Fedweek

Allowing federal employees who lose whistleblower retaliation cases at the MSPB a choice of federal courts for their appeals has worked to the employees’ advantage and should be continued, a Senate committee report argues.

The report provides the justification for full Senate approval of HR-2229, which already has passed the House and recently cleared the Senate committee level. It would reinstate and make permanent a pilot program ordered in late 2012, but which expired last November, allowing employees to appeal to their regional federal appeals court rather than only to the Washington, D.C.-based Court of Appeals for the Federal Circuit.

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With exclusive jurisdiction over those cases, that court had issued a string of decisions restrictive of whistleblower rights that were overturned by the same 2012 law creating the pilot program of “all-circuit review.”

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The report says that over 1994-2012, that court “ruled favorably for federal employee whistleblowers on only three out of 243 appeals considered” and since that year has done the same for only one of 31. Under the pilot program other appeals courts heard only six such cases and ruled in favor of the employee in two—and one of contradicted the Federal Circuit’s position on one aspect of whistleblower law, possibly setting up review by the Supreme Court.

The bill, which has bipartisan backing, would apply retroactively to the expiration of the pilot program.