FOR PUBLICATION
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`CAROLYN JEWEL; TASH HEPTING;
`GREGORY HICKS; ERIK KNUTZEN;
`JOICE WALTON, on behalf of
`themselves and all others similarly
`situated,
`
`Plaintiffs-Appellants,
`v.
`NATIONAL SECURITY AGENCY; KEITH
`B. ALEXANDER, Director, in his
`official and personal capacities;
`MICHAEL V. HAYDEN, in his
`personal capacity; UNITED
`STATES OF AMERICA; GEORGE W.
`BUSH, President of the United
`States, in his official and personal
`capacities; RICHARD B. CHENEY, in
`his personal capacity; DAVID S.
`ADDINGTON, in his personal
`capacity; DEPARTMENT OF JUSTICE;
`ALBERTO R. GONZALES, in his
`personal capacity; JOHN D.
`ASHCROFT, in his personal
`capacity; JOHN M. MCCONNELL,
`Director of National Intelligence,
`in his official and personal
`capacities; JOHN D. NEGROPONTE in
`his personal capacity; MICHAEL B.
`MUKASEY, Attorney General;
`BARACK HUSSEIN OBAMA;
`
`21601
`
`(cid:252)
`(cid:253)
`(cid:254)
`

`
`21602
`
`JEWEL v. NATIONAL SECURITY AGENCY
`
`
`
`ERIC H. HOLDER JR., Attorney
`General; DENNIS C. BLAIR,
`Defendants-Appellees,
`
`
`
`VIRGINIA SHUBERT; NOHA ARAFA;
`SARAH DRANOFF; HILARY BOTEIN,
`individually and on behalf of all
`others similarly situated,
`Plaintiffs-Appellants,
`v.
`GEORGE W. BUSH; MICHAEL V.
`HAYDEN; KEITH B. ALEXANDER;
`ALBERTO R. GONZALES; JOHN
`ASHCROFT; UNITED STATES OF
`AMERICA,
`
`Defendants-Appellees.
`
`No. 10-15616
`D.C. Nos.
`3:08-cv-04373-
`VRW
`M:06-cv-01791-
`VRW
`
`No. 10-15638
`D.C. Nos.
`3:07-cv-00693-
`VRW
`M:06-cv-01791-
`VRW
`OPINION
`
`Appeal from the United States District Court
`for the Northern District of California
`Vaughn R. Walker, District Judge, Presiding
`
`Argued and Submitted
`August 31, 2011—Seattle, Washington
`
`Filed December 29, 2011
`
`Before: Harry Pregerson, Michael Daly Hawkins, and
`M. Margaret McKeown, Circuit Judges.
`
`Opinion by Judge McKeown
`
`(cid:252)
`(cid:253)
`(cid:254)
`(cid:252)
`(cid:253)
`(cid:254)
`

`
`JEWEL v. NATIONAL SECURITY AGENCY
`
`21605
`
`COUNSEL
`
`Cindy Cohn, Lee Tien, Kurt Opsahl, Kevin S. Bankston,
`James S. Tyre, ELECTRONIC FRONTIER FOUNDATION,
`
`

`
`21606
`
`JEWEL v. NATIONAL SECURITY AGENCY
`
`San Francisco, California, for the plaintiff-appellant; Rachael
`E. Meny, Paula L. Blizzard, Michael S. Kwun, Audrey
`Walton-Hadlock, KEKER & VAN NEST LLP, for the
`plaintiff-appellant [ 10-15616 ].
`
`Matthew D. Brinckerhoff, Ilann Margalit Maazel, Adam R.
`Pulver, EMERY CELLI BRINCKERHOFF & ABADY LLP,
`New York, New York, for the plaintiff-appellant. [ 10-
`15638 ].
`
`H. Thomas Byron, III, DOJ – U.S. Department of Justice,
`Washington, District of Columbia, for the defendant-appellee.
`[ 10-15616 and 10-15638 ].
`
`OPINION
`
`McKEOWN, Circuit Judge:
`
`This case is one of many arising from claims that the fed-
`eral government, with the assistance of major telecommunica-
`tions companies, engaged
`in widespread warrantless
`eavesdropping in the United States following the September
`11, 2001, attacks. At issue in this appeal is whether Carolyn
`Jewel and other residential telephone customers (collectively
`“Jewel”) have standing to bring their statutory and constitu-
`tional claims against the government for what they describe
`as a communications dragnet of ordinary American citizens.
`
`In light of detailed allegations and claims of harm linking
`Jewel to the intercepted telephone, internet and electronic
`communications, we conclude that Jewel’s claims are not
`abstract, generalized grievances and instead meet the constitu-
`tional standing requirement of concrete injury. Nor do pru-
`dential considerations bar this action. Although there has been
`considerable debate and legislative activity surrounding the
`surveillance program, the claims do not raise a political ques-
`
`

`
`JEWEL v. NATIONAL SECURITY AGENCY
`
`21607
`
`tion nor are they inappropriate for judicial resolution. Finally,
`we do not impose, as suggested by the government, a height-
`ened standing requirement simply because the case involves
`government officials in the national security context. We
`reverse the district court’s dismissal on standing grounds and
`remand for further proceedings. We leave for the district court
`to consider in the first instance the government’s alternative
`argument that Jewel’s claims are foreclosed by the state
`secrets privilege.
`
`BACKGROUND
`
`I. COMPLAINT
`
`Jewel filed this putative class action “on behalf of [herself]
`and a class of similarly situated persons”: “ordinary Ameri-
`cans who are current or former subscribers to AT&T’s tele-
`phone and/or Internet services.” At this stage, our inquiry
`focuses on Jewel and the allegations as they pertain to her.
`Stearns v. Ticketmaster Corp., 655 F.3d 1013, 1021 (9th Cir.
`2011). Jewel sued federal government agencies and govern-
`ment officers in their official and personal capacities. She did
`not name any telecommunications companies as defendants.1
`Jewel alleged that the “[c]ommunications of Plaintiffs and
`class members have been and continue to be illegally acquired
`by Defendants using surveillance devices attached to AT&T’s
`network.” She claimed that these actions violated the First and
`Fourth Amendments, the constitutional doctrine of separation
`of powers, and a variety of statutes—the Foreign Intelligence
`Surveillance Act (“FISA”), 50 U.S.C. §§ 1801 et seq., the
`Electronic Communications Privacy Act (“ECPA”), 18 U.S.C.
`§§ 2510 et seq., the Stored Communications Act (“SCA”), 18
`U.S.C. §§ 2710 et seq., and the Administrative Procedure Act
`(“APA”), 5 U.S.C. §§ 701 et seq. The complaint requested
`both equitable and monetary relief.
`
`1A number of the other multidistrict litigation (“MDL”) suits name one
`or more of the telecommunications companies as defendants. See, e.g.,
`Hepting v. AT&T, No. 09-16676 (9th Cir. Dec. 29, 2011).
`
`

`
`21608
`
`JEWEL v. NATIONAL SECURITY AGENCY
`
`According to the complaint, on October 4, 2001, President
`Bush and other government defendants issued a secret presi-
`dential order that authorized warrantless surveillance within
`the United States. Jewel asserted that she was specifically
`affected because AT&T, in collaboration with the National
`Security Agency (“NSA”), diverted all of her internet traffic
`into “SG3 Secure Rooms” in AT&T facilities across the coun-
`try, including AT&T’s Folsom Street facility in San Fran-
`cisco, “and information of interest [was] transmitted from the
`equipment in the SG3 Secure Rooms to the NSA based on
`rules programmed by the NSA.” Jewel’s complaint focused
`on AT&T, its San Francisco facility, and the SG3 Secure
`Rooms.
`
`Jewel further alleged that the governmental defendants
`operated a “dragnet collection” of communications records by
`“continuously solicit[ing] and obtain[ing] the disclosure of all
`information in AT&T’s major databases of stored telephone
`and Internet records.” These records “concern[ ] communica-
`tions to which Plaintiffs and class members were a party.” For
`example, Jewel claims that,
`
`[u]sing [a] shadow network of surveillance devices,
`Defendants have acquired and continue to acquire
`the content of a significant portion of phone calls,
`emails, instant messages, text messages, web com-
`munications and other communications, both inter-
`national and domestic, of practically every American
`who uses the phone system or the Internet, including
`Plaintiffs and class members, in an unprecedented
`suspicionless general search through the nation’s
`communications network.
`
`The complaint goes on to allege that defendants were directly
`involved in the schemes, which were “directly performed,
`and/or aided, abetted, counseled, commanded, induced, or
`procured, by Defendants.”
`
`

`
`JEWEL v. NATIONAL SECURITY AGENCY
`II. THE DISTRICT COURT’S DECISION
`
`21609
`
`The government defendants moved to dismiss and alterna-
`tively sought summary judgment as to all claims. They argued
`that the court lacked jurisdiction over Jewel’s statutory claims
`because the government did not waive its sovereign immu-
`nity. The government sought summary judgment on the
`remaining claims “because information necessary to litigate
`plaintiffs’ claims is properly subject to and excluded from use
`in the case by the state secrets privilege and related statutory
`privileges.” Although not argued by the government or
`briefed by the parties, the district court granted the motion to
`dismiss because Jewel lacked standing to bring her claims.2
`The district court dismissed the claims with prejudice and
`without leave to amend.3
`
`2The district court dismissed Jewel’s action together with a similar
`action filed by Virginia Shubert. Shubert’s action was consolidated with
`other wiretapping cases in August 2006 in the Northern District of Califor-
`nia under the MDL provisions of 28 U.S.C. § 1407. Jewel’s case was orig-
`inally filed in the Northern District of California, but was not part of the
`MDL consolidation. The procedural histories of the Jewel and Shubert
`actions are not identical, but the district court considered the cases
`together for purposes of standing.
`3The allegations in the Shubert complaint diverge significantly from
`those in the Jewel complaint, primarily because of their lack of specificity.
`These deficiencies might well have been ameliorated through an amended
`complaint. However, the district court sua sponte dismissed the complaint
`on standing grounds, without leave to amend. Although the district court
`properly considered standing of its own accord, this dismissal was prob-
`lematic “because [plaintiffs] only learned that the district court would not
`allow them an opportunity to remedy any perceived defects in the com-
`plaint after . . . the district court summarily signed and entered [its order
`of dismissal].” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d
`1025, 1034 (9th Cir. 2008). The district court erred in denying Shubert
`leave to amend. “Dismissal without leave to amend is improper unless it
`is clear, upon de novo review, that the complaint could not be saved by
`any amendment.” Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc.,
`368 F.3d 1053, 1061 (9th Cir. 2004).
`
`

`
`21610
`
`JEWEL v. NATIONAL SECURITY AGENCY
`
`The district court carefully reviewed the complicated pro-
`cedural history, both of the MDL wiretapping cases generally
`and the motions at issue in this case specifically. The district
`court held that Jewel failed to make out prima facie allega-
`tions necessary to establish that she was an “aggrieved per-
`son” under the FISA. The court acknowledged that Jewel’s
`complaint included specific allegations that the NSA used
`AT&T’s Folsom Street facility, but found that “[the] com-
`plaint contains no other allegations specifically linking any of
`the plaintiffs to the alleged surveillance activities,” and there-
`fore held that Jewel lacked standing. We disagree.
`
`ANALYSIS
`
`The central issue on appeal is whether Jewel has standing
`to sue the government defendants, a question of law that we
`review de novo. Bernhardt v. Cnty. of Los Angeles, 279 F.3d
`862, 867 (9th Cir. 2002). “Because the district court sua
`sponte dismissed [the] complaint on its face,” we “review . . .
`standing as if raised in a motion to dismiss. When reviewing
`motions to dismiss, [the court] must accept all factual allega-
`tions of the complaint as true and draw all reasonable infer-
`ences in favor of the nonmoving party.” Id. (internal quotation
`marks and citation omitted). General factual allegations of
`injury resulting from the defendant’s conduct may suffice, as
`we “presum[e] that general allegations embrace those specific
`facts that are necessary to support the claim.” Lujan v. Nat’l
`Wildlife Fed. (“Nat’l Wildlife Fed.”), 497 U.S. 871, 889
`(1990). Because this appeal arises from dismissal under Fed-
`eral Rule of Civil Procedure 12(b)(6), Jewel’s allegations are
`accepted as true.4
`
`4At the motion to dismiss stage, we do not consider the merits of
`Jewel’s claims. For example, the district court’s determination that Jewel
`was not an “Aggrieved Person” under the FISA or a qualified plaintiff
`under the other statutes is a merits determination, not a threshold standing
`question. Statutory “standing, unlike constitutional standing, is not juris-
`dictional.” Noel v. Hall, 568 F.3d 743, 748 (9th Cir. 2009). The question
`
`

`
`JEWEL v. NATIONAL SECURITY AGENCY
`I. PRINCIPLES OF STANDING
`
`21611
`
`[1] Standing doctrine is well established: “Article III . . .
`gives the federal courts jurisdiction over only ‘cases and con-
`troversies.”’ Whitmore v. Arkansas, 495 U.S. 149, 154-55
`(1990). The oft-cited Lujan v. Defenders of Wildlife (“Lujan”)
`restates the three requirements that must be met for Article III
`standing: (1) an injury in fact that (2) is fairly traceable to the
`challenged conduct and (3) has some likelihood of redressa-
`bility. 504 U.S. 555, 560-61 (1992). Here, the district court
`determined that this action was “in essence [a] citizen sui[t]
`seeking to employ judicial remedies to punish and bring to
`heel high-level government officials,” and that “neither group
`of plaintiffs/purported class representatives has alleged an
`injury that is sufficiently particular to those plaintiffs or to a
`distinct group.” The district court’s decision was based
`entirely on the first prong of Lujan. Although that requirement
`is the focus of our analysis, our de novo review also considers
`the other two prongs.
`
`[2] “[T]he standing question in [this] case is whether the
`constitutional or statutory provision on which the claim rests
`properly can be understood as granting persons in the plain-
`tiff’s position a right to judicial relief.” Warth v. Seldin, 422
`U.S. 490, 500 (1975). The answer here is yes.
`
`
`
`whether a plaintiff states a claim for relief typically relates to the merits
`of a case, not to the dispute’s justiciability, and conflation of the two con-
`cepts often causes confusion. See Bond v. United States, 131 S. Ct. 2355,
`2362 (2011); see also Steel Co. v. Citizens for Better Env’t., 523 U.S. 83,
`89 (1998) (“It is firmly established in our cases that the absence of a valid
`(as opposed to arguable) cause of action does not implicate subject-matter
`jurisdiction, i.e., the courts’ statutory or constitutional power to adjudicate
`the case.” (emphasis in original)).
`
`

`
`21612
`JEWEL v. NATIONAL SECURITY AGENCY
`II. JEWEL HAS CONSTITUTIONAL STANDING TO SUE
`
`A. JEWEL ALLEGED CONCRETE AND
`PARTICULARIZED INJURY
`
`To satisfy the “injury in fact” requirement, Jewel must
`assert a grievance that is both “concrete and particularized.”
`Lujan, 504 U.S. at 560 (citations omitted). We consider each
`of these requirements in turn, and conclude that Jewel has sat-
`isfied them both.
`
`[3] As to Jewel’s statutory claims, the Supreme Court
`instructs that a concrete “injury required by Art. III may exist
`solely by virtue of statutes creating legal rights, the invasion
`of which creates standing.” Lujan, 504 U.S. at 578 (internal
`quotation marks, citation, and alteration omitted). Jewel
`asserts claims under three surveillance statutes—the ECPA,
`FISA and SCA—and adds an umbrella claim under the APA.
`
`[4] Both the ECPA and the FISA prohibit electronic inter-
`ception of communications absent compliance with statutory
`procedures. The SCA likewise prohibits the government from
`obtaining certain communication records. Each statute explic-
`itly creates a private right of action for claims of illegal sur-
`veillance. See 18 U.S.C. § 2520 (the ECPA provides a cause
`of action to “any person whose . . . communication is inter-
`cepted, disclosed, or intentionally used”); 50 U.S.C. § 1801(k)
`(the FISA provides that “[a]n aggrieved person . . . who has
`been subjected to an electronic surveillance or about whom
`information obtained by electronic surveillance of such per-
`son has been disclosed or used in violation of section 1809 of
`this title shall have a cause of action against any person who
`committed such violation”); 18 U.S.C. § 2707(a) (the SCA
`provides that “any provider of electronic communication ser-
`vice, subscriber, or other person aggrieved by any violation of
`this chapter” may maintain a civil action if the violation was
`done knowingly or intentionally).
`
`

`
`JEWEL v. NATIONAL SECURITY AGENCY
`21613
`[5] In a similar vein, with respect to her constitutional
`claim, Jewel alleges a concrete claim of invasion of a personal
`constitutional right—the First Amendment right of association
`and the Fourth Amendment right to be free from unreasonable
`searches and seizures. Just last term, the Supreme Court con-
`firmed an individual’s right to challenge the legality of Exec-
`utive Branch conduct on separation-of-powers grounds,
`Jewel’s third constitutional claim: “[I]ndividuals sustain dis-
`crete,
`justiciable
`injury
`from actions
`that
`transgress
`separation-of-powers limitations. Separation-of-powers prin-
`ciples are intended, in part, to protect each branch of govern-
`ment from incursion by the others. Yet the dynamic between
`and among the branches is not the only object of the Constitu-
`tion’s concern. The structural principles secured by the sepa-
`ration of powers protect the individual as well.” Bond, 131 S.
`Ct. at 2365.
`
`[6] Satisfied that Jewel sufficiently alleged concrete injury,
`we turn now to the more difficult question, whether the rights
`asserted are sufficiently particularized. The breadth of Jewel’s
`allegations calls into question whether she has a particularized
`grievance or instead one that “is held in common by all mem-
`bers of the public,” Schlesinger v. Reservists Comm. to Stop
`the War, 418 U.S. 208, 220 (1974), and thus necessarily an
`abstract interest shared by all citizens. The critical question is
`whether she “has alleged such a personal stake in the outcome
`of the controversy as to warrant . . . invocation of federal-
`court jurisdiction.” Summers v. Earth Island Inst., 555 U.S.
`488, 493 (2009) (internal quotation marks omitted).
`
`[7] The Supreme Court observed in Federal Election Com-
`mission v. Akins that, “[w]hether styled as a constitutional or
`prudential limit on standing, the Court has sometimes deter-
`mined that where large numbers of Americans suffer alike,
`the political process, rather than the judicial process, may pro-
`vide the more appropriate remedy for a widely shared griev-
`ance.” 524 U.S. 11, 23 (1998). But the fact that a harm is
`widely shared does not necessarily render it a generalized
`
`

`
`21614
`
`JEWEL v. NATIONAL SECURITY AGENCY
`
`grievance. In Akins, the Court gave context to the notion of
`a generalized grievance, explaining that petitioners lack stand-
`ing “in cases where the harm at issue is not only widely
`shared, but is also of an abstract and indefinite nature—for
`example, harm to the ‘common concern for obedience of
`law.’ ” 524 U.S. at 23 (quoting L. Singer & Sons v. Union
`Pac. R.R. Co., 311 U.S. 295, 303 (1940)); see also Lujan, 504
`U.S. at 573-74 (“We have consistently held that a plaintiff
`raising only a generally available grievance about government
`—claiming only harm to his and every citizen’s interest in
`proper application of the Constitution and laws . . . does not
`state an Article III case or controversy.”). The Court in Akins
`continued “[o]ften the fact that an interest is abstract and the
`fact that it is widely shared go hand in hand. But their associa-
`tion is not invariable, and where a harm is concrete, though
`widely shared, the Court has found ‘injury in fact.”’ 524 U.S.
`at 24. As examples of widely shared but concrete injuries the
`Court listed “a widespread mass tort” or “where large num-
`bers of voters suffer interference with voting rights conferred
`by law.” Id. Indeed, “it does not matter how many persons
`have been injured by the challenged action so long as ‘the
`party bringing suit . . . show[s] that the action injures him in
`a concrete and personal way.’ ” Massachusetts v. EPA, 549
`U.S. 497, 517 (2007) (quoting Lujan, 504 U.S. at 581) (Ken-
`nedy, J., concurring in part and concurring in the judgment).
`
`We recently considered the prerequisites for a “sufficiently
`concrete and specific injury” in Newdow v. Lefevre, an Estab-
`lishment Clause challenge to the inscription “In God We
`Trust” on coins and currency. 598 F.3d 638 (9th Cir. 2010),
`cert. denied 131 S. Ct. 1612 (2011). We held that Newdow
`met the standing requirement. The fact that his “encounters
`with the motto are common to all Americans does not defeat
`his standing, because Newdow has alleged a concrete, particu-
`larized, and personal injury resulting from his frequent,
`unwelcome contact with the motto.” Id. at 642. This case
`illustrates that even though the experience at the root of New-
`dow’s complaint was shared by virtually every American, this
`
`

`
`JEWEL v. NATIONAL SECURITY AGENCY
`
`21615
`
`widespread impact was not dispositive of standing because his
`grievance was nonetheless concrete and particular.
`
`[8] Following the rationale of Akins and Newdow, we con-
`clude that Jewel alleged a sufficiently concrete and particular-
`ized injury. Jewel’s allegations are highly specific and lay out
`concrete harms arising from the warrantless searches. Jewel
`described these actions as a “dragnet” and alleged that “[t]his
`network of Surveillance Configurations”—“the technical
`means used to receive the diverted communications”—
`“indiscriminately acquired domestic communications as well
`as international and foreign communications.” Specifically,
`Jewel alleged that “[t]hrough this network of Surveillance
`Configurations and/or other means, Defendants have acquired
`and continue to acquire the contents of domestic and interna-
`tional wire and/or electronic communications sent and/or
`received by Plaintiffs and class members.” In addition to cap-
`turing internet traffic, “Defendants and AT&T acquire all or
`most long-distance domestic and international phone calls to
`or from AT&T long distance customers, including both the
`content of those calls and dialing, routing, addressing and/or
`signaling information pertaining to those calls.”
`
`[9] The complaint also described in detail the particular
`electronic communications equipment used (“4ESS switch”
`and “WorldNet Internet Room”) at the particular AT&T facil-
`ity (Folsom Street, San Francisco) where Jewel’s personal and
`private communications were allegedly intercepted in “a
`secret room known as the ‘SG3 Secure Room.’ ” Accepting
`Jewel’s allegations as true, she has pled more than the mini-
`mum “general factual allegations” required to survive dis-
`missal. Bernhardt, 279 F.3d at 867. The court need “not pass
`upon abstract, intellectual problems, but [can] adjudicate con-
`crete, living contests between adversaries.” Akins, 524 U.S. at
`20 (internal quotation marks and alteration omitted). Akins
`establishes that, where the injury is sufficiently concrete and
`specific, “that it is widely shared does not deprive Congress
`
`

`
`21616
`
`JEWEL v. NATIONAL SECURITY AGENCY
`
`of constitutional power to authorize its vindication in the fed-
`eral courts.” 524 U.S. at 25.
`
`Significantly, Jewel alleged with particularity that her com-
`munications were part of the dragnet. The complaint focused
`on AT&T and was not a scattershot incorporation of all major
`telecommunications companies or a blanket policy challenge.
`Jewel’s complaint also honed in on AT&T’s Folsom Street
`facility, through which all of Jewel’s communications alleg-
`edly passed and were captured.
`
`Our decision is consistent with the approach in other cir-
`cuits. The Second Circuit recently determined, after conduct-
`ing a detailed analysis, that plaintiffs in a similar suit had
`standing to challenge provisions of the FISA. Amnesty Int’l
`United States v. Clapper, 638 F.3d 118, 122 (2d Cir. 2011).
`Amnesty International involved a facial challenge to § 702 of
`the FISA in which the plaintiffs’ alleged injuries were “fear
`that the government will intercept their sensitive international
`communications” and the costs associated with efforts to
`avoid such anticipated injuries. Id. at 133. Jewel has much
`stronger allegations of concrete and particularized injury than
`did the plaintiffs in Amnesty International. Whereas they
`anticipated or projected future government conduct, Jewel’s
`complaint alleges past incidents of actual government inter-
`ception of her electronic communications, a claim we accept
`as true.5
`
`5The government’s position in Amnesty International appears to be in
`tension with its argument here. There, the government “argue[d] that the
`plaintiffs can obtain standing only by showing either that they have been
`monitored or that it is ‘effectively certain’ that they will be monitored.”
`Id. at 135. Shifting its position, the government argues here that Jewel
`lacks standing even if her communications were in fact captured and mon-
`itored. The government does not deny Jewel’s allegations but sidesteps the
`issue, asserting that “plaintiffs offer nothing other than bare speculation
`for their assertion that any surveillance is ongoing outside of [FISA Court]
`authorizations.” That approach conflates the ultimate merits question—
`whether the surveillance exceeded statutory or constitutional authority—
`with the threshold standing determination.
`
`

`
`JEWEL v. NATIONAL SECURITY AGENCY
`21617
`[10] Jewel’s case stands in contrast to two other cases,
`where our sister circuits held that plaintiffs lacked standing.
`In United Presbyterian Church v. Reagan, the D.C. Circuit
`confronted a “generalized challenge” to “the constitutionality
`of the entire national intelligence-gathering system,” not the
`alleged actual impact of a specific program or protocol on the
`plaintiff. 738 F.2d 1375, 1381 (D.C. Cir. 1984) (internal quo-
`tation marks omitted). Jewel’s complaint does not suffer from
`vague “chilling effect” allegations like those in United Pres-
`byterian nor does it fall in the category of speculative harm.
`Id. at 1380. While specificity does not necessarily trump spec-
`ulation, the detail and specificity here are sufficient to support
`a particularized claim.
`
`Similarly distinguishable is the Sixth Circuit’s denial of
`standing to challenge the entire NSA wiretapping program.
`ACLU v. NSA, 493 F.3d 644, 648 (6th Cir. 2007). Although
`the court reversed on standing grounds, it considered a fully-
`developed summary judgment record. Arguably that case is of
`“no relevance here,” because our case “involve[s] not a Rule
`56 motion for summary judgment but a Rule 12(b) motion to
`dismiss on the pleadings.” Nat’l Wildlife Fed., 497 U.S. at
`889. The ACLU plaintiffs—attorneys and other professionals
`whose communications with overseas individuals were alleg-
`edly impacted—were unable to “produce any evidence that
`any of their own communications have ever been intercept-
`ed.” ACLU, 493 F.3d at 653. The court thus faulted them for
`“assert[ing] a mere belief” that the NSA eavesdropped on
`their communications without warrants. Id. This failure of
`proof doomed standing. Ultimately Jewel may face similar
`procedural, evidentiary and substantive barriers as the plain-
`tiffs in ACLU, but, at this initial pleading stage, the allega-
`tions are deemed true and are presumed to “embrace the
`‘specific facts’ needed to sustain the complaint.” Lujan, 497
`U.S. at 888; see also Bennett v. Spear, 520 U.S. 154, 168
`(1997) (noting in its discussion of standing, “at the pleading
`stage, general factual allegations of injury resulting from the
`defendant’s conduct may suffice, for on a motion to dismiss
`
`

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`21618
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`JEWEL v. NATIONAL SECURITY AGENCY
`
`we presume that general allegations embrace those specific
`facts that are necessary to support the claim.”).
`
`B. JEWEL’S ALLEGATIONS MEET THE SECOND AND THIRD
`PRONGS OF THE TEST FOR CONSTITUTIONAL STANDING
`
`[11] The harms Jewel alleges are “fairly traceable to the
`challenged action” of the NSA. Simon v. E. Ky. Welfare
`Rights Org., 426 U.S. 26, 41-42 (1976). It is no secret that in
`the weeks after the attacks of September 11, 2001, President
`Bush authorized the NSA to engage in warrantless wiretap-
`ping. The President admitted as much: “I authorized a terrorist
`surveillance program to detect and intercept al Qaeda commu-
`nications involving someone here in the United States.” Presi-
`dent George W. Bush, Speech at the National Security
`Agency (Jan. 25, 2006) available at http://georgewbush-
`whitehouse.archives.gov/news/releases/2006/01/20060125-
`1.html. Thus, the harms Jewel alleges—invasion of privacy
`and violation of statutory protections—can be directly linked
`to this acknowledged surveillance program.
`
`[12] Jewel easily meets the third prong of the standing
`requirement. There is no real question about redressability.
`Jewel seeks an injunction and damages, either of which is an
`available remedy should Jewel prevail on the merits.
`
`C. JEWEL SATISFIES THE PRUDENTIAL REQUIREMENTS FOR
`STANDING
`
`The heart of the district court’s opinion and the core of the
`government’s argument on appeal focuses on prudential
`standing concerns, namely the broad nature of the claims and
`the role of the courts in addressing intelligence and surveil-
`lance issues. It is true, according to the Court in Akins, that
`the concern about generalized grievances can be characterized
`as both a constitutional and prudential concern, as there is
`overlap in the analysis. 524 U.S. at 23. We are satisfied that
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`

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`JEWEL v. NATIONAL SECURITY AGENCY
`
`21619
`
`our analysis of this issue as a constitutional standing require-
`ment applies with equal force in the prudential arena.
`
`[13] After labeling Jewel’s claim as an effort “to redress
`alleged malfeasance by the executive branch,” the district
`court stated that “the political process, rather than the judicial
`process,” may be the appropriate avenue. There is little doubt
`that Jewel challenges conduct that strikes at the heart of a
`major public controversy involving national security and sur-
`veillance. And we understand the government’s concern that
`national security issues require sensitivity. That being said,
`although the claims arise from political conduct and in a con-
`text that has been highly politicized, they present straightfor-
`ward claims of statutory and constitutional rights, not political
`questions. See Japan Whaling Ass’n v. Am. Cetacean Soc.,
`478 U.S. 221, 230 (1986).
`
`The district court’s suggestion that Congress rather than the
`courts is the preferred forum ignores two important points: To
`begin, Congress already addressed the issue and spelled out
`a private right of action in the FISA, ECPA and SCA. And,
`in 2008, “[p]artially in response to the[ ] [wiretapping] suits,
`Congress held hearings and ultimately passed legislation that
`provided retroactive immunity to the companies . . . but
`expressly left intact potential claims against the government.”
`Hepting, slip op. at 21573.
`
`[14] Focusing on the federal statutory causes of action, the
`prudential analysis is simplified: “prudential standing is satis-
`fied when the injury asserted by a plaintiff arguably falls
`within the zone of interests to be protected or regulated by the
`statute.” Akins, 524 U.S. at 20 (internal citations, quotation
`marks and alterations omitted). In the surveillance statutes, by
`granting a judicial avenue of relief, Congress specifically
`envisioned plaintiffs challenging government surveillance
`under this statutory constellation. Jewel’s statutory claims
`undoubtedly allege harms “within the zone of interests to be
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`21620
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`JEWEL v. NATIONAL SECURITY AGENCY
`
`protected or regulated by the statute[s],” alleviating any pru-
`dential standing concerns. Id.
`
`[15] The district court effectively imposed a heightened
`standard for consideration of Jewel’s constitutional claims.
`See Jewel v. NSA, 2010 U.S. Dist. LEXIS 5110 at *24-25.
`According to the district court, the reluctance to adjudicate
`constitutional questions is heightened “when, as here, the con-
`stitutional issues at stake in the litigation seek judicial
`involvement in the affairs of the executive branch and
`national security concerns appear to undergird the challenged
`actions.” Jewel v. NSA, 2010 U.S. Dist. LEXIS 5110 at *25.
`The court went on to hold that “[i]n such cases, only plaintiffs
`with strong and persuasive claims to Article III standing may
`proceed.” Id. (emphasis added). This determination was in
`error. The district court quoted Schlesinger for the proposition
`that “when a Court is asked to undertake constitutional adju-
`dication, the most important and delicate of its responsibili-
`ties, the requirement of concrete injury further serves the
`function of insuring that such adjudication does not take place
`unnecessarily.” 418 U.S. at 221. It bears emphasis that the
`Supreme Court offered that observation in rejecting “citizen
`standing,” a significantly different scenario than here. Id. at
`216-21. Plaintiffs in Schlesinger, who challenged congressio-
`nal military reserve membership, claimed an interest in “com-
`pel[ling] the Executive Branch to act in conformity with the
`Incompatability Clause, an interest shared by all citizens.”6 Id.
`at 217 (emphasis added).
`
`[16] In the sentence that follows t