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Valdez v. National Security Agency

United States District Court, D. Utah, Central Division

January 10, 2017

MARY JOSEPHINE (JOSIE) VALDEZ, et al., Plaintiffs,

          Dustin B. Pead Magistrate Judge


          ROBERT J. SHELBY United States District Judge

         Plaintiffs are six individuals who lived or worked in Salt Lake City during the 2002 Salt Lake Winter Olympic Games. They contend Defendant National Security Agency, acting at the direction of former President George W. Bush and former Vice President Dick Cheney, illegally engaged in a sweeping warrantless surveillance program during those Games.[1] As part of that program, Plaintiffs allege the NSA unlawfully intercepted, gathered, and monitored all electronic communications in and around Salt Lake City and all Olympic venues. Because Plaintiffs utilized email, text message, and telephone communications in these areas during the surveillance program, they contend their communications and data were necessarily intercepted.[2]Plaintiffs allege the NSA continues to store all of the electronic data it collected.

         The NSA now moves[3] to dismiss Plaintiffs' Amended Complaint, [4] arguing Plaintiffs have not pled facts sufficient to establish standing to proceed with their claims. More specifically, the NSA submits Plaintiffs have not alleged facts plausibly showing they have suffered an injury redressable through the relief sought in this lawsuit. While not stated in so many words, the NSA's central argument is that the Plaintiffs' allegations are fanciful and not worthy of belief.

         The NSA's Motion turns on a disagreement between the parties about the legal standard trial courts must employ when reviewing allegations in pleadings at the motion to dismiss stage. Motions to dismiss like the one here presented require trial courts to evaluate whether a party asserting a claim has adequately pled facts plausibly suggesting an entitlement to relief. Courts perform this analysis in two steps. First, courts must review the complaint and identify any allegations not entitled to the general presumption of truth-such as legal conclusions or bare assertions of the elements of a claim. Second, courts consider whether the remaining allegations, accepted as true at this stage, are sufficient to plausibly support the claims asserted.

         The parties here disagree about what kinds of allegations in pleadings trial courts must assume to be true when undertaking the first step in this analysis. Plaintiffs argue the court may not pass on the plausibility of factual allegations, but must accept those allegations as true. The NSA argues the court cannot assume the truth of factual allegations that appear implausible. The NSA contends that the allegations in the Amended Complaint supporting Plaintiffs' Article III standing are bare assertions, lack factual support, and are implausible. The NSA argues that, as such, the court may not accept them as true, and that without these allegations Plaintiffs' Amended Complaint fails to sufficiently plead standing.

         But it is generally not the role of trial courts at the motion to dismiss stage to pass on the plausibility of otherwise well-pled factual allegations in pleadings. Trial judges ordinarily may not independently perform some undefined truth-testing function-in reliance on unstated assumptions, beliefs, and understandings unique to each judge-to determine what claims may proceed to discovery. While judges are trained to carefully assess the plausibility of legal claims in view of the facts alleged, they are not well-positioned to evaluate only on the basis of pleadings the likelihood that those facts can ultimately be proven true.

         The instant case illustrates this point. The court is simply in no position to evaluate at this stage of the proceeding whether the NSA engaged in the massive warrantless surveillance program Plaintiffs allege, whether any such program was even technologically feasible at the time, or whether any of the named Defendants played a role in such a program. If the NSA engaged in the conduct alleged, it is presently unknown whether the Plaintiffs' communications were intercepted or whether the NSA still possesses any of Plaintiffs' data. But these are the allegations pled in Plaintiffs' Amended Complaint. They can be tested in time, on the basis of a fully-developed record, after an opportunity for both sides to conduct discovery. At that point, any claims lacking evidentiary support can be put to rest.

         Because the Amended Complaint includes adequate and sufficiently well-pled factual allegations to plausibly establish that Plaintiffs have suffered redressable injury, the court DENIES NSA's Motion to Dismiss.[5]


         Plaintiffs allege in their Amended Complaint[6] that the NSA and other Defendants violated their constitutional and statutory rights by monitoring their communications and gathering data during the 2002 Winter Olympic Games, and by continuing to store the data. Plaintiffs seek both declaratory and injunctive relief for the alleged violations.

         First, Plaintiffs ask the court to declare that the NSA violated their rights under the Fourth Amendment[7] and the Foreign Intelligence Surveillance Act (FISA).[8] Second, under the First and Fourth Amendments, the Stored Communication Act, the Privacy Act, the Administrative Procedure Act, and FISA, [9] Plaintiffs ask the court to enjoin the NSA “from continuing to store the communications of Plaintiffs and from making such communications accessible in the future.”[10] Finally, Plaintiffs ask the court to “require Defendant NSA to disclose what has been stored, subject to future access, and provide assurances that the above-described communications by Plaintiffs have been deleted and permanently removed from any records and data stored by Defendant NSA, rendering them inaccessible for future access.”[11]

         In response to the NSA's Motion to Dismiss, [12] Plaintiffs argue they have sufficiently pled a redressable injury to support their claims for relief. First, Plaintiffs claim they adequately allege they were injured because the NSA unlawfully collected their personal communications during the 2002 Winter Olympics without a warrant. Plaintiffs do not allege that their specific communications were targeted by the NSA, only that they were swept up in the NSA's extremely broad surveillance program. Second, Plaintiffs argue they sufficiently allege their injury is redressable because the NSA continues to store their information.

         The parties' dispute centers on whether these allegations are entitled to a presumption of truth at this stage of the case. Therefore, the court recites the relevant allegations directly from the Amended Complaint.

         Allegations in the Amended Complaint Relevant to Injury:

3. Pursuant to authority provided by Bush in October 2001 and later orders, the NSA and employees and agents of the NSA illegally monitored the international telephone calls and international e-mail messages of people inside the United States without warrants. Since October 2001, Bush had authorized and ordered the NSA, in a program known as “the President's Surveillance Program, ” (and sometimes simply as “the President's Program”), pursuant to which information gathered during the course of illegal surveillance was maintained in a “security compartment” codenamed “STELLARWIND”, to engage in widespread, warrantless, unconstitutional, felonious surveillance of email, text, internet, and telephone communications in the United States.
4. Then-Vice-President Cheney and his legal counsel Addington were instrumental in authorizing and encouraging the illegal and unconstitutional surveillance, with Addington drafting a secret written authorization for NSA Director Hayden to keep in his safe.
5. Later, that surveillance evolved, in part, into blanket, indiscriminate, warrantless, unconstitutional and otherwise illegal surveillance of the contents of every email and text message, and the metadata of every telephone call (i.e., the times, length, and numbers involved in every telephone call), to and from every person engaging in those types of communications in Salt Lake City, Utah, and in the vicinity of every other Olympic venue, during the 2002 Salt Lake Winter Olympic Games.
. . .
9. As part of the President's Surveillance Program, as it evolved to even broader criminality, the NSA . . . planned and implemented a mass warrantless surveillance program . . . in which blanket surveillance was attempted and achieved during a period preceding the commencement of the 2002 Salt Lake Olympic Games and throughout the period of the games, from at least February 8, 2002 (Opening Ceremony) through at least February 24 (Closing Ceremony), over everyone utilizing email, text message, and telephone communications within designated geographical areas, including Salt Lake City, Utah, and the areas including and in the vicinity of all Olympic venues.
10. That unprecedented surveillance, some of which was first disclosed in a brief description in The Wall Street Journal on August 20, 2013 (entitled “New Details Show Broader NSA Surveillance Reach, ” by Siobhan Gorman and Jennifer Valentino-Devries), included the unconstitutional and otherwise illegal interception and key-word spotting analysis of the contents of every text message and email sent and received and information reflecting the time and length of, the telephone numbers involved in, every telephone conversation involving any person within the areas subjected to blanket surveillance.
. . .
23. During the 2002 Salt Lake Winter Olympic Games, Plaintiffs utilized the services of one or more telecommunications service providers through which the NSA and Does 1-50, engaged in illegal and unconstitutional surveillance of information that included length, times, and telephone numbers involved in each telephonic communication. Plaintiffs also subscribed to telecommunication services that allowed the sending of emails and, on a regular basis, sent and received emails while they were in Salt Lake City and near other Olympic venues, all of which were subjected by the NSA and FBI, and some of Does 1-50, to . . . surveillance, interception, and key-word spotting analysis.
. . .
26. Defendant Hayden was Director of the NSA from 1999 to 2005. Hayden requested and urged that the NSA be permitted to engage in widespread warrantless surveillance of electronic communications, including text messages, emails, and telephone communications. Hayden sought and received written authorization to engage in the clearly illegal and unconstitutional surveillance and caused the NSA to engage in such surveillance, including the massive, indiscriminate, warrantless surveillance of the contents of text messages, emails, and telephone calls originating or received in Salt Lake City and in the vicinity of other Olympic venues during the 2002 Salt Lake Winter Olympic Games.[13]

         Allegations in the Amended Complaint Relevant to Redressability:

12. Consistent with the practice and philosophy of the NSA to horde [sic] everything obtained through surveillance, whether legal or illegal, the communications illegally and unconstitutionally subjected to surveillance, interception, and key-word spotting analysis are presently unlawfully stored by the NSA, subject to unlawful access at any time in the future. That illegal storage is consistent with the unlawful storage of massive metadata of telephone calls illegally obtained by the NSA, as recounted recently in American Civil Liberties Union v. Clapper, 785 F.3d 787 (2d Cir. 2015) (“The records sought . . . are relevant, in the government's view, because there might at some future point be a need or desire to search them in connection with a hypothetical future inquiry.”). . . .
44. Defendant NSA has participated or directly engaged in the storage of the communications illegally subject to surveillance as described herein in connection with the 2002 Salt Lake Winter Olympic Games and continues to store those communications, which may be accessed, reviewed, and utilized at any time in the future, and is thereby irreparably harming Plaintiffs.
. . .
48. By the acts alleged herein, Defendant NSA's conduct proximately caused, and continues to cause, significant harm to Plaintiffs, including . . . continuing anxiety and immensely disturbing uncertainty about what information has been stored and how it will or might be used at any future time.[14]


         The NSA moves under Rule 12(b)(1), Federal Rules of Civil Procedure, to dismiss Plaintiffs' Amended Complaint on the basis that Plaintiffs fail to allege facts sufficient to establish Article III standing to pursue their claims. The NSA argues Plaintiffs have not plausibly alleged that their communications were subject to NSA surveillance and-even assuming Plaintiffs have alleged their communications were collected-they have failed to plausibly allege the NSA still retains them.[15] Below, the court first identifies the legal standards that govern its analysis, then takes up the NSA's arguments in turn.

         I. Legal Standards

         Article III of the Constitution limits the judicial power of the United States to the resolution of “cases” or “controversies.”[16] As the parties invoking the court's jurisdiction, Plaintiffs have the burden of establishing their standing.[17] To establish standing under Article III's case or controversy requirement, Plaintiffs must “make three showings: first, that they have suffered an injury in fact which is concrete and particularized, and actual or imminent; second, that there is a causal connection between the injury and the challenged conduct; and third, that the injury is likely to be redressed by a favorable decision.”[18]

         The Supreme Court has noted that its “standing inquiry has been especially rigorous when reaching the merits of the dispute would force [the Court] to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.”[19] And the Court observed that it has “often found a lack of standing in cases in which the Judiciary has been requested to review actions of the political branches in the fields of intelligence gathering and foreign affairs.”[20]

         At the motion to dismiss stage, Plaintiffs must establish their standing and the court's jurisdiction under the pleading standards found in Rule 8(a)(1), Federal Rules of Civil Procedure.[21] Rule 8(a)(1) requires only that a complaint contain “a short and plain statement of the grounds for the court's jurisdiction.” The Tenth Circuit instructs that “at the outset of a case it is enough to allege the facts . . . establishing standing” and that “[g]eneral allegations suffice at the pleading stage.”[22] If the allegations supporting standing are challenged, “then the facts have to be litigated.”[23]

         The NSA's Rule 12(b)(1) Motion to Dismiss is a facial challenge focused exclusively on the sufficiency of the allegations in Plaintiffs' Amended Complaint, without reference to declarations, affidavits, or other evidence.[24] To survive such a motion, the Amended Complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”[25] The Supreme Court in Ashcroft v. Iqbal[26] articulated a two-step analysis courts must apply when evaluating a motion to dismiss challenging the adequacy of a complaint.[27]First, the court must “identify[] the allegations in the complaint that are not entitled to the assumption of truth.”[28] And second, the court considers whether the remaining allegations, which the court assumes are true, “plausibly suggest an entitlement to relief.”[29]

         The NSA's argument focuses on the first Iqbal step, and requires the court to determine what kinds of allegations in pleadings are not entitled to an assumption of truth at the motion to dismiss stage. The court here turns to the Supreme Court for guidance.

         The Supreme Court instructs that trial courts generally “must accept as true all the allegations contained in a complaint . . . .”[30] To benefit from the general assumption of truth, the allegations must be well-pleaded[31] and amount to more than legal conclusions[32] or “bare assertions”[33] that are “‘a formulaic recitation of the elements' of a . . . claim.”[34] When “well pleaded factual allegations” are within these bounds, this court is told to “assume their veracity” and proceed to the next step of the Iqbal two-step analysis-“determin[ing] whether they plausibly give rise to an entitlement to relief.”[35] This is so even if it “strikes a savvy judge that actual proof of those facts is improbable”[36] or the allegations are “doubtful in fact.”[37] Indeed, the Court has emphasized in finding untenable “bald” allegations that it was “not reject[ing] these . . . allegations on the ground that they are unrealistic or nonsensical.”[38] It was their “conclusory nature . . . rather than their extravagantly fanciful nature[] that disentitle[d] them to the presumption of truth.”[39] Still, in a dissenting opinion in Iqbal, Justice Souter suggested the compellingly logical point that courts need not accept as true “allegations that are sufficiently fantastic to defy reality as we know it: claims about little green men, or the plaintiff's recent trip to Pluto, or experiences in time travel.”[40]

         The court extracts a widely accepted governing principle from these binding Supreme Court pronouncements and Justice Souter's persuasive, non-contradictory point. At the pre-discovery motion to dismiss stage, this court must assume the truth of well-pleaded factual allegations that are not simply legal conclusions or bare assertions of the elements of a claim-so long as the allegations do not “defy reality as we know it”-even if, in the court's own judgment, those facts seem at the outset incredible, unbelievable, or highly unlikely to be true.

         The NSA argues the case law compels a different approach. It maintains that trial courts are instead required under Iqbal to test plausibility twice when evaluating a motion to dismiss. As part of the first Iqbal step, the NSA submits trial judges must evaluate the plausibility of the facts alleged, and disregard those facts the court finds implausible. Then, after excluding those factual allegations, the court must separately evaluate the plausibility of the legal claims asserted in view of the surviving allegations. The NSA cites as support for this approach three decisions from the Tenth Circuit.[41] This court reads these cases differently.

         While there is some language in these cases from which one could infer that the Tenth Circuit is assessing the plausibility of the facts alleged, [42] the standards the court sets forth[43] and the analysis it employs[44] are consistent with this court's interpretation articulated above. Importantly, when discussing the plausibility standard recently announced in Bell Atlantic Corporation v. Twombly[45]-before that standard was applied and developed in Iqbal-the Tenth Circuit clarified that “[t]his is not to say that the factual ...

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