Jewel v. Nat'l Sec. Agency

• Decision Date: 18 December 2015
• Docket Number: No. 15–16133.,15–16133.
• Citation: 810 F.3d 622
• Parties: Carolyn JEWEL; Erik Knutzen; Joice Walton, on behalf of themselves and all others similarly situated, Plaintiffs–Appellants, and Tash Hepting; Gregory Hicks, Plaintiffs, v. NATIONAL SECURITY AGENCY; Keith B. Alexander, Director, in his official and personal capacities; Michael V. Hayden, in his personal Capacity; United States of America; George W. Bush, President of the United States, in his official and personal capacities; Richard B. Cheney, in his personal capacity; David S. Addington, in his personal capacity; Department of Justice; Alberto R. Gonzales, in his personal capacity; John D. Ashcroft, in his personal capacity; John M. McConnell, Director of National Intelligence, in his official and personal capacities; John D. Negroponte, in his personal capacity; Michael B. Mukasey, Attorney General; Barack Obama; Eric H. Holder, Jr., Attorney General; Dennis C. Blair, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

810 F.3d 622

Carolyn JEWEL; Erik Knutzen; Joice Walton, on behalf of themselves and all others similarly situated, Plaintiffs–Appellants,andTash Hepting; Gregory Hicks, Plaintiffs,

v.NATIONAL SECURITY AGENCY; Keith B. Alexander, Director, in his official and personal capacities; Michael V. Hayden, in his personal Capacity; United States of America; George W. Bush, President of the United States, in his official and personal capacities; Richard B. Cheney, in his personal capacity; David S. Addington, in his personal capacity; Department of Justice; Alberto R. Gonzales, in his personal capacity; John D. Ashcroft, in his personal capacity; John M. McConnell, Director of National Intelligence, in his official and personal capacities; John D. Negroponte, in his personal capacity; Michael B. Mukasey, Attorney General; Barack Obama; Eric H. Holder, Jr., Attorney General; Dennis C. Blair, Defendants–Appellees.

No. 15–16133.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 28, 2015.

Filed Dec. 18, 2015.

Richard R. Wiebe (argued), Law Office of Richard R. Wiebe; Cindy A. Cohn, Lee Tien, Kurt Opsahl, James S. Tyre, Mark Rumold, Andrew Crocker, Jamie L. Williams, and David Greene, Electronic Frontier Foundation; Rachael E. Meny, Michael S. Kwun, Audrey Walton–Hadlock, Benjamin W. Berkowitz, Justina K. Sessions, and Philip J. Tassin, Keker & Van Nest, LLP, San Francisco, CA; Thomas E. Moore III, Royse Law Firm, PC, Palo Alto, CA; Aram Antaramian, Law Office of Aram Antaramian, Berkeley, CA, for Plaintiffs–Appellants.

Henry C. Whitaker (argued), Douglas N. Letter, and H. Thomas Byron III, Appellate Staff, Civil Division, United States Department of Justice, Washington, DC, for Defendants–Appellees.

Before: MICHAEL DALY HAWKINS, SUSAN P. GRABER, and M. MARGARET McKEOWN, Circuit Judges.

OPINION

McKEOWN Circuit Judge:

This appeal is the second trip to our court for a group of plaintiffs in their long- running statutory and constitutional challenges to government surveillance programs. In the last appeal, we reversed the district court's dismissal of all claims on standing grounds and remanded for further proceedings, including determination of whether the "claims are foreclosed by the state secrets privilege." Jewel v. Nat'l Sec. Agency, 673 F.3d 902, 905 (9th Cir.2011). Several years of further proceedings have yet to produce a final judgment. Most recently, the district court dismissed a Fourth Amendment claim—which was only one among several claims—regarding Internet surveillance, on the grounds that plaintiffs lacked standing and that their claim was barred by the state secrets privilege. Jewel v. Nat'l Sec. Agency, No. C08–04373, 2015 WL 545925, at *1 (N.D.Cal. Feb. 10, 2015). The court then certified that single issue as final under Federal Rule of Civil Procedure 54(b).

The government filed a motion to dismiss the appeal for lack of jurisdiction, arguing that certification was improper under Rule 54(b). We agree. Our task is to address the juridical concerns surrounding the appeal of less than a complete judgment and to "scrutinize the district court's evaluation of such factors as the interrelationship of the claims so as to prevent piecemeal appeals in cases which should be reviewed only as single units." Curtiss–Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 10, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980). Because the Fourth Amendment question is intertwined with several other issues that remain pending in district court and because this interlocutory appeal would only prolong final resolution of the case, we conclude that the Rule 54(b) certification was not warranted and dismiss the appeal for lack of jurisdiction.

BACKGROUND

This appeal arises out of ongoing litigation concerning Internet and cell phone surveillance programs the government began in the aftermath of the terrorist attacks on September 11, 2001.¹ In 2008, Carolyn Jewel, Tash Hepting, Gregory Hicks, Erik Knutzen, and Joice Walton filed a complaint on behalf of themselves and others similarly situated against the United States, the National Security Agency ("NSA"), and a number of high-level government officials in their personal and official capacities. The complaint included seventeen counts, raising both constitutional and statutory claims and seeking injunctive relief and monetary damages. In summary, the complaint alleges that government officials engaged in continuing warrantless surveillance within the United States that had begun under a secret presidential order. The "terrorist surveillance program," some aspects of which were publicly acknowledged by the government in 2005, involved collecting data on millions of Internet and cell phone users. According to plaintiffs, the telecommunications company AT & T collaborated with the NSA to divert Internet traffic into secure rooms at AT & T facilities in San Francisco and to provide customer records to the government. Through this collaboration, the government allegedly collected data on cellular telephone communications, text messages, email, and other forms of Internet communication without a warrant. Jewel, 673 F.3d at 906.

In 2010, the district court dismissed the action with prejudice, holding that plaintiffs lacked a sufficiently particularized injury and therefore lacked standing on all claims. Jewel, 2010 WL 235075, at *1. On appeal, we reversed and held that "Jewel's claims are not abstract, generalized grievances and instead meet the constitutional standing requirement of concrete injury. Nor do prudential considerations bar this action." Jewel, 673 F.3d at 905. The case was remanded to the district court "with instructions to consider, among other claims and defenses, ... the government's assertion that the state secrets privilege bars this litigation." Id. at 913–14.

After remand, the district court addressed the interaction between the state secrets privilege and sovereign immunity as those issues pertain to the statutory claims under the Foreign Intelligence Surveillance Act ("FISA"), the Electronic Communications Privacy Act ("Stored Communications Act"), the Wiretap Act, and the Administrative Procedure Act. Jewel v. Nat'l Sec. Agency, 965 F.Supp.2d 1090 (N.D.Cal.2013). The district court determined:

• The government's state secrets privilege does not compel complete dismissal of the action because sufficient information regarding the surveillance program had been made public such that the subject matter of the suit itself is not a state secret. Id. at 1102–03.

• The "FISA procedural mechanism prescribed under 50 U.S.C. § 1806(f) preempts application of the state secrets privilege." Id. at 1103. Title 18 U.S.C. § 2712 applies to claims under the Stored Communications Act and the Wiretap Act, thus preempting the state secrets doctrine for those claims. Id. at 1105, 1107–08.

• The damages claims under FISA are barred by sovereign immunity, but damages are not barred under the Stored Communications Act or the Wiretap Act. Id. at 1108.

• Plaintiffs cannot seek injunctive relief for their Stored Communications Act and Wiretap Act claims because Patriot Act § 223, amending 18 U.S.C. §§ 2520(a) and 2707(a), impliedly limited authority to sue the United States for forms of relief other than damages. Id. at 1109.

The district court's order disposed of eleven of the seventeen claims and explicitly declined to address any of the constitutional claims, which included First and Fourth Amendment challenges to Internet and phone surveillance programs and an alleged violation of the separation of powers principle. Id. at 1097, 1112. Nor did the court address the possible defenses, such as qualified immunity, that might be available to individual defendants. The district court requested further briefing on the scope of FISA preemption with regard to the constitutional claims, noting that plaintiffs had the burden to show standing to sue without risking impermissible damage to ongoing national security efforts. Id. at 1112. The court also requested briefing on the "recent disclosure of the government's continuing surveillance activities and the statement by the Director of National Intelligence that certain information ... should be declassified and immediately released to the public." Id. at 1113.

While the parties were in the process of briefing these questions, three of the five plaintiffs, Jewel, Knutzen, and Walton (collectively "Jewel" or the "Jewel plaintiffs"), moved for partial summary judgment on one aspect of their Fourth Amendment claim related specifically to Internet interception because they thought the public record supported their claim. Jewel specifically limited the scope of the motion to only one aspect of the Fourth Amendment claim "[a]t this time."² Jewel alleges that the government is engaging in a dragnet Internet interception program called "Upstream" collection, and that this program is an element of the government's collection of communications under FISA § 702. Under this program, the NSA designates "non-U.S. persons located outside the United States who are reasonably believed to possess or receive, or are likely to communicate, foreign intelligence information." Jewel, 2015 WL 545925, at *1. Once specific telephone numbers or email addresses associated with these individuals are identified, the NSA, assisted by the telecommunications providers, filters Internet communications "in an effort to remove all purely domestic communications" in order to capture designated communications. Id. at *2. The Jewel plaintiffs contend that this program constitutes surveillance of private communications without a warrant or individualized suspicion, in violation of the Fourth Amendment. Id. The government has "acknowledged the existence of the Upstream collection process.... [, h]owever, the technical details of the collections process remain classified." Id.

In an order denying Jewel's motion for summary judgment and granting the government's cross-motion, the district court held that p...