FIRST ONE @ ONE FIRST

Sotomayor’s First Authored Dissent

Posted in Case Reports by Mike Sacks on March 30, 2010

The Court handed down three decisions today, none of which were the ones most have been waiting for.  We did, however, get Justice Sotomayor’s first authored dissent.

The milestone is more exciting than the dissent itself.  In Graham County Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, the Court considered whether the False Claims Act bars qui tam–or whistleblower–actions based on information in “administrative” sources from state and local governments along with those from the federal government.  Justice Stevens wrote for a 7-2 majority that the FCA’s qui tam bar does reach state and local sources.  Justice Sotomayor, joined by Justice Breyer, would have held that the statute only implicated federal sources.

Both Stevens and Sotomayor divined their decisions by applying the maxim of “noscitur a sociis,” in which an unclear word in a statute “may be known by the company it keeps.”  The two sides battled over the word, “administrative,” in the middle of the FCA’s phrase, “in a congressional, administrative, or Government Accounting Office [(GAO)] report, hearing, audit, or investigation.”  Stevens did not find “congressional” and “GAO” dispositive of a federal limitation to the whistleblower bar.

Sotomayor disagreed, noting that

[t]he three terms…the Court concludes, are “too few and too disparate” to justify invocation of noscitur a sociis. We have not previously constrained the canon in this way, and I would not do so here. [...]

Here, application of the noscitur a sociis principle readily yields a common feature: The sources at issue are federal in nature, not related to state or local governments or private entities.

As I wrote above, nothing too exciting in the substance of Sotomayor’s dissent, perhaps except in the fact that her opinion would have allowed for greater access to Courts for whistleblowers under the FCA.

In the unsurprising nonmilestone file, Justice Scalia wrote a concurrence rejecting both sides’ reliance on legislative history:

it is utterly impossible to discern what the Members of Congress intended except to the extent that intent is manifested in the only remnant of “history” that bears the unanimous endorsement of the majority in each House: the text of the enrolled bill that became law.

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