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Mount v. U.S. Department of Homeland Security

United States Court of Appeals, First Circuit

August 29, 2019

JASON MOUNT, Petitioner,


          Morris E. Fischer, with whom Morris E. Fischer, LLC was on brief, for petitioner.

          Domenique Kirchner, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, with whom Allison Kidd-Miller, Assistant Director, Joseph H. Hunt, Assistant Attorney General, and Robert E. Kirschman, Jr., Director, were on brief, for respondent.

          Before Torruella, Thompson, and Kayatta, Circuit Judges.


         In this federal whistleblower case, petitioner Jason Mount ("Mount") alleges that his supervisors retaliated against him because he delivered a document to a colleague which the colleague later used in support of his own whistleblower case against the agency. Mount petitions for review of a decision by the Merit Systems Protection Board ("MSPB")[1] dismissing his Individual Right of Action ("IRA") appeal under the Whistleblower Protection Act of 1989 ("WPA"), 5 U.S.C. § 1214(a)(3). Before the MSPB, Mount advanced two theories: first, that he suffered reprisal for "lawfully assisting" a coworker in that coworker's exercise of his rights under the WPA, and second, that even if he had not actually engaged in a protected activity, he was perceived by the agency and his supervisors to have done so and suffered reprisal as a result.

         The MSPB denied Mount's request for relief, finding that his actions had been too minimal to constitute actual assistance under the WPA and that he had failed to exhaust his perceived assistance claim. Before us, Mount argues that the MSPB: (1) abused its discretion by considering certain evidence when evaluating his actual assistance claim; and (2) erred in finding that he failed to exhaust administrative remedies as to his perceived assistance claim. Because Mount has not shown that he raised his objections to the evidence below, we refrain from addressing them in the first instance. As to Mount's perceived assistance claim, however, we reject the MSBP's hyper-technical application of the exhaustion requirement. For the first time in this Circuit, we hold that the WPA only requires that a complainant include sufficient factual basis to enable the agency to investigate. Because Mount complied with this requirement, we remand as to Mount's perceived assistance claim for further proceedings consistent with this opinion.

         I. Background

         Mount served as a General Schedule Grade 14 ("GS-14") Supervisory Special Agent for the Department of Homeland Security's ("DHS") Immigration and Customs Enforcement ("ICE") in Boston, Massachusetts. In December 2014, Assistant Special Agent in Charge ("ASAC") Robert Kurtz ("Kurtz"), Mount's supervisor at the time, tasked Mount with delivering a printout of an email thread to Special Agent ("SA") Brendan Hickey ("Hickey"), who had filed a whistleblower case against ASAC Linda Hunt ("Hunt"). The email contained a discussion in which Kurtz criticized Hunt for her aggressive and harassing style of management. Kurtz asked Mount to tell Hickey that the email could be useful to his case. Mount delivered the email and relayed the message to Hickey.[2]Hickey eventually used the email during Hunt's deposition related to his whistleblower case.

         Subsequently, the agency's Office of Professional Responsibility ("OPR") investigated how Hickey had obtained the email. On August 25, 2015, SA Thomas Pugliese interviewed Mount under oath as part of the OPR investigation (the "OPR interview"). On November 29, 2016, the OPR informed Mount that its investigation revealed "no basis to the allegation that [Mount] improperly disseminated an email and then exhibited a lack of candor about it; therefore, no case was opened in which [he was] the subject."

         During the process of the OPR investigation, however, Mount was not selected for promotion twice, for job listings posted on August 5, 2015, and March 11, 2016. Moreover, in October 2015, Mount was issued a 2015 fiscal year performance appraisal that was lower than the scores he had annually received since at least 2011. While Kurtz initially informed Mount that he was issuing Mount a rating of 4.8 out of 5 (meaning "achieved excellence") for fiscal year 2015, the next day Kurtz told Mount that the reviewing official, Deputy Special Agent in Charge ("DSAC") Michael Shea, had lowered his rating to a 4.2 out of 5 (meaning "exceeded expectations").

         On December 30, 2015, Mount filed a complaint with the Office of Special Counsel ("OSC"), the federal office charged with investigating allegations that an agency has violated the WPA by engaging in a prohibited personnel practice. See 5 U.S.C. §§ 1212, 1214(a)(1). In his complaint, Mount provided a detailed account of the facts surrounding the personnel actions he suffered, alleging that management had conspired to "retaliate against [him] for providing information to SA Hickey that was used during his OSC whistleblower complaint/investigation against HSI Boston management officials." On August 12, 2016, Mount amended his complaint to include allegations concerning his non-selection for the March 11, 2016 job posting, an ASAC position in the DHS's Boston unit.

         Because the OSC took no action, Mount filed his initial IRA appeal to the MSPB on April 7, 2017.[3] Due to scheduling issues, the MSPB dismissed the IRA appeal without prejudice on August 18, 2017, and the appeal was automatically refiled on October 27, 2017. On January 8, 2018, Mount submitted a memorandum to the MSPB explaining that regardless of whether his actions constituted actual assistance pursuant to the WPA, "the Agency's subsequent actions in retaliating against [him] for delivering the email to Hickey[] put [him] squarely in the category of an employee who is perceived as providing 5 U.S.C. § 2302(b)(9)(B) assistance." In that memorandum, Mount also informed the MSPB that he was waiving his right to a hearing, noting that the case "ha[d] a very well-developed record" and explaining that "[d]ue to everything that he and his family ha[d] already been through, [he found the] hearing burdensome and unnecessary." On January 22, 2018, Mount filed his brief, claiming that the agency's management had retaliated against him because he actually assisted Hickey or, at the very least, because DHS officials perceived him as having provided such assistance.

         DHS responded on February 1, 2018, arguing that: (a) Mount had not established proper exhaustion of his claims with the OSC; (b) Mount's action were too minor to be considered as actually assisting Hickey; and (c) there were non-retaliatory reasons for the challenged personnel actions. In his reply brief, Mount contended among other points that he did not have to name the perceived assistance claim with its specific legal label in order for it to be exhausted.

         On May 8, 2018 the MSPB issued its decision in favor of the DHS. First, the MSPB found that Mount's conduct had been too miniscule to constitute actual assistance. It explained that Mount's intention had been more akin to following a superior's order rather than to actually assisting with SA Hickey's whistleblower case. As for Mount's perceived assistance claim, the MSPB found that it was not exhausted because there was no evidence that Mount, who had been "represented by counsel throughout the process, expressly sought to raise a perceived whistleblower claim before OSC." Accordingly, the MSPB denied Mount's request for corrective action. On August 9, 2018, Mount petitioned this Court to review the MSPB's decision, which became final on June 12, 2018.

         II. Discussion

         The Civil Service Reform Act of 1978 ("CSRA"), Pub. L. No. 95-454, 92 Stat. 1111 (codified as amended in scattered sections of 5 U.S.C.) created the MSPB and "established a comprehensive system for reviewing personnel action taken against federal employees." United States v. Fausto, 484 U.S. 439, 455 (1988). Several years later, the WPA amended the CSRA to, among other purposes, "strengthen the protections available to Federal employees against prohibited personnel practices." Pub. L. No. 101-12, 103 Stat. 16, 16 (1989).

         As relevant here, the WPA precludes an agency from engaging in "prohibited personnel practices" against a federal employee for that employee's involvement in certain whistleblowing activities. Specifically, under Section 2302(b)(8), covered agencies are barred from retaliating against a federal employee for disclosing what the employee reasonably believes evidences "(i) any violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety." 5 U.S.C. § 2302(b)(8)(A).

         In addition, Section 2302(b)(9)(B) prohibits a covered employer from taking or failing to take a personnel action against an employee for "testifying for or otherwise lawfully assisting any individual in the exercise" of certain appeals, complaints, or grievances. Id. § 2302(b)(9)(B)(emphasis added); see also, e.g., Viens-Koretkov. Dep't of Veterans Affairs, 53 M.S.P.R. 160, 163 (M.S.P.B. 1992) (noting that "the appellant's act of testifying for another ...

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