FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANNA J. SMITH,

Plaintiff-Appellant,

v.

BARACK OBAMA, in his official

capacity as President of the United

States of America; JAMES R.

CLAPPER, in his official capacity as

Director of National Intelligence;

MICHAEL S. ROGERS, in his official

capacity as Director of the National

Security Agency and Chief of the

Central Security Service; ASHTON

CARTER, in his official capacity as

Secretary of Defense; LORETTA E.

LYNCH, Attorney General; JAMES B.

COMEY, in his official capacity as

Director of the Federal Bureau of

Investigation,*

Defendants-Appellees.

No. 14-35555

D.C. No.

2:13-cv-00257-

BLW

ORDER

Appeal from the United States District Court

for the District of Idaho

B. Lynn Winmill, Chief District Judge, Presiding
2 SMITH V. OBAMA

Argued December 8, 2014

Submitted March 15, 2016

Seattle, Washington

Filed March 22, 2016

Before: Michael Daly Hawkins, M. Margaret McKeown,

and Richard C. Tallman, Circuit Judges.

SUMMARY*

USA FREEDOM Act

The panel held that Anna Smith’s claims challenging the

ongoing collection of her metadata under section 215 of the

USA PATRIOT Act (expired but revived by the USA

FREEDOM Act of 2015) were moot, and remanded to the

district court for their dismissal; and remanded Smith’s

remaining claims for the district court to determine whether

they are moot, and if not, to resolve the claims in light of an

intervening change in the law.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
SMITH V. OBAMA 3

COUNSEL

Peter J. Smith IV (argued) and Lucas T. Malek, Smith &

Malek, PLLC, Coeur d’Alene, Idaho; Cindy Cohn, David

Greene, Hanni Fakhoury and Andrew Crocker, Electronic

FrontierFoundation, San Francisco, California; Jameel Jaffer,

Alex Abdo and Patrick Toomey, American Civil Liberties

Union Foundation, New York, New York; Richard Alan

Eppink, AmericanCivil Liberties Union of Idaho Foundation,

Boise, Idaho, for Plaintiff-Appellant.

H. Thomas Byron III (argued); Joyce R. Branda, Acting

Assistant Attorney General; Benjamin C. Mizer, Principal

Deputy Assistant Attorney General; Wendy J. Olson, United

States Attorney; Douglas N. Letter and Henry C. Whitaker,

Civil Division, United States Department of Justice,

Washington, D.C., for Defendants-Appellees.

Paul M. Smith, Michael T. Borgia, Jenner & Block LLP,

Washington, D.C.; Michael Davidson, Washington, D.C.;

Kate A. Martin, Center for National Security Studies,

Washington, D.C.; Joseph Onek, The Raben Group,

Washington, D.C., for Amicus Curiae Center for National

Security Studies.

Marc Rotenberg, Alan Butler, Julia Horwitz and Jeramie

Scott, Electronic Privacy Information Center, Washington,

D.C.,for Amici Curiae Electronic PrivacyInformation Center

(EPIC) and Thirty-Three Technical Experts and Legal

Scholars.

Catherine R. Gellis, Sausalito, California; Michael H. Page

and Joseph C. Gratz, Durie Tangri LLP, San Francisco,
4 SMITH V. OBAMA

California, for Amicus Curiae National Association of

Criminal Defense Lawyers.

Thomas R. Burke, Davis Wright Tremaine LLP, San

Francisco, California; Edward J. Davis, Linda Steinman and

Lacy H. Koonce, III, Davis Wright Tremaine LLP, New

York, New York, for Amicus Curiae PEN American Center,

Inc.

Bruce Brown, Katie Townsend and Hannah Bloch-Wehba,

Reporters Committee for Freedom of the Press, Arlington,

Virginia; Kevin M. Goldberg, Fletcher, Heald & Hildreth,

PLC, Arlington, Virginia; Rachel Matteo-Boehm, Bryan

Cave LLP, San Francisco, California; David M. Giles, The

E.W. Scripps Company, Cincinatti, Ohio; Peter Scheer, First

Amendment Coalition, San Rafael, California; Lynn

Oberlander, First Look Media, Inc., New York, New York;

Barbara W. Wall, Gannett Co., Inc., McLean, Virginia;

Karole Morgan-Prager and Juan Cornejo, The McClatchy

Company, Sacramento, California; CharlesD.Tobin,Holland

& Knight LLP, Washington, D.C.; Mickey H. Osterreicher,

Buffalo, New York; Jennifer A. Borg, North Jersey Media

Group Inc., Woodland Park, New Jersey; Michael Kovaka,

Washington, D.C.; Kathleen A. Kirby, Wiley Rein LLP,

Washington, D.C.; John B. Kennedy, James A. McLaughlin

and Kalea S. Clark, The Washington Post, Washington, D.C.,

for Amici Curiae Reporters Committee for Freedom of the

Press and 17 Media Organizations.

Charles S. Sims, Proskauer Rose LLP, New York, New York,

for Amici Curiae Senator Ron Wyden, Senator Mark Udall

and Senator Martin Heinrich.
SMITH V. OBAMA 5

ORDER

Anna Smith challenges the collection of her metadata

pursuant to § 215 of the USA PATRIOT Act of 2001, Pub. L.

No. 107-56, sec. 215, § 501, 115 Stat. 272, 287-88. That

section expired on June 1, 2015, but was revived by the USA

FREEDOM Act of 2015, Pub. L. No. 114-23, tit. I, 129 Stat.

268, 269–77 (2015) (codified at 50 U.S.C. § 1861). The USA

FREEDOM Act prohibits any further bulk collection of

tangible things pursuant to § 1861 after November 28, 2015. 

See id. § 103, 129 Stat. at 272; see also id. § 109(a), 129 Stat.

at 276.

On November 24, 2015, the Foreign Intelligence

Surveillance Court (“FISC”) approved the government’s

request to retain already collected metadata for two limited

purposes. Opinion & Order, In re Application of the FBI for

an Order Requiring the Production of Tangible Things, No.

BR 15-99 at 1–2 (FISC Ct. Nov. 24, 2015). First, for a period

ending on February 29, 2016, the court authorized limited

access to the metadata by technical personnel to verify the

completeness and accuracy of call detail records produced

under targeted production orders issued by the FISC after

November 28, 2015. Id. at 6–7. Second, the court permitted

the government to retain the metadata for litigation purposes

after February 29, 2016, subject to conditions set out in an

earlier order. Id. at 7–8.

On January 8, 2016, the government filed in the FISC a

report expressing its view that, although the USA FREEDOM

Act mooted claims for prospective injunctive relief (i.e.,

requests to halt bulk collection pursuant to § 1861), it did not

moot claims for retrospective relief (i.e., inventory and

destruction of alreadycollected metadata). Report Describing
6 SMITH V. OBAMA

the Government’s Assessment Whether the End of Bulk

Collection Has Mooted Claims of Certain Plaintiffs, In re

Application of the FBI for an Order Requiring the Production

of Tangible Things, No. BR 15-99 at 1, 6–7 (FISC, filed Jan.

8, 2016).

We hold that Smith’s claims related to the ongoing

collection of metadata are moot and vacate and remand for

their dismissal.

As for Smith’s remaining claims, including her request

that the government purge all of her metadata collected

pursuant to § 1861, we remand this case for the district court

to determine whether they are moot and, if they are not, for

the district court to resolve them in light of the intervening

change in law. Each party shall bear its own costs on appeal.

VACATED AND REMANDED.