Schuchardt v. President of the United States

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 15-3491
____________
ELLIOTT J. SCHUCHARDT,
individually and doing business as the Schuchardt Law Firm,
on behalf of himself and all others similarly situated,
Appellant
v.
PRESIDENT OF THE UNITED STATES;
DIRECTOR OF NATIONAL INTELLIGENCE;
DIRECTOR OF THE NATIONAL SECURITY AGENCY
AND CHIEF OF THE CENTRAL SECURITY SERVICE;
DIRECTOR OF THE FEDERAL BUREAU OF
INVESTIGATION
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(W.D. Pa. No. 2-14-cv-00705)
District Judge: Honorable Cathy Bissoon
____________
Argued: May 17, 2016
Before: SMITH, Chief Judge, HARDIMAN, and
NYGAARD, Circuit Judges.
(Filed: October 5, 2016)
Elliot J. Schuchardt [Argued]
309 Braeburn Drive
Winchester, VA 22601
Counsel for Appellant
Andrew G. Crocker, Esq.
Electronic Frontier Foundation
815 Eddy Street
San Francisco, CA 94109
Counsel for Amicus Appellant
Benjamin C. Mizer
David J. Hickton
H. Thomas Byron III
Henry C. Whitaker [Argued]
United States Department of Justice
Appellate Section, Room 7256
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Counsel for Appellee
Honorabel D. Brooks Smith, United States Circuit Judge for the
Third Circuit, assumed Chief Judge status on October 1, 2016
2
____________
OPINION
____________
HARDIMAN, Circuit Judge.
This appeal involves a constitutional challenge to an
electronic surveillance program operated by the National
Security Agency (NSA) under the authority of Section 702 of
the Foreign Intelligence Surveillance Act (FISA). Elliott
Schuchardt appeals an order of the United States District
Court for the Western District of Pennsylvania dismissing his
civil action for lack of jurisdiction. The District Court held
that Schuchardt lacked standing to sue because he failed to
plead facts from which one might reasonably infer that his
own communications had been seized by the federal
government. Because we hold that, at least as a facial matter,
Schuchardt’s second amended complaint plausibly stated an
injury in fact personal to him, we will vacate the District
Court’s order and remand.
I
Schuchardt’s appeal is the latest in a line of cases
raising the question of a plaintiff’s standing to challenge
surveillance authorized by Section 702. Congress amended
FISA in 2008 to “supplement[] pre-existing FISA authority
by creating a new framework under which the Government
may . . . target[] the communications of non-U.S. persons
located abroad.” Clapper v. Amnesty International USA, 133
S. Ct. 1138, 1144 (2013); see also FISA Amendments Act of
2008, Pub. L. No. 110–261, 122 Stat. 2436, 2438, 50 U.S.C.
3
§ 1881a. On the day Section 702 became law, its
constitutionality was challenged by “attorneys and human
rights, labor, legal, and media organizations whose work
allegedly require[d] them to engage in . . . telephone and e-
mail communications” with persons located outside the
United States. See id. at 1145. The Clapper plaintiffs claimed
that Section 702 was facially unconstitutional under the
Fourth Amendment, which prohibits unreasonable searches
and seizures. See id. at 1146.
A
The dispositive question presented to the Supreme
Court in Clapper was whether the plaintiffs had established
an “imminent” injury “fairly traceable” to the government’s
conduct under Section 702. See 133 S. Ct. at 1147. Because
the plaintiffs had brought suit on the day the law was enacted,
there was no evidence that their communications had been
intercepted—there was only a looming “threat of [future]
surveillance.” Id. at 1145–46. Nonetheless, the plaintiffs
claimed they had standing because there was an “objectively
reasonable likelihood” that their communications would be
intercepted based on the nature of their contacts with persons
outside of the country. Id at 1146.
The Supreme Court rejected this argument as
“inconsistent” with longstanding precedent requiring that
“threatened injury must be certainly impending to constitute
injury in fact,” Clapper, 133 S. Ct. at 1147 (emphasis in
original) (quoting Whitmore v. Arkansas, 495 U.S 149, 158
(1990)). And because the plaintiffs could rely only on a
“speculative chain of possibilities” to support their allegations
of future harm from unlawful government surveillance, they
4
failed to demonstrate an injury that was “certainly
impending.” Id. at 1150.
In particular, the Court characterized the Clapper
plaintiffs’ “speculative chain” as entailing five inferential
leaps:
(1) the Government will decide to target the
communications of non-U.S. persons with
whom [the plaintiffs] communicate;
(2) in doing so, the Government will choose to
invoke its authority under [Section 702] rather
than . . . another method of surveillance;
(3) the Article III judges who serve on the
Foreign Intelligence Surveillance Court will
conclude that the Government’s proposed
surveillance procedures . . . satisfy [Section
702’s] many safeguards and are consistent with
the Fourth Amendment;
(4) the Government will succeed in intercepting
the communications of [the plaintiffs’] contacts;
and
(5) [the plaintiffs] will be parties to the
particular communications that the Government
intercepts.
133 S. Ct. at 1148.
On summary judgment, the plaintiffs had failed to “set
forth by affidavit or other evidence specific facts” supporting
these inferences. Id. at 1149 (internal quotation marks
5
omitted). Accordingly, they lacked standing to challenge the
constitutionality of Section 702. Id.
B
Soon after Clapper was decided, former NSA
contractor Edward Snowden leaked a trove of classified
documents to journalists writing for the Washington Post and
Guardian.1 Those documents referenced the existence of an
NSA program engaged in the bulk collection of domestic
telephone metadata, i.e., “details about telephone calls,
including for example, the length of a call, the phone number
from which the call was made, and the phone number called,”
but not the voice content of the call itself. ACLU v. Clapper,
785 F.3d 787, 793 (2d Cir. 2015); see also Smith v. Obama,
816 F.3d 1239, 1241 (9th Cir. 2016); Obama v. Klayman, 800
F.3d 559, 561 (D.C. Cir. 2015). The operational parameters of
the program were summarized in a classified order of the
Foreign Intelligence Surveillance Court (FISC) directed at
Verizon Business Network Services. ACLU, 785 F.3d at 795.
In short, based on Section 215 of the USA PATRIOT Act,
Pub. L. No. 107–56, 115 Stat. 272, 287 (2001) (codified as
amended at 50 U.S.C. § 1861 et seq.), Verizon was producing
to the government, “all call detail records or ‘telephony
metadata’ . . . on all telephone calls made through its systems
1
See, e.g., Ellen Nakashima, Verizon Providing All
Call Records to U.S. Under Court Order, Wash. Post (June 6,
2013), https://perma.cc/LZK7-37CJ; see also Glenn
Greenwald, NSA Collecting Phone Records of Millions of
Verizon Customers Daily, Guardian (June 6, 2013),
https://perma.cc/UR2A-492H.
6
or using its services where one or both ends of the call are
located in the United States.” ACLU, 785 F.3d at 795.
The government’s bulk collection of telephone
metadata precipitated a number of lawsuits. In one case, the
Second Circuit held that the government had exceeded its
statutory authority under Section 215 to obtain “relevant”
information by constructing an “all-encompassing” database
of “every telephone call made or received in the United
States.” ACLU, 785 F.3d at 812–13. Under the statute’s
sunset provision, however, authorization for the bulk
telephone metadata collection program expired on June 1,
2015. See Pub. L. No. 112–14, 125 Stat. 216 (2011)
(authorizing an extension); Smith, 816 F.3d at 1241. And
although the program was subsequently reauthorized by the
USA FREEDOM Act, Pub. L. No. 114–23, 129 Stat. 268
(2015), that act “prohibits any further bulk collection.” Smith,
816 F.3d at 1241. In reliance on that prohibition, the Ninth
Circuit has determined that “claims related to the ongoing
collection of metadata [under Section 215] are [now] moot.”
Id.
Separate and apart from the bulk collection of
telephone metadata under Section 215, the documents leaked
to the Washington Post and Guardian also shed light on a
previously undisclosed electronic surveillance program
operating under Section 702 called PRISM.2 Slides from a
2
See, e.g., Barton Gellman & Laura Poitras, U.S.
British Intelligence Mining Data from Nine U.S. Internet
Companies in Broad Secret Program, Wash. Post (June 7,
2013), https://perma.cc/YJU2-U9TZ; Glenn Greenwald &
Ewan MacAskill, NSA Prism Program Taps in to User Data
7
presentation purportedly authored by the NSA described
PRISM as “collect[ing] directly from the servers” the full
content of user communications exchanged using services
provided by several large U.S. companies—including
Microsoft, Google, Yahoo, Apple, and Facebook. App. 53.
Another slide depicted a timeline showing the inception of
PRISM collection from each company, beginning with
Microsoft in September 2007 and ending with Apple in
October 2012. Yet another slide suggested a slogan for the
NSA’s “New Collection Posture”: “Sniff it All, Know it All,
Collect it All, Process it All, Exploit it All, and Partner it
All.” App. 61.
II
On June 2, 2014, Schuchardt filed a complaint in the
District Court asserting constitutional, statutory, and state law
claims against the President, the Director of National
Intelligence, and the Directors of the NSA and Federal
Bureau of Investigation. He alleged that the Government was
violating the Fourth Amendment by storing his confidential
communications “in a computer database, or through a
government program, which the Defendants call ‘Prism.’”
Civil Complaint ¶ 22, Schuchardt v. Obama, No. 2-14-cv-
00705-CB (W.D. Pa. June 2, 2014), ECF No. 1. He sought to
enjoin “the [Government] from engaging in any further
collection of . . . [his] information.” Id. ¶ 37.
Schuchardt responded to the Government’s successive
motions to dismiss by amending his complaint twice. In
of Apple, Google and Others, Guardian (June 7, 2013),
https://perma.cc/RPA9-RXSY
8
addition to refining and expanding his allegations, Schuchardt
supplemented his averments with exhibits, the contents of
which fall into two general categories. First, he supported his
allegations regarding PRISM with excerpts of the classified
materials that were the focus of the Washington Post and
Guardian reports, as well as several of the reports themselves.
Second, he included affidavits filed in support of the plaintiffs
in Jewel v. NSA (Jewel I), 965 F. Supp. 2d 1090 (N.D. Cal.
2013), a case challenging the NSA’s interception of internet
traffic flowing through a telecommunications facility in San
Francisco pursuant to an Executive Order issued shortly after
September 11, 2001. Id. at 1098. Jewel I was decided on
remand from Jewel v. NSA, 673 F.3d 902 (9th Cir. 2011), in
which the Ninth Circuit held that the plaintiffs had adequately
pleaded Article III standing to sue. See 673 F.3d at 913. The
affidavits in Jewel I were filed by former NSA employees
who asserted that the agency had, since September 11,
developed an expansive view of its own surveillance
authority and the technology to back it up. See, e.g., App. 126
(“The post-September 11 approach was that NSA could
circumvent federal statutes and the Constitution as long as
there was some visceral connection to looking for terrorists. .
. . [The NSA] has, or is in the process of obtaining, the
capability to seize and store most electronic communications
passing through its U.S. intercept centers.”). 3
3
Schuchardt’s second amended complaint also
asserted: a Fourth Amendment claim challenging the bulk
collection of telephone metadata under Section 215, App. 99
(Count II); a Pennsylvania state-law claim, App. 100 (Count
III), and a First Amendment claim, App. 101 (Count IV),
challenging both PRISM and the telephone metadata
9
Based on the record he had compiled, Schuchardt’s
second amended complaint alleged that because the
Government was “intercepting, monitoring and storing the
content of all or substantially all of the e-mail sent by
American citizens,” his own online communications had been
seized in the dragnet. App. 82, 95–99 (emphasis added). In
particular, Schuchardt asserted that he was “a consumer of
various types of electronic communication, storage, and
internet services,” including “the e-mail services provided by
Google and Yahoo; the internet search services of Google; the
cloud storage services provided by Google and Dropbox;
[and] the e-mail and instant message services provided by
Facebook.” App. 95–96. Then, relying on the operational
details of PRISM made public by the Washington Post and
Guardian, he alleged that: (1) the Government “had obtained
direct access to the servers” of the companies providing him
program; and statutory claims under FISA seeking injunctive
relief, App. 103 (Count V), and damages, App. 104 (Count
VI). At oral argument, Schuchardt belatedly conceded that his
claims regarding the bulk collection of telephone metadata
were mooted by the USA FREEDOM Act. See Transcript of
Oral Argument at 5, Schuchardt v. Obama, No. 15-3491 (3d
Cir. May 17, 2016). He also agreed that his claim for
monetary damages under FISA was barred by the doctrine of
sovereign immunity, and that he was no longer pursuing his
claims under the First Amendment. Id. at 10–11. In light of
Schuchardt’s concessions, we do not address these issues, and
focus solely on whether he has standing to litigate his Fourth
Amendment claim for injunctive relief based on the
Government’s alleged bulk collection of online
communications under PRISM, App. 95 (Count I).
10
with these services; (2) the Government was “unlawfully
intercepting, accessing, monitoring and/or storing [his]
private communications . . . made or stored through such
services”; and (3) the Government was “collecting such
information in order to ‘data mine’ the nation’s e-mail
database.” App. 84, 95–97.
In its motion to dismiss Schuchardt’s second amended
complaint, the Government principally took issue with his
allegation that the “NSA collects the online communications .
. . of all Americans, including, therefore, his.” See Brief in
Support of Defendants’ Motion to Dismiss Plaintiff’s Second
Amended Complaint at 2, Schuchardt v. Obama, No. 2-14-
cv-00705-CB (W.D. Pa. Dec. 11, 2014), ECF No. 21
(emphasis added). Specifically, the Government argued that
because Section 702 authorizes the targeted surveillance of
only persons outside the United States, it was implausible that
PRISM—a program operating under the authority of Section
702—was a dragnet capturing all the country’s domestic
online communications. In support of its position, the
Government cited a report on PRISM prepared by the Privacy
and Civil Liberties Oversight Board (PCLOB), 4 an
independent agency tasked with “review[ing] actions the
executive branch takes to protect the Nation from terrorism,
ensuring that the need for such actions is balanced with the
need to protect privacy and civil liberties.” 42 U.S.C.
§ 2000ee(c)(1). Based on its review, the PCLOB determined
4
Privacy & Civil Liberties Oversight Board, Report on
the Surveillance Program Operated Pursuant to Section 702
of the Foreign Intelligence Surveillance Act (July 2, 2014),
available at https://www.pclob.gov/library/702-Report.pdf
[hereinafter PCLOB Report].
11
that “[i]n PRISM collection, the government . . . sends
selectors—such as an email address—to a United States-
based electronic communications service provider,” who is
then by law “compelled to give the communications sent to or
from that selector to the government.” PCLOB Report at 33.
Far from being the dragnet that Schuchardt had alleged,
therefore, “PRISM collection under Section 702 may be
targeted only at non-U.S. persons located abroad who possess
or are likely to receive foreign-intelligence information.”
Brief in Support of Defendants’ Motion to Dismiss at 10,
Schuchardt v. Obama, No. 2-14-cv-00705-CB (W.D. Pa.
Aug. 11, 2014), ECF No. 8. Because none of Schuchardt’s
allegations suggested that he or his associates would be
targeted as such persons, the Government argued that he had
failed to include “well-pleaded allegations and non-
conclusory allegations of fact” necessary to establish his
standing. Brief in Support of Defendants’ Motion to Dismiss
Plaintiff’s Second Amended Complaint at 4, Schuchardt v.
Obama, No. 2-14-cv-00705-CB (W.D. Pa. Dec. 11, 2014),
ECF No. 21.
The District Court granted the Government’s motion to
dismiss Schuchardt’s second amended complaint, but took a
slightly different tack than what the Government had
suggested. After considering four cases examining
constitutional standing to sue in cases challenging national
security surveillance—Clapper, ACLU, Jewel, and
Klayman—the Court deduced a “meaningful distinction” that
explained their divergent outcomes. Schuchardt v. Obama,
2015 WL 5732117, at *6 (W.D. Pa. Sept. 30, 2015). “In
situations where plaintiffs are able to allege with some degree
of particularity that their own communications were
specifically targeted—for example by citing a leaked FISC
12
order or relying on a detailed insider account—courts have
concluded that the particularity requirement has been
satisfied.” Id. “On the other hand, courts have refused to find
standing based on naked averments that an individual’s
communications must have been seized because the
government operates a data collection program and the
individual utilized the service of a large telecommunications
company.” Id.
Applying the pleading standard it had gleaned from
Clapper, ACLU, Jewel, and Klayman, the District Court
began by noting that the facts underpinning Schuchardt’s
allegations were drawn almost entirely from “media reports
and publicly available information.” Id. Accordingly, his
lawsuit fell “squarely within the second category” of cases,
i.e., those brought by plaintiffs who lacked Article III
standing. Id. Furthermore, Schuchardt “had identified no facts
from which the Court reasonably might infer that his own
communications have been targeted, seized, or stored.” Id. As
such, he was “indistinguishable from every other American
subscribing to the services of a major telephone and/or
internet service provider.” Id. His “only discernible
distinction [was] his heightened personal-interest in the
subject,” which was “insufficient to confer standing.” Id.
(citing Schlesinger v. Reservists Comm. to Stop the War, 418
U.S. 208, 220 (1974)).
III
The District Court had jurisdiction over Schuchardt’s
claims under 28 U.S.C. § 1331, as well as the inherent power
to ascertain its own jurisdiction. See Arbaugh v. Y. & H.
Corp., 546 U.S. 500, 514 (2006). We have jurisdiction under
28 U.S.C. § 1291. See also Bender v. Williamsport Area Sch.
13
Dist., 475 U.S. 534, 541–42 (1986). We review de novo the
District Court’s order dismissing Schuchardt’s second
amended complaint. See Fleisher v. Standard Ins. Co., 679
F.3d 116, 120 (3d Cir. 2012).
At the outset, we note that there is an important
distinction between “facial” and “factual” attacks on subject
matter jurisdiction raised in a motion under Rule 12(b)(1) of
the Federal Rules of Civil Procedure. See Mortensen v. First
Fed. Sav. & Loan, 549 F.2d 884, 891 (3d Cir. 1977). In a
facial attack, we review only “the allegations of the complaint
and documents referenced therein and attached thereto, in the
light most favorable to the plaintiff.” Gould Elecs. v. United
States, 220 F.3d 169, 176 (3d Cir. 2000). If, however, the
defendant contests the pleaded jurisdictional facts, “the court
must permit the plaintiff to respond with evidence supporting
jurisdiction.” Id. at 177 (citing Int’l Ass’n of Machinists &
Aerospace Workers v. Nw. Airlines, Inc., 673 F.2d 700, 711–
12 (3d Cir. 1982)). “The court may then determine
jurisdiction by weighing the evidence presented by the
parties,” but “if there is a dispute of a material fact, the court
must conduct a plenary trial on the contested facts prior to
making a jurisdictional determination.” Id.
It is clear from the record in this case that the District
Court viewed the Government’s motion to dismiss as a facial
attack on its jurisdiction. The Court’s analysis focused solely
on Schuchardt’s second amended complaint; it did not
consider any extrinsic facts proffered by the Government,
including, for example, the nature of PRISM collection as
determined by the PCLOB. See Schuchardt, 2015 WL
5732117, at *5–7. Accordingly, our review of the District
14
Court’s order will accept as true all of Schuchardt’s plausible
allegations, and draw all reasonable inferences in his favor.5
IV
We begin our analysis with first principles. As a
plaintiff seeking to invoke federal jurisdiction, Schuchardt
bears the burden of establishing each element of his standing
to sue under Article III. See Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992). “[T]he irreducible constitutional
minimum of standing contains three elements.” Id. at 560.
First, the plaintiff must have suffered an injury
in fact—an invasion of a legally protected
interest which is (a) concrete and particularized,
and (b) actual or imminent, not conjectural or
hypothetical. Second, there must be a causal
connection between the injury and the conduct
complained of—the injury has to be fairly
traceable to the challenged action of the
defendant, and not the result of the independent
action of some third party not before the court.
Third, it must be likely, as opposed to merely
5
Schuchardt has also challenged on appeal the District
Court’s order denying his request for a preliminary
injunction, a decision the Court rendered more than six
months before granting the Government’s motion to dismiss.
Because Schuchardt failed to identify that unrelated order in
his notice of appeal, however, we lack jurisdiction to consider
his arguments. See Sulima v. Tobyhanna Army Depot, 602
F.3d 177, 184 (3d Cir. 2010).
15
speculative, that the injury will be redressed by
a favorable decision.
Id. at 560–61 (internal quotation marks, citations, and
alterations omitted).
Because a motion to dismiss raising a facial attack on
subject matter jurisdiction relies solely on the pleadings, “we
apply the same standard of review we use when assessing a
motion to dismiss for failure to state a claim.” See Finkelman
v. NFL, 810 F.3d 187, 194 (3d Cir. 2016). “Thus, to survive a
motion to dismiss for lack of standing, a plaintiff must allege
facts that affirmatively and plausibly suggest that [he]
has standing to sue.” Id. (internal quotation marks omitted).
That is, the plaintiff must “plausibly allege facts establishing
each constitutional requirement.” Hassan v. City of New York,
804 F.3d 277, 289 (3d Cir. 2015); see also Spokeo, Inc. v.
Robins, 136 S. Ct. 1540, 1547 (2016).
Against this doctrinal backdrop, Schuchardt’s Article
III standing turns on two inquiries. First, were his allegations
sufficiently “particularized” to demonstrate that he suffered a
discrete injury? See Lujan, 504 U.S. at 560. Second, were
those facts pleaded with enough detail to render them
plausible, “well-pleaded” allegations entitled to a
presumption of truth? See Ashcroft v. Iqbal, 556 U.S. 662,
681 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554
(2007). We address each inquiry in turn.
A
A “particularized” Article III injury is one that
“affect[s] the plaintiff in a personal and individual way.” In re
Schering Plough Corp. Intron/Temodar Consumer Class
16
Action, 678 F.3d 235, 245 (3d Cir. 2012) (quoting Lujan, 504
U.S. at 560 n.1). That putative litigants must suffer in some
discrete and personal fashion ensures, first, that “the legal
questions presented . . . will be resolved, not in the rarified
atmosphere of a debating society, but in a concrete factual
context conducive to a realistic appreciation of the
consequences of judicial action,” and, second, that our
“exercise of judicial power” shows “[p]roper regard for the . .
. other two coequal branches of the Federal Government.”
Valley Forge Christian Coll. v. Ams. United for the
Separation of Church & State, Inc., 454 U.S. 464, 471–74
(1982). These two concerns—respect for the judicial role and
separation of powers—are most salient when courts are asked
“to review actions of the political branches in the fields of
intelligence gathering and foreign affairs.” Clapper, 133 S.
Ct. at 1147.
The Supreme Court has identified a subset of cases in
which plaintiffs routinely fail to demonstrate particularized
injury because they present only “generalized grievances,”
i.e., injuries that are “undifferentiated and ‘common to all
members of the public.’” Lujan, 504 U.S. at 573–74 (quoting
United States v. Richardson, 418 U.S. 166, 177 (1974)).
“Whether styled as a constitutional or prudential limit on
standing, the Court has sometimes determined that where
large numbers of Americans suffer alike, the political process,
rather than the judicial process, may provide the more
appropriate remedy.” Fed. Election Comm’n v. Akins, 524
U.S. 11, 23 (1998). Such cases often involve government
action directed at the public at large, or harms that by their
nature touch upon interests that are widely shared. See, e.g.,
Schlesinger, 418 U.S. at 217 (plaintiffs asserting violation of
the Incompatibility Clause by members of Congress also
17
serving in the armed reserves lacked standing because their
only interest was “to have the Judicial Branch compel the
Executive Branch to act in conformity with the [law] . . . an
interest shared by all citizens”); Sierra Club v. Morton, 405
U.S. 727, 734–36 (1972) (association challenging
development of national park lacked standing based on
alleged “special interest” in conservation).
Nevertheless, “[t]he fact that an injury may be suffered
by a large number of people does not of itself make that
injury a nonjusticiable generalized grievance.” Spokeo, 136 S.
Ct. at 1548 n.7. “The victims’ injuries from a mass tort, for
example, are widely shared, to be sure, but each individual
suffers a particularized harm.” Id.; see also Massachusetts v.
EPA, 549 U.S. 497, 526 n.24 (2007) (“[S]tanding is not to be
denied simply because many people suffer the same
injury. . . . To deny standing to persons who are in fact
injured simply because many others are also injured, would
mean that the most injurious and widespread Government
actions could be questioned by nobody.”). And although
particularity and concreteness are distinct elements
constituting injury in fact, see Spokeo, 136 S. Ct. at 1545, the
Supreme Court has also observed that the “judicial language”
accompanying generalized grievances “invariably appears in
cases where the harm is not only widely shared, but also of an
abstract or indefinite nature—for example, harm to the
‘common concern for obedience to law.’” Akins, 524 U.S. at
23 (emphasis added).
We applied these principles in a recent case involving
allegations of government surveillance. In Hassan v. City of
New York, the plaintiffs claimed that the New York City
Police Department (NYPD) had implemented a program “to
monitor the lives of Muslims, their businesses, houses of
18
worship, organizations, and schools.” 804 F.3d at 285. The
program allegedly entailed “widespread” photo and video
surveillance of “organizations and businesses . . . visibly or
openly affiliated with Islam,” and the infiltration of “Muslim-
affiliated” groups with informants and undercover police
officers. Id. at 285–86. The information gathered was
compiled into a series of reports “document[ing] . . .
American Muslim life in painstaking detail.” Id. (internal
quotation marks omitted). The Hassan plaintiffs discovered
the program after some of these reports became “widely
publicized,” and they asserted that the fallout required them
to alter their ordinary day-to-day conduct. See id. at 287–88.
We held that the plaintiffs’ allegations in Hassan were
sufficient to demonstrate particularized injury under Article
III. After determining that they had asserted “an invasion of a
legally protected interest”—“[t]he indignity of being singled
out [by the government] for special burdens on the basis of
one’s religious calling”—we observed that the particularized
nature of an injury does not turn on the number of persons
that may claim it. Id. at 289. “[T]hat hundreds or thousands
(or even millions) of other persons may have suffered the
same injury does not change the individualized nature of the
asserted rights and interests at stake.” Id. at 291 (citing Akins,
524 U.S. at 24). “Harm to all—even in the nuanced world of
standing law—cannot be logically equated with harm to no
one.” Id. And with regard to allegations of widespread
government surveillance, we stated that because the plaintiffs
had “claim[ed] to be the very targets of the allegedly
unconstitutional surveillance, they [were] unquestionably
‘affect[ed] . . . in a personal and individual way.’” Id.
(quoting Lujan, 504 U.S. at 560 n.1).
19
Like the plaintiffs in Hassan, Schuchardt has alleged a
program of government surveillance that, though universal in
scope, is unmistakably personal in the purported harm. His
second amended complaint describes PRISM as a dragnet that
collects “all or substantially all of the e-mail sent by
American citizens by means of several large internet service
providers.” App. 82. The collected information allegedly
encompasses Schuchardt’s personal communications, and
includes not only the kind of intensely private details that one
could reasonably expect to find in the email accounts of most
Americans—“bank account numbers; credit card numbers;
passwords for financial data; [and] health records”—but also
data influenced by Schuchardt’s personal circumstances,
namely “trade secrets” and “communications with clients of
Schuchardt’s law firm, which are privileged and confidential
under applicable law.” App. 96.
The Government strenuously disputes the plausibility
of Schuchardt’s assertion that PRISM collects “all or
substantially all of the e-mail sent by American citizens,” and
we address that dispute in detail below. But putting aside for
the moment the question of whether Schuchardt’s allegations
concerning PRISM are entitled to a presumption of truth, the
consequences that he identifies as flowing from the
Government’s alleged dragnet are undoubtedly personal to
him insofar as he has a constitutional right to maintain the
privacy of his personal communications, online or otherwise.
See Plumhoff v. Rickard, 134 S. Ct. 2012, 2022 (2014)
(“Fourth Amendment rights are personal rights . . . which
may not be vicariously asserted.” (quoting Alderman v.
United States, 394 U.S. 165, 174 (1969)). That interest is
neither indivisibly abstract nor indefinite, see Warshak v.
United States, 631 F.3d 266, 288 (6th Cir. 2010), and the fact
20
that a large percentage of the population may share a similar
interest “does not change [its] individualized nature” because
Schuchardt’s allegations make clear that he is among the
persons that are the “very targets of the allegedly
unconstitutional surveillance.” Hassan, 804 F.3d at 291; cf.
Riley v. California, 134 S. Ct. 2473, 2484–85 (2014)
(extending the warrant requirement to searches of cellular
phones, “which are now such a pervasive and insistent part of
daily life that the proverbial visitor from Mars might conclude
they were an important feature of human anatomy”).
B
Having determined that Schuchardt’s allegations stated
a particularized injury under Article III, we now consider
whether those allegations should be credited as true for the
purpose of resolving the Government’s jurisdictional
objection. As noted previously, the District Court construed
the Government’s motion to dismiss as a facial attack on its
subject matter jurisdiction. As a result, we must accept
Schuchardt’s allegations as true, with the important caveat
that the presumption of truth attaches only to those allegations
for which there is sufficient “factual matter” to render them
“plausible on [their] face.” Iqbal, 556 U.S. at 679. Conclusory
assertions of fact and legal conclusions are not entitled to the
same presumption. See id.; see also Twombly, 550 U.S. at 57;
Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir.
2016) (“Under the pleading regime established by Twombly
and Iqbal, a court reviewing the sufficiency of a complaint
must . . . identify allegations that, ‘because they are no more
21
than conclusions, are not entitled to the assumption of truth.’”
(quoting Iqbal, 556 U.S. at 679)).6
1
We have recognized that “[t]he plausibility
determination is a ‘context-specific task that requires the
reviewing court to draw on its judicial experience and
common sense.’” See, e.g., Connelly, 809 F.3d at 786–87
(quoting Iqbal, 556 U.S. at 675). At the same time, we have
cautioned that the plausibility standard does not impose a
heightened pleading requirement, and that Federal Rule of
Civil Procedure 8(a) continues to require only a “showing”
that the pleader is entitled to relief. See, e.g., Phillips v. Cty.
of Allegheny, 515 F.3d 224, 233–34 (3d Cir. 2008) (“The
[Supreme] Court emphasized . . . that it was neither
demanding a heightened pleading of specifics nor imposing a
probability requirement.”)). Indeed, although Twombly and
Iqbal emphasized the plaintiff’s burden of pleading sufficient
“factual matter,” the Supreme Court also expressly
6
We have instructed courts to follow a three-step
process to determine the sufficiency of a complaint in
accordance with Twombly and Iqbal. “First, [the court] must
take note of the elements the plaintiff must plead to state a
claim. Second, it should identify allegations that, because
they are no more than conclusions, are not entitled to the
assumption of truth. Finally, when there are well-pleaded
factual allegations, the court should assume their veracity and
then determine whether they plausibly give rise to an
entitlement to relief.” Connelly, 809 F.3d at 787 & n.4
(internal citations, quotations marks, and original
modifications omitted).
22
“disavow[ed]” the requirement that a plaintiff plead “specific
facts.” Boykin v. KeyCorp, 521 F.3d 202, 215 (2d Cir. 2008)
(quoting Twombly, 550 U.S. at 569, and Erickson v. Pardus,
551 U.S. 89, 93 (2007)).
Implicit in the notion that a plaintiff need not plead
“specific facts” to survive a motion to dismiss is that courts
cannot inject evidentiary issues into the plausibility
determination.7 See Twombly, 550 U.S. at 556 (“[A] well-
pleaded complaint may proceed even if it strikes a savvy
judge that actual proof of those facts is improbable.”). This
includes the weighing of facts or the requirement that a
plaintiff plead “specific facts” beyond those necessary to state
a valid claim. See id. at 573 n.8 (“[W]hen a complaint
7
The “evidentiary issues” to which we refer are
distinct from the question of what documents may be
considered in resolving a motion to dismiss applying the
standard of review under Rule 12(b)(6), or, as relevant here,
addressing a facial challenge to subject matter jurisdiction
under Rule 12(b)(1). The general rule for determining the
scope of the pleadings in this scenario is that a district court
“may consider only the allegations contained in the
pleading[s] to determine [their] sufficiency,” but is permitted
to consider “document[s] integral to or explicitly relied upon
in the complaint,” and “any undisputedly authentic document
that a defendant attaches . . . if the plaintiff’s claims are based
on the document,” without converting the motion into one for
summary judgment. See In re Asbestos Prods. Liability Litig.
(No. VI), 822 F.3d 125, 133 & n.7 (3d Cir. 2016) (internal
citations and quotation marks omitted). See generally 5B
Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1350 n.1 (3d ed. 2016).
23
adequately states a claim, it may not be dismissed based on a
district court’s assessment that the plaintiff will fail to find
evidentiary support for his allegations or prove his claim to
the satisfaction of the factfinder.”). The same logic precludes
a court from rejecting pleaded facts based on some blanket
exclusion of evidence. See Ricciuti v. New York City Transit
Auth., 941 F.2d 119, 124 (2d Cir. 1991). “A contrary rule
would confuse the principles applicable to a motion to
dismiss with those governing a motion for summary
judgment.” Campanella v. Cty. of Monroe, 853 F. Supp. 2d
364, 378 (W.D.N.Y. 2012); see also Whitney v. Guys, Inc.,
700 F.3d 1118, 1128–29 (8th Cir. 2012).
Accordingly, although it is unclear whether the District
Court applied a heightened pleading standard in this case, to
the extent that its opinion suggests that Schuchardt’s reliance
on “media reports and other publicly-available information”
was impermissible, we disagree.8 See Schuchardt, 2015 WL
8
Despite Clapper’s observation that the standing
inquiry is “especially rigorous” in matters touching on
“intelligence gathering and foreign affairs,” 133 S. Ct. at
1147, to our knowledge no court has imposed a heightened
pleading standard for cases implicating national security. See
Jewel, 673 F.3d at 913 (“Article III imposes no heightened
standing requirement for the often difficult cases that involve
constitutional claims against the executive involving
surveillance.”). In this appeal, we will assume without
deciding that a heightened pleading standard does not apply.
See, e.g., Jones v. Bock, 549 U.S. 199, 212–13 (2007)
(explaining that “courts should generally not depart from the
usual practice under the Federal Rules on the basis of
perceived policy concerns,” including the imposition of a
24
5732117, at *6. Indeed, we held that the plaintiffs in Hassan
had plausibly pleaded both their standing to sue and claims
for relief based on NYPD surveillance reports that the
plaintiffs had discovered only after they had been “widely
publicized.” See 804 F.3d at 287. Similarly, we take the
District Court’s enumeration of the types of evidence giving
rise to the plaintiffs’ standing in Jewel and ACLU—“a leaked
FISC order or a detailed insider account”—as merely a
suggestion of facts that would have strongly supported the
plausibility of Schuchardt’s allegations, rather than a
requirement that he plead those specific facts. See 2015 WL
6732117, at *6. Such limitations on the scope or source of
facts that a plaintiff may plead to reach the threshold of
plausibility run counter to the longstanding principles
animating pretrial dispositions, as set forth in Twombly and
Iqbal, and come close to the weighing of evidence and
credibility determinations that are the exclusive province of
the factfinder. See Iqbal, 556 U.S. at 681 (“It is the
conclusory nature of respondent’s allegations, rather than
their extravagantly fanciful nature, that disentitles them to the
presumption of truth.”); Twombly, 550 U.S. at 556 (“Rule
12(b)(6) does not countenance . . . dismissals based on a
judge’s disbelief of a complaint’s factual allegations.”
(quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)); see
also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986).
The upshot of all this for Schuchardt is that his
reliance on news articles and other disclosures concerning
PRISM weighs neither in his favor nor against him. Instead,
pleading standard more stringent than the “short and plain
statement” of the claim under Rule 8).
25
these public reports (and the leaked classified materials
accompanying them) are simply part and parcel of the
“factual matter” that must be considered in assessing the
plausibility of his allegations. We will therefore examine
those reports in conjunction with the rest of Schuchardt’s
pleadings to ascertain whether he plausibly alleged a
particularized injury under Article III.
2
Based on our review of the pleadings, the plausibility
of Schuchardt’s alleged injury—that the Government has
been “unlawfully intercepting, accessing, monitoring and/or
storing [his] private communications,” App. 95—depends on
the plausibility of his assertion that PRISM functions as an
indiscriminate dragnet which captures “all or substantially all
of the e-mail sent by American citizens.” App. 82. Aside from
this sweeping allegation, Schuchardt has supplied no facts
suggesting how (or why) the Government would have been
interested in his online activity. His burden, therefore, was to
allege enough “factual matter” to make plausible the
Government’s virtual dragnet. Iqbal, 556 U.S. at 679; see also
Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015).
Schuchardt pleaded facts drawn from news articles
published by the Guardian, as well as the leaked and
purportedly classified materials from which those articles
were derived. As we noted in Part I.B, supra, these
documents state that the NSA, through PRISM, has obtained
“direct” access to the technical facilities of several major
internet service providers. App. 53, 84. They indicate specific
dates for when those providers granted the Government
access, App. 60, and that the degree of access those providers
granted enables the Government to query their facilities at
26
will for “real-time interception of an individual’s internet
activity.” App. 66. They also describe the types of activity
that may be accessed, encompassing “both the content and
metadata of . . . private e-mail communications” sent by those
providers on behalf of their subscribers. App. 59, 96. Finally,
they claim that the rate of data “[c]ollection is outpacing [the
Government’s] ability to ingest, process and store [the data]
to the ‘norms’ to which [it has] become accustomed,” App.
64, and that the NSA’s overriding surveillance goal is to
“[c]ollect it [a]ll,” App. 61.
By including these factual averments in his second
amended complaint, Schuchardt outlined a coherent and
plausible case supporting his PRISM-as-dragnet allegations.
First, his alleged facts specify, at least to some degree, the
means through which the NSA captures “all or substantially
all of the e-mail sent by American citizens,” App. 82, namely,
by compelling companies that provide email and other
internet services to cooperate with the NSA in the collection
of their customers’ data. Although the technical details of
how each company’s email service integrates within PRISM’s
infrastructure are not specified, “on a motion to dismiss, we
‘presum[e] that general allegations embrace those specific
facts that are necessary to support the claim.’” Lujan, 504
U.S. at 561 (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S.
781, 889 (1990)). Moreover, according to the NSA itself,
PRISM entails data “collection directly from the servers” of
these companies, and Schuchardt describes events involving
Lavabit, a company that resisted the Government’s demands
to “install a device on its server which would have provided
the [Government] with access to the full content of all e-mail
messages for all of Lavabit’s . . . customers.” See App. 53, 84,
87. Thus, the pleaded facts plausibly allege the technical
27
means through which PRISM purportedly achieves a
nationwide email dragnet. 9
Second, Schuchardt’s allegations are replete with
details confirming PRISM’s operational scope and
capabilities. The exhibits attached to his second amended
complaint include a slide from a purported NSA presentation
identifying company names and the dates they began
cooperating with the agency. Another slide confirms that—
consistent with a dragnet capturing “all or substantially all of
the e-mail sent by American citizens”—the scale of the data
collected by PRISM is so vast that the Government reported
difficulty processing it according “to the ‘norms’ to which [it
has] become accustomed.” App. 64; see also App. 52
9
We do not read the Ninth Circuit’s opinion in Jewel
to suggest a different conclusion. To be sure, the plaintiff in
Jewel was able to allege “with particularity” that her
communications were seized by “focus[ing]” her complaint
on interceptions occurring at a specific technical facility
operated by a single telecommunications provider. See 673
F.3d at 910 (discussing the plaintiff’s allegations concerning
AT&T’s “SG3 Secure Room” and “particular electronic
communications equipment” at the company’s “Folsom
Street” facility in San Francisco). Although the details she
alleged were quite colorful, they differ in degree, not in kind
from Schuchardt’s averments. In both cases, the parties relied
on an insider account of the alleged surveillance program at
issue—Schuchardt on a former NSA contractor, and Jewel on
a former AT&T telecommunications technician. Those
insiders in turn have relied either on documentary evidence
allegedly produced by the Government itself, or their personal
experiences in executing the surveillance program.
28
(characterizing PRISM as the “SIGAD Used Most in NSA
Reporting”);10 App. 61 (indicating the NSA’s “New
Collection Posture” of “Collect[ing] it All”).
Finally, the pleaded facts support Schuchardt’s
allegation that the scope of PRISM’s data collection
encompasses his personal email. The NSA presentation
identifies specific companies participating in the PRISM
program, and indicates that NSA analysts receive the content
of emails collected as part of the program. Schuchardt alleged
that he uses email services provided by two of those
companies—Google and Yahoo—so we need not speculate
about whether Schuchardt’s own communications were
captured because he specified the scope of PRISM’s dragnet
with enough “factual matter” to make additional inferential
leaps unnecessary. See Klayman, 800 F.3d at 559 (opinion of
Brown, J.) (permitting the inference that the bulk telephone
metadata program under Section 215 encompassed the
plaintiff’s communications in light of facts alleging “the
government’s efforts to ‘create a comprehensive metadata
database.’”).
3
The Government raises three principal arguments
challenging the plausibility of Schuchardt’s PRISM
10
SIGAD stands for the term “Signals Intelligence
Activity Designator,” which “is an alphanumeric designator
that identifies a facility used for collecting Signals
Intelligence (SIGINT).” Laura K. Donohue, Section 702 and
the Collection of International Telephone and Internet
Content, 38 Harv. J. L. & Pub. Pol’y 117, 119 n.3 (2015).
29
allegations. First, it argues that Clapper and its application by
the D.C. Circuit in Klayman require us to find his allegations
implausible. We disagree.
Two aspects of Clapper distinguish it from this case.
First, because the Clapper plaintiffs raised a facial
constitutional challenge to Section 702 on the day the statute
was enacted, they pleaded only prospective injury, i.e.,
“potential future surveillance.” See 133 S. Ct. at 1150. And
because that “potential” relied on a “speculative chain of
possibilities,” the Supreme Court concluded that they had
failed to satisfy the imminence and traceability elements of
injury-in-fact under Article III. Here, in contrast,
Schuchardt’s alleged injury has already occurred insofar as he
claims the NSA seized his emails. It is therefore not
surprising that the Government has been unable to formulate
an analogous “speculative chain” that would doom
Schuchardt’s constitutional standing.
Another critical distinction between this case and
Clapper is that the district court entered summary judgment, a
procedural posture that required the plaintiffs to identify a
triable issue of material fact supported by an evidentiary
record. See id. at 1146, 1149. In contrast, Schuchardt sought
to avoid dismissal in a facial jurisdictional challenge raised
under Rule 12(b)(1), which requires him only to state a
plausible claim, a significantly lighter burden. This distinction
in the standard of review is also reflected in cases concerning
national security surveillance from our sister courts. Compare
ACLU, 785 F.3d at 800 (plaintiffs had standing on motion to
dismiss); Jewel, 673 F.3d at 906–07 (same), with Klayman,
800 F.3d at 568 (opinion of Williams, J.) (plaintiffs lacked
standing to pursue preliminary injunction because there was
no “substantial likelihood” that they could establish injury-in-
30
fact, observing that summary judgment imposes a “lighter
burden” than the “substantial likelihood of success” necessary
to obtain a preliminary injunction); ACLU v. NSA, 493 F.3d
644, 650–51, 667–70 (6th Cir. 2007) (plaintiffs failed to
establish injury-in-fact on summary judgment because they
had “no evidence” on various points of causation). Here,
Schuchardt has gone beyond mere allegations to survive a
motion to dismiss by creating a limited evidentiary record to
support his allegations.
The Government’s reliance on Klayman is also
misplaced. There, the D.C. Circuit vacated the district court’s
preliminary injunction, holding that the plaintiffs had failed to
demonstrate a substantial likelihood of success on the merits.
See 800 F.3d at 561. However, the panel split on the issue of
the plaintiffs’ standing, and also disagreed on whether to
remand the case for further proceedings or outright dismissal.
See id. at 564 (opinion of Brown, J.) (plaintiffs had satisfied
“the bare requirements of standing,” remanding for
jurisdictional discovery); id. at 565 (opinion of Williams, J.)
(plaintiffs lacked standing to seek preliminary injunction,
remanding for jurisdictional discovery); id. at 569 (opinion of
Sentelle, J.) (plaintiffs lacked standing vel non, remanding
with order to dismiss). Under these circumstances, it seems
clear to us that Klayman’s persuasive force is minimized by
its splintered reasoning, different procedural posture, and the
fact that the D.C. Circuit addressed itself to a now-defunct
surveillance program authorized by a separate provision of
FISA. Accordingly, neither Clapper nor Klayman supports
the Government in this case.
Second, the Government contends that Schuchardt’s
allegations “say at most that the government may have the
capability to seize and store most electronic
31
communications,” but “[t]hey do not say that the government
is searching or seizing most, let alone all, e-mail.” Gov’t Br.
21. We agree that Schuchardt’s alleged facts—even if
proven—do not conclusively establish that PRISM operates
as a dragnet on the scale he has alleged. The language of the
leaked materials Schuchardt relies on is imprecise. The use of
the term “direct” in the NSA’s presentation could mean, for
example, that the Government has complete discretion to
search all electronic information held by a company
participating in PRISM at will; this would certainly be
consistent with the “real-time” interception capability that the
NSA allegedly possesses, and could qualify as an
unconstitutional “seizure” of all information stored on the
company’s servers. On the other hand, “direct” could mean
that the Government merely has the legal authority to compel
participating companies to turn over “communications that
may be of foreign-intelligence value because they are . . .
associated with the e-mail addresses that are used by
suspected foreign terrorists.” Gov’t Br. 22. In that scenario, it
is implausible that Schuchardt’s communications would be
targeted by PRISM.
At this early stage of litigation, however, Schuchardt is
entitled to any inference in his favor that may be “reasonably”
drawn from his pleaded facts. See, e.g., King Drug Co. of
Florence, Inc. v. SmithKline Beecham Corp., 791 F.3d 388,
398 n.11 (3d Cir. 2015) (citing Iqbal, 556 U.S. at 678–79).
And as we have explained, the inference that PRISM
“collects all or substantially all of the e-mail sent by
American citizens,” App. 82, is one supported by his pleaded
“factual matter.” Accordingly, in this procedural posture, we
cannot accept the Government’s preferred inference.
32
Finally, the Government disputes the notion that
PRISM is a dragnet, i.e., that it is “based on the
indiscriminate collection of information in bulk.” See Gov’t
Br. 22 (quoting PCLOB Report at 111). According to the
Government, “the program consists entirely of targeting
specific persons that may be of foreign-intelligence value
because they are, for example, associated with the e-mail
addresses that are used by suspected foreign terrorists.” Id.
Under this view, to intercept communications using PRISM:
Analysts first identify a non-U.S. person located
outside the United States who is likely to
communicate certain types of foreign
intelligence information, such as an individual
who belongs to a foreign terrorist organization
or facilitates its activities. Analysts also attempt
to identify a means by which this foreign target
communicates, such as an e-mail address, or a
telephone number; any such address, number, or
other identifier is known as a “selector.” PRISM
collection occurs when the government obtains
from telecommunications providers . . .
communications sent to or from specified
selectors.
Gov’t Br. 6–7 (internal citations omitted).
Several commentators 11 and the few courts 12 that have
examined PRISM appear to agree with the Government’s
11
See, e.g., Donohue, supra note 8, at 119 n.2 (“Once
foreign intelligence acquisition has been authorized under
Section 702, the government sends written directives to
electronic communication service providers compelling their
33
assistance in the acquisition of communications.” (quoting
PCLOB Report at 7)); Nathan Alexander Sales,
Domesticating Programmatic Surveillance: Some Thoughts
on the NSA Controversy, 10 I/S: J. L. & Pol’y for Info. Soc’y
523, 526 (2014) (“[In] PRISM . . . the NSA targets specific
non-Americans who are reasonably believed to be located
outside the country, and also engages in bulk collection of
some foreign-to-foreign communications that happen to be
passing through telecommunications infrastructure in the
United States.”). The Washington Post also amended its
initial report on PRISM to suggest that “imprecision on the
part of the NSA” in the wording of its presentation left open
the possibility that PRISM collection still required the agency
to request materials from the participating companies, rather
than directly from the companies’ servers. See Jonathan Hall,
Washington Post Updates, Hedges on Initial PRISM Report,
Forbes (June 7, 2013, 9:08 PM), https://perma.cc/7L6A-
H22D.
12
See, e.g., United States v. Hasbajrami, 2016 WL
1029500, at *6 (E.D.N.Y. Mar. 8, 2016) (“In PRISM
collection, the government identifies the user accounts it
wants to monitor and sends a ‘selector’—a specific
communications facility, such as a target’s email address or
telephone number—to the relevant communications service
provider. A government directive then compels the
communications service provider to give it communications
sent to or from that selector (i.e., the government ‘tasks’ the
selector).” (internal citations omitted)); Wikimedia Found. v.
NSA, 143 F. Supp. 3d 344, 348–49 (D. Md. 2015) (“Under a
surveillance program called ‘PRISM,’ U.S.-based Internet
Service Providers furnish the NSA with electronic
34
view of the program’s “targeted” nature. So too has the
PCLOB, whose report on PRISM the Government has asked
us to consider. See PCLOB Report at 33–34. These
authorities are substantial, and if correct, would tend to
undermine Schuchardt’s ability to show that his own
electronic communications were seized by the PRISM
program.
The problem for the Government at this stage is that
the scope of materials that a court may consider in evaluating
a facial jurisdictional challenge raised in a motion under Rule
12(b)(1) is not unconstrained. As with motions under Rule
12(b)(6), the court is limited to the four corners of the
complaint, “document[s] integral to or explicitly relied upon
in the complaint,” and “any undisputedly authentic document
that a defendant attaches . . . if the plaintiff’s claims are based
on the document.” In re Asbestos Prods. Liability Litig. (No.
VI), 822 F.3d 125, 133 & n.7 (3d Cir. 2016) (quoting In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d
Cir. 1997)). Schuchardt’s pleadings are in no way “based on”
any countervailing authorities that support the Government’s
position, nor are those authorities integral to or explicitly
relied upon by his complaint—accordingly, we must ignore
their persuasive value, whatever it may be, at this stage of the
litigation. See Gould Elecs., 220 F.3d at 176. Likewise,
insofar as the Government’s arguments present new
information disagreeing with the factual premises underlying
Schuchardt’s claims, we cannot consider them in this facial
jurisdictional challenge, the sole purpose of which is to test
the legal sufficiency of the plaintiff’s jurisdictional
communications that contain information specified by the
NSA.”).
35
averments. Instead, disagreements concerning jurisdictional
facts should be presented in a factual challenge, at which time
the court, after allowing the plaintiff “to respond with
evidence supporting jurisdiction,” may fully adjudicate the
parties’ dispute, including the resolution of any questions of
fact. Id. at 177.
V
Our decision today is narrow: we hold only that
Schuchardt’s second amended complaint pleaded his standing
to sue for a violation of his Fourth Amendment right to be
free from unreasonable searches and seizures. This does not
mean that he has standing to sue, as the Government remains
free upon remand to make a factual jurisdictional challenge to
Schuchardt’s pleading. In anticipation of such a challenge, we
provide the following guidance to the District Court on
remand.
Schuchardt has suggested that he is entitled to
jurisdictional discovery. See Transcript of Oral Argument at
40–41, Schuchardt v. Obama, No. 15-3491 (3d Cir. May 17,
2016). We leave that question to the District Court’s
discretion with the caveat that “jurisdictional discovery is not
available merely because the plaintiff requests it.” Lincoln
Benefit Life Ins. Co. v. AEI Life, LLC, 800 F.3d 99, 108 n.38
(3d Cir. 2015). Jurisdictional discovery is not a license for the
parties to engage in a “fishing expedition,” id., and that fact is
particularly true in a case like this one, which involves
potential issues of national security. In this very context, the
Supreme Court has cautioned that jurisdictional discovery—
even if conducted in camera—cannot be used to probe the
internal (and most likely classified) workings of the national
security apparatus of the United States. See Clapper, 131 S.
36
Ct. at 1149 n.4 (“[T]his type of hypothetical disclosure
proceeding would allow a terrorist (or his attorney) to
determine whether he is currently under U.S. surveillance
simply by filing a lawsuit challenging the Government’s
surveillance program.”). For that reason, the District Court
should take care to circumscribe the scope of discovery and
any ex parte and in camera procedures to only the factual
questions necessary to determine its jurisdiction. 13
Finally, nothing in our opinion should be construed to
preclude the Government from raising any applicable
privileges barring discovery—including the state secrets
doctrine—or to suggest how the District Court should rule on
any privilege the Government may choose to assert. See
United States v. Reynolds, 345 U.S. 1, 10 (1953).
13
For example, the linchpin of Schuchardt’s standing
is his allegation that PRISM collects “all or substantially all
of the e-mail sent by American citizens.” The District Court
may wish to consider what discovery is necessary for it to
adjudicate the veracity of that allegation while permitting
Schuchardt an adequate evidentiary response. See also Jewel
v. NSA, 2015 WL 545925, at *4 (N.D. Cal. Feb. 10, 2015)
(holding that plaintiffs had failed to establish their standing to
challenge Upstream, another putative NSA electronic
surveillance program, because “the evidence at summary
judgment [was] insufficient to establish that the Upstream
collection process operates in the manner in which Plaintiffs
allege[d] it does”).
37
* * *
For the stated reasons, we will vacate the District
Court’s order dismissing Schuchardt’s second amended
complaint and remand for proceedings consistent with this
opinion.
38