First Circuit: No Need to Correctly Label Legal Theory for OSC Exhaustion

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An ICE Supervisory Special Agent delivered a document to a colleague at the direction of his supervisor, the Assistant Special Agent in Charge. The colleague (a Special Agent) later used the document in support of his own whistleblower case against the Agency. After the Agency learned of the Supervisory Special Agent’s involvement in his colleague’s appeal, he was not selected for promotion, and received a lower-than-normal performance appraisal. He then filed a complaint with the Office of Special Counsel, alleging that the agency retaliated against him for providing information to his colleague that was later used in his colleague’s appeal.

OSC took no action, and the employee’s subsequent Individual Right of Action (IRA) appeal was dismissed by the Merit Systems Protection Board because the MSPB found that the employee’s assistance was “too miniscule to constitute actual assistance” and that the employee failed to exhaust his claim before OSC because there was no evidence that the employee “expressly sought to raise a perceived whistleblower claim before OSC.” The employee petitioned the First Circuit Court of Appeals for review. The First Circuit, like other federal courts of appeal, just recently acquired jurisdiction to review MSPB decisions that only involve whistleblower claims. Previously, only the Federal Circuit Court of Appeals had jurisdiction to hear such appeals. On August 29, 2019, the First Circuit Court of Appeals granted the petition for review and remanded the case back to the MSPB.

First, the appeals court addressed the employee’s claim that he provided assistance to his colleague sufficient to trigger the protections in 5 U.S.C. § 2302(b)(9)(B). That statute forbids retaliation against employees who “lawfully [assist] any individual in the exercise” of an appeal, complaint, or grievance. As noted above, the MSPB found that the employee did not engage in a “protected activity” under the statute because his conduct (delivering a document to a colleague at the instruction of his supervisor) was too minimal to constitute “lawfully assisting” his colleague. To reach that finding, the MSPB relied on the employee’s own assertions in an Office of Professional Responsibility (“OPR”) investigation, during which he claimed that he had “no dog in the fight” of his colleague’s appeal and that he was merely following his supervisor’s instruction to deliver the document to his colleague.

On appeal, the employee argued that the OPR investigation was itself retaliatory, and should not have been considered by the MSPB. But because the employee failed to raise that issue at MSPB, the First Circuit did not consider his challenge to evidence from the OPR investigation. Consequently, the First Circuit affirmed the MSPB’s finding that the employee did not actually assist his colleague.

Next, the appeals court addressed the employee’s “perceived assistance” claim, which argued that he was at least perceived by the agency and his supervisors as having engaged in protected activity, even if he did not actually “assist” his colleague within the meaning of the statute. The MSPB disposed of this claim by finding that the employee never raised a “perceived assistance” claim with OSC, and therefore failed to exhaust his administrative remedies before filing an appeal. Exhaustion is a requirement for the MSPB to have jurisdiction to hear an IRA appeal. Before the appeals court, the employee argued that even if he never expressly stated a perceived assistance claim, he exhausted the claim because the “OSC documents reveal facts that were articulate[d] with reasonable clarity and precision” that would have put OSC on notice of said claim.

In response, the government cited Federal Circuit precedent formulating a “precise ground” standard, which declines to expand claims at issue to what OSC could or might infer from an employee’s complaint. After considering both positions, the First Circuit ruled for the employee. In doing so, the appeals court noted that the text of the Whistleblower Protection Act (WPA) did not dictate “such a stringent exhaustion requirement,” and that the statute simply states that the employee “shall seek corrective action from the Special Counsel before seeking corrective action from the Board.”

In support of its ruling, the First Circuit cited a similar holding from the Seventh Circuit in Delgado v. Merit Sys. Prot. Bd, 880 F.3d 913, 923-924 (7th Cir. 2018), as well as Congress’ “concern with the Federal Circuit’s restrictive rulings disfavoring alleged whistleblowers.” Therefore, the First Circuit stated its belief that the correct approach is a more lenient one, in which the courts “interpret the WPA’s exhaustion requirement more consistently with other statutory exhaustion schemes, such as those of the Federal Tort Claims Act and Title VII of the Civil Rights Act of 1964.

Under that framework, the First Circuit found that the record before OSC reflected evidence that the employee’s supervisors had “at least a perception that [the employee] engaged in protected activity, in this case providing information to [his colleague] to help him in his whistleblower case.” Because those facts were alleged in the employee’s OSC complaint, the appeals court “[rejected] the MSPB’s hyper-technical application of the exhaustion requirement,” and found that the employee satisfied the exhaustion requirement for his “perceived assistance” claim even if he did not expressly identify the precise legal theory.

For the above stated reasons, the First Circuit Court of Appeals remanded the appeal to the MSPB for adjudication consistent with its opinion.

Read the full First Circuit opinion: Mount v. DHS.

This case law update was written by Conor D. Dirks, Associate Attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update