With Justice Amy Coney Barrett now a member of the Supreme Court, the full bench of nine Justices resumes this week its “live” broadcasts of the audio portion of its hearings on pending cases. Because of the pandemic, the hearings are remote, not in-person.
No matter how new a Justice is to the bench, they are expected to join in the Court’s work immediately. Thus, the nation can expect to observe Justice Barrett taking turns in questioning lawyers this week. Two hearings are scheduled tomorrow, for one hour each. The public may listen to the audio portion at C-SPAN.org/supreme court
First case, starting at 10 a.m.
U.S. Fish and Wildlife Service v. Sierra Club
Background: Prompted by worries in Congress over the spread of secrecy in federal government agencies during the Cold War years, the Freedom of Information Act was passed and signed into law in 1966. The aim is simple: to make transparent and accountable to the public the processes by which the government makes and carries out policy.
The basic premise is that, upon request by an individual or an organization, a federal agency has a duty to disclose policymaking documents that were generated within that agency or in its dealings with other agencies. The default duty is to disclose: such information can only be withheld from disclosure if it fits within a specific exception spelled out in the Act. Throughout its 54 years, the Act has produced a vast record of court cases, primarily focused on defining the scope of those exceptions to disclosure.
Americans have many reasons for asking for government documents, but a pervasive reason for doing so is displeasure or disappointment with what the government has done, and the background documents are sought as evidence to support a lawsuit challenging those actions.
This case involves Exemption 5, which is not worded very clearly, and that vagueness enhances the duty of the courts to clarify its meaning. That provision allows a federal agency to refuse to disclose official memos or letters of a kind that, in a court case, would not have to be turned over by one side when demanded by the other. The courts have read that to mean any document that is protected from disclosure by a legal “privilege.” Something qualifies as a privilege if it the kind of information that normally stays private – such as a husband and wife conversation or doctor and patient consultation.
In this case, nine documents demanded by the Sierra Club, an environmental advocacy group, were withheld by the Fish and Wildlife Service and by the National Marine Fisheries Service under what is called the “deliberative process privilege.” That is a technical phrase that embodies the idea that agencies should have the option of conducting internal discussions in a frank and candid way, which might not occur if officials and employees knew that the documents they generate would someday have to be made public. (A skeptic may doubt the apparent assumption that frankness and candor only occur in private. A more benign view is that agency officials should have to defend only their final decisions, not the steps along the way. And, as a general rule, an agency can be sued only after it had made a final decision.)
The Sierra Club sought documents that suggested that fish and other aquatic life and habitat would be harmed if the Environmental Protection Agency went ahead with a proposed rule to govern the kind of devices or structures that factories and electric power plants use to draw water out of lakes, rivers and streams to cool their machinery. Those documents apparently persuaded EPA to modify its proposal, which then satisfied the two services that there would be no harm from the changed version.
The documents were prepared during an inter-agency consultation that is required by the Endangered Species Act, the federal law that compels federal agencies to take steps to avoid harming protected species. During those talks, the two Services sent biological study papers warning of the impact of the draft rule. It is those drafts that the Sierra Club went to court to demand after being turned down by the two Services.
After the Services sent many documents to the Sierra Club, but withheld others based on Exemption 5 as it claimed that those documents were protected because they were part of internal deliberations, the Sierra Club went to court. It won in a federal appeals court. The decision permitted the non-disclosure of three documents, but ruled in the Sierra Club’s favor on the other nine documents at issue.
Although directed to a preliminary EPA rule, the appeals courts ruled, the nine documents actually represented the final views of the Services about the prospect of biological harm from that version. That the EPA in response modified its rule on water intake structures, the court said, did not make the Services’ drafts less than final at the stage when they sent them to EPA. It also ruled that the nine documents were not part of any actual “deliberation.”
The two Services challenged that ruling in an appeal to the Supreme Court.
The question before the Court: Under the Freedom of Information Act, may a federal agency refuse to disclose draft documents generated in inter-agency consultation, when those drafts only applied to a government policy choice that was later modified?
Significance: The Freedom of Information Act exemption at issue is frequently the subject of court cases, and its actual meaning has split the lower federal courts. Such divisions often are the reason why the Supreme Court chooses to get involved, and very likely led to the agreement to review this case.
This particular dispute arises because some federal appeals courts have ruled that, if an internal document offering advice “dies on the vine” (as one court described the situation when an internal document does not figure in a final decision), then it does not amount to a final agency action, and disclosure is not required. That approach was rejected by the different appeals court in the Sierra Club case.
This case is significant in another way: the Endangered Species Act requires the kind of inter-agency discussions that occurred here, so clarification of when documents generated during such talks must be disclosed will shape how those discussions go. The government appeal contends that the forced disclosure of documents generated in such consultations will impair the effectiveness of that mandated consultation.
The Sierra Club counters that documents prepared during such talks are the kind of agency judgments that Congress expressly intended to be shared with the public. Those very documents, the Club notes, found that the earlier version of the EPA rule would harm endangered species, and that’s why EPA modified its rule.
Getting access to the disputed papers would likely enhance the legal challenge that the Sierra Club apparently planned to make to even the final version adopted later by EPA.
Second case, starting at about 11 a.m.:
Salinas v. U.S. Railroad Retirement System
Background: Now and then, the Supreme Court agrees to decide a case that gives some support to the comforting myth that many Americans tend to believe: that any person, low or high, has the opportunity to take a legal grievance “all the way to the Supreme Court.” The reality is that, if one has a lawyer, the chances are that the Court will hear only about 4 ½ percent of such cases each year, but if one is representing themselves (as many prison inmates do), the chances drop to .01 percent.
Manfredo Salinas of Laredo, Texas, has a lawyer – in fact, one of the most experienced and successful advocates regularly appearing before the Justices, Washington, D.C., attorney Lisa S. Blatt. The Court generally benefits when one of the more experienced members of the bar of the Court is handling a case. Those attorneys are, in fact, specialists who are very good at their craft. Not surprisingly, that helps get review of a case like this one.
Salinas is a longtime railroad worker, who has been seriously injured twice in on-the-job accidents while working for the Union Pacific Railroad. His case takes back to the Court one of the fundamental issues that regularly gets on the Court’s docket: when can one go to court to challenge a decision against them by a federal agency? It simply is not true that every action by the government can be challenged in court; there are very arcane rules spelling out when that is an option.
This case involves an agency that dates from President Franklin Roosevelt’s New Deal days: the U.S. Railroad Retirement Board. Made up of three members, the Board sits at the top of a bureaucracy that processes disputes over railroad employees’ pensions and benefits for the workers and their families.
Salinas went to the Board multiple times when his injuries limited and ultimately ended his ability to work. He sought a monthly disability allowance, but he was turned down three times. On his fourth try, the Board staff awarded him a monthly disability payment of $1,624.35, to rise later to $1,647.33. He asked the Board to reconsider that decision, and to reconsider the prior denials; he claimed that the payment should have been back-dated, so he could receive it for an additional two years. He argued that the earlier point was when he was no longer able to work.
After lower-level Board officials refused to reopen his case, he asked the Board itself to do so. It refused, concluding that Salinas had not provided a sufficient cause to change the benefit amount. The Board told him, however, that he could challenge this outcome by taking his case to a federal appeals court. He took that step, but the court ruled that it had no authority to review a Board decision against reopening a case. That, the court said, does not qualify as a final decision subject to review in court.
Salinas took the case on to the Supreme Court, noting that federal appeals courts have long been divided on whether a refusal by the Board to reopen a decision on benefits was open to challenge in court. Some have allowed such challenges, others have said such actions by the Board are not appealable to the courts. The Board joined Salinas in urging the Justices to review his case, to settle the question.
Question before the Court: If a railroad worker receives pension, disability, sickness or unemployment benefits from the Board, but disputes the amount and asks that the case be reopened, does the denial of such a request end the case, or can it be reviewed by a federal appeals court?
Significance: Working for a railroad has long been one of America’s most dangerous jobs, and the system of compensation for injuries or for death on the job has benefitted millions of such workers.
The risk of such injuries was described this way on a website that focuses on workplace safety (WorkingManLaw Blog): “Today, many might think that we’ve advanced enough that, except for a fluke now and then, the dangers of railroad work are outdated. While it’s true that the situation has improved (admittedly, the bar was low), it has by no means been solved. According to a statement by Railroad Workers United, ‘The public generally has no idea what goes on daily on America’s railroads.’ It goes on to cite concerns regarding ‘chronic crew fatigue, single employee train crews, excessively long and heavy trains, draconian availability policies, short staffing, [and] limited time off work,’ all of which work together to create an unsafe work environment and increase the chance of work injury.”
In fiscal year 2019, the Railroad Retirement Board paid unemployment or sickness benefits of $88 million to about 23,000 individuals. An average sickness or disability payment was $1,065 per month.
As Manfredo Salinas discovered, an injured railroad worker must be content – at least in parts of the country – with the way their case turns out at the Board because in those regions, the prevailing rule is that the courts are not open to hear appeals from a Board refusal to take a second look at the worker’s claims. That is not true, though, for workers in regions where the courts are open to such claims.
Presumably, the Supreme Court’s review will result in a uniform situation.