United States v. Espy, Alphonso M.

misuse alleged do not involve cation Agriculture by office of payments gifts any acceptance of

Espy, having business with De- persons conduct, pattern partment, similar Attorney agree with the therefore

We application seeks an that the current

General authority beyond the of this

appointment

court.

CONCLUSION above, we con- the reasons set forth

For authority lacks

clude

grant sought by Independent the referral opposition over the

Counsel Smaltz deny

Attorney General. therefore We by way order.

application attached America, Appellant,

UNITED STATES ESPY, Appellee.

Alphonso Michael

No. 98-3001. Appeals, Court of

District of Columbia Circuit.

Argued March

Decided June Wells, Kitchen,

Erik L. and Theodore V. Jr. M. Rivens en- on the brief. Rhonda were appearance. tered WILLIAMS, Before: SILBERMAN BUCKLEY, Judges, and Senior Circuit Judge. Circuit Opinion for the Court filed Circuit Judge SILBERMAN.

Concurring opinion filed Senior Circuit Judge BUCKLEY.

SILBERMAN, Judge: Circuit independent This case arises from an coun- investigation charges into that former sel Secretary Agriculture Alphonso Michael Espy accepted illegal gratuities while in of- fice, public personal used funds for his bene- fit, up wrongdoing. lied to cover his A indictment, grand jury returned a 39-count granted Espy’s motions but the district 26-28, brought under the dismiss Counts Act, 39, brought Inspection and Count under the False Statement Statute. immediately government appealed. af-We respect with firm the district court to Count respect but reverse with to Counts 26-28. I. alleged ac

Counts 26-28 $4,221.00 gifts cepted approximately Oats, Quaker Tyson’s corporations Foods and subject to the Meat Act. The “any inspector, deputy inspector, forbids inspector, chief officer the United States authorized to subchap- the duties accept gratuities. ter” Kagay, Appellate Charles M. Chief Coun- added). court, (emphasis The district sel, appellant, argued the for cause appellee, agreeing with concluded that Smaltz, Independent whom Donald C. Coun- ambiguous in statute is as to whether it sel, Greenberg, Deputy Inde- Theodore S. and, Secretary Agriculture rely cludes the Guichet, Counsel, pendent Joseph P. As- construction, ing deter on several canons Counsel, Independent sociate were on the mined that the was not covered.1 briefs. us, appellee particularly emphasizes Before Ogletree, argued ejusdem generis and the avoidance of consti Charles J. Jr. the cause Weingarten, questions. general appellee, with whom Reid H. tutional Where deference, argument, empha appellee but the issues 1. At oral counsel for questions statutory interpreta prevailed are sized several times that he had before before us Obviously, appropriate. point no deference is the district court. That could be relevant tion. terms, sponse Upton specific the rule Sinclair’s famous book follows list Seuss, ejusdem generis limits the term as see United States v. Jungle, (1st Cir.1973), referring only category. to items of the same and seeks to ensure 38.8 Accordingly, appellee the district both products. Espy may safe meat well be cor- to interpreted court have “other officer” in saying paradigm Congress’ rect that the in actually inspect only those who meat. mean corrupt inspector engaged mind was a meat canon, for the avoidance see Association As slaughterhouses; in the actual examination of Surgeons Physicians and v. American Secretary, corrupt supervises but a who all Clinton, (D.C.Cir.1993), 997 F.2d 906-11 Agriculture Department employees, obvious- provides person § under 622 that a convicted ly greater could cause an even deleterious “summarily discharged that section will be Brogan effect on meat. See v. States United punished by a fine from office and shall be — U.S.-,-118 805, 809, 139 $1,000 $10,000 not nor more than less (1998) (“[I]t not, L.Ed.2d 830 and cannot is by imprisonment not less than one [for] be, practice unqualified our to restrict year years.” Although than three nor more language of a statute to the evil subject to removal because he is is not Congress trying remedy.”). that was to Nor longer Secretary Agriculture, no he some- impressed appellee’s are we observation imaginatively argues if what he were Secretary’s that the duties under the sub- Secretary, provision still the removal could chapter specifically are not referred to as applied constitutionally him. not be to Con- “duties,” inspector’s in contrast to the meat gress would not have intended an unconstitu- tasks, §in in- which are identified 621 as result, tional therefore he claims specting carcasses and “other duties.” We Secretary among the “other must appel- All think that distinction trivial. officers” to whom the statute refers. attempts “duty” to lee’s restrict to ejusdem generis But before either or the inspection” really quite hands-on “meat are applies, avoidance canon there must be ambi- Secretary charges The Act labored. guity in the statute —and we see none. The comfortably a host of tasks that fit Secretary certainly an autho- “other officer “duty,” “something definition of rized to ... duties expected required to moral or one is or do subehapter.” To name a few: “the Sec- obligation.” legal The Random House Col- retary by inspectors shall cause to be made Dictionary lege (Revised Ed.1980). Al- 411 appointed purpose postmortem though explicitly the Act never identifies inspection of the carcasses examination “duties,” responsibilities gives it no these parts thereof of all cattle” 21 U.S.C. meaning duty indication that the normal (1994); Secretary § 604 “the shall cause to apply.2 should not inspection a careful of all cattle ... be made not find the statute in the Since we do export foreign intended and offered for to ambiguous, have no to least bit we need (1994); § 21 “the countries” U.S.C. 612 Sec- any legitimate purpose in em employ, nor retary [designated congres- shall submit to designed ploying, canons of construction comprehensive and de- committees] sional 620(e) confusing language. Ejusdem gen- reconcile § report” 21 tailed written U.S.C. general play comes into when the (1994); shall, eris “Secretary time and the in that it creates time, term the list is so broad regulations make such rules and States, ambiguity. 297 Gooch v. United necessary the efficient execution of are 124, 128, 56 S.Ct. 80 L.Ed. 522 provisions subchapter” 21 of this U.S.C. Mescall, (1994). passed § Act in re- accord United States 621 was he, applies inspectors, yet Inspection Act to meat Appellee "like all also insists that because members," already general bribery they covered other Cabinet are also covered general government bribery provision which, found contrary Espy’s implication, statute — regulates (1994), § doubtful that at 18 U.S.C. Congress officers. 18 U.S.C. more than Cabinet through § reach him intended to 201(a)(1) (defining “public § officials” within that the But it is neither here nor there person any "officer or its ambit as Agricul- bribery statute covers the States"). acting the United for or on behalf of dispute Appellee that the Meat ture. does (1909). impose presidential cations can For exam 54 L.Ed. 77 Security we have little doubt that Con appointees, International ple, Cole Burns Services, Agriculture legitimately we restrict gress could (D.C.Cir.1997), to a of the Fed to those not convicted Department the canon officers Myers exempting “contracts of Act. eral Arbitration the Meat See seamen, employees, employment railroad United (“We engaged of workers other class see no conflict 71 L.Ed. 160 foreign or interstate commerce.” [power prescribe qualifica between (1994). There, phrase “workers en give or to reasonable classifi tions for office foreign interstate commerce” gaged appoint promotion] that of cation for every enough nearly sweeping removal, to include provided of course that ment and Indeed, it was worker the United States. limit qualifications do not so selection the interpretation a literal would so broad that be in upon executive choice as to so trench preceding specific enu have rendered the designation.”). it is legislative effect And (seamen employees) and railroad merations that a restriction on continued ser doubtful Here, contrast, surplusage. constitutionally suspect mere any vice is more au term “other officer Pub appointment an initial restriction. See Justice, 440, thorized to duties Dep’t 491 U.S. lic Citizen of subchapter” 484-85, 2558, has set its own limits' —“duties 105 L.Ed.2d 377 109 S.Ct. subchapter” (1989) there is prescribed J., (Kennedy, concurring) (arguing —so limit it further. removal, no need to implicit power, warrants protection appointment power, than the less reason, we need not elabo For the same explicitly conferred the Constitut which is argument. appellee’s constitutional rate on ion).4 — States, v. United See Almendarez-Torres -, -, 1219, 1228, 140 118 S.Ct. U.S. (“[for the avoidance canon L.Ed.2d 350 II. apply], genuinely must be sus statute constructions____”); alleges 39 of the Indictment

ceptible to two see also Count when the President’s Chief of Staff and Corp. v. Florida Edward J. DeBartolo Gulf Council, questioned Espy about whether he Bldg. Trades 485 Counsel Coast and Constr. 1392, gratuities, Espy responded 645 had received 108 S.Ct. 99 L.Ed.2d U.S. there,” (1988). for, nothing although he uncalled howev “there’s else out. It would not be er, representation to be untrue. The that we think his constitutional knew to observe in effect at the time considerably overdone.3 This False Statement Statute “in the one forbad false statements to be made provision removal is not the same as jurisdiction any depart Synar, matter unconstitutional in Bowsher v. within held 714, 3181, agency ment or of the United States.” 18 92 L.Ed.2d 583 (1994).5 (1986). There, Congress maintained U.S.C. The district itself Here, Presi Congress held that the Executive Office control over removal. “department” and dent was not a dismissed disqualified someone convicted counsel, independent urging the count. The Inspection Meat Act from continued service reversal, job. Although argues that the statute uses the government her his or qualifi department to refer to the whole execu- limits to the there are constitutional 3.Moreover, particularly significant imagine any sitting it that no cannot Sec- thinks we prosecut- Secretary Agriculture has ever been way Espy retary facing envi- in the Act. We are thor- ed under the oughly that, conviction, argues upon He the stat- sions. unimpressed reasoning. with this The require judge to order the President ute would States has never been Chief Justice of the United fire the defendant. This is no means clear grand larceny, prosecuted but that does theft likely interpretation from the statute. The more larceny apply to him. not mean that laws do summary discharge provision, ap- as is that plied employee, merely officer or Notably, § 1001 was amended in 1996 to cover hortatory to the Presi- direction from jurisdiction any false made within the statement "executive, legislative, judicial dent. branch added.) (Emphasis of the Government.” hand, (as Espy, on the department”) tation. have tive “executive branch or, of Information alternatively, that the Executive Office us look Freedom (FOIA), regarded agen- “agency.” also term uses the the President should entity An cy- Executive Office does qualify “agency” unless exercises 18, “department” In is de- Title independent authority,” “substantial Soucie departments fined “one of executive (D.C.Cir. David, 1073-76 1 of unless the enumerated in section Title 1971); Kissinger Reporters see Comm. for such term intended context shows that Press, Freedom the executive, legislative, judi- to describe the (1980), which, 960, 63 L.Ed.2d 267 government.” 18 U.S.C. cial branches of course, would not be true of either the Chief added). Supreme (emphasis § 6 or the Counsel. And it Staff President’s § 6 ex- treats the Court has observed thought never been that the whole Exec has pansive reading “department” as the ex- utive Office of President could be consid ception. v. United Hubbard ered a discrete under FOIA. 700-01, 131 L.Ed.2d (1995). Hubbard, In the Court held that Espy’s analogy to not work. FOIA does “department” under is not a branch Supreme “agency” Court defined nar- 1001; doing, § in overruled United so rowly assumption on under FOIA the that Bramblett, 503, States to chill Congress would have wished dis- (1955), where, applying 99 594 L.Ed. presidential cussion between close advisors. branch, legislative § 1001 to the Court the Congress, It is no means obvious that for “department” broadly interpreted to de- had reasons, analogous policy would have wished “executive, legislative, and scribe the similarly agency a narrow of definition for 509, 75 branches of the Government.” Id. at Indeed, indepen- § purposes of the Appellant would have us limit S.Ct. 504. argues counsel that a broad definition dent holding § that Hubbard a under to likely policy the of would more serve may “judicial refer department to the by protecting the Executive Office statute department” can refer to “executive but the of false statements in the course its against reading department.” do not think that We investigations. or the statute feasible. of either Hubbard key deciding the to whether We think Nothing grammatical of in the context referring be to “agency” should read as the using § 1001 that was the indicates Executive of the President entire Office synonym a- “department”

word § “jurisdiction.” Recall 1001 the word “branch.” jurisdiction matters “within the of reaches (Emphasis any department agency.” Ex add- Appellant’s contention that the ed.) a limited area “agency” implies the an “Jurisdiction” of ecutive Office of President is jurisdiction § meaning easily authority. 1001 of the Environ- is not so example, Agency, for provides 6 mental Protection can “[t]he discarded. Section jurisdiction of distinguished from the the ‘agency’ department, includes inde establishment, commission, Exchange Commission. pendent adminis Securities tration, It authority, the a realm it acts. would board or bureau of Each has “jur- anomalous, however, any corporation refer to the in which be United States interest, Office the proprietary the has a isdiction” Executive United States which, course, is coextensive unless the context shows that the term President — authority. do not in a more sense.” with the President’s We intended to be used limited Although acknowledging normally these refer to the President’s executive that none of “jur- authority as his fit with Executive under Constitution terms an obvious President, with a argues for those appellant isdiction” because —even Office separation “authority”; relatively formalist view of qualify that it can event, powers legislative au- says, he the word renders executive “includes” —the exhaustive, “jurisdic- thority separate rather are not viewed as the list illustrative interpre- suggests expansive an tions.” tone

1374 6,§ considered “agency” it cannot be independent counsel relies § purposes of 1001. “agency” Rodgers, 104

United States (1984), 492 where 80 L.Ed.2d Court, Ap reversing Supreme the Court the district Accordingly, we remand to jurisdiction meant “the peals, said that reinstated. Counts 26-28 court and order however, There, power the Court to act.” inapplicable Appeals had held BUCKLEY, concurring: Judge, Senior quasi-judicial FBI it attributed because ambiguities “unambiguous” has The word “jurisdiction” meaning to the Thus, language unambiguous own. of its adjudicate rights, power FBI “had no by Congress to address chosen compel ac binding regulations, establish consequences that at times have situation will problem giving finally dispose of the tion or drafts- have been intended its could not at inquiry.” Id. rise to men; consequences unintended and such (quoting Friedman v. United at first ambiguity where none may engender (1967)). Although reject F.2d case, correct in appears. In this the court is definition, Supreme ing quasi-judicial stating language of section 622 clear- that the the no reasoning is consistent with Court’s Agriculture ly applies to a jurisdiction implies limited authori tion being “officer ... of the of his virtue ty. The Court said: perform ... authorized subchapter.” duties described natural, reading of nontechnical The most summary § 622. Yet the section’s statutory language is that it covers all sanction, a cabinet dismissal authority of the confided to the matters officer, Congress’s appear to exceed Thus, department. Webster’s authority. It circumstances such Dictionary broad- Third New International judicial the doctrine of courts will invoke as, “jurisdiction” among ly defines See, severability. e.g., Dollar Robert Co. territory which things, the “limits or within Co., Foundry 220 N.Y. Car & Canadian may any particular power be exercised: (1917) (holding that “where 115 N.E. authority.” department A sphere of attempts or single section of a statute sense, jurisdiction, in when agency has entirely distinct and purports to cover two authority in a power to exercise it has cases, properly one separable classes in this particular situation. Understood may ... improperly, section] [the the other jurisdiction” way, phrase “within the constitution- upheld as to the class which be official, merely autho- differentiates covered, though con- ally may thus even be an from matters rized functions of other”). This is a demned as body. of that peripheral to the business remedy the 1907 with which the drafters of omitted). (citations at 104 S.Ct. 1942 Id. were familiar. Unlike appellant’s interpretation problem courts have many criminal cases which nothing peripheral to the business is that rejected of sever- application of the doctrine President, phrase Raines, so the “within ability, United States cf. jurisdiction” not draw lines. One does 17, 22, 4 L.Ed.2d 524 say phrase differentiates be- might appli- put where the (“Perhaps cases can be personal business and severability tween the President’s doc- [of cation avoidance office. But the line be- that related his necessitate to a criminal statute would trines] distinguishes “personal” create a tween “official” and of its text as to such a revision juris- longer gave “private,” from while statute no “governmental” situation in which the things pro- aptly categorize warning of the conduct it intelligible lines more dictional an hibited.”), penalty province one or another of the dismissal as within the severance Here, everything integrity of the body. not undermine the governmental “hamper the 622 or province governmen- of the same of section remainder within ‘[e]very ... to know with ability man body. hold that even if the tal We therefore ” committing a crime.’ certainty he is when of the President Executive Office Reese, (citation omitted). L.Ed. 563 rejection Esp/s

I the court’s agree with that, Congress had no because

power the Constitution to order officer, phrase of a cabinet

dismissal may construed to

“other not be offieer[s]” Secretary. ambiguity Whatever

include

may section’s be created virtue of the may impermissible

inclusion of what

penalty person to a severability,

cured the doctrine the dismissal

would allow a court withhold enabling it re- apply while

sanction

maining ones to a convicted

violating the section. proper

Because I believe to be argu- disposing Espy’s avoidance

basis for

ment, myself the court’s I disassociate

dicta, concerning Congress’s page

putative authority legislate for a conditions in service

cabinet officer’s continuance suggestion,

its footnote sum-

mary might be construed dismissal merely hortatory. America, Appellee,

UNITED STATES RHODES, Appellant.

Robert

No. 97-3131. Appeals, Court of

District of Columbia Circuit.

Argued March

Decided June

Case Details

Case Name: United States v. Espy, Alphonso M.

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jun 16, 1998

Citation: 145 F.3d 1369

Docket Number: 98-3001

Court Abbreviation: D.C. Cir.