In re: Sealed Case

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 12, 2024 Decided July 18, 2025
No. 24-5089
IN RE: SEALED CASE
Appeal from the United States District Court
for the District of Columbia
(No. 1:24-mc-00007)
Ari Holtzblatt argued the cause for appellant. With him on
the briefs was Jeremy W. Brinster.
Daniel J. Lenerz, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Matthew M.
Graves, U.S. Attorney, at the time the brief was filed, and
Chrisellen R. Kolb, Assistant U.S. Attorney.
Before: MILLETT and GARCIA, Circuit Judges, and
ROGERS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GARCIA.
GARCIA, Circuit Judge: The Stored Communications Act
authorizes the government to subpoena electronic
communication service providers for certain user records. The
Act also permits the government to seek a court order
prohibiting a service provider from disclosing that it received
such a subpoena. A court may enter that order, however, only

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“if it determines that there is reason to believe” disclosure
“will” pose a safety risk or jeopardize the government’s
investigation. 18 U.S.C. § 2705(b).
This case involves a bold exercise of that statutory
authority. The government asked for, and a court issued, an
order allowing the government to prohibit the disclosure of any
subpoena related to a particular investigation for one year, so
long as the government decided that disclosure would risk one
of the harms specified in the Act. The government then served
a subpoena for user records on X Corp. and attached the
nondisclosure order. X moved to vacate the nondisclosure
order, arguing that it does not comply with the Act. The district
court denied X’s motion.
We reverse. The order does not conform to the Act because
a court did not find “reason to believe” that disclosure “will”
risk a statutory harm. In reaching that conclusion, however, we
do not rule out the possibility that other prospective, multi-
subpoena orders might satisfy the statute’s requirements. We
do not reach X’s additional arguments that the order violates the
First Amendment and that the district court improperly relied
on ex parte evidence below.
I
A
The Stored Communications Act protects the privacy of
user data held by electronic communication service providers
(like X), including by regulating government access to that
data. See S. Rep. No. 99-541, at 3 (1986). To that end, the Act
generally prohibits service providers from “divulg[ing]” the
“contents” of any “communication” exchanged or stored on
their platforms. 18 U.S.C. § 2702(a)(1)–(2); cf. id. § 2702(b)
(describing “[e]xceptions”). It also generally prohibits
providers from “divulg[ing]” user “record[s].” See id.
§ 2702(a)(3); cf. id. § 2702(c) (describing “[e]xceptions”). The
Act does, however, permit release to the government of a

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limited category of user records—such as biographical account
information or associated IP addresses—pursuant to subpoenas
and other legal process. See id. §§ 2702(c)(1), 2703(c)(2).
Under the Act, government requests for user
communications and user records are presumptively public.
When the government seeks a user’s data, the service provider
is typically allowed to notify that user (and the government is
sometimes required to do so). See id. § 2703(b), (c).
Section 2705(b) spells out an exception to that
presumption. That provision authorizes the government to
apply for a court order prohibiting providers from disclosing
subpoenas, warrants, or court orders for customer records. Id.
§ 2705(b). A court shall issue such a nondisclosure order “if it
determines that there is reason to believe” disclosure “will”
prompt “(1) [danger to] physical safety . . . ; (2) flight from
prosecution; (3) destruction of or tampering with evidence; (4)
intimidation of potential witnesses; or (5) [other actions]
seriously jeopardizing an investigation or unduly delaying a
trial.” Id.
B
On December 11, 2023, the U.S. Attorney for the District
of Columbia applied to a magistrate judge for a Section 2705(b)
nondisclosure order. The government did not have any
particular subpoena or subpoenas in hand when it submitted
that application. Instead, it asked for authority to attach a
nondisclosure order to any of the many subpoenas it might issue
in one investigation over the next year.
That same day, the magistrate judge granted the
government’s request via two related orders. The first was a
generic Section 2705(b) nondisclosure order commanding the
unspecified “recipient of the attached subpoena” not to disclose
the existence of that subpoena. J.A. 11. The second order—
which we will call an “authorizing order”—outlined how the
government was permitted to use that nondisclosure order. The

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authorizing order permitted the government to attach the
nondisclosure order to all subpoenas for user records issued in
connection with a specified investigation over the next year. It
also required the government to find, for “each and every
subpoena to which the [nondisclosure o]rder is attached,” that
“disclosure of the existence of th[at] subpoena would result in
potential target(s) attempting to evade apprehension, or destroy
or encrypt evidence, or otherwise seriously jeopardizing the
investigation.” S.A. 2. The authorizing order thus effectively
required the government to decide—before attaching the
nondisclosure order to any given subpoena—that disclosure of
the subpoena would risk one of the harms listed in Section
2705(b).
On January 5, 2024, the government served X with a grand
jury subpoena for records associated with two users’ profiles.
The government attached the nondisclosure order to the
subpoena, prohibiting X from disclosing the subpoena’s
existence. X moved to vacate or modify the nondisclosure
order, arguing that Section 2705(b) did not authorize the order
and that the order violated the First Amendment.
The district court found that the order was statutorily
authorized and constitutional. In reaching its decision, the
district court relied on evidence submitted by the government
ex parte and largely declined X’s request that the government
produce those ex parte submissions for X’s review.
X appealed, challenging both the district court’s decision
and its reliance on ex parte documents.
II
We have jurisdiction to review the district court’s denial of
X’s motion to vacate or modify the nondisclosure order.
To start, the district court’s denial was a final decision that
we may review under 28 U.S.C. § 1291. A final decision “ends
the litigation on the merits and leaves nothing for the court to

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do but execute the judgment.” Quackenbush v. Allstate Ins.
Co., 517 U.S. 706, 712 (1996) (citation modified). Here, the
litigation centered on only one issue: the validity of the
nondisclosure order. And the district court’s opinion
conclusively resolved that issue, ruling that the order was
permissible. No other action related to the court’s orders or the
underlying subpoena is still pending before the district court.
The district court’s denial thus ended the litigation on the merits
and qualifies as a final decision.1
We also possess jurisdiction even though, as both parties
agree, the case became moot while this appeal was pending.
One month after X submitted its opening brief, a magistrate
judge granted the government’s motion to vacate the
nondisclosure order. X is thus free to disclose the grand jury
subpoena, including to the users whose data the government
had requested. It is therefore “impossible for [us] to grant any
effectual relief” to X, and so the case is now moot. Decker v.
Nw. Env’t Def. Ctr., 568 U.S. 597, 609 (2013) (citation omitted);
see also In re Sealed Case, 77 F.4th 815, 826 (D.C. Cir. 2023).
Both parties nonetheless contend that at least some aspects
of this dispute fall within the “capable of repetition yet evading
review” exception to mootness. We agree.
Under that exception, a court may consider an otherwise-
moot dispute where (1) “the challenged action” endured too
briefly “to be fully litigated,” and (2) there is “a reasonable
expectation that the same complaining party [will] be subjected
to the same action again.” J. T. v. District of Columbia, 983
1 Our court relied on the collateral-order doctrine to justify
review of a similar order in In re Sealed Case, 77 F.4th 815, 825–26
(D.C. Cir. 2023). The parties here agree that the collateral-order
doctrine applies. As discussed above, however, this dispute is not
collateral to any ongoing controversy between the parties, so it is
reviewable without resort to the collateral-order doctrine.

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F.3d 516, 523 (D.C. Cir. 2020) (citation omitted). This case
meets both requirements.
The court’s orders were in force for only six months and
were set to expire after one year. Either period was too fleeting
for litigation to run its course. See In re Sealed, 77 F.4th at 827
(noting that we have generally “considered an order of less than
two years’ duration too short to be fully litigated” (citation
modified)).
X can also reasonably expect to face another nondisclosure
order based on an authorizing order of this kind. X states that
it “receives thousands of subpoenas, court orders, and warrants
each year for [its] users’ information,” many of which are
covered by nondisclosure orders. Appellant’s Brief 7–8; see
also In re Sealed, 77 F.4th at 827 (deeming X’s claims regarding
nondisclosure order capable of repetition, as X “previously has
received, and challenged, nondisclosure orders attached to
subpoenas”). The government acknowledges it is likely to
again request broad authorization to serve nondisclosure orders
like this one on service providers like X. The government’s
brief, for example, agrees that much of this case is capable of
repetition because “[i]t is sufficiently likely that the
government will rely on multiple-subpoena, multiple-provider
nondisclosure orders in the future, as it has in the past.”
Appellee’s Brief xii. The government even calls this
authorizing order “illustrative.” Id. at 39. We therefore have
jurisdiction to decide whether a court may grant the government
authority to use a nondisclosure order in the way it did here.
Although we possess jurisdiction, the government
contends that we cannot consider some of X’s claims for
another reason: X needed (but lacked) a statutory cause of
action to challenge the nondisclosure order on
nonconstitutional grounds in district court. See id. at 31–32.
The government did not raise this objection below and has
offered no explanation for its failure to do so, so this argument
is forfeited. See Keepseagle v. Perdue, 856 F.3d 1039, 1054

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(D.C. Cir. 2017). Though we do not resolve the issue, we note
our skepticism of the government’s position. On the
government’s view, it seems that no one could ever ask a court
to review a nondisclosure order for compliance with Section
2705(b). And the government identifies no analogous
precedent suggesting that a cause of action is required under
circumstances like these: where the government initiates a legal
proceeding, the court issues an order in that proceeding, the
government applies that court order against a party, and the
party then asks the court to revisit its statutory authority to issue
the order. We therefore proceed to the merits of X’s challenge.
III
The court did not comply with Section 2705(b) of the
Stored Communications Act in this case.
Section 2705(b) states that “[t]he court shall enter” a
nondisclosure order only “if it determines that there is reason
to believe that notification of the existence of the warrant,
subpoena, or court order will result in” one of the statutorily
specified harms. 18 U.S.C. § 2705(b). The statute’s text thus
requires that a court make a “reason to believe” determination
for any subpoena (or other legal document) covered by its order.
See id. Neither party disputes this straightforward reading.
Because the court must find “reason to believe” that
disclosure of each covered subpoena “will result” in harm, the
nature of the required analysis turns on the scope of the court’s
order. If the order covers just one subpoena that is before the
court, the inquiry is straightforward: The court must find
reason to believe disclosing that subpoena will result in a
statutory harm. If the order covers multiple subpoenas, though,
the court must make a determination that addresses all those
subpoenas. Similarly, if the order applies to future,
hypothetical subpoenas, the court ordinarily must identify the
types of subpoenas to which its order can apply so it can explain

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why it has reason to believe disclosure of those potential
subpoenas will cause harm.
The authorizing order here had two unique features
relevant to the required analysis: It permitted the government
to apply the nondisclosure order prospectively to unidentified
subpoenas, and to apply the nondisclosure order to subpoenas
directed at a wide and unpredictable range of accounts. To
comply with Section 2705(b), then, the court needed to make a
“reason to believe” determination that accounted for a vast
array of potentially covered subpoenas.
Consider the authorizing order’s features, and their impact
on the “reason to believe” analysis, in turn. First, the
authorizing order applied prospectively, allowing the
government to use the nondisclosure order for a full year. The
magistrate judge thus needed to explain why she had “reason to
believe” that disclosure of any covered subpoena potentially
issued during the next year “will result” in harm. That
determination differs from the analysis required to issue a
nondisclosure order that can be attached only to an existing
subpoena. For an existing subpoena, the magistrate judge can
base her “reason to believe” determination on the facts as they
were when the government submitted its application. But facts
change. Over the next year, the public could learn of the
government’s investigation to an extent that makes the
nondisclosure order unnecessary. See, e.g., In re Sealed, 77
F.4th at 825. Or the target of the subpoena or investigation
could be taken into custody or pass away, eliminating any risk
that the target would destroy documents in their possession or
flee upon learning of the investigation. As a result, to make the
statutory finding, the court would need to give not only “reason
to believe” that disclosure presently risks harm, but also
“reason to believe” that risk of harm would still exist for a
subpoena issued many months later.
Second, the authorizing order provided no meaningful
limit on the potential targets of the future subpoenas. It

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permitted the government to attach the nondisclosure order to
any subpoena for user records of any account with any service
provider that it decided was relevant to its investigation. Thus,
the government could attach the nondisclosure order not only
to requests for the data of the primary targets of the
investigation, but also (for example) to requests targeting those
who played a merely peripheral role in the scheme. Moreover,
because the authorizing order’s scope was dictated in part by
the reach of the government’s investigation, it would be
difficult for a court to predict whose accounts might be
subpoenaed. After all, the government, not the court, directs
the scope of a grand jury investigation. See United States v.
Williams, 504 U.S. 36, 48 (1992). And the government sought
this broad authority so that, as its investigation evolved, it could
more quickly forbid disclosure of unforeseen subpoenas
without coming back to the court. To satisfy the statute, then,
the court needed to acknowledge the potential variety in the
subpoenas to which the government could attach the
nondisclosure order. Only then could it have given a “reason
to believe” that disclosure of that full range of subpoenas “will
result” in harm—including subpoenas that the government
could not foresee when it requested this authority.
Given these characteristics of the authorizing order, it
would be exceedingly difficult for a court to reasonably predict
what subpoenas might be covered, much less offer a “reason to
believe” that disclosure of all those subpoenas “will result” in
harm. In any event, the court certainly did not make the
required determination here.
The magistrate judge’s determination amounted to two
lines: The judge found “reasonable grounds to believe that
disclosure of such subpoenas will result in flight from
prosecution, destruction of or tampering with evidence,
intimidation of potential witnesses, and serious jeopardy to the
investigation.” S.A. 1. And issuance of an “omnibus Order”
was “warranted,” she said, “based on the nature of the criminal

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activity, the volume of expected subpoenas, and the burden that
separate applications would pose.” Id.
That analysis does not suffice. The magistrate judge did
not address how the court’s “reason to believe” applied to
subpoenas that might be issued months in the future. Nothing
suggests that the judge grappled with the potential variety in the
subpoenas, including the range of targets, that her orders might
cover. And the judge never explained how her “reason to
believe” applied to each of those subpoenas.
The government has little to say in response. It does not
argue that the magistrate judge made the findings the statute
requires. The government instead says that the orders were
validly issued because the court required the government to
make those findings. The government emphasizes the
authorization order’s requirement that, before the
nondisclosure order could be attached to a future-issued
subpoena, the government needed to evaluate whether
“disclosure of the existence of the subpoena would result in
potential target(s) attempting to evade apprehension, or destroy
or encrypt evidence, or otherwise seriously jeopardizing the
investigation.” S.A. 2.
But that provision only confirms the statutory violation.
The statute requires “[t]he court” to “determine[]” that
disclosure of the subpoena’s existence “will result in” harm. 18
U.S.C. § 2705(b) (emphasis added). The authorizing order,
though, seems to have outsourced to the government the very
evaluation that Congress assigned to the court.
In sum, the court was required to find reason to believe that
a harm enumerated in Section 2705(b) will arise from
disclosure of any subpoena potentially covered by the
nondisclosure order. We have no occasion to provide a precise
blueprint for what form those findings must take when a court
prospectively authorizes use of a nondisclosure order with
future subpoenas, as it did here. But to find that disclosure of

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each subpoena (or perhaps appropriate categories thereof) will
result in a Section 2705(b) harm, a court must at least match its
required statutory findings to the breadth and variety of
potential subpoenas to which its nondisclosure order could
apply. Here, we hold that the court did not make the required
finding before issuing these orders and thus did not conform to
Section 2705(b).
Our holding, however, is narrow. Although X has raised
substantial arguments that the statute bars all orders purporting
to prospectively authorize the government to attach a
nondisclosure order to unissued subpoenas, we need not resolve
those categorical arguments here. To be sure, we are skeptical
that a court could intelligibly make the determination Section
2705(b) requires for any prospective order as broad as this one.
But we cannot rule out the possibility that, in another case, the
government might seek a prospective order with clearer
limitations or other features that could allow a court to make
the requisite findings.
We also clarify one additional point. Much of the parties’
briefing focused on whether Section 2705(b) permits the
government to seek a single nondisclosure order that could be
attached to multiple subpoenas. As a statutory matter, it is not
inherently problematic for a court to use a single order to
mandate nondisclosure of multiple subpoenas. As X concedes
in its reply brief, an “order that analyzed and applied to
multiple, existing subpoenas presented to the magistrate could
be lawful.” Reply Brief 5. This nondisclosure order violates
the statute not because it applies to multiple subpoenas, but
because the court failed to make the required “reason to
believe” determination for those subpoenas.
IV
In light of our statutory ruling, we decline to reach X’s
alternative and independent argument challenging the
nondisclosure order on First Amendment grounds. See In re

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Leopold, 964 F.3d 1121, 1126–27 (D.C. Cir. 2020) (noting that,
per “longstanding principle[s] of judicial restraint,” we “avoid
unnecessarily passing on a constitutional question of first
impression” where appellants “can receive all of the relief they
request” on alternative grounds (citation modified)).
We also do not reach X’s claim that the district court
improperly relied on ex parte materials in upholding the order.
Our statutory ruling renders that dispute irrelevant. The order
was invalid regardless of whether it was lawful for the district
court to rely on ex parte evidence.
V
The district court’s judgment is reversed.
So ordered.

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