Judge John Owens
One paragraph. That’s the entirety of Ninth Circuit Judge John Owens’s dissent in Somers v. Digital Realty Trust, but that’s all he needed.
See, there’s a circuit split on the interpretation of the term “whistleblower” in the Dodd-Frank Act’s anti-retaliation provision. The Second Circuit holds that protections for whistleblowers apply to internally reporting allegedly unlawful activity, as well as when reporting said activity to the Securities and Exchange Commission. The Fifth Circuit has a more narrow approach, applying the protections only when reporting to the SEC.
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In the Somers case, the majority of the Ninth Circuit panel sides with the Second Circuit, and applies whistleblower protections outside of the SEC context. But not Judge Owens. He’s feeling the Fifth Circuit love, and he’s standing with them:
Both the majority here and the Second Circuit in Berman rely in part on King v. Burwell, 135 S. Ct. 2480 (2015), to read the relevant statutes in favor of the government’s position. In my view, we should quarantine King and its potentially dangerous shapeshifting nature to the specific facts of that case to avoid jurisprudential disruption on a cellular level. Cf. John Carpenter’s The Thing (Universal Pictures 1982).
Which will only matter until Congress does away with Dodd-Frank.
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Kathryn Rubino is an editor at Above the Law. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).