The D.C. Circuit published two opinions last week. Page v. Comey addressed an already-reported on lawsuit in which Carter Page, an advisor to Donald Trump’s 2016 presidential campaign, alleged that the FBI unlawfully surveilled him and damaged his reputation by leaking information to the press. In 2022, the district court dismissed his complaint for failure to state a claim. The D.C. Circuit affirmed the dismissal, with Judge Childs, who was joined by Judge Pillard, writing for the court. Judge Henderson concurred in part and dissented in part.

For the most part, the disagreement was about the grounds of dismissal of Page’s claims. The panel unanimously agreed that the claims of unlawful surveillance under the Foreign Intelligence Surveillance Act (FISA) were time barred. One disagreement was about whether to dismiss the disclosure-or-use claim under FISA. The other was about the reasons to dismiss the Patriot Act claim. 

As the majority saw it, the key facts were that Page knew all he needed to know “by spring of 2017,” when he was quoted in the press about the allegedly unlawful surveillance. The relevant requirement of FISA was “readily available public information—especially to a person like Carter Page with multiple advanced degrees and prior interest in CIA operations.” For Judge Henderson, “[f]rom start to finish, the FISA process [in this case] was marred by governmental omissions and commissions that led a pliant court to authorize surveillance on an American citizen,” a failure so serious that Congress responded by amending FISA.

The statute of limitations issue under FISA presented an interesting question about whether to apply a state law limitations period and, if so, which state law would be analogous. FISA does not state a limitations period for its civil cause of action. The D.C. Circuit did not decide what the statute of limitations was for Page’s FISA claims, instead assuming for purposes of analysis that the most generous option, contained in “D.C. law’s three-year statute of limitations for ‘actions . . . for which a limitation is not otherwise specifically prescribed,’” applied to the claims. Federal law controlled the timing of the accrual of claims, and under the federal timing rule, the Court held that the claims accrued more than three years before the original complaint. 

The majority and the dissent disagreed about the disclosure-or-use claim under FISA. Judge Childs and Judge Pillard held that the complaint did not state “a distinct,” timely claim based upon a disclosure-or-use theory. Judge Henderson argued that the “strict standard” for dismissing a complaint on statute of limitations grounds was not met because the “record [was] riddled with doubts” about the facts relevant to accrual. And, on the merits, Judge Henderson reasoned that the disclosure-or-use theory was plausibly pled as to multiple individual defendants. 

Turning to the Patriot Act claim, the Court concluded that the Patriot Act limitations period in 18 U.S.C. 2712(b)(2) should be interpreted similarly to an “identically worded provision in the [Federal Tort Claims Act],” 28 U.S.C. 2401(b). Under that interpretation, “Page was required to present his Patriot Act claim to the FBI within two years after the claim accrued and file the resulting lawsuit within six months after notice of the FBI’s denial of the claim.” And because Page had not filed his administrative claim within the two-year window, it had to be dismissed. Judge Henderson agreed that the Patriot Act claim should be dismissed but not because of the statute of limitations; instead, she would have held that Page forfeited that claim and, “in any event, [it was] without merit.”

In the second published opinion of last week, United States v. Campos, the D.C. Circuit affirmed a criminal conviction for various drug-related crimes, rejecting various criminal-procedure challenges.