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Developments at the MSPB: MSPB vs. DOJ on Whistleblower Protections

Developments at the MSPB:  Recently, the Merit Systems Protection Board (MSPB) and the Department of Justice (DOJ) have squared off in the U.S. Court of Appeals for the 9th Circuit on the scope of reprisal protections for federal whistleblowers.  At issue is the extent to which the Whistleblower Protection Enhancement Act of 2012 (WPEA) applies retroactively, a topic previously discussed in this blog and in Passman & Kaplan's Federal Legal Corner.

On June 27, 2013, alleged whistleblower Leslie Kerr notified the 9th Circuit of the MSPB's recent decision in Day v. Dept. of Homeland Security, 2013 MSPB 49 (2013), which Ms. Kerr believed was pertinent to her pending 9th Circuit appeal in the matter of Kerr v. Salazar.  In response, DOJ (representing Interior Secretary Salazar in the Kerr case) filed a responsive notice on July 3, 2013.  DOJ challenged the MSPB's decision in Day (which found that Section 101 of the WPEA applied retroactively to pending claims predating the date the WPEA was enacted) as erroneous and "severely flawed." 

On July 17, 2013, in response to DOJ's filing, the MSPB took the extremely rare step of requesting to file its own amicus curiae brief in the Kerr case.  In that motion, MSPB struck back at DOJ, stating that DOJ's "letter appears to represent the first time that the Department of Justice has indicated that it will not defend the Board's decision in Day [and that] The Department of Justice did not inform the Board that it would be taking this position."  While the 9th Circuit ultimately denied the MSPB's request to file an amicus brief as untimely filed, the briefs bring into the public eye DOJ's opposition to the MSPB's Day decision. 

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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