__ U.S. __, 16-1276, Digital Realty Trust, Inc. v. Somers

Docket Nº:16-1276
Citation:__ U.S. __, 138 S.Ct. 767, 200 L.Ed.2d 15, 86 U.S.L.W. 4048, 27 Fla.L.Weekly Fed. S 54
Opinion Judge:GINSBURG, Justice.
Party Name:DIGITAL REALTY TRUST, INC., Petitioner v. Paul SOMERS.
Attorney:Kannon K. Shanmugam, Washington, DC, for Petitioner. Daniel L. Geyser, Los Angeles, CA, for Respondent. Christopher G. Michel, pro hac vice, for the United States as amicus curiae, by special leave of the Court, supporting the respondent. Brian T. Ashe, Kiran A. Seldon, Shireen Y. Wetmore, Seyfar...
Judge Panel:GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C.J., and KENNEDY, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. SOTOMAYOR, J., filed a concurring opinion, in which BREYER, J., joined. THOMAS, J., filed an opinion concurring in part and concurring in the judgment, in which ALITO ...
Case Date:February 21, 2018
Court:United States Supreme Court
SUMMARY

Somers alleged that Digital terminated his employment after he reported suspected securities-law violations to senior management. Somers sued, alleging whistleblower retaliation under the Dodd-Frank Act. The Ninth Circuit affirmed denial of a motion to dismiss. The Supreme Court reversed. Dodd-Frank’s anti-retaliation provision does not extend to an individual, like Somers, who has not reported... (see full summary)

 
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__ U.S. __

138 S.Ct. 767, 200 L.Ed.2d 15, 86 U.S.L.W. 4048, 27 Fla.L.Weekly Fed. S 54

DIGITAL REALTY TRUST, INC., Petitioner

v.

Paul SOMERS.

No. 16-1276

United States Supreme Court

February 21, 2018

Argued Nov. 28, 2017.

[138 S.Ct. 769] Syllabus [*]

Endeavoring to root out corporate fraud, Congress passed the Sarbanes-Oxley Act of 2002 (Sarbanes-Oxley) and the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank). Both Acts shield whistleblowers from retaliation, but they differ in important respects. Sarbanes-Oxley applies to [138 S.Ct. 770] all " employees" who report misconduct to the Securities and Exchange Commission (SEC or Commission), any other federal agency, Congress, or an internal supervisor. 18 U.S.C. § 1514A(a)(1). Dodd-Frank defines a " whistleblower" as " any individual who provides ... information relating to a violation of the securities laws to the Commission, in a manner established, by rule or regulation, by the Commission." 15 U.S.C. § 78u-6(a)(6). A whistleblower so defined is eligible for an award if original information provided to the SEC leads to a successful enforcement action. § 78u-6(b)-(g). And he or she is protected from retaliation in three situations, see § 78u-6(h)(1)(A)(i)-(iii), including for " making disclosures that are required or protected under" Sarbanes-Oxley or other specified laws, § 78u-6(h)(1)(A)(iii). Sarbanes-Oxley’s anti-retaliation provision contains an administrative-exhaustion requirement and a 180-day administrative complaint-filing deadline, see 18 U.S.C. § 1514A(b)(1)(A), (2)(D), whereas Dodd-Frank permits a whistleblower to sue an employer directly in federal district court, with a default six-year limitation period, see § 78u-6(h)(1)(B)(i), (iii)(I)(aa).

The SEC’s regulations implementing the Dodd-Frank provision contain two discrete whistleblower definitions. For purposes of the award program, Rule 21F-2 requires a whistleblower to " provide the Commission with information" relating to possible securities-law violations. 17 C.F.R. § 240.21F-2(a)(1). For purposes of the anti-retaliation protections, however, the Rule does not require SEC reporting. See § 240.21F-2(b)(1)(i)-(ii).

Respondent Paul Somers alleges that petitioner Digital Realty Trust, Inc. (Digital Realty) terminated his employment shortly after he reported to senior management suspected securities-law violations by the company. Somers filed suit, alleging, inter alia, a claim of whistleblower retaliation under Dodd-Frank. Digital Realty moved to dismiss that claim on the ground that Somers was not a whistleblower under § 78u-6(h) because he did not alert the SEC prior to his termination. The District Court denied the motion, and the Ninth Circuit affirmed. The Court of Appeals concluded that § 78u-6(h) does not necessitate recourse to the SEC prior to gaining " whistleblower" status, and it accorded deference to the SEC’s regulation under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694.

Held

:

Dodd-Frank’s anti-retaliation provision does not extend to an individual, like Somers, who has not reported a violation of the securities laws to the SEC. Pp. 776 - 782.

(a) A statute’s explicit definition must be followed, even if it varies from a term’s ordinary meaning. Burgess v. United States, 553 U.S. 124, 130, 128 S.Ct. 1572, 170 L.Ed.2d 478. Section 78u-6(a) instructs that the statute’s definition of " whistleblower" " shall apply" " [i]n this section," that is, throughout § 78u-6. The Court must therefore interpret the term " whistleblower" in § 78u-6(h), the anti-retaliation provision, in accordance with that definition.

The whistleblower definition operates in conjunction with the three clauses of § 78u-6(h)(1)(A) to spell out the provision’s scope. The definition first describes who is eligible for protection— namely, a " whistleblower" who provides pertinent information " to the Commission." § 78u-6(a)(6). The three clauses then describe what conduct, when engaged in by a " whistleblower," is shielded from employment discrimination. An individual who meets both measures may invoke Dodd-Frank’s protections. But an individual who falls [138 S.Ct. 771] outside the protected category of " whistleblowers" is ineligible to seek redress under the statute, regardless of the conduct in which that individual engages. This reading is reinforced by another whistleblower-protection provision in Dodd-Frank, see 12 U.S.C. § 5567(b), which imposes no requirement that information be conveyed to a government agency. Pp. 776 - 778.

(b) The Court’s understanding is corroborated by Dodd-Frank’s purpose and design. The core objective of Dodd-Frank’s whistleblower program is to aid the Commission’s enforcement efforts by " motivat[ing] people who know of securities law violations to tell the SEC ." S. Rep. No. 111-176, p. 38 (emphasis added). To that end, Congress provided monetary awards to whistleblowers who furnish actionable information to the Commission. Congress also complemented the financial incentives for SEC reporting by heightening protection against retaliation. Pp. 777 - 778.

(c) Somers and the Solicitor General contend that Dodd-Frank’s " whistleblower" definition applies only to the statute’s award program and not, as the definition plainly states, to its anti-retaliation provision. Their concerns do not support a departure from the statutory text. Pp. 778 - 782.

(1) They claim that the Court’s reading would vitiate the protections of clause (iii) for whistleblowers who make disclosures to persons and entities other than the SEC. See § 78u-6(h)(1)(A)(iii). But the plain-text reading of the statute leaves the third clause with substantial meaning by protecting a whistleblower who reports misconduct both to the SEC and to another entity, but suffers retaliation because of the latter, non-SEC, disclosure. Pp. 778 - 779.

(2) Nor would the Court’s reading jettison protections for auditors, attorneys, and other employees who are required to report information within the company before making external disclosures. Such employees would be shielded as soon as they also provide relevant information to the Commission . And Congress may well have considered adequate the safeguards already afforded to such employees by Sarbanes-Oxley. Pp. 779 - 780.

(3) Applying the " whistleblower" definition as written, Somers and the Solicitor General further protest, will allow " identical misconduct" to " go punished or not based on the happenstance of a separate report" to the SEC. Brief for Respondent 37-38. But it is understandable that the statute’s retaliation protections, like its financial rewards, would be reserved for employees who have done what Dodd-Frank seeks to achieve by reporting information about unlawful activity to the SEC. P. 780.

(4) The Solicitor General observes that the statute contains no apparent requirement of a " temporal or topical connection between the violation reported to the Commission and the internal disclosure for which the employee suffers retaliation." Brief for United States as Amicus Curiae 25. The Court need not dwell on related hypotheticals, which veer far from the case at hand. Pp. 780 - 782.

(5) Finally, the interpretation adopted here would not undermine clause (ii) of § 78u-6(h)(1)(A), which prohibits retaliation against a whistleblower for " initiating, testifying in, or assisting in any investigation or ... action of the Commission based upon" information conveyed to the SEC by a whistleblower in accordance with the statute. The statute delegates authority to the Commission to establish the " manner" in which a whistleblower may provide information to the SEC. § 78u-6(a)(6). Nothing prevents the Commission from enumerating additional means of SEC reporting, [138 S.Ct. 772] including through testimony protected by clause (ii). P. 781.

(d) Because " Congress has directly spoken to the precise question at issue," Chevron, 467 U.S., at 842, 104 S.Ct. 2778 deference is not accorded to the contrary view advanced by the SEC in Rule 21F-2. Pp. 781 - 782.

850 F.3d 1045, reversed and remanded.

GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C.J., and KENNEDY, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. SOTOMAYOR, J., filed a concurring opinion, in which BREYER, J., joined. THOMAS, J., filed an opinion concurring in part and concurring in the judgment, in which ALITO and GORSUCH, JJ., joined.

Kannon K. Shanmugam, Washington, DC, for Petitioner.

Daniel L. Geyser, Los Angeles, CA, for Respondent.

Christopher G. Michel, pro hac vice, for the United States as amicus curiae, by special leave of the Court, supporting the respondent.

Brian T. Ashe, Kiran A. Seldon, Shireen Y. Wetmore, Seyfarth Shaw LLP, San Francisco, CA, Kyle A. Petersen, Seyfarth Shaw LLP, Chicago, IL, Kannon K. Shanmugam, Amy Mason Saharia, A. Joshua Podoll, Meng Jia Yang, Williams & Connolly LLP, Washington, DC, for Petitioner.

Stephen F. Henry, Berkeley, CA, Peter K. Stris, Brendan S. Maher, Daniel L. Geyser, Douglas D. Geyser, Stris & Maher LLP, Los Angeles, CA, for respondent.

OPINION

GINSBURG, Justice.

Endeavoring to root out corporate fraud, Congress passed the Sarbanes-Oxley Act of 2002, 116 Stat. 745 (Sarbanes-Oxley), and the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act, 124 Stat. 1376 (Dodd-Frank). Both Acts shield whistleblowers from retaliation, but they differ in important respects. Most notably, Sarbanes-Oxley applies to all " employees" who report misconduct to the Securities and Exchange Commission (SEC or Commission), any other federal agency, Congress, or an internal supervisor. 18 U.S.C. § 1514A(a)(1). Dodd-Frank delineates a...

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