ARGUMENT ANALYSIS

Justices lean toward narrow reading of aggravated identity theft

In many ways, Monday’s oral argument in Dubin v. United States felt like a legislation class in law school, with various canons of statutory construction being bandied about. Dubin concerns the reach of the federal aggravated identity theft statute and whether a person must steal another’s identity to commit the crime. At argument, the justices wrestled with whether David Dubin, when he overbilled Medicaid, “used” the “identification of another” “without lawful authority” “during and in relation” to an enumerated felony — here, health care fraud.

Arguing for Dubin, Jeffrey Fisher began by recognizing that what Dubin allegedly did “does not meet any ordinary understanding of the term ‘identity theft.’” Fisher explained why Dubin’s conduct does not fit within the statutory terms either. One, Dubin did not use the patient’s name “in relation to his health care fraud offense” because use of the patient’s name was merely “incidental,” and not “instrumental,” to the fraud. Two, Dubin did not use the patient’s name “without lawful authority,” as he had the patient’s permission to bill Medicaid for services. Further supporting his reading of the statute, argued Fisher, was the statute’s title, “aggravated identity theft,” which “illuminates” “what the statutory text means.” But Fisher did not stop there. He then marshaled several canons of statutory construction that he argued militated in favor of his reading of the statute, including the rule of lenity, the canon against surplusage, the federalism canon, and the canon of constitutional avoidance.

Many of the justices seemed sympathetic to Dubin’s position, with different justices focusing on different canons. Justices Sonia Sotomayor, Neil Gorsuch, and Ketanji Brown Jackson worried about the due process vagueness concerns that could result from the government’s broad reading of the statute. Gorsuch also seemed particularly concerned with the notion that the government’s reading of the statute would “swallow up vast swaths of state law authority as traditionally understood” in violation of the federalism canon. And Justice Amy Coney Barrett had questions about yet another canon of construction, “ejusdem generis,” and wondered why that particular canon does not suggest that the word “use” focuses on “the unlawful possession of identity itself.”

Vivek Suri, arguing for the government, advanced a maximalist view of the identity theft statute. Suri admitted that the government’s position was that every time a person committed a fraud, even a “relatively small fraud,” and uses someone’s name, their conduct would be covered by the statute. Or, as Gorsuch summarized, “every time anyone overbills for anything,” that “triggers the statute.” Sotomayor, Gorsuch, and Jackson continued to express skepticism over this broad position, with Justice Brett Kavanaugh also wondering why, given that the elements of the statute “are vague,” the court should not look to the title of the statute as “a helpful clue about how broadly to read those somewhat elastic terms.” Dubin should have felt pretty good after the argument.

Someone else who should have felt good, or at least important, after the argument, is Chief Judge Jeffrey Sutton of the U.S. Court of Appeals for the 6th Circuit, as the justices spent a fair amount of time unpacking a “heuristic” he adopted in a similar case. As Fisher described it, Sutton explained that the identity theft statute covers “lies about who receives services” and not “lies about how [or when] those services were rendered.” And while Sutton’s heuristic might not answer all the questions that may arise under the statute — for example, lies about what services were provided — at least some of the justices seemed to think that the test that Sutton announced was a good starting point. Indeed, even Suri said that, if the government were to lose, the court should adopt Sutton’s test. Dubin would certainly be happy with that outcome.