Christopher Garvey v. Administrative Review Board

 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 22, 2022          Decided December 23, 2022

                         No. 21-1182

                   CHRISTOPHER GARVEY,
                        PETITIONER

                              v.

      ADMINISTRATIVE REVIEW BOARD, UNITED STATES
                DEPARTMENT OF LABOR,
                      RESPONDENT

                     MORGAN STANLEY,
                       INTERVENOR


              On Petition for Review of an Order
         of the Department of Labor (except OSHA)



     Christopher Garvey, pro se, argued the cause and filed the
briefs for petitioner.

    Reynaldo Fuentes, Attorney, U.S. Department of Labor,
argued the cause for respondent. With him on the brief was
Megan E. Guenther, Counsel for Whistleblower Programs.

    Michael E. Kenneally argued the cause for intervenor in
support of respondent. With him on the brief were Sarah E.
Bouchard and A. Klair Fitzpatrick.
                                2

   Before: PILLARD, Circuit Judge, and EDWARDS and
ROGERS, Senior Circuit Judges.

   Opinion for the Court filed by Senior Circuit Judge
EDWARDS.

     EDWARDS, Senior Circuit Judge: Section 806 of the
Corporate and Criminal Fraud Accountability Act of 2002,
Title VIII of the Sarbanes–Oxley Act (“SOX”), aims to
encourage disclosure of corporate fraud by protecting
employees of publicly traded companies who report illegal
activities. 18 U.S.C. § 1514A; 

(b). To
achieve this end, the statute authorizes these employees to file
complaints with the Secretary of Labor (“Secretary”) or pursue
suits in federal district court if they are discharged or otherwise
discriminated against for engaging in protected whistleblower
activity. There are two principal issues in this case: (1) whether
Section 806 has an extraterritorial reach covering persons who
are employed overseas by a foreign subsidiary of a U.S.-based
corporation; and (2) whether such persons may allege a
domestic application of Section 806 if they work exclusively
overseas under an employment contract governed by the laws
of a foreign nation.

     This case was initiated by Petitioner Christopher Garvey.
Between 2006 and 2016, Garvey was employed by foreign
subsidiaries of Morgan Stanley, a U.S. corporation. In 2006, he
was hired by the Morgan Stanley Japan Group in Tokyo. In
2011, he relocated to Morgan Stanley Asia Limited in Hong
Kong. When he moved to Hong Kong, Garvey consented to
“the exclusive jurisdiction of [Hong Kong’s] courts and []
Labour Tribunal,” under a contract of employment that was
“governed by the laws of Hong Kong.” Joint Appendix (“J.A.”)
357.
                                3

     Garvey alleges that, between late 2014 and early 2016, he
raised a number of concerns with his superiors in New York
regarding potential U.S. securities law violations committed by
Morgan Stanley employees. According to Garvey, these
alleged legal transgressions included various forms of
corporate corruption, occurring predominantly overseas but
affecting U.S. markets. See J.A. 3-5. Garvey contends that his
whistleblowing claims were met with antagonism by his
superiors at Morgan Stanley. He says that “[i]n January 2016
[he] received a pay cut and a blunt recommendation to find a
job elsewhere”[;] so “[i]n the face of ongoing pressure, hostility
and clear and present risk,” he “resigned his position in
February 2016.” Petitioner’s Br. 17. Garvey retained counsel
to represent his interests after he left Morgan Stanley Asia
Limited. However, he contends that he lost the services of his
attorney after Morgan Stanley threatened to pursue disciplinary
actions against counsel for breach of professional obligations.

     In August 2016, Garvey filed a pro se complaint with the
Occupational Safety and Health Administration (“OSHA”) at
the Department of Labor (“DOL”) against Morgan Stanley for
alleged retaliation in violation of Section 806. His complaint
was dismissed for failure to allege an adverse employment
action. Garvey then sought review by an Administrative Law
Judge (“ALJ”), whose adverse decision was then reviewed by
the DOL Administrative Review Board (“Board”). The Board
rejected his complaint on the grounds that, by its terms, Section
806 does not have extraterritorial application and the facts of
the case did not give rise to a domestic application of SOX. J.A.
377-81. Garvey timely petitioned for review in this court.

     “It is a longstanding principle of American law that
legislation of Congress, unless a contrary intent appears, is
meant to apply only within the territorial jurisdiction of the
                               4
United States.” Morrison v. Nat’l Austl. Bank Ltd., 

 (2010) (citations omitted) (internal quotation marks
omitted). While “an express statement of extraterritoriality is
not essential,” the text, context, and legislative history of
Section 806 do not contain a “a clear, affirmative indication
that [the statute] applies extraterritorially.” RJR Nabisco, Inc.
v. European Cmty., 

 (2016). Therefore,
Garvey has no cause of action under Section 806 unless this
“case involves a domestic application of the statute.” 

     Garvey argues that his complaint states a viable cause of
action because the primary focus of Section 806 is the
prevention of corporate fraud and his allegations of fraud
affecting U.S. securities markets establish a domestic
application of Section 806. We disagree. There is no cause of
action under Section 806 for securities fraud. Rather, Section
806 protects employees from retaliation by making it unlawful
for a company to “discharge, demote, suspend, threaten, harass,
or in any other manner discriminate against an employee in the
terms and conditions of employment because of [the
employee’s protected activity].” 18 U.S.C. § 1514A(a).

     Finally, we hold that Garvey’s claim that Morgan Stanley
threatened his attorney does not support a domestic application
of Section 806. Even if the allegation is true, it would not fall
within the compass of the statute because the events giving rise
to the claim took place after Garvey’s employment was
terminated. And Garvey does not contend that Morgan Stanley
attempted to undermine his employment prospects after he left
the company.

     For the reasons given in this opinion, we deny the petition
for review.
                                5
                      I.      BACKGROUND

   A. Sarbanes-Oxley Act Whistleblower Protections
    In 2002, “[t]o safeguard investors in public companies and
restore trust in the financial markets following the collapse of
Enron Corporation,” Congress enacted the Sarbanes-Oxley
Act. Lawson v. FMR LLC, 

 (2014) (citing S.
REP. NO. 107-146, at 2-11 (2002)). Key among SOX’s
provisions is Section 806, which “sets a national floor for
employee protections” against retaliation for covered
employees reporting instances of corporate fraud. See S. REP.
NO. 107-146, at 20. Section 806 provides in relevant part:

   [18 U.S.C.] § 1514A. Civil action to protect against
   retaliation in fraud cases

   (a) WHISTLEBLOWER PROTECTION FOR EMPLOYEES OF
   PUBLICLY TRADED COMPANIES.--No company with a
   class of securities registered under section 12 of the
   Securities Exchange Act of 1934 (15 U.S.C. 78l), or
   that is required to file reports under section 15(d) of the
   Securities Exchange Act of 1934 (15 U.S.C. 78o(d))
   including any subsidiary or affiliate whose financial
   information is included in the consolidated financial
   statements of such company, or nationally recognized
   statistical rating organization (as defined in section
   3(a) of the Securities Exchange Act of 1934 (15 U.S.C.
   78c), or any officer, employee, contractor,
   subcontractor, or agent of such company or nationally
   recognized statistical rating organization, 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 –
                           6

(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 [“coordinate statutes”], 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—
...

(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)[.]
...

(b) ENFORCEMENT ACTION.—

(1) IN GENERAL. — A person who alleges discharge or
other discrimination by any person in violation of
subsection (a) may seek relief under subsection (c), by-
-

(A) filing a complaint with the Secretary of Labor; or

(B) if the Secretary has not issued 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, bringing an action at law or equity for de
novo review in the appropriate district court of the
United States, which shall have jurisdiction over such
an action without regard to the amount in controversy.
                                7

18 U.S.C. § 1514A. Nothing in Section 806, nor in any
coordinate statute, see 18 U.S.C. § 1514A(a)(1) (citing §§
1341, 1343, 1344, 1348), indicates that the specified
protections for employees against retaliation in fraud cases are
meant to apply extraterritorially.

    When Congress enacted Section 806, it also amended
Section 1107, 

, another whistleblower
provision in the Sarbanes-Oxley Act. This legislative action
added subsection (e) to 

, providing for
criminal sanctions for retaliation against anyone giving truthful
information to law enforcement officers relating to the
commission of any federal offense. What is noteworthy is that
there is express language providing for the statute’s
extraterritorial jurisdiction, under 

(d). “That
Congress provided for extraterritorial reach as to Section 1107
but did not do so as to Section 806 (the provision relevant here)
conveys the implication that Congress did not mean Section
806 to have extraterritorial effect.” Carnero v. Bos. Sci. Corp.,

 (1st Cir. 2006).

   B. The Framework for Civil Actions to Protect
      Employees Against Retaliation in Section 806 Fraud
      Cases
    Under Section 806, a person alleging discrimination may
seek relief by filing a complaint with the Secretary through
OSHA. See 18 U.S.C. § 1514A(b)(1)(A); see also 

. An aggrieved person may also pursue a civil action
in federal district court “if the Secretary has not issued 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.” See 18 U.S.C. § 1514A(b)(1)(B); see also 

.
                                8

    The Secretary’s adjudication of SOX whistleblower claims
is governed by the rules, procedures, and burdens of proof set
forth in the Wendell H. Ford Aviation Investment and Reform
Act for the 21st Century whistleblower provision, 

(b). See 18 U.S.C. § 1514A(b)(2). Following an
investigation, OSHA issues a determination subject to review
by an ALJ. See 18 U.S.C. § 1514A(b)(2)(A); 

(b)(2)(A); 

, 1980.106. The ALJ
may hold a hearing or decide the case on dispositive motions
“if the facts and circumstances warrant.” 

(c). The ALJ’s decision is subject to discretionary
review by the DOL Administrative Review Board. 

. Unless otherwise provided, and absent intervention
by the Secretary, the Board’s holding becomes the DOL’s final
order within 28 calendar days. See Delegation of Authority and
Assignment of Responsibility to the Administrative Review
Board, 

, 13187-88 (Mar. 6, 2020). Any
person adversely affected or aggrieved by a final order of the
Secretary “may obtain review of the order in the United States
Court of Appeals for the circuit in which the violation . . .
allegedly occurred or the circuit in which the complainant
resided on the date of such violation.” 

(b)(4)(A).

    C. Dodd-Frank Amendments
    In its brief to this court, the Secretary usefully explains the
congressional amendments to Section 806 that came in 2010 as
part of the Dodd-Frank Wall Street Reform and Consumer
Protection Act (“Dodd-Frank”):

    The 2010 amendments to Section 806 extended the
    period for filing complaints with the Secretary from 90
    to 180 days, made pre-dispute arbitration agreements
                                9
   inapplicable to Section 806 claims, provided a right to
   jury trial under 18 U.S.C. § 1514A(b)(1)(B) (which
   allows a whistleblower to bring a Section 806 claim in
   district court if the Secretary does not issue a final
   decision on the claim within 180 days), modified the
   definition of employers covered by the provision to
   include nationally recognized statistical ratings
   organizations, and clarified “that subsidiaries and
   affiliates of issuers may not retaliate against
   whistleblowers, eliminating a defense often raised by
   issuers in actions brought by whistleblowers.” See §§
   922(b) and (c) and 929A of Dodd Frank, 

, 1852; S. Rep. No. 111-176, 

   at *114 (Apr. 30, 2010).

Secretary’s Br. 35. Notably, nothing in these 2010
amendments addressed the extraterritorial application of
Section 806.

    In the same legislation, however, Congress expressly
provided for the “extraterritorial jurisdiction” of federal courts
over actions or proceedings brought or instituted by the
Securities Exchange Commission (“SEC”) or the United States
alleging a violation of the antifraud provisions of the Securities
Exchange Act of 1934. See Dodd-Frank, 

-Z, 

, 1864-65 (2010) (referring to authority
of the SEC and the United States to bring actions in federal
courts under 15 U.S.C. § 77v(a), 15 U.S.C. § 78aa, and 15
U.S.C. § 80b-14). No such legislation was adopted to cover
actions brought under Section 806.

   D. Facts and Procedural History of This Case
    Garvey was employed as a “regional coverage lawyer” for
the Morgan Stanley Japan Group and the Hong Kong-based
                              10
Morgan Stanley Asia Limited. J.A. 296. Both corporations are
foreign subsidiaries of Morgan Stanley, a U.S. corporation
listed on the New York Stock Exchange (“NYSE”). There is
nothing in the record to indicate that Garvey was ever
employed or routinely supervised by any Morgan Stanley
operation within the United States.

    As noted above, from the time of his transfer to Hong Kong
in 2011 until his alleged constructive discharge in 2016,
Garvey consented to “the exclusive jurisdiction of [Hong
Kong’s] courts and [] Labour Tribunal,” under an employment
contract “governed by the laws of Hong Kong.” J.A. 357.
Garvey was paid primarily in local currency, received local
benefits, and adhered to Morgan Stanley Asia Limited’s rules
and policies. J.A. 355-56. His “principal role as the Head of
Legal for [Merchant Banking & Real Estate Investing
(“MBREI”)] in Asia was to advise MBREI, and the MBREI
managed funds, in the conduct of their investments and
operations in Asia.” J.A. 206. More broadly, Garvey was
responsible “for the delivery and application of legal advice
and regulatory standards to the conduct of business in Asia.”
J.A. 314. All of Garvey’s internal business clients were based
outside the United States. J.A. 362-68. And his direct reports
were in Asia. J.A. 363-64.

    Garvey alleges that, during periods of time when he was
with the company, Morgan Stanley employees engaged in
insider training, market manipulation, U.S. tax fraud, and other
forms of corporate corruption. He says that these misdeeds
occurred predominantly overseas. See J.A. 3-5, 17, 378.
Because he believed that these dealings violated the securities
laws of the United States, he reported his concerns to his
superiors. J.A. 4. Morgan Stanley officials commenced an
internal investigation, and Garvey traveled to New York City
to assist in their efforts. J.A. 378. However, Garvey says that
                              11
his complaints were never seriously pursued, as Morgan
Stanley “abruptly” ended its internal investigation and declined
to act on the “problematic” findings that were detailed in an
initial report. J.A. 299-300. He asserts that when he notified a
superior of his belief that Morgan Stanley manipulated the
investigations, he was warned that his actions could threaten
future promotion prospects. J.A. 315. On February 5, 2016,
facing a pay cut, ongoing pressure from superiors, and alleged
legal and ethical risks, Garvey resigned from his position at
Morgan Stanley Asia Limited. J.A. 286. Morgan Stanley Asia
Limited accepted Garvey’s Notice of Resignation and outlined
his remaining responsibilities through his final day of
employment. J.A. 359-61.

    After he left Morgan Stanley Asia Limited, Garvey retained
Katz Banks Kumin (formerly Katz, Marshall & Banks, LLP)
as counsel. J.A. 50. Garvey alleges that the firm withdrew its
representation after Morgan Stanley threatened his counsel
with disciplinary actions. Petitioner’s Br. 62.

    Proceeding pro se, Garvey timely filed a Section 806
retaliation complaint against Morgan Stanley with OSHA on
August 2, 2016. Finding that Garvey did not suffer an adverse
employment action and thus failed to allege a prima facie SOX
violation, OSHA dismissed his complaint on March 22, 2017.
J.A. 10. Garvey timely filed a Notice of Objection with the
Office of Administrative Law Judges. J.A. 188.

    On November 21, 2019, Morgan Stanley filed a motion to
dispose of Garvey’s claims following the issuance of two DOL
Administrative Review Board decisions holding that Section
806 lacks extraterritorial application. J.A. 343; see Hu v. PTC,
Inc., ARB No. 2017-0068, ALJ No. 2017-SOX-00019, slip op.
at 7-11 (ARB Sept. 18, 2019); Perez v. Citigroup, Inc., ARB
No. 2017-0031, ALJ No. 2015-SOX-00014, slip op. at 4-5
                               12
(ARB Sept. 30, 2019). Reviewing “all of the relevant evidence
and law,” including the two Board decisions, the ALJ granted
Morgan Stanley’s dispositive motion and dismissed Garvey’s
complaint. J.A. 183. The ALJ adopted the Board’s analysis in
Hu to hold that (1) Section 806 lacks extraterritorial reach, and
(2) Garvey, like Hu, was a foreign-based worker at a foreign
subsidiary employed entirely outside of the United States who
could not allege a domestic application of Section 806. J.A.
182-83.

    Garvey sought review of the ALJ’s decision by the Board.
On July 16, 2021, the Board affirmed the dismissal of Garvey’s
complaint. J.A. 377-78. Relying on the two-step framework
established by the Supreme Court in Morrison, the Board
explained that, absent a clear indication that a statute applies
extraterritorially, a complainant must establish a cognizable
domestic connection to have a viable cause of action under
Section 806. J.A. 379 (citing 

).

     In rejecting Garvey’s complaint, the Board first concluded
that Section 806, by its terms, is not extraterritorial. J.A. 380
(citing Hu, slip op. at 7-9, and Perez, slip op. at 5). The Board
next found that Garvey’s complaint “does not represent a
domestic application of Section 806.” J.A. 380. The Board
explained that “[t]he location of the employee’s permanent or
principal worksite is the key factor to determine whether a
claim is domestic or extraterritorial.” J.A. 381 n.10. The Board
concluded that “[b]ecause the record shows that [Garvey’s]
permanent or principal worksite was in Hong Kong during the
relevant time period, the facts of this matter do not create a
domestic application of Section 806.” J.A. 381.

    Finally, the Board found no merit in Garvey’s claim that
Morgan Stanley violated Section 806 when it allegedly
harassed and threatened his attorney. The Board determined
                              13
that “the alleged conduct [was] not an adverse employment
action that impacted the terms and conditions of his
employment nor did [Garvey] present evidence that the alleged
retaliation affected the terms or conditions of any subsequent
employment.” J.A. 381 n.10. Therefore, the Board concluded
that, even if the “alleged claims of post-employment retaliation
or harassment have merit, they still would not create a domestic
application of Section 806 over [Garvey’s] claim.” J.A. 381.

   Garvey now appeals pro se, requesting that we reject the
Board’s legal determinations and grant his petition for review.

                        II.     ANALYSIS

    A. Standard of Review
     Section 806 administrative proceedings are “governed
under the rules and procedures set forth in [

(b)(4)(A)].” 18 U.S.C. § 1514A(b)(2)(A). Section
42121(b)(4)(A), in turn, says that judicial review shall conform
to the standards prescribed in the Administrative Procedure Act
(“APA”), 

. Therefore, a court typically applies
the terms of the APA when reviewing a Board order. See, e.g.,
Villanueva v. U.S. Dep’t of Lab., 

 (5th Cir.
2014); Welch v. Chao, 

 (4th Cir. 2008).
Under the APA, an order of the Board “will be upheld unless it
is arbitrary, capricious, an abuse of discretion, or otherwise
contrary to law. Factual findings are subject to substantial
evidence review. [This means that, a Board] decision must be
upheld if, considering all the evidence, a reasonable person
could have reached the same conclusion as the [Board].” Allen
v. Admin. Rev. Bd., 

 (5th Cir. 2008) (citations
omitted) (internal quotation marks omitted).
                              14
     Several of our sister circuits have held that permissible
interpretations of Section 806 by the Board are entitled to
deference under Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 

 (1984). See Day v.
Staples, Inc., 

, 54 n.7 (1st Cir. 2009) (noting that
“Congress explicitly delegated to the Secretary of Labor
authority to enforce § 1514A by formal adjudication . . . and
the Secretary has delegated her enforcement authority to the
[Board].”) (citations omitted); see also Lockheed Martin Corp.
v. Admin. Rev. Bd., 

 (10th Cir. 2013);
Wiest v. Lynch, 

 (3d Cir. 2013); Welch, 

 n.2.

     Garvey argues that no Chevron deference is due in this
case because the judgment of the Board does not turn on an
interpretation of Section 806. Rather, according to Garvey, the
principal issue in this case is whether Section 806 has an
extraterritorial application. Petitioner’s Br. 12. In addition,
Garvey says that that no Chevron deference is due because the
question of extraterritoriality is a matter of jurisdiction; and
Congress did not delegate authority to the DOL to define the
reach of SOX. Id. at 24. Finally, Garvey says that the “test for
determining extraterritoriality based on the location of
employment . . . is a legal question that involves the
interpretation and application of binding judicial precedent
arising out of Supreme Court precedent and is, therefore,
entitled to de novo review.” Id. Both the Secretary and the
Intervenor argue that the Board’s interpretation and application
of Section 806 is entitled to deference under Chevron. See
Secretary’s Br. 19; Intervenor Morgan Stanley’s Br. 9-10.

    We need not decide any Chevron issue in this case. The
Supreme Court has made it clear that “Chevron deference does
not apply where the statute is clear.” Johnson v. Guzman
Chavez, 

, 

, 2291 n.9 (2021); see
                               15
also Babb v. Wilkie, 

, 

 (2020)
(“[W]here, as here, the words of [a] statute are unambiguous,
the judicial inquiry is complete.” (citation omitted) (internal
quotation marks omitted)); Am. Hosp. Ass’n v. Becerra, 

,

, 1906 (2022) (holding that a court is
not bound to defer to an agency interpretation of a statute if,
“after employing the traditional tools of statutory
interpretation, [the court does] not agree with [the agency’s]
interpretation of the statute”).

     For the reasons that we explain below, we hold that the
text, context, and legislative history of Section 806 do not
contain a clear, affirmative indication that the statute applies
extraterritorially. And we conclude that Garvey has no cause of
action under Section 806 because this case does not involve a
domestic application of the statute. Although our legal
judgments are consistent with the order issued by the Board,
we have pursued de novo review in reaching this result. We
find the statute and applicable law clear on these matters, so
deference under Chevron is not an issue. We need not decide
whether Chevron deference might be due to a Board order in
another case involving different issues.

   B.    Petitioner’s Principal Claims in This Case

    Garvey argues that because Section 806 includes terms that
may be viewed to have an extraterritorial reach, Section 806
must be extraterritorial in scope. Petitioner’s Br. 19, 27-32. In
the alternative, Garvey asserts that “there is no need to apply
Section 806 extraterritorially” because the facts of the case
support a domestic application of Section 806. 

.

    We assess Garvey’s allegations using the two-step
framework outlined by the Supreme Court in Morrison and its
progeny. The Court has explained that:
                                16

   At the first step, we ask whether the presumption
   against extraterritoriality has been rebutted—that is,
   whether the statute gives a clear, affirmative indication
   that it applies extraterritorially. We must ask this
   question regardless of whether the statute in question
   regulates conduct, affords relief, or merely confers
   jurisdiction. If the statute is not extraterritorial, then at
   the second step we determine whether the case
   involves a domestic application of the statute, and we
   do this by looking to the statute's “focus.” If the
   conduct relevant to the statute’s focus occurred in the
   United States, then the case involves a permissible
   domestic application even if other conduct occurred
   abroad; but if the conduct relevant to the focus
   occurred in a foreign country, then the case involves an
   impermissible extraterritorial application regardless of
   any other conduct that occurred in U.S. territory.

RJR Nabisco, 

; see Morrison, 

. Applying this framework, we are constrained to dismiss
Garvey’s petition for review.

   C. The Presumption Against Extraterritoriality
      Cannot Be Overcome
    It is well understood that, unless a contrary intent appears,
an act of Congress “is meant to apply only within the territorial
jurisdiction of the United States.” Morrison, 

(citation omitted) (internal quotation marks omitted). “This
principle represents a canon of construction, or a presumption
about a statute’s meaning, rather than a limit upon Congress’s
power to legislate.” Id.; see Meshal v. Higgenbotham, 

 (D.C. Cir. 2015) (“[E]xtraterritoriality dictates
constraint in the absence of clear congressional action.”).
                                17

    The presumption against extraterritoriality “rests on the
perception that Congress ordinarily legislates with respect to
domestic, not foreign, matters.” Morrison, 

(citation omitted), and the Supreme Court has applied it “with
increased clarity and insistence” in recent years. United States
v. Garcia Sota, 

 (D.C. Cir. 2020) (citing RJR
Nabisco, 

; Kiobel v. Royal Dutch Petroleum Co.,

 (2013); and Morrison, 

). The
presumption is rebutted only when the statute’s “text, history,
or purposes . . . evince[] a clear indication of extraterritorial
reach.” Kiobel, 

. Generic terms or “fleeting
reference[s]” to possible international applications do not
overcome this presumption. Morrison, 

.

     At the first Morrison step, we assess whether the statute
gives “a clear, affirmative indication that it applies
extraterritorially.” RJR Nabisco, 

. “As always,
we begin with the text of the statute” in interpretating a
challenged provision. American Federation of Gov’t
Employees, AFL-CIO, Local 3669 v. Shinseki, 

(D.C. Cir. 2013) (citation omitted); see also Wisconsin Cent.
Ltd. v. United States, 

 (2018). Where the
text is not clear, we turn next to assessing whether any
indication of congressional intent overcomes the presumption
against extraterritoriality. See Sale v. Haitian Centers Council,
Inc., 

 (1993) (reviewing “all available
evidence” to determine Congress’s intent). Where “a statute
gives no clear indication of an extraterritorial application, it has
none.” Morrison, 

.

     We find that the Board properly held that the text, context,
and legislative history of Section 806 do not contain a clear,
affirmative indication that Congress intended the provision to
apply extraterritorially. There is nothing in Section 806 to
                                18
indicate that it has an extraterritorial reach covering a person
like Garvey, who was employed exclusively in the overseas
operation of a foreign subsidiary of a U.S.-based corporation.

     Text and Context. Section 806 is “silent as to its territorial
reach.” Carnero, 

. The provision contrasts sharply
with other statutes that rebut the presumption against
extraterritoriality by stating, for example, that they apply to
offenses taking place “outside the United States” or that they
create “extraterritorial jurisdiction over” the prohibited
conduct. RJR Nabisco, 

 (citations omitted); see
also E.E.O.C. v. Arabian Am. Oil Co., 

(1991) (“Aramco”) (citing numerous statutes that expressly
provide extraterritorial application).

     Section 806 also contrasts with other SOX enactments,
including a whistleblower provision, that expressly provide for
extraterritorial enforcement. See 

(d); Carnero,

 (noting testimony by U.S. Senators Sarbanes,
Graham, and Enzi that demonstrates Congress’s awareness of
foreign applications of certain SOX provisions, as well as of
the associated challenges of such application). We assume
“that Congress legislates against the backdrop of the
presumption against extraterritoriality.” Shekoyan v. Sibley
Int’l, 

 (D.C. Cir. 2005). Thus, legislation
explicitly providing one provision with extraterritorial reach
likely weighs against a finding that another provision without
such language applies overseas. See Garcia Sota, 

; Aramco, 

 (“When it desires to do so,
Congress knows how to place the high seas within the
jurisdictional reach of a statute.” (citation omitted) (internal
quotation marks omitted)). Congress’s silence regarding
Section 806’s scope and concurrent grant of extraterritorial
enforcement elsewhere under SOX convey the implication that
                                19
it did not intend to provide Section 806 with extraterritorial
effect.

     Legislative History. “Nowhere in the legislative history is
there any indication that 18 U.S.C. § 1514A was drafted with
the purpose of extending to foreign employees working in
nations outside of the United States the right to seek
administrative and judicial civil relief under [SOX].” Carnero,

. Congress justified Section 806’s enactment by
detailing insufficiencies in state, not international, protections
for whistleblowers. S. REP. NO. 107-146, at 2, 10; see also
Carnero, 

. The exhaustive discussion in
Carnero convincingly confirms that, “[n]ot only is the text of
18 U.S.C. § 1514A silent as to any intent to apply it abroad, the
statute’s legislative history indicates that Congress gave no
consideration to either the possibility or the problems of
overseas application,” 

.

     Post-Enactment History. As discussed above, Congress
enacted Section 929A of Dodd-Frank to expand Section 806’s
coverage to “any subsidiary or affiliate whose financial
information is included in the consolidated financial statements
of such company.” 18 U.S.C. § 1514A(a); see S. REP. NO. 111-
176, at 114. At the same time, it provided for the extraterritorial
application of enforcement actions brought by the SEC under
Section 929P of Dodd-Frank. 

-65; see H.R. REP.
NO. 111-517, at 498-99 (2010). Congress was “obviously
aware of Morrison,” decided shortly before, and enacted
“clear, affirmative text rebutting the presumption against
extraterritoriality” with respect to Section 929P. Hu, slip op. at
9. Yet, Congress notably declined to amend the statute to give
an extraterritorial reach to Section 806.

    Where, as here, “Congress includes particular language in
one section of a statute but omits it in another section of the
                               20
same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion.” Russello v. United States, 

 (1983)
(citations omitted) (internal quotations marks omitted).
Congress’s silence on Section 806’s scope – even as it amended
the provision and provided for extraterritoriality elsewhere in
the same statute – weighs strongly against a finding that
Congress intended to provide for the overseas application of
Section 806.

     Petitioner’s Claims. Garvey makes two principal claims
in support of his argument that the text of Section 806
demonstrates a clear indication of extraterritorial application.
He first contends that the scope of Section 806 is limited by
definitions that have specific extraterritorial reach. He further
asserts that Section 806 incorporates predicate statutes that
have extraterritorial reach. His arguments are unconvincing.

     First, Garvey points out that Section 806 prohibits
retaliation by certain identifiable companies, i.e., those with a
class of securities registered under Section 12, or that are
required to file reports under Section 15(d), of the Securities
Exchange Act of 1934 – including any subsidiary or affiliate
whose financial information is included in the consolidated
financial statements of such company. Petitioner’s Br. 28-29,
45 n.51 (citing 15 U.S.C. §§ 78l, 78o(d)). Thus, in Garvey’s
view, “the text of Section 806 provides a clear indication of the
intention to have extraterritorial reach consistent with the
relevant scope of companies captured by Sections 12 and
15(d).” Id. at 28. The essence of his argument seems to be that,
because “Sections 12 and 15(d) reach both domestic and
foreign issuers,” id., it necessarily follows that the employees
of such companies who are based outside of the United States
have a cause of action under Section 806 just as do the
employees working in the United States. Id. at 27-29, 32-33.
                               21
This argument is insufficient to support the extraterritorial
application of Section 806.

     The applicable case law makes it clear that generic terms
in Section 806 that might imply a foreign reach are insufficient
to rebut the presumption against extraterritorial applications of
the statute. Indeed, the Supreme Court has made it plain that
“[t]he principles underlying the presumption against
extraterritoriality [] constrain courts exercising their power” in
applying a statute enacted by Congress. Kiobel, 

.

     The important point here is that, even if Section 806
reaches some companies that have a presence in foreign
countries, the statute is silent on whether it applies to those
companies’ overseas operations and personnel. In Carnero, the
First Circuit assumed without deciding that the complainant’s
employer – an Argentine subsidiary of a U.S. company
registered under Section 12 of the Securities Exchange Act –
was a covered entity under Section 806 and that the
complainant himself was a covered employee under the statute.
See 

. The court nevertheless concluded that this
did not support an extraterritorial application of Section 806.

. We agree.

     Likewise, in Aramco, the complainant argued that Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,
applies extraterritorially because of its broad definition of
“employer.” Aramco, 

. A covered employer
included companies in industries affecting “commerce,”
broadly defined to include activities “between a State and any
place outside thereof.” 

 (citation omitted) (internal quotation
marks omitted). Although this provision arguably covers U.S.
companies operating in foreign countries, the Supreme Court
found that this “broad jurisdictional language” did not speak
                              22
directly to the question of extraterritoriality and thus did not
clearly express congressional intent to apply Title VII
extraterritorially. Aramco, 

. Section 806
similarly may prohibit retaliation by foreign companies listed
on U.S. securities exchanges, but we cannot thereby infer that
it prohibits retaliation claims by anyone at those companies
who is employed exclusively outside the United States. See
Kiobel, 

 (“The [Alien Tort Statute] covers
actions by aliens for violations of the law of nations, but that
does not imply extraterritorial reach—such violations affecting
aliens can occur either within or outside the United States.”).

     In sum, we find no merit in Garvey’s first argument that
the scope of Section 806 is limited by definitions that have
specific extraterritorial reach. His second argument – that
Section 806 incorporates “predicate statutes” that have
extraterritorial reach – fares no better.

     Garvey notes that Section 806 prohibits retaliation against
an employee reporting conduct that the employee reasonably
believes violates 

 (wire fraud) and 

 (securities fraud). He argues that because these statutes
have at least some applications abroad, Section 806 must have
an extraterritorial reach. Petitioner’s Br. 31-32. We disagree
because the relationship between Section 806 and the wire
fraud and securities fraud statutes is too tenuous to overcome
the presumption against extraterritoriality.

     In support of his position, Garvey seeks to rely on the
Supreme Court’s decision in RJR Nabisco, in which Court
examined whether separate sections of the Racketeer
Influenced and Corrupt Organizations Act (“RICO”) have
extraterritorial reach. In RJR Nabisco, the Court held that
“RICO gives a clear, affirmative indication that § 1962 applies
to foreign racketeering activity—but only to the extent that the
                                23
predicates alleged in a particular case themselves apply
extraterritorially. Put another way, a pattern of racketeering
activity may include or consist of offenses committed abroad
in violation of a predicate statute for which the presumption
against extraterritoriality has been overcome.” 579 U.S at 339.
Garvey analogizes Section 806 to Section 1962 in RICO. He
contends that, like Section 1962, Section 806 must have “some
extraterritorial application” – presumably, to the extent that the
wire and securities fraud statutes apply extraterritorially.
Petitioner’s Br. 32. He further asserts that the “[t]he wire fraud
statute . . . contains an express indication of extraterritoriality
by prohibiting fraudulent wire communications in foreign
commerce.” Id. at 31 n.30. And he says that “[t]he securities
fraud statute . . . contains a ‘clear indication of extraterritorial
effect’ by incorporating fraud in connection with the trading of
publicly traded securities of foreign companies.” Id. at 31-32
n.30 (citation omitted).

     The flaw in Garvey’s argument is that, unlike RICO
Section 1962, Section 806 does not create liability for a
violation of any of the referenced statutes or require proof that
any of them occurred. Rather, a person filing a complaint under
Section 806 need only “reasonably believe[]” that one of the
enumerated crimes occurred. See 18 U.S.C. § 1514A(a)(1); 

. The reported conduct need not violate those
fraud statutes if the employee’s belief in the violation is
reasonable. So whether their prohibitions on fraud apply
extraterritorially is irrelevant to whether Section 806’s
prohibition on retaliation does as well.

     Even if the fraud statutes referenced in Section 806 were
relevant and even if they applied extraterritorially, Garvey’s
argument would fail. In citing RJR Nabisco, he fails to
acknowledge the parts of the Court’s opinion which
distinguished between RICO’s substantive prohibitions on
                               24
patterns of racketeering (in 

(a)-(d)) and
RICO’s private right of action (in 

(c)). See

. The Court found that Section 1964(c) of RICO
was not rendered extraterritorial merely because it provides
relief for those injured “by reason of a violation of section
1962.” 

 The Court found that Section 1964(c)’s reference to
Section 1962, a provision with extraterritorial reach, did not
thereby imbue Section 1964(c) with extraterritorial effect. 

. The Court explained that Section 1964(c)’s scope
had to be evaluated separately from Section 1962’s because
“‘[t]he creation of a private right of action raises issues beyond
the mere consideration whether underlying primary conduct
should be allowed or not,’” including the potential for conflict
with international laws. RJR Nabisco, 

 (quoting
Sosa v. Alvarez-Machain, 

 (2004)). Like
Section 1964, Section 806 creates a private right of action that
“carries with it significant foreign policy implications.” RJR
Nabisco, 

 (citation omitted) (internal quotation
marks omitted). Its mere reference to fraud statutes that may
have some extraterritorial application, absent any clear indicia
that Congress also intended the Section 806 whistleblower
protections to apply abroad, fails to rebut the presumption
against extraterritoriality.

     We need not decide whether either fraud statute in fact has
extraterritorial effect. See Sec. & Exch. Comm’n v. Bio Def.
Corp., No. CV 12-11669-DPW, 

, at *12
n.19 (D. Mass. Sept. 6, 2019), aff’d sub nom. Sec. & Exch.
Comm’n v. Morrone, 

 (1st Cir. 2021) (“The
question whether the wire fraud statute . . . applies
extraterritorially has split the circuits.”); Petitioner’s Br. 31
n.30 (conceding that the securities fraud statute “contains no
express extraterritorial authority”). Even assuming they do, we
cannot infer from their limited relationship to Section 806 that
                                25
Congress intended to apply Section 806 to employment actions
abroad.

     Congress has had ample opportunities since SOX’s
passage in 2002 to amend Section 806 to give it extraterritorial
effect, as it has done with other statutes. The First Circuit has
concluded – and we agree – that Congress’s silence regarding
extraterritorial reach in Section 806 strongly suggests a lack of
congressional intent to allow a cause of action in a case such as
this, i.e., involving retaliation against a person whose exclusive
place of employment is outside the United States and whose
contract of employment is governed by the laws of a foreign
nation. “We hold that 18 U.S.C. § 1514A does not reflect the
necessary clear expression of congressional intent to extend its
reach beyond our nation's borders.” Carnero, 

.

    D. The Record in This Case Does Not Support a
       Domestic Application of Section 806
    As we explained in the introduction to this opinion,
Garvey has no cause of action under Section 806 unless this
case involves a domestic application of the statute. See
WesternGeco LLC v. ION Geophysical Corp., 

, 

 (2018) (citing RJR Nabisco, 

-
38). In our view, Garvey’s complaint does not present a
permissible domestic application of the law.

     In making this determination, we first consider the
statute’s focus and then consider the facts alleged to determine
whether the conduct relevant to that focus occurred in the
United States. 

 To determine a statute’s focus, courts look to
the “conduct [the statute] seeks to regulate, as well as the
parties and interests it seeks to protect or vindicate.” Id. at 2137
(cleaned up). “[I]f the conduct relevant to the focus occurred in
a foreign country, then the case involves an impermissible
                               26
extraterritorial application regardless of any other conduct that
occurred in U.S. territory.” RJR Nabisco, 

.

     We hold that the clear focus of Section 806 is on
regulating employment relationships – specifically prohibiting
covered employers from retaliating against employees for
engaging in the protected activities enumerated in the statute.
In assessing the applicability of Section 806, the locus of an
employee’s work and the terms of his or her employment
contract are critically important. Garvey’s attempt to apply
Section 806 to alleged retaliation against him, notwithstanding
that his exclusive place of employment was outside the United
States and his contract of employment was governed by the
laws of a foreign nation, is necessarily extraterritorial.

    It is undisputed that, at all relevant times, Garvey’s
exclusive places of work were outside the United States, in the
Morgan Stanley Japan Group in Tokyo and in Morgan Stanley
Asia Limited in Hong Kong. Therefore, Garvey’s complaint
does not implicate a domestic application of the statute.

     Section 806’s Focus. Although the stated purpose of SOX
is to protect investors and build confidence in U.S. securities
markets, the provision relevant here – Section 806 – was
specifically designed to afford remedies to employees of
specified offending companies. See Digital Realty Trust, Inc.
v. Somers, 

 (2018) (describing Section 806
as a statute that prohibits “employment discrimination,” not
securities fraud generally) (citation omitted).

    Specifically, Section 806 was designed to protect
employees from retaliation by making it unlawful for a
company to “discharge, demote, suspend, threaten, harass, or
in any other manner discriminate against an employee in the
terms and conditions of employment because of [the
                              27
employee’s protected activity].” 18 U.S.C. § 1514A(a). Section
806 is directly connected to an employee’s terms and
conditions of employment, as it was enacted to provide
“protection for employees of publicly traded companies who
blow the whistle on fraud and protect investors.” S. REP. NO.
107-146, at 10 (emphasis added). Its “focus” – that is, the
conduct it regulates – is on prohibiting employment-related
retaliation.

     It is also noteworthy that the relevant venue provisions
covering complaints under Section 806 presume that an alleged
violation occurred or that the complainant lived within the
jurisdiction of a U.S. federal court. See 

(b)(4)(A), (b)(5), incorporated into 18 U.S.C.
§ 1514A(b). This would not apply to complainants who
suffered retaliation while working abroad.

     Garvey counters that Section 806 is focused on preventing
corporate or securities fraud by prohibiting retaliation against
whistleblowers and thus should apply whenever the fraudulent
conduct reported would affect U.S. investors. Petitioner’s Br.
52-53. But this is not what the text of the statute directs. As
discussed above, although Section 806’s protections may
bolster reporting of corporate fraud and securities violations,
its primary focus is on regulating employment.

     Section 806 was not intended to cure all the ills of the
securities markets; it addresses only retaliatory conduct by
certain regulated companies against certain employees who
engage in enumerated protected activities. See 18 U.S.C. §
1514A(a)(1). Not all companies are covered, and not all
employees are protected. And there is no cause of action under
Section 806 for securities fraud.
                                28
     Extraterritorial Nature of Garvey’s Claims. It is
undisputed that the locus of Garvey’s employment was Asia,
not the United States. He not only worked exclusively
overseas, he also agreed to an employment agreement
governed by the laws of Hong Kong, under “the exclusive
jurisdiction of its courts and the Labour Tribunal.” J.A. 151.

     Garvey nonetheless insists he may allege a domestic
application by asserting that corporate decisionmakers in the
United States directed the retaliation campaign against him,
Petitioner’s Br. 54-55; the fraudulent activity impacted United
States markets, id. at 52-53; and Morgan Stanley intimidated
his chosen counsel, imperiling his whistleblower complaint
under U.S. laws, id. at 62. Garvey also underscores his U.S.
citizenship and the location of Morgan Stanley Asia Limited’s
parent company in New York. Id. at 14-16, 21, 55-56. These
allegations neither change the overseas locus of Garvey’s
employment nor make the conduct domestic. See Morrison,

 (allegedly deceptive conduct occurring in the
United States did not make claim domestic); Liu Meng-Lin v.
Siemens AG, 

 (2d Cir. 2014) (“[S]imply
alleging that some domestic conduct occurred cannot support a
claim of domestic application because it is a rare case of
prohibited extraterritorial application that lacks all contact with
the territory of the United States.”) (cleaned up).

    Unless a statute provides otherwise, a U.S. law regulating
an employee’s terms and conditions of employment does not
automatically confer protections to individuals, like Garvey,
who have opted to work outside the United States. See
Milanovich v. Costa Crociere, 

 (D.C. Cir.
1992) (“Under American law, contractual choice-of-law
provisions are usually honored.”) (citing Restatement (Second)
of Conflict of Laws § 187 (Am. L. Inst. 1971)); Carnero, 

 (declining to extend Section 806 extraterritorially in
                              29
light of other countries’ interests in regulating employment
relationships).

     There may be some situations in which the relationship
between an employee who works overseas and the parent
company in the United States is so intertwined that a domestic
application of Section 806 may be viable. That is not this case,
so we will not opine on the matter. In this case, the alleged
involvement of Morgan Stanley in decisions about Garvey’s
employment at Morgan Stanley Asia Limited is insufficient to
create a domestic application of Section 806, as “allegations of
general corporate activity—like decisionmaking—cannot
alone establish [a] domestic application.” Nestlé USA, Inc. v.
Doe, 

, 

, 1937 (2021); see also
Carnero, 

 (the involvement of some U.S.-based
personnel in the decision to take adverse employment action
overseas does not give rise to a domestic application of SOX);
Johnson v. Flowers Indus., Inc., 

, 980 (4th Cir.
1987) (adverse employment actions by a subsidiary are not
generally attributable to a parent company).

     The alleged retaliation against Garvey occurred solely in
connection with his work for Morgan Stanley Asia Limited, an
extraterritorial employer. This case does not involve a domestic
application of Section 806 and thus fails the second step under
Morrison.

   E. Garvey’s Allegations Regarding Post-Employment
      Actions Fail
    Garvey contends that Morgan Stanley threatened the
attorneys he retained, leading to their withdrawal from the case
and “significantly prejudic[ing] Petitioner’s ability to seek
effective redress under Section 806 with respect to his
underlying claims.” Petitioner’s Br. 62. This, Garvey asserts,
                              30
“must itself constitute an adverse employment action, and a
domestic application” of Section 806, even if it occurred after
his employment with Morgan Stanley Asia Limited ended. Id.
at 64. We disagree.

    The alleged conduct – harassment of Garvey’s counsel –
could not establish a domestic application of Section 806, as it
occurred after Garvey’s employment at Morgan Stanley Asia
Limited ended and did not impact the terms and conditions of
his employment. Moreover, there is no evidence that either
Morgan Stanley or Morgan Stanley Asia Limited sought to
negatively affect Garvey’s post-employment opportunities.
Absent interference with an employee’s current employment or
future employment prospects, contested actions arising after
employment has terminated do not constitute adverse
employment actions. We agree with the Board’s holding that
post-employment conduct cannot undergird a claim under
Section 806 where such conduct does not impact the terms and
conditions of a complainant’s employment. Accordingly,
Garvey’s allegations are not within the compass of protections
afforded by Section 806.

                       III.   CONCLUSION
   For the foregoing reasons, we affirm the Board’s judgment
and deny Garvey’s petition for review.



                                                    So ordered.