Judge McKeown, in 2011 Opinion, Pointed to Prospect That Those Suing Might Fail to Adduce Evidence Showing Requisite Individual Harm to Themselves
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals has affirmed a summary judgment for the defendants in a 2008 suit against the National Security Agency, then-President George W. Bush, and various top administration officials, alleging widespread warrantless eavesdropping on private communications in the wake of the September 11, 2001, attacks on the United States, holding that the plaintiffs failed to produce evidence establishing standing.
Nearly 10 years ago, a three-judge Ninth Circuit panel held that Carolyn Jewel, suing on behalf of herself and other “ordinary Americans who are current or former subscribers to AT & T’s telephone and/or Internet services,” had established standing—for pleading purposes—to allege an “illegal and unconstitutional program of dragnet communications surveillance.” Its Dec. 29, 2011 precedential opinion, by Circuit Judge M. Margaret McKeown, says:
“In light of detailed allegations and claims of harm linking Jewel to the intercepted telephone, internet and electronic communications, we conclude that Jewel’s claims are not abstract, generalized grievances and instead meet the constitutional standing requirement of concrete injury.”
Alerted to Obstacle
McKeown forewarned, however, that the plaintiffs in Jewel’s action might meet the same fate as the American Civil Liberties Unions did in a suit against the NSA which was capsized by the Sixth Circuit in 2007. She pointed out:
“The ACLU plaintiffs—attorneys and other professionals whose communications with overseas individuals were allegedly impacted—were unable to ‘produce any evidence that any of their own communications have ever been intercepted.’…The court thus faulted them for ‘asserting a mere belief’ that the NSA eavesdropped on their communications without warrants….This failure of proof doomed standing. Ultimately Jewel may face similar procedural, evidentiary and substantive as the plaintiffs in ACLU….”
Reciting some of that language, Tuesday’s memorandum opinion observes:
“That prediction has now come to pass.”
McKeown was one of the judges comprising the panel that rendered the latest decision. The others, who did not participate in 2011, are Judge Ronald M. Gould and Senior Judge Carlos T. Bea.
Upholding the summary judgment granted by District Court Judge Jeffrey S. White of the Northern District of California, the judges said:
“The Jewel Plaintiffs failed to set forth sufficient evidence of standing for each of their claims to survive the government’s motions for summary judgment. Specifically, the Jewel Plaintiffs failed to set forth sufficient evidence of particularized injuries in fact—the standing element in dispute on appeal—demonstrating that the government has interfered with their communications and communications records.”
The 2011 opinion had remanded the case “with instructions to consider, among other claims and defenses, whether the government’s assertion that the state secrets privilege bars this litigation.” Tuesday’s opinion says:
“In view of our determination, we need not consider whether the district court erred in also concluding that the Jewel Plaintiffs’ claims were barred by the state secrets privilege.”
During the course of the litigation, some classified documents that were sought were made public, some were revealed to the plaintiffs but maintained under seal, and others were withheld. At the oral argument session in the case, held on Nov. 2 of last year, McKeown, who presided, cautioned:
“I just want to underscore that we will not be discussing any classified materials this morning.”
Arguing for the plaintiffs was San Francisco attorney Richard R. Wiebe. He protested that Congress has provided in legislation that standing may be established based on confidential documents, yet White “turned that rule on its head” by denying access to documents—ones which, the lawyer asserted, could demonstrate standing—merely upon the government’s assertion of the state secrets privilege.
The opinion sets forth that the plaintiffs’ argument that “they may use classified evidence to establish their standing ignores the fact that it is their ‘burden to prove their standing by pointing to specific facts’ which they have failed to do here.”
The current opinion—in Jewel v. National Security Agency, 19-16066—was the third one rendered by the Ninth Circuit in the case.
On Dec 18, 2015, it issued a precedential opinion, authored by McKeown, dismissing an interlocutory appeal, certified to it by White, from the dismissal of a Fourth Amendment claim.
“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,” McKeown wrote, “we conclude that…certification was not warranted and dismiss the appeal for lack of jurisdiction.”
The case is People v. Jewel, 19-16066.
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