1

UNITED STATES MERIT SYSTEMS PROTECTION BOARD

OFFICE OF REGIONAL OPERATIONS

____________________________________

)

Barbara R. King )

) Docket No. DA-0752-09-0604-P-1

Appellant, )

)

v. )

)

Department of the Air Force )

) April 12, 2013

Agency. )

____________________________________)

AMICUS BRIEF OF THE DEPARTMENT OF HOMELAND SECURITY

Amici, the U.S. Department of Homeland Security (DHS), is an interested 

organization in the above-captioned matter. DHS is a party to Thomas F. Day v. 

Department of Homeland Security, MSPB Docket No. DC-1221-12-0528-W-1, which 

was certified for interlocutory review on December 14, 2012, and is pending a decision 

by the Board. The question in Day concerns whether the provisions of the Whistleblower 

Protection Enhancement Act (“WPEA”) of 2012, 112 Public Law 199, may be applied 

retroactively to pending cases involving conduct occurring before its effective date. 

Specific to Day is Section 101(b)(2)(B) of the WPEA. Because the issue to be decided in 

Day is similar to the issue to be decided in the instant appeal, DHS submits an amicus 

brief reiterating the agency’s arguments made in Day in support of prospective 

application. 

ISSUE

Whether the provisions of the WPEA of 2012, 112 Public Law 199, with regard to 

damages may be applied retroactively to cases pending prior to its effective date. The 

specific question in King is related to the retroactive effect of Section 107(b) of the 
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WPEA, which revised the law to include compensatory damages as one of the remedies 

to which individuals may be entitled. Prior to passage of the WPEA, individuals were 

entitled to reasonable and foreseeable consequential damages, but not compensatory or 

non-pecuniary damages.

SUMMARY OF THE ARGUMENT

For the reasons set forth below, this Board should affirm the Administrative 

Judge’s March 6, 2013, Order and Certification for Interlocutory Appeal, which 

concluded that the WPEA should not be applied retroactively to cases pending before the 

MSPB at the time of enactment. 

First, the plain language of the statute is clear. The WPEA’s effective date 

provision expressly commands that, with the exception of a provision immediately 

effective as applied to the Transportation Security Administration (“TSA”), the statute 

will take effect within 30 days of enactment. Because Congress prescribed the WPEA’s 

temporal reach within the statute, there is no need to look further.

Second, if we are to assume the plain language of the statute does not clearly 

prescribe the statute’s proper reach, this Board should apply the well-established 

presumption against retroactive construction of new statutes. The specific provision at 

issue in the instant appeal and the remaining provisions within the WPEA are not 

clarifying in nature. Rather section 107(b) read alone, and the WPEA in its entirety, 

creates new rights, liabilities, and duties which would have an impermissible retroactive 

effect absent clear congressional intent otherwise.

Third, although recourse to the legislative history of the WPEA is unnecessary, 

that history confirms that there is no clear congressional intent to depart from the plain 
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language of the statute. While a single Senate committee report contains language that 

contemplates retroactive application, such an isolated reference to retroactivity cannot be 

used to create ambiguity where none exists. Moreover, such language is insufficient as a 

matter of law to constitute evidence of “clear Congressional intent” to depart from the 

default presumption against retroactive application of new legislation. 

Finally, the Board is authorized to apply the presumption against retroactivity and 

the governing case law does not distinguish between public and private parties when 

applying the presumption, as was so argued by several amici in Day v. DHS. 

As explained in more detail below, this Board should affirm the decision of the 

Administrative Judge and rule that the WPEA may not be applied retroactively to 

conduct occurring prior to its effective date. And, specifically, this Board should not 

apply the WPEA retroactively to Section 107(b).

ARGUMENT

I. The Plain Language of the Statute is Clear as to Congress’s Intent.

A. The act of delaying the effective date, coupled with the time-neutral 

language in the remaining provisions, is clear indication of Congress’s

intent for prospective application.

In Landgraf v. USI Film Products, et al., the Supreme Court set forth a legal road 

map for determining whether a federal statute applies to past conduct. Landgraf, 511 

U.S. 244 (1994). “[T]he court’s first task is to determine whether Congress has expressly 

prescribed the statute’s proper reach,” Id. at 280, or, “in the absence of any language as 

helpful as that,” determine whether a “comparably firm conclusion” based on “normal 

rules of [statutory] construction” can be reached. Fernandez-Vargas v. Gonzales, 548 

U.S. 30, 37 (2006) (quoting Lindh v. Murphy, 521 U.S. 320, 326 (1997)). 
4

The WPEA’s effective date provision simply states: “Except as otherwise 

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

Act.” Pub. L. No. 112-199, § 202, 126 Stat. 1465. Section 109 of the Act provides 

certain rights to TSA employees and was effective immediately upon enactment. 

Administrative Judge Malouf found support for prospective application in the fact 

that Congress created two separate effective dates, one for TSA and another for the 

remaining provisions. (Day v. DHS, DC-1221-12-0528-W-1, Order and Certification for 

Interlocutory Appeal dated March 6, 2013, at p.4, n.2). As Administrative Judge Malouf

points out, if Congress intended retroactive application of the WPEA, “there was 

seemingly no reason to include a separate provision making it effective in TSA cases 30 

days sooner than other cases.” (Id.) This same position was taken by Administrative 

Judge Weiss in the matter of Day v. DHS (Day Order and Certification for Interlocutory 

Appeal dated Dec. 14, 2012 at p. 10, no. 1). Amicus in Day, the Office of Special 

Counsel (OSC), dismissed this argument, claiming the “point. . . trades on fallacy.” 

(OSC brief in Day at 8). OSC claimed there are a number of “rational grounds to treat 

TSA employees differently.” We agree. One very rational reason is that Congress 

intended the WPEA to be prospective. It is a cardinal rule of statutory construction, that, 

if possible, effect shall be given to every clause and part of statute. United States v. 

Menasche, 348 U.S. 528, 538-39 (1955). If Congress did not intend for prospective 

application, the provision requiring a 30-day delay in effecting the Act and the provision 

requiring immediate application to TSA employees are both rendered meaningless. 

Persuasive authority also supports the position that the statute is clear on its face. 

In analyzing another federal statute governing the rights of employees, the Americans 
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with Disabilities Amendment Act of 2008 (“ADAAA”), the D.C. Circuit deemed the 

existence, within, of a delayed effective date, as is the case with the WPEA, as clear 

indication of Congress’s express determination of prospective application. In Lytes v. 

D.C. Water and Sewer Authority, 572 F.3d 936 (D.C. Cir. 2009), the D.C. Circuit 

considered whether the 2008 amendments to the ADA applied retroactively to a former 

employee of the District of Columbia. Similar to the effective date provision in the 

WPEA, the effective date for the ADAAA was delayed. The applicable provision stated, 

“[t]his Act and the amendments made by this Act shall become effective on January 1, 

2009.” ADAAA § 8, Pub. L. No. 110-325, 112 Stat. 3553, 3559. In finding that the 

amendments applied prospectively, the D.C. Circuit, applying step one of Landgraf, held 

that “[b]y delaying the effective date of the [ADAAA], the Congress clearly indicated the 

statute would apply only from January 1, 2009 forward.” Lytes,572 F.3d at 940; see also, 

AT & T Corp. v. Hulteen, 556 U.S. 701, 129 S. Ct. 1962, 1971-72 (2009) (looking at the 

delayed effective date of the Pregnancy Discrimination Act, the Supreme Court 

concluded that Congress had used “the language of prospective intent” in enacting the 

law).

Amici in Day argued that Congress explicitly stated its intentions for retroactive 

application by noting in the preamble of the Act that its purpose is “to clarify the 

disclosures of information.” (See, e.g. Government Accountability Project (“GAP”) brief

in Day at 7). The D.C. Circuit considered and disregarded similar arguments in Lytes

when determining whether the ADAAA called for retroactive application. The Court

acknowledged that “a statute may be ambiguous if, notwithstanding a delayed effective 

date, it has a provision that seems to call for its retroactive application.” Lytes, 572 F.3d 
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at 941. Similar to the provisions of the WPEA, Congress titled the ADAAA, “An Act 

[t]o restore the intent and protections of the [ADA]” and its general purpose was to 

“reinstate a broad scope of protection” under the ADA and to “reject” the holdings in two 

major Supreme Court cases. ADAAA §2(b), Pub. L. No. 110-325, 122 Stat. 3553, 3554. 

However, the D.C. Circuit noted that those “indicia of purpose are actually time-neutral, 

and do not countermand the clear indication of intent inherent in the deferred effective 

date,” and that a “‘restorative purpose may be relevant’ to the retroactivity question but 

the choice to overrule a judicial decision ‘is quite distinct’ from the choice to do so 

retroactively.” Lytes, 572 F.3d at 941 (citing Rivers v. Roadway Express Inc., 511 U.S. 

298, 305, 311 (1994). 

Congress used time-neutral language in the WPEA preamble. Further, while 

other provisions of the WPEA, specifically Section 101(b)(2)(B), act to effectively 

overturn earlier court decisions 1

, given the delayed effective date and in the absence of 

clear retroactive language, the general rules of statutory construction govern, thus we are 

left to the same conclusion as the D.C. Circuit in Lytes. When Congress “delay[s] the 

effective date of a substantive statute,” here the WPEA, that “in principle [applies] to 

conduct completed before its enactment,” it is “presume[d] the statute applies only 

prospectively.” Lytes, 572 F.3d at 941.

B. Further support of Congress’s intent for prospective application can be 

found by considering statutes in which Congress has unambiguously 

called for retroactive application.

In other employment related statutes, Congress has acted in the past to 

unambiguously specify the retroactive effect of legislation within the body of a statute. 

 1 In addition to Huffman, see, e.g., Willis v. Department of Agriculture, 141 F.3d 1139, 1143 (Fed. Cir. 

1998) and Horton v. Department of Navy, 66 F.3d 279, 282 (Fed. Cir. 1995).
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By failing to include similar language within the statutory language of the WPEA, 

statutory construction rules support the notion that Congress intended prospective 

application.

For example, when Congress amended Title VII in the Equal Employment 

Opportunity Act of 1972, it explicitly provided: “The amendments made by this Act to 

section 706 of the Civil Rights Act of 1964 shall be applicable with respect to charges 

pending with the Commission on the date of enactment of this Act and all charges filed 

thereafter.” Landgraf, 511 U.S. at 257, n. 10, citing to Pub. L. 92-261, §14, 86 Stat. 113. 

When Congress enacted the Lilly Ledbetter Fair Pay Act of 2009, it very clearly 

indicated, “This Act, and the amendments made by this Act, take effect as if enacted on 

May 28, 2007 and apply to all claims of discrimination ...that are pending on or after that 

date.” Pub. L. No. 111-2, 123, § 6, 123 Stat. 1457, January 29, 2009. Indeed, Amicus in 

Day, the Department of Veteran’s Affairs (VA), points to additional statutes in which 

Congress created retroactive application by using express statutory language. (See VA 

Brief in Day at 7-9). 

In contrast to Lilly Ledbetter and other laws in which Congress has used express 

statutory language to demonstrate clear congressional intent, there are a number of laws 

that do not contain such express language. For example, the 1994 WPA amendments 

were construed by the Federal Circuit as insufficient to convey express congressional 

intent to apply WPA amendments retroactively. See Caddell v. Department of Justice, 96 

F.3d 1367, 1371 (Fed. Cir. 1996) (holding that a statutory provision stating “the 

amendments made by this Act shall be effective on and after the date of the enactment of 
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this Act” was insufficient to evidence congressional intent to apply WPA amendments 

retroactively). 

As the Court noted in Landgraf, “[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.” Landgraf, 511 U.S. at 257. The Supreme Court has 

gone so far as to say that, “the ‘effective-upon-enactment’ formula” is an “especially 

inapt way to reach pending cases.” Id. at n. 10 (the Court, in comparing prior 

amendments to the Civil Rights Act of 1964, noted that when Congress used explicit 

language in the text of the statute, the courts interpreted the law to be retroactive and 

when Congress failed to do so, but rather used language indicating simply when the law 

becomes effective, the courts did not find the law to be retroactive in nature). 

Unless Congress uses clear terms to express its intent that a statute be applied 

retroactively, the statute will not be given such effect. See Plaut v. Spendthrift Farm, 

Inc., 514 U.S. 211, 237 (1995) (noting that “statutes do not apply retroactively unless 

Congress expressly states that they do”); see also Rivers v. Roadway Express, Inc., 511 

U.S. 298, 299 (1994) (“an intent to act retroactively in such cases must be based on clear 

evidence and may not be presumed.”); see also Johnson v. United States, 529 U.S. 694, 

701, 702 (2000) (“The Government offers nothing indicating congressional intent to 

apply § 3583(h) retroactively...In sum, there being no contrary intent, our longstanding 

presumption directs that § 3583(h) applies only to cases in which that initial offense 

occurred after the effective date of the amendment, September 13, 1994.”); see also

Vartelas v. Dep’t of Justice, 132. S. Ct. 1479, 1481 (2012)(under the principle against 
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retroactive legislation, courts read laws as prospective in application unless Congress has 

unambiguously instructed retroactivity).

Thus, at the time the WPEA was passed, Congress was well aware that it would 

need to “unambiguously specify the retroactive effect of [whistleblower] legislation if it 

decide[d] to do so.” Caddell, 96 F.3d at 1371. Congress did not so specify and, in fact,

the language explicitly states otherwise. Section 202 means what it says: the WPEA 

“shall take effect 30 days after the enactment of this Act.” Pub. L. No. 112-199 § 202. 

Given the delayed effective date and the absence of any clear congressional 

specification of retroactivity, the Administrative Judge correctly concluded that the 

statute here does not apply retroactively.

II. There Is a Well-Established Presumption Against Retroactive Construction 

of Statutes and Retroactive Application of the WPEA Would Have an 

Impermissible “Retroactive Effect” Under Governing Supreme Court and 

Federal Circuit Precedent.

Given the plain language of the WPEA, it is unnecessary to jump to the 

default rules set forth in Landgraf; however, we address these arguments below in 

anticipation that they will be raised by other Amici. The Supreme Court set forth 

the following test to be used in deciding whether a statute that is silent with 

respect to the date of its application should be given retroactive effect:

[T]he court must determine whether the new statute would have 

retroactive effect, i.e. whether it 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. If the statute would 

operate retroactively, our traditional presumption teaches that it does not 

govern absent clear congressional intent favoring such a result. 

Landgraf, 511 U.S. at 280 (emphasis added).

If the WPEA’s numerous substantive provisions are deemed to govern preenactment conduct, the legislation would impose an impermissible “retroactive effect” 
10

that functionally alters—after-the-fact—the rights, duties, liabilities, and expectations of 

individual parties. 

Congress is presumed to legislate prospectively and statutes are not construed to 

govern pre-enactment conduct when doing so attaches new legal consequences to events 

that preceded a law’s enactment. See, e.g., Vartelas v. Holder, 132 S. Ct. 1479, 1491 

(2012) (“The operative presumption, after all, is that Congress intends its laws to govern 

prospectively only.”); Hughes Aircraft Co. v. United States, 520 U.S. 939, 951-52 (1997) 

(holding that an amendment expanding permissible qui tam whistleblower suits under the 

False Claims Act (“FCA”) could not apply to pre-enactment conduct because it would 

alter the settled rights and expectations of parties). 

Acknowledging that there had been a tension between the judicial principle that, 

on the one hand, a court should apply the law in effect at the time it renders its decision 

and, on the other hand, the well-established rule that retroactive application of statutes is 

not favored in the law, the Supreme Court affirmatively resolved the tension in favor of 

the latter. Landgraf, 511 U.S. at 277. “Although [previous] language suggests a 

categorical presumption in favor of all new rules of law, we now make it clear that [the 

principle requiring a court to apply the law as it exists at the time of its decision] did not 

alter the well-settled presumption against application of the class of new statutes that 

would have genuinely ‘retroactive’ effect.” Id. Thus, absent express congressional intent 

to the contrary, the Landgraf presumption against retroactivity applies whenever 

application of a statute to pre-enactment conduct would have a retroactive effect. 

In Landgraf, the Supreme Court emphasized that “the presumption against 

retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal 
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doctrine centuries older than our Republic.” Landgraf, 511 U.S. at 265. The Supreme 

Court’s formulation stated that a law has a retroactive effect when it would “impair the 

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.” Landgraf, 511 U.S. 

at 280. The Court noted that the “presumption against statutory retroactivity has 

consistently been explained by reference to the unfairness of imposing new burdens on 

persons after the fact.” Landgraf, 511 U.S. at 271. Consequently, the Landgraf

framework is broad in its application and has been consistently reapplied by the Supreme 

Court, the Federal Circuit, and this Board.

For example, the Federal Circuit applied the Landgraf framework when it 

analyzed the retroactive effects of earlier amendments to the WPA. In Caddell v. 

Department of Justice, the Federal Circuit affirmed this Board’s decision to give 

prospective construction to a WPA amendment that expanded the definition of a 

“personnel action” to include a fitness-for-duty psychiatric evaluation: “[T]he 

amendment clearly imposes new duties on government officials wishing to utilize 

fitness-for-duty examinations . . . and arguably the amendments could increase a 

government official’s liability for past conduct.” 96 F.3d at 1370. Thus, the 

Federal Circuit has already construed prior WPA amendments prospectively when 

they imposed new liabilities on government supervisors.

This Board has likewise adopted the Landgraf presumption as an important 

rule of statutory construction with respect to other WPA amendments. For 

example, in Roman v. Department of the Army, 72 M.S.P.R. 409 (1996), aff’d, 

1997 WL 636608 (Fed. Cir. 1997), this Board found that a WPA consequential 
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damages amendment “attached a new legal burden to conduct that took place 

before its enactment[,]” and applied the Landgraf framework to reject retroactive 

application of the new law. Id. at 415. In keeping with federal court precedent, this 

Board recognized that “even though retroactive application of [the amendment] 

might vindicate the purpose of the WPA more fully, this consideration is not 

sufficient to rebut the presumption against retroactivity.” Id. Put differently, this 

Board has acknowledged that the presumption against retroactivity is firmly 

established as a rule of statutory construction and may not be cast aside, absent an 

unambiguous statutory mandate, even when doing so would arguably further the 

overall policy aims of the new law as is argued by Amici.

The term “retroactive effect” has developed a functional meaning over time. 

The Supreme Court clarified this definition when it refused to retroactively apply a 

jurisdictional amendment to the FCA that expanded the ability of whistleblower plaintiffs 

to bring qui tam actions in federal court. Hughes, 520 U.S. at 951-52. The Court 

reasoned that extension of FCA causes of action to private plaintiffs where none had 

previously existed would have had a “retroactive effect” if applied to pre-enactment 

conduct. Id. at 949-50. 

Importantly, the Hughes Court rejected respondents’ argument that the new FCA 

provision merely re-allocated the ability to bring enforcement actions between the 

Government and private parties: 

As a class of plaintiffs, qui tam relators are different in kind than the 

Government. They are motivated primarily by prospects of monetary 

reward rather than the public good. . . . In permitting actions by an 

expanded universe of plaintiffs with different incentives, the [new] 

amendment essentially creates a new cause of action[.]
13

Id. at 950. As a result, jurisdictional amendments fall within the Landgraf 

presumption when they create new causes of action (i.e., by expanding the universe 

of plaintiffs who can bring suit) as opposed to amendments that merely reallocate 

existing causes of action between forums. Id. at 951. 

A. Section 107(b) of the WPEA creates new rights and liabilities for the 

parties and is a substantive change from previous law.

The changes in Section 107(b), those relevant in the instant appeal, clearly 

increases a party’s liability for past conduct as it expands the damages to which an 

individual may be entitled to include uncapped compensatory damages, which have never 

been available to a prevailing party. In Landgraf, the Supreme Court found that the 

imposition of compensatory damages before the effective date of the Civil Rights Act of 

1991, “undoubtedly impose[s] on employers found liable a ‘new disability’ in respect to 

past events.” See Landgraf, 511 U.S. at 283. “The extent of a party’s liability, in the civil 

context as well as the criminal, is an important legal consequence that cannot be 

ignored.” Landgraf, 511 U.S. at 283-84. 

In Day, amicus OSC argued that the Board’s decision in Scott v. 

Department of Justice, 69 M.S.P.R. 211, 239 - 40 (1995) was applicable to the 

analysis as to whether Section 101(b)(2)(B) should be applied retroactively. (OSC 

brief in Day at 10-11 and n. 8). The Board’s analysis in Scott is instructive here as 

it relates to Section 107(b) and the facts of Scott can be distinguished from those of 

the instant appeal. In Scott, the Board analyzed a change to the WPA that 

established the per se “knowledge-timing” rule that says an employee may 

demonstrate protected disclosures were contributing factors through circumstantial 

evidence. In determining whether the provision at issue in Scott would have 
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retroactive effect, the Board determined that “[u]nlike the provision at issue in 

Caddell, the provision at issue in this appeal is not directed at regulating the 

primary conduct of the parties; rather, it is a procedural change that affects our 

analysis of the appellant’s burden of proving that a disclosure was a contributing 

factor in a personnel action.” Scott, 69 M.S.P.R. at 239. In other words, the 

knowledge-timing test did not affect the disclosures by the employee or the 

personnel action taken by the agency. Rather, the test in Scott impacted what the 

Board referred to as the “secondary conduct” of the parties by changing the manner 

in which evidence is presented to the Board. 

The changes in Section 107(b) of the WPEA do more than impact the 

manner in which the parties will present evidence. Rather they fall squarely within 

regulating the primary conduct of the party by increasing a party’s liability. 

By adding this additional remedy, Congress has acted to impose new 

liabilities. Under the pre-WPEA standard, the corrective action available to 

individuals found to have been retaliated against for making protected disclosures 

included reasonable and foreseeable consequential damages, not compensatory

damages. The Supreme Court has unequivocally stated that compensatory damages 

are “quintessentially backward looking” and affect the liabilities of the parties. 

Landgraf, 511 U.S. at 282.

The changes in Section 107(b) create wholly different considerations of 

liability for an agency. The Court has held this is “an important legal consequence 

that cannot be ignored.” Landgraf, 511 U.S. at 283-84. The instant appeal was 

filed in 2009 and the administrative judge issued an initial decision on October 3, 
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2012, which became final on November 7, 2012. The Appellant filed her request 

for compensatory damages on December 17, 2012. Thus, all relevant actions in the 

instant appeal, occurred prior to December 27, 2012, the effective date of the 

WPEA.

In assessing liability in litigation, an agency will consider the relevant legal 

standards and all potential costs of litigation to include the cost of discovery, a 

hearing, and any remedy to which the appellant may be entitled. In the instant 

appeal, the parties completed virtually all aspects of the litigation under the WPA 

standards, which meant that in considering its potential liability in the case, the Air 

Force had absolutely no reason to consider the possibility of an award of 

compensatory damages, particularly those subject to no cap. Had the Air Force 

known about this significant additional potential burden on the agency, it may have 

acted drastically different in its approach to the litigation. To change the rules 

upon completion of the litigation and place the burden of uncapped compensatory 

damages on the Air Force now is completely contradictory to the “familiar 

considerations of fair notice, reasonable reliance, and settled expectations.” 

Landgraf, 511 U.S. at 270.

B. The remaining WPEA provisions attach new legal consequences to events 

completed before its enactment.

Although the remaining provisions within the WPEA are not yet at issue in the 

instant appeal, Amicus DHS addresses them here. The WPEA, as discussed below, 

creates new rights and liabilities, imposes new duties with respect to transactions already 

completed, and is a substantive change from previous law.
16

Section 101(b)(1) allows government employees to bring IRA appeals before the 

MSPB for violations of 5 U.S.C. § 2302(b)(9) where previously the only recourse had 

been a request for OSC to conduct a discretionary investigation. Pub. L. No. 112-199, 

§101, 126 Stat. 1465. As in Hughes, permitting these new IRAs for allegations grounded 

in pre-enactment conduct would have a retroactive effect because claims that were once 

pursued at OSC’s discretion may now be brought as a matter of right by individual 

employees to the MSPB – a class of “plaintiffs with different incentives.” Hughes, 520 

U.S. at 950 (“The extension of an FCA cause of action to private parties in circumstances 

where the action was previously foreclosed is not insignificant. As a class of plaintiffs, 

qui tam relators are different in kind than the Government.”).

Section 101(b)(2)(B), those at issue in Day, broadens the definition of 

protected disclosure and is analogous to those changes in the laws addressed in 

both Hughes and Caddell. Under the WPA and Huffman standards, individuals 

who made disclosures within the normal course of their job duties or to the alleged 

wrongdoer could not establish non-frivolous allegations of protected disclosures 

sufficient to confer Board jurisdiction. Given that Section 101(b)(2)(B) of the 

WPEA acts to effectively overturn Huffman, by its very nature, the provision 

creates new causes of action and expands the universe of individuals who can bring 

suit, in the same way that the changes to the FCA at issue in Hughes and the 

changes to the WPA at issue in Caddell broadened the class of plaintiffs who could 

bring claims.

Even if considering the standard set forth by the Board in Scott, whether the 

change in the law was directed at regulating the primary conduct of the parties, one 
17

can only conclude that the provisions of Section 101(b)(2)(B) do impact the 

primary conduct of the parties because they change the definition of protected 

disclosures, which, since Willis in 1998, has not included disclosing information to 

the alleged wrongdoers and, since Huffman, in 2001, has not included disclosing 

information in the normal course of job duties. 

This new definition of protected disclosures imposes new rights. Under the 

pre-WPEA standard, disclosures to the wrongdoer and those made in the normal 

course of job duties were not protected as a matter of law, a well-established 

principle set forth almost 15 years ago. In assessing how to manage the federal 

workforce, management officials may consider numerous factors. For example, 

pre-WPEA, a management official may be aware that an employee, in the normal 

course of his duties, has made management aware of alleged violations of law. 

Separate and apart from these “disclosures,” management may have a legitimate, 

business need to reassign the employee. In considering reassignment, management 

may be aware of the “disclosures” and, even if not considering them, believe that 

the act of making the “disclosures” is not protected activity, thus not have any 

concern about the “disclosures” as they relate to the separate decision to reassign. 

Amici in Day argued that Section 101(b)(2)(B) merely clarifies the definition of 

protected disclosure. In support of this argument, The National Employment Lawyers 

Association (“NELA”) and OSC argued that the legislative history supports this notion 

and that the language in the statute itself – “Clarification of Disclosures Covered” –

establishes this provision was meant to clarify, not to create, rights. (NELA brief in Day

at 10, OSC brief in Day at 10 – 11). This argument is circular and confuses the Landgraf
18

standard. As argued above in Section I, the mere act of entitling a provision in a timeneutral statute does not “demonstrate” clear intent on the part of Congress for retroactive 

application. Moreover, the very fact that the legal analysis of application requires 

consideration of the actual retroactive effect of the law means the statute did not 

expressly authorize retroactive application. 

Amici in Day, NELA and OSC, also argued that the WPEA provisions are 

clarifying in nature because Congress simply intended to correct erroneous decisions by 

the Board and the Federal Circuit. (NELA brief in Day at 10 – 12, OSC brief in Day at

10-11). However, these arguments also fail. A new law is not automatically deemed to 

be clarifying in nature simply by virtue of the fact that Congress issued it to correct 

“erroneous” court decisions which is “quite distinct” from the choice to retroactively

correct decisions. Lytes, 572 F.3d. at 941, citing Rivers, 511 U.S. at 311. The very fact 

that Congress believes legislation is necessary in order to correct “erroneous” court 

decisions is evidence that Congress is acting to do more than simply clarify the law and 

“requiring clear intent assures 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.” Landgraf, 511 U.S. at 272-73.

Each of the Day Amici’s arguments above regarding use of the word, “clarifying” 

and “clarification” in the statute and the fact that Congress intended to overturn specific 

court decisions when it passed the WPEA, is dispelled by considering Congress’s 

intentions when passing the ADAAA. In the same way Congress broadened the 

definition of protected disclosure to overturn Willis and Huffman within Section 

101(b)(2)(B) of the WPEA, Congress, when passing the ADAAA, unequivocally stated 
19

within the law itself its intent to broaden the definition of disability and overturn Supreme 

Court precedent. In determining whether the ADAAA applies retroactively, given the 

“disfavored retroactive effect” of “broaden[ing] the class of employees entitled to 

reasonable accommodation,” and the lack of any evidence to establish clear congressional 

intent of retroactive application, the D.C. Circuit was not persuaded by such language in 

the body of the statute. Lytes, 572 F.3d at 939-42. It is abundantly clear that Section 

101(b)(2)(B) does much more than clarify the law. It creates a new class of individuals 

to file whistleblower appeals and shifts the ground under which all parties have been 

operating for close to fifteen years.

Similarly, Section 106 broadens the scope of available disciplinary actions that 

can be imposed on government supervisors who are found to have violated the Act. Pub. 

L. No. 112-199, § 106, 126 Stat. 1465. Where the old legal framework only permitted 

the MSPB to discipline supervisors in a single manner, the WPEA now permits any 

combination of removal, reduction-in-grade, debarment from federal employment, 

suspension, reprimand, and civil fine. In Caddell, the Federal Circuit construed a WPA 

amendment prospectively, in part, because it “could increase a government official’s 

liability for past conduct.” 96 F.3d at 1371. This implicates due process considerations. 

Due process is based on the concept of fundamental fairness and the anti-retroactivity 

principle stems from fundamental fairness and notice concerns. See Landgraf, 511 U.S. at 

265 (“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”). 
20

While OSC may not have authority to seek disciplinary action against those 

management officials involved in the instant IRA appeal, OSC would have such 

authority in pending prohibited personnel practice investigations with regard to 

agency officials, thus pinning the officials with “additional burdens based on 

conduct that occurred in the past.” Landgraf, 511 U.S. at 283, n. 35. Such a 

finding is not in keeping with the notion of fairness that individuals should have an 

opportunity to conform their conduct in accordance with the law. 

The WPEA’s new disciplinary provision would not only increase liabilities that 

attach to conduct already considered illegal under the pre-existing WPA, but would also 

attach significant new liabilities on government supervisors for conduct that was 

previously considered insufficient to establish a viable whistleblower complaint. 

As the United States Department of Veterans Affairs pointed out in its amicus 

brief filed in Day,

Retroactive application of this expanded coverage may subject the 

manager to discipline after she, either with or without correct legal 

guidance from agency counsel or from OSC, failed to act on such a 

disclosure but later, and possibly unrelated to the earlier disclosure, 

imposed discipline against the disclosing employee. In short, managers 

who previously justifiably relied on the then-current state of the law 

regarding what constituted a protected disclosure could be disciplined up 

to and including being removed from federal employment. 

(See VA Brief in Day at 12).

Retroactively applying the WPEA to pending cases will subject management 

officials to disciplinary actions for past conduct and thus deprive them of their due 

process rights inasmuch as they were not placed on notice regarding the current state of 

the law at the time they engaged in actions in regard to communications which are now 
21

considered to be protected disclosures under the WPEA. This well fits within the antiretroactivity principles discussed above.

III. The WPEA’s legislative history does not conclusively demonstrate a clear 

congressional intent for retroactive application.

Although consideration of congressional intent is not necessary because the 

statute’s prospective nature is clear on its face, we address the arguments below.

The only significant piece of legislative history that contemplates retroactive 

application of the WPEA is a single Senate committee report stating: “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.” S. Rep. No. 112-155, at 52 (2012). No similar language can be found in 

the legislation’s parallel House committee report. H.R. Rep. No. 112-508, at 12 (2012). 

Of course, the Senate committee’s language and sentiment never made its way into the 

statute, was never voted on by the full Senate or the House of Representatives, and was 

never signed into law. At most, the reference to retroactivity in the Senate report 

highlights the fact that some Senators thought the amendments should apply 

retroactively, but that view evidently never garnered enough support to include the kind 

of express language in the bill itself that would rebut the presumption. 

In Day, the amici’s argument that Congress’s intent that the WPEA should apply 

retroactively rested merely on the above-mentioned single paragraph contained in the

Senate committee report. (See OSC brief in Day at 5, GAP brief in Day at 15, NELA

brief in Day at 7.) Such legislative history is far too slender a reed to rebut the 

presumption against retroactivity. 
22

Legislative history may not be employed to generate ambiguity that is otherwise 

missing from the statute. “Legislative history, for those who take it into account, is 

meant to clear up ambiguity, not create it...When presented, on the one hand, with clear 

statutory language and, on the other, with dueling committee reports, we must choose the 

language.” Milner v. Dep’t of the Navy, 131 S. Ct. 1259, 1267 (2011). Bypassing 

express language in a statute to sift through legislative history is particularly disfavored 

when it only serves to “mudd[y] the waters” of an otherwise clear statutory command. 

United States v. Gonzales, 520 U.S. 1, 6 (1997).

In Milner, the Supreme Court rejected the Government’s argument that a single 

House committee report was sufficient to provide the proper construction of a FOIA 

provision. Milner, 131 S. Ct. at 1267. In particular, the Court noted the fact that the 

corresponding Senate committee report failed to express a similar intent. Id. More 

recently, in Gonzales, the Supreme Court rejected legislative history arguments grounded 

in a single committee report, finding that such a “snippet of legislative history injects into 

[the statute] an entirely new idea . . . ‘in no way anchored in the text of the statute.’” 520 

U.S. at 6.

Assuming, for argument’s sake, that the delayed effective date language in the 

WPEA is not clear indication of prospective application, language in a single committee 

report and corresponding floor statements is not enough to rebut the Landgraf 

presumption against retroactivity. In Zarcon, Inc. v. National Labor Relations Board, 

578 F.3d 892 (8th Cir. 2009), the Eighth Circuit specifically addressed the question of 

whether a committee report and corresponding floor statements expressing an intent to 

apply a statute retroactively were sufficient to rebut the Landgraf presumption, 
23

concluding persuasively that they were not. Finding that the OPEN Government Act—

which amended the FOIA—could not be applied to cases pending at the time of its 

enactment, the Eighth Circuit rejected the plaintiff’s contention that the legislative history 

of the act evidenced “clear congressional intent” to apply its provisions retroactively to 

pending cases. Id. at 896. Specifically, the court held that a single Senate committee 

report and floor statements made by the bill’s sponsoring Senator “are insufficient to 

overcome the default rule announced in Landgraf that ‘[w]hen . . . the statute contains no 

. . . express command [regarding its effective date],’ it is not to be applied retroactively.” 

Id.

Even members of Congress themselves recognize the danger in relying upon such 

slim legislative history. The words of former Senator John Danforth made during 

discussions regarding congressional intent as it related to the Civil Rights Act of 1991

ring true today, “[A] court would be well advised to take with a large grain of salt floor 

debate and statements placed in the Congressional Record which purport to create an 

interpretation for the legislation that is before us.” Landgraf, 511 U.S. at 262, n. 15, 

citing to 137 Cong. Rec. S15325 (Oct. 29, 1991).

Moreover, a closer look at the legislative development reinforces that the 

legislative history is neither enlightening nor persuasive here. The WPEA was 

introduced to the Senate on April 6, 2011 as S.743. A review of each of the bills from 

introduction through the final version reveals that the effective date of the WPEA was to 

always be 30 days after its enactment, with the exception of Section 109 which became 

effective immediately upon enactment for TSA employees and applicants. Nothing in 

any of the various versions of the bill reveals Congressional intent to retroactively apply 
24

any provision of the WPEA. Congress had multiple opportunities to include the 

retroactive language – language that, as argued above, it had used before in various other 

statutes – but plainly did not do so.

IV. The Landgraf Doctrine is Applicable to the Board’s Question

A. The Board must apply the Landgraf doctrine.

In Day, OSC sought to limit the Board’s authority in the matter by attempting to 

distinguish the Board, an administrative tribunal, from an Article III court. (OSC brief in 

Day at 12-14). The authority upon which OSC relied is a case that pre-dates Landgraf

and is wholly unrelated to a federal statute impacting the rights of employees and the 

obligations of employers. What’s more befuddling about the OSC argument is that the 

Board has already applied Landgraf in numerous decisions, to include both Caddell v. 

Department of Justice, 66 M.S.P.R. 347 (1995), and in Scott, when determining whether 

the 1994 amendments to the WPA were retroactive. Moreover, the Board’s reviewing 

court recently remanded a case back to the Board for consideration of the retroactive 

application of the WPEA. See Nasuti v. MSPB, 113 LRP 2327, Nos. 2012-3136, 2012-

3162 (January 16, 2013).2 

In support of its argument, OSC cites to precedent that stands for the premise that 

the Constitution’s grant of executive authority does not include the right to nullify 

legislative acts. (OSC brief in Day at 13). This argument assumes the answer to the very 

question at issue in the instant appeal. We agree that the Board does not have any such 

authority and given, as argued above, the WPEA is clear on its face that its provisions 

were to be applied prospectively, the Board should so find.

 2 The very fact that the Board invited interested organizations to file amicus briefs in the instant appeal is 

further support that OSC’s position from Day is incorrect. 
25

B. The presumption against retroactivity is applicable to public sector 

employers.

In Day, OSC suggested that Government’s broadly defined interest as a public 

employer is materially distinguishable from the interest of the private employer in 

Landgraf and, therefore, the Board should apply the law as it exists at the time of its 

decision. (OSC brief in Day at 18). Seemingly, the OSC brief suggests that the Supreme 

Court’s analysis in Landgraf was premised on “interest balancing” between an employee 

and her private employer that is sufficiently unique to justify a different balance in this

case between an employee and a public employer.3

 

However, as established in the preceding section, the Landgraf holding was not 

meant to be narrow in its application, nor was it cabined to the specific facts or equities of 

that case. Indeed, nothing in Landgraf suggests that it applies only to private employers. 

Instead, Landgraf established a robust judicial presumption that Congress legislates 

prospectively absent a clear statement to the contrary, lest “[t]he Legislature’s unmatched 

powers allow it to sweep away settled expectations suddenly and without individualized 

consideration.” Landgraf, 511 U.S. at 266. The decision, along with its progeny cases, 

established a strong presumption against retroactive construction of statutes that 

functionally alter the rights, duties, liabilities, and expectations of parties—a presumption 

that can only be rebutted if Congress makes its intention to do so unambiguously clear. 

Id. at 268.

 3 In a footnote of its brief in Day, OSC cited to Lyons v. United States, 99 Fed. Cl. 552, 556 (Fed. Cl. 

2011), as persuasive authority for the proposition that “Supreme Court precedent on retroactivity focuse[s] 

on private parties and, therefore, [is] inapposite as to Congressional changes to government liability.” 

(OSC brief in Day at 18, n.6). OSC’s reliance on Lyons is misplaced. While the court in Lyons noted in 

passing that “[a]t least one federal court has found retroactivity analysis inapposite where the Government 

is the defendant, asking only whether sovereign immunity has been properly waived,” the Lyons court 

nonetheless analyzed the question of retroactivity within the well-established framework of Landgraf, 

ultimately determining that the statute at-issue in the case would not have retroactive effect and could 

therefore be applied retroactively. Id. at 556-60.
26

Most important for this case, and as detailed above, the Landgraf presumption has 

already been applied by this Board and the Federal Circuit in the context of amendments 

to the WPA. OSC’s argument in Day on this point is therefore inconsistent with existing 

precedent.

CONCLUSION

Accordingly, the Agency respectfully requests that the Board issue a decision 

affirming Administrative Judge Malouf’s decision finding that Section 107(b) and the 

remaining provisions of the WPEA are to be prospectively implemented. 

Respectfully Submitted,
27

CERTIFICATE OF SERVICE

I certify that the foregoing document has been sent as designated below this 12th day of 

April, 2013 to each of the following individuals:

William D. Spencer

Clerk of the Board

Via Email: mspb@mspb.gov