NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 19-1366
________________
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 OF AMERICA;
DIRECTOR OF NATIONAL INTELLIGENCE;
DIRECTOR OF THE NATIONAL SECURITY AGENCY AND
CHIEF OF THE CENTRAL SECURITY SERVICE;
DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION
________________
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 2-14-cv-00705)
District Judge: Honorable Cathy Bissoon
________________
Argued September 23, 2019
Before: McKEE, AMBRO, and ROTH, Circuit Judges
(Opinion filed: March 2, 2020)
Elliott J. Schuchardt (Argued)
6223 Highland Place Way
Suite 201
Knoxville, TN 37919
Counsel for Appellant
Joseph H. Hunt
Assistant Attorney General
Scott W. Brady
United States Attorney
Joseph F. Busa (Argued)
H. Thomas Byron III
United States Department of Justice
Civil Division, Appellate Staff 7537
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Counsel for Appellees
________________
OPINION*
________________
AMBRO, Circuit Judge
Elliott J. Schuchardt alleges that the bulk data collection programs of the National
Security Agency (“NSA”) under the Foreign Intelligence Surveillance Act (“FISA”), 50
U.S.C. § 1801 et seq., violate the Fourth Amendment because they allow the Government
to intercept, access, monitor, and store all or substantially all U.S. domestic e-mail
without probable cause. Pl.’s App. 138–67. He filed suit in 2014 against the President of
the United States, the Director of National Intelligence, the Director of the NSA, and the
Director of the Federal Bureau of Investigation (“FBI”). After the District Court
dismissed Schuchardt’s suit for lack of facial standing under Federal Rule of Civil
Procedure 12(b)(1), we reversed. See Schuchardt v. President of the U.S. (“Schuchardt
I”), 839 F.3d 336 (3d Cir. 2016).
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2
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. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). However, if 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)).
On remand, the District Court held that Schuchardt failed to rebut the evidence the
Government submitted to challenge his factual standing. We agree and thus affirm the
District Court’s ruling.
A. Procedural Background
Schuchardt specifically alleged that the NSA operates a program known as PRISM
through which it collects “massive quantities of e-mail and other data created by [U.S.]
citizens” “directly from the servers” of U.S. service providers like Google, Microsoft,
Yahoo, Facebook, Dropbox, and Apple. Pl.’s App. 145. As “a consumer of various
types of electronic communication, storage, and [I]nternet-search services” of those
service providers, id. at 156, Schuchardt further asserted that the Government “obtained
direct access to the servers” of the providers and was “intercepting, accessing, monitoring
and/or storing [his] private communications . . . .” Id. at 145, 156, 158.1
1
The Government argues that this case is about PRISM and not other programs.
Gov’t Br. 27–31. That question was never squarely before the District Court. Nor is it
before us. The Government did not argue on remand that Schuchardt was not permitted
to submit non-PRISM evidence, and in fact itself submitted evidence that goes beyond
3
Schuchardt supplemented his complaint with two categories of exhibits. First, he
submitted reports from the Washington Post and Guardian newspapers about classified
documents leaked by former NSA contractor Edward Snowden, as well as excerpts of the
materials themselves. These exhibits refer to an NSA program engaged in the bulk
collection of domestic e-mail metadata. Id. at 91–131. Several of the documents appear
to be internal NSA slides. One is titled “Dates When PRISM Collection Began For Each
Provider,” and lists dates when several service providers began collection. Another slide,
“New Collection Posture,” includes slogans such as “Exploit it All.” Id. at 109–10.
The second category of documents Schuchardt attached contained affidavits filed
in support of the plaintiffs in Jewel v. NSA, 965 F. Supp. 2d 1090 (N.D. Cal. 2013), a
separate case challenging the NSA’s interception of internet traffic. Id. at 1098. The
affidavits were of former NSA employees William E. Binney, Thomas A. Drake, and J.
Kirk Wiebe, who asserted that after September 11, 2001, the agency developed an
expansive view of its own surveillance authority. Pl.’s App. 186–219. Binney stated that
he was the creator of the technology the Government uses today to conduct large-scale
data collection, and that members of his team told him the Government implemented
intelligence activities after September 11 known as the President’s Surveillance Program
that involved the collection of domestic e-mails without the privacy protections built into
other NSA programs. Id. at 187–88.
PRISM. See Gov’t’s Add. A; Gov’t’s Add. B. Schuchardt correctly points out that his
complaint is broad enough to include programs beyond PRISM. Schuchardt Reply 12.
4
The District Court dismissed in 2015 Schuchardt’s complaint for lack of standing.
A Rule 12(b)(1) motion under the Federal Rules of Civil Procedure to dismiss for lack of
subject matter jurisdiction may be treated as either a facial or factual challenge. See
Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977).
The District Court concluded, for facial challenge purposes, that Schuchardt had
“identified no facts from which [it] reasonably might infer that [the plaintiff’s] own
communications have been targeted, seized or stored.” Pl.’s App. 14–24. As noted, we
reversed in 2016 and concluded that his allegations “plausibly stated an injury in fact
personal to” him “as a facial matter.” Schuchardt I, 839 F.3d at 338. Thus we
considered the exhibits Schuchardt submitted and afforded his pleadings the presumption
of truth. Though the Government disputed Schuchardt’s allegations and submitted
evidence, we could not, on a facial attack, consider its submissions. Id. at 346, 352–53.
Finally, we noted that the Government was “free upon remand to make a factual
jurisdictional challenge to Schuchardt’s pleading.” Id. at 353.
On remand, the parties agreed that, rather than engage in discovery as to
jurisdiction, the Government would make an informal information disclosure; if
Schuchardt was not satisfied, he could resume the litigation. The District Court directed
Schuchardt to inform it “whether or not this case w[ould] be dismissed based on the
information provided . . . .” Pl.’s App. 10. Thereafter, Schuchardt did not make any
discovery or extension requests. The Government filed a renewed motion to dismiss, and
Schuchardt filed a response relying on new affidavits from Binney and Wiebe. Id. at 63–
5
66. Schuchardt conceded at oral argument that he did not make any discovery or
extension requests nor ask for a hearing to qualify Binney and Wiebe as experts.
The District Court issued an order in February 2019 dismissing Schuchardt’s case
for lack of standing on a factual challenge. Pl.’s App. 63. It concluded that the
Government showed that it “did not engage in dragnet-type collection activity,” and in
support of that conclusion it incorporated “by reference, as if fully restated, the evidence
and arguments recited in [the Government’s] opening and reply briefs.” Id. at 64.
Moreover, the documents Schuchardt submitted were inadmissible and did not create a
factual dispute as to his standing. The Court went on to state that, “[e]ven permitting all
of [Schuchardt’s] evidence—which . . . [was] restricted to the recent affidavits of []
Binney and Wiebe,” and the documents attached thereto, the Government’s “positions
carry the day.” Id. at 64–65. Schuchardt’s “post remand efforts” were “underwhelming”
and merely amounted to taking the same evidence previously before the District Court
and “filter[ing] it through the mouthpiece of purported experts.” Id. at 65.2
B. Jurisdiction and Standard of Review
The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction
per 28 U.S.C. § 1291. “When reviewing an order dismissing a claim for lack of subject
matter jurisdiction, we exercise plenary review over legal conclusions and review
findings of fact for clear error.” Adorers of the Blood of Christ v. Fed. Energy Reg.
2
Because it incorporated the Government’s briefs in their entirety, we discuss the
evidence and arguments therein as the Court’s own decision. We nonetheless note that
the wholesale adoption of one side’s briefs is a practice we discourage. See In re
Complaint of Luhr Bros., Inc., 157 F.3d 333, 338 (5th Cir. 1998); Walton v. United
Consumers Club, Inc., 786 F.2d 303, 313–14 (7th Cir. 1986).
6
Comm’n, 897 F.3d 187, 193 (3d Cir. 2018) (citation omitted). We review the District
Court’s evidentiary findings for abuse of discretion. “In order to justify reversal, a
district court’s analysis and resulting conclusion must be arbitrary or irrational.” United
States v. Bailey, 840 F.3d 99, 117 (3d Cir. 2016) (citation and quotation marks omitted).3
C. Rule 12(b)(1) Factual Challenge
On a Rule 12(b)(1) factual challenge, the plaintiff has the burden of proof,
Mortensen, 549 F.2d at 891, and the burden of persuasion, Gould Elecs Inc., 220 F.3d at
178. Thus “a 12(b)(1) factual challenge strips the plaintiff of the protections and factual
deference provided under 12(b)(6) review” for a typical motion to dismiss on the merits,
Hartig Drug Co. Inc. v. Senju Pharm. Co. Ltd., 836 F.3d 261, 268 (3d Cir. 2016)
(emphasis added) (citation omitted), and under facial 12(b)(1) review, see CNA v. United
States, 535 F.3d 132, 139 (3d Cir. 2008).
It is true that a “[j]urisdictional finding of genuinely disputed facts is inappropriate
when the jurisdictional issue and substantive issues are so intertwined that the question of
jurisdiction is dependent on the resolution of factual issues going to the merits of an
action.” Davis v. Wells Fargo, 824 F.3d 333, 348 (3d Cir. 2016) (citation omitted).
When a case raises a disputed factual issue that goes both to the merits and jurisdiction,
3
Schuchardt devoted much of his brief to the merits of this case. Schuchardt Br.
43–55. The District Court did not reach the merits, as it dismissed on a Rule 12(b)(1)
motion. Accordingly, we do not consider his arguments as to the merits. Schuchardt also
cited for the first time in his opening brief to non-record evidence (for example, a
statement by a government scientist) that every e-mail sent in the United States goes into
a Government database. Schuchardt Br. 22, 38. With rare exceptions not in play here,
we will not consider evidence outside the record. See Reed v. Phila. Bethlehem & New
England R.R. Co., 939 F.2d 128, 133 (3rd Cir. 1991).
7
district courts must “demand less in the way of jurisdictional proof than would be
appropriate at a trial stage.” Mortensen, 549 F.2d at 892. Although we have not defined
the contours of the “less in the way of jurisdictional proof” standard, we have held that
“[b]ecause at issue in a factual 12(b)(1) motion is the trial court’s jurisdiction[,] its very
power to hear the case[,] there is substantial authority that the trial court is free to weigh
the evidence and satisfy itself as to the existence of its power to hear the case.” Id. at
891. “The form of the inquiry is flexible . . . : ‘As there is no statutory direction for
procedure upon an issue of jurisdiction, the mode of its determination is left to the trial
court.’” Id. at 891 n.16 (quoting Gibbs v. Buck, 307 U.S. 66, 71–72 (1939)).
This is not a case where Schuchardt presented competent evidence that the District
Court discounted or where it weighed competing evidence presented by the Government
and Schuchardt.4 The Court considered the evidence the Government submitted to
challenge Schuchardt’s standing, stated that the burden of proof was on Schuchardt, gave
him an opportunity to be heard, and considered his submissions in detail. On this record,
the Court held that he did not create a dispute of material fact as to his standing. See
CNA, 535 F.3d at 144–46 (affirming dismissal where plaintiffs were heard on the
jurisdictional issue but failed to present evidence creating a factual dispute as to subject
matter jurisdiction). It did not err by considering the admissibility of Schuchardt’s
submission, as required expressly by some Circuits. See McPhail v. Deere & Co., 529
4
This is also not a case where the Government refused to turn over discovery
related to its intelligence-gathering activities. Schuchardt made no discovery requests,
and the Court did not rule on any applicable national security privileges.
8
F.3d 947, 954 (10th Cir. 2008); Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 540,
542 (7th Cir. 2006).
D. The District Court’s Evidentiary Rulings
Thus we turn to the evidentiary rulings of the District Court. It held that the
documents Schuchardt submitted on remand were unauthenticated and contained hearsay,
and that Binney and Wiebe’s opinions did not meet the reliability requirements for
admission of expert testimony. Gov’t’s Add. A 8–9, 25–26; Gov’t’s Add. B 6–7.5 The
Court considered Schuchardt’s lack of evidence in light of the Government’s admissible
submission and concluded that Schuchardt failed to meet his burden of proof.
1. Schuchardt Presented Unauthenticated Documents.
A party seeking to rely on a piece of evidence must offer proof sufficient to
support a finding that the item is what that party claims it to be. Fed. R. Evid. 901(a);
United States v. Browne, 834 F.3d 403, 408 (3d Cir. 2016). That evidence “must itself be
admissible.” In re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238, 285 (3d Cir.
1983). As for the purported NSA slides, Pl.’s App. 108–13, Schuchardt did not explain
what they were, other than describing them as the “Snowden documents,” Gov’t’s Add.
A 8–9, 25–26. The District Court could only speculate about what they were. The origin
and nature of the new documents attached to Binney’s affidavit on remand were equally
dubious. The new documents included maps showing “tap points” where the NSA
5
The Government inaccurately argues that Schuchardt’s opening brief failed to
address the evidentiary holdings. Gov’t Br. 23. Schuchardt did argue, if summarily, that
the Court understated Binney’s expertise and that he could have authenticated the
documents. Schuchardt Br. 30–33.
9
connects into service providers’ networks and slides explaining collection. Pl.’s App.
244–47. Schuchardt argues that Binney and Wiebe authenticated the documents in their
affidavits, Schuchardt Reply 6, because those documents related to programs they created
and worked on, Pl.’s App. 231, and because Binney obtained them from publications,
which in turn allegedly got the documents from Snowden, id. at 232. The Court correctly
rejected this argument because Binney claimed no personal knowledge that the
documents he obtained from the publications were those allegedly misappropriated by
Snowden. Gov’t’s Add. B 6–7. Neither Binney nor Wiebe claimed he created the
documents or to know who did.
Schuchardt’s argument that the Snowden documents were authenticated by the
Government’s admissions that Snowden misappropriated documents also fails. Any
general admissions by Government officials that Snowden stole documents did not
authenticate the specific documents Schuchardt submitted to the Court. See ACLU v.
U.S. Dep’t of State, 878 F. Supp. 2d 215, 224 (D.D.C. 2012). Hence there was no abuse
of discretion in ruling that those documents were not properly authenticated.
2. Schuchardt Presented Evidence Based on Hearsay.
Hearsay is any statement, other than one made by a declarant while testifying at
the trial or hearing, “offer[ed] in evidence to prove the truth of the matter asserted.” Fed.
R. Evid. 801. It is generally inadmissible as evidence. See United States v. Pelullo, 964
F.2d 193, 203 (3d Cir. 1992). The District Court concluded that the NSA slides
“constitute written out-of-court statements regarding PRISM’s operation that
[Schuchardt] offers for the truth of the matters asserted,” and are inadmissible hearsay.
10
Gov’t’s Add. A 26. It reached the same conclusion regarding the new documents
attached to Binney’s affidavit because Binney claimed no personal knowledge of the
documents and obtained them from journalists, who allegedly obtained them from
Snowden, so that “[e]ach link in this chain of custody is . . . predicated on . . . hearsay.”
Gov’t’s Add. B 6–7. As for the newspaper articles and editorials, the Court held that they
too were hearsay. Schuchardt offered no substantial argument why these materials were
subject to a hearsay exception. We accordingly affirm the District Court in barring them.
3. Schuchardt Failed to Qualify His Expert Witnesses.
Federal Rule of Evidence 702 governs the use of expert testimony in federal courts
and imposes three threshold considerations: qualifications, reliability, and fit. See In re
Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741–43 (3d Cir. 1994). An expert witness must
have specialized expertise or knowledge. See id. at 741. Though we construe the
specialized knowledge requirement liberally, “at a minimum, a proffered expert witness
. . . must possess skill or knowledge greater than the average layman . . . .” Waldorf v.
Shuta, 142 F.3d 601, 625 (3d Cir. 1998). District courts perform a screening function,
typically called a Daubert hearing, to ensure that evidence presented is, among other
things, reliable. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993). It
is so if “based on the ‘methods and procedures of science’ rather than on ‘subjective
belief or unsupported speculation . . . .’” Paoli, 35 F.3d at 742 (citation omitted). Rule
703 permits experts to rely on hearsay so long as it is of the kind normally employed by
experts in the field. See In re TMI Litig., 193 F.3d 613, 697 (3d Cir. 1999). However,
11
the trial judge must conduct an independent evaluation of the reasonableness of relying
on the type of data underlying the opinion. See Paoli, 35 F.3d at 748.
Binney stated in his affidavit that he “was the primary designer and developer of a
number of programs designed to acquire and analyze very large amounts” of information
from the “Internet” before leaving the NSA in 2001. Pl.’s App. 228–29. He continues to
serve as a consultant to foreign governments on intelligence collection and has testified
before foreign government agencies. Id. at 240. According to Binney, after the
September 11 attacks the NSA’s surveillance program changed to allow indiscriminate
bulk data collection, and the President’s Surveillance Program thereafter involved the
“collection of the full content of domestic e-mail traffic.” Id. at 230. Binney based his
conclusions on “the highly-detailed information contained in the documents leaked by
[Snowden].” Id. at 231. Binney stated that “[t]he documents provided by Mr. Snowden
are the type of data that experts in the intelligence community would typically and
reasonably rely upon . . . .” Id. at 232. Wiebe submitted a two-page affidavit agreeing
with Binney’s assessment based on his review of the same documents. Id. at 249–54.
The District Court concluded that Binney and Wiebe were not qualified to testify
as experts. Neither identified or described the field of “scientific, technical, or other
specialized knowledge” in which he is purportedly an expert. Gov’t Add. B 9. Wiebe
did not discuss the exhibits at all in his affidavit, and Binney did not explain how the
exhibits led him to reach his conclusions. Id. at 9–10. The Court therefore could not
determine whether their conclusions were based on reliable principles and methods. It
also discounted Schuchardt’s argument that the affidavits were admissible under Rule
12
703 based on Binney’s assertion that the Snowden documents are the “type of data that
experts in the intelligence community would typically and reasonably rely upon.” Id. at
10 n.7.6 That assertion provided no basis for the Court to conduct an independent
evaluation into reasonableness. Id. Moreover, Schuchardt did not request a Daubert
hearing or submit evidence regarding Binney and Wiebe’s field of expertise or their
methodologies. Accordingly, the Court did not abuse its discretion in barring their
testimony as experts.
4. The Government’s Evidence
Contrast Schuchardt’s lack of competent evidence against the admissible
submissions by the Government. These included a sworn declaration from Wayne
Murphy, the Director of Operations at the NSA, who was “responsible for . . . managing
the integration and use of the NSA’s global foreign intelligence authorities” and had
“personal knowledge” of the matters alleged in Schuchardt’s complaint. Pl.’s App. 173.
He stated that “[n]either PRISM nor any other NSA intelligence-gathering activity
involves the bulk collection (or storage) of all or substantially all of the e-mail (or other
Internet-based communications) of all U.S. persons.” Id. The District Court credited
those statements and reasoned that Schuchardt could not show that his communications
would have been targeted and collected. Gov’t Add. A 22. The Government also cited
other authorities, such as the Report on the Surveillance Program Operated Pursuant to
Section 702 of the Foreign Intelligence Surveillance Act issued in July 2014 by the
6
The District Court also separately ruled, and we affirm, that Binney and Wiebe
could not testify as fact witnesses because they did not claim any personal knowledge of
the NSA’s current collection programs. Gov’t’s Add. A 29–31.
13
Privacy and Civil Liberties Oversight Board, as well as case law from other Circuits,
acknowledging the targeted nature of PRISM, see, e.g., United States v. Mohamud, 843
F.3d 420, 440 (9th Cir. 2016).
* * * * *
Because the District Court did not abuse its discretion in concluding that
Schuchardt’s evidence was inadmissible and that the Government’s evidence stood
uncontroverted, we affirm its ruling that Schuchardt lacked factual standing for his suit.
14