Amicus briefs address OSHA complaints and protected activity

My colleague, Stephen M. Kohn (Executive Director of the National Whistleblowers Center) and I spent New Year’s Eve racing the clock to file two friend-of-the-court “amicus” briefs with the Department of Labor’s Administrative Review Board (ARB). Last November, the ARB issued an invitation to file amicus briefs to address a series of questions about the requirements for valid whistleblower complaints. In an amicus brief on behalf of my client, Douglas Evans, we answered the questions about the whether whistleblower complaints to OSHA have to meet the standards for pleading claims in federal court, and what procedure Administrative Law Judges (ALJs) should follow before considering whether to dismiss a claim without a hearing. In a separate amicus brief on behalf of the National Whistleblowers Center (NWC), we answer the questions about the scope of protected activity under the Sarbanes-Oxley Act (SOX). Specifically, we trace the long history of Department of Labor and court decisions that broadly applied a variety of whistleblower protections. We note how Congress relied on the body of law when it enacted SOX. We argue that the ARB and Court decisions of the last five years made a mistake, and violated congressional intent, by narrowing the scope of protection. We specifically ask the ARB to reject the requirement that protected activity must “definitively and specifically” relate to a violation of law. We examine the difference between raising concerns outside of established channels, and the “exceptionally broad” protection that activity has when it is pursued through established channels. We also dispute the claim that SOX claims should connect to some “fraud” or meet some standard of “materiality.” Finally, we show that the concerns raised by Ms. Kathy Sylvester and Ms. Theresa Neuschafer (breaches of Good Clinical Practices or GCPs) are at the core of Parexel’s business as set out in its Form 10-k, and is, therefore, material.

These briefs would be a good reference for any whistleblower or lawyer facing a challenge to any whistleblower claim on grounds of pleading standards, or the scope of protected activity. Enjoy the new year.

You can also read the brief of the U.S. Chamber of Commerce which fails to consider the full history of whistleblower protection, and focuses on the recent cases that agree with the Chamber’s argument that protection should be narrow. I was pleasantly surprised that the Chamber would say, on page 1, “The Chamber’s members have a strong interest in the fair and efficient enforcement of the Sarbanes-Oxley whistleblower provision to accomplish its essential goals.”

Attorneys for Ms. Sylvester and Ms. Neuschafer also submitted a brief. These Maryland attorneys include E. Patrick McDermott of Annapolis, David C. Weaver of Frederick, and Brett Dieck of Marriottsville. The Securities and Exchange Commission (SEC) filed their own amicus brief.

Readers of this blog might recall an earlier post that explains why my client Douglas Evans would be so interested in the ARB’s consideration of pleading standards. The Ninth Circuit last week stayed his petition for review to await the ARB’s decision on this case.

The ARB has scheduled an oral argument on these issues for January 18, 2011, at 10:00 a.m. at the Francis Perkins Building, the headquarters of the U.S. Department of Labor in Washington, DC. This will be the ARB’s first oral argument under the present administration. Hopefully, we will have a better idea of the Board’s thinking after that oral argument. The case is Sylvester v. Parexel International, ARB Case No. 07-123.

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