Lawson v. Fmr Co., Inc.

United States Court of Appeals
For the First Circuit

No. 10-2240

JACKIE HOSANG LAWSON; JONATHAN M. ZANG,

Plaintiffs, Appellees/Cross-Appellants,

v.

FMR LLC, f/k/a FMR Corp.; FMR CO., INC.; FMR CORP., d/b/a
Fidelity Investments; FMR LLC, d/b/a Fidelity Investments;
FIDELITY BROKERAGE SERVICES, LLC, d/b/a Fidelity Investments;
FIDELITY MANAGEMENT & RESEARCH COMPANY,

Defendants, Appellants/Cross-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Lynch, Chief Judge,
Howard and Thompson, Circuit Judges.

Paul E. Nemser, with whom Wilfred J. Benoit, Jr., Goodwin
Proctor LLP, Eugene Scalia, Jennifer J. Schulp, and Gibson, Dunn &
Crutcher LLP were on brief, for appellants/cross-appellees.
Robin S. Conrad, Shane B. Kawka, National Chamber Litigation
Center, Inc., Willis J. Goldsmith, Wendy C. Butler, and Jones Day,
on brief for Chamber of Commerce of the United States of America,
amicus curiae.
Indira Talwani, with whom Segal Roitman, LLP, was on brief,
for appellee/cross-appellant Jackie Hosang Lawson.
Jonathan M. Zang pro se.
Mary J. Rieser, Attorney, with whom M. Patricia Smith,
Solicitor of Labor, Jennifer S. Brand, Associate Solicitor, and
Jonathan T. Rees, Acting Counsel for Whistleblower Programs, were
on brief, for the Secretary of Labor as amicus curiae.
Mark D. Cahn, General Counsel, Richard M. Humes, Associate
General Counsel, and Thomas J. Karr, Assistant General Counsel, on
brief for the Securities and Exchange Commission as amicus curiae.

February 3, 2012
 LYNCH, Chief Judge. 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,

724 F. Supp. 2d 141 (D. Mass. 2010); Fed. R. Civ. P. 12(b)(6). It

raises important questions of first impression.

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 (as those terms are

defined in the section) to encompass also the employees of private

companies that are contractors or subcontractors to those public

companies. Id. at 163. Concerned that this interpretation could

be thought too broad, the district court then imposed a limitation,

not found in the text, that the employees must be reporting

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violations "relating to fraud against shareholders." Id. 159-60.

We interpret the statute differently and reverse.

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

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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)(1)(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

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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 summary decision for the Fidelity Management

companies on that basis and dismissed. Zang v. Fid. Mgmt. &

Research Co., No. 2007-SOX-00027, 2008 WL 7835900 (Dep't of Labor

ALJ Mar. 27, 2008).

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."1

Zang petitioned for review of the ALJ decision by the

DOL's Administrative Review Board (ARB).2 Zang then gave notice to

1
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, 2008 WL 7835900, at *14 (Dep't of Labor ALJ Mar. 27,
2008). The ALJ concluded that the funds had no role in the
Fidelity Management companies' employment decisions and Zang had
not sufficiently alleged that the private Fidelity Management
companies had acted as the funds' "agent or contractor in regard to
employment matters" and dismissed his complaint. Id. at *18. That
issue is not before us.
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, 2008 WL 7835900, at *15. The ALJ rejected this argument, id.
at *18, and that issue is also not before us.
2
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

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the DOL of his intention to file an action in federal court and

filed his complaint against the Fidelity Management companies in

the district court, terminating his appeal with the ARB. Under

SOX, a claimant may seek de novo review in federal district court

if the DOL has not issued a final decision on a complaint within

180 days of its filing.3 18 U.S.C. § 1514A(b)(1)(B).

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.

(Oct. 17, 2002).
3
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, 724 F. Supp. 2d
141, 151 (D. Mass. 2010). And since more than 180 days had elapsed
since his claim was filed with OSHA, his complaint was properly
before the district court. Id. at 152. That portion of the
district court's opinion is not an issue on appeal.

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 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 appeal.4 Lawson, 724 F. Supp. 2d 141.

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, 724 F. Supp. 2d at

163-65.

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

4
The district court granted the motions to dismiss as to the
plaintiffs' state law claims for wrongful discharge in violation of
public policy. Lawson, 724 F. Supp. 2d at 167. The dismissal of
those claims is not a subject of this appeal.

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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, 724 F. Supp. 2d at 169; see also 28 U.S.C. § 1292(b).5

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

5
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, 516 U.S. 199, 205 (1996), we need not exercise our power
to go beyond the question certified, and do not do so here. See 16
Wright & Miller, Federal Practice and Procedure § 3929 (2d ed.
2011) ("Of course this power need not be exercised -- ordinarily
the question specified by the district court . . . will be the
focus of arguments on the merits.").

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statutory interpretation is one of law. See U.S. ex rel. Hutcheson

v. Blackstone Med., Inc., 647 F.3d 377, 383 (1st Cir. 2011);

Carnero v. Bos. Scientific Corp., 433 F.3d 1, 4 (1st Cir. 2006).

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, 433 F.3d

at 5.

We start our analysis with the particular subsection at

issue before considering other relevant text in the statute, both

in the section and elsewhere. Section 806 of SOX reads in

pertinent part:

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. 78l), or that is
required to file reports under section 15(d)
of the Securities Exchange Act of 1934 (15

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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."

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Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, § 806, 116 Stat.

745, 802-03 (emphasis added).6 The interpretation of the

emphasized language in the text of subsection (a) is in dispute.

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 may be sold to the

public and are required to make periodic reports to their

investors. The question is whether Congress intended the

whistleblower provisions of § 1514A also to apply to those who are

employees of a contractor or subcontractor to a public company and

6
Section 1514A(a) has since been amended by Congress. This
is the unamended text in force at all pertinent times here.

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who engage in protected activity.7 No court of appeals has ruled

on this issue.8

7
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, 2006 WL 3246904, at *10 (Dep't of Labor ARB May 31, 2006);
Zang, 2008 WL 7835900, at *14; but see Johnson v. Siemens Bldg.
Techs., Inc., No. 08-032, 2011 WL 1247202, at *12 (Dep't of Labor
ARB Mar. 31, 2011) (stating that Klopfenstein should be read as
stating the broader proposition that a private company can be held
liable under § 1514A where such private company would be considered
a public company's agent under common law agency principles, not
only when the private company is the public company's agent for
employment purposes).
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.
8
In Carnero v. Bos. Scientific Corp., 433 F.3d 1 (1st Cir.
2006), we held that § 1514A did not have extraterritorial effect.
In order to reach the question of extraterritoriality, we
"assume[d], for present purposes, but without deciding" that the
plaintiff in that case was a covered employee of the public company
Boston Scientific Corporation (BSC), even though he was employed by
BSC's foreign subsidiaries. Id. at 6. However, we also stated
that "[n]either party . . . contest[ed] that [the plaintiff] was a
covered employee of BSC for purposes of seeking whistleblower
relief under" SOX; instead they focused all of their arguments on
the extraterritorial reach of section 806. Id. The issue of
whether § 1514A(a) covers employees of companies which are under
contract to public companies was not presented to us in Carnero.
The only other reported district court opinion addressing
this question rejected the argument accepted by the district court

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 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

public companies and those who are the employees of those public

companies' officers, employees, contractors, subcontractors, or

agents.

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

here. In Brady v. Calyon Sec. (USA), 406 F. Supp. 2d 307 (S.D.N.Y.
2005), the court concluded that the reference to "any officer,
employee, contractor, subcontractor, or agent of such company" in
§ 1514A(a) "simply lists the various potential actors who are
prohibited from engaging in discrimination on behalf of a covered
employer." Id. (quoting Minkina v. Affiliated Physicians Grp., No.
2005-SOX-00019, 2005 WL 4889024, at *5 (Dep't of Labor ALJ Feb. 22,
2005)) (internal quotation marks omitted).
Two unreported district court cases have also addressed the
question. See Ervin v. Nashville Peace & Justice Ctr., No. 07-
0832, 2008 WL 4449920, at *7 (M.D. Tenn. Sept. 29, 2008); Rao v.
Daimler Chrysler Corp., No. 06-13723, 2007 WL 1424220, at *3 (E.D.
Mich. May 14, 2007).

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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,9 and none of these arguments

resolve the case. That intent does become clearer if one looks

9
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.

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beyond the immediate phrases in subsection (a). Both circuit

precedent and Supreme Court precedent require that we examine the

broader statutory framework, including particularly the nearby

language, Comm'r v. Lundy, 516 U.S. 235, 250 (1996); United States

v. Ozuna-Cabrera, 663 F.3d 496, 499 (1st Cir. 2011), and the title

and caption, Bhd. of R.R. Trainmen v. Balt. & Ohio R.R. Co., 331

U.S. 519, 529 (1947); Berniger v. Meadow Green-Wildcat Corp., 945

F.2d 4, 9 (1st Cir. 1991).

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 retaliate10 against their own employees who engage in

protected activity. Section 1514A(a) then enumerates a list of

representatives of such employers, including those who are

10
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).

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contractors or subcontractors, and they are also barred from

retaliating against employees of the covered public-company

employer who engage in protected activity.

The plaintiffs and their amici argue that, because

§ 1514A(a) forbids retaliation by "any officer, employee,

contractor, subcontractor, or agent" of a public company, that

provision must forbid retaliation against an employee of a

contractor, subcontractor, or agent to a public company. But

plaintiff Lawson and plaintiffs' amici also reject the district

court's limiting principle for their broad reading. As a matter of

logic, the conclusion does not follow from its premise. As a

matter of language, the argument ignores its implication: if an

employee of "any" contractor, subcontractor, or agent is protected,

Congress must, by the same reasoning, have intended to protect the

employee of "any" officer or employee of a public company. This

argument both creates anomalies and provides very broad coverage.

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.11

11
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, 598
F.3d 912 (7th Cir. 2010), cert. denied, 131 S. Ct. 423 (2010),

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 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

Judge Easterbrook observed, in dicta, that "[t]he idea behind" the
provision listing contractors, subcontractors, and agents in
§ 1514A(a) as entities by whom retaliation cannot take place "is
that a covered firm, such as IBM, can't retaliate against
whistleblowers by contracting with an ax-wielding specialist (such
as the character George Clooney played in 'Up in the Air')." Id.
at 915; see also Kalkunte v. DVI Fin. Servs., Inc., No. 2004-SOX-
00056, 2005 WL 4889006 (Dep't of Labor ALJ July 18, 2005), aff'd,
Nos. 05-139, 05-140, 2009 WL 564738 (Dep't of Labor ARB Feb. 27,
2009) (holding that the complaining employee of a public company
could bring a § 1514A action against such company's private
contractor where the contractor managed the public company's
operations and retaliated against the complainant). We merely note
this and have no need to comment further.

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(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, 331 U.S. at 529;

Ozuna-Cabrera, 663 F.3d at 499 n.3; Berniger, 945 F.2d at 9. It is

certainly true that "the title of a statute and the heading of a

section cannot limit the plain meaning of the text." Bhd. of R.R.

Trainmen, 331 U.S. at 528-29. This is not our issue: the caption

of § 1514A(a) does not in any way contradict the plain text, but

sheds light on the meaning of the text. The Supreme Court has been

clear that titles and captions should be used "[f]or interpretive

purposes . . . when they shed light on some ambiguous word or

phrase." Id. at 529; see also Berniger, 945 F.2d at 9 ("It is well

established that a statute's title may aid in construing any

ambiguities in a statute."). The title and the caption each

contain the phrase, "employees of publicly traded companies," which

supports the reading that the use of the term "employees"

underneath refers to "employees of publicly traded companies."

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), 502 U.S. 183 (1991). At issue was

a regulation entitled "Condition against unauthorized employment,"

the text of which referred to "[a] condition barring employment."

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8 C.F.R. § 103.6(a)(2)(ii) (1991). The parties disagreed whether

the word "employment" in the text referred to employment generally

or more narrowly to unauthorized employment. NCIR, 502 U.S. at

189. The Court ruled that "[t]he text's generic reference to

'employment' should be read as a reference to the 'unauthorized

employment' identified in the paragraph's title." Id. We follow

the same reasoning as to § 1514A(a): the "generic reference" to

"employee" in the text "should be read as a reference to" the

"employees of publicly traded companies" identified in that

subsection's caption.12

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

12
Our reading is entirely consistent with the principles of
construction applied and the result reached in United States v.
Ozuna-Cabrera, 663 F.3d 496 (1st Cir. 2011). There we rejected an
argument that the text "without lawful authority" in 18 U.S.C.
§ 1028A(a)(1) was equivalent to "without authorized permission" and
that the defendant's construction was somehow supported by the
statute's title: "Aggravated identity theft." In Ozuna-Cabrera,
the title was entirely consistent with our rejection of the
defendant's more defendant-friendly construction. In this case,
the title and caption are even clearer in support of our reading.
Further, the text we considered in Ozuna-Cabrera provided no
ambiguity which would have warranted resort to the rule of lenity,
which is used only in criminal cases.

-20-
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., 128 S. Ct. 2326, 2336 (2008) (relying on

subchapter's title -- "Postconfirmation matters" -- to undermine

respondent's argument that a statute within that subchapter covered

preconfirmation transfers); Almendarez-Torres v. United States, 523

U.S. 224, 234 (1998) (title of amendment, reinforced by its

legislative history, clarified amendment's meaning). We do not

think there is any ambiguity left. But if there were, other rules

of statutory interpretation would lead us to the same result.

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

in SOX. Other provisions of SOX as of the time of enactment

reinforce our view of the meaning of § 1514A(a) in several

respects. Congress enacted only limited whistleblower protection

in § 1514A(a). Where it wished to enact broader whistleblower

protection elsewhere, it explicitly did so. But it chose

different, more limited language for the coverage provision of

§ 1514A(a) than when it intended expanded coverage.

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

-21-
§ 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 whistleblower provision found in [SOX]."

433 F.3d at 10; see also Glynn v. EDO Corp., 536 F. Supp. 2d 595,

616 (D. Md. 2008) (describing section 1107 as serving to "deter[]

retaliation against whistleblowers"). Section 1107 is entitled

"Retaliation Against Informants" and adds this language to 18

U.S.C. § 1513:

(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, 116 Stat. at 810 (emphasis added). This language

requires neither a public company, nor an employment relationship,

nor a securities law violation to trigger coverage. The scope of

§ 1514A(a) is, by contrast, conspicuously narrow. See Barnhart v.

-22-
Sigmon Coal Co., Inc., 534 U.S. 438, 452 (2002) ("[W]hen 'Congress

includes particular language in one section of a statute but omits

it in another section of the same Act, it is generally presumed

that Congress acts intentionally and purposely in the disparate

inclusion or exclusion.'" (quoting Russello v. United States, 464

U.S. 16, 23 (1983))).

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 VI,

-23-
"Commission Resources and Authority," details the SEC's authority

to censure or bar outside securities professionals from practice

and defines conditions under which a person can be barred from

practicing as a broker, investment adviser, or dealer. See id.

§§ 78d-3, 78o, 80b-3.

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), 116 Stat. at 798.

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., 511 U.S. 164, 176 (1994)

(refusing to impose aiding and abetting liability under § 10(b) of

-24-
the 1934 Act because "Congress knew how to impose aiding and

abetting liability when it chose to do so"); Blue Chip Stamps v.

Manor Drug Stores, 421 U.S. 723, 734 (1975) (limiting Rule 10b-5

cause of action to actual purchasers and sellers of securities in

part because "[w]hen Congress wished to provide a remedy to those

who neither purchase nor sell securities, it had little trouble in

doing so expressly"); SEC v. Tambone, 597 F.3d 436, 444-45 (1st

Cir. 2010) (en banc) (court must honor the differential

draftsmanship of Congress).

Plaintiffs argue that surely Congress meant to cover all

whistleblowers and their 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., 130 S. Ct. 1418, 1422 (2010) ("A separate

entity called an investment adviser creates the mutual fund, which

may have no employees of its own."); Burks v. Lasker, 441 U.S. 471,

-25-
480-81 (1979); S. Rep. No. 91-184, at 4 (1969) (accompanying the

Investment Company Amendments Act of 1970) ("Mutual funds, with

rare exception, are not operated by their own employees. Most

funds are formed, sold, and managed by external organizations,

[called ‘investment advisers,’] that are separately owned and

operated."). And if they have no employees, they are not subject

to § 1514A. This is not anomalous. Congress in the Investment

Company Act deliberately created this separation between investment

companies and their advisers.13 See 15 U.S.C. § 80a-1(b)(2)

(declaring as a policy rationale for the Investment Company Act the

prevention of conflicts of interest between investment companies

and advisers).

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

13
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
.pdf/ (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).

-26-
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 compan[ies] 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)

-27-
("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 employment because the employee (or any person acting

pursuant to a request of the employee)" engaged in protected

whistleblowing activity. 49 U.S.C. § 42121(a) (emphasis added).14

There are several important differences between the

whistleblower provision of AIR 21 and that of SOX, which operate

14
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").

-28-
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

-29-
§ 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.15

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 which explicitly extend coverage

to employees of contractors to the entities regulated by those

15
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, 724 F. Supp. 2d at 159-60.
That proposed limiting principle addresses the scope of protected
activity, not the scope of employee coverage.

-30-
statutes. That Congress was clear in extending coverage to

employees of contractors in those statutes confirms our

understanding of § 1514A(a) as not extending so far.

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 whistleblowing 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

-31-
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., 128 S. Ct. 761, 772 (2008) ("[T]he jurisdiction of

the federal courts is carefully guarded against expansion by

judicial interpretation." (quoting Am. Fire & Cas. Co. v. Finn, 341

U.S. 6, 17 (1951))); Pinter v. Dahl, 486 U.S. 622, 653 (1988)

("The ascertainment of congressional intent with respect to the

scope of liability created by a particular section of the

-32-
Securities Act must rest primarily on the language of that

section."). While many of these cases are in the context of the

implied private right of action under § 10(b) of the 1934 Act, the

rule that we are to "assume that Congress meant what it said" when

it enacts legislation applies throughout the Code, including SOX.

Pinter, 486 U.S. at 653.

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 right of action rather than other mechanisms to

effectuate remedies. Plaintiffs essentially argue that the actual

text must give way in favor of a broader reading to effectuate

those broad remedial purposes. That is not the law. While the

Court has stated that "securities laws combating fraud should be

construed 'not technically and restrictively, but flexibly to

effectuate [their] remedial purposes,'" Herman & MacLean v.

Huddleston, 459 U.S. 375, 386-87 (1983) (quoting SEC v. Capital

Gains Research Bureau, Inc., 375 U.S. 180, 195 (1963)), it has also

admonished that "[t]he broad remedial goals of [a securities law]

are insufficient justification for interpreting a specific

provision 'more broadly than its language and the statutory scheme

reasonably permit.'" Pinter, 486 U.S. at 653 (quoting Touche Ross

& Co. v. Redington, 442 U.S. 560, 578 (1979)). Here, plaintiffs'

reading is broader than the statutory scheme permits. Further, as

-33-
discussed later, plaintiffs' interpretation goes far beyond the

problems Congress wished to remedy.

In Janus Capital Group, Inc. v. First Derivative Traders,

131 S. Ct. 2296 (2011), the Court held that the fact that an

investment adviser to a mutual fund exercised significant influence

over its client fund and prepared SEC prospectuses on behalf of the

fund did not make the adviser subject to liability under SEC Rule

10b-5 for statements made in those prospectuses, despite the

adviser's "uniquely close" relationship with the fund. The Court

stated that the mutual fund (an investment company under the

Investment Company Act of 1940) and the adviser (an investment

adviser under the Investment Adviser Act of 1940) were "legally

separate entities" and that "[a]ny reapportionment of liability in

the securities industry in light of the close relationship between

investment advisers and mutual funds is properly the responsibility

of Congress and not the courts." Id. at 2304.

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.

-34-
 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, 447 U.S. 381, 387 (1980) (The

rule of lenity "applies . . . to interpretations of the substantive

ambit of criminal prohibitions [and] . . . to the penalties they

impose."). Section 1514A is not a criminal provision and imposes

no criminal penalties; instead it provides for compensatory civil

damages. 18 U.S.C. § 1514A(c). In addition to the inapplicability

of the rule of lenity vel non, it would not apply here in any event

because there is simply the lack of "grievous ambiguity" left after

considering the text, structure, history, and purpose needed to

invoke the rule. As the Supreme Court has recognized, "the rule of

lenity only applies if, after considering text, structure, history,

and purpose, there remains a grievous ambiguity or uncertainty in

the statute such that the Court must simply guess as to what

Congress intended."16 Barber v. Thomas, 130 S. Ct. 2499, 2508-09

(2010) (citation omitted) (quoting Muscarello v. United States, 524

16
Furthermore, interpretative principles applied to
immigration cases have no application here. Cf. INS v. St. Cyr,
533 U.S. 289, 320 (2001) (reciting "the longstanding principle of
construing any lingering ambiguities in deportation statutes in
favor of the alien" (quoting INS v. Cardoza-Fonseca, 480 U.S. 421,
449 (1987)) (internal quotation marks omitted)); INS v. Errico,
385 U.S. 214, 225 (1966) (stating that the Court resolved doubt in
the interpretation of an immigration statute in favor of the alien
"because deportation is a drastic measure and at times the
equivalent of banishment or exile" (quoting Fong Haw Tan v. Phelan,
333 U.S. 6, 10 (1948))).

-35-
U.S. 125, 139 (1998), and Bifulco, 447 U.S. at 387) (internal

quotation marks omitted) (quoted in United States v. Gerhard, 615

F.3d 7, 22 (1st Cir. 2010)).

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, 130 S. Ct. 2278, 2287 & n.9 (2010) (using legislative

history to confirm the Court's sense of a statute's plain meaning);

Phillips v. Pembroke Real Estate, Inc. 459 F.3d 128, 143 n.12 (1st

Cir. 2006).

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.

-36-
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;17 see also 149 Cong.

17
In the same remarks, Senator Leahy stated more broadly that
"[o]ur laws need to encourage and protect those who report
fraudulent activity that damages investors in publicly traded
companies." 148 Cong. Rec. S1788 (daily ed. Mar. 12, 2002).
Plaintiffs contend that this statement supports a broad reading of

-37-
Rec. S1725 (daily ed. Jan. 29, 2003) (statement of Sen. Leahy)

(post-enactment) (§ 1514A "was intentionally written to sweep

broadly, protecting any employee of a publicly traded company who

took such reasonable action to try to protect investors and the

market").

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.

the statute: if the point of § 1514A is to protect investors in
publicly traded companies, then it makes sense that the statute
would protect whistleblowers who report fraud at such companies,
even if a whistleblower is the employee of such a company's
contractor or agent. We disagree that Congress meant to cast so
broad a net.

-38-
 Congress's concern about Arthur Andersen was addressed by

special provisions as to accountants. See SOX tit. I, 116 Stat. at

750-71 ("Public Company Accounting Oversight Board"); SOX tit. II,

116 Stat. at 771-75 ("Auditor Independence"). The committee's

concerns regarding the integrity and independence of accountants

and auditors are addressed in SOX by virtue of these provisions,

and not by an expansive definition of "employee" in § 1514A(a).

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, 456 U.S. 512

(1982), "[a]lthough postenactment developments cannot be accorded

'the weight of contemporary legislative history, we would be remiss

if we ignored these authoritative expressions concerning the scope

and purpose of'" previous enactments. Id. at 535 (quoting Cannon

v. Univ. of Chi., 441 U.S. 677, 686 n.7 (1979)); see also Goncalves

v. Reno, 144 F.3d 110, 133 (1st Cir. 1998) ("[S]ubsequent

legislative developments, although never determinative in

themselves, can be 'significant' clues to congressional intent."

(quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 430 (1987))).

We turn to the failed effort to expand the term

"employee" in § 1514A(a).18 In 2004, Senator Fitzgerald introduced

18
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, 535 U.S. 274, 287

-39-
in the Senate a bill entitled the Mutual Fund Reform Act of 2004

(MFRA). S. 2059, 108th Cong. (2004). Section 116(b) of MFRA would

have amended § 1514A(a) to explicitly cover employees of investment

advisers to mutual funds. As amended by MFRA, § 1514A(a) would

have read:

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 1940 (15
U.S.C. 80a-2(a)) of an investment company
which is registered under section 8 of the
Investment Company Act of 1940, 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–

(2002) (quoting Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S.
633, 650 (1990)). However, the Court has used failed attempts to
amend statutory language as aids to understanding Congress's
intent. See, e.g., FDA v. Brown & Williamson Tobacco Corp., 529
U.S. 120, 144 (2000) ("Congress considered and rejected bills that
would have granted the FDA" jurisdiction to regulate tobacco.); N.
Haven Bd. of Educ. v. Bell, 456 U.S. 512, 534 (1982) ("Congress has
refused to pass bills that would have amended § 901 to limit its
coverage of employment discrimination.").

-40-
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.19

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).20 Cf. Seatrain Shipbuilding

Corp. v. Shell Oil Co., 444 U.S. 572, 596 (1980) (considering

legislative history discussing why Congress chose to amend a

certain provision in one way but not another, and stating "while

the views of subsequent Congresses cannot override the unmistakable

intent of the enacting one, such views are entitled to significant

weight" (citations omitted)). The Supreme Court has stated that

"[c]ongressional inaction lacks persuasive significance because

several equally tenable inferences may be drawn from such inaction,

19
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.
20
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.").

-41-
including the inference that the existing legislation already

incorporated the offered change." Craft, 535 U.S. at 287

(alteration in original) (quoting Cent. Bank of Denver, N.A., 511

U.S. at 187) (internal quotation marks omitted). At most, this is

a clue, but far from conclusive.

Later, Congress did amend § 1514A(a). In 2010 the Dodd-

Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank)

amended § 1514A by explicitly extending whistleblower coverage to

employees of public companies' subsidiaries and employees of

statistical rating organizations. Section 1514A(a) as amended by

Dodd-Frank reads:

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)) 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).

-42-
 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.21

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

extend[ing] 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

21
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.

-43-
 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.

III.

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., 467 U.S. 837, 843 (1984). Because the

term "employee" in § 1514A(a) is not ambiguous, we would not defer

to an administrative agency's contrary determination, even had

Congress delegated authority to the agency. See Nat'l Ass'n of

Home Builders v. Defenders of Wildlife, 127 S. Ct. 2518, 2534

(2007) ("[D]eference is appropriate only where 'Congress has not

directly addressed the precise question at issue' through the

statutory text." (quoting Chevron, 467 U.S. at 843); Saysana v.

Gillen, 590 F.3d 7, 16 (1st Cir. 2009) (because statutory language

-44-
before the court "is unambiguous, there is nothing for the agency

to interpret -- no gap for it to fill -- and there is no

justification for resorting to agency interpretation to address an

ambiguity"); Succar v. Ashcroft, 394 F.3d 8, 22-24 (1st Cir. 2005)

(declining to defer to agency's interpretation of statute where

statute's text is clear).

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.22 OSHA has promulgated regulations regarding

§ 1514A in its capacity as the body with delegated authority to

22
We accepted in dicta in Day v. Staples, Inc., 555 F.3d 42,
54 & n.7 (1st Cir. 2009), that certain DOL regulations concerned
with a two-part test for what constituted "reasonable belief" under
SOX were entitled to Chevron deference. That test was also
contained in the relevant case law. Day did not concern the issue
here, nor the regulation relied on here. That statement in Day was
not necessary to the holding in that case but was rather dicta, nor
was the holding in the case concerned with the precise regulations
at issue here. Day is easily distinguishable, and that dicta in
Day is not binding on this panel. Kosereis v. Rhode Island, 331
F.3d 207, 213 (1st Cir. 2003).
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).

-45-
enforce its provisions.23 These regulations purport to "implement[]

procedures under section 806" of SOX, 29 C.F.R. § 1980.100(a)

(2009), and they construe § 1514A(a)'s coverage provisions in

plaintiffs' favor, see id. § 1980.101-.102.24

These regulations, id., are not entitled to Chevron

deference, as the Secretary admits. See Chevron, 467 U.S. at 842-

43. In addition, in promulgating the rules, the DOL made it clear

the rules were not interpretations of the Act. In the notice of

23
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.
24
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."
29 C.F.R. § 1980.102(a) (2009). The regulations define "company
representative" to mean "any officer, employee, contractor,
subcontractor, or agent of a company," id. § 1980.101, and
"employee" to mean "an individual presently or formerly working for
a company or company representative, an individual applying to work
for a company or company representative, or an individual whose
employment could be affected by a company or company
representative," id.

-46-
final rulemaking promulgating these regulations, OSHA repeatedly

states that "[t]hese rules are procedural in nature and are not

intended to provide interpretations of the Act." 69 Fed. Reg.

52,104, 52,105 (Aug. 24, 2004). In this case, the DOL has

explicitly stated that "[t]he Department of Labor does not have

substantive rulemaking authority with respect to section 1514A" and

thus the Secretary of Labor does not seek Chevron deference "for

her procedural regulations."

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., 323 U.S. 134, 140

(1944). Congress has made the choice and not given the agency a

role. Further, "the Skidmore standard entails . . . a

sliding-scale approach under which the degree of deference accorded

to an agency interpretation hinges on a variety of factors, such as

'the thoroughness evident in [the agency's] consideration, the

validity of its reasoning, [and the] consistency [of its

interpretation] with earlier and later pronouncements.'" Doe v.

Leavitt, 552 F.3d 75, 81 (1st Cir. 2009) (alterations in original)

(quoting Skidmore, 323 U.S. at 140). Moreover, as the Supreme

Court has stated, an agency's statutory "interpretation is

'entitled to respect' only to the extent it has the 'power to

persuade.'" Gonzales v. Oregon, 546 U.S. 243, 256 (2006) (quoting

-47-
Skidmore, 323 U.S. at 140). The notice of final rulemaking here

contains no reasoning to support OSHA's construction of the

coverage provisions of § 1514A(a), saying only that "OSHA believes

that [its regulations] accurately reflect the statutory language."

69 Fed. Reg. at 52,105-06. OSHA's reading, which it states is not

a statutory interpretation, lacks the "power to persuade." We also

note that the DOL's amicus brief does not argue that these

particular OSHA regulations should be accorded Skidmore deference,

nor does the SEC.

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, 536 F.3d

269, 276 n.2 (4th Cir. 2008) (according deference to a decision of

the ARB interpreting § 1514A because the statute expressly

delegated to the Secretary of Labor authority to enforce the

statute by formal adjudication and the Secretary delegated that

power to the ARB). Second, there is in any event no ARB decision

on point,25 and the ALJ in the Zang case, at the level below the

25
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 could be owed, the ARB stated that SOX's
"legislative history demonstrates that Congress intended to enact
robust whistleblower protections for more than employees of
publicly traded companies." 2011 WL 1247202, at *12.

-48-
ARB, reached a conclusion consistent with ours. See Zang, 2008 WL

7835900.

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, 535 U.S. 137, 143-44 (2002); FLRA v. U.S.

Dep't of the Navy, 941 F.2d 49, 55 (1st Cir. 1991). The arguments

advanced by the DOL, which does have authority to enforce § 1514A,

see 18 U.S.C. §§ 1514A(b)(1), 1514A(b)(2)(A); 49 U.S.C. § 42121(b),

mirror the textual arguments of the plaintiffs and are not based on

the DOL's "specialized experience." Skidmore, 323 U.S. at 139. In

addition, we view the text of § 1514A(a) as clear.

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.

-- Dissenting Opinion Follows –-

-49-
 THOMPSON, Circuit Judge, 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. § 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 any

officer, employee, contractor, subcontractor, or agent of such

company, may discharge, demote, suspend, threaten, harass, or in

-50-
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 that the plaintiffs'

employers discharged the plaintiffs — their employees. In other

words, in each case a "contractor . . . of such company . . .

discharge[d] . . . an employee." Id. One might think our inquiry

would end here: Sarbanes-Oxley's whistleblower-protection provision

by its terms applies. According to the majority, however, one

would be incorrect.

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, 663 F.3d 496 (1st Cir. 2011). In Ozuna-Cabrera, we held

that application of the "Aggravated Identity Theft" statute is not

restricted to situations involving traditional theft. Id. at 501.

This is how our analysis went:

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.

-51-
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, 534 F.3d 51, 59 (1st Cir. 2008)). Fourth and finally, we

looked at legislative history and noted that implicitly restrictive

references to "theft" could not limit the scope of broad statutory

language. Id. at 500. More specifically, nothing in the

legislative history explicitly suggested "that Congress intended to

so narrowly restrict the statute's reach." Id. Instead, the

legislative history "demonstrate[d] that Congress intended [the

statute] to address a wide array of" conduct. Id. Applying this

-52-
same analysis to the present case produces a very different result

than the one the majority reach.

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.26

As I have already pointed out, boiling the statute down to its

relevant syntactic elements, it provides that "no . . . contractor

. . . may discharge . . . an employee." 18 U.S.C. § 1514A(a). The

statute does not limit its coverage to "an employee of a publicly

held company" — it just refers broadly to "an employee."

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.,

758 F.2d 741, 751-52 (1st Cir. 1985) (providing that "no

construction should be adopted which would render statutory words

or phrases meaningless, redundant or superfluous"). The majority

suggest that the word "contractor" might be intended only to refer

to so-called "ax-wielding specialists" that public companies bring

26
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, No. 10-507, 2012 WL 75045, at *8 (U.S. Jan. 11, 2012).

-53-
in to lay off employees. Maj. Op. 17 n.11; see also Fleszar v.

U.S. Dept. of Labor, 598 F.3d 912, 915 (7th Cir. 2010) (employing

the term "ax-wielding specialist" and providing the example of "the

character George Clooney played in 'Up in the Air'"). If that is

indeed the case, it is a mystery why Congress did not say so

specifically. But more importantly for present purposes, when ax-

wielding specialists actually fire public-company employees they

are acting as agents (rather than mere contractors) of the public

company. And § 806 specifically lists agents as covered entities,

just like contractors. The word "contractor," therefore, must be

doing something else. In the end, then, not only do the majority

impose extratextual limitations on § 806, but they also effectively

evict the word "contractor" from the statute.27 This is simply

wrong. See Ven-Fuel, 758 F.2d at 751-52.

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. 21-22 (noting

that Congress explicitly "enact[ed] broader whistleblower

27
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. 16. My point, which remains unrebutted, is that
their interpretation renders superfluous the word "contractor."

-54-
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.28 Limone v. United States, 579 F.3d 79, 105 (1st Cir.

2009); see also Pac. Operators, 2012 WL 75045, at *6 ("Congress'

decision to specify, in scrupulous detail, exactly where the other

subsections of § 1333 apply, but to include no similar restriction

. . . in § 1333(b), convinces us that Congress did not intend" to

so limit § 1333(b).).

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

28
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 whistleblower-
protection statute targeted at the wronged.

-55-
section 12 of the Securities Exchange Act of 1934 (15 U.S.C.

§ 78l)" or "required to file reports under section 15(d) of the

Securities Exchange Act of 1934 (15 U.S.C. § 78o(d))." The section

goes on to list a number of other covered entities, including

contractors. It also uses the modifier "of such companies" at one

point to refer to, e.g., contractors, but notably not to refer to

employees. In fact, the section does not limit the word

"employees" in any way. Again, we should honor Congress's choice

to employ broad language. Limone, 579 F.3d at 105.

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

"[e]lsewhere in SOX, Congress did specifically address investment

companies and investment advisers." Maj. Op. 27. 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.29 The majority's second example — 15 U.S.C.

§ 80b-3 — deals with the "Registration of investment advisers" and

says nothing of whistleblowers. Maj. Op. 27. The existence of a

29
Indeed, as the majority note, Congress "made it explicit
when it intended coverage and when it did not." Maj. Op. 27
(emphasis added).

-56-
section tailored to investment advisers hardly exempts such

entities from Sarbanes-Oxley's broader provisions — like § 806.

After all, Congress knew how to exempt investment entities when it

wanted to do so. See 15 U.S.C. § 7263.

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,

663 F.3d at 499 n.3. I have already explained how nothing in

either the text or the context of § 806 actually supports the

limitation conjured by the majority. A few words in a title are

not sufficient to change that rock-solid fact. That insufficiency

is especially glaring where, as here, the title does not purport to

apply any explicit limitations (e.g., "whistleblower protection for

employees of pubic companies only") but merely describes a specific

and common application of a more generally applicable statute.30

Cf. Ozuna-Cabrera, 663 F.3d at 500 ("aggravated identity theft" may

commonly apply to "criminals who actually steal other people's

identities," but this is only one application of a broad statute).

Under Ozuna-Cabrera and other circuit precedent, see, e.g., Mass.

Ass'n of Health Maint. Orgs. v. Ruthardt, 194 F.3d 176, 180 (1st

Cir. 1999), the title gets the majority nowhere.

30
I repeat: the title contains no "explicit guides to the
limits" on § 806. Maj. Op. 18.

-57-
 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 prevent and punish

corporate and criminal fraud, protect the victims of such fraud,

preserve evidence of such fraud, and hold wrongdoers accountable

for their actions." Id. Indeed, this very court has endorsed a

broad understanding of the Act's purpose, noting that "[t]he

§ 1514A whistleblower provision thus serves to 'encourage and

protect [employees] who report fraudulent activity that can damage

innocent investors in publicly traded companies'" and that "[i]t

also aimed 'to provide federal protection to private corporate

whistleblowers.'" Day v. Staples, Inc., 555 F.3d 42, 52 (1st Cir.

2009) (alteration in original) (quoting S. Rep. No. 107-146, at *17

(2002), and Carnero v. Bos. Scientific Corp., 433 F.3d 1, 11 (1st

-58-
Cir. 2006)). Again, extending whistleblower protection to

employees of contractors fits both with the specific

whistleblower-protection purpose of Sarbanes-Oxley and with its

broader anti-fraud purpose.

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. 37-38. Such protection is

a wholly uncontroversial and undisputed effect of § 806.31 The

question is whether protection is limited to employees of public

entities only. And none of the majority's sources — indeed, no

source at all — expresses any intent to restrict § 806 so

narrowly.32 Cf. Ozuna-Cabrera, 663 F.3d at 500 ("Without question,

31
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. 39. In addition to being
uncontroversial and undisputed, however, Sarbanes-Oxley's special
provisions as to accountants are irrelevant here.
32
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. 44 (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.

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Congress harbored concerns over criminals who actually steal other

people's identities. There is nothing to suggest, however, that

Congress intended to so narrowly restrict the statute's reach.").

It is strange that the same circumstance — lack of congressional

intent to limit broad statutory language — could cut so differently

in two different cases.

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 rating

organization . . . may discharge . . . an employee" does apply to

employees of ratings companies. Maj. Op. 42 (noting that Dodd-

Frank "explicitly extend[ed] whistleblower coverage to . . .

employees of statistical rating organizations"). In these phrases,

"contractor" and "rating organization" are syntactic equivalents

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and should therefore be given equal effect. The statute plainly

protects both employees of contractors and employees of rating

companies.

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, 434 U.S. 575,

580 (1978) ("Congress is presumed to be aware of an administrative

or judicial interpretation of a statute and to adopt that

interpretation when it re-enacts a statute without change."). At

the time of Dodd-Frank, the Department of Labor (which is

statutorily tasked with administratively adjudicating § 806

whistleblower claims, see 18 U.S.C. § 1514A(b)(1)) had issued

notice-and-comment regulations explicitly providing that § 806

applied to employees of contractors of public companies. 29 C.F.R.

§ 1980.101 (2009) (defining "employee" as "an individual presently

or formerly working for a company or company representative" and

"company representative" as, e.g., "any . . . contractor . . . of

a company"). In enacting Dodd-Frank in 2010, then, Congress had a

miles-wide opening to nip Labor's regulation in the bud if it had

wished to do so. It did not. To the (very limited) extent

subsequent legislative history tells us anything here, it tells us

that the majority are incorrect.

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 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.33

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

33
The majority's result seems to be driven by § 806's "very
broad coverage." Maj. Op. 17. But very broad coverage was the
precise goal of § 806. See Maj. Op. 37 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. 17. I, for one, can discern
no "anomalies" in a determination that § 806 protects
whistleblowers 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 whistleblower as a matter of
either law or policy.

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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 any

other manner discriminate against an employee." Just as in § 806,

AIR does not specify whether it protects employees of carriers only

or whether it protects employees of contractors and subcontractors

as well. The majority conclude that AIR protects employees of

carriers, contractors, and subcontractors, but that § 806 protects

only employees of public companies, primarily because — in the

majority's view, notwithstanding the broad language passed by the

legislative branch and the considered interpretation of the

executive branch — § 806 would be excessively broad.34 Maj. Op. 28-

29. This is judicial overreaching of the highest order.35

34
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. 31-32 (discussing the Energy Reorganization Act, 42 U.S.C.
§ 5851(a)(1), and the Pipeline Safety Improvement Act, 49 U.S.C.
§ 60129(a)).
35
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

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 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., 333 F.3d 299, 307 (1st Cir. 2003)

(citing Tcherepnin v. Knight, 389 U.S. 332, 336 (1967)). It should

be achingly clear at this point that § 806 is remedial in nature;

specifically, it aims to remedy the evil of companies' firing

employees for reporting putative securities fraud. Where the

statutory language supports a broad reading that comports with that

remedial purpose, precedent calls for courts to implement that

broad reading. See Dudley, 333 F.3d at 307. The majority

inexplicably fail to heed this call.

Second, at the opposite end of the interpretative

spectrum is the so-called rule of lenity, an "ancient rule of

Congress to change them. We should not legislate for them.'" Pac.
Operators, 2012 WL 75045, at *9 (quoting Herb's Welding, Inc. v.
Gray, 470 U.S. 414, 427 (1985)).

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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 663 F.3d at 498-

99. Now, in a context where we are supposed to default to breadth

and reject narrowness, the majority nevertheless impose analogous

extratextual limitations. This is precisely backwards.

In fact, in rejecting a broad reading of § 806 and

imposing a narrow one, the majority rely in significant part on

cases where (unlike here) narrow interpretations were absolutely

appropriate under the rule of lenity. For example, in I.N.S. v.

Nat'l Ctr. for Immigrants' Rights, Inc. (NCIR), 502 U.S. 183

(1991), the Supreme Court narrowed the scope of the word

"employment" as used in a statute imposing restrictive bond

conditions on aliens embroiled in removal proceedings.36 In other

words, by narrowing the types of employment that immigrants could

not undertake while out on bond, the Court benefitted them and

thereby honored the rule of lenity. NCIR does not by any means

36
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, 533 U.S. 289, 320 (2001) (relying on "'the
longstanding principle of construing any lingering ambiguities in
deportation statutes in favor of the alien'" (quoting I.N.S. v.
Cardoza-Fonseca, 480 U.S. 421, 449 (1987))).

-65-
suggest that a restrictive interpretation is appropriate to strip

intentionally broad legal protections from whistleblowers.37

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, 131 S. Ct. 2296, 2303 (2011) (holding that a

mutual fund adviser may not be found liable for a mutual fund's

violation of SEC Rule 10b-5, in part because of "the narrow scope

that [courts] must give the implied private right of action");

Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 128

S. Ct. 761, 772 (2008) (noting that courts should limit the scope

of implied rights of action because judicial creation of such

remedies "runs contrary to the established principle that '[t]he

jurisdiction of the federal courts is guarded against expansion by

judicial interpretation'" (quoting Cannon v. Univ. of Chi., 441

U.S. 677, 746-47 (1979) (Powell, J., dissenting))); Cent. Bank of

Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S.

37
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. 19-20
(providing that the majority "follow the same reasoning" as NCIR),
with Maj. Op. 35 (providing that "the rule of lenity has no place
in our interpretation of § 1514A(a)").

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164, 176 (1994) (holding that the implied right of action under SEC

Rule 10b-5 does not extend to aiders and abetters because "Congress

knew how to impose aiding and abetting liability when it chose to

do so"); Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 734

(1975) (limiting the availability of the implied right of action

under Rule 10b-5 to actual purchasers and sellers of securities, in

part because "[w]hen Congress wished to provide a remedy to those

who neither purchase nor sell securities, it had little trouble

doing so expressly"). Here, we are not faced with an implied right

of action that should be applied narrowly; instead, we are dealing

with a statute that expressly creates a broad right of action for

employee-whistleblowers who suffer retaliation at their employers'

hands. By rejecting Congress's intentional breadth, the majority

undermine the legislative process in precisely the same way that

the Supreme Court has warned against time and time again in the

context of implied rights of action. That they do so by

restricting a broad statute rather than expanding a narrow statute

is beside the point: they are still usurping Congress's lawmaking

role in our system of government.

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. 14 — that the

statute is "not ambiguous" and even "clear" in imposing a

limitation on the word "employee" that appears nowhere in the

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statute's text. Id. at 44, 49. This peculiar determination38

appears to be nothing more than a mechanism for rejecting the views

of multiple federal agencies39 that come into daily contact with the

Sarbanes-Oxley Act and its whistleblower provision, and for

downplaying this court's earlier determination that agency views

are entitled to deference. In fact, the clearest thing about the

statute is its breadth, as the Department of Labor's regulations

confirm.

As I've mentioned above, the Department of Labor has

adjudicatory authority over Sarbanes-Oxley whistleblower

complaints.40 18 U.S.C. § 1514A(b)(1). To exercise that authority,

the Department of Labor has promulgated regulations regarding

Sarbanes-Oxley. 29 C.F.R. § 1980-100 et seq. The regulations

specifically provide that Sarbanes-Oxley's whistleblower protection

extends to employees of contractors of public companies. Id.

38
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, 444 F.3d 98, 108 (1st Cir. 2006) (noting
that "we . . . will only look behind the plain language to the
legislative history if we find the statute ambiguous" (internal
quotation marks omitted)).
39
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.
40
Congress has not given Labor substantive rule-making
authority, but this does not matter for reasons I will discuss
shortly.

-68-
§ 1980.101. On this point, Labor found the statute as clear as I

do: the regulations proclaim that they are non-interpretative, 69

Fed. Reg. 52104, 52105 (Aug. 24, 2004), so Labor must have thought

the statute simply means what it says: "[n]o . . . contractor . . .

of such company[] may discharge . . . an employee" for reporting

fraud. 18 U.S.C. § 1514A(a). And we have previously held that the

regulations are entitled to Chevron deference, Day, 555 F.3d at 54

& n.7, meaning that we should honor Labor's read of the statute

unless it is arbitrary and capricious or contrary to law. Chevron

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844

(1984).

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 whistleblower 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. 45 n.22.

Here is what we said in Day: "Both the DOL regulations,

which are entitled to Chevron deference, and the caselaw establish

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that the term 'reasonable belief' has both a subjective and

objective component. We agree." Day, 555 F.3d at 54. We then

went on to explain why the regulations were due Chevron deference,

noting among other things that "Congress explicitly delegated to

the Secretary of Labor authority to enforce § 1514A by formal

adjudication." Id. at 54 n.7. This is not the stuff of dicta. We

did not merely "accept . . . that certain DOL regulations . . .

were entitled to Chevron deference," Maj. Op. 45 n.22 — we stated

affirmatively that they were, explained our reasoning on the point,

and relied on the conclusion in reaching our result. And our broad

statement may not have been "concerned with the precise regulations

at issue here," id., but it did not purport to involve precise

regulations; instead, it spoke sweepingly of Labor's regulations

regarding § 1514A. If Day remains good law then it controls here

and we owe deference to Labor's regulations.

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., 323 U.S. 134, 140 (1944), the

Supreme Court held that considered agency views — even informal

ones — should provide guidance to the courts to the extent those

views have the "power to persuade." We have applied the Skidmore

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rule to agencies' views in cases "'where statutory circumstances

indicate no [congressional] intent to delegate general authority to

make rules with force of law.'" Navarro v. Pfizer Corp., 261 F.3d

90, 99 (1st Cir. 2001) (quoting United States v. Mead Corp., 533

U.S. 218, 237 (2001)). Here we have such a case. Even though

Labor lacks statutory authority to issue substantive rules

regarding § 806, and even though Labor has labeled its regulations

non-interpretative, under Skidmore we still cannot just throw its

considered views out the window.

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. 44.

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]

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consideration, the validity of its reasoning, [and] its consistency

with earlier and later pronouncements." Skidmore, 323 U.S. at 140.

First, contrary to the majority's determination that Labor provided

"no reasoning," Maj. Op. 48, Labor spent a paragraph explaining

that the language of § 806, taken literally, extends protection to

employees of contractors of public companies. See 69 Fed. Reg. at

52,105-06. The majority never convincingly overcome the agency's

simple application of basic grammar to the statute,41 and so can

only pretend it isn't there.

Continuing with the other Skidmore factors, the agency's

reasoning is valid because the statute's plain language does extend

coverage to employees of contractors (as I have explained above).

And as for consistency, for as long as the regulations have existed

they have consistently extended protection to employees of

contractors of public companies. Compare 29 C.F.R. § 1980.101

(2003), with 29 C.F.R. § 1980.101 (2011), as amended by 76 Fed.

Reg. 68,084 (Nov. 3, 2011). The majority cannot claim the same

consistency in this court's jurisprudence. Compare Day, 555 F.3d

at 52, 54 & n.7 (noting that § 806 aims to "prohibit[] employers

41
In fact, the majority implicitly acknowledge the validity
of Labor's grammatical reading earlier in their opinion, when they
say it merits "little discussion" that the statute "may be read
differently as to the scope of the protected 'employees' as a
matter of grammar." Maj. Op. 15. If Labor's paragraph applying
the basic rules of language to the statute constitutes "no
reasoning," then one wonders how to characterize the majority's
"little discussion."

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from retaliating against employees" and "to encourage and protect

employees who report fraudulent activity," and holding that the

Labor regulations "are entitled to Chevron deference" (internal

quotation marks and brackets omitted)), with Maj. Op. 45 n.22.

Because all three Skidmore factors weigh in Labor's favor, we owe

deference to the Department of Labor's regulations. And that means

§ 806 extends whistleblower protection to employees of contractors

of public companies.

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 court42 is yes. For these reasons, I dissent.

42
"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?"

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