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Thursday, June 24, 2010

Resolution of Ambiguity-Reference to Judicial Pronouncements

The following is an example to illustrate the principle of resolving the ambiguity and that is to refer to the earlier judicial decisions made by some other courts. If one circuit court has no precedent it can always refer to the case decided by the other sister courts.This approach is the simplest of all and it results in saving a lot of time and also helps the litigant the logic on which the courts has proceeded to arrive at a particular conclusion that is contained in the ruling.[blogger]
Because we are confronted with this ambiguity concerning the remedies available under section 43, we must resort to the legislative history of the Lanham Act. Our task remains constant--to ascertain the will of Congress and to apply it. As we have already noted, it was manifestly the intention of Congress that the Lanham Act be a self-contained statute. Congress viewed unfair competition cases as an integral component of that Act. A strong argument thus can be made that we should follow those circuits that have concluded that all the remedies under section 35 should be available to section 43 claims. See Brunswick Corp. v. Spinit Reel Co., [1987] USCA10 249; 832 F.2d 513, 528 (10th Cir.1987); Centaur Communications v. A/S/M Communications[1987] USCA2 838; , 830 F.2d 1217, 1229 (2d Cir.1987); WSM, Inc. v. Wheeler Media Servs.,[1987] USCA6 423; 810 F.2d 113, 116 (6th Cir.1987); U-Haul Int'l v. Jartran, Inc., [1986] USCA9 1298; 793 F.2d 1034, 1042 (9th Cir.1986); Rickard v. Auto Publisher, Inc., [1984] USCA11 958; 735 F.2d 450, 453-58 (11th Cir.1984); Metric & Multistandard Components Corp. v. Metric's Inc., [1980] USCA8 665; 635 F.2d 710, 715 (8th Cir.1980). However, we need not decide that broader issue because the legislative history of the 1974 amendment to section 35 that enacted the attorneys' fees remedy leaves no doubt that Congress intended for attorneys' fees to be available in section 43 actions. The Senate report speaks directly to the issue:Nupulse Inc v Schlueter Co a [1988] USCA7 525; 853 F.2d 545; 7 U.S.P.Q.2d 1633 (28 July 1988)

As a whole

In questions of statutory construction our analysis begins with the language of the statute. As a general rule, when statutory language is plain, there is no cause to examine other indicia of legislative intent. Indiana Port Comm'n v. Bethlehem Steel Corp., [1988] USCA7 72; 835 F.2d 1207, 1210 (7th Cir.1987); see also Kelly v. Wauconda Park Dist., [1986] USCA7 736;801 F.2d 269, 270 (7th Cir.1986). When section 35 is read in isolation, the plain wording of the statute appears to limit the scope of the provision to violations of a registered trademark. "Yet plain meaning, like beauty, is sometimes in the eye of the beholder." Florida Power & Light Co. v. Lorion, [1985] USSC 61; 470 U.S. 729, 737[1985] USSC 61; , 105 S.Ct. 1598,1603, 84 L.Ed.2d 643 (1985). Here, we believe that several considerations require that we go beyond the plain wording of this single section of the statute to ensure that the true congressional intent is identified and given effect. First, we must remember that " '[t]he true meaning of a single section of a statute ..., however precise its language, cannot be ascertained if it be considered apart from related sections....' " Commissioner v. Engle, [1984] USSC 4; 464 U.S. 206, 223[1984] USSC 4; , 104 S.Ct. 597, 607[1984] USSC 4; , 78 L.Ed.2d 420 (1984) (quoting Helvering v. Morgan's, Inc., [1934] USSC 144; 293 U.S. 121, 126[1934] USSC 144; , 55 S.Ct. 60, 62, 79 L.Ed.2d 232 (1934)); see also Richards v. United States, [1962] USSC 26;369 U.S. 1, 11[1962] USSC 26; , 82 S.Ct. 585, 591-92[1962] USSC 26; , 7 L.Ed.2d 492 (1962) ("We believe it fundamental that a section of a statute should not be read in isolation from the context of the whole Act...."). More recently, the Supreme Court has reaffirmed that "[i]n ascertaining the plain meaning of the statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole." K Mart Corp. v. Cartier, Inc., --- U.S. ----[1988] USSC 95; , 108 S.Ct. 1811, 1817, 100 L.Ed.2d 313 (1988). This court has said that " '[i]n expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provision of the whole law, and to its object and policy.' " Brach v. Amoco Oil Co., [1982] USCA7 337; 677 F.2d 1213, 1220 (7th Cir.1982) (quoting United States v. Heirs of Boisdore, 49 U.S. (8 How.) 113, 122, 12 L.Ed. 1009 (1849)). We also have noted that "the Supreme Court has recognized limitations on the requirement that statutory language be interpreted literally. A literal construction is inappropriate if it would lead to absurd results or would thwart the obvious purposes of the statute." Smith v. Bowen, [1987] USCA7 318; 815 F.2d 1152, 1154 (7th Cir.1987) (citing In re Trans Alaska Pipeline Rate Cases, [1978] USSC 104; 436 U.S. 631, 643[1978] USSC 104; , 98 S.Ct. 2053, 2061[1978] USSC 104; , 56 L.Ed.2d 591 (1978)).

as a whole..

When read as a whole, we believe that the language compels the conclusion that the word "applicable" means "applicable to the individual."[Gately v Commonwealth of Massachusetts [1993] USCA1 395; 2 F.3d 1221 (18 August 1993)]Besides this we all know that the task of statutory interpretation begins with the language of the statute, and statutory language must be accorded its ordinary meaning. [See, e.g., Telematics Int'l, Inc. v. NEMLC Leasing Corp., [1992] USCA1 317; 967 F.2d 703, 706 (1st Cir.1992)]It has now become a matter of policy that :".The first step in our inquiry is to determine whether the statutory language has an unambiguous meaning. If the statutory language is unambiguous, in the absence of a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive.[United States v. Emerson, [2001] USCA5 296; 270 F.3d 203, 213 (5th Cir.2001).]Atchison v A Collins W Hcs Hcs Hcs N L [2002] USCA5 125; 288 F.3d 177 (4 April  Some general rules also emrge from this kind of reading and keeping other canons in mind as was observed:When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature."But, "[w]hen the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law."In addition, "[w]hen a statute is susceptible to two or more interpretations, that which affords a reasonable and practical effect to the entire act is to be preferred to one which renders part thereof ridiculous or nugatory."[Smith v. Cajun Insulation, Inc., 392 So.2d 398 (La.1980) citing, State v. Cazes, 262 La. 202, 263 So.2d 8 (1972).]The last three statements are based upon the presumptions that we should select the interpretation that advances the object of the statute and in case there are options to select out of the competing interpretations we should select the one that serves this purpose only and stated other wise we should select the interpretation that does not attack on the constitutionality of the statute or its provisions.It is almost the duty of the courts to see that nothing of this sort arises during the course of litigation as we have a strong presumption that Congress does not enact void laws and that every statute is enacted to meet some purpose and goal.Further it may be noted that matter of interpretation is a question of 'law'.[Blogger]
A matter requiring statutory interpretation is a question of law requiring de novo review, United States v. Hans, [1990] USCA6 2583; 921 F.2d 81, 82 (6th Cir.1990), and the "starting point" for interpretation "is the language of the statute itself." Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., [1980] USSC 104; 447 U.S. 102, 100 S.Ct. 2051, 64 L.Ed.2d 766(1980). The statute is read as a whole and construed to give each word operative effect. United States v. Nordic Village, Inc.,[1992] USSC 18; 503 U.S. 30, 36[1992] USSC 18; , 112 S.Ct. 1011, 1015[1992] USSC 18; , 117 L.Ed.2d 181 (1992).III.
Let us analyse this statement'The statute is read as a whole and construed to give each word operative effect' that is taken from the above quote. This is an important statement and forms the basis of yet another powerful rule of construction that every word of a statute should be assigned some meaning and that nothing in the statute is surplus. The rule has been an extension of the presumption that we make in the case of drafting of statute that Congress is aware of the terms or the words employed in the statute meaning thereby that Parliament has selected the words with due care after analyzing its likely interpretation as per the prevailing rules of interpretation. These presumptions are necessary so that the entire fabric of the statutory language is understood in the light of the main purpose of the Act . We are concerned with what the legislators/congress has put in words rather than our expectations that what ought to have been put in words.The words employed in a statute speak for themselves.Words are small concept in themselves with no precision element contained in them. They get the coloring from the surrounding text that forms the context.
                                                                                                                                      Go Next..Contd

As a whole

No deference 

In a case [Duckworth][supra]where the meaning of 'employees' was looked into by the courts the  district court determined that the term "employees" has an inherent "plain meaning." The plain meaning seen by the district court was that "employees" means "current employees." Such a definition excludes prospective employees, and, necessarily, former employees. If, by choosing the word "employees," Congress had manifested an unambiguous intent to exclude Duckworth's claim from the Act's coverage, we would agree with the district court and would be bound to reject the Secretary's interpretation. No deference is due the administrative agency's interpretation if it conflicts with unambiguous language. See Strickland v. Commissioner, Me. Dep't of Human Servs., [1995] USCA1 63; 48 F.3d 12, 16 (1st Cir.1995). Whether the statute is ambiguous is a question of law for the court to decide and it is one which we must review de novo. See id. at 16-17. We think the district court's determination that the term "employees" is unambiguous, always meaning "current employees," is in error for several reasons

Intrinsically Plain Meaning

The Supreme Court reasoned that the word "employee" does not have some "intrinsically plain meaning," id. at 847 n. 4, that is limited "to those having an existing employment relationship with the employer in question," even though that argument may seem plausible "at first blush." Id. at 846. Canvassing various federal statutes, Robinson noted that Congress has not used the term "employee" with precision, but rather has used the term, at various times, to refer to both former and prospective employees. Id. at 846-47; see also NLRB v. Town & Country Elec., Inc., [1995] USSC 94; 516 U.S. 85, 116 S.Ct. 450, 133 L.Ed.2d 371 (1995) (upholding the NLRB's determination that the term "employees" in the National Labor Relations Act (NLRA) applies to prospective employees who were paid union organizers); Passer v. American Chem. Soc'y, [1991] USCADC 302; 935 F.2d 322, 330-31 (D.C.Cir.1991) (term "employees" in Age Discrimination in Employment Act (ADEA) includes former employees). Thus, absent an express "temporal qualifier," such as "current," Robinson, 117 S.Ct. at 846, Congress' use of the word "employees" does not inherently exclude former and prospective employees.Pratt & Whitney argued ,it was stated  that, although the term "employed" could mean both "is employed" or "was employed," see Robinson, 117 S.Ct. at 847 (noting this ambiguity), it cannot mean "will be employed," and so the use of the FLSA definition at least excludes prospective employees. However, the FMLA's use of the FLSA definition of "employee" was plainly meant to incorporate the FLSA's list of exceptions, see 29 U.S.C. § 203(e), not to exclude prospective employees from the FMLA's coverage. Indeed, the FLSA definition of "employee" has been held by one circuit court to apply to prospective employees, see Dunlop v. Carriage Carpet Co., [1977] USCA6 14; 548 F.2d 139 (6th Cir.1977), and has been described by the Supreme Court as "exceedingly broad," Tony & Susan Alamo Found. v. Secretary of Labor, [1985] USSC 99; 471 U.S. 290, 295[1985] USSC 99; , 105 S.Ct. 1953, 85 L.Ed.2d 278 (1985); see also United States v. Rosenwasser, [1945] USSC 9; 323 U.S. 360, 362[1945] USSC 9; , 65 S.Ct. 295, 89 L.Ed. 301 (1945) ("A broader or more comprehensive coverage of employees within the stated categories [in the FLSA] would be difficult to frame.") "Congress' repetition of a well-established term carries the implication that Congress intended the term to be construed in accordance with pre-existing regulatory [and judicial] interpretations." Bragdon v. Abbott, --- U.S. ----[1998] USSC 77; , 118 S.Ct. 2196, 2201-02[1998] USSC 77; , 141 L.Ed.2d 540 (1998); see also Goncalves, 144 F.3d at 132-33 (noting that Congress is presumptively aware of existing judicial or administrative interpretations). Moreover, the legislative history reveals that Congress, at the time it enacted the FMLA, was aware of the breadth of the FLSA definition and purposely chose to adopt that definition. See S.Rep. No. 103-3, at 22 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 25 (noting that "[t]his definition is broadly inclusive"); Bragdon, 118 S.Ct. at 2208 (noting that the legislative history revealed Congress' awareness of the breadth of the definition of "handicap" in the Rehabilitation Act when it chose to include that definition in drafting the ADA).Our reading of other statutory provisions does not eliminate the ambiguity. In providing various readings of statutory terms below, we are most emphatically not ruling on whether the particular readings are correct, only that the variety of possible readings demonstrates ambiguity. And that ambiguity sets the stage for deference to reasonable administrative interpretation. In this context, we address one of Pratt & Whitney's strongest arguments, that Congress has, in some statutes, distinguished "job applicants" from "employees," expressly providing that the statute's protection extends to both. See, e.g., 42 U.S.C. § 12112(b)(1) (providing that, in the ADA, "the term 'discriminate' includes limiting, segregating or classifying a job applicant or employee" in a way that adversely affects a disabled individual's opportunities). Congress could have done so here, under the FMLA, but did not. That Congress could have singled out "job applicants" for express coverage does not mean it clearly intended to exclude job applicants from the FMLA. Indeed, much prior judicial interpretation of analogous statutes could lead Congress to conclude that such a level of precision is not required, or at least that it could, by choosing to use an open-ended term like "employee," entrust that policy choice to the agency. For example, the NLRA does not explicitly include "job applicants" within its definition of "employees," see 29 U.S.C. § 152(3), but the Supreme Court has long held that term to include prospective employees, see Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 185-86, 61 S.Ct. 845, 85 L.Ed. 1271 (1941), and has recently upheld a Board determination that the term applies to prospective employees who were paid union organizers, see Town & Country, 516 U.S. at 87[1995] USSC 94; , 116 S.Ct. 450. In the FMLA, Congress did not provide separate protection for "job applicants" and for "employees." The Supreme Court has repeatedly observed that the word "employee" "is not treated by Congress as a word of art having a definite meaning" that would, for example, exclude prospective or former employees. NLRB v. Hearst Publications, Inc., 322 U.S. 111, 124, 64 S.Ct. 851, 88 L.Ed. 1170 (1944) (internal quotation marks and citation omitted).Consequently, the second stage of the Chevron analysis comes into play: whether the Secretary's reading of the statute is a reasonable one. See Massachusetts v. FDIC, [1996] USCA1 621; 102 F.3d 615, 622 (1st Cir.1996). The statute, read as a whole and in light of its purposes, leads to the conclusion that the Secretary's broad definition of "employees" is reasonable      Go Next Contd.