Justice Scalia still doesn’t like the word “nexus” and is afraid of the “devil of the Ninth Circuit’s imagining”

January 11th, 2012

Two of Nino’s pet peeves arose in Pacific Operator v. Valladolid: the word “nexus” (which he hates) and the Ninth Circuit (which he also hates).

I join the Court’s judgment that the Ninth Circuit properly remanded this case to the Benefits Review Board, and I agree with almost all of the Court’s opinion. Mydisagreement is limited to the last two substantive paragraphs of Part IV, which endorse the Ninth Circuit’s“substantial-nexus” test for determining the scope of coverage under 43 U. S. C. §1333(b). The Court indulges in considerable understatement when it acknowledges that this test “may not be the easiest to administer,” ante, at 14. “Substantial nexus” is novel legalese with no established meaning in the present context. I agree with the Court’s rejection of some of the clearer rules proposed by theparties—which, though easier to apply, are unmoored from the text of §1333(b). But if we must adopt an indeterminate standard (and the statute’s “as the result of ” language leaves us no choice) I prefer the devil we know tothe devil of the Ninth Circuit’s imagining. I would hold that an employee may recover under §1333(b) if his injury was proximately caused by operations on the Outer Continental Shelf (OCS).

“Substantial nexus,” by contrast, is an indeterminate phrase that lacks all pedigree. … Like the word “nexus” itself, the definition of “substantial nexus” in our state-tax cases does not require any causal relationship whatsoever. The proximate-cause test, bycomparison, represents a much more natural interpretation of a statute that turns on causation.

Scalia also beats up the California Supreme Court:

*Strange to say, the California Supreme Court has held that this unmistakable term-of-art reference to a rule found in the common law of torts does not establish a rule “identical to that found in the common law of torts,” but merely “elaborat[es] the general requirement that the injury arise out of the employment.” LaTourette v. Workers’ Compensation App. Bd., 17 Cal. 4th 644, 651, n. 1, 951 P. 2d 1184, 1187, n. 1 (1998) (internal quotation marks omitted). Perhaps (who knows?) laterCalifornia Supreme Court cases will “clarify” this general requirementby saying that it requires a “substantial nexoos” between the employment and the injury.

Plus Scalia channels a little Sir Walter Scott with a back-handed benchslap.

Before today,I would have thought it clear that courts must apply proximate-cause analysis to the “resulting from” provision; but that would seem quite peculiar if (as the Court holdstoday) we apply substantial-nexus analysis to the neighboring “occurring as the result of ” provision. Surely both phrases express the same concept. What a tangled web we weave.

Scott wrote:

Oh what a tangled web we weave,
When first we practise to deceive!

Scalia made a similar point in oral argument for First American Financial Corp. v. Edwards.

MR. YANG: There is also a threshold. Obviously, Congress can’t simply narrow the class of -of plaintiffs to say people with college degrees, or people who were born on a Monday. There needs to be a sufficient connection between the –

JUSTICE SCALIA: A nexus, right? Your brief is full of nexus.

MR. YANG: Would you — would you –

JUSTICE SCALIA: Legal jargon for “connection.”

MR. YANG: We’ll use “connection” here.

JUSTICE SCALIA: Lovely. Say connection, I might add. I love it. (Laughter.)

MR. YANG: We’ll say “connection.”