Fazaga v. Federal Bureau of Investigation

On appeal regarding defendants’ motion to dismiss Muslim plaintiffs’ claims regarding illegal electronic surveillance by an FBI managed informant, court rules: plaintiffs had no reasonable expectation of privacy in conversations with government agent that were recorded; plaintiffs had reasonable expectation of privacy in conversations in mosque prayer hall when informant was not present, but defendants were entitled to qualified immunity for taping conversations because as of 2006 and 2007 no federal or state court had held that individuals generally have a reasonable expectation of privacy from surveillance in a house of worship; plaintiffs had reasonable expectation of privacy from covert recordings of conversations in their homes, cars, offices, and on their phones and properly pleaded a claim under FISA for recording such conversations; with respect to plaintiffs’ claims under First Amendment Establishment and Free Exercise Clauses, the Religious Freedom Restoration Act, the Equal Protection Clause of the Fifth Amendment, the Privacy Act, and the Tort Claims Act, the Appeals Court held that the District Court erred in dismissing the claims based on the state secrets privilege, but should have relied on FISA’s alternative procedures for handling sensitive national security information; plaintiffs were entitled to seek expungement of records to remedy constitutional violations; the Privacy Act and RFRA function as an alternative remedial scheme for some, but not all, of the interests plaintiffs sought to vindicate via First and Fifth Amendment Bivens claims; on remand district court must decide under Abbasi whether a Bivens remedy is available for claims not reached by the Privacy Act and RFRA; agent defendants were entitled to qualified immunity on conspiracy claims because intracorporate liability was not clearly established at the time of events in this case; it was not clearly established in 2006 or 2007 that covert surveillance conducted on the basis of religion would meet RFRA standards for constituting a substantial religious burden on individual congregants, therefore claims against individual agents must be dismissed, but claims against government defendants may go forward; plaintiffs request for injunctive relief ordering destruction or return of unlawfully obtained information is not a remedy permitted by the Privacy Act; Appeals Court is unable to determine whether discretionary function exemption precludes FTCA claims at this stage of the litigation; on remand, the District Court should use FISA’s § 1806(f) provisions to determine whether the electronic surveillance was lawfully authorized and conducted and to resolve state secrets issues and if that does not resolve all issues, the government may interpose a specifically tailored, properly raised state secrets privilege defense.