KLAYMAN v. OBAMA et al
Filing
123
RESPONSE re 122 MOTION to Intervene by Applicant Frederick Banks 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)(Patton, Rodney)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________________________________
)
LARRY KLAYMAN, et al.,
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)
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Plaintiffs,
)
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v.
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BARACK OBAMA, President of the
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United States, et al.,
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)
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Defendants.
_______________________________________)
Civil Action No.
1:13-cv-00851-RJL
GOVERNMENT DEFENDANTS’ RESPONSE TO NOTICE OF INTERVENTION AS
OF RIGHT FILED BY FREDERICK BANKS
The Government Defendants1 oppose the intervention of applicant Frederick Banks
because he cannot satisfy the requirements to intervene as of right and his motion should be
denied as frivolous. Full briefing on his motion2 would be premature, however, while this case is
stayed until the Court of Appeals resolves the appeal of this Court’s grant of a preliminary
injunction. If the Court does not immediately deny the motion as frivolous, then it should hold
briefing and consideration of the motion in abeyance until after the Court of Appeals disposes of
the pending appeal, and the stay of this action is lifted.
1
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 (DOJ). Pursuant to Federal Rule of Civil Procedure
25(d), Admiral Michael S. Rogers is automatically substituted as a party to this action in place of
former NSA Director General Keith Alexander.
2
Although Mr. Banks styles his filing as a “Notice,” he also refers to it in the body of his
filing as a “motion.” The Government Defendants treat his filing herein as a motion.
1
More than one year after this suit was filed, applicant Banks, apparently an inmate at the
Northeastern Ohio Correctional Center, seeks to intervene as a matter of right in this action. See
Notice of Intervention as of Right (“Mot.”), ECF No. 122. The applicant attached to his motion
a proposed complaint and writ of mandamus. In the putative complaint, he (and two other
individuals) allege that various individuals and organizations, including Booz Allen Hamilton,
the Director of the Privacy and Civil Liberties Oversight Board, the Director of the Central
Intelligence Agency, and Senator Saxby Chambliss—none of whom are defendants in this
action—participated in a “civil conspiracy” to collect intelligence on them in order to
“maliciously injure” them, “damage their reputations and harass them for various reasons,
including their litigation . . . and whistleblowing activities against the federal government.”
Compl. ¶¶ 1, 3. The applicant alleges that the intelligence was obtained through “[u]pstream”
and “PRISM” collections as well as through “bio-electric sensors” and “sub aural
communications.” Id. ¶ 2. A variety of causes of action are asserted, including violations of
three constitutional provisions, various state-law torts, as well as the “Northwest Ordinance
utmost good faith clause, . . . the Sioux Treaty of Fort Laramie 1868, . . . and the Sioux treaty
badmen provision.” Id. ¶ 6. The applicant also “move[s] the court for an order referring this
matter to the House and Senate Intelligence Committees upon receipt.” Id. ¶ 8.
The applicant seeks to intervene as a matter of right, which is governed by Rule 24(a) of
the Federal Rules of Civil Procedure. Rule 24(a) provides, in pertinent part that, “[o]n timely
motion, the court must permit anyone to intervene who . . . (2) claims an interest relating to the
property or transaction that is the subject of the action, and is so situated that disposing of the
action may as a practical matter impair or impede the movant’s ability to protect its interest,
unless existing parties adequately represent that interest.” Fed. R. Civ. P. 24(a). Drawing from
2
the language of the rule, a putative intervenor must satisfy four distinct requirements: (1) the
application must be timely, (2) the applicant must have a “legally protected interest in the
action,” (3) the action must threaten to impair that interest, and (4) no party to the action can be
an adequate representative for the applicant’s interests. See Karsner v. Lothian, 532 F.3d 876,
885 (D.C. Cir. 2008); see also, e.g., Fund for Animals, Inc. v. Norton, 322 F.3d 728, 731 (D.C.
Cir. 2003). Additionally, the applicant must also demonstrate that he “has standing under Article
III of the Constitution.” Fund for Animals, 322 F.3d at 732.
The applicant’s motion, which does not attempt to show that he satisfies any of these
requirements, is without merit for many reasons. Most obvious among these, the Complaint he
attaches to his motion does not identify a legally protected interest in this action. The applicant’s
putative complaint—though wide-ranging in factual allegations and relief sought—has nothing
to do with the National Security Agency’s intelligence activities at issue here. This case, civil
action number 13-851, “concerns only the [bulk] collection and analysis of phone record data,”
Klayman v. Obama, 957 F. Supp. 2d 1, 8 n.6 (D.D.C. 2013) (emphasis added), which is collected
under the “business records” provision of the Foreign Intelligence Surveillance Act, 50 U.S.C.
§ 1861, enacted by Section 215 of the USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 272
(2001), whereas the applicant’s proposed complaint does not challenge the bulk collection of
telephony metadata. Put simply, the applicant’s putative complaint challenges a broad array of
alleged surveillance and other activities that are not at issue here and does not challenge the one
program that is at issue. Thus the applicant can have no legally protected interest in this action,
much less one that could be impaired by its resolution, and so his application should be denied as
frivolous.
3
Alternatively, the Court should defer full briefing and consideration of this motion
because it is premature. On July 30, 2014, by Minute Entry, this Court granted the Government
Defendants’ motion for a stay of proceedings, ordering that “all proceedings against the
Government Defendants are hereby STAYED pending . . . appeal to the United States Court of
Appeals for the District of Columbia Circuit from this Court’s December 16, 2013, preliminary
injunction in Case No. 13-cv-851.” Accordingly, if the applicant’s motion is not immediately
denied as frivolous, then briefing and resolution of the motion should be held in abeyance until
such time as the Court lifts the stay it imposed on these proceedings.
For the reasons set forth above, this Court should either deny the applicant’s motion as
frivolous or hold full briefing and consideration in abeyance.
4
Dated: August 22, 2014
Respectfully submitted,
STUART F. DELERY
Assistant Attorney General
JOSEPH H. HUNT
Director, Federal Programs Branch
ANTHONY J. COPPOLINO
Deputy Branch Director
JAMES J. GILLIGAN
Special Litigation Counsel
MARCIA BERMAN
Senior Trial Counsel
/s/ Rodney Patton
BRYAN DEARINGER
RODNEY PATTON
JULIA BERMAN
Trial Attorneys
U.S Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., N.W., Room 7320
Washington, D.C. 20001
Phone: (202) 305-7919
Fax: (202) 305-2685
Attorneys for Government Defendants
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CERTIFICATE OF SERVICE
I hereby certify that on this 22nd day of August, 2014, I did cause a true and correct copy
of the Government Defendants’ Response to Notice of Intervention as of Right Filed by
Applicant Frederick Banks, and a Proposed Order, to be electronically filed using this Court’s
CM/ECF system for the United States District Court for the District of Columbia and served by
U.S. mail on the following person:
Frederick Banks
# 05711068
Northeastern Ohio Correctional Center
2240 Hubbard Road
Youngstown, OH 44505
/s/ Rodney Patton
RODNEY PATTON
Trial Attorney
U.S. Department of Justice
Civil Division, Federal Programs Branch
6
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