Argued: March 21, 2019
Petition for Review of the Orders of the United States
Department of Labor, Administrative Review Board. (15-038;
15-040; 16-014), (15-038; 16-014)
William Ogden, WILMER CUTLER PICKERING HALE AND DORR LLP,
Washington, D.C., for Petitioner.
Kay Marcus, UNITED STATES DEPARTMENT OF LABOR, Washington,
D.C., for Respondent.
Lincoln O. Bisbee, P. David Larson, MORGAN, LEWIS &
BOCKIUS LLP, Washington, D.C.; Kelly P. Dunbar, Emily F.
Gomez, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington,
D.C., for Petitioner.
S. O'Scannlain, Solictor of Labor, Jennifer S. Brand,
Associate Solicitor, William C. Lesser, Deputy Associate
Solicitor, Megan E. Guenther, Counsel for Whistleblower
Programs, Office of the Solicitor, UNITED STATES DEPARTMENT
OF LABOR, Washington, D.C., for Respondent.
AGEE, KEENAN, and QUATTLEBAUM, Circuit Judges.
QUATTLEBAUM, CIRCUIT JUDGE:
2002, Congress passed the Sarbanes-Oxley Act
("SOX"). SOX provides several provisions protecting
shareholders in public companies, including whistleblower
protection. The whistleblower protection provision prohibits
employers in public companies from firing an employee for
providing information to a person with supervisory authority
over the employee relating to mail fraud, wire fraud, bank
fraud, securities fraud, a violation of any SEC rule or
regulation or fraud against shareholders.18 U.S.C. §
case involves the scope of SOX's whistleblower protection
provision. Intervenor Crisell Seguin alleges that she was
terminated by Northrop Grumman Systems Corporation
("Northrop") in violation of 18 U.S.C. §
1514A. Because we conclude that Seguin does not qualify for
whistleblower protection under 18 U.S.C. § 1514A, we
vacate the administrative orders and remand the case with
instructions for the dismissal of Seguin's complaint and
entry of judgment for Northrop.
requires an employee asserting a whistleblower claim to
establish: (1) the employee engaged in a protected activity;
(2) the employer knew or suspected that the employee engaged
in a protected activity; (3) the employee suffered an adverse
action; and (4) the circumstances were sufficient to raise
the inference that the protected activity was a contributing
factor in the adverse action. 29 C.F.R. §
1980.104(e)(2). To show that she engaged in protected
activity, an employee must show that she had a subjective
belief and an objectively reasonable belief that the conduct
she complained of violated one of the six enumerated
categories of § 1514A(a)(1). Welch v. Chao, 536
F.3d 269, 275 (4th Cir. 2008). Those categories are mail fraud,
wire fraud, bank fraud, securities fraud, any SEC rule or
regulation or any federal law relating to fraud against
shareholders. Significantly, all six categories relate to
fraud. See, e.g.¸ Livingston v.
Wyeth, Inc., 520 F.3d 344, 351 n.1 (4th Cir. 2008).
requirement that the information provided relate to one of
the six specified categories is crucial. The whistleblower
protection provision does not extend protection to every
employee complaint about possible improper or even illegal
conduct. The provision prohibits retaliation only if the
employee provides information regarding conduct that he or
she reasonably believes violates one of six categories listed
by Congress in § 1514A(a)(1). Villanueva v. United
States Dept. of Labor, 743 F.3d 103, 109 (5th Cir.
these legal principles in hand, we turn to the facts and
procedural history of this case. Although Seguin's
alleged protected activity occurred in 2011, the origins of
Seguin's complaints against Northrop can be traced back
to 2007 when Seguin filed suit against Northrop in Virginia
state court. In this defamation suit, Seguin alleged that her
supervisor at Northrop knowingly and recklessly made false
statements about her in a performance review. In response to
Seguin's lawsuit, Northrop filed a motion to compel
arbitration pursuant to its arbitration policy. The Virginia
state court granted Northrop's motion.
appealed the state court's order to the Supreme Court of
Virginia, arguing that Northrop's arbitration policy was
not binding on her because she never accepted the arbitration
policy. The Supreme Court of Virginia dismissed Seguin's
appeal for lack of jurisdiction and denied her petition for
rehearing. Seguin's ...