Jewel v. National Security Agency
965 F. Supp. 2d 1090
N.D. Cal.2013Background
- This amended order addressesJewel and Shubert Plaintiffs’ cross-motions related to alleged NSA dragnet surveillance post-9/11.
- Plaintiffs seek to enjoin surveillance, obtain damages, and obtain statutory and constitutional relief on behalf of themselves and others similarly situated.
- Defendants include NSA, DNI, DOJ, the United States, and executive officers in official capacities; related Shubert Plaintiffs add parallel FISA, Wiretap Act, and SCA claims.
- Court previously considered state secrets defense and held FISA’s §1806(f) preempts the state secrets privilege for purposes of review.
- Court finds Defendants timely invoked state secrets but that FISA §1806(f) preempts the privilege and provides an in camera mechanism for national-security materials.
- Court dismisses Plaintiffs’ statutory claims for damages under FISA and for injunctive relief under SCA/Wiretap Act due to sovereign immunity; reserves non-statutory claims for summary judgment and orders further briefing on constitutional claims and standing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does FISA §1806(f) displace the state secrets privilege? | Jewel argues state secrets are displaced by FISA procedure. | Defendants contend state secrets privilege remains applicable. | FISA §1806(f) preempts the state secrets privilege. |
| Does FISA preemption apply to the state secrets inquiry here? | Preemption should allow proceedings without secret-evidence constraints. | State secrets remain applicable absent preemption. | FISA preempts the state secrets privilege in this context. |
| Are plaintiffs’ statutory damages claims under FISA, the Wiretap Act, and the SCA barred by sovereign immunity? | §2712 waives sovereign immunity for damages under these statutes. | §1810 (FISA) does not waive damages; §2712 limits waiver to specific FISA provisions; broad waiver for SCA/Wiretap Act damages. | Damages claims under FISA are barred; SCA/Wiretap Act damages claims may proceed to extent waived by §2712; the court dismisses those statutory claims for damages against the United States. |
| Is injunctive relief under the SCA/Wiretap Act permissible given sovereign immunity and the Patriot Act amendment? | APA §702 and ultra vires exceptions may allow injunctive relief against the United States. | Section 223 of the Patriot Act limits injunctive relief; ultra vires doctrine is inapplicable or narrow. | Injunctive claims under SCA/Wiretap Act are barred by sovereign immunity; APA §702 does not waive immunity; ultra vires doctrine does not support injunctive relief here. |
| Should the non-statutory constitutional claims proceed pending briefing on FISA's scope and standing? | Constitutional claims should be adjudicated if not precluded by FISA preemption. | FISA preemption or standing concerns may foreclose non-statutory claims. | Ruling reserved on remaining non-statutory claims; further briefing ordered on standing and scope of FISA preemption. |
Key Cases Cited
- United States v. Reynolds, 345 U.S. 1 (1953) (state secrets privilege requires balancing national security and justice)
- Jeppesen Dataplan, Inc. v. United States, 614 F.3d 1080 (9th Cir. 2010) (three-step state secrets analysis and in camera review)
- In re National Security Agency Telecommunications Records Litig., 564 F. Supp. 2d 1109 (N.D. Cal. 2008) (FISA preempts state secrets in electronic surveillance cases)
- Al-Haramain Islamic Foundation v. Bush, 507 F.3d 1190 (9th Cir. 2007) (state secrets not always central when policy disclosures alter secret status)
- Clapper v. Amnesty International USA, 133 S. Ct. 1138 (2013) (standing and risk of future harm in surveillance contexts)