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

____________
2

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

 

 Honorabel D. Brooks Smith, United States Circuit Judge for the 

Third Circuit, assumed Chief Judge status on October 1, 2016
3

____________

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. 
4

§ 1881a. On the day Section 702 became law, its

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
5

failed to demonstrate an injury that was “certainly 

impending.” Id. at 1150. 

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 
6

omitted). Accordingly, they lacked standing to challenge the 

constitutionality of Section 702. Id.

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 

 

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.
7

or using its services where one or both ends of the call are 

located in the United States.” ACLU, 785 F.3d at 795.

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 

 

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 
8

presentation purportedly authored by the NSA described 

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 

 

of Apple, Google and Others, Guardian (June 7, 2013), 

https://perma.cc/RPA9-RXSY
9

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 

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 
10

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 

 

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 

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).
11

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. 

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. 2-14-

cv-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),4an 

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

 

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].
12

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, 

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 
13

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 

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. 
14

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).

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 
15

Court’s order will accept as true all of Schuchardt’s plausible 

allegations, and draw all reasonable inferences in his favor.

5

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 

 

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 

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).
16

speculative, that the injury will be redressed by 

a favorable decision.

Id. at 560–61 (internal quotation marks, citations, and 

alterations omitted). 

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 
17

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 

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 
18

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 

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 
19

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 

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).
20

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 

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 
21

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)

(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 
22

than conclusions, are not entitled to the assumption of truth.’”

(quoting Iqbal, 556 U.S. at 679)).

6

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 

 

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 

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).
23

“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 

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 

 

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). 
24

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 

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 

 

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 
25

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 

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, 

 

pleading standard more stringent than the “short and plain 

statement” of the claim under Rule 8).
26

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.

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 
27

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. 

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 
28

means through which PRISM purportedly achieves a 

nationwide email dragnet.9

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 

 

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 

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. 
29

(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”). 

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 

 

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 

the Collection of International Telephone and Internet 

Content, 38 Harv. J. L. & Pub. Pol’y 117, 119 n.3 (2015).
30

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., 

“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-in-
31

fact, 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 

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 
32

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 

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.
33

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 

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 
34

 

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 

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 
35

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 

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 

 

communications that contain information specified by the 

NSA.”).
36

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. 

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. 
37

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 

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).

 

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”).
38

* * *

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.