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D.C. Circuit Review – Reviewed: Can You Keep a Secret?
JREG Notice and Comment - Saturday, August 29, 2015

Why does the Supreme Court forbid cameras in the courtroom? It isn’t because courtroom sketches are flattering. Instead, the Justices fear that cameras will change the dynamic of the Court. And why do law clerks have a duty of confidentiality? The reason is similar. Whatever you think of these policies, you can at least appreciate why limiting access (cameras) or barring it altogether (confidentiality) might serve useful functions. But then, why do we protect whistleblowers? Because secrecy is not always a virtue. Alas, where to draw the line? This week’s D.C. Circuit decisions grapple with that conundrum.

 

Consider, for instance, Cause of Action v. FTC. There, Chief Judge Garland, joined by Judges Brown and Sentelle, issued an important Freedom of Information Act decision. FOIA, of course, “ is often described as the law that keeps citizens in the know about their government.” But FOIA can also be a pain for agencies. (Indeed, Justice Scalia, back when he was Professor Scalia, denounced FOIA as “the Taj Mahal of the Doctrine of Unanticipated Consequences, the Sistine Chapel of Cost Benefit Analysis Ignored.”) So when Cause of Action—“a nonprofit organization that ‘advocates for economic freedom and opportunity by educating the public about the threat posed by improvident federal regulations, spending, and cronyism’”—sought, for free, internal information about the FTC’s practices regarding “social media authors,” officials were not eager to comply. (The story is more complicated; if you’re interested in nuance, read the opinion.*) Fast forward to the D.C. Circuit, which sided with disclosure: “the Commission [says it] had already given Action the requested documents free of charge. But in fact, the FTC had not—and still has not—produced all of those documents without charge. Indeed, as far as the record before us reflects, it has not produced all of those documents at all”; “The government now grants that the agency ‘may have made a mistake.’ It did”; “The FTC regulation … does require a requester to show that the information it seeks would increase the understanding of the public ‘at large.’ But FOIA itself does not.” Agencies, start preparing for more FOIA requests.

 

Next is Obama v. Klayman, which concerns “bulk data collection.” This program is the subject of a lot of litigation. Here, the district court issued a preliminary injunction “barring the government from collecting plaintiffs’ call records.” The D.C. Circuit reversed, but with splintered opinions. Judge Brown found that the plaintiffs had standing to challenge the program, even though the record “leaves some doubt about whether plaintiffs’ own metadata was ever collected,” but also that “[h]aving barely fulfilled the requirements for standing at this threshold stage, Plaintiffs fall short of meeting the higher burden of proof required for a preliminary injunction.” Judge Williams, by contrast, (seemed to) reject standing, but accepted a remand. And Judge Sentelle agreed with Judge Williams’s analysis, but from it concluded that no remand is required: “I also agree with Judge Williams that plaintiffs have not established the jurisdiction of the court. That being the case, I would not remand the case for further proceedings, but would direct its dismissal.” Standing experts, I hope, will have more to say about this case. For me, what is especially interesting is the discussion of secrecy. For instance, Judge Brown wrote: “secrecy is yet another form of regulation, prescribing not “what the citizen may do” but instead ‘what the citizen may know.’ DANIEL P. MOYNIHAN, SECRECY: THE AMERICAN EXPERIENCE 59 (1999). Regulations of this sort may frustrate the inquisitive citizen but that does not make them illegal or illegitimate. Excessive secrecy limits needed criticism and debate. Effective secrecy ensures the perpetuation of our institutions.” Judge Williams, in turn, addressing the government’s “strategic silence,” wrote that “[p]laintiffs complain that the government should not be allowed to avoid liability simply by keeping the material classified. But the government’s silence regarding the scope of bulk collection is a feature of the program, not a bug.”

 

Sometimes, of course, it is the D.C. Circuit that keeps secrets—like whether a regulation violates the First Amendment. Consider New York Republican State Committee v. SEC. This case concerns jurisdiction, namely, whether a district court has jurisdiction to consider a challenge to “a four-year-old rule, promulgated under the Investment Advisers Act of 1940, regulating campaign contributions by investment advisers.” The statute allows the SEC to promulgate “rules and regulations . . . reasonably designed to prevent such acts, practices, and courses of business as are fraudulent, deceptive, or manipulative.” And parties must seek review in a court of appeals “within sixty days after the entry of such order.” Here, the SEC issued “a rule limiting investment advisers’ campaign contributions to certain government officials. Such contributions are not banned, but they now come at a cost. If an investment adviser or certain of its employees contributes to the political campaign of a government official with the power to influence the adviser’s hiring by a government client, the adviser must wait two years before it may provide services for compensation to that government client.” So does this rule violate the First Amendment? We don’t know because the D.C. Circuit—in an opinion by Judge Pillard, joined by Judges Tatel and Edwards—held that it lacks jurisdiction to consider the question. The panel explained that the review provision, though applying to “orders,” also encompasses “rules,” meaning the challenge should have been filed within 60 days (it is strange to read the statute that way, but, as support, the panel cited a lot of precedent and a co-blogger’s article). The panel also held that limiting review to such a short period is constitutional, noting the agency’s “ interests in finality and certainty.” So will this rule’s constitutionality ever be judged? The panel suggested that the challengers could petition the agency to repeal the rule. We’ll see what happens.

 

(Another panel, I note, also held its tongue in Dukore v. DC, a qualified immunity case involving the “Occupy Movement.” Exercising its discretion under Pearson v. Callahan, the panel dismissed a retaliatory arrest claim as not being clearly established. You might think that Pearson has nothing to do with administrative law; you would be wrong, for reasons Chris Walker and I will soon share.)

 

Finally, a case about the Supreme Court—rather, the Supreme Court’s plaza. In Hodge v. Talkin, Judge Srinivasan, joined by Judges Henderson and Williams, concluded that the plaza in front the Supreme Court is not a public forum. (This is a big win, by the way, for Marshal Talkin, well known for her “Oyez! Oyez! Oyez!”) This case too is about secrets. After all, Mr. Hodge would like to share his views with the world (or at least the world that happens to be standing on the Supreme Court’s plaza, as opposed to the Supreme Court’s sidewalk), but now he must keep them to himself. The panel was clear, however, that the speech restrictions are not intended to prevent messages from getting to the Supreme Court: “this case would be decidedly different if the line—wherever exactly it lay—were geared to shield the Supreme Court from having to face criticism just outside its own front door.” Will there be a cert petition? Well, if there is, at least we’ll be able to follow it out on the Supreme Court’s public docket, perhaps with a copy of the petition. There may be a place for secrecy, but legal briefs should almost always be public.

 

So that’s the D.C. Circuit for this week. As to what next week will bring, we’ll have to wait and see. It’s still secret.

 

 

* If you are interested in what has been called the “crazy” intersection of standing and mootness, check out footnote 1 of Chief Judge Garland’s opinion. And if you want more proof that the D.C. Circuit reads widely, look at footnote 14’s discussion of the “Mad King” Ludwig II.

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Jurisdiction(al) Matters: New York Republican State Committee v. SEC, by Peter Conti-Brown
JREG Notice and Comment - Wednesday, August 26, 2015

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FDA Considers Overhauling Its Regulation of Homeopathic Products for the First Time in 25 Years, By Elisabeth Ulmer
JREG Notice and Comment - Tuesday, August 25, 2015

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