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MSPB Out of Time Amicus Letter in Kerr v Salazar

MSPB Out of Time Amicus Letter in Kerr v Salazar

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Published by MSPBWatch
MSPB Out of Time Amicus Letter in Kerr v Salazar
MSPB Out of Time Amicus Letter in Kerr v Salazar

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Published by: MSPBWatch on Jul 17, 2013
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11/01/2013

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IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUITLESLIE A. KERR,Plaintiff-Appellant,v.KENNETH LEE SALAZAR,Defendant-Appellee. NO. 12-35084
MOTION FOR LEAVE TO FILEOUT OF TIME AN AMICUS LETTER
The Merit Systems Protection Board (“MSPB” or “Board”), throughits counsel, requests leave to file out of time an amicus letter addressing theretroactivity of section 101 of the Whistleblower Protection EnhancementAct of 2012 (“WPEA”) and whether the Board’s decision in Day v. Dep’t of Homeland Sec., 2013 MSPB 49 (June 26, 2013) is consistent with thisCourt’s precedent on retroactivity. Counsel for the Board contacted the parties regarding this motion on July 16, speaking with counsel for theappellee and leaving a message for counsel for the appellant. As of the timeof filing, the parties have not indicated whether they consent to or opposethe motion. The grounds for the motion are as follows:1. On April 26, 2013, the Court ordered supplemental briefing on theissue of the effect, if any, of the WPEA on this case, including whether the
Case: 12-35084 07/17/2013 ID: 8707379 DktEntry: 66-1 Page: 1 of 5
 
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WPEA should be applied retroactively, i.e., to pending cases commenced  before its enactment. At that time, the Board did not have a position on thatissue. In fact, the Board itself was considering the retroactivity of section101 of the WPEA in Day v. Dep’t of Homeland Sec., MSPB Docket No. SF-1221-12-0528-W-1. See 78 Fed. Reg. 9,431 (Feb. 8, 2013) (MSPB Noticeof Opportunity to File Amicus Briefs).2. On June 26, 2013, the Board issued its decision in Day. The Board held, among other things, that section 101 of the WPEA applies to cases thatwere commenced before its enactment. The Day decision was provided tothe Court by the appellant in a letter filed pursuant to Fed. R. App. P. 28(j)on June 27, 2013.3. On July 3, 2013, counsel for the appellee filed a letter with thisCourt asserting that the Board’s reasoning in Day was “severely flawed” and that the Board erred in concluding that section 101 of the WPEA applies to pending cases. The letter appears to represent the first time that theDepartment of Justice has indicated that it will not defend the Board’sdecision in Day. The Department of Justice did not inform the Board that itwould be taking this position.
Case: 12-35084 07/17/2013 ID: 8707379 DktEntry: 66-1 Page: 2 of 5
 
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4. Given the appellee’s position, the Board requests the opportunityto file a brief amicus letter explaining why Day is consistent with thisCourt’s precedent. Although it is out of time, the letter otherwise complieswith the Court’s April 26, 2013 Order, i.e., it is not longer than 10 pages or 2800 words. Pursuant to Federal Rule of Appellate Procedure 29(b) and  Ninth Circuit Rule 29-2(b), the proposed amicus letter accompanies thismotion.Wherefore, for the foregoing reasons, the Merit Systems ProtectionBoard respectfully requests leave to file its amicus letter out of time.Respectfully submitted,BRYAN G. POLISUK General Counsels/ Jeffrey A. Gauger JEFFREY A. GAUGER AttorneyOffice of the General CounselMerit Systems Protection Board 1615 M Street, NWWashington, DC 20419-0002(202) 254-4488DATE: July 17, 2013
Case: 12-35084 07/17/2013 ID: 8707379 DktEntry: 66-1 Page: 3 of 5

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