UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DIGITAL REALTY TRUST INC.,
a Maryland corporation;
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Argued and Submitted November 16, 2016
San Francisco, California
Filed March 8, 2017
Before: Mary M. Schroeder, Kim McLane Wardlaw, and
John B. Owens, Circuit Judges.
Opinion by Judge Schroeder;
Dissent by Judge Owens
The panel affirmed the district court’s denial of the
defendant’s motion to dismiss a whistleblower claim brought
under the Dodd-Frank Act’s anti-retaliation provision.
Following the approach of the Second Circuit, rather than
the Fifth Circuit, the panel held that, in using the term
“whistleblower,” Congress did not intend to limit protections
to those who disclose information to the Securities and
Exchange Commission. Rather, the anti-retaliation provision
also protects those who were fired after making internal
disclosures of alleged unlawful activity under the SarbanesOxley
Act and other laws, rules, and regulations. The panel
agreed with the Second Circuit that, even if the use of the
word “whistleblower” in a last-minute addition to the antiretaliation
provision created uncertainty, an SEC regulation
resolved any ambiguity, and was entitled to deference.
Dissenting, Judge Owens agreed with the Fifth Circuit.
He wrote that King v. Burwell, 135 S. Ct. 2480 (2015)
(holding that terms can have different operative consequences
in different contexts), on which the majority and the Second
Circuit relied in part, should be quarantined to the specific
facts of that case.