This post is the concluding portion of Part III on my series on Food Marketing Institute v. Argus Leader Media.  In this post I argued that even if the Supreme Court remains unconvinced by a formal reenactment or acquiescence argument, like that outlined in Part III-A, the Court should hesitate before upending uniform court of appeals precedent that has been extant for more than 40 years.

IV. Established Lower Court Precedent vs. Fidelity to the Statute

Eighty-six years ago, in extolling the virtue of stare decisis, Justice Brandeis observed that “in most matters it is more important that the applicable rule of law be settled than that it be settled right.”  Burnet v. Coronado Oil & Gas, 285 U.S. 393, 406 (1932)(Brandeis, J., dissenting).  He was, of course, referring to a court (particularly the U.S. Supreme Court) deferring to its own precedents, i.e., horizontal stare decisis, rather than a court of last resort deferring to intermediate court precedent.  But the virtues of precedent suggest that courts of last resort should be inclined to uphold long-standing intermediate appellate court precedent in many circumstances.

The quandary presented by stare decisis that Justice Brandeis captured so incisively, namely the choice between stability and correctness, can become particularly acute when a court discards one interpretive methodology for another.   In such circumstances, precedents decided using the old methodology become questionable under the new reigning orthodoxy.  For example, when interpretive methodology changes from a pragmatic approach to a textualist one, should judges review and overturn precedents based on the earlier, now disfavored approach?

This question has drawn attention in the constitutional context — with regard to the Supreme Court’s attitude toward its own precedent.  Scholars and judges have debated how to address the tension between an “originalist” constitutional methodology and non-originalist precedents.  See, e.g., Amy Coney Barrett, Originalism and Stare Decisis, 92 NOTRE DAME L. REV. 1921, 1921-22, 1925-29 (2017); Randy J. Kozel, Original Meaning And The Precedent Fallback, 68 VAND. L. REV. 105, 122-33 (2015) (“The Precedent Fallback”).

But just as the Supreme Court’s approach to constitutional interpretation changed during the last three decades of the 1900’s, so too did its approach to statutory interpretation.  Indeed, the transition in statutory interpretation, from a Hart & Sacks “purposive” approach to a more “textualist” one, has been more complete.  See, David K. Ismay & M. Anthony Brown, The Not So New Textualism: A Critique of John Manning’s Second Generation Textualism, 31 J.L. & POL. 187, 209 (2015)(“textualism emerged over and against purposivism — the set of interpretive practices most closely associated with Hart and Sacks”).  The D.C. Circuit crafted the National Parks doctrine approach while the purposive approach predominated; but, if the Court grants certiorari in Food Marketing Institute v. Argus Leader Media, it will be considering the doctrine in a very different methodological era, in which textualism reigns supreme.

Of course, since 1974, the Court has refused to grant a writ of certiorari to consider National Parks on the merits.  Such a pattern of certiorari denials might suggest that more than a bare majority of the Court has considered the D.C. Circuit’s interpretation of Exemption 4, as reflected in National Parks and Critical Mass, not to raise “an important question of federal law that has not been, but should be, settled by th[e] Court.”  See, S. Ct. R. 10(c) (identifying three considerations relevant to the decision to grant certiorari).  Or the failure to grant certiorari over an extended period might mean that two-thirds of Justices have consistently considered that the National Parks doctrine sound.  But such conclusions cannot confidently be drawn from a patterns of denying certiorari petitions raising a particular issue.  See generally, Margaret Meriwether Cordray & Richard Cordray, The Philosophy of Certiorari: Jurisprudential Considerations in Supreme Court Case Selection, 82 WASH. U. L.Q. 389 (2004).

The Court often wishes an issue to percolate for some period of time, Todd J. Tiberi, Supreme Court Denials of Certiorari In Conflicts Cases: Percolation Or Procrastination?, 54 U. PITT. L. REV. 861, 861 & n.3 (1993); but see, William H. Rehnquist, The Changing Role of the Supreme Court, 14 FLA. ST. U. L. REV. 1, 11 (1986).  Moreover, the Court places a higher priority on resolving Circuit conflicts.  See, S. Ct. R. 10(a).  Thus, the Court should not consider itself estopped from overturning court of appeals precedent simply because it did not promptly grant certiorari to review it.  But given the Court’s position as the sole authoritative interpreter in the federal judicial system and the natural build-up of expectations based on uniform and un‑reviewed Circuit court precedent, the Court should feel some responsibility to grant certiorari to review important Circuit precedent (at least if it is unwilling to generally defer to uniform Circuit precedent).  So while one could argue that by deferring to lower court precedent on legal questions the Court abdicates its responsibility, the Court’s failure to grant certiorari over an extended period of time might be viewed as the Court’s true abdication of responsibility.

Randy Kozel has laid out the advantages of having a settled rule.  Randy J. Kozel, Settled Versus Right: Constitutional Method and the Path of Precedent, 91 TEX. L. REV. 1843, 1855-59 (2013)(“Settled Versus Right”).  Some of the advantages apply to established lower court precedent, others do not.

The most important interests in having settled law, reliance and predictability, are important whether lower court or Supreme Court precedent is involved.  Of course, citizens have less of a basis to rely on uniform precedents of intermediate appellate precedents rather than those of the Supreme Court, but the argument wanes with respect to long-standing intermediate appellate court precedent.  I will discuss predictability and reliance in the Exemption 4 context shortly.

Another advantage of settled law, conservation of judicial energy, may well provide less of a reason for deferring to long-standing Circuit precedent.  Largely unquestioned reliance on precedent allows judges to avoid the burden of constantly revisiting previously-decided legal questions, thus conserving judicial resources.  See, Commissioner v. Fink, 483 U.S. 89, 105 (1987)(Stevens, J., dissenting); BENJAMIN CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 149 (1921).  It is one thing for a Court to avoid revisiting questions to which it has already given plenary consideration.  It is quite another for a court to defer to a lower court’s interpretation it might find erroneous upon plenary consideration, merely to save itself the trouble of giving the question full consideration.

However, the Supreme Court’s uniquely limited capacity to hear cases also merits consideration, and may make a different sort of plea to judicial economy appealing.  In particular, by deferring to uniform Circuit precedent, the Court may avoid burdening itself with the obligation to resolve every one of the innumerable ambiguities in the United States Code.  If long-standing, uniform Circuit law that the Supreme Court has allowed to stand is as reliable as a Supreme Court precedent (which itself can be overturned), statutory law can attain some level of stability without the existence of a Supreme Court opinion on point.

Indeed, it is important for there to be authoritative law, rather than pervasive uncertainty, which in our system generally means an opinion from the jurisdiction’s court of last resort.  Given the inherently tentative nature of intermediate court precedent, if a court of last resort does not opine on the issue for an extended period, there will be no “law,” only “guesses,” albeit some more influential than others, regarding what “the law” is.  A custom of upholding reasonable long-standing Circuit law combats this problem.

Stability with regard to citizens’ rights and the government’s responsibilities under FOIA is advantageous.  FOIA is a heavily used statute that generates many disputes between requesters and the government, or in the case of Exemption 4, between requests, the government, and private parties that submit financial and commercial information to the government (“submitters”).  Sophisticated requesters may not have to litigate a denial of records if they can confidently determine the substantive standard applicable to their dispute with the government over access to documents.   Stable interpretations of FOIA allow agencies to determine which documents it has an obligation to disclose in response to a request.  And as a result, requesters are more likely to be treated consistently, whether or not they have the resources to mount a challenged to the settled law in the Supreme Court.  (Of course, much FOIA litigation appears to result from agency intransigence, rather than uncertainty regarding the applicable legal standard.  And some unsophisticated FOIA plaintiffs may pursue litigation despite the clarity of the law.)

Potential submitters of information can decide whether they will participate in a government program given the likelihood the commercial and financial information they submit will be subject to disclosure.  Business entities, by and large, seem to have adapted themselves to the National Parks test, by securing, and then using, procedural mechanisms adopted by the Supreme Court and the President in the wake of National Parks to protect their commercial and financial data.  Chrylser Corp. v. Brown, 441 U.S. 281, 293-94 (1979)(allowing “reverse FOIA” suits); Executive Order 12600, Predisclosure Notification Procedures for Confidential Commercial Information, 52 FED. REG. 23781 (1987)(mandating agency creation of consultative procedures regarding release of submitters’ financial and commercial information pursuant to FOIA).

Granted, no one can claim detrimental reliance if the Supreme Court overturns the National Parks doctrine.  Requesters may lose access certain types of agency records, but they would have taken no action based on the assumption that they would enjoy continued access to such records.  The Government, too, could show no detrimental reliance.  Indeed, it could release records that reveal a business entity’s financial or commercial information so long as a court would not find the decision to do so “arbitrary and capricious” under any new Exemption 4 test the Supreme Court devises.  On the other hand, retaining the National Parks test would not frustrate any reasonable expectation business entities possessed when they submitted their financial and commercial information to the government.

Prof. Kozel suggests that if the right answer to a constitutional questions is unclear based on contemporary methodology, stare decisis can provide a “fallback” decision-making metric.  The Precedent Fallback, supra, 68 VAND. L. REV. at 120, 143-45.  He made the argument with respect to horizontal precedent, but his argument can be applied to long-established, uniform intermediate appellate precedent interpreting federal statutes.  With respect to FOIA Exemption 4, there are reasons to question a strict application of the dictionary definition of the word “confidential.”  I have outlined the reasons for such skepticism in earlier posts in this series, including the literal definition’s tendency to undermine the government’s commitment to fiscal transparency (which has constitutional stature).

Unless the Supreme Court embraces an absolutist approach to Exemption 4 (i.e., that all financial and commercial information an entity treats as confidential can be withheld or that any financial and commercial information must be released if it reveals what the government “is up to”), courts will have to craft a doctrine that makes subtle distinctions between material than can be withheld and material that cannot.  And there is no assurance, at the end of the day, that any such test will reflect significantly greater fidelity to the “plain meaning” of Exemption 4’s text than the National Parks test.  Even if the Court were to construct such a test, a long period of uncertainly would inevitably exist while the courts refined the doctrine’s contours on a case-by-case basis.  See Board of Education v. Rowley, 458 U.S. 176, 190 n.11 (1982) (rejecting a broad interpretation that would create an unworkable standard and place upon states liability to be decided on a case-by-case basis); Maloney v. Rath, 69 Cal. 2d 442, 446, 71 Cal. Rptr. 897, 899 (Cal. 1968)(“[t]o invoke a rule of strict liability . . ., without also establishing in substantial detail how the new rule should operate would only contribute confusion . . . until the new rules were worked out on a case-by-case basis.”); see generally, Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1178-79 (1989).  Exemption 4 doctrine seems precisely the sort of legal question to which a version of Kozel’s “stare decisis as fallback” theory might appropriately apply; given the ambiguity of Exemption 4’s text, long-standing uniform Circuit precedent should be left undisturbed absent some other compelling reason to upend it.

Three reasons to reject deference to lower court precedence in the Exemption 4 context warrant consideration.  First, to defer might allow intermediate courts to usurp the role of the Supreme Court.  Second, an atextualist interpretation might be considered inconsistent with the judicial role in the democratic system.  Third, National Parks may cause practical problems.

There is hardly a danger of lower courts usurping the Supreme Court’s role.  National Parks became doctrinally entrenched not because of any action of the courts of appeal, but because the Supreme Court has decided not to consider the issue by way a writ of certiorari for over 40 years.  (Contrast the proposed deference to uniform Circuit law with Chevron deference to agency interpretations of statutes on this score, see, Bernard W. Bell, Using Statutory Interpretation to Improve the Legislative Process: Can it be Done in the Post-Chevron Era?,” 13 J. LAW & POL. 105, 116-32 (1997)).  National Parks was consistent with the Supreme Court’s methodological approach to statutory interpretation at the time it was decided, and quite likely was consistent with congressional expectations.  See, Philip P. Frickey, From The Big Sleep To The Big Heat: The Revival Of Theory In Statutory Interpretation, 77 MINN. L. REV. 241, 249-50 (1992)(describing Hart & Sacks approach dominant from 1958 until the mid-1980’s); Bernard W. Bell, R-E-S-P-E-C-T: Respecting Legislative Judgments in Interpretive Theory, 78 N.C. L. REV. 1253, 1270-71 & n.61 (2000)(congressional view of legislative history).

Some textualists argue that their interpretive approach is constitutionally-mandated.  See, OFFICE OF LEGAL POL’Y, U.S. DEP’T. OF JUSTICE, USING AND MISUSING LEGISLATIVE HISTORY 47-49 (1989); In re Sinclair, 870 F.2d at 1343-44 (7th Cir. 1989)(Easterbrook, J.); U.S.  v. Taylor, 487 U.S. 326, 345-46 (1988) (Scalia, J., concurring).  If that is the case, then overruling atextual precedents is constitutionally mandated.  But Exemption 4 text is somewhat ambiguous.  Moreover, surely the Court should have granted certiorari early on if rejection of National Parks were constitutionally compelled.

With respect to National Parks’ practical effects, i.e., its workability, Settled Versus Right, supra, at 1860, the inquiries into competitive harm that National Parks mandates seems to require evidentiary hearings to resolve factual disputes. Animal Legal Defense Fund v. FDA, 819 F.3d 1102, 1110, 1112 (9th Cir.) (per curiam, concurring), rev’d, 836 F.3d 987, 990 (9th Cir. 2016) (en banc); Argus Leader v. U.S. Department of Agriculture, 224 F.Supp.3d 827 (D.S.D. 2016), aff’d, Food Marketing Institute v. Argus Leader Media, 889 F.3d 914 (2018), mandate stayed, − U.S. – (Aug. 29, 2018); Margaret B. Kwoka, The Freedom Of Information Act Trial, 61 AM. U. L. REV. 217, 269-71 (2011).  This contrasts with the general practice in FOIA cases, which are generally resolved either on summary judgment largely based on Vaughn indexes and affidavits provided by the agency, id. at 246, 247-49, 264, or, if there remains a genuine factual dispute, by the District Judge’s in camera inspection of the documents at issue, id. at 246-47.  Thus, in FOIA cases courts rarely hold evidentiary hearings, id. at 256-57, 260, or even permit discovery, id. at 246, 271.  Congress has embraced the use of in camera review to resolve cases, 5 U.S.C. §552(a)(4)(B); H.R. REP. 93-1380, 93D CONG. 2D SESS. 225-26 (Sept. 1974), and has done nothing to disapprove of the courts’ uniform approach of resolving almost all FOIA cases based largely on agency affidavits.  Revisiting National Parks to craft a test that does not turn on factual matters that must be resolved by evidentiary hearings could provide a significant reason for reconsidering National Parks, despite the prospects of unsettling a heavily-litigated area of FOIA law.  That said, even with the current state of the law, from 1995 through 2008, the number of FOIA trials varied between 0 and 2 per year.  Kwoka, supra, at 256-57.

Textualists may well find the second argument presented above sufficient to upend well-established, relatively uniform, and generally-workable court of appeals law.  Some pragmatists may find the third argument enticing.  But others may find none of the three particularly compelling in these circumstances.

V. The Last Post in This Series

This post and the preceding ones in this series has focused upon Food Marketing Institute v. Argus Leader Media.  The fourth and final post will focus on separate litigation brought by food retailers to protect SNAP aggregate redemption data, Texas Retailers Association v. U.S. Department of Agriculture, Dkt. No. 18 Civ. 659 (W.D. Tex. Aug. 8, 2018).