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Claims Appealable Through the Federal Circuit

The U.S. Court of Appeals for the Federal Circuit

Contents




Civil service matters, especially pay and retirement money disputes (similar to tax matters) comprise between a third and 60% of the Federal Circuit's docket each year, but very few published decisions. These judges are known for their patent expertise, and also respected for their tax and foreign trade decisions involving corporate litigants. The private employment lawyers who practice before the Federal Circuit usually put forth their best efforts in fee disputes. Unlike other U.S. Courts of Appeal, the Federal Circuit hears no criminal cases, which might account for its traditional coolness toward whistleblowers. Only 3 of the current Circuit Judges (and 1 Senior Judge) have ever prosecuted criminals (other than in tax cases). Thus, most are unfamiliar with criminal investigations and prosecutions, which often start from tips or other whistleblowing. Plus, none was ever a federal District Judge (even though this court reviews District Judges' handling of patent and some contract cases). Thus, they all also lack hands-on experience with civil fraud cases, federal employee negligence cases and cases involving retaliation against criminal and EEO witnesses. The Federal Circuit is also the only federal appellate court without a pro bono program, which requires private attorneys privileged to practice before it to accept some free cases. Other courts find this assists judges by making poor peoples' claims clearer and thus allow fairer treatment. This court disagrees by nonaction. Georgetown Law School and Emory University Law School make Federal Circuit opinions available online.

Office of Special Counsel

OSC receives claims from whistleblowers that they have suffered reprisals. As its website explains, it can also receive allegations of fraud, waste or abuse within the federal government, but must refer them back to the affected agency for investigation. Employees of the FBI, CIA, DIA, NSA, GAO and any agency excluded by the President remain outside OSC jurisdiction; employees of government corporations (such as the Postal Service) are covered only to a limited extent. In theory, a covered employee or former employee of a covered agency can file a complaint with OSC at any time: whistleblower protection laws include no statute of limitations. However, quick reporting may be in the employee's interest (despite fears of retaliation escalation)--both because memories fade and loyalties shift, and because the OSC chooses to investigate very few cases. Plus, some OSC employees reject cases under incorrect or overruled standards, in part because the small office lacks resources to handle every case.

OSC presents cases it develops against retaliating managers to the MSPB--at most a handful each year out of hundreds of complaints. Sometimes, OSC negotiates with the agency to help a whistleblower. Usually, however, OSC advises the employee several months later that he or she can file an independent right of action (IRA) with the MSPB. Since 1994, employees may also independently request that the MSPB stop temporarily (stay) a proposed personnel action, such as a transfer or termination. The MSPB AJ's, evaluated on their speediness, may give improper weight to the OSC's issuance of an IRA letter and dismiss cases quickly on the same grounds.

Merit Systems Protection Board

The MSPB, a "quasi-judicial" agency, oversees the civil service disciplinary system. MSPB jurisdiction includes disciplinary performance actions taken by agencies, whistleblower IRAs, and retaliation cases brought by the OSC. FYI, the MSPB determines whether to assess demotions or terminations after evaluating the factors set forth in Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981), a non-whistleblower case. In 2000, the MSPB admitted it found prohibited personnel practices in only a couple of the more than 400 cases brought for its adjudication.

In its first decade, the MSPB did very little to protect whistleblowers, whose cases it claimed constituted only 8% of its annual workload. After a 1992 GAO survey showed rampant fear of retaliation among federal employees, the MSPB conducted its own confirming survey. Testimony during the 1994 reauthorization process, such as these legislative history excerpts, told the agency and Federal Circuit to treat whistleblowers more leniently. However, some MSPB AJs and OSC attorneys still apply case law overridden by the 1994 Amendments, perhaps in part because both agencies evaluate their own employees and managers based on the number of cases closed. The old jurisdictional grounds seem most efficient for dismissals. Few whistleblowers know neither the MSPB's secret quirks, nor the favorable legislative history.
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