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Case Name Jewel v. National Security Agency NS-CA-0002
Docket / Court 4:08-cv-04373-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 September 18, 2008, AT&T customers filed this class action lawsuit in the U.S. District Court for the Northern District of California, against the United States. The plaintiffs, represented by the Electronic Frontier Foundation and by private counsel, claimed that the federal government's ... read more >
On September 18, 2008, AT&T customers filed this class action lawsuit in the U.S. District Court for the Northern District of California, against the United States. The plaintiffs, represented by the Electronic Frontier Foundation and by private counsel, claimed that the federal government's electronic surveillance program violated the Fourth Amendment, First Amendment, separation of powers, the Foreign Intelligence Surveillance Act ("FISA"), the Wiretap Act, the Electronic Communications Privacy Act or the Stored Communications Act, and the Administrative Procedure Act.

Specifically, the plaintiffs alleged the National Security Agency ("NSA") implemented a massive, indiscriminate, illegal 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 defendants' 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 October 28, 2008, Judge Walker marked this case as formally related to Hepting v. AT&T (NS-CA-0004, in this Clearinghouse). 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 (a href="http://www.clearinghouse.net/detail.php?id=13881">NS-CA-11, in this Clearinghouse). For information about what happened while this case was a part of that multi-district consolidated matter, 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 Shubert v. Obama, see NS-CA-0006, in this Clearinghouse. But in January 21, 2010, Judge Walker dismissed both this case and Shubert v. Obama, because the plaintiffs failed to establish their standing to bring suit -- that is, they failed to establish that they were personally affected by the alleged violation of law. 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 Judge Walker's dismissal decision. 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).

In 2012, Judge Walker retired; the matter was reassigned to District Judge Jeffrey S. White on May 18, 2012. Upon remand, the plaintiffs filed their motion for partial summary adjudication requesting that the district court dismiss the defendants' state secret defense. The U.S. 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 July 23, 2013, Judge White granted plaintiffs' motion for partial summary adjudication, rejecting the government's state secrets defense. However, Judge White also granted the government's 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 government's 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), 2013 U.S. Dist. LEXIS 103009, 2013 WL 3829405.

On July 24, 2013, Judge White granted a motion to relate this case with First Unitarian Church of Los Angeles v. NSA (NS-CA-0003 in this Clearinghouse).

Under the "minimization" rules applicable to Section 215 metadata program, the NSA has been required to destroy all metadata within five years of collection. See, e.g., 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 case, the plaintiffs argued that this data destruction would interfere with their ability to establish the facts needed for their lawsuit. Accordingly, on their request, Judge White entered a temporary restraining order on March 10, 2014, 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; Shubert v. Obama; and First Unitarian Church of Los Angeles v. NSA.

This temporary restraining order directly conflicted with the standing Foreign Intelligence Surveillance Court order 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). To eliminate the conflict, the FISC responded to Judge White's order by granting 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.

In the summer of 2014, Plaintiffs moved for partial summary judgment on their Fourth Amendment Claim, and the defendants responded by also moving for partial summary judgment on the Fourth Amendment Claim.

On February 10, 2015, Judge White denied the plaintiffs' motion for partial summary judgment and granted the defendants' motion for partial summary judgment. Judge White held that the plaintiffs failed to establish a sufficient factual basis to find that they had standing to sue under the Fourth Amendment regarding the possible interception of their Internet communications. Further, even if the plaintiffs could establish standing, the claim must be dismissed because any possible defenses would require impermissible disclosure of state secret information. Jewel v. Nat'l Sec. Agency, No. C 07-00693 JSW, 2015 WL 545925 (N.D. Cal. Feb. 10, 2015). On May 20, 2015, the Court held that its adjudication of this claim is a final determination and no just reason exists for delay in entering final judgment on this claim. The court entered partial judgment and dismissed the claim that the government defendants violated the Fourth Amendment rights of Plaintiffs by copying and searching the contents of plaintiff’s internet communications.

On June 4, 2015, the plaintiffs appealed to the United States Court of Appeals for the Ninth Circuit. On December 18, 2015, the Ninth Circuit 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 that the certification was not warranted because the question of whether the copying and searching of plaintiff’s Internet communications violated the Fourth Amendment was intertwined with several other issues that remained pending in district court, and the interlocutory appeal would only have prolonged final resolution of the case. Each party were to bear its own costs on appeal. Jewel v. Nat'l Sec. Agency, 810 F.3d 62293, Fed.R.Serv.3d 662, 15 Cal. Daily Op. Serv. 13, 344.

On February 19, 2016, Judge White found that in the absence of sovereign immunity, the plaintiffs may state claims under the Wiretap Act and the Stored Communications Act. The District Court thus granted plaintiffs’ motion to lift the stay of discovery on Counts 9, 12, and 15, and that any disputed materials that defendants contend may potentially run the risk of impermissible disclosure of state secret information may be disclosed ex parte for in camera review. On December 16, 2016, the parties filed a joint discovery letter outlining their respective positions on disputed discovery issues.

On April 26, 2017, the FISC issued an order approving changes to the Section 702 Upstream program, including revised minimization procedures which required the NSA to destroy, as quickly as practicable, all raw Upstream Internet communications data acquired on or before March 17, 2017, that existed in all of NSA’s institutionally managed repositories.

At the May 19, 2017 case management conference, Judge White ordered the government defendants to marshal all of their evidence relating to plaintiffs’ standing and to present that evidence to the court, making as much of it public as possible. The defendants’ production of materials was completed on April 1, 2018. On May 7, 2018, plaintiffs filed a motion to obtain access to the classified materials pursuant to 18 U.S.C. Section 2712(b)(4), which was opposed by the government defendants, and subsequently denied by the court on June 13, 2018.

On August 17, 2018, Judge White ordered the parties to file dispositive motions to resolve the threshold legal issues raised by the remaining statutory claims in this matter. On August 24, 2018, the parties submitted a joint discovery letter, and the plaintiffs argued that the court should order the government defendants to respond separately and individually to each request for admission (RFA) with one of the following answers: admit, deny, admit in part and deny in part, or insufficient information to admit or deny after making reasonable inquiry.

On September 7, 2018, the government defendants filed a motion for summary judgment. They argued because of the state secrets privilege and of the statutory privileges established by 50 U.S.C. § 3024(i)(1) and 50 U.S.C. § 3605(a), plaintiffs lacked admissible evidence to establish their standing to maintain their statutory claims. Consequently, the Court lacked subject-matter jurisdiction to consider them. Moreover, they argued that dismissal is required because the case cannot be litigated on the merits without creating an unjustifiable risk of divulging state secrets. On September 28, 2018, the plaintiffs responded, arguing that (1) the government defendant could not meet its summary judgment burden; (2) the public evidence demonstrates plaintiffs’ standing; (3) the undisclosed classified evidence also demonstrates plaintiffs’ standing; (4) section 2712(b)(4) requires the use of classified evidence to decide standing; and (5) this lawsuit may not be dismissed on state secrets grounds.

As of November 2018, the plaintiffs and government defendants are exchanging responses and replies on the above-mentioned points of contention. The case remains ongoing.

Michael Mirdamadi - 11/19/2013
Jessica Kincaid - 02/17/2015
Dawn Lui - 12/02/2018


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Issues and Causes of Action
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Issues
Constitutional Clause
Freedom of speech/association
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 Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Ex Parte Young (Federal) or Bivens
Declaratory Judgment Act, 28 U.S.C. § 2201
FISA Title I Warrant (Electronic Surveillance), 50 U.S.C. §§ 1801-1812
FISA Title IV order (pen register/trap-and-trace), 50 U.S.C. §§ 1841-1846
FISA Title V order (PATRIOT Act § 215, business records or other tangible things), 50 U.S.C. §§ 1861-1862
Defendant(s) United States
Plaintiff Description All present and future United States persons who have been or will be subject to electronic surveillance by the National Security Agency without a search warrant or court order since September 12, 2001
Class action status sought Yes
Class action status granted Pending
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief None yet
Source of Relief None yet
Filing Year 2008
Case Ongoing Yes
Case Listing NS-CA-0003 : First Unitarian Church of Los Angeles v. National Security Agency (N.D. Cal.)
NS-CA-0006 : Shubert v. Obama (N.D. Cal.)
NS-DC-0051 : In re Application of the FBI for an Order Requiring the Production of Tangible Things From [Redacted], BR 14-01 (FISC)
NS-CA-0005 : Center for Constitutional Rights v. Obama (N.D. Cal.)
NS-CA-0004 : Hepting v. AT&T (N.D. Cal.)
NS-CA-0011 : In re National Security Agency Telecommunications Records Litigation (N.D. Cal.)
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
Docket(s)
3:08−cv−04373 (N.D. Cal.)
NS-CA-0002-9000.pdf | Detail
Date: 12/19/2018
Source: PACER [Public Access to Court Electronic Records]
General Documents
Class Action Complaint
NS-CA-0002-0001.pdf | Detail
Date: 09/17/2008
Classified Declaration of Deborah A. Bonanni, National Intelligence Agency
NS-CA-0002-0014.pdf | External Link | Detail
Date: 04/03/2009
Classified Declaration of Dennis C. Blair Director of National Intelligence [ECF# 18-1]
NS-CA-0002-0011.pdf | External Link | Detail
Date: 04/03/2009
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 57] (N.D. Cal.)
NS-CA-0002-0004.pdf | Detail
Date: 01/21/2010
Source: PACER [Public Access to Court Electronic Records]
Opinion [Ct. of App. ECF# 75] (673 F.3d 902)
NS-CA-0002-0005.pdf | WESTLAW| LEXIS | Detail
Date: 12/29/2011
Source: PACER [Public Access to Court Electronic Records]
Plaintiffs' Motion for Partial Summary Judgment Rejecting the Government Defendants' State Secret Defense [ECF# 83]
NS-CA-0002-0019.pdf | Detail
Date: 06/29/2012
Source: PACER [Public Access to Court Electronic Records]
Classified Declaration of James R. Clapper Director of National Intelligence
NS-CA-0002-0012.pdf | External Link | Detail
Date: 09/11/2012
Classified Declaration of Frances J. Fleisch, National Intelligence Agency
NS-CA-0002-0015.pdf | External Link | Detail
Date: 09/11/2012
Plaintiffs' Federal Rule of Evidence Section 1006 Summary of Voluminous Evidence Filed in Support of Their motion for Partial Summary Judgment and Opposition to the Government Defendants' Cross-Motion [ECF# 113]
NS-CA-0002-0003.pdf | Detail
Date: 12/14/2012
Source: Plaintiffs' counsel
AMENDED ORDER (2013 WL 3388503) (N.D. Cal.)
NS-CA-0002-0002.pdf | WESTLAW | Detail
Date: 07/23/2013
Source: Westlaw
Public Classified Declaration of James R. Clapper Director of National Intelligence
NS-CA-0002-0013.pdf | External Link | Detail
Date: 12/20/2013
Unclassified Declaration of Frances J. Fleisch, National Security Agency
NS-CA-0002-0016.pdf | External Link | Detail
Date: 12/20/2013
Government Defendants' Supplemental Brief on Threshold Legal Issues as Ordered by the Court at the September 27, 2013, Status Conference [ECF# 167]
NS-CA-0002-0018.pdf | Detail
Date: 12/20/2013
Source: PACER [Public Access to Court Electronic Records]
Classified Declaration of James R. Clapper, Director of National Intelligence [ECF# 220]
NS-CA-0002-0007.pdf | Detail
Date: 12/20/2013
Source: Office of the Director of National Intelligence
Classified Declaration of Frances J. Fleisch, National Security Agency [ECF# 227]
NS-CA-0002-0008.pdf | Detail
Date: 12/20/2013
Source: Office of the Director of National Intelligence
Order [Granting Motion for Temporary Restraining Order] [ECF# 187] (N.D. Cal.)
NS-CA-0002-0010.pdf | Detail
Date: 03/10/2014
Source: PACER [Public Access to Court Electronic Records]
Classified Declaration of Teresa H. Shea [ECF# 228]
NS-CA-0002-0009.pdf | Detail
Date: 03/17/2014
Source: Office of the Director of National Intelligence
Plaintiffs Brief Re: The Government's Non- Compliance with the Court's Evidence Preservation Orders [ECF# 233]
NS-CA-0002-0006.pdf | Detail
Date: 05/30/2014
Source: PACER [Public Access to Court Electronic Records]
Plaintiffs' Emergency Application to Enforce the Court's Temporary Restraining Order [ECF# 235]
NS-CA-0002-0024.pdf | Detail
Date: 06/05/2014
Source: PACER [Public Access to Court Electronic Records]
Order re Emergency Application to Enforce the Court's Temporary Restraining Order [ECF# 236] (N.D. Cal.)
NS-CA-0002-0025.pdf | Detail
Date: 06/05/2014
Source: PACER [Public Access to Court Electronic Records]
Transcript of Proceedings
NS-CA-0002-0028.pdf | External Link | Detail
Date: 06/06/2014
Opposition to Plaintiffs' Emergency Application to Enforce Court's Temporary Restraining Order [ECF# 243]
NS-CA-0002-0023.pdf | Detail
Date: 06/06/2014
Source: PACER [Public Access to Court Electronic Records]
Plaintiffs' Notice of Motion and Motion for Partial Summary Judgment [ECF# 261]
NS-CA-0002-0027.pdf | Detail
Date: 07/25/2014
Source: PACER [Public Access to Court Electronic Records]
Government Defendants' Opposition to Plaintiffs' Motion for Partial Summary Judgment and Cross-Motion for Summary Judgment on Plaintiffs' Fourth Amendment Claim [ECF# 285]
NS-CA-0002-0021.pdf | Detail
Date: 09/29/2014
Source: PACER [Public Access to Court Electronic Records]
Plaintiffs' Combined Reply in Support of their Motion for Partial Summary Judgment and Opposition to the Government Defendant's Cross-Motion for Partial Summary Judgment [ECF# 294-2]
NS-CA-0002-0020.pdf | Detail
Date: 10/24/2014
Source: PACER [Public Access to Court Electronic Records]
Government Defendants' Reply in Support of their Cross-Motion for Partial Summary Judgment on Plaintiffs' Fourth Amendment Claim [ECF# 299-2]
NS-CA-0002-0022.pdf | Detail
Date: 11/07/2014
Source: PACER [Public Access to Court Electronic Records]
Classified Declaration of Miriam P, National Security Agency, Ex Parte, In Camera Submission [ECF# 300]
NS-CA-0002-0026.pdf | Detail
Date: 11/07/2014
Source: PACER [Public Access to Court Electronic Records]
Order Denying Plaintiff's Motion For Partial Summary Judgment And Granting Defendants' Motion For Partial Summary Judgment [ECF# 321] (N.D. Cal.)
NS-CA-0002-0017.pdf | Detail
Date: 02/10/2015
Source: PACER [Public Access to Court Electronic Records]
Opinion [Ct. of App. ECF# 48] (810 F.3d 622)
NS-CA-0002-0029.pdf | WESTLAW| LEXIS | Detail
Date: 12/18/2015
Source: PACER [Public Access to Court Electronic Records]
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Judges McKeown, M. Margaret (Ninth Circuit) show/hide docs
NS-CA-0002-0005
Walker, Vaughn R. (N.D. Cal.) show/hide docs
NS-CA-0002-0004
White, Jeffrey Steven (N.D. Cal.) show/hide docs
NS-CA-0002-0002 | NS-CA-0002-0007 | NS-CA-0002-0008 | NS-CA-0002-0009 | NS-CA-0002-0010 | NS-CA-0002-0017 | NS-CA-0002-0025 | NS-CA-0002-9000
Plaintiff's Lawyers Antaramian, Aram Vazken (California) show/hide docs
NS-CA-0002-0003 | NS-CA-0002-9000
Bankston, Kevin Stuart (District of Columbia) show/hide docs
NS-CA-0002-0001 | NS-CA-0002-9000
Berkowitz, Benjamin (California) show/hide docs
NS-CA-0002-9000
Blizzard, Paula Lenore (California) show/hide docs
NS-CA-0002-0003 | NS-CA-0002-9000
Cohn, Cindy A. (California) show/hide docs
NS-CA-0002-0001 | NS-CA-0002-0003 | NS-CA-0002-0006 | NS-CA-0002-0024 | NS-CA-0002-0028 | NS-CA-0002-9000
Crocker, Andrew (California) show/hide docs
NS-CA-0002-0028 | NS-CA-0002-9000
Greene, David Allen (California) show/hide docs
NS-CA-0002-9000
Kwun, Michael S. (California) show/hide docs
NS-CA-0002-0003 | NS-CA-0002-9000
Maazel, Ilann M. (New York) show/hide docs
NS-CA-0002-0028
Mackey, Aaron David (California) show/hide docs
NS-CA-0002-9000
Meny, Rachael Elizabeth (California) show/hide docs
NS-CA-0002-0003 | NS-CA-0002-9000
Moore, Thomas Edward III (California) show/hide docs
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Opsahl, Kurt Bradford (California) show/hide docs
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Rumold, Mark Thomas (California) show/hide docs
NS-CA-0002-0003 | NS-CA-0002-9000
Sessions, Justina Kahn (California) show/hide docs
NS-CA-0002-9000
Tassin, Phillip James (California) show/hide docs
NS-CA-0002-9000
Tien, Lee (California) show/hide docs
NS-CA-0002-0001 | NS-CA-0002-0003 | NS-CA-0002-9000
Tyre, James Samuel (California) show/hide docs
NS-CA-0002-0001 | NS-CA-0002-0003 | NS-CA-0002-9000
Walton−Hadlock, Audrey Helena (California) show/hide docs
NS-CA-0002-0003 | NS-CA-0002-9000
Wiebe, Richard R. (California) show/hide docs
NS-CA-0002-0001 | NS-CA-0002-0003 | NS-CA-0002-0019 | NS-CA-0002-0020 | NS-CA-0002-0027 | NS-CA-0002-0028 | NS-CA-0002-9000
Williams, Jamie (California) show/hide docs
NS-CA-0002-9000
Defendant's Lawyers Ahern, Paul Edward (District of Columbia) show/hide docs
NS-CA-0002-9000
Anderson, Caroline J (District of Columbia) show/hide docs
NS-CA-0002-9000
Bayse, Chad (Maryland) show/hide docs
NS-CA-0002-0028
Berman, Julia Alexandra (District of Columbia) show/hide docs
NS-CA-0002-0023 | NS-CA-0002-0028 | NS-CA-0002-9000
Berman, Marcia (District of Columbia) show/hide docs
NS-CA-0002-0028 | NS-CA-0002-9000
Coppolino, Anthony J. (District of Columbia) show/hide docs
NS-CA-0002-0023 | NS-CA-0002-0028 | NS-CA-0002-9000
Dearinger, Bryan (District of Columbia) show/hide docs
NS-CA-0002-0028
Freeborne, Paul Gerald (District of Columbia) show/hide docs
NS-CA-0002-9000
Gilligan, James J (District of Columbia) show/hide docs
NS-CA-0002-0018 | NS-CA-0002-0021 | NS-CA-0002-0022 | NS-CA-0002-0023 | NS-CA-0002-9000
Haas, Alexander K (District of Columbia) show/hide docs
NS-CA-0002-9000
Johnson, Timothy Andrew (District of Columbia) show/hide docs
NS-CA-0002-9000
Patton, Rodney (District of Columbia) show/hide docs
NS-CA-0002-0028 | NS-CA-0002-9000
Whitman, James R. (District of Columbia) show/hide docs
NS-CA-0002-9000
Other Lawyers Brown, Bruce D. (Virginia) show/hide docs
NS-CA-0002-9000
Gellis, Catherine Rachel (California) show/hide docs
NS-CA-0002-9000
Koltun, Joshua (California) show/hide docs
NS-CA-0002-9000
Page, Michael Henry (California) show/hide docs
NS-CA-0002-9000
Siavoshy, Babak (California) show/hide docs
NS-CA-0002-9000
Urban, Jennifer M. (California) show/hide docs
NS-CA-0002-9000

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