Case Information
*1 FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT (cid:252)
C AROLYN J ; T ASH H EPTING ; G REGORY H ICKS ; E RIK K NUTZEN ; OICE W ALTON , on behalf of themselves and all others similarly situated,
Plaintiffs-Appellants, v.
N GENCY ; K EITH B. A LEXANDER , Director, in his official and personal capacities; M ICHAEL V. H AYDEN , in his
personal capacity; U NITED
S TATES OF A MERICA ; G EORGE W. (cid:253)
B USH , President of the United States, in his official and personal capacities; R ICHARD B. C HENEY , in his personal capacity; D AVID S.
A DDINGTON , in his personal
capacity; D EPARTMENT OF J USTICE ; A LBERTO R. G ONZALES , in his
personal capacity; J OHN D.
A SHCROFT , in his personal
capacity; J OHN M. M C C ONNELL , Director of National Intelligence, in his official and personal
capacities; J OHN D. N EGROPONTE in his personal capacity; M ICHAEL B.
M UKASEY , Attorney General; (cid:254) B ARACK H USSEIN O BAMA ; A (cid:252) E RIC H. H OLDER J R ., Attorney No. 10-15616 General; D ENNIS C. B LAIR , D.C. Nos. (cid:253) Defendants-Appellees, 3:08-cv-04373- VRW M:06-cv-01791-
(cid:254) VRW (cid:252) V IRGINIA S HUBERT ; N OHA RAFA ; S ARAH D RANOFF ; H ILARY B OTEIN , individually and on behalf of all No. 10-15638 others similarly situated, D.C. Nos. Plaintiffs-Appellants, 3:07-cv-00693- (cid:253) v. VRW M:06-cv-01791- G EORGE W. B USH ; M ICHAEL V. VRW H AYDEN ; K EITH B. A LEXANDER ; A LBERTO R. G ONZALES ; J OHN OPINION A SHCROFT ; U NITED S TATES OF A MERICA , (cid:254) Defendants-Appellees.
Appeal from the United States District Court for the Northern District of California Vaughn R. Walker, District Judge, Presiding Argued and Submitted August 31, 2011—Seattle, Washington Filed December 29, 2011 Before: Harry Pregerson, Michael Daly Hawkins, and M. Margaret McKeown, Circuit Judges. Opinion by Judge McKeown COUNSEL Cindy Cohn, Lee Tien, Kurt Opsahl, Kevin S. Bankston, James S. Tyre, ELECTRONIC FRONTIER FOUNDATION, San Francisco, California, for the plaintiff-appellant; Rachael E. Meny, Paula L. Blizzard, Michael S. Kwun, Audrey Walton-Hadlock, KEKER & VAN NEST LLP, for the plaintiff-appellant [ 10-15616 ].
Matthew D. Brinckerhoff, Ilann Margalit Maazel, Adam R. Pulver, EMERY CELLI BRINCKERHOFF & ABADY LLP, New York, New York, for the plaintiff-appellant. [ 10- 15638 ].
H. Thomas Byron, III, DOJ – U.S. Department of Justice, Washington, District of Columbia, for the defendant-appellee. [ 10-15616 and 10-15638 ].
OPINION
McKEOWN, Circuit Judge:
This case is one of many arising from claims that the fed- eral government, with the assistance of major telecommunica- tions 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 constitu- tional 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 constitu- tional standing requirement of concrete injury. Nor do pru- dential considerations bar this action. Although there has been considerable debate and legislative activity surrounding the surveillance program, the claims do not raise a political ques- 21607 tion nor are they inappropriate for judicial resolution. Finally, we do not impose, as suggested by the government, a height- ened 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.
B ACKGROUND
I. C OMPLAINT
Jewel filed this putative class action “on behalf of [herself]
and a class of similarly situated persons”: “ordinary Ameri-
cans who are current or former subscribers to AT&T’s tele-
phone and/or Internet services.” At this stage, our inquiry
focuses on Jewel and the allegations as they pertain to her.
Stearns v. Ticketmaster Corp.
,
[1] A number of the other multidistrict litigation (“MDL”) suits name one or more of the telecommunications companies as defendants. See, e.g. , Hepting v. AT&T , No. 09-16676 (9th Cir. Dec. 29, 2011). According to the complaint, on October 4, 2001, President Bush and other government defendants issued a secret presi- dential 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 coun- try, including AT&T’s Folsom Street facility in San Fran- cisco, “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[ ] communica- tions 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 com- munications and other communications, both inter- national 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.” 21609
II. T HE D ISTRICT C OURT’S D ECISION The government defendants moved to dismiss and alterna- tively 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 immu- nity. 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. The district court dismissed the claims with prejudice and without leave to amend. [3]
[2] The district court dismissed Jewel’s action together with a similar action filed by Virginia Shubert. Shubert’s action was consolidated with other wiretapping cases in August 2006 in the Northern District of Califor- nia under the MDL provisions of 28 U.S.C. § 1407. Jewel’s case was orig- inally filed in the Northern District of California, but was not part of the MDL consolidation. The procedural histories of the Jewel and Shubert actions are not identical, but the district court considered the cases together for purposes of standing.
[3]
The allegations in the Shubert complaint diverge significantly from
those in the Jewel complaint, primarily because of their lack of specificity.
These deficiencies might well have been ameliorated through an amended
complaint. However, the district court sua sponte dismissed the complaint
on standing grounds, without leave to amend. Although the district court
properly considered standing of its own accord, this dismissal was prob-
lematic “because [plaintiffs] only learned that the district court would not
allow them an opportunity to remedy any perceived defects in the com-
plaint after . . . the district court summarily signed and entered [its order
of dismissal].”
Manzarek v. St. Paul Fire & Marine Ins. Co.
, 519 F.3d
1025, 1034 (9th Cir. 2008). The district court erred in denying Shubert
leave to amend. “Dismissal without leave to amend is improper unless it
is clear, upon
de novo
review, that the complaint could not be saved by
any amendment.”
Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc.
,
The district court carefully reviewed the complicated pro- cedural 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 allega- tions necessary to establish that she was an “aggrieved per- son” 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] com- plaint contains no other allegations specifically linking any of the plaintiffs to the alleged surveillance activities,” and there- fore held that Jewel lacked standing. We disagree.
A NALYSIS
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 allega- tions of the complaint as true and draw all reasonable infer- ences 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 (1990). Because this appeal arises from dismissal under Fed- eral Rule of Civil Procedure 12(b)(6), Jewel’s allegations are accepted as true. [4]
[4]
At the motion to dismiss stage, we do not consider the merits of
Jewel’s claims. For example, the district court’s determination that Jewel
was not an “Aggrieved Person” under the FISA or a qualified plaintiff
under the other statutes is a merits determination, not a threshold standing
question. Statutory “standing, unlike constitutional standing, is not juris-
dictional.”
Noel v. Hall
,
[1] Standing doctrine is well established: “Article III . . . gives the federal courts jurisdiction over only ‘cases and con- troversies.”’ Whitmore v. Arkansas , 495 U.S. 149, 154-55 (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 redressa- bility. 504 U.S. 555, 560-61 (1992). Here, the district court determined that this action was “in essence [a] citizen sui[t] seeking to employ judicial remedies to punish and bring to heel high-level government officials,” and that “neither group of plaintiffs/purported class representatives has alleged an injury that is sufficiently particular to those plaintiffs or to a distinct group.” The district court’s decision was based entirely on the first prong of Lujan . Although that requirement is the focus of our analysis, our de novo review also considers the other two prongs. “[T]he standing question in [this] case is whether the
constitutional or statutory provision on which the claim rests properly can be understood as granting persons in the plain- tiff’s position a right to judicial relief.” Warth v. Seldin , 422 U.S. 490, 500 (1975). The answer here is yes.
whether a plaintiff states a claim for relief typically relates to the merits
of a case, not to the dispute’s justiciability, and conflation of the two con-
cepts often causes confusion.
See Bond v. United States
,
II. J EWEL H AS C ONSTITUTIONAL TANDING TO S UE
A. J LLEGED C ONCRETE AND
P ARTICULARIZED I NJURY
To satisfy the “injury in fact” requirement, Jewel must
assert a grievance that is both “concrete and particularized.”
Lujan
,
[3] As to Jewel’s statutory claims, the Supreme Court instructs that a concrete “injury required by Art. III may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing.” Lujan , 504 U.S. at 578 (internal quotation marks, citation, and alteration omitted). Jewel asserts claims under three surveillance statutes—the ECPA, FISA and SCA—and adds an umbrella claim under the APA. Both the ECPA and the FISA prohibit electronic inter- ception of communications absent compliance with statutory procedures. The SCA likewise prohibits the government from obtaining certain communication records. Each statute explic- itly creates a private right of action for claims of illegal sur- veillance. See 18 U.S.C. § 2520 (the ECPA provides a cause of action to “any person whose . . . communication is inter- cepted, disclosed, or intentionally used”); 50 U.S.C. § 1801(k) (the FISA provides that “[a]n aggrieved person . . . who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such per- son has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation”); 18 U.S.C. § 2707(a) (the SCA provides that “any provider of electronic communication ser- vice, subscriber, or other person aggrieved by any violation of this chapter” may maintain a civil action if the violation was done knowingly or intentionally).
[5] In a similar vein, with respect to her constitutional claim, Jewel alleges a concrete claim of invasion of a personal constitutional right—the First Amendment right of association and the Fourth Amendment right to be free from unreasonable searches and seizures. Just last term, the Supreme Court con- firmed an individual’s right to challenge the legality of Exec- utive Branch conduct on separation-of-powers grounds, Jewel’s third constitutional claim: “[I]ndividuals sustain dis- crete, justiciable injury from actions that transgress separation-of-powers limitations. Separation-of-powers prin- ciples are intended, in part, to protect each branch of govern- ment from incursion by the others. Yet the dynamic between and among the branches is not the only object of the Constitu- tion’s concern. The structural principles secured by the sepa- ration of powers protect the individual as well.” Bond , 131 S. Ct. at 2365.
[6]
Satisfied that Jewel sufficiently alleged concrete injury,
we turn now to the more difficult question, whether the rights
asserted are sufficiently particularized. The breadth of Jewel’s
allegations calls into question whether she has a particularized
grievance or instead one that “is held in common by all mem-
bers of the public,”
Schlesinger v. Reservists Comm. to Stop
the War
, 418 U.S. 208, 220 (1974), and thus necessarily an
abstract interest shared by all citizens. The critical question is
whether she “has alleged such a personal stake in the outcome
of the controversy as to warrant . . . invocation of federal-
court jurisdiction.”
Summers v. Earth Island Inst.
, 555 U.S.
488, 493 (2009) (internal quotation marks omitted).
The Supreme Court observed in
Federal Election Com-
mission v. Akins
that, “[w]hether styled as a constitutional or
prudential limit on standing, the Court has sometimes deter-
mined that where large numbers of Americans suffer alike,
the political process, rather than the judicial process, may pro-
vide the more appropriate remedy for a widely shared griev-
ance.” 524 U.S. 11, 23 (1998). But the fact that a harm is
widely shared does not necessarily render it a generalized
grievance. In
Akins
, the Court gave context to the notion of
a generalized grievance, explaining that petitioners lack stand-
ing “in cases where the harm at issue is not only widely
shared, but is also of an abstract and indefinite nature—for
example, harm to the ‘common concern for obedience of
law.’ ” 524 U.S. at 23 (quoting
L. Singer & Sons v. Union
Pac. R.R. Co.
,
We recently considered the prerequisites for a “sufficiently concrete and specific injury” in Newdow v. Lefevre , an Estab- lishment Clause challenge to the inscription “In God We Trust” on coins and currency. 598 F.3d 638 (9th Cir. 2010), cert. denied 131 S. Ct. 1612 (2011). We held that Newdow met the standing requirement. The fact that his “encounters with the motto are common to all Americans does not defeat his standing, because Newdow has alleged a concrete, particu- larized, and personal injury resulting from his frequent, unwelcome contact with the motto.” Id. at 642. This case illustrates that even though the experience at the root of New- dow’s complaint was shared by virtually every American, this widespread impact was not dispositive of standing because his grievance was nonetheless concrete and particular.
[8]
Following the rationale of
Akins
and
Newdow
, we con-
clude that Jewel alleged a sufficiently concrete and particular-
ized injury. Jewel’s allegations are highly specific and lay out
concrete harms arising from the warrantless searches. Jewel
described these actions as a “dragnet” and alleged that “[t]his
network of Surveillance Configurations”—“the technical
means used to receive the diverted communications”—
“indiscriminately acquired domestic communications as well
as international and foreign communications.” Specifically,
Jewel alleged that “[t]hrough this network of Surveillance
Configurations and/or other means, Defendants have acquired
and continue to acquire the contents of domestic and interna-
tional wire and/or electronic communications sent and/or
received by Plaintiffs and class members.” In addition to cap-
turing internet traffic, “Defendants and AT&T acquire all or
most long-distance domestic and international phone calls to
or from AT&T long distance customers, including both the
content of those calls and dialing, routing, addressing and/or
signaling information pertaining to those calls.”
The complaint also described in detail the particular
electronic communications equipment used (“4ESS switch”
and “WorldNet Internet Room”) at the particular AT&T facil-
ity (Folsom Street, San Francisco) where Jewel’s personal and
private communications were allegedly intercepted in “a
secret room known as the ‘SG3 Secure Room.’ ” Accepting
Jewel’s allegations as true, she has pled more than the mini-
mum “general factual allegations” required to survive dis-
missal.
Bernhardt
,
Significantly, Jewel alleged with particularity that her com- munications were part of the dragnet. The complaint focused on AT&T and was not a scattershot incorporation of all major telecommunications companies or a blanket policy challenge. Jewel’s complaint also honed in on AT&T’s Folsom Street facility, through which all of Jewel’s communications alleg- edly passed and were captured.
Our decision is consistent with the approach in other cir- cuits. The Second Circuit recently determined, after conduct- ing a detailed analysis, that plaintiffs in a similar suit had standing to challenge provisions of the FISA. Amnesty Int’l United States v. Clapper , 638 F.3d 118, 122 (2d Cir. 2011). Amnesty International involved a facial challenge to § 702 of the FISA in which the plaintiffs’ alleged injuries were “fear that the government will intercept their sensitive international communications” and the costs associated with efforts to avoid such anticipated injuries. Id. at 133. Jewel has much stronger allegations of concrete and particularized injury than did the plaintiffs in Amnesty International . Whereas they anticipated or projected future government conduct, Jewel’s complaint alleges past incidents of actual government inter- ception of her electronic communications, a claim we accept as true. [5]
[5] The government’s position in Amnesty International appears to be in tension with its argument here. There, the government “argue[d] that the plaintiffs can obtain standing only by showing either that they have been monitored or that it is ‘effectively certain’ that they will be monitored.” Id. at 135. Shifting its position, the government argues here that Jewel lacks standing even if her communications were in fact captured and mon- itored. The government does not deny Jewel’s allegations but sidesteps the issue, asserting that “plaintiffs offer nothing other than bare speculation for their assertion that any surveillance is ongoing outside of [FISA Court] authorizations.” That approach conflates the ultimate merits question— whether the surveillance exceeded statutory or constitutional authority— with the threshold standing determination.
Jewel’s case stands in contrast to two other cases,
where our sister circuits held that plaintiffs lacked standing.
In
United Presbyterian Church v. Reagan
, the D.C. Circuit
confronted a “generalized challenge” to “the constitutionality
of the entire national intelligence-gathering system,” not the
alleged actual impact of a specific program or protocol on the
plaintiff.
Similarly distinguishable is the Sixth Circuit’s denial of
standing to challenge the entire NSA wiretapping program.
ACLU v. NSA
, 493 F.3d 644, 648 (6th Cir. 2007). Although
the court reversed on standing grounds, it considered a fully-
developed summary judgment record. Arguably that case is of
“no relevance here,” because our case “involve[s] not a
Rule
56
motion for summary judgment but a
Rule 12(b)
motion to
dismiss on the pleadings.”
Nat’l Wildlife Fed.
, 497 U.S. at
889. The ACLU plaintiffs—attorneys and other professionals
whose communications with overseas individuals were alleg-
edly impacted—were unable to “produce any evidence that
any of their own communications have ever been intercept-
ed.”
ACLU
,
B. J EWEL’S A LLEGATIONS M EET THE S ECOND AND T HIRD
P RONGS OF THE T EST FOR C ONSTITUTIONAL S TANDING
[11]
The harms Jewel alleges are “fairly traceable to the
challenged action” of the NSA.
Simon v. E. Ky. Welfare
Rights Org.
,
requirement. There is no real question about redressability. Jewel seeks an injunction and damages, either of which is an available remedy should Jewel prevail on the merits.
C. J ATISFIES THE P RUDENTIAL R EQUIREMENTS F OR S TANDING
The heart of the district court’s opinion and the core of the
government’s argument on appeal focuses on prudential
standing concerns, namely the broad nature of the claims and
the role of the courts in addressing intelligence and surveil-
lance issues. It is true, according to the Court in
Akins
, that
the concern about generalized grievances can be characterized
as both a constitutional and prudential concern, as there is
overlap in the analysis.
[13]
After labeling Jewel’s claim as an effort “to redress
alleged malfeasance by the executive branch,” the district
court stated that “the political process, rather than the judicial
process,” may be the appropriate avenue. There is little doubt
that Jewel challenges conduct that strikes at the heart of a
major public controversy involving national security and sur-
veillance. And we understand the government’s concern that
national security issues require sensitivity. That being said,
although the claims arise from political conduct and in a con-
text that has been highly politicized, they present straightfor-
ward claims of statutory and constitutional rights, not political
questions.
See Japan Whaling Ass’n v. Am. Cetacean Soc.
,
The district court’s suggestion that Congress rather than the courts is the preferred forum ignores two important points: To begin, Congress already addressed the issue and spelled out a private right of action in the FISA, ECPA and SCA. And, in 2008, “[p]artially in response to the[ ] [wiretapping] suits, Congress held hearings and ultimately passed legislation that provided retroactive immunity to the companies . . . but expressly left intact potential claims against the government.” Hepting , slip op. at 21573. Focusing on the federal statutory causes of action, the
prudential analysis is simplified: “prudential standing is satis- fied when the injury asserted by a plaintiff arguably falls within the zone of interests to be protected or regulated by the statute.” Akins , 524 U.S. at 20 (internal citations, quotation marks and alterations omitted). In the surveillance statutes, by granting a judicial avenue of relief, Congress specifically envisioned plaintiffs challenging government surveillance under this statutory constellation. Jewel’s statutory claims undoubtedly allege harms “within the zone of interests to be protected or regulated by the statute[s],” alleviating any pru- dential standing concerns. Id.
[15]
The district court effectively imposed a heightened
standard for consideration of Jewel’s constitutional claims.
See Jewel v. NSA
, 2010 U.S. Dist. LEXIS 5110 at *24-25.
According to the district court, the reluctance to adjudicate
constitutional questions is heightened “when, as here, the con-
stitutional issues at stake in the litigation seek judicial
involvement in the affairs of the executive branch and
national security concerns appear to undergird the challenged
actions.”
Jewel v. NSA
,
district court, the Supreme Court explained that “concrete injury removes from the realm of speculation whether there is a real need to exercise power of judicial review in order to [6] The Incompatability Clause provides that “[n]o Senator or Representa- tive shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States . . . .” U.S. Const. art. I, § 6, cl. 2.
protect the interests of the complaining party.” 418 U.S. at 221. In short, Schlesinger does not stand for the proposition that there is a stronger, more “persuasive” standing for consti- tutional questions in national security cases. It represents, instead, an articulation of the basic requirement of concrete injury and the rule against generalized grievances. Article III imposes no heightened standing requirement for the often dif- ficult cases that involve constitutional claims against the exec- utive involving surveillance. See Amnesty Int’l , 638 F.3d at 149 (“We do not see any reason why the law of standing should be stricter or different in the surveillance context.”). To be sure, prudential concerns may weigh against standing in certain cases affecting national security interests, but the national security context does not, in itself, erect a new or separate prudential bar to standing.
C ONCLUSION
We REVERSE the district court’s dismissal of Jewel’s complaint on the ground that she lacked standing. We REMAND with instructions to consider, among other claims and defenses, whether the government’s assertion that the state secrets privilege bars this litigation. We REVERSE the district court’s dismissal of Shubert’s complaint with preju- dice and without leave to amend and REMAND with instruc- tions to grant Shubert leave to amend her complaint.