USCA Case #14-5004
Document #1570210
Filed: 08/28/2015
8
extent and nature of their mass surveillance,” they moved in
the district court to depose “an employee of the NSA.” Pls.’
Mot. For Leave, Klayman v. Obama, 13-cv-851 (D.D.C. Oct.
30, 2013), ECF No. 15. But the district judge denied the
motion as moot after granting the preliminary injunction.
Minute Order, Klayman v. Obama, 13-cv-851 (D.D.C. Jan.
21, 2014). Given the possibility that plaintiffs’ efforts along
these lines may be fruitful, I join Judge Brown in remanding
to the district court for it to decide whether limited discovery
to explore jurisdictional facts is appropriate.
I am uncertain about the meaning of Judge Brown’s
view that although plaintiffs have failed to show a substantial
likelihood of success on standing, they have nonetheless
“fulfilled the requirements for standing,” if only “barely.”
Op. of Brown, J., at 4. If the latter “fulfill[ment]” means
simply that standing cannot be ruled out and thus poses no
jurisdictional obstacle to discovery on standing, I agree. To
the extent that Judge Brown regards the “burden of proof
required for a preliminary injunction” as “higher,” id., I don’t
understand in what sense the burden would be higher than in
other contexts (motions for judgment on the pleadings, for
summary judgment, or after hearing), or the basis for
regarding it as higher than in those contexts.
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