OCTOBER TERM, 1995
Syllabus
BANK ONE CHICAGO, N. A.
v. MIDWEST BANK & TRUST
CO.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT
No. 94-1175. Argued November 28, 1995-Decided January 17,
1996
Petitioner Bank One sued respondent Midwest Bank, alleging that,
in dishonoring a check Bank One had submitted for collection,
Midwest failed to meet its obligations under a regulation
prescribed by the Board of Governors of the Federal Reserve System
(Board) pursuant to the Expedited Funds Availability Act (Act), 12
U. S. C. §§4001-4010. The District Court entered summary judgment
for Bank One, but the Seventh Circuit vacated that judgment and
ordered the action dismissed for lack of subject-matter
jurisdiction. The appellate court focused on three of § 4010's
civil liability provisions: § 401O(a) renders "any depository
institution which fails to comply with any requirement imposed
under this [Act or its implementing regulations] with respect to
any person other than another depository institution ... liable [in
damages] to such person"; § 401O(f) empowers the Board to "impose
on or allocate among [banks] the risks of loss and liability in
connection with any aspect of the [check] payment system"; §
4010(d) provides for concurrent federalcourt and state-court
jurisdiction over "[a]ny action under this section." These
provisions, the court concluded, demonstrate that the Act
authorizes original federal-court jurisdiction only when a "person
other than [a] depository institution" sues a "depository
institution," § 4010(a), i.
e., principally, when a
depositor sues a bank. Interbank disputes, the court said, are to
be "handled administratively" before the Board or perhaps in state
court.
Held: The Act provides for federal-court jurisdiction not
only in suits between customers and banks, but also in cases
initiated by one bank against another bank. Section 4010's
language, reinforced by its title and drafting history, impel
reading both subsection (a), which makes banks liable to "any
person other than another depository institution," and subsection
(f), which governs banks' liability
inter se, as authorizing
claims for relief enforceable in federal court as prescribed in
subsection (d). Section 4010 is entitled "Civil liability"; its
purpose is to afford private parties a claim for relief based on
violations of the Act and its implementing regulations. Both
subsections (a) and (f) impose civilliability for such violations.
Though the two prescriptions are not paral-
265
leI-most prominently, subsection (f) vests the Board with
authority to establish the governing liability standards-they serve
the same key purpose: Both permit recovery of damages caused by a
regulated party's failure to comply with the Act. Section 4010's
drafting history suggests that interbank liability rules were to be
developed administratively because Congress recognized that
interbank disputes arising out of the check payment system may be
more complex than those involving banks and depositors, not because
Congress intended to create remedies that would be adjudicated in
different forums. It is implausible that Congress directed the
Board to handle such disputes administratively, for § 4010 does not
explicitly confer adjudicatory authority on the Board, nor set
forth the relevant procedures for resolution of private disputes.
See,
e. g., American Airlines, Inc. v.
Wolens,
513 U. S. 219;
Goit Independence Joint Venture v.
FSLIG, 489 U. S. 561, 574. The
interpretation of § 4010 offered by Bank One and the United States
is sensible because it allows all check-related claims arising out
of the same transaction to be brought in a single federal or state
court. The Seventh Circuit's reading, in contrast, would yield an
incoherent jurisdictional scheme, whereby bank-depositor claims
would be adjudicated in one such court, interbank claims under the
Act would originate before the Board, and interbank claims under
state law would presumably have to be raised in a separate
state-court proceeding. Pp. 270-276.
30 F.3d
64, reversed and remanded.
GINSBURG, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and STEVENS, O'CONNOR, KENNEDY, SOUTER, THOMAS,
and BREYER, JJ., joined, and in which SCALIA, J., joined in part.
STEVENS, J., filed a concurring opinion, in which BREYER, J.,
joined,
post, p. 276. SCALIA, J., filed an opinion
concurring in part and concurring in the judgment,
post, p.
279.
Robert A. Long, Jr., argued the cause for petitioner.
With him on the briefs were
Mark A. Weiss and
Jeffrey
S.
Blumenthal.
Jeffrey P. Minear argued the cause for the United States as
amicus curiae urging reversal. With him on the brief were Solicitor
General Days, Assistant Attorney General Hunger, Deputy Solicitor
General Bender, Mark B. Stern, and Douglas B. Jordan.
266
Robert G.
Epsteen argued the cause for respondent.
With him on the brief were
Alan H. Zenoff and
A.
J. Zenoff *
JUSTICE GINSBURG delivered the opinion of the Court. This case
concerns the Expedited Funds Availability Act, 12 U. S. C.
§§4001-4010, a 1987 law designed to accelerate the availability of
funds to bank depositors and to improve the Nation's check payment
system. We confront a jurisdictional question regarding the Act's
civil liability provisions, in particular §§ 4010(a), (d), and (f):
Is federal-court subjectmatter jurisdiction under those provisions
confined to suits initiated by bank customers against banks, as the
Court of Appeals held, or do federal courts have jurisdiction, as
well, over suits brought by one bank against another depository
institution? We hold that the Act provides for federal-court
jurisdiction not only in suits between customers and banks, but
also in cases initiated by one bank against another bank.
I
Historically, the Nation's check payment system has been
controlled primarily by state law, particularly, in recent decades,
by articles 3 and 4 of the Uniform Commercial Code (UCC). Although
federal regulations have long supplemented state law in this area,
see most notably Regulation J, 12 CFR pt. 210 (1995), the UCC has
supplied the basic legal framework for bank deposits and check
collections. But despite UCC controls, the check-clearing process
too often lagged, taking days or even weeks to complete. To protect
themselves against the risk that a deposited check would be
returned unpaid, banks typically placed lengthy "holds" on
deposited funds. Bank customers, encountering long holds,
complained that delayed access to deposited funds
*Briefs of
amici curiae urging reversal were filed for
the Electronic Check Clearing House Organization by
Robert
G.
Ba II en, Gilbert T. Schwartz, and
Dina J.
Moskowitz; and for the New York Clearing House Association
by
Philip L. Graham, Jr., and
Norman R. Nelson.
267
impeded the expeditious use of their checking accounts. See S.
Rep. No. 100-19, pp. 25-26 (1987).
In 1987, Congress responded by passing the Expedited Funds
Availability Act (EFA Act or Act), 101 Stat. 635, as amended, 12 U.
S. C. §§ 4001-4010. The Act requires banks 1 to make deposited
funds available for withdrawal within specified time periods,
subject to stated exceptions. See §§ 4002, 4003. To reduce banks'
risk of nonpayment, the Act grants the Board of Governors of the
Federal Reserve System (Federal Reserve Board or Board) broad
authority to prescribe regulations expediting the collection and
return of checks. § 4008. The Board and other banking agencies are
authorized to enforce the Act's provisions administratively, by
issuing cease-and-desist orders and imposing other civil sanctions.
See § 4009(a) (incorporating administrative enforcement provisions
of 12 U. S. C. § 1818).
The Act's final section contains civil liability provisions,
which are the focus of this case. See § 4010. Subsection 4010(a)
addresses a bank's liability to persons other than another
depository institution. It provides, in pertinent part:
"Except as otherwise provided in this section, any depository
institution which fails to comply with any requirement imposed
under this chapter or any regulation prescribed under this chapter
with respect to any person other than another depository
institution is liable to such person in an amount equal to the sum
of [a specified measure of damages]."
Subsection 4010(f) governs a bank's liability to another bank
for violation of the Act's provisions. It states:
"The Board is authorized to impose on or allocate among
depository institutions the risks of loss and liability in
connection with any aspect of the [check] payment
IThe EFA Act applies to "depository institution[s]," as that
term is defined in 12 U. S. C. § 461(b)(1)(A). See 12 U. S. C. §
4001(12). For simplicity, we often use the term "bank" instead.
268
system .... Liability under this subsection shall not exceed the
amount of the check giving rise to the loss or liability, and,
where there is bad faith, other damages, if any, suffered as a
proximate consequence of any act or omission giving rise to the
loss or liability."
Subsection 4010(d) provides for concurrent federal-court and
state-court jurisdiction over civil liability suits:
"Any action under this section may be brought in any United
States district court, or in any other court of competent
jurisdiction, within one year after the date of the occurrence of
the violation involved."
The Federal Reserve Board has implemented the EFA Act through
Regulation CC, 12 CFR pt. 229 (1995). Subpart C of Regulation CC
contains rules to expedite the collection and return of checks. It
requires banks, among other things, to return checks "in an
expeditious manner," § 229.30(a); provide prompt notice of
nonpayment of certain checks, § 229.33(a); and include in the
notice the reason for nonpayment, § 229.33(b)(8). Section 229.38
states standards governing interbank liability. It instructs banks
to "exercise ordinary care and act in good faith in complying with
the requirements of [Subpart C]," and further prescribes (in
relevant part): "A bank that fails to exercise ordinary care or act
in good faith ... may be liable to" other depository institutions.
§ 229.38(a). Section 229.38 repeats the jurisdictional provision
Congress placed in 12 U. S. C. § 4010(d), i.
e., the
regulation provides for concurrent federal-court and state-court
jurisdiction over "[a]ny action under this subpart." 12 CFR §
229.38(g) (1995).
II
This controversy stems from an interbank dispute regarding a
dishonored check. Petitioner Bank One Chicago sued respondent
Midwest Bank & Trust Co. in Federal District Court, alleging
that Midwest had failed to comply with its
269
obligations under Regulation CC. The facts underlying the suit
are uncontested. A customer of Bank One deposited a check for
$64,294.27 drawn on an account at Midwest. Bank One forwarded the
check through the Federal Reserve System for collection, but
Midwest returned it unpaid because Bank One's endorsement stamp was
illegible. Bank One properly endorsed the check, resubmitted it for
collection, and made the funds available to the Bank One customer.
Midwest again returned the check unpaid, this time stating that the
payor's account lacked sufficient funds to cover the check. By
then, however, Bank One's customer had withdrawn most of the funds
from its account. Bank One sought to recover the amount it paid out
to its customer against funds that remain uncollected.
On cross-motions for summary judgment, the District Court ruled
for Bank One. That court centrally determined: "Midwest did not act
with ordinary care [when it] return[ed] the check for guarantee of
endorsement without first checking the sufficiency of the funds in
support of the check." App. to Pet. for Cert. 12. To satisfy the
payor bank's obligation under 12 CFR § 229.38(a) (1995), the court
explained, Midwest should have notified Bank One of the
insufficient funds problem the first time Midwest returned the
check. By failing to do so, the court concluded, Midwest had caused
Bank One to lose $43,912.06. The court accordingly entered judgment
for Bank One in that amount. App. to Pet. for Cert. 15. Midwest
appealed.
The Court of Appeals for the Seventh Circuit did not reach the
merits of the appeal. Instead, the appellate court raised at oral
argument, on its own motion, a threshold question of subject-matter
jurisdiction. After affording the parties an opportunity to file
memoranda, the Court of Appeals vacated the judgment for Bank One
and ordered the District Court to dismiss the action for lack of
jurisdiction.
First Illinois Bank &
Trust v.
Midwest Bank &
Trust Co., 30
F.3d 64, 65 (1994).
270
Examining the civil liability provisions of 12 U. S. C. § 4010,
the Court of Appeals concluded that the EFA Act provides for
federal-court jurisdiction only when a "person other than [a]
depository institution" sues a "depository institution," see 12 U.
S. C. § 4010(a), i.
e., principally, when a depositor sues a
bank. 30 F. 3d, at 65. "Disputes such as [Bank One's complaint
against Midwest], between members of the Federal Reserve System,"
the Seventh Circuit stated, "are to be handled administratively
before the Board of Governors of the Federal Reserve System ... (or
perhaps in state court)."
Ibid. The court added, in response
to a submission by the Federal Reserve Board: "Although the Board
of Governors has informed us that no mechanism is currently
available for administrative resolution of such [interbank]
disputes, the Board's differing interpretation of this statute
cannot confer jurisdiction upon the Court."
Ibid.
We granted certiorari. 515 U. S. 1157 (1995). Satisfied that the
District Court had adjudicatory authority in this case, we now
reverse the judgment of the Court of Appeals.
III
The Court of Appeals and the parties advance diverse readings of
12 U. S. C. § 4010. According to the Seventh Circuit, § 4010
authorizes original federal-court jurisdiction only in actions
between a bank and a person other than a bank. Subsection 4010(a)
alone, in the Court of Appeals' view, provides for rights
immediately enforceable in federal court, and that subsection
excludes interbank suits, for it applies only to "disputes between
'any depository institution' and 'any person other than another
depository institution.'" 30 F. 3d, at 65 (quoting § 4010(a)).
Although § 4010(f) provides for interbank liability, the Court of
Appeals read that subsection to authorize only administrative
adjudication. In the Seventh Circuit's words:
"The purpose of the [EF A] Act is to require banks to make funds
available to depositors quickly. Thus the
271
depositors have rights, enforceable in court, while the banks
have obligations, which the Federal Reserve Board may establish by
regulation and enforce in administrative proceedings."
Ibid.
The Court of Appeals did not say whether its reading of the
statute encompassed an ultimate role for federal courts, as
judicial reviewers of the Board's administrative adjudications.
Midwest agrees with the Seventh Circuit that § 4010(a) alone
describes court-enforceable EFA Act rights-rights that depositors
can assert against banks. But unlike the Court of Appeals, Midwest
is uncertain whether § 4010(f) authorizes administrative
adjudication by the Federal Reserve Board. See Tr. of Oral Arg.
33-34. Remaining neutral on the Board's competence as a forum for
resolving controversies between private parties, Midwest urges that
the issue before this Court "is not whether the Board may
adjudicate the interbank dispute between petitioner and
respondent," but whether "the EF A Act confers on the federal
district court jurisdiction to decide this dispute." Brief for
Respondent 23. In Midwest's view, Congress intended interbank
disputes to be resolved primarily in state rather than federal
courts.
Id., at 5-6.2
Both Bank One and the United States, as
amicus curiae,
agree with Midwest that state courts have jurisdiction over
interbank check payment disputes. But Bank One and the United
States maintain that §4010(f), by providing for interbank
"liability" up to the amount of the check as well as "other
damages" in certain cases, authorizes interbank actions for
violations of liability regulations prescribed by the
2 Midwest observes that DCC §4-103, 2B U. L. A. §4-103 (1991),
treats Federal Reserve Board regulations as "agreements" between
participants in the check payment system; damages for violation of
the terms of such agreements, Midwest further asserts, would be
recoverable as a matter of state law. See,
e. g., United Postal
Savings Assn. v.
Royal Bank MidCounty, 784 S. W. 2d 906
(Mo. App. 1990).
272
Federal Reserve Board. And they regard § 4010(d), which speaks
of "[a]ny action under [§ 4010]," as instructing that suits under §
4010(f), as well as those under § 4010(a), "may be brought in any
United States district court."
We hold that the District Court, in the instant case, correctly
comprehended its adjudicatory authority, and that the Court of
Appeals erred when it ordered dismissal of the action for lack of
jurisdiction. The language of § 4010, reinforced by the title of
the provision and its drafting history, impel reading both
subsections (a) and (f) as authorizing claims for relief
enforceable in federal court as prescribed in subsection (d).
IV
Section 4010 is entitled "Civil liability"; its purpose is to
afford private parties a claim for relief based on violations of
the statute and its implementing regulations. Subsection (a)
affords a claim for relief by making banks liable to "any person
other than another depository institution." It refers to both
individual and class actions, and specifies the measure of damages
recoverable in such actions. All agree that suits described in
subsection (a) may be brought in federal court under § 4010(d).
Subsection (f) governs the area of liability not covered by
subsection (a): banks' liability
inter se. It authorizes the
Federal Reserve Board to "impose on or allocate among depository
institutions the risks of loss and liability in connection with any
aspect of the [check] payment system," and states that "[l]iability
under this subsection" shall be limited to the amount of the check,
except in cases involving bad faith. In our view, subsection (f),
like subsection (a), provides a statutory basis for claims for
relief cognizable in federal court under § 4010(d). Both
subsections impose civilliability for violation of the EF A Act and
its implementing regulations. Though the two prescriptions are not
parallel-most prominently, subsection (f) vests the Board with
authority to establish the governing liability standards-
273
they serve the same key purpose: Both permit recovery of damages
caused by a regulated party's failure to comply with the Act.
The drafting history of § 4010 casts some light on the discrete
composition and separate placement of subsections (a) and (f).
Under the versions of the statute originally passed by each House
of Congress, subsection (a) encompassed actions between banks and
persons other than banks, as well as interbank actions. The
Conference Committee narrowed subsection (a) by excluding interbank
actions, but simultaneously inserted, still under the section
heading "Civilliability," a new subsection (f). Compare H. R. Rep.
No. 100-52, p. 10 (1987), and S. 790, 100th Cong., 1st Sess., §
609(a) (1987), with H. R. Conf. Rep. No. 100-261, pp. 105-106
(1987).
These changes reflect recognition that interbank disputes
arising out of the check payment system may be more complex than
those involving banks and depositors; such disputes, therefore, may
warrant regulatory standards, set by an expert agency, to fill
statutory interstices. Thus, in subsection (f), Congress delegated
to the Federal Reserve Board authority to establish rules
allocating among depository institutions "the risks of loss and
liability" relating to the payment and collection of checks. 12 U.
S. C. § 4010(f). Having conferred this authority on the Board,
Congress sensibly consolidated in subsection (f) aspects of § 4010
that relate to interbank disputes-liability limits as well as
rulemaking authority.
Congress no doubt intended rules regarding interbank losses and
liability to be developed administratively. But nothing in
§4010(f)'s text suggests that Congress meant the Federal Reserve
Board to function as both regulator and adjudicator in interbank
controversies. Rather, subsections (f) and (d) fit a familiar
pattern: agency regulates, court adjudicates. See,
e.
g., Securities Act of 1933, 15 U. S. C. § 77j(c) (mandating
compliance with disclosure requirements established by Securities
and Exchange Commission); § 77k (creat-
274
ing right of action in "any court of competent jurisdiction" for
violation of those requirements). As the United States persuasively
contends: "Congress left it to the Board to determine the liability
standards for losses in the inter-bank payment system because of
the greater complexity of that subject, and not because Congress
intended to create remedies that would be adjudicated in different
fora." Brief for United States as
Amicus Curiae 13.
We find implausible the Court of Appeals' interpretation of §
4010, under which interbank disputes would be "handled
administratively" before the Federal Reserve Board. See 30 F. 3d,
at 65. Our cases have not been quick to infer agency authority to
adjudicate private claims. In
Coit Independence Joint
Venture v.
FSLIC, 489 U. S. 561 (1989), for
example, we held that the Federal Savings and Loan Insurance
Corporation (FSLIC) lacked statutory authority to adjudicate
creditors' claims against insolvent savings and loan associations.
Id., at 572. We observed in
Coit, after examining the
relevant statutory provisions, that "when Congress meant to confer
adjudicatory authority on FSLIC it did so explicitly and set forth
the relevant procedures in considerable detail."
Id., at
574.
Similarly, in
American Airlines, Inc. v.
Wolens,
513 U. S. 219
(1995), we rejected American Airlines' argument that Congress
intended the Department of Transportation (DOT) to serve as the
exclusive adjudicator of air carrier contract disputes.
Id.,
at 230-232. We noted that the DOT had "neither the authority nor
the apparatus required to superintend a contract dispute resolution
regime,"
id., at 232, and accordingly declined to "foist on
the DOT work Congress has neither instructed nor funded the
Department to do."
Id., at 234.
As in
Coit and
Wolens, we find no secure signal
here that Congress intended to assign to the Federal Reserve Board
responsibility for the adjudication of private claims. The
275
EFA Act's civil liability section, 12 U. S. C. § 4010, does not
explicitly confer adjudicatory authority on the Board, nor "set
forth the relevant procedures" for resolution of private disputes.
See
Coit, 489 U. S., at 574.3 Section 4010, we stress,
contrasts conspicuously with statutes in which Congress
has
given the Board adjudicatory authority. See,
e. g.,
Bank Holding Company Act of 1956, 12 U. S. C. § 1843(c)(8)
(authorizing Board to determine whether bank holding company may
acquire shares in nonbanking entity); § 1848 (providing for
judicial review of such determinations); cf. Commodity Exchange
Act, 7 U. S. C. § 18 (specifying detailed procedures governing
adjudication of private disputes by the Commodity Futures Trading
Commission).
Finally, we note that the interpretation of § 4010 offered by
Bank One and the United States is a sensible one. All check-related
claims arising out of the same transaction may be brought in a
single forum-either in federal court (which would have supplemental
jurisdiction over state-law claims, see 28 U. S. C. § 1367), or in
state court. The reading of the statute proposed by the Seventh
Circuit, in contrast, would yield an incoherent jurisdictional
scheme. Bank-depositor claims would be adjudicated in one forum
(state or federal court), while interbank claims under the EFA Act
would originate in another (before the Federal Reserve Board). And
interbank claims under state law would presumably have to be raised
in a separate state-court proceeding. Even if the text of § 4010
could plausibly be read to create
3 The Court of Appeals cited 12 U. S. C. § 4009(c)(1) as a
potential source of the Board's authority to adjudicate private
disputes.
First Illinois Bank &
Trust v.
Midwest Bank &
Trust Co., 30
F.3d 64,65
(CA7 1994). But as the United States points
out, that section merely authorizes the Board to use traditional
administrative enforcement tools in securing compliance with the
EFA Act. Brief for United States as
Amicus Curiae 19.
Section 4009(c) "does not create any mechanism for the adjudication
of inter-bank civil liability claims."
Id., at 19-20.
276
STEVENS, J., concurring
this decidedly inefficient jurisdictional scheme, we would
hesitate to attribute such a design to Congress.4
***
For the reasons stated, the judgment of the Court of Appeals for
the Seventh Circuit is reversed, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
JUSTICE STEVENS, concurring.
Given the fact that the Expedited Funds Availability Act was a
measure that easily passed both Houses of Congress,l JUSTICE SCALIA
is quite right that it is unlikely that more than a handful of
legislators were aware of the Act's drafting history. He is quite
wrong, however, to conclude from that observation that the drafting
history is not useful to conscientious and disinterested judges
trying to understand the statute's meaning.
Legislators, like other busy people, often depend on the
judgment of trusted colleagues when discharging their official
responsibilities. If a statute such as the Expedited Funds
Availability Act has bipartisan support and has been carefully
considered by committees familiar with the subject matter,
Representatives and Senators may appropriately rely on the views of
the committee members in casting their votes. In such
circumstances, since most Members are content to endorse the views
of the responsible committees, the
4 Bank One and
amicus New York Clearing House Association
contend that 28 U. S. C. § 1331 provides an independent basis for
federal-court jurisdiction here. Satisfied that Bank One properly
relied on 12 U. S. C. § 4010, we need not and do not pass on this
contention.
1 The House passed the Act by a vote of 382 to 12. 133 Congo
Rec. 22110 (1987). The Senate approved the measure 96 to 2.
Id., at 22181.
277
intent of those involved in the drafting process is properly
regarded as the intent of the entire Congress.
In this case, as the Court and JUSTICE SCALIA agree,
ante, at 273-274,
post, at 282, the statutory text of
§4010 supports petitioner's construction of the Act. However, the
placement of the authorization for interbank litigation in
subsection (f) rather than subsection (a) lends some support to the
Court of Appeals' interpretation. When Congress creates a cause of
action, the provisions describing the new substantive rights and
liabilities typically precede the provisions describing enforcement
procedures; subsection (f) does not conform to this pattern. The
drafting history, however, provides a completely satisfactory
explanation for this apparent anomaly in the text.
JUSTICE SCALIA nevertheless views the Court's reference to this
history as unwise. As he correctly notes, the simultaneous removal
of the provision for interbank liability from subsection (a) and
the addition of a new subsection (f) support another inference
favoring the Court of Appeals' construction of the statute: that
the drafters intended to relegate the resolution of interbank
disputes to a different tribunal. JUSTICE SCALIA is mistaken,
however, in believing that this inference provides the "most
plausible explanation" for the change,
ibid. In my judgment
the Court has correctly concluded that the most logical explanation
for the change is a decision to consolidate the aspects of § 4010
that relate to interbank disputes-liability limits and rulemaking
authority-in the same subsection.
Ante, at 273. Thus, the
net result of the inquiry into drafting history is to find the
answer to an otherwise puzzling aspect of the statutory text.
I must also take exception to JUSTICE SCALIA'S psychoanalysis of
judges who examine legislative history when construing statutes. He
confidently asserts that we use such history as a makeweight after
reaching a conclusion on the
278
STEVENS, J., concurring
basis of other factors. I have been performing this type of work
for more than 25 years and have never proceeded in the manner
JUSTICE SCALIA suggests. It is quite true that I have often formed
a tentative opinion about the meaning of a statute and thereafter
examined the statute's drafting history to see whether the history
supported my provisional conclusion or provided a basis for
revising it. In my judgment, a reference to history in the Court's
opinion in such a case cannot properly be described as a
"makeweight." That the history
could have altered my opinion
is evidenced by the fact that there are significant cases, such as
Green v.
Bock Laundry Machine Co., 490 U. S. 504 (1989), in
which the study of history
did alter my original analysis.
In any event, I see no reason why conscientious judges should not
feel free to examine all public records that may shed light on the
meaning of a statute.
Finally, I would like to suggest that JUSTICE SCALIA may be
guilty of the transgression that he ascribes to the Court. He has
confidently asserted that the legislative history in this case and
in
Wisconsin Public Intervenor v.
Mortier, 501 U. S.
597 (1991), supports a result opposite to that reached by the
Court. While I do not wish to reargue the
Mortier case, I
will say that I remain convinced that a disinterested study of the
entire legislative history supports the conclusion reached by the
eight-Member majority of the Court. Even if his analysis in both
cases is plausible, it is possible that JUSTICE SCALIA'S review of
the history in
Mortier and in this case may have been
influenced by his zealous opposition to any reliance on legislative
history in any case. In this case, as in
Mortier, his
opinion is a fine example of the work product of a brilliant
advocate.2 It is the Court's opinion,
2Justice Jackson, whose opinion in
United States v.
Public Util.
Comm'n of Cal., 345 U. S. 295 (1953),
JUSTICE SCALIA cites, was also a brilliant advocate. Like JUSTICE
SCALIA, he recognized the danger of indiscriminate use
oflegislative history, but unlike JUSTICE SCALIA he also recognized
that it can be helpful in appropriate cases. See
Schwegmann
Brothers v.
Calvert Distillers Corp., 341 U. S. 384, 395-396
(1951).
279
however, that best sets forth the reasons for reversing the
judgment of the Court of Appeals.
JUSTICE BREYER has authorized me to say that he agrees with the
foregoing views.
JUSTICE SCALIA, concurring in part and concurring in the
judgment.
I agree with the Court's opinion, except that portion of it
which enters into a discussion of "[t]he drafting history of §
4010."
Ante, at 273. In my view a law means what its text
most appropriately conveys, whatever the Congress that enacted it
might have "intended." The law
is what the law
says,
and we should content ourselves with reading it rather than
psychoanalyzing those who enacted it. See
United States v.
Public Util. Comm'n of Cal., 345 U. S. 295, 319 (1953)
(Jackson, J., concurring). Moreover, even if subjective intent
rather than textually expressed intent were the touchstone, it is a
fiction of Jack-and-the-Beanstalk proportions to assume that more
than a handful of those Senators and Members of the House who voted
for the final version of the Expedited Funds Availability Act, and
the President who signed it, were, when they took those actions,
aware of the drafting evolution that the Court describes; and if
they were, that their actions in voting for or signing the final
bill show that they had the same "intent" which that evolution
suggests was in the minds of the drafters.
JUSTICE STEVENS acknowledges that this is so, but asserts that
the intent of a few committee members is nonetheless dispositive
because legislators are "busy people," and "most Members [of
Congress] are content to endorse the views of the responsible
committees."
Ante, at 276. I do not know the factual basis
for that assurance. Many congressional committees tend not to be
representative of the full House, but are disproportionately
populated by Members whose constituents have a particular stake in
the subject matteragriculture, merchant marine and fisheries,
science and technology, etc. I think it quite unlikely that the
House of Rep-
280
Opinion of SCALIA, J.
resentatives would be "content to endorse the views" that its
Agriculture Committee would come up with if that committee knew (as
it knows in drafting committee reports) that those views need not
be moderated to survive a floor vote. And even
more unlikely
that the
Senate would be "content to endorse the views" of
the House Agriculture Committee. But assuming JUSTICE STEVENS is
right about this desire to leave details to the committees, the
very first provision of the Constitution forbids it. Article I, §
1, provides that "[a]ll legislative Powers herein granted shall be
vested in a Congress of the United States, which shall consist of a
Senate and a House of Representatives." It has always been assumed
that these powers are nondelegable-or, as John Locke put it, that
legislative power consists of the power "to make laws, ... not to
make legislators." J. Locke, Second Treatise of Government 87 (R.
Cox ed. 1982). No one would think that the House of Representatives
could operate in such fashion that only the broad outlines of bills
would be adopted by vote of the full House, leaving minor details
to be written, adopted, and voted upon only by the cognizant
committees. Thus, if legislation consists of forming an "intent"
rather than adopting a text (a proposition with which I do not
agree), Congress cannot leave the formation of that intent to a
small band of its number, but must, as the Constitution says, form
an intent of the
Congress. There is no escaping the point:
Legislative history that does not represent the intent of the whole
Congress is nonprobative; and legislative history that does
represent the intent of the whole Congress is fanciful.
Our opinions using legislative history are often curiously
casual, sometimes even careless, in their analysis of what "intent"
the legislative history shows. See
Wisconsin Public
Intervenor v.
Mortier, 501 U. S. 597, 617-620
(1991) (SCALIA, J., concurring). Perhaps that is because
legislative history is in any event a makeweight; the Court really
makes up its mind on the basis of other factors. Or perhaps it
is
281
simply hard to maintain a rigorously analytical attitude, when
the point of departure for the inquiry is the fairyland in which
legislative history reflects what was in "the Congress's mind."
In any case, it seems to me that if legislative history is
capable of injecting into a statute an "intent" that its text alone
does not express, the drafting history alluded to in today's
opinion should have sufficed to win this case for respondent. It
shows that interbank liability was not merely
omitted from
subsection (a), entitled "Civil liability." It was
removed
from that subsection,
simultaneously with the addition of
subsection (f), 12 U. S. C. §4010(f), which gave the Federal
Reserve Board power to "impose on or allocate among depository
institutions the risks of loss and liability in connection with any
aspect of the payment system" (language that is at least as
compatible with adjudication as with rulemaking). Now if the only
function of this new subsection (f) had been to give the Board
rulemaking power, there would have been no logical reason to
eliminate interbank disputes from the "Civil liability" subsection,
whose basic prescription (banks are civilly liable for violations
of the statute or of rules issued under the statute 1) applies no
less in the interbank than in the bank-customer context. Nor can
the removal of interbank disputes from subsection (a) be explained
on the ground that Congress had decided to apply different damages
limits to those disputes. The former subsection (a), in both House
and Senate versions, already provided varying damages limits for
individual suits and class actions, see S. 790, 100th Cong., 1st
Sess., § 609(a) (1987); H. R. Rep. No. 100-52, pp. 10-11 (1987),
and it would have been logical to set forth the newly desired
interbank variation there as well, leaving to the new subsection
(f) only
1 The Senate version of subsection (a) did not refer to
violations of rules, see S. 790, 100th Cong., 1st Sess., § 609(a)
(1987), but it was the House version of subsection (a), see H. R.
Rep. No. 100-52, p. 10 (1987), which did specifically mention
rules, that was retained.
282
Opinion of SCALIA, J.
the conferral of rulemaking authority. Or, if it were thought
essential to "consolidate" all the details of interbank disputes in
subsection (f), it would still not have been necessary to
specifically exclude interbank disputes from the general
"civil liability" pronouncement of subsection (a). The prologue of
that subsection, "[e]xcept as otherwise provided in this section,"
would have made it clear that interbank civil liability was limited
as set forth in subsection (f). The most plausible explanation for
specifically excluding interbank disputes from the "Civil
liability" subsection when subsection (f) was added-and for
avoiding any reference to "civilliability" in subsection (f)
itself-is an intent to commit those disputes to a totally different
regime, i.
e., to Board adjudication rather than the normal
civil-liability regime of the law courts.2
Today's opinion does not consider this argument, but nonetheless
refutes it (in my view) conclusively. After recounting the drafting
history, the Court states that
"nothing in §J,,010(j)'s
text suggests that Congress meant the Federal Reserve Board to
function as both regulator and adjudicator
2 I have explained why the "consolidation" explanation developed
by JUSTICE STEVENS,
ante, at 277, does not ring true. Even
if it did, however, it would not be accurate to say that the
legislative history thus provides "the answer to an otherwise
puzzling aspect of the statutory text,"
ibid. What JUSTICE
STEVENS calls "the answer" (viz., the wish to consolidate all the
interbank provisions in one section) is no more evident from the
legislative history than it is from the face of the statute itself.
Nothing in the legislative history says "we will consolidate
interbank matters in a new subsection (f)"; JUSTICE STEVENS simply
surmises, from the fact that the final text contains such
consolidation, that consolidation was the reason for excluding
interbank disputes from subsection (a). What investigation of
legislative history has produced, in other words, is not an answer
(that, if there is one, is in the
text), but rather
the puzzlement to which an answer is necessary: Why were interbank
disputes eliminated from subsection (a) when subsection (f) was
adopted? Being innocent of legislative history, I would not have
known of that curious excision if the Court's opinion had not told
me. Thus, legislative history has produced what it usually
produces: more questions rather than more answers.
283
in interbank controversies."
Ante, at 273 (emphasis
added). Quite so. The text's the thing. We should therefore ignore
drafting history without discussing it, instead of after discussing
it.
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