Montgomery v. Comey

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

FILED

MAR-szms

DENNIS MONTGOMERY, et al., )

) C|erk. U.S. District & Bankruptcy

Plaintiffs’ ) Courts for the District of Co|umb|a

)

v. ) Civil Action N0. 17-1074 (RJL)

)

JAMES COMEY, et al., )

)

Defendants. )

MEM§{:\NDUM OPINION

March i, 2018 [Dkrs. ##7, 26, 27, 36]

Plaintiffs, Dennis Montgomery (“Montgomery”) and Larry Klayman (“Klayman”)

filed the instant action against three federal agencies_the Federal Bureau of Investigations

(“FBI”), the Central Intelligence Agency (“CIA”), and the National Security Agency

(“NSA”)_as Well as seven current and former government officials_former President

Barack Obama (“Obama”), Director of National Intelligence (“DNI”) Daniel Coats

(“Coats”), former DNI James Clapper (“Clapper”), CIA Director Mil<e Pompeo

(“Pompeo”), former CIA Director John Brennan (“Brennan”), NSA Director Michael

Rogers (“Rogers”), and former FBI director J ames Comey (“Comey”). Compl. [Dl<t. #l]

111 5-16. Plaintiffs allege that defendants have engaged in “ongoing illegal,

unconstitutional surveillance of millions of Americans,” including high-profile Americans,

such as the Chief Justice of the United States, President Donald J. Trump, other judges and

justiccs across thc nation, and promincnt busincssmen. Id. at 11 18. Plaintiffs claim that

they, too, Wcre targeted by this surveillance based on the fact that their personal and

1

business computers and cell phones Were allegedly "hacked” by computers used by the

Cl/\, the l`*`Bl, and the I)epartment ofl')efense (“DOD”). ]c/. at 1|1| 43-48, 56--62. According

to plaintiffs thc l*`Bl, under Comey’s direction, sought to “cover-up” its Wrongdoing by

inducing l\/lontgomery to turn over 47 computer hard drives containing evidence of the

illegal surveillance [a'. at jill 28~~37. They also claim that the FBl has refused to investigate

plaintil`l`s" claims or return the incriminating hard drives. [a’.

Based on this allegedly unlawful conduct by del`endants, Klayman and

l\/lontgomery assert constitutional claims for violations of their First and Fourth

Alnendlnent rights, as Well as common law tort claims for conversion and fraudulent

misrepresentation ]d. at 1]1[ 67---8(), 96--1()1, 109--20. They also seek injunctive relief and

appointment of a special master to "`conduct a real and through[sic] investigation of the

information contained on the hard drives” and of “Del"endants’ attempts to and/or actual

hacks of Plaintiff Klayman’s Verizon Wireless cellular phone and Plaintit`fl\/lontgomery’s

computcr.M /c/. at jill 8`1~95, l()Z¢()S.

These cases are before the Court on the Government Defendants’ l\/lotion to Dismiss

and for Partial Summary Judgment, the lndividual-Capacity Defendants’ Motion to

Dismiss, and Plaintiffs’ Motion for a Preliminary lnjunction. Upon consideration of the

parties’ submissions, and the entire record herein, defendants’ motions are GRANTED,

plaintiffs’ motion is DENIED, and plaintiffs’ complaint is DISMISSED With prejudice.

BACKGROUND

This case~according to plaintiffs~is a “continuation” of three other lawsuits

previously filed in this Court, in Which Klayman has alleged that the federal government

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and its agents have engaged in a “pattcrn and practice of illegally and unconstitutionally

spying on millions of Americans.” Pls.’ Opp’n to Gov’t Defs.’ Mot. Dismiss & l\/lot. for

Partial Summ. .l. & Resp. to Opp’n to Mot for TRO [Dkt. #33] (“Pls’ Opp’n”) l; Compl.

ll 6. "l"wo o’f`those lawsuits_which have come to be known as “](lqy)')iczn ]” and “Klaymcm

//“’ ------- have already been dismissed with prejudiec, see Klayman v. Nal'[O/ml Secur/`ly

Agency, Civ. A. l\los. l3-851(RJL), l3-88](RJL). 20l7 WL 5635668 (l\lov. 21,2()17), and

l have issued an order to show cause why the third should not be dismissed for the same

rcasons. See K/(zynmn v. ()l)cz/ncz, l4-cv-()0092-R.ll,, (1)rdci'|:l)l<t. #53|. Although plaintiffs

admit that “therc is a tremendous overlap in these cases,” Status Hr’g Tr. 25:l-2, June 23,

2017 [Dl<t. #12], there arc some facts unique to thc present suit, so l will provide a brief

background of the specific allegations in this case.

Thc general theme of this action is similar to the previous three, and is a veritable

anthology of conspiracy theorists’ complaints. According to plaintiffs, “each and every”

defendant has engaged in “ongoing illegal, unconstitutional surveillance of millions of

Americans, including prominent Americans such as the [C]hief [J]ustice of the U.S.

Supreme Court, other _justices, l56 judges, prominent businessmen and others such as

Donald .l. Trump, as well as Plaintiffs themselves.” la’. at ll 18. l)lztiittil"l"s claim that

defendants have conductediand continue to conduct--~this surveillance "in numerous

ways, including but not limited to, bulk telephony mctadata collection similar to the now

`discontinued’ Section 215 of the US/\ l’/\'l`RI()'l" /\C'l" as well as targeted ‘PRlSl\/l’

collection under Section 7()2 of the l`i`oreign |:lntelligence Surveillance:| Act.” ]d. at ll 20.

Plainti'f`fs further claim that "ez\cli and every” defendant in this case has covered up the

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ongoing surveillance “by coordinating ‘leaks’ of sensitive information pertaining to those

who may dare to oppose them or reveal their illegal, unconstitutional activities." [c!. at

‘l 28.

l)laintiffl\/lontgomery is a former NS/\, Cl/\, and l)l\ll contractor who has allegedly

engaged in whistleblowing regarding defendants’ unconstitutional surveillance ld. at ll 33.

llc claims that on /\ugust 19, 2()15, he was induced by the FB.[, under the direction of

(`,omcyt to turn over 47 hard drivcs, valued in excess of$$(),()()(). which allegedly contained

evidence ofdcfendants’ unconstitutional mass surveillance la’. at llll 37¢38. Specifically,

this evidence consisted of()`()(),()()(),()()() pages of data on over 2() million Americans, much

of which was collected on behalf of the U.S. Govcrnment on computers supplied by the

l"`BI. See /\mendcd Aff. of Dennis l\/lontgomcry in Supp. ofPls.’ l\/lot. TR() & Prelim. lnj.

("l\/lontgomery A'f`f.”) |:lf)l<t. #-9:| ll 4. l\/lontgomcry alleges that he only gave the hard drives

to the l"`Bl because the l"`Bl expressly promised that it would conduct an investigation of

the mass surveillance Compl. ll 38. l"ormer General Counsel of the l'"Bl, .lames Baker

("l`§al\'er".). allegedly assured plaintiffs that Comey was taking "hands on” supervision of

thc l\/lontgomery investigation, given its importance la'. at p. 3. Comcy and the FBL

however, never conducted the investigation, and l\/lontgomery alleges that they are

concealing the hard drives in order “to ensure that the evidence contained therein is not

investigated or revealed to the public and prosecuted." ]d. at ll 39.

l\/lontgomery also claims that. on or around l.`)ecember 21 , 2()15, he was interviewed

under oath at the l"l%l field office in Washington_ l).C. [cz’, at ll 4(). I`)uring that three-hour

interview` which was recorded on videotape, l\/lontgomery set forth the NS/\, Cl/\` and

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l)l\ll’s pattern and practice of unconstitutional mass surveillance /<z’. Although plaintiffs

have contacted Baker numerous times regarding the status of the l\/lontgomery

investigation. they have been ignored /c/. at ll 4l. l"laintifl"s have, however` advised Baker

not to destroy the evidence on l\/lontgomery’s hard drives or the evidence contained in

l\/lontgomery’s oral testimony I(:l. at ll 42. On l\/l_arch 27, 2017, Montgomcry sent a Privacy

Act of1974 disclosure request to thc FBI, pursuant to 5 U.S.C. § 552(_a)(d)(l), in order to

obtain a copy of"any and all documents that refer or relate in any way to any and all 302

reports of the intervicw” conducted by the FBI.' Id. at ll 48. 011 l\/l.ay l, 2017, the FBI

confirmed its receipt of l\/lontgomery’s rcqucst, but it has failed to produce any documents

to him thus far. [a'. at ll 51.

l\/lontgomery also alleges that, on an unspecified date the l"Bl "‘raid[ed his:| housc,

|tied him| to a trec, threaten[cdl him and his family, and search|:ed_l and seiz[ed his]

property without a valid warrant or probable cause.” [a’. at ll 34. l\/Iontgomery claims that

he suffers from a brain aneurysm of which the FBI was aware at the time of the raid, and

he believes that the FBI conducted this search and seizure of his home and property in

order “to cause him severe emotional distress and potentially cause a fatal brain aneurysm.”

Ic/. at llll 33, 35.

Since these events, l\/lontgomery claims he has been the victim of multiple hacking

attempts against his home and business computers, as well as his Apple aecount, by each

' 'l`hc FD-302 "is an internal form used by the FBI to document interviews conducted in

law enforcement investigations." l)ecl, of l)avid l\/l. l~lardy ("l»~lardy Decl.”) |'l)kt. 27-5:]

ll 22.

of the defendants in this case [cl. at llll 43, 47. Speeifiieally, he alleges that he has traced

the ll) addresses of the hacl\'ing attempts to the l<`Bl’s Criminal .lustice lnformation Systems

office in Clarksburg` Wcst Virginia; the l)(_)l)’s l\letwork lnformation Center in Columbus,

()hio_; the Cl/\ in Washington, l),C.; and the CI/\ in llangley, Virginia. ]d. at lll| 44~»47.

l~le also claims that Comey, the l-"Bl, and other defendants have “continucd to harass” him,

and have "fed misleading and false information about him to journalists . . . to smear |his_|

name and destroy |his| reputation in order to render him an ineffective whistleblower."` ]d.

at ll 3().

Plainti'ff Klayman is a self-described “prominent public interest attorney who was

the founder of ludicial Watch, lnc. and now Freedom Watch lnc.” Compl. ll 53. Klayman

has brought several lawsuits against the federal government, its agencies, and its officers

for allegedly unconstitutionally spying on him and other /\mericans. Icz’. According to

Klayman, he has been “publicly trying to raise awareness of. and demand an investigation

into, 1_`)efendants’ ongoing illegal and unconstitutional surveillance of millions of

/\mcricansi as well as to prosecute wrongdoersM Ic/. at ll 54. 'l`hese efforts have included

meeting with the llousc lntclligcnce Committec, the Scnate lntelligence Committee, the

llousc .ludiciary Committee, and the Senate .ludiciary Committee about the surveillance

[cl. at ll 55. Klayman claims that he has been targeted by defendants because of these

meetings and his other attempts to reveal clefendants’ unlawful surveillance

ln particular, Klayman alleges that, “allnt)st immediately after" he contacted the

chairman of the l-louse lntelligence Committee regarding the l""l:~?»l`s cover-up of

l\/lontgomery’s evidence, he "received a purported ‘sof`tware update" on his Samsung

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(lalaxy" cell phone ]cf. at ll 56. /\'fter installing the update however, his phone "l)egzlli

acting abnormally,” and "‘tlie battery |beganl draining at an exponential rate." Icl. at ll 57.

Klayman allegedly took his phone to two different Vcri7,on Wireless storcs, and the

technicians confirmed to him that the abnormalities were “not normal and highly suspect."

ld. at ll 58. f-lc further claims that both Samsung and his wireless carrier confirmed that

neither ofthem had initiated the “sof`twarc update."' [c)’. at ll 59. According to l\/lontgomcry,

“battery drainage is a tell-talc sign that Defcndants have successfully hackcd into a cellular

phone,"` so Klayman was forced to purchase a new cell phone to avoid being monitored by

defendants [cl. at l|ll 60~-()1.

ln l\/Iay 2017, however, Klayman’s new phone began acting abnormally as wcll. ln

addition to the battery drainage problcm, his phone began "er'zrsiiig and downloading files

on its own and without |his| consent." /cl. at ll 62. Klayman claims that, according to

Wikil_/eal\'s, defendants have developed malware that hacks into smart phones remotely in

order to turn them "into recording and transmitting stations to spy on their targets.” Ia’. at

llll 63164. Klayman believes that defendants are using this malware to hack into his phone

because they are afraid that “l\/l<)iitgolner'y will reveal their ongoing conspiracy to the public

and that [Klaymanl will continue to push for an investigation."' Id. at ll 66.

Based on these allegations, plaintiffs filed this lawsuit on .lune 5, 2017, alleging

n eight claims for relief against the federal agencies and individual defendants See Compl.

Plaintiffs have sued the individual defendants in both their official capacities and their

individual capacitics, pursuant to Bz`vens v. Sz`x Unknown Namea’Age/its ofFed. Bureau 0f

chrcoll`cs, 403 U.S. 388 (l97l). See Compl. llll 7--16. In total, plaintiffs seek

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compensatory damages in excess of $16,000,000, punitive damages in excess of

$235,000,000, and equitable, declaratory, and injunctive relief. Ia’. at p. 32. Two weeks

after filing their complaint, plaintiffs filed a Motion for Temporary Restraining Order and

Preliminary lnjunction. See l\/lot. TRO & Prelim. lnj. [Dkt. #7] (“Pls.’ l\/lot.”).

l held a hearing in this case on June 23, 2017, during which l consolidated plaintiffs’

motion fo_r a temporary restraining order and preliminary injunction into a motion for a

preliminary injunction See Status Hr’g Tr. 29:1~7, June 23, 2017. l also set a briefing

schedule for defendants to submit any motions to dismiss, and l informed the parties that l

would rule on the motion for a preliminary injunction and any motions to dismiss

simultaneously See l\/lin. Order, June 27, 2017. The Government defendants subsequently

moved to dismiss and for partial summary judgment, and the individual defendants moved

to dismiss the claims against them in their individual capacities See Gov’t Defs.’ l\/[em.

ofP. & A. in Supp. ofl\/[ots Dismiss & for Partial Summ. J. & in Opp’n to Pls.’ l\/lot. TRO

& Prelim. lnj. [Dkt. #27-1] (“Gov’t Defs.’ Mem.”); l\/lem. in Supp. of lndividual-Capacity

Defs.’ l\/[ot. Dismiss [Dkt. #36-1] (“lndividual Defs.’ l\/lem.”). "l`hose motions_as well as

plaintiffs’ motion for a preliminary injunction_are now ripe

STANDARD OF REVIEW

A. Motion to Dismiss

The Govcrnment defendants have moved to dismiss Count Vl of plaintiffs’

complaint, which requests the appointment of a special master, for failure to state a claim

under Federal Rule of Civil Procedure l2(b)(6). To survive defendants’ motion, plaintiffs’

“[flactual allegations must be enough to raise a right to relief above the speculative level,

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on the assumption that all the allegations in the complaint are true (even if doubtful in

faet)." B€/ZAI[. Cr)rp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted).

/\lthough a trial court generally must consider a plaintiffs factual allegations as true, the

court should first “identifly] pleadings that, because they are no more than conclusions, are

not entitled to the assumption oftruth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Once

this Court has satisfied itself that plaintiffs have asserted “well-pleaded factual

allegations,” z`d., l must determine that the allegations are plausible That is, plaintiffs’

factual allegations must allow this Court “to draw the reasonable inference that the

defendant[sl lare] liable for the misconduct alleged,” ifthe factual allegations are proven

true. Malrl'xx Inz`fl`az‘z`ves, lnc. v. Sl`racusano, 563 U.S. 27, 46 (201 l).

Defendants have also moved to dismiss Counts 1-111, V, Vll, and Vlll of plaintiffs’

complaint for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil

Procedure l2(b)(l). ln ruling on such a motion, 1 “may consider the complaint alone or

may consider materials beyond the pleadings,” Bz'ckfom’ v. Gov’l' ofU.S., 808 F. Supp. 2d

175, 179 (D.D.C. 2011) (internal quotation marks omitted), and 1 must view “the factual

allegations of the complaint in the light most favorable to the non-moving party.” Loughll`n

v. United Sl'ates, 230 F. Supp. 2d 26, 35 (D.D.C. 2002). ln this case, that means thatl must

view the complaint in the light most favorable to plaintiffs but this does not diminish

plaintif`fs’ obligation “to state a claim of standing that is plausible on its face.” Arpaio v.

()bama, 797 F.3d 1 1, 19 (D.C. Cir. 2015) (internal quotation marks and alteration omitted),

cert cz’em'ed, 136 S. Ct. 900 (2016), reh’g denied, 136 S. Ct. 1250 (2016).

B. lVlotion for Summary Judgment

The Government defendants have moved for partial summary judgment on Count

VI of plaintiffs’ complaint, which seeks to compel the FBI to comply with l\/lontgomery’s

Privacy Act request. Under Rule 56(a) ofthe Federal Rules of Civil Procedure, this Court

should render summary judgment in favor of defendants unless the pleadings, and any

attachments to the pleadings, establish a “genuine dispute as to any material fact.” The

moving party bears the initial burden of identifying evidence that demonstrates that there

is no genuine issue of material fact. Celolex Corp. v. Calrell, 477 U.S. 317, 323 (1986).

Once the movant_here, defendants_makes that showing, the burden shifts to plaintiff to

“come forward with specific facts showing that there is a genuine issue for trial.”

Maz‘sushl'ta Elec. lndus. CO. v. Zenl`th Raa'io Corp., 475 U.S. 574, 587 (1986) (internal

quotation marks omitted). Unless plaintiffs can demonstrate a genuine issue of material

fact_which requires that they “cast more than metaphysical doubt” on the evidence_

defendants are entitled tojudgment as a matter oflaw. D0e v. Gates, 981 F.2d 1316, 1323

(D.C. Cir. 1993).

C. Motion for Preliminary lnjunction

Plaintiffs are seeking a preliminary injunction, and thus they must establish “[ 1] that

[they arel likely to succeed on the merits, [2] that [they are] likely to suffer irreparable

harm in the absence of preliminary relief, [3] that the balance of equities tips in [theirl

favor, and [4] that an injunction is in the public interest.” Aamer v. Obama, 742 F.3d 1023,

1038 (D.C. Cir. 2014) (internal quotation marks omitted). rl`he third and fourth factors

“merge when the Government is the opposing party.” Colo. Wila’ Horse v. Jewell, 130 F.

10

Supp. 3d 205, 220¢21 (D.D.C. 2015) (internal quotation marks omitted). Because the relief

plaintiffs seek is “an extraordinary remedy,” a preliminary injunction “should be granted

only lif they carryl the burden of persuasion.” Chap/az`ncy ofFull Gospel C/mrches v.

England, 454 F.3d 290, 297 (D.C. Cir. 2006).

DISCUSSION

A. Count I: Fourth Amendment Violation

l\/[uch like their claims in Klayman 1 and Klayman II, plaintiffs allege that the

individual-capacity defendants violated the Fourth Amendment by unreasonably searching

and seizing their personal records, as well as the records of “millions of innocent U.S.

citizens,” without reasonable suspicion or probable cause and without describing with

particularity the place to be searched or the person or things to be seized. Compl. lll 694-

70. Spccifically. plaintiffs allege that thc NS/\ collected their electronic comrmlnications

using three distinct methods: (_l) the I)RlSl\/l program,2 (2) a resurrected version of the

NSA bulk collection program,3 and (’3) hacking of their personal electronic devices with

2 "l`he PRlSl\/l program is an ongoing targeted collection program conducted pursuant to

Scction 702 ofthe l*`oreign lntelligence Surveillance Act (“FISA"). See 50 U.S.C. § 1881a.

Under the PRlSl\/l program, the Government uses selectorsilike e-mail addresses_to

collect online communications of non-U.S. persons located abroad See K/ayman, 2017

er 5635668, at *3~-4, 13 (describing the PRlSl\/l program). lmportantly, Section 702

expressly prohibits the Government from intentionally targeting a U.S. person overseas or

any person known to be in the United States See 50 U.S.C. § 1881a(b).

3 Beginning in May 2006, and pursuant to its authority under Section 215 of the USA

PATRIOT Act, the Government conducted the bulk telephony metadata program that

plaintiffs challenge today. See Pub. L. No. 107-56, 115 Stat. 272, 287 (2001) (codified at

50 U.S.C. § 1861(a)(1)). As part of this program, the Government obtained orders from

the Foreign lntelligence Surveillance Court (“FISC"`) directing certain telecommunications

service providers to produce, in bulk, ca11-detail records, which contained metadata about

telephone calls, including the time and duration of a ca11 and the dialing and receiving

ll

Cl/\ malware /a’. l|ll 20, 63. Plaintiffs allege that they themselves have been targets of this

surveillance based on the fact that they “have worked visibly, in the public eye, to raise

awareness off and demand investigation into” defendants’ illegal surveillance laf. at lll| 30,

66. 'l`hc individual defendants counter that plaintiffs have failed to establish standing to

pursue their l%`ourth Amendment claim, and thus Count 1 must be dismissed See lndividual

l)ef`s.’ 1\/Icm. 4; Gov’t l)cfs.’ l\/lcm. 9. 1 find that defendants arc correct.

1"`irsti plaintiff"s` standing to challenge defendants’ alleged surveillance under the

l)R_lSl\/l program is clearly foreclosed by the Suprcme Court’s decision in C/ap/)er v.

A)nnes/y lnl'ernalic)na[ USA, 568 U.S. 398 (2013). 1n Clap[)e/”, the Suprcme Court held

that, in order to establish Article 111 standing, plaintiffs challenging surveillance under the

PRlSl\/l program must sufficiently allege that “potential future surveillance is certainly

impending or is fairly traceable to lthe PRlSl\/l program:|." Ia'. at414. Plaintiffs challenging

the PRISl\/l program must therefore set forth facts tending to show that: (1) they have

communications with persons abroad; (2) their foreign contacts would be targeted by the

PRISl\/l program; ('3) the (:}overnmcnt would seek l"`lSC authorization to surveil their

foreign contacts under the PRISl\/l program; (4) the Government would actually succeed in

numbers See Klayman, 2017 WL 5635668, at *2. Once the data was collected, the

Government created a repository where that data could be accessed and queried by NSA

analysts for the purpose of detecting and preventing terrorist attacks See z`a’. ln 2015,

however, in response to many of the same Fourth Amendment concerns 1 articulated in my

initial opinion in Klayman I, see Klayman v. Obama, 957 F. Supp. 2d 1, 38-44 (D.D.C.

2013), vacated anal remanded, 800 F.3d 559 (D.C. Cir. 2015) (per curiam), Congress

passed the USA FREEDOM Act, Pub. L. No. 114-23, 129 Stat. 268, which amended

Section 215 ofthe USA PATRIOT Act to prohibit bulk collection by the Government. See

Klayman, 2017 WL 5635668, at *7. The bulk telephony metadata collection program

under Section 215 is therefore now defunct.

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obtaining communications from their foreign contacts; and (5) their communications with

their foreign contacts would bc among those collected pursuant to the PRlSl\/l program.

.S'ce /`r/. at 41 1 14 (requirin g the plaintiffs in C.`la}),z)e/' to allege “specif'ic facts demonstrating

that the communications oftheir foreign contacts will be targeted”). l')lainti'ffs clearly have

not carried their burden here

ln fact, plaintiffs have not even alleged---in their complaint, their l\/lotion for a

Preliminary lnjunction. or their supporting affidavits#that they communicate with any

persons abroad, let alone that they have reason to believe that their foreign contacts have

been targeted under the PRlSl\/l program. l)laintiffs" allegations here arc therefore even

less colorable than those l dismissed for lack ofstanding under C[a])/)er in Klayman l and

[\’/ayma/»z //. See Klawnan, 2017 WL 563668, at fl3 (holding that Klayman failed to

establiin standing to challenge the l)RlSl\/[ program, even where he alleged that he

"frcquents and routinely telephones and e-mails individuals and high-ranking government

officials in 1s1'acl" and communicates with persons in several other nations). Plaintiffs

accordingly lack standing to challenge defendants’ alleged surveillance under the PRlSl\/l

program.

Sccond, plaintiffs claim that thcy, and millions of other Americans, have been

targeted for surveillance by the bulk telephony metadata collection program formerly

conducted by the NSA pursuant to Scction 215 of the 11 S/\ l)/\"l"RlO'l` Act. See Klaylnan,

2017 Wll 563668, at *2 (discussing the history of the government’s now defunct bulk

telephony metadata collection program). But as l held in Klayman 1 and Klayman ][, the

llS/\ l"Rl£l/ll)(',`)l\/l /\ct expressly prohibits the bulk collection of telephony metadata under

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Section 215, See US/\ l-"l`{l;`ll_il)(j_)l\/l /\ct §§ 103, 109, 129 Stat` at 272, 276_; 50 U.S.C.

§ l861(c)(3); see also Klay)nan, 2017 Wl_r 563 5688, at ”‘9 (explaining that bulk telephony

metadata collection pursuant to Scction 215 is now prohibited by statute-»---under the USA

l"Rlilll)Ol\/l /\ct-»--and by Ordcr of the lllSC). Because l must assume, absent evidence to

the contrary, “that government officials will conduct themselves properly and in good

faith,"` /n /‘e Navy (l/ici/)[clz'/icjt’, 850 F. Supp. 2d 86, 94 (D.D.C. 2012), l presume that

defendants have acted in accordance with the limitations imposed by the USA FREED(f)l\/l

/\ct.4 'l`hus, because the bulk telephony metadata collection program is no longer in

existence and plaintiffs have offered no evidence to suggest that defendants have

resurrected it in violation of l"*` lSC order and statutory command_plaintiffs" challenges to

that program do not present a live Article 111 case or controversy. Clar/ce v. United States,

915 1*`.2d 699, 701 (D.C. Cir. 1990) (instructing that a court must dismiss a case as moot if

“events have so transpired that the decision will neither presently affect the parties’ rights

nor have a more-than-speculative chance of affecting them in the future” (internal

quotation marks omitted)).

Third, plaintiffs allege that their personal cell phones and computers have been

hacked by defendants and that l\/lontgomery has traced the lP addresses ofthe hacks to the

NSA, thc DOD, and the CIA. Compl. llll 43-47, 60-64, 86-87, 95. But plaintiffs’ only

support for these allegations is l\/lontgomery’s own opinion that his computer and

4 As l already noted in Klayman 1 and Klayman 11, even if defendants tried to resurrect the

Section 215 bulk collection program in the future, the FlSC has already made clear that it

would not sanction such surveillance See Klayman, 2017 WL 5635668, at *9.

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Klayman’s phone showed signs ofbeing hackcd. Compl. llll 43-47, 60-61. Without more,

these sparse allegations are “similar to those in a number of cases that district courts have

dismissed for patent insubstantiality: that plaintiff was subjected to a campaign of

surveillance and harassment” by the Government. Tooley v. Napo[z'tano, 586 F.3d 1006,

1010 (D.C. Cir. 2009); see also, e.g., Lewl's v. Bayh, 577 F. Supp. 2d 47, 54~55 (D.D.C.

2008) (_rejccting as frivolous claims that a U.S. Senator orchestrated a program of hacking

into plaintiff” s personal computer and monitoring his phone calls); Delal`ne v. United States

Poslal Serv., 2006 WL 2687019, *2 (D.D.C. 2006) (dismissing complaint where plaintiff

alleged that the U.S. Postal Service kept her under surveillance by unlawfully using

electronic devises), aff’a’ No. 06-5321, 2007 U.S. App. LEXIS 7371 (D.C. Cir. June 1,

2007). Because plaintiffs’ claims regarding hacking oftheir cellular phones and computers

constitute the sort of “patently insubstantial claims” routinely dismissed on jurisdictional

grounds in our Circuit, 1 find that they, too, must be dismissed Tooley, 586 F.3d at 1009,

1010 (“A complaint may be dismissed on jurisdictional grounds when it is patently

insubstantial.” (internal quotation marks omitted)).

B. Count II: First Amendment Violation

ln addition to their Fourth Amendment challenge to defendants’ alleged surveillance

programs, plaintiffs also challenge those programs under the First Amendment.

Speci'fically, Klayman alleges that he has “suffered a chilling effect in his First Amendment

rights” because he and his clients, including l\/lontgomery, are “afraid to speak over the

phone and communicate otherwise for fear of being surveilled by Defendants.” 101 at ll 32.

Klayman further asserts that his attorney-client privilege with his clients has been

15

compromised as a result of dcfendants" surveillance of his communications la'. Plainti'f"fs

also broadly contend that defendants" alleged actions "chill, ifnot ‘kill’ speech” and violate

their freedom of association by making “over a hundred million of /\mericans” afraid to

contact other persons via cell phone, the internet. or social media. [a’. at llll 76-77.

Unfortunatcly for plaintiffs l find that they lack standing to pursue this 1"irst Amendment

claim. l-low so?

rl`he basis of plaintiffs" l"`irst Amendment claim is that the government has engaged

in a pattern or practice of unlawful surveillance that has caused a chilling effect on their

associations and communications and has caused them to fear being spied on by the

government 1a’. at llll 32, 76-77. But in order to establish that defendants’ conduct caused

a chilling effect sufficient to constitute a First Amendment violation, plaintiffs must first

sufficiently allege that they have reason to believe that they were actually surveillcd. As 1

have already concluded however, plaintiffs have not made this showing lnstead,

plaintiffs’ assertions that they "are afraid to speak over the phone” because the Government

may be monitoring their communications, Compl. l| 32, constitute nothing more than a

subjectivc---and baseless-erar of` surveillance, which the Supreme Court has held to be

insufficient to confer standing in thc l"irst Amendment context See C`lappe/‘, 568 U.S. at

418 (explaining that allegations of a subjective chilling effect on speech and association

“‘are not an adequate substitute for a claim ofspecific present objective harm or a threat of

specific future harm"" (quoting Laird v. Tal'wn, 408 U.S. 1, 13-14 (1972)). '1"hus,

plaintiffs’ self-inflicted f~‘ar of surveillance, without more, is not fairly traceable to

16

defendants’ alleged surveillance activities and plaintiffs accordingly lack standing to

pursue their lr`irst Amendment claim. See (j'la;);)er, 568 U.S. at 418.

C. Count lV: Appointment ofa Special Master

Plaintiffs next request that this Court “appoint a Special Master with the appropriate

security clearance to conduct a real and [thoroughl investigation of the information

contained on the hard drives” that Montgomery gave to the FBI and of the hacks of

Klayman’s cell phone and l\/lontgomery’s computer. Compl. llll 94-95. Appointment of

a special master in this eontcxt, however, would be inappropriate under the l3 ederal Rules

of`Civil Procedure See Gov`t l)efs.’ l\/lcm. 28.

llnder li`edcral Rulc of Civil Procedure 53(a)(1), a district court may appoint a

special master only to:

“(/\) perform duties consented to by the parties;

(13) hold trial proceedings and make or recommend findings of fact on

issues to bc decided without ajury if appointment is warranted by:

('i) some exceptional condition; or

(ii) the need to perform an accounting or resolve a difficult

computation of damages; or

(C`) address pretrial and posttrial matters that cannot be effectively and

timely addressed by an available district judge or magistrate judge of

the district."'

l\lonc of these circumstances are present in this case Defendants have understandably

made clear that they do not consent to the appointment of a special master. See Gov’t

Defs." l\/lcm. 29. And plaintiffs are requesting a special master to “conduct a real and

through[sic] investigation ofthe information contained on the hard drives,” so the damages

provision of Rulc 53('a)(1`) is not applicable Compl. llll 94495. Similarly, plaintiffs have

not alleged---and 1 have no reason to believe#~that this Court is ill-equipped to address any

17

pretrial matters in an effective and timely manner. C_'f.` Maclrz`gal Azirlio Labs., /nc. v. Cel/(),

lilcl., 799 l".2d 814, 821 n.2 (2d Cir. 1986) ("`l_"l"lhc fact that the case involves complex

issues of fact and law is no justification for reference to a l\/lastcr, but rather is a

|com|pelling reason for trial before an experienced judge."’ (internal quotation marks

omitted)). '1`hat accordingly leaves only the "exceptional condition” clement of Rule 53.

But plaintiffs have offered no justification as to why their request constitutes an

“cxccptional condition” sufficient to justify the appointment ofa special master, and 1 find

none (.l/.` /l/lee/‘r)/)Ol v. Mee.s'e, 790 l"".2d 942, 961 (l).C. Cir. 1986) (“Thc decision whether

to appoint a master lies within the discretion ofthe trial court. Such appointments arc the

exception and not the rule, and the decision not to name one will very rarely constitute an

abuse of discretion.” (internal citations and quotation marks omitted)). Plaintiffs’ request

to appoint a special master must accordingly be denied

D. Count V: Conversion

Plaintiffs’ fifth cause of action alleges a claim of common law conversion.

Specifically, l\/lontgomcry alleges that the FBl, under the direction ofComey, induced him

to turn over 47 hard drives containing evidence of defendants’ illegal surveillance, and he

requests that 1 issue an order requiring defendants either to return the hard drives to him or

to compensate him “with the fair market value of the hard drives at the time of the

conversion.” Ia’. at l| 101, Unf`ortunately for plaintiffs 1 find that they have failed to

properly allege a claim for conversion because the 14`131 and Comey_in his official

capacity ------ are immune from suit.

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lt is axiomatic that "‘ltlhe United States, as sovereign, is immune from suit save as

it consents to be sued . , ., and the terms ofits consent to be sued in any court define that

court’s jurisdiction to entertain the suit."` United S/‘ales v. M/`lehell, 445 U.`S. 535, 538

( 1980) (intcrnal quotation marks omitted). '1`he only waiver ofsovereign immunity that is

conceivably applicable in this case is the lr`cderal fort Claims Act (“l"TCA”), 28 U.S.C.

§§ 1346(b), 2679(a), which waives the United States’ sovereign immunity for certain

common-law tort claims such as conversion The FTCA instructs however, that the

"cxclusive rcmcdy" for a common law tort, such as conversion “is an action against the

United States rather than against the individuals or the particular government agencies”

l)o/'/nan v. T/zo/'")'il)z/rg/i, 740 l". Supp. 875, 879 (D.D.C. 1990); see also Sp/'i`)'zger v.

Siip)/'eine (`ow'r off/re Ui'ill'ec/Slai‘es, l\lo. ()4-5140, 2004 Wl_/ 2348134, at *1 (D.C. Cir. ()ct,

18, 2004) (per curiam) ("[:fl"]he United States is the only proper defendant in an [FTCA:'|

action."’); 28 ll,S.C. § 2679 (_"'1`he authority of any federal agency to sue and be sued in its

own name shall not be construed to authorize suits against such federal agency on claims

which are cognizable under section 1346(1)) of this title, and the remedies provided by this

title in such cases shall be exclusive.”). Thus, a plaintiffcannot invoke the FTCA by filing

suit against a government agency or a government official in his official capacity. See Cox

v. Sec. o/`Lal)or, 739 1". Supp. 28. 29 (D.D.C. 1990) ("Since the plaintiffelected to sue the

Secretary of 1 ,abor in her official capacity rather than the government itself, the complaint

must fail for that reason alone for lack ofsubjcct matter jurisdiction.”). And a plaintiff also

may not sue a government official in his individual capacity under the l"'l`CA. See ./o/znson

v. 1_/)1/'/erlSl(’/le.s', 642 l". Supp. 2d 1, 3 n.3 (l").l).C. 2009) (_“()nly the United States is a

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hrolier defendant to a claim under the l'*"l`C/\. 'l`hcref`ore, a claim under the li`"l`C/\ against

thc BOP’s l)irector in his individual capacity must be dismissed for lack of subject matter

jurisdiction.” (intcrnal citations omitted)).

l-lerc, plaintiffs have failed to name the United States as a defendant lnstead, they

have sued a government agency ------- the 1*'131---and a government ofl'icial---Comey. See

Compl. p. 28. 1’laintiffs’ failure to name the United Statcs as a defendant therefore

“1'ec1tlires dismissal for lack of subject-matter jurisdiction"’ because plaintiffs have not

established a waiver ofsovereign immunity under thc F'l`CA. ./o/inson v. Vefe/'ans Af/alrs

Mecl. (_'f/~., 133 l<`. Supp. 3d 10, 17, 14 (D.D.C. 2015) (“lfsovercign immunity has not been

waived a claim is subject to dismissal under Rule 12(b)(1) for lack of subject matter

jurisdiction.” ( internal quotation marks omitted)).

E. Count VI: Injunctive Relief Under the Privacy Act of 1974

ln Count VI ofthe Complaint, plaintiffs seek to compel the FBI to comply with the

Privacy Act of 1974 and turn over all documentation related to l\/lontgomery’s interview

with the FBI. Compl. at ll 108. Spccifically, plaintiffs seek "any and all documents that

refer or relate in any way to any and all 302 reports of [:l\/lontgomery’s`_l interview" with the

1"131. /rl. at ll 103. l find, however, that the requested records are exempt from disclosure

under the l)rivacy Act, and thus l must grant summary judgment in defendants’ favor.

'1`he Privacy Act of 1974, 5 U.S.C. § 552a, “regulates the collection, maintenance,

use, and dissemination of information about individuals by federal agencics.” Mo/)le.y v.

(1'1/1, 924 l-". Supp. 2d 24, 35 (D.D.C. 2013) (internal quotation marks omitted), a_/`“"a' 806

l".3d 568 (D.C. Cir. 201 5). Under the Act, any “agency that maintains a system of records”

20

must "upon request by any individual to gain access to his record or to any information

pertaining to him which is contained in the system` permit him . . . to review the record and

have a copy made of all or any portion thereof in a form comprehensible to him."` 5 U.S.C.

§ 552a(d`)(1). But agencies are permitted to exempt systems of records from this

requirement under certain circumstances See /.'o’. § 552zi(j)(2). Spccifically, exemption

(j)(2) applies if “( 1) the records are stored in a system of records that has been designated

by the agency to be exempt from the Privacy Act"s disclosure requirements and (2) thc

system of records is ‘maintained by an agency or component thereof which performs as its

principal function any activity pertaining to the enforcement of criminal lawl:sl’ and

consists of °iiif<)i'inati<)n compiled for the purpose of a criminal investigation."" Boe/z/n v.

1713/19481*`. Supp, 2d 9, 18 (D.D.C. 2013) (quoting 5 U.S.C. § 552a(j)(2)).

l'lcre_ the 302 reports that plaintiffs seek fall squarely within exemption (j)(2). 'l"he

1"111 is an agency that "performs as its principal function . . . the enforcement of criminal

lawls|." lcl. And plaintiffs do not dispute that all 302 reports#including the one requested

here-arc maintained within the l~*`Bl"s Central Records System, see 1’1s’ ()pp’n 25-27,

which is an exempt system of records pursuant to 28 C.l".R. § 16.96. See 28 C.l"'".R. § 16.96

(exempting the l"` 131"s Ccntral Records System from the access provision in 5 U.S.C.

§ 552a(d)); see also Lee v. FBI, 172 F. Supp. 3d 304, 308 (D.D.C. 2()16)(“'1`he FBl’s CRS

is a system of records specifically exempt from the individual access provision , . . of the

l)rivacy Act to the extent permitted under 5 U.S.C. § 552a(l)(2), as implemented by 28

C.l".R. § 16.96."). /\lthough our Circuit has held that documents contained in the l"`Bl’s

(i`entral l{ccords Systcm "qualify for exemption only if they constitute law enforcement

21

records within the meaning of the statute," the requested documents at issue in this case

clearly meet that standard Doe v. FB[, 936 1*`.2d 1346, 1353 (D.C. Cir, 1991) ('emphasis

added). 1"`1_)-302 reports are necessarily related to the FBl’s law enforcement function See

lelardy Decl. ll 22 (defining a 302 report as a form "used by the l*`Bl to document interviews

conducted in law enforcement investigations”). And this court has held that exemption

(j)(2) specifically applies to 302 reports See, e.g., Taylor v. U.S. Dep ’l o/‘”JZ.istice, 257 F.

Supp. 2d 101, 107 (D.D.C. 2003) (concluding that l"D-3()2 reports contained in the FBl’s

Ccntral Rccords System “arc wholly exempt under l:Privacy /\ct| exemption (j)(2)”).

l)ef`cndants’ motion for summary judgment on this count must accordingly be granted

F. Count VII: Fraudulent Misrepresentation

Plaintiffs next claim that the FBI, “at the direction of and under the leadership of

Defendant Comey,” falsely represented to Montgomery that the FBI would conduct an

investigation into the evidence contained on his hard drives and in his oral testimony. 1a’.

at ll 110. '1`hey allege that the li`Bl made this false representation with knowledge of its

falsity and with an intent to deceive l\/lontgomery in order to induce him to turn over his

hard drives and provide testimony under oath. lcl. at ll 111. llnfortunately for plaintiffs

their claim for fraudulent misrepresentation suffers the same fate as their claim for

conversion

l"raudulcnt misrepresentation like conversion, is a common-law tort claim that may

only be asserted against the United States pursuant to a waiver of sovereign immunity

under the l*"l"C/\. /\nd “tlie United States is the only proper defendant in an [:l"<"l`C/-\]

action."y S/)i'inger, 2004 \'l\/l1 2348134, at *1. lelerc, plaintiffs have failed to name the

22

l_lnited Statcs as a defendant Se.e Compl. p. 30 (naming Comcy and the l*`Bl as the sole

defendants under Count Vll). "l`hus, like their claim for conversion, plainti'f"fs’ claim for

fraudulent misrepresentation must be dismissed for lack ofsubject matterjurisdiction See

FDI(,` v. Meyer, 510 U.S. 471, 475 (1994) (“Sovereign immunity is jurisdictional in

naturc."').

G. Count VIIl: Fourth Amendment Violation

The second Fourth Amendment claim in this case is different in kind from the first,

but it ultimately must suffer the same fate. Montgoinery claims that the FBI violated his

l"ourth Amendment rights when its agents raided his home, tied him to a tree, threatened

him and his family, and searched and seized his property without probable cause or a

warrant. Compl. ll 1 17. 'fo compensate him for his alleged injuries he seeks an award of

compensatory and actual damages in excess of$3 million and punitive damages in excess

of $30 million. 1(/. at ll 120. l have concludcd, however, that l\/lontgomcry’s claim is

barred llow so'?

'1`he Supreme Court has made clear that “|_fi:|edcral constitutional claims for damages

are cognizable only under Bivens[, 403 U.S. at 388], which runs against individual

government officials pcrsonally. Loii/nief v. United S/ales, 828 13`.3d 935, 945 (D.C. Cir.

2016`), ()therwise, "s<)vei'eign immunity shields the Fedcral Government and its agencies

from suit.” Del)/'ew v. Atwooa’, 792 l"`.3d 1 18, 124 (l).C. Cir. 2015). Here, plaintiffs named

only the l"` 131 as defendant for the alleged violation of l\/lontgomery’s l"`ourth Amendment

rights and resulting injuries; they did not name any defendants in their individual capacities

or otherwise allege a B/'vens claim. See Compl. p. 31. Plaintiffs" fourth Amendment claim

23

under Count Vlll must therefore be dismissed for lack of subject matterjurisdiction C/.`

Meye/", 510 U.S. at 457 (“Sovereign immunity isjurisdictional in nature.”).

H. Plaintiffs’ Motion for a Preliminary Injunction

1n Count 111 of their Complaint, plaintiffs request preliminary and permanent

injunctive relief to stop the government from wiretapping and surveilling them in violation

of their flourth Amendment rights Compl. llll 81-88. 1n their l\/lotion for a Preliminary

lnjunction plaintiffs request additional equitable relief that encompasses Counts \/, Vl,

and Vll of their Complaint. Specifically, plaintiffs request that l issue an order enjoining

defendants f`rom: (l) destroying evidence of their constitutional violations contained on

l\/lontgomcry"s hard drives; (2) destroying documents related to l\/lontgomcry’s interview

with the l""Bl; and (3) continuing their conversion ofl\/lontgomery’s hard drives Pls.’ l\/lot.

15-16. Unf`ortunately for plaintiffs 1 find that they have not met their burden for a

preliminary injunction for any ofthe relief that they seek.

'l"o begin with, plaintiffs cannot show a likelihood of success on the merits5 on any

ofthe claims that form thc basis of their motion for a preliminary injunction As discussed

plaintiffs cannot prevail on their l"ourth Amendment claim regarding unlawful surveillance

5 'l`here is tension in the case law regarding whether a plaintiff seeking a preliminary injunction must show

a "likelihood of success on the merits” or a “substantial likelihood of success on the merits.” Compare

Wiii/er v. l\lal. Res. De/.` Councz'/, 1nc., 555 U.S. 7, 20 (2008) (requiring the plaintiffto show “1ikely” success

on thc merits), with Sollera, Inc. v. FDA, 627 F.3d 891, 893 (D.C. Cir. 2010) (requiring the plaintiffto show

a “substantial likelihood” of success on the merits). Unfortunately, our Circuit has avoided clarifying the

standard See, e.g., PursuingAmerl'ca's G)"ealness v. Feal. E/ec. Com/n., 831 F.3d 500, 505 n.l (D.C. Cir.

2016) (“We need not resolve here any tension in the case law regarding the showing required on the merits

for a preliminary injunction . . . [because plaintiffl meets either standard.”). But even if plaintiffs need

only show a likelihood of success on the merits_the less demanding standard~they have patently failed

to do so. 1 therefore need not resolve the ambiguity our Circuit has left in play on this issue.

24

because they lack standing to do so, they cannot prevail on their common-law tort claims

for conversion and fraudulent misrepresentation because they have sued the wrong parties

and they cannot prevail on their claim under thc Privacy /-\ct because the requested

documents are exempt from disclosure Plaintiffs thus have failed to satisfy the first------and

most important~---factor for a preliminary injunction6 See EleC. Pr/'vacy ln_]‘o. Cl/”. v. FTC,

844 l"`. Supp. 2d 98, 101 (D.D.C. 2012) (‘“l`he likelihood ofsuccess requirement is the most

important of these factors.").

_l)laintiffs also have not shown that they are likely to suffer irreparable harm in the

absence of an injunction Because 1 have already concluded that plaintiffs’ allegations of

government surveillance and hacking arc speculative at bcst, those allegations necessarily

cannot support a finding of irreparable harm. See B/”own v. Disl. of('..`ola)nb/.`a, 888 1*`. Supp.

2d 28q 31< 2 (l').l`_).C. 2012) (explaining that the standard for establishing irreparable harm

is "quite liigli,” and that the impending harm must “be both certain and great” as well as

"actual and not theoretical"'). /\nd plaintiffs’ allegations ofconversion non-disclosure and

fraudulent misrcprcsentation fare no better. Plaintiffs allege that they would suffer

irreparable harm if l\/lontgomery’s hard drives and video interview are not preserved

because they constitute “direct proof" of defendants’ unconstitutional spying on which this

° Our Circuit has traditionally evaluated the four factors required for a preliminary injunction on a “sliding

scale,” such that, “[ilftlie movant makes an unusually strong showing on one ofthe factors then it does

not necessarily have to make as strong a showing on another factor.” Davl's v. Pensl'on Ben. Guar. Co/'p.,

571 F.3d 1288, 1291-92 (D.C. Cir. 2009). lt is not clear, however, whether our Circuit’s sliding-scale

approach survives the Supreme Court’s decision in Winler, 555 U.S. at 7. See Sher/ey v. Selvelias, 644 F.3d

388, 393 (D.C. Cir. 201 l) (“[Wle read Winler at least to suggest ifnot to hold that a likelihood of success

is an independent, free-standing requirement for a preliminary injunction.” (internal quotation marks

omitted)). l need not, however, resolve our Circuit’s lack ofclarity on this issue because 1 conclude that a

preliminary injunction is improper “even under the less demanding sliding-scale analysis." Ia’.

25

lawsuit is premised Pls." l\/lot. 16. The harm that plaintiffs fear, however, is unwarranted

At the status conference in this case, counsel for the Government defendants represented

to this Court that the “hard drives are in a secure facility with the [llntelligence

[Clommunity’s Office of lnspector General” and that there was “no risk” that they were

“going to be destroyed anytime soon.” Status Hr’g Tr. 15:13~18, 19:13-15, June 23, 2017.

1 also instructed the Government to put a litigation hold on the video of the interview, as

well_as any related FD-302 reports ia’. at 33:16-25, and the Government has confirmed

that it has done so. Gov’t Defs.’ l\/lem. 42. Plaintiffs therefore cannot show that the

impending harm they fear is anything more than theoretical

Finally, plaintiffs have not shown that the balance of equities weighs in favor of

granting a preliminary injunction here. Plaintiffs’ primary argument on this point is that,

without preservation of the hard drives and the interview tapes they “will lose the material

evidence in this case.” Pls.’ l\/lot. 18. But as 1 have already explained the Government has

represented to this Court that there is a litigation hold preventing the destruction of either

the hard drives or the interview tapes T here is accordingly no need for a preliminary

injunction to ensure that plaintiffs’ material evidence is preserved Plaintiffs also claim

that public interest considerations counsel in favor of issuing an injunction here because

"“|i|t is always in the public interest to prevent the violation of a party’s constitutional

rights.”’ Ia’. at 19 (quoting/l)n Freea’o)n Def. Initiatl`ve v. Wasn. Melro. Area Transz't/luth.,

898 F. Supp. 2d 73, 84 (D.D.C. 2012). But, as 1 have already concluded plaintiffs have

not made the requisite showing that a constitutional violation actually occurred here.

26

Plaintiffs accordingly cannot show that it Would be in the public interest to grant an

injunction to prevent the alleged unconstitutional surveillance they allege has occurred

CONCLUSION

This case marks what 1 expect will be the end of this Court’s role in adjudicating

plaintiff Klayman’s challenges to the Govemment’s various surveillance programs While

the diligence with which Klayman has sought to protect Americans’ constitutional rights

against Government overreach over the last four and a half years is admirable, the

allegations in this case, though sincerely advanced are largely frivolous and duplicative of

ones 1 have already found to be insufficient in Klayman 1 and Klayman 11 . As such, 1 have

no choice but to dismiss this case as well.

Thus, for all the reasons stated herein, the Government Defendants’ Motion to

Dismiss and for Partial Summary Judgment is GRANTED, the lndividual Defendants’

Motion to Dismiss is GRANTED, and Plaintiffs’ Motion for a Preliminary Injunction is

DENIED. Plaintiffs’ complaint is accordingly DISMISSED with prejudice A separate

Order consistent with this decision accompanies this Memorandum Opinion.

(' ' t

\&\lmmm\l

Rch iARba-‘. LEoN

United States District Judge

27