The Steering Committee for the Make It Safe Coalition of more than 50 NGOs supporting whistleblower rights applauds yesterday's passage of the All Circuit Review Extension Act (H.R. 4197) by the House Oversight and Government Reform Committee. Primary sponsor and Ranking Member Elijah Cummings (D-Md) introduced the legislation, joined by original co-sponsors Committee Chairman Darrell Issa (R-Calif.), Federal Workforce Subcommittee Chairman Blake Farenthold (R-Texas), Chris Van Hollen (D-Md.) and Gerald Connolly (D-Va.). The measure was approved by voice vote, without dissent.
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.
The House Government Reform Committee deserves credit for bipartisan leadership on its experiment in structural due process reform. 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 0-7 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 a national security "sensitive" loophole cancelling independent appeal rights for potentially any federal position.