The US Court of Appeals for the Ninth Circuit on Friday partially revived a suit alleging improper FBI surveillance of Muslim residents of Southern California. The case was heard on remand from the US Supreme Court and decided on the findings of the District Court.

Yassir Fazaga and other plaintiffs had initially filed a putative class action suit against the US government, the FBI, and various FBI personnel in their official and individual capacities. They alleged that the FBI paid a confidential informant to gather information about Muslim residents in a counterterrorism operation by the name of “Operation Flex.” The plaintiffs presented two-fold claims: the first alleging unconstitutional searches in violation of the Fourth Amendment, and the second alleging religious discrimination violating religious freedom under the First and Fifth Amendments and various statutes. The Supreme Court remanded the case back to the Appeals Court on appeal.

In the present case, Fazaga v. FBI, the Court was presented with mainly two questions: the first involved whether Bivens v. Six Unknown Federal Narcotics Agents applied to the present case and would thus entitle the plaintiffs to monetary damages, and the second involved whether the state secrets privilege can be invoked at the motion to dismiss stage, without an inquiry by the Court.

To the first question, the Court held that the plaintiffs’ claim to monetary relief under Bivens could not be upheld. It observed that a Bivens claim is extremely limited in nature and, as was held in Egbert v. Boule, any rational reason (even one) to think that Congress is better suited to weigh the costs and benefits of allowing a damages action” precludes a Bivens claim. It further held that the context of this case is “entirely new” from cases where Bivens has been applied.

To the second question, the Court held that the District Court’s application of United States v. Reynolds, wherein the government asserted that the case should be dismissed to safeguard state secrets was not appropriate. Instead, the Court held that Reynolds only empowers the government to preclude certain information which is privileged, and not get the case dismissed entirely on the basis of some information being privileged. It further held that “the government has not demonstrated that excluding the privileged information would deprive it of a valid defense or that the privileged information is so intertwined with the relevant non-privileged information that further litigation unacceptably risks disclosing state secrets. We therefore reverse the dismissal of the religion claims and remand those claims to the district court to consider how the case should proceed.”

Therefore, on the grounds that a complete dismissal was not warranted under the existing law on state secrets, the Appeals Court remanded the case to the District Court.