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ROSS C. ANDERSON (#0109) OF COUNSEL, WINDER & COUNSEL, P.C. 460 South 400 East Salt Lake City, UT 84111 Telephone: (801) 322-2222 Facsimile: (801) 322-2282 randerson@winderfirm.com
Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION

MARY JOSEPHINE (JOSIE) VALDEZ; HOWARD STEPHENSON; DEEDA SEED; DANIEL DARGER; WILLIAM GRANT BAGLEY, and THOMAS NELSON HUCKIN, on behalf of themselves and all others similarly situated,

COMPLAINT FOR CONSTITUTIONAL, COMMON LAW, AND STATUTORY VIOLATIONS, SEEKING DAMAGES, DECLARATORY, AND INJUNCTIVE RELIEF

Plaintiffs,

PROPOSED CLASS ACTION

v.

JURY DEMANDED

NATIONAL SECURITY AGENCY; FEDERAL BUREAU OF INVESTIGATION; GEORGE W. BUSH, in his personal capacity; MICHAEL V. HAYDEN, in his personal capacity; RICHARD B. CHENEY, in his personal capacity; DAVID ADDINGTON; DOES #150, inclusive,

Case No. _2_:_1_5_-_cv_-_0_0_5_8_4_-_R_JS Judge ___R_o_b_e_r_t_J_. _S_h_e_lb_y___

Defendants.

COMPLAINT 1. Plaintiffs, on behalf of themselves and a class of similarly situated persons, bring this action
and, demanding trial by jury, allege upon personal knowledge and belief as to their own acts, and upon information and belief as to all other matters, as follows:

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PRELIMINARY STATEMENT 2. Through this case, Plaintiffs challenge gross criminality and misconduct prohibited by
federal surveillance statutes, the Utah Constitution, the United States Constitution, and federal statutes, in which the National Security Agency (“NSA”) and Federal Bureau of Investigation (“FBI”) engaged, with the authorization and encouragement, following the request of Michael V. Hayden (“Hayden”), of then-President George W. Bush (“Bush”), then-Vice-President Richard B. Cheney (“Cheney”) and Cheney’s attorney, David Addington (“Addington”), in blatant and knowing violation of the Fourth Amendment to the United States Constitution and the Foreign Intelligence Surveillance Act (“FISA”), which was passed by Congress in 1978 to prevent the very sorts of abuses and violations of privacy at issue in this matter. 3. Among the unlawful and unconstitutional acts by Bush, Cheney, and Addington, at the urging of Hayden, were the authorization of the NSA and others in the Executive Branch to engage in widespread, indiscriminate communications surveillance, interception, and analysis, without warrants and without probable cause. 4. Although Bush was President of the United States at the time, although Cheney was VicePresident of the United States at the time, and although Addington was legal counsel to the Vice-President at the time, they had no legal authority whatsoever to authorize surveillance that so clearly was in violation of the Fourth Amendment to the United States Constitution and FISA. In fact, under FISA, every instance of the surveillance purportedly authorized and encouraged by Bush, Cheney, and Addington, all of which was sought and requested by Hayden, was a felony. 5. The expressed views of Bush, Cheney, and Addington that the Executive Branch, and the President in particular, were not bound by laws passed by Congress because of the national
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security situation at the time, were contrary to the core principles of our constitutional republic, the rule of law, the constitutional system of checks and balances, and the rights of people in the United States to privacy and to freedom from unreasonable searches and seizures. In fact, Bush, Cheney, Addington, Hayden, and other agents of the Executive Branch were not above the law and, hence, acted completely outside their authority and outside the Constitution in authorizing wholesale spying by the federal government on people in the United States. 6. In mid-December 2005, it was disclosed that then-President Bush, since October 2001, had authorized and ordered the NSA, in a program known within the NSA as “Stellar Wind” and within the executive branch as “the President’s Surveillance Program” or simply as “the Program,” to engage in widespread, warrantless, unconstitutional, felonious surveillance of email, text, internet, and telephone communications in the United States. Since then, it has been disclosed that then-Vice-President Cheney and his legal counsel Addington were instrumental in authorizing and encouraging the illegal and unconstitutional surveillance, with Addington drafting a secret written authorization for NSA Director Hayden to keep in his safe. 7. Bush, Cheney, and Addington well knew that their authorization and encouragement of widespread, warrantless surveillance of communications in the United States—without any showing of probable cause to believe a crime had been, or was about to be, committed by any of the parties to the communications—were unconstitutional and in violation of applicable federal statutes. Hence, their authorizations and encouragement of the illegal and unconstitutional surveillance were willful and intentional, and were committed with criminal intent. Bush demonstrated several times, after he had ordered, authorized, and encouraged the illegal surveillance, that he knew such surveillance was unlawful and unconstitutional. For instance, Bush made the following statements about constitutional
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and other legal requirements he knew he had already violated with respect to the surveillance of communications:
• On April 19, 2004, Bush deceitfully implied to the American people that his administration was complying with the warrant requirement of the Constitution and FISA, as he described a legal requirement for a wiretap as follows:
You see, what that meant is if you got a wiretap by court order – and, by the way, everything you hear about requires court order, requires there to be permission from a FISA court, for example. • The next day, April 20, 2004, Bush deceptively led the public to believe that constitutional requirements for surveillance were being followed, as he recognized the constitutional and other legal requirements he had secretly, consistently, and blatantly violated for two and one-half years at that point, stating:
It requires – a wiretap requires – a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so. It’s important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland because we value the Constitution. • Likewise, on July 20, 2005, Bush admitted to legal standards he knew he had grossly violated, as follows:
The Patriot Act helps us defeat our enemies while safeguarding civil liberties for all Americans. The judicial branch has a strong oversight role in the application of the Patriot Act. Law enforcement officers need a federal judge’s permission to wiretap a foreign terrorist’s phone, or to track his calls, or to search his property. Officers must meet strict standards to use any of the tools we’re talking about. And they are fully consistent with the Constitution of the United States.
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8. The NSA, in conjunction with the FBI, planned and implemented a mass warrantless program—for which there was no probable cause, completely outside the Constitution and outside of any applicable federal statutory laws, including FISA, the Wiretap Act, and the Stored Communications Act—in which blanket surveillance was attempted and achieved during a period preceding the commencement of the 2002 Salt Lake Winter Olympic Games and throughout the period of the Games, from February 8, 2002 (Opening Ceremony) through February 24 (Closing Ceremony), over everyone within designated geographical areas, including Salt Lake City, Utah, and the areas including and in the vicinity of all Olympic venues. That surveillance included the interception and key-word spotting analysis of the contents of every text message sent and received, every email sent and received, and information reflecting the time and length of, and telephone numbers involved in, every telephone conversation involving any person within the areas subjected to the blanket surveillance. In some instances, people or telephone numbers were targeted by the NSA and FBI and telephone conversations involving such targeted telephone numbers were illegally and unconstitutionally recorded and subjected to analysis, without a warrant and without probable cause.
9. In light of the practice and philosophy of the NSA to horde everything obtained through surveillance, Plaintiffs believe that the communications illegally and unconstitutionally subjected to surveillance, interception, and key-word spotting analysis are presently unlawfully stored by the NSA, subject to unlawful access at any time in the future. JURISDICTION AND VENUE
10. This Court has subject matter jurisdiction over the federal claims pursuant to 28 U.S.C. § 1331 and 5 U.S.C. § 702.
11. This Court has supplemental jurisdiction over the state claims pursuant to 28 U.S.C. § 1367.
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12. Defendants have sufficient contacts with this district generally and, in particular, with the events described herein, that Defendants are subject to the exercise of jurisdiction of this Court over the person of the Defendants.
13. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391 (b) and (e). PARTIES
14. Plaintiff Mary Josephina Valdez (“Valdez”), currently a resident of Salt Lake City, resided in Salt Lake County, Utah, during the 2002 Salt Lake Winter Olympic Games. At the time, Valdez was employed at the Small Business Administration (“SBA”), with her office in the Federal Building in Salt Lake City, and was in Salt Lake City to work at the SBA on many of the days during the Olympic Games. She also attended Olympic-related events in Salt Lake City during the period of the 2002 Winter Olympic Games. While in Salt Lake City, she made many telephone calls, both private and business-related, and also communicated on a regular basis by email. During approximately one week during the period of the 2002 Winter Olympic Games, Valdez traveled to Puerto Rico and made many telephone calls to people located in Salt Lake City. While at her home, she engaged in frequent landline and cellular phone calls to people located in Salt Lake City.
15. Plaintiff Howard Stephenson (“Stephenson”) is, and during the 2002 Salt Lake Winter Olympic Games was, a resident of Draper, Utah. At all relevant times he has served as President of the Utah Taxpayers Association. Stephenson is, and during the 2002 Salt Lake Winter Olympic Games was, a Utah State Senator in the Utah State Legislature. At all relevant times, Stephenson frequently spent time in Salt Lake City, including at the Utah Capitol Building in Salt Lake City, where the Senate meets when it is in session. The Utah Legislature adjourned for the 2002 Salt Lake Winter Olympic Games, but just prior to the Games, the Legislature was in session full-time and Stephenson was in attendance. Whenever Stephenson was at the Utah Capitol building, he used his Blackberry and a
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computer to send email messages to people in and outside of Salt Lake City. He also used a land-line telephone and cell phone. For many days during the Olympics, Stephenson was in Salt Lake City, meeting dignitaries from other nations, attending events at nation houses, and also visiting his office in the Utah Capitol Building. Whenever he was in Salt Lake City during the 2002 Salt Lake Winter Olympic Games, Stephenson engaged in email communications, and also engaged in telephone communications utilizing his cell phone and land-line when there was a land-line telephone available. During the Opening Ceremony in Salt Lake City, Stephenson’s children were in attendance and texted or emailed Stephenson about the ceremony. Stephenson also took the Heber Creeper train and attended the biathlon Olympic competition at Soldier Hollow, a venue of the 2002 Salt Lake Winter Olympic Games 16. Plaintiff Deeda Seed (“Seed”), currently a resident of Salt Lake City, lived in Salt Lake City during the time period of the 2002 Salt Lake Winter Olympic Games. At that time, she had both a landline and cell phone, with service provided by AT&T, and frequently engaged in telephone calls with people in and outside of Salt Lake City. She also engaged in email communications with people in and outside of Salt Lake City from computers at her home and her place of employment in Salt Lake City. At the time of the 2002 Winter Olympic Games, Seed was employed as Special Project Coordinator with the Salt Lake City Public Library System in Salt Lake City, Utah. Her internet service providers were Quest and Earthlink. 17. Daniel Darger (“Darger”) currently resides, and at the time of the 2002 Salt Lake Winter Olympic Games resided, in Emigration Canyon, Salt Lake County, Utah. At the time of the 2002 Winter Olympic Games, Darger practiced law, with his law office located in Salt Lake City. From his office and from other locations in Salt Lake City, Darger had numerous telephone communications with others, including legally privileged and
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confidential communications with clients, during the 2002 Salt Lake Winter Olympic Games, both originating and received in Salt Lake City. In addition to his law practice, Darger was the owner of a business located in Salt Lake City through his entity Iguana, LC, which was in the business of operating a restaurant located in Salt Lake City. Darger was also CEO and Chair of the Board of RBD, Inc., dba Dead Goat Saloon, operating a private blues club located in Salt Lake City. Darger had a land line telephone system in his office, the service provider of which was AT&T. He also used two cell phones, utilizing services provided by Verizon and Cricket. At all relevant times, Darger also engaged in email communications, sometimes from a lap top computer he carried with him, including confidential communications with clients, originating and received in Salt Lake City. Darger made and received telephone calls and emails at the locations of all of the businesses with which he was associated during the 2002 Salt Lake Winter Olympic Games. Darger attended Olympic-related events, including private parties utilizing The Dead Goat Saloon during the 2002 Winter Olympic Games, and engaged in telephonic and/or email communications during and in connection with those events in Salt Lake City. 18. William Grant Bagley, a prize-winning editor of eight books on the American West and series editor of the fifteen-volume Arthur H. Clark Company’s documentary history Kingdom in the West: The Mormons and the American Frontier, currently resides, and during the 2002 Salt Lake Winter Olympic Games resided, in Salt Lake City, Utah. At that time, he engaged in many communications by telephone and email from his home and elsewhere in Salt Lake City, with people located in and outside of Salt Lake City, including extremely sensitive and confidential communications in connection with a controversial book Bagley was writing about the Mountain Meadows Massacre, the mass slaughter by early Mormon settlers of about 120 men, women, and children, most of them traveling from Arkansas to California.
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19. Thomas Nelson Huckin (“Huckin”) currently resides, and during the 2002 Salt Lake Winter Olympic Games resided, in Salt Lake City, Utah. At all relevant times, Huckin was employed at the University of Utah in Salt Lake City as a Professor of English and Writing and as Director of the University Writing Program. During the 2002 Salt Lake Winter Olympic Games, Huckin was a subscriber to telephone service at his home, through AT&T, and utilized that service and a telephone at his office, also through AT&T, and made and received numerous calls from Salt Lake City to and from people located in Salt Lake City. Huckin also communicated while in Salt Lake City through two email accounts, one that was his private account and another that was his office account at the University of Utah. Huckin’s email communications were with people both in and outside of Salt Lake City.
20. During the 2002 Salt Lake Winter Olympic Games, Plaintiffs utilized the services of one or more telecommunications service providers through which the NSA and FBI engaged in illegal and unconstitutional surveillance of information that included the length, times, and telephone numbers involved in each telephonic communication. Plaintiffs also subscribed to telecommunications services that allowed the sending of emails and, on a regular basis, sent and received emails while they were in Salt Lake City and near other Olympic venues, all of which were subjected by the NSA and FBI to illegal and unconstitutional surveillance, interception, and key-word spotting analysis.
21. Defendant NSA is an agency under the direction and control of the Department of Defense charged with collecting, processing, and disseminating foreign signals intelligence. The NSA has acted far beyond its proper, assigned scope and has been responsible for the program of widespread illegal and unconstitutional surveillance described herein.
22. Defendant FBI is an intelligence and security service of the United States, serving also as the major federal law enforcement organization, under the direction and control of the Department of Justice. The FBI has a long record of abuses of the Constitution and other
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federal laws, including violations of surveillance prohibitions and limitations. The FBI worked in conjunction with the NSA in subjecting private communications by text messages, emails, and telephone to illegal and unconstitutional surveillance, interception, and key-word spotting analysis. 23. Defendant Bush was the 43rd President of the United States, who served as President from 2001 to 2009. Bush expressed and acted on the view that, as President following the attacks on the United States on September 11, 2001, he was above the law, able to ignore and act in violation of laws passed by Congress and the Constitution. He was the first President in U.S. history to authorize and/or condone torture of human beings, all of which was blatantly illegal under domestic and international law, and, knowing he was violating laws passed by Congress and the Constitution, ordered illegal and unconstitutional surveillance to be conducted by the NSA, and then deceived the public about it. 24. Defendant Hayden was Director of the NSA from 1999 to 2005. Hayden requested and urged that the NSA be permitted to engage in widespread warrantless surveillance of electronic communications, including text messages, emails, and telephone communications. Hayden sought and received written authorization to engage in the clearly illegal and unconstitutional surveillance and caused the NSA to engage in such surveillance, including the massive, indiscriminate, warrantless surveillance of the contents of text messages, emails, and telephone calls originating or received in Salt Lake City and in the vicinity of other Olympic venues during the 2002 Salt Lake Winter Olympic Games. 25. Defendant Cheney was Vice-President during both terms of the Bush presidency. Prior to that, he was a Congressman, a presidential aide to Presidents Nixon and Ford, and Secretary of Defense during the administration of George H.W. Bush. Cheney has been a consistent proponent, since his work with the Nixon administration and his tenure in Congress, of the notion that the President should be above the law, not hampered by laws passed by
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Congress or by the Constitution, when important national security matters are at issue. Consistent with his notion regarding an imperial, law-breaking presidency, Cheney authorized, or purported to authorize, the illegal, unconstitutional surveillance, interception, and analysis of electronic communications by the NSA and was instrumental in causing the illegal surveillance program to be implemented. 26. Defendant Addington was legal counsel for Cheney during all times relevant to this matter. Later, he served as Cheney’s chief of staff. Addington oversaw the authorization of the broad, widespread, illegal and unconstitutional surveillance program that was implemented by the NSA. He drafted the written authorization for illegal surveillance by the NSA that was provided to Hayden. 27. Does 1-50 are or were agents of the NSA and FBI presently unknown to Plaintiffs who authorized, oversaw, and/or implemented the illegal surveillance alleged herein, each in their personal capacities.
CLASS ACTION ALLEGATIONS
28. Definition of the proposed class: Pursuant to Rule 23(b)(3), Federal Rules of Civil Procedure, Plaintiffs bring this action on behalf of themselves and a class of similarly situated persons defined as: All individuals in the United States who sent or received a phone call, text message, or email from or to a location within Salt Lake City or within an area including and adjacent to any other 2002 Salt Lake Winter Olympic Games venue where any of the defendants were engaged in warrantless surveillance of communications by telephone, text messaging, or email during the time of December 1, 2001 to February 24, 2002 (or whenever it is established the warrantless surveillance took place).
29. Size of the proposed class: The proposed class is likely composed of several hundred thousands, if not a million or more, people. Members of the class are so numerous that
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their individual joinder is impracticable. The precise number and addresses of members of the class are unknown to the Plaintiffs. The precise number of persons in the class and their identities and addresses may be ascertained from Defendants’ records. 30. Adequacy of representation by the class representatives: Plaintiffs are adequate representatives of the class because their interests align with, and do not conflict with, the interests of the members of the class they seek to represent. Plaintiffs have retained competent counsel, and Plaintiffs intend to prosecute this action vigorously. Plaintiffs and their counsel will fairly and adequately protect the interests of the members of the class. 31. The common questions of law and fact: There is a well-defined community of interest in the questions of law and fact involved affecting the members of the class. These common legal and factual questions include:
(a) Whether Defendants have violated, or caused to have violated, class members’ rights under the First and Fourth Amendments of the United States Constitution, or are currently doing so.
(b) Whether Defendants have, or caused to have, violated class members’ rights under Article 1, § 14 of the Utah Constitution, or are currently doing so.
(c) Whether Defendants have, or caused to have, subjected class members to electronic surveillance, or have disclosed or used information obtained by electronic surveillance of the class members, in violation of 50 U.S.C. § 1809, or are currently doing so.
(c) Whether Defendants have, or caused to have, intercepted, used or disclosed class members’ communications in violation of 18 U.S.C. § 2511, or are currently doing so.
(d) Whether Defendants have, or caused to have, required the disclosure of the contents of class members’ communications in violation of 18 U.S.C. § 2703(a) or (b), or are currently doing so.
(e) Whether Defendants have, or caused to have, required the disclosure of noncontent records or other information pertaining to class members in violation of 18 U.S.C. § 2703(c), or are currently doing so.
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(f) Whether Defendants have, or caused to have, violated the Administrative Procedures Act, 5 U.S.C. §§ 701 et seq., or are currently doing so.
(g) Whether the Defendants have, or caused to have, intercepted class members’ privately communicated messages in violation of Utah Code § 76-9-403, or are currently doing so.
(h) Whether Plaintiffs and class members are entitled to injunctive, declaratory, and other equitable relief against Defendants.
(i) Whether Plaintiffs and class members are entitled to an award of reasonable attorneys’ fees and costs of this suit.
(j) Whether Plaintiffs and class members are entitled to an award of actual and punitive damages. 32. The typicality of claims or defenses of the class representatives: Plaintiffs’ claims are
typical of the claims of the members of the class because Plaintiffs were users of telecommunication services and sent or received one or more phone calls, text messages, or emails from or to a location within Salt Lake City or within a one-mile radius of any other 2002 Salt Lake Winter Olympic Games venue during the time of December 1, 2001 to February 24, 2002. Plaintiffs and all members of the class have similarly suffered harm arising from Defendants’ violations of law, as alleged herein. 33. Nature of the notice to the proposed class: Plaintiffs will provide notice to the class as directed by the Court, pursuant to Rule 23(c)(2), Federal Rules of Civil Procedure. 34. Additional matters pertinent to findings as provided by Rule 23(b)(3), Federal Rules of Civil Procedure: (a) The class members have not demonstrated an interest in individually controlling the prosecution of separate actions and the statute of limitations is likely going to run within a few days of the filing of this action. (b) No litigation has been commenced concerning the controversy that is the subject of this Complaint. (c) It is desirable that the
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litigation concerning the claims in this matter should be in this forum. (d) Managing a class action will be far simpler, and will achieve far greater justice, than denying class status and depriving class members of a remedy and accountability for the unconstitutional and unlawful surveillance of their communications. 35. Plaintiffs seek certification as a class action of claims for monetary damages and declaratory, injunctive, and other equitable relief pursuant to 18 U.S.C. § 2520, 18 U.S.C. § 2707, 50 U.S.C. § 1810, 5 U.S.C. § 552a, UTAH CODE § 76-9-403, 5 U.S.C. § 1702, the First and Fourth Amendments to the United States Constitution, and Article 1, § 14 of the Utah Constitution. 36. Excluded from the class are the individual Defendants, all who have acted in active concert and participation with the individual Defendants, and the legal representatives, heirs, successors, and assigns of the individual Defendants. 37. Also excluded from the class are any foreign powers, as defined by 50 U.S.C. § 1801(a), or any agents of foreign powers, as defined by 50 U.S.C. § 1801(b)(1)(A), including without limitation anyone who knowingly engages in sabotage, international terrorism, or activities that are in preparation therefor. 38. This action is brought as a class action and may properly be so maintained pursuant to the provisions of Rule 23, Federal Rules of Civil Procedure. Plaintiffs reserve the right to modify the class definition and the class period based on the results of discovery. 39. This suit may be maintained as a class action pursuant to Rule 23(b)(3), Federal Rules of Civil Procedure, because all of the above factors of numerosity, common questions of fact and law, typicality and adequacy are present, because questions of fact and law common
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to class members predominate over any questions affecting only individual members, and because a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.
Count I Violation of Fourth Amendment of United States Constitution and
Article 1, § 14 of Utah Constitution – Damages Named Plaintiffs and Class v. Bush (in his personal capacity), Cheney (in his personal capacity), Addington (in his personal capacity), Hayden (in his personal capacity), Does 1-50 (unknown agents of the NSA and FBI who authorized, oversaw, and/or implemented the illegal surveillance alleged herein, each in their personal capacities). 40. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding paragraphs of this Complaint, as if set forth fully herein. 41. Plaintiffs have a reasonable expectation of privacy in their communications, contents of communications, and/or records pertaining to their communications transmitted, collected, or stored by any telecommunications company. 42. Defendants have directly performed, or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission of, the above-described acts of acquisition, interception, surveillance and analysis of Plaintiffs’ communications, contents of communications, and records pertaining to their communications transmitted, collected, and/or stored by telecommunication service providers without judicial or other lawful authorization, probable cause, and/or individualized suspicion, in violation of statutory and constitutional limitations, and in excess of statutory and constitutional authority. 43. On information and belief, one or more telecommunication service providers acted as the agent of Defendants in performing, participating in, enabling, contributing to, facilitating,
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or assisting in the commission of the above-described acts of acquisition, interception, surveillance and analysis of Plaintiffs’ communications, contents of communications, and records pertaining to their communications transmitted, collected, and/or stored by the telecommunication service provider without judicial or other lawful authorization, probable cause, and/or individualized suspicion. 44. Clearly established law, including the plain text of the Fourth Amendment, indicated to any reasonable person that surveillance of the contents of private communications without warrant or probable cause was a violation of statutory and constitutional rights. A fortiori, blanket surveillance of the contents of messages of all individuals within large, geographically targeted areas, without warrant, without probable cause, and without individualized suspicion, must have been known at all relevant times to have been wholly unconstitutional and in violation of federal surveillance and privacy statutes. 45. At all relevant times, Defendants committed, knew of, and/or acquiesced in all of the above-described acts, and failed to obtain judicial or other lawful authorization and to conform their conduct to the requirements of the Fourth Amendment of the United States Constitution and Article 1, § 14 of the Utah Constitution. 46. By the acts alleged herein, Defendants have violated Plaintiff’s reasonable expectations of privacy and denied Plaintiffs their right to be free from unreasonable searches and seizures as guaranteed by the Fourth Amendment of the United States Constitution and Article 1, § 14 of the Utah Constitution. 47. By the acts alleged herein, Defendants’ conduct has proximately caused significant harm to Plaintiffs. 48. Plaintiffs have no other adequate remedy at law for the Count I Defendants’ violation of Plaintiffs’ rights to be free from unreasonable searches and seizures as guaranteed by the
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Fourth Amendment of the United States Constitution and Article 1, § 14 of the Utah Constitution. 49. Plaintiffs seek an award of their actual damages and punitive damages against the Count I Defendants, and such other or further relief as is proper.
Count II Violation of Fourth Amendment of United States Constitution and Article 1, § 14 of Utah
Constitution - Equitable relief Named Plaintiffs and Class v. United States, NSA, and FBI. 50. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding paragraphs of this Complaint, as if set forth fully herein. 51. Plaintiffs have a reasonable expectation of privacy in their communications, contents of communications, and/or records pertaining to their communications transmitted, collected, or stored by any telecommunications company. 52. Defendants have directly performed, or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission of, the above-described acts of acquisition, interception, surveillance and analysis of Plaintiffs’ communications, contents of communications, and records pertaining to their communications transmitted, collected, and/or stored by telecommunication service providers without judicial or other lawful authorization, probable cause, and/or individualized suspicion, in violation of statutory and constitutional limitations, and in excess of statutory and constitutional authority. 53. On information and belief, one or more telecommunication service providers acted as the agent of Defendants in performing, participating in, enabling, contributing to, facilitating, or assisting in the commission of the above-described acts of acquisition, interception,
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surveillance and analysis of Plaintiffs’ communications, contents of communications, and records pertaining to their communications transmitted, collected, and/or stored by the telecommunication service provider without judicial or other lawful authorization, probable cause, and/or individualized suspicion. 54. Clearly established law, including the plain text of the Fourth Amendment, indicated to any reasonable person that surveillance of the contents of private communications without warrant or probable cause was a violation of statutory and constitutional rights. A fortiori, blanket surveillance of the contents of messages of all individuals within large, geographically targeted areas, without warrant, without probable cause, and without individualized suspicion, must have been known at all relevant times to have been wholly unconstitutional and in violation of federal surveillance and privacy statutes. 55. At all relevant times, Defendants committed, knew of, and/or acquiesced in all of the above-described acts, and failed to obtain judicial or other lawful authorization and to conform their conduct to the requirements of the Fourth Amendment of the United States Constitution and Article 1, § 14 of the Utah Constitution. 56. By the acts alleged herein, Defendants have violated Plaintiff’s reasonable expectations of privacy and denied Plaintiffs their right to be free from unreasonable searches and seizures as guaranteed by the Fourth Amendment of the United States Constitution and Article 1, § 14 of the Utah Constitution. 57. On information and belief, the Count II Defendants are now engaging in and will continue to engage in the above-described and similar violations of Plaintiffs’ and class members’ constitutional rights, and are thereby irreparably harming Plaintiffs and class members. Plaintiffs and class members have no adequate remedy at law for the Count II Defendants’ continuing unlawful conduct, and the Count II Defendants will continue to violate Plaintiffs’ and class members’ legal rights unless enjoined and restrained by this Court.
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58. Plaintiffs seek a declaration by this Court that Defendants have violated Plaintiffs’ rights and the rights of the class.
59. The Court should enjoin the Count II Defendants, their agents, successors, and assigns, and all those in active concert and participation with them, from violating the Plaintiffs’ and class members’ rights under the Fourth Amendment to the United States Constitution and Article 1, § 14 of the Utah Constitution; and award such other and further equitable relief as is proper. Count III Violation of First Amendment of the United States Constitution – Damages Named Plaintiffs and Class v. Bush (in his personal capacity), Cheney (in his personal capacity), Hayden (in his personal capacity), Addington (in his personal capacity), Does 1-50 (unknown agents of the NSA and FBI who authorized, oversaw, and/or implemented the illegal surveillance alleged herein, each in their personal capacities)
60. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding paragraphs of this Complaint, as if set forth fully herein.
61. Plaintiffs used telecommunication service providers to exercise their rights of free speech, association, and privacy, to speak or receive speech privately and to associate privately.
62. Defendants have directly performed, or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission of, the above-described acts of acquisition, interception, surveillance and analysis of Plaintiffs’ communications, contents of communications, and records pertaining to their communications transmitted, collected, and/or stored by telecommunication service providers without judicial or other lawful authorization, probable cause, and/or individualized suspicion, in violation of statutory and constitutional limitations, and in excess of statutory and constitutional authority.
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63. By the acts alleged herein, Defendants’ conduct proximately caused harm to Plaintiffs. 64. Plaintiffs have no other adequate remedy at law for the Count III Defendants’ violation of
Plaintiffs’ rights to speak, receive speech, and associate privately as guaranteed by the First Amendment of the United States Constitution. 65. Defendants’ conduct was done intentionally, with deliberate indifference, or with reckless disregard of, Plaintiffs’ constitutional rights. 66. Plaintiffs seek an award of actual damages and punitive damages against the Count III Defendants, and for such other or further relief as is proper.
Count IV Violation of First Amendment of the Constitution of the United States – Equitable relief
Named Plaintiffs and Class v. United States, NSA, and FBI. 67. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
paragraphs of this Complaint, as if set forth fully herein. 68. Plaintiffs used telecommunication service providers to exercise their rights of free speech,
association, and privacy, to speak or receive speech privately and to associate privately. 69. Defendants have directly performed, or aided, abetted, counseled, commanded, induced,
procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission of, the above-described acts of acquisition, interception, surveillance and analysis of Plaintiffs’ communications, contents of communications, and records pertaining to their communications transmitted, collected, and/or stored by telecommunication service providers without judicial or other lawful authorization, probable cause, and/or individualized suspicion, in violation of statutory and constitutional limitations, and in excess of statutory and constitutional authority.
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70. By the acts alleged herein, Count IV Defendants’ conduct proximately caused harm to Plaintiffs.
71. Count IV Defendants’ conduct was done intentionally, with deliberate indifference, or with reckless disregard of, Plaintiffs’ constitutional rights.
72. On information and belief, the Count IV Defendants are now engaging in and will continue to engage in the above-described or similar violations of Plaintiffs’ and class members’ constitutional rights, and are thereby irreparably harming Plaintiffs and class members. Plaintiffs and class members have no adequate remedy at law for the Count IV Defendants’ continuing unlawful conduct, and the Count IV Defendants will continue to violate Plaintiffs’ and class members’ legal rights unless enjoined and restrained by this Court.
73. Plaintiffs seek that this Court declare that Count IV Defendants have violated their rights and the rights of the class; enjoin the Count IV Defendants, their agents, successors, and assigns, and all those in active concert and participation with them from violating the Plaintiffs’ and class members’ rights under the First Amendment to the United States Constitution; and award such other and further equitable relief as is proper.
Count V Violation of FISA (50 U.S.C. § 1809, actionable under 50 U.S.C. § 1810) – Damages
Named Plaintiffs and Class v. United States, FBI, NSA, Bush (in his personal capacity), Cheney (in his personal capacity), Hayden (in his personal capacity), Addington (in his personal capacity), Does 1-50 (unknown agents of the NSA and FBI who authorized, oversaw, and/or implemented the illegal surveillance alleged herein, each in their personal capacities) 74. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding paragraphs of this Complaint, as if set forth fully herein. 75. In relevant part, 50 U.S.C. § 1809 makes it unlawful to intentionally engage in electronic surveillance under color of law “except as authorized in this chapter, chapter 119, 121, or
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206 of Title 18 or by any express statutory authorization that is an additional exclusive means for conducting electronic surveillance under section 1812 of this title.” 76. Defendants intentionally acquired, or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission of such acquisition, by means of a surveillance device, the contents of one or more wire communications to or from Plaintiffs and class members or other information in which Plaintiffs or class members have a reasonable expectation of privacy, without the consent of any party thereto, and such acquisition occurred in the United States. 77. Defendants have directly performed, or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission of, the above-described acts of acquisition, interception, surveillance and analysis of Plaintiffs’ communications, contents of communications, and records pertaining to their communications transmitted, collected, and/or stored by telecommunication service providers without judicial or other lawful authorization, probable cause, and/or individualized suspicion, in violation of statutory and constitutional limitations, and in excess of statutory and constitutional authority. 78. By the acts alleged herein, Defendants acting in excess of their statutory authority and in violation of statutory limitations have intentionally engaged in, or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission of, electronic surveillance (as defined by 50 U.S.C. § 1801(f)) under color of law, not authorized by any statute, to which Plaintiffs and class members were subjected in violation of 50 U.S.C. § 1809.
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79. Plaintiffs are entitled to relief under 50 U.S.C. § 1810, which provides civil liability against any person who subjects another to surveillance in violation of 50 U.S.C. § 1809.
80. Plaintiffs seek an award of their statutory or actual damages, punitive damages, reasonable attorney’s fees and other investigation and litigation costs reasonably incurred against the Defendants, and such other or further relief as is proper. Count VI
Violation of Wiretap Act (18 U.S.C. § 2511, actionable under 18 U.S.C. § 2520) – Damages Named Plaintiffs and Class v. United States, NSA, FBI, and Bush (in his personal capacity), Cheney (in his personal capacity), Hayden (in his personal capacity), Addington (in his personal capacity), Does 1-50 (unknown agents of the NSA and FBI who authorized, oversaw, and/or implemented the illegal surveillance alleged herein, each in their personal capacities)
81. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding paragraphs of this Complaint, as if set forth fully herein.
82. In relevant part, 18 U.S.C. § 2511 makes it unlawful to intentionally intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication except as specifically provided by the Wiretap Act.
83. By the acts alleged herein, Defendants have intentionally and willfully intercepted, endeavored to intercept, or procured another person to intercept or endeavor to intercept, Plaintiffs’ wire or electronic communications in violation of 18 U.S.C. § 2511(1)(a).
84. Defendants have intentionally and willfully used, or endeavored to use, the contents of Plaintiffs’ wire or electronic communications, while knowing or having reason to know that the information was obtained through the interception of wire or electronic communications in violation of 18 U.S.C. § 2511(1)(d).
85. Defendants have intentionally and willfully caused, or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, participated
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in, contributed to, facilitated, directed, controlled, assisted in, or conspired to cause telecommunication service providers’ divulgence of Plaintiffs’ wire or electronic communications to Defendants while in transmission, in violation of 18 U.S.C. § 2511(3)(a). 86. Defendants have committed these acts of interception and use of Plaintiffs’ communications directly, or by aiding, abetting, counseling, commanding, inducing, procuring, encouraging, promoting, instigating, advising, willfully causing, participating in, enabling, contributing to, facilitating, directing, controlling, assisting in, or conspiring in their commission. 87. On information and belief, telecommunication service providers acted as the agents of Defendants in performing, participating in, enabling, contributing to, facilitating, or assisting in the commission of these acts of interception, disclosure, divulgence and/or use of Plaintiffs’ communications. 88. Defendants did not notify Plaintiffs of the above-described intentional interception, disclosure, and/or use of their wire or electronic communications, nor did Plaintiffs or class members consent to such. 89. Plaintiffs have been and are aggrieved by Defendants’ intentional and willful interception, disclosure, divulgence and/or use of their wire or electronic communications. 90. Plaintiffs have therefore been subjected by Defendants to the unlawful interception, and intentional use of Plaintiff’s wire, oral, and/or electronic communications in violation of 18 U.S.C. § 2511, entitling them to relief against Defendants pursuant to 18 U.S.C. § 2520. 91. Pursuant to 18 U.S.C. § 2520, which provides a civil action for any person whose wire or electronic communications have been intercepted, disclosed, divulged or intentionally used in violation of 18 U.S.C. § 2511, Plaintiffs seek from the Count VI Defendants for each
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Plaintiff their statutory damages or actual damages; punitive damages as appropriate; reasonable attorney’s fees; litigation costs; and such other and further relief as is proper.
Count VII Violation of Wiretap Act (18 U.S.C. § 2511, actionable under 18 U.S.C. § 2520) –
Equitable relief Named Plaintiffs and Class v. United States, NSA, and FBI. 92. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding paragraphs of this Complaint, as if set forth fully herein. 93. In relevant part, 18 U.S.C. § 2511 makes it unlawful to intentionally intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication except as specifically provided by the Wiretap Act. 94. By the acts alleged herein, Defendants have intentionally and willfully intercepted, endeavored to intercept, or procured another person to intercept or endeavor to intercept, Plaintiffs’ wire or electronic communications in violation of 18 U.S.C. § 2511(1)(a). 95. Defendants have intentionally and willfully used, or endeavored to use, the contents of Plaintiffs’ wire or electronic communications, while knowing or having reason to know that the information was obtained through the interception of wire or electronic communications in violation of 18 U.S.C. § 2511(1)(d). 96. Defendants have intentionally and willfully caused, or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, participated in, contributed to, facilitated, directed, controlled, assisted in, or conspired to cause telecommunication service providers’ divulgence of Plaintiffs’ wire or electronic communications to Defendants while in transmission, in violation of 18 U.S.C. § 2511(3)(a).
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97. Defendants have committed these acts of interception and use of Plaintiffs’ communications directly or by aiding, abetting, counseling, commanding, inducing, procuring, encouraging, promoting, instigating, advising, willfully causing, participating in, enabling, contributing to, facilitating, directing, controlling, assisting in, or conspiring in their commission.
98. On information and belief, telecommunication service providers acted as the agents of Defendants in performing, participating in, enabling, contributing to, facilitating, or assisting in the commission of these acts of interception, disclosure, divulgence and/or use of Plaintiffs’ communications.
99. Defendants did not notify Plaintiffs of the above-described intentional interception, disclosure, and/or use of their wire or electronic communications, nor did Plaintiffs or class members consent to such.
100. Plaintiffs have been and are aggrieved by Defendants’ intentional and willful interception, disclosure, divulgence and/or use of their wire or electronic communications.
101. Plaintiffs have therefore been subjected by Defendants to the unlawful interception, and intentional use of Plaintiff’s wire, oral, and/or electronic communications in violation of 18 U.S.C. § 2511, entitling them to relief against Defendants pursuant to 18 U.S.C. § 2520.
102. Pursuant to 18 U.S.C. § 2520, which provides for a civil action for any person whose wire or electronic communications have been intercepted, disclosed, divulged or intentionally used in violation of 18 U.S.C. § 2511, pursuant to Larson v. United States, 337 U.S. 682 (1949), and pursuant to 5 U.S.C. § 702, Plaintiffs and class members seek equitable and declaratory relief against the Count VII Defendants.
103. Plaintiffs seek that this Court declare that Count VII Defendants have violated their rights and the rights of the class; enjoin the Count VII Defendants, their agents, successors, and assigns, and all those in active concert and participation with them from violating the
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Plaintiffs’ and class members’ statutory rights, including their rights under 18 U.S.C. § 2511; and award such other and further equitable relief as is proper.
Count VIII Violation of Stored Communications Act (18 U.S.C. § 2703, actionable under 18 U.S.C. §
2707) – Damages Named Plaintiffs and Class v. Bush (in his personal capacity), Cheney (in his personal capacity), Addington (in his personal capacity), Hayden (in his personal capacity), Does 1-50 (unknown agents of the NSA and FBI who authorized, oversaw, and implemented the illegal surveillance alleged herein, each in their personal capacities) 104. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding paragraphs of this Complaint, as if set forth fully herein. 105. In relevant part, 18 U.S.C. § 2703 provides that a “governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication” only pursuant to a warrant for communications stored for one hundred and eighty days or less and for communications stored longer than one hundred and eighty days, only pursuant to a warrant or with prior notice and a subpoena or court order. 106. Defendants intentionally and willfully required telecommunication service providers, or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in requiring from telecommunication service providers, the disclosure to Defendants of the contents of Plaintiffs’ and class members’ communications while in electronic storage by telecommunication service providers’ electronic communication service, and/or while carried or maintained by telecommunication service providers’ remote computing service, in violation of 18 U.S.C.
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§§ 2703(a) and/or (b). In doing so, Defendants have acted in excess of their statutory authority and in violation of statutory limitations. 107. On information and belief, one or more telecommunication service providers acted as the agent of Defendants in performing, participating in, enabling, contributing to, facilitating, or assisting in the commission of these acts of disclosure of Plaintiffs’ and class members’ communications. 108. Defendants did not notify Plaintiffs or class members of the disclosure of their communications, nor did Plaintiffs or class members consent to such. 109. Plaintiffs and class members have been and are aggrieved by Defendants’ above-described soliciting and obtaining of disclosure of the contents of communications. 110. Clearly established law indicated to any reasonable person that requiring a telecommunication service provider to disclose the content of one of its customer’s messages required following the procedures of the Stored Communications Act. A fortiori, requiring a telecommunication service provider to disclose the contents of messages of all individuals within large, geographically targeted areas, without warrant, without probable cause, and without individualized suspicion must have been known at all relevant times to have been wholly unconstitutional and in violation of federal surveillance and privacy statutes. 111. Defendants’ actions were patently egregious and unlawful, in flagrant disregard of Plaintiffs’ statutory and constitutional rights. 112. Defendants therefore knowingly and willfully violated provisions of the Stored Communication Act, entitling Plaintiffs to relief under 18 U.S.C. § 2707. 113. Plaintiffs seek an award of their statutory or actual damages, punitive damages, reasonable attorney’s fees and other investigation and litigation costs reasonably incurred against the Count IX Defendants, and such other or further relief as is proper.
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Count IX Violation of Stored Communications Act (18 U.S.C. § 2703, actionable under 18 U.S.C. §
2707) – Equitable relief Named Plaintiffs and Class v. United States, NSA, and FBI 114. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding paragraphs of this Complaint, as if set forth fully herein. 115. In relevant part, 18 U.S.C. § 2703 provides that a “governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication” only pursuant to a warrant for communications stored for one hundred and eighty days or less and for communications stored longer than one hundred and eighty days, only pursuant to a warrant or with prior notice and a subpoena or court order. 116. Defendants intentionally and willfully required telecommunication service providers, or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in requiring from telecommunication service providers, the disclosure to Defendants of the contents of Plaintiffs’ and class members’ communications while in electronic storage by telecommunication service providers’ electronic communication service, and/or while carried or maintained by telecommunication service providers’ remote computing service, in violation of 18 U.S.C. §§ 2703(a) and/or (b). In doing so, Defendants have acted in excess of their statutory authority and in violation of statutory limitations. 117. On information and belief, one or more telecommunication service providers acted as the agent of Defendants in performing, participating in, enabling, contributing to, facilitating, or assisting in the commission of these acts of disclosure of Plaintiffs’ and class members’ communications.
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118. Defendants did not notify Plaintiffs or class members of the disclosure of their communications, nor did Plaintiffs or class members consent to such.
119. Plaintiffs and class members have been and are aggrieved by Defendants’ above described soliciting and obtaining of disclosure of the contents of communications.
120. Clearly established law indicated to any reasonable person that requiring a telecommunication service provider to disclose the content of one of its customer’s messages required following the procedures of the Stored Communications Act. A fortiori, requiring a telecommunication service provider to disclose the contents of messages of all individuals within large, geographically targeted areas, without warrant, without probable cause, and without individualized suspicion must have been known at all relevant times to have been wholly unconstitutional and in violation of federal surveillance and privacy statutes.
121. Defendants’ actions were patently egregious and unlawful, in flagrant disregard of Plaintiffs’ statutory and constitutional rights.
122. Defendants therefore knowingly and willfully violated provisions of the Stored Communication Act, entitling Plaintiffs to relief under 18 U.S.C. § 2707.
123. On information and belief, the Count IX Defendants are now engaging in and will continue to engage in the above-described or similar acts of requiring disclosure of the contents of class members’ communications while in electronic storage by telecommunication service providers’ electronic communication service(s), and/or while carried or maintained by telecommunication service providers’ remote computing service(s), acting in excess of the Count IX Defendants’ statutory authority and in violation of statutory limitations, including 18 U.S.C. § 2703(a) and (b), and are thereby irreparably harming Plaintiffs and class members. Plaintiffs and class members have no adequate remedy at law for the Count IX Defendants’ continuing unlawful conduct, and the Count IX Defendants will continue to
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violate Plaintiffs’ and class members’ legal rights unless enjoined and restrained by this Court. 124. Pursuant to 18 U.S.C. § 2707, which provides a civil action for any person aggrieved by knowing or intentional violation of 18 U.S.C. § 2703, pursuant to Larson v. United States, 337 U.S. 682 (1949), and pursuant to 5 U.S.C. § 702, Plaintiffs and class members seek equitable and declaratory relief against the Count IX Defendants.
Count X Violation of Privacy Act (actionable under 5 U.S.C. § 552a) – Damages Named Plaintiffs and Class v. NSA and FBI. 125. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding paragraphs of this Complaint, as if set forth fully herein. 126. 5 U.S.C. § 552a(e) in relevant part states “[e]ach agency that maintains a system of records shall—(1) maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the President.” 127. 5 U.S.C. § 552a(g)(1) provides in relevant part that:
Whenever any agency . . . (D) fails to comply with any other provision of this section, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual the individual may bring a civil action against the agency, and the district courts of the United States shall have jurisdiction in the matters under the provisions of this subsection.
128. The National Security Agency, through its website at https://www.nsa.gov/about/faqs/about_nsa.shtml, as accessed on August 13, 2015, states:
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NSA/CSS has two interconnected missions: Signals Intelligence (known as SIGINT) and Information Assurance. Through SIGINT, we gather information that America's adversaries wish to keep secret. Through Information Assurance, we protect America's vital national security information and systems from theft or damage by others. Taken together, the SIGINT and Information Assurance missions are essential to a third function: enabling Network Warfare, a military operation. Through carrying out its missions, NSA/CSS helps save lives, defend vital networks, and advance our Nation's goals and alliances, while strictly protecting privacy rights guaranteed by the U.S. Constitution and laws.
129. The Federal Bureau of Investigation, through its website at https://www.fbi.gov/aboutus/faqs, as accessed on August 13, 2015, states: The mission of the FBI is to protect and defend the United States against terrorist and foreign intelligence threats, to uphold and enforce the criminal laws of the United States, and to provide leadership and criminal justice services to federal, state, municipal, and international agencies and partners. It performs these responsibilities in a way that is responsive to the needs of the public and faithful to the Constitution of the United States.
130. Defendants intentionally and willfully solicited and obtained from telecommunication service providers, or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in soliciting and obtaining from telecommunication service providers, the disclosure to Defendants of the contents of Plaintiffs’ and class members’ communications while in electronic storage by telecommunication service providers’ electronic communication service, and/or while carried or maintained by telecommunication service providers’ remote computing service, in violation of 18 U.S.C. §§ 2703(a) and/or (b). In doing so, Defendants have acted in excess of their statutory authority and in violation of statutory limitations.
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131. On information and belief, the NSA and FBI maintain in their records illegally obtained information about Plaintiffs individually that is neither relevant nor necessary to accomplish the purpose of the NSA or the FBI.
132. Plaintiffs seek an award of their actual damages, reasonable attorney’s fees and other investigation and litigation costs reasonably incurred against the Count X Defendants, and such other or further relief as is proper.
Count XI Violation of Communication Abuse (Utah Code § 76-9-403) – Damages Named Plaintiffs and class v. United States, NSA, FBI, and Bush (in his personal capacity), Cheney (in his personal capacity), Hayden (in his personal capacity), Addington (in his personal capacity), Does 1-50 (unknown agents of the NSA and FBI who authorized, oversaw, and/or implemented the illegal surveillance alleged herein, each in their personal capacities) 133. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding paragraphs of this Complaint, as if set forth fully herein. 134. Defendants, without authorization by law, intercepted messages that were privately communicated by Plaintiffs, without consent of the sender or receiver. 135. Defendants acted intentionally and reprehensibly, in clear violation of Plaintiffs rights. Defendants’ actions were in egregious violation of Utah Code Ann. §76-9-403, which provides as follows:
(1) A person commits communication abuse if, except as authorized by law, he: (a) Intercepts, without the consent of the sender or receiver, a message by telephone, telegraph, letter, or other means of communicating privately . . . or (b) Divulges without consent of the sender or receiver the existence or contents of any such message if the actor knows that the message was illegally intercepted or if he learned of the message in the course of employment with an agency engaged in transmitting it.
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136. Plaintiffs seek an award of their actual damages, punitive damages, reasonable attorney’s fees and other investigation and litigation costs reasonably incurred against the Count XI Defendants, and such other or further relief as is proper.
Count XII Violation of the Administrative Procedure Act, 5 U.S.C. § 701 et seq. - Declaratory,
Injunctive, and Other Equitable Relief Named Plaintiffs and Class v. United States, NSA and FBI 137. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding paragraphs of this Complaint, as if set forth fully herein. 138. Defendants’ actions violate the Administrative Procedures Act, 5 U.S.C. § 701 et seq., because Defendants’ actions exceed statutory authority and limitations imposed by Congress through FISA, and through Chapters 119, 121 and 206 of Title 18 of the U.S. Code (the Wiretap Act, the Stored Communications Act, and the Pen Register Statute, respectively) and in violation of statutory rights under those laws; are not otherwise in accordance with law; are contrary to constitutional rights, including the Fourth Amendment and First Amendment; and are taken without observance of procedures required by law. 139. Plaintiffs and class members are aggrieved by these violations because, as described previously in this Complaint, Defendants’ actions have resulted in the interception, acquisition, disclosure, divulgence and/or use of the contents of their wire and electronic communications, communications records, and other information in violation of their constitutional and statutory rights. 140. Plaintiffs seek nonmonetary relief against the Count XII Defendants, including a declaration that Defendants have violated their rights and the rights of the class; an injunction enjoining the Count XII Defendants, their agents, successors, and assigns, and
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all those in active concert and participation with them from violating the Plaintiffs’ and class members’ rights; and such other and further nonmonetary relief as is proper.
Count XIII Violation of FISA (50 U.S.C. § 1809, actionable under 50 U.S.C. § 1810) – Equitable Relief
Named Plaintiffs and Class v. United States, FBI, and NSA. 141. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
paragraphs of this complaint, as if set forth fully herein. 142. In relevant part, 50 U.S.C. § 1809 makes it unlawful to intentionally engage in electronic
surveillance under color of law “except as authorized in this chapter, chapter 119, 121, or 206 of Title 18 or by any express statutory authorization that is an additional exclusive means for conducting electronic surveillance under section 1812 of this title.” 143. Defendants intentionally acquired, or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission of, such acquisition, by means of a surveillance device, the contents of one or more wire communications to or from Plaintiffs and class members or other information in which Plaintiffs or class members have a reasonable expectation of privacy, without the consent of any party thereto, and such acquisition occurred in the United States. 144. Defendants have directly performed, or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission of the above-described acts of acquisition, interception, surveillance and/or analysis of Plaintiffs’ communications, contents of communications, and records pertaining to their communications transmitted, collected, and/or stored by telecommunication service providers without judicial or other lawful authorization,
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probable cause, and/or individualized suspicion, in violation of statutory and constitutional limitations, and in excess of statutory and constitutional authority. 145. By the acts alleged herein, Defendants acting in excess of their statutory authority and in violation of statutory limitations have intentionally engaged in, or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission of, electronic surveillance (as defined by 50 U.S.C. § 1801(f)) under color of law, not authorized by any statute, to which Plaintiffs and class members were subjected in violation of 50 U.S.C. § 1809. 146. On information and belief, the Count XIII Defendants are now engaging in and will continue to engage in the above-described or similar acts resulting in the electronic surveillance, disclosure, and/or use of Plaintiffs’ and class members’ wire communications, acting in excess of the Count XIII Defendants’ statutory authority and in violation of statutory limitations, including 50 U.S.C. § 1809 and 18 U.S.C. § 2511(2)(f), and are thereby irreparably harming Plaintiffs and class members. Plaintiffs and class members have no adequate remedy at law for the Count XIII Defendants’ continuing unlawful conduct, and the Count XIII Defendants will continue to violate Plaintiffs’ and class members’ legal rights unless enjoined and restrained by this Court. 147. Pursuant to Larson v. United States, 337 U.S. 682 (1949) and to 5 U.S.C. § 702, Plaintiffs seek that this Court declare that Defendants have violated their rights and the rights of the class; enjoin the Count XIII Defendants, their agents, successors, and assigns, and all those in active concert and participation with them from violating the Plaintiffs’ and class members’ statutory rights, including their rights under 50 U.S.C. §§ 1801 et seq.; and award such other and further equitable relief as is proper.
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148. Plaintiffs are entitled to relief under 50 U.S.C. § 1810, which provides civil liability against any person who subjects another to surveillance in violation of 50 U.S.C. § 1809.
149. Plaintiffs seek an award of their statutory or actual damages, punitive damages, reasonable attorney’s fees and other investigation and litigation costs reasonably incurred against the Defendants, and such other or further relief as is proper. PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that the Court:
1. Declare that the program of surveillance as described herein violates Plaintiffs’ and class members’ rights under the First and Fourth Amendments to the United States Constitution and Article I, § 14 of the Utah Constitution; their statutory rights, including their rights under 18 U.S.C. § 2511, 18 U.S.C. § 2703, 50 US.C. § 1809, 5 U.S.C. § 552a, and the Administrative Procedures Act.
2. Award Plaintiffs and class members equitable relief, including a preliminary and permanent injunction pursuant to the First and Fourth Amendments to the United States Constitution and Article I, § 14 of the Utah Constitution, prohibiting Defendants’ continued warrantless surveillance of communications by text messages, emails, and telephone, and a preliminary and permanent injunction pursuant to the Fourth Amendment requiring Defendants to provide to Plaintiffs and members of the class an inventory of their communications, records, or other information that were seized in violation of the Fourth Amendment, and further requiring the destruction of all copies of those communications, records, or other information within the possession, custody, or control of any of the Defendants.
3. Award Plaintiffs their statutory, actual, and punitive damages to the extent permitted by law and according to proof.
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4. Award to Plaintiffs their reasonable attorneys’ fees and other costs of suit to the extent permitted by law.
5. Grant such other and further relief as the Court deems just and proper. JURY DEMAND
Plaintiffs hereby demand a jury trial of all matters triable by jury. DATED this 18th day of August, 2015.
WINDER & COUNSEL, P.C. /s/ Ross C. Anderson Attorneys for Plaintiffs
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 Case 2:15-cv-00584-RJS-DBP Document 26 Filed 02/10/16 Page 1 of 46

ROSS C. ANDERSON (#0109) WINDER & COUNSEL, P.C. 460 South 400 East Salt Lake City, UT 84111 Telephone: (801) 322-2222 Facsimile: (801) 322-2282 randerson@winderfirm.com
Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION

MARY JOSEPHINE (JOSIE) VALDEZ, HOWARD STEPHENSON, DEEDA SEED, DANIEL DARGER, WILLIAM GRANT BAGLEY, and THOMAS NELSON HUCKIN,
Plaintiffs,

AMENDED COMPLAINT FOR CONSTITUTIONAL, COMMON LAW, AND STATUTORY VIOLATIONS, SEEKING DAMAGES, DECLARATORY, AND INJUNCTIVE RELIEF

v.
NATIONAL SECURITY AGENCY; GEORGE W. BUSH, in his individual capacity; MICHAEL V. HAYDEN, in his individual capacity; RICHARD B. CHENEY, in his individual capacity; DAVID ADDINGTON, in his individual capacity; DOES #1-50, inclusive,

JURY DEMANDED Case No. 2:15-cv-00584-RJS Judge Robert J. Shelby Magistrate Judge Dustin B. Pead

Defendants.

AMENDED COMPLAINT Plaintiffs bring this action and, demanding trial by jury of all issues triable by jury, allege as follows:

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PRELIMINARY STATEMENT 1. Through this case, Plaintiffs challenge gross criminality and misconduct in which the National Security Agency (“NSA”), Federal Bureau of Investigation (“FBI”) and their employees and agents, Does #1-50, engaged, with the authorization and encouragement of thenPresident George W. Bush (“Bush”), then-Vice-President Richard B. Cheney (“Cheney”), David Addington (“Addington”), and Michael W. Hayden (“Hayden”), in blatant and knowing violation of the United States Constitution, the Utah Constitution, and numerous state and federal statutes (including the Foreign Intelligence Surveillance Act (“FISA”), which was passed by Congress in 1978 to prevent the very sorts of abuses and violations of privacy at issue in this matter). 2. Among the unlawful and unconstitutional acts by Bush, Cheney, Addington, and Hayden were the authorization of the NSA to engage in widespread, indiscriminate communications surveillance, interception, and analysis, without warrants and without probable cause. Beginning in October 2001, and continuing for several years, Bush secretly and illegally ordered and authorized the NSA to spy on the communications of people in the United States without court-approved warrants legally required for domestic spying. 3. Pursuant to authority provided by Bush in October 2001 and later orders, the NSA and employees and agents of the NSA illegally monitored the international telephone calls and international e-mail messages of people inside the United States without warrants. Since October 2001, Bush had authorized and ordered the NSA, in a program known as “the President’s Surveillance Program,” (and sometimes simply as “the President’s Program”), pursuant to which information gathered during the course of illegal surveillance was maintained in a “security
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compartment” codenamed “STELLARWIND”, to engage in widespread, warrantless, unconstitutional, felonious surveillance of email, text, internet, and telephone communications in the United States.
4. Then-Vice-President Cheney and his legal counsel Addington were instrumental in authorizing and encouraging the illegal and unconstitutional surveillance, with Addington drafting a secret written authorization for NSA Director Hayden to keep in his safe.
5. Later, that surveillance evolved, in part, into blanket, indiscriminate, warrantless, unconstitutional and otherwise illegal surveillance of the contents of every email and text message, and the metadata of every telephone call (i.e., the times, length, and numbers involved in every telephone call), to and from every person engaging in those types of communications in Salt Lake City, Utah, and in the areas in the vicinity of every other Olympic venue, during the 2002 Salt Lake Winter Olympic Games.
6. Although Bush was President of the United States at the time, although Cheney was Vice-President of the United States at the time, although Addington was legal counsel to the VicePresident at the time, and although Hayden was director of the NSA, they had no legal authority whatsoever to authorize surveillance that so clearly was in violation of the Fourth Amendment to the United States Constitution, the Foreign Intelligence Surveillance Act, and other domestic federal and state laws. In fact, under FISA, every instance of the surveillance engaged in by Does 1-50 and authorized and encouraged by Bush, Cheney, and Addington, all of which was sought and requested by Hayden, was a felony.
7. The expressed views of Bush, Cheney, and Addington that the Executive Branch, and the President in particular, were not bound by laws passed by Congress because of the national
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security situation at the time were contrary to the core principles of our constitutional republic, the rule of law, the constitutional system of checks and balances, and the rights of people in the United States to privacy and to freedom from unreasonable searches and seizures. Bush, Cheney, Addington, Hayden, and other agents of the Executive Branch were not above the law and, hence, acted completely outside their authority and outside the Constitution in authorizing wholesale spying by the federal government on people in the United States.
8. Bush, Cheney, Addington, and Hayden well knew that their authorization and encouragement of widespread, warrantless surveillance of communications in the United States— without any showing of probable cause to believe a crime had been, or was about to be, committed by any of the parties to the communications—were unconstitutional and in violation of applicable federal statutes. Hence, their authorizations and encouragement of the illegal and unconstitutional surveillance were willful and intentional, and were committed with criminal intent. Bush demonstrated several times, after he had ordered, authorized, and encouraged the illegal surveillance, that he knew such surveillance was unlawful and unconstitutional. For instance, Bush made the following statements about constitutional and other legal requirements he knew he had already violated with respect to the surveillance of communications:
• On April 19, 2004, Bush deceitfully implied to the American people that his administration was complying with the warrant requirement of the Constitution and FISA, as he described a legal requirement for a wiretap as follows:
You see, what that meant is if you got a wiretap by court order – and, by the way, everything you hear about requires court order, requires there to be permission from a FISA court, for example.
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• The next day, April 20, 2004, Bush deceptively led the public to believe that constitutional requirements for surveillance were being followed, as he recognized the constitutional and other legal requirements he had secretly, consistently, and blatantly violated for two and one-half years at that point, stating:
It requires – a wiretap requires – a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so. It’s important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland because we value the Constitution. • Likewise, on July 20, 2005, Bush admitted to legal standards he knew he had grossly violated, as follows: The Patriot Act helps us defeat our enemies while safeguarding civil liberties for all Americans. The judicial branch has a strong oversight role in the application of the Patriot Act. Law enforcement officers need a federal judge’s permission to wiretap a foreign terrorist’s phone, or to track his calls, or to search his property. Officers must meet strict standards to use any of the tools we’re talking about. And they are fully consistent with the Constitution of the United States. 9. As part of the President’s Surveillance Program, as it evolved to even broader criminality, the NSA, in conjunction with the FBI, and Does 1-50, with the authorization and encouragement of Bush, Cheney, Addington, and Hayden, planned and implemented a mass warrantless surveillance program—for which there was no probable cause, in egregious violation of the United States Constitution and applicable federal statutory laws, including the Foreign Intelligence Surveillance Act, the Wiretap Act, the Privacy Act and the Stored Communications Act—in which blanket surveillance was attempted and achieved during a period preceding the commencement of the 2002 Salt Lake Winter Olympic Games and throughout the period of the
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Games, from at least February 8, 2002 (Opening Ceremony) through at least February 24 (Closing Ceremony), over everyone utilizing email, text message, and telephone communications within designated geographical areas, including Salt Lake City, Utah, and the areas including and in the vicinity of all Olympic venues.
10. That unprecedented surveillance, some of which was first disclosed in a brief description in The Wall Street Journal on August 20, 2013 (entitled “New Details Show Broader NSA Surveillance Reach,” by Siobhan Gorman and Jennifer Valentino-Devries), included the unconstitutional and otherwise illegal interception and key-word spotting analysis of the contents of every text message and email sent and received and information reflecting the time and length of, and telephone numbers involved in, every telephone conversation involving any person within the areas subjected to the blanket surveillance.
11. In some instances, as part of the unconstitutional and illegal blanket surveillance, people or telephone numbers were targeted by the NSA and some of Does 1-50, and telephone conversations involving such targeted telephone numbers were illegally and unconstitutionally recorded and subjected to analysis by the NSA and some of Does 1-50 without a warrant and without probable cause.
12. Consistent with the practice and philosophy of the NSA to horde everything obtained through surveillance, whether legal or illegal, the communications illegally and unconstitutionally subjected to surveillance, interception, and key-word spotting analysis are presently unlawfully stored by the NSA, subject to unlawful access at any time in the future. That illegal storage is consistent with the unlawful storage of massive metadata of telephone calls illegally obtained by the NSA, as recounted recently in American Civil Liberties Union v. Clapper,
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785 F.3d 787 (2d Cir. 2015) (“The records sought . . . are relevant, in the government’s view, because there might at some future point be a need or desire to search them in connection with a hypothetical future inquiry.”).
JURISDICTION AND VENUE 13. This Court has subject matter jurisdiction over the federal claims pursuant to 28 U.S.C. § 1331 and 5 U.S.C. § 702. 14. This Court has supplemental jurisdiction over the state claims pursuant to 28 U.S.C. § 1367. 15. Defendants have sufficient contacts with this district generally and, in particular, with the events described herein, that Defendants are subject to the exercise of jurisdiction of this Court over the person of the Defendants. 16. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391 (b) and (e).
PARTIES 17. Plaintiff Mary Josephina Valdez (“Valdez”), currently a resident of Salt Lake City, resided in Salt Lake County, Utah, during the 2002 Salt Lake Winter Olympic Games. At the time, Valdez was employed at the Small Business Administration (“SBA”), with her office in the Federal Building in Salt Lake City, and was in Salt Lake City to work at the SBA on many of the days during the Olympic Games. She also attended Olympic-related events in Salt Lake City during the period of the 2002 Winter Olympic Games. While in Salt Lake City, she made many telephone calls, both private and business-related, and also communicated on a regular basis by email. During approximately one week during the period of the 2002 Winter Olympic Games, Valdez traveled to Puerto Rico and made many telephone calls to people located in Salt Lake City.
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While at her home, she engaged in frequent landline and cellular phone calls to people located in Salt Lake City.
18. Plaintiff Howard Stephenson (“Stephenson”) is, and during the 2002 Salt Lake Winter Olympic Games was, a resident of Draper, Utah. At all relevant times he has served as President of the Utah Taxpayers Association. Stephenson is, and during the 2002 Salt Lake Winter Olympic Games was, a Utah State Senator in the Utah State Legislature. At all relevant times, Stephenson frequently spent time in Salt Lake City, including at the Utah Capitol Building in Salt Lake City, where the Senate meets when it is in session. The Utah Legislature adjourned for the 2002 Salt Lake Winter Olympic Games, but just prior to the Games, the Legislature was in session full-time and Stephenson was in attendance. Whenever Stephenson was at the Utah Capitol building, he used his Blackberry and a computer to send email messages to people in and outside of Salt Lake City. He also used a land-line telephone and cell phone. For many days during the Olympics, Stephenson was in Salt Lake City, meeting dignitaries from other nations, attending events at nation houses, and also visiting his office in the Utah Capitol Building. Whenever he was in Salt Lake City during the 2002 Salt Lake Winter Olympic Games, Stephenson engaged in email communications, and also engaged in telephone communications utilizing his cell phone and landline when there was a land-line telephone available. During the Opening Ceremony in Salt Lake City, Stephenson’s children were in attendance and texted or emailed Stephenson about the ceremony. Stephenson also took the Heber Creeper train and attended the biathlon Olympic competition at Soldier Hollow, a venue of the 2002 Salt Lake Winter Olympic Games.
19. Plaintiff Deeda Seed (“Seed”), currently a resident of Salt Lake City, lived in Salt Lake City during the time period of the 2002 Salt Lake Winter Olympic Games. At that time, she
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had both a landline and cell phone, with service provided by AT&T, and frequently engaged in telephone calls with people in and outside of Salt Lake City. She also engaged in email communications with people in and outside of Salt Lake City from computers at her home and her place of employment in Salt Lake City. At the time of the 2002 Winter Olympic Games, Seed was employed as Special Project Coordinator with the Salt Lake City Public Library System in Salt Lake City, Utah. Her internet service providers were Quest and Earthlink.
20. Daniel Darger (“Darger”) currently resides, and at the time of the 2002 Salt Lake Winter Olympic Games resided, in Emigration Canyon, Salt Lake County, Utah. At the time of the 2002 Winter Olympic Games, Darger practiced law, with his law office located in Salt Lake City. From his office and from other locations in Salt Lake City, Darger had numerous telephone communications with others, including legally privileged and confidential communications with clients, during the 2002 Salt Lake Winter Olympic Games, both originating and received in Salt Lake City. In addition to his law practice, Darger was the owner of a business located in Salt Lake City through his entity Iguana, LC, which was in the business of operating a restaurant located in Salt Lake City. Darger was also CEO and Chair of the Board of RBD, Inc., dba Dead Goat Saloon, operating a private blues club located in Salt Lake City. Darger had a landline telephone system in his office, the service provider of which was AT&T. He also used two cell phones, utilizing services provided by Verizon and Cricket. At all relevant times, Darger also engaged in email communications, sometimes from a laptop computer he carried with him, including confidential communications with clients, originating and received in Salt Lake City. Darger made and received telephone calls and emails at the locations of all of the businesses with which he was associated during the 2002 Salt Lake Winter Olympic Games. Darger attended Olympic-related events,
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including private parties utilizing The Dead Goat Saloon during the 2002 Winter Olympic Games, and engaged in telephonic and/or email communications during and in connection with those events in Salt Lake City.
21. William Grant Bagley (“Bagley”), a prize-winning editor of eight books on the American West and series editor of the fifteen-volume Arthur H. Clark Company’s documentary history Kingdom in the West: The Mormons and the American Frontier, currently resides, and during the 2002 Salt Lake Winter Olympic Games resided, in Salt Lake City, Utah. At that time, he engaged in many communications by telephone and email from his home and elsewhere in Salt Lake City, with people located in and outside of Salt Lake City, including extremely sensitive and confidential communications in connection with a controversial book Bagley was writing about the Mountain Meadows massacre, the mass slaughter by early Mormon settlers of about 120 men, women, and children, most of them traveling from Arkansas to California.
22. Thomas Nelson Huckin (“Huckin”) currently resides, and during the 2002 Salt Lake Winter Olympic Games resided, in Salt Lake City, Utah. At all relevant times, Huckin was employed at the University of Utah in Salt Lake City as a Professor of English and Writing and as Director of the University Writing Program. During the 2002 Salt Lake Winter Olympic Games, Huckin was a subscriber to telephone service at his home, through AT&T, and utilized that service and a telephone at his office, also through AT&T, and made and received numerous calls from Salt Lake City to and from people located in Salt Lake City. Huckin also communicated while in Salt Lake City through two email accounts, one that was his private account and another that was his office account at the University of Utah. Huckin’s email communications were with people both in and outside of Salt Lake City.
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23. During the 2002 Salt Lake Winter Olympic Games, Plaintiffs utilized the services of one or more telecommunications service providers through which the NSA and Does 1-50, engaged in illegal and unconstitutional surveillance of information that included the length, times, and telephone numbers involved in each telephonic communication. Plaintiffs also subscribed to telecommunications services that allowed the sending of emails and, on a regular basis, sent and received emails while they were in Salt Lake City and near other Olympic venues, all of which were subjected by the NSA and FBI, and some of Does 1-50, to illegal and unconstitutional surveillance, interception, and key-word spotting analysis.
24. Defendant NSA is an agency under the direction and control of the Department of Defense charged with collecting, processing, and disseminating foreign signals intelligence. The NSA has acted far beyond its proper, assigned scope and has been responsible for the program of widespread illegal and unconstitutional surveillance described herein. During the course of that surveillance, the NSA acted in collaboration with the FBI, an intelligence and security service of the United States, serving also as the nation’s major federal law enforcement organization, under the direction and control of the Department of Justice. The FBI has a long record of abuses of the Constitution and other federal laws, including violations of surveillance prohibitions and limitations. The NSA worked in conjunction with the FBI in subjecting private communications by text messages, emails, and telephone to illegal and unconstitutional surveillance, interception, and key-word spotting analysis.
25. Defendant Bush was the 43rd President of the United States, who served as President from 2001 to 2009. Bush expressed and acted on the view that, as President following the attacks on the United States on September 11, 2001, he was above the law, able to ignore and
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act in violation of laws passed by Congress and the Constitution. He was the first President in U.S. history to authorize and/or condone torture of human beings, all of which was blatantly illegal under domestic and international law, and, knowing he was violating laws passed by Congress and the Constitution, ordered illegal and unconstitutional surveillance to be conducted by the NSA, and then deceived the public about it.
26. Defendant Hayden was Director of the NSA from 1999 to 2005. Hayden requested and urged that the NSA be permitted to engage in widespread warrantless surveillance of electronic communications, including text messages, emails, and telephone communications. Hayden sought and received written authorization to engage in the clearly illegal and unconstitutional surveillance and caused the NSA to engage in such surveillance, including the massive, indiscriminate, warrantless surveillance of the contents of text messages, emails, and telephone calls originating or received in Salt Lake City and in the vicinity of other Olympic venues during the 2002 Salt Lake Winter Olympic Games.
27. Defendant Cheney was Vice President during both terms of the Bush presidency. Prior to that, he was a Congressman, a presidential aide to Presidents Nixon and Ford, and Secretary of Defense during the administration of George H.W. Bush. Cheney has been a consistent proponent, since his work with the Nixon administration and his tenure in Congress, of the notion that the President is above the law, not hampered by laws passed by Congress or by the Constitution, when important national security matters are at issue. Consistent with his notion regarding an imperial, law-breaking presidency, Cheney authorized, or purported to authorize, the illegal, unconstitutional surveillance, interception, and analysis of electronic communications by the NSA and was instrumental in causing the illegal surveillance program to be implemented.
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28. Defendant Addington was legal counsel for Cheney during all times relevant to this matter. Later, he served as Cheney’s Chief of Staff. Addington oversaw the authorization of the broad, widespread, illegal and unconstitutional surveillance program that was implemented by the NSA. In October, 2001, he drafted the written authorization for illegal surveillance by the NSA that was provided to Hayden.
29. Does 1-50 are or were agents of the NSA and FBI presently unknown to Plaintiffs who authorized, oversaw, and/or implemented the illegal surveillance alleged herein, each in their personal capacities.
Count I Violation of Fourth Amendment of United States Constitution and
Article 1, § 14 of Utah Constitution – Damages Plaintiffs v. Bush (in his personal capacity), Cheney (in his personal capacity), Addington (in his personal capacity), Hayden (in his personal capacity), Does 1-50 (unknown agents of the NSA and FBI who authorized, oversaw, and/or implemented the illegal surveillance alleged herein, each in their personal capacities) 30. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding paragraphs of this Complaint, as if set forth fully herein. 31. Plaintiffs had, and have, a reasonable expectation of privacy in their communications, contents of communications, and/or records pertaining to their communications transmitted, collected, or stored by any telecommunications company. 32. Defendants intentionally aided, abetted, counseled, commanded, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, and conspired in the commission of the abovedescribed acts of acquisition, interception, surveillance and analysis of Plaintiffs’ communications,
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contents of communications, and records pertaining to their communications transmitted, collected, and/or stored by telecommunication service providers without judicial or other lawful authorization, probable cause, and/or individualized suspicion, in violation of statutory and constitutional limitations, and in excess of statutory and constitutional authority.
33. One or more telecommunication service providers acted as the agent of Defendants in performing, participating in, enabling, contributing to, facilitating, or assisting in the commission of the above-described acts of acquisition, interception, surveillance and analysis of communications of Plaintiffs, contents of communications, and records pertaining to their communications transmitted, collected, and/or stored by the telecommunication service provider without judicial or other lawful authorization, probable cause, and/or individualized suspicion.
34. Clearly established law, including the plain text of the Fourth Amendment, indicated to any reasonable person that surveillance of the contents of private communications without a warrant or probable cause was a violation of statutory and constitutional rights. Even more obviously, blanket surveillance of the contents of messages of all individuals within large, geographically targeted areas, without a warrant, without probable cause, and without individualized suspicion must have been known at all relevant times to have been wholly unconstitutional and in violation of federal surveillance and privacy statutes.
35. At all relevant times, Defendants committed, knew of, and/or acquiesced in all of the above-described acts, and failed to obtain judicial or other lawful authorization and to conform their conduct to the requirements of the Fourth Amendment of the United States Constitution and Article 1, § 14 of the Utah Constitution.
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36. By the acts alleged herein, Defendants have violated Plaintiffs’ reasonable expectations of privacy and denied Plaintiffs their right to be free from unreasonable searches and seizures as guaranteed by the Fourth Amendment of the United States Constitution and Article 1, § 14 of the Utah Constitution.
37. By the acts alleged herein, Defendants’ conduct has proximately caused significant harm to Plaintiffs, including the invasions and violations of Plaintiffs’ rights to privately communicate, and to privately receive communications, without interception, or the threat of interception, by the federal government and the invasions and violations of Plaintiffs’ rights to freely and privately associate with others without governmental monitoring, intimidation, and the continuing anxiety and immensely disturbing uncertainty about what information has been stored and how it will or might be used at any future time. In short, the Plaintiffs have suffered, and continue to suffer, the harm of their privacy and freedom to associate without governmental interference, spying, and the storage of and accessibility to private communications being unlawfully violated and threatened in the same sense as citizens suffering tremendous harm from the destruction of privacy and creation of intimidation, loss of confidence in government, and promotion of continuing fear by Big Brother in George Orwell’s 1984. The very real, fundamental harm has included the undermining of what it once meant to be a resident in a free country that observed the rule of law, provided for checks and balances between the branches of government, and honored the right of privacy of every individual. The diminution of that sense of freedom and individual liberty is a very real and life-changing and society-transforming injury-in-fact – a far greater and more fundamental injury than any financial injuries that are subjects of lawsuits decided by our nation’s courts daily.
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38. Plaintiffs have no other adequate remedy at law for the Count I Defendants’ violation of Plaintiffs’ rights to be free from unreasonable searches and seizures as guaranteed by the Fourth Amendment of the United States Constitution and Article 1, § 14 of the Utah Constitution.
39. Plaintiffs seek an award of their actual damages and punitive damages against the Count I Defendants, and such other and further relief as is proper.
Count II Violation of Fourth Amendment of United States
Constitution - Equitable Relief Plaintiffs v. NSA
40. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding paragraphs of this Complaint, as if set forth fully herein.
41. Plaintiffs had, and have, a reasonable expectation of privacy in their communications, contents of communications, and/or records pertaining to their communications transmitted, collected, or stored by any telecommunications company.
42. Defendant NSA has intentionally aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, and conspired in the commission of the above-described acts of acquisition, interception, surveillance and analysis of Plaintiffs’ communications, contents of communications, and records pertaining to their communications transmitted, collected, and/or stored by telecommunication service providers without judicial or other lawful authorization, probable cause, and/or individualized suspicion, in violation of statutory and constitutional limitations, and in excess of statutory and constitutional authority.
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43. One or more telecommunication service providers acted as the agent of Defendant NSA in performing, participating in, enabling, contributing to, facilitating, or assisting in the commission of the above-described acts of acquisition, interception, surveillance and analysis of Plaintiffs’ communications, contents of communications, and records pertaining to their communications transmitted, collected, and/or stored by the telecommunication service provider without judicial or other lawful authorization, probable cause, and/or individualized suspicion.
44. Defendant NSA has participated or directly engaged in the storage of the communications illegally subjected to surveillance as described herein in connection with the 2002 Salt Lake Winter Olympic Games and continues to store those communications, which may be accessed, reviewed, and utilized at any time in the future, and is thereby irreparably harming Plaintiffs.
45. Clearly established law, including the plain text of the Fourth Amendment, indicated to any reasonable person that surveillance and storage of the contents of private communications without warrant or probable cause was a violation of statutory and constitutional rights. Hence, blanket surveillance and storage of the contents of messages of all individuals within large, geographically targeted areas, without a warrant, without probable cause, and without individualized suspicion, must have been known at all relevant times to have been wholly unconstitutional and in violation of federal surveillance and privacy statutes.
46. At all relevant times, Defendant NSA committed, knew of, and/or acquiesced in all of the above-described acts, and failed to obtain judicial or other lawful authorization and to conform its conduct to the requirements of the Fourth Amendment of the United States Constitution.
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47. By the acts alleged herein, Defendant NSA has violated the reasonable expectations of privacy of Plaintiffs and denied Plaintiffs their right to be free from unreasonable searches and seizures as guaranteed by the Fourth Amendment of the United States Constitution and Article 1, § 14 of the Utah Constitution.
48. By the acts alleged herein, Defendant NSA’s conduct has proximately caused, and continues to cause, significant harm to Plaintiffs, including the invasions and violations of Plaintiffs’ rights to privately communicate, and to privately receive communications, without interception, storage, and accessibility, or the threat of interception, storage, and accessibility, by the federal government and the invasions and violations of Plaintiffs’ rights to freely and privately associate with others without governmental monitoring, intimidation, and the continuing anxiety and immensely disturbing uncertainty about what information has been stored and how it will or might be used at any future time. In short, as a result of NSA’s misconduct, the Plaintiffs have suffered, and continue to suffer, the harm of their privacy and freedom to associate without governmental interference, spying, and the storage of and accessibility to private communications being unlawfully violated and threatened in the same sense as citizens suffering tremendous harm from the destruction of privacy and creation of intimidation, loss of confidence in government, and promotion of continuing fear by Big Brother in George Orwell’s 1984. The very real, fundamental harm has included the undermining of what it once meant to live in a free country that observed the rule of law, provided for checks and balances between the branches of government, and honored the right of privacy of every individual. The diminution of that sense of freedom and individual liberty is a very real and life-changing and society-transforming injury-in-
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fact – a far greater and more fundamental injury than any financial injuries that are the subjects of lawsuits decided by our nation’s courts daily.
49. Only by openly disclosing what has been stored and is subject to future access, and providing assurances that the above-described communications by Plaintiffs and private information about those communications have been deleted and permanently removed from any records and data stored by Defendants, rendering them inaccessible for future access, will Plaintiffs be relieved from their continuing anxiety, distress, and overriding sense of insecurity caused by the ongoing storage and accessibility of Plaintiffs’ communications. Further, only through openness and transparency on the part of Defendant NSA, consistent with the openness and transparency in government promised but not delivered by President Obama and his administration, will Plaintiffs be at least in part relieved from the sustained undermining of the crucial sense that Plaintiffs once had of what it meant to be citizens in a free country that observed the rule of law and honored the rights of privacy of every individual.
50. Plaintiffs seek a declaration by this Court that Defendant NSA has violated Plaintiffs’ Fourth Amendment rights.
51. Injunctive relief as to Defendant NSA for violations of federal law and the United States Constitution is allowed under 5 U.S.C. § 702. The Court should enjoin the Defendants NSA, its agents, successors, and assigns, and all those in active concert and participation with them, from continuing to store the communications of Plaintiffs and from making such communications accessible in the future. This Court should further require Defendant NSA to disclose what has been stored, subject to future access, and provide assurance that the above-described communications by Plaintiffs have been deleted and permanently removed from any records and
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data stored by Defendant NSA, rendering them inaccessible for future access. The Court should

award such other and further equitable relief as is proper.

Count III

Violation of First Amendment of the United States Constitution – Damages

Plaintiffs v. Bush (in his personal capacity), Cheney (in his personal capacity), Hayden (in his personal capacity), Addington (in his personal capacity), Does 1-50 (unknown agents of the NSA and FBI who authorized, oversaw, and/or implemented the illegal surveillance alleged herein, each in their personal capacities)

52.

Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

paragraphs of this Complaint, as if set forth fully herein.

53.

Plaintiffs used telecommunication service providers to exercise their rights of free

speech, association, and privacy, to speak or receive speech privately and to associate privately.

54.

Count III Defendants intentionally aided, abetted, counseled, commanded, induced,

procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled,

contributed to, facilitated, directed, controlled, assisted in, and conspired in the commission of the

above-described acts of acquisition, interception, surveillance and analysis of Plaintiffs’

communications, contents of communications, and records pertaining to their communications

transmitted, collected, and/or stored by telecommunication service providers without judicial or

other lawful authorization, probable cause, and/or individualized suspicion, in violation of

statutory and constitutional limitations, and in excess of statutory and constitutional authority.

55.

By the acts alleged herein, Defendants’ conduct has proximately caused, and

continues to cause, significant harm to Plaintiffs, including the invasions and violations of

Plaintiffs’ rights to privately communicate, and to privately receive communications, without

interception, storage, and accessibility, or the threat of interception, storage, and accessibility, by

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the federal government and the invasions and violations of Plaintiffs’ rights to freely and privately

associate with others without governmental monitoring, intimidation, and the continuing anxiety

and immensely disturbing uncertainty about what information has been stored and how it will or

might be used at any future time. In short, the Plaintiffs have suffered, and continue to suffer, the

harm of their privacy and freedom to associate without governmental interference, spying, and the

storage of and accessibility to private communications being unlawfully violated and threatened

in the same sense as citizens suffering tremendous harm from the destruction of privacy and

creation of intimidation, loss of confidence in government, and promotion of continuing fear by

Big Brother in George Orwell’s 1984. The very real, fundamental harm has included the

undermining of what it once meant to be in a free country that observed the rule of law, provided

for checks and balances between the branches of government, and honored the right of privacy of

every individual. The diminution of that sense of freedom and individual liberty is a very real and

life-changing and society-transforming injury-in-fact – a far greater and more fundamental injury

than any financial injuries that are the subject of lawsuits decided by our nation’s courts daily.

Plaintiffs have no other adequate remedy at law for the Count III Defendants’ violation of

Plaintiffs’ rights to speak, receive speech, and associate privately as guaranteed by the First

Amendment of the United States Constitution.

56.

Defendants engaged in the misconduct intentionally, with deliberate indifference,

or with reckless disregard of, the constitutional rights of Plaintiffs.

57.

Plaintiffs seek an award of actual damages and punitive damages against the Count

III Defendants, and for such other or further relief as is proper.

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Count IV Violation of First Amendment of the Constitution of the United States – Equitable Relief
Plaintiffs v. NSA 58. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding paragraphs of this Complaint, as if set forth fully herein. 59. Plaintiffs used telecommunication service providers to exercise their rights of free speech, association, and privacy, to speak or receive speech privately and to associate privately. 60. Defendant NSA aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, and conspired in the commission of the abovedescribed acts of acquisition, interception, surveillance and analysis of Plaintiffs’ communications, contents of communications, and records pertaining to their communications transmitted, collected, and/or stored by telecommunication service providers without judicial or other lawful authorization, probable cause, and/or individualized suspicion, in violation of statutory and constitutional limitations, and in excess of statutory and constitutional authority. 61. By the acts alleged herein, Defendant NSA’s conduct proximately caused harm, and continues to cause harm, to Plaintiffs, including the invasions and violations of Plaintiffs’ rights to privately communicate, and to privately receive communications, without interception, storage, and accessibility, or the threat of interception, storage, and accessibility, by the federal government and the invasions and violations of Plaintiffs’ rights to freely and privately associate with others without governmental monitoring, intimidation, and the continuing anxiety and immensely disturbing uncertainty about what information has been stored and how it will or might
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be used at any future time. In short, the Plaintiffs have suffered, and continue to suffer, the harm of their privacy and freedom to associate without governmental interference, spying, and the storage of and accessibility to private communications being unlawfully violated and threatened in the same sense as citizens suffering tremendous harm from the destruction of privacy and creation of intimidation, loss of confidence in government, and promotion of continuing fear by Big Brother in George Orwell’s 1984. The very real, fundamental harm has included the undermining of what it once meant to live in a free country that observed the rule of law, provided for checks and balances between the branches of government, and honored the right of privacy of every individual. The diminution of that sense of freedom and individual liberty is a very real and life-changing and society-transforming injury-in-fact – a far greater and more fundamental injury than any financial injury that is the subject of lawsuits decided by our nation’s courts daily.
62. Defendant NSA’s conduct was done intentionally, with deliberate indifference, or with reckless disregard of, Plaintiffs’ constitutional rights.
63. Defendant NSA has participated and directly engaged in the storage of the communications illegally subjected to surveillance as described herein in connection with the 2002 Salt Lake Winter Olympic Games and continues to store those communications, which may be accessed, reviewed, and utilized at any time in the future, in violation of Plaintiffs’ constitutional rights, and is thereby irreparably harming Plaintiffs.
64. Plaintiffs have no other adequate remedy at law for Defendant NSA’s continuing unlawful conduct, and Defendant NSA will continue to violate Plaintiffs’ legal rights unless enjoined and restrained by this Court.
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65. Injunctive relief as to Defendant NSA for its violations of federal law and the United States Constitution is allowed under 5 U.S.C. § 702. The Court should enjoin Defendant NSA, its agents, successors, and assigns, and all those in active concert and participation with them, from continuing to store the communications of Plaintiffs described herein and from making such communications accessible in the future. This Court should further require Defendant NSA to disclose what has been stored, subject to future access, and provide assurance that the above described communications by Plaintiffs have been deleted and permanently removed from any records and data stored by Defendant NSA, rendering them inaccessible for future access. The Court should award such other and further equitable relief as is proper.
Count V Violation of FISA (50 U.S.C. § 1809, actionable under 50 U.S.C. § 1810) – Damages
Plaintiffs v. United States, FBI, NSA, Bush (in his personal capacity), Cheney (in his personal capacity), Hayden (in his personal capacity), Addington (in his personal capacity), Does 1-50 (unknown agents of the NSA and FBI who authorized, oversaw, and/or implemented the illegal surveillance alleged herein, each in their personal capacities) 66. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding paragraphs of this Complaint, as if set forth fully herein. 67. In relevant part, 50 U.S.C. § 1809 makes it unlawful to intentionally engage in electronic surveillance under color of law “except as authorized in this chapter, chapter 119, 121, or 206 of Title 18 or by any express statutory authorization that is an additional exclusive means for conducting electronic surveillance under section 1812 of this title.” 68. Count V Defendants intentionally aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled,
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contributed to, facilitated, directed, controlled, assisted in, and conspired in the commission of such acquisition, by means of a surveillance device, the contents of one or more wire communications to or from Plaintiffs or other information in which Plaintiffs have a reasonable expectation of privacy, without the consent of any party thereto, and such acquisition occurred in the United States.
69. Count V Defendants have directly performed, or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, and conspired in the commission of, the above-described acts of acquisition, interception, surveillance and analysis of Plaintiffs’ communications, contents of communications, and records pertaining to their communications transmitted, collected, and/or stored by telecommunication service providers without judicial or other lawful authorization, probable cause, and/or individualized suspicion, in violation of statutory and constitutional limitations, and in excess of statutory and constitutional authority.
70. By the acts alleged herein, Count V Defendants, acting in excess of their statutory authority and in violation of statutory limitations, have intentionally engaged in, or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, conspired in the commission of, electronic surveillance (as defined by 50 U.S.C. § 1801(f)) under color of law, not authorized by any statute, to which Plaintiffs and class members were subjected in violation of 50 U.S.C. § 1809.
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71. By the acts alleged herein, Count V Defendants’ conduct proximately caused harm to Plaintiffs, including the invasions and violations of Plaintiffs’ rights to privately communicate, and to privately receive communications, without interception, storage, and accessibility, or the threat of interception, storage, and accessibility, by the federal government and the invasions and violations of Plaintiffs’ rights to freely and privately associate with others without governmental monitoring, intimidation, and the continuing anxiety and immensely disturbing uncertainty about what information has been stored and how it will or might be used at any future time. In short, the Plaintiffs have suffered, and continue to suffer, the harm of their privacy and freedom to associate without governmental interference, spying, and the storage of and accessibility to private communications being unlawfully violated and threatened in the same sense as citizens suffering tremendous harm from the destruction of privacy and creation of intimidation, loss of confidence in government, and promotion of continuing fear by Big Brother in George Orwell’s 1984. The very real, fundamental harm has included the undermining of what it once meant to live in a free country that observed the rule of law, provided for checks and balances between the branches of government, and honored the right of privacy of every individual. The diminution of that sense of freedom and individual liberty is a very real and life-changing and society-transforming injury-infact – a far greater and more fundamental injury than financial injuries that are the subjects of lawsuits decided by our nation’s courts daily.
72. Plaintiffs are entitled to relief under 50 U.S.C. § 1810, which provides civil liability against any person who subjects another to surveillance in violation of 50 U.S.C. § 1809.
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73. Plaintiffs seek an award of their statutory or actual damages, punitive damages, reasonable attorney’s fees and other investigation and litigation costs reasonably incurred against the Count V Defendants, and such other or further relief as is proper.
Count VI Violation of Wiretap Act (18 U.S.C. § 2511, actionable under 18 U.S.C. § 2520) – Damages
Plaintiffs v. Bush (in his personal capacity), Cheney (in his personal capacity), Hayden (in his personal capacity), Addington (in his personal capacity), Does 1-50 (unknown agents of the NSA and FBI who authorized, oversaw, and/or implemented the illegal surveillance alleged herein, each in their personal capacities) 74. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding paragraphs of this Complaint, as if set forth fully herein. 75. In relevant part, 18 U.S.C. § 2511 makes it unlawful to intentionally intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication except as specifically provided by the Wiretap Act. 76. By the acts alleged herein, Count VI Defendants have intentionally and willfully intercepted, endeavored to intercept, or procured another person to intercept or endeavor to intercept, Plaintiffs’ wire or electronic communications in violation of 18 U.S.C. § 2511(1)(a). 77. Count VI Defendants, have intentionally and willfully used, or endeavored to use, the contents of Plaintiffs’ wire or electronic communications, while knowing or having reason to know that the information was obtained through the interception of wire or electronic communications in violation of 18 U.S.C. § 2511(1)(d). 78. Count VI Defendants have intentionally and willfully caused, or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, participated in, contributed to, facilitated, directed, controlled, assisted in and conspired to cause
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telecommunication service providers’ divulgence of Plaintiffs’ wire or electronic communications to Count VI Defendants while in transmission, in violation of 18 U.S.C. § 2511(3)(a).
79. Count VI Defendants have committed these acts of interception and use of Plaintiffs’ communications directly, or by aiding, abetting, counseling, commanding, inducing, procuring, encouraging, promoting, instigating, advising, willfully causing, participating in, enabling, contributing to, facilitating, directing, controlling, assisting in, and conspiring in their commission.
80. Telecommunication service providers acted as the agents of Count VI Defendants in performing, participating in, enabling, contributing to, facilitating, or assisting in the commission of these acts of interception, disclosure, divulgence and/or use of Plaintiffs’ communications.
81. Count VI Defendants did not notify Plaintiffs of the above-described intentional interception, disclosure and/or use of their wire or electronic communications, nor did Plaintiffs consent to the interception, disclosure and/or use of their wire or electronic communications.
82. Plaintiffs have been and are aggrieved by Count VI Defendants’ intentional and willful interception, disclosure, divulgence and/or use of their wire or electronic communications. By the acts alleged herein, Count VI Defendants’ conduct proximately caused harm to Plaintiffs, including the invasions and violations of Plaintiffs’ rights to privately communicate, and to privately receive communications, without interception, storage, and accessibility, or the threat of interception, storage, and accessibility, by the federal government and the invasions and violations of Plaintiffs’ rights to freely and privately associate with others without governmental monitoring, intimidation, and the continuing anxiety and immensely disturbing uncertainty about what
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information has been stored and how it will or might be used at any future time. In short, the Plaintiffs have suffered, and continue to suffer, the harm of their privacy and freedom to associate without governmental interference, spying, and the storage of and accessibility to private communications being unlawfully violated and threatened in the same sense as citizens suffering tremendous harm from the destruction of privacy and creation of intimidation, loss of confidence in government, and promotion of continuing fear by Big Brother in George Orwell’s 1984. The very real, fundamental harm has included the undermining of what it once meant to live in a free country that observed the rule of law, provided for checks and balances between the branches of government, and honored the right of privacy of every individual. The diminution of that sense of freedom and individual liberty is a very real and life-changing and society-transforming injury-infact – a far greater and more fundamental injury than any financial injuries that the subjects of lawsuits decided by our nation’s courts daily.
83. Plaintiffs have therefore been subjected by Count VI Defendants to the unlawful interception, and intentional use of Plaintiffs’ wire, oral, and/or electronic communications in violation of 18 U.S.C. § 2511, entitling them to relief against Count VI Defendants pursuant to 18 U.S.C. § 2520.
84. Pursuant to 18 U.S.C. § 2520, which provides a civil action for any person whose wire or electronic communications have been intercepted, disclosed, divulged or intentionally used in violation of 18 U.S.C. § 2511, Plaintiffs seek from the Count VI Defendants their statutory damages or actual damages; punitive damages as appropriate; reasonable attorney’s fees; litigation costs; and such other and further relief as is proper.
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Count VII Violation of Stored Communications Act (18 U.S.C. § 2703, actionable under 18 U.S.C. §
2707) – Damages Plaintiffs v. Bush (in his personal capacity), Cheney (in his personal capacity), Addington (in his personal capacity), Hayden (in his personal capacity), Does 1-50 (unknown agents of the NSA and FBI who authorized, oversaw, and implemented the illegal surveillance alleged herein, each in their personal capacities) 85. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding paragraphs of this Complaint, as if set forth fully herein. 86. In relevant part, 18 U.S.C. § 2703 provides that a “governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication” only pursuant to (1) a warrant for communications stored for one hundred and eighty days or less and (2) a warrant or with prior notice and a subpoena or court order for communications stored longer than one hundred and eighty days. 87. Count VII Defendants intentionally and willfully required telecommunication service providers to disclose, or aided, abetted, counseled, induced, procured, encouraged, promoted, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in requiring from telecommunication service providers, the disclosure, to Defendants the contents of Plaintiffs’ communications while in electronic storage by telecommunication service providers’ electronic communication service, and/or while carried or maintained by telecommunication service providers’ remote computing service, in violation of 18 U.S.C. §§ 2703(a) and/or (b). In doing so, Count VII Defendants have acted in excess of their statutory authority and in violation of statutory limitations.
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88. One or more telecommunication service providers acted as the agent of Count VII Defendants or those with whom Count VII Defendants conspired in performing, participating in, enabling, contributing to, facilitating, or assisting in the commission of these acts of disclosure of Plaintiffs’ communications.
89. Count VII Defendants did not notify Plaintiffs of the disclosure of their communications, nor did Plaintiffs consent to the disclosure of their communications.
90. Plaintiffs have been and are aggrieved by Defendants’ above-described soliciting and obtaining of the disclosure of the contents of their communications. By the acts alleged herein, Count VII Defendants’ conduct proximately caused harm to Plaintiffs, including the invasions and violations of Plaintiffs’ rights to privately communicate, and to privately receive communications, without interception, storage, and accessibility, or the threat of interception, storage, and accessibility, by the federal government and the invasions and violations of Plaintiffs’ rights to freely and privately associate with others without governmental monitoring, intimidation, and the continuing anxiety and immensely disturbing uncertainty about what information has been stored and how it will or might be used at any future time. In short, the Plaintiffs have suffered, and continue to suffer, the harm of their privacy and freedom to associate without governmental interference, spying, and the storage of and accessibility to private communications being unlawfully violated and threatened in the same sense as citizens suffering tremendous harm from the destruction of privacy and creation of intimidation, loss of confidence in government, and promotion of continuing fear by Big Brother in George Orwell’s 1984. The very real, fundamental harm has included the undermining of what it once meant to live in a free country that observed the rule of law, provided for checks and balances between the branches of government, and
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honored the right of privacy of every individual. The diminution of that sense of freedom and individual liberty is a very real and life-changing and society-transforming injury-in-fact – a far greater and more fundamental injury than any financial injuries that are the subject of lawsuits decided by our nation’s courts daily.
91. Clearly established law indicated to any reasonable person that requiring a telecommunication service provider to disclose the contents of its customers’ messages required following the procedures of the Stored Communications Act. Requiring a telecommunication service provider to disclose the contents of messages of all individuals within large, geographically targeted areas, without a warrant, without probable cause, and without individualized suspicion must have been known at all relevant times to have been wholly unconstitutional and in violation of federal surveillance and privacy statutes.
92. Count VII Defendants’ actions were patently egregious and unlawful, in flagrant disregard of Plaintiffs’ statutory and constitutional rights.
93. Class VII Defendants therefore knowingly and willfully violated provisions of the Stored Communication Act, entitling Plaintiffs to relief under 18 U.S.C. § 2707, including actual damages (in an amount of no less than the sum of $1,000 for each Plaintiff, punitive damages, a reasonable attorney’s fee and other litigation costs reasonably incurred, and such other relief as is proper.
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Count VIII Violation of Stored Communications Act (18 U.S.C. § 2703, actionable under 18 U.S.C. §
2707) – Equitable relief Plaintiffs v. NSA and FBI 94. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding paragraphs of this Complaint, as if set forth fully herein. 95. In relevant part, 18 U.S.C. § 2703 provides that a “governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication” only pursuant to (1) a warrant for communications stored for one hundred and eighty days or less and (2) a warrant or with prior notice and a subpoena or court order for communications stored longer than one hundred and eighty days. 96. Count VIII Defendants intentionally and willfully required telecommunication service providers to disclose, or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in requiring from telecommunication service providers the disclosure, to Defendants the contents of Plaintiffs’ communications while in electronic storage by telecommunication service providers’ electronic communication service, and/or while carried or maintained by telecommunication service providers’ remote computing service, in violation of 18 U.S.C. §§ 2703(a) and/or (b). In doing so, Count VIII Defendants have acted in excess of their statutory authority and in violation of statutory limitations. 97. Defendants did not notify Plaintiffs of the disclosure of their communications, nor did Plaintiffs consent to such disclosure of their communications.
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98. Count VIII Defendants have participated or directly engaged in the storage of the communications illegally subjected to surveillance as described herein in connection with the 2002 Salt Lake Winter Olympic Games and continue to store those communications, which may be accessed, reviewed, and utilized at any time in the future.
99. Plaintiffs have been and are aggrieved by Defendants’ above-described soliciting and obtaining of disclosure of the contents of communications and by the illegal continued storage of those communications, which may be accessed, reviewed, and utilized at any time in the future. By the acts alleged herein, Count VIII Defendants’ conduct proximately caused harm, and continue to cause harm, to Plaintiffs, including the invasions and violations of Plaintiffs’ rights, and the rights of members of the class, to privately communicate, and to privately receive communications, without interception, storage, and accessibility, or the threat of interception, storage, and accessibility, by the federal government and the invasions and violations of Plaintiffs’ rights to freely and privately associate with others without governmental monitoring, intimidation, and the continuing anxiety and immensely disturbing uncertainty about what information has been stored and how it will or might be used at any future time. In short, the Plaintiffs have suffered, and continue to suffer, the harm of their privacy and freedom to associate without governmental interference, spying, and the storage of and accessibility to private communications being unlawfully violated and threatened in the same sense as citizens suffering tremendous harm from the destruction of privacy and creation of intimidation, loss of confidence in government, and promotion of continuing fear by Big Brother in George Orwell’s 1984. The very real, fundamental harm has included the undermining of what it once meant to be a resident in a free country that observed the rule of law, provided for checks and balances between the branches of government,
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and honored the right of privacy of every individual. The diminution of that sense of freedom and individual liberty is a very real and life-changing and society-transforming injury-in-fact – a far greater and more fundamental injury than any financial injury that is the subject of lawsuits decided by our nation’s courts daily.
100. Clearly established law indicated to any reasonable person that requiring a telecommunication service provider to disclose the content of its customers’ messages required following the procedures of the Stored Communications Act. Requiring a telecommunication service provider to disclose the contents of messages of all individuals within large, geographically targeted areas, without warrant, without probable cause, and without individualized suspicion must have been known at all relevant times to have been wholly unconstitutional and in violation of federal surveillance and privacy statutes.
101. Defendants’ actions were patently egregious and unlawful, in flagrant disregard of Plaintiffs’ statutory and constitutional rights.
102. Defendants therefore knowingly and willfully violated provisions of the Stored Communication Act, entitling Plaintiffs to relief under 18 U.S.C. § 2707.
103. Plaintiffs and have no other adequate remedy at law for the Count VIII Defendants’ continuing unlawful conduct, and the Count VIII Defendants will continue to violate Plaintiffs’ legal rights unless enjoined and restrained by this Court.
104. Injunctive relief as to the federal government Count VIII Defendants for violations of federal law and the United States Constitution is allowed under 5 U.S.C. §702. The Court should enjoin the Count VIII Defendants, their agents, successors, and assigns, and all those in active concert and participation with them, from continuing to store the communications of
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Plaintiffs and from making such communications accessible in the future. This Court should further require Count VIII Defendants to disclose what has been stored, subject to future access, and provide assurance that the above described communications by or to Plaintiffs have been deleted and permanently removed from any records and data stored by either or both of the Count VIII Defendants, rendering them inaccessible for future access. The Court should award such other and further equitable relief as is proper.
Count IX Violation of Privacy Act (actionable under 5 U.S.C. § 552a) – Damages and Equitable
Relief Plaintiffs v. NSA 105. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding paragraphs of this Complaint, as if set forth fully herein. 106. 5 U.S.C. § 552a(e) in relevant part states “[e]ach agency that maintains a system of records shall—(1) maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the President.” 107. 5 U.S.C. § 552a(g)(1) provides in relevant part that: Whenever any agency . . . (D) fails to comply with any other provision of this section, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual the individual may bring a civil action against the agency, and the district courts of the United States shall have jurisdiction in the matters under the provisions of this subsection. 108. The National Security Agency, through its website at https://www.nsa.gov/about/faqs/about_nsa.shtml, as accessed on August 13, 2015, states: NSA/CSS has two interconnected missions: Signals Intelligence (known as SIGINT) and Information Assurance. Through SIGINT,
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we gather information that America's adversaries wish to keep secret. Through Information Assurance, we protect America's vital national security information and systems from theft or damage by others. Taken together, the SIGINT and Information Assurance missions are essential to a third function: enabling Network Warfare, a military operation. Through carrying out its missions, NSA/CSS helps save lives, defend vital networks, and advance our Nation's goals and alliances, while strictly protecting privacy rights guaranteed by the U.S. Constitution and laws. 109. The NSA maintains in its system of records the above-described illegally obtained information about Plaintiffs that is neither relevant nor necessary to accomplish the purpose of the NSA. Rather, the information gathered was pursuant to blanket, indiscriminate, unconstitutional and otherwise illegal surveillance that was not targeted in any way on any particularized suspicion of wrong-doing but, instead, was a massive gathering of private information of everyone engaging in email, text message, and telephonic communications in certain geographic areas. 110. Plaintiffs have been and are aggrieved by Defendant NSA’s maintenance in its records of information of or about private communications in which Plaintiffs engaged. The illegal maintenance by the NSA in its system of records of those communications, which may be accessed, reviewed, and utilized at any time in the has proximately caused harm, and continue to cause harm, to Plaintiffs, including the invasions and violations of Plaintiffs’ rights to privately communicate, and to privately receive communications, without interception, storage, and accessibility, or the threat of interception, storage, and accessibility, by the federal government and the invasions and violations of Plaintiffs’ rights to freely and privately associate with others without governmental monitoring, intimidation, and the continuing anxiety and immensely disturbing uncertainty about what information has been stored and how it will or might be used at any future time. In short, the Plaintiffs have suffered, and continue to suffer, the harm of their
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privacy and freedom to associate without governmental interference, spying, and the storage of and accessibility to private communications being unlawfully violated and threatened in the same sense as citizens suffering tremendous harm from the destruction of privacy and creation of intimidation, loss of confidence in government, and promotion of continuing fear by Big Brother in George Orwell’s 1984. The very real, fundamental harm has included the undermining of what it once meant to be a resident in a free country that observed the rule of law, provided for checks and balances between the branches of government, and honored the right of privacy of every individual. The diminution of that sense of freedom and individual liberty is a very real and lifeand society-changing injury-in-fact – a far greater and more fundamental injury than any financial injury that is the subject of lawsuits decided by our nation’s courts daily.
111. Plaintiffs seek an award against Defendant NSA of their actual damages (in no case less than the sum of $1,000, pursuant to 5 U.S.C. §552a(g)(4)(A)), reasonable attorney’s fees and other investigation and litigation costs reasonably incurred by Plaintiffs, and such other or further relief as is proper.
112. Injunctive relief as to the Defendant NSA for violations of federal law and the United States Constitution is allowed under 5 U.S.C. §702. The Court should enjoin Defendant NSA, its agents, successors, and assigns, and all those in active concert and participation with it, from continuing to store the communications, or information about communications, of Plaintiffs, and from making such communications, or information about such communications, accessible in the future. This Court should further require Defendant NSA to disclose what has been stored, subject to future access, and provide assurance that the above-described communications by or to Plaintiffs have been deleted and permanently removed from any records and data stored by
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Defendant NSA, rendering them inaccessible for future access. The Court should award such other and further equitable relief as is proper.
Count X Violation of Communication Abuse (Utah Code § 76-9-403) – Damages Plaintiffs v. Bush (in his personal capacity), Cheney (in his personal capacity), Hayden (in his personal capacity), Addington (in his personal capacity), Does 1-50 (unknown agents of the NSA and FBI who authorized, oversaw, and/or implemented the illegal surveillance alleged herein, each in their personal capacities) 113. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding paragraphs of this Complaint, as if set forth fully herein. 114. Count X Defendants, without authorization by law, intercepted, or caused the interception of, messages that were privately communicated or received by Plaintiffs without consent of the sender or receiver. 115. Count X Defendants acted intentionally and reprehensibly, in clear violation of Plaintiffs’. Count X Defendants’ actions were in egregious violation of Utah Code Ann. §76-9403, which provides as follows:
(1) A person commits communication abuse if, except as authorized by law, he: (a) Intercepts, without the consent of the sender or receiver, a message by telephone, telegraph, letter, or other means of communicating privately . . . or (b) Divulges without consent of the sender or receiver the existence or contents of any such message if the actor knows that the message was illegally intercepted or if he learned of the message in the course of employment with an agency engaged in transmitting it.
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116. Plaintiffs seek an award against the Count X Defendants of Plaintiffs’ actual damages, punitive damages, reasonable attorney’s fees and other investigation and litigation costs reasonably incurred against the Count X Defendants, and such other or further relief as is proper.
Count XI Violation of the Administrative Procedure Act, 5 U.S.C. § 701 et seq. – Declaratory,
Injunctive, and Other Equitable Relief Plaintiffs v. NSA
117. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding paragraphs of this Complaint, as if set forth fully herein.
118. Count XI Defendants’ actions violated, and continue to violate, the Administrative Procedure Act, 5 U.S.C. § 701 et seq., because Defendants’ actions exceed statutory authority and limitations imposed by Congress through FISA, and through Chapters 119, 121 and 206 of Title 18 of the U.S. Code (the Wiretap Act, the Stored Communications Act, and the Pen Register Statute, respectively) and in violation of statutory rights under those laws; are not otherwise in accordance with law; are contrary to constitutional rights, including the Fourth Amendment and First Amendment; and are taken without observance of procedures required by law.
119. Plaintiffs are aggrieved by these violations because, as described previously in this Complaint, Defendants’ actions have resulted in the interception, acquisition, disclosure, divulgence, use, and/or storage of the contents of their wire and electronic communications, communications records, and other information in violation of their constitutional and statutory rights.
120. Injunctive relief as to the Count XI Defendants for violations of federal law and the United States Constitution is allowed under 5 U.S.C. § 702. The Court should enjoin the Count
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XI Defendants, their agents, successors, and assigns, and all those in active concert and participation with them, from continuing to store the communications, or information about communications, of Plaintiffs, and from making such communications, or information about such communications, accessible in the future. This Court should further require Count XI Defendants to disclose what has been stored, subject to future access, and provide assurance that the abovedescribed communications, and information about communications, by or to Plaintiffs have been deleted and permanently removed from any records and data stored by Count XI Defendants, rendering them inaccessible for future access. The Court should award such other and further equitable relief as is proper.
Count XII Violation of FISA (50 U.S.C. § 1809, actionable under 50 U.S.C. § 1810) – Equitable Relief
Plaintiffs v. NSA 121. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding paragraphs of this complaint, as if set forth fully herein. 122. In relevant part, 50 U.S.C. § 1809 makes it unlawful to intentionally engage in electronic surveillance under color of law “except as authorized in this chapter, chapter 119, 121, or 206 of Title 18 or by any express statutory authorization that is an additional exclusive means for conducting electronic surveillance under section 1812 of this title.” 123. Count XII Defendants intentionally acquired, or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission of, such acquisition, by means of a surveillance device, the contents of one or
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more wire communications to or from Plaintiffs or other information in which Plaintiffs have a reasonable expectation of privacy, without the consent of any party thereto, and such acquisition occurred in the United States.
124. Count XII Defendants have directly performed, or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission of the above-described acts of acquisition, interception, surveillance and/or analysis of Plaintiffs’ communications, contents of communications, and records pertaining to their communications transmitted, collected, and/or stored by telecommunication service providers without judicial or other lawful authorization, probable cause, and/or individualized suspicion, in violation of statutory and constitutional limitations, and in excess of statutory and constitutional authority.
125. By the acts alleged herein, Count XII Defendants, acting in excess of their statutory authority and in violation of statutory limitations, have intentionally engaged in, or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission of, electronic surveillance (as defined by 50 U.S.C. § 1801(f)) under color of law, not authorized by any statute, to which Plaintiffs were subjected in violation of 50 U.S.C. § 1809.
126. Count XII Defendants have participated or directly engaged in the storage of the communications illegally subjected to surveillance as described herein in connection with the 2002
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Case 2:15-cv-00584-RJS-DBP Document 26 Filed 02/10/16 Page 43 of 46
Salt Lake Winter Olympic Games and continue to store those communications, which may be accessed, reviewed, and utilized at any time in the future.
127. Plaintiffs have been and are aggrieved by Count XII Defendants’ above-described soliciting and obtaining of disclosure of the contents of communications and by the illegal continued storage of those communications, which may be accessed, reviewed, and utilized at any time in the future. By the acts alleged herein, Count XII Defendants’ conduct proximately caused harm, and continues to cause harm, to Plaintiffs, including the invasions and violations of Plaintiffs’ rights to privately communicate, and to privately receive communications, without interception, storage, and accessibility, or the threat of interception, storage, and accessibility, by the federal government and the invasions and violations of Plaintiffs’ rights to freely and privately associate with others without governmental monitoring, intimidation, and the continuing anxiety and immensely disturbing uncertainty about what information has been stored and how it will or might be used at any future time. In short, the Plaintiffs have suffered, and continue to suffer, the harm of their privacy and freedom to associate without governmental interference, spying, and the storage of and accessibility to private communications being unlawfully violated and threatened in the same sense as citizens suffering tremendous harm from the destruction of privacy and creation of intimidation, loss of confidence in government, and promotion of continuing fear by Big Brother in George Orwell’s 1984. The very real, fundamental harm has included the undermining of what it once meant to be a resident in a free country that observed the rule of law, provided for checks and balances between the branches of government, and honored the right of privacy of every individual. The diminution of that sense of freedom and individual liberty is a very real and life-changing and society-transforming injury-in-fact – a far greater and more
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fundamental injury than any financial injuries that are the subjects of lawsuits decided by our nation’s courts daily.
128. Pursuant to Larson v. United States, 337 U.S. 682 (1949) and to 5 U.S.C. § 702, Plaintiffs seek that this Court declare that Count XII Defendants have violated their rights; enjoin the Count XII Defendants, their agents, successors, and assigns, and all those in active concert and participation with them from violating the Plaintiffs’ statutory rights, including their rights under 50 U.S.C. §§ 1801 et seq.; and award such other and further equitable relief as is proper.
129. Injunctive relief as to the Count XII Defendants for violations of federal law and the United States Constitution is allowed under 5 U.S.C. §702. The Court should enjoin the Count XII Defendants, their agents, successors, and assigns, and all those in active concert and participation with them, from continuing to store the communications, or information about communications, of Plaintiffs, and from making such communications, or information about such communications, accessible in the future. This Court should further require Count XII Defendants to disclose what has been stored, subject to future access, and provide assurance that the abovedescribed communications, and information about communications, by Plaintiffs have been deleted and permanently removed from any records and data stored by Count XII Defendants, rendering them inaccessible for future access. The Court should award such other and further equitable relief as is proper.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that the Court: 1. Declare that the program of surveillance as described herein violates Plaintiffs’ rights under the First and Fourth Amendments to the United States Constitution and Article I, § 14
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of the Utah Constitution; and their statutory rights, including their rights under 18 U.S.C. § 2511, 18 U.S.C. § 2703, 50 US.C. § 1809, 5 U.S.C. § 552a, and the Administrative Procedures Act.
2. Award Plaintiffs equitable relief, including a preliminary and permanent injunction pursuant to the First and Fourth Amendments to the United States Constitution and Article I, § 14 of the Utah Constitution, prohibiting Defendants NSA, and agents, successors, and assigns of the NSA, and all those in active concert and participation with them, from continuing to store the communications, or information about communications, of Plaintiffs, and from making such communications, or information about such communications, accessible in the future. This Court should further require Defendant NSA to disclose what has been stored, subject to future access, and provide assurance that the above-described communications, and information about communications, by Plaintiffs have been deleted and permanently removed from any records and data stored by Defendant NSA, rendering them inaccessible for future access.
3. Award Plaintiffs their statutory, actual, and punitive damages to the extent permitted by law and according to proof.
4. Award to Plaintiffs their reasonable attorneys’ fees and other costs of suit to the extent permitted by law.
5. Grant such other and further relief as the Court deems just and proper.
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Case 2:15-cv-00584-RJS-DBP Document 26 Filed 02/10/16 Page 46 of 46 JURY DEMAND
Plaintiffs hereby demand a jury trial of all matters triable by jury. DATED this 10th day of February, 2016
WINDER & COUNSEL, P.C. /s/ Ross C. Anderson Ross C. Anderson, Of Counsel Attorney for Plaintiffs
46

 
 IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH – CENTRAL DIVISION

MARY JOSEPHINE (JOSIE) VALDEZ, et al.,
Plaintiffs, vs. NATIONAL SECURITY AGENCY, et al.,
Defendants.

MEMORANDUM DECISION AND ORDER
Case No. 2:15-CV-00584-RJS-DBP Judge Robert J. Shelby
Magistrate Judge Dustin B. Pead

Plaintiffs are six individuals who lived or worked in Salt Lake City during the 2002 Salt Lake Winter Olympic Games. They contend Defendant National Security Agency, acting at the direction of former President George W. Bush and former Vice President Dick Cheney, illegally engaged in a sweeping warrantless surveillance program during those Games.1 As part of that program, Plaintiffs allege the NSA unlawfully intercepted, gathered, and monitored all electronic communications in and around Salt Lake City and all Olympic venues. Because Plaintiffs utilized email, text message, and telephone communications in these areas during the surveillance program, they contend their communications and data were necessarily intercepted.2 Plaintiffs allege the NSA continues to store all of the electronic data it collected.
The NSA now moves3 to dismiss Plaintiffs’ Amended Complaint,4 arguing Plaintiffs have not pled facts sufficient to establish standing to proceed with their claims. More

1 In their Amended Complaint, Plaintiffs bring constitutional, common law, and statutory claims against the NSA and several individuals, including former President Bush and former Vice President Cheney. Dkt. 26. 2 Id. ¶¶ 17–22. 3 Dkt. 17, Motion to Dismiss. 4 Dkt. 26. When filed, Defendants’ Motion to Dismiss was drawn to Plaintiffs’ initial Complaint (Dkt. 1). Magistrate Judge Dustin Pead, to whom this case is referred pursuant to 28 U.S.C. § 636 (b)(1)(A) for the determination of nondispositive pretrial matters, permitted Plaintiffs to file an Amended Complaint, but stated in his order that the Motion to Dismiss would be “treated as a timely response to the Amended Complaint.” (Dkt. 27 at 2.)
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specifically, the NSA submits Plaintiffs have not alleged facts plausibly showing they have suffered an injury redressable through the relief sought in this lawsuit. While not stated in so many words, the NSA’s central argument is that the Plaintiffs’ allegations are fanciful and not worthy of belief.
The NSA’s Motion turns on a disagreement between the parties about the legal standard trial courts must employ when reviewing allegations in pleadings at the motion to dismiss stage. Motions to dismiss like the one here presented require trial courts to evaluate whether a party asserting a claim has adequately pled facts plausibly suggesting an entitlement to relief. Courts perform this analysis in two steps. First, courts must review the complaint and identify any allegations not entitled to the general presumption of truth—such as legal conclusions or bare assertions of the elements of a claim. Second, courts consider whether the remaining allegations, accepted as true at this stage, are sufficient to plausibly support the claims asserted.
The parties here disagree about what kinds of allegations in pleadings trial courts must assume to be true when undertaking the first step in this analysis. Plaintiffs argue the court may not pass on the plausibility of factual allegations, but must accept those allegations as true. The NSA argues the court cannot assume the truth of factual allegations that appear implausible. The NSA contends that the allegations in the Amended Complaint supporting Plaintiffs’ Article III standing are bare assertions, lack factual support, and are implausible. The NSA argues that, as such, the court may not accept them as true, and that without these allegations Plaintiffs’ Amended Complaint fails to sufficiently plead standing.
But it is generally not the role of trial courts at the motion to dismiss stage to pass on the plausibility of otherwise well-pled factual allegations in pleadings. Trial judges ordinarily may not independently perform some undefined truth-testing function—in reliance on unstated
2

assumptions, beliefs, and understandings unique to each judge—to determine what claims may proceed to discovery. While judges are trained to carefully assess the plausibility of legal claims in view of the facts alleged, they are not well-positioned to evaluate only on the basis of pleadings the likelihood that those facts can ultimately be proven true.
The instant case illustrates this point. The court is simply in no position to evaluate at this stage of the proceeding whether the NSA engaged in the massive warrantless surveillance program Plaintiffs allege, whether any such program was even technologically feasible at the time, or whether any of the named Defendants played a role in such a program. If the NSA engaged in the conduct alleged, it is presently unknown whether the Plaintiffs’ communications were intercepted or whether the NSA still possesses any of Plaintiffs’ data. But these are the allegations pled in Plaintiffs’ Amended Complaint. They can be tested in time, on the basis of a fully-developed record, after an opportunity for both sides to conduct discovery. At that point, any claims lacking evidentiary support can be put to rest.
Because the Amended Complaint includes adequate and sufficiently well-pled factual allegations to plausibly establish that Plaintiffs have suffered redressable injury, the court DENIES NSA’s Motion to Dismiss.5
BACKGROUND ON THE ALLEGATIONS IN THE AMENDED COMPLAINT Plaintiffs allege in their Amended Complaint6 that the NSA and other Defendants violated their constitutional and statutory rights by monitoring their communications and gathering data during the 2002 Winter Olympic Games, and by continuing to store the data. Plaintiffs seek both declaratory and injunctive relief for the alleged violations. First, Plaintiffs ask the court to declare that the NSA violated their rights under the Fourth
5 Dkt. 17. 6 Dkt. 26.
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Amendment7 and the Foreign Intelligence Surveillance Act (FISA).8 Second, under the First and
Fourth Amendments, the Stored Communication Act, the Privacy Act, the Administrative Procedure Act, and FISA,9 Plaintiffs ask the court to enjoin the NSA “from continuing to store
the communications of Plaintiffs and from making such communications accessible in the future.”10 Finally, Plaintiffs ask the court to “require Defendant NSA to disclose what has been
stored, subject to future access, and provide assurances that the above-described communications
by Plaintiffs have been deleted and permanently removed from any records and data stored by Defendant NSA, rendering them inaccessible for future access.”11
In response to the NSA’s Motion to Dismiss,12 Plaintiffs argue they have sufficiently pled
a redressable injury to support their claims for relief. First, Plaintiffs claim they adequately
allege they were injured because the NSA unlawfully collected their personal communications
during the 2002 Winter Olympics without a warrant. Plaintiffs do not allege that their specific
communications were targeted by the NSA, only that they were swept up in the NSA’s extremely
broad surveillance program. Second, Plaintiffs argue they sufficiently allege their injury is
redressable because the NSA continues to store their information.
The parties’ dispute centers on whether these allegations are entitled to a presumption of
truth at this stage of the case. Therefore, the court recites the relevant allegations directly from
the Amended Complaint.
Allegations in the Amended Complaint Relevant to Injury:
3. Pursuant to authority provided by Bush in October 2001 and later orders, the NSA and employees and agents of the NSA illegally monitored the
7 Id. ¶ 50. 8 Id. ¶ 128. 9 Id. ¶¶ 51, 65, 104, 112, 120, 129. 10 Id. ¶ 51. 11 Id. 12 Dkt. 17.
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international telephone calls and international e-mail messages of people inside the United States without warrants. Since October 2001, Bush had authorized and ordered the NSA, in a program known as “the President’s Surveillance Program,” (and sometimes simply as “the President’s Program”), pursuant to which information gathered during the course of illegal surveillance was maintained in a “security compartment” codenamed “STELLARWIND”, to engage in widespread, warrantless, unconstitutional, felonious surveillance of email, text, internet, and telephone communications in the United States.
4. Then-Vice-President Cheney and his legal counsel Addington were instrumental in authorizing and encouraging the illegal and unconstitutional surveillance, with Addington drafting a secret written authorization for NSA Director Hayden to keep in his safe.
5. Later, that surveillance evolved, in part, into blanket, indiscriminate, warrantless, unconstitutional and otherwise illegal surveillance of the contents of every email and text message, and the metadata of every telephone call (i.e., the times, length, and numbers involved in every telephone call), to and from every person engaging in those types of communications in Salt Lake City, Utah, and in the vicinity of every other Olympic venue, during the 2002 Salt Lake Winter Olympic Games.
. . .
9. As part of the President’s Surveillance Program, as it evolved to even broader criminality, the NSA . . . planned and implemented a mass warrantless surveillance program . . . in which blanket surveillance was attempted and achieved during a period preceding the commencement of the 2002 Salt Lake Olympic Games and throughout the period of the games, from at least February 8, 2002 (Opening Ceremony) through at least February 24 (Closing Ceremony), over everyone utilizing email, text message, and telephone communications within designated geographical areas, including Salt Lake City, Utah, and the areas including and in the vicinity of all Olympic venues.
10. That unprecedented surveillance, some of which was first disclosed in a brief description in The Wall Street Journal on August 20, 2013 (entitled “New Details Show Broader NSA Surveillance Reach,” by Siobhan Gorman and Jennifer Valentino-Devries), included the unconstitutional and otherwise illegal interception and key-word spotting analysis of the contents of every text message and email sent and received and information reflecting the time and length of, the telephone numbers involved in, every telephone conversation involving any person within the areas subjected to blanket surveillance.
. . .
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23. During the 2002 Salt Lake Winter Olympic Games, Plaintiffs utilized the services of one or more telecommunications service providers through which the NSA and Does 1-50, engaged in illegal and unconstitutional surveillance of information that included length, times, and telephone numbers involved in each telephonic communication. Plaintiffs also subscribed to telecommunication services that allowed the sending of emails and, on a regular basis, sent and received emails while they were in Salt Lake City and near other Olympic venues, all of which were subjected by the NSA and FBI, and some of Does 1-50, to . . . surveillance, interception, and key-word spotting analysis.
. . .
26. Defendant Hayden was Director of the NSA from 1999 to 2005. Hayden requested and urged that the NSA be permitted to engage in widespread warrantless surveillance of electronic communications, including text messages, emails, and telephone communications. Hayden sought and received written authorization to engage in the clearly illegal and unconstitutional surveillance and caused the NSA to engage in such surveillance, including the massive, indiscriminate, warrantless surveillance of the contents of text messages, emails, and telephone calls originating or received in Salt Lake City and in the vicinity of other Olympic venues during the 2002 Salt Lake Winter Olympic Games.13
Allegations in the Amended Complaint Relevant to Redressability:
12. Consistent with the practice and philosophy of the NSA to horde [sic] everything obtained through surveillance, whether legal or illegal, the communications illegally and unconstitutionally subjected to surveillance, interception, and key-word spotting analysis are presently unlawfully stored by the NSA, subject to unlawful access at any time in the future. That illegal storage is consistent with the unlawful storage of massive metadata of telephone calls illegally obtained by the NSA, as recounted recently in American Civil Liberties Union v. Clapper, 785 F.3d 787 (2d Cir. 2015) (“The records sought . . . are relevant, in the government’s view, because there might at some future point be a need or desire to search them in connection with a hypothetical future inquiry.”). . . .
44. Defendant NSA has participated or directly engaged in the storage of the communications illegally subject to surveillance as described herein in connection with the 2002 Salt Lake Winter Olympic Games and continues to store those communications, which may be accessed, reviewed, and utilized at any time in the future, and is thereby irreparably harming Plaintiffs.
. . .
13 Plaintiffs reiterate these claims at several points in their Amended Complaint. See Dkt. 26 ¶¶ 42, 46, 60, 96, 99, 109, 119, 123, 124, 125.
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48. By the acts alleged herein, Defendant NSA’s conduct proximately caused, and continues to cause, significant harm to Plaintiffs, including . . . continuing anxiety and immensely disturbing uncertainty about what information has been stored and how it will or might be used at any future time.14
ANALYSIS
The NSA moves under Rule 12(b)(1), Federal Rules of Civil Procedure, to dismiss
Plaintiffs’ Amended Complaint on the basis that Plaintiffs fail to allege facts sufficient to
establish Article III standing to pursue their claims. The NSA argues Plaintiffs have not
plausibly alleged that their communications were subject to NSA surveillance and—even
assuming Plaintiffs have alleged their communications were collected—they have failed to
plausibly allege the NSA still retains them.15 Below, the court first identifies the legal standards
that govern its analysis, then takes up the NSA’s arguments in turn.
I. Legal Standards
Article III of the Constitution limits the judicial power of the United States to the
resolution of “cases” or “controversies.”16 As the parties invoking the court’s jurisdiction,
Plaintiffs have the burden of establishing their standing.17 To establish standing under Article
III’s case or controversy requirement, Plaintiffs must “make three showings: first, that they have
14 Plaintiffs re-assert that the NSA continues to store this information in several paragraphs contained in their claims for relief. See, e.g., Dkt. 26 ¶¶ 60, 61, 63, 98, 99, 109, 110, 119, 126, 127. 15 As the parties acknowledge, the filing of the Amended Complaint significantly narrows the issues initially presented in the Motion to Dismiss. See Dkt. 28 at 5–6; Dkt. 32 at 1–3. The NSA and FBI jointly filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction. Dkt. 17. Before Plaintiffs responded they filed an Amended Complaint. Dkt. 26. Notwithstanding that the Motion to Dismiss was drawn to the original Complaint, the parties agreed to complete briefing on that Motion. Though procedurally unusual, Plaintiffs’ Opposition, dkt. 28, and the NSA’s Reply, dkt. 32, both address the Amended Complaint. In the Amended Complaint, the FBI is no longer named as a defendant. While the Amended Complaint contains claims against the FBI, see Dkt. 26 at 24, 33 (listing the FBI under Count V and VIII), Plaintiffs have stated that the FBI’s inclusion was inadvertent and that they are no longer pursuing these claims. Dkt. 28 at 14 n.5. Therefore, the court grants the Government’s motion as it pertains to the FBI and dismisses the FBI from this lawsuit. Plaintiffs also dropped the class action allegations, the monetary damages claims against the NSA, and the claims against the Government under the Wiretap Act. 16 See Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 471 (1982). 17 Dias v. City & Cty. of Denver, 567 F.3d 1169, 1176 (10th Cir. 2009).
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suffered an injury in fact which is concrete and particularized, and actual or imminent; second, that there is a causal connection between the injury and the challenged conduct; and third, that the injury is likely to be redressed by a favorable decision.”18
The Supreme Court has noted that its “standing inquiry has been especially rigorous when reaching the merits of the dispute would force [the Court] to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.”19 And the Court observed that it has “often found a lack of standing in cases in which the Judiciary has been requested to review actions of the political branches in the fields of intelligence gathering and foreign affairs.”20
At the motion to dismiss stage, Plaintiffs must establish their standing and the court’s jurisdiction under the pleading standards found in Rule 8(a)(1), Federal Rules of Civil Procedure.21 Rule 8(a)(1) requires only that a complaint contain “a short and plain statement of the grounds for the court’s jurisdiction.” The Tenth Circuit instructs that “at the outset of a case it is enough to allege the facts . . . establishing standing” and that “[g]eneral allegations suffice at the pleading stage.”22 If the allegations supporting standing are challenged, “then the facts have to be litigated.”23
The NSA’s Rule 12(b)(1) Motion to Dismiss is a facial challenge focused exclusively on the sufficiency of the allegations in Plaintiffs’ Amended Complaint, without reference to
18 Id. 19 Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013) (internal quotation marks omitted). 20 Id. 21 See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (“[E]ach element [of standing] must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of litigation.”). 22 Predator Int’l, Inc. v. Gamo Outdoor USA, Inc., 793 F.3d 1177, 1184 (10th Cir. 2015). 23 Id.
8

declarations, affidavits, or other evidence. 24 To survive such a motion, the Amended Complaint
“must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible
on its face.”25 The Supreme Court in Ashcroft v. Iqbal26 articulated a two-step analysis courts
must apply when evaluating a motion to dismiss challenging the adequacy of a complaint.27
First, the court must “identify[] the allegations in the complaint that are not entitled to the
assumption of truth.”28 And second, the court considers whether the remaining allegations,
which the court assumes are true, “plausibly suggest an entitlement to relief.”29
The NSA’s argument focuses on the first Iqbal step, and requires the court to determine
what kinds of allegations in pleadings are not entitled to an assumption of truth at the motion to
dismiss stage. The court here turns to the Supreme Court for guidance.
The Supreme Court instructs that trial courts generally “must accept as true all the
allegations contained in a complaint . . . .”30 To benefit from the general assumption of truth, the
allegations must be well-pleaded31 and amount to more than legal conclusions32 or “bare
assertions”33 that are “‘a formulaic recitation of the elements’ of a . . . claim.”34 When “well-
24 Rule 12(b)(1) motions to dismiss may take two forms, facial and factual. United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1203 (10th Cir. 2001) (citing Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995)). In a facial challenge, the movant questions the sufficiency of the complaint itself, while in a factual challenge the movant “may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends.” Id. (internal quotation marks omitted). If the challenge is facial, the court generally accepts the allegations in the complaint as true. In contrast, when addressing a factual challenge the court “does not presume the truthfulness of the complaint’s factual allegations, but has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).” Id. (internal quotation marks omitted). 25 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). 26 556 U.S. 662 (2009). 27 Although the Court in Iqbal was analyzing a defendant’s 12(b)(6) motion, the Tenth Circuit has held that the same standards apply to a 12(b)(1) motion. See, e.g., Muscogee (Creek) Nation v. Okla. Tax Comm’n, 611 F.3d 1222, 1227 n.1 (10th Cir. 2010) (“[W]e apply the same standards [to a facial challenge] under 12(b)(1) that are applicable to a Rule 12(b)(6) motion to dismiss for failure to state a cause of action.”). 28 Iqbal, 556 U.S. at 680. 29 Id. 30 Id. at 678. 31 Id. at 679. 32 Id. at 678. 33 Id. at 681.
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pleaded factual allegations” are within these bounds, this court is told to “assume their veracity”
and proceed to the next step of the Iqbal two-step analysis—“determin[ing] whether they plausibly give rise to an entitlement to relief.”35 This is so even if it “strikes a savvy judge that actual proof of those facts is improbable”36 or the allegations are “doubtful in fact.”37 Indeed, the
Court has emphasized in finding untenable “bald” allegations that it was “not reject[ing] these . . . allegations on the ground that they are unrealistic or nonsensical.”38 It was their “conclusory
nature . . . rather than their extravagantly fanciful nature[] that disentitle[d] them to the presumption of truth.”39 Still, in a dissenting opinion in Iqbal, Justice Souter suggested the
compellingly logical point that courts need not accept as true “allegations that are sufficiently
fantastic to defy reality as we know it: claims about little green men, or the plaintiff’s recent trip to Pluto, or experiences in time travel.”40
The court extracts a widely accepted governing principle from these binding Supreme
Court pronouncements and Justice Souter’s persuasive, non-contradictory point. At the pre-
discovery motion to dismiss stage, this court must assume the truth of well-pleaded factual
allegations that are not simply legal conclusions or bare assertions of the elements of a claim—so
long as the allegations do not “defy reality as we know it”—even if, in the court’s own judgment,
those facts seem at the outset incredible, unbelievable, or highly unlikely to be true.
The NSA argues the case law compels a different approach. It maintains that trial courts
are instead required under Iqbal to test plausibility twice when evaluating a motion to dismiss.
34 Id. (quoting Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555 (2007)). 35 Id. at 679. 36 Twombly, 550 U.S. at 556. 37 Id. at 555 (noting that “[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” (citations omitted)). 38 Iqbal, 556 U.S. at 681. 39 Id. 40 Id. at 696 (Souter, J., dissenting). While Justice Souter makes this statement in the dissent, he also states that he does “not understand the majority to disagree with this understanding of ‘plausibility’ under Twombly.” Id. at 697.
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As part of the first Iqbal step, the NSA submits trial judges must evaluate the plausibility of the
facts alleged, and disregard those facts the court finds implausible. Then, after excluding those
factual allegations, the court must separately evaluate the plausibility of the legal claims asserted
in view of the surviving allegations. The NSA cites as support for this approach three decisions
from the Tenth Circuit.41 This court reads these cases differently.
While there is some language in these cases from which one could infer that the Tenth
Circuit is assessing the plausibility of the facts alleged,42 the standards the court sets forth43 and
the analysis it employs44 are consistent with this court’s interpretation articulated above.
Importantly, when discussing the plausibility standard recently announced in Bell Atlantic
Corporation v. Twombly45—before that standard was applied and developed in Iqbal—the Tenth
Circuit clarified that “[t]his is not to say that the factual allegations must themselves be plausible;
41 Al-Owhali v. Holder, 687 F.3d 1236 (10th Cir. 2012); Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210 (10th Cir. 2011); Cohon v. N.M. Dep’t of Health, 646 F.3d 717 (10th Cir. 2011). 42 See Al-Owhali, 687 F.3d at 1241 (“[H]e simply needed to plead some plausible facts supporting his claim . . . .”); Id. at 1242 (“[W]e dismissed the claim because the inmate failed to offer plausible ‘allegations showing that the restrictions were imposed in violation of prison regulations or that the regulations invoked were unconstitutional in the circumstances.’”). 43 Al-Owhali, 687 F.3d at 1239–40 (“Under Iqbal, ‘a complaint must contain enough allegations of fact, taken as true, to state a claim to relief that is plausible on its face.’ ‘A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ Although we must accept as true all factual allegations asserted in the complaint, dismissal is appropriate where ‘the well-pleaded facts do not permit the court to infer more than a mere possibility of misconduct.’” (citations omitted)); Kan. Penn Gaming, 656 F.3d at 1214 (“[I]n ruling on a motion to dismiss, a court should disregard all conclusory statements of law and consider whether the remaining specific factual allegations, if assumed to be true, plausibly suggest the defendant is liable.”); Cohon, 646 F.3d at 724 (“We accept as true all wellpleaded facts and ‘construe all reasonable allegations in the light most favorable to the plaintiff.’ . . . Dismissal of a complaint is appropriate only if, accepting all facts alleged as true, Cohon has not pled ‘enough facts to state a claim to relief that is plausible on its face.’ The complaint must set forth ‘more than an unadorned, the-defendantunlawfully-harmed-me accusation.’ Our function ‘is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally sufficient to state a claim for which relief may be granted.’” (citations omitted)). 44 Al-Owhali, 687 F.3d at 1243 (accepting that plaintiff’s allegation that he had been restricted from receiving a book in prison as true but concluding that this was not enough to plausibly state a claim for relief under the First and Fifth Amendments); Kan. Penn Gaming, 656 F.3d at 1220 (concluding that an allegation in a complaint alleging nuisance was a “merely a ‘formulaic recitation’ of a legal conclusion” and, thus, not accepting it as true); Cohon, 646 F.3d at 727 (concluding that an allegation that a budget allotment was “money-based rather than need-based” was conclusory when considering plaintiff’s claim that a Medicaid program offered by the state violated Title II of the ADA, Section 504 of the Rehabilitation Act, as well as plaintiff’s substantive and procedural due process rights under the U.S. and New Mexico Constitutions). 45 550 U.S. 544.
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after all, they are assumed to be true. It is just to say that relief must follow from the facts alleged.”46
Having explained the standards it will apply, the court turns now to the NSA’s challenge. Because the NSA’s Motion to Dismiss attacks the sufficiency of Plaintiffs’ allegations supporting Article III standing, the court’s analysis below focuses on injury and redressability. First, the court analyzes whether the allegations in the Amended Complaint that establish injury are entitled to the assumption of truth. Next, the court analyzes whether the allegations in the Amended Complaint that establish redressability are entitled to the presumption of truth. II. Plaintiffs’ Allegations of Injury are Entitled to the Assumption of Truth
To establish standing, Plaintiffs must show “they have suffered an injury in fact which is concrete and particularized, and actual or imminent.”47 Plaintiffs argue they were injured because the NSA illegally conducted warrantless surveillance of their communications. Plaintiffs’ assertion that the NSA collected their communications turns on their allegation that the NSA conducted blanket surveillance of every email, text message, and the metadata from every telephone call from every person in Salt Lake City and the surrounding Olympic venues during the 2002 Winter Olympic Games.
The NSA does not argue that warrantless surveillance of Plaintiffs’ communications is an insufficient basis to establish injury for standing purposes. Rather, the NSA contends Plaintiffs’ allegation that “the Government intercepted their communications during the 2002 Winter Olympics” is “based on a bare assertion,” and “the Complaint contains no factual enhancement to support” this assertion. For this reason, the NSA argues, “under the plausibility standard of
46 Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008). 47 Dias, 567 F.3d at 1176.
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pleading, [these allegations are] not entitled to a presumption of truth.”48 The court disagrees.
As discussed above, the first step of the Iqbal analysis requires the court to decide which
allegations in the Amended Complaint are entitled to the generally-applicable assumption of
truth. At this step, it is irrelevant whether the allegations strike the court as simply unbelievable
or unlikely to be supported. Instead, the court must consider whether the allegations are bare
assertions of the elements of a claim, or in this instance, a bare assertion of injury in fact. The
NSA seizes on the “bare assertion” and “conclusory” language from Iqbal to argue Plaintiffs
must provide factual support for their allegations before they may be assumed true. But the
NSA’s use of these terms divorces them from the context in which they were used by the
Supreme Court. The Iqbal Court used these terms not when discussing support for factual
allegations, but rather when specifically addressing bare recitation of the elements of a claim or conclusory statements of the same.49
In their Amended Complaint, Plaintiffs describe the “President’s Surveillance Program”
and the illegal surveillance that occurred as part of this program:
Later, that surveillance evolved, in part, into blanket, indiscriminate, warrantless, unconstitutional and otherwise illegal surveillance of the contents of every email and text message, and the metadata of every telephone call (i.e., the times, lengths, and numbers involved in every telephone call), to and from every person engaging in those types of communications in Salt Lake City, Utah, and in the vicinity of every other Olympic venue, during the 2002 Salt Lake Winter Olympic Games.50
Plaintiffs allege this surveillance “was attempted and achieved during a period preceding the
commencement of the 2002 Salt Lake Olympic Games and throughout the period of the games
48 Dkt. 17 at 2. 49 Iqbal, 556 U.S. at 663 (“[T]he tenet that a court must accept a complaint’s allegations as true is inapplicable to threadbare recitals of a cause of action’s elements, supported by mere conclusory statements.”); Id. at 681 (“These bare assertions, much like the pleading of conspiracy in Twombly, amount to nothing more than a ‘formulaic recitation of the elements’ of a constitutional discrimination claim . . . .”). 50 Dkt. 26 ¶ 5.
13

from at least February 8, 2002 (Opening Ceremony) through at least February 24th (Closing Ceremony).”51
Because these allegations are not legal conclusions and are more than a bare recitation of the requirements of standing, the court must assume the truth of these allegations at the motion to dismiss stage. Plaintiffs allege when and where the surveillance occurred, and the type of communications that were subject to surveillance. Plaintiffs also unequivocally state that every communication was intercepted—including their own.
The Supreme Court’s analysis in Iqbal supports the conclusion that these allegations are entitled to the presumption of truth. The allegations the Supreme Court concluded were not entitled to the presumption of truth in Iqbal were more conclusory and more closely tied to the legal elements of plaintiff’s claims than those before the court here.
In Iqbal, the Court considered allegations in the plaintiff’s complaint claiming certain federal official defendants deprived him of clearly-established constitutional rights when they arrested and detained him following the September 11, 2001 terrorist attacks. The Court first considered plaintiff’s allegations supporting a claim for unconstitutional discrimination. In so doing, the Court laid out the elements of plaintiff’s discrimination claim, which required him to show that defendants intended to discriminate against him based solely on account of his race, religion, or national origin; and that the harsh prison conditions that he was subject to served no legitimate penological interest. In his complaint, plaintiff alleged that defendants “‘knew of, condoned, and willfully and maliciously agreed to subject [him]’ to harsh conditions of confinement ‘as a matter of policy, solely on account of [his] religion, race and/or national origin and for no legitimate penological interest.’”52 The Court concluded these allegations were “bare
51 Id. ¶ 9. 52 Iqbal, 556 U.S. at 681 (citation omitted).
14

assertions” that “amount[ed] to nothing more than a ‘formulaic recitation of the elements’” of plaintiff’s constitutional claims.53 The Court, therefore, did not assume these allegations to be true.
But there were also allegations the Court concluded were entitled to the presumption of truth. For instance, the complaint included an allegation that “[t]he policy of holding postSeptember 11th detainees in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI was approved by [defendants] in discussions in the weeks after September 11, 2001.”54 The Court accepted this allegation as true and went on to conclude that it did not plausibly establish plaintiff’s claim for relief.55
Here, the court considers allegations more like the latter allegation in Iqbal than the former. While Plaintiffs’ allegations are extraordinary, they are neither legal conclusions nor bare recitations of the elements of standing. And the court cannot conclude that on their face they defy reality.
The NSA also argues the Supreme Court’s decision in Clapper v. Amnesty International56 should guide the court’s analysis. In that case, plaintiffs—attorneys and human rights, labor, legal, and media organizations—challenged the constitutionality of § 702 of the Foreign Intelligence Surveillance Act (50 U.S.C. § 1881a).57 They sought declaratory and injunctive relief. The government filed a motion for summary judgment challenging plaintiffs’ standing. Plaintiffs responded that they could “establish injury in fact because there [was] an objectively reasonable likelihood that their communications [would] be acquired under § 1881a at some
53 Id. 54 Id. (internal quotation marks omitted). 55 Id. 56 133 S. Ct. 1138 (2013). 57 Id. at 1145.
15

point in the future.”58 The Court rejected this argument, concluding plaintiffs had failed to show
their threatened future injury was “certainly impending,” as required for Article III standing.
The Court found plaintiffs’ “highly speculative fear” that the government had monitored their communications rested on a “highly attenuated chain of possibilities.”59
Amnesty International does not control the court’s analysis in this case for at least two
reasons. First, the Supreme Court in Amnesty International was not engaged in the same
analysis this court now undertakes. In Amnesty International, the Court considered whether
plaintiffs had set forth specific facts supporting their claim of standing sufficient to survive summary judgment.60 The Court was not engaged in an Iqbal step-one analysis at the motion to
dismiss stage, asking whether the allegations in plaintiffs’ complaint should be assumed to be
true. Indeed, it appears the Supreme Court accepted all of plaintiffs’ allegations as true but
found those allegations, accepted as true, still did not establish plaintiffs’ standing to seek
prospective relief.
Second, the allegations plaintiffs were making in Amnesty International are qualitatively
different than those in this case. In Amnesty International, plaintiffs claimed there was an
“objectively reasonable likelihood” that their future communications would be intercepted under
§ 1881a. Here, Plaintiffs do not speculate about future harm, but affirmatively state that their
communications were, in fact, unlawfully intercepted.
58 Id. at 1143. 59 Id. at 1148 (“[R]espondents’ argument rests on their highly speculative fear that: (1) the Government will decide to target the communications of non-U.S. persons with whom they communicate; (2) in doing so, the Government will choose to invoke its authority under § 1881a rather than utilizing another method of surveillance; (3) the Article III judges who serve on the Foreign Intelligence Surveillance Court will conclude that the Government’s proposed surveillance procedures satisfy § 1881a’s many safeguards and are consistent with the Fourth Amendment; (4) the Government will succeed in intercepting the communications of respondents’ contacts; and (5) respondents will be parties to the particular communications that the Government intercepts.”). 60 The Court noted that plaintiffs, at the summary judgment stage, “can no longer rest on . . . ‘mere allegations,’ but must ‘set forth’ by affidavit or other evidence ‘specific facts.’” Id. at 1149 (quoting Lujan, 504 U.S. at 561). And the Court found that plaintiffs had “set forth no specific facts demonstrating that the communications of their foreign contacts will be targeted.” Id.
16

While the NSA characterizes Plaintiffs’ allegations as more speculative than those in
Amnesty International, Plaintiffs’ allegations are in fact much less speculative—Plaintiffs do not
allege it is likely that communications will later be intercepted, but rather that they already were
intercepted. What the NSA likely means is not that the Plaintiffs’ allegations here are more
speculative, but that they are less believable or less credible—in essence, less plausible. As
discussed above, this is not an argument that the court may entertain at the motion to dismiss
stage.61 The court, therefore, accepts Plaintiffs’ allegations as true.
While the NSA has not argued that Plaintiffs’ allegations, if accepted as true, fail to show
an injury in fact, this court is “required to consider ‘the issue sua sponte to ensure that there is an
Article III case or controversy.’”62 At the motion to dismiss stage, the court concludes that
because Plaintiffs’ allegation that their communications were intercepted must be accepted as
true, Plaintiffs have plausibly alleged an injury that is concrete, particularized, and actual.63
61 See Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (“This is not to say that the factual allegations must themselves be plausible; after all, they are assumed to be true. It is just to say that relief must follow from the facts alleged.”). 62 Rector v. City & Cty. of Denver, 348 F.3d 935, 942 (10th Cir. 2003) (quoting People for the Ethical Treatment of Animals v. Rasmussen, 298 F.3d 1198, 1202 (10th Cir. 2002)). 63 Regarding Plaintiffs’ statutory claims, “the Supreme Court instructs that a concrete ‘injury required by Art. III may exist solely by virtue of statues creating legal rights, the invasion of which creates standing.’” Jewel v. Nat’l Sec. Agency, 673 F.3d 902, 908 (9th Cir. 2011) (quoting Lujan v. Defenders of Wildlife 504 U.S. 555, 578 (1992)). Plaintiffs assert statutory claims under FISA, the Stored Communication Act, the Privacy Act, and the Administrative Procedure Act. Each of these statutes creates a private right of action for claims of illegal surveillance. See 50 U.S.C. § 1810 (the FISA provides that “[a]n aggrieved person . . . who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation”); 18 U.S.C. § 2707 (the SCA allows any “person aggrieved by any violation of this chapter in which the conduct constituting the violation is engaged in with a knowing or intentional state of mind” to bring a civil action against the entity which engaged in the action); 5 U.S.C. § 552a(g)(1) (the Privacy Act provides that “whenever an agency . . . fails to comply with any other provision of this section, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual, the individual may bring a civil action against the agency, and the district courts of the United States shall have jurisdiction”); and 5 U.S.C. § 702 (the APA states that, “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof”). In addition, Plaintiffs allege an invasion of their First Amendment right of association and their Fourth Amendment right to be free from unreasonable searches and seizures. Because Plaintiffs claim that their particular communications were intercepted, Plaintiffs’ alleged injury is sufficiently concrete and particularized to grant standing. See Jewel, 673 F.3d at 909–10.
17

III. Plaintiffs’ Allegations Supporting Redressability are Entitled to the Assumption of Truth
Having concluded Plaintiffs pled sufficient facts to establish an actual injury, the court
now considers whether they have pled enough to support their claim of redressability. Like
injury in fact, redressability is one of the requirements of Article III standing. Here, Plaintiffs
request injunctive and declaratory relief. To have standing to pursue prospective injunctive
relief, “a plaintiff must show a continuing injury.”64 “Past exposure to illegal conduct does not
in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by
any continuing, present adverse effects.”65 It is not enough, therefore, for Plaintiffs to allege
their communications were collected in 2002 in violation of their constitutional and statutory
rights. To seek the injunctive relief they request, Plaintiffs must also sufficiently plead
allegations which, if assumed to be true, plausibly show they suffer a continuing injury.
The NSA argues that Plaintiffs have not met this burden because they have “failed to
plausibly allege that the NSA continues to retain [their communications], fourteen years later, for
undefined purposes of future access.”66 In their Amended Complaint, Plaintiffs allege:
12. Consistent with the practice and philosophy of the NSA to horde [sic] everything obtained through surveillance, whether legal or illegal, the communications illegally and unconstitutionally subjected to surveillance, interception, and key-word spotting analysis are presently unlawfully stored by the NSA, subject to unlawful access at any time in the future. That illegal storage is consistent with the unlawful storage of massive metadata of telephone calls illegally obtained by the NSA, as recounted recently in American Civil Liberties Union v. Clapper, 785 F.3d 787 (2d Cir. 2015) (“The records sought . . . are relevant, in the government’s view, because there might at some future point be a need or desire to search them in connection with a hypothetical future inquiry.”).
. . .
44. Defendant NSA has participated or directly engaged in the storage of the
64 Dias, 567 F.3d. at 1176. 65 Id. (quoting O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974)). 66 Dkt. 32 at 7.
18

communications illegally subjected to surveillance as described herein in connection with the 2002 Salt Lake Winter Olympic Games and continues to store those communications, which may be accessed, reviewed, and utilized at any time in the future, and is thereby irreparably harming Plaintiffs.67 Like Plaintiffs’ allegation that the NSA collected every communication of every person in Salt Lake and the surrounding Olympic venues, Plaintiffs’ allegation that the NSA has stored a massive quantity of data, much of which is likely irrelevant, may strike some as incredible. But, as discussed above, just because one may find Plaintiffs’ assertions unbelievable does not mean that the court does not assume them to be true when deciding a motion to dismiss. The court only sets aside allegations that are legal conclusions, bare assertions of the legal elements of a claim, or sufficiently fantastic to defy reality as we know it. Here, as with the allegation of data collection, Plaintiffs have not merely recited the elements of standing but have affirmatively stated that the NSA is presently storing their communications. The court, therefore, accepts this allegation as true and concludes that, at the motion to dismiss stage, Plaintiffs have pled enough to show a continuing injury. As with the injury in fact element, the NSA has not argued that Plaintiffs’ allegations, if accepted as true, fail to show redressability. At this stage, the court concludes that because Plaintiffs’ allegation that the NSA continues to store their communications must be accepted as true, Plaintiffs have plausibly alleged a continuing injury capable of redress.68
67 Dkt. 26 ¶¶ 12, 44. 68 See ACLU v. Clapper, 785 F.3d 787, 801 (2d Cir. 2015) (“[The government] argues instead that any alleged injuries here depend on the government’s reviewing the information collected, and that appellants have not shown anything more than a 'speculative prospect that their telephone numbers would ever be used'… But the government’s argument misapprehends what is required to establish standing in a case such as this one. Appellants challenge the telephone metadata program as a whole, alleging injury from the very collection of their telephone metadata…. Whether or not such claims prevail on the merits, appellants surely have standing to allege injury from the collection, and maintenance in a government database, of records relating to them.”).
19

CONCLUSION The NSA essentially asks the court to pass on the plausibility of the allegations in the Amended Complaint and reject them as too unlikely to be believed. But at this motion to dismiss stage, the court may not perform such an analysis. Because the allegations in the Plaintiffs’ Amended Complaint are not legal conclusions, bare assertions of the elements of standing, or sufficiently fantastic on their face as to defy reality, the law requires the court to accept them as true when evaluating the NSA’s Motion to Dismiss. Though these allegations will undoubtedly be tested as this case proceeds, the court concludes at this early stage that the Plaintiffs have in their Amended Complaint plausibly alleged injury and redressability as required for Article III standing, and they overcome the NSA’s challenge to jurisdiction. The NSA’s Motion to Dismiss is DENIED as to the non-monetary claims against the NSA.69 SO ORDERED this 10th day of January, 2017.
BY THE COURT: ________________________________________ ROBERT J. SHELBY United States District Judge
69 To the extent Plaintiffs’ Amended Complaint contains claims against the FBI and monetary claims against the NSA, the NSA’s Motion to Dismiss pertaining to those claims is GRANTED.
20

 
 Case 2:15-cv-00584-RJS Document 64 Filed 09/27/18 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION

MARY JOSEPHINE (JOSIE) VALDEZ, HOWARD STEPHENSON, DEEDA SEED, DANIEL DARGER, WILLIAM GRANT BAGLEY, and THOMAS NELSON HUCKIN,
Plaintiffs,
v.
NATIONAL SECURITY AGENCY; GEORGE W. BUSH, in his individual capacity; MICHAEL V. HAYDEN, in his individual capacity; RICHARD B. CHENEY, in his individual capacity; DAVID ADDINGTON, in his individual capacity; and DOES #1-50, inclusive,
Defendants.

ORDER DISMISSING CASE
Case No.: 2:15-cv-00584-RJS-DBP
Judge Robert J. Shelby Magistrate Judge Dustin B. Pead

Before the court is Plaintiffs’ Motion to Dismiss Without Prejudice.1 Upon consideration of the Plaintiffs’ Motion, and for good cause appearing, the court ORDERS that this matter be dismissed without prejudice, the parties to bear their own costs and attorneys’ fees. The clerk of court is directed to close the case.
DATED this 27th day of September, 2018. BY THE COURT:

ROBERT J. SHELBY United States District Judge

1 Dkt. 63.

 
 Case 2:15-cv-00584-RJS Document 57 Filed 05/01/18 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION

MARY JOSEPHINE (JOSIE) VALDEZ, HOWARD STEPHENSON, DEEDA SEED, DANIEL DARGER, WILLIAM GRANT BAGLEY, and THOMAS NELSON HUCKIN,
Plaintiffs,
v.
NATIONAL SECURITY AGENCY; GEORGE W. BUSH, in his individual capacity; MICHAEL V. HAYDEN, in his individual capacity; RICHARD B. CHENEY, in his individual capacity; DAVID ADDINGTON, in his individual capacity; and DOES #1-50, inclusive,
Defendants.

ORDER
Case No.: 2:15-cv-00584-RJS-DBP
Judge Robert J. Shelby Magistrate Judge Dustin B. Pead

This case involves allegations of sweeping unlawful government surveillance during the 2002 Salt Lake Winter Olympic Games. Plaintiffs filed their Complaint in August 2015. The nature of the allegations and the identities of the defendants have caused the case to proceed in stages. In March 2017, Defendant National Security Agency filed a Motion for Judgment on the Pleadings.1 Ten days later, the individual Defendants filed a Motion to Dismiss and Motion for Summary Judgment.2 Because the parties have been and remain engaged in jurisdictional discovery, responses to those motions have not yet been filed over a year later. As recently as last

1 Dkt. 43. 2 Dkt. 44.

Case 2:15-cv-00584-RJS Document 57 Filed 05/01/18 Page 2 of 2
week Judge Pead granted a stipulated motion extending deadlines for the discovery process the parties are utilizing.3
Given the length of time that has passed since the pending Motions were filed, and the present state of the ongoing discovery, the court DENIES the pending Motions4 without prejudice to refile the Motions, as written or amended, no later than 30 days after completion of jurisdictional discovery. In the meantime, the individual Defendants need not answer or otherwise respond to the Amended Complaint.5 Save for contemplating the refiling of the Motions, this Order does not otherwise affect Judge Pead's recent scheduling order.6 This Order preserves all issues and defenses raised by the filing of the Motions in the first instance.
SO ORDERED this 1st day of May, 2018.
BY THE COURT:
ROBERT J. SHELBY United States District Judge
3 Dkt. 56. 4 Dkt. 43; Dkt. 44. 5 Dkt. 26. 6 Dkt. 56.
2

 
 US District Court Electronic Case Filing System District of Utah (Central)
CIVIL DOCKET FOR CASE #: 2:15−cv−00584−RJS

CLOSED

Valdez et al v. National Security Agency et al Assigned to: Judge Robert J. Shelby Cause: 05:0702 Administrative Procedure Act
Plaintiff Mary Josephine Valdez on behalf of herself and all others similarly situated
Plaintiff Howard Stephenson on behalf of himself and all others similarly situated
Plaintiff Deeda Seed on behalf of herself and all others similarly situated
Plaintiff Daniel Darger on behalf of himself and all others similarly situated
Plaintiff William Grant Bagley on behalf of himself and all others similarly situated
Plaintiff Thomas Nelson Huckin on behalf of himself and all others similarly situated

Date Filed: 08/18/2015 Date Terminated: 09/27/2018 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant
represented by Ross C. Anderson LAW OFFICES OF ROCKY ANDERSON 8 E BROADWAY STE 450 SALT LAKE CITY, UT 84111 (801)349−1690 Email: rocky@andersonlawoffices.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ross C. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ross C. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ross C. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ross C. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ross C. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant National Security Agency

represented by Caroline J. Anderson US DEPARTMENT OF JUSTICE 20 MASSACHUSETTS AVE NW RM 7220

Defendant Federal Bureau of Investigation

WASHINGTON, DC 20530 (202)305−8645 Email: caroline.j.anderson@usdoj.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
James J. Gilligan US DEPARTMENT OF JUSTICE CIVIL DIVISION−FEDERAL PROGRAMS BRANCH 1100 L ST NW RM 11200 WASHINGTON, DC 20005 (202)514−3358 Email: james.gilligan@usdoj.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jared C. Bennett US DISTRICT COURT − UTAH 351 SOUTH WEST TEMPLE SALT LAKE CITY, UT 84101 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julia Alexandra Heiman US DEPARTMENT OF JUSTICE FEDERAL PROGRAMS BRANCH CIVIL DIV 20 MASSACHUSETTS AVE NW WASHINGTON, DC 20001 (202)616−8480 Email: julia.heiman@usdoj.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rodney Patton US DEPARTMENT OF JUSTICE FEDERAL PROGRAMS BRANCH CIVIL DIVISION 20 MASSACHUSETTS AVE NW RM 7320 WASHINGTON, DC 20044 (202)305−7919 Email: rodney.patton@usdoj.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Olivia Hussey Scott US DEPT OF JUSTICE CIVIL DIVISION 1100 L ST NW RM 11112 WASHINGTON, DC 20005 (202)616−8491 Email: olivia.hussey.scott@usdoj.gov PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Caroline J. Anderson (See above for address)

Defendant George W. Bush in his personal capacity
Defendant Michael V. Hayden in his personal capacity
Defendant Richard B. Cheney in his personal capacity

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
James J. Gilligan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jared C. Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julia Alexandra Heiman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rodney Patton (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Olivia Hussey Scott (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by James R. Whitman US DEPARTMENT OF JUSTICE PO BOX 7146 WASHINGTON, DC 20044 (202)616−4169 Email: james.whitman@usdoj.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jared C. Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James R. Whitman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jared C. Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James R. Whitman (See above for address)

Defendant David Addington

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jared C. Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James R. Whitman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jared C. Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/18/2015
08/21/2015 08/24/2015 09/28/2015
09/28/2015
09/28/2015
09/28/2015

# Docket Text
1 COMPLAINT against David Addington, George W. Bush, Richard B. Cheney, Federal Bureau of Investigation, Michael V. Hayden, National Security Agency (Filing fee $ 400, receipt number 4681068434) (Electronic document provided on disc.), filed by Thomas Nelson Huckin, Howard Stephenson, Daniel Darger, William Grant Bagley, Mary Josephine Valdez, Deeda Seed. (Attachments: # 1 Civil Cover Sheet ) Assigned to Judge Robert J. Shelby (eat) (Entered: 08/18/2015)
2 DOCKET TEXT ORDER The court orders the parties to follow the Short Form Discovery Motion procedure as outlined in the attached document in this case for all discovery disputes arising after this date. Signed by Judge Robert J. Shelby on 8/21/2015. (mjm) (Entered: 08/21/2015)
3 ORDER REFERRING CASE to Magistrate Judge Dustin B. Pead under 28:636 (b)(1)(A), Magistrate to hear and determine all nondispositive pretrial matters. No attached document. Signed by Judge Robert J. Shelby on 8/24/2015. (jds) (Entered: 08/24/2015)
4 **RESTRICTED DOCUMENT**Summons Issued Electronically as to David Addington. Instructions to Counsel: 1. Click on the document number. 2. If you are prompted for an ECF login, enter your 'Attorney' login to CM/ECF. 3. Print the issued summons for service. (eat) (Entered: 09/28/2015)
5 **RESTRICTED DOCUMENT**Summons Issued Electronically as to George W. Bush. Instructions to Counsel: 1. Click on the document number. 2. If you are prompted for an ECF login, enter your 'Attorney' login to CM/ECF. 3. Print the issued summons for service. (eat) (Entered: 09/28/2015)
6 **RESTRICTED DOCUMENT**Summons Issued Electronically as to Richard B. Cheney. Instructions to Counsel: 1. Click on the document number. 2. If you are prompted for an ECF login, enter your 'Attorney' login to CM/ECF. 3. Print the issued summons for service. (eat) (Entered: 09/28/2015)
7 **RESTRICTED DOCUMENT**Summons Issued Electronically as to Michael V. Hayden. Instructions to Counsel: 1. Click on the document number.

09/28/2015
09/28/2015
11/18/2015
11/18/2015 11/25/2015 11/25/2015 11/25/2015 11/25/2015 11/30/2015
12/18/2015 12/28/2015
12/29/2015

2. If you are prompted for an ECF login, enter your 'Attorney' login to CM/ECF. 3. Print the issued summons for service. (eat) (Entered: 09/28/2015)
8 **RESTRICTED DOCUMENT**Summons Issued Electronically as to Federal Bureau of Investigation. Instructions to Counsel: 1. Click on the document number. 2. If you are prompted for an ECF login, enter your 'Attorney' login to CM/ECF. 3. Print the issued summons for service. (eat) (Entered: 09/28/2015)
9 **RESTRICTED DOCUMENT**Summons Issued Electronically as to National Security Agency. Instructions to Counsel: 1. Click on the document number. 2. If you are prompted for an ECF login, enter your 'Attorney' login to CM/ECF. 3. Print the issued summons for service. (eat) (Entered: 09/28/2015)
10 MOTION for Extension of Time to File Answer re 1 Complaint, and Memorandum in Support filed by Defendants Federal Bureau of Investigation, National Security Agency. (Attachments: # 1 Text of Proposed Order) Motions referred to Dustin B. Pead. Attorney Jared C. Bennett added to party Federal Bureau of Investigation(pty:dft), Attorney Jared C. Bennett added to party National Security Agency(pty:dft)(Bennett, Jared) (Entered: 11/18/2015)
11 ORDER granting 10 Motion for Extension of Time to Answer re 1 Complaint. Answer deadline updated for Federal Bureau of Investigation and National Security Agency, answers due 12/18/2015. Signed by Judge Robert J. Shelby on 11/18/2015. (jds) (Entered: 11/18/2015)
12 MOTION for Admission Pro Hac Vice of Rodney Patton (no registration fee required) filed by Defendants Federal Bureau of Investigation, National Security Agency. (Attachments: # 1 Exhibit A&B)(Bennett, Jared) (Entered: 11/25/2015)
13 MOTION for Admission Pro Hac Vice of James J. Gilligan (no registration fee required) filed by Defendants Federal Bureau of Investigation, National Security Agency. (Attachments: # 1 Exhibit A & B)(Bennett, Jared) (Entered: 11/25/2015)
14 MOTION for Admission Pro Hac Vice of Caroline Anderson (no registration fee required) filed by Defendants Federal Bureau of Investigation, National Security Agency. (Attachments: # 1 Exhibit A & B)(Bennett, Jared) (Entered: 11/25/2015)
15 MOTION for Admission Pro Hac Vice of Julia Berman (no registration fee required) filed by Defendants Federal Bureau of Investigation, National Security Agency. (Attachments: # 1 Exhibit A&B)(Bennett, Jared) (Entered: 11/25/2015)
16 ORDER granting 12 , 13 , 14 , and 15 Motion for Admission Pro Hac Vice of Caroline J. Anderson,Julia Berman,James Jordan Gilligan,Rodney Patton for Federal Bureau of Investigation and National Security Agency. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov . Signed by Judge Robert J. Shelby on 11/30/2015. (jds) (Entered: 11/30/2015)
17 MOTION to Dismiss for Lack of Jurisdiction and Memorandum in Support filed by Defendants Federal Bureau of Investigation, National Security Agency. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Patton, Rodney) (Entered: 12/18/2015)
18 MOTION for Admission Pro Hac Vice of James R. Whitman (no registration fee required) filed by Defendants David Addington, George W. Bush, Richard B. Cheney, Michael V. Hayden. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A&B) Attorney Jared C. Bennett added to party David Addington(pty:dft), Attorney Jared C. Bennett added to party George W. Bush(pty:dft), Attorney Jared C. Bennett added to party Richard B. Cheney(pty:dft), Attorney Jared C. Bennett added to party Michael V. Hayden(pty:dft)(Bennett, Jared) (Entered: 12/28/2015)
19 ORDER granting 18 Motion for Admission Pro Hac Vice of James R. Whitman for David Addington,James R. Whitman for George W. Bush,James R. Whitman for Richard B. Cheney,James R. Whitman for Michael V. Hayden. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local

01/05/2016 01/06/2016 01/06/2016 01/07/2016 01/11/2016 02/10/2016
02/10/2016 02/12/2016 02/18/2016
02/25/2016 03/10/2016 03/11/2016

rules from the courts web site at http://www.utd.uscourts.gov . Signed by Judge Robert J. Shelby on 12/29/2015. (jds) (Entered: 12/29/2015)
20 MOTION for Extension of Time to File Response/Reply as to 17 MOTION to Dismiss for Lack of Jurisdiction and Memorandum in Support filed by Plaintiffs William Grant Bagley, Daniel Darger, Thomas Nelson Huckin, Deeda Seed, Howard Stephenson, Mary Josephine Valdez. (Attachments: # 1 Text of Proposed Order ORDER) Motions referred to Dustin B. Pead.(Anderson, Ross) (Entered: 01/05/2016)
21 STIPULATION re 20 MOTION for Extension of Time to File Response/Reply as to 17 MOTION to Dismiss for Lack of Jurisdiction and Memorandum in Support by William Grant Bagley, Daniel Darger, Thomas Nelson Huckin, Deeda Seed, Howard Stephenson, Mary Josephine Valdez. (Anderson, Ross) (Entered: 01/06/2016)
22 ORDER granting 20 Motion for Extension of Time to File Response/Reply re 17 MOTION to Dismiss for Lack of Jurisdiction; Responses due by 2/19/2016. Signed by Magistrate Judge Dustin B. Pead on 1/6/2016. (jds) (Entered: 01/06/2016)
23 Stipulated MOTION to stay individual−capacity claims by David Addington, George W. Bush, Richard B. Cheney, Michael V. Hayden. (Attachments: # 1 Text of Proposed Order)(Whitman, James) Modified event type on 1/7/2016 (jds). (Entered: 01/07/2016)
24 ORDER granting 23 Motion to Stay for sixty (60) days after the court resolves the pending motion to dismiss filed by the Government Defendants. Signed by Judge Robert J. Shelby on 1/11/2016. (jds) (Entered: 01/11/2016)
25 Stipulated MOTION for Leave to File Excess Pages and Defendants' Consent to Plaintiffs' Amendment of the Complaint and Stipulation Regarding Defendants' Reply Memorandum in Support of Motion to Dismiss filed by Plaintiffs William Grant Bagley, Daniel Darger, Thomas Nelson Huckin, Deeda Seed, Howard Stephenson, Mary Josephine Valdez. (Attachments: # 1 Text of Proposed Order Regarding Plaintiffs' Amended Complaint and Defendants' Reply Memorandum in Support of Motion to Dismiss) Motions referred to Dustin B. Pead.(Anderson, Ross) (Entered: 02/10/2016)
26 AMENDED COMPLAINT for Constitutional, Common Law, and Statutory Violations, Seeking Damages, Declaratory, and Injunctive Relief against All Defendants with Jury Demand., filed by Thomas Nelson Huckin, Howard Stephenson, Daniel Darger, William Grant Bagley, Mary Josephine Valdez, Deeda Seed. (Anderson, Ross) (Entered: 02/10/2016)
27 ORDER re 26 AMENDED COMPLAINT and granting 25 Motion for Leave to File Excess Pages for its Reply Memorandum in Support of the Motion to Dismiss. Signed by Magistrate Judge Dustin B. Pead on 2/12/2016. (jds) (Entered: 02/12/2016)
28 Plaintiff's MEMORANDUM in Opposition re 17 MOTION to Dismiss for Lack of Jurisdiction and Memorandum in Support filed by Plaintiffs William Grant Bagley, Daniel Darger, Thomas Nelson Huckin, Deeda Seed, Howard Stephenson, Mary Josephine Valdez. (Attachments: # 1 Supplement Memorandum for the Heads of Executive Departments and Agencies Re: Freedom of Information Act, # 2 Supplement Memorandum for Heads of Departments and Agencies Re: President's Memorandum on Transparency and Open Government − Interagency Collaboration)(Anderson, Ross) (Entered: 02/18/2016)
29 NOTICE OF HEARING ON MOTION re: 17 MOTION to Dismiss for Lack of Jurisdiction : (Notice generated by Mary Jane McNamee) Motion Hearing set for 5/5/2016 at 1:30 PM in Rm 7.300 before Judge Robert J. Shelby. (mjm) (Entered: 02/25/2016)
30 Consent MOTION for Extension of Time to File Response/Reply in Support of Motion to Dismiss filed by Defendant National Security Agency. (Attachments: # 1 Text of Proposed Order) Motions referred to Dustin B. Pead.(Patton, Rodney) (Entered: 03/10/2016)
31 DOCKET TEXT ORDER granting 30 Motion for Extension of Time to File Response/Reply re 17 MOTION to Dismiss for Lack of Jurisdiction and Memorandum in Support. Defendant's Reply is due by 3/15/2016. Signed by Magistrate Judge Dustin B. Pead on 3/11/2016. No attached document. (jag) (Entered: 03/11/2016)

03/15/2016 04/04/2016 07/14/2016
01/10/2017 01/20/2017 01/23/2017 02/03/2017
02/06/2017 02/21/2017 02/22/2017 02/23/2017 03/03/2017
03/13/2017
03/13/2017

32 REPLY to Response to Motion re 17 MOTION to Dismiss for Lack of Jurisdiction and Memorandum in Support of Motion to Dismiss filed by Defendant National Security Agency. (Patton, Rodney) (Entered: 03/15/2016)
33 AMENDED NOTICE OF HEARING ON MOTION re: 17 MOTION to Dismiss for Lack of Jurisdiction : (Notice generated by Mary Jane McNamee) Motion Hearing RESET for 7/14/2016 at 1:30 PM in Rm 7.300 before Judge Robert J. Shelby. (mjm) (Entered: 04/04/2016)
34 Minute Entry for proceedings held before Judge Robert J. Shelby: Motion Hearing held on 7/14/2016, re: 17 MOTION to Dismiss for Lack of Jurisdiction filed by National Security Agency, Federal Bureau of Investigation. The court hears oral argument and takes the matter under advisement. An order will be issued by the court. Attorney for Plaintiff: Ross Anderson; Attorney for Defendant: James Gilligan, Caroline Anderson. Court Reporter: Ray Fenlon.(mjm) (Entered: 07/14/2016)
35 MEMORANDUM DECISION AND ORDER denying 17 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Robert J. Shelby on 1/10/2017. (jds) (Entered: 01/10/2017)
36 Consent MOTION for Extension of Time to File Answer re 26 Amended Complaint, and Memorandum in Support filed by Defendant National Security Agency. (Attachments: # 1 Text of Proposed Order) Motions referred to Dustin B. Pead.(Gilligan, James) (Entered: 01/20/2017)
37 ORDER granting 36 Motion for Extension of Time to Answer re 26 Amended Complaint. Answer deadline updated for National Security Agency answer due 2/7/2017. Signed by Magistrate Judge Dustin B. Pead on 1/23/2017. (jds) (Entered: 01/23/2017)
38 Consent MOTION for Extension of Time to File Answer re 26 Amended Complaint, and Memorandum in Support (Defendant National Security Agencys Second Unopposed Motion for Extension of Time To File Answer) filed by Defendant National Security Agency. (Attachments: # 1 Text of Proposed Order) Motions referred to Dustin B. Pead.(Gilligan, James) (Entered: 02/03/2017)
39 ORDER granting 38 Motion for Extension of Time to Answer re 26 Amended Complaint. Answer deadline updated for National Security Agency answer due 2/21/2017. Signed by Magistrate Judge Dustin B. Pead on 2/6/2017. (jds) (Entered: 02/06/2017)
40 ANSWER to 26 Amended Complaint, filed by National Security Agency.(Gilligan, James) (Entered: 02/21/2017)
41 Joint MOTION for Scheduling Order and Memorandum in Support (joint Motion for an Interim Scheduling Order) filed by Defendant National Security Agency. (Attachments: # 1 Text of Proposed Order) Motions referred to Dustin B. Pead.(Gilligan, James) (Entered: 02/22/2017)
42 ORDER granting 41 Joint Motion for Interim Scheduling Order. Signed by Magistrate Judge Dustin B. Pead on 2/23/2017. (jds) (Entered: 02/23/2017)
43 MOTION for Judgment on the Pleadings and Memorandum in Support (Defendant National Security Agency's Motion and Supporting Memorandum for Judgment on the Pleadings) filed by Defendant National Security Agency. (Attachments: # 1 Affidavit Ex. A (Decl. of Wayne Murphy), # 2 Exhibit Ex. B, # 3 Text of Proposed Order)(Gilligan, James) (Entered: 03/03/2017)
44 MOTION to Dismiss Party Bush, Cheney, Hayden, and Addington and Memorandum in Support and Motion for Summary Judgment in favor of Bush, Cheney, Hayden, and Addington and Memorandum in Support filed by Defendants David Addington, George W. Bush, Richard B. Cheney, Michael V. Hayden. (Attachments: # 1 Appendix)(Whitman, James) (Entered: 03/13/2017)
45 NOTICE of Substitution of United States as defendant as to Count X and a portion of Count I of plaintiffs' amended complaint by David Addington, George W. Bush, Richard B. Cheney, Michael V. Hayden (Whitman, James) (Entered: 03/13/2017)

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04/26/2018
05/01/2018

46 Joint MOTION for Scheduling Order For Further Proceedings filed by Defendant National Security Agency. (Attachments: # 1 Text of Proposed Order) Motions referred to Dustin B. Pead.(Gilligan, James) (Entered: 03/24/2017)
47 ORDER granting 46 Joint MOTION for Scheduling Order For Further Proceedings. Signed by Magistrate Judge Dustin B. Pead on 3/27/2017. (jds) (Entered: 03/27/2017)
48 STATUS REPORT (Joint) by Federal Bureau of Investigation, National Security Agency. (Attachments: # 1 Text of Proposed Order)(Anderson, Caroline) (Entered: 06/26/2017)
49 SCHEDULING ORDER re 48 Joint Status Report: Discovery due by 3/23/2018. Plaintiffs memorandum in opposition to NSAs motion for judgment on the pleadings on or before 5/22/18. Defendants reply in support of its motion for judgment on the pleadings on or before 6/21/18. Signed by Magistrate Judge Dustin B. Pead on 6/28/2017. (jds) (Entered: 06/28/2017)
50 Joint MOTION for Scheduling Order Modification and to Set a Schedule for Resolving Discovery Disputes filed by Defendant National Security Agency. (Attachments: # 1 Text of Proposed Order) Motions referred to Dustin B. Pead.(Patton, Rodney) (Entered: 02/01/2018)
51 ORDER: This matter comes before the Court upon the parties' 50 Joint Motion to Modify the Court's Scheduling Order and to Set a Schedule for Resolving Discovery Disputes. Upon consideration of the parties motion and their submissions in support thereof, IT IS HEREBY ORDERED THAT, the Court's Scheduling Order, dated 6/28/2017, 49 is modified as set forth in the order. Signed by Magistrate Judge Dustin B. Pead on 2/1/18. (dla) (Entered: 02/02/2018)
52 Joint MOTION for Extension of Time Jurisdictional Discovery filed by Defendant National Security Agency. (Attachments: # 1 Text of Proposed Order) Motions referred to Dustin B. Pead.(Patton, Rodney) (Entered: 03/07/2018)
53 ORDER to Extend Time: This matter comes before the Court upon the parties' 52 Joint Motion for an Extension of Time. Upon consideration of the parties' motion and their submissions in support thereof, IT IS HEREBY ORDERED THAT, the Court's Order, dated 2/2/2018, 51 is modified as set forth in the Order. Signed by Magistrate Judge Dustin B. Pead on 3/8/18. (dla) (Entered: 03/08/2018)
54 NOTICE of Appearance by Olivia Hussey Scott on behalf of National Security Agency (Scott, Olivia) (Entered: 03/22/2018)
55 Stipulated MOTION for Extension of Time (1) End of conferral period regarding written discovery requests, draft Rule 30(b)(6) deposition notice, and draft third−party subpoenas. (2) Deadline for the filing of motions to compel and motions for protective order regarding written discovery requests, draft Rule 30(b)(6) deposition notice, and draft third−party subpoenas. filed by Plaintiffs William Grant Bagley, Daniel Darger, Thomas Nelson Huckin, Deeda Seed, Howard Stephenson, Mary Josephine Valdez. (Attachments: # 1 Text of Proposed Order) Motions referred to Dustin B. Pead.(Anderson, Ross) (Entered: 04/25/2018)
56 ORDER granting 55 Stipulated Motion for Extension of Time. The 53 Court's Order, dated 3/8/2018, is modified as follows: 6/8/2018: End of conferral period regarding written discovery requests, draft Rule 30(b)(6) deposition notice, and draft third−party subpoenas; 7/6/2018: Deadline for the filing of motions to compel and motions for protective order regarding written discovery requests, draft Rule 30(b)(6) deposition notice, and draft third−party subpoenas. The parties remain required, within ten days of the resolution of all discovery disputes, whether by agreement or court order, to propose to the Court a new timetable for the completion of any remaining discovery and the remaining briefing on the Defendant NSA's motion for judgment on the pleadings. Signed by Magistrate Judge Dustin B. Pead on 4/26/18. (dla) (Entered: 04/26/2018)
57 ORDER: In March 2017, Defendant National Security Agency filed a 43 Motion for Judgment on the Pleadings. Ten days later, the individual Defendants filed a 44 Motion to Dismiss and Motion for Summary Judgment. Because the parties have been and remain engaged in jurisdictional discovery, responses to those motions have not yet been filed over a year later. As recently as last week Judge Pead granted a

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stipulated motion extending deadlines for the discovery process the parties are utilizing. Given the length of time that has passed since the pending Motions were filed, and the present state of the ongoing discovery, the court DENIES the pending Motions without prejudice to refile the Motions, as written or amended, no later than 30 days after completion of jurisdictional discovery. In the meantime, the individual Defendants need not answer or otherwise respond to the Amended Complaint. Save for contemplating the refiling of the Motions, this Order does not otherwise affect Judge Pead's recent scheduling order. This Order preserves all issues and defenses raised by the filing of the Motions in the first instance. Signed by Judge Robert J. Shelby on 5/1/18. (dla) (Entered: 05/01/2018)
58 Stipulated MOTION for Protective Order filed by Defendants Federal Bureau of Investigation, National Security Agency. (Attachments: # 1 Text of Proposed Order) Motions referred to Dustin B. Pead. Attorney Olivia Hussey Scott added to party Federal Bureau of Investigation(pty:dft)(Scott, Olivia) (Entered: 06/04/2018)
59 PROTECTIVE ORDER. Signed by Magistrate Judge Dustin B. Pead on 6/5/18. (dla) (Entered: 06/05/2018)
60 Joint MOTION for Extension of Time the remaining deadlines set forth in the scheduling order (ECF No. 56) governing jurisdictional discovery and Memorandum in Support , and for an Enlargement of the page Limitations filed by Defendant National Security Agency. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order) Motions referred to Dustin B. Pead.(Scott, Olivia) (Entered: 06/25/2018)
61 ORDER granting 60 Motion for Extending Time and Enlargement of Page Limits: the Court's Order, dated April 26, 2018 56 is modified as set forth in the attached order. The page limitation shall be enlarged from 10 pages to 25 pages for both (1) the Plaintiffs' motion to compel regarding written discovery requests, draft Rule 30(b)(6) deposition notice, and draft third−party subpoenas, and (2) the Defendant NSA's response thereto and motion for protective order. Additionally, the page limitation shall be enlarged from 10 pages to 15 pages for both (1) the Plaintiffs' reply in support of their motion to compel and response to NSA's motion for protective order, and (2) the Defendant NSA's reply in support of any filed motion for a protective order. The parties remain required, within ten days of the resolution of all discovery disputes, whether by agreement or court order, to propose to the Court a new timetable for the completion of any remaining discovery and the briefing on the Defendant NSA's anticipated motion for judgment on the pleadings. Signed by Magistrate Judge Dustin B. Pead on 6/26/18. (dla) (Entered: 06/27/2018)
62 Plaintiff's MOTION to Compel Discovery Responses and Deposition Testimony and Memorandum in Support filed by Plaintiffs William Grant Bagley, Daniel Darger, Thomas Nelson Huckin, Deeda Seed, Howard Stephenson, Mary Josephine Valdez. (Attachments: # 1 Appendix of Exhibits) Motions referred to Dustin B. Pead.(Anderson, Ross) (Entered: 09/14/2018)
63 Plaintiff's MOTION to Dismiss and Memorandum in Support filed by Plaintiffs William Grant Bagley, Daniel Darger, Thomas Nelson Huckin, Deeda Seed, Howard Stephenson, Mary Josephine Valdez. (Attachments: # 1 Text of Proposed Order)(Anderson, Ross) (Entered: 09/27/2018)
64 ORDER DISMISSING CASE: Upon consideration of the Plaintiffs 63 Motion to Dismiss, and for good cause appearing, the court ORDERS that this matter be dismissed without prejudice, the parties to bear their own costs and attorneys' fees. The clerk of court is directed to close the case. Case Closed. Magistrate Judge Dustin B. Pead no longer assigned to case. Signed by Judge Robert J. Shelby on 9/27/18. (dla) (Entered: 09/27/2018)