Asadi v. G.E. Energy (USA), L.L.C.

• Decision Date: 17 July 2013
• Docket Number: No. 12–20522.,12–20522.
• Parties: Khaled ASADI, Plaintiff–Appellant, v. G.E. ENERGY (USA), L.L.C., Defendant–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

720 F.3d 620

Khaled ASADI, Plaintiff–Appellant,

v.G.E. ENERGY (USA), L.L.C., Defendant–Appellee.

No. 12–20522.

United States Court of Appeals, Fifth Circuit.

July 17, 2013.

Ronald Edward Dupree, Jr. (argued), Esq., Houston, TX, for Plaintiff–Appellant.

Linda L. Addison, Esq., Fulbright & Jaworski L.L.P., New York, NY, Darryl Wade Anderson, Fulbright & Jaworski, L.L.P., Houston, TX, Jonathan Saul Franklin (argued), Fulbright & Jaworski L.L.P., Washington, DC, for Defendant–Appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before ELROD and HIGGINSON, Circuit Judges, and JACKSON, District Judge.^*

JENNIFER WALKER ELROD, Circuit Judge:

Plaintiff–Appellant Khaled Asadi (“Asadi”) filed a complaint alleging that Defendant–Appellee G.E. Energy (USA), L.L.C. (“GE Energy”) violated the Dodd–Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd–Frank”), 15 U.S.C. § 78u–6(h) (the “whistleblower-protection provision”), by terminating him after he made an internal report of a possible securities law violation. The district court granted GE Energy's motion to dismiss for failure to state a claim. Because Asadi was not a “whistleblower” under Dodd–Frank, we AFFIRM.

I.

In 2006, Asadi accepted GE Energy's offer to serve as its Iraq Country Executive and relocated to Amman, Jordan. At a meeting in 2010, while serving in this capacity, Iraqi officials informed Asadi of their concern that GE Energy hired a woman closely associated with a senior Iraqi official to curry favor with that official in negotiating a lucrative joint venture agreement. Asadi, concerned this alleged conduct violated the Foreign Corrupt Practices Act (“FCPA”), reported the issue to his supervisor and to the GE Energy ombudsperson for the region. Shortly following these internal reports, Asadi received a “surprisingly negative” performance review. GE Energy pressured him to step down from his role as Iraq Country Executive and accept a reduced role in the region with minimal responsibility. Asadi did not comply and, approximately one year after he made the internal reports, GE Energy fired him. ¹

Asadi filed a complaint alleging that GE Energy violated Dodd–Frank's whistleblower-protection provision by terminating him following his internal reports of the possible FCPA violation.² GE Energy moved to dismiss Asadi's complaint under Rule 12(b)(6) on the basis that it failed to state a claim because, inter alia, (1) Asadi does not qualify as a “whistleblower” under the whistleblower-protection provision, and (2) the whistleblower-protection provision does not apply extraterritorially. The district court dismissed Asadi's whistleblower-retaliation claim with prejudice, concluding that the whistleblower-protection provision “does not extend to or protect Asadi's extraterritorial whistleblowing activity.” Having reached this conclusion, it declined to decide whether Asadi qualified as a “whistleblower” under the whistleblower-protection provision. Asadi filed a timely notice of appeal.

II.

We review de novo a district court order granting a Rule 12(b)(6) motion to dismiss for failure to state a claim and may affirm on any basis supported by the record. Torch Liquidating Trust ex rel. Bridge Assocs. v. Stockstill, 561 F.3d 377, 384 (5th Cir.2009) (citation omitted). We “accept[ ] all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.2007) (internal quotation marks omitted). The only issues on appeal are interpretations of Dodd–Frank, which we review de novo. Rothe Dev., Inc. v. U.S. Dep't of Def., 666 F.3d 336, 338 (5th Cir.2011).

III.

When faced with questions of statutory construction, “we must first determine whether the statutory text is plain and unambiguous” and, “[i]f it is, we must apply the statute according to its terms.” Carcieri v. Salazar, 555 U.S. 379, 387, 129 S.Ct. 1058, 172 L.Ed.2d 791 (2009) (citations omitted); see also BedRoc Ltd. v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004) (“The preeminent canon of statutory interpretation requires us to ‘presume that [the] legislature says in a statute what it means and means in a statute what it says there.’ ”) (quoting Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253–54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992)). “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). If the statutory text is unambiguous, our inquiry begins and ends with the text. BedRoc Ltd., 541 U.S. at 183, 124 S.Ct. 1587.

The parties' arguments in this case implicate several additional principles of interpretation. In construing a statute, a court should give effect, if possible, to every word and every provision Congress used. See, e.g., Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (“[A] statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant” (citation and internal quotation marks omitted)). But see, e.g., Corley v. United States, 556 U.S. 303, 325, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009) (Alito, J., dissenting) (“Like other canons, the antisuperfluousness canon is merely an interpretive aid, not an absolute rule.” (citing Germain, 503 U.S. at 254, 112 S.Ct. 1146)); United States v. Monsanto, 491 U.S. 600, 611, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989) (“We respect these [general canons of statutory construction], and they are quite often useful in close cases, or when statutory language is ambiguous. But we have observed before that such interpretative canon[s are] not a license for the judiciary to rewrite language enacted by the legislature.” (citation and internal quotation marks omitted)). Also, if possible, we interpret provisions of a statute in a manner that renders them compatible, not contradictory. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (“A court must ... interpret the statute as a symmetrical and coherent regulatory scheme, and fit, if possible, all parts into an harmonious whole.” (citations and internal quotation marks omitted)). With these principles in mind, we turn to the question presented in this appeal.

IV.

Congress enacted Dodd–Frank in the wake of the 2008 financial crisis. Section922 of Dodd–Frank, as one component of the Act's comprehensive reform of the U.S. financial regulatory system, encourages individuals to provide information relating to a violation of U.S. securities laws to the Securities and Exchange Commission (“SEC” or “Commission”). Section 922, codified at 15 U.S.C. § 78u–6, encourages such disclosures through two related provisions that: (1) require the SEC to pay significant monetary awards to individuals who provide information to the SEC which leads to a successful enforcement action; and (2) create a private cause of action for certain individuals against employers who retaliate against them for taking specified protected actions.³ We must answer a relatively straightforward question relating to the latter provision in this case: whether an individual who is not a “whistleblower” under the statutory definition of that term in § 78u–6(a)(6) may, in some circumstances, nevertheless seek relief under the whistleblower-protection provision. For the reasons that follow, we hold that the plain language of the Dodd–Frank whistleblower-protection provision creates a private cause of action only for individuals who provide information relating to a violation of the securities laws to the SEC. Because Asadi failed to do so, his whistleblower-protection claim fails.

A.

We start and end our analysis with the text of the relevant statute—15 U.S.C. § 78u–6. That section is titled “Securities whistleblower incentives and protection” and contains ten subsections. The interplay between two of these subsections—(a) and (h)—is the focus of the statutory-interpretation question presented in this case.⁴ Subsection (a) provides definitions for certain terms used throughout § 78u–6. Included in this list of terms defined for purposes of § 78u–6 is “whistleblower.” Specifically, “[t]he term ‘whistleblower’ means any individual who provides, or 2 or more individuals acting jointly who provide, information relating to a violation of the securities laws to the Commission, in a manner established, by rule or regulation, by the Commission.” § 78u–6(a)(6) (emphasis added). This definition, standing alone, expressly and unambiguously requires that an individual provide information to the SEC to qualify as a “whistleblower” for purposes of § 78u–6. See, e.g., Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 226 (1st ed. 2012) (“When ... a definitional section says that a word ‘means' something, the clear import is that this is its only meaning.” (emphasis in original)).

Subsection (h), titled “Protection of whistleblowers,” provides whistleblowers a private right of action against employers who take retaliatory actions against the whistleblower for taking certain protected actions. § 78u–6(h). Subsection (h) includes three paragraphs. Only paragraph (1), titled “Prohibition against retaliation,” is relevant to this appeal. Paragraph (1) is divided into three subparagraphs. Subparagraph (A), the specific focus of this appeal, provides in its entirety:

No employer may discharge, demote, suspend, threaten, harass, directly or indirectly, or in any other manner discriminate against, a whistleblower in the terms and conditions of employment because of any lawful act done by the whistleblower—

(i) in providing information to the Commission in accordance with this section;

(ii) in...