H.R. 2229 provides permanent authority for judicial review of certain Merit Systems Protection Board (MSPB) decisions relating to whistleblowers. Specifically, the legislation makes permanent the all circuit review pilot program, which allows whistleblowers to appeal decisions of the MSPB to any Federal Circuit.
Among the provisions of the Whistleblower Protection Enhancement Act of 2012 (WPEA), which became law on November 27, 2012, a 2-year pilot program was established to allow the appeal of whistleblower cases from the Merit Systems Protection Board to any federal circuit court of appeals. Prior to the WPEA, exclusive jurisdiction over all appeals from the MSPB resided with the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), which was created in 1982, three-and-a-half years after the Civil Service Reform Act of 1978 (CSRA) established the MSPB.
Although Congress updated the law in 1989 and 1994 in response to erroneous MSPB and Federal Circuit decisions, the 1994 House report noted: ‘‘The committee recognizes that realistically it is impossible to overturn destructive precedents as fast as they are issued by the MSPB or Federal Circuit.’’ According to the Committee, this has adversely impacted well-intentioned whistleblowers and led to an unwillingness by many to step forward.
This experience since the CSRA, particularly from 1994 to 2012, informed Congress’s decision to establish the all circuit review pilot program with the WPEA. On September 26, 2014, Congress passed the All Circuit Review Extension Act, which extended the initial two-year pilot program by three years, allowing additional time to assess the pilot program’s impact. According to the Committee, eliminating the Federal Circuit’s monopoly on whistleblower cases makes it possible for more courts to hear these important issues and for the Supreme Court to consider provisions of the WPA in the event of a circuit split.
