Jewel v. Nat'l Sec. Agency

• Decision Date: 29 December 2011
• Docket Number: 10–15638.,Nos. 10–15616,s. 10–15616
• Citation: 12 Cal. Daily Op. Serv. 15,2011 Daily Journal D.A.R. 18617,673 F.3d 902
• Parties: Carolyn JEWEL; Tash Hepting; Gregory Hicks; Erik Knutzen; Joice Walton, on behalf of themselves and all others similarly situated, Plaintiffs–Appellants, 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 Hussein Obama; Eric H. Holder, Jr., Attorney General; Dennis C. Blair, Defendants–Appellees.Virginia Shubert; Noha Arafa; Sarah Dranoff; Hilary Botein, individually and on behalf of all others similarly situated, Plaintiffs–Appellants, v. George W. Bush; Michael V. Hayden; Keith B. Alexander; Alberto R. Gonzales; John Ashcroft; United States of America, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

12 Cal. Daily Op. Serv. 15

2011 Daily Journal D.A.R. 18,617

673 F.3d 902

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

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 Hussein Obama; Eric H. Holder, Jr., Attorney General; Dennis C. Blair, Defendants–Appellees.Virginia Shubert; Noha Arafa; Sarah Dranoff; Hilary Botein, individually and on behalf of all others similarly situated, Plaintiffs–Appellants,

v.George W. Bush; Michael V. Hayden; Keith B. Alexander; Alberto R. Gonzales; John Ashcroft; United States of America, Defendants–Appellees.

Nos. 10–15616

10–15638.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 31, 2011.Filed Dec. 29, 2011.

Cindy Cohn, Lee Tien, Kurt Opsahl, Kevin S. Bankston, James S. Tyre, Electronic Frontier Foundation, San Francisco, CA; Rachael E. Meny, Paula L. Blizzard, Michael S. Kwun, Audrey Walton–Hadlock, Keker & Van Nest LLP, San Francisco, CA; Richard R. Wiebe, Law Office of Richard R. Wiebe, San Francisco, CA; Thomas E. Moore III, The Moore Law Group, Palo Alto, CA; and Aram Antaramian, Law Office of Aram Antaramian, Berkeley, CA, for the plaintiff-appellant.

Matthew D. Brinckerhoff, Ilann Margalit Maazel, Adam R. Pulver, Emery Celli Brinckerhoff & Abady LLP, New York, NY, for the plaintiff-appellant [10–15638].

H. Thomas Byron, III, DOJ—U.S. Department of Justice, Washington, DC, for the defendant-appellee [10–15616 and 10–15638].Appeal from the United States District Court for the Northern District of California, Vaughn R. Walker, District Judge, Presiding. D.C. Nos. 3:08–cv–04373–VRW, M:06–cv–01791–VRW, 3:07–cv–00693–VRW.Before: HARRY PREGERSON, MICHAEL DALY HAWKINS, and M. MARGARET McKEOWN, Circuit Judges.

OPINION

McKEOWN, Circuit Judge:

This case is one of many arising from claims that the federal government, with the assistance of major telecommunications companies, engaged in widespread warrantless eavesdropping in the United States following the September 11, 2001, attacks. At issue in this appeal is whether Carolyn Jewel and other residential telephone customers (collectively “Jewel”) have standing to bring their statutory and constitutional claims against the government for what they describe as a communications dragnet of ordinary American citizens.

In light of detailed allegations and claims of harm linking Jewel to the intercepted telephone, internet and electronic communications, we conclude 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. Although there has been considerable debate and legislative activity surrounding the surveillance program, the claims do not raise a political question nor are they inappropriate for judicial resolution. Finally, we do not impose, as suggested by the government, a heightened standing requirement simply because the case involves government officials in the national security context. We reverse the district court's dismissal on standing grounds and remand for further proceedings. We leave for the district court to consider in the first instance the government's alternative argument that Jewel's claims are foreclosed by the state secrets privilege.

Background

I. Complaint

Jewel filed this putative class action “on behalf of [herself] and a class of similarly situated persons”: “ordinary Americans who are current or former subscribers to AT & T's telephone and/or Internet services.” At this stage, our inquiry focuses on Jewel and the allegations as they pertain to her. Stearns v. Ticketmaster Corp., 655 F.3d 1013, 1021 (9th Cir.2011). Jewel sued federal government agencies and government officers in their official and personal capacities. She did not name any telecommunications companies as defendants. ¹ Jewel alleged that the “[c]ommunications of Plaintiffs and class members have been and continue to be illegally acquired by Defendants using surveillance devices attached to AT & T's network.” She claimed that these actions violated the First and Fourth Amendments, the constitutional doctrine of separation of powers, and a variety of statutes—the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. § 1801 et seq., the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. § 2510 et seq., the Stored Communications Act (“SCA”), 18 U.S.C. § 2710 et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. The complaint requested both equitable and monetary relief.

According to the complaint, on October 4, 2001, President Bush and other government defendants issued a secret presidential order that authorized warrantless surveillance within the United States. Jewel asserted that she was specifically affected because AT & T, in collaboration with the National Security Agency (“NSA”), diverted all of her internet traffic into “SG3 Secure Rooms” in AT & T facilities across the country, including AT & T's Folsom Street facility in San Francisco, “and information of interest [was] transmitted from the equipment in the SG3 Secure Rooms to the NSA based on rules programmed by the NSA.” Jewel's complaint focused on AT & T, its San Francisco facility, and the SG3 Secure Rooms.

Jewel further alleged that the governmental defendants operated a “dragnet collection” of communications records by “continuously solicit[ing] and obtain[ing] the disclosure of all information in AT & T's major databases of stored telephone and Internet records.” These records “concern [ ] communications to which Plaintiffs and class members were a party.” For example, Jewel claims that,

[u]sing [a] shadow network of surveillance devices, Defendants have acquired and continue to acquire the content of a significant portion of phone calls, emails, instant messages, text messages, web communications and other communications, both international and domestic, of practically every American who uses the phone system or the Internet, including Plaintiffs and class members, in an unprecedented suspicionless general search through the nation's communications network.

The complaint goes on to allege that defendants were directly involved in the schemes, which were “directly performed, and/or aided, abetted, counseled, commanded, induced, or procured, by Defendants.”

II. The District Court's Decision

The government defendants moved to dismiss and alternatively sought summary judgment as to all claims. They argued that the court lacked jurisdiction over Jewel's statutory claims because the government did not waive its sovereign immunity. The government sought summary judgment on the remaining claims “because information necessary to litigate plaintiffs' claims is properly subject to and excluded from use in the case by the state secrets privilege and related statutory privileges.” Although not argued by the government or briefed by the parties, the district court granted the motion to dismiss because Jewel lacked standing to bring her claims.² The district court dismissed the claims with prejudice and without leave to amend.³

The district court carefully reviewed the complicated procedural history, both of the MDL wiretapping cases generally and the motions at issue in this case specifically. The district court held that Jewel failed to make out prima facie allegations necessary to establish that she was an “aggrieved person” under the FISA. The court acknowledged that Jewel's complaint included specific allegations that the NSA used AT & T's Folsom Street facility, but found that “[the] complaint contains no other allegations specifically linking any of the plaintiffs to the alleged surveillance activities,” and therefore held that Jewel lacked standing. We disagree.

Analysis

The central issue on appeal is whether Jewel has standing to sue the government defendants, a question of law that we review de novo. Bernhardt v. Cnty. of Los Angeles, 279 F.3d 862, 867 (9th Cir.2002). “Because the district court sua sponte dismissed [the] complaint on its face,” we “review ... standing as if raised in a motion to dismiss. When reviewing motions to dismiss, [the court] must accept all factual allegations of the complaint as true and draw all reasonable inferences in favor of the nonmoving party.” Id. (internal quotation marks and citation omitted). General factual allegations of injury resulting from the defendant's conduct may suffice, as we “presum[e] that general allegations embrace those specific facts that are necessary to support the claim.” Lujan v. Nat'l Wildlife Fed. (“Nat'l Wildlife Fed.”), 497 U.S. 871, 889, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). Because this appeal arises from dismissal under Federal Rule of Civil Procedure 12(b)(6), Jewel's allegations are accepted as true.⁴

I. Principles of Standing

Standing doctrine is well established: “Article III ... gives the federal courts jurisdiction over only ‘cases and controversies.’ ” Whitmore v. Arkansas, 495 U.S. 149, 154–55, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). The oft-cited Lujan v. Defenders of Wildlife (“ Lujan ”) restates the three requirements that must be met for Article III standing: (1) an injury in fact that (2) is fairly traceable to the challenged conduct and (3) has some likelihood of redressability. 504 U.S. 555, 560–61, 112...