Case: Jewel v. National Security Agency

3:08-cv-04373 | U.S. District Court for the Northern District of California

Filed Date: Sept. 18, 2008

Case Ongoing

Clearinghouse coding complete

Case Summary

On September 18, 2008, AT&T customers filed this class action in the U.S. District Court for the Northern District of California against the United States. The plaintiffs, represented by the Electronic Frontier Foundation and private counsel, claimed that the federal government's electronic surveillance program violated the Fourth Amendment, First Amendment, separation of powers, the Foreign Intelligence Surveillance Act (FISA), the Wiretap Act, the Electronic Communications Privacy Act or the …

On September 18, 2008, AT&T customers filed this class action in the U.S. District Court for the Northern District of California against the United States. The plaintiffs, represented by the Electronic Frontier Foundation and private counsel, claimed that the federal government's electronic surveillance program violated the Fourth Amendment, First Amendment, separation of powers, the Foreign Intelligence Surveillance Act (FISA), the Wiretap Act, the Electronic Communications Privacy Act or the Stored Communications Act, and the Administrative Procedure Act.

Specifically, the plaintiffs alleged the National Security Agency ("NSA") implemented a massive, indiscriminate, illegal dragnet of the phone calls and emails of tens of millions of ordinary Americans since the September 11 terrorist attacks. The core component of the defendants' surveillance program was a nationwide network of sophisticated communication surveillance devices attached to the key facilities of various telecommunication companies that carried Americans' Internet and telephone communications.

On October 28, 2008, Judge Walker marked this case as formally related to Hepting v. AT&T (NS-CA-0004, in this Clearinghouse). The Multi District Litigation (MDL) Panel then consolidated the case as part of a multi-district litigation consolidation, In Re National Security Agency Telecommunications Records Litigation (NS-CA-11, in this Clearinghouse). For information about what happened while this case was a part of that multi-district consolidated matter, see NS-CA-0004.

After dismissals of almost all of the cases in the MDL, this case was one of only two cases remaining. The other case was Shubert v. Obama, see NS-CA-0006, in this Clearinghouse. But in January 21, 2010, Judge Walker dismissed both this case and Shubert v. Obama, because the plaintiffs failed to establish their standing to bring suit—that is, they failed to establish that they were personally affected by the alleged violation of law. Jewel v. NSA, 2010 WL 235075 (N.D. Cal. Jan. 21, 2010). The plaintiffs appealed.

On December 29, 2011, the Ninth Circuit vacated Judge Walker's dismissal decision. Writing for the Ninth Circuit, Judge McKeown held that the plaintiffs did have standing, and remanded "with instructions to consider, among other claims and defenses, whether the government's assertion that the state secrets privilege bars this litigation." Jewel v. NSA, 673 F.3d 902 (9th Cir. 2011).

In 2012, Judge Walker retired; the matter was reassigned to District Judge Jeffrey S. White on May 18, 2012. Upon remand, the plaintiffs filed a motion for partial summary judgment requesting that the district court dismiss the defendants' state secret defense. The U.S. cross-moved to dismiss on the basis of sovereign immunity for the statutory claims and for summary judgment on the assertion of the state secrets privilege.

On July 23, 2013, Judge White granted plaintiffs' motion for partial summary judgment, rejecting the government's state secrets defense. However, Judge White also granted the government's motion to dismiss the plaintiffs' claims for damages under FISA and all statutory claims for injunctive relief on the basis of sovereign immunity. Judge White reserved ruling on the government's motions for summary judgment on remaining non-statutory claims (counts 1-4 of the Jewel Complaint and the fourth cause of action in the Shubert Complaint). Jewel v. NSA, 965 F. Supp. 2d 1090 (N.D. Cal. 2013).

On July 24, 2013, Judge White granted a motion to relate this case with First Unitarian Church of Los Angeles v. NSA (NS-CA-0003 in this Clearinghouse).

Under the "minimization" rules applicable to the Section 215 metadata program, the NSA had been required to destroy all metadata within five years of collection. See, e.g., In re Application of the FBI for an Order Requiring the Production of Tangible Things From [Redacted], BR 14-01, NS-DC-0051. In this case, the plaintiffs argued that this data destruction would interfere with their ability to establish the facts needed for their lawsuit. Accordingly, on their request, Judge White entered a temporary restraining order on March 10, 2014, requiring the preservation of relevant evidence pending the parties' further briefing and the Court's final determination of the preservation issues. In its restraining order, the Court required that the government refrain from "destroying any potential evidence relevant to the claims at issue in this action, including but not limited to prohibiting the destruction of any telephone metadata or 'call detail' records, pending further order of the Court." This order applied to this case; Shubert v. Obama; and First Unitarian Church of Los Angeles v. NSA.

This temporary restraining order directly conflicted with the standing Foreign Intelligence Surveillance Court order in In re Application of the FBI for an Order Requiring the Production of Tangible Things From [Redacted], BR 14-01 (NS-DC-0051 in this Clearinghouse). To eliminate the conflict, the FISC responded to Judge White's order by granting temporary relief from the five-year destruction requirement but required that telephony metadata being preserved beyond the five-year limitation not be used by the NSA for any purpose.

In the summer of 2014, the plaintiffs moved for partial summary judgment on their Fourth Amendment claim, and the defendants responded by also moving for partial summary judgment on the Fourth Amendment claim.

On February 10, 2015, Judge White denied the plaintiffs' motion for partial summary judgment and granted the defendants' motion for partial summary judgment. Judge White held that the plaintiffs failed to establish a sufficient factual basis to find that they had standing to sue under the Fourth Amendment regarding the possible interception of their Internet communications. Further, even if the plaintiffs could establish standing, they argued that the claim must be dismissed because any possible defenses would require impermissible disclosure of state secret information. Jewel v. NSA, 2015 WL 545925 (N.D. Cal. Feb. 10, 2015). On May 20, 2015, the Court held that its adjudication of this claim was a final determination and no just reason existed for delay in entering final judgment on this claim. The court entered partial judgment and dismissed the claim that the government defendants violated the Fourth Amendment rights of the plaintiffs by copying and searching the contents of the plaintiff’s internet communications.

On June 4, 2015, the plaintiffs appealed to the United States Court of Appeals for the Ninth Circuit. On December 18, 2015, the Ninth Circuit dismissed the appeal for lack of jurisdiction because the appeal did not meet the requirements of Fed. R. Civ. P. 54(b) certification, and remanded to the district court for further proceedings. The panel concluded that that the certification was not warranted because the question of whether the copying and searching of plaintiff’s Internet communications violated the Fourth Amendment, was intertwined with several other issues that remained pending in district court, and the interlocutory appeal would only have prolonged final resolution of the case. Each party was to bear its own costs on appeal. Jewel v. NSA, 810 F.3d 622.

On February 19, 2016, Judge White found that in the absence of sovereign immunity, the plaintiffs could state claims under the Wiretap Act and the Stored Communications Act. The District Court thus granted plaintiffs’ motion to lift the stay of discovery on Counts 9, 12, and 15, and that any disputed materials that defendants contended that would potentially run the risk of impermissible disclosure of state secret information could be disclosed ex parte for in camera review. On December 16, 2016, the parties filed a joint discovery letter outlining their respective positions on disputed discovery issues.

On April 26, 2017, the FISC issued an order approving changes to the Section 702 Upstream program, including revised minimization procedures which required the NSA to destroy, as quickly as practicable, all raw Upstream Internet communications data acquired on or before March 17, 2017, that existed in all of NSA’s institutionally managed repositories.

At the May 19, 2017 case management conference, Judge White ordered the government defendants to marshal all of their evidence relating to plaintiffs’ standing and to present that evidence to the court, making as much of it public as possible. The defendants’ production of materials was completed on April 1, 2018. On May 7, 2018, plaintiffs filed a motion to obtain access to the classified materials, which was opposed by the government defendants, and subsequently denied by the court on June 13, 2018.

On August 17, 2018, Judge White ordered the parties to file dispositive motions to resolve the threshold legal issues raised by the remaining statutory claims in this matter. On August 24, 2018, the parties submitted a joint discovery letter, and the plaintiffs argued that the court should order the government defendants to respond separately and individually to each request for admission.

On September 7, 2018, the government defendants filed a motion for summary judgment. They argued because of the state secrets privilege and of the statutory privileges established by 50 U.S.C. § 3024(i)(1) and 50 U.S.C. § 3605(a), plaintiffs lacked admissible evidence to establish their standing to maintain their statutory claims. Consequently, the Court lacked subject-matter jurisdiction to consider them. Moreover, they argued that dismissal was required because the case could not be litigated on the merits without creating an unjustifiable risk of divulging state secrets. On September 28, 2018, the plaintiffs responded, arguing that (1) the government defendant could not meet its summary judgment burden; (2) the public evidence demonstrated plaintiffs’ standing; (3) the undisclosed classified evidence also demonstrated plaintiffs’ standing; (4) section 2712(b)(4) required the use of classified evidence to decide standing; and (5) this lawsuit may not be dismissed on state secrets grounds.

After the plaintiffs and defendants exchanged responses and replies on the above-mentioned points of contention for several months, the court held oral arguments for the summary judgement motions. On April 25, 2019, the court entered a judgement denying the plaintiffs' summary judgement cross-motion and ordered summary judgement for the defendants. The court found that the plaintiffs could not produce admissible evidence to show that the plaintiffs were harmed through surveillance. This was due to a lack of admissible evidence that the customers in question were among those affected by the defendants. Additionally, the classified information the court viewed could not be shared as it would constitute a grave danger to national security. The court found that it could not issue a judgement on whether or not there was redressability for the injury suffered by the plaintiffs without also endangering national security.

The plaintiffs appealed to the Ninth Circuit on April 25, 2019. Their appeal included the February 10, 2015 order granting defendants’ motion for partial summary judgment, the June 13, 2018 order denying plaintiffs’ motion for access to classified discovery materials, the August 28, 2018 order regarding parties’ joint discovery letter brief, the April 25, 2019 order granting defendants’ motion for summary judgment and denying plaintiffs’ cross-motion to proceed to the merits, and the court’s April 25, 2019 Classified Order.

On November 2, 2020 a panel of the Ninth Circuit consisting of Circuit Judges Ronald Gould, Margaret McKeown, and Carlos Bea heard argument from the parties. After oral argument, on December 24, 2020, the government filed a letter with the court notifying it that the government had sought certiorari from the Supreme Court in Fazaga v. Federal Bureau of Investigation, another case about the intersection of FISA and the state secrets privilege (NS-CA-0030 in this Clearinghouse). The court ordered the plaintiffs to file a response addressing the question of whether this case ought to be held until the Fazaga case was resolved because of the similar issues they presented on January 27, 2021. On February 4, 2021, the plaintiffs responded, and since then there has been no action in this case.

This appeal is ongoing as of February 2021.

Summary Authors

Michael Mirdamadi (11/19/2013)

Jessica Kincaid (2/17/2015)

Dawn Lui (12/2/2018)

Carter Powers Beggs (10/24/2019)

Dan Toubman (2/23/2020)

Jonah Hudson-Erdman (2/21/2021)

Related Cases

Center for Constitutional Rights v. Obama, Northern District of California (2006)

Hepting v. AT&T, Northern District of California (2006)

Shubert v. Obama, Northern District of California (2006)

In re National Security Agency Telecommunications Records Litigation, Northern District of California (2006)

First Unitarian Church of Los Angeles v. National Security Agency, Northern District of California (2013)

In re Application of the FBI for an Order Requiring the Production of Tangible Things From [Redacted], BR 14-01, Foreign Intelligence Surveillance Court (2014)

People


Judge(s)

McKeown, M. Margaret (California)

Walker, Vaughn R. (California)

White, Jeffrey Steven (California)

Attorneys(s) for Plaintiff

Antaramian, Aram Vazken (California)

Bankston, Kevin Stuart (District of Columbia)

Berkowitz, Benjamin (California)

Blizzard, Paula Lenore (California)

Cohn, Cindy A. (California)

Crocker, Andrew (California)

Greene, David Allen (California)

Judge(s)

McKeown, M. Margaret (California)

Walker, Vaughn R. (California)

White, Jeffrey Steven (California)

Attorneys(s) for Plaintiff

Antaramian, Aram Vazken (California)

Bankston, Kevin Stuart (District of Columbia)

Berkowitz, Benjamin (California)

Blizzard, Paula Lenore (California)

Cohn, Cindy A. (California)

Crocker, Andrew (California)

Greene, David Allen (California)

Kwun, Michael S. (California)

Maazel, Ilann M. (New York)

Mackey, Aaron David (California)

Meny, Rachael Elizabeth (California)

Moore, Thomas Edward III (California)

Opsahl, Kurt Bradford (California)

Rumold, Mark Thomas (California)

Sessions, Justina Kahn (California)

Tassin, Phillip James (California)

Tien, Lee (California)

Tyre, James Samuel (California)

Walton−Hadlock, Audrey Helena (California)

Wiebe, Richard R. (California)

Williams, Jamie (California)

Attorneys(s) for Defendant

Ahern, Paul Edward (District of Columbia)

Anderson, Caroline J (District of Columbia)

Bayse, Chad (Maryland)

Berman, Marcia (District of Columbia)

Coppolino, Anthony J. (District of Columbia)

Dearinger, Bryan (District of Columbia)

Freeborne, Paul Gerald (District of Columbia)

Gilligan, James J (District of Columbia)

Haas, Alexander K (District of Columbia)

Heiman, Julia Alexandra (District of Columbia)

Johnson, Timothy Andrew (District of Columbia)

Patton, Rodney (District of Columbia)

Scott, Olivia Hussey (District of Columbia)

Whitman, James R. (District of Columbia)

Other Attorney(s)

Brown, Bruce D. (Virginia)

Gellis, Catherine Rachel (California)

Koltun, Joshua (California)

Page, Michael Henry (California)

Siavoshy, Babak (California)

Urban, Jennifer M. (California)

Documents in the Clearinghouse

Document

3:08-cv-04373

Docket [PACER]

Feb. 25, 2021

Feb. 25, 2021

Docket
1

3:08-cv-04373

Class Action Complaint

Jewel v. NSA

Sept. 17, 2008

Sept. 17, 2008

Complaint
18-1

08-04873

Classified Declaration of Dennis C. Blair Director of National Intelligence

April 3, 2009

April 3, 2009

Declaration/Affidavit

08-04873

Classified Declaration of Deborah A. Bonanni, National Intelligence Agency

Jewel v. NSA

April 3, 2009

April 3, 2009

Declaration/Affidavit
57

3:08-cv-04373

07-00693

06-01791

Order

Jan. 21, 2010

Jan. 21, 2010

Order/Opinion
75

10-15616

10-15638

Opinion

U. S. Court of Appeals for the Ninth Circuit

673 F.3d 902

Dec. 29, 2011

Dec. 29, 2011

Order/Opinion
83

3:08-cv-04373

Plaintiffs' Motion for Partial Summary Judgment Rejecting the Government Defendants' State Secret Defense

June 29, 2012

June 29, 2012

Pleading / Motion / Brief

08-04873

Classified Declaration of Frances J. Fleisch, National Intelligence Agency

Jewel v. NSA

Sept. 11, 2012

Sept. 11, 2012

Declaration/Affidavit

08-04873

Classified Declaration of James R. Clapper Director of National Intelligence

Sept. 11, 2012

Sept. 11, 2012

Declaration/Affidavit
113

3:08-cv-04373

Plaintiffs' Federal Rule of Evidence Section 1006 Summary of Voluminous Evidence Filed in Support of Their motion for Partial Summary Judgment and Opposition to the Government Defendants' Cross-Motion

Dec. 14, 2012

Dec. 14, 2012

Pleading / Motion / Brief

Resources

Docket

Last updated May 29, 2022, 3:16 a.m.

Docket sheet not available via the Clearinghouse.

Case Details

State / Territory: California

Case Type(s):

National Security

Special Collection(s):

Foreign Intelligence Surveillance Act -- All Matters

Foreign Intelligence Surveillance Act -- Telephony Metadata

Foreign Intelligence Surveillance Act—Internet Metadata

Key Dates

Filing Date: Sept. 18, 2008

Case Ongoing: Yes

Plaintiffs

Plaintiff Description:

All present and future United States persons who have been or will be subject to electronic surveillance by the National Security Agency without a search warrant or court order since September 12, 2001

Plaintiff Type(s):

Private Plaintiff

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: Yes

Class Action Outcome: Pending

Defendants

United States , Federal

Defendant Type(s):

Jurisdiction-wide

Law-enforcement

Case Details

Causes of Action:

Ex Parte Young (Federal) or Bivens

Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.

Declaratory Judgment Act, 28 U.S.C. § 2201

FISA Title I Warrant (Electronic Surveillance), 50 U.S.C. §§ 1801-1812

FISA Title IV order (pen register/trap-and-trace), 50 U.S.C. §§ 1841-1846

FISA Title V order (PATRIOT Act § 215, business records or other tangible things), 50 U.S.C. §§ 1861-1862

Constitutional Clause(s):

Freedom of speech/association

Unreasonable search and seizure

Availably Documents:

Trial Court Docket

Complaint (any)

Any published opinion

Outcome

Prevailing Party: None Yet / None

Nature of Relief:

None yet

Source of Relief:

None yet

Issues

General:

Record-keeping

Records Disclosure

Terrorism/Post 9-11 issues

Type of Facility:

Government-run