180
Scalia, J., dissenting
only two circumstances in which adjustments may be made to an assigned operator's "applicable percentage": (1) when changes to the assignments "as of October 1, 1993," result from the appeals process set out in § 9706(f), see § 9704(f)(2)(A); and (2) when an assigned operator goes out of business, see § 9704(f)(2)(B). No provision allows adjustments to account for post-October 1, 1993, initial assignments. This is perfectly consistent with the view that the § 9706(a) power to assign does not extend beyond October 1, 1993; it is incompatible with the Court's holding to the contrary.
The Court's response to this structural dilemma is nothing short of astonishing. The Court concludes that the applicable percentage based on assignments as of October 1, 1993, may be adjusted to account for the subsequent initial assignments, notwithstanding the statutory command that the applicable percentage be determined "on the basis of assignments as of October 1, 1993," and notwithstanding the statute's provision of two, and only two, exceptions to this command that do not include post-October 1, 1993, initial assignments. "The enunciation of two exceptions," the Court says, "does not imply an exclusion of a third unless there is reason to think the third was at least considered." Ante, at 170. Here, "[s]ince Congress apparently never thought that initial assignments would be late, . . . the better inference is that what we face . . . is nothing more than a case unprovided for." Ante, at 169 (referred to ante, at 170-171). This is an unheard-of limitation upon the accepted principle of construction inclusio unius, exclusio alterius. See, e. g., O'Melveny & Myers v. FDIC, 512 U. S. 79, 86 (1994); Leather-man v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U. S. 163, 168 (1993). It is also an absurd limitation, since it means that the more unimaginable an unlisted item is, the more likely it is not to be excluded. Does this new maxim mean, for example, that exceptions to the hearsay rule beyond those set forth in the Federal Rules
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