Digital Realty Trust, Inc. v. Somers

(Slip Opinion) OCTOBER TERM, 2017 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
DIGITAL REALTY TRUST, INC. v. SOMERS
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 16–1276. Argued November 28, 2017—Decided February 21, 2018
Endeavoring to root out corporate fraud, Congress passed the Sar-
banes-Oxley Act of 2002 (Sarbanes-Oxley) and the 2010 Dodd-Frank
Wall Street Reform and Consumer Protection Act (Dodd-Frank).
Both Acts shield whistleblowers from retaliation, but they differ in
important respects. Sarbanes-Oxley applies to all “employees” who
report misconduct to the Securities and Exchange Commission (SEC
or Commission), any other federal agency, Congress, or an internal
supervisor. 18 U.S. C. §1514A(a)(1). Dodd-Frank defines a “whistle-
blower” as “any individual who provides . . . information relating to a
violation of the securities laws to the Commission, in a manner estab-
lished, by rule or regulation, by the Commission.” 15 U.S. C. §78u–
6(a)(6). A whistleblower so defined is eligible for an award if original
information provided to the SEC leads to a successful enforcement
action. §78u–6(b)–(g). And he or she is protected from retaliation in
three situations, see §78u–6(h)(1)(A)(i)–(iii), including for “making
disclosures that are required or protected under” Sarbanes-Oxley or
other specified laws, §78u–6(h)(1)(A)(iii). Sarbanes-Oxley’s anti-
retaliation provision contains an administrative-exhaustion require-
ment and a 180-day administrative complaint-filing deadline, see 18
U.S. C. §1514A(b)(1)(A), (2)(D), whereas Dodd-Frank permits a whis-
tleblower to sue an employer directly in federal district court, with a
default six-year limitation period, see §78u–6(h)(1)(B)(i), (iii)(I)(aa).
The SEC’s regulations implementing the Dodd-Frank provision
contain two discrete whistleblower definitions. For purposes of the
award program, Rule 21F–2 requires a whistleblower to “provide the
Commission with information” relating to possible securities-law vio-
lations. 17 CFR §240.21F–2(a)(1). For purposes of the anti-
retaliation protections, however, the Rule does not require SEC re-
2 DIGITAL REALTY TRUST, INC. v. SOMERS
Syllabus
porting. See §240.21F–2(b)(1)(i)–(ii).
Respondent Paul Somers alleges that petitioner Digital Realty
Trust, Inc. (Digital Realty) terminated his employment shortly after
he reported to senior management suspected securities-law violations
by the company. Somers filed suit, alleging, inter alia, a claim of
whistleblower retaliation under Dodd-Frank. Digital Realty moved
to dismiss that claim on the ground that Somers was not a whistle-
blower under §78u–6(h) because he did not alert the SEC prior to his
termination. The District Court denied the motion, and the Ninth
Circuit affirmed. The Court of Appeals concluded that §78u–6(h)
does not necessitate recourse to the SEC prior to gaining “whistle-
blower” status, and it accorded deference to the SEC’s regulation un-
der Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837.
Held: Dodd-Frank’s anti-retaliation provision does not extend to an
individual, like Somers, who has not reported a violation of the secu-
rities laws to the SEC. Pp. 9–19.
(a) A statute’s explicit definition must be followed, even if it varies
from a term’s ordinary meaning. Burgess v. United States, 553 U.S.
124, 130. Section 78u–6(a) instructs that the statute’s definition of
“whistleblower” “shall apply” “[i]n this section,” that is, throughout
§78u–6. The Court must therefore interpret the term “whistleblower”
in §78u–6(h), the anti-retaliation provision, in accordance with that
definition.
The whistleblower definition operates in conjunction with the three
clauses of §78u–6(h)(1)(A) to spell out the provision’s scope. The def-
inition first describes who is eligible for protection—namely, a “whis-
tleblower” who provides pertinent information “to the Commission.”
§78u–6(a)(6). The three clauses then describe what conduct, when
engaged in by a “whistleblower,” is shielded from employment dis-
crimination. An individual who meets both measures may invoke
Dodd-Frank’s protections. But an individual who falls outside the
protected category of “whistleblowers” is ineligible to seek redress
under the statute, regardless of the conduct in which that individual
engages. This reading is reinforced by another whistleblower-
protection provision in Dodd-Frank, see 12 U.S. C. §5567(b), which
imposes no requirement that information be conveyed to a govern-
ment agency. Pp. 9–11.
(b) The Court’s understanding is corroborated by Dodd-Frank’s
purpose and design. The core objective of Dodd-Frank’s whistleblow-
er program is to aid the Commission’s enforcement efforts by “moti-
vat[ing] people who know of securities law violations to tell the SEC.”
S. Rep. No. 111–176, p. 38 (emphasis added). To that end, Congress
provided monetary awards to whistleblowers who furnish actionable
Cite as: 583 U. S. ____ (2018) 3
Syllabus
information to the Commission. Congress also complemented the fi-
nancial incentives for SEC reporting by heightening protection
against retaliation. Pp. 11–12.
(c) Somers and the Solicitor General contend that Dodd-Frank’s
“whistleblower” definition applies only to the statute’s award pro-
gram and not, as the definition plainly states, to its anti-retaliation
provision. Their concerns do not support a departure from the statu-
tory text. Pp. 12–18.
(1) They claim that the Court’s reading would vitiate the protec-
tions of clause (iii) for whistleblowers who make disclosures to per-
sons and entities other than the SEC. See §78u–6(h)(1)(A)(iii). But
the plain-text reading of the statute leaves the third clause with sub-
stantial meaning by protecting a whistleblower who reports miscon-
duct both to the SEC and to another entity, but suffers retaliation be-
cause of the latter, non-SEC, disclosure. Pp. 13–15.
(2) Nor would the Court’s reading jettison protections for audi-
tors, attorneys, and other employees who are required to report in-
formation within the company before making external disclosures.
Such employees would be shielded as soon as they also provide rele-
vant information to the Commission. And Congress may well have
considered adequate the safeguards already afforded to such employ-
ees by Sarbanes-Oxley. Pp. 15–16.
(3) Applying the “whistleblower” definition as written, Somers
and the Solicitor General further protest, will allow “identical mis-
conduct” to “go punished or not based on the happenstance of a sepa-
rate report” to the SEC. Brief for Respondent 37–38. But it is under-
standable that the statute’s retaliation protections, like its financial
rewards, would be reserved for employees who have done what Dodd-
Frank seeks to achieve by reporting information about unlawful ac-
tivity to the SEC. P. 16.
(4) The Solicitor General observes that the statute contains no
apparent requirement of a “temporal or topical connection between
the violation reported to the Commission and the internal disclosure
for which the employee suffers retaliation.” Brief for United States
as Amicus Curiae 25. The Court need not dwell on related hypotheti-
cals, which veer far from the case at hand. Pp. 16–18.
(5) Finally, the interpretation adopted here would not undermine
clause (ii) of §78u–6(h)(1)(A), which prohibits retaliation against a
whistleblower for “initiating, testifying in, or assisting in any investi-
gation or . . . action of the Commission based upon” information con-
veyed to the SEC by a whistleblower in accordance with the statute.
The statute delegates authority to the Commission to establish the
“manner” in which a whistleblower may provide information to the
SEC. §78u–6(a)(6). Nothing prevents the Commission from enumer-
4 DIGITAL REALTY TRUST, INC. v. SOMERS
Syllabus
ating additional means of SEC reporting, including through testimo-
ny protected by clause (ii). P. 18.
(d) Because “Congress has directly spoken to the precise question
at issue,” Chevron, 467 U.S., at 842, deference is not accorded to the
contrary view advanced by the SEC in Rule 21F–2. Pp. 18–19.
850 F.3d 1045, reversed and remanded.
GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. SO-
TOMAYOR, J., filed a concurring opinion, in which BREYER, J., joined.
THOMAS, J., filed an opinion concurring in part and concurring in the
judgment, in which ALITO and GORSUCH, JJ., joined.
Cite as: 583 U. S. ____ (2018) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1276
_________________
DIGITAL REALTY TRUST, INC., PETITIONER v.
PAUL SOMERS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[February 21, 2018]
JUSTICE GINSBURG delivered the opinion of the Court.
Endeavoring to root out corporate fraud, Congress
passed the Sarbanes-Oxley Act of 2002, 116 Stat. 745
(Sarbanes-Oxley), and the 2010 Dodd-Frank Wall Street
Reform and Consumer Protection Act, 124 Stat. 1376
(Dodd-Frank). Both Acts shield whistleblowers from
retaliation, but they differ in important respects. Most
notably, Sarbanes-Oxley applies to all “employees” who
report misconduct to the Securities and Exchange Com-
mission (SEC or Commission), any other federal agency,
Congress, or an internal supervisor. 18 U.S. C.
§1514A(a)(1). Dodd-Frank delineates a more circum-
scribed class; it defines “whistleblower” to mean a person
who provides “information relating to a violation of the
securities laws to the Commission.” 15 U.S. C. §78u–
6(a)(6). A whistleblower so defined is eligible for an award
if original information he or she provides to the SEC leads
to a successful enforcement action. §78u–6(b)–(g). And,
most relevant here, a whistleblower is protected from
retaliation for, inter alia, “making disclosures that are
required or protected under” Sarbanes-Oxley, the Securi-
2 DIGITAL REALTY TRUST, INC. v. SOMERS
Opinion of the Court
ties Exchange Act of 1934, the criminal anti-retaliation
proscription at 18 U.S. C. §1513(e), or any other
law subject to the SEC’s jurisdiction. 15 U.S. C.
§78u–6(h)(1)(A)(iii).
The question presented: Does the anti-retaliation provi-
sion of Dodd-Frank extend to an individual who has not
reported a violation of the securities laws to the SEC and
therefore falls outside the Act’s definition of “whistleblow-
er”? Pet. for Cert. (I). We answer that question “No”: To
sue under Dodd-Frank’s anti-retaliation provision, a per-
son must first “provid[e] . . . information relating to a
violation of the securities laws to the Commission.”
§78u–6(a)(6).
I
A
“To safeguard investors in public companies and restore
trust in the financial markets following the collapse of
Enron Corporation,” Congress enacted Sarbanes-Oxley in
2002. Lawson v. FMR LLC, 571 U.S. 429, ___ (2014) (slip
op., at 1). Most pertinent here, Sarbanes-Oxley created
new protections for employees at risk of retaliation for
reporting corporate misconduct. See 18 U.S. C. §1514A.
Section 1514A prohibits certain companies from discharg-
ing or otherwise “discriminat[ing] against an employee in
the terms and conditions of employment because” the
employee “provid[es] information . . . or otherwise assist[s]
in an investigation regarding any conduct which the em-
ployee reasonably believes constitutes a violation” of cer-
tain criminal fraud statutes, any SEC rule or regulation,
or “any provision of Federal law relating to fraud against
shareholders.” §1514A(a)(1). An employee qualifies for
protection when he or she provides information or assis-
tance either to a federal regulatory or law enforcement
agency, Congress, or any “person with supervisory author-
Cite as: 583 U. S. ____ (2018) 3
Opinion of the Court
ity over the employee.” §1514A(a)(1)(A)–(C).1
To recover under §1514A, an aggrieved employee must
exhaust administrative remedies by “filing a complaint
with the Secretary of Labor.” §1514A(b)(1)(A); see Law-
son, 571 U. S., at ___–___ (slip op., at 5–6). Congress
prescribed a 180-day limitation period for filing such a
complaint. §1514A(b)(2)(D). If the agency “does not issue
a final decision within 180 days of the filing of [a] com-
plaint, and the [agency’s] delay is not due to bad faith on
the claimant’s part, the claimant may proceed to federal
district court for de novo review.” Id., at ___ (slip op., at 6)
(citing §1514A(b)). An employee who prevails in a pro-
ceeding under §1514A is “entitled to all relief necessary to
make the employee whole,” including reinstatement,
backpay with interest, and any “special damages sus-
tained as a result of the discrimination,” among such
damages, litigation costs. §1514A(c).
B
1
At issue in this case is the Dodd-Frank anti-retaliation
provision enacted in 2010, eight years after the enactment
of Sarbanes-Oxley. Passed in the wake of the 2008 finan-
cial crisis, Dodd-Frank aimed to “promote the financial
stability of the United States by improving accountability
and transparency in the financial system.” 124 Stat. 1376.
Dodd-Frank responded to numerous perceived short-
comings in financial regulation. Among them was the
SEC’s need for additional “power, assistance and money at
its disposal” to regulate securities markets. S. Rep. No.
111–176, pp. 36, 37 (2010). To assist the Commission “in
——————
1 Sarbanes-Oxley also prohibits retaliation against an “employee” who
“file[s], . . . testif[ies], participate[s] in, or otherwise assist[s] in a
proceeding filed or about to be filed . . . relating to an alleged violation
of” the same provisions of federal law addressed in 18 U.S. C.
§1514A(a)(1). See §1514A(a)(2).
4 DIGITAL REALTY TRUST, INC. v. SOMERS
Opinion of the Court
identifying securities law violations,” the Act established
“a new, robust whistleblower program designed to moti-
vate people who know of securities law violations to tell
the SEC.” Id., at 38. And recognizing that “whistleblow-
ers often face the difficult choice between telling the truth
and . . . committing ‘career suicide,’ ” Congress sought to
protect whistleblowers from employment discrimination.
Id., at 111, 112.
Dodd-Frank implemented these goals by adding a new
provision to the Securities Exchange Act of 1934: 15
U.S. C. §78u–6. Section 78u–6 begins by defining a
“whistleblower” as “any individual who provides . . . in-
formation relating to a violation of the securities laws to
the Commission, in a manner established, by rule or regu-
lation, by the Commission.” §78u–6(a)(6) (emphasis
added). That definition, the statute directs, “shall apply”
“[i]n this section”—i.e., throughout §78u–6. §78u–6(a).
Section 78u–6 affords covered whistleblowers both
incentives and protection. First, the section creates an
award program for “whistleblowers who voluntarily
provid[e] original information to the Commission that
le[ads] to the successful enforcement of [a] covered judicial
or administrative action.” §78u–6(b)(1). A qualifying
whistleblower is entitled to a cash award of 10 to 30 per-
cent of the monetary sanctions collected in the enforce-
ment action. See §78u–6(b)(1)(A)–(B).
Second, §78u–6(h) prohibits an employer from discharg-
ing, harassing, or otherwise discriminating against a
“whistleblower” “because of any lawful act done by the
whistleblower” in three situations: first, “in providing
information to the Commission in accordance with [§78u–
6],” §78u–6(h)(1)(A)(i); second, “in initiating, testifying in,
or assisting in any investigation or . . . action of the Com-
mission based upon” information provided to the SEC in
accordance with §78u–6, §78u–6(h)(1)(A)(ii); and third, “in
making disclosures that are required or protected under”
Cite as: 583 U. S. ____ (2018) 5
Opinion of the Court
either Sarbanes-Oxley, the Securities Exchange Act of
1934, the criminal anti-retaliation prohibition at 18
U.S. C. §1513(e),2 or “any other law, rule, or regulation
subject to the jurisdiction of the Commission,” §78u–
6(h)(1)(A)(iii). Clause (iii), by cross-referencing Sarbanes-
Oxley and other laws, protects disclosures made to a
variety of individuals and entities in addition to the SEC.
For example, the clause shields an employee’s reports of
wrongdoing to an internal supervisor if the reports are
independently safeguarded from retaliation under Sarbanes-
Oxley. See supra, at 2–3.3
The recovery procedures under the anti-retaliation
provisions of Dodd-Frank and Sarbanes-Oxley differ in
critical respects. First, unlike Sarbanes-Oxley, which
contains an administrative-exhaustion requirement and a
180-day administrative complaint-filing deadline, see 18
U.S. C. §1514A(b)(1)(A), (2)(D), Dodd-Frank permits a
whistleblower to sue a current or former employer directly
——————
2 Section 1513(e) provides: “Whoever knowingly, with the intent to
retaliate, takes any action harmful to any person, including interfer-
ence with the lawful employment or livelihood of any person, for provid-
ing 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.”
3 Section 78u–6(h)(1)(A) reads in full:
“No employer may discharge, demote, suspend, threaten, harass,
directly or indirectly, or in any other manner discriminate against, a
whistleblower in the terms and conditions of employment because of
any lawful act done by the whistleblower—
“(i) in providing information to the Commission in accordance with
this section;
“(ii) in initiating, testifying in, or assisting in any investigation or
judicial or administrative action of the Commission based upon or
related to such information; or
“(iii) in making disclosures that are required or protected under the
Sarbanes-Oxley Act of 2002 (15 U.S. C. §7201 et seq.), this chapter,
including section 78j–l(m) of this title, section 1513(e) of title 18, and
any other law, rule, or regulation subject to the jurisdiction of the
Commission.”
6 DIGITAL REALTY TRUST, INC. v. SOMERS
Opinion of the Court
in federal district court, with a default limitation period of
six years, see §78u–6(h)(1)(B)(i), (iii)(I)(aa). Second, Dodd-
Frank instructs a court to award to a prevailing plaintiff
double backpay with interest, see §78u–6(h)(1)(C)(ii),
while Sarbanes-Oxley limits recovery to actual backpay
with interest, see 18 U.S. C. §1514A(c)(2)(B). Like Sarbanes-
Oxley, however, Dodd-Frank authorizes reinstatement
and compensation for litigation costs, expert witness fees,
and reasonable attorneys’ fees. Compare §78u–
6(h)(1)(C)(i), (iii), with 18 U.S. C. §1514A(c)(2)(A), (C).4
2
Congress authorized the SEC “to issue such rules and
regulations as may be necessary or appropriate to imple-
ment the provisions of [§78u–6] consistent with the pur-
poses of this section.” §78u–6(j). Pursuant to this author-
ity, the SEC published a notice of proposed rulemaking to
“Implemen[t] the Whistleblower Provisions” of Dodd-
Frank. 75 Fed. Reg. 70488 (2010). Proposed Rule 21F–
2(a) defined a “whistleblower,” for purposes of both the
award and anti-retaliation provisions of §78u–6, as one or
more individuals who “provide the Commission with in-
formation relating to a potential violation of the securities
laws.” Id., at 70519 (proposed 17 CFR §240.21F–2(a)).
The proposed rule, the agency noted, “tracks the statutory
definition of a ‘whistleblower’ ” by requiring information
reporting to the SEC itself. 75 Fed. Reg. 70489.
In promulgating the final Rule, however, the agency
changed course. Rule 21F–2, in finished form, contains
two discrete “whistleblower” definitions. See 17 CFR
§240.21F–2(a)–(b) (2017). For purposes of the award
program, the Rule states that “[y]ou are a whistleblower if
——————
4 Unlike
Dodd-Frank, Sarbanes-Oxley explicitly entitles a prevailing
employee to “all relief necessary to make the employee whole,” includ-
ing “compensation for any special damages sustained as a result of the
discrimination.” 18 U.S. C. §1514A(c)(1), (2)(C).
Cite as: 583 U. S. ____ (2018) 7
Opinion of the Court
. . . you provide the Commission with information . . .
relat[ing] to a possible violation of the Federal securities
laws.” §240.21F–2(a)(1) (emphasis added). The infor-
mation must be provided to the SEC through its website
or by mailing or faxing a specified form to the SEC Office
of the Whistleblower. See ibid.; §240.21F–9(a)(1)–(2).
“For purposes of the anti-retaliation protections,” how-
ever, the Rule states that “[y]ou are a whistleblower if . . .
[y]ou possess a reasonable belief that the information you
are providing relates to a possible securities law violation”
and “[y]ou provide that information in a manner described
in” clauses (i) through (iii) of §78u–6(h)(1)(A). 17 CFR
§240.21F–2(b)(1)(i)–(ii). “The anti-retaliation protections
apply,” the Rule emphasizes, “whether or not you satisfy
the requirements, procedures and conditions to qualify for
an award.” §240.21F–2(b)(1)(iii). An individual may
therefore gain anti-retaliation protection as a “whistle-
blower” under Rule 21F–2 without providing information
to the SEC, so long as he or she provides information in a
manner shielded by one of the anti-retaliation provision’s
three clauses. For example, a report to a company super-
visor would qualify if the report garners protection under
the Sarbanes-Oxley anti-retaliation provision.5
C
Petitioner Digital Realty Trust, Inc. (Digital Realty) is a
real estate investment trust that owns, acquires, and
develops data centers. See Brief for Petitioner 3. Digital
Realty employed respondent Paul Somers as a Vice Presi-
dent from 2010 to 2014. See 119 F. Supp. 3d 1088, 1092
(ND Cal. 2015). Somers alleges that Digital Realty termi-
nated him shortly after he reported to senior management
suspected securities-law violations by the company. See
——————
5 In 2015, the SEC issued an interpretive rule reiterating that anti-
retaliation protection is not contingent on a whistleblower’s provision of
information to the Commission. See 80 Fed. Reg. 47829 (2015).
8 DIGITAL REALTY TRUST, INC. v. SOMERS
Opinion of the Court
ibid. Although nothing impeded him from alerting the
SEC prior to his termination, he did not do so. See Tr. of
Oral Arg. 45. Nor did he file an administrative complaint
within 180 days of his termination, rendering him ineligi-
ble for relief under Sarbanes-Oxley. See ibid.; 18 U.S. C.
§1514A(b)(2)(D).
Somers brought suit in the United States District Court
for the Northern District of California alleging, inter alia,
a claim of whistleblower retaliation under Dodd-Frank.
Digital Realty moved to dismiss that claim, arguing that
“Somers does not qualify as a ‘whistleblower’ under [§78u–
6(h)] because he did not report any alleged law violations
to the SEC.” 119 F. Supp. 3d, at 1094. The District Court
denied the motion. Rule 21F–2, the court observed, does
not necessitate recourse to the SEC prior to gaining “whis-
tleblower” status under Dodd-Frank. See id., at 1095–
1096. Finding the statutory scheme ambiguous, the court
accorded deference to the SEC’s Rule under Chevron
U. S. A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984). See 119 F. Supp. 3d, at 1096–1106.
On interlocutory appeal, a divided panel of the Court of
Appeals for the Ninth Circuit affirmed. 850 F.3d 1045
(2017). The majority acknowledged that Dodd-Frank’s
definitional provision describes a “whistleblower” as an
individual who provides information to the SEC itself. Id.,
at 1049. But applying that definition to the anti-
retaliation provision, the majority reasoned, would narrow
the third clause of §78u–6(h)(1)(A) “to the point of absurd-
ity”: The statute would protect employees only if they
“reported possible securities violations both internally and
to the SEC.” Ibid. Such dual reporting, the majority
believed, was unlikely to occur. Ibid. Therefore, the
majority concluded, the statute should be read to protect
employees who make disclosures privileged by clause (iii)
of §78u–6(h)(1)(A), whether or not those employees also
provide information to the SEC. Id., at 1050. In any
Cite as: 583 U. S. ____ (2018) 9
Opinion of the Court
event, the majority held, the SEC’s resolution of any stat-
utory ambiguity warranted deference. Ibid. Judge Owens
dissented. In his view, the statutory definition of whistle-
blower was clear, left no room for interpretation, and
plainly governed. Id., at 1051.
Two other Courts of Appeals have weighed in on the
question before us. The Court of Appeals for the Fifth
Circuit has held that employees must provide information
to the SEC to avail themselves of Dodd-Frank’s anti-
retaliation safeguard. See Asadi v. G. E. Energy (USA),
L. L. C., 720 F.3d 620, 630 (2013). A divided panel of the
Court of Appeals for the Second Circuit reached the oppo-
site conclusion, over a dissent by Judge Jacobs. See Ber-
man v. NEO@OGILVY LLC, 801 F.3d 145, 155 (2013).
We granted certiorari to resolve this conflict, 582 U. S. ___
(2017), and now reverse the Ninth Circuit’s judgment.
II
“When a statute includes an explicit definition, we must
follow that definition,” even if it varies from a term’s
ordinary meaning. Burgess v. United States, 553 U.S.
124, 130 (2008) (internal quotation marks omitted). This
principle resolves the question before us.
A
Our charge in this review proceeding is to determine the
meaning of “whistleblower” in §78u–6(h), Dodd-Frank’s
anti-retaliation provision. The definition section of the
statute supplies an unequivocal answer: A “whistleblower”
is “any individual who provides . . . information relating to
a violation of the securities laws to the Commission.”
§78u–6(a)(6) (emphasis added). Leaving no doubt as to
the definition’s reach, the statute instructs that the “defi-
nitio[n] shall apply” “[i]n this section,” that is, throughout
§78u–6. §78u–6(a)(6).
The whistleblower definition operates in conjunction
10 DIGITAL REALTY TRUST, INC. v. SOMERS
Opinion of the Court
with the three clauses of §78u–6(h)(1)(A) to spell out the
provision’s scope. The definition first describes who is
eligible for protection—namely, a whistleblower who
provides pertinent information “to the Commission.”
§78u–6(a)(6). The three clauses of §78u–6(h)(1)(A) then
describe what conduct, when engaged in by a whistle-
blower, is shielded from employment discrimination. See
§78u–6(h)(1)(A)(i)–(iii). An individual who meets both
measures may invoke Dodd-Frank’s protections. But an
individual who falls outside the protected category of
“whistleblowers” is ineligible to seek redress under the
statute, regardless of the conduct in which that individual
engages.
Reinforcing our reading, another whistleblower-
protection provision in Dodd-Frank imposes no require-
ment that information be conveyed to a government agency.
Title 10 of the statute, which created the Consumer
Financial Protection Bureau (CFPB), prohibits discrimina-
tion against a “covered employee” who, among other
things, “provide[s] . . . information to [his or her] employer,
the Bureau, or any other State, local, or Federal, govern-
ment authority or law enforcement agency relating to” a
violation of a law subject to the CFPB’s jurisdiction. 12
U.S. C. §5567(a)(1). To qualify as a “covered employee,”
an individual need not provide information to the CFPB,
or any other entity. See §5567(b) (“covered employee”
means “any individual performing tasks related to the
offering or provision of a consumer financial product or
service”).
“[W]hen Congress includes particular language in one
section of a statute but omits it in another[,] . . . this Court
presumes that Congress intended a difference in mean-
ing.” Loughrin v. United States, 573 U. S. ___, ___ (2014)
(slip op., at 6) (internal quotation marks and alteration
omitted). Congress placed a government-reporting re-
quirement in §78u–6(h), but not elsewhere in the same
Cite as: 583 U. S. ____ (2018) 11
Opinion of the Court
statute. Courts are not at liberty to dispense with the
condition—tell the SEC—Congress imposed.
B
Dodd-Frank’s purpose and design corroborate our com-
prehension of §78u–6(h)’s reporting requirement. The
“core objective” of Dodd-Frank’s robust whistleblower
program, as Somers acknowledges, Tr. of Oral Arg. 45, is
“to motivate people who know of securities law violations
to tell the SEC,” S. Rep. No. 111–176, at 38 (emphasis
added). By enlisting whistleblowers to “assist the Gov-
ernment [in] identify[ing] and prosecut[ing] persons who
have violated securities laws,” Congress undertook to
improve SEC enforcement and facilitate the Commission’s
“recover[y] [of] money for victims of financial fraud.” Id.,
at 110. To that end, §78u–6 provides substantial mone-
tary rewards to whistleblowers who furnish actionable
information to the SEC. See §78u–6(b).
Financial inducements alone, Congress recognized, may
be insufficient to encourage certain employees, fearful of
employer retaliation, to come forward with evidence of
wrongdoing. Congress therefore complemented the Dodd-
Frank monetary incentives for SEC reporting by heighten-
ing protection against retaliation. While Sarbanes-Oxley
contains an administrative-exhaustion requirement, a
180-day administrative complaint-filing deadline, and a
remedial scheme limited to actual damages, Dodd-Frank
provides for immediate access to federal court, a generous
statute of limitations (at least six years), and the oppor-
tunity to recover double backpay. See supra, at 5–6.
Dodd-Frank’s award program and anti-retaliation provi-
sion thus work synchronously to motivate individuals with
knowledge of illegal activity to “tell the SEC.” S. Rep. No.
111–176, at 38.
When enacting Sarbanes-Oxley’s whistleblower regime,
in comparison, Congress had a more far-reaching objec-
12 DIGITAL REALTY TRUST, INC. v. SOMERS
Opinion of the Court
tive: It sought to disturb the “corporate code of silence”
that “discourage[d] employees from reporting fraudulent
behavior not only to the proper authorities, such as the
FBI and the SEC, but even internally.” Lawson, 571 U. S.,
at ___ (slip op., at 4) (internal quotation marks omitted).
Accordingly, the Sarbanes-Oxley anti-retaliation provision
covers employees who report fraud not only to the SEC,
but also to any other federal agency, Congress, or an
internal supervisor. See 18 U.S. C. §1514A(a)(1).
C
In sum, Dodd-Frank’s text and purpose leave no doubt
that the term “whistleblower” in §78u–6(h) carries the
meaning set forth in the section’s definitional provision.
The disposition of this case is therefore evident: Somers
did not provide information “to the Commission” before his
termination, §78u–6(a)(6), so he did not qualify as a “whis-
tleblower” at the time of the alleged retaliation. He is
therefore ineligible to seek relief under §78u–6(h).
III
Somers and the Solicitor General tender a different view
of Dodd-Frank’s compass. The whistleblower definition,
as they see it, applies only to the statute’s award program,
not to its anti-retaliation provision, and thus not, as the
definition plainly states, throughout “this section,” §78u–
6(a). See Brief for Respondent 30; Brief for United States
as Amicus Curiae 10–11. For purposes of the anti-
retaliation provision alone, they urge us to construe the
term “whistleblower” in its “ordinary sense,” i.e., without
any SEC-reporting requirement. Brief for Respondent 18.
Doing so, Somers and the Solicitor General contend,
would align with our precedent, specifically Lawson v.
Suwannee Fruit & S. S. Co., 336 U.S. 198 (1949), and
Utility Air Regulatory Group v. EPA, 573 U. S. ___ (2014).
In those decisions, we declined to apply a statutory defini-
Cite as: 583 U. S. ____ (2018) 13
Opinion of the Court
tion that ostensibly governed where doing so would have
been “incompatible with . . . Congress’ regulatory scheme,”
id., at ___ (slip op., at 18) (internal quotation marks omit-
ted), or would have “destroy[ed] one of the [statute’s]
major purposes,” Suwannee Fruit, 336 U.S., at 201.
This case is of a piece, Somers and the Solicitor General
maintain. Applying the statutory definition here, they
variously charge, would “create obvious incongruities,”
Brief for United States as Amicus Curiae 19 (internal
quotation marks omitted), “produce anomalous results,”
id., at 22, “vitiate much of the [statute’s] protection,” id.,
at 20 (internal quotation marks omitted), and, as the
Court of Appeals put it, narrow clause (iii) of §78u–
6(h)(1)(A) “to the point of absurdity,” Brief for Respondent
35 (quoting 850 F.3d, at 1049). We next address these
concerns and explain why they do not lead us to depart
from the statutory text.
A
It would gut “much of the protection afforded by” the
third clause of §78u–6(h)(1)(a), Somers and the Solicitor
General urge most strenuously, to apply the whistleblower
definition to the anti-retaliation provision. Brief for United
States as Amicus Curiae 20 (internal quotation marks
omitted); Brief for Respondent 28–29. As earlier noted,
see supra, at 4–5, clause (iii) prohibits retaliation against
a “whistleblower” for “making disclosures” to various
persons and entities, including but not limited to the SEC,
to the extent those disclosures are “required or protected
under” various laws other than Dodd-Frank. §78u–
6(h)(1)(A)(iii). Applying the statutory definition of whis-
tleblower, however, would limit clause (iii)’s protection to
“only those individuals who report to the Commission.”
Brief for United States as Amicus Curiae 22.
The plain-text reading of the statute undoubtedly
shields fewer individuals from retaliation than the alter-
14 DIGITAL REALTY TRUST, INC. v. SOMERS
Opinion of the Court
native proffered by Somers and the Solicitor General. But
we do not agree that this consequence “vitiate[s]” clause
(iii)’s protection, id., at 20 (internal quotation marks omit-
ted), or ranks as “absur[d],” Brief for Respondent 35 (in-
ternal quotation marks omitted).6 In fact, our reading
leaves the third clause with “substantial meaning.” Brief
for Petitioner 32.
With the statutory definition incorporated, clause (iii)
protects a whistleblower who reports misconduct both to
the SEC and to another entity, but suffers retaliation
because of the latter, non-SEC, disclosure. That would be
so, for example, where the retaliating employer is un-
aware that the employee has alerted the SEC. In such a
case, without clause (iii), retaliation for internal reporting
would not be reached by Dodd-Frank, for clause (i) applies
only where the employer retaliates against the employee
“because of ” the SEC reporting. §78u–6(h)(1)(A). More-
over, even where the employer knows of the SEC reporting,
the third clause may operate to dispel a proof problem:
The employee can recover under the statute without hav-
ing to demonstrate whether the retaliation was motivated
by the internal report (thus yielding protection under
clause (iii)) or by the SEC disclosure (thus gaining protec-
tion under clause (i)).
While the Solicitor General asserts that limiting the
protections of clause (iii) to dual reporters would “shrink
to insignificance the [clause’s] ban on retaliation,” Brief for
United States as Amicus Curiae 22 (internal quotation
marks omitted), he offers scant evidence to support that
assertion. Tugging in the opposite direction, he reports
that approximately 80 percent of the whistleblowers who
received awards in 2016 “reported internally before report-
——————
6 The Solicitor General, unlike Somers, acknowledges that it would
not be absurd to apply the “whistleblower” definition to the anti-
retaliation provision. Tr. of Oral Arg. 52.
Cite as: 583 U. S. ____ (2018) 15
Opinion of the Court
ing to the Commission.” Id., at 23. And Digital Realty
cites real-world examples of dual reporters seeking Dodd-
Frank or Sarbanes-Oxley recovery for alleged retaliation.
See Brief for Petitioner 33, and n. 4 (collecting cases).
Overlooked by Somers and the Solicitor General, in dual-
reporting cases, retaliation not prompted by SEC disclo-
sures (and thus unaddressed by clause (i)) is likely com-
monplace: The SEC is required to protect the identity of
whistleblowers, see §78u–6(h)(2)(A), so employers will
often be unaware that an employee has reported to the
Commission. In any event, even if the number of individ-
uals qualifying for protection under clause (iii) is relatively
limited, “[i]t is our function to give the statute the effect
its language suggests, however modest that may be.”
Morrison v. National Australia Bank Ltd., 561 U.S. 247,
270 (2010).
B
Somers and the Solicitor General express concern that
our reading would jettison protection for auditors, attor-
neys, and other employees subject to internal-reporting
requirements. See Brief for Respondent 35; Brief for
United States as Amicus Curiae 21. Sarbanes-Oxley, for
example, requires auditors and attorneys to report certain
information within the company before making disclosures
externally. See 15 U.S. C. §§78j–1(b), 7245; 17 CFR
§205.3. If the whistleblower definition applies, Somers
and the Solicitor General fear, these professionals will be
“le[ft] . . . vulnerable to discharge or other retaliatory
action for complying with” their internal-reporting obliga-
tions. Brief for United States as Amicus Curiae 22 (inter-
nal quotation marks omitted).
Our reading shields employees in these circumstances,
however, as soon as they also provide relevant information
to the Commission. True, such employees will remain
ineligible for Dodd-Frank’s protection until they tell the
16 DIGITAL REALTY TRUST, INC. v. SOMERS
Opinion of the Court
SEC, but this result is consistent with Congress’ aim to
encourage SEC disclosures. See S. Rep. No. 111–176, at
38; supra, at 3–4, 11. Somers worries that lawyers and
auditors will face retaliation quickly, before they have a
chance to report to the SEC. Brief for Respondent 35–36.
But he offers nothing to show that Congress had this
concern in mind when it enacted §78u–6(h). Indeed, Con-
gress may well have considered adequate the safeguards
already afforded by Sarbanes-Oxley, protections specifi-
cally designed to shield lawyers, accountants, and similar
professionals. See Lawson, 571 U. S., at ___ (slip op.,
at 17).
C
Applying the whistleblower definition as written, Som-
ers and the Solicitor General further protest, will create
“an incredibly unusual statutory scheme”: “[I]dentical
misconduct”—i.e., retaliating against an employee for
internal reporting—will “go punished or not based on the
happenstance of a separate report” to the SEC, of which
the wrongdoer may “not even be aware.” Brief for Re-
spondent 37–38. See also Brief for United States as Ami-
cus Curiae 24. The upshot, the Solicitor General warns,
“would [be] substantially diminish[ed] Dodd-Fran[k] de-
terrent effect.” Ibid.
Overlooked in this protest is Dodd-Frank’s core objec-
tive: to prompt reporting to the SEC. Supra, at 3–4, 11.
In view of that precise aim, it is understandable that the
statute’s retaliation protections, like its financial rewards,
would be reserved for employees who have done what
Dodd-Frank seeks to achieve, i.e., they have placed infor-
mation about unlawful activity before the Commission to
aid its enforcement efforts.
D
Pointing to another purported anomaly attending the
Cite as: 583 U. S. ____ (2018) 17
Opinion of the Court
reading we adopt today, the Solicitor General observes
that neither the whistleblower definition nor §78u–6(h)
contains any requirement of a “temporal or topical connec-
tion between the violation reported to the Commission and
the internal disclosure for which the employee suffers
retaliation.” Brief for United States as Amicus Curiae 25.
It is therefore possible, the Solicitor General posits, that
“an employee who was fired for reporting accounting fraud
to his supervisor in 2017 would have a cause of action
under [§78u–6(h)] if he had reported an insider-trading
violation by his previous employer to the Commission in
2012.” Ibid. For its part, Digital Realty agrees that this
scenario could arise, but does not see it as a cause for
concern: “Congress,” it states, “could reasonably have
made the policy judgment that individuals who report
securities-law violations to the SEC should receive broad
protection over time against retaliation for a variety of
disclosures.” Reply Brief 11.
We need not dwell on the situation hypothesized by the
Solicitor General, for it veers far from the case before us.
We note, however, that the interpretation offered by Som-
ers and the Solicitor General—i.e., ignoring the statutory
definition when construing the anti-retaliation provision—
raises an even thornier question about the law’s scope.
Their view, which would not require an employee to pro-
vide information relating to a securities-law violation to
the SEC, could afford Dodd-Frank protection to an em-
ployee who reports information bearing no relationship
whatever to the securities laws. That prospect could be
imagined based on the broad array of federal statutes and
regulations cross-referenced by clause (iii) of the anti-
retaliation provision. E.g., 18 U.S. C. §1513(e) (criminal-
izing retaliation for “providing to a law enforcement officer
any truthful information relating to the commission . . . of
any Federal offense” (emphasis added)); see supra, at 5,
and n. 2. For example, an employee fired for reporting a
18 DIGITAL REALTY TRUST, INC. v. SOMERS
Opinion of the Court
coworker’s drug dealing to the Federal Bureau of Investi-
gation might be protected. Brief for Petitioner 38. It
would make scant sense, however, to rank an FBI drug-
trafficking informant a whistleblower under Dodd-Frank,
a law concerned only with encouraging the reporting of
“securities law violations.” S. Rep. No. 111–176, at 38
(emphasis added).
E
Finally, the interpretation we adopt, the Solicitor Gen-
eral adds, would undermine not just clause (iii) of §78u–
6(h)(1)(A), but clause (ii) as well. Clause (ii) prohibits
retaliation against a whistleblower for “initiating, testify-
ing in, or assisting in any investigation or . . . action of the
Commission based upon” information conveyed to the SEC
by a whistleblower in accordance with the statute. §78u–
6(h)(1)(A)(ii). If the whistleblower definition is applied to
§78u–6(h), the Solicitor General states, “an employer could
fire an employee for giving . . . testimony [to the SEC] if
the employee had not previously reported to the Commis-
sion online or through the specified written form”—i.e., the
methods currently prescribed by Rule 21F–9 for a whistle-
blower to provide information to the Commission. Brief
for United States as Amicus Curiae 20–21 (citing 17 CFR
§240.21F–9(a)(1)–(2)).
But the statute expressly delegates authority to the SEC
to establish the “manner” in which information may be
provided to the Commission by a whistleblower. See
§78u–6(a)(6). Nothing in today’s opinion prevents the
agency from enumerating additional means of SEC report-
ing—including through testimony protected by clause (ii).
IV
For the foregoing reasons, we find the statute’s defini-
tion of “whistleblower” clear and conclusive. Because
“Congress has directly spoken to the precise question at
Cite as: 583 U. S. ____ (2018) 19
Opinion of the Court
issue,” Chevron, 467 U.S., at 842, we do not accord defer-
ence to the contrary view advanced by the SEC in Rule
21F–2. See 17 CFR §240.21F–2(b)(1); supra, at 6–7. The
statute’s unambiguous whistleblower definition, in short,
precludes the Commission from more expansively inter-
preting that term. See Burgess, 553 U.S., at 130.
* * *
The judgment of the Court of Appeals for the Ninth
Circuit is reversed, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
Cite as: 583 U. S. ____ (2018) 1
SOTOMAYOR, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1276
_________________
DIGITAL REALTY TRUST, INC., PETITIONER v.
PAUL SOMERS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[February 21, 2018]
JUSTICE SOTOMAYOR, with whom JUSTICE BREYER joins,
concurring.
I join the Court’s opinion in full. I write separately only
to note my disagreement with the suggestion in my col-
league’s concurrence that a Senate Report is not an appro-
priate source for this Court to consider when interpreting
a statute.
Legislative history is of course not the law, but that does
not mean it cannot aid us in our understanding of a law.
Just as courts are capable of assessing the reliability and
utility of evidence generally, they are capable of assessing
the reliability and utility of legislative-history materials.
Committee reports, like the Senate Report the Court
discusses here, see ante, at 3–4, 11–12, 16–18, are a par-
ticularly reliable source to which we can look to ensure our
fidelity to Congress’ intended meaning. See Garcia v.
United States, 469 U.S. 70, 76 (1984) (“In surveying legis-
lative history we have repeatedly stated that the authori-
tative source for finding the Legislature’s intent lies in the
Committee Reports on the bill, which ‘represen[t] the
considered and collective understanding of those Con-
gressmen involved in drafting and studying proposed
legislation’ ” (quoting Zuber v. Allen, 396 U.S. 168, 186
(1969))). Bills presented to Congress for consideration are
generally accompanied by a committee report. Such re-
2 DIGITAL REALTY TRUST, INC. v. SOMERS
SOTOMAYOR, J., concurring
ports are typically circulated at least two days before a bill
is to be considered on the floor and provide Members of
Congress and their staffs with information about “a bill’s
context, purposes, policy implications, and details,” along
with information on its supporters and opponents. R.
Katzmann, Judging Statutes 20, and n. 62 (2014) (citing A.
LaRue, Senate Manual Containing the Standing Rules,
Orders, Laws, and Resolutions Affecting the Business of
the United States Senate, S. Doc. No. 107–1, p. 17 (2001)).
These materials “have long been important means of
informing the whole chamber about proposed legislation,”
Katzmann, Judging Statutes, at 19, a point Members
themselves have emphasized over the years.* It is thus no
surprise that legislative staffers view committee and
conference reports as the most reliable type of legislative
history. See Gluck & Bressman, Statutory Interpretation
From the Inside—An Empirical Study of Congressional
Drafting, Delegation and the Canons: Part I, 65 Stan.
L. Rev. 901, 977 (2013).
Legislative history can be particularly helpful when a
——————
* See, e.g., Hearings on the Nomination of Judge Antonin Scalia, To
Be Associate Justice of the Supreme Court of the United States before
the Senate Committee on the Judiciary, 99th Cong., 2d Sess., 65–66
(1986) (Sen. Charles E. Grassley) (“[A]s one who has served in Congress
for 12 years, legislative history is very important to those of us here
who want further detailed expression of that legislative intent”); Mikva,
Reading and Writing Statutes, 28 S. Tex. L. Rev. 181, 184 (1986) (“The
committee report is the bone structure of the legislation. It is the road
map that explains why things are in and things are out of the statute”);
Brudney, Congressional Commentary on Judicial Interpretations of
Statutes: Idle Chatter or Telling Response? 93 Mich. L. Rev. 1, 28
(1994) (compiling the views of former Members on “the central im-
portance of committee reports to their own understanding of statutory
text”). In fact, some Members “are more likely to vote . . . based on a
reading of the legislative history than on a reading of the statute itself.”
Gluck & Bressman, Statutory Interpretation From the Inside—An
Empirical Study of Congressional Drafting, Delegation and the Canons:
Part I, 65 Stan. L. Rev. 901, 968 (2013).
Cite as: 583 U. S. ____ (2018) 3
SOTOMAYOR, J., concurring
statute is ambiguous or deals with especially complex
matters. But even when, as here, a statute’s meaning can
clearly be discerned from its text, consulting reliable
legislative history can still be useful, as it enables us to
corroborate and fortify our understanding of the text. See,
e.g., Tapia v. United States, 564 U.S. 319, 331–332 (2011);
Carr v. United States, 560 U.S. 438, 457–458 (2010).
Moreover, confirming our construction of a statute by
considering reliable legislative history shows respect for
and promotes comity with a coequal branch of Govern-
ment. See Katzmann, Judging Statutes, at 35–36.
For these reasons, I do not think it wise for judges to
close their eyes to reliable legislative history—and the
realities of how Members of Congress create and enact
laws—when it is available.
Cite as: 583 U. S. ____ (2018) 1
Opinion of THOMAS, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1276
_________________
DIGITAL REALTY TRUST, INC., PETITIONER v.
PAUL SOMERS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[February 21, 2018]
JUSTICE THOMAS, with whom JUSTICE ALITO and
JUSTICE GORSUCH join, concurring in part and concurring
in the judgment.
I join the Court’s opinion only to the extent it relies on
the text of the Dodd-Frank Wall Street Reform and Con-
sumer Protection Act (Dodd-Frank), 124 Stat. 1376. The
question in this case is whether the term “whistleblower”
in Dodd-Frank’s antiretaliation provision, 15 U.S. C.
§78u–6(h)(1), includes a person who does not report infor-
mation to the Securities and Exchange Commission. The
answer is in the definitions section of the statute, which
states that the term “whistleblower” means a person who
provides “information relating to a violation of the securi-
ties laws to the Commission.” §78u–6(a)(6). As the Court
observes, this statutory definition “resolves the question
before us.” Ante, at 9. The Court goes on, however, to
discuss the supposed “purpose” of the statute, which it
primarily derives from a single Senate Report. See ante,
at 3–4, 11–12, 16–18. Even assuming a majority of Con-
gress read the Senate Report, agreed with it, and voted for
Dodd-Frank with the same intent, “we are a government
of laws, not of men, and are governed by what Congress
enacted rather than by what it intended.”* Lawson v.
——————
* For what it is worth, I seriously doubt that a committee report is a
2 DIGITAL REALTY TRUST, INC. v. SOMERS
Opinion of THOMAS, J.
——————
“particularly reliable source” for discerning “Congress’ intended mean-
ing.” Ante, at 1 (SOTOMAYOR, J., concurring). The following exchange
on the Senate floor is telling:
“Mr. ARMSTRONG. Mr. President, will the Senator tell me whether
or not he wrote the committee report?
“Mr. DOLE. Did I write the committee report?
“Mr. ARMSTRONG. Yes.
“Mr. DOLE. No; the Senator from Kansas did not write the com-
mittee report.
“Mr. ARMSTRONG. Did any Senator write the committee report?
“Mr. DOLE. I have to check.
“Mr. ARMSTRONG. Does the Senator know of any Senator who
wrote the committee report?
“Mr. DOLE. I might be able to identify one, but I would have to
search. I was here all during the time it was written, I might say, and
worked carefully with the staff as they worked. . . .
“Mr. ARMSTRONG. Mr. President, has the Senator from Kansas,
the chairman of the Finance Committee, read the committee report in
its entirety?
“Mr. DOLE. I am working on it. It is not a bestseller, but I am work-
ing on it.
“Mr. ARMSTRONG. Mr. President, did members of the Finance
Committee vote on the committee report?
“Mr. DOLE. No.
“Mr. ARMSTRONG. . . . The report itself is not considered by the
Committee on Finance. It was not subject to amendment by the Com-
mittee on Finance. It is not subject to amendment now by the Senate.
. . . If there were matter within this report which was disagreed to by
the Senator from Colorado or even by a majority of all Senators, there
would be no way for us to change the report. I could not offer an
amendment tonight to amend the committee report. . . . [ L]et me just
make the point that this is not the law, it was not voted on, it is not
subject to amendment, and we should discipline ourselves to the task of
expressing congressional intent in the statute.” Hirschey v. FERC, 777
F.2d 1, 7–8, n. 1 (CADC 1985) (Scalia, J., concurring) (quoting 128
Cong. Rec. 16918–16919 (1982)). See also Kethledge, Ambiguities and
Agency Cases: Reflections After (Almost) Ten Years on the Bench, 70
Vand. L. Rev. En Banc 315, 317–318 (2017) (describing his experience
as a Senate staffer who drafted legislative history “like being a teenag-
er at home while your parents are away for the weekend: there was no
supervision. I was able to write more or less what I pleased. . . . [ M ]ost
members of Congress . . . have no idea at all about what is in the
legislative history for a particular bill”).
Cite as: 583 U. S. ____ (2018) 3
Opinion of THOMAS, J.
FMR LLC, 571 U.S. 429, ___ (2014) (Scalia, J., concurring
in part and concurring in judgment) (slip op., at 1). And
“it would be a strange canon of statutory construction that
would require Congress to state in committee reports . . .
that which is obvious on the face of a statute.” Harrison v.
PPG Industries, Inc., 446 U.S. 578, 592 (1980). For these
reasons, I am unable to join the portions of the Court’s
opinion that venture beyond the statutory text.