For some time, I have been troubled by the broad idea that appellate attorneys, and especially lawyers before the Supreme Court, can offer new facts and pieces of information to the court, that were not introduced in the record below. Ali Orr Larsen has written extensively on this topic. In most cases, the record is the record, and facts outside the record are not considered. But the Supreme Court never seems to care about this. A special species of this phenomenon is when the United States government offers certain facts on appeal that were not known in the lower court. Specifically, when the government makes representations about the government’s positions.

In my research for Unprecedented, I found there was one such key representation made that was not in the record below, and one unacknowledged retreat from an earlier position that was in the record. First, the Solicitor General asserted, for the first time on appeal, that there were no collateral consequences for not purchasing insurance. In other words, the only requirement was to pay the tax. This had been argued before, but it was never so clearly stated as the government’s policy. This representation was critical for the Chief Justice’s saving construction for reasons I identify here.

Second, at the Supreme Court, the Solicitor General retreated from HHS’s earlier position that Arizona’s refusal to accept the Medicaid expansion would result in a loss of *all* funds. Though that position was clearly stated in a letter sent to Governor Brewer, the Solicitor General bobbed and weaved, and refused to acknowledge it, saying that he could not limit the Secretary’s powers. For both of these issues, there was no ascertainable facts, beyond the Solicitor General’s representations, of what the government’s position actually was. I know from my private interviews with government lawyers that the SG had to fight tooth and nail for the first position. For the second position HHS, would not relent. So where does that leave litigants?

The importance of the SG’s representation of internal government policies that cannot be ascertained was highlighted by the recent dispute in Nken v. Holder. In that case, the SG made a representation that the government will help bring back aliens deported who ultimately win their court case. That was utterly false. Only through FOIA litigation did that error come to light, and did the SG confess error. Amanda Frost writes about a fascinating new article that chronicles how this error was discovered, how the government ultimately confessed error, and how to minimize these problems. Here is the abstract of “Convenient Facts: Nken v. Holder, The Solicitor General, and the Presentation of Internal Government Facts.”

In April 2012, facing a court order to disclose internal Justice Department e-mails, the Office of the Solicitor General (OSG) wrote to the United States Supreme Court in Nken v. Holder to admit that it had made a factual statement to the Court three years earlier about agency policy and practice that were not accurate. The statement had been based on e-mail communications between Justice Department and agency lawyers. In fact, the statement neither reflected the content of the e-mails nor the actual policy and practice of the relevant government agencies. The letter promised remedial measures and concluded by assuring the Court that the OSG took its responsibility of candor seriously.

The underlying factual representation by the OSG in Nken case was unusual because it attracted attention and lengthy FOIA litigation that led to the disclosure of the communications that served as the basis of the statement. But it is not at all unusual as an example of unsupported factual statements by government lawyers that are used to support legal arguments. Indeed, unsupported statements appear in OSG briefs on a wide range of issues. These statements benefit from the unusual position of the government: it has access to information not available to other litigants, and it benefits from a presumption of candor that endows its statements with a claim of self-evident authority that no private litigant could match.

The Nken case provides a unique opportunity to explore the consequences of judicial acceptance of fact statements provided by the OSG. Because of Freedom of Information Act litigation, we have an opportunity to examine how the OSG gathered information as well as the role played by government counsel at the Justice Department and the interested agencies. This examination shows multiple dangers with unsupported statements about internal government facts. It also demonstrates the difficulty of relying on lawyers representing the government to seek out and offer information that will undermine the government’s litigation position.

Prevention of misleading statements could be pursued through greater self-regulation, prohibition of extra-record factual statements or through a model of disclosure and rebuttal. This Article argues that the experience in Nken reflects the grave danger in presuming that self-regulation is an adequate safeguard against erroneous statements. It further argues that despite the appeal of a rigid rule that prohibits such statements, such an approach ignores the Court’s thirst for information about real world facts that are relevant to its decisions. The Article concludes by arguing that the best approach is to adopt a formal system of advance notice combined with access to the basis of government representations of fact.Here is the proposed model of disclosure:

A disclosure model would require the government to disclose any non-public documents that serve as the factual basis for any statements that it makes about government policy, practice, statistics, or other facts. These documents might be internal agency memoranda, data sets, or any other materials that serve as the basis of the government’s fact statements. Such access is ordinarily provided through citations to the record or to public documents. When the government chooses to reach beyond these public sources, it would be required to provide access to the materials on which it relies. …

Any rule that requires disclosure would undoubtedly change the way that the OSG gathers information. The OSG could not view fact questions to agencies as matters of privilege. If the OSG wanted to add facts on appeal, it would have to seek out the kind of documents that could serve as support for such fact statements. The OSG might refrain from making a fact claim when the only basis for its assertion was as limited as in Nken. In this way, a disclosure rule would serve to inhibit poorly supported fact statements.