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Ninth Circuit Revives Case Asserting Muslim Bias by FBI
Opinion Reinstates Claims, Remands for Analysis of Whether Dismissal at Pleading Stage is Mandated by State Secrets Privilege, Announcing ‘Unorthodox’ Procedure for Cases Involving Classified Information
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals announced Friday an “unorthodox” procedure for determining whether claims against the government must be dismissed at the pleading stage based on an assertion of the state secrets privilege, finding that the remedy is only appropriate if the classified materials would establish a “legally meritorious” defense or if the privileged and unprivileged evidence are inseparable.
Balancing the need for the protection of classified information with the rights of a plaintiff to seek redress for constitutional violations, the court announced that, under this unique procedure, a judge is to review, in camera and ex parte, the defendant’s privileged information and the plaintiff is to be given the opportunity to submit actual evidence to prove up a prima facia case and refute the defense.
Saying that such cases do not fit neatly into existing dismissal mechanisms such as Federal Civil Procedure Rule 12(b)(6), where only the pleadings are considered, or summary judgment under Rule 56, as the plaintiff will not have the opportunity to dispute privileged material facts, the court declared:
“[E]ven if not in technical compliance with Rule 56, the practicalities of the situation counsel that both sides must be given an opportunity to offer evidence supporting their positions concerning whether the proffered defense is valid before a court can dismiss a claim because privileged information establishes a valid defense….Unlike in a typical summary judgment, the task of evaluating each party’s evidence and resolving any disputes or inconsistencies to determine whether the defendant has a meritorious defense necessarily falls on the court.”
Illegal Surveillance Alleged
The dispute arose in a case brought by three Orange County Muslim men who accused the FBI of conducting illegal surveillance on them after the Sept. 11, 2001 attacks on the World Trade Center and the Pentagon. Plaintiffs Yassir Fazaga, Ali Uddin Malik, and Yasser Abdelrahim, filed a putative class action complaint against the bureau, in February 2011, after they learned that an FBI informant named Craig Monteilh had been sent to infiltrate their mosque.
They tried to report Monteilh to the FBI after he started asking members of the community about jihad (the fight against enemies of Islam); the reports were purportedly rebuffed. In 2008, Monteilh went public about his role in the FBI’s surveillance of Orange County Muslims.
Fazaga, Malik, and Abdelrahim assert First Amendment violations, as well as other claims, and allege in the operative complaint:
“This case concerns an FBI-paid agent provocateur who, by misrepresenting his identity, infiltrated several mainstream mosques in Southern California, based on the FBI’s instructions that he gather information on Muslims.
“The FBI then used him to indiscriminately collect personal information on hundreds and perhaps thousands of innocent Muslim Americans….Over the course of fourteen months, the agents supervising this informant sent him into various…mosques, and through his surveillance, gathered hundreds of phone numbers, thousands of email addresses, hundreds of hours of video recordings….
“This dragnet investigation did not result in a single conviction related to counterterrorism….”
States Secrets Privilege
Then-U.S. Attorney General Eric Holder invoked the state secrets privilege over three categories of potential information—the identities of the subjects of the investigation, the reasons for the surveillance, and any confidential sources and methods—and moved to dismiss Faraga’s First Amendment claims.
District Court Judge Cormac J. Carney (who has since assumed inactive senior status) dismissed the First Amendment claims without leave to amend.
The Ninth Circuit in 2019 reversed, holding that Carney applied the wrong standard as the Foreign Intelligence Surveillance Act (“FISA”) procedures for challenging electronic surveillance applied in lieu of the state secrets privilege.
In 2022, the U.S. Supreme Court disagreed, saying FISA “does not displace the state secrets privilege.” The high court expressly did not “decide whether the Government’s evidence is privileged or whether the District Court was correct to dismiss respondents’ claims on the pleadings.”
Senior Circuit Judge Marsha S. Berzon wrote Friday’s opinion, on remand from the high court, reversing Carney’s dismissal of the First Amendment claims and remanding to the District Court. Circuit Judge Ronald M. Gould and Senior District Court Judge George Caram Steeh III of the Eastern District of Michigan, sitting by designation, joined in the opinion.
Ninth Circuit View
Berzon noted that the evidentiary privilege is based on the “compelling necessity of government secrecy” to protect national security, and generally requires only that a court apply ordinary evidentiary rules such that the covered information is excluded and the trial goes on without it.
She pointed out that, in the present case, “rather than just seeking exclusion of the assertedly privileged information, the government requested dismissal of the case at the pleading stage, which the district court granted.”
Finding that Holder’s invocation of the privilege was sufficient and that, following careful examination, the three categories of information encompass “at least some” privileged information, the jurist turned to whether the dismissal was warranted.
Exceptional Circumstances
Under state secret jurisprudence, two exceptional circumstances may justify dismissal rather than simple exclusion of evidence. The first circumstance is if the privilege deprives the defendant of information that would otherwise give it a valid defense, and the second applies when it is impossible to proceed with the case because the privileged material is inseparable from the nonprivileged evidence.
As to the first exceptional circumstance, she explained that a “valid defense” is more than simply a plausible one and must require judgment in favor of the defendant. She announced the process for review and said:
“We recognize that the procedure we envision is unorthodox, as it melds summary judgment procedures with an expanded, nontransparent factfinding role for judges. But the alternative is also unorthodox: closing the courthouse door to potentially meritorious lawsuits because of a defense that may or may not be viable once examined. Faced with that dilemma, the procedure we have described is the best option.”
Berzon continued:
“We now consider whether Fazaga’s claims must be dismissed at this juncture because privileged information establishes a valid defense. We conclude that, although at least some of the information at issue is privileged, the district court did not apply the standard we have enunciated, or use the process we have described, when it decided that the case should be dismissed because the government has a ‘valid defense.’ ”
Inseparably Intertwined
As to second exception circumstance, she wrote:
“the district court’s dismissal of Fazaga’s claims on this basis does not meet the stringent standard for such dismissals.”
The jurist declared:
“[T]he district court did not consider all of the potential protective measures or explain why they would not be sufficient to protect the privileged information if litigation were to proceed. The district court referred generally to ‘protective procedures available to the [c]ourt,’ specifically mentioning only ‘protective orders or restrictions on testimony.’ But district courts have other tools to handle sensitive information.”
Saying that “[f]ederal courts have long used in camera review, protective orders, and other procedures to enable judges to review sensitive information,” she added:
“[T]he unusual circumstances of this case particularly counsel against early dismissal….The government revealed Monteilh’s role as a confidential informant in an unrelated…case. It also recognizes that there is substantial relevant nonprivileged evidence that could be…disclosed….”
She made note that Fazaga has declared that, even without discovery, he can put forth sufficient nonprivileged evidence as to Monteilh’s activities to establish a prima facie case.
Under these circumstances, she remarked:
“We are not convinced that the significant amount of nonprivileged information in this case, including information that will be newly available on remand, cannot be disentangled from privileged national security secrets.”
Berzon wrote that “we are convinced that there are concrete possibilities for proceeding in this case” but commented:
“The national security concerns in this case are serious. If it becomes evident that this case cannot be litigated without endangering national security, Fazaga’s private interest will have to yield.”
The case is Fazaga v. FBI, 12-56867.
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