Nos. 11-15468 & 11-15535electronic surveillance under the TSP in violation of 50 U.S.C. § 1810. The...
Transcript of Nos. 11-15468 & 11-15535electronic surveillance under the TSP in violation of 50 U.S.C. § 1810. The...
Nos. 11-15468 & 11-15535
IN THE
UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT
AL-HARAMAIN ISLAMIC FOUNDATION, INC., et al.,
Plaintiffs, Appellees and Cross-Appellants,
vs.
BARACK H. OBAMA, President of the United States, et al.,
Defendants, Appellants and Cross-Appellees.
PETITION FOR PANEL REHEARINGAND FOR REHEARING EN BANC
JON B. EISENBERG (CSB NO. 88278)1970 BROADWAY, SUITE 1200OAKLAND, CALIFORNIA 94612
(510) 452-2581 • FAX: (510) 452-3277
STEVEN GOLDBERG (OSB NO. 75134)
RIVER PARK CENTER, SUITE 300205 SE SPOKANE STREET
PORTLAND, OREGON 97202(503) 445-4622 • FAX: (503) 238-7501
THOMAS H. NELSON (OSB NO. 78315 )P.O. BOX 1211
20820 E. GLACIER VIEW ROAD
WELCHES, OREGON 97049(503) 662-3123 • FAX: (503) 622-1438
J. ASHLEE ALBIES (OSB NO.05184)
CREIGHTON & ROSE, PC815 S.W. SECOND AVE., SUITE 500
PORTLAND, OREGON 97204(503) 221-1792 • FAX: (503) 223-1516
ZAHA S. HASSAN (CSB NO. 184696)P.O. BOX 1168
LAKE OSWEGO, OREGON 97034(360) 213-9737 • FAX: (866) 399-5575
LISA R. JASKOL (CSB NO. 138769)
610 S. ARDMORE AVENUE
LOS ANGELES, CALIFORNIA 90005(213) 385-2977 • FAX: (213) 385-9089
ATTORNEYS FOR PLAINTIFFS, APPELLEES AND CROSS-APPELLANTS
WENDELL BELEW and ASIM GHAFOOR
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TABLE OF CONTENTSPage
TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
INTRODUCTION AND STATEMENT OF COUNSEL. . . . . . . . . . . . . . . . . . . . . 1
BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
I. PETITION FOR PANEL REHEARING. . . . . . . . . . . . . . . . . . . . . . . 6
A. The Panel’s Opinion Misapprehends the Scope of 50U.S.C. § 1806(a), Which Does Not Provide a Cause ofAction for Use of Information Acquired By UnlawfulElectronic Surveillance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
B. The Panel’s Opinion Overlooks Plaintiffs’ Argument thatFISA Waives Sovereign Immunity by AuthorizingAction Against an “Entity,” Which Includes GovernmentEntities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
C. The Panel’s Opinion, in Addressing Plaintiffs’ Analogy tothe Waiver of Sovereign Immunity in Title VII, OverlooksTwo Cited Circuit Court Decisions Finding Such WaiverWithout Specification of the “United States” . . . . . . . . . . . . . 10
D. The Panel’s Opinion Misapprehends the LegislativeHistory of 18 U.S.C. § 2712, Which Only Indicates Intentto Reject the Addition of an Administrative Claim-FilingRequirement to 50 U.S.C. § 1810. . . . . . . . . . . . . . . . . . . . . . 11
E. The Panel’s Opinion Overlooks the Additional Facts thatPlaintiffs Would Allege Against Defendant Mueller IfGiven Leave to Amend.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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II. PETITION FOR REHEARING EN BANC. . . . . . . . . . . . . . . . . . . . 15
A. This Proceeding Involves a Question of ExceptionalImportance to the Nation: Whether the Executive BranchIs Immune From Civil Liability For WarrantlessWiretapping in Violation of FISA .. . . . . . . . . . . . . . . . . . . . . 15
B. The Panel’s Decision Conflicts With Two Decisions By theSame Panel in 2011. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
CERTIFICATION OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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TABLE OF AUTHORITIES
PageCases
Adams v. City of Battle Creek 250 F.3d 980 (6th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Al-Haramain Islamic Foundation, Inc. v. Bush (“Al-Haramain I”) 507 F.3d 1190 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4
In re Nat’l Sec. Agency Telecomms. Records Litig. (“Hepting”)671 F.3d 881 (9th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 17
In re Nat’l Sec. Agency Telecomms. Records Litig.564 F. Supp. 2d 1109 (N.D. Cal. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
In re Nat’l Sec. Agency Telecomms. Records Litig. 700 F. Supp. 2d 1182 (N.D. Cal. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Jewel v. National Security Agency673 F.3d 902 (9th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 14, 17
Morongo Band of Mission Indians v. California State Board of Equalization 858 F.2d 1376 (9th Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Organizacion JD Ltda. v. U.S. Dep’t of Justice 18 F.3d 91 (2d Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
Rochon v. Gonzales 438 F.3d 1211 (D.C. Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10, 11
Salazar v. Heckler 787 F.2d 527 (10th Cir. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
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Statutes and Rules
18 U.S.C. § 2510 et seq.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
18 U.S.C. § 2712(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 11
28 U.S.C. § 2675. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
42 U.S.C. § 2000(e)-16(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
50 U.S.C. § 1801(m). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11
50 U.S.C. § 1806(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
50 U.S.C. § 1810. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
FRAP 35(b)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 18
FRAP 35(b)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 15
FRAP 40(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Legislative History
H.R. REP. No. 107-236, § 161(d) (2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
S. REP. 110-209 at 8 (2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
154 CONG. REC. 112, at S6470 (daily ed. July 9, 2008). . . . . . . . . . . . . . . . . . . . . 18
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Miscellaneous
Offices of Inspectors General’s Unclassified Reporton the President’s Surveillance Program. . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Charlie Savage, Barack Obama’s Q&A, BOSTON GLOBE (Dec. 20, 2007). . . . . . 15
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INTRODUCTION AND STATEMENT OF COUNSEL
Plaintiffs commenced this action, challenging the legality of President George
W. Bush’s so-called Terrorist Surveillance Program (TSP), to obtain a judicial
pronouncement that warrantless wiretapping by the federal government in violation
of the Foreign Intelligence Surveillance Act of 1978 (FISA) is unlawful. Instead, the
panel’s decision—finding sovereign immunity for such unlawful conduct—proclaims
that the government can get away with it. Whether the federal government can
violate FISA with impunity is a question of exceptional importance to the Nation,
warranting a rehearing en banc. See FRAP 35(b)(1)(B).
Additionally, the panel’s decision conflicts with two prior decisions by the
same panel in 2011. See In re Nat’l Sec. Agency Telecomms. Records Litig.
(“Hepting”), 671 F.3d 881, 899 (9th Cir. 2011); Jewel v. National Security Agency,
673 F.3d 902, 912 (9th Cir. 2011). In those prior decisions, the panel stated that
although the FISA Amendments Act of 2008 (FAA) granted retroactive immunity to
the telecommunications carriers that participated in the TSP, the plaintiffs could still
sue the government actors and entities who perpetrated the wiretapping. Now, the
panel holds that victims of warrantless wiretapping cannot sue the government
perpetrators. En banc consideration is necessary to secure and maintain uniformity
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of this Court’s decisions—here, uniformity of multiple decisions by the same panel.
See FRAP 35(b)(1)(A).
Finally, the panel’s opinion misapprehends or overlooks several points of law
and fact. See FRAP 40(a)(2). Most prominently, in finding that 50 U.S.C. § 1810
does not waive sovereign immunity for collection of information by warrantless
electronic surveillance in violation of FISA, the opinion relies on a mistaken
determination that, in contrast, 50 U.S.C. § 1806(a) authorizes a civil cause of action
(for which sovereign immunity is waived) for the use of information collected by
unlawful electronic surveillance. In actuality, § 1806(a) applies only to the unlawful
use or disclosure of information that was lawfully collected pursuant to the provisions
of FISA—which means § 1806(a) does not authorize a cause of action for the use of
information that was unlawfully collected in violation of FISA, as occurred here.
The phrase in § 1806(a) that restricts the statute’s scope is omitted from the
panel’s quotation of § 1806(a) by means of an ellipsis. See slip op. at 8791 n.3. The
opinion thus relies on a misreading of § 1806(a) to hold that the federal government
can violate FISA’s warrant requirement with impunity.
In counsel’s judgment, grounds exist for a panel rehearing because the panel
has overlooked or misapprehended points of law and fact, FRAP 40(a)(2); and
grounds exist for a rehearing en banc because the panel’s decision conflicts with prior
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decisions by the same panel, FRAP 35(b)(1)(A), and the proceeding involves a
question of exceptional importance, FRAP 35(b)(1)(B).
BACKGROUND
Al-Haramain Islamic Foundation, Inc., and two of its lawyers, Wendell Belew
and Asim Ghafoor, filed this lawsuit on February 28, 2006, alleging warrantless
electronic surveillance under the TSP in violation of 50 U.S.C. § 1810. The
defendants promptly asserted the state secrets privilege. After the district judge ruled
that plaintiffs’ counsel would be permitted to demonstrate Article III standing with
in camera affidavits describing their memories of a top-secret document, defendants
took an interlocutory appeal to this Court. Al-Haramain Islamic Foundation, Inc. v.
Bush (“Al-Haramain I”), 507 F.3d 1190 (9th Cir. 2007).
On the interlocutory appeal in Al-Haramain I, defendants asserted sovereign
immunity as well as the state secrets privilege, and the parties fully briefed the
question of sovereign immunity. See Brief For Appellants in Al-Haramain I at 36-37;
Brief of Appellees in Al-Haramain I at 38-41; Reply Brief for Appellants in Al-
Haramain I at 15-17. This Court reversed the district judge’s ruling—not because
of sovereign immunity, but because the ruling had amounted to an improper “back
door around” the state secrets privilege. Al-Haramain I, 507 F.3d at 1193. This
Court’s opinion in Al-Haramain I did not address the question of sovereign
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During oral argument in the present appeal (Al-Haramain II) on June 1, 2012,1/
Judge McKeown indicated she was unaware that the sovereign immunity issue hadbeen before the panel in Al-Haramain I, stating “we did not have the sovereignimmunity issue on the table” in 2007. Plaintiffs’ initial brief in the present appeal,however, had advised the Court that “[d]efendants had previously asserted sovereignimmunity in their 2007 briefing on the interlocutory appeal, but this Court’s 2007opinion did not address the point.” Brief of Appellees and Cross-Appellants in Al-Haramain II at 16 n.4.
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immunity, even though it had been fully briefed. Instead, the Court remanded the1/
case to the district judge for further proceedings to determine whether FISA preempts
the state secrets privilege. Id. at 1206.
Five more years of litigation ensued (consuming some 3,000 more hours of
time by plaintiffs’ attorneys). The district judge rejected the claim of sovereign
immunity and held that FISA preempts the state secrets privilege. In re Nat’l Sec.
Agency Telecomms. Records Litig., 564 F. Supp. 2d 1109, 1124-25 (N.D. Cal. 2008).
Plaintiffs abandoned their reliance on the top-secret document and presented non-
classified evidence to demonstrate their Article III standing and defendants’ liability
under 50 U.S.C. § 1810. The district judge granted summary judgment for plaintiffs.
In re Nat’l Sec. Agency Telecomms. Records Litig., 700 F. Supp. 2d 1182, 1202 (N.D.
Cal. 2010). The judge dismissed, without leave to amend, a claim against one of the
defendants, FBI Director Robert Mueller, in his individual capacity. Id. at 1203. The
judge subsequently awarded statutory liquidated damages of $20,400 each to Belew
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The panel’s decision in Al-Haramain II misapprehends the nature of the award,2/
stating “we reverse the district court’s judgment awarding damages and attorney’sfees to Al-Haramain under § 1810.” Slip op. at 8784 (emphasis added). In fact, theaward was only to Belew and Ghafoor. The district judge awarded no damages, feesor costs to Al-Haramain, see ER 17-18, and Al-Haramain did not appeal.
The panel’s finding of sovereign immunity in Al-Haramain II makes the3/
panel’s decision in Al-Haramain I a nullity. See Morongo Band of Mission Indiansv. California State Board of Equalization, 858 F.2d 1376, 1381 (9th Cir. 1988)(absent subject-matter jurisdiction, court lacks power to do anything other thandismiss the case).
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and Ghafoor, plus their attorney’s fees and costs in the sum of $2,515,387. ER 17,
49.2/
Defendants appealed, challenging the district judge’s rulings on sovereign
immunity, FISA preemption, liability and damages. Belew and Ghafoor cross-
appealed, challenging the ruling as to Mueller in his individual capacity.
The panel’s decision—Al-Haramain II—reverses the district judge’s ruling on
sovereign immunity, holding that § 1810 “does not include an explicit waiver of
immunity.” Slip op. at 8784. The decision affirms the dismissal of the claim against3/
Mueller individually without leave to amend. Id. at 8798. The decision does not
address the other issues presented. See id. at 8788 n.2. In the panel’s words, the
decision “effectively brings to an end the plaintiffs’ ongoing attempts to hold the
Executive Branch responsible for intercepting telephone conversations without
judicial authorization.” Id. at 8784.
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ARGUMENT
I. PETITION FOR PANEL REHEARING
A. The Panel’s Opinion Misapprehends the Scope of 50U.S.C. § 1806(a), Which Does Not Provide a Cause ofAction For Use of Information Acquired By UnlawfulElectronic Surveillance.
The centerpiece of the panel’s opinion is a determination that Congress
intended to waive sovereign immunity for the use of information collected by
unlawful electronic surveillance, but not for the collection itself. According to the
opinion, FISA’s provision of a cause of action against the government under 50
U.S.C. § 1806(a) (for which 18 U.S.C. § 2712(a) waives sovereign immunity)
prohibits only the use of information collected through unlawful surveillance, thus
demonstrating that Congress did not intend to waive sovereign immunity for unlawful
collection when prescribing the civil cause of action in 50 U.S.C. § 1810. According
to the panel, “Al-Haramain can bring a suit for damages against the United States for
use of the collected information but cannot bring suit against the government for
collection of the information itself,” and “because governmental liability remains
under § 1806, the district court’s concern that FISA relief would become a dead letter
is not valid.” Slip op. at 8792-93 (emphasis in original).
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Section 1806(a) provides in full: “Information acquired from an electronic4/
surveillance conducted pursuant to this subchapter concerning any United Statesperson may be used and disclosed by Federal officers and employees without theconsent of the United States person only in accordance with the minimizationprocedures required by this subchapter. No otherwise privileged communicationobtained in accordance with, or in violation of, the provisions of this subchapter shalllose its privileged character. No information acquired from an electronic surveillancepursuant to this subchapter may be used or disclosed by Federal officers oremployees except for lawful purposes.” (Emphasis added.)
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The panel has misapprehended the scope of § 1806(a), which prohibits the
unlawful use or disclosure of “[i]nformation acquired from an electronic surveillance
conducted pursuant to this subchapter.” 50 U.S.C. § 1806(a) (emphasis added).4/
The phrase “conducted pursuant to this subchapter” restricts § 1806(a)’s scope to
unlawful use or disclosure of information that was lawfully collected pursuant to the
provisions of FISA—e.g., where authorized by a FISA warrant. Thus, the plaintiffs
here could not have sued under § 1806(a), because they assert that their surveillance
was not authorized by a FISA warrant and thus the information was not lawfully
collected. Their only recourse was to sue for unlawful collection under § 1810. Yet
the panel’s opinion deprives them of that recourse, based on a misapprehension that
they could have sued under § 1806(a).
This misapprehension may be explained by the incomplete manner in which
the panel’s opinion quotes § 1806(a): “‘Information acquired from an electronic
surveillance . . . may be used and disclosed by Federal officers and employees . . .
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only in accordance with the minimization procedures required by this subchapter.’”
Slip op. at 8791 n.3. The first ellipsis in this quotation omits § 1806(a)’s phrase
“conducted pursuant to this subchapter”—the very phrase that restricts § 1806(a)’s
scope to unlawful use or disclosure of information that was lawfully collected.
The district judge was right: If the federal government enjoys sovereign
immunity from liability under § 1810 for unlawful collection of information, then
FISA’s prohibition of warrantless wiretapping by the federal government is indeed
a dead letter. The panel’s decision makes that prohibition a dead letter based on the
mistaken belief that § 1806(a) authorizes a lawsuit for the use of such information.
It does not.
Recognizing that it “may seem anomalous and even unfair” for FISA to afford
a cause of action against the government for use of unlawfully-collected information
but not for the collection itself, the panel’s opinion states that “the policy judgment
is one for Congress, not the courts.” Slip op. at 8793. But a careful reading of §
1806(a)—including its phrase “conducted pursuant to this subchapter”—demonstrates
that Congress did not make such an anomalous and unfair policy judgment. Nor
should this Court.
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BE. The Panel’s Opinion Overlooks Plaintiffs’ Argumentthat FISA Waives Sovereign Immunity by AuthorizingAction Against an “Entity,” Which IncludesGovernment Entities.
In finding no waiver of sovereign immunity, the panel’s opinion focuses
exclusively on plaintiffs’ argument that FISA waives sovereign immunity by
authorizing action against “any officer or employee of the Federal Government.” 50
U.S.C. § 1801(m); see Brief of Appellees and Cross-Appellants in Al-Haramain II at
25-31. The opinion, however, overlooks a critical point of law: plaintiffs’ alternative
argument that FISA waives sovereign immunity by authorizing action against an
“entity.” 50 U.S.C. § 1801(m); see Brief of Appellees and Cross-Appellants in Al-
Haramain II at 31-32.
In making this alternative argument, plaintiffs relied on decisions construing
a subsequently-amended provision of the Electronic Communications Privacy Act
(ECPA), 18 U.S.C. § 2510 et seq., authorizing a cause of action against an “entity.”
Those decisions construed “entity” in that former provision of ECPA as including
government entities. See Adams v. City of Battle Creek, 250 F.3d 980, 985 (6th Cir.
2001); Organizacion JD Ltda. v. U.S. Dep’t of Justice, 18 F.3d 91, 94 (2d Cir. 1994).
Plaintiffs posit that FISA should be likewise construed.
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In responding to this argument, the government argued that those decisions had
“mistakenly construed” the former ECPA provision. Reply Brief for Appellants and
Brief for Cross-Appellees in Al-Haramain II at 11. This Court should decide that
question—for, if those decisions were correct, then they support a finding here that
FISA waives sovereign immunity from liability under § 1810.
C. The Panel’s Opinion, in Addressing Plaintiffs’ Analogyto the Waiver of Sovereign Immunity in Title VII,Overlooks Two Cited Circuit Court Decisions FindingSuch Waiver Without Specification of the “UnitedStates.”
The panel’s opinion rejects plaintiffs’ analogy to the waiver of sovereign
immunity in Title VII of the Civil Right Act of 1964—which authorizes civil actions
for employment discrimination against “the head” of certain departments, agencies,
and units of the federal government, without specifying the “United States,” 42
U.S.C. § 2000e-16(c)—because a Supreme Court case the plaintiffs cited “does not
address sovereign immunity.” See slip op. at 8795 n.5. But the panel’s opinion
overlooks the two circuit court cases the plaintiffs cited on this point, which do
address sovereign immunity. See Brief of Appellees and Cross-Appellants in Al-
Haramain II at 29. One of those cases holds that the cited provision of Title VII “is
a clear expression of consent to suits against the United States . . . .” Salazar v.
Heckler, 787 F.2d 527, 529 (10th Cir. 1986). The other case holds that “Congress
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clearly has waived sovereign immunity from claims of retaliation” under Title VII.
Rochon v. Gonzales, 438 F.3d 1211, 1216 (D.C. Cir. 2006). These overlooked cases
provide support for a finding that FISA similarly waives sovereign immunity from
liability under § 1810.
In finding no waiver of sovereign immunity, the panel relies on the absence of
the words “United States” from FISA’s definition of the word “person” in 50 U.S.C.
§ 1801(m). See slip op. at 8789 (“Glaringly missing from the definition is the ‘United
States.’”); 8791 (“contrasted against 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.’”). Salazar and Rochon demonstrate,
however, that the words “United States” are not required for a statute to waive
sovereign immunity.
D. The Panel’s Opinion Misapprehends the LegislativeHistory of 18 U.S.C. § 2712, Which Only IndicatesIntent to Reject the Addition of an AdministrativeClaim-Filing Requirement to 50 U.S.C. § 1810.
The panel’s opinion, relying on the legislative history of 18 U.S.C. § 2712(a)
to support the finding of sovereign immunity, misapprehends that legislative history
as purportedly including a decision by Congress in 2001 to reject a proposal for §
1810 to waive sovereign immunity. See slip op. at 8792. The proposal would have
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added a provision to § 1810 stating that “[a]ny action against the United States shall
be conducted under the procedures of the Federal Tort Claims Act.” See H.R. REP.
No. 107-236, § 161(d) (2001) (emphasis added).
Had this proposal succeeded, it would have added a new condition to the filing
of a civil action against the federal government for warrantless wiretapping in
violation of FISA—the filing of a pre-lawsuit administrative claim as required by the
Federal Tort Claims Act. See 28 U.S.C. § 2675. The proposed amendment
recognized that § 1810 already created a cause of action against the United States, for
the amendment was framed not as authorizing the cause of action but as prescribing
how it is to be conducted. The most likely explanation for Congress’s rejection of
this proposal is that Congress did not wish to add the administrative claim-filing
requirement to 50 U.S.C. § 1810—not that Congress intended to embrace sovereign
immunity from liability under that statute.
E. The Panel’s Opinion Overlooks the Additional Factsthat Plaintiffs Would Allege Against Defendant MuellerIf Given Leave to Amend.
The panel’s opinion affirms the district judge’s dismissal of the claim against
FBI Director Robert Mueller in his individual capacity—without leave to
amend—because the “bare-bones allegations against Mueller are insufficient to
survive summary judgment” and “[t]he district court recognized that Al-Haramain
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13
could not bring forth additional allegations that might breathe life into the otherwise
deficient claim against Mueller.” Slip op. at 8797-98. The panel’s opinion overlooks
additional facts plaintiffs can allege which would indeed breathe life into the claim
against Mueller.
Mueller’s dismissal is based on deficiency in the allegations of plaintiffs’ First
Amended Complaint filed on July 29, 2008. See ER 265. Since then, however,
further information has come into the public domain demonstrating Mueller’s
personal involvement in the TSP. According to the Offices of Inspectors General’s
Unclassified Report on the President’s Surveillance Program, dated July 10, 2009:
• On March 9, 2004, Mueller told Vice-President Cheney that if thePresident were to reauthorize the President’s Surveillance Program(which included the TSP) without the approval of the Department ofJustice, “Mueller responded, ‘I could have a problem with that,’ and thatthe FBI would ‘have to review [the] legality of [the FBI’s] continuedparticipation in the program.’” Id. at 22 [SER 29].
• On March 12, 2004, Mueller “drafted by hand a letter stating, in part:‘[A]fter reviewing the plain language of the FISA statute, and the orderissued yesterday by the President . . . and in the absence of furtherclarification of the legality of the program from the Attorney General,I am forced to withdraw the FBI from participation in the program.’” Id.at 27 [SER 34].
• On March 12, 2004, when Mueller met with the President, Mueller“explained to the President that he had an ‘independent obligation to theFBI and to DOJ to assure the legality of actions we undertook, and thata presidential order alone could not do that.’” Id. at 28 [SER 35].
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The panel’s opinion states that the claim against Mueller “was nothing more5/
than a sideshow, overshadowed by the core claims against the government,” and “Al-Haramain never vigorously pursued its claims against Mueller.” Slip op. at 8797.But the purpose of the claim against Mueller was to enable plaintiffs to challenge theTSP by proceeding against Mueller individually if the district judge were to findsovereign immunity. See Brief of Appellees and Cross-Appellants in Al-HaramainII at 77. Plaintiffs refrained from pursuing the claim against Mueller because thedistrict judge did not find sovereign immunity. Now that this panel has ruledotherwise, plaintiffs’ claim against Mueller is hardly a “sideshow,” slip op. at 8797,but is the only avenue remaining for plaintiffs to challenge the TSP.
14
This evidence (which plaintiffs brought to the panel’s attention in a letter filed
June 7, 2012, see Dkt. Entry 68-1) amply demonstrates Mueller’s personal
involvement in the TSP—from which he never withdrew the FBI’s
participation—sufficient to support a cause of action against him in his individual
capacity. The Court should remand the case to the district court with instructions to
grant leave to amend the complaint to allege these additional facts. See Jewel, 673
F.3d at 907 n.3 (“‘Dismissal without leave to amend is improper unless it is clear,
upon de novo review, that the complaint could not be saved by any amendment.’”).5/
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15
II. PETITION FOR REHEARING EN BANC
A. This Proceeding Involves a Question of ExceptionalImportance to the Nation: Whether the ExecutiveBranch Is Immune From Civil Liability ForWarrantless Wiretapping in Violation of FISA.
A rehearing en banc is warranted because this proceeding involves a question
of exceptional importance to the Nation: whether the Executive Branch is immune
from civil liability under 50 U.S.C. § 1810 and thus can violate FISA with impunity.
See FRAP 35(b)(1)(B).
Plaintiffs commenced this action in 2006 to challenge the legality of the
TSP—President George W. Bush’s program of warrantless electronic
surveillance—which flouted the provisions of FISA. Plaintiffs were buoyed by
presidential candidate Barack Obama’s 2007 pronouncement that “[w]arrantless
surveillance of American citizens, in defiance of FISA, is unlawful and
unconstitutional.” Charlie Savage, Barack Obama’s Q&A, BOSTON GLOBE (Dec. 20,
2007). Yet, once elected, President Obama effectively embraced the TSP by
vigorously asserting the state secrets privilege in opposition to the dozens of lawsuits
challenging President Bush’s surveillance practices. To date, the federal government
has succeeded in evading any sort of reckoning in the federal courts. Not a single one
of those lawsuits has been adjudicated on its merits.
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16
The present lawsuit is the last hope for holding the Executive Branch
accountable for violating FISA through warrantless electronic surveillance. Yet the
panel’s opinion “effectively brings [that hope] to an end.” Slip op. at 8784. The
opinion, in proclaiming sovereign immunity, tells the Nation that the President can
get away with unlawful conduct which violated an Act of Congress targeting that very
conduct.
This would be a sorry end to a pivotal episode in American history. This case
presents exceptionally important issues pertaining to the scope of presidential power
and the state secrets privilege. If the case is to end without an adjudication of those
issues or the TSP’s legality, but instead with a determination that the Executive
Branch enjoys sovereign immunity from any accountability for warrantless
wiretapping under 50 U.S.C. § 1810, it should not be based on the fundamental
misapprehension that a remedy exists for use of unlawfully-collected information
under 50 U.S.C. § 1806(a), when in fact that statute provides no such remedy.
No federal appellate court has yet decided the profoundly important issue
raised by the TSP: whether the President may violate an Act of Congress in the name
of national security. This Court should grant a rehearing en banc to determine
whether the President may evade that issue here by invoking sovereign immunity.
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17
B. The Panel’s Decision Conflicts With Two Decisions Bythe Same Panel in 2011.
Finally, we note that the panel’s decision conflicts with two decisions by the
same panel in 2011. In Hepting, 671 F.3d 881, which upheld the FAA’s provision
of retroactive immunity to the telecommunications carriers that participated in the
TSP, the panel said that the FAA “does not foreclose relief against government actors
and entities who are the primary players in the alleged wiretapping. Hepting retains
an independent judicial avenue to address those claims.” Id. at 899. The panel
added, “Congress did not prohibit adjudication of Hepting’s claims, it simply limited
the universe of responsibility to government defendants.” Ibid. Similarly, in Jewel,
673 F.3d 902, the panel said “Congress specifically envisioned plaintiffs challenging
government surveillance under this statutory constellation.” Id. at 912.
This view that the federal government may be sued for warrantless wiretapping
in violation of FISA is borne out by the FAA’s legislative history. The panel’s
Hepting decision itself quotes a Senate report on the FAA which states that the
provision of retroactive immunity for the telecommunications carriers was not
intended “to apply to, or in any way affect, pending or future suits against the
Government as to the legality of the President’s program.” S. REP. 110-209 at 8
(2007) (quoted in Hepting, 671 F.3d at 899). Similarly, one of the FAA’s proponents,
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18
Senator Kit Bond, stated in a cloture debate that victims of warrantless wiretapping
“can still sue the Government.” 154 CONG. REC. 112, at S6470 (daily ed. July 9,
2008).
The focus in Hepting and Jewel was on wiretapping and surveillance, not on
the use of the collected information, and the panel plainly stated that, in the FAA’s
wake, the plaintiffs could still sue the federal government for the unlawful collection.
Yet in the present case the panel changes course and holds that the victims of
warrantless wiretapping cannot sue the government perpetrators for the unlawful
collection, due to sovereign immunity, but can only sue for unlawful use or
disclosure.
Thus, en banc consideration is warranted because “the panel decision conflicts
with a decision . . . of the court to which the petition is addressed . . . and
consideration by the full court is therefore necessary to secure and maintain
uniformity of the court’s decisions,” FRAP 35(b)(1)(A)—here, uniformity of multiple
decisions by the same panel.
CONCLUSION
For the foregoing reasons, a panel rehearing and a rehearing en banc are both
warranted.
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19
August 29, 2012 Respectfully submitted,
/s/ Jon B. Eisenberg Jon B. EisenbergJ. Ashlee AlbiesSteven GoldbergZaha S. HassanLisa R. JaskolThomas H. Nelson
Attorneys for Plaintiffs, Appellees andCross-Appellants Wendell Belew andAsim Ghafoor
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20
CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(a)(7)(c) and Ninth Circuit Rule 32-1, I
certify that the Petition for Panel Rehearing and For Rehearing En Banc is
proportionately spaced, has a typeface of 14 points or more, and contains a total of
4,038 words.
August 29, 2012 By: /s/ Jon B. Eisenberg Jon B. Eisenberg
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CERTIFICATE OF SERVICE
I hereby certify that on August 29, 2012, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the Ninth
Circuit by using the appellate CM/ECF system.
Participants in the case who are registered CM/ECF users will be served by
the appellate CM/ECF system.
Signature: s/ Jon B. Eisenberg
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SLIP OPINION AUGUST 7, 2012
Nos. 11-15468 & 11-15535
Al-Haramain Islamic Foundation,
Inc., et al.
v.
Barack H. Obama, President of the
United States of America, et al.
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� � � � � � G � � U � � � H � � � � � � W @ � � G � � � � � F � � � � � G � U U � � W @ � � � � � F �� � � U í � � � @ � � � ( � � @ � � � � � G H W ( � � F � @ � < � � � � � � � � �$ > & � � � � � � @ @ G � � � � ( ( � ( + � � < � @ � < � � � � � � � U U W � � � ) + � � F� � @ � � G � � � < � � H � � � � � @ � � � + F � G F � � + � @ F � ( � � � � � ( � � � F � % � � � � (& � � � � @ H � � c H � � � ( � H � c � � � � � H ) ( � ( � � � + � � < � � U U W � � � ) + � � F� � @ � � G � � � � A E A M � � � ( � F � ( � @ � � � G � G � W � � � � � � ( c ) � U � W � � � � � �� U � H � � ( + � � < � � � � H � � � � U � � � � @ @ W � � � � � ( � U � � � @ � � � � � @ � � F �% � � � � ( & � � � � @ U � ) � � � � � � G � � ( W � ( � � � A E A M �� � å � ñ à ï á ã Ü ç ~ ë Ü ? ë ç ë ð õ á @ A Û � î ë à ñ Ý ð á à B â ñ ç ç ñ àI W � � � � � F � U � � ) ) � � � @ � F � @ G � @ � + � @ H � � � � � � � ( � � � F � ( � @ � � � G �G � W � � � � H � � � � � U � � � � @ @ W � � � � � � � @ � � # I � � � G � � � [ W � H H � � � � F � @� � ( � < � ( W � H G � � � G � � ) + � @ � � � F � � � U � � � � F � � � @ � ( � @ F � + � � < � � �@ F � ( � + � ( c ) � F � G � � � G H � � U @ � � � � � @ � � F � � � < � � � U � � � � � H �� � � � U � � � � � < � � < � � � � � W @ H ) � W � @ W � ( � � @ G H � � U @ � � � � � @ � [ W � H �H � � � T � � F � � � � � � F � � � � � � � � � F � ( � @ � � � G � G � W � � � � H � � � � � U � � �� U � F � @ � ' � ( � F � � � + � c � H � � < � [ � � [ W � H H � � � @ � G � � � H H � � ) + �� � � ( � � � � � � � � � � � 3 � : � 1 4 Ö 0 Õ : � ^ 8 × : 3 � Ø : 0 : � � � � 6 ^ Ù : � � � ] 6Ú 2 4 2 × ^ ; N M M � � & W � � � d ( � � A d M K � ! F � � � F � ( � @ � � � G � G � W � � � � � � H H )� � � G F � ( � F � � @ @ W � � � [ W � H H � � � @ � � ( � < � ( W � H H � � c � H � � ) � � � � � � � ( � F � �[ W � H H � � + � @ � � F � � � H ) ( � � � � ( � � � � � � � � @ � + F � U � H � � � � � � � @ @ � � b� � � � � G � � ( � � � � � � ( � < � ( W � H G � � � G � � ) � � � ] � V F � ( � @ � � � G � G � W � �� F � � ( � @ U � @ @ � ( � + � � F � W � H � � < � � � � U � � ( � � H H G H � � U @ � � � � � @ �[ W � H H � � � � F � @ � � ( � < � ( W � H G � � � G � � ) c � G � W @ � � � F � � � � W � � � � � F �+ � � � � ( � � � � c ) � � < � � � U � � � � H � G � � � @ � H H � � � ( � � ( � @ � � c H � @ F � (F � � � � � � @ � � � � G � � H � � � F � � � F � � � � ( � < � ( W � H � � � � � @ � � � H � � � ] ^$ C & � H � � � � � U � � � � @ c � � � � c � � � @ � H H � � � � � � � @ � � � � � @ � [ W � H H � �� � � � � @ W � � � G � � � � � � @ W � < � < � @ W U U � � ) � W ( � U � � � � V F � � H H � � � �� � � � @ � � � � F � � � � � � � � � � ) � G � � @ � @ � � � � + � @ � U � H � @ � � � � U � � � @ L[ W � H H � � � � F � � � � � � � ( � � � � @ � � � c � G � W @ � � � G � � G � � � @ � c � W � � F �H � � � H � � ) � � � F � + � � � � � � H � @ @ @ W � < � � H H � � G � � � � � � � U � � � ( � [ W � H �H � � � � @ � � � � � ( c � � � � � � F � � � W @ � X W ( � G � � � ) � � U U � � � � � � F � � � �d M M C � F � � # � W � ( � � F � @ ( � � � G � � � � � W � ( � � � � � b � G � � < � � ) W @ � � �� � � � � U � � � � � � � � ( W G � ( c ) � F � � & � � F � � W � F � F � + � � � � � � H � @ @@ W � < � � H H � � G � � � � � � � U � � V F � @ � � H H � � � � � � � @ ( � � � � � � � � � � � � � � � H )
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� H H � � � � G H � � U W � ( � � � & � � Õ : : 8 6 � � � � 5 4 � ^ � D + 1 0 � B B D % � & �D D d � D N E � d M M O � � � � � � G � U � H � � � � U W @ � G � � � � � � @ W � � � G � � � � � � G �� W � H U � � � � � � � G G � � � � ( � @ � � W � � � � @ � � � � � G H � � U � � � � H � � � � F � � � @� H � W @ � c H � � � � � @ � � G � � � � � � � � � � � H � W � � � � � � � @ � � ( G � � � � � � � @ � U � � �� � ( � � � � H � � � � � U � � � � @ � H H � � � � � � � @ � � � � � @ � [ W � H H � � � � � @ � � � � � � �G � � � H ) H � @ @ G � � G � � � � � F � � � F � @ � � � W � ( � � @ W � � � G � � � � � � � D + 1 0 � Õ : :2 ] ^ � � D E M � E A � V F � ( � @ � � � G � G � W � � � � G � � � � ' � ( � F � � � H � � � � � U � � �G � W H ( � � � c � � � � � � � � F � ( ( � � � � � � H � H H � � � � � � � @ � F � � U � � F � c � � � � F �H � � � � � � � � F � � � F � � + � @ � ( � � � G � � � � G H � � U � � � � � @ � [ W � H H � � � � �� � � � � H � � H � � � � � U � � � ( � � @ � � � F � � � � � ( � @ � � H � F � � G � � G H W @ � � � �V F � ( � @ � � � G � G � W � � ( � ( � � � � c W @ � � � @ ( � @ G � � � � � � � � ( � @ U � @ @ � � � � F �G H � � U @ � � � � � @ � [ W � H H � � + � � F � W � H � � < � � � � U � � ( �x á ã Ý ç â ï ë á ã$ E & # � G � W @ � � F � � � � @ � � � � � H � G � � + � � < � � � � @ � < � � � � � � � U U W �� � � ) � + � � � < � � @ � � F � ( � @ � � � G � G � W � � � @ ( � � � � U � � � � � � � � F � � � A E A M+ � � < � @ @ � < � � � � � � � U U W � � � ) � � @ � G � � @ � � W � � G � � + � < � G � � � � F �� W ( � U � � � � � � � < � � � � � H � � � � � U � � � � � � G H W ( � � � � F � � W ( � U � � � � � �H � � W � ( � � � ( ( � U � � � @ � � � � � � � � ) � @ � � � @ � � � ( G � @ � @ � ! � � � � � � U � F �( � @ U � @ @ � H � � G H � � U @ � � � � � @ � [ W � H H � � � � F � @ � � ( � < � ( W � H G � � � G � � ) �æ A A � ò B } î � { � æ ò F G ò } H } ò | } î � { � æ ò F G æ { îI z î J B } { F H æ x æ F } î å V F � � � � � � � @ @ F � H H c � � � � F � � � � + �G � @ � @ � � � � � � � H �
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CERTIFICATE OF SERVICE
I hereby certify that on August 29, 2012, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the Ninth
Circuit by using the appellate CM/ECF system.
Participants in the case who are registered CM/ECF users will be served by
the appellate CM/ECF system.
Signature: s/ Jon B. Eisenberg
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