FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NICHOLAS P. TIDES and MATTHEW 

CRAIG NEUMANN, No. 10-35238

Plaintiffs-Appellants, D.C. No.  v. 2:08-cv-01601-JCC

THE BOEING COMPANY, OPINION

Defendant-Appellee. 

Appeal from the United States District Court

for the Western District of Washington

John C. Coughenour, District Judge, Presiding

Argued and Submitted

April 15, 2011—Seattle, Washington

Filed May 3, 2011

Before: Andrew J. Kleinfeld, A. Wallace Tashima, and

Barry G. Silverman, Circuit Judges.

Opinion by Judge Silverman

5755
COUNSEL

John T. Tollefsen (argued), Tollefsen Law PLLC, Lynnwood,

Washington, for the plaintiffs-appellants.

Jonathan P. Harmon (argued), and Eric B. Martin, McGuireWoods, LLP, Richmond, Virginia, for the defendant-appellee.

Stephen M. Kohn (argued), Kohn, Kohn & Colapinto, P.C.,

Washington, D.C., for amicus curiae the National Whistleblowers Center.

OPINION

SILVERMAN, Circuit Judge:

We hold today that by its express terms, the whistleblower

provision of the Sarbanes-Oxley Act, 18 U.S.C.

§ 1514A(a)(1), protects employees of publicly-traded companies who disclose certain types of information only to the

three categories of recipients specifically enumerated in the

Act—federal regulatory and law enforcement agencies, Congress, and employee supervisors. Leaks to the media are not

protected. 

I. BACKGROUND1

In January 2007, plaintiffs Matthew Neumann and Nicholas

Tides began working as auditors in Boeing’s IT SarbanesOxley (“SOX”) Audit group. Tides worked in St. Louis, and

Neumann was based in Seattle. At the time, the IT SOX Audit

group was one of two departments housed within Boeing’s

1Because Tides and Neumann appeal from an order granting Boeing

summary judgment, we set forth the relevant facts in the light most favorable to them. See Chuang v. Univ. of Cal. Davis, Bd. of Tr., 225 F.3d

1115, 1120 n.3 (9th Cir. 2000). 

5758 TIDES v. THE BOEING CO.
Corporate Audit organization. It was charged with helping the

company comply with SOX’s requirement that it annually

assess the effectiveness of its internal controls and procedures

for financial reporting. See 15 U.S.C. § 7262(a). Auditors in

the IT SOX Audit group performed audits and testing on

information technology controls.2 The group was staffed with

about ten Boeing employees, including Tides and Neumann,

and supplemented by approximately seventy contract auditors

from the accounting firm PriceWaterhouseCoopers. Deloitte

& Touche served as Boeing’s external auditor and was

responsible for annually attesting to, and reporting on, the

company’s assessments of its internal controls, as required by

SOX. See id. § 7262(b). 

Tides and Neumann claim that tensions were high in the IT

SOX Audit group upon their arrival in January 2007 because

management feared that Deloitte & Touche might declare a

“material weakness” in the company’s internal controls. They

allege that managers pressured IT SOX auditors to rate Boeing’s internal controls as “effective” and fostered a generally

hostile work environment. Beginning in February 2007, Tides

and Neumann began separately expressing concerns about

this perceived pressure and several deficiencies in Boeing’s

auditing practices that they viewed as potential violations of

SOX. Their primary concern related to Boeing’s use of PriceWaterhouseCoopers contractors in the internal auditing of the

company’s IT controls. Tides and Neumann repeatedly complained to management about the practice of giving the contractors managerial authority over Boeing employees, as well

as the involvement of the contractors in both the design and

audit of Boeing’s internal controls. They also expressed concerns about the integrity of data stored in the software system

Boeing used to record its IT SOX audit results. Both auditors

2An information technology (“IT”) control is a policy or procedure

implemented by a company to ensure the confidentiality and integrity of

its IT functions, such as a procedure requiring the testing and approval of

software before installation on a company computer. 

TIDES v. THE BOEING CO. 5759
believed that the system permitted unauthorized users to alter

the ratings given to the company’s internal controls. 

At some point in late April 2007, Andrea James, a reporter

with the Seattle Post-Intelligencer, left messages on Tides’

and Neumann’s work phones asking each of them to speak

with her about an article she was writing on Boeing’s compliance with SOX. Neither Tides nor Neumann immediately

responded to her requests, hoping instead to resolve their concerns internally with the help of management and human

resources. At the time, both were aware that Boeing had in

place a policy that restricted the release of company information to the news media. Boeing’s policy, PRO-3439, required

employees to refer “[i]nquiries of any kind from the news

media” to the communications department and also prohibited

the release of company information without prior review by

that department.

In late May 2007, James contacted Neumann again, this

time showing up uninvited at his home with another PostIntelligencer reporter. Neumann agreed to speak with them

about Boeing’s compliance with SOX. He described the pressure he felt to render positive audit results and detailed a

recent meeting where he and other IT SOX auditors expressed

concerns over the role of PriceWaterhouseCoopers contractors in audits of Boeing’s internal controls. James asked Neumann if he knew of any examples of significant deficiencies

in Boeing’s internal controls going unreported or of any auditors being instructed to change their findings, but he said he

didn’t know of any specifics. Several days after their meeting,

James emailed Neumann an excerpt of a draft of her article.

Neumann responded that the excerpt looked good and sent

James the text of an email that he and other IT SOX auditors

recently received from a manager. The manager’s email

reminded employees that Boeing policy prohibited the release

of information to the media without prior approval from the

communications department. 

5760 TIDES v. THE BOEING CO.
Tides contacted James in July 2007 after receiving what he

viewed as a negative and unsubstantiated performance evaluation for the second quarter of the year. He forwarded her a

series of work-related emails from his Boeing computer. Most

of the emails documented the concerns he previously raised

with management and human resources regarding perceived

problems with the IT SOX Audit group’s auditing practices.

Tides also forwarded James several internal Boeing documents, including copies of the company’s policies governing

contract labor. 

On July 17, 2007, the Post-Intelligencer published the article “Computer security faults put Boeing at risk,” co-authored

by James. The article reported that “[f]or the past three years,

The Boeing Co. has failed, in both internal and external

audits, to prove it can properly protect its computer systems

against manipulation, theft and fraud.” It detailed, among

other things, a threatening company culture perceived by

employees involved in SOX compliance, a record of poor

internal audit results indicating that many of the company’s

computer system controls were failing, and an internal allegation that audit results were being manipulated. 

At some point prior to the publication of the PostIntelligencer article, Boeing caught on that several employees

were likely releasing company information to the media. As

a result, it authorized an investigation that included the monitoring of both Tides’ and Neumann’s work computers and

email accounts. The investigation revealed that the two auditors were communicating with James without permission.

Two months after the publication of the Post-Intelligencer

article, Tides and Neumann were interviewed separately by

HR investigators about their communications with James.

Both admitted to speaking with her about Boeing’s auditing

practices and to providing her with company documents.

After the interviews, Boeing suspended Tides and Neumann

indefinitely. Their cases were then referred to an Employee

Corrective Action Review Board, a committee composed of

TIDES v. THE BOEING CO. 5761
five voting members and one non-voting ethics advisor to

evaluate charges of employee misconduct. After reviewing

the applicable Boeing policies and the investigative reports

detailing the two auditors’ contacts with the media, the Board

unanimously voted to terminate Tides and Neumann effective

September 28, 2007 and October 1, 2007, respectively. Both

were later informed in writing that:

It has been determined that you created an unacceptable liability for the Company. Specifically, you violated PRO-2227, Information Protection, by

disclosing Boeing information3 to non-Boeing persons without following appropriate procedures,

obtaining necessary approvals and putting in place

appropriate safeguards. In addition, you violated

PRO-3439 by not referring inquiries from the news

media to Communications, and by releasing information without approval in accordance with the

requirements of said PRO. Your actions are aggravated by the fact that the information had an adverse

effect on the Company’s reputation and its relations

with its employees, customers, shareholders, suppliers and other important constituents, causing significant liability. The Company deems your behavior in

this incident as unacceptable and in violation of its

expectations as defined in PRO-1909.

Following their terminations, Neumann and Tides filed

SOX whistleblower complaints with the Occupation Safety

and Health Administration4 on December 21, 2007 and

3PRO-2227 defines “Boeing information” as “all non-public information that is owned by Boeing.” Under the policy, “[a]ll Boeing information

is presumed to have value and be proprietary, confidential, and/or trade

secret information.” 

4The Secretary of Labor has delegated responsibility for receiving and

investigating whistleblower complaints to OSHA, an agency within the

Department of Labor. See Day v. Staples, 555 F.3d 42, 53 n.4 (1st Cir.

2009); 29 C.F.R. § 1980.103(c). 

5762 TIDES v. THE BOEING CO.
December 26, 2007, respectively. After over nine months of

delay, the agency issued letters acknowledging Tides and

Neumann’s right to proceed de novo in federal court.5 Tides

and Neumann filed separate complaints in district court, alleging that they were terminated in violation of 18 U.S.C.

§ 1514A(a)(1) for reporting violations of SOX and other

securities laws. Their cases were later consolidated. Boeing

moved for summary judgment. On February 9, 2010, the district court granted Boeing’s motion. This timely appeal followed. We have jurisdiction to hear this case under 28 U.S.C.

§ 1291. 

II. STANDARD OF REVIEW

We review the district court’s grant of summary judgment

de novo. Evanston Ins. Co. v. OEA, Inc., 566 F.3d 915, 918

(9th Cir. 2009). In doing so, “[w]e must determine, viewing

the evidence in the light most favorable to [Tides and Neumann], whether there are any genuine issues of material fact

and whether the district court correctly applied the substantive

law.” Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922

(9th Cir. 2004). We also review de novo questions of statutory

interpretation. Beeman v. TDI Managed Care Servs., Inc., 449

F.3d 1035, 1038 (9th Cir. 2006).

III. DISCUSSION

[1] SOX’s whistleblower provision, 18 U.S.C. § 1514A,

protects employees of publicly-traded companies from discrimination in the terms and conditions of their employment

when they take certain actions to report conduct that they rea5

If the Secretary of Labor does not issue a final decision within 180

days of the filing of the complaint and there is no showing that such delay

is due to the bad faith of the claimant, then the claimant may seek de novo

review in district court, which will have jurisdiction over the action

regardless of the amount in controversy. 18 U.S.C. § 1514A(b)(1)(B); see

also Day, 555 F.3d at 53 n.5. 

TIDES v. THE BOEING CO. 5763
sonably believe constitutes certain types of fraud or securities

violations. Section 1514A claims are governed by a burdenshifting procedure under which the plaintiff is first required to

establish a prima facie case of retaliatory discrimination. See

id. § 1514A(b)(2)(A); 49 U.S.C. § 42121(b)(2)(B)(i). To

make out a prima facie case, the plaintiff must show that: (1)

he engaged in protected activity or conduct; (2) his employer

knew or suspected, actively or constructively, that he engaged

in the protected activity; (3) he suffered an unfavorable personnel action; and (4) the circumstances were sufficient to

raise an inference that the protected activity was a contributing factor in the unfavorable action. Van Asdale v. Int’l Game

Tech., 577 F.3d 989, 996 (9th Cir. 2009); 29 C.F.R.

§ 1980.104(b)(1)(i)-(iv). If the plaintiff meets his burden of

establishing a prima facie case, then “the employer assumes

the burden of demonstrating by clear and convincing evidence

that it would have taken the same adverse employment action

in the absence of the plaintiff’s protected activity.” Van

Asdale, 577 F.3d at 996. 

[2] The issue in this case comes down to whether the plaintiffs’ disclosures to the Post-Intelligencer were protected

under § 1514A(a)(1).6 To answer that question, we turn to the

statute’s language to determine whether it has a plain meaning. See McDonald v. Sun Oil Co., 548 F.3d 774, 780 (9th

Cir. 2008). “The preeminent canon of statutory interpretation

requires us to presume that [the] legislature says in a statute

6Amicus curiae the National Whistleblowers Center argues that disclosures to the media may also be protected under § 1514A(a)(2). We decline

to address this argument. The plaintiffs brought their complaints under

§ 1514A(a)(1), and the district court did not explicitly address whether

their disclosures were protected under § 1514A(a)(2). We generally do not

review issues raised only by an amicus curiae. See Russian River Watershed Prot. Comm. v. City of Santa Rosa, 142 F.3d 1136, 1141 n.1 (9th Cir.

1998). Nor will we review issues that are not raised in district court,

absent special circumstances not present here. See Int’l Union of Bricklayers & Allied Craftsman Local Union No. 20 v. Martin Jaska, Inc., 752

F.2d 1401, 1404 (9th Cir. 1985). 

5764 TIDES v. THE BOEING CO.
what it means and means in a statute what it says there. Thus,

our inquiry begins with the statutory text, and ends there as

well if the text is unambiguous.” Id. (quoting BedRoc Ltd.,

LLC v. United States, 541 U.S. 176, 183 (2004) (internal citation and quotation marks omitted)). If the statutory language

is ambiguous, however, then we may refer to legislative history to discern congressional intent. United States v. Gallegos,

613 F.3d 1211, 1214 (9th Cir. 2010). We may also look to

other related statutes because “statutes dealing with similar

subjects should be interpreted harmoniously.” United States v.

Nader, 542 F.3d 713, 717 (9th Cir. 2008) (internal quotation

marks omitted). 

Section 1514A(a)(1) provides that:

(a) No [publicly-traded 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

[mail fraud], 1343 [wire fraud], 1344 [bank fraud],

or 1348 [securities fraud], 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

TIDES v. THE BOEING CO. 5765
(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).

18 U.S.C. § 1514A(a)(1).

[3] The plaintiffs contend that their disclosures of perceived SOX violations to the Post-Intelligencer were protected under § 1514A(a)(1) because reports to the media may

eventually “cause information to be provided” to members of

Congress or federal law enforcement or regulatory agencies.

We decline to adopt such a boundless interpretation of the

statute. The plain language of § 1514A(a)(1) protects employees of public companies from retaliation only when they “provide information, cause information to be provided, or

otherwise assist in an investigation” concerning specified

types of fraud or securities violations “when the information

or assistance is provided to or the investigation is conducted

by” one of three individuals or entities: (1) a federal regulatory or law enforcement agency, (2) a member or committee

of Congress, or (3) a supervisor or other individual who has

the authority to investigate, discover or terminate such misconduct. 18 U.S.C. § 1514A(a)(1). Members of the media are

not included. If Congress wanted to protect reports to the

media under § 1514A(a)(1), it could have listed the media as

one of the entities to which protected reports may be made.

Or, it could have protected “any disclosure” of specified

information, as it did with the Whistleblower Protection Act,

5 U.S.C. § 2302. But it took neither course, opting instead to

limit protected activity to employees who raise certain concerns of fraud or securities violations with those authorized or

required to act on the information. 

[4] When Congress wants to protect the disclosure of any

information to any entity, it knows how to do so. The

Whistleblower Protection Act prohibits retaliation against

5766 TIDES v. THE BOEING CO.
government employees and job applicants for “any disclosure

of information” that the employee or applicant reasonably

believes constitutes “a violation of any law, rule, or regulation, or . . . gross mismanagement, a gross waste of funds, an

abuse of authority, or a substantial and specific danger to public health or safety” as long as “such disclosure is not specifically prohibited by law and if such information is not

specifically required by Executive order to be kept secret in

the interest of national defense or the conduct of foreign

affairs.” 5 U.S.C. § 2302(b)(8) (emphasis added). Relying on

this language, courts and administrative bodies have interpreted the Whistleblower Protection Act to protect government employees who expose wrongdoing to members of the

press. See, e.g., Horton v. Dep’t of Navy, 66 F.3d 279, 282

(Fed. Cir. 1995); Costin v. Dep’t of Health & Human Servs.,

72 M.S.P.R. 525, 536 (M.S.P.B. 1996). But the expansive language of that Act stands in stark contrast to the limiting text

of § 1514A(a)(1). While the Whistleblower Protection Act

protects “any disclosure” without limitation or qualification as

to the specific types of entities to which protected whistleblower reports may be made, § 1514A(a)(1) is not so generous. This distinction lends further support to our conclusion

that § 1514A(a)(1) does not protect employees of public companies who disclose information regarding fraud or certain

securities violations to members of the media. See White v.

Lambert, 370 F.3d 1002, 1011 (9th Cir. 2004), overruled on

other grounds by Hayward v. Marshall, 603 F.3d 546 (9th

Cir. 2010) (en banc) (“[W]hen Congress uses different text in

‘adjacent’ statutes, it intends that the different terms carry a

different meaning.”). 

[5] Construing § 1514A(a)(1) in the manner urged by the

plaintiffs would essentially read the terms “a Federal regulatory agency or law enforcement agency” and “any Member of

Congress or any committee of Congress” out of the statute.

Such a result is one we must avoid, as “it is not within the

judicial province to read out of the statute the requirement of

its words.” Quarty v. United States, 170 F.3d 961, 973 (9th

TIDES v. THE BOEING CO. 5767
Cir. 1999) (quoting United States v. Felt & Tarrant Mfg. Co.,

283 U.S. 269, 273 (1931)). If, as the plaintiffs contend, the

disclosure of information to the media is protected on the

ground that it may ultimately fall into the hands of a member

of Congress or a federal regulator, then virtually any disclosure to any person or entity would qualify as protected

whistleblower activity, provided the information pertains to

one of the statutorily-defined categories of unlawful conduct

set forth in § 1514A(a)(1). We decline to afford such an

expansive meaning to the statutory language.

[6] Although we need not resort to the legislative history

of § 1514A because the plain meaning of the statute is clear,

see United States v. Hall, 617 F.3d 1161, 1167 (9th Cir.

2010), we can sleep well knowing that it reinforces our conclusion above. Section 1514A was passed in response to “a

culture, supported by law, that discourage[d] employees from

reporting fraudulent behavior not only to the proper authorities, such as the FBI and the SEC, but even internally.” S.

Rep. No. 107-146, at 5 (2002) (emphasis added); see also

Day, 555 F.3d at 52. In its report discussing the scope of

SOX’s protections for whistleblowers, the Senate Judiciary

Committee explained that the whistleblower provision was

intended to protect “employees of publicly traded companies

who report acts of fraud to federal officials with the authority

to remedy the wrongdoing or to supervisors or appropriate

individuals within their company.” S. Rep. No. 107-146, at

18-19 (emphasis added). The Committee also clarified that

SOX’s whistleblower provision protects employees of public

companies “when they take lawful acts to disclose information or otherwise assist criminal investigators, federal regulators, Congress, their supervisors (or other proper people

within a corporation), or parties in a judicial proceeding in

detecting and stopping actions which they reasonably believe

to be fraudulent.” Id. at 19. Each of these statements makes

clear that, in enacting § 1514A(a)(1), Congress intended to

protect disclosures only to individuals and entities with the

capacity or authority to act effectively on the information pro5768 TIDES v. THE BOEING CO.
vided. Nowhere in the Committee’s report is there any indication that Congress intended § 1514A(a)(1) to be interpreted so

broadly as to protect employee disclosures to members of the

media.

[7] In sum, the plain meaning of the statutory language

excludes the expansive interpretation advanced by the plaintiffs. We therefore hold that § 1514A(a)(1) does not protect

employees of publicly-held companies from retaliation when

they disclose information regarding designated types of fraud

or securities violations to members of the media. Though

unnecessary to this result, the legislative history gives no reason to doubt that Congress said what it meant to say. Boeing

was within its rights under § 1514A(a)(1) to terminate the

plaintiffs for violating company policy prohibiting unauthorized disclosures of Boeing information to the media. Because

the district court properly granted summary judgment on the

ground that the plaintiffs’ disclosures to the Post-Intelligencer

did not fall within the scope of § 1514A(a)(1)’s protection, we

need not address whether the disclosures “definitively and

specifically” relate to one of the listed categories of fraud or

securities violations, see Van Asdale, 577 F.3d at 996-97, or

whether there is any triable issue of fact as to whether Boeing’s reason for terminating the plaintiffs was pretextual, see

id. at 996. 

AFFIRMED. 

TIDES v. THE BOEING CO. 5769