Al-Haramain Islamic Foundation v. Barack Obama

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

AL-HARAMAIN ISLAMIC No. 11-15468
FOUNDATION , INC., an Oregon
Nonprofit Corporation; WENDELL D.C. No.
BELEW, a U.S. Citizen and Attorney 3:07-cv-00109-
at Law; ASIM GHAFOOR, a U.S. VRW
Citizen and Attorney at Law,
Plaintiffs-Appellees,

v.

BARACK H. OBAMA , President of the
United States, in his official capacity;
NATIONAL SECURITY AGENCY ;
KEITH B. ALEXANDER, Director of
NSA, in his official capacity; OFFICE
OF FOREIGN ASSETS CONTROL, of the
U.S. 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.
2 AL-HARAMAIN ISLAMIC FOUND . V . OBAMA

AL-HARAMAIN ISLAMIC No. 11-15535
FOUNDATION , INC., an Oregon
Nonprofit Corporation, D.C. No.
Plaintiff, 3:07-cv-00109-
VRW
and

WENDELL BELEW, a U.S. Citizen and AMENDED
Attorney at Law; ASIM GHAFOOR, a OPINION
U.S. Citizen and Attorney at Law,
Plaintiffs-Appellants,

v.

BARACK H. OBAMA , President of the
United States, in his official capacity;
NATIONAL SECURITY AGENCY ;
KEITH B. ALEXANDER, Director of
NSA, in his official capacity; OFFICE
OF FOREIGN ASSETS CONTROL, of the
U.S. 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.

Appeal from the United States District Court
for the Northern District of California
Vaughn R. Walker, District Judge, Presiding
 AL-HARAMAIN ISLAMIC FOUND . V . OBAMA 3

Argued and Submitted
June 1, 2012—Pasadena, California

Filed August 7, 2012
Amended December 5, 2012

Before: Harry Pregerson, Michael Daly Hawkins,
and M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown

SUMMARY*

Sovereign Immunity /
Foreign Intelligence Surveillance Act

The panel affirmed in part and reversed in part the district
court’s judgment in favor of Al-Haramain Islamic Foundation,
Inc. and individual plaintiffs in cases related to the United
States government’s Terrorist Surveillance Program. On
remand from this court, the district court held that the Foreign
Intelligence Surveillance Act (“FISA”) preempted or
displaced 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 attorneys’ fees.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 AL-HARAMAIN ISLAMIC FOUND . V . OBAMA

The panel held that there was no explicit waiver of the
United States’ sovereign immunity, and reversed the district
court’s determination that § 1810 of FISA waived sovereign
immunity. As a consequence, the panel vacated the judgment
in favor of Al-Haramain, including the judgment for liquidated
damages, attorneys’ fees, and costs. The panel affirmed the
district court’s dismissal of claims against FBI Director
Mueller in his individual capacity.

COUNSEL

Douglas N. Letter, United States Department of Justice, Civil
Division, Washington, D.C., for Defendants-Appellants/Cross-
Appellees.

Jon B. Eisenberg, Eisenberg and Hancock, Oakland,
California, for 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, Allied
Educational Foundation, and The National Defense
Committee.

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.
 AL-HARAMAIN ISLAMIC FOUND . V . OBAMA 5

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.

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
6 AL-HARAMAIN ISLAMIC FOUND . V . OBAMA

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.

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.

1
James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without
Courts, N.Y. Times, Dec. 16, 2005, at A1.
 AL-HARAMAIN ISLAMIC FOUND . V . OBAMA 7

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
8 AL-HARAMAIN ISLAMIC FOUND . V . OBAMA

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
 AL-HARAMAIN ISLAMIC FOUND . V . OBAMA 9

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 contemplated 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.
10 AL-HARAMAIN ISLAMIC FOUND . V . OBAMA

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
“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

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
 AL-HARAMAIN ISLAMIC FOUND . V . OBAMA 11

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 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.

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

“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)).
12 AL-HARAMAIN ISLAMIC FOUND . V . OBAMA

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 . . .

(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 . . . .
 AL-HARAMAIN ISLAMIC FOUND . V . OBAMA 13

...

(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.”).

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:
14 AL-HARAMAIN ISLAMIC FOUND . 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
understood how 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, 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.” Just as the term

3
These 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 FOUND . V . OBAMA 15

“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.

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.

4
Al-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.
16 AL-HARAMAIN ISLAMIC FOUND . V . OBAMA

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
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. 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 and then, on the other, cavalierly imply
 AL-HARAMAIN ISLAMIC FOUND . V . OBAMA 17

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 not
directed 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
18 AL-HARAMAIN ISLAMIC FOUND . V . OBAMA

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 situations 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
 AL-HARAMAIN ISLAMIC FOUND . V . OBAMA 19

§ 1806—and certainly in § 1810 via § 1801(m)—does not, by
itself, waive sovereign immunity.5

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.

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

5
Al-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).
20 AL-HARAMAIN ISLAMIC FOUND . V . OBAMA

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)
(noting in a criminal antitrust action that “in common usage,
the term ‘person’ does not include the sovereign”).

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,
 AL-HARAMAIN ISLAMIC FOUND . V . OBAMA 21

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 court then 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.

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 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,
22 AL-HARAMAIN ISLAMIC FOUND . V . OBAMA

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

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.