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Developments at the MSPB: Amicus Opportunity in Whistleblower Case

Developments at the MSPB:  On February 8, 2013, the Merit Systems Protection Board (MSPB) published a notice announcing an opportunity for interested parties to file amicus briefs in  Day v. Department of Homeland Security.  In Day, the MSPB will decide whether the Whistleblower Protection Enhancement Act of 2012 (WPEA) applies 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, reversing prior decisions by the MSPB and the Court of Appeals for the Federal Circuit limiting whistleblower protections.  One of the WPEA amendments extended whistleblower reprisal protection to persons making disclosures within ordinary channels who are required to make such disclosures as a part of their normal duties.  Mr. Day made his disclosure in July 2010.  Mr. Day's disclosure was allegedly made through ordinary workplace reporting channels and was within the scope of Mr. Day's normal duties.  Mr. Day currently has an appeal on allegations of whistleblower reprisal pending before the MSPB, raising the issue of whether the WPEA's expanded definition of protected whistleblowing applies to Mr. Day's case, given that Mr. Day's disclosures were made prior to the WPEA's enactment, or if instead the pre-WPEA definition should apply. 

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 Mr. Day's case (as 'amicus curiae', or 'friends of the court').  On January 10, 2013, the U.S. Office of Special Counsel filed a notice indicating its intent to file an amicus brief in the Day case.  Interested parties who wish to submit an amicus brief must file them with the Clerk of the Board by March 1, 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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