FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT NORA PHILLIPS; ERIKA No. 21-55768 PINHEIRO; NATHANIEL DENNISON, D.C. No. 2:19-cv-06338- Plaintiffs-Appellants, SVW-JEM v. OPINION U.S. CUSTOMS AND BORDER PROTECTION; MARK MORGAN; UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT; MATTHEW ALBENCE; FEDERAL BUREAU OF INVESTIGATION; CHRISTOPHER WRAY, Defendants-Appellees. Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding Argued and Submitted February 9, 2023 Pasadena, California Filed July 21, 2023 2 PHILLIPS V. U.S. CUSTOMS & BORDER PROT. Before: Mary M. Schroeder, Richard C. Tallman, and Sandra S. Ikuta, Circuit Judges. Opinion by Judge Ikuta; Concurrence by Judge Schroeder SUMMARY* Standing The panel affirmed the district court’s summary judgment in favor of the government in an action seeking to expunge plaintiffs’ records that were created by several federal agencies as part of a surveillance program. The surveillance program gathered information on individuals that the agencies believed were associated with a migrant caravan approaching the southern border of the United States. The panel held that the retention of the allegedly illegally obtained records at issue, without more, did not give rise to a concrete injury necessary for standing, and plaintiffs had not shown that the retention gave rise to any other sort of harm that constituted a concrete injury. The panel rejected plaintiffs’ central argument that the government’s retention of illegally obtained information about them was per se an injury-in-fact. Under Supreme Court precedent, the retention of records alone does not constitute a concrete injury, and plaintiffs must assert that * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. PHILLIPS V. U.S. CUSTOMS & BORDER PROT. 3 such retention gives rise to a tangible harm or material risk of future tangible harm or bears a close relationship to harms traditionally recognized as providing a basis for lawsuits in American courts. The panel rejected plaintiffs’ alternative argument that the government’s retention of records allegedly obtained in violation of their First and Fourth Amendment rights constituted a concrete and ongoing injury under that framework. The evidence did not show that the government was using or will use the records to investigate plaintiffs or prevent them from crossing the border or that a third party will obtain the records and use them to plaintiffs’ detriment. Plaintiffs had not shown that retention of the type of information contained in the records could give rise to a common law tort claim. Finally, plaintiffs failed to explain (or identify supporting authority) why retention of the records was an ongoing violation of their constitutional rights. Concurring, Judge Schroeder observed that plaintiffs did not challenge any governmental conduct in obtaining the underlying information. Nor could they, because the information came from publicly available sources or existing law enforcement databases. 4 PHILLIPS V. U.S. CUSTOMS & BORDER PROT. COUNSEL Mohammad Tajsar (argued), ACLU Foundation of Southern California, Los Angeles, California; R. Alexander Pilmer, Kirkland and …
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Source: All recent Immigration Decisions In All the U.S. Courts of Appeals