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UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BARBARA S. KING, )

Appellant, ) DOCKET NUMBER

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

)V. DEPARTMENT OF ) AIR FORCE,

Ageiuy ) May 3, 2013

APPELLANT'S RESPONSE TO 4MICUS BRIEFS

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TABLE OF CONTENTS

1. TableofCoflteflts............ ........ ......................... ... ...................page2

2. IndexofAuthority......... ................ ....,... ....................................page3

3. Introductioii ........................................................ page4

4. Faetiial Su1tuna)'.,...... . ...... ......... ... 1 ........................................ page 5

5. Issues Presented by A.inici ...................................................... .. ...,.page 6

6. Responsive Arguments...... ,. ..... ... ...................... ... .................... ..,pagel

PAGE 84/25

a. A clartfle4 meaningfid and complete remedy including all consequential damages

is as important as the corrected definitiàn ofprctected disclosures page 8

b. The Congressional Declaration that the WFEA is clarifying is the same as an

Express Statement that it is Retroactive page 10

c. Retroactive application ofthe WPEA is the km' ofthe case page 12

d. Barbara King and those similarly situation will not receive a windfall by virtue of

retroactive application page 15

e. The instant action was "pending" on the announced effective date of the WPEA

and there Is no issue as to retroactive application page 17

f The announced concerns by the VAforfair warning and harming individual

property rights offederal employees are without merit page 18

7. CONCLUSION ................................ .. ................................... .page23

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INDEX OFAUTHORITTY

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C4SES:

Brownv Thompson, 374 F. 3d.254, 259 (4th Cir 2004)....... ...... ........................ page 10

Fernando- Vargas v Gonzales, 548 US 30, 126 S. Ct 2422 (2006).................... . . .page 10, 18

Hartford Ins. Co. v Socialist People s Libyan Arab Jamahirya, 422 F. Supp. 2d 203,

207(1.DC2O06).,............. .... .................... ,,.....4I, .............................. page 13

Huffman v. Office ofPersonnel Management, 263 F.3d 1341 (Fed. Cir 2001)........... page 12

Hunter vAIlL Chalmers Corp., 797 F. 2d. 1714, 1729(2nd Cir 1986)..................... page 14

In re September 11 Litigation v UnitedAirlines, 889 F. Supp. 2d 616,

62 1 (SI) 201 2) ........................................ . . . ..................... . . .page 1 5

JohnsonvHUD,911 F.2d. 1302 (1990) ...................................................... page 11

Kimber1invQuinlan,199F3d.496(1999) ............................................. pagel2

KingvDepartmentoftheAlrForce, IDA 0752-09-0604-P-i ................... page 5

McCain v Northwest Community Corrections Center, 440 F.3d. 320,

33o(6thcir.2006) pagel9

Vasbinder vScoii, 976 F. 2d. 118 (2' Cir 1992).............................................. page 15

STA TUTES 4NDL&LA2ED A UTHORl77

5U.S.C.Sectioni22l,(g)(1)(A)(ii).............................................. pageS

5 T..J.S. C. 2302 ......................................................................................... page 6

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iNTRODUCTION

This reply brief is in response to the various Amicus Briefs submitted in this interlocutory

appeal. The primary issue is whether the Whistleblower Protection Enhancement Act (WPEA)

should be applied retroactively and/or retrospectively to provide the protections that were long

ago promised to Federal Government Whistleblowers. This appeal presents the specific issue of

the application of the provision of the WPEA that clarifies what the meaning of consequential

damages was intended to be wider the WPA by adding the term "compensatory damages" to the

remedy section of the WPA and otherwise making it clear that all reasonably foreseeable

damages that are a consequence of the prohibited conduct are recoverable. Since Congress

announced its intent that the WPEA is merely clarifring, it is presumptively retroactive.

The focus in the instant this action Is the nature of the damages that can be awarded. The

focus in the related case of Day v The Dcpartment of Homeland Security is the scope or nature of

the protected disclosure. The two are intertwined as inadequate remedies for making the

protected disclosure renders the protection afforded to a disclosure meaningless: a slap on the

wrist has not, does not and will not deter retaliation for making the righteous disclosure in the

first place.

The Administrative Law Judge (AJ) in the instant avtion Judge Malouf, determined that

the WPEA, and the recognition of the damages that are a consequence of retaliation is not

1T amicus brief of Dr. Durr makes reference to and discusses the balance between self.lnterest and public duty

that 311 government employees face when contemplating disclosing an impropriety they observe In the line of

duty. Absent a remedy that wIll make the employee whole and encourage disclosure, self-Interest is encouraged to

the detriment of the public. It Is an act of hypocrisy for the government and Its agencies to proclaim the need for

one last period of virtual Immunity by avoiding the liability that was Intended for covering up misconduct when the

government demands transparency from Its citizens, especially its largest institutions, with significant personal

liability for senior management. The government and its agencies should be held to the same standard as its

citizens If not a higher one. Moreover, liability under Sabannes Oxiey and even amendments to the Federal Rules

of Clvii Procedure Increasing managerial exposure have had no Impact on managerial discretion or ability to

discipline employees.

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applicable because its application would be retroactive and there is no clear congressional intent

to make the WPEA retroactive, See, Barbara R. King v Department ofthe Air Force, DA 0752-

09-0604-B-i, wherein the question of the retroactive application of the compensatory damages

provision of the WPEA, 5 Usc Section 1221, (g)(l) (A)(ii), is addressed. Judge Malouf's

decision on damages Is, however, inconsistent with her decision to afford protection to the

disclosures of Ms. King that was a part of her affirmative defense of whistle blower retaliation.

Thus, the A3 applied the WPEA retroactively as to the disclosure, but not as to damages. Having

first applied the WPEA retroactively to the disclosure provisions of the act, the law of the case

compels this Board to recognize that the damages provisions of the act areaiso retroactive asto

the instant action if not all pending actions.2

The retroactive application of the WPEA is, moreover, critical to the MSPB achieving its.

stated goals for insuring justice and providing an efficient and effective deterrent to conduct that

is inimical to the system. The MSPB's 2012 Annual Report provides that:

"A highly qualfled, diverse Federal workforce managed In accordance with the

Merit System Principles (M3Ps) and In a mannerfreefrom Prohibited Personnel

Practices (PPPs) Is critical to ensuring agency performance and service to the

public. The MSPs are, In essence, good management practices that help erasure

that the Federal Government is able so recruit, select, develop, and maintain a

high-quality wor/(orce and thereby reduce staffing costs and improve

organizational results for the American people. The PPPs are spec j/Ic proscribed

behaviors that undermine the MSPs and adversely affect the effectiveness and

efficiency ofrhe work/orce and the Government. The fundamental function of the

U.S. Merit Systems Protection Board (MSPB) is to ensure that the Federal

workforce is managed consistent with the MSPs, and protectedfrom occurrence

ofFFPs."

Z Arguably, since this case is still pending below [a stay was entered as to the remaining economic damages and

attorney feesi, the WPEA is not "retroactive in the instant action. Factual findings remain to be made by Judge

Malouf,

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FactualSummarp of Barbara Kini vAir Force

The instant action Involves protected3 whistleblower disclosures. The Agency, the Air

Force, chose to decline to take remedial action based on the protected disclosures made by

Barbara King. Instead the Agency chose to retaliate since retaliation had virtually no

consequence to the Agency, economic or otherwise, In the wake of those disclosures, Barbara

King was stripped of her duties and demoted in order to cover-up the wrongdoing. Ms. King's

whistleblower disclosures however, were made during the normal course of her duties. The

claim for emotional suffering and financial losses incurred by Barbara King are directly

attributed to the retaliation and the ongoing prohibited personnel practices. It Is a cruel irony that

Barbara King's disclosures concerned her observations of how sexual assault victims were

treated during the investigation process of the sexual assault charges. The victims she counseled

were being retaliated against during the process. In turn, Barbara King was retaliated against for

giving voice to the abuse of the victims, Retaliation in its many forms is used by federal agencies

to protect and cover up their abuse and deter the abuses being brought to light. By refusing to

enforce the WPA as intended, a culture of abuse and retaliation has been created and flourished,

That culture of abuse and retaliation for speaking up ensnared Barbara King.

A final decision in favor Barbara King was finally issued by Judge Malouf on October 3,

2012. Thus the AJ has determined that Barbara King is the prevailing party under 5 U.s.c.

2302. The decision was not made public until November 7, 2012. 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.

3Again, judge Malouf found the disclosures to be protected. They were'not protected underthe WPA and the

Huffman decision.

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This brief presents additional argument and authority for the recognition of the clarifying

nature of the WPEA and its retroactive application, the subject of several amicus briefs. It also

presents an argument specific to Barb King. In the case of King v. Department of the Air orce,

the key actors in her retaliation are no longer assigned and working at Sheppard AFB. The Wing

Commander, 0.0. Mannon, is now a Major Oeneral and the Chief of Staff with US Africa

Command; the OSl Detachment Chief, Mr. Timothy Habel, working at Randolph AFB in San

Antonio TX. Neither of these individuals is capable of being served or sued by King personally.

Any concern about personal responsibility or liability of the actors is misplaced in her specific

case.

JssueLresented by 4mici

In the instant appeal, eight (8) amtcus briefs were filed. Of the briefs submitted, six (6)

are supportive of the primary argument presented in this appeal and in the companion case of

Day v Homeland Security: is the WPEA intended to be clarifying and retroactive? Two (2) of the

briefs, submitted by two separate government agencies, the VA and the Department of

Homeland Security, urge the Board to reject retroactive application.

In addition to this primary issue, several sub issues are also discussed, including: I) Is the

WPEA truly clarifying; 2) Is there evidence of Congressional intent to apply the WPBA

retroactively; 3) Would retroactive application result in a windthll to Barbara King or other

claimants; 4) Are there aspects to Barbara King's case as to damages that distinguish it from

other pending claims; 5) What is the plain meaning of the Congressional preamble to the WPEA

an other provisions as to its effective scope; 6) Does the WPA create new substantIve rights or

clarify those already existing which have been subjected to judicial interpretation; 7) Is

retroactive application unfair; 8) What is the proper analysis for determining Congressional

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intent when there is an announcement by Congress that the WPEA is clarifying and what is the

analysis to be applied if there is no statement of intent; 9) What protection is afforded to a

whistle blower if the damages do not remedy the consequences of the retaliation? There may

well be other issues identified by the Board as It reviews the briefs submitted. These are the

important issues gleaned by Barbara Iing that are addressed in this submission.

ARGUMENT

I. A clan fled, meaningful and complete remedy including all

consequential damages is as important as the corrected definition of

protected disclosures

By protecting only incidental observations, the WPA as interpreted by the courts, failed

to provide any protection to employees. The types of disclosures most likely to be reported are

those seen during their normal activities. These disclosures were found to be unprotected by the

WPA. Thus, a qualifying protected disclosure was rare. Moreover, the consequence to the

agency was virtually non-existent. The judicial interpretation of "consequential" damages simply

encouraged government agencies to retaliate against eniployees. Even if an employee could fit

their disclosure into the narrow category of protected disclosures, the minimal consequences for

the agency did not deter retaliation or encourage employees to come forward. The combination

of an extremely narrow definition of what was protected and limited damages for retaliation

created an atmosphere of employee fear and silence when disclosure was needed.

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The extremely limited judicial definition of "consequential" damages under the WPA

was just as harmful to the purpose of deterring misconduct by the agency in the first place and

then protecting those who do the right thing by reporting fraud and improper conduct. What

measure of protection is afforded if the retaliation that can be visited upon a just employee

entails no remedy but for a slap on wrist to the Agency? If the penalty for rape was the same as

the fine for a traflic ticket, does anyone doubt that sexual assaults would increase? Similarly,

there should be no doubt that the interpretation of the WPA's damage provisions encouraged

agencies to take punitive action against whistle blowers. The interpretation made the protection

afforded a qualifying disclosure meaningless; just as asmall fine would make the crime of rape

meaningless.

The WPEA mandates that all reasonably foreseeable consequential or economic damages

are awarded in addition to the category of damages referred to as "compensatory damages", an

absolute necessity to protect a qualifying disclosure. One without the other accomplishes

nothing. Although the arnicus brief of Thomas C. Daniels contains an excellent analysis of the

legislative history of the WPEA, it suggests that the WPEA can be parsed and some sections

applied retroactively and others not. While Barbara King disputes the ability to carve the WPEA

into sections for purposes of retroactive application, she adopts the incisive argument made by

Daniels as to the implicit intent of Congress to make even section 107 (b) retroactive. Certainly

COngress would not bother to calculate the dollar amount of its additional liability exposure

under 107 (b) in the event of retroactiveapplication for calendar years 2012-2014 had it not

intended for this provision to be retroactive as well.4

the amicus brief of Mr. Daniels at page 7, note 2. Barbara King expressly adopts this portion of the amicus of

Daniels In support f her argument.

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II,

The Congressional Declaration that the WFEA is clar'jing is the

same as an Express Statement that it is Retroactive

The WPEA specifically recognizes the need for immediate retroactive application by

prOviding it is c1arii4ng in the preamble to the act. Congress has weighed the policy arguments

in favor of and against providing a full measure of relief to those who have come forward and

clone the right thing with the misinterpreted WPA offering them no protection. It has chosen to

favor the rights and protections of the valiant few who risked their careers than allow the

agencies to avoid being held responsible In a meaningful way. The WPEA specifically provides:

"To amend chapter 23 of title 5, United States Code,

clarify the disclosures of information protectedfrom

prohi bited personnel practices, require g 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'

This is a clear statement of Congressional intent. A legislative act that is announced by Congress

as cIai1&in is presumed to be applied retroactively. Congress is presumed to know of this well

understood legal maxim and used the shorthand version of a direct statement of iii!! retroactive

effect as to the entire act by providing it is clariIvinR in the preamble.

The express language in the preamble of the WPEA controls and makes clear it is

c1arffing in its pi.upose and intent to be retroactive in its application. See,supra at page 5.

Clarification is simply a short hand statement for the statement: "T}IIS ACT IS INTENDED TO

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BE APPLIED RETROACTIVELY". It is well settled that clarifying amendments to statutes are

afforded retroactive application as a matter of course and that statements of clarifying intent are

statements of implied retroactive intent. In Brown v Thompson, 374 F. 3d.254, 259 (4th Cir

2004), the court held:

1 71 In determining whether an or changes an existing law, a court, of

course1 looks to jli4 of intent made by the legislature that enacted the

dmebiL See, e g, Piamba Cones, 177 F 3d as 1284 ,.("LC]ourts mcy rely upon a

declaration by the enacting body that it intent is to (a) prior enactment. '). Liquilux, 979 F.2d at 890 (wing the lejislatur e 's expression ofwhat it understood itself

to be doing" to determine whether an is a

181Moct sign/Icant to our determination here, congress formally declared in the titles of

the relevant subsections ofMMA that the of MSP were "jftflg" and

"technical. See MMA § 3OJ'a,)-). And, the. legislature expressly provided in MMA that

these technical and be made effective 'as if included in the

enactment" of the MSP legislation preceding the 2989 1*flE MMA § 301(d)

From thzy recor4 it is plain that Congress intended that MMA be a

not a substantive ha2

Only if a statue fails to contain any statement of its intended temporal scope does the

presumption against retroactivity come Into consideration, Since the WPEA contains a clear

statement that it is clarifying, the presumption against retroactivity is inapplicable. See,

Fernandez- Vargas v Gonzales, 548 US 30, 126 S.Ct. 2422,2430(2006), where the court rejected

the application of the presumption against retroactivity station where Congress had provided an

indication of temporal reach of the legislation:

It is floE until a tattte is shown to have no firm provision about temporal reach but to

produce a effect when srraighforwardly applied that the presumption has its

work to do. See 511 U.S., at 280, 114 S.C1. 1483.

Given Congress' straight forward statement that the WPEA is clarifying, retroactive intent and

application are presumod. The analysis that is entailed when there is no statement of clarifying

intent, beginning with the presumption against retroactivity, is irrelevant. The entire discussion

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about whether an award of damages for emotional suffering could be deemed a windfall or an

unanticipated problem for agency budget planning is unnecessary as Congress commanded

retroactive application by its words. See also, Johnson v HTJD, 911 F. 2d. 1302, 1309 (gth Cir,

1990) [clarifying language is particularly persuasive evidence when retroactive intent is

ambiguous Or obscure].

Board need look no farther than the plain language used by Congress. The statute

provides it is clarifying. It is patent that the legislature intended to insure retroactive application

by announcing that the Act was clarjfying in the preamble. In the event the Board does elect to

engage in an unnecessary examination of legislative history of section 107 (b), the damages

section of the WPEA1 Barbara King adopts the excellent analysis and forceful arguments made

by the National Whistle blower Center and Dr. Rain Chatervedi.5

III.

Retroactive application of the WPEA is the law of the case

In theinstant action, the Agency asserted eight claims against Barbara King. Judge

Malouf found that the Agency failed to sustain its burden on all eight charges of misconduct.

Barbara King claimed in one of her affirmative defenses that she was retaliated against for

whistle blowing and that the charges of misconduct and related corrective actions constituted the

retaliation. All of the conduct by the Agency and Barbara King occurred during the ordinary

course of her duties.

5The traditional nalysls, applied when there is no clear statement of clarifying intent by Congress, leads

inexorably to the same conclusion: Congress Intended retroactivity.

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Specifically, Barbara King asserted that her disclosures of misconduct observed in the

course of her duties [investigating sexual abuse and providing and insuring support for its

victims] were protected disclosures under the WPA. Such a claim was barred by the Huffman

doctrine, which only protected disclosures based on observations that occurred outside of the

employee's ordinary duties. Since it is clear from her opinion that Judge Malouf was and is

acutely aware of the Huffman decision, it Is equally clear that Judge Malouf applied the

clarifications of the WPEA retroactively as to protected disclosures. While Judge Malouf

declined to follow Suit as to the WPBA's clarification of damages, retroactive application is now

the law of the case since the Agency did not appeal the judge's decision.

Judge Malouf should be applauded for recognizing the legislative mandate of

clarification and the corollary requirement of retroactive application of the WPEA. Had she not

done so, Barbara King would not have been able to assert her affirmative defenses and upon

prevailing on her claims against the agency, seek damages for retaliation for her whistleblowing.

The instant appeal and presentation of the issue is only possible because of Judge Malouf's

application of the WPEA retroactively to the disclosures. While Judge Malouf did not also

embrace an award of compensatory damages based on retroactivity concerns, the decision to

apply the WPEA retroactively to the disclosures creates the law of the case and precludes the

agency and Judge Malouf from refusing to apply the damages provision of the WPEA

retroactively,6

The law of the case doctrine exists to provide for consistency ofthe law within the same

action. It ensures that same result will be produced within the action. While ordinarily the

6ff the Board adopted the analysis based on the law of the case, the application of the WPEA and its express grant

of compensatory damages to other pending eases would be moot.

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doctrine does permanently fix the law of the case until an appellate decision is made within the

case, where neither party appeals a decision by the lower tribunal on an issue of' law, the doctrine

applies. In iCimberlin v Quinlan, 199 F. 3d. 496 (DC Cir. 1999), the court held that the

defendant's failure to appeal the trial court's ruling on an issue of law while the plaintiff

embraced the ruling created the law of the case on appeal. In reachln.g its holding, the court

explained:

The doctrine rests on a simple premise: "the same issue presented a

second time in the same case in the same court should lead to the same result." LaShawn

A. v. Barry, 87 F.3d 1389, 1393 (D.C,Cir.1996) (en banc,). Accordingly, a "legal decision

made at one stage of litigation, unchallenged in a subsequent appeal when the

opportunity to do so ex:ste4 becomes the fraW of the for flaure stages of the same

litigation, and the parties are deemed to have waived the right to challenge that decision

at a later time. u Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F. 2d 243,

250 (D C Czr 1987) The -14t may be revisited only If there is an intervening

change in the law or f the previous decision was "clearly erroneous and would work a

manifest injustice. "LaShawn A., 87 F. 3d at 1393 (internal quotation marks omitted).

Accord ,'Ilartford Ins. Co. v Socialist People 's Libyan Arab Jamahirya, 422 F. Supp. 2d 203, 207

(ID. DC 2006).

In the instant appeal, the Air Force did not appeal Judge Malouf's application of the

WPEA retroaetively as to Barbara King's disclosures and their status as protected disclosures

under the WPEA. The same disclosures were not protected under the V/PA by virtue of Huffman.

Thus, retroactive application of' the WPEA is the law of this case and this appeal. It follows that

the clarified definition of damages, specifically including "compensatory damages" for

emotional pain and suffering, is the law of this case regardless of this Board's decision as to all

other similarly situated cases.

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'vu

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Barbara King and those similarly situation will not receive a

windfall by virtue of retroactive application

The Air Force and other ainicus parties argue that retroactive application of the WPEA

should be denied because Barbara King and the other similarly situated parties would receive a

windfall or undeserved award of'damages. Moreover, they argue that retroactive application

creates a new liability cost for purposes of budgeting and payment that was not anticipated

because the awardable damages under the WPA had become nominal. In sum, the aniicus

arguing against retroactive application assert that until Congress said we really mean what we

said before they had no idea they might have to pay for the harm they caused.

As a matter of policy, the liability cost for the group of whistleblowers found to have

been discriminated or retaliated against, that which should have been anticipated that is claimed

to be a surprise, should fall on the government. The government not only should haveunderstood

what the WPA actually provided, but for nearly a decade the WPEA and its "compensatory

damages" provision was nearly enacted. The board should err on the side of those who suffered

the consequences of the government's conduct given the long period of warning given the

government that this day would come and its agencies finally held accountable.

As between two parties in a lawsuit, to the extent either could be construed to obtain a

windfall as a result of a damage award, the victim as opposed to the wrongdoer is the logical

choice to receive any claimed unanticipated or additional benefit. Hunter v Alli: Chalmer3 Corp.,

797 F. 2d. 1714. 1729

(2nd Cir 1986). In the instant appeal, the Air Force is the wrongdoer and

Barbara Kind is the victim. Thus, if there is an unanticipated windfall, Barbara King should

receive ft as opposed to the agency benefitting.

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It is well settled, however, that compensatory damages do not constitute a windfall to a

victim of whistle blower retaliation. Only where punitive damages are allowed and the amount of

the punitive damages awarded exceeds the legitimate purpose of deterrence can it be said to be a

"windfall" t the victim. Vasbinder v Scott, 976 F. 2d. 118 (2 Cir 1992). In the instant action,

the ViM provided for all "consequential" damages. A court decision interpreting this language

wrongfully excluded emotional pain and suffering from the category of "consequential" damages

awardable. That the WPEA clarifies what is to be included within the general ambit of

"consequential" damages does not make a potential award of emotional pain and suffering or an

award of other forms of economic damages a "windfalls'. Other than excess punitive damages,

only an award of damages that represents a double recovery for compensation already received

for the same harm can there be a windfall damage award. In re September / 1 Litigation v United

Airlines, 889 F. Supp. 2d 616,621 (SD NY 2012).

In the Instant action, the economic damages and emotional distress damages that Barbara

King seeks to make her whole have not already been awarded as some component of her back

pay award. By definition, an award of damages from either category to Barbara King cannot be a

"windfall". Doubtless, the agency and arnicus presenting the "windfall" argument misconstrue

the tenn in order to manufacture the appearance ofunfairness where there is none. That the WPA

is being returned to what it was intended to be originally perhaps is ending an unfair windfall In

favor of the government and its agencies. Since the inception of the WPA, the government and

its agencies have avoided paying for the consequences of their wrongftil conduct, This has been

corrected by the WPEA's clarification. The true windfall is the government's avoidance of

payments for consequential damages it caused for over a decade. The government and the

amicus asserting this argument avoid mention of all those who were destroyed by retaliation for

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whistle blowing and the fact they will never be able to recover what was taken from them.

V.

The instant action was "pending" on the announced

effective date of the WPEA and there is no issue as to

retroactive application

The WPEA expressly provides that it is to apply to:

"...all judicial proceedings initiated by or behalf of a

whistleblower and pending on or after that effective date"

As pointed out in the aniicussübmitted by Thomas Day, the word "pending" means cases

that were initiated before the effective date but remain active and in need of a final decision on

an issue yet undecided. Otherwise, there is no need for the word, Any case "initiated" after the

effective date is subject to the WPEAI but only if it remains pending. Adding the word pending

is unnecessary to include a case flied on or after the effective date within the scope of the

WPEA. 7Thus, the Board need only consider it some aspect of the instant action was pending on

the effective date or the case was finally and fWly decided.

That this case is before the Board upon certification for interlocutory appeals answers the

question. The case remained pending when the appeal was certified by Judge Malouf over

Amicus brief submitted by the VA argues strenuously that there is no clear announcement of statutory Intent

to mak the WPEA retroactive. In support of Its argument, it quotes only a particular section of the WPEA's

announcement of the effective date. omitting mention of the language concerning pending cases. Barbara King

agrees that the WPEA must first be reviewed and applied according t Its plain language. Roth the specific

expression of the application to all cases initiated and pending or the proclamation that the WPEA is clarifying are

expressions In plain language that mandate rejecting the VA'S arguments, As to the VA's argumentthat Congress

did not anticipate or provide for increased liability exposure, see note 4 Infra and the amicus of Daniels.

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Barbara King's objection. The issue of compliance with the back pay award is still pending. The

issue of consequential damages (out of pocket or pecuniary damages] remains to be decided as

well. Thus, it Is not simply the issue of compensatory damages that remains to be decided, but

other damage issues. By the express language of Congress, the instant action is included within

the scope of the WPEA because it was still pending on the effective date of the WPEA. In Re

Total Management LLC, 706 F. 3d. 245 (4th Cit. 2013) [statute must be construed to avoid

surplus or unnecessary language since all language is presumed to have a purpose]. The term

"pending" is rendered meaningless unless it refersto cases with issues still to be decided on the

effective date ofthe WPEA. 'Such a construction violates the principle rules ofstatutory

construction.

The announced concerns by the VAforfair warning and

harming individual property rights offederal employees are

without merit

In its arnicus brief, the VA not only argues that there exists no express Congressional

intent to apply the WPBA retroactively, but that by doing so a host of negative consequences will

occur including increased personal liability for government managerial employees who

committed the wrongful conduct. Again, the entire analysis is misplaced since an examination of

the effects of retroactive application can only take place in the absence of any stated intent by

Congress as to retroactive application. See, Fernandez-Vargczr v Gonzales, supra. As already

noted infra, the WPEA applies to Barbara King because: 1) the WPEA proclaims it is c1arif'ing,

which requires retroactive application; 2) King had claims that were pending on the effective

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date of the WPEA and; 3) Congress specifically contemplated and estimated its retroactive

liability costs, To the extent the arguments of the VA are considered by the Board, they are

without merit.

The VA argues that since agency employees have individual liability under the act that

they are entitled to fair warning as to increased if ability for damages and additional training on

how to avoid liability by and adhering to conduct within the law. It also proclaims that all federal

employees have a property interest in their employment which will be endangered by retroactive

application. The arguments are both an admission of agency defiance of the law as set forth in

the WPA based on calculated m netary considerations and are otherwise misplaced and lack

common sense.

The 'fair warning" argument admits that agencies and their managers have carefilly

calculated both the remote likelihood of a claim under the WPA being successful and the

nominal amount of any award. In the instant appeal, the argument is an admission that the Air

Force decided to violate the WPA and retaliate because the court decisions interpreting it

allowed them to do so with no consequence. If the court decisions had properly interpreted the

WPA, as it is now clarified in the WPEA, the VA argues that the Air Force would have respected

the law; But since the Air Force was encouraged to violate the WPA by the lack of any

meaningful remedy [money damages], they are not really at fault. The VA argues that by virtue

of the WPEA telling them, "OK, now we really mean it. don't do it", the agencies should not

have to pay the remedies contemplated under the WPA and now assured by the WPEA. The

admission that the VA and other agencies disrespected the WPA and had come to rely on lax

enforcement and nominal consequences is not a valid to reason to deny retroactive application of

what should have been the consequences for their actions in the first place.

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As to impacting a property interest, Federal agency employees do not have a property

interest in their employment. Rather, only a certain select group of public employees who have

employment rights created by state law have a property interest in their employment. mployees

who can be terminated in the discretion of their employer or without cause have no property

right. In McCain v Northwest Community Corrections Center, 440 F.3d. 320, 330 (6th Cir. 2006),

the court rejected the claim that the Plaintiff had a property right in his employment;

Although McClain has a right to due process under Regulation F, McClain does

nor hava properly interest that is protected by the Due Process ClauEe ofthe

Fourteenth Amendment to the Federal Constitution. Property interests are not

created by the Federal Constitution, but they are instead created by existing rules

or under;tcindlngs from an independent source such as state law. Bd. ofRegents

v. Roth, 408 (.1.5. 564, 577, 92 S.Ct. 2701, 33 L.Ea2d 548 (1972). State law

creates property interests by man (fearing "rules or mutually explicit

understandings that support [the plaInllfJ's] claim ofentitlement to the benefit and

that [the plaint (1]] might Invoke at a hearing. " Perry V. Sindermann, 408 US.

593, 601, 92 S'Cr. 2694, 33 L.Ed2d 570 (1972). No constitutional entitlement to

procedural due process can logically, arise when the decision-maker's power is

wholly discretionary. For instance in Bishop v. Wood, 426 U.S. 341, 345-4 7, 96

SC:. 2074, 48 LEd2d 684 (1976), the Supreme Court held that a city police

officer, who held his position at the will and pleasure ofthe city had no property

interest in his job even though he was entitled to certain procedural rights

provided by the city.

10 McClain i an unclass(fled employee, who does not have a protected property

interest in her continued employment. Regulation P states that all employees of a

community-based correctonalfacflhty are "unclass(fled "Unclass(fled"

employees, unlike "classfled" employees, serve at the pleasure of their

appointing authority, and may be dismissedfrom their employment with or

without cause, "Campbell v. Washington County Pub, Library Bd, of Ti's., No. 04-

CA 44, 2005 WL 1405789, at *2 (Ohio App. 4 ,Dist. June JO, 2005); see also

Christophel v. Kulculinsky, 61 F. 3d 479, 482 (6th Cir. 1995) (stating that

"[u]nclass(fied civil servants [under Ohio law] have no property right to

continued employment"). Because McClain may be dismissed without cause, she

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cannot "invoke at a hearing "a mutually explicit understanding that she was

entitled to retain her employment.2 Perry, 408 U.S. at 601, 92 S.CI. 2694, 33

L.Ed. 2d 570. Ii follows that McClain lacks a property interest for federal

procedural due process purposes, notwithstanding the fact that state law provide3

her someproceduraiprotection.

Thus, the premise upon which the VA's argument is made is false. Perhaps some federal

employees actually possess a property right In their employment, but it is the rare Federal

employee who does. It is rather absurd to believe that those who have used retaliation as a

management tool are unaware of potential repercussions of their retaliation. The perpetrators

have little or no real personal financial liability. Moreover, there has never been a change in

expectations for military and federal employees. Rather, the expectations they should have had

have not been enforced,

The argument is also an admission that the WPA as it has been applied has entirely failed

of its essential purpose. It is a direct admission that the WPA has failed to deter retaliation for

whistle blowing. Thus, the employees and the managers exist in an environment of no protection

for disclosure and so no fear of disclosure of their wrongful conduct and no fear of using

retaliation If an employee does disclose. The training given by the agencies to its personnel must

be such that it emphasizes the lack of any meaningful remedy or consequence to the managers

and that in practice managers have been free of any sanction from the agency. That the remedy

could now be more than nonilnal has finally caused the agencies to take notice and consider the

training needed to reduce wrongful conduct and eliminate retaliation. The admission that the

government agencies did not take their obligations seriously, did not train their managers to

avoid improper conduct and retaliation against someone who comes forward and reports

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wrongdoing in their department and ignored the WPA is not a valid reason to avoid retroactive

application. The Board should send the message that the WPA and its provisions were not to be

ignored and the wrongful conduct always had meaningfW protections. Adopting the agencies'

arguments is tantamount to admitting the WPA never existed.

The argument is based on the notion that Federal managerial employees who engage in

wrongful conduct will now finally either cease doing so or will think twice because their

personal liability is easier to prove and more substantiaL The argument ignores the reality that

virtually no employee subjected to wrongdoing is looking to the individual manager for payment.

The agency is the Source of payment. It is for the same reason that the argument that increased

liability warrants "fair warning and additional training". Federal decision makers well understand

that they will never pay an award. Pair warning and training to prevent the unfair Imposition of

increased personal liability is a call for a waste of federal dollars. If the managers who make the

decisions have not been adequately trained until now, it seems unlikely that they ever will be as

the VA does not even mention the implementatioti of a training program for the WPEA going

forward. It seems clear that the VA is either satisfied with the level of training or no additional

training is deemed necessary despite the VA's arguments. The entire argument is meritless.8

8 The amicus brief of the VA fails to address the specific mandate of clarification in the preamble of the WPEA.

While the amicus brief of Home Land Security echoes many of the arguments made by the VA, it mentions the

concept of clarification and Its presumption of retroacthilty, but argues Congress can't mean what It said for those

reasons that are Involved In an analysis of legislative intent when the express language does not so provide. The

argument ignores the simple truth that when Congress declares the statute Is clarifying, that this Is in itself a

statement of retroactive Intent. Thus, applying the plain meaning rule of Interpretation espoused by the amleus

briefs of both the VA and the Department of Homeland Security, the WPEA Is retroactive because it declares itself to be by using the word "clarifying" In the Act's preamble.

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.CONCLIJSION

PAGE 25/25

For all the foresaid reasons, the WPEA is a clarjflcation of the W1'A. There should be no

doubt that Congress intended that the WPEA is cJarfring, since it expressly so stated in the

preamble. The WPEA must be applied retroactively to afl cases pending and all outstanding

claims yet to be resolved, including the instant action.

Su

epb C Bird,

Counsel for Barbara King

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