Twitter, Inc. v. Holder et al

Filing 81

ORDER by Judge Yvonne Gonzalez Rogers granting 80 Stipulation/Request to Continue Hearing re: Effect of USA Freedom Act; Directing the Filing of Supplemental Briefing. (fs, COURT STAFF) (Filed on 9/11/2015)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

NORTHERN DISTRICT OF CALIFORNIA

8
9

TWITTER, INC.,

Case No. 14-cv-04480-YGR

Plaintiff,
10
v.

United States District Court
Northern District of California

11
12

ERIC H. HOLDER, ET AL.,
Defendants.

ORDER GRANTING REQUEST TO CONTINUE
HEARING RE: EFFECT OF USA FREEDOM
ACT; DIRECTING THE FILING OF
SUPPLEMENTAL BRIEFING
(Dkt. No. 80)

13
14

On June 3, 2015, Defendants Loretta Lynch, et al., (“the Government”) filed a “Notice

15

Regarding Enactment of USA FREEDOM Act of 2015.” (Dkt. No. 67.) On June 9, 2015,

16

Plaintiff Twitter, Inc. (“Twitter”) filed its own Notice regarding the new legislation. (Dkt. No.

17

68.) The Court thereafter ordered the parties to file supplemental briefing on the effect of the

18

legislation on both the Government’s pending partial motion to dismiss and on the complaint

19

generally, and the parties did so. (See Dkt. Nos. 69, 74, 75, 76, 77.)

20

Also, on August 28, 2015, the Government filed a Notice of Recent Authority (Dkt. No.

21

78), attaching a decision of the Ninth Circuit which vacated judgments in several cases pending

22

before it (In re: National Security Letter cases, Ninth Circuit Court of Appeal Nos. 13-15957, 13-

23

16731, 13-16732), and remanded to the district court for further consideration “in light of the

24

significant changes to” 18 U.S.C. sections 2709 and 3511 effected by the Uniting and

25

Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring

26

Act of 2015, Pub. L. No. 114-23, 129 Stat. 268 (2015) (“the USA FREEDOM Act” or “the

27

USAFA”).

28

The Court set this matter for a hearing for September 22, 2015, regarding the effect of the

1

USAFA on the pending motion to dismiss, as well as on the continued viability of Twitter’s

2

complaint generally. The parties submitted a stipulated request to move that hearing to October

3

13, 2015, which the Court GRANTS. (Dkt. No. 80.)

4

However, in the interim, the Court further ORDERS that the parties provide a written

5

response (not to exceed 15 pages) to the questions below by September 28, 2015. Of primary

6

concern to the Court is whether the USAFA has changed the FISA and NSL-related provisions

7

that were challenged by Twitter in its complaint (i.e., 18 U.S.C. §§ 2709 and 3511) such that the

8

entire action is now moot. “[T]he Supreme Court and [the Ninth Circuit] have repeatedly held that

9

a case is moot when the challenged statute is repealed, expires, or is amended to remove the
challenged language.” Log Cabin Republicans v. United States, 658 F.3d 1162, 1166 (9th Cir.

11
United States District Court
Northern District of California

10

2011) (“Don’t Ask, Don’t Tell” statute repealed during pendency of appeal of Constitutional

12

challenge); see also Princeton Univ. v. Schmidt, 455 U.S. 100, 101, 103 (1982) (per curiam) (First

13

Amendment challenge to prior set of university regulations governing on-campus speech by

14

members of the public was mooted when the university substantially amended those regulations to

15

create a more permissive scheme). Similarly, when subsequent legislation or rulemaking

16

supersedes challenged regulations or rules, the challenge is moot. NRDC v. U.S. Nuclear

17

Regulatory Comm’n, 680 F.2d 810, 813-14 & n.8 (D.C. Cir. 1982) (challenge to interim rule for

18

failure to abide by notice and comment requirements mooted by issuance of final rule with notice

19

and comment); Bullfrog Films, Inc. v. Wick, 959 F.2d 778, 780 (9th Cir. 1992) (appeal moot where

20

interim regulations found unconstitutional by the district court have been supplanted by the new

21

legislation). It appears to the Court that at least some of the issues raised in Twitter’s complaint

22

no longer present justiciable questions. The parties shall, therefore, address the following

23

questions in their supplemental briefing:

24

1. If the Court finds that the DAG letter is superceded by Section 603 of the USAFA,

25

(newly codified at 50 U.S.C. section 1874), does this moot Twitter’s as-applied challenge to

26

section 2709(c)? The Court notes that Twitter has characterized its as-applied challenge to section

27

2709(c) as being based on the Government’s interpretation of the section and “application of the

28

same to Twitter via the DAG Letter.” (Dkt. No. 66, Exh. A.)
2

1

2. Is a facial challenge to section 2709(c) completely mooted by amendments that: (i)

2

deleted and replaced 2709(c); (ii) revised section 2709(b); and (iii) added 2709(d), such that the

3

provisions now require the government to provide notice of a right to judicial review in order for

4

any nondisclosure provision to apply? Relatedly, would the as-applied challenge mooted to the

5

same degree as the facial challenge, or does the mootness analysis differ for the two?

6

3. If the Court finds that the claims in Twitter’s complaint are mooted by the USAFA,

7

should a dismissal be with leave to amend, or would any further challenge to the new and

8

amended provisions have to be made in a new lawsuit?

9

4. What effect, if any, does the Ninth Circuit’s order vacating and remanding for further
consideration the In re: National Security Letter cases have on the pending motion and the

11
United States District Court
Northern District of California

10

complaint generally?

12

This Order terminates Docket No. 80.

13

IT IS SO ORDERED.

14
15

Dated: September 11, 2015

______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT JUDGE

16
17
18
19
20
21
22
23
24
25
26
27
28
3