Parkinson v. DOJ , 874 F.3d 710 ( 2017 )

United States Court of Appeals
for the Federal Circuit
______________________
JOHN C. PARKINSON,
Petitioner
v.
DEPARTMENT OF JUSTICE,
Respondent
______________________
2015-3066
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-13-0032-I-2.
______________________
Decided: October 26, 2017
______________________
KATHLEEN M. MCCLELLAN, Whistleblower & Source
Protection Program, ExposeFacts, Washington, DC,
argued for petitioner. Also represented by JESSELYN
ALICIA RADACK.
ELIZABETH MARIE HOSFORD, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for respondent. Also
represented by TARA K. HOGAN, ROBERT E. KIRSCHMAN,
JR., BENJAMIN C. MIZER.
DAVID COLAPINTO, Kohn, Kohn & Colapinto, LLP,
Washington, DC, for amici curiae National Whistleblow-
2 PARKINSON v. DEP’T OF JUSTICE
ers Center, Michael German, Robert Kobus, Jane Turner,
Frederic Whitehurst. Also represented by STEPHEN M.
KOHN, National Whistleblowers Legal Defense, Washing-
ton, DC.
PETER ROMER-FRIEDMAN, Outten & Golden LLP,
Washington, DC, for amici curiae Reserve Officers Associ-
ation of America, Veterans of Foreign Wars of the United
States, Military Order of the Purple Heart, Military
Officers Association of America, Retired Enlisted Associa-
tion. Also represented by THOMAS G. JARRARD, The Law
Office of Thomas G. Jarrard, PLLC, Spokane, WA.
______________________
Before PROST, Chief Judge, NEWMAN, PLAGER, LOURIE,
LINN, DYK, MOORE, O’MALLEY, REYNA, WALLACH,
TARANTO, CHEN, HUGHES, and STOLL, Circuit Judges.
Opinion for the court filed by Circuit Judge HUGHES, in
which Chief Judge PROST and Circuit Judges NEWMAN,
LOURIE, DYK, MOORE, O’MALLEY, REYNA, WALLACH,
TARANTO, CHEN, and STOLL join.
Dissenting opinion filed by Circuit Judge PLAGER, in
which Circuit Judge LINN joins.
Dissenting opinion filed by Circuit Judge LINN, in which
Circuit Judge PLAGER joins.
HUGHES, Circuit Judge.
Lt. Col. John C. Parkinson appeals from a final deci-
sion of the Merit Systems Protection Board sustaining his
removal from the Federal Bureau of Investigation. A
panel of this court reversed the Board’s decision, conclud-
ing, in part, that the Board erred by not permitting
Mr. Parkinson to raise whistleblower reprisal as an
affirmative defense under 5 U.S.C. § 7701(c)(2)(C). We
convened en banc to reconsider whether FBI employees
are entitled to bring such whistleblowing claims to the
PARKINSON v. DEP’T OF JUSTICE 3
Board. We now conclude that 5 U.S.C. § 2303 requires all
FBI employees to bring claims of whistleblower reprisal to
the Attorney General. Accordingly, we vacate the portion
of the panel opinion finding that FBI employees may raise
whistleblower reprisal as an affirmative defense before
the Board, but reinstate the panel opinion as to all other
issues. This case is remanded to the Board for considera-
tion of the appropriate penalty.
I
On April 26, 2012, the FBI dismissed Mr. Parkinson
from his position as a Special Agent after finding him
guilty of lack of candor, obstruction, fraud/theft, and on-
duty unprofessional conduct. Mr. Parkinson, a prefer-
ence-eligible veteran, appealed his removal to the Board
and raised whistleblower reprisal as an affirmative de-
fense. The Administrative Judge dismissed
Mr. Parkinson’s whistleblower reprisal affirmative de-
fense based on the Board’s decision in Van Lancker v.
Department of Justice, 119 M.S.P.R. 514 (2013), which
held that FBI agents are not entitled to such affirmative
defenses under 5 U.S.C. § 7701(c)(2)(B) because the FBI is
excluded from the definition of agency in 5 U.S.C. § 2302.
The Administrative Judge, therefore, sustained
Mr. Parkinson’s removal based on the lack of candor and
obstruction charges. The Board affirmed.
On February 29, 2016, a panel of this court sustained
the obstruction charge but found the lack of candor charge
unsupported by substantial evidence. The panel also
determined that the Board improperly precluded
Mr. Parkinson from raising whistleblower reprisal as an
affirmative defense under 5 U.S.C. § 7701(c)(2)(C).
We granted the Department of Justice’s petition for
en banc review to determine whether preference-eligible
FBI employees can raise whistleblower reprisal as an
affirmative defense under 5 U.S.C. § 7701(c)(2)(C).
4 PARKINSON v. DEP’T OF JUSTICE
II
A brief history of the statutory context is in order. In
1978, Congress enacted the Civil Service Reform Act
(CSRA), which “comprehensively overhauled the civil
service system.” Lindahl v. Office of Pers. Mgmt., 470
U.S. 768, 773 (1985). The CSRA replaced the Civil Ser-
vice Commission with three new agencies: the Office of
Personnel Management (OPM); the Federal Labor Rela-
tions Authority (FLRA); and the Merit Systems Protection
Board (Board). 5 U.S.C. §§ 1101, 7104, 1201. The Board
was given “the responsibility, inter alia, to adjudicate
appeals of adverse personnel actions taken by a federal
agency against its employees.” Garcia v. Dep’t of Home-
land Sec., 437 F.3d 1322, 1327 (Fed. Cir. 2006) (en banc).
The Board’s jurisdiction, however, did not extend to all
adverse actions, nor to all employees of the Federal gov-
ernment. Only certain covered actions are reviewable and
only certain covered employees may seek review. Elgin v.
Dep’t of Treasury, 567 U.S. 1, 5–6 (2012).
Covered employees generally include those in the
“competitive service,” those in the “excepted service” who
meet tenure and length of service requirements, and,
most relevant to this case, preference-eligible employees
in the excepted service. See 5 U.S.C. § 7511(a)(1) (limit-
ing the definition of “employee” to certain personnel). 1
Even given those broad categories, many federal employ-
1 The CSRA initially included only those members
of the excepted service who were preference-eligible.
Subsequently, Congress enacted the Civil Service Due
Process Amendments of 1990, Pub. L. No. 101-376, 104
Stat. 461 (Aug. 17, 1990) (codified in relevant part at 5
U.S.C. § 7511), which extended appeal rights to non-
preference-eligible members of the excepted service who
had met service and tenure requirements. See Bennett v.
Merit Sys. Prot. Bd., 635 F.3d 1215, 1220 (Fed. Cir. 2011).
PARKINSON v. DEP’T OF JUSTICE 5
ees do not have the right to appeal to the Board. Employ-
ees of several agencies were entirely excluded from the
group of employees entitled to appeal to the Board. See,
e.g., 5 U.S.C. § 7511(b)(1)–(10). Other agencies and their
employees, including those of the FBI, were also excluded
from coverage with the exception of certain preference-
eligible employees. Id. § 7511(b)(8). That coverage con-
tinued protections for veterans and other preference-
eligible employees who had previous appeal rights to the
Civil Service Commission. See Veterans’ Preference Act
of 1944, Pub. L. No. 78-359, § 14, 58 Stat. 387, 390–91
(1944).
The CSRA also, for the first time, created whistle-
blower protections for certain federal employees. The
CSRA established the Office of Special Counsel (OSC) to
investigate allegations of whistleblower reprisal and seek
remedies from the Board on behalf of employees subject to
such reprisal. See 5 U.S.C. § 1214. Initially, however,
this was the only option available to an employee as the
CSRA did not create an individual right to bring a whis-
tleblower claim directly to the Board. Subsequently, in
the Whistleblower Protection Act (WPA), Congress creat-
ed a new Individual Right of Action (IRA) which permit-
ted certain individuals to bring individual whistleblower
claims directly to the Board. See 5 U.S.C. § 1221(a). The
CSRA also defined prohibited personnel practices that
certain federal employees may raise as an affirmative
defense when challenging an adverse action before the
Board, including whistleblower retaliation. See 5 U.S.C.
§ 7701(c)(2)(B) (requiring the Board to reverse an adverse
employment action when the employee “shows that the
decision was based on any prohibited personnel practice
described in section 2302(b) of this title”).
Relevant to this appeal, § 2302(b)(8) prohibits retalia-
tion against certain federal employees who expose waste,
fraud, and abuse. Specifically, § 2302(b)(8) prohibits
taking or threatening to take a personnel action against
6 PARKINSON v. DEP’T OF JUSTICE
“an employee in, or applicant for, a covered position in an
agency” because that individual disclosed information
“which the employee or applicant reasonably believes
evidences (i) any violation of any law, rule, or regulation,
or (ii) gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to
public health or safety . . . .” Employees who are covered
under § 2302(b)(8) may raise a whistleblower reprisal
allegation in one of three ways: (i) to the OSC under 5
U.S.C. § 1214, (ii) at the Board by filing an IRA under 5
U.S.C. § 1221, or (iii) as an affirmative defense to an
adverse employment action under 5 U.S.C.
§ 7701(c)(2)(B). As with the general coverage provisions
for Board appeal rights, the whistleblower provisions of
§ 2302 do not apply to all agencies and their employees.
See 5 U.S.C. § 2302(a)(2)(C). The plain language of the
statute excludes the FBI. See 5 U.S.C. § 2302(a)(2)(C) (for
purposes of § 2302, “agency” “does not include . . . the
Federal Bureau of Investigation”). Therefore, FBI em-
ployees are not covered under § 2302(b)(8) and may not
bring a claim of whistleblower reprisal under § 1214,
§ 1221, or as an affirmative defense under 5 U.S.C.
§ 7701(c)(2)(B).
Congress did not leave FBI employees without whis-
tleblower protections. In fact, it enacted a specific protec-
tion regime just for FBI employees who act as
whistleblowers. Although it excluded them from § 1214,
§ 1221, and § 2302(b)(8), it enacted 5 U.S.C. § 2303, a
separate but parallel whistleblower regime designed to
protect all FBI employees from retaliation. Borrowing the
definition of “personnel action” from § 2302(a)(2)(A)(i)–(x),
§ 2303 largely tracks the relevant protections provided in
the general whistleblower statute, § 2302(b)(8), insofar as
the substance of the disclosures given protection against
“personnel actions” is concerned. It prohibits taking or
failing to take a “personnel action” with respect to:
PARKINSON v. DEP’T OF JUSTICE 7
any employee of the Bureau as a reprisal for a dis-
closure of information by the employee to the At-
torney General (or an employee designated by the
Attorney General for such purpose) which the em-
ployee or applicant reasonably believes evidences
(1) a violation of any law, rule, or regulation, or (2)
mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger
to public health or safety.
5 U.S.C. § 2303. One difference from § 2302(b)(8) is that
§ 2303 limits the protected disclosures to those made
within the Department of Justice. 2 The more significant
difference, for present purposes, is in the manner in which
these protections are enforced.
Under § 2303, FBI employees, unlike employees cov-
ered under § 2302(b)(8), do not have the right to bring
claims of whistleblower reprisal directly to the Board by
filing an IRA, or raise it as an affirmative defense to an
adverse employment action under 5 U.S.C.
§ 7701(c)(2)(B). Section 2303(c) instead requires the
President to “provide for the enforcement of this section in
a manner consistent with applicable provisions of sections
2 Congress recently amended § 2303 to expand the
list of people and offices to whom FBI employees may
make protected disclosures. Because the appeal was filed
before the amendment, we rely on the prior version of the
statute. See Ad Hoc Shrimp Trade Action Comm. v.
United States, 802 F.3d 1339, 1349 (Fed. Cir. 2015) (“‘[A]
statute shall not be given retroactive effect unless such
construction is required by explicit language or by neces-
sary implication.’”); Hamdan v. Rumsfeld, 126 S. Ct. 2749,
2765 (2006) (“[I]f a new rule has no retroactive effect, the
presumption against retroactivity will not prevent its
application to a case that was already pending when the
new rule was enacted.”).
8 PARKINSON v. DEP’T OF JUSTICE
1214 [OSC investigation] and 1221 [IRA at the Board]”
(emphasis added), and § 2303(b) gives the Attorney Gen-
eral the authority to prescribe regulations to ensure that
personnel actions are not taken against FBI employees as
reprisal for making a protected disclosure. In 1997, the
President delegated his enforcement responsibilities
under § 2303(c) to the Attorney General. Memorandum,
Delegation of Responsibilities Concerning FBI Employees
Under the Civil Service Reform Act of 1978, 62 Fed. Reg.
23,123 (Apr. 14, 1997).
Under the regulations promulgated by the Attorney
General, FBI employees may bring claims of whistleblow-
er reprisal to the Office of Professional Responsibility
(OPR) and the Office of Inspector General (OIG), who are
charged with investigating claims of whistleblower re-
prisal. 28 C.F.R. § 27.3. If OPR or OIG determines “that
there are reasonable grounds to believe that a reprisal
has been or will be taken, [OPR or OIG] shall report this
conclusion, together with any findings and recommenda-
tions for corrective action, to the Director, Office of Attor-
ney Recruitment and Management (the Director).” Id.
§ 27.4. “[I]f the Director determines that a protected
disclosure was a contributing factor in a personnel action
taken or to be taken, the Director shall order corrective
action as the Director deems appropriate.” Id. The
Attorney General explained that for FBI employees’
whistleblower reprisal claims, “the roles and functions of
[OPR, OIG, and the Director] are thus analogous to those
of the OSC and [the Board], respectively, in whistleblower
cases involving federal employees generally.” Whistle-
blower Protection for Federal Bureau of Investigation
Employees, 64 Fed. Reg. 58,782, 58,783 (Nov. 1, 1999).
III
We may not set aside a Board’s decision unless it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
PARKINSON v. DEP’T OF JUSTICE 9
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703. Statutory interpretations, like
other questions of law, are reviewed de novo. Killeen v.
Office of Pers. Mgmt., 558 F.3d 1318, 1323 (Fed. Cir.
2009).
It is undisputed that, as a preference-eligible FBI em-
ployee, Mr. Parkinson may appeal adverse employment
actions to the Board. See 5 U.S.C. §§ 7513(d),
7511(a)(1)(B)(i). It is also undisputed that he may not
bring whistleblower claims to the Board through an IRA
under § 1221 or as an affirmative defense under 5 U.S.C.
§ 7701(c)(2)(B) because those statutory provisions depend
on the whistleblower reprisal provision in § 2302(b)(8),
which, as shown above, does not apply to any FBI em-
ployees.
Nonetheless, Mr. Parkinson argues that the Board
may still hear his claim of whistleblower reprisal as an
affirmative defense under § 7701(c)(2)(C). That section
requires reversal of any agency action that is “not in
accordance with law.” Id. According to Mr. Parkinson, if
the FBI violates the provisions of § 2303—the statute
establishing a separate whistleblower scheme specifically
for the FBI—it acts not in accordance with law and there-
fore violates § 2302(c)(2)(C). We disagree that a violation
of § 2303 can form the basis of an affirmative defense
under § 7701(c)(2)(C). We also conclude that § 2303
establishes a separate and independent whistleblower
scheme for FBI employees, which does not provide for
review at the Board or in this court.
A
The relevant statutory provisions make clear that the
Board does not have jurisdiction to hear preference-
eligible FBI employees’ claims of whistleblower reprisal
under § 7701(c)(2)(C).
10 PARKINSON v. DEP’T OF JUSTICE
As noted above, Congress specifically exempted the
FBI from the whistleblower protection set forth in 5
U.S.C. § 2302(b)(8) and instead provided a separate
review process for claims of whistleblower reprisal by FBI
employees. Section 2303, including its delegation to the
President of authority to create a remedy scheme specific
to this section, plainly applies to “any employee of the
Bureau.” 5 U.S.C. § 2303(a) (emphasis added). It does
not distinguish between preference-eligible employees and
non-preference-eligible employees. The broad and encom-
passing language of § 2303, and the corresponding broad
exclusion of the FBI from § 2302, indicates Congress’s
intent to establish a separate regime for whistleblower
protection within the FBI. 3 Allowing preference-eligible
FBI employees to raise whistleblower reprisal claims at
the Board when § 2303—the only statute protecting FBI
employees from whistleblower reprisal—does not provide
such a right, would contradict the unambiguous statutory
language of § 2303 and inappropriately expand the pro-
tections provided to FBI employees by Congress.
Moreover, allowing the Board to review FBI whistle-
blower reprisal claims under the broad language of
§ 7701(c)(2)(C) would render the specific provisions of
§ 7701(c)(2)(B) superfluous. Section 7701(c)(2)(B) specifi-
cally requires the Board to overturn adverse actions for
3 The FBI is not the only agency to have a separate
statutory scheme for the protection of whistleblower
rights. See Intelligence Community Whistleblower Pro-
tection Act of 1998, Pub. L. No. 105-272, 112 Stat. 2396
(1998) (establishing whistleblower protections for em-
ployees, or contractor employees, of certain agencies
excluded from 5 U.S.C. § 2302(b)(8), including the Defense
Intelligence Agency, National Geospatial-Intelligence
Agency, National Reconnaissance Office, and the National
Security Agency).
PARKINSON v. DEP’T OF JUSTICE 11
violations of the general whistleblower statute,
§ 2302(b)(8). Thus, if we interpreted § 7701(c)(2)(C) so
broadly as to allow an FBI employee or applicant for
employment to raise whistleblower reprisal as a “violation
of law” (specifically, a violation of § 2303), then a violation
of § 2302(b)(8) would also qualify as a “violation of law”
under § 7701(c)(2)(C), and § 7701(c)(2)(B) would no longer
serve any independent purpose. Such a result violates the
general/specific canon of statutory construction. See
RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132
S. Ct. 2065, 2071 (2012) (“[Where] a general authorization
and a more limited, specific authorization exist side-by-
side[, t]he canon avoids . . . the superfluity of a specific
provision that is swallowed by the general one, violat[ing]
the cardinal rule that, if possible, effect shall be given to
every clause and part of a statute.” (internal quotation
marks and citation omitted)); Wash. Mkt. Co. v. Hoffman,
101 U.S. 112, 115–16 (1879) (“As early as in Bacon’s
Abridgment, sect. 2, it was said that ‘a statute ought,
upon the whole, to be so construed that, if it can be pre-
vented, no clause, sentence, or word shall be superfluous,
void, or insignificant.’”).
In light of Congress’s specific exclusion of all FBI em-
ployees from the whistleblower protections remediable at
the Board, and its specific establishment of a separate
whistleblower protection scheme for FBI employees, it is
improper to read an intent by Congress to allow whistle-
blower affirmative defenses by preference-eligible FBI
employees under the general language of § 7701(c)(2)(C).
Congress was clearly aware that it had allowed prefer-
ence-eligible employees to appeal to the Board, despite the
general exclusion of the rest of FBI employees from such
protections. It was also aware that it excluded all FBI
employees, including those who were preference eligible,
from the whistleblower protections of § 2302(b)(8). And it
was aware that § 2303 provided no right for Board review
of whistleblower claims by any FBI employees, prefer-
12 PARKINSON v. DEP’T OF JUSTICE
ence-eligible or not. If it had intended preference-eligible
FBI employees to use § 2303 as an affirmative defense in
Board cases, it could have explicitly said so, either in
§ 2303 itself, or in § 7701(c)(2)(B) alongside the provision
that specifically recognized whistleblower reprisal (along
with other prohibited personnel practices), as an affirma-
tive defense. It did not. To conclude that Congress never-
theless intended sub silentio for preference-eligible FBI
employees to bring whistleblower claims to the Board,
despite the plain statutory language and structure, goes
too far.
The legislative history also supports the conclusion
that the Board lacks jurisdiction over preference-eligible
FBI employees’ claims of whistleblower reprisal under
§ 7701(c)(2)(C). Congress noted that “the FBI has exclu-
sive investigative responsibility for foreign counterintelli-
gence activities within the United States” and “is charged
with the investigation of 78 different types of violations of
criminal statutes relating to the integrity of Federal
officials.” 95 CONG. REC. H9358 (daily ed. Sept. 11, 1978)
(statement of Rep. Collins). Congress was therefore
concerned that the “unique problems facing an intelli-
gence agency such as the FBI,” including “[t]he rigorous
and dangerous duties performed by the Bureaus’ employ-
ees,” did not “lend themselves to [certain] aspects of this
legislation,” most notably, the general whistleblower
provisions of § 2302(b)(8). 95 CONG. REC. H9359 (daily ed.
Sept. 11, 1978) (statement of Rep. Derwinski). Ultimate-
ly, Congress expressly exempted FBI employees from
§ 2302(b)(8) “on the same basis as the various national
security agencies—the Central Intelligence Agency, the
Defense Intelligence Agency, and the National Security
Agency.” 95 CONG. REC. H9358 (daily ed. Sept. 11, 1978)
(statement of Rep. Collins). Instead, due to “the demand-
ing, sensitive, and unique responsibilities” which require
“as great a degree of insulation with regard to its person-
nel function as is practical,” Congress gave the FBI “spe-
PARKINSON v. DEP’T OF JUSTICE 13
cial authority . . . to let the President set up their own
whistle-blower system so that appeals would not be to the
outside but to the Attorney General.” 95 CONG. REC.
H9429–30 (daily ed. Sept. 11, 1978) (statement of Rep.
Udall). The Conference Committee explained:
The conference substitute excludes the FBI from
coverage of the prohibited personnel practices, ex-
cept that matters pertaining to protection against
reprisals for disclosure of certain information de-
scribed in section 2302(b)(8) would be processed
under special procedures similar to those provided
in the House bill. The President, rather than the
Special Counsel and the Merit Board, would have
responsibility for enforcing this provision with re-
spect to the FBI under section 2303.
S. Rep. No. 95-1272, at 128 (1978).
Based on the language of § 2302(b), § 2303, and
§ 7701(c)(2), which the legislative history confirms, we
conclude that the Board does not have jurisdiction to
review FBI employees’ whistleblower reprisal claims.
B
Since the late 1990s, § 2303’s express delegation of
remedy-creation authority to the President has been
implemented by regulations that keep review of alleged
FBI reprisals within the Department of Justice, with no
Board review or judicial review. Congress reconsidered
and amended § 2303 in 2016, yet chose not to alter the
remedies. If the statute is to be changed to provide for
Board review, the remedy lies with Congress and not this
court.
The sufficiency of the whistleblower protections avail-
able to FBI employees has been debated in Congress more
than once. Each time, those debates were predicated on
the fact that “[a]ll complaints are investigated and adjudi-
cated completely within the Justice Department without
14 PARKINSON v. DEP’T OF JUSTICE
any opportunity for independent review.” S. REP. NO.
114-261, at 4 (2016). In May 2016, Senator Grassley
introduced the Federal Bureau of Investigation Whistle-
blower Protection Enhancement Act of 2016. Id. at 21–25.
That Act, as proposed, would have “provide[d] for new and
enhanced procedures for the investigation and adjudica-
tion of allegations of FBI whistleblower reprisal,” includ-
ing judicial review by the Federal Circuit to provide
“consisten[cy] with whistleblower cases under the Whis-
tleblower Protection Enhancement Act on appeal from the
Merit Systems Protection Board.” Id. at 10, 15.
On December 16, 2016, Congress slightly modified the
FBI whistleblower statute by expanding the group of
people and offices to which FBI employees may make
protected disclosures. The Federal Bureau of Investiga-
tion Whistleblower Protection Enhancement Act of 2016,
Pub. L. No. 114-302, 130 Stat. 1516 (2016). The law as
enacted does not provide for judicial review of FBI em-
ployees’ claims of whistleblower reprisal.
As with Board review, whether judicial review should
be provided for FBI agents is a matter for Congress and
not this court.
IV
We find that the Board did not err in concluding that
it lacked jurisdiction to hear FBI employees’ claims of
whistleblower reprisal under § 7701(c)(2)(C). Therefore,
we vacate the portion of the panel opinion finding that
FBI employees may raise whistleblower reprisal as an
affirmative defense before the Board, but reinstate the
panel opinion as to all other issues. Accordingly, we
remand to the Board for consideration of the appropriate
penalty.
AFFIRMED-IN-PART, REVERSED-IN-PART,
VACATED-IN-PART AND REMANDED
No costs.
United States Court of Appeals
for the Federal Circuit
______________________
JOHN C. PARKINSON,
Petitioner
v.
DEPARTMENT OF JUSTICE,
Respondent
______________________
2015-3066
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-13-0032-I-2.
______________________
PLAGER, Circuit Judge, with whom LINN, Circuit Judge,
joins, dissenting.
The majority opinion, recognizing that there is no
statute directly on point, engages us in an exhaustive
parsing of statutes and legislative history in an effort to
infer the “right” answer. But this case is not about the
history and construction of tangential statutory enact-
ments.
Over the years the judges of this court have had to
deal with the myriad of statutes applicable to federal
government employees and their rights under the law.
Anyone who does this knows that the statutory structure
governing federal personnel that has emerged after years
of Congressional additions and amendments is a structure
2 PARKINSON v. DEP’T OF JUSTICE
riddled with inconsistences and puzzling provisions. 1
Sometimes, parsing the variety of statutes that could be
invoked as applicable to a particular personnel problem is
akin to predicting divine will by studying animal entrails,
as was done by the Etruscans and Romans. In that
connection, it has been remarked that, “while ‘answers’ of
some sort will be found if one insists on finding them,
many will view the process as unedifying.” 2 My colleague,
Judge Linn, in his dissent which I join, nicely shows how
such parsing can support the exact opposite conclusion
than that reached by the majority.
An alternative approach in this case is to address
what Mr. Parkinson’s case is fundamentally about, and
what the fair and just result should be. It is true that, as
an initial proposition, an agent of the Federal Bureau of
Investigation (“FBI”) who thinks he or she is being treat-
ed unfairly because they blew the whistle on some illegal
conduct by other FBI agents, including administrative
superiors in the agency, is entitled to have their case
decided by—the FBI. 3
Through the mechanism created under the authority
of 5 U.S.C. § 2303, an initial claim by an FBI agent that
an earlier whistleblower report has now led to retaliatory
action will be heard by officers in the FBI agency, the
same agency against whom the employee is complaining.
1 The Supreme Court, in a case regarding the stat-
utes governing ‘mixed case’ appeals before the MSPB,
once observed that it is “a complicated, at times confusing,
process.” Kloeckner v. Solis, 568 U.S. 41, 49 (2012).
2 See Saikrishna Bangalore Prakash, Imperial from
the Beginning: The Constitution of the Original Executive
6 (Yale Univ. Press 2015).
3 The admittedly ungrammatical “they/their” usage
is to avoid repetition of the he/she phrasing.
PARKINSON v. DEP’T OF JUSTICE 3
And the final merits of the agent’s complaint will be
determined by those same officers, without any further
review in a court or elsewhere. In short, the FBI agency
is both defendant and judge of the employee’s whistle-
blower claim of unfair treatment. Some observers might
argue that, even if well intentioned in order to limit public
disclosure of FBI methods, such a system is an offense to
basic principles of due process and governmental authori-
ty toward people whose only sin may be that they have
chosen to work for the Government.
But that is not the problem we are here called upon to
address. Congress created an alternative route for certain
preference-eligible employees, of which Mr. Parkinson is
one. In the case of certain veterans who are employed by
the FBI, designated preference-eligible employees, Con-
gress gave such employees an opportunity to have their
complaints heard by a neutral third party, specifically the
Merit System Protection Board (“MSPB”). 4
The MSPB, created as part of the 1978 overhaul of the
federal employment system, was designed to focus the
system on merit principles. It is “responsible for safe-
guarding the effective operation of the merit principles in
practice.” 5 The MSPB is the arbiter of employee com-
plaints against an agency employer who has taken what
4 Even before the creation of the MSPB, Congress
carved out a statutory right solely for veterans to appeal
an adverse personnel action to the Civil Service Commis-
sion. See 5 U.S.C. § 7701 (1976).
5 S. Rep. No. 95-969, at 6, U.S. Code Cong. & Ad-
min. News 1978, p. 2728.
4 PARKINSON v. DEP’T OF JUSTICE
the statutes call an “adverse action”; dismissal from the
agency is such an action. 6
Among these merit principles, set out in 5 U.S.C.
§ 2301, is a general statement about federal employment
in subsection (b)(2):
All employees . . . should receive fair and equita-
ble treatment in all aspects of personnel manage-
ment without regard to political affiliation, race,
color, religion, national origin, sex, marital status,
age, or handicapping condition, and with proper
regard for their privacy and constitutional rights.
More to the point here, subsection (b)(9) specifically
provides:
Employees should be protected against reprisal
for the lawful disclosure of information which the
employees reasonably believe evidences—(A) a vi-
olation of any law, rule, or regulation, or (B) mis-
management, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to
public health or safety.
The special protections under subsection (b)(9) have
been provided for whistleblowers, employees who report
bad conduct on the part of other employees, and are
sometimes singled out for retaliatory treatment by agency
officialdom. As § 2301 evidences, the MSPB has an
important role to play when an employee alleges a retalia-
tory dismissal following a whistleblowing action, as was
the case of Mr. Parkinson.
6 See 5 U.S.C. §§ 7512(1), 7513(d); see also 5 U.S.C.
§ 7511(a)(1)(B) and (b)(8) (concerning FBI preference
eligibles).
PARKINSON v. DEP’T OF JUSTICE 5
So Mr. Parkinson took his case to the MSPB. He had
been removed from his job. He tried to tell the MSPB
that his firing was not because of anything he did wrong,
but was in retaliation for his being a whistleblower.
Specifically, he had reported to his chain of command,
including FBI Assistant Special Agent in Charge, Gregory
Cox, that two pilots—who were part of the special opera-
tions group under Mr. Parkinson’s leadership—had
engaged in misconduct. He alleged that the two pilots,
inter alia, misused FBI aircraft to solicit prostitutes,
committed time and attendance fraud, used FBI comput-
ers to view pornography, and destroyed equipment. Such
alleged activities would seem fairly contrary to the merit
system’s principles, or any other measure of proper feder-
al employee behavior.
Prior to being removed, but after making his protect-
ed whistleblower disclosures, Mr. Parkinson was demoted
from his special operations group leadership role, issued a
low performance rating, and reassigned to a different field
office. Among those involved in taking these actions
against Mr. Parkinson was Assistant Special Agent in
Charge Mr. Cox—the same FBI employee who was the
recipient of Mr. Parkinson’s earlier whistleblower disclo-
sures. Later, Mr. Cox and the FBI’s Sacramento Office
began the process that resulted in Mr. Parkinson’s ulti-
mate removal—an action that all three judges in the
initial panel decision of this court determined could not be
sustained on the grounds presented. 7 That panel decision
resulted in this en banc review.
7 See Parkinson v. Dep’t of Justice, 815 F.3d 757,
776 (Fed. Cir. 2016), vacated by 691 F. App’x 909 (Fed.
Cir. 2016) (per curiam order granting petition for rehear-
ing en banc).
6 PARKINSON v. DEP’T OF JUSTICE
The MSPB heard Mr. Parkinson’s appeal from his
dismissal, but ruled he could not present his affirmative
defense that the dismissal was in retaliation for his
whistleblowing activity. Not surprisingly, the Govern-
ment’s essentially uncontested allegations led the MSPB
to affirm his dismissal.
The explanation this en banc court, and to some ex-
tent the MSPB, gives is that a claim of whistleblowing by
FBI agents under the relevant statutes goes exclusively to
the FBI for resolution. But this case does not involve a
claim of whistleblowing in the first instance. It involves
whether a preference-eligible FBI agent, pursuant to a
special statutory right to take an appeal from an agency
dismissal to the MSPB, can defend against the Govern-
ment’s argument for dismissal by providing evidence of a
retaliatory government motive. The Government alleges
that, because of the employee’s conduct in office, the
dismissal is proper. The counter is to show a neutral
decider that what he really did was to blow the whistle on
the FBI’s activities, and that is why they are punishing
him—a prohibited retaliatory action. 8
This is what is known in the law as an affirmative de-
fense. 9 And in what to me is an inexplicable decision, this
8 It is not surprising to be told that the FBI takes
its time and, in many cases, concludes that the allegations
of misconduct by FBI authorities—casting a disparaging
light on the agency—are unjustified. See, e.g., En Banc
Brief of Amici Curiae National Whistleblower Center et
al. in Support of Petitioner at 1–8, 16–17; GAO Report 15-
112, “Whistleblower Protection, Additional Actions Need-
ed to Improve DOJ’s Handling of FBI Retaliation Com-
plaints” (Jan. 2015).
9 See, e.g., Affirmative Defense, under Defense,
Black’s Law Dictionary (10th ed. 2014) (“A defendant’s
PARKINSON v. DEP’T OF JUSTICE 7
court holds that his right to appeal his dismissal to the
MSPB does not include the right to defend himself on the
one ground that, under normal circumstances, if true,
would vitiate the agency’s adverse action against him.
This is particularly odd because the MSPB in considering
permissible penalties for wrongdoing may consider whis-
tleblowing as a mitigating factor. See Archuleta v. Hop-
per, 786 F.3d 1340, 1352–53 (Fed. Cir. 2015) (en banc);
Douglas v. Veterans Admin., 5 M.S.P.B. 313, 331–33
(1981).
No amount of parsing of tangential statutes and regu-
latory provisions can justify a basic denial of the right to
make one’s best case to the designated arbiter of one’s
fate. See U.S. Const. amend. V (“No person . . . shall be
deprived of life, liberty, or property, without due process
of law . . . .”). See also Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 546 (1985): “The opportunity to
present reasons, either in person or in writing, why
proposed action should not be taken is a fundamental due
process requirement. . . . The tenured public employee is
entitled to . . . an opportunity to present his side of the
story.” If this case is not a denial of due process by the
Government, I am hard pressed to imagine one.
Congress gave Mr. Parkinson an exemption from the
‘usual’ FBI whistle-blower/adverse action rules and gave
him a hearing before the MSPB. That hearing must be
conducted in a fair and proper way under our Constitu-
tion. A right to present what may prove to be a valid
affirmative defense is clearly included. Equally im-
assertion of facts and arguments that, if true, will defeat
the plaintiff’s or prosecution’s claim, even if all the allega-
tions in the complaint are true. . . . Also termed plea in
avoidance; plea in justification. Cf. negative defense;
confession and avoidance.”).
8 PARKINSON v. DEP’T OF JUSTICE
portantly, if the MSPB fails in its duty to provide a fair
and proper hearing, the law gives him a right to appeal to
this court for correction.
Both we and the MSPB have failed in our duty. I re-
spectfully dissent.
United States Court of Appeals
for the Federal Circuit
______________________
JOHN C. PARKINSON,
Petitioner
v.
DEPARTMENT OF JUSTICE,
Respondent
______________________
2015-3066
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-13-0032-I-2.
______________________
LINN, Circuit Judge, with whom PLAGER, Circuit Judge,
joins, dissenting.
The majority concludes that Congress implicitly lim-
ited preference eligible Federal Bureau of Investigation
(“FBI”) employees’ statutory right to challenge adverse
employment actions under 5 U.S.C. §§ 7513 and 7701 by
creating an administrative enforcement scheme available
to all FBI employees. I respectfully dissent from this
implicit limitation of an explicit right.
I
The perspective underlying much of the majority’s
reasoning is that Parkinson is an FBI employee first, and
a preference eligible veteran second. Thus, the majority
concludes that “the [Merit Systems Protection Board
2 PARKINSON v. DEP’T OF JUSTICE
(‘Board’)] does not have jurisdiction to hear preference
eligible FBI employees’ claims of whistleblower reprisal
under § 7701(c)(2)(C).” Maj. Op. at 9.
However, Parkinson does not ask the Board to review
his claims of whistleblower retaliation—Parkinson asks
the Board to review the propriety of the FBI’s adverse
employment action under 5 U.S.C. § 7513(d) (“An employ-
ee against whom an action is taken under this section is
entitled to appeal to the Merit Systems Protection Board
under section 7701 of this title.”).
The majority acknowledges that Congress intended to
give Parkinson the right, as a preference eligible veteran,
to have the Board and this court review the FBI’s adverse
employment action. Maj. Op. at 4. Congress empowered
the Board and this court to ask and answer the following
question: was the FBI’s adverse employment action taken
“for such cause as will promote the efficiency of the ser-
vice”? 5 U.S.C. § 7513(a). Congress unambiguously
required the Board to vacate the Agency action, even if
supported by substantial or preponderant evidence, where
the Board concludes that the Agency action was proce-
durally flawed, where the basis for the Agency action is
prohibited, or where “the decision was not in accordance
with law.” 5 U.S.C. § 7701(c)(2)(A–C). It is undisputed
that a decision to remove an FBI employee motivated by
whistleblower retaliation is not in accordance with law
under 5 U.S.C. § 2303.
The answer to the Board’s congressionally mandated
inquiry of whether Parkinson’s removal “will promote the
efficiency of the service” rests on a determination of
whether the removal was motivated by whistleblower
retaliation. If Parkinson’s allegation of whistleblower
reprisal is proven, then Congress requires the Board to
vacate the adverse employment action. Thus, the whis-
tleblower retaliation determination is part and parcel of
the determination at the heart of the Board’s jurisdiction.
PARKINSON v. DEP’T OF JUSTICE 3
The Board’s review authority over adverse employ-
ment action taken against a preference eligible FBI
employee is explicit, as is the Congressional intent that
an action taken against such an employee may not be
sustained if based on a violation of law. Because an
adverse employment action against an FBI employee
based on whistleblower retaliation is a violation of law, 5
U.S.C. § 2303, the Board straight-forwardly has jurisdic-
tion to consider Parkinson’s contention that his removal
was premised on whistleblower retaliation.
The majority, however, concludes to the contrary. The
majority instead infers a congressional intent to prohibit
preference eligible veterans at the FBI from challenging
adverse employment actions based on whistleblower
retaliation. The majority broadly relies on: (1) the rela-
tionship of § 2302 and § 2303 and (2) an implication from
§ 7701. These are addressed below.
II
To the extent that the statutory scheme is reasonably
amenable to the majority’s restriction, such ambiguity
must be resolved in the veteran’s favor. See Terry v.
Principi, 340 F.3d 1378, 1384 (Fed. Cir. 2003) (“[I]t is a
well-established rule of statutory construction that when
a statute is ambiguous, ‘interpretive doubt is to be re-
solved in the veteran’s favor.’” (citing Brown v. Gardner,
513 U.S. 115, 118 (1994)). The majority’s decision is
proper only if the statutes unambiguously require the
restriction on Parkinson’s right to present a whistleblower
reprisal affirmative defense.
With respect to § 2303, I agree that § 2303 “establish-
es a separate and independent whistleblower scheme for
FBI employees, which does not provide for review at the
Board or in this Court.” Maj. Op. at 9. However, nothing
in the majority opinion explains why the internal proce-
dure created under § 2303 provides the exclusive mecha-
nism to consider whistleblower retaliation at the FBI.
4 PARKINSON v. DEP’T OF JUSTICE
The reference to “any employee of the Bureau” in
§ 2303, Maj. Op. at 10, merely addresses who the offender
is—it protects FBI employees from whistleblower repris-
als made by “any employee.” It does not indicate that
“any” (or all) allegations of whistleblower retaliation at
the FBI may only be considered internally under the
Attorney General’s scheme. As I read the statute, it
merely provides an administrative scheme for the en-
forcement of a right available to all FBI employees. Such
an affirmative grant does not and should not implicitly
limit the judicial review explicitly available to a select
class of employees that implicates the same right.
The fact that § 2303 does not distinguish between
preference eligible and not preference eligible employees,
Maj. Op. at 10, cuts against the majority’s interpretation
of the overall statutory scheme that singles out preference
eligible FBI employees and hamstrings their right of
Board review of adverse employment actions taken
against them.
The majority also wrongly relies on the combination of
the “broad and encompassing language of § 2303, and the
corresponding broad exclusion of the FBI from § 2302” to
infer a congressional intent of exclusively internal review.
Maj. Op. at 10. There are several problems with this
reasoning. First, the exclusion of the FBI from § 2302
says nothing about whether the enforcement mechanism
of § 2303 is the exclusive mechanism available to FBI
employees. Second, § 2303 limits qualifying disclosures to
those made “by the employee to the Attorney General (or
an employee designated by the Attorney General for such
purpose).” The exclusion of the FBI from § 2302 thus has
the effect of limiting the types of qualifying disclosures
available to FBI agents. It says nothing about the adjudi-
catory body available to remedy whistleblower reprisal.
Section 2303 prohibits certain actions by the FBI and
gives the Attorney General and the President the power
PARKINSON v. DEP’T OF JUSTICE 5
to enforce those prohibitions, but it nowhere indicates
that the resulting administrative enforcement scheme is
intended to be exclusive, or that employees with judicial
appeal rights under §§ 7701, 7511, and 7513 cannot
contest adverse employment actions taken against them
as based on those same prohibited actions.
III
The majority also concludes that § 7701(c)(2) itself
limits Parkinson’s rights to assert § 2303 as part of his
challenge to the FBI’s employment action. Maj. Op. at
10–13. I disagree.
First, allowing an affirmative defense of whistleblow-
er retaliation under § 7701(c)(2)(C) referencing § 2303
does not render § 7701(c)(2)(B) superfluous. The majority
does not explain how the fact that “a violation of
§ 2302(b)(8) would also qualify as a ‘violation of law’
under § 7701(c)(2)(C),” Maj. Op. at 11, applies to the
instant situation, where the premise is that § 2302(b)(8)
does not apply. In other words, the majority’s hypothet-
ical is flawed, because the FBI cannot take action that is a
“violation of law” based on § 2302(b)(8) because of the
FBI’s exclusion from the definition of “agency” in
§ 2302(b)(8). Indeed, the inapplicability of § 2302(b)(8) is
the reason we are considering § 7701(c)(2)(C) at all in this
case. If it were otherwise, Parkinson’s right to assert
whistleblower reprisal to challenge his removal would be
found under § 7701(c)(2)(B). The “general/specific canon
of statutory construction,” Maj. Op. at 11, is thus also
inapplicable—there is no superfluity because the scope of
the two provisions is facially different. See Parkinson v.
Dep’t of Justice (“Panel Op.”) 815 F.3d 757, 774 (Fed. Cir.
2016), vacated by 691 F. App’x 909 (Fed. Cir. 2016) (per
curiam order granting petition for rehearing en banc)
(distinguishing RadLAX Gateway Hotel, LLC v. Amalga-
mated Bank, 566 U.S. 639 (2012)).
6 PARKINSON v. DEP’T OF JUSTICE
If § 7701(c)(2)(B) explicitly excluded FBI employees
from raising an affirmative defense of whistleblower
retaliation, then the majority’s argument might be more
convincing. Here, however, the FBI’s exclusion is in
§ 2302(b)(8). There is no basis to conclude that Congress
intended the FBI’s exclusion from § 2302(b) as an affirma-
tive restriction on the availability of affirmative defenses
at the Board described in § 7701(c)(2), rather than as a
restriction on statutes that rely on the criteria of
§ 2302(b) to establish jurisdiction, such as the right of
review in 5 U.S.C. § 1214(a)(3) and the independent right
of action in 5 U.S.C. § 1221.
At bottom, there is no unambiguous exclusion of pref-
erence eligible FBI employees from the right to assert an
affirmative defense of whistleblower reprisal in either
§§ 2302, 2303 or § 7701.
IV
The majority bases its decision on two additional ar-
guments based on congressional consideration and action:
(1) Congressional concern for national security arising out
of judicial adjudication of FBI whistleblower reprisals,
Maj. Op. at 12–13, and (2) later Congressional considera-
tion and rejection of greater whistleblower protection for
FBI employees. Maj. Op. at 13–14.
The legislative history only goes to show that Con-
gress determined that the security risk of adjudicating all
FBI employees’ whistleblower complaints at the Board
outweighed the benefits, in a similar way that Congress
decided that adjudicating all FBI employees’ removals at
the Board outweighed the benefits. Congress, however,
granted preference eligible FBI employees the right to
Board review of certain employment actions despite these
risks. Panel Op., 815 F.3d at 771–74. As explained in
Section I above, the right to challenge the employment
action on the basis of whistleblower reprisal attaches to
the right to contest the employment action. Neither the
PARKINSON v. DEP’T OF JUSTICE 7
Government nor the majority argue that adjudicating
whistleblower reprisals leading to adverse employment
actions pose greater security and disclosure risks than
adjudicating the removals themselves.
Moreover, nothing in the legislative commentary or
proposed legislation referenced preference eligible FBI
employees. All of the cited post-Civil Service Reform Act
legislative activity is consistent with the availability of
judicial review of Parkinson’s removal, including his
challenge that the removal was motivated by whistle-
blower retaliation.
V
At base, I disagree with the majority’s framing of the
issue from the perspective of Parkinson as an FBI em-
ployee first, and disregarding the congressional intent
manifest in §§ 7701 and 7513 that gives preference eligi-
ble FBI employees a right to challenge certain adverse
employment actions by alleging that the action taken was
not in accordance with law. I therefore respectfully
dissent.