United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 25, 1998 Decided June 16, 1998
No. 98-3001
United States of America,
Appellant
v.
Alphonso Michael Espy,
Appellee
Appeal from the United States District Court
for the District of Columbia
(97cr00335-01)
Charles M. Kagay, Chief Appellate Counsel, argued the
cause for appellant, with whom Donald C. Smaltz, Indepen-
dent Counsel, Theodore S. Greenberg, Deputy Independent
Counsel, and Joseph P. Guichet, Associate Independent
Counsel, were on the briefs.
Charles J. Ogletree, Jr. argued the cause for appellee, with
whom Reid H. Weingarten, Erik L. Kitchen, and Theodore V.
Wells, Jr. were on the brief. Rhonda M. Rivens entered an
appearance.
Before: Silberman and Williams, Circuit Judges, and
Buckley, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Silberman.
Concurring opinion filed by Senior Circuit Judge Buckley.
Silberman, Circuit Judge: This case arises from an inde-
pendent counsel investigation into charges that former Secre-
tary of Agriculture Alphonso Michael Espy accepted illegal
gratuities while in office, used public funds for his personal
benefit, and lied to cover up his wrongdoing. A grand jury
returned a 39-count indictment, but the district court granted
Espy's motions to dismiss Counts 26-28, brought under the
Meat Inspection Act, and Count 39, brought under the False
Statement Statute. The government immediately appealed.
We affirm the district court with respect to Count 39, but
reverse with respect to Counts 26-28.
I.
Counts 26-28 alleged that Espy accepted approximately
$4,221.00 in gifts from Tyson's Foods and Quaker Oats,
corporations subject to the Meat Inspection Act. The Act
forbids "any inspector, deputy inspector, chief inspector, or
other officer or employee of the United States authorized to
perform any of the duties prescribed by this subchapter" to
accept gratuities. 21 U.S.C. s 622 (1994) (emphasis added).
The district court, agreeing with appellee, concluded that the
statute is ambiguous as to whether it includes the Secretary
of Agriculture and, relying on several canons of construction,
determined that the Secretary was not covered.1 Before us,
appellee particularly emphasizes ejusdem generis and the
__________
1 At oral argument, counsel for appellee emphasized several
times that he had prevailed before the district court. That point
could be relevant only as an argument for deference, but the issues
before us are questions of statutory interpretation. Obviously, no
deference is appropriate.
avoidance of constitutional questions. Where a general term
follows a list of specific terms, the rule of ejusdem generis
limits the general term as referring only to items of the same
category. Accordingly, both appellee and the district court
have interpreted "other officer" to mean only those who
actually inspect meat. As for the avoidance canon, see Asso-
ciation of American Physicians and Surgeons v. Clinton, 997
F.2d 898, 906-11 (D.C. Cir. 1993), s 622 provides that a
person convicted under that section will be "summarily dis-
charged from office and shall be punished by a fine not less
than $1,000 nor more than $10,000 and by imprisonment [for]
not less than one year nor more than three years." Although
Espy is not subject to removal because he is no longer
Secretary of Agriculture, he somewhat imaginatively argues
that if he were still Secretary, the removal provision could not
be applied constitutionally to him. Congress would not have
intended an unconstitutional result, therefore he claims that
the Secretary must not be among the "other officers" to
whom the statute refers.
But before either ejusdem generis or the avoidance canon
applies, there must be ambiguity in the statute--and we see
none. The Secretary is certainly an "other officer authorized
to perform ... duties prescribed by this subchapter." To
name a few: "the Secretary shall cause to be made by
inspectors appointed for that purpose a postmortem examina-
tion and inspection of the carcasses and parts thereof of all
cattle" 21 U.S.C. s 604 (1994); "the Secretary shall cause to
be made a careful inspection of all cattle ... intended and
offered for export to foreign countries" 21 U.S.C. s 612
(1994); "the Secretary shall submit to [designated congres-
sional committees] a comprehensive and detailed written re-
port" 21 U.S.C. s 620(e) (1994); and the "Secretary shall,
from time to time, make such rules and regulations as are
necessary for the efficient execution of the provisions of this
subchapter" 21 U.S.C. s 621 (1994). The Act was passed in
response to Upton Sinclair's famous book The Jungle, see
United States v. Seuss, 474 F. 2d 385, 388 (1st Cir. 1973), and
seeks to ensure safe meat products. Espy may well be
correct in saying that the paradigm in Congress' mind was a
corrupt meat inspector engaged in the actual examination of
slaughterhouses; but a corrupt Secretary, who supervises all
Agriculture Department employees, obviously could cause an
even greater deleterious effect on meat. See Brogan v.
United States 118 S. Ct. 805, 809 (1998) ("[I]t is not, and
cannot be, our practice to restrict the unqualified language of
a statute to the particular evil that Congress was trying to
remedy."). Nor are we impressed by appellee's observation
that the Secretary's duties under the subchapter are not
specifically referred to as "duties," in contrast to the meat
inspector's tasks, which are identified in s 621 as inspecting
carcasses and "other duties." We think that distinction trivi-
al. All of appellee's attempts to restrict the word "duty" to
hands-on "meat inspection" are really quite labored. The Act
charges the Secretary with a host of tasks that fit comfort-
ably within the definition of "duty," which is "something that
one is expected or required to do by moral or legal obli-
gation." The Random House College Dictionary 411 (Re-
vised Ed. 1980). Although the Act never explicitly identifies
these responsibilities as "duties," it gives no indication that
the normal meaning of duty should not apply.2
Since we do not find the statute in the least bit ambiguous,
we have no need to employ, nor any legitimate purpose in
employing, canons of construction designed to reconcile con-
fusing language. Ejusdem generis only comes into play when
the general term in the list is so broad that it creates
ambiguity. Gooch v. United States, 297 U.S. 124, 128 (1936)
accord United States v. Mescall, 215 U.S. 26 (1909). For
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2 Appellee also insists that because he, "like all other Cabinet
members," is already covered by the general government bribery
provision found at 18 U.S.C. s 201 (1994), it is doubtful that
Congress intended to reach him through s 622. But it is neither
here nor there that the general bribery statute covers the Secretary
of Agriculture. Appellee does not dispute that the Meat Inspection
Act applies to meat inspectors, yet they are also covered by the
general bribery statute--which, contrary to Espy's implication,
regulates more than Cabinet officers. 18 U.S.C. s 201(a)(1) (defin-
ing the "public officials" within its ambit as any "officer or employee
or person acting for or on behalf of the United States").
example, in Cole v. Burns International Security Services,
105 F.3d 1465 (D.C. Cir. 1997), we applied the canon to a
provision of the Federal Arbitration Act exempting "contracts
of employment of seamen, railroad employees, or any other
class of workers engaged in foreign or interstate commerce."
9 U.S.C. s 1 (1994). There, the phrase "workers engaged in
foreign or interstate commerce" was sweeping enough to
include nearly every worker in the United States. Indeed, it
was so broad that a literal interpretation would have ren-
dered the preceding specific enumerations (seamen and rail-
road employees) mere surplusage. Here, by contrast, the
general term "other officer or employee authorized to per-
form duties prescribed by this subchapter" has set its own
limits--"duties prescribed by this subchapter"--so there is no
need to limit it further.
For the same reason, we need not elaborate on appellee's
constitutional argument. See Almendarez-Torres v. United
States, 118 S. Ct. 1219, 1228 (1998) ("[for the avoidance canon
to apply], the statute must be genuinely susceptible to two
constructions ...."); see also Edward J. DeBartolo Corp. v.
Florida Gulf Coast Bldg. and Constr. Trades Council, 485
U.S. 568, 575 (1988). It would not be uncalled for, however,
to observe that we think his constitutional argument is con-
siderably overdone.3 This removal provision is not the same
as the one held unconstitutional in Bowsher v. Synar, 478
U.S. 714 (1986). There, Congress itself maintained control
over removal. Here, Congress only disqualified someone
convicted under the Meat Inspection Act from continued
service in his or her government job. Although there are
constitutional limits to the qualifications Congress can impose
__________
3 Moreover, we cannot imagine any sitting Secretary facing the
provision in the way Espy envisions. He argues that, upon convic-
tion, the statute would require a judge to order the President to fire
the defendant. This is by no means clear from the statute. The
more likely interpretation is that the summary discharge provision,
as applied to any officer or employee, is merely a hortatory di-
rection from Congress to the President.
on presidential appointees, we have little doubt that Congress
could legitimately restrict Agriculture Department officers to
those not convicted under the Meat Inspection Act. See
Myers v. United States, 272 U.S. 52, 128 (1926) ("We see no
conflict between the [power to prescribe qualifications for
office or to give reasonable classification for promotion] and
that of appointment and removal, provided of course that the
qualifications do not so limit selection and so trench upon
executive choice as to be in effect legislative designation.").
And it is doubtful that a restriction on continued service is
any more constitutionally suspect than an initial appointment
restriction. See Public Citizen v. Dep't of Justice, 491 U.S.
440, 484-85 (1988) (Kennedy, J., concurring) (arguing that
removal, an implicit power, warrants less protection than the
appointment power, which is explicitly conferred by the Con-
stitution).4
II.
Count 39 of the Indictment alleges that when the Presi-
dent's Chief of Staff and Counsel questioned Espy about
whether he had received gratuities, Espy responded "there's
nothing else out there," although he knew that representation
to be untrue. The False Statement Statute in effect at the
time forbad false statements to be made "in any matter
within the jurisdiction of any department or agency of the
United States." 18 U.S.C. s 1001 (1994).5 The district court
held that the Executive Office of the President was not a
"department" and dismissed the count. The independent
counsel, urging reversal, argues that the statute uses the
__________
4 Espy thinks it particularly significant that no Secretary of
Agriculture has ever been prosecuted under the Meat Inspection
Act. We are thoroughly unimpressed with this reasoning. The
Chief Justice of the United States has never been prosecuted for
grand theft larceny, but that does not mean that larceny laws do not
apply to him.
5 Notably, s 1001 was amended in 1996 to cover any false
statement made within the jurisdiction of the "executive, legislative,
or judicial branch of the Government." (Emphasis added.)
word department to refer to the whole executive branch (as in
"executive department") or, alternatively, that the Executive
Office of the President should be regarded as an agency.
In Title 18, the term "department" is defined as "one of the
executive departments enumerated in section 1 of Title 5,
unless the context shows that such term was intended to
describe the executive, legislative, or judicial branches of the
government." 18 U.S.C. s 6 (1994) (emphasis added). The
Supreme Court has observed that s 6 treats the expansive
reading of "department" as the exception. Hubbard v. Unit-
ed States, 514 U.S. 695, 700-01 (1995). In Hubbard, the
Court held that the judicial branch is not a "department"
under s 1001; in so doing, it overruled United States v.
Bramblett, 348 U.S. 503 (1955), where, applying s 1001 to the
legislative branch, the Court had broadly interpreted "depart-
ment" to describe the "executive, legislative, and judicial
branches of the Government." Id. at 509. Appellant would
have us limit Hubbard to a holding that under s 1001,
department may not refer to the "judicial department" but
can refer to the "executive department." We do not think
that reading of either Hubbard or the statute is feasible.
Nothing in the grammatical context of s 1001 indicates that
Congress was using the word "department" as a synonym for
"branch."
Appellant's contention that the Executive Office of the
President is an "agency" within the meaning of s 1001 is not
so easily discarded. Section 6 provides that "[t]he term
'agency' includes any department, independent establishment,
commission, administration, authority, board or bureau of the
United States or any corporation in which the United States
has a proprietary interest, unless the context shows that the
term was intended to be used in a more limited sense."
Although acknowledging that none of these terms is an
obvious fit with the Executive Office of the President, the
appellant argues that it can qualify as an "authority"; in any
event, he says, the word "includes" renders the list illustra-
tive rather than exhaustive, and the tone suggests an expan-
sive interpretation. Espy, on the other hand, would have us
look to the Freedom of Information Act (FOIA), which also
uses the term "agency." An entity within the Executive
Office does not qualify as an "agency" unless it exercises
"substantial independent authority," Soucie v. David, 448
F.2d 1067, 1073-76 (D.C. Cir. 1971); see Kissinger v. Report-
ers Comm. for Freedom of the Press, 445 U.S. 136, 156 (1980),
which, of course, would not be true of either the Chief of Staff
or the President's Counsel. And it has never been thought
that the whole Executive Office of the President could be
considered a discrete agency under FOIA.
Espy's analogy to FOIA does not work. The Supreme
Court defined "agency" narrowly under FOIA on the assump-
tion that Congress would not have wished to chill discussion
between close presidential advisors. It is by no means obvi-
ous that Congress, for analogous policy reasons, would have
wished a similarly narrow definition of agency for purposes of
s 1001. Indeed, the independent counsel argues that a broad
definition would more likely serve the policy of this statute by
protecting the Executive Office against false statements in
the course of its investigations.
We think the key to deciding whether "agency" should be
read as referring to the entire Executive Office of the Presi-
dent is the word "jurisdiction." Recall that s 1001 reaches
matters "within the jurisdiction of any department or agen-
cy." (emphasis added). "Jurisdiction" implies a limited area
of authority. The jurisdiction of the Environmental Protec-
tion Agency, for example, can be distinguished from the
jurisdiction of the Securities and Exchange Commission.
Each has a realm in which it acts. It would be anomalous,
however, to refer to the "jurisdiction" of the Executive Office
of the President--which, of course, is coextensive with the
President's authority. We do not normally refer to the
President's executive authority under the Constitution as his
"jurisdiction" because--even for those with a relatively for-
malist view of separation of powers--the executive and legis-
lative authority are not viewed as separate "jurisdictions."
The independent counsel relies on United States v. Rodg-
ers, 466 U.S. 475 (1984), where the Supreme Court, reversing
the Court of Appeals, said that jurisdiction meant only "the
power to act." There, however, the Court of Appeals had
held s 1001 inapplicable to the FBI because it attributed a
quasi-judicial meaning to the word "jurisdiction" and the FBI
"had no power to adjudicate rights, establish binding regula-
tions, compel the action or finally dispose of the problem
giving rise to the inquiry." Id. at 478 (quoting Friedman v.
United States, 374 F.2d 363, 368 (1967)). Although rejecting
the quasi-judicial definition, the Supreme Court's reasoning is
consistent with the notion that jurisdiction implies limited
authority. The Court said:
The most natural, nontechnical reading of the statutory
language is that it covers all matters confided to the
authority of the agency or department. Thus, Webster's
Third New International Dictionary broadly defines "jur-
isdiction" as, among other things, the "limits or territory
within which any particular power may be exercised:
sphere of authority." A department or agency has juris-
diction, in this sense, when it has the power to exercise
authority in a particular situation. Understood in this
way, the phrase "within the jurisdiction" merely differen-
tiates the official, authorized functions of an agency from
matters peripheral to the business of that body.
Id. at 479 (citations omitted). The problem with appellant's
interpretation is that nothing is peripheral to the business of
the President, so the phrase "within the jurisdiction" does not
draw any lines. One might say that the phrase differentiates
between the President's personal business and that related to
his office. But the line between "official" and "personal"
distinguishes "governmental" from "private," while jurisdic-
tional lines more aptly categorize things as within the prov-
ince of one or another governmental body. Here, everything
is within the province of the same governmental body. We
therefore hold that even if the Executive Office of the Presi-
dent is an "agency" under s 6, it cannot be considered an
"agency" for purposes of s 1001.
* * * *
Accordingly, we remand to the district court and order
Counts 26-28 reinstated.
Buckley, Senior Judge, concurring: The word "unambigu-
ous" has ambiguities of its own. Thus, unambiguous lan-
guage chosen by Congress to address a particular situation
will at times have consequences that could not have been
intended by its draftsmen; and such unintended conse-
quences may engender ambiguity where none at first ap-
pears. In this case, the court is correct in stating that the
language of section 622 clearly applies to a Secretary of
Agriculture by virtue of his being an "officer ... of the
United States authorized to perform ... duties described by
this subchapter." 21 U.S.C. s 622. Yet the section's sum-
mary dismissal sanction, as applied to a cabinet officer, would
appear to exceed Congress's authority. It is in such circum-
stances that courts will invoke the doctrine of judicial sever-
ability. See, e.g., Robert Dollar Co. v. Canadian Car &
Foundry Co., 115 N.E. 711, 713 (N.Y. 1917) (holding that
"where a single section of a statute attempts or purports to
cover two entirely distinct and separable classes of cases, one
properly and the other improperly, ... [the section] may be
upheld as to the class which constitutionally may be thus
covered, even though condemned as to the other"). This is a
judicial remedy with which the drafters of the 1907 Meat
Inspection Act were familiar. Unlike many criminal cases in
which courts have rejected application of the doctrine of
severability, cf. United States v. Raines, 362 U.S. 17, 22
(1960) ("Perhaps cases can be put where the application [of
avoidance and severability doctrines] to a criminal statute
would necessitate such a revision of its text as to create a
situation in which the statute no longer gave an intelligible
warning of the conduct it prohibited."), severance of the
dismissal penalty would not undermine the integrity of the
remainder of section 622 or "hamper the ability of '[e]very
man ... to know with certainty when he is committing a
crime.' " United States v. Reese, 92 U.S. 214, 220 (1875)
(citation omitted).
I agree with the court's rejection of Espy's argument that,
because Congress had no power under the Constitution to
order the dismissal of a cabinet officer, the phrase "other
officer[s]" may not be construed to include the Secretary.
Whatever ambiguity may be created by virtue of the section's
inclusion of what may be an impermissible penalty as applied
to a particular person is cured by the doctrine of severability,
which would allow a court to withhold the dismissal sanction
while enabling it to apply the remaining ones to a Secretary
convicted of violating the section.
Because I believe this to be the proper basis for disposing
of Espy's avoidance argument, I disassociate myself from the
court's dicta, on pages 5-6, concerning Congress's putative
authority to legislate conditions for a cabinet officer's continu-
ance in service and its suggestion, in footnote 3, that the
summary dismissal provision might be construed as merely
hortatory.