Better Never Than Late? The D.C. Circuit’s Problematic Standing Holding in Klayman

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:

  1. 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;
  2. 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;
  3. 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
  4. 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.

Here’s the basic problem: Courts have long assumed that, the further a case goes along, the more specificity plaintiffs must show in demonstrating their standing. Thus, standing at the motion-to-dismiss stage is usually analyzed a bit more liberally than standing at, for example, the summary judgment stage. The reason for this is obvious enough: At the motion-to-dismiss stage, it would be unfair to impose upon plaintiffs a requirement to support their claims with evidence that could not yet have been adduced. That calculus necessarily changes on the far side of discovery.

The fact that plaintiffs are seeking a preliminary injuction shouldn’t alter that analysis. Yes, plaintiffs must show a likelihood of success on the merits—but that goes to whether interim relief is justified, not whether the plaintiffs have standing sufficient to invoke the court’s jurisdiction (which must be independently assessed). And the D.C. Circuit itself had previously said so, based on the Supreme Court’s earlier decision in United States v. SCRAP. Here’s Judge Mikva in Nat’l Wildlife Fed’n v. Burford (“Burford I”):

[Defendant] argues that the [Plaintiff’s] standing should not be viewed from this more generous [motion-to-dismiss] perspective because there is a preliminary injunction at issue. This argument is flawed. In SCRAP itself, the standing issue came before the trial court in exactly the same way as in this case—on motions to dismiss and for a preliminary injunction. The Court made clear that the defendants could not complain that the allegations in the plaintiff’s complaint were not specific enough.

It’s certainly true that the Supreme Court’s standing jurisprudence has gotten far more skeptical since SCRAP—and that Clapper v. Amnesty International, in particular, raises serious questions about the standing of plaintiffs like Klayman. But neither Judge Brown nor Judge Williams (nor Judge Sentelle, for that matter) offered any explanation for why those cases (about how standing is proven in general) also allow the court to raise the standing threshold in the specific context of resolving a motion for a preliminary injunction—especially when the law of the circuit seems to expressly foreclose such a move. Indeed, the only citation Judge Williams offers in support of his analysis is his own dissenting opinion in Burford I!

So in other words, in a case that has clearly been overtaken by events, and through fractured, seriatim opinions, the D.C. Circuit has both (1) made it harder for plaintiffs to demonstrate standing in suits challenging secret government programs; and (2) made it harder for all plaintiffs to demonstrate standing sufficient to obtain a preliminary injunction in all civil litigation.

One wonders, in retrospect, if we’d have been better off with a holding that the appeal was mooted by the USA FREEDOM Act… 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).