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UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

 

THOMAS F. DAY, 

Appellant

v.

DEPARTMENT OF HOMELAND

SECURITY

Agency

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Docket No. DC-1221-12-0528-W-1

AMICUS BRIEF OF MSPB WATCH

Statement of Interest

MSPB Watch1is an accountability organization that works to ensure that the U.S. Merit 

Systems Protection Board (“MSPB” or “Board”) adheres to its mission of “protect[ing] Federal 

merit systems and the rights of individuals within those systems.” MSPB Watch engages in 

research, outreach, education, and advocacy, relating in particular to whistleblowers’ rights and 

the protection of those rights. While Congress debated the Whistleblower Protection 

Enhancement Act (“WPEA”) in 2012, MSPB Watch advocated for its retroactive application and 

raised the very types of questions articulated by the administrative judge’s (“AJ”) December 14, 

2012 Order. Since the WPEA’s enactment, MSPB Watch has identified at least 66 cases pending 

before the Board that are likely to be affected by the Board’s decision.2 MSPB Watch is thus well 

positioned to address the legal issues raised in the case at bar. 

 

1 MSPB Watch is run by David Pardo, an attorney and federal whistleblower. Its online presence is available at 

www.mspbwatch.net. 

2

See http://mspbwatch.net/2013/01/24/gap-reaches-out-to-whistleblower-community-to-protect-rights-six-monthstoo-late/. 
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Summary of Argument

To the extent that the AJ's December 14 ruling bars any retroactive application of the 

WPEA, it does not reach post-WPEA filings based on pre-WPEA conduct. Under Supreme Court 

precedent and practice, legislative history is sufficient to evince “clear congressional intent” that 

the WPEA applies retroactively. Chevron deference may apply to the Board’s adjudicative 

interpretation of its own jurisdiction, depending on the outcome of a pending Supreme Court 

case. If Chevron deference applies to the Board’s determination of its jurisdiction, the Board may 

be entitled to deference of its determination whether the WPEA has retroactive effect.

Argument

A. The Administrative Judge’s December 14 Ruling Does Not Bar All Retroactive 

Application of the WPEA

The instant case involves a federal employee, Thomas F. Day, who reported wrongdoing 

that arguably was made to an alleged wrongdoer or during his normal course of duties. Under 

prior precedent, Huffman v. Office of Personnel Mgmt., 263 F.3d 1341, (Fed. Cir. 2001), which 

governed at the time of Day’s disclosure, as well as when he filed his complaint with the Office 

of Special Counsel (“OSC”) and an Individual Right of Action (“IRA”) with the MSPB, such 

disclosures were deemed to be unprotected under the Whistleblower Protection Act of 1989 

(“WPA”). During the pendency of this litigation, Congress enacted, and the president signed, the 

WPEA, which overturned Huffman and expressly provided protections to the types of disclosures 

arguably made by Day. Accordingly, a question arises whether the WPEA applies to Day’s 

pending appeal. The AJ ruled that the WPEA does not apply retroactively to Day’s pending 

appeal, but due to the significance of this issue, he certified his ruling for an interlocutory review 

before the full Board. Day v. Dep’t of Homeland Security, Docket No. DC-1221-12-0528-W-1 

(Order dated Dec. 14, 2012).
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Under Supreme Court precedent discussing retroactivty of statutes, Landgraf v. USI Film 

Products, 511 U.S. 244 (1994), “a tribunal must first determine whether Congress has expressly 

prescribed the statute’s temporal reach.” Day, *7 (citing Landgraf, 511 U.S. at 280)). “If the new 

statute does not contain any such express prescription, the tribunal must determine whether it 

would have actual ‘retroactive effect,’ that is, whether its provision ‘attaches new legal 

consequences to events completed before its enactment[,]’ [Landgraf, 511 U.S.] 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. (citing Landgraf, 511 

U.S. at 280. “The Court concluded that if retroactive application of the new statute would have 

the above-cited effects, it would apply ‘our traditional presumption’ against retroactivity, ‘absent 

clear congressional intent favoring such a result.’” Id.

Here, the AJ began his analysis by noting that the “WPEA contains no express 

prescription of retroactivity,” and that its legislative history is “contradictory and inconclusive,” 

because the House Committee Report accompanying the House version of the WPEA, H.R. 

3289, states that “[r]ights in this Act shall govern legal actions filed after its effective date.” Day, 

*9. The AJ then noted that the House report language “expressly declaiming any retroactive 

application.” Id. (Emphasis added). However, it must be noted that to the extent the House report 

“declaim[ed] any retroactive application,” it was only with regards to legal actions pending (that 

is, filed before and continuing) at the time of the WPEA’s effective date. The House report said

nothing about restricting retroactive application for legal actions filed after the WPEA’s effective 

date but that are based on conduct occurring before the WPEA’s effective dated. Retroactive 

application would thus be appropriate for such cases if congressional intent is clear—and indeed 
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the legislative history for such a result is neither contradictory nor inconclusive, but 

straightforward. See Senate Rept. No. 112-155. But that is a matter for a different case.

The AJ also read the Senate committee report language—“proceedings initiated by or on 

behalf of a whistleblower and pending on or after that effective date”—and believed it to be 

“difficult to parse.” Day, * 9. However, a plain reading of the phrase shows that the Senate 

intended the WPEA to apply to proceedings initiated by pro se or represented whistleblowers, 

which were filed and continuing before the WPEA’s effective date or filed after but borne of preWPEA conduct. Indeed, the context of that phrase was sufficiently clear to signal to the AJ that it 

was “designed to apply the Act retroactively to pending cases involving conduct occurring prior 

to its effective date.” Id. at *9-10.

B. Under Supreme Court Precedent and Practice, Legislative History is Sufficient 

to Evince ‘Clear Congressional Intent’ of Retroactivity

In Landgraf the Supreme Court professed to use a clear statement test to determine 

whether Congress intended retroactive application of a statute, but in reality it looked at floor 

statements and committee reports for guidance. Landgraf, 511 U.S. 244. But see concurring 

opinion (Scalia, J., with Kennedy, J., and Thomas, J.) (disavowing use of any legislative history 

to effectuate congressional intent other than text of bill, and criticizing majority for “convert[ing]

the ‘clear statement’ rule into a ‘discernible legislative intent’”). See generally Leonard Charles 

Presberg, The Civil Rights Act of 1991, Retroactivity, and Continuing Violations: The Effect of 

Landgraf v. USI Film Products and Rivers v. Roadway Express, 28 U. Rich. L. Rev. 1363 (Fall 

1994). Accordingly, the Board may be entitled to look at floor statements and committee reports 

for guidance here, though this may be challenged on appeal by some composition of the courts.

C. Chevron Deference May Apply to the Board’s Adjudicative Interpretation of Its 

Own Jurisdiction
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The U.S. Supreme Court recently heard arguments in a case that may affect the Board’s 

decision in the instant case, or ones addressing similar issues. In City of Arlington, Tex. v. FCC, 

Docket No. 11-1545 (argued Jan. 16, 2013), the Supreme Court is expected to determine whether 

a court should apply Chevron U.S.A. Inc. v. NRDC, Inc. in reviewing an agency’s determination 

of its own jurisdiction. In Chevron, the Supreme Court held that if a statute is silent or 

ambiguous with respect to a specific issue, an agency’s interpretation will be upheld if its answer 

is based on a permissible construction of the statute. 467 U.S. 837, 842–843 (1984).3 Chevron

deference is also afforded to an agency interpretation that arises in an adjudicative context. See, 

e.g., Immigration & Naturalization Serv., v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) 

(adjudicative interpretation by Board of Immigration Appeals); DeBartolo Corp. v. Florida Gulf 

Coast Bldg. & Const. Trades Council, 485 U.S. 568 (1988) (adjudicative interpretation by 

NLRB).

The Supreme Court has previously indicated that an agency’s construction of a statute to 

expand its own jurisdiction might merit Chevron deference, Mississippi Power and Light Co. v. 

Mississippi, 487 U.S. 354, 381-82 (1988) (Scalia, J., concurring), but it is far from conclusive. 

See City of Arlington, Tex. v. FCC, 668 F. 3d 229, 248 (5th Cir. 2012) (“The Supreme Court has 

not yet conclusively resolved the question of whether Chevron applies in the context of an 

agency's determination of its own statutory jurisdiction, and the circuit courts of appeals have 

adopted different approaches to the issue.”). The Supreme Court may soon provide an answer to 

this question.

Here, an interpretation by the Board that the WPEA applies retroactively would make 

several previously-unprotected disclosures protected, and thus grant the Board jurisdiction over 

 

3 Of course, if Congress speaks clearly, neither deference nor the presumption against retroactivity are warranted.

See Chevron, 467 U.S. 837; Landgraf, 511 U.S. 244.
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now-nonfrivolous allegations. See Yunus v. Dep’t of Veterans Affairs, 242 F. 3d 1367, 1371 (Fed. 

Cir. 2001). This would be an expansion of the Board’s own jurisdiction.

D. If Chevron Deference Applies in City of Arlington, the Board May Be Entitled to 

Deference of Its Determination Whether the WPEA Has Retroactive Effect

If the Supreme Court rules that an agency’s determination of its own jurisdiction is 

entitled to Chevron deference, such deference may apply in the context of the Board determining 

whether the WPEA has actual retroactive effect. Cf. Henderson v. Immigration & Naturalization 

Serv., 157 F.3d 106 (2d Cir. 1998) (applying Chevron analysis in determining whether statute 

applies retroactively). But see Siddiqui v. Holder, 670 F.3d 736, 747 (7th Cir. 2012) (employing 

de novo review in determining whether a statute applies retroactively); Arevalo v. Ashcroft, 344 

F.3d 1, 10 (1st Cir. 2003) (same). That said, the Henderson court noted that “a statute that is 

silent with respect to retroactivity is not ‘ambiguous.’ In the absence of clear evidence that 

Congress intended some other result, such a statute does not apply retroactively.” 157 F.3d at 

130.

In the case at bar, Congress was not silent, but rather arguably contradictory—and thus 

ambiguous. The next analytical step under Landgraf would be for the Board to determine 

whether the WPEA has actual retroactive effect; whether its provision “attaches new legal 

consequences to events completed before its enactment” 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.” 511 U.S. at 270, 280. Given the ambiguous nature of 

WPEA’s legislative history, under Chevron, the Board might enjoy deference by the courts. 

Conclusion

To the extent retroactivity is denied in Day v. Dep’t of Homeland Security, such an 

outcome need not predetermine other cases where retroactivity might apply. The Board may look 
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past statutory language to positive legislative history governing retroactivity, and its 

interpretation of the WPEA may be entitled to deference.

 

Dated: February 21, 2013 

Respectfully submitted, 

___________________

David Pardo 

Pro se 

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