USCA Case #14-5004
Document #1570210
Filed: 08/28/2015
7
protective order prohibiting him from sharing
the Government’s disclosures with his client,
the court’s postdisclosure decision about
whether to dismiss the suit for lack of standing
would surely signal to the terrorist whether his
name was on the list of surveillance targets.
133 S. Ct. at 1149 n.4 (citations omitted).
These
considerations apply with equal force here, where the
government has sought to maintain a similarly strategic
silence regarding the scope of its bulk collection.
It is true that Clapper came to the Court on review of
cross-motions for summary judgment, not a preliminary
injunction, but the Court’s rejection of the Clapper plaintiffs’
claims is nonetheless telling. Those plaintiffs actually faced a
lighter burden than do ours: in granting the government’s
motion for summary judgment, the Court necessarily found
that plaintiffs’ inferences were inadequate even to preserve
the question of standing as a “genuine issue.” See Amnesty
Int’l USA v. McConnell, 646 F. Supp. 2d 633, 641 (S.D.N.Y.
2009) (quoting Fed. R. Civ. P. 56(c)), vacated and remanded
sub nom. Amnesty Int’l USA v. Clapper, 638 F.3d 118 (2d Cir.
2011), rev’d, 133 S. Ct. 1138 (2013). Here, by contrast,
plaintiffs must show a “substantial likelihood” of standing.
Accordingly, I find that plaintiffs have failed to
demonstrate a “substantial likelihood” that the government is
collecting from Verizon Wireless or that they are otherwise
suffering any cognizable injury. They thus cannot meet their
burden to show a “likelihood of success on the merits” and
are not entitled to a preliminary injunction.
It remains possible that on remand plaintiffs will be able
to collect evidence that would establish standing. Indeed,
noting that the government was “uniquely in control of the
facts, information, documents, and evidence regarding the
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