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Villanueva v. United States Department of Labor

United States Court of Appeals, Fifth Circuit

February 12, 2014

WILLIAM VILLANUEVA, Petitioner
v.
UNITED STATES DEPARTMENT OF LABOR, Respondent

Petition for Review of an Order of the United States Department of Labor.

For WILLIAM VILLANUEVA, Petitioner: David N. Mair, Esq., Kaiser, Saurborn, & Mair, P.C., New York, NY.

For UNITED STATES DEPARTMENT OF LABOR, Respondent: Sharon Swingle, Mark Bernard Stern, Esq., U.S. Department of Justice, Civil Division, Appellate Staff, Washington, DC; Steven Jay Mandel, Mary Elizabeth McDonald, U.S. Department of Labor, Office of the Solicitor, Washington, DC.

For CORE LABORATORIES N.V., SAYBOLT DE COLOMBIA LIMITADA, Intervenors: W. Carl Jordan, Esq., Grace Ho, Esq., Vinson & Elkins, L.L.P., Houston, TX.

For NATIONAL WHISTLEBLOWERS CENTER, Amicus Curiae: Richard Randolph Renner, Kalijarvi, Chuzi, Newman & Fitch, P.C., Washington, DC.

For EQUAL EMPLOYMENT ADVISORY COUNCIL, CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, Amice Curiae: Rae Thiesfield Vann, General Counsel, Norris, Tysse, Lampley & Lakis, L.L.P., Washington, DC.

Before JONES, DENNIS, and HIGGINSON, Circuit Judges.

OPINION

Page 104

DENNIS, Circuit Judge:

Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act (" SOX" ), " creates a private cause of action for employees of publicly-traded companies who are retaliated against for engaging in certain protected activity." Allen v. Admin. Review Bd., 514 F.3d 468, 475 (5th Cir. 2008); see 18 U.S.C. § 1514A(a). Generally speaking, § 806 bars any publicly traded company from retaliating against an employee who provides information to his or her employer regarding conduct that the employee reasonably believes violates federal mail-, wire-, bank-, or securities-fraud statutes; any rule or regulation of the Securities and Exchange Commission (" SEC" ); or any other federal law related to fraud against shareholders. See 18 U.S.C. § 1514A(a)(1)(C).[1]

The petitioner in this case, William Villanueva (" Villanueva" ), is a Colombian national

Page 105

who, until recently, was employed in Colombia by Saybolt de Colombia Limitada (" Saybolt Colombia" ), an indirect affiliate of Core Laboratories N.V. (" Core Labs" ).[2] Core Labs is a Netherlands limited liability company, whose stock is publicly traded in the United States and therefore is an entity covered under § 806. See id. Core Labs provides services to petroleum-industry clients in more than fifty countries and has more than seventy offices. Villanueva alleged that starting in January 2008 he raised concerns to several Core Labs and Saybolt Colombia employees that Core Labs was orchestrating a transfer-pricing scheme by requiring Saybolt Colombia to use Core Laboratories Sales, N.V. (" Core Labs Sales" ), domiciled in the Dutch Antilles, as the contracting party for inspection services that Saybolt Colombia performed for non-Colombian clients. Villanueva alleged that as part of the scheme, ten percent of the contract revenues were paid to Core Lab Sales even though it neither procured the contracts nor performed the services. Villanueva further claimed that, at the direction of Core Labs officials in Houston, Saybolt Colombia's accounting department wrongfully claimed value-added tax (" VAT" ) exemptions on work transferred to Core Lab Sales and that, as a result, Saybolt Colombia was able to underreport its taxable revenue to Colombian authorities. Subsequently, Villanueva was passed over for a pay raise at Saybolt Colombia and eventually terminated.

Villanueva filed a complaint with the Occupational Safety and Health Administration (" OSHA" ), asserting that Saybolt Colombia and Core Labs had violated § 806 by retaliating against him for blowing the whistle on the alleged scheme to violate Colombian tax law. OSHA, an Administrative Law Judge (" ALJ" ), and the Administrative Review Board (" Board" ) all rejected Villanueva's complaint. Villanueva now appeals to this court, see 18 U.S.C. § 1514A(b)(2)(A); 49 U.S.C. § ...


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