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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: NATIONAL SECURITY AGENCY
TELECOMMUNICATIONS RECORDS
LITIGATION,
TASH HEPTING; GREGORY HICKS; No. 09-16676
ERIK KNUTZEN; CAROLYN JEWEL, on D.C. Nos.
behalf of themselves and all other 3:06-cv-00672-
similarly situated, VRW
Plaintiffs-Appellants, M:06-cv-01791-
v. VRW
AT&T CORPORATION; AT&T, INC.,
Defendants-Appellees,
UNITED STATES OF AMERICA,
Defendant-intervenor-Appellee.
SEAN BASINSKI, on behalf of
himself and all others similarly
situated; ALL PLAINTIFFS, No. 09-16677
Plaintiffs-Appellants,
D.C. Nos.
v. 3:06-cv-06434-
VERIZON COMMUNICATIONS, INC.; VRW
VERIZON, M-06-cv-01791-
Defendants-Appellees, VRW
UNITED STATES OF AMERICA,
Defendant-intervenor-Appellee.
21545
21546 HEPTING v. AT&T CORP.
RICHARD D. SUCHANEK, III, on
behalf of himself and all others
similarly situated; ALL PLAINTIFFS, No. 09-16679
Plaintiffs-Appellants, D.C. Nos.
v. 3:06-cv-06295-
VRW
SPRINT NEXTEL CORPORATION,
M:06-cv-01791-
Defendant-Appellee,
VRW
UNITED STATES OF AMERICA,
Defendant-intervenor-Appellee.
CHARLES F. BISSITT; SANDRA
BISSITT; GEORGE HAYEK, III; JUNE
MATRUMALO; GERARD THIBEAULT;
ARTHUR BOUCHARD; MARYANN
BOUCHARD; ALDO CAPARCO; JANICE
CAPARCO; JENNA CAPARCO; ROSE
DELUCA; NICOLE MIRABELLA; No. 09-16682
PATRICIA POTHIER; PAUL POTHIER;
D.C. Nos.
MARSHALL VOTTA; VINCENT
MATRUMALO; PAULA MATRUMALO; 3:06-cv-05066-
VRW
JENNIFER THOMAS; CHRISTINE
M:06-cv-01791-
DOUQUETTE; MARYANN KLACZYNSKI;
VRW
ALL PLAINTIFFS,
Plaintiffs-Appellants,
v.
VERIZON COMMUNICATIONS, INC.;
VERIZON,
Defendants-Appellees.
HEPTING v. AT&T CORP. 21547
CHRISTOPHER BREADY; ANNE
BREADY; KYU CHUN KIM; JENET
ARTIS; CLAUDIS ARTIS; DAVID No. 09-16683
BEVERLY, Jr.; ALL PLAINTIFFS,
Plaintiffs-Appellants, D.C. Nos.
v. 3:06-cv-06313-
VRW
VERIZON MARYLAND, INC.; VERIZON, M:06-cv-01791-
Defendants-Appellees, VRW
UNITED STATES OF AMERICA,
Defendant-intervenor-Appellee.
21548 HEPTING v. AT&T CORP.
TOM CAMPBELL; GEORGE MAIN;
DENNIS P. RIORDAN; MARGARET
RUSSELL; ROBERT SCHEER; PETER
SUSSMAN; RICHARD BELZER; MARC
COOPER; STEPHEN J. MATHER;
SANDRA RICHARDS; CURREN WARF;
AMERICAN CIVIL LIBERTIES UNION OF
NORTHERN CALIFORNIA, a nonprofit
corporation; ACLU OF SOUTHERN
CALIFORNIA, a nonprofit No. 09-16684
corporation; AMERICAN CIVIL D.C. Nos.
LIBERTIES UNION OF SAN
DIEGO/IMPERIAL COUNTIES, a 3:06-cv-03596-
VRW
nonprofit corporation; ALL M:06-cv-01791-
PLAINTIFFS, VRW
Plaintiffs-Appellants,
v.
AT&T COMMUNICATIONS OF
CALIFORNIA, a corporation; AT&T
CORP., a corporation,
Defendants-Appellees,
UNITED STATES OF AMERICA,
Defendant-intervenor-Appellee.
HEPTING v. AT&T CORP. 21549
DENNIS P. RIORDAN; EDWARD
GERARD DE BONIS; ROBERT S.
GERSTEIN; ROD GORNEY; ROBERT
JACOBSON; VINCENT J. MANISCALCO;
CAROL SOBEL; AMERICAN CIVIL
LIBERTIES UNION OF NORTHERN
CALIFORNIA, a nonprofit
corporation; ACLU OF SOUTHERN
CALIFORNIA, a nonprofit No. 09-16685
corporation; AMERICAN CIVIL D.C. Nos.
LIBERTIES UNION OF SAN
DIEGO/IMPERIAL COUNTIES, a 3:06-cv-03574-
VRW
nonprofit corporation; ALL M:06-cv-01791-
PLAINTIFFS, VRW
Plaintiffs-Appellants,
v.
VERIZON COMMUNICATIONS, INC., a
corporation; VERIZON,
Defendants-Appellees,
UNITED STATES OF AMERICA,
Defendant-intervenor-Appellee.
21550 HEPTING v. AT&T CORP.
GLEN CHULSKY; ALEJANDRO
TROMBLEY; SAMUEL FISHER; OMAR
MORENO; PAUL ROBILOTTI; STEPHEN
TERNLUND; ANATOLY SAPOZNICK;
ALL PLAINTIFFS, No. 09-16686
Plaintiffs-Appellants,
D.C. Nos.
v. 3:06-cv-06570-
CELLCO PARTNERSHIP, DBA VRW
Verizon Wireless; VERIZON, M:06-cv-01791-
Verizon Communications, Inc.; VRW
AT&T, INC.; CINGULAR WIRELESS,
Defendants-Appellees,
UNITED STATES OF AMERICA,
Defendant-intervenor-Appellee.
CHARMAINE CROCKETT; A. JORIS
WATLAND; ANAKALIA KALUNA; KIM
COCO IWAMOTO; WILLIAM R.
MASSEY, individually and on
behalf of all others similarly
situated; ALL PLAINTIFFS, No. 09-16687
Plaintiffs-Appellants,
D.C. Nos.
v. 3:06-cv-06254-
VERIZON WIRELESS, (VAW) LLC; VRW
HAWAIIAN TELECOM, INC., DBA M:06-cv-01791-
Verizon Hawaii; NEXTEL WEST VRW
CORP., DBA Sprint; CINGULAR
WIRELESS LLC; VERIZON,
Defendants-Appellees,
UNITED STATES OF AMERICA,
Defendant-intervenor-Appellee.
HEPTING v. AT&T CORP. 21551
TRAVIS CROSS; JOHN ELDER;
GABRIEL FILEPPELLI; SAM
GOLDSTEIN; HEALING ARTS CENTER;
DAVID KADLEC; THE LIBERTARIAN
PARTY OF INDIANA; TIM PETERSON;
CAROLYN W. RADER; SAM
GOLDSTEIN INSURANCE AGENCY,
INC.; SEAN SHEPPARD; ALL
PLAINTIFFS,
Plaintiffs-Appellants,
v.
AT&T COMMUNICATIONS, INC.;
AT&T CORP.; AT&T No. 09-16688
TELEHOLDINGS, INC., FKA SBC; D.C. Nos.
BRIGHT HOUSE NETWORKS, LLC;
CINGULAR WIRELESS, LLC;
3:06-cv-06222-
VRW
COMCAST TELECOMMUNICATIONS, M:06-cv-01791-
INC.; INDIANA BELL TELEPHONE VRW
COMPANY, INC., DBA SBC
Ameritech Indiana; MCI
COMMUNICATIONS SERVICES, INC.;
NEXTEL WEST CORP., DBA Sprint
Nextel; SPRINT COMMUNICATIONS
COMPANY, L.P.; SPRING SPECTRUM
L.P.; TDS COMMUNICATIONS
SOLUTIONS, INC.; VERIZON WIRELESS
SERVICES, INC.; VERIZON,
Defendants-Appellees,
UNITED STATES OF AMERICA,
Defendant-intervenor-Appellee.
21552 HEPTING v. AT&T CORP.
JOAN DUBOIS; CHRISTOPHER YOWTZ;
REBECCA YOWTZ; ALL PLAINTIFFS,
Plaintiffs-Appellants,
v. No. 09-16690
AT&T CORP.; CHARTER D.C. Nos.
COMMUNICATIONS LLC; MCI
COMMUNICATIONS SERVICES, INC.;
3:06-cv-06387-
VRW
TRANSWORLD NETWORK CORP.; M:06-cv-01791-
VERIZON WIRELESS, LLC; VERIZON, VRW
Defendants-Appellees,
UNITED STATES OF AMERICA,
Defendant-intervenor-Appellee.
HEPTING v. AT&T CORP. 21553
TRAVIS CROSS; JOHN ELDER;
GABRIEL FILEPPELLI; SAM
GOLDSTEIN; HEALING ARTS CENTER;
DAVID KADLEC; THE LIBERTARIAN
PARTY OF INDIANA; TIM PETERSON;
CAROLYN W. RADER; SAM
GOLDSTEIN INSURANCE AGENCY,
INC.; SEAN SHEPPARD, individually
an on behalf of others similarly
situated; ALL PLAINTIFFS,
Plaintiffs-Appellants,
v.
AT&T COMMUNICATIONS OF
CALIFORNIA, INC.; AT&T CORP.;
AT&T TELEHOLDINGS, INC.; BRIGHT No. 09-16691
HOUSE NETWORKS, LLC; CINGULAR D.C. Nos.
WIRELESS, LLC; COMCAST
TELECOMMUNICATIONS, INC.; INDIANA
3:06-cv-06224-
VRW
BELL TELEPHONE COMPANY M:06-cv-01791-
INCORPORATED, other SBC VRW
Ameritech Indiana; MCI
WORLDCOM ADVANCED NETWORKS,
LLC; MCLEODUSA
TELECOMMUNICATIONS SERVICES,
INC.; NEXTEL WEST CORP., DBA
Sprint Nextel Corporation; SPRINT
COMMUNICATIONS COMPANY L.P.;
SPRING SPECTRUM L.P.; TDS
COMMUNICATIONS SOLUTIONS, INC.;
VERIZON WIRELESS SERVICES, LLC;
VERIZON,
Defendants-Appellees,
UNITED STATES OF AMERICA,
Defendant-intervenor-Appellee.
21554 HEPTING v. AT&T CORP.
PAT MAHONEY, individually, and
on behalf of all others similarly
situated; ALL PLAINTIFFS,
No. 09-16692
Plaintiffs-Appellants,
D.C. Nos.
v. 3:06-cv-05065-
AT&T COMMUNICATIONS, INC.; VRW
AT&T CORP., M:06-cv-01791-
Defendants-Appellees, VRW
UNITED STATES OF AMERICA,
Defendant-intervenor-Appellee.
PAMELA A. MAHONEY, on behalf of
herself and all others similarly
situated; ALL PLAINTIFFS, No. 09-16693
Plaintiffs-Appellants,
D.C. Nos.
v. 3:06-cv-05064-
VERIZON COMMUNICATIONS, INC.; VRW
VERIZON, M:06-cv-01791-
Defendants-Appellees, VRW
UNITED STATES OF AMERICA,
Defendant-intervenor-Appellee.
HEPTING v. AT&T CORP. 21555
MARK P. SOLOMON, MD, on behalf
of himself and all others similarly
situated; ALL PLAINTIFFS, No. 09-16694
Plaintiffs-Appellants,
D.C. Nos.
v. 3:06-cv-06388-
VERIZON COMMUNICATIONS, INC.; VRW
VERIZON, M:06-cv-01791-
Defendants-Appellees, VRW
UNITED STATES OF AMERICA,
Defendant-intervenor-Appellee.
RHEA FULLER, on behalf of herself
and all others similarly situated;
ALL PLAINTIFFS, No. 09-16696
Plaintiffs-Appellants,
D.C. Nos.
v. 3:06-cv-05267-
VERIZON COMMUNICATIONS, INC.; VRW
VERIZON WIRELESS, LLC; VERIZON, M:06-cv-01791-
Defendants-Appellees, VRW
UNITED STATES OF AMERICA,
Defendant-intervenor-Appellee.
21556 HEPTING v. AT&T CORP.
SHELLY D. SOUDER; ALL PLAINTIFFS,
Plaintiffs-Appellants, No. 09-16697
v. D.C. Nos.
AT&T INC.; AT&T CORP., 3:06-cv-05067-
VRW
Defendants-Appellees, M:06-cv-01791-
UNITED STATES OF AMERICA, VRW
Defendant-intervenor-Appellee.
STEVE DOLBERG, on behalf of
himself and all others similarly
situated; ALL PLAINTIFFS, No. 09-16698
Plaintiffs-Appellants, D.C. Nos.
v. 3:06-cv-05269-
VRW
AT&T, INC.; AT&T CORP.,
M:06-cv-01791-
Defendants-Appellees,
VRW
UNITED STATES OF AMERICA,
Defendant-intervenor-Appellee.
THERESA FORTNASH; ALL
PLAINTIFFS, No. 09-16700
Plaintiffs-Appellants,
D.C. Nos.
v. 3:06-cv-06385-
AT&T CORP., VRW
Defendant-Appellee, M:06-cv-01791-
UNITED STATES OF AMERICA, VRW
Defendant-intervenor-Appellee.
HEPTING v. AT&T CORP. 21557
D. CLIVE HARDY; ALL PLAINTIFFS,
Plaintiffs-Appellants, No. 09-16701
v. D.C. Nos.
AT&T CORPORATION, 3:06-cv-06924-
VRW
Defendant-Appellee,
M:06-cv-01791-
UNITED STATES OF AMERICA, VRW
Defendant-intervenor-Appellee.
JAMES C. HARRINGTON; RICHARD A.
GRIGG; LOUIS BLACK; THE AUSTIN
CHRONICLE; MICHAEL KENTOR, on
behalf of themselves and all others No. 09-16702
similarly situated; ALL PLAINTIFFS, D.C. Nos.
Plaintiffs-Appellants,
3:06-cv-05452-
VRW
v.
M:06-cv-01791-
AT&T, INC.; AT&T CORP.; AT&T VRW
OPERATIONS INC.; NEW CINGULAR
WIRELESS SERVICES, INC.,
Defendants-Appellees.
21558 HEPTING v. AT&T CORP.
TINA HERRON; BRANDY SERGI,
individually and as representative
of all similarly situated
individuals; ALL PLAINTIFFS,
Plaintiffs-Appellants,
v.
VERIZON GLOBAL NETWORKS, INC.; No. 09-16704
AT&T CORP.; AMERICAN
TELEPHONE AND TELEGRAPH
D.C. No.
3:06-cv-05343-
COMPANY; BELLSOUTH VRW
COMMUNICATION SYSTEMS, LLC;
BELLSOUTH TELECOMMUNICATIONS,
INC.; VERIZON,
Defendants-Appellees,
UNITED STATES OF AMERICA,
Defendant-intervenor-Appellee.
DARRYL HINES; ALEX KLABACKA;
JANA KLABACJA; ALL PLAINTIFFS,
Plaintiffs-Appellants,
v. No. 09-16706
VERIZON NORTHWEST, INC., an D.C. Nos.
active Washington corporation;
VERIZON COMMUNICATIONS, INC., an
3:06-cv-05341-
VRW
active Delaware corporation; M:06-cv-01791-
VERIZON, VRW
Defendants-Appellees,
UNITED STATES OF AMERICA,
Defendant-intervenor-Appellee.
HEPTING v. AT&T CORP. 21559
HOWARD JACOBS, a natural person;
LAURENCE KORNBLUM, a natural
person; KATHLEEN MILLER, a
natural person, on behalf of
themselves and all others similarly
situated; ALL PLAINTIFFS,
Plaintiffs-Appellants,
v.
AT&T CORP., a foreign No. 09-16707
corporation; AMERICAN TELEPHONE
D.C. Nos.
AND TELEGRAPH COMPANY, a
foreign corporation; BELLSOUTH 3:07-cv-02538-
VRW
TELECOMMUNICATIONS, INC., a
M:06-cv-01791-
foreign corporation; CINGULAR
VRW
WIRELESS LLC, a foreign limited
liability company; VERIZON
COMMUNICATIONS, INC., a foreign
limited liability company; VERIZON
FLORIDA, INC., a Florida
corporation; VERIZON,
Defendants-Appellees,
UNITED STATES OF AMERICA,
Defendant-intervenor-Appellee.
21560 HEPTING v. AT&T CORP.
CLAUDIA MINK; ALL PLAINTIFFS,
Plaintiffs-Appellants,
v.
AT&T COMMUNICATIONS OF THE No. 09-16708
SOUTHWEST, INC., a Delaware D.C. Nos.
corporation; SOUTHWESTERN BELL
TELEPHONE, L.P., a Texas limited
3:06-cv-07934-
VRW
partnership; SBC LONG DISTANCE, M:06-cv-01791-
LLC, a Delaware corporation, VRW
Defendants-Appellees,
UNITED STATES OF AMERICA,
Defendant-intervenor-Appellee.
RICHARD ROCHE; ALL PLAINTIFFS,
Plaintiffs-Appellants, No. 09-16709
v. D.C. Nos.
AT&T CORP., 3:07-cv-01243-
VRW
Defendant-Appellee,
M:06-cv-01791-
UNITED STATES OF AMERICA, VRW
Defendant-intervenor-Appellee.
HEPTING v. AT&T CORP. 21561
BENSON B. ROE; PAUL GOLTZ,
individually and on behalf of all
others similarly situated; ALL
PLAINTIFFS,
Plaintiffs-Appellants,
v.
AT&T CORP., a New York
corporation; AT&T INC., a No. 09-16710
Delaware corporation; SBC LONG D.C. Nos.
DISTANCE, LLC, a Delaware
limited liability company, DBA
3:06-cv-03467-
VRW
AT&T Long Distance; PACIFIC M:06-cv-01791-
BELL TELEPHONE COMPANY, a VRW
California corporation, DBA
AT&T California; AT&T
COMMUNICATIONS OF CALIFORNIA,
INC., a California corporation,
Defendants-Appellees,
UNITED STATES OF AMERICA,
Defendant-intervenor-Appellee.
ELAINE SPIELFOGEL-LANDIS, on
behalf of herself and all others
similarly situated; ALL PLAINTIFFS, No. 09-16712
Plaintiffs-Appellants,
D.C. Nos.
v. 3:06-cv-04221-
MCI, LLC, a Delaware limited VRW
liability company; VERIZON, M:06-cv-01791-
Defendants-Appellees, VRW
UNITED STATES OF AMERICA,
Defendant-intervenor-Appellee.
21562 HEPTING v. AT&T CORP.
STUDS TERKEL, (now deceased);
BARBARA FLYNN CURRIE; DIANE C.
GERAGHTY; GARY S. GERSON; JAMES
D. MONTGOMERY; QUENTIN YOUNG,
on behalf of themselves and all
others similarly situated; AMERICAN No. 09-16713
CIVIL LIBERTIES UNION OF ILLINOIS, D.C. Nos.
INC.; ALL PLAINTIFFS,
Plaintiffs-Appellants,
3:06-cv-05340-
VRW
v. M:06-cv-01791-
VRW
AT&T CORP.; ILLINOIS BELL
TELEPHONE CO., DBA AT&T
Illinois; UNITED STATES OF
AMERICA,
Defendants-Appellees.
HERBERT WAXMAN, on behalf of
himself and all others similarly
situated; ALL PLAINTIFFS, No. 09-16717
Plaintiffs-Appellants, D.C. Nos.
v. 3:06-cv-06294-
VRW
AT&T CORP.,
M:06-cv-01791-
Defendant-Appellee,
VRW
UNITED STATES OF AMERICA,
Defendant-intervenor-Appellee.
HEPTING v. AT&T CORP. 21563
STEVEN LEBOW, Rabbi; STEVEN
BRUNING; CATHY BRUNING; JONNIE
STARKEY; BRIAN BRADLEY; BARRY
KALTMAN; MEREDITH KALTMAN; No. 09-16719
ALL PLAINTIFFS,
D.C. Nos.
Plaintiffs-Appellants,
v. 3:07-cv-00464-
VRW
BELL SOUTH CORPORATION; M:06-cv-01791-
CINGULAR WIRELESS LLC; SPRINT VRW
NEXTEL CORPORATION; NATIONAL
SECURITY AGENCY,
Defendants-Appellees.
21564 HEPTING v. AT&T CORP.
RAY ANDERSON; COLLIN BABER;
MARK BARKER; JOHN BARRETT;
ANTHONY BARTELEMY; WILLIAM
BETZ; FRAN BLAMER; TRUDY BOND;
KRISTEN BRINK; SHANE BRINK;
MICHAEL BROOKS; PAUL BRUNEY;
PETER CATIZONE; STEVE
CHRISTIANSON; JOHN CLARK;
KINGSLEY CLARK; THOMAS M.
CLEAVER; GERARD P. CLERKIN;
PETER B. COLLINS; KRIS COSTA; No. 09-16720
MARK COSTA; JULIE DAVIS; SHARON D.C. Nos.
L. DAVIS; TONI DIDONA; THERESA
R. DUFFY; THOMAS S. DWYER; 3:07-cv-02029-
VRW
THOMAS MICHAEL FAIN; SHAWN M:06-cv-01791-
FITZGIBBONS; JOHN FITZPATRICK; VRW
JENNIFER FLORIO; MARGARET
FRANKLIN; DAWN FURLER; C.
GARIFO; DIANE GAVLINSKI; JOSEPH
GEHRING; JANE GENTILE-YOUD;
MARK GENTILE-YOUD; G.
LAWRENCE GETTIER; LINDA GETTIER;
LINDA J. GETTIER; JIT GILL; MIKE
GILMORE; JAYSON GLEASON; MARC
GOLDSTONE; TODD GRAFF; JANET
GRANJA; SUSAN GROSSMAN;
HEPTING v. AT&T CORP. 21565
STEPHANIE GUSTAVE; PAM HADDON;
VERN HADDON; DON HAWKINS;
DONNA HAWKINGS; JOSE V.
HEINERT; LAMAR HENDERSON;
CAROLYN R. HENSLEY; DOUGLAS S.
HENSLEY; DONALD HERRON;
JENNIFER HONTZ; JOYCE JACKSON;
ANDREW JAFFE; RANDEL JAMES;
MICHAEL JOHNSON; DIANE JULIANO;
FAY KAISER; RAJENDRAM KRISHNAN;
BARBARA LANGER; MICHAEL LAVO;
FRED LEAK; KEN LEHA; BEN
LINDSEY; LISA LOCKWOOD; MS.
LODGE; NANCY K. LOREY; MICHAEL
T. LYDA; ELEANOR M. LYNN; ESQ.;
TERRY MANCOUR; CHARLENE MANN;
REV.; JON PAUL MCCLELLAN;
ALICIA MCCOLLUM; JAMES
MCGRATTAN; REV. JOE MCMURRAY;
STEPHANIE MEKET; CLYDE MICHAEL
MORGAN; THEODORE R. MORRIS;
SHERI A. MUELLER; PROF. ROBERT
NEWBY; FRAN NOBILE; SERGE
POPPER; ILENE PRUETT; DR.
MICHAEL REUSCH; MERRILYN ROME;
MICHELE ROSEN; MICHELE S.
ROTHMEL; KEVIN SHAWLER; GREG
L. SMITH; HARRIS SONDAK; JAMES
VANALSTINE; CHRIS VON OBENAUER;
21566 HEPTING v. AT&T CORP.
DEADRIA FARMER-PAELLMANN; DAN
PATTON; RAY PENA; CONSTANCE
PHILLIPS; MARK PLANTE; JEREMY
PUHLMAN; MARTIN RAZO; DANIEL
REIMANN; MARK RICHARDS; LINDA
RITHKIS; WILLIAM ROBINETTE; FRED
ROGERS; DARLENE ROGERS;
KATHLEEN ROGERS; WILLIAM J.
ROMANSKY; BRONSON ROSIER; JOSH
SEEFRIED; ANNA F. SHALLENBERGER;
ROYCE SHEPARD; ROBERT SIDEN;
GREGORY L. SMITH; CHRISTIAN
STALBERG; MICHAEL L. STEPHAN;
ROBERT STEWART; DONNA A.
STONE; REGINA SUNBERG; WILLIAM
R. SWEENEY; JR.; DAVID TAYLOR;
APRIL TIPE; ALLEN T. TRADER III;
BARRY W. TRIBBLE; FRED
TRINKOFF; THOMAS VILAR; VICKIE
VOTAW; LEON DWIGHT WALLACE;
ACHIENG WARAMBO; ULRICH
GEISTER; DAVID WHITE; JANE
WINSTON; KEVIN WRIGHT; JOEL
AINGER; CAROL COSE; DEBORAH
DOUGHERTY; JAMES FLYNN; IRENE
KING; PAUL KRAFT; GINA DE
MIRANDA; CATALINA R. THOMPSON;
MARY LEAH WEISS; ELIZABETH
ARNONE; ELEANOR LYNN; JAY H.
ROWELL; DANIEL REIMANN;
HEPTING v. AT&T CORP. 21567
VIVIAN PHILLIPS; JEFFREY G.
MARSOCCI; BRIDGET IRVING; JAMES
HALL; JOHN MCINTYRE; BETH
WHITE; BRAD MARSTON; AND PAUL
SUNBERG,
Plaintiffs-Appellants,
v.
VERIZON COMMUNICATIONS, INC.;
NATIONAL SECURITY AGENCY;
GEORGE W. BUSH; BELLSOUTH
CORPORATION; AT&T CORPORATION;
AT&T INC.; VERIZON,
Defendants-Appellees,
UNITED STATES OF AMERICA,
Defendant-intervenor-Appellee.
JAMES JOLL; RAMON GOGGINS; IAN
WALKER; JAMES NURKIEWICZ, on
behalf of themselves and all others
similarly situated; ALL PLAINTIFFS, No. 09-16723
Plaintiffs-Appellants, D.C. Nos.
3:06-cv-05485-
v.
VRW
AT&T CORP.; AT&T INC.; M:06-cv-01791-
VERIZON COMMUNICATIONS, INC.; VRW
BELLSOUTH CORP.; VERIZON,
Defendants-Appellees, OPINION
UNITED STATES OF AMERICA,
Defendant-intervenor-Appellee.
21568 HEPTING v. AT&T CORP.
Appeal from the United States District Court
for the Northern District of California
Vaughn R. Walker, District Judge, Presiding
Argued and Submitted
August 31, 2011—Seattle, Washington
Filed December 29, 2011
Before: Harry Pregerson, Michael Daly Hawkins, and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge McKeown
HEPTING v. AT&T CORP. 21571
COUNSEL
Kevin Stuart Bankston, ELECTRONIC FRONTIER FOUN-
DATION, San Francisco, California; Aram Antaramian,
LAW OFFICE OF ARAM ANTARAMIAN, Berkeley, Cali-
fornia; Richard R. Wiebe, LAW OFFICE OF RICHARD R.
WIEBE, San Francisco, California; Thomas E. Moore, III,
The Moore Law Group, Palo Alto, California, Cindy Cohn,
ELECTRONIC FRONTIER FOUNDATION, San Francisco,
California; Gary Edward Mason and Nicholas A. Migliaccio,
Mason LLP, Washington, District Of Columbia; Michael A.
St. Pierre, Revens Revens & St. Pierre, Warwick, Rhode
Island; Julia Harumi Mass, ACLU FOUNDATION OF
NORTHERN CALIFORNIA, San Francisco, California;
Peter Jay Eliasberg, ACLU FOUNDATION OF SOUTHERN
CALIFORNIA, Los Angeles, California, Vincent Ian Parrett,
MOTLEY RICE LLC, Mt. Pleasant, South Carolina; Roger L.
Mandel, LACKEY HERSHMAN LLP, Dallas, Texas; Marc
21572 HEPTING v. AT&T CORP.
R. Stanley, STANLEY MANDEL & IOLA LLP, Dallas,
Texas; Michael D. Donovan, DONOVAN, SEARLES, LLC,
Philadelphia, Pennsylvania; M. Stephen Turner, Broad & Cas-
sel, Tallahassee, Florida; Gerald Edward Meunier, Gains-
burgh Benjamin David Meunier & Warshauer, L.L.C., New
Orleans, Louisiana; R. James George, Jr., George & Brothers
LLP, Austin, Texas, Val P. Exnicios, Liska Exnicios & Nun-
gesser, New Orleans, Louisiana; Christopher A. Slater, Slater
Ross, Portland, Oregon; Brian Hugh Adler, Bader Stillman &
Adler PL, Margate, Florida; Sam J. Alton, Stone Leyton Ger-
sham PC, St. Louis, Missouri; Barry Himmelstein, LIEFF
CABRASER HEIMANN & BERNSTEIN, LLP, San Fran-
cisco, California; Harvey Grossman, Roger Baldwin Founda-
tion of ACLU, Inc., Chicago, Illinois; Clinton A. Krislov,
KRISLOV & ASSOCIATED, LTD, Chicago, Illinois; James
M. Evangelista, Evangelista & Associates, LLC, Atlanta,
Georgia; Carl Mayer, Mayer Law Group LLC, Princeton,
New Jersey; Steven Edward Schwarz, The Law Offices of
Steven E. Schwarz, Chicago, Illinois, for the plaintiffs-
appellants.
Michael Kellogg, Kellogg, Huber, Hansen, Todd, Evans &
Figel, P.L.L.C., Washington, District Of Columbia, for the
defendant-appellee.
Thomas Mark Bondy, DOJ – U.S. Department of Justice,
Washington, District Of Columbia, for the defendant-
intervenor-appellee.
Howard Merrill Wasserman, FIU COLLEGE OF LAW,
MIAMI, Florida, for the Amicus Curiae Law Professors in
support of appellees.
HEPTING v. AT&T CORP. 21573
OPINION
McKEOWN, Circuit Judge:
These consolidated appeals arise from claims that major
telecommunications carriers assisted the government with
intelligence gathering following the terrorist attacks on Sep-
tember 11, 2001. News reports that the National Security
Agency (“NSA”) undertook a warrantless eavesdropping pro-
gram with alleged cooperation by telecommunications compa-
nies spawned dozens of lawsuits by customers against the
companies, along with multiple suits against the NSA and
other government actors. Tash Hepting and other residential
telephone customers (collectively “Hepting”) challenge the
legality of the companies’ participation in the surveillance
program. Partially in response to these suits, Congress held
hearings and ultimately passed legislation that provided retro-
active immunity to the companies, subject to various condi-
tions, but expressly left intact potential claims against the
government. The sole issue before us is the constitutionality
of § 802 of the Foreign Intelligence Surveillance Act
(“FISA”), 50 U.S.C. § 1885a, known as the FISA Amend-
ments Act of 2008, which allows for immunity for the tele-
communication companies. Like the district court, we
conclude that § 802 passes constitutional muster.
BACKGROUND
I. The Lawsuits
This appeal includes thirty-three actions against the
nation’s telecommunications companies, originally filed in
2006. The complaints were filed in the wake of news reports
in December 2005 that President Bush had issued an order
permitting the NSA to conduct warrantless eavesdropping.
Under a program known as the Terrorist Surveillance Pro-
gram (“TSP”), the NSA “had obtained the cooperation of tele-
communications companies to tap into a significant portion of
21574 HEPTING v. AT&T CORP.
the companies’ telephone and e-mail traffic, both domestic
and international.” James Risen & Eric Lichtblau, Bush Lets
U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 16,
2005, at A1. The President later acknowledged that in the
weeks following September 11, he authorized a “terrorist sur-
veillance program to detect and intercept al Qaeda Communi-
cations” and stated that the program applied “only to
international communications, in other words, [where] one
end of the communication [was] outside the United States.”
President George W. Bush, Speech at the National Security
Agency (Jan. 25, 2006) available at http://georgewbush-
whitehouse.archives.gov/news/releases/2006/01/20060125-
1.html. The complaints “challenge[d] the legality of Defen-
dants’ participation in a secret and illegal government pro-
gram to intercept and analyze vast quantities of Americans’
telephone and Internet communications.” Hepting alleged that
the telecommunications companies provided the government
with direct access to nearly all of the communications passing
through their domestic telecommunications facilities. These
suits were consolidated in August 2006 in the Northern Dis-
trict of California under the multidistrict litigation (“MDL”)
provisions of 28 U.S.C. § 1407. Although not a defendant in
these suits, the United States intervened to seek dismissal
under § 802 of the FISA.
II. The 2008 Amendments to the FISA
While the underlying actions were pending in district court,
and partially in response to these suits, Congress enacted the
FISA Amendments Act of 2008, Pub. L. No. 110-261, 122
Stat. 2435, codified at 50 U.S.C. § 1885a. Among the amend-
ments is § 802, an immunity provision and related procedures
that are triggered if the United States Attorney General certi-
fies to one or more of five conditions. In such case, no civil
action may be maintained “against any person for providing
assistance to an element of the intelligence community.”
§ 802(a).
HEPTING v. AT&T CORP. 21575
This amendment dovetails with an existing comprehensive
statutory framework that grants the Executive Branch author-
ity to enlist telecommunications companies for intelligence
gathering, to protect those companies from suit, and to keep
their efforts secret. Acknowledging the existing legislation,
Congress deemed an amendment necessary to empower the
Attorney General to immunize from suit telecommunications
companies that had cooperated with the government’s intelli-
gence gathering, including post-September 11 activities under
the TSP.
Subsection 802(a) reads as follows:
(a) Requirement for certification. Notwithstanding
any other provision of law, a civil action may not lie
or be maintained in a Federal or State court against
any person for providing assistance to an element of
the intelligence community, and shall be promptly
dismissed, if the Attorney General certifies to the
district court of the United States in which such
action is pending that—
(1) any assistance by that person was provided
pursuant to an order of the court established under
section 103(a) [50 U.S.C. § 1803(a)] directing such
assistance;
(2) any assistance by that person was provided
pursuant to a certification in writing under section
2511(2)(a)(ii)(B) or 2709(b) of title 18, United States
Code;
(3) any assistance by that person was provided
pursuant to a directive under section 102(a)(4) [50
U.S.C. § 1802(a)(4)], 105B(e) [50 U.S.C.
§ 1805b(e)], as added by section 2 of the Protect
America Act of 2007 (Public Law 110-55), or 702(h)
[50 U.S.C. § 1881a(h)] directing such assistance;
21576 HEPTING v. AT&T CORP.
(4) in the case of a covered civil action, the assis-
tance alleged to have been provided by the electronic
communication service provider was—
(A) in connection with an intelligence activity
involving communications that was—
(i) authorized by the President during the
period beginning on September 11, 2001, and ending
on January 17, 2007; and
(ii) designed to detect or prevent a terrorist
attack, or activities in preparation for a terrorist
attack, against the United States; and
(B) the subject of a written request or directive,
or a series of written requests or directives, from the
Attorney General or the head of an element of the
intelligence community (or the deputy of such per-
son) to the electronic communication service pro-
vider indicating that the activity was—
(i) authorized by the President; and
(ii) determined to be lawful; or
(5) the person did not provide the alleged assis-
tance.
Section 802(a) permits the Attorney General to certify to a
court that assistance was provided under at least one of a
series of situations—ranging from a Foreign Intelligence Sur-
veillance Court order, a national security letter, an Attorney
General directive regarding FISA-authorized warrantless sur-
veillance to participation in the TSP—or that no assistance
was provided. This certification is subject to judicial review
under a substantial evidence standard: “[a] certification under
subsection (a) shall be given effect unless the court finds that
HEPTING v. AT&T CORP. 21577
such certification is not supported by substantial evidence
provided to the court pursuant to this section.” § 802(b)(1).
Section 802(c) details the court’s handling of classified
information. If the Attorney General declares that public dis-
closure of the certification and related materials “would harm
the national security of the United States,” then the court must
review the material ex parte and in camera. The court may
not reveal the specific subsection under which the certifica-
tion was made nor may the court reveal any such material.
Instead, the court must simply state whether the case is dis-
missed and a description of the legal standards governing the
order.
Finally, § 802(d) provides that
[a]ny plaintiff or defendant in a civil action may sub-
mit any relevant court order, certification, written
request, or directive to the district court referred to
in subsection (a) for review and shall be permitted to
participate in the briefing or argument of any legal
issue in a judicial proceeding conducted pursuant to
this section, but only to the extent that such partici-
pation does not require the disclosure of classified
information to such party.
All classified materials must be reviewed in camera and ex
parte and any part of the court’s order reviewing such infor-
mation must be under seal.
The Senate Select Committee on Intelligence issued a
report on the amendments, discussing, among other provi-
sions, § 203, which was later codified as the FISA § 802. See
S. Rep. 110-209 (2007). The report contains a lengthy back-
ground section describing “Pending Litigation” and “Civil
Suits Against Electronic Communication Service Providers,”
leaving little doubt that these cases were among the intended
targets of the amendments.
21578 HEPTING v. AT&T CORP.
The new immunity provision “reflect[ed] the Committee’s
belief that there is a strong national interest in addressing the
extent to which the burden of litigation over the legality of
surveillance should fall on private parties.” Id. at 8. The Com-
mittee noted the “importance of the private sector in security
activities.” Id. at 5. It emphasized that electronic intelligence
gathering depends in great part on cooperation from private
companies, id. at 9, and that if litigation were allowed to pro-
ceed against persons allegedly assisting in such activities, “the
private sector might be unwilling to cooperate with lawful
Government requests in the future.” Id. at 10. The “possible
reduction in intelligence that might result . . . is simply unac-
ceptable for the safety of our Nation.” Id. The Committee
pointed to the pending suits, including this one, noting that
“even if these suits are ultimately dismissed on state secrets
or some other grounds, litigation is likely to be protracted.”
Id. at 7. Thus Congress explicitly crafted § 802 to allow for
the dismissal of cases against telecommunications companies.
III. The Attorney General’s Certification under § 802
Shortly after § 802(a) became law, Attorney General
Michael Mukasey submitted to the district court both a public
and a classified certification under the statute. In his public
declaration, Attorney General Mukasey “confirm[ed] the exis-
tence of the TSP” but “denied the existence of the alleged
dragnet.” He “certif[ied] that the claims asserted in the civil
actions pending in these consolidated proceedings brought
against electronic communication service providers fall within
at least one provision contained in Section 802(a) of the
FISA.” He further explained that disclosure of the classified
certification “would cause exceptional harm to the national
security of the United States” and “must therefore be
reviewed in camera, ex parte by the Court” pursuant to
§ 802(c)(2). Mukasey concluded that “the provider-
defendants are entitled to statutory protection based on at least
one of the provisions contained in Section 802(a)(1) to (5) of
HEPTING v. AT&T CORP. 21579
the FISA, which includes the possibility that a provider defen-
dant did not provide any assistance.”
IV. The District Court Decision
With the filing of the Attorney General’s certification, the
United States intervened and moved to dismiss all of the
claims against the telecommunications companies. The dis-
trict court granted the motion and dismissed the complaints.
Al-Haramain Islamic Found., Inc. v. Bush (In re NSA Tel-
comms. Records Litig.), 633 F. Supp. 2d 949, 955 (N.D. Cal.
2009).
In a thoughtful and lengthy opinion, the district court char-
acterized § 802 as “sui generis among immunity laws.”Id. at
959. The district court considered Hepting’s multiple claims
“that constitutional defects make the statute unenforceable.”
Id. at 959-60. In the end, the district court rejected each of
these claims.
Hepting also made “a series of arguments to the effect that,
on the merits and putting alleged infirmities in section 802
aside, the Attorney General’s certifications are inadequate
under section 802’s own terms to support dismissal of these
actions.” Id. at 975. In support of these claims, Hepting
pointed to specific evidence offered with respect to the sur-
veillance. Unpersuaded, the district court wrote as follows:
While plaintiffs have made a valiant effort to chal-
lenge the sufficiency of certifications they are barred
by statute from reviewing, their contentions under
section 802 are not sufficiently substantial to per-
suade the court that the intent of Congress in enact-
ing the statute should be frustrated in this proceeding
in which the court is required to apply the statute.
The court has examined the Attorney General’s sub-
missions and has determined that he has met his bur-
den under section 802(a).
21580 HEPTING v. AT&T CORP.
Id. at 976.
ANALYSIS
On appeal, Hepting challenges only the facial constitution-
ality of § 802, not its application. He does not appeal the dis-
trict court’s determination that the substance of the Attorney
General’s certifications (both classified and unclassified) was
supported by substantial evidence and that the Attorney Gen-
eral met his statutory burden. As a consequence, our legal
analysis is not dependent on the details contained within the
certifications.1
Three of Hepting’s arguments focus on separation of pow-
ers: (1) bicameralism and presentment; (2) nondelegation; and
(3) congressional interference with litigation. The fourth
claim, which draws upon separation of powers and due pro-
cess, is that the statute effectively forecloses litigation of the
claims. Finally, Hepting characterizes his claims as a property
interest and seeks relief under the Due Process Clause of the
Fifth Amendment for deprivation of an opportunity to be
heard before an unbiased adjudicator and of his right to mean-
ingful notice in light of the statutory secrecy provisions.
I. Separation-of-Powers Challenges
A. Bicameralism and Presentment
[1] We first consider whether, in view of the requirements
of bicameralism and presentment found in Article I, § 7 of the
Constitution, § 802 effectively amends or negates existing law
without going through the constitutionally-mandated legisla-
tive process. Relying primarily on Clinton v. City of New
1
The district court considered both the public and classified certifica-
tions. Because this appeal raises only the constitutionality of § 802 and not
its specific application in this case, we need not consider the classified
materials.
HEPTING v. AT&T CORP. 21581
York, 524 U.S. 417 (1998), in which the Supreme Court
struck down the Line Item Veto Act as unconstitutional, Hept-
ing correctly asserts that “[a]mendment and repeal of statutes,
no less than enactment, must conform with Art[icle] I.” INS
v. Chadha, 462 U.S. 919, 954 (1983). Similarly, there is no
“provision in the Constitution that authorizes the President to
enact, to amend, or to repeal statutes.” Clinton, 524 U.S. at
438. Hepting’s argument fails, however, because in enacting
§ 802, Congress did not give the Executive the power to
enact, amend or repeal a statute.
In Clinton, the Supreme Court characterized the Line Item
Veto Act as giving “the President the power to ‘cancel in
whole’ ” tax and spending provisions that had been passed by
both houses of Congress and signed into law. Id. at 436 (cita-
tion omitted). The line item veto prevented the cancelled
items “from having legal force or effect,” though the remain-
ing provisions “continue[d] to have the same force and effect
as they had when signed into law.” Id. at 437-38. The Court
concluded “that cancellations pursuant to the Line Item Veto
Act are the functional equivalent of partial repeals of Acts of
Congress that fail to satisfy Article I, § 7.” Id. at 444.
[2] Hepting argues that § 802 is similar to the Line Item
Veto Act because the Executive may partially repeal or pre-
empt the law governing electronic surveillance on a case-by-
case basis by certifying to one of the five circumstances set
forth in § 802(a). This argument glosses over a crucial distinc-
tion between § 802 and the Line Item Veto Act: Under § 802
the Executive does not change or repeal legislatively enacted
law, as was the case with the Line Item Veto. The law
remains as it was when Congress approved it and the Presi-
dent signed it. In other words, nothing effected by the Attor-
ney General “prevent[s] the item from having legal force or
effect.” Clinton, 524 U.S. at 437 (internal quotation marks
omitted). Unlike the line item veto, the Attorney General’s
certification implements the law as written and does not frus-
trate or change the law as enacted by Congress.
21582 HEPTING v. AT&T CORP.
[3] Through the amendment to the FISA, Hepting’s causes
of action are now subject to an additional statutory defense.
As a practical matter, a discretionary decision by the Attorney
General that invokes a defense or immunity hardly represents
an impermissible statutory repeal. It is not uncommon for
executive officials to have authority to trigger a defense or
immunity for a third party. The United States Code is dotted
with statutes authorizing comparable executive authority.2 For
example, executive officials regularly grant immunity from
the fruits of compelled testimony in criminal prosecutions.
See 18 U.S.C. § 6003; see also 28 U.S.C. § 2679(d) (allowing
the government to trigger immunity by certifying that a defen-
dant is acting within the scope of federal employment); cf.
Republic of Iraq v. Beaty, ___ U.S. ___, 129 S. Ct. 2183,
2192 (2009) (A provision of the emergency Wartime Supple-
mental Appropriations Act “did not repeal anything, but
merely granted the President authority to waive the applica-
tion of particular statutes to a single foreign nation.” (citing
Clinton, 524 U.S. at 443-45)); Chadha, 462 U.S. at 953 n.16
(noting that the Attorney General’s discretionary authority
under the INA to suspend removal does not implicate Article
I, § 7). An executive grant of immunity or waiver of claim has
never been recognized as a form of legislative repeal. Section
802 thus does not violate the bicameralism and presentment
requirements of Article I, § 7.
B. The Nondelegation Doctrine
[4] The nondelegation doctrine is central to the notion of
separation of powers. See Mistretta v. United States, 488 U.S.
361, 371 (1989) (“The nondelegation doctrine is rooted in the
principle of separation of powers that underlies our tripartite
2
The Brief of the Amici Law Professors includes an appendix that con-
tains a laundry list of “Selected Statutes Authorizing Executive Branch
Officials to Waive Existing Laws in Certain Circumstances” ranging from
the Intelligence Authorization Act, 21 U.S.C. § 1903(g)(1), to the Protect
our Children Act of 2008, 42 U.S.C. § 17616(a)(3)(C).
HEPTING v. AT&T CORP. 21583
system of Government.”). The Supreme Court has only twice
invalidated legislation under this doctrine, the last time being
seventy-five years ago.
[5] Article I, § 1 of the Constitution provides that “[a]ll
legislative Powers herein granted shall be vested in a Con-
gress of the United States.” In practice, of course, Congress
delegates authority frequently. The relevant question is how,
when, and under what circumstances Congress may delegate
its authority. The Supreme Court’s answer: “[W]hen Congress
confers decisionmaking authority upon agencies Congress
must lay down by legislative act an intelligible principle to
which the person or body authorized to act is directed to con-
form.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472
(2001) (emphasis and internal quotation marks omitted).
“Only if [a court] could say that there is an absence of stan-
dards for the guidance of the Administrator’s action, so that
it would be impossible in a proper proceeding to ascertain
whether the will of Congress has been obeyed, would [it] be
justified in overriding its choice of means for effecting its
declared purpose . . . .” Yakus v. United States, 321 U.S. 414,
426 (1944).
In applying the intelligible principle test to congressional
delegations, the Supreme Court “has been driven by a practi-
cal understanding that in our increasingly complex society,
replete with ever changing and more technical problems, Con-
gress simply cannot do its job absent an ability to delegate
power under broad general directives.” Mistretta, 488 U.S. at
372. The Court summed up its nondelegation jurisprudence as
follows: “[I]n the history of the Court we have found the req-
uisite ‘intelligible principle’ lacking in only two statutes, one
of which provided literally no guidance for the exercise of
discretion, and the other of which conferred authority to regu-
late the entire economy on the basis of no more precise a stan-
dard than stimulating the economy by assuring ‘fair
competition.’ ” Whitman, 531 U.S. at 474 (citing Panama
Refining Co. v. Ryan, 392 U.S. 388 (1935); A.L.A. Schechter
21584 HEPTING v. AT&T CORP.
Poultry Corp. v. United States, 295 U.S. 495 (1935)). The
text, structure, history, and context of § 802 together demon-
strate the existence of an intelligible principle.
Hepting argues that § 802 contravenes the nondelegation
doctrine because Congress imposed no standard or intelligible
principle governing the Attorney General’s certification
authority. The text of § 802 sets out five statutory categories
—ranging from the specific TSP program to the fact that no
assistance was provided—that delineate and circumscribe the
Attorney General’s certification discretion. Hepting faults the
legislation because it lacks guidance on whether the Attorney
General should exercise his discretion. In our view, the Attor-
ney General’s discretion whether to invoke a specific subsec-
tion does not eviscerate the “intelligible principle” standard.
A review of standards upheld by the Court underscores the
concrete and intelligible nature of the text of § 802. For exam-
ple, the Court has countenanced as intelligible seemingly
vague principles in statutory text such as whether something
would “unduly or unnecessarily complicate,” or be “generally
fair and equitable,” in the “public interest,” or “requisite to
protect the public health.” Whitman, 531 U.S. at 474-76; Am.
Power & Light Co. v. SEC, 329 U.S. 90, 104 (1946); Yakus,
321 U.S. at 420; Nat’l Broadcasting Co. v. United States, 319
U.S. 190, 225-26 (1943). Statutes authorizing the recovery of
“excessive profits,” and allowing action when “necessary to
avoid an imminent hazard to public safety” also passed the
test. Touby v. United States, 500 U.S. 160, 166 (1991);
Lichter v. United States, 334 U.S. 742, 778-79 (1948). The
Supreme Court has “almost never felt qualified to second-
guess Congress regarding the permissible degree of policy
judgment that can be left to those executing or applying the
law.” Whitman, 531 U.S. at 474-75 (quoting Mistretta, 488
U.S. at 416 (Scalia, J., dissenting)). Indeed, the “hazard to
public safety” provision in Lichter is comparable to, if not
less specific than, the “designed to detect or prevent a terrorist
attack” language in § 802(4)(4). Never has the Court invali-
HEPTING v. AT&T CORP. 21585
dated a law simply because the Executive has the discretion
to act.
Section 802’s structure resembles that of similar statutes
that have been found valid. When considering the state-
sponsored terrorism exception to the FISA, the D.C. Circuit
explained that “Congress delineated the area of immunity and
the exception to the immunity, delegating to the Executive
only the authority to make a factual finding upon which the
legislatively enacted statute and the judicially exercised juris-
diction would partially turn.” Owens, 531 F.3d at 889. The
same is true regarding § 802. Congress created liability under
the FISA, as well as the immunity exception for private com-
panies, under certain circumstances. And Congress delegated
to the Executive the authority to trigger this immunity. See
infra Part III.A.
The legislative history also confirms our textual analysis of
the statute. In the context of nondelegation, the Supreme
Court has emphasized the role of legislative history, even
absent ambiguity in the statute. See Mistretta, 488 U.S. at 376
n.10 (“[L]egislative history, together with Congress’ directive
that the Commission begin . . . by ascertaining the average
sentence imposed in each category in the past, and Congress’
explicit requirement that the Commission consult with author-
ities in the field of criminal sentencing provide a factual back-
ground and statutory context that give content to the mandate
of the Commission.” (citing Am. Power & Light Co. v. SEC,
329 U.S. 90, 104-05 (1946))).
Following Mistretta, the D.C. Circuit also noted that when
the court reviews statutes under the nondelegation doctrine,
the court “do[es] not confine [itself] to the isolated phrase in
question, but utilize[s] all the tools of statutory construction,
including the statutory context and, when appropriate, the fac-
tual background of the statute to determine whether the statute
provides the bounded discretion that the Constitution
21586 HEPTING v. AT&T CORP.
requires.” Owens v. Republic of the Sudan, 531 F.3d 884, 890
(D.C. Cir. 2008). In short, context matters.
The Senate Select Committee Report goes far in explaining
the congressional concerns that motivated the passage of the
immunity provision. When considering how to respond to
lawsuits like this one, the Committee “recogniz[ed] the
importance of the private sector in assisting law enforcement
and intelligence officials in critical criminal justice and
national security activities.” S. Rep. 110-209 at 5. The Report
further states that “electronic surveillance for law enforce-
ment and intelligence purposes depends in great part on the
cooperation of the private companies that operate the Nation’s
telecommunication system.” Id. at 9. The intelligible principle
that comes through in the legislative history is one of protect-
ing intelligence gathering and national security information.
The fact that § 802 arises within the realm of national
security—a concern traditionally designated to the Executive
as part of his Commander-in-Chief power—further suggests
that the intelligible principle standard need not be overly
rigid. See U.S. Const. art. II, § 2, cl. 1; see also Dep’t of Navy
v. Egan, 484 U.S. 518, 527 (1988) (noting “constitutional
investment of power [over national security] in the President”
that “exists quite apart from any explicit congressional
grant”). The Supreme Court has repeatedly underscored that
the intelligible principle standard is relaxed for delegations in
fields in which the Executive has traditionally wielded its own
power. See, e.g., Loving, 517 U.S. at 772 (military affairs);
United States v. Curtiss-Wright Export Corp., 299 U.S. 304,
324 (1936) (foreign relations); Freedom to Travel Campaign
v. Newcomb, 82 F.3d 1421, 1438 (9th Cir. 1996) (same).
[6] Section 802 authorizes the Attorney General to act only
in narrow, definable situations, subject to review by the
courts. In sum, the text, structure, history, and context of
§ 802 contain an intelligible principle consistent with the
Constitution’s nondelegation doctrine.
HEPTING v. AT&T CORP. 21587
C. No Congressional Interference with Adjudication
Hepting asserts that § 802 offends the doctrine of separa-
tion of powers because it is a legislative incursion upon the
judicial branch. He claims that judicial review under § 802 “is
deferential to the point of meaninglessness,” taking issue with
the “substantial evidence” standard of review. To support his
argument, Hepting cites only two cases, neither of which illu-
minates his point, but instead contain broad pronouncements
on the proper role of the judiciary.
Hepting invokes Plaut v. Spendthrift Farm, Inc., 514 U.S.
211 (1995). But he does well not to dwell on this case because
the Supreme Court in Plaut struck down a very different
statute—one that “require[d] federal courts to reopen final
judgments in private civil actions.” Id. at 213. When com-
pared to Plaut, where Congress “attempted to set aside the
final judgment of an Article III court by retroactive legisla-
tion,” 514 U.S. at 230, Hepting’s separation of powers claim
as to § 802 is weak indeed. Nor does Crim v. Handley, 94
U.S. 652, 657 (1876), bolster Hepting’s argument. He cites it
only for the general proposition that courts review criminal
trials for errors of law, but Crim discusses the Seventh
Amendment and does not implicate Article III powers.
[7] On the other hand, there is a long line of cases uphold-
ing deferential standards of review for administrative factual
determinations in other statutory schemes. See, e.g., Dickin-
son v. Zurko, 527 U.S. 150, 152-61 (1999) (rejecting clearly
erroneous standard and reaffirming substantial evidence stan-
dard of review for agency findings); Universal Camera Corp.
v. NLRB, 340 U.S. 474, 490 (1951) (stating that substantial
evidence review is sufficient to fulfill the conventional judi-
cial function); Bonnichsen v. United States, 367 F.3d 864,
879-80 (9th Cir. 2004) (“We review the full agency record to
determine whether substantial evidence supports the agency’s
decision.”); Retlaw Broad. Co. v. NLRB, 53 F.3d 1002, 1006
(9th Cir. 1995) (“Credibility determinations by the ALJ are
21588 HEPTING v. AT&T CORP.
given great deference, and are upheld unless they are ‘inher-
ently incredible or patently unreasonable.’ ”) (citing Local
512, Warehouse & Office Workers v. NLRB, 795 F.2d 705,
712 (9th Cir. 1986)).
[8] Deferential review does not mean that courts abdicate
their judicial role. Section 802 does not represent a legislative
incursion into the independent decisionmaking and reviewing
authority of the courts. Given the judiciary’s long history and
experience with reviewing cases for substantial evidence,
review under § 802 is neither “partial” nor “meaningless” as
Hepting urges.
II. Separation of Powers and Due Process Challenges to
Claims Limitation
[9] Hepting claims § 802 forecloses a challenge to the gov-
ernment’s wiretapping program, thus violating due process
and separation of powers under Article III. Although Con-
gress granted immunity to private parties that assisted the
government, § 802 does not foreclose relief against govern-
ment actors and entities who are the primary players in the
alleged wiretapping. Hepting retains an independent judicial
avenue to address these claims.3
The Senate Report confirms this reading. “Only civil law-
suits against electronic communication service providers
alleged to have assisted the Government are covered under
this provision. The Committee does not intend for this section
to apply to, or in any way affect, pending or future suits
against the Government as to the legality of the President’s
3
As the district court pointed out, “the same plaintiffs who brought the
Hepting v. AT&T lawsuit . . . are now actively prosecuting those claims
in a separate suit . . . against government defendants. Al-Haramain, 633
F. Supp at 960. Notably, Hepting has a separate proceeding pending
against the government. See Jewel v. NSA, No. 08-4373 (N.D. Cal., filed
Sept. 18, 2008).
HEPTING v. AT&T CORP. 21589
program.” S. Rep. 110-209 at 8. The Committee determined
that “narrowly circumscribed civil immunity should be
afforded to [cooperating] companies.” Id. at 3. The report
continues, describing § 802 as “establish[ing] procedures by
which civil actions against those who assist the Government
shall be dismissed.” Id. at 10-11. Congress did not prohibit
adjudication of Hepting’s claims, it simply limited the uni-
verse of responsibility to government defendants.
[10] To be sure, a “serious constitutional question . . .
would arise if a federal statute were construed to deny any
judicial forum for a colorable claim.” Webster v. Doe, 486
U.S. 592, 603 (1988) (emphasis added). Separation of powers
concerns would be raised because “the appellant would have
no forum at all for the pursuit of her claims” and the court
“would thus be faced with a situation in which Congress has
enacted legislation and simultaneously declared that legisla-
tion to be immune from any constitutional challenge by the
plaintiff.” Bartlett v. Bowen, 816 F.2d 695, 703 (D.C. Cir.
1987). Such is not the situation here. The federal courts
remain a forum to consider the constitutionality of the
wiretapping scheme and other claims, including claims for
injunctive relief. The judiciary’s essential role in protecting
constitutional rights is not undermined simply because Hept-
ing is unable to bring twin claims against the telecommunica-
tions companies and the government.
III. Section 802 Does Not Violate Due Process
Hepting’s final argument—that § 802’s certification and
review procedures deprive him of liberty and property inter-
ests without sufficient process—rests on the Due Process
Clause of the Fifth Amendment. Hepting identifies his causes
of action against the telecommunications companies as the
property right at issue. We assume, without deciding, that he
21590 HEPTING v. AT&T CORP.
has such a right, even if minimal, as it does not affect the ulti-
mate outcome of the appeal.4
Hepting’s due process argument is twofold. He argues first
that the Attorney General’s certification is an adjudication
that denies claimants a de novo review before an unbiased
adjudicator. He then claims that the procedures under § 802
deny him meaningful notice of the government’s basis for
certification.
A. The Attorney General Was Not an Adjudicator
[11] Hepting’s initial complaint is that the Attorney Gen-
eral acts as a biased adjudicator when certifying immunity.
But Hepting’s focus on the role of the Attorney General mis-
apprehends the certification process. The Attorney General
certifies either that assistance was provided in narrowly
defined circumstances or that no assistance was offered. In
this capacity, the Attorney General does not function as an
adjudicator. See Owens, 531 F. 3d at 891-92 (citing cases and
describing executive decision making in the context of foreign
affairs as “factfinding”). Mere certification, which is the foun-
dation of immunity under § 802, is not tantamount to an adju-
dication.
The fact that the Attorney General may have supported the
4
The parties disagree as to when a cause of action becomes a property
right protected by the due process clause. Compare Lujan v. G & G Fire
Sprinklers, 532 U.S. 189, 195 (2001) (“assum[ing], without deciding,” that
a “claim for payment under [specified] contracts” was a property interest),
and Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982) (“[A]
cause of action is a species of property protected by the Fourteenth
Amendment’s Due Process Clause”), with Lyon v. Agusta, 252 F.3d 1078,
1086 (9th Cir. 2001) (holding that “a party’s property right in any cause
of action does not vest until a final unreviewable judgment is obtained.”)
(citing Grimsey v. Huff, 876 F.2d 738, 743-44 (9th Cir. 1989)), and Fields
v. Legacy Health System, 413 F.3d 943, 956 (9th Cir. 2005) (same). We
need not resolve this issue because § 802 provides sufficient process.
HEPTING v. AT&T CORP. 21591
legislation to amend the FISA has no legal import in this con-
text. Hepting views Attorney General Mukasey as operating
under “a structural, institutional bias” because he served dur-
ing the Bush Administration, which advocated for the legisla-
tion, and was counsel to the United States in these lawsuits.
He follows with the claim that Mukasey “had an actual bias
in this matter,” because he stated publicly that the immunity
provision was “important” and that immunity represented “a
fair and just result,” and also conveyed this opinion to mem-
bers of Congress.
[12] Hepting ignores that the Attorney General has a legiti-
mate policy role. It is well established that “[a]dministrators
. . . may hold policy views on questions of law prior to partici-
pating in a proceeding.” Ass’n of Nat’l Advertisers, Inc. v.
FTC, 627 F.2d 1151, 1174 (D.C. Cir. 1979) (quoted in United
States v. Payne, 944 F.2d 1458, 1476-77 (9th Cir. 1991)); see
also FTC v. Cement Inst., 333 U.S. 683, 702 (1948) (rejecting
a due process claim where agency head previously expressed
a view on the issue); Fidelity Television, Inc. v. FCC, 515
F.2d 684, 694 (D.C. Cir. 1975) (rejecting bias argument based
on prior Commission decisions and Chairman’s testimony
before Congress). Public officials are presumed not to be
biased; expressing an opinion, even a strong one, on legisla-
tion, does not disqualify an official from later responding to
a congressional mandate incorporating that opinion. Withrow
v. Larkin, 421 U.S. 35, 47 (1975). The ultimate legislative
judgment regarding immunity for the telecommunications
companies was made by Congress, not the Attorney General,
and falls to the courts, not the Attorney General, to review.
B. Section 802 Provides Sufficient Notice and Process
The question we next address is whether the judicial review
procedures under § 802 satisfy the Due Process Clause. Under
§ 802(a), no claim may be brought against any person provid-
ing certain categories of assistance, as certified by the Attor-
ney General. If the Attorney General files a declaration that
21592 HEPTING v. AT&T CORP.
disclosure of his certification or any supplemental materials
“would harm the national security of the United States, the
court shall . . . review such certification and supplemental
materials in camera and ex parte.” § 802(c). “[A]ny public
disclosure concerning such certification and the supplemental
materials [is limited] . . . to a statement as to whether the case
is dismissed and a description of the legal standards that gov-
ern the order,” without disclosing the specific subsection of
the certification. Id.
In targeting § 802, Hepting challenges only a narrow subset
of the statutory provisions that render the proceedings secret.
Two important points bear noting: the requirements of § 802
piggyback on a preexisting framework of secrecy statutes not
challenged by Hepting; and the scope of the § 802 certifica-
tion is itself narrow.
[13] The FISA amendments essentially left untouched the
basic framework of statutes that already provide broad protec-
tion of the secrecy of court orders and certifications that rest
on national security materials. These statutes range from certi-
fication provisions under the Wiretap Act, 18 U.S.C.
§ 2511(2)(a)(ii)(B), to authorization for telecommunication
companies’ provision of information under the Electronic
Communications and Security Act, 18 U.S.C. § 2709(b).
Where Hepting references these underlying provisions, he
characterizes them as constitutional in contrast to the alleged
unconstitutionality of § 802. The amendment that Hepting
objects to was enacted
[b]ecause the Government has claimed the state
secrets privilege over the question of whether any
particular provider furnished assistance to the Gov-
ernment, [and thus] an electronic communication
service provider who cooperated with the Govern-
ment pursuant to a valid court order or certification
cannot prove it is entitled to immunity under section
HEPTING v. AT&T CORP. 21593
2511(2)(a)(ii) without disclosing the information
deemed privileged by the Executive branch.
S. Rep. 110-209 at 11. In other words, the amendment was
adopted to effectuate a pre-existing immunity for telecommu-
nications companies.
[14] Hepting’s challenge is simply to the extra layer of
secrecy provided by § 802 which precludes him from know-
ing the precise statutory subsection relied on by the Attorney
General in the certification. Hepting does not take aim at the
underlying provisions which, standing alone, allow for the
wiretapping, immunity, and in camera proceedings. Thus,
§ 802 only marginally refines and limits the notice available
to a potential claimant.5
Next, the practical effects of § 802’s additional constraints
on notice are limited. The statute lays out the five grounds for
certification. Hepting has notice that the foundation of the cer-
tification rests on one of those grounds, and may challenge
any or all of them even when the Attorney General does not
publicly disclose the exact ground.
5
For example, certification under § 802(a)(1) means that “any assistance
by that person was provided pursuant to an order of the court established
under section 103(a) [50 U.S.C. § 1803(a)] directing such assistance.” The
cited statute creates the authority for the FISA courts. 50 U.S.C. § 1803(a).
The FISA court orders and proceedings are already secret, id. 1803(c), and
entirely independent of the challenged in camera provisions in § 802.
Thus, certification under § 802(a)(1) would mean that the party being
granted immunity acted pursuant to an already secret FISA court order.
Likewise, certification under § 802(a)(2) invokes either the Wiretap Act,
which authorizes telecommunications companies to provide the govern-
ment with aid in eavesdropping under certain, narrow circumstances, and
provides for secrecy and immunity, 18 U.S.C. § 2511(2)(a)(ii)(B), or the
Electronic Communications and Privacy Act, which requires telecommu-
nications companies to provide information to law enforcement and to
keep secret their assistance. 18 U.S.C. § 2709. Certification under
§ 802(a)(3) invokes provisions of the FISA that already have secrecy and
immunity clauses.
21594 HEPTING v. AT&T CORP.
The grounds of certification do not require complex analy-
sis. The first three subsections of § 802(a) invoke a binary
determination (yes or no) of whether the person provided
assistance under the specific laws listed. § 802(a)(1)-(3).
The fourth subsection, § 802(a)(4), the most lengthy of the
provisions, covers the widely reported TSP program, whose
existence was acknowledged by the President, and, at this
stage, has been much discussed and reported. S. Rep. 110-209
at 1; David Sanger & John O’Neil, White House Begins New
Effort to Defend Surveillance Program, Bush Lets U.S. Spy on
Callers Without Courts, N.Y. TIMES, Jan. 23, 2006; see also
Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190
(9th Cir. 2007). Under subparagraph four, immunity is depen-
dent on assistance under the TSP along with additional
requirements, including that the assistance was “designed to
detect or prevent” a terrorist attack. The activity must have
been documented in writing and “authorized by the President”
or “determined to be lawful.”
Finally, certification under § 802(a)(5) can only mean that
the party being immunized “did not provide the alleged assis-
tance.” This too is binary. If assistance was provided, immu-
nity is available. Absent such assistance, a plaintiff would
have no claim in any event. As the Senate Report describes
it, § 802(a)(5) “provides a procedure . . . to seek dismissal of
a suit when a defendant either provided assistance pursuant to
a lawful statutory requirement, or did not provide assistance.”
S. Rep. 110-209 at 11.
Section 802’s limited effect on Hepting’s ability to chal-
lenge the grounds for certification stands in marked contrast
to the statute considered in Hamdi v. Rumsfeld, 542 U.S. 507
(2004). Hepting cites Hamdi to urge that the secrecy provi-
sions in § 802 deprive him of due process because he has no
“notice of the factual basis” of the government’s claim. 542
U.S. at 533 (plurality opinion); That case involved the power
of the Executive to indefinitely detain a citizen on unspecified
HEPTING v. AT&T CORP. 21595
criminal charges; Hamdi had no notice at all of the evidence
arrayed against him. Id. at 509-15. In this civil case, however,
Hepting is on notice of the limited universe of situations that
could justify certification. He has the opportunity to provide
evidence and arguments as to why certification or immunity
is not justified under each scenario. Indeed, the procedures
under § 802(c) are not fully ex parte—any party may partici-
pate in the briefing or argument challenging the certification
and grant of immunity, “but only to the extent that such par-
ticipation does not require the disclosure of classified infor-
mation to such party.” § 802(d). The government noted at oral
argument that Hepting is “free if [he] want[s] to submit to the
district court public information that [he] believe[s] supports
[his] claim, and [he has] done so—hundreds and hundreds of
pages.” Oral Argument at 52:36-45. These hundreds of pages
of evidence, including books, television interviews, govern-
ment reports and documents from the Director of National
Intelligence, are nicely catalogued in Hepting’s Rule 1006
Summary of Voluminous Evidence.
[15] Finally, the national security considerations present
here successfully outweigh the limited effects of § 802 on the
scope of the notice Hepting receives and his ability to chal-
lenge the Attorney General’s certification. “[D]ue process is
flexible and calls for such procedural protections as the partic-
ular situation demands.” Morrissey v. Brewer, 408 U.S. 471,
481 (1972).
Courts have consistently upheld in camera and ex parte
reviews when national security information is concerned. In
National Council of Resistance of Iran v. Dep’t of State, the
D.C. Circuit explained that the notice “need not disclose the
classified information to be presented in camera and ex parte
to the court under the statute. This is within the privilege and
the prerogative of the Executive, and we do not intend to
compel a breach in the security which that branch is charged
to protect.” 251 F.3d 192 (D.C. Cir. 2001). The court con-
ducted a detailed analysis of the interests at stake under the
21596 HEPTING v. AT&T CORP.
traditional balancing test for procedural due process claims,
Mathews v. Eldridge, 424 U.S. 319, 335 (1976), and defini-
tively upheld the congressionally-approved in camera and ex
parte proceedings. 251 F.3d at 206-08 (considering Secretary
of State’s designation of two foreign entities as foreign terror-
ist organizations under in camera and ex parte provisions of
the Antiterrorism and Effective Death Penalty Act, 8 U.S.C.
§ 1189).
Hepting’s claim mirrors the one made—and rejected—in
People’s Mojahedin Organization of Iran v. Department of
State: that a statute violates the Due Process Clause because
it “permits the Secretary to rely upon secret evidence—the
classified information that respondent refused to disclose and
against which [the petitioner] could therefore not effectively
defend.” 327 F.3d 1238, 1241-42 (D.C. Cir. 2003) (rejecting
a due process challenge to a designation as a terrorist organi-
zation). Similarly, in Holy Land Foundation for Relief &
Development v. Ashcroft, the court held that the petitioner’s
designation as a “Specially Designated Global Terrorist”
using classified information reviewed by the court in camera
and ex parte did not violate due process for lack of meaning-
ful notice. 333 F.3d 156, 164 (D.C. Cir. 2003); see also
Global Relief Found., Inc. v. O’Neill, 315 F.3d 748, 754 (7th
Cir. 2002) (“Administration of the IEEPA is not rendered
unconstitutional because that statute authorizes the use of
classified evidence that may be considered ex parte by the
district court.” (citing 50 U.S.C. § 1702(c)).
To counter this line of cases Hepting relies on American-
Arab Anti-Discrimination Committee v. Reno (“AADC”), in
which we held that the use of undisclosed classified informa-
tion in adjustment-of-immigration-status proceedings violated
due process. 70 F.3d 1045, 1070 (9th Cir. 1995). The circum-
stances in AADC could hardly diverge more. Most signifi-
cantly there was “no statutory or regulatory basis supporting”
in camera process, id. at 1068; under § 802, Congress sanc-
tioned in camera and ex parte procedures. Another significant
HEPTING v. AT&T CORP. 21597
distinction: the government in AADC offered no evidence to
demonstrate the threat to national security posed by the indi-
viduals against whom it sought to use the in camera and ex
parte information. Id. at 1169. Here Congress itself expressed
the seriousness of the national security interests at stake, see
S. Rep. 110-209 at 9, and the Attorney General explicitly
declared “that disclosure of [the] classified certification,
including the basis of [the] certification, for particular pro-
vider defendants, would cause exceptional harm to the
national security of the United States.” Finally, in AADC, the
government “[did] not seek to shield state information from
disclosure in the adjudication of a tort claim against it;
instead, it [sought] to use secret information as a sword
against the aliens.” 70 F.3d at 1070. AADC is thus instructive
because it represents the striking contrast between a court pro-
cess unhinged to specific standards and statutes in the immi-
gration context and § 802’s certification process crafted for
specific national security reasons and subject to judicial
review.
The government’s invocation of national security concerns
does not guarantee it a free pass. When enacting § 802, Con-
gress was mindful to preserve and even expand the essential
role of the courts. The Senate Report explained that:
The procedure in [§ 802] allows a court to review a
certification . . . even when public disclosure of such
facts would harm the national security. Because an
assertion of state secrets over the same facts would
likely prevent all judicial review . . . this provision
serves to expand judicial review to an area that may
have been previously non-justiciable. In addition, the
statute explicitly allows the court to review . . . the
Attorney General’s certification.
S. Rep. 110-209 at 12. The certification is reviewed for “sub-
stantial evidence.” § 802(b)(1); cf. Hamdi, 542 U.S. at 527
(using a more deferential “some evidence” standard). The
21598 HEPTING v. AT&T CORP.
statute envisions a meaningful role for the courts, as exempli-
fied by the careful and detailed work of the district court in
this case.
[16] Accordingly, we conclude that the procedures
afforded under § 802 are sufficient under the Due Process
Clause. Given the circumstances dictated by national security
concerns, the statute provides sufficient notice of a range of
grounds for immunity from suit and provides meaningful judi-
cial review based on substantial evidence. The public evi-
dence is, of course, provided to all parties; the courts may
review any sealed evidence in camera to assure that there is
a legitimate national security interest and to review the certifi-
cation and its accompanying evidence under the substantial
evidence standard.
IV. Issues Specific to Joll, Anderson, Herron, and Lebow
[17] Four appellants, Joll, Anderson, Herron, and Lebow,
filed complaints alleging conduct that began as far back as
February 2, 2001, predating the TSP program. In its dismissal
of their actions, the district court stated that because “section
802’s immunity provision may only be invoked with regard
to suits arising from actions authorized by the president
between September 11, 2001 and January 7, 2007, the dis-
missal is without prejudice.” Al-Haramain, 633 F. Supp. 2d
at 976. Unlike the district court, we conclude that § 802’s
immunity provisions are not temporally limited; only
§ 802(a)(4), which references the TSP, contains a temporal
limitation. The district court did not err by dismissing these
four appellants’ pre-September 11, 2001 claims.
[18] In addition to claims against the private telecommuni-
cations companies, the complaints filed by Anderson and
Lebow also included alleged illegal conduct on the part of the
government. Because § 802 does not apply to claims against
the government, the district court erred in dismissing these
claims. We reverse and remand with respect to Anderson and
HEPTING v. AT&T CORP. 21599
Lebow’s claims against the government for further consider-
ation by the district court.
CONCLUSION
Although Hepting offers a broadside against the constitu-
tionality of § 802, we conclude that the statute is constitu-
tional and does not violate Articles I or III of the Constitution
or the Due Process Clause of the Fifth Amendment. After
rejecting similar constitutional arguments, the district court
dismissed the complaints based on the Attorney General’s
certification under § 802. Hepting did not appeal this underly-
ing basis for dismissal, so we do not pass on it here. The dis-
trict court’s grant of the government’s motion to dismiss is
AFFIRMED as to the challenge of all appellants with respect
to the § 802 claims and REVERSED and REMANDED as to
Anderson and Lebow’s claims against the government.
Each party shall bear its own costs on appeal.