In Kasten v. Saint-Gobain, Justice Breyer, writing for a 6 member majority, sparred with Justice Scalia, who dissented with Justice Thomas about the phrase “filed any complaint,” and whether it includes oral, as well as written complaints (Justice Kagan recused).
Here is Scalia’s thought process. First, he found the word complaint to have a specialized meaning:
But at the time the FLSA was passed (and still today) the word when used in a legal context has borne a specialized meaning: “[a] formal alle-gation or charge against a party, made or presented to the appropriate court or officer.” . . . First, every other use of theword “complaint” in the FLSA refers to an official filingwith a governmental body. . . . Second, the word “complaint” appears as part of thephrase “filed any complaint” and thus draws meaning from the verb with which it is connected. The choice of the word “filed” rather than a broader alternative like “made,” if it does not connote (as the Seventh Circuit believed, and as I need not consider) something in writing, at least suggests a degree of formality consistent with legal actionand inconsistent (at least in the less regulated work envi-ronment of 1938) with employee-to-employer complaints. . Third, the phrase “filed any complaint” appears along-side three other protected activities: “institut[ing] or caus[ing] to be instituted any proceeding under or related to this chapter,” “testif[ying] in any such proceeding,” and“serv[ing] . . . on an industry committee.”2 29 U. S. C. §215(a)(3). Since each of these three activities involves an interaction with governmental authority, we can fairlyattribute this characteristic to the phrase “filed any com-plaint” as well. “That several items in a list share an attribute counsel in favor of interpreting the other items as possessing that attribute as well.”
Based on this clear meaning, Scalia (shocker) would not look to congressional purpose, and cites Easterbook’s classic Statutes’ Domain:
Third, the phrase “filed any complaint” appears along-side three other protected activities: “institut[ing] or caus[ing] to be instituted any proceeding under or related to this chapter,” “testif[ying] in any such proceeding,” and“serv[ing] . . . on an industry committee.”2 29 U. S. C. §215(a)(3). Since each of these three activities involves an interaction with governmental authority, we can fairlyattribute this characteristic to the phrase “filed any com-plaint” as well. “That several items in a list share an attribute counsel in favor of interpreting the other items as possessing that attribute as well.” . . . Congress may not have protected intracompanycomplaints for the same reason it did not provide a privatecause of action for retaliation against complaints: becauseit was unwilling to expose employers to the litigation, or to the inability to dismiss unsatisfactory workers, which that additional step would entail. Limitation of the retaliation provision to agency complaints may have been an attempt “to achieve the benefits of regulation right up to the point where the costs of further benefits exceed the valueof those benefits.” Easterbrook, Statutes’ Domains, 50U. Chi. L. Rev. 533, 541 (1983).
Scalia also knocks Breyer for implementing a “living United States Code” jurisprudence, who looks to modern statutes to interpret an act passed in 1938.
While the jurisprudenceof this Court has sometimes sanctioned a “living Constitu-tion,” it has never approved a living United States Code. What Congress enacted in 1938 must be applied accordingto its terms, and not according to what a modern Congress (or this Court) would deem desirable.4
Scalia, doubting that the complaint could be filed with anyone, brings Judge Judy into the fold:
Surely the word “complaint” in this question must be assigned an implied addressee. It presumably does notinclude a complaint to Judge Judy. And the only plausible addressee, given the facts of this case, is the employer.
And on snap, Scalia accuses the Court of issuing an advisory opinion!
This Court should not issue an advisory opinion as to what would have been the scope of a retaliation provision covering complaints to employers if Congress had enacted such a provision.
Breyer, unsurprisingly looked to purpose in light of the ambiguous langauge.
The Act protects employees who have “filed any complaint,” 29 U. S. C. §215(a)(3), and interpretation of this phrase “depends upon reading the whole statutory text, considering the purpose and contextof the statute, and consulting any precedents or authorities that inform the analysis,” Dolan v. Postal Service, 546U. S. 481, 486 (2006). This analysis leads us to conclude that the language of the provision, considered in isolation,may be open to competing interpretations. But considering the provision in conjunction with the purpose andcontext leads us to conclude that only one interpretation ispermissible.
So, Breyer starts (but does not finish) with the text. Some dictionaries of the word “filed” “contemplate a writing.”
But other dictionaries provide different definitions that permit the use of the word “file” in conjunction with oralmaterial. One can, for example, file an oral statement that enters a matter “into the order of business.” 1 Funk & Wagnalls New Standard Dictionary of the English Language 920 (rev. ed. 1938) (def. 2) (to file is to “present in the regular way, as to a judicial or legislative body, sothat it shall go upon the records or into the order of business”). This possibility is significant because it means that dictionary meanings, even if considered alone, do not necessarily limit the scope of the statutory phrase to written complaints.
Ah, the battle of the competing dictionaries. Breyer lists a plethora of other state and federal laws, as well as judicial opinions, that use the word “filed” in this context. Notwithstanding these usages, the text is not enough:
The bottom line is that the text, taken alone, cannot provide a conclusive answer to our interpretive question. The phrase “filed any complaint” might, or might not,encompass oral complaints. We must look further.
Where to look? Purpose.
First, an interpretation thatlimited the provision’s coverage to written complaints . . . would undermine the Act’s basic objectives. . . . Why would Congress want to limit the enforcementscheme’s effectiveness by inhibiting use of the Act’s complaint procedure by those who would find it difficult to reduce their complaints to writing, particularly illiterate,less educated, or overworked workers?
Breyer adopts the United States’ test to determine when a complaint is filed:
At oral argument, the Government said that a complaint is “filed” when “a reasonable, objective person would have understood the employee” to have “put the employer on notice that [the] employee is asserting statutory rights under the [Act].” Tr. of Oral Arg. 23, 26. We agree. To fall within the scope of the antiretaliation provision, acomplaint must be sufficiently clear and detailed for areasonable employer to understand it, in light of both content and context, as an assertion of rights protected bythe statute and a call for their protection. This standard can be met, however, by oral complaints, as well as bywritten ones.
Justice Breyer also refuses to rely on the ever-elusive rule of lenity:
Finally, we note that Saint-Gobain invokes the “rule of lenity” in support of its “written complaint” interpretation. That rule applies primarily to the interpretation of criminal statutes. It leads us to favor a more lenient interpretation of a criminal statute “when, after consulting traditional canons of statutory construction, we are left with anambiguous statute.” United States v. Shabani, 513 U. S. 10, 17 (1994). We agree with Saint-Gobain that those whoviolate the antiretaliation provision before us are subject to criminal sanction, 29 U. S. C. §216(a). And we have said that the rule of lenity can apply when a statute withcriminal sanctions is applied in a noncriminal context.See Leocal v. Ashcroft, 543 U. S. 1, 11, n. 8 (2004). But after engaging in traditional methods of statutory interpretation, we cannot find that the statute remains sufficiently ambiguous to warrant application of the rule oflenity here.