18 March 2013

To repeal, or not to repeal: How clear must you be?

This is one of a series of posts about Justice Antonin Scalia and Bryan Garner's Reading Law: The Interpretation of Legal Texts. For similar posts, click here.

33. Presumption Against Implied Repeal. Repeals by implication are disfavored--"very much disfavored." But a provision that flatly contradicts an earlier-enacted provision repeals it  The expression of one thing implies the exclusion of others (p. 327).

Scalia and Garner open with a quote from Justice Thomas's opinion in J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int'l, Inc., 534 U.S. 124, 142 (2001):
The rarity with which [the Court has] discovered implied repeals is due to the relatively stringent standard for such findings, namely, that there be an irreconcilable conflict between the two federal statutes at issue.
Statutes should be repealed explicitly, but when it is clear that they conflict, the later repeals the former implicitly.

Without citing this canon, a recent Supreme Court decision demonstrated an example of a statutory repeal. In Levin, the case involved the interplay between the Federal Tort Claims Act (enacted in 1946) and the Gonzalez Act (enacted in 1976). As I wrote in my blog post:
...The Federal Tort Claims Act waives the government's sovereign immunity in certain circumstances, primarily when someone acting in their capacity on behalf of the United States causes damage. However, certain torts, such as battery, are exempted from this waiver. So under the FTCA, someone cannot sue the government for battery by someone acting on behalf of the United States. On the other hand, The Gonzalez Act provides that this particular exemption doesn't apply to "any cause of action arising out of a negligent or wrongful act or omission in the performance of medical...functions." The question in this case was whether Levin's lawsuit could be brought against the United States for battery by his military doctor acting within the scope of his employment. In a unanimous decision, the Supreme Court ruled that the Gonzalez Act effectively repealed the exemption in the FTCA for these particular circumstances. As a result, Levin's claim can go forward...
The relevant portion of the Gonzalez Act reads as follows (emphasis is mine):

(e) For purposes of this section, the provisions of section 2680 (h) of title 28 [the FTCA] shall not apply to any cause of action arising out of a negligent or wrongful act or omission in the performance of medical, dental, or related health care functions (including clinical studies and investigations).

The Court found that this was an easy choice (emphasis is mine):

Section §1089(e)’s operative clause states, in no uncertain terms, that the intentional tort exception to the FTCA, §2680(h), “shall not apply...”

Justice Ginsburg concludes the Supreme Court's opinion as follows:
For the reasons stated, we hold that the Gonzalez Act direction in 10 U. S. C. §1089(e) abrogates the FTCA’s intentional tort exception...
It's at least somewhat interesting that the Court doesn't explicitly use the word repeal, but that's what abrogate means.

The last question is whether this is an implicit repeal, or an explicit (or express) repeal:
The phrase is hereby repealed is not necessary. Any language expressly stating that the prior provision is no longer operative will suffice--for example, a statement that a certain provision "is amended to read as follows," or a statement that a certain disposition is "adopted in lieu of" a prior statutory disposition. (p. 332-33)
Given the Court's certainty about the Gonzalez Act provision ("The choice between these alternative readings of §1089(e) is not difficult to make..."), I'd lean toward considering this an explicit repeal.
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