considerations of fairness to the individual managers might carry more weight, but that is not at
issue here. Second, assuming that the individual managers were aware that erroneous court
decisions insulated their acts of retaliation from WPA remedies, they were nonetheless expected
to know that retaliation against any subordinate because of disclosures of wrongdoing was still
wrong.

Regardless of whether the courts erroneously excluded such activities from WPA
protection, other civil service law and merit system principles regulate supervisory conduct. For
example, all federal managers know that vindictive retaliation based on a subordinate
employee’s disclosure of wrongdoing, regardless of the circumstances, could not satisfy the
efficiency of the service standard that governs their personnel decision-making authority. 5
US.C. § 7513. Additionally, managers are expected to know that they should act with high
standards of integrity, conduct and concern for the public interest, and that they should strive to
protect their employees from arbitrary action. 5 U.S.C. §§ 2301(b)(4), (b)(8)(A). Retaliation
against a public servant for exposing waste, fraud, abuse or corruption is an arbitrary use of
authority and can never serve the interests of the public or advance the efficiency of the service.

Thus, it cannot be said that a “retroactive” application of the WPEA to the personnel
actions in this appeal would alter the legitimate expectations of managers who might assert that
they relied on those decisions to retaliate. Even though the Federal Circuit majority weakened
whistleblower protections such that the WPA was construed not to restrict certain retaliatory
conduct, fundamental rules and policies governing the exercise of supervisory authority
restrained federal supervisors from using their authority to punish whistleblowers for reporting
wrongdoing in the course of duty or to the wrongdoer. The WPEA did not “sweep away settled

” Under regulations prescribed by the Office of Personnel Management, an agency may take actions “only for such
cause as will promote the efficiency of the service.” 5 U.S.C. § 7513.

20


We believe that irrespective of the clear evidence of Congress’s intent as discussed in
Part I supra, the Board, as the final decisional authority for the government in this administrative
appeal, must apply the WPEA to administrative decisions made after the WPEA’s effective date.
Unlike the Court’s decision in Landgraf, the Board’s decision in this appeal will not require a
retroactive application of new laws to already completed transactions. Because the government
did not complete its legal task of making a final decision before the effective date of the WPEA,
its final decision must be made under the provisions of the new Act. Thus, even if Congress had
not specifically instructed the Board to apply the WPEA to pending cases, the timing of the
Board’s decision on whether it has jurisdiction over appellant’s IRA appeal requires it to apply
the new provisions to this appeal. Cf Landgraf, 511 U.S. at 293 (“[T]he purpose of provisions
conferring or eliminating jurisdiction is to permit or forbid the exercise of judicial power — so
that the relevant event for retroactivity purposes is the moment at which that power is sought to
be exercised.”) (Scalia, J., concurring).

D. Willis and Huffman have wrongly denied WPA protection to whistleblowers for
more than a decade.” In response, Congress has spent the last eleven years trying to legislatively
overrule these decisions; and finally it has succeeded. S. Rep. No. 112-155, at 40 (2012).
Evidence of clear intent to overrule the court’s erroneous decisions appears throughout the
WPEA’s legislative record. Section 101 of the WPEA states: “A disclosure shall not be
excluded from [the whistleblower protection statute] because (A) the disclosure was made to a

supervisor or to a person who participated in an activity that the employee or applicant

§ Prior to the WPEA, the Board mitigated the effect of the Federal Circuit’s criticized decisions to allow some
disclosures that might otherwise have been excluded from coverage under those decisions to be protected by the
WPA. See, e.g., Stolarczyk v. Dep't of Homeland Sec., 2012 MSPB 112, 2012 WL 4372992 (Sept. 26, 2012)
(holding that investigating misuses was outside of employee’s normal duties); Farrington v. Dep’t of Transp., 118
M.S.P.R. 331 (2012); Ontivero v. Dep't of Homeland Sec., 117 M.S.P.R. 600 (2012) (holding that disclosure to
upper management was not within normal channels); Tullis v. Dep't of the Army, 117 M.S.P.R. 236 (2012) (holding
that employee’s position did not require reporting of wrongdoing and therefore was not part of the employee’s
normal duties).

14


ARGUMENT

L. CONGRESS MADE ITS INTENT CLEAR THAT THE WPEA APPLIES TO ALL
PENDING CASES

A. Absent limited constitutional restrictions, Congress may enact laws that have a
retroactive effect. Landgraf, 511 U.S. at 267-68. To accomplish this, Congress is required to
make its intentions clear so that reviewing courts can be assured that 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.” Jd, at 272-73.

In S. 743, Congress has met its burden. The WPEA’s principal authors state clearly and
unambiguously that the law applies to “proceedings . . . pending on [the Acts effective date].”
S. Rep. No. 112-155, at 52 (2012). The Senate authors’ complete statement reads as follows:

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. 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.
Id. The Senate Report reflects the views of the Senate Committee on Homeland Security and
Governmental Affairs, which has approved a version of this legislation in every Congress since
2002. Jd. at 40. The Report was filed by the Committee without any dissenting views on April
19,2012. 158 Cong. Rec. $2545 (2012). Every Senator had the opportunity to review the
statement of intent in the Report prior to the bill’s unanimous approval by the Senate on May 8,

2012. See “Rule 6: Committee Reporting Procedures” included in Rules of Procedure of the

Committee on Homeland Security and Governmental Affairs, S. Prt. 112-11, at 18 (Mar. 2011).

* It is important to note that under the Committee’s rules, any Member that wishes to file an alternative or dissenting
view may do so and those views are included in the Committee Report. “Rule 6: Committee Reporting Procedures”
included in Rules of Procedure of the Committee on Homeland Security and Governmental Affairs, S. Prt. 112-11, at
18-19 (Mar. 2011).


expectations suddenly,” Landgraf, 511 U.S. at 266, nor did it “attach new legal consequences” to
otherwise legal actions. /d. at 269. The WPEA did nothing to unsettle the settled expectations of
federal supervisors; it merely reinforced the expectation that supervisors exercise their
discretionary authority in compliance with existing civil service law and merit system
principles.’ See Watkins v. United States Postal Serv., 85 M.S.P.R. 141, 144 (2000) (applying
final rule retroactively to prevent certain disadvantaging employee if interim rule applied;
finding final rule did materially alter duties, liabilities or rights of employer).

Iv. AFFIRMING THE AJ’S OPINION WOULD REQUIRE OSC TO FLOUT THE

EXPRESS WILL OF CONGRESS

On the eve of the WPEA’s effective date, OSC confronted the same issue presented in
this appeal: whether to apply overruled court decisions to pending OSC complaints. If
expediency were the sole criterion, there is no question that applying Willis and Huffman would
help OSC to close complaints more quickly. Prior to the WPEA, OSC ~ as it was required to do
~ applied Willis and Huffman and the other overturned court decisions to close potentially valid
whistleblower claims.

OSC considered whether the Landgraf presumption against retroactivity required it to
continue closing pending complaints that arose from pre-Act personnel decisions. Because
Congress expressed its intent so clearly, we concluded that to continue to apply the overturned
decisions to OSC complaints would flout the express will of Congress. Federal whistleblowers
had waited long enough to have their rights under the WPA restored.

On November 27, 2012, OSC announced publicly that the new legislation would take

effect on December 27, 2012. And on the effective date, we instructed our staff to begin

* See Scott v. Dep't of Justice, 69 M.S.P.R. 211, 239-40 (1995) (finding no retroactive effect in applying new
knowledge-timing presumption to pending appeal; new presumption does not impair rights party possessed when he
acted).

21


considerations of fairness dictate that individuals should have an opportunity to know what the
law is and to conform their conduct accordingly ....” Jd. at 265.

Cc. The concerns that were persuasive in Landgraf, however, are not sufficiently
evident here to forego application of “the first rule” of construction ~ application of the law that
is in effect at the time of decision. As we noted earlier, the government is not a private employer
and its interests cannot be equated with the interests of the nations’ employers in Landgraf.® The
government’s primary interest here, as expressed in the WPA and the WPEA, is to create a work
environment that makes it safe for employces to blow the whistle, even in the course of their
duties and even to the wrongdoer. In order to further this important interest, Congress
determined over three decades ago that the government will protect whistleblowers and make
them whole if officials, acting beyond the limits of their legal authority, cause them harm
because of whistleblowing activity. If this remedial process causes minor disturbances to
personnel management, they are more than offset by savings to the taxpayers from increased
government efficiency and accountability through an effective whistleblower protection
program. The WPA assigned to the head of every agency the responsibility to prevent prohibited
personnel practices and ensure their agency complies with applicable civil service laws, rules and
regulations, including the very whistleblower protections at stake in this appeal. 5 U.S.C. §

2302(c).

° The differences between imposing liabilities on the government and imposing liabilities on individuals was
discussed in Lyons v, United States, 99 Fed. Cl. 552, 556-60 (Fed. Cl. 2011). In Lyons, the Court of Federal Claims
stated that Supreme Court precedent on retroactivity focused on private parties and, therefore, was inapposite as to
Congressional changes to government liability. /d. at 556 (comparing Landgraf v. USI Film Prods., 511 U.S. 244,
271 n.25 (1994), with Republic of Austria v. Altmann, 541 U.S. 677, 696 (2004). The Lyons Court applied the three-
factor test established by the Federal Circuit in Princess Cruises v, United States, 397 F.3d 1358, 1362-63 (Fed. Cir.
2005), to determine whether the Justice for All Act had retroactive effect. /d. at 558. First, the court held that the
increase in the government's liability did not impose any new duties or create new prohibitions since the
government had accepted liability before and after the enactment of the statute. /d. Second, the court held that
government officials would not have refrained from committing violations if they had been aware of the impending
changes in the statute. /d. at 559. Third, the court stated that the third factor focused on individual rights, and
because the government bore the burden, no burden on individual rights was implicated. Jd.

18


speculation in order to construct ambiguity where none exists, the Board should follow the

straightforward directions Congress provides and allow this appeal.

I. EVEN IF CONGRESS FAILED TO MAKE ITS INTENTIONS CLEAR,
APPLYING THE WPEA TO PENDING CASES WOULD NOT CONFLICT
WITH LANDGRAF
A. Assuming that the Board concludes that Congress failed to evince a clear intent to

apply the new law to pending cases — a conclusion that we believe has been disproved — the

Board still should not apply the Landgraf retroactivity doctrine to forbid the WPEA’s application

to this appeal. Congress did not create new rights and liabilities in the WPEA when it overruled

the flawed decisions of the Federal Circuit. Rather, Congress, as it explicitly states, clarified
existing law by restoring earlier protections granted by the WPA that were eliminated by
erroneous court decisions. When Congress acts to clarify existing law, retroactivity is not at
issue. See, Republic of Iraq v. Beaty, 556 U.S. 848, 864 (2009); Brown v. Thompson, 374 F.3d

253 (4th Cir. 2004); Piamba Cortes v. Am. Airlines, Inc., 177 F.3d 1272, 1283 (11th Cir. 1999).
The courts “have long recognized that clarifying language is not subject to any

presumption against retroactivity and is applied to all cases pending as of the date of enactment.”

ABKCO Music, Inc. v. LaVere, 217 F.3d 684, 689 (9th Cir. 2000). In determining whether an

amendment clarifies or changes an existing law, a court looks to several factors, including

statements of intent made by the legislature that enacted the amendment. See, e.g., Piamba

Cortes, 177 F.3d at 1284 (“[C]ourts may rely upon a declaration by the enacting body that its

intent is to clarify [a] prior enactment.”); Liquilux Gas Corp. v. Martin Gas Sales, 979 F.2d 887,

890 (Ist Cir. 1992) (using the “legislature’s expression of what it understood itself to be doing”

to determine whether an amendment is a clarification).


intent is unclear, he creates an artificial conflict where none exists. His artifice for inferring
conflict is a contrary statement that he found in a House Committee Report to different bill, H.R.
3289. That statement indicates that H.R. 3289, if passed, would apply only to legal actions (e.g.,
Board appeals) filed after the law’s effective date. AJ Order at 9. But the AJ overlooks the fact
that H.R. 3289 failed to pass in either chamber, making its relevance questionable. H.R. 3289,
112th Cong. (discharged by H.R. Comm. on Intelligence, Oct. 1, 2012). Rather than rely on
evidence from a report to a failed bill in the House, the AJ should have credited positive
evidence of the House members’ support for applying S. 743 to pending cases.

For good reason, all legislative history cannot be weighed equally. The Supreme Court
has noted, “In surveying legislative history we have repeatedly stated that the authoritative
source for finding the Legislature’s intent lies in the Committee Reports on the bill, which
“represen|ts] the considered and collective understanding of those Congressmen involved in
drafting and studying proposed legislation.’” Garcia v. United States, 469 U.S. 70, 76 (1984)
(quoting Zuber v. Allen, 396 U.S. 168, 186 (1969)). “Failed legislative proposals,” the Court has
observed, are “a particularly dangerous ground on which to rest an interpretation of a prior
statute ....” United States v. Craft, 535 U.S. 274, 287 (2002) (quoting Pension Benefit Guar.
Corp. v. LTV Corp., 496 U.S. 633, 650 (1990)). “Congressional inaction lacks persuasive
significance because several equally tenable inferences may be drawn from such inaction,” the
Court has explained. Jd. (quoting Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver,
N.A., 511 U.S. 164, 187 (1994)).

The Supreme Court’s distrust of the history of failed bills is instructive here. Both houses
of Congress passed S. 743, not H.R. 3289, by unanimous consent. 158 Cong. Rec. $6737

(2012); 158 Cong. Rec. $6761 (2012). In doing so, Congress provided clear evidence of its


The House affirmed and adopted the Senate’s statement of intent to apply the WPEA to
pending cases. Although overlooked by the AJ, two pieces of positive evidence confirm the
House shared the Senate’s intent. First, immediately before the House considered S. 743,
Congressman Todd Platts, one of the principal sponsors of whistleblower reform in that
chamber, told his colleagues from the floor of the House that the new law they were about to
pass would apply to “pending” Board cases. In fact, he read verbatim the Senate Report’s
statement of intent into the record. 158 Cong. Rec. E1664 (2012). Second, although the House
struck the section of S. 743 entitled, “Intelligence Community Whistleblower Protections,” from
the bill, it left untouched the portions of Title 1 of S. 743 that concerned protected disclosures by
federal employees. S. 743, 112th Cong. § 1 (as passed by House, Sept. 28, 2012). Included in
Title I are the provisions that overturned erroneous court decisions interpreting the WPA that are
the subject of the Senate’s statement of intent. Id.

There is no evidence that the application of the WPEA to pending cases caused any
comment or reaction from House members in the five months that they had to review S. 743
before passing it. On September 28, 2012, the House adopted S. 743 by unanimous consent. S.
743, 112th Cong. (as passed by House, Sept. 28, 2012). When S. 743 returned to the Senate with
the House amendment striking the intelligence community provision, the Senate passed for a
second time S. 743 without dissent. S. 743, 112th Cong. (as passed by Senate, Nov. 13, 2012).
OSC has found no evidence in the legislative history to S. 743 that suggests a contrary intention
to the one expressly provided by the bill’s authors. Therefore, the Board should apply the law to
pending cases as Congress clearly intends.

B. Notwithstanding the clarity with which OSC sees evidence of congressional

intent, the AJ is not persuaded by this evidence. To reach his conclusion that congressional


Unlike the circumstances confronting the Court in Landgraf, where notions of fairness
caused the Court to spare private employers the consequences of new economic remedies, the
circumstances here offer a distinct situation in which the interests of employer, employee and
citizen are all one and the same. All share a common interest in protecting federal employees
under the WPA, and thereby promoting government efficiency and accountability.

Denying the appellant the benefit of Congress’s restorative law would therefore
undermine, rather than promote, the very governmental interest that Congress advances in the
WPEA. That interest is so fundamental to good government that it easily outweighs competing
interests, e.g., potential administrative costs, or liability for back pay or attorneys’ fees. The
WPEA is intended to strengthen the protections for whistleblowers “so that they can more
effectively help root out waste, fraud, and abuse in the federal government.” S. Rep. No. 112-
155, at 1 (2012). Acknowledging appellant’s IRA right here would only further that legislative
purpose.

D. Arguably, one potential interest cited by the Court in Landgraf might weigh
against retroactive application — that managers should have the opportunity to know that Willis
and Huffman have been overruled before they can be deemed responsible for retaliation. But to
embrace this position would be to sanction whistleblower retaliation on the dubious and cynical
ground that a retaliator knew that Federal Circuit decisions made the WPA remedies unavailable
to his victim.

Clearly this case presents a different set of equities from those facing the Court in
Landgraf. First, the individuals responsible for the retaliation here will suffer no harm or penalty
if an application of the WPEA to their conduct results in a finding of retaliation. In an IRA, only

corrective remedies are available. 5 U.S.C. § 1221(g). If this were a disciplinary proceeding,

19


whistleblower protection laws). One of the remedial purposes of the WPEA was to correct this
oversight. S. Rep. No. 112-115, at 2 (2012). Congress therefore had rational grounds to treat
TSA employees differently because unlike most federal employees, TSA employees had been
without WPA coverage.

It is not uncommon for Congress to provide a 30-day grace period prior to a new statute’s
effective date. This allows some time for an orderly implementation of the new law. And while
the government would reasonably benefit from having a grace period to implement many of the
WPEA’s new provisions, it is difficult to see why it would require any grace period to prepare
for the extension of the WPA to TSA employees when it already has in place established
procedures for non-TSA federal employees. Furthermore, it would have been reasonable for
Congress to accelerate coverage for TSA employees in order to protect them from managers who
might be tempted to exploit a delayed effective date by hurrying personnel actions before their
employees’ rights vest. See Landgraf, 511 U.S. at 267-68 (noting that retroactivity provisions
often serve legitimate purposes including preventing circumvention of new statute in interval
immediately preceding passage). Thus the AJ’s conclusion that there was “seemingly no reason”
to make the TSA provisions effective thirty days sooner is incorrect. There were rational
reasons, even if Congress failed to expressly state them.

Congress took over a decade to pass legislation to overturn the erroneous court decisions
that have constricted the protections of the WPA for a generation of whistleblowers. In the
Board’s first opportunity to apply the WPEA, these protections still appear to be in jeopardy.

We believe that the AJ’s argument in a footnote is too slender a reed upon which to justify

depriving appellant the benefit of the WPEA’s restored protections. Rather than engage in


UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

THOMAS F. DAY,
Appellant, DOCKET NUMBER
DC-1221-12-0528-W-1

ve

DEPARTMENT OF HOMELAND
SECURITY,
Agency.

i

BRIEF ON BEHALF OF THE UNITED STATES OFFICE OF SPECIAL COUNSEL AS
AMICUS CURIAE

IDENTITY OF THE AMICUS

Amicus, the United States Office of Special Counsel (OSC), is an independent federal
agency charged with, inter alia, protecting federal employees, former federal employees and
applicants for federal employment from “prohibited personnel practices,” as defined in 5 U.S.C.
§ 2302(b). In particular, OSC is responsible for protecting federal employees against retaliation
when they 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 disclosure is
specifically prohibited by law. See 5 U.S.C. § 2302(b)(8).

On January 16, 2013, the Board invited OSC to file an amicus brief in light of OSC’s
expertise with respect to whistleblower reprisal. MSPB Order dated January 16, 2013, at 2; 5
C.F.R. § 1201.34(e)(1). It set a filing deadline of February 15, 2013. In a subsequent order, the

Board set a new filing deadline for all amicus briefs of March 1, 2013. MSPB Order dated


whistleblower protection law. Prior to the 1994 Amendments, the WPA omitted psychiatric
examinations as a basis for a whistleblower retaliation claim. Caddell, 96 F.3d at 1371. Clearly,
the court in Caddell confronted a provision that conferred new rights on federal whistleblowers.
In contrast, this case concerns only the restoration of whistleblower rights that were erroneously
denied by the court. While the 1994 Amendments created new rights where none existed, the
WPEA merely clarifies that rights created under the WPA, once denied by court decision, must
be respected again. Therefore, the AJ’s reliance on Caddell to deny appellant his IRA is
misplaced.*

Cc. The Landgraf doctrine is also not applicable to this appeal for another reason.
Unlike the role played by an Article III court (as in Landgra/), the Board plays a wholly different
role. It serves as an adjudicatory body in an administrative appeal. It is “taking final action” on
a matter under its administrative jurisdiction. 5 U.S.C. § 1204(a). The Supreme Court has found
that, under these circumstances, the Board is to apply the new provisions of the WPEA. See,
Ziffrin, Inc. v. United States, 318 U.S. 73 (1943). “We are convinced that the [Interstate
Commerce] Commission was required to act under the law as it existed when its order ... was
entered ... [A] change of law pending an administrative hearing must be followed in relation to
permits for future acts. Otherwise the administrative body would issue orders contrary to the
existing legislation.” /d. at 78. Accord, Aero Mayflower Transit Co., Inc. v. Interstate
Commerce Comm’n, 686 F.2d 1 (D.C. Cir. 1982). See also, Pentheny Ltd. v. Gov't of Virgin
Islands, 360 F.2d 786, 790 (an administrative “agency is required to act under the law as it stands
when its order is entered. A change in law pending an administrative determination must be
followed.”); Fassilis v. Esperdy, 301 F.2d 429, 432 (2nd Cir. 1962) (statutory change between

4 The AJ’s reliance on Lapuh v. Merit Systems Protection Board, 284 F.3d 1277 (Fed. Cir. 2002), and Styslinger v.
Department of the Army, 105 M.S.P.R. 223 (2007), for the same proposition is similarly misplaced. AJ Order at 11.

12


When enacting the WPEA, Congress repeatedly said that its purpose was to clarify
existing law. For example, the title of section 101 is “Clarification of Disclosures Covered.”
Pub. L. No. 112-199, 126 Stat. 1465 (2012). The Senate Report states, “Section 101 of S. 743
amends the WPA to overturn decisions narrowing the scope of protected disclosures by
clarifying that a whistleblower is not deprived of protection ....” S. Rep. No. 112-155, at 5
(2012) (emphasis added). It also states, “Section 101(b) also clarifies that a disclosure is not
excluded from protection because it was made during the employee’s normal course of duties
....”” Id. at 41 (emphasis added),

“The Supreme Court has long instructed that ... ‘subsequent legislation declaring the
intent of an earlier statute’ be accorded ‘great weight in statutory construction.’” Brown v.
Thompson, 374 F.3d 252, 260 (4th Cir. 2004) (citing Loving v. United States, 517 U.S. 748, 770
(1996)). The Board should similarly give great weight to Congress’s repeated declarations that
the WPEA clarifies the WPA and apply the Act’s clarifications to this case.

Furthermore, as the WPEA is clearly a remedial statute, it should be liberally construed to
achieve its ends. If a retroactive interpretation “will promote the ends of justice,” the Court has
stated, the statute should “receive such construction.” Landgraf, 511 U.S. at 264 n.16 (citing
Karl N. Llewellyn, Remarks on the Theory of Appellate Decisions and the Rules of Canons
About How Statutes are to be Construed, 3 Vand. L. Rev. 395, 402 (1950)).

B. The AJ relied on the Federal Circuit’s decision in Caddell v. Department of
Justice to presume that Congress did not intend to apply the WPEA to appellant’s appeal. 96
F.3d 1367 (Fed. Cir. 1996); AJ Order at 10. The facts in Caddell, however, are distinguishable
from the facts in this case. In Caddell, an employee sought the benefit of the 1994 Amendments

to the WPA which recognized psychiatric testing as a new actionable personnel action under the


intent that “the Act’s provisions shall be applied . . . in proceedings pending on or after [the
effective date].” S. Rep. No. 112-115, at 52 (2012). In light of this undisputed evidence in the
legislative record of S. 743, the contrary House Report to H.R. 3289 has no probative value in
determining the legislature’s intent.

C. Ina footnote to his opinion, the AJ identifies a second piece of evidence that he
believes demonstrates ambiguity in Congress’s intentions. He notes that while almost all of the
provisions of the WPEA take effect thirty days after the President’s signature, the Act provides
whistleblower protection rights to TSA screeners thirty days earlier: on the date of the
President’s signature. AJ Order at 10 n.1. The AJ speculates that if Congress intended the
WPEA to apply 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.” Jd. The AJ does
not elaborate on this point beyond citing to a Board decision that held a statute should be
construed so that nothing in it “shall be superfluous, void, or insignificant.” Jd. (citing Special
Counsel v. Wilkinson, 104 M.S.P.R. 253, 261 (2006)). Thus we are left to speculate on its
meaning. Apparently, the AJ believes that if the Act applied to all pending cases — as even he
acknowledges the legislative history to S. 743 indicates — there would have been no reason for
Congress to hasten the Act’s effective date for only TSA cases. Although unstated, the
implication from this footnote is that Congress could not have intended to apply the WPEA to
pending cases because if it had, it would have had no reason to provide protection sooner for just
one class of employees.

This point, however, trades on fallacy. When the WPEA was being considered, TSA
employees had been excluded from the protections of the WPA. See Schott v. Dep't of

Homeland Sec., 97 M.S.P.R. 35, 40-47 (2004) (discussing history of excluding screeners from


evaluating all pending whistleblower retaliation complaints without regard to the overturned
decisions. We believe this was the right decision, the one intended by Congress.
CONCLUSION
Based on the foregoing, the Special Counsel urges the Board to remand this case to the

AJ with instructions to allow appellant’s IRA to proceed in accordance with the WPEA.

Respectfully submitted,

Carolyn Lerner
Special Counsel

Bruce D. Fong*
Associate Special Counsel

Rachel A. Venier
Supervisory Attorney

Malvina Hryniewicz
Attorney

U.S. Office of Special Counsel
1730 M Street, N.W., Suite 300
Washington, D.C. 20036

Fax: (202) 653-5151
mhryniewicz@osc.gov

U.S. Office of Special Counsel*
S.F. Bay Area Field Office

1301 Clay Street, Suite 1220N
Oakland, CA 94612

(510) 637-3464

Fax: (510) 637-3474

22


by the public, the government and federal managers and employees in promoting greater
efficiency and transparency through whistleblower protection.
STATEMENT OF FACTS

Thomas Day is an employee of the U.S. Coast Guard. In his IRA appeal, he challenges
various personnel actions as whistleblower retaliation under the Whistleblower Protection Act
(WPA). He alleges that on July 1, 2010, he provided his manager information that showed
unallowable costs in the agency’s acquisition of an aircraft. He alleges that this information
evinced a violation of law. He further alleges that because of his disclosure, his supervisory
chain retaliated against him. He filed an OSC complaint and, subsequently, an IRA appeal under
the WPA. AJ Order at 1-2.

In the IRA appeal, the AJ concluded that his alleged disclosures appear to be excluded
from protection under the WPA based on the principles set forth in Huffman. Id. Specifically,
the AJ found based on prehearing submissions that appellant made his disclosures in the normal
course of his duties and possibly to an alleged wrongdoer. The AJ concluded that disclosures
made in the normal course of duties were not protected under Huffinan. Id. at 3. Nonetheless,
the AJ addressed whether the result might be different under the WPEA reforms that were soon
to take effect. The AJ anticipated the Act’s potential applicability because, as he noted, the
WPEA would overturn decisions like Huffman. Relying on the retroactivity doctrine in
Landgraf, he concluded that the new provisions of the WPEA could not save appellant’s IRA.

Id, at 10. Nevertheless, he found good cause for interlocutory review. /d. at 12.

* Congress did not specifically identify Huffman as a decision that it intended to overturn in the WPEA. It did
overturn by name Willis v. Department of Agriculture, 141 F.3d 1139 (Fed. Cir. 1998), an earlier Federal Circuit
decision that the Huffman court relied upon. Both cases stand for the proposition that disclosures that occur in the
performance of an employee’s normal duties through normal channels or that are made to the alleged wrongdoer are
not protected by the WPA. Therefore, we agree with the AJ’s determination that the WPEA effectively overturns
Huffman.


reasonably believed to be covered by [the whistleblower statute].” Pub. L. No. 112-199, § 101,
126 Stat. 1465, 1466 (2012). Concerning protected disclosures made in the normal course of
duties, the same section provides:
If a disclosure is made during the normal course of duties of an employee, the disclosure
shall not be excluded from subsection (b)(8) if 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, took, failed to take, or threatened to take or fail to take a
personnel action with respect to that employee in reprisal for the disclosure.
Id.; see also 8. Rep. No. 112-155, at 5 (2012) (“Section 101 of S. 743 overturns several court
decisions that narrowed the scope of protected disclosures.”); S. Rep. No. 112-155, at 4
(“Unfortunately, in the years since Congress passed the WPA, the MSPB and the Federal Circuit
narrowed the statute’s protection . .. . [T]his Committee explained that the 1994 amendments
were intended to reaffirm the ... long-held view that the WPA’s plain language covers any
disclosure.”). The Senate Report further explains:
Section 101 of S. 743 amends the WPA to overturn decisions narrowing the scope of
protected disclosures by clarifying that a whistleblower is not deprived of protection just
because the disclosure was made to an individual, including a supervisor, who
participated in the wrongdoing... .
Finally, an employee is not deprived of protection merely because the employee made the
disclosure in the normal course of the employee’s duties, provided that actual reprisal
occurred... .
S. Rep. No. 112-155, at 5.
Thus there can be no doubt based upon this record that Congress intends for
whistleblowers to receive the full range of WPA protections including protections for disclosures

made to the wrongdoer or in the normal course of duties. We believe that the Board must apply

the WPEA to decisions made after the Act’s effective date.

1S


intended scope.” /d. at 267. As the Court noted in Landgraf, “Retroactivity provisions often
serve entirely benign and legitimate purposes, whether to respond to emergencies, to correct
mistakes, to prevent circumvention of a new statute in the interval immediately preceding its
passage, or simply to give comprehensive effect to a new law Congress considers salutary.” Jd.
at 267-68.

The Court observed further in Landgraf that “{a]ny test of retroactivity will leave room
for disagreement in hard cases, and is unlikely to classify the enormous variety of legal changes
with perfect philosophical clarity.” /d. at 270. By applying “familiar considerations of fair
notice, reasonable reliance, and settled expectations,” the Court explained, judges would be able
to exercise sound guidance in making these difficult decisions. Jd.

B. A common thread in civil retroactivity cases that fail the Court’s criteria for “fair
notice, reasonable reliance, and settled expectations” is evidence that a private party would be
disadvantaged economically or otherwise deprived of a significant personal right by the law’s
retroactive application. See Landgraf, 511 U.S. at 269-74 (discussing cases). In Landgraf, an
employee attempted to benefit from provisions in the Civil Rights Act of 1991 that offered the
prospects of compensatory and punitive damages in sexual harassment claims. The new law,
however, did not take effect until after the employee’s claim for equitable relief under the
existing law, the Civil Rights Act of 1964, had been rejected by the district court. Seizing on the
basic unfairness of retroactively applying new economic penalties to the nation’s unsuspecting
employers for past deeds, the Court denied the employee’s appeal.

The prospect for unfairness in Landgraf is easily grasped. The consequences of applying
the 1991 reforms retroactively to virtually every employer in the nation were enormous and the

potential for unfair surprise was undeniable. As the Court stated in Landgraf, “Elementary

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OSC respectfully submits that the AJ’s decision was erroneous. Under Landgraf, the
WPEA must be given retroactive effect, when a clear expression of congressional intent endorses
that result. With respect to the WPEA, such an endorsement is plain and unmistakable.
Congress explicitly stated that the WPEA would apply to all “pending” Board cases. In finding
ambiguity, where none existed, the AJ mistakenly relied on a statement casting doubt on the
retroactivity of a wholly different statute from the WPEA, indeed, a statute Congress never
enacted.

Landgraf does not support a refusal to apply the WPEA to the present case. The
clarification of existing law does not constitute a retroactive application of law. All that is at
stake here is the application of specific provisions of the WPEA that expressly overrule
Huffman’ s erroneous interpretation of what constitutes protected whistleblowing.

Additionally, the Board is an administrative, adjudicatory body. As such, under Supreme
Court precedent, it should apply the law that exists when it issues its decision. In rendering such
a decision on the legality of a personnel action, the Board acts in the present. It takes the final
action on the propriety of a personnel action. In doing so, it must follow the law then existing, in
this case, the WPEA.

In any event, the AJ erred in holding that Landgraf poses an obstacle to the application of
the WPEA to IRAs pending on its effective date. Landgraf only cautions against applying
existing law retroactively when to do so would undermine important values. As will be seen,
retroactive application of the WPEA to insure that all federal whistleblowers receive the same
rights and protections from their government cannot, in any reasonable manner, be construed as

either harmful or unfair. To the contrary, retroactivity will promote the common interests shared


February 5, 2013, at 1.! Although OSC has authority to participate in this appeal as an
intervenor, 5 U.S.C. § 1221(c); 5 C.F.R. § 1201.34, OSC has determined that it is sufficient for
purposes of advising the Board on the legal issues in this case that we participate as amicus
curiae.

STATEMENT OF THE ISSUE

Whether the Board should apply Federal Circuit decisions that Congress legislatively
overturned in the Whistleblower Protection Enhancement Act of 2012 (WPEA) to individual
right of action (IRA) appeals that are pending with the Board on the WPEA’s effective date?

INTRODUCTION AND SUMMARY

On December 14, 2012, Administrative Judge Ronald J. Weiss certified for interlocutory
appeal a finding that appellant’s IRA, which was pending on the effective date of the WPEA,
should be governed by the Federal Circuit’s decision in Huffman v. Office of Personnel
Management, 263 F.3d 1341 (Fed. Cir. 2001). Although the WPEA reversed Huffman, the AJ
declined to apply the statute retroactively, relying on the Supreme Court’s decision in Landgraf
v. USI Film Products, 511 U.S. 244 (1994). According to the AJ, Congress failed to provide
adequate evidence of its intent to give retroactive effect to the WPEA. Accordingly, the WPEA,
which would purportedly attach new legal consequences to personnel actions taken before its
enactment, could not be applied retroactively under Landgraf. AJ Order at 10. The parties
requested that the AJ certify the issue for interlocutory review, and the AJ agreed relying on
criteria set forth at 5 C.F.R. § 1201.92. He stayed all other proceedings in the case pending the

Board’s review. AJ Order at 12.

"Tn the Order, the Board stated it would serve OSC’s brief on the parties. MSPB Order dated February 5, 2013, at
1. Thus, OSC has not served this brief on the parties.


the time of filing the application and the decision required the Immigration Service to apply the
new amendment).

This authority is consistent with the Board’s mission and function. In this case, the
Board must determine whether the employer’s personnel actions against appellant violated the
WPA. The Board is performing an administrative function for the Executive Branch, not the
Judicial Branch. To perform that function, Congress empowered the Board to “order any Federal
agency or employee” to comply with its determination. 5 U.S.C. § 1204(a). And when the
Board makes its decision, that decision will be the government's “final action” on the matter.
Only then will the matter be ripe for judicial review. 5 U.S.C. § 1221(h).

Thus, the issue of retroactivity cannot be viewed solely through the lens that the Court
employed in Landgraf. Instead, the Board should look to the Court’s decision in Ziffrin to
determine which law to apply. The Board is not merely adjudicating a past dispute between the
appellant and his employer. Although the personnel actions at issue have already occurred, the
government’s final administrative determination of whether those actions should stand has yet to
occur. The final resolution of these actions must await the Board’s final administrative decision,
and that certainly will occur after the effective date of the WPEA.

Federal agencies “do not have the authority to repeal or make ineffective Congressional
statutes regulating conduct in a comprehensive fashion which are passed separately from the
agency’s enabling or organic act.” United States v. Maes, 2007 WL 611246 (E.D. Cal. 2007).
The Constitution grants to the legislature the power to enact laws and to the executive the
responsibility to implement them. “The Constitution’s grant of executive authority does not
include the right to nullify legislative acts or ignore directives.” Olegario v. United States, 629

F.2d 204, 224 (2nd Cir. 1980).


Ill. © GRANTING APPELLANT AN IRA RIGHT WOULD NOT CONSTITUTE AN
IMPERMISSIBLE RETROACTIVE APPLICATION OF LAW UNDER
LANDGRAF
A. Assuming, arguendo, that the Board determines that Landgraf does apply to post-

WPEA decisions, a retroactive application of the Act to these facts would nevertheless be

permissible under Landgraf.

The Board must choose between two cannons of statutory construction on retroactivity.
“The first,” as explained by the Court in Landgraf, “is the rule that ‘a court is to apply the law in
effect at the time it renders its decision.” Landgraf, 511 U.S. at 264, 277 (citing Bradley v.
School Bd. of Richmond, 416 U.S. 696, 711 (1974)). The second is simply a judicial
presumption against retroactivity. /d. at 265.

The Constitution prohibits the enactment of particular laws that have a retroactive effect:
e.g., the Ex Post Facto Clause concerning retroactive criminal punishment; Article I, § 10, cl. 1,
concerning state laws impairing the obligation of contracts; the Fifth Amendment, concerning
the deprivation of a person’s property rights without due process or just compensation; and Art.
1, §§ 9-10, concerning Bills of Attainder. Jd. at 266. Otherwise, the Constitution imposes only
“modest” impediments to the enactment of retroactive laws that fall outside these clearly cabined
areas. Id. at 267,272.

The Court’s rule in Landgraf that disfavors retroactivity derives not from the words of the
Constitution but from the values underlying it. Thus, from the Ex Post Facto Clause, Justice
Thurgood Marshall found support for the principles that individuals should receive “fair
warning” and that “arbitrary and potentially vindictive legislation” should be restrained. Jd.
(citing Weaver v. Graham, 450 U.S. 24 (1981)). However, “the potential unfairness of

retroactive civil legislation is not a sufficient reason for a court to fail to give a statute its

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