The Hidden Ideological Stakes of SCOTUS Patent Case

MICHAEL C. DORF

Cornell law professor Michael C. Dorf describes the ostensibly complex legal issues presented in United States v. Arthrex, Inc., in which the U.S. Supreme Court heard argument earlier this week, and explains how those issues reflect an ideological divide as to other, more accessible matters. Professor Dorf argues that although many conservatives would like to dismantle the modern administrative state, our complex modern society all but requires these government agencies, so conservatives instead seek to make them politically accountable through a Senate-confirmed officer answerable to the president, furthering the so-called unitary-executive theory of Article II.

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Rojas v. Federal Aviation Administration

Docket: 17-55036

Opinion Date: March 2, 2021

Judge: Paul Jeffrey Watford

Areas of Law: Government & Administrative Law

Plaintiff made a Freedom of Information Act (FOIA) request after the FAA notified him that he was ineligible for an Air Traffic Control Specialist position based on his performance on a screening test called the Biographical Assessment. At issue is FOIA's Exemption 5, which provides that FOIA's disclosure requirements do not apply to "interagency or intra-agency memorandums or letters that would not be available by law to a party . . . in litigation with the agency." The en banc court joined six of its sister circuits in adopting the consultant corollary to Exemption 5, and held that the term "intra-agency" in 5 U.S.C. 552(b)(5) included, at least in some circumstances, documents prepared by outside consultants hired by the agency to assist in carrying out the agency's functions. The en banc court explained that the relevant inquiry asks whether the consultant acted in a capacity functionally equivalent to that of an agency in creating the document or documents the agency sought to withhold. In this case, the FAA properly withheld two of the three documents at issue under that exemption. However, the en banc court held that the FAA did not establish that the remaining document is protected by the attorney work-product privilege, and the agency failed to show that it conducted a search reasonably calculated to locate all documents responsive to petitioner's FOIA request. Accordingly, the en banc court vacated the district court's entry of summary judgment for the FAA and remanded for further proceedings. The en banc court denied plaintiff's motion for judicial notice.