Poorly considered dicta from the Sixth Circuit

Sandusky Wellness Ctr., LLC v. Medco Health Solutions, Inc., No. 14-4201 (6th Cir. June 3, 2015.

A pharmacy benefit manager—a kind of intermediary between health care plans and insurance companies—sent two faxes to a chiropractic company. Were these faxes “unsolicited advertisements” under the Telephone Consumer Protection Act? The Sixth Circuit decides they weren’t. 

That holding seems unobjectionable under the particular facts of this case. Far more troubling, though, are the unnecessary dicta about statutory interpretation that the Sixth Circuit throws in the mix. The chiropractic company asks the Sixth Circuit to interpret the Telephone Consumer Protection Act broadly because it’s a remedial statute. Here’s how the Sixth Circuit responds:

And no, we won’t “broadly construe” the Act in [the chiropractic company’s] favor because it is a so-called “remedial statute.” As applied today, that canon is “either incomprehensible or superfluous.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 364–66 (2012). Why interpret a statute’s language broadly or narrowly (as opposed to just reasonably or fairly)? And since all statutes remedy what’s seen as a problem, which statutes do not deserve a broad construction? Id. at 364. In any event, insofar as our case law requires the canon’s application at all, it doesn’t require it when the statute’s language is plain, as it is here.

(Some citations omitted.)

It’s disappointing to see Scalia and Garner’s crusade against the remedial-legislation canon getting any traction in the courts. The canon has an unimpeachable pedigree—it goes back to Blackstone, among others—so there’s no good reason for Scalia and Garner to single it out for criticism. 

Scalia and Garner object to the canon on the ground that its scope is vague. They play dumb about what “remedial legislation” could mean, asking: “Does any statute not seek to remedy an unjust or inconvenient situation?” This question misses the sense in which “remedial” is being used by the remedial-legislation canon. The term “remedial” is reserved for statutes that aim to solve broad problems in a comprehensive way (think workers’ comp, or Title VII or, dare I say it, the ACA). Contrast this with many other kinds of statutes. Some statutes (large parts of the UCC, for example) codify already-existing principles. Others (prohibitions against murder or theft or fraud) penalize timeless evils. Still others (traffic or zoning codes) set down rules primarily so that people can coordinate their behavior. None of these statutes is remedial in the canonical sense.

Now do courts sometimes have to make judgment calls about what counts as “remedial”? Sure. But most canons require judgment calls, as Scalia and Garner themselves admit. And to make the judgment calls that the remedial-legislation canon requires, courts can consult the body of case law built up around the canon. 

Scalia and Garner also feign ignorance about what a “broad” reading could mean. But the cases that apply the remedial-legislation canon are quite clear about what it means: when a remedial statute is genuinely ambiguous, you pick the broader reading. That’s really not very mysterious. Here, the Sixth Circuit saw the statute as unambiguous, so there was no need to get to the remedial-legislation canon at all. This is poorly considered dictum.