The MSPB recently sought amicus briefs in the matter of Day v. DHS, SF-1221-12-0528-W-1, which is currently pending before the Board on interlocutory appeal. To be decided is the retroactive effect, if any, of the Whistleblower Protection Enhancement Act of 2012 to whistleblower cases pending before the Board when the WPEA was enacted. "Of particular relevance in Day is the question of the retroactive effect of section 101(b)(2)(B) of the WPEA, which provides in relevant part that a disclosure made to an alleged wrongdoer or during an employee's normal course of duties is not excluded from protection against reprisal under 5 U.S.C. 2302(b)(8)." 78 Fed. Reg. 9431 (Feb. 8 2013).

While the Day interlocutory appeal awaits decision, appellants and agencies are wondering which version of the Whistleblower Protection laws should be applied to whistleblower cases currently pending before the Board. In response to a FOIA request, MSPB Chairman Grundmann released a December 18, 2012, internal e-mail sent by Michael Bogdanow (Legal Liaison, Office of Regional Operations) to the regional offices of the MPSB, directing that "until the Board provides some finality on the retroactivity question, we believe that most cases should be DWOP'd."

For the full text of the FOIA request and appeal click here

The Office of Special Counsel; the Government Accountability Project and Representatives Elijah Cummings and Jackie Speier (members of the US House of Representatives Committee on Oversight and Government Reform), among others; the Veterans Administration; and the National Employment Lawyers Association were among the amici filing briefs on this issue. We take a moment here to briefly review some of the more salient arguments.

OSC notes that "[t]he Senate Report explicitly states: '(T)he Act's provisions shall be applied in OSC, MSPB, and judicial proceedings initiated by or on behalf of a whistleblower and pending on or after that effective date (of enactment).'" S. Rep. No. 112-155. OSC further notes the statement of intent of the principal authors of the WPEA:

For the full text of the OSC brief click here

GAP, Two Members of Congress, and others note that the WPEA merely clarifies Congress' original intent in enacting the CSRA, the WPA of 1989, and the 1994 WPA amendments. "Clarification of an existing law does not require retroactive analysis of its potential ramifications and applies immediately upon enactment....[The WPEA] does not add new, materially significant substantive rights, liabilities or burdens to plaintiffs or defendants that were unanticipated or upset settled expectations."

For the full text of the GAP brief click here

NELA also argues that the "clarifying" nature of the WPEA. "Relying on Landgraf v. USI Film Products, 511 U.S. 244 (1994) and Scott v. Dept. of Justice and OPM, 69 M.S.P.R. 211 (1995), we argue that the MSPB has historically given retroactive effect to provisions like Section 101 of the WPEA which do not create new rights or remedial procedures, but instead clarify Congress' intent in how the preexisting statutory definition of protected whistleblowing is to be applied and construed."

For the full text of the NELA brief click here

VA, in its brief, is careful to note that "[w]hile the VA takes no position on this appellant's current appeal, it does offer this amicus brief in hopes that the matters discussed herein will help the Board in its determination." In arguing against retroactivity, the VA cautions:

VA also raised the routine objection on matters such as this, namely that if Congress wanted the WPEA to have retroactive effect it knows how to and could have written such a provision into the Act.

For the full text of the VA's brief click here

Yesterday, the MSPB issued a Notice of Opportunity to File Amicus Briefs in the matter of King v. Dept. of Air Force, currently pending before the Board on interlocutory appeal. The issue before the Board is the retroactive effect, if any, of the WPEA provision making compensatory damages available in whistleblower cases.

Briefs are due by April 12, 2013.

For the full text of the federal register notice click here.

For more on Whistleblower Protection Enhancement Act of 2013, get your copy of Dewey's newest publication A Guide to Whistleblower Protection Act and Whistleblower Protection Enhancement Act of 2012 by Fowler and Vitaro and A Guide to MSPB Law and Practice by Broida, coming soon.

MSPB-Related Decisions of Note

by Natania Davis

The Board discussed the effect of Kloeckner v. Solis, 133 S. Ct. 596 (2012), in Cunningham v. Dept. of Army, 2013 MSPB 7 ¶ 7 (Jan. 28, 2013): "In light of Kloeckner, we shall now provide notice of mixed-case appeal rights in all cases in which the appellant was affected by an action that he or she may appeal to the Board and alleges prohibited discrimination, regardless of whether we decide the claim of discrimination. In providing such notice of the option to file a civil action in district court, we would make no representation whether the district court will determine that the appellant has met the administrative exhaustion requirements for filing a civil action before that court. In the present case, we provide notice of non-mixed appeal rights. Although the appellant alleges that the agency's decision to terminate her appointment during her probationary period was based on disability discrimination, as fully explained above she does not have the right to appeal her probationary termination to the Board."

For more on mixed case procedures, see MSPB Case Summaries by Broida and Davis, A Guide to Federal Sector Equal Employment Law and Practice by Hadley, and Consolidated Federal Sector EEO Update by Vitaro, Goodfriend, and Gilbert.

On January 24, 2013, the Federal Circuit, in a per curiam order, vacated its decision in Berry v. Conyers, 692 F.3d 1223 (Fed. Cir. 2012), wherein the court reversed the MSPB's decision in Conyers v. Dept. of Defense, 115 MSPR 572 (2010), and held that Dept. of Navy v. Egan, 484 US 518 (1988), prohibits Board review of agency determinations relating to an employee's eligibility to occupy a "sensitive" position. Reinstating the appeals and granting petitions for rehearing by the MSPB, Conyers and Northover, the court will hear, en banc, arguments on the following issues:

Amicus briefs are also welcome by the Court.

For more discussion of security clearances, adverse actions and Board jurisdiction, see MSPB Charges & Penalties by Fowler and Vitaro, Security Clearance Law and Procedure by Newman, and Best of the Board by Broida.