Coalition Applauds Unanimous Congressional Support to Extend Whistleblower Pilot Program

(Washington, DC) – The Steering Committee for the Make It Safe Coalition commends yesterday’s unanimous Senate passage of the All Circuit Review Extension Act (H.R. 4197), which was passed without objection by the House of Representatives in July. The bill, sponsored by Senator John Tester (D-Mt.) with co-sponsors Charles Grassley (R-Iowa) and Claire McCaskill (D-Mo), would extend for three years the right of federal employees who appeal a judgment of the Merit Systems Protection Board (MSPB) to file their appeal in any U.S. Court of Appeals with jurisdiction, instead of limiting them to the U.S. Court of Appeals for the Federal Circuit. In the House, it is sponsored by Representative Elijah Cummings (D-Md), Ranking Member of the House Committee on Oversight & Government Reform, with numerous co-sponsors including Committee Chairman Darrell Issa (R-Ca). The bill will be sent to President Obama for his signature.

The Act would extend for an additional three years the landmark “all circuit review” pilot program in the Whistleblower Protection Enhancement Act (WPEA), unanimously approved by the 112th Congress. The Coalition believes that all circuit review was the WPEA’s most significant structural reform, but the provision only approved the pilot program for two years. Since Congress also required the Government Accountability Office (GAO) to assess the law’s effectiveness after four years, it is crucial that the pilot last long enough to inform the GAO’s work, and give Congress an accurate assessment of its value. Congress will have the data to then decide whether it should be extended permanently.

Congress deserves credit for bipartisan leadership on its experiment in structural due process reform. This all circuit review is a sorely needed provision to ensure that the WPEA is enforced as Congress intended. During its 1982-2012 monopoly, the Federal Circuit rewrote and gutted congressionally-passed whistleblower rights repeatedly, forcing Congress to unanimously renew its original good government mandate three times. Prior to the pilot program, the Federal Circuit had a 3-226 record against whistleblowers for decisions on the merits since October 1994, making it all but impossible for a whistleblower to prevail in court.

Results to date are that the pilot is working as needed and without side effects, such as flooding other courts. In the first year, there were only three whistleblower cases outside of the Federal Circuit. All preliminary rulings enforced new WPEA rights as written, except one case that held the new law was unnecessary because relevant Federal Circuit rulings were wrong before its passage. By contrast, the Federal Circuit has compiled a 0-9 record against whistleblowers for final decisions on the merits since the pilot program began. Another decision last year, Northover v. Archuleta, removed appeal rights for the civil service except for whistleblowing cases, effectively eliminating due process. In that decision, the Federal Circuit approved its largest loophole ever, one that if unchecked will cover the entire merit system – a national security “sensitive” exception cancelling independent appeal rights for potentially any federal position.

The full bill can be viewed here.

The Make It Safe Coalition is a non-partisan network of more than 50 groups whose members pursue a wide variety of missions that span defense, homeland security, doctors and patient advocates, natural disasters, scientific freedom, consumer hazards, and corruption in government contracting and procurement. We are united in the cause of protecting those in the public and private sector who honor their duties to serve and warn the public.

Contact: Tom Devine, Government Accountability Project
Phone: 202.457.0034, ext. 124

Email: [email protected]

Contact: Tim Kauffman, American Federation of Government Employees

Phone: 202.639.6405
Email: [email protected]

Contact: Danielle Brian, Project on Government Oversight

Phone: 202.347.1122

Email: [email protected]

Contact: Keith Wrightson, Public Citizen

Phone: 202.454.5139

Email: [email protected]

Contact: Celia Wexler, Union of Concerned Scientists

Phone: 202.390.5481

Email: [email protected]