Obama v. Klayman, 800 F.3d 559 (D.C. Cir. 2015)
On August 28, 2015, the federal Court of Appeals for the District of Columbia vacated the preliminary injunction against the NSA’s bulk telephony metadata program that District Judge Richard Leon had granted on December 16, 2013, but stayed pending appeal. Klayman v. Obama, 957 F.Supp.2d 1. The three judges on the D.C. Circuit panel agreed that the plaintiffs had failed to establish standing to seek a preliminary injunction. However, while Judges Williams and Sentelle agreed that the plaintiffs had not met the standard in Clapper v. Amnesty International USA, 133 S.Ct. 1138 (2013), Judge Brown reasoned that that standard was met, but not the higher standing requirement for a preliminary injunction. Dividing again, Judges Williams and Brown agreed that the case should be remanded for the district court to determine whether it would be appropriate to grant the plaintiffs limited discovery for the purpose of establishing standing. Judge Sentelle opined that the case should be dismissed.
The Court of Appeals issued its opinion after Congress’ enactment of the USA Freedom Act (the “Act”) on June 2, 2015. The FISC had reauthorized the NSA’s bulk collection of telephony metadata program (the “Program”) on June 29 until August 28 (Primary Order, BR 15-75) and on August 27 until November 29, the end of the 180 day period that the Act had set for its prohibition of the Program to go into effect (Primary Order, BR 15-99). The FISC’s reauthorizations meant that despite the enactment of the USA Freedom Act, the substantive issue before the Court of Appeals remained whether Judge Leon had correctly enjoined the Program on the ground that it likely violated the Fourth Amendment. The Court failed to address this issue when it decided that the plaintiffs lacked standing.
Judge Brown’s opinion
Plaintiffs Larry Klayman and Charles Strange had sought to prove standing by offering a FISC order leaked by Snowden that required Verizon Business Network Services (“VBNS”) to produce customer metadata for a three-month period in 2013. Although the plaintiffs were customers of Verizon Wireless, rather than VBNS, Judge Brown stated that Judge Leon had “eloquently explain[ed]” that as the largest wireless carrier in the US, Verizon Wireless must have been included in the NSA’s program of creating a comprehensive metadata database. 800 F.3d at 563. Thus, by contrast to the plaintiffs in Clapper v. Amnesty International USA, the Klayman plaintiffs had sought to prove standing by “offer[ing] an inference derived from known facts.” Id. at 564.
Despite finding this inference sufficient to meet “the bare requirements of standing,” Judge Brown reasoned that more rigorous proof of standing was needed for the plaintiffs to establish the “substantial likelihood of success on the merits ”required for a preliminary injunction. Id. at 562, 564. This “higher burden of proof” was not met because “[a]lthough one could reasonably infer from the evidence presented the government collected plaintiffs’ own metadata, one could also conclude the opposite.” Id. at 564.
Although she decided to remand the case “for the district court to determine whether limited discovery to explore jurisdictional facts is appropriate,” Judge Brown warned that discovery might be stymied by government attempts to keep the Program’s details secret. Id.
Judge Williams’ opinion
Although he joined Judge Brown in ordering a remand, Judge Williams differed in finding the plaintiffs’ proof of standing no better than that in Clapper v. Amnesty International. The fact that the plaintiffs were customers of Verizon Wireless, rather than VBNS, could not be overcome by reasoning that without metadata from Verizon Wireless, the government’s goal of developing a comprehensive metadata database could not be achieved. Since “the government has consistently maintained that its collection ‘never encompassed all, or even virtually all, call records and does not do so today,’” to establish standing, the plaintiffs needed to offer specific proof that metadata was collected from Verizon Wireless. Id. at 565.
Judge Sentelle’s partial dissent
Judge Sentelle dissented on the ground that Judges Brown and Williams had failed to appreciate the implications of the plaintiffs’ failure to establish standing to seek a preliminary injunction. Since standing must be established for a court to have jurisdiction and “[w]ithout jurisdiction we cannot act,” the only possible disposition of the case was dismissal. Id. at 570.