Christopher Garvey v. Administrative Review Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 22, 2022 Decided December 23, 2022

No. 21-1182

CHRISTOPHER GARVEY,

PETITIONER

v.

ADMINISTRATIVE REVIEW BOARD, UNITED STATES

DEPARTMENT OF LABOR,

RESPONDENT

MORGAN STANLEY,

INTERVENOR

On Petition for Review of an Order

of the Department of Labor (except OSHA)

Christopher Garvey, pro se, argued the cause and filed the

briefs for petitioner.

Reynaldo Fuentes, Attorney, U.S. Department of Labor,

argued the cause for respondent. With him on the brief was

Megan E. Guenther, Counsel for Whistleblower Programs.

Michael E. Kenneally argued the cause for intervenor in

support of respondent. With him on the brief were Sarah E.

Bouchard and A. Klair Fitzpatrick.

2

Before: PILLARD, Circuit Judge, and EDWARDS and

ROGERS, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

EDWARDS, Senior Circuit Judge: Section 806 of the

Corporate and Criminal Fraud Accountability Act of 2002,

Title VIII of the Sarbanes–Oxley Act (“SOX”), aims to

encourage disclosure of corporate fraud by protecting

employees of publicly traded companies who report illegal

activities. 18 U.S.C. § 1514A; 29 C.F.R. § 1980.102(b). To

achieve this end, the statute authorizes these employees to file

complaints with the Secretary of Labor (“Secretary”) or pursue

suits in federal district court if they are discharged or otherwise

discriminated against for engaging in protected whistleblower

activity. There are two principal issues in this case: (1) whether

Section 806 has an extraterritorial reach covering persons who

are employed overseas by a foreign subsidiary of a U.S.-based

corporation; and (2) whether such persons may allege a

domestic application of Section 806 if they work exclusively

overseas under an employment contract governed by the laws

of a foreign nation.

This case was initiated by Petitioner Christopher Garvey.

Between 2006 and 2016, Garvey was employed by foreign

subsidiaries of Morgan Stanley, a U.S. corporation. In 2006, he

was hired by the Morgan Stanley Japan Group in Tokyo. In

2011, he relocated to Morgan Stanley Asia Limited in Hong

Kong. When he moved to Hong Kong, Garvey consented to

“the exclusive jurisdiction of [Hong Kong’s] courts and []

Labour Tribunal,” under a contract of employment that was

“governed by the laws of Hong Kong.” Joint Appendix (“J.A.”)

357.

3

Garvey alleges that, between late 2014 and early 2016, he

raised a number of concerns with his superiors in New York

regarding potential U.S. securities law violations committed by

Morgan Stanley employees. According to Garvey, these

alleged legal transgressions included various forms of

corporate corruption, occurring predominantly overseas but

affecting U.S. markets. See J.A. 3-5. Garvey contends that his

whistleblowing claims were met with antagonism by his

superiors at Morgan Stanley. He says that “[i]n January 2016

[he] received a pay cut and a blunt recommendation to find a

job elsewhere”[;] so “[i]n the face of ongoing pressure, hostility

and clear and present risk,” he “resigned his position in

February 2016.” Petitioner’s Br. 17. Garvey retained counsel

to represent his interests after he left Morgan Stanley Asia

Limited. However, he contends that he lost the services of his

attorney after Morgan Stanley threatened to pursue disciplinary

actions against counsel for breach of professional obligations.

In August 2016, Garvey filed a pro se complaint with the

Occupational Safety and Health Administration (“OSHA”) at

the Department of Labor (“DOL”) against Morgan Stanley for

alleged retaliation in violation of Section 806. His complaint

was dismissed for failure to allege an adverse employment

action. Garvey then sought review by an Administrative Law

Judge (“ALJ”), whose adverse decision was then reviewed by

the DOL Administrative Review Board (“Board”). The Board

rejected his complaint on the grounds that, by its terms, Section

806 does not have extraterritorial application and the facts of

the case did not give rise to a domestic application of SOX. J.A.

377-81. Garvey timely petitioned for review in this court.

“It is a longstanding principle of American law that

legislation of Congress, unless a contrary intent appears, is

meant to apply only within the territorial jurisdiction of the

4

United States.” Morrison v. Nat’l Austl. Bank Ltd., 561 U.S.

247, 255 (2010) (citations omitted) (internal quotation marks

omitted). While “an express statement of extraterritoriality is

not essential,” the text, context, and legislative history of

Section 806 do not contain a “a clear, affirmative indication

that [the statute] applies extraterritorially.” RJR Nabisco, Inc.

v. European Cmty., 579 U.S. 325, 337, 340 (2016). Therefore,

Garvey has no cause of action under Section 806 unless this

“case involves a domestic application of the statute.” Id.

Garvey argues that his complaint states a viable cause of

action because the primary focus of Section 806 is the

prevention of corporate fraud and his allegations of fraud

affecting U.S. securities markets establish a domestic

application of Section 806. We disagree. There is no cause of

action under Section 806 for securities fraud. Rather, Section

806 protects employees from retaliation by making it unlawful

for a company to “discharge, demote, suspend, threaten, harass,

or in any other manner discriminate against an employee in the

terms and conditions of employment because of [the

employee’s protected activity].” 18 U.S.C. § 1514A(a).

Finally, we hold that Garvey’s claim that Morgan Stanley

threatened his attorney does not support a domestic application

of Section 806. Even if the allegation is true, it would not fall

within the compass of the statute because the events giving rise

to the claim took place after Garvey’s employment was

terminated. And Garvey does not contend that Morgan Stanley

attempted to undermine his employment prospects after he left

the company.

For the reasons given in this opinion, we deny the petition

for review.

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I. BACKGROUND

A. Sarbanes-Oxley Act Whistleblower Protections

In 2002, “[t]o safeguard investors in public companies and

restore trust in the financial markets following the collapse of

Enron Corporation,” Congress enacted the Sarbanes-Oxley

Act. Lawson v. FMR LLC, 571 U.S. 429, 432 (2014) (citing S.

REP. NO. 107-146, at 2-11 (2002)). Key among SOX’s

provisions is Section 806, which “sets a national floor for

employee protections” against retaliation for covered

employees reporting instances of corporate fraud. See S. REP.

NO. 107-146, at 20. Section 806 provides in relevant part:

[18 U.S.C.] § 1514A. Civil action to protect against

retaliation in fraud cases

(a) WHISTLEBLOWER PROTECTION FOR EMPLOYEES OF

PUBLICLY TRADED COMPANIES.--No company with a

class of securities registered under section 12 of the

Securities Exchange Act of 1934 (15 U.S.C. 78l), or

that is required to file reports under section 15(d) of the

Securities Exchange Act of 1934 (15 U.S.C. 78o(d))

including any subsidiary or affiliate whose financial

information is included in the consolidated financial

statements of such company, or nationally recognized

statistical rating organization (as defined in section

3(a) of the Securities Exchange Act of 1934 (15 U.S.C.

78c), or any officer, employee, contractor,

subcontractor, or agent of such company or nationally

recognized statistical rating organization, may

discharge, demote, suspend, threaten, harass, or in any

other manner discriminate against an employee in the

terms and conditions of employment because of any

lawful act done by the employee –

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(1) to provide information, cause information to be

provided, or otherwise assist in an investigation

regarding any conduct which the employee reasonably

believes constitutes a violation of section 1341, 1343,

1344, or 1348 [“coordinate statutes”], any rule or

regulation of the Securities and Exchange

Commission, or any provision of Federal law relating

to fraud against shareholders, when the information or

assistance is provided to or the investigation is

conducted by—

...

(C) a person with supervisory authority over the

employee (or such other person working for the

employer who has the authority to investigate,

discover, or terminate misconduct)[.]

...

(b) ENFORCEMENT ACTION.—

(1) IN GENERAL. — A person who alleges discharge or

other discrimination by any person in violation of

subsection (a) may seek relief under subsection (c), by-

-

(A) filing a complaint with the Secretary of Labor; or

(B) if the Secretary has not issued a final decision

within 180 days of the filing of the complaint and there

is no showing that such delay is due to the bad faith of

the claimant, bringing an action at law or equity for de

novo review in the appropriate district court of the

United States, which shall have jurisdiction over such

an action without regard to the amount in controversy.

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18 U.S.C. § 1514A. Nothing in Section 806, nor in any

coordinate statute, see 18 U.S.C. § 1514A(a)(1) (citing §§

1341, 1343, 1344, 1348), indicates that the specified

protections for employees against retaliation in fraud cases are

meant to apply extraterritorially.

When Congress enacted Section 806, it also amended

Section 1107, 18 U.S.C. § 1513, another whistleblower

provision in the Sarbanes-Oxley Act. This legislative action

added subsection (e) to 18 U.S.C. § 1513, providing for

criminal sanctions for retaliation against anyone giving truthful

information to law enforcement officers relating to the

commission of any federal offense. What is noteworthy is that

there is express language providing for the statute’s

extraterritorial jurisdiction, under 18 U.S.C. § 1513(d). “That

Congress provided for extraterritorial reach as to Section 1107

but did not do so as to Section 806 (the provision relevant here)

conveys the implication that Congress did not mean Section

806 to have extraterritorial effect.” Carnero v. Bos. Sci. Corp.,

433 F.3d 1, 10 (1st Cir. 2006).

B. The Framework for Civil Actions to Protect

Employees Against Retaliation in Section 806 Fraud

Cases

Under Section 806, a person alleging discrimination may

seek relief by filing a complaint with the Secretary through

OSHA. See 18 U.S.C. § 1514A(b)(1)(A); see also 29 C.F.R. §

1980.103. An aggrieved person may also pursue a civil action

in federal district court “if the Secretary has not issued a final

decision within 180 days of the filing of the complaint and

there is no showing that such delay is due to the bad faith of the

claimant.” See 18 U.S.C. § 1514A(b)(1)(B); see also 29 C.F.R.

§ 1980.114.

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The Secretary’s adjudication of SOX whistleblower claims

is governed by the rules, procedures, and burdens of proof set

forth in the Wendell H. Ford Aviation Investment and Reform

Act for the 21st Century whistleblower provision, 49 U.S.C. §

42121(b). See 18 U.S.C. § 1514A(b)(2). Following an

investigation, OSHA issues a determination subject to review

by an ALJ. See 18 U.S.C. § 1514A(b)(2)(A); 49 U.S.C. §

42121(b)(2)(A); 29 C.F.R. §§ 1980.105, 1980.106. The ALJ

may hold a hearing or decide the case on dispositive motions

“if the facts and circumstances warrant.” 29 C.F.R. §

1980.109(c). The ALJ’s decision is subject to discretionary

review by the DOL Administrative Review Board. 29 C.F.R. §

1980.110. Unless otherwise provided, and absent intervention

by the Secretary, the Board’s holding becomes the DOL’s final

order within 28 calendar days. See Delegation of Authority and

Assignment of Responsibility to the Administrative Review

Board, 85 Fed. Reg. 13186, 13187-88 (Mar. 6, 2020). Any

person adversely affected or aggrieved by a final order of the

Secretary “may obtain review of the order in the United States

Court of Appeals for the circuit in which the violation . . .

allegedly occurred or the circuit in which the complainant

resided on the date of such violation.” 49 U.S.C.

§ 42121(b)(4)(A).

C. Dodd-Frank Amendments

In its brief to this court, the Secretary usefully explains the

congressional amendments to Section 806 that came in 2010 as

part of the Dodd-Frank Wall Street Reform and Consumer

Protection Act (“Dodd-Frank”):

The 2010 amendments to Section 806 extended the

period for filing complaints with the Secretary from 90

to 180 days, made pre-dispute arbitration agreements

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inapplicable to Section 806 claims, provided a right to

jury trial under 18 U.S.C. § 1514A(b)(1)(B) (which

allows a whistleblower to bring a Section 806 claim in

district court if the Secretary does not issue a final

decision on the claim within 180 days), modified the

definition of employers covered by the provision to

include nationally recognized statistical ratings

organizations, and clarified “that subsidiaries and

affiliates of issuers may not retaliate against

whistleblowers, eliminating a defense often raised by

issuers in actions brought by whistleblowers.” See §§

922(b) and (c) and 929A of Dodd Frank, 124 Stat.

1848, 1852; S. Rep. No. 111-176, 2010 WL 1796592

at *114 (Apr. 30, 2010).

Secretary’s Br. 35. Notably, nothing in these 2010

amendments addressed the extraterritorial application of

Section 806.

In the same legislation, however, Congress expressly

provided for the “extraterritorial jurisdiction” of federal courts

over actions or proceedings brought or instituted by the

Securities Exchange Commission (“SEC”) or the United States

alleging a violation of the antifraud provisions of the Securities

Exchange Act of 1934. See Dodd-Frank, Pub. L. No. 111-203,

§ 929-Z, 124 Stat. 1376, 1864-65 (2010) (referring to authority

of the SEC and the United States to bring actions in federal

courts under 15 U.S.C. § 77v(a), 15 U.S.C. § 78aa, and 15

U.S.C. § 80b-14). No such legislation was adopted to cover

actions brought under Section 806.

D. Facts and Procedural History of This Case

Garvey was employed as a “regional coverage lawyer” for

the Morgan Stanley Japan Group and the Hong Kong-based

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Morgan Stanley Asia Limited. J.A. 296. Both corporations are

foreign subsidiaries of Morgan Stanley, a U.S. corporation

listed on the New York Stock Exchange (“NYSE”). There is

nothing in the record to indicate that Garvey was ever

employed or routinely supervised by any Morgan Stanley

operation within the United States.

As noted above, from the time of his transfer to Hong Kong

in 2011 until his alleged constructive discharge in 2016,

Garvey consented to “the exclusive jurisdiction of [Hong

Kong’s] courts and [] Labour Tribunal,” under an employment

contract “governed by the laws of Hong Kong.” J.A. 357.

Garvey was paid primarily in local currency, received local

benefits, and adhered to Morgan Stanley Asia Limited’s rules

and policies. J.A. 355-56. His “principal role as the Head of

Legal for [Merchant Banking & Real Estate Investing

(“MBREI”)] in Asia was to advise MBREI, and the MBREI

managed funds, in the conduct of their investments and

operations in Asia.” J.A. 206. More broadly, Garvey was

responsible “for the delivery and application of legal advice

and regulatory standards to the conduct of business in Asia.”

J.A. 314. All of Garvey’s internal business clients were based

outside the United States. J.A. 362-68. And his direct reports

were in Asia. J.A. 363-64.

Garvey alleges that, during periods of time when he was

with the company, Morgan Stanley employees engaged in

insider training, market manipulation, U.S. tax fraud, and other

forms of corporate corruption. He says that these misdeeds

occurred predominantly overseas. See J.A. 3-5, 17, 378.

Because he believed that these dealings violated the securities

laws of the United States, he reported his concerns to his

superiors. J.A. 4. Morgan Stanley officials commenced an

internal investigation, and Garvey traveled to New York City

to assist in their efforts. J.A. 378. However, Garvey says that

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his complaints were never seriously pursued, as Morgan

Stanley “abruptly” ended its internal investigation and declined

to act on the “problematic” findings that were detailed in an

initial report. J.A. 299-300. He asserts that when he notified a

superior of his belief that Morgan Stanley manipulated the

investigations, he was warned that his actions could threaten

future promotion prospects. J.A. 315. On February 5, 2016,

facing a pay cut, ongoing pressure from superiors, and alleged

legal and ethical risks, Garvey resigned from his position at

Morgan Stanley Asia Limited. J.A. 286. Morgan Stanley Asia

Limited accepted Garvey’s Notice of Resignation and outlined

his remaining responsibilities through his final day of

employment. J.A. 359-61.

After he left Morgan Stanley Asia Limited, Garvey retained

Katz Banks Kumin (formerly Katz, Marshall & Banks, LLP)

as counsel. J.A. 50. Garvey alleges that the firm withdrew its

representation after Morgan Stanley threatened his counsel

with disciplinary actions. Petitioner’s Br. 62.

Proceeding pro se, Garvey timely filed a Section 806

retaliation complaint against Morgan Stanley with OSHA on

August 2, 2016. Finding that Garvey did not suffer an adverse

employment action and thus failed to allege a prima facie SOX

violation, OSHA dismissed his complaint on March 22, 2017.

J.A. 10. Garvey timely filed a Notice of Objection with the

Office of Administrative Law Judges. J.A. 188.

On November 21, 2019, Morgan Stanley filed a motion to

dispose of Garvey’s claims following the issuance of two DOL

Administrative Review Board decisions holding that Section

806 lacks extraterritorial application. J.A. 343; see Hu v. PTC,

Inc., ARB No. 2017-0068, ALJ No. 2017-SOX-00019, slip op.

at 7-11 (ARB Sept. 18, 2019); Perez v. Citigroup, Inc., ARB

No. 2017-0031, ALJ No. 2015-SOX-00014, slip op. at 4-5

12

(ARB Sept. 30, 2019). Reviewing “all of the relevant evidence

and law,” including the two Board decisions, the ALJ granted

Morgan Stanley’s dispositive motion and dismissed Garvey’s

complaint. J.A. 183. The ALJ adopted the Board’s analysis in

Hu to hold that (1) Section 806 lacks extraterritorial reach, and

(2) Garvey, like Hu, was a foreign-based worker at a foreign

subsidiary employed entirely outside of the United States who

could not allege a domestic application of Section 806. J.A.

182-83.

Garvey sought review of the ALJ’s decision by the Board.

On July 16, 2021, the Board affirmed the dismissal of Garvey’s

complaint. J.A. 377-78. Relying on the two-step framework

established by the Supreme Court in Morrison, the Board

explained that, absent a clear indication that a statute applies

extraterritorially, a complainant must establish a cognizable

domestic connection to have a viable cause of action under

Section 806. J.A. 379 (citing 561 U.S. at 266-70).

In rejecting Garvey’s complaint, the Board first concluded

that Section 806, by its terms, is not extraterritorial. J.A. 380

(citing Hu, slip op. at 7-9, and Perez, slip op. at 5). The Board

next found that Garvey’s complaint “does not represent a

domestic application of Section 806.” J.A. 380. The Board

explained that “[t]he location of the employee’s permanent or

principal worksite is the key factor to determine whether a

claim is domestic or extraterritorial.” J.A. 381 n.10. The Board

concluded that “[b]ecause the record shows that [Garvey’s]

permanent or principal worksite was in Hong Kong during the

relevant time period, the facts of this matter do not create a

domestic application of Section 806.” J.A. 381.

Finally, the Board found no merit in Garvey’s claim that

Morgan Stanley violated Section 806 when it allegedly

harassed and threatened his attorney. The Board determined

13

that “the alleged conduct [was] not an adverse employment

action that impacted the terms and conditions of his

employment nor did [Garvey] present evidence that the alleged

retaliation affected the terms or conditions of any subsequent

employment.” J.A. 381 n.10. Therefore, the Board concluded

that, even if the “alleged claims of post-employment retaliation

or harassment have merit, they still would not create a domestic

application of Section 806 over [Garvey’s] claim.” J.A. 381.

Garvey now appeals pro se, requesting that we reject the

Board’s legal determinations and grant his petition for review.

II. ANALYSIS

A. Standard of Review

Section 806 administrative proceedings are “governed

under the rules and procedures set forth in [49 U.S.C. §

42121(b)(4)(A)].” 18 U.S.C. § 1514A(b)(2)(A). Section

42121(b)(4)(A), in turn, says that judicial review shall conform

to the standards prescribed in the Administrative Procedure Act

(“APA”), 5 U.S.C. § 706. Therefore, a court typically applies

the terms of the APA when reviewing a Board order. See, e.g.,

Villanueva v. U.S. Dep’t of Lab., 743 F.3d 103, 108 (5th Cir.

2014); Welch v. Chao, 536 F.3d 269, 275-76 (4th Cir. 2008).

Under the APA, an order of the Board “will be upheld unless it

is arbitrary, capricious, an abuse of discretion, or otherwise

contrary to law. Factual findings are subject to substantial

evidence review. [This means that, a Board] decision must be

upheld if, considering all the evidence, a reasonable person

could have reached the same conclusion as the [Board].” Allen

v. Admin. Rev. Bd., 514 F.3d 468, 476 (5th Cir. 2008) (citations

omitted) (internal quotation marks omitted).

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Several of our sister circuits have held that permissible

interpretations of Section 806 by the Board are entitled to

deference under Chevron U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 844 (1984). See Day v.

Staples, Inc., 555 F.3d 42, 54 n.7 (1st Cir. 2009) (noting that

“Congress explicitly delegated to the Secretary of Labor

authority to enforce § 1514A by formal adjudication . . . and

the Secretary has delegated her enforcement authority to the

[Board].”) (citations omitted); see also Lockheed Martin Corp.

v. Admin. Rev. Bd., 717 F.3d 1121, 1131 (10th Cir. 2013);

Wiest v. Lynch, 710 F.3d 121, 131 (3d Cir. 2013); Welch, 536

F.3d at 276 n.2.

Garvey argues that no Chevron deference is due in this

case because the judgment of the Board does not turn on an

interpretation of Section 806. Rather, according to Garvey, the

principal issue in this case is whether Section 806 has an

extraterritorial application. Petitioner’s Br. 12. In addition,

Garvey says that that no Chevron deference is due because the

question of extraterritoriality is a matter of jurisdiction; and

Congress did not delegate authority to the DOL to define the

reach of SOX. Id. at 24. Finally, Garvey says that the “test for

determining extraterritoriality based on the location of

employment . . . is a legal question that involves the

interpretation and application of binding judicial precedent

arising out of Supreme Court precedent and is, therefore,

entitled to de novo review.” Id. Both the Secretary and the

Intervenor argue that the Board’s interpretation and application

of Section 806 is entitled to deference under Chevron. See

Secretary’s Br. 19; Intervenor Morgan Stanley’s Br. 9-10.

We need not decide any Chevron issue in this case. The

Supreme Court has made it clear that “Chevron deference does

not apply where the statute is clear.” Johnson v. Guzman

Chavez, 594 U.S. ___, 141 S. Ct. 2271, 2291 n.9 (2021); see

15

also Babb v. Wilkie, 589 U.S. ___, 140 S. Ct. 1168, 1177 (2020)

(“[W]here, as here, the words of [a] statute are unambiguous,

the judicial inquiry is complete.” (citation omitted) (internal

quotation marks omitted)); Am. Hosp. Ass’n v. Becerra, 596

U.S. ___,142 S. Ct. 1896, 1906 (2022) (holding that a court is

not bound to defer to an agency interpretation of a statute if,

“after employing the traditional tools of statutory

interpretation, [the court does] not agree with [the agency’s]

interpretation of the statute”).

For the reasons that we explain below, we hold that the

text, context, and legislative history of Section 806 do not

contain a clear, affirmative indication that the statute applies

extraterritorially. And we conclude that Garvey has no cause of

action under Section 806 because this case does not involve a

domestic application of the statute. Although our legal

judgments are consistent with the order issued by the Board,

we have pursued de novo review in reaching this result. We

find the statute and applicable law clear on these matters, so

deference under Chevron is not an issue. We need not decide

whether Chevron deference might be due to a Board order in

another case involving different issues.

B. Petitioner’s Principal Claims in This Case

Garvey argues that because Section 806 includes terms that

may be viewed to have an extraterritorial reach, Section 806

must be extraterritorial in scope. Petitioner’s Br. 19, 27-32. In

the alternative, Garvey asserts that “there is no need to apply

Section 806 extraterritorially” because the facts of the case

support a domestic application of Section 806. Id. at 20-21, 64.

We assess Garvey’s allegations using the two-step

framework outlined by the Supreme Court in Morrison and its

progeny. The Court has explained that:

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At the first step, we ask whether the presumption

against extraterritoriality has been rebutted—that is,

whether the statute gives a clear, affirmative indication

that it applies extraterritorially. We must ask this

question regardless of whether the statute in question

regulates conduct, affords relief, or merely confers

jurisdiction. If the statute is not extraterritorial, then at

the second step we determine whether the case

involves a domestic application of the statute, and we

do this by looking to the statute's “focus.” If the

conduct relevant to the statute’s focus occurred in the

United States, then the case involves a permissible

domestic application even if other conduct occurred

abroad; but if the conduct relevant to the focus

occurred in a foreign country, then the case involves an

impermissible extraterritorial application regardless of

any other conduct that occurred in U.S. territory.

RJR Nabisco, 579 U.S. at 337; see Morrison, 561 U.S. at 255,

266. Applying this framework, we are constrained to dismiss

Garvey’s petition for review.

C. The Presumption Against Extraterritoriality

Cannot Be Overcome

It is well understood that, unless a contrary intent appears,

an act of Congress “is meant to apply only within the territorial

jurisdiction of the United States.” Morrison, 561 U.S. at 255

(citation omitted) (internal quotation marks omitted). “This

principle represents a canon of construction, or a presumption

about a statute’s meaning, rather than a limit upon Congress’s

power to legislate.” Id.; see Meshal v. Higgenbotham, 804 F.3d

417, 425 (D.C. Cir. 2015) (“[E]xtraterritoriality dictates

constraint in the absence of clear congressional action.”).

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The presumption against extraterritoriality “rests on the

perception that Congress ordinarily legislates with respect to

domestic, not foreign, matters.” Morrison, 561 U.S. at 255

(citation omitted), and the Supreme Court has applied it “with

increased clarity and insistence” in recent years. United States

v. Garcia Sota, 948 F.3d 356, 358 (D.C. Cir. 2020) (citing RJR

Nabisco, 579 U.S. 325; Kiobel v. Royal Dutch Petroleum Co.,

569 U.S. 108 (2013); and Morrison, 561 U.S. 247). The

presumption is rebutted only when the statute’s “text, history,

or purposes . . . evince[] a clear indication of extraterritorial

reach.” Kiobel, 569 U.S. at 109. Generic terms or “fleeting

reference[s]” to possible international applications do not

overcome this presumption. Morrison, 561 U.S. at 263.

At the first Morrison step, we assess whether the statute

gives “a clear, affirmative indication that it applies

extraterritorially.” RJR Nabisco, 579 U.S. at 337. “As always,

we begin with the text of the statute” in interpretating a

challenged provision. American Federation of Gov’t

Employees, AFL-CIO, Local 3669 v. Shinseki, 709 F.3d 29, 33

(D.C. Cir. 2013) (citation omitted); see also Wisconsin Cent.

Ltd. v. United States, 138 S. Ct. 2067, 2074 (2018). Where the

text is not clear, we turn next to assessing whether any

indication of congressional intent overcomes the presumption

against extraterritoriality. See Sale v. Haitian Centers Council,

Inc., 509 U.S. 155, 177 (1993) (reviewing “all available

evidence” to determine Congress’s intent). Where “a statute

gives no clear indication of an extraterritorial application, it has

none.” Morrison, 561 U.S. at 255.

We find that the Board properly held that the text, context,

and legislative history of Section 806 do not contain a clear,

affirmative indication that Congress intended the provision to

apply extraterritorially. There is nothing in Section 806 to

18

indicate that it has an extraterritorial reach covering a person

like Garvey, who was employed exclusively in the overseas

operation of a foreign subsidiary of a U.S.-based corporation.

Text and Context. Section 806 is “silent as to its territorial

reach.” Carnero, 433 F.3d at 7. The provision contrasts sharply

with other statutes that rebut the presumption against

extraterritoriality by stating, for example, that they apply to

offenses taking place “outside the United States” or that they

create “extraterritorial jurisdiction over” the prohibited

conduct. RJR Nabisco, 579 U.S. at 338 (citations omitted); see

also E.E.O.C. v. Arabian Am. Oil Co., 499 U.S. 244, 258-59

(1991) (“Aramco”) (citing numerous statutes that expressly

provide extraterritorial application).

Section 806 also contrasts with other SOX enactments,

including a whistleblower provision, that expressly provide for

extraterritorial enforcement. See 18 U.S.C. § 1513(d); Carnero,

433 F.3d at 13-14 (noting testimony by U.S. Senators Sarbanes,

Graham, and Enzi that demonstrates Congress’s awareness of

foreign applications of certain SOX provisions, as well as of

the associated challenges of such application). We assume

“that Congress legislates against the backdrop of the

presumption against extraterritoriality.” Shekoyan v. Sibley

Int’l, 409 F.3d 414, 420 (D.C. Cir. 2005). Thus, legislation

explicitly providing one provision with extraterritorial reach

likely weighs against a finding that another provision without

such language applies overseas. See Garcia Sota, 948 F.3d at

358; Aramco, 499 U.S. at 258 (“When it desires to do so,

Congress knows how to place the high seas within the

jurisdictional reach of a statute.” (citation omitted) (internal

quotation marks omitted)). Congress’s silence regarding

Section 806’s scope and concurrent grant of extraterritorial

enforcement elsewhere under SOX convey the implication that

19

it did not intend to provide Section 806 with extraterritorial

effect.

Legislative History. “Nowhere in the legislative history is

there any indication that 18 U.S.C. § 1514A was drafted with

the purpose of extending to foreign employees working in

nations outside of the United States the right to seek

administrative and judicial civil relief under [SOX].” Carnero,

433 F.3d at 13. Congress justified Section 806’s enactment by

detailing insufficiencies in state, not international, protections

for whistleblowers. S. REP. NO. 107-146, at 2, 10; see also

Carnero, 433 F.3d at 11-12. The exhaustive discussion in

Carnero convincingly confirms that, “[n]ot only is the text of

18 U.S.C. § 1514A silent as to any intent to apply it abroad, the

statute’s legislative history indicates that Congress gave no

consideration to either the possibility or the problems of

overseas application,” 433 F.3d at 8.

Post-Enactment History. As discussed above, Congress

enacted Section 929A of Dodd-Frank to expand Section 806’s

coverage to “any subsidiary or affiliate whose financial

information is included in the consolidated financial statements

of such company.” 18 U.S.C. § 1514A(a); see S. REP. NO. 111-

176, at 114. At the same time, it provided for the extraterritorial

application of enforcement actions brought by the SEC under

Section 929P of Dodd-Frank. 124 Stat. 1864-65; see H.R. REP.

NO. 111-517, at 498-99 (2010). Congress was “obviously

aware of Morrison,” decided shortly before, and enacted

“clear, affirmative text rebutting the presumption against

extraterritoriality” with respect to Section 929P. Hu, slip op. at

9. Yet, Congress notably declined to amend the statute to give

an extraterritorial reach to Section 806.

Where, as here, “Congress includes particular language in

one section of a statute but omits it in another section of the

20

same Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or

exclusion.” Russello v. United States, 464 U.S. 16, 23 (1983)

(citations omitted) (internal quotations marks omitted).

Congress’s silence on Section 806’s scope – even as it amended

the provision and provided for extraterritoriality elsewhere in

the same statute – weighs strongly against a finding that

Congress intended to provide for the overseas application of

Section 806.

Petitioner’s Claims. Garvey makes two principal claims

in support of his argument that the text of Section 806

demonstrates a clear indication of extraterritorial application.

He first contends that the scope of Section 806 is limited by

definitions that have specific extraterritorial reach. He further

asserts that Section 806 incorporates predicate statutes that

have extraterritorial reach. His arguments are unconvincing.

First, Garvey points out that Section 806 prohibits

retaliation by certain identifiable companies, i.e., those with a

class of securities registered under Section 12, or that are

required to file reports under Section 15(d), of the Securities

Exchange Act of 1934 – including any subsidiary or affiliate

whose financial information is included in the consolidated

financial statements of such company. Petitioner’s Br. 28-29,

45 n.51 (citing 15 U.S.C. §§ 78l, 78o(d)). Thus, in Garvey’s

view, “the text of Section 806 provides a clear indication of the

intention to have extraterritorial reach consistent with the

relevant scope of companies captured by Sections 12 and

15(d).” Id. at 28. The essence of his argument seems to be that,

because “Sections 12 and 15(d) reach both domestic and

foreign issuers,” id., it necessarily follows that the employees

of such companies who are based outside of the United States

have a cause of action under Section 806 just as do the

employees working in the United States. Id. at 27-29, 32-33.

21

This argument is insufficient to support the extraterritorial

application of Section 806.

The applicable case law makes it clear that generic terms

in Section 806 that might imply a foreign reach are insufficient

to rebut the presumption against extraterritorial applications of

the statute. Indeed, the Supreme Court has made it plain that

“[t]he principles underlying the presumption against

extraterritoriality [] constrain courts exercising their power” in

applying a statute enacted by Congress. Kiobel, 569 U.S. at

117.

The important point here is that, even if Section 806

reaches some companies that have a presence in foreign

countries, the statute is silent on whether it applies to those

companies’ overseas operations and personnel. In Carnero, the

First Circuit assumed without deciding that the complainant’s

employer – an Argentine subsidiary of a U.S. company

registered under Section 12 of the Securities Exchange Act –

was a covered entity under Section 806 and that the

complainant himself was a covered employee under the statute.

See 433 F.3d at 5-7. The court nevertheless concluded that this

did not support an extraterritorial application of Section 806.

Id. at 7-18. We agree.

Likewise, in Aramco, the complainant argued that Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,

applies extraterritorially because of its broad definition of

“employer.” Aramco, 499 U.S. at 249. A covered employer

included companies in industries affecting “commerce,”

broadly defined to include activities “between a State and any

place outside thereof.” Id. (citation omitted) (internal quotation

marks omitted). Although this provision arguably covers U.S.

companies operating in foreign countries, the Supreme Court

found that this “broad jurisdictional language” did not speak

22

directly to the question of extraterritoriality and thus did not

clearly express congressional intent to apply Title VII

extraterritorially. Aramco, 499 U.S. at 249-50. Section 806

similarly may prohibit retaliation by foreign companies listed

on U.S. securities exchanges, but we cannot thereby infer that

it prohibits retaliation claims by anyone at those companies

who is employed exclusively outside the United States. See

Kiobel, 569 U.S. at 118 (“The [Alien Tort Statute] covers

actions by aliens for violations of the law of nations, but that

does not imply extraterritorial reach—such violations affecting

aliens can occur either within or outside the United States.”).

In sum, we find no merit in Garvey’s first argument that

the scope of Section 806 is limited by definitions that have

specific extraterritorial reach. His second argument – that

Section 806 incorporates “predicate statutes” that have

extraterritorial reach – fares no better.

Garvey notes that Section 806 prohibits retaliation against

an employee reporting conduct that the employee reasonably

believes violates 18 U.S.C. § 1343 (wire fraud) and 18 U.S.C.

§ 1348 (securities fraud). He argues that because these statutes

have at least some applications abroad, Section 806 must have

an extraterritorial reach. Petitioner’s Br. 31-32. We disagree

because the relationship between Section 806 and the wire

fraud and securities fraud statutes is too tenuous to overcome

the presumption against extraterritoriality.

In support of his position, Garvey seeks to rely on the

Supreme Court’s decision in RJR Nabisco, in which Court

examined whether separate sections of the Racketeer

Influenced and Corrupt Organizations Act (“RICO”) have

extraterritorial reach. In RJR Nabisco, the Court held that

“RICO gives a clear, affirmative indication that § 1962 applies

to foreign racketeering activity—but only to the extent that the

23

predicates alleged in a particular case themselves apply

extraterritorially. Put another way, a pattern of racketeering

activity may include or consist of offenses committed abroad

in violation of a predicate statute for which the presumption

against extraterritoriality has been overcome.” 579 U.S at 339.

Garvey analogizes Section 806 to Section 1962 in RICO. He

contends that, like Section 1962, Section 806 must have “some

extraterritorial application” – presumably, to the extent that the

wire and securities fraud statutes apply extraterritorially.

Petitioner’s Br. 32. He further asserts that the “[t]he wire fraud

statute . . . contains an express indication of extraterritoriality

by prohibiting fraudulent wire communications in foreign

commerce.” Id. at 31 n.30. And he says that “[t]he securities

fraud statute . . . contains a ‘clear indication of extraterritorial

effect’ by incorporating fraud in connection with the trading of

publicly traded securities of foreign companies.” Id. at 31-32

n.30 (citation omitted).

The flaw in Garvey’s argument is that, unlike RICO

Section 1962, Section 806 does not create liability for a

violation of any of the referenced statutes or require proof that

any of them occurred. Rather, a person filing a complaint under

Section 806 need only “reasonably believe[]” that one of the

enumerated crimes occurred. See 18 U.S.C. § 1514A(a)(1); 29

C.F.R. § 1980.102. The reported conduct need not violate those

fraud statutes if the employee’s belief in the violation is

reasonable. So whether their prohibitions on fraud apply

extraterritorially is irrelevant to whether Section 806’s

prohibition on retaliation does as well.

Even if the fraud statutes referenced in Section 806 were

relevant and even if they applied extraterritorially, Garvey’s

argument would fail. In citing RJR Nabisco, he fails to

acknowledge the parts of the Court’s opinion which

distinguished between RICO’s substantive prohibitions on

24

patterns of racketeering (in 18 U.S.C. § 1962(a)-(d)) and

RICO’s private right of action (in 18 U.S.C. § 1964(c)). See

579 U.S. at 346. The Court found that Section 1964(c) of RICO

was not rendered extraterritorial merely because it provides

relief for those injured “by reason of a violation of section

1962.” Id. The Court found that Section 1964(c)’s reference to

Section 1962, a provision with extraterritorial reach, did not

thereby imbue Section 1964(c) with extraterritorial effect. Id.

at 347-50. The Court explained that Section 1964(c)’s scope

had to be evaluated separately from Section 1962’s because

“‘[t]he creation of a private right of action raises issues beyond

the mere consideration whether underlying primary conduct

should be allowed or not,’” including the potential for conflict

with international laws. RJR Nabisco, 579 U.S. at 346 (quoting

Sosa v. Alvarez-Machain, 542 U.S. 692, 727 (2004)). Like

Section 1964, Section 806 creates a private right of action that

“carries with it significant foreign policy implications.” RJR

Nabisco, 579 U.S. at 347 (citation omitted) (internal quotation

marks omitted). Its mere reference to fraud statutes that may

have some extraterritorial application, absent any clear indicia

that Congress also intended the Section 806 whistleblower

protections to apply abroad, fails to rebut the presumption

against extraterritoriality.

We need not decide whether either fraud statute in fact has

extraterritorial effect. See Sec. & Exch. Comm’n v. Bio Def.

Corp., No. CV 12-11669-DPW, 2019 WL 7578525, at *12

n.19 (D. Mass. Sept. 6, 2019), aff’d sub nom. Sec. & Exch.

Comm’n v. Morrone, 997 F.3d 52 (1st Cir. 2021) (“The

question whether the wire fraud statute . . . applies

extraterritorially has split the circuits.”); Petitioner’s Br. 31

n.30 (conceding that the securities fraud statute “contains no

express extraterritorial authority”). Even assuming they do, we

cannot infer from their limited relationship to Section 806 that

25

Congress intended to apply Section 806 to employment actions

abroad.

Congress has had ample opportunities since SOX’s

passage in 2002 to amend Section 806 to give it extraterritorial

effect, as it has done with other statutes. The First Circuit has

concluded – and we agree – that Congress’s silence regarding

extraterritorial reach in Section 806 strongly suggests a lack of

congressional intent to allow a cause of action in a case such as

this, i.e., involving retaliation against a person whose exclusive

place of employment is outside the United States and whose

contract of employment is governed by the laws of a foreign

nation. “We hold that 18 U.S.C. § 1514A does not reflect the

necessary clear expression of congressional intent to extend its

reach beyond our nation's borders.” Carnero, 433 F.3d at 18.

D. The Record in This Case Does Not Support a

Domestic Application of Section 806

As we explained in the introduction to this opinion,

Garvey has no cause of action under Section 806 unless this

case involves a domestic application of the statute. See

WesternGeco LLC v. ION Geophysical Corp., 585 U.S. __, 138

S. Ct. 2129, 2136 (2018) (citing RJR Nabisco, 579 U.S. at 337-

38). In our view, Garvey’s complaint does not present a

permissible domestic application of the law.

In making this determination, we first consider the

statute’s focus and then consider the facts alleged to determine

whether the conduct relevant to that focus occurred in the

United States. Id. To determine a statute’s focus, courts look to

the “conduct [the statute] seeks to regulate, as well as the

parties and interests it seeks to protect or vindicate.” Id. at 2137

(cleaned up). “[I]f the conduct relevant to the focus occurred in

a foreign country, then the case involves an impermissible

26

extraterritorial application regardless of any other conduct that

occurred in U.S. territory.” RJR Nabisco, 579 U.S. at 337.

We hold that the clear focus of Section 806 is on

regulating employment relationships – specifically prohibiting

covered employers from retaliating against employees for

engaging in the protected activities enumerated in the statute.

In assessing the applicability of Section 806, the locus of an

employee’s work and the terms of his or her employment

contract are critically important. Garvey’s attempt to apply

Section 806 to alleged retaliation against him, notwithstanding

that his exclusive place of employment was outside the United

States and his contract of employment was governed by the

laws of a foreign nation, is necessarily extraterritorial.

It is undisputed that, at all relevant times, Garvey’s

exclusive places of work were outside the United States, in the

Morgan Stanley Japan Group in Tokyo and in Morgan Stanley

Asia Limited in Hong Kong. Therefore, Garvey’s complaint

does not implicate a domestic application of the statute.

Section 806’s Focus. Although the stated purpose of SOX

is to protect investors and build confidence in U.S. securities

markets, the provision relevant here – Section 806 – was

specifically designed to afford remedies to employees of

specified offending companies. See Digital Realty Trust, Inc.

v. Somers, 138 S. Ct. 767, 774 (2018) (describing Section 806

as a statute that prohibits “employment discrimination,” not

securities fraud generally) (citation omitted).

Specifically, Section 806 was designed to protect

employees from retaliation by making it unlawful for a

company to “discharge, demote, suspend, threaten, harass, or

in any other manner discriminate against an employee in the

terms and conditions of employment because of [the

27

employee’s protected activity].” 18 U.S.C. § 1514A(a). Section

806 is directly connected to an employee’s terms and

conditions of employment, as it was enacted to provide

“protection for employees of publicly traded companies who

blow the whistle on fraud and protect investors.” S. REP. NO.

107-146, at 10 (emphasis added). Its “focus” – that is, the

conduct it regulates – is on prohibiting employment-related

retaliation.

It is also noteworthy that the relevant venue provisions

covering complaints under Section 806 presume that an alleged

violation occurred or that the complainant lived within the

jurisdiction of a U.S. federal court. See 49 U.S.C.

§ 42121(b)(4)(A), (b)(5), incorporated into 18 U.S.C.

§ 1514A(b). This would not apply to complainants who

suffered retaliation while working abroad.

Garvey counters that Section 806 is focused on preventing

corporate or securities fraud by prohibiting retaliation against

whistleblowers and thus should apply whenever the fraudulent

conduct reported would affect U.S. investors. Petitioner’s Br.

52-53. But this is not what the text of the statute directs. As

discussed above, although Section 806’s protections may

bolster reporting of corporate fraud and securities violations,

its primary focus is on regulating employment.

Section 806 was not intended to cure all the ills of the

securities markets; it addresses only retaliatory conduct by

certain regulated companies against certain employees who

engage in enumerated protected activities. See 18 U.S.C. §

1514A(a)(1). Not all companies are covered, and not all

employees are protected. And there is no cause of action under

Section 806 for securities fraud.

28

Extraterritorial Nature of Garvey’s Claims. It is

undisputed that the locus of Garvey’s employment was Asia,

not the United States. He not only worked exclusively

overseas, he also agreed to an employment agreement

governed by the laws of Hong Kong, under “the exclusive

jurisdiction of its courts and the Labour Tribunal.” J.A. 151.

Garvey nonetheless insists he may allege a domestic

application by asserting that corporate decisionmakers in the

United States directed the retaliation campaign against him,

Petitioner’s Br. 54-55; the fraudulent activity impacted United

States markets, id. at 52-53; and Morgan Stanley intimidated

his chosen counsel, imperiling his whistleblower complaint

under U.S. laws, id. at 62. Garvey also underscores his U.S.

citizenship and the location of Morgan Stanley Asia Limited’s

parent company in New York. Id. at 14-16, 21, 55-56. These

allegations neither change the overseas locus of Garvey’s

employment nor make the conduct domestic. See Morrison,

561 U.S. at 266 (allegedly deceptive conduct occurring in the

United States did not make claim domestic); Liu Meng-Lin v.

Siemens AG, 763 F.3d 175, 180 (2d Cir. 2014) (“[S]imply

alleging that some domestic conduct occurred cannot support a

claim of domestic application because it is a rare case of

prohibited extraterritorial application that lacks all contact with

the territory of the United States.”) (cleaned up).

Unless a statute provides otherwise, a U.S. law regulating

an employee’s terms and conditions of employment does not

automatically confer protections to individuals, like Garvey,

who have opted to work outside the United States. See

Milanovich v. Costa Crociere, 954 F.2d 763, 767 (D.C. Cir.

1992) (“Under American law, contractual choice-of-law

provisions are usually honored.”) (citing Restatement (Second)

of Conflict of Laws § 187 (Am. L. Inst. 1971)); Carnero, 433

F.3d at 15 (declining to extend Section 806 extraterritorially in

29

light of other countries’ interests in regulating employment

relationships).

There may be some situations in which the relationship

between an employee who works overseas and the parent

company in the United States is so intertwined that a domestic

application of Section 806 may be viable. That is not this case,

so we will not opine on the matter. In this case, the alleged

involvement of Morgan Stanley in decisions about Garvey’s

employment at Morgan Stanley Asia Limited is insufficient to

create a domestic application of Section 806, as “allegations of

general corporate activity—like decisionmaking—cannot

alone establish [a] domestic application.” Nestlé USA, Inc. v.

Doe, 593 U.S. ___, 141 S. Ct. 1931, 1937 (2021); see also

Carnero, 433 F.3d at 2-3 (the involvement of some U.S.-based

personnel in the decision to take adverse employment action

overseas does not give rise to a domestic application of SOX);

Johnson v. Flowers Indus., Inc., 814 F.2d 978, 980 (4th Cir.

1987) (adverse employment actions by a subsidiary are not

generally attributable to a parent company).

The alleged retaliation against Garvey occurred solely in

connection with his work for Morgan Stanley Asia Limited, an

extraterritorial employer. This case does not involve a domestic

application of Section 806 and thus fails the second step under

Morrison.

E. Garvey’s Allegations Regarding Post-Employment

Actions Fail

Garvey contends that Morgan Stanley threatened the

attorneys he retained, leading to their withdrawal from the case

and “significantly prejudic[ing] Petitioner’s ability to seek

effective redress under Section 806 with respect to his

underlying claims.” Petitioner’s Br. 62. This, Garvey asserts,

30

“must itself constitute an adverse employment action, and a

domestic application” of Section 806, even if it occurred after

his employment with Morgan Stanley Asia Limited ended. Id.

at 64. We disagree.

The alleged conduct – harassment of Garvey’s counsel –

could not establish a domestic application of Section 806, as it

occurred after Garvey’s employment at Morgan Stanley Asia

Limited ended and did not impact the terms and conditions of

his employment. Moreover, there is no evidence that either

Morgan Stanley or Morgan Stanley Asia Limited sought to

negatively affect Garvey’s post-employment opportunities.

Absent interference with an employee’s current employment or

future employment prospects, contested actions arising after

employment has terminated do not constitute adverse

employment actions. We agree with the Board’s holding that

post-employment conduct cannot undergird a claim under

Section 806 where such conduct does not impact the terms and

conditions of a complainant’s employment. Accordingly,

Garvey’s allegations are not within the compass of protections

afforded by Section 806.

III. CONCLUSION

For the foregoing reasons, we affirm the Board’s judgment

and deny Garvey’s petition for review.

So ordered.