Jacobs Project Management Co v. DOI ( 2023 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 22-1147
______________
JACOBS PROJECT MANAGEMENT CO.,
Petitioner
v.
UNITED STATES DEPARTMENT OF THE INTERIOR;
JOHN R. WEBER
______________
Petition for Review of a Final Order
of the U.S. Department of the Interior
DOI Case No. OI-VA-16-0167-I
______________
Argued March 6, 2023
______________
Before: SHWARTZ, BIBAS, and AMBRO, Circuit Judges.
(Filed: April 3, 2023)
Ryan T. Bergsieker
Gibson Dunn & Crutcher
1801 California Street
Suite 4200
Denver, CO 80202
Andrew T. Brown
Zachary C. Freund
Julian W. Poon [ARGUED]
Gibson Dunn & Crutcher
333 South Grand Avenue
Los Angeles, CA 90071
Counsel for Petitioner
Edward Himmelfarb [ARGUED]
United States Department of Justice
Civil Division
Room 7541
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Abby C. Wright
United States Department of Justice
Civil Division
Room 7252
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Counsel for Respondent U.S. Department of Interior
John R. Weber
5 Harrison Avenue
East Brunswick, NJ 08816
Pro Se Intervenor-Respondent
2
______________
OPINION OF THE COURT
______________
SHWARTZ, Circuit Judge.
Jacobs Project Management Co. (“Jacobs”) petitions for
review of an order by the United States Department of the
Interior (“DOI”) that found that Jacobs retaliated against a
former employee for whistleblowing in violation of 41 U.S.C.
§ 4712. Jacobs asserts that the DOI lacked jurisdiction to issue
the order because it and the Office of the Inspector General
(“OIG”) acted after various statutory deadlines in § 4712 had
passed. Because the deadlines are not jurisdictional, the DOI
had the authority to issue its order. We will therefore deny the
petition.
I
A
We begin with an overview of the various deadlines that
apply to reprisal claims against federal contractors, like Jacobs.
By way of background, Congress enacted § 4712 as part of the
National Defense Authorization Act for Fiscal Year 2013 as a
“Pilot program for enhancement of contractor protection from
reprisal for disclosure of certain information.” Pub. L. No.
112-239, 126 Stat. 1632, 1837 (2013). Section 4712(a)
prohibits contractors from engaging in reprisals against their
employees for disclosing “gross mismanagement of a Federal
contract” or any other “violation of a law, rule, or regulation
3
related to a Federal contract.” 41 U.S.C. § 4712(a). Under the
statute, a person who believes he has been subject to a reprisal
can file a complaint with the OIG of the relevant agency. Id.§ 4712(b)(1). “[W]ithin 180 days after receiving the
complaint,” the OIG “shall” investigate the complaint and
submit a report. Id. § 4712(b)(1)-(2)(A). The OIG may have
an additional period of “up to 180 days” to issue the report if
the complainant agrees. Id. § 4712(b)(2)(B). “Not later than
30 days after receiving an [OIG] report . . . the head of the
executive agency concerned shall determine whether there is
sufficient basis” to conclude that there was a prohibited
reprisal, and “shall [] issue an order” denying or granting relief.
Id. § 4712(c)(1). If the agency head denies relief or “has not
issued an order within 210 days after the submission of a
complaint,” or, if there was an extension, “not later than 30
days after the expiration of the extension of time,” then “the
complainant shall be deemed to have exhausted all
administrative remedies with respect to the complaint,” and he
“may” file suit “against the contractor . . . to seek . . . relief . . .
in the appropriate district court of the United States,” but must
do so within two years after the date on which his remedies are
deemed to have been exhausted. Id. § 4712(c)(2).
B
With the statutory background in mind, we now turn to
the relevant facts. In March 2014, one of the National Park
Service’s service centers (“NPS”) entered a contract with
Perini Management Services to perform work on Ellis Island.
The NPS hired Jacobs Technology Inc., an entity related to
Jacobs, to provide contract management services on the Perini
contract. Jacobs assigned John Weber as the lead contract
management representative on the project. Weber observed
4
what he believed to be discrepancies between Perini’s work
and its billing practices and disclosed those discrepancies to
the DOI’s OIG in August 2014. Weber informed his direct
supervisor, Roger Haddock, that he had spoken with the OIG,
and Haddock told Weber not to speak with the OIG again
without a company attorney present. Despite this directive,
Weber continued to raise concerns over Perini’s billing
practices and met with the OIG again in October 2015. The
OIG discussed the alleged billing issues with the NPS and
concluded that there was no misconduct.
In November 2015, the NPS informed Jacobs that it
would not extend its contract, purportedly because there was
not enough work in 2016 to warrant the presence of a contract
management representative. After receiving this news, Weber
contacted the OIG and stated that he believed NPS’s decision
not to renew the contract was due to his reports to the OIG, and
that he feared Jacobs would “blame him for the contract non-
extension and not retain him after it expired.” App. 924. In
December 2015, Jacobs’ contract ended, and Weber was
placed on a ninety-day company convenience leave, during
which time Jacobs did not pay Weber a salary but provided him
with health benefits. 1 After the ninety-day period, Jacobs
formally discharged Weber.
Weber filed a complaint with the OIG on December 3,
2015. In an interview with the OIG in January 2016, Weber
1
While on convenience leave, Weber regularly notified
Jacobs that he was available for work and applied for other
open positions within the company, but he was never hired.
Two other Jacobs employees on the Ellis Island project,
however, were reassigned to other projects for the company.
5
expressed his belief that Jacobs placed him on convenience
leave due to his disclosures about the Ellis Island project. The
OIG commenced an investigation. In April 2016, the OIG
requested, and Weber agreed to, an extension of the 180-day
statutory deadline to complete its investigation. From April
through June 2016, the OIG conducted interviews with Jacobs,
Perini, and NPS employees about the Ellis Island project. On
February 21, 2017, beyond the 360-day extended deadline, the
OIG completed and transmitted its report to the Acting
Secretary for the DOI. One week later, the OIG sent redacted
copies of the report to Weber and Jacobs.
More than three years later, on August 5, 2020, the DOI
sent Jacobs a letter indicating that it had not received a
response from Jacobs to the report and offering Jacobs thirty
days within which to respond. Jacobs responded that it had
never received the report, and the DOI then re-sent the report
to Jacobs. On August 13, 2020, Jacobs notified the DOI that it
declined to submit a response, asserting that the report was
issued after the statutory deadline in 41 U.S.C. § 4712 and that
“the OIG and the Secretary [therefore] lack[ed] jurisdiction to
take further action” in the case. App. 1038.
On December 8, 2020, the DOI notified Jacobs and
Weber that it would issue a determination, provided the parties
with redacted exhibits, and offered the parties thirty days to
submit additional information. Jacobs again informed the DOI
that it would not respond because it believed that the agency
lacked jurisdiction.
The DOI issued its final determination and order on
December 1, 2021, well beyond the thirty-day deadline to do
so, which (1) concluded that Jacobs had engaged in a
6
prohibited reprisal against Weber in violation of 41 U.S.C.
§ 4712, (2) awarded Weber $803,906.08, which included
$615,648.79 in backpay covering the period from April 2016,
when Weber was officially terminated, until January 2021,
reduced by the amount Weber earned through other
employment, and (3) ordered Jacobs to reinstate Weber to the
same or a substantially similar position with the same pay and
benefits.
Jacobs petitions for review of the DOI’s authority to
issue the order and, alternatively, asks that we reduce the
award.2
2
Weber did not petition for review of the agency’s
decision.
7
II3
A
We first examine whether the DOI had jurisdiction to
issue its order after the statutory deadlines had passed. To
repeat, § 4712 provides that the OIG “shall investigate” and
3
We have jurisdiction pursuant to 41 U.S.C.
§ 4712(c)(5), which allows a party adversely affected by an
agency’s order to petition for review in “the United States court
of appeals for a circuit in which the reprisal is alleged in the
order to have occurred.” Weber argues that we lack
jurisdiction because he was not a New Jersey resident on the
day he was fired. At least two other circuits have held that
similar provisions about where a violation occurred speak to
venue, not jurisdiction. Peck v. Dep’t of Lab., 996 F.3d 224,
228 (4th Cir. 2021); Brentwood at Hobart v. NLRB, 675 F.3d
999, 1002 (6th Cir. 2012). We need not address that issue.
Whether it goes to jurisdiction or venue, the agency’s order
here clearly alleges that the violation occurred in New Jersey:
Weber worked and resided in New Jersey when he was staffed
on the Ellis Island project, made the protected disclosures to
the OIG, and was placed on company convenience leave.
In reviewing an agency action, we consider whether the
action is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(a).
“The scope of review under the arbitrary and capricious
standard is narrow and a court is not to substitute its judgment
for that of the agency.” Prometheus Radio Project v. FCC, 652
F.3d 431, 444 (3d Cir. 2011) (quoting Motor Vehicle Mfrs.
Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983)).
8
“submit a report of the findings of the investigation” within
“180 days after receiving the complaint” or within an
“additional period of time, up to 180 days,” if the complainant
agrees. § 4712(b)(1)-(2). “Not later than 30 days after
receiving an [OIG] report . . ., the head of the executive agency
concerned shall determine whether there is sufficient basis” to
conclude that there was a prohibited reprisal, and “shall [] issue
an order” denying or granting relief. § 4712(c)(1).
To determine whether these deadlines are jurisdictional,
we consider the statute’s text, context, and purpose. Dolan v.
United States, 560 U.S. 605, 610 (2010). If the language of the
statute directly conveys that the power of the agency is
circumscribed by the deadline, then our inquiry is complete,
and we must conclude the deadline is jurisdictional. See Reed
Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161-62 (2010). If
not, then we consider, among other things, (1) whether the
statute specifies a consequence for noncompliance with the
deadline, Dolan, 560 U.S. at 611, (2) whether the procedural
provisions of the statute reinforce the statute’s purpose, id. at
612, (3) the harm to those who are not responsible for the delay
if the agency does not act by the deadline, id. at 613-14,
(4) whether there are ways a party who may be impacted by the
agency’s tardiness can protect itself from delay, id. at 615, and
(5) whether important public rights are at stake, Brock v.
Pierce County, 476 U.S. 253, 260-62 (1986).4 Each of these
considerations leads us to conclude that the statute’s deadlines
4
The nature of the task and the period of time Congress
directed for the task to be completed may also indicate whether
Congress intended the deadline for agency action to be
jurisdictional. Brock v. Pierce County, 476 U.S. 253, 261
(1986).
9
are not jurisdictional. 5
First, although § 4712 uses the word “shall” when
discussing the deadlines for the OIG to issue its report and the
agency to issue its order, “a statute’s use of [“shall”] alone has
not always led [the Supreme] Court to interpret statutes to bar
judges (or other officials) from taking the action to which a
missed statutory deadline refers.” Dolan, 560 U.S. at 611-12;
Brock, 476 U.S. at 262 (“We hold, therefore, that the mere use
of the word ‘shall’ . . . standing alone, is not enough to remove
the [agency’s] power to act after [the deadline].”); see also
Barnhart v. Peabody Coal Co., 537 U.S. 149, 158 (2003) (“Nor,
since Brock, have we ever construed a provision that the
Government ‘shall’ act within a specified time, without more,
as a jurisdictional limit precluding action later.”). Here, the use
of “shall” alone does not indicate that the deadlines are
jurisdictional.
Second, the text does not contain a consequence for the
agency’s failure to comply with the statutory deadlines. See
5
There are three types of deadlines: (1) a
“jurisdictional” deadline, which is “absolute” and “prevents
the court [or other public official] from permitting or taking the
action to which the statute attached the deadline,” Dolan, 560
U.S. at 610, (2) “claims-processing rules,” which “do not limit
a court’s [or other public official’s] jurisdiction, but rather
regulate the timing of motions or claims brought before the
court [or public official],” id., and (3) a deadline that “seeks
speed by creating a time-related directive that is legally
enforceable but does not deprive a judge or other public official
of the power to take the action to which the deadline applies if
the deadline is missed,” id. at 611.
10
Dolan, 560 U.S. at 611 (explaining that if a statute “does not
specify a consequence for noncompliance with its timing
provisions,” the deadline likely is not jurisdictional (quotation
marks and citation omitted)). In Shenango, Inc. v. Apfel, we
identified several statutes in which Congress had articulated an
explicit consequence. 307 F.3d 174, 194 (3d Cir. 2002) (“42
U.S.C. § 1396n(h) (application for waiver of Medicaid
requirements must be deemed approved if Secretary of Health
and Human Services does not issue a decision within ninety
days); 49 U.S.C. § [11701(c)] (providing that Surface
Transportation Board investigative proceeding is dismissed
automatically if not concluded within three years)”). The
language in those statutes stands in contrast to § 4712, which
does not provide a consequence for an agency head’s failure to
timely issue its final determination.
This is not to say that missing the deadlines here has no
effect. If the agency fails to act within the statutory deadlines,
the complainant will be deemed to have exhausted his
administrative remedies. See § 4712(c)(2) (“the exhaustion
provision”). This result, however, simply gives a complainant
another avenue for seeking relief. It does not mean that the
agency cannot act if a lawsuit is not filed. 6 The permissive
6
Jacobs relies on several immigration cases that
addressed a statute with a similar provision, 8 U.S.C.
§ 1447(b), allowing a naturalization applicant to file a petition
in federal court if the agency fails to render a decision within
120 days. See Aljabri v. Holder, 745 F.3d 816, 821 (7th Cir.
2014) (holding the agency loses jurisdiction over an
application once the applicant files in federal court);
Bustamante v. Napolitano, 582 F.3d 403, 409-10 (2d Cir.
11
nature of the language concerning the complainant’s ability to
file suit conveys that a complainant can also opt to have the
agency decide his claim. See Bustamante v. Napolitano, 582
F.3d 403, 407 (2d Cir. 2009) (“If the naturalization applicant
chooses to do nothing, the application will remain pending
before USCIS with the agency maintaining jurisdiction to
decide the application.”); Etape v. Chertoff, 497 F.3d 379, 385
(4th Cir. 2007) (“Section 1447(b) . . . clearly prescribes
consequences for the [US]CIS’s failure to act: upon an
applicant’s petition, a district court acquires jurisdiction and
may either decide the matter itself or remand to the [US]CIS
with instructions.”).7 Accordingly, the result of an agency’s
tardiness simply provides that complainant another avenue to
seek relief.8
2009) (same); Etape v. Chertoff, 497 F.3d 379, 384-85 (4th Cir.
2007) (same); United States v. Hovsepian, 359 F.3d 1144,
1159 (9th Cir. 2004) (en banc) (same). However, those cases
addressed the separate question of whether the agency retained
jurisdiction once suit was filed in district court. Jacobs’
citation to Stone v. Duke Energy Corp., 432 F.3d 320 (4th Cir.
2005), is unpersuasive for the same reason.
7
See also Kash v. Tex. Educ. Agency Def., No. 19-73-
CP, 2019 WL 9078399, at *14-15 (U.S. Dep’t of Educ. Nov.
22, 2019) (explaining that the exhaustion provision in § 4712
states only that “the complainant may file such an action,”
implying that the “complainant may also continue to await a
decision from the [agency]” (emphasis omitted)).
8
Jacobs’ other textual arguments are unavailing. Jacobs
argues that because the deadlines for the OIG and agency head
in subsections (b)(2) and (c)(1), respectively, are laid out
separately from the exhaustion provision in subsection (c)(2),
12
Third, interpreting the deadlines in § 4712 as
jurisdictional would be contrary to the statute’s primary
purpose, which is to protect whistleblowers from reprisal and
ensure that those who have been subject to reprisals can obtain
relief, see § 4712(a). If the deadlines were viewed as
jurisdictional, then an agency’s tardiness could leave a
complainant without relief for reprisals he may have suffered.
Cf. Dolan, 560 U.S. at 612-13 (holding that jurisdictionally
barring courts from conducting restitution proceedings after
the deadline would be contrary to the statute’s purpose of
ensuring that victims of crime receive full restitution);
Shenango, 307 F.3d at 195 (explaining that the Coal Act’s key
objective was to ensure that miners’ retirement benefits would
be paid by the relevant private parties, and therefore cutting off
these deadlines “must have independent jurisdictional force”
under the canon against surplusage. Pet. Br. at 27. As
discussed, courts are reluctant to hold that a statutory deadline
for agency action is jurisdictional absent an explicit
consequence for failure to comply with that deadline. See, e.g.,
Barnhart, 537 U.S. at 159. Jacobs further asserts that the
statute allows the OIG to extend its deadline for the
investigation but does not afford the same option to the agency
head. Pet. Br. at 28-29. This feature of the statute, however,
does not demonstrate that one deadline is jurisdictional while
the other is not. The fact that Congress included an extension
for the OIG’s investigation and not the agency head’s final
determination likely reflects Congress’s understanding that an
investigation is often more time-consuming than a final
determination. Additionally, courts have held that statutory
deadlines are non-jurisdictional even where Congress has not
included an extension provision. See, e.g., Dolan, 560 U.S. at
611; Brock, 476 U.S. at 262.
13
the agency’s ability to assign miners to the proper entity after
the statutory deadline “would surely frustrate that objective”).
Put differently, interpreting the deadlines by which the agency
must act as jurisdictional would hurt the very people the statute
seeks to benefit based on events they cannot control. See
Dolan, 560 U.S. at 613-14.
Fourth, when “there are less drastic remedies available
for failure to meet a statutory deadline, courts should not
assume that Congress intended the agency to lose its power to
act.” Brock, 476 U.S. at 260. Here, there is a less drastic
remedy available to a party seeking a speedier determination:
it can file suit under the Administrative Procedure Act
(“APA”) to “compel agency action unlawfully withheld or
unreasonably delayed,” 5 U.S.C. § 706(1). See Brock, 476
U.S. at 260 n.7 (noting that nothing in the relevant statute
barred an action to enforce the statutory deadline under the
APA); Sw. Pa. Growth All. v. Browner, 121 F.3d 106, 114-15
(3d Cir. 1997) (holding deadline in Clean Air Act was not
jurisdictional in part because either the petitioner or the state
could have brought an action to enforce the deadline under the
APA).
Fifth, we are reluctant to construe statutory deadlines as
jurisdictional when a statute “does not merely command the
[agency] to file a complaint within a specified time, but
requires [it] to resolve the entire dispute within that time.”
Brock, 476 U.S. at 261. Here, the OIG is tasked with
investigating and issuing a report of the investigation within
180 days of a complaint, or within 360 days with an extension.
§ 4712(b)(2). The agency head then has thirty days to reach a
final determination and issue an order. § 4712(c)(1). As Brock
acknowledged, these are “substantial task[s]” and “the
14
[agency’s] ability to complete [them] within [the deadline] is
subject to factors beyond [its] control.” 476 U.S. at 261.
Finally, we are reluctant to conclude that a deadline is
jurisdictional “when important public rights are at stake.” Id.
at 260; see also Barnhart, 537 U.S. at 158, 160. As discussed,
the statute seeks to protect whistleblowers who report on
mismanagement of federal contracts or gross waste of federal
funds. Thus, similar to the statute at issue in Brock, § 4712
implicates “both the public fisc and the integrity of a
Government [contractor].” 476 U.S. at 259.
For these reasons, the statutory deadlines for agency
action in § 4712 are best interpreted “as a spur to prompt
[agency] action, not as a bar to tardy completion,” Barnhart,
537 U.S. at 172, and thus they are not jurisdictional.
Accordingly, the DOI retained jurisdiction to issue its order
even after the statutory deadlines in § 4712 had passed.9
B
Jacobs asks that, if we conclude that the DOI had
jurisdiction, we reduce the backpay award. Jacobs is a
sophisticated litigant and had multiple opportunities to
9
While the agency’s considerable delay in this case is
“troubling, [it is] not legally significant.” Frey v. U.S. Dep’t
of Health & Hum. Servs., 920 F.3d 319, 325 n.21 (5th Cir.
2019) (addressing agency delay under a nearly identical
whistleblower statute). Here, Jacobs’ allegations of prejudice
do “not so subvert the procedural scheme of [§ 4712] as to
invalidate the [agency’s determination].” United States v.
Montalvo-Murillo, 495 U.S. 711, 717 (1990).
15
challenge the award before the agency. It, however,
intentionally chose to make just one argument, that the agency
lacked jurisdiction. It cannot raise its backpay argument now.
See Sw. Pa. Growth All., 121 F.3d at 112; cf. Barna v. Bd. of
Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 147 (3d
Cir. 2017) (stating “waiver . . . is the intentional relinquishment
or abandonment of a known right” (quotation marks and
citation omitted)).
III
For the foregoing reasons, we will deny Jacobs’ petition
for review.10
10
Because Weber was an intervenor and did not file a
petition for review, we will not consider his request that we
order the agency to increase its monetary award. Sw. Pa.
Growth All., 121 F.3d at 121 (“It is a general rule that an
intervenor may argue only the issues raised by the principal
parties and may not enlarge those issues.”).
16