UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOAR])

THOMAS F. DAY,

Appellant, V.DEPARTMENT OF

HOMELAND SECURITY,

Agency

DOCKET NUMBER

DC-1221-12-0528-W-1

February 28,2013

AMICUS BRIEF ON BEHALF OF BROWN CENTER FOR PUBLIC

POLICY AKA WHISTLEWATCH.ORG AS AMICI CURIAE

BRIEF OF AMICUS

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TABLE OF CONTENTS

1. Table of Contents ...................................................................... page 2

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

3. Opening Statement .................................................................... page 4

4. Identity of Amicus ...................................................................... page 4

5. Interest of Amicus ...................................................................... page 5

6. Statement of the Issue ................................................................. page 7

7. Legislative History ..................................................................... page 7

8. Argument............................................................................... page 10

9. KingCase .............................................................................. page 13

10. Clarification, Legislative Intent and Retroactivity................................ page 16

11. CONCLUSION ........................................................................ page 21

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INDEX OF AUTHORITTY

CASES.

Bohac v Department ofAgriculture, 239 F. 3d 1334 (Federal Circuit 2001)............ 18,19

Department of Substances Control v Interstate Non-Ferrous Corp. 99 F. Supp. 2d 1123 (ED Cal

2000) .................................................................................................. 18

Huffinan v. Office of Personnel Management, 263 F.3d 1341 (Fed. Cir 2001)...... 4,7, 11, 17 19

Barbara R. King v Department of the Air Force, DA 0752-09-0604-P-I ......... 12, 13, 14, 16

In re Park Dash PoihtLP, 152 BR 300 (WD Wash. 1991) ...................................... 18

Leshinsky v Televent GIT, S.A., 873 F. Supp 2d 582 (DC NY 2012) ............................ 18

LussiervDugger,904F. 2d661 (llthCir 1990)...................................................18

Marano v Department ofJustice, 2 F 3d 1137, 1138 (Fed Cir 1993) ........................... .8

People v. b'Rourke, 124 Cal. App. 752, 759 (Cal. App. 1932)....................................... 11

Piamba Cortes vAmericanAirlines, Inc. 177 F 3d 1272 (11th 1999) ......................... 18, 19

USvMorgan, 376 F. 3d 1002 (9th Cir 2001) ....................................................... 18

Watson v. Department of Justice, 64 F.3d 1524, 1527 n. 3 (Fed.Cir.1995)..................... 8

STA TUTES AND RELA TED AUTHORITY:

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

5 U.S.C. § 552(a)(4)(A)(ii)(II)........................................................................ 4

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

5 C.F.R. cc 2635. 5 C.F.R. çS 3801 and 28 C.F.R. 45 ................................................... 6

Federal Register, Vol. 78, No. 27, Feb. 8, 2013 ........................................................... 7

PublicLaw 107-174 .............................................................................................. 5 Executive Order 12674 ........................................................................................... 10

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OPENING STATEMENT

The Whistleblower Protection Enhancement Act (WPEA) should be applied retroactively

to. provide the protections that are desperately needed by. Federal Government Whistleblowers.

Since Congress intended the Act to be clarifying, it is presumptively retroactive. Public Law

112.122, Stat. 1376.

IDENTITY OF THE AMICUS

Amicus, 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. We

engage 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)(II) and is exempt from fees for Freedom of Information Act (FOIA) requests

because we disclose information on government performance, oversight responsibilities and

costs in the public interest. Further, Wh.istlewatch.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.

The Chief Executive Officer, Evelynn Brown, J.D., LL.M, is a former federal employee

of the Department of Health and Human Services (HHS), well known whistleblower and

globally recognized expert. Ms. Brown suffered whistleblower retaliation in the wake of making

protected disclosures and was subjected to the Huffinan decision by the Office of Special

Counsel (OSC) in 2008. Huffinan v. Office ofPersonnel Management, 263 F.3d 1341 (Fed. Cir

2001). (See Exhibit A).

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The statutory reversal of Huffman is clearly intended and well articulated by Congress

within the plain language of the WPEA. The retroactive application of the WPEA to pending

cases is the issue now before the court. Whistlewatch.org advocates for the immediate

retroactive application of the WPEA to all pending cases and all cases and/or claims that may be

adjudicated before all bodies with judicial capacity, in the interests ofjustice.

INTERESTS OF AMICI CURIAE

Whistlewatch.org has a vested interest in these proceedings because the organization was

founded to prevent injustice in the employment law arena for government and industry workers.

Our team of ethics and legal professionals take referral cases including those involving federal

employees before the Office of Special Counsel, hereafter OSC and Merit System Protection

Board, hereafter, MSPB. Our role and obligation is also to educate the public on issues related to

employment law violations and the costs to tax payers of gross waste when discrimination and

whistleblower retaliation occurs. These financial aspects are of national importance and cannot

be underestimated considering the weakened state of the U.S. economy.

During 2011-2013, Whistlewatch.org conducted a massive FOJA process to all cabinet

level agencies. What was revealed in the information we received was very disturbing. Inter

alia 2 top level agencies with missions to protect the public, the Department of Health and

Human Services (HHS) and Housing and Urban Development (HUD) had not completed annual

reports to Congress, under Section 203 of The Notification and Federal Employee

Antidiscrimination and Retaliation Act of 2002, a/k/a No Fear Act, that seeks to discourage

federal managers from engaging in unlawful discrimination and whistleblower retaliation.

Public Law 107-174. Of note, HHS had not completed any annual reports for 10 years, the

entire time the law had been in effect Ms. Brown made a disclosure to the OSC concerning this

matter. On January 25, 2013, OSC issued a letter to Brown that there was a "substantial

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likelihood" that the information disclosed was a "violation of law, rule or regulation." An

ongoing investigation exists. However, no response to the letter from OSC to HHS has been

received to date. (Exhibit B).

Retaliation for whistle blowing and related Equal Employment Opportunity Commission

(EEOC) discrimination is a total waste of tax payer money, particularly when the federal

government is mandated to be a model employer for industry. Federal employees who report

wrongdoing within the government are brave individuals who speak upto protect the public.

Their reward is punishment: to become the subject of prohibited personnel practices pursuant to

5 U.S. C. 2302, which include locking the whistleblower in the vacuum of workplace isolation

chambers when they report violations of law, rule and regulations. Federal management then

demotes and/or strips the employee from their duties and in many cases, forces the

whistleblowers out of federal service using trumped up or manufactured charges, all carefully

crafted in order to hide the underlying whistleblower disclosures.

The definition of what is a protected disclosure was constricted to the point of nonexistence in the Huffinan decision, which eliminates all protection to federal employees who

learn of and report wrongdoing during the ordinary course of their work. These misguided

decisions, which are contrary to the intent of Congress gives safe harbor to those who commit

wrongful misconduct, undermining protections of the public.

Government employed workers, including federal service employees, take an oath

swearing them into duty. Executive branch employees are subject to the Standards of Ethical

Conduct with duties that require them to disclose "any information" that they reasonably believe

evidences 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 and safety,

unless such disclose is specifically prohibited by law. 5US. C 2302(b) (8). Fulfilling that duty is

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reiterated by sobering reminders from the highest ranking law enforcement agency, the

Department of Justice (DOJ). (http://www.justice.gov/archive/transition/merit-sysprinciples.htm) The stated concern with the conflict between the duty and the complete lack of

full protections against retaliation is now at issue.

STATEMENT OF THE ISSUE

The issue before the Board is the retroactive application of the Whistleblowers Protection

Enhancement Act, signed into law on November 27, 2012, hereafter, WPEA currently before the

Board. Federal Register, Vol. 78, No. 27, Feb. 8, 2013. More specifically, the issue is whether

the Act and its strengthened provisions applies to claims filed, cases in process and appeals

pending or filed as of the effective date of the Act, December 28, 2012.

Whistlewatch, as a public benefit corporation and public policy institute provides

information and guidance to whistleblowers. In its amicus curiae role, Whistlewatch.org urges

the Board to adopt a retroactive application of the WPEA, to all claims, appeals and enforcement

actions pending, prior to the effective date as intended by the will of Congress.

LEGISLATWE BACKGROUND & HISTORY

The WPA was a broken and lame law because of the countless incorrect adaptations and

interpretatiOns by the MSPB and the Federal Circuit judicial system. The clarified protections in

the WPEA finally provide basic remedial protections for a federal government whistleblower and

clarification that fraud and misconduct observed in the normal course of employment has always

been protected whistleblower aôtivity, not the random and infrequent observations of fraud and

misconduct NOT observed in the line of duty. The WPEA is a long overdue clarjfication of the

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Whistleblower Protection Act, hereafter, WPA. By virtue of the wording of the WPEA, it was

the will of Congress to provide a critical amendment to enhance the WPA.

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

protected almost nO meaningful disclosure activity, allowing whistleblowers to be crushed, their

careers destroyed, for doing the right thirig and allowing the involved agency to continue gross

fraud, gross waste, gross mismanagement, abuse of authority and substantial and specific

dangers to public health and safety. Failure to correct said disclosures by federal officials in

positions of power could be grounds for criminal conspiracy and gross misconduct.

Moreover, court decisions failed to include the true "consequential" damages for the

severe and well understood emotional distress and humiliation that a whistleblower experiences,

which further encourages retaliation by the involved agencies. This misinterpretation by the

courts was based on a novel definition of "consequential" damages that failed to include all the

damages that consequently resulted from agency retaliation. The fact that the WPA was broken

was well known to virtually everyone concerned with government fraud, but nothing could be

done to remedy the dysfunctional system for political reasons. The original decisions under the

Act seemed to accept and honor the legislative purpose. See, Marano v Department ofJustice, 2

F3d 1137, 1138 (Fed Cir 1993).

These decisions were quickly eroded by others that confused employee wrongful conduct

with employer wrongful conduct and twisted the Act's protections. Watson v. Department of

Justice, 64 F.3d 1524, 1527 n. 3 (Fed.Cir.1995) (citing cases for the proposition that whistle

blowing does not shield employees who engage in wrongful conduct because they have blown the

whistle). This trend continued until 2001 when Huffman obliterated all protections by defining a

protected disclosure so narrowly that it was more than likely never to occur.

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Many unsuccessful attempts were made to enact amendments to the WPA to address the

primary issues of failing to provide a realistic recovery for a whistleblower willing to risk his or

her career or report something observed during the normal course of work and when reporting

such disclosures directly to supervisors. Congress after Congress and Administration after

Administration sponsored and promised to pass amendments similar to the WPEA. From 2004

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

of a Senatorial fiat; an anonymous override at the last minute. The delay in enacting the WPEA

is tragic with many whistleblowers having been wrongfully removed from federal service in the

interim. It is clear that the proposed amendments and enhancements to past legislation are not

new or novel, since the provisions were anticipated for well over a decade.

The Board has the opportunity before it now to recognize what the Congress made clear

in the preamble to the WPEA. Specifically, the WPEA is an amendment to and a

c/ar jfication of the WPA...

"To amend chapter 23oftitle 5, United States Code, to clarify the disclosures of

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

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

Counse4 andfor other purposes"

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

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

Furthermore, the WPEA expressly provided that it is intended to clarify and correct the

misguided court rulings and is thus to be effective to all pending matters. The clarjflcation is to

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provide the justice and relief so long denied the heroic whistleblower, in the arena where such

heroes are most needed, at the largest employer on earth, the federal government.

If the need for whistle blowing and self-policing of the government was not a recognized

need over a century ago, Abraham Lincoln would likely not have invented the Qui Tam claim

and the False Claims Act. From 1986 when the original act was amended, through 2008, the

United States has recovered over 22 billion dollars. ( http://www. taforg/FCA-stats-DoJ-2008.pdf

,for comprehensive information regarding FCA statistics. Information about individual cases

may be found at http://www. taf org/statistics. htm).

ARGUMENT

A. The 14 Principles of Ethical Conduct for Federal Employees are Sacrosanct

An overarching public policy argument can be made that the question of whether

retroactivity should apply to cases pending before the Board has already been answered by virtue

of the fact that federal employees take an oath and must abide, by a code of ethical conduct while

in public service. We refer the Board to the 14 Principles of Ethical Conduct. (Executive Order

12674, as amended by Executive Order 12731, and a number of ethics-related statutes, &

Exhibit C).

Two of the Principles directly apply to this argument:

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

the laws and ethical principles above private gain.

And

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

authorities. (Emphasis added)

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Additionally, according to legal definition, the word "shall" is a mandatory imperative:

"In common, or ordinary parlance, and in its ordinary signification, the term 'shall' is a

word of command, and one which has always, or which must be given a compulsory

meaning; as denoting obligation. It has a peremptory meaning, and it is generally

imperative or mandatory. It has the invariable significance of excluding the idea of

discretion, and has the significance of operating to impose a duty which may be enforced,

particularly if public policy is in favor of this meaning, or when addressed to public

officials, or where a public interest is involved, or where the public or persons have rights

which ought to be exercised or enforced, unless a contrary intent appears; but the context

ought to be very strongly persuasive before it is softened into a mere permission," People

v. O'Rourke, 124 Cal. App. 752, 759 (Cal. App. 1932)

The word "shall" as an imperative command to a person who has a duty such as a federal

employee requires the person to act. Combining the Ethical Principles with the legal meaning of

the word "shall" federal employees are legally mandated to blow the whistle on waste, fraud,

abuse and corruption or risk being prosecuted for not performing their duties. There can be no

"softening" of the word "shall" because to act is not discretionary.

We doubt that any person in their right mind would dispute the fact that it is the duty of

every federal employee to report wrongdoing as outlined in the Ethical Conduct Principles. No

exception to the rule exists nor can any reasonable argument be made that the federal employee

"may" or "might" be required to act. Federal employees are the gate-keepers over tax payer's

money and provide direct oversight of industry. The command that federal employees shall

report fraud, waste, abuse and corruption shows the duty is mandatory.

The argument under Huffman that disclosures made during the normal course of duties

and to supervisors are not protected disclosures, flies in the face of the Ethical Conduct

Principles. It's a nonsensical way of reasoning to protect management from failing to perform

their legally duties, providing a dirty cover-up blanket thus subjecting the whistleblower to

unfettered retaliation. Simply put, if a federal employee does not learn of violations of law, rule

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and regulation during the "normal course of their duties" how else do they find out about

wrongdoing? This goes to the very core of government service. If a federal employee can't tell

anyone about wrongdoing learned during their work, are they supposed to report fraud, waste,

abuse and corruption in areas they know nothing about? Would it be appropriate for a program

officer at HHS to report fraud at the Securities and Exchange Commission (SEC)? Yes, if they

had reasonable beliefs that violations of law were occurring. However, it is much more

reasonable, understandable and likely that a HHS program officer would learn that a grantee was

committing fraud by not providing services paid for by HHS. Thus, this involves their normal

work duties maldng the disclosures protected erecting a prohibited personnel practice shield.

The MSPB is fully aware that the WPEA was ready to be implemented over a decade

ago. Federal whistleblowers needed enhanced protection. The public also needed better

protection from fraud and misconduct which directly flows from how well federal service

employees treated. The public recognized the need for the WPEA through their elected

Congressional representatives and eagerly anticipated implementation. However, each time the

WPEA was about to be made effective, a dark hand from the Senate reached out to block

passage. The hard work to obtain implementation began over again each year by rights advocates

and good government groups. In a very real sense, the new provisions of the WPEA have long

been in existence for many years under the WPA, but were ignored by the MSPB which in

effect, caused immense harm to federal and industry whistleblowers and directly to the public.

How whistleblowers and the public is directly harmed is set out here and we request the

Board take notice of the interpretation of what is a protected disclosure and when a decision is

made in favor of the whistleblower by the MSPB, including damages that flow from the harm.

We cite for the Board a pending case before the Dallas, Texas Regional Office, Barbara R. King

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v Department ofthe Air Force, DA 0752-09-0604-B-i, wherein the question of the retroactive

application of the compensatory damages provision is at issue, pursuant to 5 Usc Section 1221,

(g) (1) (A) (ii). (News article can be found at this site http.//whistlewatch. org/2012/1 1/federalemployee-barbara-r-king-wins-whistleblower-retaliation-case-against-air-force/)

KING CASE BACKGROUND

The King case, supra involved a female veteran of the armed military forces who worked

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

Response Program Manager, at Sheppard Air Force Base in Texas. King made protected

whistleblower disclosures of a failed program that was not protecting victims. Rather than act on

the protected disclosures to correct problems iri the program, Ms. King became a victim herself

of sex and age discrimination and whistleblower retaliation. In the wake of those disclosures,

Appellant suffered severe retaliation including a stripping of her duties and a demotion in order

to cover-up the wrongdoing, which she reported up the chain of command and to the osc. Ms.

King's whistleblower disclosures were made during the normal course of work.

The King case spanned over several years with her having first sought protection at the

osc, all to no avail. Then the MSPB dismissed the Appellant's first appeal as premature,

sending her off to the full Board, adding to the delay for relief. The Board reversed and reopened the appeal.

During the long drawn out proceedings Appellant suffered significant emotional damage

and financial loss, including a Veteran's home loan because she was forced to move from one

location to the next at lesser paying jobs in order to feed her family. The financial losses

Appellant incurred are directly attributed to the ongoing prohibited personnel practices.

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Ms. King is a heroic individual who served our country gallantly with a follow on

exemplary federal service employment work record who suddenly found herself financially

devastated, battling a giant, the Department of Defense (DOD) Air Force, with unlimited tax

payer funds at their disposal. The courage of Appellant is legendary that despite all odds and

personal loss, she would make known her original disclosures to the world that women in the

armed forces were being sexually abused and she'd fight for her employment property rights.

A final decision was issued in the King case, in Appellant's favor, thereby making her the

prevailing party, with a finding against her employer for prohibited personnel practices under 5

U.S.C. 2302. That decision was made by Administrative Judge (AJ) Marie A. Malouf on

October 3, 2012. However, the decision was not allowed to be made public by the parties until

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

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

the Bill on November 27, 2012.

In the King case, supra, the AJ rejected retroactive application of the WPEA as to

Appellant's entitlement to an award of compensatory damages. (Summary ofConference re

Damages, Exhibit D). The reasoning of the AJ is confounding since a prevailing party to

virtually any civil suit would afford entitlement recovery of costs and damages. But for a week

or two of an over 4 year long battle to regain her employment status, King is being now told, by

the AJ, "too bad, so sad" you are out all the money you lost over the years while enduring

egregious gender, age discrimination and whistleblower retaliation.

We argue that it would be a travesty of justice to deny King full recovery of all damages

directly related to violations of law, rule and regulation and any and all attorney fees related

unless the AJ intends to create a lesser class of citizens by denying them equal rights protection

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for discrimination and whistleblower retaliation. A decision like this would hold King and others

must finance all litigation to assert due process of law and property rights, YET, federal agencies

who wrongly abuse their authority will have all costs paid by tax payers.

The very concept that a person damaged by another civilly must pay out of pocket for

litigation and pay the salaries of the people who intentionally harmed them, through their tax

dollars and then absorb all the related costs that flow, spins the concept of equity and

fundamental fairness into little more than shiny balls on the MSPB justice free.

We further argue that the tax payers should be made aware of this contorted concept of

twisted justice who will not be pleased to find out they are footing the bill for actions taken by

federal agencies that never should have happened and could have been halted at any time by

OSC and MSPB, years earlier. We wager that the cost to the tax payers for the King case alone

exceeds $5 Million since several agencies and their employees have been involved in the case.

Meanwhile Appellant having been victimized lost her Veteran financed home, numerous

professional opportunities and hundreds of thousands of dollars for blowing the whistle in order

to protect sex assault victims. By virtueof Mr. King's job title, she learned of the disclosures

during the normal course of her work duties. The case was decided in her favor. Therefore, as

the prevailing party, she must be entitled to all damages related and any costs that flow.

Nevertheless, the AJ held that retroactive application of a statute that provides new legal

consequences, including increased liability, for acts completed before the statute's announced

effective date of the WPEA is disfavored absent clear legislative intent. The AJ then determined

that the legislative history of the WPEA is "ambiguous" adopting a presumption that Congress

had rejected retroactive application of the WPEA.

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This AJ decision was made knowing the Board was requesting amicus to be filed on the

very issue involved in the King case. It is extremely worrisome that the AJ knowing that the

WPEA was on its way to passage by Congress would in a hurry rule on the King case when years

had passed while the case languished at the MSPB. It appears there was a conscience effort to

prevent King from being compensated for all that she had lost. We question the reasoning that

but for a couple weeks in a 4+ year battle, the AJ decided the Appellant should die financially

because it is easier to bury the costs of the case to Ms. King with the dead WPA, thereby cutting

the Air Force a financial break while the WPEA was moments away from being born.

We argue emphatically if Appellants are not entitled to receive full compensation for

their losses and only back pay, such as in the instant case of King receiving less than $40,000, in

back pay verses suffering long years of the cascading effects of retaliation, why would any

federal employee bother to blow the whistle to honor their ethical conduct duties. The Board

must answer this question. We request a decision forthwith to settle the dispute that has arisen in

the instant case of King.

B. CONGRESS INTENDED THE WPEA TO BE RETROACTIVE

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

purpose and intent to be retroactive in its application. Therefore, AJ Malouf's decision is without

merit. Both the history of the WPA and the long march to amend that act as decisions from the

courts were handed down contrary to its express provisions underscore the clarifying nature of

the WPEA. As the dark history of failed decisions under the WPA became dead wood, a new

justice tree sprung that is the WPEA. An amendatory act, implemented to clarify and correct

incorrect and improper interpretations by the MSPB and the Federal Circuit Court.

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Further, the WPEA announces its clarifying purpose in its preamble; enacted to, "amen!

Chapter 23 ofTitle 5 ofthe United States Code, to clarify the disclosures of

information.......... and for other purposes".

Specifically and most critically on point is the illogical and erroneously decided Huffinan

decision and that it should be finally reversed because the original intent of Congress in enacting

the WPA restored in the WPEA is articulated in this subsection:

(f)(1) A disclosure shall not be excludedfrom subsection (b)(8) because--

(A) the disclosure was made to a supervisor or to a person who participated in an activity that

the employee or applicant reasonably believed to be covered by subsection (b)(8)(A)(i) and (ii);

(B) the disclosure revealed information that had been previously disclosed,

(C) ofthe employee's or applicant's motive for making the disclosure;

(D) the disclosure was not made in writing;

(E) the disclosure was made while the employee was offduty; or

(F) ofthe amount oftime which has passed since the occurrence ofthe events described in the

disclosure.

(2) If a disclosure is made during the normal course ofduties ofan employee, the disclosure

shall not be excluded from subsection (b)(8) f any employee who has authority to take,

direct others to take, recommend, or approve any personnel action with respect to the

employee making the disclosure, too/c failed to take, or threatened to take or fail to take a

personnel action with respect to that employee in reprisal for the disclosure. (Emphasis

added).

The impetus for clarifying the WPA had its roots in the misinterpretation of the WPA as

announced in the abominable appellate decision in Huffman v. Office ofPersonnel Management,

263 F.3' 1341 (Fed Cir 2001). In that case, the court exploited ambiguities in the language of the

WPA to conclude that disclosures observed during the ordinary course of employment were not

protected. This decision, consistently followed by the Federal Circuit, with exclusive

jurisdiction, turned the purpose of the WPA on its proverbial head, which generated the

momentum necessary to cause Congress to clarify, enhance and enact the new law.

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It is well settled that clarifying amendments to statutes, and even to Federal sentencing

guidelines which increase consequences for previous conduct, are afforded retroactive

application as a matter of course. US v Morgan, 376 F. 3d 1002 (9th Cir) [sentencing guideline

modification is clarifying]; Piamba Cortes vAmerican Airlines, Inc. 177 F 3d 1272 (lith 1999)

[amendment clarifies prior law and reconciles aberrant court decisions]; Leshinsky v Televent

GIT, S.A., 873 F. Supp 2d 582 (DC NY 2012) [amendment to SOX Whistleblower statute is

retroactive as it corrects and clarifies court decisions].

When the legislative action announces it is clarifying an ambiguity in the original

statutory language, retroactive application is presumed. See, In re Park Dash Point LP, 152 BR

300 (WD Wash. 1991) and Department ofSubstances Control v Interstate Non-Ferrous Corp. 99

F. Supp. 2d 1123 (ED Cal 2000) [new liability scheme of fines given retroactive application to

vindicate purpose of intent of statutory amendment as announced]. Moreover, when the

amendment deals with employment and the protection of individual rights and only impacts a

government agency and not an individual, retroactive application is favored. Lussier v Dugger,

904 F. 2d 661 (1 1th Cir 1990).

Similarly, with regard to the definition of consequential damages, the term was

interpreted to exclude pain and suffering and emotional distress damages. Instead of the common

meaning of consequential damages, which includes pain and suffering and emotional distress, the

court's applying the WPA referred to these damages as "compensatory damages" even though

they are a consequence of the prohibited action. Bohac v Department ofAgriculture, 239 F. 3d

1334 (Federal Circuit 2001), where the court strained to find a way to exclude emotional pain

and suffering from the list of damages that were a consequence of the wrongful conduct. In

almost all other jurisdictions, pain and suffering damages are included within the general

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category and scope of "consequential" damages when they result from wrongful conduct.

Delaware River & Bay Authority v Kopacz, 584 F 3d 622 (31d Cir 2009).

The "unique" court decisions, such as Bohac and Huffinan, misinterpreting the WPA,

denying protected status for virtually all disclosures that would normally be made (during the

course of duty) tortures the definition of "consequential" to avoid making an award for the

incredible emotional distress endured by a whistle blower, were corrected and clarified by the

WPEA, for damages especially by section 1221 (g) (1) (A) (ii).

The damages clarification or amendment simply adopts the language of the aberrant court

decisions to make it clear that the court had improperly excluded from the definition of

"consequential damages" was now included by using the language used by the court decisions to

improperly exclude consideration of these damage awards.. Therefore, the damage amendment of

the WPEA is also clarifying and afforded retroactive application.

In determining whether the amendments are clarifying or a substantive change, the Board

must look to the actual language of the Act. The WPEA expressly provides that its purpose is to

clarjfy the WPA. It could hardly be clearer that the legislature intended to insure retroactive

application by announcing that the Act was clarjfying in the preamble.

Furthermore, in Piamba, supra, the court faced the issue of the retroactive application of

an amendment to the Warsaw Convention as to damage limitations for personal injuries

sustained by passengers in an airliner crash. The court recognized the seminal importance of the

language of the amendment in announcing that it was merely clarifying the existing statute in the

wake of court decisions that failed to recognize the intention of the original act:

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Moreover, concerns about retroactive application are not implicated when an

amendment that takes effect after the initiation ofa lawsuit is deemed to clarfy relevant

law rather than effect a substantive change in the law. See Beverly Community Hosp.

Ass 'n v. Beishe, 132 F. 3d 1259, 1265 (9th Cir. 1997), cert. denied, 525 US. 928, 119 S. Ct.

334, 142 L. Ed. 2d 276(1998); Liquilux Gas Corp. v. Martin Gas Sales, 979 F. 2d 887, 890

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

Cir. 1989); cf Tsui Yuan Tseng, 525 US. at , 119 S.Ct. at 667-68 (concluding that a

provision in Montreal Protocol No. 4 limiting recovery for bodily injuries clar?fles, but

does not change, prior law under the Convention). In effect, the court applies the law as

set forth in the amendment to the present proceeding because the amendment

accurately restates the prior law. See Liquilux, 979 F.2d at 890 ("Clarjfication,

effective ab initio, is a well-recognized principle.").

Several factors are relevant when determining f an amendment clarfles, rather

than effects a substantive change to, prior law. A sign (fIcant factor is whether a conflict

or ambiguity existed with respect to the interpretation ofthe relevant provision when the

amendment was enacted. If such an ambiguity existed, *1284 courts view this as an

indication that a subsequent amendment is intended to clarj5', rather than change, the

existing law. See Liquilux, 979 F. 2d at 890. Second, courts may rely upon a declaration

by the enacting body that its intent is to clarfy the prior enactmenL See iiL Courts

should examine such declarations carefully, however, especially jfthe declarations are

found in the amendment's legislative history rather than the text ofthe amendment

itself See Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 118 n.

13, 100 S.CL 2051, 2061 n. 13, 64 L.Ed.2d 766 (1980). As a general rule, "[a] mere

statement in a conference report of[subsequent] legislation as to what the Committee

believes an earlier statute meant is obviously less weighty" than a statement in the

amendment itself Id.; see also Pennsylvania Med. Soc y v. Snider, 29 F. 3d 886, 900 (3d

Cir. 1994) (attributing no value to a House committee report stating that an amendment

clarfIes prior law when the statement is inconsistent with a logical readingofthe earlier

version ofthe statute and with the legislative history ofthe earlier statute). Declarations

in the subsequent legislative history nonetheless may be relevant to this analysis,

especially f the legislative history is consistent with a reasonable interpretation ofthe

prior enactment and its legislative history. See Sykes v. Columbus & Greenville Ry., 117

F.3d 287, 293-94 (5th Cir. 1997) ("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. ") (quoting Bobsee Corp. v. United States, 411 F. 2d 231, 237 n. 18 (5th

20

Page 20 of 43
Cir. 1969)); SEC v. Clarlc 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 ofan amendment to the earlier law. '9; cf GTE Sylvania, 447 US. at 118 n.

13, 100 S. Ct. at 2061 n. 13 (noting that such history is "sometimes considered relevant,"

but "subse4uent legislative history will rarely override a reasonable interpretation of a

statute that can be gleaned from its language and legislative history prior to its

enactment"). (Emphasis added)

CONCLUSION

For all the foresaid reasons, the WPEA is a clarjflcation of the WPA. Through its

passage and subsequent enactment, it corrects a series of aberrant court decisions. The AJ in

King, supra, incorrectly looked to the committee notes and ignored the express language of the

preamble and plain language wording of the statute, which is astoundingly clear. The AJ

decision must be reversed and all costs and damages be awarded to Appellant.

There should be no doubt that Congress intended that the WPEA is clarifying, expressly

provided for in the preamble. The Board cannot forsake King and otherssimilarly situated.

Federal agency management must be sent a resounding message. They will obey the law and

stop all discrimination and whistleblower retaliation. They will become the model employers

mandated by law. The tax payer gross waste must cease. The duty bound federal employees

deserve no less than vindication that the public trust placed in them by the people is sacrosanct.

For the Board to rule that whistleblowers are not protected when they make disclosures

during the course of normal of the public interest work would be to ignore the mandatory duties

of each federal employee overriding the 14 Ethical Conduct Principles of federal service and the

intent and will of Congress, as provided in the WPEA. Therefore, as to all cases pending and all

21

Page 21 of 43
outstanding claims yet to be resolved, the WPEA must be applied retroactively with Huffinan

reversed on appeal.

Lastly, we extend our sincere thanks to the Board and the OSC for facilitating the

solicitation of amicus briefs from interested parties and organizations.

Respectfully Submitted,

Evelynn Brown, J.D., LL.M

Chief Executive Officer

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

Joseph C Bird, Esq.

Special Counsel to Whistlewatch.org

Mahany & Erti

22

Page 22 of 43
AMICUS CURIAE BRIEF

WHISTLE WATCH.ORG

APRIL 25, 2008 OSC LETTER RE: HUFFMAN

EXHIBIT A

22

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U.S. OFFICE OF SPECIAL COUNSEL

1730 M Street, N.W., Suite 218

Washington, D.C. 20036.4505

(202) 254-3600

Ms. Evelynn Brown-Remple APR 2 5 2008

Re: OSC File No. MA-08-1078

Dear Ms. Brown-Remple:

This is in response to the above-referenced complaint that you submitted to this

Office against officials of the U. S. Department of Health and Human Service. You

allege that the decisions to reassign you on September 27, 2007, to issue you a new

Performance Plan on January 27, 2008, resulting in a significant change in duties,

responsibilities and working conditions, and to issue you a letter of reprimand on

February 6, 2008, constitutes various prohibited personnel practices. You requested that

the Special Counsel petition the Merit System Protection Board (the Board) for a stay of

the letter of reprimand.

The U.S. Office of Special Counsel is authorized to investigate allegations of

prohibited personnel practices and certain activities prohibited by civil service law, rule,

or regulation. 5 U.S.C. § 1214(a)(1)(A), 1216(a) and 2302(b). The Special Counsel

presents allegations of prohibited personnel practices, such as reprisal because of

whistleblowing, to the Board who has the authority to review and adjudicate such claims.

Based on our evaluation of the facts and law applicable to the circumstances, as

detailed in this letter, we have made a preliminary determination not to seek a stay and to

close the investigation into this matter. Our factual and legal determinations are

described below.

You allege that the decisions to reassign you on September 27, 2008, to issue you

a new Performance Plan on January 27, 2008, and to issue you a letter of reprimand on

February 6, 2008, constituted age and sex discrimination and reprisal for filing EEO

discrimination complaints. The activities you described are prohibited personnel

practices in violation of 5 U.S.C. § 2302(b)(1) and (b)(9). It is the policy of this Office,

however, to defer such allegations to the equal employment process within your agency

and the Equal Employment Opportunity Commission. You may pursue your

discrimination and reprisal for such activity claim to that process. We will take no

further action regarding this allegation.

Page 24 of 43

B6
U.S. Office of Special Counsel

Ms. Evelynn Brown-Remple

Page 2

You also allege that as reprisal for whistleblowing, you were reassigned on

September 27, 2007, issued a new Performance Plan, resulting in a significant change in

duties and responsibilities, on January 27, 2008, and issued a letter of reprimand on

February 6, 2008. To support your allegation, you indicate you are a Program Officer,

responsible for the complete monitoring process for all grantees due to be monitored,

including site visits and report recommendations for correcting identified problems.

Following a reassignment from Washington, DC Grants Policy to your current duty

station, San Francisco, California, Runaway and Homeless Youth Programs in June. 2007,

you found fraud, waste, abuse and mismanagement of federal funds. Your report

included, but was not limited to, information that children were living below minimum

performance standard conditions; the agency had been funding programs many years that

did not exist; grantees who were unlicensed to care for children were kicking them out on

the streets in the morning; and grantees were not performing required fingerprint or

background checks on employees. Between September 2007 and February 2008, you

reported the improprieties to Central Office Management and attempted to work with

Regional Staff. Subsequently, those officials advised you to contact officials of the

Office of Inspector General. You characterized your whistleblowing activity as the

Runaway and Homeless Programs report.

Under the Whistleblower Protection. Act.(WPA), it is a prohibited personnel

practice to take or fail to take, or to threaten to take or fail to take, a personnel action with

respect to any employee because of any disclosure of information by an employee which

the employee reasonably believes evidences 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).

The elements of proof necessary to establish a violation of section 2302(b)(8) are:

(1) a protected disclosure of information was made; (2) the accused official(s) (e.g., the

proposing or deciding official) had knowledge of the disclosure and the identity of the

employee making the disclosure; and (3) the protected disclosure was a contributing

factor in the personnel action or that of a personnel action.

Based on the available information, we are unable to conclude that your claimed

whistleblowing activity is protected for purposes of the WPA. Specifically, as stated

above your duties and responsibilities included filing monitoring reports and ensuring

that the grants are processed in accordance with regulations. Thus, the assessment

appears to be part of your normal duties and responsibilities. As such, by presenting the.

evaluation to your supervisors for their review, it appears that you did no more than carry

out your required job responsibility. In addition, your managers advised you to present

your findings to the Office of Inspector General. As such, it appears that you were

simply complying with your supervisor's direction in the normal course of your duties.

Under Huffinan v. Office of Personnel Management, 263 F.3d 1341 (Fed. Cir. 2001), the

Page 25 of 43
U.S. Office of Special Counsel

Ms. Evelynn Brown-Remple

Page 3

Federal Circuit determined that reports made as part of an employee's assigned normal

job responsibilities are not protected disclosures covered by the WPA when made

through normal job channels. Thus, in the absence of a protected disclosure, we have no

basis for further inquiry into the actions you complain about as possible violations of

section 2302(b)(8).

While the report to the Inspector General's Office, is not protected under section

2302(b)(8). We have considered it for a possible violation of 5 U.S.C.

§ 2302(b)(9)(C). Under that section, it is a prohibited personnel practice to take or fall to

take, or to threaten to take or fail to take a personnel action against any employee or

applicant for employment for cooperating with or disclosing information to the Inspector

General of any agency. The elements of proof necessary to establish a case of a (b)(9)

violation are: (1) employee or applicant for employment participated in the protected

activity defined in 5 U.S.C. § 2302(b)(9); (2) the agency officials exercising personnel

action authority had knowledge of the employee's or applicant's participation in the

protected activity; and (3) participation in the protected activity was a significant factor in

the personnel action or threat of a personnel action.

However, one of the elements required to demonstrate a violation of section

2302(b)(8) is that a personnel action is taken, not taken or threatened to be taken.

Personnel actions are defined in 5 U.S.C. § 2302(a)(2)(A). We note that a reassignment

is defined as the change of an employee from one position to another without a

promotion or change to lower grade. According to the information provided, you were

not reassigned. Rather, you were simply placed under another manager's supervision.

Regarding the decision to place you on a new Performance Plan, we understand that it

was changed so that your duties and responsibilities were consistent with the duties and

responsibilities of your GS- 11 Program Specialist position. In addition, a Performance

Plan change was also implemented for other employees and there is no information

evidencing that they engaged in a protected activity. We note that a Performance Plan

describes the results that an employee should achieve during an appraisal period. In any

event, Performance, Plans are not considered personnel actions as required by the statute.

Because the performance plan simply explained how you would perform your

duties, we cannot infer a significant change in duties and responsibilities occurred within

the meaning of the statute. Regarding the letter of reprimand, given the fact your

superiors advised you to provide your assessment to the Office of Inspector General; we

do not believe they were motivated to retaliate against you for following their directions.

Moreover, you indicated that no investigation was conducted into the problems you

found and none of the officials responsible for the actions of concern to you have been

disciplined or otherwise subjected to any adverse action because of the improprieties.

Consequently, for the above reasons, we cannot conclude that your protected activity was

a significant factor in the decision to take or not take the actions you complain about.

Page 26 of 43
U.S. Office of Special Counsel

Ms. Evelynn Brown-Remple

Page 4

Thus, we have no basis for further inquiry into this part of your complaint as a possible

violation of 5 U.S.C. § 2302(b)(9)(C).

You allege that the decisions to issue you a new Performance Plan on January 27,

2008, resulting in a significant change in duties and responsibilities, to issue you a letter

of reprimand on February 6, 2008, and to reassign you constitute reprisal for refusing to

obey an order, which would require you to violate a law. Title 5 U.s.c.

§ 2302(b)(9)(D) prohibits taking, or failing to take, or threatening to take, or failing to

take, any personnel action against any employee for refusing to obey an order, which

would require the employee to violate a law. The Board has determined that the elements

of proof necessary to establish a case of a (b)(9)(D) violation are: (1) employee or

applicant for employment participated in the protected activity defined in 5 U.S.C.

§ 2302(b)(9)(D); (2) the agency officials exercising personnel action authority had

knowledge of the employee's or applicant's participation in the protected activity; and (3)

participation in the protected activity was a significant factor in the personnel action or

threat of a personnel action.

Based on our review of the information presented to this Office, however, we are

also unable to conclude that a violation of section 2302(b)(9)(D) occurred. Specifically,.

in order for us to demonstrate a violation of section 2302(b)(9)(D), we would require

information that shows that you were directed to disobey a law. However, while you

state that your supervisor attempted to force you to certify certain grants, you have not

provided any information to indicate that your supervisor or any other management

official gave you a direct order that would require you to violate any specific law or that

your supervisor took or failed to take the actions of concern to you because you failed to

follow such an order. In the absence of information indicating that you were ordered to

violate a law as required by the statute, we have no basis for further inquiry into the

decision to management actions as possible violations of 5 U.S.C. § 2302(b)(9)(D).

Finally, regarding your request for this Office to,seek a stay from the Board of the

letter of reprimand. We do not petitiOn the Board for a ètay of every action alleged to be

a prohibited personnel practice. A stay is a remedy that can be considered only after we

have determined that there are reasonable grounds to believe that a prohibited personnel

practice has been or is about to be committed. 5 U.S.C. § 1214. We have reviewed the

information that you have submitted and that we have obtained upon further inquiry, but

we are unable to find reasonable grounds to believe that the agency has taken any action

as a result of a prohibited personnel practice. Thus, we have decided not to petition the

Board for a stay at this time.

As indicated above, we have made a preliminary determination not to seek a stay

and to close our inquiry into your allegations. However, before we actually close the file,

we will give you an opportunity to submit any comments you may wish to make

Page 27 of 43
U.S. Office of Special Counsel

Ms. Evelynn Brown-Remple

Page5

concerning our determination. Your response must be in writing and should address each

of the reasons we cited in reaching our preliminary determination to close your

complaint. You have 13 days from the date of this letter to submityour written response.

If we do not receive any written comments from you by the end of the 13-day period, we

anticipate closing the file and will send you a letter terminating any further inquiry.

Sincerely,

?

/J Sandra Thomas

L.Complaints Examiner

Page 28 of 43
AMICUS CURIAE BRIEF

WHISTLE WATCH.ORG

JANUARY 25, 2013 OSC LEUER RE: DEPARTMENT OF HEALTH AND HUMAN

SERVICES NO FEAR ACT VIOLATION OF LAW, RULE, REGULATION

-j.j-i g1 pIuI.Ju .J

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U.S. OFFICE OF SPECIAL COUNSEL

1730 M Street, N.W., SuIte 218 Washington, D.C. 20036-4505

202-254.3600

January 25, 2013

Ms. Evelyn Brown

Re: OSC File No. DI-12-3610

Dear Ms. Brown:

The Office of Special Counsel (OSC) has completed its review of the information you

referred to the Disclosure Unit. You alleged that employees at the Department of Health and

Human Services (HHS), Washington, D.C., are engaging in conduct that may constitute a

violation of law, rule, or regulation, by failing to prepare and submit to Congress mandatory

No FEAR Act Reports from at least January 2, 2002, until January 2, 2012.

The Office of Special Counsel (OSC) is authorized by law to receive disclosures of

information from federal employees alleging violations of law, rule, or regulation, gross

mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific

danger to public health and safety. 5 U.S.C. § 1213(a) and (b). OSC does not have the

authority to investigate a whistleblower' s disclosure; rather, if the Special Counsel

determines that there is a substantial likelihood that one of the aforementioned conditions

exists, she is required to advise the appropriate agency head of her determination, and the

agency head is required to conduct an investigation of the allegations and submit a written

report. 5 U.S.C. § 1213(c) and (g).

Upon receipt, the Special Counsel reviews the agency report to determine whether it

contains all of the information required by statute and that the findings of the head of the

agency appear to be reasonable. 5 U.S.C. § 12I3(e)(2). The Special Counsel will determine

that the agency's investigative findings and conclusions appear reasonable if they are

credible, consistent, and complete based upon the facts in the disclosure, the agency report,

and the comments offered by the whistleblower under 5 U.S.C. § 1213(e)(1).

We have concluded that there is a substantial likelihood that the information that you

provided to OSC discloses a violation of law, rule, or regulation. Thus, we have transmitted

the allegation that from the effective date of the No FEAR Act, October 1, 2003, until 2012,

HHS has not submitted mandatory reports to Congress, to the Secretary of Health and

Human Services for a report pursuant to 5 U.S.C. § 12 13(c). With your conSent, we

identified you as the source of the information, so that a representative of the Secretary's

office may speak with you directly.

Page 30 of 43

B6
Ms. Evelyn Brown

Page 2

We have provided the Secretary 60 days to conduct an investigation of these

allegations and to report back to us. You should be aware, however, that these matters may

take somewhat longer and agencies may request an extension of the reporting date. After we

have reviewed the report, unless it is classified or otherwise not releasable by law, we will

send you a copy and give you an opportunity to comment. The report and your comments

will be transmitted to the President and the appropriate congressional oversight committees,

and will be maintained by OSC in a public file, which is now online at www.osc.gov..

We emphasize that until the agency's final report is forwarded to the President and

Congress, this remains an open matter under investigation. We will notify you when the

report is available for public release.

Please contact me at (202) 254-3677 if you have any questions regarding this matter.

Sincerely,

Karen P. Gorman

Deputy Chief, Disclosure Unit

KPG/kpg

Page 31 of 43
AMICUS CURIAE BRIEF

WHISTLE WATCH.ORG

14 PRINCIPLES OF ETHICAL CONDUCT

EXHIBIT C

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Page 32 of 43
Fourteen Principles of Ethical Conduct

for Federal Employees

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

laws and ethical principles above private gain.

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

of duty.

(3) Employees shall not engage in fmancial transactions using nonpublic Governmçnt

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

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

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

from, doing business with, or conducting activities regulated by the employee's agency, or whose

interests may be substantially affected by the performance or nonperformance of the employee's

duties.

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

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

purporting to bind the Government.

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

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

organization or individual.

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

authorized activities.

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

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

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

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

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

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

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

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

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

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

shall be determined from the perspective of a reasonable person with knowledge of the relevant

facts.

25

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AMICUS CURIAE BRIEF

WHISTLE WATCH.ORG

KING CASE CONFERENCE CALL RE: DAMAGES

Exhibit D

26

Page 34 of 43
UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DALLAS REGIONAL OFFICE

BARBARA R. KING, DOCKET NUMBER

Appellant, DA0752O90604P- 1

V. DEPARTMENT OF THE AIR FORCE, DATE: February 11, 2013

Agency.

SUMMARY OF STATUS CONFERENCE

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

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

following matters were discussed.

PENDING MATTERS I identified the two proceedings before the

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

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

A-i.t

REPRESENTATIVES - The appellant confirmed that Joseph Bird is

representing her in both of the pending proceedings. The agency's rcpresentative

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

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

agency in either of these proceedings.

SETTLEMENT I encouraged the parties to explore settlement

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

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

Page 35 of 43
2

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

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

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

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

assistance of a settlement judge.

ISSUES The following issues are in dispute:

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

damages.

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

damages.

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

amount of damages to be awarded.

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

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

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

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

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

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

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

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

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

and foreseeable consequential damages. 5 U.S.C. § 122 1(g)(1)(A)(ii),

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

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

construction of 'consequential damages' and that the phrase 'any other reasonable

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

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

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

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

Page 36 of 43
3

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

consequential damages is to make the prevailing employee financially whole and

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

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

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

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

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

43.

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

through passage of the Whistleblower Protection Enhancement Act of 2012

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

WPEA, entitled "Effective Date," provides as follows: "Except as otherwise

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

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

"Prohibited Personnel Practices Affecting the Transportation Security

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

section." By operation of its express language, therefore, the Act's provisions

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

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

any retroactive operation of its terms.

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

Specifically, the amendments provide in relevant part:

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

such corrective action may include

(ii) back pay2 and related benefits, medical costs incurred, travel

expenses, any other reasonable and foreseeable consequential

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

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

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

Page 37 of 43
4

damages, and compensatory damages (including interest,

reasonable expert witness fees, and costs).

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

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

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

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

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

that compensatory damages may be awarded in this proceeding.

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

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

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

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

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

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

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

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

reconcile the tension between generally applicable rules of statutory

interpretation. Specifically,

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

time it renders its decision," Bradley v. School Bd. ofRichmond, 416

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

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

"congressional enactments and administrative rules will not be

construed to have retroactive effect unless their language requires

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

208 (1988).

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

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

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

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

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

adjudicated in this addendum proceeding.

Page 38 of 43
Id. at 264. The Court set out a framework for determining whether a statute

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

determine whether Congress has expressly prescribed the statute's temporal

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

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

whether its provision "attaches new legal consequences to events completed

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

when he acted, increase a party's liability for past conduct, or impose new 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 the "traditional presumption" against retroactivity, "absent

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

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

The WPEA contains no express prescription of retroactivity and its

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

the House of Representatives states that "[nights in this Act shall govern legal

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

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

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

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

enactment. The Committee expects and intendsthat the Act's

provisions shall be applied in OSC, MSPB, and judicial

proceedings initiated by or on behalf of a whistleblower and

pending on or after that effective date. Such application is

expected and appropriate because the legislation generally corrects

erroneous decisions by the MSPB and the courts; removes and

compensates for burdens that were wrongfully imposed on individual

whistleblowers exercising their rights in the public interest; and

improves the rules of administrative and judicial procedure and

jurisdiction applicable to the vindication of whistleblowers' rights.

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

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

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

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

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

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

effectively pursue the main goal." Landgraf, 511 U.S. at 286. Given the

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

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

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

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

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

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

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

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

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

consideration, Congress has waived sovereign immunity with regard to

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

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

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

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

Landgraf, and that therefore the presumption against statutory retroactivity

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)).

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

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

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

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

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

against statutory retroactivity therefore barred application of amended version of

WPA in pending case).

This ruling regarding the retroactive applicability of the WPEA is subject

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

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

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

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

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

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

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

pending cases involving conduct occurring prior to its effective date is

appropriate for review under the criteria set forth under 5 C.F.R. § 1201.92.

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

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

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

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

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

§ 1201.93(c).

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

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

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

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

Page 41 of 43
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If either party disagrees with this Summary, I must receive a written

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

FOR THE BOARD: _/S/__________

Marie A. Malouf

Administrative Judge

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CERTIFICATE OF SERVICE

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

day to each of the following:

Appellant

Electronic Mail Barbara R. King

Appellant Representative

Electronic Mail. Joseph Bird, Esq.

136 South Pontiac Trail Suite 2

Walled Lake, MI 48390

Agency Representative

U.S. Mail Maj. Lawrence Lynch

Department of the Air Force

AFLOA/JACL TX LLFSC

1 Washington Circle, Ste. 10

Randolph AFB, TX 7815 1-4564

February 11,2013 /5/

(Date) Crystal Q. Wilson

Paralëgal Specialist

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