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Developments at the MSPB: NELA Amicus Brief in Whistleblower Case

Developments at the MSPB:  On February 28, 2013, the National Employment Lawyers Association (NELA) filed an amicus brief urging the Merit Systems Protection Board (MSPB) to give retroactive effect to provisions of the Whistleblower Protection Enhancement Act (WPEA) in Day v. Dept. of Homeland Security, MSPB Docket No. DC-1221-12-0528-W-1.  The Day case was previously discussed in this blog here.

Mr. Day, a Coast Guard civilian employee, allegedly suffered retaliation after blowing the whistle in July 2010 on impropriety in an aircraft procurement contract. Mr. Day reported his concerns to his supervisor, and was acting within the scope of his normal duties.  At issue in Day is whether or not provisions of the 2012 WPEA clarfying the definition of protected whistleblowing applied to Mr. Day's 2010 disclosures. Section 101 of the WPEA reversed prior decisions by the MSPB and the U.S. Court of Appeals for the Federal Circuit (in particular, Huffman v. OPM, 263 F.3d 1341 (Fed.Cir. 2001)) denying whistleblower reprisal protections to disclosures made to an employee's supervisor or within the scope of normal duties. If the pre-WPEA Huffman standard applies, Mr. Day's whistleblower reprisal claim could likely be dismissed; if Section 101 of the WPEA applies, Mr. Day's claim could then proceed to hearing. An MSPB Administrative Judge applied the Huffman standard, but referred the case to the MSPB for a higher-level decision on whether the WPEA's provisions should apply retroactively.

NELA's amicus brief argues that Section 101 of the WPEA should apply retroactively, as the WPEA merely clarifies the original statutory definition of protected whistleblowing which had been artificially narrowed by the MSPB and the Federal Circuit under Hoffman and related cases. NELA argues that the MSPB has historically given retroactive effect to provisions like Section 101 of the WPEA which only clarify Congress' intent in how the preexisting statutory definition of protected whistleblowing is to be applied and construed. NELA also notes that giving retroactive effect to Section 101 furthers the remedial purpose of federal whistleblower protection statues.

NELA's amicus brief was drafted by Passman & Kaplan Founding Principal Joseph V. Kaplan, Passman & Kaplan Founding Principal Edward H. Passman, Passman & Kaplan Senior Associate Andrew J. Perlmutter, Erik D. Snyder and Richard Renner from Tate & Renner, and NELA Program Director Rebecca Hamburg Cappy.  Also assisting on the brief were George Chuzi and Elaine Fitch from Kalijarvi, Chuzi, Newman & Fitch. To read NELA's brief, click here.

If you believe that you are being retaliated against because of protected whistleblowing, please feel free to contact Passman & Kaplan for an initial consultation.

Note: an alternate version of this article also appeared in @NELA: News For NELA Members. 

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