For federal employees involved in an adverse job action because of whistleblowing, a hearing in front of the Merit Systems Protection Board (MSPB) may be necessary. If the outcome of that hearing is not favorable, the employee may have to appeal their case to a federal court of appeals.
Before the enactment of the 2012 Whistleblower Protection Enhancement Act, their right of appeal would have been limited to the Court of Appeals for the Federal Circuit. This court, sitting in Washington, D.C., has been particularly unfavorable for most whistleblowing cases involving federal workers.
The 2012 Whistleblower Protection Enhancement Act granted federal employees the right to appeal to any federal court of appeal with jurisdiction, so workers in the Dallas area could file an appeal with the Fifth Circuit here in Texas.
According to Gerry Connolly, the representative who introduced the bill in Congress that would extend the right to appeal to other courts for the next three years, the Federal Circuit ruled against whistleblowers an “astonishing 226 out of 229” times in the last 20 years.
There had been fears that the allowing appeals to other courts would “open the floodgates” of litigation. However, there have only been three cases involving whistleblowing filed in other appeals courts.
Whistleblowing by federal employees is an essential activity, protecting taxpayers from fraud and abuse, and as the Veterans Affairs healthcare scandal has shown, protecting those who rely on essential governmental services.
Allowing broader review by all circuit courts of appeal, the rights of workers will be better protected, preventing the Federal Circuit from highjacking the whistleblower laws and rendering them ineffective.
Source: Govexec.com, “House Passes Bipartisan Bill Extending Whistleblower Protection,” July 17, 2014