Karen Fuerst v. The Housing Authority of the City of Atlanta, Georgia

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10285
____________________
KAREN FUERST,
Plaintiff-Appellant,
versus
THE HOUSING AUTHORITY OF THE CITY OF ATLANTA,
GEORGIA,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:20-cv-02027-MHC
____________________
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2 Opinion of the Court 21-10285
Before N EWSOM , BRANCH, and B RASHER , Circuit Judges.
B RANCH, Circuit Judge:
By its plain text, the National Defense Authorization Act
(“NDAA”), 41 U.S.C. § 4701
et seq., protects employees of federal
“contractor[s], subcontractor[s], grantee[s], [and] subgrantee[s] or
personal services contractor[s]” from their employers’ retaliation
for disclosing information that the employee reasonably believes
to be evidence of gross mismanagement of a federal contract or
grant, an abuse of authority related to a federal contract or grant,
or a violation of a law, rule, or regulation pertaining to a federal
contract or grant. 41 U.S.C. § 4712(a)(1).
The NDAA notwithstanding, in 2017, Karen Fuerst—then
an attorney employed by the Atlanta Housing Authority (“AHA”),
which is a recipient of federal grant funds—was fired after
challenging the negotiation tactics of AHA’s new CEO, Catherine
Buell. Fuerst’s complaints filed with the Department of Housing
and Urban Development (“HUD”) inspector general and the
United States District Court for the Northern District of Georgia
were both dismissed for failure to state a claim under the NDAA.
On appeal, Fuerst argues that the district court erroneously
concluded that § 4712 did not apply to her as an employee of a
federal “grantee,” and erroneously found that she merely alleged
a difference of opinion, not a specific violation of a contract or
grant.
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21-10285 Opinion of the Court 3
We agree with Fuerst that she falls within the class of
disclosing persons protected by § 4712; the district court erred in
concluding otherwise. Regardless, we affirm the district court
because Fuerst failed to show that her belief that Buell’s actions
evinced gross mismanagement was reasonable. Nor did she show
that she had a reasonable belief that Buell’s actions constituted an
abuse of authority or a violation of a law, rule, or regulation.
Accordingly, after careful review and with the benefit of oral
argument, we affirm.
I. BACKGROUND
A. Factual Background1
i. The Atlanta Housing Authority
AHA is a corporation organized under Georgia’s Housing
Authorities Law, O.C.G.A. § 8-3-1,
et seq. Its bylaws describe the
organization’s mission to “provide quality, affordable housing in
amenity rich, mixed-income communities for the betterment of
the community.” According to Fuerst’s complaint, AHA is the
state’s largest housing authority, providing and facilitating
affordable housing for nearly 22,000 low-income households.
Pursuant to Georgia’s Housing Authorities Law, Atlanta’s mayor
appoints members to AHA’s Board of Commissioners.
See
O.C.G.A. § 8-3-50(a)(1). However, according to Fuerst, HUD
1 Because this case comes to us on appeal from a grant of a motion to dismiss,
we adopt the factual allegations in Fuerst’s complaint.
See Timson v.
Sampson, 518 F.3d 870, 872 (11th Cir. 2008) (per curiam).
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4 Opinion of the Court 21-10285
provides the majority of AHA’s funding and regulates the
Authority’s activity through conditional grant terms.
Historically, municipalities concentrated affordable housing
units in discrete locations, or “housing projects.” However, HUD
now requires its grant recipients, including AHA, to develop new
affordable housing units in “deconcentrated” communities.
Hence, AHA currently finances “mixed-income” communities in
Atlanta, in which a portion of units contain subsidized rent-reduced
apartments for low-and-middle income residents.
But before AHA can provide affordable housing, developers
must first agree to build it. Therefore, to incentivize builders, AHA
enters into revitalization agreements with them, under which the
parties agree to develop the sites of former public housing projects
into mixed-use, mixed-income communities. Using money it
receives from HUD grants, AHA provides the developers with
subordinated loans, covering a portion of the construction costs for
low-income units. To obtain additional financing, the developer
and AHA both then apply for low-income housing tax credits
(“LIHTCs”) from the State, which they resell to high-income
investors looking to mitigate tax burdens. LIHTCs are governed
by the Internal Revenue Code and issued by the Georgia
Department of Community Affairs (“GDCA”), which awards
LIHTCs through a competitive application process.
See 26 U.S.C.
§ 42.
LIHTCs are necessary to incentivize builders to engage in
mixed-income housing development. After a builder constructs
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21-10285 Opinion of the Court 5
the affordable housing units at the site of a former housing project,
it may then engage in further market rate unit development;
however, constructing additional affordable housing may risk
exceeding HUD’s cap on the percentage of affordable housing units
at any given property. To qualify for LIHTCs, builders must own
a qualifying “low-income building” by the end of the first year in
which they claim the credits. 26 U.S.C. § 42(g)(3)(a). A taxpayer
may elect to use one of three tests to qualify a building for LIHTCs;
federal law makes that election “irrevocable.”2
Id. § 42(g)(1).
In AHA’s mixed-income properties, developers rent 40% of
the available units at market rates. The remaining 60% of units are
split 20-40 into two affordable housing subsets, moderate income
and “public housing-assisted” (“PHA”) units. Developers receive
AHA funding to build both types of affordable units, and, in
addition, may apply for LIHTCs, issued by Georgia in accordance
with federal tax law.
See 26 U.S.C. § 42. Although LIHTCs
sufficiently offset the decreased rent paid by moderate income
2 The taxpayer may qualify using: (A) the “20-50 test,” under which “20 percent
or more of the residential units in [a] project are both rent-restricted and
occupied by individuals whose income is 50 percent or less of area median
gross income;” (B) the “40-60 test,” which requires that “40 percent or more
of the residential units in [a] project are both rent-restricted and occupied by
individuals whose income is 60 percent or less of area median gross income;”
or (C) the “[a]verage income test,” which subject to certain restrictions,
requires “40 percent or more . . . of the residential units in such project are
both rent-restricted and occupied by individuals whose income” does not
exceed an aggregate average of 60% of the area median gross income.
See 26
U.S.C. § 42(g)(1).
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6 Opinion of the Court 21-10285
renters to building owners, they alone do not incentivize owners
to accept the even lower rate paid by PHA occupants. Thus, using
its HUD grant funds, AHA supplements PHA renters’ payments.
Consequently, a building owner receives the same rate for PHA
and moderate-income units.
Sometime in the late 1990s or early 2000s, AHA entered into
a series of revitalization agreements with Integral, a local property
developer, which gave Integral the right to develop former housing
project sites in phases. Under the agreements, Integral would first
build new affordable housing with AHA’s assistance, and,
afterwards, using private financing, it would complete the project
by building market rate units. Ostensibly, AHA gained little by
allowing Integral to engage in purely private development. On the
other hand, the ability to build market rate units sweetened the pot
for Integral, likely increasing its overall enthusiasm for the
affordable housing components of the project. Notably, although
the initial agreements between AHA and Integral reserved
negotiation on the scope of Integral’s private projects, they
imposed a deadline on the exercise of those development rights to
prevent Integral from sitting on the affordable housing projects in
perpetuity.
ii. Fuerst joins AHA
In 2010, Karen Fuerst was hired into AHA’s general
counsel’s office, where she spent the next seven years receiving
consistently positive feedback and was eventually promoted to
Senior Vice President and Deputy General Counsel for Real Estate.
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21-10285 Opinion of the Court 7
By 2016, Fuerst served on AHA’s Investment Committee (“IC”), a
management body that makes major decisions about the
organization’s policies and expenditures. According to Fuerst, she
also served as “AHA’s lead real estate counsel and its lead legal
liaison with HUD.” Under then-CEO Joy Fitzgerald, Fuerst claims
that she was a trusted advisor and routinely consulted on most real-
estate and policy matters.
Thus, when AHA agreed to allow Integral to develop the
University Homes housing project—including certain “further
leverage,” or privately financed market rate units—in 2011, Fuerst
was the lead attorney involved in the negotiations. By that point,
the HUD-mandated, and AHA-subsidized, housing phases of the
AHA-Integral revitalization plan for the University Homes site had
been developed, the HUD revitalization grant had been fully
expended, and the affordable housing portion of the project’s units
were completed and occupied by low- and middle-income
residents. As a result, Integral could develop the remaining market
rate units through private financing without constructing any
more affordable units.
In January 2016, AHA hired Catherine Buell as its COO and,
that September, it announced that she would serve as its next
president and CEO starting in 2017. In late 2016, AHA’s IC met
several times to discuss various closings on Integral developments,
which were partially funded with LIHTCs. Fuerst contends that,
at these meetings, Buell: (1) “disavowed” the terms of existing
agreements between AHA and Integral; (2) disavowed the terms of
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8 Opinion of the Court 21-10285
recent AHA board approvals that Integral had included in its
LIHTC applications to the GDCA; and (3) “arbitrarily sought to
force Integral to instead agree to more onerous terms by
continually delaying requests for the Board approvals,” preventing
AHA and Integral from closing prior to the date necessary to
receive their LIHTCs.3 Although Fuerst’s complaint fails to specify
these risks clearly, as best we can tell, she believed that Buell’s plan
jeopardized Integral’s LIHTCs because Integral needed to proceed
with market rate housing to avoid exceeding the concentration cap
which was a part of AHA’s and Integral’s LIHTC election
application. And Fuerst ostensibly feared that if Integral refused to
reopen negotiations with AHA, the consequent failure to close on
the private development portion of the project would then prevent
AHA from receiving, and therefore selling, future LIHTCs, thereby
threatening its ability to complete its mission to construct more
affordable housing.
According to Fuerst, she “admonish[ed]” the IC regarding
the risks that Buell’s “proposed actions” posed to AHA’s HUD
grant and LIHTC funding sources, and, in response, Buell began to
freeze her out of real estate negotiations at AHA. At first, Fuerst
noticed that she was invited to fewer and fewer senior leadership
meetings. Then, she discovered that AHA’s website was altered to
omit her as a senior leadership team member. In subsequent IC
3 Although Fuerst references multiple agreements in her complaint, as best we
can tell, the present dispute focuses on the University Homes agreement, in
particular, as the relevant project for AHA’s HUD grant.
See infra n.5.
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21-10285 Opinion of the Court 9
meetings, Fuerst, who had previously been consulted on all
matters related to real estate, learned for the first time about
various projects, despite being responsible for all relevant real
estate legal issues. According to Fuerst, her exclusion meant that
the IC was advancing deals without consulting internal counsel,
and, to her knowledge, without input from outside counsel either.
Next, Fuerst claims that Buell and the then-General
Counsel, Paul Vranicar, began to shunt real estate work to other
AHA attorneys without Fuerst’s supervision or input, and that
Buell then walled her off from any discussion of Integral’s projects.
Allegedly, Buell also cut her out of communications with HUD
regarding AHA’s compliance with the terms of the federal HUD
grant from which it benefited, despite Fuerst having previously
been the lead legal liaison with HUD. Fuerst maintains that some
of these communications included warnings from the GDCA about
the potential loss of LIHTC funding due to AHA’s failure to
effectuate timely closings.
The situation between Fuerst and Buell continued to
escalate. In December 2016, Fuerst informed Buell and Vranicar
that Fuerst was aware of AHA’s engagement of a recruiting firm to
find a new management-level real estate attorney and that AHA
was engaging in real estate projects without consulting her. Fuerst
offered to resign, but Buell convinced her to stay, claiming that the
new hire simply reflected an increase in expected workloads.
Fuerst claims to have told Buell and Vranicar that she did not think
that they “fully appreciate[d]” the context of the 2011 agreement
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10 Opinion of the Court 21-10285
with Integral, and that it was possible that the previous CEO may
even have “lied” to Buell about it. Fuerst offered to prepare a
briefing on the agreement, and Buell accepted.
On February 16, 2017, Fuerst’s dispute with Buell reached
its zenith in an IC meeting over the latter’s plan not to approve an
upcoming financial closing with Integral unless Integral agreed to
what Fuerst describes as “substantially new, less favorable terms”
that “Buell was seeking to cram down onto Integral.” Apparently,
Fuerst asked Mike Wilson, AHA’s business lead on the relevant
deal, whether Buell’s “proposed” terms violated the 2011
agreement between AHA and Integral, and Wilson said that they
did. Fuerst explained to the IC that following Buell’s strategy
would “risk” both parties missing the LIHTC deadlines, thereby
preventing them from financing construction, and, consequently,
AHA’s defaulting under the HUD grant agreement.4 As the
exchange between the two grew heated—Buell allegedly screamed
at Fuerst over whether forcing Integral to accept new terms would
violate a duty of good faith and fair dealing—Fuerst emphasized to
the IC that it had approved AHA’s LIHTC application the year
before, which relied on the same terms that Buell now sought to
renegotiate. Consequently, she explained, failure to close by the
4 According to Fuerst, HUD’s grant agreement with AHA mandated that
financing for the first development project funded by the grant needed to be
closed by March 28, 2017, and that HUD threatened to withdraw the grant
funds as AHA’s hardball tactics brought AHA and Integral closer to the
deadline.
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21-10285 Opinion of the Court 11
deadline would prevent AHA from applying for future LIHTCs,
cause AHA to lose money, prevent AHA from accomplishing its
mission, and put AHA at risk of losing the HUD grant, to say
nothing of the damage to AHA’s deal with Integral.
On or around February 20, 2017, twenty of AHA’s senior
leadership, including Fuerst and Buell, attended yet another
meeting in which Buell took exception with the 2011 agreement
with Integral. At the meeting, Buell also announced that the
Atlanta Journal-Constitution would be running an article about the
deal.
Much to Fuerst’s surprise, on February 24, 2017, COO Mark
Kemp and AHA’s HR director told Fuerst that Fuerst was being
investigated in conjunction with AHA’s inquiry into the 2011
agreement, and that they were placing her on a two-to-four-week
administrative leave, effective immediately. She then told AHA’s
HR director that she was notifying him that she was acting as a
whistleblower under the NDAA. AHA terminated Fuerst on
March 10, 2017, citing “a loss of confidence in [her] ability to
provide legal counsel” on real estate matters.
B. Procedural History
On November 8, 2017, Fuerst filed a retaliation complaint
against Buell and AHA with HUD’s Office of the Inspector General
(“OIG”). On May 16, 2018, the OIG informed Fuerst that it had
determined that she did not qualify as a whistleblower because she
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12 Opinion of the Court 21-10285
was not a covered employee under the statute, and that it was
issuing her a right-to-sue letter.
Fuerst filed suit against AHA in the United States District
Court for the Northern District of Georgia on May 11, 2020,
alleging that she was terminated in retaliation for whistleblowing,
in violation of the NDAA. Specifically, Fuerst alleged that voicing
opposition to Buell’s negotiation tactics—which she viewed as
evidence of either gross mismanagement; an abuse of authority; or
a violation of a law, rule, or regulation—constituted protected
activity under § 4712.
AHA moved to dismiss Fuerst’s complaint for failure to state
a claim under Federal Rule of Civil Procedure 12(b)(6). It argued
that Fuerst’s disclosure to the IC was not protected under the
NDAA because it amounted to a “mere difference[] of opinion”
regarding Buell’s tactics, as evidenced by the fact that Fuerst had
not identified any other employees who shared her perspective.5
Additionally, AHA emphasized that Buell failed to identify a
particular contractual or statutory provision that Buell violated or
risked violating. Finally, AHA argued that the NDAA applies only
5 We note that AHA also contended that, even if Buell’s disclosure was
protected, Fuerst failed to disclose information to a “required person” under
the statute, only to the “alleged wrongdoers.” Fuerst, in response, noted that
the statutory text did not exclude alleged wrongdoers from persons to whom
a disclosure could be made. However, because we affirm the district court’s
grant of AHA’s motion to dismiss Buell’s complaint on other grounds, we
need not address this argument.
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21-10285 Opinion of the Court 13
to federal contracts, and that AHA’s contracts with Integral were
not federal contracts under the statute.
In response, Fuerst argued that she pleaded sufficient facts
to establish a reasonable belief that she made a protected disclosure
by reporting evidence of gross mismanagement; an abuse of
authority; or a violation of a law, rule, or regulation, and that the
statute did not require her to show that other employees agreed
with her position at the time. She also asserted that she had, in fact,
identified the HUD grant agreement that she believed AHA
violated. Finally, again pointing to the statutory text, Fuerst
explained that the NDAA covered disclosures relating to “a Federal
contract or grant,” and her disclosures implicated AHA’s grant
agreement with HUD.
On December 28, 2020, the district court granted AHA’s
motion to dismiss. The district court rested its decision on two
grounds: first, that the NDAA applies only to employees of federal
contractors, not federal grant recipients; and, second, that even if
Fuerst qualified for protection under the NDAA, her disclosures
were not protected because they did not rise above the level of a
“mere difference of opinion” and because she did not point to any
action which violated a federal contract or grant. Fuerst timely
appealed.
II. ANALYSIS
A. Standard of Review
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14 Opinion of the Court 21-10285
“We review
de novo the district court’s grant of a motion to
dismiss for failure to state a claim under [Federal Rule of Civil
Procedure 12(b)(6)], accepting the allegations in the complaint as
true and construing them in the light most favorable to the
plaintiff.”
Timson v. Sampson, 518 F.3d 870, 872 (11th Cir. 2008)
(per curiam). To survive a motion to dismiss, a “complaint need
only present sufficient facts, accepted as true, to ‘state a claim to
relief that is plausible on its face.’”
Renfroe v. Nationstar Mortg.,
LLC, 822 F.3d 1241, 1243–44 (11th Cir. 2016) (quoting
Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007)). Likewise, we
review
de novo a district court’s interpretation of statutory text.
See Pinares v. United Tech., 973 F.3d 1254, 1259 (11th Cir. 2020).
B. Scope of the NDAA
As an initial matter, Fuerst must demonstrate that she, as an
employee of a federal grant recipient, is an employee protected by
the NDAA. Based on the plain and unambiguous statutory text,
we conclude that the NDAA protects whistleblower employees of
all federal “grantee[s],” including, in this case, AHA.
Statutory interpretation starts, and ideally ends, with the
text.
See Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004). And “when
the statute’s language is plain, the sole function of the courts . . . is
to enforce it according to its terms.”
Id. (quotation omitted).
Granted, statutory language does not exist in a vacuum, and “[w]e
must interpret statutes ‘harmoniously,’ reconciling separate
sections so that they are compatible and not contradictory.”
In re
Shek, 947 F.3d 770, 777 (11th Cir. 2020) (quoting Antonin Scalia &
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21-10285 Opinion of the Court 15
Bryan Garner,
Reading Law: The Interpretation of Legal Texts 180
(2012)). Further, the “surplusage canon obliges us, whenever
possible, to disfavor an interpretation when that interpretation
would render a ‘clause, sentence, or word . . . superfluous, void, or
insignificant.’”
Id. (quoting
TRW Inc. v. Andrews, 534 U.S. 19, 31
(2001)).
See also Whole Woman’s Health v. Jackson, 142 S. Ct. 522,
536 n.4 (2021).
With that in mind, we turn to the provision of the NDAA at
issue in this case, § 4712(a), which, in relevant part, prohibits
certain entities receiving federal funds from retaliating against their
employees for reporting evidence of misconduct in certain
circumstances. Section 4712(a)(1) provides that:
(1) In general.—An employee of a contractor,
subcontractor, grantee, or subgrantee or personal
services contractor may not be discharged, demoted,
or otherwise discriminated against as a reprisal for
disclosing to a person or body described in paragraph
(2)6 information that the employee reasonably
6 Paragraph (2) of § 4712(a) lists the persons and bodies to whom a covered
employee may make a protected disclosure. Covered persons and bodies
include:
(A) A Member of Congress or a representative of a committee of
Congress.
(B) An Inspector General.
(C) The Government Accountability Office.
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16 Opinion of the Court 21-10285
believes is evidence of gross mismanagement of a
Federal contract or grant, a gross waste of Federal
funds, an abuse of authority relating to a Federal
contract or grant, a substantial and specific danger to
public health or safety, or a violation of law, rule, or
regulation related to a Federal contract (including the
competition for or negotiation of a contract) or grant.
41 U.S.C. § 4712(a)(1).
Without question, the district court was correct that § 4712
protects “employee[s]” of “contractor[s]” and “subcontractor[s]”
from being “discharged, demoted, or otherwise discriminated
against as a reprisal” for whistleblowing.
Id. But the district court
failed to appreciate that Congress did not stop there. Instead, the
enacted text of § 4712 also extends that protection to “employee[s]”
of “grantee[s],” “subgrantee[s],” and “personal services
contractor[s].” Accordingly, as the statute clearly covers federal
(D) A Federal employee responsible for contract or grant oversight or
management at the relevant agency.
(E) An authorized official of the Department of Justice or other law
enforcement agency.
(F) A court or grand jury.
(G) A management official or other employee of the
contractor, subcontractor, grantee, or subgrantee who has
the responsibility to investigate, discover, or address
misconduct.
41 U.S.C. § 4712(a)(2).
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21-10285 Opinion of the Court 17
grantees and because AHA is a federal grant recipient, employees
of AHA—including Fuerst—are covered by the provision.
Yet, the district court reached a different conclusion.
Looking to a different provision of the statute—41 U.S.C. § 4705
(“Protection of contractor employees from reprisal for disclosure
of certain information”)—which extends whistleblower
protections to employees of federal contractors only, the district
court relied on the similarity between the statutory titles to read
§ 4712 (“Enhancement of contractor protection from reprisal for
disclosure of certain information”) as a restatement of, rather than
an addition to, § 4705’s protections. In its analysis, because § 4705
defined a “[c]ontract” as “a contract awarded by the head of an
executive agency,” and a contractor as “a person awarded a
contract with an executive agency,” § 4712 must therefore apply
only to conduct between the federal government and its
contractors, not its grant recipients.
Fuerst v. Housing Authority
of City of Atlanta, Ga., 2020 WL 8299763, *4–6 (N.D. Ga. Dec. 28,
2020) (
citing 41 U.S.C. §§ 4705, 4712). In so doing, however, the
district court ignored the plain language of § 4712, which clearly
includes employees of federal grant recipients like Fuerst. Further,
to embrace the district court’s holding and construe the text to
limit whistleblower protections to private contractors would
necessarily render the statute’s “grantee,” “subgrantee,” and
“personal services contractor” language mere surplusage.
See In re
Shek, 947 F.3d at 777. Pursuant to the surplusage canon, we strive
to avoid such interpretations.
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Despite AHA’s request that we follow the lead of the district
court in giving effect to the statutory title of § 4712, federal courts
are not responsible for policing Congress’s consistent use of
headings throughout a large and complex act. Rather, “where, as
here, the [statutory] text is complicated and prolific, headings and
titles can do no more than indicate the provisions in a most general
manner.”
Lawson v. FMR LLC, 571 U.S. 429, 446–47 (2014)
(quotation omitted).7 Thus, to determine whether § 4705
constrains § 4712, we must look to the enacted text of those
statutes. Section 4705 provides that:
An employee of a
contractor may not be discharged,
demoted, or otherwise discriminated against as a
reprisal for disclosing to a Member of Congress or an
authorized official of an executive agency or the
Department of Justice information relating to a
substantial violation of law related to a
contract
(including the competition for, or negotiation of, a
contract).
41 U.S.C. § 4705(b) (emphasis added). In other words, § 4705 does
exactly what its title says: it enacts whistleblower protections for
employees of federal contractors, and
only federal contractors. In
contrast, § 4712 uses the terms “contractor, subcontractor,
grantee,
or subgrantee or personal services contractor . . . .” 41 U.S.C.
7 We note that, in
Lawson, the Supreme Court explicitly rejected a similar
argument about the role of statutory headings in determining the scope of
whistleblower protections in the Sarbanes-Oxley Act, 18 U.S.C. § 1514A.
Id.
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§ 4712(a)(1) (emphasis added). Moreover, while § 4705 focuses on
violations relating to federal contracts, § 4712 protects disclosures
relating both to “Federal contract[s]” and “grant[s].”
Id. Therefore,
§ 4712 clearly provides broader antiretaliation protections than its
title suggests. And as AHA is certainly a federal grantee, Fuerst falls
within the protection of the statute.
We also note that, by holding that § 4712 provides greater
whistleblower protections than § 4705, we reach a similar
conclusion to the Fifth Circuit, the only other Circuit Court to
consider the scope of § 4712. The panel in
Tex. Educ. Agency v.
U.S. Dep’t of Educ., held that § 4712(a)(1) “by its terms, applies to
any federal contract or grant and is not limited to a particular
appropriation or class of grant.” 992 F.3d 350, 354 (5th Cir. 2021).
We agree.
In contrast, AHA urges us to follow the same Colorado
district court case upon which the district court in this case relied,
Armstrong v. Arcanum Group Inc., 2017 WL 4236315 (D. Col.,
Sept. 25, 2017). But, like the district court here, the
Armstrong
court mistakenly used § 4705’s definitions of “contract” and
“contractor” to define the statutory text of § 4712 based on the
appearance of the term “contractor” in the latter’s title. Section
4705’s definitions could certainly bear on Congress’s use of the
same words in § 4712. But the mention of “contractor
protection[s]” in § 4712’s title cannot justify ignoring, or rendering
superfluous, the rest of a law properly enacted through
bicameralism and presentment.
See Lawson, 571 U.S. at 446–47;
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In re Shek, 947 F.3d at 777. Tellingly, AHA does not even attempt
to rebut Fuerst’s surplusage argument.
Under our Constitution, Congress writes the laws, not the
federal judiciary. We hold that the district court erred in
determining that the NDAA does not apply to employees of
grantees of federal funds.
C. Gross Mismanagement
To prevail on appeal, however, Fuerst must establish more
than the fact that she was an “employee” of an entity listed in
§ 4712(a)(1).
Rather, pursuant to the statute, she must also demonstrate
that she:
disclose[d] . . . information that [she]
reasonably
believe[d] [was] evidence of gross mismanagement of
a Federal contract or grant, a gross waste of Federal
funds, an abuse of authority relating to a Federal
contract or grant, a substantial and specific danger to
public health or safety, or a violation of law, rule, or
regulation related to a Federal contract (including the
competition for or negotiation of a contract) or grant.
41 U.S.C. § 4712(a)(1) (emphasis added).
The district court, relying on the Federal Circuit’s decision
in
White v. Dep’t of the Air Force, 391 F.3d 1377, 1381 (Fed. Cir.
2004), found that Fuerst’s allegations failed to show a reasonable
belief of gross mismanagement because they were merely
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“differences of opinion” which failed to identify any actual
violations of the HUD grant’s terms.
In Fuerst’s view, the statutory language requires her to show
only that she
reasonably believed that her disclosure provided
evidence of gross mismanagement, an abuse of authority, or a
violation of a law, rule, or regulation, not that an actual violation
occurred.8 According to Fuerst, her good faith belief based on
decades of experience in housing development and finance, that
forcing Integral to renegotiate would necessarily result in AHA’s
failure to qualify for LIHTCs, and, as a result, prevent it from
complying with the HUD grant’s closing requirement, was a
“disclos[ure] [of] . . . information that [she] reasonably believe[d]
was evidence of gross mismanagement of a Federal . . . grant.”
See
41 U.S.C. § 4712(a)(1).
While we agree with Fuerst that § 4712(a)(1) requires only a
disclosure that a covered person “reasonably believes” indicates
gross mismanagement, an abuse of authority, or a violation of a
law, rule, or regulation, we nevertheless conclude that Fuerst’s
belief was not objectively reasonable as a matter of law.
8 Fuerst further maintains that, despite not being required to identify any
actual violation, in her complaint she identified several actions taken by Buell
that violated HUD grant conditions. Specifically, she points to her comments
to Buell, AHA’s general counsel, and AHA’s HR director that Buell’s actions
could cause AHA to default on timely delivery of new affordable housing,
which, in turn, could allow HUD to revoke a $30 million grant to AHA.
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Starting, as always, with the plain text of the statute, § 4712
protects disclosures of “information that the employee reasonably
believes is evidence of gross mismanagement of a Federal contract
or grant.” 41 U.S.C. § 4712(a)(1). Although, as noted by the district
court, reporting an actual rule violation could establish a
reasonable belief under § 4712(a)(1), the statutory language clearly
does not require Fuerst, or any plaintiff, to prove that one
occurred. Instead, Fuerst only needs to show that she had (1) a
reasonable belief that the information she disclosed (2) was
evidence of gross mismanagement.
Hence, to ascertain whether Fuerst was entitled to § 4712’s
protection, we must first determine the meaning of “reasonable
belief,” “gross mismanagement,” and a “reasonable belief of gross
mismanagement”—terms not defined by the statute. To that end,
we note that § 4712(a)(1) mirrors the text of another federal
whistleblower law’s anti-retaliation provision—5 U.S.C.
§ 2302(b)(8) of the Whistleblower Protection Act of 1989 (“WPA”),
5 U.S.C. § 1201,
et seq., Pub. L. 101-12, and caselaw interpreting the
WPA provides analytical guidance.
Section 2302(b)(8) of the WPA prohibits federal agencies
from retaliating against employees for disclosing wrongdoing.
According to its text, a federal employer may not:
take or fail to take, or threaten to take or fail to take,
a personnel action with respect to any employee or
applicant for employment because of . . . any
disclosure of information . . . which the employee
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21-10285 Opinion of the Court 23
reasonably believes evidences – any violation of any
law, rule, or regulation or . . . gross mismanagement,
a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or
safety . . . .
5 U.S.C. § 2302(b)(8) (emphasis added).9
The Federal Circuit defined a “reasonable belief,” and later
a “reasonable belief” of “gross mismanagement,” as used in
§ 2302(b)(8) of the WPA in two cases,
Lachance v. White and
9 Meanwhile, Congress extended substantially similar whistleblower
protections to certain non-federal employees through the NDAA, § 4712.
Again, that statute, in relevant part, provides that any covered employee:
[M]ay not be discharged, demoted, or otherwise discriminated
against as a reprisal for disclosing . . . information that the
employee
reasonably believes is evidence of gross
mismanagement . . . a gross waste of Federal funds, an abuse
of authority . . . a substantial and specific danger to public
health or safety, or a violation of a law, rule, or regulation . . .
.
41 U.S.C. § 4712(a)(1) (emphasis added).
Accordingly, because § 4712(a)(1) of the NDAA and § 2302(b)(8) of the
WPA both deal with whistleblower protections relating to the misuse of
federal funds, we interpret them together.
See United States v. Tigua, 963 F.3d
1138, 1143 (11th Cir. 2020) (
quoting Scalia & Garner,
Reading Law § 39, at 252)
(“Statutes
in pari materia are to be interpreted together, as though they were
one law”);
Gallardo by and through Vassallo v. Dudek, 963 F.3d 1167, 1178
n.15 (11th Cir. 2020).
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24 Opinion of the Court 21-10285
White v. Dep’t of Air Force.10 First, in
Lachance v. White,
canvassing the meaning of a “reasonable belief” in other legal
contexts, the Federal Circuit concluded that:
[T]he proper test is . . . [whether] a disinterested
observer with knowledge of the essential facts known
to and readily ascertainable by the employee
reasonably conclude that the actions of the
government evidence gross mismanagement? A
purely subjective perspective of an employee is not
sufficient even if shared by other employees.
174 F.3d 1378, 1381 (Fed. Cir. 1999) (“
White I”). And, as the
Federal Circuit later clarified, again in the § 2302(b)(8) context,
“debatable differences of opinion concerning policy matters are not
protected disclosures.”
White v. Dep’t of Air Force, 391 F.3d 1377,
1382 (Fed. Cir. 2004) (“
White II”). “Rather, . . . to constitute ‘gross
mismanagement,’ an employee must disclose such serious errors
. . . that a conclusion . . . [of] err[or] is not debatable among
reasonable people.”
Id.
10 It is possible that we have never interpreted this statutory language because,
in 1982, seven years before Congress first enacted the WPA, it vested exclusive
appellate jurisdiction over most whistleblower complaints in the Federal
Circuit, where it remained until 2012.
See 5 U.S.C. § 7703(b) (1982), Pub. L.
97-164; 5 U.S.C. § 7703(b) (2012), Pub. L. 112-199.
See also Kelliher v.
Veneman, 313 F.3d 1270, 1274 (11th Cir. 2002) (explaining that, during that
time period, the Eleventh Circuit had jurisdiction only over petitions of
“mixed” cases involving whistleblower and discrimination claims).
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21-10285 Opinion of the Court 25
We agree with the Federal Circuit’s analysis. And, given the
similarity between § 4712(a)(1)’s language and § 2302(b)(8), we
adopt the Federal Circuit’s interpretation of “reasonable belief” and
a “reasonable belief” of “gross mismanagement” for § 4712(a)(1)
purposes.
See Tigua, 963 F.3d at 1143;
Dudek, 963 F.3d at 1178
n.15.
Accordingly, § 4712(a) requires that an eligible person
“reasonably believe[]” that her disclosure evidences gross
mismanagement.
See 41 U.S.C. § 4712(a)(1). Likewise, by
protecting disclosures pertaining to “gross mismanagement,”
rather than ordinary mismanagement, Congress limited
whistleblower protection to disclosures about particularly
egregious conduct, not run-of-the-mill policy disputes between
managers and employees.
See “Gross,” “Mismanage[ment],”
Webster’s New World College Dictionary, 640, 935 (5th ed. 2014)
(defining “gross” as “glaring; flagrant; very bad,” and “mismanage”
as “to manage or administer badly or dishonestly”);
White II, 391
F.3d at 1382 (“[D]ebatable differences of opinion concerning policy
matters are not protected disclosures.”). In sum, section 4712(a)
thus asks whether an employee has an objectively reasonable belief
that the disclosed information evidenced “such serious errors . . .
that a conclusion . . . [of] err[or] is not debatable among”
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26 Opinion of the Court 21-10285
objectively reasonable persons with knowledge of the essential
facts. 11
White II, 391 F.3d at 1382.
Applying this clear articulation of § 4712’s “gross
mismanagement” prong and “reasonable belief” standard to
Fuerst’s complaint, we hold that Fuerst failed to establish a
reasonable belief that her disclosure evidenced gross
mismanagement. Fuerst is correct that the district court did not
explicitly analyze whether her belief was reasonable. Instead, the
district court proceeded to apply the Federal Circuit’s “gross
mismanagement” test and found that Fuerst’s allegations failed to
satisfy it. [Doc. 48 at 17] Though this may seem like putting the
cart before the horse, it was not erroneous. After all, to
“reasonably believe[]” that her disclosure evidenced gross
mismanagement, Fuerst needed to interpret “gross
11 Fuerst argues that the district court improperly required her to show proof
that other employees contemporaneously agreed with her position. It did not.
Regardless, the subjective views of other employees would not matter.
Hence, we agree with the Federal Circuit that “[a] purely subjective
perspective of an employee is not sufficient even if shared by other
employees.”
White I, 174 F.3d at 1381. By the same token, we clarify that
district courts should not treat evidence that other employees disagreed with
a whistleblower as establishing that an objectively reasonable person would
not reach the whistleblower’s conclusion. Especially in a retaliation context,
carrying with it the implied threat of reprisal, a colleague’s disagreement may
simply reflect a desire for self-preservation. We do not consider whether
agreement or disagreement by an employee owing legal duties to a
corporation,
e.g., corporate counsel, rather than management, has probative
value in an NDAA retaliation suit.
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mismanagement” correctly. Clearly, Fuerst disagreed with Buell
about how to deploy federal grant funds. But to obtain protection
under § 4712, she needed to demonstrate that she reasonably
believed that she disclosed evidence of “gross mismanagement.”
This requirement means that Fuerst must show that a
“disinterested observer with knowledge of the essential facts
known to and readily ascertainable by [Fuerst] [would] reasonably
conclude that the actions of . . . [Buell] evidence” violations flagrant
enough to obviate disagreement.
See White I, 174 F.3d at 1381.
Returning to Fuerst’s complaint, she generally alleged that
Buell’s plan to force Integral to renegotiate its agreement with
AHA by refusing to close would threaten AHA’s ability to qualify
for LIHTCs, which, in turn, would prevent it from closing on or
before March 28, 2017, the date specified in the HUD grant
agreement. But, at the time, Buell’s plan was just that—a plan.
Fuerst did not allege that Buell could unilaterally force AHA to take
action with respect to its agreements with Integral, or that the
other members of the IC were on board. Instead, Fuerst, allegedly
familiar with the IC’s role, challenged the course of action for
which Buell sought IC approval. Because the challenged action
was not final, and Fuerst knew that the decision was not final, in
turn, she necessarily knew that her disclosure was premature, too.
Moreover, at least at the time that Fuerst made her
disclosures, she simply could not know how Integral would
ultimately respond: Fuerst was not even fired until March 10, 2017,
weeks before the closing deadline mandated by the HUD grant
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28 Opinion of the Court 21-10285
agreement. Hence, she could not know whether AHA would
refuse to close on its agreements with Integral, let alone that, in
response to AHA’s sudden obstinance, Integral would ultimately
walk away rather than renegotiate. Indeed, even if Integral refused
to renegotiate at first, it had ample time to change its mind. Thus,
even if Buell and the IC followed through, those hardball tactics
could just as easily have led to AHA and Integral reaching an accord
prior to the LIHTC deadlines. In that event, timely closings for the
LIHTCs would completely ameliorate any perceived risk to the
HUD grant funds.
Meanwhile, Fuerst does not even attempt to show how the
mere act of renegotiating with Integral, without missing deadlines
and thereby jeopardizing LIHTCs or the HUD grant, would lead
to a “conclusion . . . [of] err[or] [that] is not debatable among”
objectively reasonable persons with knowledge of the essential
facts.
White II, 391 F.3d at 1382. In fact, in her complaint, Fuerst
concedes that “there was no harm in seeking to renegotiate a deal.”
We agree: at the point of Fuerst’s disclosure, Buell’s negotiation
tactic simply had not yet matured into anything resembling “gross
mismanagement.”
Section 4712 protects whistleblowers who reasonably
believe that they are reporting evidence of gross mismanagement.
But § 4712 does not permit an employee to blow the whistle
before
the foul. Fuerst fell short of establishing a reasonable belief that
her disclosure evidenced gross mismanagement, or, really,
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21-10285 Opinion of the Court 29
anything more than a dispute with her boss about negotiation
tactics.
D. Abuse of Authority
In addition to asserting that Buell’s actions constituted
“gross mismanagement,” Fuerst also insisted that they amounted
to an abuse of authority pursuant to § 4712, defined as “an arbitrary
and capricious exercise of authority that is inconsistent with the
mission of the executive agency concerned or the successful
performance of a contract or grant of such agency.” 41 U.S.C.
4712(g). The district court, however, failed to consider whether
Fuerst’s complaint could survive a motion to dismiss under this
prong of the statute.
Federal Rule of Civil Procedure 8(a) provides the standards
for most civil complaints in federal court. Fed. R. Civ. P. 8. Rule
8(a)(2) requires that a plaintiff provide the court and opposing party
with “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Each
allegation must be simple, concise, and direct,” but “[n]o technical
form is required.” Fed. R. Civ. P. 8(d)(1). Rule 8 “does not require
‘detailed factual allegations,’ but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.”
Chapparo v. Carnival Corp., 693 F.3d 1337, 1335 (11th Cir. 2012)
(quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Accordingly,
where a plaintiff has pleaded “facts sufficient to show that her claim
has substantive plausibility,” the federal rules “do not countenance
dismissal of a complaint for imperfect statement of the legal theory
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30 Opinion of the Court 21-10285
supporting the claim asserted.”
Johnson v. City of Shelby, 574 U.S.
10, 11 (2014) (per curiam) (quotations omitted).
See also Marsteller
for Use and Benefit of United States v. Tilton, 880 F.3d 1302, 1314
n.23 (11th Cir. 2018).
Fuerst’s complaint, which explicitly referred to Buell and
AHA’s actions as “an abuse of authority”—and even described
them as “arbitrary and capricious” and “inconsistent with AHA’s
successful performance under HUD grant agreements”—satisfied
Rule 8(a)(2). Hence, the district court’s omission of that claim in
its ruling on AHA’s motion to dismiss, without explanation, was
clearly erroneous.
But we may affirm the district court’s judgment on any
ground within the record.
See Jackson v. Bank of Am., N.A., 898
F.3d 1348, 1356 (11th Cir. 2018). To that end, we hold that Fuerst
failed to establish that she had a reasonable belief that Buell’s
actions constituted an “abuse of authority” for the same reasons
that Fuerst cannot establish a reasonable belief that her disclosure
evidenced “gross mismanagement.” Remember, Fuerst’s
assumption that Integral would refuse to acquiesce to any of Buell’s
new terms is, itself, a key component of Fuerst’s claim that
renegotiation would prevent the parties from closing on their
LIHTCs in compliance with the HUD grant requirements. But, at
the time of her disclosure, Fuerst was an attorney, not a fortune
teller. Hence, because Fuerst cannot demonstrate how Buell’s
proposed renegotiation tactic, independent of Integral’s
prospective actions, would be “inconsistent” with AHA’s mission
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21-10285 Opinion of the Court 31
of providing affordable housing. In effect, by failing to plead more
than mere speculation that Buell’s actions
could result in a parade
of horribles, Fuerst’s claim also fails. Accordingly, we affirm the
district court’s dismissal of Fuerst’s complaint.
E. Violation of Law, Rule, or Regulation
Although Fuerst admits that she never pleaded that her
disclosures constituted evidence of a “violation of law, rule, or
regulation” in proceedings below, she maintains that, due to the
lenient Rule 8 pleading standards, the district court should have
asked whether she “reasonably believe[d]” her disclosures were
“evidence of . . . a violation of [a] law, rule, or regulation related to
a Federal . . . grant,” nevertheless. 41 U.S.C. § 4712(a)(1). As noted
earlier, the district court concluded its analysis at “gross
mismanagement,” instead.
Without question, in her initial complaint, Fuerst asserted a
“violation of [a] law, rule, or regulation” claim: she warned the IC
members that without a timely closing, Integral and AHA would
lose their LIHTCs, and potentially be barred from applying for
them in the future, which, in turn, could threaten AHA’s HUD
grant. But Fuerst failed to establish a reasonable belief of a
“violation of a law, rule, or regulation” in relation to a federal grant
for the same reasons that doom her “gross mismanagement” and
“abuse of authority” claims: she neglected to proffer any evidence
establishing that, as a result of Buell’s actions or otherwise, AHA
violated any law, rule, or regulation. Consequently, we affirm the
district court’s dismissal of Fuerst’s complaint.
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32 Opinion of the Court 21-10285
III. CONCLUSION
When Congress and the President enacted § 4712 of the
NDAA, they extended its protections to employees of federal
grantees, not just federal contractors. Accordingly, we now vacate
the district court’s holding that employees like Fuerst could not
qualify for whistleblower protections.
However, we affirm the district court because Fuerst
nevertheless failed to establish a reasonable belief that her
disclosure evidenced “gross mismanagement,” an “abuse of
authority,” or a violation of a “law, rule, or regulation” pertaining
to a federal grant. Accordingly, Fuerst failed to state a claim upon
which relief can be granted.
AFFIRMED.
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