Parkinson v. Dep't of Justice

Decision Date26 October 2017
Docket Number2015-3066.
Citation874 F.3d 710
Parties John C. PARKINSON, Petitioner v. DEPARTMENT OF JUSTICE, Respondent
CourtU.S. Court of Appeals — Federal Circuit

874 F.3d 710

John C. PARKINSON, Petitioner
v.
DEPARTMENT OF JUSTICE, Respondent

2015-3066.

United States Court of Appeals, Federal Circuit.

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 Whistleblowers Center, Michael German, Robert Kobus, Jane Turner, Frederic Whitehurst. Also represented by Stephen M. Kohn , National Whistleblowers Legal Defense, Washington, DC.

Peter Romer-Friedman , Outten & Golden LLP, Washington, DC, for amici curiae Reserve Officers Association of America, Veterans of Foreign Wars of the United States, Military Order of the Purple Heart, Military Officers Association of America, Retired Enlisted Association. 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 decision 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, concluding, in part, that the Board erred by not permitting Mr. Parkinson

874 F.3d 712

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 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 consideration 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 preference-eligible veteran, appealed his removal to the Board and raised whistleblower reprisal as an affirmative defense. The Administrative Judge dismissed Mr. Parkinson's whistleblower reprisal affirmative defense 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).

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, 105 S.Ct. 1620, 84 L.Ed.2d 674 (1985). The CSRA replaced the Civil Service Commission with three new agencies: the Office of Personnel Management (OPM); the Federal Labor Relations 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 Homeland 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 government. 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, 132 S.Ct. 2126, 183 L.Ed.2d 1 (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) (limiting the definition

874 F.3d 713

of "employee" to certain personnel).1 Even given those broad categories, many federal employees do not have the right to appeal to the Board. Employees 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 continued 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 whistleblower 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 whistleblower claim directly to the Board. Subsequently, in the Whistleblower Protection Act (WPA), Congress created a new Individual Right of Action (IRA) which permitted 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 retaliation against certain federal employees who expose waste, fraud, and abuse. Specifically, § 2302(b)(8) prohibits taking or threatening to take a personnel action against "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 employees are not covered under § 2302(b)(8) and may not bring a claim of whistleblower reprisal under § 1214,

874 F.3d 714

§ 1221, or as an affirmative defense under 5 U.S.C. § 7701(c)(2)(B).

Congress did not leave FBI employees without whistleblower protections. In fact, it enacted a specific protection 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...

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