The U.S. Supreme Court denied conservative legal activist Larry Klayman’s request for a fast-tracked review of the National Security Agency’s bulk collection of American phone records on Monday.
Klayman won a preliminary injunction against the program – stayed pending appeal – from U.S. District Judge Richard Leon on Dec 16. Leon deemed the collection “almost Orwellian” and almost certainly a violation of the Fourth Amendment. He did not address Klayman’s First and Fifth Amendment arguments in the preliminary decision.
The Department of Justice appealed Leon’s ruling to the U.S. Court of Appeals for the D.C. Circuit, but Klayman sought to leapfrog that appeals court and take the case directly to the Supreme Court.
“This case is of such imperative public importance that it justifies deviation from normal appellate practice and requires immediate consideration and determination in the Supreme Court,” he wrote in his filing with the high court.
The court denied Klayman's request without comment.
“It was a long shot, we gave it a college try,” Klayman tells U.S. News. “It’s not surprising, they obviously want it to go through the intermediate-level appellate courts first. [But] I wish they had taken it because every day our constitutional rights are violated is a day too much. It certainly would have served the American people to have this resolved as soon as possible.”
After vigorously defending the program for months, President Barack Obama announced in March he favors ending the NSA’s in-house collection and five-year retention of all American phone records if Congress passes legislation to that effect. His administration has proposed requiring warrants before the NSA can collect records from phone companies.
If the program is ended and the contested collection banned, it’s possible cases filed after whistleblower Edward Snowden’s June 2013 leaks will be deemed moot by courts.
“The court can only enjoin programs that will continue into the future, not programs that existed in the past,” Douglas Laycock, a professor at the University of Virginia School of Law, told U.S. News after Obama’s pivot.
There are at least six lawsuits challenging the program. Each seeks declarations that the program is unconstitutional and permanent injunctions ending it.
Klayman, unlike other challengers, seeks damages from Verizon and U.S. officials – which may keep his two cases alive, experts say. Cases brought by the Electronic Frontier Foundation, the American Civil Liberties Union and Sen. Rand Paul, R-Ky., do not seek damages.
“If the change comes in the form of a formal statute, rather than simply an executive branch discretionary decision, and there is no issue of past damages … I would put my money on the judiciary's finding the issue moot,” said Martin Redish, a professor at the Northwestern University School of Law.
Phone companies complying with government surveillance were granted immunity by Congress in 2007, but the government may be on the hook for damages if it's found to have violated Section 2712 of the Stored Communications Act.
“If Congress passes a statute saying that bulk data collection is not authorized … And if what the plaintiffs want is an injunction against future collection of bulk data, then any dispute about whether bulk data collection would be lawful in the absence of the new statute would be moot,” Harvard Law School professor Richard Fallon said.
“By contrast, if someone brought a damages action seeking to recover for harm caused by data collection that had occurred in the past, and was alleged to be unlawful at the time when it happened in the past, then a statute retroactively ‘clarifying’ what Section 215 [of the Patriot Act] meant in the past would be evidence, but not necessarily controlling evidence, with regard to what Section 215 meant in the past,” Fallon said.
After Leon’s December ruling, Klayman divided his original class-action lawsuit into a truncated case with a handful of plaintiffs – aimed toward reaching the Supreme Court – and a class-action, which likely will wind more slowly through the legal process.
Klayman’s challenge has been the most successful of the anti-NSA lawsuits to date. The ACLU’s suit was dismissed Dec. 27 by U.S. District Judge William Pauley of New York. That ruling is being appealed. Two cases filed by the EFF are pending in federal court in California and Paul’s lawsuit – filed Feb. 12 – may proceed parallel to Klayman’s class-action in D.C.
Updated on April 7, 2014: This article has been updated to include reaction from Larry Klayman.