Third Circuit: Whistleblower Reprisal Claim Not Over with Expiration of Filing Deadline

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EFFECTIVE

April 3, 2023

  

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Quick Look

  • The Department of Interior’s failure to provide a report or final order before the expiration of a statutory deadline does not mean a claim for whistleblower reprisal has ended.

Discussion

In Jacobs Project Management Co. v. United States Department of Interior, the Third Circuit Court of Appeals stated that a federal contractor employer engaged in prohibited retaliation against a former employee for whistleblowing and that the final order in the employee’s favor was valid despite statutory administrative deadlines.

Here, a federal contract management service’s employee reported billing discrepancies by a third-party to the Department of Interior’s (DOI) Office of the Inspector General (OIG). The employee was instructed not to speak with the OIG again without a company attorney present. However, he continued to meet with the OIG who ultimately found no evidence of misconduct. Subsequently, the federal contract management service did not get their government contract renewed and they placed the employee on a 90-day convenience leave without pay but with benefits. At the end of ninety days, the employee was terminated.

The employee filed a whistleblower reprisal claim with the OIG for retaliation, alleging that his placement on convenience leave was retaliation for his complaints about alleged third-party billing inaccuracies. Under the reprisal statute for whistleblowing federal contractors, the OIG had 180 days with an additional 180-day extension to issue a report. The OIG did not complete its report until well after the combined 360-day deadline. It took the DOI another three years to tell the employer that it never received their response to the report. The employer claimed it never received the OIG’s report and declined to issue a response since the report was issued after the statutory deadline. Ultimately, DOI issued a final order against the employer awarding the employee backpay and reinstatement rights. The employer appealed the final order claiming the DOI did not have jurisdiction due to issuing the final order after the statutory deadline.

The Third Circuit upheld the final order saying that the statute did not actually create a filing deadline on the OIG. Specifically, the deadline’s requirement to meet a timeframe did not mean that the deadline was jurisdictional or that the agency could not continue to act if a lawsuit was not filed. The deadline for agency action is really “a spur to prompt action, not as a bar to tardy completion.” Federal contractors facing whistleblower reprisal claims should note that the expiration of an agency deadline does not necessarily mean that an investigation has concluded. Such contractors should continue to ask for timely reports or final orders.

 

Action Items

  1. Review adverse actions against employees engaging in protected activity, like whistleblowing, with legal counsel.
  2. Consult with legal counsel upon notification of a claim or potential claim.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

 

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase