McKEOWN, Circuit Judge:
This appeal is the second trip to our court for a group of plaintiffs in their long-running
The government filed a motion to dismiss the appeal for lack of jurisdiction, arguing that certification was improper under Rule 54(b). We agree. Our task is to address the juridical concerns surrounding the appeal of less than a complete judgment and to "scrutinize the district court's evaluation of such factors as the interrelationship of the claims so as to prevent piecemeal appeals in cases which should be reviewed only as single units." Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 10, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980). Because the Fourth Amendment question is intertwined with several other issues that remain pending in district court and because this interlocutory appeal would only prolong final resolution of the case, we conclude that the Rule 54(b) certification was not warranted and dismiss the appeal for lack of jurisdiction.
This appeal arises out of ongoing litigation concerning Internet and cell phone surveillance programs the government began in the aftermath of the terrorist attacks on September 11, 2001.
In 2010, the district court dismissed the action with prejudice, holding that plaintiffs
After remand, the district court addressed the interaction between the state secrets privilege and sovereign immunity as those issues pertain to the statutory claims under the Foreign Intelligence Surveillance Act ("FISA"), the Electronic Communications Privacy Act ("Stored Communications Act"), the Wiretap Act, and the Administrative Procedure Act. Jewel v. Nat'l Sec. Agency, 965 F.Supp.2d 1090 (N.D.Cal.2013). The district court determined:
The district court's order disposed of eleven of the seventeen claims and explicitly declined to address any of the constitutional claims, which included First and Fourth Amendment challenges to Internet and phone surveillance programs and an alleged violation of the separation of powers principle. Id. at 1097, 1112. Nor did the court address the possible defenses, such as qualified immunity, that might be available to individual defendants. The district court requested further briefing on the scope of FISA preemption with regard to the constitutional claims, noting that plaintiffs had the burden to show standing to sue without risking impermissible damage to ongoing national security efforts. Id. at 1112. The court also requested briefing on the "recent disclosure of the government's continuing surveillance activities and the statement by the Director of National Intelligence that certain information. . . should be declassified and immediately released to the public." Id. at 1113.
While the parties were in the process of briefing these questions, three of the five plaintiffs, Jewel, Knutzen, and Walton (collectively "Jewel" or the "Jewel plaintiffs"), moved for partial summary judgment on one aspect of their Fourth Amendment claim related specifically to Internet interception because they thought the public record supported their claim. Jewel specifically limited the scope of the motion to only one aspect of the Fourth Amendment
In an order denying Jewel's motion for summary judgment and granting the government's cross-motion, the district court held that plaintiffs failed to establish a sufficient factual basis for standing to challenge the ongoing Internet data collection program. Although the court agreed that Jewel could demonstrate concrete injury if the Internet interception program operated in the way proffered, "the evidence at summary judgment is insufficient to establish that the Upstream collection process operates in the manner in which Plaintiffs allege it does" and that, based on classified materials relating to Upstream collection, "the Plaintiffs' version of the significant operational details of the Upstream collection process is substantially inaccurate." Id. at *4. The court further held that the Fourth Amendment claims "must be dismissed because even if Plaintiffs could establish standing . . . any possible defenses would require impermissible disclosure of state secret information." Id. at *1.
Granting Jewel's motion under Rule 54(b), the district court certified that "adjudication of this claim is a final determination and that no just reason exists for delay in entering final judgment on this claim." Other than a bare recitation of the rule, the court offered no explanation or analysis regarding the certification. After Jewel filed this appeal, the government responded with a motion to dismiss the appeal for lack of jurisdiction.
We begin with the foundational rule that generally we have jurisdiction to hear an appeal only if it arises from a final order, and "[a]n order granting partial summary judgment is usually not an appealable final order under 28 U.S.C. § 1291 because it does not dispose of all of the claims." Am. States Ins. Co. v. Dastar Corp., 318 F.3d 881, 884 (9th Cir.2003) (citing 28 U.S.C. § 1291). An important exception is found in Rule 54(b), which provides in relevant part:
The Rule was adopted "specifically to avoid the possible injustice of delay[ing] judgment o[n] a distinctly separate claim [pending] adjudication of the entire case. . . . The Rule thus aimed to augment, not diminish, appeal opportunity." Gelboim v. Bank of Am. Corp., ___ U.S. ___, 135 S.Ct. 897, 902-03, 190 L.Ed.2d 789 (2015) (citations omitted). The Supreme Court has put some meat on this bare-bones rule. In highlighting the importance of juridical concerns with piecemeal appeals, the Court explained the role of a court of appeals in reviewing a Rule 54(b) certification:
Curtiss-Wright Corp., 446 U.S. at 10, 100 S.Ct. 1460 (citations omitted).
We review de novo the "juridical concerns" determination, first asking whether the certified order is sufficiently divisible from the other claims such that the "case would [not] inevitably come back to this court on the same set of facts." Wood v. GCC Bend, LLC, 422 F.3d 873, 879 (9th Cir.2005). This inquiry does not require the issues raised on appeal to be completely distinct from the rest of the action, "so long as resolving the claims would `streamline the ensuing litigation.'" Noel v. Hall, 568 F.3d 743, 747 (9th Cir. 2009) (citation omitted).
The determination regarding Rule 54(b)'s equitable analysis ordinarily "is left to the sound judicial discretion of the district court to determine the `appropriate time' when each final decision in a multiple claims action is ready for appeal." Wood, 422 F.3d at 878 (quoting Curtiss-Wright Corp., 446 U.S. at 8, 100 S.Ct. 1460). Although we encourage district courts to make factual findings and to explain their reasons for certifying under Rule 54(b) in order to facilitate appellate review, see Morrison-Knudsen Co. v. Archer, 655 F.2d 962, 965 (9th Cir.1981), we have held that the "lack of such findings is not a jurisdictional defect as long as we can independently determine the propriety of the order." Noel, 568 F.3d at 747 n. 5. Thus, if a district court does not make any findings or give any explanation, we turn to the record to discern whether Rule 54(b) certification was warranted. Here, similar to Noel, the district court did not explain why it found that no just reason existed to delay entering judgment. Unlike Noel, however, based on the record before us we conclude that Rule 54(b) certification was not appropriate.
As in Wood, "[w]e start (and mostly stop) with juridical concerns." 422 F.3d at 879. We face the same hurdle encountered in Wood: "[w]e have no district court finding . . . about the interrelationship of the claims or issues, and the effect of the relationship on the likelihood of piecemeal appeals." Id. at 880.
The certification order carves out a single claim: "that the copying and searching of their Internet communications is conducted without a warrant or any individualized suspicion and, accordingly, violates
The district court observed that "Plaintiffs seek adjudication as to their Fourth Amendment Claim with regard only to the NSA's acknowledged Upstream collection of communications." Jewel, 2015 WL 545925, at *2 (emphasis added). Jewel's counsel characterized the claim on appeal as "the entirety of the Fourth Amendment Internet interception claim against the government." This effort to carve out a specific, severable claim obscures the fact that the Internet interception theory is not the only Fourth Amendment argument, nor is the Fourth Amendment the only ground for relief alleged to arise from the Internet interception program, nor does the appeal encompass all plaintiffs or all defendants. It quickly becomes apparent that the Rule 54(b) order does not present final adjudication of a complete claim on the facts, the theories for relief, or the parties. See Houston Indus. Inc. v. United States, 78 F.3d 564, 567 (Fed.Cir.1996) ("The resolution of individual issues within a claim does not satisfy the requirements of Rule 54(b).").
Jewel's assertion that the Fourth Amendment Internet interception claim is factually distinct from the rest of the litigation is unconvincing. Jewel divides the claims into four categories, which they suggest are distinct: Internet content, Internet records (metadata), telephone content, and telephone records (metadata). All four categories rely on inter-connected factual allegations that the government collaborated with telecommunications providers to obtain information about domestic communications in a manner that is either unconstitutional or beyond the government's statutory authority. Indeed, the complaint presents one section entitled "Factual Allegations Related to All Counts." We conclude that "this case would inevitably come back to this court on the same set of facts." See Wood, 422 F.3d at 879.
Apart from the common and intersecting facts, the nature of the claims makes piecemeal certification inappropriate. Jewel attempts to bifurcate the Fourth Amendment claims, focusing this appeal on Internet interception, while leaving the Fourth Amendment phone records claims in district court. Notably, however, all five plaintiffs have Fourth Amendment claims related to their phone records allegations. They also have damages claims against individual defendants for Fourth Amendment violations that have not yet been addressed by the district court.
The carve-out approach suffers from another infirmity—not even all of the Internet interception claims are raised in this appeal. For example, the First Amendment claims remain unresolved in the district court, as do many of the statutory Internet interception claims. See Jewel, 965 F.Supp.2d at 1112. Significantly, the Internet interception claims rely on overlapping
A final complication is that not all of the parties are included in this appeal, nor does this appeal resolve all of the Jewel plaintiffs' claims. See Spiegel v. Trustees of Tufts Coll., 843 F.2d 38, 44 (1st Cir. 1988) ("It will be a rare case where Rule 54(b) can appropriately be applied when the contestants on appeal remain, simultaneously, contestants below."). Only three of the five plaintiffs pursued the Fourth Amendment motion for summary judgment. Jewel explains that this is because two of the plaintiffs were not AT & T Internet customers and, therefore, did not claim that the government had collected information regarding their Internet use. Nevertheless, this circumstance fractures the appeal even further, especially because the facts and legal theories relied upon by the Jewel plaintiffs to show standing for the Fourth Amendment argument are not substantially different from some of the other constitutional and statutory claims, which apply to all plaintiffs.
In sum, the "practical effect of certifying the [Fourth Amendment] issue[] in this case is to deconstruct [the] action so as to allow piecemeal appeals with respect to the same set of facts." Wood, 422 F.3d at 880.
Apart from juridical concerns, which counsel against certification, we are not convinced that this appeal meets the "no just reason for delay" prong of Rule 54(b). Our consideration of the single issue served up for interlocutory review is more likely to cause additional delay than it is to ameliorate delay problems. See Sussex Drug Prods. v. Kanasco, Ltd., 920 F.2d 1150, 1156 (3d Cir.1990) ("The interlocking factual relationship of the various counts leading to the likelihood that a subsequent appeal would again seek review of the issues presented here also suggests that it was not in the interests of sound judicial administration for the district court to certify this judgment as final.").
We are sympathetic to the Jewel plaintiffs' desire to bring at least part of this case to a close. But awaiting a decision on a single claim, which is not a linchpin claim either factually or legally, does not advance this result. In fact, the result of
Because the appeal does not meet the requirements of Rule 54(b), we lack jurisdiction over the appeal. The government's motion to dismiss is granted, and the case is remanded to the district court for further proceedings.