KLAYMAN v. OBAMA et al
MOTION to Stay Proceedings Against the Government Defendants Pending Appeal of Preliminary Injunction 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)(Gilligan, James)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LARRY KLAYMAN, et al.,
Civil Action No.
BARACK OBAMA, President of the
United States, et al.,
LARRY KLAYMAN, et al.,
Civil Action No.
BARACK OBAMA, President of the
United States, et al.,
MOTION FOR STAY OF PROCEEDINGS AGAINST THE GOVERNMENT
DEFENDANTS PENDING APPEAL OF PRELIMINARY INJUNCTION
The Government Defendants 1 hereby move for a stay of proceedings against them in both
of the above-captioned actions, pending resolution of their appeal to the D.C. Circuit from the
preliminary injunction entered by this Court on December 16, 2013, in Klayman v. Obama, No.
1:13-cv-00851-RJL (Klayman I). A stay would avoid the expenditure of time and resources on
further proceedings in this Court that may be rendered unnecessary by the Court of Appeals’
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).
The Government Defendants are not seeking at this time a stay of Plaintiffs’ claims
against any other parties in either Klayman I or Klayman v. Obama, No. 1:13-cv-00881-RJL
(Klayman II), and in particular are not requesting a stay of proceedings on either: (1) the Motion
To Dismiss Claims Against the Verizon Defendants, or in the Alternative for Summary
Judgment, Submitted by Defendant [DOJ] Pursuant to Section 802 of the Foreign Intelligence
Surveillance Act, 50 U.S.C. § 1885a(a) (Klayman I, ECF No. 52); or (2) the Verizon Defendants’
Motion to Dismiss Plaintiffs’ Second Amended Complaint (Klayman I, ECF No. 56).
For the reasons that follow, the Government Defendants’ request to stay proceedings
against them in Klayman I and Klayman II pending appeal of the preliminary injunction in
Klayman I should be granted. 2
PROCEEDINGS TO DATE
Plaintiffs in these cases seek to invalidate important means by which the NSA, acting
under authority of orders issued by the Foreign Intelligence Surveillance Court (FISC), has
gathered information about communications among known and unknown terrorist actors in order
to thwart future terrorist attacks on the United States and its people. Plaintiffs allege that the
challenged NSA intelligence-gathering activities constitute a single “mass warrantless
surveillance program,” called PRISM, in which the NSA collects both the contents of, and
metadata about, Americans’ telephone and Internet-based communications, and exploits this
information to build “comprehensive profiles” of ordinary Americans revealing intimate details
about their lives and personal associations. Klayman I, Second Amended Compl. (ECF No. 37)
Pursuant to Local Rule 7(m), undersigned counsel conferred by electronic mail with
counsel for Plaintiffs, and was advised that Plaintiffs oppose the Government Defendants’
request for a stay of proceedings against them pending appeal. Counsel for Defendants Verizon
Communications, Inc., and Lowell McAdam (the “Verizon Defendants”) have authorized the
Government Defendants to inform the Court that they consent to the requested stay.
(“Klayman I Compl.”) ¶¶ 2-3; Klayman II, Amended Compl. (ECF No. 30) (“Klayman II
Compl.”) ¶¶ 3-9. Plaintiffs maintain that the NSA’s alleged collection of electronic
communications involving suspected foreign terrorists located abroad, and bulk collection of
telephony and Internet metadata, all conducted with the alleged assistance of the defendant
telecommunications service providers, (1) exceed the Government’s authority conferred by the
Foreign Intelligence Surveillance Act (FISA), see Klayman I Compl. ¶¶ 96-99, (2) violate the
First, Fourth, and Fifth Amendments to the Constitution, see id. ¶¶ 49-69, and (3) constitute
tortious intrusion upon seclusion, intentional infliction of emotional distress, and violations of
the Stored Communications Act, see id. ¶¶ 70-80; Klayman II Compl. ¶¶ 101-15. See also
Klayman II Compl. ¶¶ 69-100, 116-19.
Plaintiffs have indicated in their pleadings (and during argument on their motions for
preliminary injunctions) that they intend to pursue discovery to obtain “full disclosure and a
complete accounting” of what the Government Defendants (and other Defendants in these cases)
“have done [or been] allowed to do” in connection with the challenged NSA intelligence
programs; “identification of any and all ‘targets’ subject to Defendants’ surveillance”; and
production of “all other relevant reports, risk assessments, memoranda, and other documents.”
They also seek court-ordered security clearances for Plaintiffs’ counsel in order to conduct such
discovery. Klayman I Compl. ¶¶ 101-02; Klayman II Compl. ¶¶ 121-22.
On October 29, 2013, Plaintiffs moved in both cases for preliminary injunctions based on
their claims that the NSA’s alleged intelligence-gathering activities exceed the Government’s
statutory authority and violate the First, Fourth, and Fifth Amendments to the Constitution.
Klayman I, ECF No. 13; Klayman II, ECF No. 10. On December 16, 2013, the Court granted
Plaintiffs Klayman and Michael Strange a preliminary injunction, in Klayman I, prohibiting any
continued NSA collection or maintenance of metadata associated with their telephone
communications as part of the NSA’s bulk telephony metadata program. Klayman I, ECF
No. 49. Although the Court held that it lacked jurisdiction to consider the merits of Plaintiffs’
statutory claim under the Administrative Procedure Act (APA), Klayman I, Memorandum
Opinion, ECF No. 48 (“Mem. Op.”) at 23-31, it found that Plaintiffs have standing to bring their
constitutional claims against the telephony metadata program, concluding that the NSA “must
have collected” metadata of their telephone calls because they are customers of Verizon
Wireless, id. at 36-38 (emphasis in original). The Court then concluded that Plaintiffs have
shown a likelihood of success on the merits of their Fourth Amendment claim, and that the
infringement of their Fourth-Amendment rights constitutes irreparable injury. Id. at 42-65. (The
Court did not reach the merits of Plaintiffs’ other constitutional claims. See id. at 5 n.7.) Citing
“the significant national security interests at stake,” and what it described as “the novelty of the
constitutional issues,” the Court sua sponte stayed its injunction pending appeal. Id. at 67.
In light of the Court’s December 16 ruling, the Government Defendants filed a motion to
extend the deadline for their responses to the complaints in Klayman I and II from December 16,
2013, to January 10, 2014. Klayman I, ECF No. 51; Klayman II, ECF No. 43. The Court has not
yet acted on that motion. In the absence of a stay, the Government Defendants anticipate that
they will file a combined motion to dismiss certain claims in both cases on January 10.
Also on December 16, 2013, Defendant DOJ moved to dismiss the Verizon Defendants
on the ground that, under 50 U.S.C. § 1885a, the Verizon Defendants are immune from suit for
allegedly assisting the NSA in the intelligence-gathering activities implicated by Plaintiffs’
claims. Motion To Dismiss Claims Against the Verizon Defendants, or in the Alternative for
Summary Judgment, Submitted by Defendant [DOJ] Pursuant to Section 802 of [FISA], 50
U.S.C. § 1885a(a), Klayman I, ECF No. 52. The Verizon Defendants moved to dismiss the
claims against them as well, on the grounds that: (1) they are immune from suit under section
1885a and other statutes; (2) Plaintiffs’ state-law claims are preempted, and otherwise fail to
state actionable claims for relief; (3) the Verizon Defendants are not proper parties to Plaintiffs’
APA-based statutory claim; (4) Plaintiffs have not established their standing to assert, or
plausibly stated, a claim that the contents of their communications have been unlawfully
disclosed; and (5) the Verizon Defendants are not subject to personal jurisdiction in this judicial
district. See generally The Verizon Defendants’ Motion To Dismiss Plaintiffs’ Second Amended
Complaint, Klayman I, ECF No. 55. Both motions are still pending.
On January 3, 2014, the Government Defendants filed a notice of appeal from the Court’s
Memorandum Opinion and Order granting Plaintiffs Klayman’s and Michael Strange’s request
for a preliminary injunction in Klayman I. ECF No. 64. Pursuant to statute, 28 U.S.C. § 1657,
the D.C. Circuit’s rules provide that the appeal will proceed on an expedited schedule for
briefing and argument. D.C. Cir. Rule 47.2(a),
“The power to stay proceedings is incidental to the power inherent in every court to
control the disposition of the causes on its docket with economy of time and effort for itself, for
counsel, and for litigants.” Air Line Pilots Ass'n v. Miller, 523 U.S. 866, 879 n.6 (1998) (quoting
Landis v. N. Am. Co., 299 U.S. 248, 254–55 (1936)). In particular, “[a] trial court has broad
discretion to stay all proceedings in an action pending the resolution of independent proceedings
elsewhere.” Naegele v. Albers, 940 F. Supp. 2d 1, 9 (D.D.C. 2013) (citing, inter alia, Leyva
Certified Grocers of Cal., Ltd., 593 F.2d 857, 863-64 (9th Cir. 1979) (“[a] trial court may, with
propriety, find it is efficient for its own docket and the fairest course for the parties to enter a stay
of an action before it, pending resolution of independent proceedings which bear upon the
case.”)). See also Hussain v. Lewis, 848 F. Supp. 2d 1, 2 (D.D.C. 2012) (same); Allina Health
Servs. v. Sebelius, 756 F. Supp. 2d 61, 65 (D.D.C. 2010) (same).
A stay of proceedings against the Government Defendants in these cases, pending
resolution of the Government Defendants’ appeal from the Court’s preliminary injunction, is
warranted on two separate (albeit related) grounds. First, staying further proceedings in this
Court until after the D.C. Circuit rules on the Government Defendants’ appeal will avoid
duplicative litigation in this Court of issues now before the D.C. Circuit on that appeal, and allow
this Court to benefit from the Court of Appeals’ guidance on questions of law that could be
dispositive of these cases—including constitutional questions that the Court itself viewed as
novel. Mem. Op. at 67. See Fonville v. Dist. of Columbia, 766 F. Supp. 2d 171, 174 (D.D.C.
2011) (staying police officer’s due-process challenge to his demotion pending resolution of issue
of local law by the D.C. Court of Appeals that would “likely ‘narrow the issues in the pending
cases and assist in the determination of the questions of law involved’”) (quoting Landis, 299
U.S. at 253).
Second, a stay pending resolution by the D.C. Circuit of the appeal from the preliminary
injunction would forestall the expenditure of significant time, effort, and resources necessary to
litigate these cases until the Court of Appeals rules on the legal viability of Plaintiffs’ claims and
it becomes clear which issues, if any, will need to be resolved by further proceedings in this
Court. See Allina Health, 756 F. Supp. 2d at 65 (“[a] district court has broad discretion to stay a
proceeding pending the resolution of proceedings in other courts [that] may affect the scope and
necessity for the litigation”). This is a particularly acute consideration in the cases at bar, which
implicate NSA intelligence programs undertaken for the protection of national security. Further
litigation of Plaintiffs’ challenges to the conduct of these programs could well risk or require
disclosure of highly sensitive information about the intelligence sources and methods involved—
information that the Government determined was not appropriate for declassification when it
publicly disclosed certain facts about these programs. For example, if the litigation proceeds it
will ultimately become necessary to conclusively determine, as a factual matter, whether
Plaintiffs have established their standing to challenge NSA’s alleged interception of the content
of their communications, and collection of metadata about those communications. Further
litigation of this issue could risk or require disclosure of classified national security information,
such as whether Plaintiffs were the targets of or subject to NSA intelligence-gathering activities,
confirmation or denial of the identities of the telecommunications service providers from which
NSA has obtained information about individuals’ communications, and other classified
information about the scope and operational details of the challenged programs. 3
This is the case even so far as the telephony metadata program is concerned. The Court
concluded in its preliminary-injunction opinion that the NSA “must have collected [telephony]
metadata from” Plaintiffs’ provider, Verizon Wireless, based on an inference that NSA’s
collection of telephony metadata is “comprehensive.” Mem. Op. at 38 (emphasis in original).
Although the Government has acknowledged that the program involves the collection and
aggregation of a large volume of data from multiple providers, it has not represented in this
litigation, nor does the record contain any representations by the Government, that the program
captures information about all (or even virtually all) telephone calls to, from, or within the
United States. See, e.g., Government Defendants’ Opposition to Plaintiffs’ Motions for
Preliminary Injunctions, Klayman I, ECF No. 25 (“Gov’t Defs.’ PI Opp.”) at 8 (“[u]nder th[e]
program, the FBI obtains orders from the FISC … directing certain telecommunications service
providers to produce [call-detail records] to the NSA on a daily basis ….”) (emphasis added); id.,
Exh. C (Shea Declaration) ¶ 14 (same) and Exh. D (Holley Declaration) ¶ 6 (same). As the
FISC observed in its August 2013 decision re-authorizing the program, “production of all call
detail records of all persons in the United States has never occurred under this program.” In re
Application of the FBI for an Order Requiring the Production of Tangible Things from
[Redacted], Dkt. No. BR13-109, Amended Mem. Op. at 4 n.5 (F.I.S.C. Aug. 29, 2013) (publicly
released, unclassified version).
The same is true regarding the merits of Plaintiffs’ claims. For example, even if the mere
collection of information about Plaintiffs’ communications constitutes a Fourth Amendment
search, see Mem. Op. at 56, conclusively resolving the reasonableness of that search ultimately
could risk or require disclosure of exceptionally sensitive and classified intelligence information
regarding the nature and scope of the international terrorist threat to the United States, and the
role that the NSA’s intelligence-gathering activities have played in meeting that threat. See id. at
57; Gov’t Defs.’ PI Opp. at 50-53.
As noted above, Plaintiffs have made clear their intentions to seek discovery of this kind
of still-classified information, concerning targets and subjects, participating providers, and other
operational details of the challenged NSA intelligence programs. Supra at 3. Disclosure of such
information about the sources and methods of intelligence-gathering on which these programs
depend could cause exceptionally grave damage to national security. The Government would
oppose efforts by Plaintiffs here to compel disclosure of such extraordinarily sensitive
information. 4 In addition, the Government Defendants will oppose any attempt by Plaintiffs to
compel the Government to provide Plaintiffs or their counsel with security clearances in order to
obtain access to any classified information at issue in these cases, because the authority to
determine who may have access to classified information “is committed by law to … the
Executive Branch.” Dep’t of the Navy v. Egan, 484 U.S. 518, 527-28 (1988).
Contentious litigation over the availability of classified information to litigate these cases
against the Government Defendants, and the significant risks to national security if such
Indeed, the Director of National Intelligence has recently asserted the state secrets
privilege over this very sort of information, in similar, earlier-filed litigation concerning alleged
NSA collection of the contents of and records relating to Americans’ telecommunications.
Public Declaration of James R. Clapper, Director of National Intelligence, ¶¶ 10, 17-19, Jewel v.
NSA, No. 08-cv-4373-JSW (N.D. Cal.), ECF No. 168 (filed December 20, 2013).
information were disclosed, could and should be avoided by allowing the Court of Appeals to
rule first on the legal viability of Plaintiffs’ claims against the Government Defendants.
Plaintiffs’ claims against the Government Defendants should therefore be held in abeyance until
the D.C. Circuit has issued a decision on the Government’s pending appeal from the Court’s
preliminary injunction. See Naegele, 940 F. Supp. 2d at 9; Hussain, 848 F. Supp. 2d at 2; Allina
Health, 756 F. Supp. 2d at 65.
The Government Defendants reiterate that, at this time, they are seeking a stay only of the
Plaintiffs’ claims against the Government Defendants. In particular, the Government Defendants
are not requesting a stay of DOJ’s motion to dismiss Plaintiffs’ claims against the Verizon
Defendants, or of the Verizon Defendants’ own motion to dismiss. Those motions do not turn on
the constitutional questions presented by the Government Defendants’ appeal to the D.C. Circuit.
See supra at 5. Therefore, little would be gained in terms of judicial economy or efficiency by
delaying adjudication of those motions pending the Court of Appeals’ ruling. Moreover, both
motions turn principally on a straightforward question of immunity from suit under 50 U.S.C.
§ 1885a, and should be resolved at the earliest opportunity to ensure that the Verizon Defendants
receive the benefits of the statutory immunity.
For the reasons stated above, the Government Defendants’ request to stay Plaintiffs’
claims against them in Klayman I and Klayman II pending resolution of the appeal from this
Court’s preliminary injunction in Klayman I should be granted.
Dated: January 8, 2014
STUART F. DELERY
Assistant Attorney General
JOSEPH H. HUNT
Director, Federal Programs Branch
ANTHONY J. COPPOLINO
Deputy Branch Director
/s/ James J. Gilligan
JAMES J. GILLIGAN
Special Litigation Counsel
Senior Trial Counsel
U.S Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., N.W., Room 6102
Washington, D.C. 20001
Phone: (202) 514-3358
Fax: (202) 616-8470
Counsel for the Government Defendants
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