Lawson v. FMR LLC
571 U.S. ___ (2014)

Annotate this Case

SUPREME COURT OF THE UNITED STATES

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No. 12–3

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JACKIE HOSANG LAWSON and JONATHAN M. ZANG, PETITIONERS v. FMR LLC et al.

on writ of certiorari to the united states court of appeals for the first circuit

[March 4, 2014]

     Justice Sotomayor, with whom Justice Kennedy and Justice Alito join, dissenting.

     Section 806 of the Sarbanes-Oxley Act of 2002, 116Stat. 802, forbids any public company,[1] or any “officer, em-ployee, contractor, subcontractor, or agent of such company,” to retaliate against “an employee” who reports a potential fraud. 18 U. S. C. §1514A(a). The Court recognizes that the core purpose of the Act is to “safeguard investors in public companies.” Ante, at 1. And the Court points out that Congress entitled the whistleblower provision, “Protection for Employees of Publicly Traded Companies Who Provide Evidence of Fraud.” §806, 116Stat. 802. Despite these clear markers of intent, the Court does not construe §1514A to apply only to public company employees who blow the whistle on fraud relating to their public company employers. The Court instead holds that the law encompasses any household employee of the millions of people who work for a public company and any employee of the hundreds of thousands of private businesses that contract

to perform work for a public company.

     The Court’s interpretation gives §1514A a stunning reach. As interpreted today, the Sarbanes-Oxley Act au-thorizes a babysitter to bring a federal case against his employer—a parent who happens to work at the local Walmart (a public company)—if the parent stops employing the babysitter after he expresses concern that the parent’s teenage son may have participated in an Internet purchase fraud. And it opens the door to a cause of action against a small business that contracts to clean the local Starbucks (a public company) if an employee is demoted after reporting that another nonpublic company client has mailed the cleaning company a fraudulent invoice.

     Congress was of course free to create this kind of sweeping regime that subjects a multitude of individuals and private businesses to litigation over fraud reports that have no connection to, or impact on, the interests of pub-lic company shareholders. But because nothing in the text, context, or purpose of the Sarbanes-Oxley Act suggests that Congress actually wanted to do so, I respectfully dissent.

I

     Although the majority correctly starts its analysis with the statutory text, it fails to recognize that §1514A is deeply ambiguous. Three indicators of Congress’ intent clearly resolve this ambiguity in favor of a narrower interpretation of §1514A: the statute’s headings, the statutory context, and the absurd results that follow from the majority’s interpretation.

A

     The majority begins its textual analysis by declaring that the “ ‘relevant syntactic elements’ ” of §1514A are that “ ‘ “no . . . contractor . . . may discharge . . . an employee.” ’ ” Ante, at 9. After “ ‘boiling . . . down’ ” the text to this formulation, the majority concludes that the “ordinary meaning of ‘an employee’ ” is obviously “the contractor’s own employee.” Ibid.

     If that were what the statute said, the majority’s decision would undoubtedly be correct. But §1514A(a) actu-ally provides that “[n]o [public] company . . . 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.” The provision thus does not speak only (or even primarily) to “contractors.” It speaks to public companies, and then includes a list of five types of representatives that companies hire to carry out their business: “officer[s], employee[s], contractor[s], subcontractor[s], [and] agent[s].”

     Read in full, then, the statute is ambiguous. The majority is correct that it may be read broadly, to create a cause of action both for employees of public companies and for employees of the enumerated public company representatives. But the statute can also be read more narrowly, to prohibit the public company and the listed representatives—all of whom act on the company’s behalf—from retaliating against just the public company’s employees.

     The narrower reading of the text makes particular sense when one considers the other terms in the list of com-pany representatives. The majority acknowledges that, as a matter of “gramma[r],” the scope of protected employees must be consistent with respect to all five types of com-pany representatives listed in §1514A(a). Ante, at 15. Yet the Government and petitioners readily concede that §1514A is meant to bar two of the enumerated repre-sentatives—“officer[s]” and “employee[s]”—from retaliating against other employees of the public company, as opposed to their own babysitters and housekeepers. See Brief for United States as Amicus Curiae 16 (§1514A “impose[s] personal liability on corporate officers and employees who are involved in retaliation against other employees of their employer”); Brief for Petitioners 12 (similar). The Department of Labor’s Administrative Review Board (ARB) agrees. Spinner v. David Landau & Assoc., LLC, No. 10–111 etc., ALJ No. 2010–SOX–029, p. 8 (May 31, 2012). And if §1514A prohibits an “officer” or “employee” of a public company from retaliating against only the public company’s own employees, then as the majority points out, the same should be true “grammatically” of contractors, subcontractors, and agents as well, ante, at 15.[2]

     The majority responds by suggesting that the narrower interpretation could have been clearer if Congress had added the phrase “ ‘of a public company’ after ‘an em-ployee.’ ” Ante, at 9–10. Fair enough. But Congress could more clearly have dictated the majority’s construction of the statute, too: It could have specified that public companies and their officers, employees, contractors, subcontractors, and agents may not retaliate against “their own employees.” In any case, that Congress could have spoken with greater specificity in both directions only underscores that the words Congress actually chose are ambiguous. To resolve this ambiguity, we must rely on other markers of intent.

B

     We have long held that where the text is ambiguous, a statute’s titles can offer “a useful aid in resolving [the]

ambiguity.” FTC v. Mandel Brothers, Inc., 359 U. S. 385 –389 (1959). Here, two headings strongly suggest that Congress intended §1514A to apply only to employees of public companies. First, the title of §806—the section of the Sarbanes-Oxley Act that enacted §1514A—speaks clearly to the scope of employees protected by the provision: “Protection for Employees of Publicly Traded Companies Who Provide Evidence of Fraud.” 116Stat. 802. Second, the heading of §1514A(a) reinforces that the provision provides “[w]histleblower protection for employees of publicly traded companies.”

     The majority suggests that in covering “employees of publicly traded companies,” the headings may be imprecise. Ante, at 16. Section 1514A(a) technically applies to the employees of two types of companies: those “with a class of securities registered under section 12 of the Securities Exchange Act of 1934,” and those that are “required to file reports under section 15(d) of the” same Act. Both types of companies are “public” in that they are publicly owned. See ante, at 7–8. The difference is that shares of the §12 companies are listed and traded on a national securities exchange; §15(d) companies, by contrast, exchange their securities directly with the public. The headings may therefore be inexact in the sense that the phrase “publicly traded” is commonly associated with companies whose securities are traded on national exchanges. Congress, however, had good reason to use the phrase to refer to §15(d) companies as well: Section 15(d) companies are traded publicly, too. For instance, as the majority recognizes, ante, at 20, a mutual fund is one paradigmatic example of a §15(d) company. And mutual funds, like other §15(d) companies, are both publicly owned and widely traded; the trades just take place typically between the fund and its investors directly.

     In any case, even if referring to employees of §12 and §15(d) companies together as “employees of publicly traded companies” may be slightly imprecise, the majority’s competing interpretation of §1514A would stretch the stat-ute’s headings far past the point of recognition. As the majority understands the law, Congress used the term “employees of publicly traded companies” as shorthand not just for (1) employees of §12 and §15(d) companies, but also for (2) household employees of any individual who works for a §12 or §15(d) company; (3) employees of any private company that contracts with a §12 or §15(d) company; (4) employees of any private company that, even ifit does not contract with a public company, subcontracts with a private company that does; and (5) employees of any agent of a §12 or §15(d) company. If Congress had wanted to enact such a far-reaching provision, it would have called it something other than “[w]histleblower protection for employees of publicly traded companies.”

     Recognizing that Congress chose headings that are inconsistent with its interpretation, the majority notes that the Court has “placed less weight on captions.” Ante, at 16. But where the captions favor one interpretation so decisively, their significance should not be dismissed so quickly. As we have explained, headings are important “ ‘tools available for the resolution of a doubt’ about the meaning of a statute.” Almendarez-Torres v. United States, 523 U. S. 224, 234 (1998) .

C

1

     Statutory context confirms that Congress intended §1514A to apply only to employees of public companies. To start, the Sarbanes-Oxley Act as a whole evinces a clear focus on public companies. Congress stated in the Act’s preamble that its objective was to “protect investors by improving the accuracy and reliability of corporate disclosures made pursuant to the securities laws,” 116Stat. 745, disclosures that public companies alone must file. The Act thus created enhanced disclosure obligations for public companies, §401; added new conflict of interest rules for their executives, §402; increased the responsibilities of their audit committees, §301; and created new rules governing insider trading by their executives and directors, §306. The common denominator among all of these provisions is their singular focus on the activities of public companies.

     When Congress wanted to depart from the Act’s public company focus to regulate private firms and their employees, it spoke clearly. For example, §307 of the Act ordered the Securities and Exchange Commission (SEC) to issue rules “setting forth minimum standards of professional conduct for attorneys appearing and practicing before the [SEC],” including a rule requiring outside counsel to report violations of the securities laws to public company officers and directors. 15 U. S. C. §7245. Similarly, Title I of the Act created the Public Company Accounting Oversight Board (PCAOB) and vested it with the authorityto register, regulate, investigate, and discipline privately held outside accounting firms and their employees. §§7211–7215. And Title V required the SEC to adopt rules governing outside securities analysts when they make public recommendations regarding securities. §78o–6.

     Section 1514A, by contrast, does not unambiguously cover the employees of private businesses that contract with public companies or the employees of individuals who work for public companies. Far from it, for the reasons noted above. Yet as the rest of the Sarbanes-Oxley Act demonstrates, if Congress had really wanted §1514A to impose liability upon broad swaths of the private sector, it would have said so more clearly.

     Congress’ intent to adopt the narrower understanding of §1514A is also clear when the statute is compared to the whistleblower provision that served as its model. That provision, enacted as part of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, 49 U. S. C. §42121, provides that “[n]o air carrier or contractor or subcontractor of an air carrier” may retaliate against an employee who reports a potential airline safety violation.

     Section 42121 protects employees of contractors. But as the majority acknowledges, “Congress strayed” from §42121 in significant ways when it wrote §1514A. Ante,at 29. First, §42121 specifically defines the term “con-tractor,” limiting the term to “a company that performs safetysensitive functions by contract for an air carrier.” §42121(e). That is in notable distinction to §1514A, which does not define the word “contractor” as a particular type of company, instead placing the term in a list alongside individual “officer[s]” and “employee[s]” who act on a company’s behalf. Second, unlike §42121, §1514A sets off the term “contractor” in a separate clause that is subsidiary to the primary subject of the provision—the public company itself. Third, the title of §42121 is “[p]rotection of employees providing air safety information,” a title that comfortably encompasses the employees of contractors. Not so of §1514A’s headings, as explained above. In short, §42121 shows that Congress had an easy-to-follow model if it wanted to protect the employees of contractors, yet chose to depart from that model in several important ways. We should not presume that choice to be accidental. See Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 734 (1975) .

2

     The majority relies on statutory context as well, but its examples are unconvincing. It first argues that the types of conduct prohibited by the statute—“discharge, demotion, suspension, threats, harassment, [and] discrimination in the terms and conditions of employment”—are “commonly actions an employer takes against its own employees.” Ante, at 10. The problem is that §1514A does not forbid retaliation by an “employer”; it forbids retaliation by a “[public] company . . . or any officer, employee, contractor, subcontractor, or agent of such company.” For the reasons already discussed, Congress could have reasonably included the five types of representatives not in their capacity as employers, but rather as representatives of the company who are barred from retaliating against a public company’s employees on the company’s behalf.

     The majority next suggests that contractors are rarely “positioned to take adverse actions against employees of the public company with whom they contract.” Ante, at 10. That misconceives the nature of modern work forces, which increasingly comprise a mix of contractors and persons laboring under more typical employment relationships. For example, public companies often hire “independent contractors,” of whom there are more than 10 million,[3] and contract workers,[4] of whom there are more than 11 million.[5] And they employ outside lawyers, accountants, and auditors as well. While not every person who works for a public company in these nonemployee capacities may be positioned to threaten or harass em-

ployees of the public company, many are. See, e.g., Tides v. The Boeing Co., 644 F. 3d 809, 811 (CA9 2011) (noting that “approximately seventy contract auditors from [an] accounting firm” possessed “managerial authority” over the 10 Boeing employees in the company’s audit division). Congress therefore had as much reason to shield a public company’s employees from retaliation by the company’s contractors as it had to bar retaliation by officers and employees. Otherwise, the statute would have had a gaping hole—a public company could evade §1514A simply by hiring a contractor to engage in the very retaliatory acts that an officer or employee could not.[6]

     The majority also too quickly dismisses the prominence of “outplacement” firms, or consultants that help companies determine whom to fire. See ante, at 11. Companies spent $3.6 billion on these services in 2009 alone.[7] Congress surely could have meant to protect public company employees against retaliation at the hands of such firms, especially in the event that the public company itself goes bankrupt (as companies engaged in fraud often do). See, e.g., Kalkunte v. DVI Financial Servs., Inc., No. 05–139 etc., ALJ No. 2004–SOX–056 (Feb. 27, 2009) (former employee of bankrupt public company permitted to bring §1514A action against corporate restructuring firm that terminated her employment).[8]

     The majority points next to the remedies afforded by §1514A(c), which authorizes “all relief necessary to make the employee whole,” in addition to “reinstatement,” “back pay,” and “special damages . . . including litigation costs, expert witness fees, and reasonable attorney fees.” The majority posits that Congress could not have intended to bar contractors from retaliating against public company employees because one of the remedies (reinstatement) would likely be outside of the contractor’s power. Ante, at 13. But there is no requirement that a statute must make every type of remedy available against every type of defendant. A contractor can compensate a whistleblower with backpay, costs, and fees, and that is more than

enough for the statute’s remedial scheme to make sense. The majority’s reference to the affirmative defense for public company “employers” who lack “knowledge” that an employee has participated in a proceeding relating to the fraud report, ante, at 12 (citing §1514(A)(a)(2)), fails for a similar reason. There is no rule that Congress may only provide an affirmative defense if it is available to every conceivable defendant.

D

1

     Finally, the majority’s reading runs afoul of the precept that “interpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are avail-able.” Griffin v. Oceanic Contractors, Inc., 458 U. S. 564, 575 (1982) . The majority’s interpretation transforms §1514A into a sweeping source of litigation that Congress could not have intended. As construed by the majority, the Sarbanes-Oxley Act regulates employment relationships between individuals and their nannies, housekeepers, and caretakers, subjecting individual employers to litigation if their employees claim to have been harassed for providing information regarding any of a host of offenses. If, for example, a nanny is discharged after expressing a concern to his employer that the employer’s teenage son may be participating in some Internet fraud, the nanny can bring a §1514A suit. The employer may prevail, of course, if the nanny cannot prove he was fired “because of” the fraud report. §1514A. But there is little reason to think Congress intended to sweep such disputes into federal court.

     Nor is it plausible that Congress intended the Act to impose costly litigation burdens on any private business that happens to have an ongoing contract with a public company. As the majority acknowledges, the purpose of the Act was to protect public company investors and the financial markets. Yet the majority might well embroil federal agencies and courts in the resolution of mundane labor disputes that have nothing to do with such concerns. For instance, a construction worker could file a §1514A suit against her employer (that has a long-term contract with a public company) if the worker is demoted after reporting that another client has mailed the company a false invoice.[9]

     The majority’s interpretation also produces truly odd distinctions. Under the rule it announces, a babysitter can bring a §1514A retaliation suit against his employerif his employer is a checkout clerk for the local PetSmart (a public company), but not if she is a checkout clerk for the local Petco (a private company). Likewise, the day laborer who works for a construction business can avail himself of §1514A if her company has been hired to help remodel the local Dick’s Sporting Goods store (a public company), but not if it is remodeling a nearby Sports Authority (a private company).

     In light of the reasonable alternative reading of §1514A, there is no reason to accept these absurd results. The majority begs to differ, arguing that “[t]here is scant evidence” that lawsuits have been brought by the multitude of newly covered employees “ ‘who have no exposure to investor-related activities and thus could not possibly

assist in detecting investor fraud.’ ” Ante, at 22. Until today, however, no court has deemed §1514A applicable to household employees of individuals who work for public companies; even the Department of Labor’s ARB rejected that view. Spinner, ALJ No. 2010–SOX–029, at 8. And as the District Court noted, prior to the ARB’s 2012 decision in Spinner, the ARB “ha[d] yet to provide . . . definitive clarification” on the question whether §1514A extends to the employees of a public company’s private contractors. 724 F. Supp. 2d 141, 155 (Mass. 2010). So the fact that individuals and private businesses have yet to suffer burdensome litigation offers little assurance that the ma-jority’s capacious reading of §1514A will produce no un-toward effects.

     Finally, it must be noted that §1514A protects the reporting of a variety of frauds—not only securities fraud, but also mail, wire, and bank fraud. By interpreting a statute that already protects an expansive class of conduct also to cover a large class of employees, today’s opinion threatens to subject private companies to a costly new front of employment litigation. Congress almost certainly did not intend the statute to have that reach.

2

     The majority argues that the broader reading of §1514A is necessary because a small number of the millions of individuals and private companies affected by its ruling have a special role to play in preventing public company fraud. If §1514A does not bar retaliation against employees of contractors, the majority cautions, then law firms and accounting firms will be free to retaliate against their employees when those employees report fraud on the part of their public company clients.

     It is undisputed that Congress was aware of the role that outside accountants and lawyers played in the Enron debacle and the importance of encouraging them to play an active part in preventing future scandals. But it hardly follows that Congress must have meant to apply §1514A to every employee of every public company contractor, subcontractor, officer, and employee as a result. It is far more likely that Congress saw the unique ethical duties and professional concerns implicated by outside lawyers and accountants as reason to vest regulatory authority in the hands of experts with the power to sanction wrongdoers.

     Specifically, rather than imposing §1514A’s generic approach on outside accounting firms, Congress established the PCAOB, which regulates “every detail” of an accounting firm’s practice, including “supervision of au-dit work,” “internal inspection procedures,” “professional ethics rules,” and “ ‘such other requirements as the Board may prescribe.’ ” Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. ___, ___ (2010) (slip op., at 3–4). Importantly, the PCAOB is empowered to levy “severe sanctions in its disciplinary proceedings, up to and including the permanent revocation of a firm’s registration . . . and money penalties of $15 million.” Id., at ___ (slip op., at 4) (citing 15 U. S. C. §7215(c)(4)). Such sanctions could well provide a more powerful incentive to prevent an accounting firm from retaliating against its employees than §1514A.

     The Sarbanes-Oxley Act confers similar regulatory authority upon the SEC with respect to attorneys. The Act requires the SEC to establish rules of professional conduct for attorneys, §307 (codified at 15 U. S. C. §7245), and confers broad power on the SEC to punish attorneys for “improper professional conduct,” which would include, for example, a law firm partner’s decision to retaliate against an associate who reports fraud. §602 (codified at 15 U. S. C. §78d–3). Indeed, the Act grants the SEC the power to censure culpable attorneys and to deny “permanently” to any such attorney the “privilege of appearing of practicing before” the SEC “in any way.” §602.

     Congress thus evidently made the judgment that decisions concerning how best to punish law firms and accounting firms ought to be handled not by the Department of Labor, but by the SEC and the PCAOB. Such judgment should not be disturbed under usual circumstances, much less at the cost to congressional intent produced by today’s ruling. The majority does offer cogent policy arguments for why Congress might have been wiser to include certain types of contractors within §1514A, noting for example that a law firm or accounting firm might be able to retaliate against its employees for making reports required under the Sarbanes-Oxley Act. Ante, at 19. But as the majority recognizes, Congress has since remedied that precise concern, enacting a comprehensive whistleblower incentive and protection program that unequivocally “prohibit[s] any employer”—public or private—“from re-taliating against ‘a whistleblower’ for providing information to the SEC, participating in an SEC proceeding, or making disclosures required or protected under Sarbanes-Oxley and certain other securities laws.” Ante, at 26 (citing 15 U. S. C. §§78u–6(a)(6), (b)(1), (h)). The majority thus acknowledges that, moving forward, retaliation claims like the petitioners’ may “procee[d] under [§78u-6],” ante, at 26, n. 17. In other words, to the extent the major-ity worries about a “hole” in FMR’s interpretation, ante,at 14, Congress has already addressed it.[10]

II

     Because the statute is ambiguous, and because the majority’s broad interpretation has also been adopted by the ARB, there remains the question whether the ARB’s decision in Spinner, ALJ No. 2010–SOX–029, is entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984) .[11] Under United States v. Mead Corp., 533 U. S. 218 –227 (2001), an agency may claim Chevron deference “when it appears [1] that Congress delegated authority to the agency generally to make rules carrying the force of law, and [2] that the agency interpretation claiming deference was promulgated in the exercise of that authority.” Neither requirement is met here.

     First, the agency interpretation for which petitioners claim deference is the position announced by the ARB, the board to which the Secretary of Labor has delegated authority “in review or on appeal” in connection with §1514A proceedings. 75 Fed. Reg. 3924 (2010). According to petitioners, the ARB’s rulings are entitled to deference because the “Secretary is responsible for enforcing Section 1514A both through investigation and through formal adjudication.” Brief for Petitioners 61. That is right as far as it goes, but even if the Secretary has the power to investigate and adjudicate §1514A claims, Congress did not delegate authority to the Secretary to “make rules carrying the force of law,” Mead, 533 U. S., at 226–227. Congress instead delegated that power to the SEC: Section 3(a) of the Sarbanes-Oxley Act, codified at 15 U. S. C. §7202(a), provides that the SEC “shall promulgate such rules and regulations, as may be necessary or appropriate in the public interest or for the protection of investors, and in furtherance of this Act.” So if any agency has the authority to resolve ambiguities in §1514A with the forceof law, it is the SEC, not the Department of Labor.See Martin v. Occupational Safety and Health Review Comm’n, 499 U. S. 144, 154 (1991) . The SEC, however, has not issued a regulation applying §1514A whistleblower protection to employees of public company contractors. And while the majority notes that the SEC may share the (incorrect) view that the Department of Labor has interpretive authority regarding §1514A, ante, at 9, n. 6, the majority cites nothing to suggest that one agency may transfer authority unambiguously delegated to it by Congress to a different agency simply by signing onto an amicus brief.

     That Congress did not intend for the Secretary to resolve ambiguities in the law is confirmed by §1514A’s mechanism for judicial review. The statute does not merely permit courts to review the Secretary’s final adjudicatory rulings under the Administrative Procedure Act’s defer-ential standard. It instead allows a claimant to bring an action in a federal district court, and allows district courts to adjudicate such actions de novo, in any case where the Secretary has not issued a final decision within 180 days. That is a conspicuously short amount of time in light of the three-tiered process of agency review of §1514A claims. See ante, at 5–6. As a result, even if Congress had not delegated to the SEC the authority to resolve ambiguities in §1514A, the muscular scheme of judicial review suggests that Congress would have wanted federal courts, and not the Secretary of Labor, to have that power. See Mead, 533 U. S., at 232 (declining to defer to Customs Service classifications where, among other things, the statute authorized “independent review of Customs classifications by the [Court of International Trade]”).

     As to the second Mead requirement, even if Congress had delegated authority to the Secretary to make “rules carrying the force of law,” the “agency interpretation claiming deference” in this case was not “promulgated in the exercise of that authority.” Id., at 226–227. That is because the Secretary has explicitly vested any policymaking authority he may have with respect to §1514A in the Occupational Safety and Health Administration (OSHA) instead of the ARB. See 67 Fed. Reg. 65008 (2002). In fact, the Secretary has expressly withdrawn from the ARB any power to deviate from the rules OSHA issues on the Department of Labor’s behalf. 75 Fed. Reg. 3925 (“The [ARB] shall not have jurisdiction to pass on the validity of any portion of the Code of Federal Regulations that has been duly promulgated by the Department of Labor and shall observe the provisions thereof, where pertinent, in its decisions”).

     OSHA has promulgated regulations supporting the majority’s reading of §1514A. See 29 CFR §1980.101(f)–(g) (2013). The Secretary, however, has expressly disclaimed any claim of deference to them. See Brief for United States as Amicus Curiae 33, n. 8. As a result, the ARB’s understanding of §1514A’s coverage in Spinner was not an “exercise of [the Secretary’s] authority” to make rules carrying the force of law, Mead, 533 U. S., at 226–227, but rather the ARB’s necessary compliance with a regulation that no one claims is deserving of deference in the first place. See Spinner, ALJ No. 2010–SOX–029, at 10 (recognizing that “the ARB is bound by the [Department of Labor] regulations”).

     In the absence of Chevron deference, the ARB’s decision in Spinner may claim only “respect according to its persuasiveness” under Skidmore v. Swift & Co., 323 U. S.134 (1944). See Mead, 533 U. S., at 221. But the ARB’s decision is unpersuasive, for the many reasons already discussed.

*  *  *

     The Court’s interpretation of §1514A undeniably serves a laudatory purpose. By covering employees of every of-ficer, employee, and contractor of every public company, the majority’s interpretation extends §1514A’s protections to the outside lawyers and accountants who could have helped prevent the Enron fraud.

     But that is not the statute Congress wrote. Congress envisioned a system in which public company employees would be covered by §1514A, and in which outside lawyers, investment advisers, and accountants would be regulated by the SEC and PCAOB. Congress did not envision a system in which employees of other private businesses—such as cleaning and construction company workers who have little interaction with investor-related activities and who are thus ill suited to assist in detecting fraud against shareholders—would fall within §1514A. Nor, needless to say, did it envision §1514A applying to the household employees of millions of individuals who happen to work for public companies—housekeepers, gardeners, and babysitters who are also poorly positioned to prevent fraud against public company investors. And to the extent §1514A may have been underinclusive as first drafted, Congress has shown itself capable of filling in any gaps. See, e.g., Dodd-Frank Wall Street Reform and Consumer Protection Act, §§922, 929A, 124Stat. 1848, 1852 (extending §1514A to credit rating agencies and public company subsidiaries); §922, id., at 1841–1848 (codifying additional whistleblower incentive and protection program at 15 U. S. C. §78u–6).

     The Court’s decision upsets the balance struck by Congress. Fortunately, just as Congress has added further protections to the system it originally designed when necessary, so too may Congress now respond to limit the far-reaching implications of the Court’s interpretation.[12] But because that interpretation relies on a debatable view of §1514A’s text, is inconsistent with the statute’s titles and its context, and leads to absurd results that Congress did not intend, I respectfully dissent.

Notes

1  The majority uses the term “public company” as shorthand for ’s reference to companies that either have “ ‘a class of securities registered under section 12 of the Securities Exchange Act of 1934,’ ” or that are “ ‘required to file reports under section 15(d).’ ” at 7–8. I do the same.
2  In reaching the opposite conclusion, the majority rejects the concessions by the Government and petitioners and gives no weight to the ARB’s interpretation. If §1514A creates a cause of action for contractor employees, the majority concludes, so too must it create a cause of action for “housekeepers” and “gardeners” against their individual employers if they happen to work for a public company. , at 15. In reaching this result, however, the majority only adds to the absurdities produced by its holding. See , at 12–13.
3  Dept. of Labor, Bureau of Labor Statistics, News, Contingent and Alternative Employment Arrangements, Feb. 2005, (July 27, 2005), online at http://www.bls.gov/news.release/‌conemp.nr0.htm (all Internet materials as visited on Feb. 28, 2014, and available in Clerk of Court’s case file).
4  The Bureau of Labor Statistics distinguishes contract workers from independent contractors, defining the former as “[w]orkers who are employed by a company that provides them or their services to others under contract and who . . . usually work at the customer’s worksite.” at 2 (Table A).
5  Penn, Staffing Firms Added Nearly 1 Million Jobs Over Four Years Since Recession, ASA Says, Bloomberg Law (Oct. 8, 2012), online at http://about.bloomberglaw.com/law-reports/staffing-firms-added-nearly-1-million-jobs-over-four-years-since-recession-asa-says/.
6  The majority submits that the hole might not be so problematic because §1514A “surely” prohibits a “public company from directing someone else to engage in retaliatory conduct against the public company’s employees.” at 13. It surely does, but that is the point—the whole reason §1514A(a) clearly does so is because it expressly forbids a public company to retaliate against its employees through “any officer, employee, contractor, subcontractor, or agent.” The prohibition on retaliation through a contractor would be far less certain (hence the hole) if Congress had merely forbidden a public company to retaliate through its “officers and employees.” Moreover, while the majority concedes that, under the narrower reading of §1514A, Congress’ inclusion of the term “contractor” imposes secondary liability in the event a public company is judgment proof, at 13, the majority fails to recognize that Congress’ use of the term also imposes primary liability against contractors who threaten public company employees without direction from the company. Thus, for example, FMR’s interpretation of §1514A would prevent an outside accountant from threatening or harassing a public company employee who discovers that the accountant is defrauding the public company and who seeks to blow the whistle on that fraud.
7  Rogers, Do Firing Consultants Really Exist, Slate, Jan. 7, 2010, www.slate.com/articles/news_and_politics/explainer/2010/01/getting_the_ax_from_george_clooney.html.
8  The majority suggests that an outplacement firm would likely be acting as an “agent” for the public company, such that Congress’ additional inclusion of the word “contractor” would be superfluous under the narrower reading of §1514A. at 11, n. 9. The two words are not legally synonymous, however. An outplacement firm and public company might, for example, enter into a contract with a provision expressly disclaiming an agency relationship. Moreover, Congress’ use of the term “contractor” would in all events have an independent and important effect: If Congress had not included the term, no onecould be held liable if a contractor were to threaten or harass a public company employee without the company’s direction. While the major-ity may speculate that such occurrences are rare, , it is hardly unthinkable. See n. 6, .
9  Recognizing that the majority’s reading would lead to a “notably expansive scope untethered to the purpose of the statute,” the District Court in this case sought to impose an extratextual limiting principle under which an employee who reports fraud is entitled to protection only if her report “relat[es] to fraud against shareholders.” 724 F. Supp. 2d 141, 160 (Mass. 2010). The District Court acknowledged, however, that “the language of the statute itself does not plainly provide such a limiting principle,” at 158, and the majority does not attempt to revive that limitation here.
10  The majority also contends that its reading is necessary to avoid “insulating the entire mutual fund industry from §1514A.” at 20. But that argument is misguided for a reason similar to the majority’s concern about lawyers and accountants. As this Court has observed, Congress responded to the “ ‘potential for abuse inherent in the structure of investment companies,’ ” v. , , by enacting the Investment Company Act of 1940 and the Investment Advisers Act of 1940. –1 ; §80b–1 . The Advisers Act in particular grants the SEC broad regulatory authority to regulate mutual fund investment advisers.
11  Although it claims not to reach the issue, , at 9, n. 6, the majority implicitly declines to defer to a portion of the ARB’s ruling as well, rejecting the ARB’s ruling that §1514A does not apply to the household employees of public company officers and employees, at 15, and n. 11.
12  Congress could, for example, limit §1514A to contractor employees in only those professions that can assist in detecting fraud on public company shareholders, or it could restrict the fraud reports that trigger whistleblower protection to those that implicate the interests of public company investors, seen. 9, .

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