An Interpretive Battle Among Textualists Judges Over Statute Criminalizing False Liens Against U.S. Officers or Employees (8/13/22)

In United States v. Pate, 43 F.4th 1268 (11th Cir. 8/10/22), CA11 here and GS here, the majority opinion sets up the issue decided in the opening paragraph:

            Title 18 U.S.C. § 1521 prohibits the filing of a false lien or encumbrance against the property of any officer or employee of the United States “on account of the performance of official duties.” In 2018, Timothy Jermaine Pate filed various false liens against John Koskinen, the former Commissioner of the Internal Revenue Service, and Jacob Lew, the former Secretary of the Treasury. There is no dispute that Pate filed the false liens to retaliate against Lew and Koskinen for acts they performed as part of their official duties. The twist here, and what makes this a case of first impression for this Court, is that Pate filed the false liens after Lew and Koskinen had left their positions with the federal government. We therefore are presented with the following question: Does § 1521 apply to false liens filed against former federal officers and employees for official actions they performed while in service with the federal government? We conclude that the answer to this question is yes—the plain language of § 1521 covers both current and former federal officers and employees. Thus, for the reasons discussed below, and with the benefit of oral argument, we affirm Pate’s convictions predicated on violations of § 1521.

The majority (Judge Lagoa with Judge Branch joining) and dissenting (Judge Newsom) opinions engage over interpretation of a criminal statute.  The three judges are Trump appointees and, not surprisingly, members of the Federalist Society, which permits an inference that they are textualists, an inference confirmed by the opinions.  The majority opinion claims that its decision is based on the plain language of the statute, reasonably interpreted of course.  The dissent claims that the plain language, as it reads the text, does not support the majority.  Both sides rely on parts of the work of the master textualist and sloganeer, Justice Scalia.  Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012).  Both sides deploy dictionaries, judicial sound bites, and slogans to justify the differing conclusions, with each side accusing the other of not being good textualists.  Of course, we should not expect a uniform meaning of textualism, so I suppose this type of difference is not surprising. And we should recognize that there is sufficient play in the joints of textualism to permit judges to reach their preferred conclusions.  

I think the majority has the better side of the engagement of giving a reasonable interpretation to the text.