On September 23, 2025, the U.S. District Court for the Eastern District of Virginia issued a decision dismissing constitutional challenges to Department of Labor Administrative Law Judge (ALJ) adjudication of whistleblower claims under Section 806 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1514A (SOX). This District Court’s narrow reading of the Supreme Court’s recent decision in Jarkesy may prove critical to agency enforcement of federal whistleblower and other employment laws.
For context, on June 27, 2024, the Supreme Court issued its decision in S.E.C. v. Jarkesy, in which the Court threw out a $300,000 penalty awarded to the SEC because the decisionmaker was an agency Administrative Law Judge (ALJ), and not a federal judge and jury. The Jarkesy decision’s interpretation of the Seventh Amendment – guaranteeing a right to a jury trial for “Suits at common law” – and Article III of the Constitution sent shockwaves throughout labor and employment law. A dizzying array of challenges sprang up almost immediately in every conceivable forum as employers started raising Jarkesy arguments before ALJs, agency appellate bodies and in federal district and circuit court, claiming the ALJs in the DOL and NLRB could no longer decide whether employees were entitled to relief under federal labor laws.
The Jarkesy Court’s Seventh Amendment analysis first looked at whether the cause of action brought and remedies sought resemble those historically available in courts of common law....
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