           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         February 13, 2008

                                     No. 07-60509                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


MARGOT GETMAN

                                                  Petitioner
v.

ADMINISTRATIVE REVIEW BOARD, UNITED STATES DEPT OF LABOR

                                                  Respondent



               Appeal from the United States Department of Labor
                              ARB Case No. 04-059


Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
           Margot Getman, a research analyst for Southwest Securities, Inc.
(“Southwest”), refused to recommend a high rating for a stock that she reported
on. Her supervisors questioned this decision in a meeting. She told them that
they could recommend a higher rating but that she would not sign on to the
report if they did so. The firm later terminated her. She filed a whistleblower
complaint with OSHA pursuant to Section 806 of the Corporate and Criminal
Fraud Accountability Act of 2002 (“Sarbanes-Oxley”). OSHA dismissed her


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 07-60509

complaint, and she requested an administrative hearing. An administrative law
judge’s recommended decision concluded that Getman engaged in protected
activity that contributed to her termination.     Southwest appealed to the
Administrative Review Board.          The Board held that Getman had not
participated in a protected activity. Getman moved for reconsideration, and the
Board denied the motion. She appealed to the Second Circuit; the Second Circuit
transferred the case to this court.
                                        I
      Margot Getman began working as an equity research analyst for
Southwest in 2000. She researched companies and wrote reports; Southwest
published these reports for their clients. Cholestech had requested a report to
distribute to potential investors, as it wanted to raise capital. In November
2001, Getman presented a report on Cholestech Corporation to Southwest’s
Review Committee. Getman did not include a company rating in her report on
Cholestech but indicated at the meeting that she would recommend a stock
rating of “accumulate” – a weak rating compared to the recommendation of
“strong buy.” The Committee questioned her decision, asking for the reasoning
behind her recommendation. At the end of the meeting, Getman told the
Committee that they could change the rating but that she would not sign on to
this change. She did not inform the Committee that she believed that changing
the rating would violate any securities law. Nor did anyone on the Committee
tell her to change the recommendation. On appeal, she alleges that she did not
raise concerns regarding the legality of a rating change because “[t]he very
people to who[m] Appellant might have complained or registered her concerns
were present at the Investment Committee Meeting.”
      After the meeting, Getman’s supervisor allegedly became hostile toward
her. Southwest terminated Getman in July 2002. In November 2002, Getman
filed a complaint with OSHA under Section 806 of Sarbanes-Oxley. OSHA


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dismissed her complaint, finding that Getman’s activity was protected but that
she had not proven that the activity contributed to her termination. She
requested a hearing under 29 C.F.R. § 1980.106. The ALJ held a hearing,
concluding in February 2004 that Getman had engaged in protected activity that
contributed to her termination. Southwest appealed to the ARB. The Board
issued a Final Decision and Order in July 2005, concluding that “Getman’s
unexplained refusal to change her recommended rating of the Cholestech stock
was not protected activity.” Getman moved for reconsideration in September
2005, and the Board denied reconsideration in March 2006. Getman appealed
to the Second Circuit in April 2006. The Second Circuit found improper venue
and transferred the case to this court in June 2006.
                                      II
      Sarbanes-Oxley applies to a limited category of protected activity,
providing,
      No [publicly-traded securities company] or any officer, employee,
      contractor, subcontractor, or agent of such 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 lawful act done by the employee--

      (1) to provide information, cause information to be provided, or
      otherwise assist in an investigation regarding any conduct which
      the employee reasonably believes constitutes a violation of section
      1341, 1343, 1344, or 1348, any rule or regulation of the Securities
      and Exchange Commission, or any provision of Federal law relating
      to fraud against shareholders, when the information or assistance
      is provided to or the investigation is conducted by--

      (A) a Federal regulatory or law enforcement agency;

      (B) any Member of Congress or any committee of Congress; or

      (C) a person with supervisory authority over the employee (or such
      other person working for the employer who has the authority to
      investigate, discover, or terminate misconduct); or

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                                       No. 07-60509

       (2) to file, cause to be filed, testify, participate in, or otherwise assist
       in a proceeding filed or about to be filed (with any knowledge of the
       employer) relating to an alleged violation of section 1341, 1343,
       1344, or 1348, any rule or regulation of the Securities and Exchange
       Commission, or any provision of Federal law relating to fraud
       against shareholders.1

Burdens of proof under Sarbanes-Oxley are governed by 49 U.S.C. § 42121(b)2
and its underlying regulations.             A complainant alleging a Section 806
whistleblower violation must make a prima facie showing that, inter alia, she
“provided, caused to be provided, or is about to provide (with any knowledge of
the employer) or cause to be provided to the employer or Federal Government
information relating to any violation or alleged violation”3 and that “(i) [t]he
employee engaged in a protected activity or conduct; (ii) [t]he named person
knew or suspected, actually or constructively, that the employee engaged in the
protected activity; (iii) [t]he employee suffered an unfavorable personnel action;
and (iv) [t]he circumstances were sufficient to raise the inference that the
protected activity was a contributing factor in the unfavorable action.”4
       The ARB accepted the ALJ’s findings of fact but concluded that Getman
had not



       1
           18 U.S.C. § 1514A(a).
       2
         See 18 U.S.C. § 1514A(b)(2) (establishing the regulatory procedures for “the handling
of discrimination complaints under section 806 of the Corporate and Criminal Fraud
Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act of 2002”).
       3
         49 U.S.C. § 42121(a)(1); see also 49 U.S.C. § 42121(b)(2)(B) (“The Secretary of Labor
shall dismiss a complaint filed under this subsection and shall not conduct an investigation
otherwise required under subparagraph (A) unless the complainant makes a prima facie
showing that any behavior described in paragraphs (1) through (4) of subsection (a) was a
contributing factor in the unfavorable personnel action alleged in the complaint.”).
       4
         29 C.F.R. § 1980.104 (setting forth “Procedures for the Handling of Discrimination
Complaints under Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002,
Title VIII or the Sarbanes-Oxley Act of 2002.”).

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                                        No. 07-60509

       “provid[ed] information]” at the meeting that she reasonably
       believed Southwest Securities was about to commit fraud against
       shareholders or some other securities violation. In our view, her
       unspecified “refusal” was not sufficient to “provide information” to
       a person with supervisory authority relating to a violation. In the
       context of a review committee meeting between an analyst and her
       supervisor, where disagreement over a rating may be a normal part
       of the process, the analyst must communicate a concern that the
       employer’s conduct constitutes a violation in order to have
       whistleblower protection.

Because Getman timely petitioned for review of an ARB holding, we review that
holding under “the standard established in the Administrative Procedure Act,”5
upholding the decision unless it is “‘arbitrary, capricious, an abuse of discretion,
or otherwise contrary to law.’”6 Whether Getman’s activity was protected
activity under Section 806 is a question of law that we review de novo. With or
without Chevron deference,7 we find no error.
       Getman argues that her activity was protected because “the circumstances
forced upon . . . [her] allowed only two courses of action; she could comply with
the committee by upgrading her rating and in doing so violate federal and
industry laws and regulations or she could refuse to upgrade her rating.” In her


       5
         Allen v. Admin. Rev. Bd., 2008 WL 171588 at *6 (5th Cir. Jan. 22, 2008) (citing 5
U.S.C. § 706; 49 U.S.C. § 42121(b)(4)(A); 29 C.F.R. § 1980.112(a)); see also Macktal v. United
States Dep’t of Labor, 171 F.3d 323, 326 (5th Cir. 1999).
       6
           Allen, 2008 WL 171588 at *6 (quoting Williams v. Admin. Rev. Bd., 376 F.3d 471, 475
(2004)).
       7
         We have not addressed Chevron deference in the context of an ARB decision on
Sarbanes-Oxley. It appears that Chevron deference is due, as the ARB is an adjudicative body,
but we leave that question for another day. See United States v. Mead, 533 U.S. 218, 226-27
(2001) (holding that “assuming that administrative implementation of a particular statutory
provision qualifies for Chevron deference when it appears that Congress delegated authority
to the agency generally to make rules carrying the force of law, and that the agency
interpretation claiming deference was promulgated in the exercise of that authority.
Delegation of such authority may be shown in a variety of ways, as by an agency’s power to
engage in adjudication.”).

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hearing, however, she testified that the members of the committee did not ask
her to upgrade the rating;8 rather, they questioned her opinion and asked her to
explain why she recommended the lower rating. Furthermore, she concedes that
she never expressed her belief that changing the rating would violate securities
law. Her indication at the meeting that the committee could change the rating
but that if it did so, she would not sign on to the report, could have meant that
she did not believe that the company deserved a higher rating and would not
agree to a report that suggested otherwise.
       Because the committee did not express an intent to change the rating, and
Getman never expressed a belief to any supervisor that changing the rating
would violate any securities laws, we cannot read any protected activities into
her behavior. Since her behavior was not protected, we need not review whether
her protected activity contributed to her termination.
       AFFIRMED.




       8
         See In the Matter of Margot Getman v. Southwest Securities, Inc., U.S. Department of
Labor Final Decision and Order, ARB Case No. 04-059. “Q: ‘Mr. Hultgren didn’t ask you to
upgrade your accumulate rating – claimed accumulate rating from accumulate to buy, did he?’”
“A: ‘He didn’t tell me to.’” “Q: ‘All right. Any of the other people you claim were present at this
review meeting, Mr. Tangun, did he ask you to upgrade your rating from accumulate to buy?’”
“A: ‘If he did, I don’t remember that, no.’” “Q: ‘Okay. Kit Case, was he present at this
meeting?’” “A: ‘I believe him to be present.’” “Q: ‘All right. Did he ask you to upgrade your
rating from accumulate to buy?’” “A: ‘I don’t believe so.’” In response to each subsequent
question about each member present, Getman responded that the member did not ask her to
upgrade the rating.

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