Whistleblowers: Start Your Engines?
by Natania Davis
Interlocutory Appeal of Day v. DHS and the Board's Plans to Dismiss Without Prejudice Certain Whistleblower Cases During the Pendency of the Board's Decision in Day
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:
The Committee expects and intends that the 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. Such applications is expected and appropriate because the legislation generally corrects erroneous decisions by the MSPB and the courts; removes and compensates for burdens that were wrongfully imposed on individual whistleblowers exercising their rights in the public interest; and improves the rules of administrative and judicial procedure and jurisdiction applicable to the vindication of whistleblowers' rights.
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:
To the extent legislative history provides any insight, congressional statements concerning the WPEA do not provide clear guidance either in favor of or against retroactive enforcement of the Act. While making a law retroactive may pose significant political challenges, the words Congress must use to create a retroactive statute are easy to draft. Since those words are missing from the current law, the Board cannot ignore Congress' chosen language and omission of the words that would signal retroactivity. Finally, the VA concludes its amicus brief with a discussion of potential fiscal problems and unintended consequences if the WPEA is enforced retroactively.
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
Interlocutory Appeal of King v. Dept. of Air Force
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.