Opinion and Order

OCR transcription for search; preserved printed pages are authoritative

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# UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COWReAnn Flynn Hall, Clerk of Court WASHINGTON, D.C.

IN RE MOTION FOR PUBLICATION OF
RECORDS

Docket No. Misc. 19-01

## OPINION AND ORDER

Pending before the Court is a motion for the publication of court records that John
Solomon and Southeastern Legal Foundation filed on May 23, 2019. The motion invokes Rule
62 of the United States Foreign Intelligence Surveillance Court Rules of Procedure, the qualified
First Amendment right of access, and the common-law right of access to compel the Court to
disclose "orders, opinions, decisions, sanctions, or other records" relating to attorney misconduct
or discipline in certain matters. See Mot. at 2, https://www.fisc.uscourts.gov/sites/default/files/
Misc%2019-01%20Motion%20of%20John%20Solomon%20and%20Southeastern%20Legal%20
Foundation%20for%20Publication%20of%20Records%20190523.pdf.

In 2013, the American Civil Liberties Union, the ACLU of the Nation's Capital, and the
Media Freedom and Information Access Clinic jointly filed a motion requesting that the Court
disclose classified judicial opinions addressing the legal basis for bulk collection. See Mot. of
$
the ACLU, the ACLU of the Nation's Capital, & MFIAC for the Release of Ct. Rs., Misc. No.
13-08 (Foreign Intel. Surv. Ct. 2013), https://www.fisc.uscourts.gov/sites/default/files/
Misc%2013-08%20Motion-2.pdf. Like the pending motion, the ACLU motion argued that both
FISC Rule 62 and the qualified First Amendment right of access authorized this Court to
exercise jurisdiction. Id. at 1. That motion was finally resolved four months ago when the

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United States Foreign Intelligence Surveillance Court of Review issued its decision in In re
Opinions and Orders by the FISC Addressing Bulk Collection of Data Under the Foreign
Intelligence Surveillance Act, 957 F.3d 1344 (Foreign Intel. Surv. Ct. of Review Apr. 24, 2020)
(per curiam). The FISCR held that it lacked jurisdiction over the petition seeking appellate
review of then-Presiding Judge Rosemary M. Collyer's February 11, 2020, decision denying the
motion. Id. at 1358.

This Court is now convinced that exercising jurisdiction over the pending motion in this
matter would be inconsistent with the Foreign Intelligence Surveillance Court of Review's
decision. The FISCR determined that it lacked statutory subject-matter jurisdiction because
Congress did not empower the federal courts established under FISA to consider constitutional
claims, a freestanding motion asserting a qualified First Amendment right of access did not fall
within any of the FISCR's jurisdictional categories enumerated in the statute, and the movants
were not among the parties authorized by the statute to seek FISCR review. Id. at 1350-51.
Noting its "significantly limited powers carefully delineated by Congress," the FISCR also
declined to rely on the doctrine of ancillary jurisdiction to exercise discretionary authority over
the petition. Id. at 1356-57. It explained that such authority must be exercised with restraint,
discretion, and great caution, id. at 1356, n.69 (citing Ex Parte Burr, 22 U.S. 529, 531 (1824)),
and that the movants had not been involuntarily haled into court, did not seek to assert rights in
an ongoing action, did not establish a factual connection to the classified material, and did not
present circumstances warranting the exercise of the FISCR's inherent judicial power to enforce
its mandates and orders or protect the integrity of its proceedings and processes. Id. at 1356. In
addition, because the "crux" of the movants' claim to disclosure "[lay] within the Executive's
clear authority to determine what material should remain classified," the FISCR concluded that

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"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." Id. at 1357
(internal quotation marks omitted).

Applying the FISCR's reasoning to whether this lower Court has jurisdiction over the
pending motion leads to the same result. Like the FISCR, the FISC is not empowered by
Congress to consider constitutional claims generally, First Amendment claims specifically, or
freestanding motions filed by persons who are not authorized by FISA to invoke this Court's
jurisdiction. See id. at 1355 (stating that "specialized courts like the FISC" are not "empowered
to consider claims arising under the First Amendment to the Constitution"), 1350-51; 50 U.S.C.
§§ 1801-1885c. By the same token, FISA does not grant the FISC jurisdiction over claims
asserting a common-law right of access either. Moreover, because all of the above-described
reasons why the FISCR found it unwarranted to exercise ancillary jurisdiction over the ACLU
motion apply to the pending motion, the FISC is foreclosed from doing so here.

Accordingly, it is ORDERED that John Solomon and Southeastern Legal Foundation's
Motion for Publication of Records is DISMISSED for lack of jurisdiction.

SO ORDERED this 15 day of September, 2020.

JAMES E. BOASBERG
Presiding Judge, United States Foreign
Intelligence Surveillance Court