Federal Employees may appeal MSPB decisions on whistleblower claims to several U.S. Courts of Appeal.

The All Circuit Review Act, signed into law July 9, 2018, “make(s) permanent the authority to appeal final orders or final decisions of the Merit Systems Protection Board (MSPB) regarding whistleblower retaliation complaints to any U.S. Court of Appeals of competent jurisdiction.” S. Rept. 115-229 – ALL CIRCUIT REVIEW ACT 115th Congress (2017-2018) at Section I.  https://www.congress.gov/congressional-report/115th-congress/senate-report/229/1?overview=closed; Also see House bill summary at https://www.congress.gov/bill/115th-congress/house-bill/2229.

In the past, an employee only could appeal a final MSPB decision to the U.S. Court of Appeals for the Federal Circuit. Congress had multiple reasons for authorizing all-circuit review for Federal employee whistleblower claims, including the low rate of Federal Circuit decisions in favor of the employee.  Senate Report at Section II titled “Background and the Need for Legislation”.

After a pilot program that expired in November 2017, the new law was passed to permit a federal employee to appeal MSPB decisions concerning whistleblower claims to any federal appeals court of competent jurisdiction. There are thirteen U.S. Courts of Appeals, including the U.S. Court of Appeals for the Federal Circuit and the U.S. Court of Appeals for the District of Columbia. The law applies retroactively to November 26, 2017.

Jurisdiction may be complicated if the MSPB heard both a whistle blower claim and a discrimination issue, such as under Title VII, 42 U.S.C. section 2000e-16 or a like discrimination statute. United States District Courts hear Title VII and other discrimination claims. Consult an attorney in any such case. Indeed, consult an attorney in most cases. I give the usual caveats for any case: This blog is education and not legal advice. Each case is different from the other, and can be complicated. See a competent attorney.

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