The subject of the following series of posts will again be textualism, and what I intend to again persistently asseverate, to borrow a phrase from a passage of Henry James's dialogue (the character saying it is supposed to be rather simple!), is that textualism is a less constraining methodology than some of its advocates claim, but a more constraining one than some of its false friends want it to be. The particular textualist problem I want to address here is statutory definitions that seem to make a peculiar meaning out of uses of the defined terms to which they apply.
This problem is the subject of the statutory blockbuster (I speak unironically) of the upcoming Supreme Court term, Digital Realty Trust, Inc. v. Somers, as it was of the Court's decision in Bond three years ago, as it was in part, in a fashion that escaped almost everyone's attention, of the Court's decision one year ago in Puerto Rico v. Franklin California Tax-Free Trust. I will propose a middle course between the definitional nihilism that insists a definition is a definition no matter what, on the one hand, and the definitional immolation of Bond on the other—the course that Justice Thomas steered for the Court in Franklin California Tax-Free Trust and that Justice Scalia steered for the Court in Utility Air.
That middle course, in sum, is this. Assuming a typical definitional clause, a statute can never be ambiguous on whether a statutory definition applies to that statute's use of the defined term that definition defines. So long as a statute says where its definition applies—"in this section," "in this chapter," "in this Act"—the definition unambiguously applies where the statute says it does. "In this section/chapter/Act, the following definitions shall apply" is not ambiguous language, and such language is the only language relevant to deciding whether a statute's definition textually applies to a use of a defined term. Uses of the defined term that don't seem to match the definition only tend to show that Congress may have made a scrivener's error in using a term elsewhere defined.
However, a statute's application of a definition to a particular use of a defined term may very well be a correctible scrivener's error. Scrivener's errors of this sort happen often; they happen when drafters use a term and forget how that term was previously defined. The error here, technically, is neglecting to use a different, non-defined term, or neglecting to revise the definitional clause to except certain sections of a bill from its application. Particularly in longer statutes, and particularly in the instance of terms that have non-technical meanings and come easily to mind, it's quite unsurprising that drafters forget what a definitional section says and use terms in ways that clash with their statutory definitions.
But while we shouldn't be surprised that these errors happen, before we correct them we shouldn't demand anything less than the certainty we demand to correct other kinds of scrivener's errors. Definitions that don't fit uses of defined terms, again, are not a species of ambiguity; there is nothing ambiguous about saying that a definition shall apply in this section of this statute. They are accidents of drafting that permit courts to depart from the meaning of otherwise clear texts, and before courts do so, they must be certain that an accident occurred.
Finally, because the two options in a case of possible definitional mismatch are either following the text's plain meaning, or correcting a plain error, cases of definitional mismatch are not cases where Chevron has any role to play, or where, for that matter, any other ambiguity-resolving canon has any role to play, including clear-statement rules or constitutional avoidance. Statutes are never ambiguous on whether their definitions are mismatched; the only "ambiguity" to speak of in such cases is uncertainty about whether Congress intended to write what it wrote, not ambiguity in the meaning of what it wrote. But under current doctrine, that sort of ambiguity resolves in favor of assuming Congress did intend to write what it wrote; the only ground for correcting drafting error is certainty that one happened.
Further, uncertainty about whether Congress intended to enact the text it wrote or some other variant is particularly not a ground for Chevron deference. Chevron assumes that Congress enacts text that is indeterminate on some question and leaves that question open for further policy choice, thereby delegating that question to an agency to decide (not interpret). Ambiguities about what text Congress meant to write are not delegations to make interstitial law, but rather ambiguities about the content of the determinate policy choice Congress did make.
1. The definitional problem in Digital Realty.
There is a section buried in
the Dodd-Frank Act that provides "securities whistleblower[s]" a small but potent suite of "incentives and protection[s]," quoting the section's title. The question in Digital Realty is whether that section's definition of "whistleblower" applies to the section's whistleblower-protection's use of the word "whistleblower." Though section 922 of the Dodd-Frank Act takes a while explaining itself, what it gives securities whistleblowers is fairly simple.
First, if a securities whistleblower gives the SEC, and the SEC alone, the goods on someone—as the statute puts it, if "1 or more whistleblowers . . . voluntarily provided original information to the Commission that led to the successful enforcement of [a] covered judicial or administrative action"—he will get an award of between ten to thirty percent of the monetary sanctions the SEC recovers. Section 922 proceeds to lay out the details of this award scheme, and the money to pay for it, in seven subsections, (b) through (g) and (i). Subsection (j), the last subsection of the statute, is a grant of rulemaking authority that doesn't mention "whistleblowers," subsection (a) contains the section's definitions, to which we'll get, and subsection (h) is the section's eponymous "protection," an unusually generous anti-retaliation and confidentiality provision at the heart of Digital Realty Trust.
Subsection (h), entitled "Protection of whistleblowers," does a few things. First, it prohibits three types of retaliation against "a whistleblower." Employers may not retaliate against whistleblowers for any "lawful act done by the whistleblower" in providing the SEC information, assisting or testifying in an SEC investigation, or for "making disclosures that are required or protected under the
Sarbanes-Oxley Act of 2002 [cross-references omitted] and any
other law, rule, or regulation subject to the jurisdiction of the
Commission." Sarbanes-Oxley, crucially, protects disclosures of violations of securities law to non-SEC federal agencies, Congress, or anyone with supervisory authority over the employee. Does that mean that 922(h) will offer retaliation protections to anyone who discloses violations of securities law to internal auditors? Put a pin in that and read on.
The balance of subsection (h) does three things. First, it provides victims of the proscribed sorts of anti-whistleblower retaliation with a generous cause of action, with a six-year statute of limitations and a three-year discovery rule in case of late discoveries, double back pay, reinstatement, and fee-shifting. Second, it prohibits the SEC from disclosing information that could be "reasonably . . . expected to reveal the identity of a whistleblower," though certain inter- and intra-governmental disclosures are permitted provided that the recipients of the disclosures maintain the same level of confidentiality. Third, the last sentence of subsection (h) is a sort of Ninth Amendment for "whistleblower[s]," preserving all rights they have under all other sources of law.
I've belabored the various things the statute does for whistleblowers for a reason, but long before I say what that reason is, I want to discuss the definition of "whistleblowers." And before I say what the definition is, I want to say why the definition is needed. Though this might not be immediately obvious, the repeated usage of "whistleblower" in this statute is quite eccentric statutory drafting and wouldn't work at all without a definition. The word whistleblower, in an ordinary-language sense, is a non-technical term of extraordinary vagueness, encompassing a vast array of types of whistleblowing on a vast array of subjects to a vast array of people; no competent statutory drafter would use the word without giving it a technical, non-ordinary definition.**
** The Solicitor General, arguing that "whistleblower" keeps its ordinary meaning in subparagraph (h)(1)(A) of section 922, claims that "numerous federal statutes use 'whistleblower' in the ordinary sense." Not so. His sole citations for that claim are: (1) a findings and purpose section of the Whistleblower Protection Act of 1989 that uses the word twice, and in the first instance defines whistleblowers as "those individuals who make disclosures described in such section 2302(b)(8)"; (2) the title of an operative section of the Act, section 5; (3) section 4 of the Act, which never uses the word and seems to have been cited by mistake. Indeed, it's rather telling that even the Whistleblower Protection Act never uses the word "whistleblower" in the text of any of its operative sections.
As for other federal statutes, some thirty-three statutes (I've checked) use the word "whistleblower." Of the statutes that really refer to whistleblowers in some operative sense (rather than generically referring to "whistleblower protections"), virtually all of them define whistleblowers either formally (and almost always in terms of disclosures to a particular agency) or informally, by describing the whistleblowers to be protected with great specificity. I am aware of just one exception to this rule, in the Inspector General Act of 1978, and even that one's debatable, as the provision strongly implies that the whistleblowers Congress is talking about are whistleblowers who talk to Inspectors General. More typical of congressional drafters' sense of the propriety of using "whistleblower" sans definition in statutes is the Internal Revenue Code's reference to "any provision of federal law (popularly known as whistleblower protection provisions)" that affords certain protections which the Code proceeds to define in more technical terms. [End of footnote.]
To be sure, perhaps you could get by without a definition if you were very clear on what sorts of whistleblowing a whistleblower would get an award for, and what sorts of whistleblowing he'd be protected from retaliation against, and what a whistleblower had to say to entitle himself to confidentiality. But then, if the meaning of "whistleblower" were to be derived exclusively from context, you wouldn't have to use "whistleblower," would you? Instead you'd say that a "person" would get an award for providing certain information to the SEC, and an "employee" would be protected from retaliation for disclosing certain information to certain people, and a "person" would have his identity kept confidential if he disclosed this or that—not that a "whistleblower" would be protected if he blew the whistle in very specific ways.
That would be a somewhat harder statute to draft, though, and in fact a close reading of the statute reveals that as presently drafted it would collapse without a definition of "whistleblower." The awards subsection doesn't say quite what a whistleblower provides the SEC—information that leads to a successful enforcement, yes, but about what?—the retaliation subsection doesn't even say that much about what information the whistleblower has to give the SEC, just that it's got to be "information [provided] in accordance with this section," and the confidentiality subsection doesn't say a word about what earns a "whistleblower" confidentiality. So the statute truly hinges upon the definition of "whistleblower" in all operative respects.
Unsurprisingly, given the SEC-focus of most of the operative provisions in the statute, it turns out that section 922's definition of "whistleblower" is exclusively about SEC, securities-law whistleblowing. A "'whistleblower' means any individual who provides, or 2 or more individuals acting jointly who
provide, information relating to a violation of the securities laws to
the Commission, in a manner established, by rule or regulation, by the
Commission." That clears up what sort of information the whistleblowers have to provide: information of securities-law violations. Where does this definition apply? Just in this section, actually, in the context of the small handful of incentives and protections it provides: "In this section the following definitions shall apply." And so it turns out that only SEC, securities-law whistleblowers get the benefit of section 922's generous retaliation provision, of its awards, and of its confidentiality protections.
But wait, you ask: doesn't this definition make one third of the anti-retaliation provision meaningless? Weren't "whistleblowers" to be protected from retaliation against Sarbanes-Oxley-protected disclosures, which included disclosures to mere internal auditors? Could Congress really have meant that only SEC whistleblowers would be protected from whistleblowing to auditors or other agencies? And if it had, wouldn't that make that part of the anti-retaliation provision surplusage? After all, Congress had already offered "whistleblowers" protection from retaliation against SEC whistleblowing, so what work does it do to protect SEC whistleblowers from retaliation against internal reporting? Is there any SEC whistlebower who would be fired because of his internal report and not because of his more damaging SEC whistleblowing? And given all these concerns, doesn't it seem as if section 922's SEC-specific definition of "whistleblower" can't apply to 992(h)(1)(A)'s prohibition of retaliation against whistleblowers who blow internal whistles? That's the question presented by Digital Realty Trust.
2. The scope of the definition in Digital Realty (and most any definition) is unambiguous.
All fair questions, though all, as we'll see, with answers, but for now I want to ask a different question: do these questions actually make whether 922's whistleblower definition applies to 922(h)(1)(A) ambiguous? Now, a small group of very smart people, including Judge Kavanaugh, have begun to argue that this question should have no bearing on interpretation; if legislative history, policy concerns, or even inferences of intent from surplusage are relevant to interpretation, they should be relevant even when a statute's text is clear, but if they're not so relevant, we shouldn't be bothering with them even when a statute's text is ambiguous. I think this is all wrong and quite radical, but whether these people are right or not, they're not describing the law as it exists, as they of course readily admit. Under current law, whether 922's definition's application to 922(h)(1)(A) is ambiguous all but decides the case, in the following four ways.
First, whether 922's definition's application to 922(h)(1)(A) is ambiguous determines, under current law, whether the SEC's interpretation of "whistleblower" in the anti-retaliation provision to mean anyone who does any of the acts it protects will receive Chevron deference.
Second, whether the definition's application to 922(h)(1)(A) is ambiguous determines whether the surplusage argument I've sketched does any work; if a statute unambiguously contains surpulsage, arguments against surplusage are unavailing, but if it's ambiguous whether it does or not, courts may be influenced by anti-surplusage presumptions to avoid reading the statute to contain surplusage.
Third, whether the definition's application is ambiguous determines whether policy concerns, or legislative history, do any work; in our half- or pseudo-textualist world, if the statute's ambiguous, legislative history can be used to decide what Congress meant, but if it's not, legislative history can't be used.
And finally, if 922(h)(1)(A) unambiguously incorporates section 922's definition of "whistleblower," the non-SEC whistleblower in Digital Realty Trust suing his employer under Dodd-Frank for an internal disclosure is going to lose unless he can show that the definition's application 922(h)(1)(A) is (a) unmistakably a drafting error or (b) absurd (and even that probably overstates things—he probably has to show that it's an unmistakable drafting error because it's absurd).
So is it ambiguous whether 922's definition of "whistleblower" applies to the use of "whistleblower" in 922(h)(1)(A)'s retaliation provision? No, not at all, and in fact, the only sort of question about whether a definition applies to a use of its defined term is whether the definition's application to that term is a scrivener's error. An "ambiguity" about whether a definition applies to a use of a defined term is really just a doubt about whether the drafter accidentally forgot to except that use from the scope of the definition. And because that doubt is a doubt about whether there's a drafting error—the existence of which doctrine (correctly, in my view) requires certainty before courts can correct it—such "ambiguities" always must be resolved in favor of applying the definition. The only definitions that don't apply to uses of the terms they define, on this view, are the ones that were undoubtedly applied to those uses in error.
Why am I so sure of all this? Consider section 922's definition of "whistleblower" as an example. As Judge Dennis Jacobs correctly points out in his dissent on this question, the relevant language to whether that definition applies to the anti-retaliation provision in 922(h)(1)(A) is not the anti-retaliation provision, but what the definition itself says about its scope. And what it says is that "[i]n this section the following definitions shall apply." Among the definitions that follow is the whistleblower definition, and 922(h)(1)(A) is in "this section," section 922.
What
this unambiguously means is that the meaning of "whistleblower" in
922(h)(1)(A) is that provided by the whistleblower definition in
922(a)(6). There is no alternate reading. "In this section the following definitions shall apply" can't be read to mean "in this section the following definitions may apply," or, "in this section less subsection (h)(1)(A), the following definitions shall apply." These are not meanings that any reasonable speaker of English can give to "shall" or "in this section." They are not, crucially, things that anyone would ever intentionally use the sentence "in this section the following definitions shall apply" to say—a critical test of ambiguity. Anyone trying to communicate the message that the whistleblower definition would apply throughout section 922 less section 922(h)(1)(A) would say that. No one who wanted "whistleblower" to mean something different in 922(h)(1)(A) and realized that she had written that the whistleblower definition "shall apply" "in this section" would hope for courts to figure out what she wanted from the fact that she protected non-SEC whistleblowing from retaliation in (h)(1)(A)(iii). Rather, she would correct the definition.
The definition's statement of its scope is not, to be clear, merely unambiguous in a literal or semantic sense; if that were all, that would not exhaust interpretation. It's also unambiguous in the sense that no one could intentionally use the statement to imply something narrower than what it literally means, and unambiguous in the further sense that no one could use the statement to mean something narrower on the mistaken belief that it has a narrower meaning.
While we can imagine, for example, people using phrases like "convicted in any court" to impliedly mean any court in the United States, or "Pick up every object on your floor" to impliedly mean something more like "pick up every object but the furniture," given that people use "any" and "every" all the time in reference to some impliedly limited domain, there is no similar phenomenon of people referring to "this section" and implicitly meaning "this section less its most important provision." And while Congress will sometimes use a word in a way that suggests it might be mistaken about its meaning and would have used a different word absent its mistake (which I have contended is a form of ambiguity), like the time it gave "defendants" special protections against impeachment in the Rules of Evidence and seemed to mistakenly believe that "defendants" meant criminal defendants, there is no conceivable mix-up of that sort about the meaning of "this section" or "shall apply."
Again, a good litmus test for ambiguity that embraces far more than semantic ambiguity is to ask whether a person trying to say something could intentionally use the language at issue to say it. If they couldn't—if the only way you can imagine someone using the language at issue to say something is their accidentally writing the wrong words, or intentionally writing what they wrote, changing their mind about what they wanted to say, and forgetting to correct what they wrote—then the language is unambiguous and the only way to escape its meaning, if you believe Congress meant to convey that point, is to invoke drafting error. And here, the only way we can imagine a drafter using "in this section, the following definitions shall apply" to mean that the whistleblower definition wouldn't apply to the core of "this section" is a sort of drafting error, probably the sort where Congress, after writing the definition, used "whistleblower" more broadly in the anti-retaliation provision and forgot that the definition existed.
3. The Court's confusion of ambiguous intentions with ambiguous meaning in Bond.
The Court had a very different view of these matters in Bond. There, the Court thought it ambiguous whether the extraordinarily broad definition of "chemical weapon" in the Chemical Weapons Convention Implementation Act, which included any toxic chemical, applied to the operative provision of that act. Claiming that "dissonance" between the ordinary meaning of "chemical weapon" and its statutory definition made it ambiguous whether the term's ordinary meaning or its definition controlled, the Court resolved the ambiguity, on the basis of ambiguity-resolving federalism canons, by functionally axing the definition from the entire statute.
To be precise on how radically sweeping this judicial repeal of the act's definition of its key term was, a point which I don't think has ever been fully appreciated, the Court technically held that the statute's definition of chemical weapons did not apply to section 229 of the statute, which prohibited the use, possession, ownership, or production of chemical weapons; in its place, the Court interpolated an ordinary-meaning definition. Now, there are only six other sections in the statute, and all of their usages of chemical weapon are completely parasitic on section 229's, section 229 being the only truly operative provision in the statute. Going through those sections:
Section 229A is a penalties section for violating section 229 that doesn't mention chemical weapons.
Section 229B concerns criminal forfeiture of chemical weapons in the event of a conviction under section 229 for owning or possessing them; if the definition doesn't apply to section 229, it can't apply to section 229B.
Section 229C is a savings clause for pepper sprays that would be completely unnecessary if not for the statute's broad definition of chemical weapon; it also doesn't mention chemical weapons.
Section 229D, also not mentioning chemical weapons, gives the United States a cause of action to seek an injunction against the conduct prohibited in section 229; it is completely parasitic on section 229's use of "chemical weapon" and the meaning it has there.
Section 229E says that the Attorney General can ask the Department of Defense for assistance in enforcing section 229 "in an emergency situation involving a chemical weapon." The predicate for that authority is enforcing section 229, so it too is completely parasitic on section 229's use of chemical weapon; the Attorney General couldn't seek assistance in an emergency involving a chemical weapon that satisfied the statute's definition but fell outside the Court's reading of chemical weapon in section 229, or there would be no section 229 enforcement to assist.
Finally, section 229F is the statute's definitions section. It uses "chemical weapon" (outside of its definition of "chemical weapon") only in defining "purposes not prohibited under this chapter," a phrase that's a component part of and carve-out from 229F's definition of "chemical weapon."
The following, then, is a non-hyperbolic statement; after the Court's ostensibly interpretive holding in Bond that 229F's definition of chemical weapon doesn't apply to section 229, there is no use of chemical weapon in the entire statute to which it does apply. It is simply as if Congress had never enacted the definition at all.
Now, was there some sort of ambiguity as to whether the definition of chemical weapon in the Chemical Weapons Convention Implementation Act actually applied to the Chemical Weapons Convention Implementation Act? The question is like asking whether the term "endangered species" in the Endangered Species Act means what Congress said it did in the ESA's definitional section, or some other preferred meaning of your imagination. The Chemical Weapons Convention Implementation Act is codified in chapter 11B of title 18. Section 229F begins, "In this chapter: The term 'chemical weapon' means the following . . . ." Can "[i]n this chapter: The term 'chemical weapon' means the following" mean "In this chapter: The term 'chemical weapon' doesn't mean the following, but instead means whatever it means ordinarily"? Not so much.
What Chief Justice Roberts described as an ambiguity of statutory meaning is really an ambiguity in congressional intention. And while there was no ambiguity of the former variety, the ambiguity of the latter variety was very real; the Court's mistake wasn't in finding some kind of ambiguity at all, but in confusing unactionable doubt over whether Congress really meant to write what it said with doubt as to the meaning of what Congress did say. As Heather Gerken, hardly an unforgiving textualist, has written, "[t]he statute's language was crystalline"; the Court "thought the statute was ambiguous" because "it couldn't bring itself to believe that Congress had, in fact, passed a statute broad enough to reach Bond's conduct."
Did Congress really make it a federal crime to use (with exceptions for peaceful purposes) any "toxic chemical" capable of causing permanent harm or temporary incapacitation to human or animal life? Absolutely. Did Congress really want or consciously intend to make any use of a toxic chemical a violation of the Chemical Weapons Convention Implementation Act? Hard to say, and perhaps hard to believe; most likely, Congress implemented the titular Chemical Weapons Convention by copying its definition of chemical weapon without entire awareness of its breadth or the consequences. And would Congress have really wanted to make it a violation of the Chemical Weapons Act to smear mild-skin-burn-inducing chemicals on someone's mailbox, were the question put to them? Very possibly not. But these uncertainties about what Congress wanted to do, or what it would have wanted to do had it thought harder about a court's present problem, aren't ambiguities—not for a textualist anyway. They only matter, really, to a sort of purposivist that's no longer supposed to exist.
Two final comments on Bond. First, what of Roberts's argument that it isn't "unusual to consider the ordinary meaning of a defined term, particularly when there is dissonance between that ordinary meaning and the reach of the definition"? Is there nothing to that? As Justice Scalia said in his separate concurrence, it is most unusual to consider a defined term's ordinary meaning for the Court's purposes; prior to Bond the Court had only considered the ordinary meaning of defined terms to shed light on the meaning of ambiguous definitions, not to delete them.
But more fundamentally, the argument is nonsense. To say that there's dissonance between the ordinary meaning of chemical weapon and what the statute says it "means," and that it's therefore ambiguous if "chemical weapon" in that statute means what the statute says it does, is like saying that a child's answer on his homework that "3 X 7 = 37" is ambiguous because there's profound dissonance between "37" and the ordinary meaning of "3 X 7." One could talk of scrivener's error in some similar cases; if the child wrote that "3 X 7 = 10," you might wonder if he meant to write a plus sign, or maybe even if he thought the multiplication sign is the addition sign. But the meaning of the equation would still be unambiguous and the only way you could dissolve the dissonance between "3 X 7" = 10 would be to read the use of the multiplication symbol as an accident or mistake.
Similarly, imagine Congress defined a vegetable, in the school-lunch statute, to include any food or beverage containing a food syrup derived from a vegetable—e.g., a soda containing corn syrup. The dissonance between what vegetable means in any ordinary sense and how Congress defined it would be profound, much more so than the dissonance that worried the Court in Bond, and the policy, at least to my mind, would be vastly more offensive. But would there be any ambiguity about whether "vegetables" in the statute included soda? And if a parent sued a school for providing soda-vegetables as vegetables on the theory that sodas weren't statutory vegetables because they weren't ordinary-language vegetables, the "dissonant" definition notwithstanding, wouldn't (and shouldn't) their lawyer be sanctioned for frivolously asking the court to rewrite the school-lunch law? What distinguishes Bond?
Finally, why didn't Roberts suggest that equating chemical weapons with any harmful toxic chemical was likely some sort of mistake, rather like "3 X 7 = 10" might be, instead of claiming that the statute was ambiguous as written? Because making that argument, I think, would be impossible.
How, after all, in legal drafting, do definitions get mistakenly (technically, accidentally—linguistic mistakes are confusions about meaning, not drafting errors) applied to defined terms? Usually, you define a term, use it to mean its natural meaning, and forget you already defined it to mean something rather different. That account of definitional accident, was unavailable in Bond, because it's unthinkable, at least extremely improbable, that Congress or its drafters carefully defined "chemical weapon" in section 229F, forgot how it had been defined, and then wrote each of sections 229, 229B, and 229E, the small handful of adjacent sections that mention chemical weapons, on the mistaken assumption that their central, hardly self-defining term either wasn't defined or had been defined in a very different way. To impute that sort of accident to Congress requires an assumption of staggering congressional incompetence or collective drunkenness.
In my next post I'll address when definitions can be corrected, Chevron's relationship to claims of definitional error, and hopefully get around to how Digital Realty itself should be decided.
Saturday, November 4, 2017
Wednesday, October 11, 2017
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:
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."
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.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.
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?
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."
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