Lead Opinion
This interlocutory appeal is from the district court’s order denying a Rule 12(b)(6) motion to dismiss two separate but related cases under the whistleblower protection provision of section 806 of the Sarbanes-Oxley Act of 2002(SOX), codified at 18 U.S.C. § 1514A. See Lawson v. FMR LLC,
The plaintiffs, Jackie Hosang Lawson and Jonathan M. Zang, brought separate suits alleging unlawful retaliation by their corporate employers, which are private companies that act under contract as advisers to and managers of mutual funds organized under the Investment Company Act of 1940. Because the two suits shared a common defendant, FMR LLC, and both raised the same question of the scope of employees subject to protection under § 1514A, the district court addressed both cases in a single order. Lawson, 724 F.Supp.2d at 144.
The district court concluded that the whistleblower protection provision within SOX section 806 extends its coverage beyond “employees” of “public” companies
I.
Background
Both plaintiffs are suing their former employers, which are private companies that provide advising or management services by contract to the Fidelity family of mutual funds.
The Fidelity mutual funds are not parties in either suit, and are investment companies organized under the Investment Company Act of 1940, 15 U.S.C. § 80a-3(a)(1). They are registered with the Securities and Exchange Commission (SEC) and are required to file reports under section 15(d) of the Securities Exchange Act of 1934 (1934 Act), 15 U.S.C. § 78o(d). The mutual funds are owned by their shareholders and are not owned or controlled by, or affiliated with, any of the defendant companies. The Fidelity funds are overseen by a single Fidelity Mutual Fund Board of Trustees; a super-majority of the Board’s members are independent of the funds’ advisers. As is not unusual among funds organized under the Investment Company Act, the Fidelity funds have no employees of their own.
Plaintiff Zang was employed by Fidelity Management & Research Co. and later by FMR Co., Inc., which was formed as a subsidiary of Fidelity Management & Research Co. (collectively, the Fidelity Management companies). The Fidelity Management companies have entered into contracts with certain of the Fidelity mutual funds to serve as investment advisers or sub-advisers. As investment advisers to the funds, the Fidelity Management companies are subject to the provisions of the Investment Advisers Act of 1940, 15 U.S.C. § 80b-1 et seq. The Fidelity Management companies are subsidiaries, directly or indirectly, of FMR LLC.
Zang’s employment was terminated in July 2005. On September 15, 2005, he filed a complaint with the Occupational Health & Safety Administration (OSHA) of the Department of Labor (DOL), based on 18 U.S.C. § 1514A(b)(l)(A), which allows a person who alleges discharge or discrimination in violation of § 1514A(a) to seek relief by filing a complaint with the Secretary of Labor. The Secretary has, in turn, delegated enforcement responsibility for § 1514A to the Assistant Secretary for Occupational Safety and Health. See 67 Fed.Reg. 65,008, 65,008 (Oct. 22, 2002). Zang alleged that he had been terminated by the Fidelity Management companies in retaliation for raising concerns about inaccuracies in a draft revised registration statement for certain Fidelity funds. Zang alleged that he reasonably believed these inaccuracies violated several federal securities laws.
OSHA dismissed Zang’s complaint, finding that he was a covered employee within the meaning of § 1514A(a), that is, he was an employee “covered” by the whistleblower protections, but that he had not engaged in conduct protected by that subsection. Zang objected and had a hearing before an Administrative Law Judge (ALJ). The Fidelity Management companies moved for summary decision, contending, among other things, that Zang was not a covered employee. After allowing limited discovery on the issue, the ALJ granted
Interpreting § 1514A(a), the ALJ concluded that merely being an employee of a privately held contractor to a fund was insufficient to come within the term “employee.”
Zang petitioned for review of the ALJ decision by the DOL’s Administrative Review Board (ARB).
Plaintiff Lawson was employed by Fidelity Brokerage Services, LLC, a private subsidiary of FMR Corp., which was succeeded by FMR LLC. Together these companies operate under the trade name Fidelity Investments. Lawson filed SOX complaints against her employer and its parent with OSHA pursuant to § 1514A(b)(1)(A) in 2006 while she was still employed. She alleged retaliation against her for raising concerns primarily relating to cost accounting methodologies. She resigned her employment in September 2007, claiming that she had been constructively discharged. One year after filing, Lawson notified OSHA that she intended to seek review of her SOX claim in federal court. Her claims, which had been consolidated, were closed by the DOL, and she filed a complaint against her employers in the district court.
The defendants, all private companies, filed motions to dismiss under Rule 12(b)(6), arguing that the plaintiffs were not covered employees under § 1514A(a) and, in the alternative, that they had not engaged in protected activity under § 1514A(a)(1). The district court denied the motions to dismiss as to the plaintiffs’ claims alleging retaliation in violation of § 1514A, which is the subject of this ap
The district court held that the SOX whistleblower protection provisions of § 1514A(a) extend to employees of private agents, contractors, and subcontractors to public companies; that the plaintiffs had sufficiently pleaded facts alleging that their private company employers were “either contractors, subcontractors, or agents of publicly held investment companies;” and that both plaintiffs had sufficiently alleged that they had engaged in protected activity under § 1514A(a)(1). Lawson,
The defendants moved that the dispositive issue of § 1514A(a)’s applicability to the plaintiffs be certified for interlocutory appeal under 28 U.S.C. § 1292(b). The district court granted the motion, certified a “controlling question of law” to this court, and stayed the cases before it. Lawson v. FMR LLC, 724 F.Supp.2d. 167, 169 (D.Mass.2010). The defendants petitioned this court for interlocutory review, and the plaintiffs each filed cross-petitions urging this court to grant the appeal. We granted the parties’ cross-petitions for interlocutory review. Lawson v. FMR LLC, No. 10-1944 (1st Cir. Oct. 25, 2010).
II.
Statutory Construction
We limit our review of the district court’s order to the question the court certified:
Does the whistleblower protection afforded by Section 806(a) of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A, apply to an employee of a contractor or subcontractor of a public company, when that employee reports activity which he or she reasonably believes may constitute a violation of 18 U.S.C. §§ 1341, 1343, 1344, or 1348; any rule or regulation of the Securities and Exchange Commission; or any provision of Federal law and such a violation would relate to fraud against shareholders of the public company?
Lawson,
Our review is de novo, both because this is an appeal from a denial of a Rule 12(b)(6) motion and because the issue of statutory interpretation is one of law. See U.S. ex rel. Hutcheson v. Blackstone Med., Inc.,
A. Construction of the statute
1. Text of § 1514A(a)
This case turns on the interpretation of SOX’s whistleblower protection provision, codified at 18 U.S.C. § 1514A. It “is a relatively small part of the Sarbanes-Oxley Act which is composed of many separate statutes and statutory schemes aimed at achieving the Act’s investor-protection goals.” Carnero,
SEC. 806. PROTECTION FOR EMPLOYEES OF PUBLICLY TRADED COMPANIES WHO PROVIDE EVIDENCE OF FRAUD.
(a) In General. — Chapter 73 of title 18, United States Code, is amended by inserting after section 1514 the following:
“ § 1514A. Civil action to protect against retaliation in fraud cases
“(a) Whistleblower protection for employees of publicly traded companies.— No company with a class of securities registered under section 12 of the Securities Exchange Act of 1934 (15 U.S.C. § 781), or that is required to file reports under section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. § 78o(d)), or any officer, employee, contractor, subcontractor, or agent of such company, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any lawful act done by the employee—
“(1) to provide information, cause information to be provided, or otherwise assist in an investigation regarding any conduct which the employee reasonably believes constitutes a violation of section 1341 [mail fraud], 1343 [wire fraud], 1344 [bank fraud], or 1348 [securities or commodities fraud], any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders, when the information or assistance is provided to or the investigation is conducted by—
“(A) a Federal regulatory or law enforcement agency;
“(B) any Member of Congress or any committee of Congress; or
“(C) a person with supervisory authority over the employee (or such other person working for the employer who has the authority to investigate, discover, or terminate misconduct); or
“(2) to file, cause to be filed, testify, participate in, or otherwise assist in a proceeding filed or about to be filed (with any knowledge of the employer) relating to an alleged violation of section 1341, 1343, 1344, or 1348, any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders.”
Sarbanes-Oxley Act of 2002, Pub.L. No. 107-204, § 806, 116 Stat. 745, 802-03 (emphasis added).
The parties agree only that this provision extends whistleblower protection to employees of “public companies” — that is, those with a class of securities registered under section 12 of the 1934 Act or those that file reports with the SEC pursuant to section 15(d) of the 1934 Act. While literally one of these two categories encompasses companies with publicly traded stock, we use the term “public companies” as a shorthand for both categories because companies required to file reports with the SEC pursuant to section 15(d), such as the Fidelity mutual funds, are “public” in the sense that they have issued securities that
The defendants argue that § 1514A(a) provides that no public company — or any officer, employee, contractor, subcontractor, or agent of that company — may discriminate against an employee of such public company for engaging in protected whistleblowing activity. The defendants read the listing of “officer, employee, contractor, subcontractor, or agent” in § 1514A(a) as identifying who is barred from taking retaliatory action against the employees of public companies, but not as extending coverage to those enumerated entities’ own employees.
The plaintiffs contend that the covered “employee” who is given whistleblower protection includes both the employees of
While different readings may be given the term “employee” within the emphasized language of the text of § 1514A(a) itself as to whether the protected employee refers only to employees of the public companies, principles of statutory interpretation lead us to interpret § 1514A(a) in favor of such a limitation. The title of section 806 and the caption of § 1514A(a) are statements of congressional intent which go against plaintiffs’ interpretation. Other provisions of SOX also support and are more consistent with the defendants’ reading and inconsistent with the plaintiffs’ reading. Our reading of “employee” as excluding from coverage employees of officers, employees, contractors, subcontractors, and agents of public companies is also strongly confirmed by the pre-passage legislative history of this section and other sections of SOX and the purpose of the legislation. Further confirmation is provided by the later actions of Congress in rejecting a bill meant to amend SOX and in congressional acceptance of other amendments.
That the immediate text within § 1514A(a) may be read differently as to the scope of the protected “employees” as a matter of grammar needs little discussion. In our view, the more natural reading is the one advanced by the defendants. Each side has an argument that had Congress just added a few words, its intent would have been clearer,
We conclude that only the employees of the defined public companies are covered by these whistleblower provisions; the clause “officer, employee, contractor, subcontractor, or agent of such company” goes to who is prohibited from retaliating or discriminating, not to who is a covered employee and so does not violate the rule against rendering superfluous any statutory language. The text of § 1514A(a) first identifies covered employers: those with a class of securities registered under section 12 of the 1934 Act or those that file reports with the SEC pursuant to section 15(d) of the 1934 Act. Such public companies may not retaliate
Section 1514A(a)’s list of company representatives serves, instead, to ensure an employee of a public company is covered under the provision if he or she were harassed by officers, other employees, or contractors or subcontractors to the public company for reporting fraud in that public company.
2. The title of section 806 and the caption of § 1514A(a)
Both the title of SOX section 806, within which § 1514A(a) is housed, and the caption of § 1514A(a) itself are explicit guides to the limits on the meaning of the textual phrase within § 1514A(a). Section 806 states it concerns “Protection for Employees of Publicly Traded Companies Who Provide Evidence of Fraud.” From that alone, it would be odd to read § 1514A(a) as covering employees of private companies. It is unlikely Congress intended the term “Civil action to protect against retaliation in fraud cases” in the heading of § 1514A to be broader than the terms of the “Protection” discussed in the title of section 806.
Congress did not rest there. It repeated the limitation “Whistleblower protection for employees of publicly traded companies” in the caption in the first line of the text of subpart (a) of § 1514A. This double limitation strongly works against plaintiffs’ interpretation.
Supreme Court, as well as circuit, law requires that we consider the title and the caption of the section under which the language appears. See Bhd. of R.R. Trainmen,
The Supreme Court has addressed a case presenting a similar question to the one here. INS v. Nat’l Ctr. for Immigrants’ Rights, Inc. (NCIR),
Plaintiffs’ fallback is to their argument that the title and the caption do not mean what they say. Just as the term “publicly traded companies” is a shorthand for the two categories of covered companies, plaintiffs argue that the title and caption are no more than a second shorthand meant to include all employees possibly covered in the text. That is not the proper reading, and is contradicted by the plain words of the title of section 806 and the caption of § 1514A(a). The title and caption are not ambiguous and their purpose in being there was not to add to any ambiguity in the text but to clarify. See Fla. Dep’t of Revenue v. Piccadilly Cafeterias, Inc.,
3. Other textual provisions of SOX
The choice by Congress to provide limited coverage in § 1514A(a) was not inadvertent, as shown by its choices elsewhere
Congress also was explicit elsewhere than in its choice of language in § 1514A(a); where it intended to regulate non-public entities, it did not use language equivalent to the text of § 1514A(a). It is also clear that Congress made choices about different regulatory mechanisms for different entities, and intended the coverage of § 1514A(a), which creates a private right of action, not to be so broad as to include employees of non-public companies. For example, it subjected accountants and lawyers to different regulatory mechanisms.
First, when Congress intended to enact broader whistleblower protection in SOX itself in sections other than § 1514A, it did so clearly. In Carnero, we described section 1107 of SOX as “[t]he other whistle-blower provision found in [SOX].”
(e) Whoever knowingly, with the intent to retaliate, takes any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense, shall be fined under this title or imprisoned not more than 10 years, or both.
SOX § 1107,
Second, in other portions of SOX, where Congress intended separate provisions of the Act to apply to employees of private entities, it said so explicitly. By contrast, the title of section 806 and the caption of § 1514A(a) explicitly refer to publicly traded companies. SOX contains a number of provisions, described below, which directly and explicitly regulate the activities of entities other than publicly traded companies. Further, Congress expressly set up different regulatory schemes, which varied with the persons or entities involved. For example, Title I of SOX establishes the Public Company Accounting Oversight Board, which regulates “public accounting firms that prepare audit reports for issuers, brokers, and dealers.” 15 U.S.C. § 7211(c)(1); see also id. §§ 7211-7220. Title II ensures the independence of outside auditors. See id. §§ 7231-7234.
In another example, section 307 of SOX directs the SEC to issue rules governing the professional conduct of attorneys— both in-house and outside counsel — who appear before it in the representation of issuers. See id. § 7245. Moreover, Title
Further, Title V, “Analyst Conflicts of Interest,” defines codes of conduct for outside securities analysts and requires disclosures of conflicts of interest. See id. § 78o-6. And Title VII, “Studies and Reports,” requires the Comptroller General and the SEC to perform various studies, including on securities violations by securities professionals, defined as “public accountants, public accounting firms, investment bankers, investment advisers, brokers, dealers, attorneys, and other securities professionals practicing before the Commission.” SOX § 703(a)(1),
Congress has been clear in SOX when it intends to regulate private entities and has been explicit. By contrast, the limited language within the text of § 1514A(a) and the title and caption show that Congress did not intend coverage to reach beyond employees of public companies. The Supreme Court has directed us to be particularly attentive to such language choices in interpreting the securities laws. See Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A.,
Plaintiffs argue that surely Congress meant to cover all whistleblowers and then-reading is required by Congress’s purpose. Not so. These distinctions and differentiated approaches to multi-faceted problems drawn by Congress, including the coverage limitation in § 1514A(a) to public companies, are consistent with the problems which led to the enactment of SOX. Congress’s primary concern in enacting SOX was not the activities of the advisers to mutual funds organized under the Investment Company Act, like the Fidelity funds here. Indeed, Congress knew that investment companies like the Fidelity mutual funds often do not have their own employees, but only a Board of Trustees, and are often advised and managed by private entities, like the defendants. See Jones v. Harris Assocs. L.P., — U.S. -,
Had Congress intended to extend § 1514A whistleblower coverage protections to the employees of private companies that have contracts to provide investment advice to funds organized under the Investment Company Act, it would have done so explicitly in § 1514A(a) not only in the text of § 1514A(a), but also in the title and caption under which the text is found. Elsewhere in SOX, Congress did specifically address investment companies and investment advisers, and made it explicit when it intended coverage and when it did not. See, e.g., 15 U.S.C. § 7263 (exempting “investment companies] registered under” section 8 of the Investment Company Act from certain SOX provisions); id. § 80b-3(e) (titled “Investment Advisers” and amending the Investment Advisers Act).
The broader reading of § 1514A(a) offered by plaintiffs would provide an impermissible end run around Congress’s choice to limit whistleblower protection in that subsection to the employees of two categories of companies the title and caption call “publicly traded companies.”
4. SOX’s reference to the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century
The whistleblower protection provision of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21), 49 U.S.C. § 42121, was a model for at least portions of the whistleblower protection provision of § 1514A, which incorporates the procedures and burden-shifting framework of AIR 21. See 18 U.S.C. § 1514A(b)(2)(A) (“An action under paragraph (1)(A) shall be governed under the rules and procedures set forth in section 42121(b) of title 49, United States Code.”); id. § 1514A(b)(2)(C) (“An action brought under paragraph (1)(B) shall be governed by the legal burdens of proof set forth in section 42121(b) of title 49, United States Code.”).
The legislative history of SOX also refers to AIR 21. See S.Rep. No. 107-146, at 30 (2002) (additional views of Sen. Hatch, et al.) (stating that an amendment to the bill containing eventual § 1514A made that provision “consistent with [AIR 21] in which we provided whistleblower protections to another class of non-government employees[;] ... we thought it best to track those protections as closely as possible”). The tracking of these protections operates against plaintiffs’ interpretation.
The pertinent section of AIR 21 is entitled “Protection of employees providing air safety information” and states that “[n]o air carrier or contractor or subcontractor of an air carrier may discharge an employee or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employ
There are several important differences between the whistleblower provision of AIR 21 and that of SOX, which operate against plaintiffs’ interpretation. The text of AIR 21 has greater clarity. Further, AIR 21 contains an inherent, textual limiting principle. It does not extend broadly to any contractor or subcontractor, instead § 42121 defines “contractor” to mean “a company that performs safety-sensitive functions by contract for an air carrier.” Id. § 42121(e). This limitation on the term “contractor” excludes from coverage employees of all other contractors and subcontractors.
By contrast, plaintiffs’ broader and unlimited construction of “employee” in § 1514A(a) would provide protection to employees of any contractor or subcontractor. It is true that AIR 21 explicitly went beyond employees of airlines, but only to employees of a limited class of contractors and subcontractors: those who perform “safety-sensitive functions.” That limited expansion serves AIR 21’s purpose of protecting the safety of travelers by focusing on those contractors and subcontractors responsible for safety. No such limitation is built into SOX or into plaintiffs’ expansive reading. Defendants’ reading, by contrast, is self-limited.
Second, the text of AIR 21 does not pose the interpretative problems posed by plaintiffs’ proposed construction of § 1514A(a): excessive breadth and the extension of coverage to employees of employees and employees of officers. In § 1514A(a), Congress chose to employ different language from what it used in § 42121(a), undercutting plaintiffs’ argument that because AIR 21 purportedly covers employees of contractors, so should § 1514A.
Further, in AIR 21, Congress did not consider the subject matter of the complaints — air safety information — to be an adequate limitation on the creation of whistleblower liability in the air carrier business, so it limited the definition of the relevant contractors. Congress did not in SOX consider the subject matter of the complaints to be the only limiting principle, nor to be sufficient in itself to narrow the range of contractors. The plaintiffs’ reading is broader than Congress’s intended reach.
5. Contrast with language of other whistleblower protection statutes
Our reading of § 1514A(a) stands on the text of SOX itself. If more were needed, we also find support in the contrast with whistleblower provisions in other statutes. In contrast with the language of § 1514A(a), we note two other, earlier, federal whistleblower protection statutes
The Nuclear Whistleblower Protection provision of the Energy Reorganization Act, 42 U.S.C. § 5851(a)(1), states that “[n]o employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee)” engaged in protected whistle-blowing activity. The provision defines “employer” as, among other things, “a licensee of the [Nuclear Regulatory] Commission or of an agreement State under” the Atomic Energy Act of 1954, id. § 5851(a)(2)(A), “a contractor or subcontractor of such a licensee or applicant” for a license, id. § 5851(a)(2)(C), and “a contractor or subcontractor of the Commission,” id. § 5851(a)(2)(E).
Similarly, the whistleblower protection provision of the Pipeline Safety Improvement Act of 2002, 49 U.S.C. § 60129(a)(1), states that “[n]o employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee)” engaged in protected whistleblowing activity. That statute goes on to define “employer” as “a person owning or operating a pipeline facility,” id. § 60129(a)(2)(A), or “a contractor or subcontractor of such a person,” id. § 60129(a)(2)(B).
The whistleblower protection provisions of both the Energy Reorganization Act and the Pipeline Safety Improvement Act are explicit in defining which entities and which of those entities’ representatives are covered employers. We view the fact that Congress was not similarly explicit in extending coverage to the employees of contractors, subcontractors, and agents in § 1514A(a) as evidence that Congress did not intend such coverage to exist.
6. Other canons of construction
Our reading of § 1514A is further confirmed by canons of construction mandated by Supreme Court opinions regarding both securities laws and the relationship between investment companies and their advisers.
The Court has admonished the lower federal courts not to give securities laws a scope greater than that allowed by their text. See, e.g., Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc.,
Plaintiffs incorrectly argue that since the statute has some remedial purposes, those purposes must be as broad as plaintiffs say, and it must be assumed Congress chose the mechanism of a broad private
In Janus Capital Group, Inc. v. First Derivative Traders, — U.S. -,
Although there is a close relationship between the private investment adviser defendants and their client mutual funds, as pointed out by the plaintiffs and the SEC as amicus curiae, the two entities are separate because Congress wanted it that way. Had Congress intended to ignore that separation and cover the employees of private investment advisers for whistleblower protections, it would have done so explicitly in § 1514A(a). However, it did not.
Finally, the rule of lenity has no place in our interpretation of § 1514A(a), for several reasons. Application of the rule of lenity is restricted to the interpretation of criminal statutes. Bifulco v. United States,
B. Legislative history
Turning from the statutory language and principles of statutory interpretation which alone require us to reject plaintiffs’ interpretation, we also confirm our understanding of the text by examining the legislative history. See Samantar v. Yousuf, - U.S. -,
1. Contemporaneous legislative history
The contemporaneous legislative history consists of a May 6, 2002, Senate committee report for a bill containing what became § 1514A and statements in the Congressional Record by Senator Leahy, a sponsor of that bill. We address each in turn.
The Corporate and Criminal Fraud Accountability Act of 2002, S.2010, 107th Cong. (2002), was incorporated into SOX as Title VIII and contained the provision that would become § 1514A. The report of the Senate Judiciary Committee accompanying the Corporate and Criminal Fraud Accountability Act makes clear that Congress’s primary concern was the Enron debacle, which involved the stock of a highly visible publicly traded company. See S.Rep. No. 107-146, at 2-5 (2002) (discussing Enron’s collapse, its aftermath, and the need for reform).
The same committee report states that what became § 1514A “would provide whistleblower protection to employees of publicly traded companies,” id. at 13, and that eventual § 1514A was intended to “provide whistleblower protection to employees of publicly traded companies who report acts of fraud to federal officials with the authority to remedy the wrongdoing or to supervisors or appropriate individuals within their company,” id. at 18-19. These statements and others in the report accord with our interpretation. Only employees of publicly traded companies are mentioned; employees of private companies are not.
Senator Leahy stated that the provision that would eventually be codified as § 1514A “would provide whistleblower protection to employees of publicly traded companies who report acts of fraud,” 148 Cong. Rec. S1787 (daily ed. Mar. 12, 2002) (pre-enactment statement), and that “[a]lthough current law protects many government employees who act in the public interest by reporting wrongdoing, there is no similar protection for employees of publicly traded companies who blow the whistle on fraud and protect investors,” id. at S1788;
Plaintiffs point to the committee report’s background discussion as supporting their position. The report decries retaliation against whistleblowers at Enron, a publicly traded company. See S. Rep. 107-146 at 4-5. But the report also discusses retaliation against employees at Arthur Andersen, a private entity which was both a consultant to Enron and its “independent” auditor. See id. at 3. The report states that “[i]n a variety of instances ... corporate employees at both Enron and Andersen attempted to report or ‘blow the whistle’ on fraud, but they were discouraged at nearly every turn.” Id. at 4-5. The report also cites the fact that an “Andersen partner was apparently removed from the Enron account when he expressed reservations about the firm’s financial practices in 2000” as an “example” of “a culture, supported by law, that discourage[d] employees from reporting fraudulent behavior.” Id. at 5.
Congress’s concern about Arthur Andersen was addressed by special provisions as to accountants. See SOX tit. I,
2. Post-enactment legislative activity
After SOX’s enactment, there have been two relevant attempts to amend the Act, one successful, the other not. As the Court said in North Haven Board of Education v. Bell,
We turn to the failed effort to expand the term “employee” in § 1514A(a).
Whistleblower Protection for Employees of Publicly Traded Companies and Registered Investment Companies — No company with a class of securities registered under section 12 of the Securities Exchange Act of 1934 (15 U.S.C. § 78l), or that is required to file reports under section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. § 78o(d)), or that is an investment adviser, principal underwriter, or significant service provider (as such terms are defined under section 2(a) of the Investment Company Act of 1910 (15 U.S.C. § 80a-2(a))) of an investment company which is registered under section 8 of the Investment Company Act of 1910, or any officer, employee, contractor, subcontractor, or agent of such company, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any lawful act done by the employee—
S.2059, 108th Cong. § 116(b) (emphasis added). MFRA was referred to the Senate Committee on Banking, Housing, and Urban Affairs, but it was never reported out of that committee.
Defendants argue that MFRA is evidence that Congress did not believe § 1514A(a) covered employees of private contractors to public companies; if it did, then MFRA’s amendment would have been superfluous. We are more cautious, because there is no statement in MFRA’s legislative history regarding its sponsors’ understanding of section 116(b) or of § 1514A(a).
Later, Congress did amend § 1514A(a). In 2010 the Dodd-Frank Wall Street Re
No company with a class of securities registered under section 12 of the Securities Exchange Act of 1934 (15 U.S.C. § 781), or that is required to file reports under section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. § 78o(d)) including any subsidiary or affiliate whose financial information is included in the consolidated financial statements of such company, or nationally recognized statistical rating organization (as defined in section 3(a) of the Securities Exchange Act of 1934 (15 U.S.C. § 78c)), or any officer, employee, contractor, subcontractor, or agent of such company or nationally recognized statistical rating organization, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any lawful act done by the employee—
18 U.S.C. § 1514A(a), as amended by Pub.L. No. 111-203 §§ 922(b), 929A, 124 Stat. 1376, 1848, 1852 (2010) (emphasis added).
The report of the Senate Committee on Banking, Housing, and Urban Affairs accompanying Dodd-Frank explains that section 929A of that Act amended § 1514A(a) “to make clear that subsidiaries and affiliates of issuers may not retaliate against whistleblowers.” S.Rep. No. 111-176, at 114 (2010). The committee believed such a clarification was necessary because “[t]he language of [§ 1514A(a) ] may be read as providing a remedy only for retaliation by the issuer, and not by subsidiaries of an issuer.” Id.
Furthermore, Senator Cardin, in remarks introducing an amendment to Dodd-Frank that became section 922(b) of that Act, explained that “Section 1514[A] delineates which companies are covered by [SOX] and what actions are prohibited. The Cardin-Grassley amendment expands the provision to include employees of the rating companies.” 156 Cong. Rec. S3349 (daily ed. May 6, 2010). In the course of these remarks, Senator Cardin characterized § 1514A(a) as enacted by SOX as
extending] whistleblower protections to employees of any company that is registered under the SEC Act of 1934 or that is required to file reports under section 15(d) of the same act. The whistleblower provisions of the Sarbanes-Oxley Act protect employees of the publicly traded companies from retaliation by giving victims of such treatment a cause of action which can be brought in Federal court.
Id. Notably, Senator Cardin’s statement again confirms that the covered employees are only those of publicly traded companies.
Dodd-Frank’s successful amendments of § 1514A(a) are not subject to the rule of judicial wariness about legislative inaction. Rather, these later actions by Congress are entitled to some weight as an expression of Congress’s understanding of § 1514A(a)’s meaning, which is consistent with our interpretation.
No Deference Owed to Agency Positions
Congress chose not to give authority to the SEC or the DOL to interpret the term “employee” in § 1514A(a). So there is no basis for Chevron deference. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
Here, independently, no deference is owed for the other reasons we discuss. The DOL, supported by the SEC, makes a threefold argument in favor of plaintiffs’ interpretation. First, as to the particular OSHA regulations regarding coverage under § 1514A(a), the Secretary of Labor admits these regulations are entitled to no deference, and the defendants agree, for the reasons we state below.
We also conclude that these particular OSHA regulations are not entitled to Skidmore deference for several reasons, including that the text of the statute does not permit even that level of deference. See Skidmore v. Swift & Co.,
Second, if there were an on-point holding of the ARB, it might be entitled to some deference as to any ambiguity in the statute. The point is irrelevant for two reasons. First, we find no ambiguity, so no deference is owed. Cf. Welch v. Chao,
We have considered the arguments in the amicus briefs of the DOL and SEC, but we owe no deference to the positions stated there. The SEC has no rulemaking or enforcement authority as to § 1514A, so its interpretation of that provision, in any form, would be owed no deference in any event. See Hoffman Plastic Compounds, Inc. v. NLRB,
IV.
Conclusion
If we are wrong and Congress intended the term “employee” in § 1514A(a) to have a broader meaning than the one we have arrived at, it can amend the statute. We are bound by what Congress has written.
Reversed and remanded with instructions to dismiss the actions. No costs are awarded.
Notes
. The ALJ also concluded that Zang would only be a covered employee if the private Fidelity Management companies acted on behalf of the public Fidelity funds as contractors or subcontractors "in employment matters ... when [they] terminated [Zang's] employment.” Zang v. Fid. Mgmt. & Research Co., No. 2007-SOX-00027,
Zang also argued before the ALJ that the private Fidelity Management companies and the public Fidelity funds should be considered a "single integrated enterprise” for the purpose of evaluating whether he was a covered employee under § 1514A(a). Zang,
. The Secretary of Labor has delegated review of decisions by DOL ALJs to the DOL’s ARB. See 67 Fed.Reg. 64,272, 64,272-73 (Oct. 17, 2002).
. The district court determined that although there was an ALJ decision in Zang’s case, because that decision was on review with the ARB, it was not final. Lawson v. FMR LLC,
. The district court granted the motions to dismiss as to the plaintiffs' state law claims for wrongful discharge in violation of public policy. Lawson,
. Although the Supreme Court has held that under 28 U.S.C. § 1292(b), "appellate jurisdiction applies to the order certified to the court of appeals, and is not tied to the particular question formulated by the district court," Yamaha Motor Corp., U.S.A. v. Calhoun,
. Section 1514A(a) has since been amended by Congress. This is the unamended text in force at all pertinent times here.
. As the case comes to us, the plaintiffs’ employers are not acting as agents for employment purposes of the Fidelity mutual funds, which are public companies but have no employees. Their employers' contracts with those funds are not for employment purposes.
Some opinions by the DOL ARB and by DOL ALJs have indicated that an employee of a non-public company may be able to proceed against his or her employer under § 1514A where such a non-public employer is a contractor, subcontractor, or agent to a public company for employment purposes — that is, where the non-public company retaliates against its own employee at the public company’s behest. See Klopfenstein v. PCC Flow Techs. Holdings, Inc., No. 04-149,
Again, neither plaintiff argues before us that we are faced with a situation where a private company acts as a contractor, subcontractor, or agent of a public company for employment purposes and retaliates against its own employee at the direction of the public company. We express no opinion on the scope of § 1514A(a)'s coverage in such a situation.
. In Carnero v. Bos. Scientific Corp.,
The only other reported district court opinion addressing this question rejected the argument accepted by the district court here. In Brady v. Calyon Sec. (USA),
Two unreported district court cases have also addressed the question. See Ervin v. Nashville Peace & Justice Ctr., No. 3:07-0832,
. For instance, Congress could have more clearly enacted defendants’ interpretation of § 1514A(a) by extending the provision's coverage only to "an employee of such company." Or Congress could have clearly enacted the plaintiffs’ interpretation by defining "employee” or explicitly adding coverage of employees of advisers to investment companies organized under the Investment Company Act of 1940.
. We use the term "retaliate” to cover "discharge, demote, suspend, threaten, harass, or in any other manner discriminate ... in the terms and conditions of employment.” 18 U.S.C. § 1514A(a).
. As said, our interpretation does not render the listing clause superfluous but gives it meaning.
One of our sister circuits has, in addition, hypothesized a particular fact situation. In Fleszar v. U.S. Dep’t of Labor,
. Our reading is entirely consistent with the principles of construction applied and the result reached in United States v. Ozuna-Cabrera,
. Investment advisers and their employees are regulated by the securities laws, and they may be prosecuted for violations of these laws. See 15 U.S.C. § 80b-6 (making it unlawful for investment advisers to, among other things, defraud their clients or prospective clients). In fact, the SEC’s study of violations of securities laws by securities professionals required by SOX section 703 demonstrates that the SEC has been active in prosecuting violations of securities laws by investment advisers. See SEC, Study and Report on Violations by Securities Professionals 6 (2003), available at http://www.sec.gov/news/studies/ sox703report.pdi/ (finding that in SEC actions that reached finality between January 1, 1998, and December 31, 2001, 264 investment advisers or persons associated with investment advisers had been found to have violated securities laws).
. See S.Rep. No. 105-278, at 22 (1998) (stating that the whistleblower protection of AIR 21 "would provide employees of airlines, and employees of airline contractors and subcontractors, with statutory whistleblower protection").
. Because we conclude that the text of § 1514A(a) is unambiguous in limiting whistleblower protection to employees of public companies and reverse the district court, we do not reach a conclusion on the district court’s proposed limiting principle. The district court stated that the phrase "relating to fraud against shareholders” in § 1514A(a)(1) modifies the entire clause "a violation of section 1341, 1343, 1344, or 1348, any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law”. See Lawson,
. Furthermore, interpretative principles applied to immigration cases have no applica
. In the same remarks, Senator Leahy stated more broadly that "[o]ur laws need to encour
. We acknowledge that “failed legislative proposals are 'a particularly dangerous ground on which to rest an interpretation of a prior statute.' ” United States v. Craft,
. MFRA was also introduced in the House in 2004 as H.R. 4505 and referred to the Subcommittee on Capital Markets, Insurance and Government Sponsored Enterprises. It was never reported out of that subcommittee.
. The only statements regarding MFRA's whistleblower protection amendment in the Congressional Record are general. See, e.g., 150 Cong. Rec. S794 (daily ed. Feb. 10, 2004) (statement of Sen. Fitzgerald) (“[MFRA] puts the interests of investors first by: ... instituting Sarbanes-Oxley-style provisions for independent accounting and auditing, codes of ethics, chief compliance officers, compliance certifications, and whistleblower protections.”).
. As described later, the fact that DOL had issued what were non-substantive procedural regulations says nothing about congressional intent in SOX, enacted years earlier. That fact also is irrelevant to the Dodd-Frank amendments because Congress said its concern was to clarify § 1514A(a), and it said nothing about a regulation from DOL, much less one that did not and could not purport to provide a substantive interpretation of the SOX language at issue.
. We accepted in dicta in Day v. Staples, Inc.,
Beyond that, the Secretary of Labor has disclaimed Chevron deference for the regulations at issue. In addition, the notice of final rulemaking promulgating them states that the procedural regulations are “not intended to provide statutory interpretations.” 69 Fed. Reg. 52104, 52105 (Aug. 24, 2004).
. Section 1514A delegates to the Secretary of Labor the authority to enforce the statute through formal adjudication. See 18 U.S.C. § 1514A(b)(1) (“A person who alleges discharge or other discrimination by any person in violation of subsection (a) may seek relief under subsection (c) by ... filing a complaint with the Secretary of Labor....”). The Secretary delegated enforcement responsibility for § 1514A to the Assistant Secretary of Occupational Health and Safety, see 67 Fed.Reg. at 65,008, and review of decisions by ALJs to the DOL's ARB, see 67 Fed.Reg. at 64,272-73.
. The regulations in effect at the pertinent times in this case state that
"[n]o company or company representative may discharge, demote, suspend, threaten, harass or in any other manner discriminate against any employee with respect to the employee's compensation, terms, conditions, or privileges of employment because the employee, or any person acting pursuant to the employee’s request, has engaged in any of the activities specified in paragraphs (b)(1) and (2) of this section.”
. In Johnson v. Siemens Building Technologies, Inc., the complainant brought a claim of retaliation under § 1514A against her employer, a subsidiary of a publicly traded company. The ARB disposed of the case by holding that § 1514A(a) as enacted by SOX covered employees of subsidiaries of public companies. In dicta to which no deference
Dissenting Opinion
dissenting.
Because my colleagues impose an unwarranted restriction on the intentionally broad language of the Sarbanes-Oxley Act, employ a method of statutory construction diametrically opposed to the analysis this same panel employed just weeks ago, take pains to avoid paying any heed to considered agency views to which circuit precedent compels deference, and as a result bar a significant class of potential securities-fraud whistleblowers from any legal protection, I dissent.
Accepting the allegations in the complaint as true, plaintiffs Lawson and Zang are ex-employees of private companies that contract to advise or manage the publicly held Fidelity-brand mutual funds. The mutual funds themselves have no employees. Both plaintiffs blew the whistle on putative fraud by the mutual funds, and both were fired (actually or constructively) by their employers.
The Sarbanes-Oxley Act purports to protect securities-fraud whistleblowers. Specifically, § 806 of the Act provides that “[n]o company with a class of securities registered under section 12 of the Securities Exchange Act of 1934 (15 U.S.C. § 781), or that is required to file reports under section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. § 78o(d)), or any officer, employee, contractor, subcontractor, or agent of such company, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any lawful act done by the employee” to report activity the employee reasonably suspects to be securities fraud. 18 U.S.C. § 1514A(a) (prior to amendment by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010).
For present purposes, it is undisputed that the Fidelity mutual funds fall under § 806, that the plaintiffs’ employers contracted with the Fidelity mutual funds, and
The majority engage in a faulty statutory-interpretation exercise, one whose wrongness is perhaps best highlighted through contrast with our recent decision in United States v. Ozuna-Cabrera,
First, we looked to the plain language of the statute and noted that it contained no restriction limiting the statute’s application to situations involving theft. Id. at 498-99. Instead, the statute contained only the broad phrase “without lawful authority.” Id. Second, we looked to the statutory framework, noting that the phrase “without lawful authority” was used in the statutes criminalizing both identity fraud and aggravated identity theft. Id. at 499. Because identical language appeared in both, related statutes, only one of which referenced theft at all (albeit in the title), we deemed it unlikely that Congress intended the phrase to import the elements of common-law theft. Id. Third, in a footnote, we looked to the statutory title (which, again, referenced theft) and noted that “we do not rely on the titles of statutory enactments in plumbing their meaning ... at the expense of the text itself.” Id. at 499 n. 3 (internal quotation marks removed). We also noted that it was by no means clear that the word “theft” in the title was intended to limit the effective language of the statute. Id. (citing United States v. Godin,
First, looking to the plain language of the statute, one can only conclude that there is no restriction limiting the statute’s application to employees of publicly held companies.
In fact, the majority’s interpretation offends a longstanding rule of statutory interpretation, violating the statutory language by rendering the word “contractor” in the statute superfluous. See, e.g., United States v. Ven-Fuel, Inc.,
Second, looking to the statutory framework, one sees that Congress explicitly enacted narrower whistleblower protection elsewhere in Sarbanes-Oxley, that Congress was explicit where it intended to regulate public entities only, and that Congress’s choices about different mechanisms for different entities support the plaintiffs’ reading of the Act. Cf. Maj. Op. 70-71 (noting that Congress explicitly “enact[ed] broader whistleblower protection elsewhere ... was explicit ... where it intended to regulate non-public entities ... [and] made choices about different regulatory mechanisms for different entities”).
An example of Congress’s enactment of narrower whistleblower protection appears in Sarbanes-Oxley § 501, which bars “a broker or dealer and persons employed by a broker or dealer” from retaliating against “any securities analyst employed by that broker or dealer or its affiliates.” 15 U.S.C. § 78o-6(a)(1)(C). Congress could have similarly narrowed the definition of “employee” in § 806, but it chose not to do so. We should honor that choice.
An example of Congress’s specific reference to publicly held companies appears in § 806 itself. Section 806 specifically invokes companies “with a class of securities registered under section 12 of the Securities Exchange Act of 1934 (15 U.S.C. § 781)” or “required to file reports under
And the majority’s own examples of Congress’s electing to apply different mechanisms to different entities highlight the correctness of a broad reading of § 806. The majority note that “[elsewhere in SOX, Congress did specifically address investment companies and investment advisers.” Maj. Op. 73. The first example they look to is a provision that exempts investment entities (including mutual funds and mutual fund advisers) from certain, specific requirements of the Act. See 15 U.S.C. § 7263. No such exemption appears in § 806, and the absence of an exemption surely suggests that Congress intended to protect the employees of mutual fund advisers.
Third, the statute’s title and caption do not compel a limited reading of its language; instead, the majority’s strained reading comes “at the expense of the text itself.” Ozuna-Cabrera,
Fourth, nothing in the legislative history of Sarbanes-Oxley indicates congressional intent to limit whistleblower protection to employees of public companies. Instead, the legislative history all refers positively to extending whistleblower protection in order to encourage the reporting of securities fraud.
According to Sarbanes-Oxley’s Senate conference report (Section I, titled “PURPOSE”) a key purpose of the chapter that includes § 806 is “to protect whistleblowers who report fraud against retaliation by their employers.” S.Rep. No. 107-146, at *1 (2002). There is no mention of any limitation on which employers are covered. The breadth of this specific purpose comports with the Act’s overall purpose: “to
Moreover, none of the legislative history the majority rely on actually evidences any congressional intent to limit the scope of § 806’s whistleblower protection. All of the statements the majority highlight denote intent to protect employees of publicly traded companies. See Maj. Op. 77-78. Such protection is a wholly uncontroversial and undisputed effect of § 806.
And the majority’s reliance on subsequent legislative history is entirely misplaced. Not only does their reading of the whistleblower provision’s subsequent amendment defy their own faulty logic, but they also ignore the administrative backdrop against which Sarbanes-Oxley was amended by Dodd-Frank.
On the first point, the majority’s read of Dodd-Frank defeats their overall conclusion as a matter of simple grammar. On the one hand, they say that the phrase (from 18 U.S.C. § 1514A) “No [public company], or any ... contractor ... of such company, may discharge ... an employee” does not extend protection to employees of contractors. On the other hand, they say that the phrase (from the same section, post-Dodd-Frank) “No [public company] ... or nationally recognized statistical rat
As to the majority’s ignoring the administrative backdrop, let us start with the well-settled proposition that the courts, when construing a statute, assume that at the time of the statute’s enactment, Congress was aware of courts’ and agencies’ interpretations of existing law. Lorillard v. Pons,
So if circuit precedent has any kind of methodological value then the majority go about things exactly backwards in this case. To reiterate: contrary to this panel’s analysis in Ozuna-Cabrera, the majority ignore the text of § 806, take a myopic view of the section’s context, wrongly inflate the section’s title into operative law, and attribute a limiting intent to legislative history that in reality supports a broad reading of the statute. Again, the majority are wrong.
To the extent the majority rely on analogous statutes, they get that wrong, too. There is indeed evidence that Sarbanes-Oxley was based in part on the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“AIR”). See S. Rep. 107-146, at *26 (2002). The relevant provision of AIR is entitled “Discrimination against airline employees,” and reads, “[n]o air carrier or contractor or subcontractor of an air carrier may discharge an employee or otherwise discriminate against an employee.” 49 U.S.C. § 42121(a). This structure perfectly parallels § 806’s: “[n]o company ... or any ... contractor [or] subcontractor ... of such company, may discharge ... or in
Other basic principles of statutory interpretation support a broad reading of § 806 and undermine the majority’s reasoning. These principles are: (1) that we broadly interpret remedial statutes; (2) that we narrowly interpret criminal and immigration statutes; and (3) that we presume a statute will not create a right of action by implication. The relevance of these principles here is not immediately apparent, so I will explain.
First, courts generally adhere to the principle that “[r]emedial statutes are liberally construed to suppress the evil and advance the remedy.” 3 Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction § 60:1 (7th ed.2010); accord Dudley v. Hannaford Bros. Co.,
Second, at the opposite end of the interpretative spectrum is the so-called rule of lenity, an “ancient rule of statutory construction that penal statutes should be strictly construed against the government ... and in favor of the persons on whom penalties are sought to be imposed.” 3 Singer, Sutherland Statutory Construction § 59:3. In Ozuna-Cabrera, a criminal case, we held that this principle had no place because the text did not support the defendant’s proposed limitations. See
Third and last is the presumption against implied rights of action. The majority repeatedly cite cases expressly applying this principle as if these cases somehow support limiting explicit causes of action, too. Here is a list of several such cases on which the majority wrongly rely: Janus Capital Grp., Inc. v. First Derivative Traders, — U.S. -,
Even more egregious, though, is the majority’s conclusion — after thirty-five pages construing a statutory provision to which they say “different readings may be given,” Maj. Op. 67 that the statute is “not ambiguous” and even “clear” in imposing a limitation on the word “employee” that appears nowhere in the statute’s text. Id. at 80, 83. This peculiar determination
As I’ve mentioned above, the Department of Labor has adjudicatory authority over Sarbanes-Oxley whistleblower complaints.
Again, all this would seem to end our inquiry. Not only does Sarbanes-Oxley § 806 by its terms protect employees of contractors of public companies, but the agency that handles every § 806 whistle-blower complaint has issued formal regulations recognizing that straightforward interpretation, and this court has held that the regulations are owed deference. But, somehow, the authority of all three branches of government does not win the day: the majority disregard Congress’s broad language, reject the agency’s regulations out of hand, and do their best to neutralize this court’s decision in Day by labeling it both distinguishable and dicta. Maj. Op. 81 n. 22.
Here is what we said in Day: “Both the DOL regulations, which are entitled to
That said, we need not go so far as to apply Chevron deference here. While the Department of Labor does suggest that Day compels some degree of deference, it concedes that the regulations are properly due something less than Chevron deference. Naturally, the Skidmore doctrine comes to mind.
In Skidmore v. Swift & Co.,
Nevertheless, the majority conclude that Skidmore has no place here. First, they say, the statute is unambiguous and, therefore, Labor can add nothing to its construction. Maj. Op. 80. On the heels of the majority’s lengthy statutory-interpretation analysis, this claim holds no water. A statute that is susceptible of multiple interpretations and whose meaning requires over thirty pages to explain is neither clear nor unambiguous by definition. See, e.g., 2A Singer, Sutherland Statutory Construction § 45:2 (“Ambiguity exists when a statute is capable of being understood by reasonably well-informed persons in two or more different senses.”). And if the statute is not, in fact, unambiguous, then Skidmore deference is in play.
In guiding judicial inquiry into the appropriate level of respect we should give Labor’s views, Skidmore requires consideration of “the thoroughness evident in [Labor’s] consideration, the validity of its reasoning, [and] its consistency with earlier and later pronouncements.” Skidmore,
To sum the whole thing up, § 806 plainly protects whistleblower employees of contractors of public companies; digging deeper into the section’s context and legislative history only confirms the breadth of § 806’s protections; considered agency views further support a broad read of the statute; and the majority have had to work very hard to reject not only our own precedent but also the views of the other branches of government, to say nothing of grammar and logic. The simple answer to the certified question from the district court
. In addition to our own recent decision in Ozuna-Cabrera, a days-old Supreme Court decision has just reaffirmed the impropriety of imposing extra-textual limitations on statutes: where “[t]here is no indication in the text ... that the [statute] excludes [particular] workers from ... coverage,” the reasonable conclusion is "that Congress did not limit the scope of [the statute]'s coverage.” Pac. Operators Offshore, LLP v. Valladolid, - U.S. -,
. The majority state correctly that their interpretation does not render superfluous the phrase “officer, employee, contractor, subcontractor, or agent of such company” — but that is not my point. Maj. Op. 68. My point, which remains unrebutted, is that their interpretation renders superfluous the word "contractor.”
. Moreover, the majority's contrary example of broader whistleblower protection elsewhere in Sarbanes-Oxley is wrong. Not only is the referenced provision (§ 1107, enacted at 18 U.S.C. § 1513) actually narrower than § 806 in some respects — for example, it covers whistleblowing only to police, not to work supervisors — but it also does nothing to protect whistleblowers. In essence, it is nothing more than a criminal obstruction-of-justice statute targeted at wrongdoers, not a whistle-blower-protection statute targeted at the wronged.
. Indeed, as the majority note, Congress "made it explicit when it intended coverage and when it did not.” Maj. Op. 73 (emphasis added).
. I repeat: the title contains no "explicit guides to the limits" on § 806. Maj. Op. 69.
. Also uncontroversial and undisputed is the majority's discussion in its “Legislative History” section of Congress's addressing "concern about Arthur Andersen” with "special provisions as to accountants.” Maj. Op. 78. In addition to being uncontroversial and undisputed, however, Sarbanes-Oxley's special provisions as to accountants are irrelevant here.
. The majority's reference to Senator Cardin's statement is a textbook example of their imputing an intent to limit where none is evident. Specifically, Senator Cardin's statement says that "[t]he whistleblower provisions of the Sarbanes-Oxley Act protect employees of the publicly traded companies,” 156 Cong. Rec. S3349 (daily ed. May 6, 2010); the majority say this statement "confirms that the covered employees are only those of publicly traded companies.” Maj. Op. 81 (emphasis added). As I point out above, the word "only” would indeed indicate limiting intent — if it appeared in Senator Cardin’s statement (or, for that matter, in absolutely any relevant legislative materials whatsoever). But it does not, so neither does any limiting intent.
. The majority’s result seems to be driven by § 806’s “very broad coverage.” Maj. Op. 69. But very broad coverage was the precise goal of § 806. See Maj. Op. 77-78 n. 17 (considering legislative history supporting broad whistleblower coverage, then rejecting that history by ipse dixit). The majority also refer obliquely to "anomalies” that would occur if we were to give § 806 the broad scope Congress intended; however, they never identify what those "anomalies” are. Maj. Op. 79-80. I, for one, can discern no "anomalies” in a determination that § 806 protects whistle-blowers against retaliation by their employers. If the majority consider anomalous the unlikely scenario where an employee of, say, office superstore Staples manages to spot and report securities fraud in the course of, say, printing and binding a public company's financial reports, I see no reason why that employee should not be a protected whistle-blower as a matter of either law or policy.
. AIR, according to the majority, is not excessively broad because it includes a subsection that narrowly defines “contractor.” But the majority's reliance on AIR's narrower provision as the example proving that § 806’s apparently broader provision is actually narrower than AIR’s is a logical Escher stairway — it’s just as nonsensical as it sounds. That AIR has a limiting definition means AIR is narrow. That § 806 has no limiting definition means § 806 is broad. Logic and grammar preclude any contrary conclusion. And the same reasoning demonstrates that the majority cannot properly rely on analogous whistleblower statutes that include limiting definitions. See Maj. Op. 75 (discussing the Energy Reorganization Act, 42 U.S.C. § 5851(a)(1), and the Pipeline Safety Improvement Act, 49 U.S.C. § 60129(a)).
. Indeed, during this appeal’s pendency, the Supreme Court has again reaffirmed the impropriety of judges’ limiting the scope of a statute's coverage for policy reasons: " '[I]f Congress’ coverage decisions are mistaken as a matter of policy, it is for Congress to change them. We should not legislate for them.’ ” Pac. Operators,
. The rule of lenity applies to immigrants in removal proceedings as well as defendants in criminal proceedings. See, e.g., I.N.S. v. St. Cyr,
. Let me be perfectly clear: my point is that the majority are wrong to rely on cases subject to the rule of lenity. And despite disclaiming any reliance on the rule, the majority still rely on cases where the rule applies. Compare Maj. Op. 69-70 (providing that the majority "follow the same reasoning” as NCIR), with Maj. Op. 76 (providing that "the rule of lenity has no place in our interpretation of § 1514A(a)”).
. The determination is peculiar, in part, because of the basic principle that a court will generally look beyond a statute's text only when interpreting ambiguous statutes. See, e.g., Gen. Motors Corp. v. Darling’s,
. Although my dissent limits its discussion to the Department of Labor's regulations, the Securities and Exchange Commission, too, has filed an amicus brief in this case urging the same broad interpretation of § 806.
. Congress has not given Labor substantive rule-making authority, but this does not matter for reasons I will discuss shortly.
. In fact, the majority implicitly acknowledge the validity of Labor's grammatical read
. "Does the whistleblower protection afforded by § 806(a) of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A, apply to an employee of a contractor or subcontractor of a public company, when that employee reports activity which he or she reasonably believes may constitute a violation of 18 U.S.C. §§ 1341, 1343, 1344, or 1348; any rule or regulation of the Securities and Exchange Commission; or any provision of Federal law and such a violation would relate to fraud against shareholders of the public company?”