On February 28, 2013, NELA filed an amicus brief urging the Merit Systems Protection Board (MSPB) to give retroactive effect to provisions of the Whistleblower Protection Enhancement Act (WPEA) in Day v. Dept. of Homeland Security, MSPB Docket No. DC-1221-12-0528-W-1. Mr. Day, a Coast Guard civilian employee, allegedly suffered retaliation after blowing the whistle in July 2010 on impropriety in an aircraft procurement contract. Mr. Day reported his concerns to his supervisor, and was acting within the scope of his normal duties. After suffering reprisal, Mr. Day filed a whistleblower reprisal complaint with the Office of Special Counsel (OSC), and then filed an Independent Right of Act (IRA) appeal of that complaint with the MSPB. At issue in Day was whether provisions of the WPEA which clarified the definition of protected whistleblowing applied retroactively to Mr. Day’s July 2010 disclosures. Section 101 of the WPEA reversed prior decisions by the MSPB and the U.S. Court of Appeals for the Federal Circuit (in particular, Huffman v. Office of Personnel Management, 263 F.3d 1341 (Fed.Cir. 2001)) to exclude disclosures made to an employee’s supervisor and disclosures made by employees within the scope of their normal duties from whistleblower reprisal protection. If the pre-WPEA Huffman standard applies to Mr. Day’s case, his whistleblower reprisal claim could likely be dismissed; if, instead, Section 101 of the WPEA applies, Mr. Day’s claim could likely proceed to hearing. An MSPB Administrative Judge applied the Huffman standard, but certified the case for interlocutory appeal to the MSPB on the question of whether the WPEA’s provisions should apply retroactively.
Our brief argues that Section 101 of the WPEA should apply retroactively, as the WPEA merely clarifies and restores the original statutory definition of protected whistleblowing which had been artificially narrowed by the MSPB and the Federal Circuit under Huffman and related cases. 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 that do not create new rights or remedial procedures, but instead clarify Congress’ intent about how the preexisting statutory definition of protected whistleblowing is to be applied and construed. We also note that giving retroactive effect to Section 101 furthers the remedial purpose of federal whistleblower protection statues.
We thank our authors Erik D. Snyder, former NELA Executive Board member Richard R. Renner, and NELA members Joseph V. Kaplan, Edward H. Passman and Andrew J. Perlmutter for their excellent work on the brief, as well as Elaine Fitch and George Chuzi for their invaluable contributions. NELA Program Director Rebecca Hamburg Cappy also assisted on the brief. You may review our amicus brief in the Day case on The NELA Exchange.