D.C. Circuit Review – Reviewed: “SNAKES ON A PLANE”*

by Aaron Nielson — Friday, Apr. 7, 2017@Aaron_L_Nielson

Each week I try to come up with a new theme for the D.C. Circuit’s cases. It can be tricky. Last night, in particular, I worried about what I would write this week. Should I write something about soon-to-be-Justice Neil Gorsuch? Perhaps, but I did that last week. My sleep was thus uneasy; I certainly do not want to disappoint my regular readers (all eight of them).

But then sometimes, because of the cases themselves, the theme is obvious. This is just such a week. Today — and I’m not making this up — there is a case in the D.C. Circuit that is — again, I’m not making this up — all about Snakes on a Plane. As a bonus, the case also illustrates the common observation that “we are all textualists now.”

In U.S. Association of Reptile Keepers v. Zinke, Judge Srinivasan (joined by Judges Tatel and Wilkins) addressed the Lacey Act, which bars “any shipment” of any species injurious to humans “between the continental United States, the District of Columbia, Hawaii, the Commonwealth of Puerto Rico, or any possession of the United States.” Certain snakes count as injurious to humans, “including the two species in issue here: the reticulated python and the green anaconda. Those two species are no garden-variety snakes. Reticulated pythons can grow to a length of more than 28 feet and have been known to eat humans. Green anacondas are the world’s heaviest snakes, attaining a weight in excess of 400 pounds and growing to about 22 feet in length. Both species can reproduce via parthenogenesis, a process by which numerous offspring can hatch from a female’s unfertilized egg, enhancing the species’ ability to establish themselves in the wild and to resist efforts to control their populations.”

The government argued that the Lacey Act means that you can’t ship such snakes within the continental United States. A group of snake breeders, however, said it means you can’t ship such snakes between the continental United States and “the District of Columbia, Hawaii, the Commonwealth of Puerto Rico, or any possession of the United States,” but that shipping snakes between States within the continental United States — “for instance, shipments between Virginia and Maryland” — is okay. So who is right?

Judge Srivivasan held that the snake breeders are right; indeed, that the statute is not ambiguous:

When the word “between” introduces multiple items, it “expresses one-to-one relations” between the identified items. Bryan A. Garner, Garner’s Modern American Usage 101 (3d ed. 2009); see also Chicago Manual of Style § 5.220. While “between,” when used to introduce multiple items, therefore speaks to relationships between—i.e., across—the listed items, it ordinarily expresses nothing about relationships within any one of the listed items.

Consider, for instance, a notice to travelers saying the following: “Due to the weather, any flights between California cities are cancelled.” That bulletin imparts information about the status of flights within the sole listed item (“California cities”) — i.e., information about flights from one California city to another. Now, consider instead a bulletin which uses “between” to introduce a list of two items rather than just the one: “Due to the weather, any flights between California cities and New York are cancelled.” That notice speaks in terms of a one-to-one relationship between the two listed items: it communicates that there will be no flights from California cities (collectively) to New York, and vice versa. It says nothing, however, about the effect of the weather on flights within the first listed item alone — that is, flights between California cities.

There is a lot more of this sort of textual analysis (e.g., “the shipment clause’s listed jurisdictions include singular (as opposed to plural) entities: Hawaii, Puerto Rico, the District of Columbia, and any possession of the United States. Even if one could read the phrase, ‘there are no games between NFL teams or MLB teams,’ to mean ‘there are no games between NFL teams or between MLB teams,’ that reading is possible only because both objects of ‘between’ in that example are plural. No such interpretation is available when the list of objects introduced by ‘between’ includes singular items”). I found one aspect particularly interesting:

The shipment clause, while specifically referencing those jurisdictions (the “continental United States,” “Hawaii,” the “Commonwealth of Puerto Rico,” and “any possession of the United States”), also lists the “District of Columbia.” To the government, the reference to the District of Columbia necessarily means that the shipment clause prohibits all interstate shipments. Why, the government asks, would Congress bar shipments of injurious species between Virginia and the District of Columbia while allowing shipments of the same species between Virginia and Maryland? We are unpersuaded by the government’s reliance on the clause’s listing of the District of Columbia.

For starters, under the government’s reading of the shipment clause, the clause’s reference to the District of Columbia would be superfluous, which we generally assume Congress would not have intended. See, e.g., Duncan v. Walker, 533 U.S. 167, 174 (2001). Congress defined the phrase “continental United States” in a statute enacted by the same Congress in the year before the 1960 addition of the shipment clause. Under that definition, “[w]henever the phrase ‘continental United States’ is used in any law of the United States enacted after the date of the enactment of this Act, it shall mean the 49 States on the North American Continent and the District of Columbia, unless otherwise expressly provided.” In light of that definition, if, as the government urges, the shipment clause already barred the shipment of injurious species between the continental States, there would have been no need to list the District of Columbia separately.

The government, at any rate, is wrong to assume there could be no reason for Congress to prohibit the shipment of injurious animals from Virginia to the District without also barring shipments from Virginia to Maryland. The government’s argument to that effect overlooks Congress’s special legislative relationship with the District. The Constitution grants Congress the power “[t]o exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may . . . become the Seat of the Government of the United States.” U.S. Const. art. I, § 8, cl. 17. That is, “Congress, when it legislates for the District, stands in the same relation to District residents as a state legislature does to residents of its own state.” Banner v. United States, 428 F.3d 303, 308 (D.C. Cir. 2005). That was particularly true when the shipment clause came into being in 1960, more than a decade before the enactment of the Home Rule Act (which delegated “certain legislative powers to the government of the District of Columbia”).

Before the Home Rule Act, consequently, Congress alone had the ability to establish an import ban for the District of Columbia. Individual states, by contrast, could protect themselves by enacting their own laws prohibiting the importation into their borders of invasive species. Indeed, a number of states restrict or prohibit the importation of injurious species into their territory, with some of those laws specifically cross-referencing species deemed injurious under the Lacey Act. … Congress evidently exercised its own unique authority over the District of Columbia in the shipment clause in an effort to afford the same protection to the District. If so, that would explain why Congress protected the District against shipments from Virginia while leaving Maryland to protect itself against those shipments.

There is a lot more going on in this case. If you teach statutory interpretation, consider including this one on the syllabus.

The other cases this week are also interesting — though, alas, not “Snakes on a Plane” interesting.

In Prisology, Inc. v. Federal Bureau of Prisons, Judge Randolph, joined by Judges Millett and Sentelle, found no standing to hear a case requesting relief for the Bureau’s purported failure to comply with FOIA. The court explained that Prisology hadn’t claimed any specific injury to itself, and that it did not receive the automatic injury that could arise from having a FOIA request denied because it had not actually made a request for documents before suing. In short, “Prisology seems to argue that any violation of a statutory right to information is an injury in fact,” but “the plaintiff must still at least allege a particularized injury.”

In NextEra Desert Center Blythe, LLC v. FERC, Judge Tatel, joined by Judges Henderson and Srinivasan, remanded a decision to FERC because although the agency would normally get “Chevron-like analysis,” FERC did not acknowledge ambiguity in the statute: “Although this dispute implicates a tangle of provisions within an intricate regulatory scheme, our resolution is straightforward: we find ambiguity where FERC found none.” This is yet another example of what Dan Hemel and I dub “Chevron Step One-and-a-Half.”

Finally, in Navajo Nation v. Department of the Interior, Judge Sentelle, joined by Judges Kavanaugh and Pillard, considered whether a Navajo Nation budget proposal should be deemed approved since it was not declined after 90 days. Because the proposal was submitted “during a partial government shutdown,” the relevant official did not receive it right away. The court was not impressed: “Government stoppages are hardly unforeseeable. If the government believes it cannot ‘receive’ documents during a stoppage, it should instruct its employees not to receive them, rather than expect its citizens and its courts to ‘equitably’ pretend it has not done so.” Judge Kavanaugh concurred: “I join the Court’s opinion. I add this brief concurrence to explicitly state that equitable tolling may apply in certain government shutdown situations. The doctrine does not apply on the facts here, however, because the BIA had plenty of time after it reopened … to meet the 90-day statutory deadline at issue in this case.”

So there you go: Snakes on a Plane, Article III standing, Chevron Step One-and-a-Half, and a government shutdown. Quite a week.

* I wish I came up with that title, but I did not. Credit goes to Zoe Tillman. In the interests of full disclosure, I have not seen the movie. Nor, frankly, do I want to! But I have a pretty good idea what a movie called “Snakes on a Plane” is about. Ditto Sharknado.

 

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School, where he teaches and writes in the areas of administrative law, civil procedure, federal courts, and antitrust. He currently co-chairs the Rulemaking Committee of the American Bar Association’s Section of Administrative Law & Regulatory Practice. Previously he chaired the Section's Antitrust & Trade Regulation Committee. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. Follow him on Twitter @Aaron_L_Nielson.

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