Using Severability Doctrine to Solve the Retroactivity Unit-of-Analysis Puzzle: A Dodd-Frank Case Study
An employee of a public company uncovers evidence that her employer is misleading shareholders and regulators about its financial position. Knowing that federal law protects whistleblowers employed by public companies, the employee reports her concerns to a supervisor. After she files her complaint, the company discharges her, and she brings a whistleblower retaliation claim against it. While her claim is pending, Congress passes omnibus financial reform legislation. Buried in the bill’s sixteen hundred sections are five changes to the whistleblower retaliation cause of action. For example, one provision bans agreements to arbitrate whistleblower claims, while another establishes a jury-trial right. The legislation is silent as to whether these or other changes apply retroactively to pending cases— leaving courts to decipher the puzzle.
Should any of the five changes apply to the whistleblower’s pending case? If one provision applies retroactively, must the other provisions also apply retroactively?
Current retroactivity doctrine fails to specify the appropriate unit of analysis for this determination—that is, exactly which provisions should be analyzed. Similarly, the doctrine provides no guidance as to when retroactive application of one amendment is dependent on the retroactive application of a related amendment.
Resolution of this unit-of-analysis problem is increasingly important as questions of statutory interpretation come to dominate federal dockets. Lengthy, complex enactments are now commonplace. Such “legislative behemoths” present particular challenges for retroactivity doctrine: “The greater the number of provisions a statute contains, the greater the number of possible permutations” created when courts determine retroactive application of each provision on a provision-by-provision, case-by-base basis. A piecemeal approach to retroactivity yields a hybrid regime, whereby the cause of action applicable to pending cases is neither the original cause of action nor the updated cause of action.