California's 9th Circuit Court Abolishes 4th Amendment

This is just another in a long list of rights we no longer have:

(Thanks to Jack Heart and Dr. B )

A federal appeals court ruled that although illegal and unconstitutional the government can not be punished for violating the Fourth Amendment.

Our beloved federal court judges have signed off again on the erosion of yet another fundamental tenet of the United States Constitution.

This time federal judges ruled the government is completely immune from any possible punishment for violating the Fourth Amendment which is SUPPOSED to protect us against illegal search and seizure.

While fully acknowledging the government’s spying and collecting of personal information using warrantless wiretapping is completely illegal and in violation of the Fourth Amendment the courts have passed the buck saying this is issue for
congress to deal with.

While the ruling explicitly provides immunity to the federal government for illegally searching and seizing information without a warrant the ruling also grants implicit immunity for both state and local law enforcement officials to engage in the same kind of constitution trampling activities.

The judges clearly stated, in short, that yes it illegal for the government to seize and collect information without a warrant as outlawed by the Constitution but if decide to violate that right there isn’t a damn thing you can do about it.

AL-HARAMAIN ISLAMIC FOUNDATION, ü
INC., an Oregon Nonprofit
Corporation; WENDELL BELEW, a
U.S. Citizen and Attorney at Law;
ASIM GHAFOOR, a U.S. Citizen and
Attorney at Law,
Plaintiffs-Appellees,
v.
BARACK H. OBAMA, President of No. 11-15468
the United States, in his official
capacity; NATIONAL SECURITY ý D.C. No. AGENCY; KEITH B. ALEXANDER, 3:07-cv-00109-
Director of NSA, in his official VRW
capacity; OFFICE OF FOREIGN
ASSETS CONTROL, of the US
Department of the Treasury; ADAM
J. SZUBIN, Director of OFAC, in
his official capacity; FEDERAL
BUREAU OF INVESTIGATION; ROBERT
S. MUELLER, III, Director of FBI,
in his official capacity,
Defendants-Appellants. þ
8779
AL-HARAMAIN ISLAMIC FOUNDATION, ü
INC., an Oregon Nonprofit
Corporation,
Plaintiff,
and
WENDELL BELEW, a U.S. Citizen
and Attorney at Law; ASIM
GHAFOOR, a U.S. Citizen and
Attorney at Law,
Plaintiffs-Appellants,
No. 11-15535
v.
D.C. No.
BARACK H. OBAMA, President of ý 3:07-cv-00109- the United States, in his official VRW
capacity; NATIONAL SECURITY
AGENCY; KEITH B. ALEXANDER, OPINION
Director of NSA, in his official
capacity; OFFICE OF FOREIGN
ASSETS CONTROL, of the US
Department of the Treasury; ADAM
J. SZUBIN, Director of OFAC, in
his official capacity; FEDERAL
BUREAU OF INVESTIGATION; ROBERT
S. MUELLER, III, Director of FBI,
in his official capacity,
Defendants-Appellees. þ
Appeal from the United States District Court
for the Northern District of California
Vaughn R. Walker, District Judge, Presiding
Argued and Submitted
June 1, 2012—Pasadena, California
Filed August 7, 2012
8780 AL-HARAMAIN ISLAMIC v. OBAMA
Before: Harry Pregerson, Michael Daly Hawkins, and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge McKeown
AL-HARAMAIN ISLAMIC v. OBAMA 8781
COUNSEL
Douglas N. Letter, United States Department of Justice, Civil
Division, Washington, D.C., for the defendantsappellants/
cross-appellees.
8782 AL-HARAMAIN ISLAMIC v. OBAMA
Jon B. Eisenberg, Eisenberg and Hancock, Oakland, California,
for the plaintiffs-appellees, cross-appellants.
Richard A. Samp, Washington Legal Foundation, Washington,
D.C., for Amici Curiae James J. Carey, Norman T.
Saunders, Thomas L. Hemingway, Washington Legal Foundation,
and The National Defense Committee, for the
defendants-appellants/cross-appellees.
Cindy A. Cohn, Electronic Frontier Foundation, San Francisco,
California, for Amici Curiae The Electronic Frontier
Foundation, The Government Accountability Project, James
Bamford, and Former Intelligence, National Security and Military
Professionals, for the plaintiffs-appellees/crossappellants.

OPINION

McKEOWN, Circuit Judge:

This case, which comes before us a second time, is one of
many related to the United States government’s Terrorist Surveillance
Program, a program that “intercepted international
communications into and out of the United States of persons
alleged to have ties to Al Qaeda and other terrorist networks.”
Al-Haramain Islamic Found. v. Bush (“Al-Haramain I”), 507
F.3d 1190, 1192 (9th Cir. 2007). In the previous appeal, we
determined that “the state secrets privilege d[id] not bar the
very subject matter of th[e] action” and remanded to the district
court to consider, among other issues, whether the Foreign
Intelligence Surveillance Act (FISA) preempts the state
secrets privilege. Id. at 1193. On remand, the district court
held that FISA preempts or displaces the state secrets privilege,
that the government implicitly waived sovereign immunity
for damages under FISA’s civil liability provision, 50
U.S.C. § 1810, and that two of the Al-Haramain plaintiffs
were entitled to statutory damages and attorney’s fees.

AL-HARAMAIN ISLAMIC v. OBAMA 8783

The threshold issue in this appeal is whether the district
court erred in predicating the United States’ liability for
money damages on an implied waiver of sovereign immunity
under § 1810. It is well understood that any waiver of sovereign
immunity must be unequivocally expressed. Section
1810 does not include an explicit waiver of immunity, nor is
it appropriate to imply such a waiver. Consequently, we
reverse the district court’s judgment awarding damages and
attorney’s fees to Al-Haramain under § 1810. We also affirm
the dismissal of Robert Mueller, Director of the FBI, in his
personal capacity.

This case effectively brings to an end the plaintiffs’ ongoing
attempts to hold the Executive Branch responsible for
intercepting telephone conversations without judicial authorization.
However, we cannot let that occur without comment
on the government’s recent, unfortunate argument that the
plaintiffs have somehow engaged in “game-playing.”
In early 2004, the Treasury Department announced an
investigation of Al-Haramain Islamic Foundation, Inc. Then
in late 2004, for the first time publicly alleged links to terrorism
involving Al-Haramain. Also in 2004, the plaintiffs
received a copy of a document from the Office of Foreign
Assets Control (the “Sealed Document”), which may or may
not have suggested certain of the plaintiffs or their lawyers
had been electronically surveilled. In 2005, a New York Times
article revealed that the National Security Agency “had
obtained the cooperation of telecommunications companies to
tap into a significant portion of the companies’ telephone and
e-mail traffic, both domestic and international.”1 Based on
some or all of the above, the plaintiffs thought that they had
been unlawfully surveilled, and in 2006 they filed suit.

1James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without
Courts, N.Y. Times, Dec. 16, 2005, at A1.
8784 AL-HARAMAIN ISLAMIC v. OBAMA

Over the last six years, the plaintiffs have faced a moving
and shrinking target. In 2008, Congress narrowed the list of
potential defendants by granting telecommunications providers
retroactive immunity. See In re Nat’l Sec. Agency Telecomms.

Records Litig., 671 F.3d 881, 891-93 (9th Cir. 2011)
(describing 2008 amendments to FISA). Meanwhile, the evidentiary
arsenal at the plaintiffs’ disposal has been constantly
in flux. On one hand, the Sealed Document was excluded,
pending a determination whether the FISA preempted the
State Secrets privilege in the telecommunications field. See
Al-Haramin I, 507 F.3d 1190. On the other, the public evidence
favorable to the plaintiffs grew to include the FBI
admitting to having used surveillance in connection with its
investigation of Al-Haramain, the Treasury Department
acknowledging it intercepted 2003 telephone conversations
involving an Al-Haramain member, and top Executive Branch
officials testifying before Congress that most modern international
communications are wired.

In light of the complex, ever-evolving nature of this litigation,
and considering the significant infringement on individual
liberties that would occur if the Executive Branch were to
disregard congressionally-mandated procedures for obtaining
judicial authorization of international wiretaps, the charge of
“game-playing” lobbed by the government is as careless as it
is inaccurate. Throughout, the plaintiffs have proposed ways
of advancing their lawsuit without jeopardizing national
security, ultimately going so far as to disclaim any reliance
whatsoever on the Sealed Document. That their suit has ultimately
failed does not in any way call into question the integrity
with which they pursued it.

BACKGROUND

I. AL-HARAMAIN I
In Al-Haramain I, Al-Haramain Islamic Foundation and
two of its lawyers (collectively “Al-Haramain”) “claimed that
AL-HARAMAIN ISLAMIC v. OBAMA 8785
they were subject to warrantless electronic surveillance in
2004 in violation of the Foreign Intelligence Surveillance
Act.” 507 F.3d at 1193. At the core of the allegations stood
“a classified ‘Top Secret’ document (the ‘Sealed Document’)
that the government inadvertently gave to [the Al-Haramain
organization] in 2004 during a proceeding to freeze the organization’s
assets.” Id.

We held that the suit itself was not precluded by the state
secrets privilege, although the privilege protected the Sealed
Document. Id. Without the Sealed Document, the Al-
Haramain organization could not establish that it suffered
injury-in-fact and therefore did not have standing to bring
suit. Id. at 1205. As to the attorney plaintiffs, we remanded to
the district court to consider whether “FISA preempts the
common law state secrets privilege.” Id. at 1193.

II. DISTRICT COURT PROCEEDINGS ON REMAND
On remand, the district court held extensive proceedings
and issued multiple orders on the various remaining legal
issues, including three published decisions. At the outset, the
district court held that “FISA preempts or displaces the state
secrets privilege . . . in cases within the reach of its provisions.”
In re Nat’l Sec. Agency Telecomms. Records Litig.,
564 F. Supp. 2d 1109, 1124 (N.D. Cal. 2008). “This,” the district
court wrote, “is such a case.” Id.

Concluding that § 1810 waives the United States’ sovereign
immunity, the district court denied the government’s motion
to dismiss for lack of jurisdiction. Id. at 1125. The court
acknowledged that “[i]t is, of course true that section 1810
does not contain a waiver of sovereign immunity analogous
to that in 18 U.S.C. section 2712(a) which expressly provides
that the aggrieved persons may sue the United States for
unlawful surveillance . . . .” Id.

However, because “it is only
such [federal] officers and employees acting in their official
capacities that would engage in surveillance of the type con-
8786 AL-HARAMAIN ISLAMIC v. OBAMA
templated by FISA,” the court feared that FISA would offer
“scant, if any, relief” in the absence of a waiver. Id. Thus, it
held that a waiver was “[i]mplicit in the remedy” under
§ 1810. Id.

In light of the Sealed Document, the court ruled it was necessary
for the Al-Haramain plaintiffs to establish they were
“aggrieved parties” under FISA using non-classified information.
The district court dismissed the complaint with leave to
amend the FISA claims, and Al-Haramain filed an amended
complaint. The district court then concluded that “[w]ithout a
doubt” the amended complaint “alleged enough to plead
‘aggrieved person’ status so as to proceed to the next step in
proceedings under FISA’s sections 1806(f) and 1810.” In re
Nat’l Sec. Agency Telecomms. Records Litig., 595 F. Supp. 2d
1077, 1086 (N.D. Cal. 2009). Moving to the merits, in its next
ruling, “the court directed plaintiffs to move for summary
judgment on their FISA claim relying only on non-classified
evidence.” In re Nat’l Sec. Agency Telecomms. Records Litig.,
700 F. Supp. 2d 1182, 1192 (N.D. Cal. 2010). Al-Haramain
did so and the government filed a cross-motion to dismiss and
for summary judgment. The court denied the government’s
motion to dismiss for lack of jurisdiction, rejecting the argument
that Al-Haramain lacked standing because the program
under which it was surveilled had been terminated, and once
again holding that § 1810 waived the United States’ sovereign
immunity. Id. at 1192-93.

On the merits, the district court granted summary judgment
in favor of Al-Haramain with respect to governmental liability
under FISA. Id. at 1202. Al-Haramain then accepted the
court’s invitation to voluntarily dismiss the remaining claims
“in order to take the steps necessary for the entry of judgment
on the FISA claim.” Id. at 1203. The district court also dismissed
claims against FBI Director Robert Mueller in his
individual capacity. Id.

In a follow-up order on remedies, the court first denied
damages to the Al-Haramain organization because it was a
AL-HARAMAIN ISLAMIC v. OBAMA 8787
“foreign power or an agent of a foreign power” under FISA’s
broad definition of that term, and therefore ineligible to
recover damages under the statute. 50 U.S.C. § 1810. The two
individual plaintiffs did not seek actual damages but were
awarded liquidated damages of $20,400 each. The district
court denied punitive damages and equitable relief. Finally,
the court awarded the requested $2,515,387.09 in attorney’s
fees and $22,012.36 in costs. See 50 U.S.C. § 1810.

ANALYSIS

I. SOVEREIGN IMMUNITY

The key and dispositive issue on appeal is whether the government
waived sovereign immunity under FISA’s civil liability
provision,2 50 U.S.C. § 1810. Contrary to the district
court’s reliance on implied waiver, “[a] waiver of sovereign
immunity cannot be implied but must be unequivocally
expressed.” United States v. Mitchell, 445 U.S. 535, 538
(1980) (internal quotation marks omitted).

We have the benefit of the Supreme Court’s most recent
pronouncement in this area. Earlier this year, the Court interpreted
the waiver provision of the Privacy Act of 1974,
which, like FISA, protects individuals against the government’s
collection, use, and disclosure of information. FAA v.
Cooper, 132 S.Ct. 1441, 1448 (2012). According to the Privacy
Act, “the United States shall be liable to [an] individual
in an amount equal to the sum of . . . actual damages.” 5

2“[S]overeign immunity is a limitation on the district court’s subject
matter jurisdiction.” Adam v. Norton, 636 F.3d 1190, 1192 n.2 (9th Cir.
2011). In light of our decision on sovereign immunity, we need not
address the constitutional and prudential standing issues, nor the question
of statutory standing, namely whether Al-Haramain meets the “aggrieved
person” requirement of 50 U.S.C. § 1810. See Sinochem Int’l Co. v.
Malay. Int’l Shipping Corp., 549 U.S. 422, 431 (2007) (A “federal court
has leeway to choose among threshold grounds for denying audience to a
case on the merits.” (internal quotation marks omitted)).

8788 AL-HARAMAIN ISLAMIC v. OBAMA

U.S.C. § 552a(g)(4)(A). In determining that the scope of the
immunity waiver “[did] not unequivocally authorize an award
of damages for mental or emotional distress,” Cooper, 132
S.Ct. at 1456, the Court reiterated the standard for sovereign
immunity: “What we thus require is that the scope of Congress’
waiver be clearly discernable from the statutory text in
light of traditional interpretive tools. If it is not, then we take
the interpretation most favorable to the Government.” Id. at
1448.

[1] In light of these principles we now consider § 1810,
which was the basis on which the district court ordered relief
and the section relied on by Al-Haramain. At oral argument,
Al-Haramain confirmed that it was not proceeding under
other sections of FISA. Al-Haramain argues that, as a result
of purported illegal surveillance, it may bring a claim against
the United States under § 1810, which states:
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 . . . .

A “person” who may have committed the violation is defined
as “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). Glaringly
missing from the definition is the “United States.” An offense
under § 1810 is predicated on a violation of § 1809, a criminal
provision, which provides that:
(a) A person is guilty of an offense if he intentionally
(1) engages in electronic surveillance . . . except as
authorized by . . . any express statutory authorization
. . .
AL-HARAMAIN ISLAMIC v. OBAMA 8789

(2) discloses or uses information obtained under
color of law by electronic surveillance, knowing or
having reason to know that the information was
obtained through electronic surveillance not authorized
by . . . express statutory authorization . . . .
. . .

(d) There is Federal jurisdiction . . . if the person
committing the offense was an officer or employee
of the United States at the time the offense was committed.
In considering whether § 1810 encompasses a waiver of
sovereign immunity, it is useful to benchmark the statutory
language against other explicit waivers of sovereign immunity.
The Federal Tort Claims Act provides the most prominent
example: “The United States [is] liable . . . in the same
manner and to the same extent as a private individual under
like circumstances.” 28 U.S.C. § 2674(b).

However, Congress
has used similarly explicit waiver provisions in other contexts.
See, e.g., 42 U.S.C. § 2000e-5(k) (“In any action or proceeding
under this subchapter . . . the United States shall be
liable for costs the same as a private person.”) (unlawful
employment practices); 46 U.S.C. § 30903(a) (“[A] civil
action in admiralty in personam may be brought against the
United States.”); 26 U.S.C. § 7433(a) (“If . . . any officer or
employee of the Internal Revenue Service . . . disregards any
provision of this title . . . [a] taxpayer may bring a civil action
for damages against the United States.”).

[2] We need not comb the United States Code for disparate
examples of sovereign immunity waivers; such examples are
available closer to home within FISA. Congress included
explicit waivers with respect to certain sections of FISA as
part of the USA PATRIOT Act, 18 U.S.C. § 2712(a), which
states in relevant part:

8790 AL-HARAMAIN ISLAMIC v. OBAMA

Any person who is aggrieved by any willful violation
of . . . sections 106(a), 305(a), or 405(a) of the
Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.) may commence an action in
United States District Court against the United States
to recover money damages.3

This section underscores the importance of considering the
statutory scheme as a whole. See Food & Drug Admin. v.
Brown & Williamson Tobacco Corp., 529 U.S. 120, 133
(2000) (“It is a fundamental canon of statutory construction
that the words of a statute must be read in their context and
with a view to their place in the overall statutory scheme.”
(internal quotation marks omitted)).

Congress well understoodhow to express a sovereign immunity waiver in the context of
FISA. Admittedly, magic words, such as “an action against
the United States,” are not required to deduce a waiver of sovereign
immunity. In certain circumstances, the Supreme Court
has determined the existence of a waiver, by using “the other
traditional tools of statutory construction.” Richlin Sec. Serv.
Co. v. Chertoff, 553 U.S. 571, 589 (2008).

Nonetheless, contrastedagainst other provisions deemed sufficient to invoke
waiver, the lack of an explicit waiver in § 1810 is stark, permitting
suit only against a “person,” without listing the
“United States.” Just as the term “damages” was deemed
ambiguous and thus limited sovereign immunity under the
Privacy Act, Cooper, 132 S.Ct at 1456, so too is the term
“person” ambiguous vis-a-vis governmental liability. Because
there “is a plausible interpretation of the statute that would not
allow money damages against the government,” any ambiguity
is construed “in favor of the sovereign.” Id. at 1444, 1448.

3These sections of FISA correspond to 50 U.S.C. § 1806(a)
(“Information acquired from an electronic surveillance . . . may be used
and disclosed by Federal officers and employees . . . only in accordance
with the minimization procedures required by this subchapter.”); § 1825(a)
(information acquired as a result of a physical search); § 1845(a) (information
collected through “the use of a pen register or trap and trace device”).

AL-HARAMAIN ISLAMIC v. OBAMA 8791

Although our decision is grounded solely in the text of the
statute itself, the legislative history surrounding 18 U.S.C.
§ 2712(a) further “confirms what we have concluded from the
text alone.” Mohamad v. Palestinian Auth., 132 S.Ct. 1702,
1710 (2012); see Levin v. United States, 663 F.3d 1059, 1063
(9th Cir. 2011) (considering legislative history to confirm that
the Gonzales Act does not waive sovereign immunity).
Because FISA did not, on its own terms, waive sovereign
immunity, an initial version of the PATRIOT Act proposed a
sovereign immunity waiver for violations of § 1810. See H.R.
Rep. No. 107-236, at 12-13, 42 (2001) (proposing to amend
§ 1810 to provide a remedy for its violation under the Federal
Tort Claims Act). This proposed amendment to § 1810 was
deleted the very next day; instead, a waiver of sovereign
immunity was incorporated into 18 U.S.C. § 2712. While
§ 2712 creates United States liability for certain FISA violations
such as those of 50 U.S.C. § 1806, it does not include
claims under § 1810.4 Thus, our conclusion is consistent with
congressional consideration and later rejection of an immunity
waiver for violations of § 1810.

[3] Contrasting § 1810 liability, for which sovereign
immunity is not explicitly waived, with § 1806 liability, for
which it is, also illuminates congressional purpose. Liability
under the two sections, while similar in its reach, is not identical.
Section 1806, combined with 18 U.S.C. § 2712, renders
the United States liable only for the “use[ ] and disclos[ure]”
of information “by Federal officers and employees” in an
unlawful manner. Section 1810, by contrast, also creates liability
for the actual collection of the information in the first
place, targeting “electronic surveillance or . . . disclos[ure] or
use[ ]” of that information. (emphasis added). Under this
scheme, Al-Haramain can bring a suit for damages against the
4Al-Haramain argues that since 50 U.S.C. § 1810, unlike 18 U.S.C.
§ 2520, does not specifically state that the United States is exempt from
suit, immunity is waived. This improperly turns the presumption against
waiver on its head.

8792 AL-HARAMAIN ISLAMIC v. OBAMA

United States for use of the collected information, but cannot
bring suit against the government for collection of the information
itself. Cf. ACLU v. NSA, 493 F.3d 644, 671 (6th Cir.
2007) (Lead Opinion of Batchelder, J.) (noting that FISA
potentially allows limitless information collection upon issuance
of warrant, but limits use and dissemination of information
under, inter alia, § 1806(a)). Although such a structure
may seem anomalous and even unfair, the policy judgment is
one for Congress, not the courts. Also, because governmental
liability remains under § 1806, the district court’s concern that
FISA relief would become a dead letter is not valid. See In re
Nat’l Sec. Agency Telecomms. Records Litig., 564 F. Supp. 2d
at 1125.

Consistent with the congressional scheme, unlike 50 U.S.C.
§§ 1806, 1825 and 1845, § 1810 has not been incorporated
into the waiver of sovereign immunity in 18 U.S.C. § 2712,
or elsewhere. Nor does liability under § 1810 come with the
procedures that accompany such actions against the United
States. Section 2712(b) sets out detailed procedures by which
a claim may be filed against the United States, referring to
Federal Tort Claims Act requirements, as well as to FISA.
Paragraph (b)(4) states:

Notwithstanding any other provision of law, the procedures
set forth in section 106(f), 305(g), or 405(f)
of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.) shall be the exclusive means
by which materials governed by those sections may
be reviewed.

Subsection (f) sets out in camera and ex parte procedures—
suit against the United States can only proceed with these protections.
It would be anomalous to the point of absurdity for
Congress, on one hand, to carefully and explicitly waive sovereign
immunity with respect to certain FISA sections, set out
detailed procedures for suits pursuant to that waiver, and then
AL-HARAMAIN ISLAMIC v. OBAMA 8793
on the other, cavalierly imply a sovereign immunity waiver
with respect to § 1810 by rendering liable any “person.”
Al-Haramain reads volumes into the definition of a “person.”
Section 1801(m) defines “person” to mean “any individual,
including any officer or employee of the Federal
Government.”

That section is then incorporated into § 1810,
which renders “any person” subject to suit for unlawful surveillance.
Although the government urges that “person”
applies to federal employees in only their personal capacities,
Al-Haramain argues that if § 1801 stripped federal employees
of immunity in only their personal capacities, it would be
redundant: the term “individual” already covers employees in
their personal capacities.

Therefore, according to Al-Haramain, § 1801’s reference to federal employees must target
employees in their official capacities for money damages,
which is tantamount to a waiver of sovereign immunity.
Al-Haramain’s interpretation of the term “person” is problematic
both in the context of § 1810 and the statute as a
whole. Subsection 1801(m) is a definitional provision, in
which “person” is defined to include both “individuals” and,
more specifically, “employees and officers of the Federal
Government.” The provision does not impose liability on its
own terms, and is therefore not concerned with personal versus
official liability.

That this definitional phrase is notdirected to the individual’s capacity becomes clear when
looking at the statute as a whole. The term “person” is used
in multiple locations within FISA to refer to a multitude of
entities: potential plaintiffs, defendants, and even third parties.
Inserting that definition in various appropriate subsections
demonstrates that the definitional section is not targeted to the
issue of personal versus official capacity, nor can such capacity
be inferred. For example, § 1802(a)(1)(B), which speaks to
surveillance without a warrant, excludes “communications to
which a United States person is a party.” Applications for
court orders reference “the persons, facilities, or places specified
on the application.” 50 U.S.C. § 1804(a)(4). In certain sit-

8794 AL-HARAMAIN ISLAMIC v. OBAMA

uations the Attorney General must consider the “threat of
death or serious bodily harm to any person.” Id. § 1806(i).
Similarly, the term is used throughout in reference to “aggrieved
person.” See, e.g., § 1806(d); § 1810.

Thus, Al-Haramain’s redundancy argument cannot seriously
be that, as to sovereign immunity, the government’s
interpretation would render the text of § 1801(m) redundant in
its own right; rather, the claim is that the text of § 1801(m)
becomes redundant when incorporated into § 1810. Al-
Haramain would therefore require Congress to foresee and
prevent redundancy upon incorporation of § 1801, a general
definitional section, into § 1810. In light of the multitudinous
contexts in which the term “person” is used, this turducken
approach takes the presumption against redundancy too far.
If Congress shared Al-Haramain’s aversion to the potential
redundancy of the term “employees and officers of the federal
government,” its behavior with respect to other sections of the
statute is inexplicable. Section 1806 directly addresses the
actions of “Federal officers or employees” without the intercession
of § 1801(m). Nonetheless, 18 U.S.C. § 2712 is not
content with providing only a cause of action under § 1806;
rather, it also and explicitly waives sovereign immunity. This
structure strongly points to the conclusion that the reference
to “Federal officers or employees” in § 1806—and certainly
in § 1810 via § 1801(m)—does not, by itself, waive sovereign
immunity.5

5Al-Haramain also notes that courts have inferred a sovereign immunity
waiver in Title VII because the statute renders department heads liable; it
contends that the reference to federal employees in FISA is analogous to
Title VII’s reference to heads of departments. Brown v. General Services
Administration, upon which Al-Haramain relies, concerns administrative
exhaustion requirements and does not address sovereign immunity. 425
U.S. 820, 831-33 (1976). Later Supreme Court precedent directly undermines
Al-Haramain’s argument. See Lane v. Peña, 518 U.S. 187, 193-95
(1996) (declining to read a liability provision pertaining to “Federal provider[
s] of . . . assistance” as broadly waiving governmental immunity).

AL-HARAMAIN ISLAMIC v. OBAMA 8795

Apart from the absence of an explicit grant of sovereign
immunity and the stark contrast between § 1810 and other
FISA provisions, the relationship between § 1809 and § 1810
further supports our conclusion. Section 1810 liability is
premised upon a “violation of section 1809.” In turn, a violation
of § 1809 is a criminal offense, and occurs when “[a] person
intentionally . . . engages in electronic surveillance under
color of law” in a manner that violates certain statutory provisions.
[4] In other words, to be liable under § 1809 and § 1810,
a “person” must be subject to criminal prosecution. Accordingly,
to accept Al-Haramain’s argument that § 1810 allows
proceeding against a government employee in his official
capacity, we must also suppose that a criminal prosecution
may be maintained against an office, rather than an individual,
under § 1809. This is unprecedented. We do not deny, as
Al-Haramain argues, that there is precedent for prosecuting
employees as individuals for actions taken in their official
capacities. See generally Maryland v. Soper, 270 U.S. 9
(1926); Tennessee v. Davis, 100 U.S. 257 (1879); Seth P.
Waxman & Trevor W. Morrison, What Kind of Immunity?
Federal Officers, State Criminal Law, and the Supremacy
Clause, 112 Yale L.J. 2195 (2003). However, imposing criminal
penalties against an office for actions of the officeholder
is a different ball game: just as an officeholder is nominally
replaced by his successor in a civil “official capacity suit” as
a defendant, under Al-Haramain’s interpretation, a successor
in office could be criminally prosecuted for actions of his predecessor.
Such an approach is “patently absurd.” United
States v. Singleton, 165 F.3d 1297, 1299-1300 (10th Cir.
1999) (statute criminalizing the offer of a reward in exchange
for testimony could not extend to the United States or an
employee in her official capacity). Therefore, we do not interpret
the reference to “person” in § 1810 to mean that a government
employee is liable in his official capacity. See also
United States v. Cooper Corp., 312 U.S. 600, 604 (1941) (not-

8796 AL-HARAMAIN ISLAMIC v. OBAMA

ing in a criminal antitrust action that “in common usage, the
term ‘person’ does not include the sovereign”).
[5] Congress can and did waive sovereign immunity with
respect to violations for which it wished to render the United
States liable. It deliberately did not waive immunity with
respect to § 1810, and the district court erred by imputing an
implied waiver. Al Haramain’s suit for damages against the
United States may not proceed under § 1810.

II. PERSONAL LIABILITY OF FBI DIRECTOR MUELLER
During the many years this case was litigated in the district
court, Al-Haramain’s suit against FBI Director Mueller in his
individual capacity was nothing more than a sideshow, overshadowed
by the core claims against the government. Al-
Haramain never vigorously pursued its claims against Mueller.
Rather, in a hearing at the district court, Al-Haramain
emphasized that “we believe Mr. Mueller is a corollary we
needn’t get to.” In re Nat’l Sec. Agency Telecomms. Records
Litig., 700 F. Supp. 2d at 1203. When the district court finally
reached the issue of Mueller’s individual liability, it noted that
Mueller was “the only defendant against whom plaintiffs seek
to proceed in an individual capacity.” Id.

The district courtthen dismissed, without leave to amend, all claims against
Mueller in his individual capacity because “the nature of the
wrongdoing by governmental actors alleged and established
herein is official rather than individual or personal.” Id.
[6] Al-Haramain’s bare-bones allegations against Mueller
are insufficient to survive summary judgment. The allegations,
in their entirety, consist of two simple statements:
Mueller “threatened to resign because of concerns about the
legality of the warrantless surveillance program;” and “Mueller
testified before the House Judiciary Committee that in
2004 the FBI, under his direction, undertook activity using
information produced by the NSA through the warrantless
surveillance program.” These allegations do not appropriately

AL-HARAMAIN ISLAMIC v. OBAMA 8797

allege a claim under FISA. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (“[A] complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.” (internal quotations and citations omitted)).
Al-Haramain’s allegations against Mueller are significantly
less concrete than those found insufficient in Iqbal. See
id. at 680-81. The district court recognized that Al-Haramain
could not bring forth additional allegations that might breathe
life into the otherwise deficient claim against Mueller. On
appeal, Al-Haramain does nothing to dispel that conclusion.
The district court did not abuse its discretion in dismissing the
claims against Mueller without leave to amend.

CONCLUSION

[7] Because there is no explicit waiver of sovereign immunity,
we reverse the district court’s determination that § 1810
waives sovereign immunity. As a consequence, we vacate the
judgment in favor of Al-Haramain, including the judgment for
liquidated damages, attorney’s fees, and costs. We affirm the
dismissal of claims against Mueller in his individual capacity.

AFFIRMED IN PART, REVERSED IN PART, AND
JUDGMENT VACATED. The parties shall bear their own
costs on appeal.