Nielsen v. AECOM Technology Corp., 762 F.3d 214

Nielsen, a fire-engineering manager for AECOM, alleged a subordinate approved fire‑safety plans without review; he complained internally and was later terminated. He claims the termination was retaliation for reporting alleged fraud against shareholders under SOX § 806 (18 U.S.C. § 1514A).
Nielsen filed an administrative complaint with DOL; the ALJ dismissed and he appealed. While his ARB appeal was pending, he brought a de novo federal suit against AECOM and its subsidiary; the district court dismissed the claim against AECOM under Rule 12(b)(6).
The district court applied a Second Circuit nonprecedential standard (Vodopia) requiring communications to “definitively and specifically” relate to an enumerated SOX offense; the Second Circuit panel here rejects that standard.
The Second Circuit adopts the ARB’s Sylvester approach (subjective belief plus objective reasonableness measured against a reasonable person with similar training/experience) as persuasive under Skidmore/Mead, and abrogates Vodopia’s “definitively and specifically” test.
Applying the reasonable‑belief standard to Nielsen’s complaint, the court holds his allegations are conclusory and too trivial/tenuous to show an objectively reasonable belief that the conduct violated the enumerated statutes (mail, wire, bank, securities fraud) or constituted fraud against shareholders; dismissal is affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Proper standard for § 1514A protected activity	Nielsen: his complaints about false approvals were protected whistleblowing	AECOM: his reports did not allege conduct that reasonably implicated an enumerated SOX offense	Court: adopt ARB’s reasonable‑belief test (subjective belief + objective reasonableness); abrogate “definitively and specifically” test
Whether Nielsen plausibly alleged protected activity under § 1514A	Nielsen: he reasonably believed AECOM committed shareholder/mail/wire fraud by falsely approving plans	AECOM: allegations are conclusory, trivial, and do not plead scheme to deprive money/property or shareholder fraud	Court: allegation insufficient; failed to plead objective reasonableness — claim dismissed
Applicability of agency deference to ARB interpretations	Nielsen: ARB interpretations guide statutory meaning	AECOM: (implicitly) ARB interpretation not binding on courts	Court: need not decide Chevron; Sylvester interpretation is persuasive and entitled to Skidmore deference
Whether amendment should be permitted	Nielsen: (did not request amendment)	AECOM: move to dismiss	Court: denied as Nielsen did not seek leave to amend; dismissal stands

Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility pleading standard governs Rule 12(b)(6))
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (complaint must plead facts raising claim above speculative level)
Skidmore v. Swift & Co., 323 U.S. 134 (1944) (agency interpretations entitled to weight according to persuasiveness)
United States v. Mead Corp., 533 U.S. 218 (2001) (distinguishing Chevron deference and Skidmore persuasive‑weight analysis)
Bechtel v. Admin. Review Bd., 710 F.3d 443 (2d Cir. 2013) (describing § 1514A framework)
Platone v. U.S. Dep’t of Labor, 548 F.3d 322 (4th Cir. 2008) (earlier ARB‑endorsed "definitively and specifically" test for § 1514A communications)
Wiest v. Lynch, 710 F.3d 121 (3d Cir. 2013) (application of reasonable‑belief analysis in context)
Lockheed Martin Corp. v. Admin. Review Bd., 717 F.3d 1121 (10th Cir. 2013) (consideration of ARB interpretations regarding § 1514A)