Jeffrey Wiest v. Thomas Lynch

OPINION OF THE COURT

Appellant Jeffrey Wiest brought an action under the whistleblower protection provisions set forth in Section 806 of the Sarbanes-Oxley Act (“SOX”), 18 U.S.C. § 1514A, and under Pennsylvania law against Appellees Tyco Electronics Corporation and several officers and directors of Tyco Electronics (collectively, “Tyco”). The District Court granted Tyco’s Motion to Dismiss the federal whistleblower claims, declined to exercise supplemental *124jurisdiction over the state law claims, and denied Wiest’s Motion for Reconsideration. Concluding that the District Court erred in requiring that Wiest allege that his communications to his supervisors “definitively and specifically relate to” an existing violation of a particular anti-fraud law, as opposed to expressing a reasonable belief that corporate managers are taking actions that could run afoul of a particular anti-fraud law, we will reverse, in part, the dismissal of the federal whistleblower claims and vacate the dismissal of the state law claim.

I.

A. Background

According to the Complaint, Wiest worked for approximately thirty-one years in Tyco’s accounting department until his termination in April 2010. For Wiest’s last ten years of employment, his office was under “a high level of audit scrutiny” due to the well-known corporate scandal involving its former parent company, Tyco International, and its CEO, Dennis Kozlowski. (App. 42, ¶ 31.) Around 2007, Wiest “established a pattern of rejecting' and questioning expenses” that failed to satisfy accounting standards or securities and tax laws. (Id. at 43, ¶ 33.)

1. The Atlantis Resort Event

In mid-2008, Wiest refused to process a payment and sent an email to his supervisor regarding an event that Tyco intended to hold at the Atlantis Resort in the Bahamas, which was similar to a corporate party under Kozlowski’s management that had drawn significant criticism. Expenses for the $350,000 Atlantis event included “Mermaid Greeters” and “Costumed Pirates/Wenches” at a cost of $3,000; a “Tattoo Artist (includes tattoos)” and “Limbo” and “Fire” at a cost of $2,350; chair decorations at a cost of $2,500; and hotel room rentals ranging from $475 to $1,000 per night. (Id. at 45, ¶ 41.) In an email to his supervisor, Wiest expressed his belief that the costs were inappropriately charged entirely as advertising expenses. He asserted that the costs needed to be detailed and charged as income to attending employees because the employees were bringing guests, and the expenses needed to “be reviewed for potential disallowance by a taxing authority based on excessive/extravagant spend [sic] levels.” (Id. at 84, Ex. E.) Following Wiest’s email, Tyco’s management determined that the five-day event included only a single one-and-one-half hour business meeting. As a result, they determined that processing the payment “would have resulted in a misstatement of accounting records and a fraudulent tax deduction,” and that Tyco needed to treat the event as income for attending employees. (Id. at 43-44, ¶ 35.) Tyco decided to proceed with the event and to compensate the attendees for the additional tax liability by increasing (i.e., “grossing-up”) their bonuses.

2. The Venetian Resort Event

Also in mid-2008, Wiest received a request to process a payment of $218,000 for a conference at the Venetian Resort in Las Vegas, Nevada. The request lacked both sufficient documentation for tax purposes and proper approval pursuant to Tyco’s “delegation of authority.” Additionally, the request included inaccurate accounting and tax treatment information. At Wiest’s direction, one of his subordinates sent an email to the Tyco employee who submitted the request, explaining that the accounts payable department could not process the request until it had received an agenda and business purpose for the event, correct accounting treatment for various expenses, and approval pursuant to Tyco’s delegation of authority. The tax department eventu*125ally concluded that the conference served a business purpose, and the accounts payable department subsequently allowed the payment.

3.The Wintergreen Resort Event

In late 2008, Wiest was presented with a request for approval of a conference at the Wintergreen Resort in Virginia in the amount of $335,000. Like the Venetian Resort request, the Wintergreen expense request lacked both sufficient documentation and proper approval from Tyco’s CEO. Wiest emailed his supervisor, explaining that he believed Tyco’s internal policies required that the CEO be notified about the transaction. To the best of Wi-est’s knowledge, Tyco processed the payment without the CEO’s approval, in violation of Tyco’s internal policies.

4.Other Matters

Wiest also alleges that he questioned other events between 2007 and 2009. In particular, he questioned expenses for a “relatively lavish ‘holiday party,’ ” a $52,000 audit team meeting, and an employee baby shower. (Id. at 49, ¶ 55.) He also sent an email to management when he received an expense request from an employee that included duplicate entries, additional nights of hotel bills, and undocumented expenses. He informed management that processing that improper expense request would constitute invalid or undocumented business expenses if Tyco was not reimbursed or if the amount was not reported as income on the employee’s W-2 form.

5.Termination of Employment

Wiest alleges that Tyco became frustrated with his persistence in following proper accounting procedures. In September 2009, two human resources employees met with Wiest and informed him that he was under investigation for incorrectly reporting the receipt of two basketball game tickets in August 2009, for having a relationship with a coworker ten years earlier, and for allegedly making sexually-oriented comments to co-workers. After Wiest learned of the investigation, his health declined and he went on medical leave. Seven months later, Tyco terminated his employment.

B. Procedural History

On July 7, 2010, Wiest sued the Tyco Defendants, asserting that his discharge was in retaliation for his reports of improper expenditures, in violation of Section 806 of SOX. That section prohibits certain employers from discriminating against employees for reporting information that they reasonably believe constitutes a violation of one of several enumerated provisions relating to fraud and securities regulations. See 18 U.S.C. § 1514A.1 Wiest also presented state law claims, including intentional infliction of emotional distress and wrongful termination, and his wife brought a claim for loss of consortium. Tyco moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), asserting that Wiest failed to state a prima facie claim under Section 806.

As to the threshold question for a prima facie case in a retaliation case under Section 806 — whether the Complaint sufficiently alleges that the plaintiff had engaged in “protected activity,” see 29 C.F.R. § 1980.104(e)(2)(i) — the District Court determined that Wiest had to allege that his communications (a) “definitively and spe*126cifically” related to a statute or rule listed in Section 806; (b) expressed “ ‘an objectively reasonable belief that the company intentionally misrepresented or omitted certain facts to investors, which were material and which risked loss;’ ” and (c) “reflect[ed] a reasonable belief of an existing violation.” Wiest v. Lynch, Civil Action No. 10-3288, 2011 WL 2923860, at *4 (E.D.Pa. July 21, 2011) (citations omitted). In concluding that a communication must “definitively and specifically” relate to a violation of a statute or rule listed in Section 806, the District Court relied upon the decision of the U.S. Department of Labor Administrative Review Board (“ARB”) in Platone v. FLYI, Inc., ARB 04-154, 2006 WL 3246910, at *8 (Dep’t of Labor Sept. 29, 2006), aff'd 548 F.3d 322 (4th Cir.2008), and court decisions that endorsed Pla-tone’s “definitive and specific” standard. Finding that the allegations of the Complaint failed to satisfy this standard, the District Court did not reach the other elements of a prima facie Section 806 case, declined to exercise supplemental jurisdiction over the state law claims, and dismissed the Complaint without prejudice.

The District Court’s Order dismissing the Complaint granted Wiest leave to file an amended complaint. Rather than filing an amended complaint, Wiest, on August 10, 2011, presented a motion entitled “Motion for Reconsideration Nunc Pro Tunc By the Eastern District Court En Banc of Judge Pratter Memorandum Opinion of July 21, 2011, Or, In the Alternative, Motion to Dismiss Plaintiffs’ Complaint with Prejudice and Enter a Final Appealable Order and Judgment” (“Motion for Reconsideration”). In his Motion for Reconsideration, Wiest raised for the first time the argument that the ARB overruled Pla-tone ’s “definitive and specific” standard in favor of a “reasonable belief’ standard in Sylvester v. Parexel Int’l LLC, ARB 07-123, 2011 WL 2165854, at *11 (Dep’t of Labor May 25, 2011) (en banc). Wiest argued that he was entitled to reconsideration because Sylvester was an intervening change in controlling law, and that the District Court’s reliance on the ARB’s prior Platone decision was a clear error of law.

The District Court disagreed, reasoning that Sylvester was not an intervening decision because, although the ARB issued Sylvester after the parties completed briefing on Tyco’s Motion to Dismiss, the opinion preceded the District Court’s ruling. Additionally, the District Court determined that Sylvester was not controlling precedent, and that even if it was binding, reconsideration was not warranted because (1) its initial decision relied on cases other than Platone, and (2) Sylvester’s alteration of the standard for demonstrating protected activity did not change its conclusion that Wiest failed to establish that he communicated an objectively reasonable belief that Tyco’s conduct violated any statute or rule listed in Section 806.

Wiest filed a notice of appeal on November 23, 2011, to appeal the District Court’s Order denying his Motion for Reconsideration. Wiest did not expressly indicate whether he also was appealing the District Court’s initial Order dismissing the Complaint.

II.

The District Court had jurisdiction under 28 U.S.C. § 1331 and we have appellate jurisdiction under 28 U.S.C. § 1291.

A.. Procedural Issues

Before turning to the merits, we must address three procedural issues. First, Tyco argues that, because Wiest filed his Motion for Reconsideration twenty days after the District Court entered its dismissal Order, the Motion was untimely *127under E.D. Pa. L.R. 7.1(g), which establishes a fourteen day period to file motions for reconsideration.2 As a result, Tyco asserts that we lack jurisdiction over Wiest’s appeal from the District Court’s denial of reconsideration.

We see no jurisdictional bar due to Wiest’s failure to move for reconsideration within the time constraints established by a local rule of court. We have recognized that, in the context of a Federal Rule of Civil Procedure 59(e) motion to alter or amend a judgment, the prescribed time limits are claims-processing rules, rather than jurisdictional rules. Lizardo v. United States, 619 F.3d 273, 276-77 (3d Cir.2010). If the time limit contained within Rule 59(e) is not jurisdictional, we cannot see how the time limit contained within Local Rule 7.1(g) is jurisdictional. In any event, we need not address the consequences of an untimely motion for reconsideration under a local rule because we construe Wiest’s motion as one under Rule 59(e). See, e.g., Fed. Kemper Ins. Co. v. Rauscher, 807 F.2d 345, 348 (3d Cir.1986) (“For purposes of Rule 4(a) of the Federal Rules of Appellate Procedure, we view a motion characterized only as a motion for reconsideration as the functional equivalent of a Rule 59(e) motion to alter or amend a judgment.”) (internal quotation marks omitted); see also Green v. Drug Enforcement Admin., 606 F.3d 1296, 1299 (11th Cir.2010) (noting the prevalence of courts construing motions for reconsideration as Rule 59(e) motions); Auto Servs. Co. v. KPMG, LLP, 537 F.3d 853, 856 (8th Cir.2008) (“A ‘motion for reconsideration’ is not described in the Federal Rules of Civil Procedure, but such a motion is typically construed as either a Rule 59(e) motion to alter or amend the judgment or as a Rule 60(b) motion for relief from judgment.”). Because Wiest filed his Motion for Reconsideration within Rule 59(e)’s twenty-eight day time limit, we conclude that the motion was timely.

Tyco also argues that the scope of our review is limited to the District Court’s November 2011 Order denying reconsideration because Wiest did not designate for appeal the District Court’s July 2011 Order granting Tyco’s Motion to Dismiss. When a party appeals only a specified judgment, we acquire jurisdiction to review only that judgment or a judgment “ ‘fairly inferred’ ” by the notice of appeal. Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 184 (3d Cir.2010) (quoting Elf-man Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1254 (3d Cir.1977)). Yet, we have also held that we “liberally construe[] notices of appeal.” Id. (internal quotations marks omitted). We may exercise appellate jurisdiction over orders not specified in the notice of appeal where: “(1) there is a connection between the specified and unspecified orders; (2) the intention to appeal the unspecified order is apparent; and (3) the opposing party is not prejudiced and has a full opportunity to brief the issues.” Id. (internal quotation marks omitted).

Here, there is an adequate connection between the District Court’s Order denying reconsideration and its underlying Order granting Tyco’s Motion to Dismiss because Wiest requested the District Court to reconsider the legal standard it applied to his Section 806 claims in the original dismissal Order. Second, because the two Orders of the District Court were intertwined, we infer that Wiest intended to appeal the underlying dismissal Order. Wiest’s intention was apparent in his principal brief, in which he argues that the *128District Court erred in granting Tyco’s Motion to Dismiss because it relied on the Platone standard rather than Sylvester and cites the District Court’s dismissal Order throughout the brief. Third, we find no prejudice to Tyco in reviewing the underlying dismissal Order as Tyco has had a full opportunity to brief the corresponding issues.3 As a result, we exercise jurisdiction over both the District Court’s November 2011 Order denying Wiest’s Motion for Reconsideration and its July 2011 Order granting Tyco’s Motion to Dismiss.

Finally, we also reject Tyco’s third procedural argument that Wiest waived any arguments based on Sylvester because he failed to raise those arguments in his brief in opposition to Tyco’s Motion to Dismiss. Although the District Court noted that Wiest first brought Sylvester to its attention in his Motion for Reconsideration and that a motion for reconsideration should not raise new arguments that the party could have made previously, the District Court proceeded to address Sylvester in its reconsideration ruling. The District Court evidently did not deem Wiest to have waived any arguments based on Sylvester, and neither do we.

B. Standard of Review

We have held that “a proper Rule 59(e) motion ... must rely on one of three grounds: (1) an intervening change in controlling law; (2) the availability of new evidence; or (3) the need to correct clear error of law or prevent manifest injustice.” Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir.2010) (citing N. River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir.1995)). We generally review a district court’s denial of reconsideration for abuse of discretion. Max’s Seafood Cafe v. Quinteros, 176 F.3d 669, 673 (3d Cir.1999) (citing N. River Ins., 52 F.3d at 1203). An “errant conclusion of law, an improper application of law to fact, or a clearly erroneous finding of fact” may result in an abuse of discretion. McDowell v. Phila. Housing Auth., 423 F.3d 233, 238 (3d Cir.2005). More specifically, when a district court predicates its denial of reconsideration on an issue of law, our review is plenary, and when it bases its denial on an issue of fact, we review for clear error. Id.

In addition, we review a district court’s dismissal pursuant to Rule 12(b)(6) de novo. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 230 (3d Cir.2008). In Long v. Atlantic City Police Department, 670 F.3d 436 (3d Cir.2012), we concluded that the standards of review for an underlying dismissal order and for the denial of a motion for reconsideration of the dismissal order are functionally equivalent, because we exercise plenary review of the dismissal order as well as of the legal questions in the denial of reconsideration. Id. at 446 & n. 20, 447. Because the issue here is whether the District Court applied the correct legal standard to a claim under Section 806 of SOX, our review is plenary regardless of whether we review the District Court’s application of the standard in its initial dismissal Order or its subsequent Order denying reconsideration.

C. Whistleblower Claims Under Section 806 of SOX

SOX Section 806 prohibits publicly traded companies and their employees from retaliating against an employee who

*129provide[s] information, eause[s] information to be provided, or otherwise assists] in an investigation regarding any conduct which the employee reasonably believes constitutes a violation of section 1341 [mail fraud], 1343 [wire, radio, or television fraud], 1344 [bank fraud], or 1348 [securities and commodities 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 is provided to or the investigation is conducted by ... 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. To establish a prima facie case for a Section 806 claim, the employee must allege that he or she (1) “engaged in a protected activity;” (2) “[t]he respondent knew or suspected that the employee engaged in the protected activity;” (3) “[t]he employee suffered an adverse action;” and (4) “[t]he circumstances were sufficient to raise the inference that the protected activity was a contributing factor in the adverse action.” 29 C.F.R. § 1980.104(e)(2)(i)-(iv).

Section 806 provides that an employee alleging discrimination in violation of SOX may file a complaint with the Secretary of Labor, who may issue a final order. 18 U.S.C. § 1514A(b)(1)(A), (2) (incorporating the Department of Labor complaint procedures under 49 U.S.C. § 42121(b)). If the Secretary fails to issue a final decision within 180 days of the filing of the complaint, the complainant may also file a civil action in federal district court. Id. § 1514A(b)(1)(B). The Secretary of Labor has delegated the authority to review appeals under Section 806 and issue final agency decisions to the ARB. Delegation of Authority and Assignment of Responsibility to the Administrative Review Board, 75 Fed. Reg. 3924, 3924-25 (Jan. 25, 2010).

Focusing on the “protected activity” prong in its Memorandum accompanying its Order granting Tyco’s Motion to Dismiss, the District Court invoked the ARB’s opinion in Platone and concluded that “[f]or a communication to be protected, it must ‘definitively and specifically’ relate to one of the statutes or rules listed in” Section 806. Wiest, 2011 WL 2923860, at *4. The Court of Appeals cases cited by the District Court in support of its application of the “definitive and specific” standard either relied upon or cited with approval Platone’s standard. See Van Asdale v. Int’l Game Tech., 577 F.3d 989, 996-97 (9th Cir.2009) (deferring to Platone’s “definitive and specific” standard as a reasonable interpretation of the statute); Day v. Staples, Inc., 555 F.3d 42, 55 (1st Cir.2009) (quoting the Fourth Circuit’s opinion affirming the ARB’s decision in Platone in which the court employed the “definitive and specific” standard); Allen v. Admin. Review Bd., 514 F.3d 468, 476-77 (5th Cir.2008) (‘We agree with the ARB’s legal conclusion that an employee’s complaint must ‘definitively and specifically relate’ to one of the six enumerated categories found in” Section 806).

In Sylvester, however, the ARB abandoned the “definitive and specific” standard announced in Platone. Sylvester, 2011 WL 2165854, at *15. The ARB noted that the test adopted in Platone originated in eases under the whistleblower provision in the Energy Reorganization Act, 42 U.S.C. § 5851 (“ERA”). Id. at *14. The ARB explained that, in addition to enumerating specific activities for which employers cannot retaliate against employees, the whistleblower provision of the ERA contains a catch-all provision to protect employees who “assist or participate in ‘a *130proceeding ... or any other action [designed] to carry out the purposes of this chapter or the Atomic Energy Act of 1954, as amended.’ ” Id. (quoting 42 U.S.C. § 5851(a)(1)(F)). According to the ARB, because the ERA does not define “any other action to carry out the purposes of this chapter,” courts interpreted that phrase to require that an employee’s activity definitively and specifically implicate safety because of the ERA’s purpose of protecting employee actions involving nuclear safety. Id.

As the ARB recognized in Sylvester, the SOX whistleblower provision does not contain language similar to the ERA’s catchall provision. Id. Instead, it expressly enumerates the laws and rules to which it applies. Therefore, the ARB concluded that the importation of the definitive and specific standard is “inapposite to the question of what constitutes protected activity under SOX’s whistleblower protection provision.” Id. Moreover, the ARB determined that the definitive and specific standard potentially conflicts with the statutory language of Section 806, which prohibits retaliation against employees for reporting information that he or she reasonably believes violates SOX. Id,4

SOX does not define what constitutes a “reasonable belief.” The ARB interprets the phrase to require that the plaintiff have a subjective belief that the employer’s conduct violates a provision listed within Section 806 and that the belief is objectively reasonable. Id. at *11-12. Indeed, as the ARB noted in Sylvester, the legislative history of Section 806 provides that Congress intended this reasonable belief standard to “impose the normal reasonable person standard used and interpreted in a wide variety of legal contexts (See generally, Passaic Valley Sewerage Commissioners v. U.S. Department of Labor, 992 F.2d 474, 478 [3d Cir.1993]).” Id. at *11 (quoting S.Rep. No. 107-146, at 19 (2002)).

The ARB opined that to meet the subjective element, the plaintiff must actually have believed that the conduct in question violated the laws enumerated in SOX. Id. The ARB explained that “the legislative history of Sarbanes-Oxley makes clear that its protections were ‘intended to include all good faith and reasonable reporting of fraud, and there should be no presumption that reporting is otherwise.’ ” Id. (alteration omitted) (quoting Van Asdale v. Int’l Game Tech., 577 F.3d 989, 1002 (9th Cir.2009) (quoting 148 Cong. Rec. S7418-01, (daily ed. July 26, 2002))). Regarding the objective element, the ARB clarified that the plaintiffs belief “is evaluated based on the knowledge available to a reasonable person in the same factual circumstances with the same training and experi*131ence as the aggrieved employee.” Id. at *12 (quoting Harp v. Charter Commc’ns, Inc., 558 F.3d 722, 723 (7th Cir.2009)).

We conclude that the ARB’s rejection of Platone’s “definitive and specific” standard is entitled to Chevron deference. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (“If ... the court determines Congress has not directly addressed the precise question at issue ... the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”). As previously discussed, Section 806 provides that an employee seeking whistle-blower protection under SOX may file a complaint with the Secretary of Labor, who may issue a final order. 18 U.S.C. § 1514A(b)(1)(A). The Secretary of Labor has delegated the authority to review appeals under Section 806 and issue final agency decisions to the ARB. Delegation of Authority and Assignment of Responsibility to the Administrative Review Board, 75 Fed. Reg. 3924, 3924-25 (Jan. 25, 2010). In United States v. Mead Corp., 533 U.S. 218, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001), the Supreme Court recognized that “express congressional authorizations to engage in the process of ... adjudication that produces ... rulings for which deference is claimed,” is “a very good indicator of delegation meriting Chevron treatment. ...” Id. at 229, 121 S.Ct. 2164. The Court further explained that “[i]t is fair to assume generally that Congress contemplates administrative action with the effect of law when it provides for a relatively formal administrative procedure,” including formal adjudication. Id. at 230 & n. 12, 121 S.Ct. 2164. Applying Mead, the Ninth Circuit held that, the ARB’s interpretation of Section 806 warranted Chevron deference based on this statutory and administrative delegation. Welch v. Chao, 536 F.3d 269, 276 & n. 2 (4th Cir.2008). We agree and hold that the ARB’s interpretation of the “reasonable belief’ standard is entitled to Chevron deference.

The fact that the ARB reconsidered and abandoned the “definitive and specific” standard does not preclude our deference to the reasonable belief standard it subsequently announced in Sylvester. In National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005), the Court explained that “[ajgency inconsistency is not a basis for declining to analyze the agency’s interpretation under the Chevron framework.” Id. at 981, 125 S.Ct. 2688. The Court elaborated that “if the agency adequately explains the reasons for a reversal of policy, change is not invalidating, since the whole point of Chevron is to leave the discretion provided by the ambiguities of a statute with the implementing agency.” Id. (internal quotation marks omitted). Here, the ARB thoroughly explained why it reversed the course it previously set in Platone. See Sylvester, 2011 WL 2165854, at *14-15. Therefore, Chevron deference applies.

While agreeing that the definitive and specific standard should be jettisoned, ami-cus curiae National Whistleblower Center (“NWC”) contends that the objective belief standard established in Sylvester is too stringent. NWC argues that Section 806 protects an employee as long as he or she has a good faith belief in the existence of a violation. For support, NWC relies on our decision in Passaic Valley Sewerage Commissioners v. U.S. Department of Labor, 992 F.2d 474 (3d Cir.1993).

In Passaic Valley, we interpreted the whistleblower provision of the Clean Water Act, which protects employees who have “filed, instituted, or caused to be filed or instituted any proceeding under” the Clean Water Act. Id. at 478 (quoting 33 *132U.S.C. § 1367(a)). At issue was whether the term “proceeding” included internal complaints. Id. at 475. We noted that, if the whistleblower provision was to accomplish the goals of the statute, then “employees must be free from threats to their job security in retaliation for their good faith assertions of corporate violations of the statute.” Id. at 478. Affording Chevron deference to the Secretary’s interpretation, we upheld his construction that “all good faith intracorporate allegations are fully protected from retaliation under” the Clean Water Act’s whistleblower provision. Id. at 480.

Because the legislative history of Section 806 references Passaic Valley in stating Congress’s intention “to impose the normal reasonable person standard used and interpreted in a wide variety of legal contexts,” S.Rep. No. 107-146, at 19 (2002), NWC contends that Congress intended to adopt Passaic Valley’s good faith belief test as the only standard to meet in bringing a claim under Section 806. We disagree. First, at issue in Passaic Valley was the meaning of the term “proceeding,” Passaic Valley, 992 F.2d at 478, not the phrase “reasonably believes.” As a result, its standard does not control the issue at hand. Second, a good faith belief goes to the employee’s subjective belief that a violation occurred, which is only one element of the reasonable belief standard applicable to Section 806. Therefore, whatever guidance Passaic Valley provides, it relates only to the subjective element of a reasonable belief test. As explained in Sylvester, the reasonable belief standard also includes an objective element. Sylvester, 2011 WL 2165854, at *11. As we did in Passaic Valley, and as explained above, we defer to the administering agency’s reasonable interpretation of the statute. As a result, an employee must establish not only a subjective, good faith belief that his or her employer violated a provision listed in SOX, but also that his or her belief was objectively reasonable. Id. at *11. A belief is objectively reasonable when a reasonable person with the same training and experience as the employee would believe that the conduct implicated in the employee’s communication could rise to the level of a violation of one of the enumerated provisions in Section 806. Id. at *11-12.

The Dissent contends that we have adopted an internally inconsistent test by recognizing that an employee must have an objectively reasonable belief of a violation of one of the listed federal laws but not a reasonable belief that each element of a listed anti-fraud law is satisfied. We perceive no inconsistency because we do not think Congress intended such a formalistic approach to the question of whether an employee has engaged in “protected activity.” As so aptly stated by our dissenting colleague, the purpose of “[wjhistleblower statutes like SOX § 806 [is] to protect people who ... stand against institutional pressures and say plainly, “what you are doing here is wrong’ ... in the particular way identified in the statute at issue.” (Dissenting Op. at 138.) By identifying conduct that falls within the ample bounds of the anti-fraud laws, an employee has done just that. That employee should not be unprotected from reprisal because she did not have access to information sufficient to form an objectively reasonable belief that there was an intent to defraud or the information communicated to her supervisor was material to a shareholder’s investment decision. “Congress chose statutory language which ensures that ‘an employee’s reasonable but mistaken belief that an employer engaged in conduct that constitutes a violation of one of the six enumerated categories [set forth in § 806] is protected.’ ” Van Asdale, 577 F.3d at 1001 (quoting Allen, 514 F.3d at 477). An *133employee’s lack of knowledge of certain facts that pertain to an element of one of the anti-fraud laws would be relevant to, but not dispositive of, whether the employee did have an objectively reasonable belief that a listed anti-fraud law had been violated. Indeed, whether an employee has an objectively reasonable belief may not always be decided as a matter of law. See Allen, 514 F.3d at 477-78. Indeed, this issue would generally not be amenable to adjudication on the basis of the aver-ments of a complaint that concerns a communication that relates in an understandable way to one of the anti-fraud provisions listed in § 806.

In addition to rejecting the definitive and specific standard that the District Court relied upon in granting Tyco’s Motion to Dismiss, Sylvester conflicts with two additional legal conclusions reached by the District Court relating to protected activity under Section 806. First, in dismissing Wiest’s Complaint, the District Court concluded that an “employee’s communication must convey that his concern with any alleged misconduct is linked to ‘an objectively reasonable belief that the company intentionally misrepresented or omitted certain facts to investors, which were material and which risked loss.’ ” Wiest, 2011 WL 2923860, at *4 (quoting Day v. Staples, Inc., 555 F.3d 42, 56 (1st Cir.2009)). Sylvester expressly rejected such an interpretation. Observing that “[s]ome courts have misinterpreted [Platone’s ] analysis as a requirement that SOX complainants must allege elements of a securities fraud claim for protection,” the ARB reasoned that “requiring a complainant to prove or approximate the specific elements of a securities law violation contradicts the statute’s requirement that an employee have a reasonable belief of a violation of the enumerated statutes.” Sylvester, 2011 WL 2165854, at *18. The ARB further explained, “a complainant can engage in protected activity under Section 806 even if he or she fails to allege or prove materiality, scienter, reliance, economic loss, or loss causation.” Id. We find this interpretation to be reasonable because there is nothing in the statutory text that suggests that a complainant’s communications must assert the elements of fraud in order to express a reasonable belief that his or her employer is violating a provision listed in Section 806. Therefore, the District Court erred by requiring that an employee’s communication reveal the elements of securities fraud, including intentional misrepresentation and materiality.

Second, the District Court concluded that to constitute protected activity, the information contained within an employee’s communication must implicate “a reasonable belief of an existing violation.” Wiest, 2011 WL 2923860, at *4 (emphasis added) (citing Livingston v. Wyeth,