Joe McMurray, et al v. Verizon Communications Inc., et al

Filing

FILED OPINION (HARRY PREGERSON, MICHAEL DALY HAWKINS and M. MARGARET MCKEOWN) AFFIRMED. Judge: HP , Judge: MDH , Judge: MMM Authoring. FILED AND ENTERED JUDGMENT. [8014742]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: NATIONAL SECURITY AGENCY
TELECOMMUNICATIONS RECORDS
LITIGATION,
JOE MCMURRAY, REV.; CHARLENE
MANN, REV.; MICHAEL REUSCH,
DR.; TRUDY BOND, DR.; ROBERT
NEWBY, PROF.; SERGE POPPER;
THOMAS S. DWYER; JAMES VANALSTINE; MICHELE ROSEN;
THEODORE JONATHAN MORRIS;
SHARON ANN MORRIS; HARRIS
SONDAK; MERRILYN ROME; BRAD
MARSTON; GREG L. SMITH;
MICHAEL BROOKS; MICHAEL S.
ROTHMEL; ILENE PRUETT; ANTHONY
BARTELEMY; LINDA GETTIER;
STEPHANIE MEKET; THOMAS
MICHAEL FAIN; BARBARA LANGER;
PAM HADDON; VERN HADDON;
DONALD HERRON; RAY ANDERSON;
COLLIN BABER; MARK BAKER; JOHN
BARRETT,

21483

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No. 09-17133
D.C. Nos.
13:09-cv-00131VRW
M:06-cv-01791VRW
OPINION

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MCMURRAY v. VERIZON COMMUNICATIONS

WILLIAM BETZ; FRAN BLAMER;
SHANE AND KRISTEN BRINK;
MICHAEL BROOKS; PAUL BRUNEY;
PETER CATIZONE; STEVE
CHRISTIANSON; JOHN CLARK;
KINGLSEY CLARK; THOMAS M.
CLEAVER; PETER B. COLLINS;
KRIS AND MARK COSTA; JULIE
DAVIS; SHARON L. DAVIS; DIANE
GAVLINSKI; TONI DIDONA; THERESA
R. DUFFY; SHAWN FITZGIBBONS;
JOHN FITZPATRICK; JENNIFER FLORIO;
MARGARET FRANKLIN; DAWN
FURLER; C. GARLFO; JOSEPHN
GEHRING; JANE AND MARK GENTIEYOUD; LINDA J. AND G. LAWRENCE
GETTIER; JIT GILL; MIKE GILMORE;
JAYSON GLEASON; MARC
GOLDSTONE; TODD GRAFF; JANET
GRANJA; SUSAN GROSSMAN;
STEPHANIE GUSTAVE AND KEVIN
SHAWLER; DON AND DONNA
HAWKINGS; JOSE V. HEINERT;
LAMAR HENDERSON; CAROLYN R.
AND DOUGLAS S. HENSLEY; JENNIFER
HONTZ; JOYCE JACKSON; ANDREW
JAFFE; RANDEL JAMES; MICHAEL
JOHNSON; DIANE JULIANO; FAY
KAISER; RAJENDRAM KRISHNAN;
MICHAEL LAVO; FRED LEAK; KEN
LEHA; BEN LINDSEY; LISA
LOCKWOOD; NANCY K. LOREY AND
GERARD P. CLERKIN; MICHAEL T.
LYDA; ELEANOR M. LYNN; ESQ.;

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MCMURRAY v. VERIZON COMMUNICATIONS

TERRY MANCOUR; JON PAUL
MCCLELLAN; ALICIA MCCOLLUM;
JAMES MCGRATTAN; CLYDE
MICHAEL MORGAN; MS. LODGE;
SHERI A. MUELLER; FRAN NOBILE;
CHRIS VON OBENAUER; DAEDRIA
FANNER-PAELLMAN; DAN PATTON;
RAY PENA; CONSTANCE PHILLIPS;
MARK PLANTE; JEREMY PUHLMAN;
MARTIN RAZO; DANIEL REIMAN;
MARK RICHARDS; LINDA RITHKIS;
WILLIAM ROBINETTE; FRED AND
DARLENE ROGERS; KATHLEEN
ROGERS; WILLIAM J. ROMANSKY;
BRONSON ROSIER; JOSH SEEFRIED;
ANNA F. SHALLENBERGER; ROYCE
SHEPARD; ROBERT SIDEN; GREGORY
L. SMITH; CHRISTIAN STALBERG;
MICHAEL L. STEPHAN; ROBERT
STEWART; DONNA A. STONE;
PAUL AND REGINA SUNDBERG;
WILLIAM R. SWEENEY; JR.; DAVID
TAYLOR; APRIL TIPE; ALLEN T.
TRADER; III; BARRY W. TRIBBLE;
FRED TRINKOFF; THOMAS VILAR;
VICKIE VOTAW; LEON DWIGHT
WALLACE; ACHIENG WARAMBO AND
ULRICH GEISTER; DAVID AND BETH
WHITE; JANE WINSTON; KEVIN

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WRIGHT; JOEL AINGER; CAROL
COSE; DEBORAH DOUGHERTY; JAMES
FLYNN; IRENE KING; PAUL KRAFT;
GINA DEMIRANDA; CATALINA R.
THOMPSON; MARY LEAH WEISS;
ELIZABETH T. ARNONE; ELEANOR
LYNN; JAY H. ROWELL; DANIE
REIMANN; VIVIAN PHILLIPS; JEFFREY
G. MARSOCCI; BRIDGET IRVING;
JAMES HALL; JOHN MCINTYRE; AND
AMIDAX TRADING Group, on Behalf
of Themselves and All Others
Similarly Situated,
Plaintiffs-Appellants,
v.
VERIZON COMMUNICATIONS, INC.;
BELLSOUTH CORPORATION; AT&T
CORPORATION; AT&T INC.; GEORGE
W. BUSH, individually in his
executive capacity, and as
representative of the United States
of America; NATIONAL SECURITY
AGENCY; UNITED STATES OF
AMERICA; BARACK H. OBAMA,
Defendants-Appellees.

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Appeal from the United States District Court
for the Northern District of California
Vaughn R. Walker, District Judge, Presiding
Argued and Submitted
August 31, 2011—Seattle, Washington
Filed December 29, 2011

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21487

Before: Harry Pregerson, Michael Daly Hawkins, and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge McKeown

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COUNSEL
Steven Edward Schwarz, The Law Offices of Steven E.
Schwarz, Chicago, Illinois; Bruce Ira Afran, Bruce I. Afran,
Attorney at Law, Princeton, New Jersey; Carl Mayer, Mayer
Law Group LLC, Princeton, New Jersey, for the plaintiffappellants.
Brian Matthew Boynton, Wilmer Cutler Pickering Hale and
Dorr LLP, Washington, DC; Michael Kellogg, Kellogg,
Huber, Hansen, Todd, Evans & Figel, P.L.L.C., Washington,
DC; Bradford Allan Berenson, Sidley Austin LLP, Washington, DC; Eric Dean McArthur, Sidley Austin LLP, Washington, DC; Eric Shumsky, Sidley Austin LLP, Washington, DC;

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Bruce A. Ericson, Pillsbury Winthrop Shaw Pittman LLP, San
Francisco, California; Kevin Murray Fong, Pillsbury Winthrop Shaw Pittman LLP, San Francisco, California, for the
defendants-appellees.
Thomas Mark Bondy, U.S. Department of Justice, Washington, DC; Anthony Joseph Coppolino, U.S. Department of Justice,
Washington,
DC;
for
the
government
defendants-appellees.

OPINION
McKEOWN, Circuit Judge:
Joe McMurray and other residential telephone and internet
customers (collectively “McMurray”) appeal from the district
court’s dismissal of their complaint against government officials and a group of telecommunications companies. McMurray challenges section 802 of the Foreign Intelligence
Surveillance Act (“FISA”) as an unconstitutional taking under
the Fifth Amendment. Section 802 allows the U.S. Attorney
General to certify that a telecommunications company provided assistance at the behest of the government in connection
with investigation of terrorism, thereby triggering immunity
from suit for that company. McMurray rests his takings claim
on the theory that application of § 802 requires dismissal of
his case and thereby negates his causes of action under various federal statutes. We affirm the district court’s dismissal of
McMurray’s Takings Clause claim for lack of jurisdiction.
BACKGROUND
In 2005, the news media reported that President Bush, in
the wake of the September 11, 2001 terrorist attacks, ordered
the National Security Agency (“NSA”) to conduct warrantless
eavesdropping and the NSA obtained the assistance of major

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telecommunications companies to do so. McMurray and
numerous other customers filed suits against telecommunications companies and government officials challenging the
warrantless eavesdropping. On July 7, 2008, at least partly in
response to these suits, Congress enacted the FISA Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2435
(“FISAA”), codified at 50 U.S.C. § 1885a. Of relevance here
is FISA section 802, a provision added by FISAA, that renders telecommunications companies immune from suit if and
when the Attorney General of the United States certifies certain facts to the appropriate United States district court.
McMurray filed a complaint in the Southern District of
New York in July 2008; he alleged that section 802 represents
an unconstitutional taking, violates the doctrine of separation
of powers, and abridges his right to due process, and sought
declaratory and injunctive relief. The case was transferred to
the Northern District of California in January 2009 as a “tagalong action” to a multidistrict litigation (“MDL”) matter
stemming from the challenges to the NSA’s warrantless
eavesdropping. Soon after, the United States and the telecommunications companies filed motions to dismiss.
The district court dismissed the complaint on three
grounds: (1) the court “lack[ed] jurisdiction to address the
merits of [the] takings claim [because] Congress has provided
a means for paying compensation for any taking that might
have occurred,” (2) “a Takings Clause claim would not in any
event lie against the telecommunications companies because
they are not governmental entities and therefore cannot effect
an actionable taking,”; and (3) McMurray has “no
constitutionally-protected property right in [his] alleged cause
of action” because “[i]t is well-established that no property
right vests in a cause of action until a final, unreviewable
judgment is obtained.”
In briefing on appeal, McMurray argued only his Takings
Clause claim and incorporated by reference the constitutional

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arguments made in Hepting v. AT&T, a companion appeal.
Hepting v. AT&T, No. 09-16676. Ordinarily we do not permit
parties to incorporate by reference briefs in other cases.1 Here,
however, the cases have followed a parallel path through the
MDL process, so in this rare circumstance we accept the
incorporation. McMurray’s other constitutional claims were
fully briefed and argued in the Hepting appeal and are disposed of in the contemporaneously filed opinion Hepting v.
AT&T, No. 09-16676 (9th Cir. filed December 29, 2011).
ANALYSIS
[1] Although McMurray’s Takings Clause claim is a novel
approach to application of section 802, ultimately it is misguided. The Takings Clause provides that “private property
[shall not] be taken for public use, without just compensation.” U.S. Const. amend. V. In this suit McMurray seeks
equitable relief rather than damages. However, as the
Supreme Court wrote in Ruckelshaus v. Monsanto Company,
under the Takings Clause, “Equitable relief is not available to
enjoin an alleged taking of private property for a public use,
duly authorized by law, when a suit for compensation can be
brought against the sovereign subsequent to the taking.” 467
U.S. 986, 1016 (1984) (citing Larson v. Domestic & Foreign
Commerce Corp., 337 U.S. 682, 697, n.18 (1949)).
[2] The Tucker Act—the statutory mechanism for pursuing
damages against the United States—authorizes “a suit for
compensation . . . subsequent to the taking” in the United
States Court of Federal Claims, and in limited circumstances,
the district courts. 28 U.S.C. §§ 1346, 1491. The Tucker Act
1

See Circuit Rule 28-1(b) (“Parties must not . . . incorporate by reference briefs submitted to . . . this Court in a prior appeal, or refer this Court
to such briefs for arguments on the merits of the appeal.”); see also United
States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992) (noting court “will not
ordinarily consider matters on appeal that are not specifically and distinctly argued in appellant’s opening brief”) (quoting Miller v. Fairchild
Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986)).

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remedy for compensation is generally available unless Congress has explicitly precluded its application. A statute must
“reflect an unambiguous intention to withdraw the Tucker Act
remedy” before the courts will hold that it has done so. Ruckelshaus, 467 U.S. at 1019. No such intent is evident here.
[3] Following the dictate of Ruckelshaus, we held that a
“takings claim is premature until [appellants] have availed
themselves of the process provided by the Tucker Act.” Bay
View Inc. v. AHTNA, Inc., 105 F.3d 1281, 1285 (9th Cir.
1997) (internal alteration and quotation marks omitted). Bay
View determines the outcome of McMurray’s appeal. In Bay
View we explained:
[T]he government need not provide immediate compensation at the time of the taking; it must simply
provide an adequate process for obtaining compensation.
The federal government has provided such a compensation process by consenting to suit in the United
States Court of Federal Claims under the Tucker
Act. 28 U.S.C. § 1491(a)(1). . . . The critical question in a takings case, therefore, is whether a Tucker
Act remedy is available for claims arising out of takings pursuant to an act of Congress.
Id. (internal alteration, quotation marks, and citations omitted). Bay View continued: “The simple fact is that we have no
jurisdiction to address the merits of takings claims where
Congress has provided a means for paying compensation for
any taking that might have occurred.” Id. The Tucker Act is
not merely “a jurisdictional hurdle against the payment of
damages”; it also serves as “an impediment to equitable relief.
. . . Because a compensation remedy is available, any taking
that may have occurred simply cannot violate the takings
clause.” Id. at 1286. Bay View could hardly be clearer precedent for the district court’s determination that it lacked juris-

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diction over McMurray’s takings claim. McMurray failed to
seek just compensation from the Court of Federal Claims, and
this failure was fatal to his case.
[4] Not surprisingly, our sister circuits have come to similar conclusions:
A takings claim is not ripe until (1) the relevant governmental unit has reached a final decision as to how
the regulation will be applied to the landowner, and
(2) the plaintiff has sought compensation for the
alleged taking through whatever adequate procedures the state provides.
Severance v. Patterson, 566 F.3d 490, 496 (5th Cir. 2009)
(citing Williamson County Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 186, 194 (1985)); see also Alto
Eldorado P’ship v. County of Santa Fe, 634 F.3d 1170, 1174
(10th Cir. 2011) (restating the holding in Williamson); Peters
v. Clifton, 498 F.3d 727, 731-32 (7th Cir. 2007) (same).
McMurray argues in passing that the district court has concurrent jurisdiction for civil actions against the United States
in which the damages claims do not exceed $10,000 under the
Tucker Act. 28 U.S.C. § 1346 (2011). This argument does not
resolve the jurisdictional problem. As McMurray himself
points out, his “case demands no monetary damages from any
party.” We take him at his word.
CONCLUSION
[5] The district court correctly dismissed McMurray’s
complaint for lack of jurisdiction. Consequently we need not
reach the merits of his Takings Clause claim.
AFFIRMED.