Bechtel v. Competitive Technologies, Inc.

Page 469

448 F.3d 469

John Scott BECHTEL,^* Plaintiff-Appellee United States Department of Labor, Intervenor-Plaintiff-Appellee, v. COMPETITIVE TECHNOLOGIES, INC., Defendant-Appellant.

Docket No. 05-2404-CV.

United States Court of Appeals, Second Circuit.

Argued: December 21, 2005.

Decided: May 1, 2006.

David B. Zabel, Cohen & Wolf, P.C., Bridgeport, CT (Mary E. Pivec, Sheppard Mullin Richter & Hampton, LLP, Washington, DC, on the brief), for Defendant-Appellant.

Megan E. Guenther, Attorney (Howard M. Radzely, Solicitor of Labor, Steven J. Mandel, Associate Solicitor, Ellen R. Edmond, Senior Attorney, on the brief), U.S. Department of Labor, Washington, DC, for Intervenor-Plaintiff-Appellee.

Robert L. Bauman (Taylor Spalding Flanery, on the brief), Gambs Mucker & Bauman, Lafayette, IN, for Plaintiff-Appellee.

Before: JACOBS, LEVAL, STRAUB, Circuit Judges.

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, J.) 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 Sarbanes-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)(1)(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 Ir., 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 subparagraph (b)(2)(A) incorporates the types of relief specified in subparagraph (b)(3)(B); it nowhere suggests that the two subparagraphs 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 subparagraph (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...