ELECTRONIC FRONTIER FOUNATION
CINYCOHN (SBN 145997)
2 cindy(êefforg
LEE TIEN (SBN 148216)
3 KURT OPSAHL (SBN 191303)
KEVIN S. BANSTON (SBN 217026)
4 JAMES S. TYR (SBN 083117)
454 Shotwell Street
San Francisco, California 94110
Telephone: (415) 436-9333; Facsimile: (415) 436-9993
6 KEKER & V AN NEST, LLP
7 RACHAEL E. MENY (SBN 178514)rmeny(êkvn.com
8 PAULA L. BLIZZAR (SBN 207920)MICHAEL S. KWU (SBN 198945)
9 AUDREY WALTON-HADLOCK (SBN 250574)710 Sansome Street
San Francisco, California 94111-170410 Telephone: (415) 391-5400; Facsimile: (415) 397-7188
LAW OFFICE OF RICHAR R. WIEBE
RICHAR R. WIEBE (SBN 121156)
12 wiebeêpacbe1I.net
425 California Street, Suite 2025
San Francisco, California 94104
Telephone: (415) 433-3200; Facsimile: (415) 433-6382
14 THE MOORE LAW GROUP
THOMAS E. MOORE III (SBN 115107)
tmoore(êmoorelawteam.com
16 228 Hamilton Avenue, 3rd FloorPalo Alto, California 94301
17 Telephone: (650) 798-5352; Facsimile: (650) 798-5001
Attorneys for Plaintiffs
442684.03
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
CAROLYN JEWEL, TASH HEPTING,
21 GREGORY HICKS, ERIK KNTZEN and
JOICE WALTON, on behalf of themselves
22 and all other similarly situated,
23
24
Plaintiffs,
v.
25 NATIONAL SECURITY AGENCY, et aI.,
26 Defendants.
27
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Case No. C-08-4373-VRW
CLASS ACTION
PLAINTIFFS' OPPOSITION TO
GOVERNMENT DEFENDANTS'
MOTION TO DISMISS AND FOR
SUMMARY JUDGMENT
Date:
Time:
Dept:
Judge:
July 15, 2009
10:30 a.m.
6, 1 ih Floor
Vaughn R. Walker
Date Compo Filed: September 18, 2008
PLAINTIFFS' OPPOSITION TO GOVERNENT DEFENDANTS' MOTION TO DISMISS AND FOR
SUMMARY JUDGMENT
CASE NO. C-08-4373-VRW
1 TABLE OF CONTENTS2 Pa2e
3 INTRODUCTION ...... .................................. ........... ............ .............. ..............................................1
4 ARGUMENT...................................................................................................................................1
5 i.
6
7
8
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10
11
12
13
14
15 II.
16
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III.
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442684.03
Sovereign immunity does not bar Plaintiffs' claims............................................................1
A. Congress waived sovereign immunity for Plaintiffs' damages claims. ...................1
1. Congress waived sovereign immunity for Plaintiffs' damages
claims under the Wiretap Act and ECP A. ...................................................1
2. Congress waived sovereign immunity for Plaintiffs' damages
claims under FISA. ......................................................................................4
B. Sovereign immunity does not bar Plaintiffs' equitable claims. ...............................6
1. Plaintiffs' "ultra vires" claims alleging the Governent Offcer
Defendants lack authority to conduct dragnet surveillance are
not claim~ ag~inst th~ United States and thus cannot be bared
by sovereign immunity. ...................................... ..........................................6
2. Congress waived sovereign immunity for Plaintiffs' equitable
relief claims, including Plaintiffs' AP A claim. ..........................................12
For purposes of Plaintiffs' claims, FISA preempts the common-law state
secrets privilege. ........................... .................................................................................... .14
A. Where section 1806(f) applies, it preempts the common-law state
secrets privilege. ................................................................................................... .15
B. FISA's section 1806(f) procedure applies to the evidence supporting
all of Plaintiffs' claims.......................................................................................... .16
Even if the state secrets privilege were not preempted, this case could not be
dismissed based on the privilege.. ..............;... .., .................. ............... ........ .... .... ..... ......... ..18
A. The narrow "very subject matter" litigation bar is limited to secret
agreements between a plaintiff and the executive, and does not apply
here........................................................................................................................ .18
B. Defendants cannot dismiss this suit based on their speculative
contention that future state secrets assertions wil prevent presentation
of evidence needed for Plaintiffs' prima facie case or Defendants'
defenses. ................................................................................................................ .19
CONCLUSION ..............................................................................................................................24
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PLAINTIFFS' OPPOSITION TO GOVERNENT DEFENDANTS' MOTION TO DISMISS AND FOR
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CASE NO. C-08-4373-VRW
442684.03
1
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3
TABLE OF AUTHORITIES
Pa2e( S)
FEDERAL CASES
4 Adams v. City of Battle Creek
5 250 F.3d 980 (6th Cir. 2001) .......................................................................................................5
Al-Haramain v. Bush
6 507 F.3d 1190 (9th Cir. 2007) ...........................................................................................passim
7 Aminoil Us.A., Inc. v. California State Water Resources Control Board
674 F.2d 1227 (9th Cir. 1982) ....................................................................~..............................11
8 Assiniboine & Sioux Tribes v. Bd. of Oil & Gas
792 F .2d 782 (9th Cir. 1986) .................................................................................................... .12
9
Block v. ND.
10 461 U.S. 273 (1983).............................................................................................................1 0, 13
11
12
13
14
15
16
Califano v. Sanders
430 U.S. 99 (1977)................................................................................................................... ..12
Central Reserve Life Insurance Co. v. Struve
852 F.2d 1158 (9th Cir. 1988) ...................................................................................................11
Chamber of Commerce v. Reich
74 F .3d 1322 (D. C. Cir. 1996)........................................ ..... ............... ........ .................................8
Conner v. Tate
130 F. Supp. 2d 1370 (N.D. Ga. 2001) ................................ ..... .................... ........................ .......5
Custis v. United States
511 U.S. 485 (1994)................................................................................................................. ....2
17 Dorris v. Absher
959 F. Supp. 813 (M.D. Tenn. 1997).................................... .......................................................5
18 DUf!an v. Rank
372 U.S. 609 (1963)...............................................,.................................................................. .11
19
Duncan v. Walker
533 U.S. 167 (2001).................................................................................... .................................3
Gilbert v. DaGrossa
756 F .2d 1455 (9th Cir. 1985) .. ...... .....;................ ............. ......... ............... .............................. ....5
20
21
22 Harmon v. Brucker
355 U.S. 579 (1958).....................................................................................................................8
23 Heptinf! v. AT&T Corvo
439 F. Supp. 2d.................................................................................................................. passim
24
In re National Sec. Af!encv Telecomm. Records Litif!.
25 564 F. Supp. 2d 1109 (N.D. CaI. 2008) ............................................................................. passim
Kasza v. Browner
26 133 F.3d 1159 (9th Cir. 1998) ...................................................................................................15
27 Lane v. Pena
518 U.S. 187 (1996).................................. ...................................................................................2
28
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PLAINTIFFS' OPPOSITION TO GOVERNENT DEFENDANTS' MOTION TO DISMISS AND FOR
SUMMARY JUGMENT
CASE NO. C-08-4373-VRW
442684.03
1 TABLE OF AUTHORITIES
(cont'd)2 Pa2e(s)
3 Larson v. Domestic & Foreif!n Commerce Corp.
337 U.S. 682 (1949).......................................................................................................7,8,9, 11
4
Mohamed v. Jeppesen Dataplan, Inc.
563 F. 3d 992 (9th Cir. 2009) ............................................................................................ passim
Multi Denominational Ministry of Cannabis & Rastafari, Inc. v. Gonzales
474 F. Supp. 2d 1133 (N.D. CaI. 2007) ...................................................................................2,5
7 North Side Lumber Co. v. Block
753 F.2d 1482 (9th Cir. 1985).................................................................... ................ .............. .14
Orf!anizaczon JD Ltda. v. US. Dep't of Justice
18 F .3d 91 (2d Cir. 1994) ........................................................................................................ ....5
Palomar Pomerado Health System v. Belshe
180 F.3d 1104 (9th Cir. 1999) ...................................................................................................12
PBA Local No. 38 v. Woodbridf!e Police Dep't
832 F. Supp. 808 (D. N.J. 1993) ..................................................................................................5
12 Pennhurst State School & Hospital v. Halderman
465 U. S. 89 (1984)....... ............................................................................................................ ..11
Philadelphia Co. v. Stimson
223 U.S. 605 (1912).....................................................................................................................8
14 Presbyterian Church (US.A.) v. US
870 F. 2d 518 (9th Cir. 1989) ................................................................................................... ..12
Ratzlaf v. U S
510 U.S. 135 (1994).....................................................................................................................3
5
6
8
9
10
11
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15
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17 Rochon v. Gonzales
438 F.3d 1211 (D.C. Cir. 2006) ...................................................................................................5
SE. C. v. Nacchio
_ F. Supp. 2d _, 2009 WL 690306 (D. Colo. Mar. 13 2009) .................................................16
Salazar v. Heckler
787 F .2d 527 (10th Cir. 1986) ........ ............. ......... ..... ............................................... ...................5
Totten v. United States,
92. U. S. 105 (1875).................................................................................................................... .19
Trudeau v. FTC
456 F .3d 178 (D.C. Cir. 2006).... ................ .................. ........... ................. ............................... ..12
United States v. Kinf!
395 U.S. 1 (1969)....................................................................................................................... i 4
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United States v. Novak
476 F.3d 1041 (9th Cir. 2007) ....... .......... ......... .......................................... ........................... ......6
Wiliams v. Citv of Tulsa
393 F. Supp. 2d 1124 (N.D. Okla. 2005).....................................................................................6
Wiliams v. Fanninf!
332 U.S. 490 (1947) ............................................ ..................................................................... ..11
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PLAINTIFFS' OPPOSITION TO GOVERNENT DEFENDANTS' MOTION TO DISMISS AND FOR
SUMMARY JUDGMENT
CASE NO. C-08-4373-VRW
442684.03
1
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TABLE OF AUTHORITIES
(cont'd)
Pa2e(s)
FEDERAL STATUTES
5 U. S. C. § 702......................................................................................................................... .12, 13
18 U.S. C. § 2510.............................. ............................................. ..................................................10
18 U.S.C. § 2511....................................................................................................................6,9, 14
18 U.S. C. § 2520.................................................................................................................... passim
18 U.S.C. § 2707 ..........................................................................................................2,3,5, 10, 13
18 U.S. C. § 2711 ....................................... ................ ............... ......................................................10
18 U.S .C. § 2712.................................................................................................................... passim
28 U.S. C. § 1331...................................... .................................................................. .................... .12
50 U.S.C. § 1801...................................................................................................................... ....4, 5
50 U.S.C. § 1806 ............................. .................................... ........................... ........................ passim
50 U.S. C. § 1810................................................................................................... ................. passim
50 U.S.C. § 1812......................................... ........................................................... ......,.............9, 14
13 USA PATRIOT Act of2001, Pub L. No. 107-56, 115 Stat. 272
("PATRIOT") ..........................................................................................................................3, 6
FEDERAL RULES
Fed. R. Civ. P. 25 ............................................................................................................................. 7
Fed. R. Civ. P. 56.............................. ....... ...................................................... ................. .........17, 23
CONSTITUTIONAL PROVISIONS
17 U.S. Const. amend. XI ......... ................. ....... ....................................... ..... ........................ ............. .11
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OTHER AUTHORITIES
H.R. Conf. Rep. No. 95-1720 (1978), reprinted in 1978 U.S.C.C.A.N.
4048 . .......... ................... .... ............................................................................................... ........ ..17
20 U.S. Departent of Justice, Searching & Seizing Computers and
Obtaining Elect. Evidence in Crim. Investigations
21 http://ww .usdoj .gov/criminal/cybercrime/s&smanuaI2002.pdf...............................................4
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iv
PLAINTIFFS' OPPOSITION TO GOVERNENT DEFENDANTS' MOTION TO DISMISS AND FOR
SUMMARY JUGMENT
CASE NO. C-08-4373-VRW
1 INTRODUCTION
2 This case arises out of systemic, warrantless Governent surveilance of the
3 communications and communications records of milions of ordinary Americans, in violation of
4 longstanding law and the Constitution. The Governent Defendants Sued in their Offcial
5 Capacity ("Defendants") here seek to bar judicial review of this evidence, effectively excluding
6 the judicial branch from enforcing the privacy protections that the law and the Constitution
7 provide to all Americans.
8 Defendants' Motion to Dismiss is almost wholly a rehash of sovereign immunity and
9 state secrets arguments that this Court and the Ninth Circuit have soundly rejected; what little is
10 new is equally meritless. The motion should be denied.
11 ARGUMENT
12 I. Sovereign immunity does not bar Plaintiffs' claims.
13 Defendants first argue that sovereign immunity shields them against Plaintiffs' claims for
14 both damages and equitable relief. Neither argument succeeds.
15 A. Congress waived sovereign immunity for Plaintiffs' damages claims.
16 Congress has expressly waived sovereign immunity for all of Plaintiffs' damages claims
17 under the Wiretap Act, the Electronic Communications Privacy Act (ECP A), and the Foreign
18 Intellgence Surveilance Act (FISA). First, Congress waived sovereign immunity against
19 Plaintiffs' counts IX, XII, and XV for violations of the Wiretap Act and ECP A according to the
20 plain language of 18 US.C. § 2712(a), which authorizes suits against the United States for any
21 willful violation ofthose statutes. Second, as this Court has ruled, in 50 D.S.C. § 1810 Congress
22 waived sovereign immunity against claims such as count VI for unlawful electronic surveilance
23 in violation ofFISA. In re Natl Sec. Agency Telecomm. Records Litig., 564 F. Supp. 2d 1109,
24 1124-25 (N.D. caI. 2008) ("Al-Haramain").
25
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Congress waived sovereign immunity for Plaintiffs' damages claims under
the Wiretap Act and ECP A.
The plain language of 18 US.c. § 2712 expressly waives sovereign immunity and
1.
authorizes damages suits against the United States for "any wilful violation" of any provision of
442684.03
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PLAINTIFFS' OPPOSITION TO GOVERNENT DEFENDANTS' MOTION TO DISMISS AND FOR
SUMMARY JUGMENT
CASE NO. C-08-4373-VRW
442684.03
1 the Wiretap Act or ECPA. 18 US.C. § 2712(a). The statute provides:
2 Any person who is aggreved by any willful violation
ofthis chapter (ECP A) or
3 of chapter 119 of this title (the Wiretap Act) or
of sections 106(a), 305(a), or 405(a) of (FISA)
4 may commence an action in United States District Court against the United States
to recover money damages.
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18 U.S.C. § 2712(a) (line breaks added).
Ignoring this plain language, Defendants make the extraordinary claim that section
2712's waiver of sovereign immunity does not actually reach surveillance in violation of these
laws. Instead, Defendants argue that the waiver is limited to violations of a few specific Wiretap
Act and ECPA provisions that regulate the government's disclosure of information obtained
pursuant to those statutes, i.e., 18 US.c. §§ 2520(g) and 2707(g). See Gov't Br. at 5. However,
as this Court has held, it is "(t)he plain language of the statute(J which the cour must use as its
primary compass." Al-Haramain, 564 F. Supp. 2d at 1134 (internal citation omitted). In this
case, the compass's direction is unmistakable.
Section 2712's plain and unambiguous statement that the United States is subject to suit
for any wilful violation of any provision of ECP A or the Wiretap Act satisfies the rule that
waivers of federal sovereign immunity "must be unequivocally expressed in statutory text."
Lane v. Pena, 518 US. 187, 192 (1996); see also Multi Denominational Ministry of Cannabis &
Rastafari, Inc. v. Gonzales, 474 F. Supp. 2d 1133, 1140 (N.D. CaI. 2007) (lawsuits for damages
against federal employees in their offcial capacities "canot be maintained unless Congress has
explicitly waived the sovereign immunity ofthe United States."). If Congress had wished to
limit section 2712's waiver to paricular provisions of the Wiretap Act and ECP A, "it knew how
to do so." Custis v. United States, 511 U.S. 485, 492 (1994). Indeed, Congress placed a specific
limit on FISA causes of action in the very same sentence, waiving sovereign immunity only as to
particular provisions ofFISA not already subject to FISA's own waiver provisions. See 18
US.C. § 2712(a). No such limit, however, was placed on Wiretap Act or ECP A causes of
action.
This plain language reading of 18 U.S.C. § 2712(a) is consistent with other provisions of
2
PLAINTIFFS' OPPOSITION TO GOVERNMENT DEFENDANTS' MOTION TO DISMISS AND FOR
SUMMARY JUGMENT
CASE NO. C-08-4373-VRW
1 section 2712, provisions that Defendants' argument would render superfluous. A "cardinal
2 principle of statutory construction" is that cours must "give effect, if possible, to every clause
3 and word of a statute." Duncan v. Walker, 533 U.S. 167, 174 (2001) (internal quotations
4 omitted). For instance, section 2712(b)(4) provides that actions brought under section 2712 must
5 use the procedures set forth in 50 U.S.C. § 1806(f), which "shall be the exclusive means by
6 which materials governed by th(at) section(J may be reviewed." The referenced section, 1806(f),
7 then specifies that judicial review shall be "as may be necessary to determine whether the
8 surveilance of the aggrieved person was lawfully authorized and conducted." 50 U.S.C. §
9 1806(f) (emphasis added). Congress thus anticipated and provided specific procedures for
10 judicial consideration of the legality of surveilance in section 2712 cases against the United
11 States. Section 2712(b)( 4) would be rendered nugatory by Defendants' reading that the United
12 States canot be sued for any unlawful sureillance, but only for unlawful disclosures of
13 surveillance-derived information. See Gov't Br. at 4-5.
14 Defendants wilfully misread the statute when they counter that a plain language reading
15 of 18 US.c. § 2712's sovereign immunity waiver would "emasculate" section 223 of the USA
16 PATRIOT Act's other amendments to the Wiretap Act and ECPA. Gov't Br. at 4; USA
17 PATRIOT Act of2001, Pub L. No. 107-56, 115 Stat. 272 ("PATRIOT") at § 223(a)(1), (b)(1)
18 (inserting the words "other than the United States" into the list of potential defendants in actions
CY
19 under 18 US.C. §§ 2520, 2707). Congress's purpose was not to eliminate all causes of action
20 against the governent for sureillance in violation of those statutes, but instead to replace the
21 pre-existing causes of action under sections 2520 and 2707 with a new cause of action under
22 section 2712 that provides new procedures and requirements specific to suits against the United
23 States.
24 Defendants' resort to legislative history is both unecessary and improper, because the
25 plain language of section 2712 is clear. See Gov't Br. at 6; Ratzlafv. U 8.,510 U.S. 135, 147-48
26 (1994) (explaining that "we do not resort to legislative history to cloud a statutory text that is
27 already clear"). Nonetheless, none ofthe history cited by Defendants supports their argument
28 that Congress intended section 2712 to waive sovereign imnunity only against claims for
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PLAINTIFFS' OPPOSITION TO GOVERNENT DEFENDANTS' MOTION TO DISMISS AND FOR
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CASE NO. C-08-4373-VRW
442684.03
1 unauthorized disclosures. Rather, that history merely confirms that a waiver for disclosure
2 claims was one of that section's purposes. See Exhibits 3-5 to Gov't Br. (not indicating that
3 disclosure concerns were section's only purpose).
4 In fact, when discussing liability for willful violations ofECP A, the Justice Deparment's
5 own sureillance manual warns governent. agents that they may be sued for unauthorized
6 disclosures under section 2712 in addition to being sued for illegal surveillance:
7 Although ECP A does not provide a suppression remedy for statutory violations, it
does provide for civil damagès ... against officers and employees of the United
8 States who have engaged in willful violations of the statute. Liability and
discipline can result not only from violations of the rules already described in this
9 chapter (i.e., ECP A's rules governing governent access to content and records
stored by electronic communication service providers), but also from the
10 improper disclosure of some kinds of ECPA-related information.
11 U.S. Dep't of Justice, Searching & Seizing Computers & Obtaining Elec. Evid. in Crim.
12 Investigations, Section 2, at 109-110, available at
13 http://ww . usdoj .gov / criminal/ cybercrime/ s&smanuaI2002.pdf (emphasis added).
14
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Congress waived sovereign immunity for Plaintiffs' damages claims under
FISA.
2.
As this Court ruled in Al-Haramain, Congress waived sovereign immunity for FISA
damages claims under 50 US.C. § 1810. See 564 F. Supp. 2d at 1124-25. Congress waived
sovereign immunity in two ways. First, as this Court held, Congress waived immunity by
expressly making federal officers acting in their offcial capacities subject to suit for damages.
See id. Second, Congress also waived immunity by expressly making "any . . . entity,"
including the United States, subject to suit. See 50 U.S.c. § 1801(m) (defining "Person(s)"
amenable to suit to include "any. . . entity").
FISA's provision for civil damages provides for relief against "any person" who conducts
unlawful electronic surveilance, 50 U.S.C. § 1810, and as defined in FISA, a "person" includes
"any offcer or employee of the Federal Governent." 50 U.S.C. § 1801(m). Al-Haramain
explains:
FISA directs its prohibitions to "Federal offcers and employees" . . . and it is only
such officers and employees acting in their offcial capacities that would engage
in surveillance ofthe type contemplated by FISA. The remedial provision of
FISA in section 1810 would afford scant, if any, relief if it did not lie against such
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PLAINTIFFS' OPPOSITION TO GOVERNENT DEFENDANTS' MOTION TO DISMISS AND FOR
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CASE NO. C-08-4373-VRW
442684.03
1 "Federal officers and employees" carrying out their official functions. Implicit in
the remedy that section 1810 provides is a waiver of sovereign immunity.
2
3
4
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11
12
13
14
15
16
17
18
564 F. Supp. 2d at 1125 (internal citations omitted). That Al-Haramain holding flows directly
from the rule, previously recognized by this Court, that an action seeking damages against
federal officers and employees in their official capacities "is considered a suit against the United
States." Multi Denominational Ministry, 474 F. Supp. 2d at 1140; accord, Gilbert v. DaGrossa,
756 F.2d 1455, 1458 (9th Cir. 1985). By prescribing civil damages liability for federal offcers
or employees-and hence the United States-through its definition of "person," FISA waives
federal sovereign immunity despite the absence of an express specification of "the United
States." Cf Salazar v. Heckler, 787 F.2d 527,528-529 (10th Cir. 1986) (Title VII of Civil
Rights Act of 1964, which authorizes civil actions for employment discrimination by specifying
"the head" of an offending federal entity as defendant, waives sovereign immunity despite failure
to specify "the United States"); accord, Rochon v. Gonzales, 438 F.3d 1211, 1215-16 (D.C. Cir.
2006).
FISA also waives sovereign immunity by its inclusion of "any. .. entity" in its definition
of "person(s)" amenable to suit under 50 U.S.c. § 1810. See 50 U.S.c. § 1801(m) (defining
"person"). Prior to 2001, FISA, the Wiretap Act, and ECP A each imposed liability on "any. . .
entity," including the United States. See Organizacion JD Ltda. v. US. Dep't of Justice, 18 F.3d
91,94-95 (2d Cir. 1994) (per curiam) (finding waiver of sovereign immunity against ECPA
19
claims under 18 U.S.C. § 2707 based on statute's applicability to any "entity"). i Congress
20
21
22
23
24
25
26
27
28
preserved this understanding of "entity" in 2001, when it left FISA's provision unchanged while
amending the Wiretap Act and ECP A civil causes of action by inserting "other than the United
States" at the end of the list of potential defendants in those statutes, in order to exclude the
United States from the entities liable under those two statutes. See PATRIOT § 223(a)(1) and
i See also Adams v. City of Battle Creek, 250 F.3d 980, 985-86 (6th Cir. 2001) ("entity" included
governental entities such that municipal governent could be sued for Wiretap Act violations
under 18 U.S.C. § 2520); PBA Local No. 38 v. Woodbridge Police Dep 't, 832 F. Supp. 808, 823
(D. N.J. 1993) (same); Dorris v. Absher, 959 F. Supp. 813, 819-21 (M.D. Tenn. 1997) (same),
affirmed in part and reversed in part on other grounds, 179 F.3d 420 (6th Cir. 1999); and
Conner v. Tate, 130 F. Supp. 2d 1370, 1373-76 (N.D. Ga. 2001) (same under both ECP A and
Wiretap Act).
5
PLAINTIFFS' OPPOSITION TO GOVERNENT DEFENDANTS' MOTION TO DISMISS AND FOR
SUMMARY JUGMENT
CASE NO. C-08-4373-VRW
1 (b)(1) (amending 18 U.S.C. §§ 2520,2707). Ifthe term "entity" did not already include the
2 United States, those amendments would have been unnecessary and their language superfluous.
3 See Willams v. City of Tulsa, 393 F. Supp. 2d 1124, 1132-33 (N.D. Okla. 2005) ("Congress'
4 subsequent amendment in 2001 to exclude the United States from entities that could be liable
5 (under the Wiretap Act) evidences a Congressional understanding that the 1986 amendment
6 (adding 'entity' to the list of potential defendants in 18 U.S.C. § 2520) created governental
7 liability.").
8 Like the Wiretap Act and ECP A, FISA comprehensively regulates governent
9 surveilance of communications, and together with those statutes provides the "exclusive means"
10 by which the governent may conduct such surveillance. See 18 U.S.C. § 2511(2)(f).
11 . Therefore, this Court can and should read "entity" in FISA to include the United States, just as
12 that same term was construed in the Wiretap Act and ECP A prior to PATRIOT. See United
13 States v. Novak, 476 F.3d 1041, 1051 (9th Cir. 2007) (explaining courts should "interpret similar
14 language in different statutes in a like manner when the two statutes address a similar subj ect
15 matter"). If Congress had intended to create sovereign immunity against FISA damages suits
16 under 50 U.S.C. § 1810 and to exclude the United States from the entities that are liable under
17 that section, it would have had to insert "other than the United States" into the statute, as
18 Congress did with the specific provisions of the Wiretap Act and ECPA that it amended in
19 PATRIOT. It did not.
20 B.
21
22
Sovereign immunity does not bar Plaintiffs' equitable claims.
1. Plaintiffs' "ultra vires" claims alleging the Government Officer Defendants
lack authority to conduct dragnet surveilance are not claims against the
United States and thus cannot be barred by sovereign immunity.
23 The sovereign immunity analysis for equitable relief claims against government offcers
24 is fundamentally different from the sovereign immunity analysis for damages claims. Here,
25 Counts V, VII, X, and XIII seek equitable relief against Governent Offcer Defendants
26 Alexander, Holder, and Blair on the grounds that they lack statutory authority for the dragnet
27 surveilance they are conducting and that they are exceeding statutory limitations on their
28
442684.03
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PLAINTIFFS' OPPOSITION TO GOVERNENT DEFENDANTS' MOTION TO DISMISS AND FOR
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442684.03
1 authority.2 Defendants' argument that sovereign immunity bars these claims ignores the fact that
2 these "ultra vires" claims against governent offcers are not claims against the United States to
3 which sovereign immunity attaches.
3
4 An equitable relief claim to restrain a federal officer from exceeding the powers he or she
5 has been granted by statute-an ultra vires claim-is not a claim against the United States, and
6 for that reason it is not barred by sovereign immunity. The dividing line, as the Supreme Court
7 explained in Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949), is whether
8 the claim alleges acts by the offcer that, even if wrongful, are within the scope of the authority
9 337 U.S. at 690. Congress has granted or instead alleges acts by the officer beyond the limits of
10 his or her authority. Only "if the actions of an offcer do not conflict with the terms of his valid
11 statutory authority, . . . are (they) the actions ofthe sovereign" and subject to sovereign
12 immunity. Id. at 695 (emphasis added). Otherwise, "the conduct against which specific relief is
13 sought is beyond the offcer's powers and is, therefore, not the conduct ofthe sovereign," and
14 sovereign immunity does not apply. Id.
15 As Larson explains:
16 where the offcer's powers are limited by statute, his actions beyond those
limitations are considered individual and not sovereign actions. The officer is not
17 doing the business which the sovereign has empowered him to do or he is doing it
in a way which the sovereign has forbidden. His actions are ultra vires his
18 authority and therefore may be made the object of specific relief. It is important
to note that in such cases the relief can be granted, without impleading the
19 sovereign, only because ofthe offcer's lack of delegated power. A claim of error
in the exercise ofthat power is therefore not suffcient.
20
21
22
23
24
25
26
27
28
2 The automatic substitution provisions of
Federal Rule of Civil Procedure 25( d) (1 ) for official-
capacity claims substitute Defendants Holder and Blair for Defendants Mukasey and McConnell
with respect to Plaintiffs' ultra vires claims brought under Larson v. Domestic & Foreign
Commerce Corp., 337 U.S. 682 (1949). Fed. R. Civ. Pro. 25(1) & 1961 amendment advisory
comm. note (citing Larson; explaining that "( t )he expression 'in his official capacity' (in Rule
25( d)) is to be interpreted in its context as a simple procedural rule for substitution; care should
be taken not to distort its meaning by mistaken analogies to the doctrine of sovereign immunity,"
and that Rule 25(d)'s offcial-capacity substitution "also appl(ies) to actions to prevent offcers
from acting in excess of their authority"). In Counts V, VII, X, and XIII, Plaintiffs seek
equitable relief to confine the actions of Governent Officer Defendants Alexander, Holder, and
Blair within the statutory limits of their offices. As Rule 25( d) recognizes and as the text infra
explains, these Larson ultra vires claims for equitable relief are official-capacity claims to which
sovereign immunity does not attach.
3 Defendants do not contest that Counts I, III, and XVII properly state claims for equitable relief
against them for constitutional violations.
7
PLAINTIFFS' OPPOSITION TO GOVERNMENT DEFENDANTS' MOTION TO DISMISS AND FOR
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1 Id. at 689-690. Because actions beyond the limits set by Congress are not those ofthe sovereign,
2 enjoining the offcer from transgressing those limits does not enjoin any act ofthe sovereign and
3 does not interfere with the authority or impose upon the discretion of the sovereign. Indeed, it is
4 the sovereign that has imposed the statutory limits upon the offcer that the offcer is
5 transgressing.
6 Thus, "under Larson. . ., if the federal offcer, against whom injunctive relief is sought,
7 allegedly acted in excess of his legal authority, sovereign immunity does not bar a suit. . .
8 (T)here is no sovereign immunity to waive-it never attached in the first place." Chamber of
9 Commerce v. Reich, 74 F.3d 1322, 1329 (D.C. Cir. 1996); accord, Harmon v. Brucker, 355 U.S.
10 579,581-82 (1958) (explaining "judicial relief is available to one who has been injured by an act
11 of a governent offcial which is in excess of his express or implied powers"); Philadelphia Co.
12 v. Stimson, 223 U.S. 605, 620, 621-22 (1912) (explaining that "in case of an injury threatened by
13 his illegal action, the offcer cannot claim immunity from injunction process. . . . ( when) acting
14 in excess of his authority," and that "there may exist ground for equitable relief, when an officer,
15 insisting that he has the warrant ofthe statute, is transcending its bounds, and thus unlawfully
16 assuming to exercise the power of governent against the individual"). For example, in Harmon
17 v. Brucker, the Secretary of the Ary had issued dishonorable discharges to the plaintiffs based
18 on conduct occurrng before their military service began. 355 U.S. at 580. Because the
19 Secretary's statutory authority limited his power to issue dishonorable discharges to instances of
20 dishonorable conduct occurrng during military service, the Secretary's actions were in excess of
21 his authority and the plaintiffs were entitled to injunctive relief directing the Secretary to issue
22 them honorable discharges. Id. at 582-83.
23 While Larson is recognized as setting the legal standard in this area, the plaintiff in
24 Larson failed the test set out by the Supreme Court. In contrast to the situation here, in Larson
25 the plaintiff's allegations "were not based and did not purport to be based upon any lack of
26 delegated power." Larson, 337 U.S. at 691. The plaintiff sued a governent officer seeking
27 specific performance of a governent contract, but the officer "had the power and the duty to
28 construe such contracts and to refuse delivery in cases in which he believed that the contract
8
PLAINTIFFS' OPPOSITION TO GOVERNMENT DEFENDANTS' MOTION TO DISMISS AND FOR
442684.03 SUMMARY JUDGMENT
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1 -terms had not been complied with. His action in so doing in (Larson) was, therefore, within his
2 authority...." Id. at 703. Because the plaintiff did not allege any ultra vires acts by the offcer,
3 sovereign immunity protected the officer.
4 Here, Plaintiffs' complaint does allege ultra vires acts by the Governent Offcer
5 Defendants, i.e., a program of dragnet surveilance that the offcers lack any power to conduct
6 and that reaches far beyond the narrow statutory limits Congress has imposed on them in the
7 Wiretap Act, ECP A, and FISA. The complaint alleges the factual details of the dragnet content
8 and records surveilance program and explains Defendants' control of and participation in the
9 program. Complaint ~~ 7-11, 39-49, 50-81, 82-97. On the basis of these factual allegations,
10 Counts V, VII, X, and XIII allege that by participating in the dragnet surveillance program
11 Governent Officer Defendants Alexander, Holder, and Blair have acted in excess of
their
12 statutory authority, exceeding the limits that the Wiretap Act, ECP A, and FISA place on their
13 authority. Complaint ~~ 76-79,92-95, 150-51, 154-55, 177, 181-82,214,218-19,237,241-42.
14 For example, the complaint alleges that "(b)y the acts alleged herein, Defendants acting in excess
15 of their statutory authority. .. have intentionally engaged in . . . electronic surveilance. . . not
16 authorized by any statute" and that "by the acts alleged herein, Defendants acting in excess of
17 their statutory authority and in violation of statutory limitations have intentionally disclosed or
18 used information obtained under color of law by electronic surveilance, knowing or having
19 reason to know that the information was obtained through electronic surveillance not authorized
20 by statute." Complaint ~~ 150-51.
21 Further reinforcing the express statutory limits that the Wiretap Act, ECP A, and FISA
22 impose on the Governent Offcer Defendants' conduct is Congress's command that those
23 statutes are the "exclusive means" by which governent offcers may intercept or conduct
24 electronic surveilance of domestic communications. 18 U.S.C. § 2511 (2)(f); 50 U.S.c.
25 § 1812(a). Counts V, VII, X, and XIII, are proper ultra vires claims as to which sovereign
26 immunity does not attach, because they allege each "officer's lack of delegated power" rather
27 than "error in the exercise of that power." See Larson, 337 U.S. at 689-690.
28 Nor do the statutes Defendants cite foreclose equitable relief against federal offcers for
9
PLAINTIFFS' OPPOSITION TO GOVERNENT DEFENDANTS' MOTION TO DISMISS AND FOR
442684.03 SUMMARY JUGMENT
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1 ultra vires conduct. Rather, 18 U.S.c. § 2520 and 18 U.S.c. § 2707(a) authorize suits for
2 equitable relief against "persons," a term expressly including employees of
the United States like
3 Governent Offcer Defendants Alexander, Holder, and Blair; the statutes do not purport to
4 exclude Larson ultra vires claims. 18 US.C.§ 2510(6) ("any employee, or agent of
the United
5 States"); 18 U.S.c. § 2711(a) (same). 18 U.S.C. § 2712 addresses only claims against the United
6 States, which an ultra vires claim is not. Finally, 50 U.S.C. § 1810 does not purport to forbid
7 ultra vires suits against governent officers and does not purport to make damages the exclusive
8 remedy for FISA violations. Nor do Defendants point to any legislative history or other evidence
9 of congressional intent to preclude ultra vires suits under the Wiretap Act, ECP A, and FISA.
10 Defendants' reliance on Quiet Title Act decisions to argue that Congress has forbidden
11 Plaintiffs' ultra vires claims is equally il-founded. See Gov'tBr. at 9 (citing Blockv. ND., 461
12 U.S. 273 (1983), and Alaska v. Babbitt, 75 F.3d 449 (9th Cir. 1996)). In the Quiet Title Act,
13 Congress specifically intended to preclude ultra vires suits seeking a judgment depriving the
14 United States oftitle to real property.4 Block, 461 U.S. at 281-86. Congress expressed no
15 similar intent here.
16 Defendants' argument that Congress made only a limited waiver of
sovereign immunity
17 in 18 U.S.c. § 2712 and by doing so forbade ultra vires suits also lacks merit. Because ultra
18 vires suits are not suits against the United States and do not require a waiver of sovereign
19 immunity, a parial waiver of sovereign immunity against the United States does not demonstrate
20 an intent to preclude ultra vires suits against federal offcers who exceed the limits of
their
21 statutory authority.
22 Defendants also err in contending that compellng a federal
officer to remain within the
23 limits of his or her statutory authority interferes with the public administration. There is no
24 public interest in unauthorized, lawless conduct by federal officials, and preventing lawless
25
26
27
28
4 Such a suit would not be a true ultra vires claim in any event, for its purpose would not be to
obtain an in personam judgment against an officer confining his actions within the limits of
his
statutory authority, but an in rem judgment depriving the United States of its claimed property
interest. In such suits, the plaintiff does not assert that the offcer lacks statutory authority to
deal with the governent's real property, but asserts only that the governent lacks title to the
property over which the officer exercises authority.
10
PLAINTIFFS' OPPOSITION TO GOVERNMENT DEFENDANTS' MOTION TO DISMISS AND FOR
SUMMARY JUDGMENT
CASE NO. C-08-4373-VRW
442684.03
1 conduct advances, rather than interferes with, the public administration. Rather, in a "suit
2 against a public offcial who invades a private right. . . by exceeding his authority," the Supreme
3 Court has recognized that "relief against the offending offcer could be granted without risk that
4 the judgment awarded would '. . . interfere with the public administration.'" Wiliams v.
5 Fanning, 332 U.S. 490, 493 (1947). In Dugan v. Rank, 372 U.S. 609,620-22 (1963), the
6 Supreme Court reaffrmed that Larson ultra vires actions are "exceptions to the. . . general rule"
7 regarding suits that might "interfere with the public administration," and remain outside the
8 scope of sovereign immunity.
9 Finally, Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984), has no
10 application here. That case involved efforts to obtain injunctive relief against state, not federal,
11 officials to enforce state, not federal, law. In that context, the Supreme Court held that a federal
12 court could not intrude upon state sovereignty by enjoining state offcials for their failure to
13 operate a state hospital for the mentally retarded in a manner that met state standards of care.
14 Pennhurst, 465 U.S. at 106. The federalism, Eleventh Amendment, and Supremacy Clause
15 questions involved in determining the circumstances under which a federal court can impinge on
16 state sovereignty by ordering injunctive relief against state offcers do not apply in actions like
17 this one alleging ultra vires conduct by federal offcers. In any event, Penn hurst distinguished
18 ultra vires claims from claims that an officer has acted improperly but within the scope of his or
19 her authority. Only the latter are suits against the sovereign with the potential to interfere with
20 the public administration, thus requiring a waiver of sovereign immunity, and only the latter
21 were present in Pennhurst. Id. at 101 n.11. 11. Here, by contrast, Plaintiffs seek relief against
22 the Governent Offcer Defendants for acting in excess of their statutory authority. Thus,
23 Pennhurst did not and could not have overrled or limited Larson as Defendants erroneously
24 suggest. 5
25
26 5 Nor do the other cases Defendants cite support their contention that Plaintiffs' ultra vires
claims are barred by sovereign immunity. Central Reserve Life Insurance Co. v. Struve, 852
27 F.2d 1158, 1160-61 (9th Cir. 1988), was a case seeking to enforce state law against state
officials, and thus was barred by Pennhurst. In Aminoil u.s.A., Inc. v. California State Water
28 Resources Control Board, 674 F.2d 1227, 1234 (9th Cir. 1982), the Ninth Circuit found that the
challenged conduct was within the federal official's statutory authority and not ultra vires.
11
PLAINTIFFS' OPPOSITION TO GOVERNMENT DEFENDANTS' MOTION TO DISMISS AND FOR
442684.03 SUMMARY JUGMENT
CASE NO. C-08-4373-VRW
442684.03
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
2. Congress waived sovereign immunity for Plaintiffs' equitable relief claims,
including Plaintiffs' APA claim.
Section 702 of the Administrative Procedures Act waives sovereign immunity for claims
against governent agencies and officers seeking equitable relief. 5 US.C. § 702. Section
702' s waiver applies both to claims brought under section 704 or other provisions of the AP A
and to claims brought outside the AP A to enforce other statutory or constitutional provisions.
Trudeau v. FTC, 456 F.3d 178, 186 (D.C. Cir. 2006) (holding section 702's "'waiver of
sovereign immunity applies to any suit whether under the AP A or not'''; quoting Chamber of
Commerce, 74 F.3d at 1328); Presbyterian Church (US.A.) v. Us., 870 F.2d 518,525 (9th Cir.
1989) (explaining "§ 702 waives sovereign immunity in all actions seeking relief from offcial
misconduct"); Assiniboine & Sioux Tribes v. Bd. of Oil & Gas, 792 F.2d 782, 793 (9th Cir. 1986)
(same).
Thus, section 702's waiver applies to Count XVI, which seeks equitable relief under the
AP A against the governent agency Defendants (the United States, the Department of Justice,
and the NSA) and against Governent Offcer Defendants Alexander, Holder, and Blair for
constitutional and statutory violations.6 Section 702 also waives any possible sovereign
immunity defense to Counts V, VII, X; and XIII (even though, for the reasons stated in the
preceding section, there is no sovereign immunity defense to those claims and thus no need for a
waiver). Trudeau, 456 F.3d at 186; Presbyterian Church, 870 F.2d at 525.
Defendants do not contest that Plaintiffs' AP A claim in Count XVI is proper as to the
constitutional violations alleged. They contend, however, that section 702's waiver does not
apply to Plaintiffs' AP A claim in Count XVI to the extent it alleges violations of the Wiretap
Act, ECP A, and FISA. In support of that contention, Defendants rely on an exception to section
702's sovereign immunity waiver that applies "if any other statute that grants consent to suit
Palomar Pomerado Health System v. Belshe, 180 F .3d 1104, 1108 (9th Cir. 1999), was a suit
26 . against state offcials with no allegation of ultra vires conduct.
6 Defendants spawn a red herrng when they assert that there is no jurisdiction for claims arsing
under the AP A. The general federal question statute, 28 U.S.C. § 1331, gives this Court
jurisdiction over actions arising under section 704 or other provisions of the AP A. Califano v.
28 Sanders, 430 U.S. 99, 106-07 (1977); Trudeau, 456 F.3d at 185.
12
PLAITIFFS' OPPOSITION TO GOVERNENT DEFENDANTS' MOTION TO DISMISS AND FOR
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CASE NO. C-08-4373-VRW
27
1 expressly or impliedly forbids the relief which is sought." 5 U.S.C. § 702.
2 Defendants' argument against Plaintiffs' AP A claim lacks merit. The exception to
3 section 702 requires Defendants to identify a statute that both (1) grants consent to suit against
4 the United States (i.e., waives sovereign immunity) for the statutory violations alleged and (2)
5 forbids equitable relief. Id. No such statute exists.
6 Defendants offer four statutes as candidates. The first two statutes that Defendants rely
7 on with respect to the Wiretap Act and ECP A violations, 18 U.S.c. §§ 2520(a) and 2707(a), do
8 not grant consent to suit against the United States, so they do not meet the first requirement of
9 the exception. The third statute, section 2712, does grant consent to suit against the United
10 States, but it does not meet the second requirement because it does not forbid equitable relief.
11 Section 2712 provides that it is "the exclusive remedy against the United States for any claims
12 within the purview of this section." 18 U.S.c. § 2712(d) (emphasis added). The purview of
13 section 2712 is set forth in subsection (a) as "an action. . . against the United States to recover
14 money damages." Section 2712 sets the parameters regarding those damages claims, such as
15 requiring the claims to be in excess of $10,000 and making available litigation costs as an
16 additional remedy. 18 U.S.C. § 2712. Thus, only damages claims, and not equitable relief
17 claims, are "within the purview" of section 2712. Section 2712 therefore provides the exclusive
18 avenue for monetary relief and forbids any other claim for money damages, but does not forbid
19 equitable relief.
20 Finally, contrary to Defendants' argument, the Wiretap Act and EPCA are not similar to
21 the Quiet Title Act, which does preclude APA actions. In Block, discussed above, the Supreme
22 Cour addressed whether the Quiet Title Act met the terms of section 702' s exception to its
23 sovereign immunity waiver. The Quiet Title Act, while granting consent to suit, expressly
24 forbade the very relief the plaintiff in Block sought-a judgment awarding it title to a parcel of
25 real property in which the United States had first asserted title more than 12 years previously.
26 Block, 461 U.S. at 275 n.1, 286 n.22, n.23. Because the Quiet Title Act both granted consent to
27 suit and expressly forbade the relief the plaintiff sought, it satisfied the terms of the exception to
28 section 702. Id. at 286 n.22. By contrast, nothing in the Wiretap Act or ECP A forbids the
13
PLAINTIFFS' OPPOSITION TO GOVERNMENT DEFENDANTS' MOTION TO DISMISS AND FOR
442684.03 SUMMARY JUGMENT
CASE NO. C-08-4373- VRW
1 equitable relief Plaintiffs seek for violations of those statutes.
2 Nor do Defendants point to any legislative history or other evidence that Congress
3 intended to forbid equitable relief under the AP A for violations of the Wiretap Act and ECP A.
4 With respect to Plaintiffs' APA claim based on FISA violations, 50 U.S.C. § 1810 authorizes
5 damages claims against the United States but does not forbid equitable relief, and does not claim
6 to be the only available remedy. Nor does the Tucker Act support Defendants' contention that
7 section 1810 forbids equitable relief under the AP A. The Tucker Act provides a damages
8 remedy for contract claims against the United States. The Tucker Act and its predecessors have
9 been understood for over 150 years, since long before the AP A, to prohibit equitable relief for
10 contract claims against the United States; Congress stated that it intended this preexisting
11 understanding to continue when it enacted AP A section 702' s sovereign immunity waiver in
12 1976. United States v. King, 395 U.S. 1,3 (1969); North Side Lumber Co. v. Block, 753 F.2d
13 1482, 1485 (9th Cir. 1985).
14 When Congress enacted FISA in 1978, after section 702's enactment, it did not suggest
15 (as it did with the Tucker Act) that it intended the statutory limits ofFISA to be unenforceable by
16 the courts. To the contrary, Congress provided that FISA, the Wiretap Act, and ECPA are the
17 exclusive means by which electronic surveillance may be conducted. 18 U.S.c. § 2511 (2)(f); 50
18 U.S.C. § 1812(a); Al-Haramain, 564 F. Supp. 2d at 1116-17, 1121-23. Congress's command
19 that surveilance may only be conducted if it conforms with the narrow limitations of
those three
20 Acts would be ilusory if judicial review were unavailable to enjoin violations of
those Acts by
21 the Executive. See Al-Haramain, 564 F. Supp. 2d at 1121 ("When Congress acts to contravene
22 the president's authority, federal courts must give effect to what Congress has required.").
23
24
25
26
27
28
II. For purposes of Plaintiffs' claims, FISA preempts the
common-law state secrets privilege.
Defendants' invocation of the state secrets privilege cannot defeat any of
Plaintiffs'
claims. Congress's detailed, comprehensiveFISA protocol governing cour review of
surveilance-related evidence preempts the common-law state secrets privilege as to the materials
underlying Plaintiffs' claims here, and wil permit the Cour to evaluate all necessary evidence.
14
PLAINTIFFS' OPPOSITION TO GOVERNMENT DEFENDANTS' MOTION TO DISMISS AND FOR
SUMMARY JUGMENT
CASE NO. C-08-4373-VRW
442684.03
1 A. Where section 1806(1) applies, it preempts the common-law state secrets privilege.
2 As the Court correctly concluded in Al-Haramain, the FISA framework leaves no room
3 for the common-law state secrets privilege to cover materials related to electronic surveillance.
4 See 564 F. Supp. 2d at 1118-19; Gov't Br. at 24-25 (raising no new arguments against
5 preemption). Rather, 50 U.S.C. § 1806(f) clearly and comprehensively addresses the proper
6 evidentiary use of allegedly secret materials related to governent electronic sureillance,
7 preempting the state secrets privilege for all evidence to which section 1806(f)'s protocol
8 applies. Al-Haramain, 564 F. Supp. 2d at 1118-19.
9 FISA created a detailed statutory framework specifically designed to restrain abuses of
10 executive power and to balance legitimate national security interests with civil liberties in
11 matters related to surveillance. Id. at 1115-16. As the Court explained in detail in Al-Haramain,
12 section 1806(f) is part of a comprehensive regulatory program that "leaves no room in a case to
13 which section 1806(f) applies" for the common-law state secrets privilege. !d. at 1118-19.
14 Rather, section 1806(f) "is Congress's specific and detailed prescription for how courts should
15 handle claims by the governent that the disclosure of material relating to or derived from
16 electronic surveillance would harm national security." !d. at 1119. Indeed, it "is in effect a
17 codification" of the common law privilege for cases where section 1806(f) applies, "as modified
18 to reflect Congress's precise directive to the federal courts for the handling of materials and
19 information with purorted national security implications." Id. Accordingly, where it applies,
20 section 1806(f)'s protocol is mandatory-the courts "shall"conduct the review section 1806(f)
21 prescribes in cases within its scope. Id. at 1119.
22 Because section 1806(f)'s plain text directly and clearly addresses the same evidentiary
23 issue as the common-law state secrets privilege, its codified protocol for review of purportedly
24 secret materials related to electronic surveillance replaces the common-law state secrets privilege
25 for all evidence subject to section 1806(f).7 Id. at 1119 (holding that the usual state secrets
26 protocol "has no role where section 1806(f) applies"); 50 U.S.C. § 1806(f); Kasza v. Browner,
27
28
7 This result is correct for all the reasons stated in more detail in the Cour's Al-Haramain
decision.
15
PLAINTIFFS' OPPOSITION TO GOVERNMENT DEFENDANTS' MOTION TO DISMISS AND FOR
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CASE NO. C-08-4373-VRW
442684.03
442684.03
1 133 F.3d 1159, 1167 (9th Cir. 1998) (discussing preemption of
the common-law privilege). That
2 preemption also causes no constitutional concern, because the state secrets privilege is a
3 common-law evidentiary device, not an exclusive constitutional power of
the executive. Al-
4 Haramain, 564 F. Supp. 2d at 1120; Mohamed v. Jeppesen Dataplan, Inc., 563 F. 3d 992, 1005
5 (9th Cir. 2009); Al-Haramain v. Bush, 507 F.3d 1190, 1196 (9th Cir. 2007) ("Al-Haramain II")
6 ("The state secrets privilege is a common law evidentiary privilege"); see also s.E. C. v. Nacchio,
7 ' _ F. Supp. 2d~, 2009 WL 690306 (D. Colo. Mar. 13 2009) ("The State Secrets Privilege is a
8 common-law evidentiary privilege"). Rather, as this Court explained in Al-Haramain, Congress
9 has at least equal authority to regulate these matters, even though national security is at issue.
10 564 F. Supp. 2d at 1120-21. Congress exercised that authority by enacting FISA's section 1806
11 protocol-as it has done by enacting many other statutes affecting national security and
12 classified information-and the executive and judicial branches must respect the resulting
13 limitations on executive authority. Id. at 1121-22 (citing Youngstown Sheet & Tube Co. v.
14 Sawyer, 343 U. S. 579 (1952), and numerous statutes).
15 B.
16
17
FISA's section 1806(f) procedure applies to the evidence supporting all of Plaintiffs'
claims.
FISA's procedure for judicial review of surveillance-related evidence applies to all of
the
18
19
20
21
22
23
24
25
26
27
28
purportedly secret materials underlying Plaintiffs' claims here, and preempts the state secrets
privilege for all of those materials. See Al-Haramain, 564 F. Supp. 2d at 1119.
By its plain language, section 1806(f) and its preemptive effect apply in any kind of civil
or criminal litigation, whether claims are filed under FISA or any other law, when purportedly
secret materials related to electronic surveilance are at issue. Specifically, section 1806(f)'s
procedures apply "whenever any motion or request" is made by an aggrieved person "pursuant to
any other statute or rule of the United States or of any State. . . to discover or obtain. . .
materials relating to electronic sureilance."g 50 U.S.c. § 1806(f) (emphasis added). This
g As alleged in detail in the Complaint, Plaintiffs are aggreved parties under section 1806(f). As
in the Hepting case, where the Court found that the plaintiffs had adequately alleged standing,
Plaintiffs allege a "dragnet" that collected Plaintiffs' communcations and records along with
those of many other AT&T customers. See Hepting v. AT&T Corp., 439 F. Supp. 2d at 974, at
1000 (N.D. CaI. 2006); Complaint ~~ 52-82. See also Oct. 16,2008 Rule 1006 Summary of
16
PLAINTIFFS' OPPOSITION TO GOVERNENT DEFENDANTS' MOTION TO DISMISS AND FOR
SUMMARY JUGMENT
CASE NO. C-08-4373-VRW
1 language "addresses a range of circumstances in which information derived from electronic
2 surveillance might become relevant to judicial proceedings," not merely the narrow categories of
3 proceedings Defendants suggest. Al-Haramain, 564 F. Supp. 2d at 1119. Thus, as this Court
4 concluded in Al-Hciamain, "section 1806(f) is not limited to criminal proceedings, but may also
5 be invoked in civil actions." !d. at 1133; see also H.R. Conf. Rep. No. 95-1720 at 32 (1978),
6 reprinted in 1978 U.S.C.C.A.N. 4048, 4061 (stating section 1806(f) "is appropriate for
7 determining the lawfulness of electronic surveillance in both criminal and civil cases"). In
8 addition, Congress has further confirmed that section 1806(f)'s procedures apply broadly to
9 sureillance-related evidence in any type of proceeding, by expressly acknowledging the
10 "exclusive" applicability of section 1806(f)'s procedures in actions under other statutes, and
11 declining to create additional, separate review procedures. See 18 US.C. § 2712(b)(4)
12 (expressly confirming that in actions against the United States under section 2712, including
13 claims under ECPA and the Wiretap Act, section 1806(f)'s procedures "shall be the exclusive
14 means" for reviewing materials subject to section 1806(£)).
15 As in Hepting, which involved the same underlying facts as this case, the gravamen of all
16 of Plaintiffs' claims here is that the governent and private telecommunications companies like
17 AT&T have created an illegal, comprehensive "dragnet that collects the content and records of
18 (AT&T's) customers' communications." Hepting, 439F. Supp. 2d at 978, 1000. See, e.g.,
19 Complaint irir 60-97 (generally describing the same ilegal surveilance scheme), 143-167
20 (specifically alleging "electronic surveilance" of Plaintiffs' communications in violation of
21 FISA). All of Plaintiffs' claims are related to that ilegal surveillance dragnet, as is all of the
22 purportedly secret evidence that will be before the Court. For example, all materials concerning
23 the governent's collection of communications records are at a minimum "materials relating to
24 electronic surveilance" under section 1806(f) because those records are used as part of the
25 governent's targeting process to decide which communications wil receive additional scrutiny
26 from governent analysts. See Complaint ir 11. Thus, section 1806(f)'s protocol preempting the
27
28
442684.03
Evidence (MDL No. 1791, Docket No. 481; Exh. A to Plaintiffs' accompanying Rule 56(f)
Declaration) (summarizing voluminous public evidence supporting Plaintiffs' claims).
17
PLAINTIFFS' OPPOSITION TO GOVERNENT DEFENDANTS' MOTION TO DISMISS AND FOR
SUMMARY JUDGMENT
CASE NO. C-08-4373-VRW
1 state secrets privilege permits-and requires-the Court to evaluate the surveillance-related
2 materials underlying Plaintiffs' factual allegations, and all of the causes of action arising out of
3 them.
4 Because section 1806(f) preempts the state secrets privilege and expressly authorizes the
5 Court to review the surveillance-related materials at issue in this case, with appropriate security
6 protections, Plaintiffs' claims cannot be dismissed at any stage on the basis of the state secrets
7 privilege. More fundamentally, no evidence can be excluded from this litigation at this time on
8 the basis of the state secrets privilege. See infra. Instead, section 1806(f)'s protocol wil permit
9 the Court to evaluate whatever evidence is necessary to decide Plaintiffs' claims on their merits,
10 at the appropriate time.
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Even if the state secrets privilege were not preempted, this case could not be
dismissed based on the privilege.
Because section 1806(f) preempts the state secrets privilege, Defendants' argument that
III.
the state secrets privilege requires dismissal fails and the Cour need not consider it further.
Even if section 1806(f) did not preempt the state secrets privilege, however, the state secrets
privilege would stil provide no basis for dismissing this action, as the Ninth Circuit recently
confirmed in Mohamed, 563 F.3d at 1004.
A. The narrow "very subject matter" litigation bar is limited to secret agreements
between a plaintiff and the executive, and does not apply here.
19 In Mohamed, the Ninth Circuit reaffirmed that threshold dismissal of an action because
20 its "very subject matter" is a state secret is permissible only ifthe case is based on a secret
21 agreement between the plaintiff and the governent:
22 (I)f a lawsuit is not predicated on the existence of a secret agreement between the
plaintiff and the governent, Totten (v. United States, 92 U.S. 105 (1875)) does
23 not apply and the subject matter of the suit is not a state secret.
24 563 F.3d at 1004. Here, there is no agreement, secret or otherwise, between Plaintiffs and the
25 governent. See Hepting, 439 F. Supp. 2d at 991 ("(P)laintiffs made no agreement with the
26 governent and are not bound by any implied covenant of secrecy.") Accordingly, the subject
27 matter of this suit is not a state secret and the suit may not be dismissed at the outset.
28 Mohamed was a suit brought against a governent contractor by alleged victims of the
18
PLAINTIFFS' OPPOSITION TO GOVERNENT DEFENDANTS' MOTION TO DISMISS AND FOR442684.03 SUMMARY JUGMENT
CASE NO. C-08-4373-VRW
1 CIA's extraordinary rendition program. "(T)he governent argue(d)," as it does here, "that state
2 secrets form the subject matter of a lawsuit, and therefore require dismissal, any time a complaint
3 contains allegations, the truth or falsity of which has been classified as secret by a governent
4 officiaL." Mohamed, 563 F.3d at 1003. The Ninth Circuit categorically rejected this argument:
5 This sweeping characterization of the "very subject matter" bar has no logical
limit-it would apply equally to suits by U.S. citizens, not just foreign nationals;
6 and to secret conduct committed on U.S. soil, not just abroad. According to the
governent's theory, the Judiciary should effectively cordon off all secret
7 governent actions from judicial scrutiny, immunizing the CIA and its partners
from the demands and limits ofthe law.
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Id. The Ninth Circuit held that, instead of threshold dismissal, the proper course is for a court to
consider assertions ofthe state secrets privilege on an item-by-item basis under Reynolds:
"Unlike Totten, the Reynolds framework accommodates these division-of-powers concerns by
upholding the President's secrecy interests without categorically immunizing the CIA or its
partners from judicial scrutiny." Id. at 1004.
The exact concerns raised by the Ninth Circuit exist here-the governent is seeking
dismissal of a suit brought by United States citizens about secret conduct on United States soil
and seeks to immunize itself from the "demands and limits of the law." See id. at 1003. As in
Mohamed, application ofthe Reynolds framework-if the Court were to find it not preempted
here by section 1806( f)-is the only way to ensure that the secrecy interests of the President are
upheld without categorically immunizing the governent from judicial scrutiny.9 Id.
B. Defendants cannot dismiss this suit based on their speculative contention that future
state secrets assertions wil prevent presentation of evidence needed for Plaintiffs'
prima facie case or Defendants' defenses.
Mohamed also disposed of Defendants' argument that threshold dismissal is appropriate
because Defendants predict that Plaintiffs canot establish standing or other elements of their
prima facie case, or that Defendants cannot defend themselves, without using evidence that is
protected by the state secrets privilege.
26 9 Even without relying on Mohamed, this Court's Hepting decision confirms that the very subject
matter of this action is not a state secret. This action and Hepting arise from a common factual
27 basis and share a common subject matter. This Court already held in Hepting that the very
subject matter is not a state secret. Hepting, 439 F. Supp. 2d at 994; see also Al Harimain II, 507
28 F.3d at 1201. Because Hepting and this action share a common subject matter, the specific
19
PLAINTIFFS' OPPOSITION TO GOVERNENT DEFENDANTS' MOTION TO DISMISS AND FOR
442684.03 SUMMARY JUDGMENT
CASE NO. C-08-4373-VRW
442684.03
1 The Ninth Circuit firmly rejected the troubling proposition that courts may anticipatorily
2 dismiss cases by applying the state secrets privilege prior to any concrete evidentiary dispute
3 over a specific item of evidence: "(N)either the Federal Rules nor Reynolds would permit us to
4 dismiss this case at the pleadings stage on the basis of an evidentiary privilege that must be
5 invoked during discovery or at trial." Mohamed, 563 F.3d at 1009 (emphases in original).
6 Instead, the Ninth Circuit articulated a clear framework for evaluating state secret privilege
7 claims, grounded in fundamental Aricle III and separation-of-powers principles. It held that.
8 courts-not the Executive Branch-must exercise "control over the evidence in a case." Id. at
9 1001 (quoting Reynolds, 345 U.S. at 9-10); Mohamed, 563 F.3d. at 1004 ("Separation-of-powers
1 0 concerns take on an especially important role in the context of secret Executive conduct.").
11 Under this framework, before deciding whether or how the state secrets privilege applies to a
12 particular item of evidence, the court must await:
13 (1) an actual request for discovery of specific evidence,
(2) an explanation from plaintiffs of their need for the evidence, and
14 (3) a formal invocation of the privilege by the governent with respect to that
evidence, explaining why it must remain confidentiaL.
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Id. at 1008-1009 (citations omitted). "(R)ather than foreclosing litigation altogether at the
outset," the court then "excis(es) secret evidence on an item-by-item basis." Id. at 1003-1004.
Previously, this Court reached the same conclusion in Hepting. There, the Court held
that "it would be premature to conclude that the (state secrets) privilege wil bar evidence
necessary for plaintiffs' primafacze case or AT&T's defense," Hepting, 439 F. Supp. 2d at 994,
and rejected the argument that "plaintiffs' claims would necessarily lack the factual support
required to withstand a future jurisdictional challenge based on lack of standing," id. at 1001.
In short, a court may not dismiss a lawsuit based on the governent's presumption that
its future assertions of the state secrets privilege in response to as-yet unown discovery
requests wil leave the plaintiffs unable to establish their claims or the defendants unable to
prove their defenses. In Mohamed, for example, the governent argued that victims of
the
CIA's "extraordinary rendition" program could not maintain their lawsuit because the plaintiffs
subject matter of this action also is not a state secret.
20
PLAINTIFFS' OPPOSITION TO GOVERNENT DEFENDANTS' MOTION TO DISMISS AND FOR
SUMMARY JUGMENT
CASE NO. C-08-4373-VRW
1 could not establish a prima facie case, or the defendants could not defend themselves, without
2 using privileged evidence. The Court held:
3 We are unpersuaded because acceding to the governent's request would require
us to ignore well-established principles of civil procedure. At this stage of
the
4 litigation we simply cannot prospectively evaluate hypothetical claims of
privilege that the government has not yet raised and the district court has not yet
5 considered.
6 Mohamed, 563 F.3d at 1008; accord Al-Haramain II, 507 F.3d at 1203 ("Simply saying 'military
7 secret,' 'national security' or 'terrorist threat' or invoking an ethereal fear that disclosure wil
8 threaten our nation is insufficient to support the privilege."); id. at 1201 (explaining that "the
9 decision on the state secrets privilege may need to await preliminary discovery").
10
1 0 Mohamed also laid to rest an argument that permeates the governent's motions to
11 dismiss in both this case and in Hepting. In Mohamed, as here, the governent argued that the
12 state secrets privilege protected information rather than evidence. The Mohamed Court rejected
13 this argument:
14 Outside of the extremely narrow Totten context, the state secrets privilege has
never applied to prevent parties from litigating the trth or falsity of allegations,
15 or facts, or information simply because the governent regards the truth or falsity
of the allegations to be secret. . . According to Reynolds, therefore, the question is
16 not which facts are secret and may not be alleged and put to the jury's
consideration for a verdict; it is only which evidence is secret and may not be
17 disclosed in the course of a public triaL. ('i) . . . (T)he privilege applies to prevent
discovery of the evidence itself and not litigation of the truth or falsity ofthe
18 information that might be contained within it.
19 563 F.3d at 1005 (emphases in original). Amongother things, this means that the state secrets
20 privilege canot be "invoked to prevent a litigant from persuading a jury of the truth or falsity of
21 an allegation by reference to non-privileged evidence, regardless whether privileged evidence
22 might also be probative." Id.
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10 Al-Haramain II also helps refute the circular claim that the Court must dismiss based on lack
of standing before it reviews critical evidence that could establish standing. In Al-Haramain II,
the Ninth Circuit noted that it "read Reynolds as requiring in camera review" of the critical
evidence in Al-Haramain II required to establish standing (the Sealed Document). The Ninth
Circuit relied on "AI-Haramain's admittedly substantial need for the document to establish its
case." Id. at 1203 (citation omitted). To the extent that Defendants claim that Plaintiffs need
secret evidence to establish standing (which Plaintiffs deny), Plaintiffs would have a similar
"substantial need" for that evidence here.
442684.03
21
PLAINTIFFS' OPPOSITION TO GOVERNENT DEFENDANTS' MOTION TO DISMISS AND FOR
SUMMARY JUGMENT
CASE NO. C-08-4373-VRW
1 Under Mohamed, therefore, Defendants' invocation of the state secrets privilege here is
2 defective for two reasons: first, because Defendants invoke the privilege prematurely in advance
3 of any discovery request by Plaintiffs, and, second, because they invoke it by contending that
4 certain facts and information are secret and cannot be litigated, rather than contending that
5 specific items of evidence are secret.
6 As to the first flaw, Mohamed makes clear that Defendants must await specific discovery
7 requests from Plaintiffs. Only after those requests are presented, and then only if Defendants
8 assert the state secrets privilege with respect to specific items of evidence responsive to
9 Plaintiffs' requests, may this Court decide whether the privilege bars admission of a specific item
10 of evidence.
11 As to the second flaw, each of Defendants' specific assertions of privilege is improperly
12 directed at facts and information rather than specific items of evidence. For example,
13 Defendants improperly attempt to assert the state secrets privilege over the following:
14 B. Information that may tend to confirm or deny whether the plaintiffs have been
subject to any alleged NSA intelligence activity that may be at issue in this
15 matter; and
16 C. Any information concerning NSA intelligence activities, sources or methods
that may relate to or be necessary to litigate plaintiffs' allegations, including
17 allegations that the NSA, with the assistance of telecommunications carrers such
as AT&T, indiscriminately intercepts the content of communications and also
18 collects the communications of millions of Americans. . . includ(ing) but not
limited to:
19
(i) Information concerning the scope and operation of the now inoperative
20 "Terrorist Surveillance Program," . . .
21 (ii) Information concerning whether or not the NSA obtained from
telecommunications companies such as AT&T communication transactional
22 records as alleged in the Complaint. .. ;
23 (iii) Information that may tend to confirm or deny whether AT&T (and to
the extent relevant or necessary, any other telecommunications carier), has
24 provided assistance to the NSA in connection with any alleged activity."
25 Dir. ofNat'1 InteL. Blair's Public DecI. (Docket No. 18-3) irir 11, 13-18; Bonnani Public DecI.
26 (Docket No. 18-4), irir 10-16 ("supporting" the DNI's state secrets privilege assertion). These
27 conclusory attempts to claim privilege over all facts and information needed for Plaintiffs to
28 succeed in their claims (whether secret or not), rather than over specific items of evidence
22
PLAINTIFFS' OPPOSITION TO GOVERNMENT DEFENDANTS' MOTION TO DISMISS AND FOR /442684.03 SUMMARY JUGMENT
CASE NO. C-08-4373- VRW
1 requested by Plaintiffs, are inadequate under Mohamed.
2 Finally, the Ninth Circuit made clear that threshold dismissal is inappropriate even if the
3 governent successfully establishes that particular items of evidence are covered by the state
4 secrets privilege. A court cannot "determine whether the parties will be able to establish their
5 cases without use of privileged evidence without also knowing what non-privileged evidence
8 "deciding the impact of the governent's assertion of the state secrets privilege" before the
9 record is "adequately developed" puts "the cart before the horse").
10 This holding is especially applicable here because four of these same Plaintiffs have
11 already presented a large and compelling body of undisputed, unprivileged evidence about the
12 surveillance dragnets in Hepting and in the related Multi-District Litigation, In re National
13 Security Agency Telecommunication Records Litigation (Case No. M:06-cv-01791-VRW), the
14 existence of which this Court may judicially notice.ll Thus, even if Defendants' invocation of
15 .. the state secrets privilege were not premature and defective, in addition to being preempted here
16 by 50 U.S.C. §1806(f), it would stil provide no basis for dismissal ofthis action.
17 II
18 II
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11 Additionally, Plaintiffs file herewith a Declaration pursuant to Fed. R. Civ. Pro. 56(f) outlining
additional discovery that they would conduct which would support their Opposition should
Defendants' motion be deemed a motion for summary judgment.
23
PLAINTIFFS' OPPOSITION TO GOVERNENT DEFENDANTS' MOTION TO DISMISS AND FOR
SUMMARY JUGMENT
CASE NO. C-08-4373-VRW
442684.03
1 CONCLUSION
2 For all the foregoing reasons, Defendants' Motion to Dismiss should be denied.
3
4 Dated: June 3, 2009
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Respectfully submitted,
By: Isl
ELECTRONIC FRONTIER FOUNATION
CINY COHN (SBN 145997)
LEE TIEN (SBN 148216)
KURT OPSAHL (SBN 191303)
KEVIN S. BANKSTON (SBN 217026)
JAMES S. TYRE (SBN 083117)
454 Shotwell Street
San Francisco, California 94110
Telephone: (415) 436-9333
Facsimile: (415) 436-9993
KEKER & VAN NEST, LLP
RACHAEL E. MENY - #178514
PAULA L. BLIZZAR - #207920
MICHAEL S. KWU - #198945
AUDREY WALTON-HADLOCK - #250574
710 Sansome Street
San Francisco, California 94111-1704
Telephone: (415) 391-5400
Facsimile: (415) 397-7188
RICHAR R. WIEBE (SBN 121156)
LAW OFFICE OF RICHAR R. WIEBE
425 California Street, Suite 2025
San Francisco, California 94104
Telephone: (415) 433-3200
Facsimile: (415) 433-6382
THOMAS E. MOORE III (SBN 115107)
THE MOORE LAW GROUP
228 Hamilton Avenue, 3rd Floor
Palo Alto, California 94301
Telephone: (650) 798-5352
Facsimile: (650) 798-5001
Attorneys for Plaintiffs
442684.03
24
PLAINTIFFS' OPPOSITION TO GOVERNENT DEFENDANTS' MOTION TO DISMISS AND FOR
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CASE NO. C-08-4373-VRW
