News from the Federal Circuit: On March 22, 2016, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Hicks v. Merit Systems Protection Board, No. 2016-1091. While rejecting Ms. Hicks’ appeal, the Federal Circuit followed the retroactivity analysis used by the Merit Systems Protection Board (MSPB) in its earlier decisions concerning the Whistleblower Protection Enhancement Act (WPEA), leaving the door open to some WPEA provisions retaining retroactive coverage.
The WPEA retroactivity issue has been previously analyzed in this blog. At issue in Ms. Hicks’ case was the retroactivity for the WPEA’s extension Independent Right of Action (IRA) appeal rights from 5 U.S.C. 2302(b)(8) whistleblower reprisal claims to several other categories of claims, including retaliation for prior whistleblowing reprisal complaints (but not other MSPB appeals).
Ms. Hicks was originally removed by the Air Force in 1989; on appeal, a MSPB administrative judge mitigated the penalty to a 60-day suspension. The Air Force removed Ms. Hicks a second time in 1990. Ms. Hicks appealed to the MSPB, but the administrative judge denied her appeal. She then filed a petition for review (PFR) to the full MSPB a year late, which the MSPB denied as untimely.
20 years later, Ms. Hicks filed a new case with the Office of Special Counsel (OSC) regarding her 1990 removal. OSC declined to prosecute, and then Ms. Hicks filed an IRA appeal with the MSPB. The MSPB administrative judge dismissed Ms. Hicks’ appeal. Ms. Hicks then filed a PFR, and the MSPB affirmed in a nonprecedential decision. The MSPB found that Ms. Hicks claim that the Air Force retaliated against her for her 1990 MSPB appeal of her first removal was not a whistleblower reprisal claim under 5 U.S.C. 2302(b)(8), but instead retaliation for her prior MSPB appeal under 5 U.S.C. 2302(b)(9). The MSPB noted that pre-WPEA, no IRA appeals were available under 5 U.S.C. 2302(b)(9), and that the MSPB had held that the WPEA was not retroactive for 5 U.S.C. 2302(b)(9) claims.
On appeal, the Federal Circuit affirmed. The Federal Circuit broadly employed the MSPB’s reasoning used in deciding whether or not given provisions of the WPEA had retroactive coverage. Importantly, the Federal Circuit issued a narrow decision limited to the facts of Ms. Hicks’ case, and took no position on whether or not the rest of the provisions of the WPEA were retroactive (specifically citing the MSPB’s finding of retroactive coverage in Day as unaffected by Hicks).