Amicus Curiae Brief — Trevor Murray, Petitioner v. UBS Securities, LLC, et al.

Supreme Court briefFeb 17, 2023

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No. 22-660

IN THE

Supreme Court of the United States

TREVOR MURRAY,

Petitioner,

UBS SECURITIES, LLC AND UBS AG,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

BRIEF OF AMICUS CURIAE PUBLIC CITIZEN

IN SUPPORT OF PETITIONER

ADAM R. PULVER

Counsel of Record

SCOTT L. NELSON

ALLISON M. ZIEVE

PUBLIC CITIZEN

LITIGATION GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

apulver@citizen.org

Attorneys for Amicus Curiae

February 2023

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICUS CURIAE ............................ 1

SUMMARY OF ARGUMENT .................................... 1

ARGUMENT ............................................................... 3

The court of appeals ignored Congress’s decision

not to require evidence of impermissible motive. 3

II. The Second Circuit’s error has the potential to

impact a growing set of statutory regimes. ......... 9

CONCLUSION.......................................................... 11

TABLE OF AUTHORITIES

Cases

Page(s)

AFSCME v. Washington,

770 F.2d 1401 (9th Cir. 1985) .................................. 5

Ameristar Airways, Inc. v. Administrative Review

Board, United States Department of Labor,

771 F.3d 268 (5th Cir. 2014) .................................... 8

Araujo v. New Jersey Transit Rail Operations, Inc.,

708 F.3d 152 (3d Cir. 2013) ................................. 5, 8

Babrocky v. Jewel Food Co.,

773 F.2d 857 (7th Cir. 1985) .................................... 6

Eastern Associated Coal Corp. v. Federal Mine Safety

& Health Review Commission,

813 F.2d 639 (4th Cir. 1987) .................................... 6

Feldman v. Law Enforcement Associates Corp.,

752 F.3d 339 (4th Cir. 2014) .................................... 7

Frobose v. American Savings & Loan Assn of

Danville,

152 F.3d 602 (7th Cir. 1998) .................................... 8

Frost v. BNSF Railway Co.,

914 F.3d 1189 (9th Cir. 2019) .................................. 5

Grant v. Bethlehem Steel Corp.,

622 F.2d 43 (2d Cir. 1980) ....................................... 6

Gross v. FBL Financial Services, Inc.,

557 U.S. 167 (2009) .................................................. 5

iii

Guam v. United States,

141 S. Ct. 1608 (2021) .............................................. 3

Halliburton, Inc. v. Administrative Review Board,

United States Department of Labor,

771 F.3d 254 (5th Cir. 2014) ................................ 5, 8

International Brotherhood of Teamsters v. United

States,

431 U.S. 324 (1977) .................................................. 5

Lockheed Martin Corp. v. Administrative Review

Board, United States Department of Labor,

717 F.3d 1121 (10th Cir. 2013) ................................ 7

Marano v. Department of Justice,

2 F.3d 1137 (Fed. Cir. 1993) ................................ 6, 7

Maverick Transportation, LLC v. United States

Department of Labor, Administrative Review

Board,

739 F.3d 1149 (8th Cir. 2014) .................................. 8

McAlester v. United Air Lines, Inc.,

851 F.2d 1249 (10th Cir. 1988) ............................ 5, 6

McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973) .................................................. 7

Monessen Southwestern Railway Co. v. Morgan,

486 U.S. 330 (1988) .................................................. 9

Mt. Healthy City School District Board of Education

v. Doyle,

429 U.S. 274 (1977) .................................................. 6

Patterson v. McLean Credit Union,

491 U.S. 164 (1989) .................................................. 9

Pierson v. Ray,

386 U.S. 547 (1967) .................................................. 9

Stone & Webster Engineering Corp. v. Herman,

115 F.3d 1568 (11th Cir. 1997) ................................ 7

Trimmer v. United States Department of Labor,

174 F.3d 1098 (10th Cir. 1999) ................................ 7

United States v. LaBonte,

520 U.S. 751 (1997) .................................................. 9

United States v. Wiltberger,

5 Wheat. 76 (1820) ................................................... 9

University of Texas Southwestern Medical Center v.

Nassar,

570 U.S. 338 (2013) .................................................. 3

Wilcoxson v. United States Postal Service,

812 F.2d 1409 (table), 1987 WL 36561 (6th Cir.

1987) ......................................................................... 6

Wooden v. United States,

142 S. Ct. 1063 (2022) .............................................. 9

Statutes

5 U.S.C. § 1221(e)........................................................ 5

6 U.S.C. § 1142(c)(2)(B) ............................................ 10

12 U.S.C. § 5567(c)(3) ............................................... 10

15 U.S.C. § 7a-3(b)(2) ................................................ 10

15 U.S.C. § 2087(b)(2) ............................................... 10

18 U.S.C. § 1514A ........................................... 2, 3, 4, 7

18 U.S.C. § 1514A(a) ................................................... 3

18 U.S.C. § 1514A(b)(2) .............................................. 4

21 U.S.C. § 399d(b)(2)(C) .......................................... 10

26 U.S.C. § 7623(d)(2)(B) .......................................... 10

29 U.S.C. § 218c(b)(1) ............................................... 10

31 U.S.C. § 5323(g)(3)(A) .......................................... 10

41 U.S.C. § 4712(c)(6) ............................................... 10

42 U.S.C. § 5851(b)(3)(A) ............................................ 7

46 U.S.C. § 2114(b) ................................................... 10

49 U.S.C. § 30171(b)(2)(B) ........................................ 10

49 U.S.C. § 31105(b)(1) ............................................... 8

49 U.S.C. § 42121(b) ................................................... 4

49 U.S.C. § 42121(b)(2)(B)(i)....................................... 4

49 U.S.C. § 42121(b)(2)(B)(ii) ..................................... 4

49 U.S.C. § 60129(b)(2)(B) ........................................ 10

Pub. L. No. 101-12, 103 Stat. 16 ................................ 5

Pub. L. No. 102-486, § 2902(d), 106 Stat. 2776, 3123–

24 .............................................................................. 7

Other Authorities

Gerlach v. FTC,

8 M.S.P.B. 599 (1981) .............................................. 6

Senate Report No. 413, 100th Congress, 2d Session

(1988) ....................................................................... 7

INTEREST OF AMICUS CURIAE1

Public Citizen, a consumer-advocacy organization

with members and supporters in all fifty states, works

before Congress, administrative agencies, and courts

for enactment and enforcement of laws protecting

consumers, workers, and the public. Public Citizen

has a longstanding interest in the effective

enforcement of laws, such as the Sarbanes-Oxley Act

of 2002 (SOX), that aim to ensure corporate

accountability and transparency, as well as in

ensuring that employees have meaningful access to

statutory remedies for unlawful employment actions.

Public Citizen believes that the Second Circuit’s

decision in this case, which imposes on plaintiffs

alleging unlawful whistleblower retaliation the

burden of proving retaliatory motive, is contrary to

both the text and purpose of SOX and significantly

weakens the statute’s protections of workers and the

public. Given the similarity between the language and

structure of SOX and other statutes that protect

employees from unlawful retaliation, Public Citizen is

concerned that the Second Circuit’s flawed reasoning

could be expanded to other statutes—contrary to

Congress’s express direction.

SUMMARY OF ARGUMENT

Many federal statutes make it unlawful for

employers to take employment actions “because of”

protected statuses and activities. What a plaintiff

must prove to establish a violation of each statute

1 This brief was not authored in whole or part by counsel for

a party. No one other than amicus curiae made a monetary

contribution to preparation or submission of the brief. Counsel

for all parties received more than ten days’ notice of the filing of

the brief.

varies, though, based on differences in statutory text

and structure. In cases where Congress has not been

specific, this Court and other courts have used various

interpretative tools to discern the plaintiff’s burden of

proof. But where Congress has specified the applicable

standard, this Court has recognized that it is

ultimately Congress’s prerogative to do so and the

courts’ job to apply Congress’s decision.

Congress exercised this prerogative in enacting the

whistleblower retaliation provisions of the SarbanesOxley Act, 18 U.S.C. § 1514A. In that statute,

Congress specified that, to make a case that an

employer took action “because of” activity protected by

that statute, a plaintiff need only show that the

protected activity was a “contributing factor” in the

employer’s decisionmaking, at which point the burden

would shift to the employer. In so doing, Congress

incorporated language from other statutes that was

expressly designed to eliminate the requirement that

plaintiffs prove motive or intent, which courts had

read into statutes without this language.

In the decision below, the Second Circuit

disregarded the express statutory language and,

under the guise of a “plain meaning” analysis that

failed even to address the relevant statutory

provision, held that a claim under a statute that

prohibits employment action “because of” a protected

activity necessarily imposes a burden on the plaintiff

to show that the decision was “motivated” by that

protected characteristic or activity. In so doing, the

court ignored Congress’s deliberate choice to require a

lesser standard of causation for SOX claims, as

recognized by other courts of appeals.

Because

the

Second

Circuit’s

decision

substantially weakens the protections Congress

deemed necessary to ensure that employees freely

report violations of the substantive provisions of SOX,

and because its reasoning could also make it difficult

for whistleblowers to bring successful claims under a

variety of statutes where Congress has dictated the

same burden of proof, the Court should grant the

petition and reverse.

ARGUMENT

I. The court of appeals ignored Congress’s

decision not to require evidence of

impermissible motive.

Section 1514A makes it unlawful to “discriminate

against an employee in the terms and conditions of

employment because of” various protected activities.

18 U.S.C. § 1514A(a). In concluding that a plaintiff

pursuing a claim of unlawful retaliation under SOX

must establish “retaliatory intent,” the Second Circuit

relied solely on what it referred to as the “plain

meaning” of the words “discriminate” and “because” in

subsection (a), without considering the other relevant

provisions of section 1514A. Pet. App. 9a–10a.

“[S]tatutes must be read as a whole.” Guam v.

United States, 141 S. Ct. 1608, 1613 (2021) (cleaned

up). And whatever the words “discriminate” and

“because” would indicate about what a plaintiff must

prove if they were the only clues in the statute, SOX

says more. Indeed, the statute specifically addresses

the question of what is necessary for an employee

bringing a retaliation claim to prove. Cf. Univ. of Tex.

Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352–45 (2013)

(concluding that what plaintiff must prove to show

employment action was “because of” protected status

or activity varies under two provisions of Title VII, in

light of Congress’s specification of a specific standard

that governs only one).

Specifically, SOX provides that section 1514A

enforcement actions “shall be governed by the legal

burdens of proof set forth in section 42121(b) of title

49, United States Code.” 18 U.S.C. § 1514A(b)(2).

Section 42121(b), enacted as part of the Wendell H.

Ford Aviation Investment and Reform Act for the 21st

Century (AIR-21), contains a detailed burden-shifting

framework for complaints for “discriminat[ion]

against an employee … because the employee”

engaged in a variety of aviation-related whistleblower

activities. It requires the Secretary of Labor, who is

charged with adjudicating complaints under that

provision, to dismiss complaints “unless the

complainant makes a prima facie showing that any

[protected whistleblower activity] was a contributing

factor in the unfavorable personnel action alleged in

the complaint.” 49 U.S.C. § 42121(b)(2)(B)(i). If the

complainant makes that showing, the burden shifts to

the employer to demonstrate that it “would have

taken the same unfavorable personnel action in the

absence

of”

the

protected

activity.

Id.

§ 42121(b)(2)(B)(ii). The concept of retaliatory motive

or intent does not appear in the AIR-21 standard.

Nowhere in its opinion did the Second Circuit

acknowledge section 1514A(b)(2) or the AIR-21

standard that it expressly incorporates, much less

explain why an employee must meet a standard that

differs from the one the statute provides. Courts,

however, are not free to ignore Congress’s explicit

determination as to who bears what burden of proof.

As this Court has recognized, whether or not to

require a plaintiff to show that “a forbidden motive

played a role in the employer’s decision … is a decision

for Congress to make.” Gross v. FBL Fin. Servs., Inc.,

557 U.S. 167, 177 n.3 (2009).

In enacting SOX, Congress made the decision that

“the only proof of discriminatory intent that a plaintiff

is required to show is that his or her protected activity

was a ‘contributing factor’ in the resulting adverse

employment action.” Frost v. BNSF Ry. Co., 914 F.3d

1189, 1195 (9th Cir. 2019) (discussing the AIR-21

standard as applied to Federal Railroad Safety Act

(FRSA) retaliation claim). A contributing factor “is the

required showing of intentional discrimination.” Id.

Thus, as several courts of appeals have recognized,

“there is no requirement that [] plaintiffs separately

prove discriminatory intent.” Id.; see Halliburton, Inc.

v. Admin. Rev. Bd., 771 F.3d 254, 263 (5th Cir. 2014)

(under section 1514A, where an employee shows

protected activity was a “contributing factor,” the

employee need not “prove that the employer had a

‘wrongful motive’ too”); Araujo v. New Jersey Transit

Rail Operations, Inc., 708 F.3d 152, 161 (3d Cir. 2013)

(similar, under the FRSA).

This textual analysis is supported by the context in

which Congress has enacted contributing-factor

burden-shifting schemes. The term “contributing

factor” first appeared in the Whistleblower Protection

Act of 1989, Pub. L. No. 101-12, 103 Stat. 16, codified

at 5 U.S.C. § 1221(e). At that time, courts had held

that “proof of discriminatory motive is critical to

establish a prima facie case of discrimination” under

discrimination and whistleblower protection statutes.

AFSCME v. Washington, 770 F.2d 1401 (9th Cir.

1985) (citing Int’l Bhd. of Teamsters v. United States,

431 U.S. 324, 335 n. 15 (1977)) (Title VII case); see

also, e.g. McAlester v. United Air Lines, Inc., 851 F.2d

1249, 1260 (10th Cir. 1988) (recognizing that a Title

VII plaintiff “must produce evidence of discriminatory

intent or motive to establish a prima facie case”); E.

Assoc. Coal Corp. v. Fed. Mine Safety & Health Rev.

Comm’n, 813 F.2d 639, 642 (4th Cir. 1987) (noting that

it was “well settled” that a whistleblower must show

that an adverse action “was motivated” by protected

activity as part of the prima facie case under the nonretaliation provision of Mine Safety and Health Act);

Wilcoxson v. U.S. Postal Service, 812 F.2d 1409 (table),

1987 WL 36561, at *2 (6th Cir. 1987) (requiring a

plaintiff to show retaliatory motive for a Title VII

reprisal claim); Babrocky v. Jewel Food Co., 773 F.2d

857, 868 (7th Cir. 1985) (stating that a prima facie

showing of a Title VII claim required “some indication

that the [defendant]’s actions were motivated by

discriminatory animus”); Grant v. Bethlehem Steel

Corp., 622 F.2d 43, 46 (2d Cir. 1980) (recognizing that

a Title VII retaliation plaintiff must establish

“retaliatory motive play[ed] a part in the adverse

employment actions”).2

In enacting the Whistleblower Protection Act,

Congress overrode this interpretation, based on its

determination that requiring civil service whistleblowers to show that their protected activity

“constituted a ‘significant’ or ‘motivating’ factor”

imposed an “excessively heavy burden … on the

employee.” Marano v. Dep’t of Justice, 2 F.3d 1137,

1140 (Fed. Cir. 1993) (discussing legislative history).

2 The Merit Systems Protection Board had also incorporated

a motivating factor requirement for cases of reprisal under the

Civil Service Reform Act. See Gerlach v. FTC, 8 M.S.P.B. 599,

604–05 (1981) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274, 285–86 (1977)).

Congress used the term “contributing factor” to effect

a “substantial reduction of the whistleblower’s

burden.” Id. (citations omitted). This deliberate choice

reflected the view that, “[r]egardless of the official’s

motives, personnel actions against employees should

quite simply not be based on protected activities such

as whistleblowing.” S. Rep. No. 413, 100th Cong., 2d

Sess. 16 (1988), quoted in Marano, 2 F.3d at 1141; see

Feldman v. Law Enforcement Assocs. Corp., 752 F.3d

339, 348 (4th Cir. 2014) (applying Marano to SOX

section 1514A claim); Lockheed Martin Corp. v.

Admin. Rev. Bd., U.S. Dep’t of Labor, 717 F.3d 1121,

1136 (10th Cir. 2013) (same).

Since 1989, Congress has incorporated the

contributing factor standard into several other

statutes to eliminate judicially imposed motive

requirements. For example, in 1992, Congress

amended the Energy Reorganization Act “to include a

burden-shifting framework distinct from the Title VII

employment-discrimination burden-shifting framework first established by McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 800–05 (1973),” as it “desired to

make it easier for whistleblowers to prevail in their

discrimination suits.” Trimmer v. U.S. Dep’t of Labor,

174 F.3d 1098, 1101 (10th Cir. 1999) (citing Energy

Policy Act of 1992, Pub. L. No. 102-486, § 2902(d), 106

Stat. 2776, 3123–24, codified at 42 U.S.C.

§ 5851(b)(3)(A)); see also Stone & Webster Eng’g Corp.

v. Herman, 115 F.3d 1568, 1572 (11th Cir. 1997)

(observing that the Energy Policy Act imposed “a

tough standard” for employers “and not by accident”).

Similarly, in 1993, Congress amended the

whistleblower protections of the Federal Deposit

Insurance Act, which courts had previously

interpreted as incorporating the same intent standard

as Title VII, to incorporate the contributing factor

burden of proof—an amendment that “quite clearly

ma[d]e it easier for the plaintiff to make her case

under the statute” by requiring only “circumstantial

evidence that her disclosure was a contributing (not

necessarily a substantial or motivating) factor in the

adverse personnel action.” Frobose v. Am. Sav. & Loan

Ass’n of Danville, 152 F.3d 602, 612 (7th Cir. 1998).

Again in 2000 when it enacted AIR-21, Congress used

the “contributing factor” standard “to protect

whistleblowers” in the airline industry by “mak[ing] it

difficult for employers to avoid paying damages in

‘mixed-motive cases.’” Ameristar Airways, Inc. v.

Admin. Rev. Bd., 771 F.3d 268, 273 (5th Cir. 2014).

Likewise, in 2007, after incorporating the AIR-21

standard into SOX, Congress incorporated the

standard into the Surface Transportation Assistance

Act (STAA). In so doing, it “imposed a lower burden on

the employee than existed previously [for retaliation

claims under that statute], when the employee was

required to show the protected activity had ‘motivated’

the adverse action.” Maverick Transp., LLC v. U.S.

Dep’t of Lab., Admin. Rev. Bd., 739 F.3d 1149, 1153

(8th Cir. 2014) (discussing 49 U.S.C. § 31105(b)(1)).

See also Araujo, 708 F.3d at 159–60 (noting legislative

history of incorporation of AIR-21 standard into FRSA

reflected that “Congress intended to be protective of

plaintiff-employees”).

In the Second Circuit’s view, though, Congress’s

decisions as to the standards that govern retaliation

claims under these and other statutes are

meaningless. Under the decision below, the words

“because of” require a plaintiff to prove impermissible

intent or motive, even where a statute explicitly sets

forth a different standard. The decision runs counter

to the fundamental principle of statutory

interpretation that “Congress remains free to alter

what [the courts] have done.” Patterson v. McLean

Credit Union, 491 U.S. 164, 173 (1989); see also

Pierson v. Ray, 386 U.S. 547, 561 (1967) (Douglas, J.,

dissenting) (“Congress enacts a statute to remedy the

inadequacies of the pre-existing law, including the

common law.”). It also contravenes the principle that

it is the courts’ job to apply the law that Congress has

written. Wooden v. United States, 142 S. Ct. 1063,

1083 (2022) (Gorsuch, J., concurring) (citing United

States v. Wiltberger, 5 Wheat. 76, 95 (1820)); United

States v. LaBonte, 520 U.S. 751, 757 (1997) (“[W]e

assume that in drafting legislation, Congress said

what it meant.”).

Whereas congressional failure to act in response to

a judicial interpretation of a statute may be an

“indication that Congress at least acquiesces in, and

apparently affirms, that interpretation,” Monessen

Sw. Ry. Co. v. Morgan, 486 U.S. 330, 338 (1988),

Congress’s amendment of statutory language in

response to judicial interpretation is clear evidence of

the opposite. When enacting SOX, and AIR-21,

Congress was aware that, absent specific language as

to the burden of proof regarding causation, courts had

read whistleblower protection statutes as requiring

plaintiffs to show retaliatory motive as part of their

case in chief. Congress’s choice to enact a different,

specific burden of proof governs over any default

judicial interpretation that would otherwise apply.

II. The Second Circuit’s error has the potential

to impact a growing set of statutory regimes.

The importance of the question raised by the

petition is magnified by the fact that Congress

continues to prescribe the same “contributing factor”

burden of proof, without a motive requirement, under

newer statutes designed to protect whistleblowers.

Congress did so twice in 2020 alone, in the Criminal

Antitrust Anti-Retaliation Act, 15 U.S.C. § 7a-3(b)(2)

and the Anti-Money Laundering Act, 31 U.S.C.

§ 5323(g)(3)(A), both of which incorporate the AIR-21

standard. Numerous other statutes take the same

approach. See Consumer Financial Protection Act, 12

U.S.C. § 5567(c)(3); Consumer Product Safety

Improvement Act, 15 U.S.C. § 2087(b)(2); Defense

Contractor Whistleblower Protection Act, 41 U.S.C.

§ 4712(c)(6); Food Safety Modernization Act, 21 U.S.C.

§ 399d(b)(2)(C); Moving Ahead for Progress in the 21st

Century Act, 49 U.S.C. § 30171(b)(2)(B); National

Transit Systems Security Act, 6 U.S.C. § 1142(c)(2)(B);

Patient Protection and Affordable Care Act, 29 U.S.C.

§ 218c(b)(1); Pipeline Safety Improvement Act of 2002,

49 U.S.C. § 60129(b)(2)(B); Seaman’s Protection Act,

46 U.S.C. § 2114(b); Taxpayer First Act, 26 U.S.C.

§ 7623(d)(2)(B)).

Congress’s repeated enactment of statutes

dictating that an employee need only demonstrate

that protected activity was a contributing factor in an

employment action to make out their case in chief

makes review of the decision below important for two

reasons. First, it highlights that, by adding a

retaliatory intent requirement for SOX whistleblower

cases, the Second Circuit’s decision threatens to

weaken statutory regimes beyond those that govern

financial reporting, including those that ensure the

safety of vital infrastructure. Second, the ubiquity of

statutes setting forth the same standard reflects

Congress’s determination that the standard means

something different than what courts have discerned

from the words “because of” and “discriminate” viewed

in isolation. Should this Court disagree that

Congress’s approach is adequate to effect Congress’s

desired result, it would be best for Congress to learn

sooner, rather than later, so that it can respond in

turn.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,