Carter Page v. James B. Comey

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 6, 2024 Decided May 23, 2025
No. 23-5038
C ARTER P AGE,
APPELLANT
v.
J AMES B. C OMEY, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cv-03460)
Gene C. Schaerr argued the cause for appellant. With him
on the briefs were Erik S. Jaffe and Brian J. Field.
David N. Kelley argued the cause for individual appellees.
With him on the brief were Meaghan VerGow, Andrew R.
Hellman, Meredith N. Garagiola, Daniel Brovman, Brigida
Benitez, Patrick F. Linehan, Brian M. Heberlig, Robert J.
Katerberg, Kaitlin Konkel, Christopher C. Muha, Aitan D.
Goelman, Ivano M. Ventresca, Joseph R. Palmore, James M.
Koukios, and Alexandra M. Avvocato.

-- 1 of 65 --

2
Benjamin M. Shultz, Attorney, U.S. Department of Justice,
argued the cause for government appellees. With him on the
brief were Brian M. Boynton, Principal Deputy Assistant
Attorney General, at the time the brief was filed, and Sharon
Swingle, Attorney.
Before: HENDERSON, P ILLARD, and C HILDS , Circuit
Judges.
Opinion for the Court filed by Circuit Judge C HILDS .
Opinion concurring in part and dissenting in part filed by
Circuit Judge HENDERSON.
C HILDS , Circuit Judge: Carter W. Page appeals the district
court’s dismissal of his second amended complaint for failure
to state a claim. Page v. Comey, 628 F. Supp. 3d 103 (D.D.C.
2022). Page filed an action against the United States, the
Department of Justice (DOJ), the Federal Bureau of
Investigation (FBI), as well as current and former known and
unknown FBI officials (individual defendants1) (collectively
Appellees), alleging that the FBI unlawfully obtained four
warrants to electronically surveil him pursuant to the Foreign
Intelligence Surveillance Act (FISA), 50 U.S.C. §§ 1801–
1885c, and that Appellees leaked to the press information
obtained pursuant to those warrants, giving rise to liability
under FISA and the Patriot Act. Page alleged that as the result
of the public revelation of this unlawful surveillance he
suffered reputational harm, pain and suffering, and lost
lucrative business opportunities. Ultimately, the district court
1 In the second amended complaint, Page identified as individual
defendants James Comey, Andrew McCabe, Kevin Clinesmith, Peter
Strzok, Lisa Page, Joe Pientka III, Stephen Somma, Brian J. Auten,
John Does 1–10, and Jane Does 1–10.

-- 2 of 65 --

3
dismissed Page’s claims, finding them either time-barred or
insufficiently pleaded.
For the reasons below, we are unanimous in affirming
dismissal of Page’s claims of unlawful surveillance under FISA
(see 50 U.S.C. § 1809(a)(1)) on the ground that they are
conclusively time-barred. We also unanimously affirm the
dismissal of the Patriot Act claim against the United States,
with the majority concluding that claim, too, is time-barred and
the partial dissent resting instead on Page’s failure to preserve
the claim and its legal insufficiency in any event. Finally, the
majority concludes that Page’s claim of unlawful disclosure or
use of the results of unlawful surveillance under FISA (see 50
U.S.C. § 1809(a)(2)) is also time-barred and, in part,
insufficiently pleaded.
Judge Henderson dissents only insofar as she would have
allowed Page’s section 1809(a)(2) disclosure-or-use claim to
proceed. She parses that claim into distinct strands. She would
hold, first, that the claim that certain defendants used FISA-
derived information to apply for ensuing warrant applications
should not be dismissed as time-barred without first allowing
discovery into whether, once Page knew he was subject to
FISA warrants, he knew or reasonably should have inquired
into FISA’s warrant-renewal requirements. On its merits, she
explained, that claim was plausibly pleaded. Second, Judge
Henderson analyzes Page’s media-leak theory as two distinct
claims. The first, that media leaks by defendants Lisa Page and
Peter Strzok led to publication of the fact that Carter Page was
under FISA surveillance, she would dismiss for failure to state
an unlawful-disclosure claim because Page’s identity and the
fact of surveillance were not themselves information “obtained
by” FISA surveillance. As to the second, Judge Henderson
reads the complaint to support a reasonable inference that those
two leakers also disclosed FISA-acquired information that the

-- 3 of 65 --

4
newspapers decided not to mention. She therefore discerns an
unlawful-disclosure claim against the pair that she would deem
timely.
I.
A.
In this appeal from an order granting a motion to dismiss
for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6), the relevant facts are those “alleged in the
complaint, any documents either attached to or incorporated in
the complaint and matters of which [the court] may take
judicial notice.” Hurd v. District of Columbia, Gov’t, 864 F.3d
671, 678 (D.C. Cir. 2017) (quoting EEOC v. St. Francis Xavier
Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997)). Unless
otherwise noted, the following background is derived from
Page’s second amended complaint.
“During the 2016 U.S. Presidential election,” Page
volunteered as a “member of an informal foreign policy
advisory committee to then-candidate Donald J. Trump’s
election campaign.” 2d Am. Compl. ¶ 21 (JA027). Page
alleged that on July 31, 2016, he became the target of an FBI
surveillance program called Operation Crossfire Hurricane.
The purpose of Crossfire Hurricane was “to determine whether
‘individual(s) associated with the Trump campaign [we]re
witting of and/or coordinating activities with the Government
of Russia.’” Id. ¶ 5 (JA022).
In August 2016, the Central Intelligence Agency (CIA)
informed members of the Crossfire Hurricane team that Page
had been a CIA “operational contact” from 2008 to 2013,
assisting in countering Russian and other foreign intelligence
activity. Id. ¶ 11 (JA023). Several weeks later, the CIA sent

-- 4 of 65 --

5
an investigative referral to FBI Director James Comey
(Comey) and Deputy Assistant Director of Counterintelligence
Peter Strzok (Strzok) conveying that presidential candidate
“Hillary Clinton had approved a plan concerning U.S.
Presidential candidate Donald Trump and Russian hackers
hampering U.S. elections as a means of distracting the public
from her use of a private mail server.” Id. ¶¶ 12, 167 (JA024,
JA054–JA055). A few weeks later, on September 19, 2016,
the FBI received information from Christopher Steele, a
Confidential Human Source, that “falsely alleged unlawful
communications and activities involving . . . Page and two
Russians with close ties to Russian President Vladimir Putin.”
Id. ¶¶ 9, 14 (JA023–JA024). However, the CIA had identified
this information from Steele as possibly containing false
allegations. In addition, the FBI became aware of several other
facts that raised questions regarding Steele’s credibility,
including: (1) that the Democratic Party and/or the Clinton
campaign supposedly paid Steele to perform “political
opposition research,” and (2) that the CIA had reportedly
warned the FBI of a “potential political scheme” involving a
disinformation effort to report a connection between the Trump
campaign and Russia. Id. ¶¶ 9, 15, (JA023, JA025). Steele
eventually provided similar information to public news media
regarding the investigation.
On September 23, 2016, Michael Isikoff published an
article in Yahoo! News titled “U.S. intel officials probe ties
between Trump adviser and Kremlin.” Michael Isikoff, U.S.
intel officials probe ties between Trump adviser and Kremlin,
Yahoo! News (Sept. 23, 2016), https://perma.cc/T2GE-M22D.
The article stated that in July 2016, Page “[spoke] at a
commencement address for the New Economic School, an
institution funded in part by major Russian oligarchs close to
Putin.” Id. Additionally, the article stated that “U.S.
intelligence agencies ha[d] also received reports that Page met

-- 5 of 65 --

6
with another top Putin aide while in Moscow—Igor Diveykin.”
Id. “In response to [this] article, on September 25, 2016, . . .
Page sent a letter to . . . Comey in which he categorically denied
that he had any such communications with the Russian
individuals and documented his previous cooperation with the
CIA and the FBI to combat Russian spying.” 2d Am. Compl.
¶¶ 15, 81 (JA025, JA039). Upon the receipt and sharing of
Page’s letter with the Crossfire Hurricane team the following
day, Strzok wrote to FBI lawyer Lisa Page that “[a]t a
minimum, the letter provides [the team] a pretext to interview”
Page. Id. ¶ 147 (JA051).
On October 21, 2016, the FBI submitted its first FISA
warrant application to the Foreign Intelligence Surveillance
Court (FISC), relying on the Yahoo! News article and other
allegedly false and misleading information. Under 50 U.S.C.
§ 1805(a)(2)(A), the FISC has authority to issue orders for
electronic surveillance when presented with evidence that there
is probable cause to believe that a target is an “agent of a
foreign power.”
After a second FISA warrant application had been
submitted on January 12, 2017, two FBI agents—one of whom
was individual defendant Stephen Somma—conducted an
“ambush interview” of Page, followed by four additional
interviews in March 2017. 2d Am. Compl. ¶¶ 122, 210 (JA047,
JA063). In total, the five interviews lasted roughly ten hours.
Page opines that he “was candid and cooperative with the
agents, and his answers undermined any contention that he was
acting as an agent of a foreign power.” Id. ¶¶ 122, 210 (JA047,
JA063). On April 7, 2017, the FBI submitted a third FISA
warrant application to continue its surveillance of Page.
A few days later, on April 10, 2017, Strzok purportedly
texted Lisa Page to devise a plan to leak information about the

-- 6 of 65 --

7
Crossfire Hurricane investigation to the news media. The
following day, the Washington Post published a story entitled,
“FBI obtained FISA warrant to monitor former Trump adviser
Carter Page.” JA095–JA100; see also 2d Am. Compl. ¶ 221
(JA068). The article, which reported on information provided
by “law enforcement and other U.S. officials” who “were not
authorized to discuss details of a counterintelligence probe,”
stated that “[t]he FBI and the Justice Department obtained [a]
warrant targeting Carter Page’s communications after
convincing a Foreign Intelligence Surveillance Court judge
that there was probable cause to believe Page was acting as an
agent of a foreign power, in this case Russia.” JA095; 2d Am.
Compl. ¶ 221(a) (JA068).
The Washington Post story quoted Page as saying that
“[t]his confirms all of my suspicions about unjustified,
politically motivated government surveillance” and that “[he]
ha[s] nothing to hide.” JA096. According to the Post, Page
“compared surveillance of him to the eavesdropping that the
FBI and Justice Department conducted against civil rights
leader Martin Luther King Jr.” Id. Page “dismissed what he
called ‘the dodgy [Steele] dossier’ of false allegations” and
maintained that he wanted to testify before Congress to clear
his name, JA98, because any information he provided to the
Russians was “innocuous,” i.e., “basic immaterial information
and publicly available research documents.” JA100. Page also
stated in his defense that he had assisted the government in an
earlier espionage case against a Russian national.
Ten days later, on April 22, 2017, the New York Times
published an article entitled “Comey Tried to Shield the F.B.I.
From Politics. Then He Shaped an Election.” Matt Apuzzo,
Michael S. Schmidt, Adam Goldman, and Eric Lichtblau,
Comey Tried to Shield the F.B.I. From Politics. Then He
Shaped an Election, N.Y. TIMES (Apr. 22, 2017),

-- 7 of 65 --

8
https://perma.cc/YC6A-UGBY. The New York Times article
focused on the investigation of Hillary Clinton’s emails. The
article mentioned Page, stating that he “gave a speech in
Moscow criticizing American foreign policy” and that he “had
previously been under F.B.I. scrutiny years earlier, as he was
believed to have been marked for recruitment by Russian
spies.” 2d Am. Compl. ¶ 224(a) (JA069). This was the Times
article’s only explicit reference to Page.
On April 27, 2017, Page was interviewed by former CNN
news anchor Chris Cuomo, wherein Page acknowledged
having read both the Washington Post and the New York Times
articles. Page v. Comey, Case No. 1:20-cv-03460, ECF No.
88-10, at 9 (D.D.C. Sept. 17, 2021). In response to questioning
regarding whether the FBI had probable cause to surveil him,
Page expressed his eagerness to obtain full disclosure about the
warrant applications because “there [had] been terrific
reporting in various news outlets, including ‘[the] Washington
Post’, [and] ‘[the] New York Times’ based on various leaks
and some of them have exactly pointed back to that dodgy
dossier.” Id.
Approximately a month later, on May 22, 2017, Page
again acknowledged and explicitly cited to the Washington
Post article in a letter to Congressmen K. Michael Conaway
and Adam Schiff, responding to a request to voluntarily appear
before the United States House of Representatives Permanent
Select Committee on Intelligence (House Intelligence
Committee).2 In the letter, Page stated that the Clinton
campaign had engaged in illegal activities and leaks, and he
could “help set the record straight . . . following the false
evidence, other illegal activities as well as additional extensive
lies distributed by the Clinton campaign and their transnational
2 The Joint Appendix only contains three pages from Carter’s twenty-
three-page submission.

-- 8 of 65 --

9
associates.” JA101. Page referenced the “unfortunate front-
page Washington Post article about the civil rights abuses
committed against me which you might have seen:
‘Applications for FISA warrants’ . . . filled with a potpourri of
falsehoods from the Clinton/Obama regime which fabricated
this travesty from the outset.” JA102.
Page’s letter welcomed the invitation to testify before the
House Intelligence Committee on the “civil rights injustices”
against him. He informed the Committee that public access to
the FISA warrants in advance of his testimony would be
“essential” to dispel “the continued delusional charade
regarding Russia’s connections with the new Administration.”
JA102–JA103. Page contrasted the “proper legal procedures
of disclosure currently underway” with the “recent misleading
illegal leaks,” plainly referring to the government leaks
reported in the Washington Post article. JA 101. Thereafter,
on June 29, 2017, the FBI submitted the fourth and final FISA
warrant application.
On November 2, 2017, Page testified before the House
Intelligence Committee. Page stated that he was a victim of
two felonies: the leaking of both his identity and classified
information in relation to the FISA warrant documented in the
Washington Post article. Testimony of Carter Page: Hearing
Before the Permanent Select Comm. on Intelligence, 115th
Cong. (2017) (Page Testimony), https://perma.cc/74C9-RWZ9
at 16–17, 21–22. During his testimony, Page referenced the
surveillance activities taken against him by the FBI. In his
opening statement, Page stated that “the alleged U.S. cyber
operations of wiretap against myself . . . marked a new low with
this baseless domestic interference in our democracy prior to
the 2016 election.” Id. at 35. Page further observed that
although neither he nor the Committee “kn[e]w the details
about how [he] was illegally hacked and wiretapped,” they

-- 9 of 65 --

10
should “soon” learn the information because of his and the
Committee’s requests for information. Id. During questioning
by Congressman Gowdy, Page again referenced the
Washington Post article, stating that someone leaked his
interviews with the FBI to the Post. Id. at 59. Page’s
congressional testimony also incorporated his May 22, 2017
letter in which he observed that “[b]ased on revelations in the
press thus far, [he] was the primary known person allegedly put
under the most intensive surveillance by the Obama
Administration as part of their 2016 domestic political
intelligence operation.” Id. at 15.
In March 2018, the DOJ’s Office of Inspector General
(OIG) initiated a review of the FBI’s surveillance of Page. The
OIG published a report on December 9, 2019, in which it
observed that the FBI’s factual misstatements and omissions
regarding Page “taken together resulted in FISA applications
that made it appear that the information supporting probable
cause was stronger than was actually the case.” OIG, Review
of Four FISA Applications and Other Aspects of the FBI’s
Crossfire Hurricane Investigation (Dec. 2019),
https://perma.cc/8TGE-VGTK at xiii.
B.
On November 27, 2020, Page filed a complaint in the
United States District Court for the District of Columbia,
alleging eight causes of action, including four claims of FISA
violations against the individual defendants; one claim against
individual defendants seeking damages under Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388 (1971); one claim against the United States under the
Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671–2680;
one claim against the DOJ for violating the Privacy Act, 5
U.S.C. § 552a; and one claim against both the FBI and DOJ for

-- 10 of 65 --

11
violating the Privacy Act. Page amended his complaint on
April 15, 2021, but did not make any substantive changes to his
allegations. After attempting to comply with mandatory
prerequisites,3 Page filed a second amended complaint on June
8, 2021, adding a claim against the United States for a violation
of the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (Patriot Act), 18 U.S.C. § 2712.
On September 17, 2021, each of the individual defendants
separately moved to dismiss Page’s FISA and Bivens claims.
That same day, the United States, the FBI, and the DOJ moved
to dismiss the FTCA, Privacy Act, and Patriot Act claims.
C.
In the district court, Appellees sought to dismiss Page’s
second amended complaint on the grounds that his claims were
time-barred by the statute of limitations and that he failed to
state a claim upon which relief may be granted. Page, 628 F.
Supp. 3d at 115. The United States also moved to dismiss
Page’s FTCA claim and one of his Privacy Act claims on the
basis that the district court lacked jurisdiction over them. Id.
In addressing whether Page’s FISA claims were time-barred,
the district court found that a three-year general statute of
limitations under D.C. law was applicable due to FISA’s
silence on the issue. Id. at 116–17. Notwithstanding its finding
that “by April 11, 2017, Page knew that he was subject to
surveillance by the FBI and DOJ,” id. at 118, the district court
held that in the context of the discovery rule, “it is far from
clear that a diligent investigation would have revealed enough
3 Seeking to exhaust his administrative remedies under the Patriot
Act pursuant to 18 U.S.C. § 2712(b)(1), Page presented an
administrative claim to the DOJ on September 30, 2020, which it
denied on April 22, 2021.

-- 11 of 65 --

12
evidence of illegality to avoid filing suit on a hunch.” Id. at
119 (internal quotation marks and brackets omitted).
For the same reasons, the district court declined to dismiss
Page’s Bivens and Patriot Act claims on statute of limitations
grounds. Id. at 129, 134. Instead, the district court disposed of
Page’s FISA and Patriot Act claims on the basis that Page
failed to plead sufficient facts to state a plausible claim for
relief. Id. at 129, 134. The district court dismissed Page’s
Bivens claim holding that “an extension of the Bivens remedy
to this new context is unwarranted.” Id. at 129 (internal
quotation marks omitted). As to Page’s Privacy Act claims, the
district court found that Page “has neither exhausted his
administrative remedies nor filed a timely claim.” Id. at 140.
The district court dismissed Page’s remaining Patriot Act and
abuse of process claims on the grounds that he failed to state a
claim under the Patriot Act and that his abuse of process claim
“is not cognizable under D.C. law.” Id.
Page timely appealed dismissal of his FISA claims and his
Patriot Act claim.
II.
We have appellate jurisdiction pursuant to 28 U.S.C.
§ 1291. “We review the district court’s dismissal de novo and
may affirm its judgment on any basis supported by the record.”
Elec. Priv. Info. Ctr. v. IRS, 910 F.3d 1232, 1236 (D.C. Cir.
2018) (citation omitted). On de novo review, we generally take
as true all plausibly pleaded factual allegations and draw all
reasonable inferences in the plaintiff’s favor. See, e.g.,
Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012).

-- 12 of 65 --

13
III.
Appellees contend that Page did not timely file his claims
in accordance with the applicable statutes of limitation. Upon
its review, the district court determined that “the complaint does
not conclusively show that Page was sufficiently on notice of
his claims before November 27, 2017.” Page, 628 F. Supp. 3d
at 119. On de novo review, we hold that Page’s second amended
complaint on its face is conclusively time-barred.
A.
“Limitations periods are intended to put defendants on
notice of adverse claims and to prevent plaintiffs from sleeping
on their rights.” Crown, Cork & Seal Co., Inc. v. Parker, 462
U.S. 345, 352 (1983). Accordingly, statutes of limitations
“afford[] plaintiffs what the legislature deems a reasonable
time to present their claims [while simultaneously] protect[ing]
defendants and the courts from having to deal with cases in
which the search for truth may be seriously impaired by the loss
of evidence, . . . fading memories, disappearance of documents,
or otherwise.” United States v. Kubrick, 444 U.S. 111, 117
(1979) (citations omitted).
At the motion to dismiss stage under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, “dismissal is appropriate on
statute of limitations grounds ‘only if the complaint on its face
is conclusively time-barred.’” Commonwealth Land Title Ins.
Co. v. KCI Techs., Inc., 922 F.3d 459, 464 (D.C. Cir. 2019)
(citation omitted). This face-of-the-complaint principle,
although rarely explained, limits a court’s consideration to
materials properly before it. In this Circuit, a “court may
consider the facts alleged in the complaint, [and] documents
attached thereto or incorporated therein, . . . .” Stewart v. Nat’l
Educ. Ass’n, 471 F.3d 169, 173 (D.C. Cir. 2006). The

-- 13 of 65 --

14
incorporation-by-reference doctrine “permits courts to
consider documents not attached to a complaint if they are
‘referred to in the complaint and integral to the plaintiff’s
claim.’” Real World Media LLC v. Daily Caller, Inc., No. CV
23-1654, 2024 WL 3835351, at *3 (D.D.C. Aug. 14, 2024)
(quoting Banneker Ventures, LLC v. Graham, 798 F.3d 1119,
1133 (D.C. Cir. 2015) (cleaned up)). Additionally, a court may
consider those portions of “documents upon which the
plaintiff’s complaint necessarily relies even if the document is
produced not by the plaintiff in the complaint but by the
defendant in a motion to dismiss.” Terveer v. Billington, 34 F.
Supp. 3d 100, 110 (D.D.C. 2014) (quoting Ward v. D.C. Dep’t
of Youth Rehab. Servs., 768 F. Supp. 2d 117 (D.D.C. 2011)).
A court may also consider “matters of which it may take
judicial notice,” Stewart, 471 F.3d at 173, because that
information “is not subject to reasonable dispute,” Fed. R.
Evid. 201(b). Courts have acknowledged the appropriateness
of taking judicial notice of the public availability of newspaper
articles and the existence of specified congressional testimony.
E.g., Washington Post v. Robinson, 935 F.2d 282, 291 (D.C.
Cir. 1991) (“This court may take judicial notice of the existence
of newspaper articles in the Washington, D.C., area . . . .”);
Muller-Paisner v. TIAA, 289 F. App’x 461, 466 n.5 (2d Cir.
2008) (“[C]ongressional testimony is an appropriate subject for
judicial notice as a public record for the fact that the statements
were made.”).
Therefore, for purposes of our de novo review of the
district court’s decision dismissing Page’s FISA and Patriot
Act claims, we consider not only the allegations of the second
amended complaint, but also the publication of the April 11,
2017 Washington Post article, the April 22, 2017 New York
Times article, and his November 2, 2017 testimony before the
House Intelligence Committee, which transcript included

-- 14 of 65 --

15
Page’s May 22, 2017 letter to Congressmen Conaway and
Schiff. To determine if Page’s claims are time-barred, we must
assess, first, the applicable limitations period, and second, the
time at which his claims accrued.
B.
Page’s FISA claims center on four warrant applications
submitted to the FISC, which he alleges the FBI knowingly
supported with insufficient evidence. “FISA is concerned with
foreign intelligence surveillance.” United States v. Belfield,
692 F.2d 141, 148 (D.C. Cir. 1982). “The statute is meant to
‘reconcile national intelligence and counterintelligence needs
with constitutional principles in a way that is consistent with
both national security and individual rights.’” Id. (quoting S.
Rep. No. 95–701, 95th Cong., 2d Sess. 16 (1978)). FISA
ensures individual privacy “‘through its provisions for in-depth
oversight . . . by all three branches of government and . . . an
expanded conception of minimization that differs from that
which governs law-enforcement surveillance.’” Id. (quoting
Allan S. Schwartz, Oversight of Minimization Compliance
Under the Foreign Intelligence Surveillance Act: How the
Watchdogs Are Doing Their Job, 12 Rutgers L.J. 405, 408
(1981)). Section 110 of FISA (50 U.S.C. § 1810) creates civil
liability for individuals who violate Section 1809 by engaging
in unauthorized surveillance and/or disclosing/using the
information so obtained. 50 U.S.C. § 1809(a).
The district court correctly noted that “FISA’s civil cause
of action does not contain a statute of limitations.” Page, 628
F. Supp. 3d at 116. Generally, “[w]hen a federal action
contains no statute of limitations, courts will ordinarily look to
analogous provisions in state law as a source of a federal
limitations period.” Loumiet v. United States, 828 F.3d 935,
947 (D.C. Cir. 2016) (quoting Doe v. DOJ, 753 F.2d 1092,

-- 15 of 65 --

16
1114–15 (D.C. Cir. 1985)); see also Richards v. Mileski, 662
F.2d 65, 68 (D.C. Cir. 1981) (“In this instance, as no specific
statute of limitations has ever been enacted by Congress for
such claims, the appropriate local statute of limitations is
borrowed.”). The individual defendants contend that the
appropriate limitations period is found either in D.C.’s one-
year statute of limitations for libel and invasion of privacy, or
in the two-year statute of limitations set forth in the Wiretap
Act and the Stored Communications Act—two federal laws
that, like FISA, regulate surveillance. See D.C. Code § 12-
301(4); 18 U.S.C. §§ 2707(f) [Stored Communications Act],
2520(e) [Wiretap Act]. Page maintains that the analogous
limitations period is instead found in D.C.’s three-year statute
of limitations for “actions . . . for which a limitation is not
otherwise specifically prescribed.” D.C. Code § 12-301(a)(8)
(emphasis added). Though recognizing the contrary inclination
of our partially dissenting colleague, Partial Dissent at 13–14,
we assume without deciding that the longer period applies
because Page’s FISA claims accrued before November 27,
2017—more than three years before he filed his November 27,
2020 complaint—and are therefore barred under even the most
generous of the potentially applicable limitations periods.
“State law dictates the statute of limitations, but the timing
of the accrual of . . . claims is a question of federal law.”
Loumiet, 828 F.3d at 947. “In federal courts ‘the general rule
of accrual’ in cases in which the injury is ‘not of the sort that
can readily be discovered when it occurs’ is that a cause of
action accrues and the limitations period begins to run only
when ‘the plaintiff discovers, or with due diligence should have
discovered, the injury that is the basis of the action.’” Sprint
Commc’ns Co. v. FCC, 76 F.3d 1221, 1226 (D.C. Cir. 1996)
(quoting Connors v. Hallmark & Son Coal Co., 935 F.2d 336,
341–42 (D.C. Cir. 1991)). Importantly, accrual is not delayed
just because the plaintiff does not yet have “access to or

-- 16 of 65 --

17
constructive knowledge of all the facts required to support [a]
claim.” Id. at 1228 (emphasis added).
In Hobson v. Wilson we held that, when a claim is
fraudulently concealed, its limitation period begins to run at the
time the claimants have reason to know of both their injury and
the unlawfulness of the defendant’s conduct. 737 F.2d 1, 33–
41 (D.C. Cir. 1984). There, we observed that plaintiffs were
put on sufficient notice more than three years before they sued
when they read an article describing an unlawful FBI
investigation of which they knew or had reason to know they
were targets. Id. at 38–39. We explained that if plaintiffs either
simply read the article about an unlawful FBI scheme or simply
knew of an FBI investigation targeting them without any
reason to think it was unlawful, the information would not
suffice to provide notice of their claims. Id. at 38–39.
However, we emphasized that in reading the article describing
the FBI investigation as unlawful and knowing they were the
subjects of that investigation, the Hobson plaintiffs had enough
“timely information to claim that they were victims of
unconstitutional FBI activities.” Id.
Page does not contest that, by April 11, 2017—the
publication date of the Washington Post article describing the
FBI’s surveillance of Page and quoting Page’s description of
the surveillance as “unjustified” and “politically motivated”—
he “knew that he was subject to surveillance by the FBI and
DOJ, and he suspected that the allegations, and the ensuing
warrants, were baseless.” Page, 628 F. Supp. 3d at 118.
Nonetheless, Page contends that his claims did not accrue until
he received confirmation from the OIG report that the warrants
contained significant errors.
Our precedent does not require a plaintiff to have access to
a warrant’s supporting affidavit before claim accrual starts. In

-- 17 of 65 --

18
Richards v. Mileski, we held that it was “irrelevant” to consider
when the government agency would have made relevant
documents available to the plaintiff; instead, we concluded that
“[t]he test of due diligence measures the plaintiff’s efforts to
uncover his cause of action against what a reasonable person
would have done in his situation given the same information.”
662 F.2d at 71 (emphasis added). In Sprint Communications
Company v. FCC, we explained that once a prospective
plaintiff is put on notice that they may have an actionable
claim, they are “required to make a diligent inquiry into the
facts and circumstances that would support th[e] claim.” 76
F.3d at 1228. Finally, in Sparshott v. Feld Entertainment, Inc.,
we held that “there is no need that someone actually ‘discover’
or be aware of the violation.” 311 F.3d 425, 429 (D.C. Cir.
2002) (emphasis in original). “Rather, the question is whether
the person had a reasonable opportunity to discover [it].” Id.
(emphasis in original).
Page’s argument erroneously focuses on his lack of access
to the affidavits, rather than whether he took reasonable
measures to uncover his cause of action once he learned of the
defendants’ alleged wrongful conduct. We disagree that Page
did not have “notice of the basis for his claims until the [OIG]
Report was issued in December 2019.” Reply Br. 3. Rather,
by spring of 2017, Page knew all the essential facts on which
he relies in support of his FISA claims that defendants
surveilled him in violation of 50 U.S.C. § 1809(a)(1) and
“disclosed or used” results of that surveillance in violation of
§ 1809(a)(2).
Relying on the discovery rule and our precedent, we hold
that Page had actual or inquiry notice of his FISA claims for
unauthorized surveillance and disclosure by April 2017.
(Judge Henderson would assume without deciding that the
discovery rule applies to Page’s FISA claims, Partial Dissent at

-- 18 of 65 --

19
16, but because we read our precedent to embrace that rule, we
apply it here.) In his second amended complaint, Page alleged
that the individual defendants surveilled him knowing that
there was no probable cause to do so, and then unlawfully used
or disclosed the information gathered from that surveillance.
2d Am. Compl. ¶ 142 (JA 50).
As previously noted, the April 11, 2017 Washington Post
article quoted Page himself describing the surveillance as
“unjustified” and “politically motivated.” JA096. Those
statements show that he had concluded by April of 2017 that
the FBI was unlawfully subjecting him to surveillance without
probable cause.
The Post article also reported that the FBI had renewed the
initial warrant “more than once,” JA097, thereby informing
readers, including Page, that the FBI had submitted multiple
warrant renewal applications. FISA requires warrant renewal
applications to describe information gathered from previous
surveillance. That requirement is readily available public
information—especially to a person like Carter Page with
multiple advanced degrees and prior interest in CIA
operations.4 The statute declares that:
Each application for an order approving
electronic surveillance . . . shall include . . . a
statement of the facts concerning all previous
applications that have been made to any judge .
4 Page alleges that he earned a Master’s degree in National Security
from Georgetown, an MBA from New York University, and a PhD
from the School of Oriental and African Studies University of
London, in addition to serving in the Navy in “intelligence-related
billets” and serving as an International Affairs Fellow at the Council
on Foreign Relations. 2d Am. Compl. ¶ 21 (JA026–JA027).

-- 19 of 65 --

20
. . .
50 U.S.C. § 1804(a)(8) (emphasis added). And it specifies that
“an application for an extension of an order under this
subchapter for a surveillance targeted against a United States
person,” such as the surveillance of Page, must include:
a summary statement of the foreign intelligence
information obtained pursuant to the original
order (and any preceding extension thereof) as
of the date of the application for extension, or a
reasonable explanation of the failure to obtain
such information.
Id. § 1804(a)(11) (emphasis added). Page himself highlights
this requirement to support his FISA claims. See 2d Am.
Compl. ¶¶ 229, 230 (JA 70). The statute’s command plus the
Post report of repeated renewals sufficed to put Page on notice
that the FBI “used or disclosed” information gathered under the
initial warrant in its ensuing applications in contravention of 50
U.S.C. § 1809(a)(2).
Given the direct quotations from Page in the Post article
together with FISA’s express terms, nothing more is needed to
show the claim is time-barred. But Page’s May 22, 2017 letter
to the House Intelligence Committee provides helpful
confirmation that, when he spoke to the Post the previous
month about the “unjustified” and “politically motivated”
surveillance, he thought the government had intentionally
misrepresented his connection to Russia and surveilled him in
reliance on that pretense. 5 Page’s letter described the warrants
5 Our dissenting colleague posits that we cannot rely on Page’s May
22, 2017, letter to the House Intelligence Committee because the
letter is a matter outside of the pleadings, Partial Dissent at 22–23,

-- 20 of 65 --

21
as “filled with a potpourri of falsehoods from the
Clinton/Obama regime which fabricated this travesty from the
outset.” JA102. The letter also confirms that he believed the
Post article was based on “illegal” leaks from within the
government. Therefore, Page’s May 22, 2017 letter reiterating
his awareness reflected in the April 11, 2017 article confirms
that Page knew of the unlawfulness of the FISA warrants and
his resultant injury more than three years before he filed his
FISA claims on November 27, 2020.6 These facts are
materially indistinguishable from those supporting the time bar
in Hobson, 737 F.2d at 39. Far from requiring him to file suit
“on a hunch,” the stated concern of the Hobson court, Page–
who had both read the Post and Times articles and knew he was
the subject of alleged illegal government surveillance–had
sufficient notice by April 2017 to bring FISA claims. See id.
and Appellees forfeited and/or waived reference to it, Partial Dissent
at 28 n.11. However, matters judicially noticed are not considered
matters outside the pleadings. See Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308, 322 (2007) (“[C]ourts must consider the
complaint in its entirety, as well as other sources courts ordinarily
examine when ruling on Rule 12(b)(6) motions to dismiss, in
particular, documents incorporated into the complaint by reference,
and matters of which a court may take judicial notice.”). Moreover,
D.C. Circuit precedent does not foreclose our discretion to consider
“forfeited” issues. Molock v. Whole Foods mkt. Grp., Inc., 952 F.3d
293, 298–99 (D.C. Cir. 2020) (quoting U.S. Nat’l Bank of Or. v.
Indep. Ins. Agents of Am., Inc., 508 U.S. 439 (1993)). Forfeiture
binds parties, not the court. Miguel-Pena v. Garland, 94 F.4th 1145,
1158 (10th Cir. 2024) (citation omitted). Accordingly, in our
evaluation of whether Page had notice of his FISA claims, we are not
required to ignore Page’s Congressional testimony or his May letter,
which occurred more than three years before he filed his complaint.
6 Page did not argue judicial deception or any other basis to toll the
statute of limitations.

-- 21 of 65 --

22
Our partially dissenting colleague discerns in Page’s
complaint a distinct claim of which he was not aware in early
2017, and so is not time-barred: that Peter Strzok and Lisa
Page’s media leaks included FISA-obtained information.
Partial Dissent at 30, 35–37. We do not read the complaint to
state any such claim. The dissent’s sole citation (id. at 35–36)
is to snippets of a sentence in the complaint that lumps together
distinct “use or disclose” theories and four different
defendants:
On information and belief, Defendants, known
and unknown to Dr. Page, but including but not
limited to, Comey, McCabe, Strzok, and Page,
leaked information and records concerning Dr.
Page, including but not limited to the existence
of the FISA Warrants, the contents of the
warrant applications, and the results of the
Warrants, that were protected from disclosure
under the FISA and the Privacy Act to media
outlets, including the New York Times, the
Washington Post, and possibly others.
2d. Am. Compl. ¶ 226 (JA 69–70). But the complaint
elsewhere attributes distinct actions to those individual
defendants. It describes Comey and McCabe as applying for
further FISA warrants—necessarily using information
obtained from earlier surveillance and disclosing it to the FISA
court in “obtaining each subsequent renewal warrant.” 2d. Am.
Compl. ¶ 229 (JA 70); see id. ¶¶ 152–154, 162–63 (JA 52–53,
54). And, according to the complaint, Lisa Page and Peter
Strzok were the media leakers. See 2d. Am. Compl. ¶¶ 196,
220-225 (JA 60, 67–69). Page alleges that they leaked to the
Washington Post and the New York Times the existence of and
putative bases for FISA warrants to surveil him—allegations
later confirmed by the OIG Report. But the complaint includes

-- 22 of 65 --

23
no plausible factual allegations supporting any inference that
Page or Strzok leaked the FISA warrants’ results. In other
words, “Page’s bare allegation that the defendants disclosed the
results of this surveillance to the media, without any further
detail, does not raise his ‘right to relief above the speculative
level.’ Twombly, 550 U.S. at 555.” Page, 628 F. Supp. 3d at
129.
To the extent such a theory is thought to be pleaded in the
summary sentence quoted above, it hangs on a naked
assumption: Despite a lack of factual allegations, Strzok and
Lisa Page leaked not just the warrants’ existence, putative
basis, and Page’s identity, as the Post reported, but FISA-
obtained information, too. In sum, as to the distinct theory our
colleague discerns and concludes is timely, the reality that the
complaint adds no more factual support to the assumed broader
leak than Page either knew or had reason to know in 2017 only
confirms that no such timely claim exists.
C.
Page’s Patriot Act claim arises under 18 U.S.C. § 2712,
which permits actions against the United States to recover
money damages for violations of specified sections of FISA.
Id. § 2712(a). The Patriot Act expanded the investigatory tools
federal law enforcement agents can employ to allow for easier
exchange of information and cooperation between units. See
Patriot Act, H.R. 3162, 107th Congress (2001–2002). The
Patriot Act contains its own statute of limitations, providing:
Any action against the United States under this
section shall be forever barred unless it is
presented in writing to the appropriate Federal
agency within 2 years after such claim accrues
or unless action is begun within 6 months after
the date of mailing, by certified or registered

-- 23 of 65 --

24
mail, of notice of final denial of the claim by the
agency to which it was presented.
18 U.S.C. § 2712(b)(2). Although the D.C. Circuit has not
passed on this particular provision, we have interpreted an
identically worded provision in the FTCA, 28 U.S.C.
§ 2401(b).7 We held the FTCA provision “requires the
claimant both to file the claim with the agency within two years
after accrual of the claim and then to file a complaint in the
District Court within six months after the agency denies the
claim.” Schuler v. United States, 628 F.2d 199, 201 (D.C. Cir.
1980). “Were we to read the ‘or’ in the section as really
intending the disjunctive, a claimant who filed a claim with the
agency within two years would then be able to bring it to a
District Court at any remote future time after the agency denied
him relief.” Id. See Sanchez v. United States, 740 F.3d 47, 50
n.6 (1st Cir. 2014) (“We read this disjunctive language as
setting out two deadlines, both (not just either) of which must
be satisfied. Otherwise, there would effectively be no deadline
at all.”).
The Patriot Act not only employs limitations language
identical to the FTCA but adopted it decades after Schuler had
interpreted it as we do today. See Smith v. City of Jackson,
7 Section 2401(b) states:
A tort claim against the United States shall be
forever barred unless it is presented in writing to the
appropriate Federal agency within two years after
such claim accrues or unless action is begun within
six months after the date of mailing, by certified or
registered mail, of notice of final denial of the claim
by the agency to which it was presented.
28 U.S.C. § 2401(b).

-- 24 of 65 --

25
Miss., 544 U.S. 228, 260 (2005) (O’Connor, J., concurring)
(emphasizing that like language appearing in separate statutes
is a “strong indication” that they should be interpreted alike,
particularly where judicial interpretation of one statute
precedes Congress’ adoption of the second) (citing U.S. Dep’t
of Energy v. Ohio, 503 U.S. 607, 626 (1992) (“Congress’ use
of the same language . . . indicates a likely adoption of our prior
interpretation of that language.”)); Shirk v. U.S. ex. rel. Dep’t
of Interior, 773 F.3d 999, 1004 (9th Cir. 2014) (“A basic
principle of interpretation is that courts ought to interpret
similar language in the same way, unless context indicates that
they should do otherwise.”). Accordingly, we hold that, for
statute of limitations purposes, 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. Our partially dissenting
colleague disagrees with our use of Schuler and the other cases
that rely on it. Partial Dissent at 18–21. However, Schuler is
precedent of this Circuit and stare decisis requires us to follow
it unless “the court [e]n banc has overruled it,” which it has not.
Brewster v. Comm’r of Internal Revenue, 607 F.2d 1369,
1373–74 (D.C. Cir. 1979).
Page successfully met the six-month filing requirement.
As alleged in the second amended complaint, the FBI issued
the final denial of Page’s administrative claim on April 22,
2021. Page filed his second amended complaint—the first
complaint to include his Patriot Act claim—on June 8, 2021,
well within the six-month deadline provided in 18 U.S.C.
§ 2712(b)(2). But Page failed to file his administrative claim
with the FBI within two years of its accrual.
Under the Patriot Act, accrual occurs “on the date upon
which the claimant first has a reasonable opportunity to
discover the violation.” 18 U.S.C. § 2712(b)(2). Page asserts

-- 25 of 65 --

26
that he presented his Patriot Claim to the FBI in a letter dated
September 30, 2020. Therefore, if Page had notice of facts and
circumstances supporting the discoverability of a Patriot Act
claim before September 30, 2018, Page’s claim is barred by the
statute of limitations.
Page’s allegations and their documentary support show
that, as of April 2017, Page had ample bases to discover the
FISA violation supporting his Patriot Act claim. In his second
amended complaint, Page alleged that the FBI and DOJ
violated the Patriot Act by using the surveillance information
gathered on him for unlawful purposes, including to obtain
further surveillance without probable cause. 2d. Am. Compl.
¶¶ 229, 230 (JA 70). As explained above, by April 2017, Page
was on notice of that claim. The April 11, 2017, Washington
Post article confirmed the existence of two warrant
applications:
The government’s application for the
surveillance order targeting Page included a
lengthy declaration that laid out investigators’
basis for believing that Page was an agent of the
Russian government and knowingly engaged in
clandestine intelligence activities on behalf of
Moscow . . . [and s]ince the 90-day warrant was
first issued, it has been renewed more than once
by the FISA court.
JA097.
And, as explained above, see supra Section III.B., in
addition to knowing that the FBI and DOJ had secured at least
one renewal warrant, Page knew or could have known from the
FISA statute itself that any warrant renewal application had to
disclose the information gathered on him from previous
surveillance. See 50 U.S.C. § 1804(a)(8). As such, Page had

-- 26 of 65 --

27
sufficient information by April 2017 to advance his theory that
the FBI and DOJ violated the Patriot Act by using surveillance
information gathered on him to obtain subsequent warrant
renewals. Page later acknowledged as much by asserting in his
May 22, 2017, letter to the House Intelligence Committee that
U.S. government operatives leaked his identity and revealed
classified information regarding “the completely unjustified
FISA warrant against [Page]” documented in the Washington
Post article. Page Testimony, https://perma.cc/74C9-RWZ9 at
16–17, 21–22. These events confirm that Page discovered the
basis for his Patriot Act claim by April 2017, significantly more
than two years before he submitted it to the FBI. As a result,
the statute of limitations bars Page’s claim under the Patriot
Act.
*****
For the foregoing reasons, we affirm the district court’s
dismissal of Carter Page’s FISA and Patriot Act claims
pursuant to Federal Rule of Civil Procedure 12(b)(6) as time-
barred.
So ordered.

-- 27 of 65 --

KAREN LE C RAFT HENDERSON , Circuit Judge, concurring
in part and dissenting in part: In my view, this case involves
the Government running roughshod over institutional
guardrails designed to safeguard our civil liberties. The several
defendants now evade liability, not because they are guiltless,
but because the Court finds Carter Page’s claims time barred.
Although I agree in part with that conclusion, I cannot join the
majority in full because I am convinced that one of Page’s
claims is timely and, accordingly, he is entitled to his day in
court.
I. BACKGROUND
A. FISA’s History
I begin by summarizing the history of the Foreign
Intelligence Surveillance Act (FISA)—history that is
particularly pertinent to this case. With the advent of electronic
surveillance, the Government struggled to strike a balance
between two ancient and competing interests: the need for a
“vigorous executive” capable of “secrecy[] and dispatch” in the
national security realm, The Federalist No. 70 (A. Hamilton)
(Clinton Rossitier ed., 1961), versus the risk that the
President’s “Minions” would use “dangerous or oppressive
Measures” and “shelter themselves” from “Inquiry into their
own misconduct in Office.” George Mason, Objections to the
Constitution of Government Formed by the Convention (1787).
In the early twentieth century, the United States Supreme Court
held that domestic wiretapping and surveillance fell outside the
ambit of the Fourth Amendment absent a physical trespass into
a constitutionally protected area. Olmstead v. United States,
277 U.S. 438, 464–66 (1928). Under this framework, “the
Fourth Amendment was inapplicable to non-trespassory
electronic surveillance . . . [and] . . . warrants were not
required.” Zweibon v. Mitchell, 516 F.2d 594, 617 (D.C. Cir.

-- 28 of 65 --

2
1975) (en banc). And so, the Executive expanded the scope of
warrantless electronic surveillance, which “was generally
accomplished without a physical trespass.” Id. at 617–18.
That regime was upended in Katz v. United States, the
decision that replaced the Fourth Amendment’s trespass model
with the now prevailing reasonable-expectation-of-privacy test
and held that the Government must obtain a warrant before
employing electronic surveillance during a criminal
investigation. 389 U.S. 347, 353, 356–57 (1967). But the Katz
Court reserved judgment on whether its holding applied “in a
situation involving the national security”—that is, when the
Government’s reason for surveillance was not traditional
criminal enforcement but intelligence gathering. Id. at 358
n.23. The Congress responded to Katz by passing the Omnibus
Crime Control and Safe Streets Act of 1968 (OCCSSA). Title
III of OCCSSA, known as the Wiretap Act, established
procedures for judicial authorization of electronic surveillance
by law enforcement but disclaimed regulation of the
President’s ability to intercept “[t]he contents of any wire or
oral communication” if the purpose was “to obtain foreign
intelligence information . . . or to protect national security
information against foreign intelligence activities.” Pub. L.
No. 90-351, Title III, § 802, 82 Stat. 197, 212, 214 (1968)
(then-codified at 18 U.S.C. § 2511(3)).
Five years later, in United States v. U.S. District Court (the
“Keith” case) the Supreme Court narrowed the national
security carve-out recognized in Katz. 407 U.S. 297 (1972). It
first interpreted § 2511(3) of the Wiretap Act as agnostic on
“the President’s electronic surveillance power,” neither
endorsing nor denying its existence. Id. at 303. It then held
that the Fourth Amendment applies to “domestic security
surveillance” if the target has no “significant connection with a
foreign power, its agents or agencies.” Id. at 309 n.8, 320–22.

-- 29 of 65 --

3
The Keith Court, like its predecessor, declined to pass on the
“scope of the President’s surveillance power with respect to the
activities of foreign powers, within or without this country.”
Id. at 308.
In the mid-1970s, courts continued to grapple with the
existence and scope of a national-security exception to the
Fourth Amendment. After Keith, three federal circuits held
that the President’s foreign affairs powers allowed the
Government to conduct warrantless electronic surveillance to
monitor domestically an agent of a foreign power. See United
States v. Brown, 484 F.2d 418, 426 (5th Cir. 1973); United
States v. Butenko, 494 F.2d 593, 608 (3d Cir. 1974); United
States v. Buck, 548 F.2d 871, 875–76 (9th Cir. 1977). Our
Court bucked the trend and—in a fractured plurality opinion—
implied that “wiretapping in the area of foreign affairs should
[not] be exempt from prior judicial scrutiny.” Zweibon, 516
F.2d at 651. 1
Around the same time, the Congress and the media
brought to light a cascade of abuses committed by the
intelligence community. Presidents from Franklin Roosevelt
onward had authorized ever-expanding warrantless electronic
surveillance rooted in claims of inherent executive power.
S. Rep. No. 95-604, at 7–9 (1977). Because of the need for
secrecy, this surveillance was conducted without legislative or
judicial oversight. S. Rep. No. 95-217, at 1 (1977). Although
the surveillance began as a tool for matters “involving the
1 The eight judges of the en banc Court filed five separate
opinions. A four-judge plurality “suggest[ed]” that domestic
surveillance of an agent of a foreign power required a warrant but
did “not rest [their] decision” thereon. Id. Two judges declined to
speak to the issue and the remaining two believed that the plurality’s
dicta was wrong. Id. at 681, 686, 688–89, 705–06.

-- 30 of 65 --

4
defense of the nation,” it drifted into domestic affairs. Keith,
407 U.S. at 310 n.10.
In 1975, the Congress formed a select committee chaired
by Maryland Senator Frank Church to investigate the
Executive’s alleged misuse of its vast surveillance apparatus.
The Church Committee uncovered abuses that “infringed
upon” the “rights of United States citizens.” S. Rep. No. 94-
755, at 12 (1976). The revelations spurred the Congress to
create the first Senate Select Committee on Intelligence, which
concluded that responsibility for surveillance “must be shared
by the three branches of Government.” S. Rep. No. 95-217, at
1.
The legal and political tumult of the 1970s led to a
protracted legislative struggle to rein in the President. The
Foreign Intelligence Surveillance Act resulted from those
efforts. FISA aimed to resolve the legal haze of Keith and the
public’s eroded confidence in the intelligence community with
one “basic premise”—“that a court order for foreign
intelligence electronic surveillances can be devised that is
consistent with . . . the fourth amendment.” S. Rep. No. 95-
701, at 9 (1978). FISA “was a surprisingly simple statute” that
“banned the Government from conducting ‘electronic
surveillance’ without a FISA warrant,” absent one of a narrow
list of exceptions. Orin S. Kerr, Updating the Foreign
Intelligence Surveillance Act, 75 U. Chi. L. Rev. 225, 230
(2008). The warrant was to be issued by the newly created
Foreign Intelligence Surveillance Court (FISC), the Congress’s
mechanism for balancing secrecy and accountability. The
FISC lies at the heart of FISA’s grand bargain: the Executive
Branch agreed to legal oversight and restraint in exchange for
procedural safeguards implemented behind a veil of secrecy.
“Unlike most other courts, [the] FISC holds its proceedings in
secret and does not customarily publish its decisions.” ACLU

-- 31 of 65 --

5
v. United States, 142 S. Ct. 22, 23 (2021) (Gorsuch, J.,
dissenting from the denial of certiorari). The Congress would
police the FISA process through two newly formed intelligence
committees that themselves conduct a significant share of their
business behind closed doors.
FISA thus resolved the lingering Keith exception and
remedied the intelligence community’s rudderless surveillance
through a series of internal and external checks. See 50 U.S.C.
§§ 1804(a) (executive oversight procedures), 1805(a) (judicial
oversight), 1808 (congressional oversight) (1978). Foreign
intelligence surveillance now requires a warrant and that
warrant is subject to Executive Branch attestation, judicial
approval and post-hoc congressional oversight.
Sadly, the closed nature of the process allowed a mix of
complacency and duplicity to unspool FISA’s tightly wound
safeguards. One early pressure point arising in the FISA
process was the Government’s purpose for surveilling: foreign
intelligence surveillance is the domain of FISA but traditional
law enforcement is subject to Title III procedures. Compare
50 U.S.C. § 1804(a) with 18 U.S.C. §§ 2516–18; see also U.S.
Telecom Ass’n v. FCC, 227 F.3d 450, 453 (D.C. Cir. 2000).
Whereas a Title III warrant requires a probable cause of
criminal activity determination, FISA requires only probable
cause that a target is acting as a foreign power’s agent. Before
procuring a warrant, then, FISA required the Executive Branch
to certify “that the purpose of the surveillance is to obtain
foreign intelligence information.” Foreign Intelligence
Surveillance Act of 1978, Pub. L. No. 95-511, § 104(a)(7)(B),
92 Stat 1783, 1789. To police the FISA/Title III line, in the
mid-1990s the Attorney General constructed a “wall” between
the intelligence community and the Department of Justice
(DOJ). Under DOJ’s 1995 policy, federal prosecutors avoided
giving even the “appearance” that they were “directing or

-- 32 of 65 --

6
controlling” an investigation if FISA applied or was even being
contemplated. See Memorandum from the Att’y Gen. on
Procedures for Contacts Between the FBI and the Criminal
Division Concerning Foreign Intelligence and Foreign
Counterintelligence Investigations (July 19, 1995), https://
perma.cc/X42F-QESR.
In 2001, the FISC presiding judge unearthed a series of
FBI affidavits that claimed adherence to the wall when in fact
information had leaked from the FBI to federal prosecutors.
The issue was not the merits of the wall; indeed, the Congress
would later amend FISA to remove the wall. See USA Patriot
Act of 2001, Pub. L. No. 107–56, § 218, 115 Stat. 272, 291
(amending 50 U.S.C. § 1804(a) from “the purpose” to “a
significant purpose” to allow for greater information sharing
across the Executive); In re Sealed Case, 310 F.3d 717, 736–
46 (FISC Rev. 2002) (upholding the amended language).
Rather, the concern was the Executive’s disregard for its own
procedural buffers and its sometimes-doubtful representations
to the court. It initially “confess[ed] error in some 75 FISA
applications . . . related to misstatements and omissions of
material facts,” a number that only grew with time. In re All
Matters Submitted to Foreign Intel. Surveillance Ct., 218 F.
Supp. 2d 611, 620–21 (FISC 2002), abrogated on other
grounds by In re Sealed Case, 310 F.3d 717. In response, the
FISC presiding judge convened the full FISC and issued an
order banning one FISA affiant from ever again appearing
before the court. Bernard Horowitz, FISA, the “Wall,” and
Crossfire Hurricane: a Contextualized Legal History, 7 Nat.
Sec. L. J. 1, 64–65 (2020) (recounting this history).
In response to the lapses recounted above, the FBI
implemented what became known as the “Woods procedures,”
a series of internal checks requiring the FBI agent responsible
for a FISA warrant application to maintain a “Woods File”—

-- 33 of 65 --

7
supporting documentation for every factual assertion contained
in the FISA warrant application. In re Accuracy Concerns
Regarding FBI Matters Submitted to the FISC, No. 19-02, 2020
WL 1975053, at *1 (FISC Apr. 3, 2020).
B. Carter Page Warrants
As the majority describes it, the FBI made some “factual
misstatements and omissions regarding Page.” Maj. Op. 10.
Assuming the facts as alleged to be true, as we must at this
litigation stage, see Mills v. Anadolu Agency NA, Inc., 105
F.4th 388, 395 (D.C. Cir. 2024), I find the record far more
troubling. According to Page, the FBI engaged in serious
Woods File breaches: it failed to scrutinize the conflicting
motives of its primary source, Christopher Steele; it concealed
information from the FISC that cast doubt on Steele’s
credibility; and it omitted Page’s past work for the Central
Intelligence Agency (CIA) in its FISA application.2 It is solely
because of these breaches that the FISC authorized the
Government’s surveillance of Page. Ordinarily, these facts
would be allegations we would simply assume to be true. But
we need not rely on assumptions. In 2019, the Justice
Department’s Office of the Inspector General (OIG) issued a
report cataloging the delicts. See OIG, Review of Four FISA
Applications and Other Aspects of the FBI’s Crossfire
Hurricane Investigation (Dec. 2019), https://perma.cc/8TGE-
VGTK (OIG Report).
2 In addition to his work for the CIA, Page served in the United
States Navy, led a distinguished career at a leading financial
institution and taught courses on energy and politics at New York
University. After graduating from the United States Naval
Academy, Page obtained a Master’s degree from Georgetown, an
MBA from NYU and a PhD from the School of Oriental and African
Studies University of London.

-- 34 of 65 --

8
The OIG found that the FBI ex industria concealed
exculpatory information regarding Page from the FISC while
embellishing more negative information. The FBI suspected
Page of involvement in Russia’s infamous 2016 election
interference based on a report prepared by Steele. Id. at vii.
Yet the “FBI did not have information corroborating the
specific allegations against Carter Page in Steele’s reporting
when it relied upon his reports in the first FISA application or
subsequent renewal applications.” Id. at viii. Indeed, the FBI
“obtained [] information raising significant questions about the
reliability of” Steele yet said nary a word to the FISC. Id. at vi.
On the contrary, it “overstated” Steele’s reliability. Id. at viii.
The OIG identified several “instances in which factual
assertions relied upon in the [] FISA application[s] were
inaccurate, incomplete, or unsupported.” Id. In one of the most
glaring acts of defiance, an FBI lawyer, Kevin Clinesmith,
altered emails to indicate that Page was “not a source” for the
CIA when he had in fact acted as a source in the past. Id. at 7–
8; see also United States v. Clinesmith, No. 20-cr-165, ECF
Nos. 8–9, (D.D.C. Aug. 19, 2020). All in all, the OIG identified
seventeen significant errors in the Page FISA applications. See
OIG Report at viii–xii. As the Government itself now belatedly
concedes, but for those errors it could not have sustained its
surveillance of Page. See Gov’t Br. 6 (acknowledging that “in
light of th[e]se errors, in the last two renewal applications, if
not earlier, there was insufficient predication to establish
probable cause to believe that Page was acting as an agent of a
foreign power”) (quotations omitted).
It would be egregious enough if this conduct were the
work of a few wayward defalcators. But the OIG found that
similar shortcomings infected the entire FISA process. On the
heels of the Page fiasco, the OIG conducted a random audit of
29 other FISA applications to ascertain their compliance with

-- 35 of 65 --

9
the Woods File procedures. Every reviewed application
contained Woods violations. Twenty-five files contained
inadequately supported claims or errors and four applications
had no Woods File. OIG, Audit of the Federal Bureau of
Investigation’s Execution of its Woods Procedures for
Applications Filed with the Foreign Intelligence Surveillance
Court Relating to U.S. Persons ii (Sept. 2021), https://
perma.cc/3LKS-72CP. The Justice Department informed the
FISC that these 29 applications contained 209 errors and the
OIG identified an additional 209 instances in which the Woods
Files did not support claims made in the warrant applications.
Id. at ii, 7–8. A broader audit of every FISA application made
between January 2015 to March 2020 produced yet another 179
instances “where the required Woods File was missing,
destroyed, or incomplete.” Id. In other words, the manifest
failures in the Page FISA process were not an aberration but
par for the course for the FBI.
C. The Page Leaks
But the FBI did not stop at misleading the FISC. Page was
not only unlawfully surveilled—the surveillance then became
public fodder due to a steady drip of leaks to the media that
painted Page as a foreign agent; in particular, a Russian agent.
First, the FBI’s informant, Christopher Steele, disclosed
selected portions of his subsequently discredited investigation
to the media, including that Page had met with sanctioned
Russian individuals. Second, two FBI employees, Lisa Page
and Peter Strzok, executed a scheme to leak to the media that
Page was the subject of a FISA warrant. In a series of crass
text messages sent via their government devices, Strzok and
Lisa Page shared their mutual enmity for Page and crowed
about their “media leak strategy” to tarnish his reputation.3 The
3 Deputy FBI Director Andrew McCabe allegedly put his
imprimatur on the Page media leak operation. Indeed, McCabe was

-- 36 of 65 --

10
Deputy Attorney General later released these text messages
because he believed that they “were so inappropriate and
intertwined with their FBI work that they raised concerns about
political bias influencing official duties.” Declaration of Rod
J. Rosenstein, Strzok v. Barr, No. 1:19-cv-2367, ECF No. 38-
1, (D.D.C. Jan. 17, 2020). The leaks had their predictable
effect. For years Page has been branded with the false label of
“agent of a hostile foreign power.”
II. ANALYSIS
Despite our Government’s appalling conduct, I agree with
my colleagues’ conclusion that Page cannot prevail on all but
one of his claims. His FISA claims cannot be brought against
the Government defendants—the Department of Justice, the
FBI and the United States—and his Patriot Act claim—which
can lie against governmental agencies—is, I believe, forfeited
and, in any event, is without merit as discussed infra.4 As for
Page’s first FISA claim against the individual defendants, I
reach the same result that my colleagues do but on slightly
different analyses. And, most importantly, I do not agree that
Page’s second FISA claim is time-barred; I believe that Page
states a timely and plausible claim for relief and would
therefore reverse the district court’s dismissal of that claim.
later fired from the FBI after personally authorizing a leak of other
“sensitive information” to, as the OIG found, “enhanc[e] [his]
reputation.” OIG, A Report of Investigation of Certain Allegations
Relating to Former FBI Deputy Director Andrew McCabe 1–2, 33–
34 (Feb. 2018), https://perma.cc/8TZK-9GZM. When questioned
about the leaks, McCabe “lacked candor” with the FBI Director
and—under oath—again “lacked candor” with the FBI’s Inspection
Division and OIG. Id. More colloquially, McCabe leaked, then lied.
4 See discussion II.B.

-- 37 of 65 --

11
A. FISA Section 1809(a)(1)
I begin where the majority does: with Page’s § 1809(a)(1)
claim. My colleagues conclude that Page’s first FISA claim is
time-barred but “assume without deciding” which of the
parties’ three proffered limitations periods governs. Maj. Op.
16. And they decide that the federal discovery rule controls in
determining when a FISA claim first accrues. Id. I would
resolve the question they assume and assume the question they
decide.
1. Limitations Period/Accrual Rule
FISA contains no statute of limitations, “a void which is
commonplace in federal statutory law.” Bd. of Regents v.
Tomanio, 446 U.S. 478, 483 (1980). In the absence of
congressional preemption, the applicable state limitations
statute applies of its own force; that is, the court “‘borrow[s]’
the most closely analogous state limitations period.” Graham
Cnty. Soil & Water Conservation Dist. v. U.S. ex rel. Wilson,
545 U.S. 409, 414 (2005). The parties advance a slew of
options for the governing limitations period. In my view, only
one—D.C. Code § 12-301(8)—has merit.
The individual defendants argue that we should use the
two-year limitations period found in both the Wiretap Act and
the Stored Communications Act because those laws “work in
tandem with FISA and share its objective[s],” and because a
resort to state law would result in “forum shopping and
inconsistent judgments.” Red Br. 52–53 (internal quotations
omitted).5 The Wiretap Act, Pub L. No. 90-351, Title III,
§ 802, 82 Stat. 197, 212, 18 U.S.C. § 2510 et seq., governs
prospective surveillance of the contents of oral, wire or
5 For clarity, I refer to the individual defendants’ brief as the
Red Brief and to the Government’s brief as the Gov’t Brief.

-- 38 of 65 --

12
electronic communications. Its counterpart, the Stored
Communications Act, Pub. L. No. 99-508, Title II, § 201, 100
Stat. 1848, 1860, 18 U.S.C. § 2701 et seq., governs acquisition
of the contents or metadata of those communications. In other
words, the Wiretap Act applies when the Government actively
intercepts communications and the Stored Communications
Act applies when the Government seeks to retrieve stored
communications. It can be the difference between listening in
on a live telephone call and retrieving a one-month log of a
cellphone’s intercepted text messages.
The three statutes are in pari materia—they relate “to the
same subject matter,” employ contiguous statutory terms and
form discrete pieces of a uniform whole: the means by which
the Government may lawfully conduct electronic surveillance
of its citizens. 2B Singer & Singer, Sutherland Statutes &
Statutory Construction (7th ed. Nov. 2024 update) § 51:1–3.
For this reason, the individual defendants argue that the Court
should apply the two-year limitations period prescribed for the
Wiretap Act and for the Stored Communications Act to FISA.
With respect, I disagree.
I do agree that state statutes of limitations apply of their
own force unless legitimately displaced by an act of the
Congress. Perhaps because this doctrine became the inaptly
named “borrowing doctrine,” courts thought it equally proper
to “borrow” statutes of limitations from other federal laws.
See, e.g., Haggerty v. USAir, Inc., 952 F.2d 781, 786–88 (3d
Cir. 1992); Smith v. Int'l Org. of Masters, Mates & Pilots, 296
F.3d 380, 382 (5th Cir. 2002). But properly understood, “the
borrowing doctrine involves no borrowing at all.” Agency
Holding Corp. v. Malley-Duff & Assocs., 483 U.S. 143, 163
(1987) (Scalia, J., concurring in the judgment). Instead, “state
statutes of limitations . . . apply as a matter of state law” to
“federal statutory causes of action” if the Congress has not

-- 39 of 65 --

13
otherwise prescribed. Id. at 161. A court that applies a state
statute of limitations is engaged in a quintessentially judicial
role: the application of law to facts. But a court treads on
legislative terrain when it “borrows” what it views as a
sufficiently analogous federal limitations period from one
statute and applies it to another. To do so “is not a construction
of a statute, but, in effect, an enlargement of it by the court.”
Rotkiske v. Klemm, 589 U.S. 8, 14 (2019). Accordingly, the
Supreme Court has termed it “the rare case” in which it is
appropriate to “borrow [an] analogous federal limitations
period in the absence of an expressly applicable one.” Graham
Cnty., 545 U.S. at 415; see N. Star Steel Co. v. Thomas, 515
U.S. 29, 34–35 (1995) (describing it as “a closely
circumscribed and narrow exception to the general rule” that
state law applies) (alterations omitted). And here, FISA’s close
relationship to the Wiretap and Stored Communications Acts
and its express omission of a statute of limitations does not
support “borrowing” either of the latter limitations periods;
instead, the negative inference is just as justified, if not more
so. If a statute “omits words used in a prior statute on a similar
subject,” that omission is considered deliberate and indicative
of a “different intent.” 2B Sutherland § 51:2.
In the alternative, the individual defendants ask that we
apply D.C.’s one-year statute of limitation for claims alleging
“libel, slander” or “other invasion of privacy claims.” D.C.
Code § 12-301(4); see Greenpeace, Inc. v. Dow Chem. Co., 97
A.3d 1053, 1062 (D.C. 2014) (extending § 12-301(4) to
privacy torts). Section 12-301(4) claims apply to private
tortfeasors; FISA governs only those who engage in conduct
“under color of law.” 50 U.S.C. § 1809(a)(1), (2); see Payne
v. District of Columbia, 559 F.2d 809, 817 n.32 (D.C. Cir.
1977) (explaining that “injuries inflicted by officers acting
under color of law are significantly different in kind from those
resulting from acts of private persons”). We have also held that

-- 40 of 65 --

14
D.C.’s catchall three-year limitations period applies to
analogous Fourth Amendment Bivens actions. See Banks v.
Chesapeake & Potomac Tel. Co., 802 F.2d 1416, 1429 (D.C.
Cir. 1986); D.C. Code § 12-301(8) (setting a three-year
limitation for any claim “not otherwise specifically
prescribed”). Accordingly, I agree with my colleagues that
§ 12-301(8)’s three-year limitation applies—not because I
assume it but because the law commands it.
Although I believe the limitations period is
straightforward, the accrual rule presents a closer question that
I would not resolve today. Section 12-301(8)’s three-year
limitation runs from “the time the right to maintain the action
accrues.” As the majority explains, the accrual rule for a
federal claim—even when applying a state limitations period—
is a question of federal law. See Albright v. Oliver, 510 U.S.
266, 280 n.6 (1994).
A claim accrues “when the plaintiff has a complete and
present cause of action—i.e., when she has the right to file suit
and obtain relief.” Corner Post, Inc. v. Bd. of Governors of
Fed. Rsrv. Sys., 603 U.S. 799, 809 (2024) (internal quotations
omitted). A claim for retrospective relief becomes complete,
and thus accrues, at the moment of injury. This is called the
“incident of injury rule,” Petrella v. Metro-Goldwyn-Mayer,
Inc., 572 U.S. 663, 670 & n.4 (2014), and constitutes the
“standard rule” for accrual. Rotkiske, 589 U.S. at 13; Graham
County, 545 U.S. at 418 (same). Sometimes, however, courts
employ a “discovery rule,” under which the limitations period
begins “when the plaintiff discovers, or with due diligence
should have discovered, the injury that forms the basis for the
claim.” Petrella, 572 U.S. at 670 n.4. The discovery rule
“arose in 18th-century fraud cases as an ‘exception’ to the
standard rule,” Gabelli v. SEC, 568 U.S. 442, 449 (2013), and
has since been expanded by the Supreme Court to only “two

-- 41 of 65 --

15
contexts, latent disease and medical malpractice.” TRW Inc. v.
Andrews, 534 U.S. 19, 27 (2001).
The majority posits that the discovery rule is “the general
rule” in federal courts, at least “in cases in which the injury is
‘not of the sort that can readily be discovered when it occurs.’”
Maj. Op. 16 (quoting Sprint Commc’ns Co. v. FCC, 76 F.3d
1221, 1226 (D.C. Cir. 1996)). I respectfully disagree. The
majority relies on our decision in Sprint Communications,
which in turn relies on Connors v. Hallmark & Son Coal Co.,
935 F.2d 336, 341–42 (D.C. Cir. 1991). In Connors, then-
Judge Ruth Bader Ginsburg concluded that courts of appeals
had coalesced around the view that “the discovery rule is to be
applied in all federal question cases in the absence of a contrary
directive from Congress.” 935 F.2d at 342 (quotation omitted).
I believe that consensus may no longer be good law.
The Supreme Court has “observed that lower federal
courts ‘generally apply a discovery accrual rule when a statute
is silent on the issue’” but it has conspicuously “not adopted
that position as [its] own.” TRW Inc., 534 U.S. at 27 (quoting
Rotella v. Wood, 528 U.S. 549, 555 (2000)).6 On the contrary,
the Court has cautioned against an “expansive approach to the
discovery rule” and termed its broad use a “bad wine of recent
vintage.” Rotkiske, 589 U.S. at 14 (quoting TRW Inc., 534 U.S.
at 37 (Scalia, J., concurring in the judgment)). Rotkiske
“expressly rejected” the “default presumption that all federal
limitations periods run from the date of discovery.” Id. at 12.
Granted, the clandestine nature of FISA surveillance may often
preclude FISA’s civil cause of action absent a discovery
accrual rule. But no party here challenged the applicability of
6 Notably, TRW Inc. was authored by Justice Ginsburg. Justice
Ginsburg cited to her Connors decision but drew a contrast between
the default rule as developed in the circuit courts and the default rule
applied by the Supreme Court. Id. at 27–28.

-- 42 of 65 --

16
the discovery rule and so we lack the benefit of adversarial
briefing on the matter. I would accordingly assume without
deciding that the discovery accrual rule applies here.
With these reservations noted, I agree that Page’s
§ 1809(a)(1) claim alleging that the individual defendants
engaged in unlawful surveillance is untimely for the reasons
explained by the majority.
B. The Patriot Act
1. The Plain Text
The Patriot Act provides that:
Any action against the United States under this
section shall be forever barred unless it is
presented in writing to the appropriate Federal
agency within 2 years after such claim accrues
or unless action is begun within 6 months after
the date of mailing, by certified or registered
mail, of notice of final denial of the claim by the
agency to which it was presented. The claim
shall accrue on the date upon which the claimant
first has a reasonable opportunity to discover
the violation.
18 U.S.C. § 2712(b)(2) (emphasis added). Section 2712(b)(2)
is plainly disjunctive: a plaintiff must either present his claim
to the agency within two years or bring an action within six
months of final agency denial.
The Patriot Act’s statute of limitation echoes the Federal
Tort Claims Act (FTCA), which provides that:

-- 43 of 65 --

17
(a) [E]very civil action commenced against
the United States shall be barred unless the
complaint is filed within six years after the right
of action first accrues.
(b) A tort claim against the United States
shall be forever barred unless it is presented in
writing to the appropriate Federal agency within
two years after such claim accrues or unless
action is begun within six months after the date
of mailing, by certified or registered mail, of
notice of final denial of the claim by the agency
to which it was presented.
28 U.S.C. § 2401. Both the Patriot Act and the FTCA impose
two distinct procedural requirements: administrative
exhaustion and timely filing. No action can be filed against the
United States “unless the claimant shall have first presented the
claim to the appropriate Federal agency and his claim shall
have been finally denied by the agency.” 28 U.S.C. § 2675(a).
The agency then has six months to resolve an administrative
claim, after which the agency’s silence may “be deemed a final
denial of the claim.” Id. All claims are then subject to the
general limitations rule that they are “barred unless the
complaint is filed within six years after the right of action first
accrues.” Id. § 2401(a). 7 For FTCA and Patriot Act claims
only, the action is also “barred unless it is presented in writing
to the appropriate Federal agency within two years after such
claim accrues or unless action is begun within six months after
. . . final denial of the claim by the agency.” Id. § 2401(b);
accord 18 U.S.C. § 2712(b)(2).
7 These FTCA procedures apply with equal force to the Patriot
Act. See 18 U.S.C. § 2712(b)(1) (requiring “[a]ny action . . . under
this section” to follow the agency presentment “procedures of the
Federal Tort Claims Act”).

-- 44 of 65 --

18
Properly construed, any claim against the United States
must, in effect, first be presented to the Government no later
than five years and six months from accrual; that is, six months
before the six-year limitations deadline in 28 U.S.C. § 2401(a).
For tort and Patriot Act claims, a plaintiff is subject to a stricter
rule requiring timelier administrative presentment. If the
plaintiff presents his claim to the agency within two years, he
is treated like other claimants and benefits from the full six-
year statute of limitations. But if the plaintiff presents his claim
to the agency after two years, the limitations period for civil
suit is shortened to six months after agency denial. The statute
effectively imposes a penalty on a plaintiff who sits on his
claim before presenting it to an agency.
Despite the plain text, in Schuler v. United States this court
applied comments in the FTCA’s legislative history to rewrite
its deadline. 628 F.2d 199 (D.C. Cir. 1980). It worried that
“[w]ere we to read the ‘or’ in the section as really intending the
disjunctive, a claimant who filed a claim with the agency
within two years would then be able to bring it to a District
Court at any remote future time after the agency denied him
relief.” Id. at 201. But that result does not follow. A claimant
would still be subject to § 2401(a), which bars any claim not
brought within six years of accrual. The Schuler court thought
that “relying on [§ 2401(a)] makes little sense” because it is a
“general” limitation “superseded” by the “specific language of
Section 2401(b).” Id. And notwithstanding § 2401(a) and (b)
can operate jointly, the Court determined that “the legislative
history of Section 2401(b) clearly shows that Congress
intended a claimant to surmount both [§ 2401(b)] barriers.” Id.
at 202.
Schuler divined this congressional intent not from the
statute but from a pair of committee reports. The committee
reports describe § 2401(b) as requiring “a claimant [to] file a

-- 45 of 65 --

19
claim in writing to the appropriate Federal agency within 2
years after the claim accrues, and to further require the filing
of a court action within 6 months . . . of a final decision . . . by
the agency.” H.R. Rep. No. 89-1532, at 5 (1966) (emphasis
added); accord S. Rep. No. 89-1327, at 8 (1966) (similarly
using an “and”). Schuler engrafted the committee report’s
“and” onto the statutory “or,” relying on its “common sense
and the legislative history” and its belief that the FTCA was
“not happily drafted.” 628 F.2d at 201.
Three years later, the Second Circuit adopted our statutory
misconstruction. It did so despite conceding that “[i]t is
beyond dispute that ‘or’ generally is a disjunctive.” Willis v.
United States, 719 F.2d 608, 610 (2d Cir. 1983). Surveying the
legislative history, the court declared it “beyond our ken”
“[w]hy the draftsman chose to use ‘or’ in the bill, as
distinguished from the crystal clear ‘and’ of the committee
reports.” Id. at 612. Relying on Schuler, Willis rewrote
§ 2401(b) to fit the statute to its legislative history. Willis
acknowledged that it did not provide “a strictly literal reading”
and that it could therefore “lead to an intercircuit conflict.” Id.
at 610, 613 n.3.
Later precedent of both the Supreme Court and this Court
makes clear that the statute’s plain language cannot be
disregarded. In interpreting statutes, we begin with the “plain
language” because it is “[t]he most reliable guide to
congressional intent,” Friends of the Earth, Inc. v. EPA, 446
F.3d 140, 145 (D.C. Cir. 2006), and “avoid[s] the pitfalls that
plague too quick a turn to the more controversial realm of
legislative history.” Lamie v. U.S. Tr., 540 U.S. 526, 536
(2004). “[L]egislative history is not the law” and insofar as it
is ever a proper source for revealing congressional intent, it is
only to resolve an ambiguity, not to create one by “muddy[ing]
clear statutory language.” Azar v. Allina Health Servs., 587

-- 46 of 65 --

20
U.S. 566, 579 (2019). This is particularly true “with respect to
filing deadlines [when] a literal reading of Congress’ words is
generally the only proper reading of those words.” United
States v. Locke, 471 U.S. 84, 93 (1985).
There is no ambiguity in the meaning of “or.” Schuler
simply—and erroneously—thought that the Congress did not
intend what it wrote. And as predicted, its disregard of the text
eventually engendered a circuit split. Compare Schuler, 628
F.2d at 201 (“Were we to read the ‘or’ in the section as really
intending the disjunctive, a claimant who filed a claim with the
agency within two years would then be able to bring it to a
District Court at any remote future time after the agency denied
him relief”) with Ellison v. United States, 531 F.3d 359, 363
(6th Cir. 2008) (“Had Congress used ‘and’ in writing this
statute (or had we adopted ‘and’ in construing it), that would
mean that a claim would be barred only if the plaintiff filed the
action late in the agency and filed the action late in court.”).8
Schuler’s misinterpretation violates basic principles of
statutory construction and fair notice. Under Schuler’s
approach, the meaning of § 2401(b) is the precise opposite of
its text. Indeed, Willis acknowledged that its interpretation
“may cause hardship to litigants” who rely on the law as
8 Ellison created its own interpretative anomalies by inverting
the logic of the statute. In an effort to reconcile Schuler’s (mistaken)
belief that a plain text read would eliminate any judicial deadline
with the disjunctive “or,” the court read “forever barred . . . unless”
(a) “or” (b) as “forever barred . . . if not” (a) “or” (b). Id. at 363.
That is, the court interpreted § 2401(b) to forever bar claims if a
plaintiff does not present the claim to an agency within two years or
does not sue within six months of agency denial. That is not what
the statute says. But Ellison at least recognized that it could not
simply “transform[] ‘or’ into ‘and’” to better align with purported
legislative purpose. Id. at 363.

-- 47 of 65 --

21
written. 719 F.2d at 613 n.3. But see Feliciano v. Dep’t of
Transp., 145 S.Ct. 1284, 1291 (2025) (“[T]hose whose lives
are governed by law are entitled to rely on its ordinary
meaning, not left to speculate about hidden messages.”). That
should not be the case, especially in the context of the FTCA,
where claimants are often pro se.
Of course, Schuler remains binding on this panel until the
Supreme Court or the en banc Court corrects it. But its stare
decisis effect applies only to the FTCA. We have never
interpreted the Patriot Act’s statute of limitations and are
therefore not bound to compound its error. Although “stare
decisis concerns may counsel against overruling” our
erroneous FTCA precedent, there is “no reason whatsoever” to
let that error spill over to a separate statute. Rose v. Rose, 481
U.S. 619, 636 (1987) (O’Connor, J., concurring in part and
concurring in the judgment). “To be sure, where two statutes
use similar language,” courts “generally take this as a strong
indication that they should be interpreted pari passu.” Smith v.
City of Jackson, 544 U.S. 228, 260 (2005) (O’Connor, J.,
concurring in the judgment) (cleaned up); see Maj. Op. 24–25
(relying on this rationale). But nothing in Schuler “provides
any reason to extend its holding to the” Patriot Act as “the
decision in [Schuler] was not based on any analysis of [the
FTCA’s] actual language. Rather, the ratio decidendi was the
statute’s [legislative history].” Smith, 544 U.S. at 261–62.
As should be plain, the legislative history of statute A has
no bearing on the meaning of statute B. The committee reports
that Schuler thought key are doubly irrelevant: once because
they are unenacted legislative history and, again, because they
are the legislative history of a different statute. “[L]egislative
history can not justify reading a statute to mean the opposite of
what it says” or “turn[ing] a clear text on its head.” Spivey v.
Vertrue, Inc., 528 F.3d 982, 985 (7th Cir. 2008). And it

-- 48 of 65 --

22
certainly cannot do so if it tells the legislative history of another
statute.
There is no dispute that Page filed his Patriot Act claim
within six months of agency denial and within six years of
claim accrual. See Maj. Op. 25. That should be the end of the
matter.
2. Page’s Timeliness
Even under what I believe is the majority’s mistaken
statutory construction, Page’s Patriot Act claim is timely. The
Patriot Act authorizes a suit against the United States for a
willful violation of certain FISA provisions. Section 106(a) of
FISA—the only provision Page relies on—in turn provides that
“[n]o information acquired from an electronic surveillance
pursuant to [FISA] may be used or disclosed by Federal
officers or employees except for lawful purposes.” 50 U.S.C.
§ 1806(a). My colleagues believe that Page knew or should
have known of the Government’s use or disclosure of FISA-
derived information as of the April 2017 Washington Post
article, a theory I address more fully infra.9 For now, I note my
belief that nothing in the Post article would give Page the
requisite notice of his injury to establish that his claim accrued
more than two years before it was administratively presented.
The majority also points to Page’s statements in a May 22,
2017 letter to the House Permanent Select Committee on
Intelligence. Maj. Op. 27. Unlike the Washington Post report,
the May 2017 letter is not incorporated into Page’s complaint.
The Government requested that the district court take judicial
notice of the letter under Fed. R. Evid. 201(b), a request the
majority now apparently grants. The Government skates on
thin ice when it asks the Court to resolve an affirmative defense
9 See discussion II.C.

-- 49 of 65 --

23
on a motion to dismiss based on facts outside the record. As
we have repeatedly stated, affirmative defenses may be
resolved on a Rule 12(b)(6) motion based only on “the face of
the complaint.” Smith-Haynie v. District of Columbia, 155
F.3d 575, 578 (D.C. Cir. 1998). Should the Government urge
the court to “consider matters outside the pleadings,” the Court
must “convert[] the motion into one for summary judgment and
afford[] all parties ‘reasonable opportunity to present all
material made pertinent to such a motion by Rule 56.’” Gordon
v. Nat’l Youth Work All., 675 F.2d 356, 360 (D.C. Cir. 1982)
(quoting Fed. R. Civ. P. 12(b)).
The majority concludes that the May 2017 letter reflects
Page’s belief that the Government “leaked his identity and
revealed classified information regarding [the FISA warrants]
. . . documented in the Washington Post article.” Maj. Op. 27.
The first claim goes to Page’s belief that the Government
revealed his previously anonymized identity as a result of
United States v. Buryakov, No. 15-cr-73, 2016 WL 4417889
(S.D.N.Y. May 19, 2016). In that case, the FBI filed
documents indicating that the defendant, a Russian intelligence
agent, discussed the attempted recruiting of “Male-1” as an
intelligence asset. Two news outlets later reported that “Male-
1” was Carter Page. Testimony of Carter Page Before the H.
Permanent Select Comm. on Intel., 115th Cong. 16 nn. 31–32
(2017), https://perma.cc/74C9-RWZ9. The second claim goes
to Page’s belief that the Government leaked the existence of
the FISA surveillance to the Washington Post.10 Neither
10 The Government, for its part, draws a different inference. It
relies on the May 2017 letter and other evidence extrinsic to the
complaint as indicia that Page suspected numerous “errors and
omissions in the FISA applications,” including “about the so-called
Steele dossier.” Gov’t Br. 16–17. In other words, the Government’s
evidentiary support goes to Page’s knowledge about the lawfulness
of the surveillance. But as the Government itself argues elsewhere,

-- 50 of 65 --

24
pertains to Page’s Patriot Act claim, which instead focuses on
the Government’s use of FISA-obtained information in the
application renewal process. Even considering the May 2017
letter—which I do not believe we should—it helps the
Government not at all, as nothing in the letter indicates Page’s
awareness of his Patriot Act claim more than two years before
his administrative filing.
3. The Merits
Although I believe that Page’s Patriot Act claim is timely,
I also believe he has forfeited it. Recall, FISA § 1806(a)
provides that “[n]o information acquired from an electronic
surveillance pursuant to [FISA] may be used or disclosed by
Federal officers or employees except for lawful purposes.” 50
U.S.C. § 1806(a). In district court, Page argued that the
Government “violated the PATRIOT Act because [it]
knowingly used the unlawfully obtained” FISA information in
its renewal applications. Page v. Comey, 628 F. Supp. 3d 103,
134 (D.D.C. 2022). As the district court correctly explained,
Page mistakenly conflated §§ 1806(a) and 1809(a); that is,
Page alleged that the Government disclosed information that
was “acquired through unauthorized surveillance” when his
Patriot Act claim requires that “FISA information [be] used or
disclosed . . . for an unlawful purpose.” Id. at 134–35. On
appeal, Page now alleges that the “FISA-acquired information
was” put to the “unlawful end of misleading the FISC.” Blue
Br. 81 (internal alterations omitted). His theory works like this.
The Justice Department lacked probable cause when it obtained
Page’s claim focuses on the use or disclosure of FISA information
for an unlawful purpose. Nothing in the Washington Post’s
reporting, the May 2017 letter or the Government’s other evidence
supports a claim that the Government misused the information it
acquired.

-- 51 of 65 --

25
at least the third and fourth FISA warrants. These warrants
nevertheless issued because of the Government’s duplicity
during the application process. And because FISA-derived
information was used to support the flawed probable cause
finding, that information was put to an unlawful purpose. Id.
at 81–82. The argument is both forfeited and meritless. An
appellant “forfeits an argument by failing to press it in district
court.” Government of Manitoba v. Bernhardt, 923 F.3d 173,
179 (D.C. Cir. 2019). Page’s complaint does not assert the
legal theory that he now advances on appeal. His district court
briefs do not touch on the argument. And the district court did
not pass on its merits.
Were the argument preserved, Page’s Patriot Act claim
would fail on the merits. As Page himself asserts, FISA-
acquired information was put to a quintessentially lawful
purpose: disclosure to the FISC. Page argues that because the
totality of the evidence did not support probable cause, the
Government’s use of FISA evidence to obtain a warrant was
itself an unlawful purpose. But the Government’s duty under
FISA is to disclose its evidence to the FISC judges. Granted,
the Government cannot “mislead [the FISC] by including
[false] information . . . or . . . omit[ting] material information.”
Blue Br. 82. But the FISA information submitted to the FISC
did neither. Page’s challenge is not to the Government’s lawful
use of FISA information but to its unlawful omission of non-
FISA information. He does not allege that the Government (as
opposed to the individual defendants) used FISA-derived
information outside the warrant renewal process. He does not
allege that using FISA-derived information to apply for a
warrant constitutes an unlawful purpose. He does not allege
that the Government manipulated, altered or in any way
obfuscated the contents of the FISA-derived information.
What he alleges is that the Government should have included
additional information alongside the FISA-derived

-- 52 of 65 --

26
information, which would have led the FISC to deny the
Government’s warrant renewal applications. In other words,
his grievance is not with the Government’s “use of the
collected information” but with its “collection of the
information itself.” Al-Haramain Islamic Found., Inc. v.
Obama, 705 F.3d 845, 853 (9th Cir. 2012) (explaining that such
claims must be brought against individual defendants under
FISA rather than against the Government through the Patriot
Act). I therefore agree with the majority that Page’s Patriot Act
claim fails but not based on untimeliness.
C. FISA Section 1809(a)(2)
Finally, I do not join the majority’s holding that Page’s
§ 1809(a)(2) claim is untimely. I also believe that Page has
stated a plausible § 1809(a)(2) claim and would therefore
reverse the district court’s dismissal of this claim.
1. The Statute of Limitations
Page’s two FISA claims allege two legally distinct injuries
that can accrue at different times. Recall, Page pleaded two
claims under FISA. First, he alleged that the individual
defendants “intentionally engage[d] in [unauthorized]
electronic surveillance under color of law.” 50 U.S.C.
§ 1809(a)(1). The injury that gives rise to this claim is the act
of surveillance. Second, he alleged that the individual
defendants “disclose[d] or use[d] information obtained under
color of law by electronic surveillance, knowing or having
reason to know that the information was obtained through
[unauthorized] electronic surveillance.” Id. § 1809(a)(2). The
injury that gives rise to this claim is not the act of surveillance
but the disclosure or use of information obtained through
surveillance.

-- 53 of 65 --

27
The majority devotes only minimal attention to explaining
why Page’s § 1809(a)(2) claim is time-barred. In its view:
The [Washington Post] article [] reported that
the FBI had renewed the initial warrant “more
than once,” JA097, thereby informing readers,
including Page, that the FBI had submitted
multiple warrant renewal applications. FISA
requires warrant renewal applications to
describe information gathered from previous
surveillance . . . . The statute’s command plus
the Post report of repeated renewals sufficed to
put Page on notice[.]
Maj. Op. 19–20. With respect, I believe that recitation
misreads the statute, the record and the procedural posture. The
majority ascribes to Page a comprehensive knowledge of
FISA’s provisions. But nothing in the Washington Post’s
reporting would alert Page—or any reasonable reader—to the
Government’s use or disclosure of FISA-derived information.
My colleagues’ rejection of Page’s § 1809(a)(2) claim is
particularly glaring at the motion to dismiss stage, when our
duty is to “assume the truth of [Page’s] factual allegations and
draw all reasonable inferences in h[is] favor.” Mills, 105 F.4th
at 395.
The Washington Post article quotes unnamed Government
officials as asserting that the FISA applications to surveil Page
were “renewed more than once by the FISA court.” JA97.
Page’s § 1809(a)(2) claim turns, in part, on his assertion that
the Government used or disclosed FISA-derived information in
its three surveillance renewal applications. Page does not know
this for certain—nor do we, as the partially declassified
renewal applications retain vast redactions—but he suggests
that it is likely because FISA requires renewal applications to

-- 54 of 65 --

28
contain “a statement of the facts concerning all previous
applications that have been made . . . and the action taken on
each previous application.” 50 U.S.C. § 1804(a)(8). My
colleagues thus conclude that once Page read the Post article
and learned that the surveillance warrants had been renewed,
he was aware of his § 1809(a)(2) injury per his own theory.11
Again, with respect, I believe that conclusion does not follow.
Under the discovery rule, a plaintiff’s claim accrues “when
the plaintiff discovers, or with due diligence should have
discovered, the injury that forms the basis for the claim.”
Petrella, 572 U.S. at 670 n.4 (internal quotations omitted). In
11 The majority also relies on Page’s statements in a May 22,
2017 letter to the House Permanent Select Committee on
Intelligence. Maj. Op. 20. In addition to my concerns noted supra
II.B.2., this evidence is patently forfeited and likely waived. The
Government—but not the individual defendants—raised the letter
before us. Compare Gov’t Br. 16–18 with Red Br. 54–55. Because
it is the defendants’ burden to prove their affirmative defense and
because a statute of limitations defense is subject to ordinary rules of
forfeiture and waiver, see John R. Sand & Gravel Co. v. United
States, 552 U.S. 130, 133 (2008), Page’s congressional testimony
cannot support the individual defendants’ limitations defense. The
majority offers no justification for its use of the letter other than
noting that a court may take judicial notice of matters not subject to
reasonable dispute. Maj. Op. 20–21 n.5. But judicial notice does not
allow us to venture outside the four corners of the complaint on a
motion to dismiss to rely on evidence the defendants themselves
forfeited. And this evidence is more than forfeited. At oral
argument, counsel for the individual defendants was asked why he
had not raised Page’s public statements made between April and
November 2017; counsel disclaimed any reliance on these
statements. See Oral Arg. Tr. 52:15–53:11. Counsel’s “intentional
relinquishment” of any reliance on the May 2017 letter constitutes a
waiver. Kontrick v. Ryan, 540 U.S. 443, 458 n.13 (2004).

-- 55 of 65 --

29
other words, accrual may occur through actual or constructive
knowledge. Both bases should fail at this stage.
Section 1804(a) requires the Government to disclose “all
previous [FISA] applications” and, in the case of surveillance
extensions, “a summary statement of the foreign intelligence
information obtained . . . or a reasonable explanation of the
failure to obtain such information.” 50 U.S.C. § 1804(a)(8),
(11) (emphasis added). In other words, the statute plainly
contemplates that a renewal application may not disclose
FISA-derived information. For example, if the Government
tries but fails to install a bugging device on a target’s phone
within the statutorily prescribed deadline, see id. § 1805(d), it
could renew its application without disclosing or using
“information obtained under color of law by electronic
surveillance.” Id. § 1809(a)(2).
To conclude that Page had actual knowledge of his injury
at the time of the Washington Post article, we must infer that
Page (i) read the one line in the entire article that discussed
renewal applications, (ii) read the FISA statute, (iii) found the
precise portion of the statute addressing applications to the
FISC and (iv) ascertained from the text’s oblique language that
the Government used FISA-derived information in its warrant
reauthorization requests. That is one inferential leap too many,
especially at the dismissal stage. Page is a layman—not a
lawyer—and the entire FISA process occurs behind closed
doors.12 Even now, Page can only speculate about the contents
12 My colleagues gesture at Page’s “multiple advanced degrees”
as somehow justifying their stringent treatment of his claim. Maj.
Op. 19. They do not explain how Page’s resume provides any insight
into the ins and outs of FISA. But even taking their point on its own
terms, no expert could discern from the “public information”
available as of April 2017 that a viable § 1809(a)(2) lay against the

-- 56 of 65 --

30
of the FISA renewal applications because they have been only
partially declassified. The evidentiary vacuum existing even
now should not allow us to hold, as a matter of law, that Page
possessed actual knowledge of his injury from a single
newspaper article necessarily bereft of detail. And, again, what
Page “knew and when []he knew it, in the context of a statute
of limitations defense, are questions of fact for the jury.”
Goldman v. Bequai, 19 F.3d 666, 672 (D.C. Cir. 1994) (internal
alterations omitted) (quoting Riddell v. Riddell Wash. Corp.,
866 F.2d 1480, 1484 (D.C. Cir. 1989)).
If the majority instead means to suggest that Page had
inquiry notice of his § 1809(a)(2) injury, I believe that
conclusion is also premature at the dismissal stage. Whether a
plaintiff exercising “reasonable diligence should have known
of a cause of action is a question of fact for the jury.” Klein v.
Cornelius, 786 F.3d 1310, 1321 (10th Cir. 2015). Indeed, the
district court thought it so unlikely that the individual
defendants used FISA-acquired information in their renewal
applications that the court dismissed Page’s § 1809(a)(2) claim
on the merits. See Page, 628 F. Supp. 3d at 129.
Finally, even if I were to credit that the Post article gave
Page actual or constructive knowledge of his § 1809(a)(2)
claim as it relates to the individual defendants’ use of FISA-
acquired information in renewal applications, that knowledge
would apply only to the first of Page’s two § 1809(a)(2) claims.
As further described infra,13 Page separately alleges that FBI
employees Peter Strzok and Lisa Page leaked FISA-acquired
information to the Washington Post and to the New York
individual defendants. Id. As explained, a FISA warrant can be
renewed without using or disclosing any FISA-derived information.
13 See discussion II.C.3.

-- 57 of 65 --

31
Times. The majority gives no reason that the disclosure/use
claim is untimely. I believe there is none.
* * *
The individual defendants assert—and the majority
erroneously credits—that Page’s § 1809(a)(2) claim accrued
when the first word of the FBI’s surveillance surfaced:
April 11, 2017, the date the Washington Post disclosed that the
Government had obtained a FISA warrant to surveil Page.
Page’s second amended complaint alleges that he did not
apprehend his injury until December 9, 2019—almost 32
months later—with the publication of the OIG’s Report.
The majority disposes of this critical factual dispute with
a lone sentence from the Post article, which quotes an
anonymous Government official speaking off the record and
alleging that the FISA warrant was renewed. Never mind that
the Government’s official organs—the White House, the FBI
and the Justice Department—all “declined to comment” to the
Post. JA96. Never mind that the Post article catalogs
“unsubstantiated claims about U.S. Surveillance” and quotes
the former Director of National Intelligence as saying, “U.S.
law enforcement agencies did not have any FISA orders to
monitor the communications of Trump . . . or his campaign.”
JA99. And never mind that the Post report initially contained
erroneous information that was later corrected. See JA100
(updating the report to correct two factual errors in the initial
publication). The majority sweeps all this aside and concludes
that no factfinder could conclude that Page possessed anything
less than encyclopedic knowledge of the FISA renewal
process—and oracular insight into the FBI’s bases for seeking
renewal—all from the lone Post article. A jury—the traditional
factfinders—will never be given the opportunity to adjudicate
these contested facts because my colleagues conclude that

-- 58 of 65 --

32
Page’s complaint does not even plausibly assert that he was
unaware that the Government used and or disclosed FISA-
derived information about him.
As we have repeatedly held, “courts should hesitate to
dismiss a complaint on statute of limitations grounds based
solely on the face of the complaint because statute of
limitations issues often depend on contested questions of fact.”
Momenian v. Davidson, 878 F.3d 381, 387 (D.C. Cir. 2017)
(quotation omitted); see also Jones v. Rogers Mem’l Hosp., 442
F.2d 773, 775 (D.C. Cir. 1971) (“[T]he complaint cannot be
dismissed” under a 12(b)(6) statute of limitations defense
“unless it appears beyond doubt that the plaintiff can prove no
state of facts in support of his claim that would entitle him to
relief.”) (emphasis added). This record is riddled with doubts.
Because the individual defendants have not come close to
satisfying the “strict standard” at the motion-to-dismiss stage
of demonstrating that Page’s “claims are conclusively time-
barred on the face of the complaint,” I cannot join the majority
holding. Capitol Servs. Mgmt., Inc. v. Vesta Corp., 933 F.3d
784, 787 (D.C. Cir. 2019).
2. The FISA Warrant Renewal Allegations
Turning to the merits, I believe that Page has stated a
plausible violation of § 1809(a)(2) and would therefore reverse
the district court’s dismissal of this claim. Page’s complaint
alleges that the individual defendants “unlawfully . . .
disclosed[] and used . . . the results of the surveillance on him,”
including through “leaks to the media, obtaining each
subsequent renewal warrant, [and] obtaining additional
surveillance and investigative information.” JA70. The
complaint adds that the defendants “used the information
obtained from the issued FISA warrants to obtain each of the
subsequent warrants as well as to . . . obtain or justify

-- 59 of 65 --

33
additional investigative measures against Dr. Page . . . [and] to
request investigative assistance from other law enforcement
and intelligence agencies.” JA70–71 (emphasis removed).
Elsewhere, the complaint describes each of the individual
defendants’ roles in the Government’s investigation, including
their roles in obtaining FISA warrant renewals from the FISC.
At the same time, Page fails to bridge the gap between these
two allegations; that is, he does not explain how an individual
defendant used the fruits of FISA surveillance in investigating
or approving applications to the FISC. The district court
treated this gap as a chasm into which all of Page’s claims
incurably fell. In my view, that unduly cabined view of the
complaint was inappropriate at the pleading stage.
Instead, the district court was required to accept the
validity of Page’s factual allegations and “draw all reasonable
inferences” from the complaint in Page’s favor. Mills, 105
F.4th at 395. Those allegations and reasonable inferences tip
Page’s complaint over the plausibility line. For example, Page
alleges that FBI Director James Comey personally signed the
second and third FISA warrant applications and Deputy
Director Andrew McCabe personally signed the fourth
application. And Page alleges that information gathered from
earlier FISA surveillance was included in each subsequent
reauthorization application. In isolation, neither action links an
individual defendant to a disclosure or use. But the Court must
read “the allegations of the complaint as a whole.” Matrixx
Initiatives, Inc. v. Siracusano, 563 U.S. 27, 47 (2011). That
reading makes plain that the Director and the Deputy Director
used or disclosed FISA-derived information when they
separately sought warrant reauthorization from the FISC.
The district court rejected this reauthorization theory
because, in its view, Page’s complaint was a web of
contradictions: the complaint alleged that surveillance

-- 60 of 65 --

34
“produced ‘no evidence at all’” that Page was a Russian agent,
which “undercut[] his claim that its results were used to procure
the renewal warrants.” Page, 628 F. Supp. 3d at 129. I see no
contradiction. Accepting the complaint’s facts as true, the FBI
captured some of Page’s communications and informed the
FISC of the contents of those communications,
notwithstanding that the communications did not squarely peg
Page as a Russian asset. FISA’s ex parte procedures hold the
Government to “a heightened duty of candor,” In re Accuracy
Concerns Regarding FBI Matters Submitted to the FISC, 411
F. Supp. 3d 333, 336 (FISC 2019), which means it must include
all evidence—incriminating and mitigating—in its FISC
applications. There is no basis to conclude, as the district court
may have done, that the FISC would treat the absence of
evidence as evidence of absence in reauthorizing surveillance
of Page. And in any event, it was not the district court’s role
to assess the likelihood (assuming plausibility) of Page’s
underlying factual allegations. At the motion to dismiss stage,
the plaintiff’s job is to plead, not to prove.
This is particularly true in the context of FISA litigation,
where “the necessary information lies within defendants’
control” and so a plaintiff must resort to “pleadings on
information and belief.” Kowal v. MCI Commc’ns Corp., 16
F.3d 1271, 1279 n.3 (D.C. Cir. 1994). “Specific facts are not
necessary” to clear the low bar of Rule 8(a)(2)—nor could such
facts be proffered pre-discovery in all but the most
extraordinary of FISA civil suits. Erickson v. Pardus, 551 U.S.
89, 93 (2007). At this stage in the litigation, it suffices that
Page alleged that (i) FISA-derived information was used and
disclosed in applying for FISA warrants, (ii) at least some of
the individual defendants personally engaged in that use or
disclosure through their involvement in the application process
and (iii) at least some of these defendants knew or should have
known that each earlier FISA application included material

-- 61 of 65 --

35
omissions or falsehoods and, thus, the compiled information
was tainted by an improper process. Granting Page “the benefit
of all inferences that can be derived from” his allegations,
Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012),
they are more than sufficient to “nudge[] [Page’s] claims across
the line from conceivable to plausible.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
3. The Media Leak Allegations
Page’s separate use-and-disclosure theory expressly
directed at defendants Peter Strzok and Lisa Page survives for
a similar reason. In their FBI employment, they allegedly
conspired to produce a public narrative that Page was an agent
of Russia through selective leaks of FISA information to the
media. Their scheme led to the Washington Post story and,
ultimately, to the cascade of events that have so despotically
damaged Page’s reputation. Page pursues his claims against
these defendants down two paths. The first lacks merit but the
second alleges a viable § 1809(a)(2) claim.
Page first argues that “Strzok and Lisa Page gave [his]
identity to the [Washington Post],” and that this identification
alone constitutes a § 1809(a)(2) violation. Blue Br. 78–79. As
the individual defendants note, however, Page does not “argue
that defendants obtained his identity by electronic
surveillance.” Red Br. 49–50; see 50 U.S.C. § 1809(a)(2)
(encompassing only intentional disclosure or use of
“information obtained . . . by electronic surveillance”). They
are correct; Page’s complaint extensively documents the
defendants’ investigation into and targeting of him before any
electronic surveillance commenced. Page therefore cannot
prevail on his first argument.
Page separately alleges that Strzok and Lisa Page “leaked
. . . the results of the” FISA surveillance “to media outlets,

-- 62 of 65 --

36
including the New York Times [and] the Washington Post.”
JA69–70. This theory has traction. If proven, it would
constitute a naked “intentional[] disclos[ure] or use[].” 50
U.S.C. § 1809(a)(2). If proven, it would mean that those two
jumped-up civil servants—“neither servants nor civil,” as
Churchill once described their antecedents—plotted to pervert
the law.
The district court discounted Page’s allegations because
“[n]either the Times nor the Post article cited in the complaint
contains any mention of the fruits of Page’s surveillance.”
Page, 628 F. Supp. 3d at 129. That may be a strong argument
on summary judgment. But not at this stage when the district
court must accept Page’s allegations as true and ask whether
they state a plausible claim for relief under the law. They do.
My colleagues commit the same error as the district court.
They conclude that Page plausibly alleges that Strzok and Lisa
Page “leaked to the Washington Post and the New York Times
the existence of and putative bases for FISA warrants to surveil
him” but not “that [Lisa] Page or Strzok leaked the FISA
warrants’ results.” Maj. Op. 22. This is so because the former
was “confirmed by the OIG Report” yet the latter rests on a
purportedly “naked assumption.” Id. at 22–23. With respect,
our role at this stage is not to dissect the record in search of
rigorous proof. If Page’s allegations support a reasonable
inference that the defendants leaked the FISA warrants, that
ends the matter. In my view, the allegations support such an
inference. Two leading papers of record spread across their
front pages details of the Government’s surveillance of Page. I
do not see how the majority can find it implausible that Strzok
and Lisa Page leaked information obtained from that
surveillance to the media—especially when my colleagues
acknowledge that these leakers did unlawfully disclose the
existence of and bases for the surveillance. Nor do I see how

-- 63 of 65 --

37
any plaintiff could ever jump the majority’s pleading hurdle
absent some form of pre-suit discovery. But for the fortuity of
the OIG Report, Page’s entire complaint would necessarily
have been pleaded exclusively on information and belief—or,
to use my colleagues’ words, on “naked assumption[s].”
It is irrelevant that neither media article describes the fruits
of the surveillance. Both articles name Carter Page. They
reveal that he was the target of FISA surveillance. And on
Page’s telling, the surveillance had yet to uncover any
information whatsoever to link him to Russia as its agent. It is
at least plausible to conclude that the reporters were leaked
some portion of Page’s communications and chose to focus
their coverage on the existence of the surveillance rather than
on the substance of what the surveillance produced. As
alleged, Strzok and Lisa Page were the sources of these leaks.
And as alleged, Strzok and Lisa Page knew or had reason to
know that the information was obtained through improperly
authorized surveillance. At summary judgment, the absence of
evidence of leaked surveillance contents—as opposed to the
fact of surveillance itself—could prove dispositive. For now,
however, the Court must accept the complaint’s allegations as
true and, on that basis, the district court erred in dismissing
Page’s § 1809(a)(2) claim.
III. CONCLUSION
FISA’s grand bargain was struck after the public learned
of an array of intelligence scandals involving the Executive’s
rampant and lawless spying on American citizens. The
enacting Congress aimed to subject the President’s unbridled
surveillance authority to the oversight of the other two
branches and, in exchange, surveillance was allowed to take
place away from the public eye. At the core of this bargain

-- 64 of 65 --

38
were FISA’s warrant procedures. Yet, as this case makes
shockingly clear, those procedures have proven inadequate.
From start to finish, the FISA process was marred by
governmental omissions and commissions that led a pliant
court to authorize surveillance on an American citizen. FISA’s
requirements may sometimes prove difficult to satisfy but
disregarding them is the gateway to naked violations of our
civil liberties. I take some solace in the knowledge that the
Government’s egregious conduct roused the Congress to
action. In response to this very case, it amended FISA to
increase oversight and impose new penalties on individuals
who crash FISA’s guardrails. See Reforming Intelligence and
Securing America Act, Pub. L. No. 118-49, 138 Stat. 862
(2024). Alas, this is cold comfort to Page. Nevertheless, I
believe that Page’s first FISA claim is untimely and his Patriot
Act claim is both forfeited and fails on the merits. I therefore
join my colleagues in affirming the dismissal of those claims
but I would give Page his day in court on his claim brought
pursuant to 50 U.S.C. § 1809(a)(2). With regard to that claim,
I respectfully dissent.

-- 65 of 65 --