United States v. Espy, Alphonso M.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 25, 1998 Decided June 16, 1998

No. 98-3001

United States of America,

Appellant

v.

Alphonso Michael Espy,

Appellee

Appeal from the United States District Court

for the District of Columbia

(97cr00335-01)

Charles M. Kagay, Chief Appellate Counsel, argued the

cause for appellant, with whom Donald C. Smaltz, Indepen-

dent Counsel, Theodore S. Greenberg, Deputy Independent

Counsel, and Joseph P. Guichet, Associate Independent

Counsel, were on the briefs.

Charles J. Ogletree, Jr. argued the cause for appellee, with

whom Reid H. Weingarten, Erik L. Kitchen, and Theodore V.

Wells, Jr. were on the brief. Rhonda M. Rivens entered an

appearance.

Before: Silberman and Williams, Circuit Judges, and

Buckley, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Silberman.

Concurring opinion filed by Senior Circuit Judge Buckley.

Silberman, Circuit Judge: This case arises from an inde-

pendent counsel investigation into charges that former Secre-

tary of Agriculture Alphonso Michael Espy accepted illegal

gratuities while in office, used public funds for his personal

benefit, and lied to cover up his wrongdoing. A grand jury

returned a 39-count indictment, but the district court granted

Espy's motions to dismiss Counts 26-28, brought under the

Meat Inspection Act, and Count 39, brought under the False

Statement Statute. The government immediately appealed.

We affirm the district court with respect to Count 39, but

reverse with respect to Counts 26-28.

I.

Counts 26-28 alleged that Espy accepted approximately

$4,221.00 in gifts from Tyson's Foods and Quaker Oats,

corporations subject to the Meat Inspection Act. The Act

forbids "any inspector, deputy inspector, chief inspector, or

other officer or employee of the United States authorized to

perform any of the duties prescribed by this subchapter" to

accept gratuities. 21 U.S.C. s 622 (1994) (emphasis added).

The district court, agreeing with appellee, concluded that the

statute is ambiguous as to whether it includes the Secretary

of Agriculture and, relying on several canons of construction,

determined that the Secretary was not covered.1 Before us,

appellee particularly emphasizes ejusdem generis and the

__________

1 At oral argument, counsel for appellee emphasized several

times that he had prevailed before the district court. That point

could be relevant only as an argument for deference, but the issues

before us are questions of statutory interpretation. Obviously, no

deference is appropriate.

avoidance of constitutional questions. Where a general term

follows a list of specific terms, the rule of ejusdem generis

limits the general term as referring only to items of the same

category. Accordingly, both appellee and the district court

have interpreted "other officer" to mean only those who

actually inspect meat. As for the avoidance canon, see Asso-

ciation of American Physicians and Surgeons v. Clinton, 997

F.2d 898, 906-11 (D.C. Cir. 1993), s 622 provides that a

person convicted under that section will be "summarily dis-

charged from office and shall be punished by a fine not less

than $1,000 nor more than $10,000 and by imprisonment [for]

not less than one year nor more than three years." Although

Espy is not subject to removal because he is no longer

Secretary of Agriculture, he somewhat imaginatively argues

that if he were still Secretary, the removal provision could not

be applied constitutionally to him. Congress would not have

intended an unconstitutional result, therefore he claims that

the Secretary must not be among the "other officers" to

whom the statute refers.

But before either ejusdem generis or the avoidance canon

applies, there must be ambiguity in the statute--and we see

none. The Secretary is certainly an "other officer authorized

to perform ... duties prescribed by this subchapter." To

name a few: "the Secretary shall cause to be made by

inspectors appointed for that purpose a postmortem examina-

tion and inspection of the carcasses and parts thereof of all

cattle" 21 U.S.C. s 604 (1994); "the Secretary shall cause to

be made a careful inspection of all cattle ... intended and

offered for export to foreign countries" 21 U.S.C. s 612

(1994); "the Secretary shall submit to [designated congres-

sional committees] a comprehensive and detailed written re-

port" 21 U.S.C. s 620(e) (1994); and the "Secretary shall,

from time to time, make such rules and regulations as are

necessary for the efficient execution of the provisions of this

subchapter" 21 U.S.C. s 621 (1994). The Act was passed in

response to Upton Sinclair's famous book The Jungle, see

United States v. Seuss, 474 F. 2d 385, 388 (1st Cir. 1973), and

seeks to ensure safe meat products. Espy may well be

correct in saying that the paradigm in Congress' mind was a

corrupt meat inspector engaged in the actual examination of

slaughterhouses; but a corrupt Secretary, who supervises all

Agriculture Department employees, obviously could cause an

even greater deleterious effect on meat. See Brogan v.

United States 118 S. Ct. 805, 809 (1998) ("[I]t is not, and

cannot be, our practice to restrict the unqualified language of

a statute to the particular evil that Congress was trying to

remedy."). Nor are we impressed by appellee's observation

that the Secretary's duties under the subchapter are not

specifically referred to as "duties," in contrast to the meat

inspector's tasks, which are identified in s 621 as inspecting

carcasses and "other duties." We think that distinction trivi-

al. All of appellee's attempts to restrict the word "duty" to

hands-on "meat inspection" are really quite labored. The Act

charges the Secretary with a host of tasks that fit comfort-

ably within the definition of "duty," which is "something that

one is expected or required to do by moral or legal obli-

gation." The Random House College Dictionary 411 (Re-

vised Ed. 1980). Although the Act never explicitly identifies

these responsibilities as "duties," it gives no indication that

the normal meaning of duty should not apply.2

Since we do not find the statute in the least bit ambiguous,

we have no need to employ, nor any legitimate purpose in

employing, canons of construction designed to reconcile con-

fusing language. Ejusdem generis only comes into play when

the general term in the list is so broad that it creates

ambiguity. Gooch v. United States, 297 U.S. 124, 128 (1936)

accord United States v. Mescall, 215 U.S. 26 (1909). For

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2 Appellee also insists that because he, "like all other Cabinet

members," is already covered by the general government bribery

provision found at 18 U.S.C. s 201 (1994), it is doubtful that

Congress intended to reach him through s 622. But it is neither

here nor there that the general bribery statute covers the Secretary

of Agriculture. Appellee does not dispute that the Meat Inspection

Act applies to meat inspectors, yet they are also covered by the

general bribery statute--which, contrary to Espy's implication,

regulates more than Cabinet officers. 18 U.S.C. s 201(a)(1) (defin-

ing the "public officials" within its ambit as any "officer or employee

or person acting for or on behalf of the United States").

example, in Cole v. Burns International Security Services,

105 F.3d 1465 (D.C. Cir. 1997), we applied the canon to a

provision of the Federal Arbitration Act exempting "contracts

of employment of seamen, railroad employees, or any other

class of workers engaged in foreign or interstate commerce."

9 U.S.C. s 1 (1994). There, the phrase "workers engaged in

foreign or interstate commerce" was sweeping enough to

include nearly every worker in the United States. Indeed, it

was so broad that a literal interpretation would have ren-

dered the preceding specific enumerations (seamen and rail-

road employees) mere surplusage. Here, by contrast, the

general term "other officer or employee authorized to per-

form duties prescribed by this subchapter" has set its own

limits--"duties prescribed by this subchapter"--so there is no

need to limit it further.

For the same reason, we need not elaborate on appellee's

constitutional argument. See Almendarez-Torres v. United

States, 118 S. Ct. 1219, 1228 (1998) ("[for the avoidance canon

to apply], the statute must be genuinely susceptible to two

constructions ...."); see also Edward J. DeBartolo Corp. v.

Florida Gulf Coast Bldg. and Constr. Trades Council, 485

U.S. 568, 575 (1988). It would not be uncalled for, however,

to observe that we think his constitutional argument is con-

siderably overdone.3 This removal provision is not the same

as the one held unconstitutional in Bowsher v. Synar, 478

U.S. 714 (1986). There, Congress itself maintained control

over removal. Here, Congress only disqualified someone

convicted under the Meat Inspection Act from continued

service in his or her government job. Although there are

constitutional limits to the qualifications Congress can impose

__________

3 Moreover, we cannot imagine any sitting Secretary facing the

provision in the way Espy envisions. He argues that, upon convic-

tion, the statute would require a judge to order the President to fire

the defendant. This is by no means clear from the statute. The

more likely interpretation is that the summary discharge provision,

as applied to any officer or employee, is merely a hortatory di-

rection from Congress to the President.

on presidential appointees, we have little doubt that Congress

could legitimately restrict Agriculture Department officers to

those not convicted under the Meat Inspection Act. See

Myers v. United States, 272 U.S. 52, 128 (1926) ("We see no

conflict between the [power to prescribe qualifications for

office or to give reasonable classification for promotion] and

that of appointment and removal, provided of course that the

qualifications do not so limit selection and so trench upon

executive choice as to be in effect legislative designation.").

And it is doubtful that a restriction on continued service is

any more constitutionally suspect than an initial appointment

restriction. See Public Citizen v. Dep't of Justice, 491 U.S.

440, 484-85 (1988) (Kennedy, J., concurring) (arguing that

removal, an implicit power, warrants less protection than the

appointment power, which is explicitly conferred by the Con-

stitution).4

II.

Count 39 of the Indictment alleges that when the Presi-

dent's Chief of Staff and Counsel questioned Espy about

whether he had received gratuities, Espy responded "there's

nothing else out there," although he knew that representation

to be untrue. The False Statement Statute in effect at the

time forbad false statements to be made "in any matter

within the jurisdiction of any department or agency of the

United States." 18 U.S.C. s 1001 (1994).5 The district court

held that the Executive Office of the President was not a

"department" and dismissed the count. The independent

counsel, urging reversal, argues that the statute uses the

__________

4 Espy thinks it particularly significant that no Secretary of

Agriculture has ever been prosecuted under the Meat Inspection

Act. We are thoroughly unimpressed with this reasoning. The

Chief Justice of the United States has never been prosecuted for

grand theft larceny, but that does not mean that larceny laws do not

apply to him.

5 Notably, s 1001 was amended in 1996 to cover any false

statement made within the jurisdiction of the "executive, legislative,

or judicial branch of the Government." (Emphasis added.)

word department to refer to the whole executive branch (as in

"executive department") or, alternatively, that the Executive

Office of the President should be regarded as an agency.

In Title 18, the term "department" is defined as "one of the

executive departments enumerated in section 1 of Title 5,

unless the context shows that such term was intended to

describe the executive, legislative, or judicial branches of the

government." 18 U.S.C. s 6 (1994) (emphasis added). The

Supreme Court has observed that s 6 treats the expansive

reading of "department" as the exception. Hubbard v. Unit-

ed States, 514 U.S. 695, 700-01 (1995). In Hubbard, the

Court held that the judicial branch is not a "department"

under s 1001; in so doing, it overruled United States v.

Bramblett, 348 U.S. 503 (1955), where, applying s 1001 to the

legislative branch, the Court had broadly interpreted "depart-

ment" to describe the "executive, legislative, and judicial

branches of the Government." Id. at 509. Appellant would

have us limit Hubbard to a holding that under s 1001,

department may not refer to the "judicial department" but

can refer to the "executive department." We do not think

that reading of either Hubbard or the statute is feasible.

Nothing in the grammatical context of s 1001 indicates that

Congress was using the word "department" as a synonym for

"branch."

Appellant's contention that the Executive Office of the

President is an "agency" within the meaning of s 1001 is not

so easily discarded. Section 6 provides that "[t]he term

'agency' includes any department, independent establishment,

commission, administration, authority, board or bureau of the

United States or any corporation in which the United States

has a proprietary interest, unless the context shows that the

term was intended to be used in a more limited sense."

Although acknowledging that none of these terms is an

obvious fit with the Executive Office of the President, the

appellant argues that it can qualify as an "authority"; in any

event, he says, the word "includes" renders the list illustra-

tive rather than exhaustive, and the tone suggests an expan-

sive interpretation. Espy, on the other hand, would have us

look to the Freedom of Information Act (FOIA), which also

uses the term "agency." An entity within the Executive

Office does not qualify as an "agency" unless it exercises

"substantial independent authority," Soucie v. David, 448

F.2d 1067, 1073-76 (D.C. Cir. 1971); see Kissinger v. Report-

ers Comm. for Freedom of the Press, 445 U.S. 136, 156 (1980),

which, of course, would not be true of either the Chief of Staff

or the President's Counsel. And it has never been thought

that the whole Executive Office of the President could be

considered a discrete agency under FOIA.

Espy's analogy to FOIA does not work. The Supreme

Court defined "agency" narrowly under FOIA on the assump-

tion that Congress would not have wished to chill discussion

between close presidential advisors. It is by no means obvi-

ous that Congress, for analogous policy reasons, would have

wished a similarly narrow definition of agency for purposes of

s 1001. Indeed, the independent counsel argues that a broad

definition would more likely serve the policy of this statute by

protecting the Executive Office against false statements in

the course of its investigations.

We think the key to deciding whether "agency" should be

read as referring to the entire Executive Office of the Presi-

dent is the word "jurisdiction." Recall that s 1001 reaches

matters "within the jurisdiction of any department or agen-

cy." (emphasis added). "Jurisdiction" implies a limited area

of authority. The jurisdiction of the Environmental Protec-

tion Agency, for example, can be distinguished from the

jurisdiction of the Securities and Exchange Commission.

Each has a realm in which it acts. It would be anomalous,

however, to refer to the "jurisdiction" of the Executive Office

of the President--which, of course, is coextensive with the

President's authority. We do not normally refer to the

President's executive authority under the Constitution as his

"jurisdiction" because--even for those with a relatively for-

malist view of separation of powers--the executive and legis-

lative authority are not viewed as separate "jurisdictions."

The independent counsel relies on United States v. Rodg-

ers, 466 U.S. 475 (1984), where the Supreme Court, reversing

the Court of Appeals, said that jurisdiction meant only "the

power to act." There, however, the Court of Appeals had

held s 1001 inapplicable to the FBI because it attributed a

quasi-judicial meaning to the word "jurisdiction" and the FBI

"had no power to adjudicate rights, establish binding regula-

tions, compel the action or finally dispose of the problem

giving rise to the inquiry." Id. at 478 (quoting Friedman v.

United States, 374 F.2d 363, 368 (1967)). Although rejecting

the quasi-judicial definition, the Supreme Court's reasoning is

consistent with the notion that jurisdiction implies limited

authority. The Court said:

The most natural, nontechnical reading of the statutory

language is that it covers all matters confided to the

authority of the agency or department. Thus, Webster's

Third New International Dictionary broadly defines "jur-

isdiction" as, among other things, the "limits or territory

within which any particular power may be exercised:

sphere of authority." A department or agency has juris-

diction, in this sense, when it has the power to exercise

authority in a particular situation. Understood in this

way, the phrase "within the jurisdiction" merely differen-

tiates the official, authorized functions of an agency from

matters peripheral to the business of that body.

Id. at 479 (citations omitted). The problem with appellant's

interpretation is that nothing is peripheral to the business of

the President, so the phrase "within the jurisdiction" does not

draw any lines. One might say that the phrase differentiates

between the President's personal business and that related to

his office. But the line between "official" and "personal"

distinguishes "governmental" from "private," while jurisdic-

tional lines more aptly categorize things as within the prov-

ince of one or another governmental body. Here, everything

is within the province of the same governmental body. We

therefore hold that even if the Executive Office of the Presi-

dent is an "agency" under s 6, it cannot be considered an

"agency" for purposes of s 1001.

* * * *

Accordingly, we remand to the district court and order

Counts 26-28 reinstated.

Buckley, Senior Judge, concurring: The word "unambigu-

ous" has ambiguities of its own. Thus, unambiguous lan-

guage chosen by Congress to address a particular situation

will at times have consequences that could not have been

intended by its draftsmen; and such unintended conse-

quences may engender ambiguity where none at first ap-

pears. In this case, the court is correct in stating that the

language of section 622 clearly applies to a Secretary of

Agriculture by virtue of his being an "officer ... of the

United States authorized to perform ... duties described by

this subchapter." 21 U.S.C. s 622. Yet the section's sum-

mary dismissal sanction, as applied to a cabinet officer, would

appear to exceed Congress's authority. It is in such circum-

stances that courts will invoke the doctrine of judicial sever-

ability. See, e.g., Robert Dollar Co. v. Canadian Car &

Foundry Co., 115 N.E. 711, 713 (N.Y. 1917) (holding that

"where a single section of a statute attempts or purports to

cover two entirely distinct and separable classes of cases, one

properly and the other improperly, ... [the section] may be

upheld as to the class which constitutionally may be thus

covered, even though condemned as to the other"). This is a

judicial remedy with which the drafters of the 1907 Meat

Inspection Act were familiar. Unlike many criminal cases in

which courts have rejected application of the doctrine of

severability, cf. United States v. Raines, 362 U.S. 17, 22

(1960) ("Perhaps cases can be put where the application [of

avoidance and severability doctrines] to a criminal statute

would necessitate such a revision of its text as to create a

situation in which the statute no longer gave an intelligible

warning of the conduct it prohibited."), severance of the

dismissal penalty would not undermine the integrity of the

remainder of section 622 or "hamper the ability of '[e]very

man ... to know with certainty when he is committing a

crime.' " United States v. Reese, 92 U.S. 214, 220 (1875)

(citation omitted).

I agree with the court's rejection of Espy's argument that,

because Congress had no power under the Constitution to

order the dismissal of a cabinet officer, the phrase "other

officer[s]" may not be construed to include the Secretary.

Whatever ambiguity may be created by virtue of the section's

inclusion of what may be an impermissible penalty as applied

to a particular person is cured by the doctrine of severability,

which would allow a court to withhold the dismissal sanction

while enabling it to apply the remaining ones to a Secretary

convicted of violating the section.

Because I believe this to be the proper basis for disposing

of Espy's avoidance argument, I disassociate myself from the

court's dicta, on pages 5-6, concerning Congress's putative

authority to legislate conditions for a cabinet officer's continu-

ance in service and its suggestion, in footnote 3, that the

summary dismissal provision might be construed as merely

hortatory.