Notice & Comment

D.C. Circuit Review – Reviewed: Sausage Making

Then-Judge Scalia penned one of the D.C. Circuit’s great sentences: “This case, involving legal requirements for the content and labeling of meat products such as frankfurters, affords a rare opportunity to explore simultaneously both parts of Bismarck’s aphorism that ‘No man should see how laws or sausages are made.'” That sentence came to mind today as I was reading about internal court emails that somehow ended up in the Washington Post. I’ll leave a discussion about those emails to others.* Instead, I want to focus on transparency more generally.

I’m a fan of transparency. A transparent process is important; it can result in better outcomes and greater legitimacy. But there are trade-offs. Transparency, for instance, can be quite expensive, and too much of it can result in self-censoring that harms the deliberative process. Accordingly, the question is how to strike the optimal balance. Financial disclosure makes a lot of sense and the relevant information should be easy to find. Especially today, in the internet age, briefs, opinions, and orders should also be publicly available and easy to find. As Judge Williams has recently reminded us, moreover, “John Doe” claims also should not always be allowed. I’m more uncomfortable, however, about disclosing materials relating to how cases are decided or other internal court discussions.

Consider Twin Rivers Paper Company LLC v. SEC. The case concerns the SEC’s rule “allowing investment companies to post shareholder reports online and mail paper copies to shareholders upon request.” The Court upheld the rule. Why? Standing. Judge Katsas — joined by Judges Henderson and Rogers — explained the decision this way:

The Court’s opinion speaks for itself. To be sure, there is more that we could learn about this case. At the margins, it may be helpful to know, for instance, what the bench memo said! But I strongly suspect we wouldn’t learn much more, and the cost would be significant.

The same is true for redactions. I appreciate the D.C. Circuit’s effort to release public versions of its decisions, even when it comes to sensitive subjects. When the Court decides a “sealed” case, it lets the public know, and then later it offers a public version of the decision. But the Court also recognizes the importance of some confidentiality. Consider In re Rail Freight Fuel Surcharge Antitrust Litigation. There is another opinion by Judge Katsas, this time joined by Chief Judge Garland and Judge Rogers. This is how Katsas opens the opinion:

We can follow the Court’s logic. Even so, the Court’s opinion also holds back information:

This shows a commendable desire to both reveal and conceal, as appropriate.

That said, sometimes courts cut their analysis short. In Children’s Hospital Association v. Azar, for instance, Judge Henderson (joined by Judges Rogers and Sentelle) began her analysis this way:

But the opinion also include this footnote:

This sort of footnote can be problematic. Here, however, Judge Henderson’s opinion is anything but cursory. I’m much more concerned when decisions contain no analysis at all.

Sometimes, moreover, it makes little sense to delve into all the details. An example is Almaqrami v. Pompeo — or should I say, Almaqrami v. Pompeo and “John Does, #1-50”? Who are these John Does? Judge Griffith’s opinion, joined by Judges Tatel and Williams, does not address that question. The opinion’s caption just says they are “consular officials responsible for issuing diversity visas.” Perhaps no one knows. The Court concluded that even though the statutory deadline to issue certain visas has passed, the case is not moot because it is possible that the district court could still award plaintiffs relief. Maybe someone should try to identify each of the John Does. But that may not be necessary, especially as they are being sued in their official capacities. If relevant, no doubt it will come up on remand.

Finally, we have Capitol Services Management v. Vesta Corporation. Judge Millett, joined by Judges Tatel and Katsas, explored “the proper application of the discovery rule to tortious interference claims under District of Columbia law.” The Court held that “at the motion-to-dismiss stage, dismissal on statute-of-limitations grounds is permissible only if a plaintiff’s claims are conclusively time-barred on the face of the complaint.” Here is the heart of the analysis:

So why didn’t the panel decide the merits itself? Per Judge Millett, “[b]ecause the district court did not address those questions and the parties have dedicated scant appellate briefing to the issues, it would be unwise for us to wade in at this time and on this record.” Sometimes it is best to say enough but no more.

None of these thoughts are especially novel. But it is interesting to watch the Court work to strike the appropriate balance. We need to see how sausage is made — but maybe not the whole process.

* Today’s D.C. Circuit story in the Washington Post is surprising. You don’t see stories about judge-to-judge emails very often. Thank goodness. Not everything needs to be in the public eye.

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