JOHN C. PARKINSON, Petitioner
DEPARTMENT OF JUSTICE, Respondent
for review of the Merit Systems Protection Board in No.
Kathleen M. McClellan, Whistleblower & Source Protection
Program, Expose Facts, 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.
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.
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,
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
Hughes, Circuit Judge
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 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.
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.
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).
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).
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 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 (2012).
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 of "employee" to certain
personnel).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).
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
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").
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, § 1221, or
as an affirmative defense under 5 U.S.C. §
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 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:
any employee of the Bureau as a reprisal for a disclosure of
information by the employee to the Attorney General (or an
employee designated by the Attorney General for such purpose)
which the employee 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
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. The more
significant difference, for present purposes, is in the
manner in which these protections are enforced.
§ 2303, FBI employees, unlike employees covered 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
1214 [OSC investigation] and 1221 [IRA at the Board]"
(emphasis added), and § 2303(b) gives the Attorney
General 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).
the regulations promulgated by the Attorney General, FBI
employees may bring claims of whistleblower reprisal to the
Office of Professional Responsibility (OPR) and the Office of
Inspector General (OIG), who are charged with investigating
claims of whistleblower reprisal. 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 recommendations for corrective action, to the Director,
Office of Attorney 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).
not set aside a Board's decision unless it is "(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence." 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).
undisputed that, as a preference-eligible FBI employee, 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 employees.
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 therefore 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.
relevant statutory provisions make clear that the Board does
not have jurisdiction to hear preference-eligible FBI
employees' claims of whistleblower reprisal under §
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 encompassing
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. 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 protections provided to FBI
employees by Congress.
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) specifically requires the
Board to overturn adverse actions for 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)); W ...