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WASHINGTON � Congress may soon eliminate the sole jurisdiction of the U.S. Court of Appeals for the Federal Circuit over whistleblower appeals because of that court’s apparent hostility to whistleblower claims and misinterpretations of the federal whistleblower law. Most people don’t think of the patent-heavy Federal Circuit as a whistleblower appeals court, but appeals under the Whistleblower Protection Act fall under the court’s exclusive subject-matter jurisdiction. The court has been an extraordinarily unsuccessful forum for claims by federal whistleblowers for more than a decade. “There is a feeling in our office that this is an unwinnable forum,” said employment litigator Debra Katz of Washington’s Katz, Banks & Marshall. “There are many of us who won’t even take these cases because there is no real appeal route. I tell clients they have more chance of being struck by lightening than of winning there.” Statistics and scholarly studies support Katz’s “feeling.” A review of all whistleblower decisions by the Federal Circuit from October 1994 to October 2007 showed federal whistleblowers had a record of 2 wins and 183 losses, according to Thomas Devine, legal director of the study’s author, the Government Accountability Project (GAP), a 30-year-old nonprofit, public interest group that advocates on behalf of strong whistleblower protections. But it’s not just the win-loss record that has caught the attention of Congress and advocates, said Devine’s colleague, Adam Miles, legislative director of GAP. “Congress has made it very clear, over and over, that employees are supposed to be protected for any disclosure of wrongdoing,” said Miles. “But the Federal Circuit has carved out so many loopholes and exceptions to the definition of protected disclosure, it’s almost impossible to qualify now.” Devine noted that Congress has twice tightened the language of the federal law in order to make it loophole-proof � in 1985 and 1994, both times in response to Federal Circuit decisions. “It’s extremely unusual for Congress to overturn a court by codifying a new law,” he added. “It has done it twice now with the Federal Circuit and appears ready now to do it a third time.” And, in a related area, if federal employees seek protection for exercising their First Amendment rights by filing so-called Pickering claims in the same administrative and judicial review process used for whistleblower claims, the results are even worse, said labor scholar Paul Secunda of the University of Mississippi School of Law. In the first comprehensive analysis of all Federal Circuit and Merit Systems Protection Board cases involving federal employees’ First Amendment claims, Secunda found that not a single Pickering claim filed by a federal employee against his or her agency has ever been successful on the merits. “The message that federal employees seem to be receiving is that their First Amendment claims will not be treated seriously,” Secunda concluded. Originally passed in 1989, the Whistleblower Protection Act was intended to provide a mechanism for civil service employees to challenge retaliation and disclose waste, fraud and abuse. The act, unlike many other whistleblower provisions, allows employees to seek intervention by an outside independent agency, the Office of Special Counsel; access to an administrative legal proceeding to hear their case at the Merit Systems Protection Board; and, ultimately, access to the Federal Circuit to hear appeals of board decisions. Whistleblower lawyers say as bad as the record at the Federal Circuit is, it is equally bad at the board level. But board members, they suggest, may feel hamstrung by Federal Circuit rulings. Those rulings, they contend, now exclude the most common situations in which whistleblower disclosures are made. Federal whistleblowers will not be protected if their disclosure is made to co-workers, supervisors or others in the chain of command, or those suspected of wrongdoing; if the disclosure is made in the course of doing one’s job; or if the disclosure challenges illegal or improper agency policies. And, in a key burden-of-proof ruling, the court in 1999 held that employees must not only “reasonably believe” their disclosure evidences wrongdoing, as the act states, but also must overcome a presumption that the government “acts in accordance with the law” and prove the stated misconduct with “irrefragable” evidence � undeniable, incontrovertible evidence. Both the House and Senate recently passed similar bills � by veto-proof margins � that would reverse the most egregious circuit rulings, according to GAP and others. Also, the House bill � H.R. 985 � would permit multicircuit review of whistleblower appeals; the Senate bill � S. 274 � would allow multicircuit review for a five-year period. The bills also would reverse a controversial U.S. Supreme Court decision � Garcetti v. Ceballos, 126 S. Ct. 1951 � which held that government employees had no First Amendment protection for disclosures of wrongdoing made in the course of their jobs. The House bill, broader than the Senate measure in some respects, would permit district court jury trials in certain cases. It also would expand whom the law protects, such as national security workers. There is strong support for sending a bill to the president early this year. The court itself is aware of the criticism. Writing last year in a law review foreword, Senior Circuit Judge S. Jay Plager noted the court has been accused of not being “sufficiently supportive of whistleblowers.” But he warned that global solutions, such as restructuring the judicial review process, could lead to larger problems, such as forum-shopping.

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