Case 2:15-cv-02573-PSG-JPR Document 38 Filed 08/14/15 Page 1 of 15 Page ID #:406

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-2573 PSG (JPRx)

Title

Human Rights Watch v. Drug Enforcement Agency, et al.

Present: The Honorable

Date

August 14, 2015

Philip S. Gutierrez, United States District Judge

Wendy Hernandez

Not Reported

Deputy Clerk

Court Reporter

Attorneys Present for Plaintiff(s):

Attorneys Present for Defendant(s):

Not Present

Not Present

Proceedings (In Chambers):

Order HOLDING IN ABEYANCE Ruling on the Motion to
Dismiss and GRANTING IN PART Plaintiff’s Request for
Discovery

Before the Court is Defendants Drug Enforcement Administration (“DEA”), Michele
Leonhart (DEA Administrator), Federal Bureau of Investigation (“FBI”), James Comey (FBI
Director), Department of Justice (“DOJ”), Eric Holder (Attorney General), Department of
Homeland Security (“DHS”), Jeh Johnson (DHS Secretary), and United States of America’s
(collectively, “Defendants” or the “Government”) motion to dismiss for lack of subject matter
jurisdiction. Dkt. # 24; Compl. ¶¶ 11-19. Also before the Court is Plaintiff Human Rights
Watch’s (“HRW”) request for discovery and an evidentiary hearing related to the Government’s
motion. See Dkt. # 33. The Court finds this matter appropriate for decision without oral
argument. Fed. R. Civ. P. 78(b); L.R. 7-15. After considering the arguments in the supporting
and opposing papers, the Court HOLDS IN ABEYANCE ruling on the motion to dismiss and
GRANTS IN PART HRW’s request for discovery and an evidentiary hearing.
I.

Background
A.

Factual Background

Plaintiff Human Rights Watch (“HRW”) is an international non-profit organization
dedicated to defending and promoting human rights around the world. Id. ¶¶ 4, 10. It challenges
governments and those in power to end abusive practices and to respect international human
rights laws by enlisting the public and international community to support the cause of human
rights for all. Id. ¶ 10. In support of its mission, HRW and its staff regularly communicate by
telephone with individuals in foreign countries. Id. ¶¶ 3-4. In this lawsuit, HRW, on behalf of
itself and its staff, challenges a program of “untargeted and suspicionless surveillance of
Americans” by the Government. Compl. ¶¶ 1-2, 4. The Complaint refers to this program as the
“Mass Surveillance Program” or the “Program.” Id. ¶ 22.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-2573 PSG (JPRx)

Title

Human Rights Watch v. Drug Enforcement Agency, et al.

i.

Date

August 14, 2015

The Patterson Declaration’s Description of the Mass Surveillance Program

In a January 2015 filing in a criminal case in the District Court for the District of
Columbia (United States v. Hassanshahi, No. 13-CR-274 (RC) (D.D.C.)), the Government
acknowledged the existence of the Mass Surveillance Program for the first time in the
declaration of Assistant Special Agent in Charge at the DEA, Robert W. Patterson (“Patterson”).
Id. ¶ 27. HRW attached the slightly redacted public version of the declaration to its complaint
(the “Patterson Declaration”). See Compl., Ex. A [“Patterson Decl.”]. In the Patterson
Declaration, the Government disclosed that it had collected and queried certain telephone data
under the authority of 21 U.S.C. § 876. Patterson Decl. ¶ 4.
The Government attested that it had previously collected “telecommunications metadata”
pursuant to administrative subpoenas served on United States telecommunications service
providers that the Government stored in a federal law enforcement database. Id. ¶¶ 3-4. This
metadata consisted exclusively of the initiating telephone number; the receiving telephone
number; the date, time, and duration of the call; and the method by which the call was billed. Id.
¶ 4. No subscriber information, other personal identifying information, or communication
content was included in the database. Id. The collected metadata related to international phone
calls originating in the United Sates and calling “designated foreign countries” that were
determined to have a “demonstrated nexus to international drug trafficking and related criminal
activities.” Id. The Patterson Declaration specifically identified Iran as one of the “designated
foreign countries.” Id. The collected information could then be used to query a telephone
number where “federal law enforcement officials had a reasonable articulable suspicion that the
telephone number at issue was related to an ongoing federal criminal investigation.” Id. ¶ 5.
The Patterson Declaration attached to the Complaint declares that use of this federal law
enforcement database was suspended in September 2013 and that it is no longer being queried
for investigatory purposes. Id. ¶ 6. Moreover, information is no longer being collected in bulk
pursuant to 21 U.S.C. § 876. Id.
ii.

Additional Allegations Regarding the Mass Surveillance Program

The Complaint alleges that the Mass Surveillance Program consists of the Government’s
collection, retention, search, use, and dissemination of call records for “all, or substantially all”
telephone calls originating in the United States and terminating in the “designated countries.”
Id. ¶ 23. The Complaint generally defines “designated countries” as they were defined in the
Patterson Declaration – “countries that are determined to have a ‘demonstrated nexus to
international drug trafficking and related criminal activities’” – and further alleges that these
countries are same as those that the President annually certifies as “major drug transit and/or
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-2573 PSG (JPRx)

Date

Title

Human Rights Watch v. Drug Enforcement Agency, et al.

August 14, 2015

major illicit drug producing countries” pursuant to the Foreign Relations Authorization Act, 22
U.S.C. §§ 2291j-l(1). Id. ¶¶ 29, 31. The Complaint lists 20 countries that the President has
annually certified under this statute since 2010 and alleges that each of these countries is a focus
of DEA activity. Id. ¶¶ 31-32. The Patterson Declaration does not mention the Foreign
Relations Authorization Act and only specifically identifies Iran as a “designated foreign
country” for the purposes of the Program. Patterson Decl. ¶ 4.
The Complaint asserts that the telephone data collected through the Mass Surveillance
Program is retained and stored by the Government in “one or more” databases, see Compl. ¶ 34,
but the Patterson Declaration only references one database, Patterson Decl. ¶¶ 1, 3-6. Contrary
to the sworn representation in the Patterson Declaration, HRW alleges that the Government
continues to search, use, and disseminate information obtained through the Program. Compl. ¶¶
37, 55.
iii.

HRW Telephone Records

HRW’s staff includes country-specialists, lawyers, journalists, advocates, and academics
who conduct fact-finding missions and investigate human rights abuses, reporting on human
rights conditions in some 90 countries around the world. Id. ¶ 40. HRW asserts that it and its
staff work regularly on human rights issues in many of the designated foreign countries,
including Iran and eleven other specifically identified countries, because the countries that
feature illicit drug production or trafficking often present a range of human rights abuses. Id. ¶
41-43.
The Complaint states that HRW and its staff use U.S. telecommunications services to
communicate with individuals, such as victims of or witnesses to human rights abuses, in these
specified countries. Id. ¶¶ 44-45. HRW asserts that just the fact that communication with these
individuals has occurred is often “extraordinarily sensitive” because these contacts “often fear
for their physical safety” and the act of “contacting an international human rights organization,
like HRW, can put them in harm’s way.” Id. ¶¶ 44-45. HRW communicates to individuals in
the designated countries using HRW’s Verizon phone lines, staff members’ personal phone
lines, and Internet-based platforms like Google Voice. Id. ¶ 46. From these supporting facts,
HRW alleges that “Defendants obtained records of HRW’s communications to the Designated
Countries as part of the Mass Surveillance Program.” Id. ¶ 47.
The Complaint claims that the telecommunications metadata, collected in bulk, provides
the Government with the network of HRW’s sources, colleagues, and associates within the
designated countries, which is information that HRW often considers sensitive and private. Id.
¶¶ 48-49. HRW asserts that even if the Government never queried or attempted to identify its
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-2573 PSG (JPRx)

Date

Title

Human Rights Watch v. Drug Enforcement Agency, et al.

August 14, 2015

contacts within the designated countries, “the fact that the government collects this information
in the first place . . . burdens HRW’s ability to effectively communicate with people inside the
Designated Countries” because HRW “cannot assure its associates abroad that their
communications records will not be shared with American law enforcement[.]” Id. ¶¶ 50-51.
iv.

The Second Patterson Declaration

The Patterson Declaration states that use of the database was suspended in September
2013, that it is no longer being queried for investigatory purposes, and that information is no
longer being collected in bulk pursuant to 21 U.S.C. § 876. Patterson Decl. ¶ 6. However, the
declaration is silent as to whether the Government retained the information contained in the
database. In the Complaint, HRW highlights that the Government has not stated “that all
information obtained through the Mass Surveillance Program, including HRW’s information,
has been purged from Defendants’ systems.” Compl. ¶ 37. HRW specifically alleges that the
Government has in fact “retain[ed] the information gathered pursuant to the Mass Surveillance
Program[.]” Id. ¶ 55.
Along with its motion to dismiss for lack of subject jurisdiction, the Government submits
a second declaration of Robert W. Patterson (“Second Patterson Declaration”). See Mot.,
Patterson Decl. [“Second Patterson Decl.]. In the Second Patterson Declaration, Patterson
attests that, “[p]rior to April 7, 2015, the date of the Complaint in the [] case, the database has
been purged of the collected data, and the database no longer exists.” Id. ¶ 3.
B.

Procedural Background

On April 7, 2015, HRW filed this lawsuit against the Government on behalf of itself and
its staff asserting that the Mass Surveillance Program violates its First Amendment associational
rights and its Fourth Amendment right to be free from unlawful searches and seizures. Dkt. # 1.
HRW does not request damages for past violations of its constitutional rights; instead, HRW
requests the following forms of relief:
(1)

A declaration that the Mass Surveillance Program violates HRW’s rights under the
First and Fourth Amendments;

(2)

An order enjoining the Government from continuing the Mass Surveillance
Program;

(3)

An order enjoining the Government from future search, use, or dissemination of
HRW’s call records obtained through the Mass Surveillance Program;

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-2573 PSG (JPRx)

Date

Title

Human Rights Watch v. Drug Enforcement Agency, et al.

August 14, 2015

(4)

An order requiring the Government to provide an inventory of HRW’s call records
obtained through the Mass Surveillance Program;

(5)

An order requiring the Government to purge all HRW’s call records obtained
through the Mass Surveillance Program; and

(6)

Attorneys’ fees and costs.

Id.
One month after filing the case, HRW filed a motion for expedited discovery to obtain
more information about the Mass Surveillance Program. Dkt. # 19. The Court denied the
motion on July 10, 2015. Dkt. # 31. While the motion for expedited discovery was pending, the
Government moved to dismiss the case for lack of subject matter jurisdiction. Dkt. # 24. Along
with its opposition brief, HRW filed a request for jurisdictional discovery and an evidentiary
hearing. Dkt. # 33. The Government’s motion and HRW’s request are presently before the
Court.
II.

Legal Standard

Federal courts are of limited jurisdiction and limits upon federal jurisdiction must not be
disregarded or evaded. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978).
Accordingly, whoever invokes the court’s jurisdiction has the burden to establish that subject
matter jurisdiction is proper. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994).
This burden, at the pleading stage, must be met by pleading sufficient allegations to show a
proper basis for the court to assert subject matter jurisdiction over the action. McNutt v. General
Motors Acceptance Corp., 298 U.S. 178, 189 (1936). If the Court lacks subject matter
jurisdiction, dismissal is appropriate under Federal Rule of Civil Procedure 12(b)(1). Fed. R.
Civ. P. 12(b)(1).
A jurisdictional attack under Rule 12(b)(1) may be facial or factual. Safe Air for
Everyone v. Meyer, 373 F.3d 1035, 1038 (9th Cir. 2004); Moon v. Rush, No. 2:11-cv-03102GEB-CKD, 2013 WL 4012828, *2 (E.D. Cal. Aug. 6, 2013). “In a facial attack, the challenger
asserts that the allegations contained in a complaint are insufficient on their face to invoke
federal jurisdiction.” Safe Air, 373 F.3d at 1039. In this review, the standards set forth in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009)
apply in full force. See City of L.A. v. Citigroup Inc., 24 F. Supp. 3d 940, 945 (C.D. Cal. 2014).
Thus, the court must accept the facts pled in the complaint as true and construe them in the light
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-2573 PSG (JPRx)

Date

Title

Human Rights Watch v. Drug Enforcement Agency, et al.

August 14, 2015

most favorable to the plaintiff. Faulkner v. ADT Sec. Servs., Inc., 706 F.3d 1017, 1019 (9th Cir.
2013). Courts also consider documents attached to the complaint when reviewing the
sufficiency of pleading allegations, Hal Roach Studios v. Richard Reiner & Co., 896 F.2d 1542,
1555 n.19 (9th Cir. 1990), and “need not . . . accept as true allegations that contradict matters
properly subject to judicial notice or exhibit,” Sprewell v. Golden State Warriors, 266 F.3d 979,
988 (9th Cir. 2001). Additionally, the pleading standard requires the plaintiff to allege
“plausible” liability, meaning the plaintiff must plead “factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,
556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “[S]heer possibility” of liability is not
enough. Id.
In a factual attack, “the challenger disputes the truth of the allegations that, by
themselves, would otherwise invoke jurisdiction,” and courts may consider evidence outside the
pleadings. Safe Air, 373 F.3d at 1038-39. In this review, the court “need not presume the
truthfulness of the allegations in the complaint.” City of L.A., 24 F. Supp. 3d at 945 (C.D. Cal.
2014) (citation omitted). If a challenger presents evidence to “attack the substance of a
complaint’s jurisdictional allegations,” “[i]t then becomes necessary for the party opposing the
motion to present affidavits or any other evidence necessary to satisfy its burden of establishing
that the court, in fact, possesses subject matter jurisdiction.” St. Clair v. City of Chico, 880 F.2d
199, 201 (9th Cir. 1989). Accordingly, “[d]iscovery is necessary . . . if it is possible that the
plaintiff can demonstrate the requisite jurisdictional facts if afforded that opportunity.” Id.
(citing Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 430 n.24 (9th Cir. 1977)).
III.

Discussion

The Government moves to dismiss HRW’s Complaint for lack of subject matter
jurisdiction, arguing that HRW has failed to establish that it has standing to pursue its claims.
The Government’s motion first asserts a facial attack, contending that even accepting the
plausible allegations of the Complaint as true, HRW has not alleged facts sufficient to establish
standing. Alternatively, the Government brings a factual attack on jurisdiction, offering
evidence that the Government has already destroyed any information collected pursuant to the
Mass Surveillance Program. The Court will outline the constitutional standing requirements
then discuss the Government’s facial and factual jurisdictional challenges in turn.

A.

CV-90 (10/08)

Standing

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-2573 PSG (JPRx)

Date

Title

Human Rights Watch v. Drug Enforcement Agency, et al.

August 14, 2015

“Article III of the Constitution limits federal courts’ jurisdiction to certain ‘Cases’ and
Controversies.’” Clapper v. Amnesty Intern. USA, 133 S.Ct. 1138, 1146 (2013). As the
Supreme Court has explained, “[n]o principle is more fundamental to the judiciary’s proper role
in our system of government than the constitutional limitation of federal-court jurisdiction to
actual cases or controversies.” DaimlerChrystler Corp. v. Cumo, 547 U.S. 332, 341 (2006).
“‘One element of the case-or-controversy requirement’ is that plaintiffs ‘must establish that they
have standing to sue.’” Amnesty, 133 S.Ct. at 1146 (quoting Raines v. Byrd, 521 U.S. 811, 818
(1997)). “The law of Article III standing, which is built on separation of powers principles,
serves to prevent the judicial process from being used to usurp the powers of the political
branches.” Id. (citations omitted).
“The ‘irreducible constitutional minimum of standing’ contains three requirements: injury
in fact, causation, and redressability. Steel Co. v. Citizens for a Better Environment, 523 U.S.
83, 102-04 (1998) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). First, the
plaintiff must allege an injury in fact – “a harm suffered by the plaintiff that is ‘concrete’ and
‘actual or imminent,’ not ‘conjectural’ or ‘hypothetical.’” Id. at 103 (internal quotations
omitted). “Second, there must be causation – a fairly traceable connection between the
Plaintiff’s injury and the complained-of conduct of the defendant.” Id. (citations omitted).
“And third, there must be redressability – a likelihood that the requested relief will redress the
alleged injury.” Id. (citations omitted). The party invoking federal jurisdiction bears the burden
of establishing standing. Id. at 104 (citing FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990)).
B.

Facial Attack on Standing
i.

Injury in Fact

Because HRW does not seek damages, “it is not the presence or absence of a past injury
that determines Article III standing.” Ervine v. Desert View Regional Med. Ctr. Holdings, LLC,
753 F.3d 862, 868 (9th Cir. 2014) (emphasis added). Rather, when seeking injunctive relief, it is
the “imminent prospect of future injury” or an “ongoing violation” that creates standing. Id.;
Steel Co., 523 U.S. at 108.
1.

Past Collection of HRW Records

First, the Government argues that HRW has not pled that it suffered an injury in fact as a
result of the Mass Surveillance Program because HRW has not plausibly alleged that its call
records were ever collected pursuant to this Program. Mot. 8:6-9:7. The Government contends
that HRW’s allegation that “Defendants obtained records of HRW’s communications to the
Designated Countries as part of the Mass Surveillance Program,” see Compl. ¶ 47, is insufficient
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-2573 PSG (JPRx)

Date

Title

Human Rights Watch v. Drug Enforcement Agency, et al.

August 14, 2015

because it lacks supporting factual allegations that render the claim plausible, rather than merely
possible. See Iqbal, 556 U.S. at 678. For example, the Government highlights that the
Complaint and the attached Patterson Declaration do not identify the specific U.S.
telecommunications companies that received administrative subpoenas under the Program or a
time period during which the Government requested and collected call information. Mot. 8:179:2. The Court acknowledges that the Complaint does not contain such particularized pleadings
as: HRW staff called individuals in Iran using Verizon lines in 2012; the Government issued
subpoenas to Verizon for all 2012 Iranian call data; Verizon produced all 2012 Iranian call data
to the Government; the Government obtained HRW’s 2012 Iranian call data. However, HRW’s
allegation that the Government collected records of its communications to designated foreign
countries pursuant to the Mass Surveillance Program is supported by some specific factual
allegations that render this allegation plausible, rather than merely possible.
The Patterson Declaration states that the Government compiled a database “consisting of
telecommunications metadata obtained from United States telecommunications service providers
pursuant to administrative subpoenas served upon the service providers under the provisions of
21 U.S.C. § 876.” Patterson Decl. ¶ 4. The metadata “related to international phone calls
originating in the United Sates and calling [] designated foreign countries, one of which was
Iran, that were determined to have a demonstrated nexus to international drug trafficking and
related criminal activities.” Id. The database could then “be used to query a telephone number
where federal law enforcement officials had a reasonable articulable suspicion that the telephone
number at issue was related to an ongoing federal criminal investigation.” Id. ¶ 5. From these
factual representations, HRW alleges that the program collected call records for “all, or
substantially all” telephone calls originating in the United States and terminating in the
“designated countries” since at least 2011. Compl. ¶¶ 23, 25.
This allegation that “all, or substantially all” of these calls were collected necessarily
embraces the more specific factual allegation that the Government issued subpoenas to all, or
substantially all U.S. telecommunications companies to collect these calls. See Defenders of
Wildlife, 504 U.S. at 561. “At the pleading stage, general factual allegations of injury resulting
from the defendant’s conduct may suffice, for on a motion to dismiss we ‘presum[e] that general
allegations embrace those specific facts that are necessary to support the claim.’” Id. (quoting
Lujan v. National Wildlife Federation, 497 U.S. 871, 889 (1990)); see also Bennett v. Spears,
520 U.S. 154, 167 (1997) (finding that plaintiffs who used a lake for irrigation sufficiently pled
injury in fact by alleging that “the amount of available water [in the lake] will be reduced and
that they will be adversely affected thereby” because “it is easy to presume specific facts under
which petitioners will be injured – for example, the Bureau’s distribution of the reduction pro
rata among its customers”). Moreover, HRW’s allegation that the Government collected call
data on “all, or substantially all” calls is plausible. First, the Patterson Declaration did not
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-2573 PSG (JPRx)

Date

Title

Human Rights Watch v. Drug Enforcement Agency, et al.

August 14, 2015

contain language indicating that the Government targeted only some U.S. telecommunications
providers, instead it stated broadly that metadata was “obtained from United States
telecommunications service providers.” Patterson Decl. ¶ 4. Further, because the only criteria
for collection were the involvement of certain initiating and receiving countries and the
Program’s aim was to create a broad database for criminal investigation queries, it is not
implausible that subpoenas would be issued to all U.S. telecommunications companies
requesting all qualifying data so that the Government could compile a complete database to
better serve the investigative query purpose.
HRW alleges that it used U.S. telecommunications companies, such as Verizon, to
communicate with individuals in foreign countries with drug connections, such as Iran. See
Compl. ¶¶ 29-30, 41-46.1 In light of the plausible allegation that nearly all such calls were
collected pursuant to the Program, the pled facts regarding HRW’s telephone practices support
the ultimate allegation that the Government did collect HRW’s call data, as directly alleged in
the Complaint. Id. ¶ 47.
2.

Factual Bases for Ongoing or Future Injury

The Government further argues that even if it did collect HRW’s call data as a part of its
Mass Surveillance Program in the past, HRW does not plausibly allege that collection or use of
the data is ongoing or imminently impending, as required to establish injury when seeking
injunctive or declaratory relief. Mot. 9:8-10:5; see Ervine, 753 F.3d at 868; Steel Co., 523 U.S.
at 108. According to the Patterson Declaration, which as an evidentiary exhibit properly
incorporated into the Complaint, HRW cannot rewrite by conclusory allegation, the Government
no longer collects, uses, or queries data amassed via the Mass Surveillance Program. Patterson
Decl. ¶ 6. The allegation that the Government “will begin to collect” data again in the future,
see Compl. ¶ 55, is entirely speculative and based only on the factual allegation that collection
1

The Government argues that HRW fails to allege that any of its staff members made calls to
Iran, see Mot. 9:4-7, but, reading the Complaint in the light most favorable to HRW, the
Complaint does assert that allegation. See Faulkner, 706 F.3d at 1019. In ¶ 41, HRW states that
“HRW has dedicated experts monitoring and working to protect human rights in Iran.” Compl. ¶
41. In ¶ 42, HRW alleges that it also has “experts researching and monitoring” eleven additional
drug transit or drug producing countries, and identifies those countries. Id. ¶ 42. In the
following paragraph, HRW states that “[u]sing U.S. telecommunications services, HRW and its
staff communicate in the regular course of work with individuals within many of the Designated
Countries, including those listed above[.]” Id. ¶ 43. Reading the reference to the countries
“listed above” in the light most favorable to HRW, the Court interprets the phrase to include Iran
(identified in ¶ 41) as well as the eleven additional countries (identified in ¶ 42).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-2573 PSG (JPRx)

Date

Title

Human Rights Watch v. Drug Enforcement Agency, et al.

August 14, 2015

has occurred in the past. However, the “likelihood of a future injury cannot be based solely on
the defendant’s conduct in the past.” See Gordon v. City of Moreno Valley, 687 F. Supp. 2d 930,
938 (C.D. Cal. 2009) (internal quotation omitted) (emphasis in original). Thus, the Court agrees
the HRW fails to allege a plausible injury based on the collection, use, search, or dissemination
of its call data because the conclusory allegations that such conduct is ongoing or might occur in
the future are contradicted by the Patterson Declaration or unsupported by other plausible factual
allegations. See Reply 1:21-4:2.
However, under a facial jurisdictional analysis that does not consider the Second
Patterson Declaration, HRW does plausibly allege that the Government has retained HRW’s call
data that it collected in the past. The Patterson Declaration is silent as to whether the
Government retained the information contained in the database. See generally Patterson Decl.
In the Complaint, HRW notes that the Government has not stated “that all information obtained
through the Mass Surveillance Program, including HRW’s information, has been purged from
Defendants’ systems,” Compl. ¶ 37, and specifically alleges that the Government has in fact
“retain[ed] the information gathered pursuant to the Mass Surveillance Program[.]” Id. ¶ 55.
Thus, the retention of HRW’s call records is the only Government conduct available to support
HRW’s argument that the Government is injuring it such that HRW has standing to bring its
Fourth and First Amendment claims.
3.

Fourth Amendment Injury

The Ninth Circuit has held that retention of unlawfully seized information constitutes a
Fourth Amendment injury in fact for standing purposes. See Mayfield v. U.S., 599 F.3d 964,
969-71 (9th Cir. 2010). In Mayfield, the government unlawfully seized files from plaintiff’s
home and made derivative materials from those files, but later returned the files and paid
damages to plaintiff pursuant to a partial settlement. Id. at 966-68. The plaintiff brought suit for
declaratory relief (a ruling that the government was violating the Fourth Amendment) and
alleged standing based on the government’s “continued retention of derivative materials.” Id. at
968-69. “The district court determined that [plaintiff] alleged an ongoing injury by the very fact
of the government’s retention of derivative [] materials” and the Ninth Circuit “agree[d] that
[plaintiff] suffers an actual, ongoing injury” on that basis. Id. at 970-71. Accordingly, HRW’s
allegation that the Government currently possesses unlawfully collected HRW call data, an
allegation that the Court deems plausible based on the Complaint and Patterson Declaration,
sufficiently pleads a Fourth Amendment injury in fact.
4.

CV-90 (10/08)

First Amendment Injury

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-2573 PSG (JPRx)

Date

Title

Human Rights Watch v. Drug Enforcement Agency, et al.

August 14, 2015

HRW also asserts that the Government’s conduct pursuant to the Mass Surveillance
Program violates HRW’s First Amendment rights under an associational “chilling” theory –
HRW alleges that “the fact that th[e] information remains within the Defendants’ possession to
this day . . . substantially burdens HRW’s ability to effectively communicate with people inside
the Designated Countries” because HRW “cannot assure its associates abroad that their
communications records will not be shared with American law enforcement or the government
of another country.” See Compl. ¶¶ 50-51. HRW’s alleged injury is that due to the retention of
its call data, HRW’s contacts in the foreign designated countries, individuals who are “put in
harm’s way” based on the “mere fact of contacting an international human rights organization,”
will refuse to communicate with HRW, thus constricting HRW’s associational rights. Id. ¶ 45,
50-51; Mot. 14:2-16. The Government argues that this purported “chill” in communication is
speculative and “cannot qualify as a concrete, actual, or immediate injury even for the purposes
of a First Amendment claim” and also challenges this injury on causation grounds. See Mot.
14:17-15:22.
The Court does not reach the legal sufficiency of this claimed injury because HRW has
not alleged this First Amendment injury with factual sufficiency. Injury in fact requires a harm
that is “‘concrete’ and ‘actual or imminent,’ not ‘conjectural’ or ‘hypothetical.’” Steel Co., 523
U.S. at 103 (internal quotations omitted). HRW does not provide any factual allegations that
indicate that HRW’s chilled communication concern is actual and imminent rather than
conjectural. For example, HRW does not allege that any of its contacts know about the Mass
Surveillance Program or that they have ever refused to communicate with HRW due to the
Government’s retention of collected telephone metadata pursuant to a Program that has been
occurring for years. Without alleging any specific supporting facts, HRW’s statement that its
“ability to effectively communicate with people inside the Designated Countries” has been
burdened is a conclusory allegation that the Court does not accept. Moreover, the allegation that
HRW “cannot assure its associates abroad that their communications records will not be shared”
is implausible in light of the Patterson Declaration’s attestation that the Government is not
currently using or querying the collected information. See Compl. ¶ 51; Patterson Decl. ¶ 6.
“A plaintiff must demonstrate standing ‘for each claim he seeks to press’ and for ‘each
form of relief sought.’” Oregon v. Legal Servs. Corp., 552 F.3d 965, 969 (9th Cir. 2009)
(quoting DaimlerChrystler, 547 U.S. at 352). The Court concludes that Plaintiff has sufficiently
alleged a Fourth Amendment injury in fact in the Government’s retention of HRW’s call records,
but not a First Amendment injury in fact. Accordingly, HRW lacks standing to assert its First
Amendment claim as alleged in the operative Complaint.
ii.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-2573 PSG (JPRx)

Date

Title

Human Rights Watch v. Drug Enforcement Agency, et al.

August 14, 2015

In the remainder of the facial standing analysis, the Court will only address HRW’s
claimed Fourth Amendment injury. To satisfy standing’s causation requirement, there must be a
“fairly traceable connection between the Plaintiff’s injury and the complained-of conduct of the
defendant.” Steel Co., 523 U.S. at 103 (citations omitted). The Government does not dispute
that HRW’s alleged Fourth Amendment injury – retention of unlawfully seized call data – is
fairly traceable to its collection and retention of that material pursuant to the Mass Surveillance
Program. See Mot. 14:1-15:22; Opp. 11:1-6. The Court agrees that the Fourth Amendment
injury is fairly traceable to the Government’s retention of HRW data seized pursuant to the
Program.
iii.

Redressability

“Relief that does not remedy the injury suffered cannot bootstrap a plaintiff into federal
court; that is the very essence of the redressability requirement.” Steel Co., 523 U.S. at 107. In
the Court’s facial jurisdictional analysis, redressability is easily satisfied. The Court has
determined that the Government’s retention of HRW’s call records is a Fourth Amendment
injury fairly traceable to the Government’s Mass Surveillance Program. As one of its requested
items of relief, HRW asks the Court to order the Government to “purge all Plaintiff’s call
records obtained through the Mass Surveillance Program.” See Compl. 17:6-8. This request for
injunctive relief would remedy the alleged Fourth Amendment injury. See Mayfield, 599 F.3d at
972 (where the injury is retention of unlawfully seized materials, “the only relief that would
redress this Fourth Amendment violation is an injunction requiring the government to return or
destroy such materials”). Accordingly, HRW has satisfied the redressability requirement of
constitutional standing for its Fourth Amendment claim.
C.

Factual Attack on Standing

The Court’s assessment of standing is very different if the Court conducts a factual, rather
than a facial, analysis of HRW’s injury and the redressability of the injury. With its motion to
dismiss for lack of subject matter jurisdiction, the Government submitted the Second Patterson
Declaration, a piece of evidence that discloses information about the Mass Surveillance Program
beyond that contained in the original Patterson Declaration attached to HRW’s Complaint. See
Second Patterson Decl. In the new declaration, Patterson attests that when the use of the
database containing the telephone metadata was suspended in September 2013, the data was
quarantined. Id. ¶ 3. Further, prior to April 7, 2015, the date HRW filed this lawsuit, “the
database had been purged of the collected data, and the database no longer exists.” Id. Thus, the
Government has submitted evidence that HRW’s collected data is no longer being retained and
its requested injunctive relief as to this data has already been performed. If the Government is
no longer collecting, searching, using, or disseminating HRW’s call data, and it is also no longer
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 Case 2:15-cv-02573-PSG-JPR Document 38 Filed 08/14/15 Page 13 of 15 Page ID #:418

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-2573 PSG (JPRx)

Date

Title

Human Rights Watch v. Drug Enforcement Agency, et al.

August 14, 2015

retaining HRW’s call data, HRW is not suffering a Fourth Amendment injury capable of
supporting its claims for injunctive and declaratory relief.
HRW first attacks the impact of the Government’s new evidence, arguing that the Second
Patterson Declaration does not establish that HRW’s records have been purged from the
Government’s files because it only addresses the records contained in one database, and does not
state that HRW’s records were contained in that database. See Opp.16:8-17:5. Moreover, even
if that database were the only database or was the one that contained HRW’s records, HRW
contends that copies of HRW’s records or derivative material generated from the database prior
to its purging could exist elsewhere. Id. 17:6-19:7. The Court is not persuaded by these
speculative arguments. The Second Patterson Declaration directly responds to the only
plausible, specifically asserted injury in the Complaint – that the federal law enforcement
database identified in the Patterson Declaration as a repository of telephone metadata on calls
between the U.S. and drug-related foreign countries contains HRW call data, and that that
database still exists.2 Thus, the Second Patterson Declaration is an evidentiary showing that,
unrebutted, would destroy HRW’s standing and deprive the Court of jurisdiction to hear this
case. If HRW intends to rebut or undermine the showing, it must respond by “present[ing]
affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in
fact, possesses subject matter jurisdiction.” St. Clair, 880 F.2d at 201.
HRW was unable to offer evidence that the Government still retains its call records in
other forms or in other repositories in its opposition brief. HRW cites to various government
filings in the Hassanshahi case, the criminal case in which the Patterson Declaration was
originally filed, in an effort to expose “inconsistencies” in the way the Government discussed the
Program. See Opp. 20:3-21:10. The “inconsistencies” are inconsequential. Documents
suggesting that other agencies could access the DEA database or that the database was
sometimes referred to as a “database component” do not demonstrate that the Government made
copies of the subpoenaed call data or maintained the information in multiple databases, the
jurisdictional rebuttal fact that HRW intends to prove. Rumold Decl., Ex. 1-3; see also Reply
8:10-28. HRW also cites to online news articles from USA Today and The Intercept discussing
a governmental call data collection program, see Rumold Decl., Ex. 4-5, but these secondhand
news reports are not admissible evidence of the Government’s practices under the Mass
Surveillance Program and cannot “not raise a genuine dispute of material fact regarding
retention of metadata relating to Plaintiff.” See Reply 9:3-4.
2

Although the Complaint states that the information was retained and stored by the Government
in “one or more” databases, see Compl. ¶ 34, the Patterson Declaration consistently references a
single database, Patterson Decl. ¶¶ 1, 3-6, and the allegation that additional databases might
exist is conclusory and unsupported by any specific factual allegations.
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 Case 2:15-cv-02573-PSG-JPR Document 38 Filed 08/14/15 Page 14 of 15 Page ID #:419

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-2573 PSG (JPRx)

Date

Title

Human Rights Watch v. Drug Enforcement Agency, et al.

August 14, 2015

Instead, HRW’s primary response to the Government’s factual attack on standing is that
HRW should be afforded the opportunity to conduct discovery regarding the challenged issue of
retention of HRW’s call records, so that it can respond to the Government’s showing in the
Second Patterson Declaration with credible, admissible evidence. See Opp. 23:7-24:20; Pl.
Request ¶¶ 1-3. “[I]f it is possible that the plaintiff can demonstrate the requisite jurisdictional
facts if afforded th[e] opportunity” for jurisdictional discovery, “[d]iscovery is necessary.” St.
Clair, 880 F.2d at 201 (citation omitted); see also Gordon, 687 F. Supp. 2d at 940-41 (refraining
from ruling on whether plaintiffs faced the imminent threat of future injury in the form of
additional “raid-style” inspections at their barbershops “while the parties engage in jurisdictional
discovery related solely to whether it can be established that these raid-style inspections of local
barberships in Moreno Valley are part of some policy or program of the City, County, and/or the
Board”).
In HRW’s request for discovery and an evidentiary hearing, HRW seeks three forms of
discovery: (1) copies of subpoenas issued to telecommunications carriers; (2) names of
government agencies that have accessed records through the Program; and (3) a deposition of
Patterson. See Pl. Request ¶ 3. Only the third discovery request directly targets information that
could undermine the Government’s evidentiary showing that HRW’s collected records have
been purged. The Court agrees that some limited discovery directed toward the Government is
warranted because such discovery could possibly provide HRW with jurisdictional evidence
suggesting that the Government still possesses HRW’s call records in some form. Accordingly,
the Court will allow HRW the opportunity to conduct limited discovery on this issue.
However, a deposition of Patterson is not the most narrowly tailored mechanism to
uncover the whether the Government continues to retain HRW’s call records. Instead, the Court
will allow HRW to serve a limited number of interrogatories on the Government. Moreover, the
scope of issues that HRW identifies in its request for jurisdictional discovery is overly broad.
The Court limits the interrogatory topics to the following issues: (1) whether the Government
retains call records in repositories other than the purged database; and (2) whether the
Government retains Program call records in derivative forms. Accordingly, the Court orders that
HRW is permitted to serve no more than five interrogatories on the Government regarding these
two issues.
IV.

Conclusion

For the foregoing reasons, the Court HOLDS IN ABEYANCE ruling on the
Government’s motion to dismiss for lack of subject matter jurisdiction and GRANTS IN PART
HRW’s request for discovery. The Court orders that HWR may serve no more than five
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 Case 2:15-cv-02573-PSG-JPR Document 38 Filed 08/14/15 Page 15 of 15 Page ID #:420

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-2573 PSG (JPRx)

Date

Title

Human Rights Watch v. Drug Enforcement Agency, et al.

August 14, 2015

interrogatories on the Government. The timing of this limited discovery shall proceed as
follows:
Deadline for HRW to serve interrogatories:

September 11, 2015

Deadline for the Government’s responses:

October 13, 2015

Deadline for HRW’s supplemental briefing:

November 9, 2015

Deadline for the Government’s response briefing:3

November 23, 2015

HRW’s request for discovery is otherwise denied. The Court will not rule on HRW’s request for
an evidentiary hearing at this point. After reviewing the evidence and arguments submitted to
the Court in the supplemental and response briefing, the Court will determine whether an
evidentiary hearing is necessary.
IT IS SO ORDERED.

3

Each additional brief cannot exceed ten (10) pages in length and must be formatted in
accordance with the Local Rules.
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