[Federal Register Volume 78, Number 27 (Friday, February 8, 2013)]
[Notices]
[Page 9431]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-02879]


=======================================================================
-----------------------------------------------------------------------

MERIT SYSTEMS PROTECTION BOARD


Notice of Opportunity To File Amicus Briefs

AGENCY: Merit Systems Protection Board.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: The Merit Systems Protection Board (MSPB or Board) announces 
the opportunity to file amicus briefs in the matter of Thomas F. Day v. 
Department of Homeland Security, MSPB Docket Number SF-1221-12-0528-W-
1, currently pending before the Board on interlocutory appeal. The 
administrative judge certified for interlocutory review the question of 
whether the provisions of the Whistleblower Protection Enhancement Act 
of 2012 (WPEA), 112 Public Law 199, may be applied retroactively to 
pending cases involving conduct occurring prior to its effective date.
    Of particular relevance in Day is the question of the retroactive 
effect of section 101(b)(2)(B) of the WPEA, which provides in relevant 
part that a disclosure made to an alleged wrongdoer or during an 
employee's normal course of duties is not excluded from protection 
against reprisal under 5 U.S.C. 2302(b)(8). In Huffman v. Office of 
Personnel Management, 263 F.3d 1341, 1352 (Fed. Cir. 2001), the U.S. 
Court of Appeals for the Federal Circuit held that a disclosure made as 
part of an employee's normal duties, and through normal channels, was 
not protected under the Whistleblower Protection Act (WPA). The court 
in Huffman further held that a complaint made to a supervisor regarding 
the supervisor's own alleged wrongdoing was not protected under the 
WPA. Id. at 1350. The Board has applied the holdings in Huffman as 
binding precedent. See, e.g., Stiles v. Department of Homeland 
Security, 116 M.S.P.R. 263, ] 15 (2011). Therefore, the Board must 
determine in Day whether to apply the WPEA standard or the Huffman 
standard in determining whether disclosures that occurred prior to the 
effective date of the WPEA are entitled to protection. Information 
about the Day case and the WPEA may be found on the Board's Web site at 
www.mspb.gov/SignificantCases.
    Interested individuals or organizations may submit amicus briefs or 
other comments on the question presented in Day no later than March 1, 
2013. Amicus briefs must be filed with the Clerk of the Board. Briefs 
shall not exceed 30 pages in length. The text shall be double-spaced, 
except for quotations and footnotes, and the briefs shall be on 8\1/2\ 
by 11 inch paper with one inch margins on all four sides. All amicus 
briefs received will be posted on the Board's Web site at www.mspb.gov/SignificantCases after March 1, 2013.

DATES: All briefs submitted in response to this notice must be received 
by the Clerk of the Board on or before March 1, 2013.

ADDRESSES: All briefs shall be captioned ``Thomas F. Day v. Department 
of Homeland Security'' and entitled ``Amicus Brief.'' Only one copy of 
the brief need be submitted. The Board encourages interested parties to 
submit amicus briefs as attachments to electronic mail addressed to 
[email protected]. An email should contain a subject line indicating that 
the submission contains an amicus brief in the Day case. Any commonly-
used word processing format or PDF format is acceptable; text formats 
are preferable to image formats. Briefs may also be filed with William 
D. Spencer, Clerk of the Board, Merit Systems Protection Board, 1615 M 
Street NW., Washington, DC 20419; Fax (202) 653-7130.

FOR FURTHER INFORMATION CONTACT: Molly Leckey, Office of the Clerk of 
the Board, Merit Systems Protection Board, 1615 M Street NW., 
Washington, DC 20419; (202) 653-7200; [email protected].

William D. Spencer,
Clerk of the Board.
[FR Doc. 2013-02879 Filed 2-7-13; 8:45 am]
BILLING CODE 7400-01-P