Opposition Brief — Jackie Hosang Lawson, Petitioner v. FMR LLC, dba Fidelity Investments, et al.

No. 19-2

IN THE

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_______________

JACKIE HOSANG LAWSON,

Petitioner,

v.

FMR LLC, ET AL.,

Respondents.

_______________

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The First Circuit

_______________

BRIEF IN OPPOSITION

_______________

MARK A. PERRY

Counsel of Record

JOSHUA M. WESNESKI

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 955-8500

MPerry@gibsondunn.com

Counsel for Respondents

QUESTIONS PRESENTED

1. Whether the court of appeals correctly held

that the district court did not abuse its discretion in

excluding the testimony of petitioner’s expert because

his proposed testimony, which focused on the meaning

of statutes and regulations, would not be helpful to the

jury.

2. Whether the court of appeals correctly held

that the district court did not abuse its discretion in

denying petitioner’s application for attorneys’ fees because, having lost the jury verdict, she is not a “prevailing” party.

ii

RULE 29.6 STATEMENT

Counsel for respondents certifies as follows:

FMR LLC is not a public company. No publicly

held corporation owns 10% or more of FMR LLC.

FMR Corp. was merged into a limited liability

company prior to the filing of the complaint in this action. FMR LLC is the surviving entity; FMR Corp. no

longer exists.

Fidelity Brokerage Services LLC is a wholly

owned subsidiary of Fidelity Global Brokerage Group,

Inc.

Fidelity Global Brokerage Group, Inc. is not a

public company. No publicly traded company owns

10% or more of Fidelity Global Brokerage Group, Inc.

iii

RULE 14.1(b)(iii) STATEMENT

Counsel for respondents is not aware of any proceedings directly related to the case in this Court.

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..................................... i

RULE 29.6 STATEMENT ........................................ ii

RULE 14.1(b)(iii) STATEMENT ............................. iii

TABLE OF AUTHORITIES ..................................... v

OPINIONS BELOW ................................................. 1

STATEMENT ........................................................... 1

ARGUMENT ............................................................ 6

I.

THE EXCLUSION OF PETITIONER’S LEGAL

EXPERT DOES NOT WARRANT REVIEW ................ 6

II. THE DENIAL OF ATTORNEYS’ FEES TO A

LOSING PARTY DOES NOT WARRANT REVIEW.... 10

CONCLUSION ....................................................... 15

v

TABLE OF AUTHORITIES

Page(s)

Cases

Adams v. New England Scaffolding,

Inc.,

No. 13-CV-12629, 2015 WL 9412518

(D. Mass. Dec. 22, 2015) ........................................ 9

Aguilar v. Int’l Longshoremen’s Union

Local No. 10,

966 F.2d 443 (9th Cir. 1992) .................................. 8

Berry v. City of Detroit,

25 F.3d 1342 (6th Cir. 1994) .................................. 8

Buckhannon Bd. & Care Home, Inc. v.

W. Va. Dep’t of Health & Human

Res.,

532 U.S. 598 (2001) .............................................. 12

Bunting v. Mellen,

541 U.S. 1019 (2004) .............................................. 9

Burkhart v. Wash. Metro. Area Transit

Auth.,

112 F.3d 1207 (D.C. Cir. 1997) .............................. 8

Cottillion v. United Ref. Co.,

781 F.3d 47 (3d Cir. 2015) ..................................... 7

CRST Van Expedited, Inc. v. EEOC,

136 S. Ct. 1642 (2016) .......................................... 11

vi

Daubert v. Merrell Dow Pharm., Inc.,

509 U.S. 579 (1993) ................................................ 7

Davis v. United States,

417 U.S. 333 (1974) .............................................. 10

Day v. Staples, Inc.,

555 F.3d 42 (1st Cir. 2009) .................................... 2

Gen. Elec Co. v. Joiner,

522 U.S. 136 (1997) ................................................ 6

Gomez v. Rivera Rodriguez,

344 F.3d 103 (1st Cir. 2003) .................................. 9

Hensley v. Eckerhart,

461 U.S. 424 (1983) .............................................. 11

Hewitt v. Helms,

482 U.S. 755 (1987) ........................................ 11, 12

Kumho Tire Co. v. Carmichael,

526 U.S. 137 (1999) ................................................ 7

Lawson v. FMR LLC,

571 U.S. 429 (2014) ................................................ 1

Marx & Co. v. Diners’ Club Inc.,

550 F.2d 505 (2d Cir. 1977) ................................... 7

Nieves-Villanueva v. Soto-Rivera,

133 F.3d 92 (1st Cir. 1997) .................................... 7

Nolan v. Boeing Co.,

919 F.2d 1058 (5th Cir. 1990) .............................. 13

vii

Pub. Affairs Assocs., Inc. v. Rickover,

369 U.S. 111 (1962) .............................................. 12

Rhodes v. Stewart,

488 U.S. 1 ....................................................... 12, 13

Rice v. Sioux City Mem’l Park Cemetery,

349 U.S. 70 (1955) .................................................. 6

Snap-Drape, Inc. v. Comm’r,

98 F.3d 194 (5th Cir. 1996) .................................... 7

Sole v. Wyner,

551 U.S. 74 (2007) ................................................ 12

Tex. State Teachers Ass’n v. Garland

Indep. Sch. Dist.,

489 U.S. 782 (1989) .............................................. 11

United States v. Barile,

286 F.3d 749 (4th Cir. 2002) .................................. 7

United States v. Olano,

507 U.S. 725 (1993) .............................................. 14

Wadler v. Bio-Rad Labs., Inc.,

916 F.3d 1176 (9th Cir. 2019) ................................ 2

Wisniewski v. United States,

353 U.S. 901 (1957) .............................................. 10

Statutes

18 U.S.C. § 1514A(a) ................................................. 13

18 U.S.C. § 1514A(a)(1) ............................................. 13

viii

18 U.S.C. § 1514A(b)(1) ....................................... 13, 14

18 U.S.C. § 1514A(c) .............................................. 2, 10

18 U.S.C. § 1514A(c)(1) ............................................. 13

42 U.S.C. § 1988(b) .................................................... 11

52 U.S.C. § 10310(e) .................................................. 11

Rules

Fed. R. Evid. 702(a) ..................................................... 6

Sup. Ct. R. 10 ............................................................... 6

BRIEF IN OPPOSITION

Respondents respectfully submit that the petition

for a writ of certiorari should be denied.

OPINIONS BELOW

The March 18, 2019 judgment of the court of appeals is unreported. Pet. App. 1a–5a. The July 12,

2018 opinion of the district court is reported at 320 F.

Supp. 3d 249. Pet. App. 15a–19a. The judgment of

the district court is unreported. Pet. App. 6a.

STATEMENT

Petitioner is a former employee of respondent Fidelity Brokerage Services LLC, which provides services to the Fidelity family of mutual funds. She alleged that respondents violated the whistleblower

protections of the Sarbanes-Oxley Act, 18

U.S.C. § 1514A, by constructively terminating her after she reported supposed violations of federal law to

her superiors.

This Court granted certiorari earlier in this litigation to decide whether an employee of a privately held

contractor that performs work for a public company

may bring suit under the Sarbanes-Oxley Act. See

Lawson v. FMR LLC, 571 U.S. 429, 433 (2014). This

Court answered that question in the affirmative,

meaning that petitioner’s case could proceed past a

motion to dismiss, and remanded the case for further

proceedings. See id. at 459.

On remand, petitioner’s claim proceeded to a trial

on the merits. Before trial, the district court excluded

the proposed testimony of petitioner’s “legal” expert.

At trial, petitioner lost. Pet. App. 7a. As predicates

2

to her whistleblower claim, petitioner bore the burden

of proving that she had both a subjective and an objectively reasonable belief that the conduct she reported to her superiors constituted a violation of federal law. See, e.g., Wadler v. Bio-Rad Labs., Inc., 916

F.3d 1176, 1188 (9th Cir. 2019); Day v. Staples, Inc.,

555 F.3d 42, 54 (1st Cir. 2009). On the basis of the

evidence before it, the jury concluded that petitioner

had failed to prove either of those predicates and

reached no other questions on the verdict form. Pet.

App. 7a–14a. After trial, the district court denied petitioner’s request for an award of attorneys’ fees on the

ground that she is not a “prevailing” party. Pet. App.

15a–19a; see 18 U.S.C. § 1514A(c).

On appeal, the First Circuit affirmed both the

judgment and the denial of attorneys’ fees. Pet. App.

1a–5a.

In her petition for a writ of certiorari, petitioner

does not dispute that the evidence at trial permitted

the jury to find that she failed to prove the essential

predicates of her whistleblower claim under the Sarbanes-Oxley Act. Instead, she challenges only two discrete rulings by the district court, both of which were

reviewed and affirmed by the First Circuit under an

abuse-of-discretion standard:

First, petitioner argues that the First Circuit

erred in affirming the district court’s order precluding

her expert, Professor Mercer E. Bullard, from testifying to the jury about “the Securities Exchange and

Commission 15(c) Process, and the regulation [sic] applicability of Rule 12b-1.” Pet. 6–7. Respondents

moved in the district court to exclude Professor

Bullard’s testimony on the ground that it would “intrude on the province of the Court to instruct the jury

3

on applicable legal standards,” and was otherwise unsupported by the record. Dist. Ct. D.E. 249, at 1. The

district court agreed and explained its reasoning in

detail:

I see nothing [in the proffered testimony] that

I can’t do and a good deal there that is problematic.

...

It brings in an oracular voice to the case in a

way that is, as I’ve said, I think, distorting to

the jury’s understanding of who does what in

a courtroom. My view is that this can be—to

the degree relevant, it can be presented by me

here. [Professor Bullard] doesn’t add anything. He’s not in a position to testify with respect to Fidelity practices.

...

The opportunities for misunderstanding are

just rife here, and at the risk of deploying the

bumper-sticker response that Fidelity has

provided here, there’s only one Judge in the

Courtroom, and I don’t mean for people to be

misled regarding that.

...

I don’t mean to leave the jury at sea about

what a ’40 Act company or is what the obligations of a ’40 Act company or what the obligations of those involved with 1940 Act companies are. But we’ve long since reached that

point at which an expert is someone who testifies 50 miles from home, and that’s about

what this amounts to, and I’m not going to ac-

4

cept it. It simply trenches on the legal responsibilities—the responsibilities of the Court to

instruct the jury with respect to the law.

Dist. Ct. D.E. 283, at 11–15.

The First Circuit concluded that the district court

had not abused its discretion in excluding Professor

Bullard’s proposed testimony:

Lawson’s claim that the district court erred by

excluding the testimony of her expert witness,

which is reviewed for abuse of discretion, see

Rodriguez v. SmithKline Beecham, 224 F.3d 1,

8–9 (1st Cir. 2000), is unconvincing. The district court supportably found that the proffered testimony, where not irrelevant to the

issues presented by the case improperly impinged upon the role of the court in instructing jurors on the applicable legal standards.

Pet. App. 2a.

Second, petitioner argues that she is entitled to

attorneys’ fees because this Court decided in 2014 (at

the motion-to-dismiss stage) that she could maintain

a whistleblower suit under the Sarbanes-Oxley Act—

even though she ultimately lost her suit on the merits.

Pet. i. The theory she advanced below was that because she sought a declaratory judgment that respondents are covered by the Sarbanes-Oxley Act and

because she prevailed on that issue in this Court, she

is a “prevailing” party within the meaning of Section

1514A(c). After the adverse jury verdict, petitioner

asked the district court to amend the judgment to reflect a victory on the claim for declaratory judgment.

The district court “decline[d] to engage in [a]

sleight of hand” by granting petitioner’s request for

5

declaratory relief. Pet. App. 17a. As the court explained, the question whether the Sarbanes-Oxley Act

applies to respondents was not “a standalone claim,”

but rather “a procedural dimension to the substantive

claim [petitioner] unsuccessfully pursued.” Ibid. For

that reason, the court concluded that “[a]rtificially restyling the basis for pursuing the claim as a separate

declaratory judgment does not transform ultimate

lack of success into a partial victory entitled to recognition as a basis for establishing prevailing party status under the law of attorney fees.” Pet. App. 18a–

19a.

The First Circuit agreed that petitioner is not a

“prevailing” party for purposes of federal fee-shifting

law:

[W]e discern no error or abuse of discretion in

the district court’s determination that [petitioner] was not a “prevailing party” for purposes of recovering an award of attorney’s

fees. [Petitioner] has failed to demonstrate

that obtaining an interlocutory ruling permitting her to move forward with her case in the

face of a dismissal motion qualifies her as a

“prevailing party” for fee-shifting purposes.

See Hewitt v. Helms, 482 U.S. 755, 760 (1987)

(holding that a plaintiff’s “interlocutory ruling

that his complaint should not have been dismissed for failure to state a constitutional

claim” is “not the stuff of which legal victories

are made” and, therefore, could not ground

prevailing party status for fee-shifting purposes).

Pet. App. 4a.

6

ARGUMENT

As to each of the questions presented by petitioner, the First Circuit correctly ruled that the district court had not abused its discretion. Both courts

below applied the correct legal standards to the facts

of this particular case, and petitioner does not even

try to assert a conflict with any decision of this Court

or any other court of appeals. The petition for a writ

of certiorari should be denied.

I.

THE EXCLUSION OF PETITIONER’S LEGAL

EXPERT DOES NOT WARRANT REVIEW

A district court’s decision to admit or exclude expert testimony is reviewed for abuse of discretion.

Gen. Elec Co. v. Joiner, 522 U.S. 136, 142–43 (1997).

The First Circuit applied this deferential standard of

review and concluded that the district court had not

abused its discretion in excluding Professor Bullard’s

proposed testimony. Pet. App. 2a. Petitioner does not

argue that the First Circuit misstated the applicable

legal standard, and this Court will “rarely” grant a petition for a writ of certiorari “when the asserted error

consists of . . . the misapplication of a properly stated

rule of law.” Sup. Ct. R. 10. The fact-bound conclusion

that petitioner’s proposed expert was properly excluded raises no legal or other issue of general importance; indeed, it is unlikely to affect any litigant

but her. This Court does not “sit for the benefit of the

particular litigants.” Rice v. Sioux City Mem’l Park

Cemetery, 349 U.S. 70, 74 (1955).

The decisions below are correct. To be admissible,

expert testimony must “help the trier of fact to understand the evidence or to determine a fact in issue.”

Fed. R. Evid. 702(a). This Court has held that Rule

702 imposes on district courts a “gatekeeping role” to

7

ensure that “any and all scientific testimony or evidence admitted is not only relevant, but reliable.”

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,

589, 597 (1993); see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999) (holding that the “basic

gatekeeping obligation” of Daubert applies to “all expert testimony”).

Pursuant to this “gatekeeping role” and the requirements of Rule 702, the First Circuit has held that

“it is not for witnesses to instruct the jury as to applicable principles of law, but for the judge.” Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 99 (1st Cir. 1997)

(alteration and internal quotation marks omitted).

Accordingly, “expert testimony on . . . purely legal issues is rarely admissible,” with a limited exception for

questions of foreign law. Ibid. That is because construing and instructing the jury on the law is the role

of the district judge, not an expert witness.

The First Circuit is far from alone in imposing this

limitation: Nearly every other federal court of appeals

has adopted a similar rule. See Marx & Co. v. Diners’

Club Inc., 550 F.2d 505, 509 (2d Cir. 1977) (holding

inadmissible expert “opinion as to the legal standards

which [the expert witness] believed to be derived from

the contract”); Cottillion v. United Ref. Co., 781 F.3d

47, 59 (3d Cir. 2015) (noting the “problem of considering expert testimony on the interpretation of a pension plan, which is a purely legal question and not

properly the subject of expert testimony”); United

States v. Barile, 286 F.3d 749, 760 (4th Cir. 2002)

(“Expert testimony that merely states a legal conclusion is less likely to assist the jury in its determination”); Snap-Drape, Inc. v. Comm’r, 98 F.3d 194, 198

(5th Cir. 1996) (“We have repeatedly held that [Rule

704(a)] does not allow an expert to render conclusions

8

of law”); Berry v. City of Detroit, 25 F.3d 1342, 1353

(6th Cir. 1994) (“Although an expert’s opinion may

embrace an ultimate issue to be decided by the trier of

fact, the issue embraced must be a factual one” (alterations, citation, and internal quotation marks omitted)); Aguilar v. Int’l Longshoremen’s Union Local No.

10, 966 F.2d 443, 447 (9th Cir. 1992) (“[T]he reasonableness and foreseeability of the casual workers’ reliance were matters of law for the court’s determination. As such, they were inappropriate subjects for expert testimony.”); Burkhart v. Wash. Metro. Area

Transit Auth., 112 F.3d 1207, 1212–13 (D.C. Cir.

1997) (“In other words, an expert may offer his opinion

as to facts that, if found, would support a conclusion

that the legal standard at issue was satisfied, but he

may not testify as to whether the legal standard has

been satisfied”).

Here, Professor Bullard proposed to testify on the

law—specifically, in petitioner’s own words, “on securities rules and regulations governing the mutual

fund industry.” Pet. 4. While petitioner avers that

Professor Bullard’s testimony “would not have tread

on the province of the Sarbanes-Oxley Act, and how

this statute should be applied to Lawson’s claims,” she

admits in the very next sentence that the testimony

would have addressed “the Securities Exchange and

Commission 15(c) Process, and the regulation [sic] applicability of Rule 12b-1, in relation to Lawson’s

claims of securities fraud.” Pet. 6–7. Petitioner cites

no case from this Court or any other court holding that

a district court abuses its discretion in excluding expert testimony about the “regulat[ory] applicability”

of a federal agency’s rule to a defendant’s alleged conduct. The district court is in the best position to determine whether such testimony will be useful to the

jury in a particular case, and the First Circuit here

9

decided that the district court did not abuse its discretion in answering that question in the negative.

The only cases petitioner cites stand for the proposition that there may be no “blanket prohibition on

expert testimony concerning the law.” Adams v. New

England Scaffolding, Inc., No. 13-CV-12629, 2015 WL

9412518, at *5 (D. Mass. Dec. 22, 2015) (emphasis

added) (cited at Pet. 5); see also Gomez v. Rivera Rodriguez, 344 F.3d 103, 114 (1st Cir. 2003) (rebutting

the suggestion that there is “a general evidentiary

rule to the effect that legal opinion testimony is per se

inadmissible”). Even assuming the validity of that

proposition, neither the cited cases nor any others of

which we are aware establish that the district court

here abused its discretion in excluding Professor

Bullard’s testimony—the absence of a “blanket prohibition” does not undermine the fundamental rule that

expert testimony regarding issues of law is disfavored

and often unhelpful to the jury. Nor do these cases

establish that the First Circuit misinterpreted or misapplied the law in reviewing the district court’s ruling

for abuse of discretion. The district court here found

that Professor Bullard’s proposed testimony would not

assist the trier of fact, the First Circuit affirmed that

decision under the correct standard of review, and petitioner makes no serious effort to dispute the correctness of that conclusion.

The First Circuit’s decision does not conflict with

any decision of this Court or of any other court of appeals, which is itself sufficient to deny certiorari. See

Bunting v. Mellen, 541 U.S. 1019, 1021 (2004) (opinion

respecting the denial of certiorari) (noting the “absence of a direct conflict among the Circuits” as a

ground for denying certiorari). Indeed, the only purported “conflict” petitioner identifies is between the

10

decision below and other decisions of the First Circuit.

Pet. 4–5. Even were there such a conflict (there is

not), it is well settled that an intracircuit conflict

“should not be the occasion for invoking so exceptional

a jurisdiction of this Court as that on certification.”

Wisniewski v. United States, 353 U.S. 901, 902 (1957)

(per curiam). That reasoning applies with equal force

to petitions for writs of certiorari. See, e.g., Davis v.

United States, 417 U.S. 333, 340 (1974) (noting prior

denial of certiorari where there existed only an intracircuit conflict). The First Circuit—which consists

of only six active judges—is capable of resolving any

intracircuit conflict on this issue, perceived or real,

without intervention from this Court.

At bottom, petitioner’s first question presents

nothing of interest to anyone besides the parties to

this case. The district court, applying the correct legal

standard, excluded petitioner’s expert. The First Circuit, also applying the correct legal standard, affirmed. Petitioner disagrees with those decisions, but

she has had her appeal as of right, and further review

on this fact-bound, splitless, and correct conclusion is

unnecessary.

II. THE DENIAL OF ATTORNEYS’ FEES TO A

LOSING PARTY DOES NOT WARRANT REVIEW

The Sarbanes-Oxley Act provides that “[a]n employee prevailing in any action” under the anti-retaliation provisions of the Sarbanes-Oxley Act “shall be

entitled to all relief necessary to make the employee

whole,” including “reasonable attorney fees.” 18

U.S.C. § 1514A(c). Petitioner did not “prevail[ ]” in

this “action.” Rather, she tried her case before a jury

and lost.

11

A number of federal statutes permit an award of

attorneys’ fees to a “prevailing party” in a litigation.

See, e.g., 42 U.S.C. § 1988(b); id. § 2000a-3(b);

id. § 2000e-5(k); 52 U.S.C. § 10310(e). This Court has

held that in such statutes, “plaintiffs may be considered ‘prevailing parties’ for attorney’s fees purposes if

they succeed on any significant issue in litigation

which achieves some of the benefit the parties sought

in bringing suit.” Hensley v. Eckerhart, 461 U.S. 424,

433 (1983) (some internal quotation marks omitted).

The “touchstone of the prevailing party inquiry must

be the material alteration of the legal relationship of

the parties.” Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792–93 (1989). This

standard applies “in a consistent manner” across various fee-shifting statutes. CRST Van Expedited, Inc.

v. EEOC, 136 S. Ct. 1642, 1646 (2016).

This Court has squarely rejected the notion that a

plaintiff “prevail[s]” in a litigation by obtaining “an interlocutory ruling that his complaint should not have

been dismissed for failure to state a . . . claim. That is

not the stuff of which legal victories are made.” Hewitt

v. Helms, 482 U.S. 755, 760 (1987). In Hewitt, the

Court dismissed the plaintiff’s argument that he was

a “prevailing party” within the meaning of 42

U.S.C. § 1988 simply because an appellate court had

ruled that his constitutional rights had been violated,

even though the district court ruled on remand that

the defendants were entitled to qualified immunity

and that the plaintiff therefore would receive no relief.

482 U.S. at 758–60. As this Court explained, “the judicial decree is not the end but the means. At the end

of the rainbow lies not a judgment, but some action (or

cessation of action) by the defendant that the judgment produces.” Id. at 761. “[A] judicial statement

that does not affect the relationship between the

12

plaintiff and the defendant”—such as, in Hewitt, a

declaration of a constitutional violation—“is not an

equivalent [of a judgment on the merits].” Ibid.

Petitioner’s case is indistinguishable from Hewitt.

She prevailed on an interlocutory issue before this

Court and obtained a “ruling that [her] complaint

should not have been dismissed.” Hewitt, 482 U.S. at

760. But that “is not the stuff of which legal victories

are made.” Ibid. Before a jury, petitioner’s claim

failed on the merits. She obtained no redress from respondents, and nothing in the judgment altered the

legal relationship between petitioner and respondents. She is not a “prevailing” party.

The First Circuit properly cited this Court’s decision in Hewitt and concluded that petitioner is not a

prevailing party. Petitioner makes no attempt to dispute that Hewitt is correct and apposite; nor does she

argue that Hewitt should be reconsidered and overruled. And any such argument would be futile, since

Hewitt’s fundamental principles have been reiterated

by this Court numerous times. See, e.g., Sole v. Wyner,

551 U.S. 74, 86 (2007); Buckhannon Bd. & Care Home,

Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S.

598, 605 (2001); Rhodes v. Stewart, 488 U.S. 1, 3 (per

curiam). There is no basis for review of the First Circuit’s decision.

Notably, petitioner does not argue that the district

court abused its discretion in denying her request for

a declaratory judgment (and has therefore waived any

such argument). Moreover, even if the district court

could have exercised its equitable discretion to issue a

declaratory judgment regarding the applicability of

the Sarbanes-Oxley Act to respondents, petitioner

does not advance any argument as to why she was entitled to such a judgment. See Pub. Affairs Assocs.,

13

Inc. v. Rickover, 369 U.S. 111, 112 (1962) (“A declaratory judgment, like other forms of equitable relief,

should be granted only as a matter of judicial discretion, exercised in the public interest” (internal quotation marks omitted)). And in any event, this Court

has made clear that even a declaratory judgment may

not render a plaintiff a “prevailing party” unless “it

affects the behavior of the defendant toward the plaintiff.” Rhodes, 488 U.S. at 3. Any declaratory judgment petitioner could have obtained (but did not)

would not have altered the behavior of respondents or

the legal relationship between the parties, and thus

would not have rendered petitioner a “prevailing”

party.

The text of the Sarbanes-Oxley Act confirms that

petitioner may not recover attorneys’ fees. Section

1514A(c) provides that an “employee prevailing in any

action under subsection (b)(1) shall be entitled to all

relief necessary to make the employee whole,” including reasonable attorneys’ fees.

18 U.S.C.

§ 1514A(c)(1). An action under Section 1514A(b)(1), in

turn, is a private action by a person “alleg[ing] discharge or other discrimination by any person in violation of subsection (a).” Id. § 1514A(b)(1). And Section

1514A(a) prohibits covered employers from discharging an employee in retaliation for that employee

providing information “assist[ing] in an investigation

regarding any conduct which the employee reasonably

believes constitutes a violation” of the federal securities laws. Id. § 1514A(a)(1). Simply put, petitioner

did not “prevail[ ]” in an action for unlawful retaliation—at best, she prevailed on one predicate to that

action. And even if that predicate could fairly be described as a standalone claim (it cannot), recovery is

available only for a prevailing party in an “action” under Section 1514A(b)(1). Cf. Nolan v. Boeing Co., 919

14

F.2d 1058, 1066 (5th Cir. 1990) (“In federal practice,

the terms ‘case’ and ‘action’ refer to the same thing,

i.e., the entirety of a civil proceeding”). Petitioner’s

“action” under Section 1514A(b)(1) failed on the merits, and she cannot recover attorneys’ fees.

Petitioner does not argue that the decision below

conflicts with any other decision of any appellate court

on “prevailing” party status under any federal feeshifting law. She complains that her fee request was

denied, but does not dispute that both lower courts applied the correct legal standard in denying her request. The case-specific application of those standards here presents no issue warranting this Court’s

review.

Indeed, the discussion of attorneys’ fees in the

body of the petition is largely divorced from the decisions below, focusing instead on allegations of misconduct by counsel for respondents. Pet. 8–12. Such

case-specific (indeed, unique) accusations would not

warrant further review even if they had merit—which

they do not. That is doubly true in this case, since the

factual and legal points presented in this part of the

petition were not made by petitioner in either the district court or the court of appeals. She therefore forfeited them. See United States v. Olano, 507 U.S. 725,

731 (1993). And none of her unproven (and unpreserved) allegations could render her a “prevailing”

party in any event for the simple—yet dispositive—

reason that a jury rejected her claim on the merits. It

is time for this litigation to come to an end.

15

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

MARK A. PERRY

Counsel of Record

JOSHUA M. WESNESKI

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 955-8500

MPerry@gibsondunn.com

Counsel for Respondents

July 29, 2019