USCA Case #14-5004
Document #1570210
Filed: 08/28/2015
WILLIAMS, Senior Circuit Judge: “[A] party seeking a
preliminary injunction must demonstrate, among other things,
a likelihood of success on the merits.” Munaf v. Geren, 553
U.S. 674, 690 (2008) (internal quotations and citations
omitted); see also Mills v. District of Columbia, 571 F.3d
1304, 1308 (D.C. Cir. 2009) (requiring a “substantial
likelihood of success on the merits”) (emphasis added)
(quotations and citations omitted). In this context, the
“merits” on which plaintiff must show a likelihood of success
encompass not only substantive theories but also
establishment of jurisdiction. The “affirmative burden of
showing a likelihood of success on the merits . . . necessarily
includes a likelihood of the court’s reaching the merits, which
in turn depends on a likelihood that plaintiff has standing.”
Nat’l Wildlife Fed’n v. Burford, 835 F.2d 305, 328 (D.C. Cir.
1987) (Williams, J., concurring and dissenting). And to show
standing, a plaintiff must demonstrate an “injury in fact” that
is “actual or imminent, not conjectural or hypothetical.”
Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC),
Inc., 528 U.S. 167, 180 (2000).
Plaintiffs claim to suffer injury from government
collection of records from their telecommunications provider
relating to their calls. But plaintiffs are subscribers of
Verizon Wireless, not of Verizon Business Network Services,
Inc.—the sole provider that the government has
acknowledged targeting for bulk collection. Gov’t’s Br. at
38; Appellees’ Br. at 26-28; see also Secondary Order, In re
Application of FBI, No. BR 13-80 (FISC, Apr. 25, 2013)
(Vinson, J.). Thus, unlike some others who have brought legal
challenges to the bulk collection program, plaintiffs lack
direct evidence that records involving their calls have actually
been collected. Cf. ACLU v. Clapper, 785 F.3d 787, 801 (2d
Cir. 2015) (finding that Verizon Business subscribers had
standing to challenge the bulk collection program because
“the government’s own orders demonstrate that appellants’
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