Statutory Construction: “There Is Currently a Circuit Split over Whether the Existence of a Circuit Split Is Evidence of Statutory Ambiguity”
Cuellar de Osorio v. Napolitano, 2012 U.S. App. LEXIS 20177 (9th Cir. Sept. 26, 2012) (M. Smith, J., dissenting):
Footnote 1. I do not state or imply that a circuit split is evidence that a statute is ambiguous, although the Supreme Court has stated that "contrasting positions of the respective parties and their amici" may demonstrate that a statute "do[es] embrace some ambiguities." Dewsnup v. Timm, 502 U.S. 410, 416 (1992); see also Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 739 (1996) ("In light of the two dissents from the opinion of the Supreme Court of California, and in light of the opinion of the Supreme Court of New Jersey creating the conflict that has prompted us to take this case, it would be difficult indeed to contend that the word 'interest' in the National Bank Act is unambiguous with regard to the point at issue here.") (internal citations omitted).
Of course, "[t]he plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). I merely point out the common sense proposition that if the intent of Congress were truly clear, it would be surprising that so many courts misread the statute. Nevertheless, it is worth noting that there is currently a circuit split over whether the existence of a circuit split is evidence of statutory ambiguity. Compare Snell Island SNF LLC v. NLRB, 568 F.3d 410, 419-20 (2d Cir. 2009) (evidence), vacated on other grounds, 130 S. Ct. 3498 (2010), McCreary v. Offner, 172 F.3d 76, 82-83 (D.C. Cir. 1999) (same), and In re S. Star Foods, Inc., 144 F.3d 712, 715 (10th Cir. 1998) (same), with Allapattah Servs., Inc. v. Exxon Corp., 333 F.3d 1248, 1254 n.4 (11th Cir. 2003) (not evidence), aff'd, 545 U.S. 546 (2005), and Rosmer v. Pfizer Inc., 263 F.3d 110, 118 (4th Cir. 2001) (same).
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