Jewel et al v. National Security Agency et al

Filing 32

MOTION Individual capacity defendants' motion for relief from the Court's Orders of April 27, 2009, and May 8, 2009 filed by David S. Addington, Keith B. Alexander, John D. Ashcroft, George W. Bush, Richard B. Cheney, Alberto R. Gonzales, Michael V. Hayden, John M. McConnell, Michael B. Mukasey, John D. Negroponte. Motion Hearing set for 9/17/2009 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (Attachments: # 1 Proposed Order)(Whitman, James) (Filed on 7/10/2009)

1

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 5 Telephone: [phone]; Facsimile: [phone] 6 KEKER & V AN NEST, LLP

7 RACHAELvE.cMENY (SBN 178514) rmeny(êk n. om

8 PAULAAEL S. KWU (SBN 198945) MICH L. BLIZZAR (SBN 207920)
9 AUDREY WALTON-HADLOCK (SBN 250574) 710 Sansome Street San Francisco, California 94111-1704 10 Telephone: [phone]; Facsimile: [phone]
11

LAW OFFICE OF RICHAR R. WIEBE RICHAR R. WIEBE (SBN 121156)
425 California Street, Suite 2025 San Francisco, California 94104 Telephone: [phone]; Facsimile: [phone]

12 wiebeêpacbe1I.net

13

14 THE MOORE LAW GROUP
15

THOMAS E. MOORE III (SBN 115107) tmoore(êmoorelawteam.com
Palo Alto, California 94301

16 228 Hamilton Avenue, 3rd Floor
17 Telephone: [phone]; Facsimile: [phone]

Attorneys for Plaintiffs
18

UNITED STATES DISTRICT COURT
19

NORTHERN DISTRICT OF CALIFORNIA
20

CAROLYN JEWEL, TASH HEPTING, 21 GREGORY HICKS, ERIK KNTZEN and themselves JOICE WALTON, on behalf of 22 and all other similarly situated,
23

Case No. C-08-4373-VRW
CLASS ACTION

PLAINTIFFS' OPPOSITION TO
Plaintiffs,
v.

24

GOVERNMENT DEFENDANTS' MOTION TO DISMISS AND FOR SUMMARY JUDGMENT
Date: Time: Dept: Judge:

25 NATIONAL SECURITY AGENCY, et aI.,

July 15, 2009
10:30 a.m.

26 Defendants.
27
28

6, 1 ih Floor Vaughn R. Walker

Date Compo Filed: September 18, 2008

442684.03

PLAINTIFFS' OPPOSITION TO GOVERNENT DEFENDANTS' MOTION TO DISMISS AND FOR SUMMARY JUDGMENT CASE NO. C-08-4373-VRW

2 Pa2e
5

1 TABLE OF CONTENTS

3 INTRODUCTION ...... .................................. ........... ............ .............. ..............................................1
4 ARGUMENT...................................................................................................................................1

i.

Sovereign immunity does not bar Plaintiffs' claims............................................................1

6 7
8

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

9

claims under FISA. ......................................................................................4

10
11

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
12
13
2. Congress waived sovereign immunity for Plaintiffs' equitable

not claim~ ag~inst th~ United States and thus cannot be bared

by sovereign immunity. ...................................... ..........................................6
14
15

relief claims, including Plaintiffs' AP A claim. ..........................................12
II.
For purposes of

Plaintiffs' claims, FISA preempts the common-law state secrets privilege. ........................... .................................................................................... .14
secrets privilege. ................................................................................................... .15

16

A. Where section 1806(f) applies, it preempts the common-law state
17
18

B. FISA's section 1806(f) procedure applies to the evidence supporting
all of Plaintiffs' claims.......................................................................................... .16
III.
Even if

19

the state secrets privilege were not preempted, this case could not be

20
21

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

22
23

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

24
25

26 27
28
i PLAINTIFFS' OPPOSITION TO GOVERNENT DEFENDANTS' MOTION TO DISMISS AND FOR
442684.03

SUMMARY JUDGMENT
CASE NO. C-08-4373-VRW

1

TABLE OF AUTHORITIES
Pa2e( S)

2
3

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
8 Assiniboine & Sioux Tribes v. Bd. of Oil & Gas

674 F.2d 1227 (9th Cir. 1982) ....................................................................~..............................11
792 F .2d 782 (9th Cir. 1986) .................................................................................................... .12

9

Block v. ND.

10 461 U.S. 273 (1983).............................................................................................................1 0, 13
11

Califano v. Sanders 430 U.S. 99 (1977)................................................................................................................... ..12
Central Reserve Life Insurance Co. v. Struve

12
13

852 F.2d 1158 (9th Cir. 1988) ...................................................................................................11
Chamber of Commerce v. Reich

74 F .3d 1322 (D. C. Cir. 1996)........................................ ..... ............... ........ .................................8
14
15

Conner v. Tate 130 F. Supp. 2d 1370 (N.D. Ga. 2001) ................................ ..... .................... ........................ .......5
Custis v. United States 511 U.S. 485 (1994)................................................................................................................. ....2

16

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

20
21

533 U.S. 167 (2001).................................................................................... .................................3
Gilbert v. DaGrossa 756 F .2d 1455 (9th Cir. 1985) .. ...... .....;................ ............. ......... ............... .............................. ....5

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
11

PLAINTIFFS' OPPOSITION TO GOVERNENT DEFENDANTS' MOTION TO DISMISS AND FOR
442684.03

SUMMARY JUGMENT

CASE NO. C-08-4373-VRW

2 Pa2e(s)
1 TABLE OF AUTHORITIES
(cont'd)
3 Larson v. Domestic & Foreif!n Commerce Corp.

4
5

6

337 U.S. 682 (1949).......................................................................................................7,8,9, 11 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
753 F.2d 1482 (9th Cir. 1985).................................................................... ................ .............. .14
18 F .3d 91 (2d Cir. 1994) ........................................................................................................ ....5

7 North Side Lumber Co. v. Block

8

Orf!anizaczon JD Ltda. v. US. Dep't of Justice

9

10
11

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
465 U. S. 89 (1984)....... ............................................................................................................ ..11

12 Pennhurst State School & Hospital v. Halderman

13

Philadelphia Co. v. Stimson

223 U.S. 605 (1912).....................................................................................................................8
14
15

Presbyterian Church (US.A.) v. US
870 F. 2d 518 (9th Cir. 1989) ................................................................................................... ..12
Ratzlaf v. U S 510 U.S. 135 (1994).....................................................................................................................3

16

17 Rochon v. Gonzales

438 F.3d 1211 (D.C. Cir. 2006) ...................................................................................................5

18 19

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

20
21

Totten v. United States,
92. U. S. 105 (1875).................................................................................................................... .19

22
23

Trudeau v. FTC 456 F .3d 178 (D.C. Cir. 2006).... ................ .................. ........... ................. ............................... ..12
United States v. Kinf!
395 U.S. 1 (1969)....................................................................................................................... i 4

24
25

United States v. Novak 476 F.3d 1041 (9th Cir. 2007) ....... .......... ......... .......................................... ........................... ......6

26
27 28

Wiliams v. Citv of Tulsa 393 F. Supp. 2d 1124 (N.D. Okla. 2005).....................................................................................6

Wiliams v. Fanninf! 332 U.S. 490 (1947) ............................................ ..................................................................... ..11
11 PLAINTIFFS' OPPOSITION TO GOVERNENT DEFENDANTS' MOTION TO DISMISS AND FOR SUMMARY JUDGMENT CASE NO. C-08-4373-VRW

442684.03

1

TABLE OF AUTHORITIES (cont'd)
FEDERAL STATUTES

2
3

Pa2e(s)

4
5

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

6 7
8

18 U.S.C. § 2707 ..........................................................................................................2,3,5, 10, 13
18 U.S. C. § 2711 ....................................... ................ ............... ......................................................10

18 U.S .C. § 2712.................................................................................................................... passim

9

28 U.S. C. § 1331...................................... .................................................................. .................... .12

10
11

50 U.S.C. § 1801...................................................................................................................... ....4, 5 50 U.S.C. § 1806 ............................. .................................... ........................... ........................ passim
50 U.S. C. § 1810................................................................................................... ................. passim

12

50 U.S.C. § 1812......................................... ........................................................... ......,.............9, 14

13 USA PATRIOT Act of2001, Pub L. No. 107-56, 115 Stat. 272 ("PATRIOT") ..........................................................................................................................3, 6 14 FEDERAL RULES
15

Fed. R. Civ. P. 25 ............................................................................................................................. 7
Fed. R. Civ. P. 56.............................. ....... ...................................................... ................. .........17, 23

16

CONSTITUTIONAL PROVISIONS

17 U.S. Const. amend. XI ......... ................. ....... ....................................... ..... ........................ ............. .11
18 19

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
22
23

24
25

26 27
28

iv
PLAINTIFFS' OPPOSITION TO GOVERNENT DEFENDANTS' MOTION TO DISMISS AND FOR
442684.03

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.
Plaintiffs' damages claims

16 Congress has expressly waived sovereign immunity for all of

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
1.

Congress waived sovereign immunity for Plaintiffs' damages claims under the Wiretap Act and ECP A.

26
The plain language of 18 US.c. § 2712 expressly waives sovereign immunity and

27

authorizes damages suits against the United States for "any wilful violation" of any provision of
28
1

PLAINTIFFS' OPPOSITION TO GOVERNENT DEFENDANTS' MOTION TO DISMISS AND FOR
442684.03

SUMMARY JUGMENT

CASE NO. C-08-4373-VRW

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 of

this title (the Wiretap Act) or
sections 106(a), 305(a), or 405(a) of

4 may commence an action in United States District Court against the United States to recover money damages.
5

(FISA)

18 U.S.C. § 2712(a) (line breaks added).
6

Ignoring this plain language, Defendants make the extraordinary claim that section
7
2712's waiver of sovereign immunity does not actually reach surveillance in violation of

these

8

laws. Instead, Defendants argue that the waiver is limited to violations of a few specific Wiretap
9
Act and ECPA provisions that regulate the government's disclosure of

information obtained

10

pursuant to those statutes, i.e., 18 US.c. §§ 2520(g) and 2707(g). See Gov't Br. at 5. However,
11
as this Court has held, it is "(t)he plain language of

the statute(J which the cour must use as its

12

primary compass." Al-Haramain, 564 F. Supp. 2d at 1134 (internal citation omitted). In this
13

case, the compass's direction is unmistakable.
14

Section 2712's plain and unambiguous statement that the United States is subject to suit
15

for any wilful violation of any provision of ECP A or the Wiretap Act satisfies the rule that
16

waivers of federal sovereign immunity "must be unequivocally expressed in statutory text."
17
Lane v. Pena, 518 US. 187, 192 (1996); see also Multi Denominational Ministry of

Cannabis &

18

Rastafari, Inc. v. Gonzales, 474 F. Supp. 2d 1133, 1140 (N.D. CaI. 2007) (lawsuits for damages
19

against federal employees in their offcial capacities "canot be maintained unless Congress has
20

explicitly waived the sovereign immunity ofthe United States."). If Congress had wished to
21
limit section 2712's waiver to paricular provisions of

the Wiretap Act and ECP A, "it knew how

22

to do so." Custis v. United States, 511 U.S. 485, 492 (1994). Indeed, Congress placed a specific
23

limit on FISA causes of action in the very same sentence, waiving sovereign immunity only as to
24

particular provisions ofFISA not already subject to FISA's own waiver provisions. See 18
25

US.C. § 2712(a). No such limit, however, was placed on Wiretap Act or ECP A causes of
26
action.

27

This plain language reading of 18 U.S.C. § 2712(a) is consistent with other provisions of
28
2
442684.03

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
3 PLAINTIFFS' OPPOSITION TO GOVERNENT DEFENDANTS' MOTION TO DISMISS AND FOR

442684.03 SUMMARY CASE NO. C-08-4373-VRW JUDGMENT

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 the United does provide for civil damagès ... against officers and employees of
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
10 improper disclosure of

stored by electronic communication service providers), but also from the ECPA-related information. some kinds of

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
15

2.

Congress waived sovereign immunity for Plaintiffs' damages claims under FISA.

As this Court ruled in Al-Haramain, Congress waived sovereign immunity for FISA
16

damages claims under 50 US.C. § 1810. See 564 F. Supp. 2d at 1124-25. Congress waived
17

sovereign immunity in two ways. First, as this Court held, Congress waived immunity by
18

expressly making federal officers acting in their offcial capacities subject to suit for damages.
19

See id. Second, Congress also waived immunity by expressly making "any . . . entity,"
20

including the United States, subject to suit. See 50 U.S.c. § 1801(m) (defining "Person(s)"
21

amenable to suit to include "any. . . entity").
22

FISA's provision for civil damages provides for relief against "any person" who conducts
23
unlawful electronic surveilance, 50 U.S.C. § 1810, and as defined

in FISA, a "person" includes

24
"any offcer or employee of

the Federal Governent." 50 U.S.C. § 1801(m). Al-Haramain

25

explains:
26 27
28

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
4
PLAINTIFFS' OPPOSITION TO GOVERNENT DEFENDANTS' MOTION TO DISMISS AND FOR

442684.03

SUMMARY JUGMENT

CASE NO. C-08-4373-VRW

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

564 F. Supp. 2d at 1125 (internal citations omitted). That Al-Haramain holding flows directly
3

from the rule, previously recognized by this Court, that an action seeking damages against
4

federal officers and employees in their official capacities "is considered a suit against the United
5

States." Multi Denominational Ministry, 474 F. Supp. 2d at 1140; accord, Gilbert v. DaGrossa,
6

756 F.2d 1455, 1458 (9th Cir. 1985). By prescribing civil damages liability for federal offcers
7

or employees-and hence the United States-through its definition of "person," FISA waives
8

federal sovereign immunity despite the absence of an express specification of "the United
9
States." Cf Salazar v. Heckler, 787 F.2d 527,528-529 (10th Cir. 1986) (Title VII of

Civil

10

Rights Act of 1964, which authorizes civil actions for employment discrimination by specifying
11

"the head" of an offending federal entity as defendant, waives sovereign immunity despite failure
12

to specify "the United States"); accord, Rochon v. Gonzales, 438 F.3d 1211, 1215-16 (D.C. Cir.
13

2006).
14

FISA also waives sovereign immunity by its inclusion of "any. .. entity" in its definition
15
of

"person(s)" amenable to suit under 50 U.S.c. § 1810. See 50 U.S.c. § 1801(m) (defining

16

"person"). Prior to 2001, FISA, the Wiretap Act, and ECP A each imposed liability on "any. . .
17

entity," including the United States. See Organizacion JD Ltda. v. US. Dep't of Justice, 18 F.3d
18
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
preserved this understanding of "entity" in 2001, when

it left FISA's provision unchanged while

21

amending the Wiretap Act and ECP A civil causes of action by inserting "other than the United
22

States" at the end of the list of potential defendants in those statutes, in order to exclude the
23

United States from the entities liable under those two statutes. See PATRIOT § 223(a)(1) and
24
25

26 27 28

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
5 PLAINTIFFS' OPPOSITION TO GOVERNENT DEFENDANTS' MOTION TO DISMISS AND FOR

Wiretap Act).

442684.03

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

Sovereign immunity does not bar Plaintiffs' equitable claims.
1.

22

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
6 PLAINTIFFS' OPPOSITION TO GOVERNENT DEFENDANTS' MOTION TO DISMISS AND FOR SUMMARY JUDGMENT CASE NO. C-08-4373-VRW

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
3 which sovereign immunity attaches.

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
2 The automatic substitution provisions of

21

Federal Rule of Civil Procedure 25( d)

(1 ) for official-

22
23

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

24
25

26 27
28

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 their authority"). In Counts V, VII, X, and XIII, Plaintiffs seek from acting in excess of 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 SUMMARY JUDGMENT CASE NO. C-08-4373-VRW

442684.03

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

442684.03 SUMMARY CASE NO. C-08-4373-VRW JUDGMENT

8 PLAINTIFFS' OPPOSITION TO GOVERNMENT DEFENDANTS' MOTION TO DISMISS AND FOR

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

442684.03 SUMMARY CAJUGMENT SE NO. C-08-4373-VRW

PLAINTIFFS' OPPOSITION TO GOVERNENT DEFENDANTS' MOTION TO DISMISS AND FOR

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 his obtain an in personam judgment against an officer confining his actions within the limits of 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

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

26 5 Nor do the other cases Defendants cite support their contention that Plaintiffs' ultra vires

challenged conduct was within the federal official's statutory authority and not ultra vires.
11

442684.03 SUMMARY JUGMENT

PLAINTIFFS' OPPOSITION TO GOVERNMENT DEFENDANTS' MOTION TO DISMISS AND FOR
CASE NO. C-08-4373-VRW

1

2.

Congress waived sovereign immunity for Plaintiffs' equitable relief claims, including Plaintiffs' APA claim.
of

2
Section 702

the Administrative Procedures Act waives sovereign immunity for claims

3

against governent agencies and officers seeking equitable relief. 5 US.C. § 702. Section
4
702' s waiver applies both to claims brought under section 704 or other provisions of the AP A
5

and to claims brought outside the AP A to enforce other statutory or constitutional provisions.
6

Trudeau v. FTC, 456 F.3d 178, 186 (D.C. Cir. 2006) (holding section 702's "'waiver of
7

sovereign immunity applies to any suit whether under the AP A or not'''; quoting Chamber of
8

Commerce, 74 F.3d at 1328); Presbyterian Church (US.A.) v. Us., 870 F.2d 518,525 (9th Cir.
9
1989) (explaining "§ 702 waives sovereign immunity in all actions seeking relief

from offcial

10
misconduct"); Assiniboine & Sioux Tribes v. Bd. of

Oil & Gas, 792 F.2d 782, 793 (9th Cir. 1986)

11

12
13

(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,
14

and the NSA) and against Governent Offcer Defendants Alexander, Holder, and Blair for
15

constitutional and statutory violations.6 Section 702 also waives any possible sovereign
16

immunity defense to Counts V, VII, X; and XIII (even though, for the reasons stated in the
17

preceding section, there is no sovereign immunity defense to those claims and thus no need for a
18

waiver). Trudeau, 456 F.3d at 186; Presbyterian Church, 870 F.2d at 525.
19

Defendants do not contest that Plaintiffs' AP A claim in Count XVI is proper as to the

20

constitutional violations alleged. They contend, however, that section 702's waiver does not
21

apply to Plaintiffs' AP A claim in Count XVI to the extent it alleges violations of the Wiretap
22
Act, ECP A, and FISA. In support of

that contention, Defendants rely on an exception to section

23

702's sovereign immunity waiver that applies "if any other statute that grants consent to suit
24
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.

25

6 Defendants spawn a red herrng when they assert that there is no jurisdiction for claims arsing 27 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 SUMMARY JUGMENT
CASE NO. C-08-4373-VRW

442684.03

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
as "an action. . . against the United States to recover

13 section 2712 is set forth in subsection (a)

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

442684.03 SUMMARY CAJUGMENT SE NO. C-08-4373- VRW

13 PLAINTIFFS' OPPOSITION TO GOVERNMENT DEFENDANTS' MOTION TO DISMISS AND FOR

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

II.
Defendants' invocation of

For purposes of Plaintiffs' claims, FISA preempts the common-law state secrets privilege.
the state secrets privilege cannot defeat any of

24
25

Plaintiffs'

claims. Congress's detailed, comprehensiveFISA protocol governing cour review of
26

surveilance-related evidence preempts the common-law state secrets privilege as to the materials
27

underlying Plaintiffs' claims here, and wil permit the Cour to evaluate all necessary evidence.
28
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

442684.03

SUMMARY JUDGMENT
CASE NO. C-08-4373-VRW

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
FISA's procedure for judicial review of surveillance-related evidence applies to all of

FISA's section 1806(f) procedure applies to the evidence supporting all of Plaintiffs' claims.
the

17

purportedly secret materials underlying Plaintiffs' claims here, and preempts the state secrets
18
privilege for all of

those materials. See Al-Haramain, 564 F. Supp. 2d at 1119.

19

By its plain language, section 1806(f) and its preemptive effect apply in any kind of civil
20
or criminal

litigation, whether claims are filed under FISA or any other law, when purportedly

21

secret materials related to electronic surveilance are at issue. Specifically, section 1806(f)'s
22

procedures apply "whenever any motion or request" is made by an aggrieved person "pursuant to
23
any other statute or rule of

the United States or of any State. . . to discover or obtain. . .

24

materials relating to electronic sureilance."g 50 U.S.c. § 1806(f) (emphasis added). This
25

26
27 28

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 many other AT&T customers. See Hepting v. AT&T Corp., 439 F. Supp. 2d at 974, at those of
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

442684.03

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
the

21 FISA). All of

Plaintiffs' claims are related to that ilegal surveillance dragnet, as is all of

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

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

442684.03

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
merits,

9 the Court to evaluate whatever evidence is necessary to decide Plaintiffs' claims on their

10 at the appropriate time.
11

III.

Even if the state secrets privilege were not preempted, this case could not be dismissed based on the privilege.

12

Because section 1806(f) preempts the state secrets privilege, Defendants' argument that
13

the state secrets privilege requires dismissal fails and the Cour need not consider it further.
14

Even if section 1806(f) did not preempt the state secrets privilege, however, the state secrets
15

privilege would stil provide no basis for dismissing this action, as the Ninth Circuit recently
16
confirmed in

Mohamed, 563 F.3d at 1004.

17

A.
18

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
the suit is not a state secret.

23 not apply and the subject matter of

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

442684.03 SUMMARY JUGMENT

18 PLAINTIFFS' OPPOSITION TO GOVERNENT DEFENDANTS' MOTION TO DISMISS AND FOR
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;
just abroad. According to the governent's theory, the Judiciary should effectively cordon off all secret

6 and to secret conduct committed on U.S. soil, not

7 governent actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits ofthe law.
8

Id. The Ninth Circuit held that, instead of threshold dismissal, the proper course is for a court to
9

consider assertions ofthe state secrets privilege on an item-by-item basis under Reynolds:
10

"Unlike Totten, the Reynolds framework accommodates these division-of-powers concerns by
11

upholding the President's secrecy interests without