Opinion

United States
FISCR 20-01
In re Opinions & Orders by the FISC
Foreign Intelligence Surveillance
Court of Review
APR 2 4 2020 f>t-.{ 1.'0 ~
3J n tbe 	LeeAnn Flynn Hall, Cieri< of Court
Wniteb ~tates jforeign Jlntelligence
~urbeillance QC:ourt of l\ebietu
IN RE OPINIONS & ORDERS BY THE FISC ADQRESSING
BULK COLLECTION OF DATA UNDER THE
FOREIGN INTELLIGENCE SURVEILLANCE ,ACT
Docket No . FISCR 20-01
On Petition for Review of a Decision of the
United States Foreign Intelligence Surveillan·ce Court
DECIDED: APRIL 24, 2020
Before: CABRANES, TALLMAN, and SENTELLE, Judg es.
Patrick 	Toomey, 	Brett 	Max 	Fauman,
American Civil Liberties Union Foundation,
New 	York, 	NY; 	Arthur 	B. 	Spitzer, 	Scott
Michelman, Michael Perloff, American Civil
Liberties Union Foundation of the District of
Columbia, Washington, D.C. ; Dav id Schulz,

PER CURIAM:
Charles 	Crain, 	Media 	Freedom 	&
Information Access Clinic, Abrams Institute
at Yale Law School, New Haven, CT; Alex
Abdo, 	Jameel 	Jaffer, 	Knight 	First
Amendment 	Institute 	at 	Columbia
University, for Petitioners.
John 	C. 	Demers, 	J. 	Bradford 	Wiegmann,
Melissa 	MacTough, 	Jeffrey 	M. 	Smith,
National 	Security 	Division, 	United 	States
Department of Justice, Washington, D.C., for
United States of America.
On February 11, 2020, the United States Foreign 	Intelligence
Surveillance 	Court 	(the 	"FISC") 	(Rosemary 	M. 	Collyer, 	Judge)
dismissed a motion filed by the American Civil Liberties Union, the
American Civil Liberties Union of the District of Columbia 1, and the
Media 	Freedom 	and 	Information 	Access 	Clinic 	(jointly, 	the
"Movants") 2 for the release of certain opinions and orders by the FISC
1 The name that was used in the FISC was the "American Civil Liberties
Union of theN ation's Capital."
2 Although the parties filing the Petition for Review or, in the alternative,
for a Writ of Mandamus are technically "Petitioners" before this Court, we will
refer to them as "Movants" throughout this opinion to ensure uniformity and
consistency with our earlier opinions and orders on this matter .
2

addressing the bulk collection of data 3 under the Foreign Intelligence
Surveillance Act ("FISA"). 4 In a thoughtful and careful opinion, the
FISC rejected the Movants' claim that the withholding of redacted,
non-public material classified by the Executive Branch violates the
Movants' First Amendment right of public access. 5 The Movants now
seek to appeal that decision to our Court in the form of a Petition for
Review 	(the 	"Petition"); 	in 	the 	alternative, 	they 	seek 	a 	Writ 	of
Mandamus.
For the reasons stated below, we decline to consider the merits
of 	the 	Movants' 	Petition 	and 	DISMISS 	the 	Petition 	for 	lack 	of
jurisdiction.
BACKGROUND
On 	November 	7, 2013, the Movants filed 	a motion 	seeking
disclosure of the FISC's opinions addressing the Government's bulk
collection of data under the FISA (the "Motion"). The Government
identified four such opinions. Two of the opinions had been made
public in redacted form by the FISC prior to the Movants' Motion. 6 The
other two opinions were released subsequently, also in redacted form,
3 See In re Opinions & Orders of this Court Address ing Bulk Coll ection of Data
Und er th e For eign Intellig ence Sur ve illan ce Act (" In re Bulk Coll ec tion " ), No . Misc. 13-
08, 2020 WL 897659, at *1 , *16 (Foreign Intel. Surv. Ct. Feb. 11 , 2020).
4 50 u .s.c. §§ 1801-1885c.
5 See In re Bulk Coll ection, 2020 WL 897659, at *7-16.
6 See id . at *1.
3

by the Government. 7 The material that has been redacted in these four
opinions 	consists 	of highly sensitive information that, following 	a
declassification 	review, 	the 	Executive 	Branch 	concluded 	remains
classified and, if released, could be damaging to our country' s national
security.8
On January 25,2017, then-Presiding Judge Rosemary M. Collyer
dismissed the Motion on the basis that the Movants lacked standing
under Article III of the Constitution to seek public disclosure of the
redacted, classified material in the FISC opinions. 9 On November 9,
2017, the FISC, sitting en bane, concluded otherwise by a vote of six to
fi ve. 10 The FISC held that the Movants have Article III standing to
bring their First Amendment claim and thus vacated the dismissal. 11
On January 5, 	2018, the FISC 	certified 	the question 	of 	the
Movants' Article III standing to this Court, 12 and on January 9, 2018,
7 See id . at *2.
8 See id. at * 1.
9 See In re Opinions & Ord ers of this Cour t Ad dr ess ing Bul k Coll ec tio n of Datil
Under th e Fo re ign Intellige nce Sur ve ill ance Act, No . Misc. 13-08, 2017 WL 427591
(F oreign Intel. Surv. Ct. Jan . 25, 2017).
10 See In re Opinions & Ord ers of this Cou rt Addressing Bul k Co ll ec tion of Datil
Und er the Fo reig n Intellig en ce Su rve illan ce Act, No . Misc. 13-08, 201 7 WL 5983865
(Foreign Intel. Su rv. Ct. Nov . 9, 2017) (en bane).
11 Id . at *9.
12 See In re Opinions & Or de rs of this Cour t Addressing Bu lk Coll ec tio n of Datil
Und er the Foreign Intell igence Su rvei llan ce Ac t, No. Misc. 13-08, 201 8 WL 396244, at *1
(Foreign Intel. Sur v. Ct . Jan . 5, 201 8).
4

we 	accepted the 	certification. On March 16, 2018, we 	issued 	our
decision 	answering 	the 	certified 	question 	by 	agreeing 	with 	the
standing analysis of the majority of the en bane FISC and concluding
that the Movants had established their constitutional standing to raise
their First Amendment claim. 13 Specifically, in answering the certified
question, we noted that the "denial of access to the redacted material
constitutes an injury in fact" and that the Movants thus satisfied the
irreducible minimum of Article III standing. 14 We also emphasized
that we did not reach, much less decide, any other question beyond
the 	Movants' 	standing, 	including 	whether 	"other 	jurisdictional
impediments exist to this challenge" or whether the Movants could
succeed 	on 	the 	merits 	of 	their 	First 	Amendment 	claim. 15 	These
remaining 	questions, 	including 	the 	existence 	of 	subject 	matter
jurisdiction over the Motion, were left for the FISC to address on
remand.
On remand by the FISC en bane, on February 11, 2020, Judge
Collyer issued an Opinion concluding primarily that the FISC "has
subject 	matter jurisdiction 	over 	the Motion" 	and 	that 	"the 	First
13 In re Certification of Qu es tion s of La w to th e For eign Intell ige n ce Surve illance
Court of Review (" In re Certification"), No . FISCR 18-01,2018 WL 2709456 (Foreign
Intel. Surv . Ct . of Rev . Mar . 16, 2018).
14 Id . at *4 (explaining that a "plaintiff must satisfy three mmrmum
requirements: First, the plaintiff must have suffered an ' injury in fact.' Second, there
must be a causal connection between the injury and the conduct complained of.
Third, it must be likely that the injury will be redressed by a favorable decision"
(citing Lujan v. Def s. ofWildlife, 504 U.S. 555, 560--{,1 (1992)).
15 Id. at *7 .
5

Amendment does not confer a qualified right of public access to the
material sought 	by 	the Movants ." 16 	Accordingly, 	she 	rejected 	the
Movants' First Amendment 	claim and dismissed 	the Motion. 	This
appeal followed.
DISCUSSION
It is beyond dispute that all federal courts, including our own,
"are courts of limited jurisdiction." 17 Federal courts "possess only that
power 	authorized by Constitution 	and statute, which is not to be
expanded 	by judicial decree." 18 	A lower 	federal 	court's power 	to
resolve legal disputes is limited in at least three independent 	and
equally 	important 	ways. 19 	Fir st, 	an 	action invoking 	our 	"judicial
Power" 	must 	involve 	a 	"Case[ 	)" 	or 	"Controvers[y]" 	within 	the
meaning of Article III of the Constitution 20 -a requirement that the
16 In re Bulk Coll ec tion, 2020 WL 897659, at *3 .
17 Kok ko n en v . Guardian Life Ins. Co . of Am., 511 U.S. 375, 377 (1994); see In re
Certificatio n, 2018 WL 2709456, at *4 (noting that we " ha ve held that the FISC's
authority and inherent secrecy is cabined by -and consistent with-Article III of
the Constitution" and that we "assume the FISC's jurisdiction is governed by
Article III, section 2, of the Constitution" (citing In re Seal ed Case, 310 F.3d 717, 731 ,
732 n.19 (Foreign Intel. Sur v. Ct. of Re v . 2002))).
18 Kokkonen, 511 U.S. at 377 (citations omitted ).
19 See Baker v . Carr, 369U.S. 186, 198(1962).
20 U.S. CONST . art. III, § 2 ("The judicial Power shall extend to all Cases, in
Law and Equity, arising under this Constitution, the Laws of the United States, and
Treaties made , or which shall be made, under their Authority; -to all Cases
affecting Ambassador s, other public Ministers and Consuls;- to all Cases of
admiralty and maritime Jurisdiction; to Controversies to which the Un ited States
6

Supreme Court has defined through various jurisdictional doctrines,
such as standing, 	ripeness, 	mootness, 	and the prohibition 	against
advisory 	opmwns. 	Second, 	the 	action 	must 	arise 	under 	the
Constitution, a law, or a treaty, of the United States, "or fall within one
of the other enumerated categories of Art[icle] III, § 2." 21 Third, the
action must be "described by any jurisdictional statute" 22 as the kind
of 	action 	that 	Congress 	intended 	to 	be 	subject 	to 	"a 	court's
adjudicatory authority." 23
It is this third limitation that is directly implicated here. Because
federal courts have an independent duty to ensure that jurisdiction
exists at all stages of a case, and because we must determine that we
shall be a Party;- to Controversies between two or more States;- between a State
and Citizens of another State;-between Citizens of different States,-between
Citizens of the same State claiming Lands under Grants of different States, and
between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.");
see Doremus v. Bd. of Ed. of Borough of Hawthorne, 342 U.S. 429, 434 (1952) ("[B]eca~
our own jurisdiction is cast in terms of 'case or controversy,' we cannot accept as
the basis for review, nor as the basis for conclusive disposition of an issue of federal
law without review, any procedure which does not constitute [a true case or
controversy].").
21 Baker, 369U.S . at198.
22 ld .
23 Eberhart v . United States, 546 U.S. 12, 16 (2005) (quoting Kontrick v. Ryan,
540 u .s. 443,455 (2004)).
7

have jurisdiction before proceeding to the merits of a claim, 24 we first
address our own authority to consider the Movants' Petition.
I.
At the crux of the instant appeal is the question of whether we
have been 	authorized by 	Congress 	to 	review 	the Movants' 	First
Amendment 	claim. In other 	words, 	we 	must 	decide 	whether 	the
Movants' Petition falls within the class of cases carefully delineated by
the FISA as within our authority as a court of appellate review. We
conclude that it does not.
We 	begin 	by 	recognizing 	the 	well-settled 	principle 	that
Congress has the exclusive authority to invest all courts inferior to the
Supreme 	Court 	"with jurisdiction 	... in 	the 	exact degrees 	and
character which to Congress may seem proper for the public good." 25
As creatures of Congress, all courts inferior to the Supreme Court,
including our own, are empowered to adjudicate only those disputes
prescribed by Congress in its "relevant jurisdictional statutes ." 26 If a
dispute is not of the kind that Congress has determined should be
adjudicated, we "have no business deciding it, or expounding the law
24 See St ee l Co. v. Citizens for a Better Env ' t, 523 U.S. 83, 94 (1998) ("Jurisdiction
is power to declare the law , and when it ceases to exist, the only function remaining
to the court is that of announcing the fact and dismissing the cause." (internal
quotation marks omitted)).
25 Ankenbrandt v. Richards, 504 U.S. 689, 698 (1992) (quoting Cary v. Curtis, 44
U.S. 236, 245 (1845) (other citations omitted)).
26 ld .
8

in the course of doing so." 27 That is especially so where it is clear from
the text of the relevant federal statute that Congress has considered
carefully the scope of the court's jurisdiction. 28
That is the case here. In comparison with other federal courts,
the nature of the FISC's work is strictly limited in scope. The FISC is
tasked primarily with "reviewing applications for surveillance and
other 	investigative 	activities 	relating 	to 	foreign 	intelligence
collection." 29 Equally limited, if not more so, is the work of our Court
of Review, which, like the FISC, is" a unique court" within the federal
judiciary and our system of government. 30
A.
The FISA clearly delineates the types of disputes that fall within
our 	appellate 	jurisdiction. 	Generally, 	the 	statute provides 	for 	the
creation of "a court of review which shall have jurisdiction to review
the denial of any application made under this chapter [36 of Title 50 of
the United States Code]." 31 More specifically, the statute provides that
27 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332,341 (2006) (making the
statement in the context of Article III's case-or-controversy requirement) .
28 Cf Nat. Res. Def Council v. Nat'[ Highway Traffic Safety Admin., 894 F.3d 95,
107 (2d Cir. 2018) ("The Supreme Court has made clear that, for a provision to
define a federal court's jurisdiction, there must be a' clear statement' from Congress
to that effect." (quoting Sebelius v. Auburn Reg'l Med . Ctr ., 568 U.S.145, 153 (2013)).
29 In reCertification, 2018 WL 2709456, at*l.
30 ld .
3l 50 u.s.c. § 1803(b).
9

the Court of Review "shall have jurisdiction to consider" a petition for
review of a decision by the FISC 32 on: (1) a FISA "production" 	or
"nondisclosure 	order" ; 33 	(2) "directives" 	issued 	in writing by the
Attorney General 	and the Director of National Intelligence 	to an
"electronic communication service provider" ;34 (3) orders approving
32 Id. § 1861(f)(3) Gurisdictional provision for appellate review of FISA
production and nondisclosure orders); id. § 1881a(i)(6)(A) Gurisdictional provision
for appellate review of a FISA directive); id. 	§ 1881aG)(4)(A) Gurisdictional
provision for 	appellate review of 	FISA 	certifications and procedures); 	id .
§ 1881b(f)(1) Gurisdictional provision for appellate review of an order approving
the targeting of a United States person reasonably believed to be located outside
the United States for the acquisition of foreign intelligence information utilizing
means that constitute electronic surveillance or the acquisition of stored electronic
data that requires an order under [Chapter 36 of Title 50], and conducted in the
United States); id . § 1881 c(e)(1) (jurisdictional provision for appellate review of an
order approving the targeting of a United States person reasonably believed to be
located outside the United States for acquisitions of foreign intelligence information
utilizing other means).
33 A "production order" is" an order to produce any tangible thing[, such as
books, records, papers, and other items] under[§ 1861]," which governs the access
to certain business records for foreign intelligence and international terrorism
investigations. Id. § 1861(f)(1)(A). A "nondisclosure order" is "an order imposed
under[§ 1861(d)]" to prohibit the disclosure that the Government has sought or
obtained tangible things pursuant to, 	for example, a production order. !d.
§ 1861(f)(1)(B). We note, however, that many of the provisions in§ 1861, including
those authorizing judicial review and nondisclosure orders, are no longer effective,
as they were subject to certain amendments that Congress allowed to expire on
March 15, 2020. As a result,§ 1861 now reads as it read on October 25, 2001. See
Pub. L. 116-69, Div. B, Title VII,§ 1703(a), Nov. 21,2019,133 Stat. 1143 (providing
that, effective March 15, 2020, with certain exceptions, this section was amended to
read as it read on October 25, 2001 ).
34 A "directive" refers to a governmental instruction provided in writing to
an electronic communication service provider to undertake certain actions relating
10

the "certification" and the "targeting, minimization, and querying
procedures" for "acquisitions" of non-United States persons abroad; 35
and (4) orders approving the targeting of United States persons abroad
to acquire foreign intelligence information. 36 The FISA also authorizes
our consideration of questions of law that are certified by the FISC in
certain circumstances.37
Furthermore, the FISA identifies the relevant parties that are
authorized to file a petition for review in our Court. It makes clear, for
example, that the Government may file 	a petition for review of a
decision 	or 	order 	by 	the FISC 	with 	respect 	to each 	of the 	four
enumerated 	categories 	mentioned 	above. 38 	In 	addition 	to 	the
Government, 	the FISA 	also 	authorizes 	"any person 	receiving" 	a
to the acquisition of foreign intelligence information under § 1881a(a). See id.
§ 1881a(i)(l). And an "electronic communication service pro vider" refers to a
"telecommunications carrier," "a provider of electronic communication service,"
"a provider of a remote computing service," " any other communication service
pro vider who has access to wire or electronic communications either as such
communications are transmitted or as such communications are stored," or "an
officer, employee, or agent" of the aforementioned entities. Id . § 1881(b)(4).
35 See id . § 1881a(g)-(h) (explaining the requirements for a "certification");
§ 1881a(d}-(f) (defining the various "procedures " for acquisitions under this
subsection).
36 See id. § 1881b(f)(l); id . § 1881c(e)(l).
37 See id. § 18030) (providing in relevant part that the FISC "shall certify for
[our] review . .. any question of law that may affect resolution of the matter in
controversy that the court determines warrants such review because of a need for
uniformity or because consideration by [us] would serve the interests of justice").
38 See ante , note 32 .
11

production 	or 	nondisclosure 	"order" 	(i. e. , 	the 	first 	enumerated
category) ,3 9 as well as an "electronic communication service provider"
receiving a "directive" (i .e ., the second enumerated category), 40 to file
a petition for review.
There can be no question that the Movants' Petition does not fall
within any of the categories of jurisdiction enumerated above. By the
same token, it is equally clear that the Movants are not one of the
petitioners authorized by Congress to seek review before our Court.
Instead, the Movants simply 	assert a constitutional violation with
respect 	to the 	withholding 	of information 	that the Executive has
deemed 	classified and that is contained in FISC opinions in closed
cases-cases 	in 	which the 	Movants 	were 	not 	a 	party. 	Although
Congress has empowered most other federal courts to consider claims
arising under the federal Constitution, 41 such as the Movants' First
Amendment claim, Congress did not do so here, and , we are not aware
of 	an y statutory basis 	that can support 	our 	jurisdiction over 	the
Movants' putative appeal.
B.
The Movants contend that the statute that establishes our Court ,
50 U.S.C. 	§ 1803(b), gives us jurisdiction over their Petition. 	That
39 Id . § 1861(f)(3). A " per s on " is defined as " an y individual, including any
officer or emplo yee of the Federal Gov ernment, or an y group, ent it y, association,
corporation , or foreign power ." Id. § 1801(m).
4o Id . § 1881a(i)(6)(A).
41 See 28 U .S.C. § 1331 .
12

statute provides, 	in relevant part, that "[t]he Chief Justice [of the
United States] shall publicly designate three judges, one of whom shall
be publicly designated as the presiding judge, ... who together shall
comprise a court of review which shall have jurisdiction to review the
denial of any application made under this chapter ." 42 The Movants assert
that their Motion is an "application" that "arose under 'this chapter'
because the FISC was created by, and issues 	opinions pursuant to
authority it receives from, the [FISA]." 43 The Movants misread the
provision.
1.
The phrase "application made under this chapter" in§ 1803(b)
generally refers to an application made by the Government ex parte
and 	in camera for foreign 	intelligence surveillance. 	We 	reach this
conclusion for at least four reasons.
First, because we are a court of review, the term "application" in
§ 1803(b) must be construed in light of how the same term is used in
the provision that establishes the court that denies the applications
that we are authorized to review. Section 1803(a)(l) provides for the
creation of the FISC and states in relevant part that the FISC "shall
have jurisdiction to hear applications for and grant orders approving
electronic surveillance." 44 Section 1803(a)(l) also makes clear that if the
42 50 U.S.C. § 1803(b) (emphasis added).
43 Movants ' Br. at 3.
44 50 U .S. C. § 1803(a)(l) .
13

FISC "denies an application for an order authorizing electronic surveillance
under 	this chapter," 	the FISC "shall provide immediately 	for the
record a written statement of each reason for [its] decision and, on
motion of the United States, the record shall be transmitted, under seal,
to the court of review established in subsection (b)." 45
Because § 1803(b) refers to the "review [of] the denial of any
application under this chapter" 46 and the FISC is authorized to deny
the application in the first instance, it follows 	that our 	court has
jurisdiction to review the denial of those applications that the FISC has
the authority to deny under § 1803(a) 47 -namely, an application for
"surveillance." 48 After all, the "chapter" to which § 1803(b) refers is
chapter 36 of Title 50 of the United States Code, which is entitled
"Foreign Intelligence Surveillance."
45 Id. (emphasis added) .
46 ld. § 1803(b).
47 As the Movants concede, the FISC did not rely on any FISA provision to
establish its own jurisdiction over the Motion. To the contrary, the FISC noted that
the "Movants' First Amendment right of access claim falls outside the jurisdictional
pro visions" oftheFISA, including§ 1803(a)(l).ln re Bulk Coll ec tion, 2020WL897659,
at *3 (relying instead on the doctrine of ancillary jurisdiction).
48 By " surveillance," we do not refer exclusively to "electronic surveillance,"
but also to the various investigative techniques authorized under the FISA,
including "physical searches ." In other words, we use the term "surveillance " in
the same manner as it is used to identify chapter 36 of Title 50 of the United States
Code.
14

Second, as the text of§ 1803(b) makes clear, our Court can ~nly
review the "denial," not the grant, of an "application." 49 That limited
authorization reinforces our conclusion that the term "application"
refers to applications for surveillance, and not to any request for relief
relating to the FISC. Indeed, Congress's reason for authorizing review
only in cases where an" application" is denied by the FISC is clear from
the text and structure of the statute: applications are made ex parte and
in camera by the Government. As a result, only the Government would
have the statutory right to appeal its denial. If the application were
granted, the Government would have nothing to appeal.
Third, the use of the term "application" in another subparagraph
of § 1803, which authorizes the appointment of an "amicus curiae,"
further 	demonstrates 	that 	the 	term 	"application" 	refers 	to 	an
application 	for 	surveillance under 	the FISA. 	Section 	1803(i)(2)(A)
requires the designation of" an individual ... to serve as amicus curiae
to assist . . . in the consideration of any application for an order or
review that, in the opinion of the [FISC or this Court], presents a novel
or significant interpretation of the law, unless the [FISC or this Court]
issues a finding that such appointment is not appropriate." 50 In other
words, the FISA requires the appointment of an amicus or a finding
that the appointment is not appropriate only where there is: (1) an
49 50 u.s.c. § 1803(b).
so 50 U.S. C.§ 1803(i)(2)(A) (emphasis added) .
15

"application for an order" or an "application for ... review," (2) that
"presents a novel or significant interpretation of the law." 51
Section 1803(i)(2)(A) is premised on the principle that, since the
litigation involving an "application" for electronic surveillance is ex
parte, the FISC and this Court could benefit from having someone who
can provide an independent comment on the Government's asserted
interest 	in 	intelligence 	collection. 	Accordingly, 	that 	principle-
namely, that having an amicus could be beneficial in light of the ex
parte character of an application for electronic surveillance-further
reinforces our conclusion that the term "application" in § 1803 refers
to an application for surveillance, and not just any request for relief
relating to the FISC. 52 If the FISC or this Court needs assistance from
an amicus in resolving an issue 	of law that does 	not involve an
"application" 	for 	surveillance, 	that 	designation 	could 	be 	made
pursuant to § 1803(i)(2)(B)'s authorization to appoint an amicus "in
51 Id. Such" application for an order or review" could include, for example,
the Government 's efforts to secure an order approving the targeting of United
States persons abroad to acquire foreign intelligence information, se e id. §§ 1881b,
1881c, or to obtain the review and approval of "certification" and "procedures'' for
" acquisitions" ofnon-UnitedStatespersonsabroad, id . § 1881a.
52 For this same reason, the Movants' argument that we are required under
§ 1803(i)(2)(A) to designate an individual or organization to serve as ami cus cur iae
in this case, se e Movants' Br. at 2 n.l , lacks merit. Because the Movants' Petition is
not 	an 	" application" 	subject 	to 	our 	review , 	the 	mandatory -appointment
requirement of§ 1803(i)(2)(A) is not triggered here .
16

any instance [that the FISC or this Court] deems appropriate or, upon
motion," regardless of whether it involves an "application" or not. 53
Fourth, 	the 	term 	"application" 	is used 	in 	other sections 	in
chapter 36 also to refer to ex parte and in camera applications made by
the Government for surveillance. For instance, § 1804 describes the
Government's 	applications 	for 	an 	order 	by 	the 	FISC 	approving
electronic 	surveillance.54 	And 	§ 1823 describes 	the 	Government's
applications for an order by the FISC approving physical searches. 55
53 50 U.S.C. § 1803(i)(2)(B). Our earlier designation of Professor Laura
Donahue as amicus curiae in the case that certified the question of the Movants'
Article III standing-a fact relied on by the Movants in their brief, see Movants' Br.
at 2 n.1 (citing Order at 2, In re Certification, FISCR No. 18-01 (Foreign Intel. Surv.
Ct. of Rev. Jan. 9, 2018))-is consistent with our interpretation of the text. That
designation was made pursuant to § 1803(i), which includes the discretionary-
appointment provision in§ 1803(i)(2)(B).
We acknowledge that the FISC invoked§ 1803(i)(2)(A) to appoint Professor
Donahue to assist in its disposition of the Movants' Motion, see0rderat2,Jn re Bulk
Collection, No. Misc. 13-08 (Foreign Intel. Surv . Ct. May 1, 2018) . That single citation
of§ 1803(i)(2)(A), however, does not undermine our foregoing analysis of the text
and structure of the FISA. To be sure, the citation was likely inadvertent in light of
the fact that the FISC did not conclude that the Movants' Motion was an
11
application" for purposes of§ 1803 and, instead, relied on the doctrine of ancillary
jurisdiction to adjudicate themeritsof the Movants' claim. And, to be sure, the same
appointment could have beenmadebythe FISC pursuant to§ 1803(i)(2)(B), so there
was nothing improper about the FISC's designation of Professor Donahue in that
instance.
54 See 50 U.S. C.§ 1804 (entitled 11
Applications for Court Orders" relating to
electronic surveillance).
55 See id. § 1823 (entitled 11
Application for Court Order" relating to physical
searches).
17

2.
By contrast, the Movants' reading of§ 1803(b) produces at least
three untenable consequences. First, under the Movants' reading, the
Court of Review would be empowered to review rulings on the merits
that the FISC would not be empowered to make . The Movants argue
that although 	the 	statute 	that 	establishes 	the FISC, 	§ 	1803(a)(l),
authorizes that court to adjudicate only applications for 	electronic
surveillance, 	the 	statute 	that 	establishes 	this 	Court, 	§ 	1803(b),
authorizes our review of any request for relief that relates to the FISC
or the FISA. 56 In other words, the Movants suggest that while the FISA
authorizes 	the FISC 	to 	undertake the 	limited 	task of 	considering
applications 	for 	surveillance, 	the 	FISA 	authorizes 	our 	Court 	to
undertake the comparatively broader task of reviewing the denial of
any request for relief relating to the FISC or the FISA-including a
request 	that the FISC would lack the statutory authority to deny,
whatever the request may be. This creates an anomalous situation: our
reviewing 	authorit y 	under 	the 	FISA 	would 	exceed 	the 	FISC's
adjudicatory authority under the same statute, turning our court into
something more than just a specialized court of review.
56 See Movants ' Br. at 3 (noting that the statute specifying the FISC's
jurisdiction refers to " applications for electronic surveillance," whereas the statute
specifying the Court of Review's jurisdiction refers to " any application" made
under the FISA, which includes a request for " access to FISC opinions" given that
the "FISC was created by, and issues opinions pursuant to authority it receiv es
from , the [FISA]").
18

Second, under the Movants' reading, other provisions in§ 1803
would be rendered meaningless. For example, the FISA requires an
amicus designated by the FISC or our Court to have access to" any legal
precedent, application, certification, petition, motion, or such other
materials that the court determines are relevant to the duties of the
amicus curiae." 57 If the Movants' Motion to the FISC or the Petition to
our Court were considered an "application" for purposes of§ 1803, as
the Movants contend, then Congress would not have identified the
term 	"application" 	as 	a separate 	category 	from 	other 	terms 	like
"petition" or "motion." Only by interpreting the term "application" as
we 	do, 	could 	terms 	like 	"petition" 	and 	"motion" 	preserve 	their
ordinary meaning.
Third, 	under 	the Movants' 	reading, 	some, 	if not all, of the
specific jurisdictional 	bases 	provided 	in the FISA 	also 	would 	be
rendered 	meaningless or superfluous. 	In fact, it would make little
sense for Congress to carefully delineate specific types of decisions
that could be appealed by carefully delineated parties-as it did in
sections 1861, 1881a, 1881b, and 1881c 58 -if any other person could
appeal the denial of any request that relates to the FISC or the FISA.
c.
The Movants also argue that" Article III appellate courts [have]
fashioned multiple procedural mechanisms for non-parties to assert
s7 50 U.S. C.§ 1803(i)(6)(A)(i).
ss See a nte, note 32.
19

their constitutional access right in the first instance and to later obtain
appellate review." 59 One of those mechanisms is the "collateral order
doctrine, which has supplied authority to entertain appeals in other
public access cases in the federal appellate courts." 60 In those cases, the
doctrine was invoked to review an interlocutory order disposing of an
important collateral issue prior to the final resolution of the case-e.g.,
access to records in an ongoing criminal case. 61
That doctrine has no application here. 	Among other things,
there is no question that the non-specialized federal courts of appeals
have jurisdiction over appeals of final and interlocutory decisions by
district courts, 62 which are, in turn, empowered 	to consider claims
arising under the First Amendment to the Constitution. 63 That is not
true of specialized courts like the FISC or our Court. 64 The collateral
59 Movants' Br. at 5 (identifying "direct intervention," "collateral order
doctrine," and the "writ of mandamus" as examples of procedural mechanisms
used to consider claims for access to records in criminal cases) (collecting cases).
60 Id. at4 (collecting cases).
61 See, e.g., In re N.Y. Times Co ., 828 F. 2d 110, 113 (2d Cir. 1987) (explaining
that the collateral order doctrine applied "since deferral of a ruling on appellants'
claims until a final judgment in the underlying criminal prosecution is entered
would effectively deny appellants much of the relief they seek, namely, prompt
public disclosure of the motion papers") .
62 See 28 U.S.C. § 1291 ("Final Decisions"), id . § 1292 ("Interlocutory
Orders").
63 See id. § 1331 ("Federal-Question Jurisdiction").
64 Our Court is not a "court of appeals" for purposes of 28 U .S.C. § 1291 ,
which is the subject of the collateral order doctrine. Cf 50 U.S.C. 1803(k)(1)
20

order doctrine, or any other judicially-created procedural mechanism,
cannot be used to manufacture subject matter jurisdiction where none
exists.
II.
To salvage their Petition, the Movants invoke the common-law
doctrine of ancillary jurisdiction as an alternative jurisdictional basis
for 	our 	review 	of 	the 	dismissal 	of 	their 	Motion. 	Under 	that
discretionary 	doctrine, 	"a 	federal 	court 	may 	exercise 	ancillary
jurisdiction '(1) to permit disposition by a single court of claims that
are, in varying respects and degrees, factually interdependent; and (2)
to enable 	a 	court 	to function 	successfully, 	that is, 	to 	manage its
proceedings, vindicate its authority, and effectuate its decrees."' 65 This
"ancillary" common-law authority, while not necessarily confirmed or
conferred by Congress, 66 is said to be inherent in the courts' judicial
power derived from Article III of the Constitution. 67 But because this
(providing that the Court of Review is a " court of appeals" for purposes of 28 U .S.C.
§ 1254, which authorizes review of a case by theSupremeCourtby writ of certiorari
or certification).
65 Pea cock v . Thomas,516 U.S. 349,354(1996) (quotingKokkonen,511 U.S . at
379-80).
66 To be sure, " Congress codified much of the common-law doctrine of
ancillary jurisdiction as part of 'supplemental jurisdiction' in 28 U.S. C.§ 1367."
Peacock, 516 U.S. at354n .5.
67 See United Stat es v. Hu dso n, 11 U.S. 32, 34 (1812) ("Certain implied powers
must necessarily result 	to our Court s of 	justice from 	the nature of their
institution." ); accord Roadway Exp., In c. v. Pip er, 447 U.S. 752, 764 (1980) ("The
21

authority lacks an explicit statutory basis and is therefore "shielded
from direct democratic controls," the Supreme Court repeatedly has
warned the inferior courts that this authority "must be exercised with
restraint and discretion," 68 and with "great caution ." 69
In the circumstances presented here, we decline to rely on any
"ancillary" authority to consider the Movants' Petition. As a Court of
Review 	of 	significantly 	limited 	powers 	carefully 	delineated 	by
Congress, we are especially reluctant-" cautio[ us)" in the admonition
of the Supreme Court7°- to consider issues beyond our jurisdictional
competence on the basis of a doctrine "that can hardly be criticized for
being overly rigid or precise." 71 The Movants' Petition simply does not
present a circumstance that warrants the exercise of our discretionary,
ancillary authority . The 	Movants have not 	been haled 	into 	court
against their will, nor do they seek to assert rights in an ongoing
action. 72 Nor is this an instance in which the application of our inherent
inherent powers of federal courts are those which 'are necessary to the exercise of
all others."' (quoting Hudson, 11 U .S. at 34)); see also Chamb ers v. NASCO, In c., 501
U.S. 32,58 (1991) (Scalia,J., dissenting).
68 Roadway Exp., 447 U.S. at 764.
69 Ex parte Burr, 22 U.S. 529,531 (1824).
7o Id .
71 Kokkonen, 511 U.S. at 379.
72 Ow en Equip . & Er ection Co . v . Krog er, 437U .S. 365,376 (1978) ("[A]ncillary
jurisdiction typically involves claims by a defending party haled into court against
his will, or by another person whose rights might be irretrievably lost unless he
22

judicial power is appropriate, let alone "necessary," to enforce one of
our own mandates or orders, 73 or to protect the integrity of our own
proceedings and processes. 74 Accordingly, we do not consider here, let
alone decide, questions that the Movants fear would not be reviewable
if their 	Motion 	were 	dismissed-sanctions 	imposed 	by 	the 	FISC
against 	"government 	officials 	for 	misconduct," 	or 	findings 	of
"contempt" 	by 	the 	Government 	or by 	electronic 	communication
service providers, 75 both of which are much more consistent with the
inherent authority recognized by the doctrine of ancillary jurisdiction.
Rather, 	here, 	the 	Movants 	filed 	a 	motion 	in 	a 	new
"miscellaneous" case76 seeking the disclosure of non-public material
could assert them in an ongoing action in a federal court."); accord Peacock,516 U.S.
at 355.
73 Hudson, 11 U.S. at 34 ("To fine for contempt-imprison for contumacy-
inforce the observance of order, &c. are powers which cannot be dispensed with in
a Court, because they are necessary to the exercise of all others ... ."); cf Young v.
United States ex rei. Vuitton et Fils S.A., 481 U.S. 787, 795-801 (1987) (recognizing the
courts' inherent authority to appoint private counsel to investigate and initiate
contempt proceedings for violation of an order); Young, 481 U.S. at 819-20 (Scalia,
J., concurring in judgment) (noting that a court's inherent powers include only
those "necessary to permit the courts to function" (emphasis added)).
74 Cf Chambers, 501 U.S. at 44-45 (explaining that among the various powers
of a federal court is the power "to vacate its own judgment upon proof that a fraud
has been perpetrated upon the court," to "bar from the courtroom a criminal
defendant who disrupts a trial," and "to fashion an appropriate sanction for
conduct which abuses the judicial process" (collecting cases)).
75 Movants ' Br. at 4.
76 In re Bulk Collection, No. Misc. 13-08.
23

which has been deemed classified by the Executive Branch and to which
the Movants have not established a factual connection.77 Because the
crux 	of 	the 	Movants' 	claim 	to 	disclosure 	here 	lies 	within 	the
Executive's clear authority to determine what material should remain
classified, we recall the Supreme Court's admonition that "[b]ecause
of their ver y potency, inherent powers must be exercised with restraint
and discretion." 78
In the absence of a clear grant of reviewing authority in the FISA
or a need to protect the integrity of our own judicial processes, respect
for the separation of powers dictates that we dismiss the Petition for
lack of jurisdiction, as we "have no business deciding" 	the merits of
the Movants' constitutional claim .7 9
III.
Perhaps recognizing that the FISA 	does 	not authorize their
Petition for Review in this instance, the Movants also characterize their
Petition as one seeking, in the alternative, the extraordinary writ of
77 To clarify, we do not consider or decide here whether the Movants have a
cause of action in a federal district court against an executive agency for the
disclosure of the relevant non-public material that the Executive Branch has
determined to be classified. We note that the Government has acknowledged that
the Freedom of Information Act , 5 U.S.C. § 552, ma y provide for judicial review of
a claim seeking access to such material . See Government 's Br. at 10.
78 Chambers, 501 U .S. at44(citingRoadway Exp. , 447U .S. at764) .
79 Cun o, 547 U .S. at 341.
24

mandamus. This alternative effort to establish jurisdiction fares no
better .
The common-law writ of mandamus directed at a lower court is
codified in the All Writs Act 80 and in our Rules of Procedure. 81 The
writ is "a 'drastic and extraordinary' 	remedy 'reserved for really
extraordinary 	causes."' 82 	And 	"only 	exceptional 	circumstances
amounting to a judicial usurpation 	of power, 	or a clear abuse 	of
discretion will justify the invocation of this extraordinary remedy" 83
for the purpose of confining a lower court "to a lawful exercise of its
prescribed jurisdiction." 84
In the nature of things, the writ is available only to assist an
existing basis for jurisdiction. Indeed, "the action must ... involve
subject 	matter to which 	our 	appellate jurisdiction could 	in 	some
manner, at sometime, attach," and to which "the issuance of the writ
80 "The Supreme Court and all courts established by Act of Congress may
issue all writs necessary or appropriate in aid of th eir respective jurisdictions and
agreeable to the usages and principles of law ." 28 U.S. C. § 1651(a) (emphasis
added) .
81 " All writs that may be issued by United States courts of appeals shall be
available to the FISCR." FISCR. Proc. 8.
82 Chen ey v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004) (quoting Ex
parte Fah ey, 332 U.S. 258, 259-60 (1947)).
83 Id. (internal quotation marks and citations omitted).
84 Id. (quoting Roc he v. Ev aporat ed Milk Ass'n, 319 U.S. 21 , 26 (1943)) .
25

might assist." 85 The Movants recognize this point by conceding that
the" All Writs Act does not provide I an independent grant of appellate
jurisdiction,"' and that "courts may only consider mandamus petitions
if I an independent statute ... grants [the court] jurisdiction.'" 86 But as
noted, 	the Movants have not identified 	an independent 	basis for
subject 	matter jurisdiction 	over their Petition. 87 And 	our 	Rules of
Procedure, 	which are said to authorize the issuance of the writ by
85 United States v. Christian, 660 F.2d 892, 894 (3d Cir. 1981) (quoting United
Stat es v. RMI Co., 599 F.2d 1183, 1186 (3d Cir. 1979));accord Ortiz v . United States,
138 S. Ct. 2165,2173 (2018) (citing Marbury v. Madison, 5 U.S. 137, 175 (1803)); In re
AI Baluchi, 952 F.3d 363, 367~ (D.C. Cir. 2020).
86 Movants' Br. at 8 (quoting In re al-Nashiri, 791 F.3d 71, 75-76 (D . C. Cir.
2015) (internal citations and quotation marks omitted)).
87 The Movants cite two other provisions of the FISA to assert that we have
subject matter jurisdiction to consider their mandamus petition: (1) § 1803(g)(1),
which authorizes the court to establish rules and procedures and to " take such
actions ... as are reasonablynecessaryto administer [its] responsibilities under this
chapter [36]"; and (2) § 18030), which establishes a certification procedure for
certain questions of law and which the FISC invoked to ask this Court to answer
the question relating to the Movants' Article III standing. See Movants' Br. at 9.
Neither 	section 	provides 	an 	independent basis 	for 	subject 	matter
jurisdiction in this instance. Section 1803(g)(1), by its own terms, does not create
subject matter jurisdiction over any kind of case, let alone over an action involving
a party that has not received any FISA process. And§ 18030) only authorizes the
FISC to certify certain questions of law to our Court ; it does not create an
independent basis of reviewing authority over cases that fall outside of our own
subject matter jurisdiction. Even if it did, the Movants have not relied upon the
certification procedure in this case. To be sure, when we accepted the FISC's
certification relating to the Movants ' Article III standing, we only agreed to answer
the question certified to us and specifically refused to consider if there was subject
matter jurisdiction over the Motion. See In reCertification, 2018 WL 2709456, at *7.
26

impliedly referring to the All Writs Act, 88 certainly do not provide that
jurisdictional basis.
In sum, we lack jurisdiction to grant the extraordinary relief that
the Movants request.
CONCLUSION
As Judge Collyer aptly observed in an earlier proceeding, our
faithful adherence to Congress's limited mandate requires that we
decline the Movants' invitation to "expand [our own] jurisdiction" in
a way that is contrary to so many "statutory provisions that limit [our]
jurisdiction to a specialized area of national concern," 89 - 	that is, the
"governmental electronic surveillance of communications for foreign
intelligence purposes." 90
Because the Movants' Petition falls outside of the class of cases
that Congress carefully identified as being subject to our reviewing
authority, the March 10, 2020 Petition is DISMISSED 	for lack of
jurisdiction.
88 S ee ante, note 81.
89 In re Opinions & Orders, 2017WL 5983865, at *21 (Collyer, P.J.,
dissenting).
9°Clapper v. Amnesty Int 'l USA, 568 U.S. 398,402 (2013).
27