President Trump signed the All Circuit Review Act into law this past Monday, making permanent a pilot program established by the Whistleblower Protection Enhancement Act of 2012. This provision allows whistleblowers to appeal decisions of the Merit Systems Protection Board (MSPB) regarding retaliation complaints to any U.S. Court of Appeals.
Before 2012, the U.S. Court of Appeals for the Federal Circuit had the sole jurisdiction in hearing appeals from the MSRB. By expanding this jurisdiction to any U.S. Court of Appeals, whistleblowers are given more options as to where they can appeal their case.
Expanding this jurisdiction is especially important since it brings great convenience to whistleblowers. Before 2012, Whistleblowers seeking appeal outside of the Washington area were burdened with travel expenses and the costs of litigating in D.C. Now whistleblowers can appeal their case to an Appeals court closer to them. This is especially convenient for Federal whistleblowers, 85 percent of which live outside the Washington area, and any other whistleblower who lives far Washington, D.C.
All circuit review of appeals from the MSPB may bring more clarity and lead to a better implementation regarding whistleblower laws. Special Council Henry Kerner of the OSC explained the positive effect the new law will bring when he said it will “ensure more robust implementation of whistleblower protection laws. Differing interpretations may result in ‘circuit splits,’ which make it more likely that the U.S. Supreme Court will take up questions that arise regarding how these important laws are applied.”
“The Federal Circuit rarely rules in favor of the whistleblowers. They may fare better taking their MSPB appeals to other circuits,” said whistleblower attorney Michael D. Kohn.
Currently the MSPB cannot issue final appealable decisions as it does not have a quorum. It needs a quorum of two members to make final decisions and there is only one member. The president recently nominated three new members who await confirmation hearings. As a result, there is a huge backlog of cases. “This law will give whistleblowers who have been waiting in a legal limbo for almost two years a better chance at prevailing on appeal,” Kohn said.
Previous blog posts on the MSPB: