The Petition for Immediate Supreme Court Review of a Foreign Intelligence Surveillance Court Order Raises Thorny Procedural Issues

Posted in: Constitutional Law

Last week on this website, John Dean wrote an important column discussing the substantive privacy issues raised by a recent petition to the Supreme Court.  The petition seeks review of a top-secret order by federal judge Roger Vinson, sitting in his capacity as a Foreign Intelligence Surveillance Court.  He ordered Verizon to turn over “telephony metadata”—essentially call logs—of all calls in which at least one party was in the United States; and he forbade Verizon from informing its customers that their phone activity (though not the content of their conversations) would be shared with the government in this way.  The order came to light only because Edward Snowden disclosed it.

Dean’s column called attention to the substance of the complaint: As the name of the statute suggests, the Foreign Intelligence Surveillance Act (FISA) authorizes spying on foreigners; it was a reaction against the misuse of intelligence services by prior Presidents who targeted their domestic political enemies; yet the Vinson order authorizes collection of information regarding purely domestic telephone calls; thus, the petition argues that the order exceeded the statutory authority.

Will that argument persuade five Justices of the Supreme Court?  Perhaps, but before that can happen, the Court must decide to accept the case for review, and as I shall explain below, there are serious procedural obstacles to its doing so.

Can a Non-Party Appeal to the Supreme Court?

If Verizon itself were seeking review in the Supreme Court, its path would be clear.  The same federal statute that authorized the FBI to seek the order against Verizon in the first place also authorizes Verizon and other parties in similar circumstances—those that have received FISA orders—to appeal such orders to a special FISA court of review (which is established by another statutory section).  If the appeal is rejected, the party may then file a petition for review by the Supreme Court.

But all of that litigation, including Supreme Court review, takes place in secret.  Consequently, were it not for Snowden’s actions, persons whose telephone call records are handed over to the government by their service providers would not know that they were being monitored.  And even now, we do not know whether various parties subject to FISA orders have sought Supreme Court review.

The interests of a telephone service provider like Verizon diverge from those of its customers.  Even if the provider has ample opportunity to protect its interests through secret proceedings, its customers do not.  Accordingly, last week’s Supreme Court petition was filed by a Verizon customer—the Electronic Privacy Information Center (EPIC), a non-profit that litigates privacy issues.

Yet the statute that authorizes those subject to FISA subpoenas to seek Supreme Court review through a petition for a writ of certiorari does not authorize non-parties like EPIC to seek such review.  And neither does any other statute.  Why then, do EPIC’s lawyers think that they can take their case directly to the Supreme Court?

EPIC relies on a federal statute known as the All Writs Act. It authorizes the Supreme Court and other federal courts to issue “all writs necessary or appropriate in aid of their respective jurisdictions.”  One such writ is the writ of mandamus, which commands a judge (or other official) to perform a non-discretionary duty.  By styling its petition as a request for a writ of mandamus, EPIC argues that the matter falls within the existing jurisdiction of the Court.  Yet that contention is subject to considerable doubt.

Does the Supreme Court Have the Constitutional Power to Hear EPIC’s Case?

Article III of the Constitution divides the jurisdiction of the Supreme Court into two categories: In “original” jurisdiction cases, the litigation originates in the Supreme Court; in “appellate” jurisdiction cases, the Court reviews the judgments of state courts or lower federal courts.

While Congress exercises considerable control over the appellate jurisdiction of the Supreme Court, since the landmark decision in Marbury v. Madison in 1803, it has been established that Congress may not expand the Court’s original jurisdiction.  Marbury is best known for affirming the principle that the Court may exercise judicial review of the constitutionality of acts of Congress, but the particular case also involved a narrower jurisdictional point: Chief Justice John Marshall said that Congress had impermissibly attempted to expand the Court’s original jurisdiction by granting the Court authority to hear a case seeking a writ of mandamus where there was no initial filing in a lower court.

Does the Marbury principle bar jurisdiction in EPIC’s case?  The answer is not entirely clear.

On one hand, as American University law professor Stephen Vladeck correctly noted in a blog post last week, a petition for mandamus may originate in the Supreme Court in the colloquial sense, but still not count as invoking the Court’s “original” jurisdiction as that term is used in the Constitution.  William Marbury brought his lawsuit against James Madison in the Supreme Court without going first to any other court, and so that case was “original” in both senses of the word.  By contrast, EPIC seeks a writ of mandamus directed to Judge Vinson, in order to correct what it regards as his erroneous ruling; in the constitutional sense, Professor Vladeck says, that makes the petition fall within the appellate jurisdiction of the Supreme Court.

On the other hand, it is not obvious that EPIC is really appealing from Judge Vinson’s order.  It is true that EPIC, as a Verizon customer, has an interest in seeing that order nullified, but EPIC was not a party to the case that produced the order, and in general, only parties can appeal a court’s order—as illustrated by the Supreme Court’s recent ruling that the sponsors of Proposition 8 lacked standing to appeal a district court ruling legalizing same-sex marriage in California.  Thus, although an appeal by Verizon would fall within the Supreme Court’s appellate jurisdiction—even if it were styled as a petition for a writ of mandamus—the petition by EPIC looks like a new case that cannot start in the Supreme Court.

The Scope of the All Writs Act

But wait.  As Professor Vladeck also notes, the jurisdictional scope of the All Writs Act is quite broad.  The Court has used it to exercise jurisdiction over cases that only potentially might result in a petition for a writ of certiorari.  It has been used as a means of ensuring that the actions of non-parties do not jeopardize a court’s ability to provide complete relief among the parties.  So, the argument goes, the All Writs Act can also be used at the behest of a non-party (here, EPIC) that clearly has an interest in the outcome of a case.  And so long as that case was originally filed in a lower court, the resulting exercise of Supreme Court jurisdiction is appellate in the constitutional sense.

Is that argument persuasive?  Perhaps, although I am not sure that it fully comes to grips with what Congress did in establishing the Foreign Intelligence Surveillance courts.  The relevant statutes provide that only the recipients of FISA orders can appeal to the FISA court of review, and only those same recipients can then go to the U.S. Supreme Court if dissatisfied with the outcome.  Surely the Congress that enacted the current version of FISA did not intend to permit targets of surveillance (like Verizon customers) to challenge FISA court orders.  FISA’s express language does not allow for such challenges, and thus the best argument that EPIC can make is that Congress goofed by failing to close the loophole that permits it to use the All Writs Act to circumvent Congress’s intent in enacting FISA.

A Catch-22 or a Forum Selection Principle?

Still, this whole line of argument may seem unfair to parties like EPIC.  After all, the reason EPIC did not attempt to intervene in the FISA court proceedings is that Congress mandated that those proceedings be kept secret from surveillance targets.  How can the Court say that EPIC is barred from filing its mandamus action for failing to participate in lower court proceedings when EPIC had no opportunity to participate in such proceedings?  The whole arrangement looks like a Catch-22.

But the appearance is deceiving.  The procedural question raised by EPIC’s lawsuit is not whether EPIC is entitled to challenge the collection of Verizon customer metadata as unlawful.  The question is whether EPIC may do so by filing its petition in the Supreme Court in the first instance.

In the end, the answer to that question is likely to be no.  Even if the Supreme Court has jurisdiction under the All Writs Act, and even if that jurisdiction is properly “appellate” within the meaning of the Constitution’s Article III, mandamus remains an extraordinary remedy that courts issue only when the petitioner lacks realistic substitutes.  Here, that pretty plainly is not true.

EPIC’s petition argues that it lacks alternative means of vindicating its rights because “Verizon and the government agents executing” Judge Vinson’s “order are granted immunities” by FISA itself.  However, the relevant language in FISA only appears to protect those potential defendants from financial liability.  Nothing in the statute expressly forbids a federal district court from issuing an injunction—and if the statutory limitation on liability were to be read to implicitly forbid injunctive relief as well as damages, then that limit would apply to EPIC’s petition for a writ of mandamus in the Supreme Court as well.

Accordingly, EPIC has a realistic, albeit mundane, option: it can sue Verizon and/or the government officials collecting Verizon metadata in a federal district court, seeking an order to halt the collection of the data.  From there, the path to a federal appeals court and then the Supreme Court would be clear.

To be sure, this proposed course of action would also circumvent Congress’s effort to prevent FISA review in cases brought by surveillance targets.  But Congress clearly has made no effort to foreclose resort to the ordinary processes of federal court litigation—and were it to attempt to do so, that itself would raise difficult constitutional questions that the courts have been at pains to avoid for decades.

Accordingly, EPIC will very likely fail in its effort to go straight to the Supreme Court.  The mandamus petition nonetheless raises serious substantive legal and policy questions.  If nothing else, EPIC deserves the nation’s gratitude for shining a spotlight on them.

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