UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

____________________________________

)

THOMAS F. DAY, )

Appellant, )

) DOCKET NUMBER

v. ) SF-1221-12-0528-W-1

)

DEPARTMENT OF HOMELAND ) ORAL ARGUMENT 

SECURITY, ) REQUESTED

Agency. )

____________________________________)

AMICUS BRIEF FILED ON BEHALF OF

THE NATIONAL WHISTLEBLOWER CENTER 

AND DR. RAM CHATURVEDI, M.D.

Pursuant to the “Notice of Opportunity to File Amicus Briefs,” published by the Merit

Systems Protection Board (“MSPB”) on February 8, 2013, the National Whistleblower Center 

and Dr. Ram Chaturvedi, M.D. hereby file their brief on the issue of whether §101 of the 

Whistleblower Protection Enhancement Act of 2012 (“WPEA”) applies to all current cases 

pending before the MSPB. 

SUMMARY OF ARGUMENT

There are three key facts relevant to determining the effective date of §101 of the WPEA. 

First, the statutory language contained within P.L. 112-199. Second, the language contained in 

the Senate Report on WPEA. Third, the language contained in the House Report on the WPEA. 

All three of these controlling sources state explicitly that §101 of the WEPA is a “clarifying” 

amendment. As a “clarifying” amendment §101 is, as a matter of law, applicable to all MSPB 

cases pending as of the effective date of the WPEA. 

FACTS

Both the text and legislative history of the WPEA confirm that §101 of the Act was a 
2

“clarifying” amendment to the existing Whistleblower Protection Act of 1989 (“WPA”), 5 

U.S.C. §2302(b)(8). 

As approved by Congress, P.L. 112-199 contains a separate section specifically dedicated 

to clarifying the meaning of the term “any disclosure” in the WPA. Id., §101. In the WPEA,

Congress did not alter the existing term “any disclosure,” that is contained in the existing law, 

but instead clarified what types of disclosures fell within the gambit of the term “any.” 

Congress, in the statute itself, titled §101 as a clarifying amendment: “CLARIFICATION OF 

DISCLOSURES COVERED.” P.L. 112-199, §101. The WPEA contained twenty separate 

sections, but only two of these sections were classified in the text of the law as “clarifying” 

amendments. 

The precise language clarifying the scope of a protected disclosure was originally 

introduced (and approved) by the Senate in §101 of S. 743. The Senate Report explicitly 

confirmed that §101 was intended to be a clarifying amendment. S. Rep. 122-155, p. 2 (“S. 743 

would ... clarify the broad meaning of ‘any’ disclosure of wrongdoing”). Significantly, when the 

Senate Homeland Security Committee discussed the various provisions in the WPEA it was very 

clear that some provisions in the WPEA created “new protections” while others “strengthened” 

existing protections. Id. However, when discussing §101 the Committee differentiated §101 

from other proposed changes to the WPA, and stated that §101 was designed to “restore[] the 

original congressional intent of the WPA.” Id. (emphasis added).

The specific section of the Senate Report dedicated to explaining the Congressional intent 

behind §101 was titled “Clarification of what constitutes a protected disclosure.” Id. p. 4. 

Congress’ intent to ensure that §101 was treated as a clarifying amendment, was reiterated in 

numerous others statements contained in the Report. See, e.g., S. Rep. 122-155, p. 4 (clarify the 
3

meaning of the WPA’s “plain language” covering “any disclosure); id. (intent of Congress to 

restore the “intended meaning” of protected disclosures); id., p. 5 (§101 intended to “make clear” 

the scope of a protected disclosure); id. (§101 intended to “overturn” decisions that had 

“narrowed” Congress’ original view of a protected disclosure); id. (§101 was needed to correct 

prior court holdings “contrary to congressional intent”), and; id. (§101 “clarifies” Congressional 

intent).

The bill that unanimously passed the U.S. Senate contained §101, and the Senate titled 

that section “Clarification of Disclosures Covered.” S. 743.

The House adopted, verbatim, the language contained in §101 of S. 743. Like the Senate, 

when introduced in the House as H.R. 3289, the WPEA also contained a §101. This section in 

the House bill was identical to the Senate version, and was entitled “Clarification of Disclosures 

Covered.” The House Committee on Oversight and Government Reform’s Report on the 

WPEA, H. Rep. 112-508 (May 30, 2012), confirmed that it was also the intent of the House that 

§101 of its bill be considered a clarifying amendment. The Report stated that H.R. 3289 would 

“provide clarification relating to disclosures of information protected from prohibited personnel 

practices.” H. Rep. 112-508, p.1. Like its Senate counterpart, the House Committee on 

Oversight and Government Reform expressed concern that prior court rulings had “eroded” the 

protections Congress had intended to give whistleblowers as part of the original WPA, and stated 

that §101 of the House bill was intended to “reestablish[]” protections. Id., p. 6.

The WPEA was unanimously passed by the House, with §101 of the bill explicitly 

entitled, “Clarification of disclosures covered.” H.R. 3289.

After the relevant House and Senate committees unanimously approved §101 as a 

clarifying amendment and the committee language was thereafter approved by both houses of 
4

Congress, the Public Law approved by Congress titled §101 of the engrossed act as a 

“clarification of disclosures protected.” See, P.L. 112-199, §101. The bill unanimously passed 

by Congress and signed by President Obama was explicitly titled, “CLARIFICATION OF 

DISCLOSURES COVERED.” Id.

ARGUMENT

I. WPEA §101 IS A CLARIFYING AMEMDMENT AND MUST BE APPLIED TO 

PENDING CASES

It is well established that when an amendment merely clarifies existing law, rather than 

effecting a substantive change to the law, retroactivity does not come into play. Courts apply the 

clarifying amendment to current proceedings “because the amendment accurately restates the 

prior law.” Piamba Cortes v. Am. Airlines, 177 F.3d 1272, 1284 (11th Cir. 1999). Courts look at 

the “title of the Act” and “Senate and House Committee Reports” in determining whether or not 

a statute is clarifying and thus applicable to pending cases. Beverly Community Hosp. Aoss’n v. 

Belshe, 132 F.3d 1259, 1265 (9th Cir. 1997).1 Accord., Levy v. Sterling Holding, 544 F.3d 493, 

506-08 (3rd Cir. 2008) (citing decisions “finding retroactivity to be a non-issue with respect to 

new laws that clarify existing law”); Cookeville v. Leavitt, 531 F.3d 844, 849 (D.C. Cir. 

2008)(finding “no problem of retroactivity” when statute “clarified an ambiguity in existing 

legislation”); Pope v. Shalala, 998 F.2d 473, 483 (7th Cir. 1993) (“A rule simply clarifying an 

unsettled or confusing area of law ... is no more retroactive in its operation than a judicial 

determination construing and applying a statute to a case at hand”).2 

 1 “Because Congress thus has the power to change the law as to pending cases, its power to 

clarify the law-to confirm what the law has always meant-follows a fortiori.” Beverly 

Community Hosp. Aoss’n v. Belshe, 132 F.3d 1259, 1265 (9th Cir. 1997).

2 Most recently, the U.S. Department of Labor’s Administrative Review Board, a federal agency 

similar to the MSPB that has administrative-appellate jurisdiction over a number of other federal 

whistleblower laws, concluded that a “clarifying” amendment contained in the Dodd-Frank Act 
5

In this case, the legislative history and statutory language confirm, without any question, 

that §101 of the WPEA constituted a clarifying amendment and was thus fully applicable to 

pending cases. Congress explained that the WPA explicitly protected “any disclosure,” and the 

amendment was intended to clarify what Congress meant by the term “any.” S. Rep. 112-155, p. 

4. As a clarification of Congress’ original “intended meaning” of the scope of a protected 

disclosure, §101 must be applied to all pending cases.3 

II. FEDERAL CIRCUIT JURISPRUDENCE COMPELS GRANTING §101 

RETROACTIVITY.

It is well settled in the Federal Circuit “that Congress can unambiguously specify the 

retroactive effect of legislation if it decides to do so.” Caddell v. Dept. of Justice, 96 F.3d 1367, 

1371 (Fed. Cir. 1996). The Caddell court examined two factors to determine whether 

retroactivity was applicable: the language of the statute and the statute’s legislative history. Id. 

In this case, §101 of the WPEA meets both prongs of this test. 

As a threshold matter, §101 is completely distinguishable from the statutory provision at 

issue in Caddell where the court was asked to decide whether a new statutorily created right was 

retroactive. Given the complete lack of any congressional intent to the contrary, and the 

undisputed fact that the statutory clause in question created a new substantive right that did not 

exist prior to the amendments in question, the outcome in Caddell was consistent with well 

settled principles governing retroactivity. Caddell, at 1371 (“The legislative history of the 

statute does not elaborate on the statutory language.”).

 

served to “correct a misinterpretation” of prior law, and thus applied to “pending cases.” 

Gladitsch v. Neo@Ogilvy, 2012 WL 1003513 (S.D.N.Y.), citing to Johnson v. Siemens Building 

Technologies, ARB Case No. 08-032, ALJ Case No. 2005-SOX-15 (Dept. of Labor ARB Mar. 

31, 2011).

3 In addition to the WPEA’s clarifying amendment, the U.S. Supreme Court, in recent cases, has 

also clarified the meaning of the term “any” when used in a statute: “Of course the word ‘any’ ... 

has an ‘expansive meaning.’” Republic of Iraq v. Beaty, 556 U.S. 848, 856 (2009). 
6

However, the court in Caddell was careful to point out the types of evidence needed to 

overcome the presumption against retroactivity. The Court identified two such sources: 

language in the statute and language in the congressional history. Id. In regard to §101 both 

sources of authority exist, and both compel a holding that §101 of the WPEA is retroactive. 

First, it is indisputable that both the House and Senate reports, and the House and Senate bills 

themselves, demonstrate that the sponsors of the original bills understood that §101 of the 

WPEA was clarifying in nature and was intended to correct prior court decisions that had 

improperly interpreted Congress’ intent behind the meaning of “any disclosure” contained in the 

WPA. 

Second, the bill that actually passed both houses of Congress and signed by the President, 

titled §101 as a “clarification.” P.L. 112-199, §101. The titles used by Congress to designate 

different sections of the WEPA are very significant. Beverly Community Hospital, 132 F.3d at 

1265 (relying on the “title of the Act” to establish Congressional intent that amendment was 

clarifying). Congress only used the term “clarification” in the title of two of the twenty sections 

enacted into law in the WPEA. It is a well established principle of statutory construction that 

“where Congress includes particular language in one section of a statute, but omits it in another 

section of the same Act, it is generally presumed that Congress acted intentionally and purposely 

in the disparate inclusion or exclusion.” U.S. v. Gonzales, 520 U.S. 1, 5 (1997). This principle is 

applicable in interpreting the WEPA. Congress used the “particular language” signifying that 

§101 was a clarifying amendment, and did not use that term of art to identify the other sections 

of the Act which added new substantive rights or obligations, and were not simply clarifying 

amendments.

In this context, consistent with Cadell and other precedent, it is well established “that 
7

when an amendment is deemed clarifying rather than substantive, it is applied retroactively.” 

U.S. v. Donaghe, 50 F.3d 608, 612 (9th Cir. 1994). Also consistent with Cadell two factors upon 

which courts have in the past relied to conclude that a statute constitutes a “clarifying” 

amendment are the “titles of the relevant subsection” of a law and Senate and House Committee 

Reports. Brown v. Thompson, 374 F.3d 253, 259 (4th Cir. 2004). Accord., ABKCO Music v. 

LaVere, 217 F.3d 684, 689 (9th Cir. 2000) (“Normally, when an amendment is deemed 

clarifying” it is “applied retroactively”); Beverly Community Hospital, supra.

In this case, both the title of the relevant subsection of the law, along with the House and 

Senate Committee Reports unequivocally stating that §101 of the WPEA is a clarifying 

amendment, are consistent with Cadell, ABKCO, and Brown, and should be given retroactive 

effect. 

III. BECAUSE §101 IS A CLARIFYING STATUTE, IT MUST BE GIVEN GREAT 

WEIGHT BY THE MSPB EVEN IF THE BOARD WERE TO CONCLUDE THAT 

THE WPEA DOES NOT HAVE RETROACTIVE EFFECT.

It is well settled that courts grant substantial weight to congressional amendments that 

clarify legislative intent, even if the rule regarding retroactivity is not applicable. This principle 

of statutory construction is extremely well settled. See, e.g., Stockdale v. Atlantic Ins. Co., 87 

U.S. 323, 331 (1873) (it may be taken to be established, that a legislative body may by statute 

declare the construction of previous statutes so as to bind the courts in reference to all 

transactions occurring after the passage of the law, and may in many cases thus furnish the rule 

to govern the courts in transactions which are past); Fed. Hous. Admin. v. Darlington, Inc., 358 

U.S. 84, 90 (1958) (“[s]ubsequent legislation which declares the intent of an earlier law is ... 

entitled to weight when it comes to the problem of construction”); Glidden Co. v. Zdanok, 370 

U.S. 530, 541 (1962) (“‘the later law is entitled to weight when it comes to the problem of 
8

construction,’” quoting Fed. Hous. Admin. v. Darlington, Inc. “Especially this is so when the 

Congress has been stimulated by decisions of this Court to investigate the historical materials 

involved and has drawn from them a contrary conclusion”). 

The Supreme Court reiterated this principle in Red Lion, stating that “[s]ubsequent 

legislation declaring the intent of an earlier statute is entitled to great weight in statutory 

construction.” Red Lion Broad. Co. v. F.C.C., 395 U.S. 367, 380-381 (1969). The Court has 

continued to uphold this principle granting substantial weight to subsequent legislation. See, e.g., 

N.L.R.B. v. Bell Aerospace Co. Div. of Textron, Inc., 416 U.S. 267, 275 (1974) (“We have also 

recognized that subsequent legislation declaring the intent of an earlier statute is entitled to 

significant weight.”); South Carolina v. Regan, 465 U.S. 367, 392 (1984) (“These subsequently 

enacted provisions and the legislative understanding of them are entitled to ‘great weight’ in 

construing earlier, related legislation”); Loving v. United States, 517 U.S. 748, 770 (1996) 

(“subsequent legislation declaring the intent of an earlier statute is entitled to great weight in 

statutory construction)(internal citations and quotation omitted); United States v. Winstar Corp., 

518 U.S. 839, 891 (1996). Also see, Beverly Community Hosp. Ass’n, 132 F.3d at 1265 (“It has 

been established law since nearly the beginning of the republic ... that congressional legislation 

that thus expresses the intent of an earlier statute must be accorded great weight.”).

Significantly, two different U.S. Court of Appeals have applied this principle when 

interpreting the meaning of a protected whistleblower disclosure under other federal 

whistleblower laws. In these cases, the Fifth Circuit and Tenth Circuit were, like the MSPB 

today, asked to interpret whether a whistleblower law covered internal/official duty disclosures 

made to a supervisor. In both cases, the appellate courts looked toward congressional statements 

made in reference to amendments to other whistleblower laws and concluded that Congress 
9

intended the scope of protected activity to be broadly construed to cover the types of disclosures 

set forth in §101. 

In Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505 (10th Cir. 1985), the Tenth Circuit 

looked to the legislative history of the Federal Mining Safety Act (“FMSA”) as an interpretive 

guide to the Energy Reorganization Act (“ERA”) in the context of determining whether internal 

whistleblowers are protected and held that “the legislative history of the FMSA amendment 

shows that Congress did, in fact, intend the older version of the amendment to afford protection 

to internal complaints and the older version of the amendment is what the ERA provision was 

modeled after.” Id. at 1511. The Tenth Circuit further held that Congress changed the statutory 

language of the FMSA “not because its intent had changed, but because this intent had been 

incorrectly perceived by certain courts.” Id. at 1512. 

Likewise, in Willy v. Admin. Review Bd., 423 F.3d 483 (5th Cir. 2005), the Fifth Circuit 

relied upon an amendment to the ERA to clarify its holding regarding internal protected activity

under the Clean Air Act. The Fifth Circuit had originally issued a ruling under the ERA, 

consistent with the Federal Circuit holding in Willis, denying coverage to an employee who 

raised concerns to supervisors as part of his job. Id., at 501 n. 11, citing Brown & Root v. 

Donovan, 747 F.2d 1029 (5th Cir. 1984). However, after the Brown & Root ruling Congress 

amended the ERA to explicitly cover internal whistleblower disclosures. Id. Based on this 

amendment the Court effectively reversed its prior holding, admitting that Congress’ clarification 

had demonstrated that the prior court ruling was “incorrect.” Id. (“Congress clarified by statute 

that Brown & Root was incorrect in holding that complaints to employers were not protected 

under 42 U.S.C. § 5851.”). Notably, in Willy, the Fifth Circuit relied upon the congressional 

clarification to repudiate its own prior decision that had narrowly construed protected 
10

disclosures. Id.

Even if the MSPB were to decide that the WPEA should not be granted retroactive effect, 

the Board is still required to give “substantial weight” to Congress’ intent, as expressed in the 

WPEA, when interpreting the scope of protected activity under the WPA. Based on this new 

authority, and the undisputable fact that Congress intended to clarify the meaning of a protected 

disclosure in the original WPA, this Board should interpret the definition of a protected 

disclosure in § 2302(b)(8) consistent with the clarification provided by Congress in the WPEA. 

REQUEST TO PARTICIPATE IN ORAL ARGUMENT

The Amici request leave to participate in the oral argument in this matter. Dr. Chaturvedi 

is a former employee of the Department of Veterans Affairs whose WPA case may turn on the 

outcome of this Court’s ruling. See, MSPB Docket No. DA-1221-11-0471-W-3. He has a direct 

and personal stake in the outcome of this Board’s ruling in Day. The National Whistleblower 

Center has provided charitable assistance to federal employee whistleblowers since 1988, has 

been admitted to participate as an amicus curie in numerous whistleblower cases, and provided 

testimony before the Senate Homeland Security Committee regarding what would eventually be 

enacted as §101 of the WPEA, along with other non-clarifying reforms contained in the WPEA. 

See “S. 1358—The Federal Employee Protection of Disclosures Act,” Hearing on S. 1358 

before the Senate Committee on Governmental Affairs, S. Hrg. 108–414 (2003), pp. 18, 132 and 

203 (Testimony of the NWC) and NWC testimony cited in S. Rep. 112-155 at p. 11.

CONCLUSION

For the reasons set forth above, §101(b) of the Act must be applied to cases pending 

before the MSPB and the OSC as of the effective date of that statute. 
11

Respectfully submitted,

March 1, 2013 /s/ Stephen M. Kohn

Date Stephen M. Kohn, sk@kkc.com

/s/ David K. Colapinto

David K. Colapinto, dc@kkc.com

KOHN, KOHN & COLAPINTO, LLP

3233 P Street N.W.

Washington, D.C. 20007

(202) 342-6980

(202) 342-6984 (fax)

Attorney for Amici

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing Amicus brief was served by email, on the following 

person on this 1st day of March, 2013:

William D. Spencer

Clerk of the Board, Merit Systems Protection Board

1615 M Street NW

Washington, D.C. 20419

mspb@mspb.gov

/s/ David K. Colapinto

David K. Colapinto

Attorney for Amici