Lindsey Gulden; Damian Burch v. EXXON MOBIL CORPORATION On Appeal from the United States District Court for the…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 23-1859
____________
LINDSEY GULDEN; DAMIAN BURCH,
Appellants
v.
EXXON MOBIL CORPORATION
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 3:22-cv-07418)
District Judge: Honorable Michael A. Shipp
____________
Argued: March 6, 2024
Before: JORDAN, PHIPPS, and FREEMAN, Circuit Judges
(Filed: October 15, 2024)
Neil L. Henrichsen [ARGUED]
HENRICHSEN L AW G ROUP
1725 I Street NW
Suite 300
Washington, DC 20006

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Counsel for Appellants Lindsey Gulden and
Damian Burch
Siri Nelson
N ATIONAL WHISTLEBLOWER CENTER
3238 P Street NW
Washington, DC 20007
Counsel for Amicus National Whistleblower
Center in Support of Appellant
David Edeli [ARGUED]
UNITED STATES D EPARTMENT OF LABOR
O FFICE OF THE SOLICITOR
N-2716
200 Constitution Avenue NW
Washington, DC 20210
Counsel for Amicus United States Department
of Labor in Support of Appellant

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Richard J. Cino [ARGUED]
Bianca M. Olivadoti
JACKSON LEWIS
200 Connell Drive
Suite 2000
Berkeley Heights, NJ 07922
Counsel for Appellee Exxon Mobil Corporation
David M. Morrell [ARGUED]
J ONES DAY
51 Louisiana Avenue NW
Washington, DC 20001
Counsel for Amici United States Chamber of
Commerce, Association of American Railroads,
National Association of Manufacturers, and
Washington Legal Foundation in Support of
Appellee
Daryl Joseffer
Tara S. Morrissey
Kevin R. Palmer
U NITED STATES CHAMBER L ITIGATION CENTER
1615 H Street NW
Washington, DC 20062
Counsel for Amicus United States Chamber of
Commerce in Support of Appellee

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_______________________
OPINION OF THE COURT
_______________________
PHIPPS, Circuit Judge.
After two employees of a publicly traded company raised
concerns that the company overstated its earnings, they were
fired. They then availed themselves of the federal protections
for securities-fraud whistleblowers by filing a complaint with
the Secretary of Labor. That prompted an administrative
adjudicatory proceeding in which they obtained a preliminary
order for reinstatement to their prior positions. The company,
however, refused to comply with that order and did not
reinstate them.
The former employees then initiated a separate action
against the company in the District Court to enforce that order.
The District Court dismissed that enforcement action for a lack
of subject-matter jurisdiction because, under its interpretation
of the relevant statute, it lacked the power to compel
compliance with the preliminary order.
The former employees appealed that ruling. But while this
appeal was pending, they elected to forgo the rest of the
administrative process and to instead challenge their
terminations through a separate civil action in federal court.
After they did so, the agency terminated the administrative
proceedings. The company then moved to dismiss this appeal
on mootness grounds.
The former employees’ request to enforce the agency’s
preliminary reinstatement order now fails to satisfy the
redressability requirement for Article III standing. That is so
because the preliminary reinstatement order was extinguished
with the dismissal of the administrative proceedings and a

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federal court cannot compel compliance with a non-extant
administrative order. The former employees have therefore
lost Article III standing during the pendency of this litigation,
and there is no applicable exception to prevent a dismissal on
mootness grounds. Accordingly, we will vacate the District
Court’s judgment and remand with instructions for the District
Court to dismiss the case on mootness grounds.
I. BACKGROUND
In 2019, Lindsey Gulden, Ph.D., and Damian Burch, Ph.D.,
worked for Exxon Mobil Corporation, one of the largest oil and
gas companies in the world. As part of their job duties, they
analyzed and evaluated Exxon Mobil’s oil reserves in the
Delaware Basin in western Texas and southern New Mexico.
On April 26, 2019, Exxon Mobil announced its earnings as
a publicly traded company. In doing so, Exxon Mobil provided
its projections for oil and gas production from the Delaware
Basin. Gulden and Burch, however, believed that Exxon
Mobil’s earnings statement did not account for the slower-
than-expected drilling speeds in the Delaware Basin in 2018
and 2019 and, as a result, overestimated the value of the oil and
gas production by about $20 billion. Based on that concern,
they objected to the earnings statement internally. Then, on
September 13, 2020, The Wall Street Journal, in an article that
identified its sources only as unnamed current and former
employees, reported that Exxon Mobil had manipulated its
projections related to the Delaware Basin by overestimating
how quickly it could drill. Within three months of the article’s
publication, Exxon Mobil fired both Gulden and Burch.
The Sarbanes-Oxley Act of 2002, commonly abbreviated
as ‘SOX,’ contains protections for securities-fraud
whistleblowers and provides an opportunity for redress
through an administrative enforcement action. See 18 U.S.C.
§ 1514A(b)(1)(A). On February 10, 2021, Gulden and Burch
filed an administrative complaint with the Secretary of Labor
claiming that Exxon Mobil terminated their employment

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unlawfully. Specifically, they asserted that Exxon Mobil
violated SOX’s prohibitions on terminating an employee of a
publicly traded company for (i) providing a supervisor with
information reasonably believed to relate to securities fraud,
see id. § 1514A(a)(1)(C), and for (ii) causing a proceeding to
be filed related to a violation of a federal securities law, see id.
§ 1514A(a)(2). Based on those claimed violations, Gulden and
Burch sought several forms of relief, including reinstatement.
See id. § 1514A(c).
That administrative action started auspiciously for Gulden
and Burch. After a preliminary investigation, a designee of the
Secretary of Labor found reasonable cause to believe that
Exxon Mobil had terminated them in violation of SOX’s
whistleblower protections. And, over Exxon Mobil’s
objection, on October 6, 2022, the official issued a preliminary
order directing Exxon Mobil to reinstate them to their former
positions.
The problem for Gulden and Burch was that Exxon Mobil
refused to comply with the preliminary reinstatement order.
To enforce the order, they initiated this lawsuit for injunctive
relief in District Court in December 2022. In its motion to
dismiss, Exxon Mobil disputed the District Court’s jurisdiction
to compel compliance with the preliminary reinstatement order
issued by the Department of Labor. The District Court granted
that motion and dismissed the case for a lack of subject-matter
jurisdiction. See Gulden v. Exxon Mobil Corp., 2023 WL
3004854, at *3–4 (D.N.J. Apr. 19, 2023). Through a timely
appeal, Gulden and Burch invoked this Court’s appellate
jurisdiction to challenge that final decision. See 28 U.S.C.
§ 1291; Fed. R. App. P. 4(a)(1)(A).
The administrative adjudication remained active while
Gulden and Burch were trying to enforce the preliminary
reinstatement order in federal court. And in April 2024, the
administrative law judge dismissed Gulden and Burch’s
second claim – the one predicated on causing a proceeding

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related to securities fraud to be filed, see 18 U.S.C.
§ 1514A(a)(2) – because Gulden and Burch did not identify
any such proceeding. By that time, the administrative
adjudication had been ongoing for more than 1,150 days, and
SOX contains a ‘kick out’ provision that permits a putative
whistleblower to sue in federal district court if his
administrative complaint is not finally resolved within
180 days. See id. § 1514A(b)(1)(B); Jaludi v. Citigroup & Co.,
57 F.4th 148, 152 (3d Cir. 2023). In June 2024, Gulden and
Burch exercised that kick-out option and sued Exxon Mobil in
federal court rather than continue with the administrative
adjudication of their remaining whistleblower claim – the one
for providing a supervisor with information reasonably
believed to relate to securities fraud, see 18 U.S.C.
§ 1514A(a)(1)(C).
After receiving notice of Gulden and Burch’s election to
litigate in federal court, the administrative law judge dismissed
the administrative proceedings through an order dated July 2,
2024. Exxon Mobil then moved to dismiss this appeal on
mootness grounds. In opposing that motion, Gulden and Burch
argue that despite the dismissal of the administrative
proceedings, the preliminary order of reinstatement may still
be enforced in federal court.
II. D ISCUSSION
For a case to be moot in the Article III sense, all plaintiffs
who once had Article III standing must have lost it, and none
of the recognized exceptions to mootness can apply. See
Chafin v. Chafin, 568 U.S. 165, 172 (2013) (“The ‘case-or-
controversy requirement subsists through all stages of federal
judicial proceedings, trial and appellate.’” (quoting Lewis v.
Cont’l Bank Corp., 494 U.S. 472, 477 (1990))); see also
Acheson Hotels, LLC v. Laufer, 601 U.S. 1, 8–9 (2023)
(Thomas, J., concurring in the judgment) (explaining “[a]s an
analytical matter” that the question of standing is “logically
antecedent” to mootness). Article III standing requires (i) an
injury-in-fact; (ii) fairly traceable to the defendant’s conduct;

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and (iii) capable and likely of being prevented or redressed
through the exercise of traditional judicial powers. See Spokeo,
Inc. v. Robins, 578 U.S. 330, 338 (2016). A plaintiff must
satisfy those elements when it first brings a claim and requests
relief. See Friends of the Earth, Inc. v. Laidlaw Env’t Servs.
(TOC), Inc., 528 U.S. 167, 185 (2000) (“[A] plaintiff must
demonstrate standing separately for each form of relief
sought.”). But the loss of one or more of those elements during
the pendency of the litigation, if established by the defendant,
subjects the affected claims or requests for relief to potential
dismissal on mootness grounds. See West Virginia v. EPA,
597 U.S. 697, 719 (2022) (explaining that the government
“bears the burden to establish that a once-live case has become
moot”); FBI v. Fikre, 601 U.S. 234, 241 (2024) (confirming
that the burden of proving mootness applies to both
governmental defendants and private defendants alike). The
loss of Article III standing by itself, however, does not moot a
case; the defendant must also demonstrate that no mootness
exception applies. See Friends of the Earth, 528 U.S. at 190
(“Careful reflection on the long-recognized exceptions to
mootness, however, reveals that the description of mootness as
‘standing set in a time frame’ is not comprehensive.”); Lutter
v. JNESO, 86 F.4th 111, 130 (3d Cir. 2023) (“Despite its
similarities to standing, mootness is not merely the post-suit
absence of standing.”). Thus, a case cannot be moot if a
plaintiff establishes Article III standing, and the defendant is
unable to demonstrate both the loss of standing and the
inapplicability of the exceptions to mootness.
Injury-in-Fact – Then and Now
For a plaintiff to have an injury-in-fact, there must be an
invasion of a legally protected interest that is concrete,
particularized, and actual or imminent. See Clapper v.
Amnesty Int’l USA, 568 U.S. 398, 408–09 (2013); Lujan v.
Defs. of Wildlife, 504 U.S. 555, 560 (1992). When they filed
this suit, Gulden and Burch had such an injury-in-fact because
Exxon Mobil was not complying with the preliminary
administrative reinstatement order. By not reinstating Gulden

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and Burch to their prior positions despite that order, Exxon
Mobil invaded their legally protected interests and thus
inflicted an injury. That injury was concrete – not abstract –
because the order required their reinstatement to their former
positions at Exxon Mobil. See TransUnion LLC v. Ramirez,
594 U.S. 413, 423 (2021) (“Under Article III, federal courts do
not adjudicate hypothetical or abstract disputes.”). That injury
was also particularized because the order applied personally to
Gulden and Burch. See Spokeo, 578 U.S. at 339 (“For an injury
to be ‘particularized,’ it ‘must affect the plaintiff in a personal
and individual way.’” (quoting Lujan, 504 U.S. at 560 n.1)).
Finally, that injury was actual because the order was “not
conjectural or hypothetical” but instead commanded their
reinstatement, and Exxon Mobil had not done so. Id. (quoting
Lujan, 504 U.S. at 560). Thus, when they filed this suit,
Gulden and Burch had the requisite injury-in-fact for
Article III standing. And that injury-in-fact remains unabated
because Exxon Mobil did not comply with the reinstatement
order.
Fairly Traceable Causation – Then and Now
Gulden and Burch’s claims have continuously satisfied the
causation element for Article III standing since this lawsuit’s
inception. When this suit was filed, the injury-in-fact could be
fairly traced to Exxon Mobil’s non-compliance with the
preliminary reinstatement order. See Dep’t of Educ. v. Brown,
600 U.S. 551, 561 (2023) (“[T]here must be a causal
connection between the injury and the conduct complained of.”
(quotation omitted)). Because that connection was between the
injury-in-fact and Exxon Mobil’s actions – as opposed to “the
independent action of some third party not before the court” –
the causation element was met. Lujan, 504 U.S. at 560
(quoting Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 41–
42 (1976)). And because Exxon Mobil has not reinstated
Gulden or Burch, their claimed injury-in-fact remains fairly
traceable to Exxon Mobil to this day.

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Redressability – Then but Not Now
Gulden and Burch’s injury-in-fact was initially redressable
because it was capable and likely of being resolved through the
exercise of a traditional judicial function. See Spokeo,
578 U.S. at 338; see also United States v. Texas, 599 U.S. 670,
676 (2023) (“[T]he asserted injury [must] traditionally [be]
redressable in federal court.”); Raines v. Byrd, 521 U.S. 811,
819 (1997) (“[T]he dispute [must be] ‘traditionally thought to
be capable of resolution through the judicial process[.]’”
(quoting Flast v. Cohen, 392 U.S. 83, 97 (1968))). The only
relief that Gulden and Burch sought in this suit was a court-
issued injunction compelling Exxon Mobil to reinstate them
consistent with the preliminary order. By requesting an order
for a party to perform “an affirmative act or course of conduct,”
Gulden and Burch sought a mandatory injunction from the
District Court, and that is a form of relief within the traditional
exercise of judicial powers. Dan B. Dobbs & Caprice L.
Roberts, Law of Remedies: Damages, Equity, Restitution
§ 2.9(1), at 165 (3d ed. 2018); cf. id. at 164 (“Reinstatement in
a job is a remedy for job discrimination in some cases and the
reinstatement order is a form of injunction.”). And from the
time that Gulden and Burch filed this suit until the dismissal of
the administrative proceeding, an injunction enforcing the
reinstatement order would likely have provided some redress
for their injury-in-fact: a favorable ruling from a federal court
would have compelled Exxon Mobil to reinstate them.
But with the dismissal of the administrative proceedings on
July 2, 2024, the injury-in-fact is no longer likely to be
redressed through a favorable court ruling. As a benchmark,
in an Article III court, only ancillary matters – those collateral
to the lawsuit, such as fee petitions and bills of costs – survive
the dismissal of the suit. See Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 379–80 (1994) (explaining that
under their ancillary jurisdiction, courts may exercise powers
over incidental collateral matters after the dismissal of an
action). Also, in federal court, an order granting preliminary
injunctive relief is not considered an ancillary matter, and it is

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extinguished upon the dismissal of the suit. See United States
ex rel. Bergen v. Lawrence, 848 F.2d 1502, 1512 (10th
Cir. 1988) (“With the entry of the final judgment, the life of the
preliminary injunction came to an end, and it no longer had a
binding effect on [anyone]. The preliminary injunction was by
its very nature interlocutory, tentative and impermanent.”
(quoting Madison Square Garden Boxing, Inc. v. Shavers,
562 F.2d 141, 144 (2d Cir. 1977))); 11A Charles Alan Wright,
Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure § 2947 (3d ed. 2013 & Supp. 2024) (“[A]
preliminary injunction normally lasts until the completion of
the trial on the merits, unless it is dissolved earlier by court
order or the consent of the parties.”). By way of comparison,
the adjudicatory powers of federal agencies cannot exceed the
judicial powers of federal courts, and for disputes involving
private rights, the adjudicatory powers of federal agencies are
at their nadir. See SEC v. Jarkesy, 144 S. Ct. 2117, 2132
(2024) (“[M]atters concerning private rights may not be
removed from Article III courts.”); N. Pipeline Constr. Co. v.
Marathon Pipe Line Co., 458 U.S. 50, 70 (1982) (“Private-
rights disputes . . . lie at the core of the historically recognized
judicial power.”); Murray’s Lessee v. Hoboken Land &
Improvement Co., 59 U.S. (18 How.) 272, 284 (1855)
(explaining that Congress cannot “withdraw from judicial
cognizance any matter which, from its nature, is the subject of
a suit at the common law, or in equity, or admiralty” (emphasis
added)). Thus, because a preliminary injunction in federal
court has no binding effect after the dismissal of the suit, a
preliminary reinstatement order issued by an agency cannot
survive dismissal of the administrative proceeding. Consistent
with that principle, both the Administrative Procedure Act and
the relevant Department of Labor regulations set forth the
powers held by the agency in adjudicating disputes involving
SOX whistleblowers, and neither provides for the continuation
of a preliminary order after the dismissal of the proceeding.
See 5 U.S.C. § 556(c); 29 C.F.R. § 18.12(b). Complementing
those authorities is an opinion by the Department of Labor’s
Administrative Review Board explaining that, after a SOX

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claimant sues in federal district court, the agency “no longer
ha[s] jurisdiction to enter any order in the case other than one
dismissing it on the ground that [the claimant] removed the
case to district court.” Powers v. Pinnacle Airlines, Inc., ARB
Case No. 05-138, 2005 WL 4889054, at *3 (Dep’t of Labor
Oct. 31, 2005). In sum, broad Article III principles as well as
the statutory and regulatory limitations of the Department of
Labor’s powers leave no doubt that a preliminary reinstatement
order does not survive dismissal of the underlying
administrative proceeding – especially after a SOX
whistleblower elects to sue in federal court.1
Without an extant administrative order, there is nothing for
a federal court to enforce – and enforcement of the preliminary
reinstatement order is the only relief requested in this suit. See
Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (“No matter
how vehemently the parties continue to dispute the lawfulness
of the conduct that precipitated the lawsuit, the case is moot if
the dispute ‘is no longer embedded in any actual controversy
about the plaintiffs’ particular legal rights.’” (quoting Alvarez
v. Smith, 558 U.S. 87, 93 (2009))). Thus, Gulden and Burch’s
request to enforce the now extinguished preliminary
reinstatement order is not presently redressable.
1 Our dissenting colleague frames the redressability issue as
whether the mere initiation of a federal suit through the kick-
out provision, see 18 U.S.C. § 1514A(b)(1)(B), suffices to
moot a preliminary order of reinstatement issued in
administrative proceedings. That circumstance presents,
admittedly, a more difficult question, but that is not the
scenario here because after Gulden and Burch exercised the
kick-out option, the presiding administrative law judge issued
an order dismissing the administrative proceedings, and, as
described above, that final order extinguishes the prior
preliminary reinstatement order in those administrative
proceedings.

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The Inapplicability of the Relevant Mootness
Exceptions
In light of Gulden and Burch’s current lack of Article III
standing, this case is moot if no exception to a dismissal on
mootness grounds applies. And here, the only potentially
applicable exceptions are for voluntary cessation and for
conduct capable of repetition yet evading review. See Lutter,
86 F.4th at 131 (“[T]he absence of Article III standing is a
necessary condition for mootness, but due to the voluntary-
cessation and capable-of-repetition-yet-evading-review
exceptions, it is not . . . a sufficient condition.”).2
The voluntary-cessation exception applies when a
defendant ceases the allegedly illegal conduct that caused the
injury but remains “free to return to his old ways.” United
States v. W.T. Grant Co., 345 U.S. 629, 632 (1953); see also
Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298,
307 (2012) (“[T]he voluntary cessation of challenged conduct
does not ordinarily render a case moot because a dismissal for
mootness would permit a resumption of the challenged conduct
as soon as the case is dismissed.”).3 But here the defendant,
Exxon Mobil, did not voluntarily change its conduct that
2 The two other mootness exceptions do not apply here. As a
civil case, this case does not implicate the collateral
consequences doctrine for criminal matters. See Sibron v. New
York, 392 U.S. 40, 53–54 (1968). Nor is it a class action, which
in some cases may proceed even if the named plaintiff’s claims
are rendered moot. See Sosna v. Iowa, 419 U.S. 393, 399
(1975).
3 Cf. Los Angeles County v. Davis, 440 U.S. 625, 631 (1979)
(explaining that the voluntary-cessation exception can be
defeated when “(1) it can be said with assurance that there is
no reasonable expectation that the alleged violation will recur,
and (2) interim relief or events have completely and
irrevocably eradicated the effects of the alleged violation”
(citations and internal quotations omitted)).

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caused the injury-in-fact. To the contrary, Exxon Mobil took
the same position throughout: it refused to reinstate Gulden and
Burch. Moreover, the loss of Article III standing here does not
stem from any action by Exxon Mobil, but rather from Gulden
and Burch’s decision to litigate their claims in federal court
pursuant to 18 U.S.C. § 1514A(b)(1)(B), which led to the
dismissal of the administrative proceedings and the
extinguishment of the preliminary reinstatement order. That
voluntary change of conduct by plaintiffs – not the defendant
– does not satisfy the voluntary cessation exception. See
Friends of the Earth, 528 U.S. at 189 (explaining that the
voluntary cessation exception turns on “the defendant’s
voluntary conduct”).4
For similar reasons, the capable-of-repetition-yet-evading-
review exception does not apply here either. The capable-of-
repetition prong of the exception requires “‘a reasonable
expectation’ or a ‘demonstrated probability’ that ‘the same
4 The voluntary cessation doctrine is inapplicable for an
additional reason. That doctrine concerns the loss of an injury-
in-fact during the course of the litigation as a result of the
defendant’s conduct. In that circumstance, the burden on the
defendant to establish mootness is elevated. See West Virginia
v. EPA, 597 U.S. at 719 (explaining that the defendant’s
burden of establishing mootness is “‘heavy’ where . . . ‘[t]he
only conceivable basis for a finding of mootness in th[e] case
is [the respondent’s] voluntary conduct’” (quoting Friends of
the Earth, 528 U.S. at 189) (alterations in original)). But here,
Exxon Mobil makes no effort to prove that the injury-in-fact
requirement is no longer met. Rather, mootness arises because
of the lack of redressability, which Exxon Mobil has
established based on the order dismissing the administrative
proceedings. See Acheson Hotels, LLC, 601 U.S. at 5 (holding
that a case was moot when it was voluntarily dismissed by the
plaintiff after a grant of certiorari but making no mention of the
voluntary cessation exception or an elevated burden on the
defendant to establish mootness).

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controversy will recur involving the same complaining party.’”
FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 463 (2007)
(emphasis added) (quoting Murphy v. Hunt, 455 U.S. 478, 482
(1982) (per curiam)); see also City of Los Angeles v. Lyons,
461 U.S. 95, 109 (1983) (“[T]he capable-of-repetition doctrine
applies only in exceptional situations, and generally only
where the named plaintiff can make a reasonable showing that
he will again be subjected to the alleged illegality.”). Yet here,
there is no reasonable expectation or demonstrated probability
that Gulden and Burch will again invoke the SOX
whistleblower protections against Exxon Mobil. See Alvarez,
558 U.S. at 93 (refusing to apply the capable-of-repetition-yet-
evading-review exception when “nothing suggests that the
individual plaintiffs will likely again prove subject to the
[defendant’s allegedly illegal] seizure procedures”). Also, to
satisfy the evading-review prong of the exception, “the
challenged action [must be] in its duration too short to be fully
litigated prior to its cessation or expiration[.]” Weinstein v.
Bradford, 423 U.S. 147, 149 (1975) (per curiam). But there
was nothing too short about the nature of Exxon Mobil’s
refusal to comply with the preliminary reinstatement order that
would prevent judicial review. Exxon Mobil had disobeyed
that order for over 600 days – from its issuance on October 6,
2022, until the dismissal of the administrative proceedings on
July 2, 2024. Even more, Exxon Mobil demonstrated a
willingness to remain in defiance of the order as long as the
administrative proceedings were ongoing. Thus, neither prong
of the exception applies.
III. C ONCLUSION
Without Article III standing and without satisfying either
relevant mootness exception, Gulden and Burch’s claim for an
injunction enforcing the now extinguished preliminary
reinstatement order is moot. Because mootness is a
justiciability doctrine – meaning a jurisdictional principle
grounded in the Constitution instead of a federal statute – a
mootness determination on appeal forecloses not only this
Court’s statutory appellate jurisdiction but also a district

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court’s statutory subject-matter jurisdiction. Accordingly,
even after a mootness determination, this Court “retain[s]
authority to fashion a decree clarifying the effect of the
mootness on the district court’s initial determination.” N.J.
Tpk. Auth. v. Jersey Cent. Power & Light, 772 F.2d 25, 34
(3d Cir. 1985). And consistent with the long-established
practice of the Supreme Court, we will vacate the judgment of
the District Court and remand the case with instructions to
dismiss it on mootness grounds. See United States v.
Munsingwear, Inc., 340 U.S. 36, 39 (1950) (“The established
practice of the Court in dealing with a civil case from a court
in the federal system which has become moot while on its way
here or pending our decision on the merits is to reverse or
vacate the judgment below and remand with a direction to
dismiss.”); see also N.J. Tpk. Auth., 772 F.2d at 34 (vacating a
district court’s decision following a mootness determination on
appeal and remanding “with directions to dismiss the action in
order to strip the decision of legal consequences” (citing
Munsingwear, 340 U.S. at 40–41)).

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1
Gulden et al. v. Exxon Mobil Corp., No. 23-1859
FREEMAN, Circuit Judge, dissenting:
The Sarbanes-Oxley Act (“SOX”) prohibits companies
from retaliating against their employees who report securities
fraud or assist in securities-fraud investigations. To protect
securities-fraud whistleblowers, SOX permits the Secretary of
Labor to order the immediate reinstatement of an employee
based on a preliminary showing that he was fired for protected
activity. The employer may object, but that does not stay the
preliminary reinstatement order—it remains in effect pending
a hearing and the Secretary’s final decision about
whistleblower retaliation.
SOX also includes a kick-out provision: If the Secretary
takes more than 180 days to adjudicate a retaliation complaint,
the employee may abandon his administrative action and
pursue relief in a federal district court, without first obtaining
a final agency decision.
Here, Plaintiffs Lindsey Gulden and Damian Burch
questioned the truthfulness of Exxon Mobil’s financial
reporting, including its Securities and Exchange Commission
filings. The company later fired them. They filed a SOX
complaint, and the Secretary of Labor investigated. She found
reasonable cause to believe that Exxon fired Plaintiffs in
violation of SOX, so she ordered the company to reinstate them
with back pay while she continued to adjudicate their
complaint. But Exxon Mobil ignored that order, so Plaintiffs
sued them in District Court to enforce it. The District Court
concluded that it lacked jurisdiction to enforce the preliminary
reinstatement order, and Plaintiffs filed this appeal.

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2
While the appeal was pending, the administrative
proceeding continued. In June 2024, over three and a half
years had passed since Plaintiffs first filed their complaint with
the Secretary, and Exxon Mobil remained noncompliant with
the Secretary’s October 2022 preliminary reinstatement order.
Rather than continue to await a final decision from the
Secretary, Plaintiffs kicked their complaint out of the agency
and into the District Court. As a result, the Secretary dismissed
the administrative proceeding.
Exxon Mobil now asks us to dismiss this appeal. It
argues that the end of the administrative proceeding renders
this appeal moot, and the majority agrees. But Exxon Mobil
must establish mootness. In my view, it has not. Therefore,
rather than dismiss this appeal on mootness grounds, I would
address whether the District Court has subject matter
jurisdiction to enforce a preliminary reinstatement order. (To
my mind, it does not.)
I
A SOX administrative action proceeds as follows: First,
an employee who alleges that his employer discharged or
otherwise harmed him because of his participation in a
protected activity files a complaint with the Secretary of Labor.
18 U.S.C. § 1514A(b)(1)(A). The Secretary then adjudicates
the matter using the procedures outlined in an air safety
whistleblower protection statute, the Wendell H. Ford Aviation
Investment and Reform Act for the 21st Century (“AIR21”).
Id. § 1514A(b)(2)(A) (stating that a SOX complaint filed with
the Secretary is governed by the procedures set forth in 49
U.S.C. § 42121(b)). Under AIR21, the Secretary has sixty
days to decide if there is reasonable cause to believe the
complaint has merit and to issue findings. 49 U.S.C.

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§ 42121(b)(2)(A).1 If she finds merit to the complaint, she
must issue a preliminary order directing the employer to (1)
take affirmative action to abate the violation, (2) reinstate the
complainant to his former position with back pay, and (3)
provide compensatory damages. Id.; id. § 42121(b)(3)(B).
The preliminary order becomes final (and not subject to
judicial review) if no one objects to it. Id. § 42121(b)(2)(A);
29 C.F.R. § 1980.106(b).
If a party objects to a preliminary order, an
administrative law judge (“ALJ”) will hold a hearing, make
factual findings, and issue a decision. 29 C.F.R.
§§ 1980.106(a), 1980.109. But “[t]he filing of such objections
shall not operate to stay any reinstatement remedy contained in
the preliminary order.” 49 U.S.C. § 42121(b)(2)(A). A party
may obtain review of an ALJ’s final order in a United States
Court of Appeals. Id. § 42121(b)(4)(A).
But SOX also provides an alternative path to judicial
review. Eschewing the standard final-agency-action
requirement,2 SOX permits a complainant to sue in a district
court if the Secretary of Labor does not issue a final decision
180 days after the complaint is filed. 18 U.S.C.
§ 1514A(b)(1)(B); Jaludi v. Citigroup & Co., 57 F.4th 148,
1 It appears that the 60-day requirement is aspirational. Here,
the Secretary took twenty months to make a preliminary
determination.
2 See Bennett v. Spear, 520 U.S. 154, 175 (1997) (“The
[Administrative Procedure Act], by its terms, provides a right
to judicial review of all ‘final agency action for which there is
no other adequate remedy in a court.’” (emphasis added)
(quoting 5 U.S.C. § 704)).

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152 (3d Cir. 2023) (noting that SOX’s “kick-out
provision . . . lets a party sue in district court if the
administrative process drags on too long”).
SOX is silent about the interplay between preliminary
reinstatement and the kick-out provision. When an employee
obtains a preliminary reinstatement order and then kicks his
complaint to a court, does the preliminary reinstatement order
immediately dissolve? Or does it remain in effect unless a
district court alters it? Although Congress did not answer these
questions in SOX, it made two things clear: (1) an employee
who makes a preliminary showing of retaliation for reporting
securities fraud must be immediately reinstated and must
remain employed pending a final agency decision, 49 U.S.C.
§ 42121(b)(2)(A), and (2) when the Secretary takes too long to
make a final decision, a complainant may bypass the Secretary
and seek relief in court, 18 U.S.C. § 1514A(b)(1)(B). Reading
these provisions together, I cannot conclude with certainty that
a preliminary reinstatement order dissolves when a
complainant seeks relief from a court. Therefore, in my view,
Exxon Mobil has not carried its burden of demonstrating
mootness. See West Virginia v. EPA, 597 U.S. 697, 719 (2022)
(emphasizing that the defendant must establish mootness).
Exxon Mobil argues that a plaintiff who files a
complaint in district court under SOX’s kick-out provision
“essentially reject[s] the Preliminary Order of reinstatement,”
Exxon Mobil Mot. Dismiss, at 6–7, but it offers no support for

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5
that argument.3 And no court has considered this issue with
regard to SOX or any parallel whistleblower protection
statute.4 Absent a compelling argument from Exxon Mobil or
guidance from the statute, the majority draws an analogy to a
preliminary injunction (“PI”) issued in district court. Because
a PI is extinguished when a district court action is dismissed,
the majority reasons that a SOX preliminary reinstatement
order must similarly be extinguished when the agency action is
dismissed. Maj. Op., Part II. I am not persuaded.
When a complainant kicks his case to a district court,
the agency dismisses the administrative action. But that
dismissal casts no doubt on the Secretary’s preliminary
determination that the complaint has merit. In fact, a dismissal
in this scenario is unrelated to the complaint’s merits. It simply
recognizes the complainant’s statutory prerogative to obtain a
final decision from a court because the agency took too long.
And given how Congress prioritized reinstatement of putative
securities-fraud whistleblowers while they pursue final
3 Exxon Mobil purports to rely on Stone v. Instrumentation
Lab’y Co., 591 F.3d 239, 246 (4th Cir. 2009), but its reliance
is misplaced. There, the Fourth Circuit merely reiterated
SOX’s plain language: that judicial review under the kick-out
provision is de novo. 18 U.S.C. § 1514A(b)(1)(B). And the
complainant in Stone did not prevail at any stage of the agency
proceeding, so he did not obtain a preliminary reinstatement
order before kicking his complaint to a district court. 591 F.3d
at 242.
4 Like SOX, the Federal Railroad Safety Act, 49 U.S.C.
§ 20109(d)(3), and the Surface Transportation Assistance Act,
49 U.S.C. § 31105(c), incorporate AIR21’s procedures for
preliminary restatement and contain kick-out provisions.

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6
decisions on their complaints, I cannot conclude that a kick-out
dismissal extinguishes a preliminary reinstatement order.
Therefore, I cannot say this appeal is moot.
II
Having rejected the mootness argument, I would
address the original question raised in this appeal: whether the
District Court has jurisdiction to enforce a SOX preliminary
reinstatement order. In my view, it does not.
“Federal courts are courts of limited jurisdiction. [We]
possess only that power authorized by Constitution and
statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). The party asserting jurisdiction must
overcome the presumption that his cause lies outside of our
limited jurisdiction. Id. Here, Plaintiffs have not done so.
Plaintiffs rely on AIR21 to assert district-court
jurisdiction over preliminary reinstatement orders. AIR21
creates a private cause of action to enforce “an order . . . issued
under paragraph [(b)](3),” and it confers jurisdiction in “[t]he
appropriate United States district court . . . to enforce such
order.” 49 U.S.C. § 42121(b)(6)(A). Paragraph (b)(3)—
captioned “Final order”—addresses (among other things) the
remedies the Secretary of Labor must order if a complainant
prevails after a hearing. Id. § 42121(b)(3)(B). At the final-
order stage, if the Secretary determines that a company
retaliated against a complainant for protected activity, she
orders reinstatement and other relief. Id.
Plaintiffs contend that the jurisdictional provision
encompasses a preliminary order issued under paragraph
(b)(2), because paragraph (b)(2) incorporates paragraph

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(b)(3)’s remedies. See id. § 42121(b)(2)(A) (“[T]he Secretary
shall [issue] a preliminary order providing the relief prescribed
by paragraph [(b)](3)(B).”). But a preliminary order under
paragraph (b)(2) is not the equivalent of a final order under
paragraph (b)(3) simply because both may include
reinstatement. The two types of reinstatement orders remain
distinct in several ways. For one, each has a different standard.
The Secretary may issue a preliminary reinstatement order
based on “reasonable cause to believe that a violation . . . has
occurred,” id., but she may issue a final reinstatement order
only if she “determines that a violation . . . has occurred,” id.
§ 42121(b)(3)(B). The orders are also issued at different stages
of the agency proceeding. While the Secretary only
investigates before issuing a preliminary order, id.
§ 42121(b)(2)(A), she must do more (conduct a hearing) before
issuing a final order, id. § 42121(b)(3)(B). Finally, even if a
preliminary order becomes final because no party objects to it,
that order remains protected from judicial review. Id.
§ 42121(b)(2)(A). Given these differences, it is logical that
Congress authorized district courts to enforce paragraph (b)(3)
orders but not paragraph (b)(2) orders.
The only Court of Appeals to address a district court’s
jurisdiction to enforce a SOX preliminary order did not reach
a majority. In Bechtel v. Competitive Techs., Inc., one judge
concluded that district courts lack jurisdiction to enforce
preliminary reinstatement orders, 448 F.3d 469, 473 (2d Cir.
2006) (Jacobs, J.), and a second judge concurred in the court’s
judgment but declined to answer the jurisdictional question, id.
at 476 (Level, J., concurring). The third judge would have held
that district courts have jurisdiction to enforce preliminary
reinstatement orders. Id. at 484–88 (Straub, J., dissenting).
The dissenting judge addressed SOX’s “urgent statutory

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8
purpose” to address corporate fraud that threatened investors’
faith in financial markets and the American economy. Id. at
484. He recounted that Congress’s tools to combat this
problem could only work if Congress also protected securities-
fraud whistleblowers from retaliation. Id. SOX’s
whistleblower protection provisions, he reasoned, “make[]
clear that immediate reinstatement is paramount, which cuts
against any interpretation that would allow an employer to
ignore a reinstatement order with impunity.” Id.
I agree that judicial enforcement of preliminary
reinstatement orders would further SOX’s purpose.
Nonetheless, I discern no conferral of jurisdiction from
Congress. Therefore—notwithstanding that employers may
flout preliminary reinstatement orders, as Exxon Mobil did
here—I would affirm the District Court’s order dismissing
Plaintiffs’ complaint for lack of subject matter jurisdiction.
For these reasons, I respectfully dissent.

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