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Wednesday, June 12, 2013

A tale of two pleadings

Two lawsuits have been filed (so far--expect more) challenging the NSA's "dragnet" surveillance program. The first is Klayman v. Obama, filed in the District of the District of Columbia; the lead plaintiffs are Larry Klayman, the head of judicial watch, and Charles and Mary Ann Strange, the parents of a Navy SEAL killed in Afghanistan, on behalf of all other Verizon customers. The second is ACLU v. Clapper, filed in the Southern District of New York; the plaintiffs are the ACLU and the NYCLU, for themselves as Verizon customers who communicate with members, clients, whistleblowers, and others.

It is worth comparing very different approaches to pleading and to this case. It might even be a worthwhile lesson for class.

1) There is a ton of extraneous noise in the Klayman complaint. It spends time talking about how Klayman and the Stranges have criticized the President. There is a lot of rhetoric about "beyond an 'Orwellian regime of totalitarianism'" and how the "only purpose of this outrageous and illegal conduct is to intimidate American citizens and keep them from challenging a tyrannical administration and government presently controlled by the Defendants, a government which seeks to control virtually every aspect of Plaintiffs, members of the Class, and other American's lives, to further its own, and Defendants 'agendas'" and how this is part of a  "pattern of egregious ongoing illegal, criminal activity." Obviously this is all intentional and strategic--an example of what Beth Thornburg has called "pleading as press release." That "tyrannical administration" stuff is going to make for great soundbite, which Klayman almost certainly wants. But it is all legally irrelevant and almost certainly will have no effect on the factfinder. Even the request for damages--in excess of $ 3 billion--seems more designed to get reported on conervative blogs than to actually form the basis for recovery.

This contrasts with the ACLU complaint, which is straightforward and low-key. But the contrast illustrates a genuine strategic and pedagogical question: Does such rhetoric have a legitimate place? And how should we teach students about this, both in teaching pleading in Civ Pro and, more so, in specifically teaching about constitutional litigation in Civil Rights or Fed Courts? Is it comparable to the rhetoric we see in judicial opinions, especially dissents? Or does the comparison fail because judicial opinions are directed outward (to the public, future courts, and future litigants) while pleadings are (or should be) directed only to this court and the parties? One criticism of legal education is that we beat the passion out of students. Should we teach and encourage the sort of empassioned and emotional rhetoric we see in the Klayman complaint? Or should we teach them that there is a time and place--and a complaint is not it.

My instinct is that a pleading is not the appropriate time and place. I always am bothered by the sort of over-the-top language you see in Klayman and would strongly encourage students against this type of thing. Were I the judge, the plaintiff would lose a great deal of credibility with me.

2) Klayman has a lot of legal mistakes (or at least defects), particularly with respect to the effort to get damages. It includes a Fifth Amendment due process claim, which should not be available; substantive due process yields when more specific rights are implicated, such as the First and Fourth Amendments (both of which are pled here). It seeks damages from all defendants, including President Obama, which is, of course, impossible. It asserts state tort claims against all the individual defendants, rather than against the United States, as required by the Federal Tort Claims Act. It asserts a claim against Judge Vinson, the judge FISA Court judge who approved the request, who should have judicial immunity. There are potentially the same problems of supervisory liability that we saw in Iqbal, although a policy is clearly at issue here.

And this one is admittedly nitpicky, but it repeatedly cites Bivens as Bivens v. VI Unknown Named Agents (emphasis added). Are we suddenly in Rome (insert dictatorship joke here)? Or is this the result of some bad "change all"? Obviously, this complaint was drafted in a fairly short time. Still, should we expect more from attorneys? Again, it is about credibility with the judge.

3) The ACLU complaint is as close to one of the Forms as you are likely to see in modern times. It is short--only 38 paragraphs. It doesn't separate into several individual causes of action, with incorporation-by-reference of prior allegations; instead, it simply lists, in separate paragraphs, the three legal rules violated by the program (First Amendment, Fourth Amendment, and a federal statute).

4) Can the plaintiffs in either case establish standing under Clapper? Both sets of plaintiffs should be able to survive the "certainly impending" requirement; because the very nature of the program was to look at all Verizon customers, so any Verizon customer should have standing (perhaps even any customer of Spring and AT&T, as well). But, again, is it that simple? And doesn't that mean that plaintiffs are only going to be able to challenge extraordinarily overbroad programs, but not a slightly narrower one?

Posted by Howard Wasserman on June 12, 2013 at 09:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink


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"Were I the judge, the plaintiff would lose a great deal of credibility with me."

I guess it's a good thing you are not a judge. If I were a judge, I too would prefer a straight Rule 8 complaint: (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

But..., if an attorney wished to pile on all the happy horse manure, to an otherwise sound plausible complaint (s)he would not lose credibility with me or even lose brownie points. I'd take it in stride so long as the claim and the relief sought are within the four corners of the pleading and readily apparent.

Posted by: VMS | Jun 19, 2013 3:15:18 PM

Enjoyed the post, but didn't Larry Klayman depart as head of Judicial Watch some years ago? The complaint looks as if it's filed in his own name.

Posted by: Walter Olson | Jun 18, 2013 9:45:51 PM

"the very nature of the program was to look at all Verizon customers" We don't know that. The nature of the order was to transfer all the data from Verizon to the NSA, but that doesn't mean the NSA "looked" at it. Assuming the existence of many current investigations, with new investigations starting daily, the court could issue hundreds or thousands of orders that require Verizon and other carriers to filter out data at their end, or it could do what was done here and order Verizon to send all the data to the NSA while (it appears from public comments) constraining the NSA to itself filter out an only look at the subset of the data associated with specific court approved warrants or Section 1881a programs. If we have learned anything in the last few weeks it is that court orders are not secure from being leaked, and since Verizon employees have no "need to know" who is under investigation, having the NSA select out the subset of the data for active investigations is clearly the safest and most secure handling mechanism. It is a fairly standard legal process for a court to require disclosure of confidential information, then establish a court supervised filtering process to ensure that only a relevant subset of the material is disclosed. The intelligence agencies are certainly able to compartmentalize the handing of the full set of data from the analysis of the authorized subset of the data. If you don't trust the NSA, I don't trust lawyers who routinely handle confidential material in thousands of other cases. So what?

Given that, if a pleading contests the court order then the plaintiff has standing (his data was included in the order) but any District Court lacks jurisdiction to challenge the order of another court. If the pleading contests the use of the data in actual investigations, then the DC court has jurisdiction (over the internal activity of the NSA) but because nobody has evidence that they were the target of any active investigation where their data would be meaningfully examined, they have no standing (Clapper). Either way, your case is dead long before it is tossed out because of state secrets.

Posted by: Howard Gilbert | Jun 13, 2013 11:40:19 PM

Good points. The claims against both Judge Vinson and Verizon itself start to make even less sense.

Posted by: Howard Wasserman | Jun 13, 2013 3:54:58 PM

A Federal District Court judge appointed to also sit in a court created by Congress under its Article 1 enumerated power issued an order to a company to produce certain business records. You may disagree with the order, but doesn't the principle of comity prevent another District Court judge from reviewing the order? I know that there are limitations on citizens obtaining review by the appellate court having FISA jurisdiction, but again it is part of the original text of the Constitution that Congress controls appellate jurisdiction. No matter how carefully or carelessly worded the two pleadings are, how can they sue third parties over a court order?

Posted by: Howard Gilbert | Jun 13, 2013 8:38:30 AM

Your second sentence captures well what the purpose of a pleading *should be* and sometimes is, at least in equitable constitutional actions. Twiqbal confounds this somewhat, but this should be the basic point.

Posted by: Howard Wasserman | Jun 12, 2013 2:20:43 PM

Prof. Wasserman,

Thanks for this excellent post. Regarding your last point, as long as the ACLU gets a judge to actually wrestle with the merits and the underlying (constitutional) law, they've done their job. Narrower programs probably wouldn't be able to get past the Court's decision in Clapper given the difficulty of pinpointing who's being harmed. But if this case gets into discovery, the ACLU may be able to discover narrower programs that actually show specific harms to certain of its members. I'm sure the government will do anything it can to prevent that, though.

Posted by: Joshua | Jun 12, 2013 2:12:00 PM

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