First Ruling Applies Anti-Retaliation Rights to Pending Cases
Yesterday, the U.S. Merit Systems Protection Board (MSPB) backed an expansive application of last year’s Whistleblower Protection Enhancement Act (WPEA) in the law’s first significant test case. In Day v. Department of Homeland Security, a 2-1 Board decision applied WPEA anti-retaliation rights to pending cases. Board Member Mark Robbins dissented.The majority opinion – by Susan Grundmann and Anne Wagner – explained that the WPEA clarifies rights that Congress previously had enacted repeatedly. Therefore the application of the law toward pending cases neither changes expectations nor creates an unfair burden on agencies challenging whistleblower allegations. More specifically, the decision determines that the law’s protection applies to employees who make disclosures to their supervisors as part of their job duties.
Before last November’s passage of the WPEA by unanimous congressional approval, whistleblowers could not defend themselves against associated retaliation due to loopholes by the Federal Circuit Court of Appeals. GAP Legal Director Tom Devine commented:
This is a major victory for whistleblowers. We all should be grateful to the Merit Systems Protection Board majority for leadership in restoring credible whistleblower rights to pending challenges of retaliation, and not limiting the law’s protection to harassment that occurred after its passage.The ruling will have a crucial impact in numerous pending cases.
The ruling also means the WPEA sets precedent over newly-filed challenges to harassment that occurred while the bill's passage was delayed through senate holds for eight years.
In March, GAP filed an amicus brief – urging this specific ruling – on behalf of Representatives Elijah Cummings (D-Md) and Jackie Speier (D-Ca), the Liberty Coalition, Project on Government Oversight, Union of Concerned Scientists, Center for Financial Privacy and Human Rights, and WhistleWatch. In their respective capacities, all had been marathon advocates for WPEA passage. GAP expresses special appreciation to Thomas Schafbuch, who volunteered to act as lead counsel for the organization’s brief.
Dylan Blaylock is Communications Director for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.