1

Table of Contents
Page:
Table of Ci1:a.tions ...•.....•............•.......•........•..................•.•...•........•.•........•................ iii
JURISDICTIONAL STATEMENT .......................................................................... 1
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ............................. 1
INTR.ODUCTION ....................................................................................................•2
STATEMENT OF THE CASE ..••.••.•.••..•••...•.•.•••........•..•.•..•••.••.•••....••....•......•...........3
A. Early Judicial Access Litigation and the FISC's
Seminal 2007 Opinion .....•.•...•..•••.......................•.•....•.............•.....•••....•.......... 4
B. The First 2013 Case, Before Judge Saylor ...................................................... 7
C. The Second 2013 Case, Before Presiding Judge Collyer .............................. 10
D. The En Banc Proceeding and Certification to This Court ............................. 12
S'UMM.ARY OF THE ARGUME.NT ...................................................................... 13

ARGUME.NT .....................................................................................................•..... 14
I.

Movants Have Failed To Establish Article III Standing ............................... 14
A. Movants' Claim of a First Amendment Right of Access
to FISC Proceedings and Records Is Insubstantial ............................. 16
B. Movants' Demand that the FISC Release Classified
Information Based on Its Own Independent National
Security Judgments Is Completely Devoid of Merit.. ......................... 18

 11

II.

The FISC Lacks Statutory Subject-Matter Jurisdiction ................................22
A. The FISC Has Neither Inherent Power Nor Ancillary
Jwisdiction To Adjudicate This Action .............................................. 23
B. Congress Has Expressly Assigned Disputes over
Classification Determinations to the District Courts ..........................26

ill.

Even if This Court Finds that the FISC Has Jwisdiction,
This Court Should Adjudicate the Entire Matter and Hold
that Movants' Claim Lacks Merit...... ~···························································29

CONCLUSION ........................................................................................................ 30

CERTIFICAIB OF COMPLI.AN'CE ........................................................................ 31
CERTIFICAIB OF SERVICE ................................................................................ 32

 lll

Table of Citations
Cases:

Page:

In re Application o/New York Times Co. To Unseal Wiretap
& Search Wa"ant Materials, 577 F .3d 401 (2d Cir. 2009) .................................... 17
Astoria Fed. Savings&LoanAss'nv. Solimino, 501U.S.104(1991) ...................28
Bismullah v. Gates, 501F.3d178 (D.C. Cir. 2007) ................................................ 19
Chambers v. NASCO, Inc., 501 U.S. 32 (1991).......................................................24
Dep't ofthe Navy v. Egan, 484 U.S. 518 (1988) .............................................•...2, 21
Dhiab v. Trump, 852 F.3d 1087 (D.C. Cir. 2017) ................................................... 19
El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007).........................................21
Greenlaw v. United States, 554 U.S. 237 (2008) ...................................................22
Gunn v. Minton, 568 U.S. 251 (2013) .....................................................................22
Holy Land Found. for Relief& Dev. v. Ashcroft,
333 F.3d 156 (D.C. Cir. 2003) ................................................................................. 20

Jifry v. FAA, 370 F.3d 1174 (D.C. Cir. 2004) .........................................................20
Kokkonen v. Guardian Life Ins. Co. ofAm., 511 U.S. 375 (1994) ........•...........22, 25

Kontrick v. Ryan, 540 U.S. 443 (2004) .................................................... ~ ............... 22
Morley v. CIA, 508 F.3d 1108 (D.C. Cir. 2007) •............................•...........•...... 21, 27
In re Motion for Release of Court Records,
526 F. Supp. 2d 484 (FISA Ct. 2007) ........................... 4, 5, 6, 16, 17, 18, 21, 22, 23
In re Motion/or Consent to Disclosure of Court Records,
Misc. 13-01, 2013 WL 5460051 (FISA Ct. June 12, 2013) ...........•......·..................24

 iv

In re Motions ofDow Jones & Co., 142 F.3d 496 (D.C. Cir. 1998) ....................... 17
NCR! v. Dep 't ofState, 251 F .3d 192 (D.C. Cir. 2001 ) ..••.........•...........•...•...........•• 19
Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978) ................................23
Northrop Corp. v. McDonnell Douglas Corp.,
751 F .2d 395 (D.C. Cir. 1984) ·······································~··································· 19, 20

In re Orders o/This Court, Misc. 13-02,
2013 WL 5460064 (FISA Ct. Sept. 13, 2013) ...................•....................................... 8
In re Orders o/This Court, Misc. 13-02,
2014 WL 5442058 (FISA Ct. Aug. 7, 2014) ............................................................. 9
In re Opinions & Orders of This Court,
2017 WL 427591 (Jan. 25, 2017) ............................................................................ 12
In re Opinions & Orders o/This Court,
2017 WL 5983865 (FISA Ct. Nov. 9, 2017) .......................... 2, 3, 12, 13, 15, 18, 30
Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) ..........2, 5, 15, 16, 17, 18
Sinochem Int 'l v. Malaysia Int 'l Shipping, 549 U.S. 422 (2007) ............................22
Steel Co. v. Citizens/or a Better Env't, 523 U.S. 83 (1998) .............•.......2, 3, 15, 29
Times Mirror Co. v. United States, 873 F.2d 1210 (9th Cir. 1989)..................... 5, 17
United States v. Daoud, 761F.3d678 (7th Cir. 2014) ....•.......................................20
United States v. El-Sayegh, 131 F .3d 158 (D.C. Cir. 1997) .................................... 17
United States v. Mohamud, 2014 WL 2866749 (D. Or. June 24, 2014) .................20
United States v. Poindexter, 732 F. Supp. 165 (D.D.C. 1990) ................................20
United States v. Sedaghaty, 728 F .3d 885 (9th Cir. 2013) ......................................20

 v
United States v. Smith, 123 F.3d 140 (3d Cir. 1997) ............................................... 17
In re Washington Post, 807 F .2d 383 (4th Cir. 1986) ............................................. 17
Statutes:
5 U.S.C. § 552(a)(3) .................•....................................•.....•......•............................. 26

5 U.S.C. § 552(a)(4)(B) ......................................•....................................................26
5 u.s.c. § 552(b)(l)..................................................................................................27

so u.s.c. § 1803G) .............................................................................. 1, 3, 14, 22, 29
50 u.s.c. § 1804 .......·................•............. ~ .................................................................23
50 u .s.c. § 1806(±) ..................................................................................................27
50 u.s.c. § 1823 .....................••................ ~ .........................•....................................23
50 u.s.c. § 1842 ·············••'!••••··················································································23
50 u.s.c. § 1861 ..•.. ~ .................................................................................................23
50 u.s.c. § 1861(f) ..................................................................................................23
50U.S.C. § 1872 ......................................................................................................28
50 U.S.C. § 1881a .•..................•....•..................................•....................•...•.......•...... 23
50 u.s.c. § 1881 b ....................................................................................................23
50 U.S.C. § 1881c ...... ~······························································································23
50 u.s.c. § 1881d ......................................•.........·.•...........................•...................... 23

 VI

Other Authorities:
Exec. Order No. 13,526 § 1.l(a)(2), 3 C.F.R. 298 (2009) .......................................26
FISC Rule of Procedure 62(a)•.•........•.••....•.....•......•..•. ·-···········~······7, 8, 9, 10, 11, 29

 1
JURISDICTIONAL STATEMENT
On January 5, 2018, the Honorable Rosemary M. Collyer, Presiding Judge of
the Foreign Intelligence Surveillance Court ("FISC"), certified a question of law to
this Court pursuant to 50 U.S.C. § 1803(j). See Certification of Question of Law to
the Foreign Intelligence Surveillance Court of Review, Misc. 13-08 (Jan. 5, 2018).
The certified question is itself a question of subject-matter jurisdiction, and this
Court has jurisdiction to determine its own jurisdiction.

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
I.

Whether the American Civil Liberties Union ("ACLU"), the American

Civil Liberties Union of the Nation's Capital, and the Media Freedom and
Information Access Clinic (collectively, "movants") have adequately established
Article ill standing to assert their claim of a qualified First Amendment right of
public access to FISC judicial opinions.
II.

Whether, pursuant to its authority under 50 U.S.C. § 1803(j), this Court

should hold that the FISC lacks statutory subject-matter jurisdiction over this case.
ill.

Whether, pursuant to its authority under 50 U.S.C. § 1803(j), this Court

should order this action dismissed because there is no qualified First Amendment
right of access to FISC judicial opinions.

 2
INTRODUCTION
Movants request that FISC judges publicly disclose classified national
security information by making their own, independent national security
assessments of the information under a standard that is considerably less protective
of national security than the standard used by the Executive Branch. See Dep 't of
the Navy v. Egan, 484 U.S. 518, 527-29 (1988). Movants seek such reliefbased on

a claimed First Amendment right of public access to FISC proceedings that
historically, and by express congressional design, have been closed to the public.
See Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986). This legal claim is

clearly without merit.

Whether it is not just meritless, but "so insubstantial,

implausible, .. . or otherwise completely devoid of merit" that movants lack Article
ID standing, Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998), is a
question that can be likened, in the words of the FISC en bane majority, to
"distinguish[ing] a black cat in a coal cellar," In re Opinions & Orders ofThis Court,
2017 WL 5983865, at* 1 (FISA Ct. Nov. 9, 2017) (en bane).
Parsing this question, the court below split six to five over whether it saw a
feline among the anthracite.

The majority's holding that litigants establish an

Article III injury if they "allege an invasion related to judicial proceedings
[regardless of] how novel or meritless the claim may be," id at *6, is inconsistent

 3
with Steel Co. Under that Supreme Court decision, the fact that movants' legal
claim is completely devoid of merit is a bar to Article III standing. See id. at *20
(Collyer, P.J., dissenting) (concluding that because movants' claim is not grounded
in any actual source of law, movants fail to "present an injury to a protected legal
interest").

If this Court concludes that movants' claims are substantial enough to support
Article III standing, the government urges this Court to exercise its statutory power
to render a "decision of the entire matter in controversy," 50 U.S.C. § 18030), and
to find that the FISC lacks statutory subject-matter jurisdiction over this action and,
in any event, that movants' claim is meritless. This case has been pending for four
and a half years, and at least two other cases raising identical legal arguments, filed
in 2013 and 2016, are also pending in the FISC. The government, the movants, and
the FISC all have an interest in receiving an answer from this Court as to whether
these cases are properly before FISC in the first place and, if they are, whether they
have any legal merit.

STATEMENT OF THE CASE
The case currently before this Court is one of a series of cases dating back to
2007 in which movants have asserted a First Amendment right of access to FISC
proceedings and/or records.

 4

A.

Early Judicial Access Litigation and the FISC's Seminal 2007 Opinion
In 2007, the ACLU filed a motion with the FISC asserting a First Amendment

and common law right of access to that court's proceedings. See In re Motion for
Release of Court Records, 526 F. Supp. 2d 484, 485 (FISA Ct. 2007). The ACLU

argued that the FISC should order the government ''to perform a declassification
review of the [FISC's] records" and that the FISC should then "independently review
all classification determinations." Id. at 485-86. In addition to contesting the
ACLU's novel declassification theory on the merits, the government argued that the
motion was outside the specialized statutory subject-matter jurisdiction conferred on
the FISC by Congress. Id. at 486.
In a ruling that set the stage for future FISC litigation on this issue, the FISC
· rejected the government's contention that the motion was outside the FISC's subjectmatter jurisdiction and then rejected the ACLU's claims on the merits. In finding
jurisdiction, the FISC acknowledged that the ACLU's claim fell outside the
jurisdiction granted to the FISC by statute, but claimed for itself "inherent"
jurisdiction ''to adjudicate a claim of right to the [FISC's] very own records and
files." Id. at 486-87.
Reaching the merits, the FISC rejected the ACLU's claimed common law and
First Amendment rights of access to FISC records and files. The FISC found that

I
1 1

 5
the common law right of access "does not apply to documents 'which have
traditionally been [kept] secret for important policy reasons."' Id. at 490 (quoting
Times Mirror Co. v. United States, 873 F.2d 1210, 1219 (9th Cir. 1989)). The court

found that this reasoning clearly applied to FISC records because they ~e
"maintained under a comprehensive statutory scheme designed to protect FISC
records from routine public disclosure," demonstrating an ''unquestioned tradition
of secrecy, based on the vitally important need to protect national security." Id. at
490-91. The FISC observed that, under the law, "there is no role for [the FISC]
independently to review, and potentially override, Executive Branch classification
decisions."

Id. at 491.

Indeed, "if the FISC were to assume the role of

independently making declassification and release decisions in the probing manner
requested by the ACLU, there would be a real risk of harm to national security
interests and ultimately to the FISA process itself." Id.
Turning to the First Amendment claim, the FISC applied the two-part
framework set forth in Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986).
There, the Supreme Court held that, where a judicial proceeding "passes" both the
"logic" test and the "experience" test, "a qualified First Amendment right of public
access attaches." Id. at 8-9. The FISC found that neither test was met in the

 6
context of FISC proceedings and that either of these failures was a sufficient basis
to deny the ACLU's claim.
Regarding the experience test, the FISC held that ''the ACLU's First
Amendment claim runs counter to a long-established and virtually unbroken practice
of excluding the public from FISA applications and orders." 526 F. Supp. 2d
at 493. Applying the log_ic test, the FISC found that the "detrimental consequences"
that would follow from public access to FISC proceedings "would greatly outweigh
any" benefits of disclosure. Id. at 494. The FISC found that harms to national
security, such as assisting adversaries in avoiding surveillance, seriously harming
those targeted by surveillance, chilling cooperation, and damaging relations with
foreign governments, "are real and significant, and, quite frankly, beyond debate."
Id.

The FISC further found that applying the ACLU's proposed standard of

independent review of Executive Branch classification decisions could lead to errors
that would damage national security, while simultaneously threatening ''the free
flow of information to the FISC that is needed for an ex parte proceeding to result in
sound decisionmaking and effective oversight." Id. at 495-96.

 7

B.

The First 2013 Case, Before Judge Saylor
For nearly five years, no claims of this type were filed in the FISC. In 2013,

however, movants filed two new cases that led to inconsistent decisions by two
different FISC judges, leading to the en bane proceeding below.
In June 2013, movants filed a motion arguing that the First Amendment

"compels" the FISC to release certain legal opinions and citing FISC Rule of
Procedure 62(a). Motion, Misc. 13-02 (June 10, 2013). 1 That rule, added in its
current form in 2010, provides that "[t]he judge who authored an order, opinion, or
other decision may sua sponte or on motion by a party request that it be published,"
and "[u ]pon such request, the Presiding Judge, after consulting with the other Judges
of the Court, may direct that an order, opinion or other decision be published."
FISC R. of P. 62(a).
The government argued that the First Amendment claim was barred by the
holding in the FISC's 2007 opinion. Gov't Opp., Misc. 13-02 (July 5, 2013). 2
Regarding Rule 62, the government argued that movants had "no standing to bring

1

Available at www.fisc.uscourts.gov/sites/default/files/Misc%2013-02%20
Motion-1.pdf.
2

Available at www.fisc.uscourts.gov/sites/default/files!Misc%2013-02%20
Opposition.pdf.

 8

such a motion because [they were] not a party to any relevant opinion." Id. at 1;
see also id. at 12 (arguing that ''the Motion should be denied because only a party to

an underlying opinion may move the Court for publication").
The case was assigned to Judge Saylor, who issued an opinion for the FISC.
See In re Orders of This Court, Misc. 13-02, 2013 WL 5460064 (FISA Ct. Sept. 13,

2013). The opinion first addressed Article III standing to bring the action, an issue
that neither movants nor the government had briefed. Id. at *2-4. Focusing on
whether movants' claimed injury was "sufficiently concrete and particularized,"
Judge Saylor found that the ACLU's "active participation in the legislative and
public debates" regarding FISA was sufficient for it to have Article III standing. Id.
at *2, *4.3
Judge Saylor declined at that time to address the First Amendment claim,
finding that Rule 62(a) made such adjudication unnecessary. While Judge Saylor

3

In the same opinion, Judge Saylor found that a co-movant, a clinic at Yale
University, lacked standing because it had "submitted no information as to how the
release of the opinions would aid its activities" and Judge Saylor's "review of the
public record ha[d] not revealed any indication that [the clinic] ha[d] participated in
[relevant] public debate." Id. at *4 & n.13. The clinic subsequently filed a motion
for reconsideration, see www.fisc.uscourts.gov/sites/default/files/Misc% 201302o/o20Motion-5.pdf, which was granted after Judge Saylor concluded that the
clinic's submission "provide[d] information that remedies the deficiency."
www.fisc.uscourts.gov/sites/default/files/Misc%2013-02%200rder-6_ O.pdf.

 9
agreed with the government's position that "the term 'party' in Rule 62(a) refers to
a party to the proceeding that resulted in the [document] being considered for
publication," thus excluding movants from the rule's ambit, he nevertheless cited
Rule 62(a) as justification to give movants partial relief due to what he found to be
"extraordinary circumstances." Id. at *5. This led to further litigation that resulted
in the public disclosure of one earlier FISC opinion (of which Judge Saylor was not
the authoring judge), with classified material redacted. See In re Orders of This

Court, Misc. 13-02, 2014 WL 5442058 (FISA Ct. Aug. 7, 2014); see also
Submission of the United States, Misc. 13-02 {Aug. 27, 2014)4 (attaching redacted
opinion from February 19, 2013). In response to movants' claim that the FISC
should independently review the classified information for potential release, Judge
Saylor found that, even applying the standard advocated by movants, he would reach
the same conclusion as the government as to what material should be redacted. See
2014 WL 5442058, at *4. He thus found it unnecessary to rule on the merits of the
First Amendment claim, although he observed that "[t]here is substantial reason to
doubt" its merit. Id. at *4 n.10.

4

Available at www.fisc.uscourts.gov/sites/default/files/Misc%2013-02%20
Opinion-1.pdf.

 10

C.

The Second 2013 Case, Before Presiding Judge Collyer
Less than two months after Judge Saylor's September 2013 opinion, movants

filed another case, this time asking the FISC ''to unseal its opinions addressing the
legal basis for the 'bulk ~ollection' of data" by the government pursuant to FISA.
Motion, Misc. 13-08, at 1 (Nov. 6, 2013).5 Movants once again advanced a First
Amendment claim and cited Rule 62(a).

Movants argued that they stated a

constitutionally sufficient injury because "[d]enial of access to court opinions alone
constitutes an injury sufficient to satisfy Article ill." Id. at 10.
Movants asked the FISC to release information even if the government had
properly classified it, arguing that "executive-branch decisions cannot substitute for
the judicial determination" movants sought-a determination movants contended
should lead to the public release, by the FISC, of information the Executive has
determined to be classified. Id at 25. Movants sought to have the FISC make its
own release decisions, using a different, less protective standard than the
classification standard used by the Executive Branch. Id. at 22-23, 25-27.
In a short response, the government explained that all FISC opinions
addressing the legal basis for bulk collection of data had been publicly released with

s Available at www.fisc.uscourts.gov/sites/default/files/Misc%2013-08%20
Motion-2.pdf.

 11
only classified material redacted. Gov't Opp., Misc. 13-08, at 1-2 (Dec. 6, 2013).6
The government further argued that movants lacked standing to seek declassification
because "FISA does not provide third parties with the right to seek disclosure of
classified FISC records." Id. at 2. Moreover, the government explained that Rule
62(a) only provides parties to the underlying proceedings with a right to move for
publication. Id. at 3. Movants were "not a party to any of the proceedings that
generated the relevant opinions and, therefore, [they dol not have standing to move
for publication of the opinions." Id.
The case was assigned to Presiding Judge Collyer, who addressed for the first
time the question wheth~r, in the absence of any First Amendment or other right of
access to FISC opinions, movants can establish an injury to a legally protected
interest as is required by the injury prong of the Article III standing inquiry.
Surveying numerous
cases from the Supreme Court and circuit courts, Presiding
.

.

Judge Collyer observed that ''the Supreme Court and a majority of federal
jurisdictions have concluded that an interest is not 'legally protected' or cognizable
for the purpose of establishing standing when its asserted legal source-whether
constitutional, statutory, common law or otherwise----does not apply or does not

6

Available at www.fisc.uscourts.gov/sites/default/files/Misc%2013-08%20
Opposition-1 .pdf:

 I

12
exist." In re Opinions & Orders of This Court, 2017 WL 427591, at *8 (Jan. 25,
2017). As the FISC had previously held that there is no First Amendment right of
access to its proceedings, records, and rulings, and movants had identified no other
legal right to the classified material sought, movants could identify no injury to a
legally protected interest and thus lacked Article III standing. Id. at *9-15.

D.

The En Banc Proceeding and Certification to This Court
In light of inconsistency between the two Article III standing rulings, the

I
I

FISC, acting sua sponte, issued an order calling for en bane review. Order, Misc.
13-08, at 1 (Mar. 22, 2017). 7 The question before the en bane court was ''whether
Movants established Article III standing notwithstanding that a First Amendment
qualified right of access does not apply to the judicial opinions they seek." Id.
The six-judge en bane majority found that movants had established standing,
holding that to establish an injury to a legally-protected right, a plaintiff need only
"allege an invasion related to judicial proceedings [regardless of] how novel or
meritless the claim may be." 2017 WL 5983865, at *6. The en bane majority
found this bar cleared by movants' claim that they were injured by "lack of access
to the proceedings of a court." Id. at *8.

7

Available at www.fisc.uscourts.gov/sites/default/files/Misc%2013-08%20
Order.pdf.

 13
Writing for five judges, Presiding Judge Collyer disagreed that what movants
sought was properly characterized as '"access to judicial proceedings,' as the
Majority would have it." Id. at *9. Rather, the en bane dissent found thatthe actual
claim was a demand for classified information: "Movants want us to rufo that they
have a 'right' of access to the information classified by the Executive Branch and
that Executive Branch agencies must defend each redaction in the face ofMovants'
challenges.'' Id. Because this claim was not grounded in any source oflaw, the en
bane dissent would have held that movants failed to "present an injury to a protected
legal interest." Id. at *20.
Ten of the eleven FISC judges then voted to certify the question of movants'
standing to this Court.8
SUMMARY OF THE ARGUMENT
Contrary to the holding of the en bane majority, Article III does not grant
jurisdiction to adjudicate an insubstantial or implausible claim. Movants' First

8

Two additional actions based on the same First Amendment right-of-access
theory remain pending in the FISC. See Motion, Misc. 13-09 (Nov. 8, 2013)
(available at www.fisc.uscourts.gov/sites/default/files/Misc%2013-09%20Motion2.pdt); Motion, Misc. 16-01 (Oct. 18, 2016) (available at www.fisc.uscourts.gov/
sites/default/files/Misc%2016%2001 %20Motion%20ofl»/o20the%20ACLUo/o20for
%20the%20Release%20ofb/o20Court°/o20Records%20161019.pdt). The FISC has
not issued any substantive rulings in either of those cases.

 14
Amendment claim is constitutionally insubstantial both because application of
Supreme Court precedent demonstrates that there is no First Amendment right of
access to FISC proceedings and because, even where such a right exists, it does not
extend to classified information or empower a court to release information properly
classified by the Executive based on the court's own national security judgments.
In addition to this constitutional jurisdiction flaw, the FISC lacks statutory
subject-matter jurisdiction over this case. This case falls outside the classes of cases
assigned by statute to the FISC. The "inherent power" cited by movants does not
extend to the adjudication of a new case brought by a new party. And this case does
not fall within the narrow ancillary jurisdiction recognized by the Supreme Court.
Therefore, this Court should exercise its authority under 50 U.S.C. § 1803(j) to order
this case dismissed.
Finally, even if this Court finds that the FISC has constitutional and statutory
jurisdiction over this matter, this Court should render a "decision of the entire
matter," 50 U.S.C. § 1803(j), and hold that movants' claim lacks merit.

ARGUMENT
I.

Movants Have Failed To Establish Article III Standing
Contrary to the en bane majority's holding that a litigant can establish standing

by any claim of right, no matter how "novel or meritless the claim may be," 2017

 I

15
WL 5983865, at *6, the Supreme Court has explained that a court properly dismisses
a claim for want of jurisdiction if the claim is "so insubstantial, implausible,
foreclosed by prior decisions of this Court, or otherwise completely devoid of merit
as not to involve a federal controversy." Steel Co. v. Citizens for a Better Env't,
523 U.S. 83, 89 (1998); see also id. at 97 n.2 (indicating that ''the Article III

l
I
I
J

requirement of remediable injury in fact" can depend on the underlying merits in the
context of "entirely frivolous claims").

Thus, in the context of "Article ill

standing," Supreme Court "cases make clear that frivolous claims are themselves a
jurisdictional defect." Id. at 108 n.9.
The claim asserted by movants here, which the en bane dissent correctly
describes as a claimed First Amendment " 'right' of access to the information
classified by the Executive Branch," 2017 WL 5983865, at *9, is constitutionally
insubstantial for two independent reasons.

First, application of the Press-

Enterprise framework, which movants agree is the applicable test, makes clear that
there is no First Amendment right of access to the FISC's proceedings. Second,
movants' demand that the FISC undertake an independent review of classified
information based on its own analysis of national security needs is not based in any
source of law and fundamentally misunderstands the respective roles of the
Executive and judicial branches in our constitutional system. ·

 16

A.

Movants' Claim of a First Amendment Right of Access to FISC
Proceedings and Records Is Insubstantial

As movants concede, see Motion 12, the First Amendment right of access to
judicial proceedings applies only to proceedings that satisfy both the "experience"
and "logic" tests set forth by the Supreme Court. Press-Enterprise, 478 U.S. at 89. The FISC 's unique and sensitive national security proceedings do not remotely
satisfy either test.
The experience test asks "whether the place and process have historically been
open to the press and general public." Press-Enterprise, 478 U.S. at 8. There is
no serious argument that either the place-the FISC--or the process-proceedings
that relate to applications made by the Executive Branch for the issuance of court
orders approving foreign intelligence authorities-has been subject to a tradition or
history of public access. See, e.g., In re Motion for Release, 526 F. Supp. 2d at 493
(finding that "the FISC is not a court whose place or process has historically been
open to the public").
Unable to dispute the FISC's long history as a non-public forum, movants
sought to reframe the question as one about "judicial rulings and opinions
interpreting the Constitution and the laws." Motion 13. But this is an obvious
misframing of the issue, as rulings interpreting law constitute neither a "place" nor.

 17
a "process." Press-Enterprise, 478 U.S. at 8. Properly applied, the experience test
examines "a particular kind of hearing," In re Washington Post, 807 F.2d 383, 389
(4th Cir. 1986), such as, for example, district court proceedings ancillary to grand
jury operations. See In re Motions ofDow Jones & Co., 142 F .3d 496, 502-03 (D.C.
Cir. 1998); United States v. Smith, 123 F.3d 140, 148-50 (3d Cir. 1997).9 With this
understanding, there is no substantial argument that the FISC or the foreign

I

intelligence authorization proceedings it conducts have "have historically been open
to the press and general public." Press-Enterprise, 478 U.S. at 8.

I

I
I
I

There is similarly no substantial argument that it is logical to open up the
FISC's proceedings to public view.

The FISC's "entire docket relates to the

collection of foreign intelligence by the federal government." In re Motion for

Release, 526 F. Supp. 2d at 487. Its operations are governed "by FISA, by Court
rule, and by statutorily mandated security procedures issued by the Chief Justice of

I

I
l
I
I

the United States," which together "represent a comprehensive scheme for the
safeguarding and handling of FISC proceedings and records." Id. at 488. The

9

See also In re Application of New York Times Co. To Unseal Wiretap &
Search Warrant Materials, 577 F.3d 401, 410-11 (2d Cir. 2009) (no right of access
to sealed wiretap applications); United States v. El-Sayegh, 131 F.3d 158, 160-61
(D.C. Cir. 1997) (no First Amendment right of access to unconsummated plea
agreements); Times Mi"or Co. v. United States, 873 F.2d 1210, 1213-14 (9th Cir.
1989) (no history of public access to searc~ warrant proceedings and materials).

 18
FISC has thus correctly found that ''the detrimental consequences of broad public
access to FISC proceedings or records would greatly outweigh any" benefits, and
.

.

that these harms "are real and significant, and, quite frankly, beyond debate." Id at
494 (emphasis added). In short, given the national security sensitivities attendant
to foreign intelligence collection, FISC proceedings "would be totally frustrated if
conducted openly." Press-Enterprise, 478 U.S. at 8-9.

B.

Mova.n ts' Demand that the FISC Release Classified Information
Based on Its Own Independent National Security Judgments Is
Completely Devoid of Merit

Movants' claim is more than an ordinary demand for access to judicial
proceedings. They do not seek access to ongoing or recent judicial proceedings,
and their motion does not identify any particular FISC proceeding.

Rather,

movants' claim is a broad records request seeking classified information. Movants
demand access to information even if the government has properly classified it. See
Motion25; 2017 WL 5983865, at *9 (Collyer, P.J., dissenting) ("Movants want [a
court ruling] that they have a 'right' of access to the· information classified by the
Executive Branch."). And they seek to enlist the FISC in an independent review of
classified national security information, followed by release of information by the
FISC, based on the FISC's supposed authority to override (or ignore) the
government's classification d~cisions. Motion 22, 25.

 19
This demand for classified information is completely devoid of merit. Even
where the First Amendment right of access to judicial proceedings applies, that right
does not include access to national security information that has been classified by
the Executive Branch. And it certainly does not involve a court usurping the
Executive's constitutional function by conducting an independent review of national
security interests and making its own disclosure decisions.
Classification of national security information "is within the privilege and
prerogative ofthe executive," and there is no right ''to compel a breach in the security
which that branch is charged to protect." NCR! v. Dep't of State, 251 F.3d 192,
208-09 (D.C. Cir. 2001 ). Indeed, "from the beginning of the republic to the present
day, there is no tradition of publicizing secret national security information in civil
cases, or for that matter, in criminal cases," as the ''tradition is exactly the opposite."

Dhiab v. Trump, 852 F.3d 1087, 1094 (D.C. Cir. 2017) (op. of Randolph, S.J.).
Courts routinely provide for classified material to be withheld from the public
without conducting an independent review of national security needs or of the public
interest in release. E.g., Bismullah v. Gates, 501 F .3d 178, 194-204 (D.C. Cir.
2007) (providing for non-public filing of classified information through the Court
Security Officer and prohibiting disclosure of classified information to unauthorized
person), vacated on other grounds, 554 U.S. 913 (2008); Northrop Corp. v.

 20
McDonnell Douglas Corp., 751 F.2d 395, 401 (D.C. Cir. 1984) (entering protective

order sealing classified information); United States v. Poindexter, 732 F. Supp. 165,
167 (D.D.C. 1990) (holding that the right of access does not extend to classified
proceedings in a criminal case). Sometimes the contents of classified proceedings
and filings are withheld even from the opposing party.

E.g., United States v.

Da01"1, 761 F.3d 678 (7th Cir. 2014) (reversing district court order requiring

disclosure of classified material to defense counsel); United States v. Sedaghaty, 728
F.3d 885, 908 (9th Cir. 2013); Jifry v. FAA, 370 F.3d 1174, 1182 (D.C. Cir. 2004);
Holy Land Found.for Relief& Dev. v. Ashcroft, 333 F.3d 156, 164 (D.C. Cir. 2003).

When court opinions contain classified information, that information is redacted
from any public release, or the opinion is withheld in full. E.g., Daoud, 761 F .3d at
678 (redacted opinion); Sedaghaty, 728 F.3d at 891 (''we are filing concurrently,
under appropriate seal, a classified opinion"); United States v. Mohamud, 2014 WL
2866749, at *2 (D. Or. June 24, 2014) ("I am also filing an accompanying classified
opinion to explain some of my reasoning."), affd, 843 F.3d 420 (9th Cir. 2016).
Thus, even where a First Amendment right of access applies, it does not provide
access to classified national security information.
Additionally, movants' contention that the FISC should make independent
assessments about national security needs and interests contravenes the

 21
constitutional allocation of national security powers. While a court may, in the
proper context (which does not include this one), review Executive Branch
assertions that material has been properly classified, it may not make independent
national security assessments; rather, it must defer to the Executive Branch's
national security judgments so long as the government's assertions are "plausible."
Morley v. CIA, 508 F.3d 1108, 1124 (D.C. Cir. 2007). This is because the powers

''to classify and control access to information bearing on national security" are
constitutionally committed to the Executive Branch, necessarily granting the
Executive "broad discretion to determine who may have access" to national security
information. Dep't ofthe Navy v. Egan, 484 U.S. 518, 527, 529 (1988).
The Constitution assigns responsibility for classifying and controlling access
to national security information to the Executive rather than the judiciary because
only the former has the expertise and resources to make the necessary national
security determinations. Id. at 529 (holding that predictive judgments related to
national security risks "must be made by those with the necessary expertise in
protecting classified information"); El-Masri v. United States, 479 F.3d 296, 305
(4th Cir. 2007) (observing that ''the Executive and the intelligence agencies under
his control occupy a position superior to that of the courts in evaluating the
consequences of a release of sensitive information"); In re Motion for Release, 526

 22
F. Supp. 2d at 495 n.31 (finding that FISC judges cannot "equal [the expertise] of
the Executive Branch"). Movants' attempt to upset this constitutional balance is
completely devoid of merit.

II.

The FISC Lacks Statutory Subject-Matter Jurisdiction
4

In addition to the lack of Article ID jurisdiction, the FISC also lacks statutory
subject-matter jurisdiction over this matter-another threshold issue that the Court
should address pursuant to its authority under 18 U.S.C. § 18030). 10 As the
Supreme Court has repeatedly observed, "'[o]nly Congress may determine a lower
federal court's subject-matter jurisdiction."' Greenlaw v. United States, 554 U.S.
237, 257-58 (2008) (quoting Kontrick v. Ryan, 540 U.S. 443, 452 (2004)). The
category of cases assigned to a particular court "is not to be expanded by judicial
decree." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994);

accord Gunn v. Minton, 568 U.S. 251, 256-58 (2013). And it "is to be presumed
that a cause lies outside this limited jurisdiction." Kokkonen, 511 U.S. at 377.
The FISC's statutory subject-matter jurisdiction is limited to certain
applications and certifications .that may be filed by the government, see 50 U.S.C.

10

This Court may address jurisdictional issues in any order and thus may rule
on statutory subject-matter jurisdiction without first addressing Article III standing.
See Sinochem Int'/ v. Malaysia Int'/ Shipping, 549 U.S. 422, 431 (2007).

 23
§§ 1804, 1823, 1842, 1861, 188lb, 188lc, 188ld, and certain petitions that a
recipient of FISA process may file, see 50 U.S.C. §§ 1861(f), 188la.

It is

undisputed that the FISC's statutory subject-matter jurisdiction cannot be invoked
by parties such as. movants who do not claim to have received FISA process.
Movants instead rely on the FISC's 2007 decision that it had inherent '"jurisdiction
in the first instance to adjudicate a claim of right to the court's very own records and
files.'" Motion 9 (quoting In re Motion for Release, 526 F. Supp. 2d at 487).
That holding is erroneous. The FISC's 2007 ruling conflates the concepts of
inherent power and ancillary jurisdiction. Inherent power permits a court to take
certain necessary actions in conjunction with cases that are before the court; it is not
the power to adjudicate a new case or controversy that is not within the court's
statutory jurisdiction. Ancillary jurisdiction permits a court to adjudicate certain
disputes, but ancillary jurisdiction is a strictly limited concept that does not apply
here.

A.

The FISC Has Neither Inherent Power Nor Ancillary Jurisdiction
To Adjudicate This Action

The FISC based its assumption of jurisdiction on inherent power cases such
as Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978), where the Supreme
Court held that a district court has an inherent power to deny public access to records

 24
in its cases that would otherwise be public. See id. at 598. Movants also cite
Chambers v. NASCO, Inc., 501 U.S. 32 (1991), where the Court held that a district

court has an inherent power to sanction parties in cases before it. See id: at 44. As
these cases indicate, inherent powers are· powers a court has to manage the cases
before it, not powers to assume and adjudicate new cases.
The present action is not a motion filed within a preexisting case nor one filed

l

by a party to a relevant preexisting case. And while it is styled as a motion "to
unseal," Motion 1, none of the opinions at issue has ever been under court seal.
See In re Motion for Consent to Disclosure ofCourt Records, Misc. 13-01, 2013 WL

5460051, at *3-4 (FISA Ct. June 12, 2013). Rather, the relevant opinions· were
unavailable to the public, and portions remain unavailable to the public, solely
because of· government classification decisions made ''to safeguard sensitive
national security information." Id. The instant case is thus a broad records request
that challenges the government's authority to protect national security information
in multiple, separate FISC opinions issued in different proceedings. As such, it is
an independent action requiring its own basis for subject-matter jurisdiction.
Rather than inherent power, which relates to the power to take certain actions
within cases already before the court, the applicable doctrine for determining
whether a court may adjudicate a new case or controversy that is not within its

 25
explicitly enumerated statutory subject-matter jurisdiction is the doctrine of ancillary
jurisdiction. But that doctrine does not apply here. Ancillary jurisdiction is a
narrow doctrine that exists only "( 1) to permit disposition by a single court of claims
that are, in varying respects and degrees, factually interdependent" or "(2) to enable
a court to function successfully, that is, to manage its proceedings, vindicate its
authority, and effectuate its decrees." Kokkonen, 511 U.S. at 379-80.
The case here is not at all factually interdependent with the FISC's earlier
cases considering whether FISA process should be authorized. It is not apparent
that any fact-finding at all is necessary in this action, and any such fact-finding would
not be the type the FISC ordinarily engages in, such as determining whether there is
probable cause to believe a target is an agent of a foreign power or a facility is used
by a target. Nor is the adjudication of this case or similar cases necessary for the
proper functioning of the FISC or the effectuation of its orders. To the contrary, the
adjudication sought here "is quite remote from what [the FISC] require[s] in order
to perform [its] functions." Id. at 380.
Because "[t]he facts to be determined," if any, in this action "are quite separate
from the facts" determined in earlier FISC proceedings, and adjudication of
movants' claims "is in no way essential to the conduct of [the FISC's] business,"
ancillary jurisdiction does not lie. Id. at 381.

 26
B.

Congress Has Expressly Assigned Disputes over Classification
Determinations to the District Courts

Congress's decision not to assign to the FISC the type of records access
litigation at issue here is clear from the text of FISA. Congress has explicitly
assigned such cases to the district courts.
Classified national security information, such as that sought in this case, is
information that "is owned by, produced by, or [under] the control of the United
States Government." Exec. Order No. 13,526 § l.l(a)(2), 3 C.F.R. 298 (2009).
Congress has provided a process for seeking such records-a request under the
Freedom of Information Act ("FOIA") to the agency having custody of the material
sought (here, the Department of Justice, which possesses unredacted and classified
FISC orders and opinions). 5 U.S.C. § 552(a)(3).
If the FOIA requester does not receive the material it seeks, it may file a

complaint in ''the district court of the United States in the district in which the
complainant resides, or has his principal place of business, or in which the agency
records are situated, or in the District of Columbia."

5 U.S.C. § 552(a)(4)(B).

That district court is granted subject-matter jurisdiction ''to enjoin the agency from
withholding agency records and to order the production of any agency records
improperly withheld from the complainant." Id. Where the government declines

 27
to release records or portions of records on the grounds that they are "properly
classified" and withheld "in the interest of national defense or foreign policy,"
5 U.S.C. § 552(b)(l), the dispute is resolved by the district court applying an

established and appropriate standard of review that recognizes the Executive
Branch's constitutional authority with respect to the protection of national security
information. II E.g., Morley, 508 F.3d at 1124.
Congress's assignment of such disputes to the district courts and not to the
FISC flows naturally from the respective nature of the courts. District courts are
broadly open to litigants bringing cases based on federal law.

The FISC, by

contrast, is a specialized court with a crucial but statutorily limited focus. Congress
has assigned to the FISC only matters that involve the government seeking
authorization to use foreign intelligence collection tools set forth in FISA and
challenges to FISA-authorized process brought by recipients of that process. I 2

Movants may argue that a statutory FOIA cause of action is different from
a First Amendment claim. But the fact that movants have concocted a legal
argument that Congress did not specifically anticipate does not alter the evident fact
that Congress intended for disputes over access to classified information to be
adjudicated by the district courts and not by the FISC. Movants are free to assert
their First Amendment argument in district court, for example by arguing that the
First Amendment requires a particular standard of review in deciding whether the
government's national security classification determinations should be sustained.
II

I2

Even targets ofFISA-authorized surveillance can challenge that
surveillance only in district court. See 50 U.S.C. § 1806{t).

 28
There is no basis to infer that Congress intended that the FISC's jurisdiction be
broadened to allow third parties to interject themselves into the FISC's highly
sensitive, non-public proceedings, let alone the type of clear statement that would be
expected if Congress intended such an expansion of the FISC's jurisdiction. 13

Cf Astoria Fed. Savings & Loan Ass 'n v. Solimino, 501 U.S. 104, 109 (1991) ("In
traditionally sensitive areas, ·... the requirement of a clear statement assures that the
legislature has in fact faced, and intended to bring into issue, the critical matters
involved in the judicial decision.") (quotation marks omitted).
Disputes over access to national security information that has been classified
by the Executive.have been assigned to the district courts, and not to the FISC. The
FISC thus lacks subject-matter jurisdiction over this case.

13

To the extent Congress has mandated transparency regarding FISC
opinions, it has directed that the government, not the FISC, redact and release
opinions, and it has not created a cause of action beyond that provided by FOIA.
See 50 U.S.C. § 1872.

 29
III.

Even if This Court Finds that the FISC Has Jurisdiction, This Court
Should Adjudicate the Entire Matter and Hold that Movants' Claim
Lacks Merit
Movants may argue that the government is conflating Article III standing with

the merits. As explained above, in the case of an insubstantial or implausible claim,

Steel Co. mandates dismissal on jurisdictional, rather than merits, grounds. But
even if this Court finds that the FISC has both Article III jurisdiction and statutory
jurisdiction to address movants' underlying claim, that legal claim fails on the
merits. See supra Part I. Because the standing and merits issues here present
interrelated questions of law, and no further development of the record is needed,
this Court is well-positioned, pursuant to its authority under 50 U.S.C. § 18030), to
provide needed finality by adjudicating the merits of movants' claimed right of
access in the event that this Court finds that the FISC has jurisdiction.
Finally, to the extent that movants advance a separate "claim" pursuant to
FISC Rule 62, that claim is without merit and should be dismissed. By its plain
terms, Rule 62 can only be invoked by a party to an·underlying case or by a judge
presiding in such a case. It thus provides movants with no cause of action and no
right to any relief.

 30

CONCLUSION
As the en bane dissent accurately observed, there is "no basis in law for the
FISC to expand its jurisdiction contrary to Supreme Court guidance, statutory
provisions that limit its jurisdiction to a specialized area of national concern, and the
. .

evident congressional mandate that the [FISC] conduct its proceedings ex parte and
in accord with prescribed security procedures." 2017 WL 5983865, at *21. The
claim that movants advance is both jurisdictionally deficient and lacking in merit.
This Court should order this case dismissed.
Respectfully submitted,
JOHN C. DEMERS
Assistant Attorney General
for National Security

J. BRADFORD WIEGMANN
STUART J. EVANS
Deputy Assistant Attorneys General
Jeffrey M Smith
JEFFREY M. SMITH
National Security Division
U.S. Department of Justice
950 Pennsylvania Ave, NW
Room 6500
Washington, DC 20530
Telephone: (202) 532-0220
Jeffrey.Smith5@usdoj.gov

 31

CERTIFICATE OF COMPLIANCE
This brief complies with the length requirement set forth in the Court's
January 9, 2018 Order as the brief is 30 pages long.
This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)
and the type style requirements for Fed. R. App. P. 32(a)(6) because this brief has
been prepared in a proportionally-based typeface using Microsoft Word, 14-point
Times New Roman.

I.
I

Isl Jeffrey M. Smith
Jeffrey M. Smith

 32

CERTIFICATE OF SERVICE
I hereby certify that the foregoing Opening Brief for the United States was
mailed via Federal Express this 23rd day of February, 2018 to counsel of record
listed below, and that, on the same day, the foregoing brief was electronically mailed
to ptoomey@aclu.org, bkaufman@aclu.org, and lkdonohue@georgetown.edu.
Patrick Toomey
ACLU Foundation
125 Broad St., 18th Floor
New York, NY 10004
Arthur B. Spitzer
ACLU Foundation ofD.C.
4301 Connecticut Ave., N.W.
Suite 434
Washington, DC 20008

Professor Laura K. Donohue
Georgetown University Law Center
McDonough 504
600 New Jersey Avenue, N.W.
Washington, DC 20001

Designated Amicus Curiae

David A. Schulz
Media Freedom & Information Access Clinic
Yale Law School
P.O. Box 208215
New Haven, CT 06520

Counsel for Movants
Isl Jeffra M Smith
Jeffrey M. Smith