January 23, 2008
Supremes Fight About When Text Supports Use of Noscitur and Ejusdem Canons
In Ali v. Fed. Bureau of Prisons, 2008 WL 169359 (Jan. 22, 2008), the court confronted a portion of a statute, the Federal Torts Claim Act that provided an exception to the waiver of sovereign immunity with respect to "claim[s] arising in respect of the assessment or collection of any tax or customs duty, or the detention ofany goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer." 28 U. S. C. § 2680(c). At issue was whether this exception applied only to "officers of customs or excise" or to "any" law enforcement officer, period. The majority, in a 5-4 opinion written by Justice Thomas, held that the phrase "any other law enforcement officer" was unamibiguously broad and rejected application of both ejusdem generis and noscitur a sociis to narrow the meaning down to law enforcement officers that are like customs officers.
It's a fascinating case. Thomas prevailed in concluding that because there were not a list of specifics followed by a more general "catch-all," that ejusdem generis did not apply; likewise, because there was only one specific item -- not several -- the meaning of "any other law enforcement officer" was not influenced by the company it kept. In short, Thomas focused on the fact that "any" law enforcement officer had to mean more than only customs officers.
In dissent, Justice Kennedy (for himself and Souter and Breyer), argued that Thomas failed to show "respect for the text." Not only did he disagree with the result, he argued that the case was "troubling... for the analysis it employs." In part, Justice Kennedy wrote:
This is not to suggest that the Court's reading is wholly impermissible or without some grammatical support. After all, detention of goods is not stated until the outsetof the second clause and at the end of the same clause the words "any other law enforcement officer" appear; so it can be argued that the first and second clauses of the provisionare so separate that all detentions by all law enforcementofficers in whatever capacity they might act are covered.Still, this ought not be the preferred reading; for betweenthe beginning of the second clause and its closing reference to "any other law enforcement officer" appears another reference to "officer[s] of customs or excise," this time in the context of property detention. This is quitesufficient, in my view, to continue the limited scope of the exception. At the very least, the Court errs by adopting arule which simply bars all consideration of the canons of ejusdem generis
In addition to joining Justice Kennedy's, Justice Breyer (with Stevens) wrote an additional dissent. He also wrote that the rejection of noscitur and ejusdem isolated the text too much. He wrote, in part:
In this case, not only the immediately surroundingwords but also every other contextual feature supports JUSTICE KENNEDY ’s conclusion. The textual context includes the location of the phrase within a provision thatotherwise exclusively concerns customs and revenue duties.
He then turned to the text's history and other indicia of meaning.
It is quite a neat case, and one that reinforces text and denies use of the interpretive canons.
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