University of Michigan Law School
Civil Rights Litigation Clearinghouse
new search
page permalink
Case Name Shubert v. Obama NS-CA-0006
Docket / Court 3:07-cv-00693-JSW ( N.D. Cal. )
State/Territory California
Case Type(s) National Security
Special Collection Foreign Intelligence Surveillance Act -- All Matters
Foreign Intelligence Surveillance Act -- Internet Metadata
Foreign Intelligence Surveillance Act -- Telephony Metadata
Case Summary
On May 17, 2006, American citizens who use the telephone and internet filed a class action lawsuit on behalf of themselves and others similarly situated in the United States District Court for the Eastern District of New York against the United States of America. The plaintiffs, represented by ... read more >
On May 17, 2006, American citizens who use the telephone and internet filed a class action lawsuit on behalf of themselves and others similarly situated in the United States District Court for the Eastern District of New York against the United States of America. The plaintiffs, represented by Emery Celli Brinckerhoff & Abady, asked the court for declaratory, injunctive, and monetary relief, claiming that the defendant's electronic surveillance program violated the Foreign Intelligence Surveillance Act ("FISA"), the Wiretap Act, the Stored Communications Act, and the Fourth Amendment. Specifically, the plaintiffs alleged a massive, indiscriminate, illegal National Security Agency ("NSA") dragnet of the phone calls and email of tens of millions of ordinary Americans since the September 11 terrorist attacks. The core component of the defendant's surveillance program is a nationwide network of sophisticated communication surveillance devices attached to the key facilities of various telecommunication companies that carry Americans' Internet and telephone communications.

On February 2, 2007, this case was transferred to the United States District Court for the Northern District of California. The Multi District Litigation (MDL) Panel then consolidated the case as part of a multi-district litigation consolidation, In Re National Security Agency Telecommunications Records Litigation, NS-CA-11, in this Clearinghouse. For information about what happened while the case was a part of the consolidation see NS-CA-0004. After dismissals of almost all of the cases in the MDL, this case was one of only two cases remaining. The other case was Jewel v. NSA, see NS-CA-0002, in this Clearinghouse.

On January 21, 2010, Judge Walker dismissed this case and Jewel v. NSA because the plaintiffs failed to make out the prima facie allegations necessary to establish standing. Jewel v. National Sec Agency, 2010 WL 235075 (N.D. Cal. Jan. 21 2010). The plaintiffs appealed.

On December 29, 2011, the Ninth Circuit vacated that judgment. Again writing for the Ninth Circuit, Judge McKeown held that the plaintiffs did have standing, and remanded "with instructions to consider, among other claims and defenses, whether the government's assertion that the state secrets privilege bars this litigation." Jewel v. NSA, 673 F.3d 902 (9th Cir. 2011).

Upon remand, the plaintiffs filed their motion for partial summary adjudication requesting that the district court dismiss the defendants' state secret defense. The defendants cross-moved to dismiss on the basis of sovereign immunity for the statutory claims and for summary judgment on the assertion of the state secrets privilege.

On May 8, 2012, the plaintiffs filed a second amended class action complaint and demand for a jury trial against government defendants. Earlier in 2012, Judge Walker had retired, so the matter was reassigned to District Judge Jeffrey S. White on September 17, 2012.

On July 23, 2013, Judge White granted plaintiffs' motion for partial summary adjudication, rejecting the defendants' state secrets defense. However, the Judge White also granted the defendants' motion to dismiss the plaintiffs' claims for damages under FISA and all statutory claims for injunctive relief on the basis of sovereign immunity. Judge White reserved ruling on the Defendants' motions for summary judgment on remaining non-statutory claims (counts 1—4 of the Jewel Complaint and the fourth cause of action in the Shubert Complaint). Jewel v. Nat'l Sec. Agency, 965 F. Supp. 2d 1090 (N.D. Cal. 2013).

On March 10, 2014, Judge White entered a temporary restraining order requiring the preservation of relevant evidence pending the parties' further briefing and the Court's final determination of the preservation issues. In its restraining order, the Court required that the government refrain from "destroying any potential evidence relevant to the claims at issue in this action, including but not limited to prohibiting the destruction of any telephone metadata or 'call detail' records, pending further order of the Court." This order applied to this case, as well as Jewel v. NSA and First Unitarian Church of Los Angeles v. NSA, NS-CA-0003, in this Clearinghouse.

This temporary restraining order directly conflicted with an order to destroy all metadata within five years of collection issued by the Foreign Intelligence Surveillance Court in In re Application of the FBI for an Order Requiring the Production of Tangible Things From [Redacted], BR 14-01, NS-DC-0051, in this Clearinghouse. As a result, the FISC granted temporary relief from the five-year destruction requirement but required that telephony metadata being preserved beyond the five-year limitation not be used by the NSA for any purpose.

As of July 1, 2014, this case is ongoing regarding the plaintiffs' constitutional claims.

Michael Mirdamadi - 11/18/2013
Jessica Kincaid - 07/07/2014


compress summary

- click to show/hide ALL -
Issues and Causes of Action
click to show/hide detail
Issues
Constitutional Clause
Unreasonable search and seizure
Defendant-type
Jurisdiction-wide
General
Record-keeping
Records Disclosure
Terrorism/Post 9-11 issues
Plaintiff Type
Private Plaintiff
Type of Facility
Government-run
Causes of Action Declaratory Judgment Act, 28 U.S.C. § 2201
Bivens
Defendant(s) United States of America
Plaintiff Description A class comprised of all present and future United States persons who have been or will be subject to electronic surveillance by the federal government without a search warrant or court order since September 12, 2001.
Indexed Lawyer Organizations None on record
Class action status sought Yes
Class action status granted Pending
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief None yet
Source of Relief None yet
Form of Settlement None on record
Order Duration not on record
Case Closing Year n/a
Case Ongoing Yes
Case Listing NS-CA-0004 : Hepting v. AT&T (N.D. Cal.)
NS-CA-0002 : Jewel v. National Security Agency (N.D. Cal.)
NS-CA-0003 : First Unitarian Church of Los Angeles v. National Security Agency (N.D. Cal.)
NS-CA-0011 : In re National Security Agency Telecommunications Records Litigation (N.D. Cal.)
NS-CA-0005 : Center for Constitutional Rights v. Obama (N.D. Cal.)
Additional Resources
click to show/hide detail
Links Guest Post: New Resource — Civil Rights Litigation Clearinghouse FISA Archives
Just Security
Posted: Jun. 26, 2014
By: Margo Schlanger
[ Detail ] [ External Link ]

Docket(s)
3:07−cv−00693 (N.D. Cal.) 09/30/2013
NS-CA-0006-9000.pdf | Detail
PACER [Public Access to Court Electronic Records]
General Documents
Class Action Complaint/Demand for Jury Trial 05/17/2006
NS-CA-0006-0007.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Classified Declaration of J. Michael McConnnell, Director of National Intelligence 05/24/2007
NS-CA-0006-0009.pdf | Detail
Classified Declaration of Lt. Keith B. Alexander, Director, National Security Agency 05/25/2007
NS-CA-0006-0011.pdf | Detail
Classified Declaration of Dennis C. Blair Director of National Intelligence 10/30/2009
NS-CA-0006-0010.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Classified Declaration of Lt. Keith B. Alexander, Director, National Security Agency 10/30/2009
NS-CA-0006-0012.pdf | Detail
Order 01/21/2010 (2010 WL 235075) (N.D. Cal.)
NS-CA-0006-0001.pdf | WESTLAW | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Judgment 01/25/2010 (N.D. Cal.)
NS-CA-0006-0002.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order 02/04/2010 (N.D. Cal.)
NS-CA-0006-0003.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order 03/18/2011
NS-CA-0006-0004.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Opinion (reversing dismissal of complaint) 12/29/2011 (673 F.3d 902)
NS-CA-0006-0006.pdf | WESTLAW| LEXIS | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order 07/08/2013 (N.D. Cal.)
NS-CA-0006-0014.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Amended Order 07/23/2013 (2013 WL 3829405) (N.D. Cal.)
NS-CA-0006-0005.pdf | WESTLAW | Detail
Document Source: Westlaw
Unclassified Declaration of Frances J. Fleisch, National Security Agency 12/20/2013
NS-CA-0006-0013.pdf | Detail
Public Declaration of James R. Clapper, Director of National Intelligence 12/20/2013
NS-CA-0006-0015.pdf | Detail
Order [Granting Motion for Temporary Restraining Order] 03/10/2014 (N.D. Cal.)
NS-CA-0006-0008.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order Denying Plaintiffs' Motion for Partial Summary Judgment and Granting Defendants' Motion for Partial Summary Judgment 02/10/2015 (2015 WL 545925) (N.D. Cal.)
NS-CA-0006-0016.pdf | WESTLAW | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Judges McKeown, M. Margaret (Ninth Circuit)
NS-CA-0006-0006
Walker, Vaughn R. (N.D. Cal.)
NS-CA-0006-0001 | NS-CA-0006-0003
White, Jeffrey Steven (N.D. Cal.)
NS-CA-0006-0005 | NS-CA-0006-0008 | NS-CA-0006-0014 | NS-CA-0006-0016 | NS-CA-0006-9000
Monitors/Masters None on record
Plaintiff's Lawyers Brinckerhoff, Matthew D. (New York)
NS-CA-0006-0007 | NS-CA-0006-9000
Cohn, Cindy A. (California)
NS-CA-0006-9000
Maazel, Ilann M. (New York)
NS-CA-0006-0007 | NS-CA-0006-9000
Pulver, Adam R. (District of Columbia)
NS-CA-0006-9000
Defendant's Lawyers Ahern, Paul Edward (District of Columbia)
NS-CA-0006-9000
Berman, Marcia (District of Columbia)
NS-CA-0006-0015 | NS-CA-0006-9000
Coppolino, Anthony J. (District of Columbia)
NS-CA-0006-9000
Haas, Alexander K (District of Columbia)
NS-CA-0006-9000
Whitman, James R. (District of Columbia)
NS-CA-0006-9000
Other Lawyers None on record

- click to show/hide ALL -

new search
page permalink

- top of page -