Shubert et al v. Bush et al

Filing 81

NOTICE OF QUESTIONS FOR HEARING. Signed by Judge Jeffrey S. White on December 12, 2012. (jswlc2, COURT STAFF) (Filed on 12/12/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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CAROLYN JEWEL, ET AL.,

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For the Northern District of California

United States District Court

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Plaintiffs,

No. C 08-04373 JSW

v.
NATIONAL SECURITY AGENCY, ET AL.,

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Defendants.

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No. C 07-00693 JSW
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VIRGINIA SHUBERT, ET AL.,

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Plaintiffs,

NOTICE OF QUESTIONS FOR
HEARING

v.
BARACK OBAMA, ET AL.,
Defendants.
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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD, PLEASE TAKE

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NOTICE OF THE FOLLOWING QUESTIONS FOR THE HEARING SCHEDULED ON

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DECEMBER 14, 2012 AT 9:00 A.M.:

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The Court has reviewed the parties’ papers and, thus, does not wish to hear the parties

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reargue matters addressed in those pleadings. If the parties intend to rely on authorities not

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cited in their briefs, they are ORDERED to notify the Court and opposing counsel of these

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authorities reasonably in advance of the hearing and to submit copies as soon as possible

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directly to chambers and to make copies available at the hearing. If the parties submit such

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additional authorities, they are ORDERED to submit the citations to the authorities only, with

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reference to pin cites and without argument or additional briefing. Cf. N.D. Civil Local Rule 7-

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3(d). The parties will be given the opportunity at oral argument to explain their reliance on

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such authority.

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The parties shall address the following questions:
1.

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a.

On what authority do Defendants argue the Court should reverse the decision by
this district court finding that FISA preempts the state secrets privilege?

b.

Does the Ninth Circuit’s decision not to review the district court’s finding of
preemption have any persuasive authority? See Al-Haramain Islamic
Foundation, Inc. v. Obama, 690 F.3d 1089, 1091 (9th Cir. 2012).

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For the Northern District of California

United States District Court

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In Al-Haramain Islamic Foundation, Inc. v. Bush, the Ninth Circuit specifically
remanded to the district court “to consider whether FISA preempts the state secrets
privilege and for any proceedings collateral to that determination.” 507 F.3d 1190, 1206
(9th Cir. 2007). This district court in In re National Security Agency
Telecommunications Records Litigation, held that FISA does preempt the state secrets
privilege. 564 F. Supp. 2d 1109 (N.D. Cal. 2008). In Mohamed v. Jeppesen Dataplan,
Inc., the Ninth Circuit, referencing the remand in Al-Haramain, found that “Congress
presumably possesses the power to restrict application of the state secrets privilege in
the referral proceeding.” 614 F.3d 1070, 1092 n.15 (9th Cir. 2010).

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2.

Does the government’s public disclosure of material information regarding the very
existence of a warrantless surveillance program, including its denial in this matter of the
allegations of domestic surveillance (Public DNI Declaration at ¶ 24; Public NSA
Declaration at ¶ 18), preclude a finding regarding the existence of the program, and
therefore the subject matter of this action, is barred entirely by the state secrets
privilege? See Al-Haramain, 507 F.3d at 1201. What specific cites in the voluminous
record submitted by Plaintiffs reference the government’s public disclosures regarding
solely domestic surveillance?

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3.

Does the state secrets privilege bar Plaintiffs’ constitutional claims?

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4.

Assuming the case is not dismissed at this procedural stage, what are the practical
procedures that the Court should follow to conduct discovery and make findings of fact?
Considering the procedural context at summary judgment, in addition to the public and
under seal submissions already made by Defendants, what additional evidence could the
government provide that would affect the Court’s analysis of the underlying allegations
of liability?

5.

How can the Court grant or deny relief, thereby confirming or rejecting Plaintiffs’
factual allegations regarding surveillance, without imperiling the national security
interests identified by Defendants, both in their public and under seal declarations? See
ACLU Foundation of Southern California v. Barr, 952 F.2d 457, 469, n.13 (D.C. Cir.
1991). If the Court should find a violation under FISA, what is the injunctive recourse
Plaintiffs seek and is this Court the proper forum to obtain that relief?

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In Jeppesen Dataplan, the Ninth Circuit describes other possible avenues of relief for
plaintiffs without judicial recourse. 614 F.3d at 1091-92. The majority suggests
remedies such as the Executive thoroughly reviewing their own conduct, or a
Congressional investigation of alleged wrongdoing and restraint from Executive excess,
or Congressional enactment of a private bill which may require the alleged conduct be
reviewed by the Court of Federal Claims. What is the mechanism by which such

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remedies might be accessible to Plaintiffs or do these suggested remedies, as the dissent
decries, “elevate the impractical to the point of absurdity”? Id. at 1101.

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7.

“[A]ny lawsuit against an agency of the United States or against an officer of the United
States in his or her official capacity is considered an action against the United States.”
Balser v. Department of Justice, 327 F.3d 903, 907 (9th Cir. 2003) (citations omitted).
Thus, assuming arguendo that the doctrine articulated in Larson v. Domestic & Foreign
Commerce Corporation, of suing officers for ultra vires acts survives the 1976
amendment to the Administrative Procedure Act (“APA”), Plaintiffs must sue the
officers in their individual or personal capacity. 337 U.S. 682 (1949). In their statutory
claims for injunctive relief, Plaintiffs name Keith B. Alexander, Michael B. Mukasey,
and John M. McConnell in their official and personal capacities. In their combined
reply (Docket No. 112), Plaintiffs argue that these claims are against Alexander, Eric
Holder, and James R. Clapper. However, Plaintiffs have not moved to substitute in or
amended their complaint to name Holder or Clapper. To the extent Plaintiffs are suing
Holder and Clapper in their official capacity, there is no need to do so. See Fed. R. Civ.
P. 25. However, Rule 25 does not apply to officers who are sued in their individual
capacity. On what basis do Plaintiffs contend that they may sue Holder and Clapper in
their individual capacity when Holder and Clapper have not been named as defendants
in this suit?

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Under Larson, the Court must look to the remedy Plaintiffs seek in order to determine
whether their claims truly are against the officers in their individual capacity or are
against the United States. Plaintiffs broadly seek to enjoin Defendants, and “all those in
active concert and participation with them from violating the Plaintiffs’ and class
members’ statutory rights.” (Complaint at ¶¶ 155, 183, 220, 243.)

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For the Northern District of California

United States District Court

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a.

To the extent Plaintiffs may bring a claim under Larson, the Court must examine
the scope of the requested injunction to determine whether the claim “would
work an intolerable burden on governmental functions.” Washington v. Udall,
417 F.2d 1310, 1318 (9th Cir. 1969). What specific conduct are Plaintiffs
seeking to enjoin?

b.
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Are Plaintiffs seeking to enjoin conduct by anyone other than Alexander, Holder,
or Clapper?

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i.

If so, on what basis do Plaintiffs contend that such an injunction would
fall within the limits of a claim under Larson?

ii.

If not, in light of the fact that Plaintiffs seek to enjoin persons in active
concert and participation with these officers, and the reality that the
alleged program is carried out by government officials in addition to
these three officers, how would an injunction directed solely at
Alexander, Holder, and Clapper in their individual capacities provide
Plaintiffs with the relief they seek?

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9.

Is Section 1809 the only provision of FISA that Plaintiffs allege Defendants violated?
a.

If not, what other specific provisions under FISA do Plaintiffs allege that
Defendants violated?

b.

If so, to the extent Plaintiffs are suing the individual officers in their official
capacity, on what basis do Plaintiffs contend that such a claim for injunctive
relief is not barred by Al-Haramain? 690 F.3d 1089. Although the Ninth Circuit
in Al-Haramain addressed a claim for damages, the court stated that a violation
of Section 1809 is a criminal offense. The court explained that holding a

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criminal prosecution against an officer in his official capacity, and thus against
an office, would be “unprecedented” and that criminally prosecuting a successor
in office for actions of his predecessor would be “patently absurd.” Id. at 109899.

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10.

Section 702 of the APA does not “confer[] authority to grant relief if any other statute
that grants consent to suit expressly or impliedly forbids the relief which is sought.” 5
U.S.C. § 702. Are Plaintiffs arguing that this limitation on the APA’s withdrawal of
sovereign immunity does not apply if the grant of consent and the limitation are
contained within two statutes, as opposed to one? In other words, because the grant of
consent to sue under FISA and the Wiretap Act is contained within a separate statute,
the Stored Communications Act (“SCA”), 18 U.S.C. §§ 2701, et seq., is the Court
required to consider only the SCA in order to determine whether the limitation under the
APA applies to Plaintiffs’ claims under FISA and the Wiretap Act? Can any party refer
this Court to a case where, in determining the scope of this limitation under the APA, a
court has addressed the issue of whether it may consider both statutes in conjunction
with one another, when one statute amends another?

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What are the significant differences between the Jewel and Shubert complaints with
regard to the structure of deciding the pending motions?

12.

Do the parties have anything further they wish to address?

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.
Dated: December 12, 2012
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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