Canons of Construction for Dysfunctional Statutes: A Comment on Bennett
Shaun Bennett’s Whistling Loud and Clear: Applying Chevron to Subsection 21F of Dodd–Frank meticulously analyzes a securities law problem of considerable complexity. Bennett wrote it after the Supreme Court had granted certiorari in Digital Realty Trust, Inc. v. Somers, but before the Court’s decision in the case. Just before the Note and this Comment went to press, the Court issued its opinion. The Note discusses the so-called “whistleblower” provision of Section 922 of the Dodd–Frank Wall Street Reform and Consumer Protection Act, codified as Section 21F of the Securities Exchange Act of 1934.4 Paragraph (a) of that provision defines a “whistleblower” as someone who provides information relating to a violation of the securities laws to the SEC. Paragraph (h) provides various protections to whistleblowers, including protection against termination of employment. The interpretive problem before the Court arose because certain employees who reported alleged securities law violations to their employers, but not to the SEC, have sought whistleblower status and protection against termination under Section 21F. The Second, Fifth, and Ninth Circuits resolved those claims in three distinct ways. The Second Circuit deferred to an SEC rule extending protection against discharge to employees who report securities law violations to their employer, whether or not they also report to the SEC. The Ninth Circuit did not defer to the SEC’s rule but still found that the statute’s protections apply to the same broad class of employees. The Fifth Circuit, by contrast, took the more traditional position that the term, once defined, has the defined meaning throughout the relevant statutory provision. The Court granted certiorari in the Ninth Circuit case to resolve the conflict.