Shirley R. Hicks v. Merit Systems Protection Board

United States Court of Appeals
for the Federal Circuit
______________________
SHIRLEY R. HICKS,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2016-1091
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-1221-15-0217-W-1.
______________________
Decided: March 22, 2016
______________________
SHIRLEY R. HICKS , Burksville, AL, pro se.
K ATRINA L EDERER , Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. P OLISUK.
______________________
Before M OORE, MAYER, and WALLACH , Circuit Judges.
MAYER , Circuit Judge.
Shirley R. Hicks appeals the final decision of the Mer-
it Systems Protection Board (“board”) dismissing her
individual right of action (“IRA”) appeal for lack of juris-

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HICKS v. MSPB 2
diction. See Hicks v. Dep’t of the Air Force, No. AT-1221-
15-0217-W-1, 2015 MSPB LEXIS 8111 (Sept. 25, 2015)
(“Board Decision”). For the reasons discussed below, we
affirm.
BACKGROUND
In August 1989, Hicks, who was employed as a Secre-
tary, GS-05, at Maxwell Air Force Base in Alabama, was
removed from her position for failure to request leave in
accordance with proper procedures and being absent
without official leave. See Hill v. Dep’t of the Air Force, 49
M.S.P.R. 271, 272 (1991).1 Following an appeal to the
board, Hicks’ removal was mitigated to a sixty-day sus-
pension. Id. On July 13, 1990, the Air Force effected a
new removal action. Hicks once again appealed to the
board, but in an initial decision an administrative judge
affirmed the Air Force’s removal action. Approximately
one year later, Hicks filed a petition for review with the
full board, but her petition was dismissed as untimely
filed. On appeal, this court affirmed, explaining that
Hicks had not “presented any explanation as to how her
‘depression’ prevented her from meeting the Board’s filing
requirements.” See Hill v. Merit Sys. Prot. Bd., No. 92-
3509, 1993 U.S. App. LEXIS 4328, at *3 (Fed. Cir. Mar. 1,
1993) (reported in table format at 991 F.2d 808).
More than two decades later, in July 2014, Hicks con-
tacted the U.S. Office of Special Counsel (“Special Coun-
sel”), alleging that the Air Force had removed her in 1990
in retaliation for making protected disclosures. On Au-
gust 27, 2014, the Special Counsel notified Hicks that it
was terminating its investigation into her allegations.
Soon thereafter, on October 18, 2014, Hicks filed an IRA
appeal with the board. An administrative judge of the
1 Hicks was formerly known as Shirley D. Hill. See
Board Decision, 2015 MSPB LEXIS 8111, at *2 n.2.

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HICKS v. MSPB 3
board dismissed Hicks’ appeal for lack of jurisdiction,
concluding that she had “failed to nonfrivolously allege
that she made a protected disclosure as described under 5
U.S.C. § 2302(b)(8).” The judge explained that in 1990,
when Hicks was removed, filing an appeal with the board
was not a “protected disclosure” under the Whistleblower
Protection Act of 1989 (“WPA”), Pub. L. No. 101-12, 103
Stat. 16.
On appeal, the board affirmed. It acknowledged that
the Whistleblower Protection Enhancement Act of 2012
(“WPEA”), Pub. L. No. 112-199, 126 Stat. 1465, expanded
its jurisdiction to cover IRA appeals alleging that an
agency engaged in the prohibited personnel practices
described in 5 U.S.C. § 2302(b)(9), including appeals
alleging reprisal for filing a previous appeal with the
board. See Board Decision, 2015 MSPB LEXIS 8111, at
*7. The board concluded, however, that the WPEA did
not apply retroactively to afford Hicks “an IRA appeal
right based on retaliation that occurred more than [two]
decades before the effective date of the WPEA.” Id. at *8.
Hicks then filed a timely appeal with this court. We
have jurisdiction under 28 U.S.C. § 1295(a)(9).
D ISCUSSION
Our review of a decision of the board is circumscribed
by statute. We can set such a decision aside only if it is:
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c); see Marino v. Office of Pers.
Mgmt., 243 F.3d 1375, 1377 (Fed. Cir. 2001). Whether a
new statute can be applied retroactively is a question of
law that we review de novo. See Lapuh v. Merit Sys. Prot.
Bd., 284 F.3d 1277, 1281 (Fed. Cir. 2002).

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HICKS v. MSPB 4
Before it was amended in 2012, the WPA afforded cer-
tain federal employees the right to bring an IRA appeal
when an agency engaged in any of the prohibited person-
nel practices described in section 2302(b)(8). See Serrao v.
Merit Sys. Prot. Bd., 95 F.3d 1569, 1574–75 (Fed. Cir.
1996). Specifically, the WPA granted the board authority
to order corrective action in cases in which an employee
suffered reprisal for the disclosure of information which
he or she reasonably believed evidenced a “violation of
any law, rule, or regulation, or . . . gross mismanagement,
a gross waste of funds, an abuse of authority, or a sub-
stantial and specific danger to public health or safety.” 5
U.S.C. § 2302(b)(8). Significantly, however, the WPA did
not provide the board with authority to order corrective
action in cases involving reprisal for filing a previous
appeal with the board. See Spruill v. Merit Sys. Prot. Bd.,
978 F.2d 679, 690 (Fed. Cir. 1992) (explaining that the
WPA, prior to its amendment, did not provide an employ-
ee with the right to bring an IRA appeal based on a claim
of reprisal for making a disclosure protected under section
2302(b)(9)).
With the enactment of the WPEA, Congress signifi-
cantly increased the whistleblowing protections available
to federal employees. See S. Rep. No. 112-155, at 1 (2012),
as reprinted in 2012 U.S.C.C.A.N. 589, 589 (explaining
that the WPEA was intended “to strengthen the rights of
and protections for federal whistleblowers so that they
can more effectively help root out waste, fraud, and abuse
in the federal government”). The WPEA expanded the
IRA appeal right provided under 5 U.S.C. § 1221(a) to
include claims for corrective action based not only on the
prohibited personnel practices described in section
2302(b)(8), but also for those described in sections
2302(b)(9)(A)(i), (B), (C), and (D). See WPEA § 101(b)(1),
126 Stat. 1465–66; see also 5 U.S.C. § 1214. Of relevance
here, under the WPEA an aggrieved employee now has
the right, under certain circumstances, to seek corrective

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HICKS v. MSPB 5
action from the board when he or she suffers reprisal as a
result of filing a previous appeal with the board. See 5
U.S.C. § 2302(b)(9)(A)(i) (prohibiting an agency from
retaliating against an employee for “the exercise of any
appeal, complaint, or grievance right” related to whistle-
blowing).
As the board correctly determined, however, the
WPEA does not apply retroactively to provide a basis for
the exercise of jurisdiction over Hicks’ appeal alleging
that she was removed in 1990 in reprisal for filing a
previous appeal. See Board Decision, 2015 MSPB LEXIS
8111, at *7–8; see also Miller v. Merit Sys. Prot. Bd., 626
F. App’x 261, 266–67 (Fed. Cir. 2015) (assuming, but not
deciding, that the expanded IRA appeal rights provided
by the WPEA did not apply retroactively to cover alleged
reprisal for disclosures made during 2011 grievance
proceedings); Hooker v. Dep’t of Veterans Affairs, 120
M.S.P.R. 629, 638–39 (2014) (concluding that the WPEA
did not apply retroactively to supply jurisdiction over an
employee’s claim of reprisal for engaging in activities
protected under section 2302(b)(9)). Thus, even assuming
arguendo that Hicks’ claim of reprisal for filing a previous
board appeal falls within the scope of section
2302(b)(9)(A)(i), the WPEA does not apply retroactively to
provide the board with authority to review an agency
removal action which occurred more than two decades
before its enactment.
“Retroactivity is not favored in the law,” and “con-
gressional enactments and administrative rules will not
be construed to have retroactive effect unless their lan-
guage requires this result.” Bowen v. Georgetown Univ.
Hosp., 488 U.S. 204, 208 (1988); see also Landgraf v. USI
Film Prods., 511 U.S. 244, 265 (1994). Accordingly, we
will construe a statute to avoid retroactivity unless there
is clear evidence that Congress intended otherwise. See
Lindh v. Murphy, 521 U.S. 320, 328 n.4 (1997) (“[C]ases
where this Court has found truly ‘retroactive’ effect ade-

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HICKS v. MSPB 6
quately authorized by a statute have involved statutory
language that was so clear that it could sustain only one
interpretation.”); see also Landgraf, 511 U.S. at 265
(“[T]he presumption against retroactive legislation is
deeply rooted in our jurisprudence, and embodies a legal
doctrine centuries older than our Republic.” (footnote
omitted)); Presidio Components, Inc. v. Am. Tech. Ceram-
ics Corp., 702 F.3d 1351, 1364 (Fed. Cir. 2012) (“An Act
must clearly indicate its retroactive application.”).
In determining the temporal reach of a particular
statute, the “starting place . . . is the text of the statute
itself.” Lapuh, 284 F.3d at 1280. Here, there is nothing
in the text of section 101(b)(1) of the WPEA suggesting
that Congress intended for its expanded appeal rights to
apply to agency actions occurring long before its effective
date. To the contrary, Congress specifically provided,
with certain exceptions not relevant here, that the WPEA
would become effective on December 27, 2012, thirty days
after it was signed into law. See WPEA § 202, 126 Stat.
1476; Landgraf, 511 U.S. at 257 (“A statement that a
statute will become effective on a certain date does not
even arguably suggest that it has any application to
conduct that occurred at an earlier date.” (footnote omit-
ted)); see also AT&T Corp. v. Hulteen, 556 U.S. 701, 712–
13 (2009) (concluding that a statute did not apply retroac-
tively where Congress provided that certain provisions of
the statute would become effective on the date of enact-
ment and others would become effective six months later).
A statement in the WPEA’s legislative history suggests
that at least some of its provisions could apply retroac-
tively to cover appeals pending on or after the Act’s effec-
tive date.2 That statement, however, is insufficient,
2 The committee report accompanying the bill that
was ultimately enacted as the WPEA stated:

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HICKS v. MSPB 7
standing alone, to override the unequivocal statutory
language and demonstrate a “clear intent” that the WPEA
apply retroactively to provide the board with jurisdiction
over agency removal actions occurring long before its
enactment. Landgraf, 511 U.S. at 272–73 (“Requiring
clear intent assures that Congress itself has affirmatively
considered the potential unfairness of retroactive applica-
tion and determined that it is an acceptable price to pay
for the countervailing benefits.”); see also Chamberlain
Grp., Inc. v. Skylink Techs., Inc., 381 F.3d 1178, 1192
(Fed. Cir. 2004) (“If the statute is unambiguous, our
inquiry is at an end; we must enforce the congressional
intent embodied in that plain wording.”); Norfolk Dredg-
ing Co., Inc. v. United States, 375 F.3d 1106, 1110 (Fed.
Cir. 2004) (“The language of the statute at issue in this
case is clear and unambiguous, and absent extraordinary
circumstances our inquiry must end here.”).
The presumption against retroactive application of a
statute applies with special force in situations in which
such application “would have genuinely ‘retroactive’
The Committee expects and intends that the
Act’s provisions shall be applied in [Special Coun-
sel], [board], and judicial proceedings initiated by
or on behalf of a whistleblower and pending on or
after [the] effective date. Such application is ex-
pected and appropriate because the legislation
generally corrects erroneous decisions by the
[board] and the courts; removes and compensates
for burdens that were wrongfully imposed on in-
dividual whistleblowers exercising their rights in
the public interest; and improves the rules of ad-
ministrative and judicial procedure and jurisdic-
tion applicable to the vindication of whistle-
blowers’ rights.
S. Rep. No. 112-155, at 52 (emphasis added).

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HICKS v. MSPB 8
effect,” Landgraf, 511 U.S. at 277, i.e., where “it would
impair rights a party possessed when he acted, increase a
party’s liability for past conduct, or impose new duties
with respect to transactions already completed,” id. at
280; see also Princess Cruises v. United States, 397 F.3d
1358, 1366–67 (Fed. Cir. 2005) (stating that retroactive
application of a new law is disfavored because it upends
settled expectations). Under the circumstances presented
here, retroactive application of section 101(b)(1) of the
WPEA would significantly increase the government’s
potential liability for past conduct. As discussed previous-
ly, prior to the enactment of the WPEA, the board had no
authority to order corrective action in cases involving a
claim of reprisal for filing a previous appeal. See Hooker,
120 M.S.P.R. at 639 (explaining that although prior to the
WPEA the board could consider an employee’s allegation
of a violation of 5 U.S.C. § 2302(b)(9) as a viable affirma-
tive defense, it “lacked jurisdiction over such allegations
raised in an IRA appeal, and therefore could not order
corrective action in such cases”). Under the WPEA,
however, when an agency retaliates against an employee
for filing a previous appeal related to whistleblowing, the
board is empowered to order such corrective action as it
deems appropriate, 5 U.S.C. § 1221(e)(1), including restor-
ing the employee, “as nearly as possible, [to] the position
the individual would have been in had the prohibited
personnel practice not occurred,” and awarding “back pay
and related benefits, medical costs incurred, travel ex-
penses, any other reasonable and foreseeable consequen-
tial damages, and compensatory damages,” id.
§ 1221(g)(1)(A). See Rivers v. Roadway Express, Inc., 511
U.S. 298, 313 (1994) (concluding that a provision of the
Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat.
1071, should not be applied retroactively because it “cre-
ate[d] liabilities that had no legal existence before the Act
was passed”).

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HICKS v. MSPB 9
We have previously confronted—but rejected—
arguments that a newly enacted statute can be applied
retroactively to expand the scope of the board’s jurisdic-
tion. In Lapuh, we held that although the Veterans
Employment Opportunity Act of 1998, Pub. L. No. 105-
339, 112 Stat. 3182, provided the board with jurisdiction
over certain appeals alleging violations of veterans’ pref-
erence rights, it did not apply retroactively to supply
jurisdiction over violations occurring prior to the statute’s
effective date. 284 F.3d at 1280–82. Similarly, in Caddell
v. Department of Justice, we held that although a 1994
amendment to the WPA expanded the types of “personnel
actions” over which the board could exercise jurisdiction,
that amendment did not apply retroactively to provide
jurisdiction over an agency action that occurred several
years prior to the amendment’s effective date. 96 F.3d
1367, 1370–71 (Fed. Cir. 1996). Here, likewise, we con-
clude that section 101(b)(1) of the WPEA cannot be ap-
plied retroactively to supply a predicate for the exercise of
jurisdiction over Hicks’ claim that the Air Force removed
her in 1990 in retaliation for filing a previous appeal.
We emphasize, however, that our holding is a narrow
one. While we conclude that, under the particular cir-
cumstances presented here, section 101(b)(1) of the WPEA
does not operate retroactively to supply board jurisdiction
over Hicks’ appeal, we express no view on whether other
provisions of the WPEA can be given retroactive effect.3
3 For example, we need not—and therefore do not––
decide whether the board has correctly concluded that the
WPEA’s “clarification” of the term “disclosure”
applies retroactively, see Day v. Dep’t of Homeland Sec.,
119 M.S.P.R. 589, 598 (2013), but that the WPEA’s provi-
sion allowing for the award of compensatory damages
does not, see King v. Dep’t of the Air Force, 119 M.S.P.R.
663, 669–75 (2013).

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HICKS v. MSPB 10
See Landgraf, 511 U.S. at 280 (explaining that “there is
no special reason to think that all the diverse provisions
of [an] Act must be treated uniformly” for retroactivity
purposes).
CONCLUSION
Accordingly, the decision of the Merit Systems Protec-
tion Board is affirmed.
AFFIRMED

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