Will the new Whistleblower Protection Enhancement Act apply retroactively?
Not without legislative changes. Right now, the two bills (S. 743 and H.R. 3289) state that the law will take effect 30 days after enactment. But there is nothing about whether it will apply to cases pending at the time of enactment, or conduct that occurred before the bill but where no case has been brought.
In other words, if you’re waiting for the new bill to pass before bringing a complaint for reprisal or other PPP, the new law may not help you.
A simple legislative fix, such as:
This Act shall control any administrative proceeding pending at the time such provision takes effect.
The background rule is that a Supreme Court case from 1994, Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), states that the presumption is that new laws will not be retroactive unless Congress rebuts this presumption by clearly intending to apply it retroactively. The proposed legislative language above should pass muster, especially since it was blessed by the Federal Circuit in 1996:
Congress easily could have modified the deleted provision to indicate that “the Act shall control any administrative proceeding pending at the time such provision takes effect.” Congress failed to do that in this case and we will not read this language into the statute.
Some additional background is that the 1989 WPA applied retroactively (as noted by the OSC annual report for 1991, pages 9, 11), but the 1994 reauthorization did not because of Landgraf and because it did not have the right legislative language.
So, if you want WPEA to apply to you, contact your member of Congress and Tom Devine, Legal Director of the Government Accountability Project, who is the lead author of WPEA. He may be reached at 202-457-0034 or firstname.lastname@example.org.