                                                                                 FILED
                                                                     United States Court of Appeals
                                         PUBLISH                             Tenth Circuit

                          UNITED STATES COURT OF APPEALS                  November 14, 2016

                                                                          Elisabeth A. Shumaker
                                 FOR THE TENTH CIRCUIT                        Clerk of Court
                             _________________________________

JOHN A. ACHA,

       Petitioner,

v.                                                          No. 15-9581

DEPARTMENT OF AGRICULTURE,

       Respondent,

------------------------------

OFFICE OF SPECIAL COUNSEL,

       Amicus Curiae.
                             _________________________________

                         Appeal from the Department of Agriculture
                          (Department No. DE-1221-13-0197-W-2)
                           _________________________________

Ryan C. Gilman, Gilman Law, LLC., Glenwood Springs, Colorado, for Petitioner.

Emma E. Bond, Trial Attorney, U.S. Department of Justice, Washington, D.C.,
(Benjamin C. Mizer, Principal Deputy, Assistant Attorney General, Robert E. Kirschman,
Jr., Director, Elizabeth M. Hosford, Assistant Director, U.S. Department of Justice,
Washington, D.C., and Rayann Lund, of Counsel, Litigation Specialist, U.S. Department
of Agriculture Forest Service, Albuquerque, New Mexico, with her on the brief), for
Respondent.

Carolyn N. Lerner, Special Counsel, Louis Lopez, Associate Special Counsel, and Shayla
Silver-Balbus, Attorney, U.S. Office of Special Counsel, Oakland, California, filed a
brief for Amicus Curiae.
                        _________________________________

Before LUCERO, BALDOCK, and BACHARACH, Circuit Judges.
                         _________________________________

BALDOCK, Circuit Judge.
                    _________________________________

         Petitioner John A. Acha worked as a Purchasing Agent for the Forest Service,

an agency of the Department of Agriculture, at the White River National Forest in

Glenwood Springs, Colorado.        Petitioner’s job, which was subject to a one-year

probationary period, primarily consisted of meeting the Forest Service’s purchasing

needs. Petitioner was also responsible for ensuring that all purchases complied with

the Federal Acquisition Regulation (FAR), a set of “policies and procedures [that

govern] acquisition by all executive agencies.” 48 C.F.R. § 1.101.

         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 noted that another Forest Service

employee “had put $500.00 of his own money down as the deposit on the [apartment]

unit.”    Petitioner believed this specific employee did not have the authority to

obligate the government in such a manner and therefore violated the FAR when he

made this 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


                                             2
Forest Service employee had violated the FAR when he made the unauthorized

deposit on the apartment. 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. Like Petitioner’s supervisor, however,

the record does not indicate that the Inspector General ever took any actions on the

issues Petitioner disclosed in his email.

      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), the independent agency responsible for protecting federal employees

from prohibited personnel practices, alleging that he was actually terminated because

he had disclosed to the Inspector General in April that (1) his fellow employee’s

unauthorized deposit violated the FAR, (2) his supervisor had directed him to cover

this up, and (3) he had been punished for helping in the cover-up. Petitioner, in other

words, alleged that he had been terminated because he was a whistleblower. See

5 U.S.C. § 2302(b)(8).    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 independent agency with the power to

actually order corrective action for employees affected by prohibited personnel

practices. The OSC determined that no official involved in Petitioner’s termination




                                            3
knew of his email to the Inspector General and, as such, his email could not have

contributed to his termination. See 5 U.S.C § 1221(e)(1).1

      As a result, Petitioner appealed the OSC’s determination and sought corrective

action from the MSPB himself. See 5 U.S.C. § 1221(a). As he did before the OSC,

Petitioner argued that he was fired for making protected whistleblowing disclosures

to the Inspector General in April. But this time around he also argued that he was

fired for disclosing the FAR violation to his direct supervisor in January.        The

Department of Agriculture objected to Petitioner’s new allegation that he was

terminated for making a whistleblowing disclosure in January. It argued that because

Petitioner had not raised this argument before the OSC, he had not exhausted all of

his administrative remedies before the OSC regarding his January disclosure. See 5

U.S.C. § 1214(a)(3). And because this failure to exhaust requirement is jurisdictional

in nature, e.g., Ellison v. Merit Sys. Protection Bd., 7 F.3d 1031, 1037 (Fed. Cir.

1993),2 the Department of Agriculture claimed that the MSPB lacked jurisdiction to

consider whether Petitioner was terminated for making this January disclosure.


      1
          Petitioner also argued to the OSC that he was fired because he had refused to
participate in any further violations of the FAR. See 5 U.S.C. § 2302(b)(9).
Petitioner, however, does not present this issue on appeal before our Court, nor does
it affect his appeal in any way, so we do not consider it.
      2
         Until 2012, the United States Court of Appeals for the Federal Circuit had
exclusive jurisdiction “to review a final order or final decision of the [MSPB].”
5 U.S.C. § 7703(b)(1) (2006 & Supp. V 2011). In 2012, however, Congress amended
this statute for federal employees who allege that they were subjected to prohibited
personnel practices because of their whistleblowing disclosures. In those instances,
federal employees may now appeal the MSPB’s decisions to the “United States Court
of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction”
                                          4
      Petitioner responded that he had made his January disclosure to his supervisor

during his “normal course of duties,” which meant that, at the time he filed his

complaint to the OSC, he necessarily could not have received any corrective action

from the MSPB for that disclosure. See, e.g., Huffman v. Office of Pers. Mgmt., 263

F.3d 1341, 1352 (Fed. Cir. 2001) (holding that “an employee who makes disclosures

as part of his normal duties” is not a protected whistleblower), superseded by statute,

Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112-199, 126 Stat.

1465. Thus, Petitioner contended that he had no reason to argue before the OSC that

he was terminated for making his January disclosure. But after the OSC had closed

its inquiry into his case, Congress passed the Whistleblower Protection Enhancement

Act of 2012 (WPEA), which changed the law and allowed employees to obtain

corrective action for disclosures they made in their normal course of duties in certain

circumstances. See 5 U.S.C § 2302(f)(2). Further, the MSPB held in a separate case

that the new protections given to disclosures made during the normal course of an

employee’s duties applied retroactively to all pending cases before the MSPB. Day

v. Dep’t of Homeland Sec., 119 M.S.P.R. 589, 602 (2013). In light of the WPEA and

the MSPB’s decision in Day, Petitioner argued that the MSPB should excuse him

from the exhaustion requirement for his January disclosure; indeed, he contended that


for a five-year trial period that ends in late 2017. 5 U.S.C. § 7703(b)(1)(B) (2012)
(emphasis added), amended by 5 U.S.C. § 7703(b)(1)(B) (Supp. II 2014).
        As a result, we have had jurisdiction over cases like the one Petitioner brings
before us today for only four short years, and our caselaw regarding MSPB decisions
that deal with whistleblowing allegations is thus virtually non-existent. We therefore
utilize many of the Federal Circuit’s past decisions in this area of law for guidance.
                                          5
he should not be punished for refusing to make then-frivolous arguments in his

complaint to the OSC.

      But Petitioner further argued that he did not even need to be excused from the

exhaustion requirement because he had, in fact, exhausted his remedies for the

January disclosure. Specifically, he claimed that although he did not actually allege

in his complaint to the OSC that he was terminated for making his January

disclosure, he did include information about the January disclosure in his complaint.

For support, he noted that he had attached his April email to the Inspector General to

his complaint to the OSC and that in this email he had specifically discussed that he

disclosed the FAR violation to his supervisor in January and was punished for doing

so. He reasoned that this was enough for him to exhaust his administrative remedies,

for the failure to exhaust requirement demands only that an employee “give the

Office of Special Counsel sufficient basis to pursue an investigation which might

have led to corrective action.” Serrao v. Merit Sys. Protection Bd., 95 F.3d 1569,

1577 (Fed. Cir. 1996) (emphasis added) (internal quotation marks omitted).

      The MSPB agreed with Petitioner and concluded that his failure to argue

before the OSC that he was terminated for making the January disclosure to his

supervisor was not fatal to its jurisdiction. Although it did not mention Day or the

change in law brought about by the WPEA, it agreed with Petitioner that he had

provided enough information about his January disclosure to the OSC so that the

OSC could sufficiently pursue an investigation of that claim.       Thus, the MSPB



                                          6
determined that “although the allegations could be clearer,” Petitioner exhausted his

remedies before the OSC regarding the January disclosure.

      Moving on to the merits, however, the MSPB determined that Petitioner was

not entitled to corrective action for either his January disclosure to his supervisor or

his April disclosure to the Inspector General. Regarding his April disclosure, the

MSPB agreed with the OSC that no officials involved in Petitioner’s termination had

knowledge of his email to the Inspector General, so it could not have contributed to

his termination. See 5 U.S.C § 1221(e)(1). And regarding the January disclosure, the

MSPB recognized that although disclosures made during the normal course of duties

now could warrant corrective action under the WPEA, such corrective action was not

guaranteed. Instead, the MSPB concluded that corrective action for disclosures made

during the normal course of duties was contingent on whether an employee could

prove that the officials responsible for the personnel action at issue acted with an

improper “retaliatory motive”—that is, a heightened burden that is not required when

a whistleblower makes a disclosure outside the normal course of his duties. Compare

5 U.S.C § 2302(f)(2) (forbidding personnel actions relating to a disclosure made

during the normal course of duties only if the action is “in reprisal for” the

disclosure), with 5 U.S.C § 2302(b)(8) (forbidding personnel actions relating to all

other disclosures when the action is merely “because of” the disclosure). In the

MSPB’s eyes, if the employee could not prove such a motive, then the employee’s

disclosure was not a “protected” whistleblowing disclosure and therefore could factor

into the personnel action at issue without being unlawful. Utilizing this logic, the

                                           7
MSPB concluded that even if Petitioner could prove his January disclosure factored

into his termination, he could not prove the officials responsible for his termination

acted with a retaliatory motive regarding that disclosure.          Thus, the MSPB

determined that Petitioner’s January disclosure was not protected and refused to

order corrective action for it.

       Before this Court, Petitioner does not challenge the MSPB’s ruling regarding

his April disclosure to the Inspector General; he appeals only the MSPB’s ruling

regarding his January disclosure to his supervisor. In so doing, he does not take issue

with the MSPB’s finding that his disclosure to his supervisor was made during his

normal course of duties, nor does he dispute that he cannot prove a retaliatory

motive. Instead, he argues 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. For a variety of different reasons, he contends that any inquiry into the

existence of a retaliatory motive—if such a motive is even required under the

WPEA—is instead “properly reserved for consideration after a protected disclosure is

found” and that the burden is on the Department of Agriculture to prove that its

officials lacked a retaliatory motive when they terminated him. Appellant’s Br. 13

(emphasis added). He therefore asks us to set aside the MSPB’s finding that he failed

to make a protected disclosure, find that this disclosure was protected, and remand

this case back to the MSPB for further proceedings.

       But before we may determine whether we should do so, we have the sua

sponte obligation to satisfy ourselves “not only of [our] own jurisdiction, but also

                                          8
that of the lower courts,” which, in this case, happens to be the MSPB, “even though

the parties are prepared to concede it.” Steel Co. v. Citizens for a Better Env’t, 523

U.S. 83, 95 (1998) (internal quotation marks omitted). Generally, we would have

jurisdiction to adjudicate Petitioner’s appeal from the MSPB’s final decision pursuant

to 5 U.S.C. § 7703(b)(1)(B). If, however, the MSPB itself did not have jurisdiction

to determine whether Petitioner was entitled to corrective action for his January

disclosure, then we have jurisdiction “merely for the purpose of correcting the error

of the lower court in entertaining the suit.”     Steel Co., 523 U.S. at 95 (internal

quotation marks omitted). And when reviewing whether the MSPB had jurisdiction,

we are bound by the MSPB’s jurisdictional factual findings “unless those findings are

not supported by substantial evidence,” but we review de novo the ultimate legal

question whether the MSPB had jurisdiction to adjudicate an appeal.          Rosario-

Fabregas v. Merit Sys. Protection Bd., 833 F.3d 1342, 1345 (Fed. Cir. 2016) (internal

quotation marks omitted); see also Waldau v. Merit Sys. Protection Bd., 19 F.3d

1395, 1398 (Fed. Cir. 1994) (“[W]e review de novo the question whether the MSPB

has jurisdiction to adjudicate a case.”); 5 U.S.C. § 7703(c).

      What gives us pause is the MSPB’s determination that Petitioner exhausted his

administrative remedies before the OSC for his January disclosure to his supervisor.

This exhaustion requirement is governed by 5 U.S.C. § 1214(a)(3) and states that,

subject to an exception not applicable here, a federal employee “shall seek corrective

action from the [Office of] Special Counsel before seeking corrective action from the

[MSPB].”     As the MSPB itself recognized, this requirement is jurisdictional in

                                           9
nature. Ellison, 7 F.3d at 1037; McCarthy v. Merit Sys. Protection Bd., 809 F.3d

1365, 1374 (Fed. Cir. 2016).3      And as the MSPB also recognized, § 1214(a)(3)

requires an employee to “give the Office of Special Counsel [a] sufficient basis to

      3
         We are cognizant of recent Supreme Court cases that caution us to label a
statutory rule as jurisdictional only when “Congress has ‘clearly state[d]’ that the rule
is jurisdictional.” Sebelius v. Auburn Reg’l Med. Ctr., 133 S. Ct. 817, 824 (2013)
(alteration in original) (quoting Arbaugh v. Y&H Corp., 546 U.S. 500, 515 (2006)).
We are equally cognizant that, for this very reason, our Court has of late cast doubt
on whether exhaustion requirements in other statutes are actually jurisdictional. See,
e.g., Muskrat v. Deer Creek Pub. Sch., 715 F.3d 775, 783–84 (10th Cir. 2013)
(pausing to consider whether the exhaustion requirement of the Individuals with
Disabilities Education Act (IDEA) should remain jurisdictional in light of the
Supreme Court’s recent remarks, but ultimately concluding that “for purposes of this
case IDEA exhaustion’s status as a jurisdictional prerequisite is not at issue”). We
note that our Court has even explicitly held that some exhaustion requirements are
now properly nonjurisdictional. See, e.g., Hull v. IRS, U.S. Dep’t of Treasury, 656
F.3d 1174, 1181–82 (10th Cir. 2011) (holding that the exhaustion requirement of the
Freedom of Information Act (FOIA) is nonjurisdictional because the FOIA “does not
unequivocally make” the exhaustion requirement jurisdictional (internal quotation
marks omitted)).
       That said, Congress has clearly indicated that the exhaustion requirement
outlined in § 1214(a)(3) is jurisdictional. The context of § 1214(a)(3) and its
placement in the overall statutory scheme is instructive as to why. See Auburn Reg’l,
133 S. Ct. at 824 (“This is not to say that Congress must incant magic words in order
to speak clearly [about jurisdiction]. We consider context . . . as probative of
whether Congress intended a particular provision to rank as jurisdictional.” (internal
quotation marks omitted)). First, consider that Congress explicitly stated that the
MSPB shall “hear, adjudicate, or provide for the hearing or adjudication, of all
matters within the jurisdiction of the [MSPB] under this title . . . .” 5 U.S.C.
§ 1204(a) (emphasis added). The only matters within the jurisdiction of the MSPB,
in turn, are those expressly made appealable to it “under any law, rule, or regulation.”
Id. § 7701(a). Finally, one of the matters made appealable to the MSPB is cases
wherein a federal employee alleges that he is entitled to corrective action for making
whistleblowing disclosures, but an employee’s ability to bring such a case is
“[s]ubject to the provisions of . . . subsection 1214(a)(3).” Id. § 1221(a) (emphasis
added). Combining these statutes, it is thus clear that if a federal employee cannot
satisfy the requirements of § 1214(a)(3)—that is, the exhaustion-of-remedies
requirement—then his whistleblowing claim is not appealable to the MSPB under
any law, rule, or regulation, which necessarily means that the MSPB does not have
jurisdiction over his claim.
                                           10
pursue an investigation which might have led to corrective action.” Serrao, 95 F.3d

at 1577; see also id. (noting that an employee must “articulate with reasonable clarity

and precision [before OSC] the basis for his request for corrective action” (alteration

in original) (internal quotation marks omitted)). Thus, when hearing an employee’s

appeal from the OSC, the MSPB’s jurisdiction is “limited to those issues that have

been previously raised with OSC.” McCarthy, 809 F.3d at 1374 (internal quotation

marks omitted).

      Unlike the MSPB, we believe that Petitioner did not raise his January

disclosure with the OSC in a way that would allow the OSC to sufficiently pursue an

investigation. Even though Petitioner’s complaint to the OSC undoubtedly included

his April email to the Inspector General (which, in turn, discussed his January

disclosure to his supervisor), this is not enough. Instead, the fact that he did not even

attempt to allege in the complaint itself that he was terminated for making the

January disclosure was fatal to the MSPB’s jurisdiction.

      For illustration, consider the decision in McCarthy v. Merit Systems Protection

Board, where the Federal Circuit encountered an almost identical issue and ruled that

the MSPB lacked jurisdiction. In that case, a federal employee submitted a report to

the State Department’s Office of the Inspector General in which he alleged that his

employer was engaging in different types of fraud, waste, and abuse. McCarthy, 809

F.3d at 1368. Significantly, the employee specifically noted in the report that he had

previously informed his supervisor of these instances of fraud, waste, and abuse via

different legal memoranda he had drafted.         Id.   The employee was thereafter

                                           11
terminated. Id. As is the case with Petitioner, the employee then filed a complaint

with the OSC wherein he alleged only that his termination was because of the report

he had submitted to the Inspector General—he did not allege that the legal

memoranda he had drafted earlier contributed to his termination. Id. As is also the

case with Petitioner, the employee’s failure to allege that these legal memoranda

contributed to his termination stemmed from the fact that these memoranda were

made during the normal course of his duties, which, at the time, meant that he had

absolutely no chance of receiving corrective action for them. Id.

      The OSC refused to seek corrective action on the employee’s behalf. Id. The

employee sought corrective action from the MSPB, which initially affirmed the

OSC’s decision. Id. But afterward, Congress enacted the WPEA, and as a result the

employee asked the MSPB to reopen his case based on the fact that he could now

allege that the legal memoranda contributed to his termination. Id. at 1368–69. The

MSPB refused to reopen his case and dismissed his appeal. Id. at 1369.

      Upon review, the Federal Circuit affirmed the MSPB’s decision on the

grounds that the MSPB lacked jurisdiction to hear the employee’s case because the

employee had not exhausted his administrative remedies with the OSC. Id. at 1375.

In pertinent part, the Federal Circuit stated the following:

      [The] OSC complaint only identifies [the employee’s] . . . report to the
      [Inspector General] and a . . . disclosure to Congressman Reyes. It makes
      no mention of his legal memoranda. Given this, the OSC’s “basis to pursue
      an investigation” was only these two disclosures and the circumstances
      surrounding them, such as whom these disclosures were made to, [his
      employer’s] awareness of these disclosures, and how they related to the
      events that led to [his] termination. This did not provide the OSC with a

                                           12
      “sufficient basis to pursue an investigation” with respect to [his] legal
      memoranda—these were different disclosures, made to different people, at
      different times.

      Moreover, the case that [he] presented to the OSC . . . substantially differs
      from the case he presents now. [Before the OSC, his] legal memoranda
      were not considered protected disclosures . . . ; thus, the OSC would have
      had no basis to investigate the legal memoranda and develop findings
      related to these disclosures. What [he] presents now is in essence a
      different case, and the OSC has not had an opportunity to “effectively
      pursue an investigation” with respect to these circumstances.

                                          ***

      [The employee] also argues that the exhaustion requirement only applies
      to the content of whistleblowing disclosures, and that existing case law
      does not require that he correctly affix legal labels to these facts. We
      agree that the focus of the exhaustion requirement is on substance;
      however, [he] has not satisfied this requirement here. . . . [T]he core
      substance of [his] complaint has shifted from a single disclosure to the
      [Inspector General] (which, at best, was at least in part cumulative of a
      nebulous collection of previous disclosures) to four distinct legal
      memoranda provided to specific individuals at specific times.

      We find, then, that [the employee] has not exhausted his OSC remedies
      with respect to the legal memoranda.

Id. at 1374–75 (emphases added) (citations omitted).

      Although we are not bound by Federal Circuit precedent, we find the McCarthy

court’s logic powerful and persuasive.     We are not prepared to say that Petitioner

exhausted his administrative remedies before the OSC regarding his January disclosure

just because he discussed it as pertinent background information in his disclosure to the

Inspector General. That was not enough for the McCarthy court—where, as stated above,

the employee referenced in his report to the Inspector General previous disclosures he

had made—and it is not enough for us. Indeed, and as the McCarthy court put it, the


                                           13
“core substance” of Petitioner’s complaint has “shifted from a single disclosure to the

Inspector General” to a “distinct” disclosure that he provided to his supervisor three

months earlier. This was a “different disclosure, made to [a] different [person], at [a]

different time[].”   The simple fact that the OSC knew about Petitioner’s January

disclosure would not have made it aware that it should have investigated whether he was

terminated for making this disclosure when the complaint itself, like the complaint in

McCarthy, “makes no mention” on its face of any other disclosures. See Serrao, 95 F.3d

at 1577 (“[A]n employee [must] articulate with reasonable clarity and precision the

basis for his request for corrective action.” (emphasis added)).

       The change in law brought about by the WPEA—protecting disclosures made

during the normal course of duties—simply highlights and buttresses this conclusion.

Because Petitioner’s January disclosure could not have merited corrective action when he

filed his complaint with the OSC, “the OSC would have had no basis to investigate the

legal memoranda and develop findings related to these disclosures.” Petitioner’s case

before the MSPB and our Court, therefore, “is in essence a different case,” and the OSC

is entitled to determine in the first instance whether it would like to pursue corrective

action on his behalf for his January disclosure.

       We adhere to our conclusion today even though we have previously recognized

that exhaustion is not required “where it would be futile or fail to provide adequate

relief.” McQueen ex rel. McQueen v. Colo. Springs Sch. Dist. No. 11, 488 F.3d 868, 874

(10th Cir. 2007) (internal quotation marks omitted); see also Honig v. Doe, 484 U.S. 305,

327 (1988) (“[E]xhaustion . . . should not be required . . . in cases where such

                                             14
exhaustion would be futile either as a legal or practical matter.” (omissions in

original) (internal quotation marks omitted)). To be sure, it would indeed have been

futile for Petitioner to argue to the OSC that his January disclosure could merit corrective

action—at the time, and as we have discussed, Petitioner would have undoubtedly lost on

such an argument. McQueen, 488 F.3d at 875 (holding that exhaustion is futile when “it

is clear at the outset” that the administrative agency cannot grant any relief for the

claim at issue). That said, the Supreme Court has specifically informed us that courts

are “not [to] read futility or other exceptions into statutory exhaustion requirements

where Congress has provided otherwise”—that is, when “Congress has mandated

exhaustion.” Booth v. Churner, 532 U.S. 731, 741 n.6 (2000) (emphasis added); see

also Shawnee Trail Conservancy v. U.S. Dep’t of Agric., 222 F.3d 383, 389 (7th Cir.

2000) (“Although we do not believe that the district court had the power to waive the

statutorily-mandated exhaustion requirement of the APA, the plaintiffs have not

demonstrated that the district court erred in applying administrative exhaustion even

if we assume arguendo that the district court had the discretion to excuse that failure

on the ground of futility.” (citations omitted)); Glisson v. U.S. Forest Serv., 55 F.3d

1325, 1327 (7th Cir. 1995) (distinguishing the flexible common law doctrine of

administrative exhaustion with the “inflexible command of a statute”). And here,

Congress has indeed mandated exhaustion via 5 U.S.C. § 1214(a)(3). See supra. We

are therefore prohibited from applying the futility doctrine to Petitioner’s claim that

he was terminated for making his January disclosure to his supervisor.             He was

strictly required to present this claim to the OSC first.

                                            15
      Nor is it significant that the MSPB held in Day v. Department of Homeland

Security that the WPEA’s new rules regarding disclosures made during the normal

course of an employee’s duties are retroactive. Day, 119 M.S.P.R. at 602. Questions

of retroactivity and questions of jurisdiction are distinct. An employee must still

exhaust his administrative remedies before the OSC for disclosures made during the

normal course of duties before he can claim that the substantive change in law as

enacted by the WPEA applies to those disclosures. Indeed, we note that even in

McCarthy neither party “dispute[d] that the WPEA could be applied retroactively”

and yet the Federal Circuit still found that the employee failed to exhaust his

administrative remedies. McCarthy, 809 F.3d at 1369.

      In conclusion, the MSPB lacked jurisdiction to consider whether Petitioner

was terminated for disclosing the FAR violation to his supervisor in January. We

therefore vacate the MSPB’s decision insofar as it concluded that Petitioner’s

January disclosure was not a protected disclosure and remand this case back to the

MSPB to dismiss that issue for lack of jurisdiction.4 The MSPB’s decision regarding

his April disclosure to the Inspector General still stands.




      4
        We note that Petitioner remains free to pursue a complaint with the OSC with
respect to his January disclosure, “as there is no statutory time limit for filing a
request for corrective action with the OSC.” McCarthy, 809 F.3d at 1375 (citing
Augustine v. Dep’t of Justice, 50 M.S.P.R. 648, 652 (1991)).

                                           16
      VACATED IN PART and REMANDED for further proceedings consistent

with this opinion.5




      5
         The OSC filed an amicus curiae brief that argues the MSPB’s decision
should be reversed on the merits because Petitioner actually did not make his January
disclosure during his “normal course of duties,” and the Department of Agriculture
filed a motion asking for leave to respond to the OSC’s brief. But because both
Petitioner and the Department of Agriculture have steadfastly assumed before the
MSPB and our Court that the January disclosure was made in the normal course of
duties, and because we vacate the MSPB’s decision on jurisdictional grounds without
deciding whether reversal is warranted on the merits, we decline to address the
OSC’s argument and express no opinion on it. The Department of Agriculture’s
motion asking for leave to file a response is accordingly denied as moot.
                                         17
