Al-Haramain Islamic v. Obama

The use of the word "person" under the Foreign Intelligence Surveillance Act's civil liability provision, 50 U.S.C. § 1810, while referring to federal employees without including the United States, does not explicitly waive sovereign immunity.

This case involves electronic surveillance of Al-Haramain Islamic Foundation (“Al-Haramain”). Since Al-Haramain brought suit in 2006, this case appeared twice before the Ninth Circuit. Upon remand after the first appeal in 2007, the district court determined that the Foreign Intelligence Surveillance Act (“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 key issue on appeal was whether the district court erred in awarding damages for the United States’ liability based on an implied waiver of sovereign immunity under § 1810. The Supreme Court recently held that the standard for sovereign immunity requires that “the scope of Congress’ waiver be clearly discernable from the statutory text in light of traditional interpretive tools [and if] it is not, then [the court shall adopt] the interpretation most favorable to the Government.” The statutory language at issue was whether “person” includes the United States. Section 1810 allows an “aggrieved person, . . . who has been subjected to an electronic surveillance” to commence action against “any person who committed such violation.” Al-Haramain argued that because “person” includes federal employees, the definition must also extend to federal employees in their official capacities. The Court looked to other statutes, such as the USA PATRIOT Act, and discovered instances where Congress set forth explicit waivers of sovereign immunity. The absence of an explicit waiver in § 1810 indicates that Congress did not waive sovereign immunity. Thus, the district court erred in awarding damages under § 1810 based on waiver of sovereign immunity. AFFIRMED in part, REVERSED in part, and judgment VACATED.