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Case number 21-5215, United States of America versus China Diligam America Corporation.

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Ms.

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Kumher for the balance, Mr. Ross for the ability.

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Good morning.

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May I please support you?

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My name is Rachel Kumher and I would like to reserve three minutes for us.

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Your honors, the district court aired as a matter of law.

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by failing to undertake the 50 USC section 1806 G analysis.

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That is, by failing to determine whether due process requires discovery or disclosure of the classified information that the district court found was lawfully surveilled.

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The statutorily required inquiry is distinct from the analysis under section 1806 F regarding whether disclosure may be warranted

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to aid the district court in its review of the legality of the finest surveillance.

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The district court conflated these analyses and should be reversed.

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PGA is in an extremely difficult position defending itself against the black box.

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And Congress addressed that concern with careful and detailed procedural requirements in the FISA statute to protect both agreed parties and the government's interest in classified information.

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Congress directed the District Court to engage in an important sequence of analyses, and with respect to 1806G, it failed to do so.

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In this FISA context, it is of paramount importance that the District Court turn square quarters on procedure.

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Now, while the majority of the District Court's opinion below is redacted, such that I cannot comment upon it, the reference to section 1806G is unredacted.

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and reflects a clear error of law.

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Section 1806F addresses disclosure of classified information about a search to help the district court evaluate the search's lawfulness.

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In contrast, 1806G addresses disclosure of the fruits of the search as required to protect the target's due process rights.

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These are completely different and entirely distinct analyses.

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or review.

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If this is properly before us at all, our review would be de novo.

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That's our position.

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Yes.

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So why the law is very clear.

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You're not entitled this matter to process to classified information.

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Supports an executive action like this.

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It is true that we are not entitled absolutely to classified information, and that's not what we're asking this court for.

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We are entitled to the statutory required determination under 1806 G

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whether we are due process requires disclosure and discovery.

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And the district court did not engage in that statutorily required analysis.

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Why can't we do it?

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We think that you could do it.

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We think that the most appropriate action, given that the congressional statute that Congress directed the district court to make this determination in the first instance, would be to reverse and remain to have the district court make that determination.

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But you're acknowledging it's an over review, right?

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Yeah, yes, right.

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We are something that means we can do absolutely.

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We think that you can and we think that that would be in alignment with both actions by the 6th and 5th circuits where they have conducted an overview of the evidence before it.

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We think that you could do that here.

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Frankly, we would be fine if you did so.

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We think we are entitled to that review.

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If you do it in the first instance, fine.

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We think the best course probably is to reverse and remain because the type of decision that district courts usually make.

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And that's what the statute said, directs the district court to make the decision and they didn't.

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But then of course that would be subject to further review by you.

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You could do it in the first instance.

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And I think, I think that's right.

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We think the district court misunderstood CTA's request for a due process disclosure under 1806G as a due process attack on 1806F's ex parte in-camera review provision.

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But we simply don't challenge that.

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We do not challenge the FISA process as constitutionally affirmed or seek to relitigate this court's hold-in in Belleville that FISA passes constitutional muster.

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We think that we are entitled as Judge Cassidy and Judge Edwards have preference to a determination with respect to whether due process requires disclosure.

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It may be that the evidence that is in the classified materials that I can speak to because I haven't seen any of it, could contain evidence that is helpful to my client's defense.

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It could contain expropriatory materials or certain other materials that due process would require to be disclosed.

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I simply don't know and I ask that this court do that determination or reverse the remand to have the district court do it first.

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I think it's important that in referencing eighteen oh sixty the district court voted this court's decision in Belfield, which doesn't address eighteen oh sixty at all.

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And that Belfield is only relevant here because this court recognized in Belfield that a respondent's difficulties in mounting its defense without access to the relevant materials and found that Congress was also aware of those difficulties.

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and that Congress invade a thoroughly reasonable attempt to balance the competing concerns of individual privacy and foreign intelligence.

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And that balancing includes 1806 G mandate that the district court determine whether due process requires discovery or to scope, which it failed to do, which is why we asked this court reverse.

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Yes, sir.

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Suppose we decide in the FCC case that we can uphold the license revocation

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without reference to any classified information.

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Does that moot out this case?

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No, Your Honor, it's not.

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This is a separate and distinct appeal.

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So we're in this court.

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Why does it matter?

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It matters for the following reasons.

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I mean, this is all about revocation of the license.

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You have a perfectly fair concern that that might rest on classified information, which you haven't seen.

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And

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My hypothetical is just taking that out of the case.

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So what difference does it make?

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I understand.

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So were this court to determine either through its own review of the classified information or if the district court were to make that determination in the first instance, that there in fact were helpful, exculpatory or other discovery that we were entitled to.

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We could use, CTA could use that information either in seeking to have the FCC reconsider its prior revocation

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in defending or seeking other licenses, or I think crucially, in its defense with respect to other federal agencies that we know have access to the classified information that we don't have.

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So it could be that they're an ongoing poison of the tree, right?

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We ought to be able to defend ourselves if there's something in there we can use.

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Suppose we conclude that the classified information is not exculpatory.

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and that the inculpatory unclassified evidence in the FCC record is sufficient to uphold revocation.

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Does that then mood out?

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I don't think it moves it out.

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I think that they are just entirely separate issues.

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We think that you should review the replication case as my colleagues on the unclassified information because that's what's in the final agency record before you not without reference to the classified information, which the government has said supports their case, but that they didn't rely on it.

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Right.

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So I think with respect to the next argument, that should be limited to the unclassified evidence.

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I don't think that.

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impact whether we are entitled to a correction of the legal error here, which is that the district court did not conduct the analysis that was required under the statute.

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And we are entitled to a determination whether due process requires the disclosure of it could be exculpatory or evidence under this course unit standard that might be helpful or otherwise.

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Um, and so I don't think it shouldn't move it out.

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We would still be able to use that evidence in our defense for it to exist.

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And, you know, as this court said in Nickery, just because

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You may not anticipate that a petitioner could put on such evidence.

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You also can't assume that we can't.

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We're entitled to a review of the classified information and to determine whether due process requires that disclosure.

[00:08:41] Speaker 02:
Well, if we make the determination that in our view, you do not have a viable claim under the due process, due process principle, that is what was done was legally permissible.

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Uh, and I'm not sure where is that leaving you?

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What is your argument?

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Judge Edwards?

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I think that's two separate issues.

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I understand what you're saying.

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Well, okay.

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So it leaves my argument in the following place.

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It may be that the discrimination that the FCC made on with respect to the unclassified evidence in the final agency record leaves you in a position of affirming with respect to the revocation.

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I don't, I don't know.

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I can't speak to that particular issue here.

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We are still entitled to know whether the classified information would have provided us anything we could have said in our defense and whether we could use that information going forward.

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I think that that's a critical distinction.

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You know, trying to tell America's could still seek other license.

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We could still defend our licenses.

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We could still be subject to actions by other agencies like commerce or other parts of the federal government, other federal agencies.

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If this classified record that was obtained through FISA surveillance contains information that would be helpful to our defense, we ought to be able under the FISA statute... Helpful to your defense with respect to what?

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The FCC case or some hypothetical case that's not before us and that we can't contemplate?

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Well, the case that is before you is whether the district court appropriately complied with FISA.

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I understand.

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The second issue is whether the FCC's determination was appropriate on the agency record before.

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In the FISA case, it really isn't contingent on how the information is going to be used.

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Congress directed the district court to make a determination of whether due process requires that disclosure.

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Here, we think you'll be entitled to that determination based on either your review or the district court's review of the classified record.

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The whole predicate of the 1806 action is that the government intends to use the information

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I think that the proceeding here is the FCC revocation.

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That was the government's predicate for filing their petition.

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And indeed was the notice that we received and why we then knew that he had been subject to surveillance.

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But that's not part of the 1860 requirement.

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We were entitled to a determination of whether

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The process required that disclosure and we haven't received it.

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And with respect, we ask, we submit that we should be entitled to it.

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I will hold my last three minutes if that's fine.

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So wait, give me, I want to make sure I understand your bottom line.

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Uh, separating the case and just taking the view of the district court's decision, which is what we're talking about.

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What is the error in your mind that would cause us to reverse?

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Specifically.

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The district court made no determination.

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The district court was required to conduct a two-part analysis.

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We understand that the district court conducted an 1806F analysis and did not believe that it was necessary to disclose the CTA.

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Tell me what analysis you think is missing, because this is de novo review, remember.

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What analysis do you think results a failure to engage in it?

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uh, results in reversal.

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There's no Matthews analysis.

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There's no, there's no Matthews analysis.

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There's no analysis in the district court's opinion with respect to whether due process required disclosure of the lawfully surveilled, uh, the evidence that she found all of which we can do.

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And if we conclude that with respect to those are two questions you've raised, we conclude that, uh, there's no problem there.

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Then you have no viable claim.

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I don't believe that it said we have no viable claim, your honor.

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We have a viable claim.

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You can't prevail.

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We are comfortable that this court has the authority given that it's to an overview to review, uh, the classified evidence in the, in the first instance where it should choose to do so and to perform the 18 oh 60 analysis here.

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We think the better course is to reverse, but I'm sorry.

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I've heard that.

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I know you prefer to get a remand.

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I'm trying to ask you, I want to confirm.

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that we can conclude that all is fine under G having reviewed the record, right?

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Isn't that right?

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If you review the record and determine that there is no disclosure warranted, then I think that's a determination you could make here in the first instance, given the standard of a no review.

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Yes, we frankly, we just want someone to do the analysis.

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We think probably should be the district court, but if you got an opinion from us saying we've done the analysis, they know we've looked at everything that is to look at.

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and there is no viable claim.

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They have a claim, but we're not upholding laws against them.

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If we, that would be the end of it, right?

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We certainly can anticipate possible uses in cases that are not for us.

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So all you're talking about is the due process, the failure of due process, the district court.

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I want just trying to make sure I'm understanding what you're saying.

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Your alleged error is the district court didn't do a clean enough review of the record as required by G, and therefore it should go back to the district court.

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That's what you're saying.

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If we look at it, they know and say, no, it's there.

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Then what?

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They're not entitled to disclosure.

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If this court determines under 1806 G,

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in its own review of the classified information that there is no due process does not require disclosure.

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We would not be entitled to disclosure.

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I agree with that.

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We have also asked this court to review the district court's 18 determinations with respect to

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The vast majority of the opinion that is redacted, we just don't have that in our brief.

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There's really nothing I can say about it.

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That's a secondary request that we have.

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But our primary argument is with respect to what we believe to be the clear area of law on 1806G.

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Okay.

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Thank you.

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All right.

[00:14:59] Speaker 03:
Mr. Ross.

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Thank you, your honor.

[00:15:21] Speaker 00:
May it please the court case in Ross, the United States, the district court properly determined that FISA surveillance at issue here was lawfully conducted and no disclosure of classified information was necessary either to make that legality determination or to satisfy due process.

[00:15:35] Speaker 01:
Before you get into the merits, can I just ask you about your appellate jurisdiction?

[00:15:40] Speaker 01:
Right?

[00:15:40] Speaker 01:
Sure.

[00:15:41] Speaker 01:
Your honor.

[00:15:41] Speaker 01:
So you don't, you don't, I mean, there's an interesting question about

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whether the district court order would have been reviewable when that proceeding was concluded and the FCC proceeding was ongoing.

[00:15:58] Speaker 01:
But the FCC proceeding is done now, so you don't contest that we can reach the merits

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Either we can reach the merits of what the district court did through our review of the FCC order, correct?

[00:16:12] Speaker 00:
That's correct, Judge Cassidy.

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This court can review the legality of the surveillance on its own in the FCC revocation proceeding, but the court lacks jurisdiction in 21-52-15, this particular case.

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The question is largely academic at this juncture.

[00:16:26] Speaker 00:
That would just come up through the PFR of the FCC.

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That's correct.

[00:16:31] Speaker 00:
Okay.

[00:16:31] Speaker 00:
And, uh, the text of the foreign intelligence surveillance act makes that clear that only a certain specific discrete class of orders are final.

[00:16:38] Speaker 02:
Um, and it does not make that clear.

[00:16:41] Speaker 02:
And no court of appeals has endorsed that view, not even the nice circuit that you point to.

[00:16:46] Speaker 02:
That's just not correct.

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You, the end analysis, your argument is no review of the district court's determination is possible because of H

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The statute just doesn't address it.

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What it does is to make it clear the certain kinds of actions adverse to the government are clearly reviewable.

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But the government's in a different position than the claimants.

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And there's no court of appeals that's forced to review, none.

[00:17:12] Speaker 02:
You read Judge Randolph's opinion and boy, he may, he starts assuming that review is possible.

[00:17:17] Speaker 02:
The Ninth Circuit, the Fifth Circuit, everyone assumes, even the Ninth Circuit Hamid,

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assumes that at an appropriate time, of course, review is possible.

[00:17:27] Speaker 00:
Yes, absolutely.

[00:17:29] Speaker 00:
My position was my argument was much more modest rather than it's not reviewable on an introductory appellate.

[00:17:36] Speaker 00:
uh, posture as it is here as trying to telecom appealed here.

[00:17:40] Speaker 00:
Um, as in response to Judge Katz's, the question is largely academic at this point because the same two cases are before the same panel.

[00:17:48] Speaker 02:
Now, what I'm saying is something more your assumption that it's interlocutory is questionable, but it may not matter in this case.

[00:17:56] Speaker 00:
It does not matter in this case.

[00:17:58] Speaker 00:
That's correct.

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And so the court need not reach that question.

[00:18:01] Speaker 00:
The FISA statute itself makes clear, though, that every time the government files an 1806 petition, it is in conjunction with another proceeding.

[00:18:09] Speaker 00:
And so any 1806 petition is necessarily tied to an underlying substantive determination.

[00:18:16] Speaker 00:
Normally, that's in a criminal proceeding, and it would be brought in the same district court.

[00:18:20] Speaker 00:
And the logical

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conclusion of China Telecom's position is that in this case, the court could exercise public jurisdiction in instances in which the proceedings are bifurcated, but not in a criminal proceeding.

[00:18:34] Speaker 00:
So we're the same order entered in a district court proceeding, Your Honor.

[00:18:39] Speaker 00:
The statute is clear that there would not be immediate review on appeal, but only after a final judgment has been entered.

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And it would be anomalous to have a different result here.

[00:18:49] Speaker 00:
But absent additional questions about the court's appellate jurisdiction, as the record plainly demonstrates, the surveillance here was lawfully conducted, and there is no necessity to disclose classified information, either under 1806F or under 1806G.

[00:19:07] Speaker 00:
Due process did not require any particular disclosure of classified information.

[00:19:12] Speaker 00:
And indeed, the government is unaware of any other circumstance in which a district court has ordered disclosure under 1806G, except in Daoud, which the Seventh Circuit subsequently reversed.

[00:19:24] Speaker 00:
If there are no further questions, we urge the court to dismiss case 21-5215 for lack of appellate jurisdiction or an alternative affirm.

[00:19:33] Speaker 01:
All right.

[00:19:33] Speaker 03:
Thank you.

[00:19:34] Speaker 03:
Thank you.

[00:19:37] Speaker 03:
This camera, why don't you take one minute?

[00:19:44] Speaker 03:
Honors, the government is incorrect that this court lacks appellate jurisdiction in the despise appeal.

[00:19:49] Speaker 03:
This court has jurisdiction both under 12 91 as a final order and as a collateral order.

[00:19:54] Speaker 03:
And I think it's particularly important here that we look at the kind of relief that would be available in the distinct.

[00:20:01] Speaker 03:
If this work exercises the appellate jurisdiction that it has to review here,

[00:20:05] Speaker 03:
You have the ability to remain to the district, which is what Congress, as we discussed at length when I was first standing here before Congress directed to make this determination in the first instance when this court because it's come is coming up from an administrative proceeding.

[00:20:21] Speaker 03:
If this court were to review the FISA issue.

[00:20:25] Speaker 03:
In the merits case, you only have the ability to remain to the FTC there, which, which can't speak to the price issue.

[00:20:31] Speaker 03:
So in that instance, you, I think you would have to do the determination by yourself here out of de novo basis because the, there's no one to remain to think that's quite different.

[00:20:41] Speaker 03:
And it's an important point for appellate jurisdiction reasons.

[00:20:44] Speaker 03:
And I think something that this court should clarify when issuing its opinion in this

[00:20:48] Speaker 02:
Suppose the FCC, and then I'm not going to hold up any longer.

[00:20:52] Speaker 02:
Suppose the FCC determination had not yet been made and it wasn't scheduled for argument before this court for say a month or two.

[00:21:01] Speaker 02:
And all you had was the appeal from the district court.

[00:21:07] Speaker 03:
Frankly, we don't think, we think that you have jurisdiction here in this case, similar to- No, just take my hypothetical.

[00:21:14] Speaker 03:
Yes sir, I'm doing so.

[00:21:15] Speaker 03:
We think that in some ways the answer is the same.

[00:21:19] Speaker 03:
because you have jurisdiction in this case, regardless of whether that case is currently up on appeal before this panel or in the court circuit where we could have sought appeal from that case or whether it's still languishing in the administrative agency following the Supreme court's opinion.

[00:21:33] Speaker 02:
We don't, we would not know in my hypothetical whether the SCC was going to use any of the classified material because we don't have the opinion before us.

[00:21:42] Speaker 03:
We'll still be able to make a determination whether, um,

[00:21:46] Speaker 03:
the district court would still have been able to make a determination whether due process required that disclosure.

[00:21:50] Speaker 03:
And I think that really loops back to our prior discussion.

[00:21:53] Speaker 03:
It is always possible in an appeal from the FCC that there would be a split in the courts, because Pride and Telecom could have taken an appeal to this court or to the Fourth Circuit.

[00:22:03] Speaker 03:
And it wouldn't be a tag-along order.

[00:22:05] Speaker 03:
That is another reason why this court should exercise jurisdiction and either make the determination here in the first instance under D or remand.

[00:22:13] Speaker 03:
All right.

[00:22:14] Speaker 03:
This court has no further questions.

[00:22:15] Speaker 03:
Thank you very much.

[00:22:17] Speaker 03:
All right.