OAKLAND, Calif. (CN) — The Ninth Circuit said it will not rehear a long-running constitutional challenge to the federal government’s warrantless surveillance of U.S. citizens.
The appellate court’s order issued Tuesday comes after a three-judge panel affirmed with little explanation a federal judge’s dismissal in August.
The panel made up of U.S. Circuit Judges M. Margaret McKeown and Ronald Gould, both Bill Clinton appointees, and U.S. Circuit Judge Carlos Bea, appointed by George W. Bush, said the class failed to provide sufficient evidence they were spied upon by the National Security Agency, an essential component to show they have standing to bring their case.
"Specifically, the Jewel plaintiffs failed to set forth sufficient evidence of particularized injuries in fact — the standing element in dispute on appeal — demonstrating that the government has interfered with their communications and communications records,” the panel wrote in a collective, or per curiam, memo.
No court has yet ruled on whether the government should be allowed to spy on its citizens’ phone and internet communications. First filed in 2008, the class action was brought by five Americans who claimed they were swept up in the NSA’s domestic spying dragnet and sought a declaration that such surveillance programs are illegal and unconstitutional.
The case was initially dismissed in 2010, with U.S. District Judge Vaughn Walker finding the plaintiffs lacked standing and that the claims amounted to general grievances against the government.
A Ninth Circuit panel revived the suit in 2011, but U.S. District Court Judge Jeffrey White dismissed the case in 2015, saying this time the lawsuit would have required the “impermissible disclosure of state secret information” by the government.
Following a second round of oral arguments in 2015, the Ninth Circuit reinstated the case and remanded it for further proceedings. The panel found the Fourth Amendment issue raised on appeal to be “intertwined with several other issues that remain pending in district court.”
White dismissed the class action for a final time in 2019, finding the plaintiffs still could not establish standing through "concrete and particularized injury.”
“Here, the court cannot issue a judgment without exposing classified information,” he wrote. “And, by evaluating the classified information, the court has determined that it cannot render a judgment either as to the merits or as to any defense on the issue of standing.”
The Electronic Frontier Foundation (EFF), a San Francisco-based privacy rights advocacy group that represents the plaintiffs led by Carolyn Jewel, described the legal fight as a “Catch-22,” saying in a statement that “no one can sue unless the court first determines that they were certainly touched by the vast surveillance mechanisms of the NSA, but the court cannot decide whether any particular person’s email, web searches, social media or phone calls were touched by the surveillance unless the government admits it. Which, of course, it will not do.”
The Ninth Circuit panel behind Tuesday's order voted unanimously not to take the case up again, and no other circuit judge requested a full vote on whether to hear it en banc.
EFF Executive Director Cindy Cohen said she and her clients are disappointed in the panel's vote, which comes as the U.S. Supreme Court prepares to decide two cases on the scope of the Foreign Intelligence Surveillance Act of 1978 and the state secrets privilege, which the government has invoked to block lawsuits over its warrantless mass surveillance programs. The justice heard the first case on Oct. 6; the second is set for argument on Nov. 8.
"We are disappointed that the Ninth Circuit was not willing to revisit the decision, especially in light of the two cases pending before the Supreme Court that could be critical to how both the State Secrets Privilege and FISA are interpreted,” Cohen said. “The courts cannot and should not remove themselves from cases where the privacy of millions of Americans are at stake."
Cohen did not rule out a petition to the Supreme Court, saying "We are talking to our clients about options on next steps."
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