The Merit Systems Protection Board (MSPB) issued a ruling today in the case of Day v. Department of Homeland Security. The MSPB held that the new definition of a" protected disclosure" set forth in the Whistleblower Protection Enhancement Act (WEPA) applied to cases pending and/or which arose before that law was passed. The Board ruled that the Congress, in enacting the WEPA, intended to "clarify" the scope of disclosures covered under the federal employee whistleblower law, and that this clarification would apply to all pending cases.
The National Whistleblower Center filed a Amicus Curiae brief with the MSPB in which it had strongly urged the MSPB to apply the "clarification" standard and to apply the WPEA’s definition of protected disclosure to all pending cases. The MSPB agreed with this analysis.
Stephen M. Kohn, Executive Director of the NWC, said "This is a major victory for all federal employee whistleblowers whose cases were pending at the time the WEPA was passed. In passing the WEPA Congress recognized that bad administrative and court rulings had undermined its intent to encourage and protect whistleblowers. This is a major victory for whistleblowers and sends the message that the MSPB will enforce the law."
The MSPB’s decision can be viewed here.
The NWC’s brief can be viewed here.