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

Supreme Court briefJul 5, 2023

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No. 22-660

In the Supreme Court of the United States

TREVOR MURRAY, PETITIONER

UBS SECURITIES, LLC, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

SEEMA NANDA

Solicitor of Labor

JENNIFER S. BRAND

Associate Solicitor

MEGAN E. GUENTHER

Counsel for Whistleblower

Programs

JOSEPH E. ABBOUD

JESSE GRAUMAN

ANNE W. K ING

Attorneys

Department of Labor

Washington, D.C. 20210

MEGAN BARBERO

General Counsel

MICHAEL A. CONLEY

Solicitor

THOMAS J. KARR

Assistant General Counsel

Securities and Exchange

Commission

Washington, D.C. 20549

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

EDWIN S. KNEEDLER

Deputy Solicitor General

ANTHONY A. YANG

Assistant to the Solicitor

General

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether a whistleblower must establish that his employer acted with “retaliatory intent” in order to carry

his burden of proof under the burden-shifting framework in 18 U.S.C. 1514A(b).

(I)

TABLE OF CONTENTS

Page

Interest of the United States....................................................... 1

Statement ...................................................................................... 1

Summary of argument ............................................................... 13

Argument:

Section 1514A does not require a whistleblower to

prove that his employer acted with “retaliatory intent” ... 16

A. Section 1514A’s “contributing factor” test does

not require proof of “retaliatory intent” .................. 17

1. “Contributing factor” is a term of art that has

long been interpreted not to require a

showing of retaliatory intent .............................. 17

2. The term “contributing factor” is most

naturally read not to require a showing of

retaliatory intent ................................................. 20

3. The drafting history surrounding Congress’s

enactment of the “contributing factor” test

confirms that it does not require a showing of

retaliatory intent ................................................. 22

B. Section 1514A(a) does not alter the burdenshifting framework for adjudicating

whistleblower claims under the “contributing

factor” test ................................................................. 23

1. Section 1514A(a) does not require proof of

retaliatory intent ................................................. 24

2. Section 1514A’s burden-shifting framework in

any event would impose a legal presumption

of retaliatory intent when the “contributing

factor” test is met ................................................ 28

C. The Secretary’s interpretation of Section 1514A

is entitled to deference .............................................. 29

Conclusion ................................................................................... 35

Appendix — Statutory provisions........................................... 1a

(III)

TABLE OF AUTHORITIES

Cases:

Page

Babb v. Wilkie, 140 S. Ct. 1168 (2020) ................................. 25

Beatty v. Celadon Trucking Servs.,

Nos. 15‐85, 15‐86, 2017 WL 6572143

(ARB Dec. 8, 2017).............................................................. 33

Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020) .......... 25, 26

Brough v. BNSF Ry., No. 2016‐89,

2019 WL 3293916 (ARB June 12, 2019), aff ’d,

Nos. 19‐71983, 20‐70655, 2021 WL 5905721

(9th Cir. Dec. 14, 2021) ....................................................... 33

Burlington N. & Santa Fe Ry. v. White,

548 U.S. 53 (2006) ............................................................... 25

Caddell v. DOJ, 61 M.S.P.R. 670 (1994) .............................. 20

Carr v. SSA, 185 F.3d 1318 (Fed. Cir. 1999) ....................... 20

Chevron U.S.A. Inc. v. NRDC, Inc.,

467 U.S. 837 (1984).............................................................. 29

Digital Realty Trust, Inc. v. Somers,

138 S. Ct. 767 (2018) ............................................................. 8

Frazier, In re, 1 M.S.P.B. 159 (1979),

aff ’d, 672 F.2d 150 (D.C. Cir. 1982) ............................... 4, 22

George v. McDonough, 142 S. Ct. 1953 (2022) ........ 17, 18, 20

Gerlach v. FTC, 8 M.S.P.B. 599 (1981) .................................. 4

Halliburton, Inc. v. ARB,

771 F.3d 254 (5th Cir. 2014) ............................................... 30

International Union v. Johnson Controls, Inc.,

499 U.S. 187 (1991).............................................................. 25

Jackson v. Birmingham Bd. of Educ.,

544 U.S. 167 (2005).............................................................. 25

Kewley v. HHS, 153 F.3d 1357 (Fed. Cir. 1998) ................. 20

Cases—Continued:

Page

Klopfenstein v. PCC Flow Techs. Holdings,

Inc., No. 04-149, 2006 WL 3246904

(ARB May 31, 2006)...................................................... 30, 31

Kuduk v. BNSF Ry., 768 F.3d 786 (8th Cir. 2014) ............ 33

Lawson v. FMR LLC, 571 U.S. 429 (2014) ......7, 8, 27, 31, 32

Marano v. Department of Justice,

2 F.3d 1137 (Fed. Cir. 1993)......................6, 7, 19, 20, 22, 30

Menendez v. Halliburton, Inc.,

Nos. 09-2, 09-3, 2011 WL 4915750

(ARB Sept. 13, 2011) .......................................................... 30

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

429 U.S. 274 (1977)............................................................ 2, 3

Rathburn v. Belt Ry.,

No. 16‐36, 2017 WL 6572154 (ARB Dec. 8, 2017) ............ 33

Riley v. Dakota, Minn. & E. R.R.,

Nos. 16‐10, 16‐52, 2018 WL 6978216

(ARB July 6, 2018), rev’d, 948 F.3d 940

(8th Cir. 2020)...................................................................... 33

SEC v. Zandford, 535 U.S. 813 (2002) ................................. 31

Spadaro v. U.S. Dep’t of Interior,

18 M.S.P.R. 462 (1983) ......................................................... 4

Staub v. Proctor Hosp., 562 U.S. 411 (2011) ................. 27, 28

Stokeling v. United States, 139 S. Ct. 544 (2019) ............... 17

Taggart v. Lorenzen, 139 S. Ct. 1795 (2019) ....................... 17

Thorstenson v. BNSF Ry.,

Nos. 2018‐59, 2018‐60, 2019 WL 7042958

(ARB Nov. 25, 2019) ..................................................... 33, 34

United States v. Castleman, 572 U.S. 157 (2014) ............... 18

United States v. Mead Corp., 533 U.S. 218 (2001) ............. 31

Cases—Continued:

Page

Warren v. Department of the Army,

804 F.2d 654 (Fed. Cir. 1986) ............................................... 4

Yowell v. Fort Worth & W. R.R., No. 2019‐39,

2020 WL 3971213 (ARB Feb. 5, 2020), aff ’d,

993 F.3d 418 (5th Cir. 2021) ............................................... 34

Constitution, statutes, and regulations:

U.S. Const. Amend. I .............................................................. 2

Anti-Money Laundering Act of 2020,

Pub. L. No. 116-283, Div. F, § 6314,

134 Stat. 4601-4602 (31 U.S.C. 5323(g)(3)) ......................... 8

Civil Rights Act of 1964,

Pub. L. No. 88-352, Tit. VII, 78 Stat. 253

(42 U.S.C. 2000e et seq.) ..................................................... 25

Civil Service Reform Act of 1978,

5 U.S.C. 1101 et seq. .............................................................. 3

5 U.S.C. 2302(a)(2)..................................................... 26, 4a

5 U.S.C. 2302(b)(8) (1988) ................................................. 3

5 U.S.C. 2302(b)(8) ................................................ 6, 26, 6a

5 U.S.C. 2302(b)(9) (1988) ................................................. 4

5 U.S.C. 2302(f )(2) ..................................................... 22, 8a

5 U.S.C. 7703(b)(1)(2006) ................................................ 19

Consumer Product Safety Improvement

Act of 2008, Pub. L. No. 110-314, § 219(a),

122 Stat. 3063-3065 (15 U.S.C. 2087(b)) .............................. 7

Criminal Antitrust Anti-Retaliation Act of 2019,

Pub. L. No. 116-257, § 2, 134 Stat. 1148-1149

(15 U.S.C. 7a-3(b)) ................................................................ 8

Energy Policy Act of 1992, Pub. L. No. 102-486,

§ 2902(d), 106 Stat. 3123-3124.............................................. 7

Energy Reorganization Act of 1974,

42 U.S.C. 5801 et seq. ............................................................ 7

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

VII

Statutes and regulations—Continued:

Page

FDA Food Safety Modernization Act,

Pub. L. No. 111-353, § 402, 124 Stat. 3968-3971 ................ 7

Federal Food, Drug and Cosmetic Act,

21 U.S.C. 301 et seq. .............................................................. 7

21 U.S.C. 399d(b) ............................................................... 7

Implementing Recommendations of the 9/11

Commission Act of 2007, Pub. L. No. 110-53,

121 Stat. 266:

§ 1521, 121 Stat. 446

(amending 49 U.S.C. 20109(c)(2)

(Supp. I 2007)) .............................................................. 8

§ 1536, 121 Stat. 465-466 (49 U.S.C. 31105(b)) ............... 8

49 U.S.C. 20109(d) ........................................................... 33

49 U.S.C. 20109(d)(2) ........................................................ 8

49 U.S.C. 31105(b) ........................................................... 33

Motor Vehicle and Highway Safety

Improvement Act of 2012, Pub. L. No. 112-141,

Div. C, Tit. I, § 31307(a), 126 Stat. 766-769

(49 U.S.C. 30171(b)) .............................................................. 7

Sarbanes-Oxley Act of 2002,

Pub. L. No. 107-204, § 806(a), 116 Stat. 802 ....................... 1

18 U.S.C. 1514A ....... 1, 3, 8, 10-13, 15-20, 22-24, 26-34, 9a

18 U.S.C. 1514A(a) ..................... 2, 8, 15, 23-26, 28, 29, 9a

18 U.S.C. 1514A(b) ............................. 1, 15, 24, 28, 31, 10a

18 U.S.C. 1514A(b)(1)(A) .......................................... 8, 11a

18 U.S.C. 1514A(b)(1)(B) .................................. 10, 32, 11a

18 U.S.C. 1514A(b)(2)(A) ..................... 2, 8, 13, 16, 32, 11a

18 U.S.C. 1514A(b)(2)(C) ................. 10, 13, 16, 24, 32, 11a

18 U.S.C. 1514A(b)(2)(D) .......................................... 9, 11a

VIII

Statutes and regulations—Continued:

Page

Wendell H. Ford Aviation Investment

and Reform Act for the 21st Century,

Pub. L. No. 106-181, 114 Stat. 61:

§ 307(a), 114 Stat. 124 (49 U.S.C. 40122(g)(2)(A)) .. 18, 19

§ 519(a), 114 Stat. 145 (49 U.S.C. 42121 (2000)) ............. 2

§ 519(a), 114 Stat. 146-147

(49 U.S.C. 42121(b)(2)(B)) ......................................... 19

49 U.S.C. 42121 ............................. 8, 13, 18-20, 23, 27, 12a

49 U.S.C. 42121(b) ...................... 2, 3, 9, 10, 16, 18, 22, 13a

49 U.S.C. 42121(b)(1)-(4)......................................... 10, 13a

49 U.S.C. 42121(b)(2)(A) ........................................... 9, 14a

49 U.S.C. 42121(b)(2)(B) .......................... 7, 13, 17-19, 15a

49 U.S.C. 42121(b)(2)(B)(i) ....................................... 9, 15a

49 U.S.C. 42121(b)(2)(B)(ii) ...................................... 9, 15a

49 U.S.C.42121(b)(2)(B)(iii) ........................2, 9, 13, 14, 16,

17, 20-22, 28, 15a

49 U.S.C. 42121(b)(2)(B)(iv) ........................... 2, 9, 29, 15a

49 U.S.C. 42121(b)(3)(A) ..................................... 9, 10, 16a

49 U.S.C. 42121(b)(4) .............................................. 10, 17a

Whistleblower Protection Act of 1989,

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

§ 3(a)(13), 103 Stat. 30

(5 U.S.C. 1221(e)(1) (Supp. I 1989)) ....................... 2, 6

§ 3(a)(13), 103 Stat. 30

(5 U.S.C. 1221(e)(2) (Supp. I 1989)) ....................... 2, 6

5 U.S.C. 1221 .............................................................. 18, 1a

5 U.S.C. 1221(e) ............................................ 4-6, 18, 19, 2a

5 U.S.C. 1221(e)(1)................................................. 6, 23, 2a

5 U.S.C. 1221(e)(2)....................................................... 6, 2a

5 U.S.C. 1221(h)(2) (2006) ......................................... 19, 4a

5 C.F.R.:

Section 1209.4(c) (1991)............................................... 6, 19

Regulations—Continued:

Page

Section 1209.4(d).......................................................... 6, 19

29 C.F.R.:

Section 1980.104(e)(1) ....................................................... 9

Section 1980.104(e)(4) ....................................................... 9

Section 1980.105(a) ............................................................ 9

Section 1980.107 .............................................................. 10

Section 1980.109(a) .......................................................... 10

Section 1980.109(b) .......................................................... 10

Section 1980.110(a) .......................................................... 10

Section 1980.110(c)-(e) .................................................... 32

Section 1980.110(e) .......................................................... 10

Section 1980.112(a) .......................................................... 10

Section 1980.114(a) .......................................................... 10

Section 1980.114(b) .......................................................... 10

Miscellaneous:

134 Cong. Rec. (1988):

p. 27,854 .............................................................................. 5

p. 29,540 .............................................................................. 5

135 Cong. Rec. (1989):

p. 564 ............................................................................... 4, 5

p. 4509 ....................................................................... 5, 6, 23

p. 4511 ................................................................................. 5

p. 4513 ................................................................................. 6

p. 4641 ................................................................................. 5

p. 5033 ............................................................................. 5, 6

pp. 5033-5034...................................................................... 5

p. 5036 ................................................................................. 5

p. 5037 ................................................................. 5, 6, 23, 29

H.R. Rep. No. 167, 106th Cong.,

2d Sess. Pt. 1 (1999) ............................................................ 18

Miscellaneous—Continued:

Page

S. 508, 100th Cong. (1988) ....................................................... 4

S. 20, 101st Cong. § 3(a) (Jan. 25, 1989)................................. 5

S. Rep. No. 413, 100th Cong., 2d Sess. (1988) ..................... 22

S. Rep. No. 278, 105th Cong., 2d Sess. (1998)..................... 18

S. Rep. No. 146, 107th Cong., 2d Sess. (2002) ..................... 23

Webster’s New International Dictionary:

(2d ed. 1951) ..................................................................... 21

(2d ed. 1954) ..................................................................... 25

Webster’s II New Riverside University Dictionary

(1994) .................................................................................... 25

Webster’s Third New International Dictionary

(1986) .............................................................................. 20, 21

In the Supreme Court of the United States

No. 22-660

TREVOR MURRAY, PETITIONER

UBS SECURITIES, LLC, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case concerns whether an employee challenging

his termination after reporting potential securities-law

violations must establish that his employer acted with

“retaliatory intent” to establish a claim under 18 U.S.C.

1514A’s whistleblower provision. The United States

has a substantial interest in that question because the

Department of Labor (DOL) enforces Section 1514A

through agency adjudication, 18 U.S.C. 1514A(b), and

because the Securities and Exchange Commission

(SEC) has an interest in the protection of persons who

report potential violations of the federal securities laws

and regulations that the SEC enforces.

STATEMENT

1. Section 1514A of Title 18 of the United States

Code, which Congress enacted in the Sarbanes-Oxley

(1)

Act of 2002, Pub. L. No. 107-204, § 806(a), 116 Stat. 802,

makes it unlawful for certain employers to “discharge,

demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and

conditions of employment because of [specified whistleblowing activity].” 18 U.S.C. 1514A(a).

The administrative adjudication of an employee’s

Section 1514A claim is conducted by DOL and governed

by the rules and procedures specified in the Wendell H.

Ford Aviation Investment and Reform Act for the 21st

Century (AIR-21), Pub. L. No. 106-181, § 519(a), 114

Stat. 145 (enacting 49 U.S.C. 42121 (2000)). See 18 U.S.C.

1514A(b)(2)(A). Section 42121(b) provides that DOL

may find that a violation of Section 1514A(a) has occurred if an employee shows that his “[protected] behavior * * * was a contributing factor in the unfavorable

personnel action,” 49 U.S.C. 42121(b)(2)(B)(iii), but may

not order relief if the employer demonstrates by “clear

and convincing evidence” that it “would have taken the

same unfavorable personnel action in the absence of

that behavior,” 49 U.S.C. 42121(b)(2)(B)(iv).

Section 42121(b)’s burden-shifting language is drawn

from statutory text that Congress had previously enacted to govern the adjudication of federal-employee

whistleblower claims in the Whistleblower Protection

Act of 1989 (WPA), Pub. L. No. 101-12, § 3(a)(13), 103

Stat. 30 (enacting 5 U.S.C. 1221(e)(1) and (2) (Supp.

I 1989)). That WPA language, in turn, modified the

burden-shifting framework that was originally formulated in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287 (1977), for deciding an

employee’s First Amendment retaliation claim and that

had then been extended to federal-employee whistleblower claims. The evolution of that burden-shifting

language from Mt. Healthy to the WPA and its subsequent application in Section 42121(b) and then in Section 1514A, at issue here, informs the question presented in this case.

a. Mt. Healthy established a burden-shifting framework for establishing liability when an employee’s “protected [First Amendment] conduct played a ‘substantial

part’ in [his employer’s] actual decision not to renew”

his employment. 429 U.S. at 285. The Court rejected a

“rule of causation which focuses solely on whether protected conduct played a part, ‘substantial’ or otherwise,

in [the adverse employment] decision,” because such a

rule “could place an employee in a better position as a

result of the exercise of constitutionally protected conduct than he would have occupied had he done nothing,”

“even if the same decision would have been reached had

the [protected conduct] not occurred.” Ibid. The Court

instead “formulate[d] a test of causation,” id. at 286, under which an employee-plaintiff bears the “burden” of

showing that his “constitutionally protected * * * conduct was a ‘substantial factor’—or, to put in other words,

that it was a ‘motivating factor’ in the [defendant’s] decision not to rehire him.” Id. at 287 (footnote omitted).

If the plaintiff carries that burden of showing the “decision” was “taint[ed]” by an impermissible consideration, the defendant may nevertheless avoid liability by

“show[ing] by a preponderance of the evidence that it

would have reached the same [personnel] decision * * *

even in the absence of the protected conduct.” Ibid.

One year later, Congress enacted the Civil Service Reform Act of 1978 (CSRA), 5 U.S.C. 1101 et seq., with provisions prohibiting a federal agency from taking or failing to take a personnel action “as a reprisal” for a federal

employee’s whistleblowing activity, 5 U.S.C. 2302(b)(8)

(1988), or exercise of appeal rights, 5 U.S.C. 2302(b)(9)

(1988). Soon thereafter, the Merit Systems Protection

Board (MSPB) determined that an employee asserting

a CSRA reprisal claim had to show “retaliatory motive”

—which “in almost all situations [would need to] be inferred from circumstantial evidence”—by proving that

“retaliation for the [protected activity] is a significant

factor in the challenged personnel action.” In re Frazier, 1 M.S.P.B. 159, 186, 188 (1979), aff ’d, 672 F.2d 150

(D.C. Cir. 1982).

The MSPB utilized Mt. Healthy’s burden-shifting

framework to adjudicate those claims, requiring a federal employee to first prove that “retaliation was a significant factor in the [adverse] action.” Gerlach v. FTC,

8 M.S.P.B. 599, 604-605 & nn.7, 13 (1981) (discussing

“retaliatory motive” and “intent”); see Warren v. Department of the Army, 804 F.2d 654, 657-658 (Fed. Cir.

1986). Like Mt. Healthy, the MSPB described that standard as whether retaliation was a “ ‘substantial’ or ‘motivating’ factor” in the agency action. Gerlach, 8 M.S.P.B.

at 604. If the employee carried that burden, the agency

could defeat liability by “prov[ing] by a preponderance

of the evidence” that it “would have” taken the same action “absent the protected conduct.” Spadaro v. U.S.

Dep’t of Interior, 18 M.S.P.R. 462, 465 (1983).

b. In 1989, Congress enacted 5 U.S.C. 1221(e) as

part of the WPA to codify a modified burden-shifting

framework for federal-employee whistleblower claims.

Both Houses of Congress had “unanimously approved”

the WPA’s predecessor bill (S. 508, 100th Cong.) in late

1988, 135 Cong. Rec. 564 (1989) (Sen. Levin), with text

for Section 1221(e) that directed the MSPB to order corrective action if the whistleblower “has demonstrated

that a [protected] disclosure * * * was a factor in [an

adverse] personnel action” and the employing agency

failed to show “by clear and convincing evidence that it

would have taken the same personnel action in the absence of such disclosure.” 134 Cong. Rec. 29,540 (1988)

(bill text). The “a factor” standard in that bill and the

clear-and-convincing-evidence burden on the employing

agency to avoid liability were designed to “codify the

test set out by * * * Mt. Healthy,” with modifications

that would (a) “supersede[]” the then-existing “substantial, motivating or predominant factor” requirement,

and (b) impose a “higher standard of proof ” for the employing agency’s “defense.” Id. at 27,854 ( joint explanatory statement). President Reagan pocket vetoed that

bill, but in 1989 the same bill was reintroduced without

change (as S. 20). 135 Cong. Rec. at 564; S. 20, 101st

Cong. § 3(a) (Jan. 25, 1989) (Section 1221(e)).

“[T]he Mount Healthy test * * * was a major point of

negotiation” between the bill’s sponsors and the Administration. 135 Cong. Rec. at 5036. The negotiations led

to an amendment clarifying the bill’s Mt. Healthy provision by “insert[ing] ‘contributing’ before ‘factor,’ ” but

leaving the agency’s clear-and-convincing-evidence defense unchanged. Id. at 4641 (amendment text); see id.

at 4509 (Sen. Levin), 5033 (explanatory statement), 5037

(Rep. Schroeder). Attorney General Thornburgh memorialized the agreement by letter, explaining that, under

the text of the bill’s modified “Mt. Healthy test,” “[a]

‘contributing factor’ need not be ‘substantial’ ” and that

the test merely imposed on an employee the “burden

* * * to prove that the whistleblowing contributed in

some way to the agency’s decision.” Id. at 4511, 50335034 (letter); see id. at 4509, 5033, 5037. The bill’s primary sponsors also emphasized that the “ ‘contributing

factor’ ” language was “specifically intended to overrule

existing case law” requiring “a whistleblower to prove

that his protected conduct was a ‘significant,’ ‘motivating,’ ‘substantial,’ or ‘predominant’ factor in a personnel

action,” id. at 4509, 5033; see id. at 4513, and that, “importantly, the addition of the word ‘contributing’ does

not place any requirement on the whistleblower * * * to

produce evidence proving retaliatory motive,” id. at

5037 (Rep. Schroeder).

Congress thereafter enacted the WPA with that

“contributing factor” language. Accordingly, when a

federal employee alleges that an agency took or failed

to take a “personnel action * * * because of [his protected disclosure],” 5 U.S.C. 2302(b)(8), Section 1221(e)

provides that the “[MSPB] shall order such corrective

action as the Board considers appropriate if the employee * * * has demonstrated that a [protected] disclosure * * * was a contributing factor in the personnel action.” WPA § 3(a)(13), 103 Stat. 30 (Section 1221(e)(1)).

But no corrective action may be ordered “if the agency

demonstrates by clear and convincing evidence that it

would have taken the same personnel action in the absence of such disclosure.” Ibid. (Section 1221(e)(2)).

In 1990, the MSPB implemented the WPA with regulations defining “[c]ontributing factor [to] mean[] any

disclosure that affects an agency’s decision to threaten,

propose, take, or not take a personnel action with respect to the individual making the disclosure.” 5 C.F.R.

1209.4(c) (1991) (now 5 C.F.R. 1209.4(d)). The Federal

Circuit held soon thereafter that, under 5 U.S.C.

1221(e)(1), a whistleblower must establish “only that his

protected disclosure played a role in, or was ‘a contributing factor’ to, the personnel action,” and that that test

is satisfied where “ ‘any’ weight [is] given to the protected disclosure.” Marano v. Department of Justice,

2 F.3d 1137, 1140 (1993) (citation omitted). The Federal

Circuit further held that “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.

c. After enacting the WPA, Congress enacted multiple similar whistleblower statutes—including AIR-21 in

2000—to protect private-sector employees. Congress

directed DOL to adjudicate those whistleblower claims

by using the same “contributing factor” and clear-andconvincing-evidence standards as in the WPA. See 49

U.S.C. 42121(b)(2)(B).1

d. In 2002, Congress enacted the Sarbanes-Oxley

Act “[t]o safeguard investors in public companies and

restore trust in the financial markets following the collapse of Enron Corporation.” Lawson v. FMR LLC, 571

U.S. 429, 432 (2014). “Of particular concern to Congress

was abundant evidence that Enron had succeeded in

perpetuating its massive shareholder fraud in large

part due to a ‘corporate code of silence’ ” that “ ‘discouraged employees from reporting fraudulent behavior.’ ”

Id. at 435 (citation and brackets omitted). Congress acSee also, e.g., Motor Vehicle and Highway Safety Improvement

Act of 2012, Pub. L. No. 112-141, Div. C, Tit. I, § 31307(a), 126 Stat.

766-769 (enacting 49 U.S.C. 30171(b)); FDA Food Safety Modernization Act, Pub. L. No. 111-353, § 402, 124 Stat. 3968-3971 (amending the Federal Food, Drug and Cosmetic Act, 21 U.S.C. 301 et seq.,

by adding 21 U.S.C. 399d(b) in 2011); Consumer Product Safety Improvement Act of 2008, Pub. L. No. 110-314, § 219(a), 122 Stat. 30633065 (enacting 15 U.S.C. 2087(b)); Energy Policy Act of 1992, Pub.

L. No. 102-486, § 2902(d), 106 Stat. 3123-3124 (amending Energy

Reorganization Act of 1974, 42 U.S.C. 5801 et seq., by adding 42

U.S.C. 5851(b)(3)).

cordingly enacted a “whistleblower regime”—codified

at 18 U.S.C. 1514A—to advance the “far-reaching objective” of disrupting that “ ‘code of silence’ ” by protecting those who “report[] corporate misconduct.” Digital

Realty Trust, Inc. v. Somers, 138 S. Ct. 767, 773, 778

(2018) (citation and brackets omitted). Section 1514A

provides that no publicly traded company, or any officer, employee, contractor, subcontractor, or agent of

such company, “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 [whistleblowing activity] done by

the employee” concerning conduct that the employee

reasonably believes violates certain federal fraud statutes or an SEC rule or regulation. 18 U.S.C. 1514A(a).

i. “Congress designed [Section] 1514A to ‘track . . .

as closely as possible’ the protections afforded by [49

U.S.C.] 42121,” which had been enacted two years earlier in AIR-21. Lawson, 571 U.S. at 457 (citation omitted). A whistleblower alleging an adverse employment

action in violation of Section 1514A(a) must therefore

file an administrative complaint with the Secretary of

Labor that, with one exception not relevant here, “shall

be governed under the rules and procedures set forth in

[S]ection 42121(b).” 18 U.S.C. 1514A(b)(1)(A) and (2)(A).2

Congress has similarly incorporated Section 42121’s adjudicatory framework into other private-sector whistleblower provisions.

See, e.g., Anti-Money Laundering Act of 2020, Pub. L. No. 116-283,

Div. F, § 6314, 134 Stat. 4601-4602 (enacting 31 U.S.C. 5323(g)(3));

Criminal Antitrust Anti-Retaliation Act of 2019, Pub. L. No. 116257, § 2, 134 Stat. 1148-1149 (enacting 15 U.S.C. 7a-3(b)); Implementing Recommendations of the 9/11 Commission Act of 2007,

Pub. L. No. 110-53, §§ 1521, 1536, 121 Stat. 446, 465-466 (amending

49 U.S.C. 20109(c)(2) (now (d)(2)) and 31105(b)).

First, under Section 42121(b), DOL’s Occupational

Safety and Health Administration (OSHA), which enforces private-sector whistleblower statutes, must dismiss a complaint without “conduct[ing] an investigation” if the complainant fails to make a “prima facie

showing” that protected activity was a “contributing

factor” in the unfavorable treatment or the employer

establishes its “clear and convincing evidence” defense.

49 U.S.C. 42121(b)(2)(B)(i) and (ii); see 29 C.F.R.

1980.104(e)(1) and (4).

Second, if OSHA conducts an investigation, it must

notify the parties of its findings and—if it finds “reasonable cause to believe that the complaint has merit”—it

must issue those findings with “a preliminary order”

providing relief. 49 U.S.C. 42121(b)(2)(A); see 29 C.F.R.

1980.105(a). Section 42121(b) provides that “[t]he Secretary may determine that a violation of subsection (a)

has occurred only if the complainant demonstrates that

any [protected whistleblowing] behavior * * * was a contributing factor in the unfavorable personnel action.”

49 U.S.C. 42121(b)(2)(B)(iii). But relief “may not be ordered * * * 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.” 49 U.S.C. 42121(b)(2)(B)(iv).3

If no party timely requests a hearing, the preliminary order is “deemed a final order that is not subject

to judicial review.” 49 U.S.C. 42121(b)(2)(A). Otherwise, an administrative law judge (ALJ) must expediDOL would dismiss a complaint without determining whether

a violation has occurred if the employee is shown to have filed outside the 180-day statute of limitations, 18 U.S.C. 1514A(b)(2)(D), or

if a settlement is reached before DOL’s final order, 49 U.S.C.

42121(b)(3)(A).

tiously conduct an “on the record” hearing, ibid., and

issue an order, 49 U.S.C. 42121(b)(3)(A); see 29 C.F.R.

1980.107. The ALJ must apply the “contributing factor”

burden-shifting framework previously discussed. 29

C.F.R. 1980.109(a) and (b). The ALJ’s decision is subject to review by DOL’s Administrative Review Board

(ARB) and (since 2020) “discretionary review by the

Secretary.” 29 C.F.R. 1980.110(a) and (e). The final

agency decision is then subject to review in a court of

appeals. 49 U.S.C 42121(b)(4); 29 C.F.R. 1980.112(a).

ii. Under Section 1514A, if a final agency decision is

not issued within 180 days after the complaint is filed,

the complainant generally may bring a district court action “for de novo review.” 18 U.S.C. 1514A(b)(1)(B);

29 C.F.R. 1980.114(a). That action is likewise “governed by the legal burdens of proof set forth in [S]ection

42121(b).” 18 U.S.C. 1514A(b)(2)(C); see 29 C.F.R.

1980.114(b).4

2. In 2011, respondent UBS Securities (respondent)

hired petitioner for respondent’s commercial mortgagebacked securities (CMBS) business as a research strategist responsible for reporting on CMBS markets to

current and future customers. Pet. App. 2a-3a. Petitioner was required by SEC regulations to certify that

his reports were produced independently and accurately reflected his own views. Id. at 3a & n.1.

Petitioner contends that two leaders of respondent’s

CMBS trading desk gave him negative feedback about

his reports to customers and “pressured him to skew his

Section 42121(b) authorizes an administrative action with judicial review in a court of appeals but, unlike Section 1514A(b)(1)(B),

does not provide for a freestanding district court action. See 49

U.S.C. 42121(b)(1)-(4).

research and to publish reports to support their business strategies.” Pet. App. 3a-4a. In December 2011

and January 2012, petitioner reported that conduct to

his direct supervisor, Michael Schumacher, asserting it

was unethical and illegal. Id. at 4a. When petitioner

informed Schumacher that the situation with the trading desk was “bad and getting worse,” Schumacher responded that petitioner should just “write what the

business line wanted.” Id. at 4a-5a (citations omitted).

Shortly after that exchange, Schumacher emailed his

own supervisor and recommended that petitioner be

fired. Id. at 5a. Schumacher recommended in the alternative that if “ ‘the CMBS team want[s] to keep a presence in analysis, they c[ould] move [petitioner] onto the

[trading] desk’ as a desk analyst.” Ibid. (citation omitted). The trading desk declined to accept a transfer of

petitioner and, in February 2012, respondent fired him.

Ibid.

3. In August 2012, petitioner filed a complaint with

OSHA alleging that his termination violated Section

1514A. 2/24/2015 D. Ct. Op. 5. In February 2014, after

waiting the requisite 180-day period, petitioner filed

this Section 1514A action in district court. Id. at 5-6.

As relevant here, at trial, the district court instructed the jury that petitioner must establish four elements

to prove his Section 1514A claim: (1) “[petitioner] engaged in activity protected [by Section 1514A]”; (2) “[respondent] knew that [petitioner] engaged in the protected activity”; (3) “[petitioner] suffered an adverse

employment action—here, the termination of his employment”; and (4) “[petitioner’s] protected activity was

a contributing factor in the termination of his employment.” C.A. App. 3050; see J.A. 126-127.

The district court further instructed that, “[f ]or a

protected activity to be a contributing factor, it must

have either alone, or in combination with other factors,

tended to affect in any way UBS’s decision to terminate

[petitioner’s] employment.” C.A. App. 3053; see J.A.

130. Later, while deliberating, the jury submitted a note

asking about the tended-to-affect instruction. J.A. 179

(Exhibit 4-3). The court’s written answer, after referring the jury to the relevant pages of the court’s original

instructions addressing the contributing-factor element, clarified that what the jury “should consider” is

“did anyone with th[e] knowledge of [petitioner’s] protected activity, because of the protected activity, affect

in any way the decision to terminate [petitioner’s] employment.” J.A. 180.

The jury found that petitioner established his Section 1514A claim and that respondent failed to “prove[],

by clear and convincing evidence, that it would have terminated [petitioner’s] employment * * * even if he had

not engaged in protected activity.” C.A. App. 3065 (verdict form); see Trial Tr. 2441-2443. The district court

awarded petitioner approximately $900,000 in damages

plus $1.77 million in attorney’s fees and costs. Pet. App.

7a.

4. The court of appeals vacated and remanded for a

new trial. Pet. App. 1a-17a.

The court of appeals first found—as respondents had

acknowledged, Resps. C.A. Br. 12—that the jury instructions correctly identified the four elements of a

Section 1514A claim. Pet. App. 10a; see id. at 6a. But

the court agreed with respondents’ argument that the

district court’s elaboration of the “contributing factor

element” was erroneous because it “fail[ed] to account

for the statute’s explicit requirement that the employer’s

conduct be ‘discriminatory.’ ” Id. at 10a-11a (brackets

omitted). The court stated that “[t]o ‘discriminate’

means ‘to act on the basis of prejudice,’ which requires

a conscious decision to act based on a protected characteristic or action”—here, a “conscious disfavor of an employee for whistleblowing.” Id. at 9a-10a (citation and

brackets omitted). Based on that account, the court held

that “to prevail on the ‘contributing factor’ element of a

[Section 1514A] antiretaliation claim, a whistlebloweremployee must prove that the employer took the adverse

employment action against the whistleblower-employee

with retaliatory intent.” Id. at 11a.

SUMMARY OF ARGUMENT

The court of appeals erred in holding that the “contributing factor” test applicable to Section 1514A claims

requires proof of retaliatory intent.

A. The adjudication of a whistleblower claim under

Section 1514A is governed by a statutory burden-ofproof provision that requires a complainant to demonstrate that his “[protected] behavior * * * was a contributing factor in the unfavorable personnel action,” 49

U.S.C. 42121(b)(2)(B)(iii). See 18 U.S.C. 1514A(b)(2)(A)

and (C). A complainant need not prove that the employer harbored retaliatory intent to carry that burden.

1. Congress enacted the term “contributing factor”

in Section 42121(b)(2)(B) as a term of art. Congress

first adopted that distinctive text in 1989 in the WPA to

govern the adjudication of federal-employee whistleblower claims. And when Congress transplanted the

same term into the private-sector whistleblower provisions of Section 42121 (in 2000) and Section 1514A (in

2002), it was well established that the “contributing factor” test did not require proof of retaliatory intent.

Congress accordingly adopted that understanding.

2. That established meaning of “contributing factor”

reflects the most natural reading of the term. A “factor”

is something that contributes to the production of a result. And the adjective “contributing” likewise describes

something that has a part in producing an effect. A

“contributing factor” therefore is most naturally read

broadly to include something that plays a role in producing a result. Moreover, under the “contributing factor” test, the complainant must show that his protected

“behavior” was a “contributing factor.” 49 U.S.C.

42121(b)(2)(B)(iii) (emphasis added). If Congress had

intended to require a complainant also to demonstrate

that reprisal, retaliation, or retaliatory intent by the

employer was a contributing factor, it would have enacted text to that effect.

3. Indeed, when Congress first enacted the “contributing factor” test in the WPA for whistleblower claims,

it was expressly designed not to impose a requirement

to prove retaliatory intent. Before the WPA, the leading decision in this context required that a federal employee prove “retaliatory motive” and therefore show

that “retaliation for the [protected activity was] a significant factor in the challenged personnel action.”

Congress specifically rejected that approach by requiring a complainant to demonstrate only that his “[protected] behavior”—not retaliation—was a “contributing

factor”—not a significant one—in the personnel action.

That approach reflects a legislative judgment that whistleblowing should never be a factor that contributes in

any way to, and thereby taints, an adverse personnel

action in this context.

B. Neither the court of appeals nor respondents appear to dispute that the “contributing factor” standard

does not require proof of retaliatory intent in the WPA

context. They instead conclude that the same “contributing factor” standard should be given a different meaning under Section 1514A because Section 1514A(a) uses

the term “discriminate.” Pet. App. 9a-11a. That is wrong.

1. The term “discriminate” simply means to treat

differently. It does not require that an employer act because of malevolent motive or prejudice. Congress here

used “discriminate” in a catchall phrase that extends

Section 1514A’s prohibition beyond the types of differential treatments specifically listed and to capture all

forms of adverse treatment in the terms and conditions

of private-sector employment. That catchall phrase

does not speak to an employer’s intent.

2. Even if Section 1515A(a) were read to prohibit

only unfavorable personnel action motivated by retaliatory intent, the burden-shifting provisions incorporated

into Section 1514A(b) would be properly understood to

impose a legal presumption of retaliatory intent where

the complainant has demonstrated that the employer

had knowledge of the protected activity and that activity was a “contributing factor” in the personnel action.

C. The foregoing analysis reflects the best interpretation of the statutory text and context. And DOL’s

ARB has long interpreted Section 1514A not to require

proof of retaliatory intent. That reasonable interpretation, made in a formal agency adjudication, is entitled to

Chevron deference because the Secretary of Labor has

delegated her adjudicatory authority to the ARB and

the ARB’s interpretation of the statutory burdens of

proof that apply directly in agency adjudication falls

squarely within its authority.

ARGUMENT

SECTION 1514A DOES NOT REQUIRE A WHISTLEBLOWER

TO PROVE THAT HIS EMPLOYER ACTED WITH “RETALIATORY INTENT”

Section 1514A whistleblower claims are governed by

Section 42121(b)’s burden-of-proof provisions, which establish a two-step burden-shifting process for adjudicating those claims. See 18 U.S.C. 1514A(b)(2)(A) and

(C); pp. 9-10 & n.4, supra. Under the first step, which

defines the whistleblower’s affirmative case, the whistleblower must “demonstrate[] that any [of his protected] behavior * * * was a contributing factor in the unfavorable personnel action.” 49 U.S.C. 42121(b)(2)(B)(iii).

As this case comes to the Court, the parties (and the

court of appeals) have agreed with the jury instructions

that, to establish an affirmative case under Section

1514A, a whistleblower must prove four elements by a

preponderance of the evidence: “(1) [the whistleblower]

engaged in protected activity; (2) the employer knew

that he engaged in the protected activity; (3) he suffered

an unfavorable personnel action; and (4) the protected

activity was a contributing factor in the unfavorable action.” Pet. App. 10a (citation and brackets omitted); see

id. at 6a; Resps. C.A. Br. 12; Resps. C.A. Reply Br. 15;

Pet. C.A. Br. 16, 19-20, 39-40. The question in this case

is whether the court of appeals erred in holding that the

“ ‘contributing factor’ element” requires proof that “the

employer took the adverse employment action against

the whistleblower-employee with retaliatory intent,”

Pet. App. 11a, such as where the employer acted out of

prejudice, animus, or comparable hostile or culpable intent. See id. at 9a-10a, 13a-14a; Br. in Opp. 15, 18-19.

That holding was erroneous.

Section 42121(b)(2)(B)’s burden-shifting text and the

origin of the “contributing factor” test in the WPA make

clear that “contributing factor” is a term of art in the

whistleblowing context that simply requires a showing

that the whistleblower’s protected behavior—not retaliatory intent of the employer—was a factor that contributed in some way to the unfavorable action. The complainant’s proof that the employer had knowledge of his

protected activity, and that the protected activity was a

contributing factor in the adverse treatment, constitute

a sufficient showing of the employer’s state of mind and

prohibited response to that activity.

A. Section 1514A’s “Contributing Factor” Test Does Not

Require Proof Of “Retaliatory Intent”

The term “contributing factor,” which was first enacted in the WPA and was then incorporated in Section

42121(b)(2)(B)(iii), is a term of art that has long been

interpreted under the WPA not to require proof that

the employer harbored retaliatory intent. That interpretation reflects the most natural understanding of the

statutory text. And the drafting history of Congress’s

enactment of the WPA in 1989 further confirms that it

is the correct understanding of the statutory text.

1. “Contributing factor” is a term of art that has long

been interpreted not to require a showing of retaliatory intent

a. It is well settled that “[w]here Congress employs

a term of art ‘obviously transplanted from another legal

source,” ’ such as prior legislation, “it ‘brings the old soil

with it.’ ” George v. McDonough, 142 S. Ct. 1953, 1959

(2022) (quoting Taggart v. Lorenzen, 139 S. Ct. 1795,

1801 (2019)); see Stokeling v. United States, 139 S. Ct.

544, 551 (2019). That principle applies with particular

force here, where “Congress used an unusual term”—

contributing factor—that had a well-established “history in this very context.” George, 142 S. Ct. at 1959.

Congress enacted Section 42121 (and Section 1514A)

with “no new ‘definition’ or other provision indicating

any departure from the ‘same meaning’ ” of that term

that had developed under the WPA. Ibid. (citation omitted). As a result, Section 42121(b)(2)(B) “ ‘codified and

adopted the [interpretation of “contributing factor”

that] had developed under’ [the WPA].” Ibid. (citation

and brackets omitted); see United States v. Castleman,

572 U.S. 157, 174 (2014) (Scalia, J., concurring in part

and concurring in the judgment) (explaining that the interpretive presumption that a term “means the same

thing each time it is used” applies “ ‘when Congress uses

the same language in two statutes having similar purposes’ ”) (citation omitted).

That conclusion flows not only from Section 42121(b)’s

use of the WPA’s distinctive “contributing factor” formulation, but also from the balance of Section 42121(b)’s

burden-shifting framework, which further incorporates

the WPA’s distinctive formulation of an employer’s defense. 49 U.S.C. 42121(b)(2)(B); see 5 U.S.C. 1221(e).5

Indeed, in the same law (AIR-21) that enacted Section 42121,

Congress amended earlier 1995 reform legislation for the Federal

Aviation Administration (FAA)—which had inadvertently barred

FAA employees from filing whistleblower claims under 5 U.S.C.

1221—by reextending civil-service “whistleblower protection[s]” to

FAA employees, including “the provisions for * * * enforcement as

provided in chapter 12 of title 5.” 49 U.S.C. 40122(g)(2)(A); H.R.

Rep. No. 167, 106th Cong., 2d Sess. Pt. 1, at 33, 35-36 (1999) (bill

text); see id. at 118; S. Rep. No. 278, 105th Cong., 2d Sess. 21, 44-45,

78 (1998). Congress thus reapplied the WPA’s contributing-factor

burden-shifting framework in 5 U.S.C. 1221(e) to those federal whistleblower claims and simultaneously enacted Section 42121’s text

b. When Congress enacted Section 42121 in 2000

(and then Section 1514A in 2002), it was already established under the WPA that a whistleblower need not

prove retaliatory intent to carry his burden of showing

that protected activity was a “contributing factor” in an

adverse personnel action.

Since 1990, the WPA’s implementing regulations have

defined “[c]ontributing factor” to mean “any disclosure

that affects an agency’s decision” to take the challenged

adverse action. 5 C.F.R. 1209.4(c) (1991) (now 5 C.F.R.

1209.4(d)). In 1993, the Federal Circuit—which from its

creation in 1982 has had primary jurisdiction to review

MSPB decisions on Section 1221 whistleblower claims,

5 U.S.C. 1221(h)(2), 7703(b)(1) (2006)—determined that,

under the WPA’s “ ‘contributing factor’ test” in Section

1221(e), a whistleblower carries his burden of proof by

showing that “his protected disclosure played a role in

* * * the personnel action.” Marano v. Department of

Justice, 2 F.3d 1137, 1140. That occurs if “ ‘any’ weight

[is] given to the protected disclosure, either alone or

even in combination with other factors.” Ibid. And the

Federal Circuit made clear that although “evidence of a

retaliatory motive would [be sufficient] to establish” a

whistleblower’s claim, “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.

The court explained that that statutory standard reflects a legislative judgment that—“[r]egardless of the

with the same contributing-factor and clear-and-convincing-evidence

tests for private-sector whistleblower claims. AIR-21 §§ 307(a),

519(a), 114 Stat. 124, 146-147 (enacting 49 U.S.C. 40122(g)(2)(A) and

42121(b)(2)(B)).

official’s motives”—“personnel actions against employees should quite simply not be based on protected [whistleblowing] activities.” Ibid. (citation and brackets omitted).

Thus, well before the 2000 enactment of Section

42121 and the 2002 enactment of Section 1514A, it was

clear that “retaliatory animus” or “ ‘motive’ ” is not a

“requirement in the [WPA]” because a federal-employee

whistleblower need not establish such intent to show

that a “ ‘disclosure was a contributing factor to [a] personnel action.’ ” Kewley v. HHS, 153 F.3d 1357, 1362

(Fed. Cir. 1998) (quoting Marano, 2 F.3d at 1141); see,

e.g., Caddell v. DOJ, 61 M.S.P.R. 670, 681 (1994); see

also Carr v. SSA, 185 F.3d 1318, 1323-1325 (Fed. Cir.

1999) (explaining that questions of retaliatory motive

are considered as part of employer’s defense). And

when Congress transplanted the same “contributing

factor” test to define the elements of a private-sector

whistleblower’s claim under Section 42121 (and, later,

under Section 1514A), Congress “adop[ted] the cluster

of ideas that were attached” to that term of art, George,

142 S. Ct. at 1963 (citation omitted), including that a

complainant need not prove retaliatory intent.

2. The term “contributing factor” is most naturally

read not to require a showing of retaliatory intent

Beyond the incorporation of the settled understanding under the WPA, the statutory text in Section

42121(b)(2)(B)(iii) demonstrates that proof of retaliatory intent is not required. That text simply requires

proof that protected activity was a “contributing factor”

in the employer’s action.

The word “factor” describes “something * * * that

contributes to the production of a result.” Webster’s

Third New International Dictionary 813 (1986) (Web-

ster’s Third); accord Webster’s New International Dictionary 908 (2d ed. 1951) (Webster’s Second) (“One of

the elements, circumstances, or influences that contribute to produce a result.”). The adjective “contributing”

similarly describes something that “has a part in producing an effect.” Webster’s Third 496; cf. Webster’s

Second 580 (defining verb “contribute” to mean “to have

a share in any act or effect”). A “contributing factor” is

therefore most naturally understood broadly to include

something that plays a role in producing a result.

That understanding is reinforced by the manner in

which the term is used in 49 U.S.C. 42121(b)(2)(B)(iii).

That provision requires that “[protected] behavior” was

a “contributing factor” (ibid.), i.e., the whistleblowing itself must have had some role—“a part”—in “producing”

the unfavorable personnel action. Webster’s Third 496.

That text does not suggest that a whistleblower

bears the burden of proving that some “retaliatory intent” of the employer played a role in the decision. If

Congress had intended to require that showing, it would

have enacted text requiring a whistleblower to demonstrate that “reprisal,” “retaliation,” “retaliatory intent,”

or some other textual description of such a motive of

the employer—rather than the protected activity of the

employee—“was a contributing factor in the unfavorable personnel action,” 49 U.S.C. 42121(b)(2)(B)(iii). In

fact, Congress has enacted similar language in one

unique civil-service context by providing that a federal

employee whose principal job function is to investigate

and disclose wrongdoing may invoke the CSRA’s whistleblower protections but must “demonstrate[] that an

employee [with supervisory authority]” took an adverse

“personnel action with respect to the [complainant] in

reprisal for the disclosure.” 5 U.S.C. 2302(f )(2) (emphasis added).

By eschewing such language for Section 1514A, Congress afforded broader protection, requiring only that

the plaintiff demonstrate that “[protected] behavior was

a contributing factor.” 49 U.S.C. 42121(b)(2)(B)(iii) (emphasis added). And while showing that the employer

acted with retaliatory animus in response to whistleblowing activity is one way of showing that protected

activity played a role in producing the adverse action,

it has long been settled under the WPA—from which

Section 42121(b), and thus Section 1514A, was drawn—

that it is neither the only way nor a necessary means of

satisfying the “contributing factor” test. See Marano,

2 F.3d at 1141.

3. The drafting history surrounding Congress’s enactment of the “contributing factor” test confirms that

it does not require a showing of retaliatory intent

When Congress first enacted the “contributing factor” test in 1989, it was specifically designed not to impose a requirement to prove retaliatory intent. Prior to

the WPA, the leading decision relevant to whistleblower

claims held that a federal employee did have to prove

“retaliatory motive” (often “inferred from circumstantial evidence”) and that “the appropriate test” required

the employee to prove that “retaliation for the [protected activity] is a significant factor in the challenged

personnel action.” In re Frazier, 1 M.S.P.B. 159, 186,

188 (1979) (emphasis added), aff ’d, 672 F.2d 150 (D.C.

Cir. 1982); see p. 4, supra; S. Rep. No. 413, 100th Cong.,

2d Sess. 11, 13, 16 (1988) (explaining that Frazier established the “elements” of an employee’s case and required proof that “retaliation was a ‘significant’ factor

in the agency’s actions”). In 1989, Congress rejected

that approach by enacting the WPA, which lowered the

employee’s burden of proof to require only that he “demonstrate[] that a [protected] disclosure”—not retaliation for the disclosure—“was a contributing factor”—not

a significant factor—“in the personnel action.” 5 U.S.C.

1221(e)(1).

That deliberate textual choice reflects the judgment

that “[w]histleblowing should never be a factor that contributes in any way to an adverse personnel action”;

and, if it does, the “action [i]s tainted” and gives rise to

liability unless (in the second half of the burden-shifting

process) the employer can “demonstrate, by clear and

convincing evidence, that it would have taken the same

action even in the absence of the whistleblowing.” 135

Cong. Rec. at 4509 (Sen. Levin); id. at 5033 (explanatory

statement); see pp. 4-6, supra (describing WPA’s drafting history). Thus, as the bill manager in the House of

Representatives emphasized, one of the “[m]ost important[]” features of the contributing-factor standard

is that it “does not place any requirement on the whistleblower * * * to produce evidence proving retaliatory

motive.” 135 Cong. Rec. at 5037 (Rep. Schroeder).

And when Congress later enacted Section 1514A, it incorporated the WPA’s provisions for “government employees” who “report[] wrongdoing” through Section

42121 because “similar protection” was needed to protect private-sector employees “who blow the whistle on

fraud and protect investors.” S. Rep. No. 146, 107th

Cong., 2d Sess. 10, 13 & n.12, 30 (2002).

B. Section 1514A(a) Does Not Alter The Burden-Shifting

Framework For Adjudicating Whistleblower Claims

Under The “Contributing Factor” Test

Neither the court of appeals nor respondents appear

to dispute that the “contributing factor” standard in the

WPA context does not require proof of retaliatory intent. See Br. in Opp. 10-11; Resps. C.A. Br. 33-34 & n.1

(arguing that WPA’s “contributing factor” test is different). Instead, the court held (as respondents argued)

that the same “contributing factor” text that is incorporated in Section 1514A(b) to define the whistleblower’s

burden of proof should be given a different meaning

than under the WPA, because Section 1514A(a) uses the

term “discriminate.” The court (like respondents) read

the statute to require—as part of “the ‘contributing factor’ element of a [Section 1514A] claim”—“pro[of ] that

the employer took the adverse employment action

against the whistleblower-employee with retaliatory intent.” Pet. App. 9a, 11a; see Br. in Opp. 2, 10-11, 15-16,

18-19; Resps. C.A. Reply Br. 12-13, 15-16 (arguing that

the “ ‘contributing factor’ prong requires a plaintiff to

show that the employer’s decision was motivated, at

least in part, by a desire to retaliate against the plaintiff

for engaging in protected activity”) (citation omitted);

Resps. C.A. Br. 15-19. That holding is wrong.

1. Section 1514A(a) does not require proof of retaliatory

intent

The court of appeals significantly overread Section

1514A(a)’s use of the term “discriminate.” And in doing

so, the court failed to properly interpret that language

in light of Section 1514A(b)(2)(C), which specifies the

whistleblower’s burden of proof and thereby specifies

the elements of a Section 1514A claim.

a. The court of appeals concluded that Section

1514A(a) “unambiguous[ly]” requires proof of “retaliatory

intent” because it uses the term “ ‘discriminate’ ” (Pet.

App. 9a-10a) when providing that it is unlawful to “discharge, demote, suspend, threaten, harass, or in any

other manner discriminate against an employee * * *

because of ” protected conduct, 18 U.S.C. 1514A(a). The

court reached that conclusion based on its view that

“discriminate” means “ ‘to act on the basis of prejudice’ ”

and requires proof of “the employer’s conscious disfavor

of an employee for whistleblowing.” Pet. App. 9a-10a

(quoting Webster’s II New Riverside University Dictionary 385 (1994)) (brackets omitted). That is incorrect.

As a textual matter, the word “discriminate” typically means “[t]o make a difference in treatment or favor (of one as compared with others).’’ Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1740 (2020) (quoting Webster’s

Second 745 (1954) and stating that the term in 1964

meant “roughly what it means today”). This Court has

therefore emphasized that the “normal definition” of

“discrimination” is simply “differential treatment,” Babb

v. Wilkie, 140 S. Ct. 1168, 1173 (2020) (quoting Jackson

v. Birmingham Bd. of Educ., 544 U.S. 167, 174 (2005)),

and, for that reason, “the term ‘discriminate against’ refers to distinctions or differences in treatment that injure protected individuals,” Burlington N. & Santa Fe

Ry. v. White, 548 U.S. 53, 59 (2006) (Title VII retaliation); see Bostock, 140 S. Ct. at 1740 (treatment “worse”

than that given to others “similarly situated”). That is

what the word “discriminate” in Section 1514A(a)

means. And a prohibition against such different treatment “does not depend on why the employer discriminates” or the presence of “malevolent motive.” International Union v. Johnson Controls, Inc., 499 U.S. 187,

199 (1991); see, e.g., Bostock, 140 S. Ct. at 1743 (discussing cases imposing Title VII disparate-treatment liability even though the employer “tended to favor hiring

women” or sought to treat categories of men and women

“equal[ly]” without “animosity” against women).

Section 1514A(a) identifies a short list of specific types

of acts constituting forbidden differential treatment

“because of ” protected whistleblowing: “discharge, demot[ion], suspen[sion], threat[s], [and] harass[ment].”

18 U.S.C. 1514A(a). By then including a catchall phrase

making it unlawful to “in any other manner discriminate

against an employee in the terms and conditions of employment,” ibid., Congress simply extended Section

1514A’s prohibition to the full range of adverse “difference[s] in treatment,” Bostock, 140 S. Ct. at 1740, beyond those actions specifically mentioned. Unlike the

federal agency context at issue in the WPA, where Congress has continued over time to refine a long list of the

types of federal-agency “personnel action[s]” that are

prohibited if taken “because of ” protected whistleblowing, 5 U.S.C. 2302(b)(8); see 5 U.S.C. 2302(a)(2) (list),

Congress instead employed capacious language in the

catchall phrase in Section 1514A(a) to capture all forms

of adverse treatment in the terms and conditions of

private-sector employment because of whistleblowing.

That phrase describing the range of prohibited adverse treatments does not speak to the employer’s intent, much less require proof of animus or retaliatory

intent. To the contrary, as explained above, the relevant text is drawn directly from the WPA, which Congress enacted to reject prior decisions requiring proof

of retaliatory intent. See pp. 17-23, supra. The court of

appeals failed to consider that critical context informing

the proper interpretation of Section 1514A(a).

b. Respondents contend (Br. in Opp. 16) that it makes

no sense “[t]o speak of retaliation without intent” and

that, “[b]y definition, retaliation is disparate treatment

on account of protected activity.” But although the title

of Section 1514A describes the provision as affording

protection against “retaliation,” see also Lawson v.

FMR LLC, 571 U.S. 429, 433-434, 437, 441-444 (2014),

the operative statutory text does not contain the word

“retaliation.” Nor does it use the term “intentional retaliation.” The settled elements of the complainant’s

burden of proof under the WPA, and Sections 42121 and

1514A, require proof only that the employer had

knowledge of the employee’s protected activity, and that

the protected activity was a contributing factor in the

employer’s action. See p. 16, supra.

Animus or hostility to the employee’ protected activity may often be one of the reasons that the employer

fired the employee or otherwise subjected him to adverse treatment. But it does not follow that Section

1514A’s broad prohibition against disparate treatment

because of protected activity is limited only to actions

taken with that sort of retaliatory intent, or that a complainant must carry what would often be the different

burden of actually proving that the employer acted with

that intent.

Respondents’ observation that “[i]ntentional torts

. . . generally require that the actor intend the consequences of an act,” Br. in Opp. 16 (quoting Staub v.

Proctor Hosp., 562 U.S. 411, 417 (2011)), is similarly

misplaced. That principle is relevant where (as in

Staub) a plaintiff relies on a statute that prohibits certain employment actions taken with discriminatory intent to hold an employer liable for an action taken by a

second-level supervisor who lacked any discriminatory

“animus” but who based her decision on a report by a

first-line supervisor who acted with such animus. 562

U.S. at 417-418. Staub teaches that an employer may

be held liable under those circumstances if, inter alia,

“the adverse action [there, termination] is the intended

consequence of [the first-line supervisor’s] discriminatory conduct,” even though the first-line supervisor’s

conduct (an unfavorable report) is not itself unlawful.

Id. at 419, 422 (emphases added). But there is no

question here that respondent intended to terminate

petitioner. The question in this case—which Staub’s

intentional-tort discussion does not inform—is whether

the jury, which found that petitioner’s protected activity was a “contributing factor” in his termination, also

had to find that respondent acted at least in part with

retaliatory intent.

2. Section 1514A’s burden-shifting framework in any

event would impose a legal presumption of retaliatory intent when the “contributing factor” test is met

If Section 1514A(a) were nevertheless read to prohibit an unfavorable personnel action only if it is motivated by retaliatory intent in the sense respondents apparently mean—i.e., prejudice or animus—then the

burden-shifting provisions under Section 1514A(b)

would properly be understood to impose a legal presumption of retaliatory intent where a whistleblower

has demonstrated that protected activity of which the

employer had knowledge was a “contributing factor” in

the personnel action.

The parties—like the court of appeals—correctly

agree that, under 49 U.S.C. 42121(b)(2)(B)(iii), there

are four “elements” of a Section 1514A claim: (1) protected behavior (whistleblowing), (2) the employer’s

knowledge of that behavior; (3) an unfavorable personnel action; and (4) proof that the protected activity was

a “contributing factor” in that action. Pet. App. 10a; see

p. 16, supra (citing briefs). And as explained above, the

“contributing factor” test does not require proof of retaliatory intent.

It follows that, even if Section 1514A(a) were interpreted to prohibit only unfavorable personnel actions

motivated by “retaliatory intent” in the sense respondents apparently mean, the adjudicatory process that

Congress prescribed for alleged Section 1514A(a) violations would still not require actual proof of such intent.

Rather, that process would in effect require courts and

agencies adjudicating such claims “to presume retaliatory intent from the facts and circumstances,” 135

Cong. Rec. at 5037 (Rep. Schroder), where the employer

had knowledge of the employee’s protected conduct and

that conduct was a contributing factor in the adverse

treatment. Such a legal presumption would reflect the

judgment that “it is unrealistic to expect the whistleblower * * * to demonstrate improper motive,” ibid.,

and that the most appropriate way to limit employer liability in this context is to require that the employer

demonstrate, by “clear and convincing evidence,” that it

“would have taken the same unfavorable personnel action in the absence of [the protected] behavior,” 49

U.S.C. 42121(b)(2)(B)(iv).

C. The Secretary’s Interpretation Of Section 1514A Is

Entitled To Deference

The conclusion that Section 1514A does not require

proof of retaliatory intent reflects the best interpretation of the statutory text and context. And in any event,

DOL’s reasonable adjudicatory interpretation of Section 1514A is entitled to deference under Chevron

U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837 (1984).6

This Court has granted certiorari in Loper Bright Enterprises

v. Raimondo, No. 22-451 (May 1, 2023), to consider whether to

“overrule Chevron” or limit its application in certain cases involving

statutory “silence.” The Court’s resolution of that question should

1. In adjudicating whistleblower claims under Section 1514A, the ARB has long held that “[n]othing in

Section [1514A] requires a showing of retaliatory intent.” Menendez v. Halliburton, Inc., Nos. 09-2, 09-3,

2011 WL 4915750, at *20 (ARB Sept. 13, 2011). Focusing on Section 1514A’s burden-shifting framework for

adjudication, the ARB “adopted the definition of ‘contributing factor’ stated [by the Federal Circuit] in

Marano” in the WPA context in 1993 and applied it to

the same “contributing factor” burden-shifting language governing Section 1514A claims. Id. at *20 n.173.

The ARB likewise adopted Marano’s conclusion that a

“whistleblower need not demonstrate the existence of a

retaliatory motive,” ibid. (quoting Marano, 2 F.3d at

1141), and therefore determined that, under Section

1514A, “[p]roof of ‘retaliatory motive’ is not necessary”

to establish that “protected activity was a contributing

factor to * * * adverse actions,” id. at *18, *20. The

Fifth Circuit upheld that interpretation on review of a

subsequent decision in the same case, reasoning that

Section 1514A “contains the same ‘contributing factor’

test” as the WPA’s whistleblower provisions and that

Marano had decades earlier construed that “contributing factor” test as not requiring any proof of “ ‘retaliatory motive.’ ” Halliburton, Inc. v. ARB, 771 F.3d 254,

263 & n.8 (2014) (per curiam) (citation omitted). 7

not affect the outcome here: This case does not involve the sort of

statutory silence that the petitioner in Loper Bright contends is present in that case, and DOL’s interpretation is in any event the best

reading of Section 1514A.

In the court of appeals, respondents cited (Resps. C.A. Reply

Br. 20) Klopfenstein v. PCC Flow Technologies Holdings, Inc., No.

04-149, 2006 WL 3246904 (May 31, 2006), for the proposition that

the ARB has taken inconsistent positions because it previously interpreted Section 1514A to require a whistleblower to prove a retal-

2. The ARB’s interpretation of Section 1514A is entitled to Chevron deference. Congress has directed

DOL to enforce Section 1514A through its adjudication

of whistleblower complaints. 18 U.S.C. 1514A(b). That

direction necessarily includes authority to “speak with

the force of law” in a “formal adjudication.” United

States v. Mead Corp., 533 U.S. 218, 229-230 & n.12

(2001). As a result, to the extent the statutory text is

ambiguous, the ARB’s reasonable interpretation, rendered “in the context of formal adjudication,” is “entitled to deference.” SEC v. Zandford, 535 U.S. 813, 819820 (2002).

This Court in Lawson emphasized the “lead role

played by DOL in administering whistleblower statutes” but did not decide what weight should be given to

an ARB interpretation of Section 1514A. Lawson, 571

U.S. at 439 n.6. Three Justices in dissent concluded that

the ARB was not the correct governmental component

entitled to Chevron deference on the interpretive issue

there, given that Congress generally delegated to the

SEC (not DOL) authority to promulgate rules and regulations implementing the Sarbanes-Oxley Act; DOL’s

Secretary has delegated “any policymaking authority

[she] may have” to OSHA, not the ARB; and Section

iatory motive. But respondents misread that decision. In Klopfenstein, the complainant’s factual theory was that his “protected activity was a contributing factor because [a company official] had discriminatory animus against [him] based on [his whistleblowing].”

Id. at *6; see id. at *13-*14. The ARB observed that the “ultimate

question whether an action was taken due to ‘retaliatory motive is a

legal conclusion.’ ” Id. at *14 (citation omitted). But the ARB did

not hold that Section 1514A requires proof of a retaliatory motive in

other circumstances—including those where the complainant can

establish that his protected activity was a contributing factor based

on other evidence.

1514A in certain contexts allows district courts to adjudicate Section 1514A actions “de novo.” Id. at 476-478

(Sotomayor, J., dissenting). This case, however, involves a different Section 1514A question concerning

the interpretation of statutory burdens of proof applied

directly in an agency adjudication that falls squarely

under the ARB’s authority.

Congress has directed that DOL adjudicate Section

1514A complaints using the “rules and procedures set

forth in [S]ection 42121(b),” 18 U.S.C. 1514A(b)(2)(A),

that apply the “contributing factor” test at issue in this

case. See p. 9, supra. In the absence of the Secretary’s

discretionary review and any pertinent regulations, the

ARB is the final DOL authority on the interpretation of

that adjudicatory test. See 29 C.F.R. 1980.110(c)-(e).

And while district courts may also adjudicate certain

whistleblower claims if the agency has not issued a decision within 180 days, 18 U.S.C. 1514A(b)(1)(B), Congress directed those courts to apply “the legal burdens

of proof set forth in [S]ection 42121(b)” that by their

terms apply only in the administrative proceedings. 18

U.S.C. 1514A(b)(2)(C); see pp. 9-10 & n.4, supra. Deference to the ARB’s interpretation is therefore warranted.

3. The ARB’s interpretation of Section 1514A is consistent with the ARB’s longstanding interpretation of

analogous contributing-factor language in non-Section

1514A statutes. And any surface tension reflected by

the ARB’s current position in the railroad-safety whistleblower context does not reflect a significant substantive difference and does not alter the deference owed to

the ARB’s position that a plaintiff need not prove retaliatory animus or intent.

Until November 2019, in non-Section 1514A whistleblower contexts governed by the same type of statutory

“contributing factor” burden-shifting framework, the

ARB had consistently and “repeatedly held” that, under

the “ ‘contributing factor’ ” test, “an employee need not

prove retaliatory animus, or motivation or intent, to

prove that his protected activity contributed to the adverse employment action.” Rathburn v. Belt Ry., No.

16‐36, 2017 WL 6572154, at *5 & n.42 (Dec. 8, 2017)

(claim under 49 U.S.C. 20109(d); citing decisions); accord, e.g., Beatty v. Celadon Trucking Servs., Nos. 15‐

85, 15‐86, 2017 WL 6572143, at *6 (ARB Dec. 8, 2017)

(claim under 49 U.S.C. 31105(b)). Even after the Eighth

Circuit disagreed with that interpretation in Kuduk v.

BNSF Ry., 768 F.3d 786 (2014), the ARB adhered to its

longstanding interpretation. E.g., Brough v. BNSF

Ry., No. 2016‐89, 2019 WL 3293916, at *6 (June 12,

2019), aff ’d, Nos. 19‐71983, 20‐70655, 2021 WL 5905721,

at *1 (9th Cir. Dec. 14, 2021).

In November 2019, shortly after oral argument in

the Eighth Circuit on a petition for review of an ARB

decision that had criticized the Eighth Circuit’s position, see Riley v. Dakota, Minn. & E. R.R., Nos. 16‐10,

16‐52, 2018 WL 6978216, at *4 & n.3 (July 6, 2018), rev’d,

948 F.3d 940, 945-947 (8th Cir. 2020), the ARB articulated a different approach in the context of a railroadsafety whistleblower claim under 49 U.S.C. 20109(d).

Thorstenson v. BNSF Ry., Nos. 2018‐59, 2018‐60, 2019

WL 7042958, at *5-*6 (Nov. 25, 2019) (per curiam). The

ARB nominally adopted the Eighth Circuit’s position

that an employee must prove “intentional retaliation

prompted by [protected whistleblowing].” Id. at *5

(quoting Kuduk, 768 F.3d at 791). But that acquiescence was limited, because the ARB ruled that a

whistleblower “need not prove a retaliatory motive beyond showing that the employee’s protected activity

was a contributing factor in the adverse action.” Ibid.

(emphases added); accord Yowell v. Fort Worth & W.

R.R., No. 2019‐39, 2020 WL 3971213, at *4 (ARB Feb.

5, 2020) (per curiam) (Section 20109(d) claim), aff ’d, 993

F.3d 418 (5th Cir. 2021).

In so ruling, the ARB effectively adopted the view

that a legal presumption of retaliatory intent will arise

if a whistleblower demonstrates that his protected activity was a “contributing factor” in the adverse action.

See pp. 28-29, supra (discussing legal presumption). As

a result, any tension between the ARB’s Section 1514A

precedent and those recent railroad-safety-whistleblower

decisions is minimal because the ARB’s limited acquiescence in the face of appellate precedent has not fundamentally altered its adjudicatory approach. The ARB’s

decisions ultimately require proof only that a whistleblower’s protected activity was a “contributing factor”

in the adverse action. That interpretation is reasonable,

and it is entitled to deference.

CONCLUSION

The judgment of the court of appeals should be reversed and the case remanded for further proceedings.

Respectfully submitted.

SEEMA NANDA

Solicitor of Labor

JENNIFER S. BRAND

Associate Solicitor

MEGAN E. GUENTHER

Counsel for Whistleblower

Programs

JOSEPH E. ABBOUD

JESSE GRAUMAN

ANNE W. KING

Attorneys

Department of Labor

MEGAN BARBERO

General Counsel

MICHAEL A. CONLEY

Solicitor

THOMAS J. KARR

Assistant General Counsel

Securities and Exchange

Commission

JULY 2023

ELIZABETH B. PRELOGAR

Solicitor General

EDWIN S. KNEEDLER

Deputy Solicitor General

ANTHONY A. YANG

Assistant to the Solicitor

General

APPENDIX

TABLE OF CONTENTS

Page

Statutory provisions:

5 U.S.C. 1221 ................................................................... 1a

5 U.S.C. 2302 ................................................................... 4a

18 U.S.C. 1514A ............................................................... 9a

49 U.S.C. 42121 (2018 & Supp. III 2021) ...................... 12a

5 U.S.C. 1221 provides in pertinent part:

Individual right of action in certain reprisal cases

(a) Subject to the provisions of subsection (b) of this

section and subsection 1214(a)(3), an employee, former

employee, or applicant for employment may, with respect to any personnel action taken, or proposed to be

taken, against such employee, former employee, or applicant for employment, as a result of a prohibited personnel practice described in section 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D), seek corrective action from the Merit Systems Protection Board.

(b) This section may not be construed to prohibit any

employee, former employee, or applicant for employment

from seeking corrective action from the Merit Systems

Protection Board before seeking corrective action from

the Special Counsel, if such employee, former employee, or applicant for employment has the right to appeal

directly to the Board under any law, rule, or regulation.

(c)(1) Any employee, former employee, or applicant

for employment seeking corrective action under subsection (a) may request that the Board order a stay of the

personnel action involved.

(2) Any stay requested under paragraph (1) shall

be granted within 10 calendar days (excluding Saturdays, Sundays, and legal holidays) after the date the

request is made, if the Board determines that such a

stay would be appropriate.

(3)(A) The Board shall allow any agency which

would be subject to a stay under this subsection to

comment to the Board on such stay request.

(1a)

(B) Except as provided in subparagraph (C), a

stay granted under this subsection shall remain in

effect for such period as the Board determines to

be appropriate.

under this subsection at any time, if the Board determines that such a modification or dissolution is

appropriate.

* * * * *

(e)(1) Subject to the provisions of paragraph (2), in

any case involving an alleged prohibited personnel practice as described under section 2302(b)(8) or section

2302(b)(9)(A)(i), (B), (C), or (D), the Board shall order

such corrective action as the Board considers appropriate if the employee, former employee, or applicant for

employment has demonstrated that a disclosure or protected activity described under section 2302(b)(8) or

section 2302(b)(9)(A)(i), (B), (C), or (D) was a contributing factor in the personnel action which was taken or

is to be taken against such employee, former employee,

or applicant. The employee may demonstrate that the

disclosure or protected activity was a contributing factor in the personnel action through circumstantial evidence, such as evidence that—

(A) the official taking the personnel action

knew of the disclosure or protected activity; and

(B) the personnel action occurred within a period of time such that a reasonable person could

conclude that the disclosure or protected activity

was a contributing factor in the personnel action.

(2) Corrective action under paragraph (1) may not

be ordered if, after a finding that a protected disclo-

sure was a contributing factor, the agency demonstrates by clear and convincing evidence that it would

have taken the same personnel action in the absence

of such disclosure.

* * * * *

(g)(1)(A) If the Board orders corrective action under this section, such corrective action may include—

(i) that the individual be placed, as nearly as

possible, in the position the individual would

have been in had the prohibited personnel practice not occurred; and

(ii) back pay and related benefits, medical

costs incurred, travel expenses, any other reasonable and foreseeable consequential damages,

and compensatory damages (including interest,

reasonable expert witness fees, and costs).

(B) Corrective action shall include attorney’s

fees and costs as provided for under paragraphs

(2) and (3).

(2) If an employee, former employee, or applicant for employment is the prevailing party before

the Merit Systems Protection Board, and the decision is based on a finding of a prohibited personnel

practice, the agency involved shall be liable to the

employee, former employee, or applicant for reasonable attorney’s fees and any other reasonable costs

incurred.

(3) If an employee, former emloyee, 1 or applicant

for employment is the prevailing party in an appeal

So in original. Probably should be ‘‘employee,’’.

from the Merit Systems Protection Board, the agency involved shall be liable to the employee, former

employee, or applicant for reasonable attorney’s fees

and any other reasonable costs incurred, regardless

of the basis of the decision.

(4) Any corrective action ordered under this section to correct a prohibited personnel practice may

include fees, costs, or damages reasonably incurred

due to an agency investigation of the employee, if such

investigation was commenced, expanded, or extended in retaliation for the disclosure or protected activity that formed the basis of the corrective action.

(h)(1) An employee, former employee, or applicant

for employment adversely affected or aggrieved by a final order or decision of the Board under this section

may obtain judicial review of the order or decision.

(2) A petition for review under this subsection

shall be filed with such court, and within such time,

as provided for under section 7703(b).

* * * * *

5 U.S.C. 2302 provides in pertinent part:

Prohibited personnel practices

(a)(1) For the purpose of this title, ‘‘prohibited personnel practice’’ means any action described in subsection (b).

(2) For the purpose of this section—

(A) ‘‘personnel action’’ means—

(i)

an appointment;

(ii)

a promotion;

(iii) an action under chapter 75 of this title

or other disciplinary or corrective action;

(iv)

a detail, transfer, or reassignment;

(v)

a reinstatement;

(vi)

a restoration;

(vii) a reemployment;

(viii) a performance evaluation under chapter 43 of this title or under title 38;

(ix) a decision concerning pay, benefits, or

awards, or concerning education or training if

the education or training may reasonably be expected to lead to an appointment, promotion,

performance evaluation, or other action described in this subparagraph;

(x) a decision to order psychiatric testing

or examination;

(xi) the implementation or enforcement of

any nondisclosure policy, form, or agreement;

and

(xii) any other significant change in duties,

responsibilities, or working conditions;

with respect to an employee in, or applicant for, a

covered position in an agency, and in the case of

an alleged prohibited personnel practice described

in subsection (b)(8), an employee or applicant for

employment in a Government corporation as defined in section 9101 of title 31;

* * * * *

(b) Any employee who has authority to take, direct

others to take, recommend, or approve any personnel

action, shall not, with respect to such authority—

* * * * *

(8) take or fail to take, or threaten to take or fail

to take, a personnel action with respect to any employee or applicant for employment because of—

(A) any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences—

(i) any violation of any law, rule, or regulation, or

(ii) gross mismanagement, a gross waste of

funds, an abuse of authority, or a substantial

and specific danger to public health or safety,

if such disclosure is not specifically prohibited by

law and if such information is not specifically required by Executive order to be kept secret in the

interest of national defense or the conduct of foreign affairs;

(B) any disclosure to the Special Counsel, or to

the Inspector General of an agency or another

employee designated by the head of the agency

to receive such disclosures, of information which

the employee or applicant reasonably believes

evidences—

(i) any violation (other than a violation of

this section) of any law, rule, or regulation, or

(ii) gross mismanagement, a gross waste of

funds, an abuse of authority, or a substantial

and specific danger to public health or safety;

committee of Congress) by any employee of an

agency or applicant for employment at an agency

of information described in subparagraph (B) that

is—

(i) not classified; or

(ii) if classified—

(I) has been classified by the head of an

agency that is not an element of the intelligence community (as defined by section 3 of

the National Security Act of 1947 (50 U.S.C.

3003)); and

(II) does not reveal intelligence sources

and methods. 1

* * * * *

This subsection shall not be construed to authorize the

withholding of information from Congress or the taking

of any personnel action against an employee who discloses information to Congress. For purposes of paragraph (8), (i) any presumption relating to the performance of a duty by an employee whose conduct is the

subject of a disclosure as defined under subsection

(a)(2)(D) may be rebutted by substantial evidence, and

(ii) a determination as to whether an employee or applicant reasonably believes that such employee or applicant has disclosed information that evidences any violation of law, rule, regulation, gross mismanagement, a

So in original. The period probably should be a semicolon.

gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety

shall be made by determining whether a disinterested

observer with knowledge of the essential facts known to

and readily ascertainable by the employee or applicant

could reasonably conclude that the actions of the Government evidence such violations, mismanagement,

waste, abuse, or danger.

* * * * *

(f )(1) A disclosure shall not be excluded from subsection (b)(8) because—

(A) the disclosure was made to a supervisor or

to a person who participated in an activity that the

employee or applicant reasonably believed to be

covered by subsection (b)(8)(A)(i) and (ii);

(B) the disclosure revealed information that

had been previously disclosed;

making the disclosure;

(D) the disclosure was not made in writing;

(E) the disclosure was made while the employee was off duty;

(F) the disclosure was made before the date on

which the individual was appointed or applied for

appointment to a position; or

(G) of the amount of time which has passed

since the occurrence of the events described in the

disclosure.

(2) If a disclosure is made during the normal

course of duties of an employee, the principal job func-

tion of whom is to regularly investigate and disclose

wrongdoing (referred to in this paragraph as the ‘‘disclosing employee’’), the disclosure shall not be excluded from subsection (b)(8) if the disclosing employee demonstrates that an employee who has the

authority to take, direct other individuals to take, recommend, or approve any personnel action with respect

to the disclosing employee took, failed to take, or

threatened to take or fail to take a personnel action

with respect to the disclosing employee in reprisal

for the disclosure made by the disclosing employee.

18 U.S.C. 1514A provides in pertinent part:

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), 1 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

So in original. Another closing parenthesis probably should precede the comma.

10a

an employee in the terms and conditions of employment

because of any lawful act done by the employee—

(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, 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—

(A) a Federal regulatory or law enforcement

agency;

(B) any Member of Congress or any committee

of Congress; or

the employee (or such other person working for

the employer who has the authority to investigate, discover, or terminate misconduct); or

(2) to file, cause to be filed, testify, participate in,

or otherwise assist in a proceeding filed or about to

be filed (with any knowledge of the employer) relating to an alleged violation of section 1341, 1343, 1344,

or 1348, any rule or regulation of the Securities and

Exchange Commission, or any provision of Federal

law relating to fraud against shareholders.

(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—

11a

(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.

(2) PROCEDURE.—

(A) IN GENERAL.—An action under paragraph

(1)(A) shall be governed under the rules and procedures set forth in section 42121(b) of title 49,

United States Code.

(B) EXCEPTION.—Notification made under

section 42121(b)(1) of title 49, United States Code,

shall be made to the person named in the complaint and to the employer.

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.

(D) STATUTE OF LIMITATIONS .—An action under paragraph (1) shall be commenced not later

than 180 days after the date on which the violation

occurs, or after the date on which the employee

became aware of the violation.

(E) JURY TRIAL.—A party to an action brought

under paragraph (1)(B) shall be entitled to trial

by jury.

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(1) IN GENERAL.—An employee prevailing in any

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

relief necessary to make the employee whole.

(2) COMPENSATORY DAMAGES .—Relief for any

action under paragraph (1) shall include—

(A) reinstatement with the same seniority status that the employee would have had, but for the

discrimination;

(B) the amount of back pay, with interest; and

litigation costs, expert witness fees, and reasonable attorney fees.

* * * * *

49 U.S.C. 42121 (2018 & Supp. III 2021) provides:

Protection of employees providing air safety information

(a) PROHIBITED DISCRIMINATION.—A holder of a

certificate under section 44704 or 44705 of this title, or

a contractor, subcontractor, or supplier of such holder,

may not discharge an employee or otherwise discriminate against an employee with respect to compensation,

terms, conditions, or privileges of employment because

the employee (or any person acting pursuant to a request of the employee)—

(1) provided, caused to be provided, or is about to

provide (with any knowledge of the employer) or cause

to be provided to the employer or Federal Government information relating to any violation or alleged

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violation of any order, regulation, or standard of the

Federal Aviation Administration or any other provision of Federal law relating to aviation safety under

this subtitle or any other law of the United States;

(2) has filed, caused to be filed, or is about to file

(with any knowledge of the employer) or cause to be

filed a proceeding relating to any violation or alleged

violation of any order, regulation, or standard of the

Federal Aviation Administration or any other provision of Federal law relating to aviation safety under

this subtitle or any other law of the United States;

(3) testified or is about to testify in such a proceeding; or

(4) assisted or participated or is about to assist

or participate in such a proceeding.

—

(b) DEPARTMENT OF LABOR COMPLAINT PROCEDURE.

(1) FILING AND NOTIFICATION.—A person who

believes that he or she has been discharged or otherwise discriminated against by any person in violation

of subsection (a) may, not later than 90 days after the

date on which such violation occurs, file (or have any

person file on his or her behalf ) a complaint with the

Secretary of Labor alleging such discharge or discrimination. Upon receipt of such a complaint, the

Secretary of Labor shall notify, in writing, the person named in the complaint and the Administrator of

the Federal Aviation Administration of the filing of

the complaint, of the allegations contained in the

complaint, of the substance of evidence supporting

the complaint, and of the opportunities that will be

afforded to such person under paragraph (2).

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(2) INVESTIGATION ; PRELIMINARY ORDER .—

(A) IN GENERAL.—Not later than 60 days after

the date of receipt of a complaint filed under paragraph (1) and after affording the person named

in the complaint an opportunity to submit to the

Secretary of Labor a written response to the complaint and an opportunity to meet with a representative of the Secretary to present statements

from witnesses, the Secretary of Labor shall conduct an investigation and determine whether there

is reasonable cause to believe that the complaint

has merit and notify, in writing, the complainant

and the person alleged to have committed a violation of subsection (a) of the Secretary’s findings.

If the Secretary of Labor concludes that there is

a reasonable cause to believe that a violation of subsection (a) has occurred, the Secretary shall accompany the Secretary’s findings with a preliminary

order providing the relief prescribed by paragraph

(3)(B). Not later than 30 days after the date of

notification of findings under this paragraph, either the person alleged to have committed the violation or the complainant may file objections to

the findings or preliminary order, or both, and request a hearing on the record. The filing of such

objections shall not operate to stay any reinstatement remedy contained in the preliminary order.

Such hearings shall be conducted expeditiously. If

a hearing is not requested in such 30-day period,

the preliminary order shall be deemed a final order that is not subject to judicial review.

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(B) REQUIREMENTS.—

(i) REQUIRED SHOWING BY COMPLAINANT .—

The Secretary of Labor shall dismiss a complaint

filed under this subsection and shall not conduct

an investigation otherwise required under subparagraph (A) unless the complainant 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.

(ii) SHOWING BY EMPLOYER.—Notwithstanding a finding by the Secretary that the complainant has made the showing required under

clause (i), no investigation otherwise required

under subparagraph (A) shall be conducted 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.

(iii) CRITERIA FOR DETERMINATION BY

SECRETARY.—The Secretary may determine that

a violation of subsection (a) has occurred only if

the complainant demonstrates 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.

(iv) PROHIBITION.—Relief may not be ordered under subparagraph (A) 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.

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(3) FINAL ORDER.—

(A) DEADLINE FOR ISSUANCE ; SETTLEMENT

AGREEMENTS .—Not later than 120 days after the

date of conclusion of a hearing under paragraph

(2), the Secretary of Labor shall issue a final order providing the relief prescribed by this paragraph or denying the complaint. At any time before issuance of a final order, a proceeding under

this subsection may be terminated on the basis of

a settlement agreement entered into by the Secretary of Labor, the complainant, and the person

alleged to have committed the violation.

(B) REMEDY.—If, in response to a complaint

filed under paragraph (1), the Secretary of Labor

determines that a violation of subsection (a) has

occurred, the Secretary of Labor shall order the

person who committed such violation to—

(i) take affirmative action to abate the violation;

(ii) reinstate the complainant to his or her

former position together with the compensation

(including back pay) and restore the terms, conditions, and privileges associated with his or her

employment; and

(iii) provide compensatory damages to the

complainant.

If such an order is issued under this paragraph,

the Secretary of Labor, at the request of the complainant, shall assess against the person against

whom the order is issued a sum equal to the aggregate amount of all costs and expenses (including attorneys’ and expert witness fees) reason-

17a

ably incurred, as determined by the Secretary of

Labor, by the complainant for, or in connection

with, the bringing the complaint upon which the

order was issued.

(C) FRIVOLOUS COMPLAINTS .—If the Secretary of Labor finds that a complaint under paragraph (1) is frivolous or has been brought in bad

faith, the Secretary of Labor may award to the

prevailing employer a reasonable attorney’s fee

not exceeding $1,000.

(4) REVIEW.—

(A) APPEAL TO COURT OF APPEALS .—Any person adversely affected or aggrieved by an order

issued under paragraph (3) may obtain review of

the order in the United States Court of Appeals

for the circuit in which the violation, with respect

to which the order was issued, allegedly occurred

or the circuit in which the complainant resided on

the date of such violation. The petition for review

must be filed not later than 60 days after the date

of the issuance of the final order of the Secretary

of Labor. Review shall conform to chapter 7 of

title 5, United States Code. The commencement

of proceedings under this subparagraph shall not,

unless ordered by the court, operate as a stay of

the order.

(B) LIMITATION ON COLLATERAL ATTACK .—An

order of the Secretary of Labor with respect to

which review could have been obtained under subparagraph (A) shall not be subject to judicial review in any criminal or other civil proceeding.

18a

(5) ENFORCEMENT OF ORDER BY SECRETARY OF

LABOR .—Whenever any person has failed to comply

with an order issued under paragraph (3), the Secretary of Labor may file a civil action in the United

States district court for the district in which the violation was found to occur to enforce such order. In

actions brought under this paragraph, the district

courts shall have jurisdiction to grant all appropriate

relief including, but not limited to, injunctive relief

and compensatory damages.

(6) ENFORCEMENT OF ORDER BY PARTIES .—

(A) COMMENCEMENT OF ACTION .—A person

on whose behalf an order was issued under paragraph (3) may commence a civil action against the

person to whom such order was issued to require

compliance with such order. The appropriate

United States district court shall have jurisdiction, without regard to the amount in controversy

or the citizenship of the parties, to enforce such

order.

(B) ATTORNEY FEES.—The court, in issuing

any final order under this paragraph, may award

costs of litigation (including reasonable attorney

and expert witness fees) to any party whenever

the court determines such award is appropriate.

(c) MANDAMUS.—Any nondiscretionary duty imposed by this section shall be enforceable in a mandamus proceeding brought under section 1361 of title 28,

United States Code.

(d) NONAPPLICABILITY TO DELIBERATE VIOLATIONS.

—Subsection (a) shall not apply with respect to an employee of a holder of a certificate issued under section

19a

44704 or 44705, or a contractor or subcontractor thereof, who, acting without direction from such certificateholder, contractor, or subcontractor (or such person’s

agent), deliberately causes a violation of any requirement relating to aviation safety under this subtitle or

any other law of the United States.

(e) CONTRACTOR DEFINED.—In this section, the

term ‘‘contractor’’ means—

(1) a person that performs safety-sensitive functions by contract for an air carrier or commercial operator; or

(2) a person that performs safety-sensitive functions related to the design or production of an aircraft, aircraft engine, propeller, appliance, or component thereof by contract for a holder of a certificate

issued under section 44704.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.