Whistleblower Claims Can be Exhausting, But Need Not Always be Exhausted

The U.S. Court of Appeals for the First Circuit recently reinstated the whistleblower claims of an Immigration and Customs Enforcement (ICE), Department of Homeland Security (DHS) supervisor who delivered an email and a message to another whistleblower on behalf of their manager. In doing so, the First Circuit clarified the “exhaustion” requirements for federal whistleblowers and emphasized that whistleblower complaints do not have to precisely state the legal theories that support their claim.

In 2014, Special Agent (SA) Brendan Hickey had a whistleblower complaint against ICE, stemming from when he was transferred to a different office after refusing an illegal order to enter classified information about an undercover informant on a Treasury computer system that was not authorized to accept classified information. Hickey claimed that his supervisor, Assistant Special Agent in Charge (ASAC) Linda Hunt, retaliated against him for refusing to follow that illegal order.  At that time, Jason Mount worked as a Supervisory Special Agent for ICE in Boston, Massachusetts. Mount’s supervisor, ASAC Robert Kurtz, asked Mount to deliver an email thread to Special Agent (SA) Brendan Hickey.  Kurtz’s email criticized Hunt for her aggressive and harassing style of management, and Kurtz asked Mount to deliver the email to Hickey and tell him it could be useful to his case.  Mount did so, and Hickey eventually used the email during Hunt’s deposition in his whistleblower case.

After the deposition, ICE’s Office of Professional Responsibility (OPR) investigated how Hickey got the email, and Mount was interviewed under oath as part of the OPR investigation.  OPR later told 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.” However, while the OPR investigation was pending, Mount lost two opportunities for promotion. He also received a lower performance appraisal.

Mount filed a complaint with the Office of Special Counsel (OSC), the federal agency that enforces the Whistleblower Protection Act (WPA). Mount alleged that management had conspired to “retaliate against [him] for providing information to SA Hickey that [Hickey] used during his OSC whistleblower complaint/investigation  . . .”

OSC declined to take any action for Mount, so he filed an appeal to the Merit Systems Protection Board (MSPB).  Before the MSPB, Mount argued that even if his actions were not actuallyprotected by the WPA, the Agency obviously believedhe had inappropriately disclosed Kurtz’s email, and that “put [him] squarely in the category of an employee who is perceivedas providing 5 U.S.C. § 2302(b)(9)(B) assistance.”

ICE argued that: (a) Mount had not “exhausted” his claims with the OSC (that is, that he had not properly filed his claims); (b) Mount’s actions were too minor to be considered as participating in Hickey’s case; and (c) there were non-retaliatory reasons for the challenged personnel actions. In his reply brief, Mount contended, among other things, that he did not have to use the word “perceived” to exhaust his claim before the OSC.

The MSPB’s Administrative Judge (AJ) ruled in favor of the DHS. The AJ said Mount’s conduct had been too “miniscule” to constitute actual assistance. Rather, Mount was just following his superior’s order and not actually assisting Hickey’s whistleblower case. As for Mount’s perceived assistance claim, the AJ found that it was not exhausted, because Mount, who had been “represented by counsel,” had not explicitly claimed that he was a perceived whistleblower before OSC. Accordingly, the MSPB denied Mount’s request for corrective action. Mount petitioned to the First Circuit to review the MSPB’s decision.

The First Circuit held that a “perceived assistance” claim differs from an “actual assistance” claim in that, even if the employee did not actually engage in protected activity, he must prove that the agency officials perceived that he did. (The Supreme Court had already recognized that an employer’s mistaken belief about protected activity is a valid basis for a retaliation claim; see KCNF’s blog post about the 2016 decision in Heffernan v. City of Paterson.)  As with any other whistleblower retaliation, the employee still has to prove that the agency’s perception (if not his own conduct) was a contributing factor in the personnel action.

The Agency argued, however, that the AJ correctly dismissed Mount’s “perceived assistance” claim because Mount did not use these words in his OSC complaint. The First Circuit disagreed. It said that the text of the WPA does not require a whistleblower to state the “precise ground” for the claim. The statute simply states that the employee “shall seek corrective action from the Special Counsel before seeking corrective action from the Board.” This holding is consistent with other decisions of the Supreme Court, including Johnson v. City of Shelby, Mississippi, which held that employees did not have to raise legal theories in their complaints, but merely had to set out the facts necessary to support their claim. (See KCNF’s blog post on this issue)

This issue is important for whistleblowers because, while in 2012 Congress enacted the Whistleblower Protection Enhancement Act (WPEA) to stop “the Federal Circuit and the MSPB [from] undermin[ing] the WPA’s intended meaning by imposing limitations on the kinds of disclosures by whistleblowers that are protected under the WPA,” the MSPB had not gotten the message.  The First Circuit heard this message and said, “we will not construct the exhaustion requirement in a way that drastically conditions the rights that the WPA seeks to protect and makes it harder for whistleblowers to obtain relief.” In reaching its decision, the court explained that ICE’s position was “unrealistic, because often the full scope of reprisals is not exposed until the complaint is investigated or otherwise pursued.”

This ruling by the First Circuit provides whistleblowers with the ability to preserve their claims as long as they “sought relief” with the OSC. This standard means that whistleblower complaints to OSC should survive if they identify the adverse actions for which they seek relief and provide some explanation of how their protected activity could have contributed to that adverse action. After giving this notice of the claim, other protected activities or theories should be permitted, just as any other additional evidence of causation would be permitted at hearing.

** The case is Mount v. Department of Homeland Security, 937 F.3d 37 (1stCir. 2019).