U.S. v. Adams, CV-06-97-B-W.

Citation473 F.Supp.2d 108
Decision Date08 February 2007
Docket NumberNo. CV-06-97-B-W.,CV-06-97-B-W.
PartiesUNITED STATES of America, Plaintiff, v. Kurt ADAMS, et al., Defendants.
CourtUnited States District Courts. 1st Circuit. United States District Court (Maine)

Alexander K. Haas, Carl J. Nichols, U.S. Department of Justice, Washington, DC, for Plaintiff.

Peter B. Lafond, Office of the Attorney General, Christopher C. Taub, Maine Attorney General's Office, Linda Conti, Assistant Attorney General, Augusta, ME, John A. Rogovin, Samir C. Jain, Wilmer Cutler, Pickering, Hale and Dorr LLP, Washington, DC, William D. Hewitt, Pierce, Atwood LLP, Portland, ME, for Defendants.

John M.R. Paterson, Bernstein, Shur, Zachary L. Heiden, Maine Civil Liberties Union, Christopher B. Branson, Murray, Plumb & Murray, Portland, ME, for Intervenor Defendants.

Wayne R. Jortner, William C. Black Maine Public Advocate Office, Augusta, ME, for Movant.

ORDER ON UNITED STATES' MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION

WOODCOCK, District Judge.

On May 8, 2006, James Douglas Cowie and 21 other Verizon customers initiated a "Ten Person Complaint" with the Maine Public Utilities Commission (PUC) that has become a test of wills between the United States of America and the state of Maine. The PUC recently issued a subpoena against Verizon New England, Inc.1 (Verizon), commanding it to attend a hearing, scheduled for tomorrow afternoon, to show cause as to why Verizon should not be held in contempt for its failure to comply with an August 9, 2006 PUC Order. On August 21, 2006, the United States filed this law suit to prevent Verizon from complying with the PUC Order, claiming that compliance would cause grave harm to national security. The United States now moves to enjoin the PUC from attempting to force compliance with its Order and proceeding with contempt proceedings against Verizon. The Court grants the United States' motion, concluding that a contempt hearing against Verizon before the PUC is an inappropriate forum for resolving a conflict between the United States and the state of Maine and that the United States' national security concerns are more compelling than the PUC's countervailing interest in speedy compliance with its August 9, 2006 Order.

I. STATEMENT OF FACTS
A. The Ten Person Complaint

On May 8, 2006, James Douglas Cowie and 21 other customers (Customers) of Verizon filed a "Ten Person Complaint"2 with the Maine Public Utilities Commission (PUC), requesting that the PUC investigate whether Verizon provided customer data to the National Security Agency (NSA) in violation of state and federal law. The Cowie complaint triggered the statutory procedure a public utility must follow upon receipt of a complaint: unless the PUC finds that the "complaint is without merit," it is required to "promptly set a date for a public hearing" and must "render a decision upon the complaint no later than 9 months after its filing." 35-A M.R.S.A. § 1302(2). The State contends that the statutory nine-month period lapses on February 9, 2007. After the PUC staff served notice of the complaint on Verizon, Verizon responded by neither admitting nor denying the allegations in the complaint, but arguing that the PUC had no authority to undertake the inquiry. Soon the Office of the Maine Public Advocate, the Maine Civil Liberties Union, and the Customers were arrayed on one side of the matter and Verizon was joined on its side by the United States Department of Justice. Before the PUC considered the matter, the United States wrote the PUC a lengthy letter, supporting Verizon's motion to dismiss and explaining that the "proceeding would place Verizon in a position of having to confirm or deny the existence of information that cannot be confirmed or denied without harming national security." Letter from Assistant Att'y Gen. Keisler to Chairman Kurt Adams dated July 28, 2006, Af. of Karen Geraghty, Ex. 4 (Docket # 75).

B. The PUC Order of August 9, 2006

Matters came to a head on August 9, 2006, when the PUC issued an Order against Verizon. The Order noted that "[n]otwithstanding its claimed inability to discuss its relationship to any classified NSA programs," Verizon, in its response to the complaint, referred to two press releases, issued on May 12, 2006 and May 16, 2006, which made seven representations about whether it had provided customer information to the NSA.3 Compl. Ex. 5 at 2 (Docket # 1) (PUC Order). After concluding that the representations in the press releases were "made to the [PUC] for the purpose of influencing the [PUC's] decision as to whether or not to open an investigation," the PUC Order cited a provision of Maine law that makes it a crime for "any person to make or cause to be made, in any document filed with the [PUC] or in any proceeding under this Title, any statement that, at the time and in light of the circumstances under which it is made, is false in any material respect and that the person knows is false in any material respect." 35-A M.R.S.A. § 1507-A.4

The PUC read the Verizon press releases "as denying that it provided customer records or call data associated with its customers in Maine to agencies of the federal government, and that it did not provide such agencies with access to its facilities or infrastructure in Maine such that those agencies would have direct, unfettered access to Verizon's network or the data it carries." PUC Order at 3. The PUC agreed that if the representations were true, they "could satisfy the concerns raised in the complaint." Id. However, the PUC was "unwilling to rely on these representations to dismiss the complaint because they do not bear sufficient indicia of truth as they are not attributed to an individual within Verizon who has decisionmaking authority and knowledge of the matters asserted." Id. The PUC, therefore, ordered Verizon to file on or before August 21, 2006, an "affirmation that each of the seven (7) enumerated representations identified in Section II is both true and not misleading in light of the circumstances in which such affirmation is provided, and that such affirmation be made under oath by an officer of Verizon with decision-making authority and knowledge covering the subject matters asserted therein." Id. at 4. On August 21, 2006, Verizon informed the PUC that because a federal law suit was being initiated addressing the legality of the PUC's Order, it would not supply the affirmation.

C. The United States' Complaint

The United States filed a complaint against Kurt Adams, in his official capacity as Chairman of the PUC, additional PUC members in their official capacities, and Verizon. Compl. ¶¶ 4-8. Citing the Supremacy Clause of the United States Constitution and various federal statutes, the United States alleged that Verizon's compliance with the PUC Order would place it "in a position of having to confirm or deny the existence of information that cannot be confirmed or denied without causing exceptionally grave harm to national security." Id. ¶ 1. In particular, the United States claimed that "if particular telecommunication carriers are indeed supplying foreign intelligence information to the Federal Government, compliance with the Order or other similar order would require disclosure of the details of that activity." Id. The Complaint sought a declaratory judgment that the state Defendants "do not have the authority to seek confidential and sensitive federal government information." Id.

D. The State's Response

The state of Maine answered the Complaint on September 12, 2006, denying its essential allegations and raising a host of affirmative defenses, including lack of jurisdiction, failure to state a claim upon which relief can be granted, ripeness, abstention, justiciability, unclean hands, sovereign immunity, and other issues. State Defs.' Answer and Affirmative Defenses (Docket # 6). With the United States' averments and the state of Maine's denials, the issues were joined.

E. The Judicial Panel on Multidistrict Litigation: In Re National Security Agency Telecommunications Records Litigation

The dispute between the United States and the Maine PUC is not unique to Maine. On August 9, 2006, acting pursuant to 28 U.S.C. § 1407, the Judicial Panel on Multidistrict Litigation (MDL Panel) had transferred seventeen civil actions to the United States District Court for the Northern District of California for coordinated or consolidated pretrial proceedings.5 In re NSA Telecoms. Records Litig., 444 F.Supp.2d 1332 (Jud.Pan. Mult.Lit.2006). The MDL Panel noted that these civil actions shared "factual and legal questions regarding alleged Government surveillance of telecommunications activities" and concluded that "centralization ... is necessary in order to eliminate duplicative discovery, prevent inconsistent pretrial rulings (particularly with respect to matters involving national security), and conserve the resources of the parties, their counsel and the judiciary." Id. at 1334. The MDL Panel recognized that there are "security concerns associated with the production of highly classified information" and a "framework should be created whereby a single transferee court (rather than the multiple courts where MDL1791 actions and potential tagalong actions are now pending) would be charged with the task of reviewing any classified information that might need to be produced in connection with the plaintiffs' claims and the Government's assertion of the state secret defense." Id. at 1335. It concluded that the Northern District of California should be the transferee forum, because it had "already established and utilized a procedure for reviewing classified information that the Government deems necessary to decide its state secret claim." Id.

On October 4, 2006, the MDL Panel issued a Conditional Transfer Order, transferring this case along with several others to the Northern District of California "for the reasons stated in the order of August 9, 2006 . . . ." Conditional Transfer Order (Docket # 12). The PUC...

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2 cases
  • In re National Security Agency Telecommunications Records Litigation.
    • United States
    • U.S. District Court — Northern District of California
    • July 24, 2007
    ...six cases (the "state cases") pursuant to MDL 1791: United States v. Rabner, et al, 07-1324; United States v. Gaw, et al, 07-1242; United States v. Adams, et al, 07-1323; United States v. Palermino, et al, 07-1326; United States v. Volz, et al, 07-1396; and Clayton, et al v. AT&T Communicat......
  • In re Nat. Sec. Agency Telecomm. Records Litig.
    • United States
    • U.S. District Court — Northern District of California
    • June 3, 2009
    ...sets forth certain salient procedural events specific to each case as reflected in documents filed in this court. A The Maine case, United States v. Adams (now Reishus), C 07-1323, began after Maine citizen James Cowrie petitioned the Maine Public Utilities Commission (Me-PUC) to investigat......

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