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Protecting Whistleblowers since 1977

Retroactive Application of the WPEA? Two Members of Congress, GAP and 97 NGOs Team Up for First Test of the New Rights

Tom Devine and Shanna Devine, March 08, 2013

A significant test case currently stands before the Merit System Protection Board (MSPB) that will determine whether or not cases pending when the Whistleblower Protection Enhancement Act (WPEA) was passed will be reinforced by rights under the new law.

Congress’ intent was made clear in congressional committee reports and Congressman Todd Platts' (R-PA) floor speech at enactment: the WPEA is a clarifying statute to the original Whistleblower Protection Act (WPA), and does not require statutory language for retroactive application to pending cases. This was the primary argument in an amicus curiae, or “friend of the court,” brief submitted this week to the MSPB in Thomas Day v. Department of Homeland Security by two Members of Congress, GAP and four otheramici representing 97 NGOs. The brief also argues that retroactivity is necessary under Supreme Court precedent, because protecting whistleblowers does not undermine the rights of anyone acting lawfully. The brief contends:

Clarification of an existing law does not require retroactive analysis of its potential ramifications and applies immediately upon enactment. The WPEA is a clarifying statute, in which Congress tightened statutory language and strengthened legislative history in a final attempt to attain compliance with the same legal rights it had intended to enact all along. It has had to legislate repeatedly, because the U.S. Federal Circuit Court of Appeals (“Federal Circuit”) created loopholes in whistleblower protection that Congress did not include in statutory language and repeatedly explained that it did not intend.

The Office of Special Counsel (OSC) also submitted an amicus curiae brief to the Board on WPEA retroactivity. Special Counsel Carolyn Lerner, also contending that it is a clarifying statute, emphasized: “For too long, OSC has been handcuffed by court decisions that limited protections under the WPA. Congress made clear that these loopholes were contrary to the plain meaning and intent of the WPA.”

The Board also must determine two other contexts for “prospective” WPEA application to cases filed after the Act’s passage:

  1. Do the new rights apply when the whistleblowing and personnel actions were prior to passage, but the lawsuit was filed after?
  2. Do the new rights apply when the whistleblowing was prior to enactment, but the personnel action and lawsuit occur after? In both instances, the amici argued that the case is even more overwhelming for the WPEA to govern results.

The test case involves former Coast Guard employee Thomas Day, who challenged illegal reimbursement payments to a contractor. After blowing the whistle, Day had his duties reduced, and was partially reassigned from his specialty of contract oversight for the Coast Guard. The government has argued, and an Administrative Judge tentatively agreed, that the Huffman loophole denies Day WPA rights for disclosures to:

 •            coworkers,

 •            a supervisor who agreed with him but did not have the authority to take corrective action, and

 •            possibly the wrongdoer (!)

when Day's disclosure was distributed through the chain-of-command. Ironically, Day had led a whistleblower coalition that successfully campaigned for passage of 1994 WPA amendments creating rights that the Federal Circuit judicially canceled in Huffman.

Amici filing the brief do not think this is a close question. Legislative history could not have been clearer had it been spelled out in the statute: the WPEA is intended to apply retroactively. The Senate Committee report stated:

This section states the Act would take effect 30 days after the date of enactment.
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.

Congressman Platts gave a floor speech trumpeting the Senate’s mandate: “[I]t must be understood that those whistleblowers who have been waiting for this bill to be enacted are protected by its provisions.”

The brief concludes:

The Whistleblower Protection Enhancement Act was enacted unanimously to eliminate loopholes and other barriers that have prevented the law from providing protection when unanimously intended and unanimously-reaffirmed all along. For the reasons stated above, the Board should respect clear, repeatedly-expressed congressional intent. There is no discretion for any new loopholes that would deny the WPEA’s authority, prospective or retroactive.

Indeed, the MSPB would be doing the public and brave civil servants – who risk their careers to disclose wrongdoing – a great disservice by not applying the WPEA as congress intended.

Information about the Day case and the WPEA may be found on the Board’s Web site

Tom Devine is Legal Director and Shanna Devine is Legislative Campaign Coordinator & Investigator for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.