NELA Amicus Brief: Day v. Department of Homeland Security (MSPB)

Posted By: Rebecca Hamburg Cappy March 04, 2013 12:55 pm
Posted In: NELA Amicus Briefs
Tags/Keywords:
Topic : Whistleblower  Agencies : MSPB  Admin : Amicus

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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. At issue in this case 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. The issue for Mr. Day was whether the WPEA definition applied to his July 2010 disclosures, or if the pre-WPEA Huffman standard applied. If the Huffman standard applies, Mr. Day’s whistleblower reprisal claim could likely be dismissed; if Section 101 of the WPEA applies, Mr. Day’s claim could then 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 Hoffman 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 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. We also note that giving retroactive effect to Section 101 furthers the remedial purpose of federal whistleblower protection statues.

Authors: Erik D. Snyder, Richard R. Renner, Joseph V. Kaplan, Edward H. Passman and Andrew J. Perlmutter

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