Case Information
*2 Before: SMITH, Chief Judge , HARDIMAN, and NYGAARD, Circuit Judges .
(Filed: October 5, 2016) Elliot J. Schuchardt [Argued]
309 Braeburn Drive
Winchester, VA 22601
Counsel for Appellant Andrew G. Crocker, Esq.
Electronic Frontier Foundation
815 Eddy Street
San Francisco, CA 94109
Counsel for Amicus Appellant Benjamin C. Mizer
David J. Hickton
H. Thomas Byron III
Henry C. Whitaker [Argued]
United States Department of Justice Appellate Section, Room 7256
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Counsel for Appellee Honorabel D. Brooks Smith, United States Circuit Judge for the Third Circuit, assumed Chief Judge status on October 1, 2016
____________ OPINION ____________
HARDIMAN, Circuit Judge .
This appeal involves a constitutional challenge to an electronic surveillance program operated by the National Security Agency (NSA) under the authority of Section 702 of the Foreign Intelligence Surveillance Act (FISA). Elliott Schuchardt appeals an order of the United States District Court for the Western District of Pennsylvania dismissing his civil action for lack of jurisdiction. The District Court held that Schuchardt lacked standing to sue because he failed to plead facts from which one might reasonably infer that his own communications had been seized by the federal government. Because we hold that, at least as a facial matter, Schuchardt’s second amended complaint plausibly stated an injury in fact personal to him, we will vacate the District Court’s order and remand.
I Schuchardt’s appeal is the latest in a line of cases raising the question of a plaintiff’s standing to challenge surveillance authorized by Section 702. Congress amended FISA in 2008 to “supplement[] pre-existing FISA authority by creating a new framework under which the Government may . . . target[] the communications of non-U.S. persons located abroad.” Clapper v. Amnesty International USA , 133 S. Ct. 1138, 1144 (2013); see also FISA Amendments Act of 2008, Pub. L. No. 110–261, 122 Stat. 2436, 2438, 50 U.S.C. *4 § 1881a. On the day Section 702 became law, its constitutionality was challenged by “attorneys and human rights, labor, legal, and media organizations whose work allegedly require[d] them to engage in . . . telephone and e- mail communications” with persons located outside the United States. See id. at 1145. The Clapper plaintiffs claimed that Section 702 was facially unconstitutional under the Fourth Amendment, which prohibits unreasonable searches and seizures. See id. at 1146.
A
The dispositive question presented to the Supreme Court in Clapper was whether the plaintiffs had established an “imminent” injury “fairly traceable” to the government’s conduct under Section 702. See 133 S. Ct. at 1147. Because the plaintiffs had brought suit on the day the law was enacted, there was no evidence that their communications had been intercepted—there was only a looming “threat of [future] surveillance.” Id. at 1145–46. Nonetheless, the plaintiffs claimed they had standing because there was an “objectively reasonable likelihood” that their communications would be intercepted based on the nature of their contacts with persons outside of the country. Id at 1146.
The Supreme Court rejected this argument as “inconsistent” with longstanding precedent requiring that “threatened injury must be certainly impending to constitute injury in fact,” Clapper , 133 S. Ct. at 1147 (emphasis in original) (quoting Whitmore v. Arkansas , 495 U.S 149, 158 (1990)). And because the plaintiffs could rely only on a “speculative chain of possibilities” to support their allegations of future harm from unlawful government surveillance, they *5 failed to demonstrate an injury that was “certainly impending.” Id . at 1150.
In particular, the Court characterized the Clapper plaintiffs’ “speculative chain” as entailing five inferential leaps:
(1) the Government will decide to target the communications of non-U.S. persons with whom [the plaintiffs] communicate; (2) in doing so, the Government will choose to invoke its authority under [Section 702] rather than . . . another method of surveillance; (3) the Article III judges who serve on the Foreign Intelligence Surveillance Court will conclude that the Government’s proposed surveillance procedures . . . satisfy [Section 702’s] many safeguards and are consistent with the Fourth Amendment;
(4) the Government will succeed in intercepting the communications of [the plaintiffs’] contacts; and
(5) [the plaintiffs] will be parties to the particular communications that the Government intercepts.
On summary judgment, the plaintiffs had failed to “set forth by affidavit or other evidence specific facts” supporting these inferences. Id. at 1149 (internal quotation marks *6 omitted). Accordingly, they lacked standing to challenge the constitutionality of Section 702. Id.
B
Soon after
Clapper
was decided, former NSA
contractor Edward Snowden leaked a trove of classified
documents to journalists writing for the
Washington Post
and
Guardian
.
[1]
Those documents referenced the existence of an
NSA program engaged in the bulk collection of domestic
telephone metadata,
i.e.
, “details about telephone calls,
including for example, the length of a call, the phone number
from which the call was made, and the phone number called,”
but not the voice content of the call itself.
ACLU v. Clapper
,
785 F.3d 787, 793 (2d Cir. 2015);
see also Smith v. Obama
,
The government’s bulk collection of telephone metadata precipitated a number of lawsuits. In one case, the Second Circuit held that the government had exceeded its statutory authority under Section 215 to obtain “relevant” information by constructing an “all-encompassing” database of “every telephone call made or received in the United States.” ACLU , 785 F.3d at 812–13. Under the statute’s sunset provision, however, authorization for the bulk telephone metadata collection program expired on June 1, 2015. See Pub. L. No. 112–14, 125 Stat. 216 (2011) (authorizing an extension); Smith , 816 F.3d at 1241. And although the program was subsequently reauthorized by the USA FREEDOM Act, Pub. L. No. 114–23, 129 Stat. 268 (2015), that act “prohibits any further bulk collection.” Smith , 816 F.3d at 1241. In reliance on that prohibition, the Ninth Circuit has determined that “claims related to the ongoing collection of metadata [under Section 215] are [now] moot.” Id.
Separate and apart from the bulk collection of telephone metadata under Section 215, the documents leaked to the Washington Post and Guardian also shed light on a previously undisclosed electronic surveillance program operating under Section 702 called PRISM. [2] Slides from a *8 presentation purportedly authored by the NSA described PRISM as “collect[ing] directly from the servers” the full content of user communications exchanged using services provided by several large U.S. companies—including Microsoft, Google, Yahoo, Apple, and Facebook. App. 53. Another slide depicted a timeline showing the inception of PRISM collection from each company, beginning with Microsoft in September 2007 and ending with Apple in October 2012. Yet another slide suggested a slogan for the NSA’s “New Collection Posture”: “Sniff it All, Know it All, Collect it All, Process it All, Exploit it All, and Partner it All.” App. 61.
II
On June 2, 2014, Schuchardt filed a complaint in the District Court asserting constitutional, statutory, and state law claims against the President, the Director of National Intelligence, and the Directors of the NSA and Federal Bureau of Investigation. He alleged that the Government was violating the Fourth Amendment by storing his confidential communications “in a computer database, or through a government program, which the Defendants call ‘Prism.’” Civil Complaint ¶ 22, Schuchardt v. Obama , No. 2-14-cv- 00705-CB (W.D. Pa. June 2, 2014), ECF No. 1. He sought to enjoin “the [Government] from engaging in any further collection of . . . [his] information.” Id. ¶ 37.
Schuchardt responded to the Government’s successive motions to dismiss by amending his complaint twice. In of Apple, Google and Others , Guardian (June 7, 2013), https://perma.cc/RPA9-RXSY
addition to refining and expanding his allegations, Schuchardt
supplemented his averments with exhibits, the contents of
which fall into two general categories. First, he supported his
allegations regarding PRISM with excerpts of the classified
materials that were the focus of the
Washington Post
and
Guardian
reports, as well as several of the reports themselves.
Second, he included affidavits filed in support of the plaintiffs
in
Jewel v. NSA
(
Jewel I
), 965 F. Supp. 2d 1090 (N.D. Cal.
2013), a case challenging the NSA’s interception of internet
traffic flowing through a telecommunications facility in San
Francisco pursuant to an Executive Order issued shortly after
September 11, 2001.
Id.
at 1098.
Jewel I
was decided on
remand from
Jewel v. NSA
, 673 F.3d 902 (9th Cir. 2011), in
which the Ninth Circuit held that the plaintiffs had adequately
pleaded Article III standing to sue.
See
In its motion to dismiss Schuchardt’s second amended complaint, the Government principally took issue with his allegation that the “NSA collects the online communications . . . of all Americans, including, therefore, his.” See Brief in Support of Defendants’ Motion to Dismiss Plaintiff’s Second Amended Complaint at 2, Schuchardt v. Obama , No. 2-14- cv-00705-CB (W.D. Pa. Dec. 11, 2014), ECF No. 21 (emphasis added). Specifically, the Government argued that because Section 702 authorizes the targeted surveillance of only persons outside the United States, it was implausible that PRISM—a program operating under the authority of Section 702—was a dragnet capturing all the country’s domestic online communications. In support of its position, the Government cited a report on PRISM prepared by the Privacy and Civil Liberties Oversight Board (PCLOB), [4] an independent agency tasked with “review[ing] actions the executive branch takes to protect the Nation from terrorism, ensuring that the need for such actions is balanced with the need to protect privacy and civil liberties.” 42 U.S.C. § 2000ee(c)(1). Based on its review, the PCLOB determined *12 that “[i]n PRISM collection, the government . . . sends selectors—such as an email address—to a United States- based electronic communications service provider,” who is then by law “compelled to give the communications sent to or from that selector to the government.” PCLOB Report at 33. Far from being the dragnet that Schuchardt had alleged, therefore, “PRISM collection under Section 702 may be targeted only at non-U.S. persons located abroad who possess or are likely to receive foreign-intelligence information.” Brief in Support of Defendants’ Motion to Dismiss at 10, Schuchardt v. Obama , No. 2-14-cv-00705-CB (W.D. Pa. Aug. 11, 2014), ECF No. 8. Because none of Schuchardt’s allegations suggested that he or his associates would be targeted as such persons, the Government argued that he had failed to include “well-pleaded allegations and non- conclusory allegations of fact” necessary to establish his standing. Brief in Support of Defendants’ Motion to Dismiss Plaintiff’s Second Amended Complaint at 4, Schuchardt v. Obama , No. 2-14-cv-00705-CB (W.D. Pa. Dec. 11, 2014), ECF No. 21.
The District Court granted the Government’s motion to dismiss Schuchardt’s second amended complaint, but took a slightly different tack than what the Government had suggested. After considering four cases examining constitutional standing to sue in cases challenging national security surveillance— Clapper , ACLU , Jewel , and Klayman —the Court deduced a “meaningful distinction” that explained their divergent outcomes. Schuchardt v. Obama , 2015 WL 5732117, at *6 (W.D. Pa. Sept. 30, 2015). “In situations where plaintiffs are able to allege with some degree of particularity that their own communications were specifically targeted—for example by citing a leaked FISC *13 order or relying on a detailed insider account—courts have concluded that the particularity requirement has been satisfied.” Id . “On the other hand, courts have refused to find standing based on naked averments that an individual’s communications must have been seized because the government operates a data collection program and the individual utilized the service of a large telecommunications company.” Id.
Applying the pleading standard it had gleaned from Clapper , ACLU , Jewel , and Klayman , the District Court began by noting that the facts underpinning Schuchardt’s allegations were drawn almost entirely from “media reports and publicly available information.” Id . Accordingly, his lawsuit fell “squarely within the second category” of cases, i.e. , those brought by plaintiffs who lacked Article III standing. Id . Furthermore, Schuchardt “had identified no facts from which the Court reasonably might infer that his own communications have been targeted, seized, or stored.” Id. As such, he was “indistinguishable from every other American subscribing to the services of a major telephone and/or internet service provider.” Id. His “only discernible distinction [was] his heightened personal-interest in the subject,” which was “insufficient to confer standing.” Id. (citing Schlesinger v. Reservists Comm. to Stop the War , 418 U.S. 208, 220 (1974)).
III
The District Court had jurisdiction over Schuchardt’s
claims under 28 U.S.C. § 1331, as well as the inherent power
to ascertain its own jurisdiction.
See Arbaugh v. Y. & H.
Corp.
,
At the outset, we note that there is an important
distinction between “facial” and “factual” attacks on subject
matter jurisdiction raised in a motion under Rule 12(b)(1) of
the Federal Rules of Civil Procedure.
See Mortensen v. First
Fed. Sav. & Loan
, 549 F.2d 884, 891 (3d Cir. 1977). In a
facial attack, we review only “the allegations of the complaint
and documents referenced therein and attached thereto, in the
light most favorable to the plaintiff.”
Gould Elecs. v. United
States
, 220 F.3d 169, 176 (3d Cir. 2000). If, however, the
defendant contests the pleaded jurisdictional facts, “the court
must permit the plaintiff to respond with evidence supporting
jurisdiction.”
Id.
at 177 (citing
Int’l Ass’n of Machinists &
Aerospace Workers v. Nw. Airlines, Inc.
,
It is clear from the record in this case that the District Court viewed the Government’s motion to dismiss as a facial attack on its jurisdiction. The Court’s analysis focused solely on Schuchardt’s second amended complaint; it did not consider any extrinsic facts proffered by the Government, including, for example, the nature of PRISM collection as determined by the PCLOB. See Schuchardt , 2015 WL 5732117, at *5–7. Accordingly, our review of the District *15 Court’s order will accept as true all of Schuchardt’s plausible allegations, and draw all reasonable inferences in his favor. [5]
IV
We begin our analysis with first principles. As a plaintiff seeking to invoke federal jurisdiction, Schuchardt bears the burden of establishing each element of his standing to sue under Article III. See Lujan v. Defenders of Wildlife , 504 U.S. 555, 561 (1992). “[T]he irreducible constitutional minimum of standing contains three elements.” Id . at 560 .
First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely *16 speculative, that the injury will be redressed by a favorable decision.
Id. at 560–61 (internal quotation marks, citations, and alterations omitted).
Because a motion to dismiss raising a facial attack on
subject matter jurisdiction relies solely on the pleadings, “we
apply the same standard of review we use when assessing a
motion to dismiss for failure to state a claim.”
See Finkelman
v. NFL
,
Against this doctrinal backdrop, Schuchardt’s Article III standing turns on two inquiries. First, were his allegations sufficiently “particularized” to demonstrate that he suffered a discrete injury? See Lujan , 504 U.S. at 560. Second, were those facts pleaded with enough detail to render them plausible, “well-pleaded” allegations entitled to a presumption of truth? See Ashcroft v. Iqbal , 556 U.S. 662, 681 (2009); Bell Atl. Corp. v. Twombly , 550 U.S. 544, 554 (2007). We address each inquiry in turn.
A
A “particularized” Article III injury is one that
“affect[s] the plaintiff in a personal and individual way.”
In re
Schering Plough Corp. Intron/Temodar Consumer Class
*17
Action
,
The Supreme Court has identified a subset of cases in
which plaintiffs routinely fail to demonstrate particularized
injury because they present only “generalized grievances,”
i.e.
, injuries that are “undifferentiated and ‘common to all
members of the public.’”
Lujan
,
Nevertheless, “[t]he fact that an injury may be suffered
by a large number of people does not of itself make that
injury a nonjusticiable generalized grievance.”
Spokeo
, 136 S.
Ct. at 1548 n.7. “The victims’ injuries from a mass tort, for
example, are widely shared, to be sure, but each individual
suffers a particularized harm.”
Id.
;
see also Massachusetts v.
EPA
,
We applied these principles in a recent case involving allegations of government surveillance. In Hassan v. City of New York , the plaintiffs claimed that the New York City Police Department (NYPD) had implemented a program “to monitor the lives of Muslims, their businesses, houses of *19 worship, organizations, and schools.” 804 F.3d at 285. The program allegedly entailed “widespread” photo and video surveillance of “organizations and businesses . . . visibly or openly affiliated with Islam,” and the infiltration of “Muslim- affiliated” groups with informants and undercover police officers. Id. at 285–86. The information gathered was compiled into a series of reports “document[ing] . . . American Muslim life in painstaking detail.” Id. (internal quotation marks omitted). The Hassan plaintiffs discovered the program after some of these reports became “widely publicized,” and they asserted that the fallout required them to alter their ordinary day-to-day conduct. See id. at 287–88.
We held that the plaintiffs’ allegations in
Hassan
were
sufficient to demonstrate particularized injury under Article
III. After determining that they had asserted “an invasion of a
legally protected interest”—“[t]he indignity of being singled
out [by the government] for special burdens on the basis of
one’s religious calling”—we observed that the particularized
nature of an injury does not turn on the number of persons
that may claim it.
Id.
at 289. “[T]hat hundreds or thousands
(or even millions) of other persons may have suffered the
same injury does not change the individualized nature of the
asserted rights and interests at stake.”
Id.
at 291 (citing
Akins
,
Like the plaintiffs in Hassan , Schuchardt has alleged a program of government surveillance that, though universal in scope, is unmistakably personal in the purported harm. His second amended complaint describes PRISM as a dragnet that collects “all or substantially all of the e-mail sent by American citizens by means of several large internet service providers.” App. 82. The collected information allegedly encompasses Schuchardt’s personal communications, and includes not only the kind of intensely private details that one could reasonably expect to find in the email accounts of most Americans—“bank account numbers; credit card numbers; passwords for financial data; [and] health records”—but also data influenced by Schuchardt’s personal circumstances, namely “trade secrets” and “communications with clients of Schuchardt’s law firm, which are privileged and confidential under applicable law.” App. 96.
The Government strenuously disputes the plausibility
of Schuchardt’s assertion that PRISM collects “all or
substantially all of the e-mail sent by American citizens,” and
we address that dispute in detail below. But putting aside for
the moment the question of whether Schuchardt’s allegations
concerning PRISM are entitled to a presumption of truth, the
consequences that he identifies as flowing from the
Government’s alleged dragnet are undoubtedly personal to
him insofar as he has a constitutional right to maintain the
privacy of his personal communications, online or otherwise.
See Plumhoff v. Rickard
, 134 S. Ct. 2012, 2022 (2014)
(“Fourth Amendment rights are personal rights . . . which
may not be vicariously asserted.” (quoting
Alderman v.
United States
, 394 U.S. 165, 174 (1969)). That interest is
neither indivisibly abstract nor indefinite,
see Warshak v.
United States
,
B
Having determined that Schuchardt’s allegations stated
a particularized injury under Article III, we now consider
whether those allegations should be credited as true for the
purpose of resolving
the Government’s
jurisdictional
objection. As noted previously, the District Court construed
the Government’s motion to dismiss as a facial attack on its
subject matter jurisdiction. As a result, we must accept
Schuchardt’s allegations as true, with the important caveat
that the presumption of truth attaches only to those allegations
for which there is sufficient “factual matter” to render them
“plausible on [their] face.”
Iqbal
,
1
We have
recognized
that “[t]he plausibility
determination is a ‘context-specific task that requires the
reviewing court to draw on its judicial experience and
common sense.’”
See, e.g.
,
Connelly
, 809 F.3d at 786–87
(quoting
Iqbal
, 556 U.S. at 675). At the same time, we have
cautioned that the plausibility standard does not impose a
heightened pleading requirement, and that Federal Rule of
Civil Procedure 8(a) continues to require only a “showing”
that the pleader is entitled to relief.
See, e.g.
,
Phillips v. Cty.
of Allegheny
, 515 F.3d 224, 233–34 (3d Cir. 2008) (“The
[Supreme] Court emphasized . . . that it was neither
demanding a heightened pleading of specifics nor imposing a
probability requirement.”)). Indeed, although
Twombly
and
Iqbal
emphasized the plaintiff’s burden of pleading sufficient
“factual matter,”
the Supreme Court also expressly
*23
“disavow[ed]” the requirement that a plaintiff plead “specific
facts.”
Boykin v. KeyCorp
,
Implicit in the notion that a plaintiff need not plead
“specific facts” to survive a motion to dismiss is that courts
cannot
inject evidentiary
issues
into
the plausibility
determination.
[7]
See Twombly
, 550 U.S. at 556 (“[A] well-
pleaded complaint may proceed even if it strikes a savvy
judge that actual proof of those facts is improbable.”). This
includes the weighing of facts or the requirement that a
plaintiff plead “specific facts” beyond those necessary to state
a valid claim.
See id.
at 573 n.8 (“[W]hen a complaint
*24
adequately states a claim, it may not be dismissed based on a
district court’s assessment that the plaintiff will fail to find
evidentiary support for his allegations or prove his claim to
the satisfaction of the factfinder.”). The same logic precludes
a court from rejecting pleaded facts based on some blanket
exclusion of evidence.
See Ricciuti v. New York City Transit
Auth.
, 941 F.2d 119, 124 (2d Cir. 1991). “A contrary rule
would confuse the principles applicable to a motion to
dismiss with those governing a motion for summary
judgment.”
Campanella v. Cty. of Monroe
, 853 F. Supp. 2d
364, 378 (W.D.N.Y. 2012);
see also Whitney v. Guys, Inc
.,
Accordingly, although it is unclear whether the District Court applied a heightened pleading standard in this case, to the extent that its opinion suggests that Schuchardt’s reliance on “media reports and other publicly-available information” was impermissible, we disagree. [8] See Schuchardt , 2015 WL *25 5732117, at *6. Indeed, we held that the plaintiffs in Hassan had plausibly pleaded both their standing to sue and claims for relief based on NYPD surveillance reports that the plaintiffs had discovered only after they had been “widely publicized.” See 804 F.3d at 287. Similarly, we take the District Court’s enumeration of the types of evidence giving rise to the plaintiffs’ standing in Jewel and ACLU —“a leaked FISC order or a detailed insider account”—as merely a suggestion of facts that would have strongly supported the plausibility of Schuchardt’s allegations, rather than a requirement that he plead those specific facts. See 2015 WL 6732117, at *6. Such limitations on the scope or source of facts that a plaintiff may plead to reach the threshold of plausibility run counter to the longstanding principles animating pretrial dispositions, as set forth in Twombly and Iqbal , and come close to the weighing of evidence and credibility determinations that are the exclusive province of the factfinder. See Iqbal , 556 U.S. at 681 (“It is the conclusory nature of respondent’s allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth.”); Twombly , 550 U.S. at 556 (“Rule 12(b)(6) does not countenance . . . dismissals based on a judge’s disbelief of a complaint’s factual allegations.” (quoting Neitzke v. Williams , 490 U.S. 319, 327 (1989)); see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986).
The upshot of all this for Schuchardt is that his reliance on news articles and other disclosures concerning PRISM weighs neither in his favor nor against him. Instead, pleading standard more stringent than the “short and plain statement” of the claim under Rule 8).
these public reports (and the leaked classified materials accompanying them) are simply part and parcel of the “factual matter” that must be considered in assessing the plausibility of his allegations. We will therefore examine those reports in conjunction with the rest of Schuchardt’s pleadings to ascertain whether he plausibly alleged a particularized injury under Article III.
2
Based on our review of the pleadings, the plausibility
of Schuchardt’s alleged injury—that the Government has
been “unlawfully intercepting, accessing, monitoring and/or
storing [his] private communications,” App. 95—depends on
the plausibility of his assertion that PRISM functions as an
indiscriminate dragnet which captures “all or substantially all
of the e-mail sent by American citizens.” App. 82. Aside from
this sweeping allegation, Schuchardt has supplied no facts
suggesting how (or why) the Government would have been
interested in his online activity. His burden, therefore, was to
allege enough “factual matter” to make plausible the
Government’s virtual dragnet.
Iqbal
,
Schuchardt pleaded facts drawn from news articles published by the Guardian , as well as the leaked and purportedly classified materials from which those articles were derived. As we noted in Part I.B, supra , these documents state that the NSA, through PRISM, has obtained “direct” access to the technical facilities of several major internet service providers. App. 53, 84. They indicate specific dates for when those providers granted the Government access, App. 60, and that the degree of access those providers granted enables the Government to query their facilities at *27 will for “real-time interception of an individual’s internet activity.” App. 66. They also describe the types of activity that may be accessed, encompassing “both the content and metadata of . . . private e-mail communications” sent by those providers on behalf of their subscribers. App. 59, 96. Finally, they claim that the rate of data “[c]ollection is outpacing [the Government’s] ability to ingest, process and store [the data] to the ‘norms’ to which [it has] become accustomed,” App. 64, and that the NSA’s overriding surveillance goal is to “[c]ollect it [a]ll,” App. 61.
By including these factual averments in his second amended complaint, Schuchardt outlined a coherent and plausible case supporting his PRISM-as-dragnet allegations. First, his alleged facts specify, at least to some degree, the means through which the NSA captures “all or substantially all of the e-mail sent by American citizens,” App. 82, namely, by compelling companies that provide email and other internet services to cooperate with the NSA in the collection of their customers’ data. Although the technical details of how each company’s email service integrates within PRISM’s infrastructure are not specified, “on a motion to dismiss, we ‘presum[e] that general allegations embrace those specific facts that are necessary to support the claim.’” Lujan , 504 U.S. at 561 (quoting Lujan v. Nat’l Wildlife Fed’n , 497 U.S. 781, 889 (1990)). Moreover, according to the NSA itself, PRISM entails data “collection directly from the servers” of these companies, and Schuchardt describes events involving Lavabit, a company that resisted the Government’s demands to “install a device on its server which would have provided the [Government] with access to the full content of all e-mail messages for all of Lavabit’s . . . customers.” See App. 53, 84, 87. Thus, the pleaded facts plausibly allege the technical *28 means through which PRISM purportedly achieves a nationwide email dragnet. [9]
Second, Schuchardt’s allegations are replete with details confirming PRISM’s operational scope and capabilities. The exhibits attached to his second amended complaint include a slide from a purported NSA presentation identifying company names and the dates they began cooperating with the agency. Another slide confirms that— consistent with a dragnet capturing “all or substantially all of the e-mail sent by American citizens”—the scale of the data collected by PRISM is so vast that the Government reported difficulty processing it according “to the ‘norms’ to which [it has] become accustomed.” App. 64; see also App. 52 *29 (characterizing PRISM as the “SIGAD Used Most in NSA Reporting”); [10] App. 61 (indicating the NSA’s “New Collection Posture” of “Collect[ing] it All”).
Finally, the pleaded facts support Schuchardt’s
allegation that the scope of PRISM’s data collection
encompasses his personal email. The NSA presentation
identifies specific companies participating in the PRISM
program, and indicates that NSA analysts receive the content
of emails collected as part of the program. Schuchardt alleged
that he uses email services provided by two of those
companies—Google and Yahoo—so we need not speculate
about whether Schuchardt’s own communications were
captured because he specified the scope of PRISM’s dragnet
with enough “factual matter” to make additional inferential
leaps unnecessary.
See Klayman
,
3
The Government raises three principal arguments challenging the plausibility of Schuchardt’s PRISM *30 allegations. First, it argues that Clapper and its application by the D.C. Circuit in Klayman require us to find his allegations implausible. We disagree.
Two aspects of Clapper distinguish it from this case. First, because the Clapper plaintiffs raised a facial constitutional challenge to Section 702 on the day the statute was enacted, they pleaded only prospective injury, i.e. , “potential future surveillance.” See 133 S. Ct. at 1150. And because that “potential” relied on a “speculative chain of possibilities,” the Supreme Court concluded that they had failed to satisfy the imminence and traceability elements of injury-in-fact under Article III . Here, in contrast, Schuchardt’s alleged injury has already occurred insofar as he claims the NSA seized his emails. It is therefore not surprising that the Government has been unable to formulate an analogous “speculative chain” that would doom Schuchardt’s constitutional standing.
Another critical distinction between this case and
Clapper
is that the district court entered summary judgment, a
procedural posture that required the plaintiffs to identify a
triable issue of material fact supported by an evidentiary
record.
See id.
at 1146, 1149. In contrast, Schuchardt sought
to avoid dismissal in a facial jurisdictional challenge raised
under Rule 12(b)(1), which requires him only to state a
plausible claim, a significantly lighter burden. This distinction
in the standard of review is also reflected in cases concerning
national security surveillance from our sister courts.
Compare ACLU
,
The Government’s reliance on
Klayman
is also
misplaced. There, the D.C. Circuit vacated the district court’s
preliminary injunction, holding that the plaintiffs had failed to
demonstrate a substantial likelihood of success on the merits.
See
Second, the Government contends that Schuchardt’s allegations “say at most that the government may have the capability to seize and store most electronic *32 communications,” but “[t]hey do not say that the government is searching or seizing most, let alone all, e-mail.” Gov’t Br. 21. We agree that Schuchardt’s alleged facts—even if proven—do not conclusively establish that PRISM operates as a dragnet on the scale he has alleged. The language of the leaked materials Schuchardt relies on is imprecise. The use of the term “direct” in the NSA’s presentation could mean, for example, that the Government has complete discretion to search all electronic information held by a company participating in PRISM at will; this would certainly be consistent with the “real-time” interception capability that the NSA allegedly possesses, and could qualify as an unconstitutional “seizure” of all information stored on the company’s servers. On the other hand, “direct” could mean that the Government merely has the legal authority to compel participating companies to turn over “communications that may be of foreign-intelligence value because they are . . . associated with the e-mail addresses that are used by suspected foreign terrorists.” Gov’t Br. 22. In that scenario, it is implausible that Schuchardt’s communications would be targeted by PRISM.
At this early stage of litigation, however, Schuchardt is entitled to any inference in his favor that may be “reasonably” drawn from his pleaded facts. See, e.g. , King Drug Co. of Florence, Inc. v. SmithKline Beecham Corp. , 791 F.3d 388, 398 n.11 (3d Cir. 2015) (citing Iqbal , 556 U.S. at 678–79). And as we have explained, the inference that PRISM “collects all or substantially all of the e-mail sent by American citizens,” App. 82, is one supported by his pleaded “factual matter.” Accordingly, in this procedural posture, we cannot accept the Government’s preferred inference.
Finally, the Government disputes the notion that PRISM is a dragnet, i.e. , that it is “based on the indiscriminate collection of information in bulk.” See Gov’t Br. 22 (quoting PCLOB Report at 111). According to the Government, “the program consists entirely of targeting specific persons that may be of foreign-intelligence value because they are, for example, associated with the e-mail addresses that are used by suspected foreign terrorists.” Id . Under this view, to intercept communications using PRISM:
Analysts first identify a non-U.S. person located outside the United States who is likely to communicate certain types of foreign intelligence information, such as an individual who belongs to a foreign terrorist organization or facilitates its activities. Analysts also attempt to identify a means by which this foreign target communicates, such as an e-mail address, or a telephone number; any such address, number, or other identifier is known as a “selector.” PRISM collection occurs when the government obtains from telecommunications providers . . . communications sent to or from specified selectors.
Gov’t Br. 6–7 (internal citations omitted).
Several commentators [11] and the few courts [12] that have examined PRISM appear to agree with the Government’s *34 assistance in the acquisition of communications.” (quoting PCLOB Report at 7)); Nathan Alexander Sales, Domesticating Programmatic Surveillance: Some Thoughts on the NSA Controversy , 10 I/S: J. L. & Pol’y for Info. Soc’y 523, 526 (2014) (“[In] PRISM . . . the NSA targets specific non-Americans who are reasonably believed to be located outside the country, and also engages in bulk collection of some foreign-to-foreign communications that happen to be passing through telecommunications infrastructure in the United States.”). The Washington Post also amended its initial report on PRISM to suggest that “imprecision on the part of the NSA” in the wording of its presentation left open the possibility that PRISM collection still required the agency to request materials from the participating companies, rather than directly from the companies’ servers. See Jonathan Hall, Washington Post Updates, Hedges on Initial PRISM Report , Forbes (June 7, 2013, 9:08 PM), https://perma.cc/7L6A- H22D.
[12]
See, e.g.
,
United States v. Hasbajrami
, 2016 WL
1029500, at *6 (E.D.N.Y. Mar. 8, 2016) (“In PRISM
collection, the government identifies the user accounts it
wants to monitor and sends a ‘selector’—a specific
communications facility, such as a target’s email address or
telephone number—to the relevant communications service
provider. A government directive
then compels
the
communications service provider to give it communications
sent to or from that selector (
i.e.
, the government ‘tasks’ the
selector).” (internal citations omitted));
Wikimedia Found. v.
NSA
,
The problem for the Government at this stage is that
the scope of materials that a court may consider in evaluating
a facial jurisdictional challenge raised in a motion under Rule
12(b)(1) is not unconstrained. As with motions under Rule
12(b)(6), the court is limited to the four corners of the
complaint, “document[s]
integral to or explicitly relied
upon
in the complaint,” and “any undisputedly authentic document
that a defendant attaches . . . if the plaintiff’s claims are based
on the document.”
In re Asbestos Prods. Liability Litig. (No.
VI)
, 822 F.3d 125, 133 & n.7 (3d Cir. 2016) (quoting
In re
Burlington Coat Factory Sec. Litig.
,
averments. Instead, disagreements concerning jurisdictional facts should be presented in a factual challenge, at which time the court, after allowing the plaintiff “to respond with evidence supporting jurisdiction,” may fully adjudicate the parties’ dispute, including the resolution of any questions of fact. Id. at 177.
V
Our decision today is narrow: we hold only that Schuchardt’s second amended complaint pleaded his standing to sue for a violation of his Fourth Amendment right to be free from unreasonable searches and seizures. This does not mean that he has standing to sue, as the Government remains free upon remand to make a factual jurisdictional challenge to Schuchardt’s pleading. In anticipation of such a challenge, we provide the following guidance to the District Court on remand.
Schuchardt has suggested that he is entitled to
jurisdictional discovery.
See
Transcript of Oral Argument at
40–41,
Schuchardt v. Obama
, No. 15-3491 (3d Cir. May 17,
2016). We leave that question to the District Court’s
discretion with the caveat that “jurisdictional discovery is not
available merely because the plaintiff requests it.”
Lincoln
Benefit Life Ins. Co. v. AEI Life, LLC
,
Finally, nothing in our opinion should be construed to
preclude the Government from raising any applicable
privileges barring discovery—including the state secrets
doctrine—or to suggest how the District Court should rule on
any privilege the Government may choose to assert.
See
United States v. Reynolds
,
* * *
For the stated reasons, we will vacate the District Court’s order dismissing Schuchardt’s second amended complaint and remand for proceedings consistent with this opinion.
Notes
[1] See, e.g. , Ellen Nakashima, Verizon Providing All Call Records to U.S. Under Court Order , Wash. Post (June 6, 2013), https://perma.cc/LZK7-37CJ; see also Glenn Greenwald, NSA Collecting Phone Records of Millions of Verizon Customers Daily , Guardian (June 6, 2013), https://perma.cc/UR2A-492H.
[2] See, e.g. , Barton Gellman & Laura Poitras, U.S. British Intelligence Mining Data from Nine U.S. Internet Companies in Broad Secret Program , Wash. Post (June 7, 2013), https://perma.cc/YJU2-U9TZ; Glenn Greenwald & Ewan MacAskill, NSA Prism Program Taps in to User Data
[3] Schuchardt’s second amended complaint also asserted: a Fourth Amendment claim challenging the bulk collection of telephone metadata under Section 215, App. 99 (Count II); a Pennsylvania state-law claim, App. 100 (Count III), and a First Amendment claim, App. 101 (Count IV), challenging both PRISM and the telephone metadata
[4] Privacy & Civil Liberties Oversight Board, Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act (July 2, 2014), available at https://www.pclob.gov/library/702-Report.pdf [hereinafter PCLOB Report].
[5] Schuchardt has also challenged on appeal the District Court’s order denying his request for a preliminary injunction, a decision the Court rendered more than six months before granting the Government’s motion to dismiss. Because Schuchardt failed to identify that unrelated order in his notice of appeal, however, we lack jurisdiction to consider his arguments. See Sulima v. Tobyhanna Army Depot , 602 F.3d 177, 184 (3d Cir. 2010).
[6] We have instructed courts to follow a three-step process to determine the sufficiency of a complaint in accordance with Twombly and Iqbal . “First, [the court] must take note of the elements the plaintiff must plead to state a claim. Second, it should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, when there are well-pleaded factual allegations, the court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Connelly , 809 F.3d at 787 & n.4 (internal citations, quotations marks, and original modifications omitted).
[7] The “evidentiary issues” to which we refer are distinct from the question of what documents may be considered in resolving a motion to dismiss applying the standard of review under Rule 12(b)(6), or, as relevant here, addressing a facial challenge to subject matter jurisdiction under Rule 12(b)(1). The general rule for determining the scope of the pleadings in this scenario is that a district court “may consider only the allegations contained in the pleading[s] to determine [their] sufficiency,” but is permitted to consider “document[s] integral to or explicitly relied upon in the complaint,” and “any undisputedly authentic document that a defendant attaches . . . if the plaintiff’s claims are based on the document,” without converting the motion into one for summary judgment. See In re Asbestos Prods. Liability Litig. (No. VI) , 822 F.3d 125, 133 & n.7 (3d Cir. 2016) (internal citations and quotation marks omitted). See generally 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 n.1 (3d ed. 2016).
[8] Despite Clapper ’s observation that the standing inquiry is “especially rigorous” in matters touching on “intelligence gathering and foreign affairs,” 133 S. Ct. at 1147, to our knowledge no court has imposed a heightened pleading standard for cases implicating national security. See Jewel , 673 F.3d at 913 (“Article III imposes no heightened standing requirement for the often difficult cases that involve constitutional claims against the executive involving surveillance.”). In this appeal, we will assume without deciding that a heightened pleading standard does not apply. See, e.g. , Jones v. Bock , 549 U.S. 199, 212–13 (2007) (explaining that “courts should generally not depart from the usual practice under the Federal Rules on the basis of perceived policy concerns,” including the imposition of a
[9] We do not read the Ninth Circuit’s opinion in Jewel to suggest a different conclusion. To be sure, the plaintiff in Jewel was able to allege “with particularity” that her communications were seized by “focus[ing]” her complaint on interceptions occurring at a specific technical facility operated by a single telecommunications provider. See 673 F.3d at 910 (discussing the plaintiff’s allegations concerning AT&T’s “SG3 Secure Room” and “particular electronic communications equipment” at the company’s “Folsom Street” facility in San Francisco). Although the details she alleged were quite colorful, they differ in degree, not in kind from Schuchardt’s averments. In both cases, the parties relied on an insider account of the alleged surveillance program at issue—Schuchardt on a former NSA contractor, and Jewel on a former AT&T telecommunications technician. Those insiders in turn have relied either on documentary evidence allegedly produced by the Government itself, or their personal experiences in executing the surveillance program.
[10] SIGAD stands for the term “Signals Intelligence Activity Designator,” which “is an alphanumeric designator that identifies a facility used for collecting Signals Intelligence (SIGINT).” Laura K. Donohue, Section 702 and the Collection of International Telephone and Internet Content , 38 Harv. J. L. & Pub. Pol’y 117, 119 n.3 (2015).
[11] See, e.g. , Donohue, supra note 8, at 119 n.2 (“Once foreign intelligence acquisition has been authorized under Section 702, the government sends written directives to electronic communication service providers compelling their
[13] For example, the linchpin of Schuchardt’s standing is his allegation that PRISM collects “all or substantially all of the e-mail sent by American citizens.” The District Court may wish to consider what discovery is necessary for it to adjudicate the veracity of that allegation while permitting Schuchardt an adequate evidentiary response. See also Jewel v. NSA , 2015 WL 545925, at *4 (N.D. Cal. Feb. 10, 2015) (holding that plaintiffs had failed to establish their standing to challenge Upstream, another putative NSA electronic surveillance program, because “the evidence at summary judgment [was] insufficient to establish that the Upstream collection process operates in the manner in which Plaintiffs allege[d] it does”).