Comment on Whistling Loud and Clear: Applying Chevron to Subsection 21F of Dodd–Frank

Sarah C. Haan, Washington and Lee University School of Law


In his prizewinning note, Whistling Loud and Clear: Applying Chevron to Subsection 21F of Dodd–Frank, Mr. Bennett attempts to resolve a circuit split between the Fifth Circuit Court of Appeals, and the Second and Ninth Circuit Courts of Appeals concerning our federal whistleblower protection regime. Unfortunately, in Somers, the Court did not reach the Chevron issue discussed by Mr. Bennett because it determined that the Dodd–Frank provision was unambiguous. Although some of Mr. Bennett’s core points were not discussed by the Court in Somers, his Note provides important analysis on issues raised by the case. Mr. Bennett’s Note does a strong job of exploring the textual issues at play, and he identifies Chevron issues likely to arise in a future case. He also grapples with the policy implications of his conclusions, noting that a real-world consequence of the outcome he advocates may be that whistleblowers are discouraged from reporting internally first or perhaps even at all. 23 Since the Supreme Court ultimately reached the result that Mr. Bennett advocated, his discussion of the policy implications takes on new importance. I very much appreciate the invitation to engage in a scholarly discussion about Mr. Bennett’s Note and our federal whistleblowing regime.