No judge shopping for TikTok

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U.S. flag and TikTok logos are seen in this illustration taken, April 24, 2024. REUTERS/Dado Ruvic/Illustration/File Photo Purchase Licensing Rights

May 8 (Reuters) – For TikTok and its parent company ByteDance, the decision about where to file a petition contesting the constitutionality of a U.S. law requiring the Chinese company to divest the online microvideo platform was easy.

The law itself says that only the federal appeals court in Washington, D.C., can hear a challenge to the statute, formally known as the Protecting Americans From Foreign Adversary Controlled Applications Act. TikTok and ByteDance, in other words, had no choice but to file their lawsuit, opens new tab in the District of Columbia U.S. Circuit Court of Appeals.

That’s an unusual but not unprecedented requirement, according to law professor Thomas Bennett of the University of Missouri.

Congress has dictated where challengers must file lawsuits in at least two other statutes with national security implications, Bennett said. In the wartime Emergency Price Control Act of 1942, lawmakers vested a new federal appellate court with exclusive authority to decide the validity of government-imposed price restrictions, Bennett said. And in the Detainee Treatment Act of 2005, Congress required prisoners held at Guantanamo Bay to file lawsuits challenging military tribunal decisions in the District of Columbia federal appeals court.

But the venue mandate in the TikTok divestiture law, Bennett said, raises some unique questions about how the D.C. appeals court will handle the case — and whether the U.S. Supreme Court will ultimately have the authority to review the appellate court’s ruling.

A TikTok spokesperson declined to comment on the implications of the law’s venue requirement. The U.S. Justice Department, which will defend the constitutionality of the divestiture statute, did not respond to my query.

One big issue for both sides will be the factual record underlying the court’s eventual decision.

Ordinarily, appellate courts don’t engage in fact-finding, relying instead on trial judges to develop a record. When TikTok and TikTok users previously challenged President Donald Trump’s executive orders foreshadowing a ban of the platform, for instance, the suits were filed in federal district court in Washington, D.C., and Philadelphia, where trial judges entertained briefing from both sides before issuing injunctions blocking the orders.

There are special procedures for cases in which challengers first sue in federal appellate courts to block rules issued by federal agencies, but in those cases, appellate judges look at the record developed in the rulemaking process.

Based on Tuesday’s filing, TikTok intends to assert a variety of factual arguments to contest the new ban, including its efforts to safeguard U.S. users’ data and to shield the U.S. platform from foreign government influence. The company also seems poised to argue that it “engaged in an intensive, fact-based process” with U.S. government officials before they abruptly cut off talks in 2022.

How the D.C. appeals court will test those factual assertions is not clear, as TikTok seemed to acknowledge in a footnote in Tuesday’s filing. The company conceded that the usual rules of appellate procedure don’t apply in this case and said that it intends to file a separate motion suggesting a process for appellate review.

Law professor Bennett said it’s possible that TikTok and the Justice Department will jointly propose procedural guidelines for the case. But a boilerplate scheduling order, opens new tab issued late on Tuesday by the D.C. Circuit, Bennett said, shows just how unusual the TikTok case is: The order refers to a joint appendix, which typically contains the trial court record, and calls on TikTok to file the underlying decision it is appealing. Here, there is no lower court record or underlying decision.

Congress did not specify in the TikTok divestiture law whether the Supreme Court is empowered to review the appellate court’s decision. That’s a departure from lawmakers’ language in the 1942 price control act, which expressly gave the Supreme Court authority over rulings by the emergency appeals court. The TikTok statute’s venue provision instead mirrors the text of the Detainee Treatment Act – which does not mention the Supreme Court.

That omission led to an odd development in a case brought by detainee Salim Hamdan, who sued President George W. Bush’s administration to block his trial by a military tribunal. Hamdan filed his case before the Detainee Treatment Act was enacted. After Hamdan lost at the D.C. Circuit, the Supreme Court agreed to hear his case. The Justice Department then sought to dismiss the Supreme Court case, arguing, among other things, that the newly passed Detainee Treatment Act retroactively stripped the justices of authority over Hamdan’s challenge.

A splintered Supreme Court ended up ruling, opens new tab that it was empowered to hear the case for several technical reasons, including the particular nature of Hamdan’s challenge to the military tribunal regime. (Justices Scalia, Alito and Thomas dissented, asserting that the Supreme Court did not have authority to decide the case after the enactment of the Detainee Treatment Act.)

More broadly, in a footnote to the majority opinion, the justices wrote that even though the new law said the D.C. Circuit was the “exclusive” venue for detainee cases, that provision “would not bar this court’s review on appeal.”

The footnote may not be binding precedent, Bennett said, but it will nevertheless weigh against any argument by TikTok or the Justice Department that the Supreme Court can’t review a D.C. Circuit ruling in the divestiture case.

TikTok said in Tuesday’s filing that the divestiture law is an unprecedented attack on a single platform’s 1st Amendment rights. The law’s venue mandate isn’t quite as rare as that, but it’s likely to lead to unprecedented complications at the appeals court.