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Retroactive Rights a Victory for Whistleblowers

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Last week, the U.S. Merit Systems Protections Board (MSPB) expanded the application of the Whistleblower Protection Enhancement Act (WPEA) in 2-1 decision in the case Day v. Department of Homeland Security. The opinion retroactively granted anti-retaliation protection to whistleblowers whose cases were pending before the WPEA was passed in November 2012.

The Project On Government Oversight advocated for the passage of the WPEA for more than a decade, based on our belief that it is crucial to provide protections for the courageous workers who expose corruption and safeguard taxpayer dollars. In the same spirit, we signed on to an amicus curiae, or friend of the court, brief, along with Reps. Elijah Cummings (D-MD) and Jackie Speier (D-CA), the Government Accountability Project and other allies, supporting this retroactive application of the law in the MSPB case, which was the first significant test case of the law.

The opinion in Day, which was written by Susan Grundmann and Anne Wagner, justified the decision by explaining that the WPEA clarified protections previously established by Congress instead of effecting substantive change, and thus does not impose new expectations on the parties in whistleblower cases.

Angela Canterbury, POGO’s Director of Public Policy, said:

This very welcome decision repairs the rights of whistleblowers who have been waiting for a fair shot at justice---some, like Richard Barlow, for many years. Finally, after more than a decade of work, brave public servants who have come forward when they witnessed wrongdoing will have the protections and remedies Congress intended. Now I hope others who have stayed silent will be encouraged to come forward to hold the government accountable.

Richard Barlow was a CIA and Pentagon analyst who was credited with the arrest of two agents involved with Pakistan’s illicit nuclear weapons program headed by A.Q. Khan. In the 1980s, he discovered that U.S. officials were hiding Pakistan’s weapons capabilities from Congress. Had Congress known the truth, it would have been legally mandated to stop sales of F-16 fighter jets to Pakistan. Barlow simply raised questions internally to his superiors about officials concealing information from Congress.

In response, government officials retaliated against Barlow, revoking his security clearance and ending both his career and his marriage. There were Inspector General, GAO and congressional investigations which demonstrated that Barlow had been retaliated against. But when POGO and others tried to help Barlow get justice, the obstacles in the previously broken law—along with the government’s abuse of the state secrets privilege—were too great to overcome. Perhaps now there is a chance that he and others like him may finally get the remedies Congress intended. Click here to read more on Barlow’s case. 

POGO applauds the positive ruling in Day, and we hope this precedent will be observed in all other Whistleblower Protection Act court proceedings. POGO also signed an amicus curiae brief in Kerr v. Salazar, another case currently pending in the Ninth Circuit Court of Appeals, in which the retroactive application of the WPEA is critical. It is important that retroactivity is applied across the nation so that we can more adequately protect the brave federal employees who expose government waste, corruption, and abuse.

By: Michael Smallberg
Investigator, POGO

Michael Smallberg, Investigator Michael Smallberg is an investigator for the Project On Government Oversight. Michael's investigations center on oversight of the financial sector.

By: Jana Persky
Intern, POGO

Photograph of Jana Persky Jana Persky is an intern for the Project On Government Oversight.

Topics: Whistleblower Protections

Authors: Jana Persky, Michael Smallberg

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