Sponsored by Rep. Elijah Cummings (D-MD), H.R. 2229, the All Circuits Review Act, cleared the House of Representatives today, and is now headed to the President for enactment. The bill originally cleared the House in October 2017, but earlier this month, when it was passed by the Senate, an amendment was made, requiring subsequent House passage.
One of the important changes in the NTEU-supported Whistleblower Protection Enhancement Act of 2012 was the right to appeal final orders or final decisions of the Merit Systems Protection Board (MSPB) regarding whistleblower retaliation complaints to any U.S. Court of Appeals. Before this bill, such appeals could only be filed in the Federal Circuit Court of Appeals. Out of 243 whistleblower appeal cases heard by that court over several years, whistleblower employees only won three cases. A chief reason NTEU pushed hard for all circuit review is that it provides a friendlier employee appeals avenue.
The 2012 legislation also authorized all circuit review for the Director of the Office of Personnel Management to petition for review of an MSPB order or decision regarding a federal employee whistleblower complaint. However, the compromise in the legislation was that the provision had a sunset clause, and all circuit review was only authorized for two years. In 2014, Congress extended the authority for an additional three years. However, it expired on November 27, 2017. Congress has now acted to make all circuit review authority permanent, retroactive to November 26, 2017. The measure is headed to the President for enactment.