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January/February 2006, Page 28
Statutory Construction : Not For The Timid
By Jon May
By far the most exciting part of a defense lawyer’s practice is parsing the words of a criminal statute to uncover its latent ambiguity. Nothing, not an impassioned plea for the life of the accused, not a cross-examination that reduces the government’s lead witness to tears, comes close to the excitement that comes from demonstrating the lawfulness of a defendant’s conduct from the placement of an adverb in a sentence. Few realize the spark that inspired many of the giants of our profession occurred during those sessions at the black board (def. antecedent of white boards involving the use of chalk against a slate surface) in elementary school where sentences were de-constructed under the admiring gaze of our classmates. Little did we know that our facility with parallel and vertical lines identifying the subject from the predicate and showing which clauses modified which phrases would become so valuable later in our professional lives.
Amazingly, there are still lawyers practicing who fail appreciate the beauty of the poorly drafted statute; who eschew examination of the crime charged, failing to appreciate the obfuscation that led their client astray. It is to those lawyers that this primer is directed.
The Plain Meaning Rule
There are numerous rules of construction that are employed by courts considering a challenge to the constitutionality, meaning, or application of a statute. The most significant is the principle that courts must look to the plain meaning of the words used. For instance, consider Title 18 U.S.C. § 1958(a) (prior to its recent amendment). This statute criminalized the “use of interstate commerce facilities in the commission of murder-for-hire” and stated in pertinent part, “Whoever...uses the mail or any facility in interstate commerce...with the intent that a murder be committed...shall be,” put in jail for a long, long time. In United States v. Drury, the Eleventh Circuit Court of Appeals was asked to decide whether this language meant that the defendant must use a facility in a manner that has an effect on interstate commerce or whether the facility must merely possess the capability of affecting interstate commerce (did you notice the difference between the noun effect and the verb affect?).1
The importance of the distinction was graphically illustrated by the facts of the Drury case. Drury was accused of soliciting the murder of his wife. Whether he could be prosecuted by the federal government depended upon whether § 1958(a) required that he had made a telephone call to someone out of state or just that he used a telephone capable of making a phone call to someone in another state. Not surprisingly, it was the government’s position that it had jurisdiction as soon as Drury picked up the telephone.2
Applying the rule of construction that asks whether the “language at issue” had “a plain and unambiguous meaning with regard to the particular dispute in the case,”3 the court proceeded to examine “the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.”4 To that end the court sought “to give effect to all statutory provisions and construe related provisions in harmony with each other.”5
As the Eleventh Circuit observed, this was a more difficult task than one would expect. Two circuits, the Sixth and the Fifth, had addressed this precise question and had come to opposite conclusions.6 The problem is this. In the phrase “whoever . . . uses the mail or any facility in interstate commerce,” do the words “in interstate . . . commerce” modify the noun “facility” or the more distant verb “use.” If they modify “facility,” then the jurisdictional element would depend upon the type of facility used, not how it is used. On the other hand, if the words apply to “use,” then the jurisdictional element would only be satisfied if the particular use occurred in interstate or foreign commerce. A majority of the court held that since both interpretations were equally reasonable, the statute was ambiguous.7
Judge Stanley Marcus dissented from the majority’s interpretation of the statute. He found no ambiguity at all. According to Judge Marcus, “Purely from a structural viewpoint, . . . ‘in interstate or foreign commerce’ is an adjective phrase that modifies ‘facility,’ the noun that immediately precedes it — not an adverbial phrase that modifies the syntactically more remote verb, ‘[to] use.’” 8
All Words Must, To The Extent Possible, Be Given Meaning
Finding the statute ambiguous, the majority then invoked the principle that “a statute is to be interpreted so that no words shall be discarded as being meaningless, redundant, or mere surplusage.”9 As articulated by the Supreme Court, it is the duty of the courts “‘to give effect, if possible, to every clause and word of a statute.’”10 Consequently the court looked at part (b) of the statute. Title 18 U.S.C. §1958(b)(2) states that “ ‘facility of interstate commerce’ includes means of transportation and communication.” Significantly, here the statute uses the preposition “of” instead of “in,” that is, a “facility of interstate commerce” instead of a “facility in interstate commerce.” What is the significance of this? If this section is intended to be definitional, the use of the preposition “of” supports the interpretation that the jurisdictional element focuses on the type of facility used and not the manner of its use.11 The majority, however, held that this part of the statute was not intended to define how the facility would be used, but merely provided examples of the types of facilities that the law applied to. According to the court, this provision was simply intended to prevent confusion over what the word “facility” meant. For instance, it was not intuitively obvious that a telephone would qualify as a facility.12
The majority then went on to reject the government’s argument that the word “in” was synonymous with the word “of.” While such an interpretation would support the government’s position that what counted was the fact that Drury used a phone, not where he called, it would render the use of a different preposition meaningless in contravention of this rule of construction.13
Judge Marcus also disagreed with the majority’s interpretation of subsection (b). In his view, this section is clearly definitional, supporting his more grammatical interpretation of the statute’s plain meaning.14
Clear Statement Rule
Next the majority invoked the precept that “if Congress intends to alter the ‘usual constitutional balance between the States and the Federal Government,’ it must make its intention do so ‘unmistakably clear in the language of the statute.’”15 As the court went on to explain, this was to avoid unintended encroachments on state interests.16 Applying this principle, the majority found that because murder was the quintessential state crime, “federalization of murder-for-hire crimes necessarily engenders a shift in the federal-state balance.”17 Because Congress failed to make unmistakably clear its intent to alter that balance in § 1958, its application to the facts of Drury was unconstitutional.18
Not so fast, said Judge Marcus. Section 1958 does not deprive the states of anything. State prosecutors can still prosecute murder-for-hire crimes. All §1958 did was give federal prosecutors concurrent jurisdiction to be used in those cases where it made more sense for the federal government to be involved.19
Rule Of Lenity
What the rule of lenity says is that “when there are two rational readings of a criminal statute, one harsher than the other, we are to choose the harsher only when Congress has spoken in clear and definite language.”20 However, what the rule really means is that people cannot be punished for their conduct unless they are fairly on notice that the conduct in question is illegal.21 The problem with invoking the rule in Drury is that it is, as Judge Marcus points out, “difficult to accept the majority’s implication that Drury could possibly have believed that the retention of a hitman to murder his wife was not legally prohibited.”22 It is nevertheless an important rule of construction, having played a critical role in cases where the Supreme Court rejected an expansive interpretation of extortion,23 an expansive interpretation of the word “use” in the Gun Control Act,24 and the intangible rights theory of mail fraud.25
There is authority that this rule should not be invoked before a court has considered the structure, legislative history, and motivating policies behind legislation.26 But as Drury demonstrates this proposition is often disregarded.
Government Abhors A Loss
This is not really a rule of construction but a result of constructions that go against the government. In the Drury case discussed above, the Eleventh Circuit vacated the panel decision and granted rehearing en banc. Before the full court could decide the issue, Congress amended the statute, replacing the preposition “in” with the preposition “of.” With the waive of a pen, Congress eliminated any ambiguity and made it clear that the law prohibits the use of a “facility of” interstate commerce regardless of whether the signals traveled “in” interstate commerce.27
Strict Construction Of Penal Statutes
When a court believes that it is necessary to apply the rule of lenity but does not want to appear that it is hindering law enforcement it will invoke the principle that penal statutes are to be strictly construed.28 Since strict construction is the opposite of what activist judges are accused of doing, counsel may want to consider framing the issue in those terms to make it more palatable to the court.
Legislative History
Courts are not supposed to consider legislative history if they can resolve ambiguities in statutes through other means. If the courts can be believed, what is important is what was written into the law, not what the legislators said in committee or on the floor of Congress. But the reality is very different. Where judges disagree as to the interpretation of a law, legislative history becomes a critically important part of the debate. In the Drury case, the majority cited extensively from 18 U.S.C. § 1958(a)’s legislative history to support its contention that Congress enacted a narrow provision designed only to aid in the prosecution of crimes occurring across state lines.29
But like the Bible, legislative history can be found to argue any side of an issue,30 and Judge Marcus found ample material in the legislative history of § 1958 to support his interpretation of the statute.31
Doctrine Of The Last Antecedent:
Curiously, Judge Marcus did not invoke the “doctrine of the last antecedent,” although in substance his parsing of the statute is an application of that principle. This doctrine states that qualifying words, phrases, or clauses apply to the words or phrase immediately preceding.32 Justice Scalia provides a wonderfully lucid and commonsense example of this principle.
Consider, for example, the case of parents who, before leaving their teenage son alone in the house for the weekend, warn him, ‘You will be punished if you throw a party or engage in any other activity that damages the house.’ If the son nevertheless throws a party and is caught, he should hardly be able to avoid punishment by arguing that the house was not damaged. The parents proscribed (1) a party, and (2) any other activity that damages the house. As far as appears from what they said, their reasons for prohibiting the home-alone party may have had nothing to do with damage to the house — for instance, the risk that underage drinking or sexual activity would occur. And even if their only concern was to prevent damage, it does not follow from the fact that the same interest underlay both the specific and the general prohibition that proof of impairment of that interest is required for both. The parents, foreseeing that assessment of whether an activity had in fact ‘damaged’ the house could be disputed by their son, might have wished to preclude all argument by specifying and categorically prohibiting the one activity — hosting a party — that was most likely to cause damage and most likely to occur.” (citation omitted).33
The flaw in Judge Scalia’s hypothetical is demonstrated in the recent decision of the Fourth District Court of Appeal of Florida in the case of Rush Limbaugh v. State of Florida.34 In that case the court was asked to decide whether the Palm Beach County State Attorney had lawfully obtained Limbaugh’s medical records through a search warrant or whether Florida law requires the state to use a subpoena and give notice to the person’s whose medical records are sought. Before deciding that question, the court first had to consider the scope of the warrant issued. The warrant described the items to be seized as:
[R]ecords specifically and only pertaining to [petitioner] including the medical records, medical questionnaire, cash receipts, sections of appointment book pertaining to [petitioner], canceled checks, medical insurance forms submitted or prepared to be submitted to insurance companies, computerized records related to the ordering of narcotics, DEA prescriptions numbers and forms, records of dispersing or issuing prescriptions for controlled substances, DEA prescriptions numbers and forms, records of dispersing or issuing prescriptions for controlled substances, written and or computerized pertaining only to [petitioner].
As you can see, the warrant authorizes seizure of a number of items beginning with medical records and including “computerized records related to the ordering of narcotics.” Under the doctrine of the last antecedent, the warrant would have authorized the seizure of all medical records, whether or not related to the ordering of narcotics, and those computerized records specifically related to ordering of narcotics. And indeed, that is precisely how the physicians interpreted the language, turning over all of Rush Limbaugh’s medical records to law enforcement. But this is a tortured reading of the warrant and the Fourth District interpreted the warrant as seeking only those medical records “related to the ordering of narcotics, DEA prescriptions numbers and forms, records of dispersing or issuing prescriptions for controlled substances, DEA prescriptions numbers and forms, records of dispersing or issuing prescriptions for controlled substances, written and or computerized pertaining only to [petitioner]” demonstrating that the most commonsense reading of language does not always support the doctrine of the last antecedent.
Related Statutes: In Pari Materia
Statutes that deal with the same subject matter (in pari materia) are supposed to be considered together to discern their meaning.35 But courts do as they want and whether a court chooses to view a particular statute in light of others involving the same subject matter can be determinative of the outcome of the case. Consider once again Limbaugh v. State. The question: whether the State of Florida could obtain medical records by way of a warrant. Under Florida law, citizens had a constitutionally guaranteed right of privacy. And by statute, citizens were entitled to notice prior to anyone, be it a private party or the state, seeking their medical records by subpoena. Roy Black, who represents Limbaugh, argued that under Florida law, the police were not authorized to use a warrant to seize Limbaugh’s medical records. Instead, the state was required to give Limbaugh notice and seek authorization from a court to obtain his records by way of a subpoena.
The majority found that there was no ambiguity in the law requiring resort to statutory construction. Neither the Florida Constitution nor any Florida law limited the state’s authority to seize evidence by a warrant that otherwise satisfied the Fourth Amendment. Florida’s right to privacy did not apply to search warrants and the statues cited on behalf of Limbaugh applied only to records obtained by subpoena.
Although agreeing with the majority that there was no limit on the state’s right to seize evidence by way of a warrant, the dissent strenuously disagreed that Florida’s right to privacy and the limits the legislature placed on how medical records could be obtained by subpoena had no application. The dissent argued that the standards governing warrants and subpoenas could be harmonized by recognizing that there was a difference between the seizure of evidence and its review by the police. Based upon that distinction, the dissent contended that under Florida law, law enforcement could seize evidence without notice, but that the records could not be disclosed or reviewed without affording the target an opportunity to object to the scope of the disclosure.
Fundamentally, read in isolation, Florida law provided only as much protection for medical records as provided by the Fourth Amendment. Read together, Florida law provided far greater protection of Floridians’ privacy interests. Limbaugh thus demonstrates how important choice of rules is to the ultimate outcome of the case.
Exceptions: Expressio Unius Est Exclusio Alterius
The rule here is that if Congress enumerates specific exceptions in a general prohibition, other exceptions will not be recognized in the absence of explicit legislative direction.36 That is, unless the court chooses to disregard this rule. 37
In their wonderful little book, Statutory Interpretation: the Search for Legislative Intent, Ronald and Sharon Brown provide a terrific illustration of this principle. Consider a statute that “applies to apples, peaches, and oranges.” “Does this statute also apply to plums,” they ask. Their answer, “By not specifically including the specific term “plums” or a general term in which plums might be included, it appears that the legislature intended not to include plums.” 38
General v. Specific: Ejusdem Generis
This translates to “of the same kind, class or nature” and means that where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned.39
Again, back to fruit. Consider a statute that applied to “limes, grapefruits, oranges, and others.” Certainly no one would argue that the statute was meant to apply to bicycles. But was it meant to apply to just any fruit, like an apple, or to something more specific, such as a fruit that shared a characteristic that each of the enumerated items had in common, like another citrus fruit.40 The question for the courts is just how narrow a class do you create in applying this doctrine.
General vs. Specific: generalia specialibus non derogant
Generalia specialibus non derogant, means that specific provisions apply over general ones. 41
Ambiguous Term: Noscitur A Sociis
This is a Latin term well know to all parents who warn their children not to hang out with the wrong crowd. The Latin translation is “[i]t is known from its associates,” or “the meaning of questionable words or phrases in a statute may be ascertained by reference to the meaning of words or phrases associated with it.”42 Another ways of saying this is that language must be read in context [since] a phrase gathers meaning from the words around it.43
Treatises/Academic Literature:
Among the sources courts look to along with legislative history are treatises and articles by recognized authorities.44
Terms Of Art:
Where a court finds that Congress has used a term of art, it will give it the meaning applied in previous authoritative interpretations.45
Unreasonable Results:
Courts agree that they are not bound by the clear language of a statute to apply it in such a way that it leads to an absurd result. But the level of unreasonableness that courts are willing to accept varies greatly.46
Same Words, Different Meanings:
It is also true that where Congress has used the same words in different parts of the same statute, the words are presumed to have the same meaning, but this is just a presumption that can be overcome if the purpose of the statute is better served by a different usage.47
Subsequent Legislation
“[A] later-enacted, more specific, comprehensive statute that targets the specific subject matter at issue in the case controls the construction of a more general statute when there is a potential conflict or discrepancy between the burdens imposed upon affected entities.48”
Specific Issues: Evidentiary Privileges
The courts construe certain issues more narrowly that others. Evidentiary privileges are narrowly construed because they impede the search for truth.49
Specific Issues: Remedial Legislation
Remedial legislation will be construed broadly to effectuate its purpose.50.
When “Or” Means “And”
The presumption is that “or” is disjunctive but this presumption can be overcome by the context in which it is used. An excellent example of this latter situation is found in the decision of the Third Circuit in United States v. Hodge.51 There the court rejected the argument that the use of “or” in 21 U.S.C. §802(32)(A) was intended to be disjunctive. In that case, the question was whether the statute was intended to reach new drugs that had the same kind of adverse effect upon the human body as controlled substances already banned or was it also intended to include cases where someone just represented whether the substances had such an effect. Unfortunately the statute was not very artfully drafted. It applied to substances whose:
(i)...chemical structure is similar to the chemical structure of a controlled substance...
(ii)...which have a similar affect as a controlled substance on the central nervous system...or (emphasis added)
(iii) [where the person]...represents or intends to have a stimulant, depressant, or hallucinogenic effect...
If read in the disjunctive, the statute would have required that the court impose the same sentence on the defendant for distribution of candle wax and flour as he would have received had he distributed heroin or cocaine. The Third Circuit found that this could not have been what Congress intended, essentially reading the word or to mean and.52
When “May” Means “Shall”
May is usually permissive, shall usually mandatory; except where may is mandatory and shall is permissive.53
Common Law Meaning:
When a legislature uses a common law term, it is presumed that the legislature intended a common law meaning.54
Undefined Term:
If the term is undefined, the court must give it its ordinary meaning.55
Repeals By Implications:
“An implied repeal will only be found where provisions in two statutes are in ‘irreconcilable conflict,’ or where the latter act covers the whole subject of the earlier one and ‘is clearly intended as a substitute.’”56
Redundancy:
To be avoided, avoided.57
Supreme Court Precedents:
“Part of that context is the presumption that, in the ordinary case, ‘Congress expects its statutes to be read in conformity with [the Supreme] Court’s precedents.’”58
Preamble:
In the United States, unlike Britain, preambles usually carry little weight, although they are sometimes cited in support of a court’s interpretation if not in conflict with the text of the statutes itself.59
State Law Used To Construe Federal Statute:
Where there is a dearth of federal authority the courts can look to state law and practice for guidance.60
The Rule That Congress Is Not Stupid
Courts will often state that had Congress wanted a statute to be interpreted in a particular fashion, Congress knew how to say what it meant. While this principle makes sense in cases where there are analogous statutes containing language lacking in the statute in question, it if often just an additional justification for the court’s construction under other principles.61
Agency Interpretations
When a statute is clear the court are required to “give effect to the unambiguously expressed intent of Congress” but when “silent or ambiguous” the courts are required to defer to reasonable constructions reached by the agency charged with its implementation.62
Same Construction For Agency And Department of Justice:
There are times when an agency will argue that a statute should be interpreted differently in a civil context. The Supreme Court has said no. There cannot be a construction that
applies to an agency that does not apply to the Department of Justice.63
Prolonged Congressional Silence:
Prolonged congressional silence in response to a settled interpretation of a federal statute provides powerful support for maintaining the status quo. In statutory matters, judicial restraint strongly counsels waiting for Congress to take the initiative in modifying rules on which judges and litigants have relied.64
Dictionary v. Stare Decisis:
In a contest between the dictionary and the doctrine of stare decisis, the latter clearly wins. 65
Amendment:
When Congress acts to amend a statute, the courts will presume it intends its amendment to have real and substantial effect.”
Conclusion
Every day courts are called upon to interpret statutes. And in the vast majority of cases, this is an easy, straightforward task. But in those instances where the statute is unclear or ambiguous, courts are forced to look outside the text of the law for guidance. When they do, they are faced with a complex and often contradictory set of rules to assist them. Unfortunately, compared to almost every other area of the law, there are few authoritative treatises on statutory construction66 and much of the academic writing is so theoretical as to be useless to the practitioner and one suspects to the courts as well. Cynics will argue that there is not much to be learned from these rules, since they allow the courts to reach whatever conclusion the courts want. But this argument ignores two essential points. The first debatable, the other not. When I read opinions interpreting statutes, I am struck by how hard judges labor to get it right. Maybe judges cannot escape their backgrounds and prejudices completely, but they do try. What is indisputable is that these rules are used by the courts, that laws are struck down based upon these rules, and that no criminal defense attorney can afford to ignore these rules and truly render effective assistance of counsel.
Notes
1. 344 F.3d 1089 (11th Cir. 2003) vacated and rehearing en banc granted, United States v. Drury, 358 F.3d 1280 (11th Cir. 2004).
2. Id.
3. Id. at 1098, citing, Robinson v. Shell Oil Co. 519 U.S. 337, 340 (1997)
4. Id. citing, Robinson at 341.
5. Id. citing, Borgner v. Brooks, 284 F.3d 1204, 1209 (11th Cir. ), cert. denied sub nom, Borgner v. Florida Bd. of Dentistry, 537 U.S. 1080 (2002).
6. Compare United States v. Weathers, 169 F.3d 336 (6th Cir.) (finding that § 1958 requires that the facility actually be used in interstate commerce), cert. denied, 528 U.S. 838
(1999); United States v. Paredes, 950 F.Supp. 584, 590 (S.D.N.Y.1996) (same), aff’d, 162 F.3d 1149 (2nd Cir.1998) (table), with United States v. Marek, 238 F.3d 310 (5th Cir.)
(finding that using a facility capable of interstate commerce is sufficient), cert. denied, 534 U.S. 813 (2001).
7. Drury, 344 F.3d at 1099.
8. Id. at 1114.
9. Id. at 1099 citing, United States v. Canals-Jimenez, 943 F.2d 1284, 1287 (11th Cir.1991).
10. Id. at 1099 citing, United States v. Menasche, 348 U.S. 528, 538-39 (1955) (quoting Montclair v. Ramsdell, 107 U.S. 147, 152 (1883)).
11. Id.
12. Id. at 1100
13. Id.
14. Id. at 1115.
15. Id. at1100, citing Will v. Michigan Dept. of State Police, 491 U.S. 58, 65 (1989).
16. Id.
17. Id. at 1101.
18. Id.
19. Id. at 1118.
20. Id. at 1101, citing, McNally v. United States, 483 U.S. 350, 359-60 (1987).
21. United States v. Genova (7th Cir. June 20, 2003).
22. Id. at 1119.
23. Scheidler v. National Organization of Women, 537 U.S. 393 (2003).
24. Baily v. United States, 516 U.S. 137 (1995).
25. McNally v. United States, 483 U.S. 350 (1987).
26. United States v. Brisbane, 367 F.3d 910 (D.C. Cir. 2004).
27. United States v. Drury, 396 F.3d 1303, 1311 (11th Cir. 2005).
28. United States v. Campos-Serrano, 404 U.S. 293, 297 (1971).
29. Id. at 1103-04.
30. As Judge Leventhal observed, reviewing legislative history is like ‘looking over a crowd and picking out your friends.’ Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 Iowa L. Rev. 195, 214 (1983
31. Id. at 1119-20.
32. United States v. Hodge, 321 F.3d 429, 433 (3d Cir. 2003).
33. Barnhart v. Thomas, 540 U.S. 20, 124 S.Ct 376, 381 (2003).
34. ___So.2d___, Case No. 4D03-4973 (October 6, 2004).
35. “‘The correct rule of interpretation is, that if divers statutes relate to the same thing, they ought all to be taken into consideration in construing any one of them . . . . If a thing contained in a subsequent statute, be within the reason of a former statute, it shall be taken to be within the meaning of that statute . . . ; and if it can be gathered from a subsequent statute in pari materia, what meaning the legislature attached to the words of a former statute, they will amount to a legislative declaration of its meaning, and will govern the construction of the first statute.’” Branch v. Smith, 538 U.S. 254, 123 S.Ct 1429, 1445 (2003) quoting United States v. Freeman, 3 How. 5556, 564-565 (1845); Motion Picture Association of American, Inc. v. FCC, 309 F.3d 796, 801 (D.C. Cir. 2002).
36. Clay v. United States, 537 U.S. 522, 123 S.Ct. 748, 760 (2003); Sierra Club v. EPA, 311 F.3d 853, 859 (7th Cir. 2002).
37. Barnhart v. Peabody Coal, 537 U.S. 149, 123 S.Ct 748, 760 (2003)(“As we have held repeatedly, the canon does not apply to every statutory listing or grouping; it has force only when the items expressed are members of an ‘associated group or series,’ justifying the inference that items not mentioned were excluded by deliberate choice, not inadvertence.”); Russello v. United States, 464 U.S. 16 (1983)(making clear that this is a presumption only).
38. Ronald Brown and Sharon Brown, Statutory Interpretation (NITA 2002) 82-83.
39. Kurinsky v. United States, 33 F.3d 594, 597 n. 2 (6th Cir. 1994).
40. Statutory Interpretation, supra, at 75-76.
41. Mattel v. Barbie-Club.Com, 310 F.3d 293 (2d Cir. 2002); Stoltz v. Brattleboro Housing Authority 315 F.3d 80 (2d Cir. 2002).
42. Id. n. 3
43. General Dynamics Land Systems Inc. v. Cline, 540 U.S. ___, 124 S.Ct. 1236, 1246 (2004).
44. Marvel Characters v. Simon, 310 F.3d 280, 291 (2d Cir. 2002); Nutritional Health Alliance v. FDA, 318 F.3d 92, 99 (2d Cir. 2003).
45. Community Health Center v. Wilson-Coker, 311 F.3d 132, 137 (2d Cir.2002).
46. Krzalic v. Republic Title Co., 314 F.3d 875, 880 (7th Cir. 2002)
47. Inyo County Calif. v. Paiute-Shoshone Indians, 538 U.S. 701, 123 S.Ct 1887, 1893 (S.Ct. 2003).
48. Nutritional Health Alliance v. FDA, 318 F3d 92, 102 (2d Cir. Jan. 21, 2003).
49. Pierce County, Washingon v. Guillen, 537 U.S. 129, 123 S.Ct. 720, 730 (2003).
50. Henrietta D. v. Bloomberg, 331 F.3d 261, 279 (2d Cir. 2003).
51. United States v. Hodge, 321 F3d 429, 433 (3d Cir.2003).
52. Id. at 432-433.
53.Photopaint Technologies v. Smartlens Corp., 335 F3d 152 (2d Cir. 2003).
54. Scheidler v. National Organization for Women, 537 U.S. 393, 123 S.Ct. 1057, 1064.(2003).
55. Liesegang v. Secretary of Veterans Affairs, 312 F.3d 1368, 1374 (Fed. Cir.2002).
56. Branch v. Smith, 538 U.S. 254, 123 S.Ct 1429, 1441 (2003).
57. Clark v. United States, 322 F.3d 1358, 1365 (Fed. Cir.2003).
58. Sepulveda v. United States, 330 F.3d 55, 64 (1st Cir. 2003), citing Clay v. United States, ___U.S.___, 123 S.Ct. 1072, 1076 (2003)
59. Yankton Sioux Tribe v. Gaffey, 14 F.Supp. 2d 1135 (D.S.D. 1998) aff’d in part and rev. in part, on other grounds, 188 F.3d 1010 (8th Cir. 1999).
60. Thames Shipyard v. United States, 350 F.3d 247, 258 (1st Cir. 2003)
61. In re Price, 353 F.3d 1135, 1141 (9th Cir. 2004).
62. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837, 843 (1984).
63. Association of Civilian Technicians v. Federal Labor Relations Authority, 360 F.3d 195, 199 (D.C. Cir. 2004).
64.
65. Hibbs v. Winn, ___U.S.___ 124 S.Ct 2276, 2292 (2004)(Justice Stevens, concurring).
66. The one exception being, Singer, Norma, Sutherland Statutory Construction, (6th Ed. 2002 Rev.) n |
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