Supreme Court 2016 Statutory Term in Review: Perry v. MSPB, Punctuating Adverbial and Adjectival Phrases, and the Beach Boys

I've been promising people a post on Justice Gorsuch's noted dissent in Perry v. MSPB.  Much, however, as I might appear to relish taking Justice Gorsuch's opinions to task, I (a) don't, and (b) don't think there's much of real importance or methodological interest to say about the Perry dissent. However, a promise is a promise, I do have a few things to say that will probably sound familiar, and those of you who have been looking for a definitive answer to whether Gorsuch was right in Perry will get it.  So, here goes.  

As any reader of this post will no doubt recall, Justice Gorsuch began his dissent with the arresting claim that "Anthony Perry," the petitioner who would prevail 7-2, "asks us to tweak a congressional statute—just a little—so that it might (he says) work a bit more efficiently," and concluded it with the arresting suggestion that "[r]espectfully," the Court ought to "follow" the "perfectly good law" Congress wrote.  In the middle, he wrote there was "a constitutionally prescribed way" to address Perry's concerns and "it's called legislation," denounced "judicial tinkering with legislation," explained that the difficulties of "bicameralism and presentment" are "the point" of the Constitution requiring them ("the better to preserve liberty"), and said many other things in this genre.  (All of which I quite agree with, apart from its application to this statute.)

This predictably got a lot of unreflective attention.  No one, though, at least in anything published that I've seen, actually spent any time addressing whether Gorsuch was right.  The assumption seems to have been, as it usually is in such cases, that such a confident statement (especially one joined by Justice Thomas) that the Court had gone off the textual rails must be true or at least amply arguable; the problem at issue in Perry was too difficult, insignificant and dull to merit any commentary.

In arguing that the Court adopted a "seriously atextual" "tweak" of Congress's perfectly good law, Justice Gorsuch placed much of the blame for the Court's wayward interpretation on the much-pilloried Federal Circuit.  The Federal Circuit, he claimed, in a 1983 en banc, "adopted a fix [all emphases mine] much like what Mr. Perry now proposes: allowing civil service claims to tag along to district court with discrimination claims because, in its judgment, '[f]rom the standpoint of judicial economy, consideration of all issues by a single tribunal is clearly preferable.'"  What Gorsuch said the statute required was bifurcation; in an agency appeal where a federal employee raised both civil-service claims and employment-discrimination claims before the Merit Systems Protection Board, the MSPB's decision on the former claims would be reviewed in the Federal Circuit, while its decision on the latter claims would be reviewed in district court, simultaneously.

To read Justice Gorsuch's dissent, one would think the reason the Federal Circuit allowed civil-service claims to tag along to district court with discrimination claims, rather than taking up the civil-service halves of these sorts of (in the parlance of the field) "mixed" MSPB decisions itself, was "because" the Federal Circuit thought it pragmatically preferable, "in its judgment," "from the standpoint of judicial economy."  Justice Gorsuch doesn't quite make it clear whether the Federal Circuit even attempted to textually justify its "fix," or whether it copped to making a "fix" on the ground of its policy "judgment."  But I think it's at least fair to say that one would never guess from Justice Gorsuch's characterization of the Federal Circuit's decision that the Federal Circuit deemed itself bound by the statute's plain meaning to come out at the "seriously atextual" place Gorsuch says it did, or that pragmatic arguments from judicial economy played only a marginal role in the Federal Circuit's decision.

Well, one would never, as I say, guess it from what Justice Gorsuch wrote, but it's true all the same.  The fact of the matter is that the textual case for the interpretation that Gorsuch described as an atextual tweak is, if perhaps not quite unambiguously correct, compelling enough that the Federal Circuit argued with considerable force in an 8-3 decision that "[t]aking the language [of the statute] literally, one would conclude" that the matters Gorsuch argued were clearly within the Federal Circuit's jurisdiction, and could only be put outside it on atextual and dubious policy grounds, were "clearly beyond our jurisdiction."  

Influenced, however, by their sister circuits, which hadn't exactly found the statute ambiguous, but had in some instances found it difficult enough to write a few pages about it, they did pause to judiciously consider Gorsuch's preferred non-literal alternative; rejected it at great length as textually foreclosed, as had the Fifth, Tenth, First, and D.C. Circuits in interpreting a materially similar version of the statute for much the same textual reasons; and finally added in a brief policy-themed coda (Part IV of a five-part opinion, counting the conclusion) what Gorsuch represents and quotes as the sole driver of the Federal Circuit's decision.  A delightful and elegant concurring opinion by Judge Nichols argued that the case for the majority's position was "even stronger than the opinion spells out," that bifurcation was clearly foreclosed, and that it was "as unreasonable as it is contrary to the statutory language."

Finally, a thoughtful, though to my mind ultimately unpersuasive dissent "disagree[d] with the majority's assertion that [the statute], read literally, 'clearly' indicates" that appeals of this kind were beyond the Federal Circuit's jurisdiction, found a degree of ambiguity in the statute, argued that Congress never considered or addressed whether MSPB appeals would be severed or not (unlike Gorsuch, who claims Congress plainly mandated severance), and ultimately relied rather heavily on statements in committee reports on the general purpose of the Federal Circuit's jurisdictional grant in deciding that severance was the best way to handle this open question.  Moreover, after the Federal Circuit's decision, the Ninth Circuit, Eleventh Circuit, and Third Circuit all followed along for the same reasons.  (So did the Fourth, Sixth, twice, and Eighth, but all in rather cursory fashion, though that only underscores how easy they found the problem.)

No court ever disagreed with these eleven circuits; indeed, the question Gorsuch wanted to decide wasn't the question the Court granted cert to address, the parties both argued he was wrong, the government doing so against its interests, and the Court itself unanimously ratified the lower-court consensus five years ago in another case where the parties both took it as a given.  So to recap, the Federal Circuit majority thought itself textually compelled to reject Gorsuch's position, like four circuits before it, six after it, and the Solicitor General's office; the dissent, acknowledging the majority's determination of unambiguity, thought itself textually free to adopt Gorsuch's position, claimed the statute didn't resolve the question, and only ended up where Gorsuch did on the ground of a freewheeling purposivist frolic through the legislative history. 

Of course, in theory Gorsuch could have seen something in these difficult statutes that the Federal Circuit en banc and ten other circuits didn't see.  That, however, is emphatically not the case; at least if he did he's not telling us.  While there's a lot of fun rhetoric in his dissent, there isn't a word in it disputing the textual reasons that the Federal Circuit and nearly every regional circuit in the country thought that what Gorsuch called an atextual tweak was plainly the law; most of the relevant language isn't even quoted.  After reading the dissent a half-dozen times, I still don't know why he even thinks the statute ambiguous, much less why he thinks it means what it means.

The problem Gorsuch wanted the Court to take up in Perry isn't nearly as complicated as commentary on the case made out to be, though it admittedly isn't very interesting either.  First, the MSPB hears appeals from certain federal employment decisions under 5 U.S.C. 7701, including terminations or reductions in pay.  Under that grant of administrative appellate jurisdiction, it decides questions of civil-service law.  The MSPB's decisions in 7701 appeals are reviewable by petition in the Federal Circuit under 5 U.S.C. 7703(b)(1)(A). That much is undisputed.

Next, under 5 U.S.C. 7702, the MSPB also decides appeals in "case[s]," see 7702(a)(1), (b)(4), and (f), in which an employee "has been affected by an action," otherwise appealable to the MSPB under 7701, and "alleges that a basis for the action" was a violation of certain employment-discrimination statutes.  In a 7702 appeal, the MSPB is required to "decide both the issue of discrimination and the appealable action" as it would in a 7701 appeal.  (All those quotes are from 7702(a)(1).)

No one disputes, not even Gorsuch, really, that a federal employee can raise both civil-service issues and employment-discrimination issues in a single 7702 appeal, not just employment-discrimination. The three Federal Circuit dissenters whose position he rescued from early-80s obscurity wrote that "[i]t is uncontested that Congress envisioned that the MSPB render a single decision in a 'mixed' case."  And, indeed 7702 describes the product of such double-barreled appeals, in 7702(a)(3), as a singular "decision" and "judicially reviewable action."   

Justice Gorsuch, for his part, while not explicitly admitting the existence of these non-bifurcated MSPB proceedings, could at most only suggest that not every 7702 appeal or "mixed case" involves a mix of discrimination and civil-service issues, because some may only involve appealable employment actions, e.g., terminations, that solely raised employment-discrimination issues.  Entirely true as a matter of what 7702 says and means in practice, but equally irrelevant.  The question Gorsuch wanted to decide is whether the unitary 7702 appeals that do present a mix of civil-service and discrimination issues bifurcate on judicial review into two separate cases that land in two different courts.

Finally, section 7703(b)(1)(A) generally grants the Federal Circuit jurisdiction to review the MSPB's "final order[s] or final decision[s]," "[e]xcept as provided in paragraph (2) of this subsection," i.e., 7703(b)(2).  And what 7703(b)(2) says in relevant part is this:  "Cases of discrimination subject to the provisions of section 7702 of this title shall be filed under [enumerated provisions of employment-discrimination law], as applicable."

Now, what are these "cases of discrimination subject to the provisions of section 7702"?  Well, in the view of the Federal Circuit, ten other circuits, and the majority in Perry, they are quite simply the "cases" that the MSPB hears under section 7702.  Section 7702 talks about the MSPB deciding certain "cases," and describes those cases as ones involving appealable employment actions, an alleged basis for which is discrimination.  Again, not necessarily the only basis, but a basis, and the MSPB is required in such a "case" to "decide both the issue of discrimination and the appealable action" and render a unitary "decision" that "shall be a judicially reviewable action."  

So, the Federal Circuit argued rather fulsomely, a 7702 "case," whether containing only employment-discrimination issues or employment-discrimination issues and other issues, is a unitary case before the MSPB, and remains a unitary "case" and "judicially reviewable action" in district court, to which such "cases" are routed.  Perhaps it's a little odd to talk about a "case of discrimination" when one means a case presenting, among other things, discrimination claims, but that's just what 7702 says the "cases" that are "subject to the provisions of 7702" are.

Whatever made Justice Gorsuch think that this rather literal, even somewhat crabbed interpretation of 7702 and 7703 is not only wrong, but a "seriously atextual," willful "judicial tinkering" with the statute?  And what could have led such a self-styled textualist to believe that "cases of discrimination subject to the provisions of 7702" actually only means what 7702 calls "the issue of discrimination" that the MSPB decides in a 7702 "case," leaving the other half of that 7702 "case" or "judicially reviewable action" for review in the Federal Circuit?  

I have no idea.  Again, Gorsuch never says a word about the lower courts' plain-language interpretation of 7703, their harping on 7702's distinction between a discrimination "issue" and a larger "case" concluding in a "decision"/"reviewable action" on all issues before the MSPB, their argument that 7702 defines 7703(b)(2)'s reference to "cases of discrimination subject to . . . 7702," or any of the other textual points in the lower courts' favor.  He quotes the relevant language in 7703(b)(2), not pausing for a second over what it means; misleadingly paraphrases 7702 in three quotation-free sentences as a statute about pure "cases of discrimination," glossing completely over all the awkward language in 7702 about unitary cases, decisions, and judicially reviewable actions with embedded discrimination issues; and finally announces "the statutory scheme is plain": civil service disputes go to the Federal Circuit, and "discrimination cases go to district court."  That just doesn't cut it.

As far as I can tell, the one textual argument Gorsuch's got to support all his textualist Sturm und Drang is the fair enough point that 7703(b)(2) says that "cases of discrimination" are supposed to be "filed under" employment-discrimination statutes.  (Most of Gorsuch's arguments, ironically, are pragmatic or purposivist ones about the difficulties, obscurities and costs of district-court review of civil-service claims, which it's fair to say Congress failed to fully address.)  How do you file an appeal of the MSPB's decision on a civil-service issue under an employment-discrimination statute?  You can't, it would seem, which suggests, perhaps a little paradoxically, that 7703(b)(2) "cases of discrimination subject to . . . 7702" only involve the discrimination "issues" embedded within 7702's "cases."  

The idea that 7702 discrimination "issues" embedded in mixed 7702 "cases" blossom under 7703(b)(2) into "cases of discrimination subject to the provisions of 7702," while the other half of the MSPB's "decision" in the mixed 7702 "case" blossoms under 7703(b)(1)(A) into a freestanding "final order or final decision" of its own reviewable in the Federal Circuit; that the 7702 "case" and MSPB "decision" themselves undergo a process of 7703-induced fission; and that all this is made unarguably clear by 7703(b)(2)'s directive that "cases of discrimination subject to . . . 7702" are to be filed under discrimination statutes, is certainly inventive, if entirely unexpressed in Justice Gorsuch's opinion, which again fails to quote 7702 once or acknowledge the reality of multi-issue 7702 cases.  (A remarkable omission, given that 7703(b)(2) refers you to 7702 to see what the "cases of discrimination" it's talking about are.)  And to be fair, it's not a completely unreasonable view; the Federal Circuit dissenters ably argued the statute could be read that way.  But as far as textual points about the meaning of "cases of discrimination subject to . . . 7702" go, Justice Gorsuch has one decent one to the Federal Circuit's half-dozen, plus its rather sensible ancillary concern about bifurcation impairing judicial economy that he lampoons.  

Besides, even if the consensus reading of 7703(b)(2) didn't have vastly more text on its side than Justice Gorsuch has on his, Justice Gorsuch's one decent textual point is hardly compelling upon careful reflection.  One could quite reasonably, for example, write a statute providing that "cases of discrimination shall be filed under" certain federal discrimination laws in district court, even if another statute allowed plaintiffs to bring pendent state-law claims with their discrimination claims.  One wouldn't suppose that a statute like that meant that pendent state-law claims weren't part of the "case of discrimination" that belonged in district court.  Likewise, the fact that 7703(b)(2) calls for filing under discrimination statutes can't be fairly read to mandate—certainly not unambiguously so—that the entirety of the "case of discrimination subject to . . . 7702" must be filed under those statutes.

At oral argument, the government and Christopher Landau, Perry's counsel, both stood up to Justice Gorsuch's novel reading of 7703(b)(2).  There, Gorsuch was forced to confront the government's well-worn point that 7702 defines a case of discrimination subject to 7702 "as a mixed case that includes both discrimination and other components."  To this, he had a curious response.  

This argument, he said, "raises the question what 'subject to' means, right?"  That's true enough; the basis for saying that 7703(b)(2) "cases of discrimination" are the "cases" described in 7702 is the phrase "subject to the provisions of 7702."  But how many ways are there to read "subject to" in that sentence?  Cases of discrimination subject to the provisions of section 7702 just means, can only mean, cases of discrimination governed by section 7702, which is to say the cases of discrimination described by 7702.  The point of a reference to 7702 is to distinguish 7702 "cases of discrimination," the ones 7702 governs, from all the other discrimination cases in the world.  Justice Gorsuch, however, saw a different possible reading, and at that point things got confusing.  I'll just let Justice Gorsuch and the assistant to the Solicitor General take it from here:

JUSTICE GORSUCH: .  . . And -- and you're equating “subject to” with “meeting the test of.”  But “subject to” can also mean subject to.  It can be tested under.  Not that it meets the test, but it can be tested under, right?  That's often how Congress uses that phrase. 

MR. FLETCHER: I -- I understand.  I -- I may not be grasping in that sense.  I understand that you might use it to say this is true, subject to some other provision that might qualify it. 

JUSTICE GORSUCH: Right. 

MR. FLETCHER: I don't think that's how Congress used it here.

JUSTICE GORSUCH: It may or may not qualify, not that it does qualify. 

MR. FLETCHER: I guess -- 

JUSTICE GORSUCH: Often, it's used in that sense, right? 

MR. FLETCHER: I -- I'm not sure that it -- I -- I can agree with that. 

JUSTICE GORSUCH: Really? Why not? You just gave me a good example.

MR. FLETCHER: Then I think maybe I'm misunderstanding the question.  I -- I agree sometimes Congress says the rule is you go to district court, subject to, in this case, you can go to some other tribunal.  So it's describing an exception.

I think that that's not what it's doing here. Here, it's using that as a description --

JUSTICE GORSUCH: Do you have any authority for that proposition?

MR. FLETCHER: Kloeckner [a unanimous 2012 opinion of the Court rejecting Gorsuch's interpretation in either holding or dictum, though the Perry majority thought it holding], which I think says, you know, this is a--

JUSTICE GORSUCH: Besides Kloeckner. Anything else?

JUSTICE KAGAN [the author of Kloeckner]: Well, Kloeckner certainly says it, but beyond Kloeckner, I mean, merits cases that -- that have been -- have been going to district court for years prior to Kloeckner; isn't that right?

As somebody who once almost wrote a whole article on whether the word "under" in a statute meant "subject to," "by reason of the authority of," or "under the heading of" (the subject, in one instance, of a classic circuit split between then-Judge Ginsburg and Judge Reinhardt), I feel I should be able to understand what Justice Gorsuch is talking about here.  But neither I, nor seemingly Assistant Fletcher, nor anyone I know, can quite figure out what alternative sense of "subject to" he's talking about or how it could fit in this statute.  If I understand him, and it's a big if, "subject to the provisions of section 7702" isn't descriptive; rather, it means something like "if 7702 allows," so that the whole first sentence of 7703(b)(2) should be parsed, "Cases of discrimination, if allowed by 7702, shall be filed under the following discrimination statutes."  That seems to me to be a non-starter for a few reasons.  

First, and it's a rather nitpicky but both intuitive and grammatically correct objection, 7703(b)(2) doesn't contain commas before and after the "subject to" clause; it reads "Cases of discrimination subject to the provisions of section 7702 of this title shall be filed," not "Cases of discrimination, subject to . . . 7702 of this title, shall be filed . . . ."  Now, if "subject to" were an exception to "shall be filed," as Gorsuch seemed to suggest, it would technically be an adverbial phrase modifying "shall be filed."   If it means what I think it means, and what all the courts to interpret it have thought it meant, it's an adjectival phrase that modifies "cases of discrimination."  

If "subject to" is an adjectival phrase modifying "cases of discrimination," as I claim, the lack of commas makes sense, like saying "the bushes under the tree died" instead of "the bushes, under the tree, died."  Adjectival phrases following the nouns or noun-phrases they modify aren't set off by commas unless they're non-restrictive.  Adverbial phrases immediately following nouns or noun-phrases, though, are set off by commas, or they'd be mistaken for restrictive adjectival phrases.  

For example, "Asher, with some exceptions, is usually readable" needs commas because "with some exceptions" is actually modifying "is" in that sentence, not "Asher."  Consider a closer example: "Eastern European nations subject to Soviet control trade with the United States" means that Eastern European nations that are subject to Soviet control do such trade, but "Eastern European nations, subject to Soviet control, trade with the United States" means "Eastern European nations trade with the United States, subject to what's allowed by Soviet control."  So if 7703(b)(2) meant what Gorsuch suggests, it would have read "Cases of discrimination, subject to . . . 7702, shall be filed . . . ."  To claim it means what he says is to claim that 7703(b)(2) as written is a scrivener's error. 

Second, it's actually really hard to find a provision of 7702 that would carve out some exception to 7703(b)(2)'s mandate that "cases of discrimination . . . shall be filed" under discrimination statutes in district court.  Gorsuch, recall, seems to read 7703(b)(2) to mean that cases of discrimination, subject to 7702 allowing it, shall be filed in district court under discrimination statutes.  But 7702 is all about what the MSPB does; it does nothing to stop anyone from filing a "case of discrimination" in district court.  

The one relevant thing in 7702 to Gorsuch's proposed interpretation are several timing provisions about when the MSPB decision in a mixed case is deemed a "judicially reviewable action," but the problem with reading "subject to the provisions of section 7702" as a carve-out for untimeliness given 7702's rules about reviewability accrual is that 7703(b)(2)—you guessed it—specifically invokes those rules elsewhere.  To wit, 7703(b)(2)'s last sentence reads, "Notwithstanding any other provision of law, any such case filed under any such section must be filed within 30 days after the date the individual filing the case received notice of the judicially reviewable action under such section 7702."  So that's not what "subject to . . . 7702" can be all about.

Third, even if Gorsuch were right, we'd still have the following problem.  The Federal Circuit is granted jurisdiction over MSPB decisions in 7703(b)(1), less the carve-out for district-court jurisdiction in 7703(b)(2); that carve-out covers "cases of discrimination."  Bracketing "subject to 7702," cases of discrimination" still aren't any old "case of discrimination" under the enumerated federal laws, but some subset of MSPB orders.  Now, if one wanted to figure out what a case of discrimination that also involved review of an MSPB decision looked like, one would naturally be led to 7702, and there one would find that the MSPB renders unitary decisions, in "cases" presenting (exclusively or non-exclusively) discrimination "issues," that are treated as unitary "judicially reviewable actions," a phrase 7703(b)(2) picks up.  How, then, could one conclude that the 7702 "decision"/"judicially reviewable action" on all issues turns into a judicially reviewable action on discrimination issues only in 7703?  It's a real stretch.  

In sum, you can argue the statute unambiguously means what everyone's always said it clearly means except for Justice Gorsuch and the three Federal Circuit dissenters; you can possibly say it's ambiguous and opt for Gorsuch's reading for purposivist reasons of unitary Federal Circuit doctrine on civil-services law, as the Federal Circuit dissenters did.  Justice Gorsuch's position that the statute is plain his way, however, is simply unarguable, and if it can be argued, it's yet to be done because Justice Gorsuch has never attempted to argue it.  Instead, the comments I quoted above at oral argument were his only attempt to deal with the text that supports the consensus view, and an implausible attempt at that; his dissent either omits that text (7702) completely, or in the case of "subject to . . . 7702," doesn't attempt to explain how it's consistent with his interpretation.

That much is vexing enough.  But what I find really frustrating is that even Justice Gorsuch patently saw at oral argument that the statute is ambiguous at best.  Then, he said that "subject to" could bear multiple meanings, and that one permissible meaning of "subject to," "meeting the test of" (though I would proffer "governed by" or "described in"), supports the overwhelming consensus view.  That being so, I can't understand why he would go to such lengths to deride this confessedly permissible reading as a faithless judicial "tweak," and why he didn't at least explain, in his dissent, why he thought it wrong.   

***
Inspired by Aaron Nielson's inclusion of lesser-known Tom Petty songs in his last edition of D.C. Circuit Review, I've included this chronological playlist of fifty-one lesser-known '60s Beach Boys songs in this final edition of OT 2016 Statutory Term in Review for my dear readers.  I've completely skipped their most famous album, Pet Sounds (which I heretically don't like very much anyway), most of the more recognizable hits, and included a bunch of unreleased songs and alternate versions, though even people who don't know the Beach Boys very well will probably recognize a few songs here.  (I've also included what's been described as a proto-shoegaze live recording of "Surfer Girl.")  It's a long list, but I particularly recommend, in no particular order, "Breakaway," "Busy Doin' Nothin,'" "Passing By," "Your Summer Dream," "Little Pad," all the "Can't Wait Too Long" recordings, especially the first two, "Cabin Essence," the pre-Brian-Wilson-nervous-breakdown recording of "Wind Chimes" and the distinctly post-Brian-Wilson-nervous-breakdown recording of "Wind Chimes," "You're So Good to Me," "Please Let Me Wonder," "Don't Hurt My Little Sister," "Why Do Fools Fall in Love," "The Little Girl I Once Knew," and "Let Him Run Wild."