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

No. 22-660

In The

Supreme Court of the United States

____________________________________

TREVOR MURRAY,

Petitioner,

v.

UBS SECURITIES, LLC AND UBS AG,

Respondents.

____________________________________

On Writ of Certiorari to the United States Court of

Appeals for the Second Circuit

____________________________________

BRIEF OF AMICUS CURIAE

ACADEMY OF RAIL LABOR ATTORNEYS

IN SUPPORT OF PETITIONER

____________________________________

Colin Reeves

APOLLO LAW LLC

1000 Dean Street

Suite 101

Brooklyn, NY 11238

Adam W. Hansen

Counsel of Record

APOLLO LAW LLC

333 Washington Ave. N., Suite 300

Minneapolis, MN 55401

(612) 927-2969

adam@apollo-law.com

Attorneys for Amicus Curiae

i

TABLE OF CONTENTS

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

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

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT ............................................................... 4

I.

The FRSA, SOX, and More Than a Dozen

Other Statutes Use the Same Two-Part

Burden-Shifting

Framework

for

Whistleblower Claims .......................................... 4

II. The FRSA’s Enactment and Amendments

Demonstrate Congress’s Aim to Protect the

Public Interest by Encouraging Disclosure of

Safety and Injury Concerns ................................. 8

III. The Text, Structure, History, and Purpose of

the FRSA and Other Statutes that Use the

Contributing-Factor Framework Show that

Employees Need Not Prove Retaliatory

Intent .................................................................. 15

IV. The Second Circuit Ignored the Plain Text of

SOX and Other Statutes that Use the

Contributing-Factor Framework ....................... 21

CONCLUSION .......................................................... 27

ii

TABLE OF AUTHORITIES

CASES

Araujo v. N.J. Transit Rail Ops., Inc.,

708 F.3d 152 (3d Cir. 2013)...................... 7, 12, 14

Armstrong v. BNSF Ry. Co.,

880 F.3d 377 (7th Cir. 2018) .................. 14, 22, 26

Babb v. Wilkie,

140 S. Ct. 1168 (2020) ........................................ 23

Bostock v. Clayton Cty.,

140 S. Ct. 1731 (2020) ........................................ 23

Commc’ns Workers of Am. v. Beck,

487 U.S. 735 (1988) .......................................... 7–8

Consol. Rail Corp. v. Gottshall,

512 U.S. 532 (1994) .............................................. 9

Consol. Rail Corp. v. United Transp. Union,

947 F. Supp. 168 (E.D. Pa. 1996) ....................... 10

CSX Transp., Inc. v. McBride,

564 U.S. 685 (2011) .......................................... 8–9

E.E.O.C. v. Abercrombie & Fitch Stores, Inc.,

575 U.S. 768 (2015) ...................................... 22, 27

Fed. Express Corp. v. Holowecki,

552 U.S. 389 (2008) ...................................... 25–26

Frost v. BNSF Ry. Co.,

914 F.3d 1189 (9th Cir. 2019) ............................ 14

Garcia-Ayala v. Lederle Parenterals, Inc.,

212 F.3d 638 (1st Cir. 2000)............................... 24

Gross v. FBL Fin. Servs., Inc.,

557 U.S. 167 (2009) ...................................... 25–26

iii

Guam v. United States,

141 S. Ct. 1608 (2021) ........................................ 22

Halliburton, Inc. v. Admin. Review Bd.,

771 F.3d 254 (5th Cir. 2014) (per curiam) ........... 7

Jackson v. Birmingham Bd. of Educ.,

544 U.S. 167 (2005) ............................................ 23

K Mart Corp. v. Cartier, Inc.,

486 U.S. 281 (1988) ............................................ 15

Kuduk v. BNSF Ry. Co.,

768 F.3d 786 (8th Cir. 2014) .................. 14–15, 22

Lawson v. FMR LLC,

571 U.S. 429 (2014) ...................... 7, 16–17, 20–21

Lorillard v. Pons,

434 U.S. 575 (1978) ............................................ 18

Mallory v. Norfolk S. Ry. Co.,

No. 21-1168 (2023) ............................................. 19

Marano v. Dep’t of Justice,

2 F.3d 1137 (Fed. Cir. 1993) ................ 5–6, 18, 27

Menendez v. Halliburton, Inc.,

2011 WL 4915750 (A.R.B. Sept. 13, 2011) .. 18–19

Meritor Sav. Bank v. Vinson,

477 U.S. 57 (1986) .............................................. 23

Pan Am Rys., Inc. v. U.S. Dep’t of Labor,

855 F.3d 29 (1st Cir. 2017)........................... 11, 13

Petersen v. Union Pac. R.R. Co.,

2014 WL 6850019 (A.R.B. Nov. 20, 2014) ......... 14

Russell v. Dep’t of Justice,

76 M.S.P.R. 317 (M.S.P.B. 1997) ....................... 18

Smith-Bunge v. Wis. Cent., Ltd.,

60 F. Supp. 3d 1034 (D. Minn. 2014) ................. 12

iv

Staub v. Proctor Hosp.,

562 U.S. 411 (2011) ............................................ 27

Tamosaitis v. URS Inc.,

781 F.3d 468 (9th Cir. 2015) .............................. 17

Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive

Cmtys. Project, Inc.,

576 U.S. 519 (2015) ............................................ 23

Tompkins v. Metro-N. Commuter R.R. Co.,

938 F.3d 74 (2d Cir. 2020)...................... 14, 22, 26

United Sav. Ass’n of Tex. v. Timbers of Inwood

Forest Assocs., Ltd.,

484 U.S. 365 (1988) ............................................ 15

US Airways, Inc. v. Barnett,

535 U.S. 391 (2002) ............................................ 24

Univ. of Tex. Sw. Med. Ctr. v. Nassar,

570 U.S. 338 (2013) ............................................ 25

Vega v. Hempstead Union Free Sch. Dist.,

801 F.3d 72 (2d Cir. 2015).................................. 26

Withers v. Johnson,

763 F.3d 998 (8th Cir. 2014) .............................. 24

STATUTES

5 U.S.C. § 1221 ............................................................ 4

5 U.S.C. § 2302 ............................................................ 4

6 U.S.C. § 1142 ............................................................ 7

12 U.S.C. § 5567 .......................................................... 7

15 U.S.C. § 7a-3 ........................................................... 7

15 U.S.C. § 2087 .......................................................... 7

18 U.S.C. § 1514A................ 6–7, 14, 16–17, 21–22, 24

v

21 U.S.C. § 399d .......................................................... 7

26 U.S.C. § 7623 .......................................................... 7

29 U.S.C. § 218c........................................................... 7

31 U.S.C. § 5323 .......................................................... 7

42 U.S.C. § 5851 .......................................................... 7

42 U.S.C. § 2000e-2 ................................................... 25

42 U.S.C. § 2000e-5 ................................................... 25

46 U.S.C. § 2114 .......................................................... 7

49 U.S.C. § 20109 ...................... 7–8, 10, 13–14, 16, 24

49 U.S.C. § 20901 ........................................................ 9

49 U.S.C. § 20903 ........................................................ 9

49 U.S.C. § 21302 ...................................................... 10

49 U.S.C. § 21304 ...................................................... 10

49 U.S.C. § 30171 ........................................................ 7

49 U.S.C. § 31105 ........................................................ 7

49 U.S.C. § 42121 ...... 2, 6–7, 14, 16–17, 22, 24–25, 27

49 U.S.C. § 60129 ........................................................ 7

Accident Reports Act of 1910, Pub. L. No. 165, 36

Stat. 350 (1910) .......................................................... 9

Federal Railroad Safety Act of 1970, Pub. L. No.

91-458, 84 Stat. 971 (1970) ........................................ 9

Federal Railroad Safety Authorization Act of

1980, Pub. L. No. 96-423, 94 Stat. 1811 (1980) ....... 10

Whistleblower Protection Act, Pub. L. No. 101-12,

103 Stat. 16 (1989) ..................................................... 4

vi

RULES AND REGULATIONS

29 § C.F.R. 1604.11 ................................................... 23

29 § C.F.R. 1980.104 ................................................. 16

29 § C.F.R. 1982.104 ................................................. 16

49 § C.F.R. 225.1 ................................................... 9–10

49 § C.F.R. 225.29 ..................................................... 10

49 § C.F.R. 225.31 ..................................................... 10

49 § C.F.R. 225.41 ....................................................... 9

Railroad Accident Reporting, 61 Fed. Reg. 30,940

(June 18, 1996) ............................................................ 9

LEGISLATIVE MATERIALS

The Impact of Railroad Injury, Accident, and

Discipline Policies on the Safety of America’s

Railroads: Hearing Before the H. Comm. on

Transp. & Infrastructure, 110th Cong. (Oct. 25,

2007)

........................................................................ 11–12, 19

H.R. Conf. Rep. No. 110-259 (2007), reprinted in

2007 U.S.C.C.A.N. 119 .............................................. 13

S. Rep. No. 100-413 (1988) ................................ 5–6, 17

S. Rep. No. 107-146 (2002) ........................................ 20

Statement of Joseph H. Boardman, Committee on

Transportation and Infrastructure, U.S. House of

Representatives, Oct. 25, 2007 ................................. 11

135 Cong. Rec. 5033 (1989) ................................... 5, 17

135 Cong. Rec. 5037 (1989) ......................................... 6

vii

OTHER AUTHORITIES

A. Scalia & B. Garner, Reading Law: The

Interpretation of Legal Texts (2012)...................... 8, 15

Occupational Safety & Health Admin., Employer

Safety Incentive and Disincentive Policies and

Practices (March 12, 2012) ....................................... 12

U.S. Gen. Accounting Office, GAO/RCED-89-109,

Railroad Safety: FRA Needs to Correct

Deficiencies in Reporting Injuries and Accidents

(April 1989) ......................................................... 10–11

1

INTEREST OF AMICUS CURIAE 1

Founded in 1990, the Academy of Rail Labor

Attorneys (“ARLA”) is a professional association of

attorneys who represent railroad workers in cases

brought under the Federal Employers’ Liability Act

and the Federal Railroad Safety Act (“FRSA”).

Through this work, ARLA promotes safe working

conditions and standards for railroad employees as

well as rail safety for the traveling public and the

communities through which trains travel.

ARLA’s members and the employees they

represent know the issue in this case well. As with

claims brought under the Sarbanes-Oxley Act of 2002

(“SOX”), FRSA whistleblower claims are governed by

the two-part contributing-factor burden-shifting

framework at issue in this case. The Second Circuit’s

conclusion that whistleblower-employees alleging

claims under this framework must prove retaliatory

intent is contrary to the plain text of these statutes.

The text and purpose of the FRSA—like that of SOX

and the more than a dozen other statutes that share

the contributing-factor framework—confirm that

employees need not prove retaliatory intent.

Given the parallel aims and language of these

statutes, the Court’s resolution of this case almost

certainly will determine intent’s role not just in SOX

claims, but in FRSA claims, too. ARLA submits this

brief, with a focus on how and why Congress adopted

the contributing-factor burden-shifting framework to

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

party, and no one other than amicus curiae or its counsel made

a monetary contribution to the preparation or submission of this

brief.

2

govern FRSA whistleblower causes of action, to assist

the Court in deciding the question presented.

SUMMARY OF ARGUMENT

The railways pose serious dangers to workers and

the public. As the eyes and ears of the rail industry,

railroad employees play a critical role in averting

these dangers and ensuring public safety. But deeply

entrenched railroad policies and practices often

silence workers and prevent them from reporting

injuries and safety concerns. And when that happens,

the consequences can be catastrophic.

Seeking to put an end to the intimidation and

retaliation that railroad workers who report

hazardous safety conditions regularly experience,

Congress incorporated the contributing-factor

framework into the FRSA—the whistleblower statute

that governs the railroad industry. More than a dozen

other federal statutes, including SOX, use the same

two-part burden-shifting framework. Under this

framework, whistleblower-plaintiffs can prevail if

they show that their protected activity was a

contributing factor in an adverse action, and if the

defendant fails to prove that it would have taken the

same adverse action absent the protected activity.

The text, structure, history, and purpose of the

FRSA, SOX, and other whistleblower statutes that

use the contributing-factor framework show that

plaintiffs are not required to prove retaliatory intent

as part of their case in chief. The plain language of the

statutes makes that clear: Plaintiffs must prove only

that their “[protected] behavior…was a contributing

factor in the unfavorable personnel action.” 49 U.S.C.

§ 42121(b)(2)(B)(iii). The statutes say nothing about

3

proving a causal nexus between the action and their

employer’s state of mind. Judicial decisions,

administrative opinions, and legislative history have

recognized for decades that omitting a proof-of-motive

requirement in statutes employing the contributingfactor standard was no oversight. That was Congress’s

express intent—a purpose that makes perfect sense

given that Congress’s overarching aim was protecting

the public interest by ensuring that workers could

freely report safety and fraud concerns. That’s a far

different concern than stamping out bias and

prejudice.

Like some courts that have decided that railroad

employees must prove retaliatory intent under the

FRSA, the Second Circuit held that whistleblowers

must make the same showing under SOX. In reaching

this conclusion, the Second Circuit disregarded the

plain text of the statute, focusing exclusively on SOX’s

general prohibition against retaliation and saying not

a single word about the provisions that precisely

specify what employees must show to prove a violation

of the statute. This acontextual analysis led the court

to adopt an extratextual requirement found nowhere

in the statute. Employees alleging claims under the

contributing-factor framework must prove only that

their protected activity was a contributing factor in an

adverse action—not that their employer intended to

retaliate against them for that activity.

4

ARGUMENT

I.

The FRSA, SOX, and More Than a Dozen

Other Statutes Use the Same Two-Part

Burden-Shifting

Framework

for

Whistleblower Claims.

This case concerns the proper interpretation of

the contributing-factor burden-shifting framework

that governs whistleblower actions brought under

SOX and more than a dozen other federal statutes.

Some history is necessary to tackle the question

before the Court. Congress first adopted the two-part

burden-shifting framework at issue in this case in the

Whistleblower Protection Act of 1989 (“WPA”). See

Pub. L. No. 101-12, 103 Stat. 16 (1989) (codified as

amended at 5 U.S.C. § 2302). Under the WPA, a civilservice employee must first show that her “protected

activity…was a contributing factor” in an adverse

“personnel action” taken by her agency employer. Id.

§ 3, sec. 1221(e)(1) (codified as amended at 5 U.S.C.

§ 1221(e)(1)). If she makes that showing, the burden

shifts to the employer to “demonstrate by clear and

convincing evidence that it would have taken the

same personnel action in the absence of” the protected

activity. Id. § 3, sec. 1221(e)(2) (codified as amended

at 5 U.S.C. § 1221(e)(2)).

The WPA amended the Civil Service Reform Act

of 1978, Pub. L. 95-454, § 101(a), 92 Stat. 1111 (Oct.

13, 1978) (“CSRA”). In the short time that the CSRA

had been on the books, courts had interpreted it to

require proof of two things from employees who

asserted that they had suffered an adverse action

after making a protected disclosure: first, that their

disclosure was a significant or motivating factor in

5

their employer’s action, and second, that that their

employer had taken that action with a retaliatory

motive or intent. See Marano v. Dep’t of Justice, 2 F.3d

1137, 1140–41 & n.3 (Fed. Cir. 1993) (citing cases); S.

Rep. No. 100-413, at 13–16 (1988) (discussing cases).

Recognizing that these decisions had “imposed”

an “excessively heavy burden” on whistleblowers,

Congress adopted the contributing-factor framework

in the WPA with the express intent of undoing these

features of the existing case law and of redefining

what a whistleblower had to prove. See Marano, 2

F.3d at 1140 (quoting 135 Cong. Rec. 5033 (1989)

(Explanatory Statement on sec. 20)). It did so in two

overarching ways.

First, by adopting the contributing-factor

standard, Congress substantially reduced the

employee’s burden to establish causation and

permitted her to prevail without showing that her

protected activity was a motivating factor, much less

a but-for cause, of the adverse action. The new

contributing-factor

standard

was

“specifically

intended to overrule existing case law, which requires

a whistleblower to prove that his protected conduct

was a ‘significant,’ ‘motivating,’ ‘substantial,’ or

‘predominant’ factor in a personnel action in order to

overturn that action.” Id. (quoting 135 Cong. Rec.

5033 (1989) (Explanatory Statement on sec. 20)).

Congress also specified the rule that would replace

these other causal standards: “[t]he words “a

contributing factor”…mean any factor which, alone or

in connection with other factors, tends to affect in any

way the outcome of the decision.” Id. (quoting 135

Cong. Rec. 5033 (1989) (Explanatory Statement on

sec. 20)).

6

Second, the contributing-factor framework

eliminated any need to show that the employer acted

with an improper state of mind. “[T]he word

‘contributing’ does not place any requirement on the

whistleblower…to

produce

evidence

proving

retaliatory motive on the part of the official proposing

or taking the personnel action.” 135 Cong. Rec. 5037

(1989) (remarks of Rep. Pat Schroeder); see Marano, 2

F.3d at 1141 (“Regardless of the official’s motives,

personnel actions against employees should quite

[simply] not be based on protected activities.”

(emphasis added; alteration in original) (quoting S.

Rep. No. 100-413, at 16 (1988))); S. Rep. No. 100-413,

at 15–16 (1988).

Congress has since employed the contributingfactor framework in more than a dozen statutes.

Congress used it in 2000 in the Wendell H. Ford

Aviation Investment and Reform Act for the 21st

Century, an aviation-safety statute known as “AIR21.” See 49 U.S.C. § 42121(b). Two years later,

Congress incorporated the AIR-21 provision into SOX.

18 U.S.C. § 1514A(b)(2). More than 10 other

statutes—including the FRSA—take the same

approach, either by expressly incorporating AIR-21’s

7

standard or by using identical contributing-factor

language. 2

Given the parallel aims and language of the

statutes that use the contributing-factor framework,

it’s common ground that they should be interpreted

consistently. See, e.g., Pet. App. at 11a-15a (relying on

FRSA case law and holding that because “[t]he

relevant statutory language of the SOX and the FRSA

is nearly identical,” the “articulations of the elements

of these claims of these claims must likewise be

consistent”); Lawson v. FMR LLC, 571 U.S. 429, 434,

457–59 (2014) (reading same term in AIR-21 and SOX

“to have similar import” given the “provisions’ parallel

text and purposes”); Halliburton, Inc. v. Admin.

Review Bd., 771 F.3d 254, 263 & n.8 (5th Cir. 2014)

(per curiam) (interpreting “‘contributing factor’ test”

in WPA and SOX to mean same thing); Araujo v. N.J.

Transit Rail Operations, Inc., 708 F.3d 152, 159 (3d

Cir. 2013) (construing the FRSA and the Energy

Reorganization Act “similarly…due to the history

surrounding their enactment”); see also Commc’ns

Workers of Am. v. Beck, 487 U.S. 735, 752–54 (1988)

2 See National Transit Systems Security Act, 6 U.S.C. § 1142;

Consumer Financial Protection Act, 12 U.S.C. § 5567; Criminal

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

Product Safety Improvement Act, 15 U.S.C. § 2087; SOX, 18

U.S.C. § 1514A; Food Safety Modernization Act, 21 U.S.C.

§ 399d; Taxpayer First Act, 26 U.S.C. § 7623; Patient Protection

and Affordable Care Act, 29 U.S.C. § 218c; Anti-Money

Laundering

Act,

31

U.S.C.

§ 5323(g)(3)(A);

Energy

Reorganization Act, 42 U.S.C. § 5851; Seaman’s Protection Act,

46 U.S.C. § 2114; FRSA, 49 U.S.C. § 20109; Moving Ahead for

Progress in the 21st Century Act, 49 U.S.C. § 30171; Surface

Transportation Assistance Act, 49 U.S.C. § 31105; AIR-21, 49

U.S.C. § 42121; Pipeline Safety Improvement Act, 49 U.S.C.

§ 60129.

8

(interpreting two provisions from different statutes

“in the same manner” “[g]iven the[ir] parallel purpose,

structure, and language”); A. Scalia & B. Garner,

Reading Law: The Interpretation of Legal Texts 252

(2012) (“Scalia & Garner”).

The Court’s decision in this case will therefore

establish the rules of the road not just for SOX cases,

but for the more than a dozen other federal statutes

that use the contributing-factor framework.

II. The FRSA’s Enactment and Amendments

Demonstrate Congress’s Aim to Protect the

Public Interest by Encouraging Disclosure

of Safety and Injury Concerns.

Railroads, railroad workers, and the members of

the public they serve are among those sure to be

affected by this case. Railroad workers receive

whistleblower protection through the FRSA. Like

SOX, the FRSA incorporates AIR-21’s contributingfactor burden-shifting framework. 49 U.S.C.

§ 20109(d)(2). The grave dangers that railroads pose

to workers and the public alike—dangers exacerbated

by a deep-rooted railroad management culture of

disciplining and intimidating workers who speak up

about safety and injury concerns—motivated

Congress to adopt the contributing-factor framework

in the FRSA, reducing the showing whistleblowers

need to make to prove causation and removing intent

from that showing altogether.

Some history again provides necessary context. A

pervasive lack of safety has been an enduring problem

for our nation’s railroads. The railroad business was

especially “hazardous at the dawn of the 20th

century.” CSX Transp., Inc. v. McBride, 564 U.S. 685,

9

691

(2011).

“[T]he

physical

dangers

of

railroading...resulted in the death or maiming of

thousands of workers every year.” Id. (second

alteration in original) (quoting Consol. Rail Corp. v.

Gottshall, 512 U.S. 532, 542 (1994)). Astonishingly,

railroad workers suffered more than 280,000

casualties “in the year 1908 alone.” Id.

In light of these extraordinary dangers, for more

than a century Congress has taken a keen interest in

improving railroad safety. Acquiring accurate and

complete information from railroad carriers has been

vital to Congress’s efforts to tackle the industry’s

safety problems. To that end, railroads have been

subject

to

accidentand

injury-reporting

requirements for more than 100 years. See Accident

Reports Act of 1910, Pub. L. No. 165, 36 Stat. 350

(recodified as amended at 49 U.S.C. §§ 20901–20903).

Building on the Accident Reports Act and other

railroad-safety laws passed in the early 20th century,

Congress enacted the FRSA in 1970 “to promote

safety in all areas of railroad operations and to reduce

railroad-related accidents, and to reduce deaths and

injuries to persons.” Federal Railroad Safety Act of

1970, Pub. L. No. 91-458, § 101, 84 Stat. 971, 971

(codified as amended at 49 U.S.C. § 20101).

Under the FRSA and the Accident Reports Act,

railroad carriers must regularly provide the Federal

Railroad Administration (“FRA”) with information

about accidents and injuries, including those affecting

railroad employees. See 49 U.S.C. § 20901; 49 C.F.R.

§§ 225.1–225.41. This information is vital to the FRA’s

efforts to “develop hazard elimination programs and

risk reduction programs that focus on preventing

10

railroad injuries and accidents.” 49 C.F.R. § 225.1.

The FRA uses this information to determine how to

focus its regulatory efforts and when and where to

conduct investigations. See id. § 225.31. Reportingrequirement violations can lead to substantial

financial penalties. See id. § 225.29; 49 U.S.C.

§§ 21302, 21304.

Congress amended the FRSA in 1980 after it had

become evident that railroads often mistreated

workers who spoke out about safety concerns or

cooperated with enforcement agencies. See Consol.

Rail Corp. v. United Transp. Union, 947 F. Supp. 168,

171 (E.D. Pa. 1996) (“After the FRSA’s passage,…it

came to Congress’ attention that railroad workers who

complained about safety conditions often suffered

harassment, retaliation, and even dismissal.”).

Congress responded by amending the FRSA to include

a whistleblower provision that prohibited railroads

from retaliating against employees who reported

violations of federal railroad safety laws or took part

in proceedings related to the enforcement of these

laws. Id.; Federal Railroad Safety Authorization Act

of 1980, Pub. L. No. 96-423, § 10, sec. 212(a), 94 Stat.

1811 (codified as amended at 49 U.S.C. § 20109).

Unfortunately, Congress’s amendment proved to

be ineffective. Deeply entrenched railroad policies and

practices limited the new provision’s ability to protect

employees. Even with the amendment, the industry

remained plagued by “substantial underreporting and

inaccurate reporting of injury and accident data,” as

workers continued to forgo reporting safety concerns,

including their own on-the-job injuries, due to fear of

reprisal and to railroad policies that have a chilling

effect. U.S. Gen. Accounting Office, GAO/RCED-89-

11

109, Railroad Safety: FRA Needs to Correct

Deficiencies in Reporting Injuries and Accidents, at 3

(April 1989).

Brazen employer intimidation was responsible for

much of the underreporting. As the FRA

Administrator explained in 2007 congressional

testimony, “harassment and intimidation” are an

unpleasant fact of life for railroad workers. The

Impact of Railroad Injury, Accident, and Discipline

Policies on the Safety of America’s Railroads: Hearing

Before the H. Comm. on Transp. & Infrastructure,

110th Cong., at 139–40 (Oct. 25, 2007) (Testimony of

Joseph H. Boardman) (“2007 Hearing”). 3 The

harassment and intimidation take a familiar form:

workers are disciplined for blowing the whistle on

safety violations. See Pan Am Rys. v. U.S. Dep’t of

Labor, 855 F.3d 29, 39 (1st Cir. 2017) (“Pan Am

appeared to the ALJ to have a corporate culture more

focused on retaliation than on safety: the ALJ found

that 99% of injuries at Pan Am that were reportable

to the FRA triggered formal charges against the

injured employee.”). Not surprisingly, then, many

railroad employees do not disclose injuries or safety

concerns to the railroad “because they wish to avoid

potential harassment from management or possible

discipline that is sometimes associated with

[reporting].” Railroad Accident Reporting, 61 Fed.

Reg. 30,940–41 (June 18, 1996).

See also Statement of Joseph H. Boardman, Committee on

Transportation

and

Infrastructure,

U.S.

House

of

Representatives,

Oct.

25,

2007,

https://www.transportation.gov/testimony/impact-railroadinjury-accident-and-discipline-policies-safety-americasrailroads.

3

12

But active intimidation was not the only reason

for the rampant underreporting. Congress heard that

railroads’ workplace policies created powerful

incentives to underreport safety violations. Policies

that are ostensibly meant to address safety

problems—for

example,

tying

supervisor

compensation to reductions in reported injuries 4—can

“unintentionally inhibit” reporting as well. 2007

Hearing, at 3 (statement of Rep. James R. Oberstar,

Comm. Chair); see Araujo, 708 F.3d at 159–60

(describing legislative history of 2007 amendments to

FRSA and Congressional focus on railroad programs

that “subtly or overtly intimidate employees from

reporting on-the-job injuries” (quoting 2007 Hearing)

(emphasis added)). Railroads have also established

sweeping and easily violated workplace rules that can

be wielded to discourage workers from reporting

accidents and injuries—and to punish those who do.

See Smith-Bunge v. Wis. Cent., Ltd., 60 F. Supp. 3d

1034, 1041 (D. Minn. 2014) (observing that “[i]f a

worker who suffers a subtle injury knows that

reporting the injury after 24 hours will result in

disciplinary action, including the possibility of an

unpaid suspension, his or her incentive to report the

injury is chilled”).

4 See Araujo, 708 F.3d at 159 (describing 2007 report of Majority

Staff of the House Committee on Transportation &

Infrastructure); see also Occupational Safety & Health Admin.,

Employer Safety Incentive and Disincentive Policies and

Practices

(March

12,

2012),

www.osha.gov/lawsregs/standardinterpretations/2012-03-12-0 (listing common

employer policies and practices that can discourage employee

reports of injuries).

13

Because the FRSA’s 1980 whistleblower

amendment failed to protect railroad workers or the

public, Congress substantially revised the FRSA’s

whistleblower provision in 2007. The amendments

were meant to “enhance the oversight measures that

improve transparency and accountability of the

railroad carriers” and “ensure that employees can

report their concerns without the fear of possible

retaliation or discrimination from employers.” H.R.

Conf. Rep. No. 110-259, at 348 (2007), reprinted in

2007 U.S.C.C.A.N. 119, 180–81; see Pan Am Rys., 855

F.3d at 38 (“When Congress amended the FRSA in

2007 to expand anti-retaliation protections and shift

enforcement authority from arbitrators to the

Department of Labor, it said that it was aiming to

address and rectify railroads’ history of systematically

suppressing employee injury reports through

retaliatory harassment and intimidation.”).

The FRSA’s whistleblower protections now

provide that railroad carriers “may not discharge,

demote, suspend, reprimand, or in any other way

discriminate against an employee if such

discrimination is due, in whole or in part, to the

employee’s lawful, good faith” engagement in a

protected activity. 49 U.S.C. § 20109(a). The

amendments also changed what counts as a protected

activity under the statute. Now, employees who notify

the railroad of a work-related personal injury, report

hazardous safety conditions, or furnish information

about accidents that cause injury or property damage

are protected from retaliation. See id. § 20109(a)-(c)

(listing these and other forms of protected activity).

But most significant of all, Congress dramatically

altered the substantive legal framework for deciding

14

FRSA whistleblower claims. As it had done earlier

with SOX, Congress specified that FRSA

whistleblower actions “shall be governed under the

rules and procedures” of AIR-21’s two-part

contributing-factor burden-shifting framework. See

49 U.S.C. 20109(d)(2) & 18 U.S.C. § 1514A(b)(2) (both

cross-referencing 49 U.S.C. § 42121(b)).

Congress, courts, and agencies have long

recognized that the FRSA’s adoption of the

contributing-factor framework eliminated the need to

prove retaliatory intent as part of an employee’s case

in chief. See, e.g., Araujo, 708 F.3d at 158, 161 & n.7;

Frost v. BNSF Ry. Co., 914 F.3d 1189, 1195–96 (9th

Cir. 2019); Petersen v. Union Pac. R.R. Co., 2014 WL

6850019, at *2 (A.R.B. Nov. 20, 2014). The statute’s

“contributing factor” language was meant to enable an

employee to prevail on her prima facie case without

showing either that the employer acted with an

improper state of mind or that her protected conduct

was a motivating factor or but-for cause of the

employer’s adverse action. She simply needed to

establish that her protected conduct contributed to the

employment decision in some way. The ball then

moved to the employer’s court—via the same-decision

defense—to justify the adverse employment action.

But as the Second Circuit did in this case, some

courts interpreting the FRSA and analogous

whistleblower statutes have ignored the statute’s

plain language and context and have held that

retaliatory intent is an essential component of an

FRSA claim. See, e.g., Tompkins v. Metro-N.

Commuter R.R. Co., 983 F.3d 74, 82 (2d Cir. 2020);

Armstrong v. BNSF Ry. Co., 880 F.3d 377, 382 (7th

Cir. 2018); Kuduk v. BNSF Ry. Co., 768 F.3d 786, 791

15

(8th Cir. 2014); see also Pet. App. 14a n.7 (detailing

circuit split for FRSA claims on this issue). As

explained below, these decisions find no purchase in

the FRSA, SOX, or other statutes governed by the

contributing-factor framework.

III. The Text, Structure, History, and Purpose of

the FRSA and Other Statutes that Use the

Contributing-Factor Framework Show that

Employees Need Not Prove Retaliatory

Intent.

The Second Circuit’s need-to-prove-intent rule for

SOX and the FRSA is an impermissible extra-textual

addition to these statutes. The text, structure, history,

and purpose of these and other statutes that use the

contributing-factor framework show that employees

need not prove retaliatory intent.

Start with the text and structure of these

statutes. Because “[c]ontext is a primary determinant

of meaning,” Scalia & Garner, at 167, “[s]tatutory

construction…is a holistic endeavor,” United Sav.

Ass’n of Tex. v. Timbers of Inwood Forest Assocs., Ltd.,

484 U.S. 365, 371 (1988). In ascertaining a statute’s

“plain meaning,” courts therefore “must look to the

particular statutory language at issue, as well as the

language and design of the statute as a whole.” K Mart

Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988). Close

attention to the language and design of these statutes

compels the conclusion that proof of retaliatory intent

is not necessary to prevail in whistleblower claims

governed by the contributing-factor framework.

The text and structure of SOX and the FRSA are

nearly identical. First, they provide that covered

employers may not “discharge, demote, suspend,…or

16

in any other manner discriminate against an

employee” because of protected activity. 49 U.S.C.

§ 20109(a); 18 U.S.C. § 1514A(a). Next, they

enumerate the activities that are protected. See 49

U.S.C. § 20109(a)(1)-(7) & (b)-(c); 18 U.S.C.

§ 1514A(a)(1)-(2). Then, they tell courts and agencies

how to decide whether these provisions have been

violated. See 49 U.S.C. § 20109(d)(2); 18 U.S.C.

§ 1514A(2). They explain that this decision “shall be

governed under the rules and procedures” and “the

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

AIR-21. 49 U.S.C. § 20109(d)(2); 18 U.S.C. § 1514A(2).

To correctly analyze SOX and other contributingfactor statutes, courts must read their substantive

provisions in conjunction with their enforcement

provisions. See Lawson, 571 U.S. at 440–43 (reading

substantive, enforcement, and remedial provisions of

§ 1514A together to determine meaning of

“employee”).

Section 42121(b) sets forth two burdens of proof.

An employee must first establish four things by a

preponderance of the evidence: that (1) he engaged in

a protected activity; (2) the employer knew or

suspected that he engaged in a protected activity; (3)

he suffered an adverse personnel action; and (4) the

protected activity was a contributing factor in the

personnel action. 49 U.S.C. § 42121(b)(2)(B)(iii); 29

C.F.R. §§ 1980.104(e)(2), 1982.104(e)(2); Pet. App.

10a. If the employee satisfies these requirements,

then the burden shifts to the employer to demonstrate

by clear and convincing evidence that it would have

taken the same personnel action in the absence of the

protected activity. 49 U.S.C. § 42121(b)(2)(B)(iv); 29

C.F.R. §§ 1980.104(e)(5), 1982.104(e)(4).

17

The statutory text of SOX and the FRSA make

plain that an employer’s state of mind is not part of an

employee’s case. The statutes specify both the causal

standard and causal components of claims arising

under these statutes: employees must show only that

their “[protected] behavior…was a contributing factor

in the unfavorable personnel action.” 49 U.S.C.

§ 42121(b)(2)(B)(iii). The causal connection that

employees must establish occupies the space between

their protected conduct and the adverse action, not

between the adverse action and their employer’s state

of mind. Tamosaitis v. URS Inc., 781 F.3d 468, 482

(9th Cir. 2015). The FRSA, SOX, and AIR-21 explicitly

establish the causal showing that an employee must

make, and an employer’s retaliatory intent is nowhere

to be found.

A text-first approach shines a clear light here.

But the history and purpose animating statutes using

the contributing-factor framework only make that

light brighter. See Lawson, 571 U.S. at 447 (“Our

textual analysis of § 1514A fits the provision’s

purpose.”). Omitting a proof-of-motive requirement in

statutes employing the contributing-factor standard

was no oversight. Just the opposite: the standard grew

out of Congress’s express efforts to relieve plaintiffs of

the burden of proving illicit motive. With the

contributing-factor language that it introduced in the

WPA, Congress “specifically intended to overrule,”

135 Cong. Rec. 5033 (1989) (Explanatory Statement

on sec. 20), decisions that had interpreted the CSRA

as requiring plaintiffs to prove that their employer’s

“motives in taking the retaliatory action were

inappropriate,” S. Rep. No. 100-413, at 13–15 (1988).

18

Soon after the WPA was enacted, courts and

agencies recognized that the statute’s contributingfactor framework enabled plaintiffs to prevail without

proving motive or intent. See, e.g., Marano, 2 F.3d at

1141; Russell v. Dep’t of Justice, 76 M.S.P.R. 317, 323

(M.S.P.B. 1997) (citing Marano, 2 F.3d at 1141). It was

therefore well-established by the time that Congress

included the contributing-factor framework in AIR-21

in 2000, and incorporated AIR-21 into SOX in 2002

and the FRSA in 2007, that whistleblower claims

analyzed under this framework did not require proof

of improper motive or intent. “Congress is presumed

to be aware of an administrative or judicial

interpretation of a statute and to adopt that

interpretation when it re-enacts a statute without

change.” See Lorillard v. Pons, 434 U.S. 575, 580

(1978). “So, too, where, as here, Congress adopts a new

law incorporating sections of a prior law, Congress

normally can be presumed to have had knowledge of

the interpretation given to the incorporated law, at

least insofar as it affects the new statute.” Id. at 581.

There is every reason to conclude that Congress was

aware that whistleblower claims brought under the

contributing-factor framework did not require proof of

motive to establish causation when it adopted that

framework for SOX, the FRSA, and other related

statutes.

It’s not difficult to understand why Congress did

not make retaliatory intent or animus part of

whistleblower claims brought under the FRSA and

other statutes that use the contributing-factor

framework. The ultimate concern of these statutes is

not the mindsets of employers. Menendez v.

Halliburton, Inc., 2011 WL 4915750, at *20 (A.R.B.

19

Sept. 13, 2011) (“The statute is designed to address

(and remedy) the effect of retaliation against

whistleblowers, not the motivation of the employer.”).

Congress did not enact the whistleblower provisions

of these statutes to protect employees from statusbased biases and stereotypes in the workplace, as it

did with Title VII and many other employmentdiscrimination laws.

Take the FRSA as an example. Congress’s central

concern was making the nation’s railroads safer—for

railroaders and the public alike. 5 And it understood

that it could achieve that goal only if railroad

employees felt safe coming forward with information

about their injuries and safety concerns.

Congress was acutely aware that railroaders had

long been discouraged from blowing the whistle on

unsafe practices. Workers often faced intimidation

and harassment from superiors who, it could well be

said, acted with bad motives. But bad motives were

not the only things employees ran up against.

Congress knew that many policies, practices, and

compensation-incentive structures in the railroad

business “unintentionally inhibited” reporting as well.

2007 Hearing, at 3 (statement of Rep. James R.

Oberstar, Comm. Chair). Seeking to put an end to

industry

practices

that

intentionally

and

unintentionally lead to underreporting, it is no

surprise that Congress opted for a whistleblower

5 As recent events confirm, that concern is no less pressing today

than it was 100 years ago. See Mallory v. Norfolk S. Ry. Co., No.

21-1168, slip op. at 1 & n.1 (2023) (discussing February 2023

derailment of dozens of train cars carrying hazardous materials

in East Palestine, Ohio).

20

provision that does not require proof of retaliatory

intent. 6

Adding an extra-textual motive or intent

requirement would directly frustrate Congress’s goal

of protecting railroad workers—and ultimately the

public. Rail workers usually aren’t in the room when

their employers respond to their safety disclosures. A

rational worker, unsure of his employer’s motives and

his ability to prove them—and therefore the strength

of his legal shield—might well be wise to simply keep

his mouth shut. He’d keep his livelihood. But at what

cost? With potentially dangerous hazards going

unreported, it’s the rest of us who’d stand to suffer.

These are precisely the incentives and conditions that

Congress sought to eradicate by using the

contributing-factor framework.

The same logic applies to SOX and the other

contributing-factor statutes. Congress reserves the

contributing-factor

framework

for

financial,

transportation, energy, and other industries that pose

significant dangers to the public. See supra n.2. These

sensitive industries require careful regulation to

ensure the safety and well-being both of workers and

the public. Because acquiring information about

6 Congress incorporated the contributing-factor framework into

SOX for similar reasons. “Of particular concern to Congress” in

passing SOX “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.” Lawson, 571 U.S. at 435 (quoting

S. Rep. No. 107-146, at 2 (2002) (cleaned up)). That code of silence

had its roots in an “incentive system that has been set up that

encourages accountants and lawyers who come across fraud in

their work to remain silent.” Id. (quoting S. Rep. No. 107-146, at

20–21 (2002)).

21

potential fraud and safety violations is necessary to

achieve these purposes, and because workers are often

the best-positioned to have access to this information,

Lawson, 571 U.S. at 435, Congress has long

understood that these ends can be met only by

encouraging workers to disclose this information and

by protecting them when they do, see id. at 447 (“It is

common

ground

that

Congress

installed

whistleblower protection in the Sarbanes-Oxley Act as

one means to ward off another Enron debacle.”).

IV. The Second Circuit Ignored the Plain Text

of SOX and Other Statutes that Use the

Contributing-Factor Framework.

In holding that whistleblowers must prove

retaliatory intent under SOX, the Second Circuit

ignored the text and context of that statute and others

that use the contributing-factor framework. The court

arrived at its conclusion based on what it took to be a

plain-meaning analysis. See Pet. App. 8a–11a. But

that analysis was incomplete and founded on several

false and unsupported assumptions.

The court focused its textual analysis exclusively

on section 1514A’s general, substantive provision.

Because that provision uses the word “discriminate”

and prohibits companies from “discriminat[ing]

against” employees “because of” their protected

activity, the court reasoned that employees covered by

SOX must prove “retaliatory intent [a]s an element of

a section 1514A claim.” See id. 8a–9a (citing 18 U.S.C.

§ 1514A(a)). Courts that have concluded that railroad

employees must prove retaliatory intent under the

FRSA have taken the same flawed approach,

beginning and ending their analysis with the term

22

“discriminate” in that statute. See, e.g., Kuduk, 768

F.3d at 791; Armstrong, 880 F.3d at 382; Tompkins,

983 F.3d at 82.

It’s not hard to see the flaws in this reasoning.

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

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

Second Circuit did not do that. It read SOX with a

kind of textual tunnel vision, looking only at section

1514A’s general prohibition against retaliation while

entirely ignoring the statutory provisions that

expressly specify what parties must prove for SOX

whistleblower claims. Those provisions make clear

that retaliatory intent is not an element of a plaintiff’s

claim. The plain terms of the statute require proof

only that the employee’s protected “behavior…was a

contributing factor in the unfavorable personnel

action.” 49 U.S.C. § 42121(b)(2)(B)(iii) (crossreferenced in 18 U.S.C. § 1514A(b)(2)). By adding

retaliatory intent to the showing that employees must

make, the Second Circuit impermissibly rewrote the

statute. See E.E.O.C. v. Abercrombie & Fitch Stores,

Inc., 575 U.S. 768, 774 (2015) (“The problem with this

approach is the one that inheres in most incorrect

interpretations of statutes: It asks us to add words to

the law…. That is Congress’s province.”).

That is not the only error in the Second Circuit’s

analysis. The court’s understanding of the term

“discriminate” and its belief that proving

discrimination necessarily requires showing intent or

motive are equally flawed. The court concluded that

discrimination, at bottom, flows from a prejudicial

mental state. “To ‘discriminate,’” the court held,

“means to act on the basis of prejudice, which requires

a conscious decision to act based on a protected

23

characteristic or action.” Pet. App. 9a (cleaned up).

Actions are therefore “discriminatory…when they are

based on the employer’s conscious disfavor,” “motive,”

or “animus.” Id. at 10a, 13a–15a.

No doubt much discrimination takes this form.

But the concept of discrimination in both law and life

is far broader than this. The “normal definition” of

“‘discrimination’ is just “differential treatment.” Babb

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

Jackson v. Birmingham Bd. of Educ., 544 U.S. 167,

174 (2005)); see Bostock v. Clayton Cty., 140 S. Ct.

1731, 1740 (2020).

The law reflects this normal understanding. The

lion’s share of anti-discrimination law focuses not on

intent or mental states, but on outward differences in

how people are—or must be—treated. Disparateimpact claims do not require proof of intent; they focus

on “the consequences of actions.” See Tex. Dep’t of

Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc.,

576 U.S. 519, 533 (2015). Neither do harassment or

hostile-work-environment claims require proof of a

discriminatory mental state. See Meritor Sav. Bank v.

Vinson, 477 U.S. 57, 65–68 (1986) (accepting EEOC’s

definition of “sexual harassment” as conduct that “has

the purpose or effect of unreasonably interfering with

an individual’s work performance or creating an

intimidating,

hostile,

or

offensive

working

environment” (quoting 29 C.F.R. § 1604.11(a)(3)

(emphasis added))). Nor, for that matter, do

accommodation claims. The ADA, for instance,

“requires preferences in the form of ‘reasonable

accommodations’ that are needed for those with

disabilities to obtain the same workplace

opportunities that those without disabilities

24

automatically enjoy.” US Airways, Inc. v. Barnett, 535

U.S. 391, 397 (2002). It’s well-established that

employers that fail to accommodate disabled

employees cannot avoid liability by saying that they

did not have an improper motive; that’s because the

ADA “imposes an affirmative obligation to provide

reasonable accommodation to disabled employees.”

Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d

638, 646 n.9 (1st Cir. 2000). “[P]roof of discriminatory

intent” is not required for failure-to-accommodate

claims. Withers v. Johnson, 763 F.3d 998, 1003 (8th

Cir. 2014).

The FRSA, SOX, and other statutes that use the

contributing-factor framework embrace this normal

understanding of discrimination, too. Not only do they

prohibit “harassment.” See 49 U.S.C. § 20109(g); 18

U.S.C. § 1514A(a). They also focus on the end

results—“discharge,

demot[ion],

suspen[sion],

threat[s], [and] harass[ment],” 18 U.S.C. § 1514A(a)—

of the employer’s response to the protected activity. To

“discriminate” under these statutes means nothing

more than doing these things to employees because of

that activity. See 49 U.S.C. § 20109(g) (providing that

“discharge, demot[ion], [and] suspen[sion]” are forms

of “discrimination”); 18 U.S.C. § 1514A(a) (same). To

“discriminate,” in other words, means what it

normally does: treating someone who engages in

protected activity differently than someone who

doesn’t. See 49 U.S.C. § 42121(b)(2)(B)(iv) (providing

that employers may be held liable only if they fail to

prove that they would have taken the same action had

the protected activity not occurred).

This interpretation fits the structure and purpose

of these statutes. Their central aim, again, is to

25

protect workers and the public in industries where

fraud and safety violations can lead to devastating,

even lethal results. That distinguishes these statutes

from Title VII and other employment laws that are

principally concerned with eliminating status-based

bias and prejudice from the workplace. Comparing the

structure of statutes that use the contributing-factor

framework with those that use the motivating-factor

framework illustrates the point. When an employee

proves that her race or sex was a motivating factor in

her employer’s decision to fire her, the employer

cannot escape liability even if it can show that it would

have fired her for independent reasons. See 42 U.S.C.

§§ 2000e-2(m), 2000e-5(g)(B); Univ. of Tex. Sw. Med.

Ctr. v. Nassar, 570 U.S. 338, 348–49 (2013). That

makes perfect sense: any other design would permit

employers to get away with discrimination and allow

prejudice to continue to infect employers’ decisions.

The contributing-factor burden-shifting framework is

different. Employers have a full defense to liability

when they can show that they would have taken the

adverse action for reasons unrelated to the protected

activity even when employees prove that the protected

activity was a contributing factor in the adverse

action. See 49 U.S.C. § 42121(b)(2)(B)(iv). If protecting

employees from bias and animus were the goal of

whistleblower statutes that use the contributingfactor framework, it would be passing strange for

Congress to let employers off the hook when it was

proven that their decision was so tainted.

These differences in the text, structure, and

purpose of these statutes necessarily lead to different

interpretations.

“When

conducting

statutory

interpretation, [courts] ‘must be careful not to apply

26

rules applicable under one statute to a different

statute without careful and critical examination.’”

Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 174 (2009)

(quoting Fed. Express Corp. v. Holowecki, 552 U.S.

389, 393 (2008)). The Second Circuit did not engage in

that careful and critical examination here. In

concluding that employees must show retaliatory

intent—understood variously as “animus,” “motive,”

or conscious disfavor,” Pet. App. At 10a, 13a–15a—

“because of” whistleblowing, the court found guidance

in Vega v. Hempstead Union Free School District, 801

F.3d 72 (2d Cir. 2015), a Title VII case involving the

motivating-factor standard. After explaining that

under this standard “an action is ‘because of’ a

plaintiff’s protected characteristic where it was a

substantial or motivating factor” in the employer’s

decision to take the action, see Pet. 10a (quoting Vega,

801 F.3d at 85 (cleaned up)), the court held that

“discriminatory action ‘because of’ whistleblowing

therefore necessarily requires retaliatory intent—i.e.,

that the employer’s adverse actions was motivated by

the employee’s whistleblowing,” id. (emphasis

added). 7

7 The Second Circuit is not alone in improperly reading motive

and the motivating-factor standard into SOX and analogous

statutes. The court drew support from two FRSA cases that have

made the same error. See Pet. App. 13a–15a (citing Tompkins,

983 F.3d at 82; Armstrong, 880 F.3d at 382 (“[W]hile a FRSA

plaintiff need not show that retaliation was the sole motivating

factor in the adverse decision, the statutory text requires a

showing that retaliation was a motivating factor.”)). By reading

motive, intent, and the motivating-factor into the FRSA and

SOX, these courts effectively read the contributing-factor

standard right out of those statutes.

27

The Second Circuit’s reliance on case law

interpreting Title VII’s motivating-factor standard led

it astray. Motive and the motivating-factor standard

travel together. See, e.g., Abercrombie & Fitch Stores,

Inc., 575 U.S. at 773–74 (interpreting Title VII’s

motivating-factor standard to involve proof of motive);

see also Staub v. Proctor Hosp., 562 U.S. 411, 424

(2011) (Alito, J., concurring in the judgment) (same).

But SOX, of course, does not turn on showing that the

protected activity was a motivating factor in the

adverse action. SOX “relaxes” the causation standard

for whistleblower claims, see Abercrombie & Fitch

Stores, Inc., 575 U.S. at 772–73, and specifies that an

employer’s action was “because of” whistleblowing

when the protected activity was a contributing factor

in the adverse action, 49 U.S.C. § 42121(b)(2)(B)(iii)—

a standard that was “specifically intended to overrule

existing case law” requiring “a whistleblower to prove

that his protected activity was a ‘motivating’ factor” or

that his employer had “a retaliatory motive,” Marano,

2 F.3d at 1140–41 (cleaned up). The upshot is

straightforward: the contributing-factor standard and

a lack of motive and intent travel together, too.

CONCLUSION

The Court should reverse the Second Circuit’s

judgment and hold that employees need not prove

retaliatory intent in SOX and other whistleblower

actions based on the contributing-factor framework.

28

Respectfully submitted,

Colin Reeves

APOLLO LAW LLC

1000 Dean Street

Suite 101

Brooklyn, NY 11238

Adam W. Hansen

Counsel of Record

APOLLO LAW LLC

333 Washington Ave. N.

Suite 300

Minneapolis, MN 55401

(612) 927-2969

adam@apollo-law.com

Attorneys for Amicus Curiae

July 5, 2023