Leave it to a lawyer (President Bill Clinton) to explain that the answer to a potentially incriminating question “depends on what the meaning of the word ‘is’ is.” And leave it to nine lawyers (the Justices of the U.S. Supreme Court) to explain that the outcomes of two recently decided cases depend on the statutory meanings of “decision” and “law”—two seemingly ordinary words that are etched into every lawyer’s vocabulary.
In T-Mobile South, LLC v . City of Roswell, Georgia, No. 13-975 (decided Jan. 14, 2015), the Supreme Court addressed the question of “whether, and in what form, localities must provide reasons when they deny telecommunication companies’ applications to construct cell phone towers.” Slip op. at 1. The federal Telecommunications Act provides that “[a]ny decision by a State of local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.” 47 U.S.C. § 332(c)(7)(B)(iii) (emphasis added). Following a public hearing, the Roswell City Council voted to deny T-Mobile South’s application to erect a 108-foot tall cell phone tower disguised as an artificial pine tree. At the hearing, T-Mobile South testified in support of its application, but City Council members expressed their concerns about locating the tower in a residential area. Two days later, the City’s Planning and Zoning Division sent a letter to T-Mobile South advising that the application had been denied, but providing no reasons for the denial. Instead, the letter stated that minutes of the public hearing could be obtained from the City Clerk. Those minutes were not available for another 26 days. Slip op. at 2-4.
T-Mobile South filed suit, alleging that the City had failed to comply with the requirements of § 332(c)(7)(B)(iii). A federal district court granted summary judgment, holding that the City violated the Act by failing to provide a written decision that stated the reasons for the denial of the application. The Eleventh Circuit reversed, and the Supreme Court granted review.
The Court held that the Telecommunications Act “requires localities to provide reasons when they deny applications to build cell phone towers,” id. at 6, but that nothing in the Act “imposes any requirement that the reasons be given in any particular form . . . so long as the locality’s reasons are stated clearly enough to enable judicial review.” Id. at 9. In particular, the Court rejected T-Mobile South’s argument “that the word ‘decision’ in the statute—the thing that must be ‘in writing’—connotes a written document that itself provides all the reasons for a given judgment.” Id. at 12. Instead the Court indicated that the detailed minutes of the City Council’s meeting provided a “written record” of the reasons for the denial, although not soon enough to satisfy the statute’s requirements. Id. at 14.
Interestingly, the Court suggested that the word “decision” is not a “term of art,” and for that reason, can have different meanings in different statutes. See id. at 12 n.5. Indeed, one week after deciding T-Mobile, the Court indicated in Gelboim v. Bank of America Corp., No. 13-1174 (decided Jan. 21, 2015), that the phrase “final decision” in 28 U.S.C. § 1291 (vesting federal courts of appeals with jurisdiction over “all final decisions of the district courts”) should be accorded “a practical rather than a technical construction.” Gelboim, slip op. at 2 (internal quotation marks omitted).
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In Department of Homeland Security v. MacLean, No. 13-894 (decided Jan. 21, 2015), the Supreme Court addressed the meaning of “law.” A federal air marshal was fired on the ground that he had publicly disclosed “certain sensitive security information”—information about cancelled air marshal missions—in violation of Transportation Security Administration (TSA) regulations. He filed suit seeking “whistleblower” protection under 5 U.S.C. § 2302(b)(8)(A), which protects “an employee who discloses information revealing ‘any violation of any law, rule, or regulation,’ or ‘a substantial and specific danger to public health or safety.’” Slip op. at 1. There is an exception in § 2302(b)(8)(A), however, “for disclosures that are ‘specifically prohibited by law.’” Ibid. (emphasis added).
The plaintiff air marshal did not dispute that his disclosure was prohibited by TSA regulations. TSA argued that as a result, the statutory exception for disclosures “specifically prohibited by law” deprived the plaintiff of whistleblower protection. But does “law” include regulations for purposes of the statutory exception? The Supreme Court addressed the question of “whether a disclosure that is specifically prohibited by regulation is also ‘specifically prohibited by law under Section 2302(b)(8)(A).” Id. at 6. The Court held that “[t]he answer is no” because “[t]hroughout Section 2302, Congress repeatedly used the phrase “law, rule, or regulation,” but did not do so in the statutory whistleblower-protection exception, where “it used the word ‘law’ standing alone.” Id. at 7. The Court explained “[t]hat is significant because Congress generally acts intentionally when it uses particular language in one section of a statute but omits it in another,” especially when that occurs “in close proximity” and/or one of the phrases or words is used repeatedly. Ibid. Thus, the Court held that “the TSA’s regulations do not qualify as ‘law’ for purposes of Section 2302(b)(8)(A).” Id. at 11.
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The overarching take-away message from these decisions is that meaning of seemingly ordinary words or commonplace legal terms may depend on their statutory context. Lawyers who draft legislative language, as well as those of us who argue what legislative language means, should take heed.