The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I'm trying to figure out the future of the challenges to the Section 215 telephony metadata collection program. The short answer is, I'm not at all sure what's going to happen. For those who want the long version, here are my very tentative thoughts presented in more-or-less stream-of-consciousness style, posted with the hope that readers can help me figure out what seems like a pretty complex dynamic.
Here's my thinking. Right now there are three pending challenges: The Second Circuit case, now on remand to the SDNY; the Ninth Circuit case, still pending in the Ninth; and the DC Circuit case, also still pending. At this stage on appeal, I believe they're all proceeding as claims for injunctive relief. But right now it's not clear what there is to enjoin. The former Section 215 order expired, although the government may still be querying already-obtained records. Meanwhile, DOJ has applied to the FISC for a new order for bulk telephony metadata to cover the 180-day interim period before the USA Freedom Act's new regime comes into place. The FISC might issue that order but might not, for some complicated reasons I won't go into here.
Let's assume the FISC issues the order. In that case, the first thing that happens is that the ACLU can go to the SDNY to enjoin the order. That will raise the issue of whether the law, at least in the Second Circuit, is that the program is still illegal because the Second Circuit's interpretation still applies; or, alternatively, if the USA Freedom Act should be interpreted as making the program legal in the interim window before the 180 day window elapses. The Second Circuit tried (improperly in my view) to preempt this question with dicta in its earlier decision, but the passage of intervening legislation makes the effect of this dicta uncertain. And no matter how the SDNY rules on that, presumably the losing side just seeks review until the 180-day period runs out. If the FISC issues the order and the SDNY/CA2 enjoins it, I wouldn't be at all surprised if the Supreme Court lifts the injunction in that 180-day window.
But that's only the SDNY case in the 180-day transition window. What about the other pending cases? What should they do in the 180-day window? The Ninth Circuit has asked for briefing on this, but the briefs aren't due for another 10 days. Just eyeballing it, the answer seems pretty complicated. Perhaps the Ninth and DC Circuits will just wait for the clock to run down, at least until the FISC and Second Circuits figure out the current state of statutory law. On the other hand, if the FISC issues the order, the Ninth and DC Circuits might want to hand down their rulings in the 180-day window, as those cases have been pending for a long time. But on the other other hand, who knows what will happen with the ACLU's efforts to enjoin the program in the Second Circuit—that's for the SDNY, the Second Circuit, and the Supreme Court to figure out, with the other circuits in no good position to predict that. So maybe they just wait, or maybe they hand down what they have and just see what happens.
If the FISC doesn't issue the order, then presumably we get some more district court wrangling in the SDNY (does the ACLU try to enjoin access to the already-obtained metadata?). The Ninth and DC Circuits at that point might send their cases back to the district court, too. But that strikes me as only a temporary answer, as at least the DC complaint also sought damages. So even if the injunctive relief ends, do the cases go forward—and other cases like them—on damages grounds? That might at least lead to more Fourth Amendment litigation, with the catch that it's not clear if a Bivens remedy would be available and it's pretty obvious at that outset that qualified immunity would (eventually) apply.
Finally, any appellate decisions (including the Second Circuit's already-published decision) could be vulnerable to vacatur under the Munsingwear doctrine. As SCOTUSblog has helpfully explained, the gist of Munsingwear is that circuit court decisions should ordinarily be vacated when intervening mootness prevents Supreme Court review of the underlying decision. That way a circuit court can't have the last legal word on an issue that the Supreme Court could have weighed in on if the Court had the chance. How Munsingwear might apply is somewhat complicated, but it leaves open the possibility that at least some circuit rulings on Section 215 might be tossed out.
At that point, courts presumably will be dealing with the next set of legal challenges, which I gather will be Fourth Amendment challenges to the USA Freedom Act. So maybe the result of all of this legal wrangling will be nothing, with all of the cases starting over again with the constitutional challenges to the new law instead of the old one.
As always, stay tuned.