Want to challenge the TikTok ban? See you at the D.C. Circuit.

I know that this blog is normally West Coast-oriented, but today I want to focus on something more nationwide:  The TikTok ban.  But we’re not going to be discussing the merits of the ban; we’re going to be talking about something way more interesting.  Specifically, we’re going to talk about the fact that the recent lawsuit challenging the ban was filed directly at the D.C. Circuit.

Because I want to make this blog relatively accessible to anyone who’s interested in the law, I’m going to quickly review some key civil procedure and federal courts doctrine.  Almost every federal lawsuit begins at the trial level, i.e., the district courts.[1]  This is where the case unfolds from the complaint to the trial.  When one of the parties appeals (either from an appealable order or from the final judgment), the case goes to one of the federal circuit courts.  There are thirteen primary circuit courts (numbered one through eleven, as well as the Federal Circuit and the D.C. Circuit).  Normally, cases appealed to the circuit courts are heard by a panel of three judges who address specific issues on appeal from the district court case.  These judges review decisions by the district courts and do not engage in factfinding (and review factual decisions by the trial courts with a lot of deference).  Both the district courts and the circuit courts are created by Congress (unlike the Supreme Court, which is created by the Constitution).  And because Congress creates these lower courts, it has the power to control their jurisdiction.  See Sheldon v. Sill, 49 U.S. 441, 449 (1850). 

This is where the TikTok ban comes into play.  Many people likely heard that TikTok has filed suit over the constitutionality of the ban, but what they may not have noticed is that the suit was filed in the D.C. Circuit—i.e., one of the courts of appeals, rather than a district court.  This is because Section 3 of the statute banning TikTok (formally known as the Protecting Americans from Foreign Adversity Controlled Applications Act) states that a petition challenging the statute “may be filed only in the United States Court of Appeals for the District of Columbia Circuit” and provides that the D.C. Circuit will have exclusive jurisdiction over any such challenges.  In other words, rather than proceeding before a district court (as statutory challenges normally do), this case went right to the D.C. Circuit to be heard by a panel of appellate judges.  As we just discussed, it is well-established that Congress has the power to require this.

But why did Congress require this?  From the legislative history I reviewed, it’s not clear.  There’s been a lot of talk recently about forum shopping and nationwide injunctions, so this may have factored into Congress’s analysis.  In other words, Congress may have been worried that TikTok would challenge the law in a court favorable to the challengers, and may have believed that the D.C. Circuit would be a more favorable jurisdiction for upholding the law.  Or, instead, Congress may have believed that the D.C. Circuit is more equipped to handle cases involving national security.  As Cass Sunstein noted back in 2005, in the aftermath of 9/11, the D.C. Circuit “decided most of the key cases involving a conflict between national security and individual liberty.”  So, because the D.C. Circuit has a track record of handling cases that implicate national security, Congress may have been motivated more by institutional experience than litigation strategy.

Either reason might explain why Congress would want a challenge to the TikTok ban brought in D.C.  But that still doesn’t explain why Congress wanted the TikTok ban brought to the D.C. Circuit, rather than the District of D.C.  After all, it is very rare for a Court of Appeals to hear a suit in the first instance before there’s been any factual development at the district court or agency level.  The D.C. Circuit does, on occasion, have exclusive jurisdiction over constitutional questions—like challenges to the Federal Elections Campaign Act (FECA).  Wagner v. Fed. Election Comm’n, 717 F.3d 1007, 1016 (D.C. Cir. 2013).  But even under FECA, suits are first filed with the district court, where the district court can then make factual findings, determine whether the constitutional challenges are frivolous, and then certify the question to the D.C. Circuit.  Id. at 1009 (citing 52 U.S.C. § 30110).  This means that a FECA challenge does not begin as a blank slate at the D.C. Circuit.  So, without any analogue that I could find, we’re left without any clear reason why Congress would structure the TikTok ban in this way.

If I were to speculate, I would guess that Congress wanted an expedited process so that the case doesn’t get stuck in litigation for years before resolution.  The TikTok ban is set to take effect 270 days after the law was signed, and Congress was likely worried that protracted litigation before the district court would eviscerate that deadline.  If this is the case, then maybe Congress would even have granted the Supreme Court original jurisdiction if it could have done so (but, as the Supreme Court famously held in Marbury v. Madison, Congress may not alter the original jurisdiction of the Supreme Court).  

It's not clear just how much this maneuver will speed up the litigation process.  If factual development is necessary, then the D.C. Circuit panel may appoint a special master to handle that process, which will add some time to the case.  But this may still shave off a lot of time, because I can’t imagine it would involve the same lengthy motions / discovery / trial process that would take place at the district court level.  Will it be fast enough to meet the 270 day deadline, though?  I have no idea, especially because, no matter the outcome, an appeal to the Supreme Court is basically guaranteed (and I assume they would grant certiorari, but it’s impossible to know for sure).  We’ll have to wait to see how exactly this process plays out. 

Going forward, I’m even more interested in seeing if Congress uses these exclusive / original jurisdiction provisions more often.  Maybe this statute is sui generis due to the national security issues / time constraints, but it’s possible that Congress is getting more strategic in protecting its statutes from judicial review.  If that’s the case, then the jurisdictional provision of the TikTok ban may prove to be one of the most significant parts of the statute, no matter how this particular case turns out.  

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[1] I say “almost every” because some cases begin directly at the Supreme Court when the Supreme Court has “original jurisdiction.”  And some cases begin at the agency level.  But we’re focusing on the run-of-the-mill federal civil litigation.