Hicks v. Merit Systems Protection Board
819 F.3d 1318
| Fed. Cir. | 2016Background
- Shirley R. Hicks was removed from Air Force employment in 1989–1990; earlier removal was mitigated but a subsequent 1990 removal was upheld by the MSPB and the Federal Circuit on procedural grounds.
- In July–August 2014 Hicks alleged to the Office of Special Counsel that her 1990 removal was retaliation for protected disclosures; OSC closed its investigation in August 2014.
- Hicks filed an individual right of action (IRA) appeal with the MSPB in October 2014 asserting that her 1990 removal was retaliation for filing a prior MSPB appeal.
- An MSPB judge dismissed the IRA appeal for lack of jurisdiction, concluding Hicks failed to nonfrivolously allege a protected disclosure under pre‑WPEA law; the full board affirmed.
- The board acknowledged the WPEA (2012) expanded IRA jurisdiction to cover reprisal for filing prior appeals (5 U.S.C. § 2302(b)(9)(A)(i)) but held the WPEA did not apply retroactively to actions occurring decades before its effective date.
- The Federal Circuit affirmed, applying the presumption against retroactivity and concluding Congress did not clearly express an intent for the WPEA’s expanded jurisdiction to reach Hicks’ 1990 removal.
Issues
| Issue | Hicks' Argument | Air Force / Board's Argument | Held |
|---|---|---|---|
| Whether the WPEA’s expansion of IRA jurisdiction to cover reprisal for filing prior appeals applies retroactively to Hicks’ 1990 removal | WPEA should supply jurisdiction so Hicks can pursue an IRA based on alleged 1990 reprisal for filing a prior MSPB appeal | WPEA does not apply retroactively; before WPEA the MSPB lacked authority to order corrective relief for reprisal based on filing prior appeals | WPEA does not apply retroactively here; board lacks jurisdiction over Hicks’ 1990 removal claim |
Key Cases Cited
- Landgraf v. USI Film Prods., 511 U.S. 244 (retroactivity presumption; statute not applied retroactively absent clear congressional intent)
- Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (statutes not construed to have retroactive effect absent clear language)
- Lindh v. Murphy, 521 U.S. 320 (retroactivity requires clear statutory language)
- AT&T Corp. v. Hulteen, 556 U.S. 701 (statutory effective‑date language weighs against retroactivity)
- Rivers v. Roadway Express, Inc., 511 U.S. 298 (declining retroactive application that creates new liabilities)
- Lapuh v. Merit Sys. Prot. Bd., 284 F.3d 1277 (Fed. Cir. decision refusing to apply statutory expansion of MSPB jurisdiction retroactively)
- Caddell v. Dep’t of Justice, 96 F.3d 1367 (Fed. Cir. holding that amendments expanding MSPB jurisdiction did not apply retroactively)
- Serrao v. Merit Sys. Prot. Bd., 95 F.3d 1569 (describing pre‑WPEA IRA scope under § 2302(b)(8))
- Spruill v. Merit Sys. Prot. Bd., 978 F.2d 679 (explaining WPA pre‑amendment limitations on IRA claims)
- Marino v. Office of Pers. Mgmt., 243 F.3d 1375 (standard of review for MSPB decisions)