BARBARA R. KING v. DEPARTMENT OF THE AIR FORCE

Docket # DA-0752-09-0604-P-1

Response to Amicus Order dated 3/18/2013

Summary Page 

Case Title : BARBARA R. KING v. DEPARTMENT OF THE AIR FORCE

Docket Number : DA-0752-09-0604-P-1

Pleading Title : Response to Amicus Order dated 3/18/2013

Filer's Name : Lawrence Lynch

Filer's Pleading Role : Agency Representative

Details about the supporting documentation

N/A

Pleading Number : 2013015541 Submission date : 2013-05-03 14:46:47 Confirmation Number: 1659668098 page 1 of 19
 

 

    

  
 

Pleading Number : 2013015541 Submission date : 2013-05-03 14:46:47 Confirmation Number: 1659668098 page 2 of 19

Table of Contents
BARBARA R. KING v. DEPARTMENT OF THE AIR FORCE

Docket # DA-0752-09-0604-P-1

Response to Amicus Order dated 3/18/2013

Online Interview

1. Would you like to enter the text online or upload the file containing the pleading?

See attached pleading text document

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

Yes

3. Do you declare, under penalty of perjury, that the facts stated in this pleading are true and correct?

Yes

Pleading Number : 2013015541 Submission date : 2013-05-03 14:46:47 Confirmation Number: 1659668098 page 3 of 19
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v. 

Department of the Air Force 

Agency. 

) 

) 

) 

) 

) 

) ) 

May 3, 2013 

AGENCY'S RESPONSE TO REQUEST FOR AMICI BRIEFS 

Comes now the Agency, through its under-signed counsel, and respectfully submits 

this response to the Amicus Briefs filed in the above captioned matter. 

ISSUE 

Whether the damages provisions of the WPEA of 2012, 112 Public Law 199, may 

be applied retroactively to cases pending prior to its effective date; specifically, the question 

in King is related to the retroactive effect of Section 107(b) of the WPEA which revised the 

law to include compensatory damages as a potential remedy. Prior to passage of the 

WPEA, individuals were entitled to reasonable and foreseeable consequential damages, but 

not compensatory or non-pecuniary damages. 
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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 states 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. 

Second, if the effective date was unclear, the Board should apply the wellestablished presumption against retroactive construction of new statutes. 

Third, though review of the legislative history of the WPEA is unnecessary, it 

confirms there is no clear congressional intent to depart from the plain language of the 

statute. 

The Board should affirm the decision of the Administrative Judge and rule that 

Section 107 (b) of the WPEA may not be applied retroactively to conduct occurring 

prior to its effective date. 

ARGUMENT 

a. The Plain Language of the Statute is Clear 

In Landgraf v. US] Film Products, et al., the Supreme Court framed the primary 

question 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 

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The WPEA's effective date provision 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 Malouf found support for prospective application in the fact 

that Congress created two separate effective dates. The WPEA expressly provides that its 

provisions take effect 30 days after enactment, except for TSA cases, which are 

governed by the WPEA immediately upon enactment. Judge Malouf noted that if 

Congress intended 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." (Order and Certification of Interlocutory Appeal, DA--0752-09-0604-P-l, at 4) 

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. None of the Amicus Briefs filed in this matter - arguing for 

retroactive application - assert that the plain language of the statute requires it. They 

implicitly concede that the statutory language is clear on its face. 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 527 

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Authority, 572 F.3d 936 (D.C. Cir. 2009), the D.C. Circuit considered whether the 2008 

amendments to the ADA applied retroactively. 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. 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 

statute would apply only from January 1,2009 forward." Lytes,572 F.3d at 940 

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 relevanf 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). 

Congress used time-neutral language in the WPEA preamble. While other 

provisions of the WPEA, specifically Section 101(b)(2)(B), act to effectively overturn 

earlier court decisions, the delayed effective date and absence of clear retroactive 

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Lytes, 572 F.3d at 941. 

As noted in the Amicus brief filed by the Department of Veteran Affairs, when 

Congress intends to create a law with retroactive application, it uses an express statutory 

grant to demonstrate its clear congressional intent. (DVA brief, at 4-5) Specifically, the 

DV A brief cites a V A matter where Congress authorized the Secretary of V A to waive 

payments of premiums for life insurance policies for mentally incompetent persons. In 

doing so it expressly stated the retroactive authority,"[i]n mentally incompetent cases the 

waiver is to be �ade without application and retroactive when necessary." (38 U.S.C 

§ 1960) In authorizing the Secretary of the Treasury to prescribe rules and regulations 

Congress expressly provided, inter alia, that "the Secretary may provide that any 

regulation may take effect or apply retroactively to prevent abuse," and authorized the 

Secretary "to provide that any regulation may apply retroactively to correct a procedural 

defect in the issuance of a prior regulation." (26 U.S.C §7805(b )(3) and (4)) 

As noted in the Amicus brief filed by the Department of Romeland Security, 

where Congress has intended retroactive applicability in other employment statutes, it 

unambiguously specified the retroactive effect of legislation within the body of a statute. 

(DRS brief, at 6-8) DRS points to when Congress amended Title VII in the Equal 

Employment Opportunity Act of 1972, noting 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 

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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. 

By not including similar express and unambiguous language within the statutory 

language of the WPEA the Congress clearly intended prospective application only. The 

1994 WP A amendments were construed by the Federal Circuit as insuf

cient to convey 

express congressional intent to apply WP A 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 D VA brief states, the Board will expose itself to reversal by the Court of 

Appeals if it decides to give retroactive effect to the WPEA without acknowledging and 

finding a basis for distinguishing the Federal Circuit's holdings in Caddell since the 

Caddell decision considered statutory language substantially similar to the WPEA and 

concluded that retroactive enforcement was not supported by law. 

In Caddell, the appellant sought to impose retroactivity on a recently enacted 

whistleblower statute that also expanded the scope of whistle blower disclosures. In that case, 

the Federal Circuit concluded: 

The Act states that "the amendments made by this Act shall be 

effective on and after the date of the enactment of this Act," which 

was October 29, 1994. Pub.L No. 103-424, § 14, 108 Stat. at 4368. 

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66 M.S.P.R. at 354. In Landgraf, the Supreme Court dealt with a 

provision of the Civil Rights Act of 1991, which amended Title VII 

of the Civil Rights Act of 1964, and that, like the amendments here, 

simply specified that the act shall take effect upon enactment, without 

addressing the question of retroactivity. Caddell, 96 F.3d at 1370. 

The Federal Circuit thus concluded that the Board had correctly held that the 

amendment did not apply to cases pending before the Board on the date of enactment. 

At the time the WPEA was passed, Congress was aware of the need to 

"unambiguousl y specify the retroactive effect of [whistleblower] legislation if it decider d] to 

do so." Caddell, 96 F.3d at 137l. Congress did not do so. The language explicitly states 

otherwise: the WPEA "shall take effect 30 days after the enactment of this Act." Pub. L. No. 

112-199 § 202. 

b. There Is a Well-Established Presumption against Retroactive Construction of 

Statutes 

Though the effective date of this statue is clear, even without such a clear 

expression the amendment would be limited to prospective application. The 

Supreme Court set forth the test to be used when deciding whether a statute, that is 

silent with respect to the date of its application, should be given retroactive effect: 

[T]he court mu:;t 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 

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that functionally alters-after-the-fact-the rights, duties, liabilities, and expectations of 

individual parties. 

In Landgraf, the 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 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 27l. 

The Court in Landgraf, examining an amendment to the Civil Rights Act authorizing 

compensatory damages for certain violations of Title VII, explained "[t]he extent of a party's 

liability, in the civil context as well as the criminal, is an important legal consequence." 511 

U.S. at 283-84 (emphasis in original). Thus, even though Title VII, like the WPA, previously 

authorized recovery of back pay, the Court found that the new compensatory damages 

provision did not apply retroactively because, if so applied, the provision would 

"undoubtedly impose on employers found liable a 'new disability' in respect to past events." 

Id at 283. "Even when the conduct in question is morally reprehensible or illegal," the Court 

explained, "a degree of unfairness is inherent whenever the law imposes additional burdens 

based on conduct that occurred in the past." Id at 283, n.35; see also Hughes Aircraft v. 

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damages provision at issue in Landgrafagainst Government because it "would 'increase 

[Treasury's] liability for past conduct'" (alteration in original»; see also Woolfv. Bowles, 57 

F.3d 407, 410 (4th Cir. 1995) (no retroactive application of statutory amendment extending 

to Government requirement to pay interest on Title VII awards because it "would impose an 

important new legal burden on the federal government"); Chenault v. USPS, 37 F.3d 535, 

536 (9th Cir. 1994) (same). 

Contrary to the proposition, that the Board must find retroactivity to give full effect to 

the purpose of the WPEA, the Board has acknowledged that the presumption against 

retroactivity applies even when retroactivity would arguably further the overall policy aims of 

the new law and adopted the Landgraf presumption as an important rule of statutory 

construction with respect to other WPA amendments. (DRS brief, at 11-12) For example, in 

Roman v. Department of the Army, 72 M.S.P.R. 409 (1996), aff'd, 1997 WL 636608 (Fed. 

Cir. 1997), the Board found a WP A 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. 

The changes in Section 107(b), those relevant in the instant appeal, create new rights 

and liabilities for the parties and are a substantive change from previous law. They clearly 

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By adding this additional remedy, Congress has acted to impose new liabilities. 

Under the pre-WPEA standard, the corrective action available to individuals found to have 

been retaliated against for making protected disclosures included reasonable and foreseeable 

consequential damages, not compensatory damages. The Supreme Court has unequivocally 

stated that compensatory damages are "quintessentially backward looking" and affect the 

liabilities of the parties. Landgraf, 511 U.S. at 282. 

The changes in Section 107(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 demotion that was the 

basis for the instant appeal occurred on July 13, 2009, the appeal was filed in July 

2009 and the Administrative Judge issued the initial decision on October 3, 2012, 

which became final on November 7, 2012. The Appellant filed her request for 

compensatory damages on December 17,2012. All these actions occurred prior to 

December 27,2012, the effective date of the WPEA. 

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, the parties completed virtually 

all aspects of the litigation under the WPA standards, which meant that in considering its 

potential liability in the case, the Air Force had absolutely no reason to consider the 

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c. The WPEA's legislative history does not conclusively demonstrate a clear 

Congressional intent for retroactive application. 

Because the statute's plain language is clear, consideration of Congressional intent is 

not necessary. However, because the Amicus Brief filed by the National Whistleblower 

Center & Dr. Ram Chaturvedi argues the legislative history indicates Congressional intent of 

retroactivity, we will address it. 

There is no "clear congressional intent" rebutting the presumption against retroactive 

application of the WPEA's damages provision. As the Administrative Judge correctly noted, 

the "legislative history concerning this issue is inconclusive." Although a Senate Committee 

report stated that it "expect[ed] and intend[ed] that the Act's provisions shall be applied in ... 

proceedings . .. pending on or after [its] effective date," the version of the bill later passed by 

the House of Representatives stated the opposite: "[ r lights in this Act shall govern legal 

actions filed after its effective date." App. 3-4 (quoting H.R. Rep. No. 112-508 at 12 (2012) 

and S. Rep. No. 112-115, at 52 (2012». (Order and Certification ofInterlocutory Appeal, 

DA--0752-09-0604-P-l, at 3-4) 

The version of the bill that became law contains neither of these statements. See 126 

Stat. 1465. This "inconclusive" Congressional intent does not rebut the presumption against 

retroactivity. See Cyr, 533 U.S. at 316 (standard for finding unambiguous Congressional 

intent to apply a statute retroactively "is a demanding one" and involves statutory language 

"so clear that it could sustain only one interpretation"). 

That Congressional intent is not sufficiently "clear" to require retroactive application 

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0604-P-l, at 3-4) see also Brown v. Sec y o/the Army, 78 F.3d 645,654 (D.C. Cir. 1996) 

(refusing to apply new law awarding interest on attorney's fees retroactively because to do so 

"would be to impose upon the United States a liability to which it has not explicitly 

consented");Nichols v. Pierce, 740 F.2d 1249, 1255-56 (D.C. Cir. 1984) (same). 

The only piece of significant legislative history contemplating retroactivity is a single 

sentence in a 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). The language in the legislation's parallel House committee report does not 

contain similar expectations. H.R. Rep. No. 112-508, at 12 (2012). 

The Senate committee's expectations and intentions were not voted on by the full 

Senate or the House of Representatives, not made part of the statute, and never signed into 

law. The reference to retroactivity in the Senate report merely expresses the desire of a 

handful of Senators as to what the final legislation would include. Their view did not carry 

the day and never garnered enough support to include the kind of express language in the 

bill itself that would rebut the presumption. Their intent was not the intent of the full 

Congress as indicated by the plain language of the amendment. National Whistleblower 

Center's argument that Congress's intent that the WPEA should apply retroactively rested 

on the single paragraph contained in the Senate committee report. 

As stated in the Amici filed by DHS; Legislative history may not be employed to 

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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). 

The Amicus brief filed by Government Accountability Project and Whistlewatch.Org 

is also errant in claiming that a single sentence in the preamble to the WPEA stating, "the WPEA is an amendment to and a clarification of the WP A," was a clear expression of desired 

retroactive application. 

Similarly, the contention that the WPEA was meant to "clarify" Congress's original 

intent does not meet the demanding standard necessary to overcome the presumption against 

retroactivity and, in any event, is incorrect. The preamble to the WPEA does not state that 

the entire Act is clarifying. Rather, it speaks only in terms of "clarifying" the narrow issue of 

which disclosures will be protected. 126 Stat. 1465 (''to clarify the disclosures of 

information protected from prohibited personnel practices .... "). Otherwise, the preamble 

states that the Act is intended to "require" certain statements in non-disclosure policies, 

"provide" the Special Counsel with certain authorities, "and for other purposes." ld. 

Moreover, the preamble to a statute is not part of the statutory text, and should be 

used only to clarify an ambiguity in an express statutory provision. See, e.g., Ass 'n of Am. 

Railroads v. Surface Transp. Bd., 237 F.3d 676, 680 (D.C. Cir. 2001). As demonstrated 

above, the plain language of the WPEA's effective date provision makes the statute 

applicable only prospectively. Even if it is viewed as ambiguous, however, the preamble 

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The WPEA is clear on its face that its provisions were to be applied 

prospectively. Accordingly, the Agency respectfully requests that the Board issue a 

decision af

rming Administrative Judge Maloufs decision finding that Section I07(b) 

and the remaining provisions of the WPEA are to be prospectively implemented. 

Respectfully Submitted, 

Lawrence E. ch, Major, USAF 

Agency Representative 

14 
Pleading Number : 2013015541 Submission date : 2013-05-03 14:46:47 Confirmation Number: 1659668098 page 18 of 19

Method 

E-File 

E-File 

E-File 

U.S. MERIT SYSTEMS PROTECTION BOARD 

1615 M Street, NW 

5th Floor 

Washington, DC 2041 

Ap

llant 

Barbara R. King 

Ap

llant Representative 

Joseph Bird, Esq 

136 South Pontiac Trail Suite 2 

Walled Lake, MI 48390 

�USAF. 

15 
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 Amicus Order 

dated 3/18/2013 

e-Appeal / e-Mail 

Barbara R. King

Appellant 

Response to Amicus Order 

dated 3/18/2013 

e-Appeal / e-Mail 

Joseph Bird, Esq.

Appellant Representative 

Response to Amicus Order 

dated 3/18/2013 

e-Appeal / e-Mail 

Pleading Number : 2013015541 Submission date : 2013-05-03 14:46:47 Confirmation Number: 1659668098 page 19 of 19