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.

I Blinked.

Posted in Anticipation by Mike Sacks on March 30, 2010

It’s 4:45am.  I’ve been up for over an hour.  I’m all dressed, spare one shoe.  But I’m going back to sleep.

Dillon v. United States, this morning’s first case, certainly classifies as a mid-major.’s Legal Blog Watch predicted yesterday that by last night I’d  be “already in line with a couple of PowerBars and an empty milk jug.”  And while I find PowerBars unsavory and my lactose intolerance distances me from milk jugs even as latrines, I had intended to get in line for Dillon.

But I blinked.  Instead of rushing out the door soon after my alarm went off, I spent an hour agonizing over obstacles surmountable or imagined: my Passover seder kept me up a little too late last night; I hear rain and thunder outside; the Court’s slated to hand down decisions this morning, hopefully several big ones; Dillon is just a sentencing case.

Dillon, however, is not just a sentencing case.  It’s a sequel of sorts to United States v. Booker, in which the Court, by an ideologically scrambled 5-4 vote, held that the federal sentencing guidelines were advisory rather than mandatory. Dillon asks whether a federal judge may modify a sentence to go below the Guidelines even as he resentences a criminal per a new guideline range.  In other words, as applied to Dillon‘s facts, does Congress’s retroactive lessening of the mandatory minimum sentence for a crack cocaine possession preclude a judge from also relying upon Booker to further reduce the sentence?  Behind the curtain, the justices may have seen something sympathetic in Percy Dillon, as the Court has denied certiorari in similar cases, and the SG’s office recommended denial in this case.

Dillon may, then, go on my short list of arguments I should have attended.  But whereas my marathon McDonald tailgate swallowed up my chances to see Skilling and Samantar, my excuses for staying home for Dillon may not add up–especially if the Court hands down no big opinions for me to write up today.

Then again, the Court’s March sitting is not yet over and I do need to conserve my energy during this carb-starved week…

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