Anna Smith v. Barack Obama , 816 F.3d 1239 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANNA J. SMITH, No. 14-35555
Plaintiff-Appellant,
D.C. No.
v. 2:13-cv-00257-
BLW
BARACK OBAMA, in his official
capacity as President of the United
States of America; JAMES R. ORDER
CLAPPER, in his official capacity as
Director of National Intelligence;
MICHAEL S. ROGERS, in his official
capacity as Director of the National
Security Agency and Chief of the
Central Security Service; ASHTON
CARTER, in his official capacity as
Secretary of Defense; LORETTA E.
LYNCH, Attorney General; JAMES B.
COMEY, in his official capacity as
Director of the Federal Bureau of
Investigation,*
Defendants-Appellees.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
2 SMITH V. OBAMA
Argued December 8, 2014
Submitted March 15, 2016
Seattle, Washington
Filed March 22, 2016
Before: Michael Daly Hawkins, M. Margaret McKeown,
and Richard C. Tallman, Circuit Judges.
SUMMARY*
USA FREEDOM Act
The panel held that Anna Smith’s claims challenging the
ongoing collection of her metadata under section 215 of the
USA PATRIOT Act (expired but revived by the USA
FREEDOM Act of 2015) were moot, and remanded to the
district court for their dismissal; and remanded Smith’s
remaining claims for the district court to determine whether
they are moot, and if not, to resolve the claims in light of an
intervening change in the law.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SMITH V. OBAMA 3
COUNSEL
Peter J. Smith IV (argued) and Lucas T. Malek, Smith &
Malek, PLLC, Coeur d’Alene, Idaho; Cindy Cohn, David
Greene, Hanni Fakhoury and Andrew Crocker, Electronic
Frontier Foundation, San Francisco, California; Jameel Jaffer,
Alex Abdo and Patrick Toomey, American Civil Liberties
Union Foundation, New York, New York; Richard Alan
Eppink, American Civil Liberties Union of Idaho Foundation,
Boise, Idaho, for Plaintiff-Appellant.
H. Thomas Byron III (argued); Joyce R. Branda, Acting
Assistant Attorney General; Benjamin C. Mizer, Principal
Deputy Assistant Attorney General; Wendy J. Olson, United
States Attorney; Douglas N. Letter and Henry C. Whitaker,
Civil Division, United States Department of Justice,
Washington, D.C., for Defendants-Appellees.
Paul M. Smith, Michael T. Borgia, Jenner & Block LLP,
Washington, D.C.; Michael Davidson, Washington, D.C.;
Kate A. Martin, Center for National Security Studies,
Washington, D.C.; Joseph Onek, The Raben Group,
Washington, D.C., for Amicus Curiae Center for National
Security Studies.
Marc Rotenberg, Alan Butler, Julia Horwitz and Jeramie
Scott, Electronic Privacy Information Center, Washington,
D.C., for Amici Curiae Electronic Privacy Information Center
(EPIC) and Thirty-Three Technical Experts and Legal
Scholars.
Catherine R. Gellis, Sausalito, California; Michael H. Page
and Joseph C. Gratz, Durie Tangri LLP, San Francisco,
4 SMITH V. OBAMA
California, for Amicus Curiae National Association of
Criminal Defense Lawyers.
Thomas R. Burke, Davis Wright Tremaine LLP, San
Francisco, California; Edward J. Davis, Linda Steinman and
Lacy H. Koonce, III, Davis Wright Tremaine LLP, New
York, New York, for Amicus Curiae PEN American Center,
Inc.
Bruce Brown, Katie Townsend and Hannah Bloch-Wehba,
Reporters Committee for Freedom of the Press, Arlington,
Virginia; Kevin M. Goldberg, Fletcher, Heald & Hildreth,
PLC, Arlington, Virginia; Rachel Matteo-Boehm, Bryan
Cave LLP, San Francisco, California; David M. Giles, The
E.W. Scripps Company, Cincinatti, Ohio; Peter Scheer, First
Amendment Coalition, San Rafael, California; Lynn
Oberlander, First Look Media, Inc., New York, New York;
Barbara W. Wall, Gannett Co., Inc., McLean, Virginia;
Karole Morgan-Prager and Juan Cornejo, The McClatchy
Company, Sacramento, California; Charles D. Tobin, Holland
& Knight LLP, Washington, D.C.; Mickey H. Osterreicher,
Buffalo, New York; Jennifer A. Borg, North Jersey Media
Group Inc., Woodland Park, New Jersey; Michael Kovaka,
Washington, D.C.; Kathleen A. Kirby, Wiley Rein LLP,
Washington, D.C.; John B. Kennedy, James A. McLaughlin
and Kalea S. Clark, The Washington Post, Washington, D.C.,
for Amici Curiae Reporters Committee for Freedom of the
Press and 17 Media Organizations.
Charles S. Sims, Proskauer Rose LLP, New York, New York,
for Amici Curiae Senator Ron Wyden, Senator Mark Udall
and Senator Martin Heinrich.
SMITH V. OBAMA 5
ORDER
Anna Smith challenges the collection of her metadata
pursuant to § 215 of the USA PATRIOT Act of 2001, Pub. L.
No. 107-56, sec. 215, § 501, 115 Stat. 272, 287-88. That
section expired on June 1, 2015, but was revived by the USA
FREEDOM Act of 2015, Pub. L. No. 114-23, tit. I, 129 Stat.
268, 269–77 (2015) (codified at 50 U.S.C. § 1861). The USA
FREEDOM Act prohibits any further bulk collection of
tangible things pursuant to § 1861 after November 28, 2015.
See id. § 103, 129 Stat. at 272; see also id. § 109(a), 129 Stat.
at 276.
On November 24, 2015, the Foreign Intelligence
Surveillance Court (“FISC”) approved the government’s
request to retain already collected metadata for two limited
purposes. Opinion & Order, In re Application of the FBI for
an Order Requiring the Production of Tangible Things, No.
BR 15-99 at 1–2 (FISC Ct. Nov. 24, 2015). First, for a period
ending on February 29, 2016, the court authorized limited
access to the metadata by technical personnel to verify the
completeness and accuracy of call detail records produced
under targeted production orders issued by the FISC after
November 28, 2015. Id. at 6–7. Second, the court permitted
the government to retain the metadata for litigation purposes
after February 29, 2016, subject to conditions set out in an
earlier order. Id. at 7–8.
On January 8, 2016, the government filed in the FISC a
report expressing its view that, although the USA FREEDOM
Act mooted claims for prospective injunctive relief (i.e.,
requests to halt bulk collection pursuant to § 1861), it did not
moot claims for retrospective relief (i.e., inventory and
destruction of already collected metadata). Report Describing
6 SMITH V. OBAMA
the Government’s Assessment Whether the End of Bulk
Collection Has Mooted Claims of Certain Plaintiffs, In re
Application of the FBI for an Order Requiring the Production
of Tangible Things, No. BR 15-99 at 1, 6–7 (FISC, filed Jan.
8, 2016).
We hold that Smith’s claims related to the ongoing
collection of metadata are moot and vacate and remand for
their dismissal.
As for Smith’s remaining claims, including her request
that the government purge all of her metadata collected
pursuant to § 1861, we remand this case for the district court
to determine whether they are moot and, if they are not, for
the district court to resolve them in light of the intervening
change in law. Each party shall bear its own costs on appeal.
VACATED AND REMANDED.