KLAYMAN v. OBAMA et al

Filing 100

Memorandum in opposition to re 95 MOTION for Joinder (Motion to Intervene) filed by KEITH B. ALEXANDER, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II, U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order)(Dearinger, Bryan)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________________________________
)
)
LARRY KLAYMAN, et al.,
)
)
Civil Action No.
Plaintiffs,
)
1:13-cv-00851-RJL
v.
)
)
)
BARACK OBAMA, President of the
)
United States, et al.,
)
Defendants.
)
_______________________________________)
)
LARRY KLAYMAN, et al.,
)
)
)
Civil Action No.
Plaintiffs,
)
1:13-cv-00881-RJL
)
v.
)
)
BARACK OBAMA, President of the
)
United States, et al.,
)
)
Defendants.
_______________________________________)
GOVERNMENT DEFENDANTS’ OPPOSITION TO MOTION
TO INTERVENE FILED BY TIMOTHY DEMITRI BROWN
The Government Defendants1 hereby respond to Timothy Demitri Brown’s “Motion to
Join, Request for Leave” (13-851, ECF No. 95; 13-881, ECF. No. 69 (“Brown Mot.”)), which
the Government Defendants construe as a motion to intervene pursuant to Federal Rule of Civil
Procedure 24. Mr. Brown filed this motion without making any showing as to why he is entitled
to intervene under Rule 24(a) or (b). The Government Defendants therefore do not believe that
the motion merits serious consideration by this Court and oppose the relief sought.
1

The “Government Defendants” are defendants Barack Obama, President of the United
States, Eric Holder, Attorney General of the United States, and General Keith B. Alexander,
Director of the National Security Agency (NSA), insofar as they are sued in their official
capacities, together with defendants NSA and the United States Department of Justice.

Mr. Brown’s motion consists of the allegation that he “has been personally victimized by
the unlawful surveillance of the U.S. Government,” and attaches documents that appear to
reference a 1998 court-ordered pen register—activity that predates the alleged programs
challenged in this matter. See Brown Mot. at 3-4.
Rule 24(a) and (b) “both require that a motion to intervene be timely filed, and the Court
considers ‘time elapsed since the inception of the suit, the purpose for which intervention is
sought, the need for intervention as a means of preserving the applicant’s rights, and the
probability of prejudice to those already parties in the case.’” Kifafi v. Hilton Hotel Ret. Plan,
2004 WL 3619156, at *6 (D.D.C. Sept. 27, 2004) (quoting Smoke v. Norton, 252 F.3d 468, 471
(D.C. Cir. 2001)).2 Permissive intervention under Rule 24(b)(1)(A)—the more likely putative
basis for the instant motion—may apply to movants who have “a claim or defense that shares
with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(A).
The aforementioned factors weigh heavily against permitting Mr. Brown to intervene in
this case. He waited nine months to file his motion, does not articulate a single reason why
intervention is appropriate, and alleges harm that occurred over fifteen years ago, unconnected to
any activity being challenged in the instant cases. Relatedly, because his one-sentence allegation
does not share a “common question of law or fact” with the claims raised in these actions and, in
any event, is not supported by any independent jurisdictional basis, Mr. Brown is not eligible for
permissive intervention under Rule 24(b)(1)(A). See EEOC v. Nat’l Children’s Ctr., Inc., 146
F.3d 1042, 1046 (D.C. Cir. 1998). Finally, Mr. Brown’s motion is not accompanied by a
pleading, as required by Rule 24(c). For all these reasons, his motion should be denied.

2

Mr. Brown has not identified any statute that provides him an unconditional or
conditional right to intervene in this action, see Fed. R. Civ. P. 24(a)(1), (b)(1), and counsel for
the Government Defendants are aware of none.
2

Dated: March 24, 2014

Respectfully submitted,
STUART F. DELERY
Assistant Attorney General
JOSEPH H. HUNT
Director, Federal Programs Branch
ANTHONY J. COPPOLINO
Deputy Branch Director
/s/ Bryan Dearinger
JAMES J. GILLIGAN
Special Litigation Counsel
MARCIA BERMAN
Senior Trial Counsel
BRYAN DEARINGER
Trial Attorney
RODNEY PATTON
Trial Attorney
U.S Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., N.W., Room 7334
Washington, D.C. 20001
Phone: [phone]
Fax: [phone]
[e-mail]
Counsel for the Government Defendants

3

CERTIFICATE OF SERVICE
I hereby certify that on this 24th day of March, 2014, I did cause true and correct copies
of the foregoing instrument, Government Defendants’ Opposition to Motion to Intervene Filed
by Timothy Demitri Brown to be electronically filed using the CM/ECF system for the United
States District Court for the District of Columbia and served by U.S. mail on the following
person:

TIMOTHY DEMITRI BROWN
R10979-035
FLORENCE ADMAX
U.S. PENITENTIARY
Inmate Mail/Parcels
PO BOX 8500
FLORENCE, CO 81226

/s/ Bryan Dearinger
BRYAN DEARINGER
Trial Attorney
U.S Department of Justice
Civil Division, Federal Programs Branch