Jewel v. National Security Agency

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CAROLYN JEWEL; TASH HEPTING; 

GREGORY HICKS; ERIK KNUTZEN;

JOICE WALTON, on behalf of

themselves and all others similarly

situated,

Plaintiffs-Appellants,

v.

NATIONAL SECURITY AGENCY; KEITH

B. ALEXANDER, Director, in his

official and personal capacities;

MICHAEL V. HAYDEN, in his

personal capacity; UNITED

STATES OF AMERICA; GEORGE W.

BUSH, President of the United

States, in his official and personal 

capacities; RICHARD B. CHENEY, in

his personal capacity; DAVID S.

ADDINGTON, in his personal

capacity; DEPARTMENT OF JUSTICE;

ALBERTO R. GONZALES, in his

personal capacity; JOHN D.

ASHCROFT, in his personal

capacity; JOHN M. MCCONNELL,

Director of National Intelligence,

in his official and personal

capacities; JOHN D. NEGROPONTE in

his personal capacity; MICHAEL B.

MUKASEY, Attorney General;

BARACK HUSSEIN OBAMA;



21601

21602 JEWEL v. NATIONAL SECURITY AGENCY

ERIC H. HOLDER JR., Attorney  No. 10-15616

General; DENNIS C. BLAIR, D.C. Nos.

Defendants-Appellees,

 3:08-cv-04373-

VRW

M:06-cv-01791-

 VRW

VIRGINIA SHUBERT; NOHA ARAFA; 

SARAH DRANOFF; HILARY BOTEIN,

individually and on behalf of all

others similarly situated, No. 10-15638

Plaintiffs-Appellants, D.C. Nos.

3:07-cv-00693-

v.

 VRW

M:06-cv-01791-

GEORGE W. BUSH; MICHAEL V.

HAYDEN; KEITH B. ALEXANDER; VRW

ALBERTO R. GONZALES; JOHN OPINION

ASHCROFT; UNITED STATES OF

AMERICA,

Defendants-Appellees.



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

JEWEL v. NATIONAL SECURITY AGENCY 21605

COUNSEL

Cindy Cohn, Lee Tien, Kurt Opsahl, Kevin S. Bankston,

James S. Tyre, ELECTRONIC FRONTIER FOUNDATION,

21606 JEWEL v. NATIONAL SECURITY AGENCY

San Francisco, California, for the plaintiff-appellant; Rachael

E. Meny, Paula L. Blizzard, Michael S. Kwun, Audrey

Walton-Hadlock, KEKER & VAN NEST LLP, for the

plaintiff-appellant [ 10-15616 ].

Matthew D. Brinckerhoff, Ilann Margalit Maazel, Adam R.

Pulver, EMERY CELLI BRINCKERHOFF & ABADY LLP,

New York, New York, for the plaintiff-appellant. [ 10-

15638 ].

H. Thomas Byron, III, DOJ – U.S. Department of Justice,

Washington, District of Columbia, for the defendant-appellee.

[ 10-15616 and 10-15638 ].

OPINION

McKEOWN, Circuit Judge:

This case is one of many arising from claims that the fed-

eral government, with the assistance of major telecommunica-

tions companies, engaged in widespread warrantless

eavesdropping in the United States following the September

11, 2001, attacks. At issue in this appeal is whether Carolyn

Jewel and other residential telephone customers (collectively

“Jewel”) have standing to bring their statutory and constitu-

tional claims against the government for what they describe

as a communications dragnet of ordinary American citizens.

In light of detailed allegations and claims of harm linking

Jewel to the intercepted telephone, internet and electronic

communications, we conclude that Jewel’s claims are not

abstract, generalized grievances and instead meet the constitu-

tional standing requirement of concrete injury. Nor do pru-

dential considerations bar this action. Although there has been

considerable debate and legislative activity surrounding the

surveillance program, the claims do not raise a political ques-

JEWEL v. NATIONAL SECURITY AGENCY 21607

tion nor are they inappropriate for judicial resolution. Finally,

we do not impose, as suggested by the government, a height-

ened standing requirement simply because the case involves

government officials in the national security context. We

reverse the district court’s dismissal on standing grounds and

remand for further proceedings. We leave for the district court

to consider in the first instance the government’s alternative

argument that Jewel’s claims are foreclosed by the state

secrets privilege.

BACKGROUND

I. COMPLAINT

Jewel filed this putative class action “on behalf of [herself]

and a class of similarly situated persons”: “ordinary Ameri-

cans who are current or former subscribers to AT&T’s tele-

phone and/or Internet services.” At this stage, our inquiry

focuses on Jewel and the allegations as they pertain to her.

Stearns v. Ticketmaster Corp., 655 F.3d 1013, 1021 (9th Cir.

2011). Jewel sued federal government agencies and govern-

ment officers in their official and personal capacities. She did

not name any telecommunications companies as defendants.1

Jewel alleged that the “[c]ommunications of Plaintiffs and

class members have been and continue to be illegally acquired

by Defendants using surveillance devices attached to AT&T’s

network.” She claimed that these actions violated the First and

Fourth Amendments, the constitutional doctrine of separation

of powers, and a variety of statutes—the Foreign Intelligence

Surveillance Act (“FISA”), 50 U.S.C. §§ 1801 et seq., the

Electronic Communications Privacy Act (“ECPA”), 18 U.S.C.

§§ 2510 et seq., the Stored Communications Act (“SCA”), 18

U.S.C. §§ 2710 et seq., and the Administrative Procedure Act

(“APA”), 5 U.S.C. §§ 701 et seq. The complaint requested

both equitable and monetary relief.

1

A number of the other multidistrict litigation (“MDL”) suits name one

or more of the telecommunications companies as defendants. See, e.g.,

Hepting v. AT&T, No. 09-16676 (9th Cir. Dec. 29, 2011).

21608 JEWEL v. NATIONAL SECURITY AGENCY

According to the complaint, on October 4, 2001, President

Bush and other government defendants issued a secret presi-

dential order that authorized warrantless surveillance within

the United States. Jewel asserted that she was specifically

affected because AT&T, in collaboration with the National

Security Agency (“NSA”), diverted all of her internet traffic

into “SG3 Secure Rooms” in AT&T facilities across the coun-

try, including AT&T’s Folsom Street facility in San Fran-

cisco, “and information of interest [was] transmitted from the

equipment in the SG3 Secure Rooms to the NSA based on

rules programmed by the NSA.” Jewel’s complaint focused

on AT&T, its San Francisco facility, and the SG3 Secure

Rooms.

Jewel further alleged that the governmental defendants

operated a “dragnet collection” of communications records by

“continuously solicit[ing] and obtain[ing] the disclosure of all

information in AT&T’s major databases of stored telephone

and Internet records.” These records “concern[ ] communica-

tions to which Plaintiffs and class members were a party.” For

example, Jewel claims that,

[u]sing [a] shadow network of surveillance devices,

Defendants have acquired and continue to acquire

the content of a significant portion of phone calls,

emails, instant messages, text messages, web com-

munications and other communications, both inter-

national and domestic, of practically every American

who uses the phone system or the Internet, including

Plaintiffs and class members, in an unprecedented

suspicionless general search through the nation’s

communications network.

The complaint goes on to allege that defendants were directly

involved in the schemes, which were “directly performed,

and/or aided, abetted, counseled, commanded, induced, or

procured, by Defendants.”

JEWEL v. NATIONAL SECURITY AGENCY 21609

II. THE DISTRICT COURT’S DECISION

The government defendants moved to dismiss and alterna-

tively sought summary judgment as to all claims. They argued

that the court lacked jurisdiction over Jewel’s statutory claims

because the government did not waive its sovereign immu-

nity. The government sought summary judgment on the

remaining claims “because information necessary to litigate

plaintiffs’ claims is properly subject to and excluded from use

in the case by the state secrets privilege and related statutory

privileges.” Although not argued by the government or

briefed by the parties, the district court granted the motion to

dismiss because Jewel lacked standing to bring her claims.2

The district court dismissed the claims with prejudice and

without leave to amend.3

2

The district court dismissed Jewel’s action together with a similar

action filed by Virginia Shubert. Shubert’s action was consolidated with

other wiretapping cases in August 2006 in the Northern District of Califor-

nia under the MDL provisions of 28 U.S.C. § 1407. Jewel’s case was orig-

inally filed in the Northern District of California, but was not part of the

MDL consolidation. The procedural histories of the Jewel and Shubert

actions are not identical, but the district court considered the cases

together for purposes of standing.

3

The allegations in the Shubert complaint diverge significantly from

those in the Jewel complaint, primarily because of their lack of specificity.

These deficiencies might well have been ameliorated through an amended

complaint. However, the district court sua sponte dismissed the complaint

on standing grounds, without leave to amend. Although the district court

properly considered standing of its own accord, this dismissal was prob-

lematic “because [plaintiffs] only learned that the district court would not

allow them an opportunity to remedy any perceived defects in the com-

plaint after . . . the district court summarily signed and entered [its order

of dismissal].” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d

1025, 1034 (9th Cir. 2008). The district court erred in denying Shubert

leave to amend. “Dismissal without leave to amend is improper unless it

is clear, upon de novo review, that the complaint could not be saved by

any amendment.” Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc.,

368 F.3d 1053, 1061 (9th Cir. 2004).

21610 JEWEL v. NATIONAL SECURITY AGENCY

The district court carefully reviewed the complicated pro-

cedural history, both of the MDL wiretapping cases generally

and the motions at issue in this case specifically. The district

court held that Jewel failed to make out prima facie allega-

tions necessary to establish that she was an “aggrieved per-

son” under the FISA. The court acknowledged that Jewel’s

complaint included specific allegations that the NSA used

AT&T’s Folsom Street facility, but found that “[the] com-

plaint contains no other allegations specifically linking any of

the plaintiffs to the alleged surveillance activities,” and there-

fore held that Jewel lacked standing. We disagree.

ANALYSIS

The central issue on appeal is whether Jewel has standing

to sue the government defendants, a question of law that we

review de novo. Bernhardt v. Cnty. of Los Angeles, 279 F.3d

862, 867 (9th Cir. 2002). “Because the district court sua

sponte dismissed [the] complaint on its face,” we “review . . .

standing as if raised in a motion to dismiss. When reviewing

motions to dismiss, [the court] must accept all factual allega-

tions of the complaint as true and draw all reasonable infer-

ences in favor of the nonmoving party.” Id. (internal quotation

marks and citation omitted). General factual allegations of

injury resulting from the defendant’s conduct may suffice, as

we “presum[e] that general allegations embrace those specific

facts that are necessary to support the claim.” Lujan v. Nat’l

Wildlife Fed. (“Nat’l Wildlife Fed.”), 497 U.S. 871, 889

(1990). Because this appeal arises from dismissal under Fed-

eral Rule of Civil Procedure 12(b)(6), Jewel’s allegations are

accepted as true.4

4

At the motion to dismiss stage, we do not consider the merits of

Jewel’s claims. For example, the district court’s determination that Jewel

was not an “Aggrieved Person” under the FISA or a qualified plaintiff

under the other statutes is a merits determination, not a threshold standing

question. Statutory “standing, unlike constitutional standing, is not juris-

dictional.” Noel v. Hall, 568 F.3d 743, 748 (9th Cir. 2009). The question

JEWEL v. NATIONAL SECURITY AGENCY 21611

I. PRINCIPLES OF STANDING

[1] Standing doctrine is well established: “Article III . . .

gives the federal courts jurisdiction over only ‘cases and con-

troversies.”’ Whitmore v. Arkansas, 495 U.S. 149, 154-55

(1990). The oft-cited Lujan v. Defenders of Wildlife (“Lujan”)

restates the three requirements that must be met for Article III

standing: (1) an injury in fact that (2) is fairly traceable to the

challenged conduct and (3) has some likelihood of redressa-

bility. 504 U.S. 555, 560-61 (1992). Here, the district court

determined that this action was “in essence [a] citizen sui[t]

seeking to employ judicial remedies to punish and bring to

heel high-level government officials,” and that “neither group

of plaintiffs/purported class representatives has alleged an

injury that is sufficiently particular to those plaintiffs or to a

distinct group.” The district court’s decision was based

entirely on the first prong of Lujan. Although that requirement

is the focus of our analysis, our de novo review also considers

the other two prongs.

[2] “[T]he standing question in [this] case is whether the

constitutional or statutory provision on which the claim rests

properly can be understood as granting persons in the plain-

tiff’s position a right to judicial relief.” Warth v. Seldin, 422

U.S. 490, 500 (1975). The answer here is yes.

whether a plaintiff states a claim for relief typically relates to the merits

of a case, not to the dispute’s justiciability, and conflation of the two con-

cepts often causes confusion. See Bond v. United States, 131 S. Ct. 2355,

2362 (2011); see also Steel Co. v. Citizens for Better Env’t., 523 U.S. 83,

89 (1998) (“It is firmly established in our cases that the absence of a valid

(as opposed to arguable) cause of action does not implicate subject-matter

jurisdiction, i.e., the courts’ statutory or constitutional power to adjudicate

the case.” (emphasis in original)).

21612 JEWEL v. NATIONAL SECURITY AGENCY

II. JEWEL HAS CONSTITUTIONAL STANDING TO SUE

A. JEWEL ALLEGED CONCRETE AND

PARTICULARIZED INJURY

To satisfy the “injury in fact” requirement, Jewel must

assert a grievance that is both “concrete and particularized.”

Lujan, 504 U.S. at 560 (citations omitted). We consider each

of these requirements in turn, and conclude that Jewel has sat-

isfied them both.

[3] As to Jewel’s statutory claims, the Supreme Court

instructs that a concrete “injury required by Art. III may exist

solely by virtue of statutes creating legal rights, the invasion

of which creates standing.” Lujan, 504 U.S. at 578 (internal

quotation marks, citation, and alteration omitted). Jewel

asserts claims under three surveillance statutes—the ECPA,

FISA and SCA—and adds an umbrella claim under the APA.

[4] Both the ECPA and the FISA prohibit electronic inter-

ception of communications absent compliance with statutory

procedures. The SCA likewise prohibits the government from

obtaining certain communication records. Each statute explic-

itly creates a private right of action for claims of illegal sur-

veillance. See 18 U.S.C. § 2520 (the ECPA provides a cause

of action to “any person whose . . . communication is inter-

cepted, disclosed, or intentionally used”); 50 U.S.C. § 1801(k)

(the FISA provides that “[a]n aggrieved person . . . who has

been subjected to an electronic surveillance or about whom

information obtained by electronic surveillance of such per-

son has been disclosed or used in violation of section 1809 of

this title shall have a cause of action against any person who

committed such violation”); 18 U.S.C. § 2707(a) (the SCA

provides that “any provider of electronic communication ser-

vice, subscriber, or other person aggrieved by any violation of

this chapter” may maintain a civil action if the violation was

done knowingly or intentionally).

JEWEL v. NATIONAL SECURITY AGENCY 21613

[5] In a similar vein, with respect to her constitutional

claim, Jewel alleges a concrete claim of invasion of a personal

constitutional right—the First Amendment right of association

and the Fourth Amendment right to be free from unreasonable

searches and seizures. Just last term, the Supreme Court con-

firmed an individual’s right to challenge the legality of Exec-

utive Branch conduct on separation-of-powers grounds,

Jewel’s third constitutional claim: “[I]ndividuals sustain dis-

crete, justiciable injury from actions that transgress

separation-of-powers limitations. Separation-of-powers prin-

ciples are intended, in part, to protect each branch of govern-

ment from incursion by the others. Yet the dynamic between

and among the branches is not the only object of the Constitu-

tion’s concern. The structural principles secured by the sepa-

ration of powers protect the individual as well.” Bond, 131 S.

Ct. at 2365.

[6] Satisfied that Jewel sufficiently alleged concrete injury,

we turn now to the more difficult question, whether the rights

asserted are sufficiently particularized. The breadth of Jewel’s

allegations calls into question whether she has a particularized

grievance or instead one that “is held in common by all mem-

bers of the public,” Schlesinger v. Reservists Comm. to Stop

the War, 418 U.S. 208, 220 (1974), and thus necessarily an

abstract interest shared by all citizens. The critical question is

whether she “has alleged such a personal stake in the outcome

of the controversy as to warrant . . . invocation of federal-

court jurisdiction.” Summers v. Earth Island Inst., 555 U.S.

488, 493 (2009) (internal quotation marks omitted).

[7] The Supreme Court observed in Federal Election Com-

mission v. Akins that, “[w]hether styled as a constitutional or

prudential limit on standing, the Court has sometimes deter-

mined that where large numbers of Americans suffer alike,

the political process, rather than the judicial process, may pro-

vide the more appropriate remedy for a widely shared griev-

ance.” 524 U.S. 11, 23 (1998). But the fact that a harm is

widely shared does not necessarily render it a generalized

21614 JEWEL v. NATIONAL SECURITY AGENCY

grievance. In Akins, the Court gave context to the notion of

a generalized grievance, explaining that petitioners lack stand-

ing “in cases where the harm at issue is not only widely

shared, but is also of an abstract and indefinite nature—for

example, harm to the ‘common concern for obedience of

law.’ ” 524 U.S. at 23 (quoting L. Singer & Sons v. Union

Pac. R.R. Co., 311 U.S. 295, 303 (1940)); see also Lujan, 504

U.S. at 573-74 (“We have consistently held that a plaintiff

raising only a generally available grievance about government

—claiming only harm to his and every citizen’s interest in

proper application of the Constitution and laws . . . does not

state an Article III case or controversy.”). The Court in Akins

continued “[o]ften the fact that an interest is abstract and the

fact that it is widely shared go hand in hand. But their associa-

tion is not invariable, and where a harm is concrete, though

widely shared, the Court has found ‘injury in fact.”’ 524 U.S.

at 24. As examples of widely shared but concrete injuries the

Court listed “a widespread mass tort” or “where large num-

bers of voters suffer interference with voting rights conferred

by law.” Id. Indeed, “it does not matter how many persons

have been injured by the challenged action so long as ‘the

party bringing suit . . . show[s] that the action injures him in

a concrete and personal way.’ ” Massachusetts v. EPA, 549

U.S. 497, 517 (2007) (quoting Lujan, 504 U.S. at 581) (Ken-

nedy, J., concurring in part and concurring in the judgment).

We recently considered the prerequisites for a “sufficiently

concrete and specific injury” in Newdow v. Lefevre, an Estab-

lishment Clause challenge to the inscription “In God We

Trust” on coins and currency. 598 F.3d 638 (9th Cir. 2010),

cert. denied 131 S. Ct. 1612 (2011). We held that Newdow

met the standing requirement. The fact that his “encounters

with the motto are common to all Americans does not defeat

his standing, because Newdow has alleged a concrete, particu-

larized, and personal injury resulting from his frequent,

unwelcome contact with the motto.” Id. at 642. This case

illustrates that even though the experience at the root of New-

dow’s complaint was shared by virtually every American, this

JEWEL v. NATIONAL SECURITY AGENCY 21615

widespread impact was not dispositive of standing because his

grievance was nonetheless concrete and particular.

[8] Following the rationale of Akins and Newdow, we con-

clude that Jewel alleged a sufficiently concrete and particular-

ized injury. Jewel’s allegations are highly specific and lay out

concrete harms arising from the warrantless searches. Jewel

described these actions as a “dragnet” and alleged that “[t]his

network of Surveillance Configurations”—“the technical

means used to receive the diverted communications”—

“indiscriminately acquired domestic communications as well

as international and foreign communications.” Specifically,

Jewel alleged that “[t]hrough this network of Surveillance

Configurations and/or other means, Defendants have acquired

and continue to acquire the contents of domestic and interna-

tional wire and/or electronic communications sent and/or

received by Plaintiffs and class members.” In addition to cap-

turing internet traffic, “Defendants and AT&T acquire all or

most long-distance domestic and international phone calls to

or from AT&T long distance customers, including both the

content of those calls and dialing, routing, addressing and/or

signaling information pertaining to those calls.”

[9] The complaint also described in detail the particular

electronic communications equipment used (“4ESS switch”

and “WorldNet Internet Room”) at the particular AT&T facil-

ity (Folsom Street, San Francisco) where Jewel’s personal and

private communications were allegedly intercepted in “a

secret room known as the ‘SG3 Secure Room.’ ” Accepting

Jewel’s allegations as true, she has pled more than the mini-

mum “general factual allegations” required to survive dis-

missal. Bernhardt, 279 F.3d at 867. The court need “not pass

upon abstract, intellectual problems, but [can] adjudicate con-

crete, living contests between adversaries.” Akins, 524 U.S. at

20 (internal quotation marks and alteration omitted). Akins

establishes that, where the injury is sufficiently concrete and

specific, “that it is widely shared does not deprive Congress

21616 JEWEL v. NATIONAL SECURITY AGENCY

of constitutional power to authorize its vindication in the fed-

eral courts.” 524 U.S. at 25.

Significantly, Jewel alleged with particularity that her com-

munications were part of the dragnet. The complaint focused

on AT&T and was not a scattershot incorporation of all major

telecommunications companies or a blanket policy challenge.

Jewel’s complaint also honed in on AT&T’s Folsom Street

facility, through which all of Jewel’s communications alleg-

edly passed and were captured.

Our decision is consistent with the approach in other cir-

cuits. The Second Circuit recently determined, after conduct-

ing a detailed analysis, that plaintiffs in a similar suit had

standing to challenge provisions of the FISA. Amnesty Int’l

United States v. Clapper, 638 F.3d 118, 122 (2d Cir. 2011).

Amnesty International involved a facial challenge to § 702 of

the FISA in which the plaintiffs’ alleged injuries were “fear

that the government will intercept their sensitive international

communications” and the costs associated with efforts to

avoid such anticipated injuries. Id. at 133. Jewel has much

stronger allegations of concrete and particularized injury than

did the plaintiffs in Amnesty International. Whereas they

anticipated or projected future government conduct, Jewel’s

complaint alleges past incidents of actual government inter-

ception of her electronic communications, a claim we accept

as true.5

5

The government’s position in Amnesty International appears to be in

tension with its argument here. There, the government “argue[d] that the

plaintiffs can obtain standing only by showing either that they have been

monitored or that it is ‘effectively certain’ that they will be monitored.”

Id. at 135. Shifting its position, the government argues here that Jewel

lacks standing even if her communications were in fact captured and mon-

itored. The government does not deny Jewel’s allegations but sidesteps the

issue, asserting that “plaintiffs offer nothing other than bare speculation

for their assertion that any surveillance is ongoing outside of [FISA Court]

authorizations.” That approach conflates the ultimate merits question—

whether the surveillance exceeded statutory or constitutional authority—

with the threshold standing determination.

JEWEL v. NATIONAL SECURITY AGENCY 21617

[10] Jewel’s case stands in contrast to two other cases,

where our sister circuits held that plaintiffs lacked standing.

In United Presbyterian Church v. Reagan, the D.C. Circuit

confronted a “generalized challenge” to “the constitutionality

of the entire national intelligence-gathering system,” not the

alleged actual impact of a specific program or protocol on the

plaintiff. 738 F.2d 1375, 1381 (D.C. Cir. 1984) (internal quo-

tation marks omitted). Jewel’s complaint does not suffer from

vague “chilling effect” allegations like those in United Pres-

byterian nor does it fall in the category of speculative harm.

Id. at 1380. While specificity does not necessarily trump spec-

ulation, the detail and specificity here are sufficient to support

a particularized claim.

Similarly distinguishable is the Sixth Circuit’s denial of

standing to challenge the entire NSA wiretapping program.

ACLU v. NSA, 493 F.3d 644, 648 (6th Cir. 2007). Although

the court reversed on standing grounds, it considered a fully-

developed summary judgment record. Arguably that case is of

“no relevance here,” because our case “involve[s] not a Rule

56 motion for summary judgment but a Rule 12(b) motion to

dismiss on the pleadings.” Nat’l Wildlife Fed., 497 U.S. at

889. The ACLU plaintiffs—attorneys and other professionals

whose communications with overseas individuals were alleg-

edly impacted—were unable to “produce any evidence that

any of their own communications have ever been intercept-

ed.” ACLU, 493 F.3d at 653. The court thus faulted them for

“assert[ing] a mere belief” that the NSA eavesdropped on

their communications without warrants. Id. This failure of

proof doomed standing. Ultimately Jewel may face similar

procedural, evidentiary and substantive barriers as the plain-

tiffs in ACLU, but, at this initial pleading stage, the allega-

tions are deemed true and are presumed to “embrace the

‘specific facts’ needed to sustain the complaint.” Lujan, 497

U.S. at 888; see also Bennett v. Spear, 520 U.S. 154, 168

(1997) (noting in its discussion of standing, “at the pleading

stage, general factual allegations of injury resulting from the

defendant’s conduct may suffice, for on a motion to dismiss

21618 JEWEL v. NATIONAL SECURITY AGENCY

we presume that general allegations embrace those specific

facts that are necessary to support the claim.”).

B. JEWEL’S ALLEGATIONS MEET THE SECOND AND THIRD

PRONGS OF THE TEST FOR CONSTITUTIONAL STANDING

[11] The harms Jewel alleges are “fairly traceable to the

challenged action” of the NSA. Simon v. E. Ky. Welfare

Rights Org., 426 U.S. 26, 41-42 (1976). It is no secret that in

the weeks after the attacks of September 11, 2001, President

Bush authorized the NSA to engage in warrantless wiretap-

ping. The President admitted as much: “I authorized a terrorist

surveillance program to detect and intercept al Qaeda commu-

nications involving someone here in the United States.” Presi-

dent 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. Thus, the harms Jewel alleges—invasion of privacy

and violation of statutory protections—can be directly linked

to this acknowledged surveillance program.

[12] Jewel easily meets the third prong of the standing

requirement. There is no real question about redressability.

Jewel seeks an injunction and damages, either of which is an

available remedy should Jewel prevail on the merits.

C. JEWEL SATISFIES THE PRUDENTIAL REQUIREMENTS FOR

STANDING

The heart of the district court’s opinion and the core of the

government’s argument on appeal focuses on prudential

standing concerns, namely the broad nature of the claims and

the role of the courts in addressing intelligence and surveil-

lance issues. It is true, according to the Court in Akins, that

the concern about generalized grievances can be characterized

as both a constitutional and prudential concern, as there is

overlap in the analysis. 524 U.S. at 23. We are satisfied that

JEWEL v. NATIONAL SECURITY AGENCY 21619

our analysis of this issue as a constitutional standing require-

ment applies with equal force in the prudential arena.

[13] After labeling Jewel’s claim as an effort “to redress

alleged malfeasance by the executive branch,” the district

court stated that “the political process, rather than the judicial

process,” may be the appropriate avenue. There is little doubt

that Jewel challenges conduct that strikes at the heart of a

major public controversy involving national security and sur-

veillance. And we understand the government’s concern that

national security issues require sensitivity. That being said,

although the claims arise from political conduct and in a con-

text that has been highly politicized, they present straightfor-

ward claims of statutory and constitutional rights, not political

questions. See Japan Whaling Ass’n v. Am. Cetacean Soc.,

478 U.S. 221, 230 (1986).

The district court’s suggestion that Congress rather than the

courts is the preferred forum ignores two important points: To

begin, Congress already addressed the issue and spelled out

a private right of action in the FISA, ECPA and SCA. And,

in 2008, “[p]artially in response to the[ ] [wiretapping] suits,

Congress held hearings and ultimately passed legislation that

provided retroactive immunity to the companies . . . but

expressly left intact potential claims against the government.”

Hepting, slip op. at 21573.

[14] Focusing on the federal statutory causes of action, the

prudential analysis is simplified: “prudential standing is satis-

fied when the injury asserted by a plaintiff arguably falls

within the zone of interests to be protected or regulated by the

statute.” Akins, 524 U.S. at 20 (internal citations, quotation

marks and alterations omitted). In the surveillance statutes, by

granting a judicial avenue of relief, Congress specifically

envisioned plaintiffs challenging government surveillance

under this statutory constellation. Jewel’s statutory claims

undoubtedly allege harms “within the zone of interests to be

21620 JEWEL v. NATIONAL SECURITY AGENCY

protected or regulated by the statute[s],” alleviating any pru-

dential standing concerns. Id.

[15] The district court effectively imposed a heightened

standard for consideration of Jewel’s constitutional claims.

See Jewel v. NSA, 2010 U.S. Dist. LEXIS 5110 at *24-25.

According to the district court, the reluctance to adjudicate

constitutional questions is heightened “when, as here, the con-

stitutional issues at stake in the litigation seek judicial

involvement in the affairs of the executive branch and

national security concerns appear to undergird the challenged

actions.” Jewel v. NSA, 2010 U.S. Dist. LEXIS 5110 at *25.

The court went on to hold that “[i]n such cases, only plaintiffs

with strong and persuasive claims to Article III standing may

proceed.” Id. (emphasis added). This determination was in

error. The district court quoted Schlesinger for the proposition

that “when a Court is asked to undertake constitutional adju-

dication, the most important and delicate of its responsibili-

ties, the requirement of concrete injury further serves the

function of insuring that such adjudication does not take place

unnecessarily.” 418 U.S. at 221. It bears emphasis that the

Supreme Court offered that observation in rejecting “citizen

standing,” a significantly different scenario than here. Id. at

216-21. Plaintiffs in Schlesinger, who challenged congressio-

nal military reserve membership, claimed an interest in “com-

pel[ling] the Executive Branch to act in conformity with the

Incompatability Clause, an interest shared by all citizens.”6 Id.

at 217 (emphasis added).

[16] In the sentence that follows the passage quoted by the

district court, the Supreme Court explained that “concrete

injury removes from the realm of speculation whether there is

a real need to exercise power of judicial review in order to

6

The Incompatability Clause provides that “[n]o Senator or Representa-

tive shall, during the Time for which he was elected, be appointed to any

civil Office under the Authority of the United States . . . .” U.S. Const. art.

I, § 6, cl. 2.

JEWEL v. NATIONAL SECURITY AGENCY 21621

protect the interests of the complaining party.” 418 U.S. at

221. In short, Schlesinger does not stand for the proposition

that there is a stronger, more “persuasive” standing for consti-

tutional questions in national security cases. It represents,

instead, an articulation of the basic requirement of concrete

injury and the rule against generalized grievances. Article III

imposes no heightened standing requirement for the often dif-

ficult cases that involve constitutional claims against the exec-

utive involving surveillance. See Amnesty Int’l, 638 F.3d at

149 (“We do not see any reason why the law of standing

should be stricter or different in the surveillance context.”).

To be sure, prudential concerns may weigh against standing

in certain cases affecting national security interests, but the

national security context does not, in itself, erect a new or

separate prudential bar to standing.

CONCLUSION

We REVERSE the district court’s dismissal of Jewel’s

complaint on the ground that she lacked standing. We

REMAND with instructions to consider, among other claims

and defenses, whether the government’s assertion that the

state secrets privilege bars this litigation. We REVERSE the

district court’s dismissal of Shubert’s complaint with preju-

dice and without leave to amend and REMAND with instruc-

tions to grant Shubert leave to amend her complaint.