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United StltH Foreign lntelllgence
Su~illance Court of Review

FEB 2 3 2018
Docket No. 18-01

l~Ann Flynn HaU, Clerk of Court

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tHnittb &tattj jforeign lJnttlligenct
6urbtillanct Court of l\tbitiu
Washington, D.C.
IN RE: CERTIFICATION OF QUESTIONS OF LAW TO THE FOREIGN INTELLIGENCE
SURVEILLANCE COURT OF REVIEW

Upon Certification for Review by the
United States Foreign Intelligence Surveillance Court

MOVANTS' OPENING BRIEF
David A. Schulz
Hannah Bloch-Wehba
John Langford
MEDIA FREEDOM & INFORMATION

Patrick Toomey
Brett Max Kaufman

ACCESS CLINIC
ABRAMS INSTITUTE

125 Broad Street, 18th Floor
New York, NY 10004
Phone: (212) 549-2500
Fax: (212) 549-2654
ptoomey@aclu.org

Yale Law School
P.O. Box 208215
New Haven, CT 06520
Phone: (203) 436-5827
Fax: (203) 432-3034
david.schulz@ylsclinics.org
Alex Abdo
Jameel Jaffer
KNIGHT FIRST AMENDMENT INSTITUTE
AT COLUMBIA UNIVERSITY

4 75 Riverside Drive, Suite 302
New York, NY 10115
Phone: (646) 745-8500
alex.abdo@knightcolumbia.org

AMERICAN CIVIL LIBERTIES UNION
FOUNDATION

Arthur B. Spitzer
Scott Michelman
AMERICAN CIVIL LIBERTIES UNION
OF THE DISTRICT OF COLUMBIA

915 15th Street, N.W., 2nd floor
Washington, D.C. 20005
Phone:(202)457-0800
Fax: (202) 457-0805
aspitzer@acludc.org
Counsel for Movants'

· Bar membership information for counsel is provided in the attached Certification
of Bar Membership and Security Clearance Status.

 CORPORATE DISCLOSURE STATEMENT
The American Civil Liberties Union and the American Civil Liberties Union
of the District of Columbia are non-profit corporations. They have no parent
corporations and do not issue stock. The Media Freedom and Information Access
Clinic is an organization within Yale University, which is a non-profit corporation
and does not issue stock. Movants do not have parent corporations or owners that
are under foreign ownership, control, or influence, as defined in Intelligence
Community Standard 700-01 .

 TABLE OF CONTENTS
JURISDICTIONAL STATEMENT .......................................................................... 1
STATEMENT OF THE ISSUE PRESENTED FOR REVIEW ............................... 1
PRELIMINARY STATEMENT ............................................................................... 1
STATEMENT OF THE CASE .................................................................................. 2
SlJMMARY OF THE ARGUMENT ........................................................................ 9
ARGUMENT ............................................................................................................. 10
I.

MOVANTS HAVE IDENTIFIED AN INJURY IN FACT
SUFFICIENT TO ESTABLISH ARTICLE III STANDING ......................... 11

II.

NOTHING ABOUT THE FOUR OPINIONS SOUGHT BY
MOVANTS ALTERS THE STANDING ANALYSIS . ................................. 23
A. Partial disclosure of the opinions at issue does not alter the
standing analysis ......................................................................................... 23
B. The existence of classified information in undisclosed portions
of the opinions does not strip Movants of standing to raise their
right-of-access claim .................................................................................. 25

CONCLUSION ................ .......... ......... ........... ... .. ....................................................... 29
CERTIFICATE OF CO:M.PLIANCE ............... .... ...................................................... 31
CERTIFICATION OF BAR MEMBERSHIP AND SECURITY
CLEARANCE STATUS ...................................................................................... 32

11

 TABLE OF AUTHORITIES
Cases

[Redacted],
No. PRJTI [Redacted] (FISC released Nov. 18, 2013) ............................... 4, 5, 6
Allen v. Wright,
468 U.S. 737 (1984) ............... .............................................................................. 23
Already, LLC v. Nike, Inc.,
568 U.S. 85 (2013) ............................................................................................... 24
Arreola v. Godinez,
546 F.3d 788 (7th Cir. 2008) ................................................................................ 19
Austin v. Mich. Chamber of Commerce,
494 U.S. 652 (1990) ............................................................................................. 21
Bait. Sun Co. v. Goetz,
886 F .2d 60 (4th Cir. 1989) .................................................................................. 27
Bennett v. Spear,
520 U.S. 154 (1997) ............................................................................................. 18
Bond v. Utreras,
585 F.3d 1061 (7th Cir. 2009) .............................................................................. 14
Bowers v. Hardwick,
478 U.S. 186 (1986) ............................................................................................. 22
Brown v. Bd. of Educ.,
349 U.S. 294 (1955) ............................................................................................. 22
Buckley v. Valeo,
424 U.S. 1 (1976) ................................................................................................. 22
Cal. First Amendment Coal. v. Calderon,
150 F .3d 976 (9th Cir. 1998) ................................................................................ 18
Carlson v. United States,
837 F.3d 753 (7th Cir. 2016) ........................................................................ passim

111

 Chafin v. Chafin,
568 U.S. 165 (2013) ............................................................................................. 24
Church ofScientology of Cal. v. United States,
506 U.S. 9 (1992) ................................................................................................. 24
Citizens United v. FEC,
558 U.S. 310 (2010) ............................................................................................. 21
Clapper v. Amnesty Int'/ USA,
568 U.S. 398 (2013) ...................................................................................... 28, 29
Courthouse News Serv. v. Planet,
750 F.3d 776 (9th Cir. 2014) ................................................................................ 13
Dhiab v. Trump,
852 F.3d 1087 (D.C. Cir. 2017) ..................................................................... 14, 15
District of Columbia v. Heller,
554 U.S. 570 (2008) ............................................................................................. 21
Doe v. Pub. Citizen,
749 F.3d 246 (4th Cir. 2014) ............................................................. 13, 15, 21, 26
El Vocero de P.R. v. Puerto Rico,
508 U.S. 147 (1993) ............................................................................................. 26
FEC v. Akins,
524 U.S. 11 (1998) ............................................................................................... 17
Flynt v. Rumsfeld,
355 F.3d 697 (D.C. Cir. 2004) ....................................................................... 18, 22
Gannett Co. v. DePasquale,
443 U.S. 368 (1979) ............................................................................................. 12
Hartford Courant Co. v. Pellegrino,
380 F.3d 83 (2d Cir. 2004) ................................................................................... 26
Havens Realty Corp. v. Coleman,
455 U.S. 363 (1982) ............................................................................................. 17

IV

 In re Application of the FBI for an Order Requiring the Production of
Tangible Things from [Redacted], No. BR 13-109 (FISC Aug. 29, 2013) ............ 4
In re Bos. Herald, Inc.,
321F.3d174 (1st Cir. 2003) ................................................................................ 13
In re Motion for Release of Court Records,
526 F. Supp. 2d 484 (FISC 2007) ............................................................. 7, 16, 28
In re NY. Times Co. Application to Unseal Wiretap,
577 F.3d 401 (2d Cir. 2009) .......................................................................... 16, 27
In re Opinions & Orders of this Court Addressing Bulk Collection of Data
Under FISA, No. Misc. 13-08, 2017 WL 427591 (FISC Jan. 25, 2017) ............... 7
In re Orders of this Court Interpreting Section 215 of the PATRJOT Act,
No. Misc. 13-02, 2013 WL
5460064 (FISC Sept. 13, 2013) ................................................................. 7, 16, 21
In re Proceedings Required by 702(i) ofFISA Amendments Act of 2008,
No. Misc. 08-01, 2008 WL 9487946 (FISC Aug. 27, 2008) .................... 7, 16, 28
In re Search ofFair Fin.,
692 F.3d 424 (6th Cir. 2012) ......................................................................... 14, 27
In re Search Warrant for Secretarial Area Outside Office of Gunn,
855 F .2d 569 (8th Cir. 1988) ................................................................................ 14
In re Wash. Post Co.,
807F.2d383 (4thCir.1986) ......................................................................... 13,27
Initiative & Referendum Inst. v. Walker,
450 F.3d 1082 (10th Cir. 2006) .................................................................... passim
Jewel v. NSA,
673 F.3d 902, 913 (9th Cir. 2011) ........................................................................ 28
Judicial Watch, Inc. v. US. Senate,
432 F.3d 359 (D.C. Cir. 2005) .............................................................................. 19
King v. Governor of New Jersey,
767 F.3d 216 (3d Cir. 2014) ................................................................................. 16

v

 Knox v. Serv. Emps.,
567 U.S. 298 (2012) ............................................................................................. 24
Lawrence v. Texas,
539 U.S. 558 (2003) ............................................................................................. 2'
Lexmarklnt'l, Inc. v. Static Control Components,
134 S. Ct. 1377 (2014) .......................................................................................... 21
Lucas v. S. C. Coastal Council,
505 U.S. 1003 (1992) ........................................................................................... 2'
Lugosch v. Pyramid Co. of Onondaga,
435 F.3d 110 (2d Cir. 2006) .......................................................................... 13, 26
Lujan v. Deft. of Wildlife,
504 U.S. 555 (1992) ............................................................................................. 10
NY Civil Liberties Union v. NYC. Transit Auth.,
684 F.3d 286 (2d Cir. 2011) .......................................................................... 17, 18
Newman v: Graddick,
696 F.2d 796 (11th Cir. 1983) .............................................................................. 13
Newsday LLC v. Cty. ofNassau,
730 F.3d 157 (2d Cir. 2013) ................................................................................. 23
Nixon v. Warner Commc'ns, Inc.,
435 U.S. 589 (1978) ............................................................................................. 13
Obergefell v. Hodges,
135 S. Ct. 2584 (2015) .......................................................................................... 21
Pansy v. Borough ofStroudsburg,
23 F.3d 772 (3d Cir. 1994) ............................................................................ 13, 15
Pell v. Procunier,
417 U.S. 817 (1974) ............................................................................................. 17
Plessy v. Ferguson,
163 U.S. 537 (1896) ............................................................................................. 22

Vl

 Press-Enter. Co. v. Superior Court,
464 U.S. 501 (1984) ............................................................................................. 12
Press-Enter. Co. v. Superior Court,
478U.S. l (1986) .................................................................................... 11,26,27
Pub. Citizen v. US. Dep 't ofJustice,
491U.S.440 (1989) ............................................................................................. 17
Raines v. Byrd,
521 U.S. 811 (1997) ................................................................................ 10, 28, 29
Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555 (1980) ............................................................................................. 12
Rushford v. New Yorker Magazine, Inc.,
846 F .2d 249 (4th Cir. 1988) ................................................................................ 26
Saxbe v. Wash. Post Co.,
417 u. s. 84 3 ( 1974) ............................................................................................. 17
Schuchardt v. President of the United States,
839 F.3d 336 (3d Cir. 2016) ................................................................................. 28
United States v. Cianfrani,
573 F.2d 835 (3d Cir. 1978) ................................................................................. 13
United States v. Edwards,
823F.2d111 (5th Cir. 1987) ............................................................................... .14
United States v. Gonzales,
150 F.3d 1246 (10th Cir. 1998) ............................................................................ 14
United States v. Miller,
307 U.S. 174 (1939) ............................................................................................. 21
United States v. Nat'l Treasury Emps. Union,
513 U.S. 454 (1995) ............................................................................................. 21
United States v. Ochoa-Vasquez,
428 F.3d 1015 (11th Cir. 2005) ............................................................................ 26

Vll

 Warth v. Seldin,
422 U.S. 490 (1975) ...................................................................................... 10, 18

Rules

FISC R.P. 62 ................................................................................................... 3, 4, 21

Statutes

50 U.S.C. § 18030) .................................................................................................... 9
50 u.s.c. § 1842 ........................................................................................................ 4
50 U.S.C. § 1861 ........................................................................................................ 4
PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 272 (2001) ........................................ 3

Other Authorities

Charlie Savage, In Test Project, NS.A. Tracked Cellphone Locations, N.Y.
Times, Oct. 2, 2013, http://nyti.ms/180Alz2 ........................................................ .3
Ellen Nakashima & Greg Miller, Official Releases What Appears To Be
Original Court File Authorizing NSA To Conduct Sweeps, Wash. Post,
Nov. 18, 2013, http://www.wapo.st/IGqxNK ........................................................ 6
James R. Clapper, Dir. ofNat'l Intelligence, Cover Letter Announcing
Document Release (Aug. 21, 2013), http://l.usa.gov/1 bU8Cgt ............................ 3

Vlll

 JURISDICTIONAL STATEMENT
This Court has jurisdiction to review questions of law certified by the FISC.
50 u.s.c. § 18030).
STATEMENT OF THE ISSUE PRESENTED FOR REVIEW
Whether Movants have Article III standing to assert their claim of a
qualified First Amendment right of public access to judicial opinions issued by the
Foreign Intelligence Surveillance Court.
PRELIMINARY STATEMENT
The question certified for review presents a single issue: whether a denial of
access to the judicial opinions of an Article III court constitutes an injury in fact
sufficient to confer standing on the party seeking to inspect those records. Virtually
every court to confront a claim of access to judicial records, including the en bane
Foreign Intelligence Surveillance Court ("FISC") in this case, has either held or
assumed that the denial of access to judicial records is an injury in fact. That is true
in national security cases, including in prior FISC cases and in terrorism
prosecutions, where much may be classified. And it is true even in cases where
courts, including the Supreme Court, having assumed or expressly found standing,
ultimately rejected the existence of the claimed right of access on the merits.
Overwhelming authority supports the en bane holding below and establishes the
standing of the American Civil Liberties Union, the American Civil Liberties

1

 Union of the District of Columbia, and the Media Freedom and Information Access
Clinic (collectively, "Movants") to seek disclosure ofFISC opinions.
Courts routinely exercise jurisdiction over claims of access to judicial
records because, under Article III, the denial of access to such records is
unquestionably an actual injury that is cognizable by the courts. This is all that
Article III requires. The government and the dissent below arrive at a different
conclusion by conflating the question of standing with that of the merits. That is,
they conclude that standing is lacking because they would reject Movants ' claim
on the merits. The Supreme Court and other courts have regularly warned against
this error in logic, for the injury required by Article III is distinct from what must
be shown to prevail on the merits. Conflating the two, moreover, elevates to
jurisdictional significance disputes appropriately resolved only on the merits,
including the merits of disputes that courts may come to view differently over
time.
The Court should accordingly affirm the judgment of the court below.
STATEMENT OF THE CASE
In August and October 2013 , government officials and journalists revealed
that intelligence agencies had used the Foreign Intelligence Surveillance Act
("FISA") to justify the bulk collection of Americans' call records, internet

2

 metadata, and location information. 1 The government's reliance on FISA for these
purposes came as a surprise to the public. Nothing on the face of the statute
purported to grant such broad surveillance authority, and nothing in the legislative
history ofFISA or the amendments embodied in the PATRIOT Act, Pub. L. No.
107-56, 115 Stat. 272 (2001), suggested that Congress intended to authorize the
bulk collection of Americans' information.

The Motion for Access to Court Records
On November 6, 2013, Movants filed the motion at issue here, seeking the
release of any FISC opinions addressing "the bulk collection of Americans'
information," pursuant to the First Amendment right of access and FISC Rule 62.
Movants' Mot. for Release of Court Records at 3, In re Opinions & Orders of this

Court Addressing Bulk Collection of Data Under FISA ("In re Opinions & Orders
Addressing Bulk Collection"), No. Misc. 13-08 (FISC Nov. 7, 2013). Movants filed
the motion to inform the public about how the FISC construes the scope of
government surveillance authority when ruling on surveillance applications.
In response to Movants ' access motion, the government identified four FISC
opinions addressing its authority to collect information in bulk. See Gov't Opp. at
2, In re Opinions & Orders Addressing Bulk Collection, No. Misc. 13-08 (FISC
1

See, e.g., James R. Clapper, Dir. ofNat' l Intelligence, Cover Letter
Announcing Document Release at 3 (Aug. 21, 2013), http://l.usa.gov/lbU8Cgt;
Charlie Savage, In Test Project, NS.A. Tracked Cellphone Locations, N.Y. Times,
Oct. 2, 2013, http://nyti.ms/180Alz2.
3

 Dec. 6, 2013). Two construed the extent to which Section 215 of the PATRIOT
Act, 50 U.S.C. § 1861, conferred authority for the bulk collection of Americans'
call records. Redacted versions of these opinions had been released in September
and October 2013, following a government declassification review, after two FISC
judges requested publication of the opinions under FISC Rule 62.2 The other two
opinions addressed authority for bulk collection of Americans ' internet metadata
under FISA' s pen-register provision, 50 U.S.C. § 1842. These opinions were
released by the government with redactions following a declassification review,
after Movants filed their access motion. 3
The redactions in the opinions are substantial, making it difficult for a reader
to understand the FISC's legal analysis. In two of the opinions, dozens of pages are
almost entirely redacted. See Kollar-Kotelly Opinion at 8- 9, 31-38, 73-79; Bates
Opinion at 36- 52, 57- 70. In addition, certain key facts , definitions, and concepts
have been redacted, including:
2

Amended Memorandum Opinion, In re Application of the FBI for an
Order Requiring the Production of Tangible Things from [Redacted] , No. BR 13109 (FISC Aug. 29, 2013 ), https ://perma.cc/LF5Z-VCFR ("Eagan Opinion")
(released Sept. 17, 2013 ); Memorandum, In re Application of the FBI for an Order
Requiring the Production of Tangible Things from [Redacted], No. BR 13-158
(FISC Oct. 11 , 2013), https://perma.cc/NWZ2-MXZU ("McLaughlin Opinion")
(released Oct. 18, 2013).
3

Opinion and Order, [Redacted] , No. PRITT [Redacted] (FISC released
Nov. 18, 2013), http:// l.usa.gov/19Ct5rl ("Kollar-Kotelly Opinion");
Memorandum Opinion, [Redacted], No. PRITT [Redacted] (FISC released Nov.
18, 2013),http:// l.usa.gov/l 9Ct7Q5 ("Bates Opinion").
4

 1. the types of "metadata" that the FISC reasoned were not protected by
the Fourth Amendment and could therefore be collected in bulk; 4
2. the duration of the bulk collection authorized; 5
3. the manner in which Americans' bulk internet metadata was used by
the government, in addition to "contact chaining"; 6 and
4. the nature and duration of the government' s non-compliance with the
FISC ' s orders. 7
The redactions obscure critical information necessary for the public to
understand the FISC's reasoning and its holdings. The first category of redactions,
for example, make it impossible for the public to understand how the FISC applied
the Fourth Amendment to basic kinds of internet data- and therefore what
surveillance the FISC found lawful. See, e.g. , Kollar-Kotelly Opinion at 7-11 ;

4

See Kollar-Kotelly Opinion at 7- 11 , 19 (" [Redacted] like other forms of
metadata, is not protected by the Fourth Amendment .... ");Bates Opinion at 2,
35, 71 ("The government requests authority to [redacted] categories of [sixteen
pages of redacted material].").
5

See, e.g., Bates Opinion at 4.

6

See, e.g. , Kollar-Kotelly Opinion at 42-43 (''NSA proposes to employ two
analytic methods on the body of archived meta data it seeks to collect. ... The two
methods are: (1) Contact chaining . .. [(2)] [Redacted].").
7

See, e.g. , Bates Opinion at 2-3 ("[T]he government acknowledges that
NSA exceeded the scope of authorized acquisition continuously during the more
than [redacted] years of acquisition under these orders."); id. at 105 (" [T]he
unauthorized collection included: [redacted].").

5

 Bates Opinion at 2. 8 Likewise, the fourth category of redactions conceals the ways
in which the government violated the boundaries set by the FISC.
Critically, there is no indication in the public record that the FISC had any
role in determining which portions of its own opinions should be made public. The
government appears to have determined unilaterally which parts of the FISC's
orders should be redacted and kept secret. By contrast, in response to a separate
access motion brought by the ACLU, the FISC required the government to explain
and justify its proposed withholdings in another FISC opinion. 9 That review
proved essential to securing public access to the court's opinion. 10 Once required to
defend its withholdings, the government abandoned many of them. Nothing similar
occurred here.

The Initial FISC Opinion Denying Standing
On January 25, 2017, the FISC issued an opinion denying Movants' access
motion for lack of jurisdiction. The opinion reasoned that "the First Amendment
8

See also Ellen Nakashima & Greg Miller, Official Releases What Appears
To Be Original Court File Authorizing NSA To Conduct Sweeps, Wash. Post, Nov.
18, 2013, http://www.wapo.st/IGqxNK (because "[t]hree pages [of the KollarKotelly Opinion] describing the categories of 'metadata' ... were redacted," its
"true scope" remains "unclear"); Bates Opinion at 57-71 (describing the FISC 's
legal analysis distinguishing internet metadata from content as "difficult linedrawing," following fifteen pages of redacted text).
9

See In re Orders of this Court Interpreting Section 215 of the PATRIOT
Act, No. Misc. 13-02 (FISC Nov. 20, 2013), https://perma.cc/29WY-TUGV.
10

In re Orders of this Court Interpreting Section 215 of the PATRIOT Act,
No. Misc. 13-02 (FISC Aug. 7, 2014), https://perma.cc/KE97-PZWC.
6

 does not afford a qualified right of access" to the opinions sought by Movants, and
therefore "Movants lack standing under Article III" to seek access. In re Opinions
& Orders Addressing Bulk Collection, No. Misc. 13-08, 2017 WL 427591, at* 1

(FISC Jan. 25, 2017).
The opinion's determination that the FISC lacked jurisdiction to consider
Movants' requests for access conflicted with previous FISC rulings. See In re
Orders of this Court Interpreting Section 215 of the PATRIOT Act ("In re Section
215 Orders"), No. Misc. 13-02, 2013 WL 5460064 (FISC Sept. 13, 2013) (Saylor,

J.); In re Motion for Release of Court Records, 526 F. Supp. 2d 484 (FISC 2007)
(Bates, J.); In re Proceedings Required by 702(i) ofFISA Amendments Act of 2008,
No. Misc. 08-01, 2008 WL 9487946 (FISC Aug. 27, 2008) (McLaughlin, J.). After
Movants sought to alter or amend the FISC's judgment, Presiding Judge Collyer,
pursuant to Rule 49 of the FISC Rules of Procedure, sua sponte requested that all
FISC judges be polled as to whether the question ofMovants' standing should be
reconsidered en bane. 11 A majority voted in favor of reconsideration.

The En Banc FISC Opinion Affirming Standing
On November 9, 2017, the FISC issued an en bane opinion holding that
Movants have asserted a cognizable injury in fact and therefore have established
standing. The en bane court vacated the January 25, 2017 decision and remanded
11

Order, In re Opinions & Orders Addressing Bulk Collection, No. Misc.
13-08 (FISC Mar. 22, 2017).
7

 the case for further proceedings. In re Opinions & Orders Addressing Bulk
Collection, No. Misc. 13-08, 2017 WL 5983865 (FISC Nov. 9, 2017) ("En Banc

Op.").
The FISC explained that, "[f]or purposes of standing, the question simply
cannot be whether the Constitution, properly interpreted, extends protection to the
plaintiffs asserted right or interest." En Banc Op. at *4 (slip op. at 8) (quoting
Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1092 (10th Cir. 2006) (en

bane)). That would require reaching the merits of a claim to determine the
existence of standing to raise it. Instead, the en bane FISC explained, courts must
assume that plaintiffs like Movants possess the asserted right of access, "so long as
that right is cognizable"-in other words, so long as "courts are capable of
knowing or recognizing such an interest." Id. at *4 (slip op. at 8-9). The en bane
court found "the sufficiency of Movants' allegation of such a legally protected
interest" to be clear, given the Supreme Court's right-of-access decisions and the
overwhelming authority among the lower courts that a denial of access to the
judicial process, including to judicial opinions, satisfies the legally protected
interest prong of the standing analysis. Id. at *5 (slip op. at 10); see id. at *5-15
(slip op. at 9-14).
Five judges dissented from the FISC's en bane opinion. In re Opinions &
Orders Addressing Bulk Collection, 2017 WL 5983865, at *9-21 ("Dissenting

8

 Op."). The dissenters did not take issue with the conclusion that the injury asserted
by Movants is concrete and particularized, actual or imminent, fairly traceable to
the challenged action, and redressable by a favorable ruling. They would have
held, however, that Movants failed to allege the invasion of a legally protected
interest because, in the view of the dissenters, there is no First Amendment right of
access to FISC opinions. Dissenting Op. at* 12 (slip op. at 13).
Pursuant to 50 U.S.C. § 18030), a majority ofFISC judges agreed that the
question of whether Movants have asserted a sufficient injury in fact should be
certified to this Court. 12 This Court accepted review on January 9, 2018. 13

SUMMARY OF THE ARGUMENT
The en bane FISC correctly held that a denial of access to the judicial
process, including judicial opinions, constitutes an invasion of a judicially
cognizable interest sufficient to satisfy Article Ill's requirement that a party
demonstrate injury in fact. Courts presented with claims for access to judicial
proceedings or records have held time and again-explicitly or implicitly-that the
denial of access itself is a sufficient injury in fact to confer jurisdiction. To

12

Certification of Questions of Law to the Foreign Intelligence Surveillance
Court of Review, In re Opinions & Orders Addressing Bulk Collection, No. Misc.
13-08 (FISC Jan. 5, 2018).
13

Order, In re Certification of Questions of Law to the Foreign Intelligence
Surveillance Court ofReview, No. 18-01 (FISCR Jan. 9, 2018).
9

 establish standing, a party need only claim injury to a non-frivolous legal interest,
and Movants have plainly done so here.
ARGUMENT

In order to invoke the jurisdiction of any Article III court, including the
FISC, a party must demonstrate: (1) that it has suffered an injury in fact; (2) that
the injury is caused by or fairly traceable to the challenged actions of the
defendant; and (3) that it is likely that the injury will be redressed by a favorable
decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). Movants have
plainly met these requirements here.
Movants requested and were denied access to certain FISC opinions, and the
only question in dispute is whether that denial constitutes an "injury in fact." En
Banc Op. at *3 (slip op. at 7). The Supreme Court in Lujan described "injury in
fact" as the "invasion of a legally protected interest which is (a) concrete and
particularized; and (b) actual or imminent, not conjectural, or hypothetical." 504
U.S. at 560 (citations omitted). Both before and after Lujan, the Supreme Court has
explained what it means for an interest to be "legally protected" for purposes of the
standing inquiry: it means that the injury alleged must be one that is "legally and
judicially cognizable," Raines v. Byrd, 521 U.S. 811, 819 (1997), assuming the
validity of the party's claim on the merits, see Warth v. Seldin, 422 U.S. 490, 500
(1975). The en bane court correctly concluded that Movants' claim is legally and

10

 judicially cognizable. See En Banc Op. at *4 (slip op. at 8-9). The dissent's
contention that Movants failed to demonstrate an "invasion of a legally protected
interest," Dissenting Op. at *10 (slip op. at 3), is untenable.
I.

MOVANTS HAVE IDENTIFIED AN INJURY IN FACT SUFFICIENT
TO ESTABLISH ARTICLE III STANDING.
Denial of access to Article III judicial opinions, including FISC opinions,

constitutes an injury sufficient to satisfy Article III. A party who asserts a
constitutional right of access to court records, and is denied that access, has
suffered an injury that is both concrete and particularized. The injury is concrete
because the party seeking access is in fact being deprived of information, and it is
particularized because the party specifically sought and was denied certain
material. Virtually every court to consider the question has agreed, either explicitly
or implicitly, with this basic proposition. Moreover, in finding standing, courts
have overwhelmingly agreed that a claimed right of access to judicial records is a
legally cognizable interest- whether or not an actual right of access is ultimately
established on the merits.
As an initial matter, the Supreme Court' s decisions uniformly presume that a
party seeking to inspect judicial records or attend court proceedings has standing.

In Press-Enterprise Co. v. Superior Court ("Press-Enter. II"), 478 U.S. 1 (1986), a
seminal First Amendment right-of-access case, the Supreme Court squarely
considered whether it had ''jurisdiction under Article III, § 2, of the Constitution."
11

 Id. at 6. While its discussion focused on the issue of mootness, the Court never

questioned that the media company asserting a right of access had suffered an
injury in fact. Nor did the Court anywhere suggest that the media company's
standing turned on the merits of its access claim. The Supreme Court's earlier
right-of-access decisions are also in line with this approach. See Press-Enter. Co.
v. Superior Court ("Press-Enter. I"), 464 U.S. 501 (1984); Globe Newspaper Co.
v. Superior Court, 457 U.S. 596 (1982); Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555 (1980) (plurality). Significantly, the Court has recognized standing to
assert a constitutional access right even when it ultimately denied the existence of
that right. Gannett Co. v. DePasquale, 443 U.S. 368, 377-78 (1979) (rejecting a
newspaper publisher's Sixth Amendment right-of-access claim on the merits). That
the Supreme Court has not doubted movants ' standing to assert rights of public
access to judicial proceedings is unsurprising: in Nixon v. Warner
Communications, Inc., 435 U.S. 589 (1978), it explicitly recognized that the type
of "interest" necessary for a party to pursue a right-of-access claim had long been
found "in the citizen's desire to keep a watchful eye on the workings of public
agencies, and in a newspaper publisher's intention to publish information
concerning the operation of government." Id. at 597-98 (citations omitted).
Every circuit court of appeals has followed the Supreme Court's lead,
holding, either explicitly or implicitly, that a party denied access to judicial records

12

 or proceedings has suffered an injury in fact sufficient to confer Article III
standing. See, e.g., Carlson v. United States, 837 F.3d 753, 758-61 (7th Cir. 2016);
Pansy v. Borough ofStroudsburg, 23 F.3d 772 (3d Cir. 1994); Doe v. Pub. Citizen,
749 F.3d 246, 264 (4th Cir. 2014); In re Wash. Post Co., 807 F.2d 383, 388 n.4
(4th Cir. 1986) (finding that newspaper "meets the standing requirement because it
has suffered an injury that is likely to be redressed by a favorable decision");
Courthouse News Serv. v. Planet, 750 F.3d 776, 788 (9th Cir. 2014) (stating that
there is "no question" that news organization had alleged a cognizable injury
caused by court's denial of timely access to newly filed complaints); United States
v. Cianfrani, 573 F.2d 835, 845-46 (3d Cir. 1978) ("Intervenors' allegations that
the district court denied them access to the pretrial hearing, and continues to deny
I

them access to the record of that proceeding, state the constitutionally required
'injury in fact[.]'"); Newman v. Graddick, 696 F.2d 796, 800 (11th Cir. 1983)
("[T]he newspaper publisher has suffered a 'distinct and palpable' injury since its
reporters have requested and been denied access."); In re Bos. Herald, Inc., 321
F.3d 174 (1st Cir. 2003) (rejecting claim of access to eligibility documents for
Criminal Justice Act funds on the merits, without questioning movant's standing);
Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006)
(sustaining claim of access to summary judgment materials filed under seal on the
merits, without questioning movant's standing); United States v. Edwards, 823

13

 F.2d 111 (5th Cir. 1987) (rejecting certain claims of access to in camera juror
questioning while sustaining others on the merits, without questioning movant's
standing); In re Search of Fair Fin. , 692 F.3d 424, 428-29 (6th Cir. 2012)
(rejecting claim of access to judicial documents filed in search warrant proceedings
on the merits, without questioning movant' s standing); In re Search Warrant for
Secretarial Area Outside Office of Gunn, 855 F.2d 569, 572-73 (8th Cir. 1988)
(sustaining claim of access to documents filed in support of search warrant
applications, without questioning movant's standing); United States v. Gonzales,
150 F.3d 1246 (10th Cir. 1998) (rejecting claim of access to fee applications filed
under the Criminal Justice Act on the merits, without questioning movant's
standing); Dhiab v. Trump , 852 F.3d 1087 (D.C. Cir. 2017). 14
A recent decision by the Seventh Circuit is instructive. In Carlson v. United
States, the court analyzed the standing question at length in response to a suit for
access to grand jury transcripts. 837 F.3d at 758-61. It sharply distinguished the
existence of standing from the merits of an access claim, emphasizing that
"Carlson has standing to assert his claim to the grand-jury transcripts, because they
14

The dissenting opinion below points to Bond v. Utreras, 585 F.3d 1061
(7th Cir. 2009), but even that case recognized that members of the public have
standing to seek access to "judicial records," which is precisely what Movants seek
here. Id. at 1073-74. To the extent that Bond suggests that courts may collapse the
standing and merits inquiries in right-of-access cases, Movants submit that it is at
odds with both the Supreme Court's decisions and those of other circuit courts, as
well as the Seventh Circuit's recent decision in Carlson.
14

 are public records to which the public may seek access, even ifthat effort is
ultimately unsuccessful (perhaps because of sealing, national security concerns, or
other reasons)." Id. at 757-58; see id. at 759. The Seventh Circuit's logic echoes
that of the Third Circuit in Pansy v. Borough of Stroudsburg, 23 F.3d 772, in
which the court held that newspapers had established standing to seek access to a
confidential settlement agreement even if they did not ultimately prevail on the
merits. Instead, the court held, to establish standing, the newspapers needed only to
show that the confidentiality order they challenged "present[ ed] an obstacle" to the
access they were seeking. Id. at 777; see Pub. Citizen, 749 F.3d at 264 (holding
that intervenors' injury "is formed by their inability to access judicial documents
and materials filed in the proceedings below, information that they contend they
have a right to obtain and inspect under the law").
Less than a year ago, the D.C. Circuit implicitly affirmed the same principles
when it addressed a right-of-access claim on the merits. Though a fractured panel
in Dhiab v. Trump, 852 F.3d 1087, ultimately rejected a claim for access to
videotape evidence of force-feeding at Guantanamo Bay, not one member of the
panel questioned intervenors' standing to pursue the access claim. Even Judge
Williams, who questioned whether the videos were "judicial records," nowhere
suggested that the court of appeals lacked jurisdiction to reach the merits. See id. at
1103--04 (Williams, J ., concurring); see also In re NY. Times Co. Application to

15

 Unseal Wiretap, 577 F.3d 401, 409-11 (2d Cir. 2009) (rejecting request to unseal
wiretap applications and related materials on the merits, without questioning the
party's standing). 15
In line with this consensus, the FISC itself has repeatedly found standing to
consider claims of access to its records. In re Section 215 Orders, 2013 WL
5460064, at *2-4; In re Proceedings Required by§ 702(i) of FISA Amendments
Act of 2008, 2008 WL 9487946; In re Motion for Release of Court Records, 526 F.
Supp. 2d 484.
Even outside the domain of judicial records and proceedings, courts have
broadly recognized that the denial of access to information or proceedings
constitutes an injury to a legally cognizable interest. The Supreme Court has
consistently held that a party suffers an Article III injury when he or she seeks and
is denied information, regardless of whether the party is ultimately entitled to the
information sought. See Pub. Citizen v. US. Dep 't of Justice, 491 U.S. 440, 449-

15

The dissenting opinion suggests that several of the decisions cited in this
section are inapposite because "they involved permissive intervenors," who need
not necessarily demonstrate standing to intervene. Dissenting Op. at* 19 (slip copy
at 21 ). But Movants here are similarly situated to those intervenors, because they
seek the disclosure of court records filed or issued in the course of preexisting
judicial proceedings. While Movants readily satisfy Article Ill's standing
requirement for the reasons set out in this brief, the dissent's argument would
suggest, if anything, that Movants could pursue their access claims without
demonstrating Article III standing at all. See, e.g., King v. Governor of New Jersey,
767 F.3d 216, 244-46 (3d Cir. 2014) (holding that a permissive intervenor need
not have Article III standing).
16

 50 (1989) (reasoning that the fact that a party sought and was denied specific
agency records "constitutes a sufficiently distinct injury to provide standing" under
the Freedom of Information Act); see also FEC v. Akins, 524 U.S. 11, 21-25
(1998) (holding that a group of voters had a concrete injury based upon their
inability to receive certain donor and campaign-related information from an
organization); Havens Realty Corp. v. Coleman, 455 U.S. 363, 373-74 (1982)
(concluding that deprivation of information about housing availability was
sufficient to constitute an Article III injury). Perhaps most tellingly, even when the
Supreme Court has rejected a claimed right of access on the merits, it has held or
assumed that the party deprived of access had standing. See, e.g., Pub. Citizen, 491
U.S. at 449-50; Pell v. Procunier, 417 U.S. 817, 834 (1974) (rejecting, on the
merits, reporters' claim that the First Amendment afforded right of access to
prisons or their inmates); Saxbe v. Wash. Post Co., 417 U.S. 843 (1974) (rejecting,
on the merits, press's First Amendment challenge to prison regulation prohibiting
face-to-face interviews with prisoners).
Likewise, other appellate courts have recognized parties' standing to seek
access to non-judicial information or proceedings under the First Amendment. In
the context of administrative hearings, the Second Circuit held that a plaintiff
denied access to those proceedings had suffered an injury in fact. NY Civil
Liberties Union v. NYC Transit Auth., 684 F.3d 286, 294-95 (2d Cir. 2011). The

17

 court found that the plaintiff had suffered an injury to "a cognizable interest" by
being excluded from the hearings. Id. at 295. Standing did not depend on whether
the plaintiff could show a First Amendment right to attend administrative hearings
in general, or on whether the plaintiff ultimately established a right to attend any
hearings in particular. Id. at 294-96; see also Flynt v. Rumsfeld, 355 F.3d 697, 702
(D.C. Cir. 2004) (observing, in case where reporter was denied access to military
combat units, "we assume the validity of appellants' allegation of injury, although
having crossed that threshold, we may ultimately determine it to be invalid"); Cal.

First Amendment Coal. v. Calderon, 150 F.3d 976, 980 n.8 (9th Cir. 1998)
("Although we conclude tha~ Procedure 770 does not violate the Coalition's First
Amendment rights to gather news, the Coalition asserts an interest that is at least
arguably protected by the [F]irst [A]mendment.").
The case law is consistent on the question of Article III standing in right-ofaccess cases because the Supreme Court has sharply distinguished the "judicially
cognizable interest" necessary to support standing from the legal entitlement
necessary to prevail on the merits. Bennett v. Spear, 520 U.S. 154, 167 (1997).
Those invoking a court's jurisdiction need not establish the latter to demonstrate
the former. As the Supreme Court has said, "standing in no way depends on the
merits of the plaintiff's contention that particular conduct is illegal." Warth, 422
U.S. at 500; see also Initiative & Referendum Inst., 450 F.3d at 1093; Arreola v.

18

 Godinez, 546 F .3d 788, 794-95 (7th Cir. 2008). And as the Seventh Circuit has
observed:
That [the] petition is not guaranteed to be granted,
because a court may find a valid justification for denying
him access, in no way destroys his standing to seek the
documents. To hold otherwise would amount to denying
standing to everyone who cannot prevail on the merits,
an outcome that fundamentally misunderstands what
standing is.

Carlson, 837 F.3d at 759 (citations omitted); see Initiative & Referendum Inst., 450
F.3d at 1092 ("For purposes of standing, the question cannot be whether the
Constitution, properly interpreted, extends protection to the plaintiffs asserted
right or interest. If that were the test, every losing claim would be dismissed for
want of standing."); Judicial Watch, Inc. v. US. Senate, 432 F.3d 359, 363--64
(D.C. Cir. 2005) (explaining that a "legally protected interest" need only be a
"cognizable" one because to require any more would ''thwart a major function of
standing doctrine-to avoid premature judicial involvement in resolution of issues
on the merits").
Accordingly, the standing inquiry does not rest on whether the
"Constitution, properly interpreted, extends protection to the plaintiffs asserted
right or interest." Initiative & Referendum Inst., 450 F.3d at 1092. That is a merits
inquiry. Instead, courts should presume the existence and legal validity of a
plaintiffs asserted right, so long as that right is cognizable and non-frivolous. Id. at

19

 1093. A right is "cognizable" so long as courts are capable of knowing or
recognizing the interest asserted. "Where [a] plaintiff presents a nonfrivolous legal
challenge, alleging an injury to a protected right such as free speech, the federal
courts may not dismiss for lack of standing on the theory that the underlying
interest is not legally protected." Id. at 1093. 16
To assume otherwise by collapsing standing and the merits, as the dissent
did below, would invite a slew of legal and practical problems. Conflating the two
would invite courts to resolve constitutional questions at the threshold-an
invitation at odds with the canon of constitutional avoidance. See United States v.
Nat '! Treasury Emps. Union , 513 U.S. 454, 478 (1995) (describing the Supreme

Court's "policy of avoiding unnecessary adjudication of constitutional issues").
Indeed, the FISC 's prior access decision illustrates how constitutional issues may
be avoided by correctly distinguishing standing from the merits. See In re Section
16

In addressing Initiative & Referendum Inst. , the dissent acknowledged that
standing and the merits are distinct questions, but where it proceeded to draw the
line between those inquiries is all but unprecedented in First Amendment access
cases. See Dissenting Op. at* 16- 18 (slip copy at 16- 19). The dissent would treat
its analysis of whether FISC opinions "have been historically open to the public"
as a standing question. Id. at * 17 (slip copy at 18). But that has never been the
measure of a party's injury in fact, even in the First Amendment cases the dissent
cites. Instead, myriad cases explicitly or implicitly recognize standing based on the
fact that the party has been injured by being denied access to information-even
when those cases ultimately rejected claims on the merits because the category of
judicial proceeding or court record fell outside the scope of the First Amendment's
protection.

20

 215 Orders, 2013 WL 5460064, at *2-4, *8 (finding standing and ordering
declassification review of FISC materials pursuant to Rule 62, without addressing
First Amendment claim). And in many cases, courts conflating standing with the
merits would have to make premature factual determinations in the absence of an
adequate record-an approach ordinarily inappropriate at the outset of a case,
where even "a generalized allegation of injury in fact" suffices. Lucas v. S. C.

Coastal Council, 505 U.S. 1003, 1012 n.3 (1992).
Finally-and critically, as the en bane majority recognized-requiring an
established right to confer standing would essentially bar novel legal claims from
the courts. If standing required the definitive demonstration of a right's existence
and scope, then plaintiffs could never establish the existence of constitutional
rights in novel contexts or challenge established precedent. Courts, however,
routinely entertain claims asserting the existence of rights not yet recognized or
even rights rejected in the past. See, e.g. , Obergefell v. Hodges, 135 S. Ct. 2584
(2015) (establishing a Fourteenth Amendment right to marriage licensing and
recognition for same-sex couples); Citizens United v. FEC, 558 U.S. 310, 365
(2010), overruling Austin v. Mich. Chamber of Commerce, 494 U.S. 652 (1990);

District of Columbia v. Heller, 554 U.S . 570 (2008) (establishing a Second
Amendment individual right to keep and bear arms, effectively overruling United

States v. Miller, 307 U.S. 174 (1939)); Lawrence v. Texas , 539 U.S. 558 (2003),

21

 overruling Bowers v. Hardwick, 478 U.S. 186 (1986); Buckley v. Valeo, 424 U.S. 1
(1976) (holding for the first time that certain limitations on campaign expenditures
violate First Amendment rights to free speech and association); Brown v. Bd. of

Educ., 349 U.S. 294 (1955), overruling Plessy v. Ferguson, 163 U.S. 537 (1896).
Similarly, even in cases asserting wholly novel rights of access, courts have held
that standing exists. See, e.g., Carlson, 837 F.3d at 757-61; Flynt, 355 F.3d 697;
N. Y Civil Liberties Union , 684 F.3d at 294-95. "[F]ar-fetchedness is a question to

be determined on the merits," not at the standing phase. Initiative & Referendum

Inst., 450 F.3d at 1093.
To be sure, determining whether a given interest is judicially cognizable can
present a difficult question in some cases. An asserted injury can be so unorthodox
or frivolous that it is not 'judicially cognizable" or "legally protectable." See id. at
1093 ("[A] plaintiff whose claimed legal right is so preposterous as to be legally
frivolous may lack standing on the ground that the right is not 'legally
protected."'); Allen v. Wright, 468 U.S. 737, 752 (1984 ), abrogated on other

grounds byLexmarklnt 'l, Inc. v. Static Control Components, 134 S. Ct. 1377
(2014) (questioning whether an injury may be ''too abstract" to be judicially
cognizable). But that is not remotely the case here. As shown above, while courts
have upheld far more tenuous claims, Movants assert a widely recognized

22

 interest-one routinely embraced by Article III courts as a proper basis for
exercising their jurisdiction.
II.

NOTHING ABOUT THE FOUR OPINIONS SOUGHT BY MOVANTS
ALTERS THE STANDING ANALYSIS.
To address the standing issue, this Court need go no further than recognizing

that uniform case law and settled doctrine dictate that Movants have satisfied
Article Ill's injury-in-fact requirement by alleging a denial of access to judicial
opinions. The dissenting judges below would have held otherwise, relying on the
fact that the specific opinions Movants seek have been partially disclosed, and that
the four opinions contain classified information. Neither fact has legal significance
for the standing inquiry.
A.

Partial disclosure of the opinions at issue does not alter the
standing analysis.

That Movants are being denied access to only portions of the FISC opinions,
see Dissenting Op. at *9 (slip op. at 1- 2), does not void Movants' standing. In fact,

many right-of-access motions challenge only the partial withholding of
information. See, e.g., Pub. Citizen., 749 F.3d 246 (partially redacted judicial
opinion); Newsday LLC v. Cty. ofNassau, 730 F.3d 157, 165-66 (2d Cir. 2013)
(partially redacted hearing transcript). If partial disclosure eliminated standing to
assert a constitutional right of access, the right of access would mean little, as the
government could always disclose some information to insulate its withholdings

23

 from judicial review. In reality, whether the partial disclosures have entirely
satisfied Movants' claims is not a question of standing, but rather of mootness. A
suit becomes moot "when the issues presented are no longer 'live' or the parties
lack a legally cognizable interest in the outcome." Chafin v. Chafin, 568 U.S. 165,
172 (2013) (quoting Already, LLCv. Nike, Inc., 568 U.S. 85, 91 (2013)). However,
as long as a court can still grant "any effectual relief whatever to the prevailing
party," a case is not moot. Id. at 172 (quoting Knox v. Serv. Emps., 567 U.S. 298,
307 (2012)); see also Church of Scientology of Cal. v. United States, 506 U.S. 9,
12 (1992) (finding that dismissal on mootness grounds is warranted ifthe court is
unable to grant "any effectual relief whatever").
Here, Movants continue to suffer an injury in fact with respect to the
undisclosed portions of the opinions. The FISC can still grant relief to the Movants
by granting access to redacted portions of the judicial opinions. The government's
partial, voluntary disclosure of a judicial opinion- however extensive-cannot
serve to eliminate a party's standing to petition the FISC for disclosure of the
remainder of those opinions under the First Amendment. Movants' claim for
access is not moot, and their standing is certainly not implicated.

24

 B.

The existence of classified information in undisclosed portions of
the opinions does not strip Movants of standing to raise their
right-of-access claim.

Contrary to the conclusion of the dissenting judges, see Dissenting Op. at *9
(slip op. at 2), the fact that the FISC opinions at issue contain information
classified by the executive branch has no bearing on Movants' standing to seek the
opinions under the First Amendment. The dissent appears to suggest that the
government's classification of information in the opinions divests Movants of
standing in two ways, but neither has merit.
First, the dissent argues that the threshold question is whether Movants have
a right of access to information that the government says is classified, Dissenting
Op. at* 11 (slip op. at 5), but this misunderstands Movants' claim and the First
Amendment right of access. Movants claim a right of access to the FISC's Article
III opinions, and it is undisputed that these opinions are judicial records, regardless
of whether they contain classified information. They were created by Article III
judges exercising judicial authority vested by Article III. See Nixon, 435 U.S. at
598 ("Every court has supervisory power over its own records and files.").
Movants seek access to these judicial opinions arising from Article III
proceedings, not to executive branch materials.
This is significant because the right-of-access analysis looks to the "type" of
proceeding or record at issue, not (as the dissent would have it) to the specific

25

 information contained within a particular record. See El Vocero de P.R. v. Puerto

Rico, 508 U.S. 147, 150 (1993) (the experience test looks "to the experience in
that type or kind of hearing"); Press-Enter. II, 478 U.S. at 10 (analyzing the
experience of access to preliminary hearings as a category); Lugosch, 435 F.3d 110
(analyzing whether summary judgment documents, as a category, are subject to the
right of access).
Accordingly, when courts have confronted a claim of access to particular
judicial documents, they have analyzed the existence of the right of access to the

category of document at issue. See Pub. Citizen, 749 F.3d 246 Uudicial opinions
and summary judgment papers); Lugosch, 435 F.3d 110 (summary judgment
papers); United States v. Ochoa-Vasquez, 428 F.3d 1015, 1029-31 (11th Cir. 2005)
(court docket sheets); Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 93-94 (2d
Cir. 2004) (court docket sheets); Rushford v. New Yorker Magazine, Inc., 846 F.2d
249 (4th Cir. 1988) (summary judgment papers); In re Search Warrant for

Secretarial Area Outside Office of Gunn, 855 F.2d at 572-73 (search warrant
applications).

If, on the merits, a party succeeds in demonstrating that a right of access
attaches to particular types of judicial documents, then a court may proceed to
consider whether the right is overcome for specific documents, in whole or in part,
I

by determining whether closure is "essential to preserve higher values"; whether

26

 there are reasonable alternatives; whether closure "is narrowly tailored to serve that
interest"; and whether closure will be effective. Press-Enter. II, 478 U.S. at 13-14.
If Movants, on the merits, succeed in demonstrating that the public has a right of

access to the FISC's opinions, only then would the court consider the
government's justifications for its proposed redactions. In other words, the nature
of the redactions has no bearing on the existence of a right of access to the opinions
in the first place. Rather, the nature of the redactions is relevant to the
determination of whether any right that is found to exist can be overcome.
Applying this reasoning, courts have not hesitated to review claims of access
involving classified information, secret court proceedings, or sealed materials,
even if they ultimately required only partial disclosures or fully denied the claim.
See In re Wash. Post Co., 807 F.2d at 390-92 (classified information); In re Search
ofFair Fin., 692 F.3d at 428-29, 433 (sealed search warrants); In re NY. Times
Co. Application to Unseal Wiretap, 577 F.3d at 409-11 (sealed wiretap
applications); Bait. Sun Co. v. Goetz, 886 F.2d 60, 63-65 (4th Cir. 1989) (sealed
search warrants). Even in prior FISC cases that rejected claims concerning the
public's right of access to the court's opinions or proceedings, the FISC expressly
held that the movants had standing. See In re Motion for Release of Court Records,
526 F. Supp. 2d 383; In re Proceedings Required by§ 702(i) ofFISA Amendments
Act of 2008, 2008 WL 9487946.

27

 Second, the dissent contends that claims involving classified information
call for a more demanding standing inquiry, see Dissenting Op. at *20-21 (slip op.
at 23-25), but that contention relies on a misinterpretation of Clapper v. Amnesty

International USA, 568 U.S. 398 (2013), and Raines v. Byrd, 521 U.S. 811 (1997).
Those cases do not, as the dissent suggests, impose a heightened standing
requirement for claims implicating classified information or executive branch
decision-making-and they certainly do not instruct courts to recast merits issues
into standing questions. See Schuchardt v. President of the United States, 839 F.3d
336, 348 n.8 (3d Cir. 2016) ("Despite Clapper's observation that the standing
inquiry is especially rigorous in matters touching on intelligence gathering and
foreign affairs," no court has held that "Article III imposes [a] heightened standing
requirement for the often difficult cases that involve constitutional claims against
the executive involving surveillance." (quoting Jewel v. NSA, 673 F.3d 902, 913
(9th Cir. 2011)). Moreover, as the En Banc Opinion correctly points out, Movants
here seek access to the results ofjudicial proceedings-they do not challenge
executive branch conduct-and thus Movants' claim is not "directly traceable to
the activities of the political branches in intelligence gathering or foreign affairs."
En Banc Op. at *8 (slip op. at 17). Accordingly, Movants' standing burden is the
same as for any party seeking access to the opinions of an Article III court.

28

 The dissent' s reliance on Clapper and Raines is misplaced for the additional
reason that those cases did not turn on the "legally protected" interest prong of the
injury-in-fact requirement. Instead, Clapper focused on Article Ill's requirement
that the alleged injury in fact be "certainly impending," 568 U.S. at 409; and
Raines found that the plaintiffs had neither identified a "personal stake" in the
matter nor alleged a sufficiently concrete injury, 521 U.S. at 830. Here, in contrast,
there is no question that Movants' injuries are actual, concrete, and personal:
Movants have in fact been denied access to portions of the opinions they seek.
Thus, even if Clapper or Raines elevated the standing burden for certain cases, that
elevated burden would not apply to this one. And in any event, as the En Banc
Opinion observed, the Supreme Court has never suggested that any elevated
standing burden would "involve jumping to the merits of the dispute." En Banc
Op. at *8 (slip op. at 16).
CONCLUSION
For the foregoing reasons, the Court should affirm the FISC's en bane ruling
and hold that Movants have Article III standing to seek access to the FISC's
judicial opinions.

Dated: February 23, 2018

David A. Schulz
Hannah Bloch-Wehba

29

 American Civil Liberties Union
Foundation
125 Broad Street, 18th Floor
New York, NY 10004
Phone: (212) 549-2500
Fax: (212) 549-2654
ptoomey@aclu.org

John Langford
Media Freedom & Information
Access Clinic•
Abrams Institute
Yale Law School
P.O. Box 208215
New Haven, CT 06520
Phone: (203) 436-5827
Fax: (203) 432-3034
david.schulz@ylsclinics.org

Arthur B. Spitzer
Scott Michelman
American Civil Liberties Union of the
District of Columbia
915 15th Street, N.W., 2nd floor
Washington, D.C. 20005
Phone: (202) 457-0800
Fax: (202) 457-0805
aspitzer@acludc.org

Alex Abdo
Jameel Jaffer
Knight First Amendment Institute at
Columbia University
475 Riverside Drive, Suite 302
New York, NY 10115
Phone: (646) 745-8500
alex.abdo@knightcolumbia.org

Counsel for Movants

•This memorandum has been prepared with the assistance of Yale Law
School students, Meenakshi Krishnan and Paulina Perlin. This brief does not
purport to present the institutional views of Yale Law School, if any.
30

 CERTIFICATE OF COMPLIANCE
This brief complies with the page limitation set out in the Order of the
Foreign Intelligence Surveillance Court of Review dated January 9, 2018, because
it is no more than 30 pages in length excluding the parts of the brief exempted by
Fed. R. App. P. 32(f).
This brief complies with the typeface requirements of Fed. R. App. 32(a)(5)
and the type-style requirements of Fed. R. App. P. 32(a)(6) because it has been
prepared in a proportionally spaced typeface using Microsoft Word in 14-point
Times New Roman.

31

 CERTIFICATION OF BAR MEMBERSHIP AND
SECURITY CLEARANCE STATUS
Pursuant to the United States Foreign Intelligence Surveillance Court of
Review's Rules of Procedure 9(d), 9(e) and 19, Movants

r~spectfully

submit the

following information:

Bar Membership Information
Undersigned counsel for Movants are licensed attorneys and members, in
good standing, of the bars of United States district and circuit courts. See FISCR
R.P. 9(d), 19.
Patrick Toomey is a member, in good standing, of the following federal
courts: the United States Courts of Appeals for the Second, Fourth, and Ninth
Circuits; and the United States District Courts for the Eastern and Southern
Districts of New York, and the District of Colorado. He is licensed to practice law
by the bars of the States of Massachusetts and New York.
Brett Max Kaufman is a member, in good standing, of the following federal
courts: the Supreme Court of the United States; the United States Court of Appeals
for the Second Circuit, Third Circuit, and Federal Circuit; and the United States
District Courts for the Southern District of New York and the District of Columbia.
He is licensed to practice law by the bar of the State ofNew York.

32

 Alex Abdo is a member, in good standing, of the following federal courts:
the Supreme Court of the United States; the United States Courts of Appeals for
the First, Second, Fourth, Ninth, and District of Columbia Circuits; and the United
States District Courts for the Eastern and Southern Districts of New York. He is
licensed to practice law by the bar of the State of New York.
Jameel Jaffer is a member, in good standing, of the following federal courts:
the Supreme Court of the United States; the United States Courts of Appeals for
the Second, Fourth, Sixth, Ninth, and District of Columbia Circuits; and the United
States District Courts for the Eastern and Southern Districts of New York, the
Eastern District of Michigan, and the District of Columbia. He is licensed to
practice law by the bar of the State ofNew York.
Arthur Spitzer is a member, in good standing, of the following federal
courts: the Supreme Court of the United States; the United States Courts of
Appeals for the Fourth, Ninth, District of Columbia, Federal, and Armed Forces
Circuits; and the United States District Courts for the Eastern and Southern
Districts of New York, and the District of Columbia. He is licensed to practice law
by the bar of the District of Columbia.
Scott Michelman is a member, in good standing, of the following federal
courts: the Supreme Court of the United States; the United States Courts of
Appeals for the Second, Third, Fourth, Sixth, Seventh, Ninth, Tenth, and District

33

 of Columbia Circuits; and the United States District Courts for the Northern
District of California (inactive status), the District of Columbia, and the Eastern
and Western Districts of Michigan. He is licensed to practice law by the bar of the
District of Columbia and is an inactive member of the bar of the State of
California.
David Schulz is a member, in good standing, of the following federal courts:
the Supreme Court of the United States; the United States Courts of Appeals for
the Second, Third, Fourth, Ninth, Tenth and District of Columbia Circuits; and the
United States District Courts for the District of Columbia, the District of
Connecticut, and for all Districts of the State of New York. He is licensed to
practice law by the bars of the District of Columbia and the State of New York.
Hannah Bloch-Wehba is a member, in good standing, of the following
federal courts: the United States Courts of Appeals for the Ninth and Eleventh
Circuits; and the United States District Court for the District of Columbia. She is
licensed to practice law by the bars of the State of Texas and the District of
Columbia.
John Langford is a member, in good standing, of the following federal
courts: the United States Courts of Appeals for the Second and Ninth Circuits; and
the United States District Courts for the Eastern and Southern Districts of New
York. He is licensed to practice law by the bar of the State ofNew York.

34

 Security Clearance Information
Pursuant to FISCR R.P. 9( e), Movants certify that Arthur Spitzer held a
"Secret" security clearance issued in 2011 by the Department of Justice. Although
this clearance technically expired in 2016, Mr. Spitzer has applied to renew that
security clearance and he understands that he continues to be permitted access to
classified information while his application is pending.
The point of contact for Mr. Spitzer's security clearance is:
Debra M. Guerrero-Randall
Security Specialist
U.S. Department of Justice
SEPS - Litigation Security Group
2CON 2W.115
.
Washington, DC 20530
Phone: (202) 514-9016
Fax: (202) 307-2066
Because Movants' motion and the related briefing does not contain
classified information, Movants respectfully submit that all undersigned counsel
may participate in proceedings on the motion without access to classified
information or security clearances. See FIS CR R.P. 19 (requiring counsel to have
only "the appropriate security clearance").

Respectfully submitted,

Dated: February 23, 2018

David A. Schulz
Hannah Bloch-Wehba
John Langford

American Civil Liberties Union
35

 Media Freedom & Information Access
Clinic
Abrams Institute
Yale Law School
P.O. Box 208215
New Haven, CT 06520
Phone: (203) 436-5827
Fax: (203) 432-3034
david.schulz@ylsclinics.org

Foundation
125 Broad Street, 18th Floor
New York, NY 10004
Phone: (212) 549-2500
Fax: (212) 549-2654
ptoomey@aclu.org
Arthur B. Spitzer
Scott Michelman
American Civil Liberties Union of the
District of Columbia
915 15th Street, N.W., 2nd floor
Washington, D.C. 20005
Phone: (202) 457-0800
Fax: (202) 457-0805
aspitzer@acludc.org

Alex Abdo
Jameel J affer
Knight First Amendment Institute at
Columbia University
475 Riverside Drive, Suite 302
New York, NY 10115
Phone: (646) 745-8500
alex.abdo@knightcolumbia.org

Counsel for Movants

36

 CERTIFICATE OF SERVICE
I, Patrick Toomey, certify that on this day, February, 23, 2018, a copy of the
foregoing brief was served on the following persons by the methods indicated:
By email and UPS delivery

Maura L. Peterson
Litigation Security Group
U.S. Department of Justice
2 Constitution Square
145 N Street, N.E.
Suite 2W-115
Washington, DC 20530
Maura.L.Peterson@usdoj.gov
By email and UPS delivery

Jeffrey Smith
Counsel, Appellate Unit
U.S. Department of Justice
National Security Division
950 Pennsylvania Ave., N.W.
Washington, DC 20530
Jeffrey.Smith5@usdoj.gov
By email and UPS delivery

Laura Donohue
Georgetown University Law Center
600 New Jersey Ave., N.W.
Washington, DC 20001
ldk@georgetown.edu
By email and UPS delivery

Caitlin Vogus
Reporters Committee for Freedom of the Press
1156 15th St. N.W.

 Suite 1250
Washington, DC 20005
cvogus@rcfp.org



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