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Whistleblower

Murray v. UBS Securities, LLC

On July 5, NELA joined the Anti-Fraud Coalition and Better Markets as amici in Murray v. UBS Securities, LLC, urging the U.S. Supreme Court to fully ensure safeguards against whistleblower retaliation. Petitioner Murray was fired after refusing to engage in illegal reporting and brought a case for unlawful retaliation under the Sarbanes-Oxley Act of 2002. Although Murray won at trial, the Second Circuit vacated the jury’s verdict, holding that to prove retaliation, Murray was required to show that UBS acted with retaliatory intent or discriminatory animus prompted by the whistleblowing activity.

Our amicus brief argues that the Second Circuit erred in its holding, which conflicts with both the plain language of the statute and the policy considerations behind the statute. The statute, which expressly provides that one alleging retaliation need only show that her protected activity was a ‘contributing factor’ in an adverse employment action, at which point the burden shifts to the employer to demonstrate, if possible, that it would have taken the adverse action even absent the protected behavior. Additionally, the congressional intent behind the statute was to ensure robust protections for whistleblowers. As the brief states, “The Second Circuit’s opinion below imposes an elevated burden on … Read More

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NELA Amicus Brief: Palmer v. Canadian National Railway & Illinois Central Railroad Company (ARB)

On August 3, 2016, NELA, joined by the Truckers Justice Center, Teamsters for a Democratic Union, and General Drivers, Warehousemen & Helpers Local No. 89, filed an amicus brief with the U.S. Department of Labor’s Administrative Review Board (ARB) in support of whistleblower complainant Kenneth Palmer in Palmer v. Canadian National Railway/Illinois Central Railroad Company.

In its order setting Palmer for en banc review, the ARB requested supplemental briefs from the parties and interested amici curiae addressing two questions: 1) In deciding, after an evidentiary hearing, if a complainant has proven by a preponderance of the evidence that his protected activity was a “contributing factor” in the adverse action taken against him, is the Administrative Law Judge (ALJ) required to disregard the evidence, if any, the respondent offers to show that the protected activity did not contribute to the adverse action? 2) If the ALJ is not required to discard all such evidence, are there any limitations on the types of evidence the ALJ may consider?

The amicus brief argues that the plain meaning of the applicable statutory text, the legislative history surrounding the adoption of the text, and the text’s purpose as part of a broader regulatory scheme … Read More

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NELA Amicus Brief: Abernathy v. Dept. of the Army (MSPB)

On February 8, 2016, NELA filed an amicus brief in Abernathy v. Department of the Army, MSPB Docket No. DC-1221-14-0364-W-1, pending before the Merit Systems Protection Board (MSPB).  NELA’s amicus brief was filed in response to the MSPB’s invitation for public amicus participation, published in the Federal Register at 81 Fed. Reg. 2,913-2,914 (January 19, 2016).

In its Federal Register notice, the MSPB had requested public input concerning whether both the protected activity and the reprisal had to occur while the victim was an employee or applicant for WPA coverage to apply. The MSPB also sought comments comparing the WPA’s coverage to coverage under USERRA, and whether or not WPA coverage of federal contractors would negatively impact coverage under certain other federal contractor whistleblower protection statutes.

The amicus brief was drafted by Alan R. Kabat of Bernabei & Kabat (Washington, DC); Andrew J. Perlmutter of Passman & Kaplan (Washington, DC); Kathryn S. Piscitelli of Kathryn S. Piscitelli, Attorney at Law (Orlando, FL) and Richard R. Renner of Kalijarvi, Chuzi, Newman & Fitch (Washington, DC). Matthew C. Koski, NELA Program Director (Oakland, CA), provided a detailed review of the draft amicus brief, which was also reviewed by Susan E. Jewell of … Read More

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NELA Amicus Brief: Lawson v. FMR LLC (U.S. Supreme Court)

NELA and the Government Accountability Project argue in this amicus brief that the remedial nature of the Sarbanes-Oxley Act (SOX) calls for broad and inclusive application, which is necessary to prevent a crisis in the mutual fund industry, such as the one that occurred in the banking sector in 2008. An interpretation of “employee” that limits coverage to employees of public companies would undermine SOX’s basic purpose. Publicly traded companies increasingly use a variety of contractual relationships to separate functions into organizations focused on those functions. These employees are in a position to expose corporate fraud. In the context of the mutual fund industry, all the employees would be without whistleblower protection under Section 806.

We further argue that an interpretation of the term “employee” to cover employees of private contractors and subcontractors is consistent with the plain text of the statute, the legislative history, the remedial purpose, and Department of Labor procedural regulations and policy implementing Section 806. A contrary interpretation would leave a significant number of employees unprotected.

Authors: R. Scott Oswald and Kellee Boulais Kruse (The Employment Law Group, Washington, DC), Richard R. Renner (Kalijarvi, Chuzi, Newman & Fitch, P.C., Washington, DC), Michael T. Anderson (Murphy Anderson … Read More

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NELA Amicus Brief: Day v. Department of Homeland Security (MSPB)

On February 28, 2013, NELA filed an amicus brief urging the Merit Systems Protection Board (MSPB) to give retroactive effect to provisions of the Whistleblower Protection Enhancement Act (WPEA) in Day v. Dept. of Homeland Security, MSPB Docket No. DC-1221-12-0528-W-1. At issue in this case was whether provisions of the WPEA which clarified the definition of protected whistleblowing applied retroactively to Mr. Day’s July 2010 disclosures. Section 101 of the WPEA reversed prior decisions by the MSPB and the U.S. Court of Appeals for the Federal Circuit (in particular, Huffman v. Office of Personnel Management, 263 F.3d 1341 (Fed.Cir. 2001)) to exclude disclosures made to an employee’s supervisor and disclosures made by employees within the scope of their normal duties from whistleblower reprisal protection. The issue for Mr. Day was whether the WPEA definition applied to his July 2010 disclosures, or if the pre-WPEA Huffman standard applied. If the Huffman standard applies, Mr. Day’s whistleblower reprisal claim could likely be dismissed; if Section 101 of the WPEA applies, Mr. Day’s claim could then proceed to hearing. An MSPB Administrative Judge applied the Huffman standard, but certified the case for interlocutory appeal to the MSPB on the question of … Read More

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NELA Amicus Brief: Lockheed Martin v. Department of Labor & Andrea Brown (10th Circuit)

Before the U.S. Court of Appeals for the Tenth Circuit in Lockheed Martin, Corp. v. Department of Labor & Andrea Brown (Case No. 11-9542), NELA filed an amicus brief on September 7, 2011, focused on two issues of law: 1) whether mail fraud, wire fraud, bank fraud, securities fraud, or violations of any Securities & Exchange Commission (SEC) rules are limited to fraud against shareholders, and 2) whether a whistleblower must recite the relevant statute and prove up all of its elements in order to enjoy certain legal protections. Our brief proposes that the answer to both questions is no.

Author: Michael T. Anderson (Murphy Anderson, PLLC)

… Read More
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