The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
In this action, Plaintiff Christina Conyers Williams ("Williams") claims that Defendant, the District of Columbia (the "District"), retaliated against her in violation of the District of Columbia Whistleblower Protection Act (the "DC-WPA") for testimony that she provided before the District of Columbia Council. The action is now in the pretrial stage of litigation and the trial will begin on November 16, 2011. Currently before the Court is the District's  Motion Regarding Legal Basis for Defenses, through which the District asks the Court to instruct the jury on three of its intended legal defenses at trial. Upon consideration of the parties' submissions, the relevant authorities, and the record as a whole, the Court shall GRANT-IN-PART and DENY-IN-PART the District's Motion.*fn1
Before trial and with the district court's leave, "a party may file and furnish to every other party written requests for the jury instructions it wants the court to give." FED. R. CIV. P. 51(a)(1). "Jury instructions are proper if, when viewed as a whole, they fairly present the applicable legal principles and standards." Czekalski v. LaHood, 589 F.3d 449, 453 (D.C. Cir. 2009) (internal quotation marks and citations omitted). The district court has considerable discretion when crafting instructions, which should be exercised with an aim towards guiding the jury "toward an intelligent understanding of the legal and factual issues involved in [its] search for a proper resolution of the dispute." 9C Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE § 2556 (3d ed. 1995). So long as the instructions chosen are "legally correct," the district court is not required to use "any particular language." Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 556 (D.C. Cir. 1993) (quoting Miller v. Poretsky, 595 F.2d 780, 788 (D.C. Cir. 1978)) (internal quotation marks omitted). Rather, "[i]t is sufficient if the substance of the instruction as given be correct in law, adapted to the issues developed at trial and adequate for guidance of the jury." Heflin v. Silvertstein, 405 F.2d 1075, 1077 (D.C. Cir. 1968).
Through the present motion, the District seeks the Court's imprimatur on three of its intended defenses at trial. In particular, the District asks the Court to instruct the jury on the contours of each defense. Below, the Court addresses each defense in turn.*fn2
A. The "Ministerial or Non-discretionary Investigation" Exception Under the DC-WPA, "[a] supervisor shall not take, or threaten to take, a prohibited personnel action or otherwise retaliate against an employee because of the employee's protected disclosure." D.C. CODE § 1-615.53(a) (2006). Here, the District asks the Court to instruct the jury on the contours of what the Court shall refer to as the "ministerial or non-discretionary investigation" exception to the statutory definition of the term "prohibited personnel action." At the time the underlying conduct at issue in this case transpired, that term was defined as follows:
"Prohibited personnel action" includes but is not limited to: recommended, threatened, or actual termination, demotion, suspension, or reprimand; involuntary transfer, reassignment, or detail; referral for psychiatric or psychological counseling; failure to promote or hire or take other favorable personnel action; or retaliating in any other manner against an employee because that employee makes a protected disclosure or refuses to comply with an illegal order, as those terms are defined in this section.
Id. § 1-615.52(a)(5) (2006). Long after the underlying conduct at issue in this case had concluded, and during the pendency of this action, the District of Columbia Council passed the Whistleblower Protection Amendment Act of 2009 (the "DC-WPAA"), 2010 D.C. Legis. Serv. 18-117 (West), which became effective on March 11, 2010. Among other changes, the DCWPAA amended the definition of the term "prohibited personnel action" to designate the paragraph above as subparagraph (A) and to create a new subparagraph (B) reading as follows:
(B) For purposes of this paragraph, the term:
(i) "Investigation" includes an examination of fitness for duty and excludes any ministerial or non-discretionary factfinding activity necessary to perform the agency's mission.
(ii) "Retaliating" includes conducting or causing to be conducted an investigation of an employee or applicant for employment because of a protected disclosure made by the employee or applicant who is a whistleblower.
D.C. CODE § 1-615.52(a)(5) (2011). In short, by operation of the DC-WPAA, the DC-WPA now provides, in essence, that an "investigation" qualifies as a prohibited personnel action, but excepts from its coverage "any ministerial or non-discretionary factfinding activity necessary to perform the agency's mission." D.C. CODE § 1-615.52(a)(5)(B)(i) (2011). It is this last clause, which came into being only with the passage of the DC-WPAA, that gives form to the "ministerial or non-discretionary investigation" exception.
1. The District Has Failed to Establish that Williams Has "Conceded" the Applicability of the Exception in this Case
The parties sharply dispute whether the "ministerial or non-discretionary investigation" exception should be applied in this case, which everyone agrees involves conduct that transpired several years before the DC-WPAA became effective. But before the parties reach the merits of their dispute, they argue over the threshold question of whether Williams may even be heard to contest the applicability of the exception here because, in the District's opinion, Williams has "conceded" that the DC-WPAA applies to this case. Def.'s Mem. at 2.
The District's argument in this regard, made in passing and without citation to any legal authority, is unavailing. Even the most cursory review of Williams' opposition papers would reveal that she has not conceded the applicability of the DC-WPAA in connection with the pending motion. See Pl.'s Opp'n at 2-5. Accordingly, the Court can only assume that the District's argument is premised on a theory that Williams is somehow judicially estopped from taking a different position than she has in the past. However, the District does not mention the judicial estoppel doctrine in its moving papers, let alone attempt to establish that the Court should exercise its discretion and apply the doctrine here. For example, the District offers no factual or legal basis for concluding that (i) Williams' current litigation position is "clearly inconsistent" with a prior position, (ii) she "succeeded in persuading" the Court to accept her prior inconsistent position, and (iii) she would "derive an unfair advantage" from being allowed to adopt a different position now. New Hampshire v. Maine, 532 U.S. 742, 751-52 (2001).
True, the District briefly cites to a "notice of supplemental authority" that Williams filed in connection with the parties' cross-motions for summary judgment on March 17, 2010, less than a week after the DC-WPAA became effective. See Def.'s Mem. at 2. Therein, Williams made the statement that "the Whistleblower Protection Amendment Act of 2009 applies to this litigation." Pl.'s Notice of Supplemental Authority, ECF No. [84-1], at 1. Admittedly, this broad statement stands in some tension with Williams' more refined position today that some elements of the DC-WPAA-for example, its elimination of the pre-suit notice requirement under D.C. CODE § 12-309-enact procedural changes that may be applied retroactively, while other elements enact substantive changes that cannot be applied retroactively. Indeed, the Court has previously taken note of this tension. See Order (Sept. 1, 2011), ECF No. , at 7. But the history of this litigation has revealed that neither party has harbored any qualms about attempting to lay claim to some of the changes brought about by the DC-WPAA while disregarding others. For its part, the District at one point argued strenuously against the application of the DC-WPAA in this case-specifically, insofar as the DC-WPAA eliminated the pre-suit notice requirement under D.C. CODE § 12-309. In so doing, the District maintained that "[t]he 2009 Amendment does not apply to this [case] which had been pending several years before its enactment." Def.'s Reply to Pl.'s Opp'n to Def.'s Suppl. Mot. for Partial Summ. J., ECF No. , at 2. It is not without some irony that the District's broad statement stands in tension with its position today that at least some of the changes brought about by the DC-WPAA should be applied in this case.
The Court need not belabor the point. Even assuming, arguendo, that Williams' broad statement that the DC-WPAA "applies to this litigation" could be characterized as "clearly inconsistent" with her more refined position today, the District's argument still comes to naught because Williams did not succeed in persuading the Court to accept her broad statement. In fact, in the course of resolving the parties' cross-motions for summary judgment, the Court expressly noted that it did not consider Williams' "notice of supplemental authority," having found that the changes brought about the DC-WPAA were immaterial to the arguments actually raised by the parties. Williams v. Johnson, 701 F. Supp. 2d 1, 12 n.7 (D.D.C. 2010). Simply put, Williams' statement had no effect on the Court's disposition of the issues presented.
The parties did eventually turn their attention to the impact of the DC-WPAA on this case. In particular, the Court granted the District leave to file a supplemental motion for summary judgment addressing, in part, the question of whether the DC-WPAA's elimination of the pre-suit notice requirement under D.C. CODE § 12-309 should apply in this case. In the course of briefing that motion, both sides developed more nuanced approaches to the retroactivity question. See Pl.'s Opp'n to Def.'s Supplemental Mot. for Partial Summ. J., ECF No. ;
Def.'s Reply to Pl.'s Opp'n to Def.'s Supplemental Mot. for Summ. J., ECF No. . More importantly, the Court was clear when it resolved that motion that whether certain changes could be applied in this action depended on "[t]he distinction between substantive and procedural legislation," and applying that distinction, the Court found that the DC-WPAA's elimination of the pre-suit notice requirement was a procedural amendment that should be applied in this case. Williams v. Johnson, __ F. Supp. 2d __, 2011 WL 2519663, at *4 (D.D.C. May 23, 2011). In short, despite the broad statements tendered by the parties in the past, this Court has never been persuaded that the DC-WPAA ...