may please the court i'm hoping to reserve two minutes of these two minutes for rebuttal the appeal should be dismissed for lack of jurisdiction or to related to your i'm henry whittaker your honor and i'm appearing on behalf of the defendants the government dependent on behalf of department justice the appeal should be dismissed for lack of jurisdiction for two related but distinct reasons first the partial summary judgment order that is on appeal did not dispose of the single unitary claim as is required for to for there to be a valid fifty four b c that's because only three of the pointers are involved in this personal dismissal or for alleged government conduct that is that if i had they limited their fourth amendment claim to what's been called the upstream theory i'd be limited to that no no your honor they have not they have at least communications but right maybe i wasn't quite precise enough i was asking whether under the fourth amendment they had limited their claim to the upstream aspect of the surveillance no there are other aspects of the fourth amendment claim that are pending in district court your honor for example the plaintiffs are also challenging the government's alleged surveillance activities under the presidential surveillance program which is another aspect of their fourth amendment claim that remains pending in district court so that you guess there are other fourth amendment theories in addition to that there are other fourth amendment alternative theories of liability that remain pending in district court both as to upstream and as of the presidential surveillance program for example there are not at least nine individual capacity descendants that are also still in district court and of course there would be a qualified immunity issue that would be arise under the fourth amendment if those claims were to proceed i mean what the district court adjudicate is but tiny tiny sliver of a massive case of a massive sprawling challenge to multiple aspects of the government's surveillance activities it is it is it's ignorance position that these specific arguments might have been raised on the merits and will be capable of appeal once there's a final judgment or additional partial judgments yes that they would they could be eventually this potentially eventually the subject of  argue that there's any bar as to these particular arguments once there's finality correct if there's a final judgment your honor is of course the point it's going to feel whatever whatever whatever they like now i will say this i mean th the idea that that they would be entitled to judgment out right on on their on any aspect of their claim would first have to it first have to clear a threshold state secrets problem as to all of their claims and indeed court adjudicated the partial final summary judgment motion that is up on appeal the district court had before it fully briefed and ready to argue a number of threshold issues before it one of which was whether the plaintiff could establish standing as to any of their claims without resort to protect the national security information and certainly if the district court dismissed the claims as to the government at least i mean that would be obviously a much stronger case for an immediate well if you if the ninth circuit were to accept the appeal and if it were determined that these plaintiffs have standing i assume that the state secrets would be on the table as a defense so i am interested in your comment on how the government state secrets position these of the the upstream fourth amendment claim relates or doesn't relate sir in a relates to the other pending claims that are still in the district court particular as to their the quote internet interception claims that as upstream that remain pending in the court of appeals but also as to the past alleged activities and of the presidential surveillance program we have a that those claims implicate a variety of protected national security information concerning sources and methods such as the identities of the providers involved such as the precise mechanics operational mechanics of how these various programs work those assertions and the issues they touch upon cut across virtually the entire case so there's no way that the issues the district court if you take it in the partial summary judgment order are separate and distinct from the rest of the case that not that he grants i wonder if you would let me know how you read the district court's order one way to read it is that there are say that an alternative holding that even if the plaintiffs have standing the state secrets doctrine would bar the fourth amendment claim but another way to read it is that the discussion of state secrets pertains to the stand helped two things which is how we argued the motion blow first that the plaintiff had failed to establish evidence sufficient at the summary judge for the summary judgment stage of what the asian to establish their standing in and second even if they had  established their standing on the public record that the state secrets doctrine in any event would preclude living further litigation of that particular plan so if we were to accept the appeal how would how would we have to deal with the alternative ground if if at all if you were well if the court were to hold that they had not stab establish standing on the basis of the public record and i think the court would have to grapple necessarily have to grapple well and then the court held that based on this public allegations they had stated a violation of the fourth amendment the court would then have to reach the state secrets doctrine but i don't and i think that's one reason why that the the appeal at this juncture is premature because again the standing issue even the threshold question of standing is also that runs throughout the legation and what's going to happen if the court hears the appeal and if the government wins on standing what's going to happen is the plaintiffs are going to say no no no this court's decision does not control as all these other claims based on some factual distinction and that's the whole point of rule fifty four b is that the court should have related it substantially related factual and legal issues all before it so it can result in one appeal not in multiple successive appeals related legal and factual issues and the second prong on the interlocutory appeal that we look at of course is delay and the district court cited included the federal rule to that effect this case has been here already once and it's been in the district court in various forms for quite some time so i'm interested in your comments on why what has been a fairly long and torturous path for this case why some of it shouldn't come to an end or at least to a decision and what the government's position is on the well i think your honor that an immediate appeal now would only exacerbate not not produce that the lay because again the appeal that the appeal will not necessarily resolve to be the court does not have before it the closely related claims that remain pending in district court for the resolution of those closely related claims is going to remain somewhat of an open issue so i think at a minimum the the most expeditious way for this litigation to proceed would be for the district court to first figure out what is the a set of the partial summary judgment order on the rest of the case and one answer might be and i think it's the answer obviously that we would favor is that the entire litigation cannot proceed without resort to state secrets and what has happened in the interim i mean the effect of that of the fifty four b ser to certain certification on this tiny sliver of the case has stopped the district courts litigation in its tracks and so i think the appeal if anything has exacerbated the very delay that your honor points to and basically what's going on in this case your honor is that the plaintiffs are trying to have their cake and eat it too what they are trying to do is have an immediate appeal on this tiny slice of the case and while leaving all of their district court options open the event they lose the appeal the district court thought that wasn't such a bad idea right the court who's now overseeing all of these multiple claims well i'm not sure we really know what exactly this report thought your honor given that it entered the fifty four district certification in one sentence without any having any supporting findings and reasoning now could i ask you about that i was maybe somewhat confused in the briefing at the whether the government suggesting there's not enough findings it doesn't meet some of the past cases and therefore that the district court gets a do over to make the findings or just your saying no there should be no fifty four b situations in our motion de novo without deference to the district court but if the court were to disagree with that i think at a minimum in the end in the alternative that we have we have this alternative argument that the court should you know at least at a bare minimum before we have an immediate honor on this record you absolutely can conclude that it would not is there anything now let's just say that the appeal is not accepted the fifty for the certification is not depends depends on what exactly that final judgment looks like i mean certainly we think that there is no further factual issue or discovery that would be necessary for the district court to dismiss the entire case for as barred by the state secrets privilege and that's what we've been urging the district closely related legal and factual issues of the garden appeal and so the appeal should be dismissed around as i see that i have a minute left in my time and i do yesterday for the questions i would like to have a little bit of rebuttal possible in may we have quite a few questions you have a little bit of time court i'm richard we before the plaintiff here was the government has been conducting its mass internet surveillance for the past fourteen years if we're correct that's an ongoing fourth amendment violation and every day causes continuing harm not just to the plane of spec to millions of other americans we've been seeking a ruling on this claim since two thousand and eight when we filed the complaint and all that time the harm has continued the district court ruled on plaintiffs claim but like this court it's recognized that this is an extraordinary case and it in our judgment so that this claim could be received the speediest review possible by this court just let me ask you to comment specifically on two assertions that i understand least as i understand it the government's lawyer has made as i understand it he is arguing that on the fourth amendment claim only some of the plaintiffs have judgment in their favor and furthermore that with respect to these same plaintiffs they have other fourth amendment claims surveyed it is not a complete ruling on either a set of parties or a set or in a complete claim what is your response to that yes your honor that's are two points i wanted to clarify for the court because they are important first of all these three planets are the only plaintiffs with fourth amendment internet interception claims now we have two categories the fourth amendment claims we have it the other  you know the successor in interest to one of them and happening to they also have telephone claims and these plaintiffs also have telephone claims that's what i was going to point out your honor we have two categories the fourth amendment claims we have the internet interception claims and the phone records claims phone records claims are based on a completely different set of facts on the internet interception claims are based on in this case eighteen t s cooperation with the splitter is this court is familiar with from the prior opinion a drought that the phone records claims are similar to those that are pending before i think at least two members of this panel in the smith the obama case and i believe as you know from that that's a completely different situation where it's not a question of the phone company intercepting it's a question of the government going to the phone records to the phone companies and receiving the records in bulk let me ask you to cut to the chase and that's with respect to the city state secrets defense  what i'd like to have clarified here is why if if ultimately we had to look at the state secret defense and look at the classified documents plus the publicly available documents why then wouldn't both some of that law and many of those facts also be applicable to the not only the fourth amendment remaining claims but some of the statutory claims i think it may well be your honor and i think that's a reason arguing in favor of this court taking to the peel to provide clarity and guidance for the proceeding now in other words you're saying that in fact these are overlapping claim factually and this one doesn't stand this fourth amendment upstream internet interception doesn't really stand in a solitary situation let's be clear on what were i understand there's two different claims based on some similar some different factual but you're saying let's just set the telephone aside but with respect to state secrets issues there as you as i understand you're telling me there is overlapping evidence on the claims both this fourth amendment claim and the remaining statutory claims that's what i wanted to clarify i was referring just to the internet interception claims i think the state secrets issues on the phone records would be quite different among other reasons that the been a wealth of government admissions relating to that program and state secrets as this panel well knows is applied on a case by case basis well let me ask you this that it is the so called upstream side of claims limited to the fourth amendment or do some of your other claims such as wiretap packed claim  the first amendment claim and some of the others also incorporate the upstream theory we do have internet interception claims under the fourth amendment under the first amendment appropriate to adjudicate what really is a piece of a defense to a whole bunch of related things he even if all the technicalities of the rule are m you're asking why it is a sufficiently intertwined that we shouldn't await a final judgment or any partial judgement at least as to all interception claims and all parties on both claims with respect to state secrets if the state secrets the issues are distinct from the records claims that may be another issue but it sounds like  of claims and issues that go far beyond this piece but you're presenting to us now first of all i think it's important to keep in mind the legal standard in the fact that both the supreme court and this court have said that it's it's not a bar to a fifty four b judgment to have overlapping claims and to have a case where many claims arise out of the same transaction in this particular case addressing your question i think it does make sense because first of all we we have the fact of the ongoing harm to the plaintiffs were correct that this is a fourth amendment violation we're looking at at least three years or more of litigation down the road and i think it's also important to realize that that's true of any case that isn't really necessarily the touchstones i the i think they're number the facts to first of all when the fourth amendment claim comes back to you it's going to be in the same past year with the same evidence as it is now so nothing will have been gained by that delay in terms of deciding the fourth amendment claim however that distinguishes it from most cases where in an ideal world people would like at least a yes no yes or no whether this part of their case is an up or down i'm not sure what makes let me tell you your honor and it actually gets back to one of your questions to the government about what what other facts in discovery might occur in the in the district court on first of all discovery has been stated since the beginning in this case it has been no every so far it's important for this court to be aware that the district court has actually put the fourth amendment claim and the statutory claims on two different procedural tracks and thirteen ruling from the district court i don't want to interrupt but i do want to understand one thing as to these procedural tracks with statutory and other claims to the first amendment claims get grouped with the fourth amendment claims under this procedural dichotomy what the district court has apparently done it's it's it's rule that eighteen zero six f applies to the press to the statutory claims we argued as part of our fourth amendment motion that to the extent there is state secret issues eighteen zero six f should apply to the const to constitutional claims as well the district court rejected our position that we could decide the fourth amendment claims we still have the first amendment claims under the constitution was the statutory right they still have to be decided that's right your honor but by deciding the fourth amendment claim among other things you would be deciding whether or not eighteen zero six f for the state secrets privilege applies to constitutional claims and that would provide clarity for the district court doesn't really make sense to the district court to set the statutory claims down the eighteen zero six f road if if discord is later going to rule oh the fourth amendment claim should have gone down that road to in my correct and understanding that neither the twenty thirteen order nor the more recent order dealt with the first amendment claims that's correct ok so they're just hanging out there with no court order of any sort as to any correct yeah and i did want to get back to your question just so we're absolutely clear on what claims are what fourth amendment claims are present here this is the entirety of plaintiffs of all plaintiffs fourth amendment internet interception claims the two plaintiffs who were not moving parties were never a team to customers they are not pursuing fourth amendment internet interception claims as for the past the now discontinued president surveillance program the p s p program no one has a fourth amendment claim to that and the city of los angeles fears is lions you can't seek relief for a constitutional violation that's been discontinued before you filed your complaint that's just a basic issue so nobody's got fourth minute claims against the government defendants for p s p violations you do have for the many claims against individual defendants but that's going to be subject to the the district court has stayed all claims against individual defendants and obviously of the government noted will be subject to defense defenses and all kinds of other proceedings which are involved in our claims against the government if you went back to the district court now on what remains to be done to get a final judgment there does remain a lot to be done we have for example all the phone records on the claims and it's again appears district court is waiting for some hopeful clarity you talking about the fourth amendment and first amendment phone records claims and statutory we have a whole again those arise out of separate facts it's a whole separate category of claims both constitutional and statutory but the some of these have already been dismissed having the certain claims have been dismissed to the extent we were seeking injunctive enforcement of statutes against government yes and the damages claims are partially dismissed the feis the damage claim against the government was dismissed and they haven't you haven't had a ruling then on anything under the first amendment or the wiretap act is that right not on i'm not on the merits not a so if i you know i'm in sort of twenty five words or less if it's possible in this case when it goes back is the posture such that do want to proceed down the eighteen zero six f road with the statutory claims so it's it's not a matter of a quick round trip back to the district court and back here it's if if all the claims need to be resolved that is going to be at least three years if not longer it's been four years since oh yes do i understand you to say that discovery was stayed at the outset yes we have not had a day of which we've been allowed to permit discovery and obviously discovery is one of the the the things that section eighteen zero six f is supposed to allow that's the triggering event of it and so we would need to  start that process and as i said it makes sense to know at the beginning of that process whether the constitutional claim should be going down that road or not and that's an answer that only this court can give us this case  back to the district court on the standing after december two thousand and eleven correct that's correct your honor and then it was in the district court for two years before the the fifty four b stayed discovery where we're powerless to proceed with discovering till the district court lets us plan or stand that so you're saying that none of we are best we have none of the remaining things can be resolved because the government says well really the plane of could t up these other issues on a legal basis and get a decision but it or they don't want to is that correct or incorrect let me tell you your honor exactly the reason why we brought the fourth amendment summary judgment motions separately was because we thought this is the one claim we can go forward with only our public evidence that's all we've got now that's all the the district court is is permitting us at this point so let's move the case forward this is the one avenue we have to go  down let's take it the district court decided it decided the entirety of our fourth amendment internet interception claims against the government those are all that talk in this judgement and we brought it to this court had before and was poised to decide threshold legal question which would have resolved this case when plaintiff filed their partial summary judgment the case is absolutely right for a legal resolution on the state secrets issue if the case goes on to district court well if i know this is a hypothetical but were were this to have been a ruling on all of the internet interception claims as distinct from the think there's one state secrets privilege assertion in this case for all the claims and so i do but it is a fact based determination correct and it's possible that one examines the classified documents and hypothetically determines that state secrets claims applies to the evidence necessary to prove claims a b and c but claims d e don't fall in that am but so no state secrets defense two different outcomes on different claims it's certainly theoretically possible your honor but i think it's also fair to say that the question for the financial the overlap that this court indicated in the wood case that is really the standard this court should apply in deciding whether the sixty four d d certification was appropriate so just in the second point real quick point i don't think it's accurate to say that it just looks at this case on two different tracks the statutory case claims in the constitutional claims i mean we have asserted that the state secrets privilege itself would preclude any kind of adjudication under eighteen zero six f because what plainest need to show as a threshold matter for that procedure to even be appropriate is that they are an aggrieved party so we have a variety of legal arguments about why the case is precluded by the state secrets doctrine even assuming the district court's prior ruling six ruling since it was not mentioned east as to this piece of a horseman my client exactly and so we need to figure out right and that's that's exactly the point your honor we don't know yet what the implications of that summary judgment or partial summ rest of the case and that's teed up and ready for resolution and district court thank you counsel the motion just argued is submitted for decision and we appreciate very much helpful arguments from both coun