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.