[Congressional Record Volume 163, Number 163 (Wednesday, October 11, 2017)]
[House]
[Pages H7951-H7952]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         ALL CIRCUIT REVIEW ACT

  Mr. RUSSELL. Mr. Speaker, I move to suspend the rules and pass 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.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 2229

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``All Circuit Review Act''.

     SEC. 2. JUDICIAL REVIEW OF MERIT SYSTEMS PROTECTION BOARD 
                   DECISIONS RELATING TO WHISTLEBLOWERS.

       (a) In General.--Section 7703(b)(1)(B) of title 5, United 
     States Code, is amended by striking ``During the 5-year 
     period beginning on the effective date of the Whistleblower 
     Protection Enhancement Act of 2012, a petition'' and 
     inserting ``A petition''.
       (b) Director Review.--Section 7703(d)(2) of such title is 
     amended by striking ``During the 5-year period beginning on 
     the effective date of the Whistleblower Protection 
     Enhancement Act of 2012, this paragraph'' and inserting 
     ``This paragraph''.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Oklahoma (Mr. Russell) and the gentlewoman from the District of 
Columbia (Ms. Norton) each will control 20 minutes.
  The Chair recognizes the gentleman from Oklahoma.


                             General Leave

  Mr. RUSSELL. Mr. Speaker, I ask unanimous consent that all Members 
have 5 legislative days to revise and extend their remarks and include 
extraneous material on the bill under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Oklahoma?
  There was no objection.
  Mr. RUSSELL. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I speak in support of H.R. 2229, the All Circuit Review 
Act, which Ranking Member Cummings of Maryland and Mr. Farenthold of 
Texas introduced earlier this year. It is critical that we guarantee 
whistleblowers have access to fair and efficient reviews of their 
claims of retaliation.
  Between 1982 and 2012, whistleblowers could only appeal retaliation 
rulings made against them by the Merit Systems Protection Board, or the 
MSPB, to the Federal circuit. That monopoly led to the Federal circuit 
shaping key interpretations of whistleblower protection law without a 
check by any of the other circuit courts.
  In 2012, to the wide acclaim of the whistleblower community, the 
Whistleblower Protection Enhancement Act ended the Federal circuit 
court's monopoly over whistleblower retaliation appeals. The result, as 
expected, was better case law and more expeditious appeals.
  As a pilot program, that expansion was set to expire 3 years after 
enactment. In 2014, Congress acted to extend the program until November 
of this year. Now, this highly effective program will expire next month 
unless it is renewed. The whistleblower community has benefited 
tremendously from the pilot program. There is no good argument against 
making this permanent.
  Critics had feared that expanding jurisdiction over the MSPB appeals 
would lead to a torrent of cases for those circuits, swamping dockets 
across the Nation. Those fears have proved to be unfounded. Instead, 
the whistleblower community has benefited from other circuits having an 
opportunity to interpret Federal whistleblower case law.
  H.R. 2229 makes the all circuit expansion permanent, ensuring the 
benefits of the pilot program continue. This bipartisan initiative will 
put the question of appeal jurisdiction for whistleblower retaliation 
cases to rest once and for all.
  Mr. Speaker, I urge my colleagues to support this bill, and I reserve 
the balance of my time.

                                         House of Representatives,


                                   Committee on the Judiciary,

                               Washington, DC, September 22, 2017.
     Hon. Trey Gowdy,
     Chairman, Committee on Oversight and Government Reform, 
         Washington, DC.
       Dear Chairman Gowdy: I write with respect to H.R. 2229, the 
     ``All Circuit Review Act.'' As a result of your having 
     consulted with us on provisions within H.R. 2229 that fall 
     within the Rule X jurisdiction of the Committee on the 
     Judiciary, I forego any further consideration of this bill so 
     that it may proceed expeditiously to the House floor for 
     consideration.
       The Judiciary Committee takes this action with our mutual 
     understanding that by foregoing consideration of H.R. 2229 at 
     this time, we do not waive any jurisdiction over subject 
     matter contained in this or similar legislation and that our 
     committee will be appropriately consulted and involved as 
     this bill or similar legislation moves forward so that we may 
     address any remaining issues in our jurisdiction. Our 
     committee also reserves the right to seek appointment of an 
     appropriate number of conferees to any House-Senate 
     conference involving this or similar legislation, and asks 
     that you support any such request.
       I would appreciate a response to this letter confirming 
     this understanding with respect to H.R. 2229 and would ask 
     that a copy of our exchange of letters on this matter be 
     included in the Congressional Record during floor 
     consideration of H.R. 2229.
           Sincerely,
                                                    Bob Goodlatte,
     Chairman.
                                  ____

         House of Representatives, Committee on Oversight and 
           Government Reform,
                               Washington, DC, September 22, 2017.
     Hon. Bob Goodlatte,
     Chairman, Committee on the Judiciary,
     House of Representatives.
       Dear Mr. Chairman: Thank you for your letter regarding H.R. 
     2229, the All Circuit Review Act. As you noted, certain 
     provisions of the bill fall within the jurisdiction of the 
     Committee on the Judiciary. I appreciate your willingness to 
     forego action on the bill in the interest of expediting this 
     legislation for floor consideration. I agree that foregoing 
     consideration of the bill in no way diminishes or alters the 
     jurisdiction of the Committee on the Judiciary with respect 
     to the appointment of conferees or to any future 
     jurisdictional claim over the subject matters contained in 
     the bill or any similar legislation.
       I will include a copy of our letter exchange on H.R. 2229 
     in the bill report filed by the Committee on Oversight and 
     Government Reform, as well as in the Congressional Record 
     during floor consideration, to memorialize our understanding.
       Thank you for your assistance with this matter.
           Sincerely,
                                                       Trey Gowdy.

  Ms. NORTON. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I rise in strong support of the All Circuit Review Act.
  This week the House is considering several bills to strengthen 
protections for whistleblowers. This is a bipartisan bill introduced by 
Oversight and Government Reform Committee Ranking Member Cummings and 
Representative Blake Farenthold.
  This bill would help level the playing field for whistleblowers by 
making permanent a pilot program that allows

[[Page H7952]]

Federal whistleblowers to file appeals in courts where they work or 
live rather than in the Federal Circuit Court of Appeals.
  The Federal circuit has a terrible track record on whistleblower 
cases. Allowing other courts around the country to hear whistleblower 
cases will provide a check on the monopoly the Federal circuit has held 
for many years.
  The bill would also authorize the Office of Personnel Management to 
appeal a decision of the Merit Systems Protection Board to any appeals 
court with jurisdiction.
  This bill was listed on the Project On Government Oversight's list of 
legislative reforms Congress should enact in 2017. Protecting 
whistleblowers is not a partisan issue. It is a patriotic issue. Mr. 
Speaker, I hope my colleagues will support this bipartisan legislation.
  Mr. Speaker, I reserve the balance of my time.
  Mr. RUSSELL. Mr. Speaker, I reserve the balance of my time.
  Ms. NORTON. Mr. Speaker, I yield such time as he may consume to the 
gentleman from Maryland (Mr. Cummings), ranking member of the full 
Oversight and Government Reform Committee.
  Mr. CUMMINGS. Mr. Speaker, I want to thank the gentlewoman for 
yielding.
  I introduced the All Circuit Review Act, Mr. Speaker, to send a clear 
message to all Federal employees who blow the whistle on wrongdoing 
that we here in Congress have their backs.
  This bill would give Federal employees who face retaliation for 
blowing the whistle a more equitable playing field when they challenge 
that retaliation in court. Under the bill, whistleblowers could file 
appeals in the jurisdictions where they work or live, rather than 
having to file appeals in the Federal Circuit Court of Appeals in 
Washington, D.C. Whistleblowers who live outside of Washington, D.C., 
should have the same opportunities as those who live in Washington.
  I want to thank Representative Blake Farenthold for cosponsoring this 
bill with me. Representative Farenthold has been a steadfast supporter 
of this basic due process right for Federal employees.
  The bill we are considering today makes permanent a pilot provision 
that was included in the Whistleblower Protection Enhancement Act, 
which was signed into law in 2012. That pilot provision will expire in 
November if we do not send this bill to the President before then.
  Without this bill, whistleblowers could appeal a decision of the 
Merit Systems Protection Board only to the U.S. Court of Appeals for 
the Federal Circuit. The Federal circuit has historically been overly 
restrictive of whistleblower rights.
  According to the Merit Systems Protection Board, 29 cases have been 
appealed to courts other than the Federal circuit since 2012. The 
Project On Government Oversight sent a letter to the Oversight and 
Government Reform Committee on May 2, 2017, in strong support of this 
bill. Executive Director Danielle Brian wrote as follows: ``The pilot 
program has been a success. It has not resulted in a flood of 
whistleblower appeals as opponents of the program asserted it would do, 
and it allows for potential circuit splits, which encourage sister 
circuits to review the laws and allows for possible Supreme Court 
review. It is working exactly as intended and should be made permanent 
before it expires in November 2017.''
  The bill was approved by the Oversight and Government Reform 
Committee without opposition in May. Two years ago, Congress approved 
an extension of the All Circuit Review Extension Act pilot program in 
2014 without a single negative vote.
  Mr. Speaker, I urge my colleagues to support the whistleblower bill.
  Mr. RUSSELL. Mr. Speaker, I reserve the balance of my time.
  Ms. NORTON. Mr. Speaker, I have no further speakers, and I yield back 
the balance of my time.
  Mr. RUSSELL. Mr. Speaker, I wish to thank Chairman Gowdy for his 
support of this legislation, and for the hard work of Ranking Member 
Cummings of Maryland and Mr. Farenthold of Texas for all that they have 
done to bring this needed bill to the floor.
  Mr. Speaker, I urge adoption of the bill, and I yield back the 
balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Oklahoma (Mr. Russell) that the House suspend the rules 
and pass the bill, H.R. 2229.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the bill was passed.
  A motion to reconsider was laid on the table.

                          ____________________