MERIT SYSTEMS PROTECTION BOARD

THOMAS F. DAY (petitioner)

v. 

DEPARTMENT OF HOMELAND SECURITY (agency)

Amicus Brief

By Jacques A. Durr, M.D, Pro Se
STATEMENT OF INTEREST

Pursuant to the Notice of Opportunity To File Amicus Briefs

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in the matter of Thomas F. Day 

v. Department of Homeland Security, MSPB Docket Number SF–1221–12–0528–W–1, 

published in the Federal Register/Vol. 78, No. 27/Friday, February 8, 2013, by the Merit 

Systems Protection Board (MSPB or Board), I submit this amicus brief as a pro se an interested 

party. I wish also to speak on behalf of (probably hundreds) other aggrieved whistleblowers who 

have their respective cases working their slow pace up from the OSC to the MSPB, in their long 

cycles of dismissals, appeals and remands. Indeed, after having split, my initial case survived as 

docket # AT-1221-10-0216-W-1, but soon became docket # AT-1221-10-0215-W-2, and now is 

on remand back as docket # AT-1221-10-B-1. I have had the same AJ for the last 10 years and 

have not moved an inch. The full Board has remanded my case back2, after it sat dormant on 

appeal for more than one year:

“Because the appellant did not have a full opportunity to present evidence and argument 

proving by preponderant evidence that he reasonably believed that he made a protected 

disclosure in 2003 when he placed a non -functioning computer in the trash and left a 

message on the voicemail of the IRMS, the appellant is entitled to a supplemental hearing 

on that issue on remand if he so requests.”

CONTEXT

To a question by Mr. Padro from MSPB Watch about how MSPB uses information from cases 

(e.g., decisions, trends, and patterns) in its studies program, the MSPB recently wrote

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: 

 

1

http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=795188&version=798248&application=ACROBAT

2

http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=795244&version=798304&application=ACROBAT

3

http://mspbwatch.net/2013/02/15/is-a-conflict-of-interest-at-the-mspb-hampering-its-mission/
“As discussed below, MSPB’s studies program makes selective use of case decisions and 

data. First, we may use case decisions to guide research or support reports, when the 

decision has implications for broad civil service policy or practice. Examples of such use 

include — (...)

• Whistleblower Protections for Federal Employees4, which examined the challenges that 

a potential whistleblower might face when seeking legal protection from alleged 

retaliation for reporting wrongdoing. The report discussed relevant cases, with particular 

attention to the decision in Huffman v. Office of Personnel Management, 263 F.3d 1341 

(Fed. Cir. 2001)5, which restricted the Board’s jurisdiction in whistleblower cases. We 

note that the Whistleblower Protection Enhancement Act of 2012 effectively overrules 

Huffman, an important measure that is expected to broaden the Board’s ability to 

protect those who disclose wrongdoing from retaliation; (...)” [Emphasis added].

As an introduction to the above study MSPB, Susan Tsui Grundmann, MSPB Chair, wrote:

“This report spells out in greater depth the difficulties a potential whistleblower may face 

when navigating the law to seek protection from agency retaliation. I hope you will find 

this report useful as you consider issues affecting the Government’s ability6to protect 

employees who disclose fraud, waste, abuse, and other wrongdoing within the Federal 

Government.” [Emphasis added].

(...)

The key role entrusted by Congress in the MSPB is to uphold merit systems principles. This role 

is not always as clear as it ought to be, as illustrated in the above references to the “ability” of the 

Board, versus that of the Government “to protect whistle-blowers.” This may be why the Chair 

of the MSPB, in the introduction to that above referenced study, felt compelled to caution that:

 

4

http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=557972&version=559604&application=ACROBAT

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i.e., stop splitting hairs as to whether a disclosure was made to individuals within the chain of command or as 

part of an assignment, or made directly to the wrongdoer, or to someone who already knew of it, or was made 

about a wrongdoer who is not within the chain of command, etc.... 

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Note the apparent contradiction in interests. Indeed, are we talking about the Government’s ability, or, as above, 

the Board’s ability to protect whistle-blowers? 
“This report is presented as a part of the MSPB’s statutory obligation to study and report 

upon prohibited personnel practices and the health of the merit systems. While we hope 

that this report will be useful to potential whistleblowers, their advocates, Federal 

agencies, the U.S. Congress, and the President, this report is not an official “opinion” of 

the Board in the adjudicatory sense. We recommend that any party appearing before the 

MSPB rely directly upon the pertinent statutes, regulations, and legal precedents.

Because of the MSPB’s role as the adjudicator of whistleblower retaliation claims, this 

report differs from most other reports issued under the MSPB’s studies authority. Most 

MSPB studies include an evaluation of the information being provided and 

recommendations for the improvement of laws, regulations, managerial practices, or 

other aspects of the civil service in keeping with the merit principles. However, in order 

to preserve our neutrality as adjudicators, we have limited our evaluations in this 

particular report to those that are necessary to help the reader understand the 

information being provided, and we have not included recommendations for changes to 

Federal laws, regulations, or policies. The absence of recommendations in this report 

should not be interpreted as support for – or opposition to – any part of the laws as they 

are currently written, any decision by the Board or the Federal Circuit interpreting those 

laws, or any bill that seeks to amend the laws pertaining to Federal whistleblowers.” 

[Emphasis added]

Finally, in the conclusion of that study, the MSPB remarks that: 

“It is not surprising that Congress has seen the need to amend whistleblower laws in the 

past, and has considered doing so again in recent years. It is challenging to create a set 

of rules that carefully balances management rights with the public’s interest in 

protecting whistleblowers. A perfect balance between management rights and 

whistleblower protections may never be fully achieved, but we believe that the best 

possible balance is worth pursuing. As the Senate noted when the CSRA was 

enacted, and whistleblower protections were put into the law for Federal employees 

for the first time: “Protecting employees who disclose government illegality, waste, 

and corruption is a major step toward a more effective civil service.”
However, the Federal Circuit, the MSPB’s reviewing court has recently reversed a MSPB 

decision, noting in Whitmore v. Department of labor7(No. 2011–3084.-- May 30, 2012) that:

“Despite Robert Whitmore's highly unprofessional and intimidating conduct, which may 

well ultimately justify some adverse personnel action, he is nevertheless a bona fide 

whistleblower. Mr. Whitmore is therefore entitled to the full scope of protection afforded 

by the Whistleblower Protection Act, which ensures for him and whistleblowers 

everywhere that they need not fear retribution for disclosing to the public such vital 

information concerning an agency or official as “a violation of any law, rule, or 

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

substantial and specific danger to public health or safety.” 5 U.S.C. § 2302(b)(8). 

Congress decided that we as a people are better off knowing than not knowing about such 

violations and improper conduct, even if it means that an insubordinate employee like 

Mr. Whitmore becomes, via such disclosures, more difficult to discipline or terminate. 

Indeed, it is in the presence of such non-sympathetic employees that commitment to the 

clear and convincing evidence standard is most tested and is most in need of 

preservation.”

Obviously, when Congress first enacted the WPA, and then added amendments, including the 

latest WPEA of 2012, it did it more out of concerns for “we as a people,” and needed whistleblowers who deserve protection, rather than out of concerns for the Government. This view is 

clearly expressed by the Fed. Cir., in the Whitmore precedent. At the limit, we as a people are 

still better off knowing than not knowing about such violations and improper conduct, even if 

this means that it will be more difficult for the agency to discipline or terminate an employee. It 

has become a self-evident truth that in our society, the interests of we as people takes priority 

over the interests of an agency. This is why the Fed. Cir. has reversed the MSPB in Whitmore. 

 

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http://www.cafc.uscourts.gov/images/stories/opinions-orders/11-3084.pdf
Finally, in Matthew v. MSPB (2012-3162, Decided: January 16, 2013) the Federal Circuit wrote:

“The Board appears to have also concluded that Nasuti’s disclosures were inadequate 

because they were made to persons without authority to address the problem. See IRA 

Decision II, at 16-17. Since the Board’s decision, however, Congress has enacted the 

Whistle-blower Protection Enhancement Act of 2012, Pub. L. No. 112-199, 126 Stat. 

1465, with the intention of broadening the scope of protected disclosures under the WPA. 

Id. § 101, 126 Stat. at 1465-66; see also S. Rep. No. 112-155, at 5 (2012). We think that 

the Board should decide in the first instance whether the new statute applies 

retroactively and whether, if so, Nasuti has alleged a protected disclosure under the 

new statute. We therefore vacate the Board’s conclusion that it lacked jurisdiction over 

this one aspect of Nasuti’s IRA appeal.” [Emphasis added]

Even though this is a non-precedential decision regarding the particular case in front of the 

Federal Circuit court, the above remark is nevertheless independent of the case in front of that 

court, and therefore can be quoted and use for its persuasive weight. Essentially the Federal 

Circuit defers to the MSPB regarding whether the WPEA should be applied retroactively. In last 

analysis, it is the province of the MSPB to decide on merit systems principles, Congress has 

entrusted the MSPB with this mission. Since the MSPB Chair has expressed the genuine desire 

to improve the situation created for example by loopholes like in Huffman v. Office of Personnel 

Management, and since the MSPB has now received the green-light from the Federal Circuit to 

act on this and other issue of importance to the MSPB, the MSPB should not delay rendering the 

proper ruling, and thereby uphold merit systems principles.
Friday, February 8, 2013, the Board issued a Notice of Opportunity to File Amicus Briefs 

(''Notice") in the matter of Thomas F. Day v. Department of Homeland Security, MSPB Docket

Number SF–1221–12–0528–W–1, which is currently pending before the Board on interlocutory 

appeal. The administrative judge certified for interlocutory review the question of whether the 

provisions of the Whistleblower Protection Enhancement Act of 2012 (WPEA), 112 Public Law 

199, may be applied retroactively to pending cases involving conduct occurring prior to its 

effective date.