Statutory Construction Zone

SUMMARY OF OPINIONS ISSUED OCTOBER 16-31, 2002

QUOTATIONS OF THE WEEK:

“When the law speaks universally . . . and a case arises on which it is not covered by the universal statement, then it is right, where the legislator fails us and has erred by over-simplicity, to correct the omission - to say what the legislator himself would have said had he been present, and would have put into his law if he had known.”

THE NICHOMACHEAN ETHICS OF ARISTOTLE 133 (Sir David Ross trans., 1925).

“The duty of the Legislature is to make the law, or a general rule for all cases; that of the judge, to declare and apply the law to particular instances. When a case of doubt arises in regard to a statute, the first duty of the judge is to ascertain the meaning of the legislator who framed it, that is, to construe or interpret the statute as the legislator himself would have done . . . .”

THEODORE SEDGWICK, A TREATISE ON THE RULES WHICH GOVERN THE INTERPRETATION AND CONSTRUCTION OF STATUTORY AND CONSTITUTIONAL LAW 252 (1874)

CASE SUMMARIES:

D.C. Circuit

California Department of Water Resources v. FERC, 306 F.3d 1121 (D.C. Cir. Oct. 18, 2002) (Randolph)

Statutes/regulations construed: Section of Federal Power Act that provides that a “state commission aggrieved by an order issued by the [Federal Energy Regulatory] Commission . . . may apply for rehearing.”

Conclusion: California Department of Water Resources was not “aggrieved” by FERC orders because it did not suffer an “injury-in-fact” from those orders.

Ethyl Corporation v. EPA, 306 F.3d 1144 (D.C. Cir. Oct. 22, 2002) (Williams)

Statutes/regulations construed: Section of Clean Air Act stating that EPA administrator “shall by regulation establish methods and procedures for making tests” regarding motor vehicle emissions.

Conclusion: EPA program that provided criteria for individual automobile manufacturers to develop their own test methods and procedures, which the EPA approved in a process that did not involve rulemaking, was not establishment “by regulation” of “methods and procedures for making tests.”

International Union of Painters & Allied Trades v. NLRB, 309 F.3d 1 (D.C. Cir. Oct. 25, 2002) (Williams)

Statutes/regulations construed: Section of National Labor Relations Act that relates to construction industry collective bargaining agreements.

Conclusion: Petitioner “has pointed to no specific facts” that distinguish the case from other cases and justify creating an exception to a previously-established interpretation of the Act.

Statutory construction tool: Special circumstances: The court referred to the “proposition that application of a generally valid rule may prove invalid in a case presenting special circumstances.” Id. at 5.

Federal Circuit

Mudge v. United States, 308 F.3d 1220 (Fed. Cir. Oct. 17, 2002) (Prost)

Statutes/regulations construed: Section of Civil Service Reform Act (CSRA) stating that, with certain exceptions, collective bargaining agreement procedures “shall be the exclusive administrative procedures for resolving grievances which fall within its coverage.” Congress had amended the Act in 1994 to add the word “administrative.” The Federal Circuit had “interpreted the pre-1994 language to preclude federal employees from resolving grievances covered by their [collective bargaining agreement] in court.”

Conclusion: “Congress’s addition of the word ‘administrative’ to [the Act] established a federal employee’s right to seek a judicial remedy for employment grievances subject to the negotiated procedures contained in his or her CBA.” Id. at 1227.

Statutory construction tools:
• Administrative/judicial: “Consulting Black's Law Dictionary, we find the meaning of ‘administrative’ to be ‘distinguished from such [functions and acts] as are judicial.’” Id. at 1228.
• Technical amendment: Even though the word “administrative” was added “via a technical and conforming amendment,” the amendment “did not involve the deletion of superfluous language but rather the affirmative addition of statutory text” and the court applied the usual tools of statutory construction “to all relevant amendments to the CSRA, regardless of their title.” Id. at 1229.
• Legislative history—lack of explanation for change: In response to argument that Congress would not fundamentally alter the CSRA “without discussion, explanation, or debate,” the court stated: “The government impermissibly distorts the correct approach to legislative history when it suggests that Mr. Mudge bears the burden of finding additional support therein for the plain and unambiguous language of the statute . . . ‘it would be a strange canon of statutory construction that would require Congress to state in committee reports or elsewhere in its deliberations that which is obvious on the face of a statute.’ To the contrary, it is the government that must show clear legislative history supporting its construction because it is the government that seeks to construe the statute contrary to its plain text. The government may not discharge this burden by pointing to what the legislative history does not demonstrate. Where, as here, that history fails to make the sort of ‘extraordinary showing’ required . . . we must construe the statute according to its plain language.” Id. at 1229-30.
• Legislative history—lobbyist’s motives: “[T]he courts ‘ought not attribute to Congress an official purpose based on the motives of a particular group that lobbied for or against a certain proposal.’” Id. at 1230.
• Legislative history—different bill: “We are similarly unconvinced by Mr. Mudge’s arguments concerning statements made in a House committee report accompanying a different bill, H.R. 2721. While H.R. 2721 also sought to add the word ‘administrative’ to § 7121(a)(1), it did not pass either body of Congress.” Id. at 1230.
• Presumption--judicial interpretations: “In interpreting § 7121 as amended, we presume that Congress was aware of any administrative or judicial interpretations of the statute.” Id. at 1232.
• Presumption--amendment: “We also presume that Congress intended to change the law by amending it.” Id. at 1232.

Seventh Circuit

Seggerman Farms v. Commissioner of Internal Revenue, 308 F.3d 803 (7th Cir. Oct. 24, 2002) (Bauer)

Statutes/regulations construed: Federal tax statute providing an exception to a non-recognition provision regarding transfer of property.

Conclusion: The court refused to create an exception “to the clear and unambiguous provisions” of the statute in a case in which the “transfers were made subject to liabilities in excess of the taxpayer's basis in the property.”

Statutory construction tools:
• Strict/mechanical interpretation: In response to argument urging court not to follow decisions that appellants characterized as “strict” and “mechanical” interpretations, the court noted: “That the interpretations adopted in Rosen and Testor were either restrictive or mechanical takes nothing away from their precedential value. After all, statutory interpretation is precisely the business of the judiciary. It is well within the ambit of this (or any other) Court to interpret statutory language as restrictively or mechanically as it deems appropriate so long as it respects the bounds of controlling precedent and the Constitution.” Id. at 806-07.
• Equitable power/hardship: “[W]e are unpersuaded by the Seggermans' suggestion that this Court ought to exercise its general equitable power to fashion a case-specific exception to the clear and unambiguous provisions of § 357(c). While we recognize that the practical effects of § 357 subject the Seggermans to harsh tax consequences - indeed, consequences that they may not have contemplated in the planning stages of the incorporation and property transfer transactions - we decline to disregard the plain language of the tax code. For this Court to ‘aid the legislative amendment process by pointing out the unjust dilemma facing the Petitioners [by] reversing the Tax Court in this case,’ as the Seggermans would have us do, would be to exceed the scope of our judicial function. Absent any ambiguity on the face of a statute, it is the province of the legislative branch, rather than the judiciary, to safeguard the taxpayer from undue hardship resulting from its application.” Id. at 808.

CALLED, BUT NOT CHOSEN:
Paralyzed Veterans of America v. Secretary of Veterans Affairs, 308 F.3d 1262 (Fed. Cir. Oct. 17, 2002) (agency General Counsel opinion was not a “rule” within the meaning of statute making agency rule directly reviewable by the Federal Circuit)
Stone v. Hamilton, 308 F.3d 751 (7th Cir. Oct. 18, 2002) (application of the Food Stamp amendments to pre-1996 overissuances of food stamps constituted an impermissible retroactive application of a statute)
Illinois Association of Mortgage Brokers v. Office of Banks and Real Estate, 308 F.3d 762 (7th Cir. Oct. 21, 2002) (the regulation “of all home mortgage lenders” by The Home Ownership and Equity Protection Act of 1994 did not repeal the “rule of parity between state and federal institutions in alternative mortgage transactions” in the Alternative Mortgage Transaction Parity Act of 1982—“the 1994 Act neither repeals the 1982 Act in terms nor is logically inconsistent with it, so the two may coexist.”)
Mohammed v. Reno, 309 F.3d 95 (2d Cir. Oct. 24, 2002) (section of Immigration and Nationality Act which limits injunctive relief did not apply to a court’s consideration of a stay pending appeal: “[W]hen Congress wished to legislate concerning a stay pending appeal, it explicitly used the word ‘stay.’”)
EEOC v. Sidley Austin Brown & Wood, 315 F.3d 696 (7th Cir. Oct. 24, 2002) (discussing the term “employee” in the Age Discrimination in Employment Act, which “protects employees but not employers.”)
Competitive Telecommunication Association v. FCC, 309 F.3d 8 (D.C. Cir. Oct. 25, 2002) (Telecommunications Act of 1996 did not bar placing “service-by-service restrictions” on the use of “unbundled network elements”)
Goodrich v. Town of Middlesbury, 311 F.3d 154 (2d Cir. Oct. 29, 2002) (under section of the Comprehensive Response, Compensation, and Liability Act of 1980 which authorizes contribution claims, the award of prejudgment interest and compound interest was mandatory)

LAW REVIEW ARTICLE RECOMMENDATION: Nicholas S. Zeppos, The Use of Authority in Statutory Interpretation: An Empirical Analysis, 70 Texas L. Rev. 1073 (1992)

ENGLISH COMMON-LAW TRIVIA QUESTION:
[Name of first person to answer correctly will be posted on this weblog. Please e-mail answers to statconzone@yahoo.com.]

Who was Chief Justice of the Court of King's Bench in 1776? For extra credit, give both his name and his title. For extra extra credit, list the years that he was Chief Justice. For extra extra extra credit, give the Thomas Jefferson quotation that refers to him in describing Blackstone.

Much credit to Nik Chanda of Walnut Creek, California for the following answer:

William Murray (Lord Mansfield) served as the Chief Justice of the King's Bench from 1756 through 1788, when he retired due to ill health at the age of 80. In 1776 he was named Baron Mansfield, making him the Earl of Mansfield. Thomas Jefferson quoted him as saying, `the essential principles of revealed religion are part of the common law,' in his description of Blackstone in a letter to Major John Cartwright, Monticello, June 5, 1824.

Excellent answer, and I see that I was not specific enough with the question. For the extra extra extra credit, this is the quotation that I had in mind: "You will recollect that before the revolution, Coke Littleton was the universal elementary book of law students, and a sounder whig never wrote, nor of profounder learning in the orthodox doctrines of the British constitution, or in what were called English liberties. You remember also that our lawyers were then all whigs. But when his black-letter text, and uncouth but cunning learning got out of fashion, and the honied Mansfieldism of Blackstone became the student's hornbook, from that moment, that profession (the nursery of our Congress) began to slide into toryism, and nearly all the young brood of lawyers now are of that hue." Letter from Thomas Jefferson to James Madison (Feb. 17, 1826).

Lord Mansfield is mentioned in hundreds of U.S. Supreme Court opinions.

SUMMARY OF OPINIONS ISSUED OCTOBER 1-15, 2002

QUOTATIONS OF THE WEEK:

"On this subject of the Interpretation of Statutes, misapprehensions more wide and injurious prevail in the profession than on almost any other in the entire law. It is often presumed to proceed without rules, and to present views changing, as in a kaleidoscope, with every legislative turn in the enactment of a new statute. But in truth, statutory interpretation is governed as absolutely by rules as anything else in the law. And the rules are of common-law origin. In large part, they adhere to the subject itself, in whose very nature they dwell, so that even legislation cannot cast them off."

JOEL PRENTISS BISHOP, COMMENTARIES ON THE WRITTEN LAWS AND THEIR INTERPRETATION 3 (1882)

"Statutory interpretation is a search for legislative meaning in the context of a particular question before the court."

ABNER MIKVA & ERIC LANE, AN INTRODUCTION TO STATUTORY INTERPRETATION AND THE LEGISLATIVE PROCESS 6 (1997)

CASE SUMMARIES:

D.C. Circuit

Association of American Railroads v. Surface Transportation Board, 306 F.3d 1108 (D.C. Cir. Oct. 8, 2002) (Silberman)

Statutes/regulations construed: Preamble of the Staggers Act, which Congress enacted “to deregulate the rail industry.” The preamble contained language calling for "competition and demand for services . . . to establish reasonable rates for rail transportation . . . to the maximum extent possible . . ."

Conclusion: “While we recognize that the Board's construction [of the preamble] was not the only permissible view, its attempt to strike a balance between the various statutory objectives is reasonable (not arbitrary or capricious).” Id. at 1111.
Statutory construction tool: Statute’s preamble: In previous decision, the court held that even though the Board’s decision was “reasonable in isolation”—that is, “as an interpretation of the key language” it was arbitrary and capricious for the Board to construe a statutory term (“market dominance”) without “considering the preamble policy.” The policy goals in the statute were “somewhat contradictory” but “it is up to the Board to arrive at a reasonable accommodation of the conflicting policies set out” in the Act and “it is reasonable to presume that if Congress had wanted for indirect competition to be a mandatory consideration in the market dominance inquiry, it would have stated so directly.” Id. at 1111-12.

Flatow v. Islamic Republic of Iran, 305 F.3d 1249 (D.C. Cir. Oct. 8, 2002) (Rogers)

Statutes/regulations construed: Victims of Trafficking and Violence Protection Act of 2000 and International Emergency Economic Powers Act (IEEPA).

Conclusion: District court properly interpreted phrase “transactions [that] are prohibited or regulated” under IEEPA and properly limited the scope of the subpoena pursuant to that legal interpretation to exclude Iranian property subject to a license by the federal government.

Federal Circuit:

AT&T v. United States, 307 F.3d 1374 (Fed. Cir. Oct. 8, 2002) (Rader)

Statutes/regulations construed: Section 8118 of the Department of Defense Act, relating to defense contracts.

Conclusion: “In sum, the language of section 8118 provides for legislative oversight and enforcement. The section does not create a cause of action inviting private parties to enforce the provision in courts.” Id. at 1379.

Statutory construction tool: Legislative enforcement: “The language of section 8118 does not explicitly create a cause of action for enforcement of its expenditure prohibitions. Instead the only explicit provision with enforcement consequences in section 8118 requires quarterly reports to the ‘Committees on Appropriations of the Senate and the House of Representatives in writing.’ Thus, section 8118 envisions enforcement, if any, through legislative procedures. The language permits the appropriate legislative committees to monitor compliance and, presumably, guarantee enforcement in the form of future reductions in, or limitations on, appropriated funds. Indeed, appropriation bills often contain this kind of oversight provision that permits the appropriation committees to properly monitor federal spending programs. Based on that oversight, the committees and Congress can then adjust the spending allotments in future bills to ensure compliance with legislative objectives. Thus section 8118 is an appropriations oversight provision that envisions enforcement, if any, in the form of legislative spending adjustments in future bills. Section 8118 does not make any provision for judicial enforcement.” Id. at 1377-78 (citations omitted).

Fourth Circuit:

Chambers v. Reno, 307 F.3d 284 (4th Cir. Oct. 15, 2002) (Traxler)

Statutes/regulations construed: Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

Conclusion: Application of statute, which repealed discretionary relief formerly available, was not impermissibly retroactive.

Statutory construction tool: Retroactivity: “A new statute does not produce a retroactive effect ‘merely because it is applied in a case arising from conduct antedating the statute's enactment.’ The question instead is ‘whether the new provision attaches new legal consequences to events completed before its enactment.’ . . . The question of whether a new statute attaches new legal consequences to prior conduct ‘demands a commonsense, functional judgment’ that "should be informed and guided by familiar considerations of fair notice, reasonable reliance, and settled expectations.’” Id. at 289 (citations omitted).

CALLED, BUT NOT CHOSEN:
Boomer v. AT&T Corporation, 309 F.3d 404 (7th Cir. Oct. 3, 2002) (the term “This Act” in the savings clause of the Telecommunications Act of 1996 referred to that Act, not the Communications Act of 1934)
McCormick v. Department of the Air Force, 307 F.3d 1339 (Fed. Cir. Oct. 4, 2002) (definition of “employee” in Merit Systems Protections Board statute was disjunctive, and thus provided “alternative definitions” under which claimant could establish jurisdiction of the Board)
Pratt v. Greiner, 306 F.3d 1190 (2d Cir. Oct. 4, 2002) (a state court motion based on a fraudulent document was “properly filed” within the meaning of the Antiterrorism and Effective Death Penalty Act of 1996)
Ty, Inc. v. Perryman, 306 F.3d 509 (7th Cir. Oct. 4, 2002) (commercial uses that accelerate the transition from trademarks to generic names are not “dilution” within the meaning of the federal antidilution statute)
United States v. Alfisi, 308 F.3d 144 (2d Cir. Oct. 8, 2002) (under federal bribery statute, “bribery” includes “payments in exchange for an act to which the payor is legally entitled”)
Sphere Drake Insurance v. All American Life Insurance Company, 307 F.3d 617 (7th Cir. Oct. 9, 2002) (under Federal Arbitration Act, “evident partiality” for a party-appointed arbitrator, “must be limited to conduct in transgression of contractual limitations.”)

LAW REVIEW ARTICLE RECOMMENDATION: Nicholas Quinn Rosenkranz, The Federal Rules of Statutory Interpretation, 115 Harvard L. Rev. 2085 (2002)

ENGLISH COMMON-LAW TRIVIA QUESTION:
[Name of first person to answer correctly will be posted on this weblog. Please e-mail answers to statconzone@yahoo.com.]

The author of the leading 17th century English common law treatise is depicted on the doors to the main entrance to the U.S. Supreme Court. Name the author. For extra credit, name the treatise.

Congratulations to Donald Thomas, Jr. of Silver Spring, Maryland for providing this correct answer (and getting the extra credit):

I believe you are asking about the great Edward Coke and his 4 volume set ... Institutes of the Laws of England.