Acha v. Dep't of Agric.

• Decision Date: 14 November 2016
• Docket Number: No. 15–9581,15–9581
• Citation: 841 F.3d 878
• Parties: John A. Acha, Petitioner, v. Department of Agriculture, Respondent, Office of Special Counsel, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

841 F.3d 878

John A. Acha, Petitioner,

v.Department of Agriculture, Respondent,Office of Special Counsel, Amicus Curiae.

No. 15–9581

United States Court of Appeals, Tenth Circuit.

FILED November 14, 2016

Ryan C. Gilman, Gilman Law, LLC, Glenwood Springs, Colorado, for Petitioner.

Emma E. Bond, Trial Attorney, U.S. Department of Justice, Washington, D.C. (Benjamin C. Mizer, Principal Deputy, Assistant Attorney General, Robert E. Kirschman, Jr., Director, Elizabeth M. Hosford, Assistant Director, U.S. Department of Justice, Washington, D.C., and Rayann Lund, of Counsel, Litigation Specialist, U.S. Department of Agriculture Forest Service, Albuquerque, New Mexico, with her on the brief), for Respondent.

Carolyn N. Lerner, Special Counsel, Louis Lopez, Associate Special Counsel, and Shayla Silver–Balbus, Attorney, U.S. Office of Special Counsel, Oakland, California, filed a brief for Amicus Curiae.

Before LUCERO, BALDOCK, and BACHARACH, Circuit Judges.

BALDOCK

, Circuit Judge.

Petitioner John A. Acha worked as a Purchasing Agent for the Forest Service, an agency of the Department of Agriculture, at the White River National Forest in Glenwood Springs, Colorado. Petitioner's job, which was subject to a one-year probationary period, primarily consisted of meeting the Forest Service's purchasing needs. Petitioner was also responsible for ensuring that all purchases complied with the Federal Acquisition Regulation (FAR), a set of “policies and procedures [that govern] acquisition by all executive agencies.” 48 C.F.R. § 1.101

.

In January 2012, a few months into his job, Petitioner submitted a report to his direct supervisor that documented an apartment rental he had helped secure on behalf of the Forest Service. In this report, Petitioner noted that another Forest Service employee “had put $500.00 of his own money down as the deposit on the [apartment] unit.” Petitioner believed this specific employee did not have the authority to obligate the government in such a manner and therefore violated the FAR when he made this unauthorized deposit. Petitioner's supervisor, however, did not act on Petitioner's concerns; in fact, his supervisor instructed him to delete the report's reference to the deposit. Petitioner followed the instructions and deleted the reference.

Several months later in April, Petitioner sent an email to the Department of Agriculture's Office of Inspector General in which he again mentioned that the Forest Service employee had violated the FAR when he made the unauthorized deposit on the apartment. Petitioner also indicated in his email that he had previously told his supervisor about this violation; that, in response, his supervisor had instructed him to cover up the violation; and that he was punished afterward and treated poorly for following this instruction. Like Petitioner's supervisor, however, the record does not indicate that the Inspector General ever took any actions on the issues Petitioner disclosed in his email.

Petitioner was eventually terminated during his probationary period from his position with the Forest Service. He filed a complaint with the Office of Special Counsel (OSC), the independent agency responsible for protecting federal employees from prohibited personnel practices, alleging that he was actually terminated because he had disclosed to the Inspector General in April that (1) his fellow employee's unauthorized deposit violated the FAR, (2) his supervisor had directed him to cover this up, and (3) he had been punished for helping in the cover-up. Petitioner, in other words, alleged that he had been terminated because he was a whistleblower. See 5 U.S.C. § 2302(b)(8)

. The OSC eventually closed its inquiry into Petitioner's complaint and refused to seek any corrective action on his behalf from the Merit Systems Protection Board (MSPB), the independent agency with the power to actually order corrective action for employees affected by prohibited personnel practices. The OSC determined that no official involved in Petitioner's termination knew of his email to the Inspector General and, as such, his email could not have contributed to his termination. See 5 U.S.C § 1221(e)(1).¹

As a result, Petitioner appealed the OSC's determination and sought corrective action from the MSPB himself. See 5 U.S.C. § 1221(a)

. As he did before the OSC, Petitioner argued that he was fired for making protected whistleblowing disclosures to the Inspector General in April. But this time around he also argued that he was fired for disclosing the FAR violation to his direct supervisor in January. The Department of Agriculture objected to Petitioner's new allegation that he was terminated for making a whistleblowing disclosure in January. It argued that because Petitioner had not raised this argument before the OSC, he had not exhausted all of his administrative remedies before the OSC regarding his January disclosure. See 5 U.S.C. § 1214(a)(3). And because this failure to exhaust requirement is jurisdictional in nature, e.g. , Ellison v. Merit Sys. Protection Bd. , 7 F.3d 1031, 1037 (Fed. Cir. 1993),² the Department of Agriculture claimed that the MSPB lacked jurisdiction to consider whether Petitioner was terminated for making this January disclosure.

Petitioner responded that he had made his January disclosure to his supervisor during his “normal course of duties,” which meant that, at the time he filed his complaint to the OSC, he necessarily could not have received any corrective action from the MSPB for that disclosure. See, e.g. , Huffman v. Office of Pers. Mgmt. , 263 F.3d 1341, 1352 (Fed. Cir. 2001)

(holding that “an employee who makes disclosures as part of his normal duties” is not a protected whistleblower), superseded by statute , Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112–199, 126 Stat. 1465. Thus, Petitioner contended that he had no reason to argue before the OSC that he was terminated for making his January disclosure. But after the OSC had closed its inquiry into his case, Congress passed the Whistleblower Protection Enhancement Act of 2012 (WPEA), which changed the law and allowed employees to obtain corrective action for disclosures they made in their normal course of duties in certain circumstances. See 5 U.S.C § 2302(f)(2). Further, the MSPB held in a separate case that the new protections given to disclosures made during the normal course of an employee's duties applied retroactively to all pending cases before the MSPB. Day v. Dep't of Homeland Sec. , 119 M.S.P.R. 589, 602 (2013). In light of the WPEA and the MSPB's decision in Day , Petitioner argued that the MSPB should excuse him from the exhaustion requirement for his January disclosure; indeed, he contended that he should not be punished for refusing to make then-frivolous arguments in his complaint to the OSC.

But Petitioner further argued that he did not even need to be excused from the exhaustion requirement because he had, in fact, exhausted his remedies for the January disclosure. Specifically, he claimed that although he did not actually allege in his complaint to the OSC that he was terminated for making his January disclosure, he did include information about the January disclosure in his complaint. For support, he noted that he had attached his April email to the Inspector General to his complaint to the OSC and that in this email he had specifically discussed that he disclosed the FAR violation to his supervisor in January and was punished for doing so. He reasoned that this was enough for him to exhaust his administrative remedies, for the failure to exhaust requirement demands only that an employee “give the Office of Special Counsel sufficient basis to pursue an investigation which might have led to corrective action.” Serrao v. Merit Sys. Protection Bd. , 95 F.3d 1569, 1577 (Fed. Cir. 1996)

(emphasis added) (internal quotation marks omitted).

The MSPB agreed with Petitioner and concluded that his failure to argue before the OSC that he was terminated for making the January disclosure to his supervisor was not fatal to its jurisdiction. Although it did not mention Day or the change in law brought about by the WPEA, it agreed with Petitioner that he had provided enough information about his January disclosure to the OSC so that the OSC could sufficiently pursue an investigation of that claim. Thus, the MSPB determined that “although the allegations could be clearer,” Petitioner exhausted his remedies before the OSC regarding the January disclosure.

Moving on to the merits, however, the MSPB determined that Petitioner was not entitled to corrective action for either his January disclosure to his supervisor or his April disclosure to the Inspector General. Regarding his April disclosure, the MSPB agreed with the OSC that no officials involved in Petitioner's termination had knowledge of his email to the Inspector General, so it could not have contributed to his termination. See 5 U.S.C § 1221(e)(1)

. And regarding the January disclosure, the MSPB recognized that although disclosures made during the normal course of duties now could warrant corrective action under the WPEA, such corrective action was not guaranteed. Instead, the MSPB concluded that corrective action for disclosures made during the normal course of duties was contingent on whether an employee could prove that the officials responsible for the personnel action at issue acted with an improper “retaliatory motive”—that is, a heightened burden that is not required when a whistleblower makes a disclosure outside the normal course of his duties. Compare 5 U.S.C § 2302(f)(2)

(forbidding personnel actions relating to a disclosure made during the normal course of duties only if the action is “in reprisal for” the disclosure), with 5 U.S.C § 2302(b)(8) (forbidding personnel actions relating to all other disclosures when the action is merely “because of” the disclosure). In the MSPB's eyes, if the employee could not prove such a motive, then the employee's...