Stat. vs. U.S.C.

We all use the United States Code (U.S.C.) (or the annotated versions, U.S.C.A. and U.S.C.S.) when we're looking for laws on a given topic. It's convenient to have laws grouped together by subject, and it's great to have amendments incorporated into one text. But it's important to remember that the United States Statutes at Large (Stat.) matters, especially if there's a conflict.

When might this make a difference? One example is found in a case the Seventh Circuit decided last week, Gonzalez v. Village of West Milwaukee, No. 10-2356 (7th Cir. Feb. 2, 2012). This came to my attention because it cited an article I wrote about codification, Mary Whisner, The United States Code, Prima Facie Evidence, and Positive Law, 101 Law Libr. J. 545 (2009). (Nice to know that someone read it and found it useful!)

Gonzalez asserted a Privacy Act claim against a municipality. One defense was that that the Privacy Act only applies to federal agencies. Bear with me here: I have to quote several provisions of both Stat. and U.S.C. to show how the two versions clashed.

Section 3 of the Privacy Act of 1974, Pub. L. 93-579, 88 Stat. 1896, added a new section to the United States Code: 5 U.S.C. §552a. Since title 5 is one of the titles that has been enacted into positive law, Congress explicitly provided where the new section should be codified.

But that wasn't the only section of the Privacy Act. Section 7 provided:

(a)(1) It shall be unlawful for any Federal, State or local government agency to deny to any individual any right, benefit, or privilege provided by law because of such individual’s refusal to disclose his social security account number.

The act didn't say where to codify § 7, so the Office of Law Revision Counsel (the people who codify laws) put it into a note to 5 U.S.C. § 552a. (The Law Revision Counsel couldn't just make up a new section number: everything that has a section number of its own in a title that's been enacted as positive law was put there by Congress.)

5 U.S.C. § 552a says:

(a) DEFINITIONS.—For purposes of this section—
(1) the term "agency" means agency as defined in section 552(e) [now 552(f)] of this title;

And 5 U.S.C. § 552(f) says:

(f) For purposes of this section, the term—
(1) ‘"agency" as defined in section 551(1) of this title includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency;

In 2005, the Sixth Circuit found that  § 7 didn't apply to a local government because § 7 was codified with § 552 and it didn't fit within § 552's definition of "agency."

The defendant in Gonzalez made that argument, too, but the Seventh Circuit went back to Statutes at Large, where § 7 very clearly does apply to local governments. It doesn't matter that § 7 was codified in a note to § 552. The language "for purposes of this section" meant the section of the original Privacy Act (§ 3), not 5 U.S.C. § 552 and whatever was tucked into a note.

Gonzalez lost his Privacy Act claim on other grounds, but § 7 does apply to local governments. The moral of the story: the text in Statutes at Large is the law.