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United States Court of Appeals For The Ninth Circuit
United States Court of Appeals For The Ninth Circuit
United States Court of Appeals For The Ninth Circuit
FOR PUBLICATION
No. 15-16133
D.C. No.
4:08-cv-04373JSW
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
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SUMMARY*
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 &
*
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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 courts 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. Natl 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
claimwhich 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. Natl Sec. Agency, No. C0804373, 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).
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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. Natl Sec.
Agency, No. C06-179, 2010 WL 235075, at *4 (N.D. Cal. Jan. 21, 2010).
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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.
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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
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Those dismissal orders were not certified under Rule 54(b) and are not
part of this appeal.
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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.
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This Court has filed and entered the attached judgment in your case.
Fed. R. App. P. 36. Please note the filed date on the attached
decision because all of the dates described below run from that date,
not from the date you receive this notice.
The mandate will issue 7 days after the expiration of the time for
filing a petition for rehearing or 7 days from the denial of a petition
for rehearing, unless the Court directs otherwise. To file a motion to
stay the mandate, file it electronically via the appellate ECF system
or, if you are a pro se litigant or an attorney with an exemption from
using appellate ECF, file one original motion on paper.
Petition for Panel Rehearing (Fed. R. App. P. 40; 9th Cir. R. 40-1)
Petition for Rehearing En Banc (Fed. R. App. P. 35; 9th Cir. R. 35-1 to -3)
(1)
A.
B.
A change in the law occurred after the case was submitted which
appears to have been overlooked by the panel; or
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(2)
See Advisory Note to 9th Cir. R. 40-1 (petitions must be received on the
due date).
(3)
Statement of Counsel
(4)
Form & Number of Copies (9th Cir. R. 40-1; Fed. R. App. P. 32(c)(2))
The petition shall not exceed 15 pages unless it complies with the
alternative length limitations of 4,200 words or 390 lines of text.
An answer, when ordered by the Court, shall comply with the same length
limitations as the petition.
If a pro se litigant elects to file a form brief pursuant to Circuit Rule 28-1, a
petition for panel rehearing or for rehearing en banc need not comply with
Fed. R. App. P. 32.
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The Bill of Costs must be filed within 14 days after entry of judgment.
Ninth Circuit Rule 39-1 describes the content and due dates for attorneys fees
applications.
All relevant forms are available on our website at www.ca9.uscourts.gov under Forms
or by telephoning (415) 355-7806.
Petition for a Writ of Certiorari
If there are any errors in a published opinion, please send a letter in writing
within 10 days to:
Thomson Reuters; 610 Opperman Drive; PO Box 64526; St. Paul, MN 551640526 (Attn: Jean Green, Senior Publications Coordinator);
and electronically file a copy of the letter via the appellate ECF system by using
File Correspondence to Court, or if you are an attorney exempted from using
the appellate ECF system, mail the Court one copy of the letter.
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Form 10. Bill of Costs ................................................................................................................................(Rev. 12-1-09)
v.
The Clerk is requested to tax the following costs against:
Cost Taxable
under FRAP 39,
28 U.S.C. 1920,
9th Cir. R. 39-1
REQUESTED
(Each Column Must Be Completed)
No. of
Docs.
Pages per
Doc.
TOTAL
COST
Cost per
Page*
ALLOWED
(To Be Completed by the Clerk)
No. of
Docs.
Cost per
Page*
Pages per
Doc.
TOTAL
COST
Excerpt of Record
Opening Brief
Answering Brief
Reply Brief
Other**
TOTAL: $
TOTAL: $
* Costs per page: May not exceed .10 or actual cost, whichever is less. 9th Circuit Rule 39-1.
** Other: Any other requests must be accompanied by a statement explaining why the item(s) should be taxed
pursuant to 9th Circuit Rule 39-1. Additional items without such supporting statements will not be
considered.
Attorneys' fees cannot be requested on this form.
Continue to next page
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Form 10. Bill of Costs - Continued
I,
, swear under penalty of perjury that the services for which costs are taxed
were actually and necessarily performed, and that the requested costs were actually expended as listed.
Signature
("s/" plus attorney's name if submitted electronically)
Date
Name of Counsel:
Attorney for:
, Deputy Clerk