It is not often that you think of the terms “criminal defense” and “Chevron deference” in the same sentence. But this is starting to change given the ever-expanding number of quasi-civil and criminal statutes passed by Congress.
Indeed, much of the conduct that we would typically consider to be a violation of a regulation, subject to civil penalties in federal court or in an administrative tribunal, is criminalized in the same statute. And it is usually the government’s decision as to whether the case proceeds civilly or with handcuffs.
Take the Marine Mammal Protection Act (“MMPA”), for example. In the Act, Congress delegated authority to the National Oceanic and Atmospheric Administration (“NOAA”) to promulgate regulations implementing the MMPA. Any violation of a regulation is subject to fines and civil penalties, 16 U.S.C. § 1375(a), but it is also punishable as a crime. 16 U.S. § 1375(b). The MMPA regulations prohibit “feeding” marine mammals, see 50 C.F.R. §§ 216.3, 216.11(b), but only because the Fifth Circuit, relying on Chevron, deferred to the agency’s expansive interpretation of the MMPA (which does not actually mention feeding) to uphold the regulation. Strong v. United States, 5 F.3d 905, 906-07 (5th Cir. 1993) (vacating the lower court’s permanent injunction). In 2012, federal prosecutors indicted a marine biologist for violating this feeding regulation. United States v. Black, No. CR 12-0002 (N.D. Cal.). While the government could have resolved this civilly, as it had in every other case in the past, it opted for a criminal prosecution.
There are a myriad of other hybrid civil/criminal statutes. The Security Exchange Act, Fair Labor Standards Act, Lacy Act, and Sherman Antitrust Act, just to name a few, each allow for both civil and criminal penalties.
The danger of hybrid statutes arises when a prosecutor seeks to apply a regulation or an interpretation of a hybrid statute that was rendered in a civil proceeding to a criminal case. There are many reasons why this can be dangerous. In civil cases, courts may be more apt to promote the remedial purposes of a statute rather than construe it narrowly, as a court would in criminal cases. But the biggest danger arises when the statute contains an ambiguity.
Under existing civil precedent, where a statute is ambiguous, a court will defer to an agency’s interpretation of a statute it is tasked with administering, so long as that interpretation is “reasonable.” Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
But in criminal law, the rule of lenity requires the court to resolve any statutory ambiguity in favor of a criminal defendant. See Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004). This rule has been ingrained in our criminal law for decades. United States v. Wiltberger, 18 U.S. 76, 93 (1820) (“In criminal cases, a strict construction is always to be preferred; and if there be doubt, that is of itself conclusive.”).
This inconsistency means that the agency may have developed a body of law under Chevron that is based on a loose “reasonableness” standard, rather than a strict and narrow construction that applies in the criminal context. So when the prosecutor presents the court with an agency’s interpretation of a statute, or a regulation promulgated under a statute, or an administrative decision showing that the agency has already decided that similar conduct constituted a violation of the law, it is critical to look beyond the agency’s interpretation and refer directly back to the statute.
In two recent cases, the Supreme Court has made it unequivocally clear that the Government is entitled to no deference for its interpretation of a criminal statute. United States v. Apel, 134 S. Ct. 1144 (2014); Abramski v. United States, 134 S. Ct. 2259 (2014). Criminal statutes are for the courts, not the government, to construe. See Apel, 134 S. Ct. at 1146; Abramski, 134 S. Ct. at 2274.
While the rules of Chevron deference and lenity seem at odds, in reality they can be harmonized. The rule of lenity is a canon of statutory construction, which means that it must be used by the court to actually interpret the statute and is thus applied to resolve a statutory ambiguity. Thompson/Center Arms Co., 504 U.S. 505, 518 n.10 (plurality opinion). Chevron deference, on the other hand, is a legal principle that kicks in only after the court has applied all the canons of statutory construction and still finds that the statute remains ambiguous. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 843 n.9 (1984). In other words, lenity trumps Chevron, every time.
Moreover, the one-interpretation rule means that the criminal-law construction of the statute (with the rule of lenity) must prevail over the civil-law construction of it. See, e.g., WEC Carolina Energy Sols. LLC v. Miller, 687 F.3d 199, 203–04 (4th Cir. 2012) (“Where . . . our analysis involves a statute whose provisions have both civil and criminal application, our task merits special attention because our interpretation applies uniformly in both contexts. Thus, we follow ‘the canon of strict construction of criminal statutes, or rule of lenity.’” (citations omitted)); In re Woolsey, 696 F.3d 1266, 1277 (10th Cir. 2012) (for hybrid statutes, “the rule of lenity must apply equally to civil litigants to whom lenity would not ordinarily extend”); Bingham, Ltd. v. United States, 724 F.2d 921, 924–25 (11th Cir. 1984) (the rule of lenity applies “even though we construe the [statute] in a declaratory judgment action, a civil context”).
This is equally as true even when the agency’s interpretation goes back many years. Abramski, 134 S. Ct. at 2274 (“An agency’s historical position on a statute is “no more relevant than its current one—which is to say, not relevant at all.”).
Despite its longstanding roots in our jurisprudence, courts have not always applied the rule of lenity consistently. In many cases, the rule of lenity has not prevailed. See, e.g., Oppedisano v. Holder, 769 F.3d 147, 153 (2d Cir. 2014) (stating that the rule of lenity “does not trump Chevron’s requirement of deference to reasonable interpretations by administrative agencies of statutes for which they are responsible,” but not discussing Apel or Abramski) (emphasis added); Yi v. Fed. Bureau of Prisons, 412 F.3d 526, 535 (4th Cir. 2005) (“Rather than apply a presumption of lenity to resolve the ambiguity, Chevron requires that we defer to the agency's reasonable construction of the statute.”). And in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995), the Supreme Court deferred to an agency’s interpretation of a law that carried criminal penalties while only referencing the rule of lenity in a footnote.
However, case law that either pre-dates or is inconsistent with the rules in Apel and Abronski, including the Supreme Court’s passing footnote in Babbitt, is arguably unpersuasive when faced with the clear directives in these cases. See Apel, 134 S. Ct. at 1144; Abramski, 134 S. Ct. at 2259.
The rule of lenity may be about to have its day in court. On February 27, 2017, the Supreme Court heard argument in the case of Esquivel-Quintana v. Sessions, No. 16-54, where the Sixth Circuit afforded Chevron deference to the Board of Immigration Appeals’ interpretation of a hybrid civil/criminal immigration statute to hold that an immigrant was subject to deportation. In his dissent from the panel decision, Judge Sutton stated that the case was “a classic occasion for applying the rule of lenity.” Esquivel-Quintana v. Lynch, 810 F.3d 1019, 1028-29 (6th Cir. 2016) (Sutton, J., concurring in part and dissenting in part). Only time will tell whether the Supreme Court uses the case to bolster its recent lenity jurisprudence.
I will continue to update readers on the Esquivel-Quintana case and as the law develops. I hope to spark a broader discussion between attorneys who can use the rule of lenity in their practice. In the meantime, please feel free to comment below or to email me at firstname.lastname@example.org.
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Erica Marshall is Counsel at Cause of Action Institute.