1 

UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

______________________________

 ) 

BARBARA S. KING, ) 

APPELLANT, ) DOCKET NUMBER 

 ) DA-0752-09-0604-P-1 

v. ) 

 ) 

DEPARTMENT OF ) April 11, 2013 

AIR FORCE, ) 

 AGENCY ) ORAL ARGUMENT REQUESTED

_____________________________ )

BRIEF OF AMICUS CURIAE GOVERNMENT ACCOUNTABILITY PROJECT 

AND WHISTLEWATCH.ORG

The Government Accountability Project (GAP) is a non-partisan, non-profit public interest 

law firm specializing in legal advocacy on behalf of “whistleblowers” – government and corporate 

employees who expose illegality, gross waste and mismanagement; abuse of authority; substantial or 

specific dangers to public health and safety; or other institutional misconduct undermining the public 

interest. Since 1978 GAP has helped over 5,000 whistleblowers through representation or informal 

assistance; and been a leader through sharing expertise, drafting, testifying, advocacy, defense of, 

and/or oversight of implementation for all of America’s federal whistleblower laws that have been 

enacted during that period. Those statutes include the civil Service Reform Act of 1978, the 

Whistleblower Protection Act of 1989, 1994 amendments to the same law, and the Whistleblower 

Protection Enhancement Act. 

The Brown Center for Public Policy, also known as (a/k/a) Whistlewatch.org, is a Not for 

Profit, Public Benefit 501(c)(3) incorporated in 2011 in the State of California that engages in 
2 

advocacy, education, journalism and litigation on behalf of whistleblowers and tax payers. It is an 

advocate for the need to immediate and retroactive application of the WPEA to pending cases. 

WhistleWatch.org qualifies as a representative of the news media under 5 U.S.C. § 

552(a)(4)(A)(ii)(II) and is exempt from fees for Freedom of Information Act (FOIA) requests because 

we disclose information on government performance, oversight responsibilities and costs in the 

public interest. Further, Whistlewatch.org converts the information received and conducts 

independent research then publicizes distinct Internet publications and provides information to fellow 

colleagues in the public policy community including the Make It Safe Campaign & Coalition 

(MISC). We are a member affiliate of MISC that worked with Government Accountability Project 

and other good government groups for the passage of the Whistleblower Protection Enhancement Act 

(WPEA). 

 
3 

TABLE OF CONTENTS

1. Table of Contents.....................................................................page 3 

2. Index of Authority....................................................................page 4 

3. Opening Statement....................................................................page 5, 6 

4. Statement of the Issue & Position...................................................page 7, 8 

5. Legislative History.....................................................................page 9, 10 

6. Facts & Procedural History..........................................................page 10 

7. Argument...............................................................................page 11-16 

8. CONCLUSION .......................................................................page 17 

Addendum Exhibits A & B 
4 

INDEX OF AUTHORITTY

CASES:

Bohac v Department of Agriculture, 239 F. 3d 1334 (Federal Circuit 2001)................page 8, 15

United States v. Burke, 504 U.S. 229(1992).......................................................page 17

Day v. Department of Homeland Security, MSPB Docket # SF-1221-12-0528-W-1.......page 8 

Deisler v McKormick Aggregates Co., 54 F 3d 1074 (3rd Cir. 1995)........................ .page 15

Huffman v. Office of Personnel Management, 263 F.3d 1341 (Fed. Cir 2001)................page 8

Landgraf v. USI Film Products, 511 U.S. 244, (1994)..........................................page 18

STATUTES AND RELATED AUTHORITY:

Civil Service Reform Act of 1978 of 1978, Public Law 95-454..............................page 6

Notification and Federal Employee Antidiscrimination and 

Retaliation Act of 2002, Public Law 107–174...........................................page 6

Whistleblower Protection Act of 1989, Public Law 101-12 ...................................page 6

Whistleblower Protection Enhancement Act of 2012 Public Law 112-199 .................page 6

5 USC Section 1221, (g) (1) (A) (ii)..............................................................page 13,19 

5 U.S. C. 2302.......................................................................................page 6, 7 

ExecutiveOrder12674..............................................................................page 7 

 
5 

OPENING STATEMENT ON HISTORICAL REFORMS TO 

PROTECT FEDERAL WORKERS

During the early 1970’s, the United States government was controlled by partisan politics 

under the Nixon administration that manipulated federal workers into committing violations of law 

including civil and criminal acts. An abuse of authority within the Executive Branch threatened to 

destroy American Democracy. The Judiciary, the Legislature and Executive Branches were all 

subject to unchecked political influence resulting in an indifference to the rule of law. 

In 1974, the United States Supreme Court addressed the question of Executive Privilege by 

President Richard Nixon, ruling there would be no sanctuary for illegal acts committed by 

government officials. Nixon facing oncoming impeachment proceedings resigned. 30 years later we 

learned the true identity of a vital federal whistleblower.1

As it was in the 70’s, it is today, whistleblowers within the federal government perform legal 

duties to protect the public, disclosing fraud, waste, abuse, mismanagement and dangers to public 

health and safety that government officials often seek to bury, often under the death of the federal 

employees’ career. Federal whistleblowers continue to light a path to expose corruption within 

government and provide a beacon of oversight authority for industry. The American people owe 

government workers a debt of gratitude and have chosen to protect them by allowing their elected 

officials in Congress to pass a series of protectionist laws. 

In 1978, Congress made sweeping changes for federal workers through the Civil Service 

Reform Act. The Office of Personnel Management (OPM), the Merit System Protection Board 

 1 Mark Felt worked for the Federal Bureau of Investigations (FBI) during the Nixon 

Administration. 
6 

(MSPB) and the Federal Labor Relations Authority (FLRA) were created to ensure Constitutional 

rights for federal employees would be protected. The Office of Special Counsel (OSC), where 

whistleblowers may seek safe harbor for from retaliation was initially created as a subunit of MSPB. 

Now OSC is an independent investigative federal agency. 

These federal agencies have a mission to protect government workers from political influence, 

discrimination and whistleblower retaliation, enforcing the laws passed by Congress. These laws 

include the Whistleblower Protection Act (WPA) of 1989, the Notification and Federal Employee 

Antidiscrimination and Retaliation Act of 2002 (No Fear Act), and the Whistleblower Protection 

Enhancement Act (WPEA) of 2012. 

Public laws are the underpinnings of the foundational protections afforded individuals who 

carry out sacrosanct obligations of public service. “Public service is a public trust, requiring 

employees to place loyalty to the Constitution, the laws and ethical principles above private gain.” 

(Exhibit A) We cannot ask federal workers to honor that trust if doing so means they will be subject 

to unbridled emotional and financial harm. To by a legal duty obligate an employee to expose 

corruption and wrongdoing within the government or in their work performing industry oversight 

work but ask them to do so at their own peril is to revert to Nixon era mentality, devoid of ethical 

conduct. 

Employees of the federal government have long been denied a meaningful and just system of 

adjudication of employment law cases despite clear intent by Congress for over 30 years. Now is the 

time for the MSPB to send a resounding message to federal management. Unlawful acts of 

discrimination and whistleblower retaliation will no longer be tolerated. All federal agencies will act 

as model employers. Individuals who seek to violate any law, including those which protect federal 

service employees who protect the public and the tax payers’ money shall suffer the consequences. 

Tax payer waste to discriminate and retaliate against the employees of the people, shall cease. 
7 

STATEMENT OF POSITION

The Whistleblower Protection Enhancement Act (WPEA) must be applied retroactively with 

respect to rights and remedies. Not only is this necessary to provide the full protections that are badly 

needed by federal service whistleblowers, but based on the CSRA, the WPA and subsequent 

amendments coupled with the import of the No Fear Act, it is the clear intent of Congress to make the 

WPEA retroactive as to all pending cases, including those on appeal. Therefore, we stand on our 

previous sound reasoning and well articulated amicus brief arguments submitted to the Board for 

Day v. Department of Homeland Security, MSPB Docket Number SF-1221-12-0528-W-1 and add 

additional proof to show full damage recovery was always intended by Congress in order to fully 

compensate aggrieved parties for their losses. 

STATEMENT OF THE ISSUE

The issue before the Board is the retroactive application of the damages provision of the 

WPEA, signed into law on November 27, 2012. As specified, the issue of retroactive application of 

the Act is already before the Board in Day. More specifically, the issue is whether the Act and its 

clarified provisions applies to claims filed, cases in process and appeals pending or filed as of the 

effective date of the Act, December 28, 2012. 

In the instant action, the events giving rise to the claim by Appellant occurred before the 

declared effective date of the WPEA but when passage was imminent. Administrative Law Judge 

(AJ), Malouf, issued her decision finding that Agency had committed prohibited personnel practices 

and ordered damages to be paid to Appellant. This decision to order damages paid Appellant is 

consistent with provisions for damages already encompassed by the WPA and subsequent 

amendments. 
8 

Notably as instructed by the AJ, the Appellant filed her request for full damages on the same 

day the President signed the WPEA, November 27, 2012. However, in a starling turnabout, in 

February 2013, the AJ then questioned whether to afford Appellant all compensatory and 

consequential damages under the WPA or in doing so make it, a retroactive application of the WPEA. 

Meanwhile during the same period of time, another AJ overseeing the Day case sought 

whether to apply retroactive application of the WPEA under a previously overruled decision; 

Huffman v. Office of Personnel Management, 263 F.3d 1341 (Fed. Cir 2001).2

 Thus, within days of 

passage by Congress, signature by the President and enactment, pending cases at MSPB were already 

receiving inconsistent and disparate treatment. 

As articulated by the AJ in her March 6, 2013, Order and Certification for Interlocutory 

Appeal, the clarified damage section of the WPEA would have retroactive effect, not provided for in 

the language of the statute. In reaching her decision, the AJ relied on a legislative analysis of 

Congressional intent for the WPEA based on comments [or lack thereof] in the record. However, we 

contend that the AJ ignored the clear intent in the amendments to the WPA, specifically in 1994 and 

the declaration in the preamble of the WPEA that Congress once again intended to provide all 

reasonable and foreseeable damages to aggrieved parties and to reverse all erroneous decisions that 

misinterpreted legislative intent as in Huffman and other ill begotten progeny such as Bohac v. 

Department of Agriculture, 239 F. 3d 1334 (Federal Circuit 2001). 

 

2 It is unclear from the record in the instant action if the judge rejected Huffman or applied only one component of the 

WPEA retroactively while denying the same treatment to another section of the WPEA. 
9 

LEGISLATIVE LANGUAGE BACKGROUND & HISTORY

 The WPEA is explicitly declared by Congress to be clarifying.3

 Its purpose is thus to reinstate 

the protections that were designed to be afforded by the original WPA, including comprehensive 

remedies. The original remedies provided were intended to include all manner of damages that 

were a consequence of the retaliation visited upon the employee by the Agency. The distinction 

between compensatory and consequential damages that developed under the WPA was a by-product 

of several incorrect interpretations of the 1991 amendments to Title VII of the Equal Employment 

Opportunity (EEO) laws. Only select components of economic damages were allowed to be 

recovered according to the MSPB. 

The WPA was ultimately reduced to a hollow ringing bell that did not apply to disclosures 

made in the direct course of employment and a way to exclude damages for the emotional harm and 

other damages directly caused by the retaliation. Since the WPEA is declared to be a long overdue 

clarification of the WPA, it is presumptively retroactive on its face. An enhancement of an existing 

law cannot logically interpret any other way. 

 Many unsuccessful attempts were made to enact clarifying amendments to the WPA. 

Congress after Congress sponsored and promised to pass amendments similar for the new WPEA. 

From 2004 until 2010, every attempt to achieve final passage was sabotaged at the final step by the 

exercise of Senate holds and anonymous overrides at the last minute. While the delay in enacting the 

WPEA is tragic, the tragedy should not be compounded by limiting the application of the 

 

3 “To amend chapter 23 of title 5, United States Code, to clarify the disclosures of information protected from prohibited 

personnel practices, require a statement in non-disclosure policies, forms, and agreements that such policies, forms, and 

agreements conform with certain disclosure protections, provide certain authority for the Special Counsel, and for other 

purposes”. 
10 

clarifications to those who have endured the tortured application of the Act while trying to do the 

right thing. 

It is clear that the proposed amendments or clarifications are not new or novel, since the exact 

provisions were anticipated for well over a decade. The Board has the opportunity before it now to 

recognize what Congress made clear in the preamble to the WPEA. Specifically, the WPEA is an 

amendment to and a clarification of the WPA...

“To amend chapter 23 of title 5, United States Code, to clarify the disclosures of 

information protected from prohibited personnel practices, require a statement in nondisclosure policies, forms, and agreements that such policies, forms, and agreements 

conform with certain disclosure protections, provide certain authority for the Special 

Counsel, and for other purposes”. 

Given the plain language meaning, as applied the WPEA is Congressional intent to correct the 

law to override decisions that were wrongfully interpreted, decided and applied by the courts. Since 

the WPEA expressly provides that it is intended to clarify and correct the WPA, as a matter of 

legislative and contract interpretation it can’t be construed otherwise. Presumably Congress knew and 

understood that using the phrase “clarification” would produce the desired retroactive application 

based on well-developed law interpreting legislative enactments. 

FACTS AND PROCEDURAL HISTORY

The instant action involves a female veteran of the armed military forces who worked as a 

civilian federal service employee of the Air Force as the Sexual Assault Prevention & Response 

Program Manager, at Sheppard Air Force Base in Texas. The Plaintiff made protected whistleblower 

disclosures of a failed program that was not protecting victims. The protected disclosures included 

the brutal rapes of our military service members. The subject of which has led to numerous 
11 

investigations and class action lawsuits that shame the country. A movie titled The Invisible War4

speaks to the atrocities of being in a military culture where sexual harassment and sexual assault goes 

unchecked. Appellant’s work was to protect victims and take appropriate actions. Agency thwarted 

Appellant’s efforts to speak up and protect victims.

Rather than act on the protected disclosures to correct problems in the Program, Appellant 

became a victim of Agency management resistant to change. In the wake of the protected 

disclosures, Appellant was subject to sex and age discrimination and severe whistleblower retaliation 

including a stripping of her duties, a several grade level demotion and interference with her attempt to 

seek other employment in order to cover-up the wrongdoing. Appellant reported wrongdoing up the 

chain of command but no one was willing to protect her or the other victims. The sex scandal in the 

military has grown to epic proportion. 

The whistleblower disclosures were made during the normal course of work with the case 

spanning several years with Appellant having first sought protection at the OSC, to no avail. Then, 

the MSPB dismissed Appellant’s first appeal as premature, sending her off to the full Board, adding 

to the additional delay for relief. The Board eventually reversed and re-opened the appeal. 

During the long drawn out proceedings Appellant suffered significant emotional damages and 

financial harm, including the loss of a low rate Veteran Administration (VA) backed home loan 

because she was forced to move from one location to the next taking lesser paying jobs in order to 

feed her family. But for the discrimination and whistleblower retaliation none of this would have 

 

4 In 2010, 108,121 veterans screened positive for military sexual trauma, and 68,379 had at least one Veterans 

Health Administration outpatient visit for related conditions. Also in 2010, The Department of Defense processed 

reports of 3,198 new assaults but estimated the actual number of assaults to be closer to 19,000. However, these 

reports only resulted in convictions against 244 perpetrators. "Department of Defense Annual Report on Sexual 

Assault in the Military: Fiscal Year 2010." Department of Defense. Retrieved 2012-05-30 Source; Wikipedia. 
12 

happened to Appellant. The losses Appellant incurred are directly attributed to the prohibited 

personnel practices. Agency willfully prolonged Appellant’s pain and suffering. 

On October 3, 2012, Administrative Judge (AJ) Marie A. Malouf ruled in Appellant’s favor, 

thereby making her the prevailing party, finding against Air Force for prohibited personnel practices 

under 5 U.S.C. 2302. However, the decision was not allowed to be made public by the parties until 

November 7, 2012, when it became final. Less than one week later on November 13, 2012, Congress 

passed the WPEA, effectively making it the law of the land. President Obama signed the Bill on 

November 27, 2012. 30 days later the WPEA became “effective.” 

ARGUMENT

In the instant appeal, Judge Malouf rejected retroactive application of the WPEA as to 

Appellant’s entitlement to an award of compensatory and consequential damages. See, Summary of 

Conference Call on Damages, (Exhibit B). The reasoning of the AJ is confounding, since the point 

of the remedial statute is to make a prevailing party whole, and no worse off than if the confirmed 

violation of rights had not occurred. 

Appellant lost her VA low rate mortgage financed home, numerous professional opportunities 

and hundreds of thousands of dollars for blowing the whistle in order to protect sex assault victims. 

By virtue of Mr. King’s job title, she learned of the disclosures during the normal course of her work 

duties. The case was correctly decided in her favor contrary to Huffman. It appears the AJ 

recognized the retroactive application of the WPEA as to the Huffman issue, however, she did not 

consider the huge impact of financial damages on King. It is illogical for the AJ to apply one 

component of the new Act retroactively and deny retroactive effect to another provision concerning 

damages. 
13 

Moreover, the instant AJ decision was made knowing the Board was requesting amicus to be 

filed on the very issue involved in the instant action: retroactivity. It is extremely worrisome that the 

AJ, knowing that the WPEA was on its way to passage by Congress, would issue her ruling in the 

instant case so quickly when years had passed while the case languished at the MSPB. It would 

appear there could have been a conscious effort to prevent Appellant from being adequately 

compensated by quickly announcing the decision immediate before passage of the Act. The decision 

was made by an AJ who clearly knew the arduous journey Appellant traveled. 

It would be a travesty of justice to deny Appellant full recovery of all damages directly related 

to violations of law, rule and regulation and all attorney fees unless the AJ intends to create a lesser 

class of citizens, who report sexual discrimination and sexual assault by denying them equal rights 

protection for discrimination and whistleblower retaliation. A decision not in favor of providing all 

damages related would hold Appellant and other victims must finance their own litigation to assert 

due process of law and property rights with no substantial recovery for years of losses, while federal 

agencies violate laws with impunity, all funded by tax payers. 

CONGRESSIONAL INTENT SHOWS REPEATED ATTEMPTS TO ELIMINATE 

LOOPHOLES AND TO REAFFIRM REMEDIES PREVIOUSLY ESTABLISHED.

 

The relevant provision of H.R. 2970, which created consequential remedies in 1994, is 

consistent with amici’s position that specifying compensatory damages merely clarifies the law’s 

intent all along. Section 8 of the legislation provides: 

CORRECTIVE ACTIONS ORDERED BY THE MERIT SYSTEMS PROTECTION 

BOARD. 

(a) In General.--Section 1214 of title 5, United States Code, is amended by adding at the end 

thereof the following new subsection: 
14 

(g) If the board orders corrective action under this section, such corrective action may include-

- 

(1) that the individual be placed, as nearly as possible, in the position the individual would 

have been in had the prohibited personnel practice not occurred; and 

(2) reimbursement for attorney's fees, back pay and related benefits, medical costs incurred, 

travel expenses, and any other reasonable and foreseeable consequential damages.'. 

The WPEA solution on remedies is consistent with the umbrella provision in section 1 of the 

WPEA for rights. In both cases, the Federal Circuit or Board created specific loopholes that prevented 

the law from achieving the result Congress intended. In each case, Congress has offered sweeping 

umbrella language for its “no loopholes” intent, followed by specific illustrative examples. The only 

difference is that for remedies, Congress provided it in 1994 through subsection (g)(1) of HR 2970. 

For protected activity, Congress provided both general and specific “no loopholes” guidance in 

section 1. 

The point of compensatory damages is to perfect the make whole remedy – often the only way 

even to approach making an employee whole for emotional distress, pain or loss of reputation. In the 

only legislative history for the final text, House floor manager Frank McCloskey (D.-Ind.) explained 

that the bill had “expanded provisions” for consequential damages. 45 Cong. Rec. H11421 (daily ed., 

Oct. 7, 1994) 

The goal was to provide statutory authority previously lacking for particular types of expenses 

that require specific language. Consequential damages were included in the 1994 WPA amendments 

as additive authority to complete a make whole remedy, not substitute language to shrink it. 

Therefore, Congress closed loopholes and made clear their intent to provide for both compensatory 

and consequential damages. 
15 

CONSEQUENTIAL DAMAGES INCLUDES PAIN AND SUFFERING

 The AJ wrongly denied retroactive application of the damages clarification by finding the 

section created a new category or species of damages. The AJ erred in her analysis by ignoring the 

very broad definition of consequential damages and that the WPEA is a statutory cause of action, not 

one based in contract or tort. She adopted the same erroneous analysis as the court in Bohac v

Department of Agriculture, 239 F. 3d.1334 (Fed Cir 2001), which incorrectly held that consequential 

damages did not include compensatory damages because the action was more akin to a contract 

action and because the amendments to Title VII in 1991 used the term “compensatory damages.” 

 The definition of consequential damages can be broadly construed to include all damages that 

are reasonably foreseeable as a consequence of the wrongful act, whether caused by a breach of 

contract or by negligence. It is well settled that consequential damages includes compensatory 

damages as a sub species. Deisler v McKormick Aggregates Co., 54 F 3d 1074 (3rd Cir. 1995). In 

Deisler, the court noted that compensatory damages are included within the definition of 

consequential damages: 

While the district court correctly classified Deisler’s lost wages and damages for his pain and 

suffering as compensatory damages, an award of consequential damages would clearly 

encompass these compensatory damages. Compensatory damages serve to compensate for 

harm sustained by a party. Restatement (Second) of Torts § 903 (1977). Consequential

damages are merely compensatory damages for harm that “does not flow directly and 

immediately from the act of a party, but only some of the consequences or results of such act.” 

Black’s Law Dictionary 390 (6th ed. 1990).

 In almost every area of the law, consequential damages include all damages flowing from or 

caused by the wrongful conduct if foreseeable. This includes physical and emotional pain and 

suffering. See, Restatement of Torts, 2d, Section 903. Moreover, the Supreme Court in United States 

v. Burke, 504 U.S. 229, 240, 112 S.Ct. 1867, 119 L.Ed.2d 34 (1992) expressly recognized that 

consequential damages in the context of employment discrimination includes physical and emotional 
16 

pain and suffering. The concept of consequential damages as a separate and distinct category of 

purely economic damages is an aberration unique to the WPA. Bohac v Department of Agriculture, 

239 F. 3d.1334 (Fed Cir 2001). 

In Bohac, the court incorrectly determined that there was no well recognized definition of 

consequential damages despite the Restatement and other famous court decisions. It then incorrectly 

determined that wrongful discharge cases do not allow for an award of non-pecuniary emotional 

distress damages. Finally, it misconstrued the amendment to Title VII. Since that Act, Title VII, had 

already provided for back pay and equitable relief, the term “consequential damages” was a 

redundancy. Thus, the legislature, in amending Title VII, used the term “compensatory” damages, the 

emotional distress component of the broader category of consequential damages. The WPA, however, 

began with the term “consequential damages” as its baseline. This necessarily included pecuniary and 

non-pecuniary damages. The court in Bohac did not need to look any further than the decision in 

Burke to recognize that consequential damages include compensatory damages by definition. 

While it is clear the concept of “consequential damages” as a unique category of economic 

damages arose as a result of a misinterpretation of Title VII, consequential damages simply includes 

pain and suffering and emotional distress from a literalist perspective as well. They are a foreseeable 

consequence of the prohibited action. In almost all other jurisdictions, however, pain and suffering 

damages are included within the general category and scope of “consequential” damages when they 

result from wrongful conduct. 

The “unique” decision in Bohac, misinterpreting the WPA and improperly creating a sub 

species of damages that did not previously exist, tortures the definition of “consequential” to avoid 

making an award for the incredible emotional distress endured by a whistle blower. This aberration is 

corrected and clarified by the WPEA, Section 1221 (g) (1) (A) (ii). The damages clarification or 
17 

amendment simply harmonizes the common definition of consequential damages, as the broadest 

category of damages, as including compensatory damages as well as economic damages. Therefore, 

the damage amendment of the WPEA is also clarifying because Bohac was not carrying out with the 

intent of Congress as observed in the legislative history nor the WPA. 

A BRIDGE FOR THE MSPB TO CROSS WAS BUILT ON ANTI-DISCRIMINATION AND 

ANTI-WHISTLEBLOWER RETALIATION LAW IN THE NO FEAR ACT

 Perhaps it would be helpful for the MSPB to look at every single federal agency website for 

guidance on how to decide the King appeal. That guidance on whether to award full damages is right 

before its eyes. There is no need to search on high for a way to allow Agency to escape responsibility 

for the damage it caused Appellant. The Board need only look to a more recent law that protects 

federal service workers from heinous discrimination and whistleblower retaliation. That law is the 

No Fear Act. 

Passed over a decade ago the No Fear Act specifically articulated clear Congressional intent. 

The preamble reads: 

To require that Federal agencies be accountable for violations of antidiscrimination 

and whistleblower protection laws; to require that each Federal agency post quarterly 

on its public Web site, certain statistical data relating to Federal sector equal 

employment opportunity complaints filed with such agency; and for other purposes.

 

 In section 101, the text is resoundingly clear that federal agencies must not discriminate nor 

retaliate and if they do, they must pay for the consequences of their actions: 

Congress finds that 

—

(1) Federal agencies cannot be run effectively if those agencies practice or tolerate 

discrimination 

(8) requiring Federal agencies to pay for any discrimination or whistleblower judgment, 

award, or settlement should improve agency accountability with respect to 

discrimination and whistleblower laws. 
18 

 What could be clear regarding discrimination and whistleblower retaliation then the No Fear 

Act? Yet the MSPB has never applied the No Fear Act to a single case. As here, the MSPB prefers 

to impose upon Appellants an obligation to become lawyers by churning out references to “statutory 

retroactivity” and “ex post facto” and “clear statement rules” as defined in Landgraf v. USI Film 

Products, 511 U.S. 244 (1994). The AJ must want to dazzle legal minds and befuddle common folk 

with a diatribe, regurgitating the high court that “absent a clear statement from Congress that an 

amendment should apply retroactively, we presume that it applies on prospectively...” 

There is no need for the MSPB to find another loophole for federal agencies to fall through 

using Landgraf. It took advocates, whistleblowers and Congress more over 13 years to regain ground 

while whistleblowers lost their jobs while the MSPB obliterated their rights meanwhile, each year, 

every federal employee choked down meaningless training on the No Fear Act with tax payers 

spending billions paying the bill out of operating budgets appropriated by Congress for the public 

good. 

A bridge to strengthened whistleblower laws is waiting to be spanned. Its intent is in the clear 

statement of the No Fear Act. It’s time has come and the MSPB can apply it as a bridge to enforce 

anti-discrimination and anti-whistleblower retaliation laws. 

CONCLUSION

For all the foresaid reasons, the WPEA is a clarification of the WPA. Through its passage and 

subsequent enactment, it corrects a series of aberrant court decisions. The AJ incorrectly looked to the 

committee notes and ignored the express language of the WPA, Congressional original intent and the 

plain language wording of the WPEA while avoiding the No Fear Act. The Board must rule in favor 

of Appellant to award all costs and damages, compensatory and consequential. 
19 

There should be no doubt that Congress intended that the No Fear Act, the WPA and the 

WPEA would be the best protections for federal employees from discrimination and whistleblower 

retaliation, with full remedies. The WPEA is not creating anything new as to the damages portion. It 

is simply an enhancement Act that sought to reverse decades of wrong decisions by the MSPB and 

Federal Circuit that protected retaliating federal management verses honorable federal workers. 

Respectfully Submitted, 

Evelynn Brown, J.D., LL.M 

Chief Executive Officer 

Brown Center for Public Policy a/k/a Whistlewatch.org 

ebrown@whistlewatch.org 

 
20 

AMICUS CURIAE BRIEF 

GOVERNMENT ACCOUNTABILITY PROJECT & WHISTLEWATCH.ORG 

14 PRINCIPLES OF ETHICAL CONDUCT 

EXHIBIT A 

 
21 

Fourteen Principles of Ethical Conduct 

for Federal Employees 

(1) Public service is a public trust, requiring employees to place loyalty to the Constitution, the laws 

and ethical principles above private gain. 

(2) Employees shall not hold financial interests that conflict with the conscientious performance of 

duty. 

(3) Employees shall not engage in financial transactions using nonpublic Government information or 

allow the improper use of such information to further any private interest. 

(4) An employee shall not, except as permitted by the Standards of Ethical Conduct, solicit or accept 

any gift or other item of monetary value from any person or entity seeking official action from, doing 

business with, or conducting activities regulated by the employee's agency, or whose interests may be 

substantially affected by the performance or nonperformance of the employee's duties. 

(5) Employees shall put forth honest effort in the performance of their duties. 

(6) Employees shall not knowingly make unauthorized commitments or promises of any kind 

purporting to bind the Government. 

(7) Employees shall not use public office for private gain. 

(8) Employees shall act impartially and not give preferential treatment to any private organization or 

individual. 

(9) Employees shall protect and conserve Federal property and shall not use it for other than 

authorized activities. 

(10) Employees shall not engage in outside employment or activities, including seeking or 

negotiating for employment, that conflict with official Government duties and responsibilities. 

(11) Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities. 

(12) Employees shall satisfy in good faith their obligations as citizens, including all financial 

obligations, especially those -- such as Federal, State, or local taxes -- that are imposed by law. 

(13) Employees shall adhere to all laws and regulations that provide equal opportunity for all 

Americans regardless of race, color, religion, sex, national origin, age, or handicap. 

(14) Employees shall endeavor to avoid any actions creating the appearance that they are violating the 

law or the ethical standards set forth in the Standards of Ethical Conduct. Whether particular 

circumstances create an appearance that the law or these standards have been violated shall be 

determined from the perspective of a reasonable person with knowledge of the relevant facts. 
22 

AMICUS CURIAE BRIEF 

GOVERNMENT ACCOUNTABILITY PROJECT & WHISTLEWATCH.ORG 

SUMMARY OF CONFERENCE CALL ON DAMAGES 

EXHIBIT B 
UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

DALLAS REGIONAL OFFICE 

BARBARA R. KING, 

Appellant, 

v. 

DEPARTMENT OF THE AIR FORCE, 

Agency. 

DOCKET NUMBER 

DA-0752-09-0604-P-1 

DATE: February 11, 2013 

SUMMARY OF STATUS CONFERENCE 

On February 6, 2013, I held a telephonic conference with the appellant, her 

representative, and the agency’s representative. During the conference, the 

following matters were discussed. 

PENDING MATTERS – I identified the two proceedings before the 

Board:(1) a motion for consequential damages, MSPB Docket No. DA-0752-

0604-P-1; and (2) a motion for attorney fees, MSPB Docket No. DA-0752-0604-

A-1.1

REPRESENTATIVES - The appellant confirmed that Joseph Bird is 

representing her in both of the pending proceedings. The agency’s representative 

confirmed that Heather Masten, who had previously served as the agency’s 

representative, has moved to another agency and she is no longer representing the 

agency in either of these proceedings. 

SETTLEMENT – I encouraged the parties to explore settlement 

possibilities. I informed them that the Board retains the authority to enforce 

 

1 This summary relates only to the appellant’s motion for damages.
 

 

2 

compliance with a settlement agreement if it is made a part of the record, it 

appears that the agreement is legal on its face, it was freely reached by the 

parties, and they understand its terms. The parties will advise me if they want to 

participate in the Board’s Mediation Appeals Program or if they want the 

assistance of a settlement judge. 

ISSUES – The following issues are in dispute: 

A. Whether the appellant is entitled to an award of consequential 

damages. 

B. Whether the appellant is entitled to an award of compensatory 

damages. 

C. If the appellant is entitled to such damages,what is the proper 

amount of damages to be awarded. 

BURDEN OF PROOF – The appellant has the burden of proof on her claim 

for damages. She must prove both that she incurred the damages and that the 

damages were reasonable and foreseeable, i.e., causally related to the agency's 

reprisal against her. Johnston v. Department of the Treasury, 100 M.S.P.R. 78, 

¶ 13 (2005) (citing Carson v. Department of Energy, 92 M.S.P.R. 440, 447-48 

(2002), aff'd, 64 F. App'x 234 (Fed. Cir. 2003)). At the time the agency’s action 

occurred, the law provided that when the Board ordered corrective action 

pursuant to 5 U.S.C. § 1221(e), it could also order payment of back pay and 

related benefits, medical costs incurred, travel expenses, and any other reasonable 

and foreseeable consequential damages. 5 U.S.C. § 1221(g)(1)(A)(ii). 

Consequential damages under 5 U.S.C. § 1221(g) are limited to out-ofpocket costs and do not include non-pecuniary damages. The U.S. Court of 

Appeals for the Federal Circuit has found that Congress intended a narrow 

construction of ‘consequential damages’ and that the phrase ‘any other reasonable 

and foreseeable consequential [damages]’ should be read to cover only items 

similar in nature to the specific items listed in the statute, i.e., back pay and 

related benefits, medical costs incurred, and travel expenses. These items are all 

actual monetary losses or out-of-pocket expenses. See Bohac v. Department of 
 

 

3 

Agriculture, 239 F.3d 1334, 1343 (Fed. Cir. 2001). The purpose of an award of 

consequential damages is to make the prevailing employee financially whole and 

non-pecuniary damages such as pain and suffering or emotional distress are not 

included.Kinney v. Department of Agriculture, 82 M.S.P.R. 338, ¶ 5 (1999). 

Further, consequential damages do not include compensation for an employee’s 

own time spent pursuing her appeal, or reimbursement for leave (annual, sick or 

leave without pay) taken from work to pursue an appeal.Bohac, 239 F.3d at 1339-

43. 

In 2012, Congress amended the Whistleblower Protection Act (WPA) 

through passage of the Whistleblower Protection Enhancement Act of 2012 

(WPEA), which was signed into law on November 27, 2012. Section 202 of the 

WPEA, entitled “Effective Date,” provides as follows: “Except as otherwise 

provided in section 109, this Act shall take effect 30 days after the date of 

enactment of this Act.” Section 109, states that its provisions, governing 

“Prohibited Personnel Practices Affecting the Transportation Security 

Administration” (TSA), “shall take effect on the date of enactment of this 

section.” By operation of its express language, therefore, the Act’s provisions 

related to TSA appeals became effective on November 27, 2012, while all other 

provisions became effective on December 27, 2012. The Act is silent regarding 

any retroactive operation of its terms. 

The WPEA amended the provisions of the WPA relating to damages. 

Specifically, the amendments provide in relevant part: 

(g)(1)(A)If the Board orders corrective action under this section, 

such corrective action may include –

...

(ii) back pay2

 and related benefits, medical costs incurred, travel 

expenses, any other reasonable and foreseeable consequential 

 

2

 During the conference the appellant and her representative indicated that they do not 

believe the agency has fully complied with the Board’s order to pay the appellant the 

appropriate amount of back pay, with interest and to adjust benefits with appropriate 
 

 

4 

damages, and compensatory damages (including interest, 

reasonable expert witness fees, and costs). 

5 U.S.C. § 1221(g)(1)(A) (emphasis added). The appellant’s request for 

consequential and compensatory damages was filed after November 27, 2012, but 

prior to the effective date of the WPEA. Further, the appeal was decided under 

the provisions of the WPA rather than the WPEA. Thus, there is a question 

whether the new provisions of the WPEA relating to damages are retroactive so 

that compensatory damages may be awarded in this proceeding. 

The U.S. Supreme Court considered the question of statutory retroactivity 

in Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 

229 (1994), a case that involved amendments to the Civil Rights Act of 1964 by 

the Civil Rights Act of 1991. The language at issue in Landgraf was similar to 

that used here: “Except as otherwise specifically provided, this Act and the 

amendments made by this Act shall take effect upon enactment.” Id. at 257. The 

Court noted that such language does not, by itself, resolve the question. In 

resolving the question of retroactivity, the Court first addressed the need to 

reconcile the tension between generally applicable rules of statutory 

interpretation. Specifically, 

[T]he first is the rule that “a court is to apply the law in effect at the 

time it renders its decision,” Bradley v. School Bd. of Richmond, 416 

U.S. 696, 711 (1974). The second is the axiom that “retroactivity is 

not favored in the law,” and its interpretative corollary that 

“congressional enactments and administrative rules will not be 

construed to have retroactive effect unless their language requires 

this result.” Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 

208 (1988). 

 

credits and deductions in accordance with the Office of Personnel Management's 

regulations. I indicated that, as a general rule, compliance matters are handled through 

a petition for enforcement. See 5 C.F.R. § 1201.181 (2012). Because the appellant’s 

back pay and benefits are covered under the damages provision of 5 U.S.C. § 1221, I 

find that any dispute concerning the appellant’s back pay and benefits may be 

adjudicated in this addendum proceeding. 
 

 

5 

Id. at 264. The Court set out a framework for determining whether a statute 

should be given retroactive effect. The Court stated that a tribunal must first 

determine whether Congress has expressly prescribed the statute’s temporal 

reach. Id. at 280. If the new statute does not contain an express prescription, the 

tribunal must determine whether it would have actual “retroactive effect,” that is, 

whether its provision “attaches new legal consequences to events completed 

before its enactment[,]” id. at 270, or would “impair rights a party possessed 

when he acted, increase a party’s liability for past conduct, or impose new dutie s 

with respect to transactions already completed.” Id. at 280.The Court concluded 

that if retroactive application of the new statute would have the above-cited 

effects, it would apply the “traditional presumption” against retroactivity, “absent 

clear congressional intent favoring such a result.” Id.;see also Parker v. Office of 

Personnel Management, 90 M.S.P.R. 480, 486 (2002). 

The WPEA contains no express prescription of retroactivity and its 

legislative history concerning this issue is inconclusive. The version passed by 

the House of Representatives states that “[r]ights in this Act shall govern legal 

actions filed after its effective date,” expressly declaiming any retroactive 

application. H.R. REP. NO. 112-508 at 12 (2012). By contrast, retroactivity is 

suggested by comments in the Senate’s version, which provides in relevant part: 

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

enactment. The Committee expects and intendsthat 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 application 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.

S. REP. NO. 112-155, at 52 (2012) (emphasis added). 
 

 

6 

The language in the Senate Report is a legislative precursor of the actual 

Act, but it is contradicted on the point of retroactivity by the express terms of the 

House of Representative’s legislative version. The Court noted in Landgraf, 

“[s]tatutes are seldom crafted to pursue a single goal, and compromises necessary 

to their enactment may require adopting means other than those that would most 

effectively pursue the main goal.” Landgraf, 511 U.S. at 286.3

 Given the 

ambiguous legislative history, and the absence of express language in the WPEA 

itself, I find that the act does not evidence clear Congressional intent in favor of 

retroactivity. I, further, find that in adding the availability of compensatory 

damages, the WPEA attached new legal consequences to events completed before 

its enactment.Further, the expansion of damages to include compensatory 

damages involves a waiver of sovereign immunity and the United States Supreme 

Court has held that a waiver of sovereign immunity must be unequivocally 

expressed in statutory text and a waiver of such immunity will be strictly 

construed in favor of the sovereign. Lane v. Pena, 518, 187, 192 (1996). Upon 

consideration, Congress has waived sovereign immunity with regard to 

compensatory damages to be awarded in 5 U.S.C. § 1221(g)(1)(A)(ii), but 

Congress did not express whether that provision was to apply to cases pending on 

the date the statute became effective. Accordingly, I conclude that its application 

to pending cases would have actual retroactive effect, as defined by the Court in 

Landgraf, and that therefore the presumption against statutory retroactivity 

 

3

 The WPEA expressly provides that its provisions take effect 30 days after the date of 

enactment, except for TSA cases, which are governed by the WPEA immediately upon 

enactment. If Congress intended the WPEA to apply retroactively to all pending 

appeals, there was seemingly no reason to include a separate provision making it 

effective in TSA cases 30 days sooner than other cases. See Special Counsel v. 

Wilkinson, 104 M.S.P.R. 253, 261 (2006)(“‘A cardinal principle of statutory 

construction” [provides] that ‘a statute ought, on the whole, to be so construed that, if 

it can be prevented, no clause, sentence, or word shall be superfluous, void, or 

insignificant.’”)(quoting TRW, Inc. V. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 

L.Ed2d 339 (2001)). 
 

 

7 

applies in this case. See Caddell v. Department of Justice, 96 F.3d 1367, 1371 

(Fed.Cir. 1996)(1994 amendment to the WPA, which included decision to order 

psychiatric testing as a personnel action, enlarged conduct subject to WPA, and 

would have retroactive effect if applied to conduct occurring prior to effective 

date of amendment; in the absence of express legislative intent, presumption 

against statutory retroactivity therefore barred application of amended version of 

WPA in pending case). 

This ruling regarding the retroactive applicability of the WPEA is subject 

to certification for interlocutory review by the Board, upon my own motion, or 

the motion of either party. 5 C.F.R. § 1201.91 (2012). Such an interlocutory 

appeal is appropriate for review of a ruling involving “an important question of 

law or policy about which there is substantial ground for difference of opinion[,]” 

and where “[a]n immediate ruling will materially advance the completion of the 

proceeding....” 5 C.F.R. § 1201.92 (a), (b). I find the question of whether the 

provisions of the WPEA with regard to damages may be applied retroactively to 

pending cases involving conduct occurring prior to its effective date is 

appropriate for review under the criteria set forth under 5 C.F.R. § 1201.92.4

 

Accordingly, it appears to be appropriate to certify this issue for interlocutory 

appeal. If either party objects to such an interlocutory appeal, I must receive 

such objection no later than February 20, 2013. If an interlocutory appeal is 

certified, all further proceedings on the appellant’s motion for damages will be 

stayed while the interlocutory appeal is pending before the Board. See 5 C.F.R. 

§ 1201.93(c). 

 

4

 The parties are advised that an interlocutory appeal is currently pending before the 

Board concerning the retroactivity of the WPEA’s provisions concerning covered 

disclosures. Further, the Board has announced an opportunity to file amicus briefs on 

that issue. See 78 Fed. Reg. 9431 (Feb. 8, 2013). 
 

 

8 

If either party disagrees with this Summary, I must receive a written 

objection or motion to supplement this Summary no later than February 15, 2013. 

FOR THE BOARD: ___/S/___________________________ 

Marie A. Malouf 

Administrative Judge 
 

 

CERTIFICATE OF SERVICE 

I certify that the attached Document(s) was (were) sent as indicated this 

day to each of the following: 

Appellant

Electronic Mail Barbara R. King 

Appellant Representative

Electronic Mail Joseph Bird, Esq. 

136 South Pontiac Trail Suite 2 

Walled Lake, MI 48390 

Agency Representative

U.S. Mail Maj. Lawrence Lynch 

Department of the Air Force 

AFLOA/JACL TX LLFSC 

1 Washington Circle, Ste. 10 

Randolph AFB, TX 78151-4564 

February 11, 2013 /s/ 

(Date) Crystal Q. Wilson 

Paralegal Specialist 

B6