On October 18, 2023, the NAM filed an amicus brief urging the 3rd Circuit to affirm a lower court holding that federal courts lack the authority to enforce preliminary Department of Labor orders entered in administrative whistleblower retaliation cases. In this case, a district court found that the Sarbanes-Oxley Act does not allow enforcement of a DOL preliminary order requiring immediate reinstatement of terminated plaintiffs pending final resolution of the case by a DOL administrative law judge. The plaintiffs appealed the district court’s decision to the 3rd Circuit.
We argue that the plain language of the applicable statute authorizing judicial review makes clear that district courts lack jurisdiction to enforce preliminary orders of reinstatement; judicial review should only be available when the Secretary of Labor has issued a final order finding an actual violation of the Sarbanes-Oxley Act (as opposed to a preliminary order finding just “reasonable cause” to believe there has been a violation). A decision rejecting the plaintiffs’ appeal is critical for protecting employers’ administrative due process right to challenge preliminary orders in DOL proceedings.