SCOTUS OPINION REVIEW: Murray v. UBS Securities (22-660)


"Certainty is an illusion ..."
Honoured Citizen
In this case, the Court is dealing with whistelblower protections in the Sarbanes-Oxley Act of 2002. These provisions are designed to support employees who come forward to disclose wrongdoing on the part of their employer from retaliatory employment actions (dismissal, reduction in pay, reduction in rank/responsibility, unfavorable changes in working conditions, etc.) as a matter of good public policy. Simply put, we want people to come forward and report it when their employer is breaking the law or doing other things that are against the public interest, and to make that more likely the law protects individuals when they do those things.

The specific question presented in this case was just how much has to be demonstrated by a whisteblower in order to secure the protections of the act. The provision as an initial step requires that the whistleblower show that whatever action they took as a whistleblower was a "contributing factor" in the negative employment action they faced. If that can be demonstrated, the burden of proof shifts to the employer to show that even if the action was a contributing factor, the end result would have been the same - in other words, the employer faces no penalty if they can show that even without the whistleblowing activity the employee was going to face the same consequences (perhaps by demonstrating a string of negative performance reviews or corrective actions, etc.). In this case, the employer argued that to face consequences under the act, whistleblowing activity must be not just a contributing factor in a negative employment decision but that the employment decision was actually made with retaliatory intent - a much harder burden to prove for a whistleblower. The Second Circuit Court of Appeals endorsed this additional requirement in its opinion below, putting it in conflict with the Fifth and Ninth Circuits, which have both previously ruled that retaliatory intent was not a requirement for a whistleblower to recover.

Writing for a unanimous Court, Justice Sotomayor - after laying out the history of the case and the basic underlying law - gets into a discussion of what "retaliatory intent" would mean with regard to the whistleblower provision, and indicates that the Court has defined it as behavior driven by some kind of animus toward the whistleblower. Forcing the plaintiff in one of these cases to prove such retaliatory intent would make it very difficult for them to win a case, however, and has never been required - hence the burden shifting process laid out above. The suggestion by the defendant that retaliatory intent must also be proven therefore runs afoul of the careful balancing process that was established in the whistleblowing provisions by Congress. Sotomayor also cosplays as Justice Gorsuch and does some textual analsysis, noting that the phrase "contributing factor" used in the statute is very broad, and that it encompases the idea of "retaliatory intent" but also goes much further.

The last paragraph of analysis in Sotomayor's brief lays all of this out nicely:

To be sure, the contributing-factor framework that Congress chose here is not as protective of employers as a motivating-factor framework. That is by design. Congress has employed the contributing-factor framework in contexts where the health, safety, or well-being of the public may well depend on whistleblowers feeling empowered to come forward. This Court cannot override that policy choice by giving employers more protection than the statute itself provides.

Justice Alito wrote a concurrence, joined by Justice Barrett, that simply reiterates the way the statute works. He emphasises that intentionality is still required - the employer must intentionally be taking whatever action was taken ... but that no animus is required. Alito clearly thinks he smells some kind of trap in this majority argument and is seeking to cut it off be delimiting metes and bounds, but really he's just saying what the majority opinion already said.

As for my prediction after oral argument in this one ... well I'll give myself an A-. I did hedge a little, saying while I expected a 9-0, 8-1, or 7-2, I also said that if anyone defected it would be Alito or Thomas. While Alito didn't actually defect, he did file his silly concurrence ... although it is a little surprising it was Barrett, and not Thomas, joining him. In any case, this was a pretty straightforward case with a pretty straightforward result.