In November of 2012 congress unanimously approved the passage of the whistleblowers could not protect themselves against associated retaliation by employers because of loopholes by the Federal Circuit Court of Appeals. By passing the Whistleblower Protection Enhancement Act, congress acknowledged that bad administrative and court rulings had undermined its intent to protect and encourage whistleblowers.
Recently, the Merit Systems Protection Board considered Day v. Department of Homeland Security, in which a number of federal agencies and members of the whistleblower community argued whether or not the Whistleblower Protection Enhancement Act should apply in pending cases. The Merit Systems Protection Board decided that the Whistleblower Protection Enhancement Act does apply to pending cases. The decision means that whistleblowers in cases that are in the process of litigation are protected from retaliation. This is a victory for whistleblowers, particularly those involved in pending litigation.
A three person panel of the Merit Systems Protection Board voted 2-1 to apply the Whistleblower Protection Enhancement Act retroactively. There were three main arguments that influenced the decision. The first argument that swayed the decision was that Congress intended the Whistleblower Protection Enhancement Act to apply to pending cases. Second, it’s OK to apply a new law to pending litigation if the relevant part of the law provides only clarification, not substantive change. Lastly, applying the rule to pending cases shouldn’t surprise anyone unfairly in a pending case.
The end result of this ruling is that whistleblowers disclosures made during the course of duties are protected from retaliation retroactively.