Acha v. Department of Agriculture
841 F.3d 878
| 10th Cir. | 2016Background
- John A. Acha was a probationary Forest Service Purchasing Agent responsible for ensuring compliance with the Federal Acquisition Regulation (FAR).
- In January 2012 Acha reported to his supervisor that a coworker had made an unauthorized $500 apartment deposit in violation of the FAR; his supervisor told him to delete that portion of the report.
- In April 2012 Acha emailed the Department of Agriculture Office of Inspector General (OIG) recounting the January incident and alleging he was punished for complying with his supervisor’s instruction; OIG took no action.
- Acha was terminated during his probationary period and filed an OSC complaint alleging he was fired as a whistleblower; OSC declined to seek MSPB corrective action because decisionmakers lacked knowledge of the April OIG email.
- Acha appealed to the MSPB and added an argument that he was fired for the January disclosure to his supervisor; the Department argued Acha failed to exhaust OSC remedies for that January disclosure and thus MSPB lacked jurisdiction.
- The MSPB found Acha had exhausted OSC remedies and rejected protection for the January disclosure on the merits because Acha could not prove a retaliatory motive; the court vacated the MSPB’s finding on the January claim for lack of jurisdiction and remanded for dismissal of that issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Acha exhausted OSC remedies for his January (supervisor) disclosure | Acha: inclusion of the April OIG email (which described the January disclosure) in his OSC complaint sufficed to give OSC a basis to investigate the January disclosure | USDA: Acha did not present the January disclosure to OSC as a claim seeking corrective action, so exhaustion failed and MSPB lacks jurisdiction | Court held Acha did not exhaust OSC remedies for the January disclosure; MSPB lacked jurisdiction and its related merits ruling vacated and remanded for dismissal |
| Whether MSPB properly required proof of a retaliatory motive for disclosures made in normal course of duties under WPEA | Acha: MSPB erred by imposing burden of proving retaliatory motive before finding a disclosure protected; burden should be on agency after a protected disclosure is found | MSPB/USDA: corrective relief for disclosures made in normal course is contingent on showing action was "in reprisal for" the disclosure (retaliatory motive) | Court did not decide the merits of this allocation of burdens because it resolved the case on jurisdiction (failure to exhaust) |
| Whether OSC knowledge of the January facts via the April OIG email suffices for exhaustion | Acha: factual mention in OIG email attached to OSC complaint made OSC aware and provided sufficient basis to investigate January disclosure | USDA: different disclosure (different person/time) requires a distinct OSC claim; mere background mention is insufficient | Court agreed with USDA and McCarthy: facts referenced as background in another disclosure do not satisfy §1214(a)(3) exhaustion requirement |
| Whether futility or WPEA retroactivity excuses exhaustion | Acha: exhaustion was futile because at filing time disclosures made in normal duties were not protected; WPEA and MSPB Day decision made them retroactively protected | USDA: statutory exhaustion requirement is jurisdictional and Congress mandated OSC exhaustion; futility exception cannot displace it | Court held statutory exhaustion cannot be excused by futility or retroactivity; Congress intended §1214(a)(3) to be jurisdictional |
Key Cases Cited
- Ellison v. Merit Sys. Protection Bd., 7 F.3d 1031 (Fed. Cir.) (exhaustion requirement is jurisdictional)
- Serrao v. Merit Sys. Protection Bd., 95 F.3d 1569 (Fed. Cir. 1996) (OSC must have sufficient basis to pursue investigation to satisfy exhaustion)
- McCarthy v. Merit Sys. Protection Bd., 809 F.3d 1365 (Fed. Cir. 2016) (background mention of prior disclosures in an OIG report does not satisfy OSC exhaustion for distinct disclosures)
- Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) (courts must assure their own and lower courts' jurisdiction sua sponte)
- Booth v. Churner, 532 U.S. 731 (2001) (courts should not read futility exceptions into statutory exhaustion where Congress mandated exhaustion)
- Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) (statutory language and context govern whether a requirement is jurisdictional)