UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT YASSIR FAZAGA; ALI UDDIN No. 12-56867 MALIK; YASSER ABDELRAHIM, D.C. No. Plaintiffs-Appellees, 8:11-cv-00301- CJC-VBK v. FEDERAL BUREAU OF OPINION INVESTIGATION; CHRISTOPHER A. WRAY, Director of the Federal Bureau of Investigation, in his official capacity; PAUL DELACOURT, Assistant Director in Charge, Federal Bureau of Investigation’s Los Angeles Division, in his official capacity; PAT ROSE; KEVIN ARMSTRONG; PAUL ALLEN,

Defendants, and BARBARA WALLS; J. STEPHEN TIDWELL,

Defendants-Appellants, 2 FAZAGA V. FBI

YASSIR FAZAGA; ALI UDDIN No. 12-56874 MALIK; YASSER ABDELRAHIM, D.C. No. Plaintiffs-Appellees, 8:11-cv-00301- CJC-VBK v. FEDERAL BUREAU OF INVESTIGATION; CHRISTOPHER A. WRAY, Director of the Federal Bureau of Investigation, in his official capacity; PAUL DELACOURT, Assistant Director in Charge, Federal Bureau of Investigation's Los Angeles Division, in his official capacity; J. STEPHEN TIDWELL; BARBARA WALLS,

Defendants, and PAT ROSE; KEVIN ARMSTRONG; PAUL ALLEN,

Defendants-Appellants.

YASSIR FAZAGA; ALI UDDIN No. 13-55017 MALIK; YASSER ABDELRAHIM, D.C. No. Plaintiffs-Appellants, 8:11-cv-00301- CJC-VBK v. FAZAGA V. FBI 3

FEDERAL BUREAU OF INVESTIGATION; CHRISTOPHER A. WRAY, Director of the Federal Bureau of Investigation, in his official capacity; PAUL DELACOURT, Assistant Director in Charge, Federal Bureau of Investigation’s Los Angeles Division, in his official capacity; J. STEPHEN TIDWELL; BARBARA WALLS; PAT ROSE; KEVIN ARMSTRONG; PAUL ALLEN; UNITED STATES OF AMERICA,

Defendants-Appellees.

On Remand from the United States Supreme Court

Argued and Submitted June 8, 2023 Seattle, Washington

Filed December 20, 2024

Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and George Caram Steeh III, * District Judge.

Opinion by Judge Berzon

* The Honorable George Caram Steeh III, United States District Judge for the Eastern District of Michigan, sitting by designation. 4 FAZAGA V. FBI

SUMMARY **

Bivens / State Secrets Privilege

On remand from the United States Supreme Court in a case involving constitutional and statutory claims arising out of the FBI’s alleged improper surveillance of Muslims in Southern California, the panel (1) affirmed the district court’s dismissal of Bivens claims asserted by Yassir Fazaga and other Muslim residents of Southern California against individual defendants; and (2) reversed the district court’s dismissal, under the state secrets privilege, of Fazaga’s claims alleging that defendants improperly targeted Fazaga and other Muslims because of their religion. The panel held that Egbert v. Boule, 596 U.S. 482 (2022), foreclosed a Bivens remedy for any of Fazaga’s Bivens claims against FBI agents in their individual capacities. Applying Egbert, the panel concluded that no Bivens remedy was available for Fazaga’s First and Fifth Amendment claims because the claims arose in a new context and several factors weighed against expanding Bivens to reach Fazaga’s claims. For similar reasons, a Bivens remedy was not available for Fazaga’s Fourth Amendment claim. The remaining issue concerned the effect of the government’s assertion of the state secrets privilege under United States v. Reynolds, 345 U