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 WASHINGTON LEGAL FOUNDATION AS

AMICUS CURIAE SUPPORTING RESPONDENTS

____________

John M. Masslon II

Counsel of Record

Cory L. Andrews

WASHINGTON LEGAL FOUNDATION

2009 Massachusetts Ave. NW

Washington, DC 20036

(202) 588-0302

jmasslon@wlf.org

August 14, 2023

QUESTION PRESENTED

Whether plaintiffs must prove retaliatory

intent to prevail on a whistleblower claim under

Sarbanes-Oxley.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ......................................... i

TABLE OF AUTHORITIES .......................................v

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

INTRODUCTION .......................................................1

STATEMENT ..............................................................3

I.

STATUTORY BACKGROUND......................................3

II. FACTUAL BACKGROUND AND PROCEDURAL

HISTORY .................................................................4

SUMMARY OF ARGUMENT.....................................5

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

I.

INTENT IS IMPORTANT IN DISCRIMINATION

CASES .....................................................................6

A. Congress Uses Distinct Language

When Requiring Plaintiffs To Prove

Intent ..........................................................7

B. There Are Good Policy Reasons For

Requiring Intent For Some Causes

Of Action ...................................................10

iv

TABLE OF CONTENTS

(continued)

Page

II. SOX DIFFERS IN SIGNIFICANT WAYS FROM

THE WPA .............................................................13

A. SOX’s Text Does Not Resemble The

WPA’s Text ...............................................13

B. SOX’s Legislative History Does Not

Support Murray’s Argument ...................17

C. Private Industry Employees Have

Different Needs Than Federal

Government Employees ...........................20

CONCLUSION ..........................................................24

v

TABLE OF AUTHORITIES

Page(s)

Cases

Alexander v. Sandoval,

532 U.S. 275 (2001)..........................................8, 14

Chisom v. Roemer,

501 U.S. 380 (1991) ................................................9

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

U.S. Dep’t of Lab. Admin. Rev. Bd.,

948 F.3d 940 (8th Cir. 2020)................................18

Flores-Figueroa v. United States,

556 U.S. 646 (2009) ..............................................12

Gen. Bldg. Contractors Ass’n,

Inc. v. Pennsylvania,

458 U.S. 375 (1982) ................................................7

Griggs v. Duke Power Co.,

401 U.S. 424 (1971) ................................................9

Guam v. United States,

141 S. Ct. 1608 (2021)..........................................15

Harris Tr. & Sav. Bank v.

Salomon Smith Barney, Inc.,

530 U.S. 238 (2000) ..............................................17

Kamps v. Baylor Univ.,

592 F. App’x 282 (5th Cir. 2014) .....................8, 14

Marano v. Dep’t of Justice,

2 F.3d 1137 (Fed. Cir. 1993) ................................13

Raytheon Co. v. Hernandez,

540 U.S. 44 (2003) ................................................10

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Robison Fruit Ranch, Inc.

v. United States,

147 F.3d 798 (9th Cir. 1998)...................... 8, 12, 14

Samantar v. Yousuf,

560 U.S. 305 (2010) ..............................................15

Shelby Cnty. v. Holder,

570 U.S. 529 (2013) ................................................9

Smith v. City of Jackson,

544 U.S. 228 (2005) ................................................9

Students for Fair Admissions, Inc.

v. President & Fellows

of Harvard Coll.,

143 S. Ct. 2141 (2023)..........................................10

United States v. Morton,

467 U.S. 822 (1984) ..............................................15

Yates v. United States,

574 U.S. 528 (2015) ................................................1

Statutes

5 U.S.C.

§ 1221(e)(1)(B) ......................................................15

§ 1221(e)(2) ...........................................................15

§ 2302(b)(8)...........................................................14

8 U.S.C. § 1324b ..........................................................8

18 U.S.C.

§ 1514A(a) ........................................................3, 14

§ 1514A(b)(2)(C) .....................................................3

29 U.S.C. § 623(a)(2) .............................................9, 14

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

42 U.S.C.

§ 1981 .....................................................................7

§ 1985(3) .................................................................7

§ 2000d ...................................................................8

§ 2000e-2(a)(2)..................................................8, 14

§ 6102 .....................................................................8

§ 12112(b)(3)(A) ....................................................10

49 U.S.C.

§ 42121(b)(2)(B) ......................................................3

§ 42121(b)(2)(B)(i) ................................................15

§ 42121(b)(2)(B)(ii) .........................................15, 16

§ 42121(b)(2)(B)(iii) ..............................................15

§ 42121(b)(2)(B)(iv) ........................................15, 16

52 U.S.C.

§ 10301(b) ...............................................................9

§ 10304(b) ...............................................................9

Sarbanes-Oxley Act of 2002, Pub.

L. No. 107-204, 116 Stat. 745 ................................1

Wendell H. Ford Aviation Investment

and Reform Act for the 21st

Century, Pub. L. No. 106-181,

114 Stat. 61 (2000)

§ 307 .....................................................................18

§ 519(a) .................................................................18

Legislative Materials

135 Cong. Rec. 5,033 (1989) ......................................18

Memorandum of Disapproval on a Bill

Concerning Whistleblower

Protection, 2 Pub. Papers 1391

(Oct. 26, 1988) ......................................................17

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

S. Rep. No.

100-413 (1988)......................................................18

105-278 (1998)......................................................19

107-146 (2002)......................................................19

Other Authorities

Cameron Abadi, Adam Tooze: Why the

Economic Gap Between the U.S. and

Europe Is Growing, Foreign Policy

(June 23, 2023).....................................................23

Charles F. Abernathy, Title VI and the

Constitution: A Regulatory Model for

Defining ‘Discrimination,’

70 Geo. L.J. 1 (1981) ..............................................7

Dick Thornburgh et al., Free Enterprise,

Left Behind after Sarbanes-Oxley,

WLF CONVERSATIONS WITH

(Mar. 14, 2008) .......................................................1

Donn C. Meindertsma & Ryan T.

Scharnell, High Court Extends

Federal Whistleblower Protection to

Public Companies’ Private

Contractors, WLF LEGAL

BACKGROUNDER (May 9, 2014) ..............................1

Judith Welch Wegner, The

Antidiscrimination Model

Reconsidered: Ensuring Equal

Opportunity Without Respect to

Handicap Under Section 504 of the

Rehabilitation Act of 1973,

69 Cornell L. Rev. 401 (1984) ..........................7, 14

ix

TABLE OF AUTHORITIES

(continued)

Page(s)

U.S. Gov’t Accountability Off., GAO-15191, FEDERAL WORKFORCE:

Improved Supervision and Better

Use of Probationary Periods Are

Needed to Address Substandard

Employee Performance (Feb. 2015) .....................21

1

INTEREST OF AMICUS CURIAE*

Washington Legal Foundation is a nonprofit,

public-interest law firm and policy center with

supporters nationwide. WLF promotes free

enterprise, individual rights, limited government,

and the rule of law. It often appears as amicus urging

proper interpretation of the Sarbanes-Oxley Act of

2002, Pub. L. No. 107-204, 116 Stat. 745. See, e.g.,

Yates v. United States, 574 U.S. 528 (2015); Neer v.

Perlino, No. 05-4830 (3d Cir. brief filed May 17, 2006).

WLF’s Legal Studies Division publishes papers

on the harms of extending SOX liability beyond its

statutory text. See, e.g., Donn C. Meindertsma &

Ryan T. Scharnell, High Court Extends Federal

Whistleblower Protection to Public Companies’

Private Contractors, WLF LEGAL BACKGROUNDER

(May 9, 2014); Dick Thornburgh et al., Free

Enterprise, Left Behind after Sarbanes-Oxley, WLF

CONVERSATIONS WITH (Mar. 14, 2008).

INTRODUCTION

When SOX was passed over twenty years ago,

only a small cadre of attorneys focused on

whistleblower litigation. That meant that only a few

lobbyists were pushing an agenda tied to

whistleblowing. Today, however, representing

whistleblowers in court is big business. Many

attorneys have made a fortune suing companies

under SOX. These attorneys have formed a powerful

lobby that peddles money, and thus influence, on

* No person or entity, other than Washington Legal

Foundation and its counsel, paid for the brief’s preparation or

submission.

2

Capitol Hill. The lobby tries to make it easier to extort

money from companies by expanding SOX liability.

The unions have happily jumped on board these

attempts at expanding the scope of liability, hoping to

make it harder for companies to fire underperforming

workers.

When the whistleblower lobby fails in the halls

of Congress, it shifts its agenda to the courts. That is

what has happened here. The top-side briefs try to

paint a picture of virtuous employees who are being

fired for their good-faith reporting of corporate

misconduct. What is happening, however, is that

companies are making sound business decisions that

do not discriminate based on whether employees

report alleged misconduct.

Companies—not courts—make the best

staffing decisions. Although there may be a temporal

proximity between reported wrongdoing and staff

reshuffling, it does not follow that there is

discrimination based on whistleblowing activities.

Rather, there are many innocent explanations for

why reported wrongdoing may lead to staff reductions

or realignment.

In other words, businesses are accountable for

their conduct. This differs from how the federal

government operates. Today’s civil-service system is

broken. Federal employees enjoy de facto life tenure;

it is nearly impossible to be dismissed from a civilservice job. That is why good customer service from

the Internal Revenue Service or the Social Security

Administration is so rare while it is common to get

good customer service at a bed and breakfast.

3

The top-side briefs, however, try to graft onto

SOX the framework for federal employee

whistleblowers. This simply makes no sense. At a

basic level, the statutes use different language

because they have different burden-shifting

frameworks. But even overlooking that technicality,

it makes no sense to force companies to behave like

the federal government. Doing so would harm our

nation’s economy. This Court should thus reject the

top-side’s pleas to give companies’ employees the

same protections that federal workers enjoy.

STATEMENT

I.

STATUTORY BACKGROUND

Under SOX, no 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”

act protected by SOX. 18 U.S.C. § 1514A(a). SOX does

not itself say who bears the burden of proof for a

whistleblower claim. See 18 U.S.C. § 1514A(b)(2)(C).

Rather, it borrows from another statute, under which

an employee must prove, among other things, that his

protected activity was a “contributing factor” in an

adverse employment action. See 49 U.S.C.

§ 42121(b)(2)(B). If an employee meets that burden,

the burden shifts to the employer to prove by clear

and convincing evidence that it “would have taken the

same unfavorable personnel action in the absence of

that behavior.” Id.

4

II.

FACTUAL BACKGROUND

HISTORY

AND

PROCEDURAL

Murray worked as a strategist in UBS’s

commercial mortgage-backed securities business. In

that role, he published market research. Because

strategists don’t generate revenue, the position is

unnecessary to UBS’s business. Due to market

pressures, UBS decided not to expand its mortgagebacked securities business. That made Murray’s

position a luxury. As UBS was in financial trouble, it

could not afford luxuries.

UBS eventually decided to cut seven positions

in Murray’s unit. UBS cut Murray’s position because

it had decided not to expand its commercial mortgagebacked securities business. In other words, UBS made

the business judgment to save money by eliminating

the research group’s sole commercial mortgagebacked securities job. Because it could not transfer

Murray to a different position, UBS let him go.

Murray sued, alleging that UBS violated SOX

by firing him after pressuring him to skew his public

research. At trial, the judge refused to instruct the

jury that Murray had to prove that UBS intentionally

retaliated against him. Rather, the judge instructed

the jury that Murray need show only that his

whistleblowing activities tended to affect, in any way,

UBS’s decision to terminate his employment. See J.A.

130. After the jury found for Murray, the district court

entered final judgment. The Second Circuit reversed,

unanimously holding that “retaliatory intent is an

element of a section 1514A claim.” Pet. App. 8a. As

the court explained, “[t]he unambiguous, ordinary

meaning of section 1514A’s statutory language

5

requires retaliatory intent.” Pet. App. 9a. After the

Second Circuit denied Murray’s rehearing petition,

this Court granted certiorari to consider the issue.

SUMMARY OF ARGUMENT

I.A. When Congress passes statutes, it chooses

its language carefully. If it wants plaintiffs to prove

intent when bringing a claim, it uses the unmodified

word “discriminate” to express that wish. When it

wants to allow plaintiffs to prevail without proving

intent, it uses broad language that shows that desire.

Both this Court and the courts of appeals have

consistently interpreted various statutes in this way.

The difference in language shows that plaintiffs must

prove intent to prevail under SOX even though

federal employees need not prove intent to prevail

under the Whistleblower Protection Act.

B. Congress also chooses statutory words for a

reason. There are sound public policy reasons for

requiring plaintiffs to prove intent under some

statutory causes of action but not under others. There

are particularly good reasons for not requiring federal

employees to show intent under the WPA while

requiring private employees to show intent under

SOX. Murray and his amici overlook these

congressional policies when asking this Court to make

a different policy choice.

II.A. Murray’s argument that the WPA and

SOX should share the same interpretation lacks

merit. The two statutes are worded differently for a

reason. True, some isolated language is similar. But

read in context, SOX’s language requires plaintiffs to

6

prove intent while the WPA’s language does not. This

Court’s analysis should end there.

B. If the Court looks beyond the two statutes’

plain language, legislative history shows that

Congress wanted different burdens for federal

employees and private employees. Before the WPA’s

enactment, President Reagan vetoed a similar bill

because he thought that federal employees should

have the same burden as private employees. During

debates on the WPA, members of Congress said they

wanted to lessen the burden on federal employee

whistleblowers. And after the WPA’s passage,

Congress kept passing statutes that treated federal

employees differently from private employees.

C. It is nearly impossible to fire federal

employees, no matter how badly they perform.

Private

companies,

meanwhile,

often

fire

underperforming workers. This helps explain why

Congress relieved federal employees of the burden to

prove intent. If a federal agency takes adverse

employment action against a whistleblower, it is

almost certainly discrimination. The same is not true

in the private sector. This is yet another reason that

the WPA and SOX should not be interpreted

similarly.

ARGUMENT

I.

INTENT IS IMPORTANT IN DISCRIMINATION

CASES.

Murray and his amici try to distract this Court

from SOX’s plain language and the relevant case law.

They refuse to admit that SOX bars discrimination

7

based on protected whistleblower activity. That fact

makes SOX an anti-discrimination statute that

should be treated as such. Murray and his amici,

however, try to run away from this antidiscrimination component of SOX’s whistleblower

protections. And for good reason—it sinks their case.

A.

Congress Uses Distinct Language

When Requiring Plaintiffs To Prove

Intent.

1. Congress began passing anti-discrimination

statutes after the Civil War. At the time,

“discrimination was often characterized by overt

denials of equal opportunity, which were the product

of acknowledged racial animus.” Judith Welch

Wegner, The Antidiscrimination Model Reconsidered:

Ensuring Equal Opportunity Without Respect to

Handicap Under Section 504 of the Rehabilitation Act

of 1973, 69 Cornell L. Rev. 401, 429 (1984) (citing Gen.

Bldg. Contractors Ass’n, Inc. v. Pennsylvania, 458

U.S. 375, 386-88 (1982)). Thus, “federal civil rights

statutes of the period specifically address purposeful

discriminatory conduct of this type.” Id. (citing 42

U.S.C. §§ 1981, 1985(3)).

Over the past few decades, Congress has been

sharply divided on whether to keep the intent

requirement for anti-discrimination statutes. Often,

the debates have been heated. See Charles F.

Abernathy, Title VI and the Constitution: A

Regulatory Model for Defining ‘Discrimination,’ 70

Geo. L.J. 1, 34-35 (1981). Congress has decided to

keep the intent requirement for anti-discrimination

statutes. In some other civil-rights and civil-rightsadjacent statutes, however, Congress has chosen to

8

eliminate the intent requirement. Congress has not

eliminated the intent requirement under SOX.

2.i. When Congress uses the term

“discrimination” without further qualification, it

requires plaintiffs to show intent as part of their case

in chief:

•

Title VI bars discrimination. See 42 U.S.C.

§ 2000d. This requires that the plaintiff prove

intent. Alexander v. Sandoval, 532 U.S. 275,

280-81 (2001).

•

The

Age

Discrimination

Act

bars

discrimination. See 42 U.S.C. § 6102. This too

requires plaintiffs to prove intent. See Kamps

v. Baylor Univ., 592 F. App’x 282, 285-86 (5th

Cir. 2014).

•

The Immigration Reform and Control Act of

1986 also bars discrimination. 8 U.S.C.

§ 1324b. Unsurprisingly, it requires that

plaintiffs prove intent. See Robison Fruit

Ranch, Inc. v. United States, 147 F.3d 798, 801

(9th Cir. 1998).

ii. When Congress does not want to force

plaintiffs to prove intent, it says so explicitly. And it

has not hesitated to create disparate-impact

liability—which does not require proving intent.

•

Title VII makes it illegal “to deprive any

individual of employment opportunities or

otherwise adversely affect his status as an

employee” for specific reasons. 42 U.S.C.

§ 2000e-2(a)(2) (emphasis added). The Court

9

has held that the “otherwise adversely affect”

language naturally removes any intent

requirement. See Griggs v. Duke Power Co., 401

U.S. 424, 429-31 (1971).

•

The Age Discrimination in Employment Act

similarly uses the “otherwise adversely affect”

language. 29 U.S.C. § 623(a)(2). So plaintiffs

can assert disparate-impact claims under the

ADEA. See Smith v. City of Jackson, 544 U.S.

228, 235-36 (2005).

•

States and localities violate Section 2 of the

Voting Rights Act when, “based on the totality

of circumstances, it is shown that the political

processes leading to nomination or election in

the State or political subdivision are not

equally open to participation by members of a

class of citizens.” 52 U.S.C. § 10301(b)

(emphases added). Because Congress told

courts to look at the totality of circumstances to

decide whether election laws treat groups

equally, it meant to relieve plaintiffs of the

burden of proving intent. See Chisom v.

Roemer, 501 U.S. 380, 394 (1991).

•

Similarly, States and localities violate Section

5 of the Voting Rights Act when a voting

qualification “has the purpose of or will have

the effect of diminishing the ability [to vote] of

any citizens of the United States on account of

race or color.” 52 U.S.C. § 10304(b) (emphasis

added). This too allows plaintiffs to bypass the

intent requirement. Shelby Cnty. v. Holder, 570

U.S. 529, 539 (2013).

10

•

The Americans with Disabilities Act also

employs “the effect of” language. 42 U.S.C.

§ 12112(b)(3)(A). So it is unsurprising that the

Court has held that plaintiffs need not prove

intent under the ADA. Raytheon Co. v.

Hernandez, 540 U.S. 44, 53 (2003).

B.

There Are Good Policy Reasons For

Requiring Intent For Some Causes

Of Action.

1. Persuasive policy reasons explain why

Congress has declined to eliminate the intent

requirement from some statutes. For example,

plaintiffs can assert a disparate-impact claim under

Title VII but not under Title VI. At first glance, this

may seem odd. But Title VI addresses discrimination

in programs receiving federal funding. The only

reason that a program receives federal funding is

because the government believes it benefits the

community. So it makes sense that Congress does not

want to hurt a program benefitting the entire

community by permitting plaintiffs to recover for

unintentional or incidental disparate treatment. In

short, Congress desires to protect federal-funds

recipients from baseless lawsuits.

Once the plaintiff proves that a federal-funds

recipient has discriminated because of race, Congress

has decided that pulling the federal funding is

warranted. Although this may hurt the community, it

is worth it because intentional discrimination based

on race is insidious and must be rejected at every

opportunity possible. See Students for Fair

Admissions, Inc. v. President & Fellows of Harvard

Coll., 143 S. Ct. 2141, 2161 (2023).

11

Congress has decided that the same concerns

are not present in the Title VII context. There,

Congress is regulating conduct irrespective of the

receipt of federal funds. Allowing plaintiffs to sue for

disparate impact under Title VII does not harm the

public as much as it would if those suits were allowed

under Title VI. In other words, there is a reasonable

policy rationale for Congress’s choice to keep the

intent requirement for claims under Title VI.

2. The same rationale explains the difference

between the Age Discrimination Act and the ADEA.

Again, the Age Discrimination Act bars age

discrimination in federally funded programs while

the ADEA covers contracts between private parties.

As it did with the Title VI/Title VII distinction,

Congress decided that it should require plaintiffs to

prove intent if they wish to prevail under the Age

Discrimination Act. Again, this helps protect federalfunds recipients from baseless lawsuits. If such suits

were allowed to proceed to judgment, it is likely that

fewer organizations would be willing to accept federal

funds. Although the money may be helpful in the

short term, it might cost the recipients more in the

end if they had to pay to defend against agediscrimination claims. But for claims under the

ADEA, which do not hinge on accepting federal funds,

Congress allowed for disparate-impact claims. In

short, Congress made another reasonable policy

decision to keep the intent requirement for Age

Discrimination Act claims.

3. Finally, the Immigration Reform and

Control Act also requires that plaintiffs prove intent.

Again, there are strong policy reasons for requiring

12

this showing of intent. A key aim of our nation’s

immigration laws is ensuring that those who work in

the United States are legally authorized to do so. For

aliens, their ability to work depends on their

immigration status and any restrictions that status

carries. Employers ensure compliance with these laws

by requesting that all workers—citizens and aliens

alike—provide documentation showing their ability to

legally work in the United States.

Employers would hesitate to request such

documentation, or would not examine those

documents, if plaintiffs could recover under the

Immigration Reform and Control Act without proving

intentional discrimination. So Congress decided to

amend the Act in 1996 to require that plaintiffs prove

an intent to discriminate to prevail in a suit.

Requiring plaintiffs to show intent to prevail in

a civil action balances the need to eliminate

discrimination based on immigration status while

ensuring that workers are eligible to work in the

United States. This is a very pragmatic policy choice.

And the Courts have enforced that decision. See

Robison Fruit Ranch, 147 F.3d at 801.

4. As described below, Congress had an equally

reasonable policy rationale for requiring plaintiffs in

SOX cases to prove discrimination rather than

requiring employers to prove that they did not

discriminate. True, as shown by a top-side amicus

brief, not every member of Congress is happy with

that decision; some would have preferred a different

law. But what matters is the text of the law that

Congress enacted. See Flores-Figueroa v. United

States, 556 U.S. 646, 658 (2009) (Scalia, J.,

13

concurring). It retained the discrimination language

that courts have long recognized requires the plaintiff

to prove intent.

Murray and his amici ask this court to

disregard this sound policy decision and eliminate the

important protections an intent requirement provides

in anti-discrimination statutes. A decision reversing

the Second Circuit would jeopardize the intent

requirement in all areas of anti-discrimination law.

This Court should not go down that path. Rather, it

should confirm that when Congress uses unqualified

discrimination language, plaintiffs bear the burden of

proving intent to prevail in a civil suit.

II.

SOX DIFFERS IN SIGNIFICANT WAYS FROM

THE WPA.

Murray and his amici spill much ink arguing

that this Court should interpret SOX in the same way

the Federal Circuit has interpreted the WPA; it does

not require plaintiffs prove intent. See Marano v.

Dep’t of Justice, 2 F.3d 1137, 1141 (Fed. Cir. 1993).

This argument fails for three reasons.

A.

SOX’s Text Does Not Resemble The

WPA’s Text.

The most glaring—and fatal—flaw in Murray’s

and his amici’s arguments is that SOX’s text differs

materially from the WPA’s. This textual difference

helps explain why SOX requires plaintiffs to prove

intent even though the WPA does not.

1. SOX bars publicly traded companies from

“discriminat[ing] against an employee * * * because

14

of” any lawful whistleblowing act. 18 U.S.C.

§ 1514A(a). As detailed above, this Court has

interpreted this type of language as requiring a

plaintiff to prove intent. From after the Civil War

until today, the use of the phrase “discriminate

because of” without qualification generally requires

that plaintiffs prove intent. See Sandoval, 532 U.S. at

280-81; Kamps, 592 F. App’x at 285-86; Robison Fruit

Ranch, 147 F.3d at 801; see also Wegner, 69 Cornell

L. Rev. at 429.

The WPA lacks this language. Rather, it

employs language that this Court has consistently

found relieves plaintiffs of their obligation to prove

intent. The WPA makes it unlawful to “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” protected activity. 5 U.S.C.

§ 2302(b)(8).

If this language sounds familiar, it should. It

resembles other statutory language that the Court

has found allows plaintiffs to prevail without proving

intent. Both Title VII and the ADEA use very broad

language that allow disparate-impact claims. See 42

U.S.C. § 2000e-2(a)(2); 29 U.S.C. § 623(a)(2). The

WPA, Title VII, and the ADEA therefore prevent

specified actions based on certain activities or

characteristics. Title VII and the ADEA also bar

actions that hurt people with certain protected

characteristics, even if the actions themselves are

nondiscriminatory. That is why, under all three

statutes, courts have found that plaintiffs need not

prove intent to prevail on some claims.

15

SOX, however, uses different language. It bars

only discrimination. This language choice shows that

Congress wanted to keep the rule that requires

plaintiffs alleging discrimination to prove intent.

2. Unsurprisingly, Murray and his amici don’t

focus on this language from the WPA and SOX. They

understand that this Court’s precedents are clear that

when Congress uses the term “discrimination,” it

intends for the burden to be on plaintiffs to prove

intent. Rather, they focus on other portions of the two

statutes. See, e.g., Murray Br. 27.

Those portions of the statues, however, cannot

be read in isolation. See Samantar v. Yousuf, 560 U.S.

305, 319 (2010) (citing United States v. Morton, 467

U.S. 822, 828 (1984)). Rather, “statutes must be read

as a whole.” Guam v. United States, 141 S. Ct. 1608,

1613 (2021) (cleaned up). Read as a whole, SOX and

the WPA are dissimilar.

Murray cites those parts of the WPA and SOX

that allow for a claim when prohibited conduct “was a

contributing factor” in the “personnel action.” 5

U.S.C. § 1221(e)(1)(B); 49 U.S.C. §§ 42121(b)(2)(B)(i),

(iii). He also cites common statutory language that

allows an employer to show that it “would have taken

the same” “personnel action in the absence of such”

protected activity. 5 U.S.C. § 1221(e)(2); 49 U.S.C.

§§ 42121(b)(2)(B)(ii), (iv).

This language in SOX and the WPA matters.

But it matters only after the plaintiff proves what is

needed for a violation. Under the WPA, this is a very

low bar to clear; plaintiffs need prove only that they

were subject to personnel action because of protected

16

activity. Under SOX, this is a higher bar to clear.

Plaintiffs must show that they were discriminated

against because of their protected whistleblower

activity.

Plaintiffs’ burden to prove (or not prove) intent

thus arises first. Under the WPA, there is no

requirement to prove intent. But that requirement

exists under SOX. This shows how the statutory

language differentiates SOX from the WPA.

This interpretation does not render the

affirmative defense in 49 U.S.C. §§ 42121(b)(2)(B)(ii),

(iv) superfluous. Even if a defendant may have

discriminated against an individual in part because of

their protected whistleblower activity, that does not

automatically mean that they would not have taken

the same action without the protected activity. For

example, imagine an employee of a public company

who sets lines for college football games. The

employee reveals corruption in which bookies are

paying athletes to shave points. The company

investigates and considers internal discipline. But the

next day, every State bans betting on college sports.

The company then lays off the whistleblower as part

of a reduction in force. Although the linemaker may

be able to prove that the company discriminated

against him for his whistleblowing activities, the

company could likely prove that it would let him go

anyway because there were no more college football

games to set lines for. This is just one example of the

way the affirmative defense remains relevant under

the Second Circuit’s correct interpretation of SOX.

In other words, the temporal proximity

between an employee’s termination and her

17

whistleblowing activities does not mean that she

faced discrimination. Rather, the whistleblowing

activities may have just led to industry-wide changes

that makes the employee’s position unnecessary.

B.

SOX’s Legislative History Does Not

Support Murray’s Argument.

SOX’s text so obviously compels affirming the

Second Circuit’s decision that further inquiry is

unnecessary. See Harris Tr. & Sav. Bank v. Salomon

Smith Barney, Inc., 530 U.S. 238, 254 (2000) (“where

the statutory language provides a clear answer,” this

Court’s inquiry “ends there” (quotation omitted)). But

even if this Court looks at SOX’s legislative history, it

will find no support for Murray’s position.

Six months before the WPA became law,

Congress passed a nearly identical bill. But President

Reagan pocket vetoed the legislation. See generally

Memorandum of Disapproval on a Bill Concerning

Whistleblower Protection, 2 Pub. Papers 1391 (Oct.

26, 1988). As he noted, the WPA altered “the factual

showings required of employees in making their cases

in whistleblower proceedings.” Id. at 1391. It

essentially “rigs the [] process against agency

personnel managers in favor of employees.” Id. There

is no similar legislative history showing that SOX

changed the factual showing that employees of public

companies must make to prevail in a whistleblower

claim; it just created the claim. Nor is there any

legislative history showing that Congress passed SOX

to rig the process in favor of employees and against

companies.

18

When Congress debated the WPA, members

said that the statute’s purpose was to reduce the

burden on a federal employee whistleblower. See 135

Cong. Rec. 5,033 (1989) (statement of Rep. Sikorski);

see also id. at 5,032 (stating that the WPA’s sponsors

agreed with this assessment). This tracks the Senate

report on the prior year’s bill that was pocket vetoed

by President Reagan. See S. Rep. No. 100-413, 33

(1988). There is, of course, no similar statement in the

legislative history for SOX. Rather, members of

Congress conveyed only that they wanted to provide

some level of protection for whistleblowers working

for private parties. This differs significantly from the

WPA’s legislative history.

Then over a decade after the WPA’s passage,

Congress gave Federal Aviation Administration

employees the same protections that the WPA gave

most other federal employees. See Wendell H. Ford

Aviation Investment and Reform Act for the 21st

Century, Pub. L. No. 106-181, § 307, 114 Stat. 61, 124

(2000). The same statute also gave whistleblower

protection to some private aviation employees. But in

doing so, Congress required the private employees to

prove intent. See id. § 519(a), 114 Stat. at 145; Dakota,

Minn. & E. R.R. Corp. v. U.S. Dep’t of Lab. Admin.

Rev. Bd., 948 F.3d 940, 945 (8th Cir. 2020). It did so

while not requiring the same showing for FAA

employees. See AIR-21 § 307, 114 Stat. at 124.

The previous Congress considered similar

legislation as AIR-21 but could not pass it. The Senate

report on that legislation explains the difference in

treatment between FAA employees and those

employed by private companies. Congress wanted

FAA employees to enjoy the same whistleblower

19

protections that other federal employees had. See S.

Rep. No. 105-278, 21 (1998). Notably, the Senate

report does not compare the protections private

industry employees enjoy to those given to FAA

employees. Rather, it compares the protections to

those given to other private industry employees. See

id. at 22. The analogy used by the Senate is

instructive. Because FAA employees have a different

burden of proof than private aviation employees,

Congress did not compare those employees’

protections. Even though both categories of

protections were included in the same statute,

Congress did not conflate oranges with apples.

Private employees must prove intent, federal

employees do not.

As discussed in the parties’ briefs, SOX

borrows from AIR-21. Yet even that statute found it

necessary to distinguish between the whistleblower

protections for government employees and those for

private sector employees. That is why even Murray

can argue only that “[w]hen Congress enacted SOX, it

wanted ‘similar protection’ to the WPA for corporate

whistleblowers.” Murray Br. 7 (quoting S. Rep. No.

107-146, 10 (2002) (emphasis added)). The word

similar was used because Congress did not want to

provide the same protection. As in other contexts, it

wanted private employees to have to prove intent

while relieving federal employees of that burden.

So legislative history from before and after the

WPA’s passage shows that Congress wanted to

provide federal employees with whistleblower

protections stronger than those enjoyed by employees

in private industry. Murray and his amici argue,

however, that neither the WPA’s nor SOX’s

20

whistleblower protections require a showing of intent.

If this Court looks past the two statutes’ plain

language, it should reject this argument because the

legislative history shows that Congress did not intend

such a result.

C.

Private Industry Employees Have

Different Needs Than Federal

Government Employees.

1.i. One thing that makes our free-enterprise

system work is that companies can hire and fire

employees quickly, for almost any reason. This ability

to quickly change labor inputs—both quantitatively

and qualitatively—allows for the most efficient

allocation of an expensive resource.

Because they understand that sometimes their

labor needs will change, companies need flexibility to

hire and fire individuals quickly. For example, in

early spring many golf courses begin hiring more

people to care for the course, to caddy, and to sell food.

Then, as winter approaches, many of those same

people are let go because the demand for golf services

plummets. If companies had to worry about being

sued every time they let go of these seasonal workers,

it could cost thousands of dollars to play a round of

golf.

The same goes for adjusting staffing depending

on how employees perform. It makes no sense to have

an individual fill a role if a replacement could do the

job more efficiently. In these cases, companies replace

the underperforming workers with others, either from

inside or outside the organization. Either way, the

company’s productivity can increase when poorly

21

performing employees are replaced with better

employees. And sometimes, just eliminating an

employee—without replacement—is best because of

increased morale and other intangibles.

ii. The federal government, however, is

different. “The time and resource commitment needed

to remove a poor performing permanent employee can

be substantial.” U.S. Gov’t Accountability Off., GAO15-191,

FEDERAL

WORKFORCE:

Improved

Supervision and Better Use of Probationary Periods

Are Needed to Address Substandard Employee

Performance highlights (Feb. 2015). At best, it can

take six months to a year to fire a federal employee.

See id. at 13-14. But often that timeframe is

“significantly longer.” Id. at 13.

The time and effort required to fire a federal

employee leads to many poor performers getting to

keep their jobs forever. “According to selected experts

and GAO’s literature review, concerns over internal

support, lack of performance management training,

and legal issues can also reduce a supervisor’s

willingness to address poor performance.” FEDERAL

WORKFORCE, supra at highlights. Combined with

the fact that “[s]ome employees promoted to

supervisory positions because of their technical skill

are not as inclined towards supervision,” id. at 8, few

federal employees ever face disciplinary proceedings.

2. This difference between how private

industry works and how the federal government

works is key to understanding the difference between

SOX and the WPA. When adverse personnel action is

taken against a federal employee, something is

grievously wrong. It happens so rarely that it

22

immediately raises suspicions. Typically, it means

that there has been such gross misconduct by an

employee that his supervisor is willing to spend years

going through the tedious procedures necessary to fire

him. This is no simple task and takes away from the

supervisor’s other responsibilities.

Because the employee likely did something so

egregious as to warrant getting fired, it is easy for the

agency to prove that is the reason that the employee

was dismissed. In other words, all the evidence has

been collected to show why that person has been fired.

There is no increased burden with gathering that

evidence.

When a federal employee is fired (or otherwise

retaliated against) for protected whistleblowing

activities, bells go off across the system. Because

discipline against federal employees is so rare, the

fact that a whistleblower faces an adverse personnel

action leads to the strong suspicion that it is

retaliation.

Because the inference of retaliation is so

strong, Congress decided not to require the federal

employee to prove intent under the WPA. Rather, it

jumped straight to requiring the agency prove that it

would have taken the adverse action without the

protected whistleblower activity. Again, there should

be a comprehensive record already compiled if the

action was not retaliatory.

Private industry is very different. Because it is

so easy for companies to hire, fire, and otherwise

change employee job descriptions, there is no strong

inference of discrimination based on whistleblower

23

activity. Similarly, there is no need for companies to

compile mountains of evidence showing that they

would have taken the same action but for the

plaintiffs’ protected whistleblower activities. The

combination of these two facts led Congress to decide

that plaintiffs should have to prove intent to prevail

in a SOX whistleblower case.

In other words, the difference between the

WPA and SOX makes sense when examined in the

context of how private companies and the federal

government treat employees. Under one set of laws,

there is no support for a strong presumption of

discrimination and no need to keep records to support

employment action. Under a different set of laws, any

adverse employment action towards a whistleblower

has a strong presumption of discrimination and the

agency has compiled a heap of evidence showing that

the adverse employment action is not retaliation—if

that is true.

Murray’s and his amici’s arguments comparing

the WPA to SOX therefore make no sense. The two

statutes cover vastly different scenarios that require

different burdens of proof for plaintiffs to recover.

Murray’s proposed rule would cause industry to be

less likely to fire unproductive employees. If that

happens, America can forget its economic supremacy.

Cf. Cameron Abadi, Adam Tooze: Why the Economic

Gap Between the U.S. and Europe Is Growing,

Foreign Policy (June 23, 2023), https://tinyurl.com/

452dvbj8 (explaining that the U.S. has now surpassed

the EU in economic power).

24

CONCLUSION

This Court should affirm.

Respectfully submitted,

John M. Masslon II

Counsel of Record

Cory L. Andrews

WASHINGTON LEGAL FOUNDATION

2009 Massachusetts Ave. NW

Washington, DC 20036

(202) 588-0302

jmasslon@wlf.org

August 14, 2023