The Sixth Circuit frequently draws on canons when interpreting contract or statutory language, but the canons “are at best only rough guides.” United States v. York, 398 F.2d 582, 585 n.6 (6th Cir. 1968). The Court’s precedent provides litigants with ready responses to four of the most common canon arguments and offers guidance for those drafting contracts and statutes.
The Sixth Circuit has recognized at least three limiting principles to the well-established presumption against surplusage. First, the Court has recognized that redundancy can be a way of indicating emphasis. Doe v. Boland, 698 F.3d 877 (6th Cir. 2012) (“[T]he presumption against surplusage does not apply to doublets—two ways of saying the same thing that reinforce its meaning.”); In re A.P. Liquidating Co., 421 F. App’x 583 (6th Cir. 2011) (holding that surplusage in a contract between telecommunications entities was included for emphasis, where emphasizing the limited number of comparable technologies “ha[d] an obvious purpose in the telecommunications industry”). Second, the Court dislikes ambiguity more than it dislikes surplusage. TMW Enters. v. Fed. Ins. Co., 619 F.3d 574 (6th Cir. 2010) (“The canon is one among many tools for dealing with ambiguity, not a tool for creating ambiguity in the first place.”). Finally, the presumption against surplusage will only apply where it makes sense in the context of the entire statute, not just one provision. See Ford Motor Co. v. United States, 2014 U.S. App. LEXIS 18746 (6th Cir. 2014) (refusing an interpretation that would “merely . . . rescue one sentence from surplusage” because “that reading would frustrate or violate other provisions”).
The Sixth Circuit has recognized at least two specific situations where ejusdem generis (general terms following specific terms will be interpreted to include only items similar to the specific terms) does not apply. Where a “list” contains only one specific item and one general category, separated by an “or,” the canon will not apply. See United States v. Douglas, 634 F.3d 852 (6th Cir. 2011) (declining to apply the canon to the phrase “money or other thing of value,” explaining that the doctrine only applies “list[s] of specific items separated by commas and followed by a general or collective term,” as opposed to a “disjunctive” phrase “with one specific and one general category”). It also will not apply where the provision includes the phrase “including, but not limited to,” or other language demonstrating the drafter’s desire to prevent such a reading. See Cintech Indus. Coatings v. Bennett Indus., 85 F.3d 1198 (6th Cir. 1996) (explaining that the canon does not apply when “the provision . . . express[es] a contrary intent,” by including language such as “including, but not limited to”).
In statutory interpretation, the Sixth Circuit will not apply expressio unius (a list of specific items implies the exclusion of items not listed) where the narrowed construction would undermine the effectiveness of the statute and frustrate Congress’s intent. United States v. Phillips, 50 F. App’x 303 (6th Cir. 2002) (refusing to apply expressio unius where doing so would “allow the defendant to circumvent the statutory priority” and “would be plainly at variance with clear intent of Congress”); Hobart Corp. v. Waste Mgmt. of Ohio, 758 F.3d 757 (6th Cir. 2014) (explaining “that the canon can be overcome by contrary indications that adopting a particular rule or statute was probably not meant to signal any exclusion” and declining to apply expressio unius where it would “defeat” the “principal purpose” of a statute’s limitations periods).
The Sixth Circuit has held that statutes “deal[ing] with the same subject matter” will not always be read in pari materia. Hoge v. Honda of Am. Mfg., 384 F.3d 238 (6th Cir. 2004). In Hoge, the Court refused to read the Family Medical Leave Act in light of the Americans with Disabilities Act, even though it acknowledged that the two statutes ”both regulate the employer-employee relationship,” and their causes of action may often arise from the same “factual scenarios.” Id. However, it concluded that an in pari materia reading would be inappropriate because the FMLA and ADA “have divergent aims, operate in different ways, and offer disparate relief.” Id. Parties seeking to avoid an in pari materia reading should seek to distinguish the statutes in question in these three respects.
Although “interpretive pronouncements” are probably not binding on future panels, see Abbe R. Gluck, Intersystemic Statutory Interpretation: Methodology as “Law” and the Erie Doctrine, 120 Yale L.J. 1898, 1910 (2011), being able to cite Sixth Circuit precedent in support of one’s preferred interpretation will be helpful when appearing before the Court.
