In re: NATIONAL SECURITY AGENCY TELECOMMUNICATIONS RECORDS LITIGATION
No. 09-16676, No. 09-16677, No. 09-16679, No. 09-16682, No. 09-16683, No. 09-16684, No. 09-16685, No. 09-16686, No. 09-16687, No. 09-16688, No. 09-16690, No. 09-16691, No. 09-16692, No. 09-16693, No. 09-16694, No. 09-16696, No. 09-16697, No. 09-16698, No. 09-16700, No. 09-16701, No. 09-16702, No. 09-16704, No. 09-16706, No. 09-16707, No. 09-16708, No. 09-16709, No. 09-16710, No. 09-16712, No. 09-16713, No. 09-16717, No. 09-16719, No. 09-16720
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
FOR PUBLICATION
TASH HEPTING; GREGORY HICKS; ERIK KNUTZEN; CAROLYN JEWEL, on behalf of themselves and all other similarly situated, Plaintiffs-Appellants, v. AT&T CORPORATION; AT&T, INC., Defendants-Appellees, UNITED STATES OF AMERICA, Defendant-intervenor-Appellee.
No. 09-16676
D.C. Nos. 3:06-cv-00672-VRW M:06-cv-01791-VRW
SEAN BASINSKI, on behalf of himself and all others similarly situated; ALL PLAINTIFFS, Plaintiffs-Appellants, v. VERIZON COMMUNICATIONS, INC.; VERIZON, Defendants-Appellees, UNITED STATES OF AMERICA, Defendant-intervenor-Appellee.
No. 09-16677
D.C. Nos. 3:06-cv-06434-VRW M-06-cv-01791-VRW
No. 09-16679
D.C. Nos. 3:06-cv-06295-VRW M:06-cv-01791-VRW
CHARLES F. BISSITT; SANDRA BISSITT; GEORGE HAYEK, III; JUNE MATRUMALO; GERARD THIBEAULT; ARTHUR BOUCHARD; MARYANN BOUCHARD; ALDO CAPARCO; JANICE CAPARCO; JENNA CAPARCO; ROSE DELUCA; NICOLE MIRABELLA; PATRICIA POTHIER; PAUL POTHIER; MARSHALL VOTTA; VINCENT MATRUMALO; PAULA MATRUMALO; JENNIFER THOMAS; CHRISTINE DOUQUETTE; MARYANN KLACZYNSKI; ALL PLAINTIFFS, Plaintiffs-Appellants, v. VERIZON COMMUNICATIONS, INC.; VERIZON, Defendants-Appellees.
No. 09-16682
D.C. Nos. 3:06-cv-05066-VRW M:06-cv-01791-VRW
No. 09-16683
D.C. Nos. 3:06-cv-06313-VRW M:06-cv-01791-VRW
No. 09-16684
D.C. Nos. 3:06-cv-03596-VRW M:06-cv-01791-VRW
No. 09-16685
D.C. Nos. 3:06-cv-03574-VRW M:06-cv-01791-VRW
No. 09-16686
D.C. Nos. 3:06-cv-06570-VRW M:06-cv-01791-VRW
CHARMAINE CROCKETT; A. JORIS WATLAND; ANAKALIA KALUNA; KIM COCO IWAMOTO; WILLIAM R. MASSEY, individually and on behalf of all others similarly situated; ALL PLAINTIFFS, Plaintiffs-Appellants, v. VERIZON WIRELESS, (VAW) LLC; HAWAIIAN TELECOM, INC., DBA Verizon Hawaii; NEXTEL WEST CORP., DBA Sprint; CINGULAR WIRELESS LLC; VERIZON, Defendants-Appellees, UNITED STATES OF AMERICA, Defendant-intervenor-Appellee.
No. 09-16687
D.C. Nos. 3:06-cv-06254-VRW M:06-cv-01791-VRW
No. 09-16688
D.C. Nos. 3:06-cv-06222-VRW M:06-cv-01791-VRW
No. 09-16690
D.C. Nos. 3:06-cv-06387-VRW M:06-cv-01791-VRW
No. 09-16691
D.C. Nos. 3:06-cv-06224-VRW M:06-cv-01791-VRW
No. 09-16692
D.C. Nos. 3:06-cv-05065-VRW M:06-cv-01791-VRW
PAMELA A. MAHONEY, on behalf of herself and all others similarly situated; ALL PLAINTIFFS, Plaintiffs-Appellants, v. VERIZON COMMUNICATIONS, INC.; VERIZON, Defendants-Appellees, UNITED STATES OF AMERICA, Defendant-intervenor-Appellee.
No. 09-16693
D.C. Nos. 3:06-cv-05064-VRW M:06-cv-01791-VRW
No. 09-16694
D.C. Nos. 3:06-cv-06388-VRW M:06-cv-01791-VRW
RHEA FULLER, on behalf of herself and all others similarly situated; ALL PLAINTIFFS, Plaintiffs-Appellants, v. VERIZON COMMUNICATIONS, INC.; VERIZON WIRELESS, LLC; VERIZON, Defendants-Appellees, UNITED STATES OF AMERICA, Defendant-intervenor-Appellee.
No. 09-16696
D.C. Nos. 3:06-cv-05267-VRW M:06-cv-01791-VRW
No. 09-16697
D.C. Nos. 3:06-cv-05067-VRW M:06-cv-01791-VRW
STEVE DOLBERG, on behalf of himself and all others similarly situated; ALL PLAINTIFFS, Plaintiffs-Appellants, v. AT&T, INC.; AT&T CORP., Defendants-Appellees, UNITED STATES OF AMERICA, Defendant-intervenor-Appellee.
No. 09-16698
D.C. Nos. 3:06-cv-05269-VRW M:06-cv-01791-VRW
THERESA FORTNASH; ALL PLAINTIFFS, Plaintiffs-Appellants, v. AT&T CORP., Defendant-Appellee, UNITED STATES OF AMERICA, Defendant-intervenor-Appellee.
No. 09-16700
D.C. Nos. 3:06-cv-06385-VRW M:06-cv-01791-VRW
No. 09-16701
D.C. Nos. 3:06-cv-06924-VRW M:06-cv-01791-VRW
JAMES C. HARRINGTON; RICHARD A. GRIGG; LOUIS BLACK; THE AUSTIN CHRONICLE; MICHAEL KENTOR, on behalf of themselves and all others similarly situated; ALL PLAINTIFFS, Plaintiffs-Appellants, v. AT&T, INC.; AT&T CORP.; AT&T OPERATIONS INC.; NEW CINGULAR WIRELESS SERVICES, INC., Defendants-Appellees.
No. 09-16702
D.C. Nos. 3:06-cv-05452-VRW M:06-cv-01791-VRW
No. 09-16704
D.C. No. 3:06-cv-05343-VRW
DARRYL HINES; ALEX KLABACKA; JANA KLABACJA; ALL PLAINTIFFS, Plaintiffs-Appellants, v. VERIZON NORTHWEST, INC., an active Washington corporation; VERIZON COMMUNICATIONS, INC., an active Delaware corporation; VERIZON, Defendants-Appellees, UNITED STATES OF AMERICA, Defendant-intervenor-Appellee.
No. 09-16706
D.C. Nos. 3:06-cv-05341-VRW M:06-cv-01791-VRW
No. 09-16707
D.C. Nos. 3:07-cv-02538-VRW M:06-cv-01791-VRW
No. 09-16708
D.C. Nos. 3:06-cv-07934-VRW M:06-cv-01791-VRW
RICHARD ROCHE; ALL PLAINTIFFS, Plaintiffs-Appellants, v. AT&T CORP., Defendant-Appellee, UNITED STATES OF AMERICA, Defendant-intervenor-Appellee.
No. 09-16709
D.C. Nos. 3:07-cv-01243-VRW M:06-cv-01791-VRW
No. 09-16710
D.C. Nos. 3:06-cv-03467-VRW M:06-cv-01791-VRW
ELAINE SPIELFOGEL-LANDIS, on behalf of herself and all others similarly situated; ALL PLAINTIFFS, Plaintiffs-Appellants, v. MCI, LLC, a Delaware limited liability company; VERIZON, Defendants-Appellees, UNITED STATES OF AMERICA, Defendant-intervenor-Appellee.
No. 09-16712
D.C. Nos. 3:06-cv-04221-VRW M:06-cv-01791-VRW
No. 09-16713
D.C. Nos. 3:06-cv-05340-VRW M:06-cv-01791-VRW
HERBERT WAXMAN, on behalf of himself and all others similarly situated; ALL PLAINTIFFS, Plaintiffs-Appellants, v. AT&T CORP., Defendant-Appellee, UNITED STATES OF AMERICA, Defendant-intervenor-Appellee.
No. 09-16717
D.C. Nos. 3:06-cv-06294-VRW M:06-cv-01791-VRW
No. 09-16719
D.C. Nos. 3:07-cv-00464-VRW M:06-cv-01791-VRW
No. 09-16720
D.C. Nos. 3:07-cv-02029-VRW M:06-cv-01791-VRW
McKEOWN, Circuit Judge:
These consolidated appeals arise from claims that major telecommunications carriers assisted the government with intelligence gathering following the terrorist attacks on September 11, 2001. News reports that the National Security Agency (“NSA“) undertook a warrantless eavesdropping program with alleged cooperation by telecommunications companies spawned dozens of lawsuits by customers against the companies, along with multiple suits against the NSA and other government actors. Tash Hepting and other residential telephone customers (collectively “Hepting“) challenge the legality of the companies’ participation in the surveillance program. Partially in response to these suits, Congress held hearings and ultimately passed legislation that provided retroactive immunity to the companies, subject to various conditions, but expressly left intact potential claims against the government. The sole issue before us is the constitutionality of § 802 of the Foreign Intelligence Surveillance Act (“FISA“),
BACKGROUND
I. The Lawsuits
This appeal includes thirty-three actions against the nation‘s telecommunications companies, originally filed in 2006. The complaints were filed in the wake of news reports in December 2005 that President Bush had issued an order permitting the NSA to conduct warrantless eavesdropping. Under a program known as the Terrorist Surveillance Program (“TSP“), the NSA “had obtained the cooperation of tele-
II. The 2008 Amendments to the FISA
While the underlying actions were pending in district court, and partially in response to these suits, Congress enacted the FISA Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2435, codified at
Subsection 802(a) reads as follows:
(a) Requirement for certification. Notwithstanding any other provision of law, a civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be promptly dismissed, if the Attorney General certifies to the district court of the United States in which such action is pending that—
(1) any assistance by that person was provided pursuant to an order of the court established under section 103(a) [
50 U.S.C. § 1803(a) ] directing such assistance;(2) any assistance by that person was provided pursuant to a certification in writing under
section 2511(2)(a)(ii)(B) or2709(b) of title 18, United States Code ;(3) any assistance by that person was provided pursuant to a directive under section 102(a)(4) [
50 U.S.C. § 1802(a)(4) ], 105B(e) [50 U.S.C. § 1805b(e) ], as added by section 2 of the Protect America Act of 2007 (Public Law 110-55), or 702(h) [50 U.S.C. § 1881a(h) ] directing such assistance;
(4) in the case of a covered civil action, the assistance alleged to have been provided by the electronic communication service provider was— (A) in connection with an intelligence activity involving communications that was—
(i) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007; and
(ii) designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack, against the United States; and
(B) the subject of a written request or directive, or a series of written requests or directives, from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider indicating that the activity was—
(i) authorized by the President; and
(ii) determined to be lawful; or
(5) the person did not provide the alleged assistance.
Section 802(a) permits the Attorney General to certify to a court that assistance was provided under at least one of a series of situations—ranging from a Foreign Intelligence Surveillance Court order, a national security letter, an Attorney General directive regarding FISA-authorized warrantless surveillance to participation in the TSP—or that no assistance was provided. This certification is subject to judicial review under a substantial evidence standard: “[a] certification under subsection (a) shall be given effect unless the court finds that
Section 802(c) details the court‘s handling of classified information. If the Attorney General declares that public disclosure of the certification and related materials “would harm the national security of the United States,” then the court must review the material ex parte and in camera. The court may not reveal the specific subsection under which the certification was made nor may the court reveal any such material. Instead, the court must simply state whether the case is dismissed and a description of the legal standards governing the order.
Finally, § 802(d) provides that
[a]ny plaintiff or defendant in a civil action may submit any relevant court order, certification, written request, or directive to the district court referred to in subsection (a) for review and shall be permitted to participate in the briefing or argument of any legal issue in a judicial proceeding conducted pursuant to this section, but only to the extent that such participation does not require the disclosure of classified information to such party.
All classified materials must be reviewed in camera and ex parte and any part of the court‘s order reviewing such information must be under seal.
The Senate Select Committee on Intelligence issued a report on the amendments, discussing, among other provisions, § 203, which was later codified as the FISA § 802. See S. Rep. 110-209 (2007). The report contains a lengthy background section describing “Pending Litigation” and “Civil Suits Against Electronic Communication Service Providers,” leaving little doubt that these cases were among the intended targets of the amendments.
III. The Attorney General‘s Certification under § 802
Shortly after § 802(a) became law, Attorney General Michael Mukasey submitted to the district court both a public and a classified certification under the statute. In his public declaration, Attorney General Mukasey “confirm[ed] the existence of the TSP” but “denied the existence of the alleged dragnet.” He “certif[ied] that the claims asserted in the civil actions pending in these consolidated proceedings brought against electronic communication service providers fall within at least one provision contained in Section 802(a) of the FISA.” He further explained that disclosure of the classified certification “would cause exceptional harm to the national security of the United States” and “must therefore be reviewed in camera, ex parte by the Court” pursuant to § 802(c)(2). Mukasey concluded that “the provider-defendants are entitled to statutory protection based on at least one of the provisions contained in Section 802(a)(1) to (5) of
IV. The District Court Decision
With the filing of the Attorney General‘s certification, the United States intervened and moved to dismiss all of the claims against the telecommunications companies. The district court granted the motion and dismissed the complaints. Al-Haramain Islamic Found., Inc. v. Bush (In re NSA Telcomms. Records Litig.), 633 F. Supp. 2d 949, 955 (N.D. Cal. 2009).
In a thoughtful and lengthy opinion, the district court characterized § 802 as “sui generis among immunity laws.” Id. at 959. The district court considered Hepting‘s multiple claims “that constitutional defects make the statute unenforceable.” Id. at 959-60. In the end, the district court rejected each of these claims.
Hepting also made “a series of arguments to the effect that, on the merits and putting alleged infirmities in section 802 aside, the Attorney General‘s certifications are inadequate under section 802‘s own terms to support dismissal of these actions.” Id. at 975. In support of these claims, Hepting pointed to specific evidence offered with respect to the surveillance. Unpersuaded, the district court wrote as follows:
While plaintiffs have made a valiant effort to challenge the sufficiency of certifications they are barred by statute from reviewing, their contentions under section 802 are not sufficiently substantial to persuade the court that the intent of Congress in enacting the statute should be frustrated in this proceeding in which the court is required to apply the statute. The court has examined the Attorney General‘s submissions and has determined that he has met his burden under section 802(a).
ANALYSIS
On appeal, Hepting challenges only the facial constitutionality of § 802, not its application. He does not appeal the district court‘s determination that the substance of the Attorney General‘s certifications (both classified and unclassified) was supported by substantial evidence and that the Attorney General met his statutory burden. As a consequence, our legal analysis is not dependent on the details contained within the certifications.1
Three of Hepting‘s arguments focus on separation of powers: (1) bicameralism and presentment; (2) nondelegation; and (3) congressional interference with litigation. The fourth claim, which draws upon separation of powers and due process, is that the statute effectively forecloses litigation of the claims. Finally, Hepting characterizes his claims as a property interest and seeks relief under the Due Process Clause of the Fifth Amendment for deprivation of an opportunity to be heard before an unbiased adjudicator and of his right to meaningful notice in light of the statutory secrecy provisions.
I. Separation-of-Powers Challenges
A. Bicameralism and Presentment
[1] We first consider whether, in view of the requirements of bicameralism and presentment found in Article I, § 7 of the Constitution, § 802 effectively amends or negates existing law without going through the constitutionally-mandated legislative process. Relying primarily on Clinton v. City of New York, 524 U.S. 417 (1998), in which the Supreme Court
In Clinton, the Supreme Court characterized the Line Item Veto Act as giving “the President the power to ‘cancel in whole’ ” tax and spending provisions that had been passed by both houses of Congress and signed into law. Id. at 436 (citation omitted). The line item veto prevented the cancelled items “from having legal force or effect,” though the remaining provisions “continue[d] to have the same force and effect as they had when signed into law.” Id. at 437-38. The Court concluded “that cancellations pursuant to the Line Item Veto Act are the functional equivalent of partial repeals of Acts of Congress that fail to satisfy Article I, § 7.” Id. at 444.
[2] Hepting argues that § 802 is similar to the Line Item Veto Act because the Executive may partially repeal or preempt the law governing electronic surveillance on a case-by-case basis by certifying to one of the five circumstances set forth in § 802(a). This argument glosses over a crucial distinction between § 802 and the Line Item Veto Act: Under § 802 the Executive does not change or repeal legislatively enacted law, as was the case with the Line Item Veto. The law remains as it was when Congress approved it and the President signed it. In other words, nothing effected by the Attorney General “prevent[s] the item from having legal force or effect.” Clinton, 524 U.S. at 437 (internal quotation marks omitted). Unlike the line item veto, the Attorney General‘s certification implements the law as written and does not frustrate or change the law as enacted by Congress.
B. The Nondelegation Doctrine
[4] The nondelegation doctrine is central to the notion of separation of powers. See Mistretta v. United States, 488 U.S. 361, 371 (1989) (“The nondelegation doctrine is rooted in the principle of separation of powers that underlies our tripartite
[5] Article I, § 1 of the Constitution provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.” In practice, of course, Congress delegates authority frequently. The relevant question is how, when, and under what circumstances Congress may delegate its authority. The Supreme Court‘s answer: “[W]hen Congress confers decisionmaking authority upon agencies Congress must lay down by legislative act an intelligible principle to which the person or body authorized to act is directed to conform.” Whitman v. Am. Trucking Ass‘ns, 531 U.S. 457, 472 (2001) (emphasis and internal quotation marks omitted). “Only if [a court] could say that there is an absence of standards for the guidance of the Administrator‘s action, so that it would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed, would [it] be justified in overriding its choice of means for effecting its declared purpose . . . .” Yakus v. United States, 321 U.S. 414, 426 (1944).
In applying the intelligible principle test to congressional delegations, the Supreme Court “has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.” Mistretta, 488 U.S. at 372. The Court summed up its nondelegation jurisprudence as follows: “[I]n the history of the Court we have found the requisite ‘intelligible principle’ lacking in only two statutes, one of which provided literally no guidance for the exercise of discretion, and the other of which conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring ‘fair competition.‘” Whitman, 531 U.S. at 474 (citing Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); Poultry Corp. v. United States” cite=“295 U.S. 495” court=“U.S.” date=“1935“>A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935)). The text, structure, history, and context of § 802 together demonstrate the existence of an intelligible principle.
Hepting argues that § 802 contravenes the nondelegation doctrine because Congress imposed no standard or intelligible principle governing the Attorney General‘s certification authority. The text of § 802 sets out five statutory categories—ranging from the specific TSP program to the fact that no assistance was provided—that delineate and circumscribe the Attorney General‘s certification discretion. Hepting faults the legislation because it lacks guidance on whether the Attorney General should exercise his discretion. In our view, the Attorney General‘s discretion whether to invoke a specific subsection does not eviscerate the “intelligible principle” standard.
A review of standards upheld by the Court underscores the concrete and intelligible nature of the text of § 802. For example, the Court has countenanced as intelligible seemingly vague principles in statutory text such as whether something would “unduly or unnecessarily complicate,” or be “generally fair and equitable,” in the “public interest,” or “requisite to protect the public health.” Whitman, 531 U.S. at 474-76; Am. Power & Light Co. v. SEC, 329 U.S. 90, 104 (1946); Yakus, 321 U.S. at 420; Nat‘l Broadcasting Co. v. United States, 319 U.S. 190, 225-26 (1943). Statutes authorizing the recovery of “excessive profits,” and allowing action when “necessary to avoid an imminent hazard to public safety” also passed the test. Touby v. United States, 500 U.S. 160, 166 (1991); Lichter v. United States, 334 U.S. 742, 778-79 (1948). The Supreme Court has “almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.” Whitman, 531 U.S. at 474-75 (quoting Mistretta, 488 U.S. at 416 (Scalia, J., dissenting)). Indeed, the “hazard to public safety” provision in Lichter is comparable to, if not less specific than, the “designed to detect or prevent a terrorist attack” language in § 802(a)(4). Never has the Court invali-
Section 802‘s structure resembles that of similar statutes that have been found valid. When considering the state-sponsored terrorism exception to the FISA, the D.C. Circuit explained that “Congress delineated the area of immunity and the exception to the immunity, delegating to the Executive only the authority to make a factual finding upon which the legislatively enacted statute and the judicially exercised jurisdiction would partially turn.” Owens, 531 F.3d at 889. The same is true regarding § 802. Congress created liability under the FISA, as well as the immunity exception for private companies, under certain circumstances. And Congress delegated to the Executive the authority to trigger this immunity. See infra Part III.A.
The legislative history also confirms our textual analysis of the statute. In the context of nondelegation, the Supreme Court has emphasized the role of legislative history, even absent ambiguity in the statute. See Mistretta, 488 U.S. at 376 n.10 (“[L]egislative history, together with Congress’ directive that the Commission begin by ascertaining the average sentence imposed in each category in the past, and Congress’ explicit requirement that the Commission consult with authorities in the field of criminal sentencing provide a factual background and statutory context that give content to the mandate of the Commission.” (citing Am. Power & Light Co. v. SEC, 329 U.S. 90, 104-05 (1946))).
Following Mistretta, the D.C. Circuit also noted that when the court reviews statutes under the nondelegation doctrine, the court “do[es] not confine [itself] to the isolated phrase in question, but utilize[s] all the tools of statutory construction, including the statutory context and, when appropriate, the factual background of the statute to determine whether the statute provides the bounded discretion that the Constitution
The Senate Select Committee Report goes far in explaining the congressional concerns that motivated the passage of the immunity provision. When considering how to respond to lawsuits like this one, the Committee “recogniz[ed] the importance of the private sector in assisting law enforcement and intelligence officials in critical criminal justice and national security activities.” S. Rep. 110-209 at 5. The Report further states that “electronic surveillance for law enforcement and intelligence purposes depends in great part on the cooperation of the private companies that operate the Nation‘s telecommunication system.” Id. at 9. The intelligible principle that comes through in the legislative history is one of protecting intelligence gathering and national security information.
The fact that § 802 arises within the realm of national security—a concern traditionally designated to the Executive as part of his Commander-in-Chief power—further suggests that the intelligible principle standard need not be overly rigid. See
[6] Section 802 authorizes the Attorney General to act only in narrow, definable situations, subject to review by the courts. In sum, the text, structure, history, and context of § 802 contain an intelligible principle consistent with the Constitution‘s nondelegation doctrine.
Hepting asserts that
Hepting invokes Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995). But he does well not to dwell on this case because the Supreme Court in Plaut struck down a very different statute—one that “require[d] federal courts to reopen final judgments in private civil actions.” Id. at 213. When compared to Plaut, where Congress “attempted to set aside the final judgment of an Article III court by retroactive legislation,” 514 U.S. at 230, Hepting‘s separation of powers claim as to
[7] On the other hand, there is a long line of cases upholding deferential standards of review for administrative factual determinations in other statutory schemes. See, e.g., Dickinson v. Zurko, 527 U.S. 150, 152-61 (1999) (rejecting clearly erroneous standard and reaffirming substantial evidence standard of review for agency findings); Universal Camera Corp. v. NLRB, 340 U.S. 474, 490 (1951) (stating that substantial evidence review is sufficient to fulfill the conventional judicial function); Bonnichsen v. United States, 367 F.3d 864, 879-80 (9th Cir. 2004) (“We review the full agency record to determine whether substantial evidence supports the agency‘s decision.“); Retlaw Broad. Co. v. NLRB, 53 F.3d 1002, 1006 (9th Cir. 1995) (“Credibility determinations by the ALJ are
[8] Deferential review does not mean that courts abdicate their judicial role. Section 802 does not represent a legislative incursion into the independent decisionmaking and reviewing authority of the courts. Given the judiciary‘s long history and experience with reviewing cases for substantial evidence, review under
II. Separation of Powers and Due Process Challenges to Claims Limitation
[9] Hepting claims
The Senate Report confirms this reading. “Only civil lawsuits against electronic communication service providers alleged to have assisted the Government are covered under this provision. The Committee does not intend for this section to apply to, or in any way affect, pending or future suits against the Government as to the legality of the President‘s
[10] To be sure, a “serious constitutional question . . . would arise if a federal statute were construed to deny any judicial forum for a colorable claim.” Webster v. Doe, 486 U.S. 592, 603 (1988) (emphasis added). Separation of powers concerns would be raised because “the appellant would have no forum at all for the pursuit of her claims” and the court “would thus be faced with a situation in which Congress has enacted legislation and simultaneously declared that legislation to be immune from any constitutional challenge by the plaintiff.” Bartlett v. Bowen, 816 F.2d 695, 703 (D.C. Cir. 1987). Such is not the situation here. The federal courts remain a forum to consider the constitutionality of the wiretapping scheme and other claims, including claims for injunctive relief. The judiciary‘s essential role in protecting constitutional rights is not undermined simply because Hepting is unable to bring twin claims against the telecommunications companies and the government.
III. Section 802 Does Not Violate Due Process
Hepting‘s final argument—that
Hepting‘s due process argument is twofold. He argues first that the Attorney General‘s certification is an adjudication that denies claimants a de novo review before an unbiased adjudicator. He then claims that the procedures under
A. The Attorney General Was Not an Adjudicator
[11] Hepting‘s initial complaint is that the Attorney General acts as a biased adjudicator when certifying immunity. But Hepting‘s focus on the role of the Attorney General misapprehends the certification process. The Attorney General certifies either that assistance was provided in narrowly defined circumstances or that no assistance was offered. In this capacity, the Attorney General does not function as an adjudicator. See Owens, 531 F. 3d at 891-92 (citing cases and describing executive decision making in the context of foreign affairs as “factfinding“). Mere certification, which is the foundation of immunity under
The fact that the Attorney General may have supported the
[12] Hepting ignores that the Attorney General has a legitimate policy role. It is well established that “[a]dministrators . . . may hold policy views on questions of law prior to participating in a proceeding.” Ass‘n of Nat‘l Advertisers, Inc. v. FTC, 627 F.2d 1151, 1174 (D.C. Cir. 1979) (quoted in United States v. Payne, 944 F.2d 1458, 1476-77 (9th Cir. 1991)); see also FTC v. Cement Inst., 333 U.S. 683, 702 (1948) (rejecting a due process claim where agency head previously expressed a view on the issue); Fidelity Television, Inc. v. FCC, 515 F.2d 684, 694 (D.C. Cir. 1975) (rejecting bias argument based on prior Commission decisions and Chairman‘s testimony before Congress). Public officials are presumed not to be biased; expressing an opinion, even a strong one, on legislation, does not disqualify an official from later responding to a congressional mandate incorporating that opinion. Withrow v. Larkin, 421 U.S. 35, 47 (1975). The ultimate legislative judgment regarding immunity for the telecommunications companies was made by Congress, not the Attorney General, and falls to the courts, not the Attorney General, to review.
B. Section 802 Provides Sufficient Notice and Process
The question we next address is whether the judicial review procedures under
In targeting
[13] The FISA amendments essentially left untouched the basic framework of statutes that already provide broad protection of the secrecy of court orders and certifications that rest on national security materials. These statutes range from certification provisions under the Wiretap Act,
[b]ecause the Government has claimed the state secrets privilege over the question of whether any particular provider furnished assistance to the Government, [and thus] an electronic communication service provider who cooperated with the Government pursuant to a valid court order or certification cannot prove it is entitled to immunity under section
2511(2)(a)(ii) without disclosing the information deemed privileged by the Executive branch.
S. Rep. 110-209 at 11. In other words, the amendment was adopted to effectuate a pre-existing immunity for telecommunications companies.
[14] Hepting‘s challenge is simply to the extra layer of secrecy provided by
Next, the practical effects of
The fourth subsection,
Finally, certification under
Section 802‘s limited effect on Hepting‘s ability to challenge the grounds for certification stands in marked contrast to the statute considered in Hamdi v. Rumsfeld, 542 U.S. 507 (2004). Hepting cites Hamdi to urge that the secrecy provisions in
[15] Finally, the national security considerations present here successfully outweigh the limited effects of
Courts have consistently upheld in camera and ex parte reviews when national security information is concerned. In National Council of Resistance of Iran v. Dep‘t of State, the D.C. Circuit explained that the notice “need not disclose the classified information to be presented in camera and ex parte to the court under the statute. This is within the privilege and the prerogative of the Executive, and we do not intend to compel a breach in the security which that branch is charged to protect.” 251 F.3d 192 (D.C. Cir. 2001). The court conducted a detailed analysis of the interests at stake under the
Hepting‘s claim mirrors the one made—and rejected—in People‘s Mojahedin Organization of Iran v. Department of State: that a statute violates the Due Process Clause because it “permits the Secretary to rely upon secret evidence—the classified information that respondent refused to disclose and against which [the petitioner] could therefore not effectively defend.” 327 F.3d 1238, 1241-42 (D.C. Cir. 2003) (rejecting a due process challenge to a designation as a terrorist organization). Similarly, in Holy Land Foundation for Relief & Development v. Ashcroft, the court held that the petitioner‘s designation as a “Specially Designated Global Terrorist” using classified information reviewed by the court in camera and ex parte did not violate due process for lack of meaningful notice. 333 F.3d 156, 164 (D.C. Cir. 2003); see also Global Relief Found., Inc. v. O‘Neill, 315 F.3d 748, 754 (7th Cir. 2002) (“Administration of the IEEPA is not rendered unconstitutional because that statute authorizes the use of classified evidence that may be considered ex parte by the district court.” (citing
To counter this line of cases Hepting relies on American-Arab Anti-Discrimination Committee v. Reno (”AADC“), in which we held that the use of undisclosed classified information in adjustment-of-immigration-status proceedings violated due process. 70 F.3d 1045, 1070 (9th Cir. 1995). The circumstances in AADC could hardly diverge more. Most significantly there was “no statutory or regulatory basis supporting” in camera process, id. at 1068; under
The government‘s invocation of national security concerns does not guarantee it a free pass. When enacting
The procedure in [§ 802] allows a court to review a certification . . . even when public disclosure of such facts would harm the national security. Because an assertion of state secrets over the same facts would likely prevent all judicial review . . . this provision serves to expand judicial review to an area that may have been previously non-justiciable. In addition, the statute explicitly allows the court to review . . . the Attorney General‘s certification.
S. Rep. 110-209 at 12. The certification is reviewed for “substantial evidence.”
[16] Accordingly, we conclude that the procedures afforded under
IV. Issues Specific to Joll, Anderson, Herron, and Lebow
[17] Four appellants, Joll, Anderson, Herron, and Lebow, filed complaints alleging conduct that began as far back as February 2, 2001, predating the TSP program. In its dismissal of their actions, the district court stated that because “section 802‘s immunity provision may only be invoked with regard to suits arising from actions authorized by the president between September 11, 2001 and January 7, 2007, the dismissal is without prejudice.” Al-Haramain, 633 F. Supp. 2d at 976. Unlike the district court, we conclude that
[18] In addition to claims against the private telecommunications companies, the complaints filed by Anderson and Lebow also included alleged illegal conduct on the part of the government. Because
CONCLUSION
Although Hepting offers a broadside against the constitutionality of
Each party shall bear its own costs on appeal.