costs and one operating unit fifteen employees were laid off including the complainant mistaken in her subunit of seven employees she was one of four employees who were laid off three were retained so less than half as we've explained in our belief briefs the agency decisions holding northrop grumman liable under section fifteen fourteen a of sarbanes oxley are rife with legal errors and many demonstrably errors of fact but the heart of the case is the arm holding the mistaken engaged in sox protected activity defends only one theory of protected activity on this appeal and that is the proposition that it was objective be reasonable for ms sagan to believe that north grumman was trying to trick her into agreeing to arbitrate sox whistleblower claims by requiring her to execute a standard conflict of interest form and to agree to abide by a corporate ethics policy that apply to every department of labor does not contend that northrop roman's ethics forms or its ethic policies actually did incorporate its arbitration policy nor does the department of labor contend that the arbitration policy actually did require arbitration of sox whistleblower at the policies if we can this morning deal was really their only contention is that a person in her with her education and training could reasonably have believed that the policies did so provide and i want to use my time today to focus on what is clearly wrong on it why that's clearly wrong for two independent reasons there's a lot of spaghetti has been thrown at this wall i think if we pull on these two strands it'll it all falls off basically  r let me just ask you a couldn't employees objection to a company's arbitration policy ever form the basis of a sox whistleblower complaint in your view we don't think so your honor for the reasons we've explained that we don't think section fifteen fourteen a eat is appropriately considered within section fifteen fourteen a a one which lists six categories we explain in our briefs right why we think you're not trying to decide what i'm getting at is you're not trying to distinguish this case from you might concede could be other meritorious cases you're just saying absolutely this kind of case could not and objection to an arbitration policy could not ever we say both things your honor it couldn't fit but the important thing and the thing i really want to focus on this morning is that this case is under no circumstances could anybody reason to believe that this policy violates fifteen fourteen and that's really the key the key thing we kind of got off on a wild goose hunt on this case where the first brick in the wall is missing and that's the that's the proposition that this policy violates fifteen fourteen eight and i think once you recognize that it can't possibly then all the rest of it becomes refusal to sign the forms wasn't protected because for a number of reasons the one you mention but more foundationally because the policy clearly didn't violate sox if the policy didn't violate sox then none of this in all of these inquiries matters at all because there is no violation of fifteen fourteen a e the only basis that the labor department asserts here your honor for a violation of sox at all is the idea that this policy could reasonably be thought while it fifteen its face it doesn't apply where prohibited by law there's just no rational basis for this entire inquiry so we start piling all these sticks on top of that empty foundation there's just no case in direct answer to your question your honor there was nothing sudden about all this miss miss sagan had been refusing to comply with this basic simple ethics policy for years once the virginia supreme court once the virginia policies are irrelevant to your objections arbitration because it's been held conclusively that you're bound by virtue of your employment to the arbitration policy so just sign these forms and at the time they said that they said has nothing to do with arbitration not for a minute but for nine months she walked out of the meeting in which northrup grumman tried to sit down with her and explain look just signed the conflict of interest for let's go through the questions do you have a problem she wouldn't talk to them she walked out and that at that point they said ok we'll give you a month we'll give you ten days to do this sign it if you don't you'll be suspended then you'll have another thirty days if you don't you'll be dismissed finally through that process she signed form and ultimately she was riffed for other reasons they could have dismissed for refusing to sign a form your honor it wasn't protected activity is an ethics policy sachs would want compan apparently that's the part of labor's position where the part of liberty has to have a reasonable basis for that position your honor if if if if it's not objective we reasonable to take that view then it can't form the basis of a sachs complaint and here it's not doesn't but even more foundational as i said to judge keenan a minute ago even if that arbitration policy somehow does come within one of those six buckets and it doesn't but even if it did this policy can't reasonably be thought to violate it and it's just all you have to know to know this is not objective be reasonable is two things one a simple legal point into a simple undisputed factual point and let me just go to those two things if you understand these two things you can't reasonably believe with a college education and all that you say can hand can't reasonably believe this is a violation the first thing is that fifteen hundred eighty prohibits the application of predisposed arbitration clauses to sox will support that's a given nobody is disputing that in fact it's the foundation of missing claim is that an arbitration policy that applies to sox whistleblower claims is prohibited by law she contends this policy that would deal well says this whole case is rested on he said she could reasonably believe that if you contend that a arbitration policy violates socks you have to believe that it is prohibited by law for a policy to apply to a sox whistle clearly she knows that second for a reasonable person to believe in an arbitration policy violate sox she has to read the policy to see if it applies on the second page you're talking about what policy this is the arbitration at fifteen thirty four the policy begins at fifteen thirty five the second page it to dress is claims covered you have to look at what claims are covered to decide whether it applies to socks was and right there in the fourth paragraph it says the program does not apply to or cover claims as to which an agreement to arbitrate such claim is prohibited by law sentence really when you look at the policy which you have to do to understand that it doesn't it is certainly not reasonable nonobjective be reasonable to take the position that a policy violates a statute when the policy says it does not apply violate statute if it's reasonable to think that your honor nothing's on reason and that and the critical threshold factor that separates every employment dispute from a sox whistleblower dispute is gone because you can believe anything fourteen in a works is that the a one listing of activities that create a whistleblower violation was clear that if you include those six all others are excluded so do you see the any arbitration provision then affectively is for lack of a better word some sort of an affirmative defense to certain if the employer sought to require arbitration on a prohibited circumstance it certainly could be i mean you could certainly take the position that shareholder fraud we cite cases that say no to be within that bucket you have some to do with fraud well there's nothing to do with fraud you know arbitration arbitron realty claim so we just think it's not in there but the thing i really think is important is for this court to reject the arb's conclusion that a policy like this could conceivably be thought to violate fifteen eight eat anyway even if it were one of the predicate claims because it doesn't and nobody who understands that fifteen fourteen a eeprom its application of the policy to a stock whistleblower claims and understands that this policy doesn't apply were prohibited by law ipso facto can't escape the conclusion that there's no violation and it's important that you hold that and that you strike that down because otherwise every company that has a reasonable arbor lawful arbitration policy like this is at risk of having to pay damages whenever somebody thinks irrationally the policy does  refuses to take some reasonable action i'm not really so on your a one argument we necessarily get to saying anything about you can resolve it either way your honor you could rule our way and say well look this whole case hinges on fifteen fourteen a being within fifteen fourteen a one and it doesn't and that's the end of it because their whole case is fifteen fourteen or you could say even if it were in there this policy obviously doesn't violate fifteen fourteen a and for more beyond that you can make the point that the judge bought a bomb made earlier on that these simple ethics policies don't say anything about arbitration the l j and the arb recites completely wrongly that the conflict of interest form form c one ninety six refer references and incorporates the arbitration policy well if you look at policy that is referenced the standard business conduct policy the basic ethics policy of the of the company says nothing about arbitration or h one over three and either so it was irrational for her mistaken to believe there was a link irrational for her to refused by with these simple ethics policies for years and for months on that and the company told her this company was very  her it doesn't have anything to do with it just please sign it she refuse if you look at them at the language of c one ninety six nothing about arbitration look at the language of eight to ten which is the standard business conduct nothing about arbitration there the word procedures is used ethics procedures look at the ethics procedures the standard ethics form says look at look at the ethics procedures in ms sagan thought that because if you use the word procedures that that was somehow invok with arbitration seeders well it was just completely irrational particularly when the company told her that so one these forms no rational person no reasonable person would believe these forms incorporated any order tradition policy but even if they did the arbitration policy no reasonable person could think the arbitration policy violated fifteen a and no good lawyer would conclude that fifteen a e was incorporated within fifteen a one so it fails at purpose of promoting reporting a shareholder fraud that's all that it relates to and so complaints about violations of the provision itself have to be included in the broad language that that congress wrote  complaints about shareholder fraud and that policy was mandatory arbitration permission so it might be easier to understand maybe the more typical context in which this comes up so if i'm an employee complained that other employees have been fired because they were reporting shareholder fraud that complaint itself wouldn't be about shareholder front it would be about a whistleblower protection provision because other employees were were fired for complaining about fraud and that would  agreements are from are forcing employees arbitrate their stocks whistleblower claims as part of congress this seems to promote reporting of shareholder fraud approved it seems to me like you're putting the cart before the courts you're saying because there is a an arbitration agreement a mandatory arbitration provision that in case in the future there are some shareholder fraud related to any protected activity then i wouldn't be able to take it to court and seek remedies but i don't see any connection here to shareholder fraud it seems to me that it's this whole thing is premised on the fact that her objection is to arbitration independent of anything to do with fraud and the chase kind that the what you have here is kind of latching on to the word arbitration in the in the act here without anything to do with fraud whatsoever in this case your honor as a legal matter this is the scheme that congress created to encourage reporting usher order fraud and if it's not functioning and it doesn't operate then employees might never come forward with their complaints and the point of the provision is to ensure that they feel comfortable coming forward so getting back into the judge's point then are you saying that any mandatory arbitration provision is a violation of the sox whistleblower protection provision i mean that would be pretty sweeping but it seems to me that's almost what you have to be saying in this case we are simply saying that a complaint about a requirement to arbitrate claims under the sox whistleblower protection provision constitutes a complaint about a violation of that provision and the fact can be protected understood how to correctly explain the legal implications and then legal intricacies of how her complaint constituted protected activity but what we're saying is that because her complaint was that she was objecting to mandatory arbitration and that if mandatory arbitration by socks or claims under the socks was for protection provision that would be a violation of federal law relating to product and shareholders that that can protected activity that the with the blurb protection provision itself has to be included in a broad phrase any provision of law related to product and squatters that's all it's about is promoting a complaint about fraud so i'm still just lost as to hell having an arbitration provision creates fraud in some way it doesn't create fraud your honor it could with in the stench that's all six zero all right you don't get any more congressmen at a hundred if it wants to but you've got to fire one of the six and i think only this catch all relating to fraud to get shareholders is the only one you've got and we keep plowing and reply on the screen as to how you get from an arbitration provision to occurred or it might be it's fraud we wouldn't know about because employees don't feel free to report their claims of fraud because they're dissuaded by their company not following the protections that are provided by the with the protection  protection complain about a violation of the whistleblower protection provision could be protected activity in this instance we're asking simply whether there was evidence to support the l g s finding witness and when reasonably believed that she was asserting  implicate the arbitration provision the question is whether mr when reasonably believed that it did has no question that she subject subjectively believe that by refusing to sign a form she was objecting to the arbitration provision the question is whether she was objectively reasonable for her to believe that and what is the language in the form that you wrote to support her reasonable belief that it was related to arbitration your honor we're not relying on language we're relying on the factual circumstances of the whistle pointed to the fact that she is not an attorney she doesn't have legal training she's right but she was reading the form and then became concerned so i've seen that maybe you could give us the language in the form that with regard to object of reasonableness for that you properly looked at the factual circumstances of the whistleblower and missed that one doesn't have the legal expertise to understand all of the implications of the forms that she's asked to sign for us the it might be clear of course you look to the language and you read thoroughly and you find the provisions that matter but that's something we are all trying to do and she isn't and he also he also pointed to the fact that you noted that northrup grumman tied permission not to sign a form to the tendency of her litigation regarding arbitration and so it seemed that they were reinforcing her belief and information that a whistleblower receives from her superiors and i and others with more expertise is just the sort of fact that this court has relied on in previous cases and in assessing a reasonable objectiveness determinations for example in the deltec versus department of labor case the algae was looking at the kinds of factors that it's appropriate to look at and again i respectfully remind your honour's that the question is if you looked at this evidence what outcome would you reach or rather could any rational fact finder reach the finding that they did and there is that it's in the record to support his conclusion policy there was a list of factors that she was included she didn't include years of service which is one of the factors on the list that have happily favored msec when she have only waited conduct which is a factor that disfavor missa when and she got to decide how the riff would be designed and the way that she designed it disfavored missa when and the a l j did not find her to be a credible witness and he did not credit her explanation that the riff was neutral and it just so happened that have to never mention anything that wouldn't be the right thing to rely on it simply has to bear the the right relationship to find facts that allow the application of the correct legal test and ultimately that is what the a l j did and it particular in the standard that mr ball judge on didn't interpret it that way and if so is it proper for us to consider an argument that your honor the a l j does say fifteen fourteen eight he several times in the opinion and does refer to the change in the law under dot frank his his decision does not have to be perfectly clear  particularly on a legal issue for for us to defend the correct legal outcome i think that this this can legal conclusion that complaints of violence about violations of the whistleblower protection law is contained in one place in the united states code frog law is scattered throughout and you wouldn't say in this chapter and moreover leaving out in this chapter makes it broader it shows the congress was the tempting to be all encompassing of statutes that have to do with fraud honour's again just switched back clear mind the court that even if they could have reached different conclusions as to some of the factual questions raised in this case and even if this court would have made different findings of presented with the same errors that are foundational and then make clear that this case should never have gotten to first base you can get way around the bases but but it should never have gotten to first base we should never have had all this litigation should never have gone on all this time judgment should have been directed at the very outset for northrop grumman for a host of reasons and really the heart of this and what's really important is to get right what protected activity is under the statute because of protected activity is so broadly somebody wrongly says sachs and you really have to put a stop to that and i think the first place to put a stop to it is when you're focused on which is fourteen fifteen fourteen eighty is simply not within the six pockets of fifteen fourteen a one for the reasons that you discussed it is a very important point this last when we were talking about that other whistleblower provisions passed by congress for sight that any any complain about a violation of this chapter is protected that is not what sachs says it focuses on six things and the catch all provision as you put it is not an unlimited there's a catch opposition as you provision that focuses as you rightly says there's a similar provision of air twenty one i believe was your response to that i believe that that's one of the statutes in which there is there is a specific reference to violations of this chapter which is a different kind of provision than the one we have here if congress had wanted to do what you know well says it could have put such a provision in any violation of this chapter and then somebody could argue i mean i judge i made a good ask a good question as to whether this is such a statute is it even a violation of anything wouldn't it just be something that would a judge would say well this is an arbiter ball under the law but it lets you know as a violation it's not within the zone more fundamentally as as as i think judge keenan to this isn't a violation of fifteen fourteen eight easy for the reasons we talked about it's not in the ethics documents and the arbitration policy isn't in the ethics documents and the arbitration policy does not prohibit does not require arbitration of sox claims one sentence tells you that and it's the sentence you have to read if you're trying to contend that this does violate so your honor we would urge you to focus on those grounds they require entry of judgment for northrop grumman we shouldn't continue to litigate this case it should be it should be ended here thank you so much like trogdon we will come down and agree counsel and then move on