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Developments at the MSPB: Second MSPB Amicus Opportunity on WPEA

Developments at the MSPB: On March 20, 2013, the Merit Systems Protection Board (MSPB) published a notice in the Federal Register announcing an opportunity for interested parties to file amicus briefs in King v. Dept. of the Air Force. In King, the MSPB will decide whether the compensatory damages provisions of Whistleblower Protection Enhancement Act of 2012 (WPEA) apply retroactively.

As previously analyzed by Passman & Kaplan in this blog and in the Federal Legal Corner, the WPEA made many revisions to preexisting law protecting federal whistleblowers from retaliation.  As discussed in this blog, the MSPB has accepted amicus briefs on issues concerning the retroactivity of these various WPEA provisions.  At issue in King is the WPEA provision expanding the category of damages available to federal employee whistleblowers suffering retaliation.  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.  Ms. King currently has an appeal on allegations of whistleblower reprisal pending before the MSPB, raising the issue of whether the WPEA's expanded damages apply to her case, given that Ms. 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.

Because of the importance of this retroactivity question, the MSPB is allowing interested persons who are not parties to the Day case to file legal argument on the issue of whether the WPEA applies retroactively to Ms. King's case (as 'amicus curiae', or 'friends of the court'). Interested parties who wish to submit an amicus brief must file them with the Clerk of the Board by April 12, 2013.

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

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