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Say this about the U.S. Court of Appeals for the Federal Circuit: Its decisions don’t seem to be affected by criticism from Congress. In June, Sen. Daniel Akaka, D-Hawaii, launched legislation that, among other things, would end the Federal Circuit’s exclusive jurisdiction over cases dealing with the Whistleblower Protection Act (WPA). The bill, S. 995, is Congress’ latest attempt to wipe out Federal Circuit rulings that have narrowed protections for federal employees who report alleged wrongdoing. “This is the third time Congress has had to re-enact a unanimous good-government mandate thrown out by the Federal Circuit,” said one of the bill’s co-sponsors, Sen. Charles Grassley, R-Iowa, at the time. “This is also three strikes for the Federal Circuit’s monopoly authority to interpret, and repeatedly veto, this law. It is time to end the broken record syndrome.” On Aug. 15, the Federal Circuit issued a decision that reaffirmed some of the rulings that prompted the congressional action in the first place. Meanwhile, the Department of Justice appears to be opposed to the legislation. In Huffman v. Office of Personal Management, Federal Circuit Chief Judge H. Robert Mayer and Judges William Bryson and Timothy Dyk held that the Whistleblower Protection Act does not protect employees who confront their supervisors — as opposed to notifying officials higher in the organization — about the supervisors’ alleged wrongdoing. Dyk wrote for the panel, “If every complaint made to a supervisor concerning an employee’s disagreement with the supervisor’s actions were considered to be a disclosure protected under the WPA, virtually every employee who was disciplined could claim protection of the Act.” The court also ruled that the law does not protect employees such as the appellant — an assistant inspector general at the Office of Personnel Management — whose whistleblowing came about as part of their normal job duties. “The WPA was established to protect employees who go above and beyond the call of duty and report infractions of law that are hidden,” added Dyk. Workers doing their daily tasks did not qualify, according to the ruling. (The decision was not a complete loss for Kenneth Huffman, as the panel remanded the case to the Merit Systems Protection Board for review of another issue.) Akaka’s bill would likely have demanded a different result, given that the bill protects disclosures made “to any person,” including ones made “in the ordinary course of an employee’s duties.” The senator’s approach makes sense to Elaine Kaplan, head of the U.S. Office of Special Counsel, an independent agency that protects federal employees from retaliation. In a statement released after the Huffman decision, Kaplan said that under the court’s current law, a meat inspector with the Department of Agriculture would not be protected against retaliation by his superiors if they were displeased with his reports of serious health and safety violations at a meat-packing plant. “The whole point of the WPA is that government employees, because of their job duties, are in a position to discover misconduct and malfeasance,” added Kaplan. However, there may be too fine a line between heroic whistleblowers and disgruntled employees, according to an argument by the Justice Department opposing the bill. “It will become extremely easy for employees to use whistleblowing as a defense for every adverse action taken by an agency” under the bill, wrote Stuart Schiffer, acting head of the Civil Division. Allowing litigants to bypass the Federal Circuit, Schiffer wrote, “would destroy the uniform interpretation of Federal personnel law and inevitably result in the grant of different rights to different employees depending on their geographic location.” Indeed, Congress created the Federal Circuit in 1982 to remove regional differences in various areas of the law — although the driving force behind the court was to harmonize patent law, not employment law governing federal workers. This month, President George W. Bush’s selection for Civil Division chief, former Alston & Bird litigator Robert McCallum Jr., will replace Schiffer. It’s not clear whether McCallum would change the department’s policy on the Akaka bill. A Democratic staffer on the Senate subcommittee reviewing Akaka’s bill — a panel chaired by Akaka — says changes in the bill are being considered. “We’re going to sit down with some folks … and work out some differences,” says the staffer, who would not elaborate. An identical bill, submitted by Rep. Connie Morella, R-Md., is moving in the House. Asked about the senators’ criticism of the Federal Circuit, Chief Judge Mayer said, “The court does its best to interpret these laws as Congress writes them.” As for the move to strip the court of its exclusive jurisdiction over whistleblower cases, Mayer added, “It is totally up to Congress where to place this jurisdiction.” PROST COASTS Sharon Prost appears to be headed for a quick confirmation as the newest judge on the Federal Circuit. On Aug. 27, Prost enjoyed an easy 30-minute hearing before the Senate Judiciary Committee, where she has worked as Republican counsel since 1993. “I’ve always enjoyed working with you,” committee Chairman Patrick Leahy, D-Vt., told Prost. He added that Prost was “highly respected by senators on both sides of the aisle.” Leahy said he expects to call a vote on Prost’s nomination this week. A positive vote, widely expected given the bipartisan support expressed at the hearing, would put her nomination on the floor of the Senate. At the hearing, Prost answered routine questions from Leahy and Sen. Mike DeWine, R-Ohio. She promised to follow Supreme Court precedent, even if she personally disagreed with it. “My personal views are not relevant” to her judicial decision making, she said. Leahy noted that Prost might someday be called upon to interpret laws she helped write, given her experience at the committee. Prost’s chief sponsor and current boss, Sen. Orrin Hatch, R-Utah, was unable to attend the hearing but sent a strong statement of support via DeWine. “He was quite emotional about Sharon’s nomination,” DeWine said, explaining that Hatch was happy for Prost but would miss her counsel at the committee. Prost also had the backing, in the form of supportive letters, from the executive directors of the American Intellectual Property Law Association and the Intellectual Property Owners Association. After Judge S. Jay Plager took senior status last year, the Federal Circuit Bar Association asked Bush to nominate an experienced trial judge to fill the seat. Bush instead tapped Prost, who has spent her 22-year legal career in federal service — at the Federal Labor Relations Authority, the Department of the Treasury, the National Labor Relations Board and the Senate Labor and Judiciary committees. Prost received a “qualified” rating from the American Bar Association’s Standing Committee on the Federal Judiciary, although a minority of the committee found her to be “not qualified.” No one mentioned the mixed ABA rating at the hearing.

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