SUMMARY OF OPINIONS ISSUED NOVEMBER 16-30, 2002

QUOTATIONS OF THE WEEK:

“Statutory interpretation is the Cinderella of legal scholarship. Once scorned and neglected, confined to the kitchen, it now dances in the ballroom.”

WILLIAM ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION 1 (1994)

“The fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law.”

1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND * 59 (1765)

CASE SUMMARIES:

Federal Circuit

Fireman’s Fund Insurance Company v. Secretary of the Navy, 313 F.3d 1344 (Fed. Cir. Nov. 27, 2002) (Friedman)

Statutes/regulations construed: The Anti-Assignment Act, which has exceptions for a “financing institution.”

Conclusion: The court did not give an “expansive reading” of the term “financing institution” and concluded that Appellant, “an insurance company writing insurance policies to protect against risks,” was not a “financing institution.”

Statutory construction tool: Exceptions: "Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied in the absence of a contrary legislative intent.”

Haddon v. Executive Residence at the White House, 313 F.3d 1352 (Fed. Cir. Nov. 27, 2002) (Clevenger)

Statutes/regulations construed: The Government Employee Rights Act of 1991 and Title VII.

Conclusion: The relevant statutory provision addressed discrimination based on race or gender, but was “silent about retaliation claims.” The court stated that “it is quite sensible to conclude that Congress intended” for it to include reprisal. “Protection against discrimination would be extremely thin if an employer could freely fire an employee for filing a discrimination claim.”

Statutory construction tool: Analogy: In determining whether the actions at issue constituted an “adverse employment action,” the court looked to how other circuits defined the term, and looked to Merit Systems Protection Board law: “Although MSPB law does not apply to this case, it does provide an extensive body of precedent that may be looked to for analogy.”

Seventh Circuit

Sierra Club v. EPA, 311 F.3d 853 (7th Cir. Nov. 25, 2002) (Wood)

Statutes/regulations construed: Rule extending deadline for St. Louis to comply with provisions of the Clean Air Act (CAA) by eight years.

Conclusion: EPA did not have authority to extend deadline for the city of St. Louis to comply with national ambient air quality standards.

Statutory construction tools:
• Implicit authority: “The EPA acknowledges that the CAA's text does not grant it such authority explicitly, but it believes that its policy is supportable nonetheless in light of a ‘broader congressional intent not to punish downwind areas affected by ozone transport.’ The most obvious problem with the EPA's approach is that Congress has already spoken to the precise question of extensions under the CAA by enacting an extension provision that looks nothing like the agency's Extension Policy . . . Congress granted the EPA authority to extend an area's nonattainment deadline, but only under narrow circumstances . . . Since the CAA explicitly delegates to the EPA the authority to grant only two years' worth of extensions, we can only conclude that the agency's decision to extend St. Louis's deadline by eight years, from 1996 to 2004, is invalid.”
• Mandatory/permissive: “The reading of the statute the EPA has adopted, and that it defends here, ‘would subvert the plain meaning of the statute, making its mandatory language merely permissive . . .’”
• Deadlines—construction: The court referred to “the general principle that a literal interpretation of deadlines and time limits is ‘the only proper reading of those words.’”
• Include/omit: “But ‘it is generally assumed that Congress acts purposely when it includes particular language in one section of a statute but omits it in another.’ Since Congress left no doubt in Subpart 1 that it knew how to grant the EPA the power to issue lengthy extensions based on feasibility and practicality, we must assume that its use of different language adopting a stricter extension policy under Subpart 2 was intentional.” (citations omitted).
• Exceptions: “Instead, all indications are that Congress created a comprehensive system of exceptions to its fairly rigid scheme, none of which even remotely resembles the Extension Policy. When Congress creates some exceptions to a statute, it is presumed that this list is intended to be exclusive.”
• Delegation/exemptions/remedies: “In the end, the EPA's argument boils down to an assertion that because Congress granted some exemptions, it must have meant that the EPA could create additional exemptions when it genuinely believed that a particular area, like St. Louis, deserves them. This argument falls flat--at least in a world where Congress holds the legislative power, agencies must operate within defined legal boundaries, and courts must respect the legislative will. Courts ‘will not presume a delegation of power based solely on the fact that there is not an express withholding of such power.’ Many statutes on the books contain detailed statutory provisions designed to implement broad congressional objectives. When Congress enacted major welfare reforms in 1996 it specifically required states to put welfare recipients into job training programs and mandated that a certain percentage of those recipients be employed by a certain date for a state to receive federal grants. Under the EPA's logic, the Department of Health and Human Services should feel free to decide that, because of current economic downturns and state budget crises, states may disregard these requirements. Or the Internal Revenue Service could on its own authority provide additional tax breaks to the poor or small businesses or even adjust tax rates on the ground that such actions will in fact stimulate more future revenue, which is what Congress really wants anyway. No one seriously thinks that those hypothetical examples would be approved, and for the same reason, we cannot endorse the EPA's position here. It is not the EPA's prerogative to disregard statutory limitations on its discretion because it concludes that other remedies it has created out of whole cloth are better.” (citations omitted).

CALLED, BUT NOT CHOSEN:
United States v. Griffin, 310 F.3d 1017 (7th Cir. Nov. 19, 2002) (under Sentencing Guidelines, making material false statements, not under oath, to law-enforcement officers, will not serve as a basis for an obstruction enhancement “without evidence that the official investigation was impeded in any manner--let alone significantly”)
United States v. Lange, 312 F.3d 263 (7th Cir. Nov. 26, 2002) (discussing the term “the public” in the Economic Espionage Act of 1996, which defines “trade secrets” as information that is not “generally known to” and “not readily ascertainable through proper means, by the public.”)

LAW REVIEW ARTICLE RECOMMENDATION: William N. Eskridge, Jr., All About Words: Early Understandings of the "Judicial Power" in Statutory Interpretation, 1776-1806, 101 Columbia L. Rev. 990 (2001).

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 great courts of the English common law grew out of the “great council of the king” which used to travel with the king until the common-law courts were established at Westminster Hall. What was the Latin name for the king’s council? For extra credit, what was the name of its Anglo-Saxon predecessor? (Hint: look in Blackstone)

SUMMARY OF OPINIONS ISSUED NOVEMBER 1-15, 2002

QUOTATIONS OF THE WEEK:

“By far the greatest part of what I and all federal judges do is interpret the meaning of federal statutes and federal agency regulations. Thus the subject of statutory interpretation deserves study and attention in its own right, as the principal business of judges and (hence) lawyers.”

ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 13-14 (1997)

“The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.”

THE FEDERALIST NO. 78

CASE SUMMARIES:

Supreme Court

Syngenta Crop Protection, Inc. v. Henson, 123 S. Ct. 366 (Nov. 5, 2002) (Rehnquist)

Statutes/regulations construed: All Writs Act and the general removal statute.
Conclusion: “Petitioners may not, by resorting to the All Writs Act, avoid complying with the statutory requirements for removal” and the statute “requires that a federal court have original jurisdiction over an action in order for it to be removed from a state court” Id. at 370, 371.

Statutory construction tool: Strict construction: “[S]tatutory procedures for removal are to be strictly construed.” Id. at 369.

Yellow Transportation, Inc. v. Michigan, 123 S. Ct. 371 (Nov. 5, 2002) (O'Connor)

Statutes/regulations construed: Regulations implementing the Intermodal Surface Transportation Efficiency Act of 1991.

Conclusion: Congress “made an express delegation of authority” to the Interstate Commerce Commission “to promulgate standards for implementing” a system of registration fees for interstate motor carriers. “The ICC's interpretation is a permissible reading of the language of the statute. And, because there is statutory ambiguity and the agency's interpretation is reasonable, its interpretation must receive deference.”

D.C. Circuit

Holland v. Barnhart, 309 F.3d 808 (D.C. Cir. Nov. 8, 2002) (Edwards)

Statutes/regulations construed: The meaning of the word “reimbursements” in The Coal Industry Retiree Health Benefit Act of 1992, which requires certain coal operators to pay annual premiums for retired coal miners’ health benefits to a fund.

Conclusion: “Chevron deference to the agency's interpretation would only be appropriate if the interpretation of ‘reimbursements’ currently in force indeed represents the agency's own reasoned interpretation.” It was unclear whether the agency acquiesced in “or was coerced” by interpretation of the Coal Act by 11th Circuit, and the court remanded for clarification.

Motion Picture Association of American, Inc. v. FCC, 309 F.3d 796 (D.C. Cir. Nov. 8, 2002) (Edwards)

Statutes/regulations construed: FCC rules mandating television programming with video descriptions.

Conclusion: If Congress had not “delegated authority” to the FCC to promulgate video description regulations, Chevron deference was not applicable. Court concluded that Congress did not delegate authority.

Statutory construction tools:
• Related statutes: “Statutory provisions in pari materia normally are construed together to discern their meaning.” Court construed sections (a), (b), and (f) of 47 U.S.C. § 713 together.
• Implicit delegation: “Congress has been scrupulously clear when it intends to delegate authority to the FCC to address areas significantly implicating program content . . . The FCC's position seems to be that the adoption of rules mandating video description is permissible because Congress did not expressly foreclose the possibility. This is an entirely untenable position.”
• Unenacted provision: “After originally entertaining the possibility of providing the FCC with authority to adopt video description rules, Congress declined to do so. This silence surely cannot be read as ambiguity resulting in delegated authority to the FCC to promulgate the disputed regulations.”
• "Public interest" authority: Statutory provision allowing FCC to regulate in the “public interest” did not provide authority for regulations: “The FCC cannot act in the ‘public interest’ if the agency does not otherwise have the authority to promulgate the regulations at issue.”
• Congressionally-mandated action: “In § 713(f), Congress authorized and ordered the Commission to produce a report - nothing more, nothing less. The statute does not, as with closed captioning, instruct (or even permit) the FCC to promulgate regulations mandating video description. Once the Commission completed the task of preparing the report on video description, its delegated authority on the subject ended.”

Wells Fargo Bank v. FDIC, 310 F.3d 202 (D.C. Cir. Nov. 8, 2002) (Tatel)

Statutes/regulations construed: The Oakar Amendment, which allowed certain banker mergers and deposit transfers, of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989. The FDIC issued an advisory letter, and later exercised its formal rulemaking authority.

Conclusion: On the issue of whether FDIC Act requirements applicable to banks that acquire a savings and loan association continue to apply when such banks are in turn acquired by other banks, the statute was ambiguous and the FDIC’s interpretation was consistent with congressional purpose.

Statutory construction tools:
• Legislative history sources: The court looked at the Senate’s original version of the bill, the conference committee reports, and a statement by the amendment’s sponsor.
• Congressional purpose: The court noted that Appellant’s interpretation “would frustrate Congress’s stated purpose and would render the statutory scheme largely meaningless” since institutions could evade statutory requirements by structuring transactions.
• Deference: “We doubt whether” the advisory letter was entitled to deference, because at the relevant time the FDIC had not exercised its formal rulemaking authority, but “at the very least, however, because the FDIC is charged with administering this highly detailed regulatory scheme, we may resort to its ‘body of experience and informed judgment’ for guidance to the extent that its position is persuasive.” (citing Skidmore).

Second Circuit

Marvel Characters v. Simon, 310 F.3d 280 (2d Cir. Nov. 7, 2002) (McLaughlin)

Statutes/regulations construed: Copyright Act of 1976

Conclusion: A settlement agreement, entered into long after a work's creation, stipulating that a work was created for hire constituted an “agreement to the contrary" under the 1976 Act.

Statutory construction tool: Treatise: The court noted that its analysis of the statute “finds support in Nimmer on Copyright . . .”

Mattel v. Barbie-club.com, 310 F.3d 293 (2d Cir. Nov. 7, 2002) (Sotomayor)

Statutes/regulations construed: Anticybersquatting Consumer Protection Act of 1999

Conclusion: The statute “provides for in rem jurisdiction only in the judicial district in which the registrar, registry, or other domain-name authority that [*2] registered or assigned the disputed domain name is located.”

Statutory construction tools:
• Structure: “The structure of” the statute “is fully consistent with this plain meaning . . . The arrangement” of the statute “separates, conceptually and chronologically, the prescriptive jurisdiction-granting language” of one subsection “from the descriptive language of legal situs” in another subsection.
• General/specific: “[T]he canon of statutory interpretation known as generalia specialibus non derogant--general provisions do not qualify specific ones--is applicable here. It would be odd for Congress to have taken pains to enact” one subsection “with its specific procedure for filing an in rem action ‘in the judicial district in which the domain registrar . . . is located,’ only to qualify, and indeed nullify, that circumscribed requirement by effectively creating nationwide in rem jurisdiction” in another subsection.
• Disjunctive: “Assuming, as we must, that Congress's choice of the disjunctive carries significance . . .”

Community Health Center v. Wilson-Coker, 311 F.3d 132 (2d Cir. Nov. 8, 2002) (Katzmann)

Statutes/regulations construed: Section of Medicaid statute that provides for reimbursement of "100 percent of the . . . costs . . . which are reasonable and related to the cost of furnishing [Medicaid] services, or based on such other tests of reasonableness as the Secretary prescribes in regulations under [Medicare] . . .”

Conclusion: State formula for reimbursement was not inconsistent with federal law. The agency interpretation of the statute as not specifically requiring “exclusive application of the Medicare regulations" to determine reimbursement formulas was a “permissible reading of the statute.”

Statutory construction tools:
• Term of art: “As the District Court observed, ‘reasonable and related’ is a term of art, and should be understood to carry with it previous authoritative interpretations.” (citation omitted).
• Deference: “In resolving this ambiguity, we owe some significant measure of deference to CMS's interpretation of the statute, although we need not decide the exact molecular weight of the deference we accord to CMS's position. In cases such as this, where a highly expert agency administers a large and complex regulatory scheme in cooperation with many other institutional actors, the various possible standards for deference begin to converge . . . We therefore accord CMS's interpretation considerable deference, whether under Chevron or otherwise. As the Supreme Court recently noted, even relatively informal HCFA (now CMS) interpretations, such as letters from regional administrators, ‘warrant[] respectful consideration’ due to the complexity of the statute and the considerable expertise of the administering agency.”
• Consistency: “Although not in itself a determinative factor, the consistency of HHS's approach also adds weight to its position. HHS and its officers have continually taken the position that [the statute] ‘does not specifically require exclusive application of the Medicare regulations.’”

CALLED, BUT NOT CHOSEN:
Taylor v. Gilkey, 314 F.3d 832 (7th Cir. Nov. 6, 2002) (“Inadequate or ineffective”: under federal habeas statutes, a “claim of error in addressing the sort of constitutional theory that has long been appropriate for collateral review” does not render a remedy by motion "inadequate or ineffective")
National Association of Home Builders v. Norton, 309 F.3d 26 (D.C. Cir. Nov. 8, 2002) (exemptions 3, 4, 5, and 6 of the Freedom of Information Act did not bar release of information on the location of nesting sites of the cactus ferruginous pygmy owl in Arizona)
Albany Bank & Trust Co. v. Exxon Mobil Corp., 310 F.3d 969 (7th Cir. Nov. 8, 2002) (Preconditions: “When Congress has explicitly enumerated the preconditions to a given entitlement (here the right to sue), a court should not infer additional ones without evidence of contrary legislative intent.”)
Williams v. Principi, 310 F.3d 1374 (Fed. Cir. Nov. 13, 2002) (where statute made effective date for benefits dependent on whether award of benefits was “pursuant to any Act or administrative issue,” the award of benefits “was first made possible by, and was thus made ‘pursuant to,’” a revised agency regulation, not earlier statutes)
McCall v. United States, 310 F.3d 984 (7th Cir. Nov. 13, 2002) (Proposed amendment: in holding that the Federal Tort Claims Act statute of limitations was not tolled during the period of a putative plaintiff’s minority, noting “This conclusion is strengthened when examined against the background of a proposed amendment in 1989 to the FTCA. In that amendment, Congress considered creating a tolling exception for minors under the FTCA's statute of limitations, but ultimately, the amendment did not make it out of committee.”)
United States v. Bryant, 310 F.3d 550 (7th Cir. Nov. 13, 2002) ("Crime of violence": “Because every escape involves ‘a serious potential risk of physical injury to another,’ we hold that the crime of escape, as a category, is a crime of violence for purposes of the federal sentencing guidelines.”)
United States v. Jackson, 310 F.3d 554 (7th Cir. Nov. 13, 2002) ("Inflict": rejecting argument that under the Sentencing Guidelines, “inflict” means a deliberate plan to produce a consequence—“’inflict’ does not require mentation . . . the actual injury occurred while Scott was grappling with Jackson, who applied force directly to Scott's person. This satisfies the normal understanding of ‘inflict.’”)
Draegert v. Barnhart, 311 F.3d 468 (2d Cir. Nov. 14, 2002) (under Social Security regulations, "there is an inherent difference" between "aptitudes" and "skills")

LAW REVIEW ARTICLE RECOMMENDATION: John F. Manning, Textualism and the Equity of the Statute, 101 Columbia L. Rev. 1 (2001).

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.]

What were the three great courts of the English common law?