Misc. 13-08 Amicus Appendix (FISC 2018)

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This opinion or order relates to an opinion or order originally issued on November 7, 2013.

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( J! • I • I - s ('; . . -. ~. • •.• ~- • f' • ' I'• ·. J 1 • · : j \if j ;• , . j f I -. - , ''°' ,_ ... ,,. ':,'.' :-.-·' .1 . ::;·0..,1:. Docket No. Misc. 13-08 ~ l1; . i ::.. ! : ; " "-J •. • - i. : • I I : ,.•• L- :" (:• ( 'p -,. l '~I\ l.. 2& lB JUN 13 AM 111: 17 'LE,_A \:·. FL't''ffr'JHALL ., c. Iii; CLERK OF COURT f In the I I llntteb ~tate1' jforeign 3lntelligence ~urbeillance QI:ourt I IN RE OPINIONS & ORDERS OF THIS COURT ADDRESSING BULK COLLECTION OF DATA UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT AMICUS APPENDIX I I PROFESSOR LAURA K. DONOHUE AGNES N. WILLIAMS RESEARCH PROFESSOR June 13, 2018 Georgetown University Law Center 600 New Jersey Avenue, NW Washington, D.C. 20001 Tel: (202) 662-9455 Fax: (202) 662-9444 lkdonohue@law.georgetown.edu I I TABLE OF CONTENTS FOR AMICUS APPENDIX Pag~ APPENDIX A: CONSTITUTIONAL V. NON-CONSTITUTIONAL COURTS & TRIBUNALS i 1 I I. OVERVIEW l I i ~ II. ARTICLE III COURTS A. Regularly-Constituted Article III Courts Currently Operating 10 I B. Previous Regularly-Constituted Article III Courts 10 I III. ARTICLE III SPECIALIZED COURTS 10 A. Specialized Courts Currently in Existence i 12 I I . FISC/FISCR 12 2. U.S. Court of Appeals for the Federal Circuit IS I I I 3. U.S. Court of International Trade 16 5. Alien Terrorist Removal Court 11 B. Specialized Courts No Longer in Existence 11 1J I. Customs Courts I I i 2. Emergency Courts of Appeals I~ 3. Commerce Court 1~ 4. Special Railroad Court 19 5. Court of Claims 2d IV. ARTICLE I COURTS 22 ! V. COURTS OF THE DISTRICT OF COLUMBIA 28 VI. ADMINISTRATIVE TRIBUNALS 2J Appi VII. AUTHORITY, JURISDICTION & SUPPORT FOR EACH COURT'S CATEGORICAL 31 ASSIGNATION I APPENDIX B: INHERENT POWERS 52 I. OVERVIEW 52 II. PROMOTE THE SUBSTANTIVE COMMITMENT TO FAIR.NESS AND JUSTICE 5~ A. Ensure Full Factual Information and Access to Matters of Law 53 I B. Ensure Consistency Within and Among Courts 56 C. Seal, Unseal, Revoke, or Rescind Orders 57 D. Additional Powers 5~ I I I i III. FACILITATE FAIR AND EFFICIENT PROCESSES 60I A. Control the Judicial Calendar and Docket 60 I I B. Ensure the Efficient Use of Resources 61 IV. PROTECT THE INTEGRITY, INDEPENDENCE, AND REPUTATION OF THE JumcIARt I 63 I A. Prevent Fraud 6f B. Sanction Contumacious Behavior 6~ C. Punish for Contempt and Maintain Order in the Courtroom D. Regulate the Practice of Law APPENDIX C: JUDICIAL SCRUTINY OF EXECUTIVE BRANCH CLASSIFICATION ANri PUBLICATION OF RELATED MATERIALS • 711 I II. 1iIB EXECUTIVE M!SCHARACTERIZES DEPARTMENT OF THE NAVY V. EGAN 11 12 III. ARTICLE III COURTS REGULARLY CONFRONT CLASSIFIED MATERIAL 76 IV. ARTICLE III COURTS REGULARLY SCRUTINIZE CLASSIFIED MATERIAL ~0 I. OVERVIEW App ii V. COURTS CAN AND Do DENY EXECUTIVE BRANCH EFFORTS TO KEEP INFORMATION HIDDEN FROM THE PUBLIC VI. THE GOVERNMENT IS CAPABLE OF PROVIDING SPECIFIC EXPLANATIONS FOR WHY CERTAIN INFORMATION SHOULD NOT BE MADE PUBLIC App iii I 97: APPENDIX A: CONSTITUTIONAL V. NON-CONSTITUTIONAL COURTS & TRIBUNALS Amicus note: The second question refers to the Court's status as "a court oflimite~ or specialized jurisdiction. " The type of court (constitutional versus nonconstitutional) significantly impacts the legal analysis, as "the judicial power ofthe United States" necessarily flows through Article III. However, there are no gooq summaries in the secondary literature of the distinction between Article Ill courts, Article III specialized courts, Article I courts, and administrative tribunals, and which courts fall into which categories. Appendix A thus provides the Court with th~ legal underpinning of the different courts, as well as a discussion of their categorization and jurisdiction as supported by the Court's doctrine, statutory /awl and scholarly literature bearing on the subject. Importantly, in none ofthe statutes I I establishing either regular or specialized Article III courts does Congresf explicitly grant the courts jurisdiction over their own opinions. 1 I.OVERVIEW The Constitution provides for "the judicial power of the United States" to "be vested I in one supreme Court, and in such inferior courts as the Congress may from time to I time ordain and establish." U.S. Const. art. III,§ 1. Congress, in turn, may "constitute I Tribunals inferior to the Supreme Court." Id. art. I, §8. Article Ill courts "are calleJ i I I constitutional courts. They share in the exercise of the judicial power defined in that I section, can be invested with no other jurisdiction, and have judges who hold office I during good behavior, with no power in Congress to provide otherwise." Ex parte I Bakelite Corp., 279 U.S. 438, 449 (1929). ' I There are eight federal Article III courts currently operating in the United Statesi Five have specialized subject matter jurisdiction (the Foreign Intelligenc~ I Surveillance Court; the Foreign Intelligence Surveillance Court of Review; the U.S~ I Court of Appeals for the Federal Circuit, the U.S. Court of International Trade, and I App A 1 the Judicial Panel on Multidistrict Litigation). 1 See Tables A-1, A-2. At least nine specialized Article III courts no longer exist (four Customs Courts, two Emergenc)j Courts of Appeals, the Commerce Court, the Special Railroad Court, and the Court of Claims). Structure plays an important role in determining whether a tribunal falls withij Article III. Specifically, it must satisfy the constitutional requirements of unityj I J supremacy, and inferiority. James E. Pfander, Article I Tribunals, Article III CourtsJ I and the Judicial Power of the United States, 118 Harv. L. Rev. 643, 649 (2004)~ During the Constitutional Convention, the Framers deliberately rejected a proposal that would have allowed for multiple supreme courts, as existed in England and a I I number of states. 2 They decided to adopt a unitary model, with all federal judicial I wa~ 1 A sixth Article III specialized court, the Alien Terrorist Removal Court, created by Congress in 1996, but it has never met or heard a case. See Table A-2 and discussion, infra. I 2 The Virginia Plan included a resolution that a ''National Judiciary be established td consist of one or more supreme tribunals, and of inferior tribunals to be chosen bY, the National Legislature, to hold their offices during good behavior; and to receiv~ punctually at stated times fixed compensation for their services, in which no increas~ or diminution shall be made so as to affect the persons actually in office at the time of such increase or diminution. That the jurisdiction of the inferior tribunals shall bJ to hear & determine in the first instance, and of the supreme tribunal to hear and determine in the demier resort, all piracies & felonies on the high seas, captures frorrl an enemy; cases in which foreigners or citizens of other States applying to such jurisdictions may be interested, or which respect the collection of the National revenue; impeachments of any National officers, and questions which may invoivJ the national peace and harmony." 1 The Records ofthe Federal Convention of 1787[1 at 21-22 (Max Farrand ed., rev. ed. 1966). I I AppA2 power vested in one Supreme Court and in such inferior tribunals as Congress migh~ create. 3 The Committee of Detail deliberately replaced the term ''tribunals" in i Article III with "courts." 4 It also required life tenure for Article III but did not carry bJ The New Jersey Plan, in contrast, ''resolved that a federal Judiciary established to consist of a supreme Tribunal the Judges of which to be appointed b~ the Execut~ve, and to hold their offi.ces during ~ood b_ehav~or, to _receive. punctuallYJ at stated times a fixed compensation for their services m which no mcrease ov diminution shall be made, so as to affect the persons actually in office at the time o~ such increase or diminution; that the Judiciary so established shall have authority tq hear and determine in the first instance on all impeachments of federal officers, and by way of appeal in the demi er resort in all cases touching the rights of AmbassadorsJ in all cases of captures from an enemy, in all cases of piracies and felonies on th~ high Seas, in all cases in which foreigners may be interested, in the construction of any treaty or treaties, or which may arise on any of the Acts for regulation of tradeJ or the collection of the federal Revenue: that none of the Judiciary shall during th~ time they remain in office be capable of receiving or holding any other office on appointment during their time of service, or for-thereafter." Id at 244. 3 Following weeks of deliberation, the Convention forwarded the following resolutions to the Committee of Detail: "That a national Judiciary be established t9 consist of one Supreme Tribunal - the Judges of which shall be appointed by th~ second Branch of the national Legislature - to hold their Offices during good Behaviour - to receive punctually at stated Times a fixed Compensation for the~ Services, in which no Diminution shall be made so as to affect the Persons actuall)j in Office at the Time of such Diminution ... That the Jurisdiction of the national Judiciary shall extend to Cases arising under the Laws passed by the genera~ Legislature, and to such other Questions as involve the national Peace and Harmony ... That the national Legislature be empowered to appoint inferio~ Tribunals." 2 id. at 132-33. 4 The Wilson drafts, which appears to be the last one before the final committee report, stated: "The Judicial Power of the United States shall be vested in on~ Supreme Natioaal Court and in such ethef [inferior] Courts as shall, from Time to Time, be constituted by the Legislature of the United States. The Judges of th~ Supreme Natioaal Court shall be chosea by the Seaate by Ballott. They shall holq their Offices during good Behaviour. They shall, at stated Times, receive for theitr Services, a Compensation, which shall not be diminished during their Continuanc~ I I I I 1 AppA3 over any similar requirement to Article I. Id. The result meant that neither Congres~ I nor the Executive could create independent courts invested with the judicial power and free from the Supreme Court's control and oversight. 5 See Pfander, 648-649, 681-684 (arguing that the shift in language provided greater latitude for Congres~ "to constitute tribunals with judges who would not necessarily meet the more i i restrictive tenure-in-office and salary requirements of Article III, while preserving I state courts' power). In determining whether an entity falls within Article III, Courts give some weigh~ ! to Congressional intent. However, the key considerations, in addition to situation I within the Article III appellate structure, are whether the statute creating it complie~ with the constitutional requirements of good behavior, compensation, and case-oJ controversy. United States v. Ferreira, 54 U.S. 40, 47 (1851); Glidden Co. v[ Zdanok, 370 U.S. 530, 552 (1962) (Harlan, J., plurality opinion). "The fact that an in Office." (strikethroughs in original, bracketed text added by Rutledge). Id. at 172f see also U.S. Const. art. III, § 1. 5 In England, for instance, ''the Crown enjoyed a prerogative to create a new set of tribunals or commissions to handle specific claims. The colonists who declared thefr independence form England viewed this prerogative power of court creation with great suspicion. Prerogative courts, which were thought to include both Stat Chamber and the courts of high commission that handled state trials, were seen, irl the colorful but representative phrase of St. George Tucker, as 'engines of oppression and tyranny.' ... Tucker, accordingly, was lavish in his praise of Article I and Article III, which operated to 'deny to the executive magistrate' the power create prerogative courts, and instead placed the court-making power in the federal legislature." James E. Pfander, Article I Tribunals, Article III Courts, and th4 Judicial Power ofthe United States, 118 Harv. L. Rev. 643, 649 n.16 (2004). I I I tq AppA4 agency uses court-like procedures does not necessarily mean it is exercising the. judicial power." Oil States Energy Servs., LLC v. Green's Energy Grp., LLC, 138i, S.Ct. 1365, 1378 (2018). Similarly, just because a "tribunal [is] called a court and its decisions called judgments [does] not alter its character or enlarge its power." i I Williams v. United States, 289 U.S. 553, 563 (1933). ''Nor does the fact that an 1 administrative adjudication is final and binding on an individual who acquiesces in, the result necessarily make it an exercise of the judicial power." Oil States Energy! I I Servs., 138 S.Ct. at 1378. See also Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272, 280 (1856) (fecognizing that the "auditing of I accounts of a receiver of public moneys" as well as "duties the performance of which I involve[] an inquiry into the existence of facts and the application to them of rules of law" may, "in an enlarged sense" be judicial acts, but "that they involve the exercise of judgment upon law and fact" "is not sufficient to bring such matters under the juridical power;" and that the court must further enquire whether the nature· of the acts fall within Article III, §2.); United States v. Ferreira, 54 U.S. 40, 48 ( 1851) (holding that while the acts conferred by Congress upon the judge were 'judicial in their nature," as 'judgment and discretion must be exercised," it was "nothing more than the power ordinarily given by law to a commissioner. While such a power "may constitutionally be conferred on a secretary as well as on a App AS commissioner." It "is not judicial in either case in the sense in which judicial power I is granted by the Constitution to the courts of the United States.") Certain tribunals that do not meet Article III requirements are considered alternately "non-constitutional," "legislative," or "Article I'' courts. 6 These courts I are created by Congress in the exertion of other powers .... Their functions always are directed to the execution of one or more of such powers, and are prescribed by Congress independently of section 2 of Article III; and their judges hold for such term as Congress prescribes, whether it be a fixed period of years or during good behavior. i Ex parte Bakelite Corp., 279 U.S. 438, 449 (1929). There are seventeen Article I I I courts: three territorial courts (the District Courts of Guam, Virgin Islands, and Northern Mariana Islands); eight military courts (the U.S. Court of Appeals for thl Armed Forces; the Army, Navy-Marine, Air Force, and Coast Guard Courts of I Criminal Appeals; the U.S. Courts-Martial; the U.S. Court of Appeals for Veteran~ I Claims; and the U.S. Court of Military Commission Review); and six region an~ I i subject-specific courts (the D.C. Court of Appeals, the Superior Court of the Distrit 6 The allocation of powers in Article I is to "tribunals," and not to "courts," which has led one leading scholar to suggest that Congress can create inferior bodies to thb Supreme Court, which lack Article III protections, "While these tribunals muJt remain inferior to the Supreme Court and the judicial department, Article I does ntjt require that they employ life-tenured judges and Article III does not formally invest these tribunals with the judicial power of the United States." Pfander, supra, at 65~. AppA6 of Columbia, the U.S. Court of Federal Claims, the U.S. Tax Court, the U.S. Bankruptcy Courts, and the Bankruptcy Appellate Panels). 7 See Table A-3. Additionally, there are at least a dozen administrative tribunals (e.g., the U.S. Immigration Courts, the Board of Immigration Appeals, the Military Commissions~ I the Board of Veterans' Appeals, the U.S. International Trade Commission, the U.sJ Merit Systems Protection Board, the Patent Trial and Appeal Board, the TrademarJ I ! Trial and Appeal Board, the Armed Services Board of Contract Appeals, the CivilianI 1 Board of Contract Appeals, the Tennessee Valley Authority Board of Contract Appeals, and the Postal Service Board of Contract Appeals). See Table A-4. II. ARTICLE Ill COURTS As a constitutional matter, the legislature has broad power to create lower Article IIll courts and to set their subject matter jurisdiction. All federal Article III Courts are i courts of limited jurisdiction. Turner v. Bank of N. Am., 4 U.S. (4 Dall.) 8 (1799).1 "[T]he power which congress possess to create Courts of inferior jurisdiction, necessarily implies the power to limit the jurisdiction of those Courts to particular objects." United States v. Hudson, 11 U.S. (7 Cranch) 32, 33 (1812). 7 As in the case of Article III courts, there are a number of Article I courts that are no longer in operation. The Court of Private Land Claims, for instance, was created in the late 19th century to oversee claims of title to lands obtained by a treaty from Mexico. Wilber Griffith Katz, Federal Legislative Courts, 43 Harv. L. Rev. 894, 907~908 (1930). App A 7 Once created, Article III courts "share in the exercise of judicial power defined in [Article III and] can be invested with no other jurisdiction." Ex parte Bakelite Corp., 279 U.S. 438, 449 (1929). As Chief Justice Marshall explained, "The judicial power of the United States is extended to all cases arising under the constitution." Marbury v. Madison, 5 U.S. (1Cranch)137, 178 (1803). Justice Scalia echoed thesl I · sentiments in his dissent in Chambers v. NASCO, Inc.: I agree with the Court that Article III courts, as an independent and coequal Branch of Government, derive from the Constitution itself, once they have been created and their jurisdiction established, the authority to do what courts have traditionally done in order to accomplish their assigned tasks. Some elements of that inherent authority are so essential to '[t]he judicial Power,' U.S. Const., Art. III,§ 1, that they are indefeasible, among which is a court's ability to enter orders protecting the integrity of its proceedings. I Chambers v. NASCO, Inc., 501 U.S. 32, 58 (1991) (Scalia, J., dissenting). Judicial power flows from Article III status. As the Supreme Court has explained, "CongresJ ! must not only ordain and establish inferior courts within a state and prescribe the, jurisdiction, but the judges appointed to administer them must possess the tenure of office before they can become invested with any portion of the judicial power of the union. There is no exception to this rule in the Constitution." Benner v. Porter, SJ ! U.S. 235, 242 (1850). 1 Article III courts are limited to nine categories of cases and controversies. u.sJ I i Const. art. III, §2. The Supreme Court understands the constitutional restriction tQ mean that Article III courts may not issue advisory opinions; the matter must meeJ I I App AS the requirements of standing and ripeness and not be moot; and the matter must not fall subject to political question doctrine. Letter from the Justices of the Supreme Court to President George Washington, (Aug. 8, 1793) (establishing no advisory opinions); Marbury, 5 U.S. at 137 (establishing political question doctrine); Flast v. I Cohen, 392 U.S. 83, 96-97 (1942) (acknowledging the Article III "prohibition against advisory opinions.") Article III powers do not extend to Article I courts. In 2011, for instance, the Supreme Court considered whether the Bankruptcy Court (an Article I court); exercised the judicial power of the United States by entering final judgment on a common law tort claim and concluded that it did not. Stern v. Marshall, 564 U.S. 462, 494-495 (2011 ). The Court determined that if Article I courts could be given the power to enter a final, binding judgment on a common law cause of action "then Article III would be transformed from the guardian of individual liberty and separation of powers we have long recognized into mere wishful thinking." Id. The Court explained, "Article III of the Constitution provides that the judicial power of the United States may be vested only in courts whose judges enjoy the protections set forth in that Article." Id. The courts are therefore careful to distinguish between which entities are Article III courts and which are Article I courts. See, e.g., Giorgio Foods, Inc. v. United States, 515 F. Supp. 2d 1313, 1321 (2007) ("The Customs Court was an Article I AppA9 ! court, while this court, as a result of the Customs Act of 1980, is an Article III court, with the same power as a district court."); Int'/ Fidelity Ins. Co. v. Sweet Little Mexico Corp., 665 F.3d 671, 678 (5th Cir. 2011) (quoting the language from Giorgio). A. Regularly-Constituted Article III Courts Currently Operating I In addition to the Supreme Court, established under Art. III, 1, there are two othet I regularly-constituted Article III courts: the U.S. Courts of Appeal and the U.S. I District Courts. 28 U.S.C. §§ 41, 43 (2012); 28 U.S.C. §§ 81-132 (2012). B. Previous Regularly-Constituted Article III Courts . The (now defunct) Circuit Courts (1789-1912) were Article III courts that ran in ! tandem with district courts. The Circuit Courts, which served as both trial courts and I had appellate jurisdiction, were created by the Judiciary Act of 1789. In 1891, the, . I Court of Appeals was established as an appellate court for district courts and circuit courts. Act ofMar. 3, 1891, ch. 517, 26 Stat. 826. The circuit courts were abolished by The Judicial Code of 1911. Act of Mar. 3, 1911, ch. 231, 36 Stat. 1087, 1167. III. ARTICLE III SPECIALIZED COURTS As with all Article III courts, those with specialized subject matter jurisdiction carry the judicial power of the United States. The requirements of unity, supremacy, and' inferiority having been met, the judicial protections of good behavior and set; compensation respected, and the case or controversy requirement satisfied, such App A 10 entities carry the full power of the third branch of government. Scholars and the I Courts agree that it is "uncontroversial that the lower court courts described in Article III, and created by Congress pursuant to Article I, §8, exercise the judicial power of the United States described in Article III, §2." David A. Case, Article 1 Courts, Substantive Rights, and Remedies for Government Misconduct, 26 N. Ill. U.: L. Rev. 101, 04-105; cf Turner v. Bank ofN. Am., 4 U.S. (4 Dall.) 8 (1799); United States v. Hudson, 11 U.S. (7 Cranch) 32, 33 (1812). Accordingly, interference by the other branches in the core functioning of Article III courts, of any type, violates separation of powers. Specialized Article III courts themselves recognize their status. The U.S. Court of International Trade, for instance, which has exclusive jurisdiction over any civil actions arising under certain sections of the 1930 Tariff Act, 1974 Trade Act, and the 1979 Trade Agreements Act, as well as certain other matters, possesses "all the powers in law and equity of, or as conferred by statute upon, a district court of the United States." 28 U.S.C. § 1585. See also 28 U.S.C. § 25l(a). There are currently five operable federal Article III specialized courts. At least nine other specialized courts have at one point been brought into existence by Congress. In none of the statutes creating Article III specialized courts does Congress specifically provide them with jurisdiction over their own opinions or records. App A 11 A. Specialized Courts Currently in Existence In addition to the five specialized Article III courts, the Alien Terrorist Removal Court exists but has neither met nor heard a single case since its creation in 1996. 1. FISC/FISCR In 1978 Congress created FISC and FISCR to address the collection of domestic electronic surveillance conducted for foreign intelligence purposes. ForeiJ I Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 1783 (codifie1 as amended at 50 U.S.C. §§ 1801-1811 (2012)). The law responded to public outci at the extent to which the intelligence community had placed U.S. citizens unde1 surveillance, as well as the Court's determination that the executive could not engage I in electronic surveillance for domestic security purposes without some level of judicial process. See Intelligence Activities: Hearings on S. Res. 21 Before the sJ Select Comm. to Study Governmental Operations with Respect to Intelligencl Activities of the United States, 94th Cong. I (1975), vols. 1-5; United States v. U.S. Dist. Court, 407 U.S. 297 (1972). The statute provided special protections for U.SJ persons (USPs). See 50 U.S.C. §§ 180l(h)(2), (4), 1802, 1822(a)(l)(B), (a)(l)(A)(iij (2012). In 1994 Congress extended the Court's remit to include ex parte orders fo]" physical search. Intelligence Authorization Act for Fiscal Year 1995, Pub L. No 103-359, § 302(c), 108 Stat. 3423, 3445 (1994) (codified at 50 U.S.C. §§ 1821j App A 12 1829). In 1998, it incorporated mechanisms for pen register/trap and trace (PR/TT), as well as acquiring business records. Intelligence Authorization Act for Fiscal Yeat 1 1999, Pub. L. No. 105-272, §§ 601-02, 112 Stat. 2396, 2404 (1998) (codified at 50 U.S.C. §§ 1841-46, 1861-63) (hereinafter "IAA"). I The USA PATRIOT Act made numerous changes to FISA. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L. No. 107-56, 115 Stat.~ 272. See, e.g., id., at§§ 206, 208, 214, 218, 504, 1003. Congress also expanded the business records provision to include ''the production of any tangible things (including books, records, papers, documents, and other items)." Id. § 215. Whereas before records could only be sought from common carriers, public accommodation facilities, storage facilities, and vehicle rental facilities, records now can be obtained from any business or entity. Compare id. with IAA § 602. In 2005, when section 215 was set to expire, Congress added language requiring that the government establish "reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment)" prior to FISC granting an order. USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177, § 106, 120 Stat. 192, 196 (codified as amended at 50 U.S.C. §1861 (2012)). In 2008, Congress added measures that gave FISC/FISCR oversight over the domestic collection of the communications of non-U.S. persons, as well as U.S. App A 13 persons, believed to be overseas. FISA Amendments Act of 2008, Pub. L. No. 11 Of 261, 121 Stat. 2436, 552, 555, 556. Congress deliberately created FISC as an Article III constitutional court. Foreign Intelligence Electronic Surveillance: Hearings Before the H. Subcomm. on Legis. of I the Permanent Select Comm. on Intell., 95th Cong. 26-31 (1978) (Letter from John M. Hannon, Assist. Attn'y Gen., stating FISC/FISCR ''will be Article III courts")! id at 116 (FISC, comprised of "article III judge[s]" is to be independent "and in nJ I way dependent on the executive branch of Government"); id. at 184 (Letter from I Senator Edward {Ted) Kennedy to the Representative Robert McClory (Feb. 10~ I 1978), stating that FISC is considered within "the constitutional jurisdiction of I Article III courts.") See also id. at 213, 214, 216, 224; 124 Cong. Rec. 10,896 (1978)~ I I 124 Cong. Rec. 28,143 (1978). ' Congress still regards FISC as an Article III court. See 154 Cong. Rec. 804 (2008) ! (alluding to FISC as an Article III court with "inherent power" over its own records] I and balking at the idea that the administration could ''withhold PISA Court opinions and documents that include significant interpretations of law"). See also id. at 809; I Andrew Nolan & Richard M. Thompson, Cong. Res. Serv., R43746, Congressionat I Power to Create Federal Courts: A Legal Overview (2014). Every court, including this one, to confront the question of whether FISC is an 1 I Article III court has answered in the affirmative. In re: Certification of Questions o~ App A 14 Law to the Foreign Intelligence Court ofReview, No. FISCR 18-01, at 8 (FISA Ctl Rev. Mar. 16, 2018); In re Opinions and Orders of this Court Addressing Bulk Collection of Data Under FISA, No. Misc. 13-08, 2017 WL 427591, at *3 (FISA I Ct. Jan. 25, 2017) (hereinafter Collyer Op.); In Re Mot.for Release ofCourt Records,i I 526 F. Supp. 2d 484, 486 (FISA Ct. 2007) (Bates, J.); In re Sealed Case, 310 F.3d 717, 731-32 (FISA Ct. Rev. 2002) (per curiam); United States v. Cavanaugh, 80t F.2d 787, 792 (9th Cir. 1987); In re Kevork, 634 F. Supp. 1002, 1014 (C.D. Cal. 1985), aff'd, 788 F.2d 566 (9th Cir. 1986). 2. U.S. Court ofAppeals for the Federal Circuit In 1982 Congress created the U.S. Court of Appeals for the Federal Circuit by merging the U.S. Court of Customs and Patent Appeals and the appellate division of the U.S. Court of Claims. It consists of sixteen judges appointed by the President. 28 U.S.C. §§ 41, 43 (2012); Federal Courts Improvement Act of 1982, Pub. L. 97164, 96 Stat. 25. The Court has exclusive jurisdiction over (a) civil actions related to patents or plant variety protection; (b) cases arising in the Canal Zone, Guam, the Virgin Islands, or the Northern Mariana Islands; (c) appeals from the U.S. Court of Federal Claims; (d) appeals from decisions of the U.S. Patent and Trademark Office or the U.S. Court of International Trade; and (e) review of certain agency decisions and appeals linked to particular statutory authorities (e.g., §211 of the 1970 Economic Stabilization Act, §5 of the 1973 Emergency Petroleum Allocation Act, App A 15 i and §506(c) of the Natural Gas Policy Act). 28 U.S.C. § 1295 (2012). The court also I has jurisdiction over interlocutory decisions. Id. § 1292. 3. U.S. Court ofInternational Trade The United States Court of International Trade, created by Congress in 19801 I consists of nine judges (not more than 5 of whom can be from the same political I I party), appointed by the President by and with the advice and consent of the Senate 28 U.S.C. § 251(a) (2012); Customs Courts Act of 1980, Pub. L. No. 96-417, § 101, ! 94 Stat. 1727. Located in New York, the Court has exclusive jurisdiction over an){ civil actions arising under certain sections of the 1930 Tariff Act, 1974 Trade Act, and the 1979 Trade Agreements Act; rulings issued by the Secretary of the Treas~ related to certain discretionary decisions impacting trade; any law that provides fo1 revenue from imports or tonnage, tariffs, duties, fees, or other taxes on imports, and I I embargoes or other restrictions on imports. Id. §1581 (2012). It also has exclusive jurisdiction over civil actions related to import commenced by the United States, related counter-, cross-, and third-party claims, civil actions under the North I American Free Trade Agreement or the U.S.-Canada Free Trade Agreement, Id. §§ 1582-1584. The court possesses "all the powers in law and equity of, or as conferre by statute upon, a district court of the United States." Id. § 1585. 4. Judicial Panel on Multidistrict Litigation App A 16 The Judicial Panel on Multidistrict Litigation, established in 1968, consolidates• pretrial proceedings in civil actions involving one or more common questions of fact by transferring the related actions to a designated circuit or district judge. Id. § 1407(b)-(c). The Chief Justice designates the seven circuit and district judges who serve on the panel no two of whm._n can be from the same circuit. Id. § 1407(d). Decisions carry by majority vote. Id. Antitrust actions are excluded from the panel's remit. Id. § l 407(g). 5. Alien Terrorist Removal Court The Alien Terrorist Removal Court {ATRC) of the United States, created in 1996, consists of 5 district court judges appointed by the Chief Justice from 5 of the U.S. judicial circuits. 8 U.S.C. § 1532 (2012). The judges serve five year terms, are eligible for re-designation, and may be jointly appointed to FISC/FISCR. Id. § 1532(a)-(b). The court's decisions are reviewable by the U.S. Court of Appeals for! the District of Columbia. Id.§ 1535. The ATRC has never had an application from the Attorney General for the removal of an alien terrorist and therefore it has never conducted a proceeding. Alien Terrorist Removal Court, 1996-present, Fed. Judicial Ctr., https://www.fjc.gov/history/courts/alien-terrorist-removal-court-1996-present (last visited June 8, 2018). B. Specialized Courts No Longer in Existence At least nine specialized courts created by Congress no longer exist. App A 17 1. Customs Courts The Customs Court appears to have been an Article III court based on the statut~ i designating it as such in 1956, as well as its replacement by the U.S. Court of International Trade. Act of July 14, 1956, Pub. L. No. 84-703, 70 Stat. 532. Othef customs courts previously in existence include the Court of Customs Appeals (thj ! predecessor to the Customs & Patent Appeals Court), the Court of Customs and Patent Appeals, and the Court of Customs. See Act of Aug. 5, 1909, ch. 6, 36 Stat[ I 11, 105; Act of Mar. 2, 1929, ch. 488, 45 Stat. 1475, 1476; Tariff Act of 1930, ch~ I 497, 46 Stat. 590, 738. 2. Emergency Courts ofAppeals I The Emergency Court of Appeals (1941-1961) and Temporary Emergency Court or Appeals ( 1971-1993) served as Article III courts, with Article III judges assigned t<l> I I them. Halleck v. Berliner, 427 F.Supp. 1225, 1251 (D.D.C. 1977); Economit I Stabilization Act Amendments of 1971, Pub. L. No. 92-210, 85 Stat. 743, 74~ I (creating a "Temporary Emergency Court of Appeals, which shall consist of three or more judges to be designated by the Chief Justice of the United States from judgef of the United States district courts and circuit courts of appeals."); Act of Jan. 30, 1942, ch. 26, 56 Stat. 23, 32 (creating "a court of the United States to be known al the Emergency Court of Appeals, which shall consist of three or more judges to b~ : I designated by the Chief Justice of the United States from judges of the United Statt App A 18 district courts and circuit courts of appeals). Congress provided the court with I I district court powers in regard to the jurisdiction conferred on it, with some particulJ exceptions. Id. 3. Commerce Court The Commerce Court (1910-1913) presumably acted as an Article III court as well, as it also had Article III judges assigned. Act of June 18, 1910, ch. 309, 36 Statj 539, 540 (creating the commerce court as "a court of record," "composed of fiv1 judges to be ... designated and assigned thereto by the Chief Justice of the United I I States, from among the circuit judges of the United States, for the period of fiv, years."). The Court was given full powers of a circuit court in regard to cases within its jurisdiction, with the ability to "issue all writs and process appropriate." Id. at 541. 4. Special Railroad Court The Special Railroad Court (1974-1997) appears to have been an Article III courtl I I as Article III judges were assigned by the Judicial Panel on Multidistrict Litigation. i '! Regional Rail Reorganization Act of 1973, Pub. L. No. 93-236, 87 Stat. 985, 9991 The "proceedings shall be conducted by the special court which shall be composed I of three Federal judges who shall be selected by the panel, except that none of the 1. judges selected may be a judge assigned to a proceeding involving any railroad in · reorganization in the region under section 77 of the Bankruptcy Act."). App A 19 5. Court of Claims The court of claims, established in 1855, initially consisted of three judges who held their office during good behavior. An Act to Establish a Court for the I Investigation of Claims against the United States, Act of Feb. 24, 1855, c. 122, 10 I Stat. 612. The statute directed the court to hear and determine claims against the U.S~ government, as well as claims referred to the court by either the Senate or the HousJ I of Representatives. Id. In 1863, Congress authorized the court to render final I judgments, from which an appeal could follow under certain circumstances. Act of I March 3, 1863, c. 92, 12 Stat. 765. For the first several years of its existence, the Court of Claims was considered a ! legislative court, as, after the court adjudicated a claim, no payment was "to be madj, until the claim allowed [had] been estimated for by the Secretary of the Treasury, I and Congress, upon such estimate, [had made] an appropriation for its payment." Gordon v. United States, 69 U.S. (2 Wall.) 561, 562 (1864). ). 8 See also Act ofMarc~ 3, 1863, c. 92, 12 Stat. 765, §14 (''That no money shall be paid out of the Treas~ I for any claim passed upon by the Court of Claims till after an appropriation therefo1 shall be estimated for by the Secretary of the Treasury.") The court explained, Neither the Court of Claims nor the Supreme Court can do anything more than certify opinion to the Secretary of the Treasury, and it depends upon him, in 8 I ! The undelivered opinion was written by Chief Justice Taney and later, wi approval, published in 117 U.S. Appx. 698-99. Williams v. United States, 289 U.S. 553, 563 (1933). : AppA20 the first place, to decide whether he will include it in his estimates of private claims, and if he should decide in favor of the claimant, it will then rest with Congress to determine whether they will or will not make an appropriation for its payment.. Id. As a result, ''Neither court can by any process enforce its judgment; and whethe~ II it is paid or not, does not depend on the decision of either court, but upon the futur~ I I action of the Secretary of the Treasury, and of Congress." Id. In announcing the; judgment, Chief Justice Chase stated, "We think that the authority given to the head: of an executive department. .. to revise all the decisions of that court requiring payment of money, denies to it the judicial power." Id. I Congress responded by repealing section 14 of the statute. Act of Mar. 17, I I I 1866, ch. 19, 14 Stat. 9. Thereafter, the Supreme Court agreed to hear appeals fromi I I the Court of Claims. See De Groot v. U.S., 72 U.S. 419 (1866); United States v. Alire, 73 U.S. 577 (1867); United States v. O'Grady, 89 U.S. 641 (1874); Langford v. United States 101 U.S. 341 (1879). In 1886, the Court squarely held that "as the law now stands, appeals do lie to this court from the judgments of the court of claims, in the exercise of its general jurisdiction." United States v. Jones, 119 U.S. 477, 480 ( 1886). In 1962 the Court further held that the Court of Claims (and the Court of Customs and Patent Appeals) are Article III courts, with judges constitutionally protected in tenure and compensation, making them eligible to sit as a Court of Appeals judge and a U.S. District Court judge. Glidden Co. v. Zdanok, 370 U.S. 530, 569-571 (1962) (plurality opinion). App A 21 In 1982, however, Congress turned the tribunal back into an Article I Court~ I Federal Courts Improvement Act of 1982, Pub. L. No. 97-164, § 105, 96 Stat. 25, 27 (codified as amended at 28 U.S.C. §§ 171-177). See also Williams v. United States, I 289 U.S. 553, 581 (1933) ("[T]he Court of Claims receives no authority, and iJ judges no rights, from the judicial article of the Constitution ... [T]he court derivJ I its being and its powers and the judges their rights from the acts of Congress passe1 in pursuance of other and distinct constitutional provisions.") Currently, it thus I operates as an Article I court, subject to review in the U.S. Court of Appeals for the Federal Circuit (which is an Article III court). 28 U.S.C. §§ l 7l(a), 1295 (2012); sej I also Federal Courts Administration Act of 1992, Pub. L. No. 102-572, 902(a), 106 I I Stat. 4506, 4516 (assigning the name "Court of Federal Claims). IV. ARTICLE I COURTS i One of the earliest distinctions between Article III constitutional courts and non~ constitutional courts, alternately called Article I, or legislative courts, came in l 92J with an opinion authored by Chief Justice Marshall: The judges of the superior courts of Florida hold their offices for four years. These courts, then, are not constitutional courts, in which the judicial power conferred by the Constitution on the General government can be deposited. They are incapable of receiving it. They are legislative courts, created in virtue of the general right of sovereignty which exists in the government or in virtue of that clause which enables Congress to make all needful rules and regulations respecting the territory belonging to the United Sates. The jurisdiction with which they are invested is not a part of that judicial power which is defined in the 3d Article of the Constitution, but is conferred by AppA22 Congress in the execution of those general powers which that body possesses over the territories of the United States. . Am. Ins. Co. v. 356 Bales o/Cotton (Canter), 26 U.S. (1Pet.)511, 546 (1828). Since that time, the Supreme Court has consistently viewed territorial courts as Article I entities. 9 9 See, e.g., Benner v. Porter, 50 U.S. 235, 242 (1850) ("The distinction between the federal and state jurisdictions, under the Constitution of the United States, has no foundation in these territorial governments ... They are legislative governments, and their courts legislative courts, Congress, in the exercise of its powers in the organization and government of the territories, combining the powers of both the federal and state authorities. There is but one system of government, or of laws operating within their limits, as neither is subject to the constitutional provisions in respect to state and federal jurisdiction. They are not organized under the Constitution, nor subject to its complex distribution of the powers of government, as the organic law, but are the creations, exclusively, of the legislative department, and subject to its supervision and control."); Clinton v. Englebrecht, 80 U.S. 434, 447 ( 1871) ("The judges of the supreme court of the territory are appointed by the President under the act of Congress, but this does not make the courts they are authorized to hold courts of the United States. This was decided long since in American Insurance Company v. Canter and in the later case of Benner v. Porter .... There is no Supreme Court of the United States, nor is there any district court of the United States, in the sense of the Constitution, in the territory of Utah. The judges are not appointed for the same terms, nor is the jurisdiction which they exercise part of the judicial power conferred by the Constitution or the general government. The courts are the legislative courts of the territory, created in virtue of the clause which authorizes Congress to make all needful rules and regulations respecting the territories belonging to the United States.") (footnotes omitted); Hornbuckle v. Toombs, 85 U.S. 655, 656 (1873) ("[T]he jurisdiction of the territorial courts is collectively coextensive with and correspondent to that of the state courtsa very different jurisdiction from that exercised by the circuit and district courts of the United States."); Good v. Martin, 95 U.S. 90, 98 (1877) ("Territorial courts are not courts of the United States within the meaning of the Constitution, as appears by all the authorities."); Reynolds v. United States, 98 U.S. 145, 154 (1878) ("By sect. 1910 of the Revised Statutes, the district courts of the Territory have the same jurisdiction in all cases arising under the Constitution and laws of the United States AppA23 Congress, over time, has created various other Article I tribunals. It enacted l, courts-martial to adjudicate violations of the Articles of War. See 1 William Winthrop, Military Law and Precedents 4 7-64 (2d ed.) ( 1896). Although ultimately appeal is to the Supreme court, judges are subject to the military chain of commanJ and do not have the protections of good behavior or compensation provided tl I Article III courts. See 10 U.S.C. § 816 (2012); Uniform Code ofMilitary Justice, an. I II I I i I as is vested in the circuit and district courts of the United States; but this does no~ make them circuit and district courts of the United States. We have often s~ decided."); The City ofPanama, 101 U.S. 453, 460 (1879) (Our Constitution, in it~ operation, is co-extensive with our political jurisdiction, and wherever navigablf waters exist within the limits of the United states, it is competent for congress t<i> make provision for the exercise of admiralty jurisdiction ... and in organizin~ territories, Congress may establish tribunals for the exercise of such jurisdiction, or they may leave it to the legislature of the territory to create such tribunals. Courts of the kind, whether created by an act of Congress or a territorial statute, are not, i* strictness, courts of the United States; or, in other words, the jurisdiction with which. they are invested is not a part of the judicial power defined by the third article of thb Constitution, but is conferred by Congress in the execution of the general powef which the legislative department possesses to make all needful rules and regulations respecting the public territory and other public property."); McAllister v. Unitea Sates, 141 U.S. 174, 184 (1891) (The Court's previous "cases close all discussion ... as to whether territorial courts are of the class defined in the third articl~ of the Constitution. It must be regarded as settled that courts in the territories, created under the plenary municipal authority that Congress possesses over the territories of the United States, are not courts of the United States created under the authoritJ conferred by that article."); Romeu v. Todd, 206 U.S. 358, 368 (1907) ("The Distridt Court of the United States for Porto Rico is in no sense a constitutional court of th~ United States, and its authority emanates wholly from Congress under the sanctio~ of the power possessed by that body to govern territory occupying the relation to th~ United States which Porto Rico does.") I I AppA24 16, Pub. L. 81-506, 64 Stat. 107, 113 (1950). 10 Similarly, the U.S. Court of Military Commission Review is a court of record consisting of one of more panels, each of which is composed of appellate military judges assigned by the Secretary of Defense I or appointed by the President, by and with the consent of the Senate. 10 U.S.C. § 950f (2012). Other legislative courts stem from so-called public rights, such as those related ! i to taxes, customs, and administration of public lands. The public rights distinction I was first identified by the Supreme Court in 1855. The Court explained, [T]here are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which congress may or may not bring within the cognizance of the course of the United States, as it may deem proper. Equitable claims to land by the inhabitants of ceded territories form a striking instance of such a class of cases. i Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 2841 I (1855). 11 The U.S. Tax Court has nineteen members, appointed to 15-year terms byi I the President with the advice and consent of the senate. 26 U.S.C. § 7443 (2012). 1 10 Although the U.S. Courts-Martial, like the Military Courts of Appeals, are neither courts of record nor explicitly established under Article I, the Supreme Court has stated that they are Article I courts. See Weiss v. United States, 510 U.S. 163, 166 (1993) (stating that the Military Courts of Criminal Appeals are Article I courts); Id. at 166-167 (stating that the U.S. Courts-Martial are Article I courts). 11 The case also notes, "it is true, also, that even in a suit between private persons to try a question of private right, the action of the executive power, upon a matter committed to its determination by the constitution and laws, is conclusive. Luther v .1 Borden, 7 How. l; Doe v. Braden, 16 How. 635." Id. at 284-285. 1 1· I 1 I AppA25 A key difference between Article I territorial courts and Article III courts relate~ to the "practice, pleadings, and forms and modes of proceeding," as well as their jurisdiction. For Article I courts, such matters are: ~ left to the legislative action of the territorial assemblies, and to the regulations which might be adopted by the courts themselves. Of course, in case of any difficulties arising out of this state of things, Congress has in its power at any time to establish such regulations on this, as well as on any other subject of legislation, as it shall deem expedient and proper. Hornbuckle v. Toombs, 85 U.S. 648, 656-657 (1873). The territorial courts: were not courts in which the judicial power conferred by the Constitution of the federal government could be deposited. They were incapable of receiving it, as the tenure of the incumbents was but for four years. Neither were they organized by Congress under the Constitution, as they were invested with powers and jurisdiction which that body were incapable of conferring upon a court within the limits of a state. Bennerv. Porter, 50 U.S. 235, 242 (1850) (citing Am. Ins. Co. v. 356 Bales ofCotton I (Canter), 26 U.S. (1 Pet.) 511, 546 (1828)). The legislation providing for courtJ tended to set a fixed tenure of office for judges at four years. 12 Others set it at foj years ''unless sooner removed." 13 12 See, e.g., Act of Mar. 26, 1804, ch. 38, § 5, 2 Stat. 283, 284 (Orleans); Act of June 12, 1838, ch. 96, § 9, 5 Stat. 235, 238 (Iowa); Act of Mar. 3, 1849, ch. 121, § 9, ~ Stat. 403, 406 (Minnesota); Act of Sept. 9, 1850, ch. 49, § 10, 9 Stat. 446, 449 (New Mexico); Act of Sept. 9, 1850, ch. 51, § 9, 9 Stat. 453, 455 (Utah); Act of Feb. 28, 1861, ch. 59, § 9, 12 Stat. 174-75 (Colorado); Act of Mar. 7, 1861, ch. 83, § 9, 1~ Stat. 212 (Nevada); Act of Mar. 2, 1861, ch. 86, § 9, 12 Stat. 241 (Dakota); Act of 1863, Act of Feb. 24, 1863, ch. 56, § 2, 12 Stat. 665 (Arizona) (acts cited irl McAllister v. United Sates, 141U.S.174, 185 n.1 (1891)). / 13 See, e.g., Act of June 4, 1812, ch. 95, 2 Stat. 746 (Missouri); Act of Mar. 2, 1819i ch. 49, § 7, 3 Stat. 495 (Arkansas); Act of Mar. 30, 1822, ch. 13, § 8, 3 Stat. 651 I 1 AppA26 This does not mean that non-Article III courts cannot exercise judicial power, bu~ only that they do not "exercise judicial power ... conferred in virtue of the third article of the Constitution." Williams v. United States, 289 U.S. 553, 565-566 (1933) I (holding that the Court of Claims could exercise the judicial power of the Unitedi States). See also Am. Ins. Co., 26 U.S. at 546 (holding that the judicial power of thel United States is not limited to the powers defined under Article III and may be exercised by territorial courts); Freytag v. Comm 'r, 501 U.S. 868, 889 (1991) (stating that some non-Article III tribunals can exercise judicial power). For purposes of this brief I distinguish between three types of Article I courts: (a) territorial courts; (b) military courts; and (c) courts that specialize by region and/or subject matter. 1 I separate these from administrative agency tribunals. But see Andrew Nolan & Richard M. Thompson II, Cong. Res. Serv., R43746, Congressional Power to Create Federal Courts: A Legal Overview I, 11-12 (2014), (dividing non-Article III categories into "legislative courts" and "adjuncts," with the latter category incorporating both administrative agency tribunals and magistrate judges. (Florida); Act of Aug. 14, 1848, ch. 177, § 9, 9 Stat. 326 (Oregon); Act of Mar. 2, 1853, ch. 90, § 9, 10 Stat. 175 (Washington); Act of May 30, 1854, ch. 59, § 9, 10 Stat. 280 (Nebraska); Act of May 30, 1854, ch. 59, § 27, 10 Stat. 286 (Kansas); act of Mar. 3, 1863, ch. 117, § 9, 12 Stat. 811 {Idaho); Act of May 26, 1864, ch. 95, § 9, 13 Stat. 88 (Montana); Act of July 25, 1868, ch. 235, § 9, 15 Stat. 180 (Wyoming); Act of May 2, 1890, ch. 182, § 9, 26 Stat. 85 (Oklahoma) (acts cited in McAllister v. United Sates, 141 U.S. 174, 185 n.2 (1891)). AppA27 j I V. COURTS OF mE DISTRICT OF COLUMBIA The status of the Courts of the District of Columbia has changed over time. Currently, they are considered Article I courts. A series of decisions in the late 19th I I I and early 20th century underscored the status of the courts of the District of I Columbia as legislative courts, established under Congress's plenary power ti govern the District of Columbia. U.S. Const. art. I, §8, cl. 17. Congress could therefore assign them non-judicial functions. For instance, the Supreme Court ofthj . I i District held revisory powers over patent issues, with decisions binding on thJ I I Commissioner of Patents. Butterworth v. United States ex rel. Hoe, 112 U.S. 50 pub~ic utilities commissioJ fixed rates, as well as orders of the Federal Radio Commission. Keller v. Potoma~ ( 1884). The court similarly had revisory powers over I Elec. Co., 261U.S.428 (1923); Fed. Radio Comm 'n v. Gen. Elec. Co., 281U.S.464; (1930). Although the U.S. Supreme Court stated in dicta that the courts of the District of Columbia were legislative courts, it then held that they were constitutional courtsj I I exercising the full judicial power of the United States. 0 'Donoghue v. United States 1 289 U.S. 516 (1933). The Court determined that insofar as the courts carried noni judicial functions, they comported with Congress's U.S. Const. art. I, §8, cl. 171 powers. It considered Article III, §1 as limiting these authorities only in regard ti tenure and compensation, but not in regard to vesting legislative and administrativ1 App A 28 I i powers in the courts. The Court explained, "Congress has as ~uch i power to vesj courts of the District with a variety of jurisdiction and powers as a State legislature; has in conferringjurisdiction on its courts." Id. at 535-546. In 1970, Congress acknowledged that two sets of courts operated in Washington 1 D.C.: (a) Article III courts (federal courts, district courts, and a Court of Appeals for I the District of Columbia), and (b) Article I courts (the equivalent of state and territorial courts). District of Columbia Court Reorganization Act of 1970, Pub. L. i No. 91-358, 84 Stat. 473, 475. The Supreme Court upheld this distinction inPalmore 1 v. United States, 411 U.S. 389 (1973). In that case, the defendant argued that he had the right to be tried before an Article III judge. The Court wrote: "[T]he requirements : of Article III, which are applicable where laws of national applicability and affairs of national concern are at stake, must in proper circumstances give way to accommodate plenary grants of power to Congress to legislate with respect to I specialized areas having particularized needs and warranting distinctive treatment." : Id. at 407-408. VI. ADMINISTRATIVE TRIBUNALS The primary difference between an Article I court and an administrative tribunal is the degree of independents it holds from the executive branch. By statute, the U.S. Tax court, for instance, "is not an agency of, and shall be independent of, the executive branch." 26 U.S.C. § 7441 (2012). The line between the quasi-judicial AppA29 1 functions often undertaken by administrative agencies and the judicial matters tha~ I come before Article I or Article III courts is not always clear. In 1932, the Court allowed a private right (workers' compensation) to be heard by an agency, while still trying to preserve Article III courts' role in determining questions oflaw, as well J I certain matters of fact. Crowell v. Benson, 285 U.S. 22, 27, 49-50, 63-65 (1932). seJI also Pfander, supra, at 659. This case played a central role in the growth of thJ I administrative agencies. Id., citing Richard H. Fallon, Jr., Daniel J. Meltser, & David I L. Shapiro, Hard and Wechsler's The Federal Courts and the Federal System 367 1 . 377 (5th ed. 2003); Richard H. Fallon, Jr., Of Legislative Courts, Administrative Agencies, and Article Ill, 101 Harv. L. Rev. 915 (1988). For purposes of this I brief~ I entities listed under Article I are either (a) statutorily named a court of record; (bj explicitly established under Article I by statute; or (c) stated by the Supreme Coj I or by the reviewing appellate court as being an Article I court. In contrast, those entities listed as administrative tribunals do not fit any of these categories. 14 14 The U.S. Immigration Courts, for instance, are firmly entrenched inside the Department of Justice and not independent. There are no cases from the Supremei Court or Courts of Appeals stating that they are Article I courts; nor does the legislation creating them indicate such. In addition, there are several law revieJI articles indicating they are not Article I courts. See, e.g., Leonard Birdsong, Reforming the Immigration Courts of the United States: Why is There no Will tol Make It an Article I Court?, 19 Barry L. Rev. 17 (2013). i ' AppA30 I VII. AUTHORITY, JURISDICTION & SUPPORT FOR EACH COURT'S CATEGORICAL ASSIGNATION Table A-1: Article ill Courts (Non-specialized) Appointment Appellate Procedural Authority Jurisdiction and Matters Addressed Rules Court Establishing U.S. U.S. CONST. U.S. CONST. Court of last Rules of the 9 Justices appointed by the Supreme President with the advice/consent resort. Supreme Art. ID,§ 1. Art. III, § 2, cl. 1; U.S. CONST. Court of the of the Senate; life tenure, salary Court protection. Art. III. §1; Judiciary United Art. III., § 2, cl. Act of 1869, 16 Stat. 44. 2; 28 u.s.c. §§ States [Westlaw] 1251-60. Jurisdiction: matters involving common law, U.S. Constitution, treaties, federal laws; subject to cases and controversies reQuirement. Art. III, §2. 179 judges appointed by the Decisions Federal U.S. Courts 28 u.s.c. § 28U.S.C.§ 1291; 28 u.s.c. reviewable of Appeal Rules of President with the advice/consent 41; 28 by the U.S. Appellate of the senate; life tenure, salary u.s.c. §43. § 1292. Supreme Procedure, protection; 12 regional courts. Court: 28 promulgated Art. III, §1; 28 U.S.C. § 44. U.S.C.§ and amended 1254. by the U.S. Addresses matters involving Supreme common law, U.S. Constitution, Court treaties, federal laws; subject to [Westlaw] cases and controversies requirement. Art. Ill, §2. Court App A JI Support for Categorical Assignation Art. Ill, §1; 0 'Donoghue v. United States, 289 U.S. 516 (1933); I District of Columbia Court Reorganiz.ation Act of 1970, ~uh. L. No. 91-358, 84 Stat. 473, 4175; Act of Sept. 24, 1789, c. 20, I Stat. 73. I Art. III, §1; See also District of Columbia Court Reorganiz.atiJn Act of1970, Pub. L. No. 91-3S8, 84 Stat. 473, 475 ("Thejudici~l power in the District of Colu~bia is vested in ... the following Fei:leral Courts established pursuant tol article III of the Constitution: (A) The Supreme Court of the United States. (B) The United States <Court of Appeals for the District of I Columbia Circuit. (C) The United States District Court for the District of Columbia."); Act of Mar. 3J 1891, ch. 517, 26 Stat. 826. I 667 judges appointed to 94 Generally: 28 Decisions U.S. District 28 U.S.C.§ Federal Art. III, §I; See also Dist~ct of 132;28 u.s.c. § 1331, reviewable Rules of judicial districts by the President Columbia Court Reorgani~tion Courts with the advice/consent of the by U.S. Civil u.s.c. §§ 28U.S.C. § Act of 1970, Pub. L. No. 9~-358, Procedure, senate; life tenure, salary Court of 1332; 81-131 84 Stat. 473, 475 ("The ju icial (different comprehensively: Appeals: 28 adopted by protection. Art. III, §1; 28 U.S.C. power in the District of Co~umbia § 133. districts in the U.S. 28 u.s.c. §§ U.S.C.§ is vested in ... the followingrederal 1291,28 Supreme each state). 1330-69. Courts established pursu t to Addresses matters involving Court U.S.C.§ article III of the Constitutidn: (A) (Westlaw] common law, U.S. Constitution, 1292. The Supreme Court of the United treaties, federal laws; subject to States. (B) The United State~ Court cases and controversies of Appeals for the Distribt of requirement. Columbia Circuit. (C) The pnited States District Court for the District of Columbia."); Act ofSe~t. 24, 1789, c. 20, 1 Stat. 73 I Article III Courts (Specialized) Court Authority Jurisdiction Establishing U.S. Court 28U.S.C.§ 28U.S.C.§ 41;28 1295;28 of Appeals u.s.c. §43; U.S.C.§ for the Federal Federal 1292. Circuit Courts Improvement Act of 1982, Pub. L. 97164, 96 Stat. 25. Appellate Procedural Rules Court Decisions United States reviewable Court of Appeals for by the U.S. Supreme the Federal Court:28 Circuit, Rules of Practice. U.S.C.§ 1254. This is a modified version of the Federal Rules of Appellate Procedure [Westlaw] Appointment and Matters Addressed 12judges appointed by the President with the advice/consent of the senate; life tenure, salary protection. 28 U.S.C. § 44 Support for Assignation I Act ofJuly 28, 1953, §1, 6~ Stat. 226; Glidden Co. v. Zdanok, 31i0 U.S. 530 (1961) (holding the Cofl of Claims and the Court of Customs and Patent Appeals to be Aft. III Created in 1982 with mc1·g~r of Courts); Elgin v. Dep't ofTr~asury, U.S. Court oi Customs and Patent 567 U.S. 1, 17 (2012) (stathlg the Appeals and the appellate Federal Circuit is an articl~ III division of the U.S. Court of court). Claims, the U.S. court of appeals for the federal circuit consists of sixteen judges appointed by the President. The court has exclusive jurisdiction over (a) civil actions App A 32 related to patents or plant variety protection; (b) cases arising in the Canal Zone, Gu~ the Virgin Islands, or the Northern Mariana Islands; (c) appeals from the U.S. Court of Federal Claims; (d) appeals from decisions of the U.S. Patent and Trademark Office or the U.S. Court of International Trade; and (e) review of certain agency decisions and appeals linked to particular statutory authorities (e.g., §211 of the 1970 Economic Stabili7.3tion Act, §5 of the 1973 Emergency Petroleum Allocation Act, and §506(c) of the Natural Gas Policy Act. 28 U.S.C. § 1295. It also has jurisdiction over interlocutory decisions. 28 U.S.C. § 1292. For further discussion of the areas addressed by the court see Richard J. Pierce, Jr., The Relationship Between the District ofColumbia Circuit and Its Critics, 61 Geo. Wash. L. Rev. 797 (1999). AppA33 U.S. SOU.S.C.§ 1803(a). Foreign Intelligence Surveillance Court sou.s.c.§ 1803(a). Created in 1978 in response to Decisions Rules of reviewable Procedure Church Committee hearings to ensure judicial oversight over by the U.S. for the electronic foreign intelligence Foreign Foreign Intelligence Intelligence collection. Surveillance Surveillance Court, Chief Justice designates 11 Court of pursuant to district court judges from at least Review: SO sou.s.c.§ 7 circuits, no fewer than 3 of U.S.C.§ 1803(g). whom reside within 20 miles of 1803(b). D.C. 50 U.S.C. § l 803(a) Op. at *3 (Collyer, J. ); Jn Re ¥._ot. for Release ofCourt Records, 526 F. Supp. 2d 484, 486 (FISA Ct.,2007) (Bates, J.); Jn re Sealed Case~) I0 F.3d 717, 731-32 (FISA Ct. Rev. 2002) (per curiam); U.S. . Cavanaugh, 807 F.2d 787, 7~2 (9th Cir. 1987); In re Kevork, 634 Supp. 1002, 1014 (C.D. Cal. 1985) aff'd, 788 F.2d 566 (9th Cir. 1986). r I U.S. SOU.S.C.§ 1803(b). Foreign Intelligence Surveillance Court of Review. sou.s.c. § 1803(b). U.S. Court 28U.S.C.§ 2Sl(a). of International Trade 28 U.S.C.§§ 1581-85. Decisions reviewable by the U.S. Supreme Court: 50 U.S.C.§ 1803(b). Rules of Procedure for the Foreign Intelligence Surveillance Court of Review, pursuant to SO USC§ 1803(1!). Decisions Rules of the reviewable U.S. Court of by the Court International of Appeals Trade [Westlaw] for the Federal Circuit: 28 u.s.c. § 129S(a)(S). Court may hold hearing/rehearinRS en bane. Chief Justice designates 3 district court or courts of appeal judges to serve for seven years. 50 § 1803(b). u.s.c. The Court acts as the appellate court for FISC. Founded in 1980. Consists of 9 judges (not more than 5 of whom can be from the same political party), appointed by the President by and with the advice and consent of the Senate. 28 § 251 Exclusive jurisdiction over any civil actions arising under certain sections of the 1930 Tariff Act, AppA34 u.s.c. I Op. at *3 (Collyer, J.); In Re ~ot.for Release of Court Records, 5 1 6 F. Supp. 2d 484 (FISA Ct. 2007) (Bates, J.), *3; In re Sealed Cdse, 310 F.3d 717, 731-32 (FISA Ctl Rev. 2002) (per curiam); United Sates v. Cavanaugh, 807 F.2d 787, 7~2 (91h Cir. 1987); In re Kevork, 634 ~· Supp. 1002, 1014 (C.D. Cal. 1985), aff'd, 788 F.2d 566 (9th Cir. 19t6). 28 U.S.C. § 251(a) ("The coprt is a court established under artic~e III of the Constitution of the Ur ited States.") Alien Terrorist Removal Court of the United States 8 U.S.C.§ 1532. 8 u.s.c. § 1533. 1974 Trade Act, and the 1979 Trade Agreements Act; rulings issued by the Secretary of the Treasury related to certain discretionary decisions impacting trade; any law that provides for revenue from imports or tonnage, tariffs, duties, fees, or other truces on imports, and embargoes or other restrictions on imports. 28 U.S.C. § 1581. It also has exclusive jurisdiction over civil actions related to import commenced by the United States, related counter-, cross-, and thirdparty claims, civil actions under the North American Free Trade Agreement or the U.S.-Canada Free Trade Agreement, 28 U.S.C. §§ 1582-1584. The court possesses "all the powers in law and equity of, or as conferred by statute upon, a district court of the United States.,, 28 U.S.C. § 1585. 8 U.S.C. § 1532 (The Chief Jusfice Decisions Rules for the 5 district court judges appointed designates five Article III district by Chief Justice from 5 of the Alien reviewable court judges to constitute thd U.S. judicial circuits for five year Terrorist by the U.S. ATRC). Removal terms. 8 U.S.C. §1532 Court of Appeals for Court of the the District United States Upon application of Attorney of Columbia: [Westlaw] General, have jurisdiction of removal of alien terrorists. 8U.S.C.§ As of2018, 0 applications, 0 1535. oroceedings. I App A 35 Judicial 28U.S.C.§ Panel on 1407(d). Multi district Litigation 28U.S.C.§ 1407(a). Decisions may only be permitted by extraordinary writ, which shall be filed in the appropriate court of appeals: 28 U.S.C.§ 1407(e). Rules of Procedure of the United States Judicial Panel on Multidistrict Litigation, pursuant to 28U.S.C.§ 1407(t). [Westlaw] Established in 1968, the panel 28 U.S.C. § 1407(d) (The cof.t is consolidates pretrial proceedings made up of seven Article Illju<Iges). in civil actions involving one or more common questions offact by transferring the related actions to a designated circuit or district judge. The Chief Justice designates the 7 circuit and district judges who serve on the panel no two of whom can be from the same circuit. Decisions carry by majority vote. Antitrust actions are excluded from the panel's remit. 28 U.S.C. §1407(d). Specialized Article I (Legislative) Courts Court or Tribunal Establishing Authority District Court of Guam 48 u.s.c. § 1424(a). District Court of the Virgin Islands 48U.S.C. § 161l(a), 1614. Jurisdiction Appellate Court Gove ming Rules Territorial 48 u.s.c. Reviewable Civil Local §1424(b)-(c); by U.S. Rules of Court of 48 U.S.C.§ Practice before Appeals for 1424-3. the District the Ninth Court of Guam Circuit: 48 U.S.C.§ 1424-3. 48U.S.C.§ 161l(b); 48 U.S.C.§ 1612;48 Reviewable by U.S. Court of Aooeals for Local Rules of Civil Procedure of the District AppA36 Appointment and Matters Addressed Support for I Assignation I Jurisdiction that of U.S. district court, · including diversity and bankruptcy. 48 U.S.C. § 1424 (b). Originaljurisdiction in all other causes not specifically vested in other courts. 48 U.S.C. § 1424(c). President appoints judge for 10 years, removable for cause, salary that of district court judge. 48 U.S.C. § 1424b(a). Court of record; legislature may vest jurisdiction over all causes in Virgin Islands outside of areas other courts have exclusive iurisdiction. 48 U.S.C. Art. IV, §3. Art. IV, §3. u.s.c.§ 1613a. the Third Circuit: 48 U.S.C.§ 1613a. Court of the Virgin Islands United States District Court for the Northern Mariana Islands Civil Local Rules District Court for the Northern Mariana Islands 48 U.S.C.§ 1821(a). 48 U.S.C.§§ 1822-23. Reviewable by U.S. Court of Appeals for the Ninth Circuit: 48 U.S.C.§ 1823. United States Court of Appeals for the Anned Forces 10 U.S.C.§ 941;10 U.S.C.§ 867; Uniform Code of Military Justice, Art. 67, Pub. L. 81-506, 64 Stat.107, 129 (1950). lOU.S.C. § 867. Decisions reviewable by the Supreme Court: 10 U.S.C.§ 867a. §§ 161 l(a), (b). Includes diversity and bankruptcy, and all criminal/civil proceedings in regard to income tax laws. 48 U.S.C. § 1612. President appoints 2 judges for I0-year terms, removable for cause; no compensation reQ. 48 U.S.C. § 1614. Court of record; part of same judicial circuit of the U.S. as Guam. 48 U.S.C. § 182I(a). President appoints judge for 10 year terms, unless removed earlier for cause; salary that of U.S. district court judges. 48 U.S.C. §182l(b)(l). Jurisdiction that of a U.S. district court, including diversity and bankruptcy. 48 u.s.c. § 1822. Military U.S. Court of Court of record; 5 judges serving 15Appeals for the year terms, appointed from civilian life Armed Forces by the President, by and with the Rules of advice and consent of the Senate. Practice and Judges removable for neglect of duty, Procedure misconduct, or mental or physical [Westlaw] disability. 10 U.S.C. § 941-42. The Note that any Court has jurisdiction over cases in subject to a which the sentence as affinned by any court-martial is military Court of Criminal Appeals also governed extends to death, any cases reviewed by the Uniform by the Court of Criminal Appeals Code of which the Judge Advocate General Military Justice, orders sent to this Court, and by 10 U.S.C. part granting of petitions after review by the 47. Court of Criminal Appeals. IO U.S.C. § 867. AppA37 Art. IV, §3. United States vtI Denedo, 556 U.S. 04 (2009). The NMCCAandC~ are Article I tribunals. Id at 9~ 2; 10 § 941 ("The Court i~ established und~r article I of th~ Constitution."). u.s.c. Anny Court of Criminal Appeals 10 U.S.C.§ 866(a); 32 C.F.R.§ 150.1. NavyMarine Corps Court of Criminal Appeals 10 u.s.c. § 866(a); 32 C.F.R. § 150.1. Air Force Court of 10 u.s.c. § 866(a); 32 lOU.S.C.§ Decisions 866(b); 10 reviewable u.s.c. § 869; by the 10 u.s.c. § Court of 862;32 Appeals for C.F.R.§ the Armed 150.2. Forces: 10 U.S.C.§ 867. Decisions lOU.S.C.§ 866(b); 10 reviewable u.s.c. § 869; by the Court of 10 u.s.c. § 862;32 Appeals for the Armed C.F.R.§ 150.2. Forces: 10 u.s.c. § 867. lOU.S.C.§ 866(b); 10 u.s.c. § 869; Decisions reviewable by the Courts of Criminal Appeals Rules of Practice and Procedure,32 C.F.R. part 150; Army Corps of Criminal Appeals Rules of Practice and Procedure Courts of Criminal Appeals Rules of Practice and Procedure, 32 C.F.R. part 150; Navy-Marine Corps of Criminal Appeals Rules of Practice and Procedure Courts of Criminal Anneals Rules AppA38 Each Court of Criminal Appeals is composed of one or more panels, each composed of not less than three appellate military judges. Appellate militia judges may be commissioned officers or civilians, each of whom must be a member of the bar of a Federal court or the highest court of a State. 10 U.S.C. § 866(a). The Court has jurisdiction over all cases of trial by court-martial that have a sentence that extend to death, dismissal, dishonorable or bad-conduct discharge, or confinement for 1 year or longer, and any case referred to the Court by the Judge Advocate General. 10 U.S.C. §§ 866(b), 869(d). See ACCA Appointment and Matters Addressed, supra. Weiss v. United Stttes, 510 U.S. 163, 11 6168 (1994) (stating that the Court;f Military Revi were Article ~ courts). Note ~~n 1994, the Mili Courts of Review I were renamed 1to Courts of Cri~nal Appeals to more clearly reflect 1he appellate judicia role of the tribunals. JSee S. Rep. No. 103-282, at 230 (1994); Rep. No. 103-70~, at 737-38 (1994 c1onf. Rep.). United States Denedo, 556 U.S 904 (2009). Th $.R. f NMCCAandC~ are Article ~ tribunals. Id. at 12. See also AC< A Support fo1 Assignation, si. vra. See ACCA Appointment and Matters Addressed, supra. See ACCA Sutor! for Assignati n, supra. Criminal Appeals C.F.R. § 150.1. 10 § 862;32 C.F.R.§ 150.2. u.s.c. Court of Appeals for theAnned Forces: 10 U.S.C.§ 867. Coast Guard Court of Criminal Appeals 10 § 866(a); 32 C.F.R.§ 150.1. u.s.c. lOU.S.C.§ 866(b); 10 § 869; lOU.S.C. § 862;32 C.F.R.§ 150.2. Decisions reviewable by the Court of Appeals for theAnned Forces: 10 § 867. Jurisdiction in general: lOU.S.C. § 817. General courtsmartial: 10 U.S.C.§ 818. Special courtsmartial: 10 Decisions reviewable by the relevant Court of Criminal Appeals or a judge advocate: 10 § 866; 10 United States CourtsMartial lOU.S.C.§ 816; Uniform Code of Military Justice, art. 16, Pub. L. 81-506, 64 Stat. 107, 113 (1950). u.s.c. u.s.c. u.s.c. u.s.c. § of Practice and Procedure, 32 C.F.R. part 150; Air Force Court of Criminal Appeals Rules of Practice and Procedure Courts of Criminal Appeals Rules of Practice and Procedure, 32 C.F.R.part 150; Coast Guard Court of Criminal Appeals Rules of Practice and Procedure Manual for Courts-Martial (MCM), United States (2016 ed.), which includes the Rules of Court Martial. The MCMis reviewed annually, per 32 C.F.R. § 152.1. 869;10 App A 39 See ACCA Appointment and Matters Addressed, supra. See ACCA Sup1ort for Assignatio , supra. Court-martial may be convened by the President, the Secretary of Defense, the commanding officer of a unified or specified combatant command, or several other members of the military as defined in I 0 U.S.C. §§ 822-24. A military judge shall preside over a court-martial and shall be a commissioned officer of the armed forces who is a member of the bar ofa Federal court or a member of the bar of the highest court of a State and who is certified to be qualified for duty as a Artif "Pursuant to I of the Constituti n, Congress ha established three iers of military courtsl At t• the trial level courts-martial f which there are ee types: summarr' special, and genert." Weiss v. United Stf(tes, 510 U.S. 163, lf6- U.S.C.§ 819. Summary courtsmartial: 10 U.S.C.§ 820. U.S.C.§ 862; 10 U.S.C.§ 864. [Westlaw 2012 ed.] United States Court of Appeals for Veterans Claims 38U.S.C.§ 7251. 38U.S.C. § 7252. Decisions reviewable by the U.S. Court of Appeals for the Federal Circuit: 28 U.S.C.§ 7292. U.S. Court of Appeals for Veterans Claims, Rules of Practice and Procedure, [Westlaw] United States Court of Military Commission Review lOU.S.C. § 950f(a). lOU.S.C.§ 950d; 10 U.S.C.§ 950f(c). Decisions reviewable by U.S. Court of Appeals for the District of Columbia: lOU.S.C. § 950g(a). U.S. Court of Military Commission Review Rules of Practice military judge by the Judge Advocate General of the armed forces of which such military judge is a member. 1O U.S.C. § 826(b). Each armed force has court-martial jurisdiction over all persons subject to the UCMJ, having the ability to try such persons for any offense punishable by the UCMJ, and the ability to try any person who by the law of war is subject to trial by military tribunal. 10 U.S.C. §§ 816-21. Court of record; composed of at least three and not more than seven judges, appointed by and with the advice and consent of the Senate, for terms of 15 years. 38 U.S.C. § 7253. The court has exclusive jurisdiction to review decisions of the Board of Veterans' Appeals. 38 U.S.C. § 7252. Court of record consisting of one or more panels, each composed of not less than three judges of the Court. Judges are either appellate military judges assigned by Secretary of Defense or appointed by the President, by and with the consent of the Senate. 10 U.S.C. § 950f. The Court has jurisdiction to hear appeals from any military commission. 10 U.S.C. § 950c. Ret?ion- and Subiect-specific AppA40 167 (1994) (citadon omitted). 38 u.s.c. §72il ("There is here y established, unter Article I of th Constitution of~e United States, a ·ourt of record to b 1 known as the U~ted States Court f I Appeals for Vet,rans Claims'') Jn re Khadr, 823 f.3d 92, 96 (D.C. ~ir. 2016) <stated thr the Military Commissions Act of 2009 establishetl an co~1 of Article I record). I D.C. Court of Appeals D.C.Code§ 11-701; D.C. Code§ 11101; District D.C.Code §§ 11-721 to -723. of Columbia Court Reform and Criminal Procedure Act of 1970, Pub. L. 91358, 84 Stat. Decisions reviewable by the U.S. Supreme Court: D.C.Code § 11-102. Initially, D.C. Superior and D.C. Court Rules of the D.C. Court of of Appeals seen as Art. I courts [Art. I, §8, cl. 17; Federal Radio Comm'n v. Appeals, pursuant to Pub. General Electric Co., 281 U.S. 464, L. 91-358, D.C. 468 (1930) (''the courts of the District Code§ 11-743. of Columbia are not created under the judiciary article of the Constitution but [Westlaw] are legislative courts."; Katz, Federal Legislative Courts, 43 Harv. L. Rev. 894, 899-903 (1930)] In 1933, SCOTUS ruled Art. III Court. [O'Donoghue v. United States, 289 U.S. 516 (1933)] 473, 475. Superior Court of the District of Columbia D.C.Code§ 11-901; D.C. Code§ 11101; District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub. L. 91- D.C.Code§ 11-921 to 925. Decisions are reviewable by the District of Columbia Court of Appeals: D.C.Code § 721. District of Columbia Court Reorganiza1ion Act of 1970, Pub. L. No. 91-358, 84 sjat. 473, 475 ("Th following Di~lf Columbia co established purs t to article 1 of e Constitution: (A) The District of Columbia Court of Appeals. l(B) The Superior Co~rt of the District of Columbia."] I In 1970, Congress re-designated as Art. I courts [District of Columbia Court Reorganization Act of 1970, Pub. L. No. 91-358, 84 Stat. 473, 475 ("The following District of Columbia courts established pursuant to article 1 of the Constitution: (A) The District of Columbia Court of Appeals. (B) The Superior Court of the District of Columbia."] Superior Court District of Columbia Court District of Col~a Rules of Civil Reorganization Act of 1970, Pub. L. Court Reorganiza ion No. 91-358, 84 Stat. 473, 475 ("The Procedure Act of 1970, Pub L. [Westlaw] following District of Columbia courts No. 91-358, 84 S t. established pursuant to article 1 of the 473,475 Constitution: (A) The District of following Distric of Columbia Court of Appeals. (B) The Columbia co Superior Court of the District of established pursurnt Columbia."] to article 1 of ~e Constitution: (A~e District of Colu ia ("'3 AppA41 358, 84 Stat. 473,475. United States Court ofFederal Claims United States Tax Court 28 U.S.C.§ 171(a). 26U.S.C.§ 7441. 28U.S.C.§ 1491. 26 u.s.c. § 7442. Decisions reviewable by the Court of Appeals for the Federal Circuit: 28 U.S.C.§ 1295(a)(3). Rules of the United States Courts of Federal Claims, prescribed by authority granted in 28 U.S.C.§ 2503(b) [Westlaw] Decisions reviewable by the Court of Appeals in which the taxpayer resides: 26 U.S.C.§ 7482. Rules of Practice and Procedure of the United States Tax Court, prescribed by authority granted in 26 u.s.c. § 7453 [Westlaw] 16 members appointed for 15 year terms by the President with the advice and consent of the Senate. 28 U.S.C. § 171-2. Salary set to same rate as district court judges. 28 U.S.C. § 172(b) Removal by the Court of Appeals for the Federal Circuit "only for incompetency, misconduct, neglect of duty, engaging in the practice of law, or physical or mental disability." 28 u.s.c. 6 176. 19 members appointed for 15 year terms by the President with the advice and consent of the Senate; salary set to same rate as district court judges. 26 u.s.c. § 7443. It is not an agency of, and shall be independent of, the executive branch. 26 u.s.c. § 7441. Removal after notice and opportunity for public hearing for inefficiency, neglect of duty, or malfeasance in office. 26 U.S.C. § 7443. Jurisdiction conferred by Internal Revenue Code of 1939 and Revenue Act of 1926. other laws. '\j·1> ,\ .+2. Court of Appealsj (B) The Superior C~urt of the District rf Columbia."l 28 u.s.c. § 17r) (''The court i declared to be a court established un1er article I of th Constitution of the United Statesi 26 u.s.c. § 74~1. (''There is her~y established, un er article I of theI Constitution ore United States, a ourt of record to ~ known as the U 'ted States Tax Cou .") I I --- United States Bankruptcy Courts 28U.S.C.§ 151. 28 U.S.C.§ 157. Decisions Federal Rules reviewable of Bankruptcy by the U.S. Procedure, promulgated district and amended by courts or Bankruptcy the U.S. Supreme Court Appellate [Westlaw] Panel (BAP): 28 U.S.C.§ 158. Unit of the district court to be known as bankruptcy court of that district. 28 u.s.c. §151. Number of judges depends upon district; appointed by majority of district court (or chief judge ifno majority) to 14 year tenns. Judges serve as judicial officers of the Art. III district court within which they operate. 28 U.S.C. §152. Removal "only for incompetence, misconduct, neglect of duty, or physical or mental disability and only by the judicial council of the circuit in which the judge's official duty station is located. Majority ofjudges must concur. 28 U.S.C. §152(e). N. Pipeline Consr. Co. v. Marathon Pipe Line Co., 458 (1982); Wellness Int 'I NehVork, ltd. v. ~harif, u.s.jso 135 Sup. Ct. 1~32, 1938 (2015) ("Congress haJ also authorized the appointment of bankruptcy 'nd magistrate judges, who do not enjby the protections o~icle III, to assist icle III courts in heir work"). Compensation 92% that of a judge of the district court. 28 U.S.C. §153. Bankruptcy Appellate Panels 28u.s.c. § 158(b)(l). 28 u.s.c. § 158(b)(l). Decisions reviewable by the relevant circuit court of appeals: 28 u.s.c. § 158(d). Vary by Circuit. Ex: First Circuit. Sixth Circuit, Eighth Circuit, Ninth Circuit, Tenth Circuit [Note: Not all Circuits have a BAP]. AppA43 Each district court may provide that any or all cases under title 11 be assigned to bankruptcy court. 28 u.s.c. §157. Panel composed of bankruptcy judges to hear appeals. 28 U.S.C. 158(b)(l). I Appointmentenure, compensa 10n I I I I I Administrative Agency 15 Tribunals Court United States Immigration Courts Authority Establishing SU.S.C.§ 1101(b)(4); 8 U.S.C.§ 1229a;8 C.F.R. § 1003.9(a), (d); 8 C.F.R. § 1003.lO(a). Jurisdiction 8 C.F.R. § 1003.lO(b); 8 C.F.R.§ 1003.9(b), (c). Appellate Court Decisions reviewable by Board of Immigration Appeals: 8 C.F.R.§ 1003.10; 8 C.F.R.§ 1003.38(a). Procedural Rules Immigration Court Practice Manual and Immigration Court Rules of Procedure, 8 C.F.R. §§ 1003.12-47. Appointment Support for Assitnation and Matters Addressed AG appoints as administrative 8 u.s.c. § 1101(b)(4) judges within the Office of the (Immigration juties are Chief Immigration Judge to appointed by the ttorney conduct specified classes of General (AG) as proceedings; judges act as administrative jpdges Attorney General's delegates within the Ex~utive in cases that arise. 8 C.F.R. Office for Immifation 1003.IO(a) Review (EOIR) f.d are subject to superv~sion by the AG); 8 C.Fi.R· § I003.9(a), (d) ~e Office of Chief Immigration Judge (OCIJ) wa~ created within the EO!f. and Immigration Courts refer to the local site~ of the OCIJ where pro~eedings are held before immigration judges); see Leonard Birdsong, Reforming the Immigration Cou~ts of the United States: Why Is There No Will to! Make It stat~tes. u Administrative agencies generally do not automatically acquiesce to federal court decisions and cannot be compelled to acquiesce in federal court interpretations of Richard J. Pierce, Jr., Administrative law Treatise§ 2.9 (4th ed. 2002). For more on this, see Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Admi,,istrative Agencies, 98 Yale LJ. 679 (1989). Although agencies are bound by the law of the case, agencies may exhibit, among other types, intracircuit nonacquiescence, in which e agency refuses to follow as precedent the case Jaw of the court of appeals which reviews its decision. See id. at 683; see 2 Charles H. Koch, Jr. & Richard Murphy, Admin tralive Law & Practice§ 5.66 (3d ed., Wcstlaw current through Feb. 2018). AppA44 Board of Immigration Appeals 8C.F.R.§ 1003.l(a)(l). 8C.F.R.§ 1003.l(b), 8 C.F.R.§ 1003.l(c). Military Commissions (generally) 10 u.s.c. § 948b. 10 u.s.c. § 948d. an Article I Court?, 19 Barry L. Rev. 17 (2013). Decisions Board of AG appoints attorneys to act as 8 C.F.R. § 1003 .1 (The reviewable by Immigration AG delegates in cases that Board of Immigration the proper Appeals arise; Board subject to the Appeals is a body within general supervision of the Court of Practice the Department of Justice Manual, Appeals or Director, Executive office for and is subject to general Attorney prescribed by Immigration Review. 8 C.F.R. supervision of the §1003.1 General: 8 BIA from Director of EOIR). authority given U.S.C.§ 1252(a)(S); 8 in8C.F.R.§ The BIA has jurisdiction to 1003.l(d). hear appeals from decisions of C.F.R. § 1003.l(d)(l)(i); immigrationjudges. 8 C.F.R. § 1003.l(b). 8C.F.R.§ 1003.l(h); U.S. DEP'TOF JUST., BOARD OF IMMIGRATION APPEALS PRACTICE MANuAL,ch. l .4(h) (2017). Decisions Manual for The President is authorized to 10 U.S.C. § 948b ("The establish military reviewable by Military President is authorized to U.S. Court of Commissions, commissions, which may be establish military convened by the Secretary of Military Military commissions under this Commission Commissions Defense or any officer or chapter for offenses official designated by the Review: 10 Trial triable by military Secretary for that purpose. 10 U.S.C. § 950c. Judiciary commission as provided U.S.C. §§ 948b, 948h. A in this chapter.") Rules of Court, and military commission shall have Regulation at least five primary members for Trial by (voting member), each being a commissioned officer of the AppA45 Board of Veterans' Appeals anned forces on active duty. 10 Military Commission U.S.C. §§ 948i, 948m. A military judge shall also be detailed to each military commission according to regulations prescribed by the Secretary of Defense. 10 U.S.C. § 948j. A military commission has jurisdiction to try any alien unprivileged enemy belligerent that has aided the enemy or found to be acting as a spy. 10 U.S.C. §§ 948c, 948d. Gilbert v. Denvinski, I Members of the Board Board of 38U.S.C.§ 38 u.s.c. § 7104. Some decisions appointed by the Secretary, Vet. App. 49, 52 (Vet. final. 38 U.S.C. Veterans' 7101. App. 1990) (stating that §7103. Other Appeals Rules with the approval of the the Court of Veterans of Practice, 20 President, based upon decisions Appeals is a judicial reviewable by C.F.R. § 20.1- recommendations of the tribunal while the BVA is Chairman; each member in .1510. the Court of an administrative [Westlaw] good standing of the bar of a Appeals for state; compensation at rates tribunal). Veterans payable under section 53 72 of Claims: 38 title 5. 38 U.S.C. §§7101A(a), U.S.C.§ (b). 7261(a)(3). Board required to provide a written statement of their findings and conclusions, and reasons/bases for findings and conclusions, on all material issues of fact and law presented on the records, as well as an order granting/denying relief. 38 u.s.c. §7104(d). AppA46 United States International Trade Commission United States Merit Systems Protection Board 19 u.s.c. § 19 u.s.c. § 1332; 19 u.s.c. § 1337. 1330. SU.S.C.§ 1204. Decisions relating to unfair practices in import trade (19 u.s.c. § 1337) are reviewable by the U.S. Court of Appeals for the Federal Circuit: 28 U.S.C.§ 129S(a)(6). United States International Trade Commission Rules of Practice& Procedure, 19 C.F.R. parts 201 & 210 [Westlaw 201 (general application) & 210 (investigations of unfair practices in import trade)] Decisions SU.S.C.§ United States 1204(a); 5 C.F.R. reviewable by Merit Systems § 1201.2; s the Court of Protection C.F.R. § 1201.3. Appeals for the Board Federal Circuit: Practices and Procedures, 5 AppA47 Six commissioners appointed by the President by and with the advice and consent of the Senate for five year terms, with no reappointment possible. 19 U.S.C. §1330(a). Note more than three commissioners drawn from same political party. Id Enercon GmbH v. Int 'I Trade Comm'n, 151 F.3d 1376, 1381 (Fed. Cir. 1998) ("As the agency charged with the administration of section 337, the ITC is entitled to appropriate deference to its interpretation of the statute"); 19 U.S.C. § 1330(t) ("The Commission shall be considered to be an independent regulatory agency for purposes of chapter 35 of Title 44"). Commission is responsible for investigating the administration and fiscal and industrial effects of the customs laws, relations between rates of duty on raw materials and finished/partly finished products, effects of ad valorem and specific duties, classification of articles in customs laws, etc. 19 U.S.C. § l 332(a). Also responsible for investigating tariff relations between the U.S. and other countries, commercial treaties, preferential provisions, economic alliances, export bounties, imports, and foreign competition in the U.S. 19 u.s.c. §1332<b). The Board is composed of McAdams v. Reno, 64 F.3d three members appointed to 71137, 1141 (8th Cir. year terms by the President, by 1995) (states that the and with the consent of the MSB is an independent, Senate. Members may be quasi-judicial federal removed for inefficiency, administrative agency); 5 28 u.s.c. § 129S(a)(9). Patent Trial and Appeal Board Trademark Trial and Appeal Board 35U.S.C. § 6(a). lSU.S.C.§ 1067. 35 u.s.c. § 6(b). lSU.S.C.§ 1067(a); 15 u.s.c. § 1070. Decisions reviewable by the Court of Appeals for the Federal Circuit: 28 u.s.c. § 129S(a)(4)(A); 35 u.s.c. § 141. Decisions reviewable by the U.S. Court of Appeals for the Federal Circuit: 28 u.s.c. § 129S(a)(4l<Bl; C.F.R. §§ neglect of duty, or 1201.11-.113 malfeasance. 5 U.S.C. §§ [Westlaw] 1201-02. The MSPB carries out its statutory responsibilities and authorities primarily by adjudicating individual federal employee appeals of adverse personnel actions and by conducting merit system studies. Manual of Director, Deputy Director, Commissioner for Patents, Patent Examining Commissioner for Trademarks, Procedure; and administrative patent Board Trial judges constitute the Patent Rules and Trial and Appeal Board. 35 U.S.C. § 6 (a). Administrative Practice Guide (and patent judges to be "persons of competent legal knowledge Judicial Review of and scientific ability who are PTAB appointed by the Secretary of Decisions), 37 Commerce in consultation with C.F.R. parts the Director." Id. 41, 42, and 90 [Westlaw 1, Duty: to review adverse 41, 42, 90] decisions of examiners upon applications for patents, review appeals. 35 U.S.C. §6(b) Trademark Director and Deputy Director of the US PTO, Commissioner Trial and Appeal Board for Patents, Commissioner for Manual of Trademarks, and Procedure; administrative patent judges Trademark constitute the Patent Trial and Appeal Board. 15 U.S.C. § Rules of 1067(b). Practice, AppA48 C.F.R. § 1200.1 ("The Merit Systems Protection Board (the Board) is an independent Government agency that operates like a court"). 35 U.S.C. § 6(a) (The PTAB is located within the United States Patent and Trademark Office (USPTO) and consists of administrative patent judges); Senj11 Pharm. Co. v. Metrics, inc., 96 F. Supp. 3d 428, 434 n.3 (D.N.J. 2015) (stating PTAB is administrative body of theUSPTO). Mata/ v. Tam, 13 7 S. Ct. 1744, 1754 (2017) (stating that the TTAB is under the umbrella of the Patent and Trademark Office (USPTO)); Surefoot LC v. Sure Foot Com., 531 F.3d 1236, 15 u.s.c. § 1071. Armed Services Board of Contract Appeals 41 u.s.c. § 710S(a). 41 U.S.C.§ 7105(e)(1 )(A). Decisions reviewable by the Court of Appeals for the Federal Circuit: 41 u.s.c. § 7107(a)(l); 28 U.S.C.§ 129S(a)(l0). Civilian Board of Contract Appeals. 41 u.s.c. § 710S(b). 41 u.s.c. § 7105(e)(l)(B). Decisions reviewable by the Court of Appeals for the Federal Circuit: 41 U.S.C.§ primarily 37 1239 (10th Cir. 2008) C.F.R. parts 2 Duty: For every case of (stating that TTAB is an & 7. [Westlaw interference, opposition to administrative body of 2& 7) registration, application to the USPTO). register as a lawful concurrent user, or application to cancel the registration of a mark, the TTAB will determine and decide the respective rights of registration. 15 U.S.C. § 1067(a). Rules of the Three-member Board selected . 41 U.S.C. § 7105 (listing and appointed in the same Armed the Board as one of four Services manner as administrative law agency boards). judges, with additional Board of requirement that members Contract Appeals, 48 have at least five years of C.F.R. part 2, experience in public contract Appendix A law. 41U.S.C.§7105(a). [Westlaw] The Board has jurisdiction to decide any appeal from a decision of a contracting officer of the DOD, Dept. of the Army, Dept. of the Navy, Dept. of the Airforce, or NASA relative to a contract made by that department or agency. 41 U.S.C. § 7105(e)(l)(A). The Board consists of 41 U.S.C. § 7105 (listing Rules of Procedure of members appointed by the the Board as one of four Administrator of General agency boards). the U.S. Services (in consultation with Civilian the Administrator for Federal Board of Contracts Procurement Policy) from a App A 49 7107(a)(l); 28 U.S.C.§ 129S(a)(l0). Tennessee Valley Authority Board of Contract Appeals 41 U.S.C.§ 710S(c). 18 C.F.R.§ 1308.21 41 U.S.C.§ 710S(e)(l)(D). Decisions reviewable by the relevant U.S. district court:41 U.S.C.§ 7107(a)(2). Appeals,48 register of applicants C.F.R. part 61 maintained by the Administrator of General [Westlaw] Services. Members shall be selected and appointed to serve in the same manner as administrative judges, with the additional requirement that they have at least 5 years of experience in public contract law. Members are subject to removal in the same manner as administrative law judges. 41 u.s.c. § 7105(b). Tennessee Valley Authority Board of Contract Appeals, 18 C.F.R. §§ 1308.21-27 App A SO The Board has jurisdiction to decide any appeal from a decision of a contracting officer of any executive agency (other than the DOD, Dept. of the Anny, Dept. of the Navy, Dept. of the Airforce, NASA, Postal Service, Postal Regulatory Commission, or Tennessee Valley Authority) relative to a contract made by that agency. 41 U.S.C. § 7105(e){l)(B). The Board of Directors of the 41 U.S.C. § 7105 (listing TVA may establish a board of the Board as one of four contract appeals of the TVA of agency boards). an indeterminate number of members, as well as establish criteria for appointment of said members. 41 U.S.C. § 7105(c). Postal Service Board of Contract Appeals 41 u.s.c. § 710S(d). 41 U.S.C.§ 710S(e)(l)(C). Decisions reviewable by the Court of Appeals for the Federal Circuit: 41 u.s.c. § 7107(a)(l); 28 U.S.C.§ 129S(a)(l0). [Westlaw] (note: did not locate specific rules and procedures beyond those given by statute) Rules of Practice Before the Board of Contract Appeals, 39 C.F.R. part 955 [Westlaw] App A SI The Board has jurisdiction to decide any appeal from a decision of a contracting officer relative to a contract made by the TVA. 41 U.S.C. § 7105(e)(l)(D). The Board consists ofjudges appointed by the Postmaster General that meet the qualifications and serve in the same manner as the Civilian Board of Contract Appeals. 41 u.s.c. § 7105(d). The Board has jurisdiction to decide any appeal from a decision of a contracting officer of the U.S. Postal Service or the Postal Regulatory Commission relative to a contract made by either agency. 41 U.S.C. § 7105(e)(l)(C). 41 U.S.C. § 7105 (listing the Board as one of four agency boards). ... ! APPENDIX B: INHERENT POWERS Amicus note: Hundreds offederal cases establish the inherent powers of the courts. As with Appendix A, in the course of research for the brief I did not find any secondary sources sufficient to give an overview of the range of authorities. Appendix B therefore provides a framework for the inherent powers ofthe courts, as recognized by the judicial branch. I.OVERVIEW The judiciary's inherent powers stem from its duty to ensure the effective administration of justice. 16 Inherent powers recognized by the Courts fall into three broad categories: powers that (I) promote the judiciary's substantive commitment to fairness and justice; (II) facilitate efficiency and fairness in the process of litigation; and (III) protect the integrity, independence, and reputation of the courts. Whether 16 I \ I \I ) I \ I \l I I l \ See In re Peterson, 253 U.S. 300, 312 (1920) ("The question presented is ... whether the court has the inherent power to supply itself with this instrument for the administration of justice."); Michaelson v. United States, 266 U.S. 42, 65-66 (1924) (holding contempt is an inherent power as "[i]t is essential to the administration of justice."); In re Stone, 986 F.2d at 902 (recognizing the court's inherent power to ensure "the efficient and orderly administration of justice"). See also In re Richards, 63 S.W.2d 672, 675 (Mo. 1933) ("a primary object essentially within the orbit of the judicial department is that courts properly function in the administration of justice, for which purpose they were created."); Clark v. Austin, 101 S. W.2d 977, 997 (Mo. 1937). (Ellison, C.J.) ("The ultimate objective of both departments [judicial and legislative] may be the same-the good of the people in the administration of justice; but the powers are fundamentally different. The courts' power essentially is protective and self-serving."). AppB52 these powers are "essential" or merely "beneficial" impacts the extent to which Congress may intervene (see Am. Br. at 17-18). 17 Il. PROMOTE THE SUBSTANTIVE COMMITMENT TO FAIRNESS AND JUSTICE Federal courts use their inherent power to fulfill their substantive commitment to fairness and justice. This includes ensuring full and accurate factual information and access to matters of law; maintaining consistency within and among courts; sealing, unsealing, revoking, or rescinding orders; and undertaking additional steps. In none of these instances does Congress provide explicit authority for the courts to act. Instead, courts do so on the basis of their own inherent power as Article III courts. A. Ensure Full Factual Information and Access to Matters of Law The judiciary has the inherent power to ensure that it has the benefit of full and accurate factual information. They can, for example, appoint auditors, special masters, and commissioners to make investigations into the facts. See Ex parte Peterson, 253 U.S. 300, 304-07, 312-14 (1920) (appointing an auditor "to make a 17 For scholarly discussion of essential inherent powers see Amy Coney Barrett, Procedural Common Law, 94 Va. L. Rev. 813, 844-45 (2008), Pushaw, Jr., supra, 86 Iowa L. Rev. at 741, and Sara Sun Beale, Reconsidering Supervisory Power in Criminal Cases: Constitutional and Statutory Limits on the Authority ofthe Federal Courts, 84 Colum. L. Rev. 1433, 1468-69 (1984). To the extent that scholars disagree, it is in how broadly such powers should be understood. Some say any action bearing a natural relation to the administration of justice falls exclusively within the purview of the courts. See, e.g., Anclien, supra, 64 N.Y.U. Ann. Surv. Am. L. at 53; Linda Mullenix, Unconstitutional Rulemaking: The Civil Justice Reform Act and Separation ofPowers, 77 Minn. L. Rev. 1283, 1320-22 (1993). App B 53 preliminary investigation as to the facts; hear the witnesses; examine the accounts of the parties, and make and file a report in the Office of the Clerk of this Court with a view to simplifying the issues for the jury," explaining that "[c]ourts have .. .inherent power to provide themselves with appropriate instruments required for the performance of their duties," including the "authority to appoint persons unconnected with the court to aid judges in the performance of specific judicial duties, as they may arise in the progress of a cause."); Ruiz v. Estelle, 679 F.2d 1115, 1161 (5th Cir. 1982), cert. denied, 460 U.S. 1042 (1983)("[R]ule 53 does not terminate or modify the district court's inherent equitable power to appoint a person, whatever be his title, to assist in administering a remedy."); Schwimmer v. United States, 232 F.2d 855, 865 (8th Cir. 1956), cert. denied, 352 U.S. 833 (1956) ("Beyond the provisions of Rule 53 ... for appointing and making references to Masters, a Federal District Court has 'the inherent power to supply itself with this instrument for the administration of justice when deemed by it essential."' (internal citation omitted)); Heckers v. Fowler, 69 U.S. (2 Wall.) 123, 127-29 (1864) (upholding inherent authority of a court to appoint a referee to hear/determine all issues, with the consent of the parties). Aff'd by Fed. R. Civ. P. 53. Access to accurate information includes the power to ensure a fair and robust evidentiary record. As recognized by the Supreme Court, the judiciary can, on its own authority, use discovery procedures in habeas cases. Harris v. Nelson, 394 U.S. App B 54 286, 290 ( 1969). It can allow post-trial depositions. United States ex rel. Consol. Elec. Distribs., Inc. v. A/tech, Inc., 929 F.2d 1089, 1091-92 (5th Cir. 1991). It can require that witness statements be produced. Jencks v. United States, 353 U.S. 657, 668-69 (1957). It can make in limine rulings. Luce v. United States, 469 U.S. at 38, 41 n. 4 (1984 ). Lower courts further recognize the inherent powers of the courts to exclude, admit, or strike evidence or exhibits on grounds of fairness. Unigard Sec. Ins. Co. v.LakewoodEng'g&Mfg. Corp.,982F.2d363,368(9thCir.1992); Walker v. Action Indus., Inc., 802 F.2d 703, 712 (4th Cir. 1986); Admiral Theatre Corp. v. Douglas Theatre Co., 585 F.2d 877, 897-98 (8th Cir. 1978). Courts also can require parties to attend hearings regarding missing evidence. Brockton Sav. Bank v. Peat, Marwick, Mitchell & Co., 771F.2d5, 11-12 (1st Cir. 1985). Courts also have the inherent power to issue and answer letters rogatory to obtain evidence from an individual within the jurisdiction of a foreign court. In re Letter Rogatory, 523 F.2d 562, 564 (6th Cir. 1975) ("[l]t has been held that federal courts have inherent power to issue and respond to letters rogatory ... "); United States v. Reagan, 453 F.2d 165, 173 (6th Cir. 1971); United States v. Staples, 256 F.2d 290, 292 (9th Cir. 1958). Indeed, the Sixth Circuit's very definition letters rogatory recognizes such power, as well as the direct relationship between it and the administration of justice: "[T]he medium, in effect, whereby one country, speaking through one of its courts, requests another country, acting through its own courts and App B 55 by methods of court procedure peculiar thereto and entirely within the latter's control, to assist the administration of justice in the former country; such request being made, and being usually granted, by reason of the comity existing between nations in ordinary peaceful times." In re Letter Rogatory, 523 F.2d at 563 n.1. Pari passu, lower courts have recognized broad judicial authority to ensure that matters of law are fully addressed. For instance, courts can require parties to enter a memorandum of law. Alameda v. Sec'y ofHealth, Educ. & Welfare, 622 F.2d 1044, 1047 (1st Cir. 1980). They can require counsel to serve standby. In re At/. Pipe Corp., 304 F.3d 135, 143 (1st Cir. 2002); Arthur Pierson & Co. v. Provimi Veal Corp., 887 F.2d 837, 839 (7th Cir. 1989); United States v. Bertoli, 994 F.2d 1002, 1018 (3d Cir. 1993). They can require parties to retain a lawyer. J.D. Pharm. Distribs., Inc. v. Save-On Drugs & Cosmetics Corp., 893 F.2d 1201, 1011-12 (5th Cir. 1977). They can assign attorneys for pretrial actions. Jn re Air Crash Disaster at Fla. Everglades on Dec. 29, 1972, 549 F.2d 1006, 1011-12 (5th Cir. 1977). And they can appoint amici curiae. Jn re Utils. Power & Light Corp., 90 F.2d 798, 800 (7th Cir. 1937). B. Ensure Consistency Within and Among Courts To ensure consistency, courts have the inherent power, derived from common law, to ensure stare decisis as a matter of both horizontal and vertical parity. This power essentially reflects a policy decision of the court that the effective administration of AppB 56 justice requires consistency. Agostini v. Felton, 521 U.S. 203, 235 (1997) ("[S]tare decisis is not an inexorable comm~nd, but instead reflects a policy judgment that in most maters it is more important that the applicable rule of law be settled than that it be settled right."). C. Seal, Unseal, Revoke, or Rescind Orders The Supreme Court has recognized the inherent power of courts to seal, unseal, revoke, or rescind orders. They can revoke or rescind orders at any point prior to final judgment in a civil case. Marconi Wireless Tel. Co. of Am. v. United States, 320 U.S. 1, 47-48 (1943). This includes the inherent the authority to revoke orders granting bail. Fernandez v. United States, 81 S.Ct. 642 (1961). The lower courts have similarly recognized the inherent powers of the courts to modify or lift protective orders. In re "Agent Orange" Prod. Liab. Litig., 821 F.2d 139, 145 (2d Cir. 1987), cert. denied, 484 U.S. 953 (1987); Poliquin v. Garden Way, Inc. 989 F.2d 527, 535 (1st Cir. 1993) ("[A] protective order, like any ongoing injunction, is always subject to the inherent power of the district court to relax or terminate the order, even after judgment.") This power persists even when jurisdiction over the relevant controversy has ended. United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990), cert. denied, 498 U.S. 1073 (1991) ("As long as a protective order remains in effect, the court that entered the order retains the power to modify it, even if the underlying suit has been dismissed.") The court "can modify App B 57 a protective order when a third party requests judicial documents after the parties have filed a stipulation of dismissal pursuant to settlement." Agent Orange, 821 F .2d at 143-45. The lower courts also recognize broad inherent judicial authority to seal and unseal records. In re Robert Landau Assocs., 50 B.R. 670, 678 (S.D.N.Y. 1985) ("this court holds that it possesses the inherent authority to seal testimony and enter an order of confidentiality."); United States v. Seugasala, 670 Fed. App'x 641 (9th Cir. 2016) (Mem.); United States v. Shryock, 342 F.3d 948 (9th Cir. 2003); United States v. Mann, 829 F .2d 849, 853 (9th Cir. 1987). This power persists despite efforts by Congress to introduce rules governing the process. Id. (noting that despite Fed. R. Civ. P. 5.2(d), "The court may order that a filing be made under seal ... (and] may later unseal the filing.") The district court's subject matter jurisdiction over the sealed record is not lost when the case is appealed. United States v. Seugasala, 670 Fed. App'x 641 (9th Cir. 2016) (Mem.). Even where there is no third party request, the Court is obliged to consider records filed entirely under seal to determine whether they should be made publicly available. Stern v. Trs. of Columbia Univ., 131 F.3d 305, 307 (2d Cir. 1997). D. Additional Powers The courts have other inherent powers that go directly to the substantive issues of fairness. As recognized by the Supreme Court, they can stay disbursement of funds App B 58 until the revised payments are finally adjudicated. United States v. Morgan, 307 U.S. 183, 197-98 (1939). Courts can also excise jury determinations and order a reduction in an excessive verdict in lieu of a grant of a defendant's motion for a new trial or of a reversal (where the court is appellate). This power stems back to the early days of the Republic. The first recorded use of remittitur was by Justice Story. Blunt v. Little, 3 F. Cas. 760, 762 (C.C.D. Mass. 1822) (No. 1578). It remains a judicial power, even though the rules provide for the grant of a new trial. Fed. R. Civ. P. 59. Nowhere can remittitur be found in statutory form. Amy Coney Barrett, Procedural Common Law, 94 Va. L. Rev. 813, 830 (2008). In the interests of fairness, the court can mediate the impact of common law. It can alter common law rules of procedure. See Funk v. United States, 290 U.S. 371, 382 (1933) ("That this court and the other federal courts, in this situation and by right of their own powers, may decline to enforce the ancient rule of the common law under conditions as they now exist we think is not fairly open to doubt." It can also consolidate questions involving common law and fact. See Bowen v. Chase, 94 U.S. 812, 824 (1876) (acknowledging inherent power to consolidate two cases arising from same controversy). This remains an inherent power despite the presence of Fed. R. Civ. P. 42(a). Courts can discharge a jury from delivering a verdict. United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824). They can rescind ajury discharge order and recall App B 59 the jury for further deliberation. Dietz v. Bouldin, 136 S. Ct. 1885 (2016). They can withdraw a juror mid-trial where it would be "a total failure of justice if the trial proceed." United States v. Coolidge, 25 F.Cas. 622, 623 (C.C.D. Mass. 1815) (No. 14,858). They even can fine jurors who jump out the window to escape jury service. Offutt v. Parrott, 18 F.Cas. 606, 607 (C.C.D.C. 1803) (No. 10,453). ill. FACILITATE FAIR AND EFFICIENT PROCESSES The judiciary has the inherent authority to facilitate fair and efficient processespowers stem from its duty to administer justice. Article III courts can "control and direct the conduct of... litigation without any express authorization in a constitution, statute, or written rule of court." Daniel J. Meador, Inherent Judicial Authority in the Conduct of Civil Litigation, 73 Tex. L. Rev. 1805, 1805 (1995)). Specifically, the court can control its own calendar and manage its docket; ensure the efficient use of resources. A. Control the Judicial Calendar and Docket In 1936 the Supreme Court recognized the inherent authority of the judiciary to manage its docket and courtroom with a view toward the efficient and expedient resolution of cases. Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). The Court recently reiterated this point, noting that the judiciary has the inherent authority, conferred neither rules nor statutes, "to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Goodyear Tire & Rubber Co. v. AppB60 Haegar, 137 S.Ct. 1178, 1186 (2017) (quotingLinkv. Wabash R. Co., 370 U.S. 626, 630-631 (1962)). See also In re At/. Pipe Corp., 304 F.3d 135, 143 (1st Cir. 2002); Arthur Pierson & Co., v. Provimi Veal Corp., 887 F.2d 837, 839 (7th Cir. 1989). These authorities are fairly broad. According to the lower courts, the judiciary can demand that defense counsel commit to a date for trial. United States v. Hughey, 147 F.3d 423, 430-31 (5th Cir. 1998). The court can control the order in which issues will be considered. See Marinechance Shipping, Ltd. V. Sebastian, 143 F .3d 216, 218 (5th Cir. 1998). And it can declare parties ready for trial. See Williams v. New Orleans Pub. Serv., Inc., 728 F.2d 730, 732, n.4 (5th Cir. 1984). B. Ensure the Efficient Use of Resources The judiciary has numerous inherent powers at its disposal to ensure the efficient use of resources. As recognized by the Supreme Court, it can consolidate questions involving common law and fact. See Bowen v. Chase, 94 U.S. 812, 824 (1876) (acknowledging inherent power to consolidate two cases arising from same controversy). Acknowledged by Fed. R. Civ. Pro. 42(a). the judiciary can stay an action pending the completion of a related action in another court. Landis v. N. Am. Co., 299 U.S. 248, 256 (1936) (''the power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.") See Colo. River v. United States, 424 U.S. 800, 817 (1976); Younger v. Harris, 401 U.S. 37, App B 61 43-44 (1971); La. Power & Light Co. v. Thibodaux, 360 U.S. 25, 27-29 (1959); Burfordv. Sun Oil Co., 319 U.S. 315, 332-33 (1943); R.R. Comm'n v. Pullman Co., 312 U.S. 496, 500-01 (1941). According to the lower courts, it can also consolidate cases. See MacAlister v. Guterma, 263 F .2d 65, 68 (2d Cir. 1998). And it can set restrictions on the number of expert witnesses. See Aetna Cas. & Sur. Co. v. Guynes, 713 F.2d 1187, 1193 (5th Cir. 1983). But see United States v. Colomb, 419 F.3d 292, 301-02 (5th Cir. 2005). On similar grounds, courts on their own authority can dismiss action on grounds offorum non conveniens. Courts consider matters of both public and private interest: for instance, which forum has a more direct interest in addressing the matter? How available will compulsory processes be? How burdensome will it be for witnesses? The Supreme Court first sanctioned this doctrine in 1947. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507-08 (1947). (The Court later referenced the power as an example of inherent judicial power. See Chambers v. NASCO, 501 U.S. 32, 44 (1991)). Lower courts recognize a slew of inherent judicial powers similarly directed at efficiency. Courts can restrict pretrial hearing length. See J.S. Pharm. Distribs., Inc. v. Save-On Drugs & Cosmetics Corp., 893 F.2d 1201, 1209 (11th Cir. 1990). They can require parties to have representatives with settlement authority. See In re Stone, 986 F.2d 898, 903 (5th Cir. 1993) ("[D]istrict courts have the general inherent power to require a party to have a representative with full settlement authority present-or AppB62 at least reasonably and promptly accessible-at pretrial conferences). See also In re Novak, 932 F.2d 1397, 1405 (11th Cir. 1991); Luis C. Forteza e Hijos, Inc. v. Mills, 534 F.2d 415, 418 (lst Cir. 1976). They can limit the amount of time counsel can speak. See United States v. Maloof, 205 F.3d 819, 828 (5th Cir. 2000); United States v. Gray, 105 F.3d 956, 964-65 (5th Cir. 1997); Sims v. ANR Freight Sys., Inc., 11 F.3d 846, 849 (5th Cir. 1996). Although the Supreme Court has not addressed whether preclusion doctrine is an inherent power, it could similarly be seen within the scope of this section. Collateral estoppel, res judicata, and preclusion controls relitigation of issues and claims. The doctrine itself has been recognized by the Court. Semtek Int 'I v. Lockheed Martin, 531 U.S. 497, 508 (2001) ("[F]ederal common law governs the claim-preclusive effect of a dismissal by a federal court sitting in diversity.") See also Barrett, supra (arguing that it is an inherent power of the court). IV. PROTECT THE INTEGRITY, INDEPENDENCE, AND REPUTATION OF THE JUDICIARY As part of the administration of justice, courts have the inherent power to take steps to protect the integrity, independence, and reputation of the judiciary. This means that they can prevent fraud upon the court; sanction contumacious behavior; punish for contempt and maintain order in the courtroom. AppB 63 A. Prevent Fraud As recognized by the Supreme Court, the judiciary has the inherent authority to conduct their own, independent investigation to determine whether fraud has occurred. See Universal Oil Products Co. v. Root Refining Co., 328 U.S. 575, 580 ( 1946). The "historic power of equity to set aside fraudulently begotten judgments" is central to judicial integrity because ''tampering with the administration of justice in [this] manner ... involves far more than an injury to a single litigant. It is a wrong against the institutions set up to protect and safe-guard the public." Hazel-Atlas Glass Co. v. Harford-Empire Co., 322 U.S. 238, 246 (1946) (first case in which fraud was declared within inherent powers). See also Universal Oil Prods. Co, 328 at 580; Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991). B. Sanction Contumacious Behavior . The Supreme Court and numerous lower courts have recognized the inherent power of the judiciary to sanction contumacious behavior, such as failure to prosecute, fraud, or acting in bad faith. Fallowing repeated prosecutorial delays, in 1962 the court explained that its authority ''to dismiss sua sponte for lack of prosecution [is] an 'inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Link v. Wabash Railroad Co., 370 U.S. 626, 633 (1962). See also Chambers, 501 U.S. at 44 (citing Link). Such powers are "governed AppB64 not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Link, 370 at 630-631. The judiciary similarly can sanction parties for litigating in bad faith. This is one of the ancient powers of the courts, which dates back (at least) to 3 James I (1605). Tidd's Practice 60 (1794). The Supreme Court first recognized this power in Ex parte Burr, 22 U.S. (9 Wheat.) 529 (1824). It has frequently reaffirmed it. See, e.g., Chambers v. NASCO, Inc., 501 U.S. 32, 45 (1991); Roadway Express, Inc. v. Piper, 447 U.S. 752, 765-66 (1980); Goodyear Tire & Rubber Co. v. Haegar, 137 S.Ct. 1178 (2017) (holding that federal courts have inherent authority to sanction bad-faith conduct). As part of this power, the Court can fine an attorney when a party has "acted in bad faith, vexatiously, wantonly, or for oppressive reasons."' Lyeska, at 258-59 (quotingF.D. Rich Co. v. United States ex rel. Industrial Lumber Co., 417 U.S. 116, 129 (1974)). It can assess attorney fees against counsel. See Roadway Express, 447 U.S. at 765 (although, for the most part, the "American Rule" prohibits fee shifting. See Alyeska Pipeline Serv. Co. v. Wilderness Soc y, 421U.S.240, 259 (1975). "The imposition of sanctions transcends a court's equitable power concerning relations between the parties and reaches a court's inherent power to police itself." Chambers v. NASCO, Inc., 501U.S.32, 46 (1991). While there may already be procedural rules App B 65 in place (indeed, as one scholar argues, "A comprehensive legislative sanctioning scheme has been developed." Robert J. Pushaw, Jr., The Inherent Powers of the Federal Courts and the Structural Constitution, 86 Iowa L. Rev. 735 765 (2001)), courts nevertheless can still sanction under their inherent powers. Chambers, 501 U.S. at 49-50. The court can sanction a party for delaying or disrupting the litigation, or hampering "enforcement of a court order." Hutto v. Finney, 437 U.S. 678, 689 n.14 (1979). And courts can go further. In some circumstances, they can dismiss an appeal or complaint entirely. See In re Prevot, 59 F.3d 556, 565 (6th Cir. 1995); D.P. Apparel Corp. v. Roadway Express, Inc., 736 F.2d 1, 3-4 (1st Cir. 19.84). C. Punish for Contempt and Maintain Order in the Courtroom T.u.nli.t.; 0 ~ally, ~011tempt has been understood to mean misconduct in the presence of "i."" "'vw 1., "usooey mg court orders, or misbehavior by officers of the court. Since the founding, there has been considerable legislation governing this area. See, e.g., Judiciary Act of 1789, ch. 20, §17, 1 Stat. 73, 83 (giving federal judges "discretion" to punish "by fine or imprisonment. .. all contempts of authority in any cause or hearing before the court.") Nevertheless, there are early, and repeated, explicit discussion of court's inherent authority over contempt. See, e.g., Hudson, 11 U.S. (7 Cranch) 32, 34 (1812); United States v. Duane, 25 F. Cas. 920, 922 (C.C.D. Pa. 1801) (No. 14,997) (citing common law roots ofjudicial authority). App B 66 In 1821, even as it upheld the legislature's contempt authority, the Supreme Court compared it to the powers exercised by the courts, which are ''universally acknowledged to be vested, by their very creation, with power to impose silence, respect and decorum in their presence, and submission to their lawful mandates, and as a corollary to this proposition, to preserve themselves and their officers from the approach and insults of pollution." Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 227 ( 1821 ). Certain "auxiliary and subordinate" powers can be exercised by the courts where they are "indispensable to the attainment of the ends" specified. Id. at 225-26. The first time the Court squarely addressed contempt as an inherent power of the courts came in 1874. The Supreme Court explained, The power to punish for contempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs 0f titc (.;Ourts. and l;UH~\,;"iu(.i~~!:· t!"' 1h~ <lue administration of iustic~. ·n1e moment the courts of the United States were called into existence and mvesLt:<l wHil JW'l~d1~Lio11 over any subject, they became possessed of this ·power. Ex parte Robinson, 86 U.S. (19 Wall.) 505, 510 (1874). Fifty years later, the Court reiterated its position: "[T]he power to punish for contempts is inherent in all court, has been many times decided and may be regarded as settled law. It is essential to the administration of justice." Michaelson v. United States, 266 U.S. 42, 65-66 (1924). The following year, the Court recognized that it had a duty to punish for contempt: "a judge must have and exercise [powers of contempt] in protecting the App B 67 due and orderly administration ofjustice and in maintaining the authority and dignity of the court." Cooke v. United States, 267 U.S. 517 (1925). As the court later explained, "The underlying concern that gave rise to the contempt power was not ... merely the disruption of court proceedings. Rather, it was disobedience to the orders of the Judiciary, regardless of whether such disobedience interfered with the conduct of trial." Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 798 (1987) (citations omitted). See also Shillitani v. [Jnited States, 384 U.S. 364, 370 (1966) ("There can be no question that courts have inherent power to enforce compliance with their lawful orders through civil contempt.") The inherent power to punish for contempt is not narrow. To the contrary, Courts can take a number of steps to address it. Courts have the power to appoint an attorney to prosecute defendants for criminal contempt. Young v. United States ex rel. Vuitonn et Fils S.A., 481 U.S. 787, 795 (1987) (quoting Michaelson v. United States ex rel. Chicago, St. P., M & 0. Ry. Co., 266 U.S. 42, .65-66 (1924). See also Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718 (1967) (court may sanction attorneys for "willful disobedience of a court order.") See also Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 428 (1923) (permitting the court to levy the entire cost of litigation as a punishment). "[T]he inherent power extends App B 68 to a full range of litigation abuses." Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991). 18 Not only can courts punish for contempt, but they can bar individuals disrupting a trial from the courtroom. See Illinois v. Allen, 397 U.S. 337 (1970). See also Chambers, 501 U.S. at 44 (citing Illinois). In similar fashion, they can impose silence, respect, and decorum in their presence. Anderson v. Dunn, 19 U.S. 227. See also Chambers, 501 U.S. at 43 (quoting Anderson v. Dunn with approval). D. Regulate the Practice of Law One of the oldest, recognized inherent authorities of the courts is the power they wield over matters related to bar admission and discipline. See Ex parte Burr, 22 U.S. (9 Wheat.) 529, 531 (1824). While such power "ought to be exercised with great caution," it is nevertheless "incidental to all Courts." Id. Cf. Roadway Express, 447 U.S. at 764; Chambers, 501 U.S. at 42-43 (quoting Ex parte Burr, 22 U.S. at 531 ). The judiciary can sanction for unauthorized legal practice. See United States v. Johnson, 327 F.3d 554, 560 (7th Cir. 2003). 19 18 Similar embrace of contempt power as essential to the judicial power marks state court discussions. See, e.g., State v. Johnson, 3 S.C.L. 155, 158 (S.C. 1802) (per curiam) ("Justices of peace have a power derived from the common law, and necessarily attached to their offices, of committing and confining for gross misbehavior in their presence.") 19 State courts further recognize the inherent judicial power to inquiry into an attorney's authority to practice. King ofSpain v. Oliver, 14 F. Cas. 577, 578 (C.C.D. Pa. 1810) (No. 7814) (recognizing authority to inquire into legal qualifications of App B 69 counsel as "inherent in all courts.") They also see it as well within the court's domain to direct and control judicial clerks. Yates v. New York, 6 Johns. 337, 372-73 (N.Y. 1810) (noting courts' inherent authority to control clerks and other officers of the court). App B 70 APPENDIX C: JUDICIAL SCRUTINY OF EXECUTIVE BRANCH CLASSIFICATION AND PUBLICATION OF RELATED MATERIALS Amicus note: The foregoing brief addresses the profound constitutional concerns raised by the Government's claim that (a) the FISC lacks jurisdiction over its own opinions, (b) the public has no right to the law, and (c) the Executive Branch controls judicial opinions. Also concerning is the extent to which the Government's argument is based on a mischaracterization ofSupreme Court doctrine and judicial practice. Department of the Navy v. Egan does not do nearly the work the Government would like it to do. And while Article III courts are at times deferential to Executive Branch assertions ofnational security vulnerabilities, they also routinely and properly push back, inspect documents, and insist that certain materials be made public. Appendix C provides the framing for these cases. I.OVERVIEW In its opening brief to the FISCR, the Executive Branch argued that the request for public access to the court's opinions, and the suggestion that the court has control over what portions of its opinions are released, were "completely devoid of merit." Opening Brief for the United States, In re: Certification of Questions ofLaw to the FISCR, No. 18-01, at 2-3 (FISA Ct. Rev. Feb. 23, 2018) [hereinafter Gov't FISCR Op. Br.]. The Government objected to the FISC engaging in "an independent review of classified national security information, followed by release of information by the FISC, based on the FISC 's supposed authority to override (or ignore) the government's classification decisions." Id at 18-19. Such a step would ''usurp[]the Executive's constitutional function" if the court were to conduct a review and "make[] its own disclosure decisions." Id. Setting the constitutional issues, App C 71 addressed in this brief, to the side, the Government's argument is built on the mischaracterization of a key case and a failure to acknowledge the role that courts actually do play in providing a check on the Executive Branch. II. THE EXECUTIVE MISCHARACTERIZES DEPARTMENT OF THE NA VY V. EGAN The executive mischaracterizes Dep 't of the Navy v. Egan to support its claim that the Executive Branch has complete control of classified information. 20 See Dep 't of 20 A parallel trend is appearing in government submissions to other Article III courts. It has not always been the case: in the years immediately following Egan, the executive appropriately appealed to it in security clearance or background check cases. See, e.g., Brief for Appellees, Stehney v. Perry, 101 F.3d 925 (3d Cir. 1996) (No. 96-5036); Brief for Appellees at 11-12, Ryan v. Reno, 168 F.3d 520 (D.D.C. Sept. 24, 1998) (No. 98-5036), 1998 WL 35240401. The Department of Justice still uses it in access-related contexts. See, e.g., Brief of Defendant-Appellee, Toy v. Holder, 714 F.3d 881 (5th Cir. Oct. 23, 2012) (No. 12-20471), 2012 WL 5294782, at *32. Over the past decade, however, the government has increasingly begun to claim that the case supports a broad reading of Executive Branch power and expected judicial deference. See, e.g., Brief for the Petitioners, Kerry v. Din, 135 S.Ct. 2128 (Nov. 26, 2014), (No. 13-1402), 2014 WL 6706838, at *42; Brief for the United States, General Dynamics Corp. v. U.S., 563 U.S. 478 (Dec. 13, 2010) (Nos. 091298, 09-130), 2010 WL 5099376, at *23; Reply Brief for Defendant-Appellants, ACLU v. Dep 't of Def, No. 17-779, 2017 WL 5152276, at *12-13, *36-37 (2d Cir. Nov. 3, 2017); Brief for Respondents-Appellants, Dhiab v. Obama, 787 F.3d 563 (D.C. Cir. Mar. 6, 2015) (No. 14-5299), 2015 WL 1004459, *41, *42, *48; Brief of the Plaintiff-Appellee, United States v. Sedgahaty, 728 F.3d 885 (9th Cir. Aug. 3, 2012) (No. 6:05-CR-60008-HO), 2012 WL 3342732, at *115; Brief for the Appellees, Tenenbaum v. Ashcroft, 407 Fed. App'x 4 (6th Cir. Dec. 2, 2009) (No. 09-1992), 2009 WL 4831977, at * 17, * 19, *34; Brief for the Defendants-Appellants, John Doe Inc. v. Mukasey, 549 F.3d 861 (2d Cir. Feb. 14, 2008) (No. 07-4943), 2008 WL 6082598, at *42; Brief of Appellant, Horn v. Huddle, 699 F. Supp. 2d 236 (D.D.C. Sept. 24, 2009) (No. 09-5311 ), 2009 WL 6155285, at *3, *27. AppC72 the Navy v. Egan, 484 U.S. 518 (1988). According to the government, Egan supports the proposition that the authority to make national security judgments related to classified material lies solely with the Executive Branch. 21 The executive also uses Egan to buttress the assertion that, unlike the executive, the judiciary is ill-suited to make national security determinations. 22 In its June 2017 opposition to the motion of the ACLU for access to the court's opinions, the government characterized Egan as "holding that predictive judgments related to national security risks 'must be made by those with the necessary expertise in protecting classified information."' United 21 See, e.g., United States' Reply Br. at 6, In re: Certification of Questions ofLaw to the FISCR, No. 18-01 (FISA Ct. Rev. Mar. 5, 2018) [hereinafter U.S. Reply Br.]; Opening Brief for the United States at 21-22, In re: Certification of Questions of Law to the Foreign Intelligence Surveillance Court ofReview, No. 18-01 (FISA Ct. Rev. Feb. 23, 2018) [hereinafter U.S. Opening Br.]; United States' Opposition to the Motion of the ACLU for the Release of Court Records, at 11, In re Opinions and Orders ofthis Ct. Containing Novel or Significant Interpretations ofLaw, No. Misc. 16-01 {FISA Ct. June 8, 2017) [hereinafter U.S. Opp. to Mot. of ACLU in No. Misc. 16-01]; United States' Response to Movant' s En Banc Opening Br. at 6, In re Opinions & Orders of This Court Addressing Bulk Collection of Data Under the Foreign Intelligence Surveillance Act, No. Misc. 13-08 (May 1, 2017) [hereiriafter Gov't En Banc Resp. Br.]; United States' Legal Brief to the En Banc Court in Response to the Court's Order of March 22, 2017, at 11 n.4In re Opinions & Orders of this Court Addressing Bulk Collection of Data Under the Foreign Intelligence Surveillance Act, No. Misc. 13-08 (PISA Ct. No. Apr. 17, 2017) [U.S. Legal Br. to En Banc Ct. in Resp. to Ct. Order]. 22 See, e.g., U.S. Opening Br. at 21 (citing Egan at 529 for "holding that predictive judgments related to national security risks 'must be made by those with necessary expertise in protecting classified information."'); U.S. Opp. to Mot. of ACLU in No. Misc. 16-01, at 13 (raising concern that the FISC might err in making the determination as ''judges with expertise in national security matters cannot 'equal [the expertise] of the Executive Branch,"' with "see also Egan at 529" that those with the necessary expertise must make such determinations). AppC73 States' Opposition to the Motion of the ACLU for the Release of Court Records, at 11, 12, 13, In re Opinions and Orders of this Ct. Containing Novel or Significant Interpretations of Law, No. Misc. 16-01 (FISA Ct. June 8, 2017) [hereinafter U.S. Opp. to Mot. of ACLU in No. Misc. 16-01]; Cf U.S. Opening Br. at 21. These claims do not square with the facts and holding of the case itself, which dealt with a two-track system for an agency to take adverse actions against government employees. See Egan, 484 U.S. at 526; 5 U.S.C. §§ 7511-14. Under the statute, employees had a right to a hearing in their appeal to the Merit Systems Protection Board-a non-Article III tribunal. See 5 U.S.C. §§ 7513(d), 7532(c)(3). What the Court actually held was that the statute did not give the Board control over security clearance determinations. Egan, 484 U.S. at 530-32. 23 That decision had to 23 The Board's presiding official had determined that it was impossible to ascertain whether the denial of the respondent's security clearance was justified, in part because the agency had not provided evidence that it had "conscientiously weighed the circumstances surrounding [the respondent's] alleged misconduct and reasonably balanced it against the interests of national security." App. to Pet. For Cert. 65a, cited and quoted in Egan, 484 U.S. at 523. The government, in response, claimed that the Board could only determine (a) whether the required removal procedures had been followed; and (b) whether a security clearance was a condition for the position. Id. The court noted in response that ''the grant of security clearance to a particular employee, a sensitive and inherently discretionary judgment call, is committed by law to the appropriate agency of the Executive Branch." Id. at 527. The court's analysis was based on the security clearance environment. It noted, "after all," that as Commander in Chief, the President holds the authority "to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch." Id. It then went on to note the Government's '"compelling interest' in withholding national security information from unauthorized persons in App C 74 be made by the appropriate agency inside the Executive Branch with the necessary expertise. Id. at 527. To the extent that the court looked to the Commander in Chief powers, it was as to whether the executive had the authority to classify information in the first place, as well as to give, or deny, access to that information to individuals hired by the Executive Branch. Id. at 527-28. The Court explained, "no one has a 'right' to a security clearance." Id. Despite the Government's effort to credit this case with standing for the broader proposition that the Executive has untrammeled authority to classify materialincluding judicial opinions-the case says nothing of the sort. 24 The court itself the course of executive business." Id. (emphasis added). The court cited in support the case of Snepp v. United States, which dealt with whether a prepublication agreement signed in the course of executive branch employment prevented a former emplooyee from publishing his book without approval from the CIA. Snepp v. United States, 444 U.S. 507, 508 (1980). 24 This problem, while most pronounced in regard to Egan, is not limited to that case. Another case frequently cited in support of overbroad Executive Branch authorities is CIA v. Sims. 471 U.S. 159 (1985). In that case, individuals were seeking access to the names and institutional affiliations of those working on MK.ULTRA. 471 U.S. 178-79. The Court noted that "Congress did not mandate the withholding of information that may reveal the identity of an intelligence source; it made the Director of Central Intelligence responsible only for protecting against unauthorized disclosures." Id. at 180. The Court went on to suggest, "[I]t is the responsibility of the Director of Central Intelligence, not that of the judiciary, to weigh the variety of complex and subtle factors in determining whether disclosure of information may lead to an unacceptable risk of compromising the Agency's intelligence-gathering process." Id. Although the holding was appropriately narrow ("We hold that the Director of Central Intelligence properly invoked § 102(d)(3) of the National Security Act of 1947 to withhold disclosure of the identities of the individual MK.ULTRA researchers as protected "intelligence sources." Id. at 181 ), the Government looks to the case in support of broad judicial deference to the executive App C 75 noted at the beginning of the decision ''the narrow question presented by this case." Id. at 520. The statute in question did not transfer control over security clearances to the Board, as access to classified material within the Executive Branch is overseen by the agency most directly involved in the sensitive areas. Id. at 530-32. III. ARTICLE III COURTS REGULARLY CONFRONT CLASSIFIED MATERIAL According to the Government, the "claim of unilateral FISC power to override the Executive's classification decisions is completely devoid of merit." U.S. Reply Br. at 20-22. For the government, there is no role for the court when it comes to national security information. U.S. Opp. to Mot. of ACLU in No. Misc. 16-01, at 12. See also U.S. Legal Br. to En Banc Ct. in Resp. to Ct. Order at 11 n.4. This assertion turns a blind eye to the actual role that the judiciary plays in scrutinizing executive branch efforts to assert national security interests to prevent information from becoming public. Article III courts routinely confront classified material in the context of litigation. 25 Hundreds, if not thousands, of cases that never branch whenever national security matters are on the line. See, e.g., U.S. Dep't of Justice, Guide to the Freedom of Information Act, Exemption 1, at 6 (2014_, https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/exemptionl .pdf [hereinafter DOJ FOIA Guide] (citing CIA v. Sims in support of the proposition that the judiciary is and ought to be extremely deferential to the executive when national security matters are on the line). 25 See, e.g., Snepp v. U.S. 444 U.S. 507 (1980) (holding that a prior employee of Central Intelligence Agency who published a book on CIA activities in South Vietnam without first submitting it to the agency for prepublication review breached a fiduciary obligation); New York Times v. United States, 403 U.S. 713 (1971) (holding that the Nixon Administration's efforts to prevent publication of classified App C 76 come before FISC involve classified materials, giving rise to (a) Executive Branch assertions of the state secrets privilege, (b) Exemption 1 claims under the Freedom of Information Act (FOIA), (c) use of the Classified Information Procedures Act (CIPA), and (d) other efforts to keep the material from reaching the public domain. From 2001 to 2009, for instance, the Government claimed state secrets in upwards of one hundred cases. Laura K. Donohue, The Shadow ofState Secrets, 159 U. Pa. L. Rev. 77, 87 (2010). The cases involved a wide range of matters: breach of contract; patent disputes; trade secrets; fraud; employment termination; wrongful information violated the First Amendment); United States v. Reynolds, 345 U.S. 1 (1953) (holding in a suit under the Tort Claims Act and motion under the Federal Rules of Civil Procedure for production of the Air Force's accident investigation report following the death of civilians on board a military aircraft, that the cause for state secrets privilege must be reasonably demonstrated by the Government); United States v. Morison, 844 F.2d 1057 (4th Cir. 1988) (Espionage Act prosecution in connection with publication of satellite photographs of Soviet aircraft carrier in Jane's Defence Weekly); United States v. Smith, 780 F.2d 1102 (4th Cir. 1985) (holding that the Classified Information Procedure Act altered the existing law of evidence regarding admissibility); United States v. Marchetti, 466 F.2d 1309 (4th Cir. 1972), cert. denied, 409 U.S. 1063 (1972) (holding that former CIA employee was required to submit any publication 30 days prior to publication to the agency, but limiting the order to the contractual language); In re Guantanamo Bay Litig., 624 F.Supp.2d 27 (D.D.C. 2009) (intervenors moving to require public access to "every factual return in actions challenging the United States' detention of alleged enemy combatants at United States Naval Base in Guantanamo Bay, Cuba."); Stillman v. CIA, 517 F .Supp.2d 32 (D.D.C. 2007) (author of book on Chinese nuclear weapons program brought action against Department of Energy, Department of Defense, and Central Intelligence Agency for delaying prepublication review and challenging the system as an unconstitutional prior restraint); Jabra v. Kelly, 62 F.R.D. 424 (E.D. Mich. 1974) (granting in part and denying in part the government's assertion of state secrets privilege). AppC77 death and personal injury; negligence; allegations of torture; environmental degradation; breach of espionage contracts; defamation; criminal conduct; and assertions of constitutional violations. Id. Since 2009, courts have disposed of another 74 state secrets cases, dealing with everything from defamation, discrimination, and personal injury and wrongful death, to constitutional concerns related to the First, Fourth, Fifth, and Eighth Amendments. State Secrets Archives, Georgetown Law, http://apps.law.georgetown.edu/state-secrets-archive/ (last visited June 12, 2018). FOIA suits, which provide citizens with access to Executive Branch documents, frequently implicate classified material. Under the Freedom of Information Act, Exemption 1 protects information that has been deemed classified ''under criteria established by an Executive order to be kept secret in the interests of national defense or foreign policy" and is "in fact properly classified pursuant to such Executive order."26 5 U.S.C. § 552(b)(l) (2012). The Government makes broad use of 26 Not long after the original passage of FOIA, Members of Congress brought suit against the Executive Branch to compel the President to disclose nine Top Secret and Secret documents prepared in relation to an underground nuclear test. EPA v. Mink, 410 U.S. 73, 74-75 (1973). At that time Exemption 1 related to matters "specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy." Freedom of Information Act, Pub. L. No. 89554, 80 Stat. 250, 251 (1966). The Court found that the statutory language neither authorized nor permitted in camera inspection of the contested documents. Mink, 410 U.S. at 84. Therefore, merely upon a showing that the documents had been classified according to the governing Executive Order as involving "highly sensitive matter that is vital to our national defense and foreign policy" was sufficient to meet App C 78 Exemption 1. Since 1977, it has asserted it in at least 377 FOIA cases to come before the Courts of Appeals and one other court-a fraction of the total. 27 More than 50 cases, the courts have noted the discovery of classified information by defendants and in 89 cases procedures involving classified information. Data Set the standard for Exemption 1. Id. In his concurrence, Justice Stewart invited the legislature to clarify its intent. Id. at 94. Congress responded by amending FOIA, to expressly provide for de novo review by the courts and for in camera review of classified materials. 1974 Amendments to the Freedom of Information Act, Pub. L. No. 93-502, 88 Stat. 1561 (1974); H.R. Rep. No. 93-876, at 127 (1974). Congress also replaced the language (information "required to be classified" under Executive Order) with information "authorized" under the "criteria" of an Executive Order to allow the court, "if it chooses to undertake review of a classification determination, including examination of the records in camera, [to] look at the reasonableness or propriety of the determination to classify the records under the terms of the Executive Order." Id. The committee explained, "The in camera provision is permissive and not mandatory. It is the intent of the committee that each court be free to employ whatever means it finds necessary to discharge its responsibilities." Id. at 128. As acknowledged by the Executive Branch, "In so doing, congress sought to ensure that agencies properly classify national security records and that reviewing courts remain cognizant of their authority to verify the correctness of agency classification determinations." DOJ FOIA Guide, supra, at 4-5. 27 Between 1977 and 2012, the Government claimed Exemption 1 based on national security or foreign affairs in 264 FOIA cases to come before the Courts of Appeals and the D.C. District Court. FOIA Data Set Constructed by Professors Susan Mart and Tom Ginsburg, Obtained and Held by FISC Amicus Curiae May 21, 2018. See also Susan Nevelow Mart & Tom Ginsburg, [Dis-}informing the People's Discretion: Judicial Deference Under the National Security Exemption of the Freedom ofInformation Act, 66 Admin. L. Rev. 725 (2014) (empirical study based on the data set). The D.C. District Court statistics only include 38% of the total FOIA cases heard by them during this period. Id. The numbers thus reflect only a fraction of the total number ofFOIA Exemption 1 cases. The Department of Justice has listed another 113 cases 2013-2018 with references to Exemption 1. U.S. Dep 't ofJustice Court Decisions, U.S. Dep't of Justice https://www.justice.gov/oip/courtdecisions?topic=83 l&body=&date%5Bvalue%5D%5Bmonth%5D=&date%5Bval ue%5D%5Byear%5D= (last visited June 12, 2018). AppC79 held by Amicus Curiae. Hundreds more cases discuss CIPA in the context of civil claims, without engaging the statute directly. See, e.g., Dhiab v. Trump, 852 F.3d 1087 (D.C. Cir. 2018). In addition, dozens of cases cover areas like prepublication review, where the Government is simply trying to keep classified information from becoming public. See, e.g., United States v. Morison, 844 F .2d 1057 (4th Cir. 1988); McGehee v. CIA, 718 F.2d 1137 (D.C. Cir. 1983); Knopfv. Colby, 509 F.2d 1362 (4th Cir. 1975); Marchetti, 466 F.2d at 1309; Bernsten v. CIA, 618 F. Supp. 2d 27 (D.D.C. 2009). IV. ARTICLE III COURTS REGULARLY SCRUTINIZE CLASSIFIED MATERIAL The Government erroneously states that FOIA is the only context in which the courts subject national security classification assertions to scrutiny. See Gov't En Banc Resp. Br. at 6. See also Reply Br. for Def.-Appellants, ACLU v. Dep 't of Def, No. 17-779, 2017 WL 5152276, at *12-13 (2d Cir. Nov. 3, 2017); Br. for the Appellees, Tenenbaum v. Ashcroft, 407 Fed. App'x 4 (6th Cir. Dec. 2, 2009) (No. 09-1992), 2009 WL 4831977, at *48. While Article III courts often abide by Executive Branch national security determinations, when confronted by classified information, they also subject the government claims to scrutiny. A. Non-FOIA Cases App C 80 Nearly fifty years ago, the D.C. Circuit rejected an effort by the Government to claim absolute control over classified documents provided to the courts-the same argument the Government is making in the present case: The government's position-sharpened at oral argument yesterday-is that this determination by the executive official is conclusive upon the court, and the court has no judicial authority to require the production of the documents in the possession of an executive department, once the head of that department has filed this formal claim of privilege. Government counsel further asserts that this executive determination is conclusive even where the document only relates to certain factual material that is essential for disposition of the lawsuit, and even where the document is such that the court may readily separate factual material to be disclosed to the other party from the kind of recommendations and discussion that would be an integral part of the decision-making process. Comm.for Nuclear Responsibility, Inc. v. Seaborg, 463 F. 2d 788, 792 (D.C. Cir. 1971). The D.C. Circuit stated: "In our view, this claim ofabsolute immuni'ty for documents in possession of an executive department or agency, upon the bald assertion of its head, is not sound law." Seaborg, 463 F. 2d 788, 792 (D.C. Cir. 1971). Courts routinely look at material in camera, ex parte, to make their own determination as to whether it should, or should not, be in the public domain. 28 In 28 See, e.g., Mohamed v. Jeppensen DataPlan, 614 F.3d 1070 (9th Cir. 2010) (en bane court reviewing documents claimed to endanger national security in camera, ex parte); Stillman, 517 F. Supp. 2d at 38 (court reviewed manuscript ex parte, in camera along with affidavits from government officials and public source documentation before concluding that the information was properly classified); U.S. v. Moussaoui, 65 Fed. App'x. 881, 888 (4th Cir. 2003) (court noting its duty to review govemm~nt redactions; Penguin Books USA Inc. v. Walsh, 756 F. Supp. 770 (S.D.N.Y. 1991) vacated by Penguin Books USA Inc. v. Walsh, 929 F.2d 69 (2d Cir. 1991) (court finding that the procedures established by Office of Independent Counsel for prepublication review of books by former employees failed to comport App C 81 cases involving prepublication review, courts scrutinize both the material and government claims to secrecy. In Knopf v. Colby, for example, the U.S. Dis~ct Court for E.D. Va. entered an order allowing publication of all but 26 out of 168 items the CIA was trying to suppress. 509 F.2d 1362, 1365, 1366 (4th Cir. 1975), cert denied, 421 U.S. 908 (1975). During the trial, witnesses were called to testify. Id. at 1365. Unable to articulate who had classified the information, or why certain items had been classified, counsel questioned them further. Id. at 1365-66. The District Court judge raised concern ''that the deputy directors were making ad hoc classifications of material after having read the Marchetti-Marks manuscript." Id. at 1366. Even as it overturned the lower court's specific decision in this case, the Court of Appeals noted that in its decision in Marchetti, it had foreseen "no particular problem in separating the grain from [the] chaff," in distinguishing between material properly and improperly classified. Id. at 1367. The Court determined "that the deletion items should be suppressed only if they are found both to be classified and with First Amendment prior restraint standards where comments made following review of former associate counsel's book on Iran-Contra affair lacked clarity, review was not speedy but was subject to undue delay, and form-letter responses lacked specificity); Ellsberg v. Mitchell, 709 F.2d 51, 59 n. 37 (D.C. Cir. 1983) (noting that under the circumstances "careful in camera examination of the [classified] material is not only appropriate ... but obligatory."); Jabra, 62 F.R.D. at 430 (examining the disputed information in camera before granting in part and denying in part government's assertion of the state secrets privilege). App C 82 classifiable under the Executive Order." Id. at 1367 (emphasis added). See also Marchetti, 466 F.2d at 1309. Similarly, in McGehee v. CIA, the court considered whether a former CIA employee's article, revealing CIA disinformation programs in Iran, Vietnam, Chile, and Indonesia, had been appropriately classified as "Secret." 718 F.2d 1137, 1139 (D.C. Cir. 1983). The government misleading characterizes this case as "holding that the court's role was limited to 'merely determin[ing] that the CIA properly classified the deleted items,' as the court 'cannot second-guess' the executive branch's national security judgments." Gov't En Banc Resp. Br. at 6. But that is not what the court said. The District Court had conducted de novo review of the affidavits submitted for in camera inspection and determined that the CIA had appropriately classified the material. McGehee, 718 F .2d at 1140. The Court of Appeals determined that the CIA classification scheme was constitutional in light of the government's substantial interest in national security as well as the fact that the criteria applied was neither overbroad nor excessively vague; that "in reviewing whether specified information reasonably could be expected to cause actual serious harm if divulged, courts should accord deference to the CIA's reasoned explanation of its classification decision," and that, in this case, the material was properly classified. Id. at 1140. "We conclude that reviewing courts should conduct a de novo review of the classification decision, while giving deference to reasoned and detailed CIA explanations of that App C 83 classification decision." Id. at 1148. The court acknowledged that the judiciary also had a role to play in policing the boundaries of the secrecy agreement itself, which did "not extend to unclassified materials or to information obtained from public sources." Id at 1141. Such information could not be censored. The courts further facilitate declassification in prepublication review situations by providing time and a forum for Executive Branch agencies to meet with the parties suing for materials to be made public. See, e.g., Berntsen, 618 F. Supp. 2d at 27 (lawsuit by former covert CIA agent whose manuscript was stuck in prepublication review filed in 2005; August 2008 the PRB completed its review of the 97 items the author wanted to publish and agreed to withdraw its objections to all but 18 of them). Scores of other cases show a judiciary willing and able to press the executive branch on classification claims. 29 In Al-Haramain Islamic Foundation, Inc. v. Bush, a statutory and constitutional challenge brought against the Terrorism Surveillance Program, the court conducted a thorough "independent determination of whether the information is privileged," explaining, "We take very seriously our obligation to review the documents with a very careful, indeed a skeptical, eye, and not to accept 29 Even in specialized Article I courts, while state secrets claim may receive deference, "the validity of the assertion must nonetheless be judicially assessed." Foster v. United States, 12 Ct. Cl. 492 (Ct. Cl. 1987). App C 84 at face value the government's claim or justification ofprivilege." 507 F. 3d 1190, 1203 (9th Cir. 2007). In Hepting v. AT&T Corp., the government had already disclosed to the public the general contours of the terrorist surveillance program-a situation not unlike the one currently before the FISC, where the public already has knowledge, from the Executive Branch, of the existence of the §215 metadata collection program. Because the government contends that the primary reasons for rejecting Plaintiffs' arguments are set forth in the Government's in camera, ex parte materials, the court would be remiss not to consider those classified documents in determining whether this action is barred by the privilege. Hepting v. AT&T Corp., No. C-06-672 VRW, 2006 WL 1581965, at *1 (N.D. Cal. June 6, 2006). The general approach, accepted by Article III courts, is that examination of the Government's claim must be done on an item by item basis. In 1989, the D.C. Circuit addressed the role of the court in "preserving the secrecy of 'classified' information and the private interest of the litigant." In re United States, 872 F. 2d 472, 473 (D.C. Cir. 1989). In that case, the plaintiff had brought a torts claim against the government related to COINTELPRO surveillance. Instead of answering the complaint, the executive moved to dismiss it on numerous grounds, including an invocation of state secrets privilege. The lower court denied the motion, directing the government to answer the complaint. The government sought mandamus, which was denied. The Circuit Court refused to accept the broad assertion by the government, affirming the App C 85 district court's conclusion that "an item by item determination of privilege will amply accommodate the Government's concerns. Id. at 478. It explained, "a court must not merely unthinkingly ratify the executive's assertion of absolute privilege, lest it inappropriately abandon its important judicial role." Id at 478 (emphasis added). For the court, reviewing the Government's claim that material would harm national security "did not reject" the idea that some matters should remain classified. Id. "[O]n the contrary, in stating its reasons for denying the motion to dismiss, the court demonstrated a perceptive understanding of a wholesome respect for the state secrets privilege." Id. B. FOIA and CIPA Courts routinely hold in camera, ex parte hearings in challenges to FOIA Exemption 1 claims. See discussion infra Part V. The same is true of CIPA cases, where district courts are obliged to first ascertain whether the information held by the government is discoverable. Classified Information Procedures Act (CIPA) § 6(a), 18 U.S.C ..A.. app. 3 §6(a) (West 2018). Where it is discoverable. but prh iieged, the court must look to whether the material is material and relevant to the defense-a determination entirely in the district court's discretion. Id § 4; Fed. R. Crim. P. 16(d)(l). For instance, in United States v. Are/, "The district court held a series of ex parte, in camera conferences with the Government relating to the classified information. The court also held an ex parte, in camera conference with defense counsel to assist App C 86 the court in deciding what information would be helpful to the defense." United States v. Aref, 533 F.3d 72, 76-77 (2d Cir. 2015). In United States v. Hamama, the court "reviewed the Government's brief, a classified declaration of a United States Government official, [and] copies of the classified materials that the Government [sought] to withhold from discovery." United States v. Hamama, No. 08-20314, 2010 WL 330375, at *5 (E.D. Mich. Jan. 21, 2010). See also In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 93, 118-19 (2d Cir. 2008) (district court holding five in camera hearings, portions of which were conducted ex parte). The courts' general approach, drawn from Roviaro v. United States, is that where the information is relevant and helpful to the defense, the Government privilege must give way. See Roviaro v. United States, 353 U.S. 53, 60 (1957) (limiting the scope of the informer's privilege); United States v. Moussaoui, 382 F.3d 453, 471-72 (4th Cir. 2004) (applying Roviaro to CIPA); Aref, 533 F.3d at 80 (applying the Rovario standard in the CIPA context); U.S. v. Hamama, 2010 WL 330375, at *3 (E.D. Mich, Jan. 21, 2010) (applying Roviaro to CIPA). V. COURTS CAN AND Do DENY EXECUTIVE BRANCH EFFORTS TO KEEP INFORMATION HIDDEN FROM THE PUBLIC Article III courts do not just review and scrutinize Executive Branch classification assertions, but they also deny Government efforts to keep information hidden from the public. As the D.C. Circuit recognizes, courts "must take seriously the AppC87 government's predictions about the security implications of releasing particular information to the public," but ultimately, a court "make[s] its own decision" about what material should, and should not, remain classified. ACLUv. FBI, 429 F. Supp. 2d 179, 188 (D.D.C. 2006). Sometimes that means releasing information that the government would rather not see light of day. 30 In New York Times v. United States, the Court rejected the executive's national security assertion, holding that it was not strong enough to overcome the First Amendment's prohibition on prior restraint. N.Y. Times, 403 U.S. 713. In Horn v. Huddle, a case in which the government asserted state secrets in response to a Bivens action brought by a former employee of the Drug Enforcement Agency, Judge Royce Lamberth explained, "The deference generally granted the Executive Branch in matters of classification and national security must yield when the Executive attempts to exert control over the courtroom." In re Sealed Case (Horn v. Huddle), 647 F. Supp. 2d 55, 66 (D.D.C. 30 See, e.g., Rahman v. Cherto.ff, No. 05 C 3761, 2008 WL 4534407 (N.D. Ill. Apr. 16, 2008) (district court denying government's invocation of state secrets privilege); Jabra, 62 F.R.D. at 424 (granting in part and denying in part government's assertion of the state secrets privilege); Hepting, 2006 WL 1581965, at *1 (court holding thci~ information did not constitute state secrets where the executive had publicly disclosed the general contours of the "terrorist surveillance program."); Smith, 780 F.2d at 1102 (determining following a CIPA hearing that some of the information could be made public). Even Article I courts note that while deference should be granted to government agencies, "the validity of the assertion must nonetheless be judicially assessed." Foster, 12 Ct Cl. at 492. App C 88 2009) (vacated on other grounds). In that case, the court declassified significant amounts of material after it discovered that the Government had misled it. A. FOIA Determinations In Exemption 1 cases, courts routinely conduct in camera review. In 102 of the 264 FOIA foreign affairs and national security cases that arose between 1977 and 2012, for instance, the Court did so. Forty-nine of these cases resulted in partial disclosure. Data Set held by Amicus Curiae. See also ACLU v. FBI, 429 F. Supp. 2d 179 (D.D.C. 2006) (conducting in camera item-by-item review, and finding 55 of 57 documents properly withheld/ordering remaining 2 documents to be disclosed). While, in many cases, the court upholds the agency determination, in many others, it finds the affidavit inadequate, conducts in camera review and orders the partial or full release of the materials, or requests that the government supplement their affidavit with further showings. In all cases, the final decision in determining whether information should be made public lies with the court. The burden is on the government to demonstrate that the material must be withheld. As one court observed, "[T]he district court may, in its discretion, order in camera review of the unredacted documents themselves. Still, 'the district court's inspection prerogative is not a substitute for the government's burden ofproof, and should not be resorted to lightly."' Halpern v. FBI, 181 F.3d 279, 295 (quoting Church of Scientology v. United States Dep't of the Army, 611 F.2d 738, App C 89 743 (9th Cir. 1980), overruled by Animal Legal Def. Fund v. FDA, 836 F.3d 987 (9th Cir. 2016)) (emphasis added). See also Donovan v. FBI, 806 F.2d 55, 60 (2d Cir. 1986), abrogated on other grounds DOJ v. Landano, 508 U.S. 165 (1993) (stating "It is undisputed that a court confronted with an Exemption 1 claim should accord due weight to the agency's characterization of the information. It must be remembered, however, that the burden is with the agency to justify nondisclosure."). In 1980 the D.C. Circuit articulated a series of factors to determine whether in camera review was required: ( 1) judicial economy; (2) conclusory nature of the agency affidavits; (3) bad faith on the part of the agency; (4) disputes concerning the contents of the documents; (5) an agency request for an in camera inspection; and (6) a strong public interest in disclosure. Allen v. CIA, 636 F.2d 1287 (D.C. Cir. 1980) disavowed by Founding Church of Scientology of Washington D.C., Inc. v. Smith, 721 F.2d 828 (D.C. Cir. 1983) (only with respect to the application of Exemption 2). The D.C. circuit has explained its standard of review for Exemption 1: "The test is not whether the court personally agrees in full with the CIA's evaluation of the danger-rather, the issue is whether on the whole record the Agency's judgment objectively survives the test of reasonableness, good faith, specificity, and plausibility in this field of foreign intelligence in which the CIA is expert and given by Congress a special role." Gardels v. CIA, 689 F .2d 1101, 1105 (D.C. Cir. 1982). AppC 90 See also Larson v. Dep't ofState, 565 F.3d 857, 865 (D.C. Cir. 2009); Pub. Citizen v. Dep't of State, 276 F.3d, 634, 645 (D.C. Cir. 2002); Halperin v. CIA, 629 F.2d 144, 147-48 (D.C. Cir. 1980); Summers v. Dep 't ofJustice, 517 F. Supp. 2d 231, 238 (D.D.C. 2007) (cited in DOJ FOIA Guide, supra, at 5, n.20) (highlighting the importance of reasonable specificity and lack of bad faith). The most common reason for not upholding Exemption 1 is where the government fails to sufficiently support the threat to national security. 31 Courts will not rely on "vague" or "ambiguous" standards. Campbell, 193 F. Supp. 2d. at 38. See also Pub. Citizen v. Dep 't of State, 782 F. Supp. 144 (D.D.C. 1992) (finding a vague claim to anything related to foreign affairs as exempt from FOIA to go well beyond the scope of Exemption 1). Courts examine the material carefully. In a case seeking FBI and CIA files, for example, the court noted that "The agency's 31 See, e.g., Campbell v. U.S. Dep 't ofJustice, 193 F. Supp. 2d 29, 37 (D.D.C. 2001) (following examination of the FBI's affidavits and indices the court concluded that "[a]bsent any further justification or explanation as to why this conclusion must follow from the information's disclosure, the FBI fails to adequately explain a nexus with national security concerns [as] required under Exemption l.") (internal quotations/citations omitted); Armstrong v. Exec. Office of the President, No. 89142, 1995 U.S. Dist. LEXIS 22216 (D.D.C. July 28, 1995) (court reviewed classified documents in camera and determined that the government provided insufficient justification for the redactions, ordering the government to re-process the documents to partially release redacted information); King v. U.S. Dep 't of Justice, 830 F .2d. 210, 224 (D.C. Cir. 1987) ("a categorical description of redacted material coupled with categorical indication of anticipated consequences of disclosure clearly inadequate"); Keenan v. U.S. Dep 't ofJustice, No. 94-1909, slip op. at 8-11 (D.D.C. Mar. 24, 1997) (finding insufficient support for FOIA exemption one where the Vaughn Index merely recites the executive order's language). App C 91 classification and withholding decisions on these two documents appear completely inconsistent and are in no way clarified by the terse and misleading description and justification provided in the Graves affidavit." Jaffe v. CIA, 516 F. Supp. 576, 583 (D.D.C. 1981). Courts also decline to find that information has been properly withheld where there is a defect in the classification process. See, e.g., Hall v. C.I.A., 668 F. Supp. 2d 172, 188 (D.D.C. 2009) (denying summary judgment with respect to documents that were more than 25 years old). Sometimes, the court offers the government further opportunity to defend its efforts to keep information out of the public domain. In 2010, for instance, a district court determined that the government's refusal to disclose audio and video recordings of detainees at Guantanamo Bay in response to a FOIA request from the International Counsel Bureau lacked sufficient justification. Int'/ Counsel Bureau v. Dep 't of Def., 723 F. Supp. 2d 54 (D.D.C. 2010). In that case, it gave DOD further opportunity to justify the withholding. Id. See also Lawyers Comm. For Human Rights v. INS, 721 F. Supp. 522 (S.D.N.Y. 1989) (giving the CIA two weeks to provide a supplementary affidavit "providing a more detailed explanation for its withholdings.") At times the court denies the classification claim altogether, as it did in the 2011 case of Ctr. for Int'/ Envtl. Law v. Office of U.S. Trade Reps. There, the USTR App C 92 responded to requests for its documents by claiming a FOIA National Security Exemption. After considering USTR' s justifications, the court found that USTR failed to "sufficiently demonstrated that disclosure of the document would harm the United States' national security interests." Ctr.for Int'/ Envtl. Law v. Office of U.S. Trade Reps., 777 F. Supp. 2d 77 (D.D.C. 2011). B. CIPA The Classified Information Procedures Act is another statute created to ensure that judicial processes can continue even though classified information is involved. As with FOIA, the statute is careful not to tread on judicial ground. Once a defendant files a notice describing the classified information she "reasonably expects to disclose or cause the disclosures of' at trial, at the government's request, the court must hold a pretrial hearing to address the "use, relevance or admissibility" of the classified information identified in the Section 5 notice. CIPA §§ 5(a), (b). If the court decides that certain information can be used, the government may then move either to replace the classified portion with statements admitting to the relevant facts, or substitute a summary of the information. Id. at.§ 6(c)(l)(A)-(B). If the Court denies the proposed admission or substitution, the government has two choices: either it can file an affidavit of the Attorney General objecting to [the] disclosure of the classified information at issue (requiring the dismissal of the indictment)-unless "the [C]ourt determines that the interests ofjustice would not be served by dismissal App C 93 of the indictment," or the government can file an immediate interlocutory appeal. Id. at§§ 6(e), 7. In either case, the court still has the final say. The standard that is applied in CIPA is not a balancing test. That test was considered and rejected by Congress in its adoption of the statute. Smith, 780 F.2d at 111 (Butner, J., dissenting); United States v. Libby, 453 F. Supp. 2d 35, 42 (D.D.C. 2006). During the hearings on CIPA, DOJ requested language that would make evidence admissible only in circumstances in which it was "relevant and material." Graymail, S. 1482: Hearing Before Subcomm. on Criminal Justice of S. Judiciary Comm., 96th Cong. 3, 18 (1980). That standard would have required the judiciary to balance the probative value of the evidence against the potential harm to national security. Id. at 9, 22. "This standard was rejected by Congress, which stated unambiguously that 'nothing in the [statute] is intended to change the existing standards for determining relevance and admissibility."' Smith, 780 F.2d at 1106 (citing H.R. Rep. No. 96-1436, at 12 (1980) (Conf. Rep.)). When the government again tried to argue this standard, the court rejected it. Libby, 453 F. Supp. 2d 40. The issue was not whether the government had "a legitimate privilege in protecting documents and information concerning national security"-which it did, but the extent of that protection in light of the interests of the administration of criminal justice. Id That was a question for the Court. C. FISC AppC 94 Despite the sensitive nature of the material addressed by the court, FISC and PISCR have released dozens of opinions and orders. 32 Unlike 2007, when Judge 32 See, e.g., Order, In re Certification ofQuestions ofLaw to the Foreign Intelligence Surveillance Court of Review, No. 18-01 (FISA Ct. Rev. Mar. 16, 2008); Certified Question of Law, In re Opinions & Orders ofthis Court Addressing Bulk Collection ofData Under the Foreign Intelligence Surveillance Act, No. Misc. 13-08 (PISA Ct. Rev. Jan. 5, 2018); Order, In re Unknown Foreign Intelligence Surveillance Court Orders, Not Docketed; Order, In re Opinions & Orders of this Court Addressing Bulk Collection ofData Under the Foreign Intelligence Surveillance Act, No. Misc. 13-08 (FISA Ct. Mar. 22, 2017); Opinion and Order, In re Opinions & Orders of this Court Addressing Bulk Collection of Data Under the Foreign Intelligence Surveillance Act, No. Misc. 13-08 (FISA Ct. Jan. 25, 2017); Order, In re Directives Pursuant to Section 105B ofthe Foreign Intelligence Surveillance Act, No. 105B(g) 01-01 (FISA Ct. Dec. 23, 2014); Certification of Question ofLaw,In [REDACTED] A U.S. Person (FISA Ct. Feb 12, 2016) (No. PRITT 2016-[REDACTED]); Opinion and Order, In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from [REDACTED], No. BR 15-99 (PISA Ct. Nov 24, 2015); Order Appointing and Amicus Curiae, Application of the Federal Bureau ofInvestigation for an Order Requiring the Production of Tangible Things, No. BR 15-99 (FISA Ct. Sept. 17, 2015); Primary Order, In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things, No. BR 15-99 (FISA Ct. Aug. 27, 2015); Opinion and Order, In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things, Nos. BR 15-75/ Misc. 15-01; Primary Order, In re Application of the Federal Bureau of Investigation for an Order Requiring the Production ofTangible Things, No. BR 15-75 (FISA Ct. Jun 29, 2015); Opinion and Order, In re Orders of this Court Interpreting Section 215 of the Patriot Act, No. Misc. 13-02 (PISA Ct. Aug. 7, 2014); Primary Order, In re Application of the Federal Bureau ofInvestigation for an Order Requiring the Production of Tangible Things from [REDACTED], No. BR 14-96 (PISA Ct. Jun. 27, 2014); Opinion and Order, In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things, No. BR 14-01 (FISA Ct. Mar. 21, 2014); Opinion and Order, In re Application of the Federal Bureau ofInvestigation for an Order Requiring the Production ofTangible Things, No. BR 14-01 (PISA ~t. Mar. 20, 2014); Opinion and Order, In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things, No. BR 14-01 (FISA Ct. Mar. 12, 2014); Opinion and Order, In re Application ofthe Federal AppC95 Bates first considered the First Amendment right of access claim, now more than 170 orders and opinions are in the public domain. See Br. Am. Curiae at App. A. In 2013 FISC required the government to conduct a declassification review of any opinions that did not overlap with ongoing litigation, noting the "publication would ... assure citizens of the integrity of [FISC's] proceedings." In re Orders of this Court Interpreting Section 215 of the Patriot Act, No. Misc. 13-02, 2013 WL 5460064, at *7 (PISA Ct., 2013). PISC's actions are consistent with the court's own rules. See FISC Rule 62. Bureau ofInvestigation for an Order Requiring the Production of Tangible Things, No. BR 14-01 (PISA Ct. Mar. 7, 2014); Primary Order, In re Application of the Federal Bureau ofInvestigation for an Order Requiring the Production of Tangible Things from [REDACTED], No. BR 14-01 (PISA Ct. Jan. 3, 2014); Memorandum Opinion and Order, In re Application of the Federal Bureau ofInvestigation for an Order Requiring the Production of Tangible Things No. BR 13-158 (FISA Ct. Dec. 18, 2013); Memorandum Opinion and Primary Order, In re Application of the Federal Bureau ofInvestigation for an Order Requiring the Production of Tangible Things from [REDACTED], No. BR 13-158 (PISA Ct. Oct. 11, 2013); Opinion and Order, In re Orders of this Court Interpreting Section 215 of the Patriot Act, No. Misc. 13-02 (FISA Ct. Sept. 13, 2013); Amended Memorandum opinion and Primary Order, In re Application ofthe Federal Bureau ofInvestigation for an Order Requiring Production of Tangible Things from [REDACTED], No. BR 13-109 (PISA Ct. Aug. 29, 2013); Opinion and Order, In re Motion for Consent to Disclosure of Court Records or, in the Alternative, A Determination of the Effect of the Court's Rules on Statutory Access Rights, No. 13-01 (PISA Ct. June 12, 2013); In re Application of the United States for an Order Authorizing the Physical Search of Nonresidential Premises and Personal Property (FISA Ct. June 11, 1981 ), reprinted in S. Rep. No. 97-280, at 16-19 (1981). App C 96 VI. THE GOVERNMENT IS CAPABLE OF PROVIDING SPECIFIC EXPLANATIONS FOR WHY CERTAIN INFORMATION SHOULD NOT BE MADE PUBLIC The foregoing cases demonstrate that the courts play a critical role in determining whether the government has met its burden of establishing that certain information relevant to the administration of justice should not enter the public domain. They also are instructive in showing that the government is entirely capable of providing specific explanations for why certain information should not be made public. 33 In 2009, for example, intervenors moved to require public access to "every factual return in actions challenging United States' detention of alleged enemy combatants at United States Naval Base in Guantanamo Bay, Cuba." In re Guantanamo Bay Litig., 624 F. Supp. 2d 27 (D.D.C. 2009). The court held that, while public access to "every document in every factual return" was not required by the First Amendment the government "was capable of screening returns to identify classified material that could harm national security if publicly released." Id. In 33 See also the Vaughn Index, an itemized index that correlates with each document (or portion thereof) that is withheld from FOIA requests consistent with specific FOIA exemptions and the relevant portion of the nondisclosure justification. 32 C.F .R. § 701.39. It "may contain such information as: date of document; originator; subject/title of document; total number of pages reviewed; number of pages of reasonably segregable information released; number of pages denied; exemption(s) claimed; justification for withholding; etc." Id. Such an index could be made available to the FISC, as a basis for making the determination of which matters of fact would be withheld from publication. App C 97 Lawyers Comm. For Human Rights v INS, the court observed: "It is in both plaintiffs' and the general public's interest to create as full a public record as possible. While it appears that the FBI has attempted to create a full public record, the CIA1s efforts have fallen short." Lawyers Comm. for Human Rights v. INS, 721 F. Supp. 522 (S.D.N.Y. 1989). As a purely empirical matter, the foregoing cases challenge assertions by the Government that the courts do not have any role to play in reviewing classification determinations in the context of the judicial process. To the contrary, they routinely scrutinize government claims that certain information should not be in the public domain. For reasons established in the foregoing brief, such examination is critical if the judiciary is to fulfill its role in the administration of justice. App C 98

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