KLAYMAN v. OBAMA et al

Filing 56

ENTERED IN ERROR.....MOTION for Extension of Time by KEITH B. ALEXANDER, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II, U.S. DEPARTMENT OF JUSTICE, DEPARTMENT OF JUSTICE OF THE UNITED STATES (Attachments: # 1 Text of Proposed Order)(rdj) Modified on 12/17/2013 (rdj).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
LARRY KLAYMAN, et al.,
)
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Plaintiffs,
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Civil Action No.
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1:13-cv-00851-RJL
v.
)
)
BARACK OBAMA, President of the
)
United States, et al.,
)
)
Defendants. )
____________________________________)
)
LARRY KLAYMAN, et al.,
)
)
Plaintiffs,
)
Civil Action No.
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1:13-cv-00881-RJL
)
v.
)
)
BARACK OBAMA, President of the
)
United States, et al.,
)
Defendants. )
____________________________________)
GOVERNMENT DEFENDANTS’ MOTION TO EXTEND THE TIME TO
RESPOND TO PLAINTIFFS’ AMENDED COMPLAINTS IN LIGHT OF
MEMORANDUM OPINION ISSUED TODAY
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 (collectively, the “Government Defendants”), hereby move,
pursuant to Federal Rule of Civil Procedure 6(b), to extend the time to respond to Plaintiffs’
amended complaints in the above-captioned cases.
1.

Today is the due date for Government Defendants’ response to the amended

complaints in both Klayman v. Obama (Civ. Action No. 13-851) (“Klayman I”) and Klayman v.

Obama (Civ. Action No. 13-881) (“Klayman II”). Government Defendants had prepared a
motion to dismiss for filing today, largely incorporating the merits arguments made in
Government Defendants’ Opposition to Plaintiffs’ Motions for Preliminary Injunctions (ECF No.
25 in Klayman I and ECF No. 21 in Klayman II). At 1:07 p.m. this afternoon, however, the
Court issued a 68-page Memorandum Opinion granting in part Plaintiffs’ Motions for
Preliminary Injunction. The opinion concludes that, with respect to Klayman I, Plaintiffs have
standing to challenge the constitutionality of the Government’s telephony metadata program, that
Plaintiffs demonstrated a substantial likelihood of success on the merits of their Fourth
Amendment claim, and that Plaintiffs will suffer irreparable harm. Thus, the Court granted in
part the motion in Klayman I, with respect to plaintiffs Larry Klayman and Charles Strange and
as against Government Defendants, but stayed the order pending appeal.
2.

Government Defendants respectfully request an extension until January 10, 2014,

of the deadline for responding to the amended complaints in these cases, to allow them sufficient
time to determine the impact of today’s Memorandum Opinion on the motion to dismiss that
Government Defendants were prepared to file today, and more generally how the Government
will seek to proceed in light of today’s ruling. For example, Government Defendants intended to
move to dismiss Plaintiffs’ Fourth Amendment claim for failure to state a claim upon which
relief can be granted, but the Court ruled that that claim has a likelihood of success on the merits,
and therefore the Government will need to assess the Court’s ruling to determine how to proceed
in light of that ruling.
3.

Government Defendants seek until January 10 because of approaching deadlines

in another pair of cases in the Northern District of California challenging the NSA’s intelligencegathering activities, which cases are handled by the same litigation team responsible for
defending Government Defendants in the instant cases. On December 20, 2013, the Government
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must report to the Court in Jewel v. National Security Agency (08-cv-4373-JSW) (N.D. Cal.) and
Shubert v. Obama (07-cv-0693-JSW) (N.D. Cal.) on the impact of recent disclosures concerning
the NSA’s intelligence-gathering activities on the Government’s 2012 state secrets privilege
assertion in those cases. The Government is also required to submit by December 20 redacted,
declassified versions of the multiple prior state secrets privilege declarations filed in those cases.
These are extraordinarily sensitive, complex filings requiring a great deal of effort and
coordination by different government agencies. The litigation team handling those cases and the
instant cases must devote its full attention to the Jewel and Shubert matters in order to meet the
court-imposed deadlines in those cases. In addition, December 25, 2013, and January 1, 2014,
are federal holidays.
4.

Counsel for Plaintiffs in Klayman I and II has advised counsel for Government

Defendants that Plaintiffs object to this motion. Counsel for defendant Verizon Communications
and Lowell McAdams have advised that they consent to this motion.

Dated: December 16, 2013

Respectfully submitted,
STUART F. DELERY
Assistant Attorney General
JOSEPH H. HUNT
Director, Federal Programs Branch
ANTHONY J. COPPOLINO
Deputy Branch Director

/s/ Marcia Berman
JAMES J. GILLIGAN
Special Litigation Counsel
MARCIA BERMAN
Senior Trial Counsel
BRYAN DEARINGER
RODNEY PATTON
Trial Attorneys
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U.S Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., N.W., Room 6102
Washington, D.C. 20001
Phone: [phone]
Fax: [phone]
Attorneys for Government Defendants

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