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All Circuit Review Act gives federal whistleblowers more options

The All Circuit Review Act was signed into law on July 9 after a six-year pilot program. It gives federal employees to appeal Merit Systems Protection Board decisions to any federal appellate court of competent jurisdiction, which means any U.S. court of appeals. In the past, these decisions could only be appealed to the U.S. Court of Appeals for the Federal Circuit in Washington, D.C.

That meant that federal employees from outside the Washington, D.C., area had to deal with traveling to the District and the expenses of D.C. litigation.

This change may be especially powerful for whistleblowers who feel they have suffered retaliation after blowing the whistle or other protected activities. According to the pro-whistleblower group the Make It Safe Coalition, the Federal Circuit Court of Appeals has a strongly anti-whistleblower record. In fact, before the pilot program, the court ruled against the whistleblower in 240 out of 243 cases.

The legal director of the Government Accountability Project cautions that federal whistleblowers will still need jury trials like private-sector whistleblowers receive.

"This is a significant step to improving the chances of whistleblowers to prevail on their claims in court and is cause for celebration," said a spokesperson for the Project On Government Oversight. "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."

An observer from the Office of Special Counsel noted that allowing different courts to rule on the same issues gives the opportunity for robust implementation of the laws protecting whistleblowers. For one thing, having different circuits make rulings could result in "circuit splits" where different appellate courts come to different conclusions. Having a circuit split increases the chance that a case will be heard before the U.S. Supreme Court, so the new law could result in government whistleblowers' cases being heard before the high court.

The All Circuit Review Act is written to apply retroactively to Nov. 26, 2017. Whether you are considering blowing the whistle on wrongdoing you have observed or have a case before the MSPB, this new law will affect any appeals you undertake. You should discuss the change with an attorney who is experienced in federal employment law.

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