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

Annotate this Case



No. 12–3



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

[March 4, 2014]

     Justice Scalia, with whom Justice Thomas joins, concurring in principal part and concurring in the judgment.

     I agree with the Court’s conclusion that 18 U. S. C. §1514A protects employees of private contractors from retaliation when they report covered forms of fraud. As the Court carefully demonstrates, that conclusion logically flows from §1514A’s text and broader context. I therefore join the Court’s opinion in principal part.

     I do not endorse, however, the Court’s occasional excursions beyond the interpretative terra firma of text and context, into the swamps of legislative history. Reliance on legislative history rests upon several frail premises. First, and most important: That the statute means what Congress intended. It does not. Because we are a govern-ment of laws, not of men, and are governed by what Congress enacted rather than by what it intended, the sole object of the interpretative enterprise is to determine what a law says. Second: That there was a congressional “intent” apart from that reflected in the enacted text. On most issues of detail that come before this Court, I am confident that the majority of Senators and Representatives had no views whatever on how the issues should be resolved—indeed, were unaware of the issues entirely. Third: That the views expressed in a committee report or a floor statement represent those of all the Members of that House. Many of them almost certainly did not read the report or hear the statement, much less agree with it—not to mention the Members of the other House and the President who signed the bill.

     Since congressional “intent” apart from enacted text is fiction to begin with, courts understandably allow themselves a good deal of poetic license in defining it. Today’s opinion is no exception. It cites parts of the legislative record that are consistent with its holding that §1514A covers employees of private contractors and subcontractors, but it ignores other parts that unequivocally cut in the opposite direction. For example, the following remark by the Sarbanes-Oxley Act’s lead sponsor in the Senate: “[L]et me make very clear that [the Act] applies exclusively to public companies—that is, to companies registered with the Securities and Exchange Commission. It is not applicable to pr[i]v[at]e companies,[[1]] who make up the vast majority of companies across the country.” 148 Cong. Rec. 14440 (2002) (remarks of Sen. Sarbanes).

     Two other minor points in the Court’s opinion I do not agree with. First, I do not rely on the fact that a separate anti-retaliation provision, 49 U. S. C. §42121(a), “has been read” by an administrative tribunal to cover contractor employees. Ante, at 29. Section 1514A(b)(2), entitled “Procedure,” contains cross-references to the procedural rules set forth in §42121(b), but the substantive provisions of §1514A(a) are worded quite differently from the substantive prohibition of §42121, which is contained in subsection (a)—thus making interpretation of the latter an unreliable guide to §1514A’s meaning. Second, I do not agree with the Court’s acceptance of the possible validity of the Government’s suggestion that “§1514A protects contractor employees only to the extent that their whistleblowing relates to ‘the contractor . . . fulfilling its role as a contractor for the public company.’ ” Ante, at 23 (quoting Tr. of Oral Arg. 18–19). Although that “limiting principl[e],” ibid., may be appealing from a policy standpoint, it has no basis whatsoever in the statute’s text. So long as an employee works for one of the actors enumerated in §1514A(a) and reports a covered form of fraud in a manner identified in §1514(a)(1)–(2), the employee is protected from retaliation.

     For all the other reasons given by the Court, the statute’s text is clear, and I would reverse the judgment of the Court of Appeals and remand the case.


1  The Congressional Record reads “provide companies,” but context as well as grammar makes clear that this is a scrivener’s error for “private companies.”
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