Carolyn Jewel v. Nsa , 810 F.3d 622 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CAROLYN JEWEL; ERIK KNUTZEN; No. 15-16133
JOICE WALTON, on behalf of
themselves and all others similarly D.C. No.
situated, 4:08-cv-04373-
Plaintiffs-Appellants, JSW
and
OPINION
TASH HEPTING; GREGORY HICKS,
Plaintiffs,
v.
NATIONAL SECURITY AGENCY;
KEITH B. ALEXANDER, Director, in
his official and personal capacities;
MICHAEL V. HAYDEN, in his
personal Capacity; UNITED STATES
OF AMERICA; GEORGE W. BUSH,
President of the United States, in his
official and personal capacities;
RICHARD B. CHENEY, in his personal
capacity; DAVID S. ADDINGTON, in
his personal capacity; DEPARTMENT
OF JUSTICE; ALBERTO R. GONZALES,
in his personal capacity; JOHN D.
ASHCROFT, in his personal capacity;
JOHN M. MCCONNELL, Director of
National Intelligence, in his official
2 JEWEL V. NATIONAL SECURITY AGENCY
and personal capacities; JOHN D.
NEGROPONTE, in his personal
capacity; MICHAEL B. MUKASEY,
Attorney General; BARACK OBAMA;
ERIC H. HOLDER, JR., Attorney
General; DENNIS C. BLAIR,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted
October 28, 2015—Pasadena, California
Filed December 18, 2015
Before: Michael Daly Hawkins, Susan P. Graber, and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge McKeown
JEWEL V. NATIONAL SECURITY AGENCY 3
SUMMARY*
Jurisdiction / Rule 54(b) Certification
The panel dismissed the appeal for lack of jurisdiction
because the appeal did not meet the requirements of Fed. R.
Civ. P. 54(b) certification, and remanded to the district court
for further proceedings.
The panel concluded that Rule 54(b) certification was not
warranted because the question of whether the copying and
searching of plaintiff’s Internet communications violated the
Fourth Amendment – which was the only issue that the
district court certified as final under Rule 54(b) in a case
involving statutory and constitutional challenges to
government surveillance programs – was intertwined with
several other issues that remained pending in district court
and this interlocutory appeal would only prolong final
resolution of the case.
COUNSEL
Richard R. Wiebe (argued), Law Office of Richard R. Wiebe,
San Francisco, California; Cindy A. Cohn, Lee Tien, Kurt
Opsahl, James S. Tyre, Mark Rumold, Andrew Crocker,
Jamie L. Williams, and David Greene, Electronic Frontier
Foundation, San Francisco, California; Rachael E. Meny,
Michael S. Kwun, Audrey Walton-Hadlock, Benjamin W.
Berkowitz, Justina K. Sessions, and Philip J. Tassin, Keker &
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 JEWEL V. NATIONAL SECURITY AGENCY
Van Nest, LLP, San Francisco, California; Thomas E. Moore
III, Royse Law Firm, PC, Palo Alto, California; Aram
Antaramian, Law Office of Aram Antaramian, Berkeley,
California, for Plaintiffs-Appellants.
Henry C. Whitaker (argued), Douglas N. Letter, and H.
Thomas Byron III, Appellate Staff, Civil Division, United
States Department of Justice, Washington, D.C, for
Defendants-Appellees.
OPINION
McKEOWN Circuit Judge:
This appeal is the second trip to our court for a group of
plaintiffs in their long-running statutory and constitutional
challenges to government surveillance programs. In the last
appeal, we reversed the district court’s dismissal of all claims
on standing grounds and remanded for further proceedings,
including determination of whether the “claims are foreclosed
by the state secrets privilege.” Jewel v. Nat’l Sec. Agency,
673 F.3d 902, 905 (9th Cir. 2011). Several years of further
proceedings have yet to produce a final judgment. Most
recently, the district court dismissed a Fourth Amendment
claim—which was only one among several claims—
regarding Internet surveillance, on the grounds that plaintiffs
lacked standing and that their claim was barred by the state
secrets privilege. Jewel v. Nat’l Sec. Agency, No. C08-
04373, 2015 WL 545925, at *1 (N.D. Cal. Feb. 10, 2015).
The court then certified that single issue as final under
Federal Rule of Civil Procedure 54(b).
JEWEL V. NATIONAL SECURITY AGENCY 5
The government filed a motion to dismiss the appeal for
lack of jurisdiction, arguing that certification was improper
under Rule 54(b). We agree. Our task is to address the
juridical concerns surrounding the appeal of less than a
complete judgment and to “scrutinize the district court’s
evaluation of such factors as the interrelationship of the
claims so as to prevent piecemeal appeals in cases which
should be reviewed only as single units.” Curtiss-Wright
Corp. v. Gen. Elec. Co., 446 U.S. 1, 10 (1980). Because the
Fourth Amendment question is intertwined with several other
issues that remain pending in district court and because this
interlocutory appeal would only prolong final resolution of
the case, we conclude that the Rule 54(b) certification was
not warranted and dismiss the appeal for lack of jurisdiction.
BACKGROUND
This appeal arises out of ongoing litigation concerning
Internet and cell phone surveillance programs the government
began in the aftermath of the terrorist attacks on September
11, 2001.1 In 2008, Carolyn Jewel, Tash Hepting, Gregory
Hicks, Erik Knutzen, and Joice Walton filed a complaint on
behalf of themselves and others similarly situated against the
United States, the National Security Agency (“NSA”), and a
number of high-level government officials in their personal
and official capacities. The complaint included seventeen
counts, raising both constitutional and statutory claims and
seeking injunctive relief and monetary damages. In
summary, the complaint alleges that government officials
1
The Jewel case is one of many similar cases, some of which have been
consolidated under the Multidistrict Litigation provisions of 28 U.S.C.
§ 1407. See Jewel, 673 F.3d at 906 nn.1 & 2; see also Jewel v. Nat’l Sec.
Agency, No. C06-179, 2010 WL 235075, at *4 (N.D. Cal. Jan. 21, 2010).
6 JEWEL V. NATIONAL SECURITY AGENCY
engaged in continuing warrantless surveillance within the
United States that had begun under a secret presidential order.
The “terrorist surveillance program,” some aspects of which
were publicly acknowledged by the government in 2005,
involved collecting data on millions of Internet and cell
phone users. According to plaintiffs, the telecommunications
company AT&T collaborated with the NSA to divert Internet
traffic into secure rooms at AT&T facilities in San Francisco
and to provide customer records to the government. Through
this collaboration, the government allegedly collected data on
cellular telephone communications, text messages, email, and
other forms of Internet communication without a warrant.
Jewel, 673 F.3d at 906.
In 2010, the district court dismissed the action with
prejudice, holding that plaintiffs lacked a sufficiently
particularized injury and therefore lacked standing on all
claims. Jewel, 2010 WL 235075, at *1. On appeal, we
reversed and held that “Jewel’s claims are not abstract,
generalized grievances and instead meet the constitutional
standing requirement of concrete injury. Nor do prudential
considerations bar this action.” Jewel, 673 F.3d at 905. The
case was remanded to the district court “with instructions to
consider, among other claims and defenses, . . . the
government’s assertion that the state secrets privilege bars
this litigation.” Id. at 913–14.
After remand, the district court addressed the interaction
between the state secrets privilege and sovereign immunity as
those issues pertain to the statutory claims under the Foreign
Intelligence Surveillance Act (“FISA”), the Electronic
Communications Privacy Act (“Stored Communications
Act”), the Wiretap Act, and the Administrative Procedure
JEWEL V. NATIONAL SECURITY AGENCY 7
Act. Jewel v. Nat’l Sec. Agency, 965 F. Supp. 2d 1090 (N.D.
Cal. 2013). The district court determined:
• The government’s state secrets privilege does not
compel complete dismissal of the action because
sufficient information regarding the surveillance
program had been made public such that the subject
matter of the suit itself is not a state secret. Id. at
1102–03.
• The “FISA procedural mechanism prescribed under
50 U.S.C. § 1806(f) preempts application of the state
secrets privilege.” Id. at 1103. Title 18 U.S.C.
§ 2712 applies to claims under the Stored
Communications Act and the Wiretap Act, thus
preempting the state secrets doctrine for those claims.
Id. at 1105, 1107–08.
• The damages claims under FISA are barred by
sovereign immunity, but damages are not barred
under the Stored Communications Act or the Wiretap
Act. Id. at 1108.
• Plaintiffs cannot seek injunctive relief for their Stored
Communications Act and Wiretap Act claims because
Patriot Act § 223, amending 18 U.S.C. §§ 2520(a) and
2707(a), impliedly limited authority to sue the United
States for forms of relief other than damages. Id. at
1109.
The district court’s order disposed of eleven of the
seventeen claims and explicitly declined to address any of
the constitutional claims, which included First and Fourth
Amendment challenges to Internet and phone surveillance
8 JEWEL V. NATIONAL SECURITY AGENCY
programs and an alleged violation of the separation of powers
principle. Id. at 1097, 1112. Nor did the court address the
possible defenses, such as qualified immunity, that might be
available to individual defendants. The district court
requested further briefing on the scope of FISA preemption
with regard to the constitutional claims, noting that plaintiffs
had the burden to show standing to sue without risking
impermissible damage to ongoing national security efforts.
Id. at 1112. The court also requested briefing on the “recent
disclosure of the government’s continuing surveillance
activities and the statement by the Director of National
Intelligence that certain information . . . should be
declassified and immediately released to the public.” Id. at
1113.
While the parties were in the process of briefing these
questions, three of the five plaintiffs, Jewel, Knutzen, and
Walton (collectively “Jewel” or the “Jewel plaintiffs”),
moved for partial summary judgment on one aspect of their
Fourth Amendment claim related specifically to Internet
interception because they thought the public record supported
their claim. Jewel specifically limited the scope of the
motion to only one aspect of the Fourth Amendment claim
“[a]t this time.”2 Jewel alleges that the government is
engaging in a dragnet Internet interception program called
2
The motion narrowed the request for relief as follows: “At this time,
plaintiffs do not seek a determination of the government defendants’
liability for: a) past Fourth Amendment violations, including during
periods that those activities were conducted solely under presidential
authority without any Foreign Intelligence Surveillance Court order; b)
past or present Fourth Amendment violations arising from government
activities other than Internet communications, seizure or searching; or c)
past or present violations of statutory and constitutional provisions other
than the Fourth Amendment.”
JEWEL V. NATIONAL SECURITY AGENCY 9
“Upstream” collection, and that this program is an element of
the government’s collection of communications under FISA
§ 702. Under this program, the NSA designates “non-U.S.
persons located outside the United States who are reasonably
believed to possess or receive, or are likely to communicate,
foreign intelligence information.” Jewel, 2015 WL 545925,
at *1. Once specific telephone numbers or email addresses
associated with these individuals are identified, the NSA,
assisted by the telecommunications providers, filters Internet
communications “in an effort to remove all purely domestic
communications” in order to capture designated
communications. Id. at *2. The Jewel plaintiffs contend that
this program constitutes surveillance of private
communications without a warrant or individualized
suspicion, in violation of the Fourth Amendment. Id. The
government has “acknowledged the existence of the
Upstream collection process . . . . [, h]owever, the technical
details of the collections process remain classified.” Id.
In an order denying Jewel’s motion for summary
judgment and granting the government’s cross-motion, the
district court held that plaintiffs failed to establish a sufficient
factual basis for standing to challenge the ongoing Internet
data collection program. Although the court agreed that
Jewel could demonstrate concrete injury if the Internet
interception program operated in the way proffered, “the
evidence at summary judgment is insufficient to establish that
the Upstream collection process operates in the manner in
which Plaintiffs allege it does” and that, based on classified
materials relating to Upstream collection, “the Plaintiffs’
version of the significant operational details of the Upstream
collection process is substantially inaccurate.” Id. at *4. The
court further held that the Fourth Amendment claims “must
be dismissed because even if Plaintiffs could establish
10 JEWEL V. NATIONAL SECURITY AGENCY
standing . . . any possible defenses would require
impermissible disclosure of state secret information.” Id. at
*1.
Granting Jewel’s motion under Rule 54(b), the district
court certified that “adjudication of this claim is a final
determination and that no just reason exists for delay in
entering final judgment on this claim.” Other than a bare
recitation of the rule, the court offered no explanation or
analysis regarding the certification. After Jewel filed this
appeal, the government responded with a motion to dismiss
the appeal for lack of jurisdiction.
ANALYSIS
We begin with the foundational rule that generally we
have jurisdiction to hear an appeal only if it arises from a
final order, and “[a]n order granting partial summary
judgment is usually not an appealable final order under
28 U.S.C. § 1291 because it does not dispose of all of the
claims.” Am. States Ins. Co. v. Dastar Corp., 318 F.3d 881,
884 (9th Cir. 2003) (citing 28 U.S.C. § 1291). An important
exception is found in Rule 54(b), which provides in relevant
part:
When an action presents more than one claim
for relief . . . or when multiple parties are
involved, the court may direct entry of a final
judgment as to one or more, but fewer than
all, claims or parties only if the court
expressly determines that there is no just
reason for delay.
JEWEL V. NATIONAL SECURITY AGENCY 11
The Rule was adopted “specifically to avoid the possible
injustice of delay[ing] judgment o[n] a distinctly separate
claim [pending] adjudication of the entire case. . . . The Rule
thus aimed to augment, not diminish, appeal opportunity.”
Gelboim v. Bank of Am. Corp., 135 S. Ct. 897, 902–03 (2015)
(citations omitted). The Supreme Court has put some meat
on this bare-bones rule. In highlighting the importance of
juridical concerns with piecemeal appeals, the Court
explained the role of a court of appeals in reviewing a Rule
54(b) certification:
The court of appeals must, of course,
scrutinize the district court’s evaluation of
such factors as the interrelationship of the
claims so as to prevent piecemeal appeals in
cases which should be reviewed only as single
units. But once such juridical concerns have
been met, the discretionary judgment of the
district court should be given substantial
deference, for that court is “the one most
likely to be familiar with the case and with
any justifiable reasons for delay.”
Curtiss-Wright Corp., 446 U.S. at 10 (citations omitted).
We review de novo the “juridical concerns”
determination, first asking whether the certified order is
sufficiently divisible from the other claims such that the “case
would [not] inevitably come back to this court on the same
set of facts.” Wood v. GCC Bend, LLC, 422 F.3d 873, 879
(9th Cir. 2005). This inquiry does not require the issues
raised on appeal to be completely distinct from the rest of the
action, “so long as resolving the claims would ‘streamline the
12 JEWEL V. NATIONAL SECURITY AGENCY
ensuing litigation.’” Noel v. Hall, 568 F.3d 743, 747 (9th Cir.
2009) (citation omitted).
The determination regarding Rule 54(b)’s equitable
analysis ordinarily “is left to the sound judicial discretion of
the district court to determine the ‘appropriate time’ when
each final decision in a multiple claims action is ready for
appeal.” Wood, 422 F.3d at 878 (quoting Curtiss-Wright
Corp., 446 U.S. at 8). Although we encourage district courts
to make factual findings and to explain their reasons for
certifying under Rule 54(b) in order to facilitate appellate
review, see Morrison-Knudsen Co. v. Archer, 655 F.2d 962,
965 (9th Cir. 1981), we have held that the “lack of such
findings is not a jurisdictional defect as long as we can
independently determine the propriety of the order.” Noel,
568 F.3d at 747 n.5. Thus, if a district court does not make
any findings or give any explanation, we turn to the record to
discern whether Rule 54(b) certification was warranted.
Here, similar to Noel, the district court did not explain why it
found that no just reason existed to delay entering judgment.
Unlike Noel, however, based on the record before us we
conclude that Rule 54(b) certification was not appropriate.
As in Wood, “[w]e start (and mostly stop) with juridical
concerns.” 422 F.3d at 879. We face the same hurdle
encountered in Wood: “[w]e have no district court finding
. . . about the interrelationship of the claims or issues, and the
effect of the relationship on the likelihood of piecemeal
appeals.” Id. at 880.
The certification order carves out a single claim: “that the
copying and searching of their Internet communications is
conducted without a warrant or any individualized suspicion
and, accordingly, violates the Fourth Amendment.” This
JEWEL V. NATIONAL SECURITY AGENCY 13
claim is but one of seventeen asserted in the complaint. Even
excluding the claims seeking damages under FISA and
injunctive relief under other statutes, which were dismissed
in 2013,3 still undecided are a number of constitutional and
statutory claims relating to both Internet interception and cell
phone surveillance. See Jewel, 965 F. Supp. 2d at 1112–13
(listing the dismissed issues). In the absence of a roadmap in
the certification order, we are left to unscramble how these
complex claims (and the government’s defenses) intersect
and overlap.
The district court observed that “Plaintiffs seek
adjudication as to their Fourth Amendment Claim with regard
only to the NSA’s acknowledged Upstream collection of
communications.” Jewel, 2015 WL 545925, at *2 (emphasis
added). Jewel’s counsel characterized the claim on appeal as
“the entirety of the Fourth Amendment Internet interception
claim against the government.” This effort to carve out a
specific, severable claim obscures the fact that the Internet
interception theory is not the only Fourth Amendment
argument, nor is the Fourth Amendment the only ground for
relief alleged to arise from the Internet interception program,
nor does the appeal encompass all plaintiffs or all defendants.
It quickly becomes apparent that the Rule 54(b) order does
not present final adjudication of a complete claim on the
facts, the theories for relief, or the parties. See Houston
Indus. Inc. v. United States, 78 F.3d 564, 567 (Fed. Cir. 1996)
(“The resolution of individual issues within a claim does not
satisfy the requirements of Rule 54(b).”).
3
Those dismissal orders were not certified under Rule 54(b) and are not
part of this appeal.
14 JEWEL V. NATIONAL SECURITY AGENCY
Jewel’s assertion that the Fourth Amendment Internet
interception claim is factually distinct from the rest of the
litigation is unconvincing. Jewel divides the claims into four
categories, which they suggest are distinct: Internet content,
Internet records (metadata), telephone content, and telephone
records (metadata). All four categories rely on inter-
connected factual allegations that the government
collaborated with telecommunications providers to obtain
information about domestic communications in a manner that
is either unconstitutional or beyond the government’s
statutory authority. Indeed, the complaint presents one
section entitled “Factual Allegations Related to All Counts.”
We conclude that “this case would inevitably come back to
this court on the same set of facts.” See Wood, 422 F.3d at
879.
Apart from the common and intersecting facts, the nature
of the claims makes piecemeal certification inappropriate.
Jewel attempts to bifurcate the Fourth Amendment claims,
focusing this appeal on Internet interception, while leaving
the Fourth Amendment phone records claims in district court.
Notably, however, all five plaintiffs have Fourth Amendment
claims related to their phone records allegations. They also
have damages claims against individual defendants for Fourth
Amendment violations that have not yet been addressed by
the district court.
The carve-out approach suffers from another infirmity—
not even all of the Internet interception claims are raised in
this appeal. For example, the First Amendment claims
remain unresolved in the district court, as do many of the
statutory Internet interception claims. See Jewel, 965 F.
Supp. 2d at 1112. Significantly, the Internet interception
claims rely on overlapping elements of the same allegedly
JEWEL V. NATIONAL SECURITY AGENCY 15
illegal government actions. Whether pleading constitutional
or statutory violations, the “legal right to relief stems largely
from the same set of facts and would give rise to successive
appeals that would turn largely on identical, and interrelated,
facts.” Wood, 422 F.3d at 880. The district court’s
conclusion that the plaintiffs “failed to establish a sufficient
factual basis to find they have standing to sue under the
Fourth Amendment regarding the possible interception of
their Internet communications” cannot be limited to the
narrow Fourth Amendment claim. Jewel, 2015 WL 545925,
at *1. The court rejected Jewel’s standing argument because
plaintiffs failed to describe the Internet interception program
accurately. Id. at *4. It is only logical that this reasoning
raised a potential standing bar for all claims related to the
same government program. The district court further held
that, even if plaintiffs could establish standing to challenge
the Internet interception program, “any possible defenses
would require impermissible disclosure of state secret
information.” Id. at *1 (emphasis added).4 The alternative
state secrets holding presents the same conundrum as the
court’s standing ruling: it is not practical to cabin the ruling
to the Fourth Amendment claim, thus presenting a realistic
risk of duplicative litigation on remaining claims.
A final complication is that not all of the parties are
included in this appeal, nor does this appeal resolve all of the
Jewel plaintiffs’ claims. See Spiegel v. Trustees of Tufts
Coll., 843 F.2d 38, 44 (1st Cir. 1988) (“It will be a rare case
where Rule 54(b) can appropriately be applied when the
4
The district court did not address the relationship between this holding
and its previous determination that FISA § 1806(f) preempts the state
secrets doctrine for Stored Communications Act and Wiretap Act claims.
See Jewel, 965 F. Supp. 2d. at 1108.
16 JEWEL V. NATIONAL SECURITY AGENCY
contestants on appeal remain, simultaneously, contestants
below.”). Only three of the five plaintiffs pursued the Fourth
Amendment motion for summary judgment. Jewel explains
that this is because two of the plaintiffs were not AT&T
Internet customers and, therefore, did not claim that the
government had collected information regarding their Internet
use. Nevertheless, this circumstance fractures the appeal
even further, especially because the facts and legal theories
relied upon by the Jewel plaintiffs to show standing for the
Fourth Amendment argument are not substantially different
from some of the other constitutional and statutory claims,
which apply to all plaintiffs.
In sum, the “practical effect of certifying the [Fourth
Amendment] issue[] in this case is to deconstruct [the] action
so as to allow piecemeal appeals with respect to the same set
of facts.” Wood, 422 F.3d at 880.
Apart from juridical concerns, which counsel against
certification, we are not convinced that this appeal meets the
“no just reason for delay” prong of Rule 54(b). Our
consideration of the single issue served up for interlocutory
review is more likely to cause additional delay than it is to
ameliorate delay problems. See Sussex Drug Prods. v.
Kanasco, Ltd., 920 F.2d 1150, 1156 (3d Cir. 1990) (“The
interlocking factual relationship of the various counts leading
to the likelihood that a subsequent appeal would again seek
review of the issues presented here also suggests that it was
not in the interests of sound judicial administration for the
district court to certify this judgment as final.”).
We are sympathetic to the Jewel plaintiffs’ desire to bring
at least part of this case to a close. But awaiting a decision on
a single claim, which is not a linchpin claim either factually
JEWEL V. NATIONAL SECURITY AGENCY 17
or legally, does not advance this result. In fact, the result of
this appeal has been to bring the district court proceedings to
a halt. Both sides point fingers as to why no final decision
has been reached. We do not take sides in that debate, except
to say that the parties’ and judicial resources would be better
spent obtaining a final judgment on all of the claims, instead
of detouring to the court of appeals for a piecemeal resolution
of but one sliver of the case.
CONCLUSION
Because the appeal does not meet the requirements of
Rule 54(b), we lack jurisdiction over the appeal. The
government’s motion to dismiss is granted, and the case is
remanded to the district court for further proceedings.
CERTIFICATION REVERSED; APPEAL DISMISSED; CASE
REMANDED.
Each party shall bear its own costs on appeal.