Case 2:14-cv-00705-CB Document 1 Filed 06/02/14 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ELLIOTT J. SCHUCHARDT, individually and doing business as the Schuchardt Law Firm,

CIVIL DIVISION Case No. ________________

Plaintiff,

v.

JURY TRIAL DEMANDED

BARACK H. OBAMA, in his capacity as President of the United States; JAMES R. CLAPPER, in his official capacity as Director of National Intelligence; ADM. MICHAEL S. ROGERS, in his official capacity as Director of the National Security Agency and Chief of the Central Security Service; and JAMES B. COMEY, in his official capacity as Director of the Federal Bureau of Investigation,

Defendants.

CIVIL COMPLAINT

The Plaintiff, Elliott J. Schuchardt, individually and doing business as the

Schuchardt Law Firm, files this Complaint against the above-captioned Defendants.

Parties

1. The Plaintiff, Elliott J. Schuchardt, is an attorney having an office located at

United States Steel Building, Suite 660, 600 Grant Street, Pittsburgh, PA 15219.

2. Defendant Barack H. Obama is President of the United States. As such, he

has ultimate authority over the actions of the United States federal government.

President Obama maintains an address at The White House, 1600 Pennsylvania Avenue,

Washington, DC 20500.

Case 2:14-cv-00705-CB Document 1 Filed 06/02/14 Page 2 of 9
3. Defendant James R. Clapper is the Director of National Intelligence (“DNI”). As such, Clapper has ultimate authority over the activities of the intelligence community. Defendant Clapper maintains an address at James R. Clapper, Washington, DC 20511.
4. Defendant Admiral Michael R. Rogers is the Director of the National Security Agency (“NSA”). As such, Rogers has ultimate authority for supervising and implementing all operations and functions of the NSA, the agency responsible for conducting surveillance authorized by the challenged law. Admiral Rogers maintains an address at National Security Agency, 9800 Savage Road, Fort Meade, MD 20755.
5. Defendant James B. Comey is the Director of the FBI. As such, Comey is responsible for applications made to the Foreign Intelligence Surveillance Court under Section 215 of the Patriot Act. Defendant Comey maintains an address at FBI Headquarters, 935 Pennsylvania Avenue, N.W., Washington, DC 20535-0001.
Background 6. The Plaintiff, Elliott J. Schuchardt, is a consumer of various types of electronic communication, storage, and internet-search services. These include the email services provided by Google and Yahoo; the internet search service provided by Google; the cloud storage service provided by Dropbox; the e-mail and instant message services provided by Facebook; and the cell phone and text communication service provided by Verizon Communications. 7. The Defendants are unlawfully intercepting, accessing and storing the private communications of the Plaintiff, made or stored through such services. 8. This complaint will refer to the Defendants' above-described activities as the “collection” of private communications.
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9. The Defendants’ collection of data includes both the content of the Plaintiff’s e-mail, as well as the “metadata” associated with such e-mail.
10. For purposes of this complaint, the content of an e-mail includes the actual text of the e-mail and any attachments to the e-mail, including photographs and documents.
11. The term “metadata” describes how, when and by whom a particular set of data was created, as well as the format of the data.
12. For an e-mail, the metadata includes the e-mail accounts which sent and received the e-mail, the sender’s e-mail service provider, the date and time the e-mail was sent, and the name and address of each account holder.
13. For a telephone call, the metadata includes the originating and destination phone numbers, the date and time of the call, the duration of the call, and the name and address of the persons who hold such phone numbers.
14. Since March 12, 2006, the Defendants have been collecting both the content and the metadata of the Plaintiffs’ private e-mail communications sent through the Yahoo e-mail system.
15. Since approximately 2008, the Defendants have been collecting the metadata associated with the Plaintiff's cell phone communications through Verizon Communications.
16. Since January 14, 2009, the Defendants have been collecting both the content and the metadata of the Plaintiffs’ private e-mail communications sent through the Google “gmail” e-mail system.
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17. Since January 14, 2009, the Defendants have been collecting the content and the metadata of the Plaintiffs’ private internet search history through the Google search website.
18. Since June 3, 2009, the Defendants have been collecting the content of the Plaintiff's e-mail and instant messages through Facebook.
19. Upon information and belief, since approximately June 2013, the Defendants have been collecting the content and metadata of documents stored by the Plaintiff using the Dropbox cloud storage service.
20. The documents, images and communications collected by the Defendants contain information of a private and confidential nature. Such communications include bank account numbers; credit card numbers; passwords for financial data; health records; and trade secrets of a confidential and valuable nature.
21. The documents and communications collected by the Defendants also include communications with clients of Schuchardt's law firm, which are privileged and confidential under applicable law.
22. Upon information and belief, the Defendants are storing such information in a computer database, or through a government program, which the Defendants call “Prism.”
23. The Defendants’ conduct is unlawful under the United States Constitution, the civil and criminal laws of the federal government, and the civil and criminal laws of the Commonwealth of Pennsylvania.
24. It is impossible to understate the danger of the Defendants' conduct. The framers of the United States constitution were familiar with abusive governmental conduct. They therefore specifically stated that the United States government would not
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have the power to search and seize the private papers of United States citizens without obtaining a warrant from a neutral and detached magistrate, issued upon a finding of probable cause.
25. Now, for the first time in history, a small group of persons within the United States government is attempting to seize all of the private, electronic communications of the American citizenry, with little or no independent review.
26. The system set up by the Defendants constitutes nothing more than a system of “turnkey totalitarianism.” If the Defendants’ conduct is not reigned in promptly by the courts, the Defendants will have the power to engage in widespread blackmail, and theft of significantly more than information.
27. Every citizen of the United States is at risk. This includes the trade secrets of the Fortune 500 and billions of dollars held by New York investment banks.
COUNT I Declaratory and Injunctive Relief Violation of the Fourth Amendment 28. The Plaintiff incorporates by reference all of the above paragraphs as though set forth herein in their entirety. 29. According to 28 U.S.C. § 2201, this Court has the power to adjudicate a dispute between the Plaintiff and the Defendants involving any issue involving federal law. 30. The Plaintiff is aggrieved by the above-described conduct of the Defendants. 31. The Defendants are subject to the law established by the United States Constitution. 32. According to the 4th Amendment of the United States Constitution:
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The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 33. The Plaintiff has an expectation of privacy in the above-described private information and electronic communciations being collected by the Defendants. 34. The Defendants have unlawfully collected such information in violationof the 4th Amendment, without obtaining a warrant and without probable cause. 35. As of this date, the Defendants have refused to provide any public explanation of the legal authority that purports to authorize their intrusion into the affairs of the Plaintiff. 36. The Plaintiff respectfully submits that any such purported authority, when ultimately disclosed by the Defendants, is unlawful as a violation of the 4th Amendment of the United States Constitution. 37. If the Defendants are purporting to act pursuant to secret orders established by the Foreign Intelligence Surveillance Court, the Plaintiff respectfully submits that any such authority is also unlawful as a violation of the due process clause of the 14th Amendment. WHEREFORE, the Plaintiff respectfully requests that this Honorable Court enter an order (a) enjoining the Defendants from engaging in any further collection of the above-described confidential information of the Plaintiff, and (b) establishing procedures to ensure that the Defendants refrain from unlawful conduct in the future.
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COUNT II Injunctive Relief Intrusion / Invasion of Privacy 38. The Plaintiff incorporates by reference all of the above paragraphs as though set forth herein in their entirety. 39. The Defendants have invaded the privacy of the Plaintiff -- and have intruded upon the private affairs of the Plaintiff -- in violation of Pennsylvania law. 40. It is unclear whether monetary damages will be sufficient to compensate the Plaintiff. 41. The Defendants have already compromised, or caused the termination of, all secure e-mail communication services based in the United States. This includes the email service, Lavabit, which previously sought to keep its communications safe and private from the Defendants. 42. Upon information and belief, the Defendants have also compromised the security of the cloud storage service, Dropbox. 43. Given the dearth of secure, alternative e-mail and cloud storage services available in the United States, the Plaintiff respectfully seeks injunctive relief against the Defendants. WHEREFORE, the Plaintiff respectfully requests that this Honorable Court enter an order (a) enjoining the Defendants from engaging in any further collection of the above-described confidential information of the Plaintiff, and (b) establishing procedures to ensure that the Defendants refrain from unlawful conduct in the future.
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COUNT III Declaratory and Injunctive Relief Violation of the Foreign Intelligence Surveillance Act 44. The Plaintiff incorporates by reference all of the above paragraphs as though set forth herein in their entirety. 45. According to 28 U.S.C. § 2201, this Court has the power to adjudicate a dispute between the Plaintiffs and the Defendants involving any issue involving federal law. 46. The Plaintiff is aggrieved by the above-described conduct of the Defendants. 47. If the Defendants are purporting to act pursuant to the Foreign Intelligence Surveillance Act, then it appears that the Defendants are in violation of such act. 48. According to 50 U.S.C. § 1861(b)(2)(B), the Defendants are required to utilize “minimization procedures” with respect to information that is inadvertently obtained concerning an “unconsenting United States person” during an investigation relating to international terrorism or clandestine intelligence activities. 49. On July 29, 2009, Attorney General Eric Holder adopted minimization procedures that allowed the Defendants to retain the Plaintiff's confidential and valuable information for a period of up to five years, and possibly longer. 50. Such minimization procedures were kept secret from the Plaintiff until recently. 51. The minimization procedures adopted by the Attorney General are unlawful, and do not comply with the federal law.
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52. The Foreign Intelligence Surveillance Act does not contemplate, or authorize, the retention of the Plaintiff's confidential information for a period of five years.
WHEREFORE, the Plaintiff respectfully requests that this Honorable Court enter an order determining that the maximum duration of the minimization procedures under the Foreign Intelligence Surveillance Act, as it applies to the Plaintiffs’ confidential information, is substantially less than five years.
Respectfully submitted, By: /s/ Elliott J. Schuchardt
Elliott Schuchardt PA I.D. #78911 SCHUCHARDT LAW FIRM U.S. Steel Tower, Suite 660 600 Grant Street Pittsburgh, PA 15219 Phone: (412) 414-5138 E-mail: elliott016@gmail.com Pro Se
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 Case 2:14-cv-00705-CB Document 19 Filed 11/24/14 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ELLIOTT J. SCHUCHARDT, individually and doing business as the Schuchardt Law Firm, on behalf of himself and all others similarly situated,
Plaintiffs, v.
BARACK H. OBAMA, in his capacity as President of the United States; JAMES R. CLAPPER, in his official capacity as Director of National Intelligence; ADM. MICHAEL S. ROGERS, in his official capacity as Director of the National Security Agency and Chief of the Central Security Service; and JAMES B. COMEY, in his official capacity as Director of the Federal Bureau of Investigation,

CIVIL DIVISION Case No. 2:14-cv-00705-CB
COMPLAINT – CLASS ACTION CLAIM OF UNCONSTITUTIONALITY JURY TRIAL DEMANDED

Defendants.

SECOND AMENDED COMPLAINT

The Plaintiff, Elliott J. Schuchardt, individually and doing business as the

Schuchardt Law Firm, files this Amended Complaint against the above-captioned

Defendants, on behalf of himself and all those similarly situated.

Parties

1. The Plaintiff, Elliott J. Schuchardt, is an attorney having an office located at

United States Steel Building, Suite 660, 600 Grant Street, Pittsburgh, PA 15219.

2. Defendant Barack H. Obama is President of the United States. As such, he

has ultimate authority over the actions of the United States federal government.

President Obama maintains an address at The White House, 1600 Pennsylvania Avenue,

Washington, DC 20500.

Case 2:14-cv-00705-CB Document 19 Filed 11/24/14 Page 2 of 30
3. Defendant James R. Clapper is the Director of National Intelligence (“DNI”). As such, Clapper has ultimate authority over the activities of the intelligence community. Defendant Clapper maintains an address at James R. Clapper, Director of National Intelligence, Washington, DC 20511.
4. Defendant Admiral Michael R. Rogers is the Director of the National Security Agency (“NSA”). As such, Rogers has ultimate authority for supervising and implementing all operations and functions of the NSA, the agency responsible for conducting surveillance authorized by the challenged law. Admiral Rogers maintains an address at National Security Agency, 9800 Savage Road, Fort Meade, MD 20755.
5. Defendant James B. Comey is the Director of the FBI. As such, Comey is responsible for applications made to the Foreign Intelligence Surveillance Court under Section 215 of the Patriot Act. Defendant Comey maintains an address at FBI Headquarters, 935 Pennsylvania Avenue, N.W., Washington, DC 20535-0001.
Background 1. This lawsuit seeks an injunction against the Defendants’ bulk collection of domestic e-mail and phone records, in violation of the 4th Amendment of the United States Constitution. 2. The facts of this case are fairly well established. 3. In approximately 1996, the general public started using e-mail on a widespread basis. 4. Shortly thereafter, the federal government’s electronic surveillance agency -- the National Security Agency (“NSA”) -- began intercepting and storing international e-mail.
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5. Domestic e-mail, however, was off limits to the agency without a court order. This is because of the requirements of the Fourth Amendment of the United States constitution.
6. On October 4, 2001, former President George W. Bush authorized a surveillance program that involved the government’s collection of domestic e-mail without a warrant.
7. Since that date, a steady stream of high-ranking government officials has come forward to warn the American people of the implications – and dangers -- of the government’s conduct.
Binney allegations 8. One of the first critics was William E. Binney, a senior employee of the NSA. Over the course of his career – 31 years -- Binney came to be regarded as something as a legend at the NSA, having mentored the technical work of approximately 6,000 employees. 9. While at the NSA, Binney set up a computer program designed to “datamine” foreign e-mail communications quickly and efficiently. 10. After September 11, 2001, Binney learned that the NSA was using a similar type of program to collect and analyze domestic e-mail, without a warrant. 11. Binney tried to warn persons in the United States government that this was occurring, and that it could be extremely dangerous. 12. In late 2001, he resigned from the NSA, because he refused to cooperate in the agency’s actions.
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Jewel v. NSA 13. In May 2006, Mark Klein, an AT&T technician with 22 years of experience, revealed that the NSA was copying e-mail communications on AT&T’s network by means of a secret facility set up in San Francisco. 14. On September 18, 2008, Carolyn Jewel and five other persons filed a class action lawsuit against the NSA in the United States District Court for the Northern District of California. The case is currently pending in such court under case number 08-cv04373-JSW (the “Jewel case”). 15. The complaint contends that the NSA has set up a network of surveillance devices that allow the NSA to acquire “the content of a significant portion of the phone calls, e-mail, instant messages, text messages, web communications – both international and domestic – of virtually every American who uses the phone system or internet.”1 16. The complaint further contends that the defendants in the case are analyzing this data by means of computers, in what is described as a “vast data-mining operation.”2 17. The complaint seeks an order enjoining the Jewel defendants from continuing to access the Plaintiffs’ e-mail and other communications without a court order. 18. Significantly, several former employees of the NSA have filed Affidavits in the case in support of an injunction. 19. On July 2, 2012, William Binney filed an Affidavit. Paragraph 5 of the Affidavit states the following:
1 Jewel Complaint, ¶ 9, Jewel v. NSA, Docket No. 1. 2 Jewel Complaint, ¶ 11, Jewel v. NSA, Docket No. 1.
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[In late 2001,] the NSA began to implement the . . . President’s Surveillance Program (“PSP”). [M]embers of my . . . team were given the task of implementing various aspects of the PSP. They confided in me and told me that the PSP involved the collection of domestic electronic communications traffic without any of the privacy protections built into [the former program].
I resigned from the NSA in late 2001. I could not stay after the NSA began purposefully violating the Constitution.3
20. Thomas Drake, a former employee of the NSA with 29 years of experience
in the field, also filed an affidavit. Drake’s affidavit states as follows:
Various employees who were implementing . . . aspects of the PSP confided in me and told me that the PSP involved the collection of domestic electronic communications traffic without any privacy protections or judicial oversight.
* * *
[The NSA] has, or is in the process of obtaining, the capability to seize and store most electronic communications passing through its U.S. intercept centers. The wholesale collection of data allows the NSA to identify and analyze Entities or Communities of Interest later in a static database.
* * *
Given a central database, the question becomes how the NSA and other federal agencies (FBI, CIA, Homeland Security, etc.) use it. The data is searchable and available. There is no effective technical oversight by Congress or the courts. It is seductively enticing to ignore the law.4
21. Kirk Wiebe, a third former employee of the NSA, also filed a statement in
the case. Paragraph 9 of Wiebe’s affidavit states as follows:
I agree with the analysis and conclusions set forth in Mr. Binney’s declaration, particularly about the capabilities of the NARUS device.
3 Binney Affidavit, ¶ 5, Jewel v. NSA, Docket No. 88 (emphasis added). 4 Drake Affidavit, ¶¶ 7-9 Jewel v. NSA, Docket No. 87 (emphasis added).
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Like Mr. Binney, I have concluded that . . . the NSA has chosen to seize and save all electronic communications.5 22. On August 31, 2011, the United States Court of Appeals for the Ninth Circuit issued an opinion finding that the Jewel plaintiffs had standing to sue the NSA for an injunction. Jewel v. NSA, 673 F.3d 902 (9th Cir. 2011). 23. The case is currently pending before the U.S. District Court for the Northern District of California.
Snowden allegations 24. In June 2013, a new person came forward to warn of the danger of the Defendants’ conduct. That citizen was Edward Snowden. 25. Snowden is a former system administrator for the Central Intelligence Agency (“CIA”) and a counterintelligence trainer at the Defense Intelligence Agency (“DIA”). Snowden later worked for the consulting firm, Booz Allen Hamilton, inside an NSA center located in Hawaii. 26. In these positions, Snowden worked directly with the Chief Information Officer at the CIA to solve the agency's technology problems. He was therefore in a very senior position in the government. 27. While working for the Defendants, Snowden learned that the Defendants were intercepting, monitoring and storing the content of all or substantially all of the e-mail sent by American citizens by means of several large internet service providers. Snowden also learned that the Defendants were collecting information about all phone calls made in the United States.
5 Wiebe Affidavit, ¶ 9, Jewel v. NSA, Docket No. 86 (emphasis added).
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28. Virtually all of this collection activity was being done without a judicial warrant.
29. On March 13, 2013, Defendant James Clapper, the then-Director of National Intelligence, told a committee of the United States Senate that the NSA does "not wittingly" collect information on millions of Americans.
30. Clapper's statement was a knowing falsehood, designed to mislead the United States Congress.6
31. Snowden learned of Clapper's statement on the following day. He then decided to expose the Defendants' bulk collection of private communications.
32. Like William Binney, Snowden had previously tried to obtain reform from inside the United States government. However, he had been unable to do so. He therefore leaked documents revealing the Defendants' collection program to the Guardian and Washington Post newspapers.
33. On June 5, 2013, the Guardian published an article based on Snowden's documents. The article reported that the Defendants had obtained a secret court order from the Foreign Intelligence Surveillance Court (the “FISC”) directing Verizon Business Network Services, Inc. (“Verizon”) to provide to the Defendants all “call detail records” for calls made wholly within the United States.7
6 Clapper's statement was also made under oath, a federal crime punishable by up to eight years in prison. 18 U.S.C. § 1001 (2014). 7 See Ex. A to First Amended Complaint, Glenn Greenwald, “NSA Collecting Phone Records of Millions of Verizon Customers Daily,” Guardian, June 5, 2013. A copy of the Verizon order is attached as Exhibit B to the First Amended Complaint. This complaint incorporates by reference all documents referred to herein that have been filed elsewhere in this case or in the Jewel case.
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34. Shortly thereafter, the Defendants admitted that the FISC order was genuine, and declassified the program.8 There is therefore no issue of fact concerning whether the Defendants are collecting call detail records.
35. The following day, on June 6, 2013, the Guardian published a second article based on Snowden’s documents.9 The article reported that the Defendants had obtained direct access to the servers of several large internet companies, including Yahoo, Google, Facebook, Twitter, Dropbox, and Apple. This program is known as "Prism."
36. The documents show that the Defendants are intercepting, accessing and storing (hereafter, “collecting”) massive quantities of e-mail and other data created by United States citizens.
37. The information collected includes the full content of e-mail, videos, photos, stored data, voice over IP, file transfers, as well as a variety of other information.10
38. Such information is obtained "directly from the servers of these U.S. service providers: Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube and Apple."11
39. According to the documents, the Defendants began collecting information from Microsoft on September 11, 2007; from Yahoo on March 12, 2008; from Google on January 14, 2009; from Facebook on June 3, 2009; from YouTube on September 24, 8 On December 16, 2013, Judge Richard J. Leon of the United States District Court for the District of Columbia found the Defendants' program unconstitutional, and issued a preliminary injunction against the program. See Klayman v. Obama, Case No. 1:13-cv00851-RJL (D.C. Cir. 2013). 9 See Exhibit C to First Amended Complaint, Glenn Greenwald, "NSA Prism Taps into User Data of Apple, Google and Others," Guardian, July 6, 2013. 10 See Exhibit D to First Amended Complaint. 11 Id.
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2010; from Skype on February 6, 2011; from AOL on March 31, 2001; and from Apple in October 2012 (only days after the death of its founder, Steve Jobs).12
40. The above dates (and referenced document) are extremely important. They show that the Defendants are collecting all of the content in the various stated-categories. If the Defendants were not collecting all content, then the above beginning dates for collection of "stored communications" would not be relevant or important to the Defendants.
41. Other documents, provided by Snowden, confirm this understanding. For example, one of the slides provided by Snowden is labeled “New Collection Posture.” It says: “Sniff It All, Know It All, Collect It All, Process It All.”13 Another document boasts that the Defendants are "one step closer to collecting it all."14
42. For example, the Defendants are literally storing every single document stored on Microsoft's Skydrive -- a cloud service. One document states as follows:
Beginning on 7 March 2013, PRISM now collects Microsoft Skydrive data as part of PRISM's standard Stored Communications collection package. . . . This means that analysts will no longer have to make a special request to SSO for this -- a process step that many analysts may not have known about. This success is the result of the FBI working for many months with Microsoft to get this tasking and collection solution established. "Skydrive is a cloud service that allows users to store and access their files on a variety of devices."15
12 See Exhibit E to First Amended Complaint. 13 See Exhibit F to First Amended Complaint. 14 See Exhibit G to First Amended Complaint. 15 See Exhibit H to First Amended Complaint.
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43. According to journalist Bob Woodward, the NSA has developed the ability “to capture all the data, store it, [and] make it instantly available to intelligence analysts and operators.”16
44. The Defendants' collection efforts have become so massive that the Defendants are having difficulty processing all of the data. According to one document obtained from Snowden: "Collection is outpacing [the Defendants'] ability to ingest, process and store to the 'norms' to which [they] have become accustomed."17
45. Any doubt about the meaning of these documents is resolved by the public statements made by Edward Snowden, himself. During a video interview published by the Guardian, on June 10, 2013, Snowden stated:
I, sitting at my desk, could wiretap anyone, from you or your accountant, to a federal judge or even the president, if I had a personal e-mail.18 46. One month later, on July 12, 2013, Snowden released a statement during a press conference. The first paragraph of the statement read as follows: Hello. My name is Edward Snowden. A little over a month ago, I had a family, a home in paradise, and I lived in great comfort. I also had the capability, without a warrant, to search for, seize, and read your communications. Anyone's communications at any time. That is the power to change people's fates. It's also a serious violation of the law, the 4th and 5th Amendments to the Constitution of my country.19
16 Bob Woodward, Obama’s Wars, at 7. 17 See Exhibit I to First Amended Complaint. 18 See Exhibit J to First Amended Complaint, Glenn Greenwald, "X-Keyscore: NSA Tool Collects Nearly Everything A User Does on the Internet," Guardian, July 31, 2013. 19 See Exhibit K to First Amended Complaint, "Edward Snowden Statement: It was the Right Thing to \Do and I Have No Regrets," Guardian, July 13, 2013.
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47. Following Snowden’s disclosures, the Defendants claimed that they were only storing “metadata,” and not the actual words of the citizenry’s electronic communications. Snowden responded to this allegation in March 2014, when he appeared at a TED conference in Vancouver, Canada. During that appearance, Snowden said the following:
The best way to understand PRISM . . . is to first talk about what PRISM isn't. Much of the debate in the U.S. has been about metadata. They've said it's just metadata, it's just metadata . . . . PRISM is about content.20 48. More recently, extended interviews with Snowden have appeared in Laura Poitras’ film, CitizenFour. In the film, Snowden directly states that the Defendants are collecting the full content of Americans’ e-mail, without a warrant. 49. Snowden has therefore confirmed the allegations of Binney, Drake and Wiebe in the Jewel case.
Levinson allegations 50. Following Snowden's disclosures, the Defendants contacted Snowden's e-mail service, Lavabit, and made an extraordinary demand. 51. The Defendants demanded that Lavabit install a device on its server which would have provided the Defendants with access to the full content of all e-mail messages for all of Lavabit's 410,000 customers.21
20 Transcript of Snowden appearance, www.ted.com. 21 See Exhibit L to First Amended Complaint, Statement of Ladar Levinson, Owner of Lavabit.
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52. The Defendants also demanded that the company's owner, Ladar Levinson, provide to the government the private encryption keys for all of Lavabit's e-mail accounts.22
53. On August 8, 2013, Levinson voluntarily shut down Lavabit, because he could no longer provide a secure e-mail service to his customers.23
54. The following day, on August 9, 2013, another encrypted e-mail service -Silent Circle -- voluntarily shut down operations. After doing so, Silent Circle destroyed its e-mail server so that its database of e-mail communications would not fall into the Defendants' hands.
55. Since August 9, 2013, there has been no secure e-mail service within the United States. The content of all e-mail sent or passing through the United States is monitored and/or stored by the Defendants without a warrant.
Defendants’ Purported Authority 56. On January 17, 2014, the White House issued a “Presidential Policy Directive” admitting that the Defendants are collecting “signals intelligence” “in bulk.” 57. The Directive made repeated reference to an obscure presidential order, Executive Order 12333, as partial grounds for the bulk collection of private data. 58. Executive Order 12333 authorizes bulk collection of data about United States citizens for a variety of very broad reasons. The order was originally issued in December 1981. The order was amended in 2004 and 2008, substantially expanding the
22 See Exhibit L to First Amended Complaint. When Levinson challenged the Defendants' demands, the Defendants' argued that they were not bound by the Fourth Amendment because Lavabit's e-mail database would be inspected by "means of a machine." Id. This confirms that the Defendants are data-mining the nation's e-mail database. 23 Id.
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alleged powers granted by the order. The order has been subject to little or no judicial
review.
59. On July 18, 2014, the Washington Post published an article written by John
Napier Tye, a former employee of the United States State Department.
60. In such position, Tye attended two classified National Security Agency
briefings on Executive Order 12333, in Fall 2013 and February 2014, so that he could help prepare the State Department's response to the leaks disclosed by Snowden.24
61. In the article, Tye stated that the Defendants were claiming the legal
authority to collect the nation's entire e-mail database under Executive Order, No. 12333.25 According to Tye:
Once it [your data] transits outside of the US, or is stored on a server outside of the United States . . . it can be collected under 12333. There’s nothing in the executive order that would prevent all of your communications from being collected. . . . When the NSA collects data in a foreign country, it is possible and even likely that they will collect American’s data and communications In theory almost every electronic communication that every American sends to another American within the United States can be collected by the NSA under this authority, outside of our borders, because of how the Internet is designed. . . .
It’s a very intrusive power. Even Congress and the courts don’t know anything about 12333. None of the mechanisms that we have in place is performing an oversight role.26
24 Cyrus Farivar, “Meet John Tye: the kinder, gentler, and by-the-book whistleblower,” Ars Technica, Aug. 20, 2014. 25 John Napier Tye, “Meet Executive Order 12333: The Reagan Rule That Allows the NSA to Spy on Americans,” Washington Post, July 18, 2014. 26 John Haltiwanger, “The U.S. Government Made It Legal to Look at All of Your Messages and This Whistleblower Has Proof,” Elite Daily, Aug. 19, 2014. Tye, a Rhodes Scholar with a law decree from Yale University, maintains that the Defendants’ bulk collection of domestic e-mail is a violation of the Fourth Amendment of the United States
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62. According to a document that was recently declassified, Executive Order 12333 is the “primary source of NSA's foreign intelligence-gathering authority.”27
63. Thus, it appears that the Defendants are doing the bulk of their collection under the purported authority of Executive Order 12333 – a federal rule that was never reviewed or enacted by Congress.
64. The Defendants, however, are not able to obtain everything under Executive Order 12333. To obtain certain information, such as encrypted e-mails, the Defendants need additional information -- from the persons providing such encryption.28
65. To obtain this latter information, the Defendants appear to be using Section 215 of the Patriot Act. 50 U.S.C. § 1861 (2014).
66. Section 215 authorizes the Defendants to request a subpoena, called a “National Security Letter,” from the Foreign Intelligence Surveillance Court (the “FISC”). The entire proceeding is secret and done on an ex parte basis, without the knowledge of the proposed recipient of the letter. Id.
67. The Foreign Intelligence Surveillance Court (“FISC”) is authorized to issue such a letter upon a finding that there are “reasonable grounds” to believe that the requested records are “relevant to an authorized investigation.” 50 U.S.C. § 1861(b)(2)(A) (2014).
Constitution. John Napier Tye, “Meet Executive Order 12333: The Reagan Rule That Allows the NSA to Spy on Americans,” Washington Post, July 18, 2014. 27 “Overview of Signals Intelligence Authorities,” available on ACLU website. 28 While the Defendants can intercept encrypted e-mail, they cannot read them without the encryption codes. This is because even the fastest supercomputers cannot obtain encryption codes that exceed a certain number of digits. This is what created the market for Lavabit and Silent Circle.
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68. Once a National Security Letter has been issued, the recipient of such letter is prohibited from disclosing the existence of the letter to any person other than his or her attorney, and persons authorized by the FBI. 50 U.S.C. § 1861(d)(1) (2014).29
69. In addition to the above two sections, the Defendants are purporting to act pursuant to Section 702 of the Foreign Intelligence Surveillance Act ("FISA"), codified at 50 U.S.C. § 1881a.
70. On June 8, 2013, Defendant James Clapper, the then-Director of National Intelligence, released a statement which admitted and declassified portions of the Prism program.
71. Clapper's statement implied that the Defendants' collection of information was being done solely under Section 702 of FISA.30
72. Clapper's statement was disingenuous, in that it implied that the Defendants' collection of information for the Prism database was far smaller than its actual scope, and that the Defendants were acting under a single, limited authority.
73. As stated above, the Defendants’ collection program under Prism is far broader than the limited collection referred in Clapper’s statement.
74. On June 19, 2014, the U.S. House of Representatives overwhelmingly approved a bill that would prevent the Defendants from conducting searches of the
29 This provision of the law appears to be a patent violation of the First Amendment. Ladar Levinson, the owner of Lavabit, challenged this provision. After many months of litigation, a federal judge authorized him to tell his story publicly. It is only because of his litigation that we know that the Defendants were seizing all of the e-mail in the Lavabit server, together with the decryption pass codes. 30 Section 702 allows the Attorney General and the Director of National Intelligence to obtain information relating to foreign intelligence investigations, subject to review by the FISC. The authority is far more limited than the above two authorities, Section 215 of the Patriot Act and Executive Order 12333.
15

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nation's e-mail database without a warrant. The bill was adopted by a large majority of house members, 293 to 123.
75. The U.S. Senate has not acted on the bill as of this date. Class Action Allegations
76. Pursuant to Rules 23(a) and 23(b) of the Federal Rules of Civil Procedure, the Plaintiff brings this action on behalf of himself and a nationwide class (the "Nationwide Class") of similarly situated persons defined as: American citizens who are subscribers, users, and/or consumers of the internet services of Google, Yahoo, and Facebook, the cloud storage services of Dropbox, and the telecommunication services of Verizon.
77. Excluded from the Nationwide Class are the Defendants, their legal representatives, heirs, successors, and assigns of Defendants, and all judges who may ever adjudicate this case.
78. This action is brought as a class action and may be so maintained pursuant to the provisions of Rule 23 of the Federal Rules of Civil Procedure. The Plaintiff reserves the right to modify the Nationwide Class.
79. Numerosity of the Nationwide Class: The National Class is so numerous that the individual joinder of all members, in this or any action is impracticable. The exact number or identification of Class members is presently unknown to the Plaintiff, but it is believed that the Class numbers over a hundred million citizens. The identity of Class members and their addresses maybe ascertained from the business records for Google, Yahoo, Facebook, Dropbox and Verizon. Class members may be informed of the pendency of this action by a combination of direct mail and/or public notice.
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80. Commonality: 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' surveillance and gathering of American citizens' telephonic, internet, and social media data violated the Plaintiff’s and Class Members' constitutional rights, as guaranteed under the First and Fourth Amendments;
b. Whether the Plaintiff’s and Class members are entitled to declaratory, injunctive and/or equitable relief; and
c. Whether the Plaintiff and Class Members are entitled to declaratory, injunctive and/or equitable relief.
81. Typicality: The Plaintiff’s claims are typical of the claims of the members of the Class because the Plaintiff and the Class members are or were each a subscriber, consumer, or user of the internet services of Google, Yahoo, and Facebook, the cloud storage services of Dropbox, and the telecommunication services of Verizon. The Plaintiff and all members of the Class have similarly suffered harm arising from Defendants' violations of law, as alleged herein.
82. Adequacy: The Plaintiff is an adequate representative of the Class because his interests do not conflict with the interests of the members of the Class they seek to represent. The Plaintiff is not seeking any sort of attorneys fees in this case.31 The Plaintiff intends to prosecute this action vigorously. The Plaintiff will fairly and adequately protect the interest of the members of the Class.
83. This suit may also be maintained as a class action pursuant to Rule 23(b)(2) of the Federal Rule of Civil Procedure 23(b)(2) because Plaintiffs and the Class seek declaratory and injunctive relief, and all of the above factors of numerosity, common
31 If the Plaintiff retains counsel in this matter, then he will be seeking attorneys fees to compensate such counsel.
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questions of fact and law, typicality and adequacy are present. Defendants have acted on grounds generally applicable to the Plaintiff and the Class as a whole, thereby making declaratory and/or injunctive relief proper.
84. Predominance and Superiority: This suit may also be maintained as a class action under Rule 23(b)(3) of the Federal Rule of Civil Procedure because questions of law and fact common to the Class predominate over the questions affecting only individual members of the Class and a class action is superior to other available means for the fair and efficient adjudication of this dispute. The damages suffered by each individual Class member, depending on the circumstances, may be relatively small or modest, especially given the burden and expense of individual prosecution of the complex and extensive litigation necessitated by Defendants' conduct. Furthermore, it would be virtually impossible for the Class members, on an individual basis, to obtain effective redress for the wrongs done to them. Moreover, even if Class members themselves could afford such individual litigation, the court system could not. Individual litigation presents a potential for inconsistent or contradictory judgments. Individualized litigation increases the delay and expenses to all parties and the court system presented by the complex legal issues of the case. By contrast, the class action device presents far fewer management difficulties and provides the benefits of a single adjudication, economy of scale, and comprehensive supervision by a single court.
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COUNT I Declaratory and Injunctive Relief Violation of the Fourth Amendment
Bulk Collection of E-mail 85. The Plaintiff incorporates by reference the allegations set forth in the preceding paragraphs as though fully set forth herein. 86. The Plaintiff, Elliott J. Schuchardt, is an American citizen and constitutional lawyer. 87. Schuchardt is a consumer of various types of electronic communication, storage, and internet-search services. These include the e-mail services provided by Google and Yahoo; the internet search service provided by Google; the cloud storage services provided by Google and Dropbox; the e-mail and instant message services provided by Facebook; and the cell phone and text communication service provided by Verizon Communications. 88. The Defendants are unlawfully intercepting, accessing, monitoring and/or storing the private communications of the Plaintiff, made or stored through such services. 89. This complaint will refer to the Defendants' above-described activities as the “collection” of private communications. 90. The Defendants’ collection of data includes both the content of the Plaintiff’s e-mail, as well as the “metadata” associated with such e-mail. 91. For purposes of this complaint, the content of an e-mail includes the actual text of the e-mail and any attachments to the e-mail, including photographs and documents.
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92. Since March 12, 2006, the Defendants have been collecting both the content and the metadata of the Plaintiffs’ private e-mail communications sent through the Yahoo e-mail system.
93. Since January 14, 2009, the Defendants have been collecting both the content and the metadata of the Plaintiffs’ private e-mail communications sent through the Google “gmail” e-mail system.
94. Since January 14, 2009, the Defendants have been collecting the content and the metadata of the Plaintiffs’ private internet search history through the Google search website.
95. Since June 3, 2009, the Defendants have been collecting the content of the Plaintiff's e-mail and instant messages through Facebook.
96. Upon information and belief, since approximately June 2013, the Defendants have been collecting the content and metadata of documents stored by the Plaintiff using the Dropbox cloud storage service.
97. The documents, images and communications collected by the Defendants contain information of a private and confidential nature. Such communications include bank account numbers; credit card numbers; passwords for financial data; health records; and trade secrets of a confidential and valuable nature.
98. The documents and communications collected by the Defendants also include communications with clients of Schuchardt's law firm, which are privileged and confidential under applicable law.
99. Upon information and belief, the Defendants are storing such information in a computer database, or through a government program, which the Defendants call “Prism.”
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100. Upon information and belief, the Defendants are collecting such information in order to "data mine" the nation's e-mail database. Data mining in the process of collecting, searching and analyzing large amounts of data for the purpose of finding patterns or relationships in such data.
101. The Defendants’ conduct is unlawful under the United States Constitution, the civil and criminal laws of the federal government, and the civil and criminal laws of the Commonwealth of Pennsylvania.
102. It is impossible to understate the danger of the Defendants' conduct. The framers of the United States constitution were familiar with abusive governmental conduct. They therefore specifically stated that the United States government would not have the power to search and seize the private papers of United States citizens without obtaining a warrant from a neutral and detached magistrate, issued upon a finding of probable cause.
103. Now, for the first time in history, a small group of persons within the United States government is attempting to seize all of the private, electronic communications of the American citizenry, with little or no independent review.
104. The system set up by the Defendants – where the government has possession of all private communications and stored electronic documents – is unstable. The system is ripe for abuse and could lead to the destruction of the republic.
105. According to 28 U.S.C. § 2201, this Court has the power to adjudicate a dispute between the Plaintiff and the Defendants involving any issue involving federal law.
106. The Plaintiff is aggrieved by the above-described conduct of the Defendants.
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107. The Defendants are subject to the law established by the United States Constitution.
108. According to the 4th Amendment of the United States Constitution: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
109. The Plaintiff has an expectation of privacy in the above-described private information and electronic communications being collected by the Defendants.
110. The Defendants have unlawfully collected such information in violation of the 4th Amendment, without obtaining a warrant and without probable cause.
111. As of this date, the Defendants have refused to provide any public explanation of the legal authority that purports to authorize their intrusion into the affairs of the Plaintiff.
112. The Plaintiff respectfully submits that any such purported authority, when ultimately disclosed by the Defendants, is unlawful as a violation of the 4th Amendment of the United States Constitution.
113. If the Defendants are purporting to act pursuant to secret orders established by the Foreign Intelligence Surveillance Court, the Plaintiff respectfully submits that any such authority is also unlawful as a violation of the due process clause of the 14th Amendment.
WHEREFORE, the Plaintiff respectfully requests that this Honorable Court enter an order (a) enjoining the Defendants from engaging in any further collection of the above-described information about the Plaintiff and the Nationwide Class, and (b)
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establishing procedures to ensure that the Defendants refrain from unlawful conduct in the future.
COUNT II Declaratory and Injunctive Relief Violation of the Fourth Amendment Bulk Collection of Verizon Metadata 114. The Plaintiff incorporates by reference the allegations set forth in the preceding paragraphs as though fully set forth herein. 115. Since approximately 2008, the Defendants have been collecting the metadata associated with the Plaintiff's cell phone communications through Verizon Communications. 116. Such metadata includes information about the persons that Schuchardt calls, the duration of such calls, and the frequency of such calls. 117. By obtaining such information, the Defendants have arrogated to themselves the ability to monitor Schuchardt’s communications, and Schuchardt’s business and political relationships. By doing so, the Defendants have obtained the power to contact and harass virtually all persons with whom Schuchardt does business. 118. This power is extremely dangerous in the hands of the Defendants. The Defendants are in control of a government organization that with vast police and military powers. 119. The Plaintiff has an expectation of privacy in the above-described information.
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120. According to the Fourth Amendment of the United States Constitution, the power to seize and monitor the communications of citizens is reserved to a court of law, and not to the Defendants.
121. On December 16, 2013, the United States District Court for the District of Columbia found the Defendants' seizure of phone call metadata was unlawful under the Fourth Amendment of the United States Constitution. See Klayman v. Obama, Case No. 1:13-cv-00851-RJL (D.C. Cir. 2013).
122. According to 28 U.S.C. § 2201, this Court has the power to adjudicate a dispute between the Plaintiff and the Defendants involving any issue involving federal law.
WHEREFORE, the Plaintiff respectfully requests that this Honorable Court enter an order (a) enjoining the Defendants from engaging in any further collection of the metadata for the phone calls made through Verizon by the Plaintiff and the Nationwide Class, and (b) establishing procedures to ensure that the Defendants refrain from unlawful conduct in the future.
COUNT III Injunctive Relief Intrusion / Invasion of Privacy 123. The Plaintiff incorporates by reference all of the above paragraphs as though set forth herein in their entirety. 124. The Plaintiff has a reasonable expectation of privacy in the above-described communications being collected by the Defendants. 125. The Defendants have knowingly and intentionally invaded the privacy of the Plaintiff -- and have intruded upon the private affairs of the Plaintiff -- in violation of Pennsylvania law.
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126. The Defendants’ conduct is illegal under the laws of the federal government and the Commonwealth of Pennsylvania.
127. The Defendants are aware that their conduct is unlawful. 128. It is unclear whether monetary damages will be sufficient to compensate the Plaintiff. 129. The Defendants have already compromised, or caused the termination of, all secure e-mail communication services based in the United States. 130. Upon information and belief, the Defendants have also compromised the security of the cloud storage services, Dropbox and Microsoft’s Skydrive. 131. Given the dearth of secure, alternative e-mail and cloud storage services available in the United States, the Plaintiff respectfully seeks injunctive relief against the Defendants. WHEREFORE, the Plaintiff respectfully requests that this Honorable Court enter an order (a) enjoining the Defendants from engaging in any further collection of the above-described confidential information of the Plaintiff and the Nationwide Class, and (b) establishing procedures to ensure that the Defendants refrain from unlawful conduct in the future.
COUNT IV Declaratory and Injunctive Relief Violation of the First Amendment Bulk Collection of E-mail and Verizon Metadata 132. The Plaintiff incorporates by reference all of the above paragraphs as though set forth herein in their entirety.
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133. According to 28 U.S.C. § 2201, this Court has the power to adjudicate a dispute between the Plaintiffs and the Defendants involving any issue involving federal law.
134. The Defendants are collecting the actual content of the Plaintiff’s e-mail and the metadata associated with the Plaintiff’s phone calls made through Verizon.
135. In doing so, the Defendants have violated the First Amendment of the United States constitution. Such amendment states as follows:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. 1st Amend. 136. The Plaintiff is no longer able to freely express himself by means of e-mail or documents stored by means of internet cloud services because the Defendants are collecting and data-mining such documents. 137. In preparing this complaint, the Plaintiff was not able to use e-mail to consult with certain persons, even though the proposed communications would be entirely lawful. This is because the Defendants could provide such communications directly to the lawyers representing the government in this lawsuit. 138. The Defendants have also interfered with the Plaintiff’s ability to freely associate with other persons, because the Defendants have unilaterally obtained, without a warrant, phone and internet data showing with whom the Plaintiff associates. 139. If the Defendants’ conduct is allowed to continue, it is possible that future American governments will use such information to blackmail or target political enemies.
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WHEREFORE, the Plaintiff respectfully requests that this Honorable Court enter an order (a) enjoining the Defendants from engaging in any further collection of the above-described information about the Plaintiff and the Nationwide Class, and (b) establishing procedures to ensure that the Defendants refrain from unlawful conduct in the future.
COUNT V Declaratory and Injunctive Relief Violation of the Foreign Intelligence Surveillance Act 140. The Plaintiff incorporates by reference all of the above paragraphs as though set forth herein in their entirety. 141. According to 28 U.S.C. § 2201, this Court has the power to adjudicate a dispute between the Plaintiffs and the Defendants involving any issue involving federal law. 142. The Plaintiff is aggrieved by the above-described conduct of the Defendants. 143. If the Defendants are purporting to act pursuant to the Foreign Intelligence Surveillance Act, then it appears that the Defendants are in violation of such act. 144. According to 50 U.S.C. § 1861(b)(2)(B), the Defendants are required to utilize “minimization procedures” with respect to information that is inadvertently obtained concerning an “unconsenting United States person” during an investigation relating to international terrorism or clandestine intelligence activities. 145. On July 29, 2009, Attorney General Eric Holder adopted minimization procedures that allowed the Defendants to retain the Plaintiff's confidential and valuable information for a period of up to five years, and possibly longer.
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146. Such minimization procedures were kept secret from the Plaintiff until recently.
147. The minimization procedures adopted by the Attorney General are unlawful, and do not comply with the federal law.
148. The Foreign Intelligence Surveillance Act does not contemplate, or authorize, the retention of the Plaintiff's confidential information for a period of five years.
WHEREFORE, the Plaintiff and the Nationwide Class respectfully request that this Honorable Court enter an order determining that the maximum duration of the minimization procedures under the Foreign Intelligence Surveillance Act, as it applies to the confidential information of the Plaintiff and the Nationwide Class, is substantially less than five years.
COUNT VI Civil Liability 18 U.S.C. § 1810 149. The Plaintiff incorporates by reference all of the above paragraphs as though set forth herein in their entirety. 150. According to 18 U.S.C. § 1810, the Defendants are civilly liable to the Plaintiff for having unlawfully collected the Plaintiff’s private communications and private data. Such statute provides as follows: § 1810. Civil liability An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 101(a) or (b)(1)(A) [50 USCS § 1801(a) or (b)(1)(A)], respectively, 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 109 [50 USCS § 1809] shall have a cause of
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action against any person who committed such violation and shall be entitled to recover-(a) actual damages, but not less than liquidated damages of $ 1,000 or $ 100 per day for each day of violation, whichever is greater; (b) punitive damages; and (c) reasonable attorney's fees and other investigation and litigation costs reasonably incurred. 18 U.S.C. § 1810 (2014). 151. The Defendants have violated such act by collecting and data mining the Plaintiff’s private communications and documents. 152. The Defendants’ conduct has been occurring on a daily basis since at least March 12, 2006 – a total of more than 3,000 days. At $100 per day, the total statutory damages exceeds $300,000, not including punitive damages and attorneys fees. WHEREFORE, the Plaintiff respectfully requests that this Honorable Court enter an order awarding to the Plaintiff and the members of the Nationwide Class (a) actual or statutory damages in this case, (b) punitive damages, and (c) if the Plaintiffs are represented by an attorney other than the Plaintiff, Elliott Schuchardt, reasonable attorneys fees in bringing this action.
Respectfully submitted, By: /s/ Elliott J. Schuchardt
Elliott Schuchardt PA I.D. #78911 SCHUCHARDT LAW FIRM U.S. Steel Tower, Suite 660 600 Grant Street Pittsburgh, PA 15219 Phone: (412) 414-5138 E-mail: elliott016@gmail.com
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CERTIFICATE OF SERVICE
I, Elliott Schuchardt, hereby certify that I served a true and correct copy of the
foregoing Second Amended Complaint on the following person on this 24th day of
November 2014 by means of the Court’s CM / ECF electronic filing system:
Marcia Berman, Esq. United States Dept. of Justice marcia.berman@usdoj.gov Counsel for the Defendants
/s/ Elliott Schuchardt Elliott Schuchardt

 
 Case 2:14-cv-00705-CB Document 20 Filed 12/11/14 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

(Pittsburgh Division)

_______________________________________

)

ELLIOTT SCHUCHARDT, individually )

and d/b/a the Schuchardt Law Firm,

)

)

Plaintiff,

)

)

v.

)

Case No. 2:14-cv-0705-CB

)

BARACK H. OBAMA, President of the

)

United States, et al.,

)

)

Defendants.

)

_______________________________________)

DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT

Pursuant to Rule 12 of the Federal Rules of Civil Procedure, Defendants Barack H.

Obama, President of the United States; James. R. Clapper, Director of National Intelligence;

Admiral Michael S. Rogers, Director of the National Security Agency; and James B. Comey,

Director of the Federal Bureau of Investigation; all in their official capacities, respectfully move

the Court to dismiss Plaintiff’s Second Amended Complaint (ECF No. 19). The Second

Amended Complaint should be dismissed under Fed. R. Civ. P. 12(b)(1) for lack of subject-

matter jurisdiction, and under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which

relief can be granted.

The reasons for Defendants’ Motion to Dismiss are set forth in the accompanying Brief in

Support of Defendants’ Motion to Dismiss Plaintiff’s Second Amended Complaint. A proposed

order is filed herewith.

Dated: December 11, 2014

Respectfully submitted,

Case 2:14-cv-00705-CB Document 20 Filed 12/11/14 Page 2 of 2
JOYCE R. BRANDA Acting Assistant Attorney General JOSEPH H. HUNT Director, Federal Programs Branch ANTHONY J. COPPOLINO Deputy Branch Director JAMES J. GILLIGAN Special Litigation Counsel /s/ Marcia Berman MARCIA BERMAN Senior Trial Counsel RODNEY PATTON Trial Attorney JULIA A. BERMAN Trial Attorney U.S Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W., Room 7132 Washington, D.C. 20001 Phone: (202) 514-2205 Fax: (202) 616-8470 Email: Marcia.berman@usdoj.gov Counsel for Defendants
2

Case 2:14-cv-00705-CB Document 20-1 Filed 12/11/14 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

(Pittsburgh Division)

_______________________________________

)

ELLIOTT SCHUCHARDT, individually )

and d/b/a the Schuchardt Law Firm,

)

)

Plaintiff,

)

)

v.

)

Case No. 2:14-cv-0705-CB

)

BARACK H. OBAMA, President of the

)

United States, et al.,

)

)

Defendants.

)

_______________________________________)

[PROPOSED] ORDER

AND NOW, having considered Defendants’ Motion to Dismiss Plaintiff’s Second

Amended Complaint and any response and reply thereto, it is hereby ORDERED that the motion

is GRANTED and Plaintiff’s Second Amended Complaint is DISMISSED.

So ORDERED this __________ day of _______________, 2015.

__________________________________ HON. CATHY BISSOON UNITED STATES DISTRICT JUDGE

Case 2:14-cv-00705-CB Document 21 Filed 12/11/14 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

(Pittsburgh Division)

_______________________________________

)

ELLIOTT SCHUCHARDT, individually )

and d/b/a the Schuchardt Law Firm,

)

)

Plaintiff,

)

)

v.

)

Case No. 2:14-cv-0705-CB

)

BARACK H. OBAMA, President of the )

United States, et al.,

)

)

Defendants.

)

_______________________________________)

BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT

Dated: December 11, 2014

JOYCE R. BRANDA Acting Assistant Attorney General JOSEPH H. HUNT Director, Federal Programs Branch ANTHONY J. COPPOLINO Deputy Branch Director JAMES J. GILLIGAN Special Litigation Counsel MARCIA BERMAN Senior Trial Counsel RODNEY PATTON Trial Attorney JULIA A. BERMAN Trial Attorney

U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W., Room 7132 Washington, D.C. 20001 Phone: (202) 514-2205 Email:marcia.berman@usdoj.gov

Counsel for Defendants

Case 2:14-cv-00705-CB Document 21 Filed 12/11/14 Page 2 of 18
TABLE OF CONTENTS PAGE
TABLE AUTHORITIES ................................................................................................................ ii INTRODUCTION ...........................................................................................................................1 ARGUMENT ...................................................................................................................................1 I. THE SECOND AMENDED COMPLAINT FAILS TO ESTABLISH
PLAINTIFF’S STANDING.................................................................................................1 II. PLAINTIFF’S FIRST AMENDMENT CLAIM SHOULD BE DISMISSED....................6
A. Good-Faith Investigatory Conduct Not Intended to Deter or Punish Protected Speech or Association Does Not Violate the First Amendment .....................................................................................................6
B. Plaintiff’s First Amendment Claim Must Also Be Dismissed for Failure to Allege a Direct and Substantial Burden on his Freedom of Speech or Association ..........................................................................9
CONCLUSION ..............................................................................................................................13
i

Case 2:14-cv-00705-CB Document 21 Filed 12/11/14 Page 3 of 18

TABLE OF AUTHORITIES

CASES

PAGE(S)

ACLU v. Barr, 952 F.2d 457 (D.C. Cir. 1991) ........................................................................................ 6, 7

ACLU v. Clapper, 959 F. Supp. 2d 724 (S.D.N.Y. 2013)....................................................................... passim

Ashcraft v. Iqbal, 556 U.S. 662 (2009)................................................................................................... passim

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)...................................................................................................... 2, 11

Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138 (2013) ............................................................................................ 5, 12, 13

In re Directives, 551 F.3d 1004 (FISC Ct. Rev. 2008) .................................................................................. 8

Fighting Finest, Inc. v. Bratton, 95 F.3d 224 (2d Cir. 1996)................................................................................................ 10

Gordon v. Warren Consol. Bd. of Educ., 706 F.2d 778 (6th Cir. 1983) .......................................................................................... 6, 7

Gross v. Taylor, 1997 WL 535872 (E.D. Pa. Aug. 5, 1997) ....................................................................... 12

Haig v. Agee, 453 U.S. 280 (1981)............................................................................................................ 8

Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349 (3d Cir. 2013)................................................................................................ 5

Holder v. Humanitarian Law Project, 561 U.S. 1 (2010)................................................................................................................ 8

Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) ........................................................................................................ 3

Jewel v. NSA, 673 F.3d 902 (9th Cir. 2011) .......................................................................................... 3, 4

ii

Case 2:14-cv-00705-CB Document 21 Filed 12/11/14 Page 4 of 18
Jewel v. NSA, 2010 WL 235075 (N.D. Cal. Jan. 21, 2010) ....................................................................... 3
Kerchner v. Obama, 612 F.3d 204 (3d Cir. 2010)................................................................................................ 6
Laird v. Tatum, 408 U.S. 1 (1972).................................................................................................... 6, 11, 12
Lance v. Coffman, 549 U.S. 437 (2007)............................................................................................................ 3
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).................................................................................................. 3, 4, 13
Lyng v. UAW, 485 U.S. 360 (1988).......................................................................................................... 10
McNair v. Synapse Group, Inc., 672 F.3d 213 (3d Cir. 2012)................................................................................................ 5
Paton v. La Prade, 524 F.2d 862 (3d Cir. 1975).............................................................................................. 12
Philadelphia Yearly Meeting of Religious Soc'y of Friends v. Tate, 519 F.2d 1335 (3d Cir. 1975)............................................................................................ 12
Redd v. City of Enterprise, 140 F.3d 1378 (11th Cir. 1998) .......................................................................................... 6
Reporters Comm. for Freedom of the Press v. AT&T, 593 F.2d 1030 (D.C. Cir. 1978) ................................................................................ 6, 7, 10
In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235 (3d Cir. 2012)........................................................................................ 1, 3, 4
Tabbaa v. Chertoff, 509 F.3d 89 (2d Cir. 2007)................................................................................................ 10
United States v. Mayer, 503 F.3d 740 (9th Cir. 2007) .......................................................................................... 6, 7
United States v. U.S. Dist. Ct. (Keith), 407 U.S. 297 (1972)........................................................................................................ 6, 9
iii

Case 2:14-cv-00705-CB Document 21 Filed 12/11/14 Page 5 of 18
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)............................................................................................................ 8
Williams v. Price, 25 F. Supp. 2d 623 (W.D. Pa. 1998)................................................................................. 11
Zurcher v. Stanford Daily, 436 U.S. 547 (1978)........................................................................................................ 6, 7
STATUTES 50 U.S.C. § 1801(e) ........................................................................................................................ 8 50 U.S.C. § 1801(h) ...................................................................................................................... 13 50 U.S.C. § 1861(a)(1).................................................................................................................... 8 50 U.S.C. § 1861(a)(2)(B) .............................................................................................................. 7 50 U.S.C. § 1881a(a)....................................................................................................................... 8 50 U.S.C. § 1881a(b) ...................................................................................................................... 8 50 U.S.C. § 1861(g)(2) ................................................................................................................. 13 50 U.S.C. § 1881a(e)..................................................................................................................... 13
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INTRODUCTION Like its forerunners, Plaintiff’s Second Amended Complaint (ECF No. 19) (“2d Am. Compl.”) contains insufficient allegations of injury to establish his standing, and fails to state viable claims for relief. In sum, the Second Amended Complaint reprises the allegations and claims already set forth in Plaintiff’s prior complaints, and to them adds (1) new “background” allegations about NSA intelligence-gathering activities made in another pending case, see 2d Am. Compl. ¶¶ 1-23; (2) class action allegations, id. ¶¶ 76-84; and (3) a new claim alleging violation of the First Amendment, id. ¶¶ 132-39. Plaintiff’s prior claims and allegations remain legally deficient for the reasons explained in the Government’s Brief in Support of Defendants’ Motion to Dismiss (ECF No. 6) (“Gov’t Br.”), and Brief in Support of Defendants’ Motion to Dismiss Plaintiff’s First Amended Complaint (ECF No. 14) (“Gov’t 2d Br.”), which are incorporated herein by reference. For the reasons set forth below, Plaintiff’s new claim and allegations also fail to establish his entitlement to any relief. Accordingly, the Second Amended Complaint must also be dismissed.
ARGUMENT I. THE SECOND AMENDED COMPLAINT FAILS TO ESTABLISH
PLAINTIFF’S STANDING. As the Government demonstrated in support of its motions to dismiss Plaintiff’s two prior iterations of his complaint, Gov’t Br. at 9-12; Gov’t 2d Br. at 5-10, neither contained wellpleaded allegations of fact “that affirmatively and plausibly suggest” that Plaintiff’s online communications have ever been acquired under the NSA’s PRISM program, or that records about his telephone calls have ever been collected under the NSA’s bulk telephony metadata program. See In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243-44 (3d Cir. 2012), citing Ashcraft v. Iqbal, 556 U.S. 662, 678 (2009). Plaintiff predicates his standing to challenge these foreign-intelligence programs on the claim that the
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NSA collects the online communications, and records about the telephone calls, of all Americans, including, therefore, his. But notwithstanding the new wave of “background” allegations he has added to the complaint, 2d Am. Compl. ¶¶ 1-23, Plaintiff still has not plausibly alleged this to be the case.
Principally, Plaintiff embellishes his own allegations with claims made by the plaintiffs (and several of their declarants) in Jewel v. NSA, 08-cv-4373 (JSW) (N.D. Cal.). 2d Am. Compl. ¶¶ 8-23. Jewel is a self-described “challenge[ to] an [alleged] illegal and unconstitutional program of dragnet communications surveillance conducted by the [NSA] and other Defendants ….” Jewel, Complaint for Constitutional & Statutory Violations (ECF No. 1) (“Jewel Compl.”) ¶ 2. Plaintiff incorporates into his complaint the allegation in Jewel that the NSA uses a “nationwide network of … surveillance devices” “to acquire the content of a significant portion of the phone calls, emails … and other [online] communications … of practically every American who uses the phone system or the Internet ….” Id. ¶¶ 8, 9; see 2d Am. Compl. ¶ 15.
But the Jewel complaint (like Plaintiff’s) lacks the “factual enhancement” required to support this “naked assertion,” and it is therefore not entitled to the presumption of truth. Iqbal, 556 U.S. at 678, 681; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554-55 (2007). The Jewel complaint alleges only that the NSA collects Internet-based communications at AT&T facilities located in four states—California, Washington, Georgia, and Missouri—and records, stored in AT&T databases, that pertain to the telecommunications of AT&T customers. Jewel Compl. ¶¶ 55, 68, 82-83. Regardless of whether the Jewel complaint adequately pleads the standing of the plaintiffs there, who allegedly are AT&T subscribers, see id. ¶¶ 20-24, it contains no wellpleaded allegations from which it could plausibly be concluded that the NSA collects information about the telecommunications of “practically every American,” including persons, such as Plaintiff, who are not subscribers to services provided by AT&T. See 2d Am. Compl.
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¶ 87 (listing telecommunications services to which Plaintiff subscribes). Plaintiff’s burden here is to set forth well-pleaded, non-conclusory allegations of fact that affirmatively and plausibly suggest he has suffered a concrete and particularized injury that is traceable to the Government’s alleged conduct. Iqbal, 556 U.S. at 678-79; Schering Plough, 678 F.3d at 243-44. It does him no good simply to repeat the conclusory allegations contained in other litigants’ complaints.
Plaintiff also cites the Ninth Circuit’s decision in Jewel v. NSA, 673 F.3d 902 (9th Cir. 2011), as support for his standing. 2d Am. Compl. ¶ 22. But that decision is of no assistance to Plaintiff because it concerned a standing issue different from the one presented here. In Jewel the district court dismissed the complaint for lack of standing on the basis that the harm alleged by the plaintiffs was not “sufficiently particular to [them],” and was instead “a generalized grievance shared in substantially equal measure by all or a large class of citizens” — an argument the Government had not made. Jewel v. NSA, 2010 WL 235075, at *1 (N.D. Cal. Jan. 21, 2010).1 The Ninth Circuit reversed, holding that the injuries asserted by the Jewel plaintiffs were not “abstract, generalized grievances and instead me[t] the constitutional standing requirement of concrete injury,” because (contrary to the district court’s conclusion) the plaintiffs’ allegations “‘specifically link[ed] [them] to the alleged surveillance activities.’” Jewel, 673 F.3d at 905, 907 (quoting Jewel, 2010 WL 235075, at *5); see id. at 910.
The Government’s motion in this case, however, does not present the question whether Plaintiff’s claimed injury is sufficiently concrete and particularized. The question is whether Plaintiff’s claim that he has been injured at all is supported by sufficient well-pleaded and non-
1 See Hollingsworth v. Perry, 133 S. Ct. 2652, 2662 (2013) (explaining that “raising only a generally available grievance about government—claiming only harm to [the plaintiff’s] and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large”—does not state a concrete and particularized injury that confers Article III standing) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-74 (1992)); Lance v. Coffman, 549 U.S. 437, 439 (2007).
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conclusory allegations of fact to meet the plausibility requirement of Iqbal and Schering Plough. The answer is no, because neither Plaintiff’s own allegations, nor those he has imported from Jewel, plausibly link him to the alleged intelligence-gathering activities he purports to challenge. See Defenders of Wildlife, 504 U.S. at 563 (Article III requires “that the party seeking [judicial] review” of allegedly unlawful conduct “be himself among the injured”).2
The declarations that Plaintiff cites from the Jewel case also fail to establish that critical link, as none of them supports the allegation that the NSA collects information about the telecommunications of all Americans. Plaintiff cites the statement of former NSA employee William Binney that, following the September 11, 2001, terrorist attacks, he “learned” that the NSA had begun using a “data-min[ing] program” to “collect and analyze domestic e-mail, without a warrant.” 2d Am. Compl. ¶¶ 9-12, 19; see Jewel, Declaration of William E. Binney (ECF No. 88) (“Binney Decl.”) ¶¶ 5-6. But nothing in these allegations—which are based on hearsay (see Binney Decl. ¶ 5)—even purports to describe the scope or scale of these supposed surveillance activities, or supports the conclusion that they involved collection of information about all Americans’ communications.
In addition to the Binney Declaration, Plaintiff cites the declarations of two other former NSA employees, Jewel, Declaration of J. Kirk Wiebe (ECF No. 86) (“Wiebe Decl.”); id., Declaration of Thomas A. Drake (ECF No. 87) (“Drake Decl.”); see 2d Am. Compl. ¶¶ 20, 21, who express agreement with Mr. Binney’s assertion that the NSA today “has the capability to seize and store most electronic communications passing through its U.S. intercept centers,” which Mr. Binney “estimate[s]” to number between ten and twenty. Binney Decl. ¶¶ 7-9; Wiebe
2 Whether the Jewel plaintiffs can prove their standing as a matter of fact, and can do so without risking or requiring impermissible disclosures of national security information protected by the state secrets privilege, remains the subject of ongoing proceedings in that case. See, e.g., Jewel, Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ. Judg. & Cross-Mot. for Partial Summ. Judg. on Pls.’ Fourth Am. Claim (ECF No. 286-6) at 20-23.
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Decl. ¶ 8; Drake Decl. ¶ 8. They also agree with Mr. Binney’s conclusion, based on media reports about the anticipated capacity of new NSA digital storage facilities, that the NSA “is, in fact, storing all [the electronic communications] that they are collecting.” Binney Decl. ¶¶ 1113; Wiebe Decl. ¶ 9; Drake Decl. ¶ 9. But by the time these gentlemen executed their declarations in June 2012, they had not been employed by the NSA for years—in the cases of Messrs. Binney and Wiebe, for more than a decade—see Binney Decl. ¶ 6; Wiebe Decl. Exh. A at 2; Drake Decl. Exh. A at 2, and could only speculate about the nature, scope, and focus of the NSA’s current intelligence-gathering activities. The Supreme Court has made clear that speculation about the scope and operation of the Government’s foreign-intelligence surveillance programs will not support a finding, for standing purposes, that a litigant has been a subject of such surveillance. Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147-51 (2013). Moreover, even assuming the NSA were “stor[ing] most electronic communications passing through its U.S. intercept centers,” nothing in the Binney, Wiebe, and Drake Declarations even purports to suggest what fraction of Americans’ electronic communications passes through the 10-20 “intercept centers” whose existence Mr. Binney posits, much less that they intercept the communications of all Americans, including Plaintiff’s.3
Notwithstanding multiple attempts, Plaintiff still has not set forth well-pleaded, nonconclusory allegations from which it could plausibly be concluded that the NSA intelligencegathering activities he purports to challenge involve the collection of information about all Americans’ communications, nor any other non-speculative basis on which it could plausibly be concluded that these activities involve collection of information about his communications.
3 Plaintiff’s class-action allegations, 2d Am. Compl. ¶¶ 76-84, are immaterial to the standing analysis. Plaintiff must establish his standing regardless of whether he seeks to litigate his claims individually or on behalf of a class. Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 360-61 (3d Cir. 2013); McNair v. Synapse Group, Inc., 672 F.3d 213, 223-24 (3d Cir. 2012).
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Plaintiff therefore cannot establish his Article III standing, and this case must be dismissed for lack of subject matter jurisdiction. Kerchner v. Obama, 612 F.3d 204, 207 (3d Cir. 2010). II. PLAINTIFF’S FIRST AMENDMENT CLAIM SHOULD BE DISMISSED.
Plaintiff’s First Amendment claim, 2d Am. Compl. ¶¶ 134-39, asserts that the challenged NSA intelligence-gathering programs violate his freedom of speech and association. Under long accepted principles, discussed below, Plaintiff’s First Amendment claim perishes in the wake of his Fourth Amendment claim, which fails for the reasons discussed in the Government’s prior briefs. See Gov’t Br. at 12-19; Gov’t 2d Br. at 10-19. Alternatively, even if the Court were to hold that Plaintiff’s First Amendment claim could survive dismissal of his Fourth Amendment claim, his allegations would still be insufficient to establish an entitlement to relief for violation of his First Amendment rights.
A. Good-Faith Investigatory Conduct Not Intended to Deter or Punish Protected Speech or Association Does Not Violate the First Amendment.
Recognizing the need to accommodate the Government’s interests where prevention of crime, or, even more imperatively, potential threats to national security are concerned, see United States v. U.S. Dist. Ct. (Keith), 407 U.S. 297, 313 (1972), courts distinguish for purposes of First Amendment analysis between government investigations that may have an incidental effect of deterring First Amendment activity, and concrete government action of a regulatory, proscriptive, or compulsory nature that is directed against individuals based on their expressive or associational activities. See, e.g., Zurcher v. Stanford Daily, 436 U.S. 547, 564 (1978); Laird v. Tatum, 408 U.S. 1, 11 (1972); United States v. Mayer, 503 F.3d 740, 747-53 (9th Cir. 2007); Redd v. City of Enter., 140 F.3d 1378, 1383-84 (11th Cir. 1998); Gordon v. Warren Consol. Bd. of Educ., 706 F.2d 778, 781 n.3 (6th Cir. 1983) (collecting cases); ACLU v. Barr, 952 F.2d 457, 471 (D.C. Cir. 1991); Reporters Comm. for Freedom of the Press v. AT&T, 593 F.2d 1030, 1051-
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53 (D.C. Cir. 1978); [Redacted], Dkt. No. PR/TT [redacted], Opinion and Order, 66-69 (F.I.S.C. [date redacted]) (attached hereto as Exhibit A).
Accordingly, good faith governmental investigations conducted with “scrupulous” adherence, Zurcher, 436 U.S. at 564, to Fourth Amendment requirements, without the purpose of deterring or penalizing protected expression or association, do not violate the First Amendment. See Reporters Comm., 593 F.2d at 1051-53; see also Gordon, 706 F.2d at 781 n.3 (“[S]urveillance consistent with Fourth Amendment protections . . . does not violate First Amendment rights, even though it may be directed at communicative or associative activities.”); ACLU v. Clapper, 959 F. Supp. 2d 724, 753 (S.D.N.Y. 2013) (concluding that “[t]he Government’s argument [on this point] is well-supported”).4
Here, Plaintiff does not even purport to allege that the challenged NSA programs are directed against him (or any other individuals) based on expressive or associational activities. Indeed, as the court in ACLU recognized, the express terms of Section 215 (under which the bulk collection of telephony metadata is authorized) prohibit the statute’s use for purposes of investigations “conducted ‘solely on the basis of activities that are protected by the first amendment,’” 959 F. Supp. 2d at 753 (quoting 50 U.S.C. § 1861(a)(2)(B)), a restriction the FISC takes into account and reinforces each time it re-authorizes the bulk telephony metadata program. See September 11, 2014, FISC Primary Order (attached hereto as Exhibit B) at 2; id. at 7 n.6, 9 n.7 (prohibiting queries of the metadata using selectors chosen “solely on the basis of activities
4 The Ninth Circuit has “clarif[ied] that good faith . . . requires” that the “government investigation” be “justified by a legitimate” purpose that “outweighs any harm to First Amendment interests.” Mayer, 503 U.S. at 753; see also Barr, 952 F.2d at 471 (no “legitimate purpose” when “surveill[ing] with the intent of deterring membership in . . . an association engaged in lawful activities”). For the reasons set forth in the text, both the bulk telephony metadata program and the PRISM collection authorized by Section 702 surmount this low bar.
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that are protected by the First Amendment”).5 And FISA Section 702, under which PRISM collection is conducted, authorizes targeting only of non-U.S. persons reasonably believed to be located abroad, 50 U.S.C. § 1881a(b), that is, of persons who do not have First Amendment rights to begin with, see United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990) (“[A]liens receive constitutional protections [only] when they have come within the territory of the United States and developed substantial connections with this country.”).
Indeed, Plaintiff makes no claim that the bulk telephony metadata program is conducted for any purpose other than the statutorily authorized objective of obtaining foreign intelligence information to protect against foreign terrorist attacks, see 50 U.S.C. § 1861(a)(1); September 11, 2014, Primary Order at 2. Nor has Plaintiff alleged that targeted PRISM collection of non-U.S. person communications is conducted for any purpose other than the authorized acquisition of foreign intelligence information to protect the Nation against such dangers as, for example, international terrorism, the international proliferation of weapons of mass destruction, and the clandestine intelligence activities of foreign powers, see 50 U.S.C. § 1801(e); id. § 1881a(a). These are not only legitimate Government interests, they represent paramount national security concerns. Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010) (“[T]he Government’s interest in combating terrorism is an urgent objective of the highest order.”); Haig v. Agee, 453 U.S. 280, 307 (1981) (“[N]o governmental interest is more compelling than the security of the Nation.”); In re Directives, 551 F.3d 1004, 1012 (FISC Ct. Rev. 2008) (national-security interest in conducting acquisitions pursuant to Section 702 “is of the highest order of magnitude”).
5 Although Plaintiff’s allegation that the bulk telephony metadata program collects “all ‘call detail records’ for calls made wholly within the United States,” 2d Am. Compl. ¶ 33, is incorrect, see Gov’t 2d Br. at 9, it underscores the point that Plaintiff does not and, due to the program’s scale, cannot suggest that the program singles him out in any way, let alone on the basis of his expressive or associational activity.
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Because Plaintiff has not plausibly alleged that these intelligence-gathering programs
violate his Fourth Amendment rights, see Gov’t Br. at 12-19; Gov’t 2d Br. at 10-19, nor alleged
at all (plausibly or otherwise) that the purposes of these programs include the suppression of free
expression or association, supra, at 7-8, he has failed to state a claim that either of the challenged
programs violates the First Amendment.6
B. Plaintiff’s First Amendment Claim Must Also Be Dismissed for Failure to Allege a Direct and Substantial Burden on his Freedom of Speech or Association.
Even if the Court concluded that Plaintiff’s First Amendment claim could in theory
survive dismissal of his Fourth Amendment claim, his First Amendment claim would still fail for
the independent reason that he has not alleged a direct and substantial burden on his freedom of
speech or association. Rather, Plaintiff’s allegations amount at most to a subjective “chill” on
his First Amendment freedoms, arising solely from speculative fears that are based on his
(mis)understanding of the challenged NSA programs rather than their actual operation. These
misplaced fears are an insufficient basis on which to bring a First Amendment claim.
“[C]onsonant with the First Amendment,” the Government “may engage” in conduct that
“incidentally inhibits protected forms of association,” which, though it may “make it more
6 The Supreme Court’s decision in Keith is not to the contrary. In that case, the Court addressed the constitutionality of warrantless surveillance targeting “domestic organizations” that sought to “attack and subvert” the Government. Keith, 407 U.S. at 299-300. In finding that prior judicial approval for such surveillance was necessary, id. at 321, the Court expressed particular concern that “domestic security surveillance” might infringe on “constitutionally protected privacy of speech” “because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent.” Id. at 320. The concerns that animated the Keith Court are not implicated by the telephony metadata program or PRISM collection, because, as explained above, Sections 215 and 702 authorize only the collection of foreign intelligence, and their terms prohibit, either expressly, or in effect, the investigation of persons solely on the basis of activities protected by the First Amendment. See Keith, 407 U.S. at 321-22 (“emphasiz[ing]” that the “scope of [its] decision” addressed only the “domestic aspects of national security” and did “not address[]” the “issues which may be involved with respect to activities of foreign powers or their agents”).
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difficult for individuals to exercise their freedom of association, this consequence does not, without more, result in a violation of the First Amendment.” Fighting Finest, Inc. v. Bratton, 95 F.3d 224, 228 (2d Cir. 1996) (citing Lyng v. UAW, 485 U.S. 360, 366 (1988)); see also Reporters Comm., 593 F.2d at 1052 (“Not every Government action that affects, has an impact on, or indeed inhibits First Amendment activity constitutes the kind of ‘abridgement’ condemned by the First Amendment.”). “Mere incidental burdens on the right to associate do not violate the First Amendment.” Tabbaa v. Chertoff, 509 F.3d 89, 101 (2d Cir. 2007); ACLU, 959 F. Supp. 2d at 753 (stating same in finding that the “bulk [telephony] metadata collection does not burden First Amendment rights substantially”). Rather, “[t]o be cognizable, the interference with associational rights must be ‘direct and substantial’ or ‘significant.’” Fighting Finest, Inc., 95 F.3d at 228 (quoting Lyng, 485 U.S. at 366, 367 & n.5).
Plaintiff’s allegations of a violation of his free-speech and associational rights do not meet this standard. Plaintiff claims that he is “no longer able to freely express himself by means of e-mail or in documents stored by means of internet cloud services because the Defendants are collecting and data-mining such documents.” 2d Am. Compl. ¶ 136. He maintains also that the Defendants have “interfered with [his] ability to freely associate with other persons” because the Defendants have obtained “phone and internet data showing with whom [he] associates.” Id. ¶ 138. These allegations fail to state a claim that the Government has burdened Plaintiff’s First Amendment rights at all, much less in a “direct” and “substantial” manner, first because they are predicated on the assumption that the challenged NSA intelligence programs involve interception of Plaintiff’s electronic communications, and acquisition of metadata associated with Plaintiff’s telephone calls. As discussed above and in the Government’s prior briefs, Plaintiff has not
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plausibly alleged that to be the case. See supra, at 2-5; Gov’t Br. at 9-12; Gov’t 2d Br. at 5-10.7
Plaintiff’s “bare assertions,” Iqbal, 556 U.S. at 681, in his First Amendment claim that the
Government is “collecting and data-mining” his online documents, and has obtained “phone and
internet data showing with whom [he] associates,’” 2d Am. Compl. ¶¶ 136, 138, are just as
unaccompanied by “factual matter” raising them “above the speculative level” as are the similar
“background” allegations set forth in his complaint. Twombly, 550 U.S. at 555-56.8
Second, claims that Plaintiff “is no longer able to freely express himself” or “freely
associate with other persons,” simply because of a fear that the Government might obtain or
“data-mine” information about his communications, are insufficient to state a claim for direct
and substantial interference with his First Amendment rights. It is true that a “constitutional
violation[] may arise from the deterrent, or ‘chilling,’ effect” of government action that “fall[s]
short of a direct prohibition against the exercise of First Amendment rights.” Laird, 408 U.S.
at 11. But the alleged chill on Plaintiff’s First Amendment freedoms is attributable to his own
speculative fears of surveillance, rather than being plausibly connected to the challenged
7 Even presuming that the Government has collected metadata associated with Plaintiff’s telephone calls under the bulk telephony metadata program, under the FISC’s orders NSA analysts may only review those records within two hops of selectors (e.g., telephone numbers) that the FISC has determined are reasonably suspected of association with terrorist organizations the FISC has approved for targeting. See September 11 Primary Order at 2, 7-8; Gov’t 2d Br. at 3, 8-10. Plaintiff has made no plausible allegation that records of his calls are among the “very small percentage” of the records that are ever reviewed by NSA analysts under this standard. See ACLU, 959 F. Supp. 2d at 735. Hence, the Second Amended Complaint contains no “factual matter” to support Plaintiff’s assertion that the Government learns “with whom [he] associates,” 2d Am. Compl. ¶ 138, from bulk telephony metadata collected by the NSA. Twombly, 550 U.S. at 555-56; see Iqbal, 556 U.S. at 681.
8 For this reason, Williams v. Price, 25 F. Supp. 2d 623 (W.D. Pa. 1998), provides no comfort to Plaintiff. In that case, the court found that the claimed First Amendment right of the plaintiff prisoners to confer confidentially with their counsel was chilled by the presence of correctional officers, stationed outside the meeting room, who could hear what the inmates and counsel were saying inside. Id. at 624-25, 630. Here, in contrast, Plaintiff has not plausibly alleged that his online communications, or telephony metadata associated with his calls, have been obtained or reviewed by the Government.
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intelligence programs, because, as we have shown, the Second Amended Complaint contains no
plausible allegations that information about Plaintiff’s communications has been obtained,
reviewed, or used in any fashion under PRISM or the telephony metadata program. See supra, at
2-5; Gov’t Br. at 9-12; Gov’t 2d Br. at 5-8. “Allegations of a subjective chill” arising from an
“individual’s knowledge” of the “mere existence, without more, of a governmental investigative
and data-gathering activity” “are not an adequate substitute for a claim of specific present
objective harm or a threat of specific future harm.” Laird, 408 U.S. at 10, 11, 13-14.9 Such
allegations are insufficient even to confer standing, much less to state a claim for a First
Amendment violation. See Amnesty Int’l, USA, 133 S. Ct. at 1152 (and cases cited therein);
ACLU, 959 F. Supp. 2d at 754 (“Fear that telephony metadata relating to [plaintiffs’ calls] will
be queried or reviewed or further investigated ‘relies on a highly attenuated chain of
possibilities,’” and that “speculative fear” can neither “create standing” nor “establish a violation
of an individual’s First Amendment rights.”) (quoting Amnesty Int’l, 133 S. Ct. at 1148, 1152).10
9 See also Paton v. La Prade, 524 F.2d 862, 874 (3d Cir. 1975) (teacher who designed a course taken by a student, and who claimed that a resulting FBI investigation of the student “constituted an ‘inhibiting force’” on his free expression, suffered only a non-cognizable “subjective chill”); Philadelphia Yearly Meeting of Religious Soc’y of Friends v. Tate, 519 F.2d 1335, 1137-39 (3d Cir. 1975) (plaintiffs suffered only “subjective chill” of First Amendment rights arising from police creation of “dossiers” about them based on information gathered from “public meetings,” which the police shared with “other law enforcement agencies”; cognizable injury occurred only when police shared dossiers with public or “broadcast” on “network television” the names of groups and individuals “on whom such files were kept”); Gross v. Taylor, 1997 WL 535872, at *16 (E.D. Pa. Aug. 5, 1997) (“vague charge of chilled expression” insufficient to “sustain” a “First Amendment claim”).
10 Plaintiff’s allegation he could not consult with certain persons by e-mail in preparing his Second Amended Complaint, because “the Defendants could provide such communications directly to the lawyers representing the [G]overnment in this lawsuit,” 2d Am. Compl. ¶ 137, provides no support for his First Amendment claim. This allegation is too speculative to satisfy either the requirement of actual or imminent injury, see Amnesty Int’l, supra, or the plausibility standard under Iqbal. That is all the more so considering that both Section 215 and Section 702 require the Government to adopt minimization procedures “to prohibit the dissemination …of nonpublicly available information concerning unconsenting United States persons” except as
(footnote continued on next page) 12

Case 2:14-cv-00705-CB Document 21 Filed 12/11/14 Page 18 of 18

Accordingly, Plaintiff’s First Amendment claim, like the other causes of action he has

attempted to plead, states no violation of legal right entitling him to relief.

CONCLUSION

For the reasons stated above, the Second Amended Complaint should be dismissed.

Dated: December 11, 2014

Respectfully submitted,

JOYCE R. BRANDA Acting Assistant Attorney General JOSEPH H. HUNT Director, Federal Programs Branch ANTHONY J. COPPOLINO Deputy Branch Director JAMES J. GILLIGAN Special Litigation Counsel

/s/ Marcia Berman MARCIA BERMAN Senior Trial Counsel RODNEY PATTON Trial Attorney JULIA A. BERMAN Trial Attorney U.S Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W., Rm. 7132 Washington, D.C. 20001 Phone: (202) 514-2205 Fax: (202) 616-8470 Email: Marcia.Berman@usdoj.gov

Counsel for Defendants

(footnote continued from previous page) “consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information.” 50 U.S.C. §§ 1861(g)(2), 1881a(e); see id. § 1801(h). Also unavailing is Plaintiff’s allegation that “it is possible that future American governments will use” information obtained under the challenged NSA intelligence programs “to blackmail or target political enemies.” 2d Am. Compl. ¶ 139. Again, this type of “allegation[] of possible future injury [is] not sufficient” to confer standing, much less support a claim for the violation of Plaintiff’s First Amendment rights, Amnesty Int’l USA, 133 S. Ct. at 1147, especially because Plaintiff does not even allege that he might be among the unidentified “political enemies” whom the Government could hypothetically “target.” See Defenders of Wildlife, 504 U.S. at 563.
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Case 2:14-cv-00705-CB Document 21-1 Filed 12/11/14 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

(Pittsburgh Division)

_______________________________________

)

ELLIOTT SCHUCHARDT, individually )

and d/b/a the Schuchardt Law Firm,

)

)

Plaintiff,

)

)

v.

)

Case No. 2:14-cv-0705-CB

)

BARACK H. OBAMA, President of the

)

United States, et al.,

)

)

Defendants.

)

_______________________________________)

DECLARATION OF MARCIA BERMAN IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT

I, Marcia Berman, hereby declare:

1. I am a Senior Trial Counsel for the United States Department of Justice, Civil

Division, Federal Programs Branch, and one of the attorneys of record for defendants in the

above-captioned matter. The statements made herein are based on my personal knowledge, and

on information made available to me in the course of my duties and responsibilities as counsel

for defendants in this case.

2. Filed with this declaration, as Exhibits A and B in support of Defendants’ Motion

to Dismiss Plaintiff’s Second Amended Complaint, are true and correct copies of the following

documents:

a. Exhibit A, [Redacted], Dkt. No. PR/TT [redacted], Opinion and Order, 66-69

(F.I.S.C. [date redacted]);

b. Exhibit B, September 11, 2014, FISC Primary Order.

Case 2:14-cv-00705-CB Document 21-1 Filed 12/11/14 Page 2 of 2 I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on December 11, 2014, at Washington, D.C.
/s/ Marcia Berman MARCIA BERMAN Senior Trial Counsel Marcia.berman@usdoj.gov U.S Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W., Room 7132 Washington, D.C. 20001 Phone: (202) 514-2205 Fax: (202) 616-8470
2

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EXHIBIT A

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EXHIBIT B

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Declassified by James R. Clapper, DNI, on October 17, 2014

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Declassified by James R. Clapper, DNI, on October 17, 2014

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Declassified by James R. Clapper, DNI, on October 17, 2014

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Declassified by James R. Clapper, DNI, on October 17, 2014

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Declassified by James R. Clapper, DNI, on October 17, 2014

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Declassified by James R. Clapper, DNI, on October 17, 2014

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Declassified by James R. Clapper, DNI, on October 17, 2014

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Declassified by James R. Clapper, DNI, on October 17, 2014

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Declassified by James R. Clapper, DNI, on October 17, 2014

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Declassified by James R. Clapper, DNI, on October 17, 2014

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Declassified by James R. Clapper, DNI, on October 17, 2014

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Declassified by James R. Clapper, DNI, on October 17, 2014

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Declassified by James R. Clapper, DNI, on October 17, 2014

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Declassified by James R. Clapper, DNI, on October 17, 2014

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Declassified by James R. Clapper, DNI, on October 17, 2014

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Declassified by James R. Clapper, DNI, on October 17, 2014

 
 Case 2:14-cv-00705-CB Document 25 Filed 01/07/15 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ELLIOTT J. SCHUCHARDT, individually and doing business as the Schuchardt Law Firm,

CIVIL DIVISION Case No. 2:14-cv-00705-CB

Plaintiff, v.

BARACK H. OBAMA, as President of the United States, et al.,

Defendants.

MOTION FOR PRELIMINARY INJUNCTION The Plaintiff, Elliott Schuchardt, files this motion for a preliminary injunction. In support hereof, the Plaintiff states as follows:
Relief Requested 1. The Plaintiff respectfully moves for a preliminary injunction for the reasons set forth in the Plaintiff's accompanying memorandum of law. A copy of such brief is incorporated by reference herein. 2. As explained in such brief, at least one other federal court has granted a preliminary injunction in a case challenging the government’s bulk collection of telephony metadata. See Klayman v. Obama, 957 F. Supp. 2d 1, 27, 2013 U.S. Dist. LEXIS 176925, 67-68, 2013 WL 6571596 (D.D.C. 2013). 3. The facts of this case are far more egregious. In this case, the Plaintiff contends that the Defendants are collecting not just "call detail" records, but the actual intimate content contained in the nation’s e-mail.

Case 2:14-cv-00705-CB Document 25 Filed 01/07/15 Page 2 of 4
4. The Defendants are -- by definition -- incapable of policing their own use of such vast information. This is because one branch of government cannot effectively review, or check, its own conduct. The key to the data must be held by a third party, such as the courts.
5. If the executive branch continues to hold the key to this massive database of private information, the consequences are foreseeable and disastrous: Political leaders will want to search the database for information about their political opponents. Employees of the NSA will access the records of major law firms and investment banks for inside information concerning investments. Government employees will use the database to "cyberstalk" the objects of their affection. The trade secrets of the Fortune 500 are at risk.
6. The dangers posed by the Defendants' conduct are real. This is why political wiretapping was taken so seriously a generation ago, during the Watergate scandal. This is why some of our highest-ranking public employees have sacrificed their careers, and risked their liberty, to bring this matter to the attention of the Court.
WHEREFORE, for the reasons set forth above, the Plaintiff respectfully requests that the Court approve the accompanying order (a) barring the Defendants from collecting the Plaintiff’s e-mail, web queries, and phone metadata, (b) directing the Defendants to destroy any such information about the Plaintiff in their possession, and (c) prohibiting the Defendants from querying data currently in their possession using e-mail addresses or phone numbers associated with the Plaintiff.
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Case 2:14-cv-00705-CB Document 25 Filed 01/07/15 Page 3 of 4 Respectfully submitted, By: /s/ Elliott J. Schuchardt Elliott Schuchardt PA I.D. #78911 SCHUCHARDT LAW FIRM U.S. Steel Tower, Suite 660 600 Grant Street Pittsburgh, PA 15219 Phone: (412) 414-5138 E-mail: elliott016@gmail.com
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Case 2:14-cv-00705-CB Document 25 Filed 01/07/15 Page 4 of 4
CERTIFICATE OF SERVICE I, Elliott Schuchardt, hereby certify that I served a true and correct copy of the foregoing motion on the following person on this 7th day of January 2015 by means of the Court’s CM / ECF electronic filing system: Marcia Berman, Esq. United States Dept. of Justice marcia.berman@usdoj.gov Counsel for the Defendants
/s/ Elliott Schuchardt Elliott Schuchardt

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ELLIOTT SCHUCHARDT,
Plaintiff, v.
BARACK H. OBAMA, et al.,
Defendants.

)

)

)

)

Civil Action No. 14-705

)

)

Judge Cathy Bissoon

)

)

)

)

MEMORANDUM AND ORDER I. MEMORANDUM
Defendants’ Motion to Dismiss (Doc. 20) will be granted.

INTRODUCTION This action is one of several lawsuits arising from recent public revelations that the
United States government, through the National Security Agency (“NSA”), and in conjunction with various telecommunications and internet companies, has been collecting data concerning the telephone and internet activities of American citizens located within the United States. The Plaintiff, Elliott J. Schuchardt (“Schuchardt”), alleges that the NSA’s bulk data collection programs violate the Fourth Amendment to the United States Constitution by allowing the government to seize and search records related to the telephone and internet activities of ordinary American citizens without demonstrating probable cause. He also asserts claims based on the First Amendment, the Foreign Intelligence Surveillance Act (“FISA”) and Pennsylvania common law. He seeks declaratory and injunctive relief as well as civil liability pursuant to 18 U.S.C. § 1810.

BACKGROUND In order to properly contextualize the factual claims in this litigation, a brief overview of
several pertinent statutes is warranted. In 1978, Congress enacted the Foreign Intelligence Surveillance Act, 50 U.S.C. §§1801 et seq. (“FISA”), to “authorize and regulate certain governmental electronic surveillance of communications for foreign intelligence purposes.” Clapper v. Amnesty Int’l USA, -- U.S. --, 133 S. Ct. 1138, 1143 (2013). FISA provided a procedure for the federal government to legally obtain domestic electronic surveillance related to foreign targets, see 50 U.S.C. §§ 1804(a)(3) & 1805(a)(2), and created an Article III court – the Foreign Intelligence Surveillance Court (“FISC”) – with jurisdiction “to hear applications for and grant orders approving” such surveillance. 50 U.S.C. §1803(a)(1).
In the wake of the terrorist attacks of September 11, 2011, Congress passed the USA PATRIOT Act, Pub. L. No. 107-56, § 215, which, inter alia, empowered the FBI to seek authorization from the FISC to “require[e] the production of any tangible things (including books, records, papers, documents, and other items) for an investigation . . . to protect against international terrorism.” 50 U.S.C. 1861(a)(1). Since 2006, the government has relied on this provision “to operate a program that has come to be called ‘bulk data collection,’ namely, the collection, in bulk, of call records produced by telephone companies containing ‘telephony metadata’ – the telephone numbers dialed (incoming and outgoing), times, and durations of calls.” See Obama v. Klayman, -- F.3d --, 2015 WL 5058403 (D.C. Cir. Aug. 28, 2015) (“Klayman II”).
In 2008, Congress amended FISA by way of the FISA Amendments Act (“FAA”), Pub. L. No. 110-261 (2008). The pertinent FAA provision, Section 702 of FISA, 50 U.S.C. § 1881a, “supplement[ed] pre-existing FISA authority by creating a new framework under which
2

the Government may seek the FISC’s authorization of certain foreign intelligence surveillance targeting . . . non-U.S. persons located abroad.” Amnesty Int’l, 133 S. Ct. at 1144. The government relies upon the authority granted by Section 702 to collect internet data and communications through a program called “PRISM.” 2d Am. Compl. (Doc. 19) ¶¶ 33, 35.
American citizens first learned of the government’s bulk data collection programs through a series of articles published in The Guardian, a British newspaper, in June 2013. Id. Each article relied on leaked documents provided by a former NSA government contractor, Edward Snowden. Id. ¶¶ 24-27, 33-39. The first of these articles, published on June 5, 2013, revealed a leaked order from the FISC directing Verizon Business Network Services, Inc. (“Verizon Business”) to produce “call detail records or ‘telephony metadata’” to the NSA for all telephone calls made through its systems within the United States (including entirely-domestic calls). Id. ¶ 33. Shortly thereafter, the government acknowledged that the FISC order was genuine and that it was part of a broader program of bulk collection of telephone metadata. Id. ¶ 34; ACLU v. Clapper, 785 F.3d 787, 796 (2d Cir. 2015).
The following day, June 6, 2013, The Guardian published a second article detailing the manner in which the PRISM collection program was used to intercept, access and store e-mail and other internet data created by United States citizens using large internet companies, such as Yahoo, Google, Facebook, Dropbox and Apple. Id. ¶¶ 35-38. According to the leaked documents, the government began collecting information from, inter alia, Yahoo on March 12, 2008; from Google on January 14, 2009; from Facebook on June 3, 2009; and from Apple in October 2012. Id. ¶ 39. Discussing the scope of the government’s data collection abilities, Snowden, in a series of public statements and interviews, averred that he could search, seize,
3

and read anyone’s electronic communications at any time from his desk during his time working with the NSA. Id. ¶¶ 45-46.
Since those revelations, several former NSA employees and whistleblowers have stepped forward to supply further details concerning the scope and breadth of the government’s data collection programs.1 William Binney, a former senior employee of the NSA, stated that the NSA used a computer program to collect and search domestic internet traffic, a process known as “data-mining.” Id. ¶¶ 9, 19. Mark Klein, a former AT&T technician, revealed that the NSA was copying e-mail communications on AT&T’s network by means of a secret facility set up in San Francisco. Id. ¶ 13. Thomas Drake, another NSA employee, asserted that the NSA has been, or may be, obtaining the ability to seize and store “most electronic communications.” Id. ¶ 20. A third former NSA employee, Kirk Wiebe, corroborated the allegations made by Drake and Binney. Id. ¶ 21.
Based on the averments above, as well as various public interviews conducted by Snowden, Schuchardt alleges that the NSA is collecting and storing “massive quantities of e-mail and other data created by United States citizens.” Id. ¶ 36. Because he utilizes several major internet and telecommunications companies – including Gmail, Google, Yahoo, Dropbox, Facebook and Verizon Wireless – Schuchardt contends that the government must, therefore, be “unlawfully intercepting, accessing, monitoring and/or storing the private communications of the Plaintiff, made or stored through such services.” Id. ¶¶ 86-87. This presumption underpins each of Plaintiff’s claims, and he purports to represent a “nationwide class” of “American citizens” similarly-situated. Id. at ¶ 76.
1 Schuchardt has borrowed the majority of his allegations from affidavits filed in another lawsuit, Jewel v. N.S.A., 2015 WL 545925 (N.D. Cal. Feb. 10, 2015).
4

ANALYSIS Resolution of the instant Motion turns entirely on the issue of standing. In order to
establish standing to sue, a plaintiff must show that he has suffered a “concrete and particularized” injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). For an injury to be sufficiently particularized, the plaintiff must allege “such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) (internal quotations omitted) (emphasis in original). An abstract, generalized grievance that is “common [to] all members of the public” will not suffice. Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 220 (1974).
The crux of the government’s Motion is that Schuchardt lacks standing because he has not plausibly alleged that the government has ever collected any of his communications. In other words, even if data-collection has occurred, Schuchardt has provided no facts demonstrating that he is “among the injured.” Lujan, 504 U.S. at 563.
Several recent decisions have addressed the issue of standing in the context of the government’s bulk data-collection programs. In Amnesty International v. Clapper, the United States Supreme Court addressed a challenge to the constitutionality of Section 702 brought by a group of plaintiffs who alleged that their communications were likely among those intercepted because they regularly communicated with foreign persons who were probable targets of government surveillance. Amnesty Int’l., 133 S. Ct. at 1145. Although the plaintiffs had no specific knowledge as to how the government’s targeting practices worked, they provided evidence that: they had engaged in communications that fell within the purview of Section 702; that the government had a strong motive to intercept those communications because of the subject matter and identities involved; that the government had already intercepted large
5

numbers of calls and emails involving a specific individual who communicated regularly with the plaintiffs; and that the government had the capacity to intercept the aforementioned communications. Id. at 1157-59. The Court held that these allegations were inadequate to establish standing because they relied on a “speculative chain of possibilities” and displayed “no actual knowledge” as to whether the plaintiffs ever were specifically targeted. Id. at 1148.2
In ACLU v. Clapper, a group of current and former Verizon Business customers challenged the government’s data collection program based on several FISC orders that had been declassified by the government. Clapper, 785 F.3d 787, 796 (2d Cir. 2015). The Court of Appeals for the Second Circuit concluded that the plaintiffs had standing because the government’s “own orders demonstrate[ed] that [plaintiffs’] call records are indeed among those collected as part of the telephone metadata program.” Id. at 801. The court observed:
[Plaintiffs’] alleged injury requires no speculation whatsoever as to how events will unfold under § 215 – [plaintiffs’] records (among those of numerous others) have been targeted for seizure by the government; the government has used the challenged statute to effect that seizure; the orders have been approved by the FISC; and the records have been collected.
Id. at 801-802. The Court of Appeals for the Ninth Circuit reached the same conclusion in Jewel v.
National Security Agency, a challenge to the NSA’s bulk data-collection program brought by a group of current and former subscribers to AT&T’s telephone and/or internet services. Jewel v. National Security Agency, 673 F.3d 902, 906 (9th Cir. 2011). The plaintiffs relied heavily on allegations from a former AT&T employee that the government had created a secure room at an AT&T facility in San Francisco for the purpose of monitoring the internet and telephone
2 Unlike the instant case, Amnesty International did not involve allegations that the government has relied on Section 702 to collect and store entirely-domestic communications.
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activities of all AT&T customers. Id. The named plaintiff, Jewel, alleged that she was specifically affected because AT&T “diverted all of her internet traffic into ‘SG3 Secure Rooms’ in AT&T facilities all over the country, including AT&T’s Folsom Street facility in San Francisco, ‘and information of interest [was] transmitted from the equipment in the SG3 Secure Rooms to the NSA based on rules programmed by the NSA.’” Id. The district court dismissed on standing grounds, concluding that the complaint lacked “allegations specifically linking any of the plaintiffs to the alleged surveillance activities.” Id. at 907.
The Court of Appeals for the Ninth Circuit reversed, finding that Jewel had alleged a sufficiently concrete and particularized injury based on her “highly specific” allegations concerning the operation of the alleged surveillance operation. The court noted that the complaint “described in detail the particular electronic communications equipment used (‘4ESS switch’ and ‘WorldNet Internet Room’) at the particular AT&T facility (Folsom Street, San Francisco) where Jewel’s personal and private communications were allegedly intercepted in a secret room known as the ‘SG3 Secure Room.’” Id. at 910 (internal quotations omitted). The court emphasized that the specificity of Jewel’s allegations heavily influenced its decision:
Significantly, Jewel alleged with particularity that her communications were part of the dragnet. The complaint focused on AT&T and was not a scattershot incorporation of all major telecommunications companies or a blanket policy challenge. Jewel’s complaint also honed in on AT&T’s Folsom Street facility, through which all of Jewel’s communications allegedly passed and were captured.
Id. (first emphasis in original, second added). Another recent decision, Klayman v Obama, involved a challenge to the bulk
data-collection program brought by users of Verizon Wireless telecommunications services. The plaintiffs argued that they had standing based on an FISC order targeting Verizon Business
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(an entity distinct from Verizon Wireless) and by virtue of the sheer scope of the government’s data collection efforts. Klayman, 957 F.Supp.2d at 26-27. The district court agreed, opining that the government’s attempt to “create a comprehensive metadata database” meant that it “must have collected metadata from Verizon Wireless, the single largest wireless carrier in the United States, as well as AT&T and Sprint, the second and third-largest carriers.” Id. at 27 (emphasis in original). The court granted a preliminary injunction barring the government from any further data collection. Id. at 43.
On review, the Court of Appeals for the District of Columbia vacated the preliminary injunction and remanded with instructions for the district court to consider whether a limited period of jurisdictional discovery was appropriate. Klayman II, 2015 WL 5058403, at *3. In a decision featuring separate opinions from each of the three judges, the panel agreed that the district court had erred in granting the preliminary injunction, but disagreed as to whether the plaintiffs had established standing. Id.
Writing first, Judge Janice Brown emphasized that the plaintiffs had provided “specific evidence that the government operate[d] a bulk-telephony metadata program that collects subscriber information from domestic telecommunications providers, including Verizon Business Network Services.” Id. at *4. She agreed with the district court that, in order to create a database of any appreciable value, the government must also necessarily collect metadata from large carriers such as Verizon Wireless. Id. Relying on this inference, Judge Brown held that the plaintiffs had “barely fulfilled the requirements for standing at this threshold stage” but “[fell] short of meeting the higher burden of proof required for a preliminary injunction.” Id.
Judge Stephen Williams agreed that the plaintiffs were not entitled to preliminary relief, and also questioned whether they had satisfied their burden as to standing. He noted that the
8

“[p]laintiffs’ contention that the government is collecting data from Verizon Wireless . . .
depends entirely on an inference from the existence of the bulk collection program itself. Such a
program would be ineffective, they say, unless the government were collecting metadata from
every large carrier such as Verizon Wireless; ergo it must be collecting such data.” Id. at *5.
Judge Williams observed that this type of speculative inference concerning the government’s
capabilities was “no stronger than the [Amnesty International] plaintiffs’ assertions regarding the
government’s motive and capacity to target their communications.” Id. at *7. He concluded that
plaintiffs had “failed to demonstrate a ‘substantial likelihood’ that the government is collecting
[data] from Verizon Wireless” or that plaintiffs “are otherwise suffering any cognizable injury.”
Id. at *8. Nonetheless, Judge Williams joined Judge Brown in recommending that the matter be
remanded for jurisdictional discovery. Id.
The third member of the panel, Judge David Sentelle, concluded that the case should be
dismissed entirely:
[P]laintiffs never in any fashion demonstrate that the government is or has been collecting . . . records from their telecommunications provider, nor that it will do so. Briefly put, and discussed in more detail by Judge Williams, plaintiffs’ theory is that because it is a big collection and they use a big carrier, the government must be getting at their records. While this may be a better-than-usual conjecture, it is nonetheless no more than conjecture.
As Judge Williams further notes, “[Amnesty International] represents the Supreme Court’s most recent evaluation of comparable inferences and cuts strongly against plaintiffs’ claim that they have a substantial likelihood of prevailing as to standing.” While [Amnesty International] involved collection under a different statutory authorization, the standing claims of the plaintiffs before us and the plaintiffs in that case are markedly similar. In fact, the plaintiffs’ claim before us is weaker than that of the [Amnesty International] plaintiffs. [They] at least claimed that the government had previously targeted them or someone with whom they were communicating. The plaintiffs before us make no such claim.
9

* * * * * * * Plaintiffs have not demonstrated that they suffer injury from the government’s collection of records. They have certainly not shown an “injury in fact” that is “actual or imminent, not conjectural or hypothetical.” . . . I therefore would vacate the preliminary injunction as having been granted without jurisdiction by the district court, and I would remand the case, not for further proceedings, but for dismissal.
Id. at *9-10. In reviewing the foregoing decisions, a meaningful distinction emerges. In situations
where plaintiffs are able to allege with some degree of particularity that their own communications were specifically targeted – for example, by citing a leaked FISC order or relying on a detailed insider account – courts have concluded that the particularity requirement has been satisfied. See Clapper, 785 F.3d at 801 (noting that the plaintiffs were specifically targeted by an FISC order and that their data was unquestionably collected); Jewel, 673 F.3d at 910 (“Significantly, Jewel alleged with particularity that her communications were part of the dragnet.”) (emphasis in original). On the other hand, courts have refused to find standing based on naked averments that an individual’s communications must have been seized because the government operates a data collection program and the individual utilized the service of a large telecommunications company or companies. See Amnesty Int’l, 133 S. Ct. at 1148 (holding that claims based on a “speculative chain of possibilities” are insufficient); Klayman II, 2015 WL 5058403, at *5-10 (criticizing plaintiffs’ reliance on conjecture to attempt to establish standing).
Schuchardt falls squarely within the second category. In reliance on publicly available information, only, he has outlined government programs aimed at the wide-scale collection of communications data. He also alleges – again, based on media reports and other publicly-
10

available information – that the government may have the capability to collect telephone, email and internet traffic from every American citizen.
Unlike in Jewel and ACLU, Schuchardt has identified no facts from which the Court reasonably might infer that his own communications have been targeted, seized or stored. As his pleadings so much as admit, he is indistinguishable from every other American subscribing to the services of a major telephone and/or internet service provider.3 Schuchardt’s only discernable distinction is his heightened personal-interest in the subject, and, while his civicmindedness may be laudable in other contexts, is insufficient to confer standing. See Jewel at 910 (rejecting sufficiency of “scattershot” allegations encompassing “all major telecommunications companies” and/or “a blanket policy challenge” made in the absence of personal standing); see also Schlesinger, 418 U.S. at 220 (generalized grievances “common [to] all members of the public” do not confer standing).
For all of the reasons stated above, the Court hereby enters the following:
II. ORDER Defendants’ Motion to Dismiss (Doc. 20) is GRANTED.

September 30, 2015
cc (via ECF email notification): All Counsel of Record

s\Cathy Bissoon Cathy Bissoon United States District Judge

3 Cf. discussion supra (highlighting Plaintiff’s class-allegations, purporting to represent “a nationwide” class of all “American citizens” who are subscribers of several major internet service providers, and Verizon).
11

 
 6/10/2020

19-1366 Docket

General Docket Third Circuit Court of Appeals
Court of Appeals Docket #: 19-1366 Nature of Suit: 2890 Other Statutory Actions Elliott Schuchardt v. President United States of Ame, et al Appeal From: United States District Court for the Western District of Pennsylvania Fee Status: Paid

Case Type Information: 1) civil 2) United States as party 3) Other civil

Originating Court Information:

District: 0315-2 : 2-14-cv-00705

Trial Judge: Cathy Bissoon, U.S. District Judge

Date Filed: 06/02/2014

Date Order/Judgment:

Date Order/Judgment EOD:

02/04/2019

02/04/2019

Prior Cases: None

Current Cases: None

Docketed: 02/14/2019 Termed: 03/02/2020
Date NOA Filed: 02/12/2019

ELLIOTT J. SCHUCHARDT, individually and doing business as the Elliott J. Schuchardt, Esq.

Schuchardt Law Firm, on behalf of himself and all others similarly Direct: 865-304-4374

situated

Email: elliott016@gmail.com

Plaintiff - Appellant

[COR NTC Pro Se Atty]

Suite 201

6223 Highland Place Way

Knoxville, TN 37919

v.

PRESIDENT UNITED STATES OF AMERICA Defendant - Appellee

Caroline J. Anderson, Esq. Direct: 202-305-8645 Email: Caroline.J.Anderson@usdoj.gov [Federal government] United States Department of Justice Office 7220 20 Massachusetts Avenue, N.W. Washington, DC 20530

Julia A. Berman, Esq. Direct: 202-616-8480 Email: julia.berman@usdoj.gov [Federal government] United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W. Room 7130 Washington, DC 20530

Marcia Berman, Esq. Direct: 202-514-2205 Email: marcia.berman@usdoj.gov Fax: 202-616-8470 [Federal government] United States Department of Justice Room 7132 20 Massachusetts Avenue, N.W. Washington, DC 20530

Joseph F. Busa, Esq. Direct: 202-353-0261

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Email: Joseph.F.Busa@usdoj.gov Fax: 202-514-7964 [COR NTC Federal government] United States Department of Justice Civil Division, Appellate Staff 7209 950 Pennsylvania Avenue, N.W. Washington, DC 20530

James J. Gilligan, Esq. Direct: 202-514-3358 Email: james.gilligan@usdoj.gov [Federal government] United States Department of Justice Civil Division Room 3324 950 Pennsylvania Avenue, N.W. Washington, DC 20530

Rodney Patton, Esq. Direct: 202-616-4105 Email: rodney.patton@usdoj.gov Fax: 202-616-4002 [Federal government] United States Department of Justice Torts Branch, Civil Division P.O. Box 14271 Washington, DC 20044

DIRECTOR NATIONAL INTELLIGENCE Defendant - Appellee

Caroline J. Anderson, Esq. Direct: 202-305-8645 [Federal government] (see above)

Julia A. Berman, Esq. Direct: 202-616-8480 [Federal government] (see above)

Marcia Berman, Esq. Direct: 202-514-2205 [Federal government] (see above)

Joseph F. Busa, Esq. Direct: 202-353-0261 [COR NTC Federal government] (see above)

James J. Gilligan, Esq. Direct: 202-514-3358 [Federal government] (see above)

Rodney Patton, Esq. Direct: 202-616-4105 [Federal government] (see above)

DIRECTOR NATIONAL SECURITY AGENCY AND CHIEF OF THE CENTRAL SECURITY SERVICE
Defendant - Appellee

Caroline J. Anderson, Esq. Direct: 202-305-8645 [Federal government] (see above)

Julia A. Berman, Esq. Direct: 202-616-8480 [Federal government] (see above)

Marcia Berman, Esq.

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DIRECTOR FEDERAL BUREAU OF INVESTIGATION Defendant - Appellee

19-1366 Docket
Direct: 202-514-2205 [Federal government] (see above)
Joseph F. Busa, Esq. Direct: 202-353-0261 [COR NTC Federal government] (see above)
James J. Gilligan, Esq. Direct: 202-514-3358 [Federal government] (see above)
Rodney Patton, Esq. Direct: 202-616-4105 [Federal government] (see above)
Caroline J. Anderson, Esq. Direct: 202-305-8645 [Federal government] (see above)
Julia A. Berman, Esq. Direct: 202-616-8480 [Federal government] (see above)
Marcia Berman, Esq. Direct: 202-514-2205 [Federal government] (see above)
Joseph F. Busa, Esq. Direct: 202-353-0261 [COR NTC Federal government] (see above)
James J. Gilligan, Esq. Direct: 202-514-3358 [Federal government] (see above)
Rodney Patton, Esq. Direct: 202-616-4105 [Federal government] (see above)

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ELLIOTT J. SCHUCHARDT, individually and doing business as the Schuchardt Law Firm, on behalf of himself and all others similarly situated,
Appellant

v.

PRESIDENT OF THE UNITED STATES OF AMERICA; DIRECTOR OF NATIONAL INTELLIGENCE; DIRECTOR OF THE NATIONAL SECURITY AGENCY AND CHIEF OF THE CENTRAL SECURITY SERVICE; DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION

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02/14/2019

CIVIL CASE DOCKETED. Notice filed by Appellant Elliott J. Schuchardt in District Court No. 2-14-cv-

12 pg, 472.52 KB 00705. (JK) [Entered: 02/14/2019 10:36 AM]

02/14/2019

RECORD available on District Court CM/ECF. (JK) [Entered: 02/14/2019 11:00 AM]

02/15/2019

ECF FILER: CIVIL INFORMATION STATEMENT on behalf of Appellant Elliott J. Schuchardt, filed. [19-

2 pg, 86.46 KB 1366] (EJS) [Entered: 02/15/2019 10:43 AM]

02/15/2019
1 pg, 74.2 KB

ECF FILER: Transcript Purchase Order Form (Part 1) filed by Appellant Elliott J. Schuchardt advising this court that no transcripts are available. [19-1366] (EJS) [Entered: 02/15/2019 10:59 AM]

02/15/2019

ECF FILER: ENTRY OF APPEARANCE from Elliott J. Schuchardt on behalf of Appellant(s) Elliott J.

1 pg, 79.68 KB Schuchardt. [19-1366] (EJS) [Entered: 02/15/2019 11:07 AM]

02/15/2019
2 pg, 103.9 KB

ECF FILER: ENTRY OF APPEARANCE from Joseph F. Busa on behalf of Appellee(s) President of the United States of America; Director of National Intelligence; Director of the National Security Agency and Chief of the Central Security Service; and Director of the Federal Bureau of Investigation. [19-1366] (JFB) [Entered: 02/15/2019 06:21 PM]

02/25/2019

ECF FILER: Concise Summary of the Case filed by Appellant Elliott J. Schuchardt, received. [19-1366]

55 pg, 733.68 KB (EJS) [Entered: 02/25/2019 07:10 PM]

03/04/2019

BRIEFING NOTICE ISSUED. Brief on behalf of Appellant Elliott J. Schuchardt due on or before

3 pg, 267.32 KB 04/15/2019. Appendix due on or before 04/15/2019. (JK) [Entered: 03/04/2019 02:46 PM]

03/28/2019

ECF FILER: ELECTRONIC VOLUME I OF APPENDIX on behalf of Appellant Elliott J. Schuchardt, filed.

72 pg, 864.54 KB Certificate of service dated 03/28/2019 by ECF. [19-1366]--[Edited 03/29/2019 by MCW] (EJS) [Entered: 03/28/2019 05:32 PM]

03/28/2019

ECF FILER: ELECTRONIC APPENDIX on behalf of Appellant Elliott J. Schuchardt, filed. Certificate of

202 pg, 13.67 MB service dated 03/28/2019 by ECF. [19-1366] (EJS) [Entered: 03/28/2019 08:07 PM]

04/03/2019
4 pg, 71.37 KB

ECF FILER: UNOPPOSED Motion filed by Appellant Elliott J. Schuchardt for Extension of Time to file Appellant's brief until/for 30 days or May 15, 2019. Certificate of Service dated 04/03/2019. Service made by ECF. [19-1366] (EJS) [Entered: 04/03/2019 09:47 AM]

04/04/2019

HARD COPY RECEIVED from Appellant Elliott J. Schuchardt - Appendix. Copies: 4. Volumes: 2. (EMA) [Entered: 04/05/2019 02:49 PM]

04/11/2019

TEXT ONLY ORDER (Clerk) granting Unopposed Motion for Extension of Time to File Brief filed by Appellant Elliott J. Schuchardt. Appellant's brief must be filed and served on or before May 15, 2019. It is noted that Appellant's appendix was filed as of March 28, 2019. (DW) [Entered: 04/11/2019 10:14 AM]

05/07/2019

ECF FILER: Motion filed by Appellant Elliott J. Schuchardt to seal Appellant's brief. Certificate of Service

4 pg, 71.49 KB dated 05/07/2019. Service made by ECF. [19-1366] (EJS) [Entered: 05/07/2019 09:36 PM]

05/07/2019

72 pg, 355.51 KB

ECF FILER: ELECTRONIC BRIEF on behalf of Appellant Elliott J. Schuchardt. Certificate of Service dated 05/07/2019. Service made by ECF. (Sealed brief denied per Clerk Order dated 05/23/2019; Entry edited to reflect the correct event per Order] [19-1366]--[Edited 05/23/2019 by EMA] (EJS) [Entered: 05/07/2019 09:39 PM]

05/13/2019

HARD COPY RECEIVED from Appellant Elliott J. Schuchardt - Brief. Copies: 7. (RM) [Entered: 05/14/2019 01:22 PM]

05/17/2019
4 pg, 111.03 KB

ECF FILER: Response filed by Appellees Director Federal Bureau of Investigation, Director National Intelligence, Director National Security Agency and Chief of the Central Security Service and President United States of America to motion. Certificate of Service dated 05/17/2019. [19-1366] (JFB) [Entered: 05/17/2019 01:27 PM]

05/23/2019
1 pg, 49.8 KB

ORDER (Clerk) The foregoing motion and response are considered. Appellant's motion seeks to see Appellant's brief "until the government advises Appellant that it has no objection to unsealing the document." (Appellant's motion, May 7, 2019, p.3). The government opposes the motion to seal. Accordingly, Appellant's motion is denied. The Clerk's Office will unrestrict Appellant's brief on the docket so that it is publicly available. (EMA) [Entered: 05/23/2019 06:34 PM]

06/06/2019

91 pg, 708.97 KB

ECF FILER: ELECTRONIC BRIEF with Addendum attached on behalf of Appellees Director Federal Bureau of Investigation, Director National Intelligence, Director National Security Agency and Chief of the Central Security Service and President United States of America, filed. Certificate of Service dated 06/06/2019 by ECF. [19-1366] (JFB) [Entered: 06/06/2019 02:40 PM]

06/07/2019
2 pg, 46.66 KB

NON COMPLIANCE Order issued to Appellees Director Federal Bureau of Investigation, Director National Intelligence, Director National Security Agency and Chief of the Central Security Service and President United States of America regarding the brief filed on 06/06/2019. Please open the attachment for the full

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text of the Order. Compliance due by 06/12/2019. This Order does not change the deadline for filing the next brief. (EMA) [Entered: 06/07/2019 01:18 PM]

06/07/2019

HARD COPY RECEIVED from Appellees Director Federal Bureau of Investigation, Director National Intelligence, Director National Security Agency and Chief of the Central Security Service and President United States of America - Brief with Addendum attached. Copies: 7. (RM) [Entered: 06/07/2019 01:25 PM]

06/11/2019
4 pg, 111.02 KB

ECF FILER: Motion filed by Appellees Director Federal Bureau of Investigation, Director National Intelligence, Director National Security Agency and Chief of the Central Security Service and President United States of America to supplement the appendix. Certificate of Service dated 06/11/2019. Service made by ECF. SEND TO MERITS PANEL. [19-1366]--[Edited 06/20/2019 by JK] (JFB) [Entered: 06/11/2019 05:51 PM]

06/11/2019

COMPLIANCE RECEIVED. Motion to file supplemental appendix received from Appellees Director Federal Bureau of Investigation, Director National Intelligence, Director National Security Agency and Chief of the Central Security Service and President United States of America. (EMA) [Entered: 06/18/2019 06:13 PM]

06/17/2019
3 pg, 69.24 KB

ECF FILER: Response filed by Appellant Elliott J. Schuchardt to motion to supplement. Certificate of Service dated 06/17/2019. SEND TO MERITS PANEL. [19-1366]--[Edited 06/20/2019 by JK] (EJS) [Entered: 06/17/2019 08:27 AM]

06/20/2019

ORDER (Clerk) referring the Appellees motion to supplement appendix and Appellant's Response to the

1 pg, 58.01 KB merits panel, filed. (JK) [Entered: 06/20/2019 04:33 PM]

06/27/2019

ECF FILER: ELECTRONIC REPLY BRIEF on behalf of Appellant Elliott J. Schuchardt, filed. Certificate of

24 pg, 164.65 KB Service dated 06/27/2019 by ECF. [19-1366] (EJS) [Entered: 06/27/2019 03:50 PM]

07/01/2019

HARD COPY RECEIVED from Appellant Elliott J. Schuchardt - Reply Brief. Copies: 7. (LM) [Entered: 07/01/2019 02:47 PM]

07/15/2019

ECF FILER: LETTER from Attorney Elliott J. Schuchardt, Esq. for Appellant Elliott J. Schuchardt. Counsel is unavailable for the following dates: 09/24/2019, 09/25/2019, 09/26/2019, [19-1366] (EJS) [Entered: 07/15/2019 08:59 AM]

07/25/2019

Calendared for Tuesday, 09/24/2019. (Rescheduled from Monday, 09/23/2019.) Calendar Clerk: TLG.--

2 pg, 24.68 KB [Edited 09/11/2019 by TLG] (TLG) [Entered: 07/25/2019 05:03 PM]

07/25/2019
1 pg, 145.13 KB

ECF FILER: ARGUMENT ACKNOWLEDGMENT filed by Attorney Joseph F. Busa, Esq. for Appellees Director Federal Bureau of Investigation, Director National Intelligence, Director National Security Agency and Chief of the Central Security Service and President United States of America. Certificate of Service dated 07/25/2019. Service made by ECF. [19-1366] (JFB) [Entered: 07/25/2019 06:17 PM]

07/29/2019
1 pg, 51.57 KB

ECF FILER: ARGUMENT ACKNOWLEDGMENT filed by Attorney Elliott J. Schuchardt, Esq. for Appellant Elliott J. Schuchardt. Certificate of Service dated 07/29/2019. Service made by ECF. [19-1366] (EJS) [Entered: 07/29/2019 12:24 PM]

09/10/2019

Oral Argument Notification for Tuesday, 09/24/2019. Courtroom & Time: Maris Courtroom/10am. Location:

2 pg, 66.78 KB Philadelphia, PA. (TLG) [Entered: 09/10/2019 03:55 PM]

09/12/2019

Amended Oral Argument Notification for Monday, 09/23/2019. Courtroom & Time: Maris Courtroom/1pm.

2 pg, 71.18 KB Location: Philadelphia, PA. (TLG) [Entered: 09/12/2019 11:20 AM]

09/14/2019

ECF FILER: SUMMARY OF ORAL ARGUMENT submitted by Attorney Elliott J. Schuchardt, Esq. for Appellant Elliott J. Schuchardt. Case Summary: In this case, the plaintiff contends that the federal government is unlawfully collecting the nation's e-mail database, in violation of the 4th Amendment of the United States constitution. The plaintiff is seeking an injunction.. Post Video: YES. [19-1366] (EJS) [Entered: 09/14/2019 01:39 PM]

09/16/2019

ECF FILER: SUMMARY OF ORAL ARGUMENT submitted by Attorney Joseph F. Busa, Esq. for Appellees Director Federal Bureau of Investigation, Director National Intelligence, Director National Security Agency and Chief of the Central Security Service and President United States of America. Case Summary: Whether plaintiff has standing to challenge the targeted acquisition of certain electronic communications of certain non-U.S. persons located abroad.. Post Video: YES. [19-1366] (JFB) [Entered: 09/16/2019 07:27 PM]

09/19/2019
1 pg, 62.81 KB

CLERK'S LETTER to counsel written at the direction of the Court. The Court requests that oral argument scheduled on Monday, September 23, 2019 you prepare to address the following information in this attached letter. (Please see Attached Letter.) (TLG) [Entered: 09/19/2019 01:08 PM]

09/23/2019
0 pg, 0 KB

COURT MINUTES OF ARGUED/SUBMITTED CASES. [19-1395, 19-1366, 18-2602, 18-2955] (TLG) [Entered: 09/23/2019 08:25 AM]

09/23/2019

ARGUED on Monday, September 23, 2019. Panel: McKEE, AMBRO and ROTH, Circuit Judges. Joseph F. Busa arguing for Appellees Director Federal Bureau of Investigation, Director National Intelligence,

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Director National Security Agency and Chief of the Central Security Service; Elliott J. Schuchardt arguing for Appellant Elliott J. Schuchardt. (TLG) [Entered: 09/23/2019 01:26 PM]

01/06/2020

62

1 pg, 74.32 KB

ORDER (MCKEE, AMBRO and ROTH, Circuit Judges) The motion filed by Appellees Director Federal Bureau of Investigation, Director National Intelligence, Director National Security Agency and Chief of the Central Security Service and President United States of America to supplement the appendix is granted.. AMBRO, Authoring Judge. (JK) [Entered: 01/06/2020 08:59 AM]

03/02/2020

63

NOT PRECEDENTIAL OPINION. Coram: MCKEE, AMBRO and ROTH, Circuit Judges. Total Pages: 14.

14 pg, 221.78 KB Judge: AMBRO Authoring. (JK) [Entered: 03/02/2020 09:19 AM]

03/02/2020

64

JUDGMENT, Affirmed. Costs taxed against Appellant.--[Edited 03/02/2020 by JK] (JK) [Entered:

3 pg, 212.62 KB 03/02/2020 09:20 AM]

04/23/2020

65

MANDATE ISSUED. (JK) [Entered: 04/23/2020 09:42 AM]

16 pg, 471.58 KB

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 Case: 15-3491 Document: 003112426786 Page: 1 Date Filed: 10/05/2016
PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________
No. 15-3491 ____________
ELLIOTT J. SCHUCHARDT, individually and doing business as the Schuchardt Law Firm,
on behalf of himself and all others similarly situated, Appellant
v.
PRESIDENT OF THE UNITED STATES; DIRECTOR OF NATIONAL INTELLIGENCE; DIRECTOR OF THE NATIONAL SECURITY AGENCY AND CHIEF OF THE CENTRAL SECURITY SERVICE; DIRECTOR OF THE FEDERAL BUREAU OF
INVESTIGATION ____________
On Appeal from the United States District Court for the Western District of Pennsylvania (W.D. Pa. No. 2-14-cv-00705) District Judge: Honorable Cathy Bissoon ____________

Case: 15-3491 Document: 003112426786 Page: 2 Date Filed: 10/05/2016
Argued: May 17, 2016 Before: SMITH, Chief Judge, HARDIMAN, and
NYGAARD, Circuit Judges.
(Filed: October 5, 2016)
Elliot J. Schuchardt [Argued] 309 Braeburn Drive Winchester, VA 22601
Counsel for Appellant
Andrew G. Crocker, Esq. Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109
Counsel for Amicus Appellant
Benjamin C. Mizer David J. Hickton H. Thomas Byron III Henry C. Whitaker [Argued] United States Department of Justice Appellate Section, Room 7256 950 Pennsylvania Avenue, N.W. Washington, DC 20530
Counsel for Appellee
Honorable D. Brooks Smith, United States Circuit Judge for the Third Circuit, assumed Chief Judge status on October 1, 2016.
2

Case: 15-3491 Document: 003112426786 Page: 3 Date Filed: 10/05/2016
____________
OPINION ____________
HARDIMAN, Circuit Judge.
This appeal involves a constitutional challenge to an electronic surveillance program operated by the National Security Agency (NSA) under the authority of Section 702 of the Foreign Intelligence Surveillance Act (FISA). Elliott Schuchardt appeals an order of the United States District Court for the Western District of Pennsylvania dismissing his civil action for lack of jurisdiction. The District Court held that Schuchardt lacked standing to sue because he failed to plead facts from which one might reasonably infer that his own communications had been seized by the federal government. Because we hold that, at least as a facial matter, Schuchardt’s second amended complaint plausibly stated an injury in fact personal to him, we will vacate the District Court’s order and remand.
I
Schuchardt’s appeal is the latest in a line of cases raising the question of a plaintiff’s standing to challenge surveillance authorized by Section 702. Congress amended FISA in 2008 to “supplement[] pre-existing FISA authority by creating a new framework under which the Government may . . . target[] the communications of non-U.S. persons located abroad.” Clapper v. Amnesty International USA, 133 S. Ct. 1138, 1144 (2013); see also FISA Amendments Act of 2008, Pub. L. No. 110–261, 122 Stat. 2436, 2438, 50 U.S.C. § 1881a. On the day Section 702 became law, its
3

Case: 15-3491 Document: 003112426786 Page: 4 Date Filed: 10/05/2016
constitutionality was challenged by “attorneys and human rights, labor, legal, and media organizations whose work allegedly require[d] them to engage in . . . telephone and email communications” with persons located outside the United States. See id. at 1145. The Clapper plaintiffs claimed that Section 702 was facially unconstitutional under the Fourth Amendment, which prohibits unreasonable searches and seizures. See id. at 1146.
A
The dispositive question presented to the Supreme Court in Clapper was whether the plaintiffs had established an “imminent” injury “fairly traceable” to the government’s conduct under Section 702. See 133 S. Ct. at 1147. Because the plaintiffs had brought suit on the day the law was enacted, there was no evidence that their communications had been intercepted—there was only a looming “threat of [future] surveillance.” Id. at 1145–46. Nonetheless, the plaintiffs claimed they had standing because there was an “objectively reasonable likelihood” that their communications would be intercepted based on the nature of their contacts with persons outside of the country. Id at 1146.
The Supreme Court rejected this argument as “inconsistent” with longstanding precedent requiring that “threatened injury must be certainly impending to constitute injury in fact,” Clapper, 133 S. Ct. at 1147 (emphasis in original) (quoting Whitmore v. Arkansas, 495 U.S 149, 158 (1990)). And because the plaintiffs could rely only on a “speculative chain of possibilities” to support their allegations of future harm from unlawful government surveillance, they failed to demonstrate an injury that was “certainly impending.” Id. at 1150.
4

Case: 15-3491 Document: 003112426786 Page: 5 Date Filed: 10/05/2016
In particular, the Court characterized the Clapper plaintiffs’ “speculative chain” as entailing five inferential leaps:
(1) the Government will decide to target the communications of non-U.S. persons with whom [the plaintiffs] communicate; (2) in doing so, the Government will choose to invoke its authority under [Section 702] rather than . . . 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 [Section 702’s] many safeguards and are consistent with the Fourth Amendment; (4) the Government will succeed in intercepting the communications of [the plaintiffs’] contacts; and (5) [the plaintiffs] will be parties to the particular communications that the Government intercepts. 133 S. Ct. at 1148. On summary judgment, the plaintiffs had failed to “set forth by affidavit or other evidence specific facts” supporting these inferences. Id. at 1149 (internal quotation marks omitted). Accordingly, they lacked standing to challenge the constitutionality of Section 702. Id.
5

Case: 15-3491 Document: 003112426786 Page: 6 Date Filed: 10/05/2016
B
Soon after Clapper was decided, former NSA contractor Edward Snowden leaked a trove of classified documents to journalists writing for the Washington Post and Guardian.1 Those documents referenced the existence of an NSA program engaged in the bulk collection of domestic telephone metadata, i.e., “details about telephone calls, including for example, the length of a call, the phone number from which the call was made, and the phone number called,” but not the voice content of the call itself. ACLU v. Clapper, 785 F.3d 787, 793 (2d Cir. 2015); see also Smith v. Obama, 816 F.3d 1239, 1241 (9th Cir. 2016); Obama v. Klayman, 800 F.3d 559, 561 (D.C. Cir. 2015). The operational parameters of the program were summarized in a classified order of the Foreign Intelligence Surveillance Court (FISC) directed at Verizon Business Network Services. ACLU, 785 F.3d at 795. In short, based on Section 215 of the USA PATRIOT Act, Pub. L. No. 107–56, 115 Stat. 272, 287 (2001) (codified as amended at 50 U.S.C. § 1861 et seq.), Verizon was producing to the government, “all call detail records or ‘telephony metadata’ . . . on all telephone calls made through its systems or using its services where one or both ends of the call are located in the United States.” ACLU, 785 F.3d at 795.
1 See, e.g., Ellen Nakashima, Verizon Providing All Call Records to U.S. Under Court Order, Wash. Post (June 6, 2013), https://perma.cc/LZK7-37CJ; see also Glenn Greenwald, NSA Collecting Phone Records of Millions of Verizon Customers Daily, Guardian (June 6, 2013), https://perma.cc/UR2A-492H.
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The government’s bulk collection of telephone metadata precipitated a number of lawsuits. In one case, the Second Circuit held that the government had exceeded its statutory authority under Section 215 to obtain “relevant” information by constructing an “all-encompassing” database of “every telephone call made or received in the United States.” ACLU, 785 F.3d at 812–13. Under the statute’s sunset provision, however, authorization for the bulk telephone metadata collection program expired on June 1, 2015. See Pub. L. No. 112–14, 125 Stat. 216 (2011) (authorizing an extension); Smith, 816 F.3d at 1241. And although the program was subsequently reauthorized by the USA FREEDOM Act, Pub. L. No. 114–23, 129 Stat. 268 (2015), that act “prohibits any further bulk collection.” Smith, 816 F.3d at 1241. In reliance on that prohibition, the Ninth Circuit has determined that “claims related to the ongoing collection of metadata [under Section 215] are [now] moot.” Id.
Separate and apart from the bulk collection of telephone metadata under Section 215, the documents leaked to the Washington Post and Guardian also shed light on a previously undisclosed electronic surveillance program operating under Section 702 called PRISM.2 Slides from a presentation purportedly authored by the NSA described
2 See, e.g., Barton Gellman & Laura Poitras, U.S. British Intelligence Mining Data from Nine U.S. Internet Companies in Broad Secret Program, Wash. Post (June 7, 2013), https://perma.cc/YJU2-U9TZ; Glenn Greenwald & Ewan MacAskill, NSA Prism Program Taps in to User Data of Apple, Google and Others, Guardian (June 7, 2013), https://perma.cc/RPA9-RXSY
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PRISM as “collect[ing] directly from the servers” the full content of user communications exchanged using services provided by several large U.S. companies—including Microsoft, Google, Yahoo, Apple, and Facebook. App. 53. Another slide depicted a timeline showing the inception of PRISM collection from each company, beginning with Microsoft in September 2007 and ending with Apple in October 2012. Yet another slide suggested a slogan for the NSA’s “New Collection Posture”: “Sniff it All, Know it All, Collect it All, Process it All, Exploit it All, and Partner it All.” App. 61.
II
On June 2, 2014, Schuchardt filed a complaint in the District Court asserting constitutional, statutory, and state law claims against the President, the Director of National Intelligence, and the Directors of the NSA and Federal Bureau of Investigation. He alleged that the Government was violating the Fourth Amendment by storing his confidential communications “in a computer database, or through a government program, which the Defendants call ‘Prism.’” Civil Complaint ¶ 22, Schuchardt v. Obama, No. 2-14-cv00705-CB (W.D. Pa. June 2, 2014), ECF No. 1. He sought to enjoin “the [Government] from engaging in any further collection of . . . [his] information.” Id. ¶ 37.
Schuchardt responded to the Government’s successive motions to dismiss by amending his complaint twice. In addition to refining and expanding his allegations, Schuchardt supplemented his averments with exhibits, the contents of which fall into two general categories. First, he supported his allegations regarding PRISM with excerpts of the classified materials that were the focus of the Washington Post and
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Guardian reports, as well as several of the reports themselves. Second, he included affidavits filed in support of the plaintiffs in Jewel v. NSA (Jewel I), 965 F. Supp. 2d 1090 (N.D. Cal. 2013), a case challenging the NSA’s interception of internet traffic flowing through a telecommunications facility in San Francisco pursuant to an Executive Order issued shortly after September 11, 2001. Id. at 1098. Jewel I was decided on remand from Jewel v. NSA, 673 F.3d 902 (9th Cir. 2011), in which the Ninth Circuit held that the plaintiffs had adequately pleaded Article III standing to sue. See 673 F.3d at 913. The affidavits in Jewel I were filed by former NSA employees who asserted that the agency had, since September 11, developed an expansive view of its own surveillance authority and the technology to back it up. See, e.g., App. 126 (“The post-September 11 approach was that NSA could circumvent federal statutes and the Constitution as long as there was some visceral connection to looking for terrorists. . . . [The NSA] has, or is in the process of obtaining, the capability to seize and store most electronic communications passing through its U.S. intercept centers.”).3
3 Schuchardt’s second amended complaint also asserted: a Fourth Amendment claim challenging the bulk collection of telephone metadata under Section 215, App. 99 (Count II); a Pennsylvania state-law claim, App. 100 (Count III), and a First Amendment claim, App. 101 (Count IV), challenging both PRISM and the telephone metadata program; and statutory claims under FISA seeking injunctive relief, App. 103 (Count V), and damages, App. 104 (Count VI). At oral argument, Schuchardt belatedly conceded that his claims regarding the bulk collection of telephone metadata were mooted by the USA FREEDOM Act. See Transcript of Oral Argument at 5, Schuchardt v. Obama, No. 15-3491 (3d
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Based on the record he had compiled, Schuchardt’s second amended complaint alleged that because the Government was “intercepting, monitoring and storing the content of all or substantially all of the e-mail sent by American citizens,” his own online communications had been seized in the dragnet. App. 82, 95–99 (emphasis added). In particular, Schuchardt asserted that he was “a consumer of various types of electronic communication, storage, and internet services,” including “the e-mail services provided by Google and Yahoo; the internet search services of Google; the cloud storage services provided by Google and Dropbox; [and] the e-mail and instant message services provided by Facebook.” App. 95–96. Then, relying on the operational details of PRISM made public by the Washington Post and Guardian, he alleged that: (1) the Government “had obtained direct access to the servers” of the companies providing him with these services; (2) the Government was “unlawfully intercepting, accessing, monitoring and/or storing [his] private communications . . . made or stored through such services”; and (3) the Government was “collecting such information in order to ‘data mine’ the nation’s e-mail database.” App. 84, 95–97.
Cir. May 17, 2016). He also agreed that his claim for monetary damages under FISA was barred by the doctrine of sovereign immunity, and that he was no longer pursuing his claims under the First Amendment. Id. at 10–11. In light of Schuchardt’s concessions, we do not address these issues, and focus solely on whether he has standing to litigate his Fourth Amendment claim for injunctive relief based on the Government’s alleged bulk collection of online communications under PRISM, App. 95 (Count I).
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In its motion to dismiss Schuchardt’s second amended complaint, the Government principally took issue with his allegation that the “NSA collects the online communications . . . of all Americans, including, therefore, his.” See Brief in Support of Defendants’ Motion to Dismiss Plaintiff’s Second Amended Complaint at 2, Schuchardt v. Obama, No. 2-14cv-00705-CB (W.D. Pa. Dec. 11, 2014), ECF No. 21 (emphasis added). Specifically, the Government argued that because Section 702 authorizes the targeted surveillance of only persons outside the United States, it was implausible that PRISM—a program operating under the authority of Section 702—was a dragnet capturing all the country’s domestic online communications. In support of its position, the Government cited a report on PRISM prepared by the Privacy and Civil Liberties Oversight Board (PCLOB),4 an independent agency tasked with “review[ing] actions the executive branch takes to protect the Nation from terrorism, ensuring that the need for such actions is balanced with the need to protect privacy and civil liberties.” 42 U.S.C. § 2000ee(c)(1). Based on its review, the PCLOB determined that “[i]n PRISM collection, the government . . . sends selectors—such as an email address—to a United Statesbased electronic communications service provider,” who is then by law “compelled to give the communications sent to or from that selector to the government.” PCLOB Report at 33. Far from being the dragnet that Schuchardt had alleged,
4 Privacy & Civil Liberties Oversight Board, Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act (July 2, 2014), available at https://www.pclob.gov/library/702-Report.pdf [hereinafter PCLOB Report].
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therefore, “PRISM collection under Section 702 may be targeted only at non-U.S. persons located abroad who possess or are likely to receive foreign-intelligence information.” Brief in Support of Defendants’ Motion to Dismiss at 10, Schuchardt v. Obama, No. 2-14-cv-00705-CB (W.D. Pa. Aug. 11, 2014), ECF No. 8. Because none of Schuchardt’s allegations suggested that he or his associates would be targeted as such persons, the Government argued that he had failed to include “well-pleaded allegations and nonconclusory allegations of fact” necessary to establish his standing. Brief in Support of Defendants’ Motion to Dismiss Plaintiff’s Second Amended Complaint at 4, Schuchardt v. Obama, No. 2-14-cv-00705-CB (W.D. Pa. Dec. 11, 2014), ECF No. 21.
The District Court granted the Government’s motion to dismiss Schuchardt’s second amended complaint, but took a slightly different tack than what the Government had suggested. After considering four cases examining constitutional standing to sue in cases challenging national security surveillance—Clapper, ACLU, Jewel, and Klayman—the Court deduced a “meaningful distinction” that explained their divergent outcomes. Schuchardt v. Obama, 2015 WL 5732117, at *6 (W.D. Pa. Sept. 30, 2015). “In situations where plaintiffs are able to allege with some degree of particularity that their own communications were specifically targeted—for example by citing a leaked FISC order or relying on a detailed insider account—courts have concluded that the particularity requirement has been satisfied.” Id. “On the other hand, courts have refused to find standing based on naked averments that an individual’s communications must have been seized because the government operates a data collection program and the
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individual utilized the service of a large telecommunications company.” Id.
Applying the pleading standard it had gleaned from Clapper, ACLU, Jewel, and Klayman, the District Court began by noting that the facts underpinning Schuchardt’s allegations were drawn almost entirely from “media reports and publicly available information.” Id. Accordingly, his lawsuit fell “squarely within the second category” of cases, i.e., those brought by plaintiffs who lacked Article III standing. Id. Furthermore, Schuchardt “had identified no facts from which the Court reasonably might infer that his own communications have been targeted, seized, or stored.” Id. As such, he was “indistinguishable from every other American subscribing to the services of a major telephone and/or internet service provider.” Id. His “only discernible distinction [was] his heightened personal-interest in the subject,” which was “insufficient to confer standing.” Id. (citing Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 220 (1974)).
III
The District Court had jurisdiction over Schuchardt’s claims under 28 U.S.C. § 1331, as well as the inherent power to ascertain its own jurisdiction. See Arbaugh v. Y. & H. Corp., 546 U.S. 500, 514 (2006). We have jurisdiction under 28 U.S.C. § 1291. See also Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541–42 (1986). We review de novo the District Court’s order dismissing Schuchardt’s second amended complaint. See Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012).
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At the outset, we note that there is an important distinction between “facial” and “factual” attacks on subject matter jurisdiction raised in a motion under Rule 12(b)(1) of the Federal Rules of Civil Procedure. See Mortensen v. First Fed. Sav. & Loan, 549 F.2d 884, 891 (3d Cir. 1977). In a facial attack, we review only “the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff.” Gould Elecs. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). If, however, the defendant contests the pleaded jurisdictional facts, “the court must permit the plaintiff to respond with evidence supporting jurisdiction.” Id. at 177 (citing Int’l Ass’n of Machinists & Aerospace Workers v. Nw. Airlines, Inc., 673 F.2d 700, 711– 12 (3d Cir. 1982)). “The court may then determine jurisdiction by weighing the evidence presented by the parties,” but “if there is a dispute of a material fact, the court must conduct a plenary trial on the contested facts prior to making a jurisdictional determination.” Id.
It is clear from the record in this case that the District Court viewed the Government’s motion to dismiss as a facial attack on its jurisdiction. The Court’s analysis focused solely on Schuchardt’s second amended complaint; it did not consider any extrinsic facts proffered by the Government, including, for example, the nature of PRISM collection as determined by the PCLOB. See Schuchardt, 2015 WL 5732117, at *5–7. Accordingly, our review of the District Court’s order will accept as true all of Schuchardt’s plausible allegations, and draw all reasonable inferences in his favor.5
5 Schuchardt has also challenged on appeal the District Court’s order denying his request for a preliminary injunction, a decision the Court rendered more than six
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IV We begin our analysis with first principles. As a plaintiff seeking to invoke federal jurisdiction, Schuchardt bears the burden of establishing each element of his standing to sue under Article III. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). “[T]he irreducible constitutional minimum of standing contains three elements.” Id. at 560. First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Id. at 560–61 (internal quotation marks, citations, and alterations omitted).
months before granting the Government’s motion to dismiss. Because Schuchardt failed to identify that unrelated order in his notice of appeal, however, we lack jurisdiction to consider his arguments. See Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 184 (3d Cir. 2010).
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Because a motion to dismiss raising a facial attack on subject matter jurisdiction relies solely on the pleadings, “we apply the same standard of review we use when assessing a motion to dismiss for failure to state a claim.” See Finkelman v. NFL, 810 F.3d 187, 194 (3d Cir. 2016). “Thus, to survive a motion to dismiss for lack of standing, a plaintiff must allege facts that affirmatively and plausibly suggest that [he] has standing to sue.” Id. (internal quotation marks omitted). That is, the plaintiff must “plausibly allege facts establishing each constitutional requirement.” Hassan v. City of New York, 804 F.3d 277, 289 (3d Cir. 2015); see also Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).
Against this doctrinal backdrop, Schuchardt’s Article III standing turns on two inquiries. First, were his allegations sufficiently “particularized” to demonstrate that he suffered a discrete injury? See Lujan, 504 U.S. at 560. Second, were those facts pleaded with enough detail to render them plausible, “well-pleaded” allegations entitled to a presumption of truth? See Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554 (2007). We address each inquiry in turn.
A
A “particularized” Article III injury is one that “affect[s] the plaintiff in a personal and individual way.” In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 245 (3d Cir. 2012) (quoting Lujan, 504 U.S. at 560 n.1). That putative litigants must suffer in some discrete and personal fashion ensures, first, that “the legal questions presented . . . will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the
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consequences of judicial action,” and, second, that our “exercise of judicial power” shows “[p]roper regard for the . . . other two coequal branches of the Federal Government.” Valley Forge Christian Coll. v. Ams. United for the Separation of Church & State, Inc., 454 U.S. 464, 471–74 (1982). These two concerns—respect for the judicial role and separation of powers—are most salient when courts are asked “to review actions of the political branches in the fields of intelligence gathering and foreign affairs.” Clapper, 133 S. Ct. at 1147.
The Supreme Court has identified a subset of cases in which plaintiffs routinely fail to demonstrate particularized injury because they present only “generalized grievances,” i.e., injuries that are “undifferentiated and ‘common to all members of the public.’” Lujan, 504 U.S. at 573–74 (quoting United States v. Richardson, 418 U.S. 166, 177 (1974)). “Whether styled as a constitutional or prudential limit on standing, the Court has sometimes determined that where large numbers of Americans suffer alike, the political process, rather than the judicial process, may provide the more appropriate remedy.” Fed. Election Comm’n v. Akins, 524 U.S. 11, 23 (1998). Such cases often involve government action directed at the public at large, or harms that by their nature touch upon interests that are widely shared. See, e.g., Schlesinger, 418 U.S. at 217 (plaintiffs asserting violation of the Incompatibility Clause by members of Congress also serving in the armed reserves lacked standing because their only interest was “to have the Judicial Branch compel the Executive Branch to act in conformity with the [law] . . . an interest shared by all citizens”); Sierra Club v. Morton, 405 U.S. 727, 734–36 (1972) (association challenging
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development of national park lacked standing based on alleged “special interest” in conservation).
Nevertheless, “[t]he fact that an injury may be suffered by a large number of people does not of itself make that injury a nonjusticiable generalized grievance.” Spokeo, 136 S. Ct. at 1548 n.7. “The victims’ injuries from a mass tort, for example, are widely shared, to be sure, but each individual suffers a particularized harm.” Id.; see also Massachusetts v. EPA, 549 U.S. 497, 526 n.24 (2007) (“[S]tanding is not to be denied simply because many people suffer the same injury. . . . To deny standing to persons who are in fact injured simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody.”). And although particularity and concreteness are distinct elements constituting injury in fact, see Spokeo, 136 S. Ct. at 1545, the Supreme Court has also observed that the “judicial language” accompanying generalized grievances “invariably appears in cases where the harm is not only widely shared, but also of an abstract or indefinite nature—for example, harm to the ‘common concern for obedience to law.’” Akins, 524 U.S. at 23 (emphasis added).
We applied these principles in a recent case involving allegations of government surveillance. In Hassan v. City of New York, the plaintiffs claimed that the New York City Police Department (NYPD) had implemented a program “to monitor the lives of Muslims, their businesses, houses of worship, organizations, and schools.” 804 F.3d at 285. The program allegedly entailed “widespread” photo and video surveillance of “organizations and businesses . . . visibly or openly affiliated with Islam,” and the infiltration of “Muslimaffiliated” groups with informants and undercover police
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officers. Id. at 285–86. The information gathered was compiled into a series of reports “document[ing] . . . American Muslim life in painstaking detail.” Id. (internal quotation marks omitted). The Hassan plaintiffs discovered the program after some of these reports became “widely publicized,” and they asserted that the fallout required them to alter their ordinary day-to-day conduct. See id. at 287–88.
We held that the plaintiffs’ allegations in Hassan were sufficient to demonstrate particularized injury under Article III. After determining that they had asserted “an invasion of a legally protected interest”—“[t]he indignity of being singled out [by the government] for special burdens on the basis of one’s religious calling”—we observed that the particularized nature of an injury does not turn on the number of persons that may claim it. Id. at 289. “[T]hat hundreds or thousands (or even millions) of other persons may have suffered the same injury does not change the individualized nature of the asserted rights and interests at stake.” Id. at 291 (citing Akins, 524 U.S. at 24). “Harm to all—even in the nuanced world of standing law—cannot be logically equated with harm to no one.” Id. And with regard to allegations of widespread government surveillance, we stated that because the plaintiffs had “claim[ed] to be the very targets of the allegedly unconstitutional surveillance, they [were] unquestionably ‘affect[ed] . . . in a personal and individual way.’” Id. (quoting Lujan, 504 U.S. at 560 n.1).
Like the plaintiffs in Hassan, Schuchardt has alleged a program of government surveillance that, though universal in scope, is unmistakably personal in the purported harm. His second amended complaint describes PRISM as a dragnet that collects “all or substantially all of the e-mail sent by American citizens by means of several large internet service
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providers.” App. 82. The collected information allegedly encompasses Schuchardt’s personal communications, and includes not only the kind of intensely private details that one could reasonably expect to find in the email accounts of most Americans—“bank account numbers; credit card numbers; passwords for financial data; [and] health records”—but also data influenced by Schuchardt’s personal circumstances, namely “trade secrets” and “communications with clients of Schuchardt’s law firm, which are privileged and confidential under applicable law.” App. 96.
The Government strenuously disputes the plausibility of Schuchardt’s assertion that PRISM collects “all or substantially all of the e-mail sent by American citizens,” and we address that dispute in detail below. But putting aside for the moment the question of whether Schuchardt’s allegations concerning PRISM are entitled to a presumption of truth, the consequences that he identifies as flowing from the Government’s alleged dragnet are undoubtedly personal to him insofar as he has a constitutional right to maintain the privacy of his personal communications, online or otherwise. See Plumhoff v. Rickard, 134 S. Ct. 2012, 2022 (2014) (“Fourth Amendment rights are personal rights . . . which may not be vicariously asserted.” (quoting Alderman v. United States, 394 U.S. 165, 174 (1969)). That interest is neither indivisibly abstract nor indefinite, see Warshak v. United States, 631 F.3d 266, 288 (6th Cir. 2010), and the fact that a large percentage of the population may share a similar interest “does not change [its] individualized nature” because Schuchardt’s allegations make clear that he is among the persons that are the “very targets of the allegedly unconstitutional surveillance.” Hassan, 804 F.3d at 291; cf. Riley v. California, 134 S. Ct. 2473, 2484–85 (2014)
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(extending the warrant requirement to searches of cellular phones, “which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy”).
B
Having determined that Schuchardt’s allegations stated a particularized injury under Article III, we now consider whether those allegations should be credited as true for the purpose of resolving the Government’s jurisdictional objection. As noted previously, the District Court construed the Government’s motion to dismiss as a facial attack on its subject matter jurisdiction. As a result, we must accept Schuchardt’s allegations as true, with the important caveat that the presumption of truth attaches only to those allegations for which there is sufficient “factual matter” to render them “plausible on [their] face.” Iqbal, 556 U.S. at 679. Conclusory assertions of fact and legal conclusions are not entitled to the same presumption. See id.; see also Twombly, 550 U.S. at 57; Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (“Under the pleading regime established by Twombly and Iqbal, a court reviewing the sufficiency of a complaint must . . . identify allegations that, ‘because they are no more than conclusions, are not entitled to the assumption of truth.’” (quoting Iqbal, 556 U.S. at 679)).6
6 We have instructed courts to follow a three-step process to determine the sufficiency of a complaint in accordance with Twombly and Iqbal. “First, [the court] must take note of the elements the plaintiff must plead to state a claim. Second, it should identify allegations that, because they are no more than conclusions, are not entitled to the
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1
We have recognized that “[t]he plausibility determination is a ‘context-specific task that requires the reviewing court to draw on its judicial experience and common sense.’” See, e.g., Connelly, 809 F.3d at 786–87 (quoting Iqbal, 556 U.S. at 675). At the same time, we have cautioned that the plausibility standard does not impose a heightened pleading requirement, and that Federal Rule of Civil Procedure 8(a) continues to require only a “showing” that the pleader is entitled to relief. See, e.g., Phillips v. Cty. of Allegheny, 515 F.3d 224, 233–34 (3d Cir. 2008) (“The [Supreme] Court emphasized . . . that it was neither demanding a heightened pleading of specifics nor imposing a probability requirement.”)). Indeed, although Twombly and Iqbal emphasized the plaintiff’s burden of pleading sufficient “factual matter,” the Supreme Court also expressly “disavow[ed]” the requirement that a plaintiff plead “specific facts.” Boykin v. KeyCorp, 521 F.3d 202, 215 (2d Cir. 2008) (quoting Twombly, 550 U.S. at 569, and Erickson v. Pardus, 551 U.S. 89, 93 (2007)).
Implicit in the notion that a plaintiff need not plead “specific facts” to survive a motion to dismiss is that courts cannot inject evidentiary issues into the plausibility
assumption of truth. Finally, when there are well-pleaded factual allegations, the court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Connelly, 809 F.3d at 787 & n.4 (internal citations, quotations marks, and original modifications omitted).
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determination.7 See Twombly, 550 U.S. at 556 (“[A] wellpleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable.”). This includes the weighing of facts or the requirement that a plaintiff plead “specific facts” beyond those necessary to state a valid claim. See id. at 573 n.8 (“[W]hen a complaint adequately states a claim, it may not be dismissed based on a district court’s assessment that the plaintiff will fail to find evidentiary support for his allegations or prove his claim to the satisfaction of the factfinder.”). The same logic precludes a court from rejecting pleaded facts based on some blanket exclusion of evidence. See Ricciuti v. New York City Transit Auth., 941 F.2d 119, 124 (2d Cir. 1991). “A contrary rule
7 The “evidentiary issues” to which we refer are distinct from the question of what documents may be considered in resolving a motion to dismiss applying the standard of review under Rule 12(b)(6), or, as relevant here, addressing a facial challenge to subject matter jurisdiction under Rule 12(b)(1). The general rule for determining the scope of the pleadings in this scenario is that a district court “may consider only the allegations contained in the pleading[s] to determine [their] sufficiency,” but is permitted to consider “document[s] integral to or explicitly relied upon in the complaint,” and “any undisputedly authentic document that a defendant attaches . . . if the plaintiff’s claims are based on the document,” without converting the motion into one for summary judgment. See In re Asbestos Prods. Liability Litig. (No. VI), 822 F.3d 125, 133 & n.7 (3d Cir. 2016) (internal citations and quotation marks omitted). See generally 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 n.1 (3d ed. 2016).
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would confuse the principles applicable to a motion to dismiss with those governing a motion for summary judgment.” Campanella v. Cty. of Monroe, 853 F. Supp. 2d 364, 378 (W.D.N.Y. 2012); see also Whitney v. Guys, Inc., 700 F.3d 1118, 1128–29 (8th Cir. 2012).
Accordingly, although it is unclear whether the District Court applied a heightened pleading standard in this case, to the extent that its opinion suggests that Schuchardt’s reliance on “media reports and other publicly-available information” was impermissible, we disagree.8 See Schuchardt, 2015 WL 5732117, at *6. Indeed, we held that the plaintiffs in Hassan had plausibly pleaded both their standing to sue and claims for relief based on NYPD surveillance reports that the plaintiffs had discovered only after they had been “widely publicized.” See 804 F.3d at 287. Similarly, we take the
8 Despite Clapper’s observation that the standing inquiry is “especially rigorous” in matters touching on “intelligence gathering and foreign affairs,” 133 S. Ct. at 1147, to our knowledge no court has imposed a heightened pleading standard for cases implicating national security. See Jewel, 673 F.3d at 913 (“Article III imposes no heightened standing requirement for the often difficult cases that involve constitutional claims against the executive involving surveillance.”). In this appeal, we will assume without deciding that a heightened pleading standard does not apply. See, e.g., Jones v. Bock, 549 U.S. 199, 212–13 (2007) (explaining that “courts should generally not depart from the usual practice under the Federal Rules on the basis of perceived policy concerns,” including the imposition of a pleading standard more stringent than the “short and plain statement” of the claim under Rule 8).
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District Court’s enumeration of the types of evidence giving rise to the plaintiffs’ standing in Jewel and ACLU—“a leaked FISC order or a detailed insider account”—as merely a suggestion of facts that would have strongly supported the plausibility of Schuchardt’s allegations, rather than a requirement that he plead those specific facts. See 2015 WL 6732117, at *6. Such limitations on the scope or source of facts that a plaintiff may plead to reach the threshold of plausibility run counter to the longstanding principles animating pretrial dispositions, as set forth in Twombly and Iqbal, and come close to the weighing of evidence and credibility determinations that are the exclusive province of the factfinder. See Iqbal, 556 U.S. at 681 (“It is the conclusory nature of respondent’s allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth.”); Twombly, 550 U.S. at 556 (“Rule 12(b)(6) does not countenance . . . dismissals based on a judge’s disbelief of a complaint’s factual allegations.” (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The upshot of all this for Schuchardt is that his reliance on news articles and other disclosures concerning PRISM weighs neither in his favor nor against him. Instead, these public reports (and the leaked classified materials accompanying them) are simply part and parcel of the “factual matter” that must be considered in assessing the plausibility of his allegations. We will therefore examine those reports in conjunction with the rest of Schuchardt’s pleadings to ascertain whether he plausibly alleged a particularized injury under Article III.
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2
Based on our review of the pleadings, the plausibility of Schuchardt’s alleged injury—that the Government has been “unlawfully intercepting, accessing, monitoring and/or storing [his] private communications,” App. 95—depends on the plausibility of his assertion that PRISM functions as an indiscriminate dragnet which captures “all or substantially all of the e-mail sent by American citizens.” App. 82. Aside from this sweeping allegation, Schuchardt has supplied no facts suggesting how (or why) the Government would have been interested in his online activity. His burden, therefore, was to allege enough “factual matter” to make plausible the Government’s virtual dragnet. Iqbal, 556 U.S. at 679; see also Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015).
Schuchardt pleaded facts drawn from news articles published by the Guardian, as well as the leaked and purportedly classified materials from which those articles were derived. As we noted in Part I.B, supra, these documents state that the NSA, through PRISM, has obtained “direct” access to the technical facilities of several major internet service providers. App. 53, 84. They indicate specific dates for when those providers granted the Government access, App. 60, and that the degree of access those providers granted enables the Government to query their facilities at will for “real-time interception of an individual’s internet activity.” App. 66. They also describe the types of activity that may be accessed, encompassing “both the content and metadata of . . . private e-mail communications” sent by those providers on behalf of their subscribers. App. 59, 96. Finally, they claim that the rate of data “[c]ollection is outpacing [the Government’s] ability to ingest, process and store [the data] to the ‘norms’ to which [it has] become accustomed,” App.
26

Case: 15-3491 Document: 003112426786 Page: 27 Date Filed: 10/05/2016
64, and that the NSA’s overriding surveillance goal is to “[c]ollect it [a]ll,” App. 61.
By including these factual averments in his second amended complaint, Schuchardt outlined a coherent and plausible case supporting his PRISM-as-dragnet allegations. First, his alleged facts specify, at least to some degree, the means through which the NSA captures “all or substantially all of the e-mail sent by American citizens,” App. 82, namely, by compelling companies that provide email and other internet services to cooperate with the NSA in the collection of their customers’ data. Although the technical details of how each company’s email service integrates within PRISM’s infrastructure are not specified, “on a motion to dismiss, we ‘presum[e] that general allegations embrace those specific facts that are necessary to support the claim.’” Lujan, 504 U.S. at 561 (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 781, 889 (1990)). Moreover, according to the NSA itself, PRISM entails data “collection directly from the servers” of these companies, and Schuchardt describes events involving Lavabit, a company that resisted the Government’s demands to “install a device on its server which would have provided the [Government] with access to the full content of all e-mail messages for all of Lavabit’s . . . customers.” See App. 53, 84, 87. Thus, the pleaded facts plausibly allege the technical means through which PRISM purportedly achieves a nationwide email dragnet.9
9 We do not read the Ninth Circuit’s opinion in Jewel to suggest a different conclusion. To be sure, the plaintiff in Jewel was able to allege “with particularity” that her communications were seized by “focus[ing]” her complaint on interceptions occurring at a specific technical facility
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Second, Schuchardt’s allegations are replete with details confirming PRISM’s operational scope and capabilities. The exhibits attached to his second amended complaint include a slide from a purported NSA presentation identifying company names and the dates they began cooperating with the agency. Another slide confirms that— consistent with a dragnet capturing “all or substantially all of the e-mail sent by American citizens”—the scale of the data collected by PRISM is so vast that the Government reported difficulty processing it according “to the ‘norms’ to which [it has] become accustomed.” App. 64; see also App. 52 (characterizing PRISM as the “SIGAD Used Most in NSA Reporting”);10 App. 61 (indicating the NSA’s “New Collection Posture” of “Collect[ing] it All”).
operated by a single telecommunications provider. See 673 F.3d at 910 (discussing the plaintiff’s allegations concerning AT&T’s “SG3 Secure Room” and “particular electronic communications equipment” at the company’s “Folsom Street” facility in San Francisco). Although the details she alleged were quite colorful, they differ in degree, not in kind from Schuchardt’s averments. In both cases, the parties relied on an insider account of the alleged surveillance program at issue—Schuchardt on a former NSA contractor, and Jewel on a former AT&T telecommunications technician. Those insiders in turn have relied either on documentary evidence allegedly produced by the Government itself, or their personal experiences in executing the surveillance program.
10 SIGAD stands for the term “Signals Intelligence Activity Designator,” which “is an alphanumeric designator that identifies a facility used for collecting Signals Intelligence (SIGINT).” Laura K. Donohue, Section 702 and
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Finally, the pleaded facts support Schuchardt’s allegation that the scope of PRISM’s data collection encompasses his personal email. The NSA presentation identifies specific companies participating in the PRISM program, and indicates that NSA analysts receive the content of emails collected as part of the program. Schuchardt alleged that he uses email services provided by two of those companies—Google and Yahoo—so we need not speculate about whether Schuchardt’s own communications were captured because he specified the scope of PRISM’s dragnet with enough “factual matter” to make additional inferential leaps unnecessary. See Klayman, 800 F.3d at 559 (opinion of Brown, J.) (permitting the inference that the bulk telephone metadata program under Section 215 encompassed the plaintiff’s communications in light of facts alleging “the government’s efforts to ‘create a comprehensive metadata database.’”).
3
The Government raises three principal arguments challenging the plausibility of Schuchardt’s PRISM allegations. First, it argues that Clapper and its application by the D.C. Circuit in Klayman require us to find his allegations implausible. We disagree.
Two aspects of Clapper distinguish it from this case. First, because the Clapper plaintiffs raised a facial constitutional challenge to Section 702 on the day the statute was enacted, they pleaded only prospective injury, i.e.,
the Collection of International Telephone and Internet Content, 38 Harv. J. L. & Pub. Pol’y 117, 119 n.3 (2015).
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“potential future surveillance.” See 133 S. Ct. at 1150. And because that “potential” relied on a “speculative chain of possibilities,” the Supreme Court concluded that they had failed to satisfy the imminence and traceability elements of injury-in-fact under Article III. Here, in contrast, Schuchardt’s alleged injury has already occurred insofar as he claims the NSA seized his emails. It is therefore not surprising that the Government has been unable to formulate an analogous “speculative chain” that would doom Schuchardt’s constitutional standing.
Another critical distinction between this case and Clapper is that the district court entered summary judgment, a procedural posture that required the plaintiffs to identify a triable issue of material fact supported by an evidentiary record. See id. at 1146, 1149. In contrast, Schuchardt sought to avoid dismissal in a facial jurisdictional challenge raised under Rule 12(b)(1), which requires him only to state a plausible claim, a significantly lighter burden. This distinction in the standard of review is also reflected in cases concerning national security surveillance from our sister courts. Compare ACLU, 785 F.3d at 800 (plaintiffs had standing on motion to dismiss); Jewel, 673 F.3d at 906–07 (same), with Klayman, 800 F.3d at 568 (opinion of Williams, J.) (plaintiffs lacked standing to pursue preliminary injunction because there was no “substantial likelihood” that they could establish injury-infact, observing that summary judgment imposes a “lighter burden” than the “substantial likelihood of success” necessary to obtain a preliminary injunction); ACLU v. NSA, 493 F.3d 644, 650–51, 667–70 (6th Cir. 2007) (plaintiffs failed to establish injury-in-fact on summary judgment because they had “no evidence” on various points of causation). Here, Schuchardt has gone beyond mere allegations to survive a
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motion to dismiss by creating a limited evidentiary record to support his allegations.
The Government’s reliance on Klayman is also misplaced. There, the D.C. Circuit vacated the district court’s preliminary injunction, holding that the plaintiffs had failed to demonstrate a substantial likelihood of success on the merits. See 800 F.3d at 561. However, the panel split on the issue of the plaintiffs’ standing, and also disagreed on whether to remand the case for further proceedings or outright dismissal. See id. at 564 (opinion of Brown, J.) (plaintiffs had satisfied “the bare requirements of standing,” remanding for jurisdictional discovery); id. at 565 (opinion of Williams, J.) (plaintiffs lacked standing to seek preliminary injunction, remanding for jurisdictional discovery); id. at 569 (opinion of Sentelle, J.) (plaintiffs lacked standing vel non, remanding with order to dismiss). Under these circumstances, it seems clear to us that Klayman’s persuasive force is minimized by its splintered reasoning, different procedural posture, and the fact that the D.C. Circuit addressed itself to a now-defunct surveillance program authorized by a separate provision of FISA. Accordingly, neither Clapper nor Klayman supports the Government in this case.
Second, the Government contends that Schuchardt’s allegations “say at most that the government may have the capability to seize and store most electronic communications,” but “[t]hey do not say that the government is searching or seizing most, let alone all, e-mail.” Gov’t Br. 21. We agree that Schuchardt’s alleged facts—even if proven—do not conclusively establish that PRISM operates as a dragnet on the scale he has alleged. The language of the leaked materials Schuchardt relies on is imprecise. The use of the term “direct” in the NSA’s presentation could mean, for
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example, that the Government has complete discretion to search all electronic information held by a company participating in PRISM at will; this would certainly be consistent with the “real-time” interception capability that the NSA allegedly possesses, and could qualify as an unconstitutional “seizure” of all information stored on the company’s servers. On the other hand, “direct” could mean that the Government merely has the legal authority to compel participating companies to turn over “communications that may be of foreign-intelligence value because they are . . . associated with the e-mail addresses that are used by suspected foreign terrorists.” Gov’t Br. 22. In that scenario, it is implausible that Schuchardt’s communications would be targeted by PRISM.
At this early stage of litigation, however, Schuchardt is entitled to any inference in his favor that may be “reasonably” drawn from his pleaded facts. See, e.g., King Drug Co. of Florence, Inc. v. SmithKline Beecham Corp., 791 F.3d 388, 398 n.11 (3d Cir. 2015) (citing Iqbal, 556 U.S. at 678–79). And as we have explained, the inference that PRISM “collects all or substantially all of the e-mail sent by American citizens,” App. 82, is one supported by his pleaded “factual matter.” Accordingly, in this procedural posture, we cannot accept the Government’s preferred inference.
Finally, the Government disputes the notion that PRISM is a dragnet, i.e., that it is “based on the indiscriminate collection of information in bulk.” See Gov’t Br. 22 (quoting PCLOB Report at 111). According to the Government, “the program consists entirely of targeting specific persons that may be of foreign-intelligence value because they are, for example, associated with the e-mail
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addresses that are used by suspected foreign terrorists.” Id. Under this view, to intercept communications using PRISM:
Analysts first identify a non-U.S. person located outside the United States who is likely to communicate certain types of foreign intelligence information, such as an individual who belongs to a foreign terrorist organization or facilitates its activities. Analysts also attempt to identify a means by which this foreign target communicates, such as an e-mail address, or a telephone number; any such address, number, or other identifier is known as a “selector.” PRISM collection occurs when the government obtains from telecommunications providers . . . communications sent to or from specified selectors.
Gov’t Br. 6–7 (internal citations omitted).
Several commentators11 and the few courts12 that have examined PRISM appear to agree with the Government’s
11 See, e.g., Donohue, supra note 8, at 119 n.2 (“Once foreign intelligence acquisition has been authorized under Section 702, the government sends written directives to electronic communication service providers compelling their assistance in the acquisition of communications.” (quoting PCLOB Report at 7)); Nathan Alexander Sales, Domesticating Programmatic Surveillance: Some Thoughts on the NSA Controversy, 10 I/S: J. L. & Pol’y for Info. Soc’y 523, 526 (2014) (“[In] PRISM . . . the NSA targets specific non-Americans who are reasonably believed to be located outside the country, and also engages in bulk collection of
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view of the program’s “targeted” nature. So too has the PCLOB, whose report on PRISM the Government has asked us to consider. See PCLOB Report at 33–34. These authorities are substantial, and if correct, would tend to
some foreign-to-foreign communications that happen to be passing through telecommunications infrastructure in the United States.”). The Washington Post also amended its initial report on PRISM to suggest that “imprecision on the part of the NSA” in the wording of its presentation left open the possibility that PRISM collection still required the agency to request materials from the participating companies, rather than directly from the companies’ servers. See Jonathan Hall, Washington Post Updates, Hedges on Initial PRISM Report, Forbes (June 7, 2013, 9:08 PM), https://perma.cc/7L6AH22D.
12 See, e.g., United States v. Hasbajrami, 2016 WL 1029500, at *6 (E.D.N.Y. Mar. 8, 2016) (“In PRISM collection, the government identifies the user accounts it wants to monitor and sends a ‘selector’—a specific communications facility, such as a target’s email address or telephone number—to the relevant communications service provider. A government directive then compels the communications service provider to give it communications sent to or from that selector (i.e., the government ‘tasks’ the selector).” (internal citations omitted)); Wikimedia Found. v. NSA, 143 F. Supp. 3d 344, 348–49 (D. Md. 2015) (“Under a surveillance program called ‘PRISM,’ U.S.-based Internet Service Providers furnish the NSA with electronic communications that contain information specified by the NSA.”).
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undermine Schuchardt’s ability to show that his own electronic communications were seized by the PRISM program.
The problem for the Government at this stage is that the scope of materials that a court may consider in evaluating a facial jurisdictional challenge raised in a motion under Rule 12(b)(1) is not unconstrained. As with motions under Rule 12(b)(6), the court is limited to the four corners of the complaint, “document[s] integral to or explicitly relied upon in the complaint,” and “any undisputedly authentic document that a defendant attaches . . . if the plaintiff’s claims are based on the document.” In re Asbestos Prods. Liability Litig. (No. VI), 822 F.3d 125, 133 & n.7 (3d Cir. 2016) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)). Schuchardt’s pleadings are in no way “based on” any countervailing authorities that support the Government’s position, nor are those authorities integral to or explicitly relied upon by his complaint—accordingly, we must ignore their persuasive value, whatever it may be, at this stage of the litigation. See Gould Elecs., 220 F.3d at 176. Likewise, insofar as the Government’s arguments present new information disagreeing with the factual premises underlying Schuchardt’s claims, we cannot consider them in this facial jurisdictional challenge, the sole purpose of which is to test the legal sufficiency of the plaintiff’s jurisdictional averments. Instead, disagreements concerning jurisdictional facts should be presented in a factual challenge, at which time the court, after allowing the plaintiff “to respond with evidence supporting jurisdiction,” may fully adjudicate the parties’ dispute, including the resolution of any questions of fact. Id. at 177.
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V
Our decision today is narrow: we hold only that Schuchardt’s second amended complaint pleaded his standing to sue for a violation of his Fourth Amendment right to be free from unreasonable searches and seizures. This does not mean that he has standing to sue, as the Government remains free upon remand to make a factual jurisdictional challenge to Schuchardt’s pleading. In anticipation of such a challenge, we provide the following guidance to the District Court on remand.
Schuchardt has suggested that he is entitled to jurisdictional discovery. See Transcript of Oral Argument at 40–41, Schuchardt v. Obama, No. 15-3491 (3d Cir. May 17, 2016). We leave that question to the District Court’s discretion with the caveat that “jurisdictional discovery is not available merely because the plaintiff requests it.” Lincoln Benefit Life Ins. Co. v. AEI Life, LLC, 800 F.3d 99, 108 n.38 (3d Cir. 2015). Jurisdictional discovery is not a license for the parties to engage in a “fishing expedition,” id., and that fact is particularly true in a case like this one, which involves potential issues of national security. In this very context, the Supreme Court has cautioned that jurisdictional discovery— even if conducted in camera—cannot be used to probe the internal (and most likely classified) workings of the national security apparatus of the United States. See Clapper, 131 S. Ct. at 1149 n.4 (“[T]his type of hypothetical disclosure proceeding would allow a terrorist (or his attorney) to determine whether he is currently under U.S. surveillance simply by filing a lawsuit challenging the Government’s surveillance program.”). For that reason, the District Court should take care to circumscribe the scope of discovery and
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any ex parte and in camera procedures to only the factual questions necessary to determine its jurisdiction.13
Finally, nothing in our opinion should be construed to preclude the Government from raising any applicable privileges barring discovery—including the state secrets doctrine—or to suggest how the District Court should rule on any privilege the Government may choose to assert. See United States v. Reynolds, 345 U.S. 1, 10 (1953).
* * * For the stated reasons, we will vacate the District Court’s order dismissing Schuchardt’s second amended complaint and remand for proceedings consistent with this opinion.
13 For example, the linchpin of Schuchardt’s standing is his allegation that PRISM collects “all or substantially all of the e-mail sent by American citizens.” The District Court may wish to consider what discovery is necessary for it to adjudicate the veracity of that allegation while permitting Schuchardt an adequate evidentiary response. See also Jewel v. NSA, 2015 WL 545925, at *4 (N.D. Cal. Feb. 10, 2015) (holding that plaintiffs had failed to establish their standing to challenge Upstream, another putative NSA electronic surveillance program, because “the evidence at summary judgment [was] insufficient to establish that the Upstream collection process operates in the manner in which Plaintiffs allege[d] it does”).
37

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ELLIOTT SCHUCHARDT,
Plaintiff, v.
DONALD J. TRUMP, et al.,
Defendants.

)

)

)

)

Civil Action No. 14-705

)

)

Judge Cathy Bissoon

)

)

)

)

ORDER Defendants’ renewed Motion to Dismiss (Doc. 57) for lack of standing will be granted. The parties are well-acquainted with the underlying facts and arguments in this case; including the Court of Appeals for the Third Circuit’s Opinion and instructions on remand. The only issue is: has Plaintiff plausibly shown, under the factual-challenge-to-standing paradigm (as opposed to facial), that the government captured his information through dragnet-type data collection. The Circuit Court specifically held that Plaintiff’s “alleged facts − even if proven – do not conclusively establish that PRISM operates as a dragnet on the scale he has alleged.” Doc. 38 at 31. The Court acknowledged that the “[s]everal commentators and . . . few courts” to “have examined PRISM appear to agree with the Government’s view of the program’s ‘targeted’ nature.” Id. at 32-33. It envisioned the government renewing its standing-challenge, this time factually as opposed to facially; and it raised the prospect of jurisdictional discovery, and the relevant-considerations attendant thereto. Rather than engage in jurisdictional discovery, the parties agreed that the government would make an informal informational-disclosure; and Plaintiff contemplated that he might be

thus-satisfied, rendering additional litigation unnecessary. Ultimately, however, Plaintiff remained unconvinced, and Defendants have renewed their Motion to Dismiss.
Nowhere in opposition does Plaintiff complain that he was denied a fair opportunity to marshal evidence to contradict the government’s record. Rather, he has enlisted the efforts of two purported “experts,” Messrs. Binney and Wiebe (who are no strangers to this litigation). These individuals have not worked for the NSA since 2001, and their affidavits rely on the same categories of materials that already were before the District and Circuit Courts the first time around.
A current evaluation of Plaintiff’s claims is heavily-influenced by the context and legal framework now applicable. Given that the standing-inquiry has shifted from a facial challenge to a factual one, Plaintiff carries the burden, and the standard is a preponderance-of-the-evidence. ACE Amer. Ins. Co. v. Guerriero, 738 Fed. Appx. 72, 76 (3d Cir. June 20, 2018); accord GBForefront, L.P. v. Forefront Mgmt. Grp., LLC, 888 F.3d 29, 35 (3d Cir. 2018) (cited and relied upon in ACE American).
Defendants have shown, by a preponderance of the evidence, that the government did not engage in dragnet-type collection activity – as discussed by the Circuit Court − thereby establishing a plausible claim that Plaintiff’s data was captured. In support of this conclusion, the Court incorporates by reference, as if fully restated, the evidence and arguments recited in Defendants’ opening and reply briefs (Docs. 58 & 73).
The court need not delve into the niceties of the various individual evidentiary-challenges raised by Defendants, as relates to Plaintiff’s materials. Even permitting all of Plaintiff’s evidence − which, by the time of his current briefing, is restricted to the recent affidavits of
2

Messrs. Binney and Wiebe1 – Defendant’s positions carry the day under the preponderance-ofthe evidence standard (a conclusion that should not be entirely surprising, given the language of the Circuit Court’s Opinion).
This Court sees little benefit to rehashing the arguments and factual recitations in Defendants’ briefing, which are meticulous and already have been incorporated by reference. The Court does offer, though, these additional overarching observations. Plaintiff’s new affidavits, in large part, rely on the same underlying evidence already before this Court and the Circuit. What new documents are referenced − even assuming their authenticity and admissibility – do not tip the scales under the preponderance of the evidence standard. See Defs.’ Reply (Doc. 73) at 3-4 (explaining why the new documents still do not demonstrate dragnet-collection, as alleged by Plaintiff). More generally, the notion that Plaintiff can take largely the same evidence; filter it through the mouthpiece of purported experts (with modest embellishment); and hope to satisfy his burdens under the presently-applicable standards; seems rather weak tea, given the Circuit Court’s discussions.
While this Court questions-not Plaintiff’s sincerity and passion, his post-remand efforts, candidly, are somewhat underwhelming. Perhaps the limitations say less of Plaintiff’s efforts than an inconvenient-reality – in light of the record now before the Court, PRISM has not been shown to be the dragnet-type collection mechanism suggested. There really is not much more to be said.
The Court appreciates the candor and reasonableness with which Plaintiff has approached the remand. See discussion supra (noting Plaintiff’s willingness to keep an open mind regarding
1 See Pl.’s Opp’n Br. (Doc. 68) at 10-11 (declining to resist Defendants’ arguments regarding the non-competence of evidence “previously filed in this case,” because Plaintiff now is relying on his “two new affidavits”) (emphasis in original).
3

continued-pursuit of this litigation, depending on what the government ultimately presented). Hopefully, he can close this chapter feeling that his civic-duty has been met, to the fullest of his abilities; and that his overall objectives have been achieved. Cf. Defs.’ Br. (Doc. 58) at 10 (by the time of remand, Plaintiff’s claims regarding the bulk collection of telephone metadata were mooted by the passage of the USA FREEDOM Act; he had no claim for money damages; and all that remained was his claim for injunctive relief based on the government’s alleged bulk collections under PRISM).2
For all of the reasons stated herein, Defendants’ renewed Motion to Dismiss (Doc. 57) is GRANTED, and a judgment order under Rule 58 will issue contemporaneously herewith.
IT IS SO ORDERED.

February 4, 2019
cc (via ECF email notification): All Counsel of Record

s/Cathy Bissoon Cathy Bissoon United States District Judge

2 This Court takes comfort in knowing that the legislature has imposed measures of accountability, as relates to the programs-in-question, including PRISM. See id. at 15-16 (discussing the Privacy and Civil Liberties Oversight Board’s Report, which supports the government’s evidence that PRISM achieves targeted, not dragnet-type, data collection).
4

 
 Case 2:14-cv-00705-CB Document 83-2 Filed 04/23/20 Page 1 of 14
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________
No. 19-1366 ________________
ELLIOTT J. SCHUCHARDT, individually and doing business as the Schuchardt Law Firm, on behalf of himself and all others similarly situated,
Appellant
v.
PRESIDENT OF THE UNITED STATES OF AMERICA; DIRECTOR OF NATIONAL INTELLIGENCE;
DIRECTOR OF THE NATIONAL SECURITY AGENCY AND CHIEF OF THE CENTRAL SECURITY SERVICE;
DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION
________________
Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 2-14-cv-00705) District Judge: Honorable Cathy Bissoon ________________
Argued September 23, 2019
Before: McKEE, AMBRO, and ROTH, Circuit Judges
(Opinion filed: March 2, 2020)
Elliott J. Schuchardt (Argued) 6223 Highland Place Way Suite 201 Knoxville, TN 37919
Counsel for Appellant

Case 2:14-cv-00705-CB Document 83-2 Filed 04/23/20 Page 2 of 14

Joseph H. Hunt Assistant Attorney General
Scott W. Brady United States Attorney
Joseph F. Busa (Argued) H. Thomas Byron III United States Department of Justice Civil Division, Appellate Staff 7537 950 Pennsylvania Avenue, N.W. Washington, DC 20530

Counsel for Appellees

________________

AMBRO, Circuit Judge

OPINION* ________________

Elliott J. Schuchardt alleges that the bulk data collection programs of the National

Security Agency (“NSA”) under the Foreign Intelligence Surveillance Act (“FISA”), 50

U.S.C. § 1801 et seq., violate the Fourth Amendment because they allow the Government

to intercept, access, monitor, and store all or substantially all U.S. domestic e-mail

without probable cause. Pl.’s App. 138–67. He filed suit in 2014 against the President of

the United States, the Director of National Intelligence, the Director of the NSA, and the

Director of the Federal Bureau of Investigation (“FBI”). After the District Court

dismissed Schuchardt’s suit for lack of facial standing under Federal Rule of Civil

Procedure 12(b)(1), we reversed. See Schuchardt v. President of the U.S. (“Schuchardt

I”), 839 F.3d 336 (3d Cir. 2016).

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.
2

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In a facial attack, we review only “the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff.” Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). However, if the defendant contests the pleaded jurisdictional facts, “the court must permit the plaintiff to respond with evidence supporting jurisdiction.” Id. at 177 (citing Int’l Ass’n of Machinists & Aerospace Workers v. Nw. Airlines, Inc., 673 F.2d 700, 711–12 (3d Cir. 1982)).
On remand, the District Court held that Schuchardt failed to rebut the evidence the Government submitted to challenge his factual standing. We agree and thus affirm the District Court’s ruling.
A. Procedural Background Schuchardt specifically alleged that the NSA operates a program known as PRISM through which it collects “massive quantities of e-mail and other data created by [U.S.] citizens” “directly from the servers” of U.S. service providers like Google, Microsoft, Yahoo, Facebook, Dropbox, and Apple. Pl.’s App. 145. As “a consumer of various types of electronic communication, storage, and [I]nternet-search services” of those service providers, id. at 156, Schuchardt further asserted that the Government “obtained direct access to the servers” of the providers and was “intercepting, accessing, monitoring and/or storing [his] private communications . . . .” Id. at 145, 156, 158.1
1 The Government argues that this case is about PRISM and not other programs. Gov’t Br. 27–31. That question was never squarely before the District Court. Nor is it before us. The Government did not argue on remand that Schuchardt was not permitted to submit non-PRISM evidence, and in fact itself submitted evidence that goes beyond
3

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Schuchardt supplemented his complaint with two categories of exhibits. First, he submitted reports from the Washington Post and Guardian newspapers about classified documents leaked by former NSA contractor Edward Snowden, as well as excerpts of the materials themselves. These exhibits refer to an NSA program engaged in the bulk collection of domestic e-mail metadata. Id. at 91–131. Several of the documents appear to be internal NSA slides. One is titled “Dates When PRISM Collection Began For Each Provider,” and lists dates when several service providers began collection. Another slide, “New Collection Posture,” includes slogans such as “Exploit it All.” Id. at 109–10.
The second category of documents Schuchardt attached contained affidavits filed in support of the plaintiffs in Jewel v. NSA, 965 F. Supp. 2d 1090 (N.D. Cal. 2013), a separate case challenging the NSA’s interception of internet traffic. Id. at 1098. The affidavits were of former NSA employees William E. Binney, Thomas A. Drake, and J. Kirk Wiebe, who asserted that after September 11, 2001, the agency developed an expansive view of its own surveillance authority. Pl.’s App. 186–219. Binney stated that he was the creator of the technology the Government uses today to conduct large-scale data collection, and that members of his team told him the Government implemented intelligence activities after September 11 known as the President’s Surveillance Program that involved the collection of domestic e-mails without the privacy protections built into other NSA programs. Id. at 187–88.
PRISM. See Gov’t’s Add. A; Gov’t’s Add. B. Schuchardt correctly points out that his complaint is broad enough to include programs beyond PRISM. Schuchardt Reply 12.
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The District Court dismissed in 2015 Schuchardt’s complaint for lack of standing. A Rule 12(b)(1) motion under the Federal Rules of Civil Procedure to dismiss for lack of subject matter jurisdiction may be treated as either a facial or factual challenge. See Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977).
The District Court concluded, for facial challenge purposes, that Schuchardt had “identified no facts from which [it] reasonably might infer that [the plaintiff’s] own communications have been targeted, seized or stored.” Pl.’s App. 14–24. As noted, we reversed in 2016 and concluded that his allegations “plausibly stated an injury in fact personal to” him “as a facial matter.” Schuchardt I, 839 F.3d at 338. Thus we considered the exhibits Schuchardt submitted and afforded his pleadings the presumption of truth. Though the Government disputed Schuchardt’s allegations and submitted evidence, we could not, on a facial attack, consider its submissions. Id. at 346, 352–53. Finally, we noted that the Government was “free upon remand to make a factual jurisdictional challenge to Schuchardt’s pleading.” Id. at 353.
On remand, the parties agreed that, rather than engage in discovery as to jurisdiction, the Government would make an informal information disclosure; if Schuchardt was not satisfied, he could resume the litigation. The District Court directed Schuchardt to inform it “whether or not this case w[ould] be dismissed based on the information provided . . . .” Pl.’s App. 10. Thereafter, Schuchardt did not make any discovery or extension requests. The Government filed a renewed motion to dismiss, and Schuchardt filed a response relying on new affidavits from Binney and Wiebe. Id. at 63–
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66. Schuchardt conceded at oral argument that he did not make any discovery or extension requests nor ask for a hearing to qualify Binney and Wiebe as experts.
The District Court issued an order in February 2019 dismissing Schuchardt’s case for lack of standing on a factual challenge. Pl.’s App. 63. It concluded that the Government showed that it “did not engage in dragnet-type collection activity,” and in support of that conclusion it incorporated “by reference, as if fully restated, the evidence and arguments recited in [the Government’s] opening and reply briefs.” Id. at 64. Moreover, the documents Schuchardt submitted were inadmissible and did not create a factual dispute as to his standing. The Court went on to state that, “[e]ven permitting all of [Schuchardt’s] evidence—which . . . [was] restricted to the recent affidavits of [] Binney and Wiebe,” and the documents attached thereto, the Government’s “positions carry the day.” Id. at 64–65. Schuchardt’s “post remand efforts” were “underwhelming” and merely amounted to taking the same evidence previously before the District Court and “filter[ing] it through the mouthpiece of purported experts.” Id. at 65.2
B. Jurisdiction and Standard of Review The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction per 28 U.S.C. § 1291. “When reviewing an order dismissing a claim for lack of subject matter jurisdiction, we exercise plenary review over legal conclusions and review findings of fact for clear error.” Adorers of the Blood of Christ v. Fed. Energy Reg.
2 Because it incorporated the Government’s briefs in their entirety, we discuss the evidence and arguments therein as the Court’s own decision. We nonetheless note that the wholesale adoption of one side’s briefs is a practice we discourage. See In re Complaint of Luhr Bros., Inc., 157 F.3d 333, 338 (5th Cir. 1998); Walton v. United Consumers Club, Inc., 786 F.2d 303, 313–14 (7th Cir. 1986).
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Comm’n, 897 F.3d 187, 193 (3d Cir. 2018) (citation omitted). We review the District Court’s evidentiary findings for abuse of discretion. “In order to justify reversal, a district court’s analysis and resulting conclusion must be arbitrary or irrational.” United States v. Bailey, 840 F.3d 99, 117 (3d Cir. 2016) (citation and quotation marks omitted).3
C. Rule 12(b)(1) Factual Challenge On a Rule 12(b)(1) factual challenge, the plaintiff has the burden of proof, Mortensen, 549 F.2d at 891, and the burden of persuasion, Gould Elecs Inc., 220 F.3d at 178. Thus “a 12(b)(1) factual challenge strips the plaintiff of the protections and factual deference provided under 12(b)(6) review” for a typical motion to dismiss on the merits, Hartig Drug Co. Inc. v. Senju Pharm. Co. Ltd., 836 F.3d 261, 268 (3d Cir. 2016) (emphasis added) (citation omitted), and under facial 12(b)(1) review, see CNA v. United States, 535 F.3d 132, 139 (3d Cir. 2008). It is true that a “[j]urisdictional finding of genuinely disputed facts is inappropriate when the jurisdictional issue and substantive issues are so intertwined that the question of jurisdiction is dependent on the resolution of factual issues going to the merits of an action.” Davis v. Wells Fargo, 824 F.3d 333, 348 (3d Cir. 2016) (citation omitted). When a case raises a disputed factual issue that goes both to the merits and jurisdiction,
3 Schuchardt devoted much of his brief to the merits of this case. Schuchardt Br. 43–55. The District Court did not reach the merits, as it dismissed on a Rule 12(b)(1) motion. Accordingly, we do not consider his arguments as to the merits. Schuchardt also cited for the first time in his opening brief to non-record evidence (for example, a statement by a government scientist) that every e-mail sent in the United States goes into a Government database. Schuchardt Br. 22, 38. With rare exceptions not in play here, we will not consider evidence outside the record. See Reed v. Phila. Bethlehem & New England R.R. Co., 939 F.2d 128, 133 (3rd Cir. 1991).
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district courts must “demand less in the way of jurisdictional proof than would be appropriate at a trial stage.” Mortensen, 549 F.2d at 892. Although we have not defined the contours of the “less in the way of jurisdictional proof” standard, we have held that “[b]ecause at issue in a factual 12(b)(1) motion is the trial court’s jurisdiction[,] its very power to hear the case[,] there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Id. at 891. “The form of the inquiry is flexible . . . : ‘As there is no statutory direction for procedure upon an issue of jurisdiction, the mode of its determination is left to the trial court.’” Id. at 891 n.16 (quoting Gibbs v. Buck, 307 U.S. 66, 71–72 (1939)).
This is not a case where Schuchardt presented competent evidence that the District Court discounted or where it weighed competing evidence presented by the Government and Schuchardt.4 The Court considered the evidence the Government submitted to challenge Schuchardt’s standing, stated that the burden of proof was on Schuchardt, gave him an opportunity to be heard, and considered his submissions in detail. On this record, the Court held that he did not create a dispute of material fact as to his standing. See CNA, 535 F.3d at 144–46 (affirming dismissal where plaintiffs were heard on the jurisdictional issue but failed to present evidence creating a factual dispute as to subject matter jurisdiction). It did not err by considering the admissibility of Schuchardt’s submission, as required expressly by some Circuits. See McPhail v. Deere & Co., 529
4 This is also not a case where the Government refused to turn over discovery related to its intelligence-gathering activities. Schuchardt made no discovery requests, and the Court did not rule on any applicable national security privileges.
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F.3d 947, 954 (10th Cir. 2008); Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 540, 542 (7th Cir. 2006).
D. The District Court’s Evidentiary Rulings Thus we turn to the evidentiary rulings of the District Court. It held that the documents Schuchardt submitted on remand were unauthenticated and contained hearsay, and that Binney and Wiebe’s opinions did not meet the reliability requirements for admission of expert testimony. Gov’t’s Add. A 8–9, 25–26; Gov’t’s Add. B 6–7.5 The Court considered Schuchardt’s lack of evidence in light of the Government’s admissible submission and concluded that Schuchardt failed to meet his burden of proof.
1. Schuchardt Presented Unauthenticated Documents. A party seeking to rely on a piece of evidence must offer proof sufficient to support a finding that the item is what that party claims it to be. Fed. R. Evid. 901(a); United States v. Browne, 834 F.3d 403, 408 (3d Cir. 2016). That evidence “must itself be admissible.” In re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238, 285 (3d Cir. 1983). As for the purported NSA slides, Pl.’s App. 108–13, Schuchardt did not explain what they were, other than describing them as the “Snowden documents,” Gov’t’s Add. A 8–9, 25–26. The District Court could only speculate about what they were. The origin and nature of the new documents attached to Binney’s affidavit on remand were equally dubious. The new documents included maps showing “tap points” where the NSA
5 The Government inaccurately argues that Schuchardt’s opening brief failed to address the evidentiary holdings. Gov’t Br. 23. Schuchardt did argue, if summarily, that the Court understated Binney’s expertise and that he could have authenticated the documents. Schuchardt Br. 30–33.
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connects into service providers’ networks and slides explaining collection. Pl.’s App. 244–47. Schuchardt argues that Binney and Wiebe authenticated the documents in their affidavits, Schuchardt Reply 6, because those documents related to programs they created and worked on, Pl.’s App. 231, and because Binney obtained them from publications, which in turn allegedly got the documents from Snowden, id. at 232. The Court correctly rejected this argument because Binney claimed no personal knowledge that the documents he obtained from the publications were those allegedly misappropriated by Snowden. Gov’t’s Add. B 6–7. Neither Binney nor Wiebe claimed he created the documents or to know who did.
Schuchardt’s argument that the Snowden documents were authenticated by the Government’s admissions that Snowden misappropriated documents also fails. Any general admissions by Government officials that Snowden stole documents did not authenticate the specific documents Schuchardt submitted to the Court. See ACLU v. U.S. Dep’t of State, 878 F. Supp. 2d 215, 224 (D.D.C. 2012). Hence there was no abuse of discretion in ruling that those documents were not properly authenticated.
2. Schuchardt Presented Evidence Based on Hearsay. Hearsay is any statement, other than one made by a declarant while testifying at the trial or hearing, “offer[ed] in evidence to prove the truth of the matter asserted.” Fed. R. Evid. 801. It is generally inadmissible as evidence. See United States v. Pelullo, 964 F.2d 193, 203 (3d Cir. 1992). The District Court concluded that the NSA slides “constitute written out-of-court statements regarding PRISM’s operation that [Schuchardt] offers for the truth of the matters asserted,” and are inadmissible hearsay.
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Gov’t’s Add. A 26. It reached the same conclusion regarding the new documents attached to Binney’s affidavit because Binney claimed no personal knowledge of the documents and obtained them from journalists, who allegedly obtained them from Snowden, so that “[e]ach link in this chain of custody is . . . predicated on . . . hearsay.” Gov’t’s Add. B 6–7. As for the newspaper articles and editorials, the Court held that they too were hearsay. Schuchardt offered no substantial argument why these materials were subject to a hearsay exception. We accordingly affirm the District Court in barring them.
3. Schuchardt Failed to Qualify His Expert Witnesses. Federal Rule of Evidence 702 governs the use of expert testimony in federal courts and imposes three threshold considerations: qualifications, reliability, and fit. See In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741–43 (3d Cir. 1994). An expert witness must have specialized expertise or knowledge. See id. at 741. Though we construe the specialized knowledge requirement liberally, “at a minimum, a proffered expert witness . . . must possess skill or knowledge greater than the average layman . . . .” Waldorf v. Shuta, 142 F.3d 601, 625 (3d Cir. 1998). District courts perform a screening function, typically called a Daubert hearing, to ensure that evidence presented is, among other things, reliable. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993). It is so if “based on the ‘methods and procedures of science’ rather than on ‘subjective belief or unsupported speculation . . . .’” Paoli, 35 F.3d at 742 (citation omitted). Rule 703 permits experts to rely on hearsay so long as it is of the kind normally employed by experts in the field. See In re TMI Litig., 193 F.3d 613, 697 (3d Cir. 1999). However,
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the trial judge must conduct an independent evaluation of the reasonableness of relying on the type of data underlying the opinion. See Paoli, 35 F.3d at 748.
Binney stated in his affidavit that he “was the primary designer and developer of a number of programs designed to acquire and analyze very large amounts” of information from the “Internet” before leaving the NSA in 2001. Pl.’s App. 228–29. He continues to serve as a consultant to foreign governments on intelligence collection and has testified before foreign government agencies. Id. at 240. According to Binney, after the September 11 attacks the NSA’s surveillance program changed to allow indiscriminate bulk data collection, and the President’s Surveillance Program thereafter involved the “collection of the full content of domestic e-mail traffic.” Id. at 230. Binney based his conclusions on “the highly-detailed information contained in the documents leaked by [Snowden].” Id. at 231. Binney stated that “[t]he documents provided by Mr. Snowden are the type of data that experts in the intelligence community would typically and reasonably rely upon . . . .” Id. at 232. Wiebe submitted a two-page affidavit agreeing with Binney’s assessment based on his review of the same documents. Id. at 249–54.
The District Court concluded that Binney and Wiebe were not qualified to testify as experts. Neither identified or described the field of “scientific, technical, or other specialized knowledge” in which he is purportedly an expert. Gov’t Add. B 9. Wiebe did not discuss the exhibits at all in his affidavit, and Binney did not explain how the exhibits led him to reach his conclusions. Id. at 9–10. The Court therefore could not determine whether their conclusions were based on reliable principles and methods. It also discounted Schuchardt’s argument that the affidavits were admissible under Rule
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703 based on Binney’s assertion that the Snowden documents are the “type of data that experts in the intelligence community would typically and reasonably rely upon.” Id. at 10 n.7.6 That assertion provided no basis for the Court to conduct an independent evaluation into reasonableness. Id. Moreover, Schuchardt did not request a Daubert hearing or submit evidence regarding Binney and Wiebe’s field of expertise or their methodologies. Accordingly, the Court did not abuse its discretion in barring their testimony as experts.
4. The Government’s Evidence Contrast Schuchardt’s lack of competent evidence against the admissible submissions by the Government. These included a sworn declaration from Wayne Murphy, the Director of Operations at the NSA, who was “responsible for . . . managing the integration and use of the NSA’s global foreign intelligence authorities” and had “personal knowledge” of the matters alleged in Schuchardt’s complaint. Pl.’s App. 173. He stated that “[n]either PRISM nor any other NSA intelligence-gathering activity involves the bulk collection (or storage) of all or substantially all of the e-mail (or other Internet-based communications) of all U.S. persons.” Id. The District Court credited those statements and reasoned that Schuchardt could not show that his communications would have been targeted and collected. Gov’t Add. A 22. The Government also cited other authorities, such as the Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act issued in July 2014 by the
6 The District Court also separately ruled, and we affirm, that Binney and Wiebe could not testify as fact witnesses because they did not claim any personal knowledge of the NSA’s current collection programs. Gov’t’s Add. A 29–31.
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Privacy and Civil Liberties Oversight Board, as well as case law from other Circuits, acknowledging the targeted nature of PRISM, see, e.g., United States v. Mohamud, 843 F.3d 420, 440 (9th Cir. 2016).
* * * * * Because the District Court did not abuse its discretion in concluding that Schuchardt’s evidence was inadmissible and that the Government’s evidence stood uncontroverted, we affirm its ruling that Schuchardt lacked factual standing for his suit.
14

 
 U.S. District Court Western District of Pennsylvania (Pittsburgh) CIVIL DOCKET FOR CASE #: 2:14−cv−00705−CB

CLOSED,DCD

SCHUCHARDT v. OBAMA et al Assigned to: Judge Cathy Bissoon Case in other court: Third Circuit, 15−03491
Third Circuit, 17−01252
Third Circuit, 19−01366 Cause: 28:2201 Declaratory Judgment
Plaintiff
ELLIOTT J. SCHUCHARDT individually and doing business as the Schuchardt Law Firm, on behalf of himself and all others similarly situated

Date Filed: 06/02/2014 Date Terminated: 02/04/2019 Jury Demand: Plaintiff Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant
represented by Elliott J Schuchardt Schuchardt Law Firm 6223 Highland Place Way Suite 201 Knoxville, TN 37919 United Sta (865) 304−4374 Fax: (703) 232−1044 Email: elliott016@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
BARACK H. OBAMA in his capacity as President of the United States

represented by James J. Gilligan United States Department of Justice Civil Division, Federal Programs Branch 1100 L Street, N.W. Room 11200 Washington, DC 20005 202−514−3358 Fax: (202) 616−8470 Email: james.gilligan@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Caroline J. Anderson Department of Justice 20 Massachusetts Avenue Northwest Office 7220 Washington, DC 20001 202−305−8645 Email: Caroline.J.Anderson@usdoj.gov ATTORNEY TO BE NOTICED
Julia A. Berman U.S. Department of Justice, Civil Division, Federal Programs 20 Massachusetts Ave., NW Washington, DC 20001 202−616−8480 Email: julia.berman@usdoj.gov ATTORNEY TO BE NOTICED
Marcia Berman United States Department of Justice 20 Massachusetts Ave., N.W.

Defendant JAMES R. CLAPPER in his official capacity as Director of National Intelligence
Defendant ADM. MICHAEL S. ROGERS in his official capacity as Director of the Natioinal Security Agency and Chief of the Central Security Service

Room 7132 Washington, DC 20530 202−514−2205 Fax: 202−616−8470 Email: marcia.berman@usdoj.gov ATTORNEY TO BE NOTICED
Rodney Patton United States Department of Justice 20 Massachusetts Avenue Washington, DC 20001 202−305−7919 Email: rodney.patton@usdoj.gov ATTORNEY TO BE NOTICED
Timothy A. Johnson United States Department of Justice Civil Division, Federal Programs Branch PO Box 883 Washington, DC 20044 202−514−1359 Fax: 202−616−8470 Email: timothy.johnson4@usdoj.gov TERMINATED: 06/08/2018 ATTORNEY TO BE NOTICED
represented by James J. Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Caroline J. Anderson (See above for address) ATTORNEY TO BE NOTICED
Julia A. Berman (See above for address) ATTORNEY TO BE NOTICED
Marcia Berman (See above for address) ATTORNEY TO BE NOTICED
Rodney Patton (See above for address) ATTORNEY TO BE NOTICED
Timothy A. Johnson (See above for address) TERMINATED: 06/08/2018 ATTORNEY TO BE NOTICED
represented by James J. Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Caroline J. Anderson (See above for address) ATTORNEY TO BE NOTICED
Julia A. Berman

Defendant JAMES B. COMEY in his offical capacity as Director of the Federal Bureau of Investigation
Party JUSTIN CREDICO TERMINATED: 12/27/2016

(See above for address) ATTORNEY TO BE NOTICED
Marcia Berman (See above for address) ATTORNEY TO BE NOTICED
Rodney Patton (See above for address) ATTORNEY TO BE NOTICED
Timothy A. Johnson (See above for address) TERMINATED: 06/08/2018 ATTORNEY TO BE NOTICED
represented by James J. Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Caroline J. Anderson (See above for address) ATTORNEY TO BE NOTICED
Julia A. Berman (See above for address) ATTORNEY TO BE NOTICED
Marcia Berman (See above for address) ATTORNEY TO BE NOTICED
Rodney Patton (See above for address) ATTORNEY TO BE NOTICED
Timothy A. Johnson (See above for address) TERMINATED: 06/08/2018 ATTORNEY TO BE NOTICED
represented by JUSTIN CREDICO #71239066 Federal Detention Center Philadelphia 700 Arch Street P.O. Box 562 Philadelphia, PA 19106 PRO SE

Date Filed 06/02/2014
06/02/2014

# Docket Text
1 COMPLAINT against JAMES R. CLAPPER, JAMES B. COMEY, BARACK H. OBAMA, ADM. MICHAEL S. ROGERS (Filing fee, including Administrative fee, $400, receipt number 3214807), filed by ELLIOTT J. SCHUCHARDT. (Attachments: # 1 Civil Cover Sheet, # 2 Civil Cover Sheet List of Defendants, # 3 Summons President Barack H. Obama, # 4 Summons Adm. Michael S. Rogers, # 5 Summons James B. Comey, Jr., # 6 Summons James R. Clapper) (plh) (Entered: 06/02/2014)
Summons Issued as to *JAMES R. CLAPPER, JAMES B. COMEY, BARACK H. OBAMA, ADM. MICHAEL S. ROGERS* (plh) (Entered: 06/02/2014)

07/28/2014 07/28/2014
08/06/2014 08/06/2014
08/06/2014 08/11/2014 08/11/2014
08/11/2014 08/11/2014 08/11/2014
09/01/2014

2 SUMMONS/Return of Service Returned Executed by ELLIOTT J. SCHUCHARDT. All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Schuchardt, Elliott) Modified on 7/29/2014. (plh) This document removed from public view and redocketed at Doc. # 3 . (Entered: 07/28/2014)
3 SUMMONS/Return of Service Returned Executed by ELLIOTT J. SCHUCHARDT. JAMES R. CLAPPER served on 6/10/2014, answer due 8/11/2014; JAMES B. COMEY served on 6/10/2014, answer due 8/11/2014; BARACK H. OBAMA served on 6/10/2014, answer due 8/11/2014; ADM. MICHAEL S. ROGERS served on 6/10/2014, answer due 8/11/2014. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (plh) (Entered: 07/29/2014)
4 Joint MOTION for Leave to File Excess Pages Joint Motion to Enlarge Page Limitations and Set Briefing Schedule by JAMES R. CLAPPER, JAMES B. COMEY, BARACK H. OBAMA, ADM. MICHAEL S. ROGERS. (Attachments: # 1 Proposed Order) (Berman, Marcia) (Entered: 08/06/2014)
ORDER granting in part and denying in part 4 Motion for Leave to File Excess Pages and for extensions of deadlines. The parties' requests regarding the extension of page limitations are denied, and the parties request for extensions of deadlines are granted. Plaintiff's deadline for responding to Defendants' motion to dismiss is extended until 10/14/14, and Defendants' reply is extended until 11/4/14. Signed by Judge Cathy Bissoon on 8/6/14. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (dcd) (Entered: 08/06/2014)
Set deadlines: Plaintiff's response to motion due by 10/14/14, Defendants' reply due by 11/4/14. See text Order entered today. (dcd) (Entered: 08/06/2014)
5 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , MOTION to Dismiss for Lack of Jurisdiction by JAMES R. CLAPPER, JAMES B. COMEY, BARACK H. OBAMA, ADM. MICHAEL S. ROGERS. (Attachments: # 1 Proposed Order) (Berman, Marcia) Modified on 8/12/2014. (plh) This document removed from public view SEE Doc. # 7 for corrections. (Entered: 08/11/2014)
6 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Brief in Support of Defs.' Motion to Dismiss, MOTION to Dismiss for Lack of Jurisdiction Brief in Support of Defs.' Motion to Dismiss by JAMES R. CLAPPER, JAMES B. COMEY, BARACK H. OBAMA, ADM. MICHAEL S. ROGERS. (Attachments: # 1 Declaration of Marcia Berman, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4) (Berman, Marcia) Modified on 8/12/2014. (plh) This document removed from public view and refiled SEE DOC. # 8 for correction. (Entered: 08/11/2014)
7 MOTION to Dismiss re 1 Complaint pursuant to Rule 12, by JAMES R. CLAPPER, JAMES B. COMEY, BARACK H. OBAMA, ADM. MICHAEL S. ROGERS. (Attachments: # 1 Proposed Order) (plh) (Entered: 08/12/2014)
8 BRIEF in Support re 7 Motion to Dismiss pursuant to Rule 12 filed by JAMES R. CLAPPER, JAMES B. COMEY, BARACK H. OBAMA, ADM. MICHAEL S. ROGERS. (Attachments: # 1 Declaration of Marcia Berman, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4) (plh) (Entered: 08/12/2014)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 5 Motion to Dismiss for Failure to State a Claim, Motion to Dismiss/Lack of Jurisdiction, 6 Motion to Dismiss for Failure to State a Claim, Motion to Dismiss/Lack of Jurisdiction. ERROR: Wrong event selected. CORRECTION: Re−docketed as Motion to dismiss and Brief in Support of Motion. This message is for informational purposes only. (plh) (Entered: 08/12/2014)
9 AMENDED COMPLAINT against All Defendants, filed by ELLIOTT J. SCHUCHARDT. (Attachments: # 1 Exhibit A − Greenwald article about Verizon collection, # 2 Exhibit B − Verizon collection order, # 3 Exhibit C − Greenwald article about Prism data collection, # 4 Exhibit D − Slide showing types of stored communications, # 5 Exhibit E − Slide showing acquisition dates of stored communications, # 6 Exhibit F − Slide showing "collect it all" posture, # 7 Exhibit G − Slide showing goal of "collecting it all", # 8 Exhibit H − Slide showing Skydrive collection, # 9 Exhibit I − Slide showing collection outpacing analysis, # 10 Exhibit J − Guardian article showing Snowden statements about ubiquity of collection, # 11 Exhibit K − Snowden press release about universal collection, # 12 Exhibit L −

09/02/2014 09/02/2014
09/02/2014
09/08/2014 09/08/2014 09/08/2014 10/20/2014 10/20/2014 10/21/2014 10/23/2014 10/23/2014

Lavabit statement) (Schuchardt, Elliott) (Entered: 09/01/2014)
10 NOTICE of Withdrawal of 9 Amended Complaint, by ELLIOTT J. SCHUCHARDT. (Schuchardt, Elliott) (Entered: 09/02/2014)
11 AMENDED COMPLAINT against All Defendants, filed by ELLIOTT J. SCHUCHARDT. (Attachments: # 1 Exhibit A − Greenwald article about Verizon collection, # 2 Exhibit B − Verizon collection order, # 3 Exhibit C − Greenwald article about Prism data collection, # 4 Exhibit D − Slide showing types of stored communications, # 5 Exhibit E − Slide showing acquisition dates of stored communications, # 6 Exhibit F − Slide showing "collect it all" posture, # 7 Exhibit G − Slide showing goal of "collecting it all", # 8 Exhibit H − Slide showing Skydrive collection, # 9 Exhibit I − Slide showing collection outpacing analysis, # 10 Exhibit J − Guardian article showing Snowden statements about ubiquity of collection, # 11 Exhibit K − Snowden press release about universal collection, # 12 Exhibit L − Lavabit statement concerning Defendant access to all of its records) (Schuchardt, Elliott) Modified on 9/3/2014 to edit docket text. (ksa) (Entered: 09/02/2014)
ORDER. The Court hereby orders that Plaintiff's Amended Complaint (Doc. 11 ) shall be treated an amendment as a matter of course under Federal Rule 15(a)(1)(B). Defendants' current Motion to Dismiss (Doc. 7 ), therefore, is denied as moot. Under Fed. R. Civ. P. 15(a)(3), Defendants must respond to the Amended Complaint (Doc. 11 ) by 9/16/14. Finally, the response and reply deadlines regarding the prior Motion to Dismiss are VACATED. Signed by Judge Cathy Bissoon on 9/2/14. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (dcd) Modified on 9/3/2014 to correct typo. (ksa) (Entered: 09/02/2014)
12 Joint MOTION Joint Motion to Set Briefing Schedule re 11 Amended Complaint, filed by ELLIOTT J. SCHUCHARDT by JAMES R. CLAPPER, JAMES B. COMEY, BARACK H. OBAMA, ADM. MICHAEL S. ROGERS. (Attachments: # 1 Proposed Order) (Berman, Marcia) (Entered: 09/08/2014)
ORDER granting 12 Joint Motion to Set a Briefing Schedule. Defendants' renewed Motion to Dismiss is due by 10/20/14; Plaintiff's response is due by 12/8/14; and Defendants' reply is due by 12/22/14. No further extensions will be granted. Signed by Judge Cathy Bissoon on 9/8/14. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (dcd) (Entered: 09/08/2014)
Defendants' renewed motion to dismiss due by 10/20/14; response due by 12/8/14; and reply brief due by 12/22/14. See text Order entered today. (dcd) (Entered: 09/08/2014)
13 MOTION TO DISMISS re: 11 First Amended Complaint by JAMES R. CLAPPER, JAMES B. COMEY, BARACK H. OBAMA, ADM. MICHAEL S. ROGERS. (Attachments: # 1 Proposed Order) (Berman, Marcia) Modified on 10/21/2014. (plh) (Entered: 10/20/2014)
14 BRIEF in Support re 13 Motion to Dismiss re: 11 First Amended Complaint filed by JAMES R. CLAPPER, JAMES B. COMEY, BARACK H. OBAMA, ADM. MICHAEL S. ROGERS. (Attachments: # 1 Declaration of Maj. Gen. Gregg C. Potter, with Exhibit A, # 2 Declaration of Marcia Berman, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3) (Berman, Marcia) Modified on 10/21/2014. (plh) (Entered: 10/20/2014)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 13 Motion to Dismiss for Failure to State a Claim, 14 Brief in Support of Motion. ERROR: Document incorrectly linked. CORRECTION: Linked to appropriate document. This message is for informational purposes only. (plh) (Entered: 10/21/2014)
15 MOTION to Take Deposition from Edward Snowden by ELLIOTT J. SCHUCHARDT. (Attachments: # 1 Proposed Order) (Schuchardt, Elliott) (Entered: 10/23/2014)
ORDER. Plaintiff's Motion to Take Deposition (Doc. 15 ) is DENIED. There is no indication that the requirements of Federal Rule 26(d)(1) have been satisfied. Even if there was, Plaintiff's stated reasons for seeking discovery are inconsistent with the law. Compare Mot. at pg. 2 para. 8 ("Plaintiff would like to take the deposition of Edward

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Snowden for purposes of opposing the motion to dismiss, and for use later in the case") with, e.g., Mann v. Brenner, 2010 WL 1220963, *5 (3d Cir. Mar. 30, 2010) ("[a] motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim, and therefore may be decided on its face," and "the purpose of Rule 12(b)(6) is to streamline[ ] litigation by dispensing with needless discovery and factfinding") (citations to quoted authority omitted). Signed by Judge Cathy Bissoon on 10/23/14. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (dcd) (Entered: 10/23/2014)
16 Second AMENDED COMPLAINT against All Defendants, filed by ELLIOTT J. SCHUCHARDT. (Schuchardt, Elliott) Modified on 11/12/2014. (plh) Modified on 11/12/2014. (plh) This document removed from public view. (Entered: 11/10/2014)
ORDER. Plaintiff's purported second amended complaint (Doc. 16 ) is STRICKEN. Plaintiff already has used his amendment as a matter of course under Rule 15(a)(1), and additional amendment requires the opposing party's written consent or leave or court. See Fed. R. Civ. P. 15(a)(2). Signed by Judge Cathy Bissoon on 11/10/14. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (dcd) (Entered: 11/10/2014)
17 MOTION for Leave to File Amended Complaint. by ELLIOTT J. SCHUCHARDT. (Attachments: # 1 Exhibit A − Proposed Amended Complaint, # 2 Proposed Order) (Schuchardt, Elliott) (Entered: 11/11/2014)
18 BRIEF in Opposition re 17 Motion for Leave to File Defendants' Opposition to Plaintiffs' Motion for Leave to File [Second] Amended Complaint filed by JAMES R. CLAPPER, JAMES B. COMEY, BARACK H. OBAMA, ADM. MICHAEL S. ROGERS. (Attachments: # 1 Proposed Order) (Berman, Marcia) (Entered: 11/14/2014)
ORDER granting Plaintiff's Motion (Doc. 17 ) for leave to file second amended complaint, as follows. Plaintiff shall file his second amended complaint by 11/25/14, and absent unforeseen and extraordinary circumstances, no further amendments will be permitted. Although, generally, leave to amend freely is given, this rule cannot be read so broadly as to allow or require the Court and opposing parties to entertain endless requests for amendment. The purpose of Federal Rule 15 is not "to make the complaint 'a moving target,'" Minter v. Prime Equipment Co., 451 F.3d 1196, 1206 (10th Cir. 2006), and any further requests for amendment most likely will raise significant issues regarding undue delay and prejudice. Accordingly, Plaintiff's second amended complaint must make last, best efforts to state any and all allegations and viable claims that Plaintiff intends to pursue in this lawsuit. Signed by Judge Cathy Bissoon on 11/19/14. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (dcd) (Entered: 11/19/2014)
19 Second AMENDED COMPLAINT against JAMES R. CLAPPER, JAMES B. COMEY, BARACK H. OBAMA, ADM. MICHAEL S. ROGERS JAMES R. CLAPPER answer due 12/8/2014; JAMES B. COMEY answer due 12/8/2014; BARACK H. OBAMA answer due 12/8/2014; ADM. MICHAEL S. ROGERS answer due 12/8/2014, filed by ELLIOTT J. SCHUCHARDT. (Schuchardt, Elliott) (Entered: 11/24/2014)
20 MOTION to Dismiss Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint re 19 Amended Complaint, by JAMES R. CLAPPER, JAMES B. COMEY, BARACK H. OBAMA, ADM. MICHAEL S. ROGERS. (Attachments: # 1 Proposed Order) (Berman, Marcia) (Entered: 12/11/2014)
21 BRIEF in Support re 20 Motion to Dismiss, Brief in Support of Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint filed by JAMES R. CLAPPER, JAMES B. COMEY, BARACK H. OBAMA, ADM. MICHAEL S. ROGERS. (Attachments: # 1 Declaration of M. Berman, # 2 Exhibit A, # 3 Exhibit B) (Berman, Marcia) (Entered: 12/11/2014)
22 RESPONSE IN OPPOSITION to 20 Motion to Dismiss, filed by ELLIOTT J. SCHUCHARDT. (Schuchardt, Elliott) (Entered: 12/23/2014)
23 BRIEF in Opposition re 20 Motion to Dismiss, filed by ELLIOTT J. SCHUCHARDT. (Attachments: # 1 Exhibit A − New York Times Article About FISA Court denying

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bulk collection authority, # 2 Exhibit B − Government's brief in support of application to collect e−mail in bulk through the Foreign Intelligence Surveillance Court, # 3 Exhibit C − Declaration of NSA Program Manager in support of bulk collection of e−mail, # 4 Exhibit D − Opinion of Foreign Intelligence Surveillance Court denying authority to collect e−mail in bulk, # 5 Exhibit E − Shea Declaration describing scope of metadata collection program, # 6 Exhibit F − Binney Declaration, # 7 Exhibit G − Schuchardt Affidavit) (Schuchardt, Elliott) (Entered: 12/23/2014)
24 Consent MOTION for Extension of Time to File Response/Reply Consent Motion for Extension of Time to File Defendants' Reply in Support of Motion to Dismiss by JAMES R. CLAPPER, JAMES B. COMEY, BARACK H. OBAMA, ADM. MICHAEL S. ROGERS. (Attachments: # 1 Proposed Order) (Berman, Marcia) (Entered: 12/26/2014)
ORDER granting 24 unopposed Motion for Extension of Time to File Reply re 20 MOTION to Dismiss. Defendants' reply now is due by 1/12/15. Signed by Judge Cathy Bissoon on 12/30/14. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (dcd) (Entered: 12/30/2014)
25 MOTION for Preliminary Injunction by ELLIOTT J. SCHUCHARDT. (Attachments: # 1 Proposed Order) (Schuchardt, Elliott) (Entered: 01/07/2015)
26 BRIEF in Support re 25 Motion for Preliminary Injunction filed by ELLIOTT J. SCHUCHARDT. (Attachments: # 1 Exhibit A − Verizon Court Order, # 2 Exhibit B − Affidavit of Elliott Schuchardt in Support of Motion for Preliminary Injunction) (Schuchardt, Elliott) (Entered: 01/07/2015)
ORDER denying without prejudice 25 Plaintiff's Motion for Preliminary Injunction. Given the procedural history in this case, Plaintiff cannot establish sufficient imminent and irreparable harm to warrant the adjudication of a preliminary injunction request in advance of the pending Motion to Dismiss. See Dkt. in this case (including stipulated requests for long−extended briefing schedules and Plaintiff's repeated requests for leave to amend). Signed by Judge Cathy Bissoon on 1/8/15. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (dcd) (Entered: 01/08/2015)
27 REPLY to Response to Motion re 20 Motion to Dismiss re: 19 Plaintiff's Second Amended Complaint filed by JAMES R. CLAPPER, JAMES B. COMEY, BARACK H. OBAMA, ADM. MICHAEL S. ROGERS. (Gilligan, James) Modified on 1/13/2015. (plh) (Entered: 01/12/2015)
28 MEMORANDUM AND ORDER granting 20 Motion to Dismiss. Signed by Judge Cathy Bissoon on 9/30/15. (dcd) (Entered: 09/30/2015)
29 JUDGMENT ORDER. Consistent with the Memorandum and Order entered today, FINAL JUDGMENT hereby is entered against Plaintiff under Rule 58 of the Federal Rules of Civil Procedure. This case has been marked closed. Signed by Judge Cathy Bissoon on 9/30/15. (dcd) (Entered: 09/30/2015)
30 NOTICE OF APPEAL as to 28 Order on Motion to Dismiss, 29 Rule 58 Judgment, by ELLIOTT J. SCHUCHARDT. Filing fee $505, receipt number 0315−3738041. Motion for IFP N/A. Certificate of Appealability N/A. Court Reporter(s): N/A. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. The Transcript Purchase Order form will NOT be mailed to the parties. The form is available on the Court's internet site. (Schuchardt, Elliott) (Entered: 10/14/2015)
32 DESIGNATION of Record on Appeal by ELLIOTT J. SCHUCHARDT re 30 Notice of Appeal,, (Schuchardt, Elliott) (Entered: 10/26/2015)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 32 Designation of Record on Appeal. ERROR: Designation of Record. CORRECTION: as Attorney is unable to be reached by phone, he is advised that ALL APPEAL DOCUMENTS MUST BE FILED IN THE USCA − not on DC dockets. This message is for informational purposes only. (PLEASE FORWARD THIS DOCUMENT TO THE USCA) (plh)

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(Entered: 10/27/2015)
33 JUDGMENT OF USCA as to 30 Notice of Appeal, filed by ELLIOTT J. SCHUCHARDT. The district court hereby VACATED and REMANDED. Mandate will follow. (pdb3) Modified on 10/6/2016. (plh) (Entered: 10/05/2016)
34 MOTION to Intervene by JUSTIN CREDICO. (Attachments: # 1 Envelope) (plh) (Entered: 12/13/2016)
35 BRIEF in Support re 34 Motion to Intervene filed by JUSTIN CREDICO. (Attachments: # 1 Envelope) (plh) (Entered: 12/13/2016)
36 MOTION for Leave to File One Copy of All Documents by JUSTIN CREDICO. (Attachments: # 1 Envelope) (plh) (Entered: 12/13/2016)
37 Joint MOTION for Extension of Time to File Response/Reply as to 34 MOTION to Intervene (Joint Motion for Extension of Time To File Oppositions to Motion To Intervene) by JAMES R. CLAPPER, JAMES B. COMEY, BARACK H. OBAMA, ADM. MICHAEL S. ROGERS. (Attachments: # 1 Proposed Order) (Gilligan, James) (Entered: 12/21/2016)
38 MANDATE of USCA as to 30 Notice of Appeal, filed by ELLIOTT J. SCHUCHARDT. The order of the United States District Court for the Western District of Pennsylvania entered on September 30, 2015, be and the same is hereby VACATED and REMANDED. (Attachments: # 1 Opinion) (sc3) (Entered: 12/23/2016)
39 ORDER denying 34 Motion to Intervene by Justin Credico. Mr. Credico's Motion, in which he essentially claims and/or admits to engaging in criminal conduct, is legally frivolous. Furthermore, to the extent that Mr. Credico may have an interest in this case, Plaintiff has brought this lawsuit as a class action, and Mr. Credico has failed to demonstrate: (1) why his interest is any different from any other putative class member; or (2) why his presumed interest cannot properly be addressed through the class−action process and/or mechanisms. For all of these reasons, Mr. Credico's Motion to Intervene is DENIED. The other pending Motions affiliated with the intervention−request (Docs. 36 & 37 ) are DENIED AS MOOT. Signed by Judge Cathy Bissoon on 12/27/16. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (dcd) Staff note: a copy of this text Order will be sent, via First−Class U.S. Mail, to Mr. Credico's address of record on 12/28/16. (Entered: 12/27/2016)
40 MOTION for Reconsideration re 39 Order on Motion to Intervene, Order on Motion for Leave to File, Order on Motion for Extension of Time to File Response/Reply, by JUSTIN CREDICO (Attachments: # 1 Envelope) (plh) Modified on 1/13/2017. (plh) (Entered: 01/13/2017)
41 ORDER denying 40 Justin Credico's Motion for Reconsideration. Signed by Judge Cathy Bissoon on 1/13/17. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (dcd) Staff note: a copy of this text Order will be sent, via First−Class U.S. Mail, to Mr. Credico's address of record on 1/17/17. (Entered: 01/13/2017)
42 NOTICE OF APPEAL as to 39 Order on Motion to Intervene, Order on Motion for Leave to File, Order on Motion for Extension of Time to File Response/Reply, by JUSTIN CREDICO. Court Reporter(s): none. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. The Transcript Purchase Order form will NOT be mailed to the parties. The form is available on the Court's internet site. (Attachments: # 1 Exhibit A, # 2 Envelope) (plh) (Entered: 01/27/2017)
43 LETTER from Clerk re 42 Notice of Appeal, Appellant Justin Credico to pay appeal filing fee or submit a motion for leave to appeal in forma pauperis. (plh) (Entered: 01/27/2017)
44 ORDER. A Telephonic Status Conference is set for 2/3/17 at 11:30 a.m. before Judge Cathy Bissoon. All participants shall contact the undersigned's Chambers (412.208.7460) on a single telephone line, and counsel for the government is responsible for coordinating the call. The participants shall have their calendars

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available for scheduling purposes. Signed by Judge Cathy Bissoon on 1/31/17. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (dcd) (Entered: 01/31/2017)
46 Minute Entry for proceedings held before Judge Cathy Bissoon: Telephone Status Conference held on 2/3/2017. (Court Reporter: None) (jhi) (Entered: 02/03/2017)
47 ORDER. Consistent with the discussions at today's Telephonic Status Conference, by 2/10/17, Plaintiff shall notify Chambers whether or not this case will be dismissed based on the information provided to him by the government. In the event that the case will proceed, Defendants' deadline for filing its renewed motion to dismiss is 3/13/17, and Plaintiff's response is due by 7/11/17. Signed by Judge Cathy Bissoon on 2/3/17. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (dcd) (Entered: 02/03/2017)
48 NOTICE of Appearance by Timothy A. Johnson on behalf of JAMES R. CLAPPER, JAMES B. COMEY, BARACK H. OBAMA, ADM. MICHAEL S. ROGERS. (Johnson, Timothy) (Entered: 02/03/2017)
49 NOTICE of Appearance by Julia A. Berman on behalf of JAMES R. CLAPPER, JAMES B. COMEY, BARACK H. OBAMA, ADM. MICHAEL S. ROGERS. (Berman, Julia) (Entered: 02/06/2017)
50 NOTICE of Appearance by Caroline J. Anderson on behalf of JAMES R. CLAPPER, JAMES B. COMEY, BARACK H. OBAMA, ADM. MICHAEL S. ROGERS. (Anderson, Caroline) (Entered: 02/07/2017)
51 NOTICE of Appearance by Rodney Patton on behalf of JAMES R. CLAPPER, JAMES B. COMEY, BARACK H. OBAMA, ADM. MICHAEL S. ROGERS. (Patton, Rodney) (Entered: 02/07/2017)
52 CERTIFIED ORDER of USCA in lieu of formal MANDATE dismissing the appeal for failure to pay the filing fee as to 42 Notice of Appeal, filed by JUSTIN CREDICO. (cjg3) (Entered: 02/23/2017)
53 MOTION for Permissive Joinder and MOTION for Leave to File Complaint Complaint by JUSTIN CREDICO. (Attachments: # 1 Envelope) (jv) Modified on 3/8/2017. (jsp) (Entered: 03/07/2017)
54 ORDER. Mr. Credico's Motion (Doc. 53 ) for permissive joinder and/or to "amend" the complaint will be denied. This individual moved to intervene in the case (Doc. 34 ); the motion was denied, once, and again on reconsideration (Docs. 39 & 41 ); he appealed (Doc. 42 ); and the Court of Appeals for the Third Circuit dismissed his appeal (Doc. 52 ). Putative class action−aspects notwithstanding, Mr. Credico is not a primary party to this case, and that issue has been resolved with finality. He does not have standing to invoke rules regarding permissive joinder and/or amendment of the pleadings. Accordingly, his Motion (Doc. 53 ) is DENIED. Signed by Judge Cathy Bissoon on 3/8/17. Staff note: On 3/9/17, a copy of this text Order will be sent, via First−Class U.S. Mail, to the return address on Mr. Credico's most recent filing (Federal Detention Center Philadelphia, 700 Arch Street, P.O. Box 562, Philadelphia, PA 19106). Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (dcd) (Entered: 03/08/2017)
55 Consent MOTION to Extend Time to File Their Renewed Motion to Dismiss by JAMES R. CLAPPER, JAMES B. COMEY, BARACK H. OBAMA, ADM. MICHAEL S. ROGERS. (Attachment: # 1 Proposed Order) (Patton, Rodney) Modified on 3/13/2017. (jsp) (Entered: 03/10/2017)
56 ORDER granting 55 Motion to Extend Deadlines. Defendants' deadline for filing its renewed motion to dismiss is extended until 3/15/17, and Plaintiff's response is due by 7/13/17. Signed by Judge Cathy Bissoon on 14−705. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (dcd) (Entered: 03/10/2017)
57 Renewed MOTION to Dismiss Plaintiff's Second Amended Complaint for Lack of Jurisdiction by JAMES R. CLAPPER, JAMES B. COMEY, BARACK H. OBAMA, ADM. MICHAEL S. ROGERS. (Attachment: # 1 Proposed Order) (Patton, Rodney) Modified on 3/16/2017. (jsp) (Entered: 03/15/2017)

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58 BRIEF in Support re 57 Defendants' Renewed Motion to Dismiss Plaintiff's Second Amended Complaint for Lack of Jurisdiction filed by JAMES R. CLAPPER, JAMES B. COMEY, BARACK H. OBAMA, ADM. MICHAEL S. ROGERS. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5) (Patton, Rodney) Modified on 3/16/2017. (jsp) (Entered: 03/15/2017)
59 ORDER STATISTICALLY CLOSING CASE, FOR ADMINISTRATIVE PURPOSES ONLY. Given the lengthy period of time allowed for Plaintiff to respond to Defendants' Motion to Dismiss, as agreed upon by the parties and approved by the Court (see text Order at Doc. 56), this case will, in the interim, remain administratively closed. Administrative closings comprise a familiar way in which courts remove cases from their active files without final adjudication, and it does not prejudice the rights of the parties in any manner. The case will be reopened upon Plaintiff's next filing regarding the MTD (or before, should either party have reason to so move). Signed by Judge Cathy Bissoon on 3/16/17. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (dcd) (Entered: 03/16/2017)
60 MOTION for Reconsideration re 54 Order by JUSTIN CREDICO. (Attachments: # 1 Exhibit A, # 2 Envelope) (plh) (Entered: 03/21/2017)
61 ORDER denying Doc. 60 Mr. Credico's Motion for reconsideration of the Order (Doc. 54 ) denying his requests for permissive joinder and/or to "amend" the complaint. Recent activity in Mr. Credico's appeal of the intervention−issue notwithstanding, the rules regarding permissive joinder and/or amendment of the pleadings remain unavailable to him based on his present status in this litigation. See, e.g., Jackson v. Waterbury Police Dep't, 2015 WL 5251533, *10 (D. Conn. Sept. 8, 2015) ("Intervention is used by a person who is outside the litigation who wishes to join it[,] whereas permissive joinder is initiated by a person who is already a party to the proceeding who wishes to bring in another party.") (citation to quoted source omitted). Although Mr. Credico obviously remains free to pursue relief before the Circuit regarding the intervention−issue, this Court's rulings regarding permissive joinder and amendment of the pleadings remain unaffected. Signed by Judge Cathy Bissoon on 3/21/17. Staff note: On 3/22/17, a copy of this text Order will be sent, via First−Class U.S. Mail, to the return address on Mr. Credico's most recent filing (Federal Detention Center Philadelphia, 700 Arch Street, P.O. Box 562, Philadelphia, PA 19106). (Entered: 03/21/2017)
62 AFFIDAVIT in Opposition re 57 Renewed MOTION to Dismiss Plaintiff's Second Amended Complaint for Lack of Jurisdiction −− Affidavit of William E. Binney filed by ELLIOTT J. SCHUCHARDT. (Attachments: # 1 Exhibit 1 − Resume, # 2 Exhibit 2 − Fairview at a Glance, # 3 Exhibit 3 − Stormbrew, # 4 Exhibit 4 − Blarney Access, # 5 Exhibit 5 − DNI Discovery Options, # 6 Exhibit 6 − Treasuremap) (Schuchardt, Elliott) (Entered: 07/05/2017)
63 ORDER REOPENING CASE. In light of Plaintiff's recent filing in Opposition to Defendants' Renewed Motion to Dismiss the Second Amended Complaint for Lack of Jurisdiction (Doc. 62 ), this case is hereby REOPENED. Signed by Judge Cathy Bissoon on 7/6/2017. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (kg) (Entered: 07/06/2017)
64 AFFIDAVIT in Opposition re 57 Renewed MOTION to Dismiss Plaintiff's Second Amended Complaint for Lack of Jurisdiction − Affidavit of J. Kirk Wiebe filed by ELLIOTT J. SCHUCHARDT. (Schuchardt, Elliott) (Entered: 07/08/2017)
65 USCA ORDER REINSTATING APPEAL granting Appellant's motion to reopen the appeal as to 42 Notice of Appeal, filed by JUSTIN CREDICO (cjg3) (Entered: 07/10/2017)
66 AFFIDAVIT in Opposition re 57 Renewed MOTION to Dismiss Plaintiff's Second Amended Complaint for Lack of Jurisdiction − Affidavit of Elliott J. Schuchardt filed by ELLIOTT J. SCHUCHARDT. (Schuchardt, Elliott) (Entered: 07/10/2017)
67 RESPONSE IN OPPOSITION to 57 Motion to Dismiss/Lack of Jurisdiction, filed by ELLIOTT J. SCHUCHARDT. (Schuchardt, Elliott) (Entered: 07/10/2017)

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68 BRIEF in Opposition to 57 Renewed MOTION to Dismiss Plaintiff's Second Amended Complaint for Lack of Jurisdiction, filed by ELLIOTT J. SCHUCHARDT. (Attachments: # 1 Exhibit A − Guardian Article − DNI calls on Snowden to "return" documents, # 2 Exhibit B − Executive Summary − Review of Unauthorized Disclosures of Former NSA Contractor Edward Snowden) (Schuchardt, Elliott) (Entered: 07/10/2017)
69 Consent MOTION for Extension of Time to File Response/Reply in Support of Renewed Motion to Dismiss by JAMES R. CLAPPER, JAMES B. COMEY, BARACK H. OBAMA, ADM. MICHAEL S. ROGERS. (Attachments: # 1 Proposed Order) (Patton, Rodney) (Entered: 07/14/2017)
70 ORDER granting 69 Defendants' unopposed Motion for Extension of Time to File a Reply. Defendants' reply now is due by 8/16/17. Signed by Judge Cathy Bissoon on 7/14/17. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (dcd) (Entered: 07/14/2017)
71 Consent MOTION for Leave to File Excess Pages in Defendants' Reply in Support of their Renewed Motion to Dismiss by JAMES R. CLAPPER, JAMES B. COMEY, BARACK H. OBAMA, ADM. MICHAEL S. ROGERS. (Attachments: # 1 Proposed Order) (Patton, Rodney) (Entered: 08/15/2017)
72 ORDER granting 71 Defendants' consented Motion for Leave to File Excess Pages. The page limitation for Defendants' reply brief is enlarged from five to eight pages. Signed by Judge Cathy Bissoon on 8/16/17. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (dcd) (Entered: 08/16/2017)
73 REPLY to Response to Motion re 57 Motion to Dismiss/Lack of Jurisdiction, filed by JAMES R. CLAPPER, JAMES B. COMEY, BARACK H. OBAMA, ADM. MICHAEL S. ROGERS. (Patton, Rodney) (Entered: 08/16/2017)
74 CERTIFIED ORDER of USCA in lieu of formal MANDATE dismissing the appeal for failure to pay the filing fees as to 42 Notice of Appeal, filed by JUSTIN CREDICO. (cjg3) (Entered: 09/06/2017)
75 Consent MOTION to Withdraw as Attorney (Timothy A. Johnson) by JAMES R. CLAPPER, JAMES B. COMEY, BARACK H. OBAMA, ADM. MICHAEL S. ROGERS. (Johnson, Timothy) (Entered: 06/08/2018)
76 ORDER granting 75 Motion to Withdraw as Attorney. Attorney Timothy A. Johnson terminated. Signed by Judge Cathy Bissoon on 6/8/18. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (dcd) (Entered: 06/08/2018)
77 ORDER. Defendants' renewed Motion to Dismiss (Doc. 57 ) is GRANTED. Signed by Judge Cathy Bissoon on 2/4/19. (dcd) (Entered: 02/04/2019)
78 JUDGMENT ORDER. FINAL JUDGMENT hereby is entered pursuant to Rule 58 of the Federal Rules of Civil Procedure. This case has been marked closed. Signed by Judge Cathy Bissoon on 2/4/19. (dcd) (Entered: 02/04/2019)
79 NOTICE OF APPEAL as to 78 Rule 58 Judgment, 77 Order by ELLIOTT J. SCHUCHARDT. Filing fee $505, receipt number 0315−5026436. Motion for IFP N/A. Certificate of Appealability N/A. Court Reporter(s): N/A. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. The Transcript Purchase Order form will NOT be mailed to the parties. The form is available on the Court's internet site. (Schuchardt, Elliott) (Entered: 02/12/2019)
80 USCA Case Number 19−1366 for 79 Notice of Appeal filed by ELLIOTT J. SCHUCHARDT. USCA Case Manager James (DOCUMENT IS RESTRICTED AND CAN ONLY BE VIEWED BY COURT STAFF) (jk3) (Entered: 02/14/2019)
81 NOTICE of Change of Address by James J. Gilligan (Gilligan, James) (Entered: 04/25/2019)

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82 JUDGMENT OF USCA as to 79 Notice of Appeal filed by ELLIOTT J. SCHUCHARDT, affirming judgment/order of the district court. Mandate will follow. (jk3) Costs taxed against appellant. Modified text on 3/2/2020. (ept) Modified text on 3/4/2020. (ept) (Entered: 03/02/2020)
83 MANDATE of USCA as to 79 Notice of Appeal, filed by ELLIOTT J. SCHUCHARDT affirming judgment of the District Court. Costs taxed against Appellant. (Attachments: # 1 Clerk's Letter to District Court, # 2 Opinion) (jk3) Modified text on 5/4/2020. (elt) Modified text on 5/4/2020. (elt) (Entered: 04/23/2020)