In re National Security Agency Telecommunications Records Litigation, No. M:2006cv01791 - Document 753 (N.D. Cal. 2010)

Court Description: ORDER granting 722 Motion to Dismiss; granting in part and denying in part 738 Motion for Attorney Fees. (vrwlc3, COURT STAFF) (Filed on 12/21/2010) (Entered: 01/19/2011)

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In re National Security Agency Telecommunications Records Litigation Doc. 753 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 United States District Court For the Northern District of California 10 11 IN RE: MDL Docket No 06-1791 VRW 12 NATIONAL SECURITY AGENCY TELECOMMUNICATIONS RECORDS LITIGATION Case No C 07-0109 VRW 13 ORDER 14 This order pertains to: 15 16 17 18 AL-HARAMAIN ISLAMIC FOUNDATION, INC, an Oregon Nonprofit Corporation; WENDELL BELEW, a United States Citizen and Attorney at Law; ASIM GHAFOOR, a United States Citizen and Attorney at Law, 19 Plaintiffs, 20 v 21 BARACK H OBAMA, President of the United States; NATIONAL SECURITY AGENCY and KEITH B ALEXANDER, its Director; OFFICE OF FOREIGN ASSETS CONTROL, an office of the United States Treasury, and ADAM J SZUBIN, its Director; FEDERAL BUREAU OF INVESTIGATION and ROBERT S MUELLER III, its Director, 22 23 24 25 26 27 Defendants. / 28 Dockets.Justia.com 1 Al-Haramain Islamic Foundation, Inc (“Al-Haramain”), an Oregon nonprofit corporation, and two of its attorneys filed an 3 action for damages and equitable relief against the President of 4 the United States; the National Security Agency (“NSA”) and its 5 Director; the Treasury Department’s Office of Foreign Assets 6 Control (“OFAC”) and its Director; and the Federal Bureau of 7 Investigation (“FBI”) and its Director, Robert S Mueller III, in 8 both his official and personal capacities. 9 defendants conducted an illegal and unconstitutional program of 10 United States District Court For the Northern District of California 2 electronic surveillance of United States citizens and entities. 11 March 31, 2010, the court granted plaintiffs’ motion for summary 12 judgment of liability on their claim that defendants violated the 13 Foreign Intelligence Surveillance Act (“FISA”), 50 USC §§ 1801 et 14 seq. 15 in his personal capacity. 16 for recovery of damages, equitable relief and attorney fees. Plaintiffs allege that On The court dismissed the claims against FBI Director Mueller 17 This order concerns plaintiffs’ claims After plaintiffs prevailed on their FISA claim, they 18 requested recovery of damages. 19 $20,400 in liquidated damages and $183,600 in punitive damages. 20 Doc ##723/1171 at 2; 729/122. 21 court GRANTS the motion for liquidated damages as to plaintiffs 22 Ghafoor and Belew and awards liquidated damages to those plaintiffs 23 in the amount of $20,400 per plaintiff. 24 motion for liquidated damages as to plaintiff Al-Haramain. 25 court DENIES plaintiffs’ motion for punitive damages. Specifically, each plaintiff seeks For the reasons set forth below, the The court DENIES the The 26 27 28 1 Documents will be cited both to the MDL docket number (No M 06-1791) and to the individual docket number (No C 07-0109) in the following format: Doc #(MDL)/(individual). 2 1 Plaintiffs also seek equitable relief in two forms: (1) a 2 declaration that defendants’ warrantless electronic surveillance 3 was unlawful as a violation of FISA; and (2) an order that any 4 information obtained by means of the defendants’ unlawful 5 surveillance shall not be used by the United States government in 6 any proceeding and shall be expunged from defendants’ files and 7 records. 8 DENIES both requests for equitable relief. 9 Doc #723/117. For the reasons set forth below, the court Plaintiffs move for the entry of an award of attorney United States District Court For the Northern District of California 10 fees and expenses. 11 reasons set forth below, the court GRANTS the motion of plaintiffs 12 Ghafoor and Belew and awards attorney fees and expenses in the 13 amount of $2,537,399.45. 14 Al-Haramain for attorney fees and expenses. Doc #738/128; 746/131; 748/132. For the The court DENIES the motion of plaintiff 15 16 17 I The factual background and procedural history of this 18 litigation is thoroughly summarized in the March 31, 2010 order and 19 will not be rescribed at length here. 20 relevant to the present order are as follows. Doc #721/115. The facts 21 22 A 23 Shortly after the September 11, 2001 terrorist attacks, 24 George W Bush, the President of the United States, authorized the 25 NSA to engage in various new activities aimed at gathering 26 intelligence. 27 collectively known as the “President’s Surveillance Program” 28 (“PSP”), and all but one remain highly classified. Doc #671-2/104-2 at 10. 3 These activities are Id at 6 & 10. 1 The only one of these activities that has been publicly disclosed, 2 and the one that forms the basis for the plaintiffs’ claims, is 3 known as the “Terrorist Surveillance Program” (“TSP”). 4 This program involved interception, without court order, of 5 international communications where there was “a reasonable basis to 6 conclude that one party to the communication is a member of al- 7 Qa’ida, affiliated with al-Qa’ida, or a member of an organization 8 affiliated with al-Qa’ida.” 9 inception in late September 2001, the president reauthorized the United States District Court For the Northern District of California 10 11 Id (citation omitted). PSP approximately every 45 days. Id at 11. After its Id. On September 18, 2001, “Congress authorized the President 12 to ‘use all necessary and appropriate force against those nations, 13 organizations, or persons he determines planned, authorized, 14 committed, or aided the terrorist attacks’ of September 11 in order 15 to prevent ‘any future acts of international terrorism against the 16 United States.’” 17 December 16, 2005 (when the existence of the TSP was publicly 18 revealed in media reports), NSA director Michael Hayden briefed 19 various members of Congress on the PSP. 20 #671-2/104-2 at 21. 21 ever suggested that the NSA should discontinue the program. 22 #671-2/104-2 at 21. 23 Doc #657-5/99-5 at 3. Between this date and Doc #657-2/99-2 at 3; Doc According to Hayden, no member of Congress Doc Between October 2001 and May 2003, Deputy Assistant 24 Attorney General John Yoo in the Department of Justice (“DOJ”) 25 Office of Legal Counsel (“OLC”) was the only OLC official who was 26 informed of the existence of the PSP. 27 drafted a November 2, 2001 memo supporting the legality of the PSP 28 and in particular focusing on the TSP and its legality in light of 4 Doc #671-2/104-2 at 15. Yoo 1 FISA. 2 restrict the president’s authority in the national security area in 3 the absence of a clear statement in the statute and that such a 4 construction would unconstitutionally infringe upon the president’s 5 Article II authority. Id at 16. 6 Yoo reasoned that FISA should not be construed to Id at 17. After Yoo resigned in May 2003, his successor, Patrick 7 Philbin, was briefed on the PSP and became the new advisor to the 8 Attorney General concerning the PSP. 9 Philbin’s supervisor, Assistant Attorney General Jack Goldsmith, Doc #671-2/104-2 at 24. United States District Court For the Northern District of California 10 was also briefed on the PSP. 11 found flaws in Yoo’s legal analysis supporting the legality of the 12 PSP. 13 provision of FISA demonstrating that the statute was intended to 14 apply to the president’s wartime actions. 15 Goldsmith began to develop a new analysis to support the legality 16 of parts of the PSP (including the TSP) based on the 2001 17 Congressional Authorization for Use of Military Force (“AUMF”). 18 Specifically, Philbin and Goldsmith noted that FISA prohibits 19 electronic surveillance “except as authorized by statute,” and 20 posited that the AUMF statute implicitly authorized some PSP 21 activities. 22 analysis would not justify some of the activities conducted under 23 the PSP. 24 General Ashcroft in August 2003; Ashcroft gave Philbin permission 25 to prepare a new memorandum analyzing the legality of the PSP. 26 Id at 25. Philbin and Goldsmith They noted that Yoo had failed to address a Id. Id. Id at 24-25. Id. Philbin and But Philbin and Goldsmith believed that even this They first shared their concerns with Attorney Id. In December 2003, Philbin and Goldsmith began to discuss 27 their concerns about the legality of the PSP with White House 28 officials, including White House Counsel Alberto Gonzales and 5 1 Counsel to the Vice President David Addington. 2 25. 3 General and was briefed on the PSP shortly thereafter. 4 Comey also found Yoo’s analysis of the program’s legality to be 5 questionable. Doc #671-2/104-2 at That same month, James Comey was confirmed as Deputy Attorney 6 Id at 26. Id. By early March 2004, Ashcroft and FBI Director Robert 7 Mueller agreed that there were significant problems with the legal 8 justification for some parts of the PSP. 9 27. Doc #671-2/104-2 at 26- Ashcroft was hospitalized on March 4, 2004. Id at 26. On United States District Court For the Northern District of California 10 March 5, 2004, Gonzales spoke to Goldsmith and requested that the 11 OLC produce a letter stating that Yoo’s earlier memoranda had found 12 the PSP to be legal, but Goldsmith, Philbin and Comey concluded 13 that they could not certify this because Yoo’s memoranda had not 14 accurately described some of the PSP activities in discussing their 15 legality. 16 Philbin and Comey continued to discuss the PSP with White House 17 officials including Gonzales and Addington and requested that 18 certain activities be discontinued; White House officials disagreed 19 with this request and pressed them for a reauthorization of the 20 PSP, which was soon to expire. 21 Id at 27-27. Between March 6 and March 9, Goldsmith, Id at 27-28. On the evening of March 10, 2004, Gonzales and White 22 House Chief of Staff Andrew Card went to the hospital to persuade 23 Ashcroft to reauthorize the PSP. 24 stated his legal concerns with the PSP “in very strong terms” and 25 told Gonzales that Ashcroft’s deputy, Comey, was the acting 26 Attorney General at the time. 27 program. 28 Doc #671-2/104-2 at 30. Id. Comey did not authorize the On March 11, 2004, President Bush signed a new 6 Ashcroft 1 authorization for the PSP; instead of being certified by the 2 Attorney General, as in every previous instance, it was certified 3 by White House Counsel Gonzales. 4 authorization asserted that the president’s commander-in-chief 5 authority under Article II displaced any contradictory provisions 6 of law, including FISA. 7 including Ashcroft, Comey, Goldsmith and Mueller, considered 8 resigning if the president continued to operate the PSP without 9 approval of the Attorney General. Id. Doc #671-2/104-2 at 31. The Various DOJ and FBI officials, Id at 32. President Bush met United States District Court For the Northern District of California 10 with Comey and Mueller on March 12, 2004 and expressed his wish to 11 “fix” the legality of the PSP through legislative or other means 12 before May 6, 2004 (the day on which the current authorization was 13 set to expire). 14 Id at 33. On March 12, 2004, Comey did not direct the FBI to stop 15 cooperating with the NSA on PSP activities. 16 33. 17 the president had the constitutional duty to “take care that the 18 laws are faithfully executed” and that his determination of the 19 PSP’s lawfulness was binding on the entire executive branch. 20 In the days following, Comey, Goldsmith and others continued to 21 express doubts that some of the PSP activities (not including the 22 TSP) could be legally supported. 23 President Bush decided to modify or discontinue certain PSP 24 activities that DOJ officials had declared legally unsupportable. 25 Id at 34. 26 Doc #671-2/104-2 at Instead, Goldsmith wrote a memorandum to Comey explaining that Id at 33-34. Id. On March 17, 2004, On May 6, 2004, Goldsmith and Philbin issued a new 27 memorandum supporting the legality of the PSP as revised by 28 President Bush. Doc #671-2/104-2 at 34. 7 The memorandum explained 1 that the 2001 AUMF authorizing “all necessary and appropriate 2 force” to prevent future terrorist attacks also necessarily 3 authorized targeted electronic surveillance against al-Qa’ida and 4 affiliated groups and thereby justified the PSP. 5 Id at 34-35. In the midst of these activities, the Department of the 6 Treasury’s OFAC blocked Al-Haramain’s assets on February 19, 2004, 7 pending an investigation for violations of tax and currency 8 reporting laws. 9 declared Al-Haramain a “Specially Designated Global Terrorist” United States District Court For the Northern District of California 10 Doc #458/35 at 7. (“SDGT”) organization. 11 On September 9, 2004, OFAC Id at 8-9. For almost seventeen months after Al-Haramain’s 12 designation as a SDGT organization, the DOJ continued to rely on 13 the argument that surveillance under the PSP did not violate FISA 14 because it was authorized by the AUMF statute. 15 3-4. 16 19, 2006. 17 final authorization for the PSP to expire. Doc #657-5/99-5 at This was summarized in a DOJ white paper issued on January Id. On February 1, 2007, President Bush allowed the Doc #671-2/104-2 at 35. 18 19 20 B Plaintiffs filed their action in the United States 21 District Court for the District of Oregon on February 28, 2006, 22 alleging, among other things, that the NSA conducted electronic 23 surveillance of telephonic attorney-client communications without 24 obtaining a warrant or otherwise complying with FISA, and that the 25 FBI used this surveillance in connection with OFAC’s investigation 26 of Al-Haramain. 27 28 On January 9, 2007, plaintiffs’ action was transferred to this district. On July 9, 2009, plaintiffs moved for partial 8 1 summary judgment on the issue of defendants’ liability under 2 section 1810 of FISA. 3 to dismiss the amended complaint and cross-moved for summary 4 judgment. 5 memorandum of decision and order granting plaintiffs’ motion and 6 denying defendants’ motion (the “March 31 order”). 7 As more fully described in the March 31 order, the court found that 8 plaintiffs established standing on their FISA claim and established 9 a prima facie case of electronic surveillance. Doc Doc #657/99. #668/103. Defendants subsequently moved On March 31, 2010 the court issued a Doc #721/115. Doc #721/115 at 2- United States District Court For the Northern District of California 10 3. 11 evidence, in response to plaintiffs’ prima facie case of electronic 12 surveillance, that a FISA warrant was obtained or that the 13 surveillance was otherwise lawful. 14 there was no genuine issue of material fact whether a warrant was 15 obtained for the electronic surveillance of plaintiffs or that such 16 surveillance was otherwise lawful, this court granted plaintiffs’ 17 motion for summary judgment on the issue of defendants’ liability 18 under FISA, denied defendants’ motion to dismiss the amended 19 complaint and denied defendants’ cross-motion for summary judgment. 20 Doc #721/115 at 3. 21 FBI Director Mueller in his personal capacity. Defendants failed to meet their burden to come forward with any 22 Doc #721/115 at 3. Because The court dismissed plaintiffs’ claims against Id. After prevailing on their motion for partial summary 23 judgment, plaintiffs submitted a proposed judgment on April 16, 24 2010. 25 in liquidated damages per plaintiff (computed at a rate of $100 per 26 day, pursuant to 50 USC § 1801(a), for violations spanning a period 27 of 204 days) and $183,600 in punitive damages per plaintiff, for a 28 total award of $204,000 per plaintiff and a grand total of $612,000 Doc #723/117. Plaintiffs’ proposed judgment seeks $20,400 9 1 for all three plaintiffs. 2 judgment also seeks equitable relief in two forms: (1) a 3 declaration that defendants’ warrantless electronic surveillance of 4 plaintiffs was unlawful as a violation of FISA; and (2) an order 5 that any information obtained by means of defendants’ unlawful 6 surveillance shall not be used by the United States government in 7 any proceeding and shall be expunged from defendants’ files and 8 records. 9 specified that plaintiffs would dismiss their remaining claims Doc #723/117. Doc #723/117. Plaintiffs’ proposed Plaintiffs’ proposed judgment also United States District Court For the Northern District of California 10 against defendants. 11 judgment seeks reasonable attorney fees and other investigation and 12 litigation costs (although the issue is not briefed in plaintiffs’ 13 proposed judgment). 14 Doc #723/117. Finally, plaintiffs’ proposed Doc #723/117. Defendants responded to plaintiffs’ proposed judgment and 15 submitted an alternative form of judgment on April 30, 2010. 16 ##727/119; 727-1/119-1. 17 plaintiffs Belew and Ghafoor are entitled to liquidated damages, in 18 the amount of $1,000 per plaintiff. 19 Defendants further contend that plaintiffs are not entitled to 20 recover any punitive damages and are not entitled to any equitable 21 relief. 22 Doc Defendants’ response argues that only Doc #727-1/119-1 at 3. Doc #727-1/119-1 at 3. On July 7, 2010, plaintiffs moved for an award of 23 attorney fees. 24 $2,630,122.80 in attorney fees and $22,012.36 in expenses. 25 #738/128 at 11. 26 plaintiffs’ requested fees are “excessive and unreasonable.” 27 #746/131 at 4. 28 relief sought, no more than $606,116 could reasonably be awarded in Doc #738/128. Plaintiffs’ motion seeks Doc Defendants opposed this motion, arguing that Doc Defendants argue that even if plaintiffs obtain all 10 1 attorney fees, and that this amount would have to be reduced if 2 punitive damages are not awarded. 3 also argue that plaintiffs are not entitled to recover any of the 4 claimed costs they seek. Doc #746/131 at 6. Defendants Doc #746/131 at 26-27. 5 6 II 7 A 8 9 Each of the three plaintiffs seeks $20,400 in liquidated damages. Doc #723/117. In the event of a FISA violation, 50 USC § United States District Court For the Northern District of California 10 1810(a) provides for recovery of “actual damages, but not less than 11 liquidated damages of $1,000 or $100 per day for each day of 12 violation, whichever is greater.” 13 not request actual damages and instead seek liquidated damages 14 based on the number of days that defendants violated FISA. 15 #723/117. 16 plaintiff on the inference that they were unlawfully surveilled for 17 204 days beginning February 19, 2004 (the date on which the 18 Department of the Treasury blocked the assets of Al-Haramain and 19 defendants announced the investigation of Al-Haramain) and ending 20 September 9, 2004 (the date on which Al-Haramain was first 21 designated as a Specially Designated Global Terrorist with ties to 22 Osama bin Laden). 23 #727/119. 24 50 USC § 1810(a). Plaintiffs do Doc Plaintiffs base the requested amount of $20,400 for each Doc ##721/115 at 38-39; 729/121 at 6-7; see Doc Defendants claim that plaintiffs lack evidentiary support 25 for their conclusion that the surveillance lasted 204 days and 26 should only recover the statutory minimum liquidated damages of 27 $1,000 provided by 50 USC § 1801(a). 28 Defendants point to plaintiff Belew’s identification of ten 11 Doc #727/119 at 9-11. 1 specific dates over three months in 2004 on which he spoke over the 2 telephone with Al-Haramain director Soliman al-Buthi (also spelled 3 “al-Buthe”) in Saudi Arabia and plaintiff Ghafoor’s statement that 4 he spoke with al-Buthi “approximately daily from February 19 to 5 February 29, 2004 and approximately weekly thereafter.” 6 7/99-7 at 2; 657-6/99-6 at 2. 7 extent of the communications that plaintiffs’ [sic] claim were 8 unlawfully surveilled, and * * * the extent of the evidence 9 submitted by plaintiffs as to the duration of any alleged United States District Court For the Northern District of California 10 surveillance.” 11 Doc ##657- Defendants claim that this is “the Doc #727/119 at 10. The evidence in the record undermines defendants’ 12 argument. 13 unclassified sources that establishes a prima facie case showing 14 that they were electronically surveilled. 15 #721/115, for extended discussion. 16 continued to monitor plaintiffs over a prolonged period. 17 the evidence does not disclose a precise start and end date of the 18 surveillance, it is evident that it continued for at least the 204 19 days plaintiffs claim, if not longer. 20 duration of unlawful surveillance appears conservative. 21 #729/121 at 7. 22 Plaintiffs have produced a wide range of evidence from See March 31 order, Doc It is apparent that defendants Although Plaintiffs’ estimate of the See Doc It is true that neither plaintiffs nor the court have 23 been informed of the precise dates on which plaintiffs were 24 surveilled. 25 information, have not admitted or disclosed whether “plaintiffs 26 were in fact subject to electronic surveillance” (Doc #727/119 at 27 12), although the fact of such surveillance is not in doubt. 28 Defendants have had ample opportunity in this litigation to produce Defendants, the only parties who have access to this 12 1 evidence in their exclusive possession concerning the details of 2 the surveillance; they have simply chosen not to do so. 3 Accordingly, the court must draw a reasonable inference regarding 4 the length of the surveillance based on the evidence offered by 5 plaintiffs to establish their prima facie case. 6 The evidence shows that an inferred surveillance period 7 lasting from February 19, 2004 to September 9, 2004 is reasonable. 8 Based on statements by the Office of Intelligence and Analysis, at 9 least four of al-Buthi’s telephone calls were intercepted as early United States District Court For the Northern District of California 10 as February 2003. 11 September 9, 2004, when the OFAC declared Al-Haramain a SDGT 12 organization, governmental interest in Al-Haramain’s activities 13 appears to have increased. 14 using surveillance and other classified information in this 15 investigation. 16 Doc #657-4/99-4 at 32-38. Between this time and Various officials involved acknowledged See Doc #721/115 at 37-41. Accordingly, the most reasonable inference is that 17 defendants had already begun electronic surveillance of Al-Haramain 18 before its assets were blocked on February 19, 2004 and continued 19 the surveillance at least through September 9, 2004. 20 Belew and Ghafoor were associated and in frequent contact with Al- 21 Haramain and its officials during this time and were similarly 22 subjected to electronic surveillance. 23 7/99-7. 24 information that could prove the precise details of defendants’ 25 surveillance, plaintiffs have nevertheless put forth sufficient 26 evidence to raise a strong inference that the period of 27 surveillance lasted at least 204 days. 28 nothing in response. Plaintiffs See Doc ##657-6/99-6; 657- Although plaintiffs have not had access to classified Defendants have proffered Accordingly, the motion of plaintiffs Ghafoor 13 1 and Belew for statutory damages is GRANTED. 2 plaintiffs Ghafoor and Belew shall each recover liquidated damages 3 in the amount of $20,400. 4 The court ORDERS that The distribution of any funds to plaintiff Al-Haramain is 5 impossible because Al-Haramain’s assets are blocked as a result of 6 its designation as a SDGT organization. 7 (66 CFR 49,079), issued pursuant to the International Emergency 8 Economic Powers Act (50 USC §§ 1701 et seq), authorizes the 9 Secretary of Treasury to designate any foreign person or group Executive Order No 13,224 United States District Court For the Northern District of California 10 engaging in or supporting terrorist activities as a SDGT and block 11 all assets of such person or group. 12 decree, lien, execution, garnishment, or other judicial process is 13 null and void with respect to any property in which on or since the 14 effective date there existed an interest of a person whose property 15 or interests in property are blocked.” 16 “[A]ny attachment, judgment, 31 CFR 594.202. Al-Haramain challenged its 2004 SDGT designation in an 17 action filed in the United States District Court for the District 18 of Oregon. 19 Dept of the Treasury, 585 F Supp 2d 1233, 1239 (D Or 2008). 20 court found that the OFAC’s designation was proper and dismissed 21 the complaint. 22 United States Dept of the Treasury (“Al-Haramain II”), 2009 US Dist 23 LEXIS 103373 at *52-53 (D Or). 24 Ninth Circuit. 25 below in the discussion of punitive damages, there is ample 26 evidence supporting Al-Haramain’s designation as a SDGT. 27 28 Al-Haramain Islamic Foundation, Inc v United States The Id at 1273; Al-Haramain Islamic Foundation, Inc v Al-Haramain has appealed to the Doc #727/119 at 13 n11. As explained more fully FISA specifies that a “foreign power or an agent of a foreign power” is not eligible to recover damages under the 14 1 statute. 2 power” and specifically includes “a group engaged in international 3 terrorism or activities in preparation therefor.” 4 1801(a)(4). 5 that Al-Haramain provided aid and support to terrorist 6 organizations. 7 Haramain was designated a SDGT organization, demonstrate that Al- 8 Haramain is a “foreign power” that has engaged in “international 9 terrorism or activities in preparation therefor” as defined in the 50 USC § 1810. The statute broadly defines “foreign 50 USC § As described in section IIC2, the OFAC has determined These activities, coupled with the fact that Al- United States District Court For the Northern District of California 10 FISA statute. 11 therefore not entitled to recover any damages in this action. 12 50 USC §§ 1801(a)(4), 1810. Al-Haramain is Plaintiffs propose that, in lieu of a transfer of 13 compensatory damages to Al-Haramain’s blocked account, the court 14 order a cy pres distribution “to one or more other charitable 15 organizations whose missions are ‘consistent with the nature of the 16 underlying action.’” 17 Product Liab Litig, 818 F2d 179, 186 (2d Cir 1987)). 18 cy pres argument fails at the threshold because, as described 19 above, Al-Haramain is a “foreign power” under FISA and is therefore 20 not entitled to any award of damages. 21 Haramain were entitled to recover damages, because Al-Haramain is a 22 SDGT “any damages awarded to [Al-Haramain] would constitute assets 23 in which it has a property interest, and any transfer of that 24 interest by court order to any party would still be subject to the 25 blocking and licensing requirement under CFR §§ 594.201(a), 26 202(b).” 27 28 Doc #122 at 21 (quoting In re Agent Orange Plaintiffs’ Moreover, even if Al- Doc #730 at 26 n22. The cy pres doctrine is “a rule of construction used to preserve testamentary charitable gifts that otherwise would fail.” 15 1 Democratic Cent Comm of Dist of Columbia v Washington Metro Area 2 Transit Comm’n, 84 F3d 451, 455 n1 (DC Cir 1996). 3 been extended by some courts to class actions, where undistributed 4 damage or settlement funds may be distributed to the “next best” 5 use when plaintiffs cannot be compensated individually. 6 “The object of applying funds to the ‘next best’ class is to 7 parallel the intended use of the funds as nearly as possible by 8 maximizing the number of plaintiffs compensated.” 9 omitted). United States District Court For the Northern District of California 10 The doctrine has Id at 455. Id (citation Plaintiffs have provided no precedent applying the cy 11 pres doctrine to the distribution of a damages award in 12 circumstances analogous to those at bar. 13 require the court to speculate as to the “intended use of the 14 funds” and the degree to which the missions of charitable 15 organizations are “consistent with the nature of the underlying 16 action.” 17 Orange, 818 F2d at 186. 18 any compelling reason, the court declines to apply the cy pres 19 doctrine in this case. 20 21 To do so here would Democratic Cent Comm of DC, 84 F3d at 455 n1; In re Agent In the absence of any legal authority and Accordingly, the court DENIES plaintiff Al-Haramain’s motion for recovery of statutory damages. 22 23 B 24 Plaintiffs seek two types of equitable relief. First, 25 plaintiffs seek a declaration that defendants’ warrantless 26 electronic surveillance of plaintiffs was unlawful as a violation 27 of FISA. 28 that: Doc #723/117. Second, plaintiffs seek an order directing 16 1 [I]nformation obtained by means of plaintiffs’ unlawful electronic surveillance shall not be used by the United States government, either directly or derivatively, in any administrative, civil or criminal proceeding in which the United States is a party. Upon the final resolution of all such proceedings potentially involving such information, all files and records containing such information shall be purged and destroyed, except to the extent that defendants may have an existing legal obligation to preserve exculpatory evidence. 2 3 4 5 6 7 Doc #723/117 at 3. 8 entitled to either form of equitable relief. 9 Defendants argue that plaintiffs are not Doc #727/119. The court first turns to plaintiffs’ request for a United States District Court For the Northern District of California 10 declaration that the warrantless electronic surveillance of 11 plaintiffs was unlawful as a violation of FISA. 12 that FISA does not authorize the entry of any declaratory relief. 13 Doc #727/119. 14 cannot issue if the “program or activity” no longer exists. 15 #727/119. 16 Defendants argue Defendants further argue that a declaratory judgment Doc It is unnecessary to decide whether and under what 17 circumstances FISA authorizes the entry of a declaratory judgment 18 because the equitable relief sought by plaintiffs is neither 19 necessary nor appropriate. 20 March 31 order that plaintiffs established a prima facie case of 21 unlawful electronic surveillance in violation of FISA. 22 #721/115 at 3. 23 damages and attorney fees based on defendants’ actions. 24 declaration that defendants’ actions were illegal would not provide 25 plaintiffs with any additional relief or remedy. This court already determined in its Doc In the present order, the court awards compensatory A 26 Furthermore, because the TSP under which plaintiffs were 27 monitored in violation of FISA ended in January 2007, Doc #668/103 28 at 18, there is no reason to believe that plaintiffs will be 17 1 subjected to the same injury in the future. 2 declaratory judgment is available only when there is “a substantial 3 controversy, between parties having adverse legal interests, of 4 sufficient immediacy and reality.” 5 108 (1969). 6 real and immediate threat of injury necessary to make out a case or 7 controversy.” 8 Accordingly, plaintiffs’ request that the court declare defendants’ 9 actions unlawful is DENIED. United States District Court For the Northern District of California 10 Under 28 USC § 2201, a Golden v Zwickler, 394 US 103, “[P]ast wrongs do not in themselves amount to that City of Los Angeles v Lyons, 461 US 95, 103 (1983). Plaintiffs’ second request for equitable relief seeks an 11 order prohibiting the United States government from using any 12 information obtained during the surveillance at issue and ordering 13 the destruction of such information. 14 relief, there must be an “actual controversy” before the court. 15 USC § 2201. 16 Again, to enter declaratory 28 No such controversy exists here. As authority for their request, plaintiffs cite a section 17 of FISA authorizing the suppression of certain “unlawfully 18 acquired” evidence. 19 authorized by FISA is limited to situations in which evidence 20 obtained or derived from unlawful surveillance is used against an 21 “aggrieved person” in “any trial, hearing, or other proceeding in 22 or before any court, department, officer, agency, regulatory body, 23 or other authority of the United States [or] a State.” 24 1806(e). 25 authority in that proceeding, evidence determined to be acquired 26 unlawfully will be suppressed. 27 has brought a motion to suppress evidence in an ongoing “trial, 28 hearing, or other proceeding.” Doc #723/117 at 2. The suppression remedy 50 USC § Upon the motion of the “aggrieved person” to the 50 USC § 1806(g). 50 USC § 1806(e). 18 No party here Plaintiffs’ 1 request to have evidence “suppressed” for purposes of other, 2 unnamed proceedings is not authorized by section 1806(e) or (g). 3 Furthermore, the suppression remedy provided by section 1806 does 4 not authorize the court to order expungement of records in the 5 government’s possession, and no other provisions of FISA authorize 6 such a remedy. 7 information be suppressed and expunged is DENIED. For these reasons, plaintiffs’ request that the 8 9 C United States District Court For the Northern District of California 10 Plaintiffs seek punitive damages in the amount of 11 $183,600 per plaintiff. 12 that an “aggrieved person, other than a foreign power or an agent 13 of a foreign power * * * who has been subjected to an electronic 14 surveillance * * * in violation of Section 1809 of this title * * * 15 shall be entitled to recover * * * punitive damages.” 16 1810. 17 electronic surveillance and are therefore liable for punitive 18 damages. Doc #723/117. The FISA statute provides 50 USC § 19 Plaintiffs claim that defendants conducted unauthorized As a threshold matter, plaintiff Al-Haramain is not 20 eligible to recover punitive damages. 21 Al-Haramain is a “foreign power” as defined in FISA and is 22 therefore exempted from recovery of punitive damages. 23 1810. 24 DENIED. 25 damages brought by plaintiffs Belew and Ghafoor. As explained in section IIA, 50 USC § Al-Haramain’s motion for punitive damages is therefore The court will thus turn to the claims for punitive 26 27 28 1 It is settled law that municipalities are not liable for 19 1 punitive damages. 2 municipalities are not liable for punitive damages “unless 3 expressly authorized by statute.” 4 rel Chandler, 539 US 119, 129 (2003) (quoting Newport v Fact 5 Concerns, Inc, 453 US 247, 260 n21 (1981)). 6 both by a long history in the common law and by logic. 7 damages serve the purpose “of punishing the defendant, of teaching 8 him not to do it again, and of deterring others from following his 9 example.” In the context of cities and counties, Cook County v United States ex This rule is supported Punitive Protectus Alpha Navigation Co v North Pacific Grain United States District Court For the Northern District of California 10 Growers, Inc, 767 F2d 1379, 1385 (9th Cir 1985) (quoting Prosser, 11 The Law of Torts § 2, at 9 (1971)). 12 served by imposing penalties upon the taxpayers of a city or county 13 rather than the officials who are directly responsible for 14 wrongdoing. 15 against the United States and its agencies, and the Supreme Court 16 has expressed its concern with “imposing punitive damages on 17 taxpayers under any circumstances.” 18 Resources v United States ex rel Stevens, 529 US 765, 785 n15 19 (2000). 20 None of these purposes is well The same reasoning applies to punitive damage awards Vermont Agency of Natural The primary retributive purpose of punitive damages is 21 not advanced by laying the burden of punishment “upon the shoulders 22 of blameless or unknowing taxpayers.” 23 Punitive damages are not intended to compensate the injured 24 plaintiff, and in such a situation they “are in effect a windfall 25 to a fully compensated plaintiff, and are likely accompanied by an 26 increase in taxes or a reduction of public services for the 27 citizens footing the bill.” 28 retribution, it is the wrongdoer himself who is made to suffer for Id. Newport, 453 US at 267. “Under ordinary principles of 20 1 his unlawful conduct,” and “neither reason nor justice” suggests 2 that taxpayers should suffer for the malicious acts of their 3 officials. 4 Id. The deterrent purpose of punitive damages is also ill 5 served by imposing punitive damages upon the government. 6 from clear that government officials will be meaningfully deterred 7 from future acts of official conduct by the fear that punitive 8 damages may be imposed upon the government. 9 awards of punitive damages against municipalities or other It is far It is possible that United States District Court For the Northern District of California 10 governments may “induce voters to condemn official misconduct 11 through the electoral process,” but there is “no reason to suppose 12 that corrective action, such as the discharge of offending 13 officials who were appointed and the public excoriation of those 14 who were elected, will not occur unless punitive damages are 15 awarded against the municipality.” 16 Newport, 453 US at 268. Plaintiffs have requested punitive damages against four 17 officials in their official capacities — President Barack Obama, 18 NSA Director Keith Alexander, OFAC Director Adam Szubin and FBI 19 Director Robert Mueller — as well as the NSA, the OFAC and the FBI 20 as entities. 21 official capacity “is not a suit against the official but rather is 22 a suit against the official’s office,” and is therefore a suit 23 against the government. 24 US 58, 71 (1989) (quoting Brandon v Holt, 469 US 464, 471 (1985)). 25 Notably, none of the named defendants except Mueller held his 26 office during the time of the illegal conduct at issue in this 27 case. This helps to illustrate the illogic of punitive damages 28 here. An award of punitive damages against the current president Doc #723/117 at 2. A suit against an officer in his Will v Michigan Dept of State Police, 491 21 1 based on the actions of his predecessor serves no coherent 2 retributive or deterrent purpose. 3 Plaintiffs argue that FISA expressly authorizes punitive 4 damages against the United States. 5 has previously ruled that the United States is included in the FISA 6 definition of “person” and that sovereign immunity has therefore 7 been waived. 8 Supp 2d 1109, 1124-25 (ND Cal 2008). 9 same reasoning exposes the government to punitive damages. Doc #729/122 at 12. This court In re National Security Telecom Records Litig, 564 F Plaintiffs argue that the Doc United States District Court For the Northern District of California 10 #729/122 at 12. 11 aggrieved person “shall be entitled to recover” actual or 12 liquidated damages, punitive damages and attorney fees from “any 13 person who committed such violation,” and does not explicitly 14 exempt the United States from punitive damages. 15 is by no means an express authorization of punitive damages. 16 court must assume that Congress is aware of existing law — 17 including the presumption against awarding punitive damages against 18 the government — when it passes legislation. 19 Corp, 498 US 19, 32 (1990). 20 to overturn long-established legal principles unless such intention 21 plainly appears in the statute. 22 Statutes § 97. 23 standing presumption against awarding punitive damages against the 24 government. 25 overturn the general presumption that it is not appropriate to 26 award punitive damages against the government. 27 // 28 // The plain text of 50 USC § 1810 states that an But this language The Miles v Apex Marine The legislature will not be presumed See 73 American Jurisprudence 2d, Congress must surely have been aware of the long- Nothing in the text of FISA can be read to explicitly 22 1 2 2 Even if this court were to determine that Congress had 3 authorized punitive damages against the United States under FISA, 4 punitive damages would not be appropriate here. 5 admit, FISA does not explicitly provide for mandatory recovery of 6 punitive damages. 7 silent as to how a court should decide whether to award punitive 8 damages in a given case. 9 statute offers no guidance as to the specific standard a court is As plaintiffs Both parties concede that section 1810(b) is Doc ##729/122 at 13 (explaining that “the United States District Court For the Northern District of California 10 to apply when deciding whether to award such damages in a 11 particular case”); 730/123 at 15 (“Section 1810 does not provide 12 any standard governing the determination of whether punitive 13 damages should be awarded”). 14 elucidates the standard that applies to an award of punitive 15 damages under FISA. 16 Moreover, no judicial precedent Doc #730/123 at 15. Plaintiffs instead look to a statutory analogue, 42 USC § 17 1983 (“section 1983”), which concerns damages actions against 18 government officials for depriving persons of federally secured 19 rights. 20 argument, that section 1983 provides a proper analogy. 21 #730/123 at 15. 22 awarded for conduct found to be malicious, oppressive or in 23 reckless disregard of a plaintiff’s rights. 24 US 30, 56 (1983). 25 may be appropriate “when the defendant’s conduct is shown to be 26 motivated by evil motive or intent, or when it involves reckless or 27 callous indifference to the federally protected rights of others.” 28 Id. Doc #729/122 at 13-14. Defendants assume, for the sake of Doc Under section 1983, punitive damages may be See Smith v Wade, 461 Stated somewhat differently, punitive damages Further, any award of punitive damages must be based on harm 23 1 caused by the defendants to the plaintiffs specifically, as opposed 2 to nonparties to the action. 3 346, 353-55 (2007). 4 Philip Morris USA v Williams, 549 US The punitive damages standard articulated in Wade was 5 drawn from the common law of torts “with such modification or 6 adaptation as might be necessary to carry out the purpose and 7 policy of [section 1983].” 8 “no reason why a person whose federally guaranteed rights have been 9 violated should be granted a more restrictive remedy than a person Wade, 461 US at 34. The Court, finding United States District Court For the Northern District of California 10 asserting an ordinary tort cause of action,” held that no such 11 modification or adaptation was necessary. 12 Id at 48-49. This reasoning applies equally to FISA, which was enacted 13 primarily to safeguard the constitutional rights of United States 14 citizens. 15 Operations with Respect to Intelligence Activities (“Church 16 Committee Report”) Book II: Intelligence Activities and the Rights 17 of Americans, S Rep No 94-755, 289 (1976); Doc #453/33 at 10-14. 18 Accordingly, this court will consider plaintiffs’ request for 19 punitive damages under FISA using the common law standard for 20 awarding punitive damages as restated in Wade. 21 found defendants liable for violating FISA for a period of 204 days 22 between February 19, 2004 and September 9, 2004. 23 must be based on this particular conduct and not on any larger 24 pattern of misconduct. 25 See Senate Select Committee to Study Governmental This court has Punitive damages Plaintiffs argue that “defendants conducted plaintiffs’ 26 unlawful surveillance in reckless disregard of their rights, having 27 acted ‘in the face of a perceived risk’ that the surveillance would 28 ‘violate the plaintiff’s rights under federal law.’” 24 Doc #729/122 1 at 16 (quoting Model Civ Jury Instr 9th Cir 5.5 (2008)). 2 plaintiffs argue that the “unlawful surveillance was oppressive in 3 that it occurred ‘by misuse or abuse of authority or power.’” 4 #729/122 at 17 (quoting Dang v Cross, 422 F3d 800, 809-10 (9th Cir 5 2005)). 6 Further, Doc The court cannot find that the surveillance of plaintiffs 7 in 2004 pursuant to the TSP involved “reckless or callous 8 indifference to [their] federally protected rights.” 9 at 56. Smith, 461 US The record shows that the government had reason to believe United States District Court For the Northern District of California 10 that Al-Haramain supported acts of terrorism and that critical 11 intelligence could be obtained by monitoring Al-Haramain. 12 Haramain, 585 F Supp 2d at 1251-53. 13 plaintiff Al-Haramain is Al-Haramain Islamic Foundation (“AHIF”).2 14 AHIF is headquartered in Saudi Arabia and has had operations in as 15 many as fifty countries “providing support for the [al-Qa’ida] 16 network and promoting militant Islamic doctrine worldwide.” 17 1241. 18 financing terrorist attacks against United States embassies in 19 Kenya and Tanzania and attempted attacks against United States 20 consulates in India. 21 Secretary of Treasury designated numerous AHIF divisions around the 22 world as SDGTs. 23 2004. The parent organization of Id at Among other activities, AHIF was involved in planning and Id. Id. Beginning in 2002, the United States AHIF was designated as a SDGT on September 9, Id at 1245-46. 24 25 Al- Al-Haramain was founded in Oregon between 1997 and 1999. Id at 1243. In March 2000, Al-Haramain transferred $150,000 to 26 27 28 2 The Oregon branch of Al-Haramain, a plaintiff in this case, is consistently referred to as “Al-Haramain” in this order. Its parent organization is consistently referred to as “AHIF.” 25 1 AHIF, which the OFAC believed was used to support terrorist 2 activities by the Chechen mujahideen. 3 4/99-4 at 34-36. 4 February 2004 and first designated Al-Haramain as a SDGT on 5 September 9, 2004. Al-Haramain, 585 F Supp 2d at 1245-46; Doc 6 #721/115 at 38-39. Soliman al-Buthi, a founding member, was also 7 designated a SDGT in September 2004. 8 1242. 9 including the provision of funds that the OFAC believed were used Id at 1243-45; Doc #657- The OFAC began investigating Al-Haramain in Al-Haramain, 585 F Supp 2d at Given the connections between Al-Haramain and AHIF, United States District Court For the Northern District of California 10 to support terrorist activities, the court does not find that 11 defendants’ surveillance of Al-Haramain was conducted in reckless 12 disregard for plaintiffs’ rights. 13 While the facts show a clear dispute among DOJ and White 14 House officials over the legality of some PSP activities, the 15 evidence does not demonstrate that defendants knowingly acted in 16 the face of a significant risk that their actions violated 17 plaintiffs’ rights. 18 this case, defendants relied upon legal analyses by the OLC 19 supporting the legality of the TSP. 20 11, 2004, the TSP was operating under the authorization of the 21 president and the certification of the attorney general. 22 2/104-2 at 16-18, 25, 31-32. 23 had provided an analysis supporting the legality of the TSP and 24 other PSP activities. 25 Goldsmith began to share their concerns about the legality of some 26 PSP activities with Ashcroft and White House officials. 27 concerns remained a matter of internal discussion and debate within 28 the Office of Legal Counsel and in no way altered its prior Importantly, for the entire period at issue in Id. Between late 2001 and March Doc #671- Yoo in the Office of Legal Counsel After Yoo resigned in 2003, Philbin and 26 But these 1 official analysis stating that the PSP was legal. 2 In early 2004, various officials, including Ashcroft, 3 Comey and Mueller, continued to voice concern regarding Yoo’s 4 analysis of the PSP. 5 undisclosed “other activities” authorized under the PSP, not the 6 TSP (the program at issue here). 7 White House Counsel Gonzales expressed disagreement with such 8 criticisms, and the President reauthorized the PSP without the 9 certification of the Attorney General on March 11, 2004. These concerns focused primarily on still- Doc #671-2/104-2 at 26-31. Then- Id. On United States District Court For the Northern District of California 10 March 17, 2004, however, President Bush discontinued certain PSP 11 activities that the DOJ believed were not legally supported. 12 34. 13 the newly-modified PSP (including the TSP) and found it to be 14 legally supported by the 2001 AUMF. 15 repudiated this analysis or conclusion. 16 high-level disagreement over the legality of certain aspects of the 17 PSP, there is no basis to find that defendants acted in the face of 18 a significant risk that their actions violated plaintiffs’ legal 19 rights or that defendants engaged in “misuse or abuse of authority 20 or power.” 21 Id at On May 6, 2004, Goldsmith and Philbin completed an analysis of Id. The DOJ has never Therefore, despite the Plaintiffs repeatedly emphasize the weakness of the legal 22 rationales advanced for the TSP and have apparently inferred that 23 defendants acted in bad faith. 24 that plaintiffs established a prima facie case that defendants’ 25 actions were in violation of FISA and that defendants did not rebut 26 this showing. 27 difficult than plaintiffs allow. 28 This court has, of course, held Questions of defendants’ intent, however, are more For the reasons made clear momentarily, the court has 27 1 little difficulty concluding that the government’s conduct here 2 does not merit imposition of punitive damages. 3 however, the undersigned must acknowledge that the facts of this 4 case, at a minimum, do not cast a flattering light on certain 5 executive branch officials. 6 weakness of Yoo’s legal analysis, it is disquieting that for more 7 than a year and a half, sole responsibility for determining the 8 legality of the TSP was reposed in a single official. 9 In doing so, Wholly apart from the apparent This aside, it is essential to remember that the precise United States District Court For the Northern District of California 10 limits of the president’s power to act in defense of the nation are 11 not specifically delineated, and due to the nature of our 12 Constitution will never be spelled out in every detail. 13 Intelligent and sincere officials disagree about the scope of these 14 powers, and the existence of such disagreement should not in every 15 case prevent action from being taken. 16 senior executive branch officials responsible for national security 17 necessarily bear some risk that their actions may one day be held 18 to be unlawful; they must balance this risk against the harm that 19 may come to the nation if they fail to act. 20 the constitutional duty to apply the law in cases before it and 21 hold violators accountable, it need not mete out punitive measures 22 on officials for perceived “recklessness” in dealing with a 23 serious, proven threat to the national security. The president and other While the court has 24 For these and the foregoing reasons, the motion of 25 plaintiffs Ghafoor and Belew for punitive damages is DENIED. 26 27 28 D As the prevailing parties on their claims under FISA, 28 1 plaintiffs Ghafoor and Belew may recover their reasonable attorney 2 fees and costs of suit. 3 that FISA provides for fee-shifting to a prevailing plaintiff. 4 Defendants contend, however, that an award of attorney fees and 5 costs is premature and, in any event, dispute plaintiffs’ 6 calculation of attorney fees and costs. 7 50 USC § 1810. Defendants do not dispute As discussed in section IIA, Al-Haramain is a “foreign 8 power” as defined by FISA. 9 powers from recovery of attorney fees and expenses. FISA specifically exempts foreign United States District Court For the Northern District of California 10 (b) and (c). 11 50 USC §§ 1810 litigation expenses is therefore DENIED. 12 The motion of Al-Haramain for attorney fees and The court thus turns to the claims for attorney fees and 13 expenses brought by plaintiffs Belew and Ghafoor. 14 defendants’ protestations, it is not premature to address this 15 issue. 16 “[u]nless * * * a court order provides otherwise,” a motion for 17 attorney fees must be filed “no later than 14 days after the entry 18 of judgment.” 19 committee specifically state that the rule “permits the court to 20 require submissions of fee claims in advance of entry of judgment.” 21 FRCP 54, Notes of Advisory Committee on 1993 amendments. 22 the court has granted a motion for summary judgment on the issue of 23 liability, defendants claim that they cannot fully address the 24 reasonableness of a fee award without knowing the specific amount 25 of damages awarded. 26 argued at length that the amount requested by plaintiffs is 27 excessive and unreasonable even if the full amount of damages 28 sought is obtained and have specifically addressed the Despite The Federal Rules of Civil Procedure establish that FRCP 54(d)(2)(B)(i). The notes of the advisory Doc #746/131 at 8-9. 29 Although But defendants have 1 proportionality of the requested fee in relation to various 2 hypothetical damages awards. 3 effectively disputed plaintiffs’ attorney fee motion, defendants’ 4 argument that it is premature to address the issue fails. 5 Doc #746/131 at 7-9, 16-17. Having Plaintiffs propose that the fee award be calculated by a 6 straightforward application of the lodestar approach. 7 at 3. 8 reasonably expended on the litigation” by “a reasonable hourly 9 rate.” Doc #738/128 This approach starts by multiplying “the number of hours Hensley v Eckerhart, 461 US 424, 433 (1983). This method United States District Court For the Northern District of California 10 has “achieved dominance in the federal courts” and has “become the 11 guiding light of [the Supreme Court’s] fee-shifting jurisprudence.” 12 Perdue v Kenny A, 130 S Ct 1662, 1672 (2010) (quoting Gisbrecht v 13 Barnhart, 535 US 789, 801 (2002)). 14 15 16 1 To determine reasonable hourly rates in a case involving 17 attorneys with widely varying experience and billing rates, this 18 court uses the well-established Laffey matrix. 19 Northwest Airlines, Inc, 572 F Supp 354 (DDC 1983), aff’d in part, 20 rev’d in part on other grounds, 746 F2d 4 (DC Cir 1984). 21 matrix compiles average billing rates for attorneys in the District 22 of Columbia area, divided into categories based on years of 23 experience. 24 ision/Laffey_Matrix_8.html. 25 District of Columbia differs from that of other cities, the court 26 will adjust the rates to the appropriate locality using the federal 27 locality pay differentials based on federally compiled cost of 28 living data. See Laffey v This See http://www.justice.gov/usao/dc/Divisions/Civil_Div Because the cost of living in the See, for example, In re HPL Technologies, Inc 30 1 Securities Litigation, 366 F Supp 2d 912, 921 (ND Cal 2005). 2 Defendants argue that the Laffey rates should be adjusted 3 for the locality in which each of plaintiffs’ attorneys operates 4 rather than for the locality where the district court sits. 5 #746/131 at 26. 6 the locality of the district court in one unusual case involving 7 two actions pending simultaneously in two district courts, see 8 Martin v FedEx Ground Package System, 2008 WL 5478576, *1-2, 7 (ND 9 Cal 2008), the Ninth Circuit has held that “[g]enerally, when Doc Although the undersigned declined to adjust for United States District Court For the Northern District of California 10 determining a reasonable hourly rate, the relevant community is the 11 forum in which the district court sits.” 12 Schwarzenegger, 608 F3d 446, 454-55 (9th Cir 2010) (quoting Camacho 13 v Bridgeport Fin, Inc, 523 F3d 973, 979 (9th Cir 2008)). 14 Accordingly, the court will use the San Francisco Bay area as the 15 locality in computing all rates. 16 Prison Legal News v Plaintiffs propose that the court use the current hourly 17 rates from the Laffey matrix for all the hours worked going back to 18 2005. 19 the discretion to apply current rates to all hours billed over the 20 course of the litigation as a means of compensating a plaintiff’s 21 attorney for the delay in payment. 22 Co, 480 F3d 942, 947 (9th Cir 2007) (citing In re Wash Pub Power 23 Sys Sec Litig, 19 F3d 1291, 1305 (9th Cir 1994)). 24 court may use the attorney’s historical rates and add an 25 enhancement in the form of interest based on the prime rate. 26 But this principle of compensating for delay does not apply in 27 suits against the United States. 28 interest rule” holds that “[i]n the absence of express Doc #748/132 at 19. As a general matter, a trial court has Welch v Metropolitan Life Ins Alternately, a Id. Rather, the longstanding “no- 31 1 congressional consent to the award of interest separate from a 2 general waiver of immunity to suit, the United States is immune 3 from an interest award.” 4 314 (1986). 5 at current rates is tantamount to an award of interest. 6 Sorenson v Mink, 239 F3d 1140, 1148 (9th Cir 2001).3 7 Congress has not consented to an award of interest in cases such as 8 this, the court is constrained to use historical rates. 9 there is a relatively modest difference between the use of current Library of Congress v Shaw, 478 US 310, In the Ninth Circuit’s view, an award of attorney fees See Because Moreover, United States District Court For the Northern District of California 10 rates ($2,724,355.79) compared to historical rates ($2,515,387.09). 11 Because the weight of authority supports the use of historical 12 rates and because the difference between the two awards is not 13 great, the attorney fees here will be calculated based on 14 historical rates. 15 To calculate the amount of compensation for each attorney 16 for each year the court must first determine each attorney’s years 17 of experience and then find the rate for the appropriate year in 18 the Laffey matrix. 19 federal locality pay differential for that year. 20 http://www.opm.gov/oca/10tables/index.asp and linked pages for 21 historical data. 22 hours the attorney worked in that year. This rate must then be adjusted based on the See Finally, this rate is multiplied by the number of The Laffey matrix provides 23 3 24 25 26 27 28 The Ninth Circuit appears to conflate compensation for the delay in payment with compensation for the erosion in the value of money (inflation). But the concepts are distinct; the former typically takes the form of interest while the latter typically entails a price or cost of living adjustment. Where litigation spans a lengthy period or interest rates are high, or both, using current billing rates instead of historical billing rates with interest can significantly under-compensate prevailing parties or their counsel. See Theme Promotions, Inc v News America Marketing FSI, Inc, __ F Supp 2d __, 2010 WL 2464961 (ND Cal 2010). 32 1 billing data for each year starting with June 1 and running to the 2 following May 31. 3 is calculated based on the same dates. 4 differential and the attorney’s years of experience are calculated 5 based on the later date; for example, for the Laffey year June 1, 6 2009 - May 31, 2010, both the locality pay and years of experience 7 are calculated using 2010 data. 8 Laffey year, June 1, 2010 - May, 31, 2011; because 2011 locality 9 pay information is not yet available, data from 2010 are used. United States District Court For the Northern District of California 10 Accordingly, the number of hours worked per year The federal locality pay The only exception is the final Table 1: Years of Experience of Plaintiffs’ Counsel 11 Name 12 2006 2007 2008 2009 2010 Eisenberg 27 28 29 30 31 13 Hancock 24 25 26 27 28 14 Goldberg 31 32 33 34 35 15 Nelson 33 34 35 36 37 Jaskol 18 19 20 21 22 Hassan 10 11 12 13 14 Albies 1 2 3 4 5 Kreuscher 0 1 2 3 4 16 17 18 19 Table 2: Laffey Rates for Plaintiffs’ Counsel 20 2005-06 2006-07 2007-08 2008-09 2009-10 2010-11 Eisenberg $405 $425 $440 $465 $465 $475 Hancock $405 $425 $440 $465 $465 $475 Goldberg $405 $425 $440 $465 $465 $475 24 Nelson $405 $425 $440 $465 $465 $475 25 Jaskol $360 $375 $440 $465 $465 $475 26 Hassan $290 $375 $390 $410 $410 $420 27 Albies $195 $205 $215 $270 $270 $275 Kreuscher $195 $205 $215 $225 $270 $275 21 22 23 28 Name 33 1 Table 3: Federal Locality Pay Differentials and Adjustments4 2 Year San Francisco Washington, DC Adjustment 3 2010 35.15% 24.22% 8.80% 4 2009 34.35% 23.10% 9.14% 5 2008 32.53% 20.89% 9.63% 6 2007 30.33% 18.59% 9.90% 2006 28.68% 17.50% 9.52% 7 Table 4: Laffey Rates Adjusted to San Francisco 8 9 2005-06 2006-07 2007-08 2008-09 2009-10 2010-11 10 United States District Court For the Northern District of California Name Eisenberg $443.56 $467.07 $482.37 $507.50 $505.91 $516.79 11 Hancock $443.56 $467.07 $482.37 $507.50 $505.91 $516.79 Goldberg $443.56 $467.07 $482.37 $507.50 $505.91 $516.79 Nelson $443.56 $467.07 $482.37 $507.50 $505.91 $516.79 Jaskol $394.27 $412.12 $482.37 $507.50 $505.91 $516.79 Hassan $317.61 $412.12 $427.55 $447.47 $446.08 $456.96 15 Albies $213.56 $225.29 $235.70 $294.68 $293.76 $299.20 16 Kreuscher $213.56 $225.29 $235.70 $245.56 $293.76 $299.20 12 13 14 17 18 2 19 Plaintiffs have submitted affidavits from the eight 20 attorneys who worked on the case summarizing the various tasks 21 performed and the number of hours spent on each task. 22 ##738-1/128-1 to 738-8/128-8; 748/132 at 20 n8. 23 matrix provides billing data for each year starting with June 1 24 (and ending the following May 31), the hours worked by each 25 attorney have been divided in the same way. See Doc Because the Laffey When a summarized task 26 4 27 28 The adjustment represents the percentage by which the Washington, DC rate must be multiplied to calculate the San Francisco rate, that is: ((100 + SF) - (100 + DC)) / (100 + DC). For example, for 2010, (135.15 - 124.22)/(124.22) = 8.80. 34 1 fell into more than one year, the hours were counted toward the 2 year in which the task ended. 3 each lawyer for each Laffey year is given in the first table below; 4 the combined number of hours is 5518.8. 5 contains the total fee award for each attorney and combined. 6 The total number of hours worked by The second table below Table 5: Hours Worked by Plaintiffs’ Counsel by Laffey Years Name 2005-06 2006-07 2007-08 2008-09 2009-10 2010-11 8 Eisenberg 129.1 582.9 630.8 688.9 409.4 97.9 9 Hancock 0 30.1 72.2 55.9 64.7 18.9 10 United States District Court For the Northern District of California 7 Goldberg 89 137.2 176.5 123.2 123.8 41.3 11 Nelson 273.8 287.2 200.8 34 113 7.1 Jaskol 38 124 39.4 62.2 15.4 13.1 Hassan 78.2 94.4 73 51 33.4 17.7 Albies 139.3 174.9 55.5 21.7 66.6 12.9 Kreuscher 0 18.5 0 0 0 1.9 12 13 14 15 Table 6: Attorney Fee Award by Individual and Total 16 17 Name Attorney fee award Jon B Eisenberg 18 $1,241,127.74 William N Hancock $119,754.88 Steven Goldberg $335,196.23 20 Thomas H Nelson $430,541.17 21 Lisa Jaskol $131,217.98 22 Zaha S Hassan $140,760.61 23 J Ashlee Albies $112,052.13 19 24 25 Kenneth A Kreuscher $4,736.35 TOTAL $2,515,387.09 26 Defendants argue that the number of hours for which 27 plaintiffs seek compensation is unreasonable for a variety of 28 reasons. Defendants first claim that “the documentation provided 35 1 by plaintiffs is plainly inadequate” because plaintiffs have 2 provided declarations summarizing their work rather than 3 contemporaneous billing records. 4 have complied with Local Rule 54-5, which requires that a motion 5 for attorney fees be supported by “declarations or affidavits” 6 containing a “statement of the services rendered by each person for 7 whose services fees are claimed together with a summary of the time 8 spent by each person.” 9 that a prevailing party “should maintain billing time records in a Doc #746/131 at 5. Plaintiffs Defendants imply that Hensley, which holds United States District Court For the Northern District of California 10 manner that will enable a reviewing court to identify distinct 11 claims,” effectively nullifies the rule by requiring a district 12 court in every case to examine such detailed billing records. 13 Hensley, 461 US at 437. 14 time records, see Doc #748/132 at 7, and Local Rule 54-5 allows a 15 court to require production of these for in camera inspection. 16 Such a production is not necessary here. 17 difficulty in determining from plaintiffs’ detailed billing 18 summaries that their legal work was related to the successful FISA 19 claims of Ghafoor and Belew. 20 even though only these two plaintiffs ultimately have succeeded on 21 only one of their original six claims, all of the claims “involve a 22 common core of facts or [are] based on related legal theories” and 23 therefore “cannot be viewed as a series of discrete claims.” 24 Hensley, 461 US at 435. 25 Plaintiffs have maintained contemporaneous The court has no As discussed in more detail below, Defendants similarly object to plaintiffs’ summaries as a 26 form of “block billing.” 27 to plaintiffs’ sworn declarations, detailed contemporaneous time 28 records have in fact been kept throughout the litigation and may be Doc #746/131 at 5. 36 But again, according 1 reviewed by the court. 2 required by the local rules does not amount to an objectionable 3 form of “block billing.” 4 Using these records to create the summaries Defendants maintain that plaintiffs’ fee award should be 5 reduced due to “overstaffing and duplicative work by multiple 6 counsel on the same task.” 7 that “[a]t most, a reasonable fee would compensate two attorneys” 8 for attending various hearings in this case. 9 lengthy procedural history makes clear, this case has been Doc #746/131 at 14. Defendants argue Id at 15. As the United States District Court For the Northern District of California 10 vigorously litigated. 11 government attorneys to attend hearings. 12 748/132 at 11-12. 13 different government attorneys to write briefs and to attend 14 hearings. 15 attorneys at a hearing is “reasonable” in the abstract, their own 16 litigation practices confirm that plaintiffs’ use of resources was 17 reasonable in this particular case. 18 litigate tenaciously and then be heard to complain about the time 19 necessarily spent by the plaintiff in response.” 20 Marshall, 641 F2d 880, 904 (DC Cir 1980). 21 Defendants frequently sent three or four Doc ##746/131 at 17; Indeed, defendants utilized at least twenty-two Doc #748/132 at 11. Even if defendants proved that two “The government cannot Copeland v The fact that seven attorneys seek compensation for 22 working on each of several important motions also does not 23 demonstrate the “excess” and “needless duplication” alleged by 24 defendants. 25 attorneys demonstrate that different attorneys worked on different 26 elements of the larger project. 27 12. 28 whose members each specialize in particular tasks. Doc #746/131 at 14. The declarations of plaintiffs’ See, for example, Doc #748/132 at This appears to be an efficient division of labor among a team 37 1 Defendants argue that plaintiffs have not attempted to 2 exercise billing judgment because they have “simply summarized all 3 of the hours and activities they undertook since 2006.” 4 #746/131 at 4-5. 5 ‘billing judgment’ with respect to hours worked.” 6 at 437. 7 Hensley” by suggesting that an attorney “should necessarily be 8 compensated for less than the actual number of hours spent 9 litigating the case.” Doc It is true that a fee applicant should “exercise Hensley, 461 US However, defendants’ argument “misreads the mandate of City of Riverside v Rivera, 477 US 561, 570 United States District Court For the Northern District of California 10 n4 (1986) (plurality). 11 hours for which an attorney seeks compensation be “reasonable.” 12 Id. 13 Rather, the law requires that the number of As Judge Kozinski has explained, “lawyers are not likely 14 to spend unnecessary time on contingency fee cases in the hope of 15 inflating their fees” because “[t]he payoff is too uncertain, as to 16 both the result and the amount of the fee.” 17 Sacramento, 534 F3d 1106, 1112 (9th Cir 2008). 18 court should defer to the winning lawyer’s professional judgment as 19 to how much time he was required to spend on the case; after all, 20 he won, and might not have, had he been more of a slacker.” 21 This reasoning is especially apt here. 22 parties to have obtained a liability finding on a FISA claim in 23 this multi-district litigation concerning warrantless electronic 24 surveillance. 25 would recover anything at all when this case began. 26 therefore unlikely that plaintiffs’ attorneys, believing that they 27 were probably working pro bono and trying to fit the case into a 28 schedule that also included work for paying clients, spent more Moreno v City of “By and large, the Id. Plaintiffs are the only Plaintiffs had little reason to believe that they 38 It is 1 time than they felt was absolutely necessary to win the case. 2 3 3 4 Defendants also argue that plaintiffs’ fee award should 5 not include “unproductive” or “unnecessary” hours. 6 3. 7 the grant of partial summary judgment on plaintiffs’ FISA claim.” 8 Doc #746/131 at 3. 9 the litigation that have been resolved in their favor — such as the Doc #746/131 at By this, defendants mean “hours that had no direct bearing on Defendants point to various issues throughout United States District Court For the Northern District of California 10 government’s successful assertion of the state secrets privilege, 11 plaintiffs’ failed attempts to obtain access to classified 12 information, plaintiffs’ failure in July 2008 to present enough 13 evidence to establish standing, and a handful of other motions — 14 and suggest that the hours spent on these issues should not be 15 compensated because they had no bearing on the grant of summary 16 judgment. 17 to the “mathematical approach comparing the total number of issues 18 in the case with those actually prevailed upon” that was rejected 19 in Hensley. 20 Doc #746/131 at 19-23. What defendants propose is close 461 US at 435 n11. To take one particular example, defendants argue that it 21 would be unreasonable for plaintiffs to be compensated for the time 22 spent between July 2008 and June 2009 fighting to gain access to 23 classified information because this dispute “ended in no access 24 being granted.” 25 plaintiffs never gained access to the information is that 26 defendants disobeyed direct court orders to negotiate an 27 appropriate protective order and to give plaintiffs’ counsel access 28 to some of the information once they had obtained security Doc #746/131 at 22-23. 39 Of course, the reason that 1 clearances. 2 because “the Court declined to enter any sanctions or issue a 3 protective order granting the disclosure of classified information 4 to plaintiffs’ counsel,” they essentially won the issue. 5 #746/131 at 23. 6 its own obdurate behavior and then protest that [plaintiffs’ 7 counsel] has spent too much time prosecuting the action.” 8 Lysaght & Sun v Drug Enforcement Admin, 951 F Supp 1413, 1426 (CD 9 Cal 1996). See Doc #721/115 at 16-18. Defendants claim that Doc A defendant “cannot prolong the litigation through O’Neill, The time spent by plaintiffs’ counsel seeking access to United States District Court For the Northern District of California 10 classified information was made necessary by defendants’ litigation 11 tactics and is therefore compensable. 12 Defendants correctly point out that “the most critical 13 factor” in determining whether a fee award is reasonable is “the 14 degree of success obtained.” 15 particular, when a plaintiff succeeds on only some claims for 16 relief, two questions must be addressed: “First, did the plaintiff 17 fail to prevail on claims that were unrelated to the claims on 18 which he succeeded? 19 success that makes the hours reasonably expended a satisfactory 20 basis for making a fee award?” 21 eligible to receive attorney’s fees for time spent on unsuccessful 22 claims that are unrelated to a plaintiff’s successful * * * claim,” 23 and is not entitled to a fee award not “commensurate with the 24 extent of the plaintiff’s success.” 25 923-24 (9th Cir 2008) (quotation omitted). 26 appropriate if the relief, however significant, is limited in 27 comparison to the scope of the litigation as a whole.” 28 461 US at 439. Hensley, 461 US at 436. In Second, did the plaintiff achieve a level of Id at 434. “A plaintiff is not McCown v Fontana, 550 F3d 918, “A reduced fee award is Hensley, But “[w]here a plaintiff has obtained excellent 40 1 results, his attorney should recover a fully compensatory fee,” 2 which normally “will encompass all hours reasonably expended on the 3 litigation,” and may justify an enhanced award “in some cases of 4 exceptional success.” 5 Hensley, 461 US at 435. Although plaintiffs Belew and Ghafoor have prevailed on 6 only one of their six original claims for relief, it is clear that 7 the remaining five claims — rising from violations of the First, 8 Fourth and Sixth Amendments, as well as the principle of separation 9 of powers and the International Covenant on Civil and Political United States District Court For the Northern District of California 10 Rights — “involve a common core of facts” and are “based on related 11 legal theories.” 12 Each of these claims was based on the same instances of the 13 government’s illegal wiretapping of plaintiffs, and each sought to 14 vindicate plaintiffs’ legal and constitutional rights against 15 claims of expanded executive power. 16 * * * raise[d] alternative legal grounds for a desired outcome, and 17 the court’s rejection of or failure to reach certain grounds is not 18 a sufficient reason for reducing a fee.” 19 Nor should the overall award of attorney fees be reduced because 20 Al-Haramain is not entitled to recover damages or attorney fees. 21 The surveillance of plaintiffs Al-Haramain, Ghafoor and Belew 22 involved the same set of facts. 23 involving the surveillance of Al-Haramain cannot be separated from 24 the litigation involving the surveillance of Belew and Ghafoor. 25 Doc #458/35 at 14-16; Hensley, 461 US at 435. Plaintiffs “in good faith Hensley, 461 US at 435. As a result, the litigation This court must also consider whether the level of 26 success achieved is commensurate with the fee award requested by 27 plaintiffs’ counsel. 28 fully obtained the $100 per day of liquidated damages sought for a Although plaintiffs Belew and Ghafoor have 41 1 total of $40,800, they have obtained none of the $1,000,000 of 2 punitive damages requested in the first amended complaint or the 3 $550,800 of punitive damages requested in the proposed judgment. 4 Doc ##458/35 at 16; 723/117 at 2. 5 from recovering any relief and none of the plaintiffs have obtained 6 the equitable relief sought. 7 Similarly, Al-Haramain is barred Doc ##458/35 at 16; 723/117 at 3. The Supreme Court has previously rejected a rule of 8 proportionality between damages recovered in a civil rights case 9 and attorney fees awarded under a fee-shifting statute. See City United States District Court For the Northern District of California 10 of Riverside v Rivera, 477 US 561, 574 (1986) (plurality); Id at 11 585 (Powell concurring). 12 purpose of a civil rights litigation, a district court, in fixing 13 fees, is obligated to give primary consideration to the amount of 14 damages awarded as compared to the amount sought.” 15 (Powell concurring). 16 court may consider the vindication of constitutional rights in 17 addition to the amount of damages recovered.” 18 recovered in such cases “contribute[] significantly to the 19 deterrence of civil rights violations in the future” and otherwise 20 “serve[] the public interest,” the “damages award[ed] do not 21 reflect fully the public benefit advanced” by the litigation. 22 at 574-75. 23 “Where recovery of private damages is the Id at 585 But “[i]n some civil rights cases, * * * the Id. Because damages Id FISA was enacted primarily to address Congress’s concern 24 that the constitutional rights of American citizens were being 25 undermined by various intelligence activities. 26 Committee Report, S Rep No 94-755, 289 (1976); Doc #453/33 at 10- 27 14. 28 therefore be viewed as a vindication of constitutional rights that See Church Plaintiffs’ success in obtaining damages under FISA must 42 1 serves the greater public interest. 2 FISA awarding damages against defendants for unlawful surveillance, 3 as well as its previous order holding that the state secrets 4 privilege is preempted by FISA, contributes to the deterrence of 5 future violations of constitutional rights by warrantless 6 wiretapping. 7 particularly unsuitable measure of the reasonableness of 8 plaintiffs’ requested attorney fees. 9 This court’s judgment under For these reasons, strict proportionality here is a “Where the relief sought and obtained is limited to United States District Court For the Northern District of California 10 money, the terms ‘extent of success’ and ‘level of success’ are 11 euphemistic ways of referring to money.” McGinnis v Kentucky Fried 12 Chicken, 51 F3d 805, 810 (9th Cir 1995). But this case, from the 13 start, has been about more than money. 14 litigation five years ago because they believed that they had been 15 illegally wiretapped by executive branch officials and wanted both 16 to vindicate their own constitutional rights and enforce the laws 17 that they believed were being violated. 18 liquidated damages under FISA, plaintiffs have essentially obtained 19 what they sought. 20 Plaintiffs began this With the award of The difficulties faced and overcome by plaintiffs in this 21 case add significantly to their “level of success.” 22 here stand alone among the dozens of plaintiffs in this 23 consolidated litigation that have had any success in pursuing 24 claims against the government. 25 litigated this case from the beginning and has used every available 26 tactic in defense. 27 in their attempts to obtain classified evidence from in the 28 government’s possession and have ultimately managed to win their Plaintiffs The government has fiercely Plaintiffs have gone to extraordinary lengths 43 1 case despite the government’s refusal to provide them with this 2 evidence. 3 results for their clients and accordingly are entitled to a “fully 4 compensatory fee” that includes “all hours reasonably expended on 5 the litigation.” 6 GRANTS the motion for attorney fees brought by Belew and Ghafoor 7 and awards $2,515,387.09. 8 fees brought by Al-Haramain. Plaintiffs’ counsel have clearly obtained “excellent” Hensley, 461 US at 435. Accordingly, the court The court DENIES the motion for attorney 9 United States District Court For the Northern District of California 10 4 11 Plaintiffs also request to be compensated for a total of 12 $22,012.36 in expenses. 13 in addition to “reasonable attorney’s fees,” a prevailing party may 14 recover “other litigation and investigation costs reasonably 15 incurred.” 16 authority, judges are authorized to award certain specific 17 litigation-related expenses, known as “taxable costs,” to a 18 prevailing party. 19 FISA goes further than this, though, and clearly contemplates 20 recovery of additional “non-taxable” costs. 21 fee-shifting statutes awarding “reasonable attorney’s fees” may 22 include various non-taxable costs at the court’s discretion. 23 v Wells Fargo Financial California, Inc, 606 F3d 577, 579-81 (9th 24 Cir 2010). 25 computerized legal research if it is standard practice in the local 26 legal community to bill these expenses separately from hourly 27 rates. 28 Doc #738/128 at 11. 50 USC § 1810(c). FISA provides that, Even absent express statutory 28 USC § 1920. The specific authorization of In any case, federal Grove This award may include such expenses as travel and Id. Attorneys Albies, Eisenberg, Jaskol, Goldberg and Hassan 44 describe in their declarations the expenses for which they seek 2 compensation; the total amount is $8,808.18. 3 5-6; 738-3/128-3 at 13; 738-5/128-5 at 8; 738-6/128-6 at 9-10; 738- 4 8/128-8 at 7. 5 research and courier services, and all of the attorneys state that 6 they believe that such expenses are normally billed separately from 7 hourly rates in their communities. 8 the context of litigation that has lasted nearly five years, and an 9 inspection of the declarations reveals that the attorneys have 10 United States District Court For the Northern District of California 1 omitted a large percentage of the expenses that they must have 11 incurred in this litigation. 12 expenses is reasonable. 13 Doc ##738-2/128-2 at These expenses relate to travel, computerized legal Id. This is a small figure in The court finds that the request for Attorney Thomas Nelson seeks reimbursement for $6,715.00 14 that he paid to an ethics consultant and $6,489.18 that he spent on 15 travel. 16 consultant, Mark Fucile, to help him decide an ethical matter that 17 he felt was “unprecedented” – that is, what he should do to protect 18 the confidential communications of his client when he had reason to 19 believe that the government was monitoring his client. 20 Doc #748-1/132-1 at 3-4. 21 felt compelled to discuss confidential matters in person rather 22 than through electronic communications, which required him to 23 travel. 24 trips to Saudi Arabia, two trips to Washington, D C, and three 25 trips to San Francisco, although he claims to have “made 26 approximately 40 trips to the Middle East” to provide legal counsel 27 to the director of Al-Haramain. 28 Doc #738-7/128-7 at 4-6. Mr. Nelson retained the ethics Id at 5-6; Based on the same concerns, Mr. Nelson Doc #748-1/132-1 at 3. He seeks reimbursement for two Doc #738-7/128-7 at 6. The court acknowledges that the ethical questions arising 45 1 from this case are in fact novel and difficult. 2 safeguard confidential client information is one of the most 3 critical ethical obligations of a lawyer, and Mr Nelson’s actions 4 to protect this information were not unreasonable by any measure. 5 Mr Nelson’s request for expenses is, accordingly, approved. 6 sum, the court GRANTS the request for $22,012.36 in costs and 7 expenses brought by plaintiffs Belew and Ghafoor. The duty to In 8 9 United States District Court For the Northern District of California 10 III For the reasons stated herein, the court GRANTS the 11 motion of plaintiffs Ghafoor and Belew for liquidated damages and 12 awards liquidated damages to those plaintiffs in the amount of 13 $20,400 to each plaintiff. 14 plaintiff Al-Haramain for liquidated damages and all other relief, 15 DENIES the motion of all plaintiffs for punitive damages and DENIES 16 the motion of all plaintiffs for equitable relief (a declaration 17 that defendants’ warrantless electronic surveillance was unlawful 18 as a violation of FISA and an order that any information obtained 19 by means of the defendants’ unlawful surveillance shall not be used 20 by the United States government in any proceeding and shall be 21 expunged from defendants’ files and records). 22 The court DENIES the motion of Doc #723/117. The court GRANTS the motion of plaintiffs Ghafoor and 23 Belew for the entry of an award of attorney fees and expenses, Doc 24 #738/128; 746/131; 748/132, and awards plaintiffs Ghafoor and Belew 25 attorney fees in the amount of $2,515,387.09 and expenses in the 26 amount of $22,012.36. 27 Haramain for attorney fees and expenses. 28 The court DENIES the motion of plaintiff Al- Plaintiffs request that the court dismiss the Second, 46 1 Third, Fourth, Fifth and Sixth claims for relief pleaded in the 2 First Amended Complaint pursuant to Federal Rule of Civil Procedure 3 41(a)(2). 4 plaintiffs’ proposed judgment states that defendants do not oppose 5 the dismissal of these claims. 6 the court GRANTS plaintiffs’ request to dismiss without prejudice 7 the Second, Third, Fourth, Fifth, and Sixth claims for relief. 8 #722/116. 9 United States District Court For the Northern District of California 10 Doc #722/116 at 1. Defendants’ opposition to Doc #727/119 at 15. Accordingly, Doc The clerk is directed to enter judgment, terminate any remaining motions and close the file for Case Number 07-0109. 11 12 IT IS SO ORDERED. 13 __________________________________ 14 VAUGHN R WALKER United States District Chief Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 47

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