Administrative law - United States entitled to sovereign immunity under the Foreign Intelligence Surveillance Act's civil-liability provision, section 1810.

• Author: Nabulsi, Sammy Suhail
• Position: Case note

Under well-established common law of the United States, the nation is immune from being held liable by suit from any party therein or foreign to the United States under the principle of sovereign immunity. (1) However, the Supreme Court of the United States has carved out an important exception to this broad protection, providing that where the sovereign has explicitly waived its sovereign immunity by an act of Congress, a plaintiff may bring an action holding the United States liable. (2) In Al-Haramain Islamic Foundation, Inc. v. Obama (Al-Haramain II), (3) the Ninth Circuit was confronted with the threshold issue of whether the Foreign Intelligence Surveillance Act's ("FISA") civil-liability provision, 50 U.S.C. [section] 1810, impliedly waived the United States' sovereign immunity from being held liable for violations therein. (4) The Ninth Circuit held that FISA's civil-liability provision did not waive the United States' sovereign immunity because there was no mention of the term "United States" in the statute, and thus there was no explicit waiver. (5)

After the attacks on September 11, 2001, former President George W. Bush authorized the National Security Agency ("NSA") to conduct a warrantless communications surveillance program, later named the Terrorist Surveillance Program ("TSP"). (6) The program was leaked by the New York Times and was followed by a series of public disclosures regarding details of the TSP. (7) In 2004, before the TSP was leaked, the Treasury Department announced an investigation of Al-Haramain Islamic Foundation, Inc. ("Al-Haramain"), alleging links with Al Qaeda. (8) During the investigation, the Treasury Department inadvertently handed over a sealed document from the Office of Foreign Assets Control to Al-Haramain which allegedly suggested that Al-Haramain and some of its lawyers had been the subject of electronic surveillance. (9) Along with the discovery of the document, a slew of public evidence surfaced favorable to Al-Haramain, including the Federal Bureau of Investigation's ("FBI") admission that they were both using surveillance in connection with their investigation of Al-Haramain and had intercepted phone conversations involving an Al-Haramain member in 2003, as well as testimony of top executive branch officials before Congress claiming that most modern international communications had been wired. (10) Based upon the information publicly disclosed and the contents of the sealed document, Al-Haramain filed suit against federal officials in their individual and official capacities pursuant to FISA, alleging that its members had been unlawfully subject to surveillance. (11)

Al-Haramain's procedural journey has been a long and complicated one. (12) on appeal from the government's first motions to dispose of the case, the Ninth Circuit agreed with the district court that dismissal was not appropriate: litigation could not be barred by the state secrets privilege; however, the government's inadvertently disclosed document was properly excluded. (13) On remand, the district court dismissed Al-Haramain's claim and granted leave to amend their complaint to include pleadings sufficient to show that they were "aggrieved persons" under FISA. (14) Upon Al-Haramain's filing of the first amended complaint, the government filed yet another motion to dismiss, or for summary judgment in the alternative, which the court denied because Al-Haramain had provided sufficient pleadings showing "aggrieved person" status. (15) After the government denied access to classified documents, Al-Haramain moved forward with their unclassified evidence and successfully filed for summary judgment against the government. (16)

In the same order granting summary judgment to Al-Haramain, the lower court also denied the government's cross-motion to dismiss the case for lack of jurisdiction. (17) The government argued that Al-Haramain's claim for damages under FISA was barred because the section of FISA from which Al-Haramain brought its claim does not expressly waive the United States' sovereign immunity. (18) The court denied the government's motion to dismiss, holding that waiver of the United States' sovereign immunity is implied by FISA's civil-liability provision. (19) The government appealed, and the Ninth Circuit vacated the order of the district court and reversed the judgment that awarded damages to Al-Haramain. (20)

Under well-established common law, the United States, as a sovereign, is immune from liability unless it otherwise consents to be sued. (21) The doctrine of sovereign immunity has its roots in English common law which provided that the King was to never be included under statutory schemes as a potentially liable party as a matter of public policy. (22) The rationale behind the doctrine of sovereign immunity is that the public, as represented by the government, should not suffer or be penalized by the acts and violations of its agents. (23) The doctrine of sovereign immunity is viewed as a limitation on the subject matter jurisdiction of district courts, and thus can be raised at any time before final judgment in the course of litigation. (24)

The United States' sovereign immunity can be waived so long as the government consents to being sued. (25) on numerous occasions, the Supreme Court has held that a waiver of the United States' sovereign immunity from suit must be explicitly and unequivocally expressed. (26) In considering whether an express waiver exists, there are no "magic words" required so long as the waiver is clearly discernible from the text of the statute under which a plaintiff brings an action. (27) However, any ambiguities that exist must be construed in favor of the government for sovereign immunity. (28) Furthermore, courts have refused to diverge from the requirement of an unequivocal expression of waiver, and firmly reject implying waivers into the contexts of statutory schemes. (29)

Sovereign immunity analysis is often a tool for interpreting statutes and must be analyzed in tandem with traditional tools of statutory construction. (30) When engaging in statutory construction to analyze whether the United States has waived its sovereign immunity, courts have required a very strict construction in favor of the sovereign. (31) Courts must consider the controversial component of the statute in the context of the entire statutory scheme when employing traditional tools of statutory construction. (32) The Supreme Court has avoided implying terms and definitions into statutes, instead giving the words within statutes their common and plain meanings. (33) When interpreting the meaning of a statute, courts rely on the following interpretative tools: (1) purpose of the statute; (2) legislative history and congressional intent; and (3) structure. (34)

In reaching its decision in Al-Haramain II, the Ninth Circuit employed traditional methods of statutory construction to ultimately reverse the lower court's decision that FISA's civil-liability provision does not explicitly waive sovereign immunity. (35) The Ninth Circuit relied on statutory structure, legislative history, and congressional intent to reach its conclusion. (36) Reasoning upon the principle that a waiver of sovereign immunity must be explicitly stated, the Ninth Circuit began its analysis by comparing the provision in question with other provisions of FISA and other congressional acts that explicitly waive the United States' sovereign immunity. (37) The Ninth Circuit held that the sole use of the word "person" in FISA's civil-liability provision was too ambiguous and stood in stark contrast to the explicit use of the term "United States" in other waiver provisions. (38) Furthermore, taking the FISA statutory scheme as a whole, the Ninth Circuit identified that Congress did not intend to waive sovereign immunity in FISA's civil-liability provision because of its explicit use of the term "United States" with respect to other aspects of FISA: most notably, the USA PATRIOT Act. (39) The Ninth Circuit reasoned that Congress clearly knew how to waive the United States' sovereign immunity in the context of FISA; their omission of the term "United States" into the text of FISA's civil-liability provision tends to show that Congress did not intend to waive sovereign immunity with regard to this specific provision. (40) The Ninth Circuit also gave great weight to the fact that section 1810 lacked any procedures to bring an action for civil damages against the United States, and that the remedy provided by section 1810 was premised on a violation of section 1809--a criminal provision. (41) Although the Ninth Circuit noted that its reason for holding that section 1810 of FISA did not explicitly waive the United States' sovereign immunity is based on the structure of FISA's statutory scheme and lack of express use of the term "United States," the court also found support for its decision in legislative history. (42) The court acknowledged that the first version of the USA PATRIoT Act provided a remedy for governmental electronic surveillance; furthermore, FISA, in itself, did not waive sovereign immunity. (43) However, the proposed amendment to create an explicit waiver of sovereign immunity within the context of section 1810 was deleted the very next day. (44) The Ninth Circuit reasoned that Congress's inclusion of an explicit waiver of sovereign immunity in the USA PATRIoT Act for section 1806 without a similar waiver in section 1810 demonstrates that Congress intended to bar suit against the United States for electronic surveillance while providing such a remedy for its use and disclosure. (45) Ultimately, the Ninth Circuit decided that section 1810 of FISA does not waive the United States' sovereign immunity for the electronic surveillance of Al-Haramain because there is no explicit waiver within the statutory text, and the legislative history and statutory structure demonstrate that an implied waiver was...