Defendant's Attorney: Thomas Stephen Bradley, Joseph Michael Gagliardo, Darin Matthew Williams
Description: Jeffrey Martensen used to be
a supervisor in the Chicago Stock Exchange’s unit responsible
for examining compliance with trading regulations. He
was fired in mid-2016 and contends in this suit that his discharge violates 15 U.S.C. §78u–6(h), a part of the Dodd-
Frank Act that protects whistleblowers.
Martensen’s complaint does not allege that he reported to
the Securities and Exchange Commission any fraud or other
unlawful activity at the Exchange. The district judge summarily
dismissed the suit, ruling that only a person who has
reported “a violation of the securities laws to the Commission”
(§78u–6(a)(6)) is covered by §78u–6(h). See 2017 U.S.
Dist. LEXIS 87621 (N.D. Ill. June 7, 2017). The judge recognized
that some courts have held that a report to the SEC is
unnecessary but thought that view incompatible with §78u–
6(a)(6). Martensen proposed to file an amended complaint
alleging that he had indeed reported fraud to the SEC, but
the judge blocked that step, declaring that the absence of detail
made an amendment pointless.
Every plaintiff is entitled to file one amended complaint
within 21 days of the original complaint, an answer, or a motion
to dismiss. Fed. R. Civ. P. 15(a)(1). Martensen was eligible
under that rule, no majer what the judge thought of the
amendment’s merit. An amendment authorized by Rule
15(a)(1) must be accepted. But the question remains whether
the decision was prejudicial to Martensen. If the judge
would have dismissed the amended complaint immediately
after its filing, a remand would be pointless.
The Supreme Court has under advisement a case posing
the question whether a whistleblower’s protection depends
on complaining directly to the SEC. Digital Realty Trust, Inc.
v. Somers, No. 16–1276 (argued Nov. 28, 2017). And on the
day Martensen’s appeal was argued, this court issued its
opinion in Verfuerth v. Orion Energy Systems, Inc., 879 F.3d
789 (7th Cir. 2018). Verfuerth holds that a Dodd-Frank whisNo.
17-2660 3
tleblower case need not wait for the Court’s decision in Digital
Realty Trust when the plaintiff’s own filings show that he
has not reported “a violation of the securities laws” (§78u–
6(a)(6)) to anyone at all.
Both sides have filed post-argument memoranda discussing
Verfuerth. The Stock Exchange contends that it requires
affirmance. Martensen, by contrast, contends that it supports
him because he has reported fraud to the SEC. He tells us
that his amended complaint would allege that on January 13,
2014, he reported securities fraud by filling out a Form TCR
on the Commission’s website.
So far, so good. But Martensen adds that this report was
unrelated to his discharge. His memorandum states: “It is …
important to understand that … Martensen does not allege
that he was terminated from the [Stock Exchange] due to his
SEC form TCR submission” (emphasis in original). Martensen
traces his discharge to an internal complaint filed with
the Stock Exchange itself on April 29, 2016, in which he accused
his superior of instructing Martensen’s unit to act in a
way that he deems inconsistent with one of the Exchange’s
internal rules.
In other words, Martensen treats a report to the SEC as
conferring a status—like a whistleblower lapel pin—that
prevents employers from responding adversely to later reports
that do not concern fraud or any other violation of the
securities laws and never reach the SEC. As Martensen sees
things, the act that makes one a whistleblower need not
affect the eventual adverse action. That would make §78u–
6(h) unique in federal law. The retaliation doctrine in employment-
discrimination law covers only a protected act that
causes the adverse action. See, e.g., 42 U.S.C. §2000e–3(a);
4 No. 17-2660
University of Texas Southwestern Medical Center v. Nassar, 133
S. Ct. 2517 (2013). Other anti-retaliation rules are treated similarly;
causation is built into the definition of the word “retaliate.”
Federal law uses causation in many senses, from “motivating
factor” (some role) to but-for causation (an essential
role) to proximate causation (an essential and closely connected
role). See, e.g., Paroline v. United States, 134 S. Ct. 1710,
1722–26 (2014) (discussing these many shadings of causation);
Nassar (holding that but-for causation is essential under
§2000e–3(a)). As far as we know, none of the many legal
theories grouped under the heading “retaliation” dispenses
with all causal relation between the act that justifies the label
“whistleblower” and the adverse employment action. Subsection
78u–6(h) is captioned “Protection of whistleblowers”
and paragraph (1) “Prohibition against retaliation”. In context
this means “retaliation for being a whistleblower.” Martensen
disclaims any contention that the Exchange retaliated
against him for the act that made him a whistleblower, and
unless §78u–6(h) is to stand alone in the American legal canon,
that is dispositive against him.
Martensen rests his claim on §78u–6(h)(1)(A)(iii). To provide
context, we reproduce all of subparagraph (A):
No. 17-2660 5
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–1(m) of this title, section
1513(e) of title 18, and any other law, rule, or regulation subject
to the jurisdiction of the Commission.
Clauses (i) and (ii) specify acts that may make someone a
whistleblower under the definition of §78u–6(a)(6), because
they entail reports to the Commission. Clause (iii) is a principal
basis for the respondent’s argument (joined by the Solicitor
General) in Digital Realty Trust that a report to the SEC
is unnecessary; some of the disclosures within clause (iii) do
not reach the Commission, so if §78u–6(a)(6) makes a report
to the Commission essential then some kinds of reports mentioned
in clause (iii) are unprotected. It follows, respondent
and the SG maintain, that a report to the SEC is not required
in the first place. Martensen offers a different way to understand
clause (iii). He contends that it protects anyone with
whistleblower status (based on an earlier, unrelated report to
the SEC) from any retaliation for disclosures covered in
clause (iii) whether or not they concern violations of the securities
laws and whether or not they reach the SEC.
It is linguistically possible to read clause (iii) that way,
even though doing so would mean that the whistleblower
6 No. 17-2660
report no longer plays a causal role. Perhaps the Supreme
Court in Digital Realty Trust will decide whether that is the
proper way to understand clause (iii). Our opinion in Verfuerth
concluded that the allegations must concern fraud or
other violations of federal securities law; that view is incompatible
with Martensen’s submission. But we need not try to
anticipate the decision in Digital Realty Trust or put this appeal
on hold until the Supreme Court has spoken. For Martensen
has not argued that his internal complaint was “required
or protected” by any particular rule of the Chicago
Stock Exchange.
Martensen does contend that every rule of the Stock Exchange
is “subject to the jurisdiction of the Commission” in
the sense that the SEC can block or amend rules of registered
securities exchanges. See 15 U.S.C. §§ 78f, 78s. Section
78s(g)(1)(A) also directs registered exchanges to comply with
their own rules. But that’s not enough. The only disclosures
covered by clause (iii) are those “required or protected” by
one of the statutes or rules listed in the rest of that clause.
Here Martensen’s case breaks down, for he does not identify
any statute, rule, or regulation that either “requires” or “protects”
his intra-Exchange complaint about his superior’s directive.
Although he asserts that the report was “required by
rule” he does not cite or quote any rule. Then he cites generally
two sections of the Exchange’s Employee Handbook
(one labeled “The Exchange’s Open-Door Policy” and the
other “Business Ethics Policies”). He does not tell us what
either section requires or protects—nor does he contend that
the Employee Handbook is subject to the SEC’s statutory
approval or amendment power.
No. 17-2660 7
Complaints need not plead law. See, e.g., Johnson v. Shelby,
135 S. Ct. 346 (2014). But appellate filings must cover material
legal issues. Martensen needed to identify a rule, subject
to the SEC’s jurisdiction, that either “required” or “protected”
his internal complaint about his superior’s directive.
He has not done so. It may be that some rule does require or
protect the sort of report that Martensen made, but appellate
judges need not take unguided tours through stock exchanges’
regulations in the hope that something will turn
up. That’s a job for counsel—and Martensen, though representing
himself, is a lawyer. Because Martensen has not
shown that his grievance was within the scope of clause (iii),
other questions can be left to Digital Realty Trust (and, if not
answered there, to some future case).
