Executive Power

The Supreme Court's Power To Hear In re EPIC

By Steve Vladeck
Wednesday, July 10, 2013, 9:05 AM

Wells blogged on Monday about EPIC's new original filing in the Supreme Court, seeking mandamus, prohibition, or certiorari from the Justices to review Judge Vinson's now-leaked FISA Court order with regard the section 215 request for Verizon's "business records." Needless to say, the merits of the section 215 question have received a lot of attention, and I don't mean to relitigate that issue here. Instead, I thought I'd take this opportunity to fly my jurisdictional-nerd flag, and explain (below the fold) why I think that (1) the Supreme Court does have both constitutional and statutory authority to entertain such an "original" filing'; but (2) almost certainly won't exercise it because EPIC could have at least tried to obtain similar relief from the FISA Court and/or FISA Court of Review.

I.  The Supreme Court's Constitutional Jurisdiction

Folks likely remember from their constitutional law classes that, under Marbury v. Madison, Congress lacks the power to expand the Supreme Court's "original" jurisdiction (i.e., its power to hear disputes as a matter of first impression). Instead, that authority is limited to the cases expressly identified in Article III, section 2, clause 2 -- "all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party." But it's equally well-established that, even when a particular suit is filed in the first instance in the Supreme Court, the suit only triggers the Court's "constitutional" original jurisdiction if there is no lower court decision that the new suit seeks to overturn.

Put another way, Marbury interposes no bar to using an "original" action to collaterally attack a lower-court decision that is not itself directly appealable. As Justice Souter once put it, such a suit "is commonly understood to be 'original' in the sense of being filed in the first instance in this Court, but nonetheless for constitutional purposes an exercise of this Court's appellate (rather than original) jurisdiction." [Coincidentally albeit tangentially, I recently co-authored an amicus brief in support of just such an application in the habeas context in the case of Georgia death row inmate Warren Lee Hill, Jr., whose execution is set for next Monday evening despite the conclusion of all seven of the mental health professionals to have examined him that he is mentally retarded, and therefore not eligible for capital punishment.]

Nor is there any question in this case that the original filing effectively seeks review of a lower-court decision. Unusual though it is, FISC is part of the Article III hierarchy, and its decisions are ultimately reviewable by the Supreme Court, albeit once an appeal has been taken to the FISA Court of Review. So it seems pretty obvious that there's no constitutional defect in the Supreme Court's power to entertain EPIC's claims.

II. The Supreme Court's Statutory Jurisdiction

In its statement of jurisdiction, the EPIC filing asserts that "This Court's jurisdiction rests on 28 U.S.C. § 1651 and 50 U.S.C. §§ 1803, 1861(f)." This strikes me as exactly right. As I've explained in rather nauseating detail previously, it is well established that the All Writs Act allows appellate courts to exercise forms of appellate review at times and in manners not otherwise provided for by statute, so long as such review is "in aid of" the appellate court's supervisory jurisdiction over the lower court. And under 50 U.S.C. §§ 1803(b) and 1861(f)(3), the Supreme Court has the ultimate authority to review decisions by the FISA Court, as appealed to the FISA Court of Review. So long as the Supreme Court could conceivably review the FISA Court order at issue directly (which, had Verizon challenged it, appealed the denial, and then sought certiorari from an affirmance by the FISA Court of Review, it could have), then the jurisdictional prerequisites of the All Writs Act are satisfied.

III. The Supreme Court's Rules for Extraordinary Relief

Instead, the biggest jurisdictional hurdle to EPIC's petition is probably posed by the Supreme Court's own rules for granting such "extraordinary" relief. Under Supreme Court Rule 20.1,

Issuance by the Court of an extraordinary writ authorized by 28 U.S.C. § 1651(a) is not a matter of right, but of discretion sparingly exercised. To justify the granting of any such writ, the petition must show that the writ will be in aid of the Court's appellate jurisdiction, that exceptional circumstances warrant the exercise of the Court's discretionary powers, and that adequate relief cannot be obtained in any other form or from any other court.

I've explained above why Rule 20's first requirement is satisfied. The second really depends on one's view of the merits, and so we can assume for the sake of argument that such circumstances are in fact present. But the biggest obstacle is the third prong--"that adequate relief cannot be obtained in any other form or from any other court." EPIC asserts as much in their filing, arguing that

Any alternative relief that EPIC could seek is directly limited by [the FISC] order. Both Verizon and the government agents executing this order are granted immunities based on the presumed validity of a court order. Furthermore, the parties to the FISC Order do not serve EPIC’s interests and their right to petition for review does not provide adequate oversight to the judge’s unlawful FISC Order. EPIC can only prevent the application of this unlawful order by having it vacated by this Court.

Although I'm sympathetic to this argument, I think it fails to persuade. After all, the same logic would ostensibly allow EPIC to pursue extraordinary relief via the All Writs Act in the FISA Court itself, or, at the very least, in the FISA Court of Review, using mandamus to obtain appellate review that's otherwise unavailable via statute. Certainly, no statute precludes either the FISC or the FISCR from exercising authority under the All Writs Act.

Thus, although I have virtually no doubt that such an application would be denied, such a denial would likely be on the merits, rather than for lack of jurisdiction. And then there would be not only a record proving that relief in the lower courts was in fact unavailable, but also a lower court decision to directly appeal to the Supreme Court--avoiding the baggage that comes with seeking extraordinary relief directly from the Justices. Especially given that other suits are now pending in the ordinary lower courts raising comparable challenges to FISC's Verizon/section 215 order, it's hard to imagine that the Justices will be inclined to jump the queue with regard to discretion that is so "sparingly exercised."