Hicks v. MSPB

Hicks v. MSPB
819 F.3d 1318 (Fed. Cir. 2016)
Authored by Jenny DaRin

Statement of Facts: In August 1989, the Air Force fired Ms. Hicks from her secretary position at the Maxwell Air Force Base in Alabama. The Air Force fired Ms. Hicks because she missed work after “fail[ing] to request leave in accordance with proper procedures.” Hicks v. MSPB, 819 F.3d 1318, 1319 (Fed. Cir. 2016). Ms. Hicks appealed the Air Force’s decision to fire her to the Merit Systems Protection Board (“MSPB”), which reversed the former organization’s decision, imposing a sixty day sentence instead. One year later, the Air Force fired Ms. Hicks again.

Procedural History: Ms. Hicks appealed the Air Force’s second decision to fire her to the MSPB, which upheld the former organization’s decision. One year later, Ms. Hicks sought appellate review of the disciplinary decision by the entire MSPB. Ms. Hicks’ “petition was dismissed as untimely.” Id. Ms. Hicks filed a subsequent appeal with the Federal Circuit. The court affirmed the MSPB’s decision because it failed to see how Ms. Hicks’ depression hindered her ability to file a timely appeal with the MSPB.

Twenty-three years later, Ms. Hicks submitted a complaint to the United States Office of Special Counsel (“Office of Special Counsel”), claiming that the Air Force fired her in retaliation for appealing its first disciplinary action. Two months after Ms. Hicks submitted her complaint, the Office of Special Counsel completed its probe into the Air Force’s purported retaliation, opting not to initiate an action against the Air Force. Ms. Hicks appealed the outcome of the Office of Special Counsel’s investigation to the MSPB pursuant to the Whistleblower Protection Enhancement Act of 2012 (the “WPEA”). The MSPB ultimately determined that while WPEA bars agencies from firing government employees in retaliation for appealing agency decisions, the statute should not be applied retroactively. Ms. Hicks appealed the MSPB’s decision to the Federal Circuit.

Question Presented: Did the MSPB properly refuse to retroactively apply WPEA to Ms. Hicks’ claim that the Air Force fired her in retaliation for appealing its previous disciplinary decision?

Holding: The Federal Circuit held that the MSPB properly refused to retroactively apply WPEA to Ms. Hicks’ claim that the Air Force fired her in retaliation for appealing its previous disciplinary action. Nonetheless, the Federal Circuit limited its decision to § 101(b)(1) of WPEA, declining to determine whether other provisions of the statute could properly be applied retroactively.

Reasoning: Courts presume statutes should not be applied retroactively absent a plain Congressional intent to the contrary. Here, the Federal Circuit determined that the pertinent provision did not indicate such an intent, noting that “Congress specifically provided . . . that WPEA would become effective . . . thirty days after it was signed into law.” Hicks, 819 F.3d at 1321. Although the Court acknowledged that WPEA’s legislative history “suggests that at least some of its provisions could apply retroactively to cover appeals pending on or after the Act’s effective date,” it asserted that this intimation could not alone indicate a plain Congressional intent to permit retroactive application of the provision at issue. Id. Lastly, the Federal Circuit noted that retroactive application of statutes is particularly disfavored, when such application would “increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” Id. at 1322 (quoting Landgraf, 511 U.S. at 277) (internal quotation marks omitted) (citing Princess Cruises, Inc. v. United States, 397 F.3d 1358, 1366-67 (Fed. Cir. 2005)).

Here, retroactive application would “significantly increase the government’s potential liability for past conduct.” Id. Before Congress passed WPEA, the MSPB could contemplate whether a governmental organization fired an employee in retaliation for appealing a decision in a disciplinary action as an affirmative defense, but not as a distinct cause of action. Yet, if § 101(b)(1) was applied retroactively, individuals fired before the ratification of WPEA could now seek a remedy for the government’s retaliatory conduct. Thus, the retroactive application of § 101(b)(1) of WPEA would “significantly increase the government’s potential liability for past conduct.” Id. For the aforesaid reasons, the Federal Circuit held the MSPB properly refused to retroactively apply § 101(b)(1) of WPEA to Ms. Hicks’ claim. However, the court limited its holding against retroactive application of the WPEA to § 101(b)(1) recognizing that under Landgraf, “there is no special reason to think that all the diverse provisions of [an] Act must be treated uniformly” with respect to retroactivity. Hicks, 819 F.3d at 1323 (quoting 511 U.S. at 280) (internal quotation marks omitted).

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