NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 17 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CAROLYN JEWEL; et al., No. 19-16066

Plaintiffs-Appellants, D.C. No. 4:08-cv-04373-JSW

v.

MEMORANDUM*

NATIONAL SECURITY AGENCY; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Jeffrey S. White, District Judge, Presiding

Argued and Submitted November 2, 2020 Seattle, Washington

Before: McKEOWN, GOULD, and BEA, Circuit Judges.

This appeal is the third trip to our court for a group of plaintiffs (the “Jewel

Plaintiffs”) in their long-running statutory and constitutional challenges to

government surveillance programs. See Jewel v. Nat’l Sec. Agency, 673 F.3d 902

(9th Cir. 2011) (“Jewel I”); Jewel v. Nat’l Sec. Agency, 810 F.3d 622 (9th Cir.

2015) (“Jewel II”). The Jewel Plaintiffs now appeal the district court’s denial of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. their motion for partial summary judgment and grant of the government’s cross-

motion for partial summary judgment, as well as its subsequent grant of the

government’s motion for summary judgment and denial of their cross-motion to

proceed to resolution on the merits. In an earlier appeal, we noted that the Jewel

Plaintiffs might ultimately face “procedural, evidentiary and substantive barriers”

to proving standing at a later stage of the litigation. Jewel I, 673 F.3d at 911. That

prediction has now come to pass. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

We review de novo an order granting summary judgment. Bravo v. City of

Santa Maria, 665 F.3d 1076, 1083 (9th Cir. 2011). We review for an abuse of

discretion the district court’s exclusion of evidence at summary judgment and will

affirm “unless its evidentiary ruling was manifestly erroneous and prejudicial.”

Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002).

The Jewel Plaintiffs failed to set forth sufficient evidence of standing for

each of their claims to survive the government’s motions for summary judgment.

Specifically, the Jewel Plaintiffs failed to set forth sufficient evidence of

particularized injuries in fact—the standing element in dispute on appeal—

demonstrating that the government has interfered with their communications and

communications records. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016)

(“To establish injury in fact, a plaintiff must show that he or she suffered an

2 invasion of a legally protected interest that is concrete and particularized and actual

or imminent, not conjectural or hypothetical.” (internal quotation marks and

citation omitted)).

Their argument that, pursuant to the procedures set forth in 50 U.S.C.

§ 1806(f), they may use classified evidence to establish their standing ignores the

fact that it is their “burden to prove their standing by pointing to specific facts,”

which they have failed to do here. Clapper v. Amnesty Int’l USA, 568 U.S. 398,

412 n.4 (2013) (emphasis added); see also TransUnion LLC v. Ramirez, 141 S. Ct.

2190, 2207 (2021) (“As the party invoking federal jurisdiction, the plaintiffs bear

the burden of demonstrating that they have standing.”).

Because the Jewel Plaintiffs “failed to establish the existence of an element

essential to [their] case on which [they] will bear the burden of proof at trial,” the

district court properly granted summary judgment to the government on all claims.

Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1222 (9th Cir. 1995); see also

Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).

The district court did not abuse its discretion in excluding evidence at

summary judgment. See Orr, 285 F.3d at 773. But even assuming it did so, any

such error was not prejudicial, because even considering the excluded evidence,

the Jewel Plaintiffs have failed to set forth sufficient evidence of standing. The

district court also did not abuse its discretion in denying the Jewel Plaintiffs’

3 counsel secure access to the classified evidence in this case. See 50 U.S.C.

§ 1806(f) (“[T]he court may disclose . . . materials relating to the surveillance only

where such disclosure is necessary to make an accurate determination of the

legality of the surveillance.”); Fazaga v. Fed. Bureau of Investigation, 965 F.3d

1015, 1065 n.49 (9th Cir. 2020).

In view of our determination, we need not consider whether the district court

erred in also concluding that the Jewel Plaintiffs’ claims were barred by the state

secrets privilege.

AFFIRMED.

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