Larry Klayman v. Barack Obama

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 4, 2014 Decided August 28, 2015

No. 14-5004

BARACK HUSSEIN OBAMA, ET AL.,

APPELLANTS

v.

LARRY ELLIOTT KLAYMAN, ET AL.,

APPELLEES

______

Consolidated with 14-5005, 14-5016, 14-5017

______

Appeal from the United States District Court

for the District of Columbia

(No. 1:13-cv-851)

(No. 1:13-cv-881)

______

H. Thomas Byron, III, Attorney, U.S. Department of

Justice, argued the cause for appellants/cross-appellees. With

him on the briefs were Stuart F. Delery, Assistant Attorney

General, Ronald C. Machen, Jr., U.S. Attorney, and Douglas

N. Letter and Henry C. Whitaker, Attorneys.

Larry E. Klayman argued the cause and filed the briefs

for appellees/cross-appellants.

Cindy A. Cohn argued the cause for amici curiae

Electronic Frontier Foundation, et al. On the brief were Alex

Abdo, Jameel Jaffer, Arthur B. Spitzer, and Mark Rumold.

2

Paul M. Smith argued the cause for amicus curiae Center

for National Security Studies. With him on the brief were

Kate A. Martin, Joseph Onek, and Michael Davidson.

Before: BROWN, Circuit Judge, and WILLIAMS and

SENTELLE, Senior Circuit Judges.

Opinion for the Court filed PER CURIAM.

Separate opinions filed by Circuit Judge BROWN and

Senior Circuit Judge WILLIAMS.

Opinion dissenting in part filed by Senior Circuit Judge

SENTELLE.

PER CURIAM: In the wake of the terrorist attacks of

September 11, 2001, Congress enacted the USA PATRIOT

Act. Pub. L. No. 107-56, 115 Stat. 272 (2001). Section 215

of that Act empowered the FBI to request, and the Foreign

Intelligence Surveillance Court (“FISC”) to enter, orders

“requiring the production of any tangible things (including

books, records, papers, documents, and other items) for an

investigation . . . to protect against international terrorism.”

Id. at § 215, 115 Stat. at 291, codified as amended at 50

U.S.C. § 1861(a)(1). Since May 2006, the government has

relied on this provision to operate a program that has come to

be called “bulk data collection,” namely, the collection, in

bulk, of call records produced by telephone companies

containing “telephony metadata”—the telephone numbers

dialed (incoming and outgoing), times, and durations of calls.

The FBI has periodically applied for, and the FISC has

entered, orders instructing one or more telecommunications

service providers to produce, on a daily basis over a period of

ninety days, electronic copies of such data. Decl. of Robert J.

Holley, Acting Assistant FBI Director, at ¶¶ 10-13, Joint

Appendix 224-25.

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Under the program, the collected metadata are

consolidated into a government database, where (except in

exigent circumstances) the NSA may access it only after

demonstrating to the FISC a “reasonable articulable

suspicion” that a particular phone number is associated with a

foreign terrorist organization. Gov’t’s Br. at 11-12. Even

then, the NSA may retrieve call detail records only for phone

numbers in contact with the original number—within two

steps, or “hops” of it. Id. at 11. If telephone number A was

used to call telephone number B, which in turn was used to

call telephone number C, and if the FISC affirms the

government’s “reasonable articulable suspicion” that A is

associated with a foreign terrorist organization, the FISC may

authorize the government to retrieve from the database the

metadata associated with A, B, and C. (Before 2014, the

FISC orders allowed the government to conduct queries for

any number within three steps of the approved identifier, and

the FISC did not play any role in assessing the government’s

“reasonable articulable suspicion” for each query. Id. at 12

n.3). Once the government has retrieved the metadata, which

does not include the content of the calls or the identities of the

callers, it uses the data “in conjunction with a range of

analytical tools to ascertain contact information that may be

of use in identifying individuals who may be associated with

certain foreign terrorist organizations because they have been

in communication with certain suspected-terrorist telephone

numbers or other selectors.” Id. at 9, 15.

Plaintiffs contend that this bulk collection constitutes an

unlawful search under the Fourth Amendment; they seek

injunctive and declaratory relief as well as damages. Third

Amended Complaint ¶ 53, Klayman v. Obama, 13-cv-851

(D.D.C. Feb. 10, 2014), ECF No. 77. The district court issued

a preliminary injunction barring the government from

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collecting plaintiffs’ call records, but stayed its order pending

appeal. Klayman v. Obama, 957 F. Supp. 2d 1, 44-45 (2013).

The court reverses the judgment of the district court, and

for the reasons stated in the opinions of Judge Brown and

Judge Williams orders the case remanded to the district court.

(Judge Sentelle dissents from the order of remand and would

order the case dismissed.) The opinions of the judges appear

below after a brief explanation of why the case is not moot.

* * *

Under a “sunset” clause, the section of the U.S. Code

amended by Section 215 was scheduled to revert to its pre-

2001 form on June 1, 2015 unless Congress acted. See Pub.

L. No. 109-177, § 102(b)(1), 120 Stat. 192, 194-95 (2006);

Pub. L. No. 112-14, § 2(a), 125 Stat. 216, 216 (2011). That

date came and went without any legislative action. One day

after the deadline, however, Congress enacted the USA

Freedom Act, which revived the language added by Section

215 with some substantial changes. See Pub. L. No. 114-23,

Tit. I, 129 Stat. 268, 269-77 (2015), codified at 50 U.S.C. §

1861. The Act’s changes do not take effect until 180 days

after the date of enactment (June 2, 2015). Id. § 109(a), 129

Stat. at 276. And the legislation provides for continuation of

pre-existing authority until the effective date of the new

legislation: “Nothing in this Act shall be construed to alter or

eliminate the authority of the Government to obtain an order

under title V of the Foreign Intelligence Surveillance Act of

1978 (50 U.S.C. 1861 et seq.) as in effect prior to the effective

date . . . during the period ending on such effective date.” Id.

§ 109(b), 129 Stat. at 276.

Cessation of a challenged practice moots a case only if

“there is no reasonable expectation . . . that the alleged

violation will recur.” Larsen v. U.S. Navy, 525 F.3d 1, 4

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(D.C. Cir. 2008) (quotations and citations omitted). Here, any

lapse in bulk collection was temporary. Immediately after

Congress acted on June 2 the FBI moved the FISC to

recommence bulk collection, United States’ Mem. of Law, In

re Application of the FBI, No. BR 15-75 (FISC, filed Jun. 2,

2015), and the FISC confirmed that it views the new

legislation as effectively reinstating Section 215 for 180 days,

and as authorizing it to resume issuing bulk collection orders

during that period. See Opinion and Order, In re Application

of the FBI, Nos. BR 15-75, Misc. 15-01 (FISC June 29, 2015)

(Mosman, J.); Mem. Op., In re Applications of the FBI, Nos.

BR 15-77, BR 15-78 (FISC Jun. 17, 2015) (Saylor, J.).

Accordingly, plaintiffs and the government stand in the same

positions that they did before June 1, 2015.

* * *

The preliminary injunction entered by the district court is

hereby vacated and the case remanded for such further

proceedings as may be appropriate.

So ordered.

BROWN, Circuit Judge: I disagree with the district

court’s conclusion that plaintiffs have established a

“substantial likelihood of success on the merits.” See, e.g.,

Sottera, Inc. v. Food & Drug Admin., 627 F.3d 891, 893 (D.C.

Cir. 2010). I write separately to emphasize that, while

plaintiffs have demonstrated it is only possible—not

substantially likely—that their own call records were

collected as part of the bulk-telephony metadata program,

plaintiffs have nonetheless met the bare requirements of

standing. Accordingly, I join the court in vacating the

preliminary injunction entered by the district court.

In order to establish his standing to sue, a plaintiff must

show he has suffered a “concrete and particularized” injury.

Lujan v. Defenders of Wildlife, 504 U.S.555, 560–61 (1992).

In other words, plaintiffs here must show their own metadata

was collected by the government. See, e.g., Clapper v.

Amnesty International, 133 S. Ct. 1138, 1148 (2013)

(“[R]espondents fail to offer any evidence that their

communications have been monitored under § 1881a, a

failure that substantially undermines their standing theory.”);

ACLU v. NSA, 493 F.3d 644, 655 (6th Cir. 2007) (“If, for

instance, a plaintiff could demonstrate that her privacy had

actually been breached (i.e., that her communications had

actually been wiretapped), then she would have standing to

assert a Fourth Amendment cause of action for breach of

privacy.”); Halkin v. Helms, 690 F.2d 977, 999–1000 (D.C.

Cir. 1982) (“[T]he absence of proof of actual acquisition of

appellants’ communications is fatal to their watchlisting

claims.”).

The record, as it stands in the very early stages of this

litigation, leaves some doubt about whether plaintiffs’ own

metadata was ever collected. Plaintiffs’ central allegation is

that defendants “violated the Fourth Amendment to the U.S.

Constitution when they unreasonably searched and seized and

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continue to search Plaintiffs’ phone records . . . without

reasonable suspicion or probable cause.” Third Amended

Complaint at ¶ 53, Klayman I, 957 F. Supp. 2d 1. Plaintiffs

have supported this claim with specific facts, notably: (1) The

NSA operates a bulk telephony-metadata collection program;

and (2) on April 25, 2013, the FISC issued an order requiring

Verizon Business Network Services to produce its subscribers’

call detail records to the NSA on a daily basis from April 25,

2013 to July 19, 2013. However, plaintiffs are Verizon

Wireless subscribers and not Verizon Business Network

Services subscribers. Thus, the facts marshaled by plaintiffs

do not fully establish that their own metadata was ever

collected.

In his opinion below, Judge Leon eloquently explains

how these facts are nonetheless sufficient to draw the

inference that “the NSA has collected and analyzed

[plaintiffs’] telephony metadata and will continue to operate

the program consistent with FISC opinions and orders.”

Klayman v. Obama, 957 F. Supp. 2d 1, 29 (D.D.C. 2013). In

particular, Judge Leon infers from the government’s efforts to

“create a comprehensive metadata database” that “the NSA

must have collected metadata from Verizon Wireless, the

single largest wireless carrier in the United States, as well as

AT&T and Sprint, the second[-] and third-largest carriers.”

Id. at 27.

As Judge Leon’s opinion makes plain, plaintiffs have set

forth significant evidence about the NSA’s bulk-telephony

metadata program. As a result, this case is readily

distinguishable from cases like Tooley v. Napolitano, 586

F.3d 1006 (D.C. Cir. 2009), in which allegations of unlawful

surveillance were dismissed as “patently insubstantial.” Id.

at 1009–10 (concluding that the governmental surveillance

scheme described in plaintiff’s allegations was “not

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realistically distinguishable from allegations of little green

men.”).

This evidence also sets this case apart from Clapper.

There, plaintiffs’ claim of standing relied “on a highly

attenuated chain of possibilities.” 133 S. Ct. at 1148. One

link of that chain was that plaintiffs’ “theory necessarily rests

on their assertion that the Government will target other

individuals—namely, their foreign contacts.” 1 Id. The

Clapper plaintiffs, however, had “no actual knowledge of the

Government’s § 1881a targeting practices” nor could they

even show that the surveillance program they were

challenging even existed. Id. at 1148–49 (“Moreover,

because § 1881a at most authorizes—but does not mandate or

direct—the surveillance that respondents fear, respondents’

allegations are necessarily conjectural.”); cf. United

Presbyterian Church in the USA v. Reagan, 738 F.2d 1375,

1380–81 (D.C. Cir. 1984) (dismissing a complaint as a

“generalized grievance” against the “entire national

intelligence-gathering system” where plaintiffs were unable to

show the injury they suffered was the result of a specific

government surveillance program.) By contrast, here,

plaintiffs have set forth specific evidence showing that the

government operates a bulk-telephony metadata program that

collects subscriber information from domestic

telecommunications providers, including Verizon Business

Network Services. Contrary to the assertions of my

colleagues, these facts bolster plaintiffs’ position: where the

Clapper plaintiffs relied on speculation and conjecture to

press their claim, here, plaintiffs offer an inference derived

1

The statute authorizing the surveillance program at issue in

Clapper, 50 U.S.C. § 1881a, explicitly provided that, as U.S.

persons, plaintiffs could not be targeted for surveillance. 133 S. Ct.

at 1148.

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from known facts. See In re Application of the Federal

Bureau of Investigation for an Order Requiring the

Production of Tangible Things from Verizon Business

Network Services, Inc. on behalf of MCI Communication

Services, Inc. d/b/a Verizon Business Services, No. BR-13-80

(Foreign Intelligence Surveillance Court, April 25, 2013), J.A.

250–53.2

However, the burden on plaintiffs seeking a preliminary

injunction is high. Plaintiffs must establish a “substantial

likelihood of success on the merits.” Sottera, Inc., 627 F.3d at

893. Although one could reasonably infer from the evidence

presented the government collected plaintiffs’ own metadata,

one could also conclude the opposite. Having barely fulfilled

the requirements for standing at this threshold stage, Plaintiffs

fall short of meeting the higher burden of proof required for a

preliminary injunction.

Judge Williams is right to remind us that any number of

unexpected constraints may frustrate the effectiveness of a

given program. Appropriations may fall short. Technicians

may err. Legal challenges may stymie the most dedicated

bureaucrats. 3 But while post hoc obstacles may undermine a

program’s efficacy, they do not alter its intended objective,

which, here, remains (commonsensically) the comprehensive

collection of telephonic metadata.

2

Although originally classified “top secret,” this order was

declassified on July 11, 2013. The order expired on July 19, 2013.

3

FISA provides that a “person receiving a production order may

challenge the legality of [that order]…by filing a petition with the

[FISC].” 50 U.S.C. § 1861 (f)(2)(A)(i). However, such petitions

are filed under seal and may not be disclosed. Id. § 1861 (d)(1),

(f)(2)(D)(4), (f)(2)(D)(5).

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On remand it is for the district court to determine whether

limited discovery to explore jurisdictional facts is appropriate.

See, e.g., Natural Resources Defense Council v. Pena, 147

F.3d 1012, 1024 (D.C. Cir. 1998). Of course, I recognize

that, in order for additional discovery to be meaningful, one of

the obstacles plaintiffs must surmount is the government’s

unwillingness to make public a secret program. See United

Presbyterian Church in the U.S.A., 738 F.2d at 1382; cf.

ACLU, 493 F.3d at 655 (“In the present case, the plaintiffs

concede that there is no single plaintiff who can show that he

or she has actually been wiretapped. Moreover, due to the

State Secrets Doctrine, the proof needed either to make or

negate such a showing is privileged, and therefore withheld

from discovery or disclosure.”). It is entirely possible that,

even if plaintiffs are granted discovery, the government may

refuse to provide information (if any exists) that would further

plaintiffs’ case. Plaintiffs’ claims may well founder in that

event. But such is the nature of the government’s privileged

control over certain classes of information. Plaintiffs must

realize that secrecy is yet another form of regulation,

prescribing not “what the citizen may do” but instead “what

the citizen may know.” DANIEL P. MOYNIHAN, SECRECY: THE

AMERICAN EXPERIENCE 59 (1999). Regulations of this sort

may frustrate the inquisitive citizen but that does not make

them illegal or illegitimate. Excessive secrecy limits needed

criticism and debate. Effective secrecy ensures the

perpetuation of our institutions. In any event, our opinions do

not comment on the propriety of whatever privileges the

government may have occasion to assert.

WILLIAMS, Senior Circuit Judge: “[A] party seeking a

preliminary injunction must demonstrate, among other things,

a likelihood of success on the merits.” Munaf v. Geren, 553

U.S. 674, 690 (2008) (internal quotations and citations

omitted); see also Mills v. District of Columbia, 571 F.3d

1304, 1308 (D.C. Cir. 2009) (requiring a “substantial

likelihood of success on the merits”) (emphasis added)

(quotations and citations omitted). In this context, the

“merits” on which plaintiff must show a likelihood of success

encompass not only substantive theories but also

establishment of jurisdiction. The “affirmative burden of

showing a likelihood of success on the merits . . . necessarily

includes a likelihood of the court’s reaching the merits, which

in turn depends on a likelihood that plaintiff has standing.”

Nat’l Wildlife Fed’n v. Burford, 835 F.2d 305, 328 (D.C. Cir.

1987) (Williams, J., concurring and dissenting). And to show

standing, a plaintiff must demonstrate an “injury in fact” that

is “actual or imminent, not conjectural or hypothetical.”

Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC),

Inc., 528 U.S. 167, 180 (2000).

Plaintiffs claim to suffer injury from government

collection of records from their telecommunications provider

relating to their calls. But plaintiffs are subscribers of

Verizon Wireless, not of Verizon Business Network Services,

Inc.—the sole provider that the government has

acknowledged targeting for bulk collection. Gov’t’s Br. at

38; Appellees’ Br. at 26-28; see also Secondary Order, In re

Application of FBI, No. BR 13-80 (FISC, Apr. 25, 2013)

(Vinson, J.). Thus, unlike some others who have brought legal

challenges to the bulk collection program, plaintiffs lack

direct evidence that records involving their calls have actually

been collected. Cf. ACLU v. Clapper, 785 F.3d 787, 801 (2d

Cir. 2015) (finding that Verizon Business subscribers had

standing to challenge the bulk collection program because

“the government’s own orders demonstrate that appellants’

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call records are indeed among those collected as part of the

telephone metadata program”).

Plaintiffs’ contention that the government is collecting

data from Verizon Wireless (a contention that the government

neither confirms nor denies, Gov’t’s Br. at 38-39), depends

entirely on an inference from the existence of the bulk

collection program itself. Such a program would be

ineffective, they say, unless the government were collecting

metadata from every large carrier such as Verizon Wireless;

ergo it must be collecting such data. Appellee’s Br. 27-28.

This inference was also the district judge’s sole basis for

finding standing. Klayman v. Obama, 957 F. Supp. 2d 1, 27

& n.36 (2013).

Yet the government has consistently maintained that its

collection “never encompassed all, or even virtually all, call

records and does not do so today.” Gov’t’s Br. at 39; Decl. of

Teresa Shea, NSA Signals Intelligence Director at ¶ 8,

Addendum to Gov’t’s Br. at 101 (similar). While one district

judge has claimed that “the Government acknowledged that

since May 2006, it has collected this information for

substantially every telephone call in the United States,”

neither of his sources—an Administration “White Paper” and

a declaration by an NSA official—actually supports the claim.

ACLU v. Clapper, 959 F. Supp. 2d 724, 735 (S.D.N.Y. 2013),

vacated and remanded, 785 F.3d 787 (2d Cir. 2015); see

Administration White Paper, Bulk Collection of Telephony

Metadata Under Section 215 of the USA Patriot Act at 3

(Aug. 9, 2013) (“FBI obtains orders from the FISC directing

certain telecommunications service providers to produce

business records that contain information about

communications between telephone numbers . . .” (emphasis

added)); Decl. Teresa Shea ¶ 14, ACLU v. Clapper, 13-cv-

3994 (S.D.N.Y. Oct. 1, 2013), ECF No. 63 (“FBI obtains

orders from the FISC directing certain telecommunications

3

service providers to produce all business records created by

them (known as call detail records) that contain information

about communications between telephone numbers”

(emphasis added)).

I note the Second Circuit’s observation that the

government had not “seriously” disputed the contention that

“all significant service providers” were subject to the bulk

collection program. ACLU, 785 F.3d at 797. But in that case

the government said, “Various details of the program remain

classified, precluding further explanation here of its scope,”

and went on to insist that “the record does not support the

conclusion that the program collects ‘virtually all telephony

metadata’ about telephone calls made or received in the

United States. Nor is that conclusion correct.” See

Appellees’ Br. at 7, ACLU v. Clapper, No. 14-42 (2d Cir.

filed Apr. 10, 2014) (citations omitted). Thus the

government’s assertions in the two cases are parallel. Of

course the Second Circuit’s comment was irrelevant to its

conclusion, as the plaintiffs in that case were not subscribers

of Verizon Wireless but of Verizon Business, whose data the

government acknowledged collecting. See ACLU, 785 F.3d

at 801.

It appears true, as plaintiffs and the district court suggest,

that the effectiveness of the program expands with its

coverage; every number that goes uncollected reduces the

utility of the government’s “two-hop” querying. Indeed, it

may well be that a reduction in coverage of, say, 50% would

diminish the effectiveness of the program by far more than

that proportion. Yet, in the face of the government’s

representations that it has never collected “all, or even

virtually all” call records, I find plaintiffs’ claimed inference

inadequate to demonstrate a “substantial likelihood” of injury.

Clapper v. Amnesty International, 133 S. Ct. 1138

(2013), represents the Supreme Court’s most recent

4

evaluation of comparable inferences and cuts strongly against

plaintiffs’ claim that they have a substantial likelihood of

prevailing as to standing. There, a group of US-based

“attorneys and human rights, labor, legal, and media

organizations” challenged the surveillance authorized by the

FISA Amendments Act of 2008. Id. at 1145. The statute

empowered the Attorney General and the Director of National

Intelligence to jointly seek an order from the FISC

authorizing “the targeting of persons reasonably believed to

be located outside the United States to acquire foreign

intelligence information” for a period of up to one year. 50

U.S.C. § 1881a. Plaintiffs claimed they were injured by the

surveillance because their work required them “to engage in

sensitive and sometimes privileged telephone and e-mail

communications with colleagues, clients, sources, and other

individuals located abroad” and that “some of the people with

whom they exchange foreign intelligence information [we]re

likely targets of surveillance under § 1881a” because they

communicate with “people the Government ‘believes or

believed to be associated with terrorist organizations,’ ‘people

located in geographic areas that are a special focus’ of the

Government’s counterterrorism or diplomatic efforts, and

activists who oppose governments that are supported by the

United States Government.” 133 S. Ct. at 1145.

But as the Court observed, the Clapper plaintiffs had “no

actual knowledge of the Government’s § 1881a targeting

practices” and accordingly “merely speculate[d] and ma[d]e

assumptions about whether their communications with their

foreign contacts will be acquired under § 1881a.” Id. at 1148.

The premises for their speculation were hardly trivial. They

claimed (and it was not disputed) (1) that they engaged in

communications eligible for surveillance under the disputed

section, (2) that the government had a strong motive to

intercept these particular communications because of the

subject matter and identities involved, (3) that the government

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had (under separate legal authority) already intercepted

10,000 phone calls and 20,000 emails involving one

individual who is now in regular communication with one of

the plaintiffs, and (4) that the government had the capacity to

intercept these communications. Id. at 1157-59. The Court

held that these allegations left it merely “speculative whether

the Government w[ould] imminently target communications

to which respondents [we]re parties,” and so provided an

inadequate basis for standing. Id. at 1148-49 (citations and

some quotations omitted).

Here, the plaintiffs’ case for standing is similar to that

rejected in Clapper. They offer nothing parallel to the

Clapper plaintiffs’ evidence that the government had

previously targeted them or someone they were

communicating with (No. 3 above). And their assertion that

NSA’s collection must be comprehensive in order for the

program to be most effective is no stronger than the Clapper

plaintiffs’ assertions regarding the government’s motive and

capacity to target their communications (Nos. 2 & 4 above).

The strength of plaintiffs’ inference from the

government’s interest in having an effective program rests on

an assumption that the NSA prioritizes effectiveness over all

other values. In fact, there are various competing interests

that may constrain the government’s pursuit of effective

surveillance. Plaintiffs’ inference fails to account for the

possibility that legal constraints, technical challenges, budget

limitations, or other interests prevented NSA from collecting

metadata from Verizon Wireless. Many government

programs (even ones associated with national defense) seem

to be calibrated or constrained by collateral concerns not

directly related to the program’s stated objectives, such as

funding deficiencies, bureaucratic inertia, poor leadership,

and diversion to non-defense interests of resources nominally

dedicated to defense. It is possible that such factors have

6

operated to hamper the breadth of the NSA’s collection. In

fact, both the district court and the plaintiffs contradict their

own assertions about the effectiveness of the program by

emphatically asserting its ineffectiveness in support of their

conclusions that it violates the Fourth Amendment. See

Klayman, 957 F. Supp. 2d at 40-41 (“I have serious doubts

about the efficacy of the metadata collection program . . . .”);

Appellees’ Br. at 47-49; Appellees’ Reply at 30-33.

Judge Brown distinguishes Clapper on the grounds that

the plaintiffs here have offered “specific evidence” about the

government’s bulk collection program. Op. of Brown, J., at 3.

But, assuming their evidence to be in some sense more

specific, the relevant inquiry is whether that evidence

indicates that the program targets plaintiffs. As to that, the

plaintiffs here do no better than those in Clapper.

Plaintiffs complain that the government should not be

allowed to avoid liability simply by keeping the material

classified. But the government’s silence regarding the scope

of bulk collection is a feature of the program, not a bug. The

Clapper Court rejected a request for “in camera” review of

classified government materials precisely on the ground that

any such approach would tend to undermine the program’s

effectiveness:

As an initial matter, it is respondents’

burden to prove their standing by pointing to

specific facts, not the Government’s burden to

disprove standing by revealing details of its

surveillance priorities. Moreover, this type of

hypothetical disclosure proceeding would allow

a terrorist (or his attorney) to determine whether

he is currently under U.S. surveillance simply

by filing a lawsuit challenging the

Government’s surveillance program. Even if

the terrorist’s attorney were to comply with a

7

protective order prohibiting him from sharing

the Government’s disclosures with his client,

the court’s postdisclosure decision about

whether to dismiss the suit for lack of standing

would surely signal to the terrorist whether his

name was on the list of surveillance targets.

133 S. Ct. at 1149 n.4 (citations omitted). These

considerations apply with equal force here, where the

government has sought to maintain a similarly strategic

silence regarding the scope of its bulk collection.

It is true that Clapper came to the Court on review of

cross-motions for summary judgment, not a preliminary

injunction, but the Court’s rejection of the Clapper plaintiffs’

claims is nonetheless telling. Those plaintiffs actually faced a

lighter burden than do ours: in granting the government’s

motion for summary judgment, the Court necessarily found

that plaintiffs’ inferences were inadequate even to preserve

the question of standing as a “genuine issue.” See Amnesty

Int’l USA v. McConnell, 646 F. Supp. 2d 633, 641 (S.D.N.Y.

2009) (quoting Fed. R. Civ. P. 56(c)), vacated and remanded

sub nom. Amnesty Int’l USA v. Clapper, 638 F.3d 118 (2d Cir.

2011), rev’d, 133 S. Ct. 1138 (2013). Here, by contrast,

plaintiffs must show a “substantial likelihood” of standing.

Accordingly, I find that plaintiffs have failed to

demonstrate a “substantial likelihood” that the government is

collecting from Verizon Wireless or that they are otherwise

suffering any cognizable injury. They thus cannot meet their

burden to show a “likelihood of success on the merits” and

are not entitled to a preliminary injunction.

It remains possible that on remand plaintiffs will be able

to collect evidence that would establish standing. Indeed,

noting that the government was “uniquely in control of the

facts, information, documents, and evidence regarding the

8

extent and nature of their mass surveillance,” they moved in

the district court to depose “an employee of the NSA.” Pls.’

Mot. For Leave, Klayman v. Obama, 13-cv-851 (D.D.C. Oct.

30, 2013), ECF No. 15. But the district judge denied the

motion as moot after granting the preliminary injunction.

Minute Order, Klayman v. Obama, 13-cv-851 (D.D.C. Jan.

21, 2014). Given the possibility that plaintiffs’ efforts along

these lines may be fruitful, I join Judge Brown in remanding

to the district court for it to decide whether limited discovery

to explore jurisdictional facts is appropriate.

I am uncertain about the meaning of Judge Brown’s

view that although plaintiffs have failed to show a substantial

likelihood of success on standing, they have nonetheless

“fulfilled the requirements for standing,” if only “barely.”

Op. of Brown, J., at 4. If the latter “fulfill[ment]” means

simply that standing cannot be ruled out and thus poses no

jurisdictional obstacle to discovery on standing, I agree. To

the extent that Judge Brown regards the “burden of proof

required for a preliminary injunction” as “higher,” id., I don’t

understand in what sense the burden would be higher than in

other contexts (motions for judgment on the pleadings, for

summary judgment, or after hearing), or the basis for

regarding it as higher than in those contexts.

SENTELLE, Senior Circuit Judge, dissenting in part: I will

not restate either the facts or the background law, as I fully

agree with my colleagues’ statements on those subjects.

Indeed, I agree with virtually everything in Judge Williams’

opinion, save for its conclusion, and I even agree with part of

that. My colleagues believe that the preliminary injunction

entered by the district court must be vacated, as plaintiffs have

failed to establish a “substantial likelihood of success on the

merits.” Brown Op. 1; Williams Op. 3. I agree. However,

my colleagues also believe that the case should be remanded

for further proceedings. I do not agree. Like Judge Williams,

I believe that the failure to establish the likelihood of success

depends at least in the first instance on plaintiffs’ inability to

establish the jurisdiction of the court. I also agree with Judge

Williams that plaintiffs have not established the jurisdiction of

the court. That being the case, I would not remand the case

for further proceedings, but would direct its dismissal.

As my colleagues recognize, in order to bring a cause

within the jurisdiction of the court, the plaintiffs must

demonstrate, inter alia, that they have standing. “[T]o show

standing, a plaintiff must demonstrate an ‘injury in fact’ that is

‘actual or imminent, not conjectural or hypothetical.’”

Williams Op. at 1 (quoting Friends of the Earth, Inc. v.

Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 180 (2000).

As Judge Williams goes on to note, “[p]laintiffs claim to

suffer injury from government collection of records from their

telecommunications provider relating to their calls.” Id. at 1;

see also Brown Op. 2. However, plaintiffs never in any

fashion demonstrate that the government is or has been

collecting such records from their telecommunications

provider, nor that it will do so. Briefly put, and discussed in

more detail by Judge Williams, plaintiffs’ theory is that

because it is a big collection and they use a big carrier, the

government must be getting at their records. While this may

be a better-than-usual conjecture, it is nonetheless no more

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than conjecture.

As Judge Williams further notes, “Clapper v. Amnesty

International, 133 S. Ct. 1138 (2013), represents the Supreme

Court’s most recent evaluation of comparable inferences and

cuts strongly against plaintiffs’ claim that they have a

substantial likelihood of prevailing as to standing.” Williams

Op. at 3–4. While Clapper involved collection under a

different statutory authorization, the standing claims of the

plaintiffs before us and the plaintiffs in that case are markedly

similar. In fact, the plaintiffs’ claim before us is weaker than

that of the Clapper plaintiffs. The Clapper plaintiffs at least

claimed that the government had previously targeted them or

someone with whom they were communicating. The

plaintiffs before us make no such claim. I would go farther

than Judge Williams. Clapper does not just “cut[ ] strongly

against plaintiffs’ claims that they have a substantial

likelihood of prevailing as to standing,” Clapper cuts their

claims out altogether.

Plaintiffs have not demonstrated that they suffer injury

from the government’s collection of records. They have

certainly not shown an “injury in fact” that is “actual or

imminent, not conjectural or hypothetical.” Friends of the

Earth, Inc., 528 U.S. at 180. I agree with the conclusion of

my colleagues that plaintiffs have not shown themselves

entitled to the preliminary injunction granted by the district

court. However, we should not make that our judicial

pronouncement, since we do not have jurisdiction to make any

determination in the cause. I therefore would vacate the

preliminary injunction as having been granted without

jurisdiction by the district court, and I would remand the case,

not for further proceedings, but for dismissal.

In Clapper, the Court stated, “Yet respondents have no

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actual knowledge of the Government’s . . . targeting practices.

Instead, respondents merely speculate and make assumptions

about whether their communications with their foreign

contacts will be acquired . . . .” 133 S. Ct. at 1148. After

discussing the speculative nature of plaintiffs’ claims, the

Supreme Court summed up its decision as “respondents’

speculative chain of possibilities does not establish that injury

based on potential future surveillance is certainly impending

or is fairly traceable to [the government’s acts].” Id. at 1150.

Therefore, in a conclusion fully applicable to the case before

us, the Supreme Court held “that respondents lack Article III

standing because they cannot demonstrate that the future

injury they purportedly fear is certainly impending and

because they cannot manufacture standing by incurring costs

in anticipation of non-imminent harm.” Id. at 1155.

Without standing there is no jurisdiction. Without

jurisdiction we cannot act. See Steel Co. v. Citizens for a

Better Environment, 523 U.S. 83, 94–95 (1998). Therefore, I

agree with my colleagues that the issuance of the preliminary

injunction was an ultra vires act by the district court and must

be vacated. However, I believe we can do no more. I would

remand the case for dismissal, not further proceedings.