More on United States v. Boler (8/25/24)

Yesterday, I wrote a blog entry on United States v. Boler, 115 F.4th 316 (4th Cir. 2024). Fourth Circuit Applies Auer/Kisor Deference to Include in Guidelines "Loss" the Commentary Inclusion of "Intended Loss" (Federal Tax Crimes Blog 8/24/24), here. (The blog entry was cross-posted on my Federal Tax Procedure Blog, here.) I think there is more that can and should be said about Boler. This post will be more of a “notice” post (like the fabled notice pleading lawyers at least of my generation learned about early in our law school careers).

1. The structure of the Federal Sentencing Guidelines. The 2023 version of the U.S. Sentencing Guidelines is here. The Guidelines (with accompanying Commentary and Policy Statements) are promulgated by the U.S. Sentencing Commission which is “a bipartisan, independent agency located in the judicial branch of government, was created by Congress in 1984 to reduce sentencing disparities and promote transparency and proportionality in sentencing.” See website here. So, we know at the outset that it is a strange creature in our constitutional framework—the only agency located in the judicial branch. 

JAT Side Note: Readers of this blog will surely have some passing acquaintance with the difficulty going back to the 1940s of determining precisely what the Tax Court was, even though the statute said since its earliest days (then the Board of Tax Appeals) that the Tax Court was an independent agency in the Executive Branch. As I have noted, the nature of the Tax Court was an issue was much discussed with more heat than light in the 1940s, including in the consideration of the APA; the Supreme Court in Dobson v. Commissioner, 320 U.S. 489 (1943), reh. den., 321 U.S. 231 (1944), a unanimous opinion authored by Justice Jackson, the most tax procedure savvy Justice ever, held that the Tax Court was an agency rather than a court and applied Chevron-like deference to its statutory interpretations. I cover these issues in John A. Townsend, The Tax Contribution to Deference and APA § 706 (SSRN December 14, 2023), pp. 5-23)   https://ssrn.com/abstract=4665227.

2. Guidelines treated as Legislative Rules; Commentary Treated as Interpretive Rules. As an agency, albeit a Judicial Branch agency, the issue underlying Boler was the authority of the Guidelines and the Policy Statements and Commentary. In Stinson v. United States, 408 U.S., 36 (1993), GS here, the Court treated the Guidelines as analogous to legislative rules which make law pursuant to Congress’ delegation and treated Commentary as an interpretive rule interpreting the law (the law being the Guidelines). The Court said (p. 44-45, cleaned up to omit most case citations):

Although the analogy is not precise because Congress has a role in promulgating the guidelines, we think the Government is correct in suggesting that the commentary be treated as an agency's interpretation of its own legislative rule. The Sentencing Commission promulgates the guidelines by virtue of an express congressional delegation of authority for rulemaking, and through the informal rulemaking procedures in 5 U. S. C. § 553, see 28 U. S. C. § 994(x). Thus, the guidelines are the equivalent of legislative rules adopted by federal agencies. The functional purpose of commentary (of the kind at issue here) is to assist in the interpretation and application of those rules, which are within the Commission's particular area of concern and expertise and which the Commission itself has the first responsibility to formulate and announce. In these respects this type of commentary is akin to an agency's interpretation of its own legislative rules. As we have often stated, provided an agency's interpretation of its own regulations does not violate the Constitution or a federal statute, it must be given "controlling weight unless it is plainly erroneous or inconsistent with the regulation." Bowles v. Seminole Rock & Sand Co., 325 U. S. 410, 414 (1945). 

Bowles v. Seminole Rock is the predicate for Auer deference which I now call Auer/Kisor deference because of the authoritative treatment of Auer deference in Kisor v. Wilkie, 588 U.S. 558 (2019). As I discussed in yesterday’s blog on Boler, the issue was the application of Auer deference to Guidelines’ Commentary (Application Note) defining the Guidelines term “loss” to include “intended loss.”

3. Did Auer/Kisor Deference Survive the Demise of Chevron. One of the issues I presented in yesterday’s blog was whether Auer/Kisor deference survived the demise of Chevron deference. I just want to make a few bullet points about that issue.

• In Kisor, the Court affirmed but constricted Auer deference by 5-4 vote. Kisor was 5 years before Loper Bright’s rejection of Chevron deference, requiring that Courts apply their own best interpretation to statutory text with perhaps only some uncertain weight to or consideration of agency interpretation under Skidmore v. Swift Co., 323 U.S. 134 (1944) (which seems to say weight is only given for persuasive agency). See Really, Skidmore "Deference?" (Federal Tax Procedure Blog 5/31/20; 2/14/21), here.
• In Boler, the majority treated Auer/Kisor deference as continuing. (See Boler, Slip Op. 8 n. 4, which I quote in yesterday’s blog.) The Boler dissent does not discuss Auer/Kisor deference except to say at the start (p. 22.) “Because the Guideline commentary’s interpretation of “loss” in § 2B1.1(b)(1) to include intended loss is both inconsistent with and a plainly erroneous reading of the Guideline, no deference to the commentary is warranted.” In other words, the dissent stops the discussion at Auer/Kisor Step One (applying the Chevron-like two-step framework to Auer/Kisor (as did the majority citing Kisor (see Slip Op. p. 8)) by saying that there is no interpretive space in the meaning of the Guidelines word “loss” that could include "intended loss." (I infer from that that the dissent felt the Auer/Kisor framework could apply if it could get past Step One.) For further comment see Sentencing Guidelines under the Loper Bright Non-Deference Regime (Federal Tax Crimes Blog 8/7/24; 8/9/24), here, where I note: “It is not clear what remains of Auer/Kisor deference after Loper Bright, but I suspect that some type of Skidmore-equivalent respect (not deference) might be used. If that is right then equivalent respect for sub-Guidelines rules may apply.”
• As I mentioned, the issue of whether “loss” includes “intended loss” is mooted by the Guidelines amendments effective 11/1/24 to include "intended loss" in the Guidelines rather than the Commentary. That move will make the "intended loss" the law (by applying Stinson’s analogy to legislative rules). The amendment is intended to resolve a split in the Circuits on the issue of whether intended loss is included in the calculations of loss. See Amendments to the Sentencing Guidelines 6-16 (USSC 4/30/24), here.

4, Statutory Interpretation-Dictionaries and Corpus Linguistics. Beyond the deference issue, the Boler majority and dissent differ on fundamental aspects of statutory interpretation. By way of background, the author of Boler was Judge Thacker (Obama appointee) and the concurring judge was Judge Benjamin (Biden appointee). The dissenter was Judge Benjamin (Trump appointee). Both sides repair to dictionaries or some spins thereof to support their respective positions: Majority that “loss” includes “intended loss”; and dissent that “loss” does not include “intended loss.” The issue as framed by the majority (and not contested by the dissent) is (Slip Op. 9): “The issue we confront in this case is whether the term ‘loss’ in Guidelines § 2B1.1 is genuinely ambiguous, and if it is, whether we should defer to the Guidelines’ commentary to ascertain its meaning.”

• Since all judges claim to be textualists (at least to some extent, inviting inquiry into what the meaning of textualist, like is, is). Cf. Timothy Noah, Bill Clinton and the Meaning of “Is” (Slate 9/13/98), here. At any rate, this is helpful from Richard Hazen, The Justice of Contradictions: Antonin Scalia and the Politics of Disruption 30 (Yale U. Press 2018):

In appellate courts, textualist arguments may come down to a battle of dictionaries, with justices citing competing definitions of a word to  make their points. “Dictionary shopping” has become de rigueur for lawyers arguing before the Supreme Court and justices writing opinions. It is kind of like picking out your friends at a party, if your friends are historical dictionaries found in law libraries rather than committee reports.n25
   n25 On dictionary shopping, see James J. Brudney & Lawrence Baum, Oasis or Mirage: The Supreme Court’s Thirst for Dictionaries in the Rehnquist and Roberts Eras, 55 Wm. & Mary L. Rev. 483 (2013); Ellen P. Aprill, The Law of the Word: Dictionary Shopping in the Supreme Court, 30 Ariz. St. L.J. 275 (1998).

• One tool that is likely a variant of the battle of dictionaries is the so-called “Corpus Linguistics.” The Boler majority rejects use of corpus linguistics; the dissent uses corpus linguistics.

• The majority rejection of Corpus Linguistics comes in a footnote (Slip Op. 13 n. 5):

   n5 We pause to address the use of corpus linguistics in the dissent’s analysis. While the dissent views corpus linguistics as simply “another tool for interpreting the meaning of words in a statute (or other text),” it is not so benign. Post at 27. Indeed, legal corpus linguistics can be quite a flawed tool; a controversial tool at best. See Anya Bernstein, What Counts as Data?, 86 Brook. L. Rev. 435 (2021); Anya Bernstein, Legal Corpus Linguistics and the Half-Empirical Attitude, 106 Cornell L. Rev. 1397 (2021) (hereinafter Bernstein, Legal Corpus Linguistics); Mark W. Smith & Dan M. Peterson, Big Data Comes for Textualism, 70 Drake L. Rev. 387 (2021); John S. Heretic, Against Corpus Linguistics, 108 The Geo. L.J. Online 51. The bottom line is that context matters and legal corpus linguistics largely “ignores the crucial contexts in which legal language is produced, interpreted, and deployed.” Berstein, Legal Corpus Linguistics, at 1397. A survey of novels, magazines, newspapers, popular television shows and movies is no match for legal analysis of the text, structure, purpose and history of the actual regulation we are considering.

•  The dissent responds (Slip Op. 27-28, 30):

          Corpus linguistics—another tool for interpreting the meaning of words in a statute (or other text)—confirms “loss” is not ambiguous. “Corpus linguistics is the study of language (linguistics) through systematic analysis of data derived from large databases of [*28] naturally occurring language (corpora, the plural of corpus, a body of language).” Thomas R. Lee & James C. Phillips, Data-Driven Originalism, 167 U. PA. L. REV. 261, 289 (2019). In layman’s terms, corpus linguistics clarifies a term’s meaning by studying the term’s use across specified time periods and origins. “The uses can then be reviewed one by one, in their context, to determine” the term’s meaning. United States v. Rice, 36 F.4th 578, 583 n.6 (4th Cir. 2022). When the uses are reviewed as a whole, “a broad picture of how a word or phrase was customarily used and understood during a specific time period can emerge.” Id.

* * * *

          Without challenging any specifics of my analysis, the majority dismisses corpus linguistics generally. It resists my statement that corpus linguistics is another tool for interpreting words and phrases, asserting that corpus linguistics “is not so benign.” Maj. Op. at 13 n.5. It adds that corpus linguistics “can be quite a flawed tool; a controversial tool at best.” Id. And it argues that “corpus linguistics largely ‘ignores the crucial contexts in which legal language is produced, interpreted, and deployed.’” Id. (quoting Anya Bernstein, Legal Corpus Linguistics and the Half-Empirical Attitude, 106 CORNELL L. REV. 1397, 1397 (2021)). Last, the majority concludes that “[a] survey of novels, magazines, newspapers, popular television shows and movies is no match for legal analysis of the text, structure, purpose and history of the actual regulation we are considering.” Id.

          I recognize that not all academics and jurists have embraced corpus linguistics as an analytical tool. And I welcome debate on the topic, as healthy and respectful discussion about important ideas elevates our legal analysis. In that spirit, I respond with a few points.

• I guess the difference is trying to determine and compare for persuasiveness the dictionary definition (what the hypothetical users of the words might have contemporaneously thought they meant if they consulted a dictionary) and the actual usage if one were not governed in word use by dictionaries that they may not have consulted. The dissent offers 100 examples of its search into corpus linguistics in an Appendix to the dissent (pp. 40-51, beginning here.)
•  I don’t know which of these arguments is the best (to use a concept from Loper Bright), but I suspect they both are true. See Rabbi Jack Alexander, You’re Right, Too (Orthodox Union 1/10/18), here.

This blog entry is cross-posted on my Federal Tax Procedure Blog here.