Petition for Writ of Certiorari — Thasha A. Boyd, Petitioner v. Department of Veterans Affairs, et al.

1

APPENDIX TABLE OF CONTENTS

Appendix A Order in the United States Court of

Appeals for the Eleventh Circuit (September

8, 2020)

App. 1

Appendix B Order in the United States Court of

Appeals for the Eleventh Circuit (November

17, 2020)..........................

..App. 3

Appendix C 5 U.S.C. § 7703

..App. 5

Fed. R. App. P. 4.................

..App. 9

Fed. R. App. P. 15...............

App. 14

Appendix D The All Circuit Review Act, Public

Law No. 115-195 (July 7, 2018)

App. 17

Appendix E United States Senate, Report No.

115-229 (April 12, 2018)

App. 19

Appendix F United States House of Representa­

tives, Report No. 115-337 (October 2,2017) ....App. 35

App. 1

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 20-90011-J

THASHAA. BOYD,

Petitioner,

versus

U.S. DEPARTMENT OF VETERANS AFFAIRS,

U.S. MERIT SYSTEMS PROTECTION BOARD,

Respondents.

Petition for Permission to Appeal from the

United States District Court for the

Northern District of Georgia

(Filed Sep. 8, 2020)

Before: GRANT, LUCK and LAGOA, Circuit Judges.

BY THE COURT:

Petitioner Thasha A. Boyd’s “Petition for Permis­

sion to Appeal,” in which Boyd seeks to obtain review

of the Merit Systems Protection Board’s November

2017 decision, which became final in December 2017,

is DENIED. We first note that the proper procedure for

seeking review of such a decision is to file a petition for

App. 2

review in the appropriate court of appeals. See Fed. R.

App. R 15; 5 U.S.C. § 7703(b)(1)(B). To the extent Boyd

seeks to petition us for permission to file a petition for

review of the Board’s decision pursuant to 5 U.S.C.

§ 7703(b)(1)(B), and to the extent that decision is reviewable under that provision, her June 2020 petition

was filed well outside the 60-day period for seeking

review of that order and, accordingly, we would lack ju­

risdiction over the petition. See H Brown v. Dir., Office

of Workers’ Compensation Programs, 864 F.2d 120,

123-24 (11th Cir. 1989) (noting that statutory time

limitations for seeking review of agency decisions are

jurisdictional). Thus, Boyd’s petition is denied. All

pending motions are DENIED as moot.

App. 3

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 20-90011-J

THASHAA. BOYD,

Petitioner,

versus

U.S. DEPARTMENT OF VETERANS AFFAIRS,

U.S. MERIT SYSTEMS PROTECTION BOARD,

Respondents.

Petition for Permission to Appeal from the

United States District Court for the

Northern District of Georgia

(Filed Nov. 17, 2020)

Before: GRANT, LUCK and LAGOA, Circuit Judges.

BY THE COURT:

Thasha A. Boyd’s construed motion for reconsider­

ation of our September 8, 2020 order denying her

“Petition for Permission to Appeal” is DENIED. We

originally denied Boyd’s petition after noting that, to

the extent she sought permission to file a petition

for review of the Merit Systems Protection Board’s

App. 4

decision, her June 2020 petition was filed outside the

60-day period for doing so. In our order, we noted that

we would have lacked jurisdiction over Boyd’s un­

timely petition. In Boyd’s construed motion for recon­

sideration of this order, she disputes the jurisdictional

nature of our order denying her petition.1 Regardless

of whether this 60-day period is jurisdictional or a

claims processing rule, the government objected to

Boyd’s untimely petition in its response. Accordingly,

we were required to deny her petition regardless of

whether the 60-day deadline is jurisdictional. See, e.g.,

United States v. Lopez, 562 F.3d 1309, 1312-14 (11th

Cir. 2009) (discussing how, although the time to appeal

in a criminal case is not jurisdictional, this Court will

dismiss such an untimely appeal if the government

objects to the issue).

1 Boyd also appears to argue that the All Circuit Review Act,

Pub. L. No. 115-195, 132 Stat. 1510 (2018), created a special ex­

ception such that the 60-day period does not apply to her. There

is no basis in the statute’s, or the amendment’s, text suggesting

this extraordinary exception.

App. 5

APPENDIX C

5 U.S.C. § 7703

§ 7703. Judicial review of decision of the Merit Sys­

tems Protection Board

Effective: July 7, 2018

(a)

(1) Any employee or applicant for employment

adversely affected or aggrieved by a final order or

decision of the Merit Systems Protection Board

may obtain judicial review of the order or decision.

(2) The Board shall be named respondent in any

proceeding brought pursuant to this subsection,

unless the employee or applicant for employment

seeks review of a final order or decision on the

merits on the underlying personnel action or on a

request for attorney fees, in which case the agency

responsible for taking the personnel action shall

be the respondent.

(b)

(1)

(A) Except as provided in subparagraph B

and paragraph (2) of this subsection, a petition to

review a final order or final decision of the Board

shall be filed in the United States Court of Appeals

for the Federal Circuit. Notwithstanding any

other provision of law, any petition for review must

be filed within 60 days after the date the petitioner

received notice of the final order or decision of the

Board.

App. 6

(B) A petition to review a final order or final

decision of the Board that raises no challenge to

the Board’s disposition of allegations of a prohib­

ited 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 com­

petent 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) Cases of discrimination subject to the provi­

sions of section 7702 of this title shall be filed un­

der section 717(c) of the Civil Rights Act of 1964

(42 U.S.C. 2000e-16(c)), section 15(c) of the Age

Discrimination in Employment Act of 1967 (29

U.S.C. 633a(c)), and section 16(b) of the Fair Labor

Standards Act of 1938, as amended (29 U.S.C.

216(b)), as applicable. Notwithstanding any other

provision of law, any such case filed under any

such section must be filed within 30 days after the

date the individual filing the case received notice

of the judicially reviewable action under such sec­

tion 7702.

(c) In any case filed in the United States Court of Ap­

peals for the Federal Circuit, the court shall review the

record and hold unlawful and set aside any agency ac­

tion, findings, or conclusions found to be—

(1) arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law;

App. 7

(2) obtained without procedures required by law,

rule, or regulation having been followed; or

(3) unsupported by substantial evidence;

except that in the case of discrimination brought

under any section referred to in subsection (b)(2)

of this section, the employee or applicant shall

have the right to have the facts subject to trial de

novo by the reviewing court.

(d)

(1) Except as provided under paragraph (2), this

paragraph shall apply to any review obtained by

the Director of the Office of Personnel Manage­

ment. 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 re­

view in the United States Court of Appeals for the

Federal Circuit 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 di­

rective. If the Director did not intervene in a mat­

ter 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 be­

fore the Board shall have the right to appear in

the proceeding before the Court of Appeals. The

App. 8

granting of the petition for judicial review shall be

at the discretion of the Court of Appeals.

(2) This paragraph shall apply to any review ob­

tained 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)(8), 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 deci­

sion 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 juris­

diction if the Director determines, in the discretion

of the Director, that the Board erred in interpret­

ing a civil service law, rule, or regulation affecting

personnel management and that the Board’s deci­

sion will have a substantial impact on a civil ser­

vice 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 Di­

rector first petitions the Board for a reconsidera­

tion 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 pro­

ceeding before the court of appeals. The granting

of the petition for judicial review shall be at the

discretion of the court of appeals.

App. 9

Fed. R. App. P. 4

Appeal as of Right—When Taken

[Text of subdivision (a) effective until December 1,

2016, absent contrary Congressional action.]

(a) Appeal in a Civil Case.

(1) Time for Filing a Notice of Appeal.

(A) In a civil case, except as provided in

Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of

appeal required by Rule 3 must be filed with

the district clerk within 30 days after entry of

the judgment or order appealed from.

(B) The notice of appeal may be filed by any

party within 60 days after entry of the judg­

ment or order appealed from if one of the par­

ties is:

(i) the United States;

(ii) a United States agency;

(iii) a United States officer or employee

sued in an official capacity; or

(iv) a current or former United States

officer or employee sued in an individual

capacity for an act or omission occurring

in connection with duties performed on

the United States’ behalf—including all

instances in which the United States rep­

resents that person when the judgment

or order is entered or files the appeal for

that person.

App. 10

(C) An appeal from an order granting or

denying an application for a writ of error co­

ram nobis is an appeal in a civil case for pur­

poses of Rule 4(a).

(2) Filing Before Entry of Judgment. A notice of

appeal filed after the court announces a decision

or order—but before the entry of the judgment or

order—is treated as filed on the date of and after

the entry.

(3) Multiple Appeals. If one party timely files a

notice of appeal, any other party may file a notice

of appeal within 14 days after the date when the

first notice was filed, or within the time otherwise

prescribed by this Rule 4(a), whichever period

ends later.

(4) Effect of a Motion on a Notice of Appeal.

(A) If a party timely files in the district court

any of the following motions under the Fed­

eral Rules of Civil Procedure, the time to file

an appeal runs for all parties from the entry

of the order disposing of the last such remain­

ing motion:

(i) for judgment under Rule 50(b);

(ii) to amend or make additional factual

findings under Rule 52(b), whether or not

granting the motion would alter the judg­

ment;

(iii) for attorney’s fees under Rule 54 if

the district court extends the time to ap­

peal under Rule 58;

App. 11

(iv) to alter or amend the judgment un­

der Rule 59;

(v) for a new trial under Rule 59; or

(vi) for relief under Rule 60 if the mo­

tion is filed no later than 28 days after the

judgment is entered.

(B)(i) If a party files a notice of appeal after

the court announces or enters a judgment—

but before it disposes of any motion listed in

Rule 4(a)(4)(A)—the notice becomes effective

to appeal a judgment or order, in whole or in

part, when the order disposing of the last such

remaining motion is entered.

(ii) A party intending to challenge an order

disposing of any motion listed in Rule

4(a)(4)(A), or a judgment’s alteration or

amendment upon such a motion, must file a

notice of appeal, or an amended notice of ap­

peal—in compliance with Rule 3(c)—within

the time prescribed by this Rule measured

from the entry of the order disposing of the

last such remaining motion.

(iii) No additional fee is required to file an

amended notice.

(5) Motion for Extension of Time.

(A) The district court may extend the time to

file a notice of appeal if:

(i) a party so moves no later than 30

days after the time prescribed by this

Rule 4(a) expires; and

App. 12

(ii) regardless of whether its motion is

filed before or during the 30 days after the

time prescribed by this Rule 4(a) expires,

that party shows excusable neglect or

good cause.

(B) A motion filed before the expiration of

the time prescribed in Rule 4(a)(1) or (3) may

be ex parte unless the court requires other­

wise. If the motion is filed after the expiration

of the prescribed time, notice must be given to

the other parties in accordance with local

rules.

(C) No extension under this Rule 4(a)(5)

may exceed 30 days after the prescribed time

or 14 days after the date when the order

granting the motion is entered, whichever is

later.

(6) Reopening the Time to File an Appeal. The

district court may reopen the time to file an appeal

for a period of 14 days after the date when its order

to reopen is entered, but only if all the following

conditions are satisfied:

(A) the court finds that the moving party did

not receive notice under Federal Rule of Civil

Procedure 77(d) of the entry of the judgment

or order sought to be appealed within 21 days

after entry;

(B) the motion is filed within 180 days after

the judgment or order is entered or within 14

days after the moving party receives notice

under Federal Rule of Civil Procedure 77(d) of

the entry, whichever is earlier; and

App. 13

(C) the court finds that no party would be

prejudiced.

(7) Entry Defined.

(A) A judgment or order is entered for pur­

poses of this Rule 4(a):

(i) if Federal Rule of Civil Procedure

58(a) does not require a separate docu­

ment, when the judgment or order is en­

tered in the civil docket under Federal

Rule of Civil Procedure 79(a); or

(ii) if Federal Rule of Civil Procedure

58(a) requires a separate document,

when the judgment or order is entered in

the civil docket under Federal Rule of

Civil Procedure 79(a) and when the ear­

lier of these events occurs:

separate document, or

• 150 days have run from entry of the

judgment or order in the civil docket

under Federal Rule of Civil Proce­

dure 79(a).

(B) A failure to set forth a judgment or order

on a separate document when required by

Federal Rule of Civil Procedure 58(a) does not

affect the validity of an appeal from that judg­

ment or order.

App. 14

Fed. R. App. P. 15

Review or Enforcement of an Agency Order - How

Obtained; Intervention

[Text of subdivision (a) effective until December 1,

2016, absent contrary Congressional action.]

(a) Petition for Review; Joint Petition.

(1) Review of an agency order is commenced by

filing, within the time prescribed by law, a petition

for review with the clerk of a court of appeals au­

thorized to review the agency order. If their inter­

ests make joinder practicable, two or more persons

may join in a petition to the same court to review

the same order.

(2) The petition must:

(A) name each party seeking review either

in the caption or the body of the petition—us­

ing such terms as “et al.” “petitioners,” or “re­

spondents” does not effectively name the

parties;

(B) name the agency as a respondent (even

though not named in the petition, the United

States is a respondent if required by statute);

and

(C) specify the order or part thereof to be re­

viewed.

(3) Form 3 in the Appendix of Forms is a sug­

gested form of a petition for review.

(4) In this rule “agency” includes an agency,

board, commission, or officer; “petition for review”

App. 15

includes a petition to enjoin, suspend, modify, or

otherwise review, or a notice of appeal, whichever

form is indicated by the applicable statute.

(b) Application or Cross-Application to Enforce an

Order; Answer; Default.

(1) An application to enforce an agency order

must be filed with the clerk of a court of appeals

authorized to enforce the order. If a petition is filed

to review an agency order that the court may en­

force, a party opposing the petition may file a

cross-application for enforcement.

(2) Within 21 days after the application for en­

forcement is filed, the respondent must serve on

the applicant an answer to the application and file

it with the clerk. If the respondent fails to answer

in time, the court will enter judgment for the relief

requested.

(3) The application must contain a concise state­

ment of the proceedings in which the order was

entered, the facts upon which venue is based, and

the relief requested.

(c) Service of the Petition or Application. The circuit

clerk must serve a copy of the petition for review, or an

application or cross-application to enforce an agency

order, on each respondent as prescribed by Rule 3(d),

unless a different manner of service is prescribed by

statute. At the time of filing, the petitioner must:

(1) serve, or have served, a copy on each party

admitted to participate in the agency proceedings,

except for the respondents;

App. 16

(2) file with the clerk a list of those so served; and

(3) give the clerk enough copies of the petition or

application to serve each respondent.

(d) Intervention. Unless a statute provides another

method, a person who wants to intervene in a proceed­

ing under this rule must file a motion for leave to in­

tervene with the circuit clerk and serve a copy on all

parties. The motion—or other notice of intervention

authorized by statute—must be filed within 30 days af­

ter the petition for review is filed and must contain a

concise statement of the interest of the moving party

and the grounds for intervention.

(e) Payment of Fees. When filing any separate or joint

petition for review in a court of appeals, the petitioner

must pay the circuit clerk all required fees.

App. 17

APPENDIX D

132 STAT. 1510 PUBLIC LAW 115-195—JULY 7,

2018

An Act

To amend title 5, United States Code, to provide per­

manent authority for judicial review of certain Merit

Systems Protection Board decisions relating to whis­

tleblowers, and for other purposes.

Be it enacted by the Senate and House of Repre­

sentatives of the United States ofAmerica 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

App. 18

Whistleblower Protection Enhancement Act of 2012,

this paragraph” and inserting “This paragraph”.

(c) Retroactive Effective Date.—The amend­

ments made by this section shall take effect as if en­

acted on November 26, 2017.

Approved July 7, 2018.

LEGISLATIVE HISTORY—H.R. 2229:

HOUSE REPORTS: No. 115-337, Pt. 1 (Comm, on

Oversight and Government Re­

form).

SENATE REPORTS: No. 115-229 (Comm, on Home­

land Security and Governmental

Affairs).

CONGRESSIONAL RECORD:

Vol. 163 (2017): Oct. 11, considered and passed

House.

Vol. 164 (2018): June 12, considered and passed

Senate, amended.

June 22, House concurred in

Senate amendment.

App. 19

APPENDIX E

Calendar No. 377

115th Congress

2d Session

}

SENATE

Report

{ 115-229

ALL CIRCUIT REVIEW ACT REPORT

REPORT

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

[SEAL]

April 12, 2018.—Ordered to be printed

79-010

U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 2018

App. 20

COMMITTEE ON HOMELAND SECURITY

AND GOVERNMENTAL AFFAIRS

RON JOHNSON, Wisconsin, Chairman

JOHN McCAIN, Arizona

ROB PORTMAN, Ohio

RAND PAUL, Kentucky

JAMES LANKFORD,

Oklahoma

MICHAEL B. ENZI,

Wyoming

JOHN HOEVEN,

North Dakota

STEVE DAINES,

Montana

CLAIRE McCASKILL,

Missouri

THOMAS R. CARPER,

Delaware

HEIDI HEITKAMP,

North Dakota

GARY C. PETERS,

Michigan

MAGGIE HASSAN,

New Hampshire

KAMALA D. HARRIS,

California

DOUG JONES, Alabama

Christopher R. Hexon, 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

App. 21

Calendar No. 377

115th Congress

2d Session

}

SENATE

{

Report

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

REPORT

[To accompany H.R. 2229]

[Including cost estimate of the

Congressional Budget Office]

The Committee on Homeland Security and Gov­

ernmental 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 favora­

bly thereon with an amendment and recommends that

the bill, as amended, do pass.

CONTENTS

Page

I.

II.

Purpose and Summary

Background and Need for the Legislation

1

2

App. 22

III. Legislative History......................................

IV. Section-by-Section Analysis.......................

V. Evaluation of Regulatory Impact..............

VI. Congressional Budget Office Cost Esti­

mate ...............................................................

VII. Changes in Existing Law Made by the Act,

as Reported...................................................

4

4

4

5

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 Protec­

tion Board (MSPB) regarding whistleblower retalia­

tion complaints to any U.S. Court of Appeals of

competent jurisdiction.

II. Background and the Need for Legislation

In 2012, Congress passed the Whistleblower Pro­

tection 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 pri­

mary 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

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).

App. 23

the Federal Circuit, which has exclusive jurisdiction

over many cases brought under the Whistleblower Pro­

tection Act.”2 While the Civil Service Reform Act of

1978 originally provided review of all Federal em­

ployee claims in any appropriate federal appeals court,

including whistleblower claims, the Federal Courts Im­

provement Act of 1981 granted the Federal Circuit ex­

clusive 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

Congress considered multiple reasons for author­

izing all-circuit review for Federal employee whistle­

blower 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 employ­

ees are denied the most important single procedure

which holds appeals court judges reviewable and ac­

countable.”5 Congress also noted that “a number of

2 Id. at 1-2.

3 Civil Service Reform Act of 1978, Pub. L. No. 95-454, §205,

92 Stat. 1111, 1143 (1978); Federal Courts Improvements Act of

1981, Pub. L. No. 97-164, § 127, 96 Stat. 25, 45 (1982).

4 Whistleblower Protection Enhancement Act, supra note 1,

at § 108.

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

App. 24

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 ap­

pellate review process, including claims under the

False Claims Act, the Resolution Trust Corporation

Completion Act, the Federal Deposit Insurance Corpo­

ration Improvement Act, the Clean Air Act, the Sarbanes-Oxley Act, and the American Recovery and

Reinvestment Act.7 Congress concluded that “the ra­

tionale for the Federal Circuit’s subject matter-based

jurisdiction—the need for specialization in a particular

area of law—does not apply in whistleblower jurispru­

dence.”8

WPEA authorized the all-circuit review for Fed­

eral whistleblower claims for two years. In 2014, before

the expiration, Congress extended the all-circuit re­

view authority for an additional three years.9 Since few

cases had yet to be resolved under the all-circuit re­

view authority of WPEA, Congress extended the

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.

Id.

9 All Circuit Review Extension Act, Pub. L. No. 113-170,128

Stat. 1894 (2014).

App. 25

authority “to effectively assess its impact.”10 That au­

thority expired on November 27, 2017.

WPEA also authorized all-circuit review for peti­

tions for review filed by the Director of the Office of

Personnel Management (OPM) of MSPB decisions re­

garding 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 re­

view of a MSPB decision or order if the OPM Director

determined “the Board erred in interpreting a civil ser­

vice law, rule, or regulation affecting personnel man­

agement and that the Board’s decision will have a

substantial impact on a civil service law, rule, regula­

tion, 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 de­

cision and was denied.13 These petitions for review by

the OPM Director were also transferred to the jurisdic­

tion of the Federal Circuit under the Federal Courts

Improvement Act of 1981.14 WPEA authorized all-cir­

cuit review for the OPM Director to petition for review

10 H. Rep. No. 113-519 (2014).

11 Whistleblower Protection Enhancement Act, supra note 1,

at § 108.

12 Civil Service Reform Act, supra note 4, at § 205.

13 Id.

14 Federal Courts Improvements Act, supra note 4.

App. 26

of a MSPB order or decision regarding a Federal em­

ployee whistleblower retaliation complaint.15

From October 1994 until WPEA’s enactment in

2012, the Federal Circuit ruled favorably for Federal

employee whistleblowers on only three out of 243 ap­

peals considered.16 Between enactment of all-circuit re­

view authority in WPEA in 2012 and March 11, 2018,

the Federal Circuit heard 31 appeals of Federal em­

ployee whistleblowers and ruled favorably for the

whistleblower in just one of those appeals.17 With all­

circuit review authority, other circuits heard six ap­

peals from Federal employee whistleblowers, ruling fa­

vorably 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 whistle­

blower protection laws for Federal employees.

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

15 Whistleblower Protection Enhancement Act, supra note 1,

at § 108.

16 Memorandum from Tom Devine, Government Accounta­

bility Project, on Federal Circuit Whistleblower Decisions Since

Passage of 1994 Amendments (Jan. 30, 2017).

17 Id.

18 Memorandum from Tom Devine, Government Accounta­

bility Project, on All Circuits Whistleblower Decisions Since

WPEA Passage (Aug. 26, 2017).

App. 27

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 Fed­

eral 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 in­

terpretations of the laws.

This Act would permanently authorize the all-cir­

cuit 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 whistle­

blower 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 re­

ferred to the Committee on Homeland Security and

Governmental Affairs on October 16, 2017.

19 Delgado v. Merit Sys. Prot. Bd., 880 F. 3d 913 (7th Cir.

2018).

App. 28

The Committee considered H.R. 2229 at a busi­

ness meeting on February 14, 2018. During the busi­

ness 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 amend­

ment and the legislation as modified by the amend­

ment 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 Protec­

tion 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

App. 29

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 reg­

ulatory impact within the meaning of the rules. The

Committee agrees with the Congressional Budget Of­

fice’s statement that the Act contains no intergovern­

mental 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 Gov­

ernmental 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.

App. 30

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 retro­

actively apply) the authority for federal employees to

appeal Merit Systems Protection Board (MSPB) deci­

sions regarding whistleblower cases in any federal court,

instead of only the U.S. Court of Appeals in Washing­

ton, D.C. Under current law, the authority to file an ap­

peal in any federal court expired in December of 2017.

Using information from the MSPB and the Admin­

istrative 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 adminis­

trative burden of those and other federal agencies. Be­

cause 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 esti­

mates that those costs would not be significant.

Enacting H.R. 2229 could affect direct spending

by agencies that are not funded through annual appro­

priations; therefore, pay-as-you-go procedures apply.

App. 31

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 pri­

vate-sector mandates as defined in the Unfunded Man­

dates 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 sim­

ilar 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):

App. 32

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 Pro­

tection Enhancement Act of 2012, a petition]

A petition to review the final order or final de­

cision 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),

App. 33

(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 Protec­

tion Enhancement Act of 2012, this paragraph]

This paragraph shall apply to any review ob­

tained 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 per­

sonnel management and that the Board’s decision

will have a substantial impact on a civil service

App. 34

law, rule, regulation, or policy directive. If the Di­

rector 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 Di­

rector first petitions the Board for a reconsidera­

tion 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 pro­

ceeding before the court of appeals. The granting

of the petition for judicial review shall be at the

discretion of the court of appeals.

App. 35

APPENDIX F

115th Congress

HOUSE OF

REPRESENTATIVES

1st Session

{

Rept. 115-337

Part 1

ALL CIRCUIT REVIEW ACT

October 2, 2017.—Committed to the Committee

of the Whole House on the State of the Union and

ordered to be printed

Mr. Gowdy, from the Committee on

Oversight and Government Reform,

submitted the following

REPORT

[Including cost estimate of the

Congressional Budget Office]

The Committee on Oversight and Government

Reform, to whom was referred the bill (H.R. 2229) to

amend title 5, United States Code, to provide perma­

nent authority for judicial review of certain Merit

Systems Protection Board decisions relating to whis­

tleblowers, and for other purposes, having considered

the same, report favorably thereon without amend­

ment and recommend that the bill do pass.

App. 36

CONTENTS

Page

Committee Statement and Views

2

Section-by-Section........................

5

Explanation of Amendments......

5

Committee Consideration............

5

Roll Call Votes

5

Correspondence.......................................................

6

Application of Law to the Legislative Branch....

8

Statement of Oversight Findings and Recom­

mendations of the Committee...........................

8

Statement of General Performance Goals and

Objectives.............................................................

8

Duplication of Federal Programs.........................

8

Disclosure of Directed Rule Makings..................

8

Federal Advisory Committee Act..........................

8

Unfunded Mandates Statement...........................

8

Earmark Identification..........................................

9

Committee Estimate...............................................

9

Budget Authority and Congressional Budget Of­

fice Cost Estimate...............................................

9

Changes in Existing Law Made by the Bill, as

Reported............................................................... 10

App. 37

Committee Statement and Views

PURPOSE AND SUMMARY

H.R. 2229, the All Circuit Review Act, makes per­

manent the all circuit review pilot program, which al­

lows whistleblowers to appeal decisions of the Merit

Systems Protection Board (MSPB) to any Federal Cir­

cuit.

BACKGROUND AND NEED FOR LEGISLATION

On November 27, 2012, the Whistleblower Protec­

tion Enhancement Act of 2012 (WPEA) became law.1

This landmark whistleblower law was the first major

update to the Whistleblower Protection Act since 1994.

Among the many changes established by the

WPEA was the creation of a two-year pilot program to

allow the appeal of whistleblower cases from the Merit

Systems Protection Board (MSPB) to any federal cir­

cuit court of appeals.2 Prior to the WPEA, exclusive ju­

risdiction over all appeals from the MSPB resided with

the U.S. Court of Appeals for the Federal Circuit (Fed­

eral Circuit), which was created in 1982, three-and-ahalf years after the Civil Service Reform Act of 1978

(CSRA) established the MSPB.3

1 Whistleblower Prot. Enhancement Act of 2012, Pub. L. No.

112-199,126 Stat. 1465 (2012).

2 Whistleblower Prot. Enhancement Act of 2012, Pub. L. No.

112-199 § 108, 126 Stat. 1465, 1469 (2012).

3 The Federal Courts Improvement Act of 1982 merged the

U.S. Court of Customs and Patent Appeals with the U.S. Court of

Claims to create the U.S. Court of Appeals for the Federal Circuit,

App. 38

Congress has repeatedly criticized both the MSPB

and the Federal Circuit’s interpretation of the whistle­

blower protections implemented by and subsequent to

the CSRA. As part of the groundwork that ultimately

resulted in the Whistleblower Protection Act of 1989

(WPA), the House Committee on Post Office and Civil

Service noted in 1987: “The Special Counsel’s ability to

secure relief for individuals who have been victims of

prohibited personnel practices has been limited be­

cause the MSPB has construed the law relating to the

protection of Federal employees quite narrowly.”4 The

report noted the Federal Circuit provided little better

recourse: “Despite the heavy MSPB caseload, Federal

Circuit judges have a general inexperience with fed­

eral employee case law.”5 Several of the changes and

clarifications in the WPA as ultimately passed were di­

rectly intended to reverse MSPB and Federal Circuit

actions Congress considered inconsistent with the

CSRA.

Five years later, Congress made additional clar­

ifications as part of reauthorizing the MSPB and

the Office of Special Counsel.6 The Senate report

and gave the Federal Circuit jurisdiction over all appeals from the

MSPB except anti-discrimination appeals. Fed. Courts Improve­

ment Act of 1982, Pub. L. No. 97-164 § 127, 96 Stat. 25, 38 (1982);

see also Civil Serv. Reform Act of 1978, Pub. L. No. 95—454, 92

Stat. 1111 (1978).

4 H. Comm, on Post Office & Civ. Serv., Whistleblower

Protection Act of 1987 25, 100th Cong. (1987) (H. Rep. 100274).

5 Id. at 26.

6 Pub. L. No. 103-424, 108 Stat. 4361 (1994).

App. 39

accompanying the 1994 reauthorization noted the Fed­

eral Circuit’s failure to interpret the legislative history

of the WPA correctly.7 The corresponding bill report

from the House Committee on Post Office and Civil

Service, which was reorganized as part of this Commit­

tee the next year, further stated:

[T]he statistical record indicates that the

MSPB and Federal Circuit Court of Appeals

have not been favorable to Federal whistle­

blowers. In the first two years after the Act’s

passage, whistleblowers won approximately

20% of Merit Systems Protection Board deci­

sions on the merits. Since FY 1991, however,

that rate has dropped to 5%, far lower than

analogous statutes with tougher burdens of

proof administered by the Department of La­

bor. Instead of restoring balance, the U.S.

Court of Appeals for the Federal Circuit has

been more hostile than the Board. Since its

1982 creation, in reported decisions employ­

ees have prevailed only twice on the merits

with the whistleblower defense. The commit­

tee received extensive testimony at hearings

that the MSPB and Federal Circuit have lost

credibility with the practicing bar for civil ser­

vice cases. Due to the MSPB’s failure to con­

sistently enforce standards in the Federal

Rules of Procedure or the Federal Rules of

7 S. Comm, on Governmental Affairs, to Authorize Ap­

propriations for the United States Office of Special Coun­

sel, the Merit Systems Protection Board, and for Other

PURPOSES 8, 103rd Cong. (1994) (S. Rep. 103-358).

App. 40

Evidence, the Board has not earned respect as

a fair forum even on procedural grounds.8

The report identified a wide variety of areas where the

MSPB and Federal Circuit had violate [d] the WPA’s

clear mandate [established] through statutory provi­

sions or legislative intent.”9

Although Congress updated the law in 1989 and

1994 in response to erroneous MSPB and Federal Cir­

cuit decisions, the 1994 House report noted: “The com­

mittee recognizes that realistically it is impossible to

overturn destructive precedents as fast as they are is­

sued by the MSPB or Federal Circuit.”10 That predic­

tion proved prescient, as Congress did not make any

substantive clarifications for nearly twenty years re­

garding the WPA. The bill reports accompanying the

WPEA in 2012 made clear this was not due to a lack of

erroneous MSPB and Federal Circuit decisions in the

interim. The Senate Committee on Homeland Security

and Governmental Affairs report stated:

Unfortunately, federal whistleblowers

have seen their protections diminish in recent

years, largely as a result of a series of deci­

sions by the United States Court of Appeals

for the Federal Circuit, which has exclusive

jurisdiction over many cases brought under

the Whistleblower Protection Act (WPA). . . .

8 H. Comm, on Post Office & civ. Serv., Reauthorization of

the Office of Special Counsel 17, 103rd Cong. (1994) (H. Rep.

103-769).

9 Id. at 18.

10 Id.

App. 41

Despite the clear legislative history and the

plain language of the 1994 amendments, the

Federal Circuit and the MSPB have continued

to undermine the WPA’s intended meaning by

imposing limitations on the kinds of disclo­

sures by whistleblowers that are protected

under the WPA.11

This Committee concurred that “the Federal Cir­

cuit has often times misinterpreted Congressional

intent when it comes to whistleblowers.”12 The Com­

mittee’s WPEA bill report noted: “Unfortunately, . . .

the U.S. Court of Appeals for the Federal District

has eroded whistleblower protections over the years

through a series of decisions. This has adversely im­

pacted well-intentioned whistleblowers and led to an

unwillingness by many to step forward.”13 Subsequent

Committee reports noted the Federal Circuit’s “over­

whelming record of ruling against whistleblowers—a

record that included a series of questionable interpre­

tations of the law.”14

This experience since the CSRA, particularly from

1994 to 2012, informed Congress’s decision to establish

the all circuit review pilot program with the WPEA.

11 S. Comm, on Homeland Sec. & Governmental Affairs,

Whistleblower Protection Enhancement Act of 2012 1-2, 4-5

112th Cong. (2012) (S. Rep. 112-155).

12 H. Comm, on Oversight & Gov’t Reform, Whistleblower

Protection Enhancement Act of 2011 6,112th Cong. (2012) (H.

Rep. 112-508).

13 Id. at 6.

14 H. Comm, on Oversight & Gov’t Reform, All Circuit Re­

view Extension Act 2, 113th Cong. (2014) (H. Rep. 113-519).

App. 42

Despite innumerable significant public policy priori­

ties which routinely compete for the attention of poli­

cymakers, Congress has repeatedly sent a consistent

message regarding its intent that the WPA protect fed­

eral employees who blow the whistle. However, relying

on regular clarifying revisions is unrealistic. Despite

thousands of man-hours that may go into bringing par­

ticular legislation to the floor of the House or Senate, a

number of obstacles may preclude enactment into law

in any given Congress. Thus, just as courts rely on the

doctrines of ripeness and exhaustion of remedies to

conserve judicial resources, so too Congress often con­

serves its resources by allowing statutory questions to

play out in the court system. Eliminating the Federal

Circuit’s monopoly on whistleblower cases makes it

possible for more courts to hear these important issues

and for the Supreme Court to consider provisions of

the WPA in the event of a circuit split.

On September 26, 2014, Congress passed the All

Circuit Review Extension Act, introduced by Ranking

Member Elijah Cummings (D-MD) with then-Chairman Darrell Issa (R-CA) and Representatives Blake

Farenthold (R-TX), Gerald Connolly (D-VA), and

Chris Van Hollen (D-MD) as original cosponsors.15 The

bill extended the initial two-year pilot program by

15 All Circuit Review Extension Act, Pub. L. No. 113-170,128

Stat. 1894 (2014).

App. 43

three years, allowing additional time to assess the pilot

program’s impact.16

During a December 2015 hearing to reauthorize

the MSPB, thenMSPB Chairman Susan Grundmann

stated: “The MSPB is not aware of any ‘significant

problems’ resulting from all-circuit review.”17 As of Feb­

ruary 2016, the MSPB indicated there had been six

decisions in whistleblower cases issued by federal

appeals courts other than the Federal Circuit.18 By

February 2017, there had only been 29 such cases,

according to data provided by the MSPB.

LEGISLATIVE HISTORY

On April 28, 2017, Ranking Member Elijah Cum­

mings (D-MD) introduced H.R. 2229, with Representa­

tive Blake Farenthold (R-TX). H.R. 2229 was referred

to the Committee on Oversight and Government Re­

form, as well as the Committee on the Judiciary. The

Committee on Oversight and Government Reform con­

sidered H.R. 2229 at a business meeting on May 2,

2017 and ordered the bill favorably reported by voice

vote.

16 See H. Comm, on Oversight & Gov’t Reform, All Circuit

Review Extension Act, 113th Cong. (2014) (H. Rep. 113-519).

17 Merit Sys. Prot. Bd., Office of Gov’t Ethics, & Office of Spe­

cial Counsel Reauthorization: Hearing before the H. Subcomm. on

Gov’t Operations, 114th Cong. (2015) (Merit Sys. Prot. Bd. re­

sponses to Questions for the Record, at 1).

18 Id.

App. 44

Section-by-Section

Section 1. Short title

This short title is the “All Circuit Review Act.”

Section 2. Judicial review of merit systems protection

board decisions relating to whistleblowers

This section makes permanent the five-year pilot

program allowing all circuit review.

Specifically, subsection (a) allows any petitioner to

appeal to any court of appeals of competent jurisdic­

tion so long as the appeal raises no challenge to a Merit

Systems Protection Board decision other than its dis­

position of reprisal allegations.

Similarly, subsection (b) allows the Director of the

Office of Personnel Management to do the same.

Explanation of Amendments

No amendments to H.R. 2229 were offered or

adopted during Full Committee consideration of the

bill.

Committee Consideration

On May 2, 2017, the Committee met in open ses­

sion and ordered reported favorably the bill, H.R. 2229,

by voice vote, a quorum being present.

App. 45

Roll Call Votes

No roll call votes were requested or conducted dur­

ing Full Committee consideration of H.R. 2229.

Correspondence

ONE HUNDRED FIFTEENTH CONGRESS

Congress of the United States

House of Representatives

COMMITTEE ON THE JUDICIARY

2138 Rayburn House Office Building

Washington, DC 20515-6216

(202) 225-3951

http?//www.house.gov/judiciary

[Names Omitted In Printing]

September 22, 2017

The Honorable Trey Gowdy

Chairman

Committee on Oversight and Government Reform

2157 Rayburn House Office Building

Washington, D.C. 20515

Dear Chairman Gowdy,

I write with respect to HR. 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 con­

sideration.

App. 46

The Judiciary Committee takes this action with

our mutual understanding that by foregoing consider­

ation 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 ap­

propriately consulted and involved as this bill or simi­

lar legislation moves forward so that we may address

any remaining issues in our jurisdiction. Our commit­

tee 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 con­

firming 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,

/s/ Bob Goodlatte

Bob Goodlatte Chairman

cc: The Honorable John Conyers, Jr.

The Honorable Elijah Cummings

The Honorable Paul Ryan, Speaker

The Honorable Thomas Wickham, Jr.,

Parliamentarian

App. 47

ONE HUNDRED FIFTEENTH CONGRESS

Congress of the United States

House of Representatives

COMMITTEE ON OVERSIGHT AND

GOVERNMENT REFORM

2157 Rayburn House Office Building

Washington, DC 20515-6143

Majority (202) 225-5074

Minority (202) 225-5051

http ://www. over sight, house. gov

[Names Omitted In Printing]

September 22, 2017

The Honorable Bob Goodlatte

Chairman, Committee on Armed Services

U.S. 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 leg­

islation 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 fu­

ture jurisdictional claim over the subject matters con­

tained 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

App. 48

Congressional Record during floor consideration, to

memorialize our understanding.

Thank you for your assistance with this matter.

Sincerely,

/s/ Trey Gowdy

Trey Gowdy

cc: The Honorable Paul D. Ryan, Speaker

The Honorable Elijah E. Cummings, Ranking

Member, Committee on Oversight and

Government Reform

The Honorable John Conyers, Jr., Ranking

Member, Committee on the Judiciary

The Honorable Thomas J. Wickham,

Parliamentarian

Application of Law to the Legislative Branch

Section 102(b)(3) of Public Law 104-1 requires a

description of the application of this bill to the legisla­

tive branch where the bill relates to the terms and con­

ditions of employment or access to public services and

accommodations. This bill amends title 5, United

States Code, to provide permanent authority for judi­

cial review of certain Merit Systems Protection Board

decisions relating to whistleblowers. As such, this bill

does not relate to employment or access to public ser­

vices and accommodations.

App. 49

Statement of Oversight Findings and

Recommendations of the Committee

In compliance with clause 3(c)(1) of rule XIII and

clause (2)(b)(l) of rule X of the Rules of the House of

Representatives, the Committee’s oversight findings

and recommendations are reflected in the descriptive

portions of this report.

STATEMENT OF GENERAL PERFORMANCE

GOALS AND OBJECTIVES

In accordance with clause 3(c)(4) of rule XIII of the

Rules of the House of Representatives, the Commit­

tee’s performance goal or objective of this bill is to

amend title 5, United States Code, to provide perma­

nent authority for judicial review of certain Merit

Systems Protection Board decisions relating to whis­

tleblowers.

Duplication of Federal Programs

No provision of this bill establishes or reauthor­

izes a program of the Federal Government known to be

duplicative of another Federal program, a program

that was included in any report from the Government

Accountability Office to Congress pursuant to section

21 of Public Law 111-139, or a program related to a

program identified in the most recent Catalog of Fed­

eral Domestic Assistance.

App. 50

Disclosure of Directed Rule Makings

The Committee estimates that enacting this bill

does not direct the completion of any specific rule ma­

kings within the meaning of section 551 or title 5,

United States Code.

Federal Advisory Committee Act

The Committee finds that the legislation does not

establish or authorize the establishment of an advisory

committee within the definition of Section 5(b) of the

appendix to title 5, United States Code.

Unfunded Mandates Statement

Section 423 of the Congressional Budget and Im­

poundment Control Act (as amended by Section 101(a)(2)

of the Unfunded Mandate Reform Act, RL. 104-4) re­

quires a statement as to whether the provisions of the

reported include unfunded mandates. In compliance with

this requirement, the Committee has included below a

letter received from the Congressional Budget Office.

Earmark Identification

This bill does not include any congressional ear­

marks, limited tax benefits, or limited tariff benefits as

defined in clause 9 of rule XXI.

Committee Estimate

Clause 3(d)(1) of rule XIII of the Rules of the

House of Representatives requires an estimate and a

App. 51

comparison by the Committee of the costs that would

be incurred in carrying out this bill. However, clause

3(d)(2)(B) of that Rule provides that this requirement

does not apply when the Committee has included in its

report a timely submitted cost estimate of the bill pre­

pared by the Director of the Congressional Budget Of­

fice under section 402 of the Congressional Budget Act

of 1974, which the Committee has included below.

Budget Authority and Congressional Budget

Office Cost Estimate

With respect to the requirements of clause 3(c)(2)

of rule XIII of the Rules of the House of Representa­

tives and section 308(a) of the Congressional Budget

Act of 1974 and with respect to requirements of clause

(3)(c)(3) of rule XIII of the Rules of the House of Rep­

resentatives and section 402 of the Congressional

Budget Act of 1974, the Committee has received the

following cost estimate for this bill from the Director of

Congressional Budget Office:

U.S. Congress,

Congressional Budget Office,

Washington, DC, July 18, 2017.

Hon. Trey Gowdy,

Chairman, Committee on Oversight and Government

Reform, House of Representatives, Washington, DC.

Dear Mr. Chairman: The Congressional Budget

Office has prepared the enclosed cost estimate for H.R.

2229, the All Circuit Review Act.

App. 52

If you wish further details on this estimate, we will

be pleased to provide them. The CBO staff contact is

Janani Shankaran.

Sincerely,

Mark P. Hadley,

(For Keith Hall).

Enclosure.

H.R. 2229-All Circuit Review Act

H.R. 2229 would permanently extend the author­

ity for federal employees to appeal a Merit Systems

Protection Board (MSPB) decision regarding whistle­

blower cases at any federal court, instead of only at the

U.S. Court of Appeals in Washington, D.C. Under cur­

rent law, the authority to appeal at any federal court

expires in December 2017.

Based on information from the MSPB and the Ad­

ministrative Office of the U.S. Courts, CBO expects

that allowing appeals to be filed in any federal circuit

on a permanent basis would lead to a small increase in

the administrative burden of those and other federal

agencies. Because many agency offices are located in

the Washington, D.C. area, this would include attorney

travel costs and costs associated with researching re­

gional circuit courts’ rules and procedures. However,

based upon the number of such cases in 2016, CBO

estimates that those costs would not be significant.

Enacting H.R. 2229 could affect direct spending

by agencies not funded through the annual appro­

priations (such as the Tennessee Valley Authority);

App. 53

therefore, pay-as-you-go procedures apply. However,

CBO estimates that the net effects would be insignifi­

cant 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 pri­

vate-sector mandates as defined in the Unfunded Man­

dates Reform Act and would impose no costs on state,

local, or tribal governments.

The CBO staff contact for this estimate is Janani

Shankaran. The estimate was approved by H. Samuel

Papenfuss, Deputy Assistant Director for Budget

Analysis.

Changes in Existing Law Made by the Bill,

as Reported

In compliance with clause 3(e) of rule XIII of the

Rules of the House of Representatives, changes in ex­

isting law made by the bill, as reported, are shown as

follows (existing law proposed to be omitted is enclosed

in black brackets, new matter is printed in italic, and

existing law in which no change is proposed is shown

in roman):

App. 54

TITLE 5, UNITED STATES CODE

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PART III—EMPLOYEES

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SUBPART F—LABOR-MANAGEMENT AND

EMPLOYEE RELATIONS

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CHAPTER 77—APPEALS

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§ 7703. Judicial review of decisions of the Merit

Systems Protection Board

(a)(1) Any employee or applicant for employment

adversely affected or aggrieved by a final order or de­

cision of the Merit Systems Protection Board may ob­

tain judicial review of the order or decision.

(2) The Board shall be named respondent in any

proceeding brought pursuant to this subsection, unless

the employee or applicant for employment seeks re­

view of a final order or decision on the merits on the

underlying personnel action or on a request for attor­

ney fees, in which case the agency responsible for tak­

ing the personnel action shall be the respondent.

(b)(1)(A) Except as provided in subparagraph (B)

and paragraph (2) of this subsection, a petition to re­

view a final order or final decision of the Board shall

be filed in the United States Court of Appeals for the

Federal Circuit. Notwithstanding any other provision

of law, any petition for review shall be filed within 60

App. 55

days after the Board issues notice of the final order or

decision of the Board.

(B) [During the 5-year period beginning on the

effective date of the Whistleblower Protection En­

hancement Act of 2012, a petition] A petition to review

a final order or final decision of the Board 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)(8), or 2302(b)(9) (A)(i), (B), (C), or (D) shall be

filed in the United States Court of Appeals for the Fed­

eral Circuit or any court of appeals of competent juris­

diction. Notwithstanding any other provision of law,

any petition for review shall be filed within 60 days af­

ter the Board issues notice of the final order or decision

of the Board.

(2) Cases of discrimination subject to the provi­

sions of section 7702 of this title shall be filed under

section 717(c) of the Civil Rights Act of 1964 (42 U.S.C.

2000e-16(c)), section 15(c) of the Age Discrimination in

Employment Act of 1967 (29 U.S.C. 633a(c)), and sec­

tion 16(b) of the Fair Labor Standards Act of 1938, as

amended (29 U.S.C. 216(b)), as applicable. Notwith­

standing any other provision of law, any such case filed

under any such section must be filed within 30 days

after the date the individual filing the case received

notice of the judicially reviewable action under such

section 7702.

(c) In any case filed in the United States Court of

Appeals for the Federal Circuit, the court shall review

App. 56

the record and hold unlawful and set aside any agency

action, findings, or conclusions found to be—

(1) arbitrary, capricious, an abuse of discre­

tion, or otherwise not in accordance with law;

(2) obtained without procedures required by

law, rule, or regulation having been followed; or

(3) unsupported by substantial evidence;

except that in the case of discrimination brought under

any section referred to in subsection (b)(2) of this sec­

tion, the employee or applicant shall have the right to

have the facts subject to trial de novo by the reviewing

court.

(d)(1) Except as provided under paragraph (2),

this paragraph shall apply to any review obtained by

the Director of the Office of Personnel Management.

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 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 re­

view 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

App. 57

to the named respondent, the Board and all other par­

ties 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 re­

view shall be at the discretion of the Court of Appeals.

(2) [During the 5-year period beginning on the

effective date of the Whistleblower Protection En­

hancement Act of 2012, this paragraph] This para­

graph 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 allega­

tions of a prohibited personnel practice described in

section 2302(b) other than practices described in sec­

tion 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or (D). The

Director may obtain review of any final order or deci­

sion 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 Direc­

tor 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 im­

pact 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 re­

view 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

App. 58

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 re­

view shall be at the discretion of the court of appeals.

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