UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

OFFICE OF REGIONAL OPERATIONS 

THOMAS F. DAY, 

Appellant, 

v. 

DEPARTMENT OF HOMELAND 

SECURITY, 

Agency. 

DOCKET NUMBER 

DC-1221-12-0528-W-1 

DATE: December 14, 2012 

ORDER AND CERTIFICATION FOR INTERLOCUTORY APPEAL 

The appellant has filed an individual right of action (IRA) appeal, alleging 

that the agency took a number of personnel actions in retaliation for 

whistleblowing activity. As set forth in my June 28, 2012 jurisdictional Order, to 

establish Board jurisdiction over such an IRA appeal, the appellant must raise 

nonfrivolous allegations that: (1) he engaged in whistleblowing activity by 

making a protected disclosure under 5 U.S.C. § 2302(b)(8), i.e., that he disclosed 

information that he reasonably believed evidenced a violation of law, rule, or 

regulation, gross mismanagement, a gross waste of funds, abuse of authority, or a 

substantial and specific danger to public health or safety; (2) based on the 

protected disclosure, the agency took a personnel action as defined by 5 U.S.C. 

§ 2302(a)(2); and (3) he raised the whistleblower issue before the Office of 

Special Counsel (OSC), and proceedings before OSC have been exhausted. Willis 

v. Department of Agriculture, 141 F.3d 1139, 1142 (Fed. Cir. 1998). 

The appellant provided a copy of a whistleblowing complaint and 

supporting documentation filed with OSC on September 30, 2011. AF, Tab 1, 
2

Vols. 1-9. The appellant also provided a copy of OSC’s March 16, 2012 notice 

that it was terminating its inquiry regarding his complaint. AF, Tab 1, Vol. 1. 

In his complaint to OSC, the appellant listed, among other alleged 

disclosures, his July 1, 2010 verbal communication with Scott Palmer, Chief of 

the Office of Contract Operations. The appellant explained that he became aware 

of another employee’s disclosure of unallowable costs regarding the acquisition 

of a Maritime Patrol Aircraft (MAP), and that he then 

disclosed his concurrence with Mr. Wood’s position to Mr. 

Palmer...in an undocumented meeting in Mr. Palmer’s office. Since 

Mr. Day had been the Contract Price/Cost Analyst (CPCA) for this 

project, he was aware of the potential impact on USCG mission 

requirements and felt that Mr. Palmer, as the Office Chief, should be 

made aware of this potential problem. This was an informational 

meeting without an effort to obtain Mr. Palmer’s agreement with Mr. 

Wood’s position. 

AF, Tab 1, Vol. 3, p. 54. The appellant further stated that, as a result of this 

disclosure, he was subjected to retaliation by members of his “supervisory chain,” 

who were implicated in the alleged improper costs associated with the acquisition 

of the MAP. 

Although the appellant has nonfrivolously alleged that his July 1, 2010 

communication to Mr. Palmer disclosed information he reasonably believed 

evidenced a violation of law, because it appeared this disclosure might 

nonetheless be excluded from protection under the Whistleblower Protection Act 

(WPA) pursuant to principles set forth by the U.S Court of Appeals for the 

Federal Circuit in Huffman v. Office of Personnel Management, 263 F.3d 1341

(Fed.Cir. 2001), I directed the appellant to provide evidence and argument on this 

question by Order dated November 20, 2012. Both parties have responded and I 

have considered their submissions. 

In Huffman, the Court held that disclosures made as part of an employee’s 

normal duties, and through normal channels, are unprotected under the WPA, 

explaining that “[w]hile the language of the Act is ambiguous as to whether 
3

normal duties are covered, the core purposes of the WPA are simply not 

implicated by such reporting. Extending the WPA’s protections to such situations 

would be inconsistent with the WPA’s recognition of the importance of fostering 

the performance of normal work obligations and subjecting employees to normal, 

non-retaliatory discipline.” Huffman, 263 F.3d at 1352. 

The Court further found that complaints made to supervisors regarding 

their own alleged wrongdoing also do not constitute protected disclosures WPA, 

explaining as follows: 

When an employee reports or states that there has been misconduct 

by a wrongdoer to the wrongdoer, the employee is not making a 

“disclosure” of misconduct. If the misconduct occurred, the 

wrongdoer necessarily knows of the conduct already because he is 

the one that engaged in the misconduct. The policies of the WPA 

hardly require a different result. The purpose of the statute is to 

encourage disclosures that are likely to remedy the wrong. Horton, 

66 F.3d at 282; Willis, 141 F.3d at 1143. The wrongdoer is not such 

a person. Extending the WPA to cover reports to a supervisor of the 

supervisor’s own misconduct would also have drastic adverse 

consequences. As we stated in Willis, “[d]iscussion and even 

disagreement with supervisors over job-related duties is a normal 

part of most occupations.” Willis, 141 F.3d at 1143. If every 

complaint made to a supervisor were considered to be a disclosure 

protected under the WPA, virtually every employee who was 

disciplined could claim the protection of the Act. Although 

Congress intended that the WPA’s coverage be broad, we think it 

unlikely that Congress intended the Act to extend that far, and we 

hold that it did not. 

Id. at 1350. 

Accordingly, to the extent the appellant’s July 1, 2010 communication with 

Mr. Palm constitutes a disclosure made as part of his normal duties, through 

normal channels, and to an alleged wrongdoer, it is not protected under the WPA. 

In his July 13, 2012 response on jurisdiction, the appellant appeared to indicate 

his own belief that this communication was part of his normal duties: 

I had been assigned as the [Contract Price/Cost Analyst] until I was 

assigned to the NSC5 LLTM evaluation team. I was never removed 
4

from the MPA evaluation team and was able to work on this 

evaluation or any other acquisition if time permitted. After he came 

onboard, Mr. Wood was assigned to the MPA evaluation team and 

shortly afterwards obtained direct confirmation from DCAA that the 

offeror had included unallowable costs in their proposal. As coworkers assigned to the same evaluation, it was appropriate for Mr. 

Wood to discuss his findings with me....I concurred with Mr. 

Wood’s findings and was sufficiently concerned that I reported the 

problem of the unallowable costs to Mr. Palmer....When Mr. 

Palmer...assigned me to the NSCF LLTM evaluation in December of 

2010, he did not remove me from the MPA evaluation....As late as 

March of 2010, Mr. Palmer was aware that I was still being asked to 

perform work on the MPA....Since I was never removed from the 

MPA evaluation, I was acting within the scope of my assignments to 

consult and discuss the issue of the unallowable costs with Mr. 

Wood. Again this confirms that my management chain to include 

Mr. Palmer, was fully aware of my involvement with the MPA. 

AF, Tab 11, p. 7-10. 

 In his November 30, 2012 response to my November 20, 2012 Order, the 

appellant acknowledged that “[t]o the casual observer,” this prior description of 

his disclosure “would indicate that I was acting in the capacity of my normal 

duties....” AF, Tab 15, p. 16. The appellant argues, however, that in passing on 

the disclosure first made by Mr. Wood, he was, in fact, acting outside his normal 

duties, citing the difference between “what it means to be assigned to a project 

and what it means to be assigned to a Source Selection.” Id. The appellant 

further explained that “[a] Source Selection is a layered group of individuals with 

different tasking. The function of the Contract Price/Cost Analyst is to chair the 

Cost/Price Evaluation Team (CPET) with the duty to evaluate the price/cost 

proposals in response to a solicitation. Mr. Wood was serving in this capacity for 

the MPA.” Id. at 16-17. The appellant indicated that although he had himself 

formerly been the Contract Price/Cost Analyst for the MPA, and continued to be 

part of the “Source Selection” for that project, the issue of “unallowable costs” 

was not “source selection information,” and therefore it would not have been 
5

customary for him to have discussed it with either Mr. Wood, or, subsequently, 

with Mr. Palmer. Id. at 17-18. 

The appellant has, thus far, failed to make clear whether or not, given the 

nature of his asserted role with the MPA project, his July 1, 2010 disclosure was 

made pursuant to his normal duties, and/or through normal channels. Clouding 

matters further, the appellant himself elsewhere argues that this disclosure, 

alerting his supervisor that “a potential violation of law was at hand” in time to 

avert it, “should be viewed appropriately as the performance of one’s duties.” Id. 

at 7. 

The question of whether Mr. Palmer constitutes the alleged “wrongdoer,” 

with respect to the appellant’s disclosure of unallowable costs associated with the 

MPA, remains similarly opaque. The appellant stated that “[t]he agency has not 

provided any conclusive evidence that Mr. Palmer was not the “wrongdoer”. AF, 

Tab 15, p. 7. However, the appellant bears the burden on this and other 

jurisdictional issues. Moreover, although the appellant cited the agency’s 

“ludicrous misrepresentation that a supervisor is a ‘wrongdoer’ merely by being a 

supervisor,” id., the agency, in fact, plausibly asserted that Mr. Palmer would 

have been implicated in the appellant’s disclosure of unallowable costs, given his 

status “as the highest Supervisory Contract Specialist in CG-912,” responsible for 

all projects within that group, including the MPA project. AF, Tab 14, p. 5. 

On the other hand, the appellant indicates that, at the time of his July 1, 

2010 disclosure, Mr. Palmer was unaware that unallowable costs had been 

authorized as part of the MPA contract. AF, Tab 15, p. 7. If so, and even 

assuming it is the appellant’s position that Mr. Palmer failed to avert this alleged 

violation, and subsequently played a part in the retaliatory actions taken against 

him, he would not constitute the alleged wrongdoer with respect to the 

appellant’s July 1, 2010 disclosure. 

As noted, the appellant bears the ultimate burden of proving by 

preponderant evidence that his July 1, 2010 communication with Mr. Palmer is 
6

protected under the WPA. For purposes of establishing Board jurisdiction over 

this and other elements of his IRA appeal, however, the appellant need only raise 

nonfrivolous allegations; moreover, any doubt or ambiguity regarding such 

allegations should be resolved in favor of finding jurisdiction. See Ingram v. 

Department of the Army, 114 M.S.P.R. 43, 48 (2010). Accordingly, given the 

degree of ambiguity which persists regarding these questions, I find that the 

appellant has nonfrivolously alleged that this July 1, 2010 communication 

constituted a protected disclosure. 

As I advised the parties, Congress amended the WPA through passage of 

the Whistleblower Protection Enhancement Act of 2012 (WPEA), which was 

signed into law on November 27, 2012. Among other provisions, the WPEA 

expressly repeals the above-referenced disclosure restrictions set forth by the 

Federal Circuit in Huffman. Accordingly, I must determine whether its terms, 

including those overturning the Huffman principles, apply retroactively to 

pending cases, such as this one, or only to those involving conduct which 

occurred on or after the Act’s effective date. Put another way, the question is 

whether the Board should apply the law in effect at the time of the alleged 

retaliation at issue in this appeal, or the law in effect at the time that appeal is 

decided. 

Section 202 of the WPEA, entitled “Effective Date,” provides as follows: 

“Except as otherwise provided in section 109, this Act shall take effect 30 days 

after the date of enactment of this Act.” Section 109, states that its provisions, 

governing “Prohibited Personnel Practices Affecting the Transportation Security 

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

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

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

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

retroactive operation of its terms. 
7

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

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

229 (1994), which involved amendments to the Civil Rights Act of 1964 by the 

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

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

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

the Court noted, “[t]hat language does not, by itself, resolve the question before 

us. A statement that a statute will become effective on a certain date does not 

even arguably suggest that it has any application to conduct that occurred at an 

earlier date.” Id. 

In resolving the question of retroactivity left open by the 1991 Act itself, 

the Court first addressed the need to reconcile the “apparent tension” between 

generally applicable rules of statutory interpretation: 

The first is the rule that “a court is to apply the law in effect at the 

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

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

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

“congressional enactments and administrative rules will not be 

construed to have retroactive effect unless their language requires 

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

208 (1988). 

Id. at 264. 

The Court noted the canon of interpretation in favor of retroactive 

application, cited by Professor Llewellyn, which states that “remedial statutes are 

to be liberally construed and if a retroactive interpretation will promote the ends 

of justice, they should receive such construction. Id. at 262, n.16 (quoting 

Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or 

Canons about How Statutes are to be Construed, 3 Vand. L. Rev. 395 (1950). 

The Court further acknowledged that “[i]t will frequently be true, as petitioner 

and amici forcefully argue here, that retroactive application of a new statute 

would vindicate its purpose more fully.” Id. at 285. The Court also noted the 
8

principle that “the government should accord grace to private parties 

disadvantaged by an old rule when it adopts a new and more generous one.” Id.

at 276. 

 The Court found, however, that such considerations were not sufficient to 

rebut the presumption against statutory retroactivity, absent express language 

dictating that result, a principle which is 

deeply rooted in our jurisprudence, and embodies a legal doctrine 

centuries older than a Republic. Elementary considerations of 

fairness dictate that individuals should have an opportunity to know 

what the law is and to conform their conduct accordingly; settled 

expectations should not be lightly disrupted. For that reason, the 

‘principle that the legal effect of conduct should ordinarily be 

assessed under the law that existed when the conduct took place has 

timeless and universal appeal.’ 

Id. at 265 (quoting Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S 

827, 855 (1990)). 

The Court further held that even in an era where “constitutional 

impediments to retroactive civil legislation are now modest,” and courts are 

prepared to approve such legislation where that is the clear Congressional intent, 

....prospectivity remains the appropriate default rule. Because it 

accords with widely held intuitions about how statutes ordinarily 

operate, a presumption against retroactivity will generally coincide 

with legislative and public expectations. Requiring clear intent 

assures that Congress itself has affirmatively considered the potential 

unfairness of retroactive application and determined that it is an 

acceptable price to pay for the countervailing benefits. Such a 

requirement allocates to Congress responsibility for fundamental 

policy judgments concerning the proper temporal reach of statutes, 

and has the additional virtue of giving legislators a predictable 

background rule against which to legislate. 

Id. at 272-273. 

Consistent with these findings, the Court set out a framework for 

determining whether a statute should be given retroactive effect. The Court 

stated that a tribunal must first determine whether Congress has expressly 

prescribed the statute’s temporal reach. Id. at 280. If the new statute does not 
9

contain any such express prescription, the tribunal must determine whether it 

would have actual “retroactive effect,” that is, whether its provision “attaches 

new legal consequences to events completed before its enactment[,]” id. at 270, 

or would “impair rights a party possessed when he acted, increase a party’s 

liability for past conduct, or impose new duties with respect to transactions 

already completed.” Id. at 280. The Court concluded that if retroactive 

application of the new statute would have the above-cited effects, it would apply 

“our traditional presumption” against retroactivity, “absent clear congressional 

intent favoring such a result.” Id. See also Parker v. Office of Personnel 

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

As previously noted, the WPEA contains no express prescription of 

retroactivity. Its legislative history, moreover, is contradictory and inconclusive. 

The version passed by the House of Representatives, House Report 3289, states 

that “[r]ights in this Act shall govern legal actions filed after its effective date,” 

expressly declaiming any retroactive application. By contrast, the Senate’s 

version, Senate Report 743, states as follows: 

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. Such application is expected and appropriate 

because the legislation generally corrects erroneous decisions by the 

MSPB and the courts; removes and compensates for burdens that 

were wrongfully imposed on individual whistleblowers exercising 

their rights in the public interest; and improves the rules of 

administrative and judicial procedure and jurisdiction applicable to 

the vindication of whistleblowers’ rights. 

 The Senate Report’s use of the phrase, “proceedings initiated by or on 

behalf of a whistleblower and pending on or after that effective date,” is difficult 

to parse. Nonetheless, read together with its reference to correcting erroneous 

decisions and removing wrongfully imposed burdens of the past, broadly 

suggestive of an intent to give the Act a wider, rather than a narrower temporal 
10

scope, I find it was indeed designed to apply the Act retroactively to pending 

cases involving conduct occurring prior to its effective date. As such, however, it 

remains but one legislative precursor of the actual Act, and one which is opposed 

on this point by the express terms of the other legislative version. As the Court 

noted in Landgraf, “[s]tatutes are seldom crafted to pursue a single goal, and 

compromises necessary to their enactment may require adopting means other than 

those that would most effectively pursue the main goal.” Landgraf, 511 U.S. at 

286.1

 Given this ambiguous history, and the absence of express language in the 

WPEA itself, I find that it evidences no clear Congressional intent in favor of 

retroactivity. 

 I further find that the WPEA, in eliminating the disclosure restrictions set 

forth in Huffman, enlarged the category of conduct subject to the WPA, thereby 

“attach[ing] new legal consequences to events completed before its enactment.” 

Accordingly, I conclude that its application to pending cases, such as the present 

one, would have actual retroactive effect, as defined by the Court in Landgraf, 

and that therefore the presumption against statutory retroactivity applies in this 

case. See Caddell v. Department of Justice, 96 F.3d 1367, 1371 (Fed.Cir. 

1996)(The 1994 amendment to the WPA, which included decision to order 

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

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

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

 

1

As also previously noted, the WPEA expressly provides that its provisions take effect 

30 days after the date of enactment, except for TSA cases, which are governed by the 

WPEA immediately upon enactment. If Congress intended the WPEA to apply 

retroactively to all pending appeals, there was seemingly no reason to include a separate 

provision making it effective in TSA cases 30 days sooner than other cases. See Special 

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

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

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

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

L.Ed2d 339 (2001)). 
11

against statutory retroactivity therefore barred application of amended version of 

WPA in pending case). See also Lapuh v. Merit Systems Protection Board, 284 

F.3d 1277, 1281-82 (Fed.Cir.2002)(Veterans Employment Opportunities Act of 

1998 (VEOA), in creating new procedures for veterans seeking redress for 

violations of veterans’ preferences, “impose[d] new duties with respect to 

transactions already completed,” and therefore presumption against retroactivity 

precluded Board jurisdiction over alleged violations of veterans’ preferences 

occurring prior to effective date of VEOA); Styslinger v. Department of the Army, 

105 M.S.P.R. 223, 244 n.12 (2007)(In the absence of clear Congressional intent 

to the contrary, presumption against retroactivity governed 2004 amendments to 

VEOA, affording broader class of veterans the right to file complaints with the 

Department of Labor, as such amendments, if applied retroactively, would 

“impose new duties with respect to transactions already completed”). Compare 

Watkins v. U.S. Postal Service, 85 M.S.P.R. 141, 144-45 (2000)(Rule in effect at 

time of Board decision, that there is no deadline for filing a claim under the 

Uniformed Services Employment and Reemployment Rights Act of 1994 

(USERRA) with the Board, did not constitute an impermissible retroactivity when 

applied to conduct occurring prior to the effective date of that rule, because it 

would not “impair rights a party possessed when he acted, increase a party’s 

liability for past conduct, or impose new duties with respect to transactions 

already completed”). 

As I advised the parties in my November 20, 2012 Order, my ruling 

regarding the retroactive applicability of the WPEA is subject to certification for 

interlocutory review by the Board, upon my own motion, or the motion of either 

party. Such an interlocutory appeal is appropriate for review of a ruling 

involving “an important question of law or policy about which there is substantial 

ground for difference of opinion[,]” and where “[a]n immediate ruling will 

materially advance the completion of the proceeding....” 5 C.F.R. § 1201.92(a), 

(b). 
12

In their responses, both parties requested that this issue be certified to the 

Board for interlocutory review. AF, Tabs 14 and 15. Because I find the question 

of whether the provisions of the WPEA, including its elimination of the Huffman

disclosure criteria,2

 may be applied retroactively to pending cases involving 

conduct occurring prior to its effective date, is appropriate for review under the 

criteria set forth under 5 C.F.R. § 1201.92, the parties’ joint request for 

certification of an interlocutory appeal is GRANTED. 

Pursuant to 5 C.F.R. § 1201.93(c), I hereby stay all further proceedings 

while the interlocutory appeal is pending with the Board. 

 

FOR THE BOARD: _______/S/______________ 

Ronald J. Weiss 

Administrative Judge 

 

2

 “[T]here is no special reason to think that all the diverse provisions of [an Act] must 

be treated uniformly...” when considering their retroactive effect. Landgraf, 511 U.S. 

at 280. “To the contrary, we understand the instruction that the provisions are to “take 

effect upon enactment” to mean that courts should evaluate each provision of the Act in 

light of ordinary judicial principles concerning the application of new rules to pending 

cases and preenactment conduct.” Id. 
CERTIFICATE OF SERVICE 

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

day to each of the following: 

Appellant 

Electronic Mail Thomas F. Day 

Agency Representative 

Electronic Mail Lorna J. Jerome 

Department of Homeland Security 

Commandant (CG-0944), Attention: Paralegal, U. S. 

Coast Guard, 

2100 2nd Street, SW, STOP 7121 

Washington, DC 20593-7121 

December 14, 2012 /S/ 

(Date) Talethia Owens 

Paralegal Specialist