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Will Congress Step Up With an Amicus at MSPB or Federal Circuit to Ensure Bush/Obama Era Whistleblowers Get Justice?

11:15 pm in Uncategorized by MSPB Watch

In early June, Congress, as channeled by lobbyist Tom Devine of the Government Accountability Project, was keen on making sure the Whistleblower Protection Enhancement Act would get a “clean” savings provision that applied it retroactively, to whistleblowers who were victimized during the last few years.

By the end of August, Devine seemed to be avoiding the issue. After Labor Day, all bets were off in Congress because of “general nervousness,” even though there was “no real opposition” to retroactivity.

The end product didn’t contain the clean savings provision whistleblowers wanted, and now it’s an issue for the courts to resolve. The legal landscape isn’t promising, though presumably the Office of Special Counsel will give it its best shot.

One thing that Congress could do to get past its nervousness this time is understand that real people’s lives are affected. Here’s a running list. Congress should submit an amicus expressing unanimous approval of its newly-minted law applying retroactively. And GAP should organize it.

GAP Reaches Out to Whistleblower Community to Protect Rights, Six Months Too Late

12:08 pm in Uncategorized by MSPB Watch

The Government Accountability Project issued a call today for whistleblowers to submit friend-of-the-court briefs to the Merit Systems Protection Board to support the retroactive application of the Whistleblower Protection Enhancement Act. MSPB is in the process of deciding whether to apply the WPEA retroactively to scores of cases it had to put on hold, given that the new law overturns several harmful precedents. The issue of retroactivity is a legal one, centering on whether Congress spoke clearly in intending that the WPEA apply retroactively. This “clear statement rule” was imposed by a 1994 Supreme Court case, Landgraf v. USI Film Products, Inc., stemming from the principle that “retroactivity is not favored in the law.”

A year ago, when the WPEA was still in committee, this author reached out to the lead lobbyist in charge of the WPEA, Tom Devine of GAP, to alert him to the fact that the WPEA may not apply retroactively. Devine sent a memo to his congressional contacts, and later in the spring the overseeing Senate committee included language in a Senate report favoring retroactivity. This was followed by a floor statement from Rep. Todd Platts (R-PA) in the same vein. There is no explicit retroactivity language in the bill itself, however. Therefore, as noted by GAP’s email today, all of this may not be enough. Depending how the MSPB, the U.S. Court of Appeals for the Federal Circuit, and possibly the Supreme Court rule, there is a strong possibility that one or more of these bodies may decide that only bill language counts. What it will come down to, essentially, is the legal philosophies of individual judges and decision-makers, and how much credence they give to individual floor statements and committee reports versus bills passed by both chambers of Congress and signed by the President.

Now GAP has issued a call for whistleblowers to submit briefs to the MSPB, by February 15, saying that “Enough whistleblowers writing to the Board about your whistleblowing disclosures (and the public stakes), will help to underscore the weight of this decision by the MSPB.” This will be a weighty decision by the Board, no doubt, but public sentiment may not be relevant or sufficient to resolve a legal question.

Unfortunately, such a call for public sentiment would have been critical when the WPEA was debated, when Congress could take into account policy preferences in a way that courts may not. The record is clear that GAP did not conduct a transparent and inclusive approach to lobbying in 2011 and 2012. It’s disheartening therefore, but not surprising, that GAP’s call for help today is a consequence of its secretive and exclusive approach to advocacy.

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GAP Open Call for Whistleblower Amicus Briefs

OSC Notice of Intent to File Amicus Brief – Jan. 10, 2013

MSPB Amicus Order – Jan. 16, 2013

Will the new Whistleblower Protection Enhancement Act apply retroactively?

11:06 am in Uncategorized by MSPB Watch

Not without legislative changes. Right now, the two bills (S. 743 and H.R. 3289) state that the law will take effect 30 days after enactment. But there is nothing about whether it will apply to cases pending at the time of enactment, or conduct that occurred before the bill but where no case has been brought.

In other words, if you’re waiting for the new bill to pass before bringing a complaint for reprisal or other PPP, the new law may not help you.

What would?

A simple legislative fix, such as:

This Act shall control any administrative proceeding pending at the time such provision takes effect.

The background rule is that a Supreme Court case from 1994,  Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), states that the presumption is that new laws will not be retroactive unless Congress rebuts this presumption by clearly intending to apply it retroactively. The proposed legislative language above should pass muster, especially since it was blessed by the Federal Circuit in 1996:

Congress easily could have modified the deleted provision to indicate that “the Act shall control any administrative proceeding pending at the time such provision takes effect.” Congress failed to do that in this case and we will not read this language into the statute.

Some additional background is that the 1989 WPA applied retroactively (as noted by the OSC annual report for 1991, pages 9, 11), but the 1994 reauthorization did not because of Landgraf and because it did not have the right legislative language.

So, if you want WPEA to apply to you, contact your member of Congress and Tom Devine, Legal Director of the Government Accountability Project, who is the lead author of WPEA. He may be reached at 202-457-0034 or tomd@whistleblower.org.