In United States v. Pate, No. 20-10545 (Oct. 11, 2023), the en banc Court–in an opinion authored by Judge Newsom–vacated Mr. Pate’s § 1521 convictions and remanded for resentencing.  

Mr. Pate filed liens against property owned by a number of people he thought wronged him, including a former Commissioner of the IRS and a former Secretary of the Treasury.  He was then charged with and convicted of violating 18 U.S.C. §  1521, which criminalizes the filing of retaliatory liens against the property of “an individual described in” 18 U.S.C. § 1114, which, in turn, refers to “any officer or employee of the United States.”

The en banc Court considered whether a former civil servant counts as an “officer or employee of the United States,” and answered in the negative.  Considering the ordinary meaning of the phrase “any officer or employee of the United States,” the en banc Court determined that the phrase would not be understood by the average speaker of American English to include former officers or employees of the United States.      

Judge Rosenbaum, joined by Chief Judge William Pryor and Judge Newsom, concurred.  She wrote separately to underscore the problems with the government’s argument of appealing to statutory purpose to expand the textually clear scope of criminal liability under §§ 1114 and 1521.  She noted that relying solely on congressional purpose collides with bedrock principles of due process and the separation of powers.  

Judge Brasher concurred in part, noting that the phrase “any officer of employee of the United States” may reasonably be interpreted–in the right context–to include former officers and employees.  

Judge Grant, joined by Judges Branch and Lagoa, dissented.  She wrote separately to emphasize the illogical consequences introduced by the majority’s hypertechnical reading, and to put a finer point on why a comparison between this statute and two other provisions of Title 18 should not derail the Court from concluding that the best reading of § 1521 covers acts targeting both current and former federal officials.  

Judge Lagoa dissented, joined by Judges Branch and Grant.  In her view, a natural reading of § 1521, in full and in context, protects both current and former federal officers and employees who are retaliated against “on account of the performance of [their] official duties.”