Surveillance

A Further Note on the Second Circuit, the DC Circuit, and Section 215

By Benjamin Wittes
Monday, May 11, 2015, 8:53 AM

On Saturday, in writing about the Second Circuit's 215 decision, I mentioned the DC Circuit's pending Klayman case and its capacity to throw a wrench into the current debate: "Yes, it is possible---likely, even---that the D.C. Circuit will disagree with the Second Circuit, and that the meaning of 215 will thus be ultimately subject to the whimsical mind of Anthony Kennedy." It's probably worth an additional word on this point, since the dynamic here is actually pretty complicated. And after reviewing the briefs and the oral argument in Klayman, I suspect this sentence is wrong.

The Klayman case may not be decided in time to influence the current congressional deliberations at all. And because of the oddities of the way it has been litigated, it does not obviously present the same issue as the one the Second Circuit just addressed. The result, as I shall explain, is that the Klayman case could affect the current congressional deliberations (a) not at all (if it does not come down before June), (b) atmospherically but not substantively, or (c) by creating one of two possible circuit splits.

Klayman is before the D.C. Circuit as a Fourth Amendment case, not a challenge to the statutory authorization of the 215 program. Though the plaintiffs did initially make this argument, and the district court actually ruled that judicial review of statutory challenges was precluded, they have abandoned statutory arguments on appeal---focusing only on their constitutional claims. The result, the government argues, is that no statutory issues are properly before the D.C. Circuit. But the Center for National Security Studies, no doubt sensing that the statutory arguments here are much stronger than the constitutional claims, has tried to keep the point alive and central, arguing in an amicus brief that the court should---as a matter of constitutional avoidance---affirm on alternative grounds similar to those the Second Circuit just adopted. At oral argument last year, the Center for National Security Studies received argument time.

That said, the panel---particularly Judge David Sentelle--seemed very skeptical that the court could appropriately consider statutory grounds as an alternative basis for affirming the district court. So the argument focused almost entirely on the Fourth Amendment issues, on which the Second Circuit specifically avoided ruling. On the other hand, the judges did explore respectfully with government counsel a set of asserted barriers to standing that that the Second Circuit has now rejected.  And on the merits, Larry Klayman seemed to gain no traction with the judges on his constitutional claims. The most likely outcome, it seems to me, is either reversal on the merits of Judge Leon's Fourth Amendment holding or the Justice Department's prevailing on standing grounds---and there is only an outside chance of a ruling that touches on the statutory side.

So there are a bunch of different possible impacts the Klayman case could have on the late-stage legislative wrangling over Section 215. The first possibility, of course, is that the D.C. Circuit does not rule in time, in which case it will have no impact---save that its pendency will add to an air of litigation uncertainty hanging over the program and that people like me will write posts like this one.

The second possibility is that the D.C. Circuit will rule and uphold program on constitutional grounds but not treat the statutory questions. (I discount the possibility that the court will strike down the program on Fourth Amendment grounds, as none of the judges showed any sign of wanting to do that.) If this happens, there will be no circuit split. The Second Circuit will have ruled that the program is not statutorily authorized and avoided treating its constitutionality, and the D.C. Circuit will have ruled that the program does not violate the Fourth Amendment but avoided ruling on its statutory authorization. Such a ruling will, I think, have a significant optical impact, though perhaps not create circuit split requiring Supreme Court review. The headline will be, "Appeals Court Upholds Metadata Program" just as a group of conservative senators are having to come to grips with the fact that a "clean" authorization of 215 is not a viable way forward. Such a ruling could considerably embolden them in holding out for reauthorizing the program as is.

A third possibility is that the D.C. Circuit could side with the government on standing. The government's standing argument is at least a little better than the Second Circuit gives it credit for. The reason is that the coverage of the 215 program is not actually complete, so a given plaintiff really does not know for sure that his or her metadata has been collected. The D.C. Circuit, having a somewhat tougher view of standing generally than the Second Circuit, may be more receptive to this argument than was the court in New York. So it's possible that a circuit split could arise not over the meaning of 215 itself but over the standing of plaintiffs to challenge the program. This would require Supreme Court review, and it could result in the Second Circuit's opinion being ultimately nullified, but it won't result in an opinion taking a different view of the scope of Section 215.

Finally, it is possible that the D.C. Circuit could see the statutory argument as an attractive alternative to a major constitutional holding. Given Judge Sentelle's comments at oral argument, this approach certainly won't have his vote, and notwithstanding my comment on Saturday, I doubt it will attract either of the other two panelists either: Stephen Williams or Janice Rogers Brown. That said, there is a chance that the D.C. Circuit will touch on the statutory issues in ways that will impact the current debate directly.