Beating The Obvious Plain Text Argument

In a follow-up post to the Scalia meme, what do you when the plain text of a statute appears to hurt you? 

Jeff Fisher and Thomas Scott Thompson had to deal with this problem in their cert petition in T-Mobile South LLC v. City of Roswell. In short, their client T-Mobile South complains that a local government failed to abide by the "in writing" requirement of Section 322(c)(7)(B)(iii) of the Communications Act of 1934 when it denied T-Mobile South's application for a personal wireless facility. The local government issued a written denial that did not list any reasons for the denial. The text of the statute provides that any decision by a state or local government denying a request to place, construct, or modify a personal wireless facility “shall be in writing and supported by substantial evidence contained in a written record.”

The Eleventh Circuit held that the local government's simple, written denial of T-Mobile South's application satisfied the plain text of Section 322(c)(7)(B)(iii). Fisher and Thompson recognized that they too had to begin with the text of the statute. There's simply no way around that. But they frame the textual analysis to suggest that the textual inquiry isn't as simple as the other side would have you believe.

The first paragraph in their textual analysis:

We begin with text, and with this Court’s familiar admonition that “[s]tatutory interpretation is a holistic endeavor.” Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 60 (2004) (internal quotation marks and citation omitted). Thus, each statutory term should be construed “not in isolation, but ‘in its proper context.’” Porter v. Nussle, 534 U.S. 516, 527 (2002) (quoting McCarthy v. Bronson, 500 U.S. 136, 139 (1991)). Indeed, “[a] provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme – because . . . only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.” United Sav. Ass’n v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371 (1988).

Pet. for Writ of Cert. at 22 (my emphasis).

That paragraph is a great example of turning a negative into a positive. To the extent that the other side's plain text argument could be neutralized, Fisher and Thompson accomplished that. 

They then built their own plain text argument on the combined phrases "in writing and supported by substantial evidence contained in the record." That latter phrase requires, in their view, that the local government point to the "substantial evidence" in its written decision. Four circuits agree with that approach, whereas the Eleventh Circuit stands with only the Fourth Circuit. 

I think that the Eleventh and the Fourth have it right, at least based on plain text of Section 322(c)(7)(B)(iii). The better reading of the "supported by substantial evidence" language is that that support must simply be "contained in the record." Which is precisely what the text says. 

I haven't read the Brief in Oppositon. Hopefully the local government fires back with something like: "The answer to this question begins--and ends--with the text."