By Bryan Koenig
Law360, Washington (March 9, 2016, 4:27 PM ET) – Freedom Watch founder Larry Klayman accused federal officials Tuesday of jerking him around for years to delay his three D.C. federal court challenges of the National Security Agency’s metadata collection programs, calling arguments that some officials weren’t properly served legal papers “simply not credible.”
Klayman accused former NSA director Keith Alexander of merely “playing games”‘ by filing a Feb. 19 motion to quash the individual allegations against himself and other officials, including President Barack Obama and former U.S. attorney general Eric Holder, based on how the papers were served. Klayman said each defendant was served as both an official and as an individual and each signed the summons in both capacities.
“Thus, the individual defendants have been served, being the exact same persons as the officials served in their official capacities. Defendants are playing games by pretending they have not been served – to try to shield the government officials from potential individual liability,” Klayman said in the opposition brief. “The entire motion to quash hinges on the premise that these human beings were served officially but not individually.”
The motion to quash, filed by U.S. Department of Justice attorneys, argued that none of the current and former officials has ever been personally served with the two individual suits and one class action alleging unconstitutional searches. But Klayman countered Tuesday that all seven – including U.S. District Judge Roger Vinson, National Intelligence Director James Clapper, CIA Director John Brennan and FBI Director James Comey – were served in both capacities at the same time.
The individuals would not have responded to the lawsuits’ complaints if they hadn’t been served as well as the government itself, Klayman said.
“To now claim years after the complaints were filed, that the defendants were not served is simply not credible. Defendants have jerked plaintiffs and this court around for many years, using whatever technique they could to delay proceedings,” he said.
Klayman has also been fighting the Justice Department’s efforts to pare the cases based on an argument that a current D.C. Circuit appeal of an order barring the NSA’s telephone metadata collection program covers most of the live issues in the three suits.
Government attorney Rodney Patton had argued in court last month that the allegedly unconstitutional spying has stopped, making the issues on appeal moot. Moreover, he said Klayman has no grounds to seek damages for alleged past constitutional violations of the telephone metadata program or the PRISM program for collecting foreigners’ data online because he’s shown no waiver of sovereign immunity.
The conservative Klayman, who won the latest preliminary injunction against the metadata program in one case last fall before the government launched its appeal at the D.C. Circuit, countered to the judge to keep his claims alive in part because the cases involve allegations of past unconstitutional violations from the metadata program and PRISM, which the D.C. Circuit is not hearing on appeal. He continued a “shell game” analogy to allege the government is shuffling spy programs around, saying there is no indication that the NSA would follow prohibitions on mass data collection formerly allowed by Section 215 of the USA Patriot Act, and the judge should ensure there are no further violations.
Patton said no such shell game exists.
The full D.C. Circuit in November refused to reconsider a panel ruling that put on hold the federal court order shutting down the metadata program, with one circuit judge declaring the intelligence-gathering practice to be constitutional.
The case began with a suit originally brought by Klayman, a former federal prosecutor, in 2013 seeking to force the government to end the bulk data collection program, which was revealed in documents leaked by former NSA contractor Edward Snowden. U.S. District Judge Richard J. Leon decided in December 2013 that the metadata collection program was likely unconstitutional.
But an appeals court said Klayman could not prove his phone records had been collected.
A fourth amended complaint fixed the problem in September by adding California law firm J.J. Little and Associates and lawyer Jeffrey James Little, who subscribed to Verizon Wireless Business Network, the only wireless company the government has acknowledged participated in the controversial phone data collection program.
On Nov. 9, Judge Leon issued the preliminary injunction that ordered the NSA to cease its bulk telephony metadata program, ruling the plaintiffs were likely to prevail in showing the program violated the Constitution’s prohibition on unlawful searches and seizures because bulk collection of phone metadata constitutes a search under the Fourth Amendment.
The D.C. Circuit panel granted the federal government’s emergency request allowing the NSA to continue collecting the data the following day and entered another order staying Judge Leon’s decision to give the government a shot at appeal just before the deadline set by the USA Freedom Act, which replaced the bulk collection with one in which intelligence agents must have a reason to suspect the numbers they want to monitor.
Klayman is representing himself and the other plaintiffs.
The government is represented by Benjamin C. Mizer, Joseph H. Hunt, Anthony J. Coppolino, James J. Gilligan, Rodney Patton, Julia A. Berman and Caroline J. Anderson of the U.S. Department of Justice.
The cases are Klayman v. Obama et al., case number 1:13-cv-00851, 1:13-cv-00881 and the class action is 1:14-cv-0092 in the U.S. District Court for the District of Columbia.
– Additional reporting by Michael Macagnone and Adam Sege. Editing by Jill Coffey.