Federal Legal Corner: New Whistleblower Protection Applied Retroactively

On February 27, the Merit Systems Protection Board (MSPB) issued its decision in Nasuti v. Department of State, 2014 MSPB 12, holding that the expanded definitions of permitted recipients for protected whistleblower disclosures in the Whistleblower Protection Enhancement Act of 2012 (WPEA) had retroactive effect.

Nasuti had blown the whistle in 2008 on issues concerning allegedly defective body armor being issued to State Department employees being deployed to Iraq, and was subsequently removed by the department.Nasuti first brought his claim of whistleblower reprisal in his removal to the Office of Special Counsel, and then to the MSPB under the independent right of action process.OSC declined to prosecute, and MSPB dismissed Nasuti’s case on several grounds.Nasuti appealed the MSPB’s decision to the U.S. Court of Appeals for the Federal Circuit.The Federal Circuit reversed the MSPB’s dismissal order on all grounds except one, remanding the case to the MSPB to make a determination on the issue of whether the Nasuti’s 2008 disclosure fell within the expanded definitions of Section 101 of the WPEA, and if that 2012 WPEA provision applied retroactively to Nasuti’s case.

The specific provision of Section 101 relevant to Nasuti’s case clarified that a whistleblowing disclosure was still protected even if made to the whistleblower’s supervisor or to persons without authority to address the problem. In some pre-WPEA cases (including several dating to the mid-1990s), the MSPB and the Federal Circuit had read those restrictions into the Whistleblower Protection Act.According to the Senate report for the WPEA, Congress’ goal in passing Section 101 was to legislatively overrule those decisions.In the present appeal, the MSPB found that the relevant provision of Section 101 did extend retroactively to Nasuti’s disclosures.The MSPB further disputed the Senate report’s characterization of the most recent pre-WPEA precedent on this issue, noting that the immediate pre-WPEA cases had moved away from requiring that disclosures to persons with authority to address the problem.

Based on this reasoning and on the issues already decided by the Federal Circuit, the MSPB held that Nasuti had met his burden of making a nonfrivolous allegation of whistleblower reprisal, giving the MSPB jurisdiction over his case.The MSPB then remanded the case to an administrative judge for adjudication on the merits.

* This information is provided by the attorneys at Passman& Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman& Kaplan, P.C., go to http://www.passmanandkaplan.com.

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