Overview
Judge Abrams yesterday dismissed the complaint of a former Federal Reserve bank examiner who claimed she was fired after identifying a lack of internal controls at Goldman Sachs. The plaintiff had alleged that she told her supervisors at the Fed that Goldman had "no firmwide conflict of interest policy," in violation of SR 08-08, a Federal Reserve guideline that served as the basis for the plaintiff's examination of Goldman. When she refused to alter her conclusion, the plaintiff alleged, she was fired in retaliation. The Court dismissed the claims under the Federal Deposit Insurance Act's whistleblower statute (Section 1831j). First, Judge Abrams held that the statute did not apply to individuals, dismissing the claims against the plaintiffs' former supervisors. Moving next to the claims against the New York Fed, Judge Abrams held that neither of the plaintiff's theories stated a claim under the whistleblower statute:
[Plaintiff's first] allegation—that she was fired because she “refus[ed] to change her examination findings”—does not assert a protected activity within the scope of § 1831j. Section 1831j emphasizes the provision of information: employees may not be subjected to adverse action “because” they “provided information” about one of the enumerated types of wrongdoing. . . Section 1831j’s protections attach when an individual discloses protected information to a third party, not when she is asked to alter that information. *** [To state her second claim,] Plaintiff must plausibly allege that she “provided information” about the violation of a “law or regulation.” Plaintiff has alleged that she was terminated because she provided information about a possible violation of SR 08-08. Therefore, the question before the Court is whether SR 08-08 is a “law or regulation.” . . . The Court expresses no conclusion as to whether Goldman Sachs was or was not in compliance with SR 08-08. Rather, it concludes only that SR 08-08 is an advisory letter that does not carry with it the force of law. Assuming as true the allegations in Plaintiff’s FAC, Plaintiff nonetheless did not reveal a violation of a “law or regulation” when she disclosed that Goldman Sachs was not in compliance with SR 08-08. This “finding” may well have been important, but it did not fall into one of the categories that Congress determined was entitled to protection. Under the facts alleged in the FAC, Plaintiff is thus not a “whistleblower” within the meaning of § 1831j.