Agency whistleblowers who previously had to file cases only in the Washington, D.C.-based appeals court will now have access to courts in their own region, based on a bill that cleared the House on Friday and is headed to President Trump’s desk.
The All Circuit Review Act (H.R. 2229), pursued for years by Rep. Elijah Cummings, D-Md., would make permanent a pilot program allowing whistleblowers to file cases seeking review of Merit Systems Protection Board decisions where they live or work, rather than requiring them all to file in the Federal Court of Appeals in Washington. It would also give the Office of Personnel Management authority to file petitions in any court of appeals with jurisdiction to review MSPB orders.
The cases that can be filed locally may also involve reprisals against employees who made disclosures.
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Friday’s action involved a voice vote in the House to accept a Senate amendment.
Whistleblower advocacy groups were pleased. “Limiting federal employees to the Federal Circuit alone for appeals made it all but impossible for a whistleblower to prevail in court,” said Liz Hempowicz, director of public policy for the Project on Government Oversight. “By creating and now codifying this excellent program, Congress has increased the likelihood that whistleblowers will be made whole.”
Research showed that from 1994 to 2012, the Federal Circuit had a 3-226 record against whistleblowers, POGO said. “The Federal Circuit rewrote and gutted congressionally passed whistleblower rights repeatedly, forcing Congress to renew its original mandate three times.”
Shanna Devine, worker health and safety advocate at Public Citizen’s Congress Watch Division, said, “It is a refreshing change that in this instance, Congress has risen above partisanship by taking positive action to protect our most vulnerable government employees: whistleblowers.” By ending the Federal Appeals court’s monopoly, she added, Congress provided “a greater opportunity for justice. Congress must go further, though, and provide them with access to a jury to challenge retaliation, as reflected in modern private-sector whistleblower laws.”
On Monday, President Trump signed a related bipartisan bill into law, the Whistleblower Protection Coordination Act. Championed by Sen. Chuck Grassley, R-Iowa, it permanently reauthorizes a “Whistleblower Protection Coordinator” at each agency’s Office of Inspector General.
Such positions had existed since 2012 but were subject to reauthorization. The ombudsmen educate employees, contractors and grantees about prohibitions against retaliation for making legitimate disclosures.
Their permanence was welcomed by Office of Special Counsel head Henry Kerner, who said, “By signing this important legislation into law, whistleblowers will now have a dedicated official permanently at each agency to educate the workforce and work with OSC to protect against retaliation. This is an important step to ensure whistleblowers who disclose waste, fraud and abuse know their rights and are protected.”
Tom Devine, legal director for the Government Accountability Project, an advocacy and legal advisory group, was also pleased. GAP issued a statement with the Make It Safe Coalition, saying, “This legislation makes permanent the infrastructure for the Whistleblower Protection Act rights to take root. It also is Iowa’s good government gift to taxpayers. Senator Grassley and Representative [Rod] Blum [R-Iowa] lead the Senate and House Whistleblower Caucuses.”
This story has been updated with information about a related bill that Trump signed.