Wednesday, November 29, 2017

Digital Realty Trust, Inc. v. Somers: So judges don't make law after all -- sort of anyway (Updated 2/21/18)

The oral argument in Digital Realty Trust, Inc. v. Somers highlights the extraordinary presumption applied by a court that Congress means what it says when it enacts a statute. And in so doing, it lends some credence to the oft-repeated claim that judges don't make law. In Digital Realty Trust, the issue is whether the Dodd-Frank Act prohibits retaliation against a whistleblower who has only reported internally about a potential violation of securities law. As written, the act seems not to apply to such individuals and to require reporting to the Securities and Exchange Commission, but that leads to an "anomalous" result because it means that an individual who reports internally is not protected if he has never filed a report with the SEC but is protected if he filed a report many years ago about an entirely different matter. Such an "anomaly," however, does not appear to be enough to allow a court to ignore clear statutory language. As suggested by Justice Ginsburg, a court is bound to apply the statutory language as written unless the result is not merely anomalous but also absurd. And here, it does not appear that anyone was arguing that the result -- even if, in Justice Kagan's words, "[i]t's odd; it's peculiar; it's probably not what Congress meant" -- reached the point of being absurd.

Update - 2/21/18 - Consistent with the sentiments expressed by Justices during oral argument, the Supreme Court ruled 9-0 that the Dodd-Frank Act only protects whistleblowers who report to the SEC.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.