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Parkinson v. Department of Justice

United States Court of Appeals, Federal Circuit

October 26, 2017


         Petition for review of the Merit Systems Protection Board in No. SF-0752-13-0032-I-2.

          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.

          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.

          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 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.


         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).


         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 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).

         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 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 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").

         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, § 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 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 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 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).

         Under 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).


         We may 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).

         It is 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.

         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 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.


         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).

         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 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.[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 protections 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) 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 ...

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