USCA Case #14-5004 Document #1570210 Filed: 08/28/2015 4 from known facts. See In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from Verizon Business Network Services, Inc. on behalf of MCI Communication Services, Inc. d/b/a Verizon Business Services, No. BR-13-80 (Foreign Intelligence Surveillance Court, April 25, 2013), J.A. 250–53.2 However, the burden on plaintiffs seeking a preliminary injunction is high. Plaintiffs must establish a “substantial likelihood of success on the merits.” Sottera, Inc., 627 F.3d at 893. Although one could reasonably infer from the evidence presented the government collected plaintiffs’ own metadata, one could also conclude the opposite. Having barely fulfilled the requirements for standing at this threshold stage, Plaintiffs fall short of meeting the higher burden of proof required for a preliminary injunction. Judge Williams is right to remind us that any number of unexpected constraints may frustrate the effectiveness of a given program. Appropriations may fall short. Technicians may err. Legal challenges may stymie the most dedicated bureaucrats. 3 But while post hoc obstacles may undermine a program’s efficacy, they do not alter its intended objective, which, here, remains (commonsensically) the comprehensive collection of telephonic metadata. 2 Although originally classified “top secret,” this order was declassified on July 11, 2013. The order expired on July 19, 2013. 3 FISA provides that a “person receiving a production order may challenge the legality of [that order]…by filing a petition with the [FISC].” 50 U.S.C. § 1861 (f)(2)(A)(i). However, such petitions are filed under seal and may not be disclosed. Id. § 1861 (d)(1), (f)(2)(D)(4), (f)(2)(D)(5). Page 9 of 21