RICHARD J. LEON, United States District Judge.
These two actions are yet another chapter in a multi-year saga, during which our three co-equal branches of government have struggled to strike the appropriate balance between protecting the citizens of our Nation and the individual liberties of those very citizens. Although the Judiciary will surely be called upon in the future to ensure that the balance struck is constitutionally sound, this Court's role in assessing the Government's conduct in these two cases ends today.
Plaintiffs filed these two related actions, Klayman v. Obama, No. 13-cv-851 (D.D.C. filed June 6, 2013) ("Klayman I"), and Klayman v. Obama, No. 13-cv-881 (D.D.C. filed June 12, 2013) ("Klayman II"), in June of 2013,
In the actions as filed, defendants are several federal agencies and departments, executive and judicial officials, and telecommunications and Internet service providers and their executive officers.
These cases are before the Court on defendants' consolidated Motion to Dismiss.
Because the controversy surrounding the Government's challenged conduct in these cases has featured prominently in the news media over the last four years, familiarity with this case is likely.
Section 215 of the USA PATRIOT Act, which governs access to certain "business records," authorizes the Government to apply to the Foreign Intelligence Surveillance Court ("FISC") for an order requiring the "production of any tangible things... for an investigation to protect against," among other things, "international terrorism." Pub. L. No. 107-56, 115 Stat. 272, 287 (2001) (codified at 50 U.S.C. § 1861(a)(1)). In May 2006 — after the Government sought and received authorization from judges of the FISC — the NSA began the bulk telephony metadata program that plaintiffs challenge today. See Klayman I, Decl. of Acting Assistant Dir. Robert J. Holley, FBI, ¶ 6 [Dkt. # 25-5]; Klayman I, Decl. of Teresa H. Shea, Signals Intelligence Dir., NSA, ¶ 13 [Dkt. # 25-4]. As part of this program, the NSA conducted daily bulk collection, storage, and analysis of telephony metadata. See id. From May 2006 until the termination of the program in November 2015, the Government obtained FISC orders directing certain telecommunications service providers to produce, in bulk, call-detail records, which contained metadata about telephone calls, including the time and duration of a call and the dialing and receiving numbers. Klayman I, Decl. of Wayne Murphy, Dir. of Operations, NSA, ¶¶ 6-7 ("Murphy Decl.") [Dkt. # 178-2]; Murphy Decl. Ex. A ("Aug. 27, 2015 FISC Order"). The FISC orders expressly excluded the content of the call as well as "the name, address, or financial information of a [telephone] subscriber or customer." See Aug. 27, 2015 FISC Order at 3 n.1. In total, the FISC authorized the program forty-three times, under orders issued by at least nineteen different FISC judges. See Murphy Decl. ¶ 7.
Under the program, once the data was collected, the Government created a repository where data could be accessed and queried by NSA analysts for the purpose of detecting and preventing terrorist attacks. Id. ¶¶ 6, 8-9. Among other minimization procedures
Although the surveillance scheme conducted pursuant to FISA's pen-trap provision features less prominently in this litigation than the Section 215 program, a brief history of that program would likely be helpful at this point.
From July 2004 until December 2011, the NSA also engaged in the bulk collection of Internet metadata, authorized by FISC orders issued pursuant to Section 402 of FISA, otherwise known as FISA's pen-register and trap-and-trace provision. See 50 U.S.C. § 1842; Murphy Decl. ¶¶ 19-20. Under section 402, the Government collected data from the "to" and "from" lines of e-mails, and the date and time the e-mails were sent, but not the e-mails' content or the "subject" line. See Murphy Decl. ¶¶ 19-20. Like the Section 215 program, the Section 402 program allowed the Government to query and analyze the bulk data, with the goal of obtaining foreign intelligence information. Id. ¶ 20. Critically, however, the FISC orders required compliance with minimization procedures that limited the retention of the metadata and required "reasonable, articulable suspicion" that the selection terms used in queries were, in fact, associated with foreign terrorist organizations. Id. The Section 402 program was ultimately discontinued because it did not meet the Government's operational expectations, and on December 7, 2011, the NSA destroyed all bulk Internet metadata collected as part of the program. Id. ¶¶ 20-21. Importantly, the Government has never "disclosed the scope on which the [Section 402] program operated or any of the identities of the providers that received orders from the FISC." Id. ¶ 20.
As with the surveillance program pursuant to FISA Section 402, a brief overview of the PRISM program is in order.
In 2008, Congress added a new Section 702 to FISA to "supplement[] pre-existing FISA authority by creating a new framework under which the Government may seek the FISC's authorization of certain foreign intelligence surveillance targeting the communications of non-U.S. persons located abroad." Clapper v. Amnesty Int'l USA, 568 U.S. 398, 404, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013). Under Section 702, upon the FISC's approval
Unlike the surveillance programs under Section 215 of the USA PATRIOT Act or Section 402 of FISA, Section 702 of FISA is a targeted content-collection program, not a bulk collection program. See Murphy Decl. ¶¶ 23, 26. As such, PRISM collection can only target non-U.S. persons located abroad who possess or are likely to receive or communicate foreign intelligence information authorized for acquisition. Id. ¶¶ 22-23. The identities of persons targeted under this program are classified, as are the identities of the electronic communications service providers that assist in the acquisition. Id. ¶ 27.
Shortly after Edward Snowden's disclosure of classified material — which revealed some of the NSA's surveillance programs for the first time
In the most recent versions of the complaints in these two consolidated cases, plaintiffs challenge the NSA's bulk collection of telephony metadata under Section 215, the Section 402 program, the PRISM program, and another program plaintiffs refer to as MUSCULAR
As a result of these alleged violations, plaintiffs assert that they have suffered "severe emotional distress and physical harm, pecuniary and economic damage, loss of services, and loss of society." Klayman I, 4th Am. Compl. ¶¶ 55, 61, 68; Klayman II, 3d Am. Compl. ¶¶ 59, 65, 74. To remedy these harms, plaintiffs seek compensatory and punitive damages, and attorneys' fees and costs, in excess of $12 billion in Klayman I, and in excess of $20 billion in Klayman II. Klayman I, 4th Am. Compl. ¶ 70; Klayman II, 3d Am. Compl. ¶ 76. Both complaints also request injunctive relief that (1) enjoins the challenged surveillance activities; and (2) requires the Government to prepare an accounting of, expunge from Government records, and return to the service providers any data collected that pertains to plaintiffs' communications. Klayman I, 4th Am. Compl. ¶ 71; Klayman II, 3d Am. Compl. ¶ 77.
In October 2013, four months after filing their complaints, plaintiffs moved for preliminary injunctions in both cases. See Klayman I, Pls.' Mot. Prelim. Inj. [Dkt. # 13], Klayman II, Pls.' Mot. Prelim. Inj. [Dkt. # 10]. And in December of that year, I enjoined the Government from further collecting plaintiffs' call records. Klayman v. Obama, 957 F.Supp.2d 1, 43-14 (D.D.C. 2013), vacated and remanded, 800 F.3d 559 (D.C. Cir. 2015) (per curiam). In so ruling, I held that plaintiffs Klayman and Charles Strange had standing to challenge both the bulk collection of metadata under these programs and the analysis of that data through the NSA's electronic querying process. Id. at 8, 26-29. On the merits, I found it significantly likely that plaintiffs would be able to show that these programs violated their reasonable expectation of privacy and therefore constituted a Fourth Amendment search, and that the searches were unreasonable. Id. at 30-42. But in light of the "significant national security interests at stake," I voluntarily stayed my order pending the Government's appeal. Id. at 43. To say the least, that opinion unleashed a firestorm of press and public discussion.
While my December 2013 injunction in Klayman I was stayed pending appeal, the other branches began to grapple with the significant constitutional questions raised by the NSA's surveillance programs, and they accordingly took steps to weigh in on the issue. In early 2014, President Barack Obama voiced many of the same concerns articulated in my December 2013 opinion. See Remarks on United States Signals Intelligence and Electronic Surveillance Programs, 2014 DAILY COMP. PRES. DOC. 30, 2 (Jan. 17, 2014) ("[I]n our rush to respond to a very real and novel set of threats, the risk of Government overreach — the possibility that we lose some of our core liberties in pursuit of security also became more pronounced."). And in March of that year, he announced that he would seek legislation to replace the Section 215 program with "a mechanism to preserve the capabilities we need without the Government holding this bulk metadata," in order to "give the public greater confidence that their privacy is appropriately protected." Presidential Statement on the National Security Agency's Section 215 Bulk Telephony Metadata Program, 2014 DAILY COMP. PRES. DOC. 213, 1 (Mar. 27, 2014).
Congress, too, responded in kind. On June 2, 2015, it enacted the USA FREEDOM Act, Pub. L. No. 114-23, 129 Stat. 268, which prohibits the Government from obtaining telephony metadata in bulk. See id. § 103, 129 Stat. at 272. The President quickly signed the USA FREEDOM Act into law, making the bulk collection of metadata unlawful, effective November 29, 2015. See id. §§ 103, 109, 129 Stat. at 272, 276. Importantly, the USA FREEDOM Act amends both Section 402 of FISA and Section 215 of the USA PATRIOT Act to prevent bulk collection by the Government. Id. § 101, 129 Stat. at 269 ("Additional Requirements for Call Detail Records"); id. § 103, 129 Stat. at 272 ("Prohibition on Bulk Collection of Tangible Things"); id. § 201, 129 Stat. at 277 ("Prohibition on Bulk Collection"); see 50 U.S.C. §§ 1861(b)(2), 1842(c).
In place of bulk collection under Section 215, the USA FREEDOM Act requires targeted searches, whereby the Government must submit an application to the FISC identifying "a specific selection term," such as a telephone number, "to be used as the basis for production" of the call-detail records sought. See USA FREEDOM Act §§ 101 (a)(3)(C)(i), 103(a), 129 Stat. 270, 272; see Murphy Decl. ¶ 14. As part of the NSA's transition to this new targeted collection program, the Government sought authority for — and the FISC approved — the following minimization procedures: (1) the Government would retain certain data in order to comply with its evidence preservation obligations; and (2) the Government would retain a three-month period of technical access, ending on February 29, 2016, so that NSA technical personnel could verify the accuracy of productions under the new targeted system. See Murphy Decl. ¶ 16; Murphy Decl. Ex. B ("Nov. 24, 2015 FISC Order").
Although I enjoined the NSA's surveillance program in December 2013, the
With little time left before the intermediate bulk collection program was set to lapse, plaintiffs moved for — and I granted — leave to file amended complaints to address the standing issue. See Klayman I, Min. Entry, Sept. 16, 2015; Klayman II, Min. Entry, Feb. 11, 2016. As relevant here, these complaints added the Little Plaintiffs — both of whom allege they have been subscribers to VBNS at all material times as parties to both actions. See Klayman I, 4th Am. Compl. ¶ 18; Klayman II, 3d Am. Compl. ¶ 22. Plaintiffs also bolstered the complaint in Klayman I by pleading additional facts to support their allegation that Verizon was a participating telecommunications service provider in the challenged surveillance programs. Klayman I, 4th Am. Compl. ¶¶ 47-48.
With the Section 215 bulk-collection program set to expire on November 29, 2015, I warned plaintiffs at a status conference on September 2, 2015 that, if they wanted to litigate their Fourth Amendment claims, it was "time to move" because "the clock is running. And there isn't much time ..." Klayman I, Status Hr'g Tr. 23:6, 15:5-6, Sept. 2, 2015 [Dkt. # 143]. Accordingly, on September 21, 2015, plaintiffs renewed their motion for a preliminary injunction against the programs, and also sought to prohibit the Government from destroying "any records relating to the Plaintiffs until this case is tried and all appeals are heard, and only then to purge them from government retention." Klayman I, Pls.' Renewed Mot. Prelim. Inj., Proposed Order ("Pls.' Proposed Order") [Dkt. # 149-3]. On November 9, 2015, I granted the Little Plaintiffs a preliminary injunction barring bulk collection of records about their calls under Section 215, but I denied relief to the other plaintiffs. Klayman v. Obama, 142 F.Supp.3d 172, 178 (D.D.C. 2015). This time, however, I did not stay my injunction. Id. at 198. Not surprisingly, the Government immediately appealed, and our Circuit granted their request for a stay of my injunction pending appeal. Order, Klayman v. Obama, No. 15-5307, 2015 WL 9010330 (D.C. Cir. Nov. 16 2015).
Less than ten days later, the USA FREEDOM Act went into effect, and the Government accordingly moved to vacate the injunction and dismiss their appeal as moot. In an unpublished order dated April 4, 2016, the Court of Appeals granted the Government's motion, vacating the injunction and dismissing the appeal as moot. See Order, Klayman v. Obama, No. 15-5307 (D.C. Cir. Apr. 4, 2016), Doc. No. 1606954. Once again on remand to this Court, the individual-capacity defendants moved to dismiss the claims against them for plaintiffs' failure to effect service, and I granted their motions on September 20, 2016. Klayman I, 9/20/16 Mem. Order [Dkt. # 175]; Klayman II, 9/20/16 Mem. Order [Dkt. # 120].
Because plaintiffs' complaints have been amended several times since defendants motions for partial dismissal were filed in January of 2014, I ordered defendants to brief a renewed dispositive motion. See Klayman I, 9/20/16 Mem. Order at 4-5. The Government accordingly filed a consolidated motion to dismiss both Klayman
Article III of the Constitution limits the judicial power of the United States to adjudicating "cases" and "controversies." Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982)."Three inter-related judicial doctrines — standing, mootness, and ripeness, ensure that federal courts assert jurisdiction only over `[c]ases' and `[c]ontroversies'" consistent with their authority under Article III. Williams v. Lew, 77 F.Supp.3d 129, 132 (D.D.C. 2015) (internal quotation marks omitted). Importantly here, the Supreme Court has noted that the standing inquiry is "especially rigorous when reaching the merits of the dispute would force [the judiciary] to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional." Raines v. Byrd, 521 U.S. 811, 819-20, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997). This is, of course, because "[r]elaxation of standing requirements is directly related to the expansion of judicial power." United States v. Richardson, 418 U.S. 166, 188, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974) (Powell, J., concurring). And regardless of whether a plaintiff had standing to sue when he initially filed his complaint, the doctrine of mootness bars a federal court from adjudicating that plaintiff's claim if "events have so transpired that the [court's] decision will neither presently affect the parties' rights nor have a more-than-speculative chance of affecting them in the future." Chamber of Commerce v. EPA, 642 F.3d 192, 199 (D.C. Cir. 2011) (quoting Clarke v. United States, 915 F.2d 699, 701 (D.C. Cir. 1990)).
Here, defendants have filed a motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, and thus they seek dismissal of plaintiffs' complaints based on lack of subject matter jurisdiction. Under Rule 12(b)(1), "[a] defendant may make a factual attack on the Court's subject matter jurisdiction... as opposed to a facial attack based solely on the complaint." Finca Santa Elena, Inc. v. U.S. Army Corps of Eng'rs, 873 F.Supp.2d 363, 368 (D.D.C. 2012). When a defendant makes a factual attack on jurisdiction — as defendants do here — "no presumption of truthfulness applies to the factual allegations" in the plaintiff's complaint. Richards v. Duke Univ., 480 F.Supp.2d 222, 232 (D.D.C. 2007) (quoting Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)). I therefore am "not obliged to accept [plaintiffs'] allegations as true and may examine evidence to the contrary and reach [my] own conclusion on the matter." Finca Santa Elena, Inc., 873 F.Supp.2d at 368 (quoting 5B Charles Alan Wright & Arthur Miller, Federal Practice and Procedure § 1350 (3d ed. 2004)).
Defendants argue that the statutorily mandated cessation of the Section 215 bulk collection program has mooted plaintiffs' claims for declaratory and prospective injunctive relief. See Klayman I, Defs.' Reply Supp. Mot. Dismiss Klayman I & Klayman II for Lack of Subj. Matter Jurisdiction 3 [Dkt. # 184]. Because the Government's challenged conduct is now prohibited — both by federal statute and by an order of the FISC — I agree with defendants that plaintiffs' challenge to the Section 215 program no longer presents an Article III case or controversy.
Both of plaintiffs' requests for declaratory and prospective injunctive relief are accordingly mooted by this change in law. First, plaintiffs' request for a "cease and desist order to prohibit" the bulk collection of their telephony metadata under Section 215 is moot because the USA FREEDOM Act prohibits bulk collection. See Klayman I, 4th Am. Compl. ¶ 71. Indeed, "[i]t is well established that a case must be dismissed as moot if new legislation addressing the matter in dispute is enacted while the case is still pending." Am. Bar Ass'n v. Fed. Trade Comm'n, 636 F.3d 641, 643 (D.C. Cir. 2011). Second, plaintiffs' request for a "cease and desist order to prohibit" the NSA from querying plaintiffs' metadata allegedly collected pursuant to Section 215 is also moot because the FISC has prohibited the NSA from accessing this data for intelligence analysis purposes. See Klayman I, 4th Am. Compl. ¶ 71; Klayman II, 3d Am. Compl. ¶ 47; Nov. 24, 2015 FISC Order at 6; Murphy Decl. ¶ 17. Because of this intervening action by Congress and the FISC, it is clear that a decision by this Court would "neither presently affect" plaintiffs' rights nor "have a more-than-speculative chance of affecting them in the future," and thus plaintiffs' claims no longer present a live Article III case or controversy. Chamber of Commerce, 642 F.3d at 199 (quoting Clarke, 915 F.2d at 701).
Plaintiffs rejoin that the voluntary-cessation exception to the mootness doctrine applies here, and thus that their claims are not moot. Klayman I, Pls.' Opp'n to Defs.' Mot. Dismiss Klayman I & Klayman II for Lack of Subj. Matter Jurisdiction 14-15 ("Pls.' Opp'n") [Dkt. # 182]. I disagree. "The rationale supporting voluntary cessation as an exception to mootness is that, without an order from the Court preventing [the defendant] from continuing the allegedly illegal practice, the defendant [would be] free to return to
Plaintiffs again counter that the USA FREEDOM Act is "riddled with loopholes that would "allow the intelligence agencies to collect all kinds of personal data without prior court approval." Pls.' Opp'n 13, 26. As an example of a loophole that create[s] plenty of `wiggle room' for the intelligence agencies to continue to operate unchecked," plaintiffs cite Section 102 of the USA FREEDOM Act. Id. at 12. That Section provides that the Attorney General may require the "emergency production" of documents or other tangible things without a FISC order, for a period not to exceed seven days, if he "reasonably determines that the factual basis for the issuance of [a FISC] order under [Section 215] to approve such production of tangible things exists." USA FREEDOM Act § 102, 129 Stat. at 271; 50 U.S.C. § 1861(i)(1)(B); Pls.' Opp'n 13. But even under this emergency exception, the statute is clear that the Attorney General has no authority to require bulk collection; he may authorize collection based only on specific selection terms that he reasonably determines to be associated with foreign terrorist activity. See USA FREEDOM Act § 102, 129 Stat. at 271; 50 U.S.C. § 1861(i)(1)(B). And the Attorney General's determinations are, of course, subject to mandatory review by the FISC. See USA FREEDOM Act § 102, 129 Stat. at 271; 50 U.S.C. § 1861(i)(1)(C). Thus, plaintiffs' fear that the USA FREEDOM Act "in many ways actually expands the scope of wide-scale unconstitutional surveillance" is unsupported by the text of the statute. Pls.' Opp'n 12.
Plaintiffs' final argument on this point is that they should at least be permitted
In addition to their request for injunctions against further bulk collection and querying of their telephony metadata, plaintiffs also request that any of their metadata that was collected pursuant to Section 215 be "expunged from federal government records." Klayman I, 4th Am. Compl. ¶ 71; Klayman II, 3d Am. Compl. 77. Because I conclude that plaintiffs lack standing to pursue this injunctive relief, their request must also be denied.
To establish Article III standing, plaintiffs must show, among other things, that their injury is "`fairly trace[able] ... to the challenged action' of [defendants]." Bhd. of Locomotive Eng'rs v. Surface Transp. Bd., 457 F.3d 24, 28 (D.C. Cir. 2006) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Importantly, an Article III court may only redress injury "`that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court.'" Nw. Airlines, Inc. v. Fed. Aviation Admin., 795 F.2d 195, 203-04 (D.C. Cir. 1986) (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976)). Similarly, our Circuit has "consistently held that self-inflicted harm doesn't satisfy the basic requirements for standing." Nat'l Family Planning & Reprod. Health Ass'n v. Gonzales, 468 F.3d 826, 831 (D.C. Cir. 2006).
Here, defendants have retained the remaining call-detail records at the request of plaintiffs — in this litigation — and third parties in other similar cases. As discussed above, the FISC's November 24, 2015 order required the Government to destroy all bulk telephony metadata produced under the Section 215 program once its preservation obligations in civil litigation had been lifted. See Murphy Decl. ¶ 18; Nov. 24, 2015 FISC Order at 8. And as of the date of this opinion, the only metadata that the Government still retains from its bulk collection under Section 215 is metadata
In addition to their challenges to the Government's now defunct surveillance program under Section 215 of the USA PATRIOT Act, plaintiffs seek a "cease and desist order to prohibit" the NSA from collecting or querying bulk Internet metadata pursuant to Section 402 of FISA, and an order requiring the "expunge[ment] from federal government records" of any data the NSA collected as part of this program. Klayman II, 3d Am. Compl. ¶ 77. Defendants insist that plaintiffs' claims do not present an Article III case or controversy because the NSA ceased FISC-authorized bulk collection of Internet metadata — and destroyed all metadata collected pursuant to Section 402 — in December of 2011. See Klayman I, Defs.' Mem. Supp. Mot. Dismiss Klayman I & Klayman II for Lack of Subj. Matter Jurisdiction 31 ("Defs. Mem.") [Dkt. # 178-1]. Unfortunately for plaintiffs, defendants are correct.
Eighteen months before plaintiffs filed this suit, the NSA had already discontinued its bulk collection program under FISA and destroyed the accumulated metadata. See Murphy Decl. ¶¶ 19-21. And four years after the Section 402 program was discontinued, Congress enacted the USA FREEDOM Act, which prohibits bulk collection of metadata under FISA's pen-trap provision. USA FREEDOM Act § 201, 129 Stat. at 277; 50 U.S.C. § 1842(c)(3). Thus, even assuming that plaintiffs' Internet metadata had been collected pursuant to Section 402, this Court could not grant plaintiffs the relief they request because that metadata was destroyed eighteen months prior to the filing of plaintiffs' complaints. As such, plaintiffs have failed to show an injury that could be redressed by the injunctive relief they request, and this Court accordingly lacks jurisdiction to hear their claim.
Plaintiffs next challenge the PRISM program, which — unlike the Section 215 program or the bulk collection of Internet metadata pursuant to Section 402 of FISA — is an ongoing targeted collection program conducted under FISA Section 702. See 50 U.S.C. § 1881a. As discussed above, under the PRISM program, the Government uses selectors — like e-mail addresses of non-U.S. persons located abroad — to collect online communications. See Murphy Decl. ¶¶ 22-26. Plaintiffs generally allege that defendants unconstitutionally intercepted their telephonic and Internet communications pursuant to the PRISM program. Klayman II, 3d Am. Compl. ¶¶ 41, 53. And while plaintiffs' arguments on this point are slightly re-packaged, they are largely the same as those I addressed in my first opinion in this case.
In my December 2013 opinion granting plaintiffs' motion for a preliminary injunction, I rejected plaintiffs' challenges to the PRISM program on the ground that they did not allege sufficient facts to show that the NSA had actually targeted any of their communications. Klayman, 957 F.Supp.2d at 8 n.6. I based my ruling on the Supreme Court's decision in Clapper, 568 U.S. at 398, 133 S.Ct. 1138, in which the Court concluded that the plaintiffs in that case lacked standing to challenge the very same statutory provision as the one challenged here. That was so, according to the Court, because it was speculative whether "potential future surveillance is certainly impending or is fairly traceable to § 1881a." Clapper, 568 U.S. at 414, 133 S.Ct. 1138. In rejecting plaintiffs' claims, I noted that "plaintiffs here have not even alleged that they communicate with anyone outside the United States at all, so their claims under Section 702 are even less colorable than those of the plaintiffs in Clapper." Klayman, 957 F.Supp.2d at 8 n.6 Although
In the most recent version of their complaint in Klayman II, plaintiffs allege specific facts intended to show that they do, in fact, communicate with persons abroad who are likely to have been monitored under the PRISM program. Specifically, plaintiffs claim that "Klayman frequents and routinely telephones and e-mails individuals and high-ranking government officials in Israel, a high-conflict area where the threat of terrorism is always present." Klayman II, 3d Am. Compl. ¶ 12. Klayman proceeds to list various meetings and communications he has had with persons in Israel, Spain, the United Kingdom, and several other European nations "which have very large Muslim populations and where terrorist cells are located." Id. ¶¶ 12-17. He also recounts an occasion in which he was participating in a radio interview about the NSA, when the show experienced "a tech meltdown." Id. ¶ 16. Klayman states in conclusory fashion — that this event made "clear that the NSA was attempting to harass him." Id. The Stranges have also bolstered their standing claim by alleging that they "make telephone calls and send and receive e-mails to and from foreign countries" and that they "have received threatening e-mails and texts from overseas, in particular Afghanistan." Id. ¶ 19. The other remaining plaintiffs variously allege that they make and receive telephone calls and send and receive e-mails to and from foreign countries. Id. ¶¶ 20-21. Based on these new allegations, plaintiffs insist that they have "pled specific facts that strongly support [their] contention that their metadata was collected under the PRISM Program, and that it remains substantially at risk of such collection." Pls.' Opp'n 22. I disagree.
Notwithstanding these efforts to salvage their suit, plaintiffs' allegations remain plainly insufficient under the standard the Supreme Court articulated in Clapper. In Clapper, the plaintiffs alleged that the very fact that the PRISM program was operational gave them "no choice but to assume that any of [their] international communications may be subject to government surveillance, and [they] have to make decisions ... in light of that assumption." 568 U.S. at 411, 133 S.Ct. 1138. The Supreme Court rejected these allegations out of hand, reasoning that the plaintiffs had "set forth no specific facts demonstrating that the communications of their foreign contacts will be targeted." Id. at 412, 133 S.Ct. 1138. The Court ultimately concluded that there were too many steps in the plaintiffs' speculative chain of causation for their claims to pass muster under Article III, especially because Section 1881a "at most authorizes — but does not mandate or direct the surveillance that [plaintiffs] fear." Id.
The Court proceeded to set forth four additional breaks in the Clapper plaintiffs' chain of causation that doomed their standing. First, even if the plaintiffs could show that their foreign contacts would be targeted, they had no facts showing that the Government would use the PRISM program, rather than other methods of surveillance, to do so. Id. Second, even if the plaintiffs could show that the Government would seek FISC authorization to surveil their foreign contacts under the PRISM program, they could do nothing more than speculate as to whether the FISC would actually authorize that surveillance. Id. at 413, 133 S.Ct. 1138. Third, even if the Government were to obtain FISC approval, the plaintiffs set forth no facts to support the conclusion that the Government would succeed in obtaining the targeted communications. Id. at 414, 133 S.Ct. 1138. And fourth, even if the
The same is true here. In fact, most of plaintiffs' allegations that they communicate with unidentified persons in foreign countries fall far short even of the Clapper plaintiffs' allegations, which the Supreme Court held to be inadequate. Among other defects, plaintiffs here have not alleged any facts tending to show that: (1) their foreign contacts would be targeted by the PRISM program; (2) defendants would seek FISC authorization to surveil their foreign contacts under the PRISM program; (3) defendants would actually succeed in obtaining communications from plaintiffs' foreign contacts; or (4) plaintiffs' communications with their foreign contacts would be among those collected pursuant to the PRISM program. See Clapper, 568 U.S. at 411-414, 133 S.Ct. 1138. While Klayman has alleged more facts than the other plaintiffs to support his challenge to the PRISM program, his assertions that his foreign contacts have, in fact, been targeted by the Government under the PRISM program "are necessarily conjectural," because the identities of PRISM targets are classified. Id. at 412, 133 S.Ct. 1138; Murphy Decl. ¶ 27.
Plaintiffs take issue with this line of reasoning, arguing that, by classifying the identities of persons targeted by the PRISM program, the Government is able to "escape liability for [its] illegal activities," by depriving plaintiffs of the evidence they need to establish Article III standing. Pls.' Opp'n 23. But the Supreme Court expressly rejected this very same argument in Clapper. First, the Court noted that "[t]he assumption that if [plaintiffs] have no standing to sue, no one would have standing, is not a reason to find standing." Clapper, 568 U.S. at 420, 133 S.Ct. 1138 (internal quotation marks omitted). Second, the Court recognized that the PRISM program was not insulated from judicial review because "Congress created a comprehensive scheme in which the [FISC] evaluates the Government's certifications, targeting procedures, and minimization procedures including assessing whether the targeting and minimization procedures comport with the Fourth Amendment." Id. at 421, 133 S.Ct. 1138. Therefore, while plaintiffs may disagree with Congress's decision to enact Section 1881a — and they may be dissatisfied with the FISC's rulings pursuant to that statute — these issues are irrelevant to my assessment of plaintiffs' standing in this case. Id. Plaintiffs' challenge to the PRISM program is accordingly dismissed.
Finally, plaintiffs attempt to advance constitutional tort claims for compensatory and punitive damages. Specifically, they assert Bivens claims against both the individual defendants — who have since been dismissed from this action — as well as the Government defendants for violations of their First, Fourth, and Fifth Amendment rights. Klayman I, 4th Am. Compl. ¶¶ 49-69; Klayman II, 3d Am. Compl. ¶¶ 55-75. The Government insists, however, that I lack jurisdiction to hear plaintiffs' claims because they are barred by sovereign immunity. Defs.' Mem. 38. I agree.
"[I]t is well established that `[a]bsent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.'" Debrew v. Atwood, 792 F.3d 118, 124 (D.C. Cir. 2015) (quoting
And this omission in plaintiffs' briefing is not surprising, given the fact that "federal constitutional claims for damages are cognizable only under Bivens, which runs against individual governmental officials personally." Loumiet v. United States, 828 F.3d 935, 945 (D.C. Cir. 2016); see also Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Although plaintiffs insist that they have plans to "file a motion ... to serve the Individual Defendants, in their individual capacities to allow this crucial matter to proceed substantively," the fact remains that the individual defendants were dismissed from this case, and thus plaintiffs' constitutional claims against them cannot proceed.
While the zeal and vigilance with which plaintiffs have sought to protect our Constitutional rights is indeed laudable, this Court, in the final analysis, has no choice but to dismiss these cases for plaintiffs' failure to demonstrate the necessary jurisdiction to proceed. I do so today, however, well aware that I will not be the last District Judge who will be required to determine the appropriate balance between our national security and privacy interests during this never-ending war on terror. Hopefully by the time these issues are next joined, our Supreme Court will have had the opportunity to provide us with further guidance on the parameters of our privacy interests in this era of ever-increasing electronic communication. If not, concerned citizens such as these will continue to shoulder the heavy yoke that vigilance to our Constitutional liberties surely requires.
Thus, for all the reasons stated herein, Defendants' Motion to Dismiss is GRANTED. Plaintiffs' complaints are both DISMISSED with prejudice. A separate Order consistent with this decision accompanies this Memorandum Opinion.
The Stranges are the father and stepmother of a Navy SEAL who was killed in Afghanistan in 2011. Id. ¶ 17. Like Klayman, the Stranges are subscribers of Verizon, and they believe defendants have accessed their phone, Internet, and computer records because they have been vocal about their criticism of President Obama, his administration, and the U.S. military. Id. Little is a criminal defense lawyer who has litigated against the Government, which he believes places him "in the line of fire of Government surveillance by the Government Defendants." Id. ¶ 18. Little alleges that surveillance of him and his law firm implicates "breaches of attorney-client privilege and work product." Id. Little and his firm are subscribers of Verizon Business Network Services ("VBNS") and Verizon.
The complaint in Klayman II adds Michael Ferrari ("Ferrari") and Matt Garrison ("Garrison") as additional parties. Klayman II, 3d Am. Compl. ¶¶ 20-21. Ferrari and Garrison are private investigators who claim that their communications were certainly monitored by defendants because they frequently engage in e-mail and telephone communications with foreign countries. Id. Ferrari alleges that he is a subscriber, consumer, and user of Sprint, Google/Gmail, Yahoo!, and Apple, while Garrison alleges that he is a consumer and user of Facebook, Google, YouTube, and Microsoft products. Id.
