Larry Klayman v. Barack Obama
419 U.S. App. D.C. 199
| D.C. Cir. | 2015Background
- After 9/11 Congress enacted Section 215 of the PATRIOT Act allowing FISC orders for "tangible things"; the government used it (since 2006) to collect bulk telephony metadata (numbers, times, durations) from telecoms.
- The program consolidated metadata in a government database; NSA queries required FISC-approved "reasonable articulable suspicion" of an association with terrorism and retrieved records within two "hops."
- Plaintiffs (Verizon Wireless subscribers) sued alleging Fourth Amendment unlawful search/seizure of their phone records; the district court granted a preliminary injunction barring collection but stayed it pending appeal.
- On appeal this court vacated the preliminary injunction and remanded; judges Brown and Williams concurred in vacatur but emphasized different points about standing and discovery; Judge Sentelle would dismiss for lack of jurisdiction.
- Congress’s USA Freedom Act was enacted after a statutory lapse, with transitional language that permitted continuation of prior Section 215 authority until the Act’s effective date, so the collection program effectively resumed—court found the dispute not moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing: whether plaintiffs suffered concrete injury because their metadata was collected | NSA collected bulk metadata from major carriers, so Verizon Wireless subscribers’ records likely included | Government denies collection was necessarily comprehensive; plaintiffs lack proof their records were collected; secrecy precludes discovery | Plaintiffs have barely plausible standing (Brown) but not a substantial likelihood of standing; remand for limited discovery only (Williams); Sentelle would dismiss for lack of jurisdiction |
| Likelihood of success on merits for preliminary injunction | Bulk collection is an unreasonable Fourth Amendment search/seizure | Plaintiffs failed to show a substantial likelihood of success because they cannot prove their own records were collected | Preliminary injunction vacated for failure to show substantial likelihood of success |
| Mootness / ongoing injury | Lapse in statute was temporary; program resumed, so injury could recur | Transitional provisions and FISC actions show collection authority continued pending USA Freedom Act effective date | Case not moot; parties remain in same positions as before statutory lapse |
| Discovery of classified facts | Plaintiffs seek limited discovery to prove collection from their carrier | Government resists disclosure on national-security and secrecy grounds; Clapper counsels against compelled classified disclosures for standing | Court remands to district court to consider whether limited discovery on jurisdictional facts is appropriate (Brown & Williams); Sentelle would not remand but dismiss |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (requirements for Article III standing: concrete and particularized injury)
- Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) (speculative chains of possibility insufficient for standing; limits on in camera review of classified targeting information)
- Friends of the Earth, Inc. v. Laidlaw Envt’l Servs., 528 U.S. 167 (2000) (injury in fact must be actual or imminent)
- Munaf v. Geren, 553 U.S. 674 (2008) (preliminary-injunction standard requires likelihood of success on the merits)
- Sottera, Inc. v. Food & Drug Admin., 627 F.3d 891 (D.C. Cir. 2010) (standard for preliminary injunction in D.C. Circuit)
- ACLU v. Clapper, 785 F.3d 787 (2d Cir. 2015) (recognizing government orders showing Verizon Business subscribers’ records were collected)