Burrage v. U.S. — Can a Heroin Dealer Help to Clarify Whistleblower Law?

By R. Scott Oswald

It’s rare for a criminal appeal — let alone the appeal of a heroin dealer’s sentence for his client’s ill-fated drug binge — to guide our understanding of whistleblower protection laws.

Yet there, on January 27, was the U.S. Supreme Court’s unanimous judgment in Burrage v. United States, a mandatory-minimum drug case that ended up parsing the retaliation provisions of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and more.

And there, too, was a concurrence that fretted about Burrage‘s effect on employees’ rights while barely alluding to the Controlled Substances Act (CSA), under which the case was actually decided.

It was a strange mix: The Court had selected Burrage as its vehicle for a lesson on “but-for” causation — reviving a topic it had visited in mid-2013, when Justice Anthony Kennedy decided, in University of Texas Southwestern Medical Center v. Nassar, that federal courts should apply the but-for standard to assess whether an employee was punished “because of” whistleblowing under Title VII.

In Burrage, Justice Antonin Scalia drew a parallel conclusion. But he drew it with more force and sweep than Justice Kennedy — in essence framing Nassar and Burrage, two radically different cases, as illustrations of a common doctrine.

Connecting the dots between precedents, Justice Scalia indicated that courts should apply a but-for standard whenever the law requires causation, unless a statute plainly says otherwise. He drew no line between criminal law, where this rule is mostly accepted, and civil law, where things are murkier.

“Because of,” “based on,” “by reason of,” “as a result of”: All such phrasings demand “our insistence on but-for causality,” he said — and if Congress intends different, it must pipe up.

Justice Scalia’s musings don’t automatically apply to civil cases; the legal issue here was specific to the CSA. But since the judgment was unanimous — counting the concurrence — and the opinion synthesized many precedents in civil law, Burrage will surely resonate.

The case itself concerned a provision of the CSA that requires a minimum 20-year sentence for dealing certain drugs if “death or serious bodily injury results from the use of” those drugs — the causation component. Here Joshua Banka died in 2010 after using some heroin supplied by Marcus Burrage, yet no one could swear that Mr. Banka’s death was a direct result of using the heroin; he had used other drugs, too.

Would Mr. Banka have lived without the heroin? Unless the answer was clearly “yes,” said Justice Scalia, the minimum sentence simply did not apply.

And so, backed by his colleagues — and eliding the issue of “serious bodily injury” — he reversed the lower courts’ rulings: The prosecution’s proof that heroin contributed to the death would not suffice, he ruled.

Justice Scalia’s causation doctrine has its merits. Like many of his proclamations, it is clear. And his version of the but-for standard hews strongly to precedent: A but-for cause need not be the only cause of an event — it may combine with other factors, he said, so long as those factors, without the last, would end differently.

In this regard Justice Scalia cited both Nassar and Gross v. FBL Financial Services, a 2009 case that applied the but-for standard to the ADEA. And he made a telling tweak in both: Where each case spoke of requiring proof of “the but-for cause,” Burrage rendered the words as “[a] but-for cause.”

So could there be several but-for causes of, say, an employer’s firing of a whistleblower? Clearly so; Justice Scalia does not take his words lightly.

Burrage also calls a but-for cause “the straw that broke the camel’s back” — an earthy formulation made for a jury, especially compared the drier words of forebears like Gross and Nassar. Burrage says with authority that these cases set an identical standard, but Justice Scalia’s phrasing may prove most useful of all.

Still, the senior justice’s doctrinal ambition also will sow mischief, especially in the law of workplace discrimination and retaliation, where there is no blanket rule about how to prove illegal causation.

Before Nassar, for instance, courts generally held that the standard for proving retaliation under Title VII — not specified in the law’s text — was identical to the law’s explicit standard for proving discrimination: Whether an illegal bias was “a motivating factor, even though other factors also motivated the practice.”

Nassar swapped in the more demanding but-for standard, and a Burrage doctrine could similarly wreak havoc on precedent by applying its all-purpose gap filler to other employee-protection statutes where Congress wasn’t careful enough in its drafting.

Is justice served by such a broad stroke? In cases like Burrage, where criminal defendants are outmatched by the government and rely on rules to protect them, Justice Scalia’s approach can scarcely be criticized. But in criminal law, of course, the approach brings nothing new.

The law of workplace discrimination and retaliation is different — and for a reason. Here it is plaintiffs who are outmatched, and who must prove injustice while facing down  a well-paid lawyer who will raise every single weakness in their personnel file, and more besides.

Employee-protection laws exist to level this playing field. Where they are silent on causation, courts have generally construed them based on their remedial purpose — on a statute-by-statute basis, furthermore, since each playing field is tilted in its own way.

A fully realized Burrage rule of construction, blindly filling each legislative gap with “but-for,” admittedly has purist appeal. And it might prompt Congress to improve some laws. Justice Scalia serves everyone well, too, by explaining the but-for standard with flair.

But at least in the workplace, his proposed rule would be a blunt instrument. The courts have done better in many cases already; undoing their work would be a disservice.

Tagged: Title VII of the Civil Rights Act of 1964, Whistleblower Laws (Federal)