Whistleblower Compensation Provision Not Retroactive

Wednesday, August 21, 2013

On August 14, the Merit Systems Protection Board (MSPB) issued its decision in King v. Dept. of the Air Force, 2013 MSPB 62. In dispute was whether the compensatory damages provision of the Whistleblower Protection Enhancement Act of 2012 (WPEA) applies retroactively.

The issue was the WPEA provision expanding the category of damages available to federal employee whistleblowers suffering retaliation, Section 107(b). Prior to the WPEA, victims of whistleblower reprisal could only receive "consequential" damages (a poorly-defined category primarily limited to job-hunting expenses and the like, but not including damages for medical effects, damage to career and reputation and emotional pain and suffering) and back pay as money damages. The WPEA now allows the award of compensatory damages which includes payment of money damages for medical effects, injuries to career and reputation and emotional pain and suffering. King raised the issue of whether the WPEA's expanded damages apply to Ms. King's case, given that King's disclosures were apparently made prior to the WPEA's effective date, or if instead the more limited damages available under the pre-WPEA definition should apply to her case.

On June 26 MSPB had issued its companion decision in Day v. Dept. of Homeland Security, 2013 MSPB 49 (2013), which applied other sections of the WPEA retroactively. While the Board applied the same analytic framework in King, it reached the opposite result, specifically finding that the WPEA's compensatory damages provision did not apply retroactively. The Board distinguished Day, noting that the WPEA compensatory damages provision created a new category of legal remedy for violations rather than merely clarifying prior statutory language. As a result of the Board's decision, money damages that whistleblowers suffered from reprisal predating the WPEA will remain limited to the lesser category of "consequential damages" (in addition to any back pay or reimbursement of attorneys' fees and costs).