KLAYMAN v. OBAMA et al

Filing 96

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, (Government Defendants' Opposition to Plaintiffs' Motion to Strike Answer) 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.,
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Plaintiffs,
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Civil Action No.
v.
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1:13-cv-00851-RJL
)
BARACK OBAMA, President of the
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United States, et al.,
)
)
Defendants.
)
____________________________________)
GOVERNMENT DEFENDANTS’ OPPOSITION TO PLAINTIFFS’
MOTION TO STRIKE GOVERNMENT DEFENDANTS’ ANSWER
TO PLAINTIFFS’ THIRD AMENDED COMPLAINT
The Government Defendants1 hereby oppose Plaintiffs’ motion to strike the Government
Defendants’ Answer to Plaintiffs’ Third Amended Complaint because Plaintiffs have failed to
meet their burden of justifying that drastic and disfavored form of relief.
Plaintiffs move this Court, under Federal Rule of Civil Procedure 12(f), to strike the
Government Defendants’ Answer in its entirety, for various reasons, including the Government
Defendants’ responses to allegations that call for answers that may reveal or tend to reveal
classified national security information that is subject to protection from disclosure by law. Pls.’
Mot. at 3-4. This includes responses that neither admit nor deny allegations concerning the
number of call-detail records produced under the April 2013 Secondary Order of the Foreign
Intelligence Surveillance Court, whether particular individuals have been targets of or subject to
intelligence collection activities, and whether certain private parties provided assistance to the

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.

Government (and what assistance, if any, was provided) in furtherance of its intelligence
programs. See Gov’t Defs.’ Answer ¶¶ 3, 7, 9, 11, 12, 25, 28, 31.
Rule 12(f), which “does not authorize the striking of an entire Answer,” Agstar Fin.
Servs., PCA v. Union Go-Dairy, LLC, 2011 WL 772754, at *1 (S.D. Ind. Feb. 25, 2011), permits
a district court “to strike from a pleading an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “Motions to strike are disfavored” in
this district. Uzlyan v. Solis, 706 F. Supp. 2d 44, 52 (D.D.C. 2010) (“striking portions of a
pleading is a drastic remedy”). “[B]ecause courts view motions to strike with such disfavor,
many courts will grant such motions only if the portions sought to be stricken are prejudicial or
scandalous.” Nwachukwu v. Karl, 216 F.R.D. 176, 178 (D.D.C. 2003) (collecting cases).
Plaintiffs, as the movants, “bear the burden of showing a motion to strike is justified,” Bond v.
U.S. Dep’t of Justice, 828 F. Supp. 2d 60, 72 (D.D.C. 2011), and in considering a motion to
strike, “the court will draw all reasonable inferences in the pleader’s favor and resolve all doubts
in favor of denying the motion.” Nwachukwu, 216 F.R.D. at 178.
Plaintiffs have failed to make the showing required for the drastic and disfavored relief
they seek under Rule 12(f). First, Plaintiffs make no argument that “an insufficient defense” has
been raised. Fed. R. Civ. P. 12(f); see also, e.g., SEC v. Gulf & W. Indus., Inc., 502 F. Supp.
343, 345 (D.D.C. 1980) (motion to strike affirmative defense could be granted “where it is clear
that [it is] irrelevant and frivolous and its removal from the case would avoid wasting
unnecessary time and money litigating the invalid defense”). Second, apart from a vague remark
in a footnote, Pls.’ Mot. at 4 n.1, Plaintiffs have not even suggested that the Answer contains
“any redundant, immaterial, impertinent, or scandalous matter” that should be stricken. Fed. R.
Civ. P. 12(f); compare Pls.’ Mot. at 4 n.1 (arguing instead that the Government’s “deliberate

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flouting of this Court’s process” is “scandalous given that material information is being withheld
which bears on egregious violations of the Constitution”), with In re Apollo Grp., 2007 WL
778653, at *4 (D.D.C. Mar. 12, 2007) (denying motion to strike where movant did “not even
suggest[]” that pleading “contain[ed] any redundant, immaterial, impertinent, or scandalous”
material). Plaintiffs’ motion should be denied for these reasons alone.2
Beyond this, Plaintiffs’ principal objection—that the Government Defendants’ answer
has identified allegations the response to which calls for classified national security information
protected from disclosure by law—plainly lacks merit. Rule 12(f) does not preclude the
Government, in responding to a complaint, from identifying the need to safeguard national
security information protected by statute or the common law. Courts have recognized that the
Government may identify potentially applicable privileges to prevent the disclosure of classified
national security information in response to a complaint. See, e.g., Mohamed v. Jeppesen
Dataplan, Inc., 614 F.3d 1070, 1080-81 (9th Cir. 2010) (en banc); id. at 1098 (Hawkins,
Schroeder, Canby, Thomas, and Paez, JJ., dissenting); Ellsberg v. Mitchell, 709 F.2d 51, 54 &
n.6 (D.C. Cir. 1983). See also Nat’l Acceptance Co. of America v. Bathalter, 705 F.2d 924, 92729 & n.5 (7th Cir. 1983) (permitting defendant not to respond to, or refuse to admit or deny, an
allegation in his answer based on Fifth Amendment grounds); cf. Doe ex rel. Rudy-Glanzer v.
Glanzer, 232 F.3d 1258, 1264 (9th Cir. 2000).
2

Plaintiffs’ few specific challenges to the contents of the Answer are also meritless.
They insist that the Government Defendants’ Answer should be stricken because “[w]hile the
Government Defendants[] ‘[a]dmit that the bulk telephony metadata program is carried out with
[the] approval of the President, under the authority of the FISC,’ they simultaneously ‘deny that
it is a “surveillance program.”’” Pls.’ Mot. at 3 (quoting Gov’t Defs.’ Answer ¶ 5). However,
the bulk telephony metadata program does not constitute “electronic surveillance” as defined by
FISA. See 50 U.S.C. § 1801(f). Plaintiffs’ attempt to find fault in the Government Defendants’
responding only as to those defendants who have been properly served, Pls.’ Mot. at 2, is
likewise meritless. See Fed. R. Civ. P. 4(e), (i)(3); see also ECF No. 88 (Individual Fed. Defs.’
Mem. in Opp. to Pls.’ Mot. for Entry of Default).
3

The Government has not yet invoked any particular privilege in this matter. See In re
Sealed Case, 121 F.3d 729, 741 (D.C. Cir. 1997) (explaining that the government is under no
“obligation to formally invoke [executive] privileges in advance of the motion to compel”); TriState Hosp. Supply Corp. v. United States, 226 F.R.D. 118, 134 (D.D.C. 2005) (same). The law
clearly permits the Government to protect national security information in litigation in an
appropriate manner at each stage of the case. See, e.g., Ellsberg, 709 F.2d at 54 & n.6 (state
secrets privilege); see also In re Sealed Case, 494 F.3d 139, 145 (D.C. Cir. 2007).3 The
Government’s approach here—identifying a potentially applicable privilege at the pleading stage
without yet invoking the privilege—is entirely appropriate. See Jeppesen, 614 F.3d at 1080-81
(pleading stage); In re Sealed Case, 121 F.3d at 741; cf. United States v. Reynolds, 345 U.S. 1,
10 (1953) (invocation of privilege upon motion to compel).
In addition, courts have recognized that where a case can be resolved on other nonprivilege grounds, consideration of the need to address a privilege assertion should appropriately
be deferred. See, e.g., Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 53 (D.D.C. 2010). Here, the
Government Defendants have moved to dismiss for lack of subject matter jurisdiction, discovery
has yet to commence, and the parties are awaiting guidance from the Court of Appeals on the
remaining merits issues in the case. In these circumstances, the Government has properly
reserved its right to protect national security information, without invoking a privilege, in an
answer to a complaint that raises allegations implicating such information.4

3

Statutory protections also foreclose the disclosure of national security information
concerning intelligence matters. See National Security Agency Act of 1959, 50 U.S.C. § 3605
(protecting information concerning NSA functions), and 50 U.S.C. § 3024(i) (granting the
Director of National Intelligence authority to protect intelligence sources and methods).
4

Moreover, Plaintiffs cite no authority for the proposition that, where privileged
information may be at issue in response to the allegations of a complaint, a separate in camera
answer must be filed.
4

For all of these reasons, Plaintiffs’ motion to strike the Government Defendants’ Answer
should be denied.
Dated: March 10, 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]
Counsel for the Government Defendants

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