THOMAS F. DAY v. DEPARTMENT OF HOMELAND SECURITY

Docket # DC-1221-12-0528-W-1

Response to Agency Brief in Response to Amicus Briefs Regarding Retroactivity of the WPEA of 

2012 dated 2/5/2013

Summary Page 

Case Title : THOMAS F. DAY v. DEPARTMENT OF HOMELAND SECURITY

Docket Number : DC-1221-12-0528-W-1

Pleading Title : Response to Agency Brief in Response to Amicus Briefs Regarding Retroactivity 

of the WPEA of 2012 dated 2/5/2013

Filer's Name : Nicole M. Heiser

Filer's Pleading Role : Agency Representative

Details about the supporting documentation

N/A

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Table of Contents
THOMAS F. DAY v. DEPARTMENT OF HOMELAND SECURITY

Docket # DC-1221-12-0528-W-1

Response to Agency Brief in Response to Amicus Briefs Regarding Retroactivity of the WPEA of 2012 

dated 2/5/2013

Online Interview

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See attached pleading text document

2. Does your pleading assert facts that you know from your personal knowledge?

No

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UNITED STATES MERIT SYSTEMS PROTECTION BOARD

OFFICE OF REGIONAL OPERATIONS

____________________________________

)

Thomas F. Day, )

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

Appellant, )

)

v. )

)

Janet Napolitano, )

Secretary, )

Department of Homeland Security )

) March 22, 2013

Agency. )

____________________________________)

AGENCY BRIEF IN RESPONSE TO 

AMICUS BRIEFS REGARDING RETROACTIVITY OF 

THE WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 2012

Comes now, the U.S. Department of Homeland Security, United States Coast 

Guard, and files a response to the amicus briefs filed in the instant appeal.

ISSUE

Whether the provisions of the Whistleblower Protection Enhancement Act 

(hereinafter “WPEA”) of 2012, 112 Public Law 199, may be applied retroactively to 

pending cases involving conduct occurring before its effective date. The specific 

question in Day is related to the retroactive effect of Section 101(b)(2)(B) of the WPEA, 

which acted to overturn federal appeals court precedent dating back to 1995. The relevant

alleged disclosure in Day occurred in July of 2010, more than two years before the 

WPEA took effect.

SUMMARY OF THE ARGUMENT

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

Judge’s December 14, 2012, Order and Certification for Interlocutory Appeal, which 

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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, as the Office of Special Counsel (“OSC”) and other Amici argue. 

Rather section 101 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 

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. 

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Finally, OSC’s suggestion that the Board is not authorized to apply the 

presumption against retroactivity and that the governing case law distinguishes between 

public and private parties when applying the presumption is incorrect. 

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 101(b)(2)(B) and the circumstances of the 

instant appeal.

BACKGROUND

Appellant is a GS-13 Contract Price Analyst with the United States Coast Guard. 

Appellant filed an individual right of action appeal (hereinafter “IRA”) claiming that on 

July 1, 2010, he communicated to his third-line supervisor, Scott Palmer, (and to other 

superiors whom Appellant does not identify) that the Agency had suborned unallowable 

costs in regard to a proposal for one of its projects, Maritime Patrol Aircraft, thus 

rendering the proposal unfair and unreasonable. (See Appellant’s Reply to the Board’s 

Order on Jurisdiction and Proof Requirements, at 3-4.) Appellant claimed that after his 

July 1, 2010 communication to Mr. Palmer, the Agency took several retaliatory actions 

against him to include removing him from an assigned task, failing to upgrade his 

position to GS-14, and detailing him to a different position. Id. at 4-5.

Appellant filed the instant appeal on May 14, 2012. On December 14, 2012, 

Administrative Judge Ronald J. Weiss certified for interlocutory appeal a finding that the 

appeal should be governed by the Whistleblower Protection Act (“WPA”) and the U.S. 

Court of Appeals for the Federal Circuit’s decision in Huffman v. Office of Personnel 

Management, 263 F.3d 1341 (Fed. Cir. 2001), rather than the new WPEA standard. On 

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February 8, 2013, the Board invited any interested individuals or organizations to submit, 

no later than March 1, 2013, amicus briefs or other comments on the question presented. 

By Order dated February 5, 2013, the Board gave the parties until March 22, 2013 to file 

a response to the arguments raised by the amicus.

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)). 

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 Weiss found support for prospective application in the fact 

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

remaining provisions. (Order and Certification for Interlocutory Appeal dated Dec. 14, 

2012 at p.10, n.1). As Administrative Judge Weiss points out, if Congress intended 

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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.) Amicus, OSC, dismisses this argument, claiming the “point. . . trades on fallacy.” 

(OSC brief at 8). OSC claims 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 

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 

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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 argue 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” and by entitling Section 101, the provision at issue in the 

instant appeal, “Clarification of Disclosures Covered.” (See, e.g. Government 

Accountability Project (“GAP”) brief 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 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). 

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Congress used time-neutral language in the WPEA preamble and the title of 

Section 101. Further, while Section 101(b)(2)(B) acts 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. 

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 

 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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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, 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 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 

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). 

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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 

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.

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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 Amici’s arguments 

below. 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” 

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). 

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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 

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.

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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 

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 

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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[.]

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 101 of the WPEA creates new rights and liabilities for the parties

and is a substantive change from previous law.

The changes in Section 101(b)(2)(B), those relevant in the instant appeal,

broaden the definition of protected disclosure and are analogous to those changes in 

the laws addressed in both Hughes and Caddell. Under the WPA and Huffman

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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.

OSC argues that the Administrative Judge improperly relied upon Caddell

when he should have looked to Scott v. Department of Justice, 69 M.S.P.R. 211, 

239 - 40 (1995). (OSC brief at 10-11 and n. 8). Scott involved the interpretation of 

a different provision of the 1994 amendments to the WPA. 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 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 

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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 101(b)(2)(B) of the WPEA do more than impact the 

manner in which the parties will present evidence. Rather 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. 

By changing the definition, Congress has acted to impose new rights. 

Under the pre-WPEA standard, the type of alleged disclosures made by Appellant 

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. 

And now, in Appellant’s case, almost three years after the “disclosure at 

issue,” a significant shift in the law has created an immense burden for his

management officials. Had the management officials known that the employee’s 

act of “disclosing” illegal information in the normal course of his job duties was 

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“protected,” they may have acted in a different manner. Ultimately, the decision 

may have been the same, but the fact of the matter is the changes in Section 101 

have “attached new legal consequences to events completed before its enactment.” 

Landgraf, 511 U.S. at 269-70. 

Further, while the question presented is within the forum of an IRA appeal 

and the provision at issue addresses the definition of protected disclosures, the 

Board cannot view the specific circumstances of the instant appeal or the separate 

provisions in a vacuum, as so suggested by Amici. In support of its argument that 

the WPEA merely clarifies the law, OSC claims that because the instant appeal is 

an IRA where only corrective remedies are available, consideration of fairness to 

individual managers is not a concern. (OSC brief at 19-20). However, this 

argument is too nearsighted because the Board is viewing and answering the broad 

“question of whether the provisions of the WPEA may be applied retroactively to 

pending cases involving conduct occurring prior to its effective date” through the 

lens of the instant appeal. Fed. Reg. Vol. 78, No. 27; FR Doc. 2013-02879 

(February 8, 2013). 

Moreover, OSC contradicts itself by stating later in its brief that while 

“OSC considered whether the Landgraf presumption against retroactivity required 

it to continue closing pending complaints that arose from pre-Act personnel 

decisions...[b]ecause Congress expressed its intent so clearly,” as of the effective 

day of the WPEA, “we have instructed our staff to begin evaluating all pending 

whistleblower retaliation complaints without regard to the overturned decisions.” 

(OSC brief 21-22). In other words, as of December 27, 2012, OSC is accepting 

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cases involving pre-WPEA conduct, to include disclosures which, prior to the 

WPEA, were not protected by law. 

Thus, while OSC may not have authority to seek corrective action against 

those management officials involved in the instant 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. What’s more, as 

discussed in more detail below in Section II.B, not only will retroactive application 

of Section 101(b)(2)(B) create new liabilities with respect to potential discipline for 

agency officials, under Section 106 of the WPEA, such agency officials may be 

subject to a broader scope of available disciplinary actions that can be imposed on 

agency officials who have been found to have violated the Act.

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 brief,

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. 

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(See VA Brief 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 

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

In addition to the impact on management officials who may have 

approached an otherwise legitimate personnel decision in a different manner or 

who may be subject to discipline for pre-Act conduct, the changes in Section 

101(b)(2)(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 May of 2012, the 

alleged disclosures occurred in 2010, and the alleged personnel actions in 2010 and 

2011. Under the pre-WPEA standard, Appellant will not likely establish a nonfrivolous allegation of protected disclosures sufficient to confer Board jurisdiction 

and trigger any entitlement to a hearing. In many pre-WPEA whistleblower cases 

when the Appellant fails to establish a non-frivolous allegation of protected 

disclosures, discovery is stayed pending a determination as to the Board’s 

jurisdiction. 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, pre-WPEA standard, Appellant is not likely to get a hearing, thus to the 

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agency, there is less risk presented in the litigation. Moreover, when considering 

these changes in Section 101(b)(2)(B), one must necessarily consider that the 

changes set forth in Section 107 of the WPEA, discussed in more detail below, will 

significantly increase liability for agencies given the expansion of the damages 

provision to include uncapped compensatory damages, which are “quintessentially 

backward looking” and affect the liabilities of the parties. Id. at 282. 

It is clear that the changes to Section 101(b)(2)(B) wholly change the 

playing field for the litigants in a manner that, if applied retroactively, is 

inconsistent with notions of “fair notice, reasonable reliance, and settled 

expectations.” Landgraf, 511 U.S. at 270. 

Amici argue that the provision at issue in the instant appeal merely clarifies the 

definition of protected disclosure. In support of this argument, The National 

Employment Lawyers Association (“NELA”) and OSC argue 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 at 10, OSC brief at 10 – 11). This argument is circular 

and confuses the Landgraf standard. As argued above in Section I, the mere act of 

entitling a provision in a time-neutral 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 NELA and OSC also argue that the WPEA provisions are clarifying in 

nature because Congress simply intended to correct erroneous decisions by the Board and 

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the Federal Circuit. (NELA brief at 10 – 12, OSC brief 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 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 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.

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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.

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, the agency addresses them to the extent that Amici have made arguments 

regarding retroactive application of specific provisions of the WPEA in its entirety. The 

WPEA, as discussed below, increases a party’s liability for past conduct and imposes 

new duties with respect to transactions already completed.

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.”).

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 

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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”). 

Section 107 of the WPEA clearly increases a party’s liability for past conduct as it 

creates an obligation on the part of the employing agency to pay attorney’s fees in 

circumstances when OSC seeks disciplinary action against a subject official who prevails 

at the Board whereas under prior Board precedent, it was OSC that may have been 

obligated to pay. More importantly, Section 107 further 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. 

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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 Amici who argued 

otherwise. 

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. 

Amici’s argument that Congress’s intent that the WPEA should apply 

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

Senate committee report. (See OSC brief at 5, GAP brief at 15, NELA brief at 7.) Such 

legislative history is far too slender a reed to rebut the presumption against retroactivity. 

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 

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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, 

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 

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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 

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.

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

A. The Board must apply the Landgraf doctrine.

OSC seeks to limit the Board’s authority in the instant matter by attempting to 

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

12-14). The authority upon which OSC relies 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 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 As further support that OSC’s position is incorrect, the Board recently invited interested organizations to 

file amicus briefs in a separate appeal, King v. Air Force, MSPB Docket No. DA-0752-09-0604-P-1, to 

address the issue of retroactive application of Section 107 related to compensatory damages. Fed. Reg. 

Vol. 78, No. 54, FR Doc. 2013-06349 (March 20, 2013). 

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B. The presumption against retroactivity is applicable to public sector 

employers.

The OSC amicus brief suggests 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 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, OSC cites 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 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.

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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 on this point is therefore inconsistent with existing 

precedent.

CONCLUSION

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

affirming Administrative Judge Weiss’ decision finding that Section 101(b)(2)(B) and the 

remaining provisions of the WPEA are to be prospectively implemented. 

Respectfully Submitted,

Office of the Judge Advocate and Chief Counsel

United States Coast Guard

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CERTIFICATE OF SERVICE

I certify that the foregoing document has been sent as designated below this 22nd day of 

March, 2013 to each of the following individuals:

William D. Spencer

Clerk of the Board

Via Email: Mspb@mspb.gov

Thomas Day

Via MSPB e-Appeal

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Certificate Of Service

e-Appeal has handled service of the assembled pleading to MSPB and all of the Parties. 

Following is the list of the Parties in the case: 

Name & Address Documents Method of Service

MSPB: Office of the Clerk of the 

Board 

Response to Agency Brief 

in Response to Amicus 

Briefs Regarding 

Retroactivity of the WPEA 

of 2012 dated 2/5/2013 

e-Appeal / e-Mail 

Thomas F. Day

Appellant 

Response to Agency Brief 

in Response to Amicus

Briefs Regarding 

Retroactivity of the WPEA 

of 2012 dated 2/5/2013 

e-Appeal / e-Mail 

Lorna J. Jerome

Agency Representative 

Response to Agency Brief 

in Response to Amicus 

Briefs Regarding 

Retroactivity of the WPEA 

of 2012 dated 2/5/2013 

e-Appeal / e-Mail 

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