In re National Security Agency Telecommunications Records Litigation

Filing 583

MOTION to Dismiss Plaintiffs' Complaint in 09-cv-0131-VRW (McMurray et al. v. Verizon Comm. Inc. et al.) by Government Defendants filed by National Security Agency, United States of America. Motion Hearing set for 5/14/2009 02:30 PM in Courtroom 6, 17th Floor, San Francisco. (Coppolino, Anthony) (Filed on 3/13/2009)

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1 2 3 4 5 6 7 8 9 10 11 MICHAEL F. HERTZ Acting Assistant Attorney General DOUGLAS N. LETTER Terrorism Litigation Counsel JOSEPH H. HUNT Director, Federal Programs Branch ANTHONY J. COPPOLINO Special Litigation Counsel PAUL G. FREEBORNE MARC KRICKBAUM Trial Attorneys U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW, Rm. 6102 Washington, D.C. 20001 Phone: (202) 514-4782--Fax: (202) 616-8460 Attorneys for the Government Defendants UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) ) No. M:06-cv-01791-VRW GOVERNMENT DEFENDANTS' NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS' COMPLAINT IN 09-CV-0131-VRW Date: Time: Courtroom: May 14, 2009 2:30 p.m. 6, 17th Floor IN RE NATIONAL SECURITY AGENCY 12 TELECOMMUNICATIONS RECORDS LITIGATION 13 This Document Relates To: 14 McMurray et al. v. Verizon Comm., Inc. et al., 15 No. 09-cv-0131-VRW 16 17 18 19 20 21 22 23 24 25 26 27 28 Chief Judge Vaughn R. Walker Government Defendants' Notice of Motion and Motion to Dismiss and Memorandum in Support, McMurray et al. v. Verizon Comm. Inc. et al., 09-cv-0131-VRW (MDL 06-cv1791-VRW). PLEASE TAKE NOTICE that, on May 14, 2009, at 2:30 p.m. before Chief Judge Vaughn 1 R. Walker, the Government Defendants will move to dismiss the Complaint in the above2 referenced proceeding pursuant to Federal Rule of Civil Procedure 12(b)(1), (b)(6). The 3 Complaint contains three counts challenging the constitutionality of Section 802 of the Foreign 4 Intelligence Surveillance Act of 1978, 50 U.S.C. 1885a, on the grounds that it violates the Fifth 5 Amendment's takings and due process clauses, as well as the separation of powers. The takings 6 claim should be dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction. In addition, 7 each of plaintiff's constitutional claims should be dismissed under Rule 12(b)(6) because they fail 8 as a matter of law, and thus plaintiffs can prove no set of facts in support of their claims that 9 would entitle them to relief. See Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1968 (2007) 10 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). 11 This motion is supported by the accompanying Memorandum of Points and Authorities. 12 Dated: March 13, 2009 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Attorneys for the Government Defendants 27 28 Government Defendants' Notice of Motion and Motion to Dismiss and Memorandum in Support, McMurray et al. v. Verizon Comm. Inc. et al., 09-cv-0131-VRW (MDL 06-cv1791-VRW). Respectfully Submitted, MICHAEL F. HERTZ Acting Assistant Attorney General DOUGLAS N. LETTER Terrorism Litigation Counsel JOSEPH H. HUNT Director, Federal Programs Branch s/ Anthony J. Coppolino ANTHONY J. COPPOLINO Special Litigation Counsel PAUL G. FREEBORNE Trial Attorney s/ Marc Krickbaum MARC KRICKBAUM Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW, Rm. 6102 Washington, D.C. 20001 Phone: (202) 514-4782--Fax: (202) 616-8460 Email: tony.coppolino@usdoj.gov 1 2 3 4 5 6 7 8 9 10 11 MICHAEL F. HERTZ Acting Assistant Attorney General DOUGLAS N. LETTER Terrorism Litigation Counsel JOSEPH H. HUNT Director, Federal Programs Branch ANTHONY J. COPPOLINO Special Litigation Counsel PAUL G. FREEBORNE MARC KRICKBAUM Trial Attorneys U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW, Rm. 6102 Washington, D.C. 20001 Phone: (202) 514-4782--Fax: (202) 616-8460 Attorneys for the Government Defendants UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) ) ) No. M:06-cv-01791-VRW MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF GOVERNMENT DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' COMPLAINT IN 09-CV-0131-VRW Date: May 14, 2009 Time: 2:30 p.m. Courtroom: 6, 17th Floor Chief Judge Vaughn R. Walker IN RE NATIONAL SECURITY AGENCY 12 TELECOMMUNICATIONS RECORDS LITIGATION 13 This Document Relates To: McMurray et al. v. 14 Verizon Comm. Inc. et al., No. 09-cv-0131VRW) 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Government Defendants' Notice of Motion and Motion to Dismiss and Memorandum in Support, McMurray et al. v. Verizon Comm. Inc. et al., 09-cv-0131-VRW (MDL 06-cv1791-VRW). INTRODUCTION 1 Pending before the Court in this Multidistrict Litigation ("MDL") are various consolidated 2 complaints setting forth claims against electronic communication service providers alleged to 3 have provided assistance to an element of the intelligence community. Among these is the case 4 of McMurray et al. v. Verizon Comm. Inc., et al., (07-cv-02029-VRW), which has been before 5 the Court since 2007. As the Court is aware, the Government has intervened and moved to 6 dismiss or, in the alternative, for summary judgment in all actions against provider-defendants 7 pursuant to Section 802 of the Foreign Intelligence Surveillance Act of 1978 ("FISA"), 50 U.S.C. 8 1885a(a) (see Dkt. 469). Section 802 provides that a civil action "may not lie or be maintained" 9 against electronic communication services providers alleged to have provided assistance to an 10 element of the intelligence community, and "shall be promptly dismissed" if the Attorney General 11 of the United States certifies that one of several circumstances exist with respect to the alleged 12 assistance. See 50 U.S.C. 1885a(a)(1)-(5). The Attorney General has made the requisite 13 certification (Dkt 470), and accordingly, the Government has sought dismissal of all pending 14 actions against electronic communication service providers (Dkt. 469). Plaintiffs filed an 15 opposition to the Government's motion and raised various constitutional challenges to Section 16 802 (see Dkt. 483). The opposition was filed on behalf of all plaintiffs, including the McMurray 17 plaintiffs, whose counsel were identified on the plaintiffs' brief in support of the opposition, and 18 in their reply brief (see Dkt 483 at 52; Dkt. 524 at 37). The Court heard argument on the 19 Government's motion on December 2, 2008, and the motion is presently under submission. 20 Despite the fact that the first McMurray action was already pending before this Court, the 21 plaintiffs in McMurray filed a second action in the Southern District of New York in July 2008 22 challenging the application of Section 802 to their first action. See McMurray et al. v. Verizon 23 24 25 26 27 28 The second McMurray Complaint includes one plaintiff that was not a party in the first McMurray Complaint--Amidax Trading Corp. See Second McMurray Complaint (Dkt. 561 Ex. B 10). Amidax's lawsuit allegedly implicating Section 802 was brought in the Southern District of New York, and has now been dismissed. See Amidax v. SWIFT SCRL, No. 08-cvGovernment Defendants' Notice of Motion and Motion to Dismiss and Memorandum in Support, McMurray et al. v. Verizon Comm. Inc. et al., 09-cv-0131-VRW (MDL 06-cv1791-VRW). 1 Communications, Inc. et al., No. 08-cv-6264 (S.D.N.Y).1/ Because the second McMurray case raised issues that obviously pertained to and would be subject to adjudication in the first lawsuit 1 already before the Court, the United States sought transfer of this second action to these MDL 2 proceedings, and the Judicial Panel on Multidistrict Litigation transferred the second McMurray 3 4 The constitutional challenges to Section 802 raised by the McMurray plaintiffs in their 5 second lawsuit largely duplicate claims that have been briefed by all parties in connection with 6 the Government's prior dispositive motion--again, including briefing that was submitted on 7 behalf of, and joined by, these very McMurray plaintiffs. For this reason, the Government filed a 8 motion to treat the second McMurray action as subject to the Government's prior motion to 9 dismiss. See United States' Administrative Motion (Dkt. 557). The McMurray plaintiffs opposed 10 this course, arguing that their second action contains one issue not raised in prior briefing: a 11 challenge to Section 802 under the Fifth Amendment's takings clause. See Plaintiffs' Opposition 12 (Dkt. 561) at 5-6. The Court the directed the Government to respond to the second McMurray 13 Complaint, see Feb. 19, 2009 Order (Dkt. 565), and the Government now seeks dismissal. 14 15 SUMMARY OF ARGUMENT 16 The McMurray plaintiffs' second Complaint contains three counts (Dkt. 561 Ex. B 1817 39). Two counts--challenging Section 802 on the basis of the separation of powers doctrine and 18 the due process clause--have been briefed in connection with the Government's prior motion, 19 including briefs submitted on behalf of and joined by the McMurray plaintiffs. These claims 20 should be dismissed for the reasons outlined further below and in the Government's memoranda 21 in support of its prior motion. The second McMurray Complaint presents a third claim--a 22 takings clause challenge--that is arguably novel, but no more promising. The Court should 23 dismiss the takings claim for lack of subject matter jurisdiction, because federal courts may not 24 25 26 27 28 5689 (S.D.N.Y.) (Dkt. 35). Even if Amidax had a right to challenge Section 802 in that case, such a challenge is now moot (and would have been meritless for the reasons outlined below). The second McMurray action was docketed in this Court on January 13, 2009 and given a separate civil action number for these proceedings (09-cv-0131-VRW) (see Dkt. 541). Government Defendants' Notice of Motion and Motion to Dismiss and Memorandum in Support, McMurray 2 et al. v. Verizon Comm. Inc. et al., 09-cv-0131-VRW (MDL 06-cv1791-VRW). 2 action to this Court (see Dkt. 540).2/ address the merits of a takings challenge where plaintiffs have failed to pursue a claim for 1 compensation pursuant to the Tucker Act. Even if this Court were to reach the merits, it should 2 dismiss the takings claim because--as the McMurray plaintiffs themselves have already 3 conceded--plaintiffs have no constitutionally protected property interest in causes of action that 4 have not been reduced to final judgments. 5 ARGUMENT 6 I. 7 8 9 THE COURT DOES NOT HAVE JURISDICTION TO CONSIDER THE MERITS OF PLAINTIFFS' TAKINGS CLAIM. The Court does not have subject matter jurisdiction over plaintiffs' takings claim because plaintiffs must seek compensation for any alleged taking pursuant to the Tucker Act. The Fifth 10 Amendment prohibits the federal government from taking "private property . . . for public use, 11 without just compensation." U.S. Const. amend. V. The takings clause does not prohibit all 12 takings of private property; it requires that when the government takes private property, it must 13 pay just compensation. See Preseault v. ICC, 494 U.S. 1, 11 (1990); Bay View, Inc. v. Ahtna, 14 Inc., 105 F.3d 1281, 1284-85 (9th Cir. 1997). The government need not provide compensation 15 immediately, but must simply "provide[] an adequate process for obtaining [it]." Williamson 16 County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 194 (1985); Bay View, 105 17 F.3d at 1285. 18 "The federal government has provided such a compensation process by consenting to suit 19 . . . under the Tucker Act." Bay View, 105 F.3d at 1285. The Tucker Act provides that the United 20 States Court of Federal Claims has exclusive jurisdiction to hear any claim against the United 21 States based on the Constitution and that seeks damages in excess of $10,000. See Marceau v. 22 Blackfeet Hous. Author., 455 F.3d 974, 986 (9th Cir. 2006); 28 U.S.C. 1491(a)(1). Claims for 23 damages not exceeding $10,000 may be brought in either the Court of Federal Claims or in 24 federal district court. See Marceau, 455 F.3d at 986; 28 U.S.C. 1346(a)(2). The law is clear 25 that a takings claim is "premature until the [alleged] property owner has availed himself of the 26 process provided by the Tucker Act," Presault, 494 U.S. at 11, and "[t]his restriction is 27 jurisdictional." Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 28 Government Defendants' Notice of Motion and Motion to Dismiss and Memorandum in Support, McMurray 3 et al. v. Verizon Comm. Inc. et al., 09-cv-0131-VRW (MDL 06-cv1791-VRW). 1157, 1172 (9th Cir. 2007). The McMurray plaintiffs have not sought compensation under the 1 Tucker Act for their alleged taking, but instead filed this action seeking only equitable relief for 2 their takings claim. See Complaint (Dkt. 561 Ex. B) at 18-21, 39-1. This Court has "no 3 jurisdiction to address the merits of takings claims where Congress has provided a means for 4 paying compensation for any taking that might have occurred." Bay View, 105 F.3d at 1285 5 (dismissing plaintiffs' takings claim for equitable relief); accord Consejo, 482 F.3d at 1172-73; 6 Mead v. City of Cotati, No. C 08-3585, 2008 WL 4963048, at *3-7 (N.D. Cal. Nov. 19, 2008) 7 8 dismiss plaintiffs' takings claim for lack of subject matter jurisdiction. 9 II. 10 11 "In order to state a claim under the Takings Clause, a plaintiff must first demonstrate that 12 he possesses a property interest that is constitutionally protected." Turnacliff v. Westly, 546 F.3d 13 1113, 1118 (9th Cir. 2008) (internal quotation omitted). The Supreme Court has stated that "a 14 cause of action is a species of property," Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 15 (1982), but the Ninth Circuit has long held that "those words do not translate into a cognizable 16 taking claim." In re Consol. U.S. Atmospheric Testing Litig., 820 F.2d 982, 989 (9th Cir. 1987). 17 The takings clause protects only "vested property rights." See Landgraf v. USI Film Prods., 511 18 U.S. 244, 266 (1994) (emphasis added). Under well-settled Ninth Circuit law, "a party's property 19 right in any cause of action does not vest" until he obtains "a final unreviewable judgment." 20 Grimesy v. Huff, 876 F.2d 738, 743-44 (9th Cir. 1989); accord Fields v. Legacy Health Sys., 413 21 F.3d 943, 956 (9th Cir. 2005); Lyon v. Agusta S.P.A., 252 F.3d 1078, 1086 (9th Cir. 2001); Austin 22 23 24 25 26 27 28 A plurality of the Supreme Court has stated that courts may consider the merits of a takings claim for equitable relief under narrow circumstances not applicable here--where the challenged statute "requires a direct transfer of funds mandated by the Government." Eastern Enters. v. Apfel, 524 U.S. 498, 521 (1998) (plurality opinion). Since Eastern Enterprises was decided, the Ninth Circuit has continued to hold that takings claims for equitable relief should be dismissed for lack of subject matter jurisdiction. See Consejo, 482 F.3d at 1172-73; see also Mead, 2008 WL 4963048, at *5-7. Government Defendants' Notice of Motion and Motion to Dismiss and Memorandum in Support, McMurray 4 et al. v. Verizon Comm. Inc. et al., 09-cv-0131-VRW (MDL 06-cv1791-VRW). 3 (Wilken, J.).3/ Consequently, following the rule laid down in these cases, the Court should EVEN IF THIS COURT EXERCISES JURISDICTION, PLAINTIFFS' TAKINGS CLAIM FAILS BECAUSE PENDING CAUSES OF ACTION ARE NOT A PROTECTED PROPERTY INTEREST TAKEN BY SECTION 802. v. City of Bisbee, 855 F.2d 1429, 1435-36 (9th Cir. 1988); Atmospheric Testing, 820 F.2d at 989. 1 Following this rule, the Ninth Circuit has rejected takings claims where plaintiffs, like the 2 McMurray plaintiffs, assert a property interest in a cause of action that is not a final judgment. 3 See Grimsey, 876 F.2d at 743-44; Atmospheric Testing, 820 F.2d at 988-89. The Ninth Circuit's 4 approach enjoys wide support: "every circuit court to have addressed the issue has likewise 5 concluded that no vested property right exists in a cause of action unless the plaintiff has obtained 6 a final, unreviewable judgment." Ileto v. Glock, Inc., 421 F. Supp. 2d 1274, 1299 (C.D. Cal. 7 8 Because a cause of action is not an "enforceable property right until reduced to final 9 judgment," the Ninth Circuit has recognized "Congress's authority to step into previously-filed 10 litigation and terminate a party's substantive rights." Austin, 855 F.2d at 1434, 1435-36 (internal 11 quotation omitted). Accordingly, courts in the Ninth Circuit and elsewhere have repeatedly 12 rejected takings clause and due process challenges to laws that eliminate entire causes of action. 13 In Beretta, for example, the D.C. Court of Appeals held that plaintiffs had no vested property 14 rights in "pending--but not final--causes of action," and upheld a law that eliminated certain 15 causes of action against sellers and manufacturers of firearms and required "immediate[] 16 dismiss[al]" of all such actions, which were pending in district court at the time Congress passed 17 the immunity statute. 940 A.2d at 166-68, 180-81 (rejecting takings claim); see also Ileto, 421 F. 18 Supp. 2d at 1299-1300 (upholding same law against takings claim); Austin, 855 F.2d at 1434, 19 1435-36 (upholding law that eliminated plaintiffs' claims under Fair Labor Standards Act, after 20 they had filed suit). Courts have also consistently upheld laws that eliminate entire causes of 21 action against private defendants and permit claims against only the government. See Salmon v. 22 23 24 25 26 27 28 See Dist. of Columbia v. Beretta U.S.A. Corp., 940 A.2d 163, 176, 180-81 (D.C. 2008); Paramount Health Sys., Inc. v. Wright, 138 F.3d 706, 710 (7th Cir. 1998) (Posner, J.); In re TMI, 89 F.3d 1106, 1113 (3d Cir. 1996); In re Jones Truck Lines, Inc., 57 F.3d 642, 651 (8th Cir. 1995); Salmon v. Schwarz, 948 F.2d 1131, 1142-43 (10th Cir. 1991); Arbour v. Jenkins, 903 F.2d 416, 420 (6th Cir. 1990); Sowell v. Am. Cyanamid Co., 888 F.2d 802, 805 (11th Cir. 1989); Hammond v. United States, 786 F.2d 8, 12 (1st Cir. 1986); Ducharme v. Merrill-Nat'l Labs., 574 F.2d 1307, 1310 (5th Cir. 1978); Battaglia v. Gen. Motors Corp., 169 F.2d 254, 259 (2d Cir. 1948). Government Defendants' Notice of Motion and Motion to Dismiss and Memorandum in Support, McMurray 5 et al. v. Verizon Comm. Inc. et al., 09-cv-0131-VRW (MDL 06-cv1791-VRW). 4 2006) (rejecting takings claim).4/ Schwarz, 948 F.2d at 1142-43; Arbour v. Jenkins, 903 F.2d at 420; Sowell v. Am. Cyanamid Co., 1 888 F.2d at 805; Atmospheric Testing, 820 F.2d at 989; Hammond v. United States, 786 F.2d at 2 12; Ducharme v. Merrill-Nat'l Labs., 574 F.2d at 1310. 3 Furthermore, the very Supreme Court decision recognizing that "a cause of action is a 4 species of property," Logan, 455 U.S. at 428, also acknowledges that Congress may eliminate 5 causes of action so long as it does not disturb final judgments. Logan held that the government 6 may not "deny[] potential litigants use of established adjudicatory procedures" "in a random 7 manner." 455 U.S. at 429, 434. But the Court also emphasized that a legislature "remains free" 8 to enact statutes such as Section 802 that "create substantive defenses or immunities for use in 9 adjudication or to eliminate its statutorily created causes of action altogether . . . ." Id. at 432 10 (emphasis added). The rule, as the D.C. Court of Appeals recently explained in Beretta, is that 11 Congress may not alter "causes of action that have reached final, unreviewable judgment[,] and in 12 that sense have vested[,]" but Congress may modify or eliminate certain other causes of action so 13 long as they are "pending and future." 940 A.2d at 176 (emphasis omitted). The Supreme Court 14 recognized this distinction over one hundred years ago, holding that while a law may not alter a 15 final judgment, "legislation may act on subsequent proceedings, [and] may abate actions pending 16 . . . ." McCullough v. Virginia, 172 U.S. 102, 123-24 (1898); accord New York Cent. R.R. Co. v. 17 White, 243 U.S. 188, 198 (1917); Louisville & Nashville R.R. Co. v. Mottley, 219 U.S. 467, 484 18 (1911). And in its decisions since Logan, the Supreme Court has continued to recognize this 19 distinction, holding that Congress may change the law with respect to pending and future cases, 20 but not with respect to final judgments. See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 227-28 21 22 23 24 25 26 27 28 The Ninth Circuit's decision in In re Aircrash in Bali, Indonesia, 684 F.2d 1301 (9th Cir. 1982), is not contrary to this weight of authority. Bali states, without further explanation, that "claims for compensation are property interests that cannot be taken for public use without compensation." Id. at 1312. The Ninth Circuit has explained that this "postulate[]" was "dictum." Atmospheric Testing, 820 F.2d at 988 n.3. Moreover, the Supreme Court has since emphasized that the takings clause protects only "vested property rights," see Landgraf, 511 U.S. at 266 (emphasis added), and the Ninth Circuit has repeatedly held that a "property right in any cause of action does not vest" until a party obtains "a final unreviewable judgment." Grimesy, Government Defendants' Notice of Motion and Motion to Dismiss and Memorandum in Support, McMurray 6 et al. v. Verizon Comm. Inc. et al., 09-cv-0131-VRW (MDL 06-cv1791-VRW). 5 (1995); see also Beretta, 940 A.2d at 176.5/ Section 802 of the FISA applies only to "pending" actions, and thus does not affect any 1 final, unreviewable judgments. See 50 U.S.C. 1885a(a). Given the weight and uniformity of 2 authority supporting dismissal, it is unsurprising that the plaintiffs themselves have already 3 conceded that they have no claim under the takings clause. The reply to the Government's 4 pending motion to dismiss, which was filed on behalf of the McMurray plaintiffs, and which they 5 joined, concedes that the Ninth Circuit's decision in Atmospheric Testing held that the "Takings 6 Clause did not apply to [a] cause of action that had not been reduced to final judgment . . . ." 7 MDL Plaintiffs' Reply (Dkt. 524) at 17 n.16, 37. 8 III. 9 10 In addition to their takings clause claim, the McMurray plaintiffs claim that Section 802 11 violates the separation of powers doctrine and the due process clause. See Complaint (Dkt. 561 12 Ex. B) at 21-39. These counts largely repeat claims plaintiffs, including the McMurray 13 plaintiffs, made in response to the Government's prior dispositive motion, and fail for the reasons 14 set forth at length in the Government's brief, which are incorporated in full by reference herein. 15 See Corrected United States' Reply (Dkt. 520) at 3-4, 6-15. In particular, contrary to plaintiffs' 16 assertions regarding separation of powers, Section 802 does not mandate legislative dismissal of 17 plaintiffs' claims, nor does it permit the Executive to alter the law or to determine the legality of 18 its own actions. Instead, Congress amended applicable law in a way that affected pending cases, 19 something Congress has done before, and under well-established authority, plainly may do. See 20 e.g., Robertson v. Seattle Audubon Soc., 503 U.S. 429, 440-41 (1992). In addition, plaintiffs' due 21 process claim fails because it is well-established that Congress's creation of retroactive defenses 22 that mandate dismissal of a claim does not violate the due process clause. See Austin, 855 F.2d at 23 1434, 1435-36; see also Fields, 413 F.3d at 955-56; Lyon, 252 F.3d at 1085-87; Atmospheric 24 Testing, 820 F.2d at 989-90; Beretta, 940 A.2d at 173-180. These arguments are outlined at 25 26 27 28 876 F.2d at 743-44; see also cases cited supra at 4-5. Thus, Bali's dictum provides no support for plaintiff's takings claim. Government Defendants' Notice of Motion and Motion to Dismiss and Memorandum in Support, McMurray 7 et al. v. Verizon Comm. Inc. et al., 09-cv-0131-VRW (MDL 06-cv1791-VRW). THE COURT SHOULD DISMISS PLAINTIFFS' REMAINING CLAIMS FOR REASONS OUTLINED IN THE GOVERNMENT'S BRIEFS IN SUPPORT OF ITS PRIOR MOTION TO DISMISS. greater length in the Government's prior brief, and so will not be repeated here. 1 CONCLUSION 2 For the foregoing reasons, the Court should dismiss the second McMurray Complaint 3 (Dkt. 1 Attach. #2 in 09-cv-0131-VRW). 4 5 March 13, 2009 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Attorneys for the Government Defendants 20 21 22 23 24 25 26 27 28 Government Defendants' Notice of Motion and Motion to Dismiss and Memorandum in Support, McMurray 8 et al. v. Verizon Comm. Inc. et al., 09-cv-0131-VRW (MDL 06-cv1791-VRW). Respectfully Submitted, MICHAEL F. HERTZ Acting Assistant Attorney General DOUGLAS N. LETTER Terrorism Litigation Counsel JOSEPH H. HUNT Director, Federal Programs Branch s/ Anthony J. Coppolino ANTHONY J. COPPOLINO Special Litigation Counsel PAUL G. FREEBORNE Trial Attorney s/ Marc Krickbaum MARC KRICKBAUM Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW, Rm. 6102 Washington, D.C. 20001 Phone: (202) 514-4782--Fax: (202) 616-8460 Email: tony.coppolino@usdoj.gov

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