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Dewey Publications Inc.
News and Case Alert
Issue #11-8
TABLE OF CONTENTS


FIRST CIRCUIT REJECTS MSPB'S HYPERTECHNICAL APPLICATION OF IRA EXHAUSTION REQUIREMENT


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FIRST CIRCUIT REJECTS MSPB'S HYPERTECHNICAL APPLICATION OF IRA EXHAUSTION REQUIREMENT

Not for the first time, a circuit court of appeals rebuked the Board for imposing pleading requirements that deny whistleblowers fair merits resolutions of IRA complaints. Jason Mount's supervisor provided him an email to give to coworker that the supervisor thought would aid that coworker's whistleblower case. The circumstances of the procurement and transmittal of the email were investigated, Mount was found innocent of any wrongdoing, but Mount believed he'd been retaliated against through nonpromotion and a lowered performance appraisal. First taking those concerns to OSC, Mount then appealed to the Board on the theories that he was the victim of reprisal for aiding a whistleblower and for being perceived as having aided a whistleblower. The Board's AJ declined to consider the "perception" assertion because it was not first raised with OSC, and the AJ ruled that the assistance (carrying a copy of an email to the appellant's colleague) was too minimal to constitute protected assistance. On the "perception" claim, the court sent the case back to the Board, ruling that its construction of the statutory exhaustion requirement was hypertechnical, incorrect: the statute does not dictate a stringent exhaustion requirement-it just states that the employee will seek corrective action from OSC and does not require presentation to OSC of a "perfectly packaged case ready for litigation." The legislative history of the statute did not show congress intended to impose a legally technical exhaustion requirement. A requirement of technically exact pleading to OSC imposes too great a burden on employees without counsel and the burden is unrealistic because the full scope of reprisals is not exposed until the complaint is investigated or otherwise pursued. The allegations of Mount's OSC complaint, although not specifying a "perception" claim, supported the core element that management appeared to believe he engaged in whistleblowing activity. Rejecting "MSPB's hypertechnical application of the exhaustion requirement," the court remanded the case for Board reconsideration. A little more than a year ago, another circuit rejected strict application by MSPB of OSC exhaustion requirements as "bureaucratic rigidity to a dysfunctional level," Delgado v. MSPB, 880 F.3d 913, 915-22 (7th Cir. 2018).

Mount v. DHS, ___F.3d___ (1st Cir. 8/29/2019) (No. 18-1762).



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