Mayfield v. United States

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRANDON BIERI MAYFIELD, an 
individual; MONA MAYFIELD,
appointed as Guardian Ad Litem
per Order; SHANE MAYFIELD;
No. 07-35865
SHARIA MAYFIELD; SAMIR
MAYFIELD, individuals, by and D.C. No.
through their guardian ad litem  CV-04-01427-AA
Mona Mayfield, ORDER AND
Plaintiffs-Appellees, OPINION
v.
UNITED STATES OF AMERICA,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief District Judge, Presiding

Argued and Submitted
February 5, 2009—Portland, Oregon

Filed March 24, 2010

Before: Richard A. Paez and Johnnie B. Rawlinson,
Circuit Judges, and Raner C. Collins,* District Judge.

Opinion by Judge Paez

*The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.

4715
4718 MAYFIELD v. UNITED STATES

COUNSEL

Douglas Letter and Scott McIntosh, Civil Division, Depart-
ment of Justice, Washington, D.C., for the appellant.
 MAYFIELD v. UNITED STATES 4719
Elden Rosenthal, Rosenthal & Greene, P.C., Portland, Ore-
gon, for the appellees.

ORDER

The government’s Motion to Correct Factual Misstatements
in the Panel Opinion is GRANTED. The opinion filed
December 10, 2009 and reported at 588 F.3d 1252, is vacated,
and a new opinion is filed concurrently with this Order.

The full court has been advised of the petition for rehearing
en banc and no judge has requested a vote on whether to
rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing en banc is denied. No further
petitions for rehearing shall be filed.

IT IS SO ORDERED.

OPINION

PAEZ, Circuit Judge:

In this appeal, we must decide whether Plaintiffs-Appellees
Brandon Mayfield, a former suspect in the 2004 Madrid train
bombings, and his family, have standing to seek declaratory
relief against the United States that several provisions of the
Foreign Intelligence Surveillance Act (“FISA”) as amended
by the PATRIOT Act are unconstitutional under the Fourth
Amendment of the U.S. Constitution. Although Mayfield set-
tled the bulk of his claims against the government, the Stipu-
lation for Compromise Settlement and Release (the
“Settlement Agreement”) allowed him to pursue his Fourth
Amendment claim. According to the terms of the Settlement
Agreement, the only relief available to Mayfield, if he were
4720 MAYFIELD v. UNITED STATES
to prevail on his Fourth Amendment claim, is a declaratory
judgment. He may not seek injunctive relief. We hold that, in
light of the limited remedy available to Mayfield, he does not
have standing to pursue his Fourth Amendment claim because
his injuries already have been substantially redressed by the
Settlement Agreement, and a declaratory judgment would not
likely impact him or his family. We thus vacate the judgment
of the district court.

I.

On March 11, 2004, terrorists’ bombs exploded on com-
muter trains in Madrid, Spain, killing 191 people and injuring
another 1600 people, including three U.S. citizens.1 Shortly
after the bombings, the Spanish National Police (“SNP”)
recovered fingerprints from a plastic bag containing explosive
detonators. The bag was found in a Renault van located near
the bombing site. On March 13, 2004, the SNP submitted dig-
ital photographs of the fingerprints to Interpol Madrid, which
then transmitted them to the FBI in Quantico, Virginia.

The FBI searched fingerprints in its own computer system,
attempting to match the prints received from Spain. On March
15, 2004, an FBI computer produced 20 candidates whose
known prints had features in common with what was identi-
1
Under the terms of the parties’ Settlement Agreement, the parties
agreed that plaintiffs’ Fourth Amendment claim would be litigated solely
on the basis of the Amended Complaint for Declaratory Relief (“Amended
Complaint”), the parties’ Recitation of Stipulated Facts, and memoranda
of law. Under the terms of the Settlement Agreement, the government was
not required to file an answer to the Amended Complaint. Thus, the gov-
ernment neither admitted nor denied the factual allegations in the opera-
tive complaint. The government did, however, stipulate, for purposes of
this litigation only, to the facts recited in the Recitation of Stipulated
Facts. Accordingly, for purposes of this opinion, we rely on the undisputed
facts set forth in the Recitation of Stipulated Facts and, where additional
context is necessary, the factual allegations in the Amended Complaint.
Our discussion of Mayfield’s personal and family history is taken from the
district court’s opinion.
 MAYFIELD v. UNITED STATES 4721
fied as Latent Finger Print #17 (“LFP #17”), one of whom
was Brandon Mayfield.

Mayfield is a U.S. citizen, born in Oregon and brought up
in Kansas. He lives with his wife and three children in Aloha,
Oregon, a suburb of Portland. He is 43 years old, a former
Army officer with an honorable discharge, and a practicing
lawyer. Mayfield is also a Muslim with strong ties to the Mus-
lim community in Portland.

On March 17, 2004, FBI Agent Green, a fingerprint spe-
cialist, concluded that Mayfield’s left index fingerprint
matched LFP #17. Green then submitted the fingerprints for
verification to Massey, a former FBI employee who continued
to contract with the FBI to perform forensic analysis of fin-
gerprints. Massey verified that Mayfield’s left index finger-
print matched LFP #17. The prints were then submitted to a
senior FBI manager, Wieners, for additional verification.
Wieners also verified the match.

On March 20, 2004, the FBI issued a formal report match-
ing Mayfield’s print to LFP #17. The next day, FBI surveil-
lance agents began to watch Mayfield and follow him and
members of his family when they traveled to and from the
mosque, Mayfield’s law office, the children’s schools, and
other family activities. As detailed in the Recitation of Stipu-
lated Facts, the FBI also applied to the Foreign Intelligence
Security Court (“FISC”) for authorization to “collect foreign
intelligence information.” Pursuant to that authorization, the
FBI conducted “covert physical searches of the Mayfield
home,” and “electronic surveillance targeting Mr. Mayfield at
the Mayfield home and at Mr. Mayfield’s law office.”

In April 2004, the FBI sent Mayfield’s fingerprints to the
Spanish government. The SNP examined the prints and the
FBI’s report, and concluded that there were too many unex-
plained dissimilarities between Mayfield’s prints and LFP #17
to verify the match. When FBI agents then met with their
4722 MAYFIELD v. UNITED STATES
Spanish counterparts in Madrid, the Spanish investigators
refused to validate the FBI’s conclusion that there was a
match.

After the meeting with the SNP, the FBI submitted an affi-
davit to the district court, stating that experts considered LFP
#17 a “100% positive identification” of Mayfield. The affida-
vit also included information about Mayfield’s religious prac-
tice and association with other Muslims. On May 4, 2004, the
government named Brandon Mayfield as a material witness
and filed an application for material witness order. The dis-
trict court appointed an independent fingerprint expert, Ken-
neth Moses, to analyze the prints in question. Mayfield and
his defense attorneys approved the appointment. Moses con-
cluded that LFP #17 was from Mayfield’s left index finger.

The district court issued several search warrants, which
resulted in the search of Mayfield’s home and office, and the
seizure of his computer and paper files. On May 6, 2004,
Mayfield was arrested and imprisoned for two weeks. May-
field alleged that his family was not told where he was being
held, but was told that his fingerprints matched those of the
Madrid train bomber, and that he was the prime suspect in a
crime punishable by death. While Mayfield was detained,
national and international headlines declared him to be linked
to the Madrid bombings. On May 20, 2004, news reports
revealed that Spain had matched LFP #17 with a man named
Ouhane Daoud, an Algerian citizen. Mayfield was released
from prison the following day.

On October 4, 2004, Mayfield, his wife, and his children2
filed suit against the government in the United States District
Court for the District of Oregon. The complaint alleged a Bivens3
2
Because the family’s claims are identical to Mayfield’s, we refer to all
plaintiffs collectively as “Mayfield.”
3
Bivens v. Six Unknown Named Agents of the Federal Bureau of Nar-
cotics, 403 U.S. 388 (1971).
 MAYFIELD v. UNITED STATES 4723
claim for unlawful arrest and imprisonment and unlawful
searches, seizures, and surveillance in violation of the Fourth
Amendment; a claim under the Privacy Act, 5 U.S.C. § 552a,
for leaking information from the FBI and DOJ to media
sources regarding Brandon Mayfield’s arrest; a claim for the
return of property improperly seized; and a Fourth Amend-
ment challenge to the constitutionality of several FISA provi-
sions and the PATRIOT Act.

Mayfield reached a settlement with the government, and
the district court approved it on November 29, 2006. The Set-
tlement Agreement provided that the government would pay
compensatory damages of $2 million to Mayfield and his
family; destroy documents relating to the electronic surveil-
lance conducted pursuant to FISA; return seized “material
witness materials” to Mayfield; and apologize to Mayfield
and his family. In return, Mayfield agreed to release the gov-
ernment of all liability or further litigation, except as to one
specific claim: that 50 U.S.C. §§ 1804 (authorizing electronic
surveillance under FISA) and 1823 (authorizing physical
searches under FISA) violate the Fourth Amendment of the
U.S. Constitution. The parties agreed that the sole relief that
Mayfield could seek or that the court could award with regard
to this claim would be a declaratory judgment.

On December 6, 2006, Mayfield filed an Amended Com-
plaint for Declaratory Judgment. The Amended Complaint
challenged the constitutionality of 50 U.S.C. §§ 1804 and
1823, the portions of FISA, as amended by the PATRIOT Act,4
that allow the government to conduct physical searches, elec-
4
Prior to 2001, several federal courts construed FISA to authorize
searches and electronic surveillance only when the government’s primary
purpose was to collect foreign intelligence information. See, e.g., In re
Sealed Case, 310 F.3d 717 (FISCR 2002) (discussing pre-2001 cases).
Following the September 11, 2001 terrorist attacks, Congress enacted the
PATRIOT Act, which changed the original statutory language of “the pur-
pose” to “a significant purpose.” Pub. L. No. 107-56, § 218, 115 Stat. 291
(2001) (amending 50 U.S.C. §§ 1804(a)(6)(B) and 1823(a)(6)(B)).
4724 MAYFIELD v. UNITED STATES
tronic surveillance, and wiretaps of residences and offices
without requiring proof of probable cause or an assertion that
the primary purpose of such activities is to gather foreign
intelligence information. The complaint asserted that the stat-
utory provisions were facially unconstitutional. Mayfield
alleged that he continued to suffer injury because the govern-
ment refused to identify and destroy all materials derived
from the FISA searches and seizures,5 and that he feared
future uses of the materials as well as other future applications
of FISA against him and his family.

Both Mayfield and the government moved for summary
judgment. The government also moved to dismiss on the
ground that Mayfield did not have standing to pursue the
Fourth Amendment claim and therefore the court lacked juris-
diction. The court subsequently issued a decision denying the
motion to dismiss and granting summary judgment to May-
field. See Mayfield v. United States, 504 F. Supp. 2d 1023 (D.
Or. 2007). The district court determined that it had jurisdic-
tion because there was a live case or controversy that could
be redressed with a declaratory judgment. Id. at 1034. As to
the merits, the court held that the challenged provisions of
FISA, namely 50 U.S.C. §§ 1804 and 1823, as amended by
the PATRIOT Act, were unconstitutional because they violate
the Fourth Amendment’s requirement of probable cause, and
because they authorize FISA activities as long as a “signifi-
cant purpose”—rather than the “primary purpose” required
pre-Patriot Act—is to gather foreign intelligence information.
Id. at 1032, 1042-43.
5
Although the settlement agreement required the government to destroy
or return to Mayfield certain FISA material that it acquired or seized pur-
suant to the the FISA electronic surveillance and search authority targeting
Mayfield, the government was not required to destroy any derivative
material contained in government files. The Recitation of Stipulated Facts
acknowledges that “[s]ome derivative materials . . . remain in government
files at present.”
 MAYFIELD v. UNITED STATES 4725
The government filed a timely appeal. The government
argues that the district court did not have jurisdiction to hear
Mayfield’s Fourth Amendment claim because a declaratory
judgment will not redress Mayfield’s residual injuries. In
addition, the government argues that the district court erred in
declaring 50 U.S.C. §§ 1803 and 1823 unconstitutional.
Finally, the government argues that the district court improp-
erly decided other issues that were outside the scope of the
Amended Complaint and thus foreclosed by the Settlement
Agreement.

II.

In the Amended Complaint, Mayfield sought a declaratory
judgment that 50 U.S.C. §§ 1804 and 1823, as amended by
the PATRIOT Act, are facially unconstitutional. Mayfield
alleged that the government used the challenged statutory pro-
visions to conduct covert surveillance, searches of the fami-
ly’s private quarters, and seizures of the family’s private
materials. Mayfield further asserted that because the govern-
ment obtained these materials unlawfully, and even though
the government returned the physical materials, the continued
retention of any derivative material was also unlawful. The
purpose of the desired declaratory judgment was thus twofold:
1) to prevent future uses of FISA against Mayfield; and 2) to
force the government to return or destroy all derivative mate-
rials in its possession obtained from Mayfield by unconstitu-
tional means.6
6
See Mayfield, 504 F. Supp. 2d at 1034 (“The government provides that
derivative materials may include photocopies or photographs of docu-
ments from confidential client files in Mayfield’s law office, summaries
and excerpts from the computer hard drives from the Mayfield law office
and plaintiffs’ personal computers at home, analysis of plaintiffs’ personal
bank records and bank records from Mayfield’s law office, analysis of cli-
ent lists, websites visited, family financial activity, summaries of confi-
dential conversations between husband and wife, parents and children, and
other private activities of a family’s life within their home. These materi-
als, in a derivative form, have been distributed to various government
agencies.”).
4726 MAYFIELD v. UNITED STATES
[1] To bring suit in federal court, a plaintiff must establish
three constitutional elements of standing. First, the plaintiff
must have suffered an “injury in fact,” the violation of a pro-
tected interest that is (a) “concrete and particularized,” and (b)
“actual or imminent.” Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992). Second, the plaintiff must establish a
causal connection between the injury and the defendant’s con-
duct. Id. Third, the plaintiff must show a likelihood that the
injury will be “redressed by a favorable decision.” Id. (quot-
ing Simon v. E. Kentucky Welfare Rights Org., 426 U.S. 26,
43 (1976)).

[2] “[A] plaintiff must demonstrate standing separately for
each form of relief sought.” Friends of the Earth, Inc. v.
Laidlaw Envtl. Serv., Inc., 528 U.S. 167, 185 (2000). Thus, a
plaintiff who has standing to seek damages for a past injury,
or injunctive relief for an ongoing injury, does not necessarily
have standing to seek prospective relief such as a declaratory
judgment. See id. at 185-86; City of Los Angeles v. Lyons, 461
U.S. 95, 111 (1983).

The government contends that the district court lacked
jurisdiction over Mayfield’s claims because Mayfield lacks
the requisite Article III standing. According to the govern-
ment, Mayfield’s Fourth Amendment claim in the Amended
Complaint is based on past injuries and speculation about the
possibility of future injuries. Furthermore, as the government
argues, the retention of derivative materials obtained from the
FISA activities would not be affected by a declaratory judg-
ment because there is no requirement that the government
release or destroy the fruits of an unlawful search. The gov-
ernment thus asserts that Mayfield has not demonstrated that
his injury is “imminent” or will be redressed by the relief
sought. See Defenders of Wildlife, 504 U.S. at 560-61.

Standing is a question of law that we review de novo. Bern-
hardt v. County of Los Angeles, 279 F.3d 862, 867 (9th Cir.
2002). We also review de novo a grant of summary judgment.
 MAYFIELD v. UNITED STATES 4727
Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1039 (9th Cir.
1999). The district court determined that Mayfield alleged an
ongoing injury by the very fact of the government’s retention
of derivative FISA materials. Mayfield, 504 F. Supp. 2d at
1034. The court further concluded that a judgment declaring
the challenged statutory provisions unconstitutional would
likely result in the government’s making reasonable efforts to
destroy the derivative materials in its possession. Id. We agree
that Mayfield suffers an actual, ongoing injury, but do not
agree that a declaratory judgment would likely redress that
injury. See Johnson v. Stuart, 702 F.2d 193, 196 (9th Cir.
1983). We therefore reverse the judgment of the district court
with regard to standing. We also vacate the district court’s
judgment on the merits and do not address the question of
whether the challenged provisions of FISA, as amended by
the PATRIOT Act, are unconstitutional.

A. Ongoing Injury

To establish Article III standing, a plaintiff must show inter
alia that he faces imminent injury on account of the defen-
dant’s conduct. Defenders of Wildlife, 504 U.S. at 560. Past
exposure to harmful or illegal conduct does not necessarily
confer standing to seek injunctive relief if the plaintiff does
not continue to suffer adverse effects. Id. at 564. Nor does
speculation or “subjective apprehension” about future harm
support standing. Friends of the Earth, 528 U.S. at 184; see
also Defenders of Wildlife, 504 U.S. at 560. Once a plaintiff
has been wronged, he is entitled to injunctive relief only if he
can show that he faces a “real or immediate threat . . . that he
will again be wronged in a similar way.” Lyons, 461 U.S. at
111 (1983).

The government does not contest that Mayfield was sub-
jected to surveillance, searches, and seizures authorized by
FISA and the FISC. The government argues, however, that it
acted under a unique set of circumstances that are highly
unlikely to recur. The government further argues that any pos-
4728 MAYFIELD v. UNITED STATES
sibility that it will use the derivative materials in its posses-
sion is “wholly speculative.” Mayfield responds that he
continues to suffer harm as the result of the FISA activities.
He argues that the retention by government agencies of mate-
rials derived from the seizures in his home and office consti-
tutes an ongoing violation of his constitutional right to
privacy.

[3] Although questions of standing are reviewed de novo,
we will affirm a district court’s ruling on standing when the
court has determined that the alleged threatened injury is suf-
ficiently likely to occur, unless that determination is clearly
erroneous or incorrect as a matter of law. Armstrong v. Davis,
275 F.3d 849, 861 (9th Cir. 2001). In Armstrong, we enumer-
ated two ways in which a plaintiff can demonstrate that such
injury is likely to recur. Id. “First, a plaintiff may show that
the defendant had, at the time of the injury, a written policy,
and that the injury ‘stems from’ that policy.” Id. “Second, the
plaintiff may demonstrate that the harm is part of a ‘pattern
of officially sanctioned . . . behavior, violative of the plain-
tiffs’ [federal] rights.’ ” Id. (quoting LaDuke v. Nelson, 762
F.2d 1318, 1323 (9th Cir. 1985)) (alterations in original).
Here, Mayfield asserts that his injury stems from the govern-
ment’s application of the challenged FISA provisions, as
amended by the PATRIOT Act. The causal link between the
government’s actions and Mayfield’s injury is not disputed.
Nor is the fact that the government’s actions were authorized
by FISA, which constitutes both the “written policy” and
“pattern of officially sanctioned behavior” that gave rise to
standing under Armstrong. Based on the undisputed facts, the
district court concluded that Mayfield “continue[s] to suffer a
present, on-going injury due to the government’s continued
retention of derivative material from the FISA seizure.” May-
field, 504 F. Supp. 2d at 1034. We agree with the district
court’s determination.

B. Redressability

[4] To establish standing, a plaintiff must also show that a
favorable decision will likely redress his injury. Defenders of
 MAYFIELD v. UNITED STATES 4729
Wildlife, 504 U.S. at 560; Levine v. Vilsack, 587 F.3d 986,
991-92 (9th Cir. 2009). When the lawsuit at issue challenges
the legality of government action, and the plaintiff has been
the object of the action, then it is presumed that a judgment
preventing the action will redress his injury. Defenders of
Wildlife, 504 U.S. at 561-62. Here, Mayfield seeks declara-
tory relief against the type of government action that indispu-
tably caused him injury. He is thus entitled to a presumption
of redressability.

[5] The government argues that a declaration that the chal-
lenged provisions of FISA are unconstitutional would not
require the government to destroy the derivative materials in
its possession, and therefore would not redress Mayfield’s
injury. The government is correct that it would not necessarily
be required by a declaratory judgment to destroy or otherwise
abandon the materials. See, e.g., Pennsylvania Bd. of Proba-
tion and Parole v. Scott, 524 U.S. 357, 362 (1998) (noting
that a Fourth Amendment violation occurs at the moment of
the illegal search or seizure, and that the subsequent use of the
evidence obtained does not per se violate the Constitution);
INS v. Lopez-Mendoza, 468 U.S. 1032, 1046 (1984) (holding
that the Fourth Amendment does not provide a retroactive
remedy for illegal conduct). The district court stated that a
declaratory judgment would require the government to “act
lawfully and make all reasonable efforts to destroy the deriva-
tive materials.” Mayfield, 504 F. Supp. 2d at 1034. But there
is nothing in the declaratory judgment that would make it
unlawful for the government to continue to retain the deriva-
tive materials.7 To establish standing, Mayfield must show a
“substantial likelihood” that the relief sought would redress
7
The district court stated “that 50 U.S.C. §§ 1804 and 1823, as amended
by the Patriot Act, are unconstitutional because they violate the Fourth
Amendment of the United States Constitution. Plaintiffs’ Amended Com-
plaint for declaratory relief is granted.” Mayfield, 504 F. Supp. 2d at 1042-
43. The court did not address the legality of the government’s retention of
derivative materials.
4730 MAYFIELD v. UNITED STATES
the injury. See Johnson, 702 F.2d at 196. There is no such
likelihood here.

We recently addressed standing in Stormans, Inc. v.
Selecky, 571 F.3d 960 (9th Cir. 2009). In Stormans, pharmacy
owners challenged—under the Free Exercise Clause—a
Washington regulation requiring pharmacists to stock and dis-
pense Plan B (emergency contraception). In holding that the
pharmacy owners met the criteria for Article III standing, we
found that their injury would be redressed by a judgment that
the regulation was unconstitutional. Id. at 971. The connec-
tion in Stormans was direct: the regulation required the phar-
macists to perform actions that they would not have to
perform if the regulation were invalidated. Id. If the statutes
challenged by Mayfield were declared unconstitutional, there
will be no direct consequence to him. The government will
not be required to act in any way that will redress Mayfield’s
past injuries or prevent likely future injuries. Our opinion in
Stormans, therefore, does not affect our holding here.

[6] We also recently addressed, in Paulsen v. CNF Inc., a
scenario analogous to Mayfield’s. 559 F.3d 1061 (9th Cir.
2009). In Paulsen, plaintiffs were prescription drug plan par-
ticipants who brought suit against a benefits management
company under ERISA § 502(a), 29 U.S.C. § 1132, alleging
breach of fiduciary duty. Id. at 1073. Plaintiffs argued that if
the court found in their favor, the plan’s drug costs, contribu-
tions, and co-payments would decrease. Id. We found that the
alleged injury was not redressable because the court’s judg-
ment would not compel the defendants to increase their dis-
bursement of benefits payments. Id. at 1074. We thus held
that plaintiffs lacked standing under Article III because “any
prospective benefits depend on an independent actor who
retains broad and legitimate discretion the courts cannot pre-
sume either to control or predict.” Id. (internal citations omit-
ted). Mayfield’s situation resembles that of the plaintiffs in
Paulsen, as redressability depends upon the actions of the
government in response to the court’s judgment; as in Paul-
 MAYFIELD v. UNITED STATES 4731
sen, such actions, in light of the unique circumstances of this
case, are not within the control of the court.

III.

[7] Mayfield unquestionably had standing to seek damages
and injunctive relief when he filed the original complaint. The
requirements for seeking such relief, however, differ from the
requirements for seeking a declaratory judgment. See Lyons,
461 U.S. at 111. Having bargained away all other forms of
relief, Mayfield is now entitled only to a declaratory judg-
ment. Although it is undisputed that the government retains
materials derived from the FISA searches and surveillance of
Mayfield’s property, the only relief that would redress this
alleged Fourth Amendment violation is an injunction requir-
ing the government to return or destroy such materials. Under
the terms of the Settlement Agreement, Mayfield cannot seek
injunctive relief.8 Nor is it likely that the government will
return the materials of its own volition, as it is under no legal
obligation to do so, and has stated in its brief that it does not
intend to take such action. Finally, the district court did not—
in conjunction with its Opinion and Order sua sponte order
the government to return or destroy the derivative materials,
but merely stated that “it is reasonable to assume that the
Executive branch of the government will act lawfully and
make all reasonable efforts to destroy the derivative materials
when a final declaration of the unconstitutionality of the chal-
lenged provisions is issued.” Mayfield, 504 F. Supp. 2d at
1034.
8
Paragraph 8 of the Settlement Agreement stated: “The parties agree
that the sole claim that is not released as part of this settlement and that
is at issue in such Amended Complaint is the plaintiffs’ claim that 50
U.S.C. 1804 (relating to electronic surveillance under the Foreign Intelli-
gence Surveillance Act) and 50 U.S.C. 1823 (relating to physical searches
under such Act) violate the Fourth Amendment on their face, and the par-
ties agree that the sole relief that will be awarded should the plaintiffs pre-
vail on such claim is a declaratory judgment that one or both provisions
is in violation of the Fourth Amendment . . . .” (emphasis added).
4732 MAYFIELD v. UNITED STATES
[8] Given the limited remedy left open by the Settlement
Agreement and the absence of any authority on which the dis-
trict court could rely to insist sua sponte that the derivative
materials be returned or destroyed, we must conclude that
Mayfield lacks standing to pursue his Fourth Amendment
claim. We therefore vacate the judgment of the district court
without reaching the merits of Mayfield’s Fourth Amendment
claim, and we remand to the district court with directions to
dismiss Mayfield’s Amended Complaint.

VACATED AND REMANDED.