Mark Javery v. Charles Bolden, Jr., 697 F. App'x 810

Javery (Lockheed employee) and Dejan (Camgian subcontractor employee) were terminated while working on a Lockheed contract with NASA and filed reprisal complaints under 10 U.S.C. § 2409.
They alleged they disclosed mischarging of preventative-maintenance funds (wrongful use of contract funds) to NASA, which they claimed was a protected disclosure.
NASA OIG found the disclosures were protected and were a contributing factor in the terminations; OIG treated the omission in the 2008 statute as a drafting error.
NASA Administrator reviewed OIG’s report, invited responses from the parties, and received Lockheed’s disagreement and the employees’ replies.
The Administrator concluded the 2008 version of § 2409 governed, which protects disclosures to NASA only for a "substantial and specific danger to public health or safety," and denied relief because the alleged mischarging did not fit that category.
The Fifth Circuit affirmed, holding the Administrator’s statutory interpretation and denial of relief were not arbitrary, capricious, or contrary to law; plaintiffs’ delay claim also failed for lack of prejudice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Which version of § 2409 applies	The 2013 amendments should govern or at least protect their disclosures	The 2008 version governs because contract predates 2013 amendments and was not modified before terminations	2008 version applies (contract awarded 2010; modification with 2013 terms occurred after terminations)
Whether alleged disclosures are protected under applicable § 2409	Disclosures of mischarging were protected whistleblower disclosures	2008 § 2409 does not cover mischarging disclosures to NASA; terminations were for performance	Not protected: 2008 § 2409, by its plain terms, protects NASA disclosures only for substantial and specific danger to public health or safety
Whether OIG reasonably treated the statutory omission as a drafting error	OIG: omission was a mistake and protections should extend to mischarging disclosures	Administrator: cannot rewrite Congress; statutory text is plain and enforceable	Administrator’s rejection of OIG’s ‘‘drafting error’’ view upheld; agency interpretation reasonable and consistent with text
Whether Administrator unreasonably delayed final determination	Plaintiffs: Administrator exceeded statutory 30-day deadline and prejudiced them	Administrator: delay occurred but APA relief for delay requires prejudice; proceedings included party responses	Delay did occur but plaintiffs failed to show prejudice; delay does not nullify final decision

Knapp v. U.S. Dep’t of Agric., 796 F.3d 445 (5th Cir. 2015) (standards for judicial review of agency determinations)
Mem’l Hermann Hosp. v. Sebelius, 728 F.3d 400 (5th Cir. 2013) (deference to agency statutory interpretations in administered statutes)
Tex. Clinical Labs, Inc. v. Sebelius, 612 F.3d 771 (5th Cir. 2010) (deference to agency interpretations on statutory questions)
Nat’l R.R. Passenger Corp. v. Bos. & Me. Corp., 503 U.S. 407 (1992) (deference to agency interpretations where consistent with plain language)
Lamie v. U.S. Tr., 540 U.S. 526 (2004) (courts enforce plain statutory text where disposition is not absurd)
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) (framework for deference to reasonable agency interpretations)
United States v. Popovich, 820 F.2d 134 (5th Cir. 1987) (court’s remedy for unreasonable agency delay is to compel action; does not vacate completed action)
King v. Nat’l Transp. Safety Bd., 766 F.2d 200 (5th Cir. 1985) (APA requires showing of prejudice to set aside agency action for untimeliness)