Redstate

By New World Man Posted in User Blogs — Comments (1) / Email this page » / Leave a comment »

After spending the last few days poring over Alito opinions to try and identify clues to his approach to various issues like the First Amendment and judicial restraint, I thought I'd take a different tack -- and something of a breather -- today and look at a 2003 case, Barnhart v. Thomas, in which the Supreme Court, by Mr. Justice Scalia, reversed 9-0 a Third Circuit decision authored by Judge Alito.  

The case features a gentleman's duel between two Strunk & White-toting judges from Jersey, with Scalia meeting Alito's Dickens thrusts with a well-timed parry courtesy Sutherland on Statutory Construction.  In seriousness, it's worthwhile to note that this case can also easily be read as evidence of the degree to which Judge Alito is committed to textualism, the jurisprudential theory that we, and our judges, are governed by the words of statutes (and constitutions, as superstatutes) and not by maneuvers intended to avoid those words and achieve results not dictated by the text.  Unlike the opinions I looked into yesterday, if anyone is eschewing textualism here it's Judge Alito!  His reasoning, though, is sound and grounded in a reasonable interpretation of the law at issue, as we'll see.  But he was wrong -- 9-0 wrong -- as it turned out.

Facts and Third Circuit proceedings

Pauline Thomas worked as a housekeeper until 1988, when she had a heart attack.  After her recovery, she worked as an elevator operator until laid off in 1995.  She applied for Disability Insurance Benefits and Supplemental Security Income Benefits in 1996, but was denied; an Administrative Law Judge found that her lingering health conditions -- hypertension, cardiac arrhythmia, cervical and lumbar strain/ sprain, and a transient ischemic attack -- did not preclude her from contuning to work as an elevator operator.  Thomas argued that the job of elevator operator "no longer exists in the national economy."  The ALJ found that the regulatory inquiry stops when a claimant is determined to be physically able to perform her job, and doesn't permit proof the job doesn't exist anymore.  Thomas's denial of benefits stood.  

Thomas challenged the ALJ's ruling in District Court, which sided against her.  She appealed to the Third Circuit.  A three-judge panel heard her appeal in 2001, and the court heard reargument en banc in 2002.

The full court, in an opinion by Judge Alito, reversed and remanded for further proceedings to allow Thomas the opportunity to prove the only job she was qualified for no longer existed in the national economy.  

At issue was a five-step inquiry into disability, in which Thomas was hung up at step four.  At that stage the ALJ found that since she was physically able to perform her past work -- that is, as an elevator operator -- she was not disabled for purposes of receiving benefits.  42 U.S.C. &sect. 1382 defined disability as follows: "An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy."  Judge Alito the textualist noted:

The phrase "any other" in this provision is important for present purposes. The use of this phrase makes clear that an individual's "previous work" was regarded as a type of "substantial gainful work which exists in the national economy." When a sentence sets out one or more specific items followed by "any other" and a description, the specific items must fall within the description. For example, it makes sense to say: "I have not seen a tiger or any other large cat" or "I have not read Oliver Twist or any other novel which Charles Dickens wrote." But it would make no sense to say, "I have not seen a tiger or any other bird" or "I have not read Oliver Twist or any other novel which Leo Tolstoy wrote." Therefore, if we presume that the statutory provisions at issue here are written in accordance with correct usage, a claimant's ability to perform "previous work" is not disqualifying if that work no longer "exists in the national economy." This feature of the statutory language is unambiguous.

(Footnote omitted.)  Given this interpretation, Alito concluded that "Thomas should have been permitted to show that her previous work as an elevator operator no longer exists in substantial numbers in the national economy."  Enabling regulations of the statute, which set up a five-part inquiry in which the "national economy" factor was not to be considered until stage five, could not countermand the law.  "Our decision ... is based not on the regulations but on the statute. To the extent that the regulations are inconsistent with the statute, they are invalid."

Alito acknowledged that "[m]echanically following the regulations, the ALJ in this case found that Thomas retained the residual functional capacity to perform her previous job as an elevator operator. Without giving Thomas an opportunity to present evidence concerning the existence of elevator operator positions, the ALJ ended the evaluation.... The problem with a literal reading of the regulation," Alito continued, is that "it sets up an artificial roadblock to an accurate determination of whether Thomas can 'engage in any ... kind of substantial gainful work which exists in the national economy.'"  (Latter ellipses in original.)  

If Thomas can show that elevator operator positions really are obsolete, the fact that she still possesses the physical or mental capability to perform the duties of an elevator operator does not mean that she can engage in any substantial gainful activity that actually exists. Accordingly, the ALJ should have allowed Thomas to present evidence on whether elevator operator positions are obsolete. If Thomas had made such a showing, the ALJ then should have proceeded to Step Five of the sequential evaluation to ascertain whether Thomas's medical impairments prevent her from engaging in any work that actually exists.

Three judges in dissent accused Alito and the majority of "rewriting the statute," "contort[ing] the statutory language," "reject[ing] its literal meaning," and "engraft[ing]" upon it an "additional component."  Alito found the arguments "unpersuasive."

Supreme Court Scalia smackdown

Mr. Justice Scalia didn't!  Writing for a unanimous Court, Scalia noted that "step four can result in a determination of no disability without inquiry into whether the claimant's previous work exists in the national economy; the regulations explicitly reserve inquiry into the national economy for step five." The Social Security Administration "has made it perfectly clear that it does not interpret the clause 'which exists in the national economy' ... as applying to 'previous work.'"  The threshold question was whether the Court should defer to that determination. Out came Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc.,  the Court's famous administrative deference decision.  "[W]hen the statute 'is silent or ambiguous' we must defer to a reasonable construction by the agency charged with its implementation," Scalia noted.

The Third Circuit held that, by referring first to "previous work" and then to "any other kind of substantial gainful work which exists in the national economy," the statute unambiguously indicates that the former is a species of the latter. "When," it said, "a sentence sets out one or more specific items followed by `any other' and a description, the specific items must fall within the description." We disagree.

(Citations omitted.)  He concluded that "the interpretation adopted by SSA is at least a reasonable construction of the text and must therefore be given effect."

The Third Circuit's reading disregards --indeed, is precisely contrary to -- the grammatical "rule of the last antecedent," according to which a limiting clause or phrase (here, the relative clause "which exists in the national economy") should ordinarily be read as modifying only the noun or phrase that it immediately follows (here, "any other kind of substantial gainful work")....

 Consider, for example, the case of parents who, before leaving their teenage son alone in the house for the weekend, warn him, "You will be punished if you throw a party or engage in any other activity that damages the house." If the son nevertheless throws a party and is caught, he should hardly be able to avoid punishment by arguing that the house was not damaged. The parents proscribed (1) a party, and (2) any other activity that damages the house. As far as appears from what they said, their reasons for prohibiting the home-alone party may have had nothing to do with damage to the house--for instance, the risk that underage drinking or sexual activity would occur. And even if their only concern was to prevent damage, it does not follow from the fact that the same interest underlay both the specific and the general prohibition that proof of impairment of that interest is required for both.

The proper inquiry, Scalia said, "is not whether the agency construction can give rise to undesirable results in some instances ... but rather whether, in light of the alternatives, the agency construction is reasonable. In the present case, the SSA's authoritative interpretation certainly satisfies that test."  

One final interesting aside: Judge Alito's son Philip was 17 when Scalia penned the above example about teenage sons partying while their parents are away.  It is not unreasonable to believe that Scalia, an accomplished lecturer, was writing in terms his intended reader would understand!