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[Senate Report 115-229]
[From the U.S. Government Publishing Office]

                                                      Calendar No. 377
115th Congress      }                                   {       Report
                                 SENATE
 2d Session         }                                   {      115-229
_______________________________________________________________________

                                     

                         ALL CIRCUIT REVIEW ACT

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                               H.R. 2229

            TO AMEND TITLE 5, UNITED STATES CODE, TO PROVIDE
           PERMANENT AUTHORITY FOR JUDICIAL REVIEW OF CERTAIN
           MERIT SYSTEMS PROTECTION BOARD DECISIONS RELATING
               TO WHISTLEBLOWERS, AND FOR OTHER PURPOSES

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                 April 12, 2018.--Ordered to be printed

                                   ______

                         U.S. GOVERNMENT PUBLISHING OFFICE 

79-010                         WASHINGTON : 2018 

        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona                 CLAIRE McCASKILL, Missouri
ROB PORTMAN, Ohio                    THOMAS R. CARPER, Delaware
RAND PAUL, Kentucky                  HEIDI HEITKAMP, North Dakota
JAMES LANKFORD, Oklahoma             GARY C. PETERS, Michigan
MICHAEL B. ENZI, Wyoming             MAGGIE HASSAN, New Hampshire
JOHN HOEVEN, North Dakota            KAMALA D. HARRIS, California
STEVE DAINES, Montana                DOUG JONES, Alabama

                  Christopher R. Hixon, Staff Director
                Gabrielle D'Adamo Singer, Chief Counsel
                       Courtney J. Allen, Counsel
               Margaret E. Daum, Minority Staff Director
               Stacia M. Cardille, Minority Chief Counsel
       Charles A. Moskowitz, Minority Senior Legislative Counsel
                 Katherine C. Sybenga, Minority Counsel
                     Laura W. Kilbride, Chief Clerk

                                                      Calendar No. 377
115th Congress      }                                   {       Report
                                 SENATE
 2d Session         }                                   {      115-229

======================================================================

 
                         ALL CIRCUIT REVIEW ACT

                                _______
                                

                 April 12, 2018.--Ordered to be printed

                                _______
                                

 Mr. Johnson, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                        [To accompany H.R. 2229]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (H.R. 2229) to amend 
title 5, United States Code, to provide permanent authority for 
judicial review of certain Merit Systems Protection Board 
decisions relating to whistleblowers, and for other purposes, 
reports favorably thereon with an amendment and recommends that 
the bill, as amended, do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................2
III. Legislative History..............................................4
 IV. Section-by-Section Analysis......................................4
  V. Evaluation of Regulatory Impact..................................4
 VI. Congressional Budget Office Cost Estimate........................5
VII. Changes in Existing Law Made by the Act, as Reported.............6

                         I. Purpose and Summary

    The purpose of H.R. 2229, the All Circuit Review Act, is to 
make permanent the authority 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 of competent jurisdiction.

              II. Background and the Need for Legislation

    In 2012, Congress passed the Whistleblower Protection 
Enhancement Act (WPEA) to ``strengthen the rights of and 
protections for federal whistleblowers so that they can more 
effectively help root out waste, fraud, and abuse in the 
federal government.''\1\ A primary reason for the enactment of 
WPEA was that ``federal whistleblowers have seen their 
protections diminish in recent years, largely as a result of a 
series of decisions by the United States Court of Appeals for 
the Federal Circuit, which has exclusive jurisdiction over many 
cases brought under the Whistleblower Protection Act.''\2\ 
While the Civil Service Reform Act of 1978 originally provided 
review of all Federal employee claims in any appropriate 
federal appeals court, including whistleblower claims, the 
Federal Courts Improvement Act of 1981 granted the Federal 
Circuit exclusive jurisdiction of appeals of MSPB final 
orders.\3\ The WPEA reinstated ``all-circuit review'', 
authorizing Federal employee whistleblowers to file petitions 
for review of the final order or decision of the MSPB in the 
Federal Circuit or in any court of appeals of competent 
jurisdiction.\4\
---------------------------------------------------------------------------
    \1\S. Rep. No. 112-155 at 1 (2012). See also Whistleblower 
Protection Enhancement Act of 2012, Pub. L. No. 112-199, 126 Stat. 1465 
(2012).
    \2\Id. at 1-2.
    \3\Civil Service Reform Act of 1978, Pub. L. No. 95-454, Sec. 205, 
92 Stat. 1111, 1143 (1978); Federal Courts Improvements Act of 1981, 
Pub. L. No. 97-164, Sec. 127, 96 Stat. 25, 45 (1982).
    \4\Whistleblower Protection Enhancement Act, supra note 1, at 
Sec. 108.
---------------------------------------------------------------------------
    Congress considered multiple reasons for authorizing all-
circuit review for Federal employee whistleblower claims in 
WPEA. First, Congress agreed with the argument ``In the Federal 
Circuit no other judges critically review the decisions of the 
Court, no `split in the circuits' can ever occur, and thus, 
federal employees are denied the most important single 
procedure which holds appeals court judges reviewable and 
accountable.''\5\ Congress also noted that ``a number of 
federal statutes already allow cases involving rights and 
protections of federal employees, or involving whistleblowers, 
to appeal to courts of appeals across the country.''\6\ 
Congress further considered that other types of whistleblower 
claims enjoy a multi-circuit appellate review process, 
including claims under the False Claims Act, the Resolution 
Trust Corporation Completion Act, the Federal Deposit Insurance 
Corporation Improvement Act, the Clean Air Act, the Sarbanes-
Oxley Act, and the American Recovery and Reinvestment Act.\7\ 
Congress concluded that ``the rationale for the Federal 
Circuit's subject matter-based jurisdiction--the need for 
specialization in a particular area of law--does not apply in 
whistleblower jurisprudence.''\8\
---------------------------------------------------------------------------
    \5\S. Rep. No. 112-155 at 11 (citing The Federal Employee 
Protection of Disclosures Act: Amendments to the Whistleblower 
Protection Act: Hearing Before the S. Comm. on Governmental Affairs, 
108th Cong. 108-414 (2003) (statement of Stephen Kohn, Chairman, 
National Whistleblower Center)).
    \6\S. Rep. No. 112-155 at 11.
    \7\Id. at 12.
    \8\Id.
---------------------------------------------------------------------------
    WPEA authorized the all-circuit review for Federal 
whistleblower claims for two years. In 2014, before the 
expiration, Congress extended the all-circuit review authority 
for an additional three years.\9\ Since few cases had yet to be 
resolved under the all-circuit review authority of WPEA, 
Congress extended the authority ``to effectively assess its 
impact.''\10\ That authority expired on November 27, 2017.
---------------------------------------------------------------------------
    \9\All Circuit Review Extension Act, Pub. L. No. 113-170, 128 Stat. 
1894 (2014).
    \10\H. Rep. No. 113-519 (2014).
---------------------------------------------------------------------------
    WPEA also authorized all-circuit review for petitions for 
review filed by the Director of the Office of Personnel 
Management (OPM) of MSPB decisions regarding Federal employee 
whistleblower retaliation complaints.\11\ The Civil Service 
Reform Act of 1978 first authorized the OPM Director to 
petition to the U.S. Court of Appeals for the District of 
Columbia for review of a MSPB decision or order if the OPM 
Director determined ``the Board erred in interpreting a civil 
service law, rule, or regulation affecting personnel management 
and that the Board's decision will have a substantial impact on 
a civil service law, rule, regulation, or policy 
directive.''\12\ The OPM Director could only petition for 
review if the OPM Director intervened in the matter when it was 
before MSPB or if the OPM Director petitioned MSPB for 
reconsideration of its decision and was denied.\13\ These 
petitions for review by the OPM Director were also transferred 
to the jurisdiction of the Federal Circuit under the Federal 
Courts Improvement Act of 1981.\14\ WPEA authorized all-circuit 
review for the OPM Director to petition for review of a MSPB 
order or decision regarding a Federal employee whistleblower 
retaliation complaint.\15\
---------------------------------------------------------------------------
    \11\Whistleblower Protection Enhancement Act, supra note 1, at 
Sec. 108.
    \12\Civil Service Reform Act, supra note 4, at Sec. 205.
    \13\Id.
    \14\Federal Courts Improvements Act, supra note 4.
    \15\Whistleblower Protection Enhancement Act, supra note 1, at 
Sec. 108.
---------------------------------------------------------------------------
    From October 1994 until WPEA's enactment in 2012, the 
Federal Circuit ruled favorably for Federal employee 
whistleblowers on only three out of 243 appeals considered.\16\ 
Between enactment of all-circuit review authority in WPEA in 
2012 and March 11, 2018, the Federal Circuit heard 31 appeals 
of Federal employee whistleblowers and ruled favorably for the 
whistleblower in just one of those appeals.\17\ With all-
circuit review authority, other circuits heard six appeals from 
Federal employee whistleblowers, ruling favorably for the 
whistleblower in two of those appeals.\18\ The other circuits' 
rulings under the all-circuit review authority demonstrate that 
there is no need for one court--the Federal Circuit--to 
specialize in whistleblower protection laws for Federal 
employees.
---------------------------------------------------------------------------
    \16\Memorandum from Tom Devine, Government Accountability Project, 
on Federal Circuit Whistleblower Decisions Since Passage of 1994 
Amendments (Jan. 30, 2017).
    \17\Id.
    \18\Memorandum from Tom Devine, Government Accountability Project, 
on All Circuits Whistleblower Decisions Since WPEA Passage (Aug. 26, 
2017).
---------------------------------------------------------------------------
    In one case under all-circuit review authority, the Seventh 
Circuit differed from the Federal Circuit in the interpretation 
of a requirement for appeal under the Whistleblower Protection 
Act.\19\ This opinion by the Seventh Circuit provides a ``split 
in the circuit'' of an interpretation of a statutory 
requirement under Federal whistleblower protection laws. Such a 
``split in the circuit'' was intended to occur with all-circuit 
review authority, allowing courts to critically review each 
other's decisions on Federal employee whistleblower protection 
laws and increase accountability in their interpretations of 
the laws.
---------------------------------------------------------------------------
    \19\Delgado v. Merit Sys. Prot. Bd., 880 F. 3d 913 (7th Cir. 2018).
---------------------------------------------------------------------------
    This Act would permanently authorize the all-circuit review 
authority provided by WPEA for Federal employee whistleblower 
claims. The Act would also permanently authorize the all-
circuit review authority for the OPM Director to petition for 
review of a MSPB final order concerning a Federal employee 
whistleblower retaliation complaint. Although the authority 
expired on November 27, 2017, this Act would apply 
retroactively, as if enacted on November 27, 2017.

                        III. Legislative History

    H.R. 2229 was introduced on April 28, 2017, by 
Representatives Elijah Cummings (D-MD-7) and Blake Farenthold 
(R-TX-27). The Act was passed by the House of Representatives 
on October 11, 2017, by voice vote. The Act was received in the 
Senate and referred to the Committee on Homeland Security and 
Governmental Affairs on October 16, 2017.
    The Committee considered H.R. 2229 at a business meeting on 
February 14, 2018. During the business meeting, an amendment 
offered by Chairman Johnson was adopted. The amendment 
retroactively applied the effective date of the Act to November 
27, 2017, when the authority expired. Both the amendment and 
the legislation as modified by the amendment were passed by 
voice vote en bloc with Senators Johnson, Portman, Paul, 
Lankford, Enzi, Hoeven, Daines, McCaskill, Heitkamp, Peters, 
Hassan, Harris, and Jones present.

        IV. Section-by-Section Analysis of the Act, as Reported

Section 1. Short title

    This section establishes the short title of the Act as the 
``All Circuit Review Act''.

Section 2. Judicial review of Merit Systems Protection Board decisions 
        relating to whistleblowers

    Subsection (a) makes permanent the authority to appeal MSPB 
final orders or final decisions regarding whistleblower 
complaints to any U.S. Court of Appeals of competent 
jurisdiction.
    Subsection (b) makes permanent the authority for the 
Director of the Office of Personnel Management to appeal the 
MSPB final disposition of a whistleblower complaint to a U.S. 
Court of Appeals. The Director can only make such an appeal if 
the Director believes MSPB erred in its interpretation of civil 
service law, rule, regulation, or policy directive, and if the 
Director believes the MSPB disposition will have a substantial 
impact on a civil service law, rule, regulation, or policy 
directive.

                   V. Evaluation of Regulatory Impact

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this Act and determined 
that the Act will have no regulatory impact within the meaning 
of the rules. The Committee agrees with the Congressional 
Budget Office's statement that the Act contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would impose no costs 
on state, local, or tribal governments.

             VI. Congressional Budget Office Cost Estimate

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, February 22, 2018.
Hon. Rob Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2229, the All 
Circuit Review Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Janani 
Shankaran.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

H.R. 2229--All Circuit Review Act

    H.R. 2229 would permanently extend (and retroactively 
apply) the authority for federal employees to appeal Merit 
Systems Protection Board (MSPB) decisions regarding 
whistleblower cases in any federal court, instead of only the 
U.S. Court of Appeals in Washington, D.C. Under current law, 
the authority to file an appeal in any federal court expired in 
December of 2017.
    Using information from the MSPB and the Administrative 
Office of the U.S. Courts, CBO expects that permanently 
allowing appeals to be filed in any federal circuit would lead 
to a small increase in the administrative burden of those and 
other federal agencies. Because many agency offices are located 
in or near Washington, D.C., that would include attorneys' 
travel costs and costs associated with researching regional 
circuit courts' rules and procedures. However, based on the 
number of such cases in recent years, CBO estimates that those 
costs would not be significant.
    Enacting H.R. 2229 could affect direct spending by agencies 
that are not funded through annual appropriations; therefore, 
pay-as-you-go procedures apply. However, CBO estimates that the 
net effects would be insignificant for each year. Enacting the 
bill would not affect revenues.
    CBO estimates that enacting H.R. 2229 would not 
significantly increase net direct spending or on-budget 
deficits in any of the four consecutive 10-year periods 
beginning in 2028.
    H.R. 2229 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    On July 18, 2017, CBO transmitted a cost estimate for H.R. 
2229, the All Circuit Review Act, as ordered reported by the 
House Committee on Oversight and Government Reform on May 2, 
2017. The bills are similar and CBO's estimates of their 
budgetary effects are the same.
    The CBO staff contact for this estimate is Janani 
Shankaran. The estimate was approved by H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.

       VII. Changes in Existing Law Made by the Act, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the Act, as reported, are shown as follows: (existing law 
proposed to be omitted is enclosed in brackets, new matter is 
printed in italic, and existing law in which no change is 
proposed is shown in roman):

UNITED STATES CODE

           *       *       *       *       *       *       *

TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES

           *       *       *       *       *       *       *

PART III--EMPLOYEES

           *       *       *       *       *       *       *

Subpart F--Labor-Management and Employee Relations

           *       *       *       *       *       *       *

CHAPTER 77--APPEALS

           *       *       *       *       *       *       *

SEC. 7703. JUDICIAL REVIEW OF DECISIONS OF THE MERIT SYSTEMS PROTECTION 
                    BOARD

    (a) * * *
    (b) * * *
          (1) * * *
                  (A) * * *
                  (B) [During the 5-year period beginning on 
                the effective date of the Whistleblower 
                Protection Enhancement Act of 2012, a petition] 
                A petition to review the final order or final 
                decision of the Board that raises no challenges 
                to the Board's disposition of allegations of a 
                prohibited personnel practice described in 
                section 2302(b) other than practices described 
                in section 2302(b)(8), or 2302(b)(9)(A)(i), 
                (B), (C), or (D) shall be filed in the United 
                States Court of Appeals for the Federal Circuit 
                or any court of appeals of competent 
                jurisdiction. Notwithstanding any other 
                provision of law, any petition for review shall 
                be filed within 60 days after the Board issues 
                notice of the final order or decision of the 
                Board.
          (2) * * *
    (c) * * *
    (d) * * *
          (1) * * *
          (2) [During the 5-year period beginning on the 
        effective date of the Whistleblower Protection 
        Enhancement Act of 2012, this paragraph] This paragraph 
        shall apply to any review obtained by the Director of 
        the Office of Personnel Management that raises no 
        challenge to the Board's disposition of allegations of 
        a prohibited personnel practice described in section 
        2302(b) other than practices described in section 
        2302(b), or 2302(b)(9)(A)(i), (B), (C), or (D). The 
        Director may obtain review of any final order or 
        decision of the Board by filing, within 60 days after 
        the Board issues notice of the final order or decision 
        of the Board, a petition for judicial review in the 
        United States Court of Appeals for the Federal Circuit 
        or any court of appeals of competent jurisdiction if 
        the Director determines, in the discretion of the 
        Director, that the Board erred in interpreting a civil 
        service law, rule, or regulation affecting personnel 
        management and that the Board's decision will have a 
        substantial impact on a civil service law, rule, 
        regulation, or policy directive. If the Director did 
        not intervene in a matter before the Board, the 
        Director may not petition for review of a Board 
        decision under this section unless the Director first 
        petitions the Board for a reconsideration of its 
        decision, and such petition is denied. In addition to 
        the named respondent, the Board and all other parties 
        to the proceedings before the Board shall have the 
        right to appear in the proceeding before the court of 
        appeals. The granting of the petition for judicial 
        review shall be at the discretion of the court of 
        appeals.

           *       *       *       *       *       *       *

                                  [all]
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