Acha v. Dept. of Agriculture

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Petitioner John Acha worked as a Purchasing Agent for the Forest Service at the White River National Forest in Glenwood Springs, Colorado. In January 2012, a few months into his job, Petitioner submitted a report to his direct supervisor that documented an apartment rental he had helped secure on behalf of the Forest Service. In this report, Petitioner believed another employee violated the Federal Acquisition Regulation (FAR) when he made an unauthorized deposit. Petitioner’s supervisor, however, did not act on Petitioner’s concerns; in fact, his supervisor instructed him to delete the report’s reference to the deposit. Petitioner followed the instructions and deleted the reference. Several months later in April, Petitioner sent an email to the Department of Agriculture’s Office of Inspector General in which he again mentioned that the Forest Service employee had violated regulations. Petitioner also indicated in his email that he had previously told his supervisor about this violation; that, in response, his supervisor had instructed him to cover up the violation; and that he was punished afterward and treated poorly for following this instruction. Petitioner was eventually terminated during his probationary period from his position with the Forest Service. He filed a complaint with the Office of Special Counsel (OSC), alleging that he was terminated because he was a whistleblower. The OSC eventually closed its inquiry into Petitioner’s complaint and refused to seek any corrective action on his behalf from the Merit Systems Protection Board (MSPB). The OSC determined that no official involved in Petitioner’s termination knew of his email to the Inspector General and, as such, his email could not have contributed to his termination. Petitioner appealed the OSC’s determination and sought corrective action from the MSPB himself. This time, he also argued that he was fired for disclosing the FAR violation to his direct supervisor earlier in the year. The Department objected to Petitioner’s new allegation that he was terminated for making a whistleblowing disclosure: arguing that because Petitioner had not raised this argument before the OSC, he had not exhausted all of his administrative remedies, and therefore the MSPB lacked jurisdiction to consider whether Petitioner was terminated for the alleged whistleblowing. Before the Tenth Circuit, Petitioner did not challenge the MSPB’s ruling regarding his disclosure to the Inspector General; he appealed only the MSPB’s ruling regarding his disclosure to his supervisor. Petitioner argued that the MSPB erred by making him prove a retaliatory motive as a prerequisite before it would consider his disclosure to his supervisor to be protected. The Tenth Circuit concluded the MSPB lacked jurisdiction to consider whether Petitioner was terminated for disclosing the FAR violation to his supervisor. The Court vacated the MSPB’s decision insofar as it concluded that Petitioner’s disclosure was not a protected disclosure and remanded this case back to the MSPB to dismiss that issue for lack of jurisdiction. The MSPB’s decision regarding disclosure to the Inspector General was affirmed. View "Acha v. Dept. of Agriculture" on Justia Law