University of Michigan Law School
Civil Rights Litigation Clearinghouse
new search
page permalink
Case Name In re Opinions and Orders of this Court Containing Novel or Significant Interpretations of Law NS-DC-0117
Docket / Court Misc. 16-01 ( FISC )
State/Territory District of Columbia
Case Type(s) National Security
Special Collection Foreign Intelligence Surveillance Act -- All Matters
Foreign Intelligence Surveillance Act -- Foreign Targeting (702, 703, 704)
Foreign Intelligence Surveillance Act -- Internet Metadata
Foreign Intelligence Surveillance Act -- Telephony Metadata
Foreign Intelligence Surveillance Court
Attorney Organization ACLU Chapters (any)
ACLU National (all projects)
Case Summary
For the Civil Rights Litigation Clearinghouse collection of Foreign Intelligence Surveillance Act (FISA) matters, see our special collection.

On October 19, 2016, the American Civil Liberties Union and the ... read more >
For the Civil Rights Litigation Clearinghouse collection of Foreign Intelligence Surveillance Act (FISA) matters, see our special collection.

On October 19, 2016, the American Civil Liberties Union and the Media Freedom and Information Access Clinic of Yale Law School filed this motion in the Foreign Intelligence Surveillance Court (FISC) to unseal the court's orders and opinions containing "novel or significant interpretations of law" issued between September 11, 2001, and the passage of the USA FREEDOM Act on June 2, 2015. The ACLU argued that the First Amendment compelled release of these judicial decisions and that FISC Rule 62 gave the FISC discretion to publish its own orders, opinions, and decisions. Three years earlier (Docket Misc. 13-08), the ACLU had filed a similar motion, requesting the release of all opinions addressing the legal basis for bulk data collection under FISA (NS-DC-0026 in this Clearinghouse). The litigation under Misc. 13-08 was still ongoing at the time the ACLU filed this case, but the request in this case was broader, including opinions that were unrelated to bulk data collection.

While this motion was pending, FISC Judge Rosemary Collyer dismissed the motion in Misc. 13-08, concluding that the ACLU lacked standing. In March 2017, after a request from the ACLU to alter or amend Judge Collyer's earlier opinion, Judge Collyer called for an en banc reconsideration in Misc. 13-08 of whether the ACLU had standing. In light of the status of Misc. 13-08, on March 27, 2017, Judge Collyer issued an order in this case directing the parties to confer and discuss whether this case should be stayed.

The parties did not agree to stay the case. Instead, on March 29, 2017, the ACLU moved to delay briefing in light of the proceedings in Misc. 13-08. The court granted this request, delaying the briefing until June 2017. On June 8, 2017, the government filed its response to the motion, making the same argument it had made in Misc. 13-08—that the ACLU lacked standing because neither the First Amendment nor FISA Rule 62 gave the ACLU a right of access to FISC opinions. On June 30, 2017, the ACLU filed a response, arguing that well-established First Amendment law provided the ACLU with a right to judicial opinions in every Article III court, except for the FISC. The ACLU thus argued that lack of access to FISC opinions was "the one federal court in which the public is denied access to judicial interpretations of public laws, individual rights, and limitations on government power."

On June 14, 2018, the ACLU filed a motion to consolidate this docket with Misc. 13-08, arguing that the legal issues between the two overlapped extensively, including questions of subject matter jurisdiction.

On February 11, 2020, FISC released its opinion. Judge Collyer clarified that the movants were seeking redacted, non-public material in the opinions released addressing the bulk collection of data. The court found that it had subject matter jurisdiction over the Motion for the Release of Court Records but the First Amendment did not confer a qualified right of public access to the material sought and there was no reason for the court to exercise any discretion it might have had in granting the relief requested. Thus, the Motion for the Release of Court Records was denied and the motion dismissed. Judge Collyer also denied the the motion to consolidate this docket with Misc. 13-08.

Judge Collyer left the FISC on March 7, 2020 without issuing any final judgment on the case. The ACLU filed a motion on July 10, 2020 respectfully asking for a status report and final ruling on the case. Judge Boasberg released an order on September 15, 2020 dismissing the case for lack of jurisdiction; he dismissed several cases making similar arguments for lack of jurisdiction on the same day. He analogized this case, which urged the Court to exercise jurisdiction under a combination of FISC Rule 62 and the First Amendment implied right of access, to Misc. 13-08 (available in this Clearinghouse), which the FISC Court of Review had dismissed for lack of jurisdiction.

The ACLU may still appeal the decision to the FISCR, but as of September 24, 2020 it has not done so.

John He - 07/31/2017
Lisa Limb - 02/20/2019
Ellen Aldin - 09/24/2020


compress summary

- click to show/hide ALL -
Issues and Causes of Action
click to show/hide detail
Issues
Constitutional Clause
Freedom of speech/association
Defendant-type
Jurisdiction-wide
General
Access to lawyers or judicial system
Confidentiality
Courts
Record-keeping
Records Disclosure
Search policies
Terrorism/Post 9-11 issues
Plaintiff Type
Non-profit NON-religious organization
Defendant(s) United States
Plaintiff Description The movant is the American Civil Liberties Union and its D.C. Chapter
Indexed Lawyer Organizations ACLU Chapters (any)
ACLU National (all projects)
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party Defendant
Public Int. Lawyer Yes
Nature of Relief None
Source of Relief None
Filed 10/19/2016
Case Ongoing Yes
Case Listing NS-DC-0026 : In re Opinions & Orders of this Court Addressing Bulk Collection of Data under the Foreign Intelligence Surveillance Act [FISA Docket Misc. 13-08, FISCR docket 20-1] (FISC)
Docket(s)
Misc. 16-01 (FISC)
NS-DC-0117-9000.pdf | Detail
Date: 06/30/2017
Source: Foreign Intelligence Surveillance Court
General Documents
Certification of Bar Membership and Security Clearance Status
NS-DC-0117-0009.pdf | External Link | Detail
Date: 10/19/2016
Source: Foreign Intelligence Surveillance Court
Motion of the American Civil Liberties Union For the Release of Court Records
NS-DC-0117-0010.pdf | External Link | Detail
Date: 10/19/2016
Source: Foreign Intelligence Surveillance Court
Motion for Briefing Schedule
NS-DC-0117-0008.pdf | External Link | Detail
Date: 12/19/2016
Source: Foreign Intelligence Surveillance Court
Scheduling Order (FISC)
NS-DC-0117-0007.pdf | External Link | Detail
Date: 01/27/2017
Source: Foreign Intelligence Surveillance Court
Amended Scheduling Order (FISC)
NS-DC-0117-0006.pdf | External Link | Detail
Date: 03/08/2017
Source: Foreign Intelligence Surveillance Court
Order (2017 WL 1682645) (FISC)
NS-DC-0117-0005.pdf | WESTLAW | External Link | Detail
Date: 03/27/2017
Source: Foreign Intelligence Surveillance Court
Movant's Letter In Response to Court's March 27, 2017 Order
NS-DC-0117-0003.pdf | External Link | Detail
Date: 03/29/2017
Source: Foreign Intelligence Surveillance Court
Order Granting in Part the Movants' Request to Modify the Scheduling Order (2017 WL 1500052) (FISC)
NS-DC-0117-0004.pdf | WESTLAW | External Link | Detail
Date: 03/30/2017
Source: Foreign Intelligence Surveillance Court
The United States' Opposition to the Motion of the American Civil Liberties Union For the Release of Court Records
NS-DC-0117-0002.pdf | External Link | Detail
Date: 06/08/2017
Source: Foreign Intelligence Surveillance Court
Movant's Reply In Support of Motion For the Release of Court Records
NS-DC-0117-0001.pdf | External Link | Detail
Date: 06/30/2017
Source: Foreign Intelligence Surveillance Court
MOTION TO CONSOLIDATE DOCKET NOS. MISC. 13-08 & 16-01
NS-DC-0117-0011.pdf | Detail
Date: 06/13/2018
Source: Foreign Intelligence Surveillance Court
Order (FISC)
NS-DC-0117-0012.pdf | Detail
Date: 02/11/2020
Source: Foreign Intelligence Surveillance Court
Status Report
NS-DC-0117-0014.pdf | External Link | Detail
Date: 07/13/2020
Source: Foreign Intelligence Surveillance Court
Opinion and Order (2020 WL 5637419) (FISC)
NS-DC-0117-0013.pdf | WESTLAW | External Link | Detail
Date: 09/15/2020
Source: Foreign Intelligence Surveillance Court
show all people docs
Judges Boasberg, James Emanuel (FISC, D.D.C.) show/hide docs
NS-DC-0117-0013
Collyer, Rosemary M. (FISC, D.D.C.) show/hide docs
NS-DC-0117-0004 | NS-DC-0117-0005 | NS-DC-0117-0006 | NS-DC-0117-0007 | NS-DC-0117-0012
Plaintiff's Lawyers Abdo, Alex (New York) show/hide docs
NS-DC-0117-0001 | NS-DC-0117-0008 | NS-DC-0117-0009 | NS-DC-0117-0010 | NS-DC-0117-0011 | NS-DC-0117-0014
Bloch-Wehba, Hannah (Connecticut) show/hide docs
NS-DC-0117-0001 | NS-DC-0117-0008 | NS-DC-0117-0009 | NS-DC-0117-0010 | NS-DC-0117-0011
Crain, Charles (Connecticut) show/hide docs
NS-DC-0117-0014
Jaffer, Jameel (New York) show/hide docs
NS-DC-0117-0001 | NS-DC-0117-0008 | NS-DC-0117-0009 | NS-DC-0117-0011 | NS-DC-0117-0014
Kaufman, Brett Max (New York) show/hide docs
NS-DC-0117-0001 | NS-DC-0117-0009 | NS-DC-0117-0010 | NS-DC-0117-0011 | NS-DC-0117-0014
Langford, John (Connecticut) show/hide docs
NS-DC-0117-0001 | NS-DC-0117-0008 | NS-DC-0117-0009 | NS-DC-0117-0010 | NS-DC-0117-0011
Michelman, Scott (District of Columbia) show/hide docs
NS-DC-0117-0001 | NS-DC-0117-0008 | NS-DC-0117-0009 | NS-DC-0117-0010 | NS-DC-0117-0011
Perloff, Michael Krevans (District of Columbia) show/hide docs
NS-DC-0117-0014
Schulz, David A. (Connecticut) show/hide docs
NS-DC-0117-0001 | NS-DC-0117-0008 | NS-DC-0117-0009 | NS-DC-0117-0010 | NS-DC-0117-0011 | NS-DC-0117-0014
Spitzer, Arthur (District of Columbia) show/hide docs
NS-DC-0117-0001 | NS-DC-0117-0008 | NS-DC-0117-0009 | NS-DC-0117-0010 | NS-DC-0117-0011 | NS-DC-0117-0014
Toomey, Patrick Christopher (New York) show/hide docs
NS-DC-0117-0001 | NS-DC-0117-0003 | NS-DC-0117-0008 | NS-DC-0117-0009 | NS-DC-0117-0010 | NS-DC-0117-0011 | NS-DC-0117-0014
Defendant's Lawyers Boente, Dana J. (District of Columbia) show/hide docs
NS-DC-0117-0002
Evans, Stuart J. (District of Columbia) show/hide docs
NS-DC-0117-0002
Smith, Jeffrey Michael (District of Columbia) show/hide docs
NS-DC-0117-0002

- click to show/hide ALL -

new search
page permalink

- top of page -