December 6th Cincy/NKY FBA Event Featuring Ohio SG, Kentucky SG, and Appellate AUSA

Readers of this blog may be interested in an event that the Cincinnati/Northern Kentucky chapter of the Federal Bar Association is hosting on Tuesday, December 6th from 4:00 to 5:00 p.m. at the Taft Center in Cincinnati (425 Walnut St., 2nd floor of U.S. Bank building). The event will feature a panel consisting of Benjamin Flowers, Matthew Kuhn, and Alexis Zouhary. Ben is the Solicitor General of Ohio, Matt is the Solicitor General of Kentucky, and Alexis is an appellate Assistant United States Attorney in the Southern District of Ohio. The title of the event is, “Representing the Government on Appeal.” Naturally, much of the discussion will focus on Sixth Circuit appellate practice.

Those interested can register at this link. Registration is free for FBA members, judges, law clerks, and court staff. Registration is $15.00 for everyone else.

States’ Title X Challenge Returns to Sixth Circuit

Readers of this Blog may recall that, earlier this year, we covered the Sixth Circuit’s decision declining to enjoin (pending appeal) a 2021 Health and Human Services Rule that does two notable things: (1) the Rule eliminates the prior Administration’s requirement “that grantees create strict physical and financial separation between their Title X programs and any abortion services they may provide” and (2) the Rule requires “that grantees provide referrals to abortion services when requested by the patient.” The motions panel consisted of Judges Boggs, Bush, and Larsen.

Ohio and eleven other States sued under the APA, claiming the Rule was “arbitrary, capricious, and contrary to law,” and sought a preliminary injunction. Judge Black of the Southern District of Ohio found that the States had not met their burden of establishing their entitlement to a preliminary injunction. The motions panel agreed, holding that the States had not satisfactorily shown they would suffer irreparable harm.

Now the States, led by Ohio, are back at the Sixth Circuit. This Thursday, October 27, the Sixth Circuit will hear oral argument in the States’ merits-stage appeal of the District Court’s order denying the States a preliminary injunction. The merits panel consists of Judges Moore, Thapar, and Larsen. (Notably, Judge Larsen was also on the motions panel.) But if you thought this appeal was just the States’ motions-stage-appeal redux, you would be mistaken.

Recall, the motions panel held that, at least at the time of the motion panel’s decision, it was too speculative to say whether the States would receive less money in the next round of Title X funding. There’s been an interesting development on that front, however. Six days after HHS submitted its response brief in this appeal, HHS announced its Title X grant amounts to States and other competing grantees for 2022-23. Notably, the announcement indicates that some of the appellant States will be receiving fewer Title X funds for the upcoming year than they had received the previous year. For example, the Ohio Department of Health was awarded $7,040,000, which is a decrease of $1,760,000 from its previous award of $8,800,000. Meanwhile, Planned Parenthood of Greater Ohio, which had left the program before HHS’s adoption of the 2021 Rule, has now been awarded $2 million. HHS did not contest the States’ motion for the Sixth Circuit to take judicial notice of the announcement.

It will be interesting to see whether the decrease in funding for some of the States (and increase in funding for competing grantees) changes the Sixth Circuit’s calculus on whether the States are entitled to the preliminary injunction they seek. Of course, to get a preliminary injunction, the States will also need to show they are likely to succeed on the merits. And because the motions panel largely rested its decision on the States’ inability (at the time) to show irreparable harm, we know very little about what the Sixth Circuit thinks about the States’ arguments on the merits. Well, perhaps until one tunes into oral argument this Thursday. And tune in, we shall.

Watch Sixth Circuit Best Practices Webinar

This Wednesday, October 5th, at 1 p.m. EDT, the American Bar Association will be hosting a 1.5 hour webinar discussion of best practices for litigating in the Sixth Circuit. The webinar will feature two sitting Sixth Circuit judges, Chief Judge Jeffrey S. Sutton and Judge Jane B. Stranch. They will be joined by our own Lauren S. Kuley, who co-chairs Squire Patton Boggs’s Appellate & Supreme Court practice, and moderator Stephen J. van Stempvoort, who chairs Miller Johnson’s Appellate practice group.

The presentation will feature a wide-ranging discussion of Sixth Circuit and appellate practice, with topics including the Court’s local rules, the mediation program, motions practice, and recommendations for briefing and oral argument. It is part of the ABA’s “Riding the Circuits” series, which seeks to provide insight on each of the federal circuits.

A link to the webinar, which will be recorded, can be found here.

Sixth Circuit Denies Government Emergency Relief in Air Force Vaccine Mandate Case

This past Friday afternoon, the Sixth Circuit dealt a blow to the Department of the Air Force’s efforts to overturn a District Court’s class-wide, preliminary injunction against the Department. Specifically, the Sixth Circuit denied the Department’s emergency motion to stay the District Court’s class-wide injunction. Judge Matthew W. McFarland, of the Southern District of Ohio, had ordered the Department to not take any disciplinary or separation measures against a class of some 10,000 unvaccinated service members. The service members had alleged that the Department applied a general, discriminatory policy of denying their requests for religious exemptions from the Secretary of Defense’s vaccine mandate applicable to all members of the armed forces. The plaintiffs argued that the Department’s policy violated their rights under the Religious Freedom Restoration Act (RFRA) and the Free Exercise Clause.

For the most part, the Department focused its emergency motion on the District Court’s decision to certify the class, arguing that the District Court abused its discretion in doing so. The Sixth Circuit disagreed in an opinion written by Judge Kethledge and joined by Judge Bush and Judge Murphy. The Court held, instead, that the Department was unlikely to prevail in its appeal of the class-wide preliminary injunction.

In particular, the Sixth Circuit rejected the Department’s argument that the plaintiffs were unable to satisfy Rule 23(a)’s commonality and typicality requirements for class certification. Contrary to the Department’s arguments, the Sixth Circuit held that the plaintiffs had offered up a “common contention” whose resolution would “resolve an issue that [was] central to the validity of each one of the claims in one stroke.” That common contention was the contention that the Department “operated under a general policy of discrimination.” If true, that would likely entitle the class to relief under both RFRA and the Free Exercise Clause.

As often happens with emergency motions, the panel tipped its hand a little as to how it would decide the merits of the Department’s preliminary-injunction appeal. The Court noted, for example, that its “own review of the record [did] nothing to convince [the panel] that the Department is likely to show” it did not enforce a general discriminatory policy. In support of the point, the Court pointed to evidence in the record indicating that the Department had denied all or close to 100% of all religious exemption requests during the relevant period.

Ordinarily, a randomly assigned Sixth Circuit motions panel does not hold on to the case and issue an opinion on the merits as well. But it looks likely that this appeal will play out differently. Probably in recognition of the urgency and importance of the issues involved, the motions panel expedited the Department’s appeal of the district court’s class-wide preliminary injunction. Under the Court’s order, the Department has two weeks to file its principal brief and the plaintiffs have two weeks to respond. The Department then gets seven days to reply. The Court also scheduled argument in the appeal for October 19 and said “we will strive to decide the Department’s appeal in November.” (Emphasis added). So, all signs point to the same panel handling the merits as handled the motion. That means the Department will need to work hard (and fast) if it is to have a shot at changing the panel’s mind in Round 2 of the appeal.

Welcome to the Sixth Circuit, Judge Mathis

On Thursday, September 8, 2022, the U.S. Senate confirmed Tennessee lawyer Andre Mathis to a seat on the Sixth Circuit. That seat opened up on November 18, 2021, when Judge Bernice Donald announced she was taking senior status.

Judge Mathis brings an impressive range of civil and criminal litigation experience with him to the bench. Judge Mathis’s confirmation is also notable for making him the first African American man to occupy a seat on the Court from Tennessee.

For more information about Judge Mathis, you can read our original write-up about his nomination. Or, for a more detailed portrait, you can review his Senate Judiciary Questionnaire.

The Sixth Circuit Appellate Blog celebrates Judge Mathis’s confirmation to the Court. We look forward to his many years of upcoming service on the bench. And we’ll continue to look forward to many more years of service from Judge Donald as a senior judge.

Welcome, Judge Mathis!

In Concurrence, Judge Thapar Cautions: Don’t Rely Too Much on Agency Guidance

Judge Thapar issued a short and sweet concurrence today that cautioned against overly relying on agency guidance that has not gone through notice and comment. The respondent in Huscoal, Inc. v. Director, __ F.4th __ (6th Cir. 2022), had filed a claim for survivor’s benefits under the Black Lung Benefits Act. She argued that her husband had died because of his coal-mining job at Huscoal, Inc. The Administrative Law Judge (ALJ) granted the respondent’s claim and the Benefits Review Board affirmed. The Sixth Circuit affirmed, too, in an opinion written by Judge Gilman and joined by Judge Griffin and Judge Thapar.

The sole issue at the Sixth Circuit was whether substantial evidence supported the ALJ’s conclusion that the respondent’s husband suffered from an illness that arose “at least in part” out of his coal-mine employment. The husband’s employer and the employer’s insurance carrier argued “no,” pointing to the husband’s 60-year smoking history. The employer and carrier also faulted the ALJ for, in their view, improperly relying on a doctor’s opinion based on (again in their view) inaccurate information.

The Sixth Circuit held that substantial evidence supported the ALJ’s decision, including the ALJ’s decision to credit the doctor’s opinion. In some key parts of its decision, however, the ALJ relied on the agency’s preamble to the relevant regulations. That is what Judge Thapar took issue with in his concurrence.

Judge Thapar noted at the outset that he joined the majority’s opinion in full. Judge Thapar nonetheless found it “concerning” that the ALJ had “entirely discounted the testimony of two experts based on one line from a guidance document–the DOL’s Preamble to the Black Lung Benefits Act regulations.” The petitioners did not “challenge that reasoning” so Judge Thapar joined the majority opinion in full. But Judge Thapar wrote separately to explain the reasons for his concern.

First and foremost, “the Preamble didn’t go through notice and comment.” Notice and comment matters, explained Judge Thapar, because it “guard[s] against underinformed agency action and protect[s] regulated parties from unanticipated changes to their rights and duties.” As a result, treating the preamble as binding “would rob the public of the input and warning the law demands.”

That was especially troublesome here because, according to Judge Thapar, the preamble at issue undermined the black-lung regulations. And, unlike the preamble, the regulations had gone through notice and comment, so “contradicting their mandate [was] unlawful.”

In concluding, Judge Thapar reiterated that had the petitioners “argued on appeal that the ALJ’s order read the [p]remable as binding,” the court would have needed “to more closely scrutinize the ALJ’s reasoning.” But the petitioners had only raised a substantial-evidence challenge. And Judge Thapar agreed with the majority that the “ALJ’s decision passe[d] evidentiary muster.”

Although a relatively short concurrence, Judge Thapar’s opinion offers much to think about. As probably most federal practitioners know, interpreting agency regulations is a standard feature of federal practice and has been for a long time. How much weight to assign agency guidance, prefatory language, commentary, etc., that itself has not gone through notice and comment is an issue that often comes up. Judge Thapar’s concurrence is a good reminder that even if such material can be illuminating at times, at the end of the day, it didn’t go through notice and comment. So, one should never reflexively assume it accurately states the law. The petitioners in this case learned that the hard way.

Sixth Circuit Opinion Reversed in Marietta Memorial Hospital Employee Health Benefit Plan v. DaVita Inc.

The Supreme Court on Tuesday issued an opinion in Marietta Memorial Hospital Employee Health Benefit Plan v. DaVita Inc., which reversed the Sixth Circuit’s October 2020 decision finding that DaVita Inc. plausibly asserted a claim against an Ohio hospital’s health plan for unlawfully discriminating against patients with end-stage renal disease by offering low reimbursement rates for outpatient kidney dialysis.  Specifically, the Sixth Circuit majority found that the health plan violated the Medicare Secondary Payer Act’s anti-discrimination provision—which prohibits a health plan from differentiating its benefits based on whether an individual has end-stage renal disease—by offering lower reimbursement rates for services offered by dialysis providers.   See DaVita, Inc. v. Marietta Mem’l Hosp. Emple. Health Ben. Plan, 978 F.3d 326 (6th Cir. 2020).  The Sixth Circuit, over Judge Murphy’s dissent, concluded that the anti-discrimination provision authorized “disparate-impact” liability, and that the limited payments for dialysis treatment had a disparate impact on individuals with end-stage renal disease.  See id. at 349. 

In a succinct seven page opinion written by Justice Kavanaugh on behalf of a 7-2 majority, the Supreme Court reversed.  Justice Kavanaugh, borrowing language from Judge Murphy’s dissent, rejected the Sixth Circuit majority’s “disparate-impact” theory because the text of the Act’s anti-discrimination provision “does not ask about ‘the effects of non-differentiating plan terms that treat all individuals equally.’” Op. at 5 (quoting 978 F. 3d at 363 (opinion of Murphy, J.)).   And the text of the plan, according to the opinion, did not “differentiate in the benefits provided to individuals with and without end-stage renal disease,” because it provided the same benefits, “including the same outpatient dialysis benefits, to individuals with and without end-stage renal disease.”  Id. at 4.  In addition to being “atextual,” the Court also found that a disparate-impact theory “would be all but impossible to fairly implement.” Id. at 5.  According to the opinion, “Courts would be entirely at sea in trying to determine an appropriate benchmark or comparator for outpatient dialysis.” Id. at 6. 

Justice Kagan, joined by Justice Sotomayor, dissented.  The dissent agreed with the Justice Kavanaugh’s opinion on disparate impact, but would have instead found outpatient dialysis to be a “proxy” for end-stage renal disease, because nearly all patients with end-stage renal disease, and hardly anyone else, undergo outpatient dialysis.  Dissent at 1–2.  The majority opinion, according to the dissent, “flies in the face of both common sense and the statutory text.”  Id. at 2.

Reception of the opinion is, naturally, split, with Law360 reporting that counsel for the health plan is “very pleased that the Supreme Court reads the Medicare Secondary Payment Act the way that it is written,” and the CEO of DaVita criticizing the Court’s “narrow interpretation of the” Medicare Second Payer Act and limiting the Act’s ability “to protect some of the most vulnerable patients in the healthcare system.” 

With Shoop v. Twyford, also decided Tuesday, the Court has issued opinions on each of the ten cert. petitions granted from the Sixth Circuit this term. 

The Corpus Linguistics Bug: New Cases in the Sixth, Fourth Circuits.

In a previous post, we discussed corpus linguistics, an emerging tool in statutory and constitutional interpretation.  It appears that the corpus linguistics bug is spreading, both in this Circuit and to other circuits as well.  Two recent cases serve as a reminder that the Sixth Circuit is both a thought leader in analyzing and utilizing this new variant of legal analysis and is an increasingly powerful vector of transmission. 

Consider Fulkerson v. UNUM Life Ins. Co. of Am., a Sixth Circuit opinion handed down a week ago.  No. 21-3367, 2022 U.S. App. LEXIS 15363 (6th Cir. June 3, 2022).  In Fulkerson, a panel consisting of Chief Judge Sutton and Judges Siler and Readler weighed whether reckless driving was a “crime” pursuant to the crime exclusion of an insurance policy.  Id. at *4.  Judge Readler penned the opinion.   He concluded that reckless driving was a crime for the purposes of the insurance policy by looking to dictionaries and “the tapestry of state laws” regulating the conduct in question.  Id. at *5-8.  Following a belt and suspenders approach, Judge Readler also used corpus linguistics, “a helpful tool in assessing common usage” to support his conclusion that “[t]he contemporary common usage of the term ‘reckless driving’” “fits within the ordinary meaning of ‘crime.’”  Id. at *8.  As Judge Readler noted, “[a]lthough more commonly used in the constitutional and statutory interpretive settings, these resources seemingly have the same force in many contractual settings as well.  Id. at *9 (citing Stephen C. Mouritsen, Contract Interpretation with Corpus Linguistics, 94 Wash. L. Rev. 1337, 1341 (2019)).  Judge Readler then laid out the results of his analysis of the Corpus of Contemporary American English for the term “reckless driving” during the relevant time period.  Id. at *10-13.  “Tellingly, a vast majority recount instances in which some manner of prosecution occurred, where the individuals either were ‘charged,’ ‘convicted,’ and/or ‘sentenced for reckless driving” and others “explicitly refer[ed] to ‘reckless driving’ as a crime[.]”  Id.  

A few key takeaways: 

  • Judge Readler’s analysis is consistent with our point in our last post: “corpus linguistics is not a silver bullet.”  And, as Judge Thapar noted, “corpus linguistics is one tool . . . but not the whole toolbox.”  Wilson v. Safelite Grp., Inc., 930 F.3d 429, 441 (6th Cir. 2019) (Thapar, J., concurring).  If invoked, it will likely be used as evidence that supplements other more common interpretative modalities.
  • The makeup of this panel also shows the increased appetite for, or at least lack of aversion to, corpus linguistics analyses in this Circuit.  Previously, Judges Thapar, Readler, and Griffin wrote or joined opinions relying, in part, on corpus linguistics.  See United States v. Woodson, 960 F.3d 852, 855 (6th Cir. 2020) (6th Cir. 2020) (Judges Griffin and Thapar joining an opinion in which Judge Readler invoked corpus linguistics); Wilson v. Safelite Grp., Inc., 930 F.3d at 438 (Thapar, J., concurring) (invoking corpus linguistics in statutory analysis).  We can now add Chief Judge Sutton and Judge Siler to this list.  As a reminder, Judge Stranch penned a lengthy concurrence to her own opinion in Wilson v. Safelight expressing her concerns with using corpus linguistics.  Id. at 445-48 (Stranch, J., concurring).
  • Before Fulkerson, corpus linguistics was typically used in the constitutional and statutory contexts.  From what we can tell, this is the first time any federal court has applied corpus linguistics to a private contract. Corpus linguistics has officially entered the contracts arena, making understanding this tool all the more imperative for all lawyers. 

Next, consider United States v. Rice, a Fourth Circuit opinion handed down yesterday.  No. 19-4489, 2022 U.S. App. LEXIS 15886 (4th Cir. June 9, 2022).  The Fourth Circuit was “asked to decide if the North Carolina crime of assault inflicting physical injury by strangulation is a ‘crime of violence’” for the purposes of sentencing enhancement under the U.S. sentencing guidelines.  Id. at *1-3.  We will not go into this case too deeply, but do note that they concluded strangulation was a crime of violence.  It is notable, however, that Judge Quattlebaum, writing for the majority,  cited to Judge Thapar’s concurring opinion in Wilson v. Safelight for the proposition that, “[a]lthough relatively new, corpus linguistics is gaining traction as an interpretive tool.”  Id. at *10.  Judge Thapar’s jurisprudence and this Circuit’s continued use of corpus linguistics in tough cases will likely push other circuits to consider conducting corpus linguistics analyses as well.  Moreover, this is the first instance that a corpus linguistics analysis was featured in a Fourth Circuit opinion, albeit in a footnote, to supplement the court’s analysis. 

The corpus linguistics bug is spreading in our own Circuit and spreading to others.  We recommend you read up on this tool of statutory, constitutional, and now contractual interpretation and will keep you updated on any interesting new developments.

Rachel Bloomekatz Nominated to the Sixth Circuit

Today, President Biden nominated Columbus, Ohio appellate litigator Rachel Bloomekatz to the Sixth Circuit as part of his eighteenth round of judicial nominees, which would fill the seat vacated by Judge R. Guy Cole Jr.  Judge Cole announced in December his intention to take senior status. 

Rachel Bloomekatz is currently a solo practitioner at Bloomekatz Law, LLC, a law firm that she founded in 2019 in Columbus, Ohio.  She specializes in public interest work and has represented nonprofit organizations including Everytown for Gun Safety, the Public Health Law Center, the American Heart Association, and the Ohio Conference of the NAACP.   She also served as state counsel for Biden’s 2020 campaign in Ohio.  Prior to opening her own firm, Bloomekatz was a principal at Gupta Wessler PLLC and an associate at Jones Day, LLC.   She also clerked for Chief Justice Margaret Marshall on the Massachusetts Supreme Judicial Court, served as an Assistant Attorney General in Boston, Massachusetts, and clerked for Justice Stephen Breyer on the United States Supreme Court.  She received her J.D. from UCLA School of Law and her A.B., magna cum laude, from Harvard University. 

Bloomekatz is President Biden’s third nomination to the Sixth Circuit, with U.S. District Judge Stephanie Dawkins Davis having been confirmed by the Senate yesterday, and Memphis litigator Andre Mathis awaiting a Senate vote after clearing the Senate Judiciary Committee in February.  

Corpus Linguistics in the Sixth Circuit and Beyond

Corpus linguistics has been in the news lately, which gives us a chance to discuss this interesting tool of statutory interpretation and, in the process, revisit some Sixth Circuit views about it.

What is corpus linguistics?  We will let Circuit Judge Amul Thapar explain:

[Corpus linguistics] draws on the common knowledge of the lay person by showing us the ordinary uses of words in our common language. How does it work? Corpus linguistics allows lawyers to use a searchable database to find specific examples of how a word was used at any given time. . . These databases, available mostly online, contain millions of examples of everyday word usage (taken from spoken words, works of fiction, magazines, newspapers, and academic works). . . Lawyers can search these databases for the ordinary meaning of statutory language . . . The corresponding search results will yield a broader and more empirically-based understanding of the ordinary meaning of a word or phrase by giving us different situations in which the word or phrase was used across a wide variety of common usages. . . In short, corpus linguistics is a powerful tool for discerning how the public would have understood a statute’s text at the time it was enacted.

Wilson v. Safelite Grp., Inc., 930 F.3d 429, 440 (6th Cir. 2019) (Thapar, J., concurring) (internal citations omitted).

Corpus linguistics is a tool used to identify the original public meaning of words – no small thing when the outcome of a case often hinges on the meaning of a single word in a statute or the Constitution.  And, if you fail to address corpus linguistics in your brief, you may receive a letter from the court requesting you to submit supplemental briefing correcting the omission.

Consider what happened a few days ago in the highly anticipated Ninth Circuit case of Jones v. Bonta, which involved the Second Amendment.  Judges Nelson, Lee, and Stein “asked the parties to file supplemental briefing addressing in part the applicability of corpus linguistics to [the] case.”  No. 20-56174, 2022 U.S. App. LEXIS 12657, at *16 n.6 (9th Cir. May 11, 2022).  Similarly, a Sixth Circuit panel of judges consisting of Judges Thapar and Siler and Eastern District of Kentucky Judge Hood “asked the parties to file supplemental briefs on the original meaning of Article III’s case-or-controversy requirement, specifically whether the corpus of Founding-era American English helped illuminate that meaning.”  Wright v. Spaulding, 939 F.3d 695, 700 n.1 (6th Cir. 2019).  In neither Jones v. Bonta nor Wright v. Spaulding did corpus linguistics control the outcome of the case.  But they do show the appetite among judges for bringing new tools to bear when discerning the original public meaning of the Constitution or other statutory text.

Regardless of prior briefing, judges at the district or circuit level may use corpus linguistics to rule for or against you.  Two cases illustrate the point.  See United States v. Woodson, 960 F.3d 852 (6th Cir. 2020); Health Freedom Def. Fund, Inc. v. Biden, No. 8:21-cv-1693-KKM-AEP (M.D. Fla. Apr. 18, 2022).  These examples underscore corpus linguistics’ utility in ascertaining the meaning of statutes.

In Woodson, the defendant and his accomplices robbed over a dozen diamond stores across multiple states.  At sentencing, the district court determined that the defendant’s sentence should be enhanced because the defendant “relocated, or participated in relocating, a fraudulent scheme to another jurisdiction to evade law enforcement or regulatory officials.”

Judge Readler, writing for the majority, helpfully broke down the statute into four elements that trigger the enhancement:  “(1) relocation or participation in relocation, (2) of a fraudulent scheme, (3) to another jurisdiction, (4) to evade law enforcement or regulatory officials.”  In dispute were the district court’s reading of the first two elements.  The defendant argued that because the scheme’s “home base” or “hub” remained Toledo, Ohio throughout the robberies, he never relocated the scheme.  The district court ruled otherwise, holding that the defendant “had purposefully targeted stores” across multiple states “to impede communication between law enforcement, triggering the relocation enhancement.”

The panel disagreed with Woodson’s interpretation of “a scheme” as something tangible, such as a “hub.”  Judge Readler, referencing numerous dictionaries, instead found that a scheme is something intangible such as a plot or plan.  Thus, the district court was correct that purposefully targeting diamond stores in multiple states was sufficient to satisfy the first two elements.  Not stopping there, Judge Readler conducted a corpus linguistics analysis of the term “scheme”, and found the analysis was in agreement with the dictionaries cited.  Corpus linguistics extinguished any doubt.

In Health Freedom Def. Fund, Inc., Middle District of Florida Judge Kathryn Kimball Mizelle used corpus linguistics to fortify her opinion in one of the most publicized cases so far this year.  The Health Freedom Defense Fund challenged the CDC’s imposition of a mask mandate on all air travel in the U.S. pursuant to the Public Health Services Act of 1944 (“PHSA”).

The PHSA authorized the CDC to “make and enforce such regulations” necessary to “prevent the introduction, transmission, or spread of disease” through “fumigation, disinfection, sanitation” and other actions.  The U.S. argued that the airline mask mandate was a sanitation measure.  Judge Mizelle found that, at the time of the passage of the PHSA, sanitation had one of two meanings: 1) “measures that clean something or that remove filth” or 2) “measures that keep something clean”.  If sanitation was given the former meaning, the mandate failed because masks do not actively clean anything.  If given the latter, the mask mandate should be upheld because masks keep the air clean from COVID-19.

Judge Mizelle relied upon “all the traditional tools of statutory interpretation” to settle the question.  First she looked to context.  “Sanitation” was accompanied by active (not preventative) words such as fumigation and disinfection.  This favored the first meaning.  The structure and history of the statute were also in harmony with the first definition.

Moreover, by using corpus linguistics, Judge Mizelle determined that “customary usage at the time agree[d]” with her findings.  She searched uses of “sanitation” in the relevant corpus during the relevant time period and found that the most frequent use of sanitation was in the context of “a positive act to make a thing or place clean” whereas only five percent was “of sanitation as a measure to maintain a status of cleanliness, or as a barrier to keep something clean.”  As such, Judge Mizelle concluded that “sanitation” carried the first meaning and the mask mandate was unauthorized.

Corpus linguistics is not a silver bullet.  As Judge Thapar noted, “corpus linguistics is one tool—new to lawyers and continuing to develop—but not the whole toolbox. Its foremost value may come in those difficult cases where statutes split and dictionaries diverge.”  Wilson v. Safelite Grp., Inc., 930 F.3d 429, 440 (6th Cir. 2019);  see also id. at 445-48 (Judge Stranch, concurring in her own opinion to respond to Judge Thapar’s “endorsement of ‘corpus linguistics’” and noting in particular: practical issues of privileging newsworthy connotations of a term” over “the ordinary meaning,” the difficulty of culling “irrelevant results,” and concerns with courts conducting such statistical analyses).

Yet corpus linguistics is likely something litigators should familiarize themselves with when construing the meaning of a statute or constitutional provision.  You may be asked to brief judges on the matter.  And it might end up being the tool that persuades the court to accept an interpretation of a statute or the Constitution in your client’s favor.