To put if briefly and profanely:  if you have a fed employee whistleblower case filed before December 27, 2012, it sucks to be you.

The U.S. Merit Systems Protection Board ruled August 14, 2013 that compensatory damages allowed under the Whistleblower Protection Enhancement Act of 2012 are not available retroactively.  The Act became effective December 27, 2012 but the Air Force employee in this case had filed her appeal back on January 12, 2010.

Questions like this are not unusual as courts and administrative agencies try to balance two principals of legal interpretation:  (1) a court should apply the law in effect at the time of issuing a decision; and (2) a law is not to be applied retroactively unless that was its clear intent.

The Whistleblower Act of 2012 greatly expanded the rights of whistleblowers in the federal sector, for the first time allowing the recovering of compensatory damages–a category that traditionally includes ones for things like mental anguish.  Before this Act, regardless of the level of suffering endured, only economic damages could be recovered.  That restriction made whistleblowing less worth the high risks of harm to career and contentment that reporting wrongdoing often entails.  When fewer are willing to blow the whistle, society can suffer from the abuses of authority, waste of funds, safety violations, and corruption that go unreported.

The Board did leave the door open to applying some parts of the 2012 Act retroactively, where there was not an issue of dollars of damages involved.  But as to monetary damages, the Board decided that the principals of sovereign immunity meant that any doubts should be resolved in the favor of the government.  Sovereign immunity is a doctrine dating back to the days that governments were run by kings rather than the people, holding that the king can only be sued for what the king allows you to sue him for.  In other words, unless Congress (or a state legislature) specifically says the government can be sued over something, it can’t be.  For those who aren’t kings, the doctrine is nonetheless argued to protect you because without it people would sue the government all the time and your taxes might have to be raised to pay the judgments.

In the end this is a dispute about whether vagueness in a law designed to extend rights should be interpreted in a way that favors the extension of rights or based on the more general principal of protecting the treasury from lawsuits.  That is the sort of fundamental philosophical question that, should it reach the Supreme Court, may get decided on a 5-4 vote, with the outcome unclear until the 5th vote is known.