United States Court of Appeals For the First Circuit

No. 18-1762

JASON MOUNT,

Petitioner,

v.

U.S. DEPARTMENT OF HOMELAND SECURITY,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE UNITED STATES MERIT SYSTEMS PROTECTION BOARD

Before

Torruella, Thompson, and Kayatta, Circuit Judges.

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.

August 29, 2019 TORRUELLA, Circuit Judge. 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"),

(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

1 The MSPB "is an independent, quasi-judicial federal administrative agency." Bledsoe v. Merit Sys. Prot. Bd.,

(Fed. Cir. 2011) (quoting García v. Dep't of Homeland Sec.,

(Fed. Cir. 2006)(en banc)). Among other functions, the MSPB adjudicates appeals pertaining to federal employee complaints that an agency engaged in a prohibited personnel practice. García,

; see also

(a)("An employee . . . may submit an appeal to the [MSPB] from any action which is appealable to the [MSPB] under any law, rule, or regulation.").

-2- 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

-3- 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.

2 The exact content of what Mount told Hickey at the moment of providing him with the email is unclear. While Hickey stated in his deposition that it was "I thought this was pertinent to your case," Mount testified during a subsequent investigation that he said: "Hey, this is an email that Kurtz thinks will help you out."

-4- 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

, 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

3 An appellant may seek corrective action from the MSPB for a prohibited personnel pratice if "120 days after seeking corrective action from the Special Counsel, such employee . . . has not been

-5- 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

(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

notified by the Special Counsel that the Special Counsel shall seek corrective action on behalf of such employee."

(a)(3)(B).

-6- 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"),

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

-7- federal employees." United States v. Fausto,

(1988). Several years later, the WPA amended the CSRA to, among

other purposes, "strengthen the protections available to Federal

employees against prohibited personnel practices."

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."

(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.

§ 2302(b)(9)(B)(emphasis added); see also, e.g.,

Viens-Koretko v. Dep't of Veterans Affairs,

, 163

(M.S.P.B. 1992) (noting that "the appellant's act of testifying

-8- for another employee at an EEO hearing constitutes an activity

that is specifically protected under

(b)(9)(B)").

The First Circuit has only recently acquired

jurisdiction to review MSPB decisions that only involve

whistleblower claims. Previously, petitions for review of MSPB

rulings of this sort were considered exclusively by the United

States Court of Appeals for the Federal Circuit. See Avilés v.

Merit Sys. Prot. Bd.,

(5th Cir. 2015). However,

in 2012 Congress passed the Whistleblower Protection Enhancement

Act of 2012,

Stat. 1465 (2012), which

among other matters expanded judicial review from only the Federal

Circuit to "the Federal Circuit or any court of appeals of

competent jurisdiction." See

(b)(1)(B). Initially,

this provision was set to "sunset" in a few years, see All Circuit

Review Extension Act,

Stat. 1894 (2014),

but in 2018, the All Circuit Review Act,

Stat. 1510 (2018), permanently authorized the change.

We may only set aside the MSPB's decision here if it is

"(1) arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with [the] law; (2) obtained without procedures

required by law, rule, or regulation having been followed; or

(3) unsupported by substantial evidence."

(c); see

also Rocha v. Merit Sys. Prot. Bd.,

(Fed. Cir.

-9- 2012); Sher v. U.S. Dep't of Veterans Affairs,

(1st Cir. 2007) (so noting).

A. Mount's Actual Assistance Claim

To establish a prima facie case of retaliation under the

WPA in an IRA appeal, the appellant must show by a preponderance

of the evidence that "(1) he made a [protected] disclosure

described under

(b)(8) or engaged in a protected

activity under

(b)(9)(A)(i), (B), (C), or (D); and

(2) the disclosure or protected activity was a contributing factor

in the agency's decision to take or fail to take a personnel

action." Corthell v. Dep't of Homeland Sec.,

,

422 (2016) (emphasis added); see also

(e)(1). Once

the appellant satisfies the criteria for a prima facie case, the

burden shifts to the agency to demonstrate by "clear and convincing

evidence that it would have taken the same personnel action in the

absence of such [protected] disclosure" or activity.

(e)(2); see also Corthell, 123 M.S.P.R. at 422.

The MSPB found that Mount did not engage in a "protected

activity" under Section 2302(b)(9)(B) because his conduct in

providing the email to Hickey was too minimal to constitute

"lawfully assisting" Hickey in his whistleblower appeal. The MSPB

explained that Mount's "involvement in Hickey's appeal, which was

entirely the product of Kurtz's actions, [was] far too limited to

-10- be considered 'assisting' Hickey under Section 2302(b)(9)(B)."

Relying in part on Mount's own declarations under oath in his

August 25th OPR interview, the MSPB concluded that Mount was merely

following Kurtz's orders. It highlighted that in the OPR

interview, Mount claimed that he had "no dog in the fight"; that

"he did not want to get involved in this nonsense"; that "he was

not looking to get in the middle of someone else's [legal

problem]"; and that he had "made it clear to Hickey that the email

was from Kurtz." Additionally, the MSPB emphasized that when

asked whether he just delivered the document, Mount answered "yes."

The MSPB also considered Hickey's testimony and certain

undisputed facts. It highlighted that "Kurtz selected the email,

printed it out, and placed it in an envelope"; that it was Kurtz'

idea to give the email to Hickey; and that Mount did not really

have to go out of his way to deliver the email to Hickey, as Mount

would have "had to visit Kurtz's office anyway" and he saw Hickey

frequently in the building. Further, the MSPB acknowledged

Hickey's testimony that Mount had told him "I thought this was

pertinent to your case" when handing him the email. Nevertheless,

the MSPB noted that Hickey had "hedged his assertion" in the same

deposition and in a subsequent OPR interview, and identified

instances in which SA Hickey's testimony had been inconsistent or

vague. For example, the MSPB emphasized that at some point Hickey

-11- testified that he thought Mount "may have said the email 'came

from Kurtz.'"

On appeal, Mount claims that the agency's OPR

investigation was retaliatory, and that therefore the MSPB erred

by admitting his OPR interview testimony and relying on that

testimony to conclude that he was not an actual assistor.

Alternatively, Mount claims that the MSPB abused its discretion by

lending more credibility to his OPR interview testimony under oath

than to Hickey's deposition testimony.

While Mount alleges that he raised those objections to

the evidence below, he has not provided any references to them in

the record.4 To the contrary, the record demonstrates that on at

least two occasions in his opening brief to the MSPB, Mount cited

and relied upon his OPR interview testimony. By not challenging

the admissibility of the OPR interview testimony below, Mount

prevented the MSPB from addressing these arguments and making any

relevant factual determinations in the first instance. See Colin

K. by John K. v. Schmidt,

, 5–6 (1st Cir. 1983)

("[O]rderly procedure and good administration require that

objections to the proceedings of an administrative agency be made

while it has opportunity for correction in order to raise issues

4 And we did not come across them during our independent review.

-12- reviewable by the courts." (quoting United States v. Tucker Truck

Lines,

(1952))). That being so, and based on

general rules of administrative waiver, he cannot press that

challenge here (he makes no attempt to fit his case within any

exception to these rules). See Eagle Eye Fishing Corp. v. U.S.

Dep't of Commerce,

(1st Cir. 1994) ("[A] court

ought not to consider points which were not seasonably raised

before the agency." (quoting Mass. Dep't of Pub. Welfare v. Sec'y

of Agric.,

(1st Cir. 1993))). Consequently,

Mount's attack on the MSPB's ruling on his actual assistance claim

fails.5

B. Mount's Perceived Assistance Claim

In the alternative, Mount argued to the MSPB that even

if he did not actually engage in "lawfully assisting" Hickey, he

was at least perceived by the agency and his supervisors as having

engaged in such protected activity. A "perceived assistance"

claim differs from an "actual assistance" claim in that under the

former, the employee must prove that the agency officials perceived

the employee engaged in protected activity, rather than that the

employee actually engaged in protected activity. See King v.

5 With this determination, we are not endorsing or rejecting the standard laid out by the MSPB's decision for establishing a prima facie actual-assistance claim under Section 2302(b)(9)(B).

-13- Dep't of Army,

, 695-96 (2011). Moreover, the

employee must prove that the agency's perception (not the

employee's protected conduct) was a contributing factor in the

personnel action.

.

Thus, even if Mount did not actually engage in a

protected activity, he could still have a claim if agency officials

nevertheless perceived him as having engaged in protected

activity. See, e.g., Juffer v. U.S. Info. Agency,

,

86 (1998) (observing that plaintiff's disclosure was insufficient

to constitute "a true protected disclosure under the WPA[,]" but

"[o]ne who is perceived as a whistleblower is still entitled to

the protections of the WPA, even if she has not made protected

disclosures"); Special Counsel v. Dep't of Navy,

,

278 (1990)(examining the WPA's text and legislative history, and

finding that "[a]n employee who does not engage in protected

activity may nonetheless be covered by the WPA where a retaliatory

personnel action is taken against him based on the belief that he

had engaged in protected activity").

To date, the MSPB has only adopted a perceived activity

analysis in § 2302(b)(9)(C) and § 2302(b)(8) cases, whereas Mount

brings his claim under § 2302(b)(9)(B). See, e.g., Corthell, 123

M.S.P.R. at 422 (finding that the MSPB is authorized to consider

a perceived activity claim under § 2302(b)(9)(C)); King, 116

-14- M.S.P.R at 695 (considering a perceived activity claim under

§ 2302(b)(8) and citing a number of perceived activity cases that

"arose from widely different factual circumstances" but

nevertheless "share a common element, i.e., that agency officials

appeared to believe that the appellants engaged or intended to

engage in whistleblowing activity"). In this case, the MSPB noted

that its reasoning in prior cases "would appear equally applicable

to Section 2302(b)(9)(B)," and it thus "presumed" that a perceived

assistance claim under that section is cognizable. The parties

do not contest this, so we likewise presume it to be correct for

the limited purpose of resolving this appeal.

Before filing an appeal with the MSPB, an employee must

exhaust his administrative remedies with the OSC.

(a)(3) (employee "shall seek corrective action from the

Special Counsel before seeking corrective action from the Board");

see also Irizarry v. United States,

(1st Cir.

2005).6

6 For an employee to "establish[that the MSPB has] jurisdiction" over an IRA appeal regarding a perceived assistance claim, he must, in addition to showing that he exhausted remedies before the OSC, make "a nonfrivolous allegation that the agency perceived [him] as a whistleblower [and] that [his] perception as a whistleblower was a contributing factor to [his] nonselection." King, 116 M.S.P.R. at 696.

-15- Below, the MSPB found that Mount failed to exhaust his

perceived assistance claim and therefore it had no jurisdiction to

entertain it. Relying on Federal Circuit precedent requiring that

the employee inform the Special Counsel of the "precise ground" of

his or her whistleblowing charge, see, e.g., Ward v. Merit Sys.

Prot. Bd.,

(Fed. Cir. 1992) ("[T]he employee

must inform [OSC] of the precise ground of his charge of

whistleblowing."); Carney v. Dep't of Veterans Affairs,

, 449 n.2 (2014),7 the MSPB explained that Mount had

never "expressly" raised a perceived whistleblower claim before

the OSC; and that such "theory was never mentioned in the first

iteration of this case." Additionally, the MSPB found that a

"parsing of [Mount's assertions to OSC] does not reveal any alleged

facts that would put OSC on notice of" the perceived assistance

claim.

On appeal, Mount asserts that he exhausted the claim

because the "OSC documents reveal facts that were articulate[d]

with reasonable clarity and precision" and would have put the OSC

on notice of said claim. On the other hand, the DHS argues that

the fact that Mount did not expressly mention his perceived

7 These cases addressed the factual sufficiency of employees' OSC complaints, not whether a particular legal theory was adequately raised.

-16- assistance claim in his OSC complaint is dispositive. In support,

it seizes on the Federal Circuit's "precise ground" formulation to

assert that the "test for exhaustion is not what claims OSC could

or might infer from the face of an appellant's OSC complaint." We

review the MSPB's legal conclusion that Mount failed to exhaust

administrative remedies de novo. See Delgado v. Merit Sys. Prot.

Bd.,

(7th Cir.), as amended on denial of reh'g

and reh'g en banc (7th Cir. 2018).8

After careful consideration, we find that Mount asserts

the correct position. First, we note that the text of the WPA

does not dictate such a stringent exhaustion requirement. The

statute simply states that the employee "shall seek corrective

action from the Special Counsel before seeking corrective action

8 The MSPB, as well as the Federal and Tenth Circuits, frame this exhaustion requirement as jurisdictional. According to the Federal Circuit, "[w]hether the Board had jurisdiction to adjudicate an appeal is a question of law, which we review de novo." Rosario–Fábregas v. Merit Sys. Prot. Bd.,

(Fed. Cir. 2016); see also Acha v. Dep't of Agric.,

(10th Cir. 2016) (deeming exhaustion to OSC requirement as jurisdictional). Nevertheless, the Seventh Circuit has called the jurisdictional characterization into question, noting that "[w]e see nothing in the statutory language . . . mandating that conclusion, particularly in light of the Supreme Court's recent jurisprudence requiring clear signals that a rule is truly jurisdictional rather than a 'case-processing rule' that need not be enforced as jurisdictional." Delgado,

n.3 (citing Reed Elsevier, Inc. v. Muchnick,

(2010)); see also Arbaugh v. Y & H Corp.,

(2006). The parties here have not raised the issue, and we need not decide it to resolve this case.

-17- from the Board."

(a)(3). As the Seventh Circuit

noted in Delgado:

The exhaustion language in the statute is simple and brief. . . . We do not see why this directive should be read to require a federal employee (who typically is not trained in the law) to present to the OSC a perfectly packaged case ready for litigation.

.9 Furthermore, Section 2 of the WPA states

that its purpose "is to strengthen and improve protection for the

rights of Federal employees, to prevent reprisals, and to eliminate

wrongdoing within the Government."

(b),

, 16 (1989)(emphasis added). Thus, without explicit

language, 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.

See Delgado,

("[T]he [MSPB's] stringent application

of the [WPA's] exhaustion requirement can effectively prevent all

but the savviest federal whistleblowers from receiving a hearing

on the merits.").

Second, the legislative history of the statute, as

amended, does not suggest that Congress intended such a legally

technical exhaustion requirement.10 To the contrary, while not in

9 In Delgado, the Seventh Circuit addressed an MSPB decision that was excessively stringent with respect to the sufficiency of the factual allegations presented to the OSC.

. 10 See Delgado,

("We think Congress intended

-18- the context of the specific exhaustion issue before us, Congress

has repeatedly reiterated its whistleblower-protecting mandate.

For instance, the House Report accompanying the bill for the 1994

WPA amendments listed fourteen examples of ways in which "[t]he

body of case law developed by the [MSPB] and Federal Circuit has

represented a steady attack on achieving the legislative mandate

for effective whistleblower protection." H.R. Rep. No. 103-769,

at 17 (1994). Speaking on the House Floor on the day that body

approved a Senate amendment to the House-passed bill, the bill's

sponsor, Representative Pete McCloskey, said that "[a] new example

. . . may be the most significant": the practice of "requiring

whistleblowers to identify the precise personnel actions at issue

in their initial complaint to the Office of Special Counsel." 140

Cong. Rec. H11419-01 (daily ed. Oct. 7, 1994) (statement of Rep.

McCloskey),

, at *H11422; see also Thomas M. Devine,

The Whistleblower Protection Act of 1989: Foundation for the Modern

Law of Employment Dissent,

, 570, n.218

(1999). While the issue of identifying the precise personnel

action is distinct from the one at hand -- identifying the precise

legal theory -- the logic underlying Representative McCloskey's

concern is largely applicable. As he explained:

the exhaustion requirement simply to give the OSC and the employing agency a chance to resolve issues without litigation.").

-19- First this burden forces employees without counsel to fashion their complaints in legally technical language. Second, it is unrealistic, because often the full scope of reprisals is not exposed until the complaint is investigated or otherwise pursued.

140 Cong. Rec. H11419-01 (daily ed. Oct. 7, 1994) (statement of

Rep. McCloskey),

, at *H11422.

Similarly, when Congress further amended the WPA in 2012

and 2014, it expressed concern with the Federal Circuit's

restrictive rulings disfavoring alleged whistleblowers. In 2012,

the relevant Senate Report bemoaned that "federal whistleblowers

have seen their protections diminish in recent years, largely as

a result of a series of decisions by the United States Court of

Appeals for the Federal Circuit." S. Rep. No. 112-155, at 1 (2012).

And in 2014, the House Report accompanying the All Circuit Review

Extension Act of 2014 noted that the authorization of all-circuit

review was "prompted" by "the Federal Circuit's overwhelming

record of ruling against whistleblowers . . . ." H.R. Rep. No.

113-519, pt. 1, at 2 (2014).

Indeed, as recently as 2018, the Senate Report

accompanying the All Circuit Review Act approvingly cited the

Seventh Circuit's decision in Delgado for "differ[ing] from the

Federal Circuit." S. Rep. No. 115-229, at 3 (2018) (citing Delgado,

). As noted earlier, Delgado construed the exhaustion

requirement leniently by holding that a complainant need not

-20- include "every detail that might be necessary to prove at trial."

Delgado,

. The Senate Report stated that "[s]uch

a 'split in the circuit' was intended to occur with all-circuit

review authority, allowing courts to critically review each

other's decisions . . . and increase accountability in their

interpretations of the laws." S. Rep. No. 115-229, at 3 (2018).

While the Senate Report did not expressly adopt or commend the

Seventh Circuit's reasoning in Delgado, it supported "permanently

authoriz[ing] the all-circuit review authority . . . for Federal

employee whistleblower claims."

We therefore believe the correct approach is to

interpret the WPA's exhaustion requirement "more consistently with

other statutory exhaustion schemes," such as those of the Federal

Tort Claims Act ("FTCA") and Title VII of the Civil Rights Act of

1964 ("Title VII"). Delgado,

. Regarding the FTCA,

we have stated that we "approach[] the notice requirement

leniently" and that it is "the information available in the notice

supplied to the agency, and not the form in which it [is]

presented, that [is] crucial." Santiago-Ramírez v. Sec'y of Dep't

of Def.,

(1st Cir. 1993) (citing Corte-Real

v. United States,

(1st Cir. 1991)). In Santiago-

Ramírez, we found that a letter that did not explicitly state a

cause of action nevertheless satisfied the exhaustion requirement

-21- because it provided sufficient factual information about the

incident, the identities of parties involved, and the injury "to

allow the agency to investigate." Id. at 20; see also Ramírez-

Carlo v. United States,

, 46–47 (1st Cir. 2007) (citing

Dynamic Image Techs., Inc. v. United States,

(1st

Cir. 2000)).

Likewise, when examining exhaustion under Title VII, we

have specified that the critical question is whether the claims

"come within the 'scope of the EEOC investigation which can

reasonably be expected to grow out of the charge of

discrimination.'" Powers v. Grinnell Corp.,

(1st

Cir. 1990)(quoting Sánchez v. Standard Brands, Inc.,

(5th Cir. 1970)). In this context, we have stated that "the

exact wording of the charge of discrimination need not presage

with literary exactitude the judicial pleadings which may follow."

(quoting Tipler v. E.I. duPont deNemours & Co.,

(6th Cir. 1971)) (internal quotation marks omitted); see also

White v. N.H. Dep't of Corr.,

(1st Cir. 2000)

("Though the administrative complaint does not spell out all of

the specific [incidents], it was sufficient to describe the

essential nature of the charge and to lead to a reasonable

investigation thereof.").

-22- While not consistently, the MSPB has previously applied

less stringent formulations of the WPA's exhaustion requirement.

For instance, in McCauley v. Dep't of Veterans Affairs, No. CH-

1221-14-0721-W-1,

(M.S.P.B. Feb. 18, 2016), it held

that the appellant had exhausted a perceived whistleblower

allegation because he "stated in his OSC complaint that he was

'called on the carpet' by the VAMC Assistant Director after he

wrote the letter to the head of the agency." And in the context

of determining the degree of specificity required to exhaust a

particular "category of wrongdoing," it stated:

Because the [WPA] is remedial legislation, the [MSPB] will construe its provisions liberally to embrace all cases fairly within its scope . . . . The key to determining whether an appellant has satisfied the exhaustion requirement in an IRA appeal is whether he provided OSC with a sufficient basis to pursue an investigation, not whether he correctly labeled the category of wrongdoing; OSC can be expected to know which category of wrongdoing might be implicated by a particular set of factual allegations.

Pasley v. Dep't of Treasury,

, 111-12 (2008)

(emphasis added). These are in line with our holding today that

it is unnecessary for an employee to correctly label the cause of

action or legal theory behind his claim for it to be deemed

exhausted before the OSC, as long as he or she provides a

"sufficient [factual] basis" for the MSPB to pursue an

investigation regarding that particular claim.

.

-23- While Mount's OSC complaint did not expressly mention a

"perceived assistance claim" or state that his supervisors

"perceived" Mount to have engaged in protected activity, his

allegations can be construed as such, as they support the core

element of a perceived whistleblower claim: "that agency officials

appeared to believe that [he] engaged . . . in whistleblowing

activity." King, 116 M.S.P.R. at 695. Importantly, Mount

repeatedly alleged that his supervisors took actions "to retaliate

against [him] for providing information to SA Hickey that was used

during his OSC whistleblower complaint/investigation against HSI

Boston management officials." Numerous other allegations in the

complaint support this view. For example, Mount alleged that

Kurtz told him that: (1) the "'Front Office' . . . was not happy

about the email" and (2) he had informed those supervisors that

"it was . . . Mount's decision to give the email to SA Hickey."

Moreover, the complaint recounts a later May 2015 meeting in which

Shea, a supervisor, told Mount that he was disappointed in him and

accused him of lying, while Mount attempted to disabuse Shea of

the notion that delivering the email was his own idea.

Additionally, the complaint relates that in August 2015, Mount

"was informed he was being investigated for unauthorized release

of information (giving the email to SA Hickey) and lack of candor

(allegedly not expressly telling DSAC Shea he had read the email

-24- . . .)"; and that in September 2015, a supervisor told Mount that

he did not interview him for an open position for which Mount had

applied "because of the whole lying and Brendan Hickey email

thing."

While we could continue parading examples, we need not

go any further. Together, the above statements imply that Mount's

supervisors had at least a perception that Mount engaged in

protected activity, in this case providing information to SA Hickey

to help him in his whistleblower case. Consequently, we find that

Mount's original OSC complaint provided a sufficient factual basis

to put OSC on notice of a potential perceived assistance claim.

See Delgado,

(holding that appellant satisfied the

WPA's exhaustion requirement "by presenting the OSC with

sufficient information to permit a legally sophisticated reader to

understand his charge of retaliation and to investigate it

further").

III. Conclusion

Because Mount satisfied the WPA's exhaustion requirement

as to his perceived assistance claim, his petition for review is

granted, and the case is remanded as to said claim for further

proceedings consistent with this opinion.

Granted and Remanded.

-25-