[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.
____________________