ORDER GRANTING REQUEST TO CONTINUE HEARING RE: EFFECT OF USA FREEDOM ACT; DIRECTING THE FILING OF SUPPLEMENTAL BRIEFING (Dkt. No. 80)

YVONNE GONZALEZ ROGERS, District Judge.

On June 3, 2015, Defendants Loretta Lynch, et al., ("the Government") filed a "Notice Regarding Enactment of USA FREEDOM Act of 2015." (Dkt. No. 67.) On June 9, 2015, Plaintiff Twitter, Inc. ("Twitter") filed its own Notice regarding the new legislation. (Dkt. No. 68.) The Court thereafter ordered the parties to file supplemental briefing on the effect of the legislation on both the Government's pending partial motion to dismiss and on the complaint generally, and the parties did so. (See Dkt. Nos. 69, 74, 75, 76, 77.)

Also, on August 28, 2015, the Government filed a Notice of Recent Authority (Dkt. No. 78), attaching a decision of the Ninth Circuit which vacated judgments in several cases pending before it (In re: National Security Letter cases, Ninth Circuit Court of Appeal Nos. 13-15957, 13-16731, 13-16732), and remanded to the district court for further consideration "in light of the significant changes to" 18 U.S.C. sections 2709 and 3511 effected by the Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015, Pub. L. No. 114-23, 129 Stat. 268 (2015) ("the USA FREEDOM Act" or "the USAFA").

The Court set this matter for a hearing for September 22, 2015, regarding the effect of the USAFA on the pending motion to dismiss, as well as on the continued viability of Twitter's complaint generally. The parties submitted a stipulated request to move that hearing to October 13, 2015, which the Court GRANTS. (Dkt. No. 80.)

However, in the interim, the Court further ORDERS that the parties provide a written response (not to exceed 15 pages) to the questions below by September 28, 2015. Of primary concern to the Court is whether the USAFA has changed the FISA and NSL-related provisions that were challenged by Twitter in its complaint (i.e., 18 U.S.C. §§ 2709 and 3511) such that the entire action is now moot. "[T]he Supreme Court and [the Ninth Circuit] have repeatedly held that a case is moot when the challenged statute is repealed, expires, or is amended to remove the challenged language." Log Cabin Republicans v. United States, 658 F.3d 1162, 1166 (9th Cir. 2011) ("Don't Ask, Don't Tell" statute repealed during pendency of appeal of Constitutional challenge); see also Princeton Univ. v. Schmidt, 455 U.S. 100, 101, 103 (1982) (per curiam) (First Amendment challenge to prior set of university regulations governing on-campus speech by members of the public was mooted when the university substantially amended those regulations to create a more permissive scheme). Similarly, when subsequent legislation or rulemaking supersedes challenged regulations or rules, the challenge is moot. NRDC v. U.S. Nuclear Regulatory Comm'n, 680 F.2d 810, 813-14 & n.8 (D.C. Cir. 1982) (challenge to interim rule for failure to abide by notice and comment requirements mooted by issuance of final rule with notice and comment); Bullfrog Films, Inc. v. Wick, 959 F.2d 778, 780 (9th Cir. 1992) (appeal moot where interim regulations found unconstitutional by the district court have been supplanted by the new legislation). It appears to the Court that at least some of the issues raised in Twitter's complaint no longer present justiciable questions. The parties shall, therefore, address the following questions in their supplemental briefing:

1. If the Court finds that the DAG letter is superceded by Section 603 of the USAFA, (newly codified at 50 U.S.C. section 1874), does this moot Twitter's as-applied challenge to section 2709(c)? The Court notes that Twitter has characterized its as-applied challenge to section 2709(c) as being based on the Government's interpretation of the section and "application of the same to Twitter via the DAG Letter." (Dkt. No. 66, Exh. A.)

2. Is a facial challenge to section 2709(c) completely mooted by amendments that: (i) deleted and replaced 2709(c); (ii) revised section 2709(b); and (iii) added 2709(d), such that the provisions now require the government to provide notice of a right to judicial review in order for any nondisclosure provision to apply? Relatedly, would the as-applied challenge mooted to the same degree as the facial challenge, or does the mootness analysis differ for the two?

3. If the Court finds that the claims in Twitter's complaint are mooted by the USAFA, should a dismissal be with leave to amend, or would any further challenge to the new and amended provisions have to be made in a new lawsuit?

4. What effect, if any, does the Ninth Circuit's order vacating and remanding for further consideration the In re: National Security Letter cases have on the pending motion and the complaint generally?

This Order terminates Docket No. 80.

IT IS SO ORDERED.