WASHINGTON – Today, the Make It Safe Coalition (MISC) praised Congress for passing the All Circuit Review Act, H.R. 2229. On June 22, the House unanimously approved, with retroactive application, this bipartisan legislation introduced by U.S. Rep. Elijah Cummings (D-MD), the Ranking Member of the House Committee on Oversight and Government Reform. The Senate Homeland Security and Governmental Affairs Committee leadership, Senators Ron Johnson (R.-WI) and Claire McCaskill (D.-MO), as well as the Senate and House Whistleblower Protection Caucuses, also played an active role in the bill’s passage.
The All Circuit Review Act makes permanent a Whistleblower Protection Enhancement Act (WPEA) pilot program that gives federal whistleblowers normal appeals rights to judicial circuit courts when appealing administrative rulings by the U.S. Merit Systems Protection Board. Prior to the pilot program, the Federal Circuit Court of Appeals had a monopoly on judicial review. Congress enacted the WPEA and two earlier generations of the same rights in response to repeated hostile Federal Circuit decisions that gutted the statute. Besides rewriting the law, the court was a graveyard for whistleblower appeals, ruling against them in 240 out of 243 decisions prior to the WPEA’s passage. The Federal Circuit has maintained a negative track record of handling whistleblower claims.
As a result, Congress approved a two-year experiment to test normal appellate court access, consistent with the Administrative Procedure Act, as part of the WPEA. Since its passage in 2012, Congress has extended the pilot program twice. A Senate Homeland Security and Governmental Affairs Committee report on the bill, summarized results from the pilot program. The Federal Circuit ruled against whistleblowers in 31 out of 32 decisions on the merits, while whistleblowers won two of six appeals to other circuit courts.
MISC urged Congress to make the pilot program permanent and enact the All Circuit Review Act in a letter to Homeland Security and Governmental Affairs Committee Chairman Ron Johnson and Ranking Member Claire McCaskill. However, Congress did not pass the bill before the pilot officially ended on November 26, 2017. Last weeks’ House vote makes the court access rights retroactive to appeals during the lapse.
Individual MISC members commented below.
Tom Devine, Legal Director of the Government Accountability Project, commended the approval, stating, “With a unanimous bipartisan mandate, Congress has just made permanent the Whistleblower Protection Enhancement Act’s structural cornerstone – normal appellate court access to challenge adverse administrative rulings.” Devine also cautioned, “This reform will be like a house without a foundation, however, until Congress extends judicial access with jury trials to federal whistleblowers for a day in court. Currently nearly all corporate whistleblowers have that right, but federal workers are prisoners of a dysfunctional administrative law system with no quorum to make rulings and a steadily increasing backlog dating to 2014 of over 1000 cases. Justice paralyzed is justice denied. WPA rights will not be credible, until Congress gives federal whistleblowers the same court access as private sector employees. It is unrealistic to expect first class public service from workers with second class rights when they defend the public.”
Shanna Devine, Worker Health and Safety Advocate for Public Citizen, commented, “Passage of the All Circuit Review Act, led by Congressman Elijah Cummings, provides federal whistleblowers with a greater opportunity for justice by permanently ending the Federal Circuit’s monopoly on appeals. Congress must go further, though, and provide them with access to a jury to challenge retaliation, as reflected in modern private sector whistleblower laws.”
Liz Hempowicz, Director of Public Policy at the Project On Government Oversight, added, “This is a significant step to improving the chances of whistleblowers to prevail on their claims in court, and is cause for celebration. However, it is imperative that Congress continue to act to give whistleblowers access to jury trials and to strengthen whistleblower protections for those in the Intelligence Community and the military.
In a June 19 statement, MISC also praised Congress for passing the Whistleblower Protection Coordination Act, which makes permanent a pilot program requiring all Offices of Inspectors General to have whistleblower protection coordinators to provide guidance and counseling on rights and responsibilities of the Whistleblower Protection Act (WPA). These developments reflect leadership of the congressional Whistleblower Protection Caucuses, and Congress’ longstanding bipartisan mandate to protect the brave employees who disclose government wrongdoing. President Donald Trump should sign these measures without delay.