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Government spying challenge on the way (UPDATED)

UPDATED Wednesday 11:54 a.m.  The Klayman petition before judgment has now been filed.  It is docketed at 13-931.  The government’s response is now due on March 7 , but it is free to seek extensions of the filing time.


In a plea for the Supreme Court to not wait for a federal appeals court to rule on it, a Washington, D.C., activist will be urging the Justices to hear at the earliest opportunity his constitutional challenge to the government’s sweeping telephone data monitoring operation.  The petition by Washington attorney Larry E. Klayman to bypass the U.S. Court of Appeals for the District of Columbia Circuit has not yet been docketed.

U.S. District Judge Richard J. Leon ruled on December 16 that, when the case goes to a full trial, he is likely to strike down the National Security Agency’s data-gathering.  He put that decision on hold pending an appeal.  Both the federal government and Klayman have filed separate appeals (dockets 14-5004 and 14-5016) in the D.C. Circuit, and last month that court agreed to review them together.

Klayman has shared his planned petition with various news organizations.  It was posted, here, on the website of (Thanks to Howard Bashman of the How Appealing blog for the heads-up.)

The petition’s main argument is that the government’s invasion of privacy of potentially 300 million Americans is such an important issue that a decision on its validity should not be delayed for the time it will take for lower courts to complete their review.   Judge Leon’s decision conflicts directly with a later decision by a federal judge in New York City finding that the NSA program is legal, so the Supreme Court should move in now to resolve the dispute, Klayman contended.

The Court rarely agrees to take cases away from the normal review process through the federal appeals courts, and especially when there is not a final ruling in the lower courts.  The Court’s rules, though, do allow a request to bring up a case so long as it is pending in an appeals court but not yet decided.

Recommended Citation: Lyle Denniston, Government spying challenge on the way (UPDATED), SCOTUSblog (Feb. 3, 2014, 11:08 PM),