Presumption of Regularity
The government’s single greatest advantage is the respect afforded it by the courts. That advantage manifests in a variety of ways—from judicial doctrines of administrative deference to an informal willingness to take the government’s factual representations at face value. Opposing advocates should try either to fight on terrain to which this deference does not apply or to nullify it in some manner.
One prominent form of judicial respect is the “presumption of regularity,” under which courts presume that “official duties” of federal officers have been “properly discharged” unless there is “clear evidence to the contrary.” United States v. Chem. Found., Inc., 272 U.S. 1, 14–15 (1926). Under the presumption, courts afford the government the benefit of the doubt in areas ranging from a search for records under the Freedom of Information Act (FOIA) to alleged misconduct in government decision-making processes to the compiling of an administrative record. See generally Note, The Presumption of Regularity in Judicial Review of the Executive Branch, 131 Harv. L. Rev. 2431, 2433 (2018) (noting that the presumption applies when a challenger “alleges procedural or motivational misconduct”).
If a private party lacks significant evidence of irregularity, it is typically unhelpful to attack activities covered by the presumption—no matter how much an advocate might be frustrated at the lack of thoroughness of governmental efforts or even suspect impropriety. And given the respect generally afforded government attorneys by appellate judges (many of whom once served in government roles themselves), launching ad hominem attacks without factual support is rarely a wise tactical choice. Framing objections to government action in terms of agency overreach, bureaucratic myopia, or misapprehension of governing legal standards will generally be far more successful than accusations of bad faith.
Of course, if evidence of malfeasance does exist, it can play a crucial role. Courts display little patience with government actors who abuse the trust placed in them, and decisive proof of bad behavior—or even deliberate obfuscation—can all but resolve litigation in a private party’s favor.
Opportunities in Changed Positions
The long paper trail of the government presents occasional opportunities to undermine more informal strains of deference. Has the government—or one of its agencies—taken a different position in the past? Perhaps the Office of Legal Counsel released a memo decades ago opining on a related issue, or the DOJ submitted an amicus brief in a prior administration taking a diametrically opposed position. Those shifts can counter the government’s implicit suggestions that a court should defer to its judgment regarding the facts at hand, or can be used to dismiss a parade of horribles that assertedly will follow from judicial involvement in an area of executive expertise.
To be sure, pointing out a change in positions does not guarantee victory: The government’s old stance may have been wrong and its new one right. And the executive branch has considerable flexibility to change its policy positions or arrive at new interpretations of ambiguous statutes. Policy flexibility, however, does not extend to changes in factual representations. Demonstrating to a court that the government previously understood the factual context of a case differently, held a different position on the practical ramifications of a particular judicial ruling, or argued that a statutory term’s meaning was unambiguous (and different than its current reading) goes far toward undermining any claim to deference. And a position switch that seems politically motivated is particularly likely to raise judicial eyebrows. This expectation of consistency increases before the Supreme Court, and justices have on more than one occasion taken the government to task for position changes across administrations.
A Matter of Timing
Procedurally, courts’ respect for the government manifests in areas such as the relatively free grant of extensions. This can occasionally be frustrating—courts are unlikely to refuse the government’s requests for even a lengthy extension of time to file a brief, and opposing such extensions is often useless unless there is a compelling reason for haste. Rather than fighting this tendency, however, appellate practitioners would be wise to make use of it. A joint request for an extended briefing schedule filed by the government is more likely to be granted than a unilateral extension request from a private practitioner—and advocates would therefore be wise to reach out to their government counterparts to devise a briefing schedule if they anticipate that an extension will ultimately be helpful.
Substantive Challenges and Opportunities
Substantively, the government has both strengths and liabilities not shared by private parties—and litigants should spend time assessing these early in the course of an appeal.
Standing, for instance, is a significant hurdle when bringing affirmative challenges to government action. Litigants frequently confront arguments that their injury is too speculative to confer constitutional standing, not sufficiently particularized, or not redressable by a favorable decision—perhaps because private parties will not be bound to take any action or because independent state laws will still prohibit particular conduct. Because constitutional standing is not waivable, advocates may find themselves addressing the issue for the first time on appeal (or discover that a perfunctory standing argument leveled in the district court has been developed in the court of appeals into one with the potential to end litigation).
Doctrines such as competitor standing, under which courts have held that governmental action that unfairly benefits a competitor or increases competition confers standing, are helpful in this regard. See Sherley v. Sebelius, 610 F.3d 69, 72 (D.C. Cir. 2010). So, too, is the doctrine of informational standing, as well as relaxed standing requirements in the First Amendment context. See Dreher v. Experian Info. Sols., Inc., 856 F.3d 337, 345 (4th Cir. 2017) (informational standing); Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973) (First Amendment standing). Advocates should also bear in mind the various exceptions to ripeness and mootness.
The government also has at its disposal a multitude of substantive and procedural defenses, ranging from the discretionary-function exception of the Federal Tort Claims Act to the state secrets privilege. If seeking damages from the federal government, parties should have thought through an appropriate waiver of sovereign immunity. And damages actions against individual officers will often require a deep dive into the vagaries of qualified-immunity jurisprudence and Bivens “special factors” analysis—as well as lengthy litigation stemming from the availability of interlocutory appeal for denials of immunity.
Conversely, weapons can be used against the government that are unavailable when facing private parties and thus easily forgotten by advocates. If government attorneys have become too creative in defending an agency’s decision-making on appeal, for instance, private parties can dismiss those arguments under the Chenery doctrine. See SEC v. Chenery Corp., 318 U.S. 80 (1943) (holding that government may not defend an administrative decision on grounds not relied on by the agency itself). And the increasing use of the First Amendment to challenge governmental action in a variety of spheres is well known. See, e.g., Discount Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509, 569 (6th Cir. 2012) (holding that distribution of free tobacco samples qualified as protected speech); Defense Distributed v. State, 838 F.3d 451 (5th Cir. 2016) (considering First Amendment challenge to regulations prohibiting export of technical data related to firearms).
More recently, litigants have had considerable success challenging action undertaken by decision makers who were not validly appointed under the Constitution’s Appointments Clause. See Lucia v. SEC, 138 S. Ct. 2044 (2018) (holding that administrative law judges of the SEC were unconstitutionally appointed and remanding for a new agency hearing); Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320 (Fed. Cir. 2019) (remanding decision by Patent Trial and Appeal Board due to Appointments Clause violation). These Appointments Clause arguments have occasionally been entertained by courts of appeals even though not raised before agency decision makers. See Arthrex, Inc., 941 F.3d at 1339–40.
Enlisting the Government
A final case type bears mention: one where the government is not yet involved, but should be. This scenario is most common at the Supreme Court, where the United States frequently participates in granted cases. Advocates responsible for merits cases in which the federal government could conceivably have an interest would be well served to reach out to the Office of the Solicitor General to seek support. In doing so, advocates should argue not only that their side’s position is correct (though that is an important consideration) but that the position aligns with the interests of the government writ large.
Government attorneys may also occasionally be persuaded to participate in the courts of appeals. The DOJ rarely files amicus briefs unless invited to do so by the court—although an uninvited amicus is by no means unheard of when significant federal interests are at stake, or in cases involving civil rights. State attorneys general, however, increasingly participate in prominent impact litigation and may be persuaded to file amicus briefs in appropriate cases. The details of procuring support will necessarily vary according to the governmental entity and the nature of the case. But a supportive brief filed by the United States or a state government may carry real weight with a court—and allows private practitioners to benefit from the same judicial respect with which they are usually forced to contend.
