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

No. 22-660

In The

Supreme Court of the United States

TREVOR MURRAY,

Petitioner,

v.

UBS SECURITIES, LLC AND UBS AG,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF OF AMICI CURIAE

U.S. SENATOR CHARLES E. GRASSLEY

AND U.S. SENATOR RON WYDEN

IN SUPPORT OF PETITIONER

Jason Zuckerman

ZUCKERMAN LAW

1629 K Street, NW

Suite 300

Washington, DC 20006

Alan B. Morrison

Counsel of Record

2000 H Street, NW

Washington, DC 20052

202 994 7120

abmorrison@law.gwu.edu

Thomas M. Devine

GOVERNMENT ACCOUNTABILITY PROJECT

1612 K Street, NW

Suite 1100

Washington, DC 20006

Counsel for Amici Curiae

i

TABLE OF CONTENTS

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

INTEREST OF AMICI CURIAE ................................1

INTRODUCTION & SUMMARY OF ARGUMENT ..2

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

THE DECISION BELOW SHOULD BE

REVERSED, AND THE CASE REMANDED FOR

FURTHER PROCEEDINGS ON THE CROSSAPPEAL BY PETITIONER ........................................6

A.

The Plain Meaning of the Applicable Statute

Does Not Require an Employee to Prove

Retaliatory Intent .............................................6

B.

Other Federal Whistleblower Statutes and the

Specific History of the Whistleblower

Provisions of SOX Confirm that the Second

Circuit Erred...................................................14

CONCLUSION ..........................................................22

ii

TABLE OF AUTHORITIES

CASES

Araujo v. New Jersey Transit Rail Ops, Inc., 708 F.3d

152 (3d Cir. 2013)................................................... 19

Colorado v. New Mexico, 467 U.S. 310 (1984) .......... 11

Free Enterprise Fund v. Public Co. Accounting

Oversight Bd., 561 U.S. 477 (2010) ......................... 6

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

………………………………………………6, 7, 10, 13, 20

Lockhart v. United States, 577 U.S. 347

(2016)………………………………………………….…11

Marano v. Dept. of Justice, 2 F.3d 1137 (Fed. Cir.

1993) ......................................................16, 17, 18, 19

McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973) ...................................................................... 15

Neylon v. BNSF Railway, 968 F.3d 724 (8th Cir.

2020) ....................................................................... 19

Petitt v. Delta Airlines, Inc., ARB No. 2021-0014,

2022 WL 1091413 (March 29, 2022)...................... 13

Texas Department of Community Affairs v. Burdine,

450 U.S. 248 (1981) .......................................... 15, 16

TransAm Trucking, Inc. v. Admin. Rev. Bd., 833 F.3d

1206 (10th Cir. 2016) ............................................. 13

Whitmore v. Dep’t of Labor, 680 F.3d 1353 (Fed. Cir.

2012) ....................................................................... 12

iii

STATUTES

5 U.S.C. § 1221 .......................................................... 17

5 U.S.C. § 2302 ...................................................... 1, 10

5 U.S.C. § 2308 .......................................................... 16

18 U.S.C. § 1513 ........................................................ 10

18 U.S.C. § 1514A............... 1, 3, 7, 9, 10, 11, 15, 19, 21

42 U.S.C. § 5851 .......................................................... 2

49 U.S.C. § 42121 ...........................1, 3, 8, 9, 11, 19, 20

Civil Service Reform Act of 1978, Pub. L. No. 95-454,

92 Stat. 1111 .......................................................... 16

Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116

Stat. 745 ................................................................... 1

Wendell H. Ford Aviation Investment and Reform

Act for the 21st Century, Pub. L. No. 106-181, 114

Stat 61 (2020) ........................................................... 8

Whistleblower Protection Act of 1989, Pub. L. No.

101-12, 103 Stat. 16 ........................................... 1, 16

REGULATIONS

17 C.F.R. § 242.501 ..................................................... 2

29 C.F.R. § 1980.100-115 .......................................... 12

29 C.F.R. § 1980.104 ................................................. 12

29 C.F.R. § 1980.109 ................................................. 13

29 C.F.R. § 1980.114 ................................................. 13

iv

LEGISLATIVE MATERIALS

135 Cong. Rec. 5033 (1989) ................................. 16, 18

135 Cong. Rec. 4509 (1989) ....................................... 18

148 Cong. Rec. S1787 (2002)....................................... 7

S. Rep. 107-146 (2002) .............................6, 7, 9, 20, 21

OTHER AUTHORITIES

C. McCormick, Law of Evidence § 320 (1954) .......... 11

Comments on Proposed Rules for Implementing the

Whistleblower Provisions of Section 21F of the

Securities Exchange Act of 1934,

http://www.sec.gov/comments/s7-33-10/s73310110.pdf .................................................................... 14

Antonin Scalia and Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts 167

(2012)……………………………………...……………11

McBaine, Burden of Proof: Degrees of Belief, 32 Calif.

L. Rev. 242 (1944) .................................................. 12

1

INTEREST OF AMICI CURIAE 1

Amicus Senator Charles E. Grassley is the Chair

of the bipartisan U.S. Senate Whistleblower

Protection Caucus. He co-authored the Whistleblower

Protection Act of 1989 (WPA), Pub. L. No. 101-12, 103

Stat. 16, codified at 5 U.S.C. § 2302(b)(8). That statute

is the source of the burden of proof in the

whistleblower protection provisions of the SarbanesOxley Act of 2002 (SOX), Pub. L. No. 107-204, 116

Stat. 745, 18 U.S.C. § 1514A, which he co-sponsored,

and which is at issue in this case. He also led the

inclusion of the burdens of proof for whistleblower

protections in the Wendell H. Ford Aviation Security

Act, 49 U.S.C. § 42121, which are incorporated into

SOX. In more than thirty years legislating for

effective whistleblower protection laws and programs,

Senator Grassley has cultivated a unique expertise in

what makes whistleblowing work and the invaluable

role that whistleblowers play in protecting taxpayers

and

investors

in

addition

to

individual

whistleblowers. Senator Grassley thus has a strong

interest in ensuring that the Court interprets SOX in

accordance with the plain text and congressional

intent.

Amicus Senator Ron Wyden serves as ViceChairman

of

the

bipartisan

U.S.

Senate

Whistleblower Protection Caucus. He was the original

sponsor of legislation in the House of Representatives

that ultimately became the Energy Reorganization

Act whistleblower amendments for protection of

1 Pursuant to Supreme Court Rule 37.6, undersigned counsel

states that no party’s counsel authored this brief in whole or in

part and no person or entity other than the amici or their counsel

contributed money to its preparation or submission.

2

nuclear workers, 42 U.S.C. § 5851—the precedential

private-sector whistleblower protection statute that

first employed the WPA’s burden of proof in the

private sector and incorporated the two-part test at

issue in this proceeding.

Amici submit this brief because they believe that

the Second Circuit seriously erred in imposing a

burden of proof on petitioner that is nowhere found in

SOX. This brief is written from the perspective of

Members of Congress who wrote the provisions at

issue, which amici believe will assist the Court in

properly understanding the applicable burden of

proof in the whistleblower provisions of SOX.

INTRODUCTION & SUMMARY OF

ARGUMENT

In April 2011, three years after the nationwide

collapse of the fraudulent mortgage-backed securities

market triggered the greatest stock market crash

since 1929, a prominent Wall Street firm, respondent

UBS Securities, LLC, hired petitioner Trevor Murray

for its mortgage-backed securities department. UBS

assigned him to write reports for its clients that UBS

promised would be unbiased and, therefore,

trustworthy. Although SEC regulations required

analysts like Murray to certify that such reports

reflected their “independent” judgment, SEC

Regulation AC, 17 C.F.R. § 242.501 (2015), UBS’ sales

team pressured him to “play ball” by bending his

reports to boost UBS’ sales and bottom line. Murray

refused and blew the whistle on these potential SEC

violations to UBS’ senior leadership in January 2012.

UBS terminated him one month later.

3

Two years later, after presenting his claim to the

Department of Labor, which took no action, petitioner

filed a civil whistleblower complaint against UBS in

the District Court for the Southern District of New

York under SOX. As trials in cases like this often

proceed, petitioner presented evidence of his efforts to

assure that he followed the law in his work and of the

rejection of his complaints by respondent’s officers. In

its defense, respondent offered a number of reasons

why his termination was due to financial downturns

in its business and was unrelated to petitioner’s

whistleblowing. It was, in other words, a classic case

for the jury.

Fortunately, Congress had expressly provided for

this situation in the burden of proof standard that it

incorporated in SOX, which required petitioner to

prove that his whistleblowing disclosures were a

“contributing factor” in UBS’ decision to fire him just

a month later, i.e., that his whistleblowing tended to

affect in any way the decision to take an adverse

employment action against him. Once petitioner

made that showing by a preponderance of the

evidence, those same provisions required respondent

to “demonstrate by clear-and-convincing evidence

that [it] would have taken the same unfavorable

personnel action in the absence of that behavior,” i.e.,

that it had a legitimate rather than an impermissible

motive for its actions. 18 U.S.C. § 1514A(b)(2)(C),

incorporating 49 U.S.C. § 42121(b) (emphasis added).

After a two-week trial, the jury was properly

instructed under the law, it believed petitioner, and it

awarded him damages of $903,300.

The court of appeals for the Second Circuit

overturned the verdict. It held that the district court

4

should have instructed the jury that SOX

whistleblowers have the burden of proving that their

employer acted with a specific state of mind, a

“retaliatory intent—i.e., an intent to ‘discriminate

against an employee ... because of’ lawful

whistleblowing activity.’” Pet. App. 11a. 2

As respondent stated in its opposition to the

petition, the only question presented is whether

“liability under SOX requires [the plaintiff to produce]

proof of retaliatory intent.” Opp. at 1. It does not.

Those words do not appear in the text of SOX, nor in

the burden of proof provisions that Congress

incorporated into SOX. The Second Circuit overcame

this obstacle by completely ignoring the specific

section in SOX labeled “Burdens of proof” and instead

imposing a new burden on SOX whistleblowers that

is fundamentally different from the burden that

Congress expressly chose to include in SOX. Instead

of making it easier for whistleblowers to defend

themselves, by requiring the employer to prove nonretaliatory motives with clear and convincing

evidence, as Congress provided, the Second Circuit

shifted the burden to the whistleblower, who first

must prove a retaliatory motive. That was error

because the Second Circuit lacked the authority to

add the retaliatory intent language and thereby

reverse the burden of proof that Congress had chosen.

Moreover, in imposing a heavy burden on

whistleblowers like petitioner, the court below failed

to recognize that the whistleblower protections in

SOX were included not just to protect employees who

stood up for the law, but to protect investors and other

As a result, the court of appeals did not reach the issues

presented by petitioner’s cross appeal.

2

5

employees whose lives and finances were devasted

because employees like petitioner were reluctant to

call attention to unlawful activities for fear of losing

their jobs. It was to guard against future disasters

like the collapse of Enron Corporation that Congress

included only a modest burden on employees—to

show that their disclosures were “a contributing

factor”—and why employers like respondent were

required to show by “clear and convincing evidence”

that they “would have taken the same unfavorable

personnel action” even if the employee had not blown

the whistle.

Equally important, the Second Circuit overlooked

the extensive history of federal whistleblower

statutes in general and of SOX in particular. Largely

based on the urging of amicus Senator Grassley,

Congress recognized that the burden of proof that this

Court had placed on employees under other antiretaliation laws was too great to assure credible

protection of whistleblowers and therefore chose to

employ a “contributing factor” causation standard

that does not require proof of retaliatory intent to

satisfy the employee’s burden of proof.

The history of the whistleblower provision in SOX

confirms that the Second Circuit erroneously

concluded that “retaliatory intent” had to be proven

by employees to establish a prima facie case. The

Senate bill, which became the law, was a compromise

that was achieved by specifically incorporating the

burden of proof from a whistleblower protection law

applicable to the airline industry. That provision was

modeled on whistleblower protection laws governing

federal employees that did not impose the retaliatory

intent standard which the Second Circuit appended

6

to SOX. This history is not offered to contradict the

text, but to reinforce the conclusion that the district

court properly instructed the jury and that the court

of appeals erred in overturning the verdict in favor of

petitioner.

ARGUMENT

THE DECISION BELOW SHOULD BE

REVERSED, AND THE CASE REMANDED

FOR FURTHER PROCEEDINGS ON THE

CROSS-APPEAL BY PETITIONER.

A. The Plain Meaning of the Applicable

Statute Does Not Require an Employee to

Prove Retaliatory Intent.

Congress enacted SOX “after a series of

celebrated accounting debacles.” Free Enterprise

Fund v. Public Co. Accounting Oversight Bd., 561 U.S.

477, 484 (2010). Those “debacles,” which were

epitomized by the decade-long shareholder frauds of

a FORTUNE “Top 10” company, the Enron Corporation,

caused significant “spillover economic effects”

throughout

the

Nation,

including

massive

bankruptcies, widespread job losses, and diminished

confidence in the securities markets.

As this Court explained in Lawson v. FMR LLC,

571 U.S. 429, 435 n.1 (2014)—quoting S. Rep. 107-146

(2002), which the Court described as the “‘official

legislative history’ of Sarbanes–Oxley”—Congress

learned that “Enron had succeeded in perpetuating

its massive shareholder fraud in large part due to a

‘corporate code of silence,’” an informal but

stringently enforced program that effectively

“discourage[d] employees from reporting fraudulent

7

behavior ….” Id. at 447 (quoting S. Rep. 107-146, pp.

10, 2).

In 2002, while debating whether to enact SOX,

Congress found that, although then-existing statutes

protected many federal civil service and privatesector whistleblowers from employer retribution for

protected disclosures, “there [was] no similar

protection for employees of publicly traded

companies.” 148 Cong. Rec. S1787 (daily ed. Mar. 12,

2002) (statement of Sen. Leahy).

Congress “identified the lack of whistleblower

protection as ‘a significant deficiency’” in deterring

misconduct, alerting Congress about hidden

chicanery in the securities industry, and protecting

the public. Lawson, 571 U.S. at 435, n.1. To alleviate

this “deficiency,” Congress “installed whistleblower

protection in [SOX] as one means to ward off another

Enron debacle.” Id. at 447 (citing S. Rep. 107-146 at

2–11). Accordingly, under 18 U.S.C. § 1514A(a),

“publicly traded companies” may not “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,” including providing

evidence of fraud to their supervisors or others.

Congress

chose

to

protect

corporate

whistleblowers by creating a private right of action for

them in SOX, § 1514A(b)(2)(B). Although Congress

determined that those whistleblowers needed

protection through a private right of action, Congress

realized that it did not need to reinvent the wheel and

to create a wholly new scheme of protection,

formulate new burdens of proof, or articulate new

standards for meeting those burdens. In fact, as

8

explained below, there were several other models for

whistleblower protection, and Congress chose the one

used to protect airline industry employees from

adverse personnel actions for blowing the whistle

found in Section 519(b) of the Wendell H. Ford

Aviation Investment and Reform Act for the 21st

Century, codified as amended at 49 U.S.C. § 42121(b),

Pub. L. No. 106-181, 114 Stat 61 (2020), often referred

to as AIR-21.

Under that provision, an airline industry

employee must first file a claim with the Secretary of

Labor, which has the authority to adjudicate the

claim. The agency is directed to proceed with its

investigation only if the employee has presented

evidence that “makes a prima facie showing that any

behavior described in paragraphs (1) through (4) of

subsection (a) was a contributing factor in the

unfavorable personnel action alleged in the

complaint.” § 42121(b)(2)(B)(i). Subpart (ii), “Showing

by Employer,” instructs the Secretary to dismiss the

complaint “if the employer demonstrates, by clear and

convincing evidence, that the employer would have

taken the same unfavorable personnel action in the

absence of that behavior.” Id. Airline employees have

no right to file an AIR-21 complaint in court against

their employer; their only remedy is with the

Secretary of Labor followed by an appeal to the court

of appeals where the violation occurred. Id. at (b)(4).

S. 2010, which became the whistleblower

protection section of SOX, originally provided for a

direct action by a covered employee in federal district

court, but that option was removed during the

markup of the bill in the Senate Judiciary Committee.

In its place Senator Grassley offered an amendment

9

which provided for “an administrative remedy and

resort to federal court if the administrative decision is

not made within six months” and, among other

changes, also removed enhanced penalties in

whistleblower matters. “The amendment was adopted

by unanimous consent.” S. Rep. 107-146, supra, at 23.

Under that provision, which became section

1514A(b)(1)(A), the employee must first file a

complaint with the Secretary of Labor, and if the

Secretary does not act within six months, the

employee may file suit in federal district court. §

1514A(b)(1)(B). Under subsection (b)(2)(C), which

governs cases like this one that go to district court,

Congress stated that “Burdens of Proof … shall be

governed by the legal burdens of proof set forth

in section 42121(b) of title 49, United States Code,”

i.e., those found in the recently enacted AIR-21.

But the Second Circuit nonetheless rejected the

district court’s instructions, which had used the very

terms of the statute. Instead, it decreed that the jury

had to be directed to find against petitioner unless he

had produced evidence of respondent’s “retaliatory

intent,” a phrase not found in section 1514A or AIR21. 3 The appeals court focused on the word

“discriminate” which is the last term in a longer string

of distinct prohibited actions – the employer may not

3 The phrase “intend to retaliate” is contained in another part of

SOX, the criminal prohibition in 18 U.S.C. § 1513(e), which

criminalizes retaliation for reporting the commission or possible

commission of fraud or any Federal offense. Adding an element

of criminal intent to this civil damages provision is a further

reason why the Second Circuit erred here. See also

Whistleblower Protection Act of 2012, 5 U.S.C. § 2302(f),

requiring proof of “reprisal” in order for the employee to prevail.

10

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

any other manner discriminate against an employee

in the terms and conditions of employment.” §

1514A(a). It then concluded that discriminate in this

context must mean retaliation, and since all

retaliation is intentional, petitioner was required to

prove the employer’s retaliatory intent. Pet App. 14a15a. 4

How, one might ask, did the Second Circuit

respond to subparagraph (b)(2)(C) on burdens of

proof: it simply never mentioned it, let alone explain

what other function it might serve beyond that urged

by petitioner and amici. Nor did the court of appeals

mention this Court’s decision in Lawson, the Senate

Report on the whistleblower provisions in SOX cited

in Lawson, or AIR-21. To be sure, the words setting

forth the actual burden on an employee are not in

section 1514A, but the term “Burdens of proof” is, and

it directs the reader to the precise place in AIR-21

where the “contributing factor” requirement is found.

Perhaps a reader might conclude that “a contributing

factor” could include retaliatory intent, but it would

be an enormous stretch to mean that it must always

include retaliatory intent.

If there were any doubt as to the meaning of a

contributing factor, it should be dispelled by the

burden that AIR-21 (and hence SOX) places on the

employer, to prove that it would have, in this case,

4 As petitioner pointed out in his reply brief (at 8 & n. 3), some

dictionary definitions of discriminate have softer meanings than

retaliate, such as to distinguish or provide different treatment,

which would produce a different conclusion than that urged by

respondent, even without the burdens of proof incorporated from

AIR-21.

11

terminated petitioner even if he had not blown the

whistle. § 42121(b)(2)(B)(ii). Even more significant is

the further requirement on the employer that it must

meet its burden by “clear and convincing evidence,”

not just the normal preponderance standard that the

employee must satisfy. 5

In Colorado v. New Mexico, 467 U.S. 310, 316

(1984), this Court discussed the clear and convincing

evidence standard and why it is used, in that case in

the context of what proof would be needed to justify

Colorado’s diversion of water from New Mexico:

a diversion of interstate water should be allowed

only if Colorado could place in the ultimate

factfinder an abiding conviction that the truth of

its factual contentions are “highly probable.”

See C. McCormick, Law of Evidence § 320, p. 679

(1954). This would be true, of course, only if the

material it offered instantly tilted the evidentiary

scales in the affirmative when weighed against

the evidence New Mexico offered in opposition.

See generally McBaine, Burden of Proof: Degrees

of Belief, 32 Calif. L. Rev. 242, 251-254 (1944).

In the whistleblower context, the court in Whitmore v.

Dep’t of Labor, 680 F.3d 1353,1367 (Fed. Cir. 2012),

5 In construing SOX’s provisions (and the AIR-21 provisions SOX

expressly incorporate), it is crucial to examine how those

provisions fit within “the structure and internal logic of the

statutory scheme.” Lockhart v. United States, 577 U.S. 347, 351

(2016). See McCullen v. Coakley, 573 U.S. 464, 503 (2014)(Scalia,

Kennedy, & Thomas, JJ., concurring). As Justice Scalia

explained: “[t]he text must be construed as a whole” and “in view

of its structure,” with “context [being] the primary determinant

of meaning.” Antonin Scalia and Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts 167 (2012).

12

explained why the employer should have this heavy

burden, quoting from the WPA’s legislative history:

this heightened burden of proof required of the

agency also recognizes that when it comes to

proving the basis for an agency’s decision, the

agency controls most of the cards—the drafting of

the documents supporting the decision, the

testimony of witnesses who participated in the

decision, and the records that could document

whether similar personnel actions have been

taken in other cases. In these circumstances, it is

entirely appropriate that the agency bear a heavy

burden to justify its actions.

In other words, imposing the onerous burden of

proving retaliatory intent on an employee surely

makes no sense in the same statute that requires the

employer to justify its adverse personnel action by

clear and convincing evidence. That is, unless the

reader simply disregards the burdens of proof spelled

out in SOX, as the Second Circuit did here.

The Labor Department, which has jurisdiction

over complaints under AIR-21 and SOX, has issued

regulations that are firmly in petitioner’s camp. See

29 C.F.R. § 1980.100-115. The regulations describe

how the complaining party can meet the contributing

factor burden before the Department may investigate

a SOX retaliation claim. Section 1980.104(e)(3) gives

as an example a situation in which “the complaint

shows that the adverse personnel action took place

within a temporal proximity after the protected

activity, or at the first opportunity available to

respondent, giving rise to the inference that it was a

contributing factor in the adverse action,” which is a

far cry from requiring retaliatory intent. Section

13

1980.109 applies the same burden of proof to final

decisions as it does to investigations, and section

1980.114 closes the loop and concludes that these

burdens must be followed in district court cases. 6

Finally, the reasons why Congress in general and

why amicus Senator Grassley in particular

considered the need to protect whistleblowers to be so

important, underscores why the burden assigned to

employees like petitioner was not the one that the

Second Circuit imposed. As noted above, what made

the Enron scandal so painful was that it also brought

down tens of thousands of innocent investors,

including public and private pension funds, as well as

unsuspecting employees.

To avoid another Enron, Congress recognized that

employees are in the best position to sound the alarm

about unlawful accounting and other practices. In its

comments to the Securities & Exchange Commission

regarding the agency’s proposed whistleblower rules,

the Chamber of Commerce agreed that “internal

reporting mechanisms are cornerstones of effective

compliance processes.” 7 But Congress also concluded

6 The Labor Department’s Administrative Review Board (“ARB”)

which handles adjudications under the whistleblower statutes,

agrees that “proof of actual discriminatory or retaliatory intent

[i]s not required.” Petitt v. Delta Airlines, Inc., ARB No. 20210014, 2022 WL 1091413, *11 (March 29, 2022). This Court

agreed in Lawson, supra, at 439 n. 6, that the Labor Department,

not the SEC, is the lead agency on these provisions. Moreover,

most circuits defer to the ARB because “Congress has explicitly

delegated to the Secretary of Labor authority to enforce the

whistleblower provisions” of AIR-21 statutes. TransAm

Trucking, Inc. v. Admin. Rev. Bd., 833 F.3d 1206, 1210 (10th Cir.

2016).

7 http://www.sec.gov/comments/s7-33-10/s73310-110.pdf.

14

that, without effective whistleblower protections like

those in AIR-21 and SOX, employees would fear for

their jobs even if they blew the whistle internally.

Moreover, as this case shows, employers can

always find some other reason, with at least surface

plausibility, to justify terminating an employee, with

the employee having little access to the evidence to

overcome that defense. Yet by setting the barrier low

for employees and high for the employer, employees

are more likely to take the risk of blowing the whistle,

especially if they have a reasonable chance of

recovering their losses if their employer retaliates. On

the other hand, by placing the nearly insurmountable

“retaliatory intent” burden on employees, the Second

Circuit has seriously undermined Congress’ goal in

including the whistleblower provisions in SOX at a

time when fraud is no less prevalent or pernicious

than it was in 2002.

B. Other Federal Whistleblower Statutes

and the Specific History of the

Whistleblower Provisions of SOX

Confirm that the Second Circuit Erred.

As the prior section demonstrates, there is no

basis in the text of SOX for the Second Circuit’s

conclusion that petitioner was required to show that

respondent had a retaliatory intent to discharge him.

We now show that other whistleblower statutes,

including how they have been read by the courts, as

well as the specific history of section 1514A, confirm

that the Second Circuit should be reversed.

We begin with other anti-discrimination statutes,

not involving whistleblowers, and how this Court

imposed burdens in those cases when plaintiffs, like

15

petitioner here, claimed that they had been

discriminated against, in those cases, by preferring a

person who is not in a protected class over them.

Texas Department of Community Affairs v. Burdine,

450 U.S. 248 (1981), is a good illustration. Plaintiff, a

female employee, was denied a promotion given to a

male, and she sued for sex discrimination. The issue

before this Court was whether the plaintiff had met

her burden to show that her employer had engaged in

unlawful conduct.

On pages 254-56 of his opinion for the Court,

Justice Powell explained the various burdens on the

parties in detail, relying on the test in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), a

decision generally considered favorable to plaintiffs

who must establish a prima facie violation of the law.

The Burdine Court then concluded (at 259-60) as

follows:

In summary, the Court of Appeals erred by

requiring the defendant to prove by a

preponderance of the evidence the existence of

nondiscriminatory reasons for terminating the

respondent and that the person retained in her

stead had superior objective qualifications for the

position. When the plaintiff has proved a prima

facie case of discrimination, the defendant bears

only the burden of explaining clearly the

nondiscriminatory reasons for its actions.

Whether that is a reasonable allocation of the

burden of proof in a case in which the harm is limited

to one employee is not the question. What is relevant

is that the harms to society overall in a case like

Burdine are orders of magnitude less than they are in

a whistleblower case like this. Thus, a very different

16

balance is required, in situations like Enron, or where

the wrongful conduct involves conduct that places

members of the public at personal risk of serious

physical harm or death.

It was the recognition that employees were in the

best position to prevent widespread harm, if they

were protected in doing so, that led amicus Senator

Grassley to sponsor the Whistleblower Protection Act

of 1989 (“WPA”), Pub. L. No. 101-12, 103 Stat. 16, 5

U.S.C. § 2308(b)(8). Before the WPA was enacted, the

Civil Service Reform Act of 1978 (“CSRA”), Pub. L.

No. 95-454, 92 Stat. 1111, governed whistleblowing

claims by federal civil-service workers. The CSRA

“defined a prohibited personnel practice as ‘tak[ing]

or fail[ing] to take a personnel action ... as a reprisal

for’ a protected disclosure of information.” Marano v.

Dept. of Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993). By

the time the CSRA was a decade old, Congress had

concluded that the CSRA’s “reprisal for” test imposed

an “‘excessively heavy burden … on the employee”’

and, “in effect, had gutted the CSRA's protection of

whistleblowers.” Id. (citing the “WPA’s Explanatory

Statement,” 135 Cong. Rec. 5033 (1989)).

This is how the Federal Circuit in Marano

described Congress’s response:

Congress amended the CSRA’s statutory scheme

with the WPA, thereby substantially reducing a

whistleblower's burden to establish his case, and

“send[ing] a strong, clear signal to whistleblowers

that Congress intends that they be protected from

any retaliation related to their whistleblowing.”

135 Cong. Rec. 5033 (1989) (Explanatory

Statement on S. 20).

17

Id. The Court then noted that employees would no

longer be “required to prove that the whistleblowing

disclosure was a ‘significant’ or ‘motivating’ factor,”

but that, under 5 U.S.C. § 1221(e)(1), the evidence

must only show that the “protected disclosure played

a role in, or was ‘a contributing factor’ to, the

personnel action taken.” Id. The Federal Circuit

further explained that a contributing factor means

“any factor which, alone or in connection with other

factors, tends to affect in any way the outcome of the

decision. This test is specifically intended to overrule

existing case law, which requires a whistleblower to

prove that his protected conduct was a ‘significant,’

‘motivating,’ ‘substantial,’ or ‘predominant’ factor in a

personnel action in order to overturn that action.” Id.

(emphasis in original).

Most relevant for this case, and to remove any

doubt as to the meaning of a contributing factor, the

Federal Circuit also stated that, “though evidence of

a retaliatory motive would still suffice to establish a

violation of his rights under the WPA, a

whistleblower need not demonstrate the existence of

a retaliatory motive on the part of the employee

taking the alleged prohibited personnel action in

order to establish that his disclosure was a

contributing factor to the personnel action.” Id. at

1141 (citations omitted, emphasis in original). 8

8 That understanding of “contributing factor” is supported by the

history of the WPA. On the Senate floor, Senator Grassley

defined the standard, reaffirmed verbatim by other original

sponsors and the Joint Explanatory Report, as “any factor, which

alone or in connection with other factors, tends to affect in any

way the outcome . . . .” 135 Cong. Rec. 4509 (1989). See id. at

4518 (statement of Sen. Grassley); id. at 4522 (statement of Sen.

18

To support its reading of the WPA, Marano

observed that the “policy goal behind the WPA was to

encourage government personnel to blow the whistle

on wasteful, corrupt or illegal government practices

without fearing retaliatory action by their supervisors

or those harmed by the disclosures,” which would be

“guaranteed by the substantially reduced burden that

must be carried by the whistleblower to earn the

WPA’s protection from adverse action.” Id. at 1142

(citation omitted). Based on this analysis, the court

concluded that the employee there had satisfied the

contributing factor requirement and remanded the

case to the Merit Systems Protection Board to allow

his employer to meet “the burden of proving by clear

and convincing evidence that the personnel action

would have been taken in the absence of the protected

disclosure,” id. at 1143, which is the same burden

imposed by SOX on respondent in this case. 9

Pryor); id. at 5033 (explanatory statement of Senate Bill 20); id.

at 4522 (statement of Rep. Schroeder). Furthermore, a letter

from Attorney General Thornburgh is consistent with that

approach: “A ‘contributing factor’ need not be ‘substantial.’ The

individual's burden is to prove that the whistleblowing

contributed in some way to the agency's decision to take the

personnel action.” 135 Cong. Rec. 5033 (1989).

9 Other circuits have disagreed with Marano, at least as applied

to other federal statutes. See Neylon v. BNSF Railway, 968 F.3d

724, 728-29 (8th Cir. 2020). The Third Circuit agrees with

Marano: Araujo v. New Jersey Transit Rail Ops, Inc., 708 F.3d

152, 158 (3d Cir. 2013). For the reasons set forth above and in

petitioner’s brief, amici support the conclusions in Marano

regarding the WPA and SOX. The Second Circuit took no

position on Marano; it simply did not mention it, just as it did

not mention AIR-21.

19

Subsequent to the passage of the WPA, Congress

enacted sixteen whistleblower laws applicable to

specific industries. Of these, the most relevant is the

one in AIR-21, found in 49 U.S.C. § 42121(b). There is

not a word of statutory language or legislative history

in any of those sixteen statutes that changes or

modifies the WPA definition of “contributing factor.”

In SOX Congress specifically provided in 18

U.S.C. § 1514A(b)(2)(C) that district court actions

brought under SOX “shall be governed by the legal

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

49, United States Code.” That incorporation expressly

brought in as the “Burdens of proof” the “contributing

factor” requirement for employees and, for the

employer’s defense, that it must introduce “clear and

convincing” evidence that it would have taken the

adverse personnel action in the absence of

whistleblowing by the employee. Although those

words do not appear in the text of SOX, they were

incorporated in SOX by this provision in section

1514A(b)(2)(C): “An action [in the district court]

brought under paragraph (1)(B) shall be governed by

the legal burdens of proof set forth in section 42121(b)

of title 49, United States Code.” In other words, for

Members of Congress to determine exactly what those

burdens are, they would have had to go to the cited

provision or some other source. And in this case, that

source would be the Senate Report relied on by the

majority in Lawson, supra.

That Report is significant for several reasons.

First, the discussion of the whistleblower protections,

which were in section 6, is entirely consistent with the

position urged by petitioner and amici. That is true

for what the majority wrote (S. Rep. 107-146 at 18-20)

20

and what was in the additional views of the minority

(id. at 26). None of the discussion includes the actual

terms used in AIR-21, but the Report confirms (id. at

19-20 & 26) that the AIR-21 standards will apply

when employees file whistleblower complaints.

As the Report sets forth at 23, section 6 was the

subject of a unanimous amendment offered by amicus

Senator Grassley and co-sponsored by Senator Leahy.

It replaced the option for an immediate suit in federal

court with a requirement that the employee first file

with the Secretary of Labor, with resort to federal

court if an administrative decision is not made within

six months. The Additional Views (id. at 30) expand

on the reasons for the amendment and what it did:

The amendment offered by Senators Grassley and

Leahy revises the original bill to make these

protections consistent with the Aviation Safety

Protection Act of 2000 in which we provided

whistleblower protections to another class of nongovernment employees. Because we had already

extended whistleblower protections to non civil

service employees, we thought it best to track

those protections as closely as possible.

That tracking was not precise for all procedures

because SOX allows employees to bring their own

actions if the Secretary does not respond within 180

days, § 1514A(1)(B), but AIR-21 has no such remedy.

Most significantly, there is nothing in the history

of section 1514A that supports a requirement that an

employee must show retaliatory intent to prevail. The

word “retaliation” appears only in the title, “Civil

action to protect against retaliation in fraud cases,”

and neither “retaliate” nor “retaliatory” appears at all

in that section. The Senate Report includes a single

21

use of retaliatory in the Additional Views (S. Rep.

107-146 at 30) stating that the bill protects “corporate

whistleblowers, who should be shielded from illegal

retaliatory action.” The Report does use the term

“retaliation” as a general description of what is

prohibited, but it never uses “retaliatory intent” or

any other term that supports requiring that

employees would have to show their whistleblowing

action was more than “a contributing factor” to their

adverse personnel action.

In short, the plain meaning and history of the

whistleblower provisions of SOX confirms what the

combination of the texts of AIR-21 and section 1514A

establish: that employees such as petitioner must

only prove that their whistleblowing activities were a

contributing factor to their termination or other

adverse action, a standard that imposes no obligation

to show that their employer acted with retaliatory

intent.

22

CONCLUSION

For the foregoing reasons and those set forth in

the briefs of petitioner, the judgment below should be

reversed, and the case remanded to the Second

Circuit for consideration of petitioner’s cross-appeal.

Respectfully Submitted,

Jason Zuckerman

ZUCKERMAN LAW

1629 K Street, NW

Suite 300

Washington, DC 20006

Alan B. Morrison

Counsel of Record

2000 H Street, NW

Washington, DC 20052

202 994 7120

abmorrison@law.gwu.edu

Thomas M. Devine

GOVERNMENT ACCOUNTABILITY PROJECT

1612 K Street, NW

Suite 1100

Washington, DC 20006

June 30, 2023