This morning, nearly 10 months after it was argued, the D.C. Circuit finally handed down its decision in Obama v. Klayman—the government’s appeal of Judge Leon’s December 2013 ruling that had held that the pre-USA FREEDOM Act metadata program violated the Fourth Amendment. The three D.C. Circuit judges produced four opinions, but here’s the nutshell:
- The panel (Brown, Williams, & Sentelle, JJ.) unanimously (a) held that the case was not mooted by the enactment of the USA FREEDOM Act; and (b) that the district court’s injunction could not stand;
- Judge Brown concluded that the plaintiffs had not met the “higher burden of proof required for a preliminary injunction” with regard to their standing, and so remands to the district court to give the plaintiffs an opportunity to meet that burden;
- Judge Williams largely agreed with that part of Judge Brown’s analysis, and “join[ed] Judge Brown in remanding to the district court for it to decide whether limited discovery to explore jurisdictional facts is appropriate”; and
- Judge Sentelle concluded that the plaintiffs clearly lacked standing and could not cure that defect on remand, and so the case should be dismissed.
Given the intervening passage of the USA FREEDOM Act, the practical impact of today’s decision is limited at best (and leaves one to wonder what the heck took so long). The case will go back to the district court, but one has the sense that the plaintiffs will have a hard time meeting the burden that Judges Brown and Williams have imposed—and so the merits of the challenge to the pre-USA FREEDOM Act program will go unreached, at least in the D.C. courts.
But lest folks think the story ends there, the underlying theory behind each of the three judges’ standing analysis could have significant implications in future cases seeking to challenge secret government programs, and, perhaps, in all cases seeking preliminary injunctive relief. Below the fold, I explain why. Continue Reading »