Obama v. Klayman

• Decision Date: 28 August 2015
• Docket Number: 14–5017.,14–5016,Nos. 14–5004,14–5005,s. 14–5004
• Citation: 800 F.3d 559
• Parties: Barack Hussein OBAMA, et al., Appellants v. Larry Elliott KLAYMAN, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

800 F.3d 559

Barack Hussein OBAMA, et al., Appellants

v.Larry Elliott KLAYMAN, et al., Appellees.

Nos. 14–5004

14–5005

14–5016

14–5017.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 4, 2014.

Decided Aug. 28, 2015.

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.

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

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.

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 collecting plaintiffs' call records, but stayed its order pending appeal. Klayman v. Obama, 957 F.Supp.2d 1, 44 (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 (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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In other words, plaintiffs here must show their own metadata was collected by the government. See, e.g., Clapper v. Amnesty International, ––– U.S. ––––, 133 S.Ct. 1138, 1148, 185 L.Ed.2d 264 (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 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...