Page Suit Dismissal Affirmed

The United States Court of Appeals for the District of Columbia Circuit affirmed the dismissal of Carter Page’s lawsuit against the Department of Justice and individual defendants

CHILDS, Circuit Judge: Carter W. Page appeals the district court’s dismissal of his second amended complaint for failure to state a claim. Page v. Comey, 628 F. Supp. 3d 103 (D.D.C. 2022). Page filed an action against the United States, the Department of Justice (DOJ), the Federal Bureau of Investigation (FBI), as well as current and former known and unknown FBI officials (individual defendants1) (collectively Appellees), alleging that the FBI unlawfully obtained four warrants to electronically surveil him pursuant to the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. §§ 18011885c, and that Appellees leaked to the press information obtained pursuant to those warrants, giving rise to liability under FISA and the Patriot Act. Page alleged that as the result of the public revelation of this unlawful surveillance he suffered reputational harm, pain and suffering, and lost lucrative business opportunities. Ultimately, the district court  dismissed Page’s claims, finding them either time-barred or insufficiently pleaded.

For the reasons below, we are unanimous in affirming dismissal of Page’s claims of unlawful surveillance under FISA (see 50 U.S.C. § 1809(a)(1)) on the ground that they are conclusively time-barred. We also unanimously affirm the dismissal of the Patriot Act claim against the United States, with the majority concluding that claim, too, is time-barred and the partial dissent resting instead on Page’s failure to preserve the claim and its legal insufficiency in any event. Finally, the majority concludes that Page’s claim of unlawful disclosure or use of the results of unlawful surveillance under FISA (see 50 U.S.C. § 1809(a)(2)) is also time-barred and, in part, insufficiently pleaded.

Judge Henderson dissents only insofar as she would have allowed Page’s section 1809(a)(2) disclosure-or-use claim to proceed. She parses that claim into distinct strands. She would hold, first, that the claim that certain defendants used FISAderived information to apply for ensuing warrant applications should not be dismissed as time-barred without first allowing discovery into whether, once Page knew he was subject to FISA warrants, he knew or reasonably should have inquired into FISA’s warrant-renewal requirements. On its merits, she explained, that claim was plausibly pleaded. Second, Judge Henderson analyzes Page’s media-leak theory as two distinct claims. The first, that media leaks by defendants Lisa Page and Peter Strzok led to publication of the fact that Carter Page was under FISA surveillance, she would dismiss for failure to state an unlawful-disclosure claim because Page’s identity and the fact of surveillance were not themselves information “obtained by” FISA surveillance. As to the second, Judge Henderson reads the complaint to support a reasonable inference that those two leakers also disclosed FISA-acquired information that the newspapers decided not to mention. She therefore discerns an unlawful-disclosure claim against the pair that she would deem timely.

From the dissent

FISA’s grand bargain was struck after the public learned of an array of intelligence scandals involving the Executive’s rampant and lawless spying on American citizens. The enacting Congress aimed to subject the President’s unbridled surveillance authority to the oversight of the other two branches and, in exchange, surveillance was allowed to take place away from the public eye. At the core of this bargain were FISA’s warrant procedures. Yet, as this case makes shockingly clear, those procedures have proven inadequate.

From start to finish, the FISA process was marred by governmental omissions and commissions that led a pliant court to authorize surveillance on an American citizen. FISA’s requirements may sometimes prove difficult to satisfy but disregarding them is the gateway to naked violations of our civil liberties. I take some solace in the knowledge that the Government’s egregious conduct roused the Congress to action. In response to this very case, it amended FISA to increase oversight and impose new penalties on individuals who crash FISA’s guardrails. See Reforming Intelligence and Securing America Act, Pub. L. No. 118-49, 138 Stat. 862 (2024). Alas, this is cold comfort to Page. Nevertheless, I believe that Page’s first FISA claim is untimely and his Patriot Act claim is both forfeited and fails on the merits. I therefore join my colleagues in affirming the dismissal of those claims but I would give Page his day in court on his claim brought pursuant to 50 U.S.C. § 1809(a)(2). With regard to that claim, I respectfully dissent.

(Mike Frisch)