KLAYMAN v. OBAMA et al

Filing 88

Memorandum in opposition to re 85 MOTION For Entry Of Default And To Strike Government Defendants Answer To Plaintiffs Third Amended Complaint re 83 Answer to Amended Complaint, filed by KEITH B. ALEXANDER, ERIC H. HOLDER, JR, BARACK HUSSEIN OBAMA, II, ROGER VINSON. (Attachments: # 1 Exhibit Transcript of proceedings)(Whitman, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
LARRY KLAYMAN, et al.,
)
)
Plaintiffs,
)
)
v.
)
Civil Action No. 1:13-cv-851-RJL
)
BARACK OBAMA, et al.,
)
)
Defendants.
)
____________________________________)
MEMORANDUM OF INDIVIDUAL FEDERAL DEFENDANTS IN
OPPOSITION TO PLAINTIFFS’ “MOTION FOR ENTRY OF DEFAULT”
The plaintiffs in this case have challenged the constitutionality of the United States’ bulk
collection of telephony metadata. Among others, they have named as defendants President of the
United States Barack Obama, Attorney General Eric Holder, National Security Agency (NSA)
Director Keith Alexander, and Senior U.S. District Judge Roger Vinson. Besides suing these
defendants in their official capacity (along with various government agencies) for injunctive
relief, the plaintiffs also seek to hold these four defendants individually liable for money
damages, pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971). 1 In the nearly nine months since they first filed suit, however, the plaintiffs

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Insofar as they are sued in their individual capacity, President Obama, Attorney General
Holder, NSA Director Alexander, and Judge Vinson are collectively referred to as the
“individual federal defendants.” Insofar as they are sued in their official capacity, these
defendants, along with the federal agency defendants, are collectively referred to as the
“Government defendants.” In conjunction with this motion, the undersigned is appearing on
behalf of the individual federal defendants, but for the sole and limited purpose of opposing the
plaintiffs’ motion for entry of default. This appearance is neither a waiver of service nor a
concession that the plaintiffs have properly effected personal service of process on the individual
federal defendants. These defendants therefore reserve their right to file a motion to dismiss
under Rule 12, Rule 56, or any other applicable rule, and to raise any and all available personal
defenses, if and when they are served and properly before the Court. The Government

have yet to serve the individual federal defendants personally, as required by the Federal Rules
of Civil Procedure. See Fed. R. Civ. P. 4(i)(3). Their recently-filed “Motion for Entry of
Default,” in which the plaintiffs seek a default judgment against the individual federal
defendants, ECF No. 85, is therefore baseless and should be denied.
BACKGROUND
The plaintiffs have suggested that they served the individual federal defendants in their
official and personal capacities in September 2013, and that, “when the Obama Justice
Department entered its notice of appearance, they made no distinction about service in both
capacities and subsequent pleadings also bear this out.” Id. at 2. The record, however, plainly
and repeatedly belies these statements.
The plaintiffs originally filed this action on June 6, 2013. ECF No. 1. As they do in their
currently-operative third amended complaint, the plaintiffs in their original complaint sued
(among others) the four individual federal defendants in both “their personal and official
capacities, for violating Plaintiff’s [sic] constitutional rights.” Compl. at 2. Invoking Bivens,
they requested money damages from the personal assets of the individual federal defendants.
See id. ¶¶ 30, 36, 44. The plaintiffs also sued the NSA and the Department of Justice (DOJ). Id.
¶¶ 10, 11. On June 12, 2013, the undersigned entered an appearance in this case on behalf of the
NSA and DOJ—and only the NSA and DOJ. ECF No. 5. That notice of appearance included all
of the undersigned’s contact information. See id. On October 4, 2013, exactly 120 days after
filing suit, the plaintiffs served the U.S. Attorney’s Office for the District of Columbia, as Rule 4
requires for serving the United States or one of its agencies. See Fed. R. Civ. P. 4(i)(1)(A); ECF
No. 10 at 2 n.1.
defendants will be filing their own, separate response to that portion of the plaintiffs’ motion
seeking to strike the Government defendants’ answer to the plaintiffs’ third amended complaint.
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The Court held its first status conference in this case on October 31, 2013. Exh. 1,
Klayman v. Obama, No. 13-cv-851-RJL, Tr. of Status Conference (Oct. 31, 2013). At that
conference, the undersigned introduced himself as an attorney from the Department of Justice
and stated: “I represent the individual Federal Defendants who have not been served, but I am
still appearing today.” Id. at 3:20-21. A different attorney with the Department of Justice
introduced himself as “representing the Government Defendants as specified in our papers.” Id.
at 3:9-11. Although plaintiffs’ counsel did not attend the October 31 hearing, the Court ordered
that a copy of the transcript from that hearing be sent to him. See id. at 12:20-22; Klayman v.
Obama, No. 13-cv-851-RJL, Minute Entry (Oct. 31, 2013).
The Government Defendants filed their partial motion to dismiss in this case on January
10, 2014. ECF No. 68. The brief in support of that motion stated explicitly:
This motion does not address the Plaintiffs’ constitutional tort claims against the
individual federal defendants in their personal capacities. Those defendants have
not yet been served with process and so are not properly before the Court. . . .
Indeed, the Court may dismiss the individual federal defendants on the alternative
ground that it has now been approximately 210 days since the Plaintiffs filed
these actions, but they have yet to serve the individual federal defendants, see
Fed. R. Civ. P. 4(i)(3), and have no good cause for their failure to do so, see id.
4(m).
Id. at 13 n.8 (emphasis added). The first page of that motion also notes that it was brought on
behalf of “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.” Id. at 1 n.1 (emphasis added). Indeed, the first page of every
paper that the Government defendants have filed in this case—including notices of appearance—
has clarified that it pertains only to the official capacity claims. See ECF Nos. 10, 16, 24, 25, 29,
35, 43, 47, 50, 51, 56, 64, 66, 78, 82, 83.
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Despite these express representations, not once in the 259 days between the filing of their
original complaint and the filing of their Motion for Entry of Default did the plaintiffs inform the
Court, the undersigned, or counsel for the Government defendants that they believed they had in
fact personally served the individual federal defendants. In their default judgment motion,
however, the plaintiffs now argue, for the first time, that they served the individual federal
defendants at the end of September 2013. ECF No. 85 Exh. A. But as explained below, the
plaintiffs in fact have not effected personal service on the individual federal defendants as
required by applicable law, whether in September 2013 or at any other time.
ANALYSIS
It is a fundamental and long-established precept of due process that, “[b]efore a federal
court may exercise personal jurisdiction over a defendant, the procedural requirement of service
of summons must be satisfied.” Omni Capital Int’l v. Rudolf Wolff & Co., 484 U.S. 97,104
(1987); see Mississippi Publ’g Corp. v. Murphree, 326 U.S. 438, 444-45 (1946) (“[S]ervice of
summons is the procedure by which a court having venue and jurisdiction of the subject matter
of the suit asserts jurisdiction over the person of the party served.”); Mann v. Castiel, 681 F.3d
368, 372 (D.C. Cir. 2012) (“Service of process, under longstanding tradition in our system of
justice, is fundamental to any procedural imposition on a named defendant.”) (internal quotations
omitted). A judgment is therefore “void where the requirements for effective service have not
been satisfied.” Combs v. Nick Garin Trucking, 825 F.2d 437, 442 & n.42 (D.C. Cir. 1987).
These principles apply equally when the defendant is a federal employee sued in an
individual capacity under Bivens. See Simpkins v. District of Columbia Gov’t, 108 F.3d 366, 369
(D.C. Cir. 1997) (holding that defendants in Bivens action must be served as individuals pursuant
to Rule 4); Epps v. U.S. Attorney Gen., 575 F. Supp. 2d 232, 242 n.14 (D.D.C. 2008) (holding

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that, “[i]f a plaintiff wants to pursue an action against a federal employee in his or her individual
capacity, that individual must be served with process in accordance with Rule 4(e) of the Federal
Rules of Civil Procedure,” and that “the Court is without jurisdiction to render a personal
judgment against an individually-sued defendant until s/he has been properly served in
accordance with the applicable federal or state statutory requirements”). Indeed, Congress
amended Rule 4 in 2000 to make it “explicit” that an employee or officer of the United States
who is sued in an individual capacity for actions related to his or her federal employment “must
be served as an individual defendant.” Fed. R. Civ. P. 4, Advisory Committee’s Notes (2000
Amendment).
Serving a federal employee “as an individual defendant” requires compliance with Rule
4(e). See Fed. R. Civ. P. 4(i); Epps, 575 F. Supp. 2d at 242 n.14. That provision permits service
on an individual by (1) following the service rules of the forum where the suit was filed or where
service is made, or (2) delivering a copy of the summons and complaint to the defendant
personally or to an authorized agent, or leaving a copy of the summons and complaint at the
defendant’s usual place of abode with someone of suitable age and discretion who resides there.
Fed. R. Civ. P. 4(e).
The Civil Rules of the D.C. Superior Court for serving an employee of the United States
in an individual capacity mirror those of Federal Rule of Civil Procedure 4(e)(2), but also permit
service on an individual “by mailing a copy of the summons, complaint and initial order to the
person to be served by registered or certified mail, return receipt requested.” D.C. Super. Ct.
Civ. R. 4(i)(2)(B), 4(c)(3). Service by registered or certified mail, however, “must be made on
the individual to be served” or an agent specifically authorized to accept service of process for
that individual. Wilson-Greene v. Dep’t of Youth Rehab. Servs., No. 06-cv-2262, 2007 WL

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2007557, *2 (D.D.C. July 9, 2007) (Leon, J.); see Cruz-Packer v. District of Columbia, 539 F.
Supp. 2d 181, 186-87 (D.D.C. 2008).
The rules for serving an individual in Maryland (where the headquarters of the NSA are
located) are similar to those of the District of Columbia, with the additional limitation that
service by certified mail in Maryland must specifically request “Restricted Delivery—show to
whom, date, address of delivery.” Md. Rule 2-121(a). Like D.C., Maryland requires that such
restricted delivery service be made on the individual defendant or an authorized agent. See Little
v. E. Dist. Police Station, No. WDQ-13-1514, 2014 WL 271628, *3 (D. Md. Jan. 22, 2014); Md.
Rule 2-124(b) (“Service is made upon an individual by serving the individual or an agent
authorized by appointment or by law to receive service of process for the individual.”).
In their Motion for Entry of Default, the plaintiffs do not indicate that they served
President Obama, Attorney General Holder, NSA Director Alexander, or Judge Vinson by
delivering a copy of the summons and complaint to those individuals “personally” or to an agent
“authorized by appointment or by law to receive service of process” for those individuals when
they are sued in their personal capacity, or by leaving a copy of the summons and complaint at
each individual’s usual place of abode with someone of suitable age and discretion who resides
there. Fed. R. Civ. P. 4(e)(2); see ECF No. 85. Instead, they apparently sent a copy of the
summons and complaint by certified mail, with a return receipt requested, in September 2013 to
each of these defendants at their respective places of employment—the White House in
Washington, D.C., for President Obama (which of course also doubles as the President’s current
residence), the Department of Justice in Washington, D.C., for Attorney General Holder, the
NSA in Fort Meade, Maryland, for NSA Director Alexander, and the Foreign Intelligence
Surveillance Court at the Department of Justice’s main address in Washington, D.C., for Judge

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Vinson. See ECF No. 85 Exh. A. This, however, is insufficient under both D.C. and Maryland
law to effect personal service of process on these defendants.
For starters, and by their own admission, the plaintiffs did not receive a return receipt of
any kind as to Judge Vinson. See ECF No. 85 Exh. 1, Aff. of Naveed Mahboobian (Feb. 20,
2014) ¶ 3. Proof of service of process is therefore lacking with respect to Judge Vinson for that
reason alone.
But service is lacking as to all of the individual federal defendants for the more
fundamental reason that the plaintiffs have no evidence that their certified mailings were
delivered to and accepted by the individual federal defendants themselves or an agent authorized
by appointment to accept service for those defendants when they are sued in their personal
capacity. In fact, the plaintiffs’ own evidence establishes just the opposite, and shows that their
attempts at service in September 2013 by certified mail were inadequate for purposes of serving
the individual federal defendants personally under D.C. and Maryland law. Their return receipt
for President Obama is generically stamped as received by “The White House.” ECF No. 85
Exh. A. Similarly, their return receipt for NSA Director Alexander is generically stamped as
received by the NSA’s “Mail Center” and, what’s more, this particular certified mailing was
addressed to the NSA headquarters in Maryland but was not designated for “restricted delivery.”
Id. While their return receipt for Attorney General Holder is signed by an individual, id., the
signature is not that of the Attorney General himself, and the plaintiffs offer no evidence that the
Attorney General authorized that person to accept service of process for him. And again, they
have no return receipt whatsoever from Judge Vinson, much less one that shows that he or an
authorized agent signed for the certified mailing.

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The case law under D.C. and Maryland law is clear that service by certified mail
delivered to and signed for by somebody other than the defendant or the defendant’s authorized
agent—particularly when it is addressed to the individual defendant’s place of employment—is
ineffective. See Wilson-Green, 2007 WL 2007557, at *2 (Leon, J.) (finding service on
individual defendants by certified mail inadequate under D.C. law where it was sent to the
defendants’ business address and the plaintiff “offered no evidence” that the third parties who
signed the return receipts were authorized to accept service of process for the defendants); CruzPacker, 539 F. Supp. 2d at 187 (finding service on individual defendants by certified mail
inadequate under D.C. law where plaintiff mailed papers to defendants’ business addresses and
presented no evidence that “the papers were delivered to any of the individual defendants” or
that “the people who signed for the mailings were authorized to receive service of process, as
distinct from authorized to receive mail”); Cornish v. United States, 885 F. Supp. 2d 198, 204-05
(D.D.C. 2012) (same); Anderson v. Gates, No. 12-1243-JDB, 2013 WL 6355385, *5 (D.D.C.
Dec. 6, 2013) (same); Toms v. Hantman, 530 F. Supp. 2d 188, 191 (D.D.C. 2008) (same as to
service under both D.C. and Maryland law); Little, 2014 WL 271628, at *3 (same as to service
under Maryland law); Gant v. Kant, 314 F. Supp. 2d 532, 533 (D. Md. 2004) (finding service on
multiple individual defendants by certified mail at the same residential address is effective under
Maryland law “only as to the defendant signing the return receipt”). That goes double for
service in Maryland via certified mail which is not designated for “restricted delivery.” See
Little, 2014 WL 271628, at *3 (“Service by certified mail, not designated for ‘Restricted
Delivery,’ to an unauthorized agent at a Defendant’s workplace is not sufficient.”). Because the
plaintiffs have no evidence—as there is none—that their certified mailings were delivered
personally to the individual federal defendants themselves or an authorized agent of those

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defendants (or that the one they sent to NSA Director Alexander in Maryland was designated as
“restricted delivery”), they cannot establish that the individual federal defendants have been
served in their personal capacity.
The plaintiffs argue “it is non-sensical [sic] to conclude that service occurred only in the[
defendants’] official capacities,” ECF No. 85 at 1, but the law flatly contradicts their position.
“In a Bivens action, the defendants must be personally served as individuals in order for a court
to have jurisdiction over them. . . . The failure to effect individual service is fatal to a Bivens
claim.” Cornish, 885 F. Supp. 2d at 205 (internal quotations and citations omitted) (internal
alterations in original); see Fed. R. Civ. P. 4(i)(3) (requiring that federal employee sued in
individual capacity for actions related to federal employment be served as an individual); Maye
v. Reno, 231 F. Supp. 2d 332, 335 (D.D.C. 2002) (“In a Bivens action against a federal official in
his or her individual capacity, the defendant must be served pursuant to rules that apply to
individual defendants.”). Needless to say, the failure to effect individual service is equally fatal
to a motion to enter a default on a Bivens claim.
The plaintiffs also seem to argue that this failure can be overlooked because the
Department of Justice has entered an appearance in this case, and because the individual federal
defendants have “actual notice” of the lawsuit (or so the plaintiffs speculate). See ECF No. 85 at
1-3. The law once again says otherwise. See Mann, 681 F.3d at 373 (stating that “a defendant’s
knowledge that a complaint has been filed is not sufficient to establish that the district court has
personal jurisdiction over the defendant”); Epps, 575 F. Supp. 2d at 242 n.14 (noting that actual
notice of a Bivens suit “does not substitute for technically proper service under Rule 4” as to the
Bivens defendants); Whitehead v. CBS/Viacom, Inc., 221 F.R.D. 1, 3 (D.D.C. 2004) (holding that
“notice alone cannot cure an otherwise defective service”) (internal quotations and citation

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omitted); United States ex rel. Cody v. Computer Scis. Corp., 246 F.R.D. 22, 26 (D.D.C. 2007)
(observing that “federal courts have firmly established that a court appearance does not waive an
otherwise valid Rule 12(b)(5) defense”); Doggett v. Gonzales, No. 06-575-RBW, 2007 WL
2893405, *3 (D.D.C. Sept. 29, 2007) (“The fact that defendants are represented by counsel from
the United States Department of Justice amounts to neither a waiver of service nor a concession
that plaintiffs properly effected service of process.”).
In short, the plaintiffs have not achieved personal service on the individual federal
defendants. The evidence they have submitted in support of their Motion for Entry of Default
does nothing to demonstrate otherwise. The Court therefore lacks jurisdiction to enter any kind
of judgment against the individual federal defendants and the plaintiffs’ Motion for Entry of
Default should be denied.
*

*

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In light of the foregoing, the Court should not only deny the plaintiffs’ Motion for Entry
of Default, but it also should dismiss the individual federal defendants from this action
altogether, after giving notice to the plaintiffs, due to the plaintiffs’ failure to serve those
defendants within 120 days from the filing of the original complaint. See Fed. R. Civ. P. 4(m).
It has now been more than twice that long, but the plaintiffs have not effected personal service on
the individual federal defendants, or requested an extension of time to do so. Nor can the
plaintiffs “show good cause” for delaying so long. Id.
As recounted above, the plaintiffs’ attorney in this case has had the undersigned’s name
and contact information for all but six of the preceding 266 days that this case has been pending;
he even called the undersigned directly to discuss other matters in this case in September 2013;
he was aware at least as early as the status conference on October 31, 2013, that the undersigned

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represented the individual federal defendants (and that other attorneys from the Department of
Justice represented the Government defendants); and he was notified more than once that the
individual federal defendants had not been served personally. But the plaintiffs nevertheless
appear to have made no effort to ensure that the individual federal defendants were served
personally and in a timely manner under applicable law. Under these circumstances, the
plaintiffs cannot show any cause, much less good cause, for failing to serve the individual federal
defendants personally in the preceding 266 days. See Mann, 681 F.3d at 374 (“Good cause
exists when some outside factor[,] rather than inadvertence or negligence, prevented service . . .
.”) (internal quotations, citation, and alteration omitted); Whitehead, 221 F.R.D. at 3 (“Mistake of
counsel or ignorance of the rules of procedure usually does not suffice to establish good cause.”)
(internal quotations and citation omitted); Prunte v. Universal Music Group, 248 F.R.D. 335,
338-39 (D.D.C. 2008) ( “[A] plaintiff must employ a reasonable amount of diligence in
determining who to serve and how to effect service [before good cause may be found.]”). Given
the plaintiffs’ lengthy and inexcusable failure to serve the individual federal defendants
personally, the Court should invoke its authority under Rule 4(m) to begin the process of
dismissing the individual federal defendants for a lack of timely service of process. 2

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Dismissal on this basis would be particularly appropriate in this case, as the plaintiffs’ Bivens
claims face other formidable legal obstacles. Most obviously, various forms of absolute and
qualified immunity protect the individual federal defendants from personal civil damages
liability here: President Obama enjoys absolute presidential immunity, Judge Vinson enjoys
absolute judicial immunity, and Attorney General Holder and NSA Director Alexander are
entitled to qualified immunity. See generally Nixon v. Fitzgerald, 457 U.S. 731 (1982)
(establishing absolute presidential immunity); Stump v. Sparkman, 435 U.S. 349 (1978)
(reaffirming absolute judicial immunity); Harlow v. Fitzgerald, 457 U.S. 800 (1982)
(establishing qualified immunity from constitutional tort claims for most executive officials).
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CONCLUSION
For the reasons stated above, the individual federal defendants respectfully request that
the Court deny the plaintiffs’ Motion for Entry of Default.
Respectfully submitted this 28th day of February 2014,
STUART F. DELERY
Assistant Attorney General, Civil Division
RUPA BHATTACHARYYA
Director, Torts Branch
/s/ James R. Whitman
JAMES R. WHITMAN (D.C. Bar No. 987694)
Senior Trial Attorney
United States Department of Justice
Torts Branch, Civil Division
P.O. Box 7146
Ben Franklin Station
Washington, D.C. 20044-7146
Tel: [phone]
Fax: [phone]

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