John Scott Bechtel, United States Department of Labor, Intervenor-Plaintiff-Appellee v. Competitive Technologies, Inc., Docket No. 05-2404-Cv

448 F.3d 469

• Court: Court of Appeals for the Second Circuit
• Decided: May 1, 2006
• Docket: 469
• Status: Published

Opinions

Judge LEVAL concurs in the judgment in a separate opinion.

Judge STRAUB dissents in a separate opinion.

DENNIS JACOBS, Circuit Judge:

Competitive Technologies, Inc. (“CTI”) appeals from a judgment of the United States District Court for the District of Connecticut (Covello, /.) granting the applications of John Scott Bechtel and Willie Jacques, Jr.¹ for a preliminary injunction ordering CTI to reinstate them as CTI vice presidents. Bechtel sues to enforce the preliminary order of reinstatement issued by the Secretary of Labor (“Secretary”) upon a finding that Bechtel’s firing violated 18 U.S.C. § 1514A, which is § 806 of the Sai'banes-Oxley Act of 2002. We vacate the injunction, and direct the district court to dismiss this action.

Bechtel filed a complaint .with the Secretary pursuant to 18 U.S.C. § 1514A(b)(l)(A), alleging that the reason CTI discharged him on June 30, 2003 was that he had raised concerns with management about CTI’s financial reporting. On February 2, 2005, the Secretary issued a preliminary order finding that Bechtel’s expression of concern is activity protected by § 1514A and ordering reinstatement. CTI duly objected to the order, and requested a hearing before an administrative law judge (“ALJ”). See 49 U.S.C. § 42121(b)(2)(A); 29 C.F.R. § 1980.107. As of the date of this opinion, the Secretary has not issued a final order.

CTI’s objection to the Secretary’s preliminary order does not stay the reinstatement remedy, see 49 U.S.C. § 42121(b)(2)(A); 29 C.F.R. § 1980.106; nevertheless, CTI has refused to take Bechtel back.

On April 18, 2005, Bechtel filed a complaint in the district court seeking a preliminary injunction requiring CTI to comply with the reinstatement remedy in the preliminary order; the district court issued the requested injunction on May 13, 2005.² CTI appeals from the district court judgment, asserting that (i) the district court lacked jurisdiction to enforce the preliminary order and (ii) in the event that the district court had such jurisdiction, the Secretary’s investigation of Bechtel’s complaint violated CTI’s constitutional right to due process.

I

CTI argues that 18 U.S.C. § 1514A does not confer power on district courts to enforce preliminary orders. “When reviewing a district court’s determination of its subject matter jurisdiction, we review ... legal conclusions de novo.” McCarthy v. Navistar Fin. Corp. (In re Vogel Van & Storage), 59 F.3d 9, 11 (2d Cir.1995).

The power of the inferior federal courts is “limited to those subjects encompassed within a statutory grant of jurisdiction.” Ins. Corp. of In, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 701, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982). Even when the exercise of “[federal] judicial power is desirable or expedient,” jurisdiction does not lie absent statutory authorization. United States v. N. Hempstead, 610 F.2d 1025, 1029 (2d Cir. 1979).

“Statutory construction begins with the plain text and, if that text is unambiguous, it usually ends there as well.” United States v. Gayle, 342 F.3d 89, 92 (2d Cir.2003); see also Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 236, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986). At the same time, “we must ‘interpret [a] specific provision in a way that renders it consistent with the tenor and structure of the whole act or statutory scheme of which it is a part.’ ” United States v. Pacheco, 225 F.3d 148, 154 (2d Cir.2000) (quoting United States v. Bonanno Organized Crime Family of La Cosa Nostra, 879 F.2d 20, 24 (2d Cir.1989)). We “give effect, if possible, to every clause and word of a statute.” Williams v. Taylor, 529 U.S. 362, 404, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (internal quotation marks omitted).

There are three provisions of § 1514A that provide for federal power to enforce actions related to complaints under the statute. None of them authorizes enforcement of preliminary orders.

Of the three, two incorporate provisions of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“AIR21”), 49 U.S.C. § 42121(b) (see 18 U.S.C. § 1514A(b)(2)(A), incorporating by reference provisions of 49 U.S.C. § 42121(b)): AIR21 paragraph (b)(5) and subparagraph (b)(6)(A) authorize district court jurisdiction over actions brought by the Secretary and private parties, respectively, to grant all appropriate relief, including injunctive relief, when there has been a failure of compliance with an order “issued under paragraph (b)(3)” (text in margin³). The reference is to AIR21 paragraph (b)(3), entitled “Final Order.”⁴ Subparagraph (b)(3)(A) specifies when the Secretary must “issue a final order providing the relief prescribed by this paragraph or denying the complaint”; subparagraph (b)(3)(B) authorizes specific remedies for inclusion in final orders upon a finding of a violation; and subsection (b)(3)(C) specifies procedures for dealing with frivolous complaints.

If the Secretary has not issued a final decision within 180 days of the filing of the administrative, complaint, the third provision of 18 U.S.C. § 1514A, subparagraph (b)(1)(B), authorizes jurisdiction in district court over an action for de novo review seeking remedial relief.⁵

None of the provisions of 18 U.S.C. § 1514A authorizing judicial enforcement reference AIR21 subparagraph (b)(2)(A), under which the Secretary issues preliminary orders.⁶ Nor, in the absence of such a specific reference, can any of the potentially relevant statutory text be read reasonably as conferring federal judicial power to enforce orders that are preliminary. I therefore conclude that the district court lacked power to enforce the preliminary order reinstating Bechtel.

II

The district court ruled that AIR21 paragraph (b)(5) and subparagraph (b)(6)(A) confer jurisdiction on district courts to enforce preliminary orders. As the court observed, AIR21 subparagraph (b)(2)(A) provides that preliminary orders should contain the relief prescribed by subparagraph (b)(3)(B) for final orders. The court reasoned that it therefore had authorization to enforce a preliminary reinstatement order as if the order were final.

I disagree. The plain text of subpara-graph (b)(2)(A) incorporates the types of relief specified in subparagraph (b)(3)(B); it nowhere suggests that the two subpara-graphs are to be treated identically for federal jurisdictional purposes. See United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.1972) (per curiam) (“In construing statutes, words are to be given their natural, plain, ordinary and commonly understood meaning unless it is clear that some other meaning was intended.”); see also United States v. Peterson, 394 F.3d 98, 107 (2d Cir.2005) (“[W]hen Congress uses particular language in one section of a statute and different language in another, we presume its word choice was intentional.”). It seems improbable that Congress would have chosen to confer federal judicial enforcement power over preliminary orders by indirection and opacity when it easily could have modified the jurisdictional provisions of AIR21 — paragraph (b)(5) and subparagraph (b)(6)(A)— to encompass subparagraph (b)(2)(A). I therefore conclude that the plain text of the provisions granting enforcement power cannot support a reading that confers on federal courts the power to enforce orders that are preliminary.

In construing the relevant provisions conferring judicial enforcement power, the district court concluded that an interpretation that bars enforcement of preliminary reinstatement orders in district court is inconsistent with the statutory scheme created by 18 U.S.C. § 1514A. This argument gains traction from AIR21 subpara-graph (b)(2)(A), which provides that the filing of objections to a preliminary order does “not operate to stay any reinstatement remedy contained in the preliminary order”: Why provide that the remedy is unstayed unless there is provision for enforcement without delay?

As I have already demonstrated, the statutory language here 'is clear. But even when the statutory language (and legislative history) is unclear, courts do not automatically assume that judicial power is necessary to enforce statutory rights; the need for enforcement is ascertained in light of other considerations. See Chicago & N.W.R. Co. v. United Transp. Union, 402 U.S. 570, 578, 91 S.Ct. 1731, 29 L.Ed.2d 187 (1971) (“[T]he propriety of judicial enforcement turns on the importance of the duty in the [statutory] scheme ...[,] the capacity of the courts to enforce it effectively, and the necessity for judicial enforcement if the right of the aggrieved party is not to prove illusory.”); cf. Alexander v. Sandoval, 532 U.S. 275, 290, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) (“[S]ome remedial schemes foreclose a private cause of action to enforce even those statutes that admittedly create substantive private rights.”). Congress does its own weighing when drafting statutes, and is free to put — by design or as an outcome of the legislative process — companies under a legal obligation to reinstate workers without authorizing instantaneous judicial enforcement.

The likelihood that Congress intended such an unenforceable preliminary order here is buttressed by three considerations:

First, 18 U.S.C. § 1514A(b)(l)(B) provides for de novo review in the district court if the Secretary has not issued a final decision within 180 days of the filing of the complaint. This remedy reduces any need for a judicial order.

Second, a preliminary order is based on no more than “reasonable cause to believe that the complaint has merit[.]” 49 U.S.C. § 42121(b)(2)(A). That is a tentative and inchoate basis for present enforcement.

Third, a preliminary order remains subject to being overturned by the Secretary’s final order or by the district court on appeal from that final order. Given these successive levels of review, the absence of federal judicial power to enforce preliminary orders reasonably could serve to ensure that appeals work their way through the administrative system before the federal courts become involved. Moreover, if the result changes from one level of review to the next, immediate enforcement at each level could cause a rapid sequence of reinstatement and discharge, and a generally ridiculous state of affairs.

Not to the contrary is Martin v. Yellow Freight Sys., Inc., in which we held that the Secretary could enforce in district court an interim order of reinstatement issued by an ALJ (after a full hearing) pursuant to the Surface Transportation Assistance Act (“STAA”), 49 U.S.C. § 31105. 983 F.2d 1201, 1203 (2d Cir.1993). The STAA explicitly conferred jurisdiction on federal district courts over actions brought by the Secretary to enforce both preliminary and final orders. See 49 U.S.C. § 31105(d) (conferring district court jurisdiction over actions brought to enforce orders issued under subsection (b), which authorized Secretary to issue both preliminary and final orders).⁷ However, the STAA nowhere explicitly authorized actions to enforce interim orders. Nevertheless, Yellow Freight held that such orders were enforceable, specifically referencing the need to avoid undermining the statutory purpose of protecting whistleblowers.

The reasoning of Yellow Freight is inap-posite here. Yellow Freight relied on statutory wording that expressly conferred power to enforce preliminary orders, construing that wording to encompass interim orders as well. As Yellow Freight recognized, it makes sense that a scheme providing for the enforcement of preliminary and final orders would likewise provide for the enforcement of interim orders, given that the power to enforce preliminary orders signifies an intent to involve the federal court system in the enforcement process at an early stage, before the employer has received the procedural protections afforded by a full hearing before an ALJ. 983 F.2d at 1203 (“ ‘[W]e do not feel that it is unreasonable or unanticipated that an ALJ, vested with the authority of the See-retary of Labor, would issue an order of reinstatement after a full hearing on the merits of the dispute in light of the Secretary’s ability to issue a reinstatement order after merely a preliminary investigation.’ ”) (quoting Martin v. Yellow Freight Sys., Inc., 793 F.Supp. 461, 469 (S.D.N.Y.1992)). No such inference is available in this present case.

Because I conclude that § 1514A confers no judicial enforcement power over preliminary orders of reinstatement, I do not reach the question whether the Secretary’s investigation violated CTI’s constitutional right to due process. My colleague Judge Leval takes the opposite tack and assumes that § 1514A confers such judicial enforcement power — thus exercising “hypothetical jurisdiction,” Concurring Op. at 479 n. 1— in order to decide that the Secretary’s investigation did violate CTI’s right to due process. I think this analysis proceeds backwards. Judge Leval evaluates the procedures afforded CTI by the standards established in Brock v. Roadway Express, Inc., 481 U.S. 252, 107 S.Ct. 1740, 95 L.Ed.2d 239 (1987), in which the Supreme Court determined that, due to inadequate procedures, an employee’s reinstatement pursuant to a preliminary order under § 405 of the STAA constituted a violation of the employer’s right to due process. But Brock furnishes no basis for an exercise of “hypothetical jurisdiction” here: Even assuming that an unenforceable preliminary order of reinstatement constitutes a deprivation of property, the question whether the Secretary’s investigation violated CTI’s right to due process depends for its answer on whether the resulting preliminary order is judicially enforceable.⁸

“A fundamental and long-standing principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.” Lyng v. N.W. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988); see also Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) (“[I]f a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.”) (citing Siler v. Louisville & N.R. Co., 213 U.S. 175, 191, 29 S.Ct. 451, 53 L.Ed. 753 (1909) & Light v. United States, 220 U.S. 523, 538, 31 S.Ct. 485, 55 L.Ed. 570 (1911)). Here, the non-constitutional basis for decision (the question of statutory judicial enforcement power), while complex and difficult, has the potential to fairly dispose of the case. Nor is this a situation in which the constitutional issue “cannot be avoided.”⁹ Fry v. UAL Corp., 84 F.3d 936, 939 (7th Cir.1996) (Posner, C.J.).

I therefore decline to assume statutory judicial enforcement power in order to determine whether a close, avoidable constitutional claim is meritorious, when that determination is likely controlled by whether there is enforcement power.

Since Judge Leval and I nevertheless concur in the decree, the preliminary injunction is vacated, and the case is remanded for entry of an order of dismissal.

1 . CTI has settled its dispute with Jacques, and he is no longer a party to this appeal.

2 . The facts of this case are set forth more fully in the district court opinion, reported at Bechtel v. Competitive Technologies, 369 F.Supp.2d 233 (D.Conn.2005).

3 . 49 U.S.C. § 42121(b)(5) and (b)(6)(A) read in pertinent part:

(5) Enforcement of order by Secretary of Labor. Whenever any person has failed to comply with an order issued under paragraph [b](3), the Secretary of Labor may file a civil action in the United States district court for the district in which the violation was found to occur to enforce such order. In actions brought under this paragraph, the district courts shall have jurisdiction to grant all appropriate relief including, but not limited to, injunctive relief and compensatory damages.

(6) Enforcement of order by parties.

(A)Commencement of action. A person on whose behalf an order was issued under paragraph [b](3) may commence a civil action against the person to whom such order was issued to require compliance with such order. The appropriate United States district court shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such order.

4 . 49 U.S.C. § 42121(b)(3) reads in pertinent part:

(3) Final order.

(A) Deadline for issuance; settlement agreements. Not later than 120 days after the date of conclusion of a hearing under paragraph (2), the Secretary of Labor shall issue a final order providing the relief prescribed by this paragraph or denying the complaint....

(B) Remedy. If, in response to a complaint filed under paragraph (1), the Secretary of Labor determines that a violation of subsection (a) has occurred, the Secretary of Labor shall order the person who committed such violation to—

(i) take affirmative action to abate the violation;

(ii) reinstate the complainant to his or her former position together with the compensation (including back pay) and restore the terms, conditions, and privileges associated with his or her employment; and

(iii) provide compensatory damages to the complainant.

* :fc * *

(C) Frivolous complaints....

5 .18 U.S.C. § 1514A(b)(l) provides in pertinent part:

(1) In general. A person who alleges discharge or other discrimination by any person in violation of subsection (a) may seek relief under subsection (c), by—

(B) if the Secretary has not issued a final decision within 180 days of the filing of the complaint and there is no showing that such delay is due to the bad faith of the claimant, [bringing] an action at law or equity for de novo review in the appropriate district court of the United States, which shall have jurisdiction over such an action without regard to the amount in controversy.

6 . 49 U.S.C. § 42121(b)(2)(A) reads in pertinent part:

If the Secretary of Labor concludes that there is a reasonable cause to believe that a violation of subsection (a) has occurred, the Secretary shall accompany the Secretary’s findings with a preliminary order providing the relief prescribed by paragraph [b](3)(B).

7 . In explicitly authorizing district court jurisdiction over actions brought to enforce preliminary orders, the STAA thus demonstrates that Congress knew how to provide expressly for such jurisdiction when it thought desirable.

8 . The procedures required under Brock are derived from application of the Mathews v. Eldridge balancing test in the context of a statute that did authorize judicial enforcement of preliminary reinstatement orders, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); see Brock, 481 U.S. at 261-68, 107 S.Ct. 1740. Brock does not control where there is no such enforcement, since the private interests at stake, see Mathews, 424 U.S. at 339-43, 96 S.Ct. 893, will presumably differ depending on whether the preliminary order of reinstatement is enforceable. Indeed, Judge Leval's contention that the order has essentially no legal effect in the absence of judicial enforcement, see Concurring Op. at 477, suggests that the private interest at stake in the absence of judicial enforcement is quite minimal.

9 . Two of the Second Circuit cases cited by Judge Leval, see Concurring Op. at 479 - 80 n. 1, involve the assertion of hypothetical jurisdiction to decide constitutional questions. See Guaylupo-Moya v. Gonzales, 423 F.3d 121, 132 (2d Cir.2005); Fama v. Comm’r of Corr. Servs., 235 F.3d 804, 817 (2d Cir.2000). In neither case, however, did the question of statutoiy jurisdiction bear upon the ultimate conclusion that the constitutional claim was ''plainly without merit.” Marquez-Almanzar v. INS, 418 F.3d 210, 216 (2d Cir.2005).