retroactivity. Rather than undermine those merit system principles, retroactivity would enforce
them.

Indeed, it would create a manifest injustice not to apply the WPEA retroactively. It would
be an injustice to permit punishment of employees for honoring their public service duties under
the Code of Ethics while carrying out taxpayer-funded activities, merely because they fulfilled
their duties in the “wrong” context or too soon. Managers would escape the accountability of
justice. As recognized by the Leahy Report, it would be an injustice to the public to sustain
public service breakdowns by continuing to undermine the free flow of information. As the
Senate Report further explained, retroactive application is “expected and appropriate because the
legislation ... removes and compensates for burdens that were wrongly 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.” Senate Report, at 52.

II. CONGRESSIONAL INTENT IS CLEAR: APPLY THE STATUTE RETROACTIVELY

Even if the Board finds that the WPEA is not a clarification and its retroactive application

would cause manifest injustice, clear congressional intent mandates retroactivity. To do

otherwise would frustrate legislative intent and the statute’s purpose. This final criterion has

supremacy over the other factors. Landgraf, 544 U.S. at 262. As the Court explained,
Retroactivity provisions often serve entirely benign and legitimate purposes, whether to
respond to emergencies, to correct mistakes, to prevent circumvention of a new statute in
the interval immediately preceding its passage, or simply to give comprehensive effect to
anew law Congress considers salutary. However, a requirement that Congress first make
its intention clear helps ensure that Congress itself has determined that the benefits of

retroactivity outweigh the potential for disruption or unfairness.

Id., 511 U.S. at 268-69.

15


whistleblower is not deprived of protection just because the disclosure was made to an
individual, including a supervisor, who participated in the wrongdoing. ..Finally, an employee is
not deprived of protection merely because the employee made the disclosure in the normal
course of the employee’s duties...” (emphasis added) Senate Report, at 5.

As stated without qualifier in the Senate Report’s section-by-section analysis, Section
101(b) makes —

clear that ‘any disclosure’ means ‘any disclosure’ by specifically stating that a disclosure

does not lose protection because: the disclosure was made to a person, including a

supervisor, who participated in the wrongdoing disclosed.... Section 101(b) also clarifies

that a disclosure is not excluded from protection because it was made during the
employce’s normal course of duties, providing the employee is able to show reprisal...
Senate Report, at 41 (emphasis added).

If there were any doubt, the Senate Report explicitly relies on the principle of
clarification as one of the reasons for its instructions to apply the WPEA retroactively to pending
cases: “Such application is expected and appropriate because the legislation generally corrects
erroneous decisions by the MSPB and the courts...” /d., at 52.

While not as in-depth, the House Report for the WPEA is consistent. Its statement on
“BACKGROUND AND NEED FOR LEGISLATION” includes the following composite
explanation: The Whistleblower Protection Enhancement Act “reestablishes appropriate
whistleblower protections from retaliation.” (emphasis added) H. Rep. no. 112-508, 112 Cong.,
2d Sess. (2012), at 6 (“House Report”).

In short, Congress repeatedly has affirmed and reaffirmed the Act to make clear what it
intended all along. In terms of statutory language, Mr. Day’s disclosures always have been

protected under 5 USC 2302(b)(8). It is not retroactive to respect Congress’ latest affirmation of

the same legal rights it has legislated four times since 1978.


Judge Weiss correctly noted that prior to final legislative passage there can be many
compromises, referencing Landgraf. Certification Order, at 10. His insight was well-taken for
the WPEA, to put it mildly. In the end, Congress chose S. 743 for final passage but made major
modifications, such as removing provisions for jury trials, Board summary judgment authority,
extension of the WPEA to the intelligence community and extension of the legislation to prohibit
retaliation in security clearance actions. However, there were no changes to the silent text on
retroactivity, and no subsequent contrary legislative history to the unqualified mandate and
instruction to apply the WPEA retroactively in S. 743’s committee report. The only reference
before final passage came from the legislation’s original sponsor Todd Platts, for whom the
House bill was named. House Report, at 12. Similar to Department of Toxic Substance Controls
and Leake, Representative Platts gave a floor speech directly quoting the Senate Report on
retroactivity and supporting the Senate Report’s mandate for retroactive application to pending
cases: “[I]t must be understood that those whistleblowers who have been waiting for this bill to
be enacted are protected by its provisions.” 158 Cong. Rec. E1664 (Sept. 28 2012). Clearly,
Congress has considered and consistently expressed its intentions on retroactivity.

Complementing the supremacy of congressional intent, Landgraf and Olin call for similar
deference with respect to a statute’s purpose. Landgraf, 511 U.S. at 268-69; Olin, 107 F.3d at
1513-14 Not applying the statute to pending cases would frustrate the purpose of the statute. As

the Senate Report explains,

[S]eventeen years after the last major revision of the WPA, it is again necessary for
Congress to reform and strengthen several aspects of the whistleblower protection
statutes in order to achieve the original intent and purpose of those laws....[T]he
Committee has concluded that the strong national interest in protecting good faith
whistleblowing requires broad protection of whistleblower disclosures.

19


TABLE OF CONTENTS

INTERESTS OF AMICI CURIAE.Q...c.ccccccecsssesseeesessesssseeseenesnescsneseenenssnsnsssenseneneenssteneseeneneensenenees
SUMMARY OF THE ARGUMENT ....csccscescesssssessesssesnssssesessvesnesscenessesnesnecnecssesueenseseaneeeanerneenaes

I. WPEA’S APPLICATION IS NOT RETROACTIVE, SINCE IT IS A
CLARIFICATION OF LAW... .ccccessessessessesseesscseesnessecssessceneanecaseneanecneenessequnsarsnnceasensenseneeneennens

Il. APPLYING THE WPEA TO PENDING CASES WOULD NOT PRODUCE
MANIFEST INJUSTICE .....sccccsscesessesseesessecssessesneesesseesucsscsneanecsecsesassasenecseesnesnssnesacensenseneeneeeneas

Ill. CONGRESSIONAL INTENT IS CLEAR: APPLY THE STATUTE
RETROACTIVELY .....ccccsssessesssessssesssessssecnssuesscsuscnecsuesucsuseuecsessncansaesaasurssnsnnecnsenecaceneeseaneeneeareas

IV. THE STATUTE MUST BE APPLIED PROSPECTIVELY FOR ALL CASES ......19

CONCLUSION ..e.cececcsescececesseeseseseeseecsassesscssssneescsnenssussesnsseensaneseseenesseneneeneaneneaneneseeneaeeneeeeneetee


There is a dearth of relevant jurisprudence analyzing congressional intent on this issue in
Federal Circuit and Merit Services Protection Board case law. Previous cases involved statutes
that specifically authorized retroactivity in some sections but not others (See Bernklau v.
Principi, 291 F.3d 795, 803-804 (Fed. Cir. 2002))'; did not contain relevant legislative history on
retroactivity (See Caddell v. DOJ, 96 F.3d 1367, 1371 (Fed. Cir. 1996) for the 1994
Whistleblower Protection Act amendments); or explicitly rejected retroactivity. (See Terran v.
Secretary of HHS, 195 F.3d 1302, 1315-16 (Fed. Cir. 1999); Moran v. MSPB, 1998 U.S. App.
LEXIS 2891 (statute did not have a retroactive effect upon application); Avila v. Office of
Personnel Management, 79 F.3d 128, 131 (Fed. Cir. 1996) (statute stated it did not affect rights
of persons prior to effective date of act)).”

Landgraf’s progeny in other jurisdictions, however, have produced a wealth of cases
finding clear congressional intent to apply a statute retroactively when its language did not
specifically prescribe retroactively. That degree of intent can be discerned from legislative
history. Hamdan v. Rumsfeld, 548 U.S. 557, 583 (2006).

Committee reports have been primary sources for courts to find clear congressional intent
for retroactive application. See United States v. Olin Corp., 107 F.3d 1506, 1512-1513 (11th Cir.

Ala. 1997), In Olin, the 11" Circuit ruled that not applying the statute retroactively would

* Although Judge Weiss asserted that is the scenario here, Certification Order at 6, 10n.1, his analysis was
incomplete. His basis was that the statute authorizes prospective application of the statute to Transportation
Security Administration (TSA) workers upon immediate enactment, as opposed to 30 days afterwards for all other
covered workers. These arguments, however, are convincing only on a surface level. The Senate Report details how
TSA workers were never covered under the WPA and had an ad-hoc relationship with the Office of Special Counsel.
The Senate saw no legitimacy in this relationship and wanted to afford whistleblower rights to TSA workers
immediately upon enactment where none existed before. See Senate Report, at 18-19,

? That similarly was the case with Parker v. Office of Personnel Management, 90 M.S.P.R. 480 (2002), cited by
Judge Weiss. Certification Order, at 9. Parker is inapposite. The court never made it past the first step of the
Landgraf analysis, since the statute specifically prescribed that it did not apply to pending cases or injuries occurring
before enactment. See Parker, M.S.P.R. at 486, No such parallel exists in the WPEA. The statute’s language is silent
on pending cases and retroactivity in Section 202: “Except as otherwise specifically provided, this Act and the
amendments made by this Act shall take effect upon enactment.” Judge Weiss correctly interprets Landgraf when he
concludes that the language fails to satisfy its requirement for express language. /d.

16


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.

Respectfully submitted,

az a oy
a, bye

Thomas Schafbuch
Thomas.schafbuch@gmail.com
Thomas Devine
tomd@whistleblower.org
Government Accountability Project
1612 K Street, NW Suite #1100
Washington, DC 20006
202.457.0034. ext. 124
Attorneys for Amicus Curiae

March 1, 2013

22


In the WPEA it is undisputed that Congress did not expressly prescribe the statute’s
temporal reach. As with Landgraf, the effective date states the Act will take effect 30 days after
enactment (WPEA Sec. 202) but is silent on retroactivity. 5

The record on congressional intent in Landgraf was anything but clear on retroactivity
and is inapposite to the case at hand. The Court analyzed the legislative history of the Civil
Rights Act of 1991 and found it conflicted. The bill was vetoed a year before by the President on
grounds that the retroactive provision of the statute was unfair. The reintroduced bill diluted the
retroactive provision of the bill, and an “interpretive memorandum” was introduced by seven
Senators emphasizing their view that the statute was not retroactive in application unless
explicitly stated. Landgraf, 511 U.S. at 262 n.15.

The record of clear WPEA congressional intent for retroactivity is the opposite of
Landgraf. Directly parallel to Harvey, a Section-by-Section analysis of the Senate Report for the

final bill states:

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.

(Senate Report, at 52). As with Olin, the Senate Report also states that wrongful burdens have
been imposed on whistleblowers exercising their rights. (Senate Report, at 4-7). The House
Report on the statute was published after the Senate Report. While mentioning prospective

application to cases filed after enactment, it is silent on retroactivity. House Report, at 12.

3 While Judge Weiss conceded that this statutory language did not qualify as express guidance on retroactivity,
Certification Order at 6, he later contradicted himself by evaluating identical language in the House Report as an
express prohibition. /d, at 9 Amici submit he was right the first time The House Report’s language reflects silence
on retroactivity, the same as statutory text.

18


The stakes of associated public concerns are doubly significant here — government
breakdowns and/or breaches of the public trust, on issues ranging from government illegality to
substantial and specific threats to public health or safety. As observed in the “Leahy Report,” a
Senate Judiciary Committee study that provided the in-depth public policy foundation to pass
whistleblower rights in 1978,

The Code of Silence thwarts top management's ability to effectively manage

and actually removes the burden of accountability from their shoulders. Fear of

reprisal renders intra-agency communications a sham, and compromises not only the

employee, management and the Code of Ethics, but also the Constitutional function of

congressional oversight itself.
The Whistleblowers: A Report on Federal Employees Who Disclose Acts of Government Waste,
Abuse and Corruption Prepared for the Senate Comm. on Governmental Affairs, 95" Cong., 2d
Sess. 49 (1978). That is why there never has been a dissenting vote in Congress when the rights
in section 2302(b)(8) were enacted and reenacted in final votes, four times since 1978.

The nature of the rights further rebuts concerns of any manifest injustice. Analogous to
City of Portage, there is no general right to retaliate. Nor can there be any contention that
retroactively protecting disclosures to supervisors or as part of job duties would undermine the
rights of managers, who are still empowered to take any valid action they would have
independently, even if illegal retaliation were a contributing factor. 5 USC 1221(e). Indeed, the
WPEA will strengthen their ability to manage by freeing up the flow of information necessary to
carry out their duties.

Finally, it cannot be seriously contended that retroactive application would take anyone
by surprise through unanticipated action that upsets settled expectations without enfranchising

those affected. The WPEA or earlier versions received unanimous chamber and committee votes

in every Congress since 2004, and approval only was delayed through secret holds that blocked

13


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 had not intended.

Independent from its clarifying status, the WPEA should be applied retroactively. It does
not add new, materially significant substantive rights, liabilities or burdens to plaintiffs or
defendants that were unanticipated or upset settled expectations. Further, the changes do not
undermine the rights of private parties, but rather reinforce a repeatedly unanimous good
government mandate. As a result, the doctrine to apply the law in effect when a decision is
issued can be honored, without incurring concerns of manifest injustice that would disfavor
retroactivity.

The primary grounds for caution on retroactive application involve unfairness due to
changes in contractual terms or government taking of property, not issues here. The doctrine is
applied flexibly, and is relaxed significantly when retroactivity promotes or is necessary for
significant public policy objectives.

The WPEA does not upset settled expectations or create new, unanticipated burdens,
which are primary criteria to evaluate whether there is a manifest injustice. Agencies long have
been on notice that under merit system principles, including the Code of Ethics for Government
Service, it is unlawful to act against employees because of lawful, credible and significant
whistleblowing disclosures, regardless of context. Whistleblower rights were created specifically
so that employees could safely honor their duties under the Code of Ethics. The WPEA does not

change those rights. Rather, it makes them enforceable. It would be a manifest injustice both to


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 Liberty Coalition, with 93 member organizations, works to help organize, support,
and coordinate trans-partisan public policy activities related to civil liberties and basic human
rights. We work in conjunction with groups of partner organizations that are interested in
preserving the Bill of Rights, personal autonomy and individual privacy. Since 2006, we have
done hundreds of Hill visits as well as press conferences and round table discussions in support
of whistleblower protections especially in the national security realm. We strongly support the
retroactive application of the Whistleblower Protection Enhancement Act. We see it as a

clarification of existing law and not the creation of new law retroactively applied.

The Project on Government Oversight (POGO), founded in 1981, is a nonpartisan
independent watchdog that champions good government reforms. POGO’s investigations into
corruption, misconduct, and conflicts of interest achieve a more effective, accountable, open, and
ethical federal government. Working with whistleblowers to expose government waste, fraud,
abuse, and illegality is an integral part of POGO’s mission, and ensuring strong whistleblower
protections is one of our core policy priorities. POGO helped to lead efforts to pass the
Whistleblower Protection Enhancement Act (WPEA), serving as a steering committee member

of the Make It Safe Coalition, testifying about the legislation before Congress, lobbying for the

2


INTERESTS OF AMICI CURIAE

Amici Elijah Cummings and Jackie Speier are Members of Congress and members of the
U.S. House of Representatives Committee on Oversight and Government Reform, which has
responsibility for oversight of the civil service system and responsibility for House action on the
Whistleblower Protection Enhancement Act. As Ranking Member, amicus Cummings was a
leader in drafting the WPEA. Both were co-sponsors who participated actively in the
legislation’s passage. Both offices work actively with individual whistleblowers, to help them
make a difference without incurring job-threatening retaliation that would chill other employees

from defending the taxpayers.

The Center for Financial Privacy and Human Rights was founded in 2005 to defend
privacy, civil liberties and market economics. The Center was the first non-profit human rights
and civil liberties organization whose core mission recognizes traditional economic rights as a
necessary foundation for a broad understanding of human rights. CFPHR is part of the Liberty
and Privacy Network, a non-governmental advocacy and research 501(c)(3) organization.
CFPHR helped with passage of the WPEA through congressional lobby visits, support on
organizational sign-on letters and participation in broader campaign efforts such as coalition
networking. CFPHR cares deeply about the Day decision on WPEA retroactivity, because it will
determine whether deserving whistleblowers are eligible under the new law as congress
intended, after having waited years for its passage.

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;


final enactment at the end of each session. The unanticipated action was judicial defiance of
unequivocal statutory language, and despite repeated expressions of frustration in legislative
intent that “any” means “any.” Nor could it be contended that government management officials
were disenfranchised. To illustrate, employee burdens were raised to require retaliatory animus
for “job duty” disclosures to prevail. In response to management concerns, the modification was
added to facilitate supervision of employees like auditors whose duties regularly require
disclosures of government misconduct. (Senate Report, at 5-6).

The ban on harassment of whistleblowers is not a new obligation at all, anticipated or
unanticipated. It is only newly enforceable under the WPEA. Agency officials always have been
on notice that whistleblower retaliation is illegal, even if judicial loopholes deprived enforcement
through 5 USC 2302(b)(8). In 5 USC 2301(b) (9) there are no Huffman loopholes in merit
system principles for lawful disclosures to possibly wrongdoing supervisors, or those that are
part of job duties. That merit system principle also applies without exception to any Executive
agency. See 5 USC 2302(a)(1).

Further, there can be no question that agency managers are aware of another law that
“implements or directly concerns merit system principles” under 5 USC 2302(b)(11) -- the Code
of Ethics for Government Service. PL 96-303, 94 Stat. 855 (July 3, 1980) and 5 CFR Part 2635.
They have seen the Code’s controlling guidance in its first principle every day, because it is
required by law to be displayed in every government office: “I. Put loyalty to the highest moral
principles and to country above loyalty to persons, party, or Government Department.” The
point of enacting section 2302(b)(8) in 1978 was so that an employee can “fulfill those
obligations without putting his or her job on the line.” Amici suggest that section 2302(b)(9) and

the Code of Ethics should govern whether agencies would suffer a manifest injustice from

14


extent that this decision compromises the WPEA, it affects our work educating federal scientists
about their rights as whistleblowers, and giving them the confidence to raise concerns about the

scientific integrity of their work.

The Brown Center for Public Policy, also known as (a/k/a) Whistlewatch.org, is a Not
For Profit, Public Benefit 501(c)(3) corporation, incorporated in the State of California that
engages in advocacy, education, journalism and litigation on behalf of whistleblowers and tax
payers. WhistleWatch.org qualifies as a representative of the news media under 5 U.S.C. §
552(a)(4)(A)(ii)(ID) 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. 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, and worked actively for passage of the

Whistleblower Protection Enhancement Act.

SUMMARY OF THE ARGUMENT

The statutory language and legislative history of the Whistleblower Protection
Enhancement Act, P. L. No. 112, 126 Stat. 1376 (November 26, 2012) (“WPEA”) is clear. The
WPEA clarifies and reaffirms the thrice-repeated original intent of Congress from the Civil
Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111(1978); the Whistleblower
Protection Act of 1989 (“WPA”), Pub. L. No. 101-12, 103 Stat. 16 (1989); and 1994
amendments to the WPA. Clarification of an existing law does not require retroactive analysis of

its potential ramifications and applies immediately upon enactment. The WPEA is a clarifying


Senate Report, at 4, 6. Not applying the WPEA retroactively would frustrate the law’s purpose
by continuing to deny justice for the same whistleblowers Congress intended to protect all along,
through discredited standards that have been specifically overturned as erroneous barriers to the

public interest in accountable government.

The record created by Congress on the purpose and intent of the WPEA is stronger than
all the cited cases finding congressional intent for retroactivity through legislative history. The

statute must be applied retroactively because of clear congressional intent.

IV. THE STATUTE MUST BE APPLIED PROSPECTIVELY FOR ALL CASES

Independent of pending cases, the Board should clarify prospective application by
informing whistleblowers whether the WPEA will control proceedings in all cases filed after its
effective date. In Landgraf, the Court reminded that a statute is not retroactive “merely because it
draws upon antecedent facts for its operation.” 511 U.S. at 270, quoting Cox v. Hart, 260 U.S.
427, 435, 67 L. Ed. 332, 43 S. Ct. 154 (1922). At a minimum, the Board’s ruling should address
the following contexts relevant for prospective application -- 1) both protected communication
and personnel action before effective date of the WPEA but suit filed afterwards; and 2)
protected communication before the effective date but personnel action after.

The WPEA must govern both prospective scenarios. Congressional intent is even
stronger here than for retroactivity. While the House Report was silent on retroactivity, it
unequivocally instructed that there should be no loopholes for prospective application: “Rights in
this Act shall govern legal actions filed after its effective date.” House Report, at 12.

Even in the absence of clear congressional intent, the law should be applied prospectively
under principles consistent with Landgraf. As applied in United States ex rel. Anderson v.
Northern Telecom, 52 F.3d 810, 814-815 (9th Cir. Wash. 1995); cert. denied, 516 U.S. 1043

20


THE UNITED STATES OF AMERICA
MERIT SERVICES PROTECTION BOARD

THOMAS F. DAY, DOCKET NUMBER
APPELLANT, DC-1221-12-0528-W-1
v.
DEPARTMENT OF HOMELAND DATE: MARCH 1, 2013
SECURITY
AGENCY.

BRIEF OF AMICI CURIAE REPRESENTATIVE ELIJAH CUMMINGS,
REPRESENTATIVE JACKIE SPEIER, CENTER FOR FINANCIAL PRIVACY AND
HUMAN RIGHTS, GOVERNMENT ACCOUNTABILITY PROJECT, LIBERTY
COALITION, PROJECT ON GOVERNMENT OVERSIGHT,

UNION OF CONCERNED SCIENTISTS, AND WHISTLEWATCH

Thomas Schafbuch
Thomas.schafbuch@gmail.com
Thomas Devine
tomd@whistleblower.org
Government Accountability Project
1612 K Street, NW Suite #1100
Washington, DC 20006
202.457.0034. ext. 124

Attorneys for Amici Curiae


Sales, 979 F.2d 887, 890 (1st Cir.1992); Boddie v. American Broadcasting Cos., 881 F.2d 267,
269 (6th Cir, 1989).

Statutory construction is the first step to learn whether a new statute clarifies previous
law. See Loving v. United States, 517 U.S. 748, 770 (U.S. 1996), quoting Red Lion Broadcasting
Co. v. FCC, 395 U.S. 367, 380-1 (“Subsequent legislation declaring the intent of an earlier
statute is entitled to great weight in statutory construction.") This is especially true if the
enacting body’s declaration is included in an amendment’s text. Cortes, 177 F.3d at 1283 Courts
also examine the legislative history of an amendment to assess whether it is consistent with a
“reasonable” interpretation of the original statute. See Liquilux, 979 F.2d at 890; Sykes v.
Columbus & Greenville Ry., 117 F.3d 287, 293-94 (Sth Cir.1997), quoting Bobsee Corp. v.
United States, 411 F.2d 231, 237 n.18 (5th Cir.1969) ("Although a committee report written with
regard to a subsequent enactment is not legislative history with regard to a previously enacted
statute, it is entitled to some consideration as a secondarily authoritative expression of expert
opinion.") SEC v. Clark, 915 F.2d 439, 451-52 (9th Cir.1990) ("While a statement concerning an
earlier statute by members of a subsequent legislature is of course not conclusive evidence of the
meaning of the earlier statute, the later interpretation may be accorded some deference where the
subsequent legislative commentary accompanies the enactment of an amendment to the earlier
law.”)

Relevant WPEA language and legislative history on coverage loopholes is squarely
within this doctrine. Section 101 of S.743, the version of the legislation ultimately passed by
Congress, is entitled “Clarification of Disclosures Covered [.]” The protection loopholes that
Congress removed in Section 101 specifically include those relevant for this proceeding --

disclosures to wrongdoers, supervisors and as part of job duties.


whistleblowers and the public concerns they defend, if their cases were adjudicated under
outdated, unanimously discredited legal standards.

Even if the WPEA materially affected parties’ substantive rights, it must be applied
retroactively due to repeatedly-expressed, uncontradicted congressional intent in the legislative
history. Retroactivity also is necessary to achieve the law’s statutory purpose of protecting
whistleblowers wrongfully excluded from the WPA due to hostile judicial activism.

Finally, the Board should use this proceeding to establish the related rules for prospective
WPEA application. The Board should apply the WPEA in all otherwise-acceptable complaints
filed after the effective date, whether or not protected communications and/or personnel actions

occurred before the enactment.

ARGUMENT

L WPEA’S APPLICATION IS NOT RETROACTIVE SINCE IT IS A CLARIFICATION
OF LAW

The WPEA clarifies rights established since 1978 in 5 USC 2302(b)(8) by eliminating
judicial decisions that erroncously rewrote the statute’s plain language. Applying a clarifying
statute to pending cases is not retroactive application of the law. As the D.C. Circuit explained in
Baptist Memorial-Golden Triangle v. Sebelius 566 F.3d 226, 229 (D.C. Cir. 2009),

A change in statutory language need not ipso facto constitute a change in meaning or

effect. Statutes may be passed purely to make what was intended all along even more

unmistakably clear....An amendment containing new language may be intended to clarify

existing law, to correct a misinterpretation, or to overrule wrongly decided cases.

(internal quotation marks and citations omitted)

See also Brown v. Thompson, 374 F.3d 253, 259 (4th Cir. Va. 2004); Cortes v. American

Airlines, Inc., 177 F.3d 1272, 1283 (11th Cir. Fla. 1999); Liguilux Gas Corp. v. Martin Gas

6


strongest possible provisions, urging the public to take action, and organizing critical support.
The Day decision on retroactivity of the law is of great concern to POGO, because it will directly
influence the effectiveness and legitimacy of the WPEA reforms and deeply affect many of the
deserving whistleblowers who have been waiting for years for the rights they deserve, which are

now within reach.

The Center for Science and Democracy at the Union of Concerned Scientists strengthens
our American democracy by advancing the essential role of science, evidence-based decision
making a constructive debate as a means to improve the health, security and prosperity of all
people. The Center was founded by UCS in 2012. CSD was launched in 2012 by the Union of
Concerned Scientists, whose mission is to put rigorous, independent science to work addressing
our planets most pressing problems. Joining with citizens across the country, UCS combines
technical analysis and effective advocacy to create innovative, practical solutions for a healthy,
safe, and sustainable future. For more than a decade, UCS has been engaged in efforts to
strengthen whistleblower laws in order to ensure scientific integrity at federal agencies. UCS
heard from many scientist whistleblowers whose efforts to serve the public had been rebuffed by
agency managers, and who experienced threats to their job or other forms of intimidation. UCS
surveys of federal scientists also revealed that a concerning number experienced undue corporate
or political interference on their work and the work of their respective agencies. UCS actively
urged Congress to pass the Whistleblower Protection Enhancement Act, which for the first time
recognizes that a scientist who exposes the censorship of federal research is as much a
whistleblower as a government worker who blows the whistle on other types of waste, fraud and
abuse. The Day decision on retroactivity essentially weakens the WPEA, by making

whistleblower rights subject to a timetable not envisioned or mandated by Congress. To the


frustrate clear congressional intent to punish pre-enactment polluters. Olin quoted committee
reports on the statute and statements by legislators specifically supporting retroactive application.
Olin, 107 F.3d at 1514. Another post-Landgraf case found committee reports persuasive in
retroactively applying a statute. Ninth Ave. Remedial Group v. Chalmers, 946 F. Supp. 651, 660
(N.D. Ind. 1996). In Ninth Avenue Remedial Group, the court examined committee reports and
member statements to discern that while Congress had different motivations and ideas on the
scope of the bill, it clearly intended application of the statute against polluters who had violated
the statute before passage. Ninth Avenue Remedial Group, 946 F. Supp. at 662-64

Both before and after Landgraf, courts have inferred clear congressional intent from a
bill’s sponsor floor statement when it conforms to statutory language or other legislative history.
In Department of Toxic Substances Control y. Interstate Non-Ferrous Corp., 99 F. Supp. 2d
1123, 1135 (E.D. Cal. 2000) (quoting Brock v. Pierce County, 476 U.S. 253, 263 (1986), the
court relied on a sponsoring Senator’s statement to deduce congressional intent in favor of
retroactivity. Another court found that a Senator’s section-by-section analysis of a 2002 statute
supporting retroactivity introduced into the legislative history provided clear congressional intent
to apply the statute retroactively. Harvey ex rel. Widmann v. Lewandowski (In re Lewandowski),
325 B.R. 700, 706 (Bankr. M.D. Pa. 2005). See also Leake v. Long Island Jewish Medical
Center, 695 F. Supp. 1414, 1417 (quoting Regents of the University of California v. Public
Employment Relations Board, 485 U.S. 589, 108 S. Ct. 1404, 1409, 99 L. Ed. 2d 664 (1988))
(E.D.N.Y. 1988), affirmed Leake v. Long Island Jewish Medical Center, 869 F.2d 130 (2d Cir.

N.Y. 1989).

17


H. Rep. No. 112-508, 112" Cong., 2d Sess. (2012)

S. Rep. No. 112-155, 112" Cong., 2d Sess. (2012)

The Whistleblowers: A Report on Federal Employees Who Disclose Acts of Government Waste, «0. 13


I. RETROACTIVE WPEA APPLICATION SATISFIES SUPREME COURT
STANDARDS NOT TO CREATE MANIFEST INJUSTICE BY MATERIALLY
PREJUDICING PARTIES

The keystone case on retroactivity is Landgraf v. USI Film Prods, 511 U.S. 244 (1994).
In Landgraf the Supreme Court addressed how to implement laws with an effective date but
without guidance on retroactive application to pending cases. It reconciled two longstanding
valid but conflicting principles -- (1) a presumption against statutory retroactivity which occurs
when a new law “takes away or impairs vested rights acquired under existing laws, or creates a
new obligation, imposes a new duty, or attaches a new disability, with respect to transactions or
considerations already past . . . ." Landgraf, 544 U.S. at 569, 572-73 (citations and internal
quotations omitted); and (2) the doctrine that a court should "apply the law in effect at the time it
renders its decision," even though that law was enacted after the events that gave rise to the suit.
Id., at 273, quoting Bradley v. School Bd. of Richmond, 416 U.S. 696, 711 (1974).

The Court concluded the two doctrines can be reconciled by granting a qualified
presumption on retroactivity. For the reasons summarized by Judge Weiss in Day v. Dep’t of
Homeland Security, MSPB No. DC-1221-12-0528- W-1, Order and Certification for
Interlocutory Appeal, at 7-9 (“Certification Order”), the Court recognized there should be a
presumption against retroactivity that creates new burdens which prejudice a party. It qualified
the presumption, however, which is rejected where there is explicit congressional intent for
retroactivity that is consistent with or necessary for a statute’s purpose. Landgraf, 544 U.S. at
262.

The Court also emphasized that the presumption should be applied flexibly on a case-by-
case basis after a “process of judgment concerning the nature and extent of the change in the law

and the degree of connection between the operation of the new rule and a relevant past event.”

10


parties, but in great national concerns ... the court must decide according to existing laws ....”
Id., at 712.

With respect to the nature of rights affected, a public interest criterion also is relevant. As
explained in a municipal employment case, “The City never had a vested or unconditional right
to discriminate against individuals in the workplace ....” Guess v. City of Portage, 58 Fair Empl.
Prac. Cas. (BNA) 250 (N.D. Ind. 1992).

The primary criterion to assess the third factor is the element of surprise that upsets
legitimately settled expectations. It seeks to prevent “the possibility that new and unanticipated
obligations may be imposed upon a party without notice or an obligation to be heard.” Bradley,
416 USS. at 720.

Even if the WPEA were not technically a clarifying statute, the same statutory language
and legislative history demonstrate the law does not significantly affect substantive rights, duties,
liabilities or burdens. Nor could it create a manifest injustice under the Bradley criteria to
retroactively apply the standards that Congress intended all along.

With respect to the first manifest injustice criterion, nature of the parties, closing the
Huffman loopholes is not about disputes between private parties. The WPEA defines when
government employees may safely uphold their duties under the Code of Ethics for Government
Service. When Congress originally passed whistleblower rights in 1978, a bi-partisan coalition
of seventeen senators summarized the reason:

[t]o vindicate the code of Ethics for Government Service, established by

Congress twenty years ago, which demands that all federal employees

“Uphold the Constitution, laws and legal regulations of the United States

and all governments therein, and never be a party of their evasion” and

“Expose corruption wherever discovered.” Under our amendment, an employee

can fulfill those obligations without putting his or her job on the line.

Reprinted in 124 Cong. Rec. $14302-03 (daily ed. Aug. 24, 1978).

12


Moran v. MSPB, 1998 U.S. App. LEXIS 2891 16

Ninth Ave. Remedial Group v. Chalmers, 946 F. Supp. 651 (N.D. Ind. 1996) 17
Parker v. Office of Personnel Management, 90 M.S.P.R. 480 (2002) 16
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 7
Regents of the University of California v. Public Employment Relations Board, 485 U.S. 589, 108 S. Ct.

1404 17
SEC v. Clark, 915 F.2d 439 (9th Cir.1990) 7
Sykes v. Columbus & Greenville Ry., 117 F.3d 287 (Sth Cir.1997) 7
Terran v. Secretary of HHS, 195 F.3d 1302, 1315-1316 (Fed. Cir. 1999) 16
United States ex rel. Anderson v. Northern Telecom, 52 F.3d 810 (9" Cir. 1995) 20
United States v. Olin Corp., 107 F.3d 1506 (11th Cir. 1997) 16-19
Willis v. Department of Agric., 141 F.3d 1139 (Fed. Cir. 1998) 8
Statutes

5 USC 2302(b)(9)

5 CFR 2635

5 USC 1221(e)
5 USC 2302(a)(1) sossesessssssssssersnsesastsessssssnsssssnssastssstsastsastinesinssinetiaeeenesiaeeuneeuneeinseeesneennet 14
5 USC 2302(b)(11) sesesssssssssesessnsesssttnsstsasssessssassssssastseessansinesnesinennaceenetiaceuneeineeiaeeeesnetinet 4

Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111(1978);..

Pub. L. No. 101-12, 103 Stat. 16 (1989) ...sesscessssssessessesseesscseesnecseesnesneeseesneesneesecsnessessnssneeeneseneeaneneneenesanseees 4

Other Authorities

124 Cong. Rec. $14302-03
158 Cong. Rec. E1664 (Sept. 28 2012) ..ecccsscsesssseeeesssnseresesssesseessesssesssseeseeseenesesneanenesassasenenssnsaneaseaseress 19
52 Journal of Urban and Contemporary Law 81 (1997) .ssesssesssesssessesssessscsseessessecssensensesneeneesseesnsenneennes 11

Code of Ethics for Government Service, PL 96-303, 94 Stat. 855 (July 3, 1980) 5, 12-15, 21



(1996), the statute’s public policy goals control the balance of equities. In Andersen plaintiff
disclosed information to the government relating to a false claim. Under prior law, plaintiff
would have been barred from bringing a complaint against defendant after informing the
government. Congress passed an amendment in 1986 allowing relators to file suit after disclosing
the evidence of a false claim to the government. Plaintiff filed suit after enactment. Plaintiff's
suit was found to be prospective in application despite material facts occurring before the 1986
amendment’s passage. The court reasoned that while the amendment strengthened plaintiff's
right to file suit after informing the government; this did not create a new liability for defendant.
Defendant was on notice before the 1986 amendment that false claims to the government were
illegal. Jd. at 814-15.

With respect to the WPEA, any whistleblower who files suit after its effective date
should receive a well- deserved benefit -- restoration of protection that Congress long has
intended to govern the merit system. Full prospective application provides no injustice for
agencies. As discussed above, those institutions long have been on notice that on any lawful
whistleblowing disclosures are protected by merit system principles in general and the Code of
Ethics in particular. The alleged retaliation at issue here always has been unlawful under those
basic merit system standards. By removing loopholes and other non-statutory barriers, the

WPEA merely made those principles enforceable.

CONCLUSION

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

21


TABLE OF AUTHORITIES

Cases

Avila v. Office of Personnel Management, 79 F.3d 128 (Fed. Cir. 1996)
Baptist Memorial-Golden Triangle v. Sebelius 566 F.3d 226, 229 (D.C. Cir. 2009)
Bernklau v. Principi, 291 F.3d 795, 803-804 (Fed. Cir. 2002)

Bobsee Corp. v. United States, 411 F.2d 231 (Sth Cir.1969)

Boddie v,. American Broadcasting Cos., 881 F.2d 267 (6" Cir. 1989)
Bradley v. School Bd. of Richmond, 416 U.S. 696 (1974)

Brock v. Pierce County, 476 U.S. 253 (1986)

Brown v. Thompson, 374 F.3d 253, 259 (4th Cir. Va. 2004);

Caddell v. DOJ, 96 F.3d 1367, 1371 (Fed. Cir. 1996)

Cortes v. American Airlines, Inc., 177 F.3d 1272 (11th Cir. Fla. 1999)
Cox v. Hart, 260 U.S. 427, 435, 67 L. Ed. 332, 43 S. Ct. 154 (1922)

Day v. Dep’t of Homeland Security, MSPB No. DC-1221-12-0528- W-1

16

16

10

16

6

16

6

20

10

Department of Toxic Substances Control v. Interstate Non-Ferrous Corp., 99 F. Supp. 2d 1123 (E.D. Cal

2000)
Guess v. City of Portage, 58 Fair Empl. Prac. Cas. (BNA) 250 (N.D. Ind. 1992)
Hamdan v. Rumsfeld, 548 U.S. 557 (2006)
Harvey ex rel. Widmann v. Lewandowski (In re Lewandowski), 325 B.R. 700
Horton v. Department of the Navy, 66 F.3d 279 (Fed. Cir. 1995)
Landgraf v. USI Film Prods, 511 U.S. 244 (1994)
Leake v. Long Island Jewish Medical Center, 695 F. Supp. 1414 (E.D. N.Y. 1988)
Liquilux Gas Corp. v. Martin Gas Sales, 979 F.2d 887 (1st Cir.1992)

Loving v. United States, 517 U.S. 748 (U.S. 1996)

17

12

16

17

8
passim
17

6


The corresponding Senate Report explanation for Section 101 is entitled, “Clarification of
what constitutes a protected disclosure[.]” It not only is unequivocal about the “no exceptions”
scope of the 2012 legislation, it quotes dispositive legislative history from the 1989 and 1994
statutes demonstrating that the new law reaffirms what Congress wrote and intended all along:

The Committee . . . reaffirms the plain language of the Whistleblower Protection Act,

which covers, by its terms, ‘any disclosure,’ of violations of law, gross mismanagement, a

gross waste of funds, an abuse of authority, or a substantial and specific danger to public

health or safety. The Committee stands by that language, as it explained in its 1988 report
on the Whistleblower Protection Act. That report states: ‘The Committee intends that
disclosures be encouraged. The OSC, the Board and the courts should not erect barriers to
disclosures which will limit the necessary flow of information from employees who have
knowledge of government wrongdoing. For example, it is inappropriate for disclosures to
be protected only if they are made for certain purposes or to certain employees or only if
the employee is the first to raise the issue.'

The House Committee on the Post Office and the Civil Service similarly stated:

Perhaps the most troubling precedents involve the [MSPB's] inability to understand that

‘any’ means ‘any.' The WPA protects ‘any’ disclosure evidencing a reasonable belief of

specified misconduct, a cornerstone to which the MSPB remains blind. The only

restrictions are for classified information or material the release of which is specifically
prohibited by statute. Employees must disclose that type of information through
confidential channels to maintain protection; otherwise there are no exceptions.

S. Rep. No. 112-155, 112" Cong., 2d Sess. (2012), at 4 (“Senate Report”)

As explained further, the 1994 amendments “were intended to reaffirm the Committee’s
long-held view that the WPA’s plain language covers ‘any’ disclosure .... S. 743 makes clear,
once and for all, that Congress intends to protect ‘any disclosure’ of certain types of wrongdoing
in order to encourage such disclosures.” (emphasis added) Id., at 4-5.

The Senate Report specifically cited and rejected the two Federal Circuit precedents on
which Huffman is based -- Horton v. Department of the Navy, 66 F.3d 279, 282 (Fed. Cir.
1995)(disclosures to alleged supervisory wrongdoer not protected); and Willis v. Department of

Agric., 141 F.3d 1139, 1144 (Fed. Cir. 1998) (disclosures made during an employee’s normal job

duties are not protected). As emphasized, “Section 101 amends the WPA ... by clarifying that a


Id., at 269-70 The Court warned not to be mechanical in application. If citizens were “made
secure against any change in legal rules, the whole body of our law would be ossified forever."
(citation omitted) Jd., at 270.

Not all disruption is sufficient to trigger the presumption against retroactivity. The anti-
retroactivity canon requires more than “potential unfairness” before applying a statute’s scope.
Id., at 272 The Court cautioned that its presumption is designed to guard against changing
“settled expectations” without “individualized consideration... Familiar considerations of fair
notice, reasonable reliance and settled expectations offer sound guidance.” Id., at 266, 270.

Another criterion relevant for this proceeding is whether retroactive application threatens
contractual or property rights, either between private parties or when the government seeks to
take private property. Id., at 269-71; Laitos, “Legislative Retroactivity,” 52 Journal of Urban
and Contemporary Law 81 (1997) Those are the primary types of rights the presumption against
retroactivity seeks to protect, and prejudice in those contexts is entitled to more weight.

With respect to prejudicing a party, the composite rule is that courts should apply the law
in effect at the time of the rulings, “unless doing so would result in manifest injustice or there is
statutory direction or legislative history to the contrary.” /d., at 277 (quoting Bradley v. School
Bd. of Richmond, supra, 416 U.S. at 711). While there is no mechanical formula, Bradley's
guidance is to consider three factors in assessing whether a manifest injustice would occur: “(a)
the nature and identity of the parties, (b) the nature of their rights, and (c) the nature of the
impact of the change in law upon those rights. Bradley, 416 U.S. at 717. Relevant criteria to
assess those factors include whether retroactive application will strengthen the public interest in
national concerns. “It is true that in mere private cases between individuals, a court will and

ought to struggle against a construction which will, by a retroactive operation, affect the rights of

11