Federal whistleblowers will have more options when they lose retaliation claims before the Merit Systems Protection Board under legislation President Donald Trump signed July 9.
The All Circuit Review Act (H.R. 2229) allows whistleblowers employed by the federal government to appeal to circuit courts other than the U.S. Court of Appeals for the Federal Circuit. Whistleblower groups have long pushed for MSPB rulings to be reviewed by more federal appeals courts so that whistleblowers have more appeal options. There are 12 circuits nationwide, apart from the Federal Circuit.
The new law “is really significant for federal whistleblowers,” Elizabeth Hempowicz , director of public policy for the Project on Government Oversight, told Bloomberg Law July 10.
Most federal workers don’t work in the Washington metropolitan area, so the measure “eases the burden these employees may face in the arduous appeals process,” she said. About 85 percent of federal employees work outside the Washington area.
The new law also increases the possibility of circuit splits on legal matters affecting federal whistleblowers, Hempowicz said. This means whistleblowers will have the option of appealing differences in interpretation to the U.S. Supreme Court, she said.
The White House didn’t respond July 10 to requests for comment.
Ensuring Options Aren’t `Rolled Back’
The Whistle-Blower Protection Enhancement Act established a two-year program, beginning in 2012, that allowed whistleblower appeals in all circuits. Legislation signed by President Barack Obama in 2014 extended all-circuit review of whistleblower appeals until November 2017. The new law is retroactive to November 2017.
“This law won’t necessarily change the lay of the land for whistleblowers” because of the earlier laws, Hempowicz said. “But it ensures that this important geographical extension of appeals rights isn’t rolled back,” she said.
The Senate passed the All Circuit Review Act June 13, and the House followed suit on June 22, sending the measure to Trump.