Notice & Comment

D.C. Circuit Review – Reviewed: [Under Seal]

For two days this week, there was a mystery in the D.C. Circuit: Why did the Court rule against “James Mattis, in his official capacity as Secretary of Defense” in Doe v. Mattis? As you probably already know, the case is about the government’s authority to transfer a U.S. citizen — also a citizen of Saudi Arabia — held in Iraq to another country. “John Doe” was captured in Syria and determined by the Department of Defense to be an enemy combatant. On Monday, May 7, the Court issued a judgment in that case. And from that judgment, we knew that Judge Srinivasan (joined by Judge Wilkins) authored the majority opinion and that Judge Henderson authored a dissent. But the opinion itself was not available. Instead, the Court posted this document to its website:

Under Seal

Two days later, however, the Court posted the opinion — albeit with redactions:

Doe Redacted pg 36
Doe Redacted pg 37
Doe Redacted pg 44

Judge Henderson’s lengthy dissent also contained a fair number of redactions, often in the footnotes. This is how her dissent closes:

Doe Henderson Dissent

Others have more to say about the merits of the Court’s decision.* Here, however, I want to focus on the Court’s decision to seal it. Sealing doesn’t happen all that often. My dutiful research assistant spent some time working through D.C. Circuit dockets (a thankless chore) and found some examples. This is not a comprehensive list, but it is a good place to start:

Sealed Chart

This is an interesting assortment of cases. In Smith v. Lanier, for instance, it does not appear there are any redactions. Nor are there redactions in Ex rel Schweizer or UAL Corp. The 2013 In re Sealed case, by contrast, contains many redactions. Some of the opinions are obviously Guantanamo Bay opinions — it is not surprising they were filed under seal. In re Grand Jury Subpoenas is noteworthy; it involves an investigation of a member of Congress. The 2007 In re Sealed case involves the “state secrets privilege.” And In re Lindsey was unsealed “[u]on consideration of the motion of President William Jefferson Clinton and the Office of the President, to unseal the sealed portions of this Court’s opinion.”

I don’t have any deep thoughts on the subject of sealed opinions. But it is safe to say that they are pretty rare and not all of them involve national security. It is also noteworthy that eventually a good number are released in an unredacted form.


The D.C. Circuit decided three additional cases this week.

My favorite — because it is short 😉 — is Santa Fe Discount Cruise Park v. FMC. As regular readers know, when there is a short D.C. Circuit opinion, Judge Kavanaugh almost invariably is the author. That is true here. And that is a good thing because when Judge Kavanaugh writes a short opinion, he doesn’t sacrifice quality. Don’t believe me? I can prove it!

Kavanaugh Score

In Santa Fe Discount Cruise Park, Judge Kavanaugh (joined by Judges Millett and Sentelle) ruled against the Federal Maritime Commission. Why? A port may not “give any undue or unreasonable preference or advantage or impose any undue or unreasonable prejudice or disadvantage with respect to any person.” But the Galveston Port charges a higher fee for shuttle buses than for taxis and limos. That may be a problem: “The Federal Maritime Commission accepted that Petitioners’ shuttle buses were treated differently than taxis and limos. But the Commission then strangely concluded that Petitioners were not injured by being charged more. The Commission’s conclusion is not sustainable. Petitioners were plainly injured when they were charged more than the other commercial passenger vehicles.”

The D.C. Circuit also decided two cases involving unions — ruling against the respective union in both.

In Local 58, International Brotherhood of Electrical Workers, AFL-CIO v. NLRB, Judge Rogers (joined by Chief Judge Garland and Judge Kavanaugh) denied Local 58’s petition to review the NLRB’s determination that a union cannot force members who wish to resign “to appear in person at [the] Union Hall with a picture identification and a written request indicating the member’s intent.” The Court concluded that the Board “reasonably interpret[ed] the NLRA to prohibit categorically union policies that delay or otherwise impede a member’s right to resign or revoke” and that “the combined … requirements were tantamount to a restriction on resignation ….” The fact that the union offered an exception to members who believed that going to the Union Hall was an “undue hardship” did not save the policy. Nor did the Union’s argument that this policy is necessary to prevent fraud.

Finally, we have Air Line Pilots Association v. Chao. Here is Judge Tatel’s summary of the opinion:

Air Line Pilots v. Chao

Judge Tatel’s opinion is quite textualist. Here is a sample:

  • “Questions of textual interpretation sometimes require courts to struggle with ambiguous language, conflicting context, equivocal history, and elusive purpose. Not so here. … Our analysis begins — and ends — with the Agreement’s text.”
  • “The Unions next argue that section 41302 allows the Secretary to grant Norwegian’s permit only if it is in the public interest. But here, too, the Unions’ argument falters in the face of unambiguous text.”
  • “Attempting to convince us that ‘or’ really means ‘and,’ the Unions point to the statute’s history. In doing so, however, the Unions run afoul of a fundamental principle of statutory interpretation: where the text is unambiguous, as it is here, courts may not look to history.”
  • “Undaunted, the Unions next claim that the Secretary has always engaged in a public-interest analysis as part of the permit-granting process. This argument runs into another fundamental principle of statutory interpretation: that agency practice cannot alter unambiguous statutory text.”

Judge Rogers concurred to suggest a potential argument that could be raised in the future: “Under the circumstances, the Unions’ immediate objection to non-inclusion of their conditions as terms in Norwegian Air’s permit fails. But there remains another avenue by which the Unions can potentially obtain additional protections for labor interests and rights during the operational phase of the permit — by requesting action by the Joint Committee, see 2010 Protocol art. 4, para. 2.”

Air Line Pilots v. Chao - Sentelle

I’ll conclude with Judge Sentelle’s short concurrence:

“Airlines compete with airlines.” That’s a good phrase — good thing it was not filed under seal.

* For instance, Robert Chesney observes:

Might anything happen to derail things? There are two possibilities.

First, it appears the government is free to relinquish Doe, allowing him to walk out the door of wherever he is held in Iraq. Iraq might then arrest him, and might then transfer him to Saudi Arabia. This would be quite provocative, for surely ACLU would argue that such a sequence of events was pre-arranged to defeat the court’s ruling. I’m skeptical the government will try this route, but you never know.

Second, as I’ll write about more extensively, we could yet see an effort to prosecute Doe. Stay tuned.

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