Day v. Dept. of Homeland Security

This case of Day v. Dept. of Homeland Security raised the question whether or not the Whistleblower Protection Enhancement Act (“WPEA”) applied retroactively to whistleblower cases filed before the WPEA was passed.

On November 27, 2012, President Obama officially signed the Whistleblower Protection Enhancement Act into law. The National Whistleblower Center (“NWC”) explains that the bill contains two important advances for whistleblower protection law, including the expanded definition of “protected disclosure” now allows for whistleblowers to collect compensatory damages. Moreover, former NWC Executive Director Stephen M. Kohn and his law partner, David K. Colapinto, worked together for over two years to prevent three separate “poison pill” amendments from entering the bill. These adversary amendments would have allowed the Merit System Protection Board (“MSPB”) to dismiss whistleblower cases without a hearing, as well as allowing the executive branch to fire whistleblowers for filing even minor claims.

The National Whistleblower Center submitted an amicus brief to the Merit Systems Protection Board (“MSPB”) in support of retroactive application of the law. The NWC brief argued that it is a clarifying amendment and therefore must be considered to be applied to pending cases as well as future cases. The brief notes that is well established that when an amendment merely clarifies existing law, rather than affecting a substantive change to the law, retroactivity does not come into play. Second, the NWC noted that Federal Circuit jurisdiction compels granting retroactivity, as it is well-established precedent that Congress has the authority to unambiguously specify the retroactive effect of legislation if it chooses to do so. Finally, the NWC noted that even if the MSPB were to conclude that the WPEA does not have retroactive effective, this congressional amendment should be given substantial weight because it serves to clarify Congress’ intent.

The three Board Members of the MSPB agreed with this argument in their decision. In a victory for the whistleblower, the Board’s opinion, which is binding, agreed that the WPEA does apply to cases that were already pending at the time of the amendment in question.

The success of the WPEA marks the beginning of a long journey for protecting federal employee whistleblowers. Kohn notes,

“The bill contains important reforms, but federal employees still lack most of the basic rights available to whistleblowers in the private sector…. This is a small but meaningful step.” To read more about the NWC’s work protecting federal employee whistleblowers, click here.

The decision of the MSPB in this case highlights the importance of legal avenues for federal employee whistleblowers to turn to in complex cases where the initial administrative judge overseeing the case has a limited understanding of the complexities and effects of their decision. As a result, a well-functioning MSPB whose Board members are supportive of whistleblowers is enormously important. The NWC continues to advocate to ensure that the MSPB has the necessary quorum to hear cases as well as Board members who understand the needs and contributions of federal employee whistleblowers. Click here to learn more about the current work of NWC on this issue.

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