United States v. Project on Government Oversight

I concur in the judgment reached by the majority. I also concur in much of the analysis supporting majority opinion. However, I cannot concur in the majority’s disposition of the Government’s cross-appeal challenging the District Court’s construction of 18 U.S.C. § 216(b). I agree that the Government loses on the merits, but I think the issue is much closer than is suggested by the majority opinion.

As the majority opinion properly notes, our review of § 216(b) is de novo, so we owe no deference to the District Court’s construction of the disputed penalty provision. It is unclear whether the…