Filed: Sep. 16, 2003
Latest Update: Mar. 02, 2020
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT _ No. 03-1420 _ Yoram Raz, * * Appellant, * * v. * Appeal from the United States * District Court for the Andy Lee, Sheriff of Benton County, * Western District of Arkansas. * Defendant, * * Robert M. Mueller, Director, Federal * [PUBLISHED] Bureau of Investigations, * * Appellee, * * Don Melton, Director, Arkansas * State Police, * * Defendant. * _ Submitted: August 7, 2003 Filed: September 16, 2003 _ Before RILEY, HANSEN, and SMITH, Circuit
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT _ No. 03-1420 _ Yoram Raz, * * Appellant, * * v. * Appeal from the United States * District Court for the Andy Lee, Sheriff of Benton County, * Western District of Arkansas. * Defendant, * * Robert M. Mueller, Director, Federal * [PUBLISHED] Bureau of Investigations, * * Appellee, * * Don Melton, Director, Arkansas * State Police, * * Defendant. * _ Submitted: August 7, 2003 Filed: September 16, 2003 _ Before RILEY, HANSEN, and SMITH, Circuit ..
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-1420
___________
Yoram Raz, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Andy Lee, Sheriff of Benton County, * Western District of Arkansas.
*
Defendant, *
*
Robert M. Mueller, Director, Federal * [PUBLISHED]
Bureau of Investigations, *
*
Appellee, *
*
Don Melton, Director, Arkansas *
State Police, *
*
Defendant. *
___________
Submitted: August 7, 2003
Filed: September 16, 2003
___________
Before RILEY, HANSEN, and SMITH, Circuit Judges.
___________
PER CURIAM.
Yoram Raz appeals the district court’s dismissal, on sovereign immunity
grounds, of his constitutional action, We reverse and remand.
Raz, a former Israeli citizen, filed a fee-paid complaint naming FBI Director
Robert Mueller in his official capacity and claiming the FBI violated his “most
fundamental Civil Rights.” According to Raz, the FBI continues to engage in what
has been a 15-year “campaign of Surveillance, Operations and harassment” against
him based on his “expression of certain unpopular political opinions” about the
Israeli-Arab conflict. Raz alleged FBI agents have placed monitoring stations near
his residence; stalk him on a regular basis; issue “ALERTS” to local law-enforcement
agencies so that he is immediately recognized wherever he goes; performed an illegal
search of his Louisiana home in October 1998; tapped his telephones and planted
electronic tracers in his car; have caused him to be ostracized by issuing “warnings”
to stores and other businesses he frequents; initiated rumors throughout the
community that Raz was a “spy” or “subversive element,” which resulted in
individuals breaking into his home, hog-tying him, and severely beating him; and
turned many of his acquaintances into spies working against him. Further, Raz
alleged the FBI’s surveillance activities caused him “stress” and “severe deterioration
of health and premature aging”; severely limited his “ability to make new
acquaintances and destroyed forever relationships between friends”; interfered with
his ability to re-marry and procreate as the ongoing surveillance scares away potential
dates; made it nearly impossible to find employment; forced him to relocate several
times; and caused him severe bodily injuries. Raz sought an injunction prohibiting
Director Mueller and the FBI from continuing their violations of his constitutional
rights.
Having reviewed the record and appellate briefs, we conclude the district court
should not have dismissed Raz’s fee-paid complaint based on sovereign-immunity
grounds. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (complaint should not be
dismissed for failure to state claim unless it appears beyond doubt that plaintiff can
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prove “no set of facts” in support of claim which would entitle him to relief); Rupp
v. Omaha Indian Tribe, 45 F.3d 1241, 1244 (8th Cir. 1995) (de novo review of
sovereign immunity).
We conclude that Raz’s cumulative allegations present justiciable claims under
the Constitution. See 28 U.S.C. § 1331 (district courts have jurisdiction over all civil
actions arising under Constitution); Anderson v. Davila, 125 F.3d 148, 160-63 (3d
Cir. 1997) (plaintiff stated viable claim against government where he alleged that
government engaged in surveillance of him in retaliation for his exercise of First
Amendment rights); Clark v. Library of Cong.,
750 F.2d 89, 91-99 (D.C. Cir. 1984)
(library worker investigated by FBI based solely on his political associations
presented justiciable claim where worker alleged investigation caused him to lose
employment opportunities). Further, the United States does not enjoy immunity from
Raz’s injunctive-relief action, because section 702 of the Administrative Procedure
Act (APA) expressly waives sovereign immunity as to any action for nonmonetary
relief brought against the United States. See 5 U.S.C. § 702 (action seeking relief
other than money damages should not be dismissed on grounds that it is brought
against United States); Black Hills Inst. of Geological Research v. S.D. Sch. of Mines
& Tech.,
12 F.3d 737, 740 (8th Cir. 1993) (citing Specter v. Garrett,
995 F.2d 404,
410 (3d Cir. 1993) (holding that § 702’s waiver of sovereign immunity is not limited
to cases brought under APA), rev’d on other grounds,
511 U.S. 462 (1994)), cert.
denied,
513 U.S. 810 (1994); Red Lake Band of Chippewa Indians v. Barlow,
846
F.2d 474, 476 (8th Cir. 1988) (§ 702 waiver is not dependent on application of APA;
§ 702 waiver is dependent only on suit being against government and being one for
nonmonetary relief); see also Presbyterian Church v. United States,
870 F.2d 518,
524-25 (9th Cir. 1989) (§ 702 waives sovereign immunity with respect to injunctive-
relief action arising directly under Constitution).
Accordingly, we reverse the judgment of the district court and remand for
further proceedings. We also deny the pending motion.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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