Parkinson v. DOJ
874 F.3d 710 (Fed. Cir. 2017)
Authored by Marylenny Iglesias
Statement of Facts: The petitioner appeals the decisions by the Merit Systems Protection Board (“MSPB”). The MSPB sustained the petitioner’s dismissal as a special agent of the Federal Bureau of Investigation (“FBI”) for lack of candor, theft, and on-duty unprofessional conduct. The petitioner claims that he should have been able to raise an affirmative defense under 5 U.S.C § 7701(c)(2)(C). This provision of the statute applies to whistleblower reprisal. The petitioner alleged that he was removed from the FBI as retaliation for reporting to his chain of command the misconduct of two pilots. The petitioner’s report stated that two pilots misused FBI aircraft to solicit prostitutes, commit time and attendance fraud, and destroy equipment. After the petitioner made these allegations, he was demoted, received a low performance rating, reassigned and subsequently removed from the FBI. The FBI employee that received the petitioner’s whistleblower disclosure was among the personnel making the decision to remove him.
Procedural History: After the petitioner was dismissed from his role as an FBI special agent, he appealed his removal to the MSPB. The Administrative Judge sustained the petitioner’s removal. The MSPB affirmed. Then, a panel of the Federal Circuit granted review and sustained all charges except for the lack of candor charge, and additionally found that MSPB erred by not allowing petitioner to raise his affirmative defense. The Federal Circuit granted the Department of Justice’s petition to hear the case en banc.
Question Presented: In a MSPB action, can preference-eligible FBI employees raise an affirmative defense to an adverse employment action under 5 U.S.C. § 7701(c)(2)(C) regarding whistleblower reprisal?
Holding: No. FBI employees are excluded from raising this defense under 5 U.S.C. § 7511(a)(1), which limits the Civil Service Reform Act to certain employees. Even under 5 U.S.C. § 2303, decisions made by the Office of Professional Responsibility, the Office of the Inspector General, and the Director regarding whistleblower reprisal are not reviewable. Therefore, the MSPB did not err and the panel is reversed on this part.
Reasoning: The legislative history of the Civil Service Reform Act (“CSRA”) indicates that Congress did not intend the MSPB’s jurisdiction to extend to all adverse actions or employees of the federal government. Under the CSRA, covered employees are those defined in § 7511(a)(1). However, employees of some agencies, including the FBI, are excluded from coverage unless they are preference-eligible employees. Unlike the CSRA, which does not allow for an Individual Right of Action, the Whistleblower Protection Act allows federal employees to bring claims for actions that constitute whistleblower reprisal. The CSRA includes whistleblower retaliation as an affirmative defense. However, because the statute explicitly excludes FBI employees, FBI employees are not able to raise whistleblower retaliation as an affirmative defense under § 7701(c)(2)(C), even if they are preference-eligible employees.
FBI employees can raise a similar defense under § 2303 only when employees make whistleblower disclosures to the Department of Justice. Under § 2303, FBI employees, regardless of preference, do not have an Individual Right of Action (“IRA”) and must bring claims to the Office of Professional Responsibility, the Office of the Inspector General and the Director, Office of Attorney Recruitment and Management. The decisions made by the Office of Professional Responsibility, the Office of the Inspector General and the Director in determining whether there is any whistleblower reprisal against a person are similar to the considerations taken by Office of Special Counsel and the Board; therefore, no review is permitted. While the petitioner may dispute adverse employment actions to the MSPB, he may not raise the whistleblower reprisal defense because he is an FBI agent and, therefore, is not a covered employee. The decision to change remedies for whistleblower reprisal for preference-eligible FBI employees is up to Congress and not the courts to make. Even though the Whistleblower Reprisal Act has been debated multiple times in Congress, the FBI remedy provisions have not changed. Additionally, the court noted that because FBI employees can bring claims under § 203, any interpretation allowing FBI employees to use § 7701 would be superfluous. The court acknowledged that Congress’ reason for excluding FBI employees from asserting an affirmative defense under § 7701(c)(2)(c) resulted from the role of the FBI as an investigating counterintelligence agency. Congress felt that because the role of the FBI is sensitive in nature, it “require[s] as great a degree of insulation with regard to its personnel function as is practical.” Id. at 717. Although Congress removed the defense under § 7701, it placed the authority on the president so that any claims “would not be to the outside but to the Attorney General.” Id. The court concluded that it did not have jurisdiction to hear whistleblower reprisal claims from FBI employees.
Dissents: Judge Plager, joined by Judge Linn, opined that the majority opinion engaged in “an exhaustive parsing of statutes and legislative history in an effort to infer the ‘right’ answer.” 874 F.3d at 718. The majority opinion misconstrues what the case is in fact about—fairness. In this case, the petitioner is being judged by the defendant. The petitioner is making a claim against the FBI and the FBI is the one determining the outcome. When Congress gave certain veterans employed by the FBI preference-eligible status, it allowed these employees to have their complaints heard by the MSPB, a neutral third party. As a neutral third party, the MSPB is required to ensure that employees receive fair and equitable treatment, particularly when it comes to whistleblower reprisal. Though the petitioner could bring his case to MSPB, he could not defend himself from government action and receive fair treatment because he could not raise the affirmative defense of whistleblower reprisal. Even though the MSPB may consider whistleblowing as a mitigating factor in other circumstances in the petitioner’s case, the MSPB did not. Therefore, the petitioner was entitled to appeal to the court because MSPB did not give the petitioner a fair and proper hearing, thereby denying him due process.
Judge Linn, joined by Judge Plager, found that the majority opinion misconstrued the petitioner’s claim. The petitioner is requesting the court to review the “propriety of the FBI’s adverse employment action under 5 U.S.C § 7513(d).” Id. at 721. When Congress provided preference-eligible status to veterans, it allowed the MSPB to review the FBI’s action to determine if the actions would promote the efficiency of service. In cases where “the Agency action was procedurally flawed . . . or where the decision was not in accordance with [the] law,” the Agency’s actions are vacated. Id. at 722. Therefore, any action to remove an employee because of whistleblowing is not in accordance with the law. The petitioner’s whistleblower claims were required to be considered by the MSPB when making its determination. Moreover, the majority is inferring a limitation to preference-eligible employees raising claims of whistleblower protection that is counter to what is explicitly referred to in § 2303, under violations of law. In addition, any ambiguity in the statute should be interpreted in favor of the veteran. While there is a separate statute for FBI employees to bring whistleblower claims, the majority opinion did not address how it arrived at the conclusion that it is the only method for FBI employees to use. Judge Linn opines that the statute does not indicate exclusivity and that any reference to any employee should be construed as the offender (the whistleblower). Moreover, § 2303 of the statute does not reference any distinction between preference-eligible employees and non-preference eligible employees. Therefore, the majority is inferring a limitation for internal review for which Congress did not explicitly intend. In addition, the majority’s interpretation of § 7701(c)(2) is flawed because there is no superfluity since the statutes have different scope. Furthermore, § 7701 does not exclude the affirmative defense. Rather, the exclusion is in § 2303(b)(8), where there is no indication that the exclusion was meant to apply to § 2303(b). Moreover, the arguments that national security concerns merit internal review do not apply to preference-eligible employees because Congress granted review despite these concerns. Finally, all the cited post-CSRA cases have held that judicial review is available to the petitioner.