finding that a statute imposed “a host of tasks that fit comfortably within the definition of ‘duty’ ” despite the fact that the statute did not use that specific term, and defining duty as “something that one is expected or required to do by moral or legal obligation”
How later courts described this case
- finding that a statute imposed “a host of tasks that fit comfortably within the definition of ‘duty’ ” despite the fact that the statute did not use that specific term, and defining duty as “something that one is expected or required to do by moral or legal obligation”
- explaining that because the EOP is an umbrella organization, “it has never been thought that the whole Executive Office of the President could be considered a discrete agency under FOIA”
- recognizing that the D.C. Circuit has declined to consider EOP as a whole to be an agency under FOIA
- finding allegations of quid pro quo or selling of one’s office unnecessary to support charges of honest services fraud
Written by the judges who cited it.
The opinion
BUCKLEY, Senior Judge,
concurring:
The word “unambiguous” has ambiguities of its own. Thus, unambiguous language 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 consequences may engender ambiguity where none at first appears. 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. § 622 . Yet the section’s summary dismissal sanction, as applied to a cabinet officer, would appear to exceed Congress’s authority. It is in such circumstances that courts will invoke the doctrine of judicial severability. See, e.g., Robert Dollar Co. v. Canadian Car & Foundry Co., 220 N.Y. 270 , 115 N.E. 711, 713 (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 sever-ability, cf. United States v. Raines, 362 U.S. 17, 22 , 80 S.Ct. 519 , 4 L.Ed.2d 524 (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.’ ” *1375 United States v. Reese, 92 U.S. 214, 220 , 23 L.Ed. 563 (1875) (citation omitted).
I agree with the court’s rejection of Esp/s argument that, because Congress had no power under the Constitution to order the dismissal of a cabinet officer, the phrase “other offieer[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 page 1372, concerning Congress’s putative authority to legislate conditions for a cabinet officer’s continuance in service and its suggestion, in footnote 3, that the summary dismissal provision might be construed as merely hortatory.