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The U.S. Court of Appeals for the Federal Circuit is the exclusive home to appeals of most cases brought by federal government whistleblowers. But maybe not for long. Sen. Daniel Akaka, D-Hawaii, is expected to introduce legislation this week that could dilute the court’s authority over the Whistleblower Protection Act, allowing appeals of such cases to be heard in circuits across the country. Late last year, Akaka offered a bill to counteract recent Federal Circuit decisions reining in the whistleblower act. It never came up for a vote. The new bill would include most of the old bill, S.3190, and add the provision allowing a choice for circuit review. It’s too early to see what the new bill’s chances are for passage, but it has some key supporters. Akaka will likely be the new chairman of the Senate subcommittee overseeing federal services, and the bill is expected to be co-sponsored by Sens. Charles Grassley, R-Iowa, and Carl Levin, D-Mich. Moreover, in recent years Congress has been particularly supportive of federal workers who reveal wrongdoing at their agencies. The 1989 Whistleblower Protection Act and its 1994 amendments passed unanimously through both houses. The act is designed to protect employees who report alleged wrongdoing from retaliation by supervisors. Whistleblowers can challenge alleged retaliatory actions at the Merit Systems Protection Board, over which the Federal Circuit has exclusive jurisdiction. “However,” Sen. Akaka said last year, “in several cases the Federal Circuit has determined that disclosures made to supervisors, to alleged wrongdoers, or as part of an employee’s normal job duties are not protected, thus undermining one of the cornerstones of out nation’s good government laws.” Among the decisions to which Akaka apparently refers is 1999′s LaChance v. White. In that case, Chief Judge Robert Mayer and Judges Pauline Newman and Alan Lourie held that a whistleblower’s disclosure was not protected unless he had “irrefragable proof” of wrongdoing. Doug Hartnett, a lawyer with the Washington, D.C.-based Government Accountability Project, argues that the Whistleblower Protection Act requires that employees be protected as long as they “reasonably believed” there was wrongdoing. The project, which represents whistleblowers, was an amicus in LaChance, and has lobbied for Akaka’s measures. A Democratic staffer working on the new bill insists it is not an attempt at forum shopping. “It’s giving litigants an additional venue,” says the staffer, pointing out that litigants would be able to choose between the Federal Circuit and their local circuit court. The staffer adds that many whistleblowers don’t live in the Washington area, where the Federal Circuit sits 11 months of the year. (The judges usually hold court in another circuit one month of the year.) Opposition to the measure could come from the Justice Department, which represents the agencies against whistleblowers. DOJ spokespeople could not be reached to say whether the attorney general would oppose the bill. PROST’S POST It’s official: President George W. Bush on May 21 nominated Sharon Prost, Republican chief counsel to the Senate Judiciary Committee, for a seat on the U.S. Court of Appeals for the Federal Circuit. When her name first surfaced in April as Bush’s likely choice to replace Senior Judge S. Jay Plager, Prost looked to have an easy confirmation. Her most ardent supporter was the judiciary panel chairman, Utah Republican Sen. Orrin Hatch. But in the wake of Vermont Sen. James Jeffords’ defection from the GOP last month, Hatch will have to hand the keys to the committee to Sen. Patrick Leahy, D-Vt. The Democrats’ takeover may very well slow down all of Bush’s judicial nominations, but it still seems unlikely the power shift will derail Prost’s nomination to a court that handles largely apolitical issues surrounding patent law and federal labor, contract, and international trade disputes. Randall Rader, another former Hatch aide, was confirmed twice by Democrat-controlled Senates after appointments by Republican presidents, in 1988 for a seat on the U.S. Court of Federal Claims and in 1990 for his current seat on the Federal Circuit. Prost was not the choice of the Federal Circuit Bar Association, which in April asked Bush to name an experienced trial judge to the Federal Circuit. But Clarence Kipps, a member of the bar association’s judicial selection committee, says he doesn’t expect the group to lobby against Prost. “She doesn’t have what we want,” concedes Kipps, a partner in D.C.’s Miller & Chevalier. “But she’s regarded as being bright and legally competent.” Kipps adds that the committee is seeking an opportunity to interview Prost, something it has done with other Federal Circuit nominees. Makan Delrahim, Republican staff director at the judiciary committee, responds, “You don’t necessarily have to be a trial judge to be an excellent appeals judge.” Delrahim, who has worked with Prost for three years, points out that Supreme Court Justice Stephen Breyer had Prost’s job — Senate Judiciary chief counsel — when President Jimmy Carter nominated him to the 1st Circuit. In fact, Justice Sandra Day O’Connor is the only member of the high court to have trial judge experience. At the Federal Circuit, only two members — Rader and Chief Judge Robert Mayer — have experience as trial judges. Prost, 50, is a 1979 graduate of American University’s Washington College of Law. She also has a master’s in tax law and an M.B.A. from George Washington University. Prost’s legal career includes three years as a trial attorney at the Federal Labor Relations Authority, a year at the chief counsel’s office at the Treasury Department, and five years as associate solicitor at the National Labor Relations Board. In 1989, she went to work for Hatch at the Senate Labor Committee, moving over to Judiciary in 1993. While Prost does not have experience practicing patent law, Delrahim points out that she worked on a number of patent bills handled by the judiciary committee. These include the Patent Fee Integrity and Innovation Protection Act of 1999. Prost is also picking up endorsements from the American Intellectual Property Law Association and the Intellectual Property Owners Association. She would become the fourth woman to sit on the 19-year-old court and the second on the current bench, along with Judge Pauline Newman. BY THE NUMBERS If the Akaka bill on whistleblower appeals were to pass, the caseload at the Federal Circuit would likely drop a little bit, adding to a trend. At the Federal Circuit Bar Association’s recent conference in White Sulphur Springs, W.Va., Chief Judge Robert Mayer said the court’s caseload already had dropped 2 percent in the last fiscal year. In the 12-month period ending Sept. 30, 2000, there were 1,509 new filings at the court. That was down from 1,543 the year before, but it’s a 60 percent increase from the court’s first year, 1982-83. Appeals from the Merit Systems Protection Board led the way with 501, but that was down from 523 last year. Appeals from district courts, the Court of Veterans Claims and the Federal Claims Court all fell off slightly. Likewise, the smattering of cases from the Board of Contract Appeals Department of Veterans Affairs and the International Trade Commission dropped from a total of 55 to 49. Appeals from the Court of International Trade stayed the same, at 43. A few areas showed an increase. Appeals from the Patent and Trademark Office rose from 69 to 91, and appeals from the Senate Select Committee on Ethics increased from none to three. Mayer added that the court disposed of 1,496 cases last year. Of those, 780 were on the merits, including 234 precedential opinions.

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