[Federal Register Volume 78, Number 54 (Wednesday, March 20, 2013)]
[Notices]
[Pages 17233-17234]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-06349]


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MERIT SYSTEMS PROTECTION BOARD


Notice of Opportunity To File Amicus Briefs

AGENCY: Merit Systems Protection Board.

ACTION: Notice.

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SUMMARY: The Merit Systems Protection Board (MSPB or Board) announces 
the opportunity to file amicus briefs in the matter of Barbara R. King 
v. Department of the Air Force, MSPB Docket Number DA-0752-09-0604-P-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, with regard to damages may be 
applied retroactively to cases pending prior to its effective date.
    Of particular relevance in King is the question of the retroactive 
effect of section 107(b) of the WPEA, which addresses damages available 
to individuals who have suffered reprisal for protected disclosures or 
activities. Prior to enactment of the WPEA, the corrective action 
available to such individuals under the Whistleblower Protection Act 
(WPA) included reasonable and foreseeable consequential damages, but 
not compensatory, or non-pecuniary, damages. See Bohac v. Department of 
Agriculture, 239 F.3d 1334, 1337-43 (Fed. Cir. 2001). However, under 
section 107(b) of the WPEA, corrective action may also include 
``compensatory damages (including interest, reasonable expert witness 
fees, and costs).'' Therefore, the Board must determine in King whether 
to apply the WPEA standard or the WPA standard in determining what 
corrective action is available in appeals pending prior to the 
effective date of the WPEA.
    In King, the appellant's protected disclosures and the agency's 
retaliatory

[[Page 17234]]

personnel action occurred in 2009. The appellant filed her initial 
Board appeal in 2009, and the administrative judge issued an initial 
decision on October 3, 2012, finding, in relevant part, that the 
appellant established reprisal for whistleblowing. The initial decision 
became the final decision of the Board on November 7, 2012, after 
neither party filed a petition for review. The appellant filed her 
request for compensatory damages on December 17, 2012. The WPEA was 
enacted on November 27, 2012, and became effective on December 27, 
2012.
    Interested persons or organizations may submit amicus briefs or 
other comments on the question presented in King no later than April 
12, 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.

DATES: All briefs submitted in response to this notice must be received 
by the Clerk of the Board on or before April 12, 2013.

ADDRESSES: All briefs shall be captioned ``Barbara R. King v. 
Department of the Air Force'' and entitled ``Amicus Brief.'' Only one 
copy of the brief need be submitted. The Board encourages interested 
persons and organizations 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 King 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 the Office of the 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, Merit Systems Protection 
Board, Office of the Clerk of the Board, 1615 M Street NW., Washington, 
DC 20419; (202) 653-7200; [email protected].

William D. Spencer,
Clerk of the Board.
[FR Doc. 2013-06349 Filed 3-19-13; 8:45 am]
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