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UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

 OFFICE OF THE CLERK OF THE BOARD 

BARBARA R. KING, DOCKET NUMBER 

Appellant, DA-0752-09-0604-P-1 

v. 

DEPARTMENT OF THE AIR FORCE, 

Agency. 

AMICUS BRIEF SUBMITTED BY THOMAS F. DAY 

Thomas F. Day is the Appellant in the matters before the Board in Thomas F. Day v. Department 

of Homeland Security docket number DC-1221-12-0528-W-1. Because the Board’s decision in 

the King case has a potential impact on my ability to be awarded compensatory damages I have a 

keen interest in the outcome of this matter. Of specific concern for the items that may be addressed in the Board’s decisions are: 1) whether or not the Board views the Whistleblower Protection Enhancement Act of 2012 (WPEA) as a clarifying statute in its entirety with ordinary 

provisions that are excluded from retroactive application, or whether the Board views the WPEA 

as an ordinary statute with clarifying provisions; 2) whether the Board views a matter that has 

continued beyond the initial decision by the Administrative Judge (AJ) as a “pending case” in 

compliance with the intent of the WPEA, and 3) whether the Board will view the matter of compensatory damages as a clarification of Congressional intent based on the changing definitions of 

damages by the Courts and the Board. 

The Appellant reminds the Board that he is not an attorney and has no formal educational training other than basic business law courses taken prior to 1971. Furthermore, I have no direct access to legal resources other than the Internet and as a result, I have liberally cut and pasted case 
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and other references from the various briefs and other documents associated with this case into 

this document. Therefore, references to “amicus” in this document refers to the submittals by 

various submitters in Day. 

WHETHER THE WPEA IS A CLARIFYING 

Let me introduce my comments with those presented by amicus National Employment Lawyers 

Association (NELA); 

To make it clear that it intended to make a statute, or provision thereof, retroactive, Congress must assure the reviewing court that it has already “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 

272-73.4 Congress has clearly done this. 

[Emphasis added, NELA at 7] 

I submit that Congress has complied by clearly and unambiguously identifying the purpose of the 

Act; 

An ACT 

To amend chapter 23 of title 5, United States Code, to clarify the disclosures of 

information protected from prohibited personnel practices, require a statement in 

non-disclosure policies, forms, and agreements that such policies, forms, and 

agreements conform with certain disclosure protections, provide certain authority 

for the Special Counsel, and for other purposes. 

[Emphasis Added] 

As represented in my comments previously submitted to the Board, I believe there is sufficient 

information before the Board to conclude that the WPEA is a clarifying stature with those provisions that were not intended to be retroactively applied, such as the TSA provisions, so identified 

in the statute. I also submit that the clarifications to extend the time for reporting infractions regardless of the amount of time which has passed since the occurrence of the events described in the disclosure and the provision to make a disclosure protected even if it had been 

previously disclosed are additional indications that Congress has considered the costs and benefits of whistleblowing inclusive of all of the provisions of the WPEA. The changes incorporated 
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into the WPEA have been driven by the improperly narrowed decisions by previous Boards and 

Courts that necessitated a clarification by Congress of what it has intended for decades. Therefore, I once again submit that the WPEA is retroactively enforceable in all parts other than the 

TSA provisions. 

WHAT CONSITUTES A PROCEEDING 

The AJ in King has answered this question: 

“SUMMARY OF STATUS CONFERENCE 

On February 6, 2013, I held a telephonic conference with the appellant, her representative, and the agency’s representative. During the conference, the following 

matters were discussed. 

PENDING MATTERS – I identified the two proceedings before the Board:(1) a 

motion for consequential damages, MSPB Docket No. DA-0752- 0604-P-1; and 

(2) a motion for attorney fees, MSPB Docket No. DA-0752-0604- A-1.1” 

[Emphasis added, WhistleWatch, Exhibit D, at 1] 

The process of appeals has been well established in the courts and in the history of the Board. 

The number of MSPB decisions where the Board has reversed a decision by an AJ sufficiently 

indicated that a matter is not concluded merely by the issuance of an initial decision. Therefore, 

the matters in King are appropriately before the Board as a pending case within the Congressional intent of the WPEA. 

COMPENSATORY DAMAGES AS A CLARIFYICATION NECESSITATED BY 

CHANGING DEFINITIONS IMPOSED BY THE BOARD AND THE COURT 

I became aware of the issues of consequential damages and compensatory damages because of 

the brief submitted by amicus WhistleWatch. I realized that the issue could have a direct impact 

on any relief that might be granted if I prevail in my case. With this awareness, I began to look 

more carefully at the issues raised by amicus WhistleWatch. As I checked one cite and then another and viewed them on a timeline, I realized that there were different descriptions of what was 
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being awarded or not awarded and it flip-flopped back and forth. I then compared the timeline of 

for the inclusion of damages in any of the whistleblower protection legislation and discovered 

the history of damages dating back to the Civil Service Reform Act (CSRA). This is when it 

dawned on me that the inclusion of “compensatory” damages is not something new, but is required as a clarification of what was intended by Congress years ago. There was no reference to 

“consequential” anything in the CSRA. It was not until the adoption of PL 103-424 on October 

29, 1994, that a provision for “consequential” damages was added to the WPA: 

“(a) IN GENERAL.--Section 1214 of title 5, United States Code, is amended by adding 

at the end thereof the following new subsection: 

"(g) If the Board orders corrective action under this section, such corrective action may 

include-- 

"(1) that the individual be placed, as nearly as possible, in the position the individual 

would have been in had the prohibited personnel practice not occurred; and 

"(2) reimbursement for attorney's fees, back pay and related benefits, medical costs incurred, travel expenses, and any other reasonable and foreseeable consequential damages.". 

[Emphasis added, PL 103-424]

From the time that I became an unwitting whistleblower in 1989 through my involvement with 

the efforts to enact the 1994 amendments to the WPA, there was a genuine excitement that retaliation was going to be a distant memory. The statute speaks for itself attesting that there were no 

other foreseeable damages that needed to be identified because it was expected that MSPB and 

OSC were sufficiently empowered to provide the protections needed to encourage whistleblowers to step forward. However, the Courts were already in the process of defining and/or redefining the definitions of “consequential” and “compensatory” damages. Two days after the enactment of PL 103-424, the Courts identified consequential damages as: 
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“... consequential damages arising from a shipowner's failure to provide maintenance 

and cure, including lost wages and pain and suffering, are generally recoverable. 54 

F.3d at 1082-84.” 

[Deisler v. McCormack Aggregates Co 1994] 

In 2001, MSPB and the Federal Circuit continued to define/redefine the application of consequential damages as addressed by amicus WhistleWatch; 

“Instead of the common meaning of consequential damages, which includes pain and suffering and emotional distress, the court’s applying the WPA referred to these damages as 

“compensatory damages” even though they are a consequence of the prohibited action. 

Bohac v Department of Agriculture, 239 F. 3d 1334 (Federal Circuit 2001), where the 

court strained to find a way to exclude emotional pain and suffering from the list of damages that were a consequence of the wrongful conduct.” 

[WhistleWatch at 18] 

Still, in 2009, the Courts were inconsistent with what constituted either consequential damages 

or compensatory damages; 

“In almost all other jurisdictions, pain and suffering damages are included within the 

general category and scope of “consequential” damages when they result from wrongful 

conduct. Delaware River & Bay Authority v Kopacz, 584 F 3d 622 (3rd Cir 2009).” 

[WhistleWatch at 18-19] 

Quoting from Delaware River & Bay Authority v Kopacz, 584 F 3d 622 (3rd Cir 2009), 

 “... citing our statement in Deisler v. McCormack Aggregates Co., that such relief is 

"merely an element of a plaintiff's complete compensation." 54 F.3d 1074, 1087 (3d 

Cir.1995) 

In Deisler, we held that consequential damages arising from a shipowner's failure to provide maintenance and cure, including lost wages and pain and suffering, are generally 

recoverable. 54 F.3d at 1082-84.” 

Therefore, based on the information available to me, there is adequate case references to document that the Courts were inconsistent in their definitions and applications of damages such that 

Congress was obliged to clarify its intent with regard to what could be awarded as damages to a 

whistleblower. Furthermore, by the inclusion of compensatory damages in the WPEA, Congress 
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has clearly given consideration to the cost of making such awards. This analysis and the arguments in the amicus briefs submitted in Day is more than adequate for the Board to determine 

that the matter of compensatory damages is a clarifying provision of the WPEA and is not a 

“new” benefit of damages to be awarded. This language was provided by amicus Office of Special Counsel (OSC): 

“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. Id. 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. Id. 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. Id. 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. Id. 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. Id.” 

[Emphasis added, OSC at footnote on 18] 

Simply put, the Courts have acknowledged a difference between the application of damages upon the government and on an individual. Continuing with remarks made by amicus OSC; 

“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 employees 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.” [Emphasis added, OSC at 18] 
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Another quote from amicus OSC; 

“Thus, the issue of retroactivity cannot he 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.” 

[Emphasis added, OSC at 13] 

If the Board had focused its actions on protecting whistleblowers through a policy of zero tolerance for acts of retaliation and the immediate termination from federal service for those wrongdoers, it would be reasonable to conclude that any damages, under any category, would be minimal due to the fact that cases of retaliation would be minimized. However, through decisions that 

demonstrated a clear lack of understanding of its Congressionally mandated mission or what 

constitutes an act of whistleblowing, MSPB opened the door to managers at all levels of government to sneer at any rule, regulation, or law and to impose unbridled acts of retaliation of persons who simple did was called for them to do to report allegations of infractions. When MSPB 

decides to implement a zero tolerance policy for acts of retaliation, then management at all levels 

will place a higher level of scrutiny on any claim of retaliation and will act with due haste to end, 

and correct, any act of retaliation long before it might have come to the attention of OSC or the 

Board. When senior management comes to appreciate that their career could be ended because of 

their failure to take preventive and/or corrective action acts of retaliation will evaporate or those 

who venture to hold themselves above the law will find themselves looking for a new career. The 

benefits of such a policy go far beyond the efficient expenditure of funds and will encourage a 
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quality of management in the federal government that will be envied instead of one which is repudiated in every election. 

While these words characterize my opinion, I assert that this was the view of those in Congress 

who passed the Whistleblower Protection Act of 1989 (WPA) and they did not feel compelled to 

spell out damages that they did not believe would be forthcoming. When the Board and the 

Courts rendered erroneous decision after erroneous decision creating the opportunity for flagrant 

acts retaliation and the incurred damages, they created the need for Congress to reassert its intention through a clarifying statute that whistleblowers were to be protected and that they should be 

made whole. 

I have not seen anything in the record to indicate that Congress had any intention to permit any 

harm to come to persons who disclosed infractions. It is only due to the failures of the Board and 

the Courts to implement the intended protections that whistleblowers have sustained damages. 

Therefore, and as explained by amicus Government Accountability Project (GAP) et al, the 

inclusion of compensatory damages is not something “new”, it simply addresses what 

has been intended that whistleblowers shall not be damaged for stepping forward with 

their allegations: 

Applying a clarifying statute to pending cases is not retroactive application of the 

law. As the D.C. Circuit explained in Baptist Memorial-Golden Triangle v. Sebelius 566 F.3d 226, 229 (D.C. Cir. 2009), 

A change in statutory language need not ipso facto constitute a change in meaning or effect. Statutes may be passed purely to make what was intended all along 

even more unmistakably clear....An amendment containing new language may be 

intended to clarify existing law, to correct a misinterpretation, or to overrule 

wrongly decided cases. (internal quotation marks and citations omitted) 
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See also Brown v. Thompson, 374 F.3d 253, 259 (4th Cir. Va. 2004); Cortes v. 

American Airlines, Inc., 177 F.3d 1272, 1283 (11th Cir. Fla. 1999); Liquilux Gas 

Corp. v. Martin Gas Sales, 979 F.2d 887, 890 (1st Cir.1992); Boddie v. American 

Broadcasting Cos., 881 F.2d 267, 269 (6th Cir.1989). 

[GAP at 6] 

There is another aspect of the King case that bears consideration in a Board decision. Based on 

the information provided, it appears that the case is still pending in various aspects and that the 

Agency in this particular case has not fully complied with the decision of the AJ. All compensatory damages which may have been awarded at the time of the AJ’s decision must be viewed as 

continuing, compounding, and cumulative as the result of actions and/or inactions of the Department of the Air Force. After years of retaliatory practices as confirmed in the AJ decision, a 

person does not become cured of the affects from these retaliatory practices at the moment of an 

AJ’s decision. Even after a victory, waiting for the next shoe to fall to see if the agency will 

comply with a Board Order, is no less damaging then it was the day before the decision. When 

an agency fails to comply with an Order, they have “continued” the issue of compensatory damages, they have “compounded” the compensatory damages with additional penalties that should 

be imposed by the AJ, and the damages incurred are “cumulative” with all damages incurred. 

There have been those occasions where a court has decided to use a particular case to make an 

example of one kind or another. Since there has already been a finding of retaliation in King, I 

see this case as presenting the Board with the remarkable opportunity to make it clear to all 

agency management that MSPB is on a new path and continuing acts of retaliation will be costly. 
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Since the proceedings have continued, the Board has the authority to make a decision affirming 

or denying the request of commensurate damages, and because such a decision will be made after the effective date of the WPEA, the damages are appropriately before the Board. It is understood that the AJ’s decision in King was made prior to the effective date of the WPEA, but the 

key language in this matter is the attention to the “proceedings” as stated in the Senate Report for 

S.743: 

“By contrast, retroactivity is suggested by comments in the Senate’s version, 

which provides in relevant part: 

This section states the Act would take effect 30 days after the date of enactment. 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. 

S. REP. NO. 112-155, at 52 (2012)....” 

[WhistleWatch, Exhibit D, at 5] 

Even amicus OSC has been able to parse the text of the Senate Report based on a plain reading 

of the text: 

“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 Act's 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 ()SC, 

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 
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