In re Opinions & Orders by the Fisc Addressing Bulk Collection of Data Under the Foreign Intelligence Surveillance Act, Docket No. FISCR 20-01

CourtU.S. Foreign Intelligence Surveillance Court
Writing for the CourtPER CURIAM.
Citation957 F.3d 1344
Docket NumberDocket No. FISCR 20-01
Decision Date24 April 2020
Parties IN RE OPINIONS & ORDERS BY the FISC ADDRESSING BULK COLLECTION OF DATA UNDER the FOREIGN INTELLIGENCE SURVEILLANCE ACT

957 F.3d 1344

IN RE OPINIONS & ORDERS BY the FISC ADDRESSING BULK COLLECTION OF DATA UNDER the FOREIGN INTELLIGENCE SURVEILLANCE ACT

Docket No. FISCR 20-01

United States Foreign Intelligence Surveillance Court of Review.

Decided: April 24, 2020


957 F.3d 1346

Patrick Toomey, Brett Max Fauman, American Civil Liberties Union Foundation, New York, NY; Arthur B. Spitzer, Scott Michelman, Michael Perloff, American Civil Liberties Union Foundation of the District of Columbia, Washington, D.C.; David Schulz, Charles Crain, Media Freedom & Information Access Clinic, Abrams Institute at Yale Law School, New Haven, CT; Alex Abdo, Jameel Jaffer, Knight First Amendment Institute at Columbia University, New York, NY, for Petitioners.

John C. Demers, J. Bradford Wiegmann, Melissa MacTough, Jeffrey M. Smith, National Security Division, United States Department of Justice, Washington, D.C., for United States of America.

Before: Cabranes, Tallman, and Sentelle, Judges.

Per Curiam:

957 F.3d 1347

On February 11, 2020, the United States Foreign Intelligence Surveillance Court (the "FISC") (Rosemary M. Collyer, Judge ) dismissed a motion filed by the American Civil Liberties Union, the American Civil Liberties Union of the District of Columbia1 , and the Media Freedom and Information Access Clinic (jointly, the "Movants")2 for the release of certain opinions and orders by the FISC addressing the bulk collection of data3 under the Foreign Intelligence Surveillance Act ("FISA").4 In a thoughtful and careful opinion, the FISC rejected the Movants' claim that the withholding of redacted, non-public material classified by the Executive Branch violates the Movants' First Amendment right of public access.5 The Movants now seek to appeal that decision to our Court in the form of a Petition for Review (the "Petition"); in the alternative, they seek a Writ of Mandamus.

For the reasons stated below, we decline to consider the merits of the Movants' Petition and DISMISS the Petition for lack of jurisdiction.

BACKGROUND

On November 7, 2013, the Movants filed a motion seeking disclosure of the FISC's opinions addressing the Government's bulk collection of data under the FISA (the "Motion"). The Government identified four such opinions. Two of the opinions had been made public in redacted form by the FISC prior to the Movants' Motion.6 The other two opinions were released subsequently, also in redacted form, by the Government.7 The material that has been redacted in these four opinions consists of highly sensitive information that, following a declassification review, the Executive Branch concluded remains classified and, if released, could be damaging to our country's national security.8

On January 25, 2017, then-Presiding Judge Rosemary M. Collyer dismissed the Motion on the basis that the Movants lacked standing under Article III of the Constitution to seek public disclosure of the redacted, classified material in the FISC opinions.9 On November 9, 2017, the

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FISC, sitting en banc, concluded otherwise by a vote of six to five.10 The FISC held that the Movants have Article III standing to bring their First Amendment claim and thus vacated the dismissal.11

On January 5, 2018, the FISC certified the question of the Movants' Article III standing to this Court,12 and on January 9, 2018, we accepted the certification. On March 16, 2018, we issued our decision answering the certified question by agreeing with the standing analysis of the majority of the en banc FISC and concluding that the Movants had established their constitutional standing to raise their First Amendment claim.13 Specifically, in answering the certified question, we noted that the "denial of access to the redacted material constitutes an injury in fact" and that the Movants thus satisfied the irreducible minimum of Article III standing.14 We also emphasized that we did not reach, much less decide, any other question beyond the Movants' standing, including whether "other jurisdictional impediments exist to this challenge" or whether the Movants could succeed on the merits of their First Amendment claim.15 These remaining questions, including the existence of subject matter jurisdiction over the Motion, were left for the FISC to address on remand.

On remand by the FISC en banc, on February 11, 2020, Judge Collyer issued an Opinion concluding primarily that the FISC "has subject matter jurisdiction over the Motion" and that "the First Amendment does not confer a qualified right of public access to the material sought by the Movants."16 Accordingly, she rejected the Movants' First Amendment claim and dismissed the Motion. This appeal followed.

DISCUSSION

It is beyond dispute that all federal courts, including our own, "are courts of limited jurisdiction."17 Federal courts "possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree."18 A lower

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federal court's power to resolve legal disputes is limited in at least three independent and equally important ways.19 First, an action invoking our "judicial Power" must involve a "Case[ ]" or "Controvers[y]" within the meaning of Article III of the Constitution20 —a requirement that the Supreme Court has defined through various jurisdictional doctrines, such as standing, ripeness, mootness, and the prohibition against advisory opinions. Second, the action must arise under the Constitution, a law, or a treaty, of the United States, "or fall within one of the other enumerated categories of Art[icle] III, § 2."21 Third, the action must be "described by any jurisdictional statute"22 as the kind of action that Congress intended to be subject to "a court's adjudicatory authority."23

It is this third limitation that is directly implicated here. Because federal courts have an independent duty to ensure that jurisdiction exists at all stages of a case, and because we must determine that we have jurisdiction before proceeding to the merits of a claim,24 we first address our own authority to consider the Movants' Petition.

I.

At the crux of the instant appeal is the question of whether we have been authorized by Congress to review the Movants' First Amendment claim. In other words, we must decide whether the Movants' Petition falls within the class of cases carefully delineated by the FISA as within our authority as a court of appellate review. We conclude that it does not.

We begin by recognizing the well-settled principle that Congress has the exclusive authority to invest all courts inferior to the Supreme Court "with jurisdiction ... in the exact degrees and character which to Congress may seem proper for the public good."25 As creatures of Congress, all courts inferior to the Supreme Court, including our own, are empowered

957 F.3d 1350

to adjudicate only those disputes prescribed by Congress in its "relevant jurisdictional statutes."26 If a dispute is not of the kind that Congress has determined should be adjudicated, we "have no business deciding it, or expounding the law in the course of doing so."27 That is especially so where it is clear from the text of the relevant federal statute that Congress has considered carefully the scope of the court's jurisdiction.28

That is the case here. In comparison with other federal courts, the nature of the FISC's work is strictly limited in scope. The FISC is tasked primarily with "reviewing applications for surveillance and other investigative activities relating to foreign intelligence collection."29 Equally limited, if not more so, is the work of our Court of Review, which, like the FISC, is "a unique court" within the federal judiciary and our system of government.30

A.

The FISA clearly delineates the types of disputes that fall within our appellate jurisdiction. Generally, the statute provides for the creation of "a court of review which shall have jurisdiction to review the denial of any application made under this chapter [36 of Title 50 of the United States Code]."31 More specifically, the statute provides that the Court of Review "shall have jurisdiction to consider" a petition for review of a decision by the FISC32 on: (1) a FISA "production" or "nondisclosure order";33 (2) "directives" issued in writing by

957 F.3d 1351

the Attorney General and the Director of National Intelligence to an "electronic communication service provider";34 (3) orders approving the "certification" and the "targeting, minimization, and querying procedures" for "acquisitions" of non-United States persons abroad;35 and (4) orders approving the targeting of United States persons abroad to acquire foreign intelligence information.36 The FISA also authorizes our consideration of questions of law that are certified by the FISC in certain circumstances.37

Furthermore, the FISA identifies the relevant parties that are authorized to file a petition for review in our...

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2 practice notes
  • National Security and Access, a Structural Perspective
    • United States
    • Journal of National Security Law & Policy Nbr. 11-3, January 2021
    • January 1, 2021
    ...237. Id. 238. In re Opinions & Orders of this Court Addressing Bulk Collection of Data under the Foreign Intelligence Surveillance Act, 957 F.3d 1344, 1357 (FISA Ct. Rev. 2020) (“Because the crux of the Movants’ claim to disclosure here lies within the Executive’s clear authority to determi......
  • Dickey v. Christiansen, CASE NO. 2:21-CV-11566
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • July 19, 2021
    ...motion is not excessive, particularly given the COVID-19 pandemic which has created a backlog in state and federal courts. Cf. Workman, 957 F.3d at 1344 (excusing three-year delay); Turner, 401 F.3d at 725-26 (extenuating circumstances and 11-year delay in deciding appeal). Petitioner also ......
1 cases
  • Dickey v. Christiansen, CASE NO. 2:21-CV-11566
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • July 19, 2021
    ...motion is not excessive, particularly given the COVID-19 pandemic which has created a backlog in state and federal courts. Cf. Workman, 957 F.3d at 1344 (excusing three-year delay); Turner, 401 F.3d at 725-26 (extenuating circumstances and 11-year delay in deciding appeal). Petitioner also ......
1 books & journal articles
  • National Security and Access, a Structural Perspective
    • United States
    • Journal of National Security Law & Policy Nbr. 11-3, January 2021
    • January 1, 2021
    ...237. Id. 238. In re Opinions & Orders of this Court Addressing Bulk Collection of Data under the Foreign Intelligence Surveillance Act, 957 F.3d 1344, 1357 (FISA Ct. Rev. 2020) (“Because the crux of the Movants’ claim to disclosure here lies within the Executive’s clear authority to determi......

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