department (“LAPD”)
investigated Vernon, the Assistant Chief of Police of the
LAPD, in response to allegations that Vernon’s religious
beliefs had interfered with his ability or willingness to fairly
perform his official duties. 27 F.3d at 1389. Vernon filed a
§ 1983 action, maintaining that the preinvestigation activities
and the investigation itself violated the Free Exercise Clause.
Id. at 1390. In his complaint, Vernon alleged that the
investigation “chilled [him] in the exercise of his religious
beliefs, fearing that he can no longer worship as he chooses,
consult with his ministers and the elders of his church,
participate in Christian fellowship and give public testimony
to his faith without severe consequences.” Id. at 1394. We
held that Vernon failed to demonstrate a substantial burden
on his religious observance and so affirmed the district
court’s dismissal of his free exercise claim. Id. at 1395. We
noted that Vernon “failed to show any concrete and
demonstrable injury.” Id. “Vernon complain[ed] that the
existence of a government investigation has discouraged him
from pursuing his personal religious beliefs and practices—in
other words, mere subjective chilling effects with neither ‘a
claim of specific present objective harm [n]or a threat of
specific future harm.’” Id. (quoting Laird v. Tatum, 408 U.S.
1, 14 (1972)).
96                       FAZAGA V. WALLS

    Vernon and Presbyterian Church were decided before the
surveillance Plaintiffs allege substantially burdened their
exercise of religion. Both cases cast doubt upon whether
surveillance such as that alleged here constitutes a substantial
burden upon religious practice. There is no pertinent case law
indicating otherwise. It was therefore not clearly established
in 2006 or 2007 that Defendants’ actions violated Plaintiffs’
freedom of religion, protected by RFRA.44

    As to the Agent Defendants, therefore, we affirm the
dismissal of the RFRA claim. But because the Government
Defendants are not subject to the same qualified immunity
analysis and made no arguments in support of dismissing the
RFRA claim other than the state secrets privilege, we hold
that the complaint substantively states a RFRA claim against
the Government Defendants.45




     44
        These cases may not, however, entitle the Agent Defendants to
qualified immunity as to claims involving intentional discrimination based
on Plaintiffs’ religion. As we noted, see supra Part IV.B, we are not
deciding whether there is an available Bivens action for those claims. As
we decline to anticipate whether Plaintiffs will pursue their Bivens claims
on the religious discrimination issues and, if so, whether the claims will
be allowed to go forward, we leave any surviving qualified immunity issue
for the district court to decide in the first instance.
   45
      We do not address any other defenses the Government Defendants
may raise before the district court in response to Plaintiffs’ RFRA claim.
                         FAZAGA V. WALLS                              97

    E. Privacy Act Claim Against the FBI

    Plaintiffs allege that the FBI violated the Privacy Act,
5 U.S.C. § 552a(e)(7),46 by collecting and maintaining records
describing how Plaintiffs exercised their First Amendment
rights. As a remedy, Plaintiffs seek only injunctive relief
ordering the destruction or return of unlawfully obtained
information. Cell Associates, Inc. v. National Institutes of
Health, 579 F.2d 1155 (9th Cir. 1978), which interpreted the
scope of Privacy Act remedies, precludes such injunctive
relief.

    The “Civil remedies” section of the Privacy Act, 5 U.S.C.
§ 552a(g), lists four types of agency misconduct and the
remedies applicable to each. The statute expressly provides
that injunctive relief is available when an agency improperly
denies a request to amend or disclose an individual’s record,
see 5 U.S.C. § 552a(g)(1)(A), (2)(A), (1)(B), (3)(A), but
provides only for damages when the agency “fails to maintain
any record” with the “accuracy, relevance, timeliness, and
completeness” required for fairness, id. § 552a(g)(1)(C), or if
the agency “fails to comply with any other provision” of
the Privacy Act, id. § 552a(g)(1)(D). See id. § 552a(g)(4).
Cell Associates concluded that this distinction was
purposeful—that is, that Congress intended to limit the
availability of injunctive relief to the categories of agency


    46
       The header to Plaintiffs’ Eighth Cause of Action reads broadly,
“Violation of the Privacy Act, 5 U.S.C. § 552a(a)–(l).” As actually
pleaded and briefed, however, the substance of Plaintiffs’ Privacy Act
claim is limited to § 552a(e)(7). The complaint states that “Defendant FBI
. . . collected and maintained records . . . in violation of 5 U.S.C.
§ 552a(e)(7).” And Plaintiffs’ reply brief states that they “seek
expungement . . . under 5 U.S.C. § 552a(e)(7).”
98                   FAZAGA V. WALLS

misconduct for which injunctive relief was specified as a
remedy:

       The addition of a right to injunctive relief for
       one type of violation, coupled with the failure
       to provide injunctive relief for another type of
       violation, suggests that Congress knew what
       it was about and intended the remedies
       specified in the Act to be exclusive. While the
       right to damages might seem an inadequate
       safeguard against unwarranted disclosures of
       agency records, we think it plain that
       Congress limited injunctive relief to the
       situations described in 5 U.S.C.
       § 552a(g)(1)(A) and (2) and (1)(B) and (3).

579 F.2d at 1161.

    A violation of § 552a(e)(7) falls within the catch-all
remedy provision, applicable if the agency “fails to comply
with any other provision” of the Privacy Act. 5 U.S.C.
§ 552a(g)(1)(D). As the statute does not expressly provide for
injunctive relief for a violation of this catch-all provision,
Cell Associates precludes injunctive relief for a violation of
§ 552a(e)(7).

    Plaintiffs attempt to avoid the precedential impact of Cell
Associates on the ground that it “nowhere mentions Section
552a(e)(7).” That is so, but the holding of Cell Associates
nonetheless applies directly to this case. The Privacy Act
specifies that injunctive relief is available for violations of
some provisions of the Act, but not for a violation of
§ 552a(e)(7). Under Cell Associates, Plaintiffs cannot obtain
                          FAZAGA V. WALLS                                 99

injunctive relief except for violations as to which such relief
is specifically permitted.47

    Plaintiffs’ complaint expressly provides that “[t]he FBI is
sued for injunctive relief only.” Accordingly, because their
sole requested remedy is unavailable, Plaintiffs fail to state a
claim under the Privacy Act.

    F. FTCA Claims

    The FTCA constitutes a waiver of sovereign immunity
“under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the
law of the place where the act or omission occurred.”
28 U.S.C. § 1346(b)(1). “State substantive law applies” in
FTCA actions. Liebsack v. United States, 731 F.3d 850, 856
(9th Cir. 2013). If an individual federal employee is sued, the
United States shall, given certain conditions are satisfied, “be
substituted as the party defendant.” 28 U.S.C. § 2679(d)(1).

    Plaintiffs allege that the United States is liable under the
FTCA for invasion of privacy under California law, violation
of the California constitutional right to privacy, violation of
California Civil Code § 52.1, and intentional infliction of
emotional distress. We first consider Defendants’
jurisdictional arguments, and then discuss their implications
for the substantive FTCA claims.



    47
        Plaintiffs also argue that MacPherson v. IRS, 803 F.2d 479 (9th Cir.
1986) is “binding Ninth Circuit authority . . . [that] makes clear that courts
have authority to order expungement of records maintained in violation of
its [§ 552a(e)(7)] requirements.” But MacPherson does not state whether
the plaintiff there sought injunctive relief and so is unclear on this point.
100                 FAZAGA V. WALLS

       1. FTCA Judgment Bar

    The FTCA’s judgment bar provides that “[t]he judgment
in an action under [the FTCA] shall constitute a complete bar
to any action by the claimant, by reason of the same subject
matter, against the employee of the government whose act or
omission gave rise to the claim.” 28 U.S.C. § 2676. The
judgment bar provision has no application here.

    The judgment bar provision precludes claims against
individual defendants in two circumstances: (1) where a
plaintiff brings an FTCA claim against the government and
non-FTCA claims against individual defendants in the same
action and obtains a judgment against the government, see
Kreines v. United States, 959 F.2d 834, 838 (9th Cir. 1992);
and (2) where the plaintiff brings an FTCA claim against the
government, judgment is entered in favor of either party, and
the plaintiff then brings a subsequent non-FTCA action
against individual defendants, see Gasho v. United States,
39 F.3d 1420, 1437–38 (9th Cir. 1994); Ting v. United States,
927 F.2d 1504, 1513 n.10 (9th Cir. 1991). The purposes of
this judgment bar are “to prevent dual recoveries,” Kreines,
959 F.2d at 838, to “serve[] the interests of judicial
economy,” and to “foster more efficient settlement of
claims,” by “encourag[ing plaintiffs] to pursue their claims
concurrently in the same action, instead of in separate
actions,” Gasho, 39 F.3d at 1438.

    Neither of those two circumstances, nor their attendant
risks, is present here. Plaintiffs brought their FTCA claim,
necessarily, against the United States, and their non-FTCA
claims against the Agent Defendants, in the same action.
They have not obtained a judgment against the government.
Kreines held that “an FTCA judgment in favor of the
                      FAZAGA V. WALLS                       101

government did not bar the Bivens claim [against individual
employees] when the judgments are ‘contemporaneous’ and
part of the same action.” Gasho, 39 F.3d at 1437 (quoting
Kreines, 959 F.2d at 838). By “contemporaneous,” Kreines
did not require that judgments on the FTCA and other claims
be entered simultaneously, but rather that they result from the
same action.

    The FTCA’s judgment bar does not operate to preclude
Plaintiffs’ claims against the Agent Defendants.

        2. FTCA Discretionary Function Exception

    The discretionary function exception provides that the
FTCA shall not apply to “[a]ny claim based upon an act or
omission of an employee of the Government, exercising due
care, in the execution of a statute or regulation, . . . or based
upon the exercise or performance or the failure to exercise or
perform a discretionary function or duty on the part of a
federal agency or an employee of the Government, whether
or not the discretion involved be abused.” 28 U.S.C.
§ 2680(a). “[T]he discretionary function exception will not
apply when a federal statute, regulation, or policy specifically
prescribes a course of action for an employee to follow.”
Berkovitz v. United States, 486 U.S. 531, 536 (1988).
“[G]overnmental conduct cannot be discretionary if it violates
a legal mandate.” Galvin v. Hay, 374 F.3d 739, 758 (9th Cir.
2004) (quoting Nurse v. United States, 226 F.3d 996, 1002
(9th Cir. 2000)). Moreover, “the Constitution can limit the
discretion of federal officials such that the FTCA’s
discretionary function exception will not apply.” Id. (quoting
Nurse, 226 F.3d at 1002 n.2).
102                     FAZAGA V. WALLS

    We cannot determine the applicability of the discretionary
function exception at this stage in the litigation. If, on
remand, the district court determines that Defendants did not
violate any federal constitutional or statutory directives, the
discretionary function exception will bar Plaintiffs’ FTCA
claims.48 But if the district court instead determines that
Defendants did violate a nondiscretionary federal
constitutional or statutory directive, the FTCA claims may be
able to proceed to that degree.

    Because applicability of the discretionary function will
largely turn on the district court’s ultimate resolution of the
merits of Plaintiffs’ various federal constitutional and
statutory claims, discussing whether Plaintiffs substantively
state claims as to the state laws underlying the FTCA claim
would be premature. We therefore decline to do so at this
juncture.

V. Procedures on Remand

    On remand, the FISA and Fourth Amendment claims, to
the extent we have held they are validly pleaded in the
complaint and not subject to qualified immunity, should
proceed as usual. See supra Part II.B. In light of our
conclusion regarding the reach of FISA § 1806(f), the district
court should, using § 1806(f)’s ex parte and in camera
procedures, review any “materials relating to the surveillance
as may be necessary,” 50 U.S.C. § 1806(f), including the
evidence over which the Attorney General asserted the state
secrets privilege, to determine whether the electronic


    48
     We note that the judgment bar, 28 U.S.C. § 2676, does not apply to
FTCA claims dismissed under the discretionary function exception. See
Simmons v. Himmelreich, 136 S. Ct. 1843, 1847–48 (2016).
                          FAZAGA V. WALLS                               103

surveillance was lawfully authorized and conducted. That
determination will include, to the extent we have concluded
that the complaint states a claim regarding each such
provision, whether Defendants violated any of the
constitutional and statutory provisions asserted by Plaintiffs
in their complaint. As permitted by Congress, “[i]n making
this determination, the court may disclose to [plaintiffs],
under appropriate security procedures and protective orders,
portions of the application, order, or other materials relating
to the surveillance only where such disclosure is necessary to
make an accurate determination of the legality of the
surveillance.” Id.49

    The Government suggests that Plaintiffs’ religion claims
cannot be resolved using the § 1806(f) procedures because, as
the district court found, “the central subject matter [of the
case] is Operation Flex, a group of counterterrorism
investigations that extend well beyond the purview of
electronic surveillance.” Although the larger factual context
of the case involves more than electronic surveillance, a
careful review of the “Claims for Relief” section of the
complaint convinces us that all of Plaintiffs’ legal causes of
action relate to electronic surveillance, at least for the most
part, and in nearly all instances entirely, and thus require a
determination as to the lawfulness of the surveillance.
Moreover, § 1806(f) provides that the district court may

    49
        Our circuit has not addressed the applicable standard for reviewing
the district court’s decision not to disclose FISA materials. Other circuits,
however, have adopted an abuse of discretion standard. See United States
v. Ali, 799 F.3d 1008, 1022 (8th Cir. 2015); United States v. El-Mezain,
664 F.3d 467, 567 (5th Cir. 2011); United States v. Damrah, 412 F.3d
618, 624 (6th Cir. 2005); United States v. Badia, 827 F.2d 1458, 1464
(11th Cir. 1987); United States v. Belfield, 692 F.2d 141, 147 (D.C. Cir.
1982).
104                      FAZAGA V. WALLS

consider “other materials relating to the surveillance as may
be necessary to determine whether the surveillance of the
aggrieved person was lawfully authorized and conducted,”
thereby providing for consideration of all parties’ factual
submissions and legal contentions regarding the background
of the surveillance. Id. (emphasis added).

     We did explain in Part I, supra, that not all of the
surveillance detailed in the complaint as the basis for
Plaintiffs’ legal claims constitutes electronic surveillance as
defined by FISA. See id. § 1801(k). Also, two of Plaintiffs’
causes of action can be read to encompass more conduct than
just electronic surveillance. Plaintiffs’ RFRA claim, their
Fifth Cause of Action, is not limited to electronic
surveillance. Plaintiffs broadly allege that “[t]he actions of
Defendants substantially burdened [their] exercise of
religion.” The FTCA claim for intentional infliction of
emotional distress, the Eleventh Cause of Action, is also more
broadly pleaded. It is far from clear, however, that as actually
litigated, either claim will involve more than the electronic
surveillance that is otherwise the focus of the lawsuit. 50

    At this stage, it appears that, once the district court uses
§ 1806(f)’s procedures to review the state secrets evidence in
camera and ex parte to determine the lawfulness of that
surveillance, it could rely on its assessment of the same
evidence—taking care to avoid its public disclosure—to


    50
        For example, whether the official-capacity defendants targeted
Plaintiffs for surveillance in violation of the First Amendment will in all
likelihood be proven or defended against using the same set of evidence
regardless of whether the court considers the claim in terms of electronic
surveillance in the mosque prayer hall or conversations to which Monteilh
was a party.
                           FAZAGA V. WALLS                                105

determine the lawfulness of the surveillance falling outside
FISA’s purview, should Plaintiffs wish to proceed with their
claims as applied to that set of activity. Once the sensitive
information has been considered in camera and ex parte, the
small risk of disclosure—a risk Congress thought too small
to preclude careful ex parte, in camera consideration by a
federal judge—has already been incurred. The scope of the
state secrets privilege “is limited by its underlying purpose.”
Halpern v. United States, 258 F.2d 36, 44 (2d Cir. 1958)
(quoting Roviaro v. United States, 353 U.S. 53, 60 (1957)). It
would stretch the privilege beyond its purpose to require the
district court to consider the state secrets evidence in camera
and ex parte for one claim, but then, when considering
another claim, ignore the evidence and dismiss the claim even
though it involves the exact same set of parties, facts, and
alleged legal violations.

    Should our prediction of the overlap between the
information to be reviewed under the FISA procedures to
determine the validity of FISA-covered electronic
surveillance and the information pertinent to other aspects of
the religion claims prove inaccurate, or should the FISA-
covered electronic surveillance drop out of consideration,51
the Government is free to interpose a specifically tailored,
properly raised state secrets privilege defense. Should the
Government do so, at that point the district court should
consider anew whether “simply excluding or otherwise
walling off the privileged information may suffice to protect
the state secrets,” Jeppesen, 614 F.3d at 1082, or whether
dismissal is required because “the privilege deprives the
defendant[s] of information that would otherwise give the

     51
        As could happen if, for instance, Plaintiffs are unable to substantiate
their factual allegations as to the occurrence of the surveillance.
106                  FAZAGA V. WALLS

defendant[s] a valid defense to the claim[s],” id. at 1083
(quoting Kasza, 133 F.3d at 1166), or because the privileged
and nonprivileged evidence are “inseparable” such that
“litigating the case to a judgment on the merits would present
an unacceptable risk of disclosing state secrets,” id.

    Because Jeppesen did not define “valid defense,” we
briefly address its meaning, so as to provide guidance to the
district court on remand and to future courts in our circuit
addressing the implications of the Government’s invocation
of the state secrets privilege.

    The most useful discussion of the meaning of “valid
defense” in the state secrets context is in the D.C. Circuit’s
decision in In re Sealed Case, 494 F.3d 139, cited by
Jeppensen, 614 F.3d at 1083. We find the D.C. Circuit’s
definition and reasoning persuasive, and so adopt it.
Critically, In re Sealed Case explained that “[a] ‘valid
defense’ . . . is meritorious and not merely plausible and
would require judgment for the defendant.” 494 F.3d at 149.
The state secrets privilege does not require “dismissal of a
complaint for any plausible or colorable defense.” Id. at 150.
Otherwise, “virtually every case in which the United States
successfully invokes the state secrets privilege would need to
be dismissed.” Id. Such an approach would constitute judicial
abdication from the responsibility to decide cases on the basis
of evidence “in favor of a system of conjecture.” Id. And the
Supreme Court has cautioned against “precluding review of
constitutional claims” and “broadly interpreting evidentiary
privileges.” Id. at 151 (first citing Webster v. Doe, 486 U.S.
592, 603–04 (1988), and then citing United States v. Nixon,
418 U.S. 683, 710 (1974)). “[A]llowing the mere prospect of
a privilege defense,” without more, “to thwart a citizen’s
efforts to vindicate his or her constitutional rights would run
                     FAZAGA V. WALLS                       107

afoul” of those cautions. Id. Thus, where the government
contends that dismissal is required because the state secrets
privilege inhibits it from presenting a valid defense, the
district court may properly dismiss the complaint only if it
conducts an “appropriately tailored in camera review of the
privileged record,” id., and determines that defendants have
a legally meritorious defense that prevents recovery by the
plaintiffs, id. at 149 & n.4.

                      CONCLUSION

    The legal questions presented in this case have been many
and difficult. We answer them on purely legal grounds, but of
course realize that those legal answers will reverberate in the
context of the larger ongoing national conversation about how
reasonably to understand and respond to the threats posed by
terrorism without fueling a climate of fear rooted in
stereotypes and discrimination. In a previous case, we
observed that the state secrets doctrine strikes a “difficult
balance . . . between fundamental principles of our liberty,
including justice, transparency, accountability and national
security,” and sometimes requires us to confront “an
irreconcilable conflict” between those principles. Jeppesen,
614 F.3d at 1073. In holding, for the reasons stated, that the
Government’s assertion of the state secrets privilege does not
warrant dismissal of this litigation in its entirety, we, too,
have recognized the need for balance, but also have heeded
the conclusion at the heart of Congress’s enactment of FISA:
the fundamental principles of liberty include devising means
of forwarding accountability while assuring national security.

   Having carefully considered the Defendants’ various
arguments for dismissal other than the state secrets privilege,
we conclude that some of Plaintiffs’ search and religion
108                  FAZAGA V. WALLS

allegations state a claim, while others do not. We therefore
affirm in part and reverse in part the district court’s orders,
and remand for further proceedings in accordance with this
opinion.

  AFFIRMED in part, REVERSED in part, and
REMANDED.



GOULD and BERZON, Circuit Judges, joined       by
WARDLAW, FLETCHER, and PAEZ, Circuit Judges,
concurring in the denial of rehearing en banc:

    Judge Bumatay’s dissent from the denial of rehearing (the
“dissent”) is a veritable Russian doll of nestled mistakes and
misleading statements—open one, and another stares back at
you. The panel opinion itself belies most of the accusations.
For brevity, we pay particular attention here to the dissent’s
most fundamental misperceptions of the panel’s holdings.

                               I

    At the core of this case lies a series of interwoven
statutory interpretation issues surrounding the application of
the Foreign Intelligence Surveillance Act (“FISA”), 50
U.S.C. §§ 1801 et seq, in a civil action. The panel opinion
concluded that a provision of that statute, 50 U.S.C.
§ 1806(f), supersedes the common law state secrets
evidentiary privilege’s limited dismissal remedy—not the
protection of state secrets from disclosure—with regard to
evidence or information related to electronic surveillance, and
that the secrecy-protective procedures established by
50 U.S.C. § 1806(f), designed precisely for matters
                      FAZAGA V. WALLS                        109

implicating national security concerns, apply to the plaintiffs’
claims in this case against the government.

    In concluding that § 1806(f)’s procedures apply, the panel
opinion decidedly did not, as the dissent asserts, second guess
the Executive’s capacity to determine that certain evidence
related to electronic surveillance is classified or touches on
issues of national security, and therefore deserves protection
from disclosure to litigants or the public. See Mohamed v.
Jeppesen Dataplan, Inc., 614 F.3d 1070, 1081–82 (9th Cir.
2010) (en banc). Instead, the panel opinion resolved the
discrete issue of what should happen in a civil case that
involves such information: Need the case be dismissed, as it
sometimes is to implement the common law state secrets
privilege, or can it go forward but without disclosure of the
information to the plaintiffs, under specially tailored litigation
procedures that would in other contexts be impermissible as
violative of the plaintiffs’ rights as litigants?

    Critically for present purposes, the classified material at
issue is protected from disclosure under § 1806(f), just as it
is under the state secrets privilege’s dismissal option—it is
just protected differently. To ensure that sensitive information
is not inadvertently disclosed to the public, the § 1806(f)
procedures require the district court to consider the material
ex parte and in camera. The government uses these very
same procedures all the time when prosecuting suspected
terrorists; the government does so by choice, and without any
evident handwringing over whether the use of the § 1806(f)
procedures might lead to the disclosure of state secrets. And
the same ex parte and in camera review takes place when the
state secrets privilege is invoked, to ascertain whether it is
properly applicable and, if so, whether the case can go
forward without the sensitive evidence or must be dismissed;
110                       FAZAGA V. WALLS

that is exactly what happened in this case in the district
court.1

                                     II

    The dissent’s misleading assertions about the nature of the
§ 1806(f)’s procedures underpin its two major legal
propositions, neither of which is rooted in the facts of this
case, the text of FISA, or any binding precedent.

                                     A

    The dissent insists that the panel should have applied a
“clear statement” rule to the question whether the § 1806(f)
ex parte, in camera method of litigation displaces the state
secrets evidentiary privilege’s dismissal remedy.

   The panel could not have applied a “clear statement”
analysis. Our Circuit’s binding precedent required the panel
to ask whether FISA’s § 1806(f)’s procedures “speak[]


    1
       The dissent notes § 1806(f) and (g)’s disclosure provisions, which
are available only in exceptional circumstances. As far as we are aware,
there has never been a disclosure under FISA. And, as the panel opinion
noted: “As it is Plaintiffs who have invoked the FISA procedures, we
proceed on the understanding that they are willing to accept those
restrictions to the degree they are applicable as an alternative to dismissal,
and so may not later seek to contest them.” Amended Opinion at 49. In the
unprecedented event that a district court does order disclosure, nothing in
the panel opinion prevents the government from invoking the state secrets
privilege’s dismissal remedy as a backstop at that juncture. Finally, the
panel does not, as the dissent asserts, “warn” district judges that failure to
disclose evidence could constitute an abuse of discretion. Dissent at 134
n.9. The panel does not take any position on the appropriate standard of
review for a district court’s decision regarding the disclosure of FISA
materials. Rather, we merely note the approach adopted in other circuits.
                      FAZAGA V. WALLS                       111

directly” to the question otherwise answered by the dismissal
remedy in cases involving classified material related to
electronic surveillance. See Kasza v. Browner, 133 F.3d 1159,
1167 (9th Cir. 1998) (internal quotation marks and emphasis
omitted). As the panel opinion explained, the text, practice,
purpose, and history of FISA and § 1806(f) all quite clearly
demonstrate that the ex parte and in camera review
established by § 1806(f) squarely answers the “speak
directly” question.

    The dissent maintains the “speaks directly” standard
adopted in Kasza is wrong, because the state secrets
evidentiary privilege has constitutional origins. See Dissent
at 119, 129. The proposed new “clear statement”
requirement—effectively, that Congress had to name the state
secrets privilege, including its contingent dismissal remedy,
to replace that remedy—is improper in the current context for
two reasons.

    First, no matter the origins or role of the state secrets
privilege, at issue here is only the dismissal remedy that
sometimes follows the successful invocation of the state
secrets evidentiary privilege, when the case cannot as a
practical matter be litigated without the privileged evidence.
Jeppesen Dataplan, Inc., 614 F.3d at 1082–83. “Ordinarily,
simply excluding or otherwise walling off the privileged
information may suffice to protect the state secrets,” but, “[i]n
some instances . . . application of the privilege may require
dismissal of the action.” Id.

    The dissent portrays the state secrets privilege as a magic
wand that the Executive may wave to remove certain
information from litigation or, if necessary, end the case. Not
so. “The privilege belongs to the Government and must be
112                  FAZAGA V. WALLS

asserted by it,” but “[t]he court itself must determine whether
the circumstances are appropriate for the claim of privilege.”
United States v. Reynolds, 345 U.S. 1, 7–8 (1953); see also
El-Masri v. United States, 479 F.3d 296, 312 (4th Cir. 2007).
And the role of the court is especially pronounced when it
must determine whether dismissal is necessary. See Jeppesen
Dataplan, Inc., 614 F.3d at 1082–83. So the dismissal remedy
is not the state secrets privilege itself but a procedural
exigency, sometimes imposed by the courts to prevent
unfairness to the litigants once the evidentiary exclusion
privilege is invoked and recognized with regard to certain
evidence. Dismissal in the state secrets context is thus not
grounded in separation of powers concerns.

    Second, and more generally, as the panel opinion
recounts, at heart the state secrets privilege is an evidentiary
privilege, not a constitutional one. Amended Opinion
at 58–59; see In re United States, 872 F.2d 472, 474–75 (D.C.
Cir. 1989). Reynolds, which the dissent recognizes as the
wellspring of “the modern state secrets doctrine,” Dissent
at 128, itself made this point:

       We have had broad propositions pressed upon
       us for decision. On behalf of the Government
       it has been urged that the executive
       department heads have power to withhold any
       documents in their custody from judicial view
       if they deem it to be in the public interest.
       Respondents have asserted that the
       executive’s power to withhold documents was
       waived by the Tort Claims Act. Both positions
       have constitutional overtones which we find it
       unnecessary to pass upon, there being a
       narrower ground for decision.
                      FAZAGA V. WALLS                        113

345 U.S. at 6. As General Dynamics Corp. v. United States,
563 U.S. 478, 485 (2011), summarized, “Reynolds was about
the admission of evidence. It decided a purely evidentiary
dispute by applying evidentiary rules: The privileged
information is excluded, and the trial goes on without it.”

    Or the trial doesn’t go on, if the district court decides that
dismissal is necessary. But in the narrow context of classified
information related to electronic surveillance, FISA’s
procedures do away with the need for dismissal, by allowing
the court to consider the relevant materials during the course
of the litigation in the truncated and secrecy-protective
manner established by § 1806(f).

                                B

    The dissent also strives to insulate the government from
suit by paring back the coverage of § 1806(f) and related
provisions so as not to cover at all suits against the
government. The dissent thus presents FISA, and specifically
§ 1806(f), as single-mindedly concerned with protecting the
government’s ability to prosecute criminal defendants
without revealing national security secrets.

    FISA is decidedly not so one-sided. The dissent never
mentions a FISA provision, 50 U.S.C. § 1810, which
authorizes affirmative actions against the government
challenging electronic surveillance material as unlawfully
obtained. Ignoring § 1810, the dissent puts forward a view of
the reach of § 1806(f)’s procedures much too narrow to
accommodate the statute’s provision for affirmative relief.
Were the dissent’s one-way-ratchet position correct, in a
§ 1810 affirmative suit, the need to consider the same
evidence that was or should have been excluded in a
114                  FAZAGA V. WALLS

prosecution of a defendant (because the surveillance used to
collect the evidence is alleged to have been unlawful) could
lead to dismissal of a § 1810 suit seeking damages for that
same illegal surveillance.

    To position these procedures as a one-way ratchet for the
government, the dissent takes every opportunity to shrink the
reach of § 1806(f) and related provisions to a scope much
more circumscribed than their terms and purpose support. To
highlight four of the dissent’s efforts:

   •   To fit the dissent’s narrative that § 1806(f) applies
       only when the government is on the offensive, the
       dissent maintains that the government does not intend
       to “use” the relevant information over which it has
       asserted the state secrets privilege—a requisite for the
       application of § 1806(f)’s procedures. But here, the
       government’s primary reason for invoking the state
       secrets privilege’s dismissal remedy is its asserted
       need to use classified information to defend itself if
       the case went forward. The government submitted,
       alongside the Attorney General’s invocation of the
       state secrets privilege, an unclassified declaration
       stating that “[a]ddressing plaintiffs’ allegations in this
       case will risk or require the disclosure of certain
       sensitive information concerning counterterrorism
       investigative activity in Southern California,
       including in particular the nature and scope of
       Operation Flex.”

   •   The dissent also takes the word “use” out of context.
       FISA’s procedures apply “[w]henever the
       Government intends to enter into evidence or
       otherwise use or disclose in any trial, hearing, or other
                  FAZAGA V. WALLS                        115

    proceeding . . . any information obtained or derived
    from an electronic surveillance[.]” 50 U.S.C.
    § 1806(c) (emphasis added). In other words, the
    procedures apply whenever the government uses the
    information in “another way” or “any other way” than
    entering it into evidence. See Otherwise, The Oxford
    English Dictionary Online, https://www.oed.com/vi
    ew/Entry/133247?redirectedFrom=otherwise#eid (last
    visited June 22, 2020).

•   The dissent argues that, to trigger FISA’s review
    procedures, “an aggrieved person” must be the
    defendant. Dissent at 138–139. But the statute is not
    unidirectional. The dissent takes the “against an
    aggrieved person” phrase out of context to suit the
    dissent’s preferred ends. The statutory scheme
    establishes that § 1806(f)’s procedures apply
    “[w]henever the Government intends to enter into
    evidence or otherwise use or disclose in any trial,
    hearing, or other proceeding in or before any court,
    department, officer, agency, regulatory body, or other
    authority of the United States, against an aggrieved
    person, any information obtained or derived from an
    electronic surveillance of that aggrieved person.”
    § 1806(c). A “trial, hearing, or other proceeding”
    involves two parties, providing either an opportunity
    to introduce evidence—it is the evidence that is
    “against” someone.

•   The dissent states that “§ 1806(f) authorizes the
    review of only a limited set of documents: the FISA
    ‘application, order, and such other materials.’”
    Dissent at 132. But that is not what the statute says,
    and the full text of the relevant phrase tells an entirely
116                  FAZAGA V. WALLS

        different story: § 1806(f) authorizes the district court
        to review the “application, order, and such other
        materials relating to the surveillance as may be
        necessary to determine whether the surveillance of
        the aggrieved person was lawfully authorized and
        conducted.” § 1806(f) (emphasis added). As used in
        the actual statute as opposed to the dissent’s truncated
        version, “such” does not, as the dissent erroneously
        claims, refer only backwards to “application” and
        “order;” it also, and most prominently, applies
        forward to “materials relating to the surveillance as
        may be necessary to determine whether the
        surveillance of the aggrieved person was lawfully
        authorized and conducted.” §?1806(f); see Such,
        Merriam-Webster Online, https://www.merriam-
        webster.com/dictionary/such (last visited June 22,
        2020) (defining “such” principally to mean “of a kind
        or character to be indicated or suggested”) (emphasis
        added).

    In conjunction with misreading the statute in these and
other respects, the dissent avows that the panel opinion gives
“unintended breadth” to FISA. Dissent at 142 (quoting Yates
v. United States, 135 S. Ct. 1074, 1085 (2015)). But the only
way to know what “breadth” is “intended” is to read the
statute. Section 1806(f) speaks in the broadest language
possible. The procedures apply “whenever the Government
intends to enter into evidence or otherwise use or disclose in
any trial, hearing, or proceeding. . . any information obtained
or derived from an electronic surveillance” or “whenever any
motion or request is made . . . pursuant to any other statute or
rule of the United States or any State before any court or
other authority.” (Emphases added). If that capacious
language were not enough to maximize the provision’s reach,
                     FAZAGA V. WALLS                      117

every conceivable clause is separated by a disjunctive “or.”
Rather than “jam a square peg into a round hole,” Dissent at
143, or “hide elephants in mouseholes,” Dissent at 142
(quoting Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468
(2001)), the panel opinion acknowledged that, when statutes
use expansive language, we should understand that Congress
did not mean for us to read in limitations that are not there.

                             ***

    The dissent is replete with quotations from Washington,
Hamilton, and Jefferson, all making the indisputable point
that, to protect our national interest, our government must be
able to keep certain information secret. Neither the Founding
Fathers’ concerns about governmental secrecy nor broad
issues of executive authority are at issue in this case. The
question presented to the panel here was not whether the
government should be able to keep classified material secret
but how. The procedures established by § 1806(f) (which the
government leans on heavily when it is the prosecutor) ensure
secrecy. Under any reasonable reading of the statute, these
procedures, when otherwise applicable, supersede the state
secrets privilege’s contingent dismissal remedy and apply to
the information at issue in this case.

    For the forgoing reasons, we concur in the denial of
rehearing en banc.
118                  FAZAGA V. WALLS

STEEH, Senior District Judge, statement regarding the denial
of rehearing en banc:

    Although, as a visiting judge sitting by designation, I am
not permitted to vote on a petition for rehearing en banc, I
agree with the views expressed by Judges Berzon and Gould
in their concurrence in the denial of rehearing en banc.



BUMATAY, Circuit Judge, with whom CALLAHAN,
IKUTA, BENNETT, R. NELSON, BADE, LEE,
VANDYKE, Circuit Judges, join, and COLLINS and BRESS,
Circuit Judges, join except for Section III.A.2, dissenting
from the denial of rehearing en banc:

    From the earliest days of our Nation’s history, all three
branches of government have recognized that the Executive
has authority to prevent the disclosure of information that
would jeopardize national security. Embodied in the state
secrets privilege, such discretion lies at the core of the
executive power and the President’s authority as Commander
in Chief. Indeed, these powers were vested in a single person
precisely so that the Executive could act with the requisite
“[d]ecision, activity, secrecy, and d[i]spatch.” The Federalist
No. 70 (Alexander Hamilton) (emphasis added).

    In contrast to the broad constitutional design of the state
secrets privilege, Congress passed the Foreign Intelligence
Surveillance Act (“FISA”) for a limited function—to
establish procedures for the lawful electronic surveillance of
foreign powers and their agents. Among other things, FISA
provides a mechanism for in camera, ex parte judicial review
of electronic surveillance evidence when the government tries
                         FAZAGA V. WALLS                             119

to use such evidence, or a surveilled party tries to suppress it.
See 50 U.S.C. § 1806(f).1

    By its plain text and context, § 1806(f) provides
procedures to determine the admissibility of electronic
surveillance evidence—a commonplace gatekeeping function
exercised by courts throughout this country. When the
provision is triggered, courts review only a limited set of
documents, the FISA application, order, and like materials,
and may generally only suppress the evidence if it was
unlawfully obtained. § 1806(f), (g). Thus, § 1806(f) coexists
with the state secrets privilege by providing judicial oversight
over the government’s affirmative use of electronic
surveillance evidence, while preserving the Executive’s
constitutional prerogative to protect national security
information.

    But today, the Ninth Circuit, once again, strains the
meaning of a statute and adopts a virtually boundless view of
§ 1806(f). Under the court’s reading, this narrow provision
authorizes judicial review of any evidence, on any claim, for
any purpose, as long as the party’s allegations relate to
electronic surveillance.        With this untenably broad
interpretation, the court then rules that the judicial branch will
not recognize the state secrets privilege over evidence with


     1
       All statutory references are to Title 50 of the United States Code.
In relevant part, § 1806(f) provides, when triggered, “the United States
district court . . . shall, notwithstanding any other law, if the Attorney
General files an affidavit under oath that disclosure or an adversary
hearing would harm the national security of the United States, review in
camera and ex parte the application, order, and such other materials
relating to the surveillance as may be necessary to determine whether the
surveillance of the aggrieved person was lawfully authorized and
conducted.”
120                  FAZAGA V. WALLS

any connection to electronic surveillance. Most alarming,
this decision may lead to the disclosure of state secrets to the
very subjects of the foreign-intelligence surveillance. With
this, I cannot agree.

    Our court’s decision ignores that Congress articulated no
directive in FISA to displace the state secrets privilege—even
under the most generous abrogation standards. More
fundamentally, the court should have ensured that Congress
was unmistakably clear before vitiating a core constitutional
privilege. When the Supreme Court confronts a legislative
enactment implicating constitutional concerns—federalism or
separation of powers—it has commonly required a clear
statement from Congress before plowing ahead. It has done
so out of a due respect for those constitutional concerns. The
state secrets privilege deserves the same respect.

    In discovering abrogation of the state secrets privilege
more than 40 years after FISA’s enactment, our court disrupts
the balance of powers among Congress, the Executive, and
the Judiciary. We have previously recognized that the state
secrets doctrine preserves the difficult balance among
“fundamental principles of our liberty, including justice,
transparency, accountability and national security.”
Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1073
(9th Cir. 2010) (en banc). Our refusal to reexamine this case
now tips that balance in favor of inventive litigants and
overzealous courts, to the detriment of national security.
Moving forward, litigants can dodge the state secrets
privilege simply by invoking “electronic surveillance”
somewhere within the Ninth Circuit. And in defending such
cases, the government may be powerless to prevent the
disclosure of state secrets. For this reason, I respectfully
dissent from the denial of rehearing en banc.
                         FAZAGA V. WALLS                              121

                                    I.

    In this case, Yassir Fazaga and his co-plaintiffs sued the
United States, the FBI, and FBI special agents, for using an
informant to gather information from the Muslim community
in Southern California. Their complaint asserted numerous
constitutional and statutory causes of action alleging unlawful
searches and surveillance and violations of their religious
liberty.

    Soon after the suit was filed, the FBI asserted the state
secrets privilege over information related to its investigation.
Through a declaration of the Attorney General, the
government warned that proceeding on the claims risked the
disclosure of state secrets.2 Accordingly, the government
moved to dismiss the religious liberty claims.

    After scrutinizing the government’s classified and
unclassified declarations, the district court validated its
assertion of the privilege. The court found that the litigation
involved intelligence that, if disclosed, would significantly
compromise national security. Because the risk of disclosure
could not be averted through protective orders or other
restrictions, the court dismissed all but one of the claims.

    On appeal, a panel of this court reversed. The panel first
held that FISA abrogated the state secrets privilege. It
thought that § 1806(f) “speaks directly” to the same concerns


    2
      Specifically, the government sought to withhold evidence that would
(1) confirm or deny the particular targets of the investigation; (2) reveal
the initial reasons for opening the investigation, the materials uncovered,
or the status and results of the investigation; and (3) reveal particular
sources or methods used.
122                  FAZAGA V. WALLS

as the state secrets privilege and, thus, displaced it—despite
recognizing that the privilege “may” have a “constitutional
core” or “constitutional overtones.” Am. Op. at 58–59. Next,
the court held that § 1806(f)’s review procedures were
triggered in this case. As a result, the court instructed the
district court to use those procedures to review any evidence
relating to the alleged electronic surveillance—even the
evidence that the government asserted constituted state
secrets.

   Because each of these holdings is erroneous, we should
have reviewed this case en banc.

                              II.

    Abrogation of ordinary common law is rooted in due
respect for Congress. “Federal courts, unlike state courts, are
not general common-law courts and do not possess a general
power to develop and apply their own rules of decision.” City
of Milwaukee v. Illinois, 451 U.S. 304, 312 (1981).
Accordingly, once “the field has been made the subject of
comprehensive legislation,” federal common law must yield
to the legislative enactment. Id. at 314. In the ordinary case,
Congress need not affirmatively proscribe the use of federal
common law, but it must “speak directly” to the questions
previously addressed by common law. Id. at 315.

    Yet this is no ordinary case. Here, the court didn’t
abrogate run-of-the-mill, judicially created common law—it
displaced an executive privilege. And it did so while
summarily dismissing the constitutional and separation-of-
powers implications of its holding. Before supplanting a
privilege held by a co-equal branch of government, courts
would be wise to consider the Constitution and the history of
                     FAZAGA V. WALLS                       123

the privilege at issue. As Justice Scalia recognized, “a
governmental practice [that] has been open, widespread, and
unchallenged since the early days of the Republic” deserves
special deference. NLRB v. Noel Canning, 573 U.S. 513, 572
(2014) (Scalia, J., concurring) (citations omitted). This
approach should guide our analysis here.

                              A.

    Article II of the Constitution commands that “[t]he
executive Power shall be vested in a President of the United
States of America.” U.S. Const. art. II, § 1. And the President
is also designated as the “Commander in Chief of the Army
and Navy of the United States.” U.S. Const. art. II, § 2.

    By these terms, the Constitution was originally
understood to vest the President with broad authority to
protect our national security. See Hamdi v. Rumsfeld,
542 U.S. 507, 580 (2004) (Thomas, J., dissenting) (“The
Founders intended that the President have primary
responsibility—along with the necessary power—to protect
the national security and to conduct the Nation’s foreign
relations.”). As Hamilton observed, a single Executive could
better act with “[d]ecision, activity, secrecy, and d[i]spatch”
as would be required to respond to the national security crises
of the day. The Federalist No. 70 (Alexander Hamilton).

    Secrecy, at least at times, is a necessary concomitant of
the executive power and command of the Nation’s military.
As commander of the Continental Army, George Washington
explained to Patrick Henry that “naturally . . . there are some
Secrets, on the keeping of which so, depends, oftentimes, the
salvation of an Army: Secrets which cannot, at least ought not
124                      FAZAGA V. WALLS

to, be [e]ntrusted to paper; nay, which none but the
Commander in Chief at the time, should be acquainted with.”3

    Given the Executive’s inherent need for secrecy, it comes
as no surprise that early presidents regularly asserted a
privilege over the disclosure of sensitive information.4 In
1792, when President Washington found himself faced with
the first-ever congressional request for presidential materials,
he recognized an executive privilege to avoid disclosure of
secret material. See Abraham D. Sofaer, Executive Power
and the Control of Information: Practice Under the Framers,
1977 Duke L.J. 1, 5–6. Washington’s Cabinet, including
Hamilton and Jefferson, agreed “that the executive ought to
communicate such papers as the public good would permit,
and ought to refuse those, the disclosure of which would
injure the public.” Id. at 6 (quoting The Complete Jefferson
1222 (S. Padover ed. 1943)); see also Mark J. Rozell,
Restoring Balance to the Debate over Executive Privilege: A
Response to Berger, 8 Wm. & Mary Bill Rts. J. 541, 556
(2000).



    3
      Letter from George Washington to Patrick Henry (Feb. 24, 1777),
Library of Congress, https://www.loc.gov/resource/mgw3h.001/?sp=26
&st=text.
    4
       Although this history recounts executive privileges in general, the
state secrets privilege has been described as a “branch of the executive
privilege.” Marriott Int’l Resorts, L.P. v. United States, 437 F.3d 1302,
1307 (Fed. Cir. 2006). To the extent there are distinctions among
executive privileges, the state secrets privilege is more inviolable. See
United States v. Nixon, 418 U.S. 683, 706 (1974) (distinguishing between
privileges based “solely on the broad, undifferentiated claim of public
interest in the confidentiality of such conversations” with those asserted
from the “need to protect military, diplomatic, or sensitive national
security secrets”).
                      FAZAGA V. WALLS                         125

    President Jefferson, even as a prominent critic of an
overly strong executive branch, held the same view on the
need for secrecy. As he put it in 1807, “[a]ll nations have
found it necessary, that for the advantageous conduct of their
affairs, some of these proceedings, at least, should remain
known to their executive functionary only. He, of course,
from the nature of the case, must be the sole judge of which
of them the public interests will permit publication.”5
Similarly, Jefferson wrote to the prosecutor of the Aaron Burr
case to explain that it was “the necessary right of the
President . . . to decide, independently of all other authority,
what papers, coming to him as President, the public interests
permit to be communicated, & to whom.”6

    Founding-era Presidents were not alone in their view.
Members of Congress also respected some degree of
executive privilege.         When Washington refused a
congressional request for materials, then-Representative
James Madison disagreed with Washington’s refusal, but also
recognized that “the Executive had a right, under a due
responsibility, also, to withhold information, when of a nature
that did not permit a disclosure of it at the time.” 5 Annals of
Cong. 773 (1796); Sofaer, supra at 12. Others went further,
asserting, for example, that the President “had an undoubted
Constitutional right, and it would be his duty to exercise his
discretion on this subject, and withhold any papers, the


    5
      Letter from Thomas Jefferson to George Hay (June 17, 1807),
Library of Congress, https://www.loc.gov/resource/mtj1.038_0446_044
6/?st=text.
    6
      Letter from Thomas Jefferson to George Hay (June 12, 1807),
Library of Congress, https://www.loc.gov/resource/mtj1.038_0446_044
6/?st=text.
126                  FAZAGA V. WALLS

disclosure of which would, in his judgment, be injurious to
the United States.” 5 Annals of Cong. 675 (1796) (remarks
of Rep. Hillhouse).

    Congress’s early actions also reflected a deference to the
Executive’s authority to limit disclosures. When seeking
information from the President, Congress narrowed its
requests to such presidential papers “of a public nature,”
3 Annals of Cong. 536 (1792), or “as he may think proper,”
4 Annals of Cong. 250–51 (1794), and excluded “such
[papers] as he may deem the public welfare to require not to
be disclosed.” 16 Annals of Cong. 336 (1807). Thus, early
Congresses “practically always” qualified their requests for
foreign-affairs information to those documents that “in [the
President’s] judgment [were] not incompatible with the
public interest.” Henry M. Wriston, Executive Agents in
American Foreign Relations 121–22 (1929).

     Like the Executive and Congress, the Judiciary has long
recognized an executive privilege over sensitive information.
Chief Justice Marshall suggested that if the Attorney General
“thought that any thing was communicated to him in
confidence he was not bound to disclose it” in the litigation.
Marbury v. Madison, 5 U.S. 137, 144 (1803); see also Robert
M. Chesney, State Secrets and the Limits of National Security
Litigation, 75 Geo. Wash. L. Rev. 1249, 1271 (2007). And
in response to President Jefferson’s objection to producing a
letter in the Burr trial, Chief Justice Marshall explained that
there was “nothing before the court which shows that the
letter in question contains any matter the disclosure of which
would endanger the public safety,” but “[t]hat there may be
matter, the production of which the court would not require,
is certain.” United States v. Burr, 25 F. Cas. 30, 37 (C.C.D.
Va. 1807); see also Chesney, supra at 1272–73 (arguing that
                     FAZAGA V. WALLS                        127

the Burr trial is significant for Marshall’s introduction of the
idea that “risk to public safety might impact discoverability
of information held by the government”).                Perhaps
anticipating the modern-day state secrets privilege, Marshall
made clear “that the remedy he contemplated for executive
withholding would be dismissal of the prosecution, rather
than an order directing the President to appear or punishing
any executive officer.” Sofaer, supra at 17.

    The Supreme Court also recognized that President
Lincoln “was undoubtedly authorized during the war, as
commander-in-chief of the armies of the United States, to
employ secret agents to enter the rebel lines and obtain
information respecting the strength, resources, and
movements of the enemy[.]” Totten v. United States, 92 U.S.
105, 106 (1875). In Totten, the Court dismissed a contract
claim where the very existence of the alleged contract needed
to be concealed. Id. Such concealment was a reality “in all
secret employments of the government in time of war, or
upon matters affecting our foreign relations, where a
disclosure of the service might compromise or embarrass our
government in its public duties, or endanger the person or
injure the character of the agent.” Id.

    Consistent with early historical practice and Founding-era
understandings, modern courts have recognized the Article II
dimension of executive privileges. See Nixon, 418 U.S.
at 711 (explaining that when a privilege against disclosure
relates to the “effective discharge of a President’s powers, it
is constitutionally based”); Franchise Tax Bd. of California
v. Hyatt, 139 S. Ct. 1485, 1498–99 (2019) (identifying the
“executive privilege” as one of the “constitutional doctrines”
that are “implicit in the [Constitution’s] structure and
supported by historical practice”); see also Dep’t of Navy v.
128                       FAZAGA V. WALLS

Egan, 484 U.S. 518, 527 (1988) (“The authority to protect
[national-security] information falls on the President as head
of the Executive Branch and as Commander in Chief.”).7 As
Justice Jackson succinctly put it: “The President, both as
Commander-in-Chief and as the Nation’s organ for foreign
affairs, has available intelligence services whose reports
neither are nor ought to be published to the world.” Chicago
& S. Air Lines v. Waterman S. S. Corp., 333 U.S. 103, 111
(1948).

     This brings us to the modern state secrets doctrine,
articulated in United States v. Reynolds, 345 U.S. 1 (1953).
In Reynolds, the Court recognized the Executive’s “well
established” privilege against revealing military and state
secrets. Id. at 7–8. The Court held that “even the most
compelling necessity cannot overcome the claim of privilege”
if state secrets are at stake. Id. at 11; see also El-Masri v.
United States, 479 F.3d 296, 303 (4th Cir. 2007) (“Although
the state secrets privilege was developed at common law, it
performs a function of constitutional significance, because it
allows the executive branch to protect information whose
secrecy is necessary to its military and foreign-affairs
responsibilities.”). As an en banc court, we’ve respected the
ability of the government to seek to “completely remove[]”
state secrets from litigation or even seek “dismissal of the
action.” Jeppesen, 614 F.3d at 1082–83. And in evaluating
the assertion of the privilege, we “defer to the Executive on
matters of foreign policy and national security.” Id.



    7
      None of this is to say that the Executive has an absolute privilege to
prevent the disclosure of material under any circumstance. I explore this
history only insofar as it bears on the particular issue in this case—the
proper standard to apply before abrogating the state secrets privilege.
                     FAZAGA V. WALLS                      129

                             B.

    Given this constitutional and historical background,
courts ought to tread carefully before jettisoning the state
secrets privilege. Here, we should have done so by requiring
a clear congressional statement before displacing the
privilege. By waiting for a clear statement, we would have
avoided assuming that Congress has “by broad or general
language, legislate[d] on a sensitive topic inadvertently or
without due deliberation.” Spector v. Norwegian Cruise Line
Ltd., 545 U.S. 119, 139 (2005) (plurality opinion). Instead,
the court today undermines a longstanding executive
privilege by finding abrogation lurking in FISA’s murky text.

    Unlike abrogation of ordinary common law, which shows
our deference to Congress, the displacement of the state
secrets privilege creates a tension between Congress and the
Executive because we elevate a statute over a constitutionally
based privilege. As the Court advises, we should be
“reluctant to intrude upon the authority of the Executive in
military and national security affairs” until “Congress
specifically has provided otherwise.” Egan, 484 U.S. at 530.
Thus, whether FISA merely “speaks directly” to the same
concerns as the privilege should not be sufficient to deprive
the Executive of a constitutionally derived right. Instead, we
should have constrained ourselves to respecting the privilege
unless and until a statute unmistakably and unquestionably
dictates otherwise.

    This is not a novel idea. When a matter implicates
constitutional concerns, the Court has regularly required a
clear statement. See, e.g., Will v. Michigan Dep’t of State
Police, 491 U.S. 58, 65 (1989) (requiring Congress to be
“unmistakably clear” before altering the “usual constitutional
130                  FAZAGA V. WALLS

balance between the States and the Federal Government”);
Franklin v. Massachusetts, 505 U.S. 788, 800–01 (1992)
(requiring an express statement before subjecting presidential
action to APA review “[o]ut of respect for the separation of
powers and the unique constitutional position of the
President”). The Court has likewise required a clear
statement before abrogating Indian treaty rights, out of a
respect for tribal sovereignty. See United States v. Dion,
476 U.S. 734, 739 (1986) (explaining the reluctance to find
abrogation absent “explicit statutory language”).

    Applying such a standard is also consistent with the
constitutional-avoidance canon. See United States ex rel.
Attorney Gen. v. Delaware & Hudson Co., 213 U.S. 366, 408
(1909) (“[W]here a statute is susceptible of two constructions,
by one of which grave and doubtful constitutional questions
arise and by the other of which such questions are avoided,
our duty is to adopt the latter.”). Thus, when “a particular
interpretation of a statute invokes the outer limits of
Congress’ power,” as is the case here, we should “expect a
clear indication that Congress intended that result.” I.N.S. v.
St. Cyr, 533 U.S. 289, 299 (2001).

    All in all, we should be “loath to conclude that Congress
intended to press ahead into dangerous constitutional thickets
in the absence of firm evidence that it courted those perils.”
Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 466
(1989). But the court here is undeterred. It reads FISA as
abrogating the privilege despite the lack of any firm evidence
that Congress sought to do so. And rather than consulting the
Constitution or the history of the state secrets privilege, the
court simply waves off the privilege as something that “may”
have a “constitutional core” or “constitutional overtones.”
Am. Op. at 58–59. Respectfully, when we suspect that an
                     FAZAGA V. WALLS                       131

executive privilege “may” have a “constitutional core,” we
should do more before tossing it aside. Had we done so here,
perhaps we would’ve recognized that the Article II roots of
the privilege and its long history require that Congress be
unmistakably clear before we simply replace it with a
congressional enactment. And because FISA makes no
mention of the state secrets privilege, the statute would fall
pitifully short of this standard.

                              C.

    Even if we should stick with the run-of-the-mill, “speaks
directly” standard for displacement, FISA still falls short.
Demonstrating that a statute speaks directly to the same
questions as the common law is no low bar. See, e.g., United
States v. Texas, 507 U.S. 529, 535 (1993) (holding that
silence in a statute “falls far short of an expression of
legislative intent to supplant the existing common law in that
area”). The court’s analysis does not clear this bar.

    At the outset, the court’s opinion critically fails to
recognize the circumscribed purpose of § 1806(f)—to provide
a mechanism to review the admissibility of electronic
surveillance evidence. See infra section III. Determining the
admissibility of evidence is an everyday function of courts.
Section 1806(f) merely adds extra precautions in the case of
electronic surveillance evidence. Nothing more. The
statute’s design is in stark contrast to the constitutional
purpose of the state secrets privilege—to ensure our
“defer[ence] to the Executive on matters of foreign policy and
national security” and to prevent courts from “second
guessing the Executive in this arena.” Jeppesen, 614 F.3d
at 1081–82. Contrary to the court’s interpretation, § 1806(f)
and the state secrets privilege stand side by side, maintaining
132                      FAZAGA V. WALLS

the Judiciary’s control over the admissibility of evidence on
one hand while deferring to the Executive’s authority to
protect national security information on the other.

    Relatedly, the court also overlooks a significant limitation
on § 1806(f)’s scope of review. Section 1806(f) authorizes
the review of only a limited set of documents: the FISA
“application, order, and such other materials.” The court’s
decision treats this language as allowing review of “any”
materials tangentially related to electronic surveillance. Am.
Op. at 102–103. But the phrase “such other materials” cannot
be read so boundlessly. See Circuit City Stores, Inc. v.
Adams, 532 U.S. 105, 114–15 (2001) (“[W]here general
words follow specific words in a statutory enumeration, the
general words are construed to embrace only objects similar
in nature to those objects enumerated by the preceding
specific words.”). Even without this canon, ordinary users of
the English language understand the word “such” to mean
“something similar,” “of the same class, type, or sort,” or “of
the character, quality, or extent previously indicated or
implied.” Such, Webster’s Ninth New Collegiate Dictionary
(1986).8

    Thus, the phrase “such other material” refers to
documentary evidence like the “application” and “order”; in
other words, materials containing information necessary to
authorize the surveillance. See, e.g., § 1804(c) (“The judge
may require the applicant to furnish such other information


    8
        Continuing to ignore this longstanding canon of interpretation, the
concurrence to the denial of rehearing en banc doubles down on a
boundless reading of this phrase. But this reading treats the word “such”
as if it meant “any.” We should apply the statute as Congress wrote it, not
as we might wish it to be.
                     FAZAGA V. WALLS                        133

as may be necessary to make the determinations required [to
authorize the surveillance under § 1804].”) (emphasis added).
It does not broadly reach any evidence related to electronic
surveillance as the court’s decision assumes. It certainly does
not reach the evidence over which the government asserted
the privilege—which goes far beyond FISA documents. See
supra note 2.

    Furthermore, § 1806(f) didn’t create anything novel to
suggest displacement of the state secrets privilege. The
court’s opinion treats § 1806(f) as enacting “an alternative
mechanism” of ex parte, in camera review, which shows
Congress’s intent to “eliminate[] the need to dismiss the case
entirely” under the state secrets privilege. Am. Op. at 61–62.
Not so. Pre-FISA courts already conducted in camera and ex
parte review with regularity. See United States v. Belfield,
692 F.2d 141, 149 (D.C. Cir. 1982) (recognizing that prior to
FISA courts had “constantly” and “uniformly” held that “the
legality of electronic, foreign intelligence surveillance may,
even should, be determined on an in camera, ex parte basis”).
Given that ex parte, in camera review procedures coexisted
with the state secrets privilege before FISA, there’s no reason
to construe Congress’s codification of such procedures as an
intent to eliminate the privilege.

    Nor does § 1806(f)’s triggering process—the filing of an
affidavit under oath by the Attorney General—support
abrogation. The court views the superficial similarity
between the assertion of the state secrets privilege by the head
of a department, see Jeppesen, 614 F.3d at 1080, and
§ 1806(f)’s affidavit requirement as evidence that Congress
intended abrogation. Such evidence actually cuts the other
way. Under FISA, the definition of “Attorney General”
permits a number of lower-ranked Department of Justice
134                       FAZAGA V. WALLS

officials to invoke FISA’s judicial review procedures, see
§ 1801(g), which makes sense given its main use in criminal
prosecutions. By contrast, the head of any department has the
non-delegable authority to assert the state secrets privilege.
Jeppesen, 614 F.3d at 1080. Nothing in FISA’s text suggests
that Congress sought to remove the privilege from the hands
of the Secretary of State, the Director of National
Intelligence, and other cabinet heads, and simply transfer it to
the Attorney General and his subordinates. Contrary to the
court’s assessment, the difference between who can assert the
privilege and who can invoke § 1806(f) reaffirms that FISA
coexists with, rather than displaces, the state secrets privilege.

    Finally, the court’s view of FISA as a replacement for the
state secrets privilege ignores that the provision not only
authorizes but mandates disclosure. See § 1806(g) (requiring
the court to disclose evidence “to the extent that due process
requires discovery or disclosure”); see also § 1806(f)
(authorizing the court to disclose evidence to the aggrieved
person when “necessary to make an accurate determination of
the legality of the surveillance”). And under the court’s
broad reading, FISA may very well authorize disclosure of
state secrets to the very subjects of the surveillance. See Am.
Op. 68 (holding that plaintiffs’ request for electronic
surveillance evidence triggers § 1806(f) review). 9



    9
       For the first time, Judge Berzon announces that the panel’s opinion
is actually limited to the state secrets privilege’s dismissal remedy and that
the government is free to reassert the privilege if the district court orders
disclosure. See Concurrence at 110 n.1. This is news to anyone reading
the panel opinion, which explicitly authorizes the district court to
“disclose” state secrets evidence to the “plaintiffs.” See Am. Op. at 103.
The opinion goes so far to warn that “not” disclosing such evidence could
constitute an abuse of discretion. Id. at 103 n.49 (emphasis added).
                         FAZAGA V. WALLS                              135

    But the state secrets privilege does not tolerate any
disclosure—not even in camera and ex parte—if it can be
avoided. See Reynolds, 345 U.S. at 10 (“[T]he court should
not jeopardize the security which the privilege is meant to
protect by insisting upon an examination of the evidence,
even by the judge alone, in chambers.”). Such disclosures,
when involving national security secrets, are inimical to the
secrecy afforded to the Executive under Article II. Thus,
FISA fails to speak directly to the paramount concern for the
secrecy at the heart of the state secrets privilege.

    Given the silence of the statutory text, it’s unsurprising
that the court’s opinion resorts to legislative history to
support abrogation. But “legislative history is not the law.”
Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1631 (2018). We
“have no authority to enforce a principle gleaned solely from
legislative history that has no statutory reference point.”
Shannon v. United States, 512 U.S. 573, 584 (1994) (cleaned
up). Even so, from hundreds of pages of legislative history,
the court excavates only vague quotes describing FISA as a
“fundamental reform” aimed at curbing unchecked executive
surveillance. See Am. Op. at 63–64. The court can’t even
muster up a single floor statement mentioning the state


     Nevertheless, that the panel needs to amend its opinion through a
nonbinding concurrence is reason enough for us to have reheard this case
en banc. We owe the district courts and litigants a clear statement of the
law—especially in a case implicating national security concerns. More
fundamentally, this newly crafted limitation of the court’s holding doesn’t
alter any of the concerns raised in this dissent and in many ways
exacerbates them. The court’s holding, even as purportedly limited,
impinges on a constitutionally based privilege based on a misreading of
FISA. And if raising concerns about the court’s degradation of separation
of powers and our constitutional design makes me a “veritable Russian
doll” maker, see Concurrence at 108, then bring on the dolls.
136                  FAZAGA V. WALLS

secrets privilege. Even for those who would rely on
legislative history, this alone should end the inquiry.

    Nevertheless, the legislative history shows that—contrary
to the court’s view—the state secrets privilege coexists with
FISA. For example, a committee report notes that preexisting
“defenses against disclosure,” which would include the state
secrets privilege, were intended to be undisturbed by FISA.
See H.R. Rep. No. 95-1283, at 93 (1978). Another report
explained that even when § 1806(f) applied, the government
could still “prevent[]” the court’s “adjudication of legality”
simply by “forgo[ing] the use of the surveillance-based
evidence” where disclosure of such evidence “would damage
the national security.” S. Rep. No. 95-701, at 65 (1978). And
another explains that § 1806(f) was crafted “to prevent these
carefully drawn procedures from being bypassed by the
inventive litigant.” H.R. Rep. No. 95-1283, at 91.

     Ultimately, despite the lengthy excursion into FISA’s
legislative history, the court simply ignores material that
undermines its interpretation. We’re instead offered only
generic, cherry-picked quotes about FISA—proving yet again
that relying on legislative history is “an exercise in looking
over a crowd and picking out your friends.” Exxon Mobil
Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005)
(cleaned up). But if § 1806(f) was not meant for “inventive
litigants,” it was equally not meant for inventive courts.

                             III.

   Most frustrating about our court’s decision here is that
§ 1806(f) doesn’t even apply to plaintiffs’ case. Section
1806(f) isn’t a freestanding vehicle to litigate the merits of
any case involving electronic surveillance. FISA’s review
                     FAZAGA V. WALLS                        137

procedures are triggered only to determine the admissibility
of the government’s electronic surveillance evidence. In this
case, the government never sought to admit and plaintiffs
never sought to suppress any such evidence. Accordingly,
§ 1806(f) wasn’t invoked. Yet the court creatively interprets
two clauses of the statute to foist FISA’s review mechanism
into this case.        We should have corrected this
misinterpretation through en banc review.

                              A.

    Section 1806(f)’s review procedures are triggered if the
government gives notice that it “intends to enter into evidence
or otherwise use or disclose in any trial, hearing, or other
proceeding . . ., against an aggrieved person, any information
obtained or derived from an electronic surveillance of that
aggrieved person[.]” § 1806(c), (f). The court held that when
the government asserted the state secrets privilege it
effectively gave notice that it intended to “use” the evidence
against plaintiffs. This is wrong for two separate reasons.

                               1.

    First, § 1806(c) doesn’t apply because the government
isn’t seeking to use the state secrets as evidence. By asserting
the privilege, the government is not using evidence in any
reasonable sense of the word. Quite the opposite: the
government seeks to remove this evidence to avoid disclosing
state secrets. See Jeppesen, 614 F.3d at 1079 (“A successful
assertion of privilege under Reynolds will remove the
privileged evidence from the litigation.”). The court suggests
that it “is precisely because the Government would like to use
this information to defend itself that it has asserted the state
secrets privilege.” Am. Op. at 67. But this is precisely
138                   FAZAGA V. WALLS

backwards. It transforms the government’s expressed
inability to use evidence into an expressed intent to use it.
Such upside-down logic should not stand.

    And no matter what tortured conception of “use” the court
conjures up here, to “use” something means to do so for its
intended purpose. Smith v. United States, 508 U.S. 223, 242
(1993) (Scalia, J., dissenting). “When someone asks, ‘Do you
use a cane?,’ he is not inquiring whether you have your
grandfather’s silver-handled walking stick on display in the
hall; he wants to know whether you walk with a cane.” Id.
So too here: the government is not “using” the evidence
merely by asserting the privilege over it. Evidence is “used”
when it is being offered for admission or disclosed for some
other evidentiary purpose.

                               2.

     Second, it’s doubtful that § 1806(c) could apply here
since there was no proceeding against “an aggrieved person.”
By its terms, this provision applies only to a “trial, hearing, or
other proceeding” “against an aggrieved person.” § 1806(c).
This interpretation flows from the nearest-reasonable-referent
canon. See Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 140–41 (2012) (“When the
syntax involves something other than a parallel series of
nouns or verbs, a prepositive or postpositive modifier
normally applies only to the nearest reasonable referent.”).
It’s also consistent with ordinary usage. Although the court
now proclaims the opposite, see Am. Op. at 70, we
commonly refer to trials, hearings, and proceedings as being
                         FAZAGA V. WALLS                             139

“against” a party.10 Instead, the court curiously views
“against an aggrieved person” as modifying the phrase
“information obtained or derived.” But under that odd
interpretation, this phrase would be modified twice by
“aggrieved person.” The statute would be triggered by the
government’s use of “any information obtained or derived
[against the aggrieved person] from an electronic surveillance
of that aggrieved person.” § 1806(c). That is not a sensical
reading.11

                                   B.

    Perhaps sensing the weakness of its § 1806(c) reasoning,
the court serves an alternative explanation for how FISA’s
review procedures were triggered. Section 1806(f) also
provides that its procedures are invoked:


    10
       See, e.g., Paine v. City of Lompoc, 265 F.3d 975, 986 (9th Cir.
2001) (“trial against these two defendants”); United States v. Branch,
368 F. App’x 842, 844 (9th Cir. 2010) (“misconduct hearing against the
government”); Lopez-Aguilar v. Barr, 948 F.3d 1143, 1146 (9th Cir. 2020)
(“removal proceedings against Lopez-Aguilar”).
    11
       The phrase “against an aggrieved person” also doesn’t modify
“enter into evidence or otherwise use or disclose.” For adherents to the
familiar surplusage canon, this reading would render the phrase
completely superfluous. After all, who else is the government going to
use the evidence against but the aggrieved person? Additionally, in
ordinary English, we don’t often speak about “disclos[ing]” information
“against” someone. And if this construction was intended, we would have
expected Congress to make this point clear by placing the phrase closer to
the verbs it modifies. See United States v. Nader, 542 F.3d 713, 717–18
(9th Cir. 2008) (“A prepositional phrase with an adverbial or adjectival
function should be as close as possible to the word it modifies to avoid
awkwardness, ambiguity, or unintended meanings.”) (quoting The
Chicago Manual of Style ¶ 5.167 (15th ed. 2003)).
140                  FAZAGA V. WALLS

       whenever any motion or request is made by an
       aggrieved person pursuant to any other statute
       or rule . . . to discover or obtain applications
       or orders or other materials relating to
       electronic surveillance or to discover, obtain,
       or suppress evidence or information obtained
       or derived from electronic surveillance under
       this chapter[.]

§ 1806(f).

    By its context, this clause is designed to funnel an
aggrieved person’s evidentiary motions and requests—which
could be brought under a myriad of preexisting statutes or
rules—into § 1806(f)’s admissibility review procedures. It is
not an independent grant of authority to force government
disclosure under § 1806(f) anytime, for any reason, for any
evidence, as long as a party has some claim relating to
electronic surveillance.

    But the court holds that the clause was triggered because
the plaintiffs’ complaint requested injunctive relief ordering
the government to destroy or return any unlawfully obtained
materials. According to the court, by asking for the “return”
of electronic surveillance, the complaint’s prayer for relief
serves as a “request[]” to “obtain” that information within the
meaning of § 1806(f). Am. Op. 68.

    Contrary to the court’s expansive interpretation, this
clause is limited to procedural motions pertaining to the
admissibility of evidence, like the familiar “motion[s]” to
“discover, obtain, or suppress.” § 1806(f). The clause’s use
of the word “request” does not change this analysis since it
must be read alike with “motion.” See Freeman v. Quicken
                         FAZAGA V. WALLS                            141

Loans, Inc., 566 U.S. 624, 634–35 (2012) (applying the
“commonsense canon” that “a word is given more precise
content by the neighboring words with which it is
associated”). In this context, these two terms refer to
procedural actions such as a “production request” or a
“motion to discover evidence,” not substantive requests for
relief.12

    We’re also not to read “motion or request” in a vacuum.
The provision refers to motions and requests “[made]
pursuant to any other statute or rule . . . to discover, obtain, or
suppress evidence or information.” § 1806(f). This context
makes clear that that the provision covers only procedural
motions or requests, not plaintiffs’ substantive claims for
relief. It likewise confirms that the clause is not an
independent grant of authority, but relies on other statutes and
rules—which would remain subject to evidentiary privileges.

     In treating plaintiffs’ complaint as a request sufficient to
trigger § 1806(f), the court reads too much into the word
“obtain,” which must be read in the context of “the company
it keeps.” Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995).
Here, “obtain” is spliced between “discover” and “suppress,”
both of which are procedural, evidentiary actions having
nothing to do with substantive claims or injunctive relief.
Accordingly, “obtain” is similarly limited to pretrial actions
aimed at evaluating the admissibility of evidence. See, e.g.,

    12
       Seemingly whenever the phrase “motion or request” appears it
refers to a procedural action. See, e.g., 17 U.S.C. § 803(b)(6)(C)(v)
(“motion or request to compel production”); Fed. R. Crim. P. 29, Advisory
Comm. Notes to 2005 amendments (“motion or request” for an extension
of time); Charles A. Wright et al., Federal Practice and Procedure:
Criminal § 261 (4th ed. 2020 Update) (Rule 12(c) authorizes time for
“making of pre-trial motions or requests”).
142                      FAZAGA V. WALLS

Fed. R. Civ. P. 26(b)(1) (“Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any
party’s claim or defense and proportional to the needs of the
case[.]”).

     FISA’s structure also confirms the clause’s limitation to
pretrial motions relating to the admissibility of evidence. All
of the other triggering mechanisms of § 1806(f)—subsections
(c), (d), and (e)—are pretrial, procedural actions to secure a
ruling on the admissibility of evidence. This clause must be
read in a similar light to avoid “giving unintended breadth to
the Acts of Congress.” Yates v. United States, 135 S. Ct.
1074, 1085 (2015). It would be odd for Congress to
ambiguously bury a substantive right for plaintiffs to “obtain”
national security secrets in the muddled language of
§ 1806(f). We know that this can’t be the case because
Congress does not “hide elephants in mouseholes.” Whitman
v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001).

    Additionally, FISA does not recognize injunctive relief.
ACLU Found. of S. California v. Barr, 952 F.2d 457, 470
(D.C. Cir. 1991) (“Not only does § 1806(f) not create or
recognize a cause of action for an injunction or for a
declaratory judgment, but the scheme it sets up makes clear
that nothing in FISA can be read to create such a cause of
action.”). It can’t be the case that § 1806(f) is triggered by a
request for substantive relief that FISA itself does not
contemplate.13


    13
       The concurrence makes much ado over § 1810, which authorizes
a cause of action for FISA violations. But the fact that the privilege
“could” lead to a dismissal of a § 1810 suit, Concurrence at 113–114, is
largely irrelevant. The same is true of any other cause of action. And just
because claims could be dismissed after a valid privilege assertion doesn’t
                        FAZAGA V. WALLS                            143

     Finally, this clause must be read in context of FISA’s
single remedy after § 1806(f) review—the “suppress[ion of]
the evidence” or “otherwise grant[ing] the motion of the
aggrieved person.” § 1806(g) (emphasis added). Thus, these
motions and requests, however styled, all lead down the same
road—suppression of evidence, or relief in aid of that
remedy. Cf. James v. United States, 550 U.S. 192, 218
(2007) (Scalia, J., dissenting) (recognizing that “‘otherwise’
is defined as ‘[i]n a different manner’ or ‘in another way,’” so
the use of the word signals other ways of doing something of
the same character as what preceded it). As the heading of
this provision confirms, the district court’s review can result
in either “[s]uppression of evidence” or “denial of motion.”
§ 1806(g) (heading). Thus, whether they’re to “discover,
obtain, or suppress,” these motions and requests only relate
to the ultimate determination of the admissibility of evidence.
Here, plaintiffs have neither a “motion to suppress,” nor any
other motion to “otherwise grant,” should the district court
rule in their favor after the § 1806(f) review. Accordingly,
try as it might, the court can’t jam a square peg into a round
hole. Section 1806(f) doesn’t apply here.

                                 IV.

     The court’s decision today seriously degrades the
Executive’s ability to protect our Nation’s secrets and I fear
it is only a stepping stone to further erosions. By abrogating
the state secrets privilege, we not only upset the balance of
power among co-equal branches of government, but we also


mean all of them will be. Look no further than this very case: the
government did not move to dismiss Plaintiffs’ § 1810 claim based on the
privilege and the claim is going forward (and would’ve gone forward even
without the panel’s abrogation of the privilege).
144                  FAZAGA V. WALLS

do damage to a right inherent in the constitutional design and
acknowledged since our Nation’s founding. And we do so
without clear evidence that this is the result Congress sought.
For these reasons, I respectfully dissent from the denial of
rehearing en banc.
