United States v. Victoria L. Ray

CLIFTON, Circuit Judge,

concurring in part and dissenting in part:

Mark Twain, an always insightful observer of human nature, once said that “work consists of whatever a body is obliged to do.” Of course, he also said that “work is a necessary evil to be avoided.” Most people possess a natural tendency to embrace Twain’s latter observation by shifting the burden to others, when they can. In this instance, however, the recipient of the assignment is unhappy about it and has declined to take it on without a fight, leaving us to decide whether the burden can be shifted.

Despite the explicit obligations placed by the statute upon district courts, and district courts alone, to “submit” sentence reports to the Sentencing Commission, the district court here ordered the U.S. Attorney’s office to assemble and compile the sentence reports of defendants in all criminal cases, leaving the district court with the relatively minor task of mailing the reports. The majority upholds the district court’s order by interpreting the “submit” requirement as either not explicitly requiring the district court to assemble and compile sentence reports, or in the alternative, as implicitly authorizing the district court to slough all of the associated assembling and compiling tasks off to the U.S. Attorney’s office. Though shifting our obligations to others helps us to avoid Twain’s evil — having to do the work ourselves— sometimes it is necessary to accept an imposed obligation for what it is: a work assignment to be done. Because I believe that the majority’s interpretation conflicts with the text of the statute, the history of the statute and of the Sentencing Commission’s interpretation of the prior version of the statute, and the constitutional avoidance doctrine, I respectfully dissent from the conclusion and from Section IV of the majority opinion. 1

At the outset, we need to recognize that what this case presents is primarily a question of statutory interpretation. There are constitutional implications lurking in the background, including a question *998 about the authority of the court to assign this task to an agency of the executive branch. I will note that concern below, for I believe the constitutional avoidance doctrine supports the result I would reach. It is important to recognize, however, that there is not a serious argument here that what Congress has enacted is unconstitutional. The district court.in this case did not hold that 28 U.S.C. § 994 (w)(l) was unconstitutional or that Congress did not have the power to assign to the district court the task set forth in that statute. The Supreme Court’s decision in Mistretta v. United States, 488 U.S. 361, 388-89 , 109 S.Ct. 647 , 102 L.Ed.2d 714 (1989), made clear that Congress could assign administrative responsibilities to courts without running afoul of the separation of powers doctrine.

If the question is one of statutory interpretation, then our goal should be to interpret the statute consistently with congressional intent. “We interpret a federal statute by ascertaining the intent of Congress and by giving effect to its legislative will." Hernandez v. Ashcroft, 345 F.3d 824, 838 (9th Cir.2003) (quotation marks and citations omitted). If the words used do not seem sufficiently clear to us, then we must determine what Congress intended when it enacted the statute. As explained below, I cannot conclude that Congress intended to authorize the court to limit itself to mailing the report to Washington, while foisting the remainder of the work onto the U.S. Attorney. If that was what Congress intended, it would have written the statute differently.

A. Statutory Text

The statute states that the “Chief Judge of each district court shall ensure that, within 30 days following’ entry of judgment in every criminal case, the sentencing court submits to the Commission a written report of the sentence.” 28 U.S.C. § 994 (w)(l)- (emphasis added). The “sentencing court” involved here is the U.S. District Court for the District of Montana. Because § 994(w)(l) is silent on any prefatory compilation or assembly tasks, the majority interprets the “submit” provision as only requiring the district court to mail the sentence reports to the Sentencing Commission. The district court is permitted to require the U.S. Attorney’s office to do everything else, for every case. That interpretation is not a logical reading of the statute. It is contrary to the plain meaning of “submit” as used within the PROTECT Act’s framework and is in tension with other provisions of the Act re-, quiring the Department of Justice (DOJ) to “submit” similar reports.

To “submit” means to “present or propose to another for review, consideration, or decision.” MerriamWej3stee’s Collegiate DICTIONARY, Tenth Edition 1169 (1993); see also The AmeRican Heritage Dictionary Of The English Language: Fourth Edition (2000) (defining “submit” as “[t]o commit (something) to the consideration or judgment of another.”). The majority’s interpretation of the “submit” requirement as only encompassing the relatively simple and undemanding task of mailing the reports effectively "jettisons all associated tasks involved with “presenting” the sentence reports. Courts have interpreted the word “submit” to have a broader meaning than the mere mailing of information. See Withers v. U.S. Postal Serv., 417 F.Supp. 1 , 6 n. 4 (W.D.Mo.1976) (“Assuming the general purpose of the appellate procedures is to promote the prompt resolution of employment disputes (to the benefit of both employee and employer),[the] interpretation of ‘submits’ to mean the mere act of mailing the letter of appeal would often result in delay and confusion.”); Am. Pac. Roofing Co. v. United States, 21 Cl.Ct. 265, 267 (1990) (“The term *999 ‘submit’ means ‘to commit to another (as for decision or judgment)’.... ‘Submit’ is not entirely synonymous with the words ‘address’ or ‘directly send.’ ”)

As the majority itself notes, where a statute confers powers or duties in general terms, all powers and duties incidental and necessary to make such legislation effective are included by implication. 2B Norman J. Singer, Statutes And Statutory Construction 388, § 55.04 (6th ed.2000). Given that the statute is otherwise silent on the associated tasks of assembling and compiling the reports, interpreting the submit requirement not to implicitly contain these duties would render § 994(w)(l) effectively meaningless: one cannot “submit” the sentence reports without first assembling and compiling them. See United States v. Powell, 6 F.3d 611, 614 (9th Cir.1993) (noting that it is a “basic rule of statutory construction that one provision should not be interpreted in a way which ... renders other provisions of the same statute inconsistent or meaningless” (internal quotation marks and citation omitted)). Indeed, the majority acknowledges that the sentencing reports will have to be prepared or assembled so that it will be possible to submit them. See Majority Op. at 990-91.

The majority’s interpretation of the “submit” requirement is further undermined by the fact that the PROTECT Act imposes a separate though similar obligation upon the DOJ to “submit a report [regarding sentencing ] to the Committees on the Judiciary of the House of Representatives and the Senate.” PROTECT Act, § 401(Z)(2), 117 Stat. 675 (codified at 18 U.S.C. § 3553 ). 2 That Congress chose the same language — the word “submit” — to instruct the courts and the DOJ to fulfill similar reporting obligations suggests that Congress intended the word “submit” to encompass all associated prefatory tasks with the “submit” requirement. Indeed, if “submit” only entailed mailing the reports, who would assemble and compile the reports for the DOJ? Employees of the DOJ, of course. While Congress could have specified “assembling” or “compiling” tasks in the statute, its failure to do so is not a reason to believe that it intended the word “submit” to give the district court the unfettered discretion to assign such tasks outside the judiciary. Why would Congress go to the trouble of specifying who should mail the report to the Sentencing Commission if that is all that “submit” means? Why would it matter to Congress who mailed the report, if Congress did not care who put it together? The majority’s narrow definition of the word “submit” is not a plausible interpretation of the statute.

The majority’s interpretation also contravenes established principles of statutory interpretation. The PROTECT Act’s imposition of separate reporting requirements upon the courts and the DOJ demonstrates that Congress is not only capable of distinguishing between the two entities, *1000 but that if- it had intended for the U.S. Attorney to compile the .reports and the district court merely to mail them, it could have clearly said so in the statute. See Robinson v. Shell Oil Co., 519 U.S. 337, 341 , 117 S.Ct. 843 , 136 L.Ed.2d 808 (1997) (“The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.”). One established canon of statutory interpretation is expressio unius est exclusio alterius, the expression of one thing implies the exclusion of others. Because Congress listed “sentencing courts” as the exclusive actor responsible for complying with the statutory provision, we should presume that it made a decision to assign the duties imposed by § 994(w)(l) to district courts, and not to the DOJ. See Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 970 (9th Cir.2003) (noting That the canon of “ ‘expressio unius est exclusio alterius ... as applied to statutory interpretation creates a presumption that when a statute designates certain persons, things, or manners of operation, all omissions should be understood as exclusions.’ ”) (quoting Boudette v. Barnette, 923 F.2d 754, 756-57 (9th Cir.1991)). Indeed, “a situation in which a statute authorizes’ specific action and designates a particular party empowered to take it is surely among the least appropriate in which to presume nonexclusivity.” Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 , 120 S.Ct. 1942 , 147 L.Ed.2d 1 (2000) (citation and quotation marks omitted). Where a statute specifically names the parties granted the power to act,, “such parties only may act.” Id. at 7 , 120 S.Ct. 1942 (emphasis added). The current case is somewhat different, in that we are identifying which party is assigned a responsibility, rather than which is given the power to take certain action, but the broader principle is the same. When Congress assigned this responsibility, it referred only to the district court and not to any executive agency.

The majority’s contention that the principle expressio unius est exclusio alterius could just as reasonably support the proposition that if Congress cared how the sentencing court prepared or compiled the reports, it would have expressly assigned those duties to the court, misses the mark. This argument incorrectly presumes that the word “submit” only entails the mailing of the sentence reports. Though it is possible to read the words that way, it is implausible that this is what Congress intended. Given that the “submit” requirement necessarily entails all, associated tasks with mailing the sentence reports, a more accurate application of expressio uni-us est exclusio alterius is that if Congress desired the U.S. Attorney’s office to do the majority of such tasks, it would have clearly said so in the statute.

Nor does the statutory text support the majority’s alternative argument that even if the “submit” requirement entails associated prefatory tasks, the district court had the implicit authority to compel the U.S. Attorney’s office to assist it. Section 994(w)(l) instructs the Chief Judge of each district court to “ensure” that “the sentencing court” complies with the reporting requirements. This phrase cannot reasonably be read to empower district courts to impose the bulk of the responsibility on the U.S. Attorney.

If Congress simply intended that the Chief Judge, or the district court, ensure that .a report was submitted for each sentence, leaving it up to the Chief Judge or the court to determine how best to do that, the statute could have been worded that way, but that is not what Congress enacted. The majority’s interpretation *1001 might also be viable if the statute read, for instance, that “the Chief Judge of each district court shall ensure that a written report of sentence is submitted to the Commission within 30 days following entry of judgment in every criminal case.” But that is not what the law says, either. The statute does not just say that the Chief Judge or the court shall ensure that the reports are sent. It says that the Chief Judge shall ensure that the sentencing court shall submit the reports. The judicial branch is referred to twice, while there is no reference at all to any other agency or to the executive branch. To draw from that statute authority to devise a system that puts almost all of the work on the executive branch — everything except dropping the envelope in the mailbox — is a highly unlikely interpretation of what Congress intended.

Though it is true that where a statute confers powers or duties in general terms, all powers and duties incidental and necessary to make such legislation effective are included by implication, the phrase “shall ensure” cannot be fairly interpreted as conferring broad, unlimited authority on the Chief Judge of each district to require another independent branch of government, unmentioned in § 994(w)(l), to prepare the entire sentence report for the court, on a routine basis, in each and every case. 3 Indeed, none of the cases cited by the majority in support of this proposi tion —Thomas v. INS, 35 F.3d 1332, 1339 (9th Cir.1994), United States v. Jones, 204 F.2d 745, 754 (7th Cir.1953), In re Permian Basin Area Rate Cases, 390 U.S. 747, 776-77 , 88 S.Ct. 1344 , 20 L.Ed.2d 312 (1968) — involve a government actor, explicitly identified in the statute, shifting its statutorily required duties to another actor, unmentioned in the statute.

B. The Prior Version of Section 994(w) and the 2003 Amendment

The majority inappropriately disregards a widely accepted interpretation held by the Sentencing Commission of a prior version of § 994(w) that sensibly concluded that those entities that are explicitly identified in the statute to “submit” sentence reports are expected to compile, assemble, and mail the reports. The earlier version of § 994(w) provided, in pertinent part, that “[t]he appropriate judge or officer shall submit to the Commission in connection with each sentence imposed ... a written report of the sentence.” 28 U.S.C. § 994 (w) (2000). The Sentencing Commission interpreted the “appropriate judge or officer” language of the earlier version of § 994(w) to refer solely to district court judges and other “court personnel.” See Memorandum from Administrative Office of the United States Courts and the Sentencing Commission, to Chief Judges, United States District Courts; District Court Executives; Clerks, United States District Courts; Chief Probation Officers (March 12,1997) [Memorandum of Under standing,] (“[Pjursuant to 28 U.S.C. § 994 (w), court personnel are required to submit to the United States Sentencing *1002 Commission certain sentencing information and documents”) (emphasis added). In detailing methods of compliance with § 994(w)’s reporting requirements, the Sentencing Commission has consistently interpreted the provision to apply to the court personnel of the probation offices of each judicial district. See U.S. SENTENCING Commission 2002 Annual RepoRt 39 (2002) (“Pursuant to its authority under 28 U.S.C. § [ ] 994(w) ... the Commission requested that the probation office in each judicial district submit the following documents on every offender sentenced under the guidelines”) (emphasis added) U.S. Sentencing Commission 2001 Annual RepoRt 41 (2001) (same); U.S. Sentencing Commission 2000 Annual Report 39 (2000) (same); U.S. SENTENCING COMMISSION 1999 ANNUAL REPORT 39 (1999) (same); U.S. Sentencing Commission 1998 Annual Report 35 (1998) (same); U.S. Sentencing Commission 1997 Annual Report 33 (1997) (same); U.S. SENTENCING COMMISSION 1996 Annual Report 31 (1996) (same); U.S. Sentencing Commission 1995 Annual Report 33 (1995) (same). As of 1997, “most” districts complied with this request. See Memorandum of Understanding 4

The majority fails to point to any evidence that a district court or probation office had a policy of delegating the compiling tasks to U.S. Attorneys’ offices or any other entity not explicitly identified in the prior version of § 994(w). 5 Congress’s amendment of § 994(w) without explicitly altering or repealing this existing interpretation suggests that Congress intended to embody that practice. See Lindahl v. Office of Pers. Mgmt., 470 U.S. 768 , 783 n. 15, 105 S.Ct. 1620 , 84 L.Ed.2d 674 (1985) (“Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it reenacts a statute without change. So too, where, as here, Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute” (citations and quotation marks omitted)). The Supreme Court has emphasized that the presumption applies not only to adoption of the interpretation, but also to awareness of its existence. See Lorillard v. Pons, 434 U.S. 575, 581 , 98 S.Ct. 866 , 55 L.Ed.2d 40 (1978) (“Congress normally can be presumed to have had knowledge of the [administrative] interpretation given to the incorporated law, at least insofar as it affects the new statute” (emphasis added)).

*1003 As for whether it is reasonable to presume Congressional awareness of an administrative interpretation of a statute, the U.S. Sentencing Commission Annual Reports put Congress on notice as well as administrative regulations, as to which that presumption is well-established. See Bragdon v. Abbott, 524 U.S. 624, 631-32 , 118 S.Ct. 2196 , 141 L.Ed.2d 540 (1998) (applying the presumption to published regulations); Conn. Dep’t of Income Maint. v. Heckler, 471 U.S. 524, 531-32, n. 17 , 105 S.Ct. 2210 , 85 L.Ed.2d 577 (1985) (published regulations consistent with earlier less formal interpretations); Palila v. Haw. Dep’t of Land & Natural Res., 852 F.2d 1106 , 1109 n. 6 (9th Cir.1988) (published administrative regulations). The Annual Reports are actually distributed to members of Congress, and Congress itself specifically requested the portion of these reports analyzing and interpreting 28 U.S.C. § 994 (w). See U.S. Sentencing Commission 2001 Annual Report 17 (2001) (noting that the “Commission also supplied] numerous Commission publications and resource materials to members of Congress and their staffs”); 28 U.S.C. § 994 (w) (earlier version) (“The Commission shall submit to Congress at least annually an analysis of these reports and any recommendations for legislation that the Commission concludes is warranted by that analysis.”). It is certainly reasonable to assume that Congress actually read the materials describing the implementation of § 994(w) that it had specifically requested.

Though there is no legislative history regarding the 2003 amendment, it can be reasonably inferred that a driving force behind the amendment was to improve compliance with the reporting requirements of § 994(w). Prior to the 2003 amendment, some circuits had failed to provide complete sentence reports as required by the statute in as many as 17 per cent of the cases. See, e.g., U.S. SENTENCING Commission’s SouRCe-Boox Of FedeRAL SENTENCING STATISTICS: DOCÜMENT SuBMISsion Rate Of Eaoh Cirouit Anb District, Fiscal Year 2001 (2001) available at http://www.ussc.gov/ANNRPT/2001/ tablel.pdf (First Circuit, 10.7%. of cases; Fourth Circuit, 17.3%; Ninth Circuit, 14.5%; Tenth Circuit, 11.6%).

Congress could have turned to the DOJ, including the U.S. Attorneys’ offices across the country, to address that problem. The government is necessarily a party to every case which results in a criminal sentence, so Congress could have assigned the responsibility for preparing and sending the required reports to the DOJ. As noted above, élsewhere in the PROTECT Act the Attorney General was handed the task of submitting certain reports, so there can be no doubt that Congress was aware of the DOJ as a possibility. Alternatively, Congress could have decided that the courts and the prosecutors should be made jointly responsible for getting the sentence reports in, or should divide the task between them, or some other variation. But Congress did none of those things. Instead it replaced the reference to the “appropriate judge or judicial officer” in the previous version of the statute with two separate references to the judiciary, requiring the “Chief Judge” of each district to ensure that the “sentencing court” submits the sentence reports. Congress presumably decided that the way to improve accountability and compliance with § 994(w) was to leave the submission responsibilities centralized within the judiciary and to explicitly call upon the Chief Judge of each district to ensure that the job got done. The majority’s interpretation of the statute, permitting the district court to shift the central duties to the U.S. Attorney’s office, is actually a step in the other direction and cannot be squared with the 2003 amendment to the statute.

*1004 C. The Constitutional Avoidance Doc- ■ trine

Given that the majority expends a considerable amount of ink arguing that Standing Order DWM-28’s shifting of administrative tasks from district courts to the U.S. Attorney’s office does not violate the Constitution, it is evident that this case raises non-frivolous constitutional questions. The constitutional avoidance doctrine instructs us to interpret § 994(w)(l) in a manner that avoids difficult constitutional issues. See Jones v. United States, 526 U.S. 227, 239 , 119 S.Ct. 1215 , 143 L.Ed.2d 311 (1999) (“[Wjhere a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided,[a court’s] duty is to adopt the latter.”). The Ninth Circuit has referred to this rule as a “paramount principle of judicial restraint.” United States v. Restrepo, 946 F.2d 654, 673 (9th Cir.1991). Similarly, the “clear statement rule” requires that Congress expressly and unequivocally state its intention to alter core constitutional balances (such as those that inhere in the separation of powers doctrine), something that Congress has clearly not done here. See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 461 , 111 S.Ct. 2395 , 115 L.Ed.2d 410 (1991) (“[I]n traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.”).

The majority’s construction of § 994(w)(l) to give the district court carte blanche to delegate the bulk of its duty under the statute to the U.S. Attorney’s office inappropriately forces the court to confront constitutional issues, contravening this fundamental rule of statutory interpretation.

D. Conclusion

I am sympathetic to the situation faced by the district court in Montana. Each court has to deal with different problems. The geographic spread of the District of Montana surely complicates its administrative task. . The entire judiciary is facing a serious budget crunch due to inadequate appropriations, making the situation today probably even more difficult for the district court than it was when the Standing Order was adopted. It should not be surprising that the assignment by Congress of administrative burdens without sufficient funding to maintain operations will leave Chief Judges and court administrators grumbling about unfunded mandates in terms that may not be very polite. But that does not give us leave to interpret this statute in a way that Congress did not intend, even though it would be helpful for the courts.

The statute explicitly obligates district courts, and district courts alone, to “submit” sentence reports to the Sentencing Commission. Because the majority’s interpretation conflicts with the text of the statute, the history of the statute, and the constitutional avoidance doctrine, I am regrettably unable to join my colleagues in Section TV of the majority opinion. I would instead reverse the July 29, 2003 order and remand with instructions to vacate Standing Order DWM-28.

. I agree that our court has jurisdiction to entertain this appeal and join Judge Graber's opinion with regard to that issue (discussed in Section II of her opinion). I also concur in her description of the background of the case (Section I) and the standard of review (Section III).

. Under certain circumstances, the statute requires the Attorney General to submit a report, setting forth: "(i) the case; (ii) the facts involved; (iii) the identity of the district court judge; (iv) the district court's stated reasons, whether or not the court provided the United States with advance notice of its intention to depart; and (v) the position of the parties with respect to the downward departure, whether or not the United States has filed, or intends to file, a motion for reconsideration.” PROTECT Act, § 401(Z)(2), 117 Stat. 675 (codified at 18 U.S.C. § 3553 ). While the procedures recently adopted by the Justice Department do not require ongoing reports to Congress, they nonetheless add substantial new internal reporting obligations. See § 9-2.170B of U.S. Attorneys' Manual (rev. July 28, 2003) (available at www.usdoj.gov/usao/ eousa/foia_reading_room/usarn/title9).

. I do not believe that it would be beyond the court's authority to require assistance from the U.S. Attorney — or any other party in litigation before it — in appropriate individual cases. If, for example, the clerk's office was unable to locate or obtain a particular file on a timely basis, the court could properly order a party to a case, including the government, represented by the U.S. Attorney, to provide copies of documents or otherwise to assist. Since the U.S. Attorney's office presumably keeps a complete file on all aspects of a prosecution, it would be the logical party to enlist if such assistance were needed, on a case-by-case basis, in compiling the sentence reports. But an order applied that compels the U.S. Attorney's office to complete the reports in all cases is not, in my opinion, a reasonable interpretation of § 994(w)(l).

. A 1997 Memorandum of Understanding between the Administrative Office of the U.S. Courts and the Sentencing Commission noted that ''[m]ost districts” complied with § 994(w) by "askfing] the probation office to submit the sentencing documents.” Memorandum of Understanding.

. The majority does note that the 1997 Memorandum of Understanding states that "the Chief Judge may want to meet with the United States Attorney's office and others to decide on the most efficient way to submit” information. This Memorandum of Understanding, however, notably limited such instances to those "where the probation office is not involved in the proceeding” and where there are "changes to the judgment that result from, for example, Rule 35 motions, retroactive amendment motions, post-conviction relief motions, and resentencing on remand from an appellate court.” Memorandum of Understanding. As described above, I also read § 994(w)(l) to permit the occasional, ad hoc reliance on U.S. Attorney’s offices in compiling the reports where necessary, as in the above contexts. My principal disagreement lies with the categorical approach that the majority has taken in upholding Standing Order DWM-28. In any event, despite this internal memorandum, the U.S. Sentencing Commission as recently as 2002 publicly requested in its Annual Report that the probation office of each district submit the sentence reports.