ACLU v. NSA/493 F.3d 644/Concurrence Gibbons

by Julia Smith Gibbons

CONCURRING IN THE JUDGMENT

JULIA SMITH GIBBONS, Circuit Judge, concurring.

The disposition of all of the plaintiffs' claims depends upon the single fact that the plaintiffs have failed to provide evidence that they are personally subject to the TSP. Without this evidence, on a motion for summary judgment, the plaintiffs cannot establish standing for any of their claims, constitutional or statutory.^[1] For this reason, I do not reach the myriad other standing and merits issues, the complexity of which is ably demonstrated by Judge Batchelder's and Judge Gilman's very thoughtful opinions, and I therefore concur in the judgment only.

The case or controversy requirement in Article III of the Constitution determines the power of the federal courts to entertain a suit, establishing an "irreducible constitutional minimum of standing" that is required for both constitutional and statutory claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.C.t. 2130, 119 L. Ed. 2d 351 (1992); Warth v. Seldin, 422 U.S. 490, 498, 95 S.C.t. 2197, 45 L. Ed. 2d 343 (1975); O'Shea v. Littleton, 414 U.S. 488, 493 n.2, 94 S.C.t. 669, 38 L. Ed. 2d 674 (1974). The Constitution "requires the party who invokes the court's authority to show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant." Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.C.t. 752, 70 L. Ed. 2d 700 (1982) (quotation marks omitted) (emphasis added). This personal injury must be "an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual and imminent, not conjectural or hypothetical." Defenders of Wildlife, 504 U.S. at 560 (citations and quotation marks omitted); see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181, 120 S.C.t. 693, 145 L. Ed. 2d 610 (2000) (noting that the relevant showing is the injury to the plaintiff, not the environment). In order for a plaintiff to show that the injury from a government policy is actual and imminent, a plaintiff must demonstrate that he personally would be subject to the future application of that policy. City of Los Angeles v. Lyons, 461 U.S. 95, 106 n.7, 103 S.C.t. 1660, 75 L. Ed. 2d 675 (1983); see Laidlaw, 528 U.S. at 184; Davis v. Scherer, 468 U.S. 183, 189 n.7, 104 S.C.t. 3012, 82 L. Ed. 2d 139 (1984). A plaintiff's fear that he will be subject to the policy is insufficient; "[i]t is the reality of the threat of repeated injury that is relevant to the standing inquiry, not the plaintiff's subjective apprehensions."^[2] Lyons, 461 U.S. at 107 n.8; see Laidlaw, 528 U.S. at 184.

Judge Gilman's opinion arrives at the opposite conclusion, relying exclusively on its reading of Laidlaw. It concludes that the attorney-plaintiffs need not show that they have ever been or will ever be actual subjects of surveillance but rather only the "reasonableness of their fear" that they will be subjects of surveillance. (Gilman Op. 44, 50.) In doing so, Judge Gilman transforms the holding in Laidlaw, under which the plaintiffs who were in fact subject to defendant's conduct had standing because they reasonably feared harm from that conduct, into a much broader proposition, under which plaintiffs may establish standing by showing merely that they possess a reasonable fear of being subject to defendant's allegedly harmful conduct. This distinction is critical to "[t]he relevant showing for purposes of Article III standing, . . . injury to the plaintiff," Laidlaw, 528 U.S. at 181, as the Supreme Court made clear in distinguishing Laidlaw from Lyons . In Laidlaw, the Court noted that in Lyons, a policy of chokehold use existed, but the plaintiff's "'subjective apprehensions' that such a recurrence [of the unlawful conduct] would even take place were not enough to support standing." Laidlaw, 528 U.S. at 184. The plaintiff's fear of being subject to conduct of the defendant under the chokehold policy was insufficient to support standing. The Supreme Court further explained that standing was present in Laidlaw because "in contrast, it is undisputed that Laidlaw's unlawful conduct . . . was occurring . . . . [T]hen, the only 'subjective' issue here is 'the reasonableness of the fear' that led the affiants to respond to that concededly ongoing conduct" by refraining from use of the polluted areas. Id. (brackets omitted). The Court noted that it differed from the dissent in seeing nothing "'improbable' about the proposition that a company's continuous and pervasive illegal discharges of pollutants into a river would cause nearby residents to curtail their recreational use of that waterway and would subject them to other economic and aesthetic harms." Id . Thus, in Laidlaw, the plaintiff's fear of harm from the defendant's undisputed conduct-conduct that would also undisputably affect plaintiffs personally if they undertook their desired activities-was sufficient to support standing. Id. at 184-85. In summary, I read Laidlaw to require that plaintiffs demonstrate that they (1) are in fact subject to the defendant's conduct, in the past or future, and (2) have at least a reasonable fear of harm from that conduct.

The Laidlaw majority's discussion of Lyons and its observations about the Laidlaw plaintiffs explain exactly why plaintiffs here are like the plaintiff in Lyons, who lacked standing, and unlike those in Laidlaw, who had standing. Like the plaintiffs in Laidlaw and Lyons, the plaintiffs in the present case may have a reasonable fear of harm from the defendants' conduct. See id. at 184-85 (finding plaintiffs' fear of "economic and aesthetic harms" from "illegal discharges of pollutants" to be "entirely reasonable"); Lyons, 461 U.S. at 100 (describing the deaths of those who were subject to chokeholds). But Laidlaw and Lyons differ in outcome based on whether the plaintiffs have established that they are in fact subject to the conduct of the defendants. Here, plaintiffs fear being subject to a government policy of surveillance and have alleged that they and those with whom they communicate have ceased their normal communication. If they instead continued their normal activities, they would still be fearful, but whether they would actually be subject to surveillance is purely speculative. They are like the Lyons plaintiff who can show nothing more than a fear of the use of a chokehold. See Laidlaw, 528 U.S. at 184 (discussing the "'subjective apprehensions' that such a recurrence would even take place" in Lyons). By contrast, if the Laidlaw plaintiffs had resumed their abandoned activities, they would definitely have been subject to the defendant's conduct-illegal discharges into the river. See id. (contrasting Laidlaw's "concededly ongoing conduct" of "continuous and pervasive illegal discharges of pollutants into a river . . . nearby").

Judge Gilman's attempt to distinguish Lyons from the case at bar is directly contrary to the Supreme Court's own reading of that case. It is immaterial that the likelihood that Lyons would be subject to the chokehold policy may be far more remote than the likelihood that the attorney-plaintiffs in this case may be subject to the warrantless surveillance policy. ( See Gilman Op. 45-46.) As Laidlaw makes clear, a plaintiff must be actually subject to the defendant's conduct, not simply afraid of being subject to it, regardless of how reasonable that fear may be. The Supreme Court's distinction between Laidlaw and Lyons was one of kind, not degree. See Laidlaw, 528 U.S. at 184 (distinguishing between the "subjective apprehensions that such a recurrence would even take place" in Lyons and the "subjective issue [of] the reasonableness of the fear" that pollutants would cause "economic and aesthetic harms" in Laidlaw (internal quotation marks and brackets omitted). Here, the attorney-plaintiffs lack standing because they have failed to present evidence that they are personally subject to the warrantless surveillance policy; that is, the attorney-plaintiffs have failed to present evidence as to whether, in the government's view, "there are reasonable grounds to believe that a party to the [attorney-plaintiffs'] communication[s] is affiliated with al Qaeda." Judge Gilman attempts to distinguish United Presbyterian Church on its facts by confounding the different injuries alleged in that case. The plaintiffs in that case alleged three different kinds of injuries: (1) "the 'chilling' of constitutionally protected activities," United Presbyterian Church, 738 F.2d at 1377; (2) "the immediate threat of being targeted for surveillance," id.; and (3) direct injury from surveillance taken against them, id. at 1380 & n.2. As the plaintiffs in this case have no evidence that they have ever been subject to the TSP, Judge Gilman correctly distinguishes the D.C. Circuit's reasoning on the third alleged injury. (Gilman Op. 46 (discussing the "direct injury" and quoting in part United Presbyterian Church, 738 F.3d at 1380-81 ("The third kind of harm [the plaintiffs] allege is . . . too generalized and nonspecific to support a complaint. . . . There is no allegation or even suggestion that any unlawful action to which the [plaintiffs] have been subjected in the past was the consequence of the presidential action they seek to challenge.")).) Judge Gilman ignores the D.C. Circuit's reasoning on the second alleged injury, for which it found that the plaintiffs lacked standing based upon the same distinction made by the Supreme Court in Laidlaw . The D.C. Circuit noted that the plaintiffs would have standing if they were subject to an "immediate threat of concrete, harmful action." United Presbyterian Church, 738 F.2d at 1380. However, it concluded that the plaintiffs' allegations that "their activities are such that they are especially likely to be targets of the [surveillance] authorized by the order" were insufficient to support standing because those allegations only "place[d] the plaintiffs at greater risk" of being subject to surveillance. Id. There is no relevant factual difference between the United Presbyterian Church plaintiffs, whose activities the D.C. Circuit conceded made them more likely to be subject to surveillance, id., and the attorney-plaintiffs in this case, whose representation of "exactly the types of clients" targeted by the TSP makes them more likely to be targeted by the TSP, (Gilman Op. 47).

Unlike the plaintiffs in United Presbyterian Church and this case, in every case cited by Judge Gilman in which standing was found, the plaintiff was clearly subject to conduct of the defendant about which the plaintiff complained. See Meese v. Keene, 481 U.S. 465, 473, 107 S.C.t. 1862, 95 L. Ed. 2d 415 (1987) (noting that the three films the plaintiff sought to show were identified as "political propaganda"); Steffel, 415 U.S. at 459 (noting that the plaintiff's fear of prosecution was not speculative because he had been personally threatened with prosecution); Ozonoff v. Berzak, 744 F.2d 224, 228 (1st Cir. 1984) (noting that "[a]s one who has worked for the WHO in the past and who has filed an employment application again seeking work," the plaintiff felt constrained by the loyalty standards); Paton v. La Prade, 524 F.2d 862, 865, 870-71, 873 (3d Cir. 1975) (noting that "Paton's name and address were ascertained as a result of the mail cover" and concluding the plaintiff had standing because "she may have sustained or be immediately in danger of sustaining a direct injury as a result" of the FBI investigation directed against her, which resulted from the mail cover).

In applying any understanding of constitutional standing, it is important to recognize the burden of proof required. "The party invoking federal jurisdiction bears the burden of establishing the[] elements" of standing. Defenders of Wildlife, 504 U.S. at 561. "[E]ach element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Id . As this case was decided on the government's motion for summary judgment, the plaintiffs "must 'set forth' by affidavit or other evidence 'specific facts,' which for purposes of the summary judgment motion will be taken to be true." Id . (quoting Fed. R. Civ. P. 56(e)). Applying my formulation of the standing requirements, the plaintiffs have failed to meet this burden because there is no evidence in the record that any of the plaintiffs are personally subject to the TSP. Judge Gilman frequently refers to the attorney-plaintiffs' allegations, (Gilman Op. 44, 47, 48), and concludes that the "attorney-plaintiffs have alleged a[] . . . concrete and particularized injury," (Gilman Op. 47). On summary judgment, however, the plaintiffs' mere allegations are insufficient, and although the publicly admitted information about the TSP "supports" them, (Gilman Op. 48), it does not satisfy the plaintiffs' burden. In applying his formulation of the standing requirement, the reasonableness of plaintiffs' fear, Judge Gilman concludes that "[t]he likelihood that [the plaintiff in Lyons ] would again find himself in a chokehold by the Los Angeles police seems to me far more remote than the ongoing concern of the attorney-plaintiffs here that their telephone or email communications will be intercepted by the TSP." (Gilman Op. 45-46.) Unfortunately for the plaintiffs' position, besides Judge Gilman's subjective assessment, there is no evidence as to the likelihood the plaintiffs will be surveilled for this court to consider on summary judgment.

Under any understanding of constitutional standing, the plaintiffs are ultimately prevented from establishing standing because of the state secrets privilege.^[3] As Judge Batchelder notes, plaintiffs have not challenged the government's invocation of the privilege or its application. All three members of the panel have reviewed the documents filed by the government under seal that arguably are protected by the privilege. The state secrets privilege operates as a bar to the admission of evidence to which the privilege attaches, and the plaintiff must proceed without the benefit of such evidence. See United States v. Reynolds, 345 U.S. 1, 11, 73 S.C.t. 528, 97 L. Ed. 727 (1953); see also Ellsberg v. Mitchell, 228 U.S. App. D.C. 225, 709 F.2d 51, 65 (D.C. Cir. 1983). Where the privilege prevents the plaintiff from producing sufficient evidence to establish his or her prima facie case, the court must dismiss the claim. Kasza v. Browner, 133 F.3d 1159, 1166 (9th Cir. 1998). In this way, the state secrets privilege has prevented the plaintiffs from conducting discovery that might allow them to establish that they are personally subject to the TSP, as I believe constitutional standing requires. However, where the privilege deprives the government of a valid defense to the plaintiff's claim, the court must also dismiss the claim. Tenenbaum v. Simonini, 372 F.3d 776, 777, 96 Fed. Appx. 998 (6th Cir. 2004); Kasza, 133 F.3d at 1166. Even applying Judge Gilman's formulation of the standing requirement, the court cannot avoid the state secrets privilege.^[4] Evidence arguably protected by the state secrets privilege may well be relevant to the reasonableness of the plaintiffs' fear. Whether that evidence is favorable to plaintiffs or defendants, its unavailability requires dismissal. That it may be unsatisfying that facts pertinent to the standing inquiry are unavailable can have no bearing on the disposition of this case. If the state secrets privilege prevents the plaintiffs from presenting adequate evidence of their standing, we must dismiss their claims. If the state secrets privilege prevents the government from presenting evidence that might refute the plaintiffs' allegations that they are likely to be surveilled and undercut the reasonableness of their asserted fear, we must also dismiss the plaintiffs' claims.

Footnotes

1. Although Judge Batchelder clearly disagrees about the depth of treatment required, at least with respect to the plaintiffs' constitutional claims and FISA claim, she appears to agree that the plaintiffs' failure to demonstrate that they have been subject to the TSP is fatal to their constitutional standing. ( See Batchelder Op. 9-10 (discussing all the claims generally and FISA specifically); id. at 13-14, 18 (First Amendment); id. at 23 (Fourth Amendment); id. at 24 (Separation of Powers).) We may differ, however, with respect to the plaintiffs' other statutory claims because Judge Batchelder determines that the statutes do not apply without reaching the issue of constitutional standing. My reading of Supreme Court precedent suggests that we must reach the constitutional standing issue first with respect to all the claims. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89, 92-93, 118 S.C.t. 1003, 140 L. Ed. 2d 210 (1998) (warning that a court must determine constitutional standing before addressing the "existence of a cause of action"); see also Sierra Club v. Morton, 405 U.S. 727, 732, 92 S.C.t. 1361, 31 L. Ed. 2d 636 & n.3 (1972) (noting that the inquiry as to "whether the statute in question authorizes review at the behest of the plaintiff" occurs where a dispute is "otherwise justiciable" because Article III jurisdiction is present). Because in my view the plaintiffs have no constitutional standing to raise any of their claims, I find it unnecessary to discuss the applicability of the other statutes.
2. This is not to say that a plaintiff lacks standing until a defendant has acted. A "genuine threat" of enforcement of a policy against a plaintiff who is demonstrably subject to that policy supports standing. See Steffel v. Thompson, 415 U.S. 452, 475, 94 S.C.t. 1209, 39 L. Ed. 2d 505 (1974). But that case differs from one in which a plaintiff cannot establish that he is subject to the policy but merely fears that he is subject to the policy that may be enforced, which cannot support standing. See, e.g., United Presbyterian Church in the U.S.A. v. Reagan, 238 U.S. App. D.C. 229, 738 F.2d 1375, 1380 (D.C. Cir. 1984).
3. Judge Batchelder's decision does not discuss the implications of the state secrets privilege because, under her reading of Laird v. Tatum, 408 U.S. 1, 92 S.C.t. 2318, 33 L. Ed. 2d 154 (1972), the plaintiffs can establish standing only if they are "regulated, constrained, or compelled directly by the government's actions," (Batchelder Op. at 13), not if their injury "aris[es] from a personal subjective chill" caused by the existence of government surveillance, (Batchelder Op. 16; see Batchelder Op. 14-15). The implication of this reasoning is that even if the plaintiffs had evidence that they were personally subject to the TSP, they would not have standing if the government was only conducting surveillance.
   It is not clear to me that Laird must be read this way. The language in Laird about regulation, proscription, and compulsion to me seems merely descriptive of the facts in prior cases in which the Supreme Court had found standing. Laird could be read as holding that when the only harm alleged is chilled speech, then the exercise of governmental power must be regulatory, proscriptive, or compulsory in nature. See Laird, 408 U.S. at 11, 13-14. Here, the plaintiffs' professional injuries are arguably a harm beyond chilled speech. Furthermore, because the plaintiffs in Laird alleged only chilled speech, Laird does not directly address whether other injuries that derive from the chilled speech must be discounted. See id. at 13-14. Given this ambiguity, I see no need to express an opinion as to the extent of Laird's holding and whether the plaintiffs could establish standing were they to provide evidence that they were personally subject to surveillance.
   In any event, even under Judge Batchelder's reasoning, the state secrets privilege plays a prominent role that must be acknowledged. Because of the state secrets privilege, the plaintiffs are unable to conduct discovery to determine if information from the TSP is used in such a way as to satisfy the requirements that Judge Batchelder finds in Laird.
4. Judge Gilman's opinion does not dispute the majority opinion's contention that the plaintiffs' standing would be undermined if the NSA hypothetically adhered to a policy of complete nondisclosure, but rather criticizes the analysis as speculation. (Gilman Op. 51.) It correctly notes that we cannot know whether such a policy exists "[a]bsent a public revelation from the NSA." (Gilman Op. 51.) However, it misapprehends the impact of this observation. The plaintiffs' claims fail not because of the majority's speculation that such a policy exists but rather because the state secrets privilege precludes the NSA from disclosing whether it exists.