Inside agency statutory interpretation.

• Author: Walker, Christopher J.
• Position: Survey Appendix, p. 1068-1080

INTRODUCTION

This study is the first to investigate empirically how federal agency rule drafters approach statutory interpretation. You are being asked to participate in this survey because you have been identified as an agency official who has experience in statutory interpretation and rulemaking.

Courts have developed a broad variety of judicial review doctrines in administrative law as well as tools of statutory interpretation--many of which are based on empirical assumptions about how Congress and agencies draft statutes and regulations, respectively. Yet little work has been done to understand whether these empirical assumptions are correct, much less the extent to which the drafters actually work against this interpretive backdrop. As courts, Congress, and scholars gain insight into how agencies understand and use interpretive rules and judicial review doctrines, these rules and doctrines should evolve to better reflect actual congressional and agency assumptions and lead to more predictable administrative law.

Your participation is voluntary, and you can withdraw at any time during the survey. The survey consists of 35 questions and should take between 15-25 minutes to complete. The survey asks what you, as an agency rule drafter, think about the use of semantic and substantive canons of interpretation and legislative history as well as the effect that the Supreme Court's administrative law doctrines may have on agency drafting. The survey results will be anonymous, and you should not include any agency-specific or otherwise sensitive information in the survey's optional open-ended comment boxes.

If you have any questions or comments about the survey, please do not hesitate to contact me (walker-research@osu.edu; 614-247-1898). For questions about your rights as a participant in this study or to discuss other study-related concerns with someone not part of the research team, you may contact Sandra Meadows in the Office of Responsible Research Practices at 1-800-678-6251.

PART I: BACKGROUND

Please answer the following eight questions about your background.

1. Our records show that you are currently working, or have worked within the last two years, in a general counsel office, legal department, or other rulemaking office in a federal agency AND that you have had experience in statutory interpretation and rulemaking in that employment. Is that correct?

   i. Yes

   ii. No

   If you are at the FDA, please type "FDA" here:

2. Are/were you a political or career employee?

   i. Political

   ii. Career

   iii. Both, but most recently political

   iv. Both, but most recently career

3. How long have you worked at a federal agency in a capacity that includes some rulemaking work?

   i. Five years or more

   ii. Fewer than five years

   iii. Other (explain)

4. For how many rules have you had a role in the drafting process?

   i. 0-2

   ii. 3-6

   iii. 7 or more

   iv. Don't know

5. What is your age? (mark one)

   i. 22-30

   ii. 31-45

   iii. Over 45

6. What year did you graduate from law school? If you are not an attorney, please indicate your terminal degree in the Additional Comments box.

   i. Drop-down menu

   ii. I am currently in law school

   iii. I did not attend law school (please indicate terminal degree)

7. Did you take a course in law school that focused on legislation, statutory interpretation, or statutory drafting in general?

   i. Yes

   ii. No

   iii. N/A--I did not attend law school

   iv. Other (explain)

8. Have you taken a course other than in law school that focused on legislation, statutory interpretation, or statutory drafting in general?

   i. Yes (state where and when)

   ii. No

   iii. Other (explain)

   PART II: THE SEMANTIC CANONS

   Please answer the following six questions regarding your understanding and use of various semantic canons of interpretation. Throughout the rest of the survey, there will be optional, open-ended comment boxes at the end of each question. Please include any additional comments that you feel appropriate, including insights into whether we are asking the right questions. Remember not to include any agency-specific or otherwise sensitive information in these comment boxes.

9. Are you familiar with any of the following canons of construction that concern how textual terms are to be construed? (mark all that apply)

   a. Ordinary meaning canon

   b. Noscitur a sociis

   c. Ejusdem generis

   d. The rule against superfluities or redundancy

   e. Expressio unius/inclusio unius

   f. In pari materia

   g. Whole act rule

   h. Whole code rule

   i. None of the above

10. Which have you considered in interpreting statutes and/or drafting rules? (mark all that apply)

    a. Ordinary meaning canon

    b. Noscitur a sociis

    c. Ejusdem generis

    d. The rule against superfluities or redundancy

    e. Expressio unius/inclusio unius

    f. In pari materia

    g. Whole act rule

    h. Whole code rule

    i. None of the above

11. Do you believe that courts rely on any of these rules in interpreting legislation and/or regulations? (mark all that apply)

    a. Ordinary meaning canon

    b. Noscitur a sociis

    c. Ejusdem generis

    d. The rule against superfluities or redundancy

    e. Expressio unius/inclusio unius

    f. In pari materia

    g. Whole act rule

    h. Whole code rule

    i. None of the above

12. Does it matter to your rule-drafting practices whether courts routinely rely on any of these rules?

    i. Yes

    ii. No

    iii. Other (explain)

13. The following statements concern statutory or regulatory "lists." By this, we mean provisions such as: "No person shall commit animal cruelty, where 'animal cruelty' is defined as 'conduct in which a living animal is intentionally maimed, mutilated, kicked, punched, or harmed.'"

    Please rate the accuracy of the following assertions by indicating how often you would expect the statement to be true:

    a. The terms in such a list relate to one another.

    b. Terms not on the list are intended to be excluded.

    c. Each word in the list has an independent meaning and is not intended to overlap with other terms on the list.

    d. Where a list includes specific classes of things and...