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SUMMARY OF OPINIONS ISSUED MAY 1-31, 2004


QUOTATION OF THE MONTH:

“Our various legislatures attempt to achieve order by their enactments, but not always with success: order can be elusive. That is why nine-tenths of all cases decided by our highest court, the Appellate Committee of the House of Lords, turn on statutory interpretation.”

FRANCIS BENNION, STATUTORY INTERPRETATION: A CODE 1 (2002)


CASE SUMMARIES:


Supreme Court

Jones v. R.R. Donnelly & Sons (S.Ct. May 3, 2004) (Stevens)

Statutes/regulations construed: 28 U. S. C. §1658, which is a “catchall 4-year statute of limitations for actions arising under federal statutes enacted after December 1, 1990.”

Conclusion: A cause of action “aris[es] under an Act of Congress enacted” after December 1, 1990, and is governed by section 1658’s 4-year statute of limitations “if the plaintiff’s claim against the defendant was made possible by a post-1990 enactment.” Thus, a cause of action alleging violations of 42 U.S.C. § 1981, as amended by the Civil Rights Act of 1991, was governed by the four-year statute of limitation of section 1658, not the two-year personal injury statute of limitations of the forum state.

Statutory construction tools:
• Location in United States Code: “Petitioners recognize that we have construed the term [“arising under”] more broadly in other statutes, but argue that the placement of §1658 in Title 28 suggests that Congress meant to invoke our interpretation of the neighboring jurisdictional rules. We hesitate to place too much significance on the location of a statute in the United States Code.”
• Congress’ intent, context, purposes: “In order to ascertain Congress’ intent, therefore, we must look beyond the bare text of §1658 to the context in which it was enacted and the purposes it was designed to accomplish.”
• New rights of action, amendments: “The interpretation favored by respondent and the Court of Appeals subverts that goal by restricting §1658 to cases in which the plaintiff’s cause of action is based solely on a post-1990 statute that ‘‘establishes a new cause of action without reference to preexisting law.’’ On that view, §1658 would apply only to a small fraction of post-1990 enactments. Congress routinely creates new rights of action by amending existing statutes, and ‘[a]ltering statutory definitions, or adding new definitions of terms previously undefined, is a common way of amending statutes.’” (citation omitted)
• Amendment to statute: “An amendment to an existing statute is no less an ‘Act of Congress’ than a new, stand-alone statute.”
• Other contexts: “We should avoid reading §1658 in such a way as to give the familiar statutory language a meaning foreign to every other context in which it is used.”


Till v. SCS Credit Corporation (S.Ct. May 17, 2004) (the Court concluded that, under the Bankruptcy Code’s “cram down option” provisions, the applicable rate of interest was the formula rate and it rejected the coerced loan, presumptive contract rate, and cost of funds approaches)


D.C. Circuit

United States v. Brisbane (D.C. Cir. May 11, 2004) (Randolph)

Statutes/regulations construed: Criminal statutes that provide that a conviction for distribution of a certain quantity of ‘‘cocaine base’’ will trigger much stiffer penalties than distribution an equivalent quantity of ‘‘cocaine, its salts, optical and geometric isomers, and salts of isomers.’’ Compare 21 U.S.C. § 841(b)(1)(A)(ii)(II) & (B)(ii)(II) (‘‘subsection (ii)’’) with 21 U.S.C. § 841(b)(1)(A)(iii) & (B)(iii) (‘‘subsection (iii)’’).

Conclusion: The court rejected a “literal” approach under which the defendant--who was using a mixture containing cocaine base only for transport, and that substance could not be consumed without further processing--“would receive a far higher sentence than if he had been caught with powdered cocaine ready for retail distribution.”

Statutory construction tool: Rule of lenity: “As we have said, the rule of lenity suggests that we should resolve ambiguities in a defendant’s favor. But before we may apply that doctrine, we must examine the statute’s ‘structure, legislative history, and motivating policies.’”


Wells Fargo Bank v. Federal Deposit Insurance Corporation (D.C. Cir. May 18, 2004) (Responding to a congressional mandate, the Federal Deposit Insurance Corporation imposed a one-time assessment on certain financial institutions in order to boost the amount of money in the fund that insures savings-and-loan deposits. The court rejected a challenge to the method the FDIC used to calculate how much money it needed to raise—a calculation that in turn determined the assessment the FDIC imposed.)


Fourth Circuit

Reid v. Angelone (4th Cir. May 19, 2004)(Wilkins)

Statutes/regulations construed: 28 U.S.C.A. § 2253(c)(1)(A), which provides that a certificate of appealability is required in order for a habeas applicant to obtain appellate review of "the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court."

Conclusion: In every habeas proceeding, there is only one order subject to the requirements of section 2253(c). A single habeas action may embrace multiple habeas "proceedings," and more than one of these proceedings may give rise to a "final order" subject to the certificate of appealability requirement.

Statutory construction tools:
• Ambiguity—legislative history and legislative purpose: “And, to the extent that there is any ambiguity in these terms, we must consider other indicia of congressional intent, such as the legislative history . . . It is also appropriate in cases of ambiguity to consider which interpretation of the statute would best give effect to the underlying legislative purpose.”
• “The”: “Reid maintains, however, that the order denying her Rule 60(b) motion was not ‘the final order’ in this case. She asserts that because Congress used the definite article ‘the,’ rather than a broader term like ‘a’ or 'any,' § 2253(c) applies only to the order denying relief on her habeas application. Reid is correct about the meaning of the word ‘the.’ See Webster’s Third New Int’l Dictionary 2368 (1981) (stating that the word ‘the’ is ‘used . . . to indicate that a following noun . . . refers to someone or something that is unique’). Thus, because Congress used the definite article ‘the,’ we conclude that, in every habeas proceeding, there is only one order subject to the requirements of § 2253(c).”
• Congressional ratification: “Although the AEDPA substantially revised this provision, it retained the phrase relevant to our analysis—‘the final order in a habeas corpus proceeding.’ Because Congress did not change this phrase, we presume that Congress intended to ratify any settled judicial interpretation regarding the scope of the certification requirement.”


Walton v. Greenbriar Ford (4th Cir. May 28, 2004) (Department of Labor regulation, construing the term “salesman” in the Fair Labor Standards Act, was “unreasonable, as it is an impermissibly restrictive construction of the statute.”)


LAW REVIEW ARTICLE RECOMMENDATIONS:

My article is finally published: See Gary O'Connor, Restatement (First) of Statutory Interpretation, 7 NYU Journal of Legislation & Public Policy 333 (2003/2004). It is available on LEXIS and Westlaw. It was mentioned in the “Recent Articles of Interest” section of the Spring 2004 Administrative and Regulatory Law News. I would like to thank Yvette Barksdale for including it in that section.

My recommendation for this month:

Adam W. Kiracofe, Note, The Codified Canons Of Statutory Construction: A Response And Proposal To Nicholas Rosenkranz's Federal Rules Of Statutory Interpretation, 84 Boston University Law Review 571 (April 2004).

This Note “proposes that Congress enact the Codified Canons of Statutory Construction (‘CCSC’) by codifying and enacting into law the current judicial canons, but refrain from requiring their immediate application. Instead of enacting all canons at once and applying them prospectively or retrospectively to all statutes, each Codified Canon would sit idly until it was applied or ‘attached’ by Congress to a particular statute. While the attachment of Codified Canons certainly would take time to accomplish, the process would be much smoother and less hasty than an attempt to usurp all of the judicial canons of construction with one blow.

The purpose of the CCSC is to increase communication between Congress and the judiciary. Thus, the first step in the creation of such an act should be to involve the judiciary as Congress has previously done for similar acts. Appellate, bankruptcy, evidence, civil, and criminal rules are revised by an advisory committee selected by the members of the Judicial Conference. This should also be the method adopted by Congress in creating the CCSC. By including the judiciary in the drafting process, judges will be more inclined to accept the CCSC and more likely to have a sound understanding of its meaning and purpose. Congress should delegate to the Judicial Conference the power to create a committee that would compile a collection of all the canons of construction that have been used throughout the last two centuries, even those that directly conflict with one another.

The next step would involve codifying and categorizing the canons. Each canon must be placed into a certain category and given an identifying number. The advisory committee could provide notes on each canon's scope and how it had been applied in the past. For example, when creating the Codified Canon for the judicial canon ejusdem generis, the advisory committee could provide examples of past uses of the canon. Thus, the canon itself would carry a meaning that is comprehensible to both law-makers (i.e., legislators) and law interpreters (i.e., judges and lawyers).

As the last step before enacting the CCSC as law, Congress should insert a disclaimer into the code: ‘This code is inapplicable to the interpretation of any statute unless a provision is expressly enacted with that statute.’ This disclaimer is the key to the success of this proposal and the reason why conflicting canons of construction can exist within the same code. No canon, although codified and eventually enacted as law, will have any effect until it is assigned to a specific statute, and even then is only binding on the statutes to which it is attached.”

Id. at 584-85 (footnotes omitted).

My "Restatement (First) of Statutory Interpretation" article was inspired, in part, by Rosenkranz’s article. See Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 Harvard Law Review 2085 (2002). Other inspirations include: working on this weblog; Francis Bennion’s “Statutory Interpretation: A Code”; and a friend’s question “Are there a finite number of canons of statutory construction?”


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

Still (PARTIALLY) unanswered from the last update:

In a famous case early in his career, Edward Coke won by arguing that the opposing counsel misquoted the Latin text of the relevant statute. What was the name of the case (extra credit if you give the year)? What was the statute?


Congratulations to Anne Barnes, who correctly identified Scandalum Magnatum as the statute. But, so far, nobody has answered the questions about the name of the case and the year.