CA9: 4A issues in “travel ban” case: expungement of records unconstitutionally obtained is a remedy

“Addressing plaintiffs’ Fourth Amendment search claims, the panel first held that the expungement relief sought by plaintiffs — the expungement of all records unconstitutionally obtained and maintained — was available under the Constitution to remedy the alleged constitutional violations. Because the government raised no other argument for dismissal of the Fourth Amendment injunctive relief claim, it should not have been dismissed. Second, the panel held that in light of the overlap between plaintiffs’ Bivens claim and the narrow range of the remaining FISA claims against the Agent Defendants that can proceed, it was not clear whether plaintiffs would continue to press this claim. The panel declined to address whether plaintiffs’ Bivens claim remained available after the Supreme Court’s decision in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), and held that on remand the district court may determine whether a Bivens remedy is appropriate for any Fourth Amendment claim against the FBI Agent Defendants.” Fazaga v. FBI, 2020 U.S. App. LEXIS 22775 (9th Cir. July 20, 2020).

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