Statutory Interpretation: Give Effect to Each Word

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David A. Szwak
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Joined: Tue Jul 26, 2005 4:15 am

Statutory Interpretation: Give Effect to Each Word

Post by David A. Szwak »

The Tenth Circuit, following the United States Supreme Court in U.S. v. Menasche, 348 U.S. 528, 538-39 [1955], has repeated that “t is our duty to give effect, if possible, to every clause and word of a statute.” Matthiesen v. Banc One Mortgage Corp., 173 F.3d 1242 [10th Cir. 1999].
David A. Szwak
Posts: 4126
Joined: Tue Jul 26, 2005 4:15 am

Post by David A. Szwak »

The appellate circuits, following the United States Supreme Court in U.S. v. Menasche, 348 U.S. 528, 538-39 [1955], and Matthiesen v. Banc One Mortgage Corp., 173 F.3d 1242 [10th Cir. 1999] “t is our duty to give effect, if possible, to every clause and word of a statute.”. It is "a cardinal principle of statutory construction" that "a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant." Citing Duncan v. Walker, 533 U.S. 167 , 121 S.Ct. 2120, 2125, 150 L. Ed. 2d 251 [2001], Montclair v. Ramsdell, 107 U.S. 147, 152, 27 L. Ed. 431, 2 S. Ct. 391 [1883]. In Andrews, the court, addressing another provision in the FCRA, section 1681p, added: "’[W]ere we to adopt [Andrews'] construction of the statute,’ the express exception would be rendered "insignificant, if not wholly superfluous." Duncan, 533 U.S. at , 121 S.Ct. at 2125. We are ‘reluctant to treat statutory terms as surplusage in any setting,’ 121 S.Ct., at 2125.” TRW Inc. v. Andrews, 534 U.S. 19, 122 S.Ct. 441, 151 L.Ed.2d 339, 2001 U.S.Lexis 10306 [2001].
David A. Szwak
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Look to the Statute's Words: Ayers v. Equifax, et al

Post by David A. Szwak »

The touchstone of statutory interpretation is legislative intent as expressed in the statute's words. Thus, the well-settled starting point in the interpretive inquiry is the language of the statute itself. See United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989). Where a statute's language is unambiguous, a court's task of statutory construction ends unless enforcement of statutory language would contravene clearly expressed legislative intent. See In re Forfeiture Hearings as to Caplin & Drysdale, Chartered, 837 F.2d 637, 641 (4th Cir.1988).

[u80][b80]Ayers v. Equifax Information Services[/b80][/u80]
Not Reported in F.Supp.2d, 2003 WL 23142201
E.D.Va.,2003.
Dec 16, 2003
David A. Szwak
Posts: 4126
Joined: Tue Jul 26, 2005 4:15 am

Post by David A. Szwak »

Murray v. Household Bank (SB), N.A.
386 F.Supp.2d 993
N.D.Ill.,2005.

Plaintiffs cite extensively to the legislative history of the FACT Act, which reveals an absence of discussion regarding the elimination of a private right of action under § 1681m as a whole, in support of their argument that the enforcement provision applies to subsection (h) only. [u07][b07]None of the drafting choices identified by plaintiffs, however, rise to the level of a textual ambiguity or anomaly that would require, or even permit, the court to resort to legislative history. As the Supreme Court noted last term in Exxon Mobil Corp. v. Allapattah Servs., Inc., --- U.S. ----, ----, 125 S.Ct. 2611, 2624, 162 L.Ed.2d 502 (2005), a statute may contain an unintentional drafting error, but "it is up to Congress rather than the courts to fix it.[/b07][/u07]" 125 S.Ct. at 2624; see also Lamie v. United States Trustee, 540 U.S. 526, 542, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) ("If [u07][b07]Congress enacted into law something different from what it intended, then it should amend the statute to conform to its intent. It is beyond our province to rescue Congress from its drafting errors, and to provide for what we might think ... is the preferred result."[/b07][/u07]) (internal quotation marks and alteration omitted).

The court understands plaintiffs' frustration that reading § 1681m(h)(8) as written eliminates a substantial private cause of action under a statute that was enacted to protect private consumers. See 15 U.S.C. § 1681(a)(4) ("There is a need to insure that consumer reporting agencies exercise their grave responsibilities with fairness, impartiality, and a respect for the consumer's right to privacy."). [u07][b07]Courts, however, may not create a private right of action or private remedy, "no matter how desirable that might be as a policy matter, or how compatible with the statute[/b07][/u07]." Alexander v. Sandoval, 532 U.S. 275, 286-87, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001).

It certainly would not have been unreasonable for Congress to debate, or at least mention, such a sweeping change in enforcement of a section of the FCRA before passing the FACT Act. Plaintiffs' argument that the lack of discussion in the legislative history evidences a lack of congressional intent, however, is mooted by Exxon Mobil. Decided after Koons, Exxon Mobil holds that a court may not consider legislative history when, as here, the text of a statute is unambiguous. 125 S.Ct. at 2626. Exxon Mobil addressed a conflict between unambiguous statutory language of 28 U.S.C. § 1367(a) and an unambiguous statement of congressional intent, and held that the statute's text controlled entirely. Id. at 2626 ("[b07]As we have repeatedly held, the authoritative statement is the statutory text, not the legislative history or any other extrinsic material[/b07]"); see also Jacobs v. Bremner, 378 F.Supp.2d 861, 866 (N.D.Ill.2005) ("In short, Exxon Mobil declares that it is impermissible to consult legislative history when the statutory language is unambiguous.").

In the instant case, the legislative history appears silent regarding the continuing viability of a private right of action under § 1681m, rather than in express conflict with the statutory language, as in Exxon Mobil, 125 S.Ct. at 2630 (Stevens, J., dissenting) ([u07][b07]Congress directly anticipated the issues raised and left a "virtual billboard of congressional intent" as to how that question should be resolved[/b07][/u07].). Under Exxon Mobil, which bars resort to legislative history to alter the "plain terms" of a statute, it would be improper to consider legislative history here because plaintiffs have failed *999 to point to any textual ambiguity in § 1681m(h)(8) and the court cannot identify any. Jacobs, 378 F.Supp.2d at 866.[/u]
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