U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

Joan L. Pastor v. Department of Veterans Affairs, Office of Personnel Management, and Office of Special Counsel, PH-1221-99-0089-B-2, June 28, 2002

On an issue of first impression, the Board held that future medical costs are recoverable under 5 U.S.C. § 1221(g)(1)(A)(ii) -- the expanded provisions of the Whistleblower Protection Act.

The appellant filed an individual right of action (IRA) appeal alleging retaliation for whistleblowing activity. The administrative judge (AJ) issued an initial decision on April 16, 1999, finding that the agency had prematurely terminated the appellant's term appointment in retaliation for whistleblowing. Because neither party filed a petition for review on the merits, the initial decision became the final decision of the Board on May 21, 1999.

On May 21, 1999, the appellant filed a motion for consequential damages under 5 U.S.C. § 1221(g)(1)(A), relating to whistleblowers. Among other things, she sought recompense for approximately $5,000 in medical expenses actually incurred. The AJ judge found that these costs were recoverable as consequential damages.

The appellant also sought an award of $13,750 for future medical expenses and medical treatment. In his November 23, 1999, decision, the AJ held that these expenses were not recoverable under 5 U.S.C. § 1221(g)(1)(A). Noting that the statute speaks only of "medical costs incurred," the AJ held that the provision's language, strictly construed, did not authorize reimbursement for future expenses. In the absence of "specific statutory authority" or Board precedent, he denied the appellant's request for reimbursement.

The appellant and the agency filed petitions for review with the Board. The Board reopened the case on its own motion to analyze the appellant's claim for future medical expenses under 5 U.S.C. § 1221(g)(1)(A), an issue of first impression. The Board decided that the statute authorized payment for future medical expenses and remanded the case to the administrative judge.

The Board concluded that the term "medical costs incurred" is ambiguous and could reasonably be interpreted in two ways. It could be read to include only medical costs already incurred, as the AJ found, or to include future provable medical expenses. The Board resolved the ambiguity in favor of awarding future medical expenses based on the following analysis.

First, the Board held that the whistleblower statute is remedial legislation and that, in general, remedial statutes are to be construed liberally. Second, the Board found that in ascertaining the meaning of a statute, the whole statute should be read harmoniously to leave no provision superfluous or inoperative.

Applying these principles, the Board pointed to the language of 5 U.S.C. § 1221(g)(1)(A)(i), which provides that a whistleblower against whom an agency retaliates is to be placed in the position she would have been in had the prohibited personnel practice not occurred. Based upon this phrase, the Board concluded that Congress required the Board to fashion the most complete relief possible within the terms of the statute.

Further, the Board reasoned that if, as the AJ found, the term "incurred" is construed to include only medical expenses incurred as of the date of the closing of the record, an appellant's ability to claim her losses will be "arbitrarily cut off" depending on how quickly her case is adjudicated. The Board concluded that this would not comport with the make-whole provision of the Act, which "contemplates that the agency will be required to pay for medical treatment to the extent necessary to alleviate, as much as possible, the results of its retaliatory acts."

Turning to the language of § 1221(g)(1)(A)(ii), the Board found that such treatment includes future medical expenses because Congress is presumed to know the existing law when it enacts legislation. Where, as here, Congress used a legal term, a tribunal should interpret that term in its "familiar legal sense" unless Congress has provided a "contrary direction." The Board proceeded to cite several court decisions interpreting state law to mean that consequential damages included future provable medical expenses and adopted this interpretation. Based upon this analysis, the Board held that the term "medical costs incurred" includes future medical expenses if proven with reasonable certainty.

On June 28, 2002, the AJ issued a new decision on the issue of payment of future medical expenses, following consideration of briefs from both the Office of Personnel Management and the Office of Special Counsel. The appellant elected not to supplement the existing record with respect to her claim for future medical expenses. She chose, however, to proceed with the evidence she had presented in her original petition for consequential damages. In that petition, the appellant requested $15,750 for future psychological treatment. In support of that claimed amount, the appellant offered a medical assessment, which estimated the number of visits and the charges associated with a four to five year course of treatment.

The agency, for its part, simply argued that the appellant had not established her future medical expenses with a reasonable degree of certainty. The agency, therefore, requested that her claim be denied. The administrative judge granted the appellant's request for future medical expenses as an element of consequential damages in part and denied it in part. Specifically, he found that the appellant had presented enough evidence to establish some, but not all, of her claimed future medical expenses.

OPM plans to submit a petition for review to the Board, challenging the decision to grant future medical expenses as a part of consequential damages.

The issue presented in this decision is whether the language in 5 U.S.C. § 1221(g)(1)(A) clearly and unambiguously waives sovereign immunity for future medical expenses. OPM's position is that in enacting 5 U.S.C. § 1221(g)(1)(A)(i) and (ii), Congress did not waive sovereign immunity for future medical expenses. A tribunal, therefore, may not award monetary damages against the government unless Congress has waived sovereign immunity. Tribunals must construe waivers of sovereign immunity strictly and must construe any ambiguities in favor of immunity. They are not to be "liberally construed" and exceptions may not be implied. Congress did not waive sovereign immunity for future medical expenses when it enacted 5 U.S.C. § 1221(g)(1)(A)(i) and (ii). The Board concluded that this statutory provision is ambiguous in that it is susceptible to differing, reasonable interpretations. Specifically, the Board held that "[t]he term 'medical costs incurred' . . . is ambiguous in that it could reasonably be interpreted the way the administrative judge did to mean only medical costs that have already been incurred, or it could be read to also include future provable medical expenses." The Board's analysis should have stopped there.