News from the Whitehouse: On September 26, 2014, President Obama signed Pub.L. 113-170, the “All Circuit Review Extension Act”. The new law extends a current pilot program for judicial review of the MSPB decisions in whistleblower reprisal cases by three years.
The All Circuit Review Extension Act is an extension of Section 108 of the Whistleblower Protection Enhancement Act of 2012 (WPEA), which was previously analyzed in this blog. Under Section 108, the Federal Circuit was stripped of its exclusive jurisdiction over appeals from MSPB whistleblower reprisal cases for a 2 year pilot program. During the pilot, employees would also have the option to appeal MSPB decisions in whistleblower reprisal cases to other circuit courts with geographical jurisdiction over the case. The All Circuit Review Extension Act extends all-circuit review window by an extra 3 years. As the legislative history of the All Circuit Review Extension Act (H.R. Rep. 113-519) explains:
“PURPOSE AND SUMMARY
On November 27, 2012, the President signed the Whistleblower Protection Enhancement Act (WPEA) into law (P.L. 112-199). The WPEA contains a two year pilot program allowing for ‘all circuit’ review of appeals of Merit Systems Protection Board decisions. The Federal Circuit had previously had exclusive jurisdiction over such appeals. But the Federal Circuit’s overwhelming record of ruling against whistleblowers–a record that includes a series of questionable interpretations of the law–prompted Congress in the WPEA to create a two-year pilot program during which time appellants may file appeals in any circuit court of competent jurisdiction. That authority is set to expire November 27, 2014. This legislation would extend that temporary authority for an additional three years.
BACKGROUND AND NEED FOR LEGISLATION
Few cases have as of yet been resolved through alternative court venues. It is necessary to extent the duration of the pilot, then, in order to effectively assess its impact. Extending the pilot by three years will provide this Committee and the Congress a better understanding of whether permanent changes to the MSPB appeal process are warranted. “
As previously discussed in this blog, other circuits can differ markedly with the Federal Circuit over how to interpret federal whistleblower protections. Further, the availability of all-circuit review has also freed the MSPB to deviate from Federal Circuit precedent, which has resulted in pro-whistleblower decisions such as Day v. Dept. of Homeland Security.
If you believe that you are being retaliated against because of protected whistleblowing, please feel free to contact Passman & Kaplan for an initial consultation.