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Today the National Whistleblower Center filed an Amicus Curiae brief with the Merit Systems Protection Board (MSPB), in the case of Day v. Department of Homeland Security. At issue is whether the new definition of a protected disclosure set forth in the Whistleblower Protection Enhancement Act will apply to cases pending and/or which arose before that law was passed. The MSPB requested stakeholders to file briefs on the issue.

In its brief, the NWC strongly urged the MSPB to retroactively apply the WPEA’s definition of protected disclosure to all pending cases. The MSPB’s decision will impact the fate of federal employees and whistleblowers that filed claims or suffered retaliation before the WEPA was signed into law on November 27, 2012.

Stephen M. Kohn, Executive Director of the NWC, said “It would be tragic if the reforms the whistleblower community fought for were denied to the very people for whom the law was designed to protect. If the Board decides not to retroactively apply the WEPA, whistleblowers will once again get the short end of the stick. The Board will also send a strong message that its hostility toward whistleblowing is unending. We hope Congress’s action in unanimously passing the WEPA will result in real change.”

The NWC’s brief can be viewed here.

The Office of Special Counsel, which strongly supports retroactively applying the new definition of a protected disclosure, previously filed a brief in this case. OSC's brief can be viewed here.  

 

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Today, the National Whistleblowers Center and the No FEAR Coalition announced their support for the immediate passage of the Whistleblower Protection Enhancement Act (WPEA) for federal employee whistleblowers.  The decision to support the Senate version (S. 743) of the WPEA came after the Senate removed a final poison pill from the bill. 

Last week, the Senate removed the controversial summary judgment provision from the WPEA. The provision would have given the Administrative Judges of the Merit Systems Protection Board (MSPB) the power to summarily dismiss whistleblower cases without a hearing. The NWC, No FEAR Coalition and other whistleblower groups argued that the summary judgment provision would be harmful to federal employees by radically increasing costs for whistleblowers, undermining their ability to reach settlements, and delaying final decisions. A prior blog posting provides a more thorough analysis of the dangers of the summary judgment provision.

Stephen M. Kohn, Executive Director of the National Whistleblowers Center, acknowledged that "the revised Senate bill (S. 743) is far from what federal employees were promised, but it is finally a step forward." He encouraged Congress to immediately pass the WPEA and promised that the NWC would continue working to improve protections for all federal employee whistleblowers. 

Dr. Marsha Coleman-Adebayo, President of the No FEAR Coalition and member of the NWC Board of Directors, stated that the "summary judgment provisions of Senate bill (S.743) would have seriously undermined the due process provisions of the 1964 Civil Rights Act."  Dr. Coleman-Adebayo explained, "The MSPB has a long history of victimizing federal employees who seek justice by ruling nearly 97% in favor of federal agencies" and that giving MSPS summary judgment "would have been the death nail for any semblance of justice." She urged civil rights and whistleblower groups to support the WPEA and continue working together to improve federal employee whistleblower protections.   

For more information about the legislative history of the Whistleblower Protection Enhancement Act please read the NWC’s position statement. 

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The Senate's Oversight of Government Management Subcommittee (part of the Homeland Security and Governmental Affairs Committee) will hold a confirmation hearing for two members of the Merit Systems Protection Board (MSPB) on Tuesday, October 20, 2009, starting at 2:30 pm Eastern time. The hearing will be in Room 342 of the Dirksen Senate Office Building and broadcast on the internet. The subcommittee will hear testimony from the nominees, Susan Grundmann (to be Chairman) and Anne Wagner (to be Member).

Alert observers may look for the nominees' responses to questions about the effectiveness of whistleblower remedies currently available through MSPB, how the nominees might use the power provided by 5 U.S.C. §1204(a)(3) to conduct studies on whether the protections are adequate, and how MSPB could apply 5 U.S.C. §1214(g) to provide remedies for federal employee whistleblowers. The nominees might also face questions about MSPB's standards for orders staying a reprisal in Individual Right of Action (IRA) cases under 5 U.S.C. §1221(c).  The current MSPB regulation at 5 CFR §1209.10(b)(3) requires a showing of "substantial likelihood" whereas the standard under 5 CFR §1201.134(a) only requires a "reasonable grounds to believe" for requests made by the Office of Special Counsel (OSC).  Finally, there might be some discussion of the pending Whistleblower Protection Enhancement Act (WPEA), and how MSPB might respond to proposals made in various versions of that bill.

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