Filed Date: May 26, 2006
Clearinghouse coding complete
The Consolidation of Cases into 06-MD-1791
On August 9, 2006, the Judicial Panel on Multi District Litigation (MDL Panel) created this matter, MDL No. 06-1791, and set its venue in the Northern District of California. Ultimately, the case consolidated approximately 40 total cases, including consumer class actions against telecom companies, cases against the U.S. government, and cases by the government against state officials. First, the MDL Panel consolidated the consumer class actions against telecom companies because centralization under Section 1407 was necessary in order to eliminate duplicative discovery and prevent inconsistent pretrial rulings (particularly with respect to matters involving national security). At that time, the MDL Panel assigned Judge Vaughn R. Walker to handle the consolidated litigation. In re National Security Agency Telecommunications Records Litig., 444 F. Supp. 2d 1332, 1334 (Jud. Pan. Mult. Lit. 2006).
On May 26, 2006, California customers brought two state-law privacy suits in state court against telephone companies to enjoin the alleged disclosure to the National Security Agency (NSA) of telephone calling records (Riordan v. Verizon, 06-3574, and Campbell v. AT&T, 06-3596). The defendants removed the actions to the Northern District of California, and the cases were consolidated with the MDL. The customers moved to remand to state court. The government filed "statement of interest" in opposition to customers' motions to remand.
On January 18, 2007, Judge Walker denied the motions to remand. Judge Walker held that: (1) Stored Communications Act (SCA) did not completely preempt state-law privacy claim; (2) Foreign Intelligence Surveillance Act (FISA) did not completely preempt state-law claims; (3) federal common law did not completely preempt claims; (4) suits gave rise to federal jurisdiction under "embedded federal issue" doctrine; (5) suits gave rise to federal jurisdiction under federal officer removal statute; and (6) any remand would have been futile because of government's ability to intervene under California law and remove action. In re Nat'l Sec. Agency Telecommunications Records Litig., 483 F. Supp. 2d 934, 937 (N.D. Cal. 2007)
In February 2007, the MDL Panel transferred seven additional cases to the MDL. These included a class action suit by consumers against a telecom provider and suits by the U.S. as the plaintiff against defendant state officials in Missouri, Maine, New Jersey, Connecticut, and Vermont, seeking to enjoin them from investigating various telecom carriers concerning their alleged disclosure of customer telephone records for the NSA. The plaintiff in the suit against the telecom provider and the defendant state officials in the cases by the U.S. opposed the transfer, and the rest of the plaintiffs in the initially centralized actions joined in the motion. The MDL Panel denied the motion, reaffirming that these seven cases involved common questions of fact with the class actions previously centralized in the Northern District of California. In re NSA Telecommunications, 474 F.Supp.2d 1355.
In 2008, in the case Jewel v. National Security Agency, AT&T customers filed a class action lawsuit in the United States District Court for the Northern District of California against the United States. The plaintiffs, represented by public interest and private counsel, claimed that the defendants' 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. On October 28, 2008, Judge Walker related the case with Hepting v. AT&T. The MDL Panel then consolidated the case as part of the multi-district litigation consolidation.
The Litigation
On July 20, 2006, Judge Walker denied motions by the government and telecom providers to dismiss the litigation on the grounds that it would reveal state secrets. Judge Walker held that the government could not rely on the state secrets privilege and that a telecom defendant could not assert immunity. The Court, however, certified the case for immediate appeal and the defendants appealed to the Ninth Circuit Court of Appeals. Hepting v. AT&T, 439 F. Supp. 2d 974 (N.D. Cal. 2006).
On February 20, 2007, Judge Walker granted media entities' motions to intervene in Hepting v. AT & T for the purpose of seeking to unseal judicial records in the MDL but denied their motions to unseal documents. In re Nat'l Sec. Agency Telecommunications Records Litig., MDL 06-1791 VRW, 2007 WL 549854 (N.D. Cal. Feb. 20, 2007).
On April 26, 2007, the Ninth Circuit consolidated the defendants' appeal in Hepting with a pending appeal in Al-Haramain v. Bush. However, on November 16, 2007, the Ninth Circuit severed the two cases from each other and ordered that the cases would no longer be consolidated for any purpose. Hepting v. AT&T, 508 F.3d 898, 899 (9th Cir. 2007). For the Hepting appeal, oral argument before the Ninth Circuit was heard in August 2007.
On July 24, 2007, Judge Walker denied the government's motion for summary judgment in the six cases where the government sought to enjoin state officials from investigating telecom companies concerning their alleged disclosure of customer telephone records to the NSA. Judge Walker held that (1) the government had the authority, despite lack of statutory authorization, to seek injunctive relief; (2) abstention under the Younger doctrine was not warranted; (3) investigations did not violate the doctrine of intergovernmental immunity; (4) federal law did not preempt state investigations; and (5) investigation did not infringe on foreign affairs power of the federal government. In re Nat'l Sec. Agency Telecommunications Records Litig., 633 F. Supp. 2d 892 (N.D. Cal. 2007).
On November 6, 2007, Judge Walker granted the plaintiffs' motion for an order prohibiting the alteration or destruction of evidence during the pendency of the MDL. In re Nat'l Sec. Agency Telecommunications Records Litig., MDL. 06-1791VRW, 2007 WL 3306579 (N.D. Cal. Nov. 6, 2007).
Prior to any Ninth Circuit decision, in July 2008, Congress enacted the FISA Amendments Act, which granted retroactive immunity to telecommunications companies for past violations of the Foreign Intelligence Surveillance Act ("FISA") provided that the Attorney General of the United States certified to the relevant U.S. District Court that the surveillance either did not occur, it was legal, or it was authorized by the president. The Ninth Circuit returned the case to the District Court in light of the new statute. Hepting v. AT&T, 539 F.3d 1157 (9th Cir. 2008).
The MDL on Remand to the District Court: Introduction
After the Ninth Circuit returned the consolidated case to the District Court, Attorney General Michael Mukasey filed the requisite statutory certification in September 2008, and the Government moved to dismiss all claims against telecom company defendants.
On June 3, 2009, Judge Walker issued two orders. In the first order, Judge Walker granted the Government's motion to dismiss all of the claims in the MDL against the telecom providers. The first order covered most of the consolidated cases, but excluded eleven of them, brought not against the telecom providers but by or against the federal government. In the second order, Judge Walker addressed six of the remaining cases, granting the U.S.'s motion for summary judgment. These were cases the U.S. had filed as the plaintiff against defendant state officials, seeking to enjoin them from investigating various telecommunications carriers concerning their alleged disclosure of customer telephone records for the NSA. After these dismissals, five cases remained, all brought against the federal government.
First June 3, 2009, Order Dismissing Many of the Cases against Telecom Companies
In the first order dated June 3, 2009, summarized above, Judge Walker granted the Government's motion to dismiss all claims in the MDL against the telecom providers based upon the retroactive immunity provision of the FISA Amendments Act. Judge Walker held that the amendments to FISA were constitutional, did not violate the separation of powers doctrine, did not violate due process, and did not violate the First Amendment. Judge Walker dismissed the plaintiffs' claims, but without prejudice, saying that the plaintiffs could re-file if there were evidence of improper surveillance that fell outside the telecoms' immunity period found in the FISA amendments, which extended from Sept. 11, 2001 to Jan. 7, 2007. In re Nat. Sec. Agency Telecommunications Records Litig., 633 F. Supp. 2d 949 (N.D. Cal. 2009). These plaintiffs appealed.
The plaintiffs in four of the dismissed cases filed a motion for reconsideration, by the same June 3 order, of the Bellsouth Master Consolidated Complaint. The movants asserted that there was "a manifest failure by the Court to consider material facts which were presented to the Court before the June 3 Order and which show that the above-captioned Complaints contain allegations outside the limited coverage of Section 802. Specifically, the movants cite allegations in the complaints at issue that actionable activities commenced in February of 2001. On July 20, 2009, Judge Walker denied the plaintiffs' motion for reconsideration of the June 3, 2009, order. The plaintiffs appealed the dismissal. In re Nat'l Sec. Agency Telecommunications Records Litig., MDL 06-1791 VRW, 2009 WL 2171061 (N.D. Cal. July 20, 2009).
On December 29, 2011, the U.S. Court of Appeals for the Ninth Circuit affirmed the District Court's dismissal of the cases against the telecom companies finding Section 802 constitutional. Judge M. Margaret McKeown wrote the opinion, and Judges Harry Pregerson and Michael Daly Hawkins joined. Judge McKeown held that the FISA Amendments Act of 2008, which granted retroactive immunity to telecommunications companies who assisted the NSA in monitoring telephone and internet traffic, violated neither the due process rights of litigants nor the separation of powers. Although Judge McKeown's opinion affirmed most of the district court's rulings, the Ninth Circuit disagreed with the district court's conclusion that the immunity provisions of Section 802 were temporally limited. In re Nat'l Sec. Agency Telecommunications Records Litig., 671 F.3d 881 (9th Cir. 2011). On October 9, 2012, the Supreme denied certiorari review.
Second June 3, 2009, Order Dismissing Six Other Cases
In the second June 3, 2009, order, Judge Walker granted the U.S.'s motion for summary judgment regarding six of the other cases--Clayton v, AT & T, U.S. v. Clayton, U.S. v. Reishus, U.S. v. Farber, U.S. v. Palermino, and U.S. v. Volz) Except for the first case, these were cases where the U.S. had filed as the plaintiff against defendant state officials, seeking to enjoin them from investigating various telecommunications carriers concerning their alleged disclosure of customer telephone records for the NSA. Judge Walker held that the amendments to FISA preempting state investigations did not violate the Tenth Amendment. In re Nat'l Sec. Agency Telecommunications Records Litig., 630 F. Supp. 2d 1092 (N.D. Cal. 2009).
At this point, five cases remained:
The Remaining Five Cases: Guzzi v. Bush, Center for Constitutional Rights v. Obama, Jewel v. NSA, McMurray v. Verizon, and Shubert v. Obama
McMurray v. Verizon
On January 13, 2009, the MDL Panel consolidated another case with the MDL as a tagalong action. This was a class action suit against telecom providers and the U.S. This case was not included in either of the June 3, 2009, orders. Instead, on July 27, 2009, Judge Walker granted the defendants' separate motions to dismiss this case. In re Nat'l Sec. Agency Telecommunications Records Litig., 2009 WL 2245693 (N.D. Cal. July 27, 2009). The plaintiffs appealed. The plaintiffs challenged Section 802 as an unconstitutional taking under the Fifth Amendment. The plaintiffs rested their takings claim on the theory that application of Section 802 required dismissal of their case and thereby negates their cause of action under various federal statutes.
On December 29, 2011, Judge McKeown against wrote for the Ninth Circuit and affirmed the district court's dismissal of the plaintiffs' takings clause claim for lack of jurisdiction. Judge McKeown held that there was no valid takings claim associated with the activity of the telecoms. In re Nat'l Sec. Agency Telecommunications Records Litig., 669 F.3d 928 (9th Cir. 2011).
Guzzi v. Bush
On March 5, 2010, Judge Walker dismissed Guzzi v. Bush after the parties agreed to a stipulation of dismissal.
CCR v. Obama
On January 31, 2011, Judge Walker dismissed Center for Constitutional Rights v. Obama. The Court granted the government's motion for summary judgment because the plaintiffs failed to establish standing for any of their claims. The plaintiff appealed. On June 12, 2013, Judge McKeown again wrote for the Ninth Circuit and affirmed the district court's dismissal. In re Nat'l Sec. Agency Telecommunications Records Litig., 522 F. App'x 383 (9th Cir. 2013). The Court of Appeals relied on the Supreme Court's decision in Clapper v. Amnesty International, (133 S. Ct. 1138 (2013)). On November 1, 2013, The Ninth Circuit denied rehearing, and on March 19, 2014, the U.S. Supreme Court denied certiorari review.
Jewel v. NSA and Shubert v. Obama
The following two cases were no longer consolidated, though both still in remained in the Northern District of California in front of the same district judge (no longer Judge Walker, because of his retirement from the bench). Shubert v. Obama closed when Judge Jeffrey White granted summary judgment in favor of the defendants. In Jewel v. NSA, the plaintiffs appealed Judge White's grant of summary judgment in favor of the government; the Ninth Circuit ultimately affirmed summary judgment, and the case is now closed.
Summary Authors
Jessica Kincaid (7/1/2014)
Ellen Aldin (6/19/2020)
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)
Al-Haramain Islamic Foundation v. Bush, Northern District of California (2007)
Jewel v. National Security Agency, Northern District of California (2008)
Adler, Brian Hugh (California)
Afran, Bruce I. (New Jersey)
Albies, Jessica Ashlee (Oregon)
Alger, Timothy L. (California)
Ahern, Paul Edward (District of Columbia)
Adler, Brian Hugh (California)
Albies, Jessica Ashlee (Oregon)
Alger, Timothy L. (California)
Alton, Sam Jonathan (Missouri)
Bach, Sydney M (North Carolina)
Baden, Kimberly B (South Carolina)
Barnett, Alexander E. (New York)
Bergman, Matthew Phineas (Washington)
Brinckerhoff, Matthew Delmont (California)
Brosnahan, James J. (California)
Carstarphen, Edward Morgan (Texas)
Cherry, Myron Milton (Illinois)
DeLuca, Amato A. (Rhode Island)
DiMuzio, Elena Maria (California)
Donovan, Michael D (Pennsylvania)
Dulle, Joseph Richard (Missouri)
Eisenberg, Jon B. (California)
Eliasberg, Peter J. (California)
Emge, Derrick John (California)
Exnicios, Val Patrick (Louisiana)
Feeney, Daniel Martin (Illinois)
Finberg, James M. (California)
Flowers, Jodi W (South Carolina)
Fontenot, Amy Thomas (Louisiana)
Friedman, Jeff D. (California)
Gillespie, John Richard (Florida)
Goldberg, Cary Neal (Illinois)
Griffin, Edward Nelson (Maryland)
Heiman, Julia Alexandra (California)
Himmelstein, Barry R. (California)
Isaacson, Eric Alan (California)
Jaskol, Lisa Robin (California)
Johnson, Kelly Overstreet (Florida)
Kathrein, Reed R. (California)
Keisler, Peter D. (California)
Kelly, Jennifer Lloyd (California)
Krislov, Clinton A. (Illinois)
Lagarde, Melanie G (Louisiana)
Markman, Michael Myles (California)
Mason, Gary E. (District of Columbia)
Mass [inactive], Julia Harumi (California)
McSherry, Corynne (California)
Migliaccio, Nicholas A. (District of Columbia)
Migliori, Donald A (Rhode Island)
Moore, Thomas Edward III (California)
Mukasey, Michael B. (New York)
Nelson, Thomas Howard (California)
O'Malley, Michael C (New York)
Opsahl, Kurt Bradford (California)
Park, Wendy Sangbee (California)
Parrett, Vincent Ian (South Carolina)
Pastore, Claire Iris (California)
Philippi, Michael James (Illinois)
Pulgram, Laurence F. (California)
Pulver, Adam R. (District of Columbia)
Scarlett, Shana E. (California)
Schwarz, Steven Edward (Illinois)
Sobol, Michael W. (California)
Sternlieb, David H (New Jersey)
St. Pierre, Michael Alan (Rhode Island)
Traber, Theresa M. (California)
Tyre, James Samuel (California)
Vander Vliet, William Joel (Illinois)
Wagner, Nicholas JP (California)
Whitaker, Joshua G. (District of Columbia)
Wiebe, Richard R. (California)
Woods, Justin Israel (Louisiana)
Woodward, Martin Darren (Texas)
Ahern, Paul Edward (District of Columbia)
Anderson, David Lloyd (California)
Axelbaum, Marc H. (California)
Barr, William P. (District of Columbia)
Beisner, John (District of Columbia)
Berenson, Bradford Allan (District of Columbia)
Berman, Marcia (District of Columbia)
Boynton, Brian M (District of Columbia)
Brannen, Elizabeth Rogers (California)
Carpenter, David William (California)
Carroll, Catherine M.A. (District of Columbia)
Coppolino, Anthony J. (District of Columbia)
Ericson, Bruce A. (California)
Feinberg, Aimee Athena (California)
Finnegan, Sheila Marie (Illinois)
Freeborne, Paul Gerald (District of Columbia)
Frevola, Albert L. (California)
Gacki, Andrea Marie (California)
Gilligan, James J. (California)
Haas, Alexander Kenneth (California)
Jain, Samir Chandra (District of Columbia)
Knot, Craig Allen (California)
Kruger, Leondra R. (District of Columbia)
McNicholas, Edward Robert (District of Columbia)
Moss, Randolph Daniel (District of Columbia)
Odorizzi, Michelle L. (Illinois)
Orleans, Renee S. (District of Columbia)
Richert, Daniel John (California)
Rogovin, John Andrew (California)
Salpeter, Alan Norris (Illinois)
Shumsky, Eric A. (District of Columbia)
Sloat-Rogers, Vanessa Dawn (California)
Sorensen, Jacob R. (California)
Szabo, Susan Rochelle (California)
Tumlin−Bhattacharyya, Tracy Rupa (District of Columbia)
Last updated March 27, 2025, 8:25 a.m.
State / Territory: California
Case Type(s):
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: May 26, 2006
Case Ongoing: No
Plaintiffs
Plaintiff Description:
The plaintiffs in this consolidated multi district litigation include: telecom consumers who filed class actions against telecom companies, telecom consumers and organization who filed against the U.S. government, and the U.S. government who filed against state officials investigating the telecom companies.
Plaintiff Type(s):
U.S. Dept of Justice plaintiff
Attorney Organizations:
Center for Constitutional Rights (CCR)
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: No
Class Action Outcome: Not sought
Defendants
Verizon Communications, Inc., Private Entity/Person
Verizon Global Networks, Inc., Private Entity/Person
Verizon Northwest, Inc., Private Entity/Person
BellSouth Communications Systems, LLC, Private Entity/Person
AT&T Corp., Private Entity/Person
National Security Agency, Federal
Illinois Bell Telephone Company, Private Entity/Person
MCI, LLC, Private Entity/Person
New Cingular Wireless Services, Inc., Private Entity/Person
Pacific Bell Telephone Company, Private Entity/Person
SBC Long Distance, LLC, Private Entity/Person
Bright House Networks, LLC, Private Entity/Person
Comcast Telecommunications, Inc., Private Entity/Person
Nextel West Corp., Private Entity/Person
Sprint Communications Company L.P., Private Entity/Person
TDS Communications Solutions, Inc., Private Entity/Person
Transworld Network Corp., Private Entity/Person
Office of Foreign Assets and Control, Federal
Federal Bureau of Investigation, Federal
Defense Intelligence Agency, Federal
Department of Homeland Security , Federal
CT Department of Public Utility Control, State
Maine Public Utilities Commission, State
Deputy Attorney General of the State of New Jersey, State
Attorney General of New Jersey, State
Vermont Public Service Board, State
United States of America, Federal
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
Constitutional Clause(s):
Unreasonable search and seizure
Available Documents:
Outcome
Prevailing Party: Mixed
Nature of Relief:
Source of Relief:
Form of Settlement:
Issues
General/Misc.: