'Come on!' Judge Leon sticks to his guns, and the government appeals, in Section 215 case [UPDATED]

|The Volokh Conspiracy |

Did you think the litigation over the bulk telephony metadata program was over? If so, guess again. Judge Leon has issued a new opinion in Klayman v. Obama, the long-running litigation over the program that was revealed by Edward Snowden in 2013. And with just days before the program ends, it will probably be up to the U.S. Court of Appeals for the District of Columbia Circuit to have the last word. [UPDATE: The D.C. Circuit has taken that word, staying Judge Leon's order pending appeal.]

First, a recap. Judge Richard Leon ruled in 2013 that the program should be enjoined on Fourth Amendment grounds. In June, Congress passed new legislation ordering the program to end by Nov. 29. In August, the D.C. Circuit reversed Judge Leon's ruling on standing grounds. According to the D.C. Circuit, it wasn't yet clear that the plaintiffs in the case had accounts that were part of the National Security Agency records program.

That brings us back to the district court before Judge Leon. At a hearing in September, Judge Leon urged the plaintiffs to add new plaintiffs who are customers of Verizon Business Services—the provider named in the the leaked Snowden order—to get the case moving before the time window ran out. Legal Times reported:

Leon repeatedly expressed his desire to act before the USA Freedom Act ends the surveillance program in its present form at the end of November. The judge told the lawyer who challenged the program, Larry Klayman, what he thought Klayman should do to move the case forward as quickly as possible-adding the caveat that the decision was, of course, Klayman's to make. Klayman said he would take the judge's advice.

Klayman then added the new plaintiffs, J.J. Little and his law firm, J.J. Little & Associates, P.C., who are customers of Verizon Business Services.

In the the new opinion, Judge Leon rules that for the next 20 days, the government cannot collect the Verizon Business Services phone records of J.J. Little and his law firm, J.J. Little & Associates, P.C., and that it must segregate those records to ensure that they are not queried as part of the bulk telephony metadata program.

I know what you're thinking: Who cares what happens with these two sets of records? But here's the key: The government has argued that, for technical reasons, it would have to shut down the entire program to comply with a limited injunction like the one Judge Leon ordered. The government asked for a stay of the ruling pending appeal, but Judge Leon denied it. The government has since filed a notice of appeal to bring the case back to the D.C. Circuit.

I have two thoughts on the opinion:

1. Judge Leon's tremendous passion for this case, and his strong views about the merits, are abundantly clear. By handing down the decision before the deadline, Judge Leon gave himself the opportunity to explain his strong and continuing disagreement with others who have taken a different approach. Most obviously, Judge Leon expresses his continuing exasperation with the government's arguments. His responses to the government include "Please!," "Come on!" and a sarcastic "Not exactly confidence inspiring!" (Total number of exclamation points: six. Total number of italics added for emphasis: more than I could take the time to count.)

Judge Leon also implicitly criticizes the D.C. Circuit both for the timing of its decision overturning him and for its merits. The delay in the appellate ruling, Leon writes, was for "reasons unknown to [him]"; the reasoning of his reversed decision is still "dictated" by "common sense." Judge Leon also criticizes the 2nd Circuit for not reaching the Fourth Amendment merits. Unlike the 2nd Circuit, Judge Leon writes, he will not "sit idle in the face of likely constitutional violations for fear that it might be viewed as meddling with the decision of a legislative branch that lacked the political will, or votes, to expressly and unambiguously authorize the Program for another six months" [emphasis in original].

2. How much Judge Leon's decision matters depends on technical issues rather than legal ones. Formally speaking, Judge Leon's remedy is narrow. It only involves the records of J.J. Little and his law firm. But the government has claimed that because of the way the program is designed, it can't comply with a limited injunction like the one Judge Leon issued without shutting down the program entirely. As the government argued in its since-denied motion for a stay pending appeal:

[T]he only practicable way for the NSA to comply with the Court's preliminary injunction is immediately to cease all collection and queries of telephony metadata under the Section 215 program-that is, to shut the program down. That is so because the technical steps required in order to prevent the further collection of and to segregate the metadata associated with particular persons' calls would take the NSA months to complete.

Having taken that position in its briefing, the government is now stuck with it. If the D.C. Circuit doesn't stay Judge Leon's ruling, it will have to shut down the program in the remaining weeks before the statute requires its end. Stay tuned to see what the D.C. Circuit might do when the Justice Department files its motion for a stay pending appeal in the appeals court, which I would imagine will be filed shortly.

UPDATE: Well, that was fast. The D.C. Circuit has stayed Judge Leon's order pending appeal and ordered a super-expedited briefing schedule.