Schuchardt v. President of the United States

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

____________

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

2

____________

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.

3

§ 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 e-

mail 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

4

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

5

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.

6

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

7

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-cv-

00705-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

8

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

9

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).

10

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), 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

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].

11

that “[i]n PRISM collection, the government . . . sends

selectors—such as an email address—to a United States-

based 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 non-

conclusory 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

12

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.

13

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

14

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).

15

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

16

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

17

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

18

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 “Muslim-

affiliated” 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).

19

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

20

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

21

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).

22

“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] well-

pleaded 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).

23

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

24

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).

25

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

26

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

27

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.

28

(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).

29

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-

30

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

31

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.

32

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 commentators 11 and the few courts 12 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

33

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/7L6A-

H22D.

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

34

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.”).

35

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.

36

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”).

37

* * *

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.

38